                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 10, 2015
              Plaintiff-Appellee,

v                                                                  No. 322874
                                                                   Wayne Circuit Court
MICHAEL ANTHONY GREENE,                                            LC No. 11-001958-FH

              Defendant-Appellant.


Before: RONALYNE KRAUSE, P.J., and MARKEY and M. J. KELLY, JJ.

PER CURIAM.

       Defendant, Michael Anthony Greene, appeals by right his conviction after a bench trial of
unauthorized access to a computer, MCL 752.795. The trial court sentenced defendant to 18
months’ non-reporting probation. We affirm.

       Defendant first argues that this Court lacked jurisdiction to address the prosecutor’s
challenge to the dismissal of the charge of unauthorized access of a computer, asserting the
untimely filing of an appeal encompassing the November 4, 2011 order granting defendant’s
motion to quash that charge. Challenges to an exercise of jurisdiction are reviewed de novo.
People v Gonzalez, 256 Mich App 212, 234; 663 NW2d 499 (2003), disapproved on other
grounds 469 Mich 967 (2003). Defendant’s claim is without merit for a number of reasons.

        The prosecutor appealed the trial court’s order dismissing all of the charges against
defendant. Defendant challenged this Court’s jurisdiction in the prior appeal, which was
rejected. Defendant did not properly appeal the prior decision of this Court. “Under the law of
the case doctrine ‘if an appellate court has passed on a legal question and remanded the case for
further proceedings, the legal questions thus determined by the appellate court will not be
differently determined on a subsequent appeal in the same case where the facts remain materially
the same.’ ” Grievance Administrator v Lopatin, 462 Mich 235, 259; 612 NW2d 120 (2000)
(citation omitted). Specifically, in People v Greene, unpublished opinion per curiam of the
Court of Appeals, issued April 4, 2013 (Docket No. 308097), p 1 n 1, this Court explained:

       The appeal of right was taken from the December 9, 2011, final order that
       dismissed the case. See MCR 7.202(6)(b)(i). This order encompassed three of
       the dismissed charges. The fourth charge (unauthorized access of a computer)
       had been dismissed by way of a motion to quash that was granted on November 4,
       2011. Contrary to defendant’s argument, we conclude that we have jurisdiction to
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       consider this fourth charge because the November 4, 2011, order did not dismiss
       the “case” in its entirety and because “[a] party claiming an appeal of right from a
       final order is free to raise issues on appeal related to prior orders.” Green v
       Ziegelman, 282 Mich App 292, 301 n 6; 767 NW2d 660 (2009) (internal citation
       and quotation marks omitted). Although Green is a civil case, we find it
       applicable by analogy here.

The law of the case doctrine precludes review.

        Next, defendant contends that there was insufficient evidence to sustain his conviction.
We review claims of insufficient evidence de novo. People v Hawkins, 245 Mich App 439, 457;
628 NW2d 105 (2001). In reviewing whether sufficient evidence supports a conviction, we must
view the evidence in a light most favorable to the prosecution and determine whether any
rational trier of fact could have found that the essential elements of the crime were proven
beyond a reasonable doubt. People v Hunter, 466 Mich 1, 6; 643 NW2d 218 (2002).

       Defendant was charged with violating MCL 752.795, involving the unauthorized access
of a computer. Specifically, MCL 752.795 provides in relevant part:

       A person shall not intentionally and without authorization or by exceeding valid
       authorization do any of the following:

       (a) Access or cause access to be made to a computer program, computer,
       computer system, or computer network to acquire, alter, damage, delete, or
       destroy property or otherwise use the service of a computer program, computer,
       computer system, or computer network.

The term “access” is defined in MCL 752.792(1) as “to instruct, communicate with, store data in,
retrieve or intercept data from, or otherwise use the resources of a computer program, computer,
computer system, or computer network.” MCL 752.792(3) defines a “computer” as “any
connected, directly interoperable or interactive device, equipment, or facility that uses a
computer program or other instructions to perform specific operations including logical,
arithmetic, or memory functions with or on computer data or a computer program and that can
store, retrieve, alter, or communicate the results of the operations to a person, computer program,
computer, computer system, or computer network.”                 A “computer network” is “the
interconnection of hardwire or wireless communication lines with a computer through remote
terminals, or a complex consisting of 2 or more interconnected computers.” MCL 752.792(4).
In turn, a “computer program” is defined as “a series of internal or external instructions
communicated in a form acceptable to a computer that directs the functioning of a computer,
computer system, or computer network in a manner designed to provide or produce products or
results from the computer, computer system, or computer network.” MCL 752.792(5). A
“computer system” is “a set of related, connected or unconnected, computer equipment, devices,
software, or hardware.” MCL 752.792(6). “ ‘Property’ includes, but is not limited to,
intellectual property, computer data, instructions or programs in either machine or human
readable form, financial instruments or information, medical information, restricted personal
information, or any other tangible or intangible item of value.” MCL 752.793(1). “ ‘Services’
includes, but is not limited to, computer time, data processing, storage functions, computer

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memory, or the unauthorized use of a computer program, computer, computer system, or
computer network, or communication facilities connected or related to a computer, computer
system, or computer network.” MCL 752.793(2).

      Our Supreme Court summarized rules of statutory interpretation in People v Phillips, 469
Mich 390, 395; 666 NW2d 657 (2003) (citations, footnotes and quotation marks omitted):

       When construing a statute, our primary goal is to ascertain and give effect to the
       intent of the Legislature. To do so, we begin by examining the language of the
       statute. If the statute’s language is clear and unambiguous, we assume that the
       Legislature intended its plain meaning and the statute is enforced as written.
       Stated differently, a court may read nothing into an unambiguous statute that is
       not within the manifest intent of the Legislature as derived from the words of the
       statute itself. Only where the statutory language is ambiguous may a court
       properly go beyond the words of the statute to ascertain legislative intent.

        Because the language of MCL 752.795 delineates the elements of the crime, it is
unnecessary and improper to “go beyond the words of the statute to ascertain legislative intent.”
Phillips, 469 Mich at 395. In accordance with the plain language of the statute, the elements that
must be established for purposes of this case include the (a) intentional and (b) unauthorized (c)
access to a computer program, computer system, or computer network (c) to acquire, alter,
damage, delete or destroy property or otherwise use the service of a computer program,
computer, computer system, or computer network.

        Sufficient evidence was adduced at trial to support each of the elements for defendant’s
conviction for violation of MCL 752.795. There is evidence that defendant acted intentionally in
accessing the documents from the email account of Milton Spokojny a contract attorney.
Although defendant contends the file merely appeared on his computer, forensic examiner Erin
Diamond’s analysis of the computer’s hard drive led him to opine that an individual would have
to search through the email account and actively select a document to retrieve and print it.
Spokojny specifically testified that he did not grant authorization to defendant or anyone else to
access or use his email account. Access to the account obviously occurred based on the
testimony of defendant, Ronald Wade, Kevin Smith and Diamond and the existence of the
documents printed from that account that were provided to Smith. In particular, Diamond’s
testimony regarding the activity that occurred in searching within the email account comports
with the definition of “access” as defined in MCL 752.792(1). It was undisputed that defendant
printed a copy of documents from the email account satisfying the acquisition component of
MCL 752.795(a)(1). In addition, there was evidence from Wade and Smith that defendant
provided the documents to a third party to distribute and that the documents retrieved contained
confidential information in the form of lawyer-client communications, which were restricted and
possessed an intangible value in the pending lawsuit as required by MCL 752.793(1). As such,
sufficient proof was adduced at trial to sustain defendant’s conviction for violation of MCL
752.795.

       Defendant further contends that the trial judge misrepresented the record when reciting
the reasons for his ruling. Specifically, defendant contends the trial court misstated the
testimony of Judge Sylvia James in asserting that James indicated that defendant admitted giving

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the printed documents to Wade. He further contends the trial court misstated Smith’s testimony
suggesting that Wade informed him that defendant provided the documents during their first
conversation rather than when Smith later questioned Wade about the source of the paperwork.
Although defendant is correct in asserting that James did not testify that defendant admitted
providing a copy of the documents to Wade and that Smith indicated Wade’s identification of
defendant as the source of the documents came in a second conversation, these discrepancies are
immaterial and inconsequential to the verdict.

        As noted, there was sufficient evidence to prove beyond a reasonable doubt all elements
of the crime charged. James was simply recounting her conversation with defendant, in which
he acknowledged seeing the document and printing it. Defendant acknowledged showing Wade
the document while it was displayed on the computer screen and printing it, but he denied
providing Wade with a printed copy or instructing him to deliver it to Smith. Again, the
testimony of Diamond and Spokojny sufficed to demonstrate defendant’s actions were
intentional and lacked authorization. Diamond’s testimony also demonstrated that the email
account was “accessed” because a review of the hard drive indicated that various documents in
the email account were viewed and that documents had to be selected for printing. Finally,
defendant acknowledged printing a copy of the document although he asserts he shredded and
did not distribute it. But Wade and Smith both testified that defendant was the source for their
obtaining the document. This is an issue of credibility, which is solely within the province of the
factfinder. People v Eisen, 296 Mich App 326, 331; 820 NW2d 229 (2012). In addition, we
must resolve all conflicts in the evidence in favor of the prosecution. People v Kosik, 303 Mich
App 146, 151; 841 NW2d 906 (2013).

       Defendant also argues that the trial court’s verdict is contrary to the great weight of the
evidence. He asserts that the trial court’s misstatement of the testimony of James and the
testimony of Philip Loos as an alibi witness serve to demonstrate the physical impossibility of
defendant’s having engaged in the activities alleged at the times indicated.

       “A verdict is against the great weight of the evidence if the evidence preponderates so
heavily against the verdict that it would be a miscarriage of justice to allow it to stand.” People v
Reid (On Remand), 292 Mich App 508, 513; 810 NW2d 391 (2011). “Conflicting testimony and
questions of witness credibility are generally insufficient grounds for granting a new trial.”
People v Unger, 278 Mich App 210, 232; 749 NW2d 272 (2008).

        Contrary to defendant’s contention, the Loos’ testimony did not render the trial court’s
findings unsupportable. Although Loos testified he saw defendant at another location during the
times indicated on the hard drive for retrieval of the documents and the exploration of
Spokojny’s email account, Diamond explained any such discrepancy could have resulted from
using the computer’s internal clock rather than using time from an Internet-based source.
Defendant’s own testimony acknowledging that he reviewed the document on his computer
screen supported this theory.

       Similarly, the misstatement of James’ testimony regarding defendant’s providing a copy
of the document to another individual is irrelevant in establishing the elements of the crime
charged. Defendant acknowledged viewing the document on his computer screen and printing a
copy. The only distinction is that defendant denied providing a copy to a third person, asserting

                                                -4-
that he instead shredded the document. Wade and Smith both testified that defendant provided
the document to Wade to deliver to Smith.

        Defendant’s argument that the trial court’s verdict was contrary to the great weight of the
evidence is primarily reliant on the trial court’s evaluation of the credibility of the witnesses.
Although some inconsistencies may exist between the testimony and the trial court’s discussion
of the testimony in its ruling, the contradictions are immaterial to establishing the elements of the
crime. This case ultimately is reduced to a question of witness credibility, and the trial judge
found James, Wade and Smith to be more credible than defendant. Issues of witness credibility
are solely for determination by the trier of fact, absent the existence of exceptional
circumstances. People v Lemmon, 456 Mich 625, 642-643; 576 NW2d 129 (1998). The
Lemmon Court explained that exceptional circumstances exist where the testimony “contradicts
indisputable physical facts or law,” “is patently incredible or defies physical realities,” “is
material and is so inherently implausible that it could not be believed by a reasonable juror,” or
“has been seriously ‘impeached’ and the case marked by ‘uncertainties and discrepancies.’ ” Id.
at 643-644. Exceptional circumstances do not exist simply because the trial judge rejects “all or
part of the testimony of a witness or witnesses.” Id. at 644 (citation omitted).

        Because defendant’s contention that the trial court’s verdict is contrary to the great
weight of the evidence is premised primarily on the trial court’s credibility determinations, the
verdict was not against the great of the evidence. Unger, 278 Mich App at 232.

        Defendant next asserts that MCL 752.795 is unconstitutionally vague, both as written and
as applied. He contends the language of the statute is overly broad and fails to provide fair
notice of the conduct proscribed.

        To preserve an issue regarding the constitutionality of a statute, it must be raised in the
trial court. People v Russell, 266 Mich App 307, 314; 703 NW2d 107 (2005). Defendant did not
challenge the constitutionality of the statute in the trial court. Although his codefendant, Wade,
did raise a constitutionality issue in the trial court, it pertained to MCL 752.505 and not the
statute challenged in this issue, MCL 752.795. The issue is not preserved.

       Questions involving the constitutionality of a statute are reviewed de novo. Russell, 266
Mich App at 310. Unpreserved constitutional issues are reviewed for plain error affecting a
defendant’s substantial rights. Id. at 314.

        “Statutes are presumed to be constitutional and must be so construed unless their
unconstitutionality is readily apparent.” People v Rogers, 249 Mich App 77, 94; 641 NW2d 595
(2001). A statute is unconstitutionally vague when it “is overbroad, impinging on First
Amendment freedoms, or it does not provide fair notice of the conduct proscribed, or it is so
indefinite that it confers unstructured and unlimited discretion on the trier of fact to determine
whether an offense has been committed.” People v Hayes, 421 Mich 271, 283; 364 NW2d 635
(1984) (citation and quotation marks omitted). The party challenging the statute has the burden
to demonstrate that the statute is unconstitutional. People v Sands, 261 Mich App 158, 160; 680
NW2d 500 (2004). Because First Amendment freedoms are not involved, this Court will not
address whether the cited statutory provision is “overbroad.” See Russell, 266 Mich App at 310.


                                                -5-
A vagueness challenge that does not implicate First Amendment freedoms is examined in light of
the facts of the particular case. People v Lino, 447 Mich 567, 575; 527 NW2d 434 (1994).

        Further, statutes are not to be construed in a vacuum: the entire text of the statute is
reviewed “to determine whether the requisite certainty exists.” Hayes, 421 Mich at 284. A
statute gives fair notice of the conduct it proscribes if a person of ordinary intelligence has a
reasonable opportunity to know what is prohibited, so as to act accordingly. Id. Although a
statute cannot use terms that require persons of ordinary intelligence to speculate as to its
meaning, it “is sufficiently definite if its meaning can fairly be ascertained by reference to
judicial interpretations, the common law, dictionaries, treatises, or the commonly accepted
meanings of words.” People v Lueth, 253 Mich App 670, 676; 660 NW2d 322 (2002).

       The challenged statute, MCL 752.795 provides, in relevant part:

       A person shall not intentionally and without authorization or by exceeding valid
       authorization do any of the following:

       (a) Access or cause access to be made to a computer program, computer,
       computer system, or computer network to acquire, alter, damage, delete, or
       destroy property or otherwise use the service of a computer program, computer,
       computer system, or computer network.

In addition, MCL 752.792 and MCL 752.793 provide definitions for the relevant statutory terms
“access,” “computer,” “computer network,” “computer program,” and “computer system.”
Given the extensive provision of definitions within the statutory scheme, defendant’s contention
that MCL 752.795 is vague on its face and fails to provide fair notice of the prohibited conduct is
without merit. While the terms “intentionally, “without authorization,” and “exceeding valid
authorization” are not statutorily defined, the terms are neither unusual nor esoteric, nor does the
statute use these terms in an uncommon or extraordinary context. See Russell, 266 Mich App at
311. Defendant’s contention that the statute is unconstitutionally vague is without merit.

        Similarly, defendant’s contention that MCL 752.795 allows the trier of fact “unstructured
and unlimited discretion to determine whether an offense has been committed” is also without
merit. See Russell, 266 Mich App at 311. The statute is explicit in requiring a factfinder to find
that a defendant has intentionally and without authorization obtained “access” to a “computer
program, computer, computer system, or computer network to acquire, alter, damage, delete, or
destroy property or otherwise use the service of a computer program. . . .” Once again, the vast
majority of the terminology used in the statute is defined. As such, the statutory provision “is
not vague on its face because it clearly and plainly sets forth the elements that the prosecutor
must prove beyond a reasonable doubt and it does not leave the jury with unstructured and
unlimited discretion in finding guilt.” Id. at 312.

       Finally, MCL 752.795 is not vague as applied in this case. “The proper inquiry is not
whether the statute may be susceptible to impermissible interpretations, but whether the statute is
vague as applied to the conduct allegedly proscribed in this case.” People v Vronko, 228 Mich
App 649, 652; 579 NW2d 138 (1998). Although defendant contends his access to the documents
was inadvertent and unintentional, the Diamond’s testimony indicates defendant conducted a

                                                -6-
more purposeful search through Spokojny’s email account culminating with his selecting,
viewing and printing documents pertaining to a lawsuit that did not involve defendant.
Testimony further indicated that defendant provided the documents to Wade to deliver to Smith.
The evidence, therefore, is consistent with behaviors precluded by MCL 752.795, and the statute
is not vague as applied to the circumstances of this case. Defendant’s attempt to focus on
specific combinations of terms in the statute to suggest that it is not applicable in his case is
unavailing. “When interpreting statutory language, the language in question must be read as a
whole, and individual words and phrases should be read in the context of the entire legislative
scheme.” People v Glass, 288 Mich App 399, 404; 794 NW2d 49 (2010) (citation and quotation
marks omitted).

        Finally, defendant’s reliance on distinguishable federal caselaw is misplaced. In citing
United States v Nosal, 676 F3d 854 (CA 9, 2012), defendant argues that the language of MCL
752.795, like that of the similar federal statute discussed in that case, is subject to an overbroad
application and interpretation by prosecutors. First, we note that “[l]ower federal court decisions
are not binding on this Court, but may be considered on the basis of their persuasive analysis.”
People v Fomby, 300 Mich App 46, 50 n 1; 831 NW2d 887 (2013). We do not find Nosal
helpful because the Ninth Circuit Court construed the federal statute on the intent of Congress,
giving an ambiguous statute a narrow interpretation. Nosal, 676 F3d at 858, 862-863. Unlike in
Nosal, the prosecutor in the present case is not seeking to transform MCL 752.795 “from an anti-
hacking statute into an expansive misappropriation statute.” Id. at 857. In this instance, while
there is an assertion that defendant did misappropriate the information obtained by providing
documents to Smith via Wade, defendant’s conviction is premised not on these actions. It is
based on the unauthorized access into and exploration of Spokojny’s email account. Violation of
MCL 752.795 is based not only on simply violating a computer use policy restriction but rather
encompasses accessing “intentionally and without authorization or by exceeding valid
authorization . . . a computer program, computer, computer system, or computer network to
acquire, alter, damage, delete, or destroy property or otherwise use the service of a computer
program, computer, computer system, or computer network.” Compare Nosal, 676 F3d at 857.

        Defendant also asserts the trial court erred in improperly admitting other acts evidence
under MRE 404(b). A trial court’s decision to admit or exclude evidence is reviewed for an
abuse of discretion. People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). “An abuse of
discretion occurs when the court chooses an outcome that falls outside the range of reasonable
and principled outcomes.” Unger, 278 Mich App at 216. “A decision on a close evidentiary
question ordinarily cannot be an abuse of discretion.” People v Aldrich, 246 Mich App 101, 113;
631 NW2d 67 (2001). Preliminary questions of law involving the admissibility of evidence are
reviewed de novo. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).

        In general, all relevant evidence is admissible unless otherwise provided for in the court
rules or the state or federal constitutions. MRE 402; People v Yost, 278 Mich App 341, 355; 749
NW2d 753 (2008). Evidence is deemed to be relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” MRE 401. Even if evidence is relevant,
however, it “may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice.” MRE 403.


                                                -7-
        “Evidence of a person’s character or a trait of character is not admissible for the purposes
of proving action in conformity therewith.” MRE 404(a). MRE 404(b)(1), however, permits the
admission of other acts evidence when certain requirements are met. First, the evidence must be
offered to prove something other than a character or propensity. People v Knox, 469 Mich 502,
509; 674 NW2d 366 (2004). Second, the evidence must be relevant as defined in MRE 402. Id.
“Third, the probative value of the evidence must not be substantially outweighed by unfair
prejudice under MRE 403.” Knox, 469 Mich at 509. And, if requested, a court may provide an
instruction limiting the use of the other acts evidence to its proper purpose. Id.; MRE 105.

       We agree with defendant that the evidence admitted pursuant to MRE 404(b) did not
comport with the permissible uses of such evidence. As the trial court noted, the incident
involving the small claims file was dissimilar to the behaviors involved in the acts charged. In
addition, Terriol Johnson’s testimony was not definitive regarding any wrongdoing by defendant
in the mishandling of the small claims file; she merely recalled showing him the file and later
being unable to locate the file. She did not assert any knowledge that he mishandled the file or
caused it to go missing. As such, the challenged evidence did not show “a scheme, plan or
system” or a high degree of similarity to the charged conduct.

        Any error in determining admissibility, however, was eradicated by the trial court’s clear
indication that it found the evidence to be without any probative value and by limiting the
testimony regarding the prior incident due to its lack of perceived value in evaluating defendant’s
guilt of the pending charges. Notably, Johnson’s testimony and the prior incident were not cited
or referenced by the trial court in its ruling and, therefore, cannot be construed as unduly
prejudicial. Because the trial court served as the finder of fact and for the reasons noted, we find
the improper admission of the MRE 404(b) evidence was harmless. “When a judge sits as the
trier of fact, his verdict is presumed to be the result of a correct application of the law to the
evidence presented.” People v Beard, 171 Mich App 538, 543-544; 431 NW2d 232 (1988).

        Finally, defendant argues on appeal that it was improper to allow Spokojny to address the
court as a victim at sentencing. He further contends the trial court improperly increased his
sentence of probation premised on Spokojny’s statements and suggested the increased imposition
of restitution based on costs Spokojny incurred. The prosecutor has indicated that defendant’s
probation has terminated, rendering the argument moot.

       “For an issue to be preserved for appellate review, it must be raised, addressed, and
decided by the lower court.” People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741
NW2d 61 (2007). Although defendant objected at sentencing to Spokojny’s being shown the
presentence investigation report, he did not object to the sentence the trial court imposed or did
he raise the issues asserted in this appeal, which are, therefore, unpreserved. “Unpreserved
sentencing errors are reviewed for plain error affecting substantial rights.” People v Meshell,
265 Mich App 616, 638; 696 NW2d 754 (2005).

       This Court has routinely declined to address sentencing issues based on a defendant’s
having completed or served his minimum sentence. “Where a subsequent event renders it
impossible for this Court to fashion a remedy, an issue becomes moot.” People v Rutherford,
208 Mich App 198, 204; 526 NW2d 620 (1994). Defendant’s contention regarding the trial
court’s indication it would consider awarding additional restitution premised on Spokojny’s

                                                -8-
statements at sentencing is also not properly before this Court. “Only an actual dispute, properly
raised at the sentencing hearing in respect to the type or amount of restitution, triggers the need
to resolve the dispute by a preponderance of the evidence.” People v Grant, 455 Mich 221, 243;
565 NW2d 389 (1997). In this instance, the trial court did not award defendant the restitution as
challenged on appeal. This aspect of the issue is, therefore, rendered moot.

       We affirm.

                                                            /s/ Amy Ronayne Krause
                                                            /s/ Jane E. Markey
                                                            /s/ Michael J. Kelly




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