            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 11, 2019
               Plaintiff-Appellee,

v                                                                  No. 342180
                                                                   Wayne Circuit Court
MICHAEL DENNIS NAUGHTON,                                           LC No. 16-007174-01-FH

               Defendant-Appellant.


Before: SAWYER, P.J., and O’BRIEN and LETICA, JJ.

PER CURIAM.

        Defendant, Michael Dennis Naughton, appeals as of right his bench trial convictions for
first-degree home invasion, MCL 750.110a(2), and larceny in a building, MCL 750.360.
Naughton was sentenced to 2 to 20 years’ imprisonment for his home invasion conviction and
one to four years’ imprisonment for his larceny conviction. On appeal, Naughton argues that the
trial court erred by denying his motion for a new trial on the basis of newly discovered evidence.
We affirm.

        On June 16, 2016, a homeowner returned home and found her side door unlocked. She
went inside and saw a cooler bag she normally kept in her basement. The cooler bag was full of
other items from her basement and had not been in the hallway by the side door when she left for
work that morning. After the homeowner heard a noise and called out, Naughton appeared and
introduced himself as the son of Deborah Parker, the woman who walked the homeowner’s dog.
Naughton said that he was there at Parker’s request to check on the dog. The homeowner asked
Naughton to leave. Naughton did, taking the homeowner’s cooler bag, claiming it was his. The
homeowner soon found a garbage bag filled with additional household items in her office and
later realized that a jewelry box and collectible coins were missing.

        During Naughton’s trial, Parker testified. Thereafter, Parker called Naughton’s trial
attorney and left a voicemail in which she attempted to clarify part of her trial testimony.
Following Naughton convictions, he moved for a new trial based on Parker’s voicemail, arguing
that it was newly discovered evidence. The trial court denied Naughton’s motion for new trial.
This appeal followed.



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        We review a trial court’s decision to deny a motion for a new trial for an abuse of
discretion. People v Powell, 303 Mich App 271, 276-277; 842 NW2d 538 (2013). “An abuse of
discretion occurs when the trial court renders a decision falling outside the range of principled
decisions.” Id. at 277 (quotation marks and citation omitted). Factual findings are reviewed for
clear error. People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003).

        Our Supreme Court outlined the requirements for a trial court to grant a new trial on the
basis of newly discovered evidence in Cress, 468 Mich at 692, stating,

       [The] defendant must show that: (1) the evidence itself, not merely its materiality,
       was newly discovered; (2) the newly discovered evidence was not cumulative; (3)
       the party could not, using reasonable diligence, have discovered and produced the
       evidence at trial; and (4) the new evidence makes a different result probable on
       retrial. [Quotation marks and citations omitted.]

Newly discovered impeachment evidence can result in a new trial, but it is a rare event and
appropriate only when “(1) the necessary exculpatory connection exists between the heart of the
witness’s testimony at trial and the new impeachment evidence and (2) a different result is
probable on retrial.” People v Grissom, 492 Mich 296, 318; 821 NW2d 50 (2012). Furthermore,
“Michigan courts have expressed reluctance to grant new trials on the basis of recanting
testimony.” People v Canter, 197 Mich App 550, 560; 496 NW2d 336 (1992).

         Parker testified that several people employed her as a dog walker, including the
homeowner and another person who lived on the same block. Parker sometimes brought
Naughton with her, and he would walk one dog as she walked the other. The prosecution asked
Parker if there was ever a time when she stayed at home while Naughton walked the dogs, and
Parker answered, “Not that I recall.” Parker indicated that she walked the homeowner’s dog on
June 16, 2016, but could not remember if she also walked the neighbor’s dog that day or whether
she directed Naughton to go into the homeowner’s home to get her dog. The day after Parker
testified, she called Naughton’s trial attorney and left a message expressing concern that her
testimony may not have been completely accurate. In pertinent part, Parker said,

              One of the questions they asked me [at trial] was if [Naughton] was ever
       alone taking care of the dogs when I wasn’t with him when I was home at my
       apartment, and that part of it is true.

              I don’t think he ever was there alone while I was home, but there were
       times when I was out of town that [Naughton] did take care of dogs for me by
       himself . . . .

        Evidence is “newly discovered” if it “was unknown to the defendant or his counsel at the
time of trial.” People v Rao, 491 Mich 271, 283; 815 NW2d 105 (2012) (quotation marks and
citation omitted). “[W]hen a defendant is aware of evidence before trial, he or she is charged
with the burden of using reasonable diligence to make that evidence available and produce it at
trial.” Id. (emphasis omitted). Accepting Parker’s clarification as true, Naughton undoubtedly
knew that he assisted Parker with her dog-walking service when she was out of town. Because
this fact was known to Naughton at the time of trial, it does not constitute newly discovered

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evidence. Id. At most, Parker’s voicemail involved newly available evidence, which cannot
serve as a basis for a new trial unless the defendant exercised reasonable diligence to produce the
evidence at trial. Id. at 283-284. In this case, Parker was available and testified at trial.
Naughton’s trial attorney simply did not elicit this testimony from Parker. Thus, Parker’s
voicemail does not satisfy the requirements of newly discovered evidence or evidence that could
not have been produced at trial through reasonable diligence. Id.; Cress, 468 Mich at 692.

        Naughton argues that Parker’s voicemail was both material and exculpatory because it
negates her testimony indicating that Naughton did not have permission1 to enter the
homeowner’s residence as Parker’s agent. We disagree. Parker never stated that she asked
Naughton to enter the homeowner’s house on June 16, 2016. Rather, she merely indicated that
she would ask Naughton to walk dogs for her when she was out of town. Because Parker’s
testimony at trial established that she was not out of town on the date in question, her voicemail
had no exculpatory effect. Therefore, even if Parker’s voicemail otherwise met the first three
requirements outlined in Cress, 468 Mich at 692, it is improbable that the voicemail would have
resulted in a different outcome on retrial. The trial court did not abuse its discretion by denying
Naughton’s motion for a new trial.

        Finally, relying solely on People v Burton, 74 Mich App 215; 253 NW2d 710 (1977),
Naughton argues that, at minimum, the trial court should have conducted an evidentiary hearing
to further investigate Parker’s “recantation and/or correction of her testimony.” Burton,
however, was decided by this Court before November 1, 1990, and, therefore, lacks authority as
binding precedent. See MCR 7.215(J)(1). Furthermore, Burton does not stand for the
proposition asserted by Naughton. Although this Court ordered the trial court to conduct a
hearing regarding newly discovered evidence, Burton, 74 Mich App at 219, Burton does not
establish an absolute entitlement to an evidentiary hearing whenever a defendant moves for a
new trial on the basis of newly discovered evidence. Nor do we believe a hearing is necessary or
appropriate in this case. Parker testified that either she walked the homeowner’s dog on June 16,
2016, or Naughton did so while Parker walked a neighbor’s dog. Thus, it is evident that Parker
was not out of town on the day in question, and evidence concerning Naughton’s history of
performing Parker’s dog-walking services when she was away has no bearing on this case.

       Affirmed.



                                                            /s/ David H. Sawyer
                                                            /s/ Colleen A. O’Brien
                                                            /s/ Anica Letica




1
 Among other required elements for first-degree home invasion, the defendant must either break
and enter a dwelling or enter a dwelling without permission. People v Wilder, 485 Mich 35, 43;
780 NW2d 265 (2010).


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