The required content of an information is mandated by statute. MCL 767.45(1) requires that an information contain: (1) the nature of the offense, stated in language that will fairly apprise the accused and the court of the offense charged; (2) the time of the offense as near as possible; and (3) the location of the offense. MCR 6.112(D).
Except where time is of the essence of the offense, an error in the time stated is not fatal to the information. MCL 767.45(1)(b). Additionally, “‘an imprecise time allegation [in a felony information may] be acceptable for sexual offenses involving children, given their difficulty in recalling precise dates.’” People v Bailey, 310 Mich App 703, 717 (2015), quoting People v Naugle, 152 Mich App 227, 234 n 1 (1986) (internal citation omitted). A felony information “alleg[ing] sexual misconduct [against children] over a period of eight years” gave adequate notice where two of the victims “were 13 years old or younger at the time of the alleged offenses, and each testified that [the] defendant abused them numerous times over multiple years, such that specific dates would not stick out in their minds.” Bailey, 310 Mich App at 717 (quoting Naugle, 152 Mich App at 235, and noting that “because [the] defendant was living with his victims over an extended period of time and the victims alleged that [the] defendant abused them at times when no one else was around, ‘it appears that creating a valid alibi defense was not a realistic option’”).
MCL 767.55 permits allegations in the alternative when an offense “is constituted of 1 or more of several acts, or which may be committed by 1 or more of several means, or with 1 or more of several intents, or which may produce 1 or more of several results . . . .”
Unless a proposed amendment would unfairly surprise or prejudice the defendant, an amendment to the information is permitted either before, during, or after trial. MCR 6.112(H). “A defendant may establish unfair surprise by articulating how additional time to prepare would have benefited the defense.” People v Perry, 317 Mich App 589, 594 (2016), citing People v McGee, 258 Mich App 683, 693 (2003).
Indeed, “a prosecutor may amend a charge, even where it results in a higher charge being brought, absent unfair surprise or prejudice.” People v VanEss, ___ Mich App ___, ___ (2024). In VanEss, the defendant “appeared before a non-attorney magistrate in district court to be arraigned on a charge of operating while intoxicated, high blood alcohol content (‘OWI, high BAC’) and offered to plead guilty as charged.” Id. at ___. “But the district court magistrate concluded that she lacked the authority to take defendant’s guilty plea.” Id. at ___. “Thus, defendant never said she was ‘guilty’ of the charge.” Id. at ___. “The magistrate put the matter down for a plea and sentencing before the district court judge.” Id. at ___. However, “before defendant could plead in front of the district court judge, the prosecutor discovered, after taking a closer look, that there was more to the story, thus resulting in a felony charge replacing the original misdemeanor charge.” Id. at ___.
The VanEss Court held that “(1) while there was an offer of a plea by defendant, no plea was actually taken, (2) the magistrate did not have the authority to take a plea that was binding on the district court judge, and (3) because the district court judge had not yet taken a plea and sentenced defendant, defendant’s mere offer to plead guilty was not sufficient for jeopardy to have attached before the prosecutor took action to replace the original misdemeanor charge with the felony charge of OWI, high BAC, third offense (OWI 3rd), a felony with a maximum penalty of a $5,000 fine and five years’ imprisonment.” Id. at ___ (rejecting defendant’s argument that “the magistrate did have the authority to take her plea and, had the plea been taken, the prosecutor would have been precluded from changing the charge from the misdemeanor to the felony”). Id. at ___. The Court determined that “the only potential ‘prejudice’ defendant might be able to claim would be that the magistrate’s failure to take defendant’s guilty plea provided the prosecution an opportunity to discover its oversight and correct the error and proceed with the correct charge.” Id. at ___. Even if prejudice did result from the failed attempt to plead guilty before the prosecutor discovered its charging mistake, the defendant’s claim would fail “as it is not supported by the timeline of events . . . .” Id. at ___ (noting that the prosecutor’s motion to amend the complaint to reflect the felony charge instead of the misdemeanor was filed one week after the arraignment and over two weeks before the plea and sentencing).
Where the prosecution seeks to amend the information to add a criminal charge based on facts or evidence disclosed at the defendant’s preliminary examination, a defendant is not unfairly surprised or prejudiced. People v Fortson, 202 Mich App 13, 16 (1993).
When a defendant is bound over on any charge cognizable in circuit court following a preliminary examination, the circuit court obtains jurisdiction over the defendant and may permit amendment of the information “to correct a variance between the information and the proofs” as long as the amendment does not unduly prejudice the defendant because of unfair surprise, inadequate notice, or insufficient opportunity to defend. People v Unger, 278 Mich App 210, 221-222 (2008) (amendment of the information to reinstate a previous charge did not unfairly surprise the defendant or deprive him of sufficient notice or opportunity to defend against the charge at trial). See also People v Russell, 266 Mich App 307, 316-317 (2005) (the defendant was not unfairly surprised or deprived of adequate time to prepare a defense against a charge when the charge added to the amended information was a charge presented at the defendant’s preliminary examination that had been struck from the information in an earlier amendment).
Defendant failed to show that the trial court’s decision to grant the prosecutor’s request to amend the information to remove a codefendant amounted to unfair surprise or prejudice because the “removal of the codefendant did not alter the defense that defendant advanced at trial.” People v Muhammad, 326 Mich App 40, 70 (2018). Additionally, when “the initial information put defendant on notice that the prosecution intended to seek a fourth-offense habitual offender enhancement,” later amendments to the information notifying defendant that the “enhancement would result in a mandatory minimum 25-year sentence,” and “add[ing] a fourth previous conviction . . . did not amount to unfair surprise in that the trial court could have inferred that defendant was aware of his own criminal record.” Id.
Where “[the] defendant knew of the prosecution’s intent to amend the charges [to add an additional charge] . . . before trial started, he [did] not demonstrate[] that the amendment during the trial itself denied him the opportunity to cross-examine the witnesses on the new charge.” Perry, 317 Mich App at 595. Additionally, the timing of the prosecutor’s decision to request the addition of the new charge was “not evidence of presumptive vindictiveness[]” where the record was devoid of any indication that “the prosecution deliberately penalized [the] defendant for exercising his right to a trial.” Id. at 596, citing People v Jones, 252 Mich App 1, 8 (2002).
The trial court’s decision to grant or deny a motion to amend an information is reviewed for an abuse of discretion. Perry, 317 Mich App at 594; McGee, 258 Mich App at 686-687. Any error in amending an information is waived by a party’s failure to object to the amendment. People v Bettistea, 173 Mich App 106, 120 (1988).
MCR 6.120 governs joinder and severance for a single defendant. The prosecuting attorney may file an information or indictment that charges a single defendant with any two or more offenses. MCR 6.120(A). Additionally, two or more informations or indictments against a single defendant may be consolidated for a single trial. Id.
When appropriate to promote fairness to the parties and a fair determination of the defendant’s guilt or innocence of each offense, the court may—on its own initiative, the motion of a party, or the stipulation of all parties—join offenses charged in two or more informations or indictments against a single defendant, or sever offenses charged in a single information or indictment against a single defendant. MCR 6.120(B).
Joinder is appropriate if the offenses are related, i.e., they are based on the same conduct or transaction; a series of connected acts; or a series of acts constituting parts of a single scheme or plan. MCR 6.120(B)(1). See People v Williams, 483 Mich 226, 233 n 5 (2009).1 In Williams, 483 Mich at 228-229, the defendant was convicted of two drug charges, stemming from two separate arrests. The Court determined that “the offenses charged were related because the evidence indicated that [the] defendant engaged in ongoing acts constituting parts of his overall scheme or plan to package cocaine for distribution,” and therefore joinder was appropriate. Id. at 235. See also People v Campbell, 316 Mich App 279, 294 (2016), overruled on other grounds by People v Arnold, 502 Mich 438 (2018)2 (holding that the trial court did not abuse its discretion or deny the defendant his due process right to a fair trial when it refused to bifurcate the proceedings or hold separate trials as to whether he both committed indecent exposure and was a sexually delinquent person; “[g]iven the substantial overlap in the evidence and that the trial court could adequately protect [the defendant’s] rights with a limiting instruction concerning the evidence that was admissible only to prove that [he] was a sexually delinquent person, . . . the trial court’s decision to hold a single trial was within the range of reasonable and principled outcomes”); People v Gaines, 306 Mich App 289, 305 (2014) (cases involving three different victims were “related” for purposes of MCR 6.120(B)(1) and were properly joined for trial where “[the] defendant engaged in ongoing acts related to his scheme of preying upon young, teenage girls from his high school[;] . . . used text messages to communicate with [them] and encouraged them to keep their communications secret[;] . . . requested naked photographs from [at least two of them] and, if they refused, threatened to cut off ties with them[; and] . . . used his parents’ basement to isolate two of the young girls and sexually penetrate them”).
“Joinder of offenses under MCR 6.120 is appropriate if the offenses are related”—“offenses are related if they comprise either the same conduct or a series of connected acts or acts constituting part of a single scheme or plan.” People v Wisniewski, ___ Mich App ___, ___ (2025) (cleaned up). In Wisniewski, defendant was charged with four counts of first-degree criminal sexual conduct (CSC-I) and two counts of second-degree criminal sexual conduct (CSC-II) for his conduct involving four young girls. Id. at ___. After he was convicted on five of the six counts, defendant argued on appeal that “he was deprived of his rights to due process or a fair trial because there should have been severance of the multiple counts of CSC-I and CSC-II pursuant to MCR 6.120.” Wisniewski, ___ Mich App at ___. However, “[a]ll six of the CSC charges that were joined at trial were closely related to each other” “to the extent that they involved a series of connected acts amounting to parts of a single scheme or plan.” Id. at ___. “Defendant’s specific method of sexually abusing [two of the] girls . . . was similar, in that he would, while being in close physical proximity to them, put his hands in their pants and touch their genitals,” and “the common themes underlying defendant’s scheme and plan to sexually exploit them were almost identical with each of the victims.” Id. at ___ (noting that the sexual abuse “began when the girls were very young” and “exploited personal relationships of trust”). “[W]ith this pattern of behavior, defendant fail[ed] to demonstrate . . . that the four counts of CSC-I and two counts of CSC-II should not have been joined at trial.” Id. at ___ (rejecting defendant’s argument that “the volume of evidence leading to his convictions,” including “the number of complainants who testified against him, and the number of counts joined at trial[,] combined to rise to a level of extreme prejudice requiring a new trial”). “Because there was not any impermissible misjoinder under MCR 6.120, defendant also [was] unable to establish a constitutional violation, either in the way of the deprivation of his right to a fair trial, or a violation of due process.” Wisniewski, ___ Mich App at ___. “A misjoinder may be deemed harmless only if all or substantially all of the evidence of one offense would be admissible in a separate trial of the other.” Id. at ___ (cleaned up). “[W]hile the appropriate standard of review [was] for plain error, rather than for harmless error under MCL 769.26, even if defendant’s multiple charges had been severed and tried at multiple trials, the prosecution could have introduced the other-acts evidence under MRE 404(b) or MCL 768.27a at each of his hypothetical trials.”3 Wisniewski, ___ Mich App at ___ (concluding that “defendant was not deprived of his rights to due process or a fair trial as severance of the multiple counts of CSC-I and CSC-II was not required under MCR 6.120”).
Other relevant factors to consider include: the timeliness of the motion; the drain on the parties’ resources; the potential for confusion or prejudice stemming from either the number of charges or the complexity or nature of the evidence; the potential for harassment; the convenience of witnesses; and the parties’ readiness for trial. MCR 6.120(B)(2).
On a defendant’s motion, unrelated charges against that defendant must be severed for separate trials. MCR 6.120(C).
MCR 6.121 governs joinder and severance with regard to multiple defendants. An information or indictment may charge two or more defendants with the same offense. MCR 6.121(A). An information or indictment may charge two or more defendants with two or more offenses when each defendant is charged with accountability for each offense or when the offenses are related as set out in MCR 6.120(B). MCR 6.121(A). When more than one offense is alleged, each offense must be stated in a separate count. Id. Two or more informations or indictments against different defendants may be consolidated for a single trial whenever the defendants could be charged in the same information or indictment. Id.
On the defendant’s motion, the court must sever offenses that are not related as set out in MCR 6.120(B). MCR 6.121(B).
On a defendant’s motion, the court must sever the trial of defendants on related offenses on a showing that severance is necessary to avoid prejudice to the substantial rights of a defendant. MCR 6.121(C). “The decision to try two defendants jointly or separately lies within the discretion of the trial court, and that decision will not be overturned absent an abuse of that discretion.” People v Furline, 505 Mich 16, 20 (2020).
“Severance is mandated under MCR 6.121(C) only when a defendant provides the court with a supporting affidavit, or makes an offer of proof, that clearly, affirmatively, and fully demonstrates that his substantial rights will be prejudiced and that severance is the necessary means of rectifying the potential prejudice.” People v Hana, 447 Mich 325, 346 (1994). “The failure to make this showing in the trial court, absent any significant indication on appeal that the requisite prejudice in fact occurred at trial, will preclude reversal of a joinder decision.” Id. at 346-347.
“The affidavit or offer of proof must state ‘facts on which the court might determine whether . . . a joint trial might result in prejudice.’” Furline, 505 Mich at 20, quoting Hana, 447 Mich at 339 (cleaned up). “[S]everance may be warranted when defendants’ mutually exclusive or antagonistic defenses create a serious risk of prejudice.” Furline, 505 Mich at 21 (quotation marks and citation omitted). “[T]he defenses must be irreconcilable and create such great tension that a jury would have to believe one defendant at the expense of the other.” Id. (quotation marks and citation omitted). “Defenses are mutually exclusive . . . if the jury, in order to believe the core of the evidence offered on behalf of one defendant, must disbelieve the core of the evidence offered on behalf of the co-defendant”; “[p]rejudice requiring reversal occurs only when the competing defenses are so antagonistic at their cores that both cannot be believed.” Id. (quotation marks and citations omitted).
The trial court did not err in denying defendant’s motion for severance where defendant’s affidavit consisted of “contextual” statements that were “not relevant to the severance analysis,” or related to prejudice that was “obviated by the prosecutor’s agreement not to offer [the complained of] evidence.” Furline, 505 Mich at 23 (thus, defendant’s affidavit lacked concrete facts that fully supported his claim that the lack of severance resulted in prejudice; the Court further found that no prejudice actually occurred during defendant’s trial).
On the motion of any party, the court may sever the trial of defendants on the ground that severance is appropriate to promote fairness to the parties and a fair determination of the guilt or innocence of one or more of the defendants. MCR 6.121(D). Relevant factors include the timeliness of the motion; the drain on the parties’ resources; the potential for confusion or prejudice stemming from either the number of defendants or the complexity or nature of the evidence; the convenience of the witnesses; and the parties’ readiness for trial. Id. “Inconsistency of defenses is not enough to mandate severance; rather, the defenses must be ‘mutually exclusive’ or ‘irreconcilable.’” Hana, 447 Mich at 349. “‘[I]ncidental spillover prejudice, which is almost inevitable in a multi-defendant trial, does not suffice.’” Id. at 349, quoting United States v Yefsky, 994 F2d 885, 896 (CA 1, 1993). “The ‘tension between defenses must be so great that a jury would have to believe one defendant at the expense of the other.’” Hana, 447 Mich at 349, quoting Yefsky, 994 F2d at 897.
3.Standard of Review
“To determine whether joinder is permissible, a trial court must first find the relevant facts and then must decide whether those facts constitute ‘related’ offenses for which joinder is appropriate.” People v Williams, 483 Mich 226, 231 (2009). Therefore, a trial court’s decision regarding joinder “is subject to both a clear error and a de novo standard of review.” Id.
A trial court properly amends an information under MCR 6.112(H) “when a prosecutor decides to reinstate a charge that was dismissed without prejudice pursuant to an order of nolle prosequi.” People v Warner, 339 Mich App 125, 135 (2021), rev’d on other grounds by People v Warner, ___ Mich ___, ___ (2024) (denying leave to appeal as to this issue).4 The Warner Court concluded “that the language of MCL 767.29 and MCR 6.112(H) do not conflict”; “MCL 767.29 merely requires that before a nolle prosequi is authorized, a prosecutor must state his or her ‘reasons for the discontinuance or abandonment’ of an indictment on the record and obtain permission for the dismissal from the court that has jurisdiction to try the offenses charged.” Warner, 339 Mich App at 136 (“the statute does not speak to the procedure that is required when a prosecutor wishes to reinstate a charge that was voluntarily dismissed without prejudice”). In Warner, the trial court entered the prosecutor’s proposed nolle prosequi order of dismissal of a CSC-I charge that remained pending following defendant’s jury conviction for CSC-II. On appeal, defendant’s CSC-II conviction was reversed and remanded for a new trial, following which “the prosecutor moved the trial court to amend the information to include the charge of CSC-I pursuant to MCR 6.112(H).” Warner, 339 Mich App at 133. Under these circumstances, the Warner Court was not persuaded by defendant’s argument that pursuant to MCL 767.29, “after a nolle prosequi is sought and entered, the dismissed charge can only be reinstated through a new indictment in district court, not by amendment.” Warner, 339 Mich App at 134. “Because the amendment did not result in unfair surprise or prejudice to defendant, . . . the trial court properly amended the information under MCR 6.112(H) to reinstate the CSC-I charge.” Warner, 339 Mich App at 141 (cautioning that its “conclusion that the trial court properly amended the information under MCR 6.112(H) [was] based on [a] very specific set of facts” and no authority was presented or found “that would permit amendment of an information under MCR 6.112(H) after all charges have been dismissed and the trial court is divested of jurisdiction”).
“A trial court’s decision to grant or deny a motion to amend an information is reviewed for an abuse of discretion.” People v McGee, 258 Mich App 683, 686-687 (2003).
F.Notice of Intent to Seek Enhanced Sentence5
MCR 6.112(F) provides:
“Notice of Intent to Seek Enhanced Sentence. A notice of intent to seek an enhanced sentence pursuant to MCL 769.13 must list the prior convictions that may be relied upon for purposes of sentence enhancement. The notice must contain, if applicable, any mandatory minimum sentence required by law as a result of the sentence enhancement. The notice must be filed within 21 days after the defendant’s arraignment on the information charging the underlying offense or, if arraignment is waived or eliminated as allowed under MCR 6.113(E),[6] within 21 days after the filing of the information charging the underlying offense.”
Before, during, or after trial, the court may permit the prosecutor to amend the notice of intent to seek an enhanced sentence “unless the proposed amendment would unfairly surprise or prejudice the defendant.” MCR 6.112(H).
Where “the prosecutor failed to file a proof of service of the notice of intent to enhance defendant’s sentence” under MCL 769.13 and MCR 6.112(F), “the error [was] harmless because defendant had actual notice of the prosecutor’s intent to seek an enhanced sentence and defendant was not prejudiced in his ability to respond to the habitual offender notification”; specifically, “defendant had access to the charging documents, he had notice of the charges against him, including the habitual offender enhancement, and he also was informed of the habitual offender enhancement at the preliminary examination.” People v Head, 323 Mich App 526, 544-545 (2018) (holding that the prosecutor’s error did not require resentencing). See also People v Burkett, 337 Mich App 631, 646-647 (2021) (the prosecutor’s failure to file the proof of service was harmless error where the “defendant had actual notice” of the intent to seek an enhanced sentence evidenced by defense counsel’s acknowledgment of receiving the notice of intent at the arraignment, and the defendant’s “ability to respond to the notice was not prejudiced by the prosecution’s failure to file a proof of service,” because he “pleaded guilty at sentencing to being a fourth-offense habitual offender”). A violation of the notice requirement in MCL 769.13(1) does not divest a court of subject-matter jurisdiction to apply a habitual offender sentencing enhancement. People v Adams, ___ Mich ___, ___ (2022).
1 Williams , 483 Mich at 238, overruled People v Tobey, 401 Mich 141 (1977), because Tobey construed MCR 6.120 too narrowly.
2 For more information on the precedential value of an opinion with negative subsequent history, see our note.
3 “The Michigan Rules of Evidence were substantially amended on September 20, 2023, effective January 1, 2024. See 512 Mich lxiii (2023). Our opinion relies on the version of MRE 404(b) in effect at the time of defendant’s trial.” Wisniewski, ___ Mich App at ___ n 5.
4 For more information on the precedential value of an opinion with negative subsequent history, see our note.
5 See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 4, for additional discussion of sentence enhancement based on habitual offender status.
6 “A circuit court may submit to the State Court Administrator pursuant to MCR 8.112(B) a local administrative order that eliminates arraignment for a defendant represented by an attorney, provided other arrangements are made to give the defendant a copy of the information and any notice of intent to seek an enhanced sentence[ pursuant to MCL 769.13], as provided in MCR 6.112(F).” MCR 6.113(E). See SCAO Model Local Administrative Order 26—Elimination of Circuit Court Arraignments.