                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 12, 2016
               Plaintiff-Appellee,

v                                                                  No. 322998
                                                                   Midland Circuit Court
SHAWN KRISTI DICKEN,                                               LC No. 13-005531-FH

               Defendant-Appellant.


Before: SHAPIRO, P.J., and O’CONNELL and WILDER, JJ.

PER CURIAM.

        A jury convicted defendant of one count of conducting a criminal enterprise, MCL
750.159i(1), seven counts of obtaining money by false pretenses in an amount of $1,000 or more
but less than $20,000, MCL 750.218(4)(a), and one count of embezzlement of a vulnerable adult
in an amount of $50,000 or more but less than $100,000, MCL 750.174a(6)(a). The trial court
sentenced defendant to concurrent prison terms of 140 months to 20 years for the criminal
enterprise conviction, 23 months to 5 years for each false pretenses conviction, and 71 months to
15 years for the embezzlement conviction. Defendant appeals as of right. We affirm
defendant’s convictions and her sentences for false pretenses and embezzlement, but remand for
further proceedings regarding the reasonableness of defendant’s departure sentence for the
conducting a criminal enterprise conviction.

        This case resulted from allegations that defendant, a registered representative or broker
who worked for the Diversified Group, placed the funds of many clients into a risky limited
partnership investment in which they lost substantial portions of their principal. The prosecutor
asserted that defendant did so in order to obtain commissions and that, to convince her clients to
enter into these risky investments, she misled them as to the risk to their principal and the
liquidity of the investment. In addition, several of defendant’s clients testified that their
signatures on various documents had been forged.

        On appeal, defendant first argues that she is entitled to a new trial because, contrary to
MCR 6.201(B) and in violation of Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215
(1963), the prosecution failed to produce various documents and materials in its possession.
Defendant contends that she was entitled to discovery of materials the prosecutor gathered
pertaining to other Diversified Group employees, material obtained pursuant to a search warrant




                                               -1-
executed at a credit union for Triton Commercial Lending,1 and evidence pertaining to the
operation of Diversified Group by a receiver.2 We disagree.

        “[D]iscovery in criminal cases is constrained by the limitations expressly set forth in the
reciprocal criminal discovery rule promulgated by our Supreme Court, MCR 6.201.” People v
Greenfield (On Reconsideration), 271 Mich App 442, 447; 722 NW2d 254 (2006). Material
subject to discovery must be specified in the court rule, or the party seeking discovery must
establish good cause for the trial court to order discovery. See People v Phillips, 468 Mich 583,
584, 593; 663 NW2d 463 (2003). MCR 6.201(B) provides:

               (B) Discovery of Information Known to the Prosecuting Attorney.
         Upon request, the prosecuting attorney must provide each defendant:

                (1) any exculpatory information or evidence known to the prosecuting
         attorney:

               (2) any police report and interrogation records concerning the case, except
         so much of a report as concerns a continuing investigation;

                 (3) any written or recorded statements, including electronically recorded
         statements, by a defendant, codefendant, or accomplice pertaining to the case,
         even if that person is not a prospective witness at trial;

                (4) any affidavit, warrant, and return pertaining to a search or seizure in
         connection with the case; and

                (5) any plea agreement, grant of immunity, or other agreement for
         testimony in connection with the case.

        Defendant requested “a copy of the complete investigative file, including the reports
involving the other employees and contractors at the Diversified Group.” Defendant
acknowledges that some of the material to which she sought access pertained to a different
investigation, i.e., that of Triton Commercial Lending. MCR 6.201(B)(2) clearly limits
discovery of reports to reports concerning “the case[.]” Defendant cites no authority for her
position that the requirement that the prosecution provide discovery extends to material from


1
    Defendant owned Triton Commercial Lending.
2
  Defendant moved in the trial court to compel discovery pursuant to MCR 6.201(B), thereby
preserving the discovery issue. We review a trial court’s decision regarding discovery for an
abuse of discretion. People v Davie (After Remand), 225 Mich App 592, 597-598; 571 NW2d
229 (1997). However, defendant did not allege a Brady violation below. Accordingly,
defendant’s claim premised on Brady is unpreserved, and our review of that issue is limited to
plain error affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764;
597 NW2d 130 (1999).




                                                -2-
another case. Accordingly, the trial court did not abuse its discretion by denying defendant’s
request for further discovery under MCR 6.201(B)(2).

        Defendant also argues that the prosecution’s failure to produce the requested materials
violates Brady, in which the United States Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of
the prosecution.” Brady, 373 US at 87. In People v Chenault, 495 Mich 142, 150; 845 NW2d
731 (2014), our Supreme Court stated that the components of a Brady violation are that: “(1) the
prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) that is
material.” A defendant has the burden of proving the elements of a Brady violation. See People
v Schumacher, 276 Mich App 165, 177; 740 NW2d 534 (2007).

        Defendant states only that the requested materials might have contained evidence
favorable to her. She gives no specific examples of information that was contained in these
materials that might have assisted in her defense, nor did she request the trial court to conduct an
in camera inspection. To be subject to discovery under Brady, evidence must be favorable to the
defense and material. Chenault, 495 Mich at 150. “Evidence is favorable to the defense when it
is either exculpatory or impeaching.” Id. Evidence is material if “ ‘there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’ ” Id., quoting United States v Bagley, 473 US 667, 682; 105 S Ct
3375; 87 L Ed 2d 481 (1985). The mere possibility that evidence might be helpful is not
sufficient to establish materiality. United States v Agurs, 427 US 97, 109-110; 96 S Ct 2392; 49
L Ed 2d 342 (1976). Because defendant’s mere contention that the requested materials might
have contained favorable evidence is insufficient to establish that the evidence she sought was
material, defendant has not established a Brady violation.

       Next, defendant argues that the prosecution’s expert, Joseph Spiegel, an attorney and
expert in the area of securities law, should not have been allowed to testify because the
prosecution’s pretrial summary of his proposed testimony was insufficient to meet the
requirements of MCR 6.201(A)(3).3 We disagree.

       MCR 6.201(A)(3) states that upon request, a party must provide to other parties:

              [T]he curriculum vitae of an expert the party may call at trial and either a
       report by the expert or a written description of the substance of the proposed
       testimony of the expert, the expert’s opinion, and the underlying basis of that
       opinion[.]



3
  Defendant preserved this issue by challenging the adequacy of the prosecution’s pretrial
summary of Spiegel’s proposed testimony in a motion before trial, which the trial court denied.
We review the trial court’s decision on the motion for an abuse of discretion. Davie (After
Remand), 225 Mich App at 597-598.



                                                -3-
       Before trial, the prosecution provided the defense with a written summary of Spiegel’s
proposed testimony. The written summary stated:

              The substance of this testimony will be to educate the jury
       regarding securities, primarily what a security is and how they are
       regulated. He will testify as to the various licenses issued to investment
       advisors, the duties owed by advisors to their clients and the rationales for
       those duties.

               Mr. Spiegel will opine that your client breached a number of duties
       owed to her clients including making material misrepresentations of facts,
       omitting to disclose material facts, the suitability of the investments sold to
       clients, and her duty to employ due diligence in knowing the investments
       she was marketing.

              The underlying bases for these opinions are Mr. Spiegel’s knowledge
       of securities and a recitation to him of the accounts of [defendant’s]
       victims, such as her not disclosing the risk of the investment, its lack of
       liquidity, her telling clients that there was no risk in the investment, her
       failure to conduct any investigation to the suitability of senior citizens
       investing substantial amounts of money in such a speculative and long
       term venture, and her failure to independently investigate the investment.

         Defendant argues that the written summary did not “comply with the spirit of the rule,”
and she contends that a written summary “requires a level of precision which puts a person
trained in the same industry as the expert to know the areas encompassed.”4 We conclude that
the trial court did not abuse its discretion in finding that the prosecution’s summary of Spiegel’s
testimony was sufficient to satisfy MCR 6.201(A)(3). The written summary sets out the
substance of Spiegel’s testimony, his opinion, and the bases for that opinion. The trial court’s
statement of the matters to which Spiegel could testify indicates that Spiegel’s testimony would
relate to the specific facts of the alleged offenses and would rely on general securities law to
opine that defendant breached various duties. Moreover, the record discloses that defendant
vigorously cross-examined Spiegel, and there is no indication that defendant was unable to
question Spiegel due to a lack of understanding of the bases of Spiegel’s opinion. Defendant has
made no showing that the lack of further information regarding Spiegel’s testimony prevented
her from countering Spiegel’s testimony. Defendant has not demonstrated that the trial court



4
  Defendant relies on patent cases that discuss 35 USC 112, a statute that requires a patent to
“contain a written description of the invention, and of the manner and process of making and
using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to
which it pertains, or with which it is most nearly connected, to make and use the same, and shall
set forth the best mode contemplated by the inventor or joint inventor of carrying out the
invention.” This reliance is misplaced. 35 USC 112 applies only to a specialized area of law,
whereas MCR 6.201 applies to discovery in general.



                                                -4-
abused its discretion in ruling that the written summary of Spiegel’s proposed testimony
complied with MCR 6.201(A)(3).

        Defendant also argues that Spiegel offered improper testimony setting forth legal
conclusions.5 Defendant, however, has not demonstrated a plain error associated with Spiegel’s
testimony. Spiegel did not testify that defendant was guilty of a crime. Instead, he testified that
defendant acted negligently by failing to use due diligence on the limited partnership investment
and by selling the investment to clients who could not afford the risk. Negligence is not
sufficient to establish guilt of the charged crimes. The questions of intent and criminal
responsibility were left solely to the jury. Accordingly, defendant has not satisfied her burden of
demonstrating a plain error.

        Next, defendant argues that the trial court abused its discretion by refusing to admit the
entirety of defendant’s 75-minute recorded interview with state investigators. Defendant asserts
that the trial court’s exclusion of this evidence prevented her from presenting a defense, and thus
denied her due process.6 We disagree.

       Relevant evidence is generally admissible. MRE 402. However, relevant evidence may
be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.” MRE 403. Defendant sought to admit
the 75-minute recording of her interview with state investigators during an investigator’s
testimony in order to show that she cooperated with investigators. She also asserted that the
evidence could support a conclusion that she lacked the intent to commit a crime at the time the
alleged offenses occurred. The trial court expressed concern about confusion of the issues, and
on that basis, denied defendant’s request to play the entire recording. Although the trial court
added that defendant could play portions of the recording for impeachment purposes, defendant
made no attempt to do so.

        We conclude that the trial court did not abuse its discretion by denying defendant’s
request to admit the entire recording. The trial court’s MRE 403 concerns were legitimate.
Defendant’s sole stated purpose for seeking to admit the recording was to show that she
cooperated with investigators. However, the investigator testified that defendant cooperated and
provided written information upon request. Therefore, the trial court had a principled basis for
its conclusion that the interview was not necessary to show that defendant cooperated, and that
considerations of undue delay, waste of time, or needless presentation of cumulative evidence


5
  Defendant did not object below on the ground that Spiegel’s proposed testimony sought to
present inadmissible legal opinions, and she did not object at trial to Spiegel stating legal
conclusions. Therefore, defendant’s complaint regarding the scope of Spiegel’s actual testimony
is unpreserved and review is limited to plain error affecting substantial rights. Carines, 460
Mich 763-764.
6
 “We review for abuse of discretion a trial court’s decision to admit or exclude evidence.”
People v Herndon, 246 Mich App 371, 406; 633 NW2d 376 (2001).



                                                -5-
justified exclusion of the entire 75-minute recorded interview. The trial court permitted
defendant to play portions of the recording for impeachment purposes, but she chose not to do
so. Accordingly, the trial court did not abuse its discretion by denying defendant’s request to
play the entire recording.

        Moreover, the trial court’s exclusion of this evidence did not violate her constitutional
right to present a defense. Although a criminal defendant has a state and federal constitutional
right to present a defense, Const 1963, art 1, § 13; US Const Ams VI, XIV; People v Kurr, 253
Mich App 317, 326; 654 NW2d 651 (2002), that right is not absolute. People v Unger, 278 Mich
App 210, 250; 749 NW2d 272 (2008). “It is well settled that the right to assert a defense may
permissibly be limited by ‘established rules of procedure and evidence designed to assure both
fairness and reliability in the ascertainment of guilt and innocence.’ ” People v Toma, 462 Mich
281, 294; 613 NW2d 694 (2000), quoting Chambers v Mississippi, 410 US 284, 302; 93 S Ct
1038; 35 L Ed 2d 297 (1973). Defendant’s purpose for seeking to admit the recording was to
show that she cooperated with investigators. The trial court did not prevent defendant from
presenting or eliciting evidence of her cooperation. The investigator who interviewed defendant
admitted that defendant was cooperative. Defendant also testified that she cooperated with
investigators. To the extent that the prosecution sought to present evidence suggesting
otherwise, the trial court permitted defendant to introduce portions of the recorded interview for
impeachment. Accordingly, defendant was not denied the opportunity to present a defense.

        Next, defendant argues that the prosecutor committed misconduct by misleading the jury
into believing that a durable power of attorney held by a relative of one of defendant’s elderly
victims was akin to a guardianship and by suggesting that it was improper for defendant to deal
directly with the elderly victim.7 We disagree.

        The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial. People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). A durable
power of attorney is defined as “a power of attorney by which a principal designates another as
the principal’s attorney in fact in a writing” that contains specific wording. MCL 700.5501(1).
A guardian is appointed after a person has been found to be legally incapacitated. A guardian
must be appointed in a court proceeding. MCL 700.5303.

       The only remarks by the prosecutor that defendant directly challenges as improper are the
following comments made during opening statement:




7
  Because defendant did not object to the prosecutor’s statements regarding the power of
attorney, or to the relative’s testimony on that subject, this issue is unpreserved. This Court
generally reviews a claim of prosecutorial misconduct de novo, People v Pfaffle, 246 Mich App
282, 288; 632 NW2d 162 (2001), but because this issue is unpreserved, review is limited to plain
error affecting defendant’s substantial rights. Carines, 460 Mich at 763-764.




                                               -6-
                 [Defendant] knows that [the victim] has a Power of Attorney for her
         financial affairs. [Defendant] meets with [the victim] and the Power of Attorney
         to discuss this investment.

                They’re not satisfied. Not sure. So they tell [defendant] that they are
         going to be out of state back in December of 2011. They set up a meeting
         afterwards to make a final decision.

                While the Power of Attorney is out of state, [defendant] goes to the
         nursing home where [the victim] is and consummates the deal for $54,000.

The prosecutor did not misrepresent the relative’s legal status or authority in these remarks.
Rather, the prosecutor accurately represented that the relative had a power of attorney that gave
him authority over the victim’s financial affairs. The prosecutor’s remarks did not indicate that
the victim lacked the ability to act on her own behalf. Accordingly, there was no plain error.

         Furthermore, defendant has not demonstrated a plain error associated with the relative’s
testimony. The scope of the relative’s authority, as well as the victim’s ability to act on her own
behalf, was fully explored during the relative’s testimony. The witness testified that he held a
power of attorney for the victim, but he never asserted that he was the victim’s guardian or that
the victim lacked the authority or ability to make her own financial decisions. A fair reading of
the witness’s testimony as a whole reveals that the witness felt a responsibility toward his elderly
cousin to look out for her best interests, but he never testified that she had been adjudged legally
incapacitated or that he was required to make financial decisions for her. The prosecutor did not
state or imply that the power of attorney prevented the victim from making her own financial
decisions. Accordingly, we find no error, plain or otherwise, associated with either the witness’s
testimony or the prosecutor’s arguments relating to that testimony. Further, an attorney who
testified for defendant stated that he reviewed the power of attorney, and he determined that it
did not stop the elderly victim from making her own financial decisions. The testimony of the
defense witness further protected defendant’s substantial rights in connection with this issue.
Therefore, we reject this claim of error.

        Finally, defendant argues that the trial court abused its discretion by departing from the
sentencing guidelines range of 51 to 85 months for her conviction of conducting a criminal
enterprise, and imposing a sentence of 140 months to 20 years for that conviction.8 Defendant
argues that the trial court erred in finding that substantial and compelling reasons supported a
departure from the guidelines range.

       At the time defendant was sentenced, MCL 769.34(3) authorized a trial court to depart
from the appropriate range established under the sentencing guidelines “if the court has a
substantial and compelling reason for that departure and states on the record the reasons for
departure.” Recently, however, in People v Lockridge, 498 Mich 358, 373-374; 870 NW2d 502



8
    Defendant does not challenge her other sentences.



                                                -7-
(2015),9 our Supreme Court addressed the constitutionality of Michigan’s sentencing guidelines
and held that the guidelines violate the Sixth Amendment “to the extent that OVs scored on the
basis of facts not admitted by the defendant or necessarily found by the jury verdict increase the
floor of the guidelines range, i.e. the defendant’s ‘mandatory minimum’ sentence[.]” The Court
struck down the mandate in MCL 769.34(2) that a trial court impose a sentence within the
guidelines range, and also struck down the requirement in MCL 769.34(3) that a trial court
articulate substantial and compelling reasons for a sentence that departs from the guidelines
range. Id. at 364-365. The Court held that “[a] sentence that departs from the applicable
guidelines range will be reviewed by an appellate court for reasonableness.” Id. at 392.

       The Lockridge Court did not specify the appropriate procedure for determining whether a
departure sentence is reasonable. However, this Court recently addressed and decided this issue
in People v Steanhouse, ___ Mich App ___; ___ NW2d ___ (2015) (Docket No. 318329); slip op
at 23-24, and held that the reasonableness of a sentence is to be determined by utilizing the
“principle of proportionality” test set out in People v Milbourn, 435 Mich 630; 461 NW2d 1
(1990), which requires a court to impose a sentence that is proportionate to the seriousness of the
offense and the offender. Factors utilized in determining proportionality include: “(1) the
seriousness of the offense; (2) factors not considered by the guidelines . . . ; and (3) factors that
were inadequately considered by the guidelines in a particular case[.]” Steanhouse, ___ Mich
App at ___; slip op at 24 (internal citations omitted).

        This Court in Steanhouse also addressed the question of remedy in pre-Lockridge cases
where, as here, the trial court imposed a departure sentence and “was unaware of and not
expressly bound by a reasonableness standard rooted in the Milbourn principle of proportionality
at the time of sentencing.” Steanhouse, ___ Mich App at ___; slip op at 25. This Court held
“that the procedure articulated in Lockridge, and modeled on that adopted in United States v
Crosby, 397 F3d 103 (CA 2, 2005), should apply” in such cases. Steanhouse, ___ Mich App at
___; slip op at 25, citing Lockridge, 498 Mich at 394-399.10 See also People v Shank, ___ Mich


9
  Defendant’s brief contains a request to hold this appeal in abeyance pending the Supreme
Court’s decision in Lockridge. Because the Supreme Court has decided Lockridge, this request
is now moot.
10
     In Lockridge, the Supreme Court explained

         [O]n a Crosby remand, a trial court should first allow a defendant an opportunity
         to inform the court that he or she will not seek resentencing. If notification is not
         received in a timely manner, the court (1) should obtain the views of counsel in
         some form, (2) may but is not required to hold a hearing on the matter, and (3)
         need not have the defendant present when it decides whether to resentence the
         defendant, but (4) must have the defendant present, as required by law, if it
         decides to resentence the defendant. Further, in determining whether the court
         would have imposed a materially different sentence but for the unconstitutional
         constraint, the court should consider only the “circumstances existing at the time
         of the original sentence.” [Lockridge, 498 Mich 398 (citation omitted).]




                                                 -8-
App ___; ___ NW2d ___ (2015) (Docket No. 321534); slip op at 3 (following Steanhouse).
Therefore, in accordance with Steanhouse, we remand this case to the trial court for further
proceedings regarding the reasonableness of defendant’s departure sentence for conducting a
criminal enterprise, consistent with the procedure prescribed in Crosby and adopted in
Lockridge.

        Defendant’s convictions and her sentences for false pretenses and embezzlement are
affirmed, but we remand for further proceedings regarding the reasonableness of defendant’s
departure sentence for conducting a criminal enterprise consistent with this opinion. We do not
retain jurisdiction.



                                                          /s/ Douglas B. Shapiro
                                                          /s/ Kurtis T. Wilder




                                              -9-
