If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

February 15, 2024

v No. 360745

Berrien Circuit Court

WILLIAM BOOKER, JR., LC No. 2019-002184-FH

Defendant-Appellant.

Before: LETICA, P.J., and CAVANAGH and SWARTZLE, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of witness tampering, 

MCL 750.122(7)(b), and assault and battery, MCL 750.81(1). He was sentenced as a fourthoffense habitual offender, MCL 769.12, to serve concurrent terms of 46 months to 20 years’ 

imprisonment for witness tampering and 93 days’ in jail for assault and battery. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

This case stems from allegations made by defendant’s on-and-off girlfriend, RB, that in 

June 2019, she answered the door for defendant at her apartment when he attacked her. During 

this altercation, RB’s cousin, MB, and a third person, a friend, attempted to break up the attack, 

resulting in defendant hitting MB. RB testified that this altercation ended after she retrieved a 

knife from her kitchen and stabbed defendant in the neck. Defendant was charged with thirdoffense domestic assault, MCL 750.81(2), assault and battery, MCL 750.81(1), and first-degree 

home invasion, MCL 750.110(a), for this incident.

After defendant was arraigned, his counsel requested a bond. In light of a prior failure to 

appear and an escape from custody, the court imposed a $25,000 cash or surety bond that defendant 

was unable to post. Additionally, defendant was ordered not to contact the victims. Nonetheless, 

when defendant was incarcerated for the underlying charges, he called RB from jail and, over the 

course of numerous phone calls between July 2019 and September 2019, told her not to come to 

court. Defendant also promised to pay for the damages caused to RB’s property. When defendant 

received treatment for his injuries, he made various threats to harm RB, that prompted medical 

personnel to contact RB and warn her. RB was not scared because defendant was in jail; however, 
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she felt harassed and intimidated by his repeated jail phone calls requesting that she not come to 

court and for an affidavit. In light of defendant’s actions, the trial court granted the prosecution’s 

request to amend the information to add a charge of witness tampering.

Defendant was arraigned in June 2019, but his trial was delayed for a variety of reasons. 

Defense counsel requested a forensic evaluation in the fall of 2019. A finding that defendant was 

competent occurred in March 2020. A short time later, the trial court was shut down because of 

the Covid-19 pandemic. Additionally, defendant requested court-appointed counsel, but 

discharged the three public defenders that were assigned to him. Because defendant exhausted all 

the public defenders, the trial court appointed a private attorney to represent him.

1

 During various 

hearings, defendant became belligerent toward his counsel, the trial court, or both. He swore at 

his counsel and the presiding judge and questioned their competency. Defendant refused to 

participate in or attend hearings, fired his appointed counsel, failed to cooperate or listen to his 

rights during the waiver of counsel and the appointment of standby counsel, and left the video 

hearing room while hearings were in progress. As a result of defendant’s behavior, three hearings 

were held to complete his preliminary examination for the witness tampering charge. Although 

defendant claimed that his right to a speedy trial was violated, the trial court denied his motion. 

Additionally, defendant’s request to be released on personal recognizance was denied, with the 

trial court determining that defendant posed a danger to RB and the community.

Defendant’s jury trial was held in December 2021. At defendant’s trial, the prosecution 

played three of defendant’s jail phone calls to RB for the jury. RB testified that defendant’s phone 

calls did not dissuade her from testifying at trial. Defendant testified that he made these phone 

calls and told RB not to appear for trial because he was the victim and there was no reason for her 

to come to court and perjure herself.

Notably absent from defendant’s trial was Benton Harbor Public Safety Department 

Sergeant William Althouse, who investigated the home invasion and assaults at RB’s apartment.

2

 

Sergeant Althouse refused service of process for his subpoena to appear at trial. The prosecution 

informed the trial court that Sergeant Althouse was sick and on medical leave from work at the 

time. During the prosecution’s attempts to serve him, Sergeant Althouse refused to answer the 

door. Ultimately, Sergeant Althouse did not appear for trial. Consequently, defendant requested 

and received M Crim JI 5.12, permitting the jury to draw a negative inference from the witness’s 

absence.

Even so, the jury convicted defendant of misdemeanor assault of MB and witness 

tampering. But, he was acquitted of the home-invasion charge and domestic-assault charge 

pertaining to the entry into RB’s apartment and his assault upon her. Defendant’s request for 

postjudgment relief was denied. Defendant now appeals.

 

1 Ultimately, defendant sought to be represented by out-of-state counsel. But, this proposed 

counsel did not satisfy the requirements to be admitted pro hac vice.

2 Sergeant Althouse was also scheduled to testify at the first preliminary examination but was 

called away because of a “family matter.”
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II. RIGHT TO A SPEEDY TRIAL

Defendant asserts that he was denied his right to a speedy trial. We disagree.

The question of whether a defendant was deprived of his right to a speedy trial presents a 

question of constitutional law subject to de novo review. People v Williams, 475 Mich 245, 250; 

716 NW2d 208 (2006). The trial court’s factual findings are reviewed for clear error. People v 

Gilmore, 222 Mich App 442, 459; 564 NW2d 158 (1997). “Clear error occurs if the reviewing 

court is left with a definite and firm conviction that the trial court made a mistake.” People v 

Johnson, 502 Mich 541, 565; 918 NW2d 676 (2018) (quotation marks and citation omitted).

Both the United States Constitution and Michigan Constitution guarantee a defendant the 

right to a speedy trial. US Const, Am VI; Const 1963, art 1, § 20. In Michigan, this right is 

enforced by statute and by court rule. People v Williams, 475 Mich 245, 261; 716 NW2d 208 

(2006), citing MCL 768.1 and MCR 6.004(A). The purpose of this guarantee is “to minimize the 

possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, 

impairment of liberty imposed on an accused while released on bail, and to shorten the disruption 

of life caused by arrest and the presence of unresolved criminal charges.” People v Sierb, 456 

Mich 519, 531 n 19; 581 NW2d 219 (1998) (quotation marks and citation omitted). Our Courts 

apply the four-part balancing test articulated in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L 

Ed 2d 696 (1982), to determine if a pretrial delay violated a defendant’s right to a speedy trial. 

Williams, 475 Mich at 261. This test requires the court to balance the following factors: “(1) the 

length of delay, (2) the reason for delay, (3) the defendant’s assertion of the right, and (4) the 

prejudice to the defendant.” Id. at 261-262. No single factor is “either a necessary or sufficient 

condition to” a meritorious speedy-trial claim. Barker, 407 US at 533. When a delay is 18 months 

or more, prejudice is presumed and the burden is placed on the prosecution to rebut that 

presumption. Williams, 475 Mich at 262; People v Cain, 238 Mich App 95, 112; 605 NW2d 28

(1999).

“The time for judging whether the right to a speedy trial has been violated runs from the 

date of the defendant’s arrest.” Williams, 475 Mich at 261. “[T]he length of delay is not 

determinative of a speedy trial claim . . . .” Cain, 238 Mich App at 112 (quotation marks and 

citation omitted). In this case, defendant was already incarcerated for an alleged personal 

protection order violation when he was arraigned for charges of home invasion, domestic assault, 

and assault and battery on June 20, 2019. Likewise, defendant remained incarcerated when the 

prosecution amended the information on October 31, 2019, to add a charge for witness tampering. 

Defendant ultimately had his trial for all charges from December 7, 2021 through December 10, 

2021. Accordingly, there was an approximate 29-month delay between defendant’s arraignment 

for home invasion, domestic assault, and assault and battery, and his trial, and an approximate 25-

month delay between defendant being charged with witness tampering, and his trial. Because the 

delays in this case were longer than 18 months, prejudice is presumed unless rebutted by the 

prosecution and examination of the other three factors is required to determine whether defendant 

was deprived of his right to a speedy trial. See id.

The period of the delay and the party responsible for the delay, the prosecution or 

defendant, must be examined. See id. at 113. “Although delays inherent in the court system, e.g., 

docket congestion, are technically attributable to the prosecution, they are given a neutral tint and 
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are assigned only minimal weight in determining whether a defendant was denied a speedy trial.” 

Gilmore, 222 Mich App at 460 (quotation marks and citation omitted). In the context of the 180-

day rule, this Court has concluded that delay caused by the Michigan Supreme Court’s decision to 

suspend jury trials during the COVID-19 pandemic was neutral or not attributable to either party. 

See People v Witkoski, 341 Mich App 54, 63-64; 988 NW2d 790 (2022). A defendant’s request 

for adjournments and time spent adjudicating defendant’s motions are attributable to defendant. 

See Cain, 238 Mich App at 113. Further, the withdrawal of defense counsel is not attributable to 

the prosecution. See People v Collins, 388 Mich 680, 691; 202 NW2d 769 (1972). The court may 

hold the prosecution responsible for unexplained or otherwise unattributable delays. People v 

Lown, 488 Mich 242, 262; 794 NW2d 9 (2011).

Defendant was originally scheduled for trial in November 2019, but the trial was delayed 

when defendant engaged in witness tampering and needed to be arraigned for the additional charge. 

This first delay was attributable to defendant. Additionally, delay occurred between 

November 2019 and March 2020, because of defendant’s competency examination and 

determination. The record indicates that defense counsel requested this hearing. Accordingly, this 

delay is also attributable to defendant. See Cain, 238 Mich App at 113.

3

 After defendant was 

deemed competent for trial, Berrien County halted jury trials from April 2020 through at least 

May 2021.4 The time that trial courts could not conduct jury trials because of COVID-19 is neutral 

and unattributable to either party. See Witkoski, 341 Mich App at 63. The remainder of the delays 

in this case were primarily attributable to defendant’s inability to cooperate with multiple attorneys 

and his disruptions in the trial court. Accordingly, this factor does not favor defendant.

The third factor is defendant’s assertion of the right. Defendant asserted his right to a 

speedy trial several times in the trial court. Defendant first asserted his right to a speedy trial in 

April 2020. However, the trial court did not rule on this motion because the attorney who

submitted it withdrew from representing defendant. Defendant next moved for release on personal 

recognizance in September 2020, premised on a speedy-trial claim. The trial court denied this 

 

3 Defendant contends that he never challenged his competency. However, at the arraignment on 

June 20, 2019, the trial court noted that the attempt to arraign defendant on June 19, 2019 failed 

because defendant did not appropriately respond to questions and made questionable statements. 

At that time, the trial court noted that defense counsel may have to raise the issue of competency, 

and defense counsel did seek the forensic evaluation. And, at the arraignment hearing on 

November 5, 2019, defendant failed to follow procedure to allow the hearing to occur. The trial 

court noted that defendant refused to listen. Defendant responded, “[E]very time I come I’m gonna 

mess up the record.” The court noted that it would try “another day” to address the matter. And, 

when defendant began to represent himself, he sought to call other circuit judges as witnesses. The 

trial court noted that defendant would have to submit an offer of proof to demonstrate the need to 

call those witnesses. If the court found that the testimony of those witnesses was relevant, the trial 

court noted that it would be disqualified from hearing the trial, and the case would be transferred 

to another county. Defendant admitted on the record that the transfer of the case was his objective.

4 During various hearings, the prosecutor explained that vaccination rates, social distancing issues, 

and infection levels determined whether the state court administrator allowed jury trials to be held.
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motion.5 Finally, in April 2021, defendant moved in propria persona to dismiss because he was 

denied a speedy trial, but the trial court denied the motion. Defendant did assert his right although 

his forensic evaluation and repeated firings of his appointed counsel prevented his trial from being 

held.6

The final factor is prejudice to the defendant. A defendant may face two types of prejudice,

“prejudice to his person and prejudice to the defense.” Williams, 475 Mich at 264 (quotation marks 

and citation omitted). Prejudice to the defense is the more serious inquiry of the two. People v 

Simpson, 207 Mich App 560, 564; 526 NW2d 33 (1994). “[I]n determining prejudice to a 

defendant, we do not look at how the prosecutor’s case was improved during the delay, but to 

whether the defendant’s defense was degraded.” People v Holtzer, 255 Mich App 478, 494; 660 

NW2d 405 (2003). General allegations of prejudice are insufficient to establish prejudice. See 

Gilmore, 222 Mich App at 462. Further, “anxiety, alone, is insufficient to establish a violation of 

defendant’s right to a speedy trial.” Id.

Defendant asserts that he was personally prejudiced because excessive pretrial

incarceration led to stress, loss of contact with family and friends, and loss of income. Specifically, 

defendant asserts that he was financially limited to retain his own attorney and cites to the inability 

to retain out-of-state counsel. However, the record indicates that out-of-state counsel was removed 

from this case because he could not find local counsel to comply with pro hac vice requirements 

as opposed to defendant’s inability to pay for representation. See MCR 8.126. Aside from 

defendant’s unsupported assertion that he could not afford to pay this attorney, defendant’s claims 

regarding personal prejudice are general. Accordingly, defendant has failed to establish prejudice 

such that he was denied a speedy trial in relation to his person. See Gilmore, 222 Mich App at 462.

Defendant also asserts that the delay caused a crucial witness, Sergeant Althouse, to be 

absent from trial. Specifically, he contends that Sergeant Althouse would testify that RB lied to 

Sergeant Althouse when she provided a statement to him and that Sergeant Althouse’s signature 

on the complaint and warrant was essentially a forgery. Finally, defendant submits that cross-

 

5 The trial court determined that defendant was arraigned on June 18, 2019. However, the criminal 

action was tolled on November 18, 2019, until defendant was deemed competent on March 6, 

2020. The trial court determined that defendant was in jail for 190 days, or just over six months, 

when the Covid-19 restrictions that precluded jury trials took effect. The trial court also denied 

defendant’s request to be released on personal recognizance, determining that defendant posed a 

danger to the victim and the community.

6 Defendant claimed that he did not request a competency examination or the appointment of 

counsel, and therefore, the delays caused by the forensic evaluation and the firing and appointment 

of new counsel should not be attributed to him. Defendant’s claim is belied by his acceptance of 

appointed counsel and his acceptance and participation in the forensic evaluation. Indeed, 

defendant repeatedly refused to come to or continue to participate in hearings when he did not 

want to do so.
-6-

examination of Sergeant Althouse was necessary for his defense of the witness-tampering 

conviction. None of these assertions support a finding of prejudice.

Even before addressing defendant’s assertions of prejudice, we note that there is 

insufficient evidence in the record to connect Sergeant Althouse’s refusal to appear for trial to the 

delay in proceedings. Defendant did not assert that testimony that Sergeant Althouse could provide 

was diminished by loss of memory. Instead, the record indicates that the parties knew where 

Sergeant Althouse was, he was on medical leave, and that he simply refused to appear for trial.

Assuming without deciding that Sergeant Althouse’s refusal to appear for trial was caused 

by the delay, his investigation of the purported domestic assault and home invasion for which 

defendant was acquitted was unrelated to defendant’s witness-tampering charge. As such, 

defendant was not prejudiced by his inability to examine Sergeant Althouse on that charge. 

Defendant was charged with witness tampering for phone calls that he made to RB between 

July and September 2019, during his incarceration. Nothing in the record suggests that Sergeant 

Althouse had any knowledge of the circumstances behind the investigation of defendant’s witnesstampering conviction.7

Balancing these four factors, defendant has not demonstrated that his convictions should 

be vacated based on a violation of his right to a speedy trial. In defendant’s favor, there were

delays of 25 and 29 months between his arraignments and his trial. Further in his favor, defendant 

asserted his right to a speedy trial several times throughout the lower court proceedings. But the 

reasons for the delay and the lack of prejudice weigh heavily against defendant given that the 

prosecutor rebutted the presumption of prejudice. The reasons for the delay were mostly 

attributable to COVID-19, a neutral factor, see Witkoski, 341 Mich App at 63, and defendant’s 

inability to cooperate with his attorneys or participate in the trial court proceedings without causing 

disruptions by swearing at the participants and leaving the proceedings. These latter reasons for 

delay are attributable to defendant. Finally, defendant was unable to show that his defense was 

prejudiced by the delay and only claimed general prejudice to his person. When balancing these 

factors, defendant has not established a violation of his right to a speedy trial. Accordingly, the 

 

7 Curiously, defendant represented himself during the continuation of the preliminary examination. 

At that time, defendant sought to call circuit court judges and the prosecutor as witnesses. He 

never sought to call Sergeant Althouse as a witness, and thus, preserve the testimony in the event 

Sergeant Althouse was later unavailable at trial. Moreover, although defendant makes blanket 

assertions addressing an inability to cross-examine Sergeant Althouse regarding RB’s statements 

and the signature on the complaint, defendant failed to obtain an affidavit to substantiate his 

theories. His blanket assertions are insufficient to support his claim. See People v Payne, 285 

Mich App 181, 195; 774 NW2d 714 (2009). And, the claim that the testimony was necessary to 

prevent an “illogical” acquittal of home invasion and domestic assault is without merit. A jury 

may render an inconsistent verdict. See People v Putnam, 309 Mich App 240, 251; 870 NW2d 

593 (2015). Finally, we note that RB turned a letter over to the prosecutor that supported the 

witness tampering claim. And, the jail phone calls were presented to the prosecutor through jail 

staff. There is no record evidence correlating Sergeant Althouse to an investigation of the witness 

tampering charge such that his failure to appear at trial could be deemed prejudicial.
-7-

trial court did not clearly err in denying defendant’s speedy-trial challenge. Williams, 475 Mich 

at 262; Cain, 238 Mich App at 112.

III. SENTENCING

Next, defendant contends that the trial court imposed a retaliatory sentence in response to 

defendant’s rejection of a plea deal and the exercise of his right to a jury trial. We disagree.

A defendant’s assertion that a sentence is retaliatory in response to him exercising his right 

to a jury trial is a constitutional issue that we review de novo. See People v Brown, 294 Mich App 

377, 389; 811 NW2d 531 (2011). “A sentencing court cannot base its sentence on a defendant’s 

decision to exercise his constitutional right to a jury trial.” Id. But, “[i]t is not per se 

unconstitutional for a defendant to receive a higher sentence on a trial conviction than was 

promised him if he would plead guilty.” People v Rivers, 147 Mich App 56, 60-61; 382 NW2d 

731 (1985).

The record does not support defendant’s contention that the trial court imposed a harsher 

sentence because defendant rejected a plea deal and chose to proceed to trial. The prosecution 

offered defendant several pleas, including a final plea deal in which defendant would plead no 

contest to third-offense domestic assault in exchange for the dismissal of all other charges, 

including a fourth-offense habitual offender supplement. In this plea deal, the prosecution 

estimated that defendant’s minimum sentencing range was 10 to 23 months’ imprisonment. The 

trial court also offered defendant a Cobbs agreement8that would have permitted him to be 

sentenced to time served. When the trial court attempted to discuss the Cobbs agreement, 

defendant repeatedly interrupted the trial court. In an attempt to prevent further interjections and 

to capture defendant’s attention, the trial court noted that the Cobbs agreement would allow 

defendant to go home and sleep in his own bed. Defendant rejected these offers. Ultimately, 

defendant was convicted of assault and battery and witness tampering. The trial court sentenced 

defendant to 46 months to 20 years’ imprisonment for witness tampering. The trial court 

explained:

This defendant, not satisfied . . . with the criminal justice system manipulated, 

cajoled, and encouraged this alleged victim [RB] not to testify against him. This 

will not be tolerated and that’s why the Legislature in Michigan has decided that 

this is a felony, and that’s why this defendant deserves punishment for this 

behavior.

Nothing in the record suggests that the trial court imposed the sentence of 46 months to 

20 years’ imprisonment in retaliation for defendant’s decision to reject the final plea deal and 

proceed with trial. Witness tampering, MCL 750.122(7)(b), is a Class D offense with a typical 

maximum sentence of 10 years, MCL 777.16f. However, because defendant was sentenced as a

fourth-offense habitual offender, the maximum sentence was enhanced to 20 years. See 

MCL 777.21(3)(c). Defendant’s minimum sentencing guidelines range was 10 to 46 months’

 

8 People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).
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imprisonment. Defendant was sentenced within that range. Sentences within the minimum 

sentence guideline are presumed to be reasonable. People v Posey, 512 Mich 317, 351-352; 

___NW2d ___ (2023). Defendant risked being sentenced to a lengthy prison term when he rejected 

the various plea offers while on notice of his status as a habitual fourth-offender. Ultimately, the 

trial court articulated a nonretaliatory reason on the record for imposing defendant’s sentence, and 

the plea deals that the prosecution and trial court offered defendant was for third-offense domestic 

assault and not witness tampering. Nothing in the record supports defendant’s contention that the 

trial court sentenced defendant more harshly in retaliation for rejecting a plea deal and proceeding 

to trial. Accordingly, the trial court did not err in denying defendant’s motion to correct an invalid 

sentence.

IV. MOTION FOR DIRECTED VERDICT

Next, defendant contends that there was insufficient evidence to convict him of witness 

tampering under MCL 750.122(6) because he believed that he was innocent of the underlying 

charges and he merely requested that RB not attend court. We disagree.

We review de novo a trial court’s decision denying a motion for a directed verdict. People 

v Quinn, 305 Mich App 484, 491; 853 NW2d 383 (2014). Specifically, we review “to determine 

whether the evidence presented by the prosecutor, viewed in the light most favorable to the 

prosecutor, could persuade a rational trier of fact that the essential elements of the crime charged 

were proved beyond a reasonable doubt.” Id. (quotation marks and citation omitted). This Court 

must elicit all reasonable inferences and make credibility determinations that support the jury 

verdict. People v Thurmond, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket 

No. 361302), slip op at 2. Further, proof of the elements of the crime may be satisfied by 

circumstantial evidence and reasonable inferences arising therefrom. Id. These standards, 

traditionally applied to challenges to the sufficiency of the evidence, also apply to motions for a 

directed verdict or motions for judgment notwithstanding the verdict. Id. “Due process requires 

that the evidence show guilt beyond a reasonable doubt in order to sustain a conviction.” People 

v Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008).

Defendant was charged with witness tampering under MCL 750.122(6).9 To convict an 

individual under this subsection, the prosecution must prove beyond a reasonable doubt that the 

defendant:

(1) committed or attempted to commit (2) an act that did not consist of bribery, 

threats or intimidation, or retaliation as defined in MCL 750.122 and applicable 

case[]law, (3) but was any act or attempt that was done willfully (4) to impede, 

interfere with, prevent, or obstruct (5) a witness’s ability (6) to attend, testify, or 

 

9 MCL 750.122(6) states:

A person shall not willfully impede, interfere with, prevent, or obstruct or 

attempt to willfully impede, interfere with, prevent, or obstruct the ability of a 

witness to attend, testify, or provide information in or for a present or future official 

proceeding.
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provide information in or for a present or future official proceeding (7) having the 

knowledge or the reason to know that the person subjected to the interference could 

be a witness at any official proceeding. [People v Greene, 255 Mich App 426, 442-

443; 661 NW2d 616 (2003).]

In Greene, this Court defined a “witness’s ability” for purposes of the subsection:

Ability is the power or capacity to do or act physically, mentally, legally, morally, 

or financially. This is a broad description of the human facility to act, not at all 

limited to the logical ways in which a tamperer might try to interfere with a witness, 

including the witness’s ability to travel, appear at the place designated for an 

“official proceeding,” or biological ability to recall information or provide 

testimony, whether spoken, written, signed, or communicated in another manner.

This breadth implies that subsection 6 makes illegal any act or attempt, no matter 

its form, to keep the witness from “attend[ing], testify[ing], or provid[ing] 

information in or for a present or future official proceeding by affecting the 

witness’s ability to do so. [Id. at 441 (alterations in original; footnote omitted).]

The Court further explained that “a request, alone, not to attend a hearing or a stated desire that a 

witness not attend a hearing would be unlawful under MCL 750.122(6).” Id. at 447. But, a 

question of fact may exist when a defendant attempts to dissuade a witness from providing 

testimony but the witness appears at the hearing anyway. Id. at 447-448. Specifically, when a 

defendant was aware that a witness would present preliminary examination or trial testimony and 

then willfully attempted to interfere with the witness’s intent to attend the hearing, by explicitly 

telling the witness not to attend, by exploiting the witness’s feelings for the defendant, and by 

downplaying the consequences of disobeying a subpoena, the fact-finder must determine whether 

the defendant’s conduct “fit” within the witness intimidation statute’s attempt language. Id.

Examining the evidence presented at trial in a light most favorable to the prosecution, a 

rational trier of fact could find defendant guilty of witness tampering under MCL 750.122(6). 

Defendant was ordered not to have contact with RB as a condition of bond. After defendant was 

arraigned and told not to have contact with RB, defendant called her from jail. Three of these 

recordings from July 3, 2019, July 26, 2019, and September 21, 2019, were played at trial. During

these three calls, defendant told RB numerous times not to come to court, using varying tactics. 

These tactics included claiming that RB would be subject to a perjury charge and a substantial 

prison term, appealing to RB’s sympathy in light of defendant’s potential penalty, applying social 

pressure by having other individuals contact RB, and asserting that the judicial system was out to 

get both defendant and RB.

Witness tampering prohibits conduct by a defendant that acts to impede, interfere with,

prevent, or obstruct the witness’s ability to testify at trial. See id. at 440-441. However, 

defendant’s actions need not be successful to be criminalized under MCL 750.122(6) because this 

subsection includes both successful interference and an attempt to interfere. See id. at 440. The 

witness’s “ability” to testify includes her “power of capacity to do or act physically, mentally, 

legally, morally, or financially.” Id. at 441. In this case, defendant’s conduct was aimed at RB’s 

moral ability to testify when he attempted to convince her that she would face perjury charges if 

she testified and that the judicial system was out to get both defendant and RB. He also attempted 
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to play on her sympathy for him by repeatedly asserting the possible penalties that he faced, and 

he engaged in social pressure when he had other community members contact RB to pressure her 

not to appear in court. A reasonable trier of fact could determine that each of these tactics was an 

attempted interference with RB’s moral ability to attend court by persuading her that the right thing 

to do was skip the criminal proceedings.10

V. GREAT WEIGHT OF THE EVIDENCE

Next, defendant contends that his guilty verdict for witness tampering was against the great 

weight of the evidence because he steadfastly believed that he was innocent of home invasion and 

domestic assault and that he was calling the person who assaulted him to tell her not to come to 

court. We disagree.

“The test to determine whether a verdict is against the great weight of the evidence is 

whether the evidence preponderates so heavily against the verdict that it would be a miscarriage 

of justice to allow the verdict to stand.” People v Anderson, 322 Mich App 622; 632; 912 NW2d 

60 (2018). “Generally, a verdict may be vacated only when the evidence does not reasonably 

support it and it was more likely the result of causes outside the record, such as passion, prejudice, 

sympathy, or some other extraneous influence.” People v Lacalamita, 286 Mich App 467, 469; 

780 NW2d 311 (2009). Determining whether a verdict is against the great weight of the evidence 

requires review of the whole body of proofs. People v Herbert, 444 Mich 466, 475; 511 NW2d 

654 (1993), overruled in part on other grounds in People v Lemmon, 456 Mich 625; 576 NW2d 

129 (1998). Absent exceptional circumstances, however, a reviewing court may not substitute its 

view of the credibility of witnesses for that of the jury. See Lemmon, 456 Mich at 642.

As stated in the previous issue, sufficient evidence supported defendant’s conviction of 

witness tampering. Nothing in the elements of MCL 750.122(6), see Greene, 255 Mich App 

at 442-443, suggests that defendant’s personal belief that he was innocent of the underlying crimes 

that he was charged with excused his attempt to interfere with a witness testifying in the criminal 

case. Accordingly, we reject defendant’s contention that the jury’s verdict was against the great 

weight of the evidence.

VI. JURY INSTRUCTION

Finally, defendant argues that the trial court erred by failing to include defendant’s theory 

for why Sergeant Althouse refused to appear at trial in its recitation of M Crim JI 5.12. Defendant 

waived this issue and, therefore, extinguished any error.

Waiver is distinct from forfeiture. Waiver is “the intentional relinquishment or 

abandonment of a known right.” People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) 

(quotation marks and citations omitted). Whereas forfeiture is the “failure to make the timely 

assertion of a right.” Id. (quotation marks and citation omitted). A defendant “who waives his 

 

10 Defendant also alleged that witness tampering was a predicate offense for the other charges. 

However, he abandoned this claim by failing to cite any authority in support or rationalize his 

claim. See Payne, 285 Mich App at 195.
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rights under a rule may not then seek appellate review of a claimed deprivation of those rights, for 

his waiver has extinguished any error.” Id. (quotation marks and citations omitted).

The Michigan Supreme Court explained that a defendant must affirmatively express 

satisfaction with the trial court’s conduct to waive:

In People v Fetterley, 229 Mich App 511, 518-519, 583 NW2d 199 (1998), the trial 

court denied the jury’s request for a transcript of the testimony of one of the 

witnesses. The court explained that it did not have a transcript and instructed the 

jury to remember the testimony as best it could. Both attorneys indicated that they 

had no objection to the trial court’s decision. Id., 519. Rejecting the defendant’s 

argument that this constituted an error requiring reversal pursuant to 

MCR 6.414(H), the Court of Appeals explained, defense counsel expressly 

acquiesced to the court’s handling of the jury’s request. [Carter, 462 Mich at 214 

(quotation marks and citation omitted; emphasis added).]

This Court has concluded that “[w]hen the trial court asks whether a party has any 

objections to the jury instructions and the party responds negatively, it is an affirmative approval 

of the trial court’s instructions.” People v Miller, 326 Mich App 719, 726; 929 NW2d 821 (2019). 

The Michigan Supreme Court has also affirmed a waiver when the discussion and decision to 

provide jury instructions occurred at both the start and end of the jury trial. See People v Kowalski, 

489 Mich 488, 503; 803 NW2d 200 (2011).

In the instant case, defendant waived appellate review of this issue. When examining the 

entire record, defendant affirmed the trial court’s recitation of M Crim JI 5.12 at various times 

throughout the trial. First, defendant requested that the trial court read M Crim JI 5.12 to the jury. 

In response, the trial court stated the following:

Sergeant William Althouse is a missing witness whose appearance was the 

responsibility of the prosecution, and may infer that this witness’s testimony would 

have been unfavorable to the prosecution’s case. Is that the instruction you’re 

requesting?

Defendant stated, “Yes, your Honor,” to affirm this instruction. Later, the prosecution sought to 

call a witness to explain to the jury why Sergeant Althouse refused to appear for trial. Defendant 

objected to the prosecution’s request. After both parties rested, the parties reviewed the jury 

instructions with the trial court once more. The discussion included the trial court reading M Crim 

JI 5.12 again, and asking both parties whether they wanted anything else added to the jury 

instructions. Both parties affirmed that the full jury instructions were sufficient. Defendant 

affirmed the proposed jury instruction a final time during jury deliberations when the jury inquired 

why Sergeant Althouse was not present.
-12-

This record shows that defendant affirmatively approved the jury instructions twice before 

the instructions were read to the jury. Defendant specifically approved M Crim JI 5.12 a third time 

when the trial court reread it to the jury in response to its question. Based on this record, defendant 

waived any appellate challenge to the instruction. See Kowalski, 489 Mich at 504 n 26.

Affirmed.

/s/ Anica Letica

/s/ Mark J. Cavanagh

/s/ Brock A. Swartzle