People of Michigan v. Nathaniel Ward ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 29, 2020
Plaintiff-Appellee,
v No. 348475
Wayne Circuit Court
NATHANIEL WARD, LC No. 18-005445-01-FH
Defendant-Appellant.
Before: BOONSTRA, P.J., and MARKEY and FORT HOOD, JJ.
PER CURIAM.
Defendant appeals by right his jury trial convictions of third-degree criminal sexual
conduct (CSC-III), MCL 750.520d(1)(c) (penetration of a physically helpless person), and
resisting or obstructing an officer, MCL 750.81d(1). The circuit court sentenced defendant as a
fourth-offense habitual offender, MCL 769.12, to 25 to 50 years’ imprisonment for his CSC-III
conviction and 10 to 15 years for his resisting or obstructing an officer conviction. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
While visiting her sister in River Rouge, JH, the victim in this case, came into contact with
three male friends of her sister whom she did not know. One of them was defendant. JH testified
at trial that she fell asleep on her sister’s couch, and awoke during the early morning hours of
May 30, 2018, to defendant inserting his fingers into her vagina. JH pushed defendant off of her,
a brief physical altercation occurred, and defendant was eventually ushered out of the house by
JH’s sister and another friend. Defendant left behind his cell phone; JH testified that she looked
in his phone to find his name. JH then searched Michigan’s Offender Tracking Information System
(OTIS) for defendant’s name, and because defendant was on parole at the time, found information
about defendant and a photograph of him. JH reported the assault and defendant’s identity to the
police and defendant’s parole officer, and a warrant was issued for defendant’s arrest.
Later that day, Investigator John Hugle of the Absconder Recovery Unit (ARU), which is
a branch of the Michigan Department of Corrections (MDOC), responded to the arrest warrant for
defendant. Investigator Hugle began to surveil defendant’s home in River Rouge; two hours later,
defendant arrived on a bicycle and entered the residence. Investigator Hugle approached the front
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door and knocked. Defendant opened the front door slightly and Investigator Hugle, who was
wearing clothing and body armor that clearly identified him as an officer with MDOC, announced
that he had a warrant for defendant’s arrest and asked him to come outside. Defendant said “no,”
attempted to push the door closed, and began backpedaling. Investigator Hugle stopped the door
with his foot, then saw defendant begin to turn and reach toward his pockets. Fearing for his
safety, Investigator Hugle deployed his taser, incapacitating defendant, who was then arrested.
Two folding knives were found in defendant’s pockets.1
Prior to trial, the prosecution moved the circuit court under MRE 404(b) to admit JH’s
testimony concerning her use of OTIS to identify defendant and her call to his parole officer, as
well as testimony from an MDOC employee concerning the nature of OTIS, which would have
the effect of revealing defendant’s status as a parolee, although his specific prior crimes would not
be disclosed. The prosecution argued that the evidence was admissible for the purpose of showing
the identify of the defendant and explaining how JH, who had just met defendant that day, was
able to identify him by name and photograph. Defendant argued that the evidence was
impermissible propensity evidence and was unfairly prejudicial. The circuit court allowed the
testimony, but gave a limiting instruction to the jury before its deliberations, as discussed later in
this opinion.
Defendant was convicted and sentenced as described. This appeal followed. After filing
his claim of appeal, defendant filed a motion in propria persona with this Court, seeking to remand
for a Ginther2 hearing on the issue of his trial counsel’s ineffectiveness, which this Court denied.3
II. ADMISSION OF EVIDENCE OF DEFENDANT’S PAROLEE STATUS
Defendant argues that the circuit court abused its discretion by granting the prosecution’s
MRE 404(b) motion and admitting evidence related to OTIS and his status as a parolee. We
disagree.
“[W]e review a trial court’s decision to admit evidence for an abuse of discretion, but
review de novo preliminary questions of law, such as whether a rule of evidence precludes
admissibility.” People v Chelmicki, 305 Mich. App. 58, 62; 850 NW2d 612 (2014). “An abuse of
discretion occurs when the trial court chooses an outcome falling outside the range of principled
outcomes.” People v Buie, 491 Mich. 294, 320; 817 NW2d 33 (2012). “[I]t is an abuse of discretion
to admit evidence that is inadmissible as a matter of law.” People v Lukity, 460 Mich. 484, 488;
596 NW2d 607 (1999).
1
Defendant was originally charged with two counts of carrying a concealed weapon (CCW), but
those charges were dismissed by the circuit court because the knives were of a type that were not
prohibited by the relevant statute.
2
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
3
See People v Ward, unpublished order of the Court of Appeals, entered April 17, 2020 (Docket
No. 348475).
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MRE 404(b) regulates the admissibility of evidence of “[o]ther crimes, wrongs, or
acts . . . .” MRE 404(b)(1) states that “[e]vidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in conformity therewith.” The Michigan
Supreme Court has explained that “MRE 404(b) ‘is a rule of legal relevance’ that ‘limits only one
category of logically relevant evidence’: ‘[i]f the proponent’s only theory of relevance is that the
other act shows defendant’s inclination to wrongdoing in general to prove that the defendant
committed the conduct in question, the evidence is not admissible.’ ” People v Jackson, 498 Mich.
246, 258; 869 NW2d 253 (2015), quoting People v VanderVliet, 444 Mich. 52, 61-63; 508 NW2d
114 (1993), amended 445 Mich. 1205 (1994). “Underlying the rule is the fear that a jury will
convict the defendant inferentially on the basis of his bad character rather than because he is guilty
beyond a reasonable doubt of the crime charged.” People v Watkins, 491 Mich. 450, 468; 818
NW2d 296 (2012), quoting People v Crawford, 458 Mich. 376, 384; 582 NW2d 785 (1998).
MRE 404(b), however, “is not exclusionary, but is inclusionary, because it provides a
nonexhaustive list of reasons to properly admit evidence that may nonetheless also give rise to an
inference about the defendant’s character.” People v Mardlin, 487 Mich. 609, 616; 790 NW2d 607
(2010). That “nonexhaustive list of reasons” includes “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 404(b)(1).
Even where evidence is considered to be relevant under MRE 401 and admissible for a
proper purpose under MRE 404(b), the evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.” See MRE 403. Notably, MRE 403
does not regulate all evidence that is “prejudicial” because “[r]elevant evidence is inherently
prejudicial.” People v Mills, 450 Mich. 61, 75; 537 NW2d 909 (1995) (citation omitted), mod 450
Mich. 1212 (1995). Rather, “[i]t is only when the probative value is substantially outweighed by
the danger of unfair prejudice that evidence is excluded.” Id; see also People v Cameron, 291
Mich. App. 599, 611; 806 NW2d 371 (2011).
Before trial, the prosecution provided notice to defendant that it would be seeking the
admission of other-acts evidence under MRE 404(b). Specifically, the prosecution identified
testimony regarding JH’s discovery of defendant’s identity via her use of OTIS. The prosecution
asserted that such testimony would involve a discussion of the OTIS website, which contained
defendant’s photograph because he was on parole. Thus, the jury would be exposed to defendant’s
parolee status, although the information regarding the actual crimes of which defendant was
convicted would be redacted. The prosecution argued that this evidence was relevant to and
probative of the issue of defendant’s identity as the perpetrator of the sexual assault of JH.
Defendant argued the evidence was not relevant to his identity, but instead was being used solely
as a way to inflame the passions of the jurors and to convince them that defendant had committed
the charged crimes because he was a criminal. Further, defendant insisted that any marginal
probative value of the OTIS evidence was substantially outweighed by the danger of unfair
prejudice, and thus that the evidence should be excluded under MRE 403. The circuit court agreed
with the prosecution, reasoning that the evidence was relevant to and probative of defendant’s
identity, admissible, and not excludable under MRE 403. The circuit court noted that the evidence
that defendant was on parole at the time he committed the sexual assault would have been
presented to the jury even without JH’s testimony about OTIS because Investigator Hugle was part
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of the ARU, a branch of MDOC that finds and arrests individuals who have violated their parole.
In any event, to limit any unfair prejudice, the circuit court agreed to and did give a limiting
instruction to the jury.
Defendant now reiterates his argument that the evidence was inadmissible under
MRE 404(b). Our Supreme Court has directed that the first step in analyzing admissibility of
other-acts evidence under the rules of evidence requires consideration of whether “the evidence
[was] offered for a proper purpose under Rule 404(b) . . . .” VanderVliet, 444 Mich. at 55. One of
the proper purposes for the introduction of other-acts evidence specifically considered by
MRE 404(b) is to prove “identity.” MRE 404(b)(1). Here, the prosecution asserted that it was
introducing the evidence to prove defendant’s identity as the perpetrator of the sexual assault of
JH. Indeed, JH’s testimony established that she used OTIS to obtain a photograph of her attacker
and information about him, which she reported to the police and his parole officer, leading to
defendant’s arrest as the alleged perpetrator of the assault against her. The prosecution’s use of
this evidence to prove identity was a proper purpose under MRE 404(b)(1). VanderVliet, 444
Mich. at 55.
The second step in analyzing other-acts evidence requires consideration of “the legal
relevance of the evidence in light of” the stated purpose for its admission. People v Kelly, 317
Mich. App. 637, 644; 895 NW2d 230 (2016). “Under the second prong of the VanderVliet test,
logical relevance is determined by the application of MRE 401 and MRE 402.” People v Denson,
500 Mich. 385, 400; 902 NW2d 306 (2017). “We have emphasized the importance of logical
relevance, calling it the ‘touchstone’ of the admissibility of other-acts evidence.” Id. “Relevance
is a relationship between the evidence and a material fact at issue that must be demonstrated by
reasonable inferences that make a material fact at issue more probable or less probable than it
would be without the evidence.” Crawford, 458 Mich. at 387. “Other-acts evidence is logically
relevant if two components are present: materiality and probative value.” Denson, 500 Mich. at
401.
JH’s use of OTIS was probative of a material fact at issue in the trial—defendant’s identity
as the person who sexually assaulted her. Id. It is clear from the record that defendant’s identity
was a material fact at issue during the trial. JH testified that the afternoon preceding the sexual
assault was the first time that she met the person who assaulted her. She also testified that she had
not been provided with that person’s name during their interactions. Therefore, the jury was
required to consider whether she actually identified the correct person as the one who had assaulted
her, making that issue a material fact for the jury to decide. Crawford, 458 Mich. at 387.
JH testified that her attacker had left his cell phone at her sister’s house when he left on the
morning of the assault. She used that cell phone to access its owner’s e-mail account, and
discovered defendant’s name, “Nathaniel Ward.” JH then searched for Nathaniel Ward on OTIS.
When she found the listing for defendant and saw the photograph, she immediately identified him
as the man who assaulted her on May 30, 2018.
JH’s use of OTIS to find defendant was probative of her ability to identify him. Denson,
500 Mich. at 401. Without this evidence, the jury would have been left to speculate about how JH
was able to identify defendant as her attacker despite having only met him once and not having
been introduced to him by name.
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Defendant argues that the only evidence that actually was probative of defendant’s identity
was that JH looked up his name online and discovered his photograph. In other words, the fact
that JH found defendant on OTIS specifically was not probative of his identity as the perpetrator.
We disagree. The jury was entitled to consider the reliability of the source of the photograph that
JH used to identify defendant as her perpetrator. Stated differently, evidence that JH consulted a
governmental database to identify the photograph of defendant was probative of the weight the
jury might give her identification. Moreover, an MDOC employee testified that defendant’s
photograph on OTIS was last updated when he was paroled in August 2017, less than one year
before the assault occurred. That testimony had significant probative value because it showed that
JH had viewed a recent photograph of defendant when she identified him as the perpetrator. We
conclude that the circuit court properly determined that JH’s and the MDOC employee’s testimony
regarding OTIS was probative of defendant’s identity, which was a material fact at issue during
the trial. Denson, 500 Mich. at 401; Crawford, 458 Mich. at 387.
The third prong of the test for admissibility of other-acts evidence under VanderVliet, 444
Mich. at 55, questions whether, although relevant, the evidence should be still be excluded under
MRE 403 because the probative value of the evidence is substantially outweighed by the danger
of unfair prejudice. “Unfair prejudice may exist where there is a danger that the evidence will be
given undue or preemptive weight by the jury or where it would be inequitable to allow use of the
evidence.” People v Gipson, 287 Mich. App. 261, 263; 787 NW2d 126 (2010), quoting People v
Blackston, 481 Mich. 451, 462; 751 NW2d 408 (2008). Stated differently, the “major function [of
MRE 403] is limited to excluding matter of scant or cumulative probative force, dragged in by the
heels for the sake of its prejudicial effect.” Mills, 450 Mich. at 75 (citation omitted). Such concerns
arise where “the tendency of the proposed evidence [is] to adversely affect the objecting party’s
position by injecting considerations extraneous to the merits of the lawsuit, e.g., the jury’s bias,
sympathy, anger, or shock.” Cameron, 291 Mich. App. at 611 (quotation marks and citation
omitted). Additional concerns include “the danger of confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Watkins, 491 Mich. at 489 (quotation marks and citation omitted).
Defendant argues that the evidence that he was a parolee (and therefore had previously
been convicted of a crime) was unfairly prejudicial in light of the minimally probative nature of
the evidence. We disagree. As discussed, the evidence involving OTIS was highly probative of
defendant’s identity, which was a material fact at issue during the trial. JH did not know defendant
or his name when the assault occurred; therefore, the methods she used to identify him (and their
reliability) was important for the jury to consider. Moreover, although the fact that defendant had
been recently paroled was revealed, the jury was not made aware of the actual crimes of which
defendant had been convicted. The fact that the jury was made generally aware that defendant had
been convicted of a crime in the past, without more, does not suggest that the jury would have
turned to passion or bias in deciding to convict defendant of the charged crimes. Cameron, 291
Mich. App. at 611. Furthermore, because the specific crimes were not mentioned, there was little
possibility that the jurors would confuse the issues and convict defendant on the basis of a crime
not charged in the present case. Watkins, 491 Mich. at 489. In light of the relatively minor
prejudice, if any, and the significant probative value of the evidence, the circuit court did not err
by deciding that the evidence need not be excluded under MRE 403. VanderVliet, 444 Mich. at
55.
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Even if the circuit court did improperly admit the evidence, defendant would still have been
required to show that he was prejudiced by the admission of the evidence. See Lukity, 460 Mich.
at 496 (“[A] preserved, nonconstitutional error is not a ground for reversal unless ‘after an
examination of the entire cause, it shall affirmatively appear’ that it is more probable than not that
the error was outcome determinative.”), quoting MCL 769.26. A trial court may often prevent
prejudice through a limiting instruction. Kelly, 317 Mich. App. at 644; see also People v Mullins,
322 Mich. App. 151, 173; 911 NW2d 201 (2017).
The circuit court gave the following limiting instruction before the jurors began
deliberations:
5.11. You have heard evidence that was introduced to show that the
Defendant was on parole at the time of the alleged offenses. If you believe this
evidence you must be very careful only to consider it for certain purposes.
You may only think about whether this evidence tends to show how [the
victim] identified Nathaniel Ward as the person who sexually assaulted her. You
must not consider this evidence for any other purpose.
For example, you must not decide that it shows that the Defendant is a bad
person or that he’s likely to commit crimes. You must not convict the Defendant
here because you think he is guilty of other bad conduct. All the evidence must
convince you beyond a reasonable doubt that the Defendant committed the alleged
crime or you must find him not guilty.
“Jurors are presumed to follow the court’s instructions, and instructions are presumed to
cure most errors.” People v Mullins, 322 Mich. App. 151, 173; 911 NW2d 201 (2017). In light of
the circuit court’s instruction, we conclude that defendant cannot demonstrate prejudice. Lukity,
460 Mich. at 496. This is especially true because, as the circuit court noted, the jury would likely
have inferred defendant’s parolee status from his apprehension by an ARU officer in any event.
Additionally, our conclusion is supported by the strong independent evidence presented at
trial. JH gave specific, detailed testimony about her recollection of events that night, which were
largely corroborated by her sister. Even if admitted in error, the challenged evidence was not
outcome-determinative, because the jury would have been exposed to defendant’s parolee status
anyway, any unfair prejudice was limited by a jury instruction, and there was strong independent
evidence of defendant’s guilt. Id.
III. DEFENDANT’S STANDARD 4 BRIEF
Defendant, in his Standard 4 brief,4 alleges a wide array of errors to have occurred in this
case. We find all of defendant’s allegations to be without merit.
4
A supplemental appellate brief filed in propria persona by a criminal defendant under Michigan
Supreme Court Administrative Order No. 2004-6, Standard 4.
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A. ALLEGED CONSTITUTIONAL AND JURISDICTIONAL ERRORS—DISTRICT
COURT
Defendant contends that the district court made a number of errors, that resulted both in
constitutional violations and a loss of jurisdiction. We disagree.
1. PRESERVATION AND STANDARD OF REVIEW
Generally, “[f]or an issue to be preserved for appellate review, it must be raised, addressed,
and decided by the lower court.” People v Zitka, 325 Mich. App. 38, 48; 922 NW2d 696 (2018)
(quotation marks and citation omitted). Defendant first challenges alleged errors with the felony
warrant, felony complaint, and his arraignment on those documents. Because defendant did not
raise those issues with the district or circuit courts, they are not preserved for appellate review. Id.
Defendant’s second and third challenges are constitutional arguments regarding Magistrate Vesta
Svenson’s age and requirement to uphold the United States Constitution. Once again, a review of
the record shows that defendant did not raise these issues in the lower courts, and they thus are not
preserved for review. Id. Lastly, defendant argues that the district court lacked jurisdiction
because the case actually involved a contract and a trust, over which the district court never
established jurisdiction. In three separate motions that defendant filed in propria persona with the
circuit court, defendant made similar allegations regarding contracts, corporations, trusts,
executors, and trustees that he now raises in this appeal. The circuit court denied defendant’s
motions to dismiss the charges against him on those grounds. Therefore, these arguments by
defendant are preserved for appeal. Zitka, 325 Mich. App. at 48. Additionally, defendant’s
challenges to jurisdiction generally are also preserved, because “[j]urisdictional defects may be
raised at any time.” People v Martinez, 211 Mich. App. 147, 149; 535 NW2d 236 (1995).
Defendant’s arguments require consideration of certain court rules, statutes, and
constitutional provisions, and also challenge the district court’s exercise of jurisdiction. “To the
extent our analysis involves the interpretation of court rules or questions of subject-matter
jurisdiction . . . our review is de novo.” People v Clement, 254 Mich. App. 387, 389-390; 657
NW2d 172 (2002). For preserved issues, “[w]e review de novo constitutional challenges and
questions of statutory interpretation . . . .” People v Hrlic, 277 Mich. App. 260, 262; 744 NW2d
221 (2007) (citations omitted). However, because certain issues were not raised, addressed, and
decided, we review the “unpreserved claim[s] for plain error affecting defendant’s substantial
rights.” People v Roscoe, 303 Mich. App. 633, 648; 846 NW2d 402 (2014). In order to show that
a defendant’s substantial rights were affected, there must be “a showing of prejudice, i.e., that the
error affected the outcome of the lower court proceedings.” People v Carines, 460 Mich. 750, 763;
597 NW2d 130 (1999). “Reversal is warranted only when the plain, forfeited error resulted in the
conviction of an actually innocent defendant or when an error seriously affected the fairness,
integrity or public reputation of judicial proceedings independent of the defendant’s innocence.”
People v Randolph, 502 Mich. 1, 10; 917 NW2d 249 (2018) (citation omitted).
2. ANALYSIS
Defendant’s allegations of errors committed by the district court are without merit.
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Defendant argues that the felony complaint filed in this case lacked sufficient factual detail
and was not properly authorized by a prosecutor. We disagree. “A complaint is a written
accusation that a named or described person has committed a specified criminal offense.”
MCR 6.101(A). “The primary function of a complaint is to move the magistrate to determine
whether a warrant shall issue.” People v Higuera, 244 Mich. App. 429, 443; 625 NW2d 444 (2001)
(quotation marks and citation omitted). “A complaint shall recite the substance of the accusation
against the accused. The complaint may contain factual allegations establishing reasonable cause.”
MCL 764.1d. “The complaint must include the substance of the accusation against the accused
and the name and statutory citation of the offense.” MCR 6.101(A); see also People v Glass, 464
Mich. 266, 277; 627 NW2d 261 (2001). “The factual allegations contained in the complaint . . .
may be based upon personal knowledge, information and belief, or both.” MCL 764.1a(3).
The complaint in this case, which was sworn to by Detective Danny Dotson, the officer-
in-charge of the case, stated that there was probable cause to believe that defendant committed
CSC-III and resisting or obstructing an officer on May 30, 2018, at JH’s sister’s house in River
Rouge. The complaint contained specific allegations that defendant “did engage in sexual
penetration to wit finger into genital opening with [the victim], said defendant knowing or having
reason to know that the victim was physically helpless, contrary to MCL 750.520d(1)(c).” As to
the second charge, the complaint stated that defendant “did assault, batter, wound, resist, obstruct,
oppose, or endanger John Hugle, a police officer of Absconder Recovery Unit, Michigan
Department of Corrections that the defendant knew or had reason to know was performing his or
her duties, contrary to MCL 750.81d(1).”
Detective Dotson, therefore, swore that defendant had digitally penetrated JH’s vagina
while he knew she was physically helpless, and then resisted or obstructed Investigator Hugle, an
officer with the ARU of the MDOC, in River Rouge on May 30, 2018. The complaint also
contained the relevant statutory sections that were allegedly violated. This was enough factual
information to satisfy the relatively limited standard required of a felony complaint, which by court
rule “must include the substance of the accusation against the accused and the name and statutory
citation of the offense.” MCR 6.101(A). This Court has held, although relating to different
charges, that a similar, brief factual summary was sufficient. People v Cain, 299 Mich. App. 27,
52; 829 NW2d 37 (2012), aff’d in part, rev’d in part on other grounds 495 Mich. 874 (2013).
Defendant also contends that the felony complaint was insufficient because it was not
properly authorized by a prosecutor. A review of the felony complaint filed on June 2, 2018,
shows that it was authorized by a prosecutor, Jacqueline Nicholas, on the day it was filed and
signed by Magistrate Svenson. Therefore, despite allegations to the contrary by defendant, the
district court record in this case clearly establishes that the prosecution complied with
MCR 6.101(C).
In sum, defendant’s allegations regarding errors with the complaint lack merit. Moreover,
our Supreme Court has held that “inadequacies of the complaint” do not “affect the jurisdiction of
the court . . . .” People v Burrill, 391 Mich. 124, 132; 214 NW2d 823 (1974). See also People v
Mayberry, 52 Mich. App. 450, 450-451; 217 NW2d 420 (1974) (concluding that “a conclusory
complaint . . . does not oust jurisdiction”). Therefore, even if defendant had proven that there were
inadequacies with the felony complaint, he would not have been entitled to reversal because of a
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resultant lack of jurisdiction. Burrill, 391 Mich. App. at 132. Consequently, defendant’s arguments
regarding the felony complaint lack merit.
Next, defendant argues that the district court made procedural errors during his
arraignment, which resulted in a loss of jurisdiction. Primarily, defendant argues that his
arraignment was unnecessarily delayed and was held in the wrong district court. Both arguments
lack merit. “Unless released beforehand, an arrested person must be taken without unnecessary
delay before a court for arraignment in accordance with the provisions of this rule . . . .”
MCR 6.104(A). The United States Supreme Court has held that “a jurisdiction that provides
judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply
with the promptness requirement . . . .” Riverside Co v McLaughlin, 500 U.S. 44, 56; 111 S. Ct.
1661; 114 L. Ed. 2d 49 (1991). The Court clarified, though, that a violation of the 48-hour rule does
not automatically require a finding that a delay was unreasonable, but only that, “[i]n such a case,
the arrested individual does not bear the burden of proving an unreasonable delay.” Id. at 57.
Instead, “the burden shifts to the government to demonstrate the existence of a bona fide
emergency or other extraordinary circumstance.” Id.
Defendant’s arraignment occurred on June 2, 2018, following his arrest on May 30, 2018.
Therefore, more than the 48-hour period discussed in Riverside Co, 500 U.S. at 56-57, had elapsed.
Defendant contends that this was a jurisdictional error requiring the reversal of his convictions and
the dismissal of the charges against him. But this Court has held that, “ ‘[w]hile an improper delay
in arraignment may necessitate the suppression of evidence obtained as a result of that delay, the
delay does not entitle a defendant to dismissal of the prosecution.’ ” Cain, 299 Mich. App. at 49,
quoting People v Harrison, 163 Mich. App. 409, 421; 413 NW2d 813 (1987). Our Supreme Court
has held similarly, reasoning that application of the exclusionary rule—not a loss of jurisdiction
and dismissal—is the remedy for an improperly delayed arraignment. People v Mallory, 421 Mich.
229, 240-241; 365 NW2d 673 (1984). Defendant has not alleged that evidence was obtained as a
result of an unnecessary delay and should have been excluded. Defendant has not provided any
grounds for this Court to provide him relief for the delayed arraignment, even assuming the delay
was unreasonable. Id.; Cain, 299 Mich. App. at 49; Harrison, 163 Mich. App. at 421.
In regards to the place of the arraignment, the court rules provide that “[a]n accused arrested
pursuant to a warrant must be taken to a court specified in the warrant.” MCR 6.104(B).
Defendant argues that this rule was violated, because the felony warrant in this case specified the
25th District Court, and Magistrate Svenson, who signed the warrant, was not a judge in that
district. Defendant is correct that the felony warrant in this case appears on a form containing the
address of the 25th District Court. The record shows that defendant was arraigned and bound over
at the 25th District Court, and that the arraignment was conducted by Magistrate Svenson and
Judge David Zelenak. Defendant has presented no evidence to establish the factual basis for his
claim.
Defendant also argues that the district court erred by failing to make “[a] verbatim
record . . . of the arraignment,” and that the district court violated MCR 6.104(F). “As the
appellant,” defendant “bore the burden of furnishing the reviewing court with a record to verify
the factual basis of any argument upon which reversal was predicated.” People v Elston, 462 Mich.
751, 762; 614 NW2d 595 (2000). The record as provided to this Court does not contain a transcript
of the district court’s arraignment on the felony complaint and warrant. However, the record also
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shows that defendant never requested production of the transcript of his arraignment. Therefore,
defendant has failed to bear his burden to “verify the factual basis” of his contention that such a
record does not exist. Id.
Defendant further argues that his convictions must be reversed because Magistrate Svenson
was over the age of 70 years during the district court proceedings. Defendant is in error, because
Const 1963, art 6, § 19(3), applies to state court judges, but does not, by its language, apply to
magistrates. Under that provision of the Michigan Constitution, individuals cannot be appointed
or elected as state court judges when they are over the age of 70 years on the date of the election
or appointment. O’Connell v Dir of Elections, 317 Mich. App. 82, 86; 894 NW2d 113 (2016). But
the requirements and duties of a district court magistrate are established by statute. In re James,
492 Mich. 553, 566 n 21; 821 NW2d 144 (2012). These statutory qualifications, notably, do not
contain an age limitation. See MCL 600.8501 and MCL 600.8507. Defendant has failed to
support his argument with applicable law (and has further failed to demonstrate, that even if the
Michigan Constitution were applicable, Magistrate Svenson was appointed or elected when she
was over the age of 70). Moreover, defendant has failed to cite any authority for the proposition
that the remedy for a violation of an age limitation on magistrates would be the reversal of his
convictions.
Defendant makes a lengthy and largely incoherent argument regarding alleged mass fraud
by the criminal justice system in the United States. The crux of his argument appears to be that
district and circuit courts in Michigan are only able to render decisions in criminal cases by
considering people as personal property and with the consent of the accused. He claims that by
withdrawing his consent and asserting that he is representing a trust, the district and circuit courts
were divested of their jurisdiction. Defendant also makes an array of allegations that, because the
courts are actually dealing with property and not people, they have to prove there was a valid debt
or valid contract before they can proceed. Because there was no evidence of a debt or a contract,
defendant contends that his convictions must be reversed and all “criminal” charges against him
dismissed. In support of that argument, defendant cites sources including Federal Rules of Civil
Procedure; Title 5 of the United States Code; Title 27 of the Code of Federal Regulations; and
various treatises, cases, and canons. We decline to respond at length to these sweeping allegations,
but only note that under MCL 600.8311(c) and(d), “the district court has jurisdiction of . . .
[a]rraignments, the fixing of bail and the accepting of bonds, [and] . . . [p]reliminary examinations
in all felony cases . . . .” A district court obtains jurisdiction over a specific defendant to perform
the arraignment and preliminary examination when it issues a warrant on the basis of a probable-
cause finding after reviewing a sworn complaint. People v Mosley, 338 Mich. 559, 564; 61 NW2d
785 (1953). Defendant has not successfully challenged the district court’s jurisdiction in this case.
Defendant’s final constitutional/jurisdictional argument is that the district court lost
jurisdiction over him when it failed to ensure that his due-process rights were not violated by the
other errors he has alleged. Defendant goes so far as to suggest that the district court has committed
treason, see 18 USC 2381,5 by failing to ensure his constitutional right to due process. As
5
“Whoever, owing allegiance to the United States, levies war against them or adheres to their
enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason
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discussed, we find no merit to his claims of error; we also decline to find the district court to have
lost jurisdiction over defendant, through treason or otherwise.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues that he was not provided effective assistance of counsel during the
district-court proceedings. We disagree.
1. PRESERVATION AND STANDARD OF REVIEW
Because defendant did not move the circuit court for a new trial or a Ginther hearing on his
counsel’s ineffectiveness, and this Court denied his motion to remand for a Ginther hearing, our
review is limited to the existing record. People v Jackson (On Reconsideration), 313 Mich. App.
409, 431; 884 NW2d 297 (2015); see also People v Johnson, 315 Mich. App. 163, 174; 889 NW2d
513 (2016). “The denial of effective assistance of counsel is a mixed question of fact and
constitutional law, which are reviewed, respectively, for clear error and de novo.” People v
Schrauben, 314 Mich. App. 181, 189; 886 NW2d 173 (2016), quoting People v Brown, 279 Mich
App 116, 140; 755 NW2d 664 (2008).
2. ANALYSIS
“Criminal defendants have a right to the effective assistance of counsel under the United
States and Michigan Constitutions.” Schrauben, 314 Mich. App. at 189-190, citing US Const, Am
VI; Const 1963, art 1, § 20. “However, effective assistance of counsel is presumed, and the
defendant bears a heavy burden of proving otherwise.” Schrauben, 314 Mich. App. at 190. The
United States Supreme Court has held that “in order to receive a new trial on the basis of ineffective
assistance of counsel, a defendant must establish that ‘counsel’s representation fell below an
objective standard of reasonableness’ and that ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” People
v Vaughn, 491 Mich. 642, 669; 821 NW2d 288 (2012), quoting Strickland v Washington, 466 U.S.
668, 688, 694; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984). “When reviewing defense counsel’s
performance, the reviewing court must first objectively ‘determine whether, in light of all the
circumstances, the identified acts or omissions were outside the wide range of professionally
competent assistance.’ ” Jackson, 313 Mich. App. at 431, quoting Strickland, 466 U.S. at 690.
“Next, the defendant must show that trial counsel’s deficient performance prejudiced his defense—
in other words, that ‘there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.’ ” Jackson, 313 Mich. App. at 431, quoting
Vaughn, 491 Mich. at 669.
We will not find trial counsel to be ineffective when an objection would have been futile;
nor will we second-guess matters of trial strategy. People v Thomas, 260 Mich. App. 450, 457; 678
NW2d 631 (2004); People v Rockey, 237 Mich. App. 74, 76-77; 601 NW2d 887 (1999). “The
and shall suffer death, or shall be imprisoned not less than five years and fined under this title but
not less than $10,000; and shall be incapable of holding any office under the United States.” 18
USC 2381.
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defendant ‘bears the burden of demonstrating both deficient performance and prejudice[;] the
defendant [also] necessarily bears the burden of establishing the factual predicate for his claim.’ ”
People v Cooper, 309 Mich. App. 74, 80; 867 NW2d 452 (2015), quoting People v Carbin, 463
Mich. 590, 600; 623 NW2d 884 (2001) (alteration in Cooper).
Defendant argues that his counsel was ineffective during the district-court proceedings for
failing to object to the issues with the felony complaint, felony warrant, and jurisdiction identified
in his Standard 4 brief. As discussed earlier in this opinion, we find no error requiring reversal in
any of these allegations. Thus, any objection or motion to dismiss filed by defendant’s counsel
would have been futile. “Failing to advance a meritless argument or raise a futile objection does
not constitute ineffective assistance of counsel.” People v Savage, 327 Mich. App. 604, 617; 935
NW2d 69 (2019) (quotation marks and citation omitted).
Defendant also argues that his counsel was ineffective for failing to adequately cross-
examine the prosecution’s witnesses during the preliminary examination. Generally, counsel’s
decision regarding whether or how to cross-examine witnesses is a matter of trial strategy, “which
we will not second-guess with the benefit of hindsight.” People v Dixon, 263 Mich. App. 393, 398;
688 NW2d 308 (2004). During the preliminary examination, the prosecution called Investigator
Hugle as the first witness. After Investigator Hugle provided testimony about his altercation with
defendant during his arrest, defendant’s district court counsel engaged in the following brief cross-
examination:
Q. Did you have a bodycam on?
A. No, sir.
Q. Okay. Is it a policy . . .
A. No, sir.
Q. . . . if you wear a bodycam or not?
A. No, sir. No, sir.
Q. Okay.
JH also testified at the preliminary examination, and the prosecution elicited testimony that
substantively matched her testimony during trial. Defense counsel only asked JH one question on
cross-examination:
Q. Uh, I just want to clarify ma’am, when—when, um, [defendant], um,
had his fingers in your vagina, was anybody else present, anybody else see this to
your knowledge?
A. No.
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On the second day of the preliminary examination, the prosecution called Lieutenant Vanderaa to
testify regarding the two knives found in defendant’s possession after his arrest. Defense counsel
did not ask any questions on cross-examination.
Defense counsel’s strategy during cross-examination was clear—to ensure that the district
court judge was aware that there were no other witnesses to defendant’s alleged sexual assault of
JH and that there was no bodycam footage of defendant’s arrest. Although the cross-examination
was brief, defense counsel elicited these weaknesses in the prosecution’s case from the testifying
witnesses. Defendant has failed to overcome the presumption that defense counsel’s conduct was
the product of sound trial strategy. Johnson, 315 Mich. App. at 174; Schrauben, 314 Mich. App. at
190; Dixon, 263 Mich. App. at 398.
Further, even if his counsel’s cross-examination of witnesses during the preliminary
examination was objectively unreasonable, defendant would still be unable to prove prejudice.
Cooper, 309 Mich. App. at 80; see also Strickland, 466 U.S. at 694. Defendant was not prejudiced
by counsel’s decision not to cross-examine Lieutenant Vanderaa about his finding knives in
defendant’s pockets, because the CCW charges were dismissed before the case went to trial.
Further, defendant has not explained how additional cross-examination of Investigator Hugle or
JH would have changed the outcome of the proceedings. Both Investigator Hugle and JH presented
specific testimony that defendant had digitally penetrated JH while she was asleep, and then
resisted or obstructed Investigator Hugle during his arrest. There is nothing apparent on the record
that suggests that further cross-examination during the preliminary examination would have
resulted in defendant not being bound over to the circuit court. Defendant has not demonstrated a
reasonable probability that, but for any errors by his counsel, the proceedings against him would
have had different results. Strickland, 466 U.S. at 694.
Defendant also argues that his counsel’s cross-examination of JH was ineffective for an
additional reason, i.e., that his counsel’s only question implied that defendant had committed the
digital penetration. However, as noted, JH had already testified that defendant digitally penetrated
her vagina while she was sleeping. Defense counsel’s question about whether anyone saw this
event occur, while perhaps not perfectly crafted, certainly did not cause defendant prejudice. Id.
Lastly, defendant argues that his counsel failed to properly investigate the case, that proper
investigation would have led to additional witnesses testifying at the preliminary examination, and
that his counsel failed to meet with defendant before the preliminary examination. “The failure to
reasonably investigate a case can constitute ineffective assistance of counsel.” People v Anderson,
322 Mich. App. 622, 630; 912 NW2d 607 (2018). The defendant bears the burden of establishing
the factual predicate for his claim of inadequate investigation. Anderson, 322 Mich. App. at 628.
Defendant has failed to establish the factual predicate for his claim. Although he claims a
more thorough investigation by his counsel would have uncovered additional witnesses, he fails
to identify any such witnesses or describe what their testimony would have been and how that
would have benefited his case. Id. Regarding defendant’s claim that his attorney failed to meet
with him prior to the preliminary examination, defendant has not established the factual basis for
this claim; further, defendant has not specified how he was prejudiced by his attorney’s alleged
failure to meet with him. As we have discussed, defendant’s attorney was clearly versed in the
facts of the case at the time of the preliminary examination, and employed a reasonable strategy
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of pointing out a lack of corroborating evidence. We find defendant’s argument to be without
merit. Id.; Anderson, 322 Mich. App. at 628.
C. ALLEGED CONSTITUTIONAL AND JURISDICTIONAL ERRORS—CIRCUIT COURT
Defendant, in his Standard 4 brief, also asserts that there were a number of errors,
constitutional and otherwise, that resulted in the circuit court’s loss of jurisdiction. We disagree.
1. PRESERVATION AND STANDARD OF REVIEW
Generally, as noted, “[f]or an issue to be preserved for appellate review, it must be raised,
addressed, and decided by the lower court.” Zitka, 325 Mich. App. at 48 (quotation marks and
citation omitted). Defendant challenges the circuit court’s jurisdiction on two grounds—first, that
the circuit court improperly tried him as a criminal when it was actually civil court by virtue of
defendant’s supposed status as a trust and contract, and second, that the circuit court improperly
acted under maritime jurisdiction. As discussed earlier, defendant raised the issue of jurisdiction
related to allegations that the circuit court was a civil court masquerading as a criminal court, along
with the various associated arguments about contract and commercial law, with the circuit court,
which motion was denied. Thus, that issue is preserved. Id. Defendant’s argument regarding
maritime jurisdiction, however, was not raised. However, “[j]urisdictional defects may be raised
at any time.” Martinez, 211 Mich. App. at 149. Consequently, we will still consider the issue,
despite the lack of preservation. Next, defendant makes a constitutional argument regarding
education and licensing of lawyers and judges, which was not raised with the lower court and
therefore is not preserved for this Court’s review. Zitka, 325 Mich. App. at 48.
See Section III.A.1. of this opinion for the applicable standards of review for preserved and
unpreserved issues.
2. ANALYSIS
Defendant’s arguments regarding the circuit court’s jurisdiction and alleged constitutional
violations are without merit and do not require reversal.
Defendant first argues that we must not hold him, as a pro se appellant, to the same standard
to which we hold licensed attorneys. It is true that this Court has held that “because of the
constitutional issues involved, a prisoner’s pro se pleadings are held to a less stringent
standard . . . .” People v Herrera (On Remand), 204 Mich. App. 333, 339; 514 NW2d 543 (1994).
Even so, this less-stringent standard does not change the requirement that defendant present some
legally or factually meritorious grounds for reversal. See Estelle v Gamble, 429 U.S. 97, 106-108;
97 S. Ct. 285; 50 L. Ed. 2d 251 (1976).
Next, defendant makes two separate arguments regarding the circuit court’s jurisdiction
over him. Defendant first reiterates his argument (which we have already addressed and rejected
in this opinion)—that the entire criminal justice system in Michigan state courts is a fraudulent
scheme involving civil courts, administrative tribunals, contracts, the consent of the accused,
trusts, and unproven debts. Second, defendant adds that the circuit court operated under maritime
jurisdiction, which was not permitted because defendant was on land when the alleged crimes
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occurred. We need not address either of these issues at length, as defendant has failed to provide
binding legal authority in support of either of these propositions.
Our Supreme Court in People v Goecke, 457 Mich. 442, 458-459; 579 NW2d 868 (1998),
held that circuit courts have subject-matter jurisdiction over felony criminal cases, in general. Id.
at 458. Further, “[i]n personam jurisdiction is vested in the circuit court upon the filing of a return
of the magistrate . . . before whom the defendant had been examined.” Id. (quotation marks and
citation omitted). A review of the record in this case shows clearly that defendant underwent a
preliminary examination in the district court, after which the district court found probable cause to
believe that defendant had committed the charged crimes. Having so decided, the district court
then bound defendant over to circuit court for trial on those charges. The prosecution subsequently
filed a felony information, and the circuit court conducted an arraignment on the information.
Considering those facts, it is clear that the circuit court had subject-matter jurisdiction over this
case. Id. See also People v Lown, 488 Mich. 242, 268; 794 NW2d 9 (2011) (“Michigan circuit
courts are courts of general jurisdiction and unquestionably have jurisdiction over felony cases.”).
Further, the circuit court also had personal jurisdiction over defendant because the district
court conducted a preliminary examination and filed a return, binding over defendant’s case for
trial. Goecke, 457 Mich. at 458. There is nothing in the record to suggest that any court involved
in this case was relying on maritime jurisdiction. Rather, the facts as just discussed establish that
the circuit court had both subject-matter and personal jurisdiction to consider defendant’s case. Id.
D. CONSTITUTIONAL CHALLENGES TO THE LEGAL SYSTEM AS A WHOLE
Defendant argues that the system for accreditation of lawyers and judges is unconstitutional
because it provides for titles of nobility and creates a ruling class. For that argument, defendant
first relies on the following pertinent language: “No Title of Nobility shall be granted by the United
States.” US Const, art I, § 9, cl 8. However, while creative, defendant has not supported with any
legal authority his argument that an attorney, as a result of being licensed or becoming qualified
to be a judge, becomes invested with a title of nobility. Indeed, in Jackson v Florida, opinion of
the United States District Court for the Middle District of Florida, issued December 19, 2018 (Case
No. 18-cv-259-FtM-29MRM), p 2, the court held that a lawyer’s “ ‘title’ as ‘Esquire’ does not
implicate” US Const, art I, § 9, cl 8. Similarly, in McIndoo v Broward Co, 750 Fed Appx 816,
819 (CA 11, 2018), the United States Court of Appeals for the Eleventh Circuit held that a suit
against a state judge “involves no title of nobility . . . that would implicate” the cited clause of the
United States Constitution. Although those decisions are not binding, we consider them
persuasive. Consequently, because the titles given to attorneys and judges are not titles of nobility,
US Const, art I, § 9, cl 8, is not implicated, and thus, defendant’s argument lacks merit.
Defendant also argues that the existence of licensure for attorneys and judges violates the
following relevant portion of the United States Constitution: “The United States shall guarantee to
every State in this Union a Republican Form of Government . . . .” US Const, art IV, § 4. When
describing this “Republican Form of Government” guaranteed to Michigan’s citizens, our
Supreme Court explained that Michigan is “a constitutional republic in which we, as Michigan
citizens, elect our representatives to local and state legislative bodies to enact our laws.” Stand Up
for Democracy v Secretary of State, 492 Mich. 588, 599; 822 NW2d 159 (2012) (opinion by MARY
BETH KELLY, J.). In a similar vein, our Supreme Court has also stated that, “[o]f primary
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importance to the viability of our republican system of government is the ability of elected
representatives to act on behalf of the people through the exercise of their power to enact, amend,
or repeal legislation.” Studier v Mich Pub Sch Employees’ Retirement Bd, 472 Mich. 642, 660;
698 NW2d 350 (2005). From these cases, it is clear that the constitutional right to a “Republican
Form of Government” is related to the legislative branch of the government. US Const, art IV, §
4; Stand up for Democracy, 492 Mich. at 599; Studier, 472 Mich. at 660. Defendant’s analysis of
the issue makes no allegation that the licensing procedures for attorneys and judges somehow
violates a Michigan citizen’s right to elect a representative to the Legislature. Consequently,
contrary to defendant’s argument, the existence of attorneys and judges in Michigan does not
implicate US Const, art IV, § 4.
E. JURISDICTION OF THIS COURT
Lastly, defendant, in his Standard 4 brief, argues that we are required to determine whether
we have been divested of jurisdiction by failing to ensure that defendant was not denied his right
to due process. Because we have jurisdiction to hear this appeal, we disagree.
“Under MCR 7.203(A)(1), this Court has jurisdiction over ‘[a] final judgment or final order
of the circuit court . . . .’ ” People v Wiley, 324 Mich. App. 130, 146; 919 NW2d 802 (2018). In
criminal cases, a “final judgment” or “final order” includes “the original sentence imposed
following conviction.” MCR 7.202(6)(b)(ii).
Having already addressed defendant’s previous arguments regarding jurisdiction and
finding them to be without merit, we are left with a direct appeal by a defendant of the circuit
court’s judgment of sentence following his criminal convictions. Under the applicable court rules,
MCR 7.203(A)(1) and 7.202(6)(b)(ii), and caselaw, Wiley, 324 Mich. App. at 146, this Court has
jurisdiction over such an appeal. Defendant has not cited any authority that a denial of due process
by a circuit court or district court, even if it actually existed, would deprive an appellate court of
jurisdiction to hear his appeal. Indeed, if it did, defendant would be left without an avenue to
challenge his convictions and assert his right to due process.
Moreover, to the extent that defendant argues that this Court has already denied him due
process, defendant has failed to allege exactly what actions by this Court have deprived him of his
constitutional rights, and has failed to provide authority that such a deprivation would divest this
Court of jurisdiction. Defendant is not permitted “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.” People v Bass, 317 Mich. App. 241, 276; 893 NW2d 140 (2016) (quotation marks and
citation omitted). Defendant’s argument is without merit.
Affirmed.
/s/ Mark T. Boonstra
/s/ Jane E. Markey
/s/ Karen M. Fort Hood
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