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-Appellant

UNPUBLISHED

September 17, 2019

v No. 346398

Kent Circuit Court

BRIAN EDWARD BOROWKA, JR., LC No. 17-010721-FC

Defendant-Appellee.

Before: SWARTZLE, P.J., and GLEICHER and M. J. KELLY, JJ.

PER CURIAM.

Once an information is filed and a prosecution is underway, MCL 767.29 constrains the 

prosecutor’s power to dismiss the matter without prejudice, called a nolle prosequi. “Leave of 

the court” is required. This statutory mandate replaced the common-law principle that dismissal 

was a prosecutor’s prerogative, regardless of the judge’s view. The statute dictates that “a trial 

court’s approval is the sine qua non of the decision to nolle prosequi.” People v Reagan, 395 

Mich 306, 317; 235 NW2d 581 (1975).

The trial court denied leave to file a nolle prosequi, finding that the prosecutor was 

motivated solely by a desire to “get around” the court’s decision not to adjourn the trial. And 

because the prosecutor refused to proceed after the court’s adjournment ruling, the court 

subsequently dismissed the case with prejudice. None of these rulings constituted an abuse of 

the trial court’s discretion. We affirm.

I

In November 2017, the prosecution charged defendant Brian Edward Borowka, Jr., with 

first and second-degree criminal sexual conduct—MCL 750.520b(1)(a), MCL 750.520b(2)(b), 

MCL 750.520c(1)(a), MCL 750.520c(2)(b)—arising from sexual acts allegedly committed 

against his then nine-year-old daughter. Borowka waived a preliminary examination. The 

district court initially set his bond at $500,000. Borowka posted 10% of that amount, for which 

he paid a $12,000 bondsman’s fee.
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In advance of the June 18, 2018 trial date, the prosecution filed a notice of intent to 

introduce expert testimony and similar acts evidence under MRE 404(b). During a June 13

hearing, the parties agreed that the expert’s testimony would be limited to certain areas of 

inquiry. But counsel clashed about whether the prosecution could establish the prerequisites for 

admission of the 404(b) evidence. The prosecutor represented that the proposed witness, BQ, 

had been sexually assaulted by the Borowka 17 years previously, under circumstances similar to 

those alleged in the current case. The defense asserted that the “transactions aren’t similar” and 

asked for an offer of proof. Defense counsel stressed, “I’m prepared to try the case on Monday 

[June 18]. I’d prefer to get it rolling[.]”

The trial court issued a written opinion and order the next day, finding that “the current 

record is insufficient to make a ruling on admissibility.” The court elaborated:

In this case, the Court has relatively little information regarding the 

specific allegations related to [the victim] or the prior incident involving [BQ]. 

The attorneys have made differing characterizations regarding the incidents, 

including similarities and differences, but the limited record does not allow the 

Court to sort through the different allegations to make an informed ruling 

regarding admissibility. Additionally, many of the arguments so far appear to 

conflate the analysis under MCL 768.27a and MRE 404(b), despite the critical 

differences and important distinctions that must be made.

Accordingly, the Court finds the current record is not sufficient to make a 

ruling regarding admissibility of evidence of the alleged prior acts. It is proper to 

hold an evidentiary hearing outside of the presence of the jury to allow the 

development of the record to address the other-acts evidence. At the hearing, it is 

expected that the prosecution will at least present testimony from [BQ], but the 

Court is willing to consider other testimony and evidence from the prosecution or 

the defense if relevant to the issues in making an admissibility determination. . . .

The court scheduled the evidentiary hearing for July 27 and adjourned the trial until 

September 17.1 On or before July 27 hearing, the prosecutor advised the court that BQ was on a 

“mission trip” in Hawaii and unable to attend. The court reiterated that an evidentiary hearing 

would be held to consider the admissibility of the 404(b) evidence before BQ would be permitted 

to testify.

The prosecution lost touch with BQ and informed the court of this problem on September 

13. At the prosecutor’s request, the trial court signed a material witness warrant that day. When 

the parties appeared for trial on September 17, the prosecutor revealed that BQ’s whereabouts 

remained unknown, and requested an adjournment. A lengthy hearing ensued. 

 1 The court’s initial order set the trial for September 24, 2018. Counsel agreed to the September 

17 date.
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The court prefaced its adjournment ruling by noting that the scheduling guidelines 

required a trial within 301 days of the bindover and that the time would expire on September 24. 

The first adjournment was at the prosecutor’s request, the court recalled, despite that the defense

was “very desirous of going forward[.]” The court acknowledged that “guidelines are just that,”

but expressed its own preference that the case be tried within them. The September trial date 

was an acceptable compromise: “So the way I looked at it, I was giving the prosecution what 

they wanted, delaying the actual trial to a later time, over the objection of the defense.”

On the morning of trial, the prosecution informed the court that BQ could not be found, 

and proposed an adjournment. The court recapitulated that “[t]he defense objected to that 

adjournment. . . . The Court indicated that I did not feel under the circumstances here that an 

adjournment was warranted.” In the court’s view, BQ was merely a potential similar-acts 

witness and could offer no direct evidence relevant to the case.

The prosecutor advised that she had lost contact with BQ in July, and believed that her 

testimony would be “relevant and admissible.” If an adjournment was not granted, the 

prosecutor warned, she “would be filing a nolle and request that it be dismissed without 

prejudice until we find [BQ] and bring her before the Court.” Defense counsel strongly objected 

to an adjournment and contended that a “nolle without prejudice . . . would be fundamentally 

unfair to my client.” Borowka had incurred legal and detective fees and the cost of the bond, 

counsel insisted, and the defense stood ready to try the case. He highlighted, “My client’s life 

has been placed on hold. He has a job now, but there’s a lot of stress on him with these 

allegations in the background. . . . This is . . . an extremely stressful ordeal and we’re here, we’re 

ready to go[.]”

The court confirmed that the defense had consistently sought trial and that the 

prosecution was responsible for the delays. The court then formally denied an adjournment:

I’ve been on the bench for pushing 30 years, and this is not a common occurrence, 

I would agree with that.

In considering it, I’ve indicated a lot of the concerns, the delays, the desire 

of the defense to push forward. They’ve never, the defense has never tried to 

delay the trial, that I can remember. They always wanted to go forward, and the 

Court has granted the prosecution the delays up until today. And I was willing, 

certainly, to . . . try to accommodate the 404(b) witness from where she was. 

There was even discussion about prosecutor paying, suggested wanted her to pay 

for her to bring in, Hawaii isn’t that far away, but I guess there are whatever 

communications problems there may have been between the two of them. But 

that having been said, . . . I don’t treat lightly the allegations here. Clearly, if 

these things happen, you have a child at the time, still a child, I guess, who is the 

victim, and the trauma involved in this thing is such that, you know, they’re 

entitled to get justice, as the prosecutor says, and I’m cognizant of that and aware 

of that.

I’m also cognizant of the fact that defendants have their right to get justice 

as well. While it’s an important case to the victim, if the defense were to lose and 
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be found guilty on Count I here, he would be subject to a prison term where he 

could get up to life in prison or any term of years, but he would be required to 

serve at least 25 years before being eligible for parole. This is not a minor matter, 

so as much impact as it might have on the victim or victim’s family or whatever, 

there’s also a considerable impact it would have potentially on defendant and 

defendant’s family, depending on how the case was ultimately resolved.

So the bottom line here is that the Court believes, for all the reasons 

indicated earlier, that I’m simply unwilling under the circumstances to grant the 

adjournment. I’m of the opinion that the case could go forward today. We are 

talking about a 404(b) witness. We’re not talking about someone who observed 

any of the acts that occurred, as alleged. Simply, she could come in and talk 

about what may have happened to her in the past. The jury could evaluate that, I 

guess, if I were to allow it in, and even that hasn’t been determined yet, because I 

haven’t been able to have the hearing. But the bottom line is there’s no reason 

that the prosecutor can’t present the case, as is often times done when you have a 

child witness, even with a child witness where that child witness gives testimony.

In this particular instance I understand the victim is 13 years of age now

and was alleged to have been nine at the time of the incidents that are alleged. So 

certainly that witness, or any other witness that might be available to the 

prosecution, could come in and testify about the facts and what happened, and the 

jury could determine that. The 404(b) evidence, if it were to be allowed in, would 

simply be, for lack of a better word, icing on the cake. It’s not a required witness 

to present the case and get a decision from the jury.

So respectfully, . . . for all the reasons indicated, I’m simply unwilling to 

grant an adjournment today.

The court then inquired of the prosecutor, “Do you wish to present - - do you wish to go 

forward with the trial today . . . ? The prosecutor replied, “No, your Honor. At this time, your 

Honor, the People would be filing a dismissal or a nolle pross and requesting that the Court sign 

that and dismiss the matter without prejudice pending us finding [BQ], and we will immediately 

reissue the charge.” Defense counsel protested, complaining that his client would be forced to 

post another bond or be incarcerated. Counsel expressed, “[W]e believe it’s appropriate to 

dismiss this with prejudice because the prosecution hasn’t exercised due diligence, and they 

could go forward today.”

The court denied the motion for an adjournment and the motion for a nolle prosequi, 

reserving the question of whether dismissal would be with or without prejudice, explaining, “I’m 

simply denying the adjournment and denying the request for a nolle pross. It would be my intent 

that if the prosecution wanted to prosecute this case, they would go forward today.” 

BQ was located the next day. 

The prosecution then filed a motion seeking a nolle prosequi. The court refused to sign 

it, and set the matter for a hearing. At the hearing, the prosecution urged that its decision to 
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refrain from going forward with the trial was a legitimate exercise of prosecutorial discretion. 

And according to the prosecutor, unless the nolle prosequi would be “unconstitutional, illegal, or 

ultra vires,” the court was bound to approve it. “[D]eciding which witnesses to proceed with or 

not proceed with,” the prosecutor continued, “is not an unconstitutional act . . . . It’s not illegal 

or ultra vires,” and therefore the court would abuse its discretion by refusing to sign the nolle 

prosequi order.

The court re-emphasized its belief that the “prosecutor could have proceeded,” and that 

its decision to deny an adjournment was motivated by a desire to do justice on behalf of both 

sides. In a written opinion that followed the hearing, the court further described the rationales 

for its trio of decisions as follows:

[W]hile the Court has no supervisory authority over the prosecution, it 

does have authority over its docket and in enforcement of the law and the court 

rules. Requirements for adjournments due to the absence of a witness or evidence 

are found in MCR 2.503(C). Under this rule, “[a] motion to adjourn a proceeding 

because of the unavailability of a witness or evidence must be made as soon as 

possible after ascertaining the facts. MCR 2.503(C)(1). Additionally, “[a]n 

adjournment may be granted on the ground of unavailability of a witness or 

evidence only if the court finds that the evidence is material and that diligent 

efforts have been made to produce the witness or evidence.” MCR 2.503(C)(2). 

The Court of Appeals has also held that “[t]he power in a criminal case to grant or 

deny a continuance is within the sound discretion of the trial court.” People v 

Dowell, 199 Mich App 554, 555[; 502 NW2d 757] (1993).

In this case, the Court found adjournment was not proper. There was no 

showing that [BQ]’s testimony was material when it was not even clear if it was 

admissible at all. Additionally, the issue with the witness could have been 

brought to the Court’s attention sooner and the Court was not convinced that the 

prosecution took all of the proper available measures to ensure the witness was 

available at trial. For these reasons, along with others stated on the record, the 

Court denied the request for an adjournment.

The prosecutor’s subsequent motion for nolle prosequi was not made 

because of any desire to discontinue or abandon the case. Rather, it was only 

made because of the denial of the motion to adjourn. That is, the motion for nolle 

prosequi was an admitted attempt to delay trial because the prosecution preferred 

to go to trial with a witness it had failed to secure and hoped that the witness 

could be available by the time the case made its way back through the system. It 

should also be noted that, unlike an adjournment, this method of delaying trial 

would have required defendant to post bond again and incur bond-related fees 

after refiling of the case.

In these circumstances, the denial of the motion for nolle prosequi was not

an interference with the prosecution’s discretion. Rather, it was a rejection of the 

prosecution’s attempt to unilaterally control the scheduling of court proceedings. 

Adjournments of the sort requested by the prosecution are controlled by MCR 
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2.503(C), and the prosecution did not show and still has not shown that an order 

of nolle prosequi can be used as a way to get around a ruling denying an 

adjournment.

For those reasons, the Court stands by its decisions to deny the motions of 

the prosecution. Furthermore, because the prosecution then refused to proceed 

and failed to present any evidence on the day of trial despite the Court’s rulings, 

this case must be dismissed with prejudice. The Court understands the 

seriousness of this case and does not take any of these decisions lightly. 

However, the Court had made its decisions for reasons that were explained. 

Respectfully, it was not proper to refuse to proceed with this case on the 

scheduled day of trial because of disagreement with those decisions. Dismissal 

with prejudice is the only appropriate remedy. 

The prosecution now appeals.

II

Three rulings are now at issue: the denial of an adjournment, the denial of a motion for 

nolle prosequi, and the dismissal with prejudice. We address each in turn.

A

We review a trial court’s adjournment ruling for an abuse of discretion. People v 

Jackson, 467 Mich 272, 276; 650 NW2d 665 (2002); MCL 768.2. A court abuses its discretion 

when its decision falls outside the range of principled outcomes. People v Musser, 494 Mich 

337, 348; 835 NW2d 319 (2013).

A motion for an adjournment or continuance must rest on good cause. MCR 2.503(B)(1); 

Jackson, 467 Mich at 276. MCR 2.503(C) governs a motion to adjourn arising from the 

unavailability of a witness:

(1) A motion to adjourn a proceeding because of the unavailability of a witness or 

evidence must be made as soon as possible after ascertaining the facts.

(2) An adjournment may be granted on the ground of unavailability of a witness 

or evidence only if the court finds that the evidence is material and that diligent 

efforts have been made to produce the witness or evidence.

(3) If the testimony or the evidence would be admissible in the proceeding, and 

the adverse party stipulates in writing or on the record that it is to be considered as 

actually given in the proceeding, there may be no adjournment unless the court 

deems an adjournment necessary.
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The trial court determined that the prosecution had not exercised due diligence in locating 

BQ and arranging for her testimony at an evidentiary hearing; without the hearing, the 

admissibility of her testimony remained unknown. And because the prosecution could present 

the testimony of the complaining witness, the trial court observed, BQ’s testimony was not

“required.”

The trial court did not abuse its discretion in making this determination. The prosecutor 

had named more than a dozen witnesses, including an expert, in support of its case. The 

prosecutor knew that BQ was missing well before the trial date, but did not seek an adjournment

“as soon as possible after ascertaining the facts.” MCR 2.503(C)(1). Instead the prosecution 

waited until the day of the trial to make its request, creating scheduling difficulties for the court 

and inconveniencing the defense, which had subpoenaed witnesses. Moreover, the record fails to 

establish that BQ’s testimony was material to the case, as it had not been evaluated for relevance 

or prejudice. We find no abuse of discretion in the trial court’s denial of an adjournment.

B

We turn next to the trial court’s decision to deny a nolle prosequi order. In relevant part, 

MCL 767.29 provides:

A prosecuting attorney shall not enter a nolle prosequi upon an indictment, 

or discontinue or abandon the indictment, without stating on the record the 

reasons for the discontinuance or abandonment and without the leave of the court 

having jurisdiction to try the offense charged, entered in its minutes.

This statute provides that the prosecutor must state on the record the reasons for seeking a nolle 

prosequi order and must also obtain leave of the court. People v Glass (After Remand), 464 

Mich 266, 278; 627 NW2d 261 (2001). 

In deciding whether a prosecuting attorney acted properly in proposing to nolle prosequi, 

discontinue, or abandon a prosecution, the circuit judge must review the prosecutor’s statement 

of reasons and the evidence filed in the case. Genesee Co Prosecutor v Genesee Circuit Judge, 

391 Mich 115, 121; 215 NW2d 145 (1974). “Such review is a judicial review, searching the 

record to determine whether . . . the prosecutor’s decision is in accord with the law, facts and 

reason of the matter.” Id. A trial court may not substitute its judgment for that of the 

prosecuting attorney as if it were acting in a supervisory capacity. Id. We review the trial 

court’s decision for an abuse of discretion. See People v McCartney, 72 Mich App 580, 589; 

250 NW2d 135 (1976).

The prosecutor contends that the separation-of-powers doctrine shields a nolle prosequi

decision from judicial veto unless entering the order would be unconstitutional, illegal, or ultra 

vires. We agree that entering a nolle prosequi ordinarily falls within the prosecutor’s broad and 

independent discretion. But as the prosecutor concedes, its powers are not absolute. A nolle 

prosequi that violates the Constitution, constitutes an illegal act, or exceeds the prosecutor’s 

authority should not be approved by the court. 

The prosecutor lacked the authority to unilaterally derail defendant’s trial after the court 

denied her request for an adjournment. The prosecutor’s refusal to proceed with proofs was ultra 
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vires: beyond the prosecution’s legal powers. Our Supreme Court has observed that “[e]ach 

branch of government has inherent power to preserve its constitutional authority.” Employees & 

Judge of Second Judicial Dist Court, Second Div v Hillsdale Co, 423 Mich 705, 717; 378 NW2d 

744 (1985). The Court emphasized that “an indispensable ingredient of the concept of coequal 

branches of government is that ‘each branch must recognize and respect the limits on its own 

authority and the boundaries of the authority delegated to the other branches.’ ” Id., quoting 

United States v Will, 449 US 200, 228; 101 S Ct 471; 66 L Ed 2d 392 (1980). Judicial authority 

inherently encompasses a trial court’s control of its docket and the management of its courtroom. 

The prosecutor’s objection to going forward with proofs did not empower her to step into the 

shoes of a judicial branch officer. Under the circumstances presented, the prosecutor lacked the 

legal authority to decline the court’s invitation to proceed.

In Genesee Co Prosecutor, 391 Mich at 121, the Supreme Court observed that a circuit 

court “may reverse or revise [a prosecuting attorney’s] decisions only if it appears on the record 

that they have abused the power confided to them.” The Supreme Court found such an abuse in 

Reagan, 395 Mich 306. In Reagan, the Supreme Court held that a nolle prosequi was 

improperly granted by the circuit court because the prosecution exceeded its powers by 

exercising bad faith in seeking it. 

Reagan arose from a deal between the prosecution and the defense that if the defendant 

passed a polygraph, the charges would be dismissed. Id. at 309-310. The defendant passed. 

Nevertheless, the prosecution submitted an order for nolle prosequi to the circuit court without 

advising the court of “the purportedly binding agreement of the prosecutor and defendant.” Id. at 

317. The defendant was tried and convicted. The Supreme Court reversed, holding that the 

prosecutor was bound by its agreement and that the defendant was prejudiced by the 

proceedings. The Court reasoned,

The nature of the agreement should have been stated by the prosecutor on the 

record before the trial court. The trial court, in considering the prosecutor’s 

request to nolle prosequi, should have exercised informed discretion in deciding 

whether the prosecution acted within its authority in seeking entry of an order of 

nolle prosequi. [Id. at 318.]

Reagan counsels that a trial court does not abuse its discretion in denying a nolle prosequi

motion when it determines that a dismissal would fall outside the realm of properly exercised 

prosecutorial discretion2

 2 A governmental employee’s entitlement to the protection of governmental immunity under 

MCL 691.1407(5) depends in part on whether the employee’s acts are considered ultra vires. In 

that context, good faith is an essential element. See Petipren v Jaskowski, 494 Mich 190, 203; 

833 NW2d 247 (2013). Analogously, good faith is one component of an act entitled to respect

and deference as falling within a prosecutor’s constitutional authority.
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We draw additional support for this conclusion from federal caselaw interpreting FR

Crim P 48(a). Like MCL 767.29, FR Crim P 48(a) requires leave of court before dismissal of an 

action: “The government may, with leave of court, dismiss an indictment, information, or 

complaint. The government may not dismiss the prosecution during trial without the defendant’s 

consent.” The United States Supreme Court has observed that the “principal object” of the 

leave-of-court requirement “is apparently to protect a defendant against prosecutorial 

harassment, e.g., charging, dismissing and recharging, when the Government moves to dismiss 

an indictment over the defendant’s objection.” Rinaldi v United States, 434 US 22, 30 n 15; 98 S 

Ct 81; 54 L Ed 2d 2017 (1977). “[T]he Rule has also been held to permit the court to deny a 

Government dismissal motion to which the defendant has consented if the motion is prompted by 

considerations clearly contrary to the public interest.” Id. See also United States v Smith, 55 F3d 

157, 159 (CA 4, 1995) (“The disposition of a government’s motion to dismiss an indictment 

should be decided by determining whether the prosecutor acted in good faith at the time he 

moved for dismissal.”). 

Here, the trial court determined that the prosecutor sought a nolle prosequi order solely to 

avoid starting a scheduled trial that had previously been adjourned at the prosecutor’s request. 

Under the unique circumstances of this case, we concur that the trial court did not abuse its 

discretion in denying the nolle prosequi motion. The prosecutor’s refusal to present proofs 

undermined the court’s inherent authority to manage its docket. Moreover, the trial court 

concluded that the prosecutor acted in bad faith, as BQ’s absence did not impair the prosecutor’s 

ability to proceed with its proofs. A nolle prosequi would also prejudice the defendant, the court 

reasoned, as he would have to post another bond or face incarceration. See People v Curtis, 389 

Mich 698, 706; 209 NW2d 243 (1973) (noting that after a nolle prosequi order has been entered, 

the prosecution must “obtain a new indictment and begin proceedings anew if [it] wishe[s] to 

reinstate the original charge”).

The abuse of discretion standard presumes a range of reasonable and principled 

outcomes. The trial court’s refusal to approve a nolle prosequi falls within that range.

C

Lastly, we consider the propriety of the trial court’s decision to dismiss the prosecution 

with prejudice. “Trial courts possess the inherent authority to sanction litigants and their 

counsel, including the right to dismiss an action.” Maldonado v Ford Motor Co, 476 Mich 372, 

388; 719 NW2d 809 (2006). We review a trial court’s dismissal of a case as an exercise of this 

power, or in response to a failure to comply with its orders, for an abuse of discretion. Id.

In Maldonado, the Supreme Court observed that a court has a “fundamental interest in 

protecting its own integrity and that of the judicial process.” Id. at 389 (quotation marks and 

citation omitted). The judiciary and the executive are coordinate branches of government. “It is 

also well settled that under our form of government the Constitution confers on the judicial 

department all the authority necessary to exercise its powers as a coordinate branch of 

government.” In re 1976 PA 267, 400 Mich 660, 662-663; 255 NW2d 635 (1977). A court’s 

inherent powers are not subject to interference or diminishment by the other branches of 

government, except by constitutional authority. Id. at 663. 
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The trial court ruled that “it was not proper to refuse to proceed with this case on the 

scheduled day of trial because of disagreement with” the adjournment and nolle prosequi

decisions. This principled determination falls within the trial court’s authority and its discretion.

We affirm.

/s/ Brock A. Swartzle 

/s/ Elizabeth L. Gleicher 

/s/ Michael J. Kelly