Prosecutorial error; Vouching; Invoking the jury’s sympathy; Disparaging defendant for exercising his jury trial right; Ineffective assistance of counsel; Failure to raise an erotic asphyxiation defense; Stipulating to the introduction of defendant’s recorded jail-call; Failure to lay a “proper foundation” to admit evidence & to adequately investigate the victim; Referring to jurors by numbers; People v Hanks; “Anonymous jury”; People v Williams; Hearsay; Sexual-assault nurse testimony about the victim’s statements during her exam; MRE 803(4); Sentencing; OVs 7 & 8; MCL 777.37(1)(a); “Sadism” (MCL 777.37(3)); MCL 777.38(1)(a)

The court rejected defendant’s prosecutorial error and ineffective assistance of counsel claims, and held that the trial court did not violate his due process rights by referring to the jurors by number. The trial court also did not err in admitting the sexual-assault nurse’s testimony about the victim’s statements during her exam, or in scoring 50 points for OV 7 and 15 points for OV 8. Thus, the court affirmed his convictions of CSC I, CSC II, unlawful imprisonment, and assault by strangulation, as well as his sentences of 225 months to 50 years for each CSC I conviction, 7 to 15 years for the CSC II and unlawful imprisonment convictions, and 4 to 10 years for the assault conviction. He claimed that the prosecution “erred by (1) improperly vouching for the victim’s credibility, (2) improperly invoking the jury’s sympathy, and (3) disparaging defendant for exercising his right to a jury trial.” The court disagreed in all respects. The “prosecutor never stated or implied that she had special knowledge about the victim’s credibility. She simply argued that, given the facts in this case, it could be inferred that she had no apparent motive to lie. This was not improper vouching.” In addition, “reading the challenged remarks in context, the prosecutor’s statements were not made to invoke sympathy; they were in furtherance of her proper argument in support of the victim’s credibility.” The court also determined that the statements defendant contended denigrated him for exercising his jury trial right, when read in context, “were also a continuation of the prosecutor’s permissible argument regarding the victim’s credibility. The prosecutor was simply arguing that it would be unlikely for the victim to fabricate this story, because it would result in her having to divulge highly intimate and personal aspects of her life to strangers during a criminal proceeding.” The court also rejected defendant’s claims that his “trial counsel was ineffective by: (1) failing to raise a defense of erotic asphyxiation, (2) stipulating to the introduction of a recorded jail-call defendant made, (3) failing to lay the ‘proper foundation’ to admit video evidence of an interview the victim underwent about the assaults, and (4) failing to adequately investigate the victim and question her about her criminal history.”

Other acts evidence; MCL 768.27b(1) & (4)(d); People v Rosa; MRE 404(b); People v VanderVliet; People v Mardlin; Common scheme; Danger of unfair prejudice; MRE 403; Limiting jury instruction; Ineffective assistance of counsel; Failure to request a special jury instruction on what constituted reasonable force for parental discipline; Standard jury instruction comporting with M Crim JI 17.24 & consistent with MCL 750.136b(9); Sufficiency of the evidence for a second-degree child abuse conviction

The court held that the other acts evidence at issue was probative, and while “it was prejudicial to defendant,” it was not so prejudicial that the court was convinced the trial court’s decision to admit it “under MRE 404(b) fell outside the range of reasonable outcomes.” The court also held that (1) his trial counsel was not ineffective for failing to request a special jury instruction on “what constituted reasonable force for parental discipline” and (2) there was sufficient evidence to support his second-degree child abuse conviction. He was also convicted of domestic violence (second offense). The case arose from his “physical attack on his eight-year-old son.” He argued that he was “entitled to a new trial because the trial court abused its discretion by admitting” other acts evidence of his “history of child abuse and domestic violence.” As to admission under MCL 768.27, the court noted the trial court dismissed the 10-year limitation in MCL 768.27b(4)(d) “as ‘arbitrary’ and admitted the evidence in the interest of justice for the same reasons that it would otherwise have been admitted if it had occurred less than 10 years ago.” But it also determined that the “evidence was admissible under MRE 404(b) because it demonstrated evidence of intent, absence of mistake, lack of accident, or common plan or scheme.” And in contrast to MCL 768.27b, MRE 404(b) does not have a temporal limitation. The court held that the trial court did not abuse its discretion in ruling that the “evidence was both material and probative as to defendant’s common plan or scheme of using physical abuse as parental discipline against his children.” It concluded the evidence had “sufficient common features to the actions” for which he was charged here. The “evidence reflected that defendant previously grabbed one of his children by her hair and lifted her nearly off the ground and, in this case, [he] grabbed the victim by his head and forced him onto his bed. The trial court found that this evidence was probative because it tended to show intent, absence of mistake, absence of accident, or common plan or scheme.” The court agreed “that the common features rendered this evidence logically relevant and probative. Further, the probative value was not substantially outweighed by the danger of unfair prejudice for the purposes of MRE 403.” Affirmed.

Plea agreements; Specific performance; Santobello v New York; Other acts evidence; MCL 768.27b; People v Watkins; Ineffective assistance of counsel; Failure to object; People v Ericksen; Evidentiary hearing; People v Ginther

The court held that defendant was not entitled to specific performance of an alleged plea agreement, that the trial court did not abuse its discretion by admitting other acts evidence under MCL 768.27b, and that defendant was not entitled to relief on his ineffective-assistance or evidentiary-hearing claims. Defendant was convicted of three counts of CSC III involving a 14-year-old victim. The trial court admitted prior-acts testimony from a 2009 case involving an 11-year-old victim. On appeal, the court first held that defendant was not entitled to specific performance because the prosecutor’s email was “indicative of on-going plea negotiations, not an affirmative plea offer that would be subject to immediate acceptance.” Further, defendant rejected plea offers on the record, any off-record agreement would not be enforceable under MCR 2.507(G), and the trial court was correct that there was no showing of detrimental reliance. The court next held that the other acts evidence was properly admitted because, although the 13-year gap and isolated nature of the prior act weighed against admission, both incidents involved sexual conduct against young male victims, defendant was introduced to both victims “as a girlfriend’s ‘uncle[,]’” and the prosecution needed evidence beyond the victim’s testimony. The court further held that counsel was not ineffective because she filed a written objection raising arguments aligned with the Watkins factors, and “‘failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel.’” Finally, the court held that defendant was not entitled to an evidentiary hearing because he failed to show facts requiring further development of the record. Affirmed.

Insurance; Agent’s failure to procure requested coverage; Holton v A+ Ins Assocs, Inc; Comparative negligence; Insurance policy review; MCL 600.6304; Zaremba Equip, Inc v Harco Nat’l Ins Co; Renewal rule; Duty to read policy; Parmet Homes, Inc v Republic Ins Co; Damages; Apportionment; Warren v McLouth Steel Corp

The court held that the trial court did not err by rejecting comparative-fault arguments against plaintiff-Trailer X-Press and defendant-Jones, but remand was required for further articulation of the apportionment of the damages award. The appeal arose after Trailer X-Press obtained a judgment against Jones and defendant-LWJ Trucking for damage to a refrigerated trailer, and defendants then prevailed against third-party defendant-NTA on a tort theory for failure to procure requested insurance. On appeal, the court held that Trailer X-Press could not be assigned comparative fault because its employee had no legal duty to inform LWJ Trucking that the trailer lacked coverage, and “without owing a duty to the injured party,” there could be no proximate cause or “fault” for comparative-fault purposes. The court next held that Jones’s failure to read the new Canal policy did not constitute comparative fault because the trial court found he “reasonably believed” it was an effective renewal of the prior Lancer policy, and under the renewal exception an insured has no duty to read a renewed policy without actual notice of alteration. The court emphasized the trial court’s credibility findings, including “NTA’s failure to produce the ‘very important’ Internal Equipment List[.]” But the court remanded because the judgment did not explain how the $127,640.02 award was calculated, and “remand for a determination of damage apportionment is proper” when unrecoverable expenses may have been included. Affirmed in part and remanded.

Insurance; Agent’s failure to procure requested coverage; Holton v A+ Ins Assocs, Inc; Comparative negligence; Insurance policy review; MCL 600.6304; Zaremba Equip, Inc v Harco Nat’l Ins Co; Renewal rule; Duty to read policy; Parmet Homes, Inc v Republic Ins Co; Damages; Apportionment; Warren v McLouth Steel Corp

The court held that the trial court did not err by rejecting comparative-fault arguments against plaintiff-Trailer X-Press and defendant-Jones, but remand was required for further articulation of the apportionment of the damages award. The appeal arose after Trailer X-Press obtained a judgment against Jones and defendant-LWJ Trucking for damage to a refrigerated trailer, and defendants then prevailed against third-party defendant-NTA on a tort theory for failure to procure requested insurance. On appeal, the court held that Trailer X-Press could not be assigned comparative fault because its employee had no legal duty to inform LWJ Trucking that the trailer lacked coverage, and “without owing a duty to the injured party,” there could be no proximate cause or “fault” for comparative-fault purposes. The court next held that Jones’s failure to read the new Canal policy did not constitute comparative fault because the trial court found he “reasonably believed” it was an effective renewal of the prior Lancer policy, and under the renewal exception an insured has no duty to read a renewed policy without actual notice of alteration. The court emphasized the trial court’s credibility findings, including “NTA’s failure to produce the ‘very important’ Internal Equipment List[.]” But the court remanded because the judgment did not explain how the $127,640.02 award was calculated, and “remand for a determination of damage apportionment is proper” when unrecoverable expenses may have been included. Affirmed in part and remanded.

Zoning; Nuisance per se; MCL 125.3407; Morse v Colitti; Zoning violations; Injunction; Mandatory abatement; Lima Twp v Bateson; Equitable defenses; Estoppel against municipality; Hughes v Almena Twp

The court held that the trial court properly granted plaintiff-township summary disposition and ordered removal of defendant’s structure because it violated the zoning ordinance and therefore constituted a nuisance per se. Defendant constructed an addition to a pole barn without permits and in violation of setback and size requirements. The township sought injunctive relief requiring removal. On appeal, the court held that a zoning violation constitutes a nuisance per se because “a structure erected in violation of a zoning ordinance constitutes a nuisance per se,” and under the statute “the court shall order the nuisance abated[.]” The court emphasized that defendant admitted he built the structure without permits and that it violated setback and square-footage limits, so there was no genuine issue of material fact. The court rejected defendant’s equitable and good-faith arguments, explaining that property owners are “‘charged with knowledge of the restrictive provisions of lawfully adopted ordinances’” and that “‘[c]asual private advice or assurance’” from officials does not estop enforcement. It also rejected defendant’s attempt to require proof of harm, clarifying that a nuisance per se exists “‘regardless of location or surroundings.’” Because abatement is mandatory under the statute, the trial court did not abuse its discretion by ordering removal of the structure. Affirmed.

Probable cause to authorize the petition; MCL 722.638; In re Ferranti; Due process; Whether reunification efforts were required; MCL 712A.19a(2)(a); Criminal sexual conduct (CSC) as an “aggravated circumstances” (MCL 722.638(1)(a)(ii)); Doctrine of anticipatory neglect; Removal; MCR 3.965(C)(2)-(4); MCL 712A.13a(9)

The court held that the trial court did not abuse its discretion in authorizing the petition seeking termination of respondents’ parental rights at disposition. Further, respondent-father’s due-process rights were not violated by allowing the DHHS to remove his son without creating a written safety plan, and respondents did not “establish any error during the removal proceedings warranting reversal.” The case began after CPS investigated allegations that the father “sexually abused his stepdaughter, MB.” Both respondents argued “the trial court erred by authorizing the petition because the sexual assault allegations were not sufficiently credible to meet the probable-cause standard.” The court held that there was “no clear error in the factual findings supporting the probable-cause determination in this case. The referee found that there were credible allegations that [the] father had sexually abused MB via [CSC] involving penetration and respondent-mother was aware of the allegations but failed to protect MB from this abuse. The referee’s findings, which were adopted by the trial court, were supported by the testimony of the caseworker who stated that MB consistently told at least eight different people that [the] father had been sexually assaulting her for years.” While she had previously recanted similar allegations, “according to MB’s therapist, the allegations were ‘consistent enough to raise red flags.’” In addition, “MB reported to the CPS investigator that respondents told her to lie and tell the DHHS that she fabricated the allegations. The referee found the CPS investigator’s testimony credible[.]” Based on “these facts, the trial court did not clearly err by finding, under the probable-cause standard, that there were credible allegations that [the] father had sexually abused MB and that [the] mother failed to protect MB from this abuse.” The court added that, while there was no evidence the father abused the other children, it was “not left with a definite and firm conviction that the trial court made a mistake by concluding that there was probable cause to believe that [they] were also at risk of abuse or neglect.” As to the father’s due process claim, the “DHHS had a statutory duty to file a petition and request that the” trial court terminate his parental rights to his son OE “at the initial disposition . . . because [the] father was accused of sexually abusing OE’s half-sibling[.]” Affirmed.

Termination under § 19b(3)(c)(i); Reasonable reunification efforts; MCL 712A.18f; Americans with Disabilities Act (ADA) accommodations; In re Hicks/Brown; Children’s best interests; Permanency; Relative placement; In re Olive/Metts

The court held that the trial court did not err in finding reasonable reunification efforts, that § (c)(i) was established, and that termination was in the children’s best interests. The case arose from severe medical neglect that resulted in one child requiring resuscitation after untreated respiratory illness. The DHHS provided services including parenting classes, psychological and medical evaluations, and transportation assistance. On appeal, the court held that the reasonable-efforts claim failed because the DHHS provided extensive accommodations, including “direct transportation . . . [which] was not a ‘normal’ service,” and respondent failed to show she “‘would have fared better if other services had been offered.’” The court next held that § (c)(i) was proven because respondent “did not accomplish any meaningful change in the conditions” despite three years of services and continued inability to manage medical care, and there was “no reasonable likelihood” the conditions would be rectified within a reasonable time. Finally, the court held that termination was in the children’s best interests, emphasizing their progress and stability in placement, that one child’s “severe emotional responses” were triggered by respondent, and that the caregiver was meeting all needs and “willing to adopt,” making permanency, stability, and finality outweigh any prior bond. Affirmed.

Child’s best interests; In re Rippy; Failure to consider guardianship as an alternative; In re Lombard; Effect of a determination there are statutory grounds to support termination; In re Moss

Holding that the trial court did not clearly err in finding that terminating respondent-mother’s parental rights was in the child’s best interests, or otherwise err as to the possibility of a guardianship during the proceedings, the court affirmed the termination order. The record showed “the trial court considered guardianship, and DHHS pursued the guardianship alternative for a significant amount of time during these proceedings.” The DHHS investigated the child’s “first foster family regarding guardianship, but they ultimately declined.” There was also testimony that it looked on a quarterly basis for relatives “who would be willing to take guardianship, but those searches did not reveal any placements for” the child. In addition, the record indicated that respondent “never provided any potential relatives who could take guardianship of” the child when DHHS was pursuing the guardianship possibility. Next, she contended “the trial court failed to consider her constitutional right to raise her child because guardianship was a less-restrictive alternative.” But the court noted “that once a parent has been determined unfit, i.e., there are statutory grounds to support termination, ‘the child’s interest in a normal family home is superior to any interest the parent has.’ Therefore, the trial court had no obligation to place predominant weight on [the] mother’s constitutional right to parent because, when making the best-interest determination, it is the child’s interest that must prevail.” As to the trial court’s best-interest analysis, the court held that, given the facts of the case, it “did not clearly err by determining that it was in” the child’s best interests to terminate the mother’s rights because she had no bond with the child, she “did not substantially comply with her case service plan for the majority of this two-year proceeding, and [she] had a substantial substance-abuse history that she refused to address.” In addition, the child “was doing well in the care of a prospective adoptive family.”

Zoning; Nuisance per se; MCL 125.3407; Morse v Colitti; Zoning violations; Injunction; Mandatory abatement; Lima Twp v Bateson; Equitable defenses; Estoppel against municipality; Hughes v Almena Twp

The court held that the trial court properly granted plaintiff-township summary disposition and ordered removal of defendant’s structure because it violated the zoning ordinance and therefore constituted a nuisance per se. Defendant constructed an addition to a pole barn without permits and in violation of setback and size requirements. The township sought injunctive relief requiring removal. On appeal, the court held that a zoning violation constitutes a nuisance per se because “a structure erected in violation of a zoning ordinance constitutes a nuisance per se,” and under the statute “the court shall order the nuisance abated[.]” The court emphasized that defendant admitted he built the structure without permits and that it violated setback and square-footage limits, so there was no genuine issue of material fact. The court rejected defendant’s equitable and good-faith arguments, explaining that property owners are “‘charged with knowledge of the restrictive provisions of lawfully adopted ordinances’” and that “‘[c]asual private advice or assurance’” from officials does not estop enforcement. It also rejected defendant’s attempt to require proof of harm, clarifying that a nuisance per se exists “‘regardless of location or surroundings.’” Because abatement is mandatory under the statute, the trial court did not abuse its discretion by ordering removal of the structure. Affirmed.