                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   July 16, 2015
              Plaintiff-Appellant,

v                                                                  No. 321926
                                                                   Oakland Circuit Court
JAMES PATRICK KELEL, JR.,                                          LC No. 2014-138797-AR

              Defendant-Appellee.


Before: HOEKSTRA, P.J., and JANSEN and METER, JJ.

PER CURIAM.

        Plaintiff appeals by leave granted the circuit court order affirming the district court’s
dismissal of one count each of operating under the influence of a controlled substance, 3rd
offense, MCL 257.625(1), and possession of a controlled substance, MCL 333.7403(1),
(2)(b)(ii). We vacate the decisions of the lower courts and remand to the district court for
consideration under the proper standard for determining whether to bind defendant over for trial.

       According to the evidence introduced at the preliminary examination, in the early
morning hours of July 28, 2012, police observed defendant driving 25 to 30 mph, in an area
where the speed limit was 55 mph. When police spoke with defendant, his speech was slowed
and slurred, his movements were lethargic, and he was visibly shaking. Defendant denied
consuming alcohol, but admitted to taking a Vicodin earlier in the day. Based on defendant’s
performance of field sobriety tests, a police officer concluded, based on his training and
experience, that defendant was under the influence of alcohol or drugs. Defendant was then
placed under arrest. While performing an inventory search of the vehicle, officers found an
unmarked prescription bottle containing 12 white pills, later identified as dihydrocodeinone, a
Schedule 3 narcotic. The results of a blood test showed that, among other things, defendant had
hydrocodone and hydrocodone metabolite in his system. Hydrocodone is a controlled
medication contained in Vicodin and other prescription medications. As part of his defense to
the charges, defendant introduced into evidence a 2009 prescription for 30 tablets of
hydrocodone.

       Defendant was charged with operating under the influence of a controlled substance, 3rd
offense, MCL 257.625(1), possession of a controlled substance, MCL 333.7403(1),(2)(b)(ii), and
a misdemeanor charge for operating with a suspended license, MCL 257.904(3)(a). Following
the preliminary examination, the district court dismissed the charges for operating under the

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influence of a controlled substance and possession of a controlled substance.1 Notably, when
issuing its ruling, the district court stated that probable cause was not the appropriate standard to
determine whether a crime had been committed. Rather, the court found that a preponderance of
the evidence was the appropriate standard and that, under this standard, the prosecution had not
shown that a crime was committed. Specifically, the district court stated:

               The--the issue we have here is we’re--we’re using words probable cause
       consistently. The Court has never held that standard. In fact, I’ve written an
       article for the State Bar Journal. I’ve said it over and over and over again for
       years and years that that is not the appropriate standard to apply. Probable cause
       has been applied [when] the magistrate and/or the judge issued the--the search
       warrant or the warrant for the arrest and based on the Complaint that was given,
       that’s probable cause.

               At this particular point in time the Court’s duty is to find whether there has
       been [a crime] committed. That’s my duty. And I look at that, that means more
       likely than not that a crime has been committed then we get to probable cause
       whether the defendant did commit that crime. To show that the People have to
       show that--that a crime by a preponderance of the evidence was committed. . . .
       [The police officer] did his job as--as he appropriately should. The--there was
       reasonable suspicion, the car was driving too slow, he turns into a--into a
       landscape place . . . it’s dark, it’s at night and so he did the work that he should’ve
       done.

              The defendant exhibited problems. He couldn’t pass the sobriety test. All
       those which gave the--the Officer the right to make the arrest based upon probable
       cause.

               But now we get into a little higher standard. Was there a crime
       committed? And I think that [defense counsel] has shown the Court, and through
       the People’s own witnesses, that a crime has not been committed by a
       preponderance of the evidence . . . . You know, there’s nothing [in] the law that
       says he can’t carry his script in an unmarked script bottle, nothing says he can’t
       carry it on him any time he wants to. And I, you know, from--just from living
       life, know that people keeps [sic] scripts for a long time and they take it when
       they want to. It just is a fact of life.

              It is not enough to show me that a crime was committed. So, counts [one]
       and two are dismissed.




1
 The district court ordered that defendant’s charge for operating with a suspended license was to
be set for pre-trial.


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The circuit court affirmed the dismissal of the charges, finding that the district court had not
abused its discretion. This Court then granted the prosecution’s application for leave to appeal
the circuit court’s order.

        On appeal, the prosecution argues that the district court abused its discretion by failing to
apply the correct standard to the question of whether a crime was committed. In particular, the
prosecutor argues that the trial court erroneously applied a preponderance of the evidence
standard to whether a crime was committed when in actuality a probable cause standard governs
this determination pursuant to MCR 6.110(E). We agree.

         Following review by the circuit court, our review of the district court’s bindover decision
is de novo in the sense that we afford no deference to the circuit court’s review. People v
Norwood, 303 Mich App 466, 468; 843 NW2d 775 (2013). More particularly, we review a
district court’s determination of whether there was sufficient evidence to bind over a defendant
for an abuse of discretion. People v Flick, 487 Mich 1, 9; 790 NW2d 295 (2010). “A trial court
abuses its discretion when its decision falls outside the range of reasonable and principled
outcomes.” People v Waterstone, 296 Mich App 121, 132; 818 NW2d 432 (2012). We review
de novo the district court’s rulings concerning questions of law. Flick, 487 Mich at 9. If a trial
court makes an error of law, an abuse of discretion has necessarily occurred. Waterstone, 296
Mich App at 132.

       The issue of contention in this case is a question of law, namely whether the probable
cause standard applies to both the determination that a felony has been committed and the
determination that defendant committed the crime, or whether, as the district court concluded, a
preponderance of the evidence standard instead governs the determination of whether a crime
has been committed. Relevant to resolution of this dispute, at the time the order being appealed
was entered,2 MCL 766.13 provided:

                 If it shall appear to the magistrate at the conclusion of the preliminary
         examination either that an offense has not been committed or that there is not
         probable cause for charging the defendant therewith, he shall discharge such
         defendant. If it shall appear to the magistrate at the conclusion of the preliminary
         examination that a felony has been committed and there is probable cause for
         charging the defendant therewith, the magistrate shall forthwith bind the
         defendant to appear before the circuit court of such county, or other court having
         jurisdiction of the cause, for trial.

By its plain terms, MCL 766.13 makes clear that a probable cause standard applies to the
determination of whether there is cause for charging a defendant with the crime, but the statute
does not define the standard of proof applicable to the determination of whether a crime has been
committed. See People v Fiedler, 194 Mich App 682, 690; 487 NW2d 831 (1992). The burden
of proof applicable to this determination has, however, been clearly defined by MCR 6.110(E),
which provides in relevant part that:


2
    MCL 766.13 has been recently amended. See 2014 PA 123, effective May 2014.


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       If, after considering the evidence, the court determines that probable cause exists
       to believe both that an offense not cognizable by the district court has been
       committed and that the defendant committed it, the court must bind the defendant
       over for trial. [Emphasis added.]

        There is no conflict between MCL 766.13 and MCR 6.110(E), and the probable cause
standard set forth in MCR 6.110(E) governs consideration of whether a crime has been
committed. See Fiedler, 194 Mich App at 689-692. Indeed, consistent with the plain language
of the court rule, the Michigan Supreme Court and this Court have repeatedly recognized that
“[t]he purpose of a preliminary examination is to determine whether there is probable cause to
believe that a crime was committed and whether there is probable cause to believe that the
defendant committed it.” People v Perkins, 468 Mich 448, 452; 662 NW2d 727 (2003); People v
Cohen, 294 Mich App 70, 74; 816 NW2d 474 (2011); People v Lowery, 274 Mich App 684, 685;
736 NW2d 586 (2007). In short, it is firmly established in this state that, as a matter of law, the
probable cause standard governs the determination of whether a crime has been committed as
well as the determination of whether there is reason to believe defendant committed that crime.

       By instead applying a preponderance of the evidence standard to the determination of
whether a crime had been committed, the district court disregarded binding appellate precedent
and ignored the plain language of MCR 6.110(E). Further, by applying an incorrect legal
standard, the district court made an error of law and thus necessarily abused its discretion. See
Waterstone, 296 Mich App at 132. Consequently, we vacate the decisions of the lower courts
and remand to the district court for bindover consideration under the correct legal standard
consistent with this opinion.

       Vacated and remanded. We do not retain jurisdiction.



                                                            /s/ Joel P. Hoekstra
                                                            /s/ Kathleen Jansen
                                                            /s/ Patrick M. Meter




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