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141154 - People v Likine (Selesa)

The People of the State of Michigan,
 
Joel D. McGormley
 
Plaintiff-Appellee,
 
 
(Appeal from Ct of Appeals),
 
 
(Oakland – McDonald, J.)
 
Selesa Arrosieur Likine,
 
David A. Moran
 
Defendant-Appellant.
 

​Plaintiff-Appellee's Brief on Appeal>>

Defendant-Appellant's Brief on Appeal>>
Defendant-Appellant's Reply Brief>>

Prosecuting Attorneys Association of Michigan's Amicus Curiae Brief>>

Michigan Criminal Law Professor's Amicus Curiae Brief>>

Legal Services Association of Michigan's Amicus Curiae Brief>>


Summary

​At issue is whether the defendant in this case, Selesa Likine, should have been allowed to present evidence of her inability to pay when she was tried for failure to pay support for her three children. In her divorce case about three years earlier, the family court had initially ordered Likine to pay $54 per month in child support. But, after Likine’s ex-husband moved for an increase, the court ultimately raised the amount to $1,131 a month, based on the court’s finding that Likine had imputed income of $5,000 per month. The court cited evidence that Likine had purchased a home worth $409,000 and had listed her income on the mortgage applications as $15,000 per month.

In March 2008, Likine was charged with one count of failing to pay child support, a criminal felony. MCL 750.165. According to the evidence at Likine’s trial, she paid no child support in 2006, $488.85 in 2007, and $100 during the first three months of 2008. Likine reported that she had been unemployed since September 2005, after a hospitalization; that she had never earned $5,000 per month and, at most, had earned $19,000 in a year; and that, after January 2006, she was subsisting on Social Security Administration disability payments of $603 per month. Likine also had a history of suffering from schizoaffective disorder and depression.

Before trial, the prosecutor filed a motion to exclude evidence of Likine’s ability to pay, including evidence of her employment status and evidence supporting her claim that her income was less than the amounts used to calculate her support obligations. The prosecutor cited People v Adams, 262 Mich App 89 (2004), in which the Michigan Court of Appeals held that evidence of inability to pay is not a valid defense to the strict liability crime of failing to pay child support. Likine objected that such a ruling would deprive her of any defense to the charge, but the trial court granted the prosecutor’s motion, based on Adams. Likine was convicted as charged of one count of felony non-payment of child support, and she was sentenced to one year probation and restitution in an amount to be determined by the family court.Likine appealed to the Court of Appeals, which affirmed her conviction in a published per curiam opinion. Allowing a defendant who is being criminally prosecuted under MCL 750.165 to raise the issue of inability to pay would amount to an impermissible collateral attack on the family court child-support order, the appellate court said. The Court of Appeals also rejected Likine’s claim of a due process violation, noting that she could have petitioned the family court to modify the support order, or requested a payment plan that would allow her to pay the arrearage, but did not do so. The Court of Appeals was not persuaded by Likine’s argument that she had been denied her constitutional right to present a defense. The panel reviewed the elements of felony non-support, and concluded that “evidence of the inability to pay was not relevant to any fact at issue.” Thus, there was no abuse of discretion in the trial court’s decision not to admit such evidence, and the constitutional right to present a defense was not implicated, the Court of Appeals concluded. Likine appeals.