                           STATE OF MICHIGAN

                             COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     November 27, 2018
                Plaintiff-Appellee,

v                                                                    No. 331457
                                                                     Eaton Circuit Court
JAMES EVERETT FRISON,                                                LC No. 15-020116-FH

                Defendant-Appellant.


                                        AFTER REMAND

Before: MARKEY, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.

BOONSTRA, J. (dissenting).

        I respectfully dissent. My review of the record leads me to a starkly different conclusion
than that reached by the majority. And it leads me to conclude that defendant has failed to do
that which we afforded him an opportunity to do.1 Specifically, we previously remanded this
case to the trial court for a Ginther2 hearing, stating:

                On this record, we hold that defendant has not at this juncture established
         the “factual substantiality” of his ineffective assistance of counsel claim, see
         Ginther, 390 Mich [436,]443[; 212 NW2d 922 (1973)]. However, we also
         conclude that defendant has sufficiently demonstrated the potential merit of that
         claim to warrant a remand for an evidentiary hearing in the trial court to aid
         appellate review of his claim. See People v Hernandez, 443 Mich 1, 14-15; 503
         NW2d 629 (1993), abrogated on other grounds by People v Mitchell, 454 Mich
         145; 560 NW2d 600 (1997); see also MCR 7.211(C)(1)(a)(ii). We therefore are
         providing defendant an opportunity to demonstrate at a Ginther hearing that trial
         counsel’s failure to present the evidence in question deprived him of a substantial


1
  Reviewing courts generally presume that counsel has provided effective assistance, and the
defendant has the burden to overcome this presumption. People v Davis, 250 Mich App 357,
368-369; 649 NW2d 94 (2002).
2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                 -1-
       defense, and that, if that evidence had been presented to the jury, it would have
       corroborated defendant’s version of events such that there is a reasonable
       probability that the jury would have concluded that the prosecution had not
       proved its case beyond a reasonable doubt. See [People v] Armstrong, 490 Mich
       [281,] 290[; 806 NW2d 676 (2011)].

People v Frison, unpublished per curiam opinion of the Court of Appeals, issued December 5,
2017 (Docket No. 331457) (emphasis added).

       Following our remand, the trial court conducted a Ginther hearing, at which five
witnesses testified,3 and at which repair receipt records and telephone records (which defendant
has contended his trial counsel should have introduced or used at trial) were admitted into
evidence. Following the Ginther hearing, the trial court entered an order stating as follows:

               This Court finds that Steven A. Freeman’s representation of James Frison
       fell below an objective standard of reasonableness. This Court further finds that
       Freeman’s failure to introduce certain records did not deprive James Frison of a
       substantial defense because there is not a reasonable probability that the
       documents corroborate Frison’s version of events or that the jury would have
       believed him over Kees and Barbara Vandervelden.

        The majority nonetheless concludes that the evidence introduced at the Ginther hearing
“clearly supported trial counsel’s original admission . . . that he had been ineffective and failed to
introduce exculpatory evidence.” The majority therefore reverses defendant’s conviction and
remands for a new trial. I disagree.

        I am first compelled to point out that although the trial court found that trial counsel’s
representation of defendant fell below an objective standard of reasonableness, it did so based on
this Court’s earlier observation that trial counsel had admitted to having been ineffective, and on
our direction regarding the proper focus of the Ginther hearing (as set forth earlier in this
opinion). In other words, there being two prongs to an ineffective assistance of counsel analysis
under Strickland v. Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984),4 and it
essentially having been assumed—based on trial counsel’s admission—that the first prong was
satisfied, the focus was to be on the second prong of the analysis.


3
  The witnesses who testified at the Ginther hearing were: defense trial counsel Steven A.
Freeman, complainant Barbara Vandervelden, complainant Kees Vandervelden, Alan Duck, and
defendant.
4
  “Under Strickland v. Washington, establishing ineffective assistance requires a defendant to
show (1) that trial counsel’s performance was objectively deficient, and (2) that the deficiencies
prejudiced the defendant. Prejudice means ‘a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’ ” People v
Randolph, 502 Mich 1; 917 NW2d 249 (2018).


                                                 -2-
        Despite his admission of ineffectiveness, trial counsel’s testimony at the Ginther hearing
actually undermines the assumption that his representation fell below an objective standard of
reasonableness and therefore satisfied the first prong of the Strickland analysis. At the Ginther
hearing, trial counsel reiterated his belief that he had been ineffective in representing defendant
because he had not obtained certain repair receipt records and telephone records that he could
have used to try to impeach the Vanderveldens with regard to (1) their knowledge of repairs that
were made to a lowboy trailer that was used to transport several pieces of equipment (including
the Komatsu excavator that was the subject of the embezzlement charge against defendant),5 and
(2) their communications with defendant during the relevant time period. Notably, however, trial
counsel further testified in pertinent part:

       Q      Do you think the average attorney of competence would have anticipated
       needing to get these records prior to trial?

       A       No.

       Q      So you -- I mean, you wouldn’t make it a normal practice to get all these
       records ahead of time on an issue like this, would you?

       A       I would not.

       Q      Okay. So really, you’ve indicated that if you had a similar case, are you
       gonna do something different?

       A       No.

        In my judgment, trial counsel’s testimony undermines the assumed satisfaction of the
first prong of a Strickland analysis.6 It demonstrates not that his conduct was “objectively
unreasonable,” but rather that, with the benefit of hindsight, he now wishes that he had obtained
certain documents so that he could have tried to use them for impeachment purposes. But being
“ineffective” in that sense is simply not the same as having provided “ineffective assistance of
counsel” in the Strickland sense. In evaluating an ineffective assistance of counsel claim, a
reviewing court must make every effort “to eliminate the distorting effects of hindsight,”
Strickland, 466 US at 689, including being mindful that no expectation should exist “that
competent counsel will be a flawless strategist or tactician,” Harrington v Richter, 562 US 86,


5
  The undisputed record reflects that defendant picked up the Komatsu excavator in Charlotte on
or about August 26, 2014 for delivery to Saugatuck and that it was located by police in Lansing
in March 2015.
6
  The majority inaccurately characterizes trial counsel’s testimony at the Ginther hearing as
reflecting a “change of heart after being advised that a grievance would be filed against him.”
To the contrary, the record reflects that trial counsel consistently continued to maintain—even
after a brief colloquy about a possible grievance—that he had been ineffective, explaining how
he might have used the records at trial and what impact they might have had.


                                                -3-
110; 131 S Ct 770; 178 L Ed 2d 624 (2011). “[A]n attorney may not be faulted for a reasonable
miscalculation or lack of foresight or for failing to prepare for what appear to be remote
possibilities.” Id.

        Defendant has presented no evidence—apart from trial counsel’s own “admission” of
ineffectiveness—to support a finding that trial counsel’s performance was objectively deficient.
But as this Court has noted, “it is difficult to conceive of a situation in which a trial attorney,
reflecting on his or her performance in a trial, could not, with the benefit of hindsight and the
luxury of amply time for consideration, find something in his or her performance that he or she
could have done better. That, however, is not the standard for assessing whether trial counsel
was effective.” People v Blevins, 314 Mich App 339, 352; 886 NW2d 456 (2016). Trial
counsel’s testimony that an attorney of average competence would not have anticipated needing
to obtain the records before trial, and that trial counsel himself would do nothing differently in a
similar situation today, not only does not support defendant’s claim of ineffective assistance of
counsel, but undercuts the very notion that trial counsel’s performance was objectively deficient
such that it could constitute ineffective assistance of counsel.

       Even more significantly, however, trial counsel’s testimony supports the conclusion that
the second Strickland prong, i.e., that it be reasonably probable that defense counsel’s use of the
records in question at trial would have made a difference in the outcome of defendant’s trial, also
was not satisfied. At the Ginther hearing, trial counsel acknowledged that the records would not
have negated the effect of defendant’s contemporaneous admissions to law enforcement officers:

       Q       This is a confession case, wasn’t it?

       A      My memory is that the defendant did make a statement to law
       enforcement, yes.

       Q      And he admitted to letting Joe Crenshaw use it for $200.00, the excavator;
       do you recall that?

       A       I think, I think he did. Yes.

       Q      Kay.      Would these, these phone records or anything negate that
       confession?

       A       No, I don’t think so.

       Q      And at trial, you basically call [defendant] a liar; right? I mean, you stood
       up in your closing and said he lied to the detectives.

       A       I don’t recall.

       Q       Okay. But you really didn’t have any way to combat that confession, did
       ya?

       A      Well, no. It was lawfully received by law enforcement. It certainly was
       admissible, if that’s what you mean.

                                                -4-
       Q       Okay. But the -- nothing about this you could have raised a defense to
       that, or could have kept that, that confession out. Nothing about this new
       information.

       A       Right.

         Moreover, the evidence presented at the Ginther hearing establishes nothing to support
the majority’s conclusion that the second Strickland prong was satisfied. More about that later,
though, because before addressing that evidence in detail I think it would behoove us to step
back for a moment and recall precisely what defendant’s argument is (and what it has been)
regarding the alleged ineffective assistance of his trial counsel. A close examination of the
record reveals that defendant has, at various times, offered up a shifting array of ways in which
his trial counsel was supposedly ineffective.

         The initial impetus for an ineffective assistance of counsel argument was a March 9, 2016
letter from defendant’s trial counsel to defendant’s then-appellate counsel7 endeavoring to
provide information helpful to an ineffective assistance of counsel argument on appeal. That
letter states in its entirety:




7
  Defendant’s appellate counsel at that time was Ronald D. Ambrose. As of at least the time that
defendant’s brief on appeal was filed (and continuing to the present), defendant has been
represented on appeal by Laurel Kelly Young.


                                               -5-
In other words, trial counsel suggested that he had been ineffective in failing to secure
defendant’s telephone records and evidence of trailer repairs before trial.

       Defendant then filed in the trial court a motion for a Ginther hearing or a new trial,
arguing in pertinent part:

       Defendant’s trial counsel, to his credit, admits he was ineffective in representing
       Defendant in a number of respects. (See Exhibit B.) In particular, trial counsel
       admits to being ineffective by failing to make any attempt prior to trial to secure
       Defendant’s telephone records; failed to secure written evidence that Defendant
       had the trailer repaired at Langenberg Machine Products; and failed to subpoena




                                               -6-
       and call witnesses, which included a Lansing Police Department officer who
       responded to a Meijer Gas Station and a friend who assisted. (Id.)8

The trial court denied the motion, and this appeal followed.

        Notwithstanding this history, defendant’s initial brief on appeal notably offered not one
word of argument about phone records, or about trial counsel’s supposed ineffectiveness in
failing to obtain phone records. Nor was there any reference (in the ineffective assistance of
counsel section of the brief) to trial counsel’s letter to Mr. Ambrose, although that letter was
appended to the brief and was referred to in a different section of the brief (relating to the
sufficiency of evidence). Instead, defendant argued his trial counsel’s ineffectiveness as follows:

               From an examination of the record, it is apparent that trial counsel was
       constitutionally ineffective in the following ways:

              Failure to call Alan Duck, the son-in-law who was present to see the
       excavator at Meijer and the excavator at Exit 5 on M-6.

               Failure to call Issac [sic] McTaggert who assisted Mr. Frison with the
       front end loader and attempting to get it on the low boy. Mr. McTaggert was also
       a witness to Mr. Frison loading up the Case excavator.9

             Failure to track down the police officer/report when Mr. Frison unloaded
       the Komatsu excavator in Lansing [sic]

               Failure to track down the police officer/report when Mr. Frison blocked
       four lanes of traffic with the Case excavator.

               Failure to track down the receipt from the welding company.




8
  The “Exhibit B” referred to in the motion was the letter from trial counsel to Mr. Ambrose,
although the argument regarding an alleged failure to call a police officer and a friend as
witnesses appears to be an expansion beyond what trial counsel had stated in his letter.
9
  Isaac McTaggert appears from the record to be the unidentified “friend” referred to in the
earlier motion filed in the trial court.


                                                -7-
              Failure to track down the credit card charge at the Marathon gas station at
       the Byron Center exit.10

                                              * * *

              All of the above investigation would have corroborated Mr. Frison’s
       version of events and clarified the timeline. The above evidence would have
       shown two things. One, corroborating where the lowboy was at all times, and,
       two, impeaching the complainants as to their confusion or possibly even fraud.

        This represented the entirety of defendant’s substantive appellate argument regarding
ineffective assistance of counsel and the entirety of defendant’s argument regarding specifically
how trial counsel’s alleged failures supposedly prejudiced defendant,11 even though, earlier in his
initial brief on appeal, defendant had provided as background a recitation of factual and
procedural events that included the following:

               On Friday August 26, 2016, appellate counsel moved for a new trial and
       Ginther hearing. Trial counsel had admitted at sentencing that due to a question
       from a juror, that he should have obtained phone records that illustrated the
       constant telephone communication between Mr. Frison and the Vanderveldens.
       Also, he had obtained a receipt from the welding company that corroborated the
       repair to the lowboy on August 28, 2014.

        All of this is to point out that defendant has not only presented a confusing mishmash of
facts—much of which is simply not pertinent to the issues before us—but has here and there
added to and subtracted from his list of specific alleged failures of his trial counsel in a manner
that makes it difficult to follow precisely what it is that trial counsel supposedly did wrong. Be
that as it may, however, this Court, in its previous opinion, granted defendant every benefit of
every doubt, reaching back even to arguments (e.g., regarding telephone records) that appear to
have been abandoned on appeal, and granting defendant the alternative relief that he sought: a
full-fledged Ginther hearing.

       That brings us to the evidence presented at the Ginther hearing. Notwithstanding the
wide-open nature of the hearing, the proofs offered by defendant were relatively limited. During
opening statements, defense counsel stated:



10
   The “Marathon gas station” referred to in defendant’s initial brief on appeal (as located “at the
Byron Center exit”) apparently differs from the “Meijer Gas Station” (which the record reflects
is located in Lansing) referred to in the earlier motion filed in the trial court.
11
  Defendant also filed a Standard 4 brief (a supplemental appellate brief filed in propria persona
pursuant to Michigan Supreme Court Order 2004-6, Standard 4), but it did not present an
ineffective assistance of counsel argument. Defendant did not file a reply brief on appeal. At
oral argument, counsel for defendant did not assert any other alleged failures of trial counsel.


                                                -8-
          So the evidentiary hearing here today is to find, discover whether or not the
          failure to get phone records and receipts deprived Mr. Frison of a substantial
          defense. And I think that we will show here today, I know that we’ll show here
          today that had those phone records been obtained, that Mr. Frison’s movements
          can be corroborated.


        Defendant then called defense trial counsel Steven Freeman as a witness. Consistent with
defense counsel’s opening statement and with the limited scope of the “admission” set forth in
Mr. Freeman’s letter, he was asked “whether or not [he had] obtained phone records,12 receipts to
try and corroborate [defendant’s] movements.” He confirmed that he had not, as of the time of
trial. He expanded his testimony (again consistent with his letter) to suggest that the receipts
could have been “coupled with the testimony of the [repair shop] owner [to] demonstrate that
indeed he, [sic] there was damage to the trailer, it was repaired and for that amount.” Mr.
Freeman also offered testimony that he believed the repair shop owner would testify that the
repairs were made to the trailer and that defendant was present at that time.13

         Defendant next called complainant Barbara Vandervelden as a witness. Although her
recollection or knowledge of the specifics of events that had occurred some four years earlier
was incomplete, she did testify that she recalled that the trailer in question was damaged and
needed repairs. She also recalled at least one phone call with defendant regarding a problem that
had occurred during the transit of certain equipment. Her memory was also refreshed (with her
trial testimony) regarding another phone call with defendant about loading up the Komatsu
excavator for transit the following morning.

         Defendant next called complainant Kees Vandervelden as a witness. Mr. Vandervelden
testified that he recalled phone calls with defendant “every day” during the relevant time period,
and he also recalled that the trailer was damaged and needed to be repaired.

         Defendant next called Alan Duck as a witness. Mr. Duck testified (contrary to
defendant’s argument on appeal) that he had no recollection of an incident at Meijer.14 He also
testified that he did help defendant when the trailer blew a tire in the Grand Rapids area.
However, he did not testify (and was not even asked) about any excavator (or which one, if any)
being transported at that time. Notably, Mr. Duck further testified that defendant asked him at
one point whether he thought Mr. Vandervelden would agree to let someone borrow the



12
  Although Mr. Freeman’s letter only suggested ineffectiveness in failing to obtain defendant’s
phone records, the testimony at the Ginther hearing went beyond that to include the
Vanderveldens’ phone records as well, and indeed those records were admitted into evidence.
13
     The repair shop owner was not called as a witness at the Ginther hearing.
14
   Mr. Duck’s purported knowledge of an incident at Meijer was part of the basis for defendant’s
contention on appeal (as quoted earlier in this opinion) that trial counsel was ineffective for
failing to call Mr. Duck as a witness at trial.


                                                 -9-
Komatsu excavator, and that defendant told him that he wanted to earn some extra money by
letting someone borrow it.

         Defendant then testified on his own behalf. He testified that the Komatsu excavator was
unloaded from the trailer and did not accompany the trailer when it was taken in for repair,
testified that he had left the excavator in a parking lot in Lansing, admitted that the lot was in the
same block as his cousin Joe Crenshaw’s construction business, testified that Crenshaw was
aware that the excavator was there and that he could have taken it down to his job site, denied
that the Vanderveldens had ever asked him where the excavator was, denied that he had told the
Vanderveldens that he had delivered the Komatsu excavator to Saugatuck,15 admitted that he told
police officers that he had delivered the Komatsu excavator to Saugatuck, testified that he told
the police that he had let Crenshaw use the excavator, testified that what he had told police about
letting Crenshaw use the excavator was a lie, and testified that he had lied because he had not
wanted Crenshaw to get into trouble. He also described Mr. Duck’s testimony at the Ginther
hearing as “utterly false.”

        Defendant did not call Isaac McTaggert as a witness. Defendant did not call any police
officers as witnesses, or offer into evidence any police reports. Defendant also did not call Joe
Crenshaw as a witness.

        In closing argument, defendant’s counsel argued that “the phone records and the receipts
do corroborate every piece of [defendant’s] testimony,” and that embezzlement had not occurred
because “[t]here was no intent by [defendant] to convert that Komatsu [excavator] to his own
use.”16

        The trial court ruled that defendant had failed to satisfy his burden with regard to the
second prong of a Strickland analysis, and entered the order quoted earlier in this opinion. The
matter thereupon returned to this Court, and this Court entered an order allowing the parties to
file supplemental briefs.

        Defendant argued in his supplemental brief that the phone records and repair receipt
records introduced into evidence at the Ginther hearing “showed that the Vanderveldens simply
lost track of their Komatsu Excavator in their failure to communicate with each other,” that the
phone records corroborate defendant’s “description of events,” that “[t]he receipts corroborate
his mechanical difficulties,” and that “[w]ith the additional evidence, a reasonable juror could




15
   By contrast, defendant’s counsel subsequently argued at the Ginther hearing that defendant
was angry after he was fired by the Vanderveldens, and that he therefore “spitefully” told them
that he had delivered the Komatsu excavator.
16
   The latter argument strikes me as addressing the sufficiency of the evidence, rather than any
ineffectiveness of trial counsel.


                                                -10-
have found [defendant’s] testimony to be credible and cast doubt on the VanderVelden’s [sic]
powers of recollection.”17

       So, where does that leave us? Of all of the ways in which defendant has variously
contended that his trial counsel was ineffective, defendant introduced evidence at the Ginther
hearing only in the form of phone records, repair receipt records, and the testimony of Alan
Duck.

       As it turns out, Mr. Duck’s testimony was decidedly not favorable to defendant,
inasmuch as he not only did not provide the testimony that defendant had represented he would
provide, but actually provided damaging testimony—consistent with the statement that defendant
had given to police—that defendant had inquired with him whether Mr. Vandervelden would
allow someone to borrow the Komatsu excavator, and that defendant told him that he wanted to
make some money by doing so. Assuming it possible for defendant’s credibility to be damaged
even more than by the damage he inflicted upon himself with his ever-changing stories, Mr.
Duck’s testimony certainly would have done so.18

        The repair receipt records merely demonstrate that a repair was made to a trailer on
August 28, 2014. They do not bear on what defendant did with the Komatsu excavator (which
had been unloaded from the trailer), or what he told the Vanderveldens about the location of the
excavator and whether defendant had delivered it to Saugatuck. The telephone records similarly
merely demonstrate that Vanderveldens and defendant were in telephonic communication during
the relevant time period. They do not speak to what was said during those communications, or
what defendant told the Vanderveldens about the excavator. Neither the fact of the repairs nor
the fact of the communications was a material or contested issue at trial. 19




17
   Defendant asks us to read great significance into the fact that one juror asked a question at
trial. Specifically, during defendant’s trial testimony, the juror (through the trial court) asked the
following question (rephrased slightly by the trial court), “You don’t have any confirmation of
any receipt from the welding shop, is that correct,?” Defendant responded that he did not have a
receipt, but that he was present when the owner of the shop spoke by phone with Mr.
Vandervelden, and that the shop owner would not have allowed him to leave with the repaired
equipment if the repair had not been paid for. I am underwhelmed by the suggestion that the
mere posing of this question demonstrates that the jury’s verdict was reasonably likely to have
been different if defense trial counsel had produced the repair receipt.
18
   The majority nonetheless describes the evidence introduced at the Ginther hearing—albeit
without evening mentioning Mr. Duck or his testimony—as “bolster[ing]” defendant’s
credibility. Hardly so, in my judgment.
19
   The parties’ trial testimony diverged regarding which piece of equipment was being moved (at
least according to their respective knowledge or understanding) at the time the trailer repair was
needed. But that difference casts neither light nor darkness on the question of what defendant
told the Vanderveldens about the location or delivery of the Komatsu excavator.


                                                -11-
        The majority—without any explanation--describes the telephone and repair receipt
records as “exculpatory.” But the majority does not explain how those records exculpate
defendant of anything. At most, they are consistent with defendant’s timeline of events—as well
as with the Vanderveldens’ recollection of events—relative to undisputed issues. As we stated in
our earlier opinion in this case:

       This case is essentially a “he said, she said” case, with defendant claiming that the
       complainants knew of the location of their property and that he did not allow
       anyone to use it, and with the complainants claiming to the contrary that
       defendant professed to having delivered the Komatsu excavator as instructed.
       [People v Frison, unpublished per curiam opinion of the Court of Appeals, issued
       December 5, 2017 (Docket No. 331457)]

        The telephone and repair receipt records do not aid in resolving that core dispute. The
majority is therefore left to posit that the evidence somehow “bolsters” defendant’s credibility
while “undermin[ing]” the Vanderveldens’ credibility. I beg to differ. The evidence does not
bolster defendant’s credibility in any meaningful way on any material issue. And it does not
undermine the Vanderveldens’ credibility in any meaningful way on any material issue. To the
extent that one or both of the Vanderveldens may have had incomplete or even inaccurate
recollection or knowledge, or even—as the majority contends—have displayed confusion and
miscommunication, we simply do not measure credibility by testing the state of perfection of
witnesses’ respective knowledge or recollection of extraneous details of events that occurred
years earlier, particularly when the witnesses may not have been present for the events or have
the knowledge base for knowing all of the details. Yet the majority effectively imposes that test
in order to override the jury’s verdict.

       At trial, defendant presented several versions of what had happened to the excavator and
implored the jury to believe his most recent version at trial. The jury clearly credited the
Vanderveldens’ and police officers’ testimony over defendant’s—even without the benefit of Mr.
Duck’s testimony. We should defer to that determination. People v Kanaan, 278 Mich App 594,
619; 751 NW2d 57 (2008).

       I agree with the trial court that defendant failed to satisfy his burden at the Ginther
hearing of showing that trial counsel’s alleged failures deprived defendant of a substantial
defense, and that a different result would not otherwise have been reasonably probable.20

       If we were sitting as jurors, we may or may not have reached the same result as did the
jury in this case. And if we were sitting as prosecutors, we or may not have exercised our



20
  I am also cognizant that our Supreme Court has recently reminded us that it is incumbent on a
defendant, at a Ginther hearing, to establish that proferred evidence will be “materially
favorable” at a retrial. People v McKeever, ___ Mich ___, ___; 918 NW2d 526 (2018) (Docket
No. 156161) (reversing the Court of Appeals’ determination that the defendant was entitled to a
new trial notwithstanding his failure to satisfy his burden at a Ginther hearing).


                                               -12-
prosecutorial discretion as did the prosecution in this case, i.e., to charge defendant with the
crime of embezzlement. But to reverse defendant’s conviction for such reasons is to lose sight of
our role as judges. In my judgment, the majority has done so. See People v Wolfe, 440 Mich
508, 514; 489 NW2d 748 (1992), mod 441 Mich 1201 (stating that “appellate courts are not
juries, and . . . they must not interfere with the jury’s role . . . . [An appellate court] must
remember that the jury is the sole judge of the facts. . . . Juries, not appellate courts, see and hear
witnesses and are in a much better position to decide the weight and credibility to be given to
their testimony.”) (quotation marks and citation omitted); see also People v Thomas, 118 Mich
App 667, 670; 325 NW2d 536 (1982), citing Genessee Prosecutor v Genesee Circuit Judge, 386
Mich 672; 194 NW2d 693 (1972) (stating that “prosecutors have a broad latitude in determining
what charge to bring in a criminal prosecution. Absent a clear abuse of discretion, judicial
interference with this exercise of prosecutorial judgment is impermissible.”). I therefore
respectfully dissent from the majority’s determination to reverse defendant’s conviction and to
remand for a new trial.



                                                               /s/ Mark T. Boonstra




                                                 -13-
