                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    September 13, 2016
               Plaintiff-Appellant,

v                                                                   No. 327008
                                                                    Wayne Circuit Court
DAMIN HAGAN,                                                        LC No. 14-008057-FH

               Defendant-Appellee.


Before: GADOLA, P.J., and WILDER and METER, JJ.

PER CURIAM.

        The prosecution appeals as of right the trial court’s order granting defendant’s motion to
dismiss on the ground of prearrest delay. Defendant was charged with one count of first-degree
child abuse, MCL 750.136b(2). We reverse and remand.

        The prosecution contends that the trial court erred when it granted defendant’s motion to
dismiss because defendant failed to demonstrate actual and substantial prejudice resulting from
the prearrest delay.

        This Court reviews for an abuse of discretion a trial court’s ruling on a motion to dismiss
because of prearrest delay. People v Tanner, 255 Mich App 369, 412; 660 NW2d 746, rev’d on
other grounds 469 Mich 437 (2003); People v Herndon, 246 Mich App 371, 389; 633 NW2d 376
(2001). “An abuse of discretion occurs when the court chooses an outcome that falls outside the
range of reasonable and principled outcomes.” People v Unger, 278 Mich App 210, 217; 749
NW2d 272 (2008). “A trial court necessarily abuses its discretion when it makes an error of
law.” People v Waterstone, 296 Mich App 121, 132; 818 NW2d 432 (2012). Additionally,
defendant’s claim of prearrest delay implicates constitutional due process rights, which this
Court reviews de novo. People v Cain, 238 Mich App 95, 108; 605 NW2d 28 (1999).

       A mere delay between the time of the offense and the time of a defendant’s arrest does
not amount to a denial of due process. People v Patton, 285 Mich App 229, 236; 775 NW2d 610
(2009). “There is no constitutional right to be arrested.” Id. (citations and quotation marks
omitted). Instead, the “guideline is whether the record presents evidence of prejudice resulting
from the delay which violates a defendant’s right to procedural due process.” Id. (citations and
quotation marks omitted). In order to determine whether a defendant’s due process rights have
been violated in the context of prearrest delay, Michigan applies a balancing test. Cain, 238

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Mich App at 108. This balancing test requires that the defendant first come forward with
evidence of prejudice resulting from the delay, and once prejudice has been established, the
burden shifts to the prosecution to persuade the reviewing court that the reason for the delay was
sufficient to justify any prejudice that resulted. Id. at 109. “Before dismissal may be granted
because of prearrest delay there must be actual and substantial prejudice to the defendant’s right
to a fair trial and an intent by the prosecution to gain a tactical advantage.” Patton, 285 Mich
App at 237 (citation and quotation marks omitted).

        In order to demonstrate prejudice, a “[d]efendant must present evidence of actual and
substantial prejudice, not mere speculation.” People v Woolfolk, 304 Mich App 450, 454; 848
NW2d 169 (2014) (emphasis added). “[A]ctual and substantial prejudice requires more than
generalized allegations.” Patton, 285 Mich App at 237 (citation and quotation marks omitted).
Substantial prejudice may be found where the delay has “meaningfully impair[ed] the
defendant’s ability to defend against the charge in such a manner that the outcome of the
proceedings was likely affected.” Id. However, general allegations that the delay resulted in lost
memories, witnesses, and evidence are not sufficient to demonstrate prejudice, . . . even if the
delay was an especially long one[.] Woolfolk, 304 Mich App at 454 (emphasis added); see also
People v Adams, 232 Mich App 128, 138-139; 591 NW2d 44 (1998) (holding that a prearrest
delay of 12 years was not prejudicial because the defendant’s claims of prejudice were “too
indefinite and speculative” to establish actual and substantial prejudice).

        Here, defendant failed to satisfy his initial burden of demonstrating actual and substantial
prejudice resulting from the prearrest delay. Defendant brought forth only general allegations.
More specifically, defendant alleged that because of a lack of memory, which would impair his
ability to remember what he was doing or where he was located around the time of the prior
incidents involving his son, DH, he would have difficulty in defending himself. Thus,
defendant’s argument focused on how evidence of DH’s previous injuries would prejudice him.
In large part, defendant essentially argued that the time lapse prejudiced him because it affected
his ability to develop an alibi defense. However, defendant’s assertions are unsupported. It is
well-settled that speculative, general allegations of lost memories, witnesses, and evidence are
insufficient to demonstrate prejudice. Woolfolk, 304 Mich App at 454.

        Moreover, defendant merely speculates that the prosecution would attempt to introduce
evidence of injuries that DH sustained before the December 7, 2010, incident involving
defendant. Defendant’s speculation that DH’s medical records and Child Protective Services
transcripts would have been prejudicial to him is insufficient to show actual and substantial
prejudice. See Adams, 232 Mich App at 137. Additionally, although the prearrest delay in the
present case was approximately 3½ years long, the length of delay does not automatically create
a showing of prejudice; instead, a defendant must present evidence of actual and substantial
prejudice to satisfy his burden in a prearrest delay claim. Id. We conclude that defendant failed
to demonstrate actual and substantial prejudice, which was required to shift the burden to the
prosecution and necessitate further evaluation. See Cain, 238 Mich App at 109.

        Even assuming, arguendo, that defendant had successfully shown actual and substantial
prejudice, the trial court erred in implicitly finding that the prosecution’s proffered reason for the
delay was not justified. After a defendant establishes actual and substantial prejudice, the burden
shifts to the prosecution to persuade the reviewing court “that the reason for the delay was

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sufficient to justify whatever prejudice results.” Id. at 108 (citations and quotation marks
omitted). An example of a justified reason for delay is the need to investigate the defendant
further rather than a desire to obtain a tactical advantage. Adams, 232 Mich App at 140-141. “In
evaluating the reason for the delay, the court may consider the explanation for the delay, whether
the delay was deliberate, and whether undue prejudice attached to the defendant.” Cain, 238
Mich App at 109 (citations and quotation marks omitted).

        Here, the prosecutor noted that he inherited the case from another prosecutor, and as
such, he could not give a specific reason for the delay. The best reason the prosecutor could
provide was the lack of attorneys to review cases in the Child Abuse Division of the prosecutor’s
office. Although the prosecution may not have persuaded the trial court of the reason for the
delay, there was no evidence that the prosecution deliberately delayed bringing a charge against
defendant or that the delay was the result of the prosecution seeking to gain a tactical advantage.
Additionally, the prosecutor denied any malicious intent or intent to gain a tactical advantage by
the prearrest delay. A review of the lower court record reveals, at most, the prosecution’s
oversight in bringing the charge against defendant rather than a deliberate attempt to delay
proceedings against defendant, and again, there is insufficient evidence of prejudice. Reversal is
warranted. See, generally, id.

       Reversed and remanded for further proceedings. We do not retain jurisdiction.



                                                            /s/ Michael F. Gadola
                                                            /s/ Kurtis T. Wilder
                                                            /s/ Patrick M. Meter




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