Personal protection order (PPO); Nondomestic stalking; MCL 600.2950a(1); MCL 750.411h; “Course of conduct”; “Harassment”; “Unconsented contact”; Emotional distress; Constitutionally protected activity; First Amendment; “Fighting words”; Chaplinsky v New Hampshire; CNN v SEB; Adequacy of findings; MCL 600.2950a(7); MCR 3.705(B)(6)

The court held that the trial court did not abuse its discretion by issuing petitioner-neighbor a nondomestic stalking PPO because the petition and hearing evidence established respondent-neighbor’s willful course of harassing unconsented contact. Petitioner alleged a series of incidents in which respondent used racial slurs, moved objects onto petitioner’s property, damaged or interfered with petitioner’s property, and escalated confrontations between the neighboring households. On appeal, the court first held that the trial court made an adequate record because it held two hearings, gave oral reasons, and entered written orders, so “appellate review would not be furthered by remanding this case for a second time.” The court next held that several incidents constituted unconsented contact, including respondent intentionally blowing dirt and rocks onto petitioner’s vehicle, moving cement blocks onto petitioner’s property in a manner that damaged a trailer, intentionally striking petitioner’s trash can, taking petitioner’s ladders, and initiating the 2/25 verbal confrontation. The court rejected respondent’s claim that his repeated racial invective was protected speech, explaining that although the First Amendment protects unpopular or offensive expression, it does not protect “fighting words,” and respondent’s language and conduct provided “necessary context” for contacts that otherwise might have appeared innocent. The court also distinguished CNN, reasoning that respondent’s “repeated use of racial invectives alone” did not support the PPO, but his words could be considered with his conduct to show intent. Affirmed.

Third-degree fleeing & eluding; MCL 257.602a(3)(b); Flight instruction; M Crim JI 4.4; People v Armstrong; Intent; Prior police contacts; MRE 404(b); MRE 403; Opening the door; People v Benton; Rebuttal evidence

The court held that the trial court did not err by giving the flight instruction, and that defendant was not entitled to relief based on the prosecutor’s questioning about his prior police contacts. He was convicted of third-degree fleeing and eluding after riding his motorcycle through a Dream Cruise traffic-closure area, ignoring an officer’s stop gesture, and speeding away while a marked police vehicle followed with lights and siren activated. On appeal, the court held that the evidence supported M Crim JI 4.4 because defendant “drove an estimated 70 to 80 mph away from the gas station,” his passenger tried to get his attention, and he stopped “in the back area of a business.” The court rejected defendant’s claim that the flight instruction was subsumed within fleeing and eluding, explaining that his “actions after the officer gestured to stop and activated his lights supported the flight instruction.” As to prior police contacts, the court held that defendant opened the door because he was “the first party to introduce evidence of his prior contacts with the police” to show that he routinely stopped for officers, and the prosecutor was entitled to question him further on that subject. Affirmed.

Sufficiency of the evidence; AWIGBH; People v Stevens; Felony-firearm; People v Moore; Self-defense; MCL 780.972(1); Aiding & abetting; MCL 767.39; People v Ventour; Inconsistent verdicts; People v Montague; Whether the jury instructions were confusing; People v McKinley

The court held that there was sufficient evidence to support defendant’s AWIGBH and felony-firearm convictions, and no reversible error occurred related to the jury instructions. The case arose from a shooting that took place during a THC edibles sales transaction. Defendant argued that “the evidence was insufficient to sustain his convictions under an aiding-and-abetting theory because his codefendant and principal, [J], was acquitted and their inconsistent verdicts were the result of juror confusion.” They were tried in a joint trial with separate juries – Jury A for J and Jury B for defendant. He contended that “because Jury A found [J] acted in self-defense,” there was no crime for him to aid and abet. But the court concluded that “Jury B was entitled, given the evidence presented to it, to find the prosecution carried its burden of proving [J] did not act in justifiable self-defense, even if Jury A came to the opposite conclusion. Jury B heard the testimony of the victim, who was shot several times and is permanently paralyzed as a result. It also heard” a police officer testify that J “admitted he had a firearm and was involved in the shooting. Jury B was instructed on self-defense but found the prosecution carried its burden of proving that [J] did not act in self-defense. On the evidence presented, Jury B could rationally find an actual crime was committed.” As to aiding and abetting, evidence supported “the inference that defendant arranged the meeting by hiding his identity, inducing the commission of the crime, and it shows [he] contributed to the physical assault in several ways. These actions satisfy the ‘acts of assistance’ element of aiding and abetting.” As to intent, he “brought armed ‘backup’ to the confrontation, demonstrating his awareness that a physical altercation involving firearms was possible.” As to defendant’s inconsistent verdicts argument, based “on the record, the instructions, when read as a whole, clearly, accurately, and adequately presented the requirements to convict [him] under an aiding and abetting theory.” Further it was “not ‘evident that the jury was confused, did not understand the instructions, or did not know what it was doing’ in this case.” Affirmed.

Second-degree murder; MCL 750.317; Voluntary manslaughter instruction; Waiver; Sentencing; OV 5; MCL 777.35(1)(a) & (2); Serious psychological injury; People v Calloway; OV 19; MCL 777.49(c); Interference with administration of justice; Witness intimidation; Hearsay; Forfeiture by wrongdoing; MRE 804(b)(6); Unavailable witness; Preliminary exam testimony; Harmless error

The court held that defendant waived his challenge to the omitted voluntary-manslaughter instruction, that OVs 5 and 19 were properly scored, and that the trial court did not abuse its discretion by admitting witness-SB’s preliminary-exam testimony and recorded police interview under MRE 804(b)(6). Defendant was convicted of second-degree murder after witnesses saw a man known as “Moe” chase the victim before the victim was found stabbed, and after police found a knife, bleach odor, and possible blood evidence linked to defendant. On appeal, the court first held that the manslaughter-instruction issue was waived because defense counsel expressed satisfaction with the instructions, and “[w]aiver extinguishes any error.” The court next held that OV 5 was properly scored at 15 points because the victim’s mother and adoptive mother described devastating loss and emotional trauma, supporting that professional treatment “may be necessary.” It also held that OV 19 was properly scored at 10 points because defendant’s conduct after the stabbing, including cleaning with bleach, denying he left home, and telling SB he knew “who she was, knew what she had reported, and knew the color and make of her vehicle,” was designed to hinder the investigation and intimidate witnesses. Finally, the court held that forfeiture by wrongdoing applied because defendant or his associates engaged in wrongdoing intended to make SB unavailable, and the wrongdoing did so. Affirmed.

Sentencing; Inclusion of a student safety zone provision in defendant’s judgment of sentence (JOS); Sentencing conditions not authorized by statute; People v Lafey; 2021 amendment of the Sex Offenders Registration Act (SORA); Remedy; People v Thomas

Holding that the trial court plainly erred in including a student safety zone provision in defendant’s JOS, the court remanded for entry of an amended JOS removing the provision. He was convicted of kidnapping, CSC I, and felonious assault. His JOS included a provision prohibiting him from residing, working, or loitering “within a student safety zone defined as 1,000 feet of school property” unless he met a statutory exemption. He challenged this provision on appeal and requested resentencing. The prosecution agreed that it was impermissible but requested remand for entry of an amended JOS striking the condition, rather than resentencing. The court agreed with the parties that the trial court lacked the authority to include the provision as a condition of defendant’s sentence. While 2006 amendments to the SORA had created such exclusion zones, 2021 amendments removed the student safety zone provisions. Defendant was sentenced in 2024, years after the provisions were repealed. Thus, the trial court “lacked statutory authority to impose this sentencing condition” and its plain error in doing so affected his substantial rights. But the court concluded that his requested relief was not warranted here. It has “held that resentencing is not required if the circumstances demonstrate that the trial court’s misconception of the law would not have affected its discretionary determination” as to the length of a defendant’s sentence. The erroneous inclusion of the student safety zone condition “had no impact on the length of defendant’s sentence[.]”

Search & seizure; Motion to suppress; “Probable cause” for a search warrant; United States v Sanders; The good-faith exception to the exclusionary rule; United States v Leon; United States v Christian; Admission of proffer statements; United States v Grogan; FRE 410(a)(4); Waiver by consenting to use of the statements if defendant offers inconsistent evidence; Waiver of Confrontation Clause challenge

[This appeal was from the WD-MI.] The court held that the district court did not err in denying defendant-Walker’s motion to suppress evidence obtained pursuant to a search warrant, or in admitting his proffer statements. It also found that he waived his Confrontation Clause challenge. Thus, it affirmed his drug conspiracy-related convictions. He unsuccessfully moved to suppress the evidence discovered during a search of a house referred to as the Wagner Ave. residence. The court first concluded that, “considered as a whole, the warrant affidavit here cleared the probable-cause bar.” It detailed his criminal history, including that he was on federal probation for a narcotics sell/distribute charge, had three prior state narcotic convictions from 2007 through 2015, and a prior federal possession with intent to distribute cocaine charge from 2017. Taken together, his “history of narcotics trafficking and the affiant’s observations of two drug sales (one confirmed and one suspected), shortly after Walker left the Wagner Ave. residence, created probable cause to believe that a search would uncover illegal contraband.” The court rejected his assertion that the affidavit “did not do enough either to connect evidence of drug dealing to the residence or to” show that he lived there. The court found that “a ‘practical, common sense evaluation of all of the circumstances’” showed that it contained sufficient information to search the house. He left there right before the confirmed drug sale. “He drove ‘straight to’ the sale point, making no stops along the way. He returned to the house sometime afterwards. Later that day, he again left the Wagner Ave. house, got into the Jeep with a child, and was surveilled driving to the suspected drug exchange with an unknown male at” a store. He then “returned to the Wagner Ave. house. His girlfriend of six years owned both the house and the Jeep. This was sufficient to suggest that evidence of drug dealing would be found in the” house and to establish probable cause to search it. And even if probable cause had not been established, “the good-faith exception required denial of the suppression motion.” As to the use of his proffer statements, the court held that he waived his FRE 410 challenge. His attorney conceded “that the opening statement opened the door and rendered contrary statements admissible.”

Taxing costs; MCR 2.625(F)(3); Whether an objection was timely; Whether a late objection can be considered; Theophelis v Lansing Gen Hosp; Harmless error; MCR 2.613(A); Prejudice; What costs were taxable; Expert witness’s trial preparation when there was no trial; MCL 600.2164(1); Carlsen Estate v Southwestern MI Emergency Servs PC; Home-Owners Ins Co v Andriacchi; Survey costs; Sundry costs under MCL 600.2441

The court held that the trial court erred in considering plaintiffs’ untimely objection to defendants’ bill of costs, but the error was harmless because the costs incurred to obtain the property surveys were not taxable. It also concluded that the trial court abused its discretion in failing to tax $40 in sundry costs. The case involved a property dispute. After a joint survey undertaken pursuant to a court order, the trial court granted defendants summary disposition. While plaintiffs’ motion for reconsideration was pending, defendants filed a bill of costs that “included sundry costs under MCL 600.2441 ($20 for proceedings before trial and $20 for a motion resulting in a dismissal or judgment); disbursements under MCL 600.2529 ($40 for motion fees); and ‘other costs’ consisting of $3,200 for” surveys they obtained before the litigation (the True North surveys), $2,399 for their half of the court-ordered survey, and $300 for their share of mediation. The trial court awarded them $340. On appeal, the court concluded that even if the bill of costs could have been stayed until the trial court ruled on plaintiffs’ reconsideration motion, as the trial court suggested, their objection was still untimely. Defendants cited Theophelis for “the proposition that late-filed objections to a bill of costs cannot be considered.” While that decision was vacated, the court found that its “reasoning, which was rooted in the court rule’s plain language, was sound.” But it determined that the procedural error here did “not independently warrant appellate relief.” It held that, even if the case had gone “to trial, the True North surveyor would not have earned an expert witness fee” given that there was no evidence “the surveys were in anticipation of litigation, or that testimony preparation occurred[.]” Further, the parties later “agreed that they would rely on the independent joint survey.” No statutory authority supported taxing costs for the True North surveys. And defendants’ portion of the “joint survey was not a taxable cost because it was incurred pursuant to a court order” reflecting the parties agreed to be equally responsible for the cost. As to the sundry costs, the trial court provided no reason for denying them. Affirmed in part and remanded for entry of an amended order.

Personal protection order (PPO); Nondomestic stalking; MCL 600.2950a(1); MCL 750.411h; “Course of conduct”; “Harassment”; “Unconsented contact”; Emotional distress; Constitutionally protected activity; First Amendment; “Fighting words”; Chaplinsky v New Hampshire; CNN v SEB; Adequacy of findings; MCL 600.2950a(7); MCR 3.705(B)(6)

The court held that the trial court did not abuse its discretion by issuing petitioner-neighbor a nondomestic stalking PPO because the petition and hearing evidence established respondent-neighbor’s willful course of harassing unconsented contact. Petitioner alleged a series of incidents in which respondent used racial slurs, moved objects onto petitioner’s property, damaged or interfered with petitioner’s property, and escalated confrontations between the neighboring households. On appeal, the court first held that the trial court made an adequate record because it held two hearings, gave oral reasons, and entered written orders, so “appellate review would not be furthered by remanding this case for a second time.” The court next held that several incidents constituted unconsented contact, including respondent intentionally blowing dirt and rocks onto petitioner’s vehicle, moving cement blocks onto petitioner’s property in a manner that damaged a trailer, intentionally striking petitioner’s trash can, taking petitioner’s ladders, and initiating the 2/25 verbal confrontation. The court rejected respondent’s claim that his repeated racial invective was protected speech, explaining that although the First Amendment protects unpopular or offensive expression, it does not protect “fighting words,” and respondent’s language and conduct provided “necessary context” for contacts that otherwise might have appeared innocent. The court also distinguished CNN, reasoning that respondent’s “repeated use of racial invectives alone” did not support the PPO, but his words could be considered with his conduct to show intent. Affirmed.