Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED APRIL 23, 2008 PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,

v No. 133264 JULIAS HOLLEY, Defendant-Appellee.

BEFORE THE ENTIRE BENCH TAYLOR, C. J.

At issue is whether MC L 750.483a(1)(b), which pr ovides that a “person shall not . . . [p]revent or attempt to prevent through the unlawful use of physical force another person from reporting a crime committed or attempted by another person,” requires the prosecution to pr ove beyond a reasonab le doubt that someone committed or attempted to comm it the crime that was sought to be reported, in this case felonious assault, in order to secure a co nviction. Because we conclude that neither the placement of subsection 1(b) in the statutory scheme of MCL 750.483a nor the grammatical c onstruction of subsection 1(b) requiressuch proof, we reverse the judgment of the Court of Appeals that held to the contrary and reinstate d efendant’s conviction.

I. FACTS AND PROCEDURAL HISTORY
On March 7, 2005, defendant arrived at the house of his child’s mother, Peggy Gordon. Defendant had been drinki ng, and he and Gordon began to argue. After Gordon asked defendant to leave, defendant went to the kitchen and returned with a knife. While appro aching Gordon with the knife, defendant said, “I’ll hurt you.” Gordon replied, “N o you won’t.” When Gordon reached for th e telephone and told defendant that she was going to call the police, defendant grabbed the telephone and cut the telepho ne cords with the knife. Defendant then threw the knife on the stool where the telephone wa s located. Although defendant never pointed the knife directly at Gordon, she te stified that defendant was within arm’s reach of her with the knife in his hand and that she believed that he was going to hurt her. After defendant left Gord on’s home, she su mmoned the police. Defendant was charged w ith felonious assault and the offense of preventing or attempting to prevent the report of a crime. Following a bench trial, the trial court found defendant not guilty of felonious assault. Ho wever, with regard to the charge of preventing or attempting to prevent the report of a crime, the court concluded that the prosecution did not need to prove feloni ous assault beyond a reasonable doubt.

2On appeal, in a 2-1 decision, the Cour t of Appeals reversed the conviction. In analyzing MCL 750.483a(1 )(b), the Court, focusing only on the phrase “a crime committed or attempted” in isolation and not recognizing the stru cture of the entire statute or the specific criminal act pr ohibited by subsection 1(b), essentially concluded that MCL 750.483a(1)(b) requires proof be yond a reasonable doubt that a person committed or attempted to co mmit the crime sought to be reported. 1 It remanded the case with instructions to th e trial court to de termine whether an actual crime was committed or attempted. The dissenting judge would have affirmed the conviction. The prosecution applied for leave to a ppeal in this Cour t. After directing the parties to address wh ether MCL 750.48 3a(1)(b) requires proof beyond a reasonable doubt that a person committed or attempted to commit a crime, we heard oral argument on whet her to grant the application or ta ke other peremptory action, as permitted by MCR 7.302(G)(1). 2

II. STANDARD OF REVIEW Whether MCL 750.483a(1)(b) requi res proof beyond a reasonable doubt that a person committed or attempted to commit a crime is a question of statutory

1 Unpublished opinion per curiam, is sued January 25, 2007 (Docket No. 264584). 2 478 Mich 863 (2007).

3interpretation, whic h we review de novo. 3 When interpreting statutory language, a court must keep in mind the plain meani ng of the language employed, as well as its placement in the statutory scheme and the grammatical context in which it is used. 4
III. ANALYSIS The statutory scheme at issue in this case involves MCL 750.483a, which broadly criminalizes attempts to interfere with the reporting, investigating, or prosecution of crime s. MCL 750.483a(1)(a) 5 forbids, generally , the withholding of testimony, information, or documents. Next, MCL 750.483a(1)(b) 6 forbids, generally, interference with a person seeking to report a crime. MCL 750.483a(1)(c) 7 forbids, generally, retaliation against a person who reported a

3 People v Nyx, 479 Mich 112, 116; 73 4 NW2d 548 (2007). 4 People v Gillis, 474 Mich 105, 114-115 ; 712 NW2d 419 (2006). 5 MCL 750.483a(1)(a) provides that a p erson shall not “[w]ithhold or refuse to produce any testimony, information, document, or thing after the court has ordered it to be produced following a hearing.” 6 MCL 750.483a(1)(b) provides that a person shall not “[ p]revent or attempt to prevent thro ugh the unlawful use of phys ical force another person from reporting a crime committed or attempted by another person.”

7 MCL 750.483a(1)(c) provides that a person shall not [r]etaliate or attempt to retaliate against another person for having reported or attempted to report a crime committed or attempted by another person. As used in this subsection, “retaliate” means to do any of the following: ( i ) Commit or attempt to commit a crime against any person. (continued...)

4crime. The statute conti nues with MCL 750.483a(3), 8 which criminalizes the bribing, threatening, or influencing of t hose who give informa tion to the police. Finally, MCL 750.483a(5) 9 concerns tampering with and destroying evidence. As is evident, all the described offenses attempt to p revent interference, of one sort or another, with the investiga tion of a crime or the administration of justice. By including MCL 750.483a(1)(b) and it s criminalization of the interference with the report of a crime within this statutory scheme, the Legislature has made clear that its concern was to prevent interference with the report of a

(...continued) ( ii ) Threaten to kill or injure any person or threaten to cause property damage. 8 MCL 750.483a(3) provides: (3) A person shall not do any of the following: (a) Give, offer to give, or promis e anything of value to any person to influence a person’s statement to a police officer conducting a lawful investigation of a crime or the presentation of evidence to a police officer conducti ng a lawful inve stigation of a crime. (b) Threaten or intimidate any person to influence a person’s statement to a police officer conduc ting a lawful inve stigation of a crime or the presentation of evid ence to a police o fficer conducting a lawful investigation of a crime. 9 MCL 750.483a(5) provides: (5) A person shall not do any of the following: (a) Knowingly and in tentionally remove, alter, conceal, destroy, or otherwise tamper with evidence to be o ffered in a present or future official proceeding. (b) Offer evidence at an official proceeding that he or she recklessly disregards as false.

5crime and not with whether the crime being reported was actually committed or attempted.

This conclusion is harmonious with the proper construction of the statute, MCL 750.483a(1)(b), wh ich lays out the elements of the offense of preventing the reporting of a crime. As defined by the Legislature in MCL 750.483a(1)(b), the elements that the prosecution must prove beyond a reasonable doubt are (1) that a defendant prevented or atte mpted to prevent, (2) through the unlawful use of physical force, (3) someone from repor ting a crime committed or attempted by another person.

The criminal action that MCL 750.483a(1)(b) prohi bits is found in the phrase “[p]revent or attempt to prevent.” As used in the statute, the v erb “prevent” is transitive in nature, 10 which means that there must be something that is prevented or sought to be prevented. 11 In MCL 750.483a(1)( b), what is actually prevented or sought to be prevented is a report of a crime by another person and not “a crime committed or a ttempted by another person.” This is significant because a repor t will necessarily entail the subjective perception of the person who is reporting. “Report” is relevantly defined as “a

10 Random House Webster’s College Dictionary (2001). 11 Sabin, The Gregg Reference Manual, Ninth Edition (New York: Glencoe McGraw-Hill, 2001), pp 556, 561; Weinhold, The Tongue Untied, A guide to grammar, punctuation, and style <http://grammar.uoreg on.edu/verbs/ transitive.html> (accesse d December 5, 2007).

6detailed account of an event, situation, etc., [usually] base d on observation or inquiry.” 12 And “observation” is defined as “an act or instan ce of noticing or perceiving. ” 13 Therefore, although the term “percei ved” is not expr essly stated in MCL 750.483a(1)(b), it is i nherently implied by the us e of the term “report,” which is the focus of the criminal act proscribed by the statute, and it is the perception of the person reporting that “a cri me [has been] committed or attempted by another person” that is significan t, not whether the crime was actually committed or attempted. 14 Finally, defendant argues that, because the statute specifically refers to a crime “committed or attempted,” it must require proof of the actual commission or attempted commission of a crime and that any other interpretation would render this phrase superfluous. 15 This assertion cannot be correct because although

12 Random House Webster’s College Dictionary (2001). 13 Id. (emphasis added). 14 Although the dissent accu ses the majority of reading words into the statute, the dissenting justi ce cannot challenge the unmist akable fact that the verb “prevent” is transitiv e in nature and that it focuses on the action of reporting. And she cannot meaningfully challenge the meaning of th e term “report.” Nor has she explained why the langua ge “committed or attempte d” is included in MCL 750.483a(1)(b) when the word “crime,” by itself, implic ates a completed act. See MCL 750.5 (“‘Crime’ means an act or omissi on forbidden by law . . . .”). Instead, the dissenting justice adds her own word s to the construction of the statute by adding an additional verb: “crime . . . was committed or attempted.” It is only through this unwarranted addition that the di ssenting justice is able to effectively create the additional elemen t that she would like the prosecution to prove. 15 To support this argument, defendant relies on this Court’s interpretation in People v Burgess, 419 Mich 305; 353 NW2d 444 (1984), of a phrase found in (continued...)

7defendant here was the one who was accu sed of committing the crime that was being reported, the statute does not require that the person accused of interfering with the report of a crime be the person who also committed the crime being reported. Rather, the statute’s plai n language criminalizes preventing or attempting to prev ent the reporting of “a crime committed or attempted by another

person. ” The statute does not st ate that it criminalizes preventing or attempting to prevent the reporting of a cri me committed or attempted by the person who is preventing the reporting . This distinction is signi ficant because whether another

(...continued) the felony-firearm statute, MCL 750.227b. The current version of the phrase is: “[a] person who carries or has in his or her possession a firear m when he or she commits or attempts to commit a felony.” Apparen tly defendant’s argument is fairly effective, because it convi nced not only the Court of Appeals majority but also the dissenting justice in this Court. It is fallacious to conclude as the dissent does that Burgess has any relevance to the interpret ation of the statute before us, MCL 750.483a(1)(b), for sev eral reasons. First, to reach such a conclusion, we would have to assume that the Legislat ure, in enacting MC L 450.483a(1)(b), was aware of this Court’s judicial constructi on of MCL 750.227b, an entirely unrelated statute. Such an assumption would impose on the Legislature the unreasonable burden of keep ing abreast of all judicial pronouncements involving the construction of all statutes, even those th at are unrelated. Cf. People v Hawkins, 468 Mich 488, 509 n 20; 668 NW2d 602 (2003). Second, the context in which the words “commits or attempts” are used in the felony-firearm statute, specifically in conjunction with the term “when,” makes it clear that a defendant must actually be committing the underlying felony at the ti me he or she possesses the firearm; as previously discussed, the context in which “committed or attempted” is used in MCL 450.483a(1)(b) does not require a sim ilar conclusion. Third, the felony

firearm statute requires that the person who possessed the fi rearm also be the person who committed or attempted to co mmit the crime; as will be discussed, MCL 450.483a(1)(b) does not require that the p erson who interfered with the report of a crime also be the person wh o committed or attempted to commit the crime being or sought to be reported, and the culpability of the person who interfered with the report cannot hinge on the guilt of another person.

8person—who is not on tria l for the offense of interfering with the report of a crime—committed or attempted to commi t the crime being or sought to be reported is irrelevant to whet her the person who is on trial for interfering with the report of a crime has actually interfered or attempted to interfere with the report of a crime. For example, if person A commits a crime, and person B tries to report the crime, but person C prev ents person B from making the report, whether person C is guilty of interfering with the report has nothing to do with whether the prosecution can prove beyond a reasona ble doubt that p erson A committed the crime being reported. In other words, the culpability of the person accused of interfering with the report of a crime cannot hinge on the guilt of another person. Contrary to defendant’s argument, th e phrase “committed or attempted” is necessary to establish that the reporter need not be attempting to report an accomplished crime; interference with the report of an attempted crime is enough. The statute would not achie ve its purpose if it merely referred to a report of “a crime” because this implies a complete d crime. It therefore follows that the prosecution is not required to prove beyond a reasona ble doubt that the crime being reported was committed or attempted.

IV. CONCLUSION In sum, we conclude that the pros ecution is not require d to prove beyond a reasonable doubt that the crime sought to be reported was attempted or committed by another person in order to obtai n a conviction und er MCL 750.483a(1)(b)

9because the placement of § 483a(1)(b) in the st atutory scheme and the grammatical context in which the phrase “cri me committed or attempted” is used do not require such an interpretation, and the plain language of the statute can be interpreted to reach a result that is consistent with the statutory scheme. Accordingly, we reverse the judgment of the Court of A ppeals that held otherwise and reinstate defendant’s conviction.

Reversed.

Clifford W. Taylor Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr.

10v S T A T E O F M I C H I G A N SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
No. 133264 JULIAS HOLLEY, Defendant-Appellee.

KELLY, J. ( dissenting ). After a bench trial, defendant was conv icted of interfering with the report of a crime. 1 The Court of Appeals reversed th e conviction. Now the majority reinstates it, and I dissent from that d ecision. Prosecutors are still required to prove each element of a crime beyond a reasonable doubt. Because it is not clear that the third element of the crime was pr oved in this case, th e judgment of the Court of Appeals should stand.
T HE F ACTS The alleged facts are as follows. D efendant and the complainant, Peggy Gordon, had a child together. On March 7, 2005, d efendant arrived at Gordon’s home. An argument ensued. At one point in the argument, defendant retrieved a knife from the kitchen and told Gordon that he was going to hurt her. Gordon told

1 MCL 750.483a(1)(b).him, “No you won’t.” As Gordon moved to pick up the phone to call the police, defendant cut the telephone cord. He then stated, “That’s not me,” put down the knife, and left the home. Gordon subs tituted a different phone cord and called the police. Defendant was arrested and charged w ith assault with a dangerous weapon and interfering with the report of a crime. He opted for a benc h trial before Judge Thomas E. Jackson of the Wayne Circuit Court. Judge Jack son found that the prosecution had not met its burden to prove assault with a dangerous weapon, and he acquitted defendant of this charge. On the charge of interfering with the report of a crime, the judge entered a provisional verdict of guilty. But he asked the parties to address whether the statute prohibiting int erference with the report of a crime requires that a crime actually had been committed or attempted. Specifically, the judge stated: [I]f, in fact, [Gordon] only ha s to perceive a crime being committed and that is in her mind . . . if, it’s enough that she perceived it, then that's enough for that ch arge to stand. If, in fact, it has to be an actual crime for that particular one to stand, then I would find that that doesn’t stand. After considering the parties’ ar guments, Judge Jackson accepted the prosecution’s position that the statute requires only that the person reporting the crime perceive that a crime had been co mmitted or attempted. Relying on this interpretation, he found d efendant guilty of interfering w ith the report of a crime.

2On appeal, the Court of Appeals revers ed defendant’s conviction in a split, unpublished opinion. 2 The majority held that the offense of interfering with the report of a crime does not require the defe ndant to have been convicted of the underlying crime. But it does requi re the prosecution to prove beyond a reasonable doubt that a crime had been committed or attempted. Because the trial judge thought that the co mplainant’s perception that a crime had been committed or attempted was sufficient to convict , the majority rev ersed defendant’s conviction and remanded the case. Judge Schuette dissented. Following the Court of Appeals deci sion, the prosecution applied for leave to appeal in this Court. We heard argum ent on the applicati on to consider whether MCL 750.483a(1)(b) requires proof beyond a reason able doubt that a person committed or attempte d to commit a crime. 3
A DEQUATE P ROOF OF THE T HIRD E LEMENT M AY B E L ACKING The most basic rule of criminal proc edure is that a defendant cannot be convicted of a crime unless the prosecutio n has proved each element of it beyond a reasonable doubt. 4 The issue in this case is whether the offen se of interfering with

2 Unpublished opinion per curiam, is sued January 25, 2007 (Docket No. 264584). 3 478 Mich 863 (2007). 4 See, e.g., In re Winship , 397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970) (“Lest there remain any doubt ab out the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against convic tion except upon proof beyo nd a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”); People v (continued...)

3the report of a crime requires the pros ecution to prove that another person committed or attempte d to commit a crime. MCL 750.483a(1)(b) provides: (1) A person shall not do any of the following: * * * (b) Prevent or attemp t to prevent through the unlawful use of physical force another person from reporting a crime committed or attempted by another person. Under the statutory definition of this crime, the prosecution must prove the following facts beyond a reasonable doubt in order to s ecure a conviction: (1) the defendant used unlawful physical force, (2) the unlawful phy sical force prevented or attempted to prevent another person from reporting a crime, and (3) the crime sought to be reported was committe d or attempted by another person. 5 It follows,

(...continued) Bearss , 463 Mich 623, 629; 625 NW2d 10 (2001) (“To gether, the Sixth and Fourteenth Amendments ‘i ndisputably entitle a crimina l defendant to “a jury determination that [he] is guilty of every element of th e crime with which he is charged, beyond a reasonable doubt.”’”) (citations omitted). 5 The majority claims that my construc tion adds a word to the third element of the statute. It is true that I use the word “was.” Ho wever, I use the word for the sake of clarity, not to alter the meani ng of the statutory language. This is illustrated by the fact that I can omit the word and reach the same result. There is another way to phrase the elem ents of the crime that doe s not use the word “was”: (1) the defendant used unlawfu l physical force (2) to prev ent or attemp t to prevent another person from reporting a crime (3 ) committed or attempted by another person. Under this rephras ing of the elements, the pr osecution still must prove beyond a reasonable doubt that another person committed or attempted to commit the crime sought to be reported. The majority also claims that my interpretation do es not give effect to the phrase “committed or attempted.” I disagree. This language is included to make (continued...)

4therefore, that a defendant cannot be conv icted of interfering with the report of a crime unless the prosecution proves beyo nd a reasonable doubt the third element of that crime: (a) that another person so ught to report a crim e and (b) that the crime had been committed or attempted by another person. 6 Here, the finder of fact, the trial ju dge, assumed that the statute requires only that the person seeki ng to report a crime perceived that a crime had been committed or attempted. Because this is an incorrect interpreta tion of the statute, defendant’s conviction cannot stand. Acco rdingly, I would affirm the judgment of the Court of Appeals that reversed defenda nt’s conviction. Th e Court of Appeals was correct in remanding the case to the tria l court. That court should consider whether the prosecution prov ed beyond a reasonable doubt that defendant or another person committed or attempted to commit th e crime sought to be reported. 7

(...continued) clear that one violates th e provision by interfering with the reporting of a committed crime or an attempted crime . My interpretation recognizes this fact. 6 The statute specifies “a crime committ ed or attempted by another person.” It does not require that defenda nt or another pers on be convicted of the underlying crime. Therefore, the prosecu tion need prove beyond a reasonable doubt only that the crime sought to be reported was committe d or attempted by another person. It need not prove that defendant or anot her person was convict ed of the underlying crime. 7 In making this determination, th e trial court normally would consider whether the behavior of defendant that prompted the alleged victim to call the police constituted a crime. But the judge wa s the trier of fact here. And a judge, unlike a jury, is not allowe d to reach inconsistent verd icts. Hence, the judge cannot find defendant guilty of interfering with the re port of a crime using the (continued...)

5The majority concludes that the prosecu tion need not prove that an actual crime was committed or attempted becaus e “[i]n MCL 750.483a(1)(b), what is actually being prevented or sought to be prevented is a re port of a crime by another person and not ‘a crime committe d or attempted by another person.’” 8 It is accurate to state that the statute prohib its preventing or atte mpting to prevent another person from reporting a crime. However, the statut e also requires that the crime sought to be reported was committed or attempted by another p erson. If any one of the statutory requirements is not satisfied, there can be no conviction. Thus, if no crime has been committed or a ttempted by another person, the statute cannot be violated. It is that simple.

T HE M AJORITY ’ S E RROR The glaring weakness in th e majority’s interpretation is that, in order to justify its conclusion, it reads language into the statute. The majority essentially interprets the statute as providing that a person is guilty of interfering with the report of a crime if the person “prevents or attempts to prevent through the unlawful use of physical force anot her person from reporting a crime that the reporter perceives to have been committed or attempted by another person.”

(...continued) crime of assault with a da ngerous weapon as the underl ying crime. The judge has already acquitted defendant of that charge. See People v Ellis, 468 Mich 25, 26; 658 NW2d 142 (2003). The judge could c onsider, however, whether defendant committed a crime that is a lesser-include d offense of assau lt with a dangerous weapon.

6Contrary to the majority’s interpretation, the st atute does not prohibit preventing or attemptin g to prevent anoth er from reporting a “perceived” crime, or a “possible” crime, or an “alle ged” crime. It prohibits preventing or attempting to prevent another person “from reporting a crime committed or attempted by another person.” The major ity’s opinion is defective b ecause it fails to read the statute as it is actually written. 9 Holding that the prosecution must prove beyond a reasonabl e doubt that the crime sought to be reported was committed or attempte d by another person is consistent with this Court’s decision in People v Burgess

. 10 In Burgess , the defendant’s underlying conviction of fel onious assault had been reversed. The issue was whether, in light of the reversal, his convi ction for the offense of possessing a firearm during the commi ssion of a felony could stand.

(...continued) 8 Ante at 6. 9 It is possible that some may find the majority opinion compelling because of the facts alleged and the verdict of not guilty of assau lt with a dangerous weapon. As alleged, the facts could well have supporte d a guilty verd ict for this charge. But that is not the issue befo re this Court. Rather, our task is limited to ascertaining the elements of interfering wi th the report of a crime and deciding whether the prosecution proved those elements beyond a reasonable doubt. As I have demonstrated, a remand is required. It is not clear that the prosecution satisfied its burden, given th e trial court’s verdict of not guilty of the crime of assault with a dangerous weapon. 10 People v Burgess, 419 Mich 305; 35 3 NW2d 444 (1984).

7At the time, the felony-firearm statute 11 provided in rel evant part: “(1) A person who carries or has in his possessi on a firearm at the time he commits or attempts to commit a felony, except the violation of sec tion 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years.” The Burgess Court held that an element of felony-firearm was that a defendant committed or a ttempted to commit a felony. 12 The language used in the felony-firearm statute and th e language used in the statute prohibiting interference with the report of a crime are similar. The felony- firearm statute prohibits a person from carrying a firearm when he or she “commits or attempts to commit a felony . . . .” The statute prohibiti ng interference with the report of a crime prohibits an individual from preventing or attempting to prevent another person from reporting “a crime committed or attempted . . . .” The Burgess Court concluded that the felony-firearm statue requires proof beyond a reasonable doubt th at a defendant committed or attempted to commit a felony. This logic supports holding th at the statute und er consideration here requires proof beyond a reasonable doubt that the crim e sought to be reported was committed or attempte d by another person. 13

11 MCL 750.227b. 12 Burgess, 419 Mich at 310. 13 Contrary to the implications of the majority opinion, I do not claim that Burgess is controlling. The language of the statute at issue is controlling. My interpretation is consistent with that language. The majority ’s is not. While Burgess is not controlling, I be lieve that it is relevant to highli ght a weakness in (continued...)

8C ONCLUSION The statute prohibiting interference with the report of a crime prohibits a person from unlawfully using physical force to prevent or attempt to prevent “another person from reporting a crime committed or attempted by another person.” It necessarily follows that, if no crime has been committed or attempted by another person, a defendant cannot be convicted under th is statute. Because the majority opinion holds to the contrary, I dissent.

Marilyn Kelly Michael F. Cavanagh Stephen J. Markman

(...continued) the majority’s position. My interpretation is consistent with decisions of this Court interpreting similar language , whereas the majority’s is not. The majority argues that we should not assume that the Legislature was aware of the interpretation that the Burgess Court gave the felony-firearm statute when it enacted the instant st atute. But I do not need to make such an assumption to find Burgess relevant. Even if the majority were correct that we should not assume this fact, this Court is obligat ed to be aware of its own judicial construction of the similarly worded felon y-firearm statute. And the Court should take guidance from that int erpretation in this case.

9