            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 18, 2020
               Plaintiff-Appellee,

v                                                                   No. 346690
                                                                    Grand Traverse Circuit Court
NICHOLAS CORY PERKINS,                                              LC No. 18-013042-FH

               Defendant-Appellant.


Before: MURRAY, C.J., and JANSEN and MARKEY, JJ.

PER CURIAM.

       Defendant was convicted of two counts of uttering and publishing a forged instrument,
MCL 750.249j. Defendant was sentenced, as a third-offense habitual offender, MCL 769.11, to
concurrent prison terms of 24 to 336 months. We reverse, vacate defendant’s convictions and
sentences, and remand for a new trial.

                                 I. FACTUAL BACKGROUND

       Defendant met Angela Bembeneck through his ex-girlfriend in the fall of 2016. Defendant
explained that after he was released from unrelated incarceration in March 2017, Dylan Williams,
Bembeneck’s boyfriend, reached out to him and offered to let defendant stay at their apartment for
a few days. Defendant agreed.

         During that time, Bembeneck mentioned that “her brother had gotten pulled over on the
way back from Detroit and he had got caught with some heroin and went to jail.” Defendant
testified that Bembeneck showed him a text message purportedly from her brother that asked her
to use his business checks to get him released on bond: “So she had showed me a message on her
cell phone saying that I got pulled over,” “I got stuff on me, I’m going to jail,” and “[u]se my
checks to get me out.” According to defendant, those texts were from someone named “Sam
Mitchell,” and after discussing it with them and seeing the text message, defendant agreed to help.
Although somewhat suspicious, defendant said he was persuaded “because [he] had seen that
message from Sam giving her authority to write the checks out . . . .”




                                                -1-
         According to defendant, both Bembeneck and Williams claimed that they lost their IDs
and asked him to cash some checks for her brother to help get him out of jail. “And the next day
I went and I cashed the first check,” defendant admitted. He testified that the first check was for
$698.15 and was dated March 2, 2017. When asked why the check’s memo line stated “payroll,”
defendant explained that Bembeneck “told [him] that the reason for the payroll being on the check
was because Sam Mitchell was overdrafting . . . . Writing checks for over the amount and . . . he
said it was getting suspicious, so he told her to just write payroll on the check so it all looked legit.”

        Defendant testified that he successfully cashed the check at Cash Plus and received
$698.15, which he immediately gave to Bembeneck. Defendant testified that he did the same thing
the next day, on March 3, 2017, with a check for $672.47. According to defendant, Bembeneck
said the second check was needed because “his bond got raised because of the smuggling charge.”
Bembeneck also said that “she needed about $2,500 to retain a lawyer” for Mitchell, so she needed
him “to cash [a] third check” for $715.28. When defendant attempted to cash the third check at
Cash Plus, the teller refused: “She told me that she wasn’t going to cash the check because the
account was flagged.” Defendant testified that when he returned to the vehicle where Bembeneck
and Williams were waiting and explained what happened, Bembeneck “said [Mitchell] was
supposed to be calling her again that night,” that “[s]he was going to get everything figured out,”
and that “[Mitchell] was going to call his parents to get everything situated . . . with his account.”

        Defendant moved out of Bembeneck’s and Williams’ apartment on March 6th or 7th.
According to defendant, he did not keep any of the money from Cash Plus—“not a penny”—for
himself. He claimed that he was trying to be helpful because he “was thankful that they were
giving [him] a place to stay.” “I was helping them out and they were helping me out,” he said.

       The jury ultimately convicted defendant of two counts of uttering and publishing forged
instruments. Defendant was acquitted of a third count, and was sentenced as noted supra. This
appeal followed.

                               II. MISSING WITNESS INSTRUCTION

       Defendant first argues that the trial court abused its discretion by failing to give the missing
witness instruction, M Crim JI 5.12, with respect to the prosecution’s failure to produce
Bembeneck as a witness at trial.1 We agree and further conclude that defendant is entitled to a
new trial.

        This Court reviews a trial court’s decision regarding the prosecution’s exercise of due
diligence to produce an endorsed witness at trial and whether a missing witness instruction is
appropriate for an abuse of discretion. People v Eccles, 260 Mich App 379, 389; 677 NW2d 76
(2004). An abuse of discretion occurs when a trial court’s decision falls outside the range of
reasonable and principled outcomes. People v Duenaz, 306 Mich App 85, 90; 854 NW2d 531
(2014).




1
    We note that the prosecution did not file a brief on appeal in this matter.


                                                   -2-
        “A prosecutor who endorses a witness under MCL 767.40a(3) is obliged to exercise due
diligence to produce that witness at trial.” Eccles, 260 Mich App at 388. “It is the fact of
endorsement, regardless of whether or not such endorsement is required, that puts the obligation
of production on the prosecutor.” People v Cummings, 171 Mich App 577, 585; 430 NW2d 790
(1988). If a prosecutor “fails to produce an endorsed witness,” he or she may be excused from the
obligation by showing “that the witness could not be produced despite the exercise of due
diligence.” Eccles, 260 Mich App at 388. “The test is one of reasonableness and depends on the
facts and circumstances of each case, i.e., whether diligent good-faith efforts were made to procure
the testimony, not whether more stringent efforts would have produced it.” People v Bean, 457
Mich 677, 684; 580 NW2d 390 (1998). “If the prosecution fails to produce a witness who has not
been properly excused, the trial court has discretion in fashioning a remedy for the violation of
MCL 767.40a, which may include a missing witness instruction.” People v Everett, 318 Mich App
511, 519; 899 NW2d 94 (2017).

        What actions taken by law enforcement or the prosecution constitute due diligence in
locating an endorsed witness have been thoroughly discussed in Michigan jurisprudence. For
example, in Eccles, this Court determined that the prosecution had exercised due diligence in
locating a missing witness after the police officer in charge of the case interviewed witnesses at
the home of the witness’s mother, and attempted to serve the witness with a subpoena several
times. Eccles, 260 Mich App at 389. When the witness failed to appear for trial, law enforcement
contacted jails, hospitals, and morgues, as well as the police department of the city that the witness
was supposedly living in. Id. at 390.

        Comparatively, in Bean, the prosecution’s attempts to contact a missing witness were
limited to a few phone calls and a visit to an abandoned building that belonged to the witness’s
aunt, even after the prosecution learned that the witness may have relocated to Washington, D.C.
Bean, 457 Mich at 687-689. Our Supreme Court determined that the prosecution failed to exercise
due diligence to locate the missing witness. Id. at 690.

        In this case, the trial court concluded that Bembeneck could not be produced despite the
prosecution’s exercise of due diligence; however, the record before us does not support that
finding. The prosecution argued that law enforcement went “through pretty extensive efforts to
find her[,]” including going “to her last known address, knock[ing] several times” one year before
trial, “run[ning] the license plates on the vehicles that were there,” speaking “with a neighbor”
who confirmed that Bembeneck lived at the apartment, calling “[t]hree phone numbers,” and even
“tr[ying] personally to get in touch with” her. Additionally, the prosecution explained law
enforcement “went to her last known address” just a couple of weeks before trial but was advised
that she no longer lived there. According to the prosecution, there was no other information for
law enforcement to act on.

       However, there was much more the prosecution could have done to locate Bembeneck.
For example, law enforcement could have gone to Bembeneck’s last known residence more than




                                                 -3-
twice during a twelve-month period2; law enforcement could have conducted surveillance or
remained at the house when the lights were on and it appeared someone was home; the prosecution
could have contacted other local law enforcement agencies, governmental offices, jails, hospitals,
or morgues to determine Bembeneck’s whereabouts considering that Bembeneck was a frequent
offender and possible confidential informant. Indeed, in an affidavit submitted to this Court,
accepted into the record on appeal, MCR 7.216(A)(4), Bembeneck averred:

       1. I used to work for Sam Mitchell. I would drive him around and do office work
          for him including emails, calls, and invoices.

       2. While I worked for Sam he asked me to write checks for him out of his checking
          account.

       3. At that time Sam had different people cashing checks for him.

       4. Sam had a drug problem, and during this time period he was frequently
          traveling to Detroit to buy drugs.

       5. I worked for Sam until he went to jail in late February 2017.

       6. While Same was in jail he asked for money for his books and directed me to
          write checks out of his account to get the money.

       7. The checks that Nick Perkins cashed were cashed with Sam’s permission in
          order to get money to Sam.

       8. I was not aware that Nick Perkins faced criminal charges as a result of those
          checks or that I was considered a witness in his case.

       9. At the time of Nick Perkins’ trial (October 2018) my whereabouts were known
          to the Grand Traverse County Circuit Court and Prosecutor’s Office as I was
          either incarcerated or on probation in Grand Traverse County for the entire year
          of 2018.

           a. In January of 2018, I was incarcerated in the Grand Traverse County Jail,
              then released into a 30-day Community Corrections program.

           b. Following that I lived at Addiction Treatment Services (ATS) transitional
              housing and reported weekly to my probation officer.

           c. From June to October 2018 I was in the Grand Traverse County Jail.




2
  See People v James (After Remand), 192 Mich App at 568, 571; 481 NW2d 715 (1992), where
this Court concluded that due diligence considers not only the efforts expended in locating a
missing witness, but also the timing of those efforts.


                                               -4-
           d. Starting in October 2018, I participated in a 28-day impatient program at
              Munson Hospital.

           e. After that, I could have been located through my probation officer who had
              my address and to whom I regularly reported.

       10. At no point did anyone come speak to me about Nick Perkins cashing checks
           for Sam Mitchell.

       11. If called to testify, my statements would be the same as they are outlined above.



On the basis of the foregoing, we conclude that the prosecution failed to exercise due diligence in
locating Bembeneck, and the trial court abused its discretion in finding otherwise.

        Our inquiry does not end there. A missing witness instruction, given as a remedy for a
violation of MCL 767.40a, is sometimes, but not always appropriate. People v Perez, 469 Mich
415, 420; 670 NW2d 655 (2003). Whether a missing witness instruction is warranted depends “on
the specific facts of th[e] case.” Id. at 420-421. Additionally, it is not enough for defendant to
show he was entitled to a missing witness instruction. “[T]o warrant reversal for a violation of
MCL 767.40a, defendant must show that he was prejudiced by noncompliance with the statute.”
Everett, 318 Mich App at 523 (citation and internal quotation marks omitted). And, “as the
appellant in this case, defendant bears the burden of providing this Court ‘with a record to verify
the factual basis of any argument upon which reversal [might be] predicated.’ ” Id., quoting People
v Elston, 462 Mich 751, 762; 614 NW2d 595 (2000). Any “[e]rror in the admission or exclusion
of evidence does not warrant reversal if, in light of the other properly admitted evidence, it does
not affirmatively appear more probable than not that a different outcome would have resulted
without the error.” Id. at 523-524 (citation and internal quotation marks omitted).

         We conclude that not only was a missing witness instruction appropriate based on the facts
of this case, but also that defendant has met his burden for reversal here. “Uttering and publishing
consists of three elements: (1) knowledge on the part of the defendant that the instrument was
false; (2) an intent to defraud; and (3) presentation of the forged instrument for payment.” People
v Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001) (citation and internal quotation marks
omitted). The first and second elements, which concern defendant’s knowledge and intent, were
at issue in this case. Indeed, defendant’s defense theory was that he did not know that the checks
were false, and therefore he did not possess the requisite intent to defraud.

        To establish defendant’s knowledge and intent, the prosecution offered the following
evidence: defendant’s relationship with Bembeneck and Williams; defendant crumbling up the
check and walking away after the third check was declined; and the fact that the checks had
“payroll” in the memo line despite the fact that defendant admittedly never worked for Mitchell.
This evidence, however, does not speak directly to defendant’s knowledge or intent, which are
requisite elements of uttering and publishing. We conclude that the evidence presented does not
make it “affirmatively appear more probable than not that a different outcome would have resulted




                                                -5-
without” Bembeneck’s testimony or a missing witness instruction. Everett, 318 Mich App at 523-
524 (citation and internal quotation marks omitted).

        Where the prosecution failed to produce Bembeneck or exercise its due diligence in
producing Bembeneck, defendant was prejudiced by the trial court’s failure to give the missing
witness instruction. Both parties relied on Bembeneck’s role in this case. The prosecution argued
that Bembeneck was the middleman between the theft of Mitchell’s business account checks and
defendant’s cashing of the checks to establish defendant’s guilt. Defendant claimed that
Bembeneck had asked him to cash the checks and had shown him a text message purportedly from
Mitchell granting Bembeneck permission to write the checks on Mitchell’s business account. In
her affidavit, cited supra, Bembeneck confirmed defendant’s version of events, specifically that
defendant had permission to cash the checks at issue.

        Where defendant’s knowledge and intent were at issue, not only would Bembeneck’s
testimony have aided the jury in its credibility determination, but also it would have helped to clear
up the jury’s confusion about whether Bembeneck had authority to write checks on Mitchell’s
behalf. Indeed, during deliberations, the jury inquired about whether Bembeneck had such
authority because two checks written on Mitchell’s business account in Februrary 2017 appeared
to bear Bembeneck’s signature. Again, in her affidavit, Bembeneck confirmed that she had
authority to cash checks on Mitchell’s behalf while she worked for him. Accordingly, we conclude
that without the missing witness instruction, defendant did not receive the benefit that comes from
allowing the jury to infer that Bembeneck’s testimony would have been harmful to the
prosecution’s case. Accordingly, we conclude that reversal is warranted, and defendant is entitled
to a new trial.

        On appeal, defendant also raises issues of ineffective assistance of counsel and inaccurate
scoring of the sentencing guidelines. In light of the foregoing, however, we decline to address
these issues.

        We reverse, vacate defendant’s convictions and sentences, and remand for a new trial. We
do not retain jurisdiction.


                                                              /s/ Christopher M. Murray
                                                              /s/ Kathleen Jansen
                                                              /s/ Jane E. Markey




                                                 -6-
