offense defense in Michigan

2021“Evidence need not be directed at an element of the offense or a defense to be material.” People v McGhee, 268 Mich App 600, 637 ; 709 NW2d 595 (2005).

2021“Evidence need not be directed at an element of the offense or a defense to be material.” People v McGhee, 268 Mich App 600, 637 ; 709 NW2d 595 (2005).

2018However, “[e]vidence need not be directed at an element of the offense or a defense to be material.” People v McGhee, 268 Mich App 600, 637 ; 709 NW2d 595 (2005). “[E]vidence is relevant when it affects the credibility of the victim and when it affects the credibility of witnesses who enhance the victim’s credibility.” People v King, 297 Mich App 465, 476-477 ; 824 NW2d 258 (2012). “[T]he jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence that might bear on the accuracy and truth of a witness’ testimony.” People v Layher, 464 Mich 756, 765

2018However, “[e]vidence need not be directed at an element of the offense or a defense to be material.” People v McGhee, 268 Mich App 600, 637 ; 709 NW2d 595 (2005). “[E]vidence is relevant when it affects the credibility of the victim and when it affects the credibility of witnesses who enhance the victim’s credibility.” People v King, 297 Mich App 465, 476-477 ; 824 NW2d 258 (2012). “[T]he jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence that might bear on the accuracy and truth of a witness’ testimony.” People v Layher, 464 Mich 756, 765

2016To determine if a defendant’s convictions and sentences amount to multiple punishments for a single offense in violation of double jeopardy principles, we rely on the “same-elements test.” This test was originally elucidated in Blockburger v United States, 284 US 299, 304 ; 52 S Ct 180 ; 76 L Ed 306 (1932).

2016To determine if a defendant’s convictions and sentences amount to multiple punishments for a single offense in violation of double jeopardy principles, we rely on the “same-elements test.” This test was originally elucidated in Blockburger v United States, 284 US 299, 304 ; 52 S Ct 180 ; 76 L Ed 306 (1932).

2000People v Burden, 395 Mich 462, 467 ; 236 NW2d 505 (1975) (opinion by T.G.

2000People v Burden, 395 Mich 462, 467 ; 236 NW2d 505 (1975) (opinion by T.G.

1999In People v Johnson, 86 Mich 175, 177 ; 48 NW 870 (1891), the Court stated: In general terms the offense is a violation of public order, a disturbance of the public tranquillity, by any act or conduct inciting to violence, or tending to provoke or excite others to break the peace.

1999In People v Johnson, 86 Mich 175, 177 ; 48 NW 870 (1891), the Court stated: In general terms the offense is a violation of public order, a disturbance of the public tranquillity, by any act or conduct inciting to violence, or tending to provoke or excite others to break the peace.

2026As previously discussed, when departing from the sentencing guidelines, a trial court may consider the seriousness of the offense and factors that were not adequately considered by the guidelines, Walden, 319 Mich App at 352-353, including “the nature of a plea bargain and the charges that were dismissed in exchange for the plea for which the court is sentencing,” Coulter, 205 Mich App at 456 .

2021“Aggravated stalking consists of the crime of ‘stalking,’ MCL 750.411h(1)(d), and the presence of an aggravating circumstance specified in MCL 750.411i(2).” People v Threatt, 254 Mich App 504, 505 ; 657 NW2d 819 (2002).

2021“Aggravated stalking consists of the crime of ‘stalking,’ MCL 750.411h(1)(d), and the presence of an aggravating circumstance specified in MCL 750.411i(2).” People v Threatt, 254 Mich App 504, 505 ; 657 NW2d 819 (2002).

2021By stating that the PPOs “are a necessary element to establish aggravated stalking,” Oehmke acknowledged that plaintiffs were focusing on MCL 750.411i(2)(a). 6 We emphasize that plaintiffs were and are not seeking to add a separate count of “stalking” but specifically refer to an added count of “aggravated stalking.” 7 Oehmke acknowledged at his deposition that the PPOs had not been served at the time of the pickup truck incident. -5- abuse of discretion occurs when the trial court chooses an outcome falling outside the range of principled outcomes.” Edry v Adelman, 486 Mich 634, 639 ; 786 NW2

2021By stating that the PPOs “are a necessary element to establish aggravated stalking,” Oehmke acknowledged that plaintiffs were focusing on MCL 750.411i(2)(a). 6 We emphasize that plaintiffs were and are not seeking to add a separate count of “stalking” but specifically refer to an added count of “aggravated stalking.” 7 Oehmke acknowledged at his deposition that the PPOs had not been served at the time of the pickup truck incident. -5- abuse of discretion occurs when the trial court chooses an outcome falling outside the range of principled outcomes.” Edry v Adelman, 486 Mich 634, 639 ; 786 NW2

2014In People v Ream, 481 Mich 223 ; 750 NW2d 536 (2008), our Supreme Court held that a defendant does not receive multiple punishments for the same offense in violation of the double jeopardy clauses when “each offense has an element that the other does not.” Id. at 240.

2013People v Garcia, 448 Mich 442, 448-449 ; 531 NW2d 683 (1995); Green v United States, 355 US 184, 190 ; 78 S Ct 221 ; 2 L Ed 2d 199 (1957) (holding that a retrial on first-degree murder charges after the defendant’s second-degree murder conviction had been reversed placed the defendant in jeopardy twice for the same offense in violation of the constitution when the defendant had been charged with both first- and second-degree murder and the jury had found the defendant guilty of second-degree murder and its verdict had been silent with regard to the first-degree murder charge).

2013People v Garcia, 448 Mich 442, 448-449 ; 531 NW2d 683 (1995); Green v United States, 355 US 184, 190 ; 78 S Ct 221 ; 2 L Ed 2d 199 (1957) (holding that a retrial on first-degree murder charges after the defendant’s second-degree murder conviction had been reversed placed the defendant in jeopardy twice for the same offense in violation of the constitution when the defendant had been charged with both first- and second-degree murder and the jury had found the defendant guilty of second-degree murder and its verdict had been silent with regard to the first-degree murder charge).

2013People v Garcia, 448 Mich 442, 448-449 ; 531 NW2d 683 (1995); Green v United States, 355 US 184, 190 ; 78 S Ct 221 ; 2 L Ed 2d 199 (1957) (holding that a retrial on first-degree murder charges after the defendant’s second-degree murder conviction had been reversed placed the defendant in jeopardy twice for the same offense in violation of the constitution when the defendant had been charged with both first- and second-degree murder and the jury had found the defendant guilty of second-degree murder and its verdict had been silent with regard to the first-degree murder charge).

2013People v Garcia, 448 Mich 442, 448-449 ; 531 NW2d 683 (1995); Green v United States, 355 US 184, 190 ; 78 S Ct 221 ; 2 L Ed 2d 199 (1957) (holding that a retrial on first-degree murder charges after the defendant’s second-degree murder conviction had been reversed placed the defendant in jeopardy twice for the same offense in violation of the constitution when the defendant had been charged with both first- and second-degree murder and the jury had found the defendant guilty of second-degree murder and its verdict had been silent with regard to the first-degree murder charge).

2008The Court further stated that, “[a]s in Meyers , we recognize that conduct that is nonsexual in nature may violate MCL 752.795,” but that it was bound to follow the “Meyers holding that whether an offense is ‘by its nature ... a sexual offense’ within the meaning of MCL 28.722(e) (xi) depends on the defendant’s conduct that formed the basis for the conviction, regardless of the fact that the statute could be applied to nonsexual behavior in other circumstances.” Golba, supra at 610-611 , citing Meyers, supra at 648-649 . *533 The Golba Court found support for the Meyers holding in the Code of

2008The Court reasoned that “[i]f the sentencing court’s ‘determination’ could be made as a matter of law only from the language of the criminal statute at issue, there would be little reason for including the requirement that the sentencing court ‘include the basis for that determination on the record,’ ” and, therefore, that the Legislature must have “intended sentencing courts to make findings of fact regarding the underlying conduct in individual cases to support the determination that the offense ‘by its nature constitutes a sexual offense against an individual who is less than 18 years of ag

2006Mills, supra at 68 .

2002Here, therefore, the trial court committed plain legal error in applying OV 16 to this offense in violation of M.C.L. § 777.22(1). [5] Regardless whether we characterize this as a "misscoring" [6] issue under M.C.L. § 777.46 or a violation of M.C.L. § 777.22(1), we hold that defendant is entitled to resentencing on the basis of the plain error doctrine of Carines : *804 To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. [ United States v.

2002Here, therefore, the trial court committed plain legal error in applying OV 16 to this offense in violation of M.C.L. § 777.22(1). [5] Regardless whether we characterize this as a "misscoring" [6] issue under M.C.L. § 777.46 or a violation of M.C.L. § 777.22(1), we hold that defendant is entitled to resentencing on the basis of the plain error doctrine of Carines : *804 To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. [ United States v.

1995We retain no further jurisdiction. 1 The complaint alleged that defendant "did engage in a wilfull [sic] course of conduct involving repeated or continuous harassment of [the victim], the conduct being such that would cause a reasonable person to feel threatened and/or harrassed [sic], said conduct actually causing [the victim] to feel threatened and/or harrassed [sic], and the actions constituting the offense are in violation of a restraining order the defendant has received actual notice of, the course of conduct included the making of 1 or more credible threats against [the victim]; contrar

1995Fong Foo v United States, 369 US 141, 143 ; 82 S Ct 671 ; 7 L Ed 2d 629 (1962) (court’s entry of judgments of acquittal after determining, among other things, that government’s witnesses were not credible, although erroneous, barred a retrial).

1995Fong Foo v United States, 369 US 141, 143 ; 82 S Ct 671 ; 7 L Ed 2d 629 (1962) (court’s entry of judgments of acquittal after determining, among other things, that government’s witnesses were not credible, although erroneous, barred a retrial).

1993Failure to give such an instruction is an abuse of discretion if a reasonable person would find no justification or excuse for the ruling made. *277 Further, the error "cannot be held harmless [where] the jury rejected the primary charge and found defendant guilty of the least serious charge it was instructed on.” Taylor, supra at 63 ; see also People v Beach, 429 Mich 450, 490-494 ; 418 NW2d 861 (1988) (error is harmless if the jury rejects a lesser included offense greater than the offense whose instruction was refused).

1990While Winship and Specht establish that a Legislature is not wholly free to define elements of an offense as factors bearing only on punishment, it is clear that the limitation is a narrow exception to the deference accorded a state's administration of justice. *243 Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society's interests against those of the accused have been left to the legislative branch. [ Patterson v New York, supra, p 210.] In McMillan, supra, p 86 , the Court recently has reaffirmed the state's abili

1990While Winship and Specht establish that a Legislature is not wholly free to define elements of an offense as factors bearing only on punishment, it is clear that the limitation is a narrow exception to the deference accorded a state's administration of justice. *243 Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society's interests against those of the accused have been left to the legislative branch. [ Patterson v New York, supra, p 210.] In McMillan, supra, p 86 , the Court recently has reaffirmed the state's abili

1985People v Pearson, 404 Mich 698 ; 273 NW2d 856 (1979).

1985People v Pearson, 404 Mich 698 ; 273 NW2d 856 (1979).

1977People v Liggett, 378 Mich 706 ; 148 NW2d 784 (1967), People v Townes, 391 Mich 578 ; 218 NW2d 136 (1974).

1977People v Liggett, 378 Mich 706 ; 148 NW2d 784 (1967), People v Townes, 391 Mich 578 ; 218 NW2d 136 (1974).

1977People v Liggett, 378 Mich 706 ; 148 NW2d 784 (1967), People v Townes, 391 Mich 578 ; 218 NW2d 136 (1974).

1977People v Liggett, 378 Mich 706 ; 148 NW2d 784 (1967), People v Townes, 391 Mich 578 ; 218 NW2d 136 (1974).

1971This Court is cognizant of the decision in the case of People v. MacPherson (1949), 323 Mich 438 , requiring the court to include all elements of the offense in its instruction whether requested or not.