author: Per Curiam. N. J. Kaufman, P.J.

text:
    PEOPLE v BLOOM
    Docket No. 78-5152.
    Submitted September 4, 1979, at Detroit.
    Decided November 7, 1979.
    Bernard J. Bloom was convicted of delivery of heroin, Kent Circuit Court, George V. Boucher, J. Defendant appeals, alleging that the trial court erred by admitting testimony of an informer that the defendant had made several prior sales of heroin to the informer. Held:

    Evidence of a defendant’s prior bad acts should not be admitted unless certain conditions are met. In this case those conditions were not satisfied, therefore, admission of the informer’s testimony was error.
    Reversed and remanded.
    N. J. Kaufman, P.J., concurred on the basis of a Supreme Court decision holding that where a defendant has denied participation in the crime charged or in any prior similar acts the establishment of intent on the occasion of the crime charged is not sufficient reason to allow the admission of evidence of prior bad acts.
    Opinion of the Court
    1. Criminal Law — Evidence — Prior Bad Acts.
    Evidence regarding a defendant’s prior bad acts should not be admitted unless (1) there is substantial evidence that the defendant actually perpetrated the acts in question, (2) there are special circumstances of the prior acts which tend to prove one of the elements of the crime charged, and (3) the defendant’s motive, intent, absence of mistake or accident, scheme, plan, or system is material to the determination of his guilt of the charged offense; even where these requirements are satisfied the evidence should be excluded where its prejudicial effect would outweigh its probative value.
    References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence §§ 320, 321, 324-326.
    [2] 29 Am Jur 2d, Evidence §§ 324, 333.

      Concurrence by N. J. Kaufman, P.J.
    2. Criminal Law — Evidence — Prior Bad Acts.

      The establishment of intent on the occasion of the crime chárged is not reason enough to allow the introduction of evidence of prior bad acts where the defendant has denied participation in the crime charged or in any prior similar acts.

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

      Buth, Wood & WeidaW (by George S. Biith and Stephen M. Tuuk), for defendant on appeal.
    Before: N. J. Kaufman, P.J., and R. M. Maher and D. C. Riley, JJ.
   Per Curiam.

The defendant appeals as of right from his conviction by jury of the charge of delivery of heroin, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a).

The basis of the charges against the defendant stemmed from an alleged heroin purchase at a barbershop by an addict-informer named Douglas King. Despite objections by defense counsel, Mr. King was allowed to testify that he had made approximately 20-25 prior purchases of heroin from the defendant. The defendant, testifying on his own behalf, denied participation in the alleged sale, or in any sale of drugs on a prior occasion. The defendant was impeached by evidence of a prior conviction for burglary.

On appeal, the defendant conteiids that the trial court erred by admitting into evidence testimony regarding defendant’s prior bad acts. We agree.

In People v Wilkins, 82 Mich App 260, 267-270; 266 NW2d 781 (1978), we found that it is erroneous to admit evidence of the defendant’s prior bad acts unless: (1) there is substantial evidence that the defendant actually perpetrated the bad acts in question; (2) there are special circumstances of the prior bad acts which tend to prove one of the statutory elements; and (3) the defendant’s motive, intent, absence of mistake or accident, scheme, plan, or system must be material to the determination of defendant’s guilt of the charged offense. Evidence is not material unless it is disputed. Even if the above requirements are satisfied, the trial court must weigh the probative value of the evidence against its likely prejudicial effect, and must exclude the evidence if the latter predominates. See also, People v Adan, 83 Mich App 326; 268 NW2d 397 (1978).

The instant case fails to satisfy all of the factors mentioned in Wilkins, supra, especially the third. See People v Rustin, 406 Mich 527; 280 NW2d 448 (1979), where the Supreme Court recently held that admission of testimony by an undercover agent concerning a prior sale of narcotics by the defendant constituted reversible error.

Reversed and remanded for a new trial.

N. J. Kaufman, P.J.

(concurring). I concur separately based on People v Rustin, 406 Mich 527; 280 NW2d 448 (1979).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v ZION
    Docket No. 43349.
    Submitted September 4, 1979, at Detroit.
    Decided November 7, 1979.
    Darrell N. Zion was convicted, on his plea of guilty, of delivery of heroin, Muskegon Circuit Court, John H. Piercey, J. Defendant appeals, alleging that the facts elicited at the plea-taking proceeding failed to show that he knew the controlled substance which he delivered was heroin. Held:

    It is not necessary, to satisfy the controlled substance statute, that the defendant know what kind of controlled substance he delivered. Additionally, in this case an inculpatory inference that the defendant knew the substance to be heroin could reasonably be drawn by a factfinder from the facts admitted by the defendant.
    Affirmed.
    Drugs and Narcotics — Criminal Law — Plea of Guilty — Heroin — Factual Basis for Plea.
    A sufficient factual basis is established for acceptance of a plea of guilty of delivery of heroin where it is clear that the defendant knew that he was delivering a controlled substance even though he claims that he did not know that the substance was heroin and.where an inculpatory inference that the defendant knew the substance to be heroin could reasonably be drawn by a judge or jury from the facts admitted by the defendant.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 484-487.
    Validity of guilty pleas—Supreme Court cases. 25 L Ed 2d 1025.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Gerald D. Warner, Prosecuting Attorney, David L. Bossenbroek, Chief Assistant Prosecuting Attorney, and Stephen C. Corwin, Assistant Prosecuting Attorney, for the people.

      William C. Marietti, for defendant.
    Before: Bashara, P.J., and J. H. Gillis and V. J. Brennan, JJ.
   Per Curiam.

Defendant appeals his plea-based conviction of delivery of a controlled substance, heroin, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a).

Defendant’s sole contention is that the facts elicited at the plea proceeding failed to show that defendant knew the controlled substance delivered was heroin.

The following colloquy taken from the transcript indicates what transpired at the plea proceeding:

"THE COURT: Will you tell me what you did on or about April the 14th with respect to this offense?
"DEFENDANT: I was visiting an inmate at the Correctional Facility of Muskegon, and Frances Hunt handed me a balloon to hand to another guy that we were visiting, Randy Osborn, and I accepted it from her and handed it to Randy Osborn.
"THE COURT: Well, I don’t know that there is anything in the law about balloons.
Did you have some heroin in the balloon?
"DEFENDANT: Yes, I knew it at the time it had some type of drugs in it.
"THE COURT: Well, did you know what it was that was in it?
Or had you been told what it was?
"DEFENDANT: I didn’t know exactly what it was, but I knew—.
"THE COURT: I’m not asking you if you tested it. I’m just asking: Had anybody told you what was in this thing, this balloon?
"THE DEFENDANT: Not at the time, no.
"THE COURT: You didn’t know what you were handing in?
"DEFENDANT: No, I knew it was a controlled substance, but I didn’t know what kind it was.”

GCR 1963, 785.7(3) requires a trial judge to establish a sufficient factual basis for a plea befóte accepting it. From the transcript, it is clear that defendant knew he was delivering a controlled substance, which is all that is required by the statute.

The fact that the penalty may be more Severe because the controlled substance turned out to be heroin rather than some other drug is of no moment as far as the guilty plea is concerned. An inculpatory inference that the defendant knew the substance to be heroin could reasonably be drawn by a judge or jury from the facts admitted by the defendant. Guilty Plea Cases, 395 Mich 96, 130; 235 NW2d 132 (1975).

Affirmed.

       The Controlled Substances Act is now covered in the new Michigan Public Health Code and is almost identical to the old act. See MCL 333.7210 et seq.; MSA 14.15(7210) et seq.


text:
    PEOPLE v LONG (ON REMAND)
    Docket No. 47521.
    Submitted October 2, 1979, at Lansing.
    Decided November 7, 1979.
    Defendant, Archie C. Long, was cohvicted of larceHy in a building in Jackson Circuit Court, James G. Fleming, J. The defendant appealed alleging error on the part of the trial cotlrt in denying his motion to quash the information, or in the alternative, an abuse of discretion on the part of the prosecutor in charging him with larceny in a building rather than with obtaining property under false pretenses. The proofs showed that the defendant, through a Series of change-making transactions, secured from cashiers ten dollars in excess of the sum which he originally sought to be changed. The Court of Appeals affirmed the defendant’s conviction for larceny in a building by an unpublished memorandum opinion, Docket No. 78-218, decided April 6, 1979. The defendant sought review in the Supreme CoUrt, which by its order of September 26, 1979, remanded the matter to the Court of Appeals "for amplification of the facts and reasons underlying its decision”. People v Long, 407 Mich 873 (1979). Held:

    1. The elements of the crime of larceny are: (1) an actual or constructive taking of goods or property, (2) a carrying away or asportation, (3) the carrying away must be with felonious intent, (4) the subject matter must be goods or personal property of another, and (5) the taking must be without the consent and against the will of the owner. Proof of fraud in obtaining possession of property may be substituted for the "taking without consent” element.
    2. Larceny by trick is distinguished from obtaining property under false pretenses by the fact that in larceny by trick the owner of the thing stolen has no intention to part with his property, while in the crime of false pretenses the owner does intend to part with his property, however, that intention is the result of fraudulent contrivances.

      References for Points in Headnotes
    [1] 50 Am Jur 2d, Larceny § 9.
    What constitutes larceny "from a person”. 74 ALR3d 271.
    [2-4] 50 Am Jur 2d, Larceny §§ 27, 28.
    [3] 32 Am Jur 2d, False Pretenses § 12 et seq.

    50 Am Jur 2d, Larceny § 29.

      3. The defendant was properly charged and convicted of larceny in a building rather than with obtaining property under false pretenses. Since the cashiers which the defendant engaged in the money-changing operations had no intention of parting with any sums of money in excess of the amount the defendant sought to be changed, the securing of the excess sum constituted the crime of larceny by trick rather than the crime of obtaining property under false pretenses.
    Affirmed.
    1. Larceny — Elements of Larceny.
    The elements of the crime of larceny are: (1) an actual or constructive taking of goods or property, (2) a carrying away or asportation, (3) the carrying away must be with felonious intent, (4) the subject matter must be goods or personal property of another, and (5) the taking must be without the consent and against the will of the owner.
    2. Larceny — Fraud.
    Proof of fraud in obtaining possession of property may be substituted for proof of the "taking without consent” element necessary to establish the crime of larceny.
    3. Larceny — Larceny by Trick — Obtaining Property Under False Pretenses.
    Larceny by trick is distinguished from obtaining property under false pretenses by the fact that in larceny by trick the owner of the thing stolen has no intention to part with his property, while in the crime of false pretenses the owner does intend to part with his property, however, that intention is the result of fraudulent contrivances.
    4. Larceny — Larceny by Trick — Intent.
    One is properly charged and convicted of larceny by trick rather than obtaining property under false pretenses where money is obtained by engaging another in a series of change making operations which ultimately result in acquiring funds in excess of the amount of money originally sought to be changed, since the person so deceived had no intention to part with the possession of funds in excess of the amount sought to changed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant,

      Prosecuting Attorney, and John L. Wildeboer, Assistant Prosecuting Attorney, for the people.

      F. Martin Tieber, Assistant State Appellate Defender, for defendant on appeal.
    Before: M. F. Cavanagh, P.J., and Bashara and D. E. Holbrook, Jr., JJ.
   On Remand

Per Curiam.

This cause was remanded by the Supreme Court for amplification of this Court’s prior unpublished opinion.

The required elements of the crime of larceny as enunciated in case law are (1) an actual or constructive taking of goods or property, (2) a carrying away or asportation, (3) the carrying away must be with felonious intent, (4) the subject matter must be the goods or personal property of another, and (5) the taking must be without the consent and against the will of the owner. People v Anderson, 7 Mich App 513; 152 NW2d 40 (1967).

It is defendant’s contention that he was improperly prosecuted under the larceny statute because the taking was not without the consent or against the will of the owner.

However, case law makes it clear that fraud in obtaining possession may supply the place of trespass in taking it, so as to make the conversion of it felonious. People v Shaw, 57 Mich 403; 24 NW 121 (1885).

Although the crimes of larceny by trick and obtaining property under false pretenses are very similar, there is a distinction which the statutes and case law clearly draw between the two crimes.

The distinction turns on the intent of the victim in parting with the property, and the rule is stated in People v Niver, 7 Mich App 652, 657; 152 NW2d 714 (1967), quoting from People v Martin, 116 Mich 446, 450; 74 NW 653 (1898), as follows:

" 'We think the rule to be gathered from the authorities may be stated to be: In larceny the owner of the thing stolen has no intention to part with his property therein; in false pretenses, the owner does intend to part with his property in the thing, but this intention is the result of fraudulent contrivances.’ ”

In the instant case, the cashiers did not knowingly transfer an extra $10 to the defendant relying on some false representations of the defendant. Rather, the cashiers, believing they had transferred only an amount equal to that received in making change for the defendant, were induced by trick or artifice of the defendant to part with possession of the extra $10.

Taking into consideration the intention of the parties, it is obvious that the cashiers intended only to exchange various denominations of money with the defendant quid pro quo. The cashiers had no intention to transfer possession or title to any money in excess of that received. The defendant, on the other hand, intended to obtain, through the use of artifice, possession of the extra $10 and intended thereby to relieve the owner of her possession.

The absence of an intent on the part of the cashiers to knowingly and voluntarily transfer possession or title to any money in excess of that received places the defendant’s conduct within the ambit of larceny rather than within the ambit of obtaining property under false pretenses.

The authorities concur in placing the activity of "ringing the change” within the crime of larceny.

The law is stated in Howell v State, 28 Ala App 249, 250; 182 So 96 (1938), where the court, quoting from Corpus Juris, 36 CJ, Larceny, § 146, p 779, stated the following:

" ' "Ringing the changes”, a trick frequently practiced upon shopkeepers and salesmen, is effected by tendering á large bill or coin in payment of a small purchase, and, after the correct change has been given, asking for other change and repeating the request until, in the confusion of mind created by so inany operations, the thief obtains more money than he should. This is held to be larceny, notwithstanding in each operation the shopkeeper or salesman voluntarily delivered the irionfey asked for, since it is obvious he intended to part with the title to only such money as constituted the correct change.’ ”

Additional authority for this view is found at 26 ALR 381, 386, where it is stated: "It has been held to be larceny for a person to create, with fraudulent intent, an occasion to change money for another and wilfully give short change”.

Therefore, in view of the distinction between the intent of the victim in the crime of obtaining money by false pretenses and that of larceny, and in view of the historical treatment accorded to the action of "ringing the change”, we determine the defendant was properly charged with the crime of larceny in a building rather than obtaining property by false pretenses.

The conviction is affirmed.


text:
    ELLIS v LAUTER
    Docket No. 78-853.
    Submitted June 7, 1979, at Detroit.
    Decided September 10, 1979.
    On February 18, 1971, plaintiff, Hazel Ellis, had surgery performed upon her by defendant Eric Lauter, M.D., at defendant Metropolitan Hospital. On November 9, 1976, plaintiff commenced an action against defendants alleging that Dr. Lauter negligently severed the right superficial nerve in plaintiffs neck during that operation at Metropolitan Hospital. Defendants moved for accelerated judgment on the basis that the plaintiffs action was barred by the statute of limitations. Defendants argued that the last day of treatment and the latest date upon which the plaintiff discovered, or should have discovered, the alleged malpractice was more than two years prior to the commencement of the action. Plaintiff asserted that she first discovered the alleged malpractice upon a visit to a neurosurgeon one year prior to commencing this action. The Wayne Circuit Court, Horace W. Gilmore, J., granted the motion for accelerated judgment. Plaintiff appeals. Held:

    1. The accrual period for the two year medical malpractice statute of limitations commences on the date of discontinuance of treatment or on the date the patient discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice, whichever is later. As a general rule, accelerated judgment based upon the running of the statute of limitations should not be granted where there is a material factual dispute regarding the date of discovery of the alleged malpractice.
    2. It was error to grant defendants’ motion for accelerated judgment on the basis of the running of the statute of limitations, since there was a material factual dispute as to whether plaintiff discovered, or should have discovered, the alleged malpractice more than two years prior to commencing her action.

      References for Points in Headnotes
    [1] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 180 et seq.

    Medical malpractice: amendment purporting to change the nature of the action or theory of recovery, made after statute of limitations has run, as relating back to filing of original complaint. 70 ALR3d 82.
    Statute of limitations applicable to malpractice action against physicians, surgeon, dentist, or similar practitioner. 80 ALR2d 320.
    [2, 3] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 183.

      Reversed and remanded.
    1. Limitation op Actions — Malpractice — Physicians and Surgeons — Accrual of Action — Discovery op Malpractice — Statutes.
    The accrual period for the two year medical malpractice statute of limitations commences on the date of discontinuance of treatment or serving of the patient or on the date the patient discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice, whichever is later (MCL 600.5805; MSA 27A.5805).
    2. Limitation of Actions — Accelerated Judgment — Discovery op Malpractice — Factual Dispute.
    It is improper, as a general rule, to grant accelerated judgment on the basis of the running of the statute of limitations in a malpractice action where there is a material factual dispute regarding the date of discovery of the alleged malpractice.
    3. Limitation op Actions — Accelerated Judgment — Physicians and Surgeons — Discovery of Malpractice — Factual Dispute — Appeal and Error.
    It is error to grant accelerated judgment on the basis of the running of the statute of limitations in a medical malpractice action where the alleged malpractice occurred prior to July 9, 1975, and there is a factual dispute as to whether the patient discovered the alleged malpractice one year or more than two years prior to commencing the malpractice action.

      Rifkin, Kingsley & Rhodes, P.C. (by James M. Rifkin and Roy A. Williams), for plaintiff.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by D. J. Watters and Christine D. 01-dani), for defendants.

      Before: N. J. Kaufman, P.J., and Bronson and A. E. Moore, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Per Curiam.

This is a medical malpractice case which arose out of Surgery performed upon the plaintiff by defendant Dr. Lauter at defendaht Metropolitan Hospital on February 18, Í971. The plaintiff filed a complaint on November 9, 1976, alleging that the defendant doctor negligently severed the superficial right nerve of the plaintiff’s neck during this operation. The defendants filed a motion for accelerated judgment asserting that the plaintiff^ action was barred by the statute Of limitations. This motion was granted on February 1, 1978, and the case was dismissed. The plaintiff now appeals by right. We reversé on the ground that a question of fact existed as to when the plaintiff discovered or should have discovered the alleged malpractice; and, therefore, accelerated judgment was improper.

Medical malpractice cases have a two year statute Of limitations, MCL 600.5805; MSA 27A.5805. The applicable accrual period was stated in Dyke v Richard, 390 Mich 739, 747; 213 NW2d 185 (1973):

"[W]e hold that an action based on malpractice by a state licensed person must be brought within two yedrs of the time when such person discontinues treating or otherwise serving the plaintiff, or within two years of the time when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice, whichever is later.”

The general rule is that accelerated judgment grounded on the statute of limitations is improper where material factual disputes exist regarding discovery of the asserted malpractice. Winfrey v Farhat, 382 Mich 380; 170 NW2d 34 (1969), Kelleher v Mills, 70 Mich App 360; 245 NW2d 749 (1976).

The plaintiffs position is that she did not discover the malpractice in this case until she visited a neurosurgeon one year prior to filing spit. The defendants argue that, based only upon the facts stated in the plaintiffs deposition, it is clear that she discovered or should have discovered any malpractice at the latest qn March 18, 1974, more than two years prior to suit.

In this case, the plaintiff stated in her deposition that immediately after the operation she could not swallow or control her mouth, which was drooping. This condition is still bothering her. After her operation, the plaintiff saw the defendant doctor and complained about the numbness.

The plaintiff went to see the defendant doctor on March 18, 1974, and complained that she had numbness under her chin, a dimple that was not there before and a funny feeling when she yawned.

Regarding that meeting, the plaintiff, in her response to a question relative to whether it was on that date that Dr. Lauter told her that he had done nothing, stated: "Yes, right, he said, T didn’t do nothing wrong.’ ”

The defendants’ position is that, since the plaintiff complained to the defendant doctor on March 18, 1974, she had as a matter of law "discovered” the malpractice and the statute of limitations began running from that date.

The defendants rely upon Patterson v Estate of Flick, 69 Mich App 101; 244 NW2d 371 (1976), in support of their position. In that case, the defendant doctor severed the plaintiffs femoral nerve while removing her appendix. Immediately following the operation, the defendant informed the plaintiff that he had severed her nerve. The plaintiff then experienced paralysis and numbness in her right leg. However, she did not file suit until four and a half years after the operation. In that case, this Court found that the trial court had properly granted accelerated judgment on the ground that the action was barred by the statute of limitations. Discovery, as a matter of law, occurred when the defendant informed the plaintiff that he had severed her nerve.

We find that the facts in Patterson are distinguishable from the facts in this case. Here, the defendant doctor never told the plaintiff that he had committed an error. In fact, when the plaintiff returned to the defendant doctor, the defendant doctor specifically stated that he had done nothing wrong.

Patterson clearly met the threshold test established in Winfrey, supra, as to when a trial court can grant a motion for accelerated judgment based on the statute of limitations in medical malpractice cases. There was no material factual dispute regarding discovery of the malpractice.

However, in this case, unlike Patterson, there is a material factual question. Moreover, the facts presented to the hearing court clearly delineate the two positions taken.

Weiss v Bigman, 84 Mich App 487; 270 NW2d 5 (1978), is directly on point. In that case, the plaintiff asserted that he did not discover the alleged malpractice until August of 1974. However, the defendants maintained that the plaintiff discovered the malpractice in February of 1974.

In that case, the Court stated:

"Both plaintiff and defendants disagree as to when the plaintiff should have discovered the alleged malpractice. Thus, there is a material issue of fact regarding the discovery date of the asserted malpractice.
"In Kelleher v Mills, 70 Mich App 360, 365; 245 NW2d 749 (1976), this Court held:
" 'Accelerated judgment grounded on the statute of limitations is improper where material factual disputes exist regarding discovery of the asserted malpractice. Winfrey v Farhat, 382 Mich 380; 170 NW2d 34 (1969), Cates v Frederick W Bald Estate, 54 Mich App 717; 221 NW2d 474 (1974), lv den, 394 Mich 758 (1975).’
"Thus, the trial court erred in granting defendants’ motion for accelerated judgment because the date of discovery was a material issue of fact that should have been left for a jury.” Weiss, supra, 494.

Under the circumstances of this case, the trial court erred in granting the defendants’ motion for accelerated judgment based on the statute of limitations. Here, there was a material factual dispute regarding discovery of the alleged malpractice.

Reversed and remanded.

       It should be noted that the accrual period for the two year medical malpractice statute of limitations provided iii MCL 600.5838; MSA 27A.5838 (effective July 9, 1975) and which would effectively bar the plaintiffs action, is not applicable in this case. See MCL 600.9905(1); MSA 27A.9905; Winfrey v Farhat, 382 Mich 380; 170 NW2d 34 (1969).


text:
    PEOPLE v BARNARD
    Docket No. 78-4834.
    Submitted June 15, 1979, at Grand Rapids.
    Decided September 12, 1979.
    Kenneth R. Barnard was convicted of second-degree murder, Kalamazoo Circuit Court, Ronald M. Ryan, J. Defendant appeals, alleging several errors. Held:

    1. The trial court’s instructions to the jury on second-degree murder were proper. Failure to instruct on specific intent was not error, because second-degree murder is not a specific intent crime.
    2. The trial court did not abusé its discretion in allowing the prosecutor to recall the defendant for further cross-examination after the other defense witnesses had testified where the defendant was not prejudiced thereby.
    3. Photographs of the deceased were properly admitted into evidence where they were offered to aid medical witnesses in their testimony regarding the condition of the body, they were probative of the issues of intent and of nonaccident, and they were not merely calculated to excite passion and prejudice.
    4. Admission of expert testimony that the victim, a two-year-old child, suffered from "battered child syndrome” was not improper. The evidence was relevant to the issues of intent and nonaccident. Similarly, the court properly admitted evidence of previous injuries suffered by the deceased.
    5. The evidence connecting the defendant with the child’s previous injuries and with the injury resulting in death, and the evidence that the defendant had the requisite malice aforethought, was sufficient to justify the jury’s determination of guilt.
    Affirmed.
    References for Points in Headnotes
    [1] 40 Am Jur 2d, Homicide §§ 10, 53.
    [2] 40 Am Jur 2d, Homicide § 419.
    Colored photographs, admissibility in evidence. 53 ALR2d 1102.
    Admissibility of photograph of corpse in prosecution for homicide or civil action causing death. 73 ALR2d 769.
    [3] 31 Am Jur 2d, Expert and Opinion Evidence §§ 111-113.
    [4] 40 Am Jur 2d, Homicide §§ 426, 491.

      1. Homicide — Second-Degree Murder — Intent.
    Second-degree murder is not a specific intent crime.
    2. Homicide — Evidence — Photographs.
    Photographs of a homicide victim may properly be admitted into evidence where they are probative of the injury which caused the death and relevant to the issues of intent and lack of accident, and where they are not merely calculated to excite passion and prejudice.
    3. Homicide — Evidence — Battered Child Syndrome.
    The trial court did not err in admitting expert testimony in a murder trial that a deceased child suffered from "battered child syndrome” because such a diagnosis indicated only lack of accident and does not suggest that a particular person injured the child and was highly relevant to the material issues of intent and lack of accident.
    4. Homicide — Evidence — Sufficiency of Evidence.
    The test of whether the evidence of a defendant’s criminal responsibility and malice aforethought is sufficient to convict the defendant is whether the evidence presented by the prosecution would justify a reasonable person in concluding that all elements of the charged offense had been established beyond a reasonable doubt; in reaching their conclusion, the jurors are entitled to draw reasonable inferences from the circumstantial evidence.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and Judy A. Hughes, Appellate Attorney, for the people.

      DeVries & Lamb, P.C. (by William A. Redmond), for defendant on appeal.
    Before: D. F. Walsh, P.J., and M. J. Kelly and E. F. Oppliger, JJ.

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

   Per Curiam.

Defendant was charged with the murder of a two-year-old child. He appeals his conviction by a jury of second-degree murder, MCL 750.317; MSA 28.549. He was sentenced on October 3, 1977, to a prison term of 15 to 30 years. His motion for new trial was denied on September 25, 1978. We find no reversible error.

Defendant’s argument that the trial court erred in failing to instruct the jury that "specific intent” is an element of second-degree murder is without merit. The charge followed the standard criminal jury instructions. CJI 16:3:01. Second-degree murder is not a "specific intent” crime. See People v Garcia, 398 Mich 250, 259; 247 NW2d 547 (1976), distinguishing Wellar v People, 30 Mich 16 (1874).

Defendant also argues that reversible error was committed by the trial court in allowing the prosecutor to recall defendant for further cross-examination after the other defense witnesses had testified. Review of the record fails to reveal any prejudice to defendant by reason of this ruling. The record does not suggest an abuse of the trial court’s discretion in this regard. Compare People v Poe, 388 Mich 611, 619-620; 202 NW2d 320 (1972), reversing 27 Mich App 422; 183 NW2d 628 (1970).

At trial, five photographs of the deceased child were admitted into evidence. We have reviewed the photographs and find them to be neither gruesome nor inflammatory. They were offered into evidence to aid medical witnesses in their testimonial description of the condition of the child’s body at the time of death. Indeed, the photos reveal arguably less extensive injuries than the jurors might have imagined if the sole evidence of the injuries had been the trial testimony of the various witnesses. There was additional probative value in the photos’ relevance to the issues of intent and nonaccident. In light of the theory of the defense, the necessarily circumstantial nature of the prosecution’s evidence, and the absence of unrebutted proof of the circumstances surrounding the child’s death, we find that the photos were not erroneously admitted. We are convinced that they were not merely calculated to excite passion and prejudice. People v Eddington, 387 Mich 551, 562-563; 198 NW2d 297 (1972). People v Falkner, 389 Mich 682, 685-686; 209 NW2d 193 (1973).

Defendant further argues that reversible error occurred in the admission of expert opinion testimony that the deceased suffered from "battered child syndrome”. Battered child syndrome is a widely recognized medical diagnosis which indicates that a child has been injured by other than accidental means. The emergency room physician testified that his final diagnosis, after pronouncing the child dead, was battered child syndrome. The pathologist who performed the autopsy on the child’s body testified that his findings were consistent with battered child syndrome. We find no error in the admission of this testimony. The diagnosis indicates only lack of accident and does not suggest whether a particular person injured the child. We agree with the courts of other jurisdictions which have found no error in admitting testimony about battered child syndrome. The witnesses were qualified to testify concerning battered child syndrome. The evidence was highly relevant to the material issues of intent and nonaccident. See, e.g-, Commonwealth v Labbe, — Mass App —; 373 NE2d 227 (1978), State v Goblirsch, 246 NW2d 12 (Minn, 1976).

Nor do we find error in admission of evidence of previous injuries suffered by the deceased child. This issue is closely connected with the preceding one. There was extensive testimony about prior injuries—severely burned feet, burned arm, black eyes, fractured ribs, fractured leg, extensive bruises. We have carefully reviewed the record qnd conclude that the evidence was material, relevant and admissible. The nature of the charge against defendant necessitated significant reliance by the prosecution on circumstantial evidence. In similar cases, courts of other jurisdictions have found no errpr in admission of evidence of prior injuries suffered by the deceased child. See Commonwealth v Labbe, supra, (relevant to the state of mind), People v Weisberg, 265 Cal App 2d 476; 71 Cal Rptr 157 (1968) (intent, malice aforethopght), People v Drumheller, 15 Ill App 3d 418; 304 NE2d 455 (1973) (intent, refutation of accident or recklessness), State v Tornquist, 254 Iowa 1135; 120 NW2d 483 (1963) (malice, ill will). See also State v Goblirsch, supra, State v Blocher, 10 Or App 357; 499 P2d 1346 (1972). We are satisfied that evidence of the prior condition of the child was properly admitted.

Defendant challenges the sufficiency of evidence connecting him with the child’s prior injuries as well as the sufficiency of evidence that he caused the injury or injuries resulting in the child’s death or that he had the requisite malice aforethought. After careful review of the record, we reject these challenges. There was sufficient circumstantial evidence that defendant was responsible for the prior injuries suffered by the child. There was medical testimony, for example, which indicated that the injuries did not appear until after defendant began to babysit for the child. There was also testimony, including defendant’s own testimony, that the child was in defendant’s exclusive custody at the time some of the injuries were sustained.

With respect to defendant’s challenge to the sufficiency of evidence of his criminal responsibility and malice aforethought, the test is whether the evidence presented by the prosecution would have justified a reasonable person in concluding that all elements of the charged offense had been established beyond a reasonable doubt. People v Johnson, 83 Mich App 1, 17-18; 268 NW2d 259 (1978), People v Edgar, 75 Mich App 467, 470-474; 255 NW2d 648 (1977). The jurors were entitled to draw reasonable inferences from the circumstantial evidence. People v Lauzon, 84 Mich App 201, 208; 269 NW2d 524 (1978).

After reviewing the record we are not persuaded that the prosecution’s evidence was insufficient. There was evidence from which the jury could infer that defendant was alone with the child when the fatal injury, a head injury causing brain damage and respiratory arrest, occurred. There was ample testimony which cast doubt on defendant’s explanation of the morning’s events. There was evidence of the child’s prior condition and medical evidence as to the cause of death. From evidence presented by the prosecution the jury could properly have inferred that defendant was responsible for the child’s fatal injury and that he had had the requisite state of mind to justify conviction of second-degree murder. We will not disturb that jury determination.

Affirmed.

       The evidence of the child’s prior condition was admitted under the "similar acts” statute. MCL 768.27; MSA 28.1050. We disagree that admissibility was governed by this statute. Circumstantial evidence of injuries sustained by the child during the time period in which defendant was living in the home with the child’s mother, the nature of those injuries, and the lack of such injuries prior to the time defendant moved into the home was material and relevant to the resolution of disputed issues relating to the identity of the person who caused the injuries, the intent with which they were caused and the lack of accident. As such, it was competent circumstantial evidence admissible to prove the crime charged.
      Even if the admission of the evidence under the "similar acts” theory was improper, therefore, no reversible error occurred since there was a valid alternative theory under which the evidence was admissible.


text:
    CITY OF GROSSE POINTE v PUBLIC SERVICE COMMISSION
    Docket Nos. 78-2818, 78-2819.
    Submitted June 8, 1979, at Lansing.
    Decided September 24, 1979.
    Defendant The Detroit Edison Company (Edison) filed an application with defendant Public Service Commission (PSC) for a rate increase. During the pendency of that application Edison moved for an interim rate increase and the PSC, after hearing, granted an interim rate increase of $25 million annually, subject to refund in the event the increase in the final order is less. Plaintiffs, the cities of Grosse Pointe Park, Highland Park, Grosse Pointe Woods, Harper Woods, Royal Oak, Livonia, Ann Arbor, Inkster and Warren, filed suit in the Ingham Circuit Court against the PSC and Edison for an injunction staying and an order vacating the PSC interim order. The Attorney General, the City of Detroit and the County of Wayne filed a separate lawsuit against the PSC in the Ingham Circuit Court seeking the same relief. Edison moved to intervene and the court granted the motion. The cases were consolidated by the court, Michael G. Harrison, J., and the order of the PSC was affirmed. The Attorney General appeals. Held:

    1. Section 85 of the Administrative Procedures Act requiring administrative orders to contain findings of fact applies to interim rate orders of the Public Service Commission.
    2. An interim rate increase order of $25 million by the Michigan Public Service Commission does not violate § 85 of the Administrative Procedures Act relating to findings of fact by administrative agencies where the commission found that the utility company was earning less than the rate previously found to be reasonable, that the utility had been subjected to large increases in fuel costs, wages and taxes, that the utility’s revenue deficit was at least $30.8 million and that at least several months would elapse before a final order would issue and the revenue lost during the interim would be irretrievable.
    Affirmed.
    Reference for Points in Headnote
    64 Am Jur 2d, Public Utilities § 134.

      Public Service Comissions — Utilities — Interim Rate Increase — Statutes.
    An interim rate increase order of $25 million by the Michigan Public Service Commission does not violate a section of the Administrative Procedures Act relating to findings of fact by administrative agencies where the commission found that the utility company was earning less than the rate previously found to be reasonable, that the utility had been subjected to large increases in fuel costs, wages and taxes, that the utility’s revenue deficit was at least $30.8 million, and that at least several months would elapse before a final order would issue and the revenue lost during the interim would be irretrievable (MCL 24.285; MSA 3.560[185]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Hugh B. Anderson, Roderick S. Coy and Albert Ernst, Assistants Attorney General, for the Attorney General.

      Arthur E. DHondt and James E. Riley, Assistants Attorney General, for Michigan Public Service Commission.

      Fischer, Franklin, Ford, Simon & Hogg (by George Hogg, Jr., and Francis E. Bentley), for The Detroit Edison Company.
    Before: Danhof, C.J., and M. F. Cavanagh and H. R. Carroll, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Per Curiam.

This is a public utility rate increase case. On March 30, 1972, the Michigan Public Service Commission issued an interim rate order granting The Detroit Edison Company a 25 million dollar interim rate increase. On appeal to the Ingham County Circuit Court the decision of the commission was affirmed.

On appeal to this Court, four issues were raised. The first was whether the interim order had to contain findings of fact in compliance with § 85 of the Administrative Procedures Act of 1969, being MCL 24.285; MSA 3.560(185). This Court has applied § 85 to interim rate orders in Attorney General v Public Service Comm, 63 Mich App 69; 234 NW2d 407 (1975), lv den 395 Mich 779 (1975). We conclude, as did that Court, that application of § 85 is appropriate in reviewing such interim orders.

Next, appellant argued that the Michigan Public Service Commission did not make sufficient findings of fact to support the interim order. That issue lacks merit, the commission having specifically found: that the utility company was earning less than the rate previously found reasonable by the commission; that the utility company had been subjected to large increases in fuel cost, wages and taxes; that the utility company’s revenue deficiency, based upon the commission staffs minimum position, was at least $30,861,000; and, that at least several months would elapse before a final order would issue and the revenue lost during that period was irretrievable. The grant of some interim rate relief was supported by all four findings and the amount was within the range of evidence.

The third and fourth issues, relative to the staff "investigation and report” and the necessity for a financial emergency when issuing an interim rate order, lack merit on the authority of Attorney General v Public Service Comm, supra.

Affirmed.


text:
    KEELER BRASS COMPANY v DEPARTMENT OF LABOR
    Docket No. 78-5439.
    Submitted June 12, 1979, at Grand Rapids.
    Decided October 10, 1979.
    Plaintiff, Keeler Brass Company, brought an action in the Kent Circuit Court for a declaration that the warrant provision of the Michigan Occupational Safety and Health Act was unconstitutional and for an injunction preventing execution of an inspection warrant issued under that section. The parties stipulated to narrow the consideration to the validity of the statutory language and not the issuance of the particular warrant. The court, Roman J. Snow, J., dismissed the case, implying in its opinion that the public interest in securing a safe working environment itself constituted sufficient probable cause for issuance of a suitably restricted search warrant. Plaintiff appeals. Held:

    A statute passed by the Legislature will be presumed to be valid unless the contrary clearly appears. In cases of doubt, every reasonable presumption must be indulged in favor of its validity. The statute providing that the Department of Labor may apply for a warrant to inspect an employer’s premises pursuant to the Michigan Occupational Safety and Health Act is constitutional.
    Affirmed.
    1. Statutes — Statutory Construction — Constitutional Law.
    A statute passed by the Legislature will be presumed to be valid unless the contrary clearly appears; in cases of doubt, every reasonable presumption must be indulged in favor of its validity.
    2. Statutes — Occupational Safety and Health Act — Constitutional Law.
    The statute providing that the Department of Labor may apply for a warrant to inspect an employer’s premises pursuant to the Michigan Occupational Safety and Health Act is constitutional; issuance of such warrants must be on probable cause (Const 1963, art 1, § 11, MCL 408.1029[2]; MSA 17.50[29][2]).

      References for Points in Headnotes
    [1] 73 Am Jur 2d, Statutes §§ 103, 123.
    [2] Am Jur 2d, New Topic Service, Occupational Safety Health Acts §§ 12, 29.

      Varnum, Riddering, Wierengo & Christenson (by Dennis C. Kolenda), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and James D. Mueller, Assistant Attorney General, for defendant.
    Before: D. F. Walsh, P.J., and M. J. Kelly and E. F. Oppliger, JJ.

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

   Per Curiam.

Plaintiff brought an action seeking a ruling on the constitutional validity of § 29(2) of the Michigan Occupational Safety and Health Act (MIOSHA), MCL 408.1001 et seq.; MSA 17.50 et seq. Plaintiff contended that § 29(2) purported to authorize unconstitutional safety and health inspections and sought an injunction preventing execution of an inspection. It also sought an injunction preventing execution of an inspection warrant purportedly invalidly issued pursuant to the statutory provision. The parties below stipulated to the facts and narrowed the issue to consider only the facial validity of § 29(2) and not the issuance of a particular warrant. The trial court granted defendant’s motion to dismiss following oral arguments. We affirm, noting that the trial court may have made the right decision for the wrong reason.

This Court must determine whether the inspection provisions of § 29(1) and 29(2) of MIOSHA violate the warrant clause of the Michigan Constitution of 1963, art 1, § 11, and the Fourth Amendment to the U.S. Constitution. The sections in question are as follows:

"Sec. 29. (1) To implement this act, a department representative, upon presenting appropriate credentials, may enter without delay and at reasonable times a place of employment to physically inspect or investigate conditions of employment and all pertinent conditions, equipment, and materials therein and to question privately the employer, owner, operator, agent, or an employee with respect to safety or health. The inspection or investigation shall be conducted without unreasonably disrupting the employer’s operations.
"(2) If permission to enter a place of employment is denied, the department may apply to the proper judicial officer for a warrant commanding the sheriff or a peace officer to aid the department in the conduct of an inspection or investigation to determine if there is a violation of this act or any rule promulgated under this act.” MCL 408.1029(1), 408.1029(2); MSA 17.50(29X1), 17.50(29X2).

Plaintiff contends that § 29(2) purports to authorize warrantless searches, or at least the issuance of inspection warrants without the requirement of an independent finding of probable cause. Plaintiff further argues that this section purports to authorize the issuance of inspection warrants solely upon the representation that an inspector has been denied entry to a place of employment.

This Court, however, is not reviewing any set of facts which allege the issuance of a warrant solely on the denial of entry. The parties at trial eliminated the consideration of the issuance of any particular warrant, and argued only the facial constitutional validity of §§ 29(1) and 29(2). Thus, we pass only on a plain reading of the statute and not upon any particular set of administrative or judicial actions which may have been taken thereunder.

The rules of statutory construction require that we construe the plain language of the statute so as to save it, if possible, from constitutional defect.

"It is clear that a statute passed by the Legislature will be presumed to be valid unless the contrary clearly appears. Every reasonable presumption or intendment must be indulged in favor of the validity of an act, and it is only when invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the constitution that a court will refuse to sustain its validity. Cady v Detroit, 289 Mich 499 (1939).” Holland Motor Express, Inc v Michigan Employment Security Comm, 42 Mich App 19, 25; 201 NW2d 308 (1972).

Under a plain reading of § 29(2), upon refusal of permission to a department representative to inspect the nonpublic portions of a place of employment, "the department may apply to the proper judicial officer for a warrant” authorizing the inspection. The section does not command the issuance of a warrant, but rather directs the Department of Labor to apply to a magistrate for an administrative inspection warrant.

Both the Michigan and United States Constitutions provide that no warrants shall issue except upon probable cause. There is no clear indication in the Legislature’s use of the term "warrant” in § 29(2) that they intended to obviate the probable-cause requirement. Even if the Legislature had intended to circumvent the probable-cause limitation on the issuance of warrants in this situation, this Court would be bound to interpret the term "warrant” to include the constitutional limitations on their issuance.

The United States Supreme Court in Marshall v Barlow’s, Inc, 436 US 307; 98 S Ct 1816; 56 L Ed 2d 305 (1978), held unconstitutional § 8(a) of the Federal Occupational Safety and Health Act, 29 USC 657(a), insofar as the provision purported to authorize warrantless inspections of an employer’s premises. In ruling that a warrant was required in the event that an employer refused entry to an OSHA inspector, the Court made clear that "[p]robable cause in the criminal sense is not required” for the issuance of an administrative inspection warrant. 436 US 307, 320. Rather:

"[f]or purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that 'reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular [establishment], Camara v Municipal Court, 387 US at 538.” (Footnotes omitted.) Id., 320-321.

Thus, we read § 29(2) as providing only that denial of entry authorizes the department to "apply” for a warrant. It does not, contrary to plaintiffs assertion, purport to command the issuance of a warrant on the basis that entry has been denied. The issuance of a warrant is dependent solely upon a neutral judicial determination that the type of "probable cause” enunciated in Camara v Municipal Court of the City and County of San Francisco, 387 US 523; 87 S Ct 1727; 18 L Ed 2d 930 (1967), has been met.

As noted at the outset of this opinion, the trial judge may have correctly upheld the statute for the wrong reason. The trial judge, in his oral decision, implied that the public interest in securing a safe working environment itself constituted sufficient probable cause for issuance of a suitably restricted search warrant. However, that is not the law. An independent determination of probable cause must be based upon:

(1) specific evidence of an existing violation, or

(2) a "showing that a specific business has been chosen for * * * [a] search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources”. Marshall v Barlow’s, Inc, supra, 321.

This Court does not pass on the application of the statute to inspections of plaintiffs premises because the issue was not preserved for appeal. Neither do we decide whether administrative guidelines for the conduct of MIOSHA inspections exist upon which a judicial officer could find the probable cause mandated by Camara v Municipal Court, supra.

For the reasons stated above, the constitutionality of § 29(2) of MIOSHA is upheld. The dismissal of plaintiffs cause of action is affirmed.

No costs, a public question being involved.


text:
    PEOPLE v SPENCER
    Docket Nos. 78-1024, 78-1025.
    Submitted June 11, 1979, at Detroit.
    Decided October 17, 1979.
    Christopher Spencer was convicted of two counts of criminal sexual conduct in the third degree and one count of assault with intent to commit criminal sexual conduct, Recorder’s Court of Detroit, Keith J. Leenhouts, J. All three counts involved the same complainant and were consolidated for trial. Defendant appeals and claims that it was error to admit his underwear into evidence. The arresting officer, believing defendant’s underwear contained evidence, ordered defendant to disrobe and took his undershorts. The clothing was seized without a search warrant. Defendant also contends that even if the underpants were legally seized, admission of laboratory analysis of the blood type into evidence should have been denied because his and the complainant’s blood was type A, which is an extremely common type, and admission of such evidence was more prejudicial than probative. Held:

    1. Any evidence of a crime in the immediate possession of a person who is arrested, including his clothing, may be seized by the police without a warrant.
    2. Blood tests are generally admissible in criminal prosecutions to prove identity, although additional evidence on the issue is usually required. The fact that the blood type is a common one affects the weight, not the admissibility, of the evidence. The trial court did not abuse its discretion in admitting such evidence.
    Affirmed.
    1. Searches and Seizures — Clothing — Probable Cause — Material Evidence.
    Police are entitled to seize any evidence of a crime in the immediate possession of a person who is arrested, including his clothing, without a warrant, especially where the police have probable cause to believe that the articles of clothing are themselves material evidence of the crime for which he has been arrested.

      References for Points in Headnotes
    [1] 68 Am Jur 2d, Searches and Seizures §§ 85, 87, 88.
    [2] 10 Am Jur 2d, Bastards § 32.
    Blood grouping tests. 46 ALR2d 1000.
    [3] 29 Am Jur 2d, Evidence § 370.
    30 Am Jur 2d, Evidence § 1104.
    Blood grouping tests. 46 ALR2d 1000.

      2. Bastards — Evidence — Paternity — Blood Tests — Admissibility.
    Evidence of matching blood types is generally inadmissible to prove paternity.
    3. Criminal Law — Evidence — Blood Tests — Identification — Common Blood Types — Admissibility.
    The results of blood grouping tests are generally admissible in criminal prosecutions on the question of whether particular blood was the blood of a specified individual; blood tests are generally insufficient to establish identity in the absence of additional evidence on the issue; the fact that the blood type is a common one affects the weight and not the admissibility of such evidence.

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

      Jack Jaffe and Howard Hertz, for defendant.
    Before: J. H. Gillis, P.J., and Beasley and R. M. Ransom, JJ.

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

   Per Curiam.

Defendant was convicted by a jury of two counts of criminal sexual conduct in the third degree, MCL 750.520d; MSA 28.788(4), and one count of assault with intent to commit criminal sexual conduct, MCL 750.520(g)(1); MSA 28.788(7)(1). He was sentenced to prison terms of 3 to 15 years on the first two counts and 3 to 10 years on the assault count. Defendant appeals as of right raising two issues for our consideration.

Defendant first contends it was error to admit into evidence certain clothing which was seized without a search warrant.

The police arrested defendant on October 12, 1977, and took him to the police station. The arresting officer, believing defendant’s underwear contained evidence, ordered defendant to disrobe and took his undershorts. Chemical analysis revealed blood stains of blood type A as well as seminal fluid ascertained to have come from a person with blood type A. Both defendant and the complaining witness had blood type A. Moreover, the complaining witness testified she started menstruating heavily immediately after defendant had intercourse with her.

In United States v Edwards, 415 US 800; 94 S Ct 1234; 39 L Ed 2d 771 (1974), the defendant was arrested for attempted breaking and entering. The attempted entry had been made through a wooden window leaving paint chips on the window sill and screen. The defendant’s clothes were seized the morning after the arrest and examination revealed paint chips matching samples taken from the window.

In upholding the validity of the warrantless seizure, the Court stated that the police were entitled to take any evidence of the crime in his immediate possession, including his clothing. 415 US at 806. The Court also noted that the police had probable cause to believe that the articles of clothing were themselves material evidence of the crime for which he had been arrested.

Defendant’s arguments that Edwards is distinguishable from the instant case are without merit.

Defendant also contends that even if the underpants were legally seized, admission of laboratory analysis of the blood type into evidence should have been denied since the evidence was more prejudicial than probative. Defendant argues that the blood sample on the underpants, although of the same type as the complainant’s, was an extremely common type.

We do not believe the trial court abused its discretion in admitting this evidence. While evidence of matching blood types has been held inadmissible to prove paternity, People v Nichols, 341 Mich 311; 67 NW2d 230 (1954), Shepherd v Shepherd, 81 Mich App 465; 265 NW2d 374 (1978), it has been admitted in criminal cases without comment. See, e.g., People v Lapsley, 26 Mich App 424; 182 NW2d 601 (1970), People v Terry, 80 Mich App 299; 263 NW2d 352 (1977), People v McNeill, 81 Mich App 368; 265 NW2d 334 (1978). In addition, in Anno: ’Blood Grouping Tests, 46 ALR2d 1000, it is reported that the results of blood grouping tests are generally admissible in criminal prosecutions on the question of whether particular blood was the blood of a specified individual, although insufficient to establish identity in the absence of additional evidence on the issue. The fact that the blood type is a common one affects the weight and not the admissibility of the evidence.

In the instant case there was evidence that the complaining witness started menstruating immediately after the act and she identified the defendant as the perpetrator of the act. Under these circumstances we do not believe the trial court abused its discretion in admitting the evidence.

Affirmed.


text:
    KAMBLY v DEPARTMENT OF LICENSING & REGULATION
    Docket No. 78-3347.
    Submitted June 19, 1979, at Lansing.
    Decided October 18, 1979.
    The Attorney General’s office filed a complaint with the Medical Practice Board against Arnold H. Kambly, M.D., alleging that Kambly, a psychiatrist, had violated the Medical Practice Act by acting immorally and unprofessionally by having had sexual intercourse with one of his patients. That patient commenced a civil action in Washtenaw Circuit Court based on these same allegations. Kambly moved to have the administrative proceedings stayed pending the resolution of the civil action on the grounds that he would otherwise be forced to disclose his trial defense at the public administrative hearing. The motion was denied by the Medical Practice Board examiner. Kambly petitioned the Washtenaw Circuit Court seeking to enjoin the Medical Practice Board proceeding. Injunction denied, Patrick J. Conlin, J. Kambly appeals. He then moved the circuit court to stay proceedings pending appeal, which motion was denied. He made the same motion in the Court of Appeals and was again denied relief. Held:

    The circuit court did not abuse its discretion in denying plaintiffs motion for injunctive relief. The interests of the public would best be promoted by an expeditious handling of plaintiffs misconduct hearing. Dr. Kambly’s allegations that he would be irreparably harmed and that the interests to the public would be miniscule in comparison are unfounded.
    Affirmed.
    Physicians and Surgeons — Administrative Law — Misconduct — Medical Practice Act — Medical Practice Board — Statutes.
    An administrative misconduct hearing by the Medical Practice Board to determine whether a physician has violated the Medical Practice Act should not be held in abeyance while a civil action on the same charge is pending in circuit court because the interests of the public would best be promoted by an expeditious handling of the misconduct complaint at the administrative level (MCL 338.1801 et seq.; MSA 14.521[1] et seq.).

      Reference for Points in Headnote
    61 Am Jur 2d, Physicians, Surgeons, and Other Healers §§ 74, 76.

      Crippen, Urquhart & Cmejrek, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gary L. Finkbeiner, Assistant Attorney General, for defendant.
    Before: Cynar, P.J., and Mackenzie and L. W. Corkin, JJ.

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

   Per Curiam.

On September 27, 1977, the Attorney General’s office filed an administrative complaint with the Medical Practice Board, alleging that Arnold H. Kambly (hereafter petitioner), a psychiatrist, violated the Medical Practice Act, MCL 338.1801 et seq.; MSA 14.542(1) et seq., by departing from or failing to conform to minimal standards of acceptable and prevailing medical practice and conducting himself immorally and unprofessionally in the treatment of one of his patients, Bettina Cotton. Based on these same allegations, Cotton is pursuing a civil action in Washtenaw County Circuit Court, charging that petitioner, while treating her therapeutically for various emotional and mental problems, had engaged in sexual intercourse with her. On May 17, 1978, before the Medical Practice Board, petitioner moved to have the administrative proceedings stayed pending the resolution of the civil action, on the grounds that he would otherwise be forced to disclose his trial defense at the public administrative hearing. The motion was denied by the Medical Practice Board hearing examiner.

Petitioner appealed to the circuit court, which affirmed the Medical Practice Board. Petitioner appealed to this Court. With the administrative hearing scheduled prior to any disposition in this Court, petitioner moved the circuit court for an injunction pending appeal, which was denied. Petitioner then filed a motion for a stay of proceedings along with a motion for immediate consideration with this Court. In a January 8, 1979, order, this Court granted petitioner’s motion for immediate consideration, but denied his motion for a stay of proceedings for a lack of merit on the grounds presented.

Petitioner argues that the circuit court abused its discretion in denying his motion for injunctive relief, in that it relied on a case wholly inapposite to the instant case in coming to its conclusion, and it did not balance the equities properly in light of the facts and circumstances of the instant case.

We find petitioner’s claim to be without merit. The circuit court did not abuse its discretion in denying his motion for injunctive relief. It properly applied the underlying rationale of Sternberg v State Bar of Michigan, 384 Mich 588; 185 NW2d 395 (1971), in finding that the interests of the public would best be promoted by an expeditious handling of petitioner’s misconduct hearing. Further, petitioner’s allegations that he would be irreparably harmed and that the interests to the public would be miniscule in comparison are unfounded.

Affirmed.


author: Mackenzie, J.

text:
    KERN v PONTIAC TOWNSHIP
    Docket No. 77-4350.
    Submitted June 20, 1979, at Lansing.
    Decided November 19, 1979.
    Paul A. Kern, Jr., a land contract vendee of two parcels of land located in the Township of Pontiac, and the tax representative for the property subsequent to his assignment of the land contract to his wife, filed two petitions with the State Tax Commission, an appeal to Oakland Circuit Court and a petition with the Michigan Tax Tribunal appealing the property tax assessments for the years 1970 through 1976. The actions before the State Tax Commission and the circuit court action were transferred to the Tax Tribunal and were consolidated as one action. This action and the prior action commenced in the Tribunal were consolidated. The Tribunal issued an opinion and judgment which set the true cash value at $160,950 for each of the tax years 1972-1976. The petitioner appealed to the Court of Appeals, which, in an unpublished memorandum opinion of August 25, 1977 (Docket No. 77-1179), remanded the entire cause to the Tribunal with an order to substantiate a conclusion with stated findings of fact and to conduct a new hearing if necessary and to receive additional evidence. On remand the Tribunal did not conduct a new hearing or receive any additional evidence, but instead issued an order vacating the 1976 judgment. A revised opinion and judgment were issued on October 17, 1977, again setting the true cash value of the property at $160,950 for each of the tax years 1972 through 1976. The petitioner appeals from the Tribunal’s revised opinion, alleging that tax years 1970 and 1971 were erroneously omitted from consideration by the Tax Tribunal, that the Tribunal did not have competent, material, and substantial evidence on the whole record to sustain its conclusion as to the true cash value, that the Tribunal erred in admitting an undisclosed appraisal into evidence in violation of the Michigan Tax Tribunal Rule, that the Tribunal erred in denying its unopposed motion for summary judgment and that the Tribunal’s revised opinion does not satisfy the remand order to substantiate its conclusions with the stated findings of fact. Held:

      References for Points in Headnotes
    [1] 2 Am Jur 2d, Administrative Law §§ 654, 657-659, 678.
    [2, 3, 5] 2 Am Jur 2d, Administrative Law § 447.
    72 Am Jur 2d, State and Local Taxation §§ 759, 779, 780.
    [3] 29 Am Jur 2d, Evidence § 399.
    Unaccepted offer for purchase or sale of real property as evidence of value. 7 ALR2d 781.
    [4] 2 Am Jur 2d, Administrative Law § 422.
    [5] 72 Am Jur 2d, State and Local Taxation § 782 et seq.

    [6] 2 Am Jur 2d, Administrative Law § 758.
    5 Am Jur 2d, Appeal and Error § 777.
    29 Am Jur 2d, Evidence § 859.
    [7] 73 Am Jur 2d, Summary Judgment §§ 15, 16.
    [8] 73 Am Jur 2d, Summary Judgment §§ 18, 20.
    [9] 2 Am Jur 2d, Administrative Law §§ 455-457.

      1. The Tribunal erred in failing to consider tax years 1970 and 1971 in its proceedings and a remand is necessary for Tribunal factfinding concerning these years. The petitioner asked that years 1970 and 1971 be considered along with 1972 in a circuit court action. This action was later consolidated along with other actions covering other years into a Tribunal consolidated case. A circuit court action initiated by the State Treasurer for nonpayment of 1970 and 1971 taxes was dropped from the Tribunal proceedings for lack of jurisdiction and the tax years 1970 and 1971 were withdrawn from the consolidated proceedings. Dropping the State Treasurer’s case for delinquent taxes did not serve to withdraw years 1970 and 1971 from consideration for the propriety of the taxes for those years.
    2. The record indicates that the Tribunal’s finding of true cash value was based on competent, material and substantial evidence; therefore, its decision must be affirmed on appeal.
    3. The undisclosed appraisal was erroneously admitted into evidence; however, under the applicable Michigan Court Rules, the error was harmless. Other than a general statement that he was surprised, petitioner does not allege he was prejudiced by the evidence nor is any shown by the record. Furthermore, the appraiser explained how he arrived at his assessment and was subjected to vigorous cross-examination. The interests of justice do not require a reversal of the Tribunal’s decision.
    4. Respondent did not come forward with a showing that a material issue of fact existed as required by the court rules; therefore, petitioner would have been entitled to summary judgment if his motion was valid. Petitioner’s motion, however, was not valid because he failed to submit affidavits in support of his motion for summary judgment. This lack of affidavits was fatal to his motion even absent objection by the opposing party.
    5. The order remanding the case to the Tribunal did not mandate a rehearing of the case, only that its opinion reflect a conclusion substantiated by stated findings of fact. The Tribunal’s revised opinion, following remand, met the requirements of separate statements of fact and conclusions. There was compliance with the remand order of the Court of Appeals.
    Affirmed and remanded for further proceedings as to the years 1970 and 1971.
    1. Taxation — Tax Tribunal — Questions of Fact — Questions of Law — Review — Appeal and Error — Constitutional Law.
    A reviewing court is bound by the factual determinations of the Michigan Tax Tribunal and may properly consider only questions of law; if a decision of the Tax Tribunal is not supported by competent, material, and substantial evidence on the whole record it is an error of law within the meaning of the Michigan Constitution (Const 1963, art 6, § 28).
    2. Taxation — Tax Tribunal — Property — True Cash Value — Burden of Proof — Statutes.
    A taxpayer has the burden of proof in establishing the true cash value of his property before the State Tax Tribunal; however, the Tribunal is obliged to make its own finding of true cash value and cannot merely affirm an assessment as placed upon the rolls by the assessing authority (MCL 205.737[3]; MSA 7.650[37][3]).
    3. Taxation — Assessments — Land Value Comparisons — Land Evaluation — Evidence.
    The Court of Appeals looks with disfavor upon establishing a taxation value by comparing the monetary value of the property with the asking price of similarly zoned property because evidence of unaccepted offers of sale of real property has traditionally been suspect as a tool in land evaluation.
    4. Administrative Law — Tax Tribunal — Evidence — Weight — Discretion.
    The weight given to the expertise of witnesses is discretionary with the Michigan Tax Tribunal.
    5. Taxation — Assessments — Tax Tribunal — Assessors — Written Reports — True Cash Value — Notice — Administrative Rules.
    An assessor or expert witness may not testify as to the value of property for tax purposes without submission of a written report unless permission is granted by the Michigan Tax Tribunal for good cause shown; the written appraisal or appraisal card must contain the appraiser’s value conclusions and the basis for them and the supplying of a copy of the report to the opposing party or counsel is necessary (1975 AACS R 205.1252[1]).
    6. Taxation — Tax Tribunal — Administrative Rules — Court Rules — Harmless Error.
    The Michigan Court Rules govern in the absence of an applicable Michigan Tax Tribunal rule; where the interests of justice do not require a reversal of a Tribunal decision and there is no ■applicable Tribunal rule, the decision should be upheld under the harmless error provision of the Michigan Court Rules (1975 AACS R 205.1111[2], GCR 1963, 529.1).
    7. Judgment — Summary Judgment — Motions — Test for Summary Judgment — Issues of Fact — Court Rules.
    The party opposing a motion for summary judgment based upon an alleged lack of a genuine issue as to any material fact, to be successful, must come forward with some showing that a genuine issue of material fact exists (GCR 1963, 117.2[3]).
    8. Judgment — Summary Judgment — Affidavits — Support for Motion — Failure to Object.
    Failure to file affidavits in support of a motion for summary judgment based upon an alleged lack of a genuine issue as to any material fact is fatal to the motion even absent any objection by the party opposing the motion.
    9. Taxation — Tax Tribunal — Questions of Fact — Conclusions of Law — Statutes.
    A decision of the Michigan Tax Tribunal should include, in separate statements, a concise statement of facts and the Tribunal’s conclusions of law (MCL 205.751; MSA 7.650[51]).

      Grant, Schon, Wise & Grant, P.C., for petitioner.

      James P. Sheehy, P.C., for respondent.
    Before: Cynar, P.J., and Mackenzie and L. W. CORKIN, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Mackenzie, J.

Petitioner’s property, Bryn Blaen Farm, is located in the Township of Pontiac, County of Oakland. The property, consisting of two contiguous parcels of land totalling 92.78 acres, is situated on the north side of Lake Angelus Road, east of Joslyn Road and west of Giddings Road. The property is suitable for agricultural use and has been zoned residential-agricultural (R4). Petitioner has utilized the land consistently with the zoning restrictions, maintaining the property as a stock pasturage.

The property was purchased by petitioner Paul A. Kern, Jr., via land contract for $100,000 in 1966. He subsequently assigned the contract to Yvonne Kern, his wife, the present land contract vendee, but remained the representative for taxation purposes.

The true cash value of the property alleged by each of the parties varies considerably in amount. The petitioner, while admitting in testimony that the purchase price of the property was $100,000 in 1966, argued that the true cash value of the property for each of the contested years was $75,000. This figure was alleged as the correct value because the property, having been offered for sale, elicited an offer of that amount only.

Respondent contended that the true cash value of the property had increased since it was purchased by petitioner in 1966. The following true cash value figures were set forth:

1972— $243,150
1973— 243,150
1974— 208,400 (Board of Review amount)
1975— 272,800
1976— 160,950

The average level of assessments in this district, as indicated by the State Tax Commission, and the state equalization factor employed in each of the tax years in question are 50% and 1.00, respectively.

The proofs presented at the hearing consisted of two appraisals of the property conducted by or for the respondent accompanied by supporting testimony. Testimony was also given by petitioner, who stated that he had been in the real estate and appraisal business. Petitioner did not present an appraisal in support of his contended true cash value, nor did he offer witnesses in his behalf.

An appraisal of the property was conducted by Laurence T. Murray, assessor and building department manager for respondent township. Murray used comparable properties from Orion Township and made downward adjustments to those figures, as it was concluded that such property sold at a premium to Pontiac Township property on both an equivalent front footage basis and on a per acre basis. This appraisal resulted in an estimated true cash value of the property in the amount of $160,-950 for the 1976 tax year. While this appeal also covers previous tax years, no appraisals were offered by either side to substantiate their contentions as to the earlier years.

The other appraisal of petitioner’s property admitted by the respondent was in two parts. Respondent’s exhibit 1 was an appraisal of Parcel A and exhibit 2 was an appraisal of Parcel B, both parcels being appraised by Robert H. Scott, a real estate appraiser since 1954. The resulting estimates of true cash value from Scott’s appraisal are in the amounts of $108,900 for Parcel A and $54,900 for Parcel B, resulting in a total cash value of petitioner’s property in the amount of $163,800. This appraisal is an update of an original appraisal conducted on May 15, 1975, and purports to estimate true cash value as of July 23, 1976.

The hearing before the Michigan Tax Tribunal was held on July 29, 1976. The Tribunal issued an opinion and judgment dated October 12, 1976, which set the true cash value of the property at $160,950 for each of the tax years in question. On August 25, 1977, this Court, in a memorandum opinion, remanded the entire cause to the Tribunal with an order to substantiate a conclusion with stated findings of fact and conduct a new hearing if necessary and receive additional evidence. The tribunal did not conduct a new hearing or receive any additional evidence, but instead issued an order vacating the judgment of October 12, 1976. A revised opinion and judgment on remand was issued on October 17, 1977, setting the true cash value of the property at $160,950 for each of the tax years in question. Petitioner appeals as of right from the Tribunal’s revised opinion.

I

Petitioner first contends that tax years 1970 and 1971 were erroneously omitted from consideration by the Tax Tribunal.

The record reveals that in 1972 petitioner filed an Oakland County Circuit Court action, bearing Docket No. 75-112168, petitioning the court to review the assessments of his property for tax years 1970, 1971, and 1972. The action was transferred to the Tax Tribunal and assigned Michigan Tax Tribunal (MTT) Docket No. 3663. This action was later consolidated along with other actions covering other years into MTT Docket No. 4174. Initially, at the hearing, the Tribunal accepted circuit court Docket No. 75-112168, MTT Docket No. 3663, as representing petitioner’s appeal of tax years 1970, 1971, and 1972.

However, there also existed a circuit court case bearing Docket No. 75-121841, which was an action initiated by the State Treasurer for judgment authorizing the sale of the petitioner’s property for the recovery of delinquent taxes for the years 1970 and 1971. The Tax Tribunal noted that the Oakland County Circuit Court had issued a judgment as to No. 75-121841, based on § 67 of the General Property Tax Law, to sell the lands for failure to pay 1970 and 1971 taxes. This action was dropped from the proceedings by the Tribunal because of a lack of jurisdiction to review a circuit court judgment. In refusing to hear Docket No. 75-121841, the Tribunal denied petitioner’s request to hear tax years 1970 and 1971 and withdrew these years from the consolidated proceedings bearing Docket No. 4174.

We agree with petitioner that the Tribunal erred in failing to consider tax years 1970 and 1971 in its proceedings. As initially noted by Judge Gallas, petitioner had asked that years 1970 and 1971 be considered along with 1972 in the circuit court action bearing Docket No. 75-112168. This action was properly consolidated into MTT Docket No. 4174 along with other actions concerning later tax years. The dropping of Docket No. 75-121841 from the Tribunal proceedings did not serve to withdraw years 1970 and 1971 from No. 75-112168. Thus, these years were still subject to review. A remand to the Tribunal for findings concerning tax years 1970 and 1971 is therefore required.

II

Defendant next argues that the Tribunal did not have competent, material, and substantial evidence on- the whole record to sustain its conclusion as to the true cash value.

On appeal from a ruling of the Michigan Tax Tribunal, the reviewing court is bound by the Tribunal’s factual determinations and may properly consider only questions of law. See Const 1963, art 6, § 28, Consolidated Aluminum Corporation, Inc v Richmond Twp, 88 Mich App 229, 231-232; 276 NW2d 566 (1979). It is an error of law within the meaning of the Michigan Constitution if a decision of the Tax Tribunal is not supported by competent, material, and substantial evidence on the whole record. See Fisher-New Center Co v State Tax Comm, 381 Mich 713, 715; 167 NW2d 263 (1969).

The burden of proof is on the taxpayer to establish the true cash value of its property. MCL 205.737(3); MSA 7.650(37)(3). The Tribunal is obliged, however, to make its own finding of true cash value and cannot merely affirm the assessment as placed upon the rolls by the assessing authority. See Consolidated Aluminum Corp, Inc v Richmond Twp, supra, at 232. The definition of "true cash value” is set forth in MCL 211.27; MSA 7.27:

" 'Cash value’ means the usual selling price at the place where the property to which the term is applied is at the time of assessment, being the price which could be obtained for the property at private sale, and not at forced or auction sale. * * * In determining the value the assessor shall also consider the advantages and disadvantages of location, quality of soil, zoning, existing use, present economic income of structures, including farm structures and present economic income of land when the land is being farmed or otherwise put to income producing use, quantity and value of standing timber, water power and privileges, mines, minerals, quarries, or other valuable deposits known to be available in the land and their value.”

Our review of the record leads us to the conclusion that the Tribunal’s decision was based on competent, material, and substantial evidence. The Tribunal noted that although data of sales of truly comparative properties were unavailable, the Murray appraisal was based upon all relevant information that was available. Comparable properties from neighboring Orion Township were employed. Murray made downward adjustments on these figures after concluding that this property sold at a premium to Pontiac Township property.

We do not find error in the fact that Scott considered the "highest and best use” of the land in determining an appraisal figure for petitioner’s property. Since the land was zoned residential-agricultural, it was not error to consider that the topography was suitable for housing. This is not a case where property zoned for a certain use is assessed on the assumption that it will ultimately be zoned for a different use. See Gannon v Cohoctah Twp, 92 Mich App 445; 285 NW2d 323 (1979). Further, it is important to emphasize that potential future use was only one of several factors considered by Scott. As noted by the Tribunal, he considered the fact that the property was located in the Pontiac School District and that the soil was not suited for utilities.

Petitioner assails the fact that in deriving their figures, respondent’s appraisers improperly employed "comparables” that were properties for sale. In Kensington Hills Development Co v Milford Twp, 10 Mich App 368, 373; 159 NW2d 330 (1968), this Court stated:

"This Court also looks with disfavor upon establishing a taxation value by comparing the monetary value of the property with the asking price of similarly zoned property. Evidence of unaccepted offers of sale of real property has traditionally been suspect as a tool in land evaluation.”

We are unable to predicate reversible error upon this contention. An examination of the record reveals that only a few of the comparables employed were properties for sale. Since most of the comparable properties used were not for sale, we do not regard the appraisals as tainted.

Finally, we find no error in the weight given to the expertise of the three witnesses. This was a discretionary matter with the Tribunal, which we do not consider abused.

Ill

Defendant argues that the Tribunal erred in admitting an undisclosed appraisal into evidence in violation of Michigan Tax Tribunal Rule (TTR) 205.1252(1), which states:

"Without permission of the tribunal for good cause shown, an assessor or expert witness may not testify as to the value of property without submission of a written report, such as an appraisal or an appraisal card, containing the person’s value conclusions and the basis therefor. The report shall be supplied to the opposing party or their counsel within 60 days after the counsel conference required by Rule 250.” 1975 AACS R 205.1252(1).

The valuation by defendant’s witness, Mr. Murray, dated July 26, 1976, was made known to petitioner for the first time at the hearing. Petitioner objected to the introduction of the valúation on grounds of surprise. The Tribunal admitted the appraisal into evidence, stating:

"GALLAS: Alright, Mr. Wells, your objection is noted. The Court notes that you have had a Counsel Conference in regard to this and at the Counsel Conference it was stipulated that all exhibits, maps would be furnished to either party and to the Tax Tribunal. Neither one of you have complied with this request. I think, you’re both guilty. You’ve introduced here certain maps at this period of time which were not in evidence before. We do have discretion and leeway in regard to this and in order to facilitate proceedings we’re gonna [sic] overrule your objection at this time and then it is noted and we will proceed.”

The Court’s reasoning behind allowing evidence of the value did not constitute a finding of "good cause”. Thus, the evidence was admitted in violation of TTR 205.1252(1). TTR 205.1111(2) provides that when there is no applicable Tribunal rule, the Michigan Court Rules of 1963, as amended, shall govern. GCR 1963, 529.1 provides:

"No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice.”

We do not believe that, because of the improper admission of Murray’s valuation, the interests of justice require reversal of the Tribunal’s decision. Other than the general statement that he was "surprised”, petitioner does not allege he was prejudiced by the evidence nor do we discern any prejudice from the record. Murray explained how he arrived at his assessment for the property. He explained that his 1976 assessment was lower than the one for 1975 because the prior assessment was based on information not reflective of the true market value. Further, petitioner was able to engage in vigorous cross-examination of Murray.

IV

Petitioner next contends that the Tribunal erred in denying his unopposed motion for summary judgment.

On November 6, 1975, petitioner filed a motion for summary judgment, GCR 1963, 117.2(3), with the Michigan Tax Tribunal, contending that there was no genuine issue as to any material fact because respondent had admitted that petitioner’s property was overassessed. No accompanying affidavits were submitted by petitioner. On November 25, 1975, the Tribunal issued an order denying the motion for summary judgment. It was stated therein that no answer had been filed in opposition to the motion.

The party opposing a motion for summary judgment based on GCR 1963, 117.2(3), must come forward with some showing that a genuine issue of material fact exists to preclude the granting of summary judgment. Peisner v Detroit Free Press Inc, 82 Mich App 153, 163; 266 NW2d 693 (1978). Respondent failed to do so in the instant case and, by that failure, petitioner would have been entitled to summary judgment, assuming that his motion was valid. An examination of the lower court file, however, reveals that no affidavits were submitted by petitioner in support of his motion for summary judgment. The lack of affidavits is fatal to the motion, even absent objection by the party opposing it at the trial court level. Armstrong v Ross Twp, 82 Mich App 77, 81; 266 NW2d 674 (1978). We therefore find no reversible error here.

V

Finally, petitioner argues that the Tribunal’s revised opinion does not satisfy this Court’s memorandum opinion remanding this case to the Tribunal to substantiate its conclusions with stated findings of facts.

This Court previously remanded this case, directing the Tribunal to conduct a new hearing if necessary and receive additional evidence and substantiate a conclusion with stated findings of facts.

MCL 205.751; MSA 7.650(51) requires that a decision of the Tribunal include a concise statement of facts and conclusions of law, stated separately. Examining the revised judgment and opinion of the Tribunal in this case shows that the above standards were complied with. The opinion details the standards employed and the facts to which the standards were applied. The Tribunal delineated in detail its conclusions of true cash value and the exact findings of fact which gave rise to those conclusions. The language used is not merely conclusory, but is explanatory.

The order remanding this case back to the Tribunal did not mandate that the Tribunal rehear the case. It required only that its opinion reflect a conclusion substantiated by stated findings of fact. It was apparently the decision of the Tribunal that enough facts were available to it on the record to comply with the order of remand. We thus find that the remand order of this Court has been complied with.

The opinion of the Tax Tribunal as to tax years 1972-1976 is affirmed. We remand for findings concerning years 1970 and 1971.