                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 14, 2016
               Plaintiff-Appellee,

v                                                                   No. 325031
                                                                    Wayne Circuit Court
JASON JAMES STRONG,                                                 LC No. 14-002270-FC

               Defendant-Appellant.


Before: MURRAY, P.J., and STEPHENS and RIORDAN, JJ.

PER CURIAM.

       Defendant appeals by right his bench trial convictions for assault with intent to do great
bodily harm less than murder, MCL 750.84, assault with intent to maim, MCL 750.86, and
felonious assault, MCL 750.82. He was sentenced to concurrent sentences of 30 months to 10
years for the assault with intent to commit great bodily harm conviction, 30 months to 10 years
for the assault with intent to maim conviction, and 2 to 4 years for the felonious assault
conviction. We affirm.

        The only issue on appeal is whether the trial court abused its discretion by allowing the
prosecution to delete from its witness list an endorsed witness, James Seiler. Defendant contends
that Seiler was a crucial eyewitness, and that his daughter’s testimony as to Seiler’s inability to
attend trial for medical reasons was that of a lay witness that was biased and uncorroborated.
Defendant argues that the prosecution did not make a sufficient showing that Seiler was
physically or medically unable to attend the trial. MRE 804(a)(4).

        The trial court’s determination of whether a witness is “unavailable” under MRE 804(a)
will not be disturbed on appeal unless a clear abuse of discretion is shown. People v Bean, 457
Mich 677, 684; 580 NW2d 390 (1998). An abuse of discretion will be found only if the trial
court’s decision falls outside the range of reasonable and principled outcomes. People v Duncan,
494 Mich 713, 722-723; 835 NW2d 399 (2013).

       In support of his argument defendant relies upon the holdings of People v Dye, 431 Mich
58; 427 NW2d 501 (1988), Bean, 457 Mich 677, and People v James (After Remand), 192 Mich
App 568; 481 NW2d 715 (1992), but those cases are not helpful to a resolution of this case
because each involved either a confrontation clause issue, or the admission of a preliminary
exam transcript under MRE 804. See Dye, 431 Mich at 64-67, 89, 98-99 (the Supreme Court
held that the defendant’s constitutional right to confront his accusers was not violated by the use
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of preliminary examination testimony as substantive evidence at his re-trial if the prosecution
exercised due diligence to produce the absent witness and the testimony bore adequate indicia of
reliability); Bean, 457 Mich at 684-690 (the Supreme Court held under MRE 804(a) that the
preliminary examination transcript of a jury could not be read to the jury in part because the
witness was a key witness in the prosecution’s case against the defendant and the prosecution
had not exercised due diligence in producing his presence at trial), and James (After Remand),
192 Mich App at 572 (this Court held under MRE 804 that the “prosecutor’s failure to take any
action during [a recess in the trial] undermines whatever degree of good faith we might
otherwise be willing to afford,” and that the efforts made by the prosecution did not demonstrate
due diligence).

        As defendant recognizes, this was not a case where the prosecution could not locate the
witness and asked that the witnesses’ prior testimony be read to the court.1 Thus, as the trial
court noted during the trial on November 4, 2014, MRE 804(a)(4) does not come into play, and
so of course neither do the cases applying that rule. Instead, the proper question—and the one
decided by the trial court—is whether there was good cause to allow the prosecution to delete
Seiler from its witness list. See MCL 767.40a(4), People v Perez, 469 Mich 415, 420; 670
NW2d 655 (2003), and People v Cook, 266 Mich App 290, 295; 702 NW2d 613 (2005).
Defendant has not provided any argument addressing the “good cause” standard, other than to
argue the “unavailability” standard under the inapplicable MRE 804. We therefore can affirm on
that ground alone. See People v McGraw, 484 Mich 120, 131 n 36; 771 NW2d 655 (2009).

        Nevertheless, there is no dispute that the prosecutor complied with the statute by seeking
leave of the court to delete Seiler from its witness list, MCL 767.40a(4). And, we conclude that
the trial court did not abuse its discretion in allowing the prosecution to delete Seiler from its
witness list as good cause was established through the testimony of Robin Strong. At the
conclusion of Robin Strong’s testimony on July 22, the prosecutor was granted permission to
question Robin about her father’s absence from trial. At that time Robin testified that Seiler
(who was 82) had been taken to the hospital the week before, was dehydrated, had a virus, and
was weak. As a result he was not, according to Robin, able to come to court. Defendant crossed
examined Robin on this issue, and established that although Seiler was in the hospital overnight
the week before, he was not currently dehydrated.

       Prior to issuing its verdict on November 4, the court found that, based on Robin’s
testimony and the argument of counsel, Seiler was an “over 80-year-old frail man who has
medical conditions” that made it impossible for him to come to court. Though it would have
been preferable for the trial court to have obtained some independent and objective evidence as




1
  Indeed, both parties knew the whereabouts of James Seiler the entire time trial was occurring,
and both parties listed him as a witness. In addition, there is a serious question whether this issue
was waived, as on July 22, at the conclusion of the prosecution’s proofs, the parties stipulated
that the remaining endorsed witnesses were waived.


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to Seiler’s condition on November 4,2 the trial court’s reliance on Robin’s testimony and the
representations of the prosecutor that Seiler was too frail to come to court and testify was not
unreasonable, especially when defendant did not produce any evidence that put into question
Robin’s testimony.3 And, the fact that Robin was also the victim was patently clear to the trial
court, and could have been taken into account in its ruling on this issue. As such, and in light of
the great deference given to the trial court, we cannot conclude that the trial court abused its
discretion in allowing the prosecution to delete Seiler as a witness.

       Affirmed.



                                                            /s/ Christopher M. Murray
                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Michael J. Riordan




2
 Were this issue governed by the standards of MRE 804, the trial court’s reliance on evidence of
Seiler’s condition in July, for its conclusion in November, may have been problematic. See
Duncan, 494 Mich at 726.
3
  Although defendant argued that Seiler’s presence was required because he could give beneficial
testimony concerning defendant’s reaction to the loss of his grandmother which in turn
contributed to his mental illness disorder, there was considerable testimony from both Robin and
Amber (Robin’s daughter) affirming that the loss of his grandmother was very detrimental to
defendant and that his behavior had changed following her death. There was also expert
testimony concerning defendant’s mental disorders. Additionally, Seiler’s testimony as to the
assault would be cumulative to Robin and Amber’s testimony, especially since there is no
dispute that Seiler did not witness the entire assault.


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