# People of Michigan v. Joel Hosea Harding

> Michigan Court of Appeals · July 10, 2025

URL: https://www.frixlaw.com/law-library/cases/11093494

## Case

- **Court:** Michigan Court of Appeals
- **Decided:** July 10, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11093494

## How later opinions describe it (automated extraction)

- applying the same rationale to a criminal sexual conduct case

## Opinion text

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 10, 2025
Plaintiff-Appellee, 11:38 AM

v No. 366367
Macomb Circuit Court
JOEL HOSEA HARDING, LC No. 2021-002541-FH

Defendant-Appellant.

Before: MALDONADO, P.J., and BOONSTRA and WALLACE, JJ.

PER CURIAM.

Defendant appeals as of right his jury-trial convictions of five counts of third-degree
criminal sexual conduct (CSC-III), MCL 750.520d(1)(d) (incest). Defendant was sentenced, as a
third-offense habitual offender, MCL 769.11, to 10 to 30 years’ imprisonment for each CSC-III
conviction. We affirm.

I. FACTUAL BACKGROUND

This case involves several incidents of sexual intercourse between defendant and the
complainant, JH, who is defendant’s adult daughter, both before and while defendant was living
with JH in her home. By way of background, defendant sexually assaulted JH several times during
her childhood. The incidents were eventually reported to the authorities. Defendant was convicted
of second-degree criminal sexual conduct (CSC-II) in relation to those sexual assaults and
imprisoned. He was released before the events giving rise to the present prosecution and appeal.

In early 2019, defendant sent JH, who was by that time an adult, a letter. JH was “worried”
and “a little afraid” when she received the letter, after years of no contact with defendant, but
nevertheless decided to respond. The two made plans to meet in person and have dinner. During
the dinner, the two “just talked,” which JH testified felt “fine.” On a second occasion, JH picked
up defendant and brought him to her condominium where they watched a movie. During this
encounter, defendant and JH began kissing and then had penile-vaginal intercourse. Eventually,
defendant moved into JH’s condominium. JH explained at trial that she invited defendant to move
in with her “[t]o have my dad back.” She believed she was in love with defendant, and the two
continued to have sexual intercourse with each other. They also shared a bedroom.

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JH eventually decided to purchase a larger single-family home. She felt she needed space
from defendant. JH set up her bedroom in the finished basement, and defendant lived on the main
level of the home. JH’s feelings about the relationship began to change around the time of the
COVID-19 pandemic. When JH informed defendant that she did not want to continue a sexual
relationship with him, he would not leave her alone, forcing her to install a lock on the basement
door to keep him out. Nevertheless, defendant broke the lock to get inside the basement. In
October 2020, JH rented a motel room to get away from defendant. While JH was at the motel,
defendant sent her many text messages, including some threatening to kill himself.

JH and defendant had sexual intercourse one final time in November 2020. JH was
drinking alcohol and took an Ambien to help her cope with the stress of her situation. She recalled
that defendant “tried to coerce” her into having sex, and she attempted to push him off her. She
does not recall what happened next, but knew the next morning that they engaged in sexual
intercourse the night before. Defendant then moved out of JH’s home, and within a few months,
JH reported him to the police.

At trial, social worker James Henry, Ph.D., testified as an expert in “child sexual abuse and
trauma.” Dr. Henry explained that trauma affects people through the stages of life, including into
adulthood. He testified that a trauma bond occurs when there is harm in a relationship. The
relationship develops on the basis of fear and the requirement to meet the parent’s needs to survive.
Even as an adult, when an individual reunites with a family member they have not seen in some
time who committed abuse on the individual during childhood, that individual can revert to acting
like a young child again or begin to romanticize the parent-child relationship.

Around the time he moved out of JH’s home, defendant’s behavior was brought to the
attention of Macomb County Adult Protective Services, and guardianship and mental-health
treatment matters were opened in the probate court. Defendant, who had a mental-health history,
was hospitalized for mental-health treatment in December 2020 before receiving additional
mental-health treatment in jail pending the charges in this case.

Defendant was charged with five counts of CSC-III. Defendant underwent two
competency examinations through the Center for Forensic Psychiatry (CFP). CFP psychologist
Margo Gilbert, Ph.D., concluded defendant was competent to stand trial and could be found
criminally responsible. She explained that defendant “was not laboring under a mental condition
such that he was incapable of understanding the nature and object of the proceedings against him
or of assisting in his defense in a rational manner.”

During the pretrial proceedings, the prosecution filed a notice of intent to introduce other-
acts evidence under MCL 768.27b and MRE 404(b) in relation to defendant’s prior CSC-II
conviction. Defendant argued that the evidence was improper character evidence under MRE
404(a), and that, for purposes of MRE 403, the danger of unfair prejudice would substantially
outweigh the probative value of the evidence. The trial court ruled that the other-acts evidence
was relevant and admissible. Thus, the jury heard about defendant’s prior conduct and received
evidence of his CSC-II conviction.

The issue of defendant’s competency to stand trial also arose several times during the
pretrial proceedings after defendant made bizarre statements and engaged in disruptive behavior

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at several points. Defense counsel requested an independent competency and culpability
examination, which the court ordered. Following a lengthy administrative delay attributable to the
examiner’s schedule, defendant was independently evaluated by psychologist Michael Abramsky,
Ph.D., in December 2022. In his report, Dr. Abramsky concluded that defendant was competent
to stand trial and could be found criminally responsible.

During an early January 2023 pretrial hearing, defense counsel stated defendant was not
contesting competency or culpability because of the results of the independent examination.1 The
court found defendant competent and able to be found criminally responsible. At the start of trial,
defendant made several bizarre statements, including the following: “I have what I believe to be a
microchip under my fingernail. It wasn’t there before.” He added: “I am under unlawful
surveillance and eavesdropping. I’m being attacked by an electric magnetic weapon. I can’t
escape from that.” The court declined to consider these statements as evidence that defendant
required yet another competency examination, explaining as follows:

I’m satisfied and I’m looking at—and in this Court—the Court is also satisfied with
your mental competency. In this case, we’ve done multiple competency
examinations. You’ve had competence reviewed by both the State and your own
personal expert, all of which have come back and said you are competent to stand
trial. And so this Court is satisfied with your competency.

Defendant remarked as follows:

And I want to say this and I just brought this up. Right now because of the
way that I feel and I can say that it has also been found by numerous cases that a
person can be incompetent at any phase of the hearings. Right now I don’t have
the wherewithal to withstand the emotional pressure of a trial. So—

The proceedings continued, and on the second day of trial, the prosecutor moved to
preclude any reference at trial to defendant’s mental illness, hospitalizations for mental illness, or
related mental-illness treatment, and the guardianship. The trial court agreed that the evidence
was not relevant to any issue at trial because defendant was competent and could be found
criminally responsible. Defendant waived his right to testify, and the defense presented no other
witnesses or evidence. After deliberating, the jury found defendant guilty of all five counts of
CSC-III.

Defendant was sentenced as stated earlier and this appeal followed. While the case was on
appeal, but before defendant’s appellate brief was due in this matter, defendant moved to remand
the case to the trial court for a new trial or an evidentiary hearing to expand the record. He also
filed a pro se motion to remand. This Court denied both motions to remand for failure to persuade
the Court of the need for a remand at that time. People v Harding, unpublished order of the Court
of Appeals, entered May 23, 2024 (Docket No. 366367). However, this Court noted that the denial

1
The record shows that defense counsel’s statement about not contesting “culpability” was
intended to communicate that he was not contesting the fact that, pursuant to the above-referenced
reports, defendant could legally be found culpable, i.e., could be found criminally responsible.

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was without prejudice, and granted defendant’s request to submit to this Court the exhibits attached
to his brief on appeal. Id.

II. INSANITY DEFENSE

Defendant first argues on appeal that the trial court erred by prohibiting any mention at
trial of defendant’s mental illness, hospitalizations, guardianship, or treatment, which effectively
prevented him from raising a not guilty by reason of insanity (NGRI) defense. He adds that defense
counsel was ineffective because he failed to pursue an NGRI defense. We disagree with both
arguments.

To present an NGRI defense to the trial court, the defendant must file and serve a written
notice of his intention to assert an NGRI defense 30 days before the trial date, or at another time
that the court directs. MCL 768.20a(1). If the defendant fails to file and serve the notice, then the
court must exclude evidence offered to establish an insanity defense. MCL 768.21(1). There is
no dispute that defendant did not file the notice of intent necessary to raise an insanity defense in
the trial court. In fact, defendant’s attorney clarified for the record after receiving the results of an
independent psychological examination that he was not going to raise an NGRI defense. Counsel’s
statement constituted a waiver of the issue. Waiver is defined “as the intentional relinquishment
or abandonment of a known right.” People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000)
(quotation marks and citation omitted). “ ‘One who waives his rights under a rule may not then
seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished any
error.’ ” Id. (citation omitted). Nevertheless, considering defendant has a related ineffective-
assistance claim, we will briefly address the merits of his potential NGRI defense. To the extent
defendant also raises a due-process argument about his NGRI defense, a defendant preserves
claims of constitutional error by presenting them to the trial court. People v King, 297 Mich App
465, 472; 824 NW2d 258 (2012). Defendant did not present a constitutional argument in the trial
court, rendering it unpreserved. See id.

Regarding defendant’s broader challenge to the court’s preclusion of evidence about his
mental illness, “[t]o preserve an evidentiary issue for review, a party opposing the admission of
evidence must object at trial and specify the same ground for objection that it asserts on appeal.”
People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). On the second day of trial, the
prosecutor moved in limine to preclude any references to defendant’s mental illness,
hospitalizations, treatment, or guardianship. Defense counsel did not oppose the motion, but
pointed out that defendant raised an NGRI defense at some point in the proceedings. The trial
court addressed the issue on the record and ruled that any evidence bearing on defendant’s mental
health would not be admitted at trial. Therefore, because the objection was raised at trial on the
same ground at issue in this appeal, this evidentiary issue is preserved. See id.

A defendant preserves the issue of ineffective assistance of counsel by moving the trial
court for a new trial, People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012), or by moving
this Court to remand the case for a Ginther2 hearing, People v Abcumby-Blair, 335 Mich App 210,

2
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

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227; 966 NW2d 437 (2020). There is no dispute defendant did not move for a new trial or Ginther
hearing. Defendant’s motion to remand in this Court incorporated a broad request to remand for
a Ginther hearing, but defendant’s argument on ineffective assistance related to another topic and
did not raise this issue. Therefore, this issue is unpreserved. See id.

The issue whether a defendant was denied his right to present a defense is ordinarily a
question of law that we review de novo. King, 297 Mich App at 472. However, defendant did not
preserve the issue for appellate review. So we review the claim for plain error affecting
defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). “To
avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have
occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial
rights.” Id. The third prong of this test requires a showing of prejudice, meaning that the error
affected the outcome in the trial court. Id. “Reversal is warranted only when the plain, forfeited
error resulted in the conviction of an actually innocent defendant or when an error seriously
affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the
defendant’s innocence.” Id. at 763-764. (quotation marks and citation omitted; alteration in
original).

Regarding defendant’s challenge to the court’s preclusion of evidence about his mental
health, we review evidentiary issues for an abuse of discretion. People v Benton, 294 Mich App
191, 195; 817 NW2d 191 (2011). An abuse of discretion occurs when the trial court’s ruling falls
outside the range of reasonable and principled outcomes. People v Babcock, 469 Mich 247, 270;
666 NW2d 231 (2003). Decisions regarding the admissibility of evidence often involve
preliminary questions of law, such as whether a statue or rule of evidence precludes admissibility
of the evidence, and we review questions of law de novo. People v Lukity, 460 Mich 484, 488;
596 NW2d 607 (1999); People v Galloway, 335 Mich App 629, 637; 967 NW2d 908 (2021).

A claim of ineffective assistance of counsel involves a mixed question of fact and
constitutional law. People v Isrow, 339 Mich App 522, 531; 984 NW2d 528 (2021). We review
the trial court’s findings of fact for clear error, and the legal questions involved de novo. Id. Clear
error occurs when this Court is left with a definite and firm conviction that a mistake was made.
Id. We review unpreserved claims of ineffective assistance of counsel for errors apparent on the
record. People v Hoang, 328 Mich App 45, 63; 935 NW2d 396 (2019).

A criminal defendant has a state and federal constitutional right to a meaningful
opportunity to present a complete defense in the case. King, 297 Mich App at 473. But that right
is subject to reasonable restrictions as required to advance the legitimate interests in the criminal-
trial process. Id. More specifically, a criminal defendant must follow the rules of criminal
procedure and evidence. Id. at 474. Moreover, the restrictions on presenting evidence outlined in
the Michigan Rules of Evidence do not violate the defendant’s right to present a defense as long
as those rules are not “arbitrary” or “disproportionate to the purposes they are designed to serve.”
People v Unger, 278 Mich App 210, 250; 749 NW2d 272 (2008) (quotation marks and citation
omitted). In other words, the defendant’s right to present a defense “extends only to relevant and
admissible evidence.” People v Solloway, 316 Mich App 174, 198; 891 NW2d 255 (2016)
(quotation marks and citation omitted). A criminal defendant also has the right to a trial by jury,
which can only be waived through the defendant’s knowing and voluntary waiver. People v Cook,
285 Mich App 420, 422; 776 NW2d 164 (2009). A defendant is entitled to a presumption of

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innocence throughout the proceedings until the prosecution proves he is guilty beyond a reasonable
doubt. People v Beck, 504 Mich 605, 621; 939 NW2d 213 (2019).

Legal insanity is a recognized affirmative defense in Michigan. People v Carpenter, 464
Mich 223, 230-231; 627 NW2d 276 (2001). See also MCL 768.21a(1). The Legislature has
defined the term “legally insane” to mean:

if, as a result of mental illness as defined in . . . MCL 330.1400, or as a result of
having an intellectual disability as defined in . . . MCL 330.1100b, that person lacks
substantial capacity either to appreciate the nature and quality or the wrongfulness
of his or her conduct or to conform his or her conduct to the requirements of the
law. [MCL 768.21a(1).]

However, “[m]ental illness or having an intellectual disability does not otherwise constitute a
defense of legal insanity.” Id. The defendant bears the burden of proving the NGRI defense by a
preponderance of the evidence. MCL 768.21a(3).

Typically, a defendant files a notice of intent to offer an NGRI defense at trial within the
time frame discussed above. MCL 768.20a(1). Upon receiving the notice of intent, the court then
orders a CFP examination. MCL 768.20a(2). The defendant may also secure an independent
evaluation. MCL 768.20a(3). The evaluators will then prepare reports and submit them to the
attorneys. MCL 768.20a(6). The prosecution may file and serve a notice of rebuttal of the NGRI
defense. MCL 768.20a(7). When the defendant has asserted an NGRI defense in a criminal matter
tried before a jury, the judge must instruct the jury on the law relevant to the insanity defense.
MCL 768.29a(1). Additionally,

[a]t the conclusion of the trial, where warranted by the evidence, the charge to the
jury shall contain instructions that it shall consider separately the issues of the
presence or absence of mental illness and the presence or absence of legal insanity
and shall also contain instructions as to the verdicts of guilty, guilty but mentally
ill, not guilty by reason of insanity, and not guilty with regard to the offense or
offenses charged and, as required by law, any lesser included offenses. [MCL
768.29a(2) (emphasis added).]

Alternatively, the Legislature has provided that when the defendant has asserted an NGRI
defense, the jury may find the defendant “ ‘guilty but mentally ill’ ” (GBMI) if it finds the
following:

(a) The defendant is guilty beyond a reasonable doubt of an offense.

(b) The defendant has proven by a preponderance of the evidence that he or
she was mentally ill at the time of the commission of that offense.

(c) The defendant has not established by a preponderance of the evidence
that he or she lacked the substantial capacity either to appreciate the nature and
quality or the wrongfulness of his or her conduct or to conform his or her conduct
to the requirements of the law. [MCL 768.36(1).]

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The critical issue here is whether the NGRI instruction (and by extension, the GBMI
instruction) was warranted by the evidence. See MCL 768.29a(2). Our Supreme Court has
clarified that the NGRI defense is an “all or nothing” defense, and a defendant may not avoid
criminal responsibility or negate a showing of specific intent by presenting evidence of some form
of mental incapacity short of meeting the requirements of the NGRI defense (i.e., by establishing
a mental illness but not demonstrating a lack of substantial capacity). Carpenter, 464 Mich at 237.
Michigan also does not recognize a “diminished capacity” defense. See id. at 237, 239. The phrase
“criminal responsibility” in this context generally refers to the defendant’s ability to be relieved of
all criminal responsibility through the NGRI defense, as opposed to a finding that the defendant is
GBMI, which does not relieve the defendant of criminal responsibility. See People v Stephan, 241
Mich App 482, 491-493; 616 NW2d 188 (2000).

A. RIGHT TO A JURY TRIAL

Defendant first argues the trial court violated his right to a trial by jury and violated the
presumption of innocence by entering a pretrial order finding defendant “criminal[ly] responsible.”
Defendant argues the court’s ruling essentially functioned as a directed verdict of guilty,
amounting to a violation of his right to a jury trial. Although the court did not permit defendant to
present testimony regarding his mental health or the guardianship, and ruled defendant could be
found criminally responsible, it did not rule on the ultimate issue of defendant’s guilt of the charged
crimes. Rather, the court left that issue for the jury to decide following a three-day trial. The trial
court’s finding regarding culpability essentially functioned as a finding that defendant was
competent to stand trial and that the NGRI defense could not be raised at trial, which did not deny
defendant’s right to a trial by jury or otherwise violate defendant’s presumption of innocence.3

B. NGRI DEFENSE

Even assuming defendant did not waive the NGRI defense, the evidence did not warrant
an NGRI instruction. Before trial, the court ruled, in relevant part, as follows:

The court adopts the competency and culpability reports submitted by the
Center for Forensic Psychiatry as well as defense expert Dr. Abramsky and finds
the defendant competent to stand trial and culpable in that there are no expert
opinions or reports to the contrary as of this date[.]

3
In other words, based upon our review of the record, it is clear that the section of the pretrial
order entered by the trial court referencing defendant’s “competency and culpability” was limited
to the issue of whether defendant lacked substantial capacity either to appreciate the nature and
quality or the wrongfulness of his conduct or to conform his conduct to the requirements of the
law under MCL 768.21a(1). The trial court found that the reports submitted by the Center for
Forensic Psychiatry and Dr. Abramsky demonstrated that defendant did not lack such capacity and
that those reports were unrebutted by defendant, i.e., that section of the order was merely a ruling
on the issue of MCL 768.21(a)(1) and not an adjudication of guilt. Our interpretation of the order
is corroborated by the fact that the issue of defendant’s guilt was subsequently submitted to the
jury, i.e., it was the jury that determined that defendant was guilty in this case, not the trial court.

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The court’s ruling followed a discussion on the record in which defense counsel indicated he was
not raising an NGRI defense. When defendant interjected on the record, defense counsel explained
that defendant seemed to want to say that he is not culpable. Defendant added he also wanted to
say “[s]omething else.” The trial court responded as follows:

So, Counsel, I mean I can set a hearing on the culpability. I mean, the
evidence that you’re providing me on his side establishes his culpability. So, I
mean, I don’t—he—he may disagree with that.

Sir, you may disagree with that, but there’s no evidence to the contrary, and
so the Court is finding it. I don’t need a stipulation. I don’t need— I have reports,
both of which —both on the defense side, and on the prosecution side, that establish
that you’re both competent and culpable.

The issue arose again during the second day of trial, when the prosecutor requested that the
court preclude the admission of testimony relating to defendant’s mental illness, mental-health
treatment, hospitalizations, and guardianship. The court explained that it already ruled on
competency and that defendant had not raised an NGRI defense. The court found that guardianship
was a “totally different” statutory scheme and did not apply in this case. The court further
concluded that it already ruled on competency, and that it did not sound like defense counsel was
asserting an NGRI defense. When defense counsel indicated defendant believed he had raised an
NGRI defense, the court noted that there was a finding from the CFP and the independent expert
that defendant was culpable, i.e., he was capable of understanding the wrongfulness of the alleged
conduct, that the issue was not raised throughout the case (i.e., the trial), and that defendant had
been evaluated by a defense expert, such that the court was satisfied that the issue had been
addressed. The court additionally noted defendant would not be qualified to testify on the issue
because he was not an expert and lacked credentials.

In view of the court’s discussion of the issue on the record, and considering the lack of
evidence supporting defendant’s position, we conclude the trial court did not deprive defendant of
his right to present an NGRI defense. Defendant does not offer any expert testimony to support
his position and appears to rely solely on his own proposed testimony, as well as the evidence
relating to his guardianship and civil-commitment proceeding. Defendant’s testimony was not
sufficient to support his NGRI defense. At the time of trial, MRE 702 provided, in relevant part:

If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise if
(1) the testimony is based on sufficient facts or data, (2) the testimony is the product
of reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case. [MRE 702, as amended July 22, 2003,
469 Mich cxci (2004).]

Defendant lacked the expertise to establish that he was legally insane under the legal
definition of the term or even that he had a qualifying mental illness. Rather, specialized
knowledge would be required by an expert qualified through skill, knowledge, experience,

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training, or education to opine on whether defendant met the statutory definition of “mental illness”
and whether he lacked substantial capacity. See MCL 768.21a(1). At most, defendant’s testimony
may have been used, as lay testimony, to support an expert’s findings. See People v Parker, 133
Mich App 358, 361-362; 349 NW2d 514 (1984).4 But defendant could not rely on his own lay
witness testimony alone to establish that he met the statutory definition of legal insanity. See Ake
v Oklahoma, 470 US 68, 80-81; 105 S Ct 1087; 84 L Ed 2d 53 (1985). Therefore, the trial court
did not err by declining to allow defendant to present an NGRI defense or by declining to read the
NGRI instruction to the jury.

C. REMAND IS UNNECESSARY

We further conclude remand is unnecessary. First, the record is sufficiently developed to
allow for appellate review of the trial court’s rulings, and defendant’s testimony was insufficient
to support his NGRI defense. Second, the documentation and testimony defendant proposes to
present to the trial court does not support his NGRI defense.

In defendant’s motion to remand, defendant suggests the trial court should conduct an
evidentiary hearing to supplement the existing record with the following evidence:

 Portions of defendant’s 2004 mental-health records from the Michigan Department of
Corrections (MDOC), associated with his CSC-II conviction, in which defendant was
diagnosed with a personality disorder.

 Orders and petitions from the guardianship case.

 A mental-health evaluation performed on defendant in relation to the guardianship case
indicating he suffered from schizophrenia.

 A petition filed to have defendant submitted for mental-health treatment in a separate
civil-commitment matter.

 Defendant’s written statement in which he outlines how he would have testified if he
testified on his own behalf at trial.

Defendant adds in his Standard 4 brief that the trial court should have considered evidence relating
to his guardianship to show he had schizophrenia.

Even if the trial court had considered these documents, they do not establish that defendant
was entitled to assert an NGRI defense a trial. To start, defendant’s documentation about his 2004
personality-disorder diagnosis does not support his NGRI defense. Defendant does not cite any
legal source that would support that having a personality disorder qualifies as legally insane under

4
Pre-November 1, 1990 decisions of this Court are not strictly binding on this Court, see MCR
7.215(J)(1), but these opinions are still considered precedent and are entitled to significantly more
deference than unpublished opinions. People v Bensch, 328 Mich App 1, 7 n 6; 935 NW2d 382
(2019).

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MCL 768.21a(1). Defendant’s documentation regarding his guardianship and the civil-
commitment proceedings (including a document diagnosing him with schizophrenia) also would
not support an NGRI defense. The guardianship and civil-commitment proceeding were probate
matters governed by separate statutory schemes. Guardianships are governed by the Estates and
Protected Individuals Code (EPIC), MCL 700.1101 et seq. MCL 700.5306, a provision of EPIC,
provides, in relevant part, that

[t]he court may appoint a guardian if the court finds by clear and convincing
evidence both that the individual for whom a guardian is sought is an incapacitated
individual and that the appointment is necessary as a means of providing continuing
care and supervision of the incapacitated individual, with each finding supported
separately on the record. [MCL 700.5306(1).]

EPIC defines the term “incapacitated individual” as

an individual who is impaired by reason of mental illness, mental deficiency,
physical illness or disability, chronic use of drugs, chronic intoxication, or other
cause, not including minority, to the extent of lacking sufficient understanding or
capacity to make or communicate informed decisions. [MCL 700.1105(a).]

In contrast, MCL 768.21a provides a different definition of “legal insanity,” which, as noted
earlier, requires a finding of a mental illness or intellectual disability, as well as a lack of substantial
capacity. MCL 768.21a(1). Therefore, the fact that the probate court determined defendant met
the legal standard for a guardianship would not establish that he was legally insane for purposes
of his criminal trial.

Similarly, for purposes of the 2020 civil-commitment proceeding, although the NGRI
defense borrows the definition of mental illness from the Mental Health Code, MCL 330.1400 et
seq., the statute also requires a defendant to establish that he lacks substantial capacity to appreciate
the nature and quality of the wrongfulness of his conduct or to conform his conduct to the law.
See MCL 768.21a(1). This standard is different from the standard for issuing an order for
involuntary mental-health treatment, as outlined in the Mental Health Code, which requires clear
and convincing evidence that the individual is a “person requiring treatment,” but does not contain
the substantial-capacity language. In re Portus, 325 Mich App 374, 386-386; 926 NW2d 33
(2018); MCL 330.1465. The evidence from defendant’s 2020 civil-commitment proceeding could
not have been used to establish defendant had a mental illness at the time of his trial nearly three
years later, or that he lacked substantial capacity.

The Supreme Court’s opinion in People v Carpenter, 464 Mich 223; 627 NW2d 276
(2001), contradicts defendant’s assertion that his entitlement to assert an insanity defense at trial
was supported by the above-referenced findings under EPIC and/or the Mental Health Code.
Specifically, the Court held:

The Legislature has enacted a comprehensive statutory scheme setting forth the
requirements for and the effects of asserting a defense based on either mental illness
or mental retardation. We conclude that, in so doing, the Legislature has signified
its intent not to allow evidence of a defendant’s lack of mental capacity short of

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legal insanity to avoid or reduce criminal responsibility by negating specific intent.
Rather, the insanity defense as established by the Legislature is the sole standard
for determining criminal responsibility as it relates to mental illness or retardation.
Consequently, we affirm the decision of the Court of Appeals on this alternative
basis. [Id. at 241 (emphasis added).]

Our finding on this issue is supported by this Court’s prior decision in People v Shaholli,
unpublished opinion of the Court of Appeals, issued June 21, 2016 (Docket No. 325399), pp 15-
16, where we held that the trial court did not err when it refused to admit as evidence, in support
of the defendant’s insanity defense, orders issued by the Macomb County Probate Court appointing
a guardian and a conservator for the defendant because such evidence was inadmissible under
Carpenter.5

For these reasons, we find that remand is unwarranted.

D. DEFENDANT’S MENTAL-HEALTH EVIDENCE

Regarding defendant’s related argument about whether he should have been permitted to
testify about his mental-health conditions, treatments, guardianship, or hospitalizations, defendant
does not argue that the testimony about his mental health would have been relevant to any defense
other than insanity, or that it was relevant to any of the elements of CSC-III. Therefore, the court
did not err in precluding the admission of evidence relating to defendant’s mental health, treatment,
hospitalization, or the guardianship. See MRE 401 and 402.

As to defendant’s argument in his Standard 4 brief that the trial court should not have
allowed adverse evidence regarding culpability at trial because defendant did not raise an insanity
defense, defendant does not provide any legal support for his position and has abandoned it on
appeal. See People v Payne, 285 Mich App 181, 195; 774 NW2d 714 (2009) (“An appellant may
not merely announce his position and leave it to this Court to discover and rationalize the basis for
his claims.”) (quotation marks and citation omitted).

E. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant also argues, in one sentence in his principal brief, that he was prevented from
presenting an NGRI defense because of “trial counsel’s ineffectiveness.” We disagree.

To establish a claim of ineffective assistance of counsel entitling the defendant to a new
trial, “ ‘a defendant must show that (1) counsel’s performance fell below an objective standard of
reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability
that that outcome would have been different.’ ” People v Yeager, 511 Mich 478, 488; 999 NW2d

5
“Although MCR 7.215(C)(1) provides that unpublished opinions are not binding under the rule
of stare decisis, a court may nonetheless consider such opinions for their instructive or persuasive
value.” Kennard v Liberty Mut Ins Co, 341 Mich App 47, 53 n 2; 988 NW2d 797 (2022) (quotation
marks and citation omitted).

-11-
490 (2023) (citation omitted). “Failing to advance a meritless argument or raise a futile objection
does not constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich App 192, 201;
793 NW2d 120 (2010).

Defendant does not articulate the factual basis for his ineffective-assistance claim, thus
abandoning the issue on appeal. See Payne, 285 Mich App at 195. Even if he had, trial counsel
adequately investigated the issue by requesting an independent examination, and was not deficient
for failing to pursue an insanity defense after defendant’s own independent expert concluded, only
a month before trial, that defendant was competent and could be found criminally responsible.
Without any additional evidence to support the NGRI defense, the defense was meritless. See
Ericksen, 288 Mich App at 201.

III. WAIVER OF RIGHT TO TESTIFY

Defendant next argues the trial court’s ruling precluding his testimony about his mental-
health history effectively deprived him of his right to testify at trial, rendering his waiver of his
right to testify involuntary. We disagree.

When the defendant decides not to testify or agrees with his attorney’s decision against
testifying, “ ‘the right will be deemed waived.’ ” People v Simmons, 140 Mich App 681, 685; 364
NW2d 783 (1985) (citation omitted). The general rule is that a criminal defendant can waive
constitutional rights, but the waiver must be personal and informed. People v Gonzalez-
Raymundo, 308 Mich App 175, 187; 862 NW2d 657 (2014). However, in the context of the right
to testify, the trial court is not obligated to advise the defendant of the right or determine whether
the waiver was knowing and intelligent. People v Harris, 190 Mich App 652, 661-662; 476 NW2d
767 (1991). There is no dispute that defendant waived his right to testify on the record. Rather,
the dispute is over whether the waiver was voluntary in light of the court’s prior evidentiary ruling
precluding evidence about defendant’s mental illness.

We review for clear error a trial court’s factual findings relating to a defendant’s waiver of
a right, and review de novo any related issues about the interpretation of a law or a constitution.
People v Russell, 471 Mich 182, 187; 684 NW2d 745 (2004). A criminal defendant has a
constitutional right to testify in his own defense at trial. People v Bonilla-Machado, 489 Mich
412, 419; 803 NW2d 217 (2011). This Court has held that “an accused’s right to convey his side
of the story to the jury is contained in the constitutional guarantee of due process of law.”
Simmons, 140 Mich App at 684. Defense counsel must advise the defendant about the right, but
the defendant retains the ultimate decision whether to testify at trial. Bonilla-Machado, 489 Mich
at 419 And if the defendant expresses a desire to testify at trial, the trial court must grant that
request even over defense counsel’s objection. People v Spaulding, 332 Mich App 638, 656; 957
NW2d 843 (2020). However, the defendant may waive this right by deciding against testifying or
by acquiescing in defense counsel’s decision against testifying. Id. at 657. The waiver need not
occur on the record. Id. Additionally, although constitutional in nature, a defect with respect to
the right to testify has been deemed a nonstructural error, such that it is subject to harmless-error
review. Id.

In People v Boyd, 470 Mich 363, 373-374; 682 NW2d 459 (2004), the Michigan Supreme
Court addressed the issue whether a trial court’s pretrial ruling allowing the prosecution to present

-12-
evidence that the defendant exercised his Miranda6 right to remain silent to be admitted at trial
effectively prevented the defendant from testifying at trial. The Court recognized the
constitutional implications when a trial court’s ruling, even on an evidentiary issue, effectively
prevents the defendant from testifying at trial. Id. Nevertheless, the Court held that, because the
admissibility of the defendant’s post-Miranda silence would have depended on the context in
which the prosecution sought to admit it, the defendant’s claim of error was speculative in nature.
Id. at 376. In other words, because the defendant did not testify, it was not clear whether the trial
court would have ruled that the statement was inadmissible or whether the prosecution would have
even sought to admit the statement. Id. The Court refused to speculate on whether the statement
would have been properly admissible or regarding whether any error would have been harmless.
Id. at 377. Thus, to present the challenge to the ruling in limine, the defendant had to testify at
trial. Id. at 378.

This case presents a similar scenario. Defendant does not dispute that he waived his right
to testify on the record. The following waiver colloquy occurred on the record:

[Defense Counsel]: Mr. Harding, this is the date and time set for a trial and
we have been in trial and this is the third day, correct?

Defendant Harding: Correct.

[Defense Counsel]: And you have an absolute right to testify in your trial,
do you understand that?

Defendant Harding: Absolutely.

[Defense Counsel]: And you also have a right not to testify in your trial, do
you understand that?

Defendant Harding: Yes.

The Court: And if you should testify, all that you might say on the stand is
used by the jury in their determination of the facts of this case, correct?

Defendant Harding: Correct.

[Defense Counsel]: And if you choose not to testify, no juror can draw any
conclusion as to your guilt. Do you understand that?

Defendant Harding: Yes.

[Defense Counsel]: Now there are three things that you have told me that
I’ll make part of this record, one of which was that somewhere on the record of this

6
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

-13-
Court the statement was made that you have a right to correct your medical records,
correct?

Defendant Harding: Mental health.

[Defense Counsel]: Mental Health.

* * *

[Defense Counsel]: Right?

Defendant Harding: Right.

[Defense Counsel]: And you also said to me that you had a right to correct
the statements made by the interviews [sic] done for the forensic evaluations
because they were based on hearsay, correct?

Defendant Harding: Correct.

[Defense Counsel]: And you are making that statement today as part of this
record, correct?

Defendant Harding: Absolutely correct.

[Defense Counsel]: Okay. And you also stated that there was some mental
health records that had to be corrected. Is that the statement?

Defendant Harding: Yes, that’s the statement.

[Defense Counsel]: And you understand that the Judge’s ruling is that the
mental health condition or anything referenced to mental health would not be
admissible, correct?

Defendant Harding: Correct.

[Defense Counsel]: And knowing all those things, you are choosing not to
testify. Is that a correct statement?

Defendant Harding: That’s a correct statement.

The court then indicated it was satisfied with the waiver, and defense counsel agreed.

Defendant argues the trial court should not have prevented him from testifying about his
mental-health condition, which he argues had a chilling effect on his ability to tell his side of the
story. Defendant relies primarily on the United States Supreme Court’s opinion in Rock v
Arkansas, 483 US 44, 56; 107 S Ct 2704; 97 L Ed 2d 37 (1987), which involved a state rule
prohibiting posthypnotic testimony. In that case, the United States Supreme Court concluded that
the per se rule was unconstitutional and significantly adversely affected the petitioner’s ability to

-14-
testify, explaining that a state may not “apply a rule of evidence that permits a witness to take the
stand, but arbitrarily excludes material portions of his testimony.” Id. at 55-57.

Again, for the reasons stated above, the trial court did not err by precluding admission of
evidence about defendant’s mental-health condition and the related guardianship. Unlike in Rock,
this case does not involve a per se rule that prohibited defendant from describing any of the events
that occurred in this case. See id. at 57. Rather, this case involves an evidentiary ruling specific
to the facts of this case, i.e., that he was not permitted under the pertinent law to present a potential
NGRI defense, which was appropriate under the circumstances. Defendant cites no caselaw to
support that an evidentiary ruling in a specific case may amount to a deprivation of the right to
testify. Because Michigan does not recognize any lesser forms of mental-illness defenses,
defendant’s testimony about his mental health was not admissible for any other purpose. For these
reasons, this basis for defendant’s claim that his waiver was involuntary lacks merit.

Additionally, as in Boyd, defendant’s argument about the effect of the trial court’s ruling
on his ability to testify is speculative in nature considering that defendant never testified at trial,
and the record does not specify that the sole basis for this decision was defendant’s inability to
discuss his mental-health history. Although the issue of his mental health was raised during the
waiver colloquy, defendant did not state that the court’s evidentiary ruling was the sole basis for
his decision against testifying. Also, because defendant never testified at trial, the court could not
make contemporaneous rulings on the admissibility of his testimony. As for the remand request,
defendant has not provided any legal authority that would allow him to develop a record on the
subject after the fact through an evidentiary hearing in the trial court. The Boyd Court precluded
this type of hindsight analysis. See Boyd, 470 Mich at 376-378.

Moreover, defendant has not established that the trial court’s ruling precluded the
testimony on subjects other than defendant’s mental health. The other subjects defendant
represents on appeal that he would have discussed during his testimony were (1) that his guardian
(George Heitmanis) pressured JH to report the incidents to the police, (2) that the prior CSC-II
conviction was not relevant, (3) that JH entered into a relationship with a man named David to
convince herself she did not want a relationship with defendant, and (4) that JH was a “drug
addict,” and therefore had a motivation to lie. The court’s mental-health ruling did not preclude
defendant from testifying about these subjects, assuming the testimony was otherwise admissible
under the Michigan Rules of Evidence. In fact, defense counsel explored the issue of the delay in
JH’s reporting of the incidents during cross-examination. Defendant did not explore the topic of
an alleged drug addiction during JH’s testimony, and does not explain on appeal how his potential
testimony on that issue would bear on her credibility, especially considering the fact that JH
admitted at trial that she had consumed alcohol and other substances, such as Ambien, at certain
points during her sexual encounters with defendant. For these reasons, the court’s evidentiary
ruling did not amount to a deprivation of defendant’s right to testify.

Finally, defendant argues that the trial court’s frequent strictures and warnings about
defendant’s disruptive behavior also disincentivized him from testifying at trial. However, a trial
court has the discretion to exclude a defendant from the courtroom during trial when the
defendant’s disruptive conduct amounts to a forfeiture of the right to be present in the courtroom.
People v Kammeraad, 307 Mich App 98, 116-118; 858 NW2d 490 (2014). The record in this case

-15-
supports that defendant interrupted the court on numerous occasions, resulting in a brief removals
from the courtroom. No constitutional deprivation occurred.

Additionally, any alleged constitutional error was harmless beyond a reasonable doubt.
See People v Solomon, 220 Mich App 527, 534-538; 560 NW2d 651 (1996). In his written
statement, defendant does not indicate that he would have denied that any of the incidents occurred.
In fact, he suggests that he would have developed a theory through his testimony that JH was a
willing participant in their relationship. Consent is not an element of CSC-III, and a defendant
may be found guilty of the crime regardless of whether the other party consented to the sexual
intercourse. See MCL 750.520d(1)(d). Defendant would have been subject to cross-examination
on whether the incidents occurred. He does not dispute he would have acknowledged JH was his
daughter and that they engaged in prohibited sexual acts, which are the elements of the crime. See
id. For these reasons, any error was harmless beyond a reasonable doubt.

In his Standard 4 brief, defendant argues defense counsel was ineffective for failing to
advise him about the law relating to his right to testify. We note defendant does not appear to have
raised the issue by filing a motion for a new trial or Ginther hearing in the trial court, and it is not
raised in either motion to remand in this Court. See Abcumby-Blair, 335 Mich App at 227; Heft,
299 Mich App at 80. We therefore deem it unpreserved. To the extent defendant argues that trial
counsel told him the jury would “hang” him if he testified, this advice falls within the broad
presumption that counsel’s advice was a matter of sound trial strategy, particularly considering
that (a) the court ruled that defendant could not discuss his mental health at trial, and (b) defendant
does not deny that he engaged in the sexual activities with JH. See People v Matuszak, 263 Mich
App 42, 58; 687 NW2d 342 (2004). Consequently, defendant’s claim of ineffective assistance
lacks merit.

IV. ANOTHER COMPETENCY EXAMINATION

Defendant next argues that the trial court erred by failing to sua sponte order another
competency examination after defendant made statements on the first day of trial suggesting he
may not be competent. He adds that counsel was ineffective for failing to raise the issue. In his
Standard 4 brief, defendant further argues that the trial court compounded the error by failing to
recognize certain inaccuracies in the reports concerning his earlier competency examinations. We
disagree.

A defendant preserves the issue whether he is competent to stand trial by moving the trial
court for a “new trial and evidentiary hearing.” People v Abraham, 256 Mich App 265, 283; 662
NW2d 836 (2003). The issue of defendant’s competency was thoroughly explored at trial, yet
defendant did not move the trial court for a new trial or evidentiary hearing on the subject following
the trial, opting instead to move this Court to remand the case for a new trial. Therefore, the issue
is unpreserved. See id.

Defendant also did not preserve the issue of any errors in the forensic reports at trial. In
general, an issue is preserved for appellate review if it is raised in, or addressed or decided by, the
trial court. See Glasker-Davis v Auvenshine, 333 Mich App 222, 227-228; 964 NW2d 809 (2020).
Defendant did not raise this issue, and it was not addressed or decided. Therefore, it is
unpreserved.

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As noted earlier, a defendant preserves the issue of ineffective assistance of counsel by
moving the trial court for a new trial or a Ginther hearing, Heft, 299 Mich App at 80, or by moving
this Court to remand the case for a Ginther hearing, Abcumby-Blair, 335 Mich App at 227.
Defendant preserved the issue relating to whether counsel was ineffective for failing to request
another competency evaluation on the first day of trial when he raised it in his motion to remand
the case for an evidentiary hearing on the issue of counsel’s ineffective assistance, and requested
that this Court remand the case for a Ginther hearing should this Court find it necessary to further
supplemental the record on the issue of ineffective assistance. See id. However, defendant did
not raise in the motion to remand any allegations related to errors in the forensic evaluations.
Therefore, this particular ineffective-assistance issue is unpreserved. See id.

The trial court’s decision on whether there is a “bona fide doubt” about the defendant’s
competence is generally reviewed for an abuse of discretion. Kammeraad, 307 Mich App at 138.
However, because the issue is unpreserved, we review it for plain error affecting defendant’s
substantial rights. Carines, 460 Mich at 763. Similarly, we review defendant’s argument about
the alleged errors in the forensic evaluations for plain error. Id.

A. BONA FIDE DOUBT AS TO DEFENDANT’S COMPETENCY

A defendant has a due-process right to be protected from trial or conviction while he is
incompetent to stand trial. Kammeraad, 307 Mich App at 137. The issue is governed by both
statute and court rule. Id. The relevant statute provides as follows:

A defendant to a criminal charge shall be presumed competent to stand trial.
He shall be determined incompetent to stand trial only if he is incapable because of
his mental condition of understanding the nature and object of the proceedings
against him or of assisting in his defense in a rational manner. The court shall
determine the capacity of a defendant to assist in his defense by his ability to
perform the tasks reasonably necessary for him to perform in the preparation of his
defense and during his trial. [MCL 330.2020(1).]

MCL 330.2022(1) adds, “A defendant who is determined incompetent to stand trial shall
not be proceeded against while he is incompetent.” Additionally, MCR 6.125(B) allows the issue
of the defendant’s competence to stand trial to be raised by the trial court or by motion of a party.
See also MCL 330.2024 (“The issue of incompetence to stand trial may be raised by the defense,
court, or prosecution. The time and form of the procedure for raising the issue shall be provided
by court rule.”). As for the trial court’s responsibility to ensure the defendant is competent to stand
trial, this Court has explained:

Although the determination of a defendant’s competence is within the trial court’s
discretion, a trial court has the duty of raising the issue of incompetence where facts
are brought to its attention which raise a “bona fide doubt” as to the defendant’s
competence. However, the decision as to the existence of a “bona fide doubt” will
only be reversed where there is an abuse of discretion. [Kammeraad, 307 Mich
App at 138 (quotation marks and citation omitted).]

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To determine whether a “bona fide doubt” exists, this Court will examine “ ‘whether a
reasonable judge, situated as was the trial court judge whose failure to conduct an evidentiary
hearing is being reviewed, should have experienced doubt with respect to competency to stand
trial.’ ” Id. at 138-139 (citation omitted). Relevant to this inquiry are the defendant’s irrational
behavior, his demeanor, and his prior medical records relating to competence. Id. at 139. “ ‘There
are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry
to determine fitness to proceed; the question is often a difficult one in which a wide range of
manifestations and subtle nuances are implicated.’ ” Id. (citation omitted). On this issue, we give
regard to the trial judge’s ability to judge the credibility of the witnesses. See MCR 2.613(C).

Defendant compares this case to People v Harris, 185 Mich App 100, 102-103; 460 NW2d
239 (1990), in which the defendant had a long history of severe mental illness, including
schizophrenia. The defendant was initially determined to be incompetent to stand trial about a
year before the trial occurred, but two months later she was found competent to stand trial. Id. at
103. When the trial began, the defendant stated that she felt incompetent to stand trial and
requested a court order for hospitalization. Id. The trial court found that the defendant “seemed
to be ‘getting along pretty good,’ ” and defense counsel indicated the defendant’s mental-health
condition was “ ‘not a factor in this particular case.’ ” Id. at 103. On appeal, this Court observed
that the defendant made numerous bizarre statements and exhibited strange behaviors throughout
the proceedings. Id. The case was remanded to allow the defendant to move for a new trial, and
during the corresponding evidentiary hearing, a psychologist testified that the defendant’s
delusions would continue even with effective medication. Id. He opined it was “highly unlikely”
the defendant was competent at the time of trial and that had her competence been evaluated, she
would have been found not competent to stand trial. Id. Nevertheless, the trial court denied the
defendant’s motion for a nunc pro tunc competence hearing, and the case returned to this Court.
Id. This Court held that the evidence supported that there was at least a bona fide doubt about the
defendant’s competence, and the trial court erred by failing to order a reevaluation before trial. Id.
This Court held that defense counsel’s conduct was ineffective for failing to question the
psychologist who initially found the defendant competent to stand trial, and failing to request a
reevaluation. Id. at 103-104.

The trial court’s decision in the present case must be considered in context. At trial,
defendant made strange statements including that he believed he was “being attacked by an electric
magnetic weapon” and that he had “a microchip under [his] fingernail.” He later stated that the
jail contained a virus that was consuming the documents in the facility, causing the paper to
“dawn[] a mouth” and attack him. In a different context, these statements may have raised a “bona
fide doubt” about defendant’s competence. Kammeraad, 307 Mich App at 138. However, by that
time defendant had already undergone three competency examinations and been consistently found
competent to stand trial. The examiners found that defendant not only had a good grasp of the
legal proceedings, but also appeared to be fabricating or bolstering his mental-health symptoms to
appear incompetent to stand trial.

Specifically, Dr. Gilbert found that defendant researched the topic of legal insanity, and
the mental-health staff at the jail believed he was feigning his symptoms. Dr. Gilbert concluded
defendant did not exhibit psychotic qualities, and that while his behavior was at times bizarre and
paranoid, he appeared to be attempting to present himself that way “in a disingenuous manner.”
He “appeared motivated to present himself as psychiatrically impaired and, in his own words and

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characterization, incompetent to stand trial.” Defendant was able to understand the charges in the
case, could present coherent information about the incidents, and appeared to understand more
generally the legal consequences of a conviction. Dr. Gilbert concluded, “[I]t seemed evident that
he wanted to be deemed incompetent to stand trial, and that he was motivated to come across as
psychiatrically impaired.”

When the issue arose during the pretrial proceedings, defendant was independently
evaluated. Unlike the evaluation in Harris, the independent evaluation occurred only about a
month before trial. Dr. Abramsky noted that during the examination, defendant “was perfectly
coherent with no signs of significant mental health problems.” Dr. Abramsky explained that
defendant’s mental-health records contained contradictory information and diagnoses. Dr.
Abramsky concluded that defendant qualified for a dual diagnosis of manic-depressive disorder
and antisocial personality disorder. But he did not find that defendant had schizophrenia or any
other mental illness that would render him incompetent to stand trial. So, he found defendant both
competent to stand trial and to be found criminally responsible. Also, unlike Harris, where the
defendant was initially determined to be incompetent to stand trial, no such determination was ever
made in this case.

Under these circumstances, the trial court did not commit an error or deprive defendant of
his due-process rights by ruling that defendant’s competency had been thoroughly explored before
trial. The statements defendant made on the record were consistent with those he had made before
and during his previous competency examinations. And unlike Harris, defendant has not proposed
any testimony from any expert willing to opine that defendant was not competent to stand trial.

Defendant also indicated during trial that he believed he did not “have the wherewithal to
withstand the emotional pressure of the trial.” But defendant’s emotional ability to withstand the
trial was not an indication he was incompetent to stand trial. In other words, considering the
findings of the two examiners, a reasonable judge sitting in the trial court’s position would not
have experienced doubt about defendant’s competency. See Abraham, 256 Mich App at 283-284.
For the same reasons, defendant also cannot demonstrate prejudice. There is no indication that
defendant was actually innocent of the crimes, and any error in discretion exercised by the trial
court does not appear to have seriously affected the fairness, integrity, or public reputation of the
judicial proceedings. See Carines, 460 Mich at 763.

We further decline to remand this case on this issue. In his offer of proof, defendant asks
for the opportunity to expand the record to include portions of his mental-health records from
2004; however, as discussed previously, those records do not have any bearing on his ability to
stand trial nearly 20 years later. As also discussed previously, the guardianship proceedings are
different in nature than the competency and NGRI aspects of the criminal case, and defendant cites
no legal basis for finding him incompetent just because he had a guardian appointed in an earlier
probate-court matter. Thus, remand is unwarranted. See MCR 7.211(C)(1)(a).

B. INEFFECTIVE ASSISTANCE

Likewise, we do not conclude that trial counsel was ineffective for failing to request
another competency examination considering that defendant was evaluated in the month before
trial, and his behavior was similar to the conduct two previous evaluators found disingenuous.

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Counsel is not ineffective for failing to advance a meritless argument. See Ericksen, 288 Mich
App at 201. Further, unlike Harris, defense counsel in this case previously requested an
independent competency examination that concluded defendant was competent to stand trial.
Under these circumstances, defendant has not overcome the strong presumption that counsel’s
decision was sound trial strategy. See Matuszak, 263 Mich App at 58. Additionally, because the
argument would have been meritless, remand is not warranted to permit trial counsel to testify on
this issue.

C. ERRORS IN FORENSIC REPORTS

In his Standard 4 brief, defendant maintains that the trial court abused its discretion by
considering the forensic evaluations as evidence of his competency to stand trial (and to support a
lack of evidence of an NGRI defense) because they contained various errors. However, defendant
does not articulate any errors requiring reversal.

Defendant suggests that the CFP report contained an error about whether he had an
intellectual disability. He argues Dr. Gilbert did not perform any evaluations in relation to his
intellectual ability and that he was “developmentally retarded and intellectually disabled in social
functioning.” Defendant cites a medical record from 2020 to support that he had an intellectual
disability and suffered from “social-sexual rejection,” causing him to seek sexual contact with his
own daughter. But that record was not admitted at trial. He also suggests, more broadly, that JH’s
love for him drove him insane. Defendant argues Dr. Gilbert stated that defendant said the sexual
relationship was “voluntary,” but argues he actually said the relationship was “consensual”
considering he did not commit the acts voluntarily. He also argues more broadly that Dr. Gilbert
overlooked that he had an “irresistible impulse” to have sexual intercourse with his daughter. He
also denies telling Dr. Gilbert that he and JH had a “contract” for sexual activities or that he was
afraid of being arrested. He argues the MDOC was biased against him, which affected the
conclusions in the evaluations. Defendant continues to maintain he has schizophrenia and refutes
Dr. Gilbert’s conclusion that he “ ‘appeared exaggerated, dramatic[,] and manufactured’ ” in his
efforts. He maintains that all the evaluators were biased against him.

Defendant fails to show that any of the statements were false. He fails to explain how the
distinction between a “voluntary” relationship and a “consensual” relationship alters the outcome
of this case. His argument that he lacked the mental capacity to consent to the relationship is
undermined by the arguments he makes in other parts of his Standard 4 brief in which he argues
the parties had a consensual relationship. And there is no record evidence to support an
intellectual-disability defense, or that the CFP report contained any errors. The 2020 medical
report defendant cites does not appear in the record. In summary, defendant has not presented
evidence of any errors in the evaluations that would have affected the NGRI defense, or that correct
evaluations would have altered the court’s finding on the NGRI defense. No plain error occurred.7

7
Defendant also suggests in his Standard 4 brief that the trial court erred, and counsel rendered
ineffective assistance, because defendant never received a copy of Dr. Abramsky’s report.
Defendant does not support his argument that he never received the report. He also claims Dr.

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Counsel also did not render ineffective assistance by failing to raise this issue because any
argument on this point would have been meritless. See Ericksen, 288 Mich App at 201.

V. STANDARD 4 BRIEF

Defendant also raises a series of arguments in his Standard 4 brief that we will discuss next,
none of which have merit. For most of the claims raised in the Standard 4 brief, defendant raises
alternative, unpreserved claims of ineffective assistance of counsel, which we will discuss
separately.

A. CONSENT DEFENSE

First, Defendant argues in his Standard 4 brief that he should not have been convicted of
CSC-III because JH consented to the sexual acts in question and the two had a “spiritual marriage.”
We disagree.

We consider defendant’s argument to be best characterized as one challenging the
sufficiency of the evidence supporting his conviction.8 We review de novo a challenge to the
sufficiency of the evidence to support a conviction. People v Speed, 331 Mich App 328, 331; 952
NW2d 550 (2020). “In examining the sufficiency of the evidence, this Court reviews the evidence
in a light most favorable to the prosecutor to determine whether any trier of fact could find the
essential elements of the crime were proven beyond a reasonable doubt.” Id. (quotation marks and
citation omitted). This Court must resolve all conflicts in the evidence in favor of the prosecution.
People v Smith, 336 Mich App 297, 303; 970 NW2d 450 (2021). We review de novo issues of
statutory interpretation. People v Lechleitner, 291 Mich App 56, 59; 804 NW2d 345 (2010). The
goal of statutory interpretation “is to ascertain and give effect to the intent of the Legislature. The
touchstone of legislative intent is the statute’s language.” People v Harris, 495 Mich 120, 126-
127; 845 NW2d 477 (2014) (quotation marks and citation omitted). When the language of the
statute is clear and unambiguous, we enforce the plain meaning of the statute as written. Id. at
127.9

The applicable statute provides, in relevant part, as follows:

Abramsky was not paying attention during the evaluation and appeared to be on drugs, but again
cites no record evidence to support these allegations.
8
Arguably, defendant’s argument could be considered an argument that the court erred by failing
to allow him to raise a consent defense. However, regardless of how the issue is characterized, as
discussed later, consent is not a defense to CSC-III on an incest theory.
9
Defendant relies, to a large extent, on a police report that does not appear in the lower court file
and was not admitted into evidence at defendant’s trial. We decline to consider that document as
doing so would constitute an improper expansion of the record on appeal. See People v Morrison,
328 Mich App 647, 655; 939 NW2d 728 (2019).

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A person is guilty of criminal sexual conduct in the third degree if the person
engages in sexual penetration with another person and if any of the following
circumstances exist:

* * *

(d) That other person is related to the actor by blood or affinity to the third
degree and the sexual penetration occurs under circumstances not otherwise
prohibited by this chapter. It is an affirmative defense to a prosecution under this
subdivision that the other person was in a position of authority over the defendant
and used this authority to coerce the defendant to violate this subdivision. The
defendant has the burden of proving this defense by a preponderance of the
evidence. This subdivision does not apply if both persons are lawfully married to
each other at the time of the alleged violation. [MCL 750.520d(1)(d).]

Here, there is no dispute that (a) defendant and JH engaged in sexual penetration on at least
five occasions, (b) JH and defendant were father and daughter, and (c) JH was not in a position of
authority over defendant. Additionally, although defendant argues that he and JH had a “spiritual
marriage,” there was no evidence presented at trial that the marriage was a lawful marriage
recognized under the law of the state of Michigan.10 See MCL 551.3 (prohibiting a man from
marrying his own daughter). Nor is consent alone enough to establish a legal marriage in
Michigan—a license and solemnization are also required. See MCL 551.2.

Defendant’s arguments in his Standard 4 brief are that (1) the incidents did not involve
forcible rape, (2) JH consented to the sexual acts, and (3) JH was not “a victim” as that term is
defined for purposes of the criminal sexual conduct statutes. Regarding the issue of forcible rape,
MCL 750.502d(1)(d) does not require the prosecution to establish that a defendant used force or
threat of force to commit the sexual acts. In fact, other provisions of the criminal sexual conduct
statutes expressly refer to acts of “[f]orce or coercion,” demonstrating that Legislature knew how
to impose such a requirement if it intended to do so. See, e.g., MCL 750.520d(1)(b), MCL
750.520c(1)(d), MCL 750.520b(1)(d).

Regarding the definition of “victim,” MCL 750.520a(s) defines the term as “the person
alleging to have been subjected to criminal sexual conduct.” Defendant maintains JH was not
“subjected to” criminal sexual conduct. However, MCL 750.520d(1)(d) does not indicate that a
“victim” must be involved in the crime of incest or even mention that term. Rather it refers to the
“actor” and the “other person.” See MCL 750.520d(1)(d). Considering that other subdivisions

10
Defendant relies on several statements he maintains are found within a document entitled United
Nations, Universal Declaration on Human Rights (UDHR) (1948), for the general principle that
individuals have a freedom to marry and freedom of religion. He also refers to another United
Nations document. We note the United States Supreme Court has concluded that the UDHR “does
not of its own force impose obligations as a matter of international law.” Sosa v Alvarez-Machain,
542 US 692, 734; 124 S Ct 2739; 159 L Ed 2d 718 (2004). Defendant provides no legal basis for
finding these documents binding on this Court.

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within the same section refer to a “victim,” the change in terminology demonstrated an intent to
not require a victim as defined in MCL 750.520a(s). See People v Vaughn, 344 Mich App 539,
565; 1 NW3d 414 (2022) (“When the Legislature uses different words, the words are generally
intended to connote different meanings.” (quotation marks and citation omitted)). On the issue of
consent, MCL 750.520d(1)(d) does not contain a requirement that the prosecution establish a lack
of consent, and the statute also does not indicate consent is an affirmative defense.

As detailed above, the evidence supported that defendant engaged in sexual penetration
with JH, who was related to him by blood within the third degree, and that the penetration occurred
under circumstances not otherwise prohibited by the law. Further, defendant presented no
evidence demonstrating that he and JH were legally married. For these reasons, we find that
sufficient evidence supported defendant’s CSC-III convictions.

B. CONSTITUTIONAL CONSIDERATIONS

Defendant next argues he had a constitutional right to marry JH based on principles of
religious freedom, due process, and equal protection. We disagree.

We review de novo a challenge to the constitutionality of a statute. People v Boomer, 250
Mich App 534, 538; 655 NW2d 255 (2002). A statute is presumed to be constitutional unless the
unconstitutionality of the statute is “ ‘clearly apparent.’ ” Solloway, 316 Mich App at 184 (citation
omitted). “ ‘A constitutional challenge to the validity of a statute can be brought in one of two
ways: by either a facial challenge or an as-applied challenge.’ ” People v Johnson, 336 Mich App
688, 692; 971 NW2d 692 (2021) (citation omitted). A facial challenge is one to the statute itself,
in which the defendant must establish that there are no circumstances under which the statute
would be valid. Id. In contrast, an as-applied challenge relates to the denial of a specific right or
an injury that is particular in the process of the actual execution of the government’s actions. Id.
In other words, this Court examines “the specific application of a facially valid law to individual
facts.” People v Jarrell, 344 Mich App 464, 482; 1 NW3d 359 (2022) (quotation marks and
citation omitted), application for lv held in abeyance 994 NW2d 778 (Mich, 2023), application for
lv held in abeyance 12 NW3d 396 (Mich, 2024). See also Bonner v Brighton, 495 Mich 209, 223
n 27; 848 NW2d 380 (2014) (an as-applied challenge is “a present infringement or denial of a
specific right or of a particular injury in process of actual execution of government action.”
(quotation marks and citation omitted)).

Although defendant does not specify whether his challenge is facial or as-applied to his
situation, he does not claim that there are no circumstances under which the CSC-III statute would
be valid. Rather, he argues that, under the facts of this case, because defendant had a “spiritual
marriage” to JH, his CSC-III convictions deprived him of his constitutional rights. Therefore, his
challenge is an “as-applied” challenge.

Beginning with defendant’s freedom-of-religion argument, defendant presents challenges
under both the United States Constitution and Michigan’s 1963 Constitution. The First
Amendment to the United States Constitution provides, in relevant part, “Congress shall make no
law . . . prohibiting the free exercise” of religion. US Const, Am I. The Tenth Amendment to the
United States Constitution, which defendant also cites in his Standard 4 brief, provides, “The
powers not delegated to the United States by the Constitution, nor prohibited by it to the States,

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are reserved to the States respectively, or to the people.” US Const, Am X. The Fourteenth
Amendment to the United States Constitution applies the First Amendment to the states. See US
Const, Am IV; People v DeJonge, 442 Mich 266, 273; 501 NW2d 127 (1993).

Regarding freedom of religion, Michigan’s 1963 Constitution provides, in relevant part:

Every person shall be at liberty to worship God according to the dictates of
his own conscience. No person shall be compelled to attend, or, against his consent,
to contribute to the erection or support of any place of religious worship, or to pay
tithes, taxes or other rates for the support of any minister of the gospel or teacher
of religion. No money shall be appropriated or drawn from the treasury for the
benefit of any religious sect or society, theological or religious seminary; nor shall
property belonging to the state be appropriated for any such purpose. The civil and
political rights, privileges and capacities of no person shall be diminished or
enlarged on account of his religious belief. [Const 1963, art 1, § 4.]

Additionally, Const 1963, art 8, § 1, provides, “Religion, morality and knowledge being necessary
to good government and the happiness of mankind, schools and the means of education shall
forever be encouraged.”11 The right to marry is a fundamental due-process and equal-protection
right. Pueblo v Haas, 511 Mich 345, 361; 999 NW2d 433 (2023).

The CSC-III statute is not unconstitutional as applied to defendant’s CSC-III convictions.
To start, defendant does not present any evidence that he had any form of marriage (spiritual or
otherwise) with JH. In fact, in his Standard 4 brief, defendant baselessly alleges that JH consented
to their alleged spiritual marriage by confirming she wanted to have sexual intercourse with him
and asking him not to leave her. He acknowledges she was drinking at the time, which impaired
her memory. Defendant does not argue that he and JH were married under the laws of the state of
Michigan. See MCL 750.520d(1)(d) (“This subdivision does not apply if both persons are lawfully
married to each other at the time of the alleged violation.”).

Even if this Court were to entertain defendant’s completely unfounded argument that he
and JH had some form of “spiritual marriage” under his religion, defendant’s freedom-of-religion
right would give way to the state’s interest in preventing incest. Michigan has criminalized incest
and prohibited marriage between closely related individuals since the early days of this state’s
existence. See People v Jenness, 5 Mich 305, 307 (1858). When it comes to whether a statute
infringes on the constitutional protection of the free exercise of religion, the general rule is that “a
law that is neutral and of general applicability need not be justified by a compelling governmental
interest even if the law has the incidental effect of burdening a particular religious practice.”
Church of Lukumi Babalu Aye, Inc v City of Hialeah, 508 US 520, 531; 113 S Ct 2217; 124 L Ed
2d 472 (1993). “A law failing to satisfy these requirements must be justified by a compelling

11
Defendant also relies on Const 1963, art 1, § 25, which was a provision defining the term
“marriage” as a union of one man and one woman. However, the United States Supreme Court
held that constitutional provision violated the United States Constitution. Obergefell v Hodges,
576 US 644, 680-681; 135 S Ct 2584; 192 L Ed 2d 609 (2015).

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governmental interest and must be narrowly tailored to advance that interest,” i.e., must overcome
a strict-scrutiny review. Id. at 531-532.

MCL 750.520d(1)(d) does not lack facial neutrality, does not burden any particular
religion, and therefore does not need to be justified by a compelling governmental interest. See
id. Nor is there any evidence in the record that the real purpose of the incest provision of MCL
750.520d was to prohibit the practice of defendant’s religion (Messianic Yahwism). Nor does
defendant provide evidence to support that “spiritual marriage” is a major tenant of his religion (or
even that his religion would sanction the marriage between defendant and his daughter). Rather,
the purpose of the CSC-III statute, based on its language, is to prohibit sexual contact between
closely-related individuals, regardless of their religious affiliations. See id.

The United States Supreme Court has rejected the notion that an individual can make a
sweeping challenge to a criminal law on the basis of a religious objection. See Employment Div,
Dep’t of Human Resources of Oregon v Smith, 494 US 872, 878-879; 110 S Ct 1595; 108 L Ed 2d
876 (1990) (“We have never held that an individual’s religious beliefs excuse him from
compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”),
superseded in part by statute on other grounds as stated in Ramirez v Collier, 595 US 411, 424-
425; 142 S Ct 1264; 212 L Ed 2d 262 (2022). The United States Supreme Court explained:
“Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is
accompanied by religious convictions, not only the convictions but the conduct itself must be free
from governmental regulation. We have never held that, and decline to do so now.” Smith, 494
US at 882. In other words, without evidence that the Legislature intended to target his religion
when it enacted the CSC-III statute pertaining to incest, defendant cannot make a sweeping
religious challenge to the statute.

Defendant’s due-process and equal-protection challenges also lack merit. For equal
protection, under both the United States Constitution and Michigan’s 1963 Constitution, “equal
protection requires that persons be treated alike with respect to certain, largely innate,
characteristics that do not justify disparate treatment.” People v James, 326 Mich App 98, 105;
931 NW2d 50 (2018) (quotation marks and citation omitted).12 Again, defendant’s constitutional
challenges are best characterized as “as-applied” challenges. “To prevail on the claim, defendant
must show both that (1) he has been intentionally treated differently from others similarly situated,
and (2) there is no rational basis for the difference in treatment.” Id. at 106 (quotation marks and
citation omitted).

Defendant is similarly situated to an identified group if he can show that “he is comparable
in all material respects to the members of that group.” See id. In this case, defendant does not
identify a group to which he is similarly situated, and he does not show he was intentionally treated

12
In his Standard 4 brief, defendant indicates the trial court erred by failing to apply the Civil
Rights Act (CRA), MCL 37.2101 et seq., to his case. However, the CRA is a civil statutory scheme
that is not applicable in criminal cases. See MCL 37.2101 (explaining that the statutory scheme
relates to employment, housing, real estate, public accommodations, public services, and education
facilities).

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differently from other similarly situated individuals. His argument is limited to the idea that the
law discriminates against unmarried individuals. He also suggests he was treated differently than
JH, possibly attempting to raise a gender-based argument. Again, the CSC-III statute does not
single out defendant’s religion in any way. It does not treat individuals differently because of
gender. Therefore, defendant’s equal-protection claim lacks merit. Although the law provides an
exception for lawful marriage, there is a rational basis for the difference in treatment between
lawfully married individuals and other individuals. Specifically, a rational basis for the difference
in treatment existed considering Michigan’s longstanding prohibition on incest and marriage
between a father and a daughter. It was rational for the Legislature to distinguish between those
individuals with marriages recognized under Michigan law and those individuals without lawfully
recognized marriages.

Regarding his due-process challenge, because defendant does not raise any procedural
irregularities, we assume his challenge is one of substantive due process. See People v Konopka
(On Remand), 309 Mich App 345, 366; 869 NW2d 651 (2015). Both the United States
Constitution and the Michigan Constitution of 1963 prohibit the government from depriving
individuals of life, liberty, or property without due process of the law. Id. “For a challenge to a
statute on the grounds of a substantive due process violation, a challenger must show that the
statute is unrelated to a legitimate government purpose and thus, essentially arbitrary.” Id. at 366-
367. Defendant does not explain in his Standard 4 brief how the provision of the CSC-III statute
criminalizing incest is arbitrary or unrelated to a legitimate government purpose. The fact that the
law incidentally affects a belief that defendant characterizes as religious in nature does not show
the law was arbitrary. We decline to make a more specific argument for defendant. See id. at 366
(“An appellant’s failure to properly address the merits of his assertion of error constitutes
abandonment of the issue.”).

C. OTHER-ACTS EVIDENCE

Defendant next argues the prosecutor and trial court erred and conspired with each other
to improperly admit evidence of defendant’s prior CSC-II conviction because this case did not
involve domestic violence or sexual assault, and his prior conviction was very old. Again, we
disagree.

The overarching issue of the admissibility of this evidence was raised through the
prosecution’s notice of intent to introduce other-acts evidence at trial and defendant also raised the
specific objection regarding the age of his prior conviction by objecting and raising this same basis
as the reason for the objection. Therefore, this issue is preserved for appellate review. See Aldrich,
246 Mich App at 113. However, as defendant acknowledges in his Standard 4 brief, there was no
specific challenge to the admission of evidence relating to defendant’s CSC-II conviction on the
basis that this case was not a sexual assault or rape case. Therefore, that issue will be reviewed
for plain error. See Carines, 460 Mich at 763.

Again, we review evidentiary issues for an abuse of discretion, Aldrich, 246 Mich App at
113, and preliminary questions of law de novo, Galloway, 335 Mich App at 637. We review
defendant’s unpreserved evidentiary challenge for plain error. See Carines, 460 Mich at 763.

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Propensity evidence is generally inadmissible. See MRE 404. Under MRE 404(b), the
general rule is that evidence of other crimes, wrongs, or acts cannot be admitted at trial to establish
a propensity to commit those acts. Galloway, 335 Mich App at 637-638. However, the trial court
in this case relied upon MCL 768.27b(1), which at the time of trial was broader than MRE 404(b)
in cases involving sexual assault or domestic violence, and even permitted relevant evidence of
other domestic-violence or sexual-assault incidents to prove any issue, even the character of the
accused, provided that evidence meets the standard outlined in MRE 403. See People v Cameron,
291 Mich App 599, 609; 806 NW2d 371 (2011), and MCL 768.27b(2), as amended by 2018 PA
372. This statute permitted the jury the opportunity to weigh the defendant’s history and view the
facts of the case in the larger context. Id.

Here, the CSC-II conviction arose from an act occurring more than 10 years before the
charged offenses. On this issue, MCL 768.27b(4) at all relevant times provided as follows:

Evidence of an act occurring more than 10 years before the charged offense
is inadmissible under this section unless the court determines that 1 or more of the
following apply:

(a) The act was a sexual assault that was reported to law enforcement within
5 years of the date of the sexual assault.

(b) The act was a sexual assault and a sexual assault evidence kit was
collected.

(c) The act was a sexual assault and the testing of evidence connected to the
assault resulted in a DNA identification profile that is associated with the defendant.

(d) Admitting the evidence is in the interest of justice.

In his Standard 4 brief, defendant raises two challenges to the admission of the evidence
relating to his prior CSC-II conviction (which included admission of documentation from the prior
conviction and JH’s testimony about the prior acts). First, defendant argues that the evidence
should not have been admitted because this case did not involve a “sexual assault.” Second,
defendant maintains the conviction, which was over 25 years old, was not relevant for purposes of
this trial and, even if it were, the probative value was substantially outweighed by the danger of
unfair prejudice.

Starting with the first issue, MCL 768.27b(6)(c) defines the term “sexual assault” as “a
listed offense as that term is defined in section 2 of [the Sex Offenders Registration Act (SORA),
MCL 28.721 et seq.], MCL 28.722.” The question is whether this CSC-III case on an incest theory
constituted a sexual assault under SORA. MCL 28.722(i) provides, in relevant part, that a listed
offense is a Tier I, Tier II, or Tier III offense. Relevant to this appeal, a Tier III offense includes,
in relevant part, a violation of MCL 750.520d. See MCL 28.722(v)(iv). The only exception occurs
when “the court determines that the victim consented to the conduct constituting the violation, that
the victim was at least 13 years of age but less than 16 years of age at the time of the offense, and
that the individual is not more than 4 years older than the victim.” Id. (emphasis added). There is
no dispute JH was well over 16 years old at the time of the instant offenses, and that defendant

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was considerably more than four years older than her. So, because the offenses at issue were Tier
III offenses, they were listed offenses under SORA and were therefore considered “sexual assault”
under MCL 768.27b. MCL 768.27b permitted the prosecution to admit the evidence of
defendant’s past behavior and CSC-II conviction.13

The next issue is whether the prior CSC-II conviction was relevant, for purposes of MRE
401 and 402, and whether the probative value was substantially outweighed by the danger of unfair
prejudice under MRE 403. MRE 402 provides that irrelevant evidence is inadmissible at trial.
MRE 401 explains that evidence is relevant if it tends to make a fact more or less probable than
the fact would be without the evidence. MRE 403 adds that relevant evidence may nevertheless
be excluded at trial when the probative value of the evidence is substantially outweighed by the
danger of unfair prejudice. This Court has explained that there are two prongs to this inquiry. First,
the court must determine whether the introduction of the prior acts would be unfairly prejudicial,
and second, the court must weigh the probative value of the evidence against the danger of unfair
prejudice. Cameron, 291 Mich App at 611.

The trial court in the present case found that the other-acts evidence relevant and that the
danger of unfair prejudice did not substantially outweigh its probative value. In finding that the
evidence was relevant, the trial court relied, in part, upon this Court’s decision in Cameron, 291
Mich App at 610. In Cameron, the defendant was facing allegations of domestic violence arising
out of an assault on his ex-girlfriend. There was evidence that the defendant had a pending
domestic violence charge for a prior confrontation with his ex-girlfriend, as well as evidence of
additional violent incidents between them and also between the defendant and another former love
interest. Id. at 609-610. We agreed with the trial court’s findings that the evidence was relevant
to establish the credibility of the ex-girlfriend to show that he acted violently towards her, to show
that his actions were not accidental, and to demonstrate the defendant’s “propensity to commit acts
of violence against women who were or had been romantically involved with him.” Id. at 612.
Further, we found that admission of the evidence did not violate MRE 403 because the trial court
minimized the prejudicial effect of the bad-acts evidence by properly instructing the jury (that the
issue in the case was whether the defendant committed the charged offense) and because any
prejudicial effect of the trial court’s decision to allow the prior bad-acts evidence did not
substantially outweigh the probative value of the evidence. Id. at 611-612.

In the present case, we find that the court did not abuse its discretion when it found the
prior acts to be relevant and material to the issues in the case, in order to provide context for
defendant’s conduct in light of his history with JH. See Cameron, 291 Mich App at 610. Also, as
the trial court noted, “the evidence tends to show [d]efendant’s propensity to victimize

13
While defendant does not raise an express challenge on appeal to the fact that the conviction
was more than 10 years old, there is no dispute the prior CSC-II offense was a sexual assault, or
that it was reported within five years of the offense. So, the prior offense was admissible under
MCL 768.27b(a).

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[c]omplainant, regardless of her age,” which was likewise consistent with Cameron. Id. at 610,
612.

Turning to the issue of MRE 403, evidence is considered unfairly prejudicial when it has a
tendency “to adversely affect the objecting party’s position by injecting considerations extraneous
to the merits of the lawsuit, e.g., the jury’s bias, sympathy, anger, or shock.” People v Pickens,
446 Mich 298, 337; 521 NW2d 797 (1994) (quotation marks and citation omitted). On this issue,
this Court has recently clarified that the propensity inference of MCL 768.27b evidence should
weigh in favor of the probative value of evidence, rather than in favor of its prejudicial effect, as
would normally be the case. People v Berklund, ___ Mich App ___, ___; ___ NW3d ___ (2024)
(Docket No. 367568); slip op at 9-10. This Court noted a list of nonexhaustive factors that the
trial court may apply in this context, including:

(1) the dissimilarity between the other acts and the charged crime, (2) the temporal
proximity of the other acts to the charged crime, (3) the infrequency of the other
acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence
supporting the occurrence of the other acts, and (6) the lack of need for evidence
beyond the complainant’s and the defendant’s testimony. This list of
considerations is meant to be illustrative rather than exhaustive. [Id. at ___; slip op
at 10 (quotation marks and citation omitted).]

In Berklund, this Court upheld the trial court’s finding that a 20-year-old conviction could be
admitted at trial despite the application of MRE 403 because MCL 768.27b allowed older offenses
to be admitted under certain circumstances. Id. at ___; slip op at 10-11.

In this case, we find that the trial court did not err by holding that the evidence did not
violate MRE 403. As the court pointed out, defendant was convicted of CSC-II in relation to the
prior acts. So the prejudicial effect of the evidence is minimized and was fair because defendant
was found to have committed the earlier crime beyond a reasonable doubt. As noted earlier, any
propensity inference from the evidence would actually weigh in favor of the probative value of the
evidence. Nor was there any evidence that the prior CSC-II crimes would inject extraneous
considerations into the lawsuit or divert the jury’s attention from the issue of defendant’s guilt or
innocence. See id. at ___; slip op at 11 (noting these considerations for determining whether there
existed unfair prejudice).14 The trial court therefore did not err in balancing the danger of unfair
prejudice against the probative value of the evidence for purposes of MRE 403. Also, just as in
Cameron, 291 Mich App at 611-612, the trial court properly instructed the jury—the trial court
read a limiting jury instruction pertaining to the other-acts evidence, explaining that the jury could
not find defendant guilty for the sole reason that he was guilty of the other bad conduct. This
instruction minimized the danger of unfair prejudice because jurors are presumed to follow their
instructions. See Berklund, ___ Mich App at ___; slip op at 11.

14
Defendant fails to support his claim that the jury was given the wrong date of defendant’s CSC-
II conviction or that this error would be material to the case.

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Finally, turning to the issue of an alleged conspiracy, defendant cites no evidence in the
record to support his claim of a conspiracy between the trial court and the prosecutor. Again, “[a]n
appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims.” Payne, 285 Mich App at 195. We therefore decline to search
for a basis for defendant’s conspiracy claim.

D. SENTENCING

Next, defendant argues the trial court erred in the scoring of Offense Variables (OVs) 4,
10, and 13; in relation to the assaultive-risk screening sheet issued by the MDOC; by requiring
defendant to pay restitution; and by issuing a no-contact order as part of defendant’s sentence. We
disagree.

A defendant preserves a sentencing issue on appeal, including a challenge to the assessment
of points for an OV, by raising the issue during sentencing, in a motion for resentencing, or in a
motion to remand in this Court. People v Anderson, 322 Mich App 622, 634; 912 NW2d 607
(2018); MCR 6.429(C). Before defendant’s sentencing, defendant filed a sentencing
memorandum in which he challenged the assessment of points for OVs 4 and 10, and raised a
separate challenge to OV 13.

At sentencing, a new attorney represented defendant. Successor counsel did not reiterate
the arguments in the sentencing memorandum and instead stated, “I have myself no challenges.”
This Court has held that indicating that there are no corrections to the presentencing investigation
report (PSIR) constitutes a forfeiture of the issue, but not a waiver of the error. See People v
McChester, 310 Mich App 354, 357; 873 NW2d 646 (2015). The court also permitted defendant
to speak at length before he was sentenced, but defendant did not raise a challenge to any OVs.
Defendant likewise did not move for resentencing in the trial court, and neither motion to remand
raised an issue relating to defendant’s sentencing. Therefore, the issue is unpreserved. See
Anderson, 322 Mich App at 634. Additionally, defendant did not raise a challenge to the
restitution, the no-contact order, or the assaultive-risk-screening sheet. Therefore, those issues are
also unpreserved. See id.

In general, we review the trial court’s findings regarding a specific OV under the
sentencing guidelines for clear error, and a preponderance of the evidence must support the factual
findings. People v Baskerville, 333 Mich App 276, 291; 963 NW2d 620 (2020). “ ‘Whether the
facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the
application of the facts to the law, is a question of statutory interpretation, which an appellate court
reviews de novo.’ ” Id. at 292 (citation omitted). When a sentencing issue is unpreserved, as is
the case here, this Court will review it for plain error affecting the defendant’s substantial rights.
People v Meshell, 265 Mich App 616, 638; 696 NW2d 754 (2005).

1. OV 4

OV 4 examines the psychological injury to the victim. People v White, 501 Mich 160, 163;
905 NW2d 228 (2017). MCL 777.34 governs OV 4 and provides, in relevant part, that the trial
court must assess 10 points for OV 4 when there is “[s]erious psychological injury requiring
professional treatment.” MCL 777.34(1)(a). In contrast, the court should assess zero points when

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“[n]o serious psychological injury requiring professional treatment occurred to a victim.” MCL
777.34(1)(c). The statute explains that the court must “[s]core 10 points if the serious
psychological injury may require professional treatment. In making this determination, the fact
that treatment has not been sought is not conclusive.” MCL 777.34(2). The Michigan Supreme
Court has held that a victim’s fear during the crime, without any other showing of a psychological
injury, is not enough to assess 10 points for OV 4. See White, 501 Mich at 164. Relevant
considerations may include, among other possible psychological effects, “personality changes,
anger, fright, or feelings of being hurt, unsafe, or violated.” People v Armstrong, 305 Mich App
230, 247; 851 NW2d 856 (2014). A trial court may not simply assume that someone in the victim’s
position would have suffered a psychological injury. People v Lockett, 295 Mich App 165, 183;
814 NW2d 295 (2012).

Based on the record before us, we find that there was sufficient evidence to support a
finding, by a preponderance of the evidence, that JH experienced feelings of being hurt, unsafe, or
violated as a result of defendant’s conduct. In JH’s impact statement in the PSIR, it is noted that
JH indicated she was “doing ‘ok’ ” since the incidents giving rise to this case, but she was “very
hesitant to talk and it sounded that she was holding back tears as she was sniffling during the
conversation.” She did not want to speak about the incidents. Therefore, the interviewer did not
continue asking questions “in order to prevent further traumatizing” JH, who indicated she did not
plan to attend the sentencing. The fact that JH could not even speak about the incidents supports
that she suffered a serious psychological injury. At trial, JH gave a more detailed story about the
effect of the incidents on her psychological state. She testified that defendant assaulted her
sexually when she was a young child. JH explained that she invited defendant to move in with her
“[t]o have my dad back.” She believed she was in love with defendant during this time but later
came to realize she was not. She testified defendant’s conduct made her feel “crazy.” She also
felt “ashamed” of what happened and felt “guilty.” To further support and give context to JH’s
testimony, Dr. Henry testified about the phenomenon of a trauma bond, which occurs when there
is harm in a relationship, and the relationship develops on the basis of fear and the requirement to
meet the parent’s need in order to survive. He explained that the trauma bond can result in
romanticizing the parent-child relationship, which we conclude would explain JH’s behavior while
having sexual intercourse with defendant. When combined with JH’s testimony, Dr. Henry’s
testimony supports a finding that JH suffered a serious psychological injury requiring professional
treatment. For these reasons, the assessment of 10 points for OV 4 was supported by a
preponderance of the evidence.

Finally, we note that even if defendant could prove error in the assessment of 10 points for
OV 4, it would not be prejudicial considering that the subtraction of 10 points from defendant’s
OV score would not have altered the sentencing-guidelines range. See MCL 777.63; MCL
777.167 (designating CSC-III as a Class B crime against a person); People v Francisco, 474 Mich
82, 89 n 8; 711 NW2d 44 (2006) (“Where a scoring error does not alter the appropriate guidelines
range, resentencing is not required.”).

2. OV 10

OV 10 examines the exploitation of a vulnerable victim. MCL 777.40. In relevant part,
10 points should be assessed when “[t]he offender exploited a victim’s physical disability, mental
disability, youth or agedness, or a domestic relationship, or the offender abused his or her authority

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status.” MCL 777.40(1)(b). MCL 777.40(2) adds, “The mere existence of 1 or more factors
described in subsection (1) does not automatically equate with victim vulnerability.” The term
“exploit” is defined, in relevant part, as “to manipulate a victim for selfish or unethical purposes.”
MCL 777.40(3)(b). The term “vulnerability” is defined as “the readily apparent susceptibility of
a victim to injury, physical restraint, persuasion, or temptation.” MCL 777.40(3)(c). Finally, the
term “abuse of authority status” is defined as “a victim was exploited out of fear or deference to
an authority figure, including, but not limited to, a parent, physician, or teacher.” MCL
777.40(3)(d).

Regarding OV 10, the PSIR stated, “10 points were scored for OV 10 as the offender
exploited his father / daughter domestic relationship with his daughter / victim [JH] by forcing her
to engage in sexual intercourse with him.” Defendant argues that this statement was incorrect
because it was “falsely alleged” that he exploited the father-daughter relationship. The evidence
at trial supported, by a preponderance of the evidence, that defendant exploited his authority status
to engage in the sexual activities with JH. To start, although the PSIR defined the parties’
relationship as a “domestic relationship,” MCL 777.40 does not define “domestic relationship.”
We conclude that even assuming that the father-daughter relationship did not constitute a domestic
relationship, defendant was an authority figure, as defined in MCL 777.40(3)(d), because he was
JH’s parent.

The evidence also supported that defendant manipulated JH for his own selfish purposes
beginning when she was six or seven years old and continuing into her adulthood after he was
released from prison. JH testified that when she was about six or seven years old, defendant had
sexual encounters with her. After she received communication with defendant in early 2019, JH
testified that she was worried and a little afraid, but nevertheless decided to respond. The two met
in person shortly thereafter, and JH noticed defendant had “a weird smell,” and she did not think
he was taking care of himself. She felt bad for defendant and wanted to take care of him. JH
explained that she invited defendant to move in with her “[t]o have my dad back.” She believed
she was in love with defendant. She testified that after moving into the home, defendant became
“very clingy” and jealous. She would have to rebuke defendant’s sexual advances. Eventually,
during their final sexual encounter, at the end of 2020, JH recalled defendant “tried to coerce” her
into having sex, and she attempted to push him off her. That incident occurred when she was
drinking alcohol and took an Ambien. She could not recall what happened next. JH’s testimony
supports a finding of an exploitation of the father-daughter relationship.

As explained earlier, Dr. Henry’s expert testimony provided some context and explanation
for JH’s behavior. His explanation about trauma bonds provided some rationale for why JH would
have entered into a seemingly consensual relationship with defendant. When combined with JH’s
testimony about how she felt throughout her time living with, and having sexual intercourse with,
defendant, Dr. Henry’s testimony supported that defendant exploited a vulnerable victim. The
assessment of 10 points for OV 10 was supported by a preponderance of the evidence.

3. OV 13

OV 13 examines whether there was a “continuing pattern of criminal behavior.” MCL
777.43(1). The court should assess 25 points for OV 13 when “[t]he offense was part of a pattern
of felonious criminal activity involving 3 or more crimes against a person.” MCL 777.43(1)(c).

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When “[n]o pattern of felonious criminal activity existed,” the court should not assign any points
for OV 13. MCL 777.43(1)(g). When assigning points under OV 13, “all crimes within a 5-year
period, including the sentencing offense, shall be counted regardless of whether the offense
resulted in a conviction.” MCL 777.43(2)(a).

The trial court did not err by assessing 25 points for OV 13. In his Standard 4 brief,
defendant argues that the PSIR contained inaccurate information that led the trial court to assess
25 points for OV 13. The PSIR provided, in relevant part, as follows: “25 points were scored for
OV 13 as the offender forced victim [JH] to engage in sexual intercourse against her will from
March 2020 to November 2020. The unwanted / forced sexual intercourse took place several times
over a period of several months.” These statements were not erroneous.

There is no dispute that the offenses giving rise to the five counts of CSC-III all occurred
within a five-year period. See MCL 777.32(2)(a). Defendant’s argument centers, instead, on
whether the sexual intercourse was “unwanted” or “forced.” However, there is no requirement in
OV 13 that the felonious activity involve force or unwanted behavior. Rather, what is required is
that the activity involved three or more crimes “against a person.” CSC-III is designated as a crime
against a person. MCL 777.167. Therefore, defendant’s CSC-III convictions would qualify as
crimes against a person for purposes of assessing points for OV 13.

Finally, there is no prohibition on considering multiple offenses tried in the same case for
purposes of OV 13. In fact, this Court has held that trial court may consider multiple concurrent
offenses arising from the same incident as part of the pattern of felonious activity provided that
the offenses arise from separate felonious acts. See People v Carll, 322 Mich App 690, 705; 915
NW2d 387 (2018); People v Gibbs, 299 Mich App 473, 487; 830 NW2d 821 (2013). Here,
multiple separate instances of sexual intercourse were alleged. Accordingly, the trial court did not
err by considering the five separate criminal sexual conduct counts for purposes of assessing 25
points for OV 13. See People v Wilkens, 267 Mich App 728, 743-744; 705 NW2d 728 (2005)
(applying the same rationale to a criminal sexual conduct case).

Defendant further argues that because charges the prosecution filed against him for
assaulting a prison officer, which were pending during defendant’s sentencing, were later
dismissed, defendant did not engage in a pattern of three or more crimes against a person.
However, defendant’s argument overlooks that he was convicted on five counts of CSC-III
involving five distinct acts. There is no indication the court considered the assaulting or
obstructing charges pertaining to the prison officer, and there was no need for the court to do so
because defendant was convicted of five distinct CSC-III crimes. These crimes constituted three
or more crimes against a person. Therefore, the trial court did not err by assessing 25 points for
OV 13.

4. ASSAULTIVE-RISK SCREENING

Next, defendant argues the Assaultive Risk Screening Sheet prepared by the MDOC after
defendant’s sentencing incorrectly concluded that defendant was a “middle (potential high)
assaultive risk.” He argues he should have been sent to a low-security prison rather than a high-
security prison, where he alleges to have been subjected to harassment. Defendant’s argument
focuses on the fact that the MDOC categorized him as a middle (potential high) assaultive risk

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after concluding the crime description was “Sex Assault.” This issue, as well as the issue of
defendant’s treatment in prison, is not within the scope of this appeal considering that this
designation was made by the MDOC following defendant’s sentencing, and not by the trial court
at sentencing. See MCR 7.202(6)(b)(ii) (explaining, in relevant part, that a final order includes
the original sentence imposed following a conviction in a criminal case). Therefore, defendant
cannot raise this argument against the MDOC in the context of his criminal case.

5. RESTITUTION AND NO CONTACT

Finally, defendant argues the trial court should not have ordered him to pay restitution or
to have no contact with JH. Defendant provides no legal basis for why either ruling was incorrect,
and has therefore abandoned the issue on appeal. See Payne, 285 Mich App at 195. Regardless,
both rulings were legally permissible. A court shall order the defendant “to ‘make full restitution
to any victim of the defendant’s course of conduct that gives rise to the conviction or the victim’s
estate.’ ” People v Garrison, 495 Mich 362, 367; 852 NW2d 45 (2014) (citation omitted). See
also MCL 780.766; MCL 769.1a. Again, defendant provides no legal basis for why the restitution
award was improper, particularly considering the evidence that defendant damaged JH’s property
and caused her emotional harm, and we decline to search for that basis for him.

The same is true for the no-contact order. In People v Lafey, ___ Mich App ___, ___; ___
NW3d ___ (2024) (Docket No. 361936); slip op at 13, this Court recently noted that “there is some
support for the proposition that courts have the inherent authority to impose a limited no-contact
order as a condition of sentence for protective, not punitive, purposes.” However, in that case, the
court’s order went beyond the court’s authority by prohibiting contact with all individuals outside
of prison except legal counsel. Id. at ___; slip op at 13. Here, because the court imposed a limited
no-contact order for protective purposes, the order fell within the court’s inherent authority. The
no-contact order did not err by imposing this restriction at sentencing.

E. VICTIM IMMUNITY

Defendant next argues that the lower courts and prosecution all erred by allowing JH to
testify after she was allegedly granted immunity. We disagree.

Defendant did not raise the issue of an alleged witness-immunity error before trial.
Therefore, the issue is unpreserved and reviewed for plain error. See Carines, 460 Mich at 763.
As for defendant’s related claim of prosecutorial error,15 claims of prosecutorial error are preserved
when the defendant makes a contemporaneous objection and requests a curative instruction.
People v Mullins, 322 Mich App 151, 172; 911 NW2d 201 (2017). Defendant did not make any
objection to the alleged instance of prosecutorial error or court error. Therefore, this issue is

15
This Court has explained that less egregious claims are better characterized as “prosecutorial
error,” and the term “prosecutorial misconduct” should be reserved for only the extreme cases
where illegal conduct or conduct violating the Michigan Rules of Professional Conduct is alleged.
People v Cooper, 309 Mich App 74, 87-77; 867 NW2d 452 (2015).

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unpreserved and reviewed for plain error. See Carines, 460 Mich at 763; People v Dobek, 274
Mich App 58, 66; 732 NW2d 546 (2007).

The prosecution generally has broad discretion to decide whether to charge a defendant
and what charges to bring against the defendant. People v DeBono, 346 Mich App 64, 73; 11
NW3d 546 (2023). Defendant claims the prosecution’s decision not to charge JH with a crime,
and instead to allow her to testify as a witness in this case, constituted an error. He claims the
district court and trial court both erred by failing to correct this prosecutorial error. Claims of
prosecutorial error are decided on a case-by-case basis. Isrow, 339 Mich App at 529. “Given that
a prosecutor’s role and responsibility is to seek justice and not merely convict, the test for
prosecutorial misconduct is whether a defendant was denied a fair and impartial trial.” Dobek,
274 Mich App at 63. The prosecutor generally has great latitude in relation to his or her conduct.
People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). But the prosecutor must operate
within the law and the applicable court rules. People v Evans, 335 Mich App 76, 89; 966 NW2d
402 (2020).

The general rule is that witness immunity generally falls within the prosecutor’s discretion
to request that the court grant a witness immunity. See People v Schmidt, 183 Mich App 817, 824;
455 NW2d 430 (1990). Defendant claims the alleged decision to grant JH immunity and allow
her to testify violated MCL 767.19a. This statute applies in the context of grand-jury proceedings
and provides for a procedure through which a prosecutor may apply to a judge for an order granting
immunity to a person who might give testimony before the grand jury.

But the record does not indicate that an order granting immunity was provided in this case.
In fact, there is no indication that JH was granted immunity under a court order. Instead, it appears
the prosecution simply made a discretionary decision against charging her with a crime, and
instead called her as a witness at trial. Because MCL 767.19a did not apply, there was no
requirement to follow the procedure set forth therein, and no plain error on the part of the
prosecution or the courts occurred.

F. CHILD-SEXUAL-ABUSE EXPERT

Defendant additionally argues that the trial court erred by admitting evidence by a child-
sexual-abuse expert, Dr. Henry, at trial. Again, we disagree.

As explained earlier, “[t]o preserve an evidentiary issue for review, a party opposing the
admission of evidence must object at trial and specify the same ground for objection that it asserts
on appeal.” Aldrich, 246 Mich App at 113. Defense counsel objected to the admission of Dr.
Henry’s expert testimony at trial, but on different grounds. He argued that Dr. Henry was not
qualified to render any opinions about adult victims. Defendant did not argue, as he does on
appeal, that Dr. Henry’s testimony should not be admitted because the evidence did not support
that defendant raped JH. Therefore, because the specific ground for objection asserted on appeal
was not raised in the trial court, the issue is unpreserved and reviewed for plain error. See Carines,
460 Mich at 763.

In this case, defendant does not challenge Dr. Henry’s qualifications or argue that expert
testimony was unnecessary. Rather, he argues the trial court erred by admitting expert testimony

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to build a rape case against defendant when the evidence did not support that JH was raped.
Defendant’s argument lacks merit because the prosecution did not maintain that defendant “raped”
JH. Rather, Dr. Henry testified about the effect of a trauma bond when an adult victim has been
abused in childhood, which can make it difficult to set boundaries in the relationship. Dr. Henry’s
testimony was relevant to JH’s state of mind, and to explain why she may have entered into a
seemingly consensual sexual relationship and living situation with defendant. Thus, defendant has
not demonstrated plain error.

G. 180-DAY RULE

Next, defendant argues the trial court erred by failing to dismiss the case under the 180-
day rule because defendant waited more than six months for an independent forensic examination.
We disagree.

A motion to dismiss based on a violation of the 180-day rule is reviewed for an abuse of
discretion. People v Witkoski, 341 Mich App 54, 59; 988 NW2d 790 (2022). MCL 780.131(1)
outlines the requirements under the 180-day rule and provides, in relevant part:

Whenever the department of corrections receives notice that there is
pending in this state any untried warrant, indictment, information, or complaint
setting forth against any inmate of a correctional facility of this state a criminal
offense for which a prison sentence might be imposed upon conviction, the inmate
shall be brought to trial within 180 days after the department of corrections causes
to be delivered to the prosecuting attorney of the county in which the warrant,
indictment, information, or complaint is pending written notice of the place of
imprisonment of the inmate and a request for final disposition of the warrant,
indictment, information, or complaint.

When a violation of the 180-day rule occurs, “no court of this state shall any longer have
jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any
further force or effect, and the court shall enter an order dismissing the same with prejudice.” MCL
780.133. A violation of the 180-day rule is distinct from a speedy trial violation. Witkoski, 341
Mich App at 60. Also, under the 180-day rule, trial does not necessarily have to occur within 180
days. Id. “Rather, if apparent good-faith action is taken well within the period and the people
proceed promptly and with dispatch thereafter toward readying the case for trial, the condition of
the statute for the court’s retention of jurisdiction is met.” Id. (quotation marks and citation
omitted). In other words,

the rule requires dismissal of the case if the prosecution fails to commence action
on charges pending against an inmate within 180 days after the [Department]
delivers notice of the inmate’s imprisonment . . . [b]ut the rule does not require that
a trial be commenced or completed within 180 days of the date notice was
delivered. [Id. at 61 (quotation marks and citations omitted; first alteration in
original).]

The prosecutor must act promptly to move the case to the point in which it is ready for trial within
the 180-day period. Id.

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Defendant’s argument appears to hinge on a mistaken belief that the 180-day rule requires
that he be tried within 180 days of the commencement of the case, which is not accurate. Rather,
there is no dispute the prosecution commenced this matter timely within the 180-day-rule
requirements. See MCL 780.131(1); Witkoski, 341 Mich App at 61. There is likewise no evidence
in the record that the MDOC delivered written notice of the place of imprisonment and a request
for final disposition of the case, as is required to trigger the requirements of MCL 780.131(1).
Even assuming such written notice occurred, the rule does not require that a trial commence or be
completed within the 180-day period. The del

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11093494. Public record. Not legal advice.