venue instruction in Michigan

2018A. VOLUNTARY MANSLAUGHTER INSTRUCTION “A defendant in a criminal trial is entitled to have a properly instructed jury consider the evidence against him or her.”42 A court is only permitted to instruct on necessarily included lesser offenses, not cognate lesser offenses.43 “[A] requested instruction on a necessarily included lesser offense is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence 40 People v Pinkney, 316 Mich App 450, 470 ; 891 NW2d 891 (2016). 41 People v Car

2018A. VOLUNTARY MANSLAUGHTER INSTRUCTION “A defendant in a criminal trial is entitled to have a properly instructed jury consider the evidence against him or her.”42 A court is only permitted to instruct on necessarily included lesser offenses, not cognate lesser offenses.43 “[A] requested instruction on a necessarily included lesser offense is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence 40 People v Pinkney, 316 Mich App 450, 470 ; 891 NW2d 891 (2016). 41 People v Car

2018A. VOLUNTARY MANSLAUGHTER INSTRUCTION “A defendant in a criminal trial is entitled to have a properly instructed jury consider the evidence against him or her.”42 A court is only permitted to instruct on necessarily included lesser offenses, not cognate lesser offenses.43 “[A] requested instruction on a necessarily included lesser offense is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence 40 People v Pinkney, 316 Mich App 450, 470 ; 891 NW2d 891 (2016). 41 People v Car

2018A. VOLUNTARY MANSLAUGHTER INSTRUCTION “A defendant in a criminal trial is entitled to have a properly instructed jury consider the evidence against him or her.”42 A court is only permitted to instruct on necessarily included lesser offenses, not cognate lesser offenses.43 “[A] requested instruction on a necessarily included lesser offense is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence 40 People v Pinkney, 316 Mich App 450, 470 ; 891 NW2d 891 (2016). 41 People v Car

2018A. VOLUNTARY MANSLAUGHTER INSTRUCTION “A defendant in a criminal trial is entitled to have a properly instructed jury consider the evidence against him or her.”42 A court is only permitted to instruct on necessarily included lesser offenses, not cognate lesser offenses.43 “[A] requested instruction on a necessarily included lesser offense is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence 40 People v Pinkney, 316 Mich App 450, 470 ; 891 NW2d 891 (2016). 41 People v Car

2018A. VOLUNTARY MANSLAUGHTER INSTRUCTION “A defendant in a criminal trial is entitled to have a properly instructed jury consider the evidence against him or her.”42 A court is only permitted to instruct on necessarily included lesser offenses, not cognate lesser offenses.43 “[A] requested instruction on a necessarily included lesser offense is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence 40 People v Pinkney, 316 Mich App 450, 470 ; 891 NW2d 891 (2016). 41 People v Car

2018A. VOLUNTARY MANSLAUGHTER INSTRUCTION “A defendant in a criminal trial is entitled to have a properly instructed jury consider the evidence against him or her.”42 A court is only permitted to instruct on necessarily included lesser offenses, not cognate lesser offenses.43 “[A] requested instruction on a necessarily included lesser offense is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence 40 People v Pinkney, 316 Mich App 450, 470 ; 891 NW2d 891 (2016). 41 People v Car

2018A. VOLUNTARY MANSLAUGHTER INSTRUCTION “A defendant in a criminal trial is entitled to have a properly instructed jury consider the evidence against him or her.”42 A court is only permitted to instruct on necessarily included lesser offenses, not cognate lesser offenses.43 “[A] requested instruction on a necessarily included lesser offense is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence 40 People v Pinkney, 316 Mich App 450, 470 ; 891 NW2d 891 (2016). 41 People v Car

2023First, the evidence presented demonstrates defendant “purposely availed himself of the privilege of conducting activities in Michigan, thus invoking the benefits and protections of this state’s laws[,]” Oberlies, 246 Mich App at 433 , by including the venue clause in the agreement he signed in his professional capacity as the sole owner of Semper Fi Services, Inc. Second, this cause of action arose from defendant’s activities in the state—an arbitration award stemming from the agreement, which, as discussed, identified Ottawa County, Michigan, as the sole venue for dispute resolution.

2023Third, as noted earlier, defendant had various activities which were “substantially connected with Michigan[.]” Id.

2017In People v Plunkett, 485 Mich 50, 60 ; 780 NW2d 280 (2010), our Supreme Court explained that [i]t is clear from the plain language of the statute that MCL 750.317a provides an additional punishment for persons who “deliver[ ]” a controlled substance in violation of MCL 333.7401 when that substance is subsequently consumed by “any . . . person” and it causes that person’s death.

2017In People v Plunkett, 485 Mich 50, 60 ; 780 NW2d 280 (2010), our Supreme Court explained that [i]t is clear from the plain language of the statute that MCL 750.317a provides an additional punishment for persons who “deliver[ ]” a controlled substance in violation of MCL 333.7401 when that substance is subsequently consumed by “any . . . person” and it causes that person’s death.

2015Venue is not an element of the crime, Gayheart, 285 Mich App at 216 , and thus the venue instruction was not an element of the charge of second-degree CSC as read to the jury.

2015However, any claim of instructional error was waived by defense counsel’s pronouncement that he was “satisfied” with the trial court’s final instructions.3 People v Carter, 462 Mich 206, 219-220 ; 612 NW2d 144 (2000); People v Chapo, 283 Mich App 360, 372-373 ; 770 NW2d 68 (2009).

2015However, any claim of instructional error was waived by defense counsel’s pronouncement that he was “satisfied” with the trial court’s final instructions.3 People v Carter, 462 Mich 206, 219-220 ; 612 NW2d 144 (2000); People v Chapo, 283 Mich App 360, 372-373 ; 770 NW2d 68 (2009).

2010In order to apply the harmless error analysis of MCL 769.26, we must first examine whether statutory venue error is a 24 People v Lukity, 460 Mich 484, 495-496 ; 596 NW2d 607 (1999). 25 People v Whittaker, 465 Mich 422, 427 ; 635 NW2d 687 (2001). 26 People v Anderson (After Remand), 446 Mich 392 ; 521 NW2d 538 (1994). 27 People v Miller, 482 Mich 540, 556 ; 759 NW2d 850 (2008). 17 constitutional error in order to determine the applicable standard of review.

2010In order to apply the harmless error analysis of MCL 769.26, we must first examine whether statutory venue error is a 24 People v Lukity, 460 Mich 484, 495-496 ; 596 NW2d 607 (1999). 25 People v Whittaker, 465 Mich 422, 427 ; 635 NW2d 687 (2001). 26 People v Anderson (After Remand), 446 Mich 392 ; 521 NW2d 538 (1994). 27 People v Miller, 482 Mich 540, 556 ; 759 NW2d 850 (2008). 17 constitutional error in order to determine the applicable standard of review.

2010In order to apply the harmless error analysis of MCL 769.26, we must first examine whether statutory venue error is a 24 People v Lukity, 460 Mich 484, 495-496 ; 596 NW2d 607 (1999). 25 People v Whittaker, 465 Mich 422, 427 ; 635 NW2d 687 (2001). 26 People v Anderson (After Remand), 446 Mich 392 ; 521 NW2d 538 (1994). 27 People v Miller, 482 Mich 540, 556 ; 759 NW2d 850 (2008). 17 constitutional error in order to determine the applicable standard of review.

2010In order to apply the harmless error analysis of MCL 769.26, we must first examine whether statutory venue error is a 24 People v Lukity, 460 Mich 484, 495-496 ; 596 NW2d 607 (1999). 25 People v Whittaker, 465 Mich 422, 427 ; 635 NW2d 687 (2001). 26 People v Anderson (After Remand), 446 Mich 392 ; 521 NW2d 538 (1994). 27 People v Miller, 482 Mich 540, 556 ; 759 NW2d 850 (2008). 17 constitutional error in order to determine the applicable standard of review.

2010In order to apply the harmless error analysis of MCL 769.26, we must first examine whether statutory venue error is a 24 People v Lukity, 460 Mich 484, 495-496 ; 596 NW2d 607 (1999). 25 People v Whittaker, 465 Mich 422, 427 ; 635 NW2d 687 (2001). 26 People v Anderson (After Remand), 446 Mich 392 ; 521 NW2d 538 (1994). 27 People v Miller, 482 Mich 540, 556 ; 759 NW2d 850 (2008). 17 constitutional error in order to determine the applicable standard of review.

2010In order to apply the harmless error analysis of MCL 769.26, we must first examine whether statutory venue error is a 24 People v Lukity, 460 Mich 484, 495-496 ; 596 NW2d 607 (1999). 25 People v Whittaker, 465 Mich 422, 427 ; 635 NW2d 687 (2001). 26 People v Anderson (After Remand), 446 Mich 392 ; 521 NW2d 538 (1994). 27 People v Miller, 482 Mich 540, 556 ; 759 NW2d 850 (2008). 17 constitutional error in order to determine the applicable standard of review.

2010Indeed, it is hard to imagine a scenario that would more convincingly meet the “more 15 See CJI2d 3.10. 16 I agree with Justice CAVANAGH’s observation that the majority also neglects the rule that “legislative amendment of the common law is not lightly presumed.” Post at ___ (CAVANAGH, J., dissenting) (quotation marks and citations omitted). 17 People v Francisco, 474 Mich 82 , 92 n 10; 711 NW2d 44 (2006). 18 I continue to believe that this Court’s test for preserved nonconstitutional error established in People v Lukity, 460 Mich 484 ; 596 NW2d 607 (1999), is wrong.

2010Indeed, it is hard to imagine a scenario that would more convincingly meet the “more 15 See CJI2d 3.10. 16 I agree with Justice CAVANAGH’s observation that the majority also neglects the rule that “legislative amendment of the common law is not lightly presumed.” Post at ___ (CAVANAGH, J., dissenting) (quotation marks and citations omitted). 17 People v Francisco, 474 Mich 82 , 92 n 10; 711 NW2d 44 (2006). 18 I continue to believe that this Court’s test for preserved nonconstitutional error established in People v Lukity, 460 Mich 484 ; 596 NW2d 607 (1999), is wrong.

2010In order to apply the harmless error analysis of MCL 769.26, we must first examine whether statutory venue error is a 24 People v Lukity, 460 Mich 484, 495-496 ; 596 NW2d 607 (1999). 25 People v Whittaker, 465 Mich 422, 427 ; 635 NW2d 687 (2001). 26 People v Anderson (After Remand), 446 Mich 392 ; 521 NW2d 538 (1994). 27 People v Miller, 482 Mich 540, 556 ; 759 NW2d 850 (2008). 17 constitutional error in order to determine the applicable standard of review.

2010In order to apply the harmless error analysis of MCL 769.26, we must first examine whether statutory venue error is a 24 People v Lukity, 460 Mich 484, 495-496 ; 596 NW2d 607 (1999). 25 People v Whittaker, 465 Mich 422, 427 ; 635 NW2d 687 (2001). 26 People v Anderson (After Remand), 446 Mich 392 ; 521 NW2d 538 (1994). 27 People v Miller, 482 Mich 540, 556 ; 759 NW2d 850 (2008). 17 constitutional error in order to determine the applicable standard of review.

1999Id.

1987MCR 2.221(C). *779 In addition, although one panel, Davis v Great American Ins Co, 136 Mich App 764 ; 357 NW2d 761 (1984), held that a venue claim is timely filed if improper venue is pleaded as a defense in a defendant’s answer, we decline to follow that panel’s interpretation of GCR 1963, 401, now MCR 2.221(A).

1987MCR 2.221(C). *779 In addition, although one panel, Davis v Great American Ins Co, 136 Mich App 764 ; 357 NW2d 761 (1984), held that a venue claim is timely filed if improper venue is pleaded as a defense in a defendant’s answer, we decline to follow that panel’s interpretation of GCR 1963, 401, now MCR 2.221(A).

1987See MCL 767.45; MSA 28.985 and People v Belanger, 120 Mich App 752 ; 327 NW2d 554 (1982).

1987See MCL 767.45; MSA 28.985 and People v Belanger, 120 Mich App 752 ; 327 NW2d 554 (1982).