People of Michigan v. Mary Ann Stafford

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

August 24, 2017

Plaintiff-Appellee,

v No. 331835

Wayne Circuit Court

CLIFFORD LEWIS STAFFORD, LC No. 15-001184-01-FH

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 332007

Wayne Circuit Court

MARY ANN STAFFORD, LC No. 15-006158-01-FH

Defendant-Appellant.

Before: SAAD, P.J., and SERVITTO and GADOLA, JJ.

PER CURIAM.

Defendant Clifford Stafford (Clifford) was convicted by a jury of obstruction of justice,

MCL 750.505, and acquitted of a false pretenses charge; defendant Mary Ann Stafford (Mary)

was convicted by the same jury of false pretenses greater than $20,000, MCL 750.218, and

obstruction of justice, MCL 750.505. Clifford was subsequently sentenced to 18 months’

probation, while Mary was sentenced to 1 to 10 years’ imprisonment for the false pretenses

conviction and one to five years’ imprisonment for the obstruction of justice conviction. Clifford

was additionally ordered to pay a fine, fees, and costs totaling $1,678 and to complete 200 hours

of community service; Mary was ordered to pay restitution, fees, and costs totaling $75,198.

Both defendants now appeal as of right. We affirm.

I. FACTS AND PROCEDURAL HISTORY

Defendants were charged with false pretenses based on their sale of a home at 13236

Nautica in Van Buren Township. The prosecution alleged that defendants purchased the

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property from the owners by having two friends, Emmett and Trenise Wyldon, obtain a mortgage

loan for the property for approximately $375,000 based on the purported purchase of the

property from defendants. Defendants then used the proceeds from the Wyldon’s mortgage loan

to purchase the property from the actual owners for approximately $312,000. That is,

defendant’s “sold” the property to the Wyldons before they had actually purchased the property

from the owners, and then used the mortgage money the Wyldons obtained to pay the original

owners for the property. Defendants and the Wyldons then pocketed the difference between the

purchase price paid to the original owners and the amount of the mortgage loan payout.

Defendants were charged with obstruction of justice for their subsequent efforts to blame

the property purchase on other unnamed people. The Nautica property went into foreclosure

because the Wyldons failed to make required mortgage payments. Defendants then instituted a

quiet title lawsuit in an attempt to “recover” the property. In the course of this lawsuit, they filed

affidavits in which they tried to obscure their involvement in the fraudulent property

transactions, indicating that they had not participated in the closing(s) that occurred on December

5, 2007. The prosecution further alleged that defendants pursued a false criminal complaint in an

effort to obscure their involvement in the fraudulent transactions. Defendants claimed that, to

the extent a fraudulent sale had taken place, they had not been involved and other individuals—

primarily Trenise Wyldon—had committed the fraud.

Admitted at trial were two warranty deeds, both dated December 5, 2007, that showed

that the Nautica property was purchased by Private Consumer Consulting Services (PCCS) from

the original owners for $312,500, and that the property was then sold to Trenise Wyldon by

Mary Ann Stafford, doing business as PCCS, for $395,000. Among the additional documents

admitted at trial were: an application by Trenise Wyldon for a mortgage on the Nautica property

in the amount of $375,250, dated December 3, 2007; a mortgage for that property issued by

Wells Fargo in the amount of $375,250 with the Wyldons as the borrowers and dated December

5, 2007; a settlement statement dated December 5, 2007, prepared by Reliant Title for the closing

on the Nautica property listing Trenise Wyldon as the buyer and Mary (d/b/a PCCS) as the seller,

with the sales price shown as $395,000, the gross sales amount as $408,390.40, the mortgage

loan as $375,250, an entry showing a “contribution” of $10,000 to the purchase, and an entry

showing that Trenise was to produce $23,140.93; a document dated December 5, 2007, showing

that PCCS provided $311,937 in buyer funds for the property;1 and a sheriff’s deed dated June

24, 2009, for the Nautica property showing the grantee as Wells Fargo and the borrower as the

Wyldons. Additionally, a packet of documents was admitted containing the banking records for

PCCS, which included a deposit ticket with Mary’s name in the amount of $44,195.07 dated

December 5, 2007; a check corresponding to the deposit ticket made payable to PCCS from

Reliant Title and endorsed by Mary; and a check drawn by Mary on December 14, 2007, in the

amount of $7,500 made payable to Trenise, along with a corresponding withdrawal ticket. These

documents were offered in support of the false pretenses charges.

1

A cancelled check from Reliant Title to PCCS for $311,937 that was endorsed by Mary was

also admitted.

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In support of the obstruction of justice charges, documents were admitted showing that a

quiet title action had been instituted by PCCS with regard to the Nautica property. Also admitted

were sworn affidavits from Clifford and Mary that had been filed with the quiet title complaint, a

copy of the PCCS registration as a limited liability company (LLC) dated February 14, 2008,

showing Clifford as the PCCS resident agent, and three written statements made by defendants to

the Wayne County Prosecutor’s Office Mortgage and Deed Fraud Task Force: one statement

made by Clifford, dated March 11, 2011, and two statements made by Mary, dated March 11,

2011, and June 20, 2011, respectively.

II. EXPERT WITNESS TESTIMONY

Clifford first argues that the trial court abused its discretion by refusing to allow his

expert, Richard Woonton, to testify that, in his opinion, a fraud was committed by someone, but

it was possible that defendants could have been unaware of the fraud. Clifford claims that he

was deprived of his right to present a defense by the court’s limitation of his expert’s testimony.

This claim is without merit.

Defendants moved before trial to qualify Woonton as an expert witness and the court

qualified him as an expert in mortgage procedures. The trial court ruled, however, that Woonton

could not testify regarding his opinion of whether someone could have committed fraud without

defendants’ knowledge. The issue regarding Woonton’s qualifications is therefore preserved for

appellate review. People v Connor, 209 Mich App 419, 422; 531 NW2d 734 (1995). However,

Clifford never argued that he was deprived of his right to present a defense by the trial court’s

decision to limit Woonton’s testimony. Therefore, that aspect of this issue is not preserved.

People v Buie (On Remand), 298 Mich App 50, 70-71; 825 NW2d 361 (2012) (defendant

objected on one ground, but failed to object on two other grounds so those claims were not

preserved). “[A] trial court’s decision to admit or exclude expert testimony is reviewed for an

abuse of discretion.” People v Dobek, 274 Mich App 58, 93; 732 NW2d 546 (2007). “The trial

court abuses its discretion when its decision falls outside the range of principled outcomes or

when it erroneously interprets or applies the law.” People v Lane, 308 Mich App 38, 51; 862

NW2d 446 (2014). We review unpreserved constitutional claims for plain error affecting

substantial rights. People v Carines, 460 Mich 750, 752-753, 764; 597 NW2d 130 (1999).

At a pretrial hearing, Woonton described his background in the banking industry. He

explained how mortgage closings operate and testified that he had attended mortgage closings.

He admitted that he had not worked for Wells Fargo, but he insisted that he was familiar with

their policies and procedures. He admitted that he had never been a mortgage fraud investigator,

although he had worked with the F.B.I. fraud investigation unit. Based on his statements under

oath, Woonton’s testimony could be summarized as follows: his review of the documents and

his knowledge of proper mortgage procedures led him to believe that people other than the

Staffords arranged this fraud, and he did not think that the Staffords were involved because they

did not get a lot of money out of the fraud and they did not keep all of the money they received

during the transaction for themselves, but instead paid some of it out to other people. The trial

court ruled that it would allow Woonton to testify as an expert to explain the transaction that

took place, but would not permit him to address “whether or not the Staffords committed the

crimes they’re charged with” or “whether or not anyone else in the scene committed fraud.”

Clifford argues that the trial court abused its discretion by limiting Woonton’s testimony.

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MRE 702 set forth the standards applicable to expert testimony and states the following:

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 704 provides that “[t]estimony in the form of an opinion or inference otherwise admissible

is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” The

trial court performs a “gatekeeper” role by making the initial decision whether a proposed expert

witness is qualified to offer testimony and whether that testimony would be reliable. People v

Bynum, 496 Mich 610, 625; 852 NW2d 570 (2014). “As the rule itself makes clear, however,

such testimony must be ‘otherwise admissible,’ thereby implicating, inter alia, the ‘helpfulness’

requirement.” People v Smith, 425 Mich 98, 107; 387 NW2d 814 (1986).

Clifford has failed to explain how Woonton’s excluded testimony, which he essentially

concedes amounted to a speculative belief based on the documents he was shown, was a proper

opinion for an expert witness to offer or how it was relevant to the charges against defendants.

As the trial court reasoned, there is simply nothing about the witness’s proposed testimony that

required expert testimony. Moreover, when he testified at trial, it turned out that Woonton had

not been given all the relevant documents to review. Woonton also admitted he was not present

at the closing on December 5, 2007. Therefore, Woonton’s proposed testimony on the ultimate

issue of whether defendants participated in the fraud was not based on “sufficient facts or data.”

MRE 702. Nor did defendant show that Woonton “applied the principles and methods reliably to

the facts of the case.” Id. In fact, it does not appear from his testimony that Woonton applied

any principles or methods to the facts; he simply decided that he could not believe that

defendants had participated in the fraud because they did not profit enough. Accordingly,

Woonton’s testimony did not satisfy the basic requirements of MRE 702. Furthermore,

Woonton’s excluded testimony in essence amounted to an opinion regarding whether the

Staffords committed fraud. An expert’s opinion may not extend to legal conclusions, and an

expert witness is not permitted to tell the jury how to decide a case. See Carson Fischer Potts &

Hyman v Hyman, 220 Mich App 116, 122-123; 559 NW2d 54 (1996). For these reasons, the

trial court did not abuse its discretion by limiting Woonton’s testimony.

With regard to Clifford’s claim on appeal that exclusion of Woonton’s testimony

deprived him of his right to present a defense, he has not established plain error. Carines, 460

Mich at 764. Clifford chose to testify and therefore presented his defense that he was not present

at the closing on December 5, 2007, and was not involved in any fraud that might have occurred.

Defendant argues that his expert should have been permitted “to testify that the fraud that

occurred on December 5, 2007 could have been perpetrated without the knowledge or presence

of [Clifford].” However, as Woonton inherently conceded, he was not in a position to offer this

testimony because he was not present at the closing and had not reviewed all the relevant

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documents. Woonton’s proposed testimony also did not satisfy the requirements of MRE 702.

Therefore, defendant was not deprived by the court’s ruling of the right to present a defense.

III. DENIAL OF DIRECTED VERDICT MOTION

Clifford next argues that the trial court erred by denying his motion for a directed verdict

on the obstruction of justice count, which he made at the conclusion of the prosecution’s case.

“When reviewing a trial court’s decision on a motion for a directed verdict, this Court reviews

the record de novo to determine whether the evidence presented by the prosecutor, viewed in the

light most favorable to the prosecutor, could persuade a rational trier of fact that the essential

elements of the crime charged were proved beyond a reasonable doubt.” People v Aldrich, 246

Mich App 101, 122; 631 NW2d 67 (2001).

In People v Thomas, 438 Mich 448, 455-458; 475 NW2d 288 (1991), our Supreme Court

stated the following:

Obstruction of justice is generally understood as an interference with the

orderly administration of justice. This Court, in People v Ormsby, 310 Mich 291,

300; 17 NW2d 187 (1945), defined obstruction of justice as “ ‘impeding or

obstructing those who seek justice in a court, or those who have duties or powers

of administering justice therein.’ ” In People v Coleman, 350 Mich 268, 274; 86

NW2d 281 (1957), this Court stated that obstruction of justice is “committed

when the effort is made to thwart or impede the administration of justice.” While

these definitions adequately summarize the essential concept of obstruction of

justice, we believe they lack the specificity necessary to sustain a criminal

conviction.

* * *

Like breach of the peace, at common law obstruction of justice was not a

single offense but a category of offenses that interfered with public justice.

Blackstone discusses twenty-two separate offenses under the heading “Offences

against Public Justice.” If we now simply define obstruction of justice as an

interference with the orderly administration of justice, we would fail to recognize

or distinguish it as a category of separate offenses. We find no basis for this at

common law.

To warrant the charge of common-law obstruction of justice, defendant’s

conduct must have been recognized as one of the offenses falling within the

category “obstruction of justice.” [Footnotes omitted.]

In People v Vallance, 216 Mich App 415, 418-419; 548 NW2d 718 (1996), this Court interpreted

our Supreme Court’s decision in Thomas as follows:

The problem presented by the Thomas opinion is the proper interpretation

of its discussion regarding obstruction of justice. Did Thomas limit the scope of

offenses constituting “obstruction of justice” to the twenty-two offenses listed by

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Blackstone? Or was the Court merely referring to Blackstone’s list to illustrate

the point that, at common law, “obstruction of justice” was not a single offense

but rather a category of offenses?

We find nothing in the Thomas analysis to suggest that offenses

recognized at common law as obstruction of justice are, nonetheless, not to be so

considered if they are not included in the Blackstone list. Accordingly, we

conclude that the Supreme Court’s reference in Thomas to Blackstone was merely

to illustrate the point that at common law, “obstruction of justice” is not a single

offense, but a category of offenses that interfere with public justice. A charge of

obstruction of justice was warranted if defendant’s conduct would have been

recognized as one of the many offenses falling within the rubric “obstruction of

justice” at common law. [Quotation marks and citations omitted.]

In People v Kissner, 292 Mich App 526, 540; 808 NW2d 522 (2011), this Court upheld the

defendant’s conviction of attempted obstruction of justice. Noting that this Court had previously

held in Vallance that obstruction of justice was not limited to the 22 offenses listed by

Blackstone’s Commentaries, this Court found ample evidence to support the defendant’s

conviction where the evidence established that he had filed a false motion and affidavit. Kissner,

292 Mich App at 540-541. Therefore, this Court has previously held that filing a false affidavit

in a lawsuit can constitute obstruction of justice.

Defendant lists the evidence that supports his view of the case, but ignores and fails to

discuss the prosecution’s evidence or to consider that evidence in the light most favorable to the

prosecution. Considered in the appropriate manner, the evidence established that the affidavit

Clifford filed in support of the quiet title action was false. Contrary to Clifford’s statement in his

affidavit that he “never appeared in person at the alleged closing of 12-5, 2007,” the testimony of

Avis Washington established that Clifford did personally attend that closing. Further, Clifford’s

statements in his affidavit that he never authorized the sale of the Nautica property to Trenise

Wyldon, and that he did not even know of the sale of the property to Trenise, were inconsistent

with the $44,000 check, dated December 5, 2007, which was deposited into the PCCS bank

account. Finally, Clifford sought to initiate a mortgage fraud complaint, and in connection with

that he gave a written statement to Mary Jones in which it appears that he lied when he claimed

that neither he nor Mary had attended the Nautica property closing and when he claimed that he

got $312,500 to purchase the Nautica property “[f]rom the proceeds from the Farmington Hills

purchase.” No evidence was presented to support this claim. Instead, the prosecutor’s evidence

showed that the money came from the mortgage Trenise took out on the Nautica property and

that this mortgage money was then used to purchase the property from the original owners.

Considered in a light most favorable to the prosecution, the evidence showed that

Clifford filed a false affidavit in the quiet title action and attempted to initiate a mortgage fraud

investigation based on false written statements. These acts constituted an “interference with the

orderly administration of justice . . . .” Kissner, 292 Mich App at 540. Therefore, the trial court

did not err by denying defendant’s motion for a directed verdict.

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IV. SUFFICIENCY OF THE EVIDENCE

Relatedly, Clifford argues that the prosecution failed to present sufficient evidence to

prove beyond a reasonable doubt that he obstructed justice. We disagree.

Appeals regarding the sufficiency of the evidence are reviewed de novo. In

reviewing the sufficiency of the evidence, this Court must view the evidence in

the light most favorable to the prosecution and determine whether a rational trier

of fact could find that the essential elements of the crime were proved beyond a

reasonable doubt. Juries, and not appellate courts, hear the testimony of

witnesses; therefore, we defer to the credibility assessments made by a jury. It is

for the trier of fact . . . to determine what inferences may be fairly drawn from the

evidence and to determine the weight to be accorded those inferences. The

prosecution need not negate every reasonable theory of innocence, but need only

prove the elements of the crime in the face of whatever contradictory evidence is

provided by the defendant. Circumstantial evidence and the reasonable inferences

that arise from that evidence can constitute satisfactory proof of the elements of

the crime. We resolve all conflicts in the evidence in favor of the prosecution.

[People v Henderson, 306 Mich App 1, 8-9; 854 NW2d 234 (2014) (quotation

marks and citations omitted.]

As earlier noted, a defendant’s conviction for attempted obstruction of justice can be

made out based on a defendant’s filing of a false motion and affidavit in a lawsuit. Kissner, 292

Mich App at 540. In this case, the evidence supported that Clifford filed a false affidavit and a

false written statement in the course of a quiet title lawsuit and an attempt to initiate a mortgage

fraud complaint. These actions involved “interference with the orderly administration of justice”

and thus constituted obstruction of justice. Id. Clifford relies on the Thomas decision to argue

that his actions did not constitute conduct falling within any of the offenses listed in that case

from Blackstone’s Commentaries. As we have noted, however, this Court has held that Thomas

did not limit obstruction of justice to the 22 common-law offenses listed in Blackstone’s

Commentaries. Vallance, 216 Mich App at 418-419. Moreover, in Kissner, this Court held that

attempted obstruction of justice could be established by showing that the defendant filed a false

motion and affidavit in an attempt to convince a court to grant him a new trial. Because Clifford

does not reanalyze the evidence in the context of this issue, but rather relies on Thomas as

controlling authority, his failure to cite or discuss Kissner is fatal to his claim.

In any event, the evidence is overwhelmingly sufficient to establish Clifford’s guilt of

obstruction of justice. In his affidavit, Clifford swore that (1) he never authorized anyone to

appear on his behalf at the December 5, 2007 closing relating to the sale of the Nautica property

to Trenise, (2) he never authorized the sale of that property to Trenise, and (3) he never knew of

the sale of that property to Trenise. In a written statement to Mary Jones, Clifford again claimed

that neither he nor Mary attended the closing. However, in that same document, he admitted that

PCCS was his company, that PCCS purchased the property, and that he entered into an

agreement with the Wyldons for them to purchase the Nautica property, an admission directly

contrary to his statement in his affidavit. Further, Avis Washington testified that both Clifford

and Mary attended the December 5, 2007 closing, and the evidence established that Mary signed

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numerous documents at that closing. Clifford testified that he was aware that sometime around

December 5, 2007, a $44,000 check from Reliant Title to PCCS was deposited into the PCCS

account, and he claimed that this money was used so that “[w]e paid Trenise directly either

electronically or with a money order and she would make the payments on both houses because

both of them [were] in her name.” According to Clifford, the referenced houses were the

Nautica property and a home on Country Ridge in Farmington Hills. Clifford’s own testimony

therefore established that, contrary to the assertions in his affidavit, he was aware of the sale of

the Nautica property to Trenise. Clifford also described how it was decided that Trenise should

purchase the Nautica property because she had a good credit score. This evidence established

that Clifford’s affidavit in support of the quiet title action filed by PCCS was false. This

evidence also established that he made false assertions in his written statement to Mary Jones in

order to initiate a mortgage fraud complaint against the Wyldons. Considered in a light most

favorable to the prosecution, this evidence was sufficient to prove Clifford’s guilt for obstruction

of justice beyond a reasonable doubt.

V. INEFFECTIVE ASSISTANCE OF COUNSEL

Clifford next argues that his trial counsel failed to provide effective assistance of counsel

when he failed to object to the court’s allegedly inadequate instruction concerning obstruction of

justice. To establish ineffective assistance of counsel, a defendant must show that his counsel’s

performance fell below an objective standard of reasonableness under prevailing professional

norms, and that a reasonable probability exists that, without counsel’s unprofessional errors, the

outcome of the proceedings would have been different. People v Russell, 297 Mich App 707,

715-716; 825 NW2d 623 (2012). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland v Washington, 466 US 668, 694; 104 S Ct

2052; 80 L Ed 2d 674 (1984).

With respect to obstruction of justice, the trial court instructed the jury as follows:

[F]or obstruction of justice the People are obligated to prove the following

elements beyond a reasonable doubt:

First, that the defendant knowingly assisted in presenting a document in a

court proceeding.

Second, that this document was false and fraudulent.

Third, that the defendant knew that this document was false and fraudulent

at the time he or she assisted in presenting it.

And, fourth, that when [the] defendant did this, he or she had the intent to

impede, thwart, or interfere with the administration of justice.

Clifford contends that the fourth element in the instruction is defective considering our

Supreme Court’s reasoning in Thomas, 438 Mich at 455-456, that while the statement

“obstruction of justice is ‘committed when the effort is made to thwart or impede the

administration of justice’ . . . adequately summarize[d] the essential concept of obstruction of

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justice, [the Court] believe[d] [it] lack[ed] the specificity necessary to sustain a criminal

conviction.” (Citation and footnote omitted.) Clifford fails to note that the Thomas Court

approved of the general statement as “adequately summariz[ing] the essential concept of

obstruction of justice,” but merely concluded that more specificity was necessary to define the

offense sufficiently to support a criminal conviction. The instruction in this case provides the

specificity that Thomas determined was lacking in the generalized statement.

The instruction in this case lists, with specificity, the three acts defendant must be found

to have done in order to have obstructed justice: (1) he had to have knowingly assisted in

presenting a document in a court proceeding; (2) the document had to be false and fraudulent;

and (3) he had to have known the document was false and fraudulent at the time he assisted in

presenting it. Having done those specific acts, the fourth element merely adds the intent

requirement: that defendant intended that the false and fraudulent document he presented in the

court proceeding would impede, thwart, or interfere with the administration of justice. This

instruction supplies the specificity that our Supreme Court in Thomas believed was “necessary to

sustain a criminal conviction.” Because the trial court’s instruction correctly relayed the

elements of the offense, any objection by defense counsel would have been futile. Counsel

cannot be deemed ineffective for failing to raise a futile objection. People v Pinkney, 316 Mich

App 450, 473; 891 NW2d 891 (2016). Clifford’s ineffective assistance claim therefore fails.

VI. JOINT TRIALS

Clifford finally argues that the trial court abused its discretion by denying his motion to

sever his trial from Mary’s trial. We review for an abuse of discretion a trial court’s decision to

join defendants for trial. People v Hana, 447 Mich 325, 338; 524 NW2d 682 (1994).

In his motion, Clifford speculated that it was possible that Mary might choose to testify

against him at a joint trial. Although he admitted that he did not anticipate that she would do so,

he claimed that if she did, “it is at this time that [his] privilege would be violated.” Clifford also

claimed that, because numerous documents would be admitted that contained Mary’s name but

not his, the jury would be confused and might conclude that, because Mary’s name was on the

documents, he must have had knowledge of them. Clifford further claimed that his right to

remain silent could be prejudiced if evidence was submitted against Mary and the prosecution

suggested that Clifford had knowledge of this evidence, because it could force him to surrender

his right to remain silent in order to deny the suggestion. Finally, Clifford stated that “it would

compel [him] to testify which could conceivably impact the husband-wife privilege.”

Defendants were both charged with the same two offenses, false pretenses over $20,000

and obstruction of justice, and the charges were based on the same factual and documentary

evidence. The court rule governing mandatory severance of trials, MCR 6.121(C), states, “On a

defendant’s motion, the court must sever the trial of defendants on related offenses on a showing

that severance is necessary to avoid prejudice to substantial rights of the defendant.” (Emphasis

added.) In Hana, 447 Mich at 346, our Supreme Court explained that “[s]everance is mandated

under MCR 6.121(C) only when a defendant provides the court with a supporting affidavit, or

makes an offer of proof, that clearly, affirmatively, and fully demonstrates that his substantial

rights will be prejudiced and that severance is the necessary means of rectifying the potential

prejudice.” “[F]ailure to make this showing in the trial court, absent any significant indication

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on appeal that the requisite prejudice in fact occurred at trial, will preclude reversal of a joinder

decision.” Id. at 346-347.

Clifford did not submit any affidavit or offer of proof with his motion, other than his

assertions that Mary could potentially testify against him at trial. Therefore, he failed to make

the required showing. On appeal, he has failed to show that the requisite prejudice in fact

occurred at the trial. At trial, Clifford chose to testify and he did not attempt to incriminate

Mary; Mary did not testify and therefore could not incriminate him. Accordingly, pursuant to

Hana, this Court may not reverse the trial court’s joinder decision.

Furthermore, the marital and spousal privileges belong to the testifying spouse, not the

spouse who does not testify. See MCL 600.2162(2) and (7). At trial, Mary did not testify.

Neither defendant blamed the other. Clifford failed to demonstrate that there were antagonistic

defenses or that his substantial rights would be prejudiced by a joint trial. On appeal, he has

failed to show that any prejudice actually occurred to him at trial. Therefore, he has failed to

establish that the trial court abused its discretion by denying his motion for separate trials.

VI. CRUEL OR UNUSUAL PUNISHMENT

Mary argues on appeal that her sentence calling for a minimum of one year of

incarceration for both of her convictions violated the constitutional prohibition against cruel or

unusual punishment. Const 1963, art 1, § 16; US Const, Am VIII. According to the Michigan

Department of Corrections Offender Tracking Information website, Mary has completed her

incarceration, was paroled on February 14, 2017, and is scheduled to be discharged from parole

on February 14, 2018.2 Because Mary has completed her term of incarceration, her claim that

her prison sentence violated the constitutional prohibition against cruel or unusual punishment is

moot. People v Cathey, 261 Mich App 506, 510; 681 NW2d 661 (2004) (“An issue is moot

when an event occurs that renders it impossible for the reviewing court to fashion a remedy to

the controversy.”). Mary argues that this issue is not moot because she is still subject “to parole

conditions versus probation conditions.” However, she cites no authority in support of this

position and her arguments on appeal only relate to whether her prison sentence, not her parole

conditions, constitutes cruel or unusual punishment.3

VII. RESTITUTION

Mary also contends that the prosecution failed to prove that she owed $96,213.42 in

restitution. MCL 780.766(2) provides that, when sentencing a defendant, “the court shall order .

. . the defendant make full restitution to any victim of the defendant’s course of conduct that

2

See < http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=972040 > (accessed

June 30, 2017)

3

Moreover, Mary was sentenced within the applicable sentencing guidelines range. A sentence

within the guidelines range is presumptively proportionate. People v Johnson, 309 Mich App

22, 34; 866 NW2d 883, vacated in part on other grounds 497 Mich 1042 (2015). A proportionate

sentence is not cruel or unusual. Id. at 35.

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gives rise to the conviction or to the victim’s estate.” The original amount of restitution

discussed at sentencing was $96,213.42. Defense counsel objected that this amount did not take

into account payments that were made before the foreclosure occurred. The parties discussed

some of the figures, and they were given an opportunity to jointly arrive at an appropriate

amount; however, they failed to do so. The court resolved the matter by ordering a reduced

amount of restitution of $75,000.4 Defense counsel did not object; instead, he thanked the court.

Defense counsel never asked to reopen the restitution inquiry and never requested an evidentiary

hearing. Even though appellate counsel subsequently moved for post-sentencing relief, neither a

recalculation of the amount of restitution nor an evidentiary hearing was requested.

On appeal, Mary only makes reference to the restitution amount of $96.213.42, but the

final restitution amount ordered was $75,000, and Mary does not challenge this amount on

appeal. Therefore, Mary has abandoned any claim of error on appeal. See People v Iannucci,

314 Mich App 542, 545; 887 NW2d 817 (2016) (“[F]ailure to brief the merits of an allegation of

error constitutes an abandonment of the issue.”) (quotation marks and citation omitted).5

Affirmed.

/s/ Henry William Saad

/s/ Deborah A. Servitto

/s/ Michael F. Gadola

4

The court explained that if defense counsel could demonstrate that the amount should be even

lower than $75,000, it would allow a restitution hearing to address the matter.

5

Even if we were to review this issue for plain error, Mary has not established that any error

occurred. “[T]he court is entitled to rely on the amount recommended in the presentence

investigation report, which is presumed to be accurate unless the defendant effectively

challenges the accuracy of the factual information.” People v Gahan, 456 Mich 264, 276 n 17;

571 NW2d 503 (1997), overruled on other grounds by People v McKinley, 496 Mich 410, 424

(2014) (quotation marks and citation omitted). Because Mary failed to effectively challenge to

the accuracy of the PSIR in the trial court, the prosecution was not put to the task of proving that

its figures were correct. The PSIR recommended a restitution amount of $96,213.42, and the

trial court was permitted to rely on that figure.

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