PEOPLE OF MI V STEVEN MICHAEL WACLAWSKIAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
December 29, 2009
Macomb Circuit Court
LC No. 2006-005698-FC
STEVEN MICHAEL WACLAWSKI,
Advance Sheets Version
Before: FORT HOOD, P.J., AND SAWYER AND DONOFRIO, JJ.
Defendant appeals as of right his jury trial convictions of one count of first-degree
criminal sexual conduct (CSC-I), MCL 750.520b, two counts of second-degree criminal sexual
conduct (CSC-II), MCL 750.520c, five counts of using a computer to produce child sexually
abusive material, MCL 752.797(3), and one count of producing child sexually abusive material,
MCL 750.145c(2). The trial court sentenced defendant to 209 to 480 months’ imprisonment for
the CSC-I conviction, 86 to 180 months’ imprisonment for both CSC-II convictions, and 95 to
240 months’ imprisonment for each of the remaining convictions, all sentences running
concurrently. Because none of defendant’s arguments on direct appeal or contained in his
Standard 4 brief1 merit relief, we affirm.
Defendant was initially arrested in Illinois when he traveled to that state to meet with a
person he thought was a 14-year-old boy. Defendant had “met” the boy through Internet chat
room communications (electronic messages) and arranged to meet him for sex. The boy was in
fact a police detective, and when defendant arrived at the assigned location he was arrested.2
When arrested, defendant admitted possessing child pornography on his computer.
Subsequently, detectives in Michigan searched defendant’s home and office computers,
Defendant raises several issues in propria persona in a supplemental brief, filed pursuant to
Supreme Court Administrative Order No. 2004-6, Standard 4.
Defendant pleaded guilty in Illinois to one count of indecent solicitation of a child, 720 Ill
Comp Stat 5/11-6, and was sentenced to two years’ imprisonment.
revealing various pornographic images depicting underage boys and defendant. The current
charges resulted from a search of defendant’s computers, which revealed hundreds of images of
male child pornography, some three dozen of which were taken in defendant’s home and
depicted three boys. The three boys had all spent the night at defendant’s home on multiple
occasions when no other adults were present. Three of the images, taken on August 23, 2001,
allegedly depicted defendant performing fellatio on a 14-year-old boy with the first initial K.3
Other photographs, taken on March 1, 2000, allegedly depicted P, a 12-year-old boy, with his
penis being measured with a ruler. Photographs taken on June 15, 2001, allegedly depicted M, a
10-year-old boy, who was also photographed with his penis being measured with a ruler.
Discovery of these pictures resulted in the Michigan charges against defendant.
The Attorney General’s office prosecuted the case and filed a notice seeking to admit
evidence of online electronic messages (chats) defendant exchanged with two underage boys
named “Coty” and “Jason” located in Ohio and Illinois, respectively. Both “Coty” and “Jason”
were in fact police officers. The prosecutor argued that the evidence was admissible pursuant to
MRE 404(b) to prove defendant’s intent, motive, scheme, plan, or system in perpetrating
criminal sexual acts. Defendant moved the trial court to suppress all evidence of his online chats
in Ohio and Illinois. The trial court granted defendant’s motion to exclude the evidence in an
opinion and order issued February 6, 2007, finding that the acts in Ohio and Illinois were
“substantially different” from the acts alleged in the instant case and, therefore, the probative
value was substantially outweighed by the danger of unfair prejudice. The prosecutor applied for
leave to appeal and moved to stay circuit court proceedings pending an interlocutory appeal.
This Court granted the prosecutor’s application and motion for a stay in an unpublished order
entered February 14, 2007 (Docket No. 276094).
In an unpublished opinion issued October 11, 2007, this Court reversed the circuit court’s
February 6, 2007, order excluding other acts evidence and remanded the matter to the circuit
court for trial. People v Waclawski, unpublished opinion per curiam of the Court of Appeals,
issued October 11, 2007 (Docket No. 276094). The internet chats constituting the challenged
“other acts evidence” were well documented by the panel that handled the interlocutory appeal in
the previous unpublished decision of this Court, thus, we include a portion of the fact section of
that opinion detailing defendant’s internet chats:
On February 25, 2006, defendant contacted “jason_12parma” in a chat
room, and they exchanged messages for about 45 minutes, discussing fellatio and
a possible future sexual encounter. Defendant asserted that he was a 42-year-old
man from Monroe, and “Jason” claimed to be a 12-year-old boy living in Ohio.
“Jason” was actually an undercover police officer. Defendant and “Jason”
communicated online on February 28, 2006, March 4, 2006, and March 6, 2006,
discussing fellatio and the possibility of getting together so that defendant could
perform fellatio on “Jason.” On March 4, 2006, defendant asked “Jason” if he had
For the privacy of the victims in this case, we refer to each of the three victims only by the first
letter of their first name to ensure anonymity.
been circumcised and whether he had ever measured his penis. When “Jason”
stated that he had never measured it, defendant asked him to estimate its size.
On March 10, 2006, “Jason” contacted defendant and they communicated
for about 90 minutes, discussing fellatio and arrangements they had made to meet
on the following Friday. Defendant stated that he would find a “nice hotel” and
perform fellatio on “Jason.” On March 13, 2006, “Jason” contacted defendant,
and they chatted about fellatio, masturbation, and the upcoming plans. On March
15, 2006, “Jason” contacted defendant, and they chatted about fellatio,
masturbation, and they confirmed the upcoming plans for that Friday, March 17,
2006. Apparently, defendant did not arrive at the prearranged location on that
date. Rather, he traveled to Wheaton, Illinois, for a similar encounter.
On March 4, 2006, defendant contacted “cotyme_91” in a chat room, and
they exchanged messages for about 50 minutes, discussing fellatio, and
specifically, defendant performing fellatio on “Coty.” “Coty” lived in Illinois and
claimed to be a 14-year-old boy. “Coty” was actually an undercover police
officer. On March 15, 2006, “Coty” contacted defendant, and they chatted online,
discussing defendant performing fellatio on “Coty” and a possible encounter the
following weekend. “Coty” stated that his penis was small, and defendant asked
how small. On March 17, 2006, “Coty” and defendant made arrangements to meet
at a park in Wheaton on March 18, 2006, and go to defendant’s hotel room, where
defendant planned to perform fellatio on “Coty.” When defendant arrived at the
meeting place, he was arrested. In July 2006, defendant was convicted of indecent
solicitation of a child, 720 Ill Comp Stat 5/11-6, and sentenced to two years in
prison. [Id. unpub op at 2.]
In reversing the circuit court’s order excluding the other acts evidence, this Court found
that “the circuit court’s discretion was exercised within an erroneous legal framework.” Id.
unpub op at 4. This Court then remanded the case back to the trial court for reconsideration of
the issue in light of this Court’s opinion. Id. On remand, at a hearing on November 2, 2007, the
trial court revisited the other acts evidence issue and reversed itself, holding that it would allow
the evidence under MRE 404(b) “insofar as it is logically relevant.” The matter eventually
proceeded to a jury trial where defendant was convicted as charged. Defendant now appeals as
Defendant first argues that this Court must dismiss the charges against him because the
prosecution failed to bring him to trial within 120 days of its request for disposition under the
Interstate Agreement on Detainers (IAD), MCL 780.601. “We review for an abuse of discretion
a trial court’s decision on a motion to dismiss.” People v Stone, 269 Mich App 240, 242; 712
NW2d 165 (2005). A court abuses its discretion when it selects an outcome outside the range of
reasonable and principled outcomes. People v Uphaus (On Remand), 278 Mich App 174, 181;
748 NW2d 899 (2008). “However, we review for clear error a trial court’s attributions of delay.”
Stone, supra at 242. “Clear error exists if the reviewing court is left with a definite and firm
conviction that a mistake has been made.” Id. “Additionally, we review de novo the
interpretation and application of statutes.” Id.
There are two subparts to this issue on appeal. First, there is the question whether the
120-day or the 180-day deadline set by the IAD applies to the facts of this case. It does not
appear that the trial court ever addressed this question. Next, the second question involves the
application of either the 120-day or the 180-day deadline to the procedural history of this case
and whether pursuant to the IAD the trial court abused its discretion when it denied defendant’s
motion for dismissal of the charges against him for violating his rights under the IAD.
“‘Forty-eight States, [including Michigan,] the Federal Government, and the District of
Columbia . . . have entered into the Interstate Agreement on Detainers . . . .’” People v Swafford,
483 Mich 1, 8; 762 NW2d 902 (2009), quoting Alabama v Bozeman, 533 US 146, 148; 121 S Ct
2079; 150 L Ed 2d 188 (2001). “The purpose of the IAD is to facilitate the prompt disposition of
outstanding charges against an inmate incarcerated in another jurisdiction.” People v Patton,
285 Mich App 229, 232; 775 NW2d 610 (2009).
In Michigan, the IAD was enacted into law by MCL 780.601. Article III (extradition
instituted by the prisoner—time limit 180 days) and Article IV (extradition instituted by the
prosecutor—time limit 120 days) of the IAD are relevant to whether the 120-day or the 180-day
period applies in this case:
(a) Whenever a person has entered upon a term of imprisonment in a penal
or correctional institution of a party state, and whenever during the continuance of
the term of imprisonment there is pending in any other party state any untried
indictment, information or complaint on the basis of which a detainer has been
lodged against the prisoner, he shall be brought to trial within one hundred eighty
days after he shall have caused to be delivered to the prosecuting officer and the
appropriate court of the prosecuting officers’ jurisdiction written notice of the
place of his imprisonment and his request for a final disposition to be made of the
indictment, information or complaint: Provided that for good cause shown in open
court, the prisoner or his counsel being present, the court having jurisdiction of
the matter may grant any necessary or reasonable continuance. The request of the
prisoner shall be accompanied by a certificate of the appropriate official having
custody of the prisoner, stating the term of commitment under which the prisoner
is being held, the time already served, the time remaining to be served on the
sentence, the amount of good time earned, the time of parole eligibility of the
prisoner, and any decisions of the state parole agency relating to the prisoner.
(b) The written notice and request for final disposition referred to in
paragraph (a) hereof shall be given or sent by the prisoner to the warden,
commissioner of corrections or other official having custody of him, who shall
promptly forward it together with the certificate to the appropriate prosecuting
official and court by registered or certified mail, return receipt requested.
(c) The warden, commissioner of corrections or other official having
custody of the prisoner shall promptly inform him of the source and contents of
any detainer lodged against him and shall also inform him of his right to make a
request for final disposition of the indictment, information or complaint on which
the detainer is based.
(d) Any request for final disposition made by a prisoner pursuant to
paragraph (a) hereof shall operate as a request for final disposition of all untried
indictments, informations or complaints on the basis of which detainers have been
lodged against the prisoner from the state to whose prosecuting official the
request for final disposition is specifically directed. The warden, commissioner of
corrections or other official having custody of the prisoner shall forthwith notify
all appropriate prosecuting officers and courts in the several jurisdictions within
the state to which the prisoner’s request for final disposition is being sent of the
proceeding being initiated by the prisoner. Any notification sent pursuant to this
paragraph shall be accompanied by copies of the prisoner’s written notice request,
and the certificate. If trial is not had on any indictment, information or complaint
contemplated hereby prior to the return of the prisoner to the original place of
imprisonment, such indictment, information or complaint shall not be of any
further force or effect, and the court shall enter an order dismissing the same with
(e) Any request for final disposition made by a prisoner pursuant to
paragraph (a) hereof shall also be deemed to be a waiver of extradition with
respect to any charge or proceeding contemplated thereby or included therein by
reason of paragraph (d) hereof, and a waiver of extradition to the receiving state
to serve any sentence there imposed upon him, after completion of his term of
imprisonment in the sending state. The request for final disposition shall also
constitute a consent by the prisoner to the production of his body in any court
where his presence may be required in order to effectuate the purposes of this
agreement and a further consent voluntarily to be returned to the original place of
imprisonment in accordance with the provisions of this agreement. Nothing in this
paragraph shall prevent the imposition of a concurrent sentence if otherwise
permitted by law.
(f) Escape from custody by the prisoner subsequent to his execution of the
request for final disposition referred to in paragraph (a) hereof shall void the
(a) The appropriate officer of the jurisdiction in which an untried
indictment, information or complaint is pending shall be entitled to have a
prisoner against whom he has lodged a detainer and who is serving a term of
imprisonment in any party state made available in accordance with Article V(a)
hereof upon presentation of a written request for temporary custody or availability
to the appropriate authorities of the state in which the prisoner is incarcerated:
Provided, That the court having jurisdiction of such indictment, information or
complaint shall have duly approved, recorded and transmitted the request: And
provided further, That there shall be a period of 30 days after receipt by the
appropriate authorities before the request be honored, within which period the
governor of the sending state may disapprove the request for temporary custody
or availability, either upon his own motion or upon motion of the prisoner.
(b) Upon receipt of the officer’s written request as provided in paragraph
(a) hereof, the appropriate authorities having the prisoner in custody shall furnish
the officer with a certificate stating the term of commitment under which the
prisoner is being held, the time already served, the time remaining to be served on
the sentence, the amount of good time earned, the time of parole eligibility of the
prisoner, and any decisions of the state parole agency relating to the prisoner. Said
authorities simultaneously shall furnish all other officers and appropriate courts in
the receiving state who have lodged detainers against the prisoner with similar
certificates and with notices informing them of the request for custody or
availability and of the reasons therefor.
(c) In respect of any proceeding made possible by this Article, trial shall
be commenced within one hundred twenty days of the arrival of the prisoner in
the receiving state, but for good cause shown in open court, the prisoner or his
counsel being present, the court having jurisdiction of the matter may grant any
necessary or reasonable continuance.
(d) Nothing contained in this Article shall be construed to deprive any
prisoner of any right which he may have to contest the legality of his delivery as
provided in paragraph (a) hereof, but such delivery may not be opposed or denied
on the ground that the executive authority of the sending state has not
affirmatively consented to or ordered such delivery.
(e) If trial is not had on any indictment, information or complaint
contemplated hereby prior to the prisoner’s being returned to the original place of
imprisonment pursuant to Article V(e) hereof, such indictment, information or
complaint shall not be of any further force or effect, and the court shall enter an
order dismissing the same with prejudice. [Emphasis added.]
The parties are at odds about which document triggered the IAD and, as a result, which
time line applies in the matter, 120 days or 180 days. The trial court did not make any findings
in this regard. Defendant argues that the prosecutor initiated the application of the IAD’s
procedures pursuant to Article IV of the IAD on August 10, 2006, when the prosecutor sent a
request for custody of defendant to the Illinois Department of Corrections (IDOC) through a
standard Form V of the IAD “Request for Temporary Custody,” in order to bring defendant back
to Michigan to face the untried charges. The form lists the charges against defendant and states
that the prosecutor “request[s] temporary custody of the prisoner pursuant to Article IV(a) of the
Interstate Agreement on Detainers (IAD).” The form was addressed to the prison warden and is
signed by the prosecuting officer as well as a 40th District Court judge. Defendant further
asserts that he made no valid request for extradition pursuant to the IAD. It appears from the
record that on September 8, 2006, defendant completed Form I of the IAD “Notice of Untried
Indictment, Information or Complaint and of Right to Request Disposition,” and Form II of the
IAD “Inmate’s Notice of Place of Imprisonment and Request for Disposition of Indictments,
Informations or Complaints.” Form I demands that he be brought to trial within 180 days
pursuant to Article IV of the IAD. Defendant alleges that the IDOC failed to mail his Form I to
the 40th District Court. The prosecutor’s brief on appeal indicates that the IDOC did not send
the defendant’s Form I request. For all these reasons, defendant asserts that the IAD mandates
that he be brought to trial within 120 days of his arrival in Michigan subject only to tolling for
delays requested by the defense pursuant to Article IV of the IAD.
The prosecutor responds that the 180-day period under Article III controls in this case
because defendant did not acknowledge the prosecutor’s Article IV request and instead filed his
own demand to be tried on the instant charges in Michigan under Article III. The prosecutor
contends that defendant acted contrary to his right to be tried within 120 days of his arrival in
Michigan under Article IV when he demanded to face the Michigan charges within 180 days of
his request under Article III. The prosecutor asks this Court to hold that by initiating his own
Article III request defendant waived his right to the shorter 120-day period. The prosecutor cites
no Michigan law for this proposition and instead cites cases from other states and federal
districts. The prosecutor also does not address the Form I mailing situation, wherein it appears
that defendant’s Form I request was never mailed by the IDOC or received by the district court.
The prosecutor ignores this Court’s holding in People v Gallego, 199 Mich App 566,
574; 502 NW2d 358 (1993), that “[o]nce a detainer is filed, it is then that the IAD is triggered
and compliance with the provisions of the agreement is required.” This Court recently cited
Gallego in its holding in Patton, supra. The Patton Court stated, “There is no exact definition of
the term ‘detainer,’ but ‘it has generally been recognized to mean written notification filed with
the institution in which a prisoner is serving a sentence advising that the prisoner is wanted to
face pending charges in the notifying state.’” Patton, supra at 232 n 1, quoting Gallego, supra at
There is no doubt that the prosecutor sent a request for custody of defendant to Illinois on
August 10, 2006, through a standard Form V of the IAD “Request for Temporary Custody,” in
order to bring defendant back to Michigan to face the untried charges before any action was
taken on defendant’s part. The form clearly lists the charges against defendant and states that the
prosecutor “request[s] temporary custody of the prisoner pursuant to Article IV(a) of the
Interstate Agreement on Detainers (IAD).” The form was addressed to Warden Deirdre Battaglia
and is signed by the prosecuting officer as well as a 40th District Court judge on August 10,
2006. Pursuant to both Patton and Gallego, Form V of the IAD meets the generally recognized
requirements of the term “detainer.” Patton, supra at 232 n 1, quoting Gallego, supra at 574.
As such, pursuant to Gallego once the prosecutor initiated Form V, “‘the IAD is triggered and
compliance with the provisions of the agreement is required.’” Patton, supra at 232, quoting
Gallego, supra at 574. Because Article IV of the IAD was triggered by the prosecutor’s
completion and submission of Form V, compliance with the triggered provision is required, and
therefore the appropriate time limit is 120 days pursuant to Article IV(c). Id.
Next, we must address whether the trial court abused its discretion is declining to dismiss
the charges against defendant because of the prosecutor’s failure to bring defendant to trial
within the IAD’s proper time line, which we have just determined is 120 days pursuant to Article
A prisoner who is transferred to Michigan under Article IV(c) of the IAD must be tried
within 120 days of his or her arrival in the state, MCL 780.601. “Failure to strictly comply with
the 120-day provision requires the trial court to dismiss any charges brought against the
defendant under the IAD.” Stone, supra at 243. “However . . . the 120-day time limit may be
tolled for any period that is the result of any necessary or reasonable continuance for good cause
shown in open court with the defendant or the defendant’s counsel present.” Id. “[S]uch a
continuance includes any period of delay caused by the defendant’s request or ordered to
accommodate the defendant.” Id. IAD Article IV(c) states specifically, “In respect of any
proceeding made possible by this Article, trial shall be commenced within one hundred twenty
days of the arrival of the prisoner in the receiving state, but for good cause shown in open court,
the prisoner or his counsel being present, the court having jurisdiction of the matter may grant
any necessary or reasonable continuance.” MCL 780.601. “[I]f a delay is caused by the
defendant’s request or in order to accommodate the defendant, the period of delay attributable to
defendant is not used in calculating the 120-day time period.” People v Cook, 95 Mich App 645,
653; 291 NW2d 152 (1980). Here, the parties disagree on the assignment of days throughout the
protracted proceedings. We have scoured the record and present the following summary of the
procedural history of the case.
The Illinois court sentenced defendant on July 20, 2006, and defendant remained
incarcerated in Illinois under the jurisdiction of the IDOC. On August 10, 2006 the Michigan
Attorney General’s office requested that defendant be transferred to Michigan custody pursuant
to the IAD, MCL 780.601. Defendant was extradited to Michigan on October 10, 2006. After
defendant requested adjournment of the preliminary examination three times, the district court
bound defendant over for trial on December 8, 2006. Trial was scheduled to start January 17,
2007, then adjourned to February 15, 2007. In the mean time, the prosecutor filed a notice
seeking to admit evidence of defendant’s online chats with “Coty” and “Jason” pursuant to MRE
404(b). Defendant moved in the trial court to suppress evidence of his online chats and the trial
court did so in an opinion and order issued February 6, 2007. The prosecutor applied for leave to
appeal and moved to stay circuit court proceedings pending an interlocutory appeal. This Court
granted the prosecutor’s application and motion for a stay in an order entered February 14, 2007.
This Court reversed the trial court’s order excluding other acts evidence and remanded the matter
to the circuit court for trial on October 11, 2007. People v Waclawski, unpublished opinion per
curiam of the Court of Appeals, issued October 11, 2007 (Docket No. 276094).
On remand, at a hearing on November 2, 2007, the trial court revisited the other acts
evidence issue and reversed itself, holding that it would allow the evidence under MRE 404(b)
“insofar as it is logically relevant.” Immediately following remand, defendant moved in the trial
court to dismiss all charges against him on the basis of the denial of his rights under the
protections of the IAD. The trial court considered defendant’s motion at a hearing held
November 13, 2007. Defendant argued that under the IAD, the state was required to bring
defendant to trial within either 120 or 180 days and that both of those periods had passed even if
one deducted delays and adjournments attributable to defendant are deducted. Defendant
specifically argued that the delay in bringing him to trial because of the interlocutory appeal in
Docket Number 276094—a total of 239 days from February 14 to October 11, 2007—was
attributable to the prosecutor. Defendant pointed out that the prosecutor knew of the time
restraints placed by the IAD, yet still pursued the appeal and a stay of proceedings pending
appeal even though the challenged other acts evidence was not necessary for trial. It was
defendant’s position that because well over 180 days had passed, the circuit court no longer had
jurisdiction over the charges and defendant was entitled to dismissal with prejudice. The
prosecutor argued that dismissal was appropriate only where the prosecution committed
egregious mistakes and that delays over the time limits were allowed where reasonable and for
good cause. The prosecutor argued specifically that the Court of Appeals obtained jurisdiction
over the matter when it granted the application and effectively found good cause to delay the trial
when it granted a stay of circuit court proceedings pending appeal. Furthermore, the prosecutor
contended that because any effective continuance was granted for good cause, the time limits set
by the IAD were tolled and defendant was not denied his right to a speedy trial under the statute.
The trial court denied defendant’s motion, explaining as follows:
This court cannot find any bad faith on behalf of the People and your
motion is denied . . . .
I believe that the People acted in good faith. The Court of Appeals in its
wisdom took as long as they took for whatever reason. This court was always
prepared to proceed to trial. And I don’t believe that a liberal construction would
mandate that the People’s ability to appeal what obviously was an error on this
court’s part in its interpretation of the law should be held against the state of
Michigan and its People.
The circuit court signed a handwritten order denying defendant’s motion on November
13, 2007. That order set a trial date of December 13, 2007. Defendant then moved to stay the
trial pending an interlocutory appeal to this Court. The trial court considered that motion at a
hearing held November 16, 2007. In a handwritten order signed November 16, 2007, the trial
court denied defendant’s motion to stay the trial but adjourned the trial date to January 15, 2008.
The order states that the delay caused by this adjournment should be attributed to defendant.
Defendant indeed applied to this Court for leave to appeal the trial court’s November 13, 2007,
order denying his motion to dismiss the charges against him on the basis of the denial of his right
to a speedy trial under the IAD. Defendant moved for immediate consideration and to stay
circuit court proceedings because his trial was scheduled to begin on January 15, 2008. This
Court denied defendant’s application for leave to appeal “for failure to persuade the Court of the
need for immediate appellate review” in an order dated January 11, 2008. People v Waclawski,
unpublished order of the Court of Appeals, entered January 11, 2008 (Docket No. 282315).
While his application was pending in this Court, on January 7, 2008, defendant moved to
substitute counsel and the trial court granted that request and appointed new counsel to represent
him. The trial court adjourned the trial until an undetermined date and used the former January
15, 2008, trial date to conduct a pretrial conference. At the January 15, 2008, pretrial
conference, defendant’s attorney requested an additional week to review the trial materials. The
pretrial conference was adjourned until January 24, 2008. Defendant’s counsel informed the trial
court on January 24, 2008, that he had not completed his review of the record and requested an
extension. As a result of the defense request, the trial court adjourned the status conference until
February 19, 2008. On February 19, 2008, the trial court set defendant’s trial for March 25,
2008. But on March 17, 2008, defendant requested another adjournment to prepare for trial. The
trial court initially denied the request, but reconsidered after the prosecutor expressed concern
that defense counsel would not be ready for trial. The trial court ultimately agreed and stayed
trial until May 6, 2008. Defendant’s jury trial finally commenced on May 6, 2008.
In the interest of clarity, we have assigned responsibility for all the days of the procedural
history of the case to either the prosecutor or defendant as charged at each relevant event in the
record leaving a space for “days in question.” In doing so, we followed the rule articulated in
Cook, supra at 652-653, that delays attributable to the defendant are charged against the
defendant as well as the dictates of MCR 1.108 in setting forth the following time schedule.
Defendant arrives in
Time between defendant’s
arrival in MI and first
hearing on 10/24/2006.
On 10/24/2006 defendant
requests that his preliminary
examination be adjourned to
On 11/17/2006 defendant
requests adjournment of his
preliminary exam to
Defendant and his attorney
failed to attend the scheduled
hearing on 12/1/2006.
Defense attorney had filed a
motion in advance of that
day and the trial court
granted it stating explicitly
that the delay would be
charged against defendant.
Defendant was bound over
for trial on 12/8/2006 and his
trial date was scheduled for
1/17/2007. Defendant was
arraigned in circuit court on
On 1/11/2007 defendant
requests adjournment of trial
date to 2/15/2007 because
defense counsel stated that
he was not ready for trial.
COA grants prosecutor’s
motion for leave to appeal
and stays trial.
COA remands case to trial
court and stay is lifted in the
On 11/2/2007 defendant
requests that the trial court
not set a trial date until the
next hearing on 11/13/2007
in order to wait for a decision
on defendant’s motion
regarding the IAD and
defendant himself states that
“this case is nowhere near
ready to be tried.”
On 11/13/2007 trial date is
set for 12/13/2007.
On 11/16/2007 defendant
requests a stay to file an
application for leave to
appeal to the COA which the
trial court denied, but instead
granted an adjournment of
the 12/13/2007 trial date to
defendant’s request for new
counsel was granted on
1/7/2008 and the 1/15/2008
trial date was converted into
a pretrial conference date.
Trial did not commence as
scheduled on 1/15/2008
because defendant’s new
counsel requested additional
time to review the file to
determine what discovery
was needed before a new
trial date could be set.
On 2/19/2008 trial date is set
for March 25, 2008.
On 3/17/2008 defense
adjournment of trial until
5/6/2008 in order to
adequately prepare for trial.
On 1/24/2008 defendant
requested additional time to
review the remainder of the
discovery materials and
coordinate with previous
counsel. The trial court
granted the request and set a
final pretrial date for
Jury trial commences.
A total of 574 days passed from the time defendant was extradited to Michigan on
October 10, 2006, to his trial date of May 6, 2008. After reviewing the record, it is clear that 127
days passed from October 10, 2006 to February 14, 2007, when this Court issued its order
granting leave and staying circuit court proceedings in Docket Number 276094, 239 days passed
from this Court’s February 14, 2007, order to the date of its October 11, 2007, opinion in Docket
Number 276094, and 208 days from October 11, 2007, to the trial date on May 6, 2008.
Defendant argues that under Article IV(a) and (c) of the IAD, the prosecutor and the
circuit court were required to bring him to trial within 120 days of his being extradited to
Michigan on October 10, 2006. Our review of the record reveals that because the prosecutor was
responsible for only 100 days (20 less than 120), the sole relevant issue is whether the 239-day
period when trial was stayed by this Court is somehow attributed to the prosecutor and counted
toward the 120-day deadline set by Article IV. In the trial court, the prosecutor contended that
because any effective continuance was granted for good cause, the time limits set by the IAD
were tolled and those days did not count against the prosecutor. The trial court agreed and
denied defendant’s motion on November 13, 2007.
The goal of judicial interpretation of a statute is to ascertain and give effect to the intent
of the Legislature. People v Pasha, 466 Mich 378, 382; 645 NW2d 275 (2002). “‘The first step
in that determination is to review the language of the statute itself.’” Id. (citation omitted).
Thus, if the language is clear, no further construction is necessary or allowed to expand what the
Legislature clearly intended to cover. People v Borchard-Ruhland, 460 Mich 278, 284; 597
NW2d 1 (1999).
Again, Article IV(c) of the IAD states specifically, “In respect of any proceeding made
possible by this Article, trial shall be commenced within one hundred twenty days of the arrival
of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his
counsel being present, the court having jurisdiction of the matter may grant any necessary or
reasonable continuance.” MCL 780.601. While the prosecution sought leave to appeal, it did so
to correct the circuit court’s erroneous decision on defendant’s motion to exclude evidence, and
the issue on appeal was resolved in the prosecutor’s favor. This Court granted the application
and stay of proceedings on the basis of its determination that the prosecutor’s appeal had
potential merit and clearly was one that needed to be resolved before the case went to trial. As
such, the stay granted by this Court’s February 14, 2007, order was a continuance that was both
“necessary” and “reasonable” and was granted “for good cause shown” by a “court having
jurisdiction of the matter” as required by the plain language of Article IV(c). Also, see, People v
Meyers (On Remand), 124 Mich App 148, 156; 335 NW2d 189 (1983) (Pretrial delay caused by
the need to obtain a transcript necessary to resolve a defendant’s pretrial motion was found
“necessary” and “reasonable” and tolled the running of the 120-day period under the IAD.)4
Thus, the 239-day delay when trial was stayed by this Court is not attributed to the prosecutor
and is likewise not counted toward the 120-day deadline set by Article IV.
This Court in Meyers, supra at 155-156, held as follows:
On April 10, 1979, both the defendants were arraigned in circuit court.
Defendant Charles Meyers objected to the filed information, arguing that he had
only been bound over on a single count of armed robbery. After the prosecutor
informed the court that the return indicated that defendant Charles Meyers had
been bound over on both charges, counsel for defendant Charles Meyers stated:
“Well, we’ll probably have to wait for the filing of the transcript.” The following
day the prosecutor contacted the court reporter in attendance at the preliminary
examination and requested preparation of the preliminary examination transcript.
We agree with the circuit court’s finding that the ensuing delay was
necessary and reasonable and find that, under this peculiar set of facts, the act’s
120-day period was properly tolled during the time it took to obtain the transcript,
i.e., from April 10, 1979, to June 11, 1979. Our conclusion is based upon a
consideration of the following factors: (1) counsel for defendant Charles Meyers
objected to the filed information, (2) the case could not proceed to trial while the
parties were uncertain regarding the nature of the outstanding charges, (3) the
defense counsel conceded that the examination transcript itself was necessary to
clarify the problem, and (4) the prosecutor acted immediately to resolve the
defendant’s objection. In addition, although only defendant Charles Meyers
objected to the information at the arraignment, we hold that the 120-day period
was tolled with respect to defendant Daniel Meyers as well because he was
present at the arraignment when the objection was made and made no objection to
the obvious delay that was to ensue.
We find further support for our holding on this issue in Article IX of the IAD which
states that, “[t]his agreement shall be liberally construed so as to effectuate its purposes.” Again,
the prosecution sought leave to appeal the circuit court’s decision on the evidentiary issue in an
attempt to right the circuit court’s incorrect decision on defendant’s motion to exclude the other
acts evidence. This Court granted the application and stay because it believed that the
prosecutor’s appeal had merit and plainly needed to be resolved before the case proceeded to
trial. Should the trial be lost after the prosecutor was denied the right to submit legally
admissible evidence, jeopardy would have attached precluding an appeal on the evidentiary
point. People v Henry, 248 Mich App 313, 318; 639 NW2d 285 (2001) (both the United States
Constitution and the Michigan Constitution prohibit placing a defendant twice in jeopardy for a
single offense). While defendant argues that the prosecutor could go forward without the
improperly excluded evidence, the people have a right to a “criminal justice system in which the
discovery of the truth [is] facilitated.” People v Yost, 483 Mich 856, 859 (2009) (MARKMAN, J.,
concurring). The discovery of the truth relies on a process whereby all legally admissible
evidence is admitted allowing the fact-finder a true picture of the events. Defendant has not
provided any reason for us to ignore these pillars of the criminal law and instead interpret the
IAD, a statutory time relief rule, in such a manner so as to allow a jury trial to proceed riddled
with error to defendant’s strategic advantage. It can even be said that defendant in fact created
the circumstance that necessitated the delay when he sought to exclude the relevant other acts
evidence. We cannot allow a defendant to trigger a situation whereby he or she creates an
opportunity for the defendant to deny the people their right to have the defendant sentenced for
his or her criminal deeds in contravention of the aims of the criminal law. Ultimately, this Court
resolved the issue on interlocutory appeal in favor of the prosecutor. Under the specific
circumstances presented in the instant case, the language of the statute is plain and it controls,
meaning that no further construction is necessary. Borchard-Ruhland, supra at 284.
We also take this opportunity to point out that the requirement in Article IV(c) that good
cause be shown in “open court [with] the prisoner or his counsel being present” is simply
inapplicable to this Court. This Court does not conduct oral argument hearings in application
matters. The requirement that a continuance be granted only in open court with the presence of
defendant or counsel is obviously meant to limit adjournments granted ex parte to the prosecutor.
As a general rule this Court will not consider ex parte applications and motions. See Court of
Appeals IOP 7.209(I).5 The docket entries in Docket Number 276094 show that defendant was
IOP 7.209(I) states as follows, in pertinent part:
Ex Parte Stay. Court policy discourages the use of the ex parte stay rule.
The Court has almost universally required that all parties be served with a motion
for stay in the Court of Appeals before it is submitted on the motion docket. If the
motion for stay is accompanied by a motion for immediate consideration under
MCR 7.211(C)(6), and if both motions are personally served on all parties, the
motions will be submitted to a panel of judges as quickly as can be arranged by
the district office in which the motions are filed. In matters of extreme urgency, it
is possible to accomplish service, filing, submission, and a ruling in a matter of
hours. Thus, there is virtually no justification for invoking the provisions of the
given the opportunity to respond to the prosecutor’s application and motion and filed an answer
to the application before it was submitted to the panel, which effectuates the same purpose.
Furthermore, in this particular case, defendant, an attorney and former prosecutor, stated on the
record at a hearing before the trial court on January 7, 2008, that he was aware that he did not
have a right to appear at a proceeding before the Court of Appeals. Given Article IX’s
instruction that the IAD’s provisions should be liberally construed to effectuate its purpose, this
Court’s February 14, 2007, order is not deemed outside the scope of IAD Article IV(a) and (c)
merely because it was entered without the physical presence of defendant or his counsel.
Because of the dearth of law on this issue, the prosecutor raises alternative grounds to
affirm the trial court’s conclusion that the 239-day delay caused by the prosecutor’s interlocutory
appeal to this Court should not be assigned to the prosecutor and not count toward the running of
the 120-day deadline set by the IAD. The prosecutor urges this Court to apply the body of law
applicable to the speedy trial rules because both the IAD and the speedy trial rules effectuate the
same purpose, citing United States v Odom, 674 F2d 228, 231-232 (CA 4, 1982). The prosecutor
also cites United States v Cephas, 937 F2d 816, 819 (CA 2, 1991), wherein it is stated:
Given the similarities in the case-law development of excludable time
under the two acts, and in the interests of consistent judicial administration, we
now expressly hold that the “for good cause shown” standard of the detainer act
should encompass the same conditions and circumstances as the rules for
excludable time under the speedy trial act. [Id.]
Indeed, this Court has held that the time the prosecution takes to successfully pursue an
interlocutory appeal is “taken out of the calculation” for purposes of an alleged speedy trial
violation. People v Missouri, 100 Mich App 310, 321; 299 NW2d 346 (1980). (See Section III
of this opinion for a full discussion of the rules relating to speedy trial requirements). We do
conclude that the bodies of law are analogous and find the speedy trial cases instructive.
For all these reasons, we conclude that the circuit court did not clearly err by holding that
the 239-day delay caused by this Court’s February 14, 2007, order staying proceedings would
not count toward the running of the 120-day deadline set by the IAD.
Defendant next argues that he was deprived of his Sixth Amendment right to a speedy
trial when 19 months lapsed between his arrest and the commencement of his trial as a result of
delays largely attributable to the prosecution. The determination whether a defendant was denied
a speedy trial is a mixed question of fact and law. People v Walker, 276 Mich App 528, 540;
741 NW2d 843 (2007), vacated in part on other grounds 480 Mich 1059 (2008). The factual
findings are reviewed for clear error, while the constitutional issue is a question of law subject to
review de novo. People v Williams, 475 Mich 245, 250; 716 NW2d 208 (2006). In addition, this
Court must determine whether any error was harmless beyond a reasonable doubt. Walker,
ex parte rule.
supra at 540. Violation of the constitutional right to a speedy trial requires dismissal of the
charge with prejudice. MCR 6.004(A); Walker, supra at 541.
Both the United States Constitution and the Michigan Constitution guarantee a criminal
defendant the right to a speedy trial. US Const, Am VI; Const 1963, art 1, § 20; see also MCL
768.1; MCR 6.004(A). In determining whether a defendant has been denied this right, this Court
applies a four-part balancing test. Williams, supra at 261-262. The four factors include: “(1) the
length of delay, (2) the reason for delay, (3) the defendant’s assertion of the right, and (4) the
prejudice to the defendant.” Id. The first and fourth factors are critical to our analysis. If the
total delay, which runs from the date of the defendant’s arrest until the time that trial
commences, id. at 261, is under 18 months, then the burden is on the defendant to show that he
or she suffered prejudice. People v Cain, 238 Mich App 95, 112; 605 NW2d 28 (1999).
However, if the delay is over 18 months, prejudice is presumed and the burden is on the
prosecution to rebut the presumption. Id.
Applying these principles to the present matter, we cannot conclude, despite the length of
delay in this matter, that the trial court erred by finding that defendant’s right to a speedy trial
was not violated.
A. LENGTH OF DELAY
Because the length of the delay between the issuance of defendant’s arrest warrant on
April 11, 2006, and the start of his trial on May 9, 2008, was approximately 24 months, the delay
was presumptively prejudicial and the burden is on the prosecution to rebut the presumption.
Cain, supra at 112. Although the length of delay in this case is considerable, there is no set
number of days between a defendant’s arrest and trial that is determinative of a speedy trial
claim. Williams, supra at 261; also see People v Cutler, 86 Mich App 118, 126-127; 272 NW2d
206 (1978) (37-month delay, but no violation); People v Smith, 57 Mich App 556, 563-567; 226
NW2d 673 (1975) (19-year delay, but no violation). In any case, this factor weighs in
defendant’s favor and, because the delay in this case is presumptively prejudicial, it is necessary
for us to examine the remaining factors. Williams, supra at 262.
B. REASONS FOR DELAY
In assessing the reasons for delay, this Court must examine whether each period of delay
is attributable to the defendant or the prosecution. Walker, supra at 541-542. “Unexplained
delays are charged against the prosecution. Scheduling delays and docket congestion are also
charged against the prosecution.” Id. at 542. However, “Although delays inherent in the court
system, e.g., docket congestion, are technically attributable to the prosecution, they are given a
neutral tint and are assigned only minimal weight in determining whether a defendant was denied
a speedy trial.” Williams, supra at 263 (citations and quotation marks omitted).
In the chart above in part II(B) of this opinion we clearly delineated whether certain
delays were the fault of the prosecutor or defendant. The only amount of time we must include
here that is not in the chart is the time between defendant’s arrest warrant being issued in
Michigan on April 11, 2006, and his arrival in Michigan on October 10, 2006. Defendant could
not be arrested in Michigan because he was already detained in Illinois on other criminal
charges. Defendant pleaded guilty to the Illinois charges on July 27, 2006. On August 10, 2006,
the prosecutor then initiated the IAD process in order to have defendant extradited to Michigan
to face the charges pending against him here. Clearly defendant needed to be brought back to
Michigan to face the charges in Michigan but that could not happen until the Illinois matter was
resolved and the administrative process of the IAD instituted. We therefore assign the days
between April 11, 2006, and July 27, 2006, to defendant because defendant was unavailable to
be tried in Michigan at that time as a result of his own criminal behavior, arrest, and detention.
After defendant pleaded guilty to the Illinois charges he became available for transfer to
Michigan and thus, we assign the days beginning on July 28, 2006, until October 10, 2006, to the
prosecutor. On the whole, these delays simply cancel each other out.
The remainder of the reasons for the delays are easily discernable from the record and we
have outlined them in the chart above in part II(B) of this opinion. The prosecutor was
responsible for 100 days of delay from the time defendant arrived in Michigan until his trial,
defendant was responsible for 235 days of delay, and the remaining 239 days are a result of the
delay associated with the interlocutory appeal brought to this Court by the prosecutor. As a
result, defendant’s main contention is that the delay caused by the prosecutor’s interlocutory
appeal that was pending before this Court for 239 days should be weighed against the
government. However, this Court has held that the time the prosecution takes to successfully
pursue an interlocutory appeal is “taken out of the calculation.” Missouri, supra at 321. Thus,
we do not assign this delay any weight in favor of either the prosecutor or defendant. Because
the 239 day delay is not attributable to either party, this factor weighs against defendant because
he was responsible for more than twice the number of days than the prosecutor.
C. ASSERTION OF RIGHT
There is some consternation between the parties about when defendant asserted his right
to a speedy trial. Defendant states that he submitted his demand for a speedy trial to the 40th
District Court on July 20, 2006, from the Illinois jail. However the prosecutor points out that the
only demand for a speedy trial that is contained in the court record is dated as having been
received by the Macomb Circuit Court on December 27, 2007. Because defendant’s claim that
he submitted his demand for a speedy trial on July 20, 2006, is not supported by the record, we
must credit only the request by defendant that is supported by the record, and that is the one
dated December 27, 2007. The trial court did not even address the matter until a hearing on
April 28, 2008, only a few weeks before trial. Because defendant’s trial began little more than
five months after he filed his December 27, 2007, speedy trial demand, this factor weighs only
the slightest in defendant’s favor.
With respect to prejudice, in his brief on appeal, defendant does not offer much of an
explanation regarding how he was prejudiced by the delay. The prosecutor states that defendant
was not prejudiced at all by the delay between the date of the arrest warrant and his trial date. In
assessing this factor, this Court recognizes that “there are two types of prejudice[:] prejudice to
the person and prejudice to the defense.” People v Wickham, 200 Mich App 106, 112; 503
NW2d 701 (1993). “Prejudice to the defense is the more serious concern, because the inability
of a defendant adequately to prepare his case skews the fairness of the entire system.” Williams,
supra at 264 (quotation marks and citations omitted). Our Supreme Court has repeatedly
recognized in the context of lengthy pretrial incarcerations that the most significant concern is
whether the defendant’s ability to defend himself or herself has been prejudiced. Id. Defendant
makes no claim that because of the delay he was somehow unable to defend himself. To the
contrary, the record shows that throughout the time defendant was awaiting trial he was
represented by three different attorneys at his request, and that his attorneys continued to request
more time in order to prepare for trial. Defendant himself once admitted to the trial court that the
case was nowhere near ready to be tried. The prosecutor points out that there is no indication
that a potential defense witness was lost or that other exculpatory evidence was misplaced during
the delay. After reviewing the record, we conclude that defendant was not prejudiced by the
delay. Accordingly, this factor weighs heavily against defendant.
Although a 24-month delay is presumptively prejudicial and defendant did assert his right
to a speedy trial, because the reasons for the delay weighed against defendant and defendant’s
ability to prepare a defense was not prejudiced, we conclude that the trial court properly held that
defendant’s right to a speedy trial was not violated.
Defendant next argues that he is entitled to a new trial on the basis that the trial court
abused its discretion by allowing the jury to be exposed to unfairly prejudicial other acts
evidence and he notes that even a cursory review of the record reveals that one of the primary
reasons defendant stands convicted is the evidence admitted over defense objection that
defendant sent sexually explicit electronic messages over the Internet to individuals he believed
were minors. The admissibility of other acts evidence is within the trial court’s discretion and
will be reversed on appeal only when there has been a clear abuse of discretion. People v
Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998); People v McGhee, 268 Mich App 600,
609; 709 NW2d 595 (2005). A court abuses its discretion when it chooses an outcome that is
outside the range of reasonable and principled outcomes. People v Orr, 275 Mich App 587, 588589; 739 NW2d 385 (2007). The determination whether the probative value of evidence is
substantially outweighed by its prejudicial effect is best left to a contemporaneous assessment of
the presentation, credibility, and effect of the testimony. People v Magyar, 250 Mich App 408,
416; 648 NW2d 215 (2002).
Defendant specifically contends that he is entitled to a new trial because the trial court
abused its discretion by allowing the jury to be exposed to unfairly prejudicial other acts
evidence of his online chats in Ohio and Illinois under MRE 404(b). He asserts that review of
the chats reveals that the conduct involved was entirely dissimilar from the charged offenses.
The prosecutor responds that the trial court acted properly within its discretion by admitting the
other acts evidence because it was probative with regard to defendant’s intent to commit firstdegree criminal sexual conduct as well as his common scheme of targeting minor male victims.
Use of other acts as evidence of character is excluded, except as allowed by MRE 404(b),
to avoid the danger of a conviction based on a defendant’s history of misconduct. People v
Starr, 457 Mich 490, 495; 577 NW2d 673 (1998); People v Johnigan, 265 Mich App 463, 465;
696 NW2d 724 (2005). A prosecutor may not introduce evidence of other crimes, wrongs, or
acts in order to prove a defendant’s character or propensity for criminal behavior. MRE 404(b);
People v VanderVliet, 444 Mich 52, 74; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994).
However, the evidence may be “admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or
absence of mistake or accident when the same is material, whether such other crimes, wrongs, or
acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.” MRE
Our Supreme Court in People v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004), stated
In People v VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993), this
Court articulated the factors that must be present for other acts evidence to be
admissible. First, the prosecutor must offer the “prior bad acts” evidence under
something other than a character or propensity theory. Second, “the evidence
must be relevant under MRE 402, as enforced through MRE 104(b)[.]” Id. Third,
the probative value of the evidence must not be substantially outweighed by
unfair prejudice under MRE 403. Finally, the trial court, upon request, may
provide a limiting instruction under MRE 105.
“MRE 404(b) ‘permits the admission of evidence on any ground that does not risk
impermissible inferences of character to conduct.’” People v Watson, 245 Mich App 572, 576;
629 NW2d 411 (2001), quoting Starr, supra at 496. After reviewing the record, we conclude
that the challenged evidence clearly demonstrates both intent and identity, as well as common
scheme, plan, or system. Evidence that defendant questioned two persons that he believed to be
male children under the age of 15 in Illinois and Ohio about their penis size, solicited them for
the purpose of performing fellatio, arrived in Illinois with a digital camera, and admitted to the
Illinois police that he intended to use the camera to take sexually explicit pictures of “Coty”
shows that defendant intended to perform fellatio on K and measure the penises of M and P. The
evidence also demonstrates defendant’s intent to photograph these incidents and defendant’s
identity as the person who in fact performed the acts depicted in the photographs. Regarding
common scheme, plan, or system, clearly defendant selected male children under the age of 14 as
his target victims, he had specific desires to inquire regarding their penis size, measure their
penis size with a ruler, perform fellatio on them, and take sexually explicit photographs of the
Furthermore, defendant pleaded not guilty to all charges brought against him in
Michigan. All elements of a criminal offense are “in issue” when a defendant pleads not guilty.
Crawford, supra at 389. Relevant evidence must be related to a fact that is of consequence to the
action. People v Sabin (After Remand), 463 Mich 43, 57; 614 NW2d 888 (2000). Because the
evidence of defendant’s possession of a digital camera in Illinois and his online chats with
“Jason” and “Coty” regarding fellatio and penis size make it more likely that defendant
performed fellatio on K, measured the penises of M and P, and photographed the incidents it is
plainly relevant. MRE 401; MRE 402.
The probative value of the evidence is not outweighed by the danger of unfair prejudice
under MRE 403. Unfair prejudice occurs “when there is a tendency that the evidence will be
given undue or preemptive weight by the jury, or when it would be inequitable to allow use of
the evidence.” People v Taylor, 252 Mich App 519, 521-522; 652 NW2d 526 (2002). On
defendant’s computer, the police found three photographs of someone performing fellatio on K,
a 14-year-old boy, photographs of P, a 12-year-old boy, who was photographed with his penis
being measured, and photographs of M, a 10-year-old boy, who was photographed with his penis
being measured. As discussed above, the evidence of the online chats in Ohio and Illinois supply
proof that defendant intended to perform fellatio on K who was the same age as “Coty” and two
years older than “Jason.” The evidence of the chats and the digital camera also supply proof that
defendant intended to measure the penises of M, who was two years younger than “Jason” and
four years younger than “Coty,” and P, who was the same age as “Jason” and two years younger
than “Coty.” Further, this evidence provides proof that defendant was the person portrayed in
the photographs and that he intended to photograph all these incidents. In sum, the evidence
fulfilled purposes of supplying proof of intent, identity, and common scheme, plan, or system
and it was relevant and more probative than prejudicial.
To the extent that the prosecution also offered evidence of the Ohio and Illinois chats to
prove defendant’s identity as the perpetrator, in People v Ho, 231 Mich App 178, 186; 585
NW2d 357 (1998), this Court stated:
Although the VanderVliet Court adopted a new test for admission of
evidence under MRE 404(b), the four-part test of People v Golochowicz, 413
Mich 298, 309; 319 NW2d 518 (1982), remains valid to show logical relevance
where similar-acts evidence is offered to show identification through modus
operandi. People v McMillan, 213 Mich App 134, 138; 539 NW2d 553 (1995).
The Golochowicz test requires that (1) there is substantial evidence that the
defendant committed the similar act (2) there is some special quality of the act
that tends to prove the defendant’s identity (3) the evidence is material to the
defendant’s guilt, and (4) the probative value of the evidence sought to be
introduced is not substantially outweighed by the danger of unfair prejudice.
Golochowicz, supra at 307-309.
Here, there is substantial evidence that defendant committed the other acts in Illinois and
Ohio. He was convicted of indecent solicitation of a child in Illinois, and he used the same
screen name to communicate with “Jason” in Ohio. The online chats in Ohio and Illinois,
coupled with the discovery of defendant’s digital camera in Illinois and his admission to the
Illinois police that he intended to use the camera to take sexually explicit pictures of “Coty,”
show a special quality or circumstance because they show defendant’s fixation on the penis size
of prepubescent boys and his preoccupation with performing fellatio on them, as well as his
desire to photograph these acts.
Defendant argues that as a result of the admission of the other acts evidence the jury
convicted him because he was a “bad man.” But, the trial court provided a comprehensive
limiting instruction to the jury that the prior acts evidence could only be considered for very
limited purposes. “It is well established that jurors are presumed to follow their instructions.”
People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). After reviewing the record, this
Court concludes that the trial court’s decision to admit the evidence under MRE 404(b) was
within the range of principled outcomes and not an abuse of discretion.6
Next, defendant argues that his conviction for first-degree criminal sexual conduct must
be vacated because there was a violation of due process guarantees when the trial court
instructed the jury that mere touching could be sufficient to support a guilty verdict and when the
jury was not instructed on which act was proven beyond a reasonable doubt. He further asserts
that defense counsel was ineffective by failing to request the unanimity instruction. The
prosecutor responds that the jury instructions make clear that the prosecutor must demonstrate
entry into defendant’s mouth by the victim’s penis and asserts that no error occurred. Issues of
law arising from jury instructions are reviewed de novo on appeal, but a trial court’s
determination whether an instruction was applicable to the facts of the case is reviewed for an
abuse of discretion. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006). Jury
instructions are to be read as a whole rather than extracted piecemeal to establish error. People v
Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001). The reviewing court must balance the
general tenor of the instructions in their entirety against the potentially misleading effect of a
single isolated sentence. People v Freedland, 178 Mich App 761, 766; 444 NW2d 250 (1989).
Over defense counsel’s objection, the trial court read the following jury instruction on the
elements of first-degree criminal sexual conduct:
The Defendant is charged with the crime of first-degree criminal sexual
conduct. To prove this charge, the Prosecutor must prove each of the following
elements beyond a reasonable doubt. First, that the Defendant engaged in a
sexual act that involved entry into Defendant’s mouth by [K’s] penis. Any entry,
no matter how slight, is enough. It does not matter whether the sexual act was
completed or whether semen was ejaculated and/or the Prosecutor must prove
beyond a reasonable doubt the touching of [K’s] genital organs with the
Defendant’s mouth or tongue. Second, that the alleged sexual act occurred under
circumstances that also involved child sexually abusive activity, production.
A trial judge must instruct the jury as to the applicable law, and fully and fairly present
the case to the jury in an understandable manner. McGhee, supra at 606; People v Moore, 189
Mich App 315, 319; 472 NW2d 1 (1991). To prove CSC I under MCL 750.520b(1)(a), the
We end our analysis of this issue here with the discussion of the MRE 404(b) evidence and
decline to address whether the other acts evidence is also admissible under MCL 768.27a as
evidence of an offense listed under the Sex Offenders Registration Act (SORA), MCL 28.721 et
seq. The trial court decided the issue solely on the basis of the MRE 404(b) analysis and did not
make any determinations regarding the effect of MCL 768.27a. Thus, arguments pertaining to
the application of MCL 768.27a are not preserved for this Court’s review. Furthermore, it is not
necessary to the resolution of the issue on appeal by virtue of our MRE 404(b) analysis. We
make no statement of whether the other acts evidence would have been alternatively or
additionally admissible under the provisions of MCL 768.27a.
prosecution was required to show that defendant engaged in sexual penetration with another
person under the age of thirteen. “Sexual penetration” means “sexual intercourse, cunnilingus,
fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or
of any object into the genital or anal openings of another person’s body, but emission of semen is
not required.” MCL 750.520a(r). “Fellatio” is not defined in the statute, but this Court has
interpreted the act of fellatio to require the entry of a penis into another person’s mouth. People
v Reid, 233 Mich App 457, 480; 592 NW2d 767 (1999). The Reid Court interpreted fellatio not
to consist of merely any oral contact with the male genitals. Id. (“‘fellatio’ does not consist
merely of ‘any oral contact with the male genitals,’ but rather requires entry of a penis into
another person’s mouth”) (emphasis and citation omitted).
The prosecutor urges that Reid must be overruled because its interpretation of fellatio is
inconsistent with the plain language of the statute. We agree that the Reid Court’s interpretation
of fellatio is fundamentally flawed and contrary to the plain language of the statute. Again, if the
plain language of the statute is clear and unambiguous, no further construction is necessary, and
this Court must enforce the statute as written. Borchard-Ruhland, supra at 284. Because
“fellatio” is not defined in the statute, this Court may look to a dictionary definition. Allison v
AEW Capital Mgt, LLP, 481 Mich 419, 427; 751 NW2d 8 (2008). Random House Webster’s
College Dictionary (2nd ed, 1997), p 478, defines “fellatio” as “oral stimulation of the penis.”
In this case, the prosecutor has provided three photographs that were shown to the jury
during trial. We have viewed the photographs and one of them shows an image of what is
alleged to be defendant’s face perpendicular to the victim’s penis with his tongue out of his
mouth in contact with the victim’s penis. We conclude on the basis of the image in the
photograph that defendant was indeed orally stimulating the victim’s penis with his tongue.
Therefore, under the dictionary definition, what is depicted in the photograph would constitute
fellatio. However, what is depicted in the photograph would not constitute fellatio as interpreted
by this Court in Reid, supra at 480. We conclude that the definition of “fellatio” as adopted by
Reid is incorrect because it ignores the plain meaning of the term and therefore the language of
the statute. That being said, this Court is bound by its own decision in Reid, by virtue of MCR
However, this issue may be decided more simply when considering that two other
photographs depicting fellatio were shown to the jury at trial. We have reviewed the
photographs. Both of the other photographs show images depicting defendant with his mouth
open and the victim’s penis inside defendant’s mouth. The pictures clearly depict fellatio as
interpreted by Reid. Reid, supra at 480. Even if somewhat imperfect, instructions do not create
error if they fairly presented the issues to be tried and sufficiently protected the defendant’s
rights. People v Clark, 274 Mich App 248, 255-256; 732 NW2d 605 (2007). The instructions
must include all the elements of the crime charged and any material issues, defenses, and
theories for which there is supporting evidence. McGhee, supra at 606. Given the photographic
While it is tempting to utilize MCR 7.215(J)(2) to call for a conflict resolution panel in an
effort to critique the reasoning in Reid, defining “fellatio,” considering the fact that doing so is
not at all necessary to the holding in this case, we decline to do so.
evidence admitted in this case, the trial court’s use of the phrase “touching of [the victim’s]
genital organs with Defendant’s mouth or tongue” in instructing the jury does not defeat the
required showing of penetration, when the trial court also instructed that fellatio required “entry
into Defendant’s mouth by [the victim’s] penis.” Again, when reviewing a trial court’s jury
instructions, this Court must look at the instructions as a whole, rather than the potentially
misleading effect of a single isolated sentence. Aldrich, supra at 124. Even if somewhat
imperfect, instructions do not create error if they fairly present the issues to be tried and
sufficiently protect the defendant’s rights. Id. We conclude that while somewhat imperfect, the
jury instructions make clear that the prosecutor must demonstrate entry into defendant’s mouth
by the victim’s penis and, as a result, fairly presented the issues to be tried and sufficiently
protected defendant’s rights. Id. We find no error.
Defendant also argues that the trial court erred by failing to give a specific unanimity
instruction and that his attorney was ineffective for failing to request one. Because defendant
failed to request a special unanimity instruction, or challenge the trial court’s failure to give such
an instruction, this issue is unpreserved. Thus, our review is limited to plain error affecting
defendant’s substantial rights. Knox, supra at 508. “A defendant has the right to a unanimous
verdict and it is the duty of the trial court to properly instruct the jury on this unanimity
requirement.” People v Martin, 271 Mich App 280, 338; 721 NW2d 815 (2006). In this case,
the trial court gave a general unanimity instruction, which is usually sufficient. Id. But as
further explained in Martin,
the trial court must give a specific unanimity instruction where the state offers
evidence of alternative acts allegedly committed by the defendant and “1) the
alternative acts are materially distinct (where the acts themselves are conceptually
distinct or where either party has offered materially distinct proofs regarding one
of the alternatives), or 2) there is reason to believe the jurors might be confused or
disagree about the factual basis of defendant’s guilt.” [Id., quoting People v
Cooks, 446 Mich 503, 524; 521 NW2d 275 (1994).]
Defendant does not provide any factual or legal basis to show why a general unanimity
instruction was insufficient in this case. We cannot analyze what defendant has not presented.
“It is not enough for an appellant in his brief simply to announce a position or assert an error and
then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and
elaborate for him his arguments, and then search for authority either to sustain or reject his
position. The appellant himself must first adequately prime the pump; only then does the
appellate well begin to flow.” Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
Without defendant’s explaining his argument, this Court must conclude that the general
unanimity instruction was sufficient. Martin, supra at 338. Similarly, defendant has provided no
basis for his ineffective assistance of counsel claim that was based on this issue. Defendant has
not shown error.
Defendant argues that he is entitled to resentencing because the trial court misscored
Offense Variables (OV) 4, 9, 10, and 12. Defendant also argues that he is entitled to
resentencing on counts 2 through 9 because his sentences amounted to an upward departure
unsupported by substantial and compelling reasons. The prosecutor responds that the trial court
scored the offense variables consistent with the evidence introduced at trial and did not abuse its
discretion during sentencing. Preserved scoring issues are reviewed “to determine whether the
trial court properly exercised its discretion and whether the record evidence adequately supports
a particular score.” People v McLaughlin, 258 Mich App 635, 671; 672 NW2d 860 (2003).
Defendant preserved this issue by objecting to the scoring of Offense Variables 4, 9, 10, and 12
in the trial court.
Generally, the application of statutory sentencing guidelines is reviewed de novo. People
v Hegwood, 465 Mich 432, 436; 636 NW2d 127 (2001). The sentencing court has discretion in
determining the number of points to be scored provided that there is evidence on the record that
adequately supports a particular score, People v Hornsby, 251 Mich App 462, 468; 650 NW2d
700 (2002), and thus this Court reviews the scoring to determine whether the sentencing court
properly exercised its discretion and whether the evidence adequately supported a particular
score. People v Steele, 283 Mich App 472, 490; 769 NW2d 256 (2009). In general, “[s]coring
decisions for which there is any evidence in support will be upheld.” People v Endres, 269 Mich
App 414, 417; 711 NW2d 398 (2006).
Defendant first argues that the 10 points scored for, MCL 777.34, OV 4 was incorrect.
He argues specifically that the score is erroneous because no support exists for it in the record.
OV 4 deals with the degree of psychological injury suffered by a crime victim. MCL 777.34.
Ten points are properly scored when serious psychological injury requiring professional
treatment occurred to a victim. People v Hicks, 259 Mich App 518, 535; 675 NW2d 599 (2003);
MCL 777.34. The fact that professional treatment was not sought is not conclusive when scoring
the variable. People v Wilkens, 267 Mich App 728, 740; 705 NW2d 728 (2005); MCL
777.34(2). The trial court stated as follows in regard to OV 4 during sentencing:
It’s quite clear, whether the victim has sought treatment for the injury is
not conclusive and it simply says may require professional treatment. After
hearing the testimony, after seeing their demeanor, after witnessing not only their
testimony but also the taped statements made by them, I am confident that it
would be illogical to assume that they did not suffer some type of psychological
trauma and that they will continue to do so.
Defendant’s argument that there is no support in the record for the scoring of 10 points is belied
by the record. K testified that defendant had been a friend and a father figure to him and that
defendant exploited that relationship to sexually abuse him and that he was “pretty angry” about
what happened to him. K’s mother also indicated that K was angry and that he had tried to block
out memory of the abuse. On the basis of the testimony and the trial court’s observations, the
trial court reasonably concluded that the victims suffered serious psychological injury as a result
of defendant’s abuse and properly scored defendant at 10 points for OV 4.
Defendant argues that no points should have been scored for OV 9, MCL 777.39, because
only one victim was placed in danger on the dates in question in this case. Defendant claims that
the events involving K are alleged to have occurred on August 23, 2001, and there are no photos
of P or M with that date. Further, defendant claims that the events involving P are alleged to
have occurred on March 1, 2000, and there are no photos of K or M from that date. And finally,
defendant asserts that the events involving M are alleged to have occurred on June 15, 2001, and
there are no photos of K or P from that date. He states that on these dates there was only one
victim and that no others were present and thus no others could have been “placed in danger of
injury or loss of life as a victim.” MCL 777.39(2)(a).
MCL 777.39 provides, in pertinent part:
(1) Offense variable 9 is number of victims. Score offense variable 9 by
determining which of the following apply and by assigning the number of points
attributable to the one that has the highest number of points:
(c) There were 2 to 9 victims who were placed in danger of physical injury
or death, or 4 to 19 victims who were placed in danger of property loss...10 points
(2) All of the following apply to scoring offense variable 9:
(a) Count each person who was placed in danger of physical injury or loss
of life or property as a victim.
In People v Sargent, 481 Mich 346, 351; 750 NW2d 161 (2008), our Supreme Court
found that it was improper for a trial court to score OV 9 at 10 points where the alleged second
victim claimed that the defendant had sexually molested her in a separate, uncharged offense.
During its discussion, the Court stated, “[W]hen scoring OV 9, only people placed in danger of
injury or loss of life when the sentencing offense was committed (or, at the most, during the
same criminal transaction) should be considered.” Id. at 350. The Court noted situations where
scoring for multiple victims would be appropriate even where only one conviction resulted,
stating, “For example, in a robbery, the defendant may have robbed only one victim, but scoring
OV 9 for multiple victims may nevertheless be appropriate if there were other individuals present
at the scene of the robbery who were placed in danger of injury or loss of life.” Id. at 350 n 2.
This language was consistent with the holding in People v Morson, 471 Mich 248, 253, 261-262;
685 NW2d 203 (2004), where the Court held that 10 points were properly assessed under OV 9
when the defendant, who waited in a car while her friend robbed a person using a gun provided
by the defendant, endangered two victims during the armed robbery, the woman who was robbed
and another man standing nearby who was shot by the perpetrator. See also id. at 277 (YOUNG,
J., concurring in part and dissenting in part).
Here, the trial court found in the instant case as follows in regard to OV 9:
[I]t’s clear to me that is [sic] doesn’t matter whether the person was
actually a victim, as long as there were more than one person placed in danger.
At any point in time, from what I recall throughout the testimony, there was more
than one person placed in danger because more than one person spent the night in
While defendant attempts to make an argument that piggy-backs our Supreme Court’s
holding in Sargent, supra, the facts here are substantially different from those in Sargent. Here,
there was significant evidence that both M and P would sometimes spend the night at
defendant’s home with K. Simply because there are no pictures of M and P on the night that K
was assaulted does not mean that they were not present and the same goes for the other victims.
On the basis of the testimony, it seems more reasonable that the other boys were sleeping while
defendant was assaulting his chosen victim. There was even testimony from P that he woke up
one night and saw defendant kneeling down by K’s bed. Clearly the record demonstrates that
defendant had a choice of victims when K and his friends would stay the night at his house while
sometimes watching pornography and drinking alcohol provided by defendant, and also supports
the conclusion that defendant would choose a victim while the other boys were present. We
conclude that the trial court properly scored defendant 10 points for OV 9 because the record
supports the inference that at least two other victims were placed in danger of physical injury
when the sentencing offenses were committed.
Defendant next argues regarding OV 10, MCL 777.40, that the record does not establish
by a preponderance of the evidence that there was predatory conduct within the meaning of OV
10 and thus the trial court erred when it scored defendant at 15 points for exploitation of victim
vulnerability because “predatory conduct” was involved.
Offense variable 10 is exploitation of a vulnerable victim. It provides for the following
(a) Predatory conduct was involved …………………………… 15 points
(b) The offender exploited a victim’s physical disability, mental disability,
youth or agedness, or a domestic relationship, or the offender abused his or her
authority status …………………………………………………………. 10 points
(c) The offender exploited a victim by his or her difference in size or
strength, or both, or exploited a victim who was intoxicated, under the influence
of drugs, asleep, or unconscious …………………………………………. 5 points
(d) The offender did not exploit a victim’s vulnerability ………… 0 points
“[T]o be considered predatory, the conduct must have occurred before the commission of the
offense.” People v Cannon, 481 Mich 152, 160; 749 NW2d 257 (2008). “In addition,
preoffense conduct must have been directed at a victim ‘for the primary purpose of
victimization.’” Id. at 161, quoting MCL 777.40(3)(a). Our Supreme Court set forth the
following analytical questions to determine whether the conduct in question was predatory:
(1) Did the offender engage in conduct before the commission of the
(2) Was this conduct directed at one or more specific victims who suffered
from a readily apparent susceptibility to injury, physical restraint, persuasion, or
(3) Was victimization the offender’s primary purpose for engaging in the
preoffense conduct? [Id. at 162.]
“If the court can answer all these questions affirmatively, then it may properly assess 15 points
for OV 10 . . . .” Id.
The trial court stated as follows when it found predatory conduct and assessed defendant
the maximum of 15 points:
Predatory conduct is an offender’s pre-offense conduct directed at a victim
for the primary purpose of victimization [MCL 777.40(3)(a)]. As indicated by the
Prosecutor, this trial transcript is replete with Defendant’s continued predatory
conduct in establishing a long-term relationship with these young men, a
relationship wherein they looked at him as kind of a big brother, kind of like the
mature adult, somebody that they could go to, somebody that allowed them to
behave in whatever manner they wanted to while they were in him home, because
he didn’t have any restrictions while they were in his home. They were allowed,
even though they testified they didn’t overindulge, they were allowed to drink,
they were allowed to smoke, they were allowed to do whatever they wanted to.
Hence, he established a predatory conduct as defined by the statute.
We completely agree with the trial court’s assessment of the evidence showing predatory
conduct. We further point out that defendant befriended the victims and became a confidant to
them so he could easily lure the victims to his home. Then while there, he further engaged in
preoffense conduct by providing a place with completely no restrictions, including providing
them with video games, alcohol, cigarettes, and pornography. Defendant engaged in this course
of conduct with the specific nefarious intent of being able to be alone with the victims so he
could molest or victimize them without the fear of another adult discovering his behavior. The
record supports the trial court’s scoring of OV 10 at 15 points.
Defendant argues regarding OV 12, MCL 777.42, that he should have been scored at zero
because the prosecutor made no showing that three or more contemporaneous felonious criminal
acts involving crimes against a person were committed within the date of the highest offense for
which defendant was convicted, the first-degree CSC against K. The trial court may score
points, from a minimum of one to a maximum of 25, for OV 12 if the defendant committed
felonious criminal acts contemporaneously with the sentencing offense. MCL 777.42(1). A
contemporaneous criminal act is one that occurred within 24 hours of the sentencing offense and
“has not and will not result in a separate conviction.” MCL 777.42(2)(a)(ii). If three or more
contemporaneous felonious criminal acts involving crimes against a person were committed, the
trial court properly scores 25 points. MCL 777.42(1)(a).
Defendant argues that OV 12 was incorrectly scored because there was no evidence that
he committed three or more crimes against a person within 24 hours of his sexually penetrating
K. But, as the prosecutor argued below and on appeal, the evidence demonstrates that defendant
took numerous sexually explicit pictures of victims K, M, and P, and that he took those pictures
around the same time that he sexually penetrated K. Critically important is the fact that
defendant was in possession of those child sexually explicit materials at the time and place where
he committed CSC-I against K. In order to have created those pictures, he had to have possessed
them and he was never charged as a result of the possession. There was ample evidence to
support scoring 25 points.
ALLEGED UPWARD DEPARTURE
In his brief on appeal, defendant argues exactly as follows:
Assuming (for the sake of argument only) that Mr. Waclawski’s Prior
Record Variables and Offense Variables would have been scored as set forth [in
his argument,] his sentences on those counts amount to an upward departure.
Because we have found no scoring error, defendant’s argument here is wholly without merit
because no upward departure occurred.
Defendant argues that he is entitled to jail credit for the time served in an Illinois jail
from April 2006 through October 2006 because of the excessive delay in returning him to
Michigan. He claims that he was incarcerated pursuant to the IAD while awaiting extradition.
The question whether defendant is entitled to sentence credit pursuant to MCL 769.11b for time
served in jail before sentencing is an issue of law that we review de novo. People v Givans, 227
Mich App 113, 124; 575 NW2d 84 (1997). MCL 769.11b provides:
Whenever any person is hereafter convicted of any crime within this state
and has served any time in jail prior to sentencing because of being denied or
unable to furnish bond for the offense of which he is convicted, the trial court in
imposing sentence shall specifically grant credit against the sentence for such
time served in jail prior to sentencing.
Defendant’s argument fails because the sentencing credit statute specifically provides that a
defendant is entitled to credit for time served “for the offense of which he is convicted . . . .”
MCL 769.11b; see People v Adkins, 433 Mich 732, 750; 449 NW2d 400 (1989). While
defendant characterizes his time spent in the Illinois jail as time awaiting extradition on the
Michigan charges, he ignores the fact that he was actually serving time in Illinois because he was
convicted of a felony in Illinois and was serving his term of incarceration for that felony. The
statute is plain and he is not entitled to relief.
Defendant argues that he is entitled to have his presentence investigation report (PSIR)
amended because the trial court did not adequately resolve his challenges at sentencing.
Defendant objected to the probation agent’s reference to defendant’s being “uncooperative” and
statement that defendant refused to answer questions that he did not find relevant in light of his
appeal. Defendant also objected to the PSIR’s inclusion of “victim” impact statements from the
mothers of the complaining witnesses. The trial court’s response to a claim of inaccuracies in
the presentence investigation report is reviewed for an abuse of discretion. Uphaus (On
Remand), supra at 181. A court abuses its discretion when it selects an outcome outside the
range of reasonable and principled outcomes. Id.
Because the Department of Corrections makes critical decisions concerning a defendant’s
status on the basis of information contained in the PSIR, the PSIR should accurately reflect any
determination the sentencing judge has made regarding the accuracy or relevance of its
information. Uphaus (On Remand), supra at 182. At sentencing, either party may challenge
the accuracy or relevancy of any information contained in the presentence report. MCL
771.14(6); MCR 6.425(E)(1)(b); People v Lloyd, 284 Mich App 703, 705-706; 774 NW2d 347
(2009). The information is presumed to be accurate, and the defendant has the burden of going
forward with an effective challenge, but upon assertion of a challenge to the factual accuracy of
information, a court has a duty to resolve the challenge. People v Grant, 455 Mich 221, 233234; 565 NW2d 389 (1997); Lloyd, supra at 705. When the accuracy of the presentence report is
challenged, the trial court must allow the parties to be heard and must make a finding as to the
challenge or determine that the finding is unnecessary because the court will not consider it
during sentencing. MCR 6.425(E)(2). It may adjourn sentencing to permit the parties to prepare
for or respond to a challenge. MCL 771.14(6); Lloyd, supra at 705. The grant of an additional
hearing is in the sentencing court’s discretion. People v Harvey, 146 Mich App 631, 636; 381
NW2d 779 (1985). Once a defendant effectively challenges a factual assertion, the prosecutor
has the burden to prove the fact by a preponderance of the evidence. Lloyd, supra at 705.
Although the Michigan Rules of Evidence do not apply at a sentencing proceeding, the
defendant must be afforded an adequate opportunity to rebut any matter he or she believes to be
inaccurate. Uphaus (On Remand), supra at 183-184. If the court finds that challenged
information is inaccurate or irrelevant, that finding must be made part of the record and the
information must be corrected or stricken from the report.
MCL 771.14(6); MCR
6.425(E)(2)(a); Lloyd, supra at 705. When a sentencing court disregards information challenged
as inaccurate, the court effectively determines that the information is irrelevant and the defendant
is entitled to have the information stricken from the report. People v Spanke, 254 Mich App 642,
649; 658 NW2d 504 (2003). The failure to strike disregarded information can be harmless error.
People v Fisher, 442 Mich 560, 567 n 4; 503 NW2d 50 (1993).
The sentencing record reveals that defendant objected to a statement in his PSIR that he
was “uncooperative and refused to answer questions” during the PSIR interview with the
probation department. At sentencing, defendant’s counsel explained that defendant is a former
attorney and understood his right to refuse to answer questions based on the Fifth Amendment,
thus he was exercising that right and was not being uncooperative. The trial court found that the
statement in the PSIR was accurate because it reflected the interviewer’s “genuine opinion as to
how [defendant] projected himself to her in answering the questions.” The trial court then stated
that the “guideline range is set by the scoring, not by [the interviewer’s] opinion. Her
recommendation might be reflected in her opinion, but the guideline range is set by statute.”
Clearly the trial court allowed defendant an opportunity to challenge the accuracy of the
information in the PSIR, considered it, and then rejected it because the narrative of the exchange
between defendant and the probation interviewer was accurate with regard to the interviewer’s
impression of what transpired during the interview. The trial court further made clear that the
“opinion” of the probation interviewer would not be used in the calculation of the sentences
because the guideline range is what sets the sentences. The trial court did not abuse its discretion
by concluding that the PSIR was accurate.
Defendant also argues that the trial court abused its discretion when it allowed the
mothers of K, P, and M to give victim’s impact statements and to allow references to them to be
included in the PSIR. MCL 780.764 and 780.765 grant individuals who suffer direct or
threatened harm as a result of a convicted individual’s crime the right to submit an impact
statement both at the sentencing hearing and for inclusion in the PSIR; however, the right is not
limited exclusively to the defendant’s direct victims. Instead, “a sentencing court is afforded
broad discretion in the sources and types of information to be considered when imposing a
sentence . . . .” People v Albert, 207 Mich App 73, 74; 523 NW2d 825 (1994). Moreover, this
broad discretion does not infringe on a convicted individual’s due process rights, because the
evidence was not taken into consideration in determining the defendant’s guilt. See Williams v
New York, 337 US 241, 246-247; 69 S Ct 1079; 93 L Ed 1337 (1949).
Here the trial court stated as follows in regard to defendant’s objection at sentencing:
Certainly is [sic] would have been nice to have heard from the young men
themselves, but I can’t find any quarrel with listening to their parents and how it
has affected them, how it affected them upon their knowledge of the allegations
and how it continues to affect them insofar as they may be embarrassed to come
back. I have no objection or I have no problem with what is contained within the
impact statement as provided by the mothers, the mother, I’m sorry. So it’s going
Plainly, the law does not limit victim’s impact statements to direct victims. As the trial
court stated, the victims are now young men who likely suffered great embarrassment as a result
of defendant’s victimization of them as children. The three victims did not attend sentencing or
submit victim impact statements. However, this is much more likely the result of humiliation
and shame rather than, as defendant intimates, because they did not suffer injury. The decision
to allow the mothers to give victim impact statements was within the trial court’s discretion and
the trial court did not abuse that discretion when it allowed references to the mothers’ statements
in the PSIR. Albert, supra at 74-75.
Defendant next argues in propria persona that this Court must reverse defendant’s
convictions and suppress all the evidence because the search warrants yielding the evidence were
overbroad and lacked the particularity required for searches of an attorney’s computer and
computer storage media, because there was a failure to minimize the risk of intercepting
evidence of unrelated noncriminal activity, and because there was a failure to incorporate search
methods to protect the attorney-client privilege and attorney work product. A trial court’s
findings on a motion to suppress evidence as illegally seized will not be reversed on appeal
unless clearly erroneous, People v Jones, 249 Mich App 131, 135; 640 NW2d 898 (2002);
People v Toodle, 155 Mich App 539, 543; 400 NW2d 670 (1986), while questions of law and the
decision on the motion are reviewed de novo, Jones, supra at 135. A finding is clearly erroneous
when it leaves this Court with a definite and firm conviction that the trial court made a mistake.
People v Hahn, 183 Mich App 465, 469; 455 NW2d 310 (1989), vacated in part and remanded
437 Mich 867 (1990); Toodle, supra at 543.
While defendant presents a long and circuitous argument regarding many aspects of the
government’s search of his computers and computer storage media that is based on the allegation
that because he is an attorney and those items contained files that were clearly attorney work
product they could not be searched, this issue boils down into a simple matter. This Court
explained in Ravary v Reed, 163 Mich App 447, 453; 415 NW2d 240 (1987):
The attorney-client privilege attaches to communications made by a client
to his or her attorney acting as a legal adviser and made for the purpose of
obtaining legal advice on some right or obligation. Alderman v The People, 4
Mich 414, 422 (1857), Kubiak v Hurr, 143 Mich App 465, 472-473; 372 NW2d
341 (1985). The purpose of the privilege is to allow a client to confide in his or
her attorney secure in the knowledge that the communication will not be
disclosed. Id., 473. The privilege is personal to the client, who alone can waive it.
Passmore v Passmore’s Estate, 50 Mich 626, 627; 16 NW 170 (1883).
And furthermore, “[i]t is well settled that the attorney-client privilege belongs to the client and
not the attorney.” People v Bortnik, 28 Mich App 198, 201; 184 NW2d 275 (1970). As such,
defendant may not assert a privilege that is not his to assert. The privilege belonged only to his
former clients and not to defendant.
In any event, defendant presents no evidence that the government even reviewed any
work-related documents that he claims are on his computers (including the digital camera) and
computer storage media. At the hearing on this matter, the trial court asked the prosecutor if she
acquired any information from defendant’s computers or computer storage media that was not
directly relevant to the charges in the complaint against defendant. The prosecutor responded in
the negative and stated that defendant had “an opportunity to review all of the materials that are
considered evidentiary in this case.” She further stated that the materials did not include
anything relating to an attorney/client privilege. The prosecutor also stated that the forensic
examination of defendant’s computers and computer storage materials “would have to be very
specific and very careful according to the keyword searches of the relevant evidence in this case.
And again there’s no indication that [the forensic examiner’s search] in this case did, in fact[,]
touch upon any attorney/client product or work product.” The prosecutor further elaborated:
[T]he search warrants in this case were, were not applied for by me, I did
review them and they were adequately specific in this case in that the search
warrants, the property to be seized were documents and records pertaining to
child sexually abusive material. Not an overall, open search of every [sic] filed
on Defendant’s computer. That’s not what was granted here, that’s not what was
conducted here. And based upon my conversations with Sergeant [Rebecca]
MacArthur and the fact that she is an experienced computer forensic examiner
and, and experienced in the search and seizure of computers, she was well aware
too of the potential impact of the Defendant being a, and [sic] attorney in this
case. And based upon those facts, that’s why she conducted a limited review of
the material, related only to the property to be seized in this case, which [were]
documents or records relating to child sexually abusive material.
The trial court also stated that it would not “allow anything about any client that he may have
represented to come out during this trial.”
At trial, nothing from defendant’s computers or computer storage media was used in
evidence other than child pornography that was found by the Michigan State Police (MSP)
computer forensic examiner, Detective Rebecca MacArthur. Detective MacArthur testified at
trial that she has had over 800 hours training in computer forensics. She testified that she used
specialized forensic software programs (“Forensic Tool Kit” and “Encase”) through an approved
computer forensics protocol to analyze defendant’s computers and computer storage media. She
stated that she searched defendant’s computers and storage media only for evidence relevant to
the investigation, specifically files containing child pornography. She stated that there is a
graphics viewer feature in both programs that allowed her to view any pictures present and then
she scrolled through the pictures and bookmarked child pornography images she found.
Detective MacArthur found several thousand images of child pornography but only flagged
several hundred of them because their data indicated that they may have been taken with a digital
camera. Then she narrowed down the pool to 32 images because their raw data indicated that
they were taken with defendant’s digital camera with embedded dates and times in the image
Defendant has not pointed to, and we have not found, an instance where a single file
unrelated to child pornography was revealed to the jury or was used in any way at trial. Further,
defendant has not provided any evidence that the MSP or the prosecutor examined or acquired
any file from his computers or computer storage media that was unrelated to the prosecution of
this case to indicate that their search was in error or overbroad. And finally, to the extent that
defendant argues that any files present on his computers or computer storage media are protected
by the attorney-client privilege, that argument also fails because the privilege is not his to assert.
Defendant has not established error.
Defendant’s next argument in propria persona is that this Court must reverse his
convictions and suppress all evidence because the search warrants yielding the evidence failed to
set standards by which the government could distinguish between relevant and nonrelevant files,
because there were no measures to reduce the interception of evidence of noncriminal activity
unrelated to the investigation, and because the government conducted a general, exploratory
search of the computers and storage media.
This issue basically reargues the same issues defendant raised in the previous issue.
Defendant urges this Court to believe that the government engaged in an overbroad and
unfettered search of his personal and work files on his computers and computer storage media
that were intermingled with files relevant to his prosecution. Defendant continues to assert that
he has special privileges as an attorney who possessed computer files that were subject to the
attorney-client privilege. For these reasons, defendant asserts that the search of his computers
and computer storage media was improper and that all evidence seized must be suppressed.
But as we outlined in our discussion of the previous issue, defendant has presented no
evidence that the police or prosecutor engaged in an unlawful overbroad search of his computer
materials. Instead, the evidence shows that the government, through an MSP computer forensic
examiner, engaged in a very specific, limited search of defendant’s computers and computer
storage media utilizing specialized search tools to identify only those files relevant to the
criminal charges brought against defendant. In fact, at trial, testimony showed that only those
files that contained images of child pornography were even viewed by the forensic examiner.
Because defendant has presented no evidence to the contrary, defendant has not shown that this
matter should be remanded for an evidentiary hearing as defendant requests, or that the search
was improper and the evidence seized should be suppressed.
Defendant argues in propria persona that the search warrants dated March 20, 2006,
March 31, 2006, May 12, 2006, and February 5, 2007, must be quashed and the fruits of the
searches suppressed. A search warrant may not be issued unless probable cause exists to justify
the search. US Const, Am IV; Const 1963, art 1, § 11; MCL 780.651; People v Sloan, 450 Mich
160, 166-167; 538 NW2d 380 (1995), overruled in part on other grounds in People v Wager, 460
Mich 118; 123-124 (1999), and overruled in part on other grounds in People v Hawkins, 468
Mich 488; 502 (2003); Martin, supra at 298. Probable cause exists when the facts and
circumstances would allow a reasonable person to believe that the evidence of a crime or
contraband sought is in the stated place. People v Kazmierczak, 461 Mich 411, 417-418; 605
NW2d 667 (2000); People v Osantowski, 274 Mich App 593, 615; 736 NW2d 289 (2007), rev’d
in part and remanded on other grounds 481 Mich 103 (2008).
Probable cause must be based on facts presented to the issuing magistrate by oath or
affirmation. Sloan, supra at 167-168; People v Mitchell, 428 Mich 364, 367; 408 NW2d 798
(1987). When probable cause is averred in an affidavit, the affidavit must contain facts within
the knowledge of the affiant rather than mere conclusions or beliefs. The affiant may not draw
his or her own inferences, but must state the matters that justify the drawing of inferences.
Sloan, supra at 168-169; Martin, supra at 298. However, the affiant’s experience is relevant to
the establishment of probable cause. People v Darwich, 226 Mich App 635, 639; 575 NW2d 44
(1997). The affidavit should be signed by the affiant. A warrant based upon an unsigned
affidavit is presumed to be invalid, but the prosecutor may rebut the presumption by showing
that the affidavit was made on oath to a magistrate. Mitchell, supra at 369; People v Tice, 220
Mich App 47, 52; 558 NW2d 245 (1996).
Defendant asserts that this Court must quash the March 20, 2006, search warrant, and
suppress all fruits of the search, because the search warrant was obtained with impermissible
police hearsay and was obtained with an invalid, unsigned affidavit, and because the invalid,
unsigned affidavit was not before the court issuing the search warrant, and, therefore, the search
warrant was issued without probable cause. We conclude that all these challenges are baseless.
In People v Sellars, 153 Mich App 22, 27; 394 NW2d 133 (1986), this Court observed:
[A] warrant may issue on probable cause if the police have conducted an
independent investigation to confirm the accuracy and reliability of the
information regardless of the knowledge and reliability of the source. This rule is
clearly set forth in both federal and state Supreme Court decisions.
See also People v Harris, 191 Mich App 422, 425-426; 479 NW2d 6 (1991) (recognizing that a
search warrant may be issued on the basis of an affidavit that contains hearsay as long as the
police have conducted an independent investigation to verify the information).
In this case, defendant has not demonstrated error with regard to police hearsay. The
record clearly establishes that the facts stated in the affidavit were confirmed by independent
police investigation. Sellars, supra at 27. Detective Elizabeth Egerer stated that she received a
complaint from the Illinois Crimes Against Children Unit. Detective Egerer communicated
personally with Illinois Detective Andrew Uhlir, confirming the information in the complaint
regarding defendant’s trip to Illinois and his admission to the police that the reason for the trip
was to engage in sexual activities with a perceived minor named “Coty” whom he had been
chatting with on the Internet. Moreover, viewing the affidavit in a common-sensical and realistic
manner, a reasonably cautious person could have concluded that there was a substantial basis for
the finding of probable cause to issue a search warrant. People v Keller, 479 Mich 467, 477; 739
NW2d 505 (2007); People v Whitfield, 461 Mich 441, 446; 607 NW2d 61 (2000). Further, the
record reveals that Detective Egerer appeared before the magistrate on March 20, 2006, and
swore or affirmed the accuracy of her affidavit. Police officers are presumptively reliable, and
self-authenticating details also establish reliability. People v Ulman, 244 Mich App 500, 509;
625 NW2d 429 (2001); People v Powell, 201 Mich App 516, 523; 506 NW2d 894 (1993).
Defendant next argues with regard to the March 20, 2006, affidavit that it must be
deemed invalid because there was no “search warrant from Illinois” in existence on March 20,
2006, because the Illinois search warrant was not in existence until it was signed by a judge on
March 23, 2006. This Court cannot confirm this assertion in the lower court record. However,
the record does reveal that on the Affidavit for Search Warrant, at item 2, Detective Egerer, the
affiant, represents that an Illinois search warrant is attached to her affidavit. At item 2, it states,
in part, “See attachment 1, the search warrant from Illinois, for more details.” The copy of the
affidavit we used for review of this issue is attached to defendant’s Standard 4 brief on appeal.
This exhibit does not have an “attachment 1.” However, we find no error because even if the
attachment was not present on March 20, 2006, when Detective Egerer went before the
magistrate, the magistrate stated specifically on the record that “[b]ased on the Affidavit for the
search warrant, pages one through three, the Court will find probable cause to issue . . . the
search warrant based on the Affidavit.” Clearly, the magistrate considered only the three-page
affidavit before it and found probable cause without the attachment. Again, when viewing the
three-page affidavit alone in a common-sensical and realistic manner, a reasonably cautious
person could have concluded that there was a substantial basis for the finding of probable cause
to issue a search warrant. Keller, supra at 477; Whitfield, supra at 446. Defendant has not
Defendant asserts that this is not a situation where Detective Egerer inadvertently failed
to attach Detective Uhlir’s Illinois search warrant to her March 20, 2006, affidavit for a search
warrant, instead, she did not have the Illinois search warrant and misrepresented herself. A
defendant has the right to challenge the truthfulness of an affidavit’s factual statements, but
under a difficult standard:
“There is, of course, a presumption of validity with respect to the affidavit
supporting the search warrant. To mandate an evidentiary hearing, the
challenger’s attack must be more than conclusory and must be supported by more
than a mere desire to cross-examine. There must be allegations of deliberate
falsehood or of reckless disregard for the truth, and those allegations must be
accompanied by an offer of proof. They should point out specifically the portion
of the warrant affidavit that is claimed to be false; and they should be
accompanied by a statement of supporting reasons. Affidavits or sworn or
otherwise reliable statements of witnesses should be furnished, or their absence
satisfactorily explained. Allegations of negligence or innocent mistake are
insufficient. The deliberate falsity or reckless disregard whose impeachment is
permitted today is only that of the affiant, not of any nongovernmental
informant.” [People v Turner, 155 Mich App 222, 226-227; 399 NW2d 477
(1986), quoting Franks v Delaware, 438 US 154, 171; 98 S Ct 2674, 2684; 57 L
Ed 2d 667 (1978).]
The defendant has the burden of showing, by a preponderance of the evidence, that the affiant
knowingly and intentionally, or with a reckless disregard for the truth, inserted false material into
the affidavit and that the false material was necessary to the finding of probable cause. People v
Williams, 240 Mich App 316, 319-320; 614 NW2d 647 (2000). On this record, defendant has
not made this showing and, as such, has not established error with regard to the March 20, 2006,
affidavit or search warrant.
Defendant’s sole argument regarding the March 31, 2006, and May 12, 2006, search
warrants is that they must be quashed and the fruit of the searches suppressed because they were
issued following the illegal searches of defendant’s home and home office on March 20, 2006.
Because defendant has not established error with regard to the March 20, 2006, search, this
Defendant also argues that the February 5, 2007, search warrant must be quashed and the
fruit of its search suppressed because the February 5, 2007, search warrant was issued following
illegal searches of defendant’s home and home office on March 20, 2006, and March 31, 2006.
Again, this argument fails because defendant has not established error with regard to the March
20, 2006, search.
Defendant also argues that the evidence revealed as a result of the search of his digital
camera should have been suppressed because it was obtained by the government in violation of
two court orders. Defendant contends that the Illinois court issued two orders both dated July 23,
2006. He asserts that the first order indicated that “Evidence shall be preserved until further
order of the court.” And he states that the second order pertained to defendant’s personal
property then in Illinois and required that any property not being held as evidence was to be
returned to defendant’s attorney. He urges this Court that an evidentiary hearing would have
shown that the camera was in Illinois and that Detective Uhlir brought the digital camera from
Illinois and gave it to Detective MacArthur in Michigan and that no Michigan magistrate would
have issued the February 5, 2007, search warrant had the government revealed that the property
to be seized was then in Illinois and under the jurisdiction of an Illinois court. We find no
substance to this argument. The February 5, 2007, search warrant pertaining to defendant’s
Kodak DC3400 Digital Camera, his suitcase, and other personal items including a shaving kit, a
Samsung/Verizon cellular phone, clothes, and a personal planner clearly shows that the property
was located at the “Wheaton Police Department, 900 W. Liberty Drive, Wheaton, IL, 60187.”
The search warrant was plain that the items to be searched were located in Illinois and were
presumably there as a result of defendant’s Illinois arrest, conviction, and incarceration.
Defendant has not shown error.
Defendant next contends in his Standard 4 brief on appeal that this Court must dismiss
the charges against defendant on the basis that jurisdiction was lost because of the failure of the
prosecutor to timely file an information and because the IAD mandates dismissal with prejudice
of untried charges. Interpretation of a court rule presents a question of law that we review de
novo. Waatti & Sons Electric Co v Dehko, 230 Mich App 582, 586; 584 NW2d 372 (1998).
At a hearing a little over a week before trial, defendant’s attorney informed the trial court
and the prosecutor that he had looked over the court docket entries the night before and noticed
that an original felony information apparently had not been filed with the circuit court. The trial
court had recently ordered the prosecutor to file an amended felony information with the circuit
court and therefore, defendant’s attorney argued twofold: (1) that the circuit court did not have
jurisdiction over defendant as a result of the alleged nonfiling and (2) that the prosecutor should
not be allowed to file an amended information without an original first being filed. The trial
court heard argument on the issues, inspected the court file, inspected the docket entries, spoke
with the court clerk, and discussed the issues with counsel. The prosecutor stated that she had an
information dated December 18, 2006, but it was not time-stamped as having been received by
the circuit court. The trial court stated that there was no information dated December 18, 2006,
in the trial court file. The trial court then made observations that it could have been lost between
the district court and the circuit court or it could have been lost between the circuit court and the
Court of Appeals during the interlocutory appeal. The trial court reviewed the file and
determined that defendant had clearly been arraigned on the charges in circuit court and that at
defendant’s arraignment he waived the reading of the information. The trial court found that that
being the case, defendant had waived any assignment of error in regard to the information. The
trial court then accepted the prosecutor’s amended information into the court record on that date.
On appeal, defendant points out that although he waived reading of the information at the
arraignment, he did not waive the actual filing of an information.
The purpose of an arraignment is to provide formal notice of the charge against the
accused. People v Thomason, 173 Mich App 812, 815; 434 NW2d 456 (1988), citing People v
Killebrew, 16 Mich App 624, 627; 168 NW2d 423 (1969). At an arraignment, the information is
read to the accused and the accused may enter a plea to those charges. Thomason, supra at 815,
citing former MCR 6.101(D)(1). The accused may waive the reading of the formal charges at
the arraignment. Id. The record is clear that defendant waived formal reading of the charges at
his arraignment and stood mute. The circuit court entered a plea of not guilty on defendant’s
From the discussion that took place on the record on April 29, 2008, it appears to this
Court that an original felony information was not filed by the prosecutor in this case. There was
no record of it in the lower court file and the docket entries did not indicate that one had ever
been filed. MCR 6.112 governs the information or indictment and provides as follows:
(A) Informations and Indictments; Similar Treatment. Except as otherwise
provided in these rules or elsewhere, the law and rules that apply to informations
and prosecutions on informations apply to indictments and prosecutions on
(B) Use of Information or Indictment. A prosecution must be based on an
information or an indictment. Unless the defendant is a fugitive from justice, the
prosecutor may not file an information until the defendant has had or waives a
preliminary examination. An indictment is returned and filed without a
preliminary examination. When this occurs, the indictment shall commence
(C) Time of Filing Information or Indictment. The prosecutor must file the
information or indictment on or before the date set for the arraignment.
(D) Information; Nature and Contents; Attachments. The information must
set forth the substance of the accusation against the defendant and the name,
statutory citation, and penalty of the offense allegedly committed. If applicable,
the information must also set forth the notice required by MCL 767.45, and the
defendant’s Michigan driver’s license number. To the extent possible, the
information should specify the time and place of the alleged offense. Allegations
relating to conduct, the method of committing the offense, mental state, and the
consequences of conduct may be stated in the alternative. A list of all witnesses
known to the prosecutor who may be called at trial and all res gestae witnesses
known to the prosecutor or investigating law enforcement officers must be
attached to the information. A prosecutor must sign the information.
(E) Bill of Particulars. The court, on motion, may order the prosecutor to
provide the defendant a bill of particulars describing the essential facts of the
(F) Notice of Intent to Seek Enhanced Sentence. A notice of intent to seek
an enhanced sentence pursuant to MCL 769.13 must list the prior convictions that
may be relied upon for purposes of sentence enhancement. The notice must be
filed within 21 days after the defendant’s arraignment on the information charging
the underlying offense or, if arraignment is waived, within 21 days after the filing
of the information charging the underlying offense.
(G) Harmless Error. Absent a timely objection and a showing of prejudice,
a court may not dismiss an information or reverse a conviction because of an
untimely filing or because of an incorrectly cited statute or a variance between the
information and proof regarding time, place, the manner in which the offense was
committed, or other factual detail relating to the alleged offense. This provision
does not apply to the untimely filing of a notice of intent to seek an enhanced
(H) Amendment of Information. The court before, during, or after trial
may permit the prosecutor to amend the information unless the proposed
amendment would unfairly surprise or prejudice the defendant. On motion, the
court must strike unnecessary allegations from the information.
The information duly notifies a defendant of the charges instituted against the defendant
and further eradicates double jeopardy issues in the event of a retrial. People v Traughber, 432
Mich 208, 215; 439 NW2d 231 (1989). The dispositive question in determining whether a
defendant was prejudiced by a defect in the information is whether the defendant knew the acts
for which he or she was being tried so that he or she could adequately put forth a defense. Id.
Given that it appears the prosecution violated MCR 6.112(C), the issue is whether the harmless
error provision of MCR 6.112(G) requires dismissal.
MCR 6.112(G) places the burden on defendant to demonstrate prejudice and thus
establish that the error was not harmless. In this case defendant cannot show that he was
prejudiced because he clearly knew the charges against him and, as an attorney, heavily
participated in his own defense including preparing his case for trial. The file contains a felony
complaint dated May 23, 2006, as well as a bindover dated December 11, 2006, that clearly set
out the charges against defendant. Defendant does not claim that he did not have access to the
felony complaint or bindover form or that he was not aware or able to defend against the charges
against him. Further, there was argument before the circuit court where defendant was
successful in getting three CSC-I charges he was facing reduced to one charge of CSC-I before
trial. Defendant did not raise this issue until about one week before trial. There is absolutely no
indication that defendant was not aware of the charges upon which he would stand trial. Because
MCR 6.112(G) precludes dismissal “[a]bsent . . . a showing of prejudice,” and defendant has not
made that initial showing, the trial court did not err by failing to dismiss the case.
While defendant characterizes this issue as one of jurisdiction, in order to attempt to
invoke the protections of the IAD and have all the charges against him dropped as a result of the
IAD, he ignores the proper analysis under MCR 6.112(G) regarding whether he was prejudiced.
He was not. The prosecutor did file an information on the date she became aware of the issue
and there was no error in the court’s accepting it because this Court has held that time is not of
the essence, nor is it a material element, in a criminal sexual conduct case, at least where the
victim is a child. People v Stricklin, 162 Mich App 623, 634; 413 NW2d 457 (1987). To the
extent defendant argues that he received ineffective assistance of counsel because his first two
attorneys failed to point out this issue, defendant’s argument fails because he has not shown
prejudice pursuant to MCR 6.112(G). Thus, defendant is not entitled to relief.
In his final argument in propria persona, defendant argues that this Court must reverse
his convictions and bar retrial because a police witness interjected irrelevant and extremely
inflammatory testimony, the interjection was not innocent and was within the control of the
prosecution, and the trial court failed to immediately strike the testimony and issue a cautionary
instruction to the jury. This Court reviews for an abuse of discretion a trial court’s ruling
whether to grant a mistrial. People v Alter, 255 Mich App 194, 205; 659 NW2d 667 (2003). A
mistrial is warranted only when an error or irregularity in the proceedings prejudices the
defendant “and impairs his ability to get a fair trial.” People v Bauder, 269 Mich App 174, 195;
712 NW2d 506 (2005) (quotation marks and citation omitted). “A trial court abuses its
discretion when it fails to select a principled outcome.” People v Horn, 279 Mich App 31, 35 n
1; 755 NW2d 212 (2008).
At the time the police searched defendant’s home on March 20, 2006, they found and
seized a small amount of suspected marijuana. Defendant brought a pretrial motion to suppress
the evidence and the trial court ruled that a complainant must first testify that he was given
marijuana by defendant before a police officer would be permitted to testify with regard to the
search results at trial. At trial, while discussing the search of defendant’s home, the following
exchange occurred between the prosecutor and Detective Egerer:
The Prosecutor: Okay, and once you seized those CDs, was there
anything else of evidentiary value that you found in the house?
Detective Egerer: We did also seize a small baggy of suspected marijuana
out of the Defendant’s bedroom.
Defendant immediately asked for the jury to be removed from the courtroom. The trial court
then excused the jury and defendant moved for a mistrial. The trial court denied the motion,
instead finding that a curative instruction at the end of trial would be sufficient to cure any error.
The trial court admonished the prosecutor for failing to properly prepare the witness not to
mention the marijuana and instructed the prosecutor not to mention it again before the jury. The
trial court instructed defense counsel to prepare a curative instruction for its review. The jury
returned and there was no further mention of the suspected marijuana. After the close of the
proofs, the trial court instructed the jury and did provide an instruction regarding the suspected
marijuana testimony. It was as follows:
The Prosecution presented evidence that suspected marijuana was found in
the home of the Defendant. Mr. Waclawski is not charged with possession of
marijuana in this case. You must not consider this evidence in any way in
arriving at your verdict.
Although the challenged portion of Detective Egerer’s testimony went beyond the scope
of the prosecutor’s questioning, it constituted an isolated comment that was not repeated or
explored further. In People v Griffin, 235 Mich App 27, 36; 597 NW2d 176 (1999), overruled in
part on other grounds People v Thompson, 477 Mich 146; 148 (2007), this Court discussed
unresponsive testimony, stating, in relevant part:
[N]ot every instance of mention before a jury of some inappropriate
subject matter warrants a mistrial. Specifically, an unresponsive, volunteered
answer to a proper question is not grounds for the granting of a mistrial.
[Quotation marks and citation omitted.]
As such, Detective Egerer’s “unresponsive, volunteered” testimony did not constitute error that
impaired defendant’s ability to get a fair trial. Bauder, supra at 195. Furthermore, the trial court
provided a comprehensive curative instruction to the jury. Because jurors are presumed to
follow the instructions given, People v Rodgers, 248 Mich App 702, 717; 645 NW2d 294 (2001),
the curative instruction alleviated any possible prejudice to defendant. People v Messenger, 221
Mich App 171, 180; 561 NW2d 463 (1997). Thus, the trial court did not abuse its discretion
when it denied defendant’s request for a mistrial.
/s/ Karen M. Fort Hood
/s/ David H. Sawyer
/s/ Pat M. Donofrio