[Copyrighted Material Omitted]
Ionia Circuit Court. LC No. 2013-015693-FH.
For PEOPLE OF MI, Attorney General, Prosecutor: CHERI BRUINSMA, LANSING, MI; IONIA COUNTY PROSECUTOR, IONIA, MI.
For ALLEN FLOYD PHILLIP, Defendant-Appellant: JOHN W UJLAKY, LANSING MI.
Before: BECKERING, P.J., and BORRELLO and GLEICHER, JJ.
[310 Mich.App. 330] Per Curiam.
Defendant was convicted by jury of failing to comply with the sex offenders registration act (SORA), second offense, MCL 28.729(1)(b). Defendant was sentenced as a second-offense habitual offender, MCL 769.10(1)(a), to 2 years' to 126 months' imprisonment. Defendant appeals as of right. For the reasons [310 Mich.App. 331] set forth in this opinion, we affirm defendant's conviction, vacate his sentence, and remand for resentencing.
I. FACTS AND PROCEDURAL HISTORY
Following a conviction of fourth-degree criminal sexual conduct in 2007, defendant was required to register under SORA. On April 30, 2012, defendant registered with the address of 6123 Clarksville Road. As required by SORA, defendant verified that address on January 9, 2013.
On March 17, 2013, Officer James Yeager received an anonymous tip that suggested defendant was not in compliance with SORA. Yeager testified that the tipster stated that someone should investigate where defendant was living and provided an address of 211 West Riverside Drive. Yeager and his partner began investigating the anonymous tip. Yeager testified that the Clarksville Road address was a trailer home that appeared to be uninhabitable. The residence was unlit and appeared to be vacant or unoccupied. Yeager testified that there was snow on the ground, but he observed no tire tracks in the driveway or footprints leading up to the front porch or around the back of the
trailer. Additionally, part of the skirting was missing from the trailer, exposing pipes underneath. Yeager explained that it did not appear as if the trailer was heated because with the freezing weather, the pipes could freeze up. Yeager testified that he and his partner established that nobody was at defendant's registered address on March 17, 2013.
Yeager and his partner returned to the Clarksville Road address three days later, on March 20, 2013. Yeager testified that as they approached the residence, he observed that his tire tracks from March 17 were the only visible tire tracks. He additionally observed [310 Mich.App. 332] that there were no footprints in the snow leading up to the residence. Yeager testified that it was again obvious no one was at the residence.
On March 26, 2013, Yeager returned a third time to defendant's Clarksville Road address. He testified that he walked around the residence and observed only his and his partner's footprints from their previous visits. Likewise, he observed no new tire tracks and once more concluded no one was at the residence.
After his third visit to 6123 Clarksville Road, Yeager visited the address given in the anonymous tip, 211 West Riverside Drive. He visited this address around 10:00 p.m. on March 26, 2013. Yeager testified that Lisa Allen, defendant's wife, answered the door when he knocked. Yeager asked Lisa for defendant. After initially denying that defendant was present, Lisa went inside the residence and defendant appeared at the front door shortly thereafter. Yeager asked defendant where he had been staying. Defendant responded with the Clarksville Road address and indicated that he had stayed there the previous night. Yeager told defendant that he had been monitoring that residence for a period of time and knew defendant was not staying there. Defendant then explained that he worked on Parmeter Road at a carnival-type operation run by Michael Clark. He stated that he stayed at 901 West Parmeter Road for a couple of weeks. Defendant told Yeager that he stopped by Lisa's residence after he finished working on Parmeter Road that day, but he planned to get a ride to his address on Clarksville Road to spend the night there. Defendant admitted to Yeager that it had been a couple of weeks since he had been to [310 Mich.App. 333] the Clarksville Road address, but he insisted it was inhabitable and heated. After this discussion, Yeager arrested defendant for failing to comply with SORA's registration requirements.
Yeager testified that after he arrested defendant, he attempted to locate 901 West Parmeter Road. Yeager could not locate 901, but he found 909 West Parmeter Road. At that address, Yeager came in contact with Lucinda Pilot. Pilot was familiar with defendant and was able to answer Yeager's questions regarding defendant's residency status. Pilot testified that, at the time she spoke to Yeager, defendant was not living with her or on the Parmeter Road property where he worked.
Pilot previously lived at 6123 Clarksville Road from May 2012 until October 12, 2012. Pilot testified that defendant was supposed to be living there as well. However, Pilot could only recall two nights from May 2012 to October 2012 that defendant slept there. Defendant slept there once in May 2012 when Pilot first moved into the trailer. The second time defendant slept there was on a night near the end of summer before his probation officer came out to see him. Regarding where
defendant slept on other nights, Pilot testified that on one occasion, she dropped defendant off at Lisa's house at night and picked him up the next morning. She testified that when she moved to Parmeter Road in October 2012, defendant was not living at the Clarksville Road address, and she did not know if he went back there.
Before the prosecutor rested her case-in-chief, defendant indicated that he wanted to call Kathryn Perry, Lisa's sister, as a defense witness. Initially, the trial court precluded Perry's testimony for two reasons: first, Perry sat in the courtroom during opening statements contrary to the trial court's sequestration order, [310 Mich.App. 334] and second, defendant failed to notify the prosecutor of the witness before trial. In discussing Perry's testimony, the prosecutor asked the trial court for a compromise. The prosecutor suggested that if the trial court allowed Perry to testify, then she would call Lisa as a rebuttal witness. Defense counsel initially objected, citing spousal privilege. Defense counsel stated:
I don't know that she's been advised that she holds the spousal privilege and is in a position to waive it. She may have made an incriminating statement to Trooper Yeager at the time he came to her house. . . . I would request that she be advised on her spousal privilege and also her Fifth Amendment protection.
The trial court responded, " I'm going to need some authority from you before I do that."
Following the prosecution's case-in-chief, defense counsel stated:
I'd like to resolve the witness issue. My office tells me that the wife has to claim but she can't if she's a victim. I don't believe she's a victim in this case so the wife would have to claim the privilege. Whether she waives it or not would be up to her. We would ask that you order the compromise. Ms. Kathryn Perry can testify during our presentation and Ms. -- Mrs. Allen can testify on rebuttal.
The trial court accepted the parties' compromise and permitted Perry and Lisa to testify. The issues of spousal immunity and the Fifth Amendment were not revisited.
Perry testified that she owned the trailer on 6123 Clarksville Road. She testified that she and defendant had an agreement that he was to make sure no one broke into the trailer. Defendant did not pay rent to live there. Perry testified that she visited once a month to check on the residence and make sure it was being maintained. Perry visited the trailer on March 15, [310 Mich.App. 335] 2013, for this purpose. Perry testified that she did not expect defendant to be there when she visited because " [m]ost of the time he wasn't there." On March 15, it did not appear to Perry that defendant had vacated the property. She testified that the temperature was normal; she and defendant agreed that he would turn down the heat to 55 degrees any time he left the trailer. Perry further testified that defendant did not have many personal belongings, but the belongings he did have were there when she visited.
After Perry's testimony, the prosecutor called Lisa as a rebuttal witness. Lisa testified that she lived at 211 West Riverside Drive. When Yeager came to her house in March 2013, defendant " was staying there. He wasn't living there." Lisa testified that defendant had been there for about six months. Defendant kept some clothes at her house and slept on a mattress on the living room floor. Lisa testified that defendant did not stay there every day; he was there approximately five days a week. Finally, Lisa ...