People v. Warner

• Decision Date: 07 October 2021
• Docket Number: 351791
• Citation: 339 Mich.App. 125,981 N.W.2d 733
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Damon Earl WARNER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

339 Mich.App. 125

981 N.W.2d 733

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Damon Earl WARNER, Defendant-Appellant.

No. 351791

Court of Appeals of Michigan.

Submitted May 12, 2021, at Lansing.

Decided October 7, 2021, 9:00 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Douglas R. Lloyd, Prosecuting Attorney, and Brent E. Morton, Senior Assistant Prosecuting Attorney, for the people.

Daniel D. Bremer, Burton, for defendant.

Before: Cameron, P.J., and Borrello and Redford, JJ.

Cameron, P.J. Defendant, Damon Earl Warner, appeals his jury-trial conviction of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(b)(i ). Defendant was sentenced as a third-offense habitual offender, MCL 769.11, to 20 to 40 years’ imprisonment. We affirm.

I. BACKGROUND

Defendant was convicted of CSC-I for assaulting his 13-year-old stepdaughter. According to the victim, defendant first assaulted her sometime in 2011 while she was sitting on her bed. She testified that defendant "pulled down [her] pants and tried sticking his penis into [her] vagina." The victim was unable to remember certain details, but she was clear that defendant did not penetrate her vagina with his penis during this assault. A few months later, the victim alleged that defendant assaulted her again, this time in the dining room. During this assault, defendant approached the victim from behind and put his hand in her pants. Defendant digitally penetrated the victim when his hand went "up into [her] vagina."

In December 2015, the victim told her mother that defendant had sexually assaulted her. The disclosure occurred during an argument, and the victim's mother did not believe the victim. The victim's mother called the victim's father and told him to come pick up the victim. When the victim's father arrived, the victim and her mother were standing outside. The victim was upset and did not want to go with her father. At some point, defendant came outside and threatened the victim, informing her that he was going to slit her throat. The victim eventually left with her father and, from that point forward, the victim lived with her father full time.

Three days later, the victim told her father and her stepmother that defendant had sexually assaulted her. However, law enforcement was not notified until early January 2016, after the victim reported the assaults to her guidance counselor at school. Detective James Maltby was assigned to the investigation and arranged for defendant to be interviewed by Detective Sergeant Derrick Jordan. During that interview, defendant admitted to penetrating the victim's vagina with four of his fingers. Defendant explained that he did so at the urging of the victim and only after she placed his hand in her pants while they were "wrestling around[.]" Defendant was not arrested at that time. Several days later, Detective Maltby interviewed defendant.

In August 2016, defendant was arrested and charged with CSC-I and second-degree criminal sexual conduct (CSC-II), MCL 750.520c, for his alleged conduct in the bedroom and the dining room. In defendant's first jury trial, he was convicted of CSC-II. The jury was unable to reach a verdict as to the charge of CSC-I. Defendant was sentenced, as a fourth-offense habitual offender, MCL 769.12, to 10 to 30 years’ imprisonment for CSC-II. After sentencing, the prosecutor decided not to retry defendant for CSC-I; therefore, the prosecutor moved to dismiss, or nolle prosequi , the CSC-I charge. On August 14, 2017, the trial court granted the prosecutor's motion and dismissed the CSC-I charge without prejudice.

Several years later, this Court granted defendant a new trial after he successfully appealed his CSC-II conviction. People v. Warner , unpublished per curiam opinion of the Court of Appeals, issued March 21, 2019 (Docket No. 340272), p. 6, 2019 WL 1301760.¹ We therefore remanded the CSC-II charge to the trial court to schedule a new trial. Id.

After defendant's new trial date was scheduled, the prosecutor moved the trial court to amend the information to reinstate the CSC-I charge that had been dismissed. The prosecutor explained that she had only sought dismissal of the CSC-I charge "[b]ased on the sentence imposed by [the trial court]" and "in consultation with the victim. ..."² The trial court granted the motion to amend the information, and the CSC-I charge was reinstated over defendant's objections.

The parties also addressed several pretrial issues relevant to this appeal. The prosecutor provided notice that she had retained Thomas Cottrell, an expert in the dynamics of child sexual abuse, to "explain delayed report[ing] of child sexual abuse victims, the process of child sexual abuse disclosure, and perpetrator grooming behavior." The prosecutor provided defendant a summary of Cottrell's expected testimony. Defendant moved the trial court to appoint him an expert concerning false confessions and to conduct an in camera inspection of the victim's medical and psychological records. The trial court denied both of defendant's motions.

Defended fared worse at his second jury trial. Specifically, he was convicted of CSC-I and acquitted of CSC-II. The guidelines minimum sentence range for defendant's CSC-I conviction was 51 to 127 months’ imprisonment. The trial court departed from the advisory sentencing guidelines range and sentenced defendant to 20 to 40 years’ imprisonment. This appeal followed.

II. REINSTATEMENT OF THE CSC-I CHARGE

Defendant first argues that the trial court erred by granting the prosecutor's motion to reinstate the CSC-I charge that had been dismissed after his first trial. Defendant argues that after a charge is dismissed at the prosecutor's request, that charge can only be reinstated by the prosecutor's filing a new indictment in district court. Because the prosecutor did not follow this procedure, defendant asserts that he is entitled to another new trial. We disagree. The trial court properly granted the prosecutor's motion to amend the information.

"The interpretation of either a statute or a court rule is a question of law subject to review de novo. A trial court's decision to grant or deny a motion to amend an information is reviewed for an abuse of discretion." People v. McGee , 258 Mich.App. 683, 686-687, 672 N.W.2d 191 (2003) (citations omitted). "An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." People v. Unger , 278 Mich.App. 210, 217, 749 N.W.2d 272 (2008).

In this case, defendant's first jury convicted him of CSC-II. After defendant was sentenced to prison for CSC-II, the prosecutor moved to dismiss the CSC-I charge that was still pending and the trial court entered the prosecutor's proposed nolle prosequi order of dismissal. Thereafter, this Court reversed defendant's CSC-II conviction and remanded the CSC-II charge for a new trial. Warner , unpub. op. at 6. Before trial, the prosecutor moved the trial court to amend the information to include the charge of CSC-I pursuant to MCR 6.112(H). The trial court granted the motion over defendant's objection, concluding that the court could properly amend the information and reinstate the CSC-I count.

Defendant does not directly address the prosecution's argument that the amendment to the information was proper under MCR 6.112(H). Instead, defendant relies on MCL 767.29 and related caselaw to support his argument that after a nolle prosequi is sought and entered, the dismissed charge can only be reinstated through a new indictment in district court, not by amendment. MCL 767.29 provides, in relevant part:

A prosecuting attorney shall not enter a nolle prosequi upon an indictment, or discontinue or abandon the indictment, without stating on the record the reasons for the discontinuance or abandonment and without the leave of the court having jurisdiction to try the offense charged, entered in its minutes.

Defendant's argument relies heavily on People v. Curtis , 389 Mich. 698, 706, 209 N.W.2d 243 (1973), in which our Supreme Court considered the language of a prior version of MCL 767.29³ and indicated that a prosecuting attorney who secures a nolle prosequi after an indictment must "obtain a new indictment and begin proceedings anew if [the prosecutor] wish[es] to reinstate the original charge." The Curtis Court further stated that, under the statute, a prosecutor is not permitted "to retract a nolle prosequi and immediately proceed to trial on the same indictment." Id. This procedure was later recognized by this Court in People v. Ostafin , 112 Mich.App. 712, 716, 317 N.W.2d 235 (1982), in which we held that "the prosecution must begin proceedings anew after entry of an order of nolle prosequi, and may not merely seek to reinstate a previous indictment or conviction." The holding in Ostafin was based on Curtis . Id.

In this case, the prosecutor did not begin the proceedings anew by filing a new indictment in district court. Instead, the prosecutor successfully moved to amend the information in circuit court under MCR 6.112(H). MCR 6.112(H) provides that "[t]he court before, during, or after trial may permit the prosecutor to amend the information ... unless the proposed amendment would unfairly surprise or prejudice the defendant." Importantly, under MCR 6.112(H), an information can be amended to charge a new crime. McGee , 258 Mich.App. at 689-690, 672 N.W.2d 191.⁴ Therefore, the question presented is which procedure must be followed when a prosecutor decides to reinstate a charge that was dismissed without prejudice pursuant to an order of nolle prosequi.

"Under our Constitution, the Supreme Court's rule-making power in matters of court practice and procedure is superior to that of the Legislature." People v. Parrott , 335 Mich. App. 648, 667, 968 N.W.2d 548 (2021) (quotation marks and citation omitted). Our Supreme Court's authority to determine rules of practice and procedure in the courts of this...