STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 26, 2018
Plaintiff-Appellee,
v No. 334072
Macomb Circuit Court
WILLIE RICHARDSON RODGERS JR., LC No. 2015-004189-FC
Defendant-Appellant.
Before: BORRELLO, P.J., and SHAPIRO and TUKEL, JJ.
PER CURIAM.
Defendant appeals by right from his convictions of three counts of first-degree criminal
sexual conduct (person under 13, defendant over 17), MCL 750.520b(2)(b). Defendant was
sentenced to 800 months for each conviction, with counts two and three to run consecutively.
For the reasons discussed below, we affirm defendant’s convictions, but remand for
resentencing.
I. BACKGROUND
The complainant, NB, alleged that when she was five years old, she was sexually
assaulted by defendant, who was in a dating relationship with her mother, Neveah Bethea. NB,
six years old at the time of trial, testified that she was sexually assaulted by defendant on two
occasions. She stated that the first incident occurred when she had gone into Bethea’s room to
ask for something to eat. She testified that when she entered the bedroom, defendant was laying
on the bed naked in a manner that revealed his private parts. She reported that when she turned
around to leave the room, defendant closed the door and blocked it with a large object.
According to her testimony, defendant told her to pull her pants down, and when she asked him
“why?” he did not respond but instead pulled her pants down, and penetrated her with his penis.
NB testified that she began to cry because of the pain, and that there was blood on her vagina.
She testified that after the sexual assault, she left the room to take a shower because she “was
bleeding.” NB testified that on another occasion, while she was in her room taking a nap,
defendant entered the room with a “blue thing,” which by her description appears to be a dildo,
which he first inserted into her vagina and then inside her buttocks. She testified that the dildo
felt bad to her body, that she was bleeding from her vagina, and that afterwards, she took a
shower.
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NB’s father is Joseph Quinn. NB stayed with him and his girlfriend, Dana Johnson,
during court-scheduled parenting time. Johnson testified that during a parenting time visit, NB
told her about the assaults. She testified that one day, she perceived a foul odor after NB used
the restroom and asked NB if she was “feeling okay, was there something wrong, what had she
done in the bathroom?” In response, NB told her that it was a secret. Johnson stated that during
a 10-minute conversation, NB told her about the incidents of sexual assault perpetrated against
her by defendant. Johnson stated that she asked NB “a couple questions” during the
conversation. Johnson narrated the contents of the entire conversation including descriptions of
the two incidents for which defendant was charged. Defendant objected to the testimony but the
trial court allowed it under MRE 803A.
The prosecution also presented testimony from two other witnesses who described out-
of-court statements by NB. Defendant objected to such testimony from Dr. DeGraw, the
physician who conducted the gynecological examination and who recounted statements from
both NB and her father. Similar testimony was received from Heather Solomon, the forensic
examiner who interviewed NB, but there was no objection.
Defendant testified and denied sexually assaulting NB. In addition to his denial, the
defense offered evidence that defendant was recovering from foot surgery when he was living
with NB and her mother. He claimed that as a result of the surgery, he was limited in ambulation
and lower body movement such that he was physically incapable of the crime. He also presented
several character witnesses.
Defendant was convicted and sentenced on all charges and now appeals.
II. HEARSAY CHALLENGES
Defendant argues that the trial court improperly admitted hearsay testimony in which
Johnson, Solomon, and Dr. DeGraw described or recounted out-of-court statements made by NB.
We reject defendant’s argument as to Johnson’s testimony, but agree that the NB’s statements
recounted by Solomon and DeGraw were inadmissible hearsay.
A. JOHNSON’S TESTIMONY
Defendant argues that the trial court abused its discretion by admitting Johnson’s
testimony recounting NB’s statements. The trial court admitted this testimony over objection
finding that it fell within the hearsay exception defined in MRE 803A. We agree with the trial
court and so reject this claim of error.1
1
“A trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion.”
People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). “A trial court abuses its discretion
when its decision falls outside the range of principled outcomes.” People v Feezel, 486 Mich
184, 192; 783 NW2d 67 (2010) (quotation marks and citation omitted). “Preliminary questions
of law, including whether a rule of evidence or statute precludes admissibility of the evidence,
are reviewed de novo.” Burns, 494 Mich at 110.
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Under the Michigan Rules of Evidence, hearsay “is a statement, other than the one made
by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.” MRE 801(c). Hearsay statements are generally inadmissible unless an
exception applies. MRE 802. One such exception is MRE 803A, which provides in relevant
part as follows:
A statement describing an incident that included a sexual act performed
with or on the declarant by the defendant . . . is admissible to the extent that it
corroborates testimony given by the declarant during the same proceeding,
provided:
(1) the declarant was under the age of ten when the statement was made;
(2) the statement is shown to have been spontaneous and without
indication of manufacture;
(3) either the declarant made the statement immediately after the incident
or any delay is excusable as having been caused by fear or other equally effective
circumstance; and
(4) the statement is introduced through the testimony of someone other
than the declarant.
Defendant does not dispute that elements 1 and 4 are met. He contends, however, that NB’s
statements to Johnson were not spontaneous, that they were not made immediately after the
incident, and that the delay was not excusable.
We disagree with defendant’s argument that NB’s statements to Johnson were not
spontaneous. For a victim’s statement to be spontaneous, “MRE 803A generally requires the
declarant-victim to initiate the subject of sexual abuse.” People v Gursky, 486 Mich 596, 613;
786 NW2d 579 (2010) (emphasis in original). “[T]he mere fact that questioning occurred is not
incompatible with a ruling that the child produced a spontaneous statement.” Id. at 614.
Although the evidence established that there was questioning by Johnson before NB disclosed
the abuse, this did not render the statement unspontaneous. In Gursky, 486 Mich at 614-615, the
Michigan Supreme stated that “[w]hen questioning is involved, the trial court must look
specifically as the questions posed in order to determine whether the questioning shaped,
prompted, suggested, or otherwise implied the answers.” Accordingly, “[t]his approach requires
that trial courts review the totality of the circumstances surrounding the statement in order to
determine the issue of spontaneity.” Id. at 615.
After reviewing the records, we conclude that NB’s statements were spontaneous because
the statements were not prompted by a “question specifically concerning sexual abuse.” Id. at
618. During trial, Johnson testified that on July 14, 2015, she detected a foul odor after NB used
the restroom. Thereafter, while combing NB’s hair, Johnson questioned NB about the odor.”
Specifically, she asked NB if she was “feeling okay, was there something wrong, what had she
done in the bathroom?” At that point, NB told her that it was a secret. Johnson then narrated to
the jury what NB told her about the secret, i.e., the sexual assault perpetrated on her by
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defendant. Considering the totality of the evidence, there is no showing that the statements were
specifically prompted by Johnson’s questions concerning sexual abuse.
Defendant also argues that the statements were inadmissible because they were not made
immediately after the incident and there was no excuse for the delay. MRE 803A(3) provides
that the statement would be admissible where “either the declarant made the statement
immediately after the incident or any delay is excusable as having been caused by fear or other
equally effective circumstance.” NB disclosed the abuse to Johnson on July 14, 2015.
Therefore, there was a delay of at least several weeks and perhaps as much as three months.
MRE 803A(3) excuses a delay in making the statement where the delay is caused by fear
or other “equally effective circumstance.” (Emphasis added). NB’s testified that defendant told
her that the sexual abuse was a “secret,” and that she should not tell anyone about it. Given her
young age, we conclude that this was sufficient to constitute an “equally effective circumstance”
justifying the delay. This Court has upheld admission of statements under MRE 803A where the
delay has been longer than in this case. E.g., People v Dunham, 220 Mich App 268, 272; 559
NW2d 360 (1996) (holding that the trial court did not abuse its discretion in admitting the
victim’s statements made after an eight—or nine-month delay based on her “well-grounded fear”
of the defendant).
Because the statements described by Johnson were spontaneous and the delay was
justified, the testimony was admissible under MRE 803A.
B. SOLOMON’S TESTIMONY
After NB disclosed the sexual assault, Quinn and Johnson took NB for a forensic
interview at Care House. The interview was conducted by Heather Solomon, a trained forensic
interviewer. Solomon testified that after questioning NB about the difference between the truth
and a lie, she was satisfied that NB understood the difference. Solomon stated that NB was
“very forthcoming and gave specific details,” when she utilized open-ended questions. During
the interview, NB would talk about one assault, then move to talking about a second or different
assault, before returning to the first assault; nevertheless, Solomon stated that NB’s details about
the first assault was consistent when she revisited it. She stated that after questioning NB, she
concluded that the interview was “[c]onsistent with the allegations” against defendant.
Hearsay “is a statement, other than the one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).
While Solomon’s testimony did not recount the particular words used by NB, she did recount the
substance of NB’s statements, by stating that those statements were “consistent with the
allegations.” MRE 801 (a) does not define “statement” as the words used by someone out of
court. Rather, “statement” is defined as “an oral or written assertion.” Solomon’s testimony
made clear that during the interview, NB “asserted” that the defendant had sexually assaulted
her. Moreover, Solomon significantly bolstered the credibility of that hearsay assertion by
stating that she has interviewed hundreds of children and that she employs certain interviewing
techniques “because we want to obtain the truth of what may or may not have occurred.”
Accordingly, the testimony was inadmissible.
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The Supreme Court addressed this issue in People v. Douglas, 496 Mich 557; 852 NW2d
587 (2014). There, the defendant was charged with CSC against a child and a forensic
interviewer testified at trial about the content of the child’s statements, described the mechanisms
of forensic interviewing, and stated her belief that the child’s report was accurate. Douglas, 496
Mich at 569. A videotape of the interview was shown to the jury. Id. at 571. The Court rejected
the prosecution’s argument that such testimony was admissible under MRE 803A or MRE
803(24), and concluded that the error was not harmless. Id. at 575-583. In this case, which was
tried after Douglas was decided, the prosecution did not ask the interviewer to describe the
details of the child’s statements about the assault or to offer a direct opinion that the child was
truthful and credible. However, as already noted, the critical aspect of the child’s statements
during the interview was her assertion that defendant had sexually abused her, i.e. that her
statements were “consistent with the allegations.” Further, Solomon’s detailed description of the
methods she uses to “obtain the truth” constitutes expert assurances of the child’s truthfulness
and credibility.
C. TESTIMONY OF DR. DEGRAW
Child pediatrician Dr. Marcus DeGraw conducted a physical examination of NB. He
testified that he asked Quinn the reason for the visit, and Quinn informed him that NB had been
physically and sexually abused. He also testified that during the physical examination, NB told
him that she had been sexually abused, including by penetration with a penis. The trial court
overruled defendant’s hearsay objection concluding that the testimony fell within MRE 803(4)
which defines a hearsay exception for
[s]tatements made for purposes of medical treatment or medical diagnosis
in connection with treatment and describing medical history, or past or present
symptoms, pains, or sensations, or the inception or general character of the cause
or external source thereof insofar as reasonably necessary to such diagnosis and
treatment.
Admission of these statements was error because the examination was not conducted for
diagnosis or treatment but rather for investigative purposes. In People v Shaw, 315 Mich App
668, 674-676; 892 NW2d 15 (2016), we considered this issue and held such testimony outside
the exception because the complainant had not sought out the examining physician for treatment,
but rather on direction of someone involved in investigating the alleged sexual assaults. We
noted in that case that the complainant had been referred to the specific physician for a forensic
examination, had never previously seen this doctor, and that the alleged assaults had occurred far
in the past that a need for treatment was very unlikely. Id. In this case, the examination occurred
a few months after the alleged assaults, and NB had not complained of any injuries.
Nevertheless, the lapse in time was much shorter here than in Shaw, and we do not consider the
delay as a significant factor against admission. However, it is clear from the record that NB was
seeing Dr. DeGraw on referral from the forensic interviewer, that NB had not complained of any
injuries, and that no physician contact had been initiated by NB’s father, Johnson or any other
caregiver. Dr. DeGraw testified that he saw NB in a “consult specific to abuse” rather than
during his general practice. He also testified that he was called by an “investigative agency,”
given information about the alleged assaults, and asked to conduct an examination. Solomon
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agreed that she had given the doctor’s name to Quinn and encouraged him to obtain an
examination.
D. DOES THE ADMISSION OF THE HEARSAY REQUIRE REVERSAL
Dr. DeGraw’s testimony concerning the out-of-court statements of NB and Quinn,
though wrongly admitted, was of only minimal consequence. He did not go into any details
about statements made to him about when, where, or how the abuse had occurred, and testified
that he did not ask for the name of the alleged abuser and never learned it. The import of his
testimony was really his description of his findings on physical examination. Given the far more
detailed descriptions testified to by Johnson, and in NB’s own testimony, we conclude that Dr.
DeGraw’s brief reference to his understanding of the reason for the examination was harmless
error.
The testimony of Solomon is more troubling. Although she did not offer NB’s
descriptions of the assault, she clearly testified that she uses specialized methods to get to the
truth, and that using those methods, NB told her what had occurred and that her statements were
“consistent with the allegations” in this case; namely, that defendant had sexually assaulted NB.
However, as noted, there was no objection to this testimony. Accordingly, we review it on a
plain error standard. “Under the plain error rule, defendants must show that (1) error occurred,
(2) the error was plain, i.e., clear or obvious, and (3) the plain error affected a substantial right of
the defendant. Generally, the third factor requires a showing of prejudice—that the error
affected the outcome of the trial proceedings.” People v. Pipes, 475 Mich 267, 279; 715 NW2d
290 (2006).
Although we find error, we do not conclude that the error was “clear or obvious.” The
objectionable hearsay came in a single sentence at the end of Solomon’s testimony. And the
question was formulated in a manner seemingly intended to approach, but not cross the line
defined in Shaw. Though that line was crossed, the error was subtle and absent an objection, we
cannot fault the trial court for not acting sua sponte. Moreover, after a review of the entire
record, we conclude that the error was not likely to have affected the outcome. First, Johnson’s
testimony about the initial disclosure was more significant and descriptive. Second, NB and
defendant each testified, and so the jury was able to make their own determinations as to their
respective credibility. Third, defense counsel’s attempts to impeach NB with her preliminary
examination testimony were unsuccessful. While small inconsistencies were shown, the attempt
at impeachment ultimately demonstrated that NB’s preliminary examination testimony was
essentially consistent with her trial testimony. And while we are limited to a printed transcript,
NB’s testimony appears to have been credible and consistent during both direct and cross
examinations. Fourth, defendant’s claim that he would have been physically incapable of the
charged actions was undercut by the testimony of his own physician. Given all this evidence, we
cannot conclude that the improper admission of Solomon’s testimony likely affected the outcome
of the trial.
Accordingly, we conclude that the improper admission of the statements reported by
Solomon and Dr. DeGraw do not rise to the level of reversible error given the relevant standards
of review.
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III. SUFFICIENCY OF THE EVIDENCE
Defendant argues that there was insufficient evidence to convict him of the offenses. 2
This argument requires little discussion. We evaluate a sufficiency of the evidence claim by
asking whether “the evidence, viewed in a light most favorable to the [prosecution], would
warrant a reasonable juror in finding guilt beyond a reasonable doubt.” People v Nowack, 462
Mich 392, 399; 614 NW2d 78 (2000).
NB’s testimony was sufficient to prove beyond a reasonable doubt that defendant
committed the charged offenses. Defendant characterizes NB’s testimony as “inconsistent,
unreliable, and inherently incredible testimony of a six-year-old girl who did not understand the
meaning of truth or the implications of what she was saying.” We disagree. The trial court
questioned NB about the difference between the truth and a lie, and determined that she
understood the difference, a finding not challenged on appeal or inconsistent with the record.
Defendant’s sufficiency argument is really a credibility challenge. However, when there is
conflicting testimony, the question of witness credibility should be left for the trier of fact.
People v Lemmon, 456 Mich 625, 642-643; 576 NW2d 129 (1998). There was also testimony
from a doctor that the physical examination of NB revealed anatomical changes consistent with
penetration. There was sufficient evidence to convict.
IV. OTHER EVIDENTIARY RULINGS
Defendant raises several challenges to the trial court’s evidentiary rulings during trial, all
of which we reject.
A. IN-CAMERA REVIEW OF CHILD PROTECTIVE SERVICES (CPS) RECORDS
Before trial, defendant filed a motion for discovery seeking among other things,
“[p]ermission to review current Friend of the Court file in Macomb County.” With regard to that
record, defense counsel argued during a pretrial proceeding that “there is some CPS development
that I’m led to believe [that] started to occur early in the process between this mother and this
father, not my client, but the father of [NB], that may have some effect on how this child
becomes aware of certain things during the course of time.” Additionally, defense counsel also
alleged that he “found out that during the early part of this [case], there is another allegation of
[Terry Wilson] who’s living with this mother having had some inappropriate contact with this
child as well.” The prosecutor argued that the only persons allowed to review the records were
the perpetrators. The trial court denied defendant’s request stating that it does not have the
“authority under the circumstances, unless you’re aware of something outside the statute that
2
This Court reviews de novo a defendant’s challenge to the sufficiency of the evidence
supporting his or her conviction following a jury trial. People v Meissner, 294 Mich App 438,
452; 812 NW2d 37 (2011).
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gives me that authority. Absent authority, I can’t review it.” 3 As an alternative relief, the trial
court directed that the defense be provided the full police reports concerning the allegations
against Wilson.
“Criminal defendants do not have general rights to discovery.” Stanaway, 446 Mich at
680. Rather, discovery in criminal cases is left to the discretion of the trial court. Id. MCR
6.201 governs discovery in criminal cases. People v Philips, 468 Mich 583, 589; 663 NW2d 463
(2003). MCR 6.201(C)(1) provides in relevant part that “there is no right to discover
information or evidence that is protected from disclosure by constitution, statute, or privilege[.]”
However, “[i]f a defendant demonstrates a good-faith belief, grounded in articulable fact, that
there is a reasonable probability that records protected by privilege are likely to contain material
information necessary to the defense, the trial court shall conduct an in camera inspection of the
records.” MCR 6.201(C)(2).
Arguably, the trial court should have done an in-camera review of the records given the
accusation that Wilson also abused NB at some time. “In camera inspection is often utilized to
determine whether the evidence sought is discoverable.” People v Stanaway, 446 Mich 643,
680; 521 NW2d 557 (1994). Defendant’s assertion that the CPS records contain allegations of
sexual abuse against another individual demonstrates a good-faith belief grounded in articulable
facts that statements regarding sexual abuse of the victim would be in the records. As noted,
however, the trial court provided alternative relief in giving defendant full access to the police
reports concerning Wilson and leave to introduce evidence that Wilson had sexually assaulted
NB, a fact that might provide an alternative explanation for NB’s descriptions of abuse. Under
those circumstances, the trial court did not abuse its discretion as to the CPS documents.
B. PRODUCTION OF EMAIL COMMUNICATIONS
Next, defendant argues that the trial court abused its discretion in denying his motion for
the production of emails between Quinn and Bethea. During a pre-trial hearing, defendant
sought discovery of some emails between NB’s parents “relative to this existing matter.” The
prosecutor stated that she was unaware of the existence of the emails, that they were not
referenced in defendant’s motion for discovery, and that she did not have the opportunity to
inquire into their existence. At that point, the trial court said that defendant had “subpoena rights
and discovery rights independent of what the prosecution has.” Defense counsel responded that
he would make inquiries about those rights. It was clear that the court would rehear the motion
if other efforts proved unsuccessful. However, the issue was not raised again before the trial
court.
Defendant cannot show that the failure to subpoena the emails denied him a substantial
defense. Defendant did not make an offer of proof or otherwise describe the relevance of the
emails he sought. Rather, defendant merely sought discovery of the emails “relative to this
existing matter.”
3
A trial court’s ruling regarding whether records are discoverable or protected by privilege is
reviewed for an abuse of discretion. People v Stanaway, 446 Mich 643, 680; 521 NW2d 557
(1994).
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C. EXCLUSION OF VIDEO RECORDING
Defendant also argues that the trial court abused its discretion by excluding a video
recording of NB crying while she was on her way to Quinn’s house. The trial court excluded the
video on grounds of relevance. “ ‘Relevant evidence’ means evidence having any 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. “Evidence which
is not relevant is not admissible.” MRE 402.
The trial court properly excluded the video because NB’s emotions on an unknown day
lacked the necessary foundation to establish relevancy. The video, proffered by defendant, was
taken at unknown date and time, and under unexplained circumstances. In his appeal brief,
defendant speculates that the video was relevant to show that NB may have been molested by
Quinn, and that he had a strong motivation to shift the blame to defendant. Defendant’s
contention is unsupported by the records. Indeed, while there was evidence that NB was
sexually abused by Wilson, there were no allegations of sexual abuse of NB levied against
Quinn. Moreover, NB unequivocally testified that both defendant and Wilson had molested her.
The relevancy of the video was never shown to be anything more than speculation. Accordingly,
the trial court did not abuse its discretion by excluding it.
V. CONSECUTIVE SENTENCES
Defendant argues that the trial court had no authority to impose consecutive sentences
when there was no evidence that the offenses arose from the same transaction. We reject this
contention as the evidence supports the conclusion that counts 2 and 3 were part of the same
transaction. MCL 750.520b(3) gives the sentencing court authority to impose consecutive
sentences where the subject offenses arose from the same transaction. NB testified that
defendant entered her room while she was taking a nap, took off her clothes, and first inserted an
object inside her vagina, and thereafter, he placed it inside her buttocks. Defendant’s act of
penetrating both NB’s vagina and her buttocks with the dildo “grew out of a continuous time
sequence in which the act of vaginal [penetration] was immediately followed by the act of [anal
penetration].” People v Ryan, 295 Mich App 388, 403; 819 NW2d 55 (2012). Accordingly, the
sentencing court had the authority to impose consecutive sentences for these offenses.
This does not end our inquiry, however, because when a court has discretionary authority
to impose consecutive sentences, the decision to do so remains subject to review for an abuse of
discretion. 4 “In Michigan, concurrent sentencing is the norm” and a consecutive sentence may
only be imposed when the sentencing judge makes a record of the “particularized reasons—with
reference to the specific offenses and the defendant—to impose [the] sentence[s] consecutively.”
4
“[W]hen a statute grants a trial court discretion to impose a consecutive sentence, the trial
court’s decision to do so is reviewed for an abuse of discretion, i.e., whether the trial court’s
decision was outside the range of reasonable and principled outcomes.” Norfleet, 317 Mich App
at 654.
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The “strong medicine of consecutive sentences is reserved for those situations in which so drastic
a deviation from the norm is justified.” People v Norfleet, 317 Mich App 649, 666; 897 NW2d
195 (2016).
At sentencing, the trial court did not articulate reasons for exercising its discretion to
impose consecutive sentences. Accordingly, we vacate defendant’s sentence and remand for
resentencing. If the sentencing judge again chooses to impose consecutive sentences, he must set
forth grounds for that decision, consistent with Norfleet, and sufficient to allow appellate review.
Defendant’s convictions are affirmed and the matter remanded for resentencing. We
retain jurisdiction.
/s/ Stephen L. Borrello
/s/ Douglas B. Shapiro
/s/ Jonathan Tukel
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Court of Appeals, State of Michigan
ORDER
Stephen L. Borrello
People of MI v Willie Richardson Rodgers, Jr. Presiding Judge
Docket No. 334072 Douglas B. Shapiro
LC No. 2015-004189-FC Jonathan Tukel
Judges
Pursuant to the opinion issued concurrently with this order, the Court VACATES the July
5, 2016 judgment of sentence and REMANDS this matter to the Macomb Circuit Court for resentencing.
Should the sentencing judge again impose consecutive sentences, he must set forth on the record his
grounds for that decision, consistent with People v Norfleet, 317 Mich App 649, 666; 897 NW2d 195
(2016), and sufficient to allow appellate review. This Court retains jurisdiction in the cause.
Upon the expiration of the 56-day period in which to file an application for leave to
appeal in the Supreme Court, MCR 7.305(C)(2), the trial court shall commence resentencing
proceedings, and those proceedings shall be given priority on remand until they are concluded. The
parties shall promptly file with this Court a copy of all papers filed on remand. Within seven days after
entry, appellant shall file with this Court a copy of the judgment of sentence entered on remand. The
transcript of all proceedings on remand shall be prepared and filed within 21 days after completion of
the proceedings.
Either party may file a supplemental brief pertaining to the issues raised on remand
within 21 days after entry of the trial court’s order deciding the matter or 21 days after the transcript of
the hearing is filed, whichever is later. The responsive party may file a supplemental brief in reply.
Alternatively, the parties may file a stipulation to dismiss this appeal.
/s/ Stephen L. Borrello
June 26, 2018