People of Michigan v. Mary Ann Stafford ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 24, 2017
Plaintiff-Appellee,
v No. 331835
Wayne Circuit Court
CLIFFORD LEWIS STAFFORD, LC No. 15-001184-01-FH
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 332007
Wayne Circuit Court
MARY ANN STAFFORD, LC No. 15-006158-01-FH
Defendant-Appellant.
Before: SAAD, P.J., and SERVITTO and GADOLA, JJ.
PER CURIAM.
Defendant Clifford Stafford (Clifford) was convicted by a jury of obstruction of justice,
MCL 750.505, and acquitted of a false pretenses charge; defendant Mary Ann Stafford (Mary)
was convicted by the same jury of false pretenses greater than $20,000, MCL 750.218, and
obstruction of justice, MCL 750.505. Clifford was subsequently sentenced to 18 months’
probation, while Mary was sentenced to 1 to 10 years’ imprisonment for the false pretenses
conviction and one to five years’ imprisonment for the obstruction of justice conviction. Clifford
was additionally ordered to pay a fine, fees, and costs totaling $1,678 and to complete 200 hours
of community service; Mary was ordered to pay restitution, fees, and costs totaling $75,198.
Both defendants now appeal as of right. We affirm.
I. FACTS AND PROCEDURAL HISTORY
Defendants were charged with false pretenses based on their sale of a home at 13236
Nautica in Van Buren Township. The prosecution alleged that defendants purchased the
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property from the owners by having two friends, Emmett and Trenise Wyldon, obtain a mortgage
loan for the property for approximately $375,000 based on the purported purchase of the
property from defendants. Defendants then used the proceeds from the Wyldon’s mortgage loan
to purchase the property from the actual owners for approximately $312,000. That is,
defendant’s “sold” the property to the Wyldons before they had actually purchased the property
from the owners, and then used the mortgage money the Wyldons obtained to pay the original
owners for the property. Defendants and the Wyldons then pocketed the difference between the
purchase price paid to the original owners and the amount of the mortgage loan payout.
Defendants were charged with obstruction of justice for their subsequent efforts to blame
the property purchase on other unnamed people. The Nautica property went into foreclosure
because the Wyldons failed to make required mortgage payments. Defendants then instituted a
quiet title lawsuit in an attempt to “recover” the property. In the course of this lawsuit, they filed
affidavits in which they tried to obscure their involvement in the fraudulent property
transactions, indicating that they had not participated in the closing(s) that occurred on December
5, 2007. The prosecution further alleged that defendants pursued a false criminal complaint in an
effort to obscure their involvement in the fraudulent transactions. Defendants claimed that, to
the extent a fraudulent sale had taken place, they had not been involved and other individuals—
primarily Trenise Wyldon—had committed the fraud.
Admitted at trial were two warranty deeds, both dated December 5, 2007, that showed
that the Nautica property was purchased by Private Consumer Consulting Services (PCCS) from
the original owners for $312,500, and that the property was then sold to Trenise Wyldon by
Mary Ann Stafford, doing business as PCCS, for $395,000. Among the additional documents
admitted at trial were: an application by Trenise Wyldon for a mortgage on the Nautica property
in the amount of $375,250, dated December 3, 2007; a mortgage for that property issued by
Wells Fargo in the amount of $375,250 with the Wyldons as the borrowers and dated December
5, 2007; a settlement statement dated December 5, 2007, prepared by Reliant Title for the closing
on the Nautica property listing Trenise Wyldon as the buyer and Mary (d/b/a PCCS) as the seller,
with the sales price shown as $395,000, the gross sales amount as $408,390.40, the mortgage
loan as $375,250, an entry showing a “contribution” of $10,000 to the purchase, and an entry
showing that Trenise was to produce $23,140.93; a document dated December 5, 2007, showing
that PCCS provided $311,937 in buyer funds for the property;1 and a sheriff’s deed dated June
24, 2009, for the Nautica property showing the grantee as Wells Fargo and the borrower as the
Wyldons. Additionally, a packet of documents was admitted containing the banking records for
PCCS, which included a deposit ticket with Mary’s name in the amount of $44,195.07 dated
December 5, 2007; a check corresponding to the deposit ticket made payable to PCCS from
Reliant Title and endorsed by Mary; and a check drawn by Mary on December 14, 2007, in the
amount of $7,500 made payable to Trenise, along with a corresponding withdrawal ticket. These
documents were offered in support of the false pretenses charges.
1
A cancelled check from Reliant Title to PCCS for $311,937 that was endorsed by Mary was
also admitted.
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In support of the obstruction of justice charges, documents were admitted showing that a
quiet title action had been instituted by PCCS with regard to the Nautica property. Also admitted
were sworn affidavits from Clifford and Mary that had been filed with the quiet title complaint, a
copy of the PCCS registration as a limited liability company (LLC) dated February 14, 2008,
showing Clifford as the PCCS resident agent, and three written statements made by defendants to
the Wayne County Prosecutor’s Office Mortgage and Deed Fraud Task Force: one statement
made by Clifford, dated March 11, 2011, and two statements made by Mary, dated March 11,
2011, and June 20, 2011, respectively.
II. EXPERT WITNESS TESTIMONY
Clifford first argues that the trial court abused its discretion by refusing to allow his
expert, Richard Woonton, to testify that, in his opinion, a fraud was committed by someone, but
it was possible that defendants could have been unaware of the fraud. Clifford claims that he
was deprived of his right to present a defense by the court’s limitation of his expert’s testimony.
This claim is without merit.
Defendants moved before trial to qualify Woonton as an expert witness and the court
qualified him as an expert in mortgage procedures. The trial court ruled, however, that Woonton
could not testify regarding his opinion of whether someone could have committed fraud without
defendants’ knowledge. The issue regarding Woonton’s qualifications is therefore preserved for
appellate review. People v Connor, 209 Mich App 419, 422; 531 NW2d 734 (1995). However,
Clifford never argued that he was deprived of his right to present a defense by the trial court’s
decision to limit Woonton’s testimony. Therefore, that aspect of this issue is not preserved.
People v Buie (On Remand), 298 Mich App 50, 70-71; 825 NW2d 361 (2012) (defendant
objected on one ground, but failed to object on two other grounds so those claims were not
preserved). “[A] trial court’s decision to admit or exclude expert testimony is reviewed for an
abuse of discretion.” People v Dobek, 274 Mich App 58, 93; 732 NW2d 546 (2007). “The trial
court abuses its discretion when its decision falls outside the range of principled outcomes or
when it erroneously interprets or applies the law.” People v Lane, 308 Mich App 38, 51; 862
NW2d 446 (2014). We review unpreserved constitutional claims for plain error affecting
substantial rights. People v Carines, 460 Mich 750, 752-753, 764; 597 NW2d 130 (1999).
At a pretrial hearing, Woonton described his background in the banking industry. He
explained how mortgage closings operate and testified that he had attended mortgage closings.
He admitted that he had not worked for Wells Fargo, but he insisted that he was familiar with
their policies and procedures. He admitted that he had never been a mortgage fraud investigator,
although he had worked with the F.B.I. fraud investigation unit. Based on his statements under
oath, Woonton’s testimony could be summarized as follows: his review of the documents and
his knowledge of proper mortgage procedures led him to believe that people other than the
Staffords arranged this fraud, and he did not think that the Staffords were involved because they
did not get a lot of money out of the fraud and they did not keep all of the money they received
during the transaction for themselves, but instead paid some of it out to other people. The trial
court ruled that it would allow Woonton to testify as an expert to explain the transaction that
took place, but would not permit him to address “whether or not the Staffords committed the
crimes they’re charged with” or “whether or not anyone else in the scene committed fraud.”
Clifford argues that the trial court abused its discretion by limiting Woonton’s testimony.
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MRE 702 set forth the standards applicable to expert testimony and states the following:
If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise if
(1) the testimony is based on sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
MRE 704 provides that “[t]estimony in the form of an opinion or inference otherwise admissible
is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” The
trial court performs a “gatekeeper” role by making the initial decision whether a proposed expert
witness is qualified to offer testimony and whether that testimony would be reliable. People v
Bynum, 496 Mich 610, 625; 852 NW2d 570 (2014). “As the rule itself makes clear, however,
such testimony must be ‘otherwise admissible,’ thereby implicating, inter alia, the ‘helpfulness’
requirement.” People v Smith, 425 Mich 98, 107; 387 NW2d 814 (1986).
Clifford has failed to explain how Woonton’s excluded testimony, which he essentially
concedes amounted to a speculative belief based on the documents he was shown, was a proper
opinion for an expert witness to offer or how it was relevant to the charges against defendants.
As the trial court reasoned, there is simply nothing about the witness’s proposed testimony that
required expert testimony. Moreover, when he testified at trial, it turned out that Woonton had
not been given all the relevant documents to review. Woonton also admitted he was not present
at the closing on December 5, 2007. Therefore, Woonton’s proposed testimony on the ultimate
issue of whether defendants participated in the fraud was not based on “sufficient facts or data.”
MRE 702. Nor did defendant show that Woonton “applied the principles and methods reliably to
the facts of the case.” Id. In fact, it does not appear from his testimony that Woonton applied
any principles or methods to the facts; he simply decided that he could not believe that
defendants had participated in the fraud because they did not profit enough. Accordingly,
Woonton’s testimony did not satisfy the basic requirements of MRE 702. Furthermore,
Woonton’s excluded testimony in essence amounted to an opinion regarding whether the
Staffords committed fraud. An expert’s opinion may not extend to legal conclusions, and an
expert witness is not permitted to tell the jury how to decide a case. See Carson Fischer Potts &
Hyman v Hyman, 220 Mich App 116, 122-123; 559 NW2d 54 (1996). For these reasons, the
trial court did not abuse its discretion by limiting Woonton’s testimony.
With regard to Clifford’s claim on appeal that exclusion of Woonton’s testimony
deprived him of his right to present a defense, he has not established plain error. Carines, 460
Mich at 764. Clifford chose to testify and therefore presented his defense that he was not present
at the closing on December 5, 2007, and was not involved in any fraud that might have occurred.
Defendant argues that his expert should have been permitted “to testify that the fraud that
occurred on December 5, 2007 could have been perpetrated without the knowledge or presence
of [Clifford].” However, as Woonton inherently conceded, he was not in a position to offer this
testimony because he was not present at the closing and had not reviewed all the relevant
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documents. Woonton’s proposed testimony also did not satisfy the requirements of MRE 702.
Therefore, defendant was not deprived by the court’s ruling of the right to present a defense.
III. DENIAL OF DIRECTED VERDICT MOTION
Clifford next argues that the trial court erred by denying his motion for a directed verdict
on the obstruction of justice count, which he made at the conclusion of the prosecution’s case.
“When reviewing a trial court’s decision on a motion for a directed verdict, this Court reviews
the record de novo to determine whether the evidence presented by the prosecutor, viewed in the
light most favorable to the prosecutor, could persuade a rational trier of fact that the essential
elements of the crime charged were proved beyond a reasonable doubt.” People v Aldrich, 246
Mich App 101, 122; 631 NW2d 67 (2001).
In People v Thomas, 438 Mich 448, 455-458; 475 NW2d 288 (1991), our Supreme Court
stated the following:
Obstruction of justice is generally understood as an interference with the
orderly administration of justice. This Court, in People v Ormsby, 310 Mich 291,
300; 17 NW2d 187 (1945), defined obstruction of justice as “ ‘impeding or
obstructing those who seek justice in a court, or those who have duties or powers
of administering justice therein.’ ” In People v Coleman, 350 Mich 268, 274; 86
NW2d 281 (1957), this Court stated that obstruction of justice is “committed
when the effort is made to thwart or impede the administration of justice.” While
these definitions adequately summarize the essential concept of obstruction of
justice, we believe they lack the specificity necessary to sustain a criminal
conviction.
* * *
Like breach of the peace, at common law obstruction of justice was not a
single offense but a category of offenses that interfered with public justice.
Blackstone discusses twenty-two separate offenses under the heading “Offences
against Public Justice.” If we now simply define obstruction of justice as an
interference with the orderly administration of justice, we would fail to recognize
or distinguish it as a category of separate offenses. We find no basis for this at
common law.
To warrant the charge of common-law obstruction of justice, defendant’s
conduct must have been recognized as one of the offenses falling within the
category “obstruction of justice.” [Footnotes omitted.]
In People v Vallance, 216 Mich App 415, 418-419; 548 NW2d 718 (1996), this Court interpreted
our Supreme Court’s decision in Thomas as follows:
The problem presented by the Thomas opinion is the proper interpretation
of its discussion regarding obstruction of justice. Did Thomas limit the scope of
offenses constituting “obstruction of justice” to the twenty-two offenses listed by
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Blackstone? Or was the Court merely referring to Blackstone’s list to illustrate
the point that, at common law, “obstruction of justice” was not a single offense
but rather a category of offenses?
We find nothing in the Thomas analysis to suggest that offenses
recognized at common law as obstruction of justice are, nonetheless, not to be so
considered if they are not included in the Blackstone list. Accordingly, we
conclude that the Supreme Court’s reference in Thomas to Blackstone was merely
to illustrate the point that at common law, “obstruction of justice” is not a single
offense, but a category of offenses that interfere with public justice. A charge of
obstruction of justice was warranted if defendant’s conduct would have been
recognized as one of the many offenses falling within the rubric “obstruction of
justice” at common law. [Quotation marks and citations omitted.]
In People v Kissner, 292 Mich App 526, 540; 808 NW2d 522 (2011), this Court upheld the
defendant’s conviction of attempted obstruction of justice. Noting that this Court had previously
held in Vallance that obstruction of justice was not limited to the 22 offenses listed by
Blackstone’s Commentaries, this Court found ample evidence to support the defendant’s
conviction where the evidence established that he had filed a false motion and affidavit. Kissner,
292 Mich App at 540-541. Therefore, this Court has previously held that filing a false affidavit
in a lawsuit can constitute obstruction of justice.
Defendant lists the evidence that supports his view of the case, but ignores and fails to
discuss the prosecution’s evidence or to consider that evidence in the light most favorable to the
prosecution. Considered in the appropriate manner, the evidence established that the affidavit
Clifford filed in support of the quiet title action was false. Contrary to Clifford’s statement in his
affidavit that he “never appeared in person at the alleged closing of 12-5, 2007,” the testimony of
Avis Washington established that Clifford did personally attend that closing. Further, Clifford’s
statements in his affidavit that he never authorized the sale of the Nautica property to Trenise
Wyldon, and that he did not even know of the sale of the property to Trenise, were inconsistent
with the $44,000 check, dated December 5, 2007, which was deposited into the PCCS bank
account. Finally, Clifford sought to initiate a mortgage fraud complaint, and in connection with
that he gave a written statement to Mary Jones in which it appears that he lied when he claimed
that neither he nor Mary had attended the Nautica property closing and when he claimed that he
got $312,500 to purchase the Nautica property “[f]rom the proceeds from the Farmington Hills
purchase.” No evidence was presented to support this claim. Instead, the prosecutor’s evidence
showed that the money came from the mortgage Trenise took out on the Nautica property and
that this mortgage money was then used to purchase the property from the original owners.
Considered in a light most favorable to the prosecution, the evidence showed that
Clifford filed a false affidavit in the quiet title action and attempted to initiate a mortgage fraud
investigation based on false written statements. These acts constituted an “interference with the
orderly administration of justice . . . .” Kissner, 292 Mich App at 540. Therefore, the trial court
did not err by denying defendant’s motion for a directed verdict.
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IV. SUFFICIENCY OF THE EVIDENCE
Relatedly, Clifford argues that the prosecution failed to present sufficient evidence to
prove beyond a reasonable doubt that he obstructed justice. We disagree.
Appeals regarding the sufficiency of the evidence are reviewed de novo. In
reviewing the sufficiency of the evidence, this Court must view the evidence in
the light most favorable to the prosecution and determine whether a rational trier
of fact could find that the essential elements of the crime were proved beyond a
reasonable doubt. Juries, and not appellate courts, hear the testimony of
witnesses; therefore, we defer to the credibility assessments made by a jury. It is
for the trier of fact . . . to determine what inferences may be fairly drawn from the
evidence and to determine the weight to be accorded those inferences. The
prosecution need not negate every reasonable theory of innocence, but need only
prove the elements of the crime in the face of whatever contradictory evidence is
provided by the defendant. Circumstantial evidence and the reasonable inferences
that arise from that evidence can constitute satisfactory proof of the elements of
the crime. We resolve all conflicts in the evidence in favor of the prosecution.
[People v Henderson, 306 Mich App 1, 8-9; 854 NW2d 234 (2014) (quotation
marks and citations omitted.]
As earlier noted, a defendant’s conviction for attempted obstruction of justice can be
made out based on a defendant’s filing of a false motion and affidavit in a lawsuit. Kissner, 292
Mich App at 540. In this case, the evidence supported that Clifford filed a false affidavit and a
false written statement in the course of a quiet title lawsuit and an attempt to initiate a mortgage
fraud complaint. These actions involved “interference with the orderly administration of justice”
and thus constituted obstruction of justice. Id. Clifford relies on the Thomas decision to argue
that his actions did not constitute conduct falling within any of the offenses listed in that case
from Blackstone’s Commentaries. As we have noted, however, this Court has held that Thomas
did not limit obstruction of justice to the 22 common-law offenses listed in Blackstone’s
Commentaries. Vallance, 216 Mich App at 418-419. Moreover, in Kissner, this Court held that
attempted obstruction of justice could be established by showing that the defendant filed a false
motion and affidavit in an attempt to convince a court to grant him a new trial. Because Clifford
does not reanalyze the evidence in the context of this issue, but rather relies on Thomas as
controlling authority, his failure to cite or discuss Kissner is fatal to his claim.
In any event, the evidence is overwhelmingly sufficient to establish Clifford’s guilt of
obstruction of justice. In his affidavit, Clifford swore that (1) he never authorized anyone to
appear on his behalf at the December 5, 2007 closing relating to the sale of the Nautica property
to Trenise, (2) he never authorized the sale of that property to Trenise, and (3) he never knew of
the sale of that property to Trenise. In a written statement to Mary Jones, Clifford again claimed
that neither he nor Mary attended the closing. However, in that same document, he admitted that
PCCS was his company, that PCCS purchased the property, and that he entered into an
agreement with the Wyldons for them to purchase the Nautica property, an admission directly
contrary to his statement in his affidavit. Further, Avis Washington testified that both Clifford
and Mary attended the December 5, 2007 closing, and the evidence established that Mary signed
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numerous documents at that closing. Clifford testified that he was aware that sometime around
December 5, 2007, a $44,000 check from Reliant Title to PCCS was deposited into the PCCS
account, and he claimed that this money was used so that “[w]e paid Trenise directly either
electronically or with a money order and she would make the payments on both houses because
both of them [were] in her name.” According to Clifford, the referenced houses were the
Nautica property and a home on Country Ridge in Farmington Hills. Clifford’s own testimony
therefore established that, contrary to the assertions in his affidavit, he was aware of the sale of
the Nautica property to Trenise. Clifford also described how it was decided that Trenise should
purchase the Nautica property because she had a good credit score. This evidence established
that Clifford’s affidavit in support of the quiet title action filed by PCCS was false. This
evidence also established that he made false assertions in his written statement to Mary Jones in
order to initiate a mortgage fraud complaint against the Wyldons. Considered in a light most
favorable to the prosecution, this evidence was sufficient to prove Clifford’s guilt for obstruction
of justice beyond a reasonable doubt.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Clifford next argues that his trial counsel failed to provide effective assistance of counsel
when he failed to object to the court’s allegedly inadequate instruction concerning obstruction of
justice. To establish ineffective assistance of counsel, a defendant must show that his counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms, and that a reasonable probability exists that, without counsel’s unprofessional errors, the
outcome of the proceedings would have been different. People v Russell, 297 Mich App 707,
715-716; 825 NW2d 623 (2012). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland v Washington, 466 US 668, 694; 104 S Ct
2052; 80 L Ed 2d 674 (1984).
With respect to obstruction of justice, the trial court instructed the jury as follows:
[F]or obstruction of justice the People are obligated to prove the following
elements beyond a reasonable doubt:
First, that the defendant knowingly assisted in presenting a document in a
court proceeding.
Second, that this document was false and fraudulent.
Third, that the defendant knew that this document was false and fraudulent
at the time he or she assisted in presenting it.
And, fourth, that when [the] defendant did this, he or she had the intent to
impede, thwart, or interfere with the administration of justice.
Clifford contends that the fourth element in the instruction is defective considering our
Supreme Court’s reasoning in Thomas, 438 Mich at 455-456, that while the statement
“obstruction of justice is ‘committed when the effort is made to thwart or impede the
administration of justice’ . . . adequately summarize[d] the essential concept of obstruction of
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justice, [the Court] believe[d] [it] lack[ed] the specificity necessary to sustain a criminal
conviction.” (Citation and footnote omitted.) Clifford fails to note that the Thomas Court
approved of the general statement as “adequately summariz[ing] the essential concept of
obstruction of justice,” but merely concluded that more specificity was necessary to define the
offense sufficiently to support a criminal conviction. The instruction in this case provides the
specificity that Thomas determined was lacking in the generalized statement.
The instruction in this case lists, with specificity, the three acts defendant must be found
to have done in order to have obstructed justice: (1) he had to have knowingly assisted in
presenting a document in a court proceeding; (2) the document had to be false and fraudulent;
and (3) he had to have known the document was false and fraudulent at the time he assisted in
presenting it. Having done those specific acts, the fourth element merely adds the intent
requirement: that defendant intended that the false and fraudulent document he presented in the
court proceeding would impede, thwart, or interfere with the administration of justice. This
instruction supplies the specificity that our Supreme Court in Thomas believed was “necessary to
sustain a criminal conviction.” Because the trial court’s instruction correctly relayed the
elements of the offense, any objection by defense counsel would have been futile. Counsel
cannot be deemed ineffective for failing to raise a futile objection. People v Pinkney, 316 Mich
App 450, 473; 891 NW2d 891 (2016). Clifford’s ineffective assistance claim therefore fails.
VI. JOINT TRIALS
Clifford finally argues that the trial court abused its discretion by denying his motion to
sever his trial from Mary’s trial. We review for an abuse of discretion a trial court’s decision to
join defendants for trial. People v Hana, 447 Mich 325, 338; 524 NW2d 682 (1994).
In his motion, Clifford speculated that it was possible that Mary might choose to testify
against him at a joint trial. Although he admitted that he did not anticipate that she would do so,
he claimed that if she did, “it is at this time that [his] privilege would be violated.” Clifford also
claimed that, because numerous documents would be admitted that contained Mary’s name but
not his, the jury would be confused and might conclude that, because Mary’s name was on the
documents, he must have had knowledge of them. Clifford further claimed that his right to
remain silent could be prejudiced if evidence was submitted against Mary and the prosecution
suggested that Clifford had knowledge of this evidence, because it could force him to surrender
his right to remain silent in order to deny the suggestion. Finally, Clifford stated that “it would
compel [him] to testify which could conceivably impact the husband-wife privilege.”
Defendants were both charged with the same two offenses, false pretenses over $20,000
and obstruction of justice, and the charges were based on the same factual and documentary
evidence. The court rule governing mandatory severance of trials, MCR 6.121(C), states, “On a
defendant’s motion, the court must sever the trial of defendants on related offenses on a showing
that severance is necessary to avoid prejudice to substantial rights of the defendant.” (Emphasis
added.) In Hana, 447 Mich at 346, our Supreme Court explained that “[s]everance is mandated
under MCR 6.121(C) only when a defendant provides the court with a supporting affidavit, or
makes an offer of proof, that clearly, affirmatively, and fully demonstrates that his substantial
rights will be prejudiced and that severance is the necessary means of rectifying the potential
prejudice.” “[F]ailure to make this showing in the trial court, absent any significant indication
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on appeal that the requisite prejudice in fact occurred at trial, will preclude reversal of a joinder
decision.” Id. at 346-347.
Clifford did not submit any affidavit or offer of proof with his motion, other than his
assertions that Mary could potentially testify against him at trial. Therefore, he failed to make
the required showing. On appeal, he has failed to show that the requisite prejudice in fact
occurred at the trial. At trial, Clifford chose to testify and he did not attempt to incriminate
Mary; Mary did not testify and therefore could not incriminate him. Accordingly, pursuant to
Hana, this Court may not reverse the trial court’s joinder decision.
Furthermore, the marital and spousal privileges belong to the testifying spouse, not the
spouse who does not testify. See MCL 600.2162(2) and (7). At trial, Mary did not testify.
Neither defendant blamed the other. Clifford failed to demonstrate that there were antagonistic
defenses or that his substantial rights would be prejudiced by a joint trial. On appeal, he has
failed to show that any prejudice actually occurred to him at trial. Therefore, he has failed to
establish that the trial court abused its discretion by denying his motion for separate trials.
VI. CRUEL OR UNUSUAL PUNISHMENT
Mary argues on appeal that her sentence calling for a minimum of one year of
incarceration for both of her convictions violated the constitutional prohibition against cruel or
unusual punishment. Const 1963, art 1, § 16; US Const, Am VIII. According to the Michigan
Department of Corrections Offender Tracking Information website, Mary has completed her
incarceration, was paroled on February 14, 2017, and is scheduled to be discharged from parole
on February 14, 2018.2 Because Mary has completed her term of incarceration, her claim that
her prison sentence violated the constitutional prohibition against cruel or unusual punishment is
moot. People v Cathey, 261 Mich App 506, 510; 681 NW2d 661 (2004) (“An issue is moot
when an event occurs that renders it impossible for the reviewing court to fashion a remedy to
the controversy.”). Mary argues that this issue is not moot because she is still subject “to parole
conditions versus probation conditions.” However, she cites no authority in support of this
position and her arguments on appeal only relate to whether her prison sentence, not her parole
conditions, constitutes cruel or unusual punishment.3
VII. RESTITUTION
Mary also contends that the prosecution failed to prove that she owed $96,213.42 in
restitution. MCL 780.766(2) provides that, when sentencing a defendant, “the court shall order .
. . the defendant make full restitution to any victim of the defendant’s course of conduct that
2
See < http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=972040 > (accessed
June 30, 2017)
3
Moreover, Mary was sentenced within the applicable sentencing guidelines range. A sentence
within the guidelines range is presumptively proportionate. People v Johnson, 309 Mich App
22, 34; 866 NW2d 883, vacated in part on other grounds 497 Mich 1042 (2015). A proportionate
sentence is not cruel or unusual. Id. at 35.
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gives rise to the conviction or to the victim’s estate.” The original amount of restitution
discussed at sentencing was $96,213.42. Defense counsel objected that this amount did not take
into account payments that were made before the foreclosure occurred. The parties discussed
some of the figures, and they were given an opportunity to jointly arrive at an appropriate
amount; however, they failed to do so. The court resolved the matter by ordering a reduced
amount of restitution of $75,000.4 Defense counsel did not object; instead, he thanked the court.
Defense counsel never asked to reopen the restitution inquiry and never requested an evidentiary
hearing. Even though appellate counsel subsequently moved for post-sentencing relief, neither a
recalculation of the amount of restitution nor an evidentiary hearing was requested.
On appeal, Mary only makes reference to the restitution amount of $96.213.42, but the
final restitution amount ordered was $75,000, and Mary does not challenge this amount on
appeal. Therefore, Mary has abandoned any claim of error on appeal. See People v Iannucci,
314 Mich App 542, 545; 887 NW2d 817 (2016) (“[F]ailure to brief the merits of an allegation of
error constitutes an abandonment of the issue.”) (quotation marks and citation omitted).5
Affirmed.
/s/ Henry William Saad
/s/ Deborah A. Servitto
/s/ Michael F. Gadola
4
The court explained that if defense counsel could demonstrate that the amount should be even
lower than $75,000, it would allow a restitution hearing to address the matter.
5
Even if we were to review this issue for plain error, Mary has not established that any error
occurred. “[T]he court is entitled to rely on the amount recommended in the presentence
investigation report, which is presumed to be accurate unless the defendant effectively
challenges the accuracy of the factual information.” People v Gahan, 456 Mich 264, 276 n 17;
571 NW2d 503 (1997), overruled on other grounds by People v McKinley, 496 Mich 410, 424
(2014) (quotation marks and citation omitted). Because Mary failed to effectively challenge to
the accuracy of the PSIR in the trial court, the prosecution was not put to the task of proving that
its figures were correct. The PSIR recommended a restitution amount of $96,213.42, and the
trial court was permitted to rely on that figure.
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