Order                                                                          Michigan Supreme Court
                                                                                     Lansing, Michigan

  December 27, 2018                                                                   Stephen J. Markman,
                                                                                                 Chief Justice

  156408                                                                                    Brian K. Zahra
                                                                                    Bridget M. McCormack
                                                                                          David F. Viviano
                                                                                      Richard H. Bernstein
  PEOPLE OF THE STATE OF MICHIGAN,                                                         Kurtis T. Wilder
            Plaintiff-Appellant,                                                     Elizabeth T. Clement,
                                                                                                      Justices
  v                                                        SC: 156408
                                                           COA: 330359
                                                           Berrien CC: 2014-004247-FH
  KEVIN PATRICK KAVANAUGH,
           Defendant-Appellee.

  _________________________________________/

         On November 19, 2018, the Court heard oral argument on the application for leave
  to appeal the July 6, 2017 judgment of the Court of Appeals. On order of the Court, the
  application is again considered, and it is DENIED, because we are not persuaded that the
  questions presented should be reviewed by this Court.

         WILDER, J. (concurring in part and dissenting in part).

          I concur in denying appellant’s application for leave to appeal, but dissent from the
  majority’s decision to leave intact those aspects of the published Court of Appeals opinion
  holding or implying that when the trial court’s findings are based in part on facts
  established by video evidence, a trial court’s factual findings are entitled to less deference
  on appellate review. Instead, I would reiterate that factual findings of the trial court are
  reviewed for clear error. MCR 2.613(C); People v Bylsma, 493 Mich 17, 26 (2012) (“A
  ruling is clearly erroneous if the reviewing court is left with a definite and firm conviction
  that the trial court made a mistake.”) (quotation marks and citation omitted).

         The Court of Appeals judgment states in part that “we need not rely on the trial
  court’s conclusions as to what the videotape contains.” People v Kavanaugh, 320 Mich
  App 293, 298 (2017). In the present case, the trial court declined to review the video before
  ruling on defendant’s motion to suppress. It is also unclear from the record the degree to
  which the trial court relied on the video evidence in denying defendant’s renewed motion
  to suppress. In my judgment, because there is uncertainty regarding whether the trial court
  made factual findings based on the video, to the extent the trial court’s factual findings
  were based on the video, the Court of Appeals could not have
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reviewed those factual findings for clear error. Therefore, the Court of Appeals’ assertion
that it “need not rely on the trial court’s conclusions as to what the videotape contains” is
obiter dictum that creates confusion about the appropriate standard of review of trial court
factual findings. I believe that this statement is best vacated to avoid allowing an erroneous
statement of law to have precedential effect pursuant to MCR 7.215(C)(2).

       MARKMAN, C.J., joins the statement of WILDER, J.




                          I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          December 27, 2018
       p1226
                                                                              Clerk
