                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 29, 2016
              Plaintiff-Appellant,

v                                                                  No. 327905
                                                                   Wayne Circuit Court
TREMEL ANDERSON,                                                   LC No. 15-001051-01-AR

              Defendant-Appellee.


Before: SAAD, P.J., and JANSEN and M. J. KELLY, JJ.

PER CURIAM.

        The prosecution appeals by leave granted1 the circuit court order denying the
prosecution’s motion to reverse the district court order dismissing the charges of assault with
intent to commit murder (AWIM), MCL 750.83, carrying a concealed weapon, MCL 750.227,
felonious assault, MCL 750.82, and carrying a firearm during the commission of a felony
(felony-firearm), MCL 750.227b. We affirm.

       This case arises from an argument between defendant and the victim, Michael Larkins,
on December 24, 2014, at approximately 11:30 p.m. Larkins testified during the preliminary
examination that defendant was driving him home via the Lodge Freeway when the argument
began. According to Larkins, defendant became upset with him because he did not purchase a
swing for their infant son, and defendant expressed anger regarding Larkins’s ex-girlfriend.
Defendant pulled a gun from between her thighs and told Larkins that she was going to kill him.
Defendant eventually exited the freeway and pulled over. The two continued to argue while
defendant pointed the gun at Larkins. Larkins had in his possession a spare set of keys to
defendant’s car, which defendant demanded. Larkins attempted to negotiate a trade of the keys
for Christmas gifts that were in defendant’s car. Larkins told defendant that he would give her
the keys if she took him home and removed the Christmas gifts from her car. Defendant called
911. Larkins testified that defendant called the police in order to create a diversion. According
to Larkins, he yelled for help while defendant was on the phone with the police. Defendant then
attempted to fire a gunshot in Larkins’s direction, but the gun did not discharge. Larkins fled


1
 See People v Anderson, unpublished order of the Court of Appeals, entered December 22, 2015
(Docket No. 327905).


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defendant’s car and began running away. He heard defendant fire at least three more gunshots in
his direction. Larkins was not hit with any of the bullets. Defendant eventually left the scene of
the incident, and Larkins called the police from a neighbor’s telephone.

       Larkins was the only witness to testify during the preliminary examination, and the
prosecution did not present any additional evidence. The district court refused to bind over
defendant for trial, explaining that it did not find Larkins credible. The district court reasoned
that Larkins’s preoccupation with the Christmas gifts for his family indicated that defendant did
not point a handgun at him and threaten to kill him, and Larkins’s testimony was “all over the
place everywhere.” The court further explained that the prosecution did not present any
additional evidence to corroborate Larkins’s story. Accordingly, the district court dismissed the
case for insufficient evidence. The prosecution appealed to the circuit court, which treated the
claim of appeal as a motion and denied it without explanation.

       The prosecution argues that the district court abused its discretion in failing to bind over
defendant for trial. We disagree.

       “A district court’s bindover decision that is contingent on the factual sufficiency of the
evidence is reviewed for an abuse of discretion.” People v Norwood, 303 Mich App 466, 468;
843 NW2d 775 (2013). A court “abuses its discretion when its decision falls outside the range of
reasonable and principled outcomes.” People v Lyon, 310 Mich App 515, 517; 872 NW2d 245
(2015). “ ‘The standard for reviewing a decision for an abuse of discretion is narrow; the result
must have been so violative of fact and logic that it evidences a perversity of will, a defiance of
judgment, or an exercise of passion or bias.’ ” People v Hudson, 241 Mich App 268, 276; 615
NW2d 784 (2000) (citation omitted). “ ‘A trial court necessarily abuses its discretion when it
makes an error of law.’ ” Lyon, 310 Mich App at 517 (citation omitted). “This Court reviews de
novo the bindover decision to determine whether the district court abused its discretion, giving
no deference to the circuit court’s decision.” People v Redden, 290 Mich App 65, 83; 799 NW2d
184 (2010).

        In order for the district court to bind over a defendant to the circuit court, the district
court must find probable cause that the defendant committed a felony. People v Seewald, 499
Mich 111, 116; 879 NW2d 237 (2016). “ ‘The purpose of a preliminary examination is to
determine whether there is probable cause to believe that a crime was committed and whether
there is probable cause to believe that the defendant committed it.’ ” People v Cohen, 294 Mich
App 70, 74; 816 NW2d 474 (2011) (citations omitted). “Probable cause is established by
evidence ‘sufficient to cause a person of ordinary prudence and caution to conscientiously
entertain a reasonable belief of the accused’s guilt.’ ” Redden, 290 Mich App at 83-84 (citation
omitted). “This standard requires ‘evidence of each element of the crime charged or evidence
from which the elements may be inferred.’ ” Seewald, 499 Mich at 116 (citation omitted). The
prosecution does not need to prove each element of the crime beyond a reasonable doubt during
the preliminary examination, but the prosecution must present some evidence on each element of
each charged crime. Redden, 290 Mich App at 84. The district court must consider the weight
and competency of the evidence, as well as the credibility of the witnesses, during the
preliminary examination. Id. However, “[i]f the evidence conflicts or raises a reasonable doubt
concerning the defendant’s guilt, the defendant should nevertheless be bound over for trial, at
which the trier of fact can resolve the question.” Id. In People v Yost, 468 Mich 122, 127-128;

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659 NW2d 604 (2003), our state’s Supreme Court reiterated that the district court has the
authority to consider the credibility of witnesses, but may not refuse to bind over a defendant for
trial if the evidence is conflicting or raises a reasonable doubt regarding the defendant’s guilt.

         We first note that the circuit court failed to follow proper procedures when it dismissed
the appeal without explanation. MCR 7.103(A)(1) provides that the circuit court has jurisdiction
over an appeal as of right filed by an aggrieved party from a final judgment or order of the
district court. The appeal as of right was properly filed within 21 days after entry of the order.
See MCR 7.104(A)(1) (noting that an appeal of right must be filed within “21 days or the time
allowed by statute after entry of the judgment, order, or decision appealed”). Therefore, the
appeal was an appeal as of right, and the circuit court did not have discretion to deny leave to
appeal. MCR 7.114(B) provides, “The circuit court shall decide the appeal by oral or written
opinion and issue an order. The court’s order is its judgment.” In this case, the circuit court did
not issue an oral or written opinion, and instead dismissed the appeal without explanation. In
fact, the circuit court treated the prosecution’s appeal as a motion to reverse the district court’s
dismissal order and dismissed the appeal as if it were a motion. In spite of the circuit court’s
failure to properly address the claim of appeal, we decide the underlying issue because we
review de novo a bindover decision and give no deference to the circuit court’s decision. See
Redden, 290 Mich App at 83.

        The district court did not abuse its discretion in refusing to bind defendant over to the
circuit court because it was within the district court’s discretion to determine the credibility of
the prosecution’s witness. The parties do not dispute that Larkins’s testimony, if believed,
provided evidence of each element of the charged crimes or evidence from which the elements
may be inferred. See Seewald, 499 Mich at 116. However, the court explained that Larkins was
not a credible witness because he testified that he was preoccupied with the Christmas gifts in
defendant’s car. The court reasoned that the fact that Larkins was concerned about the Christmas
gifts made his testimony that defendant threatened him and pointed a gun at him unbelievable.
The court further explained that Larkins’s testimony was “all over the place everywhere.”
Larkins testified regarding several irrelevant topics, and the district court often had to direct
Larkins to stay on point. We conclude that it was within the district court’s discretion to hear
Larkins’s testimony and determine that he was not credible. See Yost, 468 Mich at 127-128;
Redden, 290 Mich App at 84. The court provided several reasons for its decision, which were
based on the content of Larkins’s testimony. Therefore, the court’s decision that Larkins’s
testimony was incredible was not so violative of fact and logic that it demonstrated a perversity
of will, a defiance of judgment, or an exercise of passion or bias. See Hudson, 241 Mich App at
276.2




2
  We note that the legal standard requires this Court to defer to the district court’s credibility
determination. The dissent would substitute its judgment on appeal for that of the district court,
which is contrary to the legal standard articulated above. If we were to conclude otherwise,
every credibility finding would be subject to review.


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        Furthermore, the district court did not abuse its discretion in reasoning that the
prosecution failed to present corroborating evidence. The testimony of a single witness may be
sufficient to persuade a jury that a defendant is guilty beyond a reasonable doubt. See People v
Jelks, 33 Mich App 425, 432; 190 NW2d 291 (1971). In this case, the court reasoned that
Larkins’s story was incredible, and the lack of corroborating evidence, such as a recovered
handgun, spent shell casings, a 911 telephone call recording, or other witness testimony, required
the district court to dismiss the charges. Thus, the district court did not conclude that the
prosecution was required to present more than one witness in order to bind over defendant to the
circuit court. Instead, the court reasoned that corroborating evidence was necessary in light of its
conclusion that Larkins was not credible. Therefore, the district court’s conclusion did not
constitute an abuse of discretion.

        In addition, the prosecution’s argument that the district court should apply the standard
used by a circuit court in deciding a motion for a directed verdict is without merit. As discussed,
caselaw from this Court and the Michigan Supreme Court outlines the proper legal standards
regarding the district court’s probable cause determination. See, e.g., Yost, 468 Mich at 127-128;
Redden, 290 Mich App at 84. We are bound to follow decisions of our state’s Supreme Court, as
well as published cases of this Court. See MCR 7.215(J)(1) (noting that this Court must follow a
legal rule established in a prior published decision of this Court issued on or after November 1,
1990, that was not reversed or modified by a special panel of this Court or our state’s Supreme
Court); People v Tierney, 266 Mich App 687, 713; 703 NW2d 204 (2005) (“As long as case law
established by our Supreme Court remains valid, ‘this Court and all lower courts are bound by
that authority.’ ”) (citation omitted). Accordingly, the prosecution’s argument that the directed
verdict standard should apply in this context is without merit.

       Affirmed.


                                                             /s/ Kathleen Jansen
                                                             /s/ Michael J. Kelly




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