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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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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