text:
    PEOPLE v CRAMER
    Docket No. 78-4254.
    Submitted February 14, 1980, at Lansing.
    Decided April 23, 1980.
    Leave to appeal applied for.
    Edward N. Cramer, Jr., was convicted of first-degree felony murder, Menominee Circuit Court, V. Robert Payant, J. During the trial evidence was admitted, over the defendant’s objection, to show that the defendant had committed an assault earlier the same evening in an incident separate from the offense with which he was charged. The trial court acknowledged the possible prejudice to the defendant, but found the evidence probative and relevant to show the state of mind of the defendant. The trial judge instructed the jury concerning the limited purpose for which the testimony could be considered. Defendant appeals contending the evidence was inadmissible because it was not probative of defendant’s motive, scheme or plan, or the absence of mistake or accident, and its prejudicial impact outweighed its probative value. Held:

    1. It was not error to admit evidence of the defendant’s other bad acts than those charged, under the "similar acts” doctrine, where the evidence was substantial, relevant, and not unduly prejudicial to a matter which was material and in controversy in the case.
    2. Admission of testimony concerning the defendant’s activities two to four hours before the homicide for which he was on trial was not error where (1) there was substantial evidence that he had actually perpetrated the act sought to be introduced, (2) the challenged evidence was introduced to establish an issue material to the outcome of the case, the defendant’s state of mind at the time of the charged offense, which was the only matter at issue at trial, since the defendant admitted killing his victim, and (3) the trial judge recognized the materiality of the evidence.

      References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence § 320 et seq.

    [2, 4] 40 Am Jur 2d, Homicide §§ 115, 292, 293.
    [3] 40 Am Jur 2d, Homicide § 310.
    [4] 40 Am Jur 2d, Homicide §§ 314, 493.
    [5] 40 Am Jur 2d, Homicide § 114 et seq.

    [6] 40 Am Jur 2d, Homicide § 295.
    Modern status of the rules as to voluntary intoxication as defense to criminal charge. 8 ALR3d 1236.
    When intoxication deemed to be involuntary so as to constitute a defense to criminal charge. 73 ALR3d 195.
    [7] 81 Am Jur 2d, Witnesses §§ 187, 188, 199.
    Persons other than client or attorney affected by, or included within, attorney-client privilege. 96 ALR2d 125.

      Affirmed.
    1. Criminal Law — Evidence — Other Bad Acts —• Rules of Evidence.
    The language of the rule governing the admission of evidence of other bad acts of a defendant makes clear that the evidence may be admitted for purposes other than to prove the character of the defendant and the list of possible purposes for admission found in the rule is illustrative, not exhaustive (MRE 404[b]).
    2. Criminal Law — Evidence — Defenses — Insanity — Diminished Capacity.
    Any and all conduct of an accused is admissible as evidence where the defense of insanity or diminished capacity is raised, and, in a homicide trial, evidence of a prior bad act of the defendant, preceded and followed by other evidence illustrating the defendant’s activities, conduct and routine on the night of the crime, established the defendant’s state of mind during the time leading up to and subsequent to the unwitnessed killing for which he was being tried and is admissible as relevant to a material issue.
    3. Homicide — Evidence — Other Bad Acts — Prejudice — Fair Trial.
    A trial court did not abuse its discretion by admitting evidence of a defendant’s prior bad act and finding it to be more probative than prejudicial where it carefully balanced the factors and where the evidence directly tended to establish the defendant’s state of mind at the time of the killing and was necessary to provide a complete picture of the defendant’s conduct, activities and behavior on the night of the crime and was clearly probative of a material issue and important to the jury’s determination of the defendant’s state of mind.
    4. Homicide — Evidence — Other Bad Acts — Prejudice — Inflammatory Testimony — Instructions to Jury.
    It was not an abuse of discretion for a trial judge to admit testimony of other bad acts in a murder trial where he minimized the possibility for confusion of the issues or misleading the jury in admitting the evidence of other bad acts by giving specific instructions at the end of the testimony and at the close of trial on the permissible use of the testimony.
    5. Homicide — Defenses — Insanity — Notice of Insanity Defense.
    Filing a notice of insanity defense by the defendant provides notice that the issue of the defendant’s sanity is likely to be controverted at trial.
    6. Homicide — Defenses — Insanity — Plea of Not Guilty by Reason of Insanity.
    A defendant’s plea of not guilty by reason of insanity places in issue subjective factors of the defendant’s emotion and mind which, taken together with his success in obtaining a continuance prior to trial in order to undergo an examination on the issue of his sanity at the time of the offense as well as the questioning of a prosecution witness as to the defendant’s sobriety at the time of an alleged assault on her occurring several hours prior to the crime charged, places the defendant’s state of mind in dispute.
    7. Criminal Law — Attorney and Client — Privilege — Telephone Conversations.
    A telephone conversation between a defendant and his girl friend in which the defendant simply expresses his desire to see, among others, his attorney and, thereafter, emotionally admits his complicity in the charged offense cannot be construed as a principal-agent relationship falling within the attorney-client privilege.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Ian J. Redpath, Prosecuting Attorney (by Thomas C. Nelson, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      Ronald J. Bretz, Assistant State Appellate Defender, for defendant on appeal.
    Before: J. H. Gillis, P.J., and Allen and M. J. Kelly, JJ.
   Per Curiam.

On June 19, 1978, defendant was convicted by a jury of first-degree felony murder. MCL 750.316; MSA 28.548. He was sentenced to mandatory life imprisonment without parole and appeals as of right.

During his opening statement in the trial on the charge of first-degree murder, the prosecutor stated that he would present, inter alia, evidence to show that defendant had committed an assault on another woman, Karen Erickson, earlier the same evening that defendant killed his victim, Laura Allinger. Defense counsel did not object to this remark but, after reserving his opening statement, objected outside the presence of the jury to the introduction of any testimony concerning the alleged assault on Karen Erickson:

"This incident, in the opinion of the defense, has absolutely nothing to do with the current charge involving the charge of murder * * * It is clearly a separate incident and there is no tie-in that can be seen by the defense with the present situation * * * [W]e would object to the incidents involving Karen Erickson being utilized as evidentiary matters in the trial of this case because of the fact that they are not relevant or material, and even, if so, are too highly prejudicial to be utilized as evidence.”

The prosecutor responded that evidence of the prior assault would show a "plan, scheme, motive, purpose, for the offense charged”. The trial court overruled the defense objection and found the evidence of the assault admissible. In so ruling, the lower court judge acknowledged the possible prejudice to defendant but felt that the applicable statute and court rule had been satisfied. In addition, the trial judge noted that he would give a limiting instruction at the time the evidence was admitted and would also consider reversing his ruling, "because of other intervening things that may come to my attention, but as of this time, I am satisfied that the prosecution may use such evidence as to what happened earlier that evening”.

The following day, defense counsel renewed his motion to exclude evidence of defendant’s prior assault on Karen Erickson. The trial judge again rejected the motion and ruled that the evidence was admissible pursuant to MRE 404(b) and 403.

"I find that the evidence is clearly probative. It clearly is relevant — it occurred within a relatively short period of time. It would go, certainly, to the element of the state of mind of the Defendant, and I understand that the state of mind of the Defendant is indeed going to be a significant issue in this case.”

Alternatively, the judge held that the evidence "could be considered part of the res gestae”.

"It was certainly close in time to the offense charged in the information. The whereabouts of the Defendant during the evening in question, the other contacts that he had made during the evening in question, all seem to have a probative value which should be able to be considered by the jury.”

Subsequently, Karen Erickson testified during the prosecutor’s case in chief. She stated that while living with her cousin, Rebecca Badge, she went to sleep on the evening of September 28, 1977, to be awakened one hour later by someone with the smell of alcohol on his breath lying in bed next to her. Upon realizing that the person in bed with her was not her cousin, she became startled and jumped out of bed. The other person also jumped out of bed, grabbed Miss Erickson by the shoulders and warned her to "cool it, Becky”. Miss Erickson testified that she told the intruder that she was Becky’s cousin, that the intruder threatened her with a knife and that he told her to stay in the bedroom and not to turn on any lights. Eventually, after taking a small amount of money from the witness’s purse and a bread knife from the kitchen, the intruder fled the premises in a "green or brown” Chrysler automobile. Miss Erickson was able to identify the license plate number of the vehicle and subsequently identified the defendant’s voice as that of the intruder. The car was later determined to be that of defendant’s fiancée. It was undisputed that defendant drove the car on the night in question.

At the conclusion of Miss Erickson’s testimony, and again in its final charge to the jury, the trial court instructed the jury concerning the limited purpose for which the testimony could be considered in accordance with CJI 4:10:01.

The main issue on appeal is whether the trial judge abused his discretion by admitting evidence of an allegedly similar act committed by the defendant two to four hours before the murder of Laura Allinger. Defendant contends that the evidence was inadmissible because it was not probative of defendant’s motive, scheme or plan, or the absence of mistake or accident. In addition, defendant claims that the prejudicial impact of this evidence outweighed its probative value. The prosecution counters by arguing that, where proof of defendant’s intent rests solely on circumstantial evidence in a case of first-degree murder, it is not error to admit evidence of a prior criminal incident reflective of defendant’s state of mind which was part of an uninterrupted pattern of behavior and which occurred a short time prior to the homicide.

Evidence of defendant’s assault on Karen Erickson was admitted on the authority of MRE 404(b), which supersedes the long-standing similar acts statute found at MCL 768.27; MSA 28.1050. MRE 404(b) provides:

"Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crime, wrongs, or acts are contemporaneous with, or prior or subsequent to the crime charged.” (Emphasis supplied.)

Generally, evidence tending to show that a defendant has committed crimes or bad acts other than those charged is inadmissible because its probative value is outweighed by the likelihood of impermissible prejudice, preventing an objective determination of the disputed factual issue. People v Flynn, 93 Mich App 713; 287 NW2d 329 (1979), People v Bates, 91 Mich App 506, 510; 283 NW2d 785 (1979), People v Wilkins, 82 Mich App 260, 265; 266 NW2d 781 (1978), People v Gibson, 66 Mich App 531, 536; 239 NW2d 414 (1976), and authorities cited therein.

"There are, however, instances in which such evidence is admissible to establish other, legally recognized matters, so long as the evidence is not offered as mere circumstantial evidence to prove the bad character of the defendant, and hence, the probability of his guilt for the crime charged. Thus, if evidence of other bad acts of the defendant is being introduced for some purpose other than to raise the inference of a probability that the accused committed the crime charged, the rule excluding the evidence is simply inapplicable. People v Spillman, 399 Mich 313, 319; 249 NW2d 73 (1976). It is for this reason that the law recognizes exceptions to the general exclusionary rule regarding evidence of defendant’s prior bad acts or crimes.” People v Flynn, supra, 718.

MRE 404(b) and the similar acts statute are perfect examples of attempts by the Supreme Court and Legislature to codify both the rule and some of its exceptions.

However, the list of exceptions to the general rule found in MRE 404(b) is not exhaustive. No mechanical or fixed rule can encompass all of the possible reasons for which evidence of the defendant’s other bad acts might be admissible at the trial on an unrelated charge. Indeed, the language used in MRE 404(b) makes clear that the evidence may be admissible for purposes other than to prove the character of a person in order to show that he acted in conformity therewith. The list of those "other purposes”, e.g., motive, opportunity, intent, preparation, etc., must be viewed as examples, and not the exclusive grounds on which such evidence is rendered admissible as an exception to the general rule. People v Fisher, 77 Mich App 6, 11; 257 NW2d 250 (1977), lv den 402 Mich 811 (1977). See, e.g., People v Nawrocki, 376 Mich 252, 255; 136 NW2d 922 (1965). In short:

"The rule is that the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.” McCormick on Evidence (2d), § 190, p 447.

Bearing in mind the high degree of prejudice inherent in evidence of an accused’s other bad acts, our courts have traditionally required that the prosecution meet somewhat higher standards of admissibility for such evidence than is ordinarily required for other types of evidence. The leading case on point is People v Wilkins, 82 Mich App 260, 267-271; 266 NW2d 781 (1978), lv den 406 Mich 857 (1979). In essence, to admit evidence under the so-called "similar acts” doctrine it is necessary that the evidence of the defendant’s other bad acts be substantial, relevant, and not unduly prejudicial to a matter which is material and in controversy in the case. While these principles (of evidentiary law) are readily applicable to the admission of any type of proffered evidence (see, e.g., MRE 401, 403), they take on a special meaning when the evidence sought to be admitted in a criminal trial pertains to instances of bad or criminal acts of the defendant for which he is not presently on trial.

Applying the foregoing principles to the instant case, we find that the admission of testimony concerning defendant’s activities at the Erickson residence two to four hours before the homicide for which he was on trial, was not erroneous.

First, there was substantial evidence that the defendant actually perpetrated the bad act sought to be introduced under the standards set forth in Wilkins, supra, 267, and People v Cook, 95 Mich App 645; 291 NW2d 152 (1980). Defendant does not challenge the sufficiency of this evidence on appeal.

Second, the challenged evidence was introduced to establish an issue material to the outcome of the case. Wilkins, supra, 268. The purpose for which defendant’s bad act was offered by the prosecution was, inter alia, to establish defendant’s state of mind at the time of the charged offense. This issue was, essentially, the only matter in controversy in the case since defendant admitted killing his victim on the night in question. The trial judge recognized the materiality of the proffered evidence, ruling:

"It would go, certainly, to the element of the state of mind of the Defendant, and I understand that the state of mind of the Defendant is indeed going to be a significant issue in this case.”

Defendant challenges the above ruling by the trial judge, claiming that, because defense counsel reserved his opening statement at trial until after the prosecution had completed its case in chief, the matter which the evidence purportedly tended to prove was not yet in dispute. Defendant acknowledges that, ultimately, the only controverted issue at trial was his state of mind at the time of the killing but contends that, since the matter had not been raised by the defense "in opening statement, by cross-examining prosecution witnesses or by presenting affirmative evidence” on the issue, the prosecution should have waited until after the defense rested to offer the Erickson testimony as rebuttal evidence. Wilkins, supra, 268-269. During oral argument before this Court, it was pointed out to defendant’s appellate counsel that, prior to trial, counsel for the defendant had filed a notice of insanity pursuant to MCL 768.20a(l); MSA 28.1043(1)(1). At that point, appellate counsel conceded the materiality of the proposed evidence. This concession is supported by law and reason.

In People v Oliphant, 399 Mich 472, 489; 250 NW2d 443 (1976), and People v Major, 407 Mich 394, 399; 285 NW2d 660 (1979), the Supreme Court quoted with approval from McCormick on Evidence (2d ed), § 185, p 434, concerning when it can be said that a certain proposition is a matter "in issue”:

"As to what is 'in issue’, that is, within the range of the litigated controversy, we look mainly to the pleadings, read in the light of the rules of pleading and controlled by the substantive law.”

Applying this standard to the case at bar we observe that, as a matter of substantive law, the mere filing of a notice of insanity defense does not overcome the presumption of the defendant’s sanity sufficient to take the issue to the jury. People v Woody, 380 Mich 332, 338; 157 NW2d 201 (1968), People v Livingston, 57 Mich App 726, 733; 226 NW2d 704 (1975). Accordingly, the prosecution is not automatically required to establish defendant’s sanity beyond a reasonable doubt. Nonetheless, we conclude that such a pleading provides notice that the issue is likely to be controverted at trial because it sharpens in advance the issue of this special defense. McCormick on Evidence (2d ed), § 190, p 452, fn 54.

In addition to filing the notice of insanity defense, at his arraignment on the open charge of murder, defendant entered a plea of not guilty by reason of insanity. This plea "places in issue subjective factors of an individual’s emotion and mind”. People v Martin, 386 Mich 407, 427; 192 NW2d 215 (1971), cert den sub nom Lewis v Michigan, 408 US 929; 92 S Ct 2505; 33 L Ed 2d 342 (1972). These factors, combined with defense counsel’s success in obtaining a continuance prior to trial for the purpose of allowing the defendant to undergo examination at the Center for Forensic Psychiatry on the issue of his sanity at the time of the charged offense, along with counsel’s cross-examination of a prosecution witness concerning defendant’s state of sobriety prior to the assault on Miss Erickson (which examination occurred before she testified about the assault), persuade us that the defendant’s state of mind was sufficiently in dispute at the time evidence of the episode at the Erickson residence was introduced at trial. Accordingly, defendant’s state of mind was material and "in issue” in the instant trial.

Third, evidence of the defendant’s activities and behavior at the Erickson residence was probative of defendant’s state of mind at the time of the homicide two to four hours later in the evening; the evidence was logically relevant to defendant’s state of mind at the time of the charged offense. In brief, the issue in dispute is whether the tendered evidence had "any tendency to make the existence of a fact that is of consequence to the determination of the action more probable * * * than it would be without the evidence”. MRE 401, People v Becker, 300 Mich 562, 565; 2 NW2d 503 (1942), People v Surles, 29 Mich App 132, 138; 185 NW2d 126 (1970).

Defendant answers the issue in the negative, contending that there were no "special circumstances” or "connections” between the bad acts and the offense charged, as required by Wilkins, supra, 267, and Major, supra, 398-400.

Evidence of defendant’s actions just prior to, during and subsequent to the crime charged was "helpful in throwing light” upon defendant’s state of mind at the time of the offense. Becker, supra, Surles, supra. The logical relevancy and probative value of this circumstantial evidence is most persuasively argued in 2 Wigmore, Evidence (Chadbourn Rev), § 228, p 9:

"Sanity and insanity are terms applicable to the mode of operation of the mind as judged by some accepted standard of normality. The mode of operation of the mind is ascertainable from the conduct of the person in question, i.e., from the effect produced by his surroundings on his mind when responding by action to those surroundings. Virtually, then, the mind is one, while the surroundings are multifold; and the mode of operation cannot be ascertained to be normal or abnormal except by watching the effects through a multifold of causes. On the one hand, no single act can be of itself decisive; while, on the other hand, any act whatever may be significant to some extent.
"The first and fundamental rule, then, will be that any and all conduct of the person is admissible in evidence. There is no restriction as to the kind of conduct. There can be none; for if a specific act does not indicate insanity it may indicate sanity. It will certainly throw light one way or the other upon the issue.”

Michigan decisions are in accord with the rule that any and all conduct of the accused is admissible as evidence where the defense of insanity or diminished capacity is raised:

"Testimony of prior arrests, convictions, assaultive and antisocial conduct, ordinarily completely inadmissible as bearing on the general guilt or innocence of the accused of the offense charged, became material and admissible as bearing on the issue of his sanity.” Woody, supra, at 338.

People v Compian, 38 Mich App 289, 296-297; 196 NW2d 353 (1972), lv den 387 Mich 790 (1972), People v Musser, 53 Mich App 683, 686; 219 NW2d 781 (1974), lv den 392 Mich 798 (1974), People v Culpepper, 59 Mich App 262, 266-267; 229 NW2d 407 (1975), lv den 399 Mich 854 (1977), People v Hammack, 63 Mich App 87, 93; 234 NW2d 415 (1975), People v Clay, 91 Mich App 716, 729; 283 NW2d 870 (1979). And see People v Zabijak, 285 Mich 164, 185-186; 280 NW 149 (1938), People v Counts, 318 Mich 45; 27 NW2d 338 (1947).

The evidence of defendant’s activities at the Erickson residence was preceded and followed by other evidence introduced by the prosecution illustrating the defendant’s activities, conduct, and routine on the night of the crime. The combined effect of this evidence was to establish defendant’s state of mind during the time leading up to and subsequent to the unwitnessed killing of Laura Allinger. As such, the evidence rendered the fact of defendant’s sanity and mental capacity at the time of the charged offense more probable than it would be without the evidence. In concluding that the challenged evidence was logically relevant as bearing on a material issue in controversy at trial, we quote from a decision of the Nevada Supreme Court in which the same issue was raised:

"It is true, as the appellant suggests, that Nevada follows the rule of exclusion concerning evidence of other oifenses. We exclude such evidence unless relevant to prove the commission of the crime charged. Tucker v State, 82 Nev 127, 412 P2d 970 (1966), and the many Nevada cases therein cited. That rule, however, does not touch the issue here presented. We are not concerned in this case with proving the commission of the homicide. It is admitted that the defendant killed Hawthorne. He sought to escape legal responsibility for the homicide because of insanity. When that defense is interposed, any words or conduct shedding light on that issue are admissible, even though they disclose other criminal acts of the defendant. Brothers v State, [236 Ala 448]; 183 So 433 (1938); Grammer v State, [239 Ala 633]; 196 So 268 (1940); Vol 2, Wigmore, Evidence, § 228 (3d ed 1940).” Mears v State, 83 Nev 3, 9-10; 422 P2d 230, 234 (1967), cert den 389 US 888; 88 S Ct 124; 19 L Ed 2d 188 (1967), reh den 389 US 945; 88 S Ct 299; 89 L Ed 2d 303 (1967).

In reaching this conclusion, we are not unmindful of the special requirements of relevancy imposed by the Supreme Court in Major, supra, 398-400.

Fourth, we find that the trial court did not abuse its discretion in ruling that evidence of the prior bad act was more probative than prejudicial. MRE 403, People v Duncan, 402 Mich 1, 14; 260 NW2d 58 (1977), People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973). In balancing prejudicial effect against probative value, the trial judge:

"must balance many factors including: the time necessary for presenting the evidence and the potential for delay; how directly it tends to prove the fact in support of which it is offered; whether it would be a needless presentation of cumulative evidence; how important or trivial the fact sought to be proved is; the potential for confusion of the issues or misleading the jury; and whether the fact sought to be proved can be proved in another way involving fewer harmful collateral effects.” Oliphant, supra, 490. See also Wilkins, supra, 270-271.

Weighing these factors on appeal we cannot conclude that the probative value of the evidence was "substantially outweighed by the danger of unfair prejudice”. MRE 403. Only three witnesses, including Karen Erickson, testified concerning the defendant’s intrusion at her residence on the night of the killing. In relation to the testimony of the other 50 or more witnesses who testified at trial, the amount of time necessary for presenting this evidence was minimal. In addition, as noted above, this evidence, combined with the evidence accounting for defendant’s other activities on the night of the crime, directly tended to establish defendant’s state of mind at the time of the killing. Moreover, the challenged testimony was not a "needless presentation of cumulative evidence”. Rather, it was necessary in providing a complete picture of the defendant’s conduct, activities and behavior on the night of the crime. Absent this evidence, the jury would have been given only a partial depiction of defendant’s activities when, in fact, those activities could be accounted for by reference to the Erickson testimony. Further, the fact sought to be proved (i.e., defendant’s activities at the Erickson residence), while not critical to the prosecution’s case, was clearly probative of a material issue and therefore important to the jury’s determination of defendant’s state of mind. Finally, we recognize the potentially inflammatory impact of the testimony portraying defendant as a burglar, assaulter and thief in a trial for murder. However, the trial judge minimized the possibility "for confusion of the issues or misleading the jury” by giving specific instructions both at the end of Miss Erickson’s testimony and at the close of trial on the permissible uses of the testimony.

Accordingly, we find no abuse of discretion by the trial judge in allowing the bad acts testimony to be presented to the jury in this case.

Defendant raises one other issue on appeal, contending that the trial court erred in allowing the defendant’s girl friend to testify to a conversation she had with' the defendant while he was awaiting trial:

"A. He (defendant) told me he wanted me to get ahold of his lawyer, and that he wanted to see his lawyer and his mother and father and me that day.
"Q. Did he say anything concerning the crime itself?
"A. Yeah, he was really upset, and he started cryin’, and he says something about that he could — he was starting — things were startin’ to come back, and he could remember, and he started crying and said that it was an — he said, 'It was an accident, honey.’ And he was crying.”

Appellant argues that his conversation was protected by the attorney-client privilege since she was acting as the defendant’s agent for the purpose of contacting the defendant’s attorney, who was 90 miles away.

We fail to see how a telephone conversation between the defendant and his girl friend in which the defendant simply expresses his desire to see, among others, his attorney and thereafter emotionally admits his complicity in the charged offense can be construed as a principal-agent relationship falling within the attorney-client privilege. The cases cited by appellant are distinguishable and, therefore, inapposite. Compare, People v Hilliker, 29 Mich App 543, 548; 185 NW2d 831 (1971).

Affirmed.

       During his testimony, defendant admitted that he had been at the Badge residence on September 28, 1977, but claimed that he was looking for Connie Beauchamp. He testified that he "took off’ when the girl present "got all excited” and disclaimed any memory of a knife and stated that he did not take anything from the premises.

       Whether or not evidence of defendant’s activities at the Erickson residence is probative and not unduly prejudicial to the matter for which it is submitted is a question of logical (MRE 401) and legal (MRE 403) relevancy, not materiality. See People v Stander, 73 Mich App 617, 624-625; 251 NW2d 258 (1977). The question of materiality precedes the issue of relevancy because, even though evidence may be probative of a specific issue or proposition, it is still rendered inadmissible as immaterial, if that issue or proposition is not controverted or "of consequence to the determination of the action”. MRE 401, see People v Rustin, 406 Mich 527, 530-531; 280 NW2d 448 (1979).

       Defense counsel later abandoned the insanity defense, preferring instead to rely on a defense of diminished mental capacity, i.e., not consciously aware of the full nature and extent of his conduct, brought about by inherent personality disorders and severe alcohol and drug intoxication on the night of the crime. People v Fields, 64 Mich App 166; 235 NW2d 95 (1975), lv den 397 Mich 861 (1976). Beside arguing to the jury that the evidence presented by both sides failed to establish that defendant premeditated and deliberated in killing his victim, defense counsel argued that the defendant was, due to his diminished mental capacity, unable to form the specific intent necessary to complete either first- or second-degree murder or the underlying felonies of larceny or kidnapping, on which the first-degree felony-murder charge was based. Defense counsel argued that defendant "is very much like a V-8 automobile running on four cylinders”.

        Major, supra, 398, states that before evidence of similar bad acts of defendant is admissible, the prosecution must establish:
      "1) that the manner in which the criminal act in question or some significant aspect of it was performed bore certain distinguishing, peculiar or special characteristics;
      "2) that certain specific similar acts, performed contemporaneously with or prior to or subsequently to the act in question bore the same distinguishing, peculiar or special characteristics; * *
      See McCormick, Evidence (2d ed), § 190, p 449. However, review of the various authorities decided since Wilkins, supra, and Major, supra, persuades us that neither reason nor precedent requires that the prosecution establish the existence of "distinguishing, peculiar or special characteristics” of either the bad acts or the charged offense where they are dissimilar or incongruous. As such, this aspect of Major is simply inapplicable to the case at bar. See McCormick, supra, 452.

       However, contrary to the trial judge’s ruling, this evidence was not admissible on its own merits under the "res gestae” rule because it was not "an inseparable part of the whole deed for which defendant is charged”. Flynn, supra, 93 Mich App 713, 719. Nor was the episode at the Erickson residence "inextricably related” to the subsequent killing of Laura Allinger. People v Delgado, 404 Mich 76; 273 NW2d 395 (1978).

       Still, this impact is not as serious as where the other bad act shows defendant as being engaged in a continuing course of criminal conduct of the same kind. In those cases, the jury might conclude, albeit impermissibly, that "if he did it before he probably did it this time”. Here, the worst possible portrayal of defendant is that he is, in general, a man with a bad character and criminal propensities. People v Matthews, 17 Mich App 48, 52; 169 NW2d 138 (1969).


source: Caselaw Access Project

author: Per Curiam:.

license: Public Domain

text:
    STATE OF MICHIGAN ex rel WAYNE PROSECUTOR v POWERS
    Docket No. 78-4645.
    Submitted January 7, 1980, at Detroit.
    Decided April 23, 1980.
    Leave to appeal applied for.
    The Wayne County Prosecutor brought an action to abate a public nuisance against Robert J. Powers, Robert C: Benson, Cynthia A. Benson and Charles H. Wrightman (who was dismissed as a party). The Wayne Circuit Court, Peter B. Spivak, J., issued an order abating the nuisance. Wrightman was found to be in contempt for violating the order, sentenced to six months in jail and ordered to pay a $1,000 fine. Wrightman appeals, alleging that the circuit court lacked in personam jurisdiction over him because (a) the affidavits supporting the order to show cause were insufficient to sustain a finding of contempt; (b) defendant was not a party to the original proceeding from which the injunctive order issued; (c) it was never established that defendant was an agent or employee of the party defendants in the original action; and (d) the injunctive order of June 17, 1977, was void. Held:

    1. A person made a party to a suit is bound by an order of the court if he is within that class of persons to be restrained and has knowledge or notice of the order.
    2. Conduct not committed in the presence of the court, to be the proper subject of contempt proceedings, must be brought to the court’s attention by petition supported by affidavits of a person or persons who have personal knowledge of the acts; a trial judge can rely on facts stated in the submitted affidavits as well as legitimate inferences drawn therefrom in determining whether contempt was committed.
    3. Service of process by publication is acceptable in an action to abate a public nuisance if personal service cannot be obtained.
    4. Contempt proceedings under the public nuisance statute are criminal in nature. Therefore, the appropriate standard of proof is that of "beyond a reasonable doubt”.

      References for Points in Headnotes
    [1] 17 Am Jur 2d, Contempt § 95 et seq.

    Use of affidavit to establish contempt. 79 ALR2d 657.
    [2] 20 Am Jur 2d, Courts §§ 101, 105.
    [3] 17 Am Jur 2d, Contempt § 78.

      Reversed and remanded.
    1. Contempt — Contempt Out of Court’s Presence —• Affidavits.
    Conduct not committed in the presence of the court, to be the proper subject of contempt proceedings, must be brought to the court’s attention by petition supported by affidavits of a person or persons who have personal knowledge of the acts; a trial judge can rely on facts stated in the submitted affidavits as well as legitimate inferences drawn therefrom in determining whether contempt was committed.
    2. Parties — Court Orders.
    A person made a party to a suit is bound by an order of the court if he is within that class of persons to be restrained and has knowledge or notice of the order.
    3. Contempt — Nuisance — Standard of Proof — Statutes.
    Contempt proceedings under the public nuisance statute are criminal in nature and require proof beyond a reasonable doubt for a conviction (MCL 600.3801 et seq.; MSA 27A.3801 et seq.).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy C. Scallen, Assistant Prosecuting Attorney, for the people.

      William W. Swor, for defendant
    Before: R. M. Maher, P.J., and M. F. Cavanagh and Cynar, JJ.
   Per Curiam:.

On October 31, 1978, Charles H. Wrightman (hereinafter defendant) was found to be in contempt of court by Wayne County Circuit Court Judge Peter B. Spivak for violating a permanent injunctive order abating a public nuisance which was entered by the judge June 17, 1977. Defendant was sentenced to six months in jail and ordered to pay a $1,000 fine. He now appeals as of right.

On appeal, defendant initially contends that the circuit court lacked in personam jurisdiction over him, which is an indispensable prerequisite to adjudging one to be in contempt. This contention has four bases: (1) the affidavits supporting the order to show cause were insufficient to sustain a finding of contempt; (2) defendant was not a party to the original proceeding from which the injunctive order issued; (3) it was never established that defendant was an agent or employee of the party defendants in the original action; and (4) the injunctive order of June 17, 1977, is void. We address these allegations seriatim.

Contumacious behavior not committed in the presence of the court, to be subject to punishment for contempt, must be brought to the court’s attention by petition supported by affidavit(s) of a person or persons who witnessed or have personal knowledge of the acts charged. If an inadequate affidavit is the predicate which underlies the contempt proceeding or if no affidavit at all accompanies the petition, the court lacks jurisdiction over the person of the alleged contemnor. Randall v Genesee Circuit Judge, 336 Mich 335, 338-340; 57 NW2d 906 (1953), In re Emery T Wood, 82 Mich 75, 82-83; 45 NW 113 (1890), In re Henry, 25 Mich App 45, 53; 181 NW2d 64, lv den 384 Mich 783 (1970). In determining whether an affidavit is sufficient, i.e., whether it states facts which constitute the commission of contemptuous conduct, a trial judge can rely on the stated facts as well as legitimate inferences drawn therefrom. Randall, supra, 340, In re Henry, supra, 56, inter alia.

The petition filed in the instant action charged a violation of the injunctive order: to wit, use of the premises for purposes of prostitution and lewdness. One of the affidavits supporting the petition was based upon the personal knowledge of the affiant and recited facts which, when taken together with all legitimate inferences drawn therefrom, presented prima facie evidence of contempt. Therefore, at least on this ground, the court was not without jurisdiction in this matter.

Defendant’s next claim, that, since he was neither a party to the original action nor shown in the affidavits filed herein to be an agent, servant, or employee of the named party defendants, the court lacked personal jurisdiction, is also wanting in merit. Defendant had actual notice of the injunction as averred in the petition in the within case and had been personally served with a copy of the injunctive order.

The fact that defendant has not been shown to be a named party to the original action or a named party’s servant is not necessarily a fatal flaw. Craig v Kelley, 311 Mich 167, 179; 18 NW2d 413 (1945). In Craig, a finding of contempt was not set aside, even where the defendant was not a named party in the original action nor named in a restraining order, where he was a husband of a named party and knew of the injunction. Actual knowledge plus personal service of the order upon defendant are present here. In addition, defendant had been a named party defendant in the original action to abate a nuisance, until dismissed therefrom because he was not an owner of the premises covered by the order.

The better view is that, once made a party to a suit, a person is bound by orders entered therein where he has knowledge or notice thereof and can fairly be said to be within that class of persons sought to be restrained. This is in essence an application of the doctrine of privity. Cf., United States v Hall, 472 F2d 261, 267 (CA 5, 1972). Here, defendant had both knowledge and notice of the injunction.

Moreover, his inclusion as a party defendant in the nuisance action is a strong indicium that he was within the class of persons whose conduct was sought to be restrained. We perceive no defect sufficient to divest the court of jurisdiction over defendant’s person under grounds (2) and (3) alleged hereinbefore by defendant.

We summarily reject defendant’s argument that the injunctive order itself was void in toto because the equitable owner of the premises affected thereby was not personally served in the nuisance action but served via publication. GCR 1963, 782.2, allows for substituted service of process by publication under GCR 1963, 106, in an action to abate a public nuisance, if personal service cannot be obtained. More importantly, GCR 1963, 782.4 specifically provides that jurisdiction to try the case is not lost, nor is power to enter a proper order of abatement and judgment against those defendants upon whom service is had, in the event that service upon all defendants named in the complaint is not made. Thus, as to those defendants personally served, as well as to the defendant herein, the injunctive order was in full effect.

We therefore conclude that the trial court had jurisdiction to act in personam with respect to defendant.

Next, we address the issue we find dispositive of this appeal. The question is whether the trial court appropriately characterized the contempt proceeding as civil or criminal and correctly applied the concomitant standard of proof in passing judgment on defendant.

Contempt proceedings under the public nuisance statute are criminal in nature, People v Goodman, 17 Mich App 175, 178; 169 NW2d 120 (1969), as the purpose of contempt proceedings arising out of violations of orders entered in such nuisance actions is to punish the defendant for his past disobedience. Such sanctions are characteristic of criminal contempt proceedings. Also indicative of criminal contempt is the imposition of a determinate sentence without any opportunity for the contemnor to purge himself of the contempt. State Bar of Michigan v Cramer, 399 Mich 116; 249 NW2d 1 (1976). When so sentenced, the defendant does not conditionally "carry the keys of [his] prison in [his] own pocket” and the action cannot be deemed civil in nature. Goodman, supra, 177, Cramer, supra, 127.

In this case, defendant was given a flat six-month unconditional sentence and a fine of $1,000. No possibility of purgation attended the sentence. However, the trial court never stated on the record the standard of proof he employed in determining defendant’s guilt vel non. In criminal contempt cases, proof of guilt must be beyond a reasonable doubt. Goodman, supra, 179, Jaikins v Jaikins, 12 Mich App 115, 121; 162 NW2d 325 (1968).

Compounding this ambiguity was the fact that during the proceedings the court declared that defense counsel should not assume that the court would not give defendant an opportunity to purge himself. The court further implied that the proceedings were civil by quoting from People ex rel Attorney General v Yarowsky, 236 Mich 169, 172; 210 NW 246 (1926), which language indicated that contempt proceedings relating to violations of decrees restraining the use of premises as houses of prostitution were not criminal. To the extent that the Court in Cramer, supra, relied on Goodman, supra, it must be taken to have overruled Yarowsky sub silentio. The lower court’s reliance on Yarowsky was thus misplaced.

Since by all indications in the record the lower court treated the contempt proceeding as civil in nature, with its attendant standard of proof "by a preponderance of the evidence”, Jaikins, supra, 121, we are constrained to reverse defendant’s conviction for contempt of court. Accordingly, we remand the cause for a new contempt proceeding at which the appropriate criminal standard of proof is to be utilized in deciding defendant’s guilt. Cf., People v Oliver, 407 Mich 857; 283 NW2d 502 rev’g 90 Mich App 144; 282 NW2d 262 (1979).

Reversed and remanded for further proceedings consistent with this opinion.

       The dismissal was based upon MCL 600.3810(1); MSA 27A.3810(1).


author: Per Curiam.

text:
    EDWARDS v HENRY
    Docket No. 78-4732.
    Submitted February 6, 1980, at Grand Rapids.
    Decided April 23, 1980.
    Leave to appeal denied, 409 Mich 932.
    Patricia Henry was evicted from the apartment she rented from Jerry Edwards. She owed $177.10 in back rent. Edwards brought an action in small claims court for rent and damages and received a default judgment of $193.30. Plaintiff garnished defendant’s checking account and pursuant to his writ of garnishment the bank removed $103.96 from defendant’s checking account to an escrow account and eventually delivered this amount to the district court. Defendant’s income was derived from ADC benefits and wages of $72 per week from her part time job. Defendant’s motion for post-judgment relief was granted. The district court determined that defendant’s ADC benefits were exempt from garnishment despite being comingled with wages in the checking account. The court ordered $43.96 of the garnished account returned to defendant and the remaining $60 paid to plaintiff in partial satisfaction of the judgment. The district court rejected defendant’s claim that the Consumer Credit Protection Act (CCPA) exempted from garnishment that portion of her account monies attributable to wages. Defendant appealed. The orders of the district court were affirmed, Kent Circuit Court, Stuart Hoffius, J. Defendant appeals by leave granted. The question on appeal is whether the CCPA shelters defendant’s funds in her checking account derived from wages from garnishment. Defendant contends that since recipients of government benefits are exempt, the CCPA should be interpreted so as to afford an equal degree of protection to funds earned in private employment. Held:

    Subchapter II of the CCPA does not shelter from garnishment that portion of a worker’s checking account funds attributable to her wages and falling within the statute’s maximum.
    Affirmed.
    References for Points in Headnote
    [1] 6 Am Jur 2d, Attachment and Garnishment § 176.
    Validity, construction, and application of §§ 301-307 of Consumer Credit Protection Act (15 USCS §§ 1671-1677) placing restrictions on garnishment of individual’s earnings. 14 ALR Fed 447.

      Garnishment — Consumer Credit Protection Act — Private Employment Wages — Exemptions — Statutes.
    The Consumer Credit Protection Act does not shelter from garnishment that portion of a worker’s checking account funds attributable to her wages and falling within the statute’s maximum. (15 USC 1671-1677).

      Legal Aid of Western Michigan (by Michael Nelson), for defendant.
    Before: Danhof, C.J., and R. B. Burns and Mackenzie, JJ.
   Per Curiam.

The defendant was evicted from the apartment she rented from the plaintiff, leaving the rent in arrears in the amount of $177.10. The plaintiff brought an action in small claims court for the rent and other damages and received a default judgment of $193.30, including costs. The plaintiff immediately sought garnishment of the defendant’s checking account in the Michigan National Bank. Pursuant to the writ of garnishment, the bank removed the $103.96 in the defendant’s checking account to an escrow account, and eventually delivered that amount to the district court.

The defendant’s income at the time was derived from ADC benefits and wages of $72 per week from her part time job. Acting upon the defendant’s motion for post-judgment relief, the district court determined that the defendant’s ADC benefits were exempt from garnishment despite their being comingled with wages in the checking account, citing Pease v North American Finance Corp, 69 Mich App 165; 244 NW2d 400 (1976). Applying a formula based on the relative amounts of the defendant’s benefits and wages, the court ordered $43.96 of the garnished account returned to the defendant and the remaining $60 paid to the plaintiff in partial satisfaction of the judgment. The remainder of the judgment was settled by a large voluntary payment from the defendant and a court ordered plan for discharging the balance in installments.

The district court rejected the defendant’s claim that subchapter II of the Consumer Credit Protection Act (CCPA), 15 USC 1671-1677, exempted from garnishment that portion of her account monies attributable to her wages. On direct appeal to the circuit court, the orders of the district court were affirmed. She appeals by leave granted. The plaintiff has filed no responsive brief.

The CCPA provides, in pertinent part:

"(a) The Congress finds:
"(1) The unrestricted garnishment of compensation due for personal services encourages the making of predatory extensions of credit. Such extensions of credit divert money into excessive credit payments and thereby hinder the production and flow of goods in interstate commerce.
"(2) The application of garnishment as a creditors’ remedy frequently results in loss of employment by the debtor, and the resulting disruption of employment, production, and consumption constitutes a substantial burden on interstate commerce.
"(3) The great disparities among the laws of the several States relating to garnishment have, in effect, destroyed the uniformity of the bankruptcy laws and frustrated the purposes thereof in many areas of the country.
"(b) On the basis of the findings stated in subsection (a) of this section, the Congress determines that the provisions of this subchapter are necessary and proper for the purpose of carrying into execution the powers of the Congress to regulate commerce and to establish uniform bankruptcy laws.” 15 USC 1671.
"For the purposes of the subchapter:
"(a) The term 'earnings’ means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.
"(b) The term 'disposable earnings’ means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.
"(c) The term 'garnishment’ means any legal or equitable procedure through which the earnings of any individual are required to be withheld for payment of any debt.” 15 USC 1672.
"(a) Except as provided in subsection (b) of this section and in section 1675 of this title, the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed
"(1) 25 per centum of his disposable earnings for that week, or
"(2) the amount by which his disposable earnings for that week exceed thirty times the Federal minimum hourly wage prescribed by section 206(a)(1) of Title 29 in effect at the time the earnings are payable, whichever is less. In the case of earnings for any pay period other than a week, the Secretary of Labor shall by regulation prescribe a multiple of the Federal minimum hourly wage equivalent in effect to that set forth in paragraph (2).” 15 USC 1673.

The question on appeal is whether subchapter II of the CCPA shelters from garnishment that portion of a worker’s checking account funds attributable to her wages and falling within the statute’s maximum.

The defendant urges us to follow the lead of a Utah county court and answer the question in the affirmative. We find, however, that the reported cases available to us are much more persuasive and do not favor the defendant’s position. Three of these cases are particularly notable, each making a slightly different point against extension of the statute’s reach to the "wages” filling an earner’s account.

John O Melby & Company Bank v Anderson, 88 Wis 2d 254; 276 NW2d 274 (1979), examined the findings and statements of purpose set forth in 15 USC 1671 and concluded that the Congress had focused in subchapter II on abuse of the wage garnishment remedy by the consumer credit industry and the injuries that befall debtors whose employees are compelled to withhold wages. The Anderson court also commented that the statute’s reference to the "workweek” and "pay period” as bases for computing the maximum allowable garnishment served to illustrate the congressional intent to affect only the passing of wages from employer to employee.

Our question was also answered in the negative by Dunlop v First National Bank of Arizona, 399 F Supp 855 (D Ariz, 1975). The district court in that case pointed out that the provisions considered here were only part of a larger single enactment, which in subchapters I and. Ill, 15 USC 1601-1665 and 15 USC 1681-1681t, "specifically addressees] * * * problem areas within which financial institutions have a role to play”. That court continued, "Where Congress has specifically used a term * * * in certain places within the statute * * * and excluded it in another * * * the court should not read that term into the excluded section”. 399 F Supp at 856.

The Dunlop court pointed out that the "administrative red tape” involved in following portions of weekly paychecks into bank accounts would be "staggering”. 399 F Supp at 856, fn 7. This concern was more directly before the court in Usery v First National Bank of Arizona, 586 F2d 107 (CA 9, 1978), in which the Secretary of Labor, seeking to enforce subchapter II under the authority granted him by 15 USC 1676, sought to compel a bank to calculate the portion of wage earners’ accounts attributable to protected wages before honoring garnishment orders. The court made virtually the same analysis of the CCPA that was set out in Anderson and Dunlop. In considering the only textual support claimed by the defendant here, the court said:

"The definition of earnings as compensation 'paid or payable’ in section 302(a) is not inconsistent with this view, and is quite consistent with an interpretation that confines the duty to apply the exemption exclusively to the employer or those in the position of the employer. The term 'paid’ as applied to the employer will cover those amounts which have been accrued on the employer’s books, and thus are 'paid’ in the accounting sense, even though such funds have not yet been transmitted to the employee. This construction is an adequate explanation for the use of the terms 'paid or payable.’ Moreover, we find it unreasonable to use the single word 'paid’ as the basis for the sweeping extension of the Act advocated by the Department.” 586 F2d at 110.

To the secretary’s claim that his interpretation of the statute that he was charged to enforce was entitled to deference, the Usery court responded, "[T]he agency’s interpretation departs so widely from the statutory mandate that it is explicable more easily as an organic reflex to extend its own jurisdiction than as a reasoned interpretation of the statute”. 586 F2d at 111.

The defendant points out that statutory restrictions on garnishment of money paid or payable as veterans’ or social security benefits have been held to protect those funds on deposit, citing Philpott v Essex County Welfare Board, 409 US 413; 93 S Ct 590; 34 L Ed 2d 608 (1973), and Porter v Aetna Casualty & Surety Co, 370 US 159; 82 S Ct 1231; 8 L Ed 2d 407 (1962). It is her claim that the CCPA should be interpreted so as to afford an equal degree of protection to funds earned in private employment.

This argument was rejected in each of the three cases we have considered in this opinion. The Usery Court pointed out that the statute protecting veterans’ benefits expressly provides shelter "either before or after receipt by the beneficiary”. 38 USC 3101a. It went on to comment that 42 USC 407, at issue in Philpott, protects social security payments from "execution, levy, attachment, garnishment, or other legal process”, while the CCPA refers only to garnishment of wages. 586 F2d at 111.

We believe that there exists a significant difference between the purposes underlying the protection of government benefits and that upon which the CCPA is based. Recipients of government benefits are by definition deemed to be entitled to them by need or merit. In a sense, the government has an interest in the money it distributes even after it has passed into the hands of the recipient. Veterans’ benefits are also exempt from state and Federal taxation. In that connection, the Supreme Court of the United States has said:

"These payments are intended primarily for the maintenance and support of the veteran. To that end neither he nor his guardian is obliged to keep the moneys on his person or under his roof. As the immunity from taxation is continued after the payments are received, the usual methods of receipt must be deemed available so that the amounts paid by the Government may be properly safeguarded and used as the needs of the veteran may require.” Lawrence v Shaw, 300 US 245, 250; 57 S Ct 443; 81 L Ed 623 (1937).

In conclusion, we note that where there exists no split of authority in the Federal court concerning the interpretation of a Federal statute, state courts should be very cautious in differing with the prevailing view in that system, if they do not feel themselves precluded altogether from doing so. The CCPA has never, to our knowledge, been afforded by a Federal court the reach the defendant would ask to give it. For this reason and for the reasons set forth above, we affirm the lower court.

No costs, a public question.


text:
    PEOPLE v ROBERTS
    Docket No. 78-5153.
    Submitted March 6, 1980, at Grand Rapids.
    Decided April 23, 1980.
    Jerrold T. Roberts was convicted, on his plea of guilty, of assault with intent to commit sexual penetration, Kent Circuit Court, Roman J. Snow, J. Defendant appeals, alleging that because the prosecutor had not yet brought habitual offender charges against the defendant, the prosecutor’s promise to forego such charges in exchange for the defendant’s plea rendered the plea bargain illusory. Held:

    The plea bargain was not illusory. At the time that the plea bargain was made the defendant was in fact a potential subject of habitual offender charges.
    Affirmed.
    Criminal Law — Plea of Guilty — Plea Bargains — Habitual Offenders — Illusory Plea Bargain.
    A defendant’s plea bargain is not illusory where, as a part of the bargain, the prosecutor promises to forego habitual offender proceedings against the defendant and where, at the time the plea bargain is made, the defendant is in fact a potential subject of habitual offender charges.
    References for Points in Headnote
    [1] 21 Am Jur 2d, Criminal Law §§ 484-496.
    39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 22.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Chief Appellate Attorney, for the people.

      Buth, Wood & Weidaw, for defendant on appeal.
    Before: Allen, P.J., and M. F. Cavanagh and C. W. Simon, Jr., JJ._

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

Following plea negotiations, defendant entered a plea of guilty to a charge of assault with intent to commit sexual penetration, contrary to MCL 750.520g(l); MSA 28.788(7)(1). Following sentence, this appeal follows as of right.

Citing People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), defendant urges reversal. He alleges that since part of the plea bargain involved the prosecutor’s promise to foresake habitual offender proceedings, his plea was the product of an illusory bargain. We reject his argument for the reasons set forth in People v Hutcherson, 96 Mich App 365; 292 NW2d 466 (1980).

Affirmed.


text:
    DOE v OETTLE
    Docket No. 78-5271.
    Submitted March 12, 1980, at Lansing.
    Decided April 23, 1980.
    Jane Doe, an unmarried teen-age mother whose child has been removed from her custody, and others brought an action for a declaratory judgment against Kenneth Oettle personally and in his capacity as director of the Washtenaw County Department of Social Services and others, claiming a denial of due process and equal protection by the failure of Washtenaw County to provide a group home for single parents and their children. The Washtenaw Circuit Court, Patrick Conlin, J., granted summary judgment in favor of the defendants. Plaintiffs appeal. Held:

    1. Because the probate court, a court of competent jurisdiction, had already dealt with the custody issue the plaintiffs could not properly invoke the jurisdiction of the circuit court.
    2. There is no absolute substantive due process right to preservation of the family unit.
    3. The plaintiffs were not denied equal protection because of poverty. There is no showing that the plaintiffs have been treated any differently than any others in similar circumstances regardless of financial status.
    4. The statute allowing the probate court to assume jurisdiction over children of neglectful parents is reasonably related to the objective of acting in the best interests of the children.
    5. Neither the Social Security Act nor the Juvenile Code creates an absolute right to familial care or a justiciable cause of action.
    Affirmed.
    References for Points in Headnotes
    [1] 20 Am Jur 2d, Courts § 128 et seq.

    [2] 42 Am Jur 2d, Infants § 28.
    59 Am Jur 2d, Parent and Child § 42.
    [3] 59 Am Jur 2d, Parent and Child § 39.
    [4] 16A Am Jur 2d, Constitutional Law § 756.
    [5] 16A Am Jur 2d, Constitutional Law § 746.

      1. Courts — Jurisdiction — Child Custody — Appeal.
    The jurisdiction of a circuit court may not properly be invoked in an action against the county to challenge a probate court’s child custody order because another court of competent jurisdiction, the probate court, has already dealt with the custody issue; the proper procedure for such a challenge is a timely appeal of the probate court order.
    2. Parent and Child — Child Custody — Procedural Due Process.
    Parties to a child custody dispute are entitled to procedural due process, specifically the right to counsel and to transcripts, before family ties are severed.
    3. Parent and Child — Substantive Due Process — Custodial Rights.
    The right of substantive due process does not encompass a right to preservation of the family unit; parents’ custodial rights are not absolute rights and they may be terminated.
    4. Constitutional Law — Equal Protection.
    A person is not denied equal protection where a law or procedure complained of would be applied similarly to any other persons under the same circumstances or conditions.
    5. Constitutional Law — Equal Protection — Social Legislation — Rational Basis.
    Social legislation creating a classification will be upheld if the classification has a rational basis.

      Pauline R. Rothmeyer, for plaintiffs.

      Frances Prevas, Assistant Corporation Counsel, for defendants.
    Before: Mackenzie, P.J., and Bashara and D. C. Riley, JJ.
   Per Curiam.

Plaintiffs, Jane Doe, an unmarried teen-age mother whose child has been removed from her custody, her daughter, Jean Doe, Robert Poe, an infant who has been placed in foster care away from his mother, and Pauline Rothmeyer, guardian ad litem for Robert Poe, and "all others similarly situated in Washtenaw County”, brought suit on November 9, 1979, claiming a constitutional and statutory right to treatment as family units. Plaintiffs alleged that they were being deprived of equal protection and due process because no group home for single parents and their children has been established in Washtenaw County. The court granted defendants’ motion for summary judgment stating that the jurisdiction to terminate parental rights rests solely with the probate court and that there were no constitutional or statutory rights violated based on the lack of a group home. We affirm.

We agree with the lower court that if plaintiffs wanted to challenge the probate order denying them custody of their children, the proper procedure would be to timely appeal the probate court’s decision. See GCR 1963, 701; MCL 712A.22; MSA 27.3178(598.22). Since another court of competent jurisdiction has dealt with the custody issue, the circuit court’s jurisdiction cannot properly be invoked. See Jewell v Grand Traverse County Probate Judge, 51 Mich App 134; 214 NW2d 717 (1974).

Plaintiffs claim that their due process rights have been violated. Michigan does recognize the right to procedural due process before family ties are severed, specifically, the right to counsel and transcripts. See Reist v Bay Circuit Judge, 396 Mich 326; 241 NW2d 55 (1976), People v Brown, 49 Mich App 358; 212 NW2d 55 (1973). However, plaintiffs have not alleged any procedural violation. What is asserted is a broader right of substantive due process; a claimed absolute right to protection of the family unit.

While parents’ custodial rights are protected by the Fifth and Fourteenth Amendments, May v Anderson, 345 US 528; 73 S Ct 840; 97 L Ed 1221 (1953), they are not absolute rights and may be terminated. In the Matter of LaFlure, 48 Mich App 377, 386-387; 210 NW2d 482 (1973). The Sixth Circuit has refused to recognize an absolute substantive due process right "to live together as a family”. In Huynh Thi Anh v Levi, 586 F2d 625 (CA 6, 1978), a Vietnamese grandmother and uncle sought custody of their relatives’ children who had been placed in Michigan foster homes during "Operation Baby-Lift”. While the court recognized that, in the absence of natural parents, alien relatives might be better entitled to the children than foster parents, it noted that this is "a matter of family law, not of substantive due process”. Id., 632. The Second Circuit similarly rejected any substantive family integrity right in Black v Beame, 550 F2d 815 (CA 2, 1977). We too must agree that the right of substantive due process does not encompass a right to preservation of the family unit.

Plaintiffs further contend that they are being deprived of equal protection because of poverty. There is no denial of equal protection when a law or course of procedure would be similarly applied to any other persons under the same circumstances or conditions. Moore v Spangler, 401 Mich 360, 370; 258 NW2d 34 (1977). The instant plaintiffs have failed to show how they have been treated any differently than any other teen-age mothers, regardless of their financial status.

Social legislation will be upheld if the challenged classification has a rational basis. Dandridge v Williams, 397 US 471, 484-485; 90 S Ct 1153; 25 L Ed 2d 491 (1970). Here the classification (neglectful parents) and the means (removing a child from custody) are reasonably related to the objective of acting in the best interest of the child. See MCL 712A.2; MSA 27.3178(598.2), In the Matter of Rebecca Oakes, 53 Mich App 629; 220 NW2d 188 (1974).

Finally, plaintiffs assert a statutory right to familial care, citing the Social Security Act, 42 USC 601, and the preamble to the Juvenile Code, MCL 712A.1; MSA 27.3178(598.1). We believe that neither section creates an absolute right or a justiciable cause of action. See Black, supra.

Since no constitutional or statutory rights of plaintiffs have been violated, summary judgment was properly entered by the lower court. We believe that plaintiffs’ concerns about the necessity for a group home and parental counseling are best directed to the Legislature and we will not interfere within a judicial context.

Affirmed.

       "For the purpose of encouraging the care of dependent children in their own homes or in the homes of relatives by enabling each State to furnish financial assistance and rehabilitation and other services, as far as practicable under the conditions in such State, to needy dependent children and the parents or relatives with whom they are living to help maintain and strengthen family life and to help such parents or relatives to attain or retain capability for the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection, there is authorized to be appropriated for each fiscal year a sum sufficient to carry out the purposes of this part.” 42 USC 601.

       "This chapter shall be liberally construed to the end that each child coming within the jurisdiction of the court shall receive such care, guidance and control, preferably in his own home, as will be conducive to the child’s welfare and the best interest of the state and that when such child is removed from the control of his parents the court shall secure for him care as nearly as possible equivalent to the care which should have been given to him by them.” MCL 712A.1; MSA 28.3178(598.1).


text:
    BROWN v PRISEL
    Docket No. 43719.
    Submitted March 5, 1980, at Detroit.
    Decided April 23, 1980.
    Mercedes Brown and Erwin Prisel purchased real property as tenants by the entireties during their marriage. Erwin obtained a Nevada divorce. The judgment was silent as to the property interests of the parties. Erwin retained control of this Michigan property, collecting the rents and profits therefrom. His will left all his assets to his second wife, Florence Prisel. Mercedes filed a claim against Erwin’s estate requesting full title to the Michigan property as Erwin’s survivor. Wayne Circuit Court, Ernest C. Boehm, J., ruled that she was entitled to only a one-half interest in the property as a tenant in common. Plaintiff appeals. Held:

    Every husband and wife owning real estate as joint tenants or as tenants by the entireties shall, upon being divorced, become tenants in common of such real estate. The dissolution of a marital relationship necessitates a change in the title of real property because the requisite "unity of person” necessary to sustain a tenancy by the entireties no longer exists.
    Affirmed.
    1. Husband and Wipe — Divorce — Real Estate — Joint Ownership — Property Settlements — Tenants in Common — Statutes.
    A statute provides that every husband and wife owning real estate as joint tenants or as tenants by the entireties shall, upon being divorced, become tenants in common of such real estate, unless the ownership thereof is otherwise determined by the decree of divorce; the purpose of the statute is to prevent the clouding of title in the event that a divorce decree does not render a property determination (MCL 552.102; MSA 25.132).
    2. Husband and Wipe — Divorce — Property — Joint Ownership — Changes in Title — "Unity op Person”.
    Property acquired in the name of a husband and wife indicates an intent that both parties should own it together; however, a dissolution in the marital relationship necessitates a change in title because the requisite "unity of person” necessary to sustain a tenancy by the entireties no longer exists.

      Reference for Points in Headnotes
    [1-3] 41 Am Jur 2d, Husband and Wife § 106.

      3. Divorce — Husband and Wife — Substituted Service — Property — Joint Ownership — Changes in Title.
    An ex parte divorce obtained by substituted service on a defendant is valid absent other irregularities; a valid judgment of divorce, regardless of where it was obtained, operates to trigger the statute which provides that a husband and wife owning real estate jointly or by the entireties shall, upon being divorced, become tenants in common of such real estate.

      Kiefer, Allen & Cavanagh, for plaintiff.

      Cooney & Cooney, P.C., for defendant.
    Before: D. E. Holbrook, Jr., P.J., and R. M. Maher and Cynar, JJ.
   Per Curiam.

Plaintiff and Erwin Prisel were married on April 16, 1942, in Detroit, Michigan. During the marriage, they purchased real property as tenants by the entireties in Wyandotte, Michigan. They later moved out of state and Erwin Prisel obtained a Nevada divorce on June 15, 1966. The judgment awarded custody and child support to plaintiff, but was silent as to the property interests of the parties. Erwin Prisel retained control of the Michigan realty, collecting the rents and profits therefrom. His will left all his assets to his second wife, Florence Prisel.

Plaintiff filed a claim against the estate requesting full title to the Michigan property as survivor of Erwin Prisel. She appeals as of right the lower court’s ruling that she was entitled to only a one-half interest in the property as a tenant in common.

MCL 552.102; MSA 25.132 provides:

"Sec. 2. Every husband and wife owning real estate as joint tenants or as tenants by entireties shall, upon being divorced, become tenants in common of such real estate, unless the ownership thereof is otherwise determined by the decree of divorce.”

The purpose of the statute is to prevent the clouding of title in the event that a divorce decree does not render a property determination. When title to property is taken in the name of a husband and wife, it is an indication of intent that both parties should own it together. However, a dissolution in the marital relationship necessitates a change in title because the requisite "unity of person” necessary to sustain a tenancy by the entireties no longer exists. Christofferson v Christofferson, 363 Mich 421; 109 NW2d 848 (1961).

Plaintiff cites numerous cases which held that a divorce judgment in one state cannot affect title to out-of-state property, without personal service on the defendant. These cases are not applicable to the instant situation as the Nevada judgment did not purport to award property to either spouse. It merely terminated the marriage. It has long been held that an ex parte divorce obtained by substituted service on a defendant is valid absent other irregularities. Owen v Owen, 389 Mich 117, 120; 205 NW2d 181 (1973). The validity of the divorce is undisputed by the parties. The Nevada divorce is therefore entitled to full faith and credit in Michigan.

The constitutionality of the Michigan statute is not at issue. Plaintiff is not deprived of property. The form of shared ownership is changed to a tenancy in common because the requisite "unity of person” necessary to sustain a tenancy by the entireties no longer exists. The language and purpose of the statute indicate that its application should not be limited to divorce judgments entered in Michigan. A valid judgment of divorce, regardless of where it was obtained, operates to trigger the statute.

Affirmed.


text:
    PEOPLE v MAHONE
    Docket No. 78-2205.
    Submitted February 14, 1980, at Detroit.
    Decided March 19, 1980.
    Defendant, Alyna Mahone, was charged in an information with first-degree murder and possession of a firearm during the commission of a felony, specifically, first-degree murder. At the conclusion of a preliminary hearing defendant was bound over for trial on second-degree murder and felony-firearm. He was convicted in Recorder’s Court of Detroit, John Patrick O’Brien, J., of involuntary manslaughter and felony-firearm. Subsequent to the findings, the court allowed the prosecutor to amend the information to conform the felony-firearm charge to the verdict. Defendant appeals. Held:

    1. A defendant who, armed with a rake, chased a victim who was armed with a gun, wrestled the gun from him and shot and killed him may properly be found guilty of both involuntary manslaughter and felony-firearm.
    2. A trial court may, in its discretion, allow the amendment of an information at any time before, during or after trial and the Court of Appeals will not reverse a decision allowing amendment unless it finds that the defendant was prejudiced in his defense or that a failure of justice resulted.
    3. The felony-firearm statute is not unconstitutionally vague.
    Affirmed.
    1. Criminal Law — Felony-Firearm — Involuntary Manslaughter — Possession of a Firearm.
    A defendant who, armed with a rake, chased a victim who was armed with a gun, wrestled the gun from him and shot and killed him may properly be found guilty of both involuntary manslaughter and felony-firearm.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 189.
    [2] 41 Am Jur 2d, Indictments and Informations § 201.
    Power of court to make or permit amendment of indictment with respect to allegations as to time. 14 ALR3d 1297.
    [3] 21 Am Jur 2d, Criminal Law § 17.

      2. Criminal Law — Information — Amendment of Information — Appeal.
    A trial court may, in its discretion, allow the amendment of an information at any time before, during or after trial and the Court of Appeals will not reverse a decision allowing amendment unless it finds that the defendant was prejudiced in his defense or that a failure of justice resulted.
    3. Criminal Law — Felony-Firearm — Due Process — Statutes — Vagueness.
    The felony-firearm statute is not unconstitutionally vague (MCL 750.227b; MSA 28.424[2]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Michael Lehto, Assistant Prosecuting Attorney, for the people.

      Milton R. Henry, for defendant.
    Before: Bronson, P.J., and Beasley and D. C. Riley, JJ.
   Per Curiam.

Defendant, Alyna Mahone, was charged with first-degree murder, in violation of MCL 750.316; MSA 28.548, and possession of a firearm during the commission of a felony, specifically, first-degree murder, in violation of MCL 750.227b; MSA 28.424(2).

At the preliminary examination, defendant was bound over on second-degree murder, MCL 750.317; MSA 28.549, and felony-firearm. After a bench trial, defendant was found guilty of involuntary manslaughter and felony-firearm. He was sentenced to five years probation, the first six months to be served in the Wayne County jail, on count one and the mandatory two years imprisonment on count two. Defendant now appeals as of right, raising four issues.

Defendant first argues that, since the trial court found that he did not possess a gun prior to shooting the victim, he cannot be found guilty of felony-firearm. We find this argument to be without merit.

In this case, the defendant chased the victim with a rake. The victim drew a gun, which defendant wrestled from him, pointed and fired, killing him. Defendant reasons that since he did not embark upon this crime with a gun in his possession, he cannot be guilty of felony-firearm. We do not agree.

The felony-firearm statute provides:

"(1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years.”

A plain reading of this statute leads to the conclusion that anyone who has in his possession a firearm at the time he commits or attempts to commit a felony shall be guilty of felony-firearm. The statute does not state, and we do not interpret it to state, that a defendant must possess a firearm prior to the commission of a felony.

In this case, it is clear that at the time that defendant shot his victim, he possessed a firearm. Accordingly, the defendant’s argument on this issue is without merit.

Defendant next argues that the trial court erred in allowing the prosecutor to amend the information after the trial court found the defendant guilty of both involuntary manslaughter and felony-firearm. We do not agree. In this case, the information charged defendant with first-degree murder and possession of a firearm during the commission of a felony, specifically, first-degree murder. Defendant was bound over for trial on second-degree murder and felony-firearm, however, the information was not corrected. After the trial court found defendant guilty of involuntary manslaughter and felony-firearm, defendant’s attorney moved to dismiss the felony-firearm charge on the ground that the information specified the underlying felony as first-degree murder, which had not been proven. The trial court rejected this argument and allowed the amendment.

The general rule is that a trial court may allow the amendment of an information at any time before, during, or after trial. This Court will not reverse such a decision unless it finds that the defendant was prejudiced in his defense or that a failure of justice resulted.

A defendant is not prejudiced by an amendment to the information to cure a defect in the offense charged when the original information was sufficient to inform the defendant and the court of the nature of the charge. In this case, we find that the original information was sufficient to inform the defendant of the charge. Accordingly, we find no prejudice to defendant and no reversible error.

Defendant next argues that his convictions of both involuntary manslaughter and felony-firearm violate the double jeopardy clause of the United States and Michigan Constitutions. This argument is without merit. See, Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979).

Defendant’s last argument is that the felony-firearm statute is void for vagueness. We do not agree. See, People v Jackson, 94 Mich App 24; 287 NW2d 357 (1979).

Affirmed.

       MCL 750.227b; MSA 28.424(2).

      MCL 767.76; MSA 28.1016, MCL 767.2; MSA 28.942.

        People v Corbell, 77 Mich App 691; 259 NW2d 193 (1977), People v Bruci, 35 Mich App 358; 192 NW2d 634 (1971), lv den 387 Mich 788 (1972).

       US Const, Am V, Mich Const 1963, art 1, § 15.


text:
    PEOPLE v WOODS
    Docket No. 43746.
    Submitted February 5, 1980, at Lansing.
    Decided April 24, 1980.
    Charlie L. Woods was convicted of first-degree murder in the Genesee Circuit Court, Harry B. McAra, J. The defendant was sentenced to life imprisonment. During trial the defendant sought an advisory ruling as to whether or not evidence of his prior conviction for second-degree murder would be admissible for impeachment purposes if he testifed on his own behalf. The trial court concluded that the similarity of the two crimes required admission of evidence of the prior conviction. Defendant did not testify and now appeals. Held:

    Failure of the trial court to exercise discretion by balancing the competing factors in determining whether evidence of a prior conviction would be admissible for impeachment purposes and merely considering the similarity of the two crimes constitutes reversible error.
    Reversed and remanded.
    Criminal Law — Evidence — Prior Convictions.
    A trial judge’s failure to exercise discretion by balancing the competing factors in determining whether to admit for impeachment purposes evidence of a prior conviction of defendant and merely concluding that the similarity of the crime in the prior conviction to the crime charged required admission constitutes reversible error.
    References for Points in Headnote
    [1] 81 Am Jur 2d, Witnesses § 569.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Edwin R. Brown, Assistant Prosecuting Attorney, for the people.

      William Grossman, for defendant on appeal.

      Before: Cynar, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   Per Curiam.

Defendant appeals by right from his conviction by a jury of first-degree murder, MCL 750.316; MSA 28.548. The sentence imposed on defendant was life imprisonment.

The first of three issues raised by defendant concerns the admission of evidence of defendant’s prior conviction of second-degree murder. Defense counsel, during trial, asked the trial court for an advisory ruling as to whether or not evidence of defendant’s prior conviction would be admissible for impeachment purposes. The record discloses that the trial court mistakenly concluded that the similarity of the two crimes required admission of evidence of the prior conviction. The court stated:

"But on a like crime I think the law is, in a murder case, that I would allow it just if there’s any similarity between this case and the case where he pled guilty to * * * >>

Defendant did not testify. This constitutes reversible error. People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979), People v Crawford, 83 Mich App 35, 40; 268 NW2d 275 (1978), MRE 609.

Defendant’s remaining claims of error are not meritorious.

Reversed and remanded for new trial.


text:
    ROESE CONTRACTING CORPORATION, INC v ZGLICZYNSKI
    Docket No. 44241.
    Submitted February 5, 1980, at Lansing.
    Decided April 24, 1980.
    Edward W. Zgliczynski borrowed a front-end loader from his employer, Róese Contracting Corporation, Inc., to perform some repair work at a marina in which he had an interest. While driving the loader to the marina he was involved in an accident with an automobile. The owner of the automobile brought an action against Zgliczynski and Róese Contracting. Róese Contracting and its insurer, Commercial Union Assurance Corporation, brought a declaratory action against Zgliczynski and the insurer of the marina, Auto-Owners Insurance Company, to determine which of the insurers had a duty to defend the suit. The Arenac Circuit Court, Carl L. Horn, J., entered a judgment in which it held that Commercial Union had a duty to defend Zgliczynski in the related action. Plaintiffs appeal. Held:

    The language defining "premises” in the Auto-Owners policy applies to off-premises operations that are necessary or incidental to the maintenance of the premises. Therefore, the Auto-Owners policy applies in this case. Because it does, an "other insurance” clause in the Commercial Union policy precludes coverage under that policy.
    Reversed.
    1. Appeal — Declaratory Judgment — De Novo Review.
    The Court of Appeals reviews a declaratory judgment action de novo, and will sustain the findings of the trial court unless convinced that it would have ruled differently had it been in the trial court’s position.
    References for Points in Headnotes
    [1] 4 Am Jur 2d, Appeal and Error § 119.
    5 Am Jur 2d, Appeal and Error §§ 703, 772, 872.
    [2] 44 Am Jur 2d, Insurance § 1430.
    62 Am Jur 2d, Premises Liability § 5.
    Premises Liability Insurance: coverage as extending to liability or injuries or damages caused by product sold or rented by the insured and occurring away from the insured premises. 62 ALR3d 889.

      2. Insurance — Insured Premises — Off-Premises Operations.
    An insurance policy on a premises which declares that it covers operations which are necessary or incidental to the operations conducted on the insured premises thereby extends coverage to off-premises risks which arise from such necessary and incidental operations conducted off the premises.

      Davidson, Breen & Doud, P.C. (by John F. O’Grady), for plaintiffs.

      Smith & Brooker, P.C. (by Thomas A. Connolly), for Auto-Owners Insurance Company.
    Before: Cynar, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   Per Curiam.

Plaintiffs claim this appeal by right from the judgment of the lower court which denied their requested relief in their complaint for a declaratory judgment and held that plaintiff Commercial Union had a duty to defend defendant Zgliczynski in a related lawsuit.

The incident around which this litigation centers was an accident involving a car driven by one individual and a front-end loader driven by defendant Zgliczynski. This suit was brought to determine which of two insurance companies’ policies should cover the accident.

Zgliczynski, at the time of the accident, was employed by Róese Contracting. He was also engaged in a partnership with his grandmother to operate the Pointe Au Gres Marina. In the operation of the marina, Zgliczynski undertook the reconstruction of a seawall. Towards that end he arranged to utilize some broken concrete from a farm located roughly two and one-half miles from the marina. In order to transport the concrete, Zgliczynski borrowed, free of charge, the loader and several trucks from his employer, Róese Contracting. As a result of the accident, which occurred while Zgliczynski was returning to the marina using the loader with which he was to position the concrete that night, suit was brought against Zgliczynski and Róese Contracting. At that time, Róese Contracting was insured by co-plaintiff Commercial Union, and co-defendant Auto-Owners had issued a premises liability policy to Zgliczynski’s partnership in the marina. The declaratory action followed upon Auto-Owners’ refusal to defend Zgliczynski as demanded by Commercial Union. Defendant Zgliczynski cross-claimed against Auto-Owners, setting the scene for this appeal.

The policy isued by Auto-Owners to the marina partnership applied to the following risk:

"DIVISION 1. Premises-Operations in Progress. The ownership, maintenance or use of the premises, and all operations during the policy period which are necessary or incidental thereto.”

Plaintiffs contend that the operation of the loader was covered under this provision. Auto-Owners argues that the following definition of "premises” in the policy limited coverage to the marina area only:

"(c) 'Premises’, not otherwise qualified, means (1) the premises designated in the declarations, including buildings and structures thereon and the ways immediately adjoining, * *

The policy issued to Róese Contracting by Commercial Union covered the following "Persons Insured”:

"Each of the following is an insured under this insurance to the extent set forth below: * * * (e) with respect to the operation, for the purpose of locomotion upon a public highway, of mobile equipment registered under any motor vehicle registration law, (i) an employee of the named insured while operating any such equipment in the course of his employment, and (ii) any other person while operating with the permission of the named insured any such equipment registered in the name of the named insured and any person or organization legally responsible for such operation, but only if there is no other valid and collectible insurance available, either on a primary or excess basis, to such person or organization. ” (Emphasis added.)

The Auto-Owners policy contained an identical provision with respect to the final underlined phrase.

Without stating a reason as to why the policy of Commercial Union did provide coverage, the trial court ruled that the Auto-Owners policy could not apply under the policy language quoted above as 'maintenance’ or 'operations which are necessary and incidental’ to maintenance of the premises. Our review of the declaratory judgment is de novo, and the findings below must be sustained unless we conclude that we would have ruled differently, sitting in the trial court’s stead. Salvador v Connor, 87 Mich App 664, 675-676; 276 NW2d 458 (1978), lv den 406 Mich 966 (1979).

We do rule differently, finding that the language defining premises in Auto-Owners’ policy can be interpreted to mean that off-premises operations necessary or incidental to the maintenance of the premises are covered by that policy. Support for this construction is contained in 11 Couch on Insurance 2d, § 44:301, p 716, where it is stated:

"Where the policy expressly covers not only the risks involved in the use of designated premises, but also declares that it covers operations which are necessary or incidental to the operations conducted on the insured premises, there is coverage of off-premises risks which arise from such necessary and incidental operations conducted off the premises.”

Given this ruling, it is apparent that the "other insurance” clause in Commercial Union’s policy precludes coverage under its terms. Moreover, we find no language in that policy that would make it applicable to the accident under these circumstances. Also, Zgliczynski was a named insured in the Auto-Owners policy.

Reversed. Appellants may tax costs.