                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 April 26, 2016
              Plaintiff-Appellee,

v                                                                No. 325220
                                                                 Wayne Circuit Court
MICHAEL ANTHONY CALABRESE,                                       LC No. 13-011114-FH

              Defendant-Appellant.


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

PER CURIAM.

       Defendant appeals by delayed leave granted1 his jury trial convictions of three
misdemeanor counts of unauthorized access or use of nonpublic information via the Law
Enforcement Information Network (“LEIN”), MCL 28.214(6)(a). He was sentenced to one year
of non-reporting (telephonic) probation. We affirm.

                               I. FACTUAL BACKGROUND

       This case arises from defendant’s May 2011 through November 2012 use of the LEIN to
run searches on multiple women while on duty as a police officer for the Taylor Police
Department. The prosecution alleged that those LEIN searches did not comport with police
department policies and violated MCL 28.214(3) because they were conducted for defendant’s
own “personal use or gain.”

       Although defendant was charged with seven counts of unauthorized access or use of
nonpublic information via the LEIN as well as other felony offenses,2 he was convicted of only
three misdemeanor counts of unauthorized access or use of nonpublic information arising from


1
 People v Calabrese, unpublished order of the Court of Appeals, entered July 7, 2015 (Docket
No. 325220).
2
  Defendant was acquitted of two counts of false certification (impermissible use of personal
information), MCL 257.903, two counts of using a computer to commit a crime, MCL 752.796,
one count of common-law misconduct in office, MCL 750.505, and four additional counts of
unauthorized access or use of nonpublic information via the LEIN, MCL 28.214(6)(a).


                                             -1-
LEIN searches pertaining to LM, CG, and GL, three women with whom he had developed a
friendship or romantic relationship.

                            II. SUFFICIENCY OF THE EVIDENCE

      Defendant argues that the prosecution presented insufficient evidence to support his
misdemeanor convictions. We disagree.

                   A. STANDARD OF REVIEW AND APPLICABLE LAW

        This Court reviews a challenge to the sufficiency of the evidence de novo. People v
Henderson, 306 Mich App 1, 8-9; 854 NW2d 234 (2014). “We examine the evidence in a light
most favorable to the prosecution, resolving all evidentiary conflicts in its favor, and determine
whether a rational trier of fact could have found that the essential elements of the crime were
proved beyond reasonable doubt.” People v Dunigan, 299 Mich App 579, 582; 831 NW2d 243
(2013) (quotation marks and citation omitted). “Circumstantial evidence and reasonable
inferences arising [from the evidence] may constitute proof of the elements of [a]
crime.” People v Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010). This Court’s review
is deferential, as “[w]hen assessing a challenge to the sufficiency of evidence, the trier of fact,
not the appellate court, determines what inferences may be fairly drawn from the evidence and
the weight to be accorded those inferences.” People v Malone, 287 Mich App 648, 654; 792
NW2d 7 (2010), overruled in part on other grounds by People v Jackson, 498 Mich 246, 268 n 9
(2015). Accordingly, in reviewing a challenge to the sufficiency of the evidence, we do not
interfere with the fact-finder’s determinations regarding the weight and credibility of the
witnesses or the evidence. Dunigan, 299 Mich App at 582.

                                         B. ANALYSIS

       The criminal justice information policy council, see MCL 28.211a(a), MCL 28.212, was
charged with creating rules and policies governing information in the criminal justice
information systems, including the LEIN system. MCL 28.214(1)(a). MCL 28.214 provides, in
relevant part:

              (3) A person shall not access, use, or disclose nonpublic information
       governed under this act for personal use or gain.

                                             * * *

             (5) A person shall not disclose information governed under this act in a
       manner that is not authorized by law or rule.

              (6) A person who intentionally violates subsection (3) or (5) is guilty of a
       crime as follows:

              (a) For a first offense, the person is guilty of a misdemeanor punishable by
       imprisonment for not more than 93 days or a fine of not more than $500.00, or
       both.


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              (b) For a second or subsequent offense, the person is guilty of a felony
       punishable by imprisonment for not more than 4 years or a fine of not more than
       $2,000.00, or both.

        MCL 28.211a(b) defines “nonpublic information” as “information to which access, use,
or dissemination is restricted by a law or rule of this state or the United States.” We conclude
that the trial court accurately articulated the elements of defendant’s misdemeanor charges as
follows:

               The defendant is charged with the crime of unauthorized access and/or use
       of LEIN information. To prove this charge, the prosecutor must prove beyond a
       reasonable doubt that the defendant intentionally accessed and/or used non public
       [sic] information governed under LEIN, [and] that the defendant did so for
       personal use[] or personal gain.

        The evidence at trial demonstrated that a biennial certification test was required to access
the LEIN on a mobile data terminal (“MDT”) in a police vehicle or on a computer at the police
station. A police officer who passed the certification test received a unique login. Every
keystroke made by an officer logged into the LEIN system was recorded. The evidence
indicated that defendant’s login was used when information regarding LM, CG, and GL was
accessed.

        LM testified that she met defendant through her job at a flower shop, and they dated for
approximately two months. She never asked defendant to look up her driving or criminal
records. However, defendant admitted to her that he “ran her name” and, during the search,
learned of an accident in which she was involved. CG testified that she became acquainted with
defendant because he frequented a bar where she worked. On one occasion, after CG and
defendant had exchanged messages on Facebook, defendant gave her a ride home from a bar
when she was intoxicated. Subsequently, she asked defendant to search her driving record,
testifying at trial that she asked him to do so for her own personal use and gain. GL testified that
she dated defendant “on and off” between 2009 and 2011. There is no indication that she ever
asked defendant to search her driving record, and she was never stopped by defendant in a law
enforcement capacity.

         Defendant argues that there was insufficient evidence presented at trial to support his
convictions because there was no direct evidence that he intentionally conducted the LEIN
searches. We disagree. Despite the absence of direct eyewitness testimony that defendant
searched the women’s names on the LEIN, there is ample circumstantial evidence that he was the
individual who performed the searches, as the queries at issue were performed using defendant’s
unique login. Although there was testimony that a LEIN search could be performed using
another officer’s login information, such a search was against police department policy and
occurred only under exceptional circumstances, such as during a situation when officer safety
was at risk. In these instances, there is no evidence that suggests that the LEIN searches giving
rise to defendant’s convictions were necessary for officer safety.

        Additionally, each of the offenses involved women who shared a friendship or dating
relationship with defendant. LM met defendant through her employment; they dated for two

                                                -3-
months; and defendant admitted to her that he searched her name because he wanted to learn
about whom he was dating. CG also met defendant through her work at a local bar. Although
she testified that she asked defendant to search her name for her own benefit, it was within the
province of the jury to determine whether defendant chose to access the information for his own
personal gain—for example, to foster his personal relationship with CG, which, from the trial
testimony, appeared strongly tied to his position as a police officer. See People v Orlewicz, 293
Mich App 96, 111; 809 NW2d 194 (2011). Lastly, defendant dated GL “on and off” between
2009 and 2011, and the evidence showed that her name was repeatedly searched on the LEIN.
There is no indication that she asked defendant to search for her information or that she obtained
a personal benefit from the searches. Another Taylor police officer also testified that defendant
admitted that he searched GL’s name on the LEIN system while they were discussing
defendant’s criminal case, although he stated at the time, “I’m not even sure why I did it.”

        On this record, even though the prosecution did not present a witness who observed
defendant performing the searches or who had personal knowledge of defendant’s specific intent
when the searches were performed, there was sufficient circumstantial evidence for the jury to
reasonably infer that defendant intentionally ran the searches for his own personal benefit, as the
searches were made using his login information and involved women with whom he had a
personal connection. See Bennett, 290 Mich App at 472. Thus, the prosecution presented
sufficient evidence for a rational jury to conclude that the elements of defendant’s convictions
had been proven beyond a reasonable doubt. See Dunigan, 299 Mich App at 582.

        Defendant also argues that he did not, as a matter of law, violate MCL 28.214(5) because
disclosure of requested information is permissible pursuant to MCL 257.208c(3)(m). “When
interpreting statutes, this Court must ascertain and give effect to the intent of the Legislature.
The words used in the statute are the most reliable indicator of the Legislature’s intent and
should be interpreted on the basis of their ordinary meaning and the context within which they
are used in the statute.” People v Zajaczkowski, 493 Mich 6, 13; 825 NW2d 554 (2012)
(quotation marks and citations omitted). This argument lacks merit because the prosecution did
not proceed under a theory that defendant improperly disclosed information. Rather, as indicated
in the felony information, and as confirmed by the prosecution’s arguments at trial, it proceeded
under a theory that defendant intentionally accessed or used nonpublic information contrary to
the act. See MCL 28.214(3). In light of the evidence presented at trial, it was sufficient for a
reasonable jury to find beyond a reasonable doubt that defendant accessed or used the LEIN for
his own personal use or gain.

        Further, the plain language of MCL 257.208c(3)(m) allows the secretary of state,
following satisfactory proof of identity, to disclose personal information regarding an individual
to the individual herself or to her designee. It does not provide authority for a law enforcement
officer to circumvent the statutory requirements by searching an individual’s name on the LEIN,
albeit with the individual’s consent, and directly providing information acquired through the
search to the requesting individual. Accordingly, this statute has no effect on the sufficiency of
the evidence underlying defendant’s convictions.

       Thus, we reject defendant’s claims.

                            III. INCONSISTENT JURY VERDICTS

                                                -4-
       Next, defendant argues that the jury’s verdict was ambiguous, inconsistent, and void as a
matter of law. We disagree.

                   A. STANDARD OF REVIEW AND APPLICABLE LAW

       We review de novo questions concerning inconsistent jury verdicts. People v Russell,
297 Mich App 707, 722; 825 NW2d 623 (2012). However, because defendant failed to raise this
issue below, our review is limited to whether there was plain error that affected defendant’s
substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).

       Within a single jury trial, inconsistent verdicts are permissible and do not require
reversal. People v Wilson, 496 Mich 91, 100-101; 852 NW2d 134 (2014). Rather, each count in
an indictment is deemed a separate indictment. People v Vaughn, 409 Mich 463, 465; 295
NW2d 354 (1980). As the Michigan Supreme Court explained in Vaughn:

               Juries are not held to any rules of logic nor are they required to explain
       their decisions. The ability to convict or acquit another individual of a crime is a
       grave responsibility and an awesome power. An element of this power is the
       jury’s capacity for leniency. Since we are unable to know just how the jury
       reached their conclusion, whether the result of compassion or compromise, it is
       unrealistic to believe that a jury would intend that an acquittal on one count and
       conviction on another would serve as the reason for defendant’s release. These
       considerations change when a case is tried by a judge sitting without a jury. But
       we feel that the mercy-dispensing power of the jury may serve to release a
       defendant from some of the consequences of his act without absolving him of all
       responsibility. [Id. at 466 (footnotes omitted).]

“[A] jury may reach inconsistent verdicts as a result of mistake, compromise, or leniency.”
People v Goss, 446 Mich 587, 597-598; 521 NW2d 312 (1994).

        Although inconsistent verdicts may warrant appellate relief when the inconsistency is the
result of juror confusion, a failure to understand instructions, or juror mistake, a defendant may
not merely rely on the alleged inconsistency itself to support such a claim, and a proper verdict
form and understandable instructions will not support a claim of error. People v McKinley, 168
Mich App 496, 510-511; 425 NW2d 460 (1988); see also People v Lewis, 415 Mich 443, 450 n
9; 330 NW2d 16 (1982). The defendant bears the burden of providing evidence of juror
confusion, misunderstood instructions, or impermissible compromise. People v Putman, 309
Mich App 240, 251; 870 NW2d 593 (2015); McKinley, 168 Mich App at 510-511.

                                         B. ANALYSIS

        Defendant first argues that “the nature of the misdemeanors” on the jury verdict form
“reveal that they were all identical, signifying that the jurors were confused as to the charges.
Because the verdict cannot be clearly deduced from the record as it currently stands, it is void for
ambiguity.” This claim is completely unsupported by the record. The verdict form clearly lists
each charge, and each charge is distinguished by the name of the complainant involved in the
conduct giving rise to that charge. There is absolutely no support for a finding that the jury’s
verdict cannot be adduced from the verdict form. Moreover, the jury’s verdict is equally clear
                                                -5-
from the statements of the jury foreperson after the jury completed its deliberations.
Accordingly, we find no basis for concluding, based on the jury verdict form, that the jurors were
confused about the charges, especially given the instructions provided by the trial court before
the jury began its deliberations. See People v Ullah, 216 Mich App 669, 682-684; 550 NW2d
568 (1996).

        Defendant also argues that he is entitled to a new trial because the alleged inconsistencies
in the jury’s verdict demonstrate that it resulted from juror confusion or impermissible
compromise. See Putman, 309 Mich App at 251; McKinley, 168 Mich App at 510-511. He
contends that such confusion or compromise is revealed by the fact that the jury acquitted him of
some, but not all, of the misdemeanor charges, even though the conduct giving rise to each of the
charges is “identical.” Defendant’s claim is wholly unsupported by the record, as the record
clearly shows that the factual circumstances of the LEIN searches giving rise to his seven
charges under MCL 28.214(6)(a), each of which involved a separate woman, differed widely.
Thus, even though he was charged with seven counts of the same offense of unauthorized access
or use of the LEIN, the jury’s verdict is easily explained by factual differences in the record.
Accordingly, we find no basis for concluding that the verdict resulted from juror confusion or
impermissible compromise. See Putman, 309 Mich App at 251; McKinley, 168 Mich App at
510-511.

       Thus, we reject defendant’s claims.

                                   IV. MOTION TO QUASH

       Defendant next argues that the trial court abused its discretion when it failed to grant his
motion to quash all of the felonies, and that he was prejudiced at trial by this failure. He
contends that he would have been acquitted of all of the charges if the felonies had not been
submitted to the jury, as demonstrated by the insufficient evidence supporting his misdemeanor
convictions. We reject defendant’s claims.

                                 A. STANDARD OF REVIEW

        “A district court magistrate’s decision to bind over a defendant and a trial court’s
decision on a motion to quash an information are reviewed for an abuse of discretion.” People v
Dowdy, 489 Mich 373, 379; 802 NW2d 239 (2011). However, “a lower court’s rulings based on
questions of law are reviewed de novo.” People v Monaco, 474 Mich 48, 54; 710 NW2d 46
(2006).

                                         B. ANALYSIS

        Because defendant was acquitted of all felony charges, he cannot challenge the evidence
adduced at the preliminary examination absent a showing of prejudice. People v Hall, 435 Mich
599, 602-603; 460 NW2d 520 (1990); see also People v Yost, 468 Mich 122, 124 n 2; 659 NW2d
604 (2003). Accordingly, when this Court finds that sufficient evidence was presented at trial to
uphold a defendant’s convictions, it may not address any claim that a defendant’s bindover was
erroneous. People v Bosca, 310 Mich App 1, 45-46; 871 NW2d 307 (2015), appeal held in
abeyance 872 NW2d 492 (2015), citing People v Wilson, 469 Mich 1018; 677 NW2d 29 (2004)
(“If a defendant is fairly convicted at trial, no appeal lies regarding whether the evidence at the
                                                -6-
preliminary examination was sufficient to warrant a bindover.”). Here, because there was
sufficient evidence presented at trial to support defendant’s misdemeanor convictions, and he
was acquitted of the felony charges, he has failed to make the requisite showing of prejudice.

        Defendant also contends that he was prejudiced because the jury rendered an
impermissible compromise verdict in this case, which would not have occurred but for the
improper submission of the felony charges. As discussed supra, defendant failed to meet his
burden of demonstrating a compromise verdict, as the record shows that his convictions and
acquittals were supported by the different circumstances underlying each charge. Thus, because
defendant is unable to establish prejudice, he is not entitled to appellate relief.

        Finally, we reject defendant’s claim that the trial court committed an error of law in
binding defendant over to the circuit court on a charge of common-law misconduct in office
pursuant to MCL 750.505 because the conduct giving rise to the statutory charges was the same
as the conduct giving rise to the common-law misconduct in office charge. “[W]hen a charge
sets forth all the elements of the statutory offense, a conviction under MCL 750.505 . . . cannot
be sustained.” People v Thomas, 438 Mich 448, 453; 475 NW2d 288 (1991); see also People v
Waterstone, 296 Mich App 121, 134; 818 NW2d 432 (2012). Therefore, to determine whether
dismissal of a common-law offense is warranted, the elements of the statutory offense must be
examined. Thomas, 438 Mich at 453. If a defendant has been charged with violating a statute
that includes elements different from common-law misconduct in office, charges under both the
statutory offense and MCL 750.505 are permissible. See Thomas, 438 Mich at 453; People v
Milton, 257 Mich App 467, 472; 668 NW2d 387 (2003).

        Contrary to defendant’s claims, a charge of common-law misconduct in office does not
set forth the elements of the statutory offenses of false certification and using a computer to
commit a crime. Compare People v Hardrick, 258 Mich App 238, 244-245; 671 NW2d 548
(2003), and People v Coutu, 235 Mich App 695, 705-706; 599 NW2d 556 (1999), with MCL
257.903, MCL 257.208c, and MCL 752.796.3 The mere fact that the same factual circumstances
gave rise to the common-law and statutory charges does not require us to conclude that the trial
court erred in binding defendant over to the circuit court on a charge of common-law misconduct
in office. Again, “the presentation of sufficient evidence to convict at trial renders any erroneous
bindover decision harmless.” People v Bennett, 290 Mich App at 481.

                                         V. CONCLUSION

          Defendant has failed to establish that any of the claims of error raised on appeal warrant
relief.




3
 Notably, MCL 752.796(2) also provides, “This section does not prohibit a person from being
charged with, convicted of, or punished for any other violation of law committed by that person
while violating or attempting to violate this section, including the underlying offense.”


                                                 -7-
Affirmed.

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




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