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Michigan Supreme Court Lansing, Michigan

Opinion
SUPREME COURT PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v TOD KEVIN HOUTHOOFD a/k/a TODD KEVIN HOUTHOOFD, Defendant-Appellee. ____________________________________ PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v TOD KEVIN HOUTHOOFD a/k/a TODD KEVIN HOUTHOOFD, Defendant-Appellant. BEFORE THE ENTIRE BENCH HATHAWAY, J.

Chief Justice:

Justices:

Marilyn Kelly

Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway

FILED JULY 31, 2010 STATE OF MICHIGAN

No. 138959

No. 138969

In this opinion, we address only whether venue was proper in Saginaw County for defendant's trial on charges of solicitation to commit murder and witness intimidation.

We conclude that venue was not proper for either charge because neither crime was committed in Saginaw County. However, because improper venue is not a constitutional structural error, this matter is subject to a harmless error analysis under MCL 769.26. In this case, defendant was not deprived of his due process right to a fair trial before an impartial jury and there has been no miscarriage of justice. Moreover, MCL 600.1645 explicitly provides that no judgment shall be voided solely on the basis of improper venue. Thus, we reverse the Court of Appeals in part and reinstate defendant's

conviction for solicitation to commit murder. In addition, we remand to the Court of Appeals for consideration of whether the trial court failed to articulate substantial and compelling reasons for upwardly departing from the guidelines when imposing defendant's sentences for the solicitation and witness intimidation convictions. With respect to all other issues raised in the applications for leave, we deny leave to appeal.1

In our order granting leave to appeal, we raised an additional issue for the parties to discuss that the trial court and Court of Appeals did not address. We asked the parties to discuss the significance, if any, of defendant's supposed waiver of objection to the joinder of his cases. People v Houthoofd, 485 Mich 858 (2009). The prosecution concedes that defendant did not waive this issue. The Court of Appeals also did not address defendant's argument that the prosecution violated the rule of Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), by failing to provide defendant with the name and report of an undercover officer involved in the investigation of the cases. Brady held that a defendant is entitled to the disclosure of exculpatory evidence and no intentional suppression of information by the people or police investigators if the undisclosed material would have caused a different result at trial. The trial court evaluated defendant's argument and held that the information that defendant claimed was not provided to him did not meet the Brady criteria. We agree with the trial court and do not address this issue further.

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I. FACTS AND PROCEEDINGS The facts and proceedings in this case were accurately summarized by the Court of Appeals: This case stems from three consolidated, lower court cases involving: obtaining a tractor, tiller, and trailer by false pretenses (LC No. 02-021097-FH); intimidating witness [Michigan State Police] Detective Sergeant Michael VanHorn (LC No. 04-024765-FH); and soliciting Michael Dotson to murder Edward Wurtzel, Jr. (LC No. 05-025865-FH). The cases were consolidated by the trial court and tried together in January and February of 2006. In April of 1998, a man identifying himself as Colin Francis called a rental equipment store in Saginaw County. The man indicated that he was interested in renting a tractor and tiller. Wurtzel, a co-owner of the store, spoke to the man over the phone and made arrangements for the rental. Wurtzel testified that a few days later, a man appeared at the store to pick up the tractor and tiller. In order to complete the rental agreement, the man produced a driver's license bearing the name "Colin Francis." The tractor, tiller, and trailer used to haul the equipment were not returned to Wurtzel's store. Wurtzel then discovered that Francis was not the man who had rented the equipment. Francis testified that at the time of the rental, he worked with defendant at a General Motors (GM) plant in Bay City, Michigan and had recently lost his driver's license. Detective VanHorn testified that he discovered evidence related to the tractor case in November of 2001. At the time, the detective was investigating a shooting at the home of Jody Meagher. Someone had fired a round of buckshot directly at Meagher and her husband through their window. Meagher informed the investigators, and later testified, that she was a co-worker of defendant's at GM in Bay City, that defendant had been placed on two periods of disciplinary suspension, and that her department was responsible for imposing the suspensions. The shooting occurred during defendant's second suspension. Meagher also indicated that there was a separate, ongoing investigation of defendant involving acts of violence against another GM employee. Defendant had previously worked at a GM plant in Toledo, Ohio. In 1994, GM supervisor Robert Griffith terminated defendant's employment. Shortly thereafter, Griffith was assaulted at his home. Defendant's employment with GM was subsequently reinstated. In 1997, after defendant began working in Bay City, a pipe bomb exploded at Griffith's home.

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On the night of the shooting at Meagher's home, defendant was arrested for trespassing on GM property. Upon searching defendant's truck for evidence related to the shooting, Detective VanHorn found two driver's licenses belonging to men other than defendant. The licenses bore the names "Colin Francis" and "Dale White." The detective then learned of the "cold" tractor case. While investigating the Griffith case, the Meagher case, and the tractor case, the detective obtained a search warrant for defendant's home and property in Arenac County. Upon executing the warrant, investigators found Wurtzel's tractor and tiller, two pipe bombs, and reading materials entitled, "How to Outfox the Foxes, 297 Secrets the Law and Lawyers Don't Want You to Know," "The Poisoner's Handbook," and "How to Be Your Own Private Detective." The Arenac County prosecutor subsequently charged defendant with receiving and concealing stolen property based on his possession of Wurtzel's equipment and two counts of possessing illegal explosives. Defendant was incarcerated in the Arenac County jail. In December of 2001, Detective Sergeant Wilbur Yancer of the Saginaw County Sheriff's Department became aware of the developments in the tractor case and arranged for an "in-custody lineup" at the Arenac County jail. At the December 6 lineup, Wurtzel picked defendant out as the man who took his equipment. Later that day, Wurtzel identified defendant's truck. On December 10, the Saginaw County prosecutor charged defendant with obtaining Wurtzel's property by false pretenses. The Arenac County prosecutor subsequently dropped the charges against defendant in favor of Saginaw County proceeding with its false pretenses case. Defendant remained in the Arenac County jail until January of 2002. During his time in the Arenac County jail, defendant met Dotson, a fellow prisoner. Dotson testified that two or three days after the December 6 lineup, defendant offered him money to shoot out the windows of a Bay City house and to kill Wurtzel at his rental equipment store in Saginaw County. Over the course of several conversations, defendant gave Dotson the details of his plan and a copy of a police report listing Wurtzel's name and business address. Dotson initially agreed to the plan, although he testified that he never intended to carry it out, and told defendant that a man named Chucky could assist with the Bay City shooting. At some point in December of 2001, or early 2002, Dotson told his girlfriend Sandra Faulman and one of Faulman's relatives about defendant's "murder-for-hire" scheme. In March of 2002, Faulman's relative conveyed the information to Trooper James Moore. Thereafter, Trooper Moore and Detective VanHorn met with Dotson at the Arenac

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County jail, and Dotson agreed to cooperate with their investigation. Upon searching Faulman's home, the officers recovered the police report listing Wurtzel's name and business address. They then arranged for Detective Sergeant William Eberhardt, posing as Chucky, to make contact with defendant. Investigators also arranged for Dotson to talk to defendant over the phone. During Dotson's recorded phone conversation with defendant, they discussed "the shit in Bay City," money that defendant owed Dotson, Chucky, and Wurtzel picking defendant out of a lineup in the tractor case. When Dotson asked if they were going to do anything about Wurtzel, defendant said, "Nah, nah, no, I, I got a real good case. . . . [M]y lawyer will pick [Wurtzel's] fucking wings off." Defendant then stated that he thought the phone might be bugged. Defendant was first tried for obtaining Wurtzel's property by false pretenses in February and March of 2004 in Saginaw County. During the trial, Detective VanHorn, Francis, and Wurtzel, among several others, testified for the prosecution. Defendant testified that he purchased the tractor and tiller in 1999 from Denny VanHaaren at Delta College where Denny was a bricklayer. Defendant presented a receipt from the transaction, and it was undisputed that Wurtzel's trailer was recovered at Delta College. Defendant further testified that he found Francis and White's driver's licenses in the tractor after purchasing it from Denny. The trial ended in a hung jury, and the case was scheduled for retrial on June 29, 2004. Detective VanHorn later testified that during the trial, he saw defendant in the hall and defendant said, "Fuck off VanHorn, fuck off." On June 21, 2004, just eight days before the scheduled retrial, Detective VanHorn received a page from a phone number he did not recognize. The detective testified that he called the number and initiated a conversation, saying, "Somebody paged me from this number." The recipient of the call responded, "Yeah." When the detective then identified himself, the recipient said, "Never mind all that. I want to let you know I saw you in court last week, and I want to let you know that I know where you live, motherfucker." According to the detective, he recognized the recipient's voice almost immediately and believed that it was defendant. The detective also believed that defendant "was letting [him] know that there was no doubt that he was going to kill [him], attempt to kill [him], or harm [his] family," and that "it was just a matter of time." A phone company representative testified that the cell phone used to call Detective VanHorn's pager on June 21 belonged to Brandean Rinness, but Rinness testified that she lost the phone in early June. According to the phone records, the call originated in Bay County and terminated in

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Ogemaw County. The same cell phone was used to call the GM call center, defendant's girlfriend Roberta Haertel, a restaurant located on the same street that Haertel lived on, and another person associated with Haertel. On June 24, 2004, the Saginaw County prosecutor charged defendant with intimidating a witness and obstructing justice, based on the statements made to Detective VanHorn over the phone. Defendant then moved to adjourn the retrial of the tractor case. The prosecution stipulated to the adjournment, indicating that it intended to use the facts of the intimidation case and the solicitation case as evidence of consciousness of guilt in the retrial of the tractor case. In July of 2004, Detective VanHorn received a call on his cell phone. During the call, he heard a male voice that he did not recognize saying over and over, "I know where you live motherfucker." The call originated from a pay phone in Bay County and occurred while defendant was in Saginaw County jail. Detective VanHorn testified that the caller could have been James Franklin, a man he had previously testified against. Defendant's first trial attorney, Matthew Reyes, testified that he had represented Franklin in a number of cases and believed that Franklin could have made the call to Detective VanHorn. At a motion hearing in July of 2005, Reyes testified that he had planned, as a part of his trial strategy in this case, to create a reasonable doubt in the jurors' minds as to the identity of the person who first threatened Detective VanHorn by introducing Franklin as a possible perpetrator. * * * . . . The court then ruled that the [tractor, intimidation, and solicitation] cases would be tried separately. The next day, the court granted Reyes' motion to withdraw and the cases were adjourned. In November of 2004, the prosecution filed a motion for reconsideration and joinder, requesting that [evidence] be admitted in the tractor case and that the tractor and intimidation cases be consolidated for trial. Defendant opposed the motion. In March of 2005, defendant was charged in Saginaw County with solicitation to commit murder. The trial court then ordered, in August of 2005, to consolidate the tractor case, the intimidation case, and the solicitation case for trial, primarily as a matter of judicial economy. The court further indicated that it would reconsider the admission of [evidence]. * * *

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On December 28, 2005, defendant filed an application for emergency leave to appeal in this Court, along with motions for immediate consideration and stay of proceedings. Defendant argued that the trial court erred in consolidating the three lower court cases for trial and denying his motions to exclude the [evidence]. We granted defendant's motion for immediate consideration, but denied his application for leave to appeal and motion for stay. People v Houthoofd, unpublished order of the Court of Appeals, entered December 29, 2005 (Docket No. 267348). The consolidated trial commenced on January 5, 2006, and concluded on February 13, 2006. After the prosecution rested, defendant moved for directed verdict in all three cases, and the trial court denied the motions. The jury convicted defendant of obtaining property by false pretenses, solicitation to commit murder, and witness intimidation involving a threat to kill, injure, or damage property or malicious use of a telephone. Following trial, defendant moved for dismissal, new trial, and judgment notwithstanding the verdict. The trial court subsequently denied the motions. . . . The trial court sentenced defendant to prison terms of five to ten years for the false pretenses conviction, and ten to 15 years for the intimidation conviction. The court exceeded the guidelines for the solicitation to commit murder conviction, sentencing defendant to 40 to 60 years imprisonment. Defendant filed a claim of appeal in [the Court of Appeals] in April of 2006. In August of 2006, defendant filed an untimely motion to remand for an evidentiary hearing. Defendant argued that his trial counsel was ineffective for failing to move to dismiss for improper venue and failing to object to numerous instances of prosecutorial misconduct. He further argued that a previously unknown witness, Detective Eberhardt, could offer potentially exculpatory testimony. [The Court of Appeals] initially denied defendant's motion to remand, People v Houthoofd, unpublished order of the Court of Appeals, entered September 12, 2007 (Docket No. 269505), but later granted his motion for reconsideration and remanded "to the trial court so that defendant-appellant [could] file, within 14 days, a motion for new trial," People v Houthoofd, unpublished order of the Court of Appeals, entered October 16, 2007 (Docket No. 269505). On remand, defendant moved for dismissal and new trial. The trial court held hearings on defendant's motion in November of 2007 and 7

January of 2008. On April 9, 2008, the trial court issued a lengthy written opinion and order denying defendant's motion for new trial. The court found that defendant's motion for dismissal exceeded the scope of the remand order.[2] Defendant appealed as of right to the Court of Appeals alleging that venue was improper, the trial court committed evidentiary errors, and there was prosecutorial misconduct. In an unpublished per curiam opinion, the Court of Appeals vacated

defendant's conviction for solicitation to commit murder on the basis of improper venue. The Court affirmed defendant's remaining convictions and sentences. Defendant and the prosecution, in separate applications, have applied for leave to appeal in this Court. We granted leave to appeal on both applications and asked the parties to include among the issues to be briefed: whether venue was properly laid in Saginaw County with respect to the defendant's solicitation to commit murder and witness intimidation charges, whether the defendant is entitled to retrial on the false pretenses and witness intimidation charges in the event that his conviction for solicitation to commit murder is not reinstated, and the relevance, if any, of the defendant's statement to the trial court, over his counsel's objection, that he wanted the cases tried together.[3] In this opinion, we address only whether venue was proper in Saginaw County for trial on the charges of solicitation to commit murder and witness intimidation.

People v Houthoofd, unpublished opinion per curiam of the Court of Appeals, issued February 3, 2009 (Docket No. 269505).
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2

People v Houthoofd, 485 Mich 858 (2009).

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II. STANDARD OF REVIEW A trial court's determination regarding the existence of venue in a criminal prosecution is reviewed de novo.4 This case also presents issues of statutory

interpretation, which are reviewed de novo.5 III. ANALYSIS The general venue rule is that defendants should be tried in the county where the crime was committed.6 "[E]xcept as the legislature for the furtherance of justice has otherwise provided reasonably and within the requirements of due process, the trial should be by a jury of the county or city where the offense was committed."7 Defendant argues that Saginaw County was not the proper venue for prosecution of the charges of witness intimidation and solicitation to commit murder because all the acts done in perpetration of those offenses occurred in other counties. The prosecution argues that venue was proper in Saginaw County for both charges. The parties and the Court of Appeals assume that MCL 762.8, rather than the general venue rule, is the applicable rule in this case. MCL 762.8 provides: Whenever a felony consists or is the culmination of 2 or more acts done in the perpetration thereof, said felony may be prosecuted in any county in which any one of said acts was committed.
4 5

People v Fisher, 220 Mich App 133, 145; 559 NW2d 318 (1996).

In re Investigation of March 1999 Riots in East Lansing, 463 Mich 378, 383; 617 NW2d 310 (2000).
6 7

People v Jendrzejewski, 455 Mich 495, 499; 566 NW2d 530 (1997). People v Lee, 334 Mich 217, 226; 54 NW2d 305 (1952).

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Applying MCL 762.8, the Court of Appeals concluded that venue was properly established in Saginaw County as to the intimidation charge, but not the solicitation charge. Thus, we must examine MCL 762.8 to determine whether venue was proper in Saginaw County as the prosecution alleges. In interpreting statutes, we follow

established rules of statutory construction. Assuming that the Legislature has acted within its constitutional authority, the purpose of statutory construction is to discern and give effect to the intent of the Legislature.8 Accordingly, the Court must interpret the language of a statute in a manner which is consistent with the legislative intent.9 In determining the legislative intent, we must first look to the actual language of the statute.10 As far as possible, effect should be given to every phrase, clause, and word in the statute.11 Moreover, the statutory language must be read and understood in its

grammatical context.12 When considering the correct interpretation, a statute must be read as a whole.13 Individual words and phrases, while important, should be read in the

Potter v McLeary, 484 Mich 397, 411; 774 NW2d 1 (2009), quoting Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).
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8

Potter, 484 Mich at 411. Id. at 410. Sun Valley, 460 Mich at 237. Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570 (2008). Sun Valley, 460 Mich at 237.

10 11 12 13

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context of the entire legislative scheme.14 In defining particular words within a statute, we must consider both the plain meaning of the critical word or phrase as well as its placement and purpose in the statutory scheme.15 In People v Flaherty16 and People v Fisher,17 the Court of Appeals interpreted MCL 762.8 broadly and ruled that when an act done in perpetration of a felony has effects elsewhere that are essential to the offense, venue is proper in the place where the act has its effects. In the present case, the Court of Appeals summarized the facts and holdings in Flaherty and Fisher: In Flaherty, the defendant was charged in St. Clair County with larceny by false pretenses. Flaherty, supra at 116, 119. The defendant owned an insurance agency located in Macomb County, and defrauded a general insurance agency located in St. Clair County by accepting payment for an insurance policy that was never issued. Id. at 117, 119. The larceny was accomplished through a series of mail and telephone communications across county lines. Id. at 119. The Flaherty Court found that some of the defendant's "communication `acts'" had effects in St. Clair County. Id. Specifically, the defendant's acts of placing a cover note and invoice in the mail and sending it to St. Clair County induced the general agency to authorize an invoice and mail payment to the defendant. Id. Noting that "detrimental reliance by the victim on the [defendant's] false representation" is an essential element of larceny by false pretenses, the Flaherty Court concluded that although the defendant was physically present in Macomb County, the "effective false representation occurred in St. Clair County." Id. Thus, venue was properly established in St. Clair County. Id.
14 15

Herman, 481 Mich at 366.

Id., quoting Sun Valley, 480 Mich at 237, quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133 L Ed 2d 472 (1995).
16 17

People v Flaherty, 165 Mich App 113; 418 NW2d 695 (1987). People v Fisher, 220 Mich App 133; 559 NW2d 318 (1996).

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In Fisher, the defendant was charged in Wayne County with inciting perjury and attempted obstruction of justice. Fisher, supra at 135. The defendant had previously been convicted in Wayne County of murdering his wife and, pending an appeal of that conviction, was imprisoned in Jackson County. Id. at 135-136. While in prison, the defendant asked a prison mate to swear to a false affidavit and claim that he, not the defendant, had committed the crime for which the defendant had been convicted. Id. The Fisher Court noted that the defendant's acts were intended to affect the proceedings pending in Wayne County and that the charge of attempted obstruction of justice required proof that defendant committed an act with the intent "to hinder the due course of justice in the case pending in Wayne County." Id. at 149, 152. See People v Milstead, 250 Mich App 391, 405; 648 NW2d 648 (2002) (stating that obstruction of justice is generally defined as "an interference with the orderly administration of justice," "impeding or obstructing those who seek justice in a court, or those who have duties or powers of administering justice therein," or an "effort . . . to thwart or impede the administration of justice"). After examining federal case law holding that in obstruction of justice cases, "venue is proper in the district where the proceeding affected is pending," other states' decisions regarding offenses such as tampering with a witness, and this Court's reasoning in Flaherty, the Fisher Court concluded that, while MCL 762.8 does not use the words "effects" or "results," an "act that has effects elsewhere that are essential to the offense is, in effect, committed in the place where the act has its effects," and therefore that venue was properly established in Wayne County as to the attempted obstruction of justice charge. Fisher, supra at 146-150, 152. The defendant conceded that if Wayne County was the proper venue for prosecution of the attempted obstruction of justice charge, it was also the proper venue for the inciting perjury charge because both charges arose out of the same transaction.[18] In People v Webbs,19 the Court of Appeals narrowed the holdings of Flaherty and Fisher and stated that "the plain language of MCL 762.8 requires an act to be done in the

People v Houthoofd, unpublished opinion per curiam of the Court of Appeals, issued February 3, 2009 (Docket No. 269505).
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18

People v Webbs, 263 Mich App 531; 689 NW2d 163 (2004).

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perpetration of the felony without regard to where the effects of the crime are felt . . . ."20 In Webbs, the defendant was charged in Grand Traverse County with larceny by false pretenses; however, all of the acts done in perpetration of the offense took place in Wayne County.21 The defendant falsely identified himself as James Hardy and applied for and received a loan in Wayne County. Hardy, a resident of Grand Traverse County, claimed that the defendant's acts affected him in his home county where he had to deal with the effects of the identity theft. The Webbs court ruled that the statute mandates that the crime be prosecuted in the county where the acts to perpetrate the felony were committed. The Court reasoned that since none of the acts were committed in Grand Traverse County, venue was not proper in that county. Webbs criticized the "effects" analysis of Flaherty and Fisher, commenting that the holding that venue is proper where the effects of the acts committed are felt does not comport with the plain language of the statute. We agree with the Webbs analysis of MCL 762.8, and overrule the "effects" analysis of Flaherty and Fisher. MCL 762.8 is unambiguous and clearly provides that when a felony consists of two or more acts, venue for prosecution of the felony is proper in any county in which any one of the acts was committed. The statute does not contemplate venue for prosecution in places where the effects of the act are felt, and we

20 21

Id. at 534. Id. at 532.

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decline to extend the application of MCL 762.8 beyond the scope provided for in the statute. Although the Court of Appeals decided this case under MCL 762.8, neither felony at issue here "consists or is the culmination of two or more acts . . . ." The crime of solicitation to commit murder requires the act of offering to give, promising to give, or giving anything of value in exchange for murder. MCL 750.157b.22 The crime of witness intimidation, as it applies to the facts of this case, requires the act of discouraging or attempting to discourage an individual from testifying at a present or future official proceeding.23 Nonetheless, our holding concerning the MCL 762.8 caselaw applies

22

The solicitation to commit murder statute, MCL 750.157b, provides in relevant

part: (1) For purposes of this section, "solicit" means to offer to give, promise to give, or give any money, services, or anything of value, or to forgive or promise to forgive a debt or obligation. (2) A person who solicits another person to commit murder, or who solicits another person to do or omit to do an act which if completed would constitute murder, is guilty of a felony punishable by imprisonment for life or any term of years.
23

The witness intimidation statute, MCL 750.122, provides in relevant part:

(3) A person shall not do any of the following by threat or intimidation: (a) Discourage or attempt to discourage any individual from attending a present or future official proceeding as a witness, testifying at a present or future official proceeding, or giving information at a present or future official proceeding.

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equally here: it is the act that constitutes the felony--rather than its effects--that gives rise to venue. Defendant committed the crime of witness intimidation when he threatened to harm Detective VanHorn or his family if VanHorn testified at defendant's trial. VanHorn testified that on June 21, 2004, as he was leaving his Michigan State Police post in Ogemaw County, he received a page from a number he did not recognize. He used his state-issued cell phone to return the call. The person who answered, whom VanHorn recognized as defendant, made a threatening statement. Phone records obtained to

investigate the threatening phone call revealed that the call was made from a cell phone. A representative from the cell phone company testified that the particular call originated in Bay County and terminated in Ogemaw County. The representative also testified that

(b) Influence or attempt to influence testimony at a present or future official proceeding. (c) Encourage or attempt to encourage any individual to avoid legal process, to withhold testimony, or to testify falsely in a present or future official proceeding. * * * (7) A person who violates this section is guilty of a crime as follows: * * * (c) If the violation involves committing or attempting to commit a crime or a threat to kill or injure any person or to cause property damage, the person is guilty of a felony punishable by imprisonment for not more than 15 years or a fine of not more than $25,000.00, or both.

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none of the calls she had been asked about originated or terminated in Saginaw County. Thus, the trial testimony established that VanHorn was in Ogemaw County and defendant was in Bay County when defendant threatened VanHorn. Neither defendant nor

VanHorn was in Saginaw County when defendant, "by threat or intimidation," "[d]iscourage[d] or attempt[ed] to discourage" VanHorn from testifying at defendant's trial. MCL 750.122(3)(a). Defendant did not commit the act necessary to complete the crime of witness intimidation, threatening the detective, in Saginaw County. As

established by the phone records, the act could be said to have been committed in Bay County, where the call was placed, or Ogemaw County, where the call was received, but not in Saginaw County. Accordingly, venue was improper in Saginaw County. As for the solicitation charge, the evidence establishes that defendant solicited a fellow jail inmate, Dotson, to murder Wurtzel, a witness in the false pretenses case against him. The offer and promise to give money in exchange for the murder occurred while both defendant and Dotson were in the Arenac County jail. Thus, the act required for the crime of solicitation to commit murder, the offer or promise to give something of value for murder, occurred in Arenac County, and venue for the charge of that crime was not proper in Saginaw County. Because venue was not proper in Saginaw County for the charge of either witness intimidation or solicitation to commit murder, we next consider whether statutory venue error in criminal prosecutions is subject to a harmless error analysis under MCL 769.26. MCL 769.26 provides:

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No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice. In analyzing the application of MCL 769.26, this Court has held that, for preserved nonconstitutional errors, the defendant has the burden of establishing a miscarriage of justice under a "more probable than not" standard in order to justify reversing a conviction.24 An error is outcome-determinative if it undermines the reliability of the verdict.25 For preserved constitutional errors, if the error is not a structural defect that defies harmless error analysis, the reviewing court must determine whether the beneficiary of the error has established that it is harmless beyond a reasonable doubt.26 A structural error, however, is a fundamental constitutional error that defies a harmless error analysis.27 In this case, defendant preserved the venue error. In order to apply the harmless error analysis of MCL 769.26, we must first examine whether statutory venue error is a

24 25 26 27

People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999). People v Whittaker, 465 Mich 422, 427; 635 NW2d 687 (2001). People v Anderson (After Remand), 446 Mich 392; 521 NW2d 538 (1994). People v Miller, 482 Mich 540, 556; 759 NW2d 850 (2008).

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constitutional error in order to determine the applicable standard of review. In People v Lee28 this Court recognized that "[i]n the absence of any limitation by constitutional provision, it seems to be generally recognized that the power of a State legislature to fix the venue of criminal prosecutions in a county or district other than that in which the crime was committed is unrestricted."29 The Lee Court was evaluating the

constitutionality of MCL 762.8, and concluded that the statute was constitutional because the defendant's constitutional right to a speedy trial by an impartial jury was maintained. The Court noted that there was no explicit venue mandate in the Michigan Constitution of 1908. In contrast, Michigan's prior constitution, the Michigan Constitution of 1835, did contain such a provision in article 1,

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