Affirmed conviction of possession and delivery of an anabolic steroid.

The statute prohibiting the possession of anabolic steroids is not unconstitutionally void for vagueness. The language of the statute plainly and unambiguously identifies Trenbolone as a controlled substance. It is excluded only if it is expressly intended to be used or administered “through implants to cattle or other nonhuman species.” Furthermore, the statute focuses on the possessor's intent, and possession of an anabolic steroid intended for human consumption is illegal.

The trial court did not err in finding that collateral estoppel prevented defendant from further challenging the validity of the search warrants. Their validity was previously litigated in another county and defendant participated in that litigation. The Ingham County prosecutor and the Oakland County Prosecutor are the same party for purposes of collateral estoppel.

The search warrant for defendant's urine was not stale or “bare bones.” The circumstances, including defendant's possession, sale, and use of steroids, provided a substantial basis to conclude that there was a fair probability that anabolic steroids would be found in defendant's urine.

The police did not violate defendant's Fourth Amendment rights by searching his password-protected e-mail files with the consent of the computer's owner. Defendant had no standing to object to the search because he did not own the computer or the residence in which it was located. Moreover, the owner expressly and validly consented. The officers were not obligated to ask whether defendant's files were password protected.

The trial prosecutor was not required to adhere to an agreement reached in a separate trial with the previous prosecutor not to introduce evidence that defendant's urine tested positive for Trenbolone. The prosecutor did not improperly vouch for an expert witness's credibility; he merely responded to defense counsel's argument questioning the witness's credibility.

There was sufficient evidence of possession of the controlled substance. Defendant had Trenbolone shipped to his post office box and the police found materials in defendant's garbage used to convert Finaplix-H for human consumption.

The trial court did not err in imposing costs to reimburse the prosecution's expense of an expert witness at trial. According to MCL 771.32(2), as a condition of probation, the court may require the probationer to pay expenses incurred in prosecuting the defendant. The trial court considered defendant's ability to pay and concluded that he could pay if he chose to.

Defendant failed to establish ineffective assistance of counsel in any regard.

Defendant's rights under Garrity v New Jersey, 385 US 493 (1967) (that an officer's self-incriminating statements procured under the threat of discharge cannot be used against him in criminal proceedings) were not violated. Defendant failed to show that any evidence procured during his Garrity interview was used against him, either at trial or to secure the search warrant.

The trial court did not err in failing to state reasons for denying defendant's motion for mistrial. The trial court previously considered and rejected all of defendant's arguments.

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Reversed trial court order granting motion to suppress.

The trial court erred in suppressing evidence on the grounds that the canine sniff violated defendant's Fourth Amendment rights. Police had information from an informant that defendant, who had a prior drug conviction, kept marijuana at his residence, and they brought a narcotics-detection dog to his front door. Based on the dog's positive reaction, they obtained a search warrant. The canine sniff did not intrude upon any legitimate privacy interest as there is no legitimate interest in possessing marijuana. A canine sniff is not a search for Fourth Amendment purposes if the dog is legally present at its vantage point. A person's heightened expectation of privacy in his or her home is irrelevant. Here, the canine was lawfully present at defendant's front door; defendant had no reasonable expectation of privacy on his front porch.

Judge Borrello, dissenting, would hold that the canine sniff constituted an unreasonable search. According to the dissenter, the majority opinion erodes the protections afforded by the Fourth Amendment to protect the privacy and sanctity of individuals' homes.

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Affirmed convictions of kidnapping and four counts of CSC I, and sentence of 40 to 60 years in prison.

The prosecutor's questioning of defendant's daughter did not elicit “other acts” evidence concerning a prior rape without the notice required by MRE 404(b)(2). Defense counsel opened the door to the evidence, the testimony was cumulative, and the trial court's instructions cured any unfair prejudice.

The trial court did not deny defendant a fair trial by denying his motion to attend trial without leg restraints. The prohibition against shackling does not extend to transporting defendant to and from the courtroom, and there was no indication that any jurors saw defendant in restraints.

Defendant was not denied his right to effective assistance of counsel. Defendant failed to overcome the presumption that counsel engaged in trial strategy in failing to call witnesses and present certain evidence cross-examine witnesses concerning inconsistencies, or object to the prosecutor's improper arguments. The prosecutor used defendant's silence to rebut defendant's argument that the police failed to investigate adequately.

The jury's verdict was not against the great weight of the evidence. The complainant's testimony was not devoid of all probative value or contradicted by indisputable physical facts.

The trial court did not engage in speculation or rely on non-objective, non-verifiable factors in departing from the sentencing guidelines. The judge's observation that defendant posed a grave danger to his wife was based on concrete evidence, including repeated, vicious assaults and attempts to kill her. Defendant's escalating violence against a select victim was not adequately considered by the guidelines, and the departure was proportionate to the offense and the offender.

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Reversed trial court order granting motion to dismiss charges of CSC III.

The evidence was sufficient to bind defendant over on charges of using force or coercion to accomplish sexual penetration. A factual question exists regarding whether the sexual encounters between defendant, a psychiatrist, and the victim, his patient, were consensual or the result of manipulation in the context of therapy. The victim's ability to either consent or voluntarily participate in the relationship is questionable based on her history of mental health issues and medications.

The trial court erred in finding that MCL 750.520b(1)(f)(iv) constituted an improper delegation of legislative authority to determine whether a medical examination was conducted in a manner that was unethical or unacceptable. Although private, ethical standards of the American Psychiatric Association are used as guidelines, it is the Michigan Legislature that defines the legal consequences.

The statute is not unconstitutionally vague and overlybroad because it is silent on the issue of consent. Consent is not an element of the crime and its absence from the statutory language does render the statute vague. The presence of consent is not necessarily the factual equivalent of the absence of coercion; the question is the validity of the consent.

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Affirmed conviction of third-degree domestic violence.

The trial court did not err by allowing the prosecutor to introduce defendant’s guilty plea to domestic violence from an earlier case. The legal basis for the prosecutor presenting the evidence, MCL 768.27b, does not infringe on the Supreme Court’s constitutional authority to manage the practice and procedure of the courts of this state. It is a substantive rule engendered by a policy choice and does not interfere with the Supreme Court’s authority to make rules that govern the administration of the judiciary and its process.

The statute does not violate the ex post facto law. The adoption of MCL 768.27b did not lower the quantum of proof needed to convict a defendant. The statute affects only the admissibility of a type of evidence, and its enactment did not turn otherwise innocent behavior into a criminal act.

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Reversed order denying petition for testing of biological evidence.

The trial court erred when it denied defendant’s request for DNA testing. The court improperly interpreted MCL 770.16(3)(a) and erroneously concluded that the biological evidence was immaterial because other evidence supported a finding of guilty, holding defendant to a higher standard than the “prima facie proof” required under the statute. The court improperly engaged in the balancing test that applies only after the biological evidence has already been tested. The term “material” as used in the statute does not allow a trial court to engage in a balancing inquiry; its only responsibility is to determine if a defendant has presented prima facie proof that the evidence is material to the issue of identity.

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Reversed trial court order granting jail credit.

The trial court erred as a matter of law by allowing jail credit against defendant's larceny sentence despite his status as a parole violator. A parole detainee is entitled to have jail credit applied exclusively to the sentence from which parole was granted. The plain language of the statute, MCL 769.11b, is inapplicable when a parolee is held on new charges of parole violation. The period of incarceration pending resolution of parole violation proceedings constitutes part of the original sentence. If a defendant is not required to serve additional time on his previous sentence because of the parole violation, then the time served is forfeited.

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Affirmed convictions of filing false Medicaid claims under the Medicaid False Claim Act (MFCA).

The MFCA, MCL 400.607(1), is not preempted by the federal criminal statute addressing Medicaid fraud, 42 USC 1320a-7b. The federal statute requires actual knowledge and wilfullness to support a conviction while constructive knowledge is sufficient under the state statute. However, the Social Security Act does not contain any provision suggesting that Congress intended to exercise sole control over criminal prosecutions for Medicaid fraud. In fact, Title XIX expressly indicates that Congress permits prosecutions under state law.

There was sufficient evidence that the Medicaid claims made by defendants were false and that defendants had knowledge that they were false. The trial court's decision to accept the opinion of the prosecutor's expert over that of the defense was a matter of credibility which cannot be disturbed on appeal. The prosecutor's expert's testimony established that the Medicaid claims were indeed false, and there was sufficient evidence that defendants had actual or constructive knowledge of their falsity.

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Vacated sentence of 47 months to 22 years in prison for perjury.

The trial court committed legal error in finding that OV 19 does not apply to convictions that necessarily involve interference with the administration of justice, such as perjury. OV 19 must be scored for all crimes against public order or public trust, and perjury has been categorized as a public trust offense. If the Legislature intended to score OV 19 at zero points where the defendant is convicted of perjury, it could have written the statute in that manner, as it has done with regard to other offense variables.

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Affirmed conviction of second-degree home invasion and sentence of 10 to 20 years in prison.

The prosecutor presented sufficient evidence that the home defendant broke into was a “dwelling.” Although it was damaged by fire and unoccupied, the inhabitant's intent to use a structure as a place of abode is the primary factor in determining whether it constitutes a dwelling for purposes of the home invasion statute, and the owner testified that he intended to move back into the house after it was repaired. There was sufficient evidence that defendant entered the house with intent to steal copper piping, which was piled up by the stairs.

Defendant's sentence, which was within the guidelines range, was not cruel and unusual. A sentence within the guidelines is presumptively proportionate, and a sentence that is proportionate is not cruel and unusual.

Defendant provided no factual citations or legal authority in support of his list of complaints about his attorney. He failed to meet his burden of establishing ineffective assistance of counsel.

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Reversed conviction of first-degree felony murder predicated on an underlying felony of first-degree child abuse; remanded for new trial.

The trial court abused its discretion by preventing defendant's expert witness and defendant's daughter from testifying about defendant's limited intellectual functioning in order to explain her unusual behavior, which the prosecutor argued as evidence of guilt. Although the trial court could properly exclude evidence of defendant's mental limitations to prove diminished capacity, the fact that evidence is inadmissible for one purpose does not make it inadmissible for other purposes. Defendant was entitled to present the testimony to show that her actions were not evidence of guilt, and that she was easily manipulated into making statements that appeared to reflect a guilty conscience.

The trial court improperly excluded the expert's opinion as being based on hearsay. [MRE 703 requires that facts upon which an expert bases an opinion must be in evidence.] The expert relied on defendant's statements, but those statements could have been offered solely to clarify the basis of the expert's conclusion and not for the truth of the statements. The previous records relied upon by the expert were likely admissible as statements of regularly conducted activity or statements made for the purpose of medical treatment.

Exclusion of the expert's opinion and the daughter's testimony was likely outcome-determinative because a significant part of the prosecutor's case rested on defendant's reactions and statements, which could not be fully evaluated without understanding defendant's intellectual limitations.

The trial court did not deprive defendant of her right to confront a witness by allowing the prosecutor to introduce the witness's videotaped testimony, recorded before the witness was deported. Trial counsel was able to effectively cross-examine the witness on all the relevant issues.

The trial court abused its discretion when it prevented defendant from calling a toxicologist at trial because of the late endorsement of the witness. There was no indication that defendant had engaged in abusive conduct or that the prosecution would be prejudiced by the addition of the toxicologist. The error was not harmless. The trial court prevented defendant from establishing that the level of Imipramine (a drug to prevent bed-wetting that the prosecution claimed defendant used to kill her daughter) in the victim's blood was not sufficient to cause her death.

The trial court committed plain error by preventing defendant's medical examiner from offering his opinion concerning the accuracy of the level of Imipramine in the victim's blood and the accuracy of the calculation of the number of pills that it would take to reach that level. The treatises upon which the doctor's opinion was based did not have to be in evidence because the data represented constants in every case involving Imipramine. Also, the treatises were admissible under MRE 803(24) as they have obtained widely recognized acceptance by the community of experts who use them.

The prosecutor's pathologist was minimally qualified by his experience and training to offer an opinion about whether children of the victim's age commit suicide, and the trial court did not abuse its discretion in ruling this opinion admissible.

The trial court abused its discretion when it allowed the prosecutor to introduce evidence of defendant's alleged prior physical abuse of her children to prove malice and intent. Evidence that protective services had investigated allegations of abuse was admissible to show that defendant had a motive to kill her daughter. However, the danger of unfair prejudice substantially outweighed the probative value of this evidence and its admission was an abuse of discretion.

The trial court properly admitted evidence that defendant was aware that her daughter may have been sexually abused by others in her household and that permitting such abuse could lead to the removal of her children. This evidence was admissible to establish motive. The trial court also properly admitted testimony that defendant's children had been involved in prior accidental doses. This evidence was relevant to show that defendant was aware of the risks of leaving medicine in places that were accessible to children and that defendant was grossly negligent in leaving the Imipramine where her daughter could get to it.

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Affirmed conviction of first-degree premeditated murder in the well-publicized case of defendant's wife's “fall” from a boathouse in Northern Michigan.

The circuit court did not err by conducting a second evidentiary hearing on the admissibility of medical examiner Dragovic's expert testimony after the district court ruled it inadmissible at the preliminary examination. It was within the circuit court's discretion to hold a new Daubert hearing and to make a renewed determination concerning the doctor's qualifications and the admissibility of his opinions.

The district court erred in concluding that Dr. Dragovic was not qualified to testify under MRE 702, and the circuit court did not err in admitting his opinions. The doctor's testimony was based on established methodology in the fields of neuropathology and forensic pathology, and he applied this methodology reliably to the facts of the case. His inability to identify any scientific literature to support his conclusion that the victim must have died as a result of drowning rather than brain trauma, and disagreement by other experts with this conclusion, did not render his opinion unreliable or inadmissible.

The circuit court did not err by allowing the prosecutor to amend the information to reinstate the original charge of first-degree murder after the bindover on second-degree murder. The court was merely permitting the prosecution to correct a variance between the information and the proofs, and there was no unfair surprise or prejudice to defendant.

There was sufficient evidence of first-degree premeditated murder. The manner of death was homicide, defendant had the motive (marital discord) and opportunity (he was alone with the victim on the boathouse balcony), there was evidence of a struggle, the victim had internal injuries consistent with having been kicked, and there was evidence of defendant's consciousness of guilt, including the fact that he was packed and ready to leave before his wife's body had even been removed from the water. A rational jury could have reasonably inferred that defendant moved the victim's body into the water and that she was still alive before being moved, giving defendant sufficient time to “take a second look.”

The jury's verdict was not against the great weight of evidence. Although there was conflicting testimony, the evidence did not preponderate so heavily against the jury's verdict that it would be a miscarriage of justice to allow the verdict to stand.

Defendant was not denied due process when the trial court failed to give individual limiting instructions concerning the testimony of seven different witnesses who testified that the victim had been upset about defendant's drug and gambling additions. Defendant waived review of the issue by approving the court's decision to give one instruction applying to all seven witnesses.

Although some of the prosecutor's comments were improper, any prejudice could have been cured by a timely instruction, and the outcome of the trial was not affected. The prosecutor was free to argue that defense counsel had “bought” the defense expert's testimony, but his argument that the expert witness, as well as defense counsel, had attempted to mislead the jury, and his comment that defense counsel had “re-victimized” the victim were improper. Counsel was not ineffective for failing to object to these comments as declining to object can be consistent with trial strategy.

The trial court did not err in denying defendant's motion to suppress the evidence seized from his house. A reasonably cautious person could have concluded that there was a substantial basis for the magistrate's finding of probable cause for the search and, although the affidavit was not overly detailed, the warrant was not so general or so lacking in particularity as to be deficient. The officers were adequately limited to searching for “evidence of homicide” only.

Defendant was not denied his right to present a defense by the trial court's decision to admit some of the defense expert's computer animations but to exclude others. The excluded animations were based in part on the expert's speculation that the victim may have violently convulsed, causing her body to involuntarily move into the lake. The witness had no expertise or special knowledge in the field of neurology or seizures, and the medical testimony at trial indicated that this scenario was highly unlikely.

Dr. Dragovic's opinion that the victim was pushed or punched over the deck railing was not beyond his expertise as a forensic examiner and the trial court did not err by allowing him to so testify. A forensic pathologist may testify as an expert concerning both the cause and manner of a victim's death.

Trial counsel was not ineffective for failing to move for a change of venue. There was no evidence that the media coverage was invidious or inflammatory and no indication that the community was inundated with adverse or prejudicial publicity. Nor was counsel ineffective for failing to object to the jury view as the scene was sufficiently similar to assist the jury in understanding important concepts. Counsel was not ineffective for failing to object to autopsy photographs which were necessary to illustrate the complex medical testimony. Counsel was not ineffective for failing to challenge a juror; based on his experience, trial counsel “surely believed that he had attained a reasonable, fair, and honest jury.”

The trial court did not deny defendant a fair trial when it failed to remove a juror who had expressed his doubts in a note to the judge about the testimony of the defense expert. The court instructed the jury to keep an open mind, and not to conduct any experiments or demonstrations on its own. The juror confirmed that he had not made up his mind and would consider his fellow jurors' opinions while deliberating.

The office of the attorney general did not improperly intervene in this case. There was no showing that its intervention was “clearly inimical to the public interest.”

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Affirmed trial court order denying defendant's petition to be removed from the sex offender registry.

Where a defendant's criminal sexual conduct offense involves the aggravating factors of force or coercion, the Legislature has denied reviewing courts the authority to remove the requirement to register as a sex offender. Defendant was eligible to petition the court as he was only 11 at the time of the offense, but the trial court determined that he used force or coercion. This finding was not clearly erroneous where defendant was in a position of authority over the significantly younger victim, performed fellatio and anal penetration, and told the victim not to tell. The trial court indicated that defendant used deception and manipulation, supporting the finding that defendant used coercion to accomplish the sexual contact.

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Affirmed convictions of delivery of marijuana, possession with intent to deliver marijuana, and felony firearm; affirmed concurrent terms of four to eight years, plus two years in prison.

The trial court did not base its upward departure from the sentencing guidelines on defendant's refusal to admit that he threatened police officers. The court merely attempted to explain that, based on its experience with similar matters, it found the officers' statements to be credible and defendant's denials to be incredible.

Because no reasonable reader of defendant's presentence report could mistake the probation agent's statement concerning defendant's “level of paranoia” as a clinical diagnosis, and because defendant's statements supported that characterization, the trial court did not err in refusing to strike the comment.

Defendant was not denied his right of confrontation when the trial court allowed a police officer to testify to hearsay evidence concerning alleged threats made by defendant against other police officers. The right to confront adverse witnesses does not apply at sentencing, and defendant was afforded an adequate opportunity to respond to the accusations.

Trial counsel was not ineffective for failing to interview and call witnesses at trial who could have testified that defendant did not threaten police officers during the search of his home. Any minimal prejudice caused by the officers' testimony concerning the threats did not affect the outcome of the trial. Failure to present defendant's witnesses at sentencing was harmless and “the trial court would not have been persuaded” by their testimony.

Appellate counsel was not ineffective for failing to raise the issue of ineffectiveness of trial counsel on appeal. Appellate counsel may winnow out weaker arguments in order to focus on more substantial issues, and appellate counsel could have reasonably concluded that this issue did not warrant appellate consideration.

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Reversed order setting aside respondent's adjudications of responsibility.

The trial court erred in granting respondent's application for a set aside. The statute, MCL 712A18(e), provides that a juvenile offender who was adjudicated responsible for more than one offense is not eligible to have his adjudication set aside. The trial court erred in finding that multiple counts in a juvenile petition are considered one adjudication. The express language of the statute provides that “set aside” eligibility depends upon the number of offenses for which a juvenile has been found responsible. Respondent committed two separate offenses, and he was therefore not entitled to relief pursuant to MCL 712A.18(e).

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Affirmed in part, reversed in part, remanded.

Defendant did not knowingly and voluntarily waive his right to a jury trial as a juvenile in adult court. The trial court erred in relying on the advice given by the hearing referee at the designation arraignment. The referee did not make it clear that the rights of an adult included the right to a jury trial, and his advice that Defendant had a right to a trial that “can include” a jury was not the same as advising him of his constitutional right to a jury trial.

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