C People of Michigan v. Anthony Jeffrey Vogel ( 2023 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 28, 2023
Plaintiff-Appellee,
v No. 359936
Ogemaw Circuit Court
ANTHONY JEFFREY VOGEL, LC No. 19-005320-FH
Defendant-Appellant.
Before: SHAPIRO, P.J., and M. J. KELLY and CAMERON, JJ.
SHAPIRO, P.J. (concurring).
I concur in affirming defendant’s convictions and sentences.1 I write separately to urge the
Supreme Court to reexamine its holding in People v Watkins, 491 Mich 450; 818 NW2d 296(2012), that MCL 768.27a does not violate separation-of-power principles. This holding was
supported by the Court’s conclusion that, despite the admissibility provided MCL 768.27a, a
defendant was still shielded from overly-prejudicial evidence under MRE 403. See Watkins, 491
Mich at 481-491. In practice, however, evidence meeting the statutory criteria is rarely, if ever,
excluded pursuant to MRE 403. The likely reason is that the fundamental prejudice arising from
such evidence is that it constitutes propensity evidence, but per Watkins, “when applying MRE
403 to evidence admissible under MCL 768.27a, courts must weigh the propensity inference in
favor of the evidence’s probative value rather than its prejudicial effect.” Watkins, 491 Mich at
487. I also believe that the Supreme Court should review this Court’s holding in People v Payne,
304 Mich App 667, 676; 850 NW2d 601 (2014), that the 25-year mandatory minimum prescribed
by MCL 750.520b(2)(b) does not constitute cruel or unusual punishment as applied to juvenile
offenders. The Supreme Court has not yet addressed this issue, and in light of People v Parks, 510
1
While I disagree with the majority that defendant’s statements to the police denying the
accusations were properly excluded, I conclude that any error on this matter was harmless. I agree
with the majority opinion in all other respects.
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Mich 225; 987 NW2d 161 (2022), mandatory lengthy sentences of minors are of questionable
constitutionality.
/s/ Douglas B. Shapiro
-2-