People of Michigan v. Christopher Robert Clinton ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 17, 2023
Plaintiff-Appellee,
V No. 361702
Macomb Circuit Court
CHRISTOPHER ROBERT CLINTON, LC No. 2019-001812-FH
Defendant-Appellant.
Before: O’BRIEN, P.J., and CAVANAGH and MARKEY, JJ.
PER CURIAM.
Defendant appeals as of right his bench-trial conviction of larceny by conversion of
property with a value of $1,000 or more but less than $20,000, MCL 750.362; MCL 750.356(3)(a).
We affirm.
I. BACKGROUND
The complainant, Ben Clowers, contracted with defendant to install an air-conditioning
unit, a furnace, ductwork, and gas and water lines for a residential property that Clowers owned.
The estimate for the project was $8,550, and Clowers paid a $5,500 deposit. Clowers alleged that
defendant never delivered the equipment or performed any of the agreed-upon work, and failed to
return the deposit.
The trial court held a bench trial on January 12, 2022, and February 23, 2022. Clowers
testified that he and defendant agreed that the work would begin on August 27, 2018, and conclude
on August 29, 2018. Despite Clowers and defendant exchanging frequent messages and telephone
calls, the first activity on the project was not until August 29, 2018, when defendant and his
employee installed an older air-conditioning unit in the building. Clowers testified that
defendant’s employee was at the site on August 30, 2018, but sat in his vehicle and in the building,
and did not have any equipment. Clowers stated that defendant’s assistant returned on August 31,
2018, and did not perform any of the contracted work. Clowers testified that, on September 1,
2018, defendant and his employee used a trenching machine to begin a trench for the water and
gas lines, but had to stop because of inclement weather that collapsed some of the trench. Clowers
continued that defendant’s employee resumed work on the trench the next day, but had to stop
-1-
when he broke the building’s drain tile. He then began a second trench in an area that did not need
a trench and broke the main sewer pipe.
Clowers testified that he contacted defendant on September 3, 2018, and directed him to
cancel the project because of damage to the property, defendant not showing up to work, and a
lack of honesty. Along with canceling the project, Clowers demanded either a refund or the
equipment that should have been purchased with the deposit. Clowers testified that defendant
stated that he would attempt to redeem the project, but Clowers was no longer interested.
Clowers testified that defendant arrived at the site on September 4, 2023, without the
deposit or equipment. Clowers’ two brothers and mother were present when defendant arrived.
Clowers stated that defendant promised to obtain and deliver the purchased equipment. Clowers
testified that his foot was broken at the time, so one of his brothers offered to drive with defendant
to pick up the equipment. Clowers stated that he was suspicious and followed them in his own
vehicle. Clowers testified that instead of going to get the equipment, defendant drove to a police
station, where both Clowers and defendant filed reports. Clowers testified that before leaving the
police station, defendant told him that he would return to finish the job. Clowers stated that
defendant arrived with the police the next day and collected his trenching machine, and promised
to return to reimburse Clowers.
Clowers and defendant communicated on September 7, 2018, with defendant promising to
bring the furnace and air conditioner, and again on September 10, with defendant promising to
have the furnace delivered and installed. Clowers testified that defendant never delivered or
installed a furnace, air-conditioning package, ductwork supply and return with registers, or any
portion of his deposit money. Clowers stated that defendant returned to him only two pieces of
ductwork and two plastic lines. About two weeks later, Clowers accessed the email link for the
estimate and discovered defendant had added $6,000 to the original estimate. Clowers stated that
the new estimates were for digging a trench for the electrician, replacing the main sewer, adding a
water or gas line, and a 30-gallon power vent water heater, that were not a part of the original
agreement. Clowers denied that he agreed to add any services to the original plan and asserted
that defendant had never mentioned waiting for other services to be completed before he could
work.
Defendant testified that he had been in the heating and cooling business for 20 years, and
that he contracted with Clowers on August 26, 2018, to install a furnace, air conditioner, ductwork,
and gas piping in Clowers’ building. Defendant testified that he had a “vague conversation” with
Clowers as to when the project would be completed. Defendant testified that he was ready to begin
work immediately, but Clowers’ builder had not sufficiently prepared the interior of the building.
Defendant asserted that he informed Clowers that he could not proceed without the walls in place,
and discussed a building plan with Clowers. Defendant stated that Clowers agreed to amend the
contract to include a deeper dig with more expensive equipment so that defendant could add water
piping, a water heater, and a main sewer to the gas piping. According to defendant, Clowers also
wished for him to dig a trench for the electrical. Defendant stated that the contract price increased
from $8,500 to $17,000. Defendant also referred a plumber to Clowers.
Defendant testified that he did not begin work on the project until August 29, 2018, because
of complications with his other projects. On that date, defendant and his employee installed a
temporary heating and cooling unit for the construction. Defendant also testified that he and his
-2-
employee spent an entire Saturday on the job in order to complete digging trenches for utilities.
Defendant testified that Clowers asked him how much the job was going to cost (including the
work of the plumber, electrician and builder) and defendant replied that it could be up to $50,000
to $100,000. Defendant testified that when Clowers heard this, his attitude changed and
“everything kind of just went south.” Defendant testified that Clowers informed him on September
3, 2018, that his employee had damaged a sewer pipe that the employee was supposed to remove,
and that Clowers wished to cancel the job. Defendant stated that he instructed his employee to put
the pipe back together, and told Clowers that he would return to the site on September 4, 2018, to
fix any issues. Defendant testified that he arrived on the site on September 4, 2018, where Clowers
struck him with a crutch, and Clowers’ family yelled at him to return the money, so he went to the
police. He stated that the police assisted him in recovering the excavator and his other property.
Defendant stated that he provided $6,800 of work in a temporary heating and cooling system,
digging and installing support boards for the trench, gas and water piping and ductwork supplies
on the site, building plans, and four days of his employee’s labor. Defendant stated that, because
he believed that Clowers owed him $1,000, he did not return the $5,500 down payment to Clowers.
The trial court issued an opinion and order on March 17, 2022, stating that the evidence
established that Clowers’ deposit was to be used to purchase a furnace, air-conditioning package,
ductwork supply and return with registers, and a gas line. However, Clowers did not receive this
equipment or a refund of his deposit. The trial court stated that while defendant claimed that the
deposit was used for other expenses, no evidence was presented that Clowers agreed to those
expenses, and no evidence was presented that defendant could use the deposit money as he pleased
for purposes other than what was on the original estimate. Further, the trial court found that the
text messages exchanged between Clowers and defendant indicated that Clowers continued to ask
defendant why he was not showing up to work and defendant repeatedly indicated that he would
be there. The trial court stated that defendant also promised Clowers that he would deliver the
equipment, but he never did. The trial court concluded:
the deposit provided to Defendant had value, Mr. Clowers intended to retain title to
the money until he was at least provided with the equipment, and that Defendant
converted and intended to convert the money for his own use by failing to deliver
the equipment or return the deposit despite his text messages stating that the
equipment would be delivered.
The trial court found that the prosecution had met its burden and that defendant was guilty.
Defendant now appeals.
II. SUFFICIENCY OF THE EVIDENCE
Defendant first argues that the prosecution failed to present sufficient evidence to support
his conviction for larceny by conversion. We disagree.
This Court generally reviews de novo a challenge to the sufficiency of the evidence. People
v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). However, a trial court’s findings of
fact in a bench trial are reviewed for clear error. People v Gistover, 189 Mich App 44, 46; 472
NW2d 27 (1991), citing MCR 2.613(C). “A finding is clearly erroneous if, after a review of the
-3-
entire record, the appellate court is left with a definite and firm conviction that a mistake has been
made.” Gistover, 189 Mich App at 46.
Due process requires that evidence of every element of a crime be proved beyond a
reasonable doubt in order to sustain a criminal conviction. People v Hampton, 407 Mich 354, 366;
285 NW2d 284 (1979), citing In re Winship, 397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d 368(1970). When reviewing a challenge to the sufficiency of the evidence, the evidence is viewed in
the light most favorable to the prosecution, and this Court must consider whether, based on that
evidence, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. People
v Smith-Anthony, 494 Mich 669, 676; 837 NW2d 415 (2013). Direct and circumstantial evidence,
as well as all reasonable inferences that may be drawn from it, are considered to determine whether
the evidence was sufficient to sustain the defendant’s conviction. People v Hardiman, 466 Mich
417, 429; 646 NW2d 158 (2002).
As noted, defendant was convicted of larceny by conversion of property with a value of
$1,000 or more but less than $20,000. MCL 750.362. In order to convict defendant of larceny by
conversion, the prosecution was obligated to prove the following:
(1) the property at issue must have some value [in this case, at least $1,000], (2) the
property belonged to someone other than the defendant, (3) someone delivered the
property to the defendant, irrespective of whether that delivery was by legal or
illegal means, (4) the defendant embezzled, converted to his own use, or hid the
property with the intent to embezzle or fraudulently use it, and (5) at the time the
property was embezzled, converted, or hidden, the defendant intended to defraud
or cheat the owner permanently of that property. [People v Mason, 247 Mich App
64, 72; 634 NW2d 382 (2001) (quotation marks omitted).]
“[L]arceny by conversion occurs ‘where a person obtains possession of another’s property with
lawful intent, but subsequently converts the other’s property to his own use.’ ” Id., quoting People
v Christenson, 412 Mich 81, 86; 312 NW2d 618 (1981).
On appeal, defendant challenges only the trial court’s finding that he intended to convert
the deposit money for his own use. He contends that there was insufficient evidence to support
this finding—and that, as a result, his due process rights were violated—because he used the
money that Clowers gave him to cover expenses incurred on the project. In support of this
argument, defendant directs this Court’s attention to Christenson, where our Supreme Court held
that a defendant who accepted partial payments for “work in place” could not be held liable for
conversion after he failed to use the money to pay the workers responsible for that work.
Christenson, 412 Mich at 89-90. Christenson explained that “there was no agreement that
defendant apply the specific funds he received from complainants for particular work to pay the
laborers and materialmen responsible for that work,” and because “[t]here can be . . . no
conversion of money, unless there was an obligation on the part of defendant to deliver specific
money to plaintiff,” no conversion occurred. Id. at 89-90 (quotation marks and citation omitted).
Based on Christenson, defendant argues that there was insufficient evidence to support that he
intended to convert Clowers’ money because
-4-
Mr. Clowers did not request contract language requiring that “specific funds” be
dedicated to “particular work.” Nor did the contract include the requirement of a
trust account. Certainly, there can be no doubt that title to the payment passed to
Mr. Clinton who used Mr. Clowers’ money to cover the expenses he incurred for
the job and to purchase materials for the job, like the excavator that was used by
Mr. Clinton to dig the trenches (and obviously by someone else later to fill in the
trenches).
Defendant’s argument ignores this Court’s explanation of Christenson in Mason, 247 Mich
App at 76-77:
The Supreme Court in Christenson, adopting language from People v
Bayer, 352 Mich 564; 90 NW2d 656 (1958)] to describe the circumstances under
which a court may infer that a money transfer included a transfer of legal title,
explained that it was reversing the defendant’s conviction because the homeowners
and the defendant did not have an agreement concerning “specific funds.” In other
words, had the defendant agreed to take the money the homeowners gave him only
to pay the debts at issue, then he would have been guilty of larceny by conversion
because he would have had possession of the money only for the purpose of giving
it to these creditors, but used it for other purposes. The defendant, though in actual
possession of the money, never would have obtained legal title to the money under
those facts because he could not do with it as he wished, a limitation that generally
does not exist for title owners of property.
When [this Court in People v O’Shea, 149 Mich App 268; 385 NW2d 768(1986)] revisited this “specific or identical moneys” concept first outlined in Bayer
and then continued in Christenson, it concluded that the term could not be
interpreted so narrowly that it would preclude virtually any prosecution under MCL
750.362. Acknowledging the fungible nature of money, O’Shea clarified that “[t]he
‘specific money’ language in Christenson and Bayer should be read to mean the
specific amount of money to make it identifiable as opposed to the identical
money.” In other words, the money’s original owner need not intend to have the
actual bills, coins, or negotiable instrument returned in case the transaction,
regardless of its nature, fails. Rather, the money’s original owner need only entrust
the defendant with the money expecting that the same amount be returned in case
the transaction fails in order to retain legal title to the money though relinquishing
possession. [Citations omitted, emphasis added.]
Here, there is sufficient evidence to support that Clowers entrusted defendant with the
money expecting that the same amount be returned in case the transaction failed, and thus retained
legal title to the money though relinquishing possession. Clowers and defendant testified, and a
trial exhibit showed, that there was an estimate of $8,500 for installation of a furnace, air-
conditioning system, ductwork, and an underground gas line in a three-day period, and that
Clowers paid a $5,500 deposit to defendant on August 23, 2018. According to Clowers, the work
was to be performed August 27 through August 29, 2018, but, despite repeated communications
between defendant and Clowers that defendant was expected on site, the first activity on the project
was when defendant and his employee installed a temporary air conditioner on August 29. Clowers
testified that he continued to ask defendant when he would arrive to work, but all that was
-5-
accomplished over the next two days was that defendant’s employee helped a carpenter dismantle
some concrete because he was bored. Clowers further testified that defendant and his employee
began digging a trench on September 1, 2018, that the employee continued on the next day until
the employee damaged a sewer pipe, and that defendant promised to complete the project the next
day.
There is no dispute that Clowers and defendant exchanged text messages on September 3,
2018. In those messages, Clowers told defendant to cancel the project, and to refund the money
or deliver the equipment his deposit was intended to purchase, because of damage to the property,
defendant’s not coming to work and lack of honesty. Defendant responded by saying that he would
attempt to complete the project. As noted, Clowers testified that defendant arrived at the site on
September 4, 2023, promising to obtain and deliver the equipment that had been purchased, but
instead both defendant and Clowers went to the police and filed reports. Clowers further testified
that, the following day, defendant collected his trenching machine and promised to return to
reimburse Clowers. According to Clowers, the two again communicated on September 7, 2018,
with defendant promising to bring the furnace and air conditioner, and again on September 10,
with defendant promising to have the furnace delivered and installed, but Clowers recovered only
two pieces of ductwork and two pipes.
On these facts, the trial court could reasonably find beyond a reasonable doubt that Clowers
intended to retain title to the deposit he paid to defendant until the equipment that the deposit was
paid to purchase was installed. Clowers thus entrusted his money to defendant’s possession, but
retained title to the money until defendant completed his obligation. Because defendant did not
fulfill his obligation, despite frequent communication from Clowers demanding progress, and kept
the deposit entrusted to him, there was evidence to support the conclusion that he intended to
deprive Clowers permanently of that property.
Accordingly, viewing the evidence in a light most favorable to the prosecution, the trial
court reasonably concluded beyond a reasonable doubt that defendant intended to convert the
deposit money for his own use. Therefore, the trial court did not clearly err when it found that
there was sufficient evidence to convict defendant of larceny by conversion. Because there was
sufficient evidence to support defendant’s conviction, his due-process rights were not violated.
See People v Breck, 230 Mich App 450, 456; 584 NW2d 602 (1998).
III. SPEEDY TRIAL
Defendant next argues that the trial court violated his right to a speedy trial. We disagree.
In order to preserve this issue for appeal, the defendant must make a formal demand for a
speedy trial on the record. People v Cain, 238 Mich App 95, 111; 605 NW2d 28 (1999). In this
case, defendant did not formally demand a speedy trial at any time in the trial court. Thus, this
issue was not preserved for appeal. Unpreserved claims are reviewed for plain error affecting
substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). When there is
plain error, reversal is warranted only if the error resulted in the conviction of an innocent
defendant, or if “the error seriously affected the fairness, integrity, or public reputation of judicial
proceedings independent of the defendant’s innocence.” Id.-6-
Both the United States and Michigan Constitutions guarantee a “speedy and public trial”
for a criminal defendant, which, in Michigan, is enforced by “statute and by court rule.” People v
Williams, 475 Mich 245, 261; 716 NW2d 208 (2006), citing US Const, Am VI; Const 1963, art 1,
§ 20; MCL 768.1; MCR 6.004(A). The purpose of the speedy-trial 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; 581 NW2d 219 (1998), quoting United States v MacDonald, 456 US 1, 8; 102 S
Ct 1497; 71 L Ed 2d 696 (1982). To determine whether a defendant has been denied the right to
a speedy trial, a court should balance the four factors set forth in Barker v Wingo, 407 US 514; 92
S Ct 2182; 33 L Ed 2d 101 (1972): “ ‘(1) the length of delay, (2) the reason for delay, (3) the
defendant’s assertion of the right, and (4) the prejudice the defendant.’ ” Cain, 238 Mich App at
112; 605 NW2d 28 (1999), quoting Williams, 475 Mich at 261-262.
Addressing the first factor, “[t]he 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. In this
case, the record includes no document providing defendant’s arrest date; however, according to
the register of actions, defendant was arraigned on March 22, 2019, and his trial began on January
12, 2022. Therefore, the length of delay in this case was nearly 34 months. It is presumed that a
defendant is prejudiced after a delay of 18 months, upon which “the burden shifts to the
prosecution to show that there was no injury,” and this involves “an inquiry into the other factors
to be considered in the balancing of the competing interests to determine whether a defendant has
been deprived of the right to a speedy trial.” Williams, 475 Mich at 262 (quotation marks and
citation omitted). The significant pretrial delay in this case was long enough to presume that
defendant was prejudiced, even though that presumption is not dispositive of defendant’s claim.
See Cain, 238 Mich App at 112-113 (explaining that “[t]he length of delay is not determinative of
a speedy trial claim”) (Quotation marks and citation omitted.)
Turning to the second factor, reasons given for the delay, defendant notes that his trial was
initially scheduled for January 14, 2020, about 10 months after his arrest, but was rescheduled to
March 2020 by agreement of the parties. The parties agreed to an adjournment so that defendant
could retain new counsel, and also try to resolve both the instant case, and another pending case,
through negotiation. During the 10-month delay from the date of defendant’s arrest to the original
date set for trial, defendant’s pretrial was adjourned from August 5, 2019 to September 12, 2019
for plea negotiations and for defendant to come up with restitution. The record indicates that the
remaining nine months of delay were due to docket congestion and other administrative reasons
inherent in the court system, which are attributable to the prosecution. However, even if docket
congestion and other administrative delays “are technically attributable to the prosecution, they
are given a neutral tint and are assigned only minimal weight in determining whether a defendant
was denied a speedy trial.” People v Gilmore, 222 Mich App 442, 460; 564 NW2d 158, 167 (1997)
(quotation marks and citation omitted). The two months between January 2020 and March 2020
that defendant used to retain new counsel and negotiate a plea deal can be attributed to defendant.
On March 3, 2020, instead of proceeding to trial, this case was remanded to the district
court for a preliminary examination, which defendant’s original attorney had waived, but that
proceeding could not be held until August 12, 2021, due to the COVID-19 pandemic. That
represents another 17-month delay. Following the preliminary examination, an arraignment was
-7-
scheduled for August 30, 2021, but during that proceeding, the trial court adjourned the matter 30
days to allow defendant’s counsel to obtain the preliminary examination transcript. A pretrial was
scheduled for October 25, 2021, which was another two month delay, with one month attributable
to defendant for the transcript request and one month attributable to docket congestion. The parties
then agreed to adjourn the pretrial to November 4, 2021, because defendant filed a motion to quash.
On that date, defendant chose to withdraw his motion to quash and trial was scheduled for
December 14, 2021. Trial was adjourned to January 2022 at defendant’s request because he was
sick on the date originally scheduled for trial. Defendant is responsible for these additional three
months of delay.
The record thus indicates that the largest portion of the delay was for the period of inactivity
between March 2020 and August 2021, 17 months, which coincided with restrictions related to the
COVID-19 pandemic. In United States v Smith, 494 F Supp 3d 772, 783 (ED Cal, 2020), the
federal district court held that the “emergency health measures to limit the spread of COVID-19”
responsible for a delay in the defendant’s trial did not “weigh against the Government” because
“the Court’s inability to safely conduct a jury trial is a good-faith and reasonable justification for
the delay.” In People v Witkoski, 341 Mich App 54, 60; 988 NW2d 790 (2022), this Court held in
the context of the 180-day rule that delays primarily resulting from our Supreme Court’s decision
to suspend jury trials in response to the COVID-19 pandemic were not attributable to either party.
The reasoning of Witkoski is equally applicable when considering the effect of that delay on the
constitutional right to speedy trial, in that the directives of our Supreme Court must be followed
by the lower courts, and therefore the prosecution should not be penalized by them.
Based on the foregoing, in total, 10 months of delay are attributable to the prosecution, and
seven months of delay are attributable to defendant. The prosecution was not responsible for the
delays resulting from (1) defendant’s request for time to consider plea options, (2) defendant’s
decision to hire new counsel and hold a preliminary examination, (3) defendant’s request for a
transcript of the preliminary examination, (4) defendant’s filing and withdrawal of a motion to
quash, and (5) defendant being sick for the originally scheduled trial date. Periods of delay
requested by defendant or otherwise attributable to defendant weigh against him in the balancing
analysis. Cain, 238 Mich App at 113. The prosecution also could not be penalized for the 17-
month delay caused by COVID-19 safety protocols. The remaining 10-month delay attributable
to the prosecution due to docket congestion and administrative reasons weighs against the
prosecution, but is “given a neutral tint” and “assigned only minimal weight.” Williams, 475 Mich
at 263. Accordingly, this factor weighs against the prosecution, but only minimally.
The third factor is the defendant’s assertion of his right to a speedy trial. Defendant never
asserted his right to a speedy trial, so the trial court had no reason to comment on the matter or
place on the record the reasons for delay. “Whether and how a defendant asserts his right is closely
related to the other factors we have mentioned.” Barker, 407 US at 531. This factor “is entitled
to strong evidentiary weight” because “[t]he more serious the deprivation, the more likely a
defendant is to complain.” Id. Defendant’s failure to assert his right to a speedy trial weighs
against finding that his right to a speedy trial was violated.
The fourth and final factor in a speedy trial analysis is whether defendant suffered prejudice
as a result of the delay and is critical to the analysis. Cain, 238 Mich App at 112. Because
prejudice to defendant is presumed with the delay greater than 18 months, “the prosecution must
show that no injury occurred.” People v Rivera, 301 Mich App 188, 193; 835 NW2d 464 (2013).
-8-
“There are two types of prejudice which a defendant may experience, that is, prejudice to his
person and prejudice to the defense.” Williams, 475 Mich at 264 (quotation marks and citation
omitted). Prejudice to the person includes “oppressive pretrial incarceration” as well as “anxiety
and concern of the accused.” Barker, 407 US at 532. “However, anxiety, alone, is insufficient to
establish a violation of defendant’s right to a speedy trial.” People v Gilmore, 222 Mich App 442,
462; 564 NW2d 158 (1997). “Prejudice to the defense is the more serious concern, because the
inability of a defendant adequately to prepare his case skews the fairness of the entire system.”
Williams, 475 Mich at 264 (quotation marks and citations omitted).
With regard to prejudice to defendant’s person, the two-days’ jail credit noted in
defendant’s judgment of sentence indicates that defendant spent minimal time in custody between
his arrest and trial. This Court has held that a defendant who has not been incarcerated during a
postarrest delay before trial has not endured prejudice to the person. Gilmore, 222 Mich App at
462; Wickham, 200 Mich App 106, 112. Defendant states that the prejudice he suffered took the
form of “the disruption of life caused by his arrest and the presence of unresolved criminal charges”
that he endured, but he does not specify any such disruptions. Defendant also complains of general
anxiety due to the delay, but, as explained, “anxiety, alone, is insufficient to establish a violation
of defendant’s right to a speedy trial.” Gilmore, 222 Mich App at 462.
Turning to “the most serious inquiry”—prejudice to the defense—we consider whether the
delay has impaired the defendant’s defense. Simpson, 207 Mich App at 564. In assessing prejudice
to the defense, 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). The prosecution contends that, based on the record, there is nothing to support
that defendant’s defense was degraded as a result of the delay. Having reviewed the record, we
agree that it does not reveal any apparent disadvantage to defendant caused by the delay.
Moreover, defendant does not explain how his defense was degraded by the delay; he does not
assert any loss of witnesses or evidence, or claim that his ability to adequately prepare or present
his defense was prejudiced by the delay. On this record, we conclude that the prosecution
sufficiently showed that defendant did not suffer any prejudice as a result of the delay in this case.
In sum, of the four Barker factors, the first factor supports that defendant’s right to a speedy
trial was violated, but “[t]he length of delay is not determinative of a speedy trial claim.” Cain,
238 Mich App at 112-113. The second factor, reasons for the delay, also supports that defendant’s
speedy trial right was violated, but only minimally. The other two factors weighed against
defendant’s claim. Further, the prosecution overcame the presumption of prejudice resulting from
the delay. Accordingly, balancing the four Barker factors, we find no violation of defendant’s
right to a speedy trial.
Affirmed.
/s/ Colleen A. O’Brien
/s/ Mark J. Cavanagh
/s/ Jane E. Markey
-9-