COA 366968 PEOPLE OF MI V HOLLY CHRISTINE ALEXANDER Opinion - Per Curiam - Unpublished 12/26/2025

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
UNPUBLISHED
December 26, 2025
12:25 PM
v No. 366968
Allegan Circuit Court
HOLLY CHRISTINE ALEXANDER, LC No. 2022-025589-FH
Defendant-Appellant.
Before: GARRETT, P.J., and RICK and MARIANI, JJ.
PER CURIAM.
Defendant appeals by right her jury-trial conviction of domestic violence, MCL 750.81(2),
for which she was sentenced to serve one day in jail and nine months’ probation.1 We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant and the victim dated for approximately two years, during which time they lived
together and were engaged to be married, but the couple eventually broke up. In July 2022,
defendant was at a gas station with her daughter when she ran into the victim. The two had an
unpleasant exchange before parting ways. Immediately after the encounter, defendant and the
victim both separately drove to a friend’s house. According to defendant, she was bringing her
daughter to visit her friend’s daughter and did not know that the victim would be there as well.
Upon her arrival, defendant parked behind the victim’s car and approached him in the
garage. According to defendant, the victim proceeded to yell at her, and then put his hand on her
shoulder as she turned to leave. Defendant testified that she told the victim to leave her alone and
1 Defendant was acquitted of possession of a taser, MCL 750.224a, and assault with a dangerous
weapon, MCL 650.82. For the sake of simplicity and consistency with the record in this case, we
use “taser” throughout this opinion as shorthand for a device subject to MCL 750.224a’s
prohibitions.

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not to touch her or else she would “zap” him with a device that she kept in her purse.2 According
to the victim, defendant already had the device in her hand as she approached him and held it close
to his head as she threatened to use it. The victim testified that he grabbed defendant’s arm to
prevent her from using the device. The parties’ friends came out of the house, there was more
yelling, and eventually defendant left. The victim then called the police and filed a police report.
Relevant to this appeal, a res gestae witness endorsed by the prosecution failed to appear
at trial. Defendant requested a missing-witness jury instruction, which the trial court agreed to
grant unless the prosecution demonstrated that it had exercised due diligence to produce the
witness. The prosecution shared that the witness had been personally served the day before trial
and that the witness had called on the morning of trial to tell the prosecution that she intended to
appear but did not have transportation. The prosecution sent officers to collect the witness at her
given address during the trial’s lunch recess, but the officers could not find her. After looking
around the neighborhood for the witness, the officers returned to court without her. Based on this,
the trial court found that the prosecution had exercised due diligence and denied defendant’s
request to provide a missing-witness instruction to the jury.
Defendant was convicted and sentenced as previously described. This appeal followed.
II. PROSECUTORIAL MISCONDUCT
Defendant first argues that the prosecutor engaged in misconduct during closing arguments
by (1) misstating the law regarding domestic violence and (2) shifting the burden of proof
regarding the nature of the device. We find no error warranting reversal.
“In order to preserve an issue of prosecutorial misconduct, a defendant must
contemporaneously object and request a curative instruction.” People v Bennett, 290 Mich App
465, 475; 802 NW2d 627 (2010). Defendant did not object to the comments of the prosecutor that
she now challenges on appeal; accordingly, her challenge is not preserved and is “reviewed for
plain error affecting substantial rights.” Id. “To avoid forfeiture under the plain error rule, three
requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious,
3) and the plain error affected substantial rights.” People v Carines, 460 Mich 750, 763; 597
NW2d 130 (1999). “The third requirement generally requires a showing of prejudice, i.e., that the
error affected the outcome of the lower court proceedings.” Id. “[O]nce a defendant satisfies these
three requirements, an appellate court must exercise its discretion in deciding whether to reverse.”
Id. “Reversal is warranted only when the plain, forfeited error resulted in the conviction of an
actually innocent defendant or when an error seriously affected the fairness, integrity or public
reputation of judicial proceedings independent of the defendant’s innocence.” Id. (quotation
marks, citation, and alteration omitted).
2 At trial, the victim described the device as a taser; defendant, meanwhile, testified that it was not
a taser but “a flashlight with a shocker on it” that had less shocking power than her “dogs [sic]
shock collar.”

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Defendant’s claim of misconduct focuses on the following comments that the prosecutor
made during closing arguments:
You heard that [the defendant] threatened to use the taser and in fact held it by [the
victim’s] head, the defendant [sic] said he was in fear, that’s an assault, he was in
fear that the taser was going to touch him, that’s the battery part . . . . This fact that
this was [a] novelty item or something, there’s no proof of that, and again it really
doesn’t matter because there was an assault, whether it was a novelty item or real
taser, my—the victim was put in fear of being tased, of being battered, so again the
definition of assault is being put in fear, he was . . . .
* * *
Domestic violence requires one that they had some type of dating relationship, it
fills that element.
The victim also had to be put in fear of a battery. We are back to that assault
and battery. Doesn’t have to be battered, it just has to be put in fear of it. You
heard that he was so they had a dating relationship and he was put in fear, so that
meets the elements of Domestic Violence . . . .
* * *
The defense has shown us nothing that this was not a taser other than the fact that
the defendant admitted it was so for them to come back and say well nobody says,
nobody can prove it’s a taser, well nobody’s proven that it’s not either, but we do
have testimony from the defendant herself saying it’s a taser and she pulled it out
and she was going to use it to defend herself . . . . [C]ommon sense says this was a
weapon, this was a taser, it was meant to scare the victim into thinking there was
going to be imminent battery . . . .
To start, we find no plain error in the prosecutor’s statement of the law regarding domestic
violence. Defendant was convicted of domestic violence under MCL 750.81(2), which, as relevant
here, requires proof of the following elements: “(1) the commission of an assault or an assault and
battery and (2) a dating relationship between the parties.” People v Cameron, 291 Mich App 599,
614; 806 NW2d 371 (2011). A battery is “an intentional, unconsented and harmful or offensive
touching of the person of another, or of something closely connected with the person,” regardless
of “whether the touching caused an injury,” and an assault is “an attempt to commit a battery or
an unlawful act that places another in reasonable apprehension of receiving an immediate battery.”
Id. (quotation marks and citations omitted).
“A prosecutor’s clear misstatement of the law that remains uncorrected may deprive a
defendant of a fair trial.” People v Grayer, 252 Mich App 349, 357; 651 NW2d 818 (2002).
Contrary to defendant’s claim, however, the prosecutor did not misstate the law regarding the
offense of domestic violence. Rather, the prosecutor accurately identified and described both
requisite elements—the existence of a dating relationship and the commission of an assault or
assault and battery—and fairly connected them to the evidence presented at trial. Defendant has

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shown no error or impropriety in this regard. Furthermore, the trial court correctly instructed the
jury on the law regarding this offense, and defendant has failed to explain how those instructions
would have been insufficient to cure any prejudice from this claimed error. See People v Zitka,
335 Mich App 324, 348; 966 NW2d 786 (2020) (“Jurors are presumed to follow their instructions,
and jury instructions are presumed to cure most errors.”) (quotation marks and citation omitted).
We agree with defendant, however, that the prosecutor made comments regarding the
nature of the device that improperly attempted to shift the burden of proof to defendant. As
discussed, defendant, in addition to being charged with domestic violence, was charged with (1)
possession of a taser, MCL 750.224a, and (2) assault with a dangerous weapon, MCL 750.82. As
to possession of a taser, the prosecution was required to prove that defendant possessed “a portable
device or weapon from which an electric current, impulse, wave, or beam may be directed, which
current, impulse, wave, or beam is designed to incapacitate temporarily, injure, or kill.” MCL
750.224a(1). And as to assault with a dangerous weapon, the prosecution was required to prove
that defendant “assault[ed] another person with a gun, revolver, pistol, knife, iron bar, club, brass
knuckles, or other dangerous weapon without intending to commit murder or to inflict great bodily
harm less than murder.” MCL 750.82(1).
As reflected in the prosecutor’s comments to the jury, it was disputed at trial whether the
device defendant had in her possession was, in fact, a taser. And as the above authority makes
clear, it was the prosecution’s burden to prove that the nature of the device met the requisite criteria
of the charged offenses. The prosecutor, however, suggested otherwise in stating to the jury that
defendant “has shown us nothing that this was not a taser other than the fact that the defendant
admitted it was so for them to come back and say well nobody says, nobody can prove it’s a taser,
well nobody’s proven that it’s not either.” These comments were plainly improper. See People v
Fyda, 288 Mich App 446, 463-464; 793 NW2d 712 (2010) (explaining that “[a] prosecutor may
not imply in closing argument that the defendant must prove something,” nor may “a
prosecutor . . . comment on the defendant’s failure to present evidence”).
Defendant, however, has not shown that this impropriety affected her substantial rights.
See Carines, 460 Mich at 763. Most notably, defendant was acquitted of both offenses that
required proof of the device’s dangerous nature, so any improper shifting of the burden of proof
for those offenses did not ultimately prejudice her. Nor do we see any prejudice that this error
might have had as to the domestic-violence offense. As the prosecutor noted during closing
arguments, whether the device was a taser was not a requisite element of that offense: “it really
doesn’t matter because there was an assault, whether it was a novelty item or real taser . . . .” The
trial court’s instructions to the jury did not suggest otherwise, but instead, as noted, correctly stated
the law as to that offense. And the court’s instructions as to the other offenses made clear that it
was the prosecution’s burden to prove the device’s nature beyond a reasonable doubt. See Zitka,
335 Mich App at 348. Accordingly, we see no grounds for relief as to this claim.3
3 Defendant also cursorily argues that her due-process rights were violated by the prosecutor’s
misconduct. “[T]he crux of the due process analysis in cases of alleged prosecutorial misconduct
is whether the defendant received a fair trial. The remedy when a defendant receives an unfair

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III. MISSING WITNESS
Defendant next argues that she is entitled to a new trial because she was prejudiced by the
prosecution’s failure to exercise due diligence to produce the missing witness discussed above,
and the trial court therefore abused its discretion by refusing to provide the missing-witness
instruction. We agree that the prosecution failed to exercise due diligence and that the court should
have provided the requested missing-witness instruction. Defendant, however, has failed to
demonstrate entitlement to relief for these shortcomings.
“We review a trial court’s determination of due diligence and the appropriateness of a
‘missing witness’ instruction for an abuse of discretion.” People v Eccles, 260 Mich App 379,
389; 677 NW2d 76 (2004). “An abuse of discretion occurs when the trial court’s decision is
outside the range of reasonable and principled outcomes.” People v Craft, 325 Mich App 598,
604; 927 NW2d 708 (2018). “A trial court necessarily abuses its discretion when it commits an
error of law.” People v Butsinas, ___ Mich App ___, ___; ___ NW3d ___ (2025) (Docket No.
364778); slip op at 4.
The prosecution must exercise due diligence to produce witnesses endorsed under MCL
767.40a(3) at trial. Eccles, 260 Mich App at 388. Although “[t]he prosecution no longer has an
affirmative duty to call all res gestae witnesses at trial,” it is nonetheless “obligated to render
‘reasonable assistance’ in locating and serving process upon a witness when requested in writing
by [a] defendant.” Butsinas, ___ Mich App at ___; slip op at 4 (citations omitted). “Due diligence
is the attempt to do everything reasonable, not everything possible, to obtain the presence of a
witness.” People v Brown, ___ Mich App ___, ___; ___ NW3d ___ (2024) (Docket No. 359376);
slip op at 11 (quotation marks, citations, and alteration omitted). This concept of due diligence is
also incorporated into our court rules. For instance, MCR 2.506(C)(1) requires that a witness be
served with a subpoena “at least 2 days before [his or her] appearance” at trial so that the witness
is “sufficiently [notified] in advance of the trial . . . of the date and time [he or she] is to appear.”
“If the trial court finds a lack of due diligence, the jury should be instructed that it may infer that
the missing witness’s testimony would have been unfavorable to the prosecution’s case.” Brown,
___ Mich App at ___; slip op at 11 (quotation marks and citation omitted).
The prosecution’s failure to exercise due diligence in producing an endorsed witness “does
not result in automatic reversal.” Butsinas, ___ Mich App at ___; slip op at 4. “Rather . . . , the
trial court must [first] determine if [the] defendant was prejudiced by the witness’s absence.” Id.
“As the party asserting error, [the] defendant bears the burden of providing this Court with a record
to verify the factual basis of any argument upon which reversal was predicated.” Id. (quotation
marks and citation omitted). Similarly, a trial court’s failure to provide a requested missing-
witness instruction does not automatically warrant relief; rather, “if an applicable instruction was
not given, the defendant bears the burden of establishing that the trial court’s failure to give the
requested instruction resulted in a miscarriage of justice.” People v Riddle, 467 Mich 116, 124;
trial because of prosecutorial misconduct is a new and, presumably, fair trial.” People v Aceval,
282 Mich App 379, 391; 764 NW2d 285 (2009) (citation omitted). As discussed, the prosecutor’s
comments were either proper or ultimately inconsequential to defendant’s conviction, and
defendant has shown us no basis to conclude that they nonetheless violated her due-process rights.

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649 NW2d 30 (2002). Reversal of a conviction is only warranted if, when weighing the error in
light of the other properly admitted evidence, “it affirmatively appears that it is more probable than
not that the error was outcome determinative.” Id. at 124-125. See also MCL 769.26.
In this case, the missing witness in question was one of the prosecution’s res gestae
witnesses endorsed under MCL 767.40a(3). At the close of proofs, defendant requested that a
missing-witness instruction be provided to the jury, but the trial court denied the request because
it found that the prosecution had exercised due diligence to produce the witness. In support of this
conclusion, the court noted that the prosecution personally served the witness with a subpoena the
day before trial; spoke with her on the morning of trial about her plan to appear; provided her with
transportation via officers sent to her given address at lunch; and reported that the officers looked
around the neighborhood for her when they failed to find her at that address.
The trial court in this case erred by finding that the prosecution exercised due diligence to
produce the missing witness. See Butsinas, ___ Mich App at ___; slip op at 4. As noted, our court
rules expressly required the prosecution to serve the witness with a subpoena to appear at trial “at
least 2 days before” she was set to appear. MCR 2.506(C)(1). The prosecution, however, did not
serve the witness with the subpoena until the day before trial. Thus, the mandate that the witness
be timely served with a subpoena was undisputedly not met here. See MCR 2.506(C)(1). This
failure to comply with a clear and mandatory requirement meant to ensure that a witness receives
adequate notice regarding his or her appearance at a trial plainly constitutes a failure to exercise
due diligence. See also, e.g., People v Pearson, 404 Mich 698, 716-717, 743; 273 NW2d 856
(1979), superseded on other grounds by MCL 767.40a (holding that the prosecution failed to
exercise due diligence to produce an endorsed res gestae witness when it made no attempt to locate
and subpoena the witness until the day before trial); People v Cummings, 171 Mich App 577, 586;
430 NW2d 790 (1988) (holding that the prosecution failed to exercise due diligence to produce an
endorsed witness when it waited until the day before trial to begin its search to locate and subpoena
the witness).
Accordingly, the trial court clearly erred by concluding that the prosecution exercised due
diligence in attempting to secure the attendance of this witness, and in turn by denying defendant’s
request for a missing-witness instruction. Defendant, however, has failed to show entitlement to
relief for these errors. To start, defendant has not satisfied her burden of showing that she was
prejudiced by the prosecution’s failure to produce the witness. See Butsinas, ___ Mich App at
___; slip op at 4. When requesting the missing-witness instruction at trial, defendant asserted that
the witness “was a critical witness to [the] defense,” but did not elaborate any further. Defendant
did not offer anything more about the witness or her potential testimony, nor did she explain why
the witness’s testimony was “critical” to her defense or how exactly she was prejudiced by the
witness’s absence. Nor has defendant done so on appeal. The evidence presented at trial likewise
shed no meaningful light on what this witness’s testimony would add or why it might be “critical”
for defendant. We are instead left to speculate about what the witness’s testimony might have
been, with no idea of how the absence of this testimony might have been harmful to defendant.
Defendant was obligated to establish the factual predicate of her claim of error, including any
prejudice from the witness’s absence, and she has failed to do so. See id.
Defendant has similarly failed to show reversible error in the trial court’s refusal to provide
the missing-witness instruction to the jury. See Riddle, 467 Mich at 124-125; MCL 769.26. The

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witness in question was mentioned at trial only once and in passing, when the victim identified her
as a friend of defendant’s but otherwise provided no indication of what, if any, connection to or
knowledge of the events at issue she might have had. Nor, as noted, does the record provide any
meaningful information or context beyond that. There is thus nothing to suggest that the jury
would have assessed defendant’s guilt any differently had it been instructed that this “witness’s
testimony would have been unfavorable to the prosecution’s case.” Brown, ___ Mich App at ___;
slip op at 11 (quotation marks and citation omitted). This is particularly so given the ample
evidence of defendant’s guilt of domestic violence, the one offense for which she was ultimately
convicted. Indeed, there was no dispute at trial that she and the victim had been in a dating
relationship, and defendant herself admitted that, during the events at issue in this case, she had
threatened to “zap” the victim with the device. See Cameron, 291 Mich App at 614. In light of
this and the other evidence presented at trial, it does not “affirmatively appear[] that it is more
probable than not that the [absence of the missing-witness instruction] was outcome
determinative.” Riddle, 467 Mich at 124-125.
Affirmed.
/s/ Kristina Robinson Garrett
/s/ Philip P. Mariani

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