People of Michigan v. Bryan Michael Rozengard ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 2, 2017
Plaintiff-Appellee,
v No. 331140
Bay Circuit Court
BRYAN MICHAEL ROZENGARD, LC Nos. 15-010053-FH
15-010054-FH
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and K. F. KELLY and GADOLA, JJ.
PER CURIAM.
Defendant appeals as of right his convictions following a consolidated jury trial of four
counts of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(a) (victim between
13 and 16 years old) in case 15-010053-FH, and two counts CSC-III (victim between 13 and 16
years old) in case 15-010054-FH. Defendant was sentenced to concurrent prison terms of 100
months to 15 years on all six counts. We affirm, however we remand for entry of an order
removing defendant from the sex offender registry.
Defendant, then aged nineteen, and the victim, then aged fifteen, engaged in a sexual
relationship that the victim contended was consensual; the relationship was discovered when the
victim’s mother walked in on them in the victim’s bed. Evidence collected during the
subsequent police investigation, and admitted at trial, included messages defendant and the
victim had exchanged on Facebook and by cell phone text messages. Defendant contends that he
was prejudiced by a lack of adequate notice of the charges against him, improper admission of
Facebook messages from before any of the charged offenses were alleged to have occurred, and
trial counsel’s failure to request a hearing to determine defendant’s eligibility to avoid registering
as a sex offender. In a Standard 4 brief,1 defendant also argues that he was prejudiced by the
delay between his arrest and his arraignment.
Initially, we agree with defendant that he was entitled to seek a hearing, pursuant to MCL
28.723a(1), to assert that he was not required to register as a sex offender because of the
applicability of MCL 28.722(w)(iv). The latter statute requires “that the victim consented to the
1
Supreme Court Administrative Order 2004-6.
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conduct constituting the violation, that the victim was at least 13 years of age but less than 16
years of age at the time of the offense, and that the individual is not more than 4 years older than
the victim.” All three requirements are undisputedly met here. We note that MCL 28.723a(1)
explicitly requires a hearing on the matter only if the prosecuting attorney disputes the allegation
that, inter alia, MCL 28.722(w)(iv) applies. Here, it is clear that the prosecutor does not dispute
that allegation, nor would it be reasonable in light of the evidence for the prosecutor to do so.
Although, as we previously held in our order denying defendant’s motion to remand,2 defendant
has a right to petition the trial court under MCL 28.728c(3) to discontinue his sex offender
registration, defendant should not have to do so: the outcome of such a petition is discretionary,
and defendant should never have been required to register in the first place. Therefore, we
remand to the trial court to enter an order to that effect.3
Defendant contends that he received inadequate notice of the pending charges because
the specified time period was too broad and the charges were not tied to any particularized act.
We disagree.
The Sixth and Fourteenth Amendments provide a defendant the right to adequate notice
of the charges brought against him. US Const, Ams VI and XIV; People v Darden, 230 Mich
App 597, 600; 585 NW2d 27 (1998). The right to notice “is a practical requirement that gives
effect to a defendant’s right to know and respond to the charges against him” and to prepare a
defense, People v Chapo, 283 Mich. App. 360, 364; 770 NW2d 68 (2009). However, automatic
reversal is not required if the criminal information is not perfectly drafted. Darden, 230 Mich
App at 601. Rather, a claim of inadequate notice is subject to review for prejudice. Id. at 602 n
6; see also Chapo 283 Mich. App. at 364. Because this issue was not preserved, our review is for
plain error affecting substantial rights. People v Carines, 460 Mich. 750, 764; 597 NW2d 130
(1999).
MCL 767.45(1)(b) provides that an information must contain the “time of the offense as
near as may be,” but adds that “[n]o variance as to time shall be fatal unless time is of the
essence of the offense.” The victim was 15 years old throughout the entire time period
identified. Thus, defendant would be subject to a CSC-III prosecution for having sex with her
during any part of the time period listed. The informations did specify the location of the
offenses: four at the victim’s residence, and two at defendant’s residence. In any event, “Time
is not of the essence, nor is it a material element, in criminal sexual conduct cases involving a
child victim.” People v Dobek, 274 Mich. App. 58, 83; 732 NW2d 546 (2007). The lack of
specificity as to the exact date of each offense was therefore not erroneous. In any event,
defendant does not articulate how he would have adjusted his defense had the dates been more
specific. The evidence that defendant and the victim communicated regularly and almost
exclusively about sex during the time period, and the victim’s acknowledgement that she had sex
2
People v Rozengard, unpublished order of the Court of Appeals, entered September 23, 2016
(Docket No. 331140).
3
As a consequence, we decline to consider whether defense counsel was ineffective, the question
being moot.
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with defendant “a lot,” strongly suggests that no prejudice occurred in any event and, in fact,
defendant and the victim had sex many more times than just those charged.
Defendant also argues that the jury instructions were insufficient, predicated on the same
argument pertaining to the notices. “A defendant in a criminal trial is entitled to have a properly
instructed jury consider the evidence against him or her.” Dobek, 274 Mich. App. at 82. The trial
court must instruct the jury on the applicable law, including “all the elements of the offenses
charged . . . and any material issues, defenses, and theories that are supported by the evidence.”
Id. Reversal is not required “if the instructions sufficiently protected the rights of the defendant
and fairly presented the triable issues to the jury.” Id. Because we disagree with defendant’s
notice argument, and because the jury instructions properly listed every essential element of the
charged crimes, we find no error in those instructions. Because there was no error in the notice
or jury instructions, any objection raised by trial counsel would have been futile, and trial
counsel cannot be faulted for failing to raise a futile objection. People v Putman, 309 Mich. App.
240, 247; 870 NW2d 593 (2015).
Defendant next argues that the trial court erred in allowing the prosecutor to introduce
evidence on rebuttal of Facebook messages exchanged between defendant and the victim on
April 23, 2014. We review for an abuse of discretion a trial court’s ruling on whether to admit
evidence, People v Murphy (On Remand), 282 Mich. App. 571, 578; 766 NW2d 303 (2009),
including rebuttal evidence, People v Figgures, 451 Mich. 390, 398; 547 NW2d 673 (1996). An
abuse of discretion occurs when a trial court’s decision falls outside the range of principled
outcomes. People v Babcock, 469 Mich. 247, 269; 666 NW2d 231 (2003). “A preserved trial
error in admitting or excluding evidence is not grounds for reversal unless, after an examination
of the entire cause, it affirmatively appears that it is more probable than not that the error was
outcome determinative.” People v King, 297 Mich. App. 465, 472; 824 NW2d 258 (2012).
On direct examination by the prosecutor, an investigating officer testified that multiple
Facebook conversations had occurred between the victim and defendant between June and
August of 2014 indicating a sexual relationship between them. On cross-examination, defense
counsel elicited testimony that the search warrant for defendant’s electronic messages covered a
year-long time period dating back to October of 2013. Defense counsel never provided any
suggestion of why that evidence might be relevant. Nevertheless, the trial court stated that it
believed defense counsel might have wanted to argue that no other messages suggesting such a
relationship existed outside the June and August timeframe.
“Rebuttal evidence is admissible to ‘contradict, repel, explain or disprove evidence
produced by the other party and tending directly to weaken or impeach the same.’ ” Figgures,
451 Mich. at 399, quoting People v De Lano, 318 Mich. 557, 570; 28 NW2d 909 (1947). In
exercising its discretion to admit rebuttal evidence, the trial court must “evaluate the overall
impression that might have been created by the defense proofs.” Id. at 398. Evidence is properly
classified as rebuttal if it is “responsive to evidence introduced or a theory developed by the
defendant.” Id. at 399.
Although the trial court’s reasoning is clearly speculative, we are unable to find it to be
unreasonable or outside the range of principled outcomes. We note that there is no indication
that the prosecutor had any intention of offering the evidence until defendant raised the time
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period of the search warrant on cross-examination, so there was no need for the prosecutor to
amend the information, nor was there any requirement that the prosecutor provide notice under
MRE 404(b)(2). In any event, we find it highly unlikely that defendant was unaware of his own
conversations, and the motion in limine filed before trial seeking to narrow the evidence of
Facebook messages to be admitted suggests that he was in fact aware of them. Furthermore, it
would have been cumulative of numerous other, similar messages that were properly admitted.
Consequently, even if the trial court erred, we would not find it outcome determinative.
In his Standard 4 brief, defendant finally argues that he was prejudiced by the four-month
delay between his arrest and his arraignment. Defendant was arrested the day he was discovered
in bed with the victim, on October 5, 2014. He was arraigned in district court on February 10,
2015; this was 128 days later according to the time calculation formula under MCR 1.108(1).
Defendant unclearly implies in his brief, but testimony in the trial court expressly confirms, that
his arrest was not made pursuant to a warrant, but rather because his presence with the victim
was a violation of a condition of his bond for another criminal matter that was ongoing at the
time. Police retrieved a cell phone belonging to defendant, and some other items of his property,
from the victim’s residence; defendant did not have a cell phone on his person when he was
arrested later in the day. The phone was searched pursuant to a search warrant. It appears that
the gravamen of defendant’s argument is that the evidence from the phone should be suppressed
because he was allegedly not immediately brought before a magistrate regarding the basis for his
arrest.
Pursuant to MCL 764.15(1)(g), peace officers may arrest a person without a warrant if,
inter alia, the officer “has reasonable cause to believe the person . . . has violated 1 or more
conditions of a conditional release order.” Defendant relies in part on MCL 764.15e, which
governs procedures to be followed if the condition of release was imposed under MCL 780.582a
or MCL 765.6b, neither of which is applicable here because they would involve specifically
enumerated individuals a releasee is forbidden to contact, whereas the bond condition defendant
actually violated was a blanket one “regarding contact with underaged females under the age of
18.” Defendant otherwise cites MCL 764.13, which generally requires persons arrested without
a warrant to be taken before a magistrate “without unnecessary delay.” Based on the lower court
register of actions in that other case, defendant’s bond was formally revoked, “not on the
record,” at some point prior to October 17, 2014, because he violated his bond conditions.
We do not think that the arraignment in the instant matter has anything to do with
defendant’s contentions. Apparently, he was not arrested for any of the crimes charged in the
instant matter, but rather for a bond violation in an unrelated proceeding. If, and we lack any
basis to decide, but if defendant was not afforded timely procedures following that arrest, then
perhaps he should have been released back on his bond. However, that would have no bearing
on the validity of the warrant to search his cell phone, which was confiscated from the victim’s
residence rather than defendant’s person in any event. We are simply unable to comprehend how
defendant proposes to link the seizure of evidence from his phone to any delays encountered
after his arrest on a bond violation in another matter. At most, defendant appears to contend that
suppression is necessary to deter misconduct, which is only a legally valid argument to the extent
that the evidence was derived from that misconduct. Here it was not. We are otherwise not
impressed with defendant’s argument to the extent it implies that he suffered any legal prejudice
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because there was a delay between arresting him for a bond violation in one matter and
subsequently arraigning him for another.
We affirm defendant’s convictions and sentences, however we remand for entry of an
order removing him from the sex offender registry.
/s/ Amy Ronayne Krause
/s/ Kirsten Frank Kelly
/s/ Michael F. Gadola
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