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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant, UNPUBLISHED November 29, 2016

v No. 327905 Wayne Circuit Court TREMEL ANDERSON, LC No. 15-001051-01-AR

Defendant-Appellee.

Before: S AAD , P.J., and J ANSEN and M. J. K ELLY , JJ.

S AAD
, P.J. ( dissenting ).

I respectfully dissent.

Although a district court conducting a preliminary examination has the obligation to assess credibility, People v Paille , 383 Mich 621, 627; 178 NW2d 465 (1970), our Supreme Court has also cautioned magistrates “to not refuse to bind a d efendant over for trial when the
evidence conflicts or raises reasonable doubt of the defendant’ s guilt,” People v Yost , 468 Mich 122, 128; 659 NW2d 604 (2003). The Court in Yost noted the “tension” between these principles, yet declined to c larify how they interplay. Id. at 128 n 8.

This Court reviews a district court’s decision on a motion to bind a defendant over for
trial for an abuse of discretion. People v Drake , 246 Mich App 637, 640; 633 NW2d 469 (2001).
A court abuses its discretion when its decision falls outside t he range of reasonable and principled outcomes. People v Shank , 313 Mich App 221, 227; 881 NW2d 135 (2015). Further,
the district court’s factual determinations are reviewed for cl ear error, MCR 2.613(C), and
should not be disturbe d unless a reviewing c ourt is left “with a definite and firm conviction that a mistake has been made,” People v McElhaney , 215 Mich App 269, 273; 545 NW2d 18 (1996).

A defendant is properly bound over for trial after a prelimina ry examination if the district court finds that a felony has been committed and there is proba ble cause to believe that the
defendant committed the crime. Yost , 468 Mich at 125, citing MCL 766.13. “The probable cause standard is not a very demanding threshold.” People v Harlan , 258 Mich App 137, 145; 669 NW2d 872 (2003). “Probable cause requires a quantum of evi dence sufficient to cause a person of ordinary prudence and ca ution to conscientiously ente rtain a reasonable belief of the accused’s guilt.” Yost , 468 Mich at 126. Indeed, “the prosecution need not prove eve ry element beyond a reasonable doubt, but must present some evidence of ea ch element.” People v Redden

, 290 Mich App 65, 84; 799 NW2d 184 (2010).-2- Here, defendant was charged with assault with intent to commit murder, MCL 750.83, carrying a concealed weapon, MCL 750.227, felonious assault, MC L 750.82, and carrying a firearm during the commission of a felony, MCL 750.227b. As th e majority correctly summarized, the testimony supplie d by Michael Larkins described how defendant committed the charged crimes. However, the district court dismissed the char ges against defendant solely because it concluded that Larkins was not credible. I disagree with the majority’s view that the court provided “several reasons” for finding Larkins not credib le. The court essentially relied on one reason—the fact that Larkins repeatedly referenced a desire , during his encounter with defendant, to get his Christmas gifts that were in the trunk of defendant’s vehicle. The court
found this behavior inconsisten t with one who was being threate ned with a gun and stated:

This young man wants me to believe that somebody had a gun on him; they pulled the car over; he aske d to get out; but he wanted hi s Christmas gifts.

He is afraid because this person had threatened to kill him an d they’re pointing a gun at him, but he wan ts to get his Christmas gifts for his family.

* * *

There’s no witness, other tha n this young man, who is just all over the place everywhere and although he’s claimed that this gun was pu lled out, I’m just going to tell you, I am having a hard time believing that his l ife was at stake and we have no tape of the 911 call th at supports that he felt that he was in danger.

* * *

He still wants to get his Christmas gifts. He still sits in t he car negotiating . . . for [the] Christmas gifts.

But for his reference to the Christmas gifts, it seems that th e court would have found
Larkins credible. I have a defi nite and firm conviction that t he district court erroneously found Larkins not credible based on his testimony related to these Ch ristmas gifts. I believe that Larkins’ testimony presented a question of fact for the jury to decide. Simply because the district court thought that a pers on who was confronted with a pointed gun would have behaved differently does not mean that the events as Larkins described did not happen. The district judge relied on her own life experiences when it made this determinat ion. But a jury, with varied and different life experiences, may disagree. Further, Larkins’ te stimony shows that his mentioning of the Christmas gifts all occurred while he was sitting in the car with defendant before she allegedly tried to pull the trigger . Thus, assuming that the distr ict court was correct that Lark ins did not truly feel threatened while sitting in the car, that fe eling clearly changed once defendant allegedly attempted to pull the trigger, which caused Larkins t o run away. There is no evidence that Larkins continued this “preoccupation” with negotiating fo r the Christmas gifts after defendant initially unsuccessfully pulled the trigger nor after she successfully fired several shots as Larkins ran away. Simply put, while Larkins’ focus on Chris tmas gifts may have provided-3- some insight into what he was thinking and feeling at that time

, 1 the crucial events (the failed attempt and subsequent successful firings of the gun) happened after his gifts discussion with defendant

.
I also would note that, as the prosecutor argued at the distri ct court, while Larkins’ testimony at times lacked focus and delved into irrelevant area s, it was at least consistent. That is, he did not deviate from hi s claims related to the gun. AndI further question the district court’s decision to not grant the prosecution’s request for an adjournment once the court found the sole witness not credible. Such harsh action suggests that the court was not willing to consider that Larkins was telling the truth.

Therefore, while district courts can assess credibility, they must be careful not to do so in a manner that usurps the role of the jury. When a court declin es to bind a defendant over based on a finding that a witness was not credible, the court must be able to point to concrete deficiencies in the testimony or some other compelling circumst ances, otherwise such credibility determinations tend to intrude on the province of the jury. He re, I believe that the district court clearly erred when it based its credibility determination on La rkins’ perceived preoccupation with the Christmas gifts; thus, it necessarily abused its discr etion when it failed to bind defendant
over for trial. The trial court did not point to any inconsist encies in the victim’s account, nor to any evidence of a history of false accusations. Indeed, the tr ial court did not make any record of objective facts to support her cre dibility determinations. By making this ruling simply because she did not believe the victim’s account, the trial judge usurp ed the role of the prosecutor and the jury.

Furthermore, if our Court were to take the approach suggested by the majority, then no credibility determination at a preliminary examination could ev er be reviewed, regardless of how unsubstantiated or whimsical it was. While I acknowledge that deference must be given to a district court’s credibility determinations, this does not mean that such determinations must automatically be upheld. For example, the majority presumably would accept a district court’s finding that a witness was not credible even if the court provi ded no reasons for its finding or if
its rationale was patently spurious

. 2 This causes me grave concern. I f there is to be a thoughtful

1 Larkins testified that, after d efendant pulled the car over, t his discussion lasted anywhere from five to seven minutes. During this somewhat lengthy discussion , Larkins may have unreasonably/erroneously assessed the situation and believed th at defendant would not actually pull the trigger, which caused him to delve into more mundane i ssues, such as the gifts. Or, perhaps, this was his way of dist racting defendant from her ang er toward Larkins.

2 For example, if a district court stated that it found the comp laining witness at a preliminary examination not credible because the witness was a Capricorn, I would think that a reviewing court would not be bound by that determination and could easily rule that the finding is clearly erroneous. A more grounded exampl e would be if the district co urt failed to find a victim
credible because the victim was not terribly literate, sophisti cated, or articulate. Indeed, the witness may be unattractive in many ways, but, as in our case, if nothing the witness says is-4- balance between the tensional pr inciples of allowing a jury to decide cases and all owing a district court to make credibility determin ations at a preliminary exami nation, see Yost , 468 Mich at 128, then appellate review must ensure that there is something more to support the district court’s determination than a simple recitation that the court does not believe the victim. The majority’s
fear that this Court would be substituting its judgment for tha t of the district c ourt, which had the opportunity to observe the witnesses, is misguided. I am not s uggesting a de novo review, where this Court could simply substitute its judgment; instead, I bel ieve the ubiquitous clear-error standard of review that this Court implements for the review of virtually every other factual finding made by a court provides the proper amount of deference and protection to alieve any concerns. Had the district court made a record of objective fa ctors that called into question the victim’s testimony, then I would likely conclude that there is record evidence to support its credibility determination.

Moreover, by the simple expedient of the district judge saying “I don’t believe the victim” and thus dismissing the case, the judge has virtually o verruled the prosecutor’s decision to proceed, denied the victim a chance at justice in our crimin al justice system, and has displaced the jury as the proper actor in this drama to make the ultimate decision on innocence or guilt. This is much too high a price to pay at the altar of deference to the trial judge. Indeed, a terribly high price to pay, particularly where, as here, there is no fin ding on the record by the district court to support its suppositi on that the victim is lying. 3

Accordingly, I would reverse and remand for entry of an order to reinstate the charges against defendant and to bi nd defendant over for trial.

/s/ Henry William Saad

contradicted by anyone or anything and the testimony is consist ent, the testimony should be accepted absent other indicia of unreliability.

3 I stress that my position throughout this opinion solely perta ins to credibility determinations made at a preliminary examination. Although some of my points may nonetheless apply to credibility determinations in other contexts, such as a trial c ourt acting as a finder of fact in a bench trial, these other contexts do not implicate the competin g principles that are unique to a preliminary examination. See Yost , 468 Mich at 128.