People of Michigan v. Susan K Hernandez-Zitka

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

December 10, 2020

Plaintiff-Appellee,

V No. 349491

Ingham Circuit Court

BRUCE H. ZITKA, LC No. 17-000105-FH

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

V No. 349494

Ingham Circuit Court

SUSAN K. HERNANDEZ-ZITKA, LC No. 17-000102-FH

Defendant-Appellant.

Before: MARKEY, P.J., and METER and GADOLA, JJ.

PER CURIAM.

Defendants Bruce H. Zitka and Susan K. Hernandez-Zitka1 each appeal as of right their

convictions, following a joint jury trial, of three counts of conducting an unlicensed gambling

operation, MCL 432.218(1)(a), and three counts of using a computer to commit a crime, MCL

752.796 and MCL 752.797(3)(e). The trial court sentenced both defendants to five years’

probation, with one year to be served in jail, subject to suspension upon successful completion of

probation. In both appeals, we affirm.

1

We will refer to defendant Bruce H. Zitka as “Zitka,” and defendant Susan K. Hernandez-Zitka

as “Hernandez-Zitka.”

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This case was previously before this Court when the prosecution appealed an order granting

defendants’ motion to quash and dismissing all charges. The trial court, relying on the outcome

of an earlier civil lawsuit brought by the Norton Shores city attorney in a civil nuisance abatement

action, ruled that the prosecutor was collaterally estopped from bringing this criminal action. This

Court reversed that decision and remanded the case to the trial court. People v Zitka, 325 Mich

App 38, 53; 922 NW2d 696 (2018). This Court’s prior decision provides the following summary

of the relevant background facts that led to the civil litigation:

Defendants own and operate three Internet lounges located in Muskegon

County: The Landing Strip, The Lucky Mouse, and Fast Lane. At these

establishments, customers can open accounts to wager on and play games online,

including slot and lottery-type games. On April 14, 2015, the Michigan Gaming

Control Board (MGCB) began an investigation to determine whether illegal

gambling activities were taking place at the lounges. The MGCB interrupted this

investigation, however, when the Norton Shores Police Department began its own

independent investigation of allegations that unlawful gambling activities were

taking place at The Landing Strip. The city attorney for Norton Shores

subsequently filed in the Muskegon Circuit Court a civil-nuisance-abatement action

against The Landing Strip under the local zoning code. The parties ultimately

agreed to dismissal of that case, and the court entered a stipulated order of dismissal

on January 28, 2016, stating in part, “Defendants agree to operate the Landing Strip

LLC without violation of any applicable gambling laws or ordinances as it is

currently operating.” (Emphasis added.)

Following the conclusion of the civil lawsuit, the MGCB resumed its

investigation of the three lounges in February 2016. As a result of this

investigation, defendants were each charged with three counts of conducting a

gambling operation without a license, MCL 432.218(1)(a), and three counts of

using a computer to commit a crime, MCL 752.796 and MCL 752.797(3)(e). The

amended information alleges an offense period extending from February 1, 2016,

through October 31, 2016. The district court conducted a two-day preliminary

examination and, on January 27, 2017, issued an opinion and order determining

that probable cause supported the charges and binding over the cases to the Ingham

Circuit Court. In reaching this conclusion, the district court determined that the

offense of using a computer to commit a crime, MCL 752.796 and MCL

752.797(3)(e), is a specific-intent crime, while conducting a gambling operation

without a license, MCL 432.218(1)(a), constitutes a general intent crime. With

respect to the Muskegon County Circuit Court’s stipulated order of dismissal, the

district court was “not persuaded that the . . . [order], in a civil proceeding, is

particularly helpful here in relation to the probable cause standard.”

In the Ingham Circuit Court, defendants filed identical motions to quash,

arguing that the district court erred by determining that the offense of conducting a

gambling operation without a license was a general-intent crime as opposed to a

specific-intent crime. Defendants further asserted that because the stipulated order

dismissing the civil case reflected a judicial determination that defendants were

operating legally, defendants were acting under a mistake of law that negated the

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mens rea elements of both offenses. The circuit court granted defendants’ motions

to quash and stated on the record as follows:

My opinion is based upon the fact that the Attorney General

of this state, in part, has the authority to intervene in any litigation

that they want to that would be something that relates to state law, I

believe they could have gone back to the circuit judge in this case

and asked to intervene and have this reargued in some fashion as to

its applicability.

This appears to be a situation where apparently the Attorney

General’s office and their other agencies were so aggrieved by these

poor people that they felt it necessary to investigate for months and

months as to whether they existed. They could have walked right in

and seen. But in my opinion, when a circuit judge of—is it

Muskegon?

* * *

. . . [The Muskegon Circuit Court judge] has the right to

make these rulings and put these rulings in effect. But as I have seen

in my cases, I have been chastised. I have been appealed. I have

even had people come in here and consent to things and your office

appealed that because the consent was wrong. I am just amazed.

These cases are dismissed. [Zitka, 325 Mich App at 41-43 (footnote

omitted).]

On appeal, this Court held that the circuit court abused its discretion in determining that

the state’s criminal charges were barred by collateral estoppel. Id. at 47. This Court reasoned that

the two proceedings were not substantially similar and that the state Attorney General was not in

privity with the city attorney. Id. at 45-47. It also stated that the purposes of the two proceedings

were “fundamentally different,” which is a recognized basis for declining to apply collateral

estoppel. Id. at 47.

In its analysis of the relevant statutes, this Court stated that the language of MCL

432.218(1)(a) indicated that conducting an unlicensed gambling operation was a general-intent

crime, as opposed to a specific-intent crime. Id. at 50-51. This Court then held that defendants’

defenses of mistake of law and entrapment by estoppel were not applicable. Id. at 52. This Court

specifically held that defendants’ mistake-of-law argument had “no effect” on the charges of

conducting an unlicensed gambling operation because it was a general-intent crime. Id. In

particular, this Court concluded that “[d]efendants . . . need not have intended to violate the law

but rather simply have intended to perform the act of ‘conducting’ an unlicensed gambling

operation” and that “defendants’ alleged belief that they were operating their establishments in

compliance with the law is immaterial to a determination of whether they committed this offense.”

Id. This Court also held that defendants’ argument was “equally unavailing with respect to the

specific-intent charges brought under MCL 752.796 and MCL 752.797(3)(e).” Id. This Court

noted that entrapment by estoppel and mistake of law “both require that the alleged reliance on a

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public official’s representation be ‘reasonable’ or ‘justified,’ ” and that “[d]efendants are unable

to meet this requirement.” Id. at 52-53. Accordingly, this Court reversed the trial court’s dismissal

order and remanded for further proceedings. Id. at 53.

On remand, defendants moved to admit evidence of the Norton Shores investigation and

the results of that civil lawsuit. Defendants argued that this evidence was necessary to defend

against the charges, even though this Court had ruled that MCL 432.218(1)(a) was a general-intent

crime and that it was unnecessary to show that defendants intended to violate the law. The trial

court denied defendants’ motion, ruling that the evidence was not admissible in light of this Court’s

decision in Zitka. Following a joint jury trial, the jury found both defendants guilty of three counts

each of conducting an unlicensed gambling operation and three counts of using a computer to

commit a crime. Defendants now appeal.

I. ADMISSIBILITY OF THE CIVIL LITIGATION

Defendants argue that the trial court abused its discretion and violated their constitutional

right to present a defense by excluding evidence related to the previous civil lawsuit at their

criminal trial. In particular, they argue that the dismissal order in the civil lawsuit was admissible

to show that they believed they were acting in compliance with the law. We disagree.

“The decision whether to admit evidence is within a trial court’s discretion.” People v

Katt, 468 Mich 272, 278; 662 NW2d 12 (2003). “An abuse of discretion occurs when the trial

court chooses an outcome that falls outside the range of reasonable and principled outcomes.”

People v Johnson, 502 Mich 541, 564; 918 NW2d 676 (2018) (quotation marks and citation

omitted). “A trial court also necessarily abuses its discretion when it makes an error of law.”

People v Al-Shara, 311 Mich App 560, 566; 876 NW2d 826 (2015). “To the extent that the trial

court’s ruling involves an interpretation of the law or the application of a constitutional standard

to uncontested facts, our review is de novo.” People v Tanner, 496 Mich 199, 206; 853 NW2d

653 (2014) (quotation marks and citation omitted). Likewise, “[t]his Court reviews de novo

whether defendant suffered a deprivation of his constitutional right to present a defense.” People

v Steele, 283 Mich App 472, 480; 769 NW2d 256 (2009). Whether the law-of-the-case doctrine

applies is a question of law that we also review de novo. Ashker v Ford Motor Co, 245 Mich App

9, 13; 627 NW2d 1 (2001).

“A defendant has a constitutionally guaranteed right to present a defense, which includes

the right to call witnesses.” People v Yost, 278 Mich App 341, 379; 749 NW2d 753 (2008), lv den

483 Mich 856 (2009). “But this right is not absolute: the accused must still comply with

established rules of procedure and evidence designed to assure both fairness and reliability in the

ascertainment of guilt and innocence.” Id. (quotation marks and citations omitted); see also United

States v Scheffer, 523 US 303, 308; 118 S Ct 1261; 140 L Ed 2d 413 (1998) (“A defendant’s

interest in presenting such evidence may thus bow to accommodate other legitimate interests in

the criminal trial process.”) (quotation marks and citations omitted). For example, consistent with

our rules of evidence, “the 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). “Such rules do not abridge an accused’s right to present a defense so long

as they 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), quoting Scheffer, 523 US at 308.

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In considering defendants’ argument that the trial court’s exclusion of the challenged

evidence violated their right to present a defense, the threshold question is whether the

circumstances or outcome of the Norton Shores civil litigation was probative of any fact that was

of consequence to the determination of the criminal action. As a general rule, “relevant evidence

is admissible,” and “[e]vidence which is not relevant is not admissible.” MRE 402. “ ‘Relevant

evidence’ [has a] tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the evidence.”

MRE 401. “[A] material fact need not be an element of a crime or cause of action or defense but

it must, at least, be ‘in issue’ in the sense that it is within the range of litigated matters in

controversy.” People v Mills, 450 Mich 61, 68; 537 NW2d 909 (1995) (quotation marks and

citation omitted). This Court’s prior decision in Zitka establishes that the challenged evidence was

not relevant, and therefore, the trial court did not abuse its discretion by excluding the evidence.

A. RELEVANCY OF THE CIVIL LAWSUIT TO THE GAMBLING OPERATION CHARGE

This Court held in Zitka, 325 Mich App at 50-51, that conducting a gambling operation

without a license is a general-intent crime. “ ‘[U]nder the doctrine of the law of the case, if an

appellate court has passed on a legal question and remanded the case for further proceedings, the

legal question will not be differently determined in a subsequent appeal in the same case where

the facts remain materially the same.’ ” Ingham Co v Mich Co Rd Comm Self-Ins Pool, 329 Mich

App 295, 303; 942 NW2d 85 (2019), quoting Bennett v Bennett, 197 Mich App 497, 500; 496

NW2d 353 (1992). The binding nature of the doctrine typically “applies without regard to the

correctness of the prior determination.” People v Herrera (On Remand), 204 Mich App 333, 340;

514 NW2d 543 (1994) (quotation marks omitted). However, “[p]articularly in criminal cases, the

law of the case doctrine is not inflexible and need not be applied if it will create an injustice.”

People v Phillips (After Second Remand), 227 Mich App 28, 33; 575 NW2d 784 (1997). An

“injustice” may occur when there has been an intervening change in the law, see People v Spinks,

206 Mich App 488, 496-497; 522 NW2d 875 (1994), or “where the prior opinion was clearly

erroneous,” Phillips, 227 Mich App at 34, citing People v Wells, 103 Mich App 455, 463; 303

NW2d 226 (1981).

Accordingly, this Court explained that a mistake-of-law defense was not available to the

charge of conducting a gambling operation without a license because the offense is a general-intent

crime. Id. at 51-52. This Court stated:

Defendants therefore need not have intended to violate the law but rather simply

have intended to perform the act of “conducting” an unlicensed gambling operation.

See People v Beaudin, 417 Mich 570, 573-574, 339 NW2d 461 (1983).

Accordingly, defendants’ alleged belief that they were operating their

establishments in compliance with the law is immaterial to a determination of

whether they committed this offense. [Zitka, 325 Mich App at 52 (emphasis

added).]

In addition, when discussing the additional charges of using a computer to commit a crime, this

Court held that defendants could not rely on the statement by the Norton Shores city attorney in

the civil suit to defend their state criminal charges, stating:

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Entrapment by estoppel and mistake-of-law defenses both require that the alleged

reliance on a public official’s representation be “reasonable” or “justified.”

Defendants are unable to meet this requirement. They claim reliance on the Norton

Shores city attorney’s agreement in the stipulated order that operations at The

Landing Strip were in compliance with applicable gambling laws and ordinances.

It cannot be said that a statement by a city attorney in a civil suit involving a local

ordinance could be authoritative on a matter of criminal state law such that reliance

on it was reasonable. The statement was not made by the attorney general’s office,

by the MGCB, or by a county prosecutor. [Id. at 53.]

This Court’s analysis in Zitka demonstrates that the trial court did not abuse its discretion

by not allowing defendants to present evidence of the Norton Shores civil litigation at their

criminal trial. We are bound by the earlier decision in Zitka under both the law-of-the-case

doctrine and because this Court’s prior decision is published. See MCR 7.215(C)(2) (“A published

opinion of the Court of Appeals has precedential effect under the rule of stare decisis.”).

Defendants wanted to introduce the evidence of the civil dismissal order because it

contained the parties’ stipulation that “[d]efendants agree to operate the Landing Strip LLC

without violation of any applicable gambling laws or ordinances as it is currently operating.”

Defendants maintain that this evidence was relevant to show that they believed they were operating

their businesses in compliance with the law. Even if defendants held this belief, however, this

Court’s decision in Zitka establishes that defendants’ alleged belief that they were operating their

establishments in compliance with the law is immaterial to whether they were “conducting” an

unlicensed gambling operation. Zitka, 325 Mich App at 52. Defendants argue that this Court’s

prior decision did not totally foreclose this evidence for all purposes, and that a relevant issue in

this case was whether they “intended to perform the act of ‘conducting’ an unlicensed gambling

operation.” They maintain that the stipulated civil order was relevant to that issue because it

indicated that they did not intend to conduct “an unlicensed gambling operation.” However, this

Court’s discussion in Zitka of the mens rea required for conducting an unlicensed gambling

operation emphasized that the focus of this inquiry is whether defendants intended to “operate”

what amounts to a gambling operation. This Court made it clear that its holding rested on the

volitional character of the word “conducting,” not on the intent to cause the outcome that their

“conduct” set in motion. See Zitka, 325 Mich App at 50 (“[T]he statute’s use of the term

‘conducting’ evidences an intention that the mens rea element of MCL 432.218(1)(a) be the intent

to perform the act of ‘conducting.’ ”).

Defendants are essentially taking the position that the prosecutor needed to prove that they

specifically intended to operate an illegal gambling operation, or to prove that they were operating

a gambling operation knowing that it was illegal. This position is not supported by this Court’s

decision in Zitka, in which this Court held that the prosecutor was only required to prove that the

manner in which defendants intended to operate their cafés constituted a gambling operation within

the meaning of the statute. MCL 432.218(1)(a) provides that a person is guilty of a felony for

“[c]onducting a gambling operation where wagering is used or to be used without a license issued

by the board.” “Board” is defined as the “Michigan gaming control board.” MCL 432.202(f).

“Gambling operation” or “casino gambling operation” refers to “the conduct of authorized

gambling games in a casino.” MCL 432.202(w). MCL 432.202(v), defines the term “gambling

game” as:

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any game played with cards, dice, equipment or a machine, including any

mechanical, electromechanical or electronic device which shall include computers

and cashless wagering systems, for money, credit, or any representative of value,

including, but not limited to, faro, monte, roulette, keno, bingo, fan tan, twenty one,

blackjack, seven and a half, klondike, craps, poker, chuck a luck, Chinese chuck a

luck (dai shu), wheel of fortune, chemin de fer, baccarat, pai gow, beat the banker,

panguingui, slot machine, any banking or percentage game, or any other game or

device approved by the board, but does not include games played with cards in

private homes or residences in which no person makes money for operating the

game, except as a player. [Emphasis added.]

Therefore, while evidence concerning whether defendants’ operation met the statutory

requirements for a gambling operation involving “gambling games” was relevant, evidence of

whether defendants specifically intended their operation to be an unlicensed gambling operation

or specifically intended to violate MCL 432.218(1)(a) was not relevant. Accordingly, the trial

court did not abuse its discretion by excluding this evidence. Further, because the evidence was

not relevant, the trial court’s exclusion of this evidence did not violate defendants’ right to present

a defense.

Zitka also argues that this evidence should have been allowed after the prosecution

introduced evidence that defendants knew that their businesses were operating illegally, such as

cease and desist letters defendants saw in connection with other investigations. The record

discloses that the prosecutor cross-examined defendants about their knowledge in response to

defendants’ claims that they did not know that what they were doing was illegal. Arguably, the

trial court could have prevented defendants from introducing their lack of knowledge of the legality

of their operations because their subjective beliefs were not relevant. However, because the trial

court allowed defendants to introduce limited testimony about their knowledge, the prosecutor did

not act improperly by cross-examining them on that subject to challenge the credibility of their

testimony. Thus, we reject Zitka’s claim that defendants should have been allowed to introduce

additional irrelevant evidence in rebuttal.

B. RELEVANCY OF THE EVIDENCE TO THE UNLAWFUL USE OF A COMPUTER

CHARGES

With respect to the crime of using a computer to commit a crime, MCL 752.796 provides:

(1) A person shall not use a computer program, computer, computer system,

or computer network to commit, attempt to commit, conspire to commit, or solicit

another person to commit a crime.

(2) This section does not prohibit a person from being charged with,

convicted of, or punished for any other violation of law committed by that person

while violating or attempting to violate this section, including the underlying

offense.

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(3) This section applies regardless of whether the person is convicted of

committing, attempting to commit, conspiring to commit, or soliciting another

person to commit the underlying offense.

In the prior appeal, this Court characterized the offense of using a computer to commit a

crime as a specific-intent crime. See Zitka, 325 Mich App at 52. However, this Court did not

explain what specific intent is necessary for a conviction under MCL 752.796. The language of

MCL 752.796 prohibits the use of a computer to “commit a crime.” The alleged crime in this case

was “[c]onducting a gambling operation in which wagering is used or to be used without a license

issued by the board.” MCL 432.218(1)(a). “[I]n order to commit a specific intent crime, an

offender must subjectively desire or know that the prohibited result will occur, whereas in a

general-intent crime, the prohibited result need only be reasonably expected to follow from the

offender’s voluntary act, irrespective of any subjective desire to have accomplished such result.”

Gould, 225 Mich App at 85, quoting Lerma, 66 Mich App at 569-570 (emphasis added). Thus, as

applied to this case, to obtain a conviction under MCL 752.796, the prosecutor was required to

prove that defendants specifically intended to “use[] a computer program, computer system, or

computer network to commit, attempt to commit, conspire to commit, or solicit another person to

commit” the general-intent crime of “[c]onducting a gambling operation in which wagering is used

or to be used without a license issued by the board.” The specific intent necessary to commit this

offense is the intent to use a computer to conduct a gambling operation without a license, which

constitutes a crime. Contrary to what defendants suggest, the prosecutor was not required to prove

that they used the computer with the specific intent or knowledge that the gambling operation they

were conducting was illegal. This would effectively convert the underlying offense into a specific-

intent crime, contrary to this Court’s decision in Zitka. Accordingly, the Norton Shores

investigation and the settlement in that civil lawsuit would be no more relevant to determining

defendants’ guilt or innocence for the crime of unlawful use of a computer than for the underlying

crime of conducting the gambling operation. Therefore, the trial court did not err when it precluded

defendants from introducing evidence of the civil lawsuit to show that defendants lacked the

specific intent necessary to support a conviction of using a computer to commit a crime.

C. INEFFECTIVE ASSISTANCE

Zitka also argues that defense counsel was ineffective for failing to seek introduction of

the evidence of the order in the civil case to rebut the prosecution’s repeated introduction of

evidence that defendants knew what they were doing was illegal. To establish ineffective

assistance of counsel, a defendant must show that: (1) counsel’s representation “fell below an

objective standard of reasonableness”; and (2) but for counsel’s deficient performance, there is a

reasonable probability that the outcome of the proceeding would have been different. People v

Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012), citing Strickland v Washington, 466 US 668,

688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 US at 694. The defendant

must “overcome the strong presumption that counsel’s performance was born from a sound trial

strategy.” People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012).

This Court had already determined that evidence of the Norton Shores litigation was

“immaterial to a determination of whether [defendants] committed [the offense of conducting an

unlicensed gambling operation.]” Zitka, 325 Mich App at 52. Despite this ruling, defense counsel

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endeavored to obtain a ruling allowing the evidence, but the trial court ruled that the evidence was

not admissible. Given this Court’s prior decision in Zitka and the trial court’s subsequent ruling

disallowing the evidence, Zitka cannot show that counsel’s decision to refrain from again moving

to admit this evidence was objectively unreasonable. “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).

II. CHARACTER WITNESSES

Hernandez-Zitka argues that the trial court abused its discretion by granting the

prosecution’s motion to preclude her from offering character witnesses to testify regarding her

character and reputation for being a law-abiding citizen. We disagree.

MRE 404(a)(1) permits the accused to introduce evidence of a “pertinent” character trait,

and a pertinent trait must relate to the charged crime. Accordingly, a defendant has a “right to

introduce evidence of his character to prove that he could not have committed the crime.” People

v Whitfield, 425 Mich 116, 130; 388 NW2d 206 (1986); see also People v Roper, 286 Mich App

77, 93; 777 NW2d 483 (2009) (“Under MRE 404(a)(1) a defendant may offer evidence that he or

she has a character trait that makes it less likely that he or she committed the charged offense.”).

One example of a pertinent trait would be a defendant’s character for peacefulness in a crime

involving alleged violent conduct. Id. at 93-96. As another example, our Supreme Court has held

that evidence of “the truthfulness of a person” is admissible “in an action for defamation of the

person’s allegedly ‘untruthful’ character.” People v Harris, 458 Mich 310, 318; 583 NW2d 680

(1998).

Hernandez-Zitka fails to explain how her truthful character would have made her less likely

to have committed the offense of conducting an unlicensed gambling operation. Her truthfulness

or general reputation for adhering to the law has no bearing on whether she intended to operate the

cafés in a manner that met the definition of a gambling operation, particularly where this Court

had already determined that defendants’ intent to “break the law” was not relevant to the illegal

gambling charges. Because Hernandez-Zitka sought to introduce this evidence only to make an

irrelevant point, the trial court did not err by excluding the evidence.

II. RES JUDICATA AND ENTRAPMENT BY ESTOPPEL

Hernandez-Zitka also argues that res judicata and entrapment by estoppel are valid

defenses to her convictions in this case. She recognizes that this Court previously ruled that

entrapment by estoppel did not apply, but claims that the prior decision was made without all

necessary facts. We review de novo whether res judicata bars a subsequent action. Adair v

Michigan, 470 Mich 105, 119; 680 NW2d 386 (2004). Whether entrapment by estoppel applies

is a question of law that we review de novo. People v Fyda, 288 Mich App 446, 456; 793 NW2d

712 (2010).

Although the doctrines of res judicata and collateral estoppel are distinguishable, they share

the common element of privity. In Zitka, 325 Mich App at 44, this Court discussed the doctrine

of collateral estoppel as follows:

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The doctrine of collateral estoppel generally precludes relitigation of an

issue in a subsequent proceeding when that issue has previously been the subject of

a final judgment in an earlier proceeding. Porter v Royal Oak, 214 Mich App 478,

485; 542 NW2d 905 (1995). Collateral estoppel applies when the following three

conditions are satisfied: “(1) a question of fact essential to the judgment must have

been actually litigated and determined by a valid and final judgment; (2) the same

parties must have had a full [and fair] opportunity to litigate the issue; and (3) there

must be mutuality of estoppel.” Monat v State Farm Ins Co, 469 Mich 679, 682-

684; 677 NW2d 843 (2004) (quotation marks and citations omitted; alteration in

original). Mutuality of estoppel requires that the party seeking to invoke the

doctrine establish that his or her adversary was either a party to, or in privy with a

party to, the previous action. Id. at 684.

In contrast, res judicata operates to bar a second action when “(1) the first action was decided on

the merits, (2) the matter contested in the second action was or could have been resolved in the

first, and (3) both actions involve the same parties or their privies.” Dart v Dart, 460 Mich 573,

586; 597 NW2d 82 (1999). Res judicata is broadly applied in Michigan, barring not only claims

already litigated, but also every claim arising from the same transaction that could have been

brought by exercising reasonable diligence. Id. The burden of establishing res judicata is upon

the party asserting that doctrine. Baraga Co v State Tax Comm, 466 Mich 264, 269; 645 NW2d

13 (2002). Under either doctrine, the proponent must demonstrate the existence of privity in

connection with the earlier action. Id.; Monat, 469 Mich at 684.

In the context of collateral estoppel, this Court determined in the prior appeal that the

prosecutor in this case and the Norton Shores city attorney in the civil case were not in privity,

despite the Attorney General’s ability to intervene in the civil case under MCL 14.28 and MCL

14.101. Thus, for the purpose of deciding whether res judicata could apply to this case, we are

bound by our previous determination. Accordingly, Hernandez-Zitka cannot show that res judicata

barred her convictions in this case.

Hernandez-Zitka also argues that this Court erroneously decided that entrapment by

estoppel was not available as a defense in her criminal case. Again, we are bound to follow this

Court’s decision in Zitka, 325 Mich App at 51-53, rejecting the availability of entrapment by

estoppel in this case. The only new argument offered by Hernandez-Zitka is that the circuit court’s

approval of the earlier settlement should have allowed her to rely on the legality of her prior

actions. However, she does not discuss how the circuit court’s decision to permit the Norton

Shores settlement was a binding determination regarding whether defendants’ operation of the

Landing Strip was a violation of MCL 432.218(1)(a), much less a decision concerning other

businesses not involved in the lawsuit. Accordingly, Hernandez-Zitka’s claim that she is entitled

to relief under the doctrine of entrapment by estoppel is not persuasive.

III. OPINION TESTIMONY

Hernandez-Zitka also argues that the trial court erred when it allowed prosecution

witnesses to provide opinion testimony regarding whether illegal gambling was being conducted

at defendants’ establishments. We review the trial court’s decisions regarding the admission of

evidence for an abuse of discretion. Katt, 468 Mich at 278.

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MRE 701 permits the admission of lay opinion testimony and provides:

If the witness is not testifying as an expert, the witness’ testimony in the

form of opinions or inferences is limited to those opinions or inferences which are

(a) rationally based on the perception of the witness and (b) helpful to a clear

understanding of the witness’ testimony or the determination of a fact in issue.

MRE 702 permits the admission of expert testimony and provides:

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.”

Nevertheless, there are limits on an expert’s opinion testimony. An expert witness may not

“express[ ] an opinion regarding the defendant’s guilt or whether the defendant had a culpable

state of mind,” People v McFarlane, 325 Mich App 507, 523; 926 NW2d 339 (2018), or “testify

about the requirements of law which apply to the particular facts in the case or to phrase his opinion

in terms of a legal conclusion,” People v Drossart, 99 Mich App 66, 75; 297 NW2d 863 (1980).

Hernandez-Zitka challenges the testimony of two witnesses who testified that defendants’

cafés were illegal gambling operations. Mark Laberge, a regulations officer with the MGCB, was

asked to explain, in his words, what an Internet café was. He replied, “An illegal casino.” After

defense counsel objected, the trial court struck the term “illegal” from his response.2 Later, after

Laberge discussed his visit to Fast Lane, how he was given a café user account and access to the

sweepstopia.com website, and how he was able to obtain cash from the café when he won games

on the website, he was asked what he looked for to determine whether gambling was occurring.

Laberge replied, “Was there consideration, was there chance, and was there a prize.” He then

testified that he found all of these elements in this case. When defense counsel objected, the trial

court stated that counsel would be able to cross-examine Laberge about this opinion.

Laberge’s initial response that Internet cafés are illegal casinos was improperly phrased in

terms of a legal conclusion. However, the trial court adequately cured this error by quickly striking

the objectionable portion of his response. Defense counsel assented to this remedy. Thus,

Hernandez-Zitka cannot now claim that this remedy was insufficient. See People v Buie, 491 Mich

294, 312; 817 NW2d 33 (2012) (explaining that a defendant should raise objections at a time when

the trial court can correct them and is not permitted to “harbor error as an appellate parachute”)

(quotation marks and citations omitted). With respect to the later testimony, Laberge’s statement

2

The trial court later instructed the jury not to consider any testimony that was excluded or

stricken.

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that the Fast Lane operation shared the characteristics of consideration, a game of chance, and a

prize with other gambling establishments was not an improper comment on the ultimate question

of Hernandez-Zitka’s guilt. While this testimony supported a finding that defendants’ cafés were

gambling operations, this question was left to the jury to determine. As with the first comment,

defense counsel was also permitted to cross-examine the witness regarding the bases for his

conclusions that the characteristics of a gambling operation existed. Therefore, Hernandez-Zitka

is not entitled to relief.

Hernandez-Zitka also argues that the prosecutor improperly elicited similar testimony from

John Lessnau, the manager of the criminal investigation section for the MGCB. Lessnau was

qualified as an expert witness in the field of illegal gambling. After discussing the same three

elements of consideration, chance, and a prize, Lessnau also discussed Sweepstopia.com, stating

that it did not have a gambling license. He then testified about his investigation into the Internet

sites accessed by the customers at defendants’ cafés, and stated that roughly 80 percent of the

traffic went to Sweepstopia.com. Over defense counsel’s objection, Lessnau was then asked about

his opinion of Sweepstopia.com, and he testified that the website was operating illegally. This

was not improper expert testimony because Lessnau testified about his opinion concerning the

website, not defendants’ cafés. This answer could have led the jury to find that because a majority

of defendants’ customers visited this website, the cafés were also conducting illegal gambling

operations. However, Lessnau did not provide this legal conclusion about defendants’ cafés or

their guilt.

After explaining sweepstakes and how they differ from a lottery, and that Michigan does

not have an exception for “internet sweepstakes café” operations from the general ban on

unlicensed gambling, Lessnau was asked his opinion about defendants’ operations.

Q. Okay. Having been to both–to all three locations here, were

they internet sweepstakes cafés, in your opinion?

A. They were illegal gambling operations.

Defense counsel immediately objected, stating, “Your Honor, if the court could clarify that

the jury is going to make the ultimate decision. That this is one witness’ (sic) opinion, if the court

would clarify that for the jury.” The trial court replied that it had already so instructed the jury

twice and that the jury would receive further instructions about its duty to determine the weight

and credibility of all of the evidence. The trial court later provided such an instruction.

As with Laberge’s testimony, the remedy that defense counsel sought was sufficient to cure

any prejudice. See Buie, 491 Mich at 312. The court’s instructions made it clear to the jury that

it would ultimately decide whether defendants’ businesses were illegal gambling operations.

“Jurors are presumed to follow their instructions,” and jury instructions are presumed to “cure

most errors.” People v Mahone, 294 Mich App 208, 212; 816 NW2d 436 (2011).

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Affirmed.

/s/ Jane E. Markey

/s/ Patrick M. Meter

/s/ Michael F. Gadola

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