People v. Zitka

• Decision Date: 10 December 2020
• Docket Number: No. 349491, No. 349494,349491
• Citation: 335 Mich.App. 324,966 N.W.2d 786
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bruce H. ZITKA, Defendant-Appellant. People of the State of Michigan, Plaintiff-Appellee, v. Susan K. Hernandez-Zitka, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

335 Mich.App. 324

966 N.W.2d 786

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Bruce H. ZITKA, Defendant-Appellant.

People of the State of Michigan, Plaintiff-Appellee,

v.Susan K. Hernandez-Zitka, Defendant-Appellant.

No. 349491

No. 349494

Court of Appeals of Michigan.

Submitted November 9, 2020, at Lansing.

Decided December 10, 2020

Approved for publication January 7, 2021, 9:05 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Daniel Ping and Geofrey C. M. Bilabaye, Assistant Attorneys General, for the people.

John G. Zevalking for Bruce H. Zitka.

Ronald D. Ambrose for Susan K. Hernandez-Zitka.

Before: Markey, P.J., and Meter and Gadola, JJ.

Per Curiam.

Defendants, Bruce H. Zitka and Susan K. Hernandez-Zitka,¹ each appeal as of right their convictions, following a joint jury trial, of three counts of conducting an unlicensed gambling operation, MCL 432.218(1)(a), and three counts of using a computer to commit a crime, MCL 752.796 and MCL 752.797(3)(e). The trial court sentenced both defendants to five years’ probation, with one year to be served in jail, subject to suspension upon successful completion of probation. In both appeals, we affirm.

This case was previously before this Court when the prosecution appealed an order granting defendants’ motion to quash and dismissing all charges. The trial court, relying on the outcome of an earlier civil lawsuit brought by the Norton Shores city attorney in a civil nuisance-abatement action, ruled that the prosecution was collaterally estopped from bringing this criminal action. This Court reversed that decision and remanded the case to the trial court. People v. Zitka , 325 Mich. App. 38, 53, 922 N.W.2d 696 (2018). This Court's prior decision provides the following summary of the relevant background facts that led to the civil litigation:

Defendants own and operate three Internet lounges located in Muskegon County: The Landing Strip, The Lucky Mouse, and Fast Lane. At these establishments, customers can open accounts to wager on and play games online, including slot and lottery-type games. On April 14, 2015, the Michigan Gaming Control Board (MGCB) began an investigation to determine whether illegal gambling activities were taking place at the lounges. The MGCB interrupted this investigation, however, when the Norton Shores Police Department began its own independent investigation of allegations that unlawful gambling activities were taking place at The Landing Strip. The city attorney for Norton Shores subsequently filed in the Muskegon Circuit Court a civil-nuisance-abatement action against The Landing Strip under the local zoning code. The parties ultimately agreed to dismissal of that case, and the court entered a stipulated order of dismissal on January 28, 2016, stating in part, "Defendants agree to operate the Landing Strip LLC without violation of any applicable gambling laws or ordinances as it is currently operating. " (Emphasis added.)

Following the conclusion of the civil lawsuit, the MGCB resumed its investigation of the three lounges in February 2016. As a result of this investigation, defendants were each charged with three counts of conducting a gambling operation without a license, MCL 432.218(1)(a), and three counts of using a computer to commit a crime, MCL 752.796 and MCL 752.797(3)(e). The amended information alleges an offense period extending from February 1, 2016, through October 31, 2016. The district court conducted a two-day preliminary examination and, on January 27, 2017, issued an opinion and order determining that probable cause supported the charges and binding over the cases to the Ingham Circuit Court. In reaching this conclusion, the district court determined that the offense of using a computer to commit a crime, MCL 752.796 and MCL 752.797(3)(e), is a specific-intent crime, while conducting a gambling operation without a license, MCL 432.218(1)(a), constitutes a general-intent crime. With respect to the Muskegon Circuit Court's stipulated order of dismissal, the district court was "not persuaded that the ... [order], in a civil proceeding, is particularly helpful here in relation to the probable cause standard."

In the Ingham Circuit Court, defendants filed identical motions to quash, arguing that the district court erred by determining that the offense of conducting a gambling operation without a license was a general-intent crime as opposed to a specific-intent crime. Defendants further asserted that because the stipulated order dismissing the civil case reflected a judicial determination that defendants were operating legally, defendants were acting under a mistake of law that negated the mens rea elements of both offenses. The circuit court granted defendants’ motions to quash and stated on the record as follows:

My opinion is based upon the fact that the Attorney General of this state, in part, has the authority to intervene in any litigation that they want to that would be something that relates to state law, I believe they could have gone back to the circuit judge in this case and asked to intervene and have this reargued in some fashion as to its applicability.

This appears to be a situation where apparently the Attorney General's office and their other agencies were so aggrieved by these poor people that they felt it necessary to investigate for months and months as to whether they existed. They could have walked right in and seen. But in my opinion, when a circuit judge of—is it Muskegon?

* * *

... [The Muskegon Circuit Court judge] has the right to make these rulings and put these rulings in effect. But as I have seen in my cases, I have been chastised. I have been appealed. I have even had people come in here and consent to things and your office appealed that because the consent was wrong. I am just amazed. These cases are dismissed. [ Zitka , 325 Mich. App. at 41-43, 922 N.W.2d 696.]

On appeal, this Court held that the circuit court abused its discretion by determining that the state's criminal charges were barred by collateral estoppel. Id. at 47, 922 N.W.2d 696. This Court reasoned that the two proceedings were not substantially similar and that the state attorney general was not in privity with the city attorney. Id. at 45-47, 922 N.W.2d 696. It also stated that the purposes of the two proceedings were " ‘fundamentally different,’ " which is a recognized basis for declining to apply collateral estoppel. Id. at 47, 922 N.W.2d 696 (citation omitted).

In its analysis of the relevant statutes, this Court stated that the language of MCL 432.218(1)(a) indicated that conducting an unlicensed gambling operation was a general-intent crime, as opposed to a specific-intent crime. Id. at 50-51, 922 N.W.2d 696. This Court then held that defendants’ defenses of mistake of law and entrapment by estoppel were not applicable. Id. at 52, 922 N.W.2d 696. This Court specifically held that defendants’ mistake-of-law argument had "no effect" on the charges of conducting an unlicensed gambling operation because it was a general-intent crime. Id. In particular, this Court concluded that "[d]efendants ... need not have intended to violate the law but rather simply have intended to perform the act of ‘conducting’ an unlicensed gambling operation" and that "defendants’ alleged belief that they were operating their establishments in compliance with the law is immaterial to a determination of whether they committed this offense." Id. This Court also held that defendants’ argument was "equally unavailing with respect to the specific-intent charges brought under MCL 752.796 and MCL 752.797(3)(e)." Id. This Court noted that entrapment by estoppel and mistake of law "both require that the alleged reliance on a public official's representation be ‘reasonable’ or ‘justified’ " and that "[d]efendants are unable to meet this requirement." Id. at 52-53, 922 N.W.2d 696. Accordingly, this Court reversed the trial court's dismissal order and remanded for further proceedings. Id. at 53, 922 N.W.2d 696.

On remand, defendants moved to admit evidence of the Norton Shores investigation and the results of that civil lawsuit. Defendants argued that this evidence was necessary to defend against the charges, even though this Court had ruled that MCL 432.218(1)(a) was a general-intent crime and that it was unnecessary to show that defendants intended to violate the law. The trial court denied defendants’ motion, ruling that the evidence was not admissible in light of this Court's decision in Zitka . Following a joint jury trial, the jury found both defendants guilty of three counts each of conducting an unlicensed gambling operation and three counts of using a computer to commit a crime. Defendants now appeal.

I. ADMISSIBILITY OF THE CIVIL LITIGATION

Defendants argue that the trial court abused its discretion and violated their constitutional right to present a defense by excluding evidence related to the previous civil lawsuit at their criminal trial. In particular, they argue that the dismissal order in the civil lawsuit was admissible to show that they believed they were acting in compliance with the law. We disagree.

"The decision whether to admit evidence is within a trial court's discretion." People v. Katt , 468 Mich. 272, 278, 662 N.W.2d 12 (2003). "An abuse of discretion occurs when a trial court's decision falls outside the range of reasonable and principled outcomes." People v. Johnson , 502 Mich. 541, 564, 918 N.W.2d 676 (2018) (quotation marks and citation omitted). "A trial court also necessarily abuses its discretion when it makes an error of law." People v. Al-Shara , 311 Mich. App. 560, 566, 876 N.W.2d 826 (2015). "To the extent that a trial court's ruling ... involves an interpretation of the law or the application of a constitutional standard to uncontested facts, our review is de novo." People v. Tanner , 496 Mich. 199, 206, 853 N.W.2d 653 (2014) (quotation marks and citation omitted). Likewise, "[t]his Court reviews de...