MSC holds that MRE 803(7) permits a defendant to introduce evidence of an undocumented report of sexual abuse made to a school official

In People v. Marshall, No. 150165, the Michigan Supreme Court vacated the opinion of the Court of Appeals and held that MRE 803(7) permits a defendant to introduce evidence that a report of sexual abuse purportedly made to a school official was never documented. The defendant was convicted of multiple counts of criminal sexual conduct. At trial, the defendant sought to introduce evidence that it was never documented that the victim reported sexual abuse to her teacher years earlier, as the victim had testified she did. The trial court did not allow the evidence. On appeal, the defendant argued that the evidence was admissible under MRE 803(7), which allows introduction of “[e]vidence that a matter is not included in the memoranda, reports, records, or data compilations . . . to prove the nonoccurrence or nonexistence of the matter” where such records are kept in the regular course of business. The Court of Appeals held in an unpublished opinion that MRE 803(7) does not apply to evidence of absence of an entire record.
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MSC directs trial court to correct judgment of sentence that lists four first-degree murder convictions when only two people were murdered

In People v. Perry, No. 150147, the Michigan Supreme Court remanded to the trial court, directing it to correct the judgment of sentence to reflect two first-degree murder convictions instead of four because only two people were murdered.  The court relied on People v. Orlewicz, 293 Mich App 96 (2001), in which the Court of Appeals held that convicting a defendant of both first-degree premeditated murder and first-degree felony murder arising out of the death of a single person violates double jeopardy protection.
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MSC holds that presentence report must include sentencing guideline calculation for all offenses of conviction

In People v. Alfaro, No. 150437-8, the Michigan Supreme Court vacated the defendant’s sentence because the presentence report did not include the sentencing guidelines calculation for one of the defendant’s offenses of conviction as required by MCL 771.14(2)(e). The defendant was convicted of both first-degree criminal sexual conduct and second-degree criminal sexual conduct, and the presentence report included only a guidelines calculation for the first-degree conviction. The Court of Appeals previously held in an unpublished opinion that since there were multiple concurrent convictions, only the guidelines range for the highest-class felony applies, and the trial court therefore did not need to articulate reasons for an upward departure from the guidelines sentence for the second-degree conviction. The Michigan Supreme Court, by contrast, held that the court must calculate the guidelines range for both convictions because it is authorized to impose a consecutive sentence rather than a concurrent sentence, since the acts of criminal sexual conduct occurred in the same transaction.
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MSC grants mini-oral argument on whether reasonable mistake of age is a defense to third-degree criminal sexual conduct involving a 13 to 16-year-old

In People v. Kilgo, No. 151076, the Michigan Supreme Court granted mini-oral argument on the application for leave to appeal, directing the parties to brief the issue of whether its decision in People v. Cash, 419 Mich 230 (1984) remains viable. In People v. Cash, the Michigan Supreme Court held that a reasonable mistake of age is no defense in a prosecution for third-degree criminal sexual conduct involving a 13 to 16-year-old. The court also directed the parties to brief whether the denial of the ability to assert a reasonable mistake of age defense in this context violates due process or equal protection principles.
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MSC grants mini-oral argument to consider whether defendant can be charged with felony under Election Code for forging signatures on nominating petition

In People v. Hall, No. 150677, the Michigan Supreme Court granted mini-oral argument to consider whether to grant leave to appeal on the issue of whether the Election Code’s forgery and nomination petition provisions conflict and therefore the defendant may only be charged under the misdemeanor statute. The defendant was charged with forgery under MCL 168.937, after he forged signatures for a district judge candidate’s nominating petition. He was originally charged with multiple felony counts of forgery under MCL 168.937 of the Election Code.  This is a felony punishable by a fine not exceeding $1,000.00, and/or by imprisonment for a term not exceeding 5 years.   The trial court and the Michigan Court of Appeals held, however, that Hall should have been charged with misdemeanor forgery under MCL 168.544c(9) of the Election Code. The Supreme Court will hear mini-oral argument to determine whether to these two criminal provisions of the Election Code conflict, and Hall should therefore be charged with the misdemeanor offense, rather than the felony offense. The court also directed the parties to address whether the rule of lenity applies in this case and whether charging the defendant with felony forgery under MCL 168.937 violates his due process rights because the warning on the nominating petitions lists forgery as a misdemeanor offense.
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COA reiterates the finality of arbitration awards

In Fette v Peters Construction Co., No. 320803, the Court of Appeals held that when there is no procedural error in an arbitration hearing, and the arbitrator did not exceed his or her powers, nor prejudice the rights of a party, the courts will not vacate an arbitration award. The Court also held that a subpoena can be quashed when the witness is asked to testify to information the requesting party already knows itself. The Court also addressed awarding attorney fees and costs at both the trial and appellate level:  An unsuccessful complaint to vacate an arbitration award can still be made in good faith, particularly when there inadequate case law on the matter; and appellate costs cannot be awarded under MCL 600.2591, which only applies to the trial level, but may be awarded under MCR 7.216(C) if properly requested on a separate motion. Read More

COA finds that the No Fault Act limits work loss benefits to a specified income level, not a specified income loss.

In Agnone v. Home-Owners Insurance Co., No. 320196, the Michigan Court of Appeals held that the statutory limit on work loss benefits in MCL 500.3107(1)(b) applies to an injured person’s total combined income following an accident in addition to the work loss benefit.  If the income an injured person actually earns for work performed during the relevant period after an accident exceeds the statutory maximum monthly benefit, the work loss benefit is reduced to zero. Read More

COA: Michigan’s Child Custody Act allows third-party custodians to rebut the parental presumption

In Howard v. Howard, No. 323124, the Court of Appeals held that in custody disputes initiated by natural parents, Michigan’s Child Custody Act allows third-party custodians to contest a natural parent’s claim that awarding custody to the natural parent serves a child’s best interests.  Therefore, the Court of Appeals affirmed the trial court’s order granting custody to a third-party custodian. Read More

COA reaffirms that employees who file for disability benefits must present certified statements of disability

In Bowden v. Gannaway, No. 319047, the Court of Appeals held that, when applying for non-duty disability retirement benefits, an employee must present a certified writing that the employee is totally and permanently disabled; even if that employee filed for benefits before the decision in Polania v. State Employees’ Retirement System, 299 Mich. App. 322 (Mich. Ct. App. 2013). Therefore, the Court of Appeals affirmed the trial court’s order granting summary disposition to defendant Gannaway because Gannaway’s failure to file an appeal with the Office of Retirement Services (ORS) in a timely manner was not the proximate cause of Bowden’s losing appeal for disability benefits. Read More

COA upholds court’s right to order child support for high school students, even after age 18

In Lee v. Smith, No. 320123, the Court of Appeals affirmed an order for child support payments under MCL 552.605b(2), which allows a trial court to order payments for children over the age of majority who are enrolled in high school full-time and have not yet reached the age of 19 years and 6 months.  While limiting language in Subsection (5) of the act could be interpreted as requiring parental agreement before such payments may be ordered, the court held that when reading the act as a whole, the legislature’s clearly expressed intent was to authorize courts to award payments for children between the ages of 18 – 19 ½ who were still attending high school. Read More
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