People of Michigan v. Timothy Larrance Leach

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 28, 2020
Plaintiff-Appellee,
v No. 348608
Wayne Circuit Court
TIMOTHY LARRANCE LEACH, LC No. 18-007699-01-FH
Defendant-Appellant.
Before: BECKERING, P.J., and CAVANAGH and STEPHENS, JJ.
PER CURIAM.
Defendant appeals as on leave granted1 the circuit court’s order denying his motion to
quash the charges of tampering with evidence, MCL 750.483, and engaging as a security guard
without a license, MCL 338.1053. Defendant was also bound over on charges of aggravated
assault, MCL 750.81a, and willful neglect of duty as a public officer, but does not contest those
charges. Defendant was charged with assault with intent to do great bodily harm less than
murder, MCL 750.84, but the district court dismissed the charge at the preliminary examination.
We affirm.
I. FACTUAL BACKGROUND
This matter arises from an incident that occurred on March 11, 2018, at Ottava Via in
Detroit. Defendant and his codefendant, Frederick Person,2 are both Detroit police officers. On
March 11, 2018, defendant, Person, Gregory Pace, Kennan Jefferson, a man named Phernell, and
a man named Tim, were hired by the owner of Ottava Via to provide “access control” to patrons,
which generally involved checking IDs and distributing wristbands to patrons who were 21 years
1
People v Leach, 933 NW2d 284 (Mich, 2019).
2
Defendant and Person were codefendants at the preliminary examination. Person is not part of
the instant appeal.
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or older. However, the owner of the Ottava Via instructed Pace to turn away patrons who
appeared to be too drunk to come inside.
Pace and Person were working the front-door entrance around 2:30 p.m. when defendant
told Pace that “he might need help [inside] escorting a gentleman out of the bar.” When Pace
walked inside Ottava Via, he saw Michael Karpovich, the victim, lying on the ground.
Karpovich was unresponsive, and a pool of blood began to form around his body. The exact
details of the altercation between defendant and Karpovich were not provided at the preliminary
examination, but it appears that defendant struck Karpovich in such a way that Karpovich fell to
the floor and was rendered unconscious. After medical personnel took Karpovich out on a
stretcher, Pace returned to the front-door entrance to resume checking IDs and distributing
wristbands.
Detroit Police Officer Marcus Harris II, and his partner, Officer Terry White, were
dispatched to Ottava Via regarding an intoxicated person that required medical attention. When
Officers Harris and White arrived at Ottava Via, medical personnel were already treating
Karpovich, who was now lying unconscious on a stretcher inside the ambulance. Officer Harris
spoke with Person and Pace at the front-door entrance of Ottava Via. Person told Officer Harris,
“[W]e threw . . . [Karpovich] out of the bar because he was highly intoxicated.” After speaking
with Pace and Person, Officers Harris and White left Ottava Via and went to the hospital where
Karpovich was taken.
The team of men working at Ottava Via on March 11, 2018, including defendant, started
a group chat on their cellphones. On March 10, 2018, defendant sent the group chat a text
message, stating: “Reminder Reminder!! Tomorrow March 11, 2018 Sunday from 11-7pm at
1400 Michigan Ave, Ottava-Via. We will be the security team for their St. Patrick’s Day Parade
and Party, they celebrate a week before the actual event. This time we will all be at the same
spot. Thanks Team[.]” Text messages from the group chat discussed what the men would wear
on March 11, 2018, and where the men could find parking spots. After the incident with
Karpovich, Jefferson texted the group chat about needing a mop to clean up Karpovich’s blood.
Detroit Police Detective Sarah Markel performed cellphone extractions on the six
cellphones belonging to the men working at Ottava Via on March 11, 2018, including the
cellphones of defendant, Person, and Jefferson. Defendant’s and Person’s cellphone numbers
were listed as members in the group chat. A total of 32 text messages were exchanged in the
group chat between the men working at Ottava Via on March 11, 2018. However, when
Detective Merkel analyzed defendant’s and Person’s cellphones, the text messages from the
March 11, 2018 group chat were missing despite records showing that their cellphones were
members and participants in the group chat. The group chat text messages were found on the
four other cellphones that Detective Merkel analyzed. Detective Markel believed that the group
chat text messages were missing from defendant’s and Person’s cellphones because they were
deleted. Although Detective Markel testified that some of the text messages could be missing if
defendant and Person never received them, that scenario seemed unlikely given that defendant
and Person both sent text messages to the group chat.
At the preliminary examination, Jefferson testified that he did not believe that he
provided security services because security, in his opinion, focused more on preventing theft or
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danger to patrons. Jefferson, who has a full-time job with a security company, defined their
duties on March 11, 2018 as “access control.” Defendant did not have a license in the state of
Michigan to engage as a security guard or hold a license to own a security-guard company.
The district court bound defendant over on charges of tampering with evidence, engaging
as a security guard without a license, aggravated assault, and willful neglect of duty. In the
circuit court, defendant filed a motion to quash the charges of engaging as a security guard
without a license and tampering with evidence. The circuit court denied defendant’s motion,
holding that, on the basis of the probable-cause standard, the district court did not abuse its
discretion when it bound defendant over on charges of tampering with evidence and engaging as
a security guard without a license. Defendant filed an interlocutory application for leave to
appeal in this Court, which was denied. People v Leach, unpublished order of the Court of
Appeals, entered May 30, 2019 (Docket No. 348608). Defendant then filed an application for
leave to appeal in the Supreme Court. In lieu of granting defendant’s application for leave to
appeal, the Supreme Court remanded the matter to this Court for consideration as on leave
granted. People v Leach, 933 NW2d 284 (Mich, 2019).
II. MOTION TO QUASH
Defendant argues that the district court abused its discretion by finding probable cause to
believe that defendant tampered with evidence and engaged as a security guard without a license.
We disagree.
This Court reviews a district court’s decision to bind over a defendant for an abuse of
discretion. People v Fairey, 325 Mich. App. 645, 649; 928 NW2d 705 (2018). “An abuse of
discretion occurs when the district court’s decision falls outside the range of principled
outcomes.” Id. (quotation marks and citations omitted). A trial court’s decision to deny a
motion to quash is also reviewed for an abuse of discretion. People v Lemons, 299 Mich. App.
541, 545; 830 NW2d 794 (2013). “However, to the extent that a lower court’s decision on a
motion to quash the information is based on an interpretation of the law, appellate review of the
interpretation is de novo.” Id. (quotation marks and citation omitted).
“The purpose of a preliminary examination is to determine whether probable cause exists
to believe that a crime was committed and that the defendant committed it.” People v Lowery,
274 Mich. App. 684, 685; 736 NW2d 586 (2007). The threshold for evidence sufficient to bind
over a defendant is far lower than what is required to convict a defendant of the crime at trial.
People v Greene, 255 Mich. App. 426, 443-444; 661 NW2d 616 (2003). Probable cause can be
established by circumstantial evidence and reasonable inferences arising from that evidence. Id.
at 444. And probable cause is said to exist when there is a “quantum of evidence sufficient to
cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief
of the accused’s guilt.” People v Anderson, 501 Mich. 175, 183; 912 NW2d 503 (2018), quoting
People v Yost, 468 Mich. 122, 126; 659 NW2d 604 (2003). Generally, probable cause to bind
over a defendant can exist even if the district court has some reasonable doubt that the defendant
committed the crime. Anderson, 501 Mich. at 185-186, quoting Yost, 468 Mich. at 133. That is
so because the “gap between probable cause and guilt beyond reasonable doubt is broad,” which
is why finding guilt beyond a reasonable doubt is the factfinder’s responsibility. Yost, 468 Mich.
at 126.
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A. ENGAGING AS AN UNLICENSED SECURITY GUARD
Defendant first challenges the district court’s decision to bind him over on the charge of
engaging as a security officer without a license, arguing that the prosecution failed to proffer
evidence that he was working as a private security guard or as a security business on March 11,
2018.
Defendant was charged under MCL 338.1053, which provides in relevant part:
(1) Unless licensed under this act, a sole proprietorship, firm, company,
partnership, limited liability company, or corporation shall not engage in the
business of security alarm system contractor, private security guard, private
security police, private college security force, patrol service, or an agency
furnishing those services. A person, firm, company, partnership, limited liability
company, or corporation shall not advertise its business to be that of security
alarm system contractor, security alarm system agent, private security guard
agency, or an agency furnishing those services without having first obtained from
the department a license to do so for each office and branch office to be owned,
conducted, managed, or maintained for the conduct of that business.
A “private security guard” is defined as “an individual or an employee of an employer who
offers, for hire, to provide protection of property on the premises of another, and includes an
employee of a private college security force.” MCL 338.1052(1)(g). And a “security business”
includes “a person engaged in offering, arranging, or providing” private security guard services.
MCL 338.1052(1)(l)(ii).
The prosecution presented sufficient evidence from which the district court could
conscientiously entertain a reasonable belief that defendant was engaged in providing private
security guard services without a license. Defendant claims that there was no evidence that he
acted as a security business, but a security business can be a single person engaging in private
security guard services. MCL 338.1052(1)(l)(ii). The statute does not require an individual to
“own” any business; rather, MCL 338.1052(1)(l) is focused on the services engaged in by a
person. The fact that defendant does not have a business entity registered in his name is only
relevant to the extent that it is evidence that defendant does not have a licensed private security
business. And although Detroit Police Sergeant Todd Eby failed to bring his report to the
preliminary examination, he testified that he searched the police department’s database as well as
the Licensing and Regulatory Affairs (LARA) website and could not find a private security
guard license under defendant’s name.
The prosecution presented evidence that defendant and five other men were hired by the
owner of Ottava Via to do more than check IDs and hand out wristbands to patrons trying to
enter the bar. Pace testified that the owner of Ottava Via told him and Person to decline entry to
patrons who appeared to be intoxicated, indicating that the duties of the six men involved more
than just checking IDs and handing out wristbands. Moreover, defendant clearly felt that he had
the authority to physically evict Karpovich because he was too drunk, suggesting that he was
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hired to protect Ottava Via from damage potentially inflicted by intoxicated patrons. In fact,
defendant sent a reminder text message to the group chat, stating that the men would be the
“security team” for Ottava Via on March 11, 2018. The prosecution presented evidence that
defendant recruited the men to work at Ottava Via, was responsible for paying the men, and had
some authority to relocate the men to different posts throughout the day. Pace also testified that
defendant asked him for help to evict Karpovich. The prosecution presented evidence from
which the district court could reasonably infer that defendant and the five men—who were all
dressed alike in black—were hired to provide protection to Ottava Via on March 11, 2018, by
ensuring that drunk patrons did not enter the bar and that drunk patrons were promptly removed
from the premises. Accordingly, the district court did not abuse its discretion when it bound
defendant over on the charge of engaging as a security guard without a license.
B. TAMPERING WITH EVIDENCE
Defendant argues that the prosecution presented insufficient evidence to support the
district court’s finding that there was probable cause that he tampered with evidence. We
disagree.
Defendant was charged under MCL 750.483a(6)(a), which lists the possible punishments
for a violation of MCL 750.483a(5). MCL 750.483a(5) states:
(5) A person shall not do any of the following:
(a) Knowingly and intentionally remove, alter, conceal, destroy, or otherwise
tamper with evidence to be offered in a present or future official proceeding.
(b) Offer evidence at an official proceeding that he or she recklessly disregards as
false.
MCL 750.483a(11)(a) broadly defines an “official proceeding” as “a proceeding heard before a
legislative, judicial, administrative, or other governmental agency or official authorized to hear
evidence under oath, including a referee, prosecuting attorney, hearing examiner, commissioner,
notary, or other person taking testimony or deposition in that proceeding.” The prosecution
charged defendant under MCL 750.483a(5)(a), alleging that defendant intentionally deleted the
text messages in the March 11, 2018 group chat in an effort to prevent those text messages from
being used against him in a future legal proceeding.
At the preliminary examination, the prosecution presented evidence that defendant and
the five other men working at Ottava Via on March 11, 2018 were in a group chat. Defendant’s
cellphone number was listed in the group chat. However, when Detective Merkel’s analyzed
defendant’s cellphone, the text messages from the March 11, 2018 group chat were missing. Of
the six cellphones that Detective Merkel analyzed, the group chat was found on only four
cellphones. Text messages from the group chat were only missing from Person’s and
defendant’s cellphones. According to Detective Markel, it was unlikely that the text messages
were missing from defendant’s cellphone because of some cellular error because defendant sent
text messages to the group chat. Thus, there was sufficient evidence to allow the district court to
reasonably infer that defendant concealed, destroyed, or otherwise tampered with the text
messages in the March 11, 2018 group chat by deleting the conversation from his cell phone.
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Several text messages in the group chat specifically mentioned the unauthorized work
performed by the team on March 11, 2018 at Ottava Via. In the group chat, the men agreed to
wear black on March 11, 2018, while working. Defendant sent a text message to the group chat
explicitly stating that the men would be the “security team” for Ottava Via. Defendant is a
police officer and likely knew that he needed a license to provide private security services. The
district court could conscientiously entertain a reasonable belief that defendant knew that the text
messages in the group chat could be used as evidence that he was illegally providing security
services to Ottava Via.
Defendant argues that there was no evidence that he knew that the text messages in the
March 11, 2018 group chat would be used in a future criminal proceeding. Defendant claims
that the text messages could have been deleted well before any investigation into the March 11,
2018 incident began, and therefore, defendant could have deleted the text messages without
knowing that they would be used in a future official proceeding. However, Karpovich was
injured so badly from his altercation with defendant that he was left unconscious on the bar floor
with a pool of blood around his body. Shortly after the ambulance arrived, two uniformed police
officers were dispatched to Ottava Via and spoke with Pace and Person regarding the incident
with Karpovich. An investigation into the incident with Karpovich began when Officers Harris
and White were dispatched to Ottava Via, and text messages in the group chat were exchanged
well after Officers Harris and White left Ottava Via. Given that defendant is a police officer and
was the only person involved in the altercation with Karpovich, it is reasonable to believe that
defendant was aware of a future official proceeding in which he would be involved. For that
matter, any person involved in such a violent altercation in the manner that defendant was
involved would reasonably suspect an investigation and possible legal proceeding resulting from
the incident. Accordingly, the district court could conscientiously entertain a reasonable belief
that, when defendant deleted the March 11, 2018 text messages, he did so with the knowledge
that the text messages could be used in a future legal proceeding.
Affirmed.
/s/ Jane M. Beckering
/s/ Mark J. Cavanagh
/s/ Cynthia Diane Stephens
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