            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   FOR PUBLICATION
                                                                   March 14, 2019
               Plaintiff-Appellant,                                9:00 a.m.

v                                                                  No. 343929
                                                                   Jackson Circuit Court
CASEY LAVERN OLNEY,                                                LC No. 17-005539-FH

               Defendant-Appellee.


Before: SAWYER, P.J., and CAVANAGH and K. F. KELLY, JJ.

PER CURIAM.

        Defendant was charged with first-degree home invasion, MCL 750.110a(2), assault by
strangulation, MCL 750.84, interfering with electronic communications, MCL 750.540(5)(a),
and domestic violence, MCL 750.81(2). Despite the complainant’s absence, the district court, in
accordance with MCL 768.27c, permitted a police officer to testify regarding statements
complainant made as substantive evidence for the purpose of establishing probable cause.
Defendant moved to quash the bind-over in the circuit court. The circuit court held that the
police officer’s testimony was inadmissible because (1) the district court did not declare the
victim-declarant “unavailable”; and (2) the officer’s testimony violated the Confrontation Clause
of the Sixth Amendment of the United States Constitution. We reverse.

                                       I. BASIC FACTS

        Defendant was initially charged with first-degree home invasion and domestic violence.
Although the prosecution subpoenaed the complainant for the preliminary examination, she did
not appear. The prosecutor informed the district court that, despite the alleged victim’s absence,
the prosecution intended to proceed with the preliminary examination on the basis of the
testimony of the law enforcement officer who responded to the scene, Deputy David Thomas of
the Jackson County Sheriff’s Office. The prosecutor stated that Thomas’s hearsay testimony was
admissible under MCL 768.27c, the statutory hearsay exception for statements to law
enforcement officers made by victims of domestic violence under circumstances that would
indicate the statement’s trustworthiness. Defense counsel objected, noting that he did not believe
that statutory hearsay exception could apply to charges other than domestic abuse. The district



                                               -1-
court responded that the exception existed “for the very reason that the prosecutor is
experiencing right now” because the prosecution had subpoenaed “someone that has either been
intimidated or for whatever reason refuses to cooperate.” As the actual examination began, the
prosecutor informed the district court that “based upon what was told to the officer,” he was
adding additional charges of assault by strangulation and interfering with telephonic
communications not included in the original complaint.

        Thomas testified that at approximately 9:30 a.m. on October 18, 2017, he responded to
1554 Wetherby Road in Liberty Township, Michigan, after dispatch informed him of a domestic
assault complaint and a possible violation of a conditional bond. When he arrived on site, the
complainant was standing in the driveway. Thomas described her demeanor was “fairly calm”
and “not hysterical, but she was upset.” When the prosecutor asked Thomas what the
complainant said to him, defense counsel objected and asked for “a continuing objection for any
and all statements that are used that are beyond the purpose of establishing a domestic violence
in this matter.” That is, defense counsel continued to object to Thomas’s testimony in a very
limited way. While apparently conceding that the evidence was admissible for the purposes of
establishing probable cause on the domestic violence charges, defense counsel argued that the
complainant’s statement could not be used to establish probable cause for any other offense. In
response, the district court stated:

       All right. Well we understand the nature of your objection. We briefly discussed
       the matter. The quandary is whether or not the statute permits hearsay given the
       circumstances of it being made to a police officer contemporaneous with the act
       itself and involving domestic [violence] applies to something beyond the charge
       of domestic violence. The Court is taking a flier at this point in time that it does.
       It’s kind of in the spirit of the direction that the legislature seems to be going in
       almost eliminating probable cause or preliminary examinations. So I will allow
       the testimony and it can be reviewed by a superior court if it gets to that stage.

       Thomas testified that the complainant told him that she woke up to find defendant, her
ex-boyfriend, in her apartment. Defendant was there to collect the money that the complainant
admittedly borrowed from him and was supposed to have paid back the day before. The
complainant told Thomas that when she yelled at defendant and told him that he was not
supposed to have contact with her, defendant grabbed her by the neck and threw her to the
ground. Defendant also took the complainant’s cell phone and threw it on the ground and broke
it. Thomas’s report indicated that the complainant reported that she had trouble breathing.
Thomas observed redness and irritation on the complainant’s neck but did not take any
photographs.

       Following cross-examination, the district court reviewed MCL 768.27c and concluded
that Thomas’s “statement is admissible if the information is admissible.” The district court
found that the prosecution established probable cause and defendant was bound over for trial.

       Defendant filed a motion to quash in the circuit court, arguing that use of Thomas’s
testimony to establish probable cause for crimes other than domestic violence violated
defendant’s constitutional right to confront his accuser. The circuit court issued a written
opinion, the reasoning of which departed from the arguments made by defense counsel. The

                                                -2-
circuit court apparently rejected defendant’s claim that the statute applied only to domestic
violence charges. It ruled:

       MCL 768 .27(c)(l)(b) applies to offenses involving domestic violence, that being
       any offense that is connected to a domestic violence incident, for example a Home
       Invasion entering without permission, one of the elements is “that when defendant
       entered the dwelling he/she intended to commit State offense” if the offense is
       domestic violence or related to a domestic violence then the exception would
       apply, but if the offense is larceny for example then the exception would not
       apply.

       However, the circuit court went on to add that when it enacted MCL 768.27c, the
Legislature intended to carve out an additional hearsay exception when the complainant was
unavailable similar to the exception found in MRE 804(b). The circuit court interpreted MCL
768.27c as requiring that “first the victim must be declared unavailable then and only then can
you use this exception to hearsay.” The court then concluded that, because the complainant was
not declared unavailable, the exception did not apply.

       The circuit court also held that the exception could not apply because the statements of
the complainant:

       are testimonial, and that by not having [the complainant] there the Confrontation
       Clause of the sixth amendment was violated. Furthermore the exception to the
       hearsay rule found in MCL 768.27[c], extends on MRE 804(b) and you must first
       get passed [sic] the Confrontation Clause of the Sixth amendment before you can
       use a hearsay exception.

The circuit court granted the motion to quash and dismissed the charges against defendant.

       The prosecution now appeals by right.

                                         II. ANALYSIS

                                 A. STANDARD OF REVIEW

               In order to bind a defendant over for trial in the circuit court, the district
       court must find probable cause that the defendant committed a felony. This
       standard requires evidence of each element of the crime charged or evidence from
       which the elements may be inferred. Absent an abuse of discretion, a reviewing
       court should not disturb the district court’s bindover decision. An abuse of
       discretion occurs when the trial court’s decision falls outside the range of
       principled outcomes. [People v Anderson, 501 Mich 175, 181-182; 912 NW2d
       503 (2018) (quotation marks and citations omitted).]

        “Questions of statutory interpretation are reviewed de novo.” Id. Constitutional issues
are likewise reviewed de novo. People v Pennington, 240 Mich App 188, 191; 610 NW2d 608
(2000).


                                                -3-
         B. THERE IS NO UNAVAILABILITY REQUIREMENT IN MCL 768.27C

       The prosecution argues that the circuit court erred in dismissing the charges against
defendant because, contrary to the circuit court’s decision, MCL 768.27c contains no
requirement that the complainant-declarant be unavailable in order to admit evidence of a
statement that otherwise satisfies the statutory requirements. We agree.

       “In MCL 768.27c, the Legislature determined that under certain circumstances,
statements made to law enforcement officers are admissible in domestic violence cases.” People
v Meissner, 294 Mich App 438, 445; 812 NW2d 37 (2011). This provision is “a substantive rule
of evidence reflecting specific policy concerns about hearsay[1] in domestic violence cases.” Id.
MCL 768.27c(1) provides:

              (1) Evidence of a statement by a declarant is admissible if all of the
       following apply:
               (a) The statement purports to narrate, describe, or explain the infliction or
       threat of physical injury upon the declarant.
              (b) The action in which the evidence is offered under this section is an
       offense involving domestic violence.
               (c) The statement was made at or near the time of the infliction or threat of
       physical injury. Evidence of a statement made more than 5 years before the filing
       of the current action or proceeding is inadmissible under this section.
              (d) The statement was made under circumstances that would indicate the
       statement’s trustworthiness.
               (e) The statement was made to a law enforcement officer.
       The circuit court erred because it imposed an additional condition not found in the plain
and unambiguous language of MCL 768.27c.

               When interpreting a statute, our primary goal is to ascertain and give
       effect to the Legislature’s intent. People v Gardner, 482 Mich 41, 50; 753 NW2d
       78 (2008). “If the statute’s language is clear and unambiguous, we assume that
       the Legislature intended its plain meaning and we enforce the statute as written.”
       People v Weeder, 469 Mich 493, 497; 674 NW2d 372 (2004). In so doing, we
       assign each word and phrase its plain and ordinary meaning within the context of
       the statute. People v Kowalski, 489 Mich 488, 498; 803 NW2d 200 (2011); MCL
       8.3a. We must also avoid any construction that would render any part of a statute
       surplusage or nugatory, if possible. People v Rea, 500 Mich 422, 428; 902 NW2d
       362 (2017). [People v Sharpe, 502 Mich 313, 326-327; 918 NW2d 504 (2018).]



1
 “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.’ ” MRE 801(c).


                                                -4-
Nothing in the statutory language of MCL 768.27c suggests that the Legislature intended to
impose an unavailability requirement. The Legislature did not use the word “unavailable” or its
equivalent at any point in drafting the statute. We decline to judicially impose a requirement that
has no basis in the statutory language.

         Moreover, imposing an unavailability requirement would essentially nullify the statute.
In Meissner, this Court held that MCL 768.27c permitted the prosecution to introduce a domestic
violence victim’s statements to law enforcement after the victim recanted her allegations during
her trial testimony. Meissner, 294 Mich App at 450-451. Of particular importance to the
resolution of this case, the Meissner Court also recognized that “[c]ertain testimony offered
pursuant to MCL 768.27c may be subject to challenge based on the Confrontation Clause” of the
United States Constitution and its state constitutional counterpart. Id. at 446 n 2. This warning
presupposes that the absence of the declarant – rather than being a requirement for employing the
statute, as the circuit court held in this case – might preclude the exception’s application at trial.

       The circuit court erred as a matter of law in holding that there is an “unavailability”
requirement under MCL 768.27c. It consequently abused its discretion when it granted
defendant’s motion to quash on that basis.

      C. THE RIGHT OF CONFRONTATION AT A PRELIMINARY EXAMINATION

        The prosecution next argues that because Thomas’s testimony concerning the
complainant’s statement was admissible under MCL 768.27c, the prosecution established
probable cause and the circuit court abused its discretion when it determined that defendant’s
right of confrontation was violated. We agree.

       In contrast to the evidence needed to convict a defendant at trial, the quantum of evidence
needed to bind over a defendant is much lower. Our Supreme Court has explained:

              The purpose of the preliminary examination is to determine whether a
       felony has been committed and whether there is probable cause for charging the
       defendant therewith. If there is probable cause, the magistrate must bind the
       defendant to appear before the circuit court or other court having jurisdiction of
       the cause, for trial.

               As this Court explained in People v Yost, [468 Mich 122, 125-126; 659
       NW2d 604 (2003)], “[p]robable cause requires a quantum of evidence ‘sufficient
       to cause a person of ordinary prudence and caution to conscientiously entertain a
       reasonable belief’ of the accused's guilt.” This standard is less rigorous than the
       requirement to find guilt beyond a reasonable doubt to convict a criminal
       defendant, and “the gap between probable cause and guilt beyond a reasonable
       doubt is broad . . .” [People v Plunkett, 485 Mich 50, 57; 780 NW2d 280 (2010)
       (quotation marks and footnotes omitted).]

“The testimony of the complainant is not necessarily required at every preliminary examination
if sufficient other evidence is produced.” People v Meadows, 175 Mich App 355, 359; 437
NW2d 405 (1989). The preliminary examination is a statutory right and the rules of evidence
apply.       See MCL 766.11b(1) (“[t]he rules of evidence apply at the preliminary
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examination . . .”) and MCR 6.110(C) (“[t]he court must conduct the examination in accordance
with the Michigan Rules of Evidence.”)

       The evidentiary threshold for a preliminary examination is a probable cause
determination whether a crime has been committed and, if so, whether defendant was the culprit.
Only legally admissible evidence may be used. The domestic abuse exception to the hearsay rule
as embodied in MCL 768.27c allows for a declarant’s statement to be admitted under certain
circumstances and is, therefore, legally admissible evidence. The district court properly
concluded that, based on Thomas’s testimony regarding the complainant’s statements, there was
probable cause to believe defendant committed the crimes of home invasion, domestic abuse,
strangulation, and interference with an electronic device.

        As previously stated, the circuit court was operating under the misconception that the
complainant had to be “unavailable.” On that basis alone, reversal is required. In the event the
parties or the circuit court are inclined to revisit the confrontation issues, we provide the
following guidance. In this case, the prosecution concedes that, at trial, despite MCL 768.27c,
the Sixth Amendment would likely bar the admission of Thomas’s testimony to relate what the
complainant said. The amendment provides:

               In all criminal prosecutions, the accused shall enjoy the right to a speedy
       and public trial, by an impartial jury of the State and district wherein the crime
       shall have been committed, which district shall have been previously ascertained
       by law, and to be informed of the nature and cause of the accusation; to be
       confronted with the witnesses against him; to have compulsory process for
       obtaining witnesses in his favor, and to have the Assistance of Counsel for his
       defence. [US Const, Am VI.]

        As previously stated, in Meissner this Court expressly recognized that MCL 768.27c may
run afoul of the Confrontation Clause if the declarant is not available to testify at trial.
However, the United States Supreme Court has never directly held that the Confrontation Clause
applies at preliminary hearings. The United States Supreme Court has stated that “[t]he right to
confrontation is basically a trial right.” See Barber v Page, 390 US 719, 725; 88 S Ct 1318; 20 L
Ed 2d 255 (1968). Similarly, in Pennsylvania v Ritchie, 480 US 39, 52-53; 107 S Ct 989; 94 L
Ed 2d 40 (1987), the Court concluded that the right to confrontation “is a trial right, designed to
prevent improper restrictions on the type of questions that defense counsel may ask during cross-
examination.” Id. at 52.

         State and federal courts that have considered this precise issue have unanimously rejected
the argument that the Confrontation Clause applies at preliminary examinations. See, e.g.,
Commonwealth v Ricker, 120 A3d 349, 357; 2015 Pa Super 153 (2015) (holding that hearsay
evidence alone is sufficient to establish probable cause at preliminary hearing); State v O’Brien,
354 Wis 2d 753, 773; 2014 WI 54; 850 NW2d 8 (2014) (“Our precedent is consistent with that
of other jurisdictions which have determined that a defendant’s right to confront accusers is a
trial right that does not apply to preliminary examinations.”); Peterson v California, 604 F3d
1166, 1169-1170 (CA 9, 2010) (concluding that “the admission of hearsay statements at a
preliminary hearing does not violate the Confrontation Clause”); United States v Andrus, 775
F2d 825, 836 (CA 7, 1985) (holding “the sixth amendment does not provide a confrontation right

                                                -6-
at a preliminary hearing”); United States v Harris, 458 F2d 670, 677-678 (CA 5, 1972) (“There
is no Sixth Amendment requirement that [the defendant] be allowed to confront [the witness] at a
preliminary hearing prior to trial.”); Whitman v Superior Court, 54 Cal 3d 1063; 820 P2d 262
(1991) (“A preliminary hearing is not designed to be a dress rehearsal for the trial.”).

        Therefore, while the rules of evidence apply during a preliminary examination, the right
of confrontation does not. In light of the relatively low burden of establishing probable cause
that a crime has been committed and that defendant was the one who likely committed it, the
circuit court abused its discretion when it granted defendant’s motion to quash on the basis that
defendant’s right of confrontation was violated.

        Reversed and remanded with instructions to reinstate the charges against defendant. We
do not retain jurisdiction.

                                                           /s/ David H. Sawyer
                                                           /s/ Mark J. Cavanagh
                                                           /s/ Kirsten Frank Kelly




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