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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v ANTERIO R. WILLIAMS, Defendant-Appellee.

FOR PUBLICATION January 2, 2001 9:05 a.m. No. 224892 Jackson Circuit Court LC No. 99-096078-FH Updated Copy March 16, 2001

Before: Doctoroff, P.J., and Hoekstra and Markey, JJ. HOEKSTRA, J. The prosecution appeals as of right the trial court's order dismissing the charges of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and thirdoffense habitual offender, MCL 769.11; MSA 28.1083, because the victim, defendant's girlfriend, failed to appear to testify at trial. We reverse and remand. In this case, the victim appeared at the preliminary examination and testified regarding the events that led to this action. The victim stated that after refusing to leave a bar with defendant, she later was beaten severely in the parking lot and sustained a broken nose, a broken jaw, and numerous fractures in various facial bones. The victim testified that she did not see her attacker, but she thought it was defendant because he had wanted her to leave with him and she earlier had observed him waiting outside the bar. incidents of physical abuse by defendant. In addition, the victim described other

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The victim also testified at an evidentiary hearing at which the prosecutor, in accordance with MRE 404(b), moved to admit at trial the victim's testimony regarding two prior incidents where defendant had beaten the victim. The victim discussed the two prior incidents in detail and stated that defendant has an alcohol problem and that they "both need help." During her testimony, the victim stated repeatedly that she did not want defendant prosecuted for the instant offense. Upon conclusion of the hearing, the trial court ruled that the victim could testify at trial regarding one of the prior incidents. On the day of trial, the victim failed to appear to testify, despite being served a subpoena to appear. The prosecutor requested that the trial court grant a continuance and issue a bench warrant for the victim. In the alternative, the prosecutor offered to proceed with the trial using the victim's former testimony at the preliminary examination and evidentiary hearing. Defendant objected to both these suggestions and requested that the trial court dismiss the charges against defendant. After concluding that the victim did not want defendant prosecuted and that the present offense was a private crime rather than a public crime,1 the trial court dismissed the charges. On appeal, the prosecutor claims that the trial court erred in dismissing the charges against defendant. We agree. This case presents yet another instance where a trial court usurped the prosecutor's exclusive authority to decide whom to prosecute. In so doing, the trial court committed a violation of the constitutional separation of powers. See Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683-684; 194 NW2d 693 (1972); People v Williams, 186 Mich App 606, 609-612; 465 NW2d 376 (1990); Const 1963, art 3,

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