MSC amendment of Court Rules pertaining to Jury trials effective 9.1.2011

Rule 2.512 Instructions to Jury

(A) Request for Instructions.

(1) At a time the court reasonably directs, the parties must file written requests that the court instruct the jury on the law as stated in the requests. In the absence of a direction from the court, a party may file a written request for jury instructions at or before the close of the evidence.

(2) In addition to requests for instructions submitted under subrule (A)(1), after the close of the evidence, each party shall submit in writing to the court a statement of the issues and may submit the party’s theory of the case regarding each issue. The statement must be concise, be narrative in form, and set forth as issues only those disputed propositions of fact that are supported by the evidence. The theory may include those claims supported

by the evidence or admitted.

(3) A copy of the requested instructions must be served on the adverse parties in accordance with MCR 2.107.

(4) The court shall inform the attorneys of its proposed action on the requests before their arguments to the jury.

(5) The court need not give the statements of issues or theories of the case in the form submitted if the court presents to the jury the material substance of the issues and theories of each party.

(B) Instructing the Jury.

(1) At any time during the trial, the court may, with or without request, instruct the jury on a point of law if the instruction will materially aid the jury in understanding the proceedings and arriving at a just verdict.

(2) Before or after arguments or at both times, as the court elects, the court shall instruct the jury on the applicable law, the issues presented by the case, and, if a party requests as provided in subrule (A)(2), that party’s theory of the case.

(C) Objections. A party may assign as error the giving of or the failure to give an instruction only if the party objects on the record before the jury retires to consider the verdict (or, in the case of instructions given after deliberations have begun, before the jury resumes deliberations), stating specifically the matter to which the party objects and the grounds for the objection. Opportunity must be given to make the objection out of the hearing of the jury.

(D) Model Civil Jury Instructions.

(1) The Committee on Model Civil Jury Instructions appointed by the Supreme Court has the authority to adopt model civil jury instructions (M Civ JI) and to amend or repeal those instructions approved by the predecessor committee. Before adopting, amending, or repealing an instruction, the committee shall publish notice of the committee’s intent, together with the text of the instruction to be adopted, or the amendment to be made, or a

reference to the instruction to be repealed, in the manner provided in MCR 1.201. The notice shall specify the time and manner for commenting on the proposal. The committee shall thereafter publish notice of its final action on the proposed change, including, if appropriate, the effective date of the adoption, amendment, or repeal. A model civil jury instruction does not have the force and effect of a court rule.

(2) Pertinent portions of the instructions approved by the Committee on Model Civil Jury Instructions or its predecessor committee must be given in each action in which jury instructions are given if (a) they are applicable, (b) they accurately state the applicable law, and (c) they are requested by a party.

(3) Whenever the committee recommends that no instruction be given on a particular matter, the court shall not give an instruction unless it specifically finds for reasons stated on the record that (a) the instruction is necessary to state the applicable law accurately, and (b) the matter is not adequately covered by other pertinent model civil jury instructions.

(4) This subrule does not limit the power of the court to give additional instructions on applicable law not covered by the model instructions.  Additional instructions, when given, must be patterned as nearly as practicable after the style of the model instructions and must be concise, understandable, conversational, unslanted, and nonargumentative.

Rule 2.513 Conduct of Jury Trial View

(A) Preliminary Instructions. After the jury is sworn and before evidence is taken, the court shall provide the jury with pretrial instructions reasonably likely to assist in its consideration of the case. Such instructions, at a minimum, shall communicate the duties of the jury, trial procedure, and the law applicable to the case as are reasonably necessary to enable the jury to understand the proceedings and the evidence. The jury also shall be instructed about the elements of all civil claims or all charged offenses, as well as the legal presumptions and burdens of proof.  The court shall provide each juror with a copy of such instructions. MCR 2.512(D)(2) does not apply to such preliminary instructions. By Jury. On motion of either party or on its own initiative, the court may order an officer to take the jury as a whole to view property or a place where a material event occurred. During the view, no person other than the officer designated by the court may speak to the jury concerning a subject connected with the trial. The court may order the party requesting a jury view to pay the expenses of the view.

(B) Court’s Responsibility. The trial court must control the proceedings during trial, limit the evidence and arguments to relevant and proper matters, and take appropriate steps to ensure that the jurors will not be exposed to information or influences that might affect their ability to render an impartial verdict on the evidence presented in court. The court may not communicate with the jury or any juror pertaining to the case without notifying the parties and permitting them to be present. The court must ensure that all communications pertaining to the case between the court and the jury or any juror are made a part of the record.  By Court. On application of either party or on its own initiative, the court sitting as trier of fact without a jury may view property or a place where a material event occurred.

(C) Opening Statements. Unless the parties and the court agree otherwise, the plaintiff or the prosecutor, before presenting evidence, must make a full and fair statement of the case and the facts the plaintiff or the prosecutor intends to prove.  Immediately thereafter, or immediately before presenting evidence, the defendant may make a similar statement. The court may impose reasonable time limits on the opening statements.

(D) Interim Commentary. Each party may, in the court’s discretion, present interim commentary at appropriate junctures of the trial.

(E) Reference Documents. The court may authorize or require counsel in civil and criminal cases to provide the jurors with a reference document or notebook, the contents of which should include, but which is not limited to, a list of witnesses, relevant statutory provisions, and, in cases where the interpretation of a document is at issue, copies of the relevant document. The court and the parties may supplement the reference document during trial with copies of the preliminary jury instructions, admitted exhibits, and other admissible information to assist jurors in their deliberations.

(F) Deposition Summaries. Where it appears likely that the contents of a deposition will be read to the jury, the court should encourage the parties to prepare concise, written summaries of depositions for reading at trial in lieu of the full deposition.  Where a summary is prepared, the opposing party shall have the opportunity to object to its contents. Copies of the summaries should be provided to the jurors before they are read.

(G) Scheduling Expert Testimony. In a civil action, the court may, in its discretion, craft a procedure for the presentation of all expert testimony to assist the jurors in performing their duties. Such procedures may include, but are not limited to: (1) Scheduling the presentation of the parties’ expert witnesses sequentially; or (2) allowing the opposing experts to be present during the other’s testimony and to aid counsel in formulating questions to be asked of the testifying expert on cross-examination.

(H) Note Taking by Jurors. The court may permit the jurors to take notes regarding the evidence presented in court. If the court permits note taking, it must instruct the jurors that they need not take notes, and they should not permit note taking to interfere with their attentiveness. If the court allows jurors to take notes, jurors must be allowed to refer to their notes during deliberations, but the court must instruct the jurors to keep their notes confidential except as to other jurors during deliberations. The court shall ensure that all juror notes are collected and destroyed when the trial is concluded.

(I) Juror Questions. The court may permit the jurors to ask questions of witnesses.  If the court permits jurors to ask questions, it must employ a procedure that ensures that such questions are addressed to the witnesses by the court itself, that inappropriate questions are not asked, and that the parties have an opportunity outside the hearing of the jury to object to the questions. The court shall inform the jurors of the procedures to be followed for submitting questions to witnesses.

(J) Jury View. On motion of either party, on its own initiative, or at the request of the jury, the court may order a jury view of property or of a place where a material event occurred. The parties are entitled to be present at the jury view, provided, however, that in a criminal case, the court may preclude a defendant from attending a jury view in the interests of safety and security. During the view, no person, other than an officer designated by the court, may speak to the jury concerning the subject connected with the trial. Any such communication must be recorded in some fashion.

(K) Juror Discussion. In a civil case, after informing the jurors that they are not to decide the case until they have heard all the evidence, instructions of law, and arguments of counsel, the court may instruct the jurors that they are permitted to discuss the evidence among themselves in the jury room during trial recesses.  The jurors should be instructed that such discussions may only take place when all jurors are present and that such discussions must be clearly understood as tentative pending final presentation of all evidence, instructions, and argument.

(L) Closing Arguments. After the close of all the evidence, the parties may make closing arguments. The plaintiff or the prosecutor is entitled to make the first closing argument. If the defendant makes an argument, the plaintiff or the prosecutor may offer a rebuttal limited to the issues raised in the defendant’s argument. The court may impose reasonable time limits on the closing arguments.

(M) Summing up the Evidence. After the close of the evidence and arguments of counsel, the court may fairly and impartially sum up the evidence if it also instructs the jury that it is to determine for itself the weight of the evidence and the credit to be given to the witnesses and that jurors are not bound by the court’s summation. The court shall not comment on the credibility of witnesses or state a conclusion on the ultimate issue of fact before the jury.

(N) Final Instructions to the Jury.

(1) Before closing arguments, the court must give the parties a reasonable opportunity to submit written requests for jury instructions. Each party must serve a copy of the written requests on all other parties. The court must inform the parties of its proposed action on the requests before their closing arguments. After closing arguments are made or waived, the court must instruct the jury as required and appropriate, but at the discretion of the court, and on notice to the parties, the court may instruct the jury before the parties make closing arguments. After jury deliberations begin, the court may give additional instructions that are appropriate.

(2) Solicit Questions about Final Instructions. As part of the final jury instructions, the court shall advise the jury that it may submit in a sealed envelope given to the bailiff any written questions about the jury instructions that arise during deliberations. Upon concluding the final instructions, the court shall invite the jurors to ask any questions in order to clarify the instructions before they retire to deliberate.  If questions arise, the court and the parties shall convene, in the courtroom or by other agreed-upon means. The question shall be read into the record, and the attorneys shall offer comments on an appropriate response. The court may, in its discretion, provide the jury with a specific response to the jury’s question, but the court shall respond to all questions asked, even if the response consists of a directive for the jury to continue its deliberations.

(3) Copies of Final Instructions. The court shall provide a written copy of the final jury instructions to take into the jury room for deliberation. Upon request by any juror, the court may provide additional copies as necessary.  The court, in its discretion, also may provide the jury with a copy of electronically recorded instructions.

(4) Clarifying or Amplifying Final Instructions. When it appears that a deliberating jury has reached an impasse, or is otherwise in need of assistance, the court may invite the jurors to list the issues that divide or confuse them in the event that the judge can be of assistance in clarifying or amplifying the final instructions.

(O) Materials in the Jury Room. The court shall permit the jurors, on retiring to deliberate, to take into the jury room their notes and final instructions. The court may permit the jurors to take into the jury room the reference document, if one has been prepared, as well as any exhibits and writings admitted into evidence. 

(P) Provide Testimony or Evidence. If, after beginning deliberation, the jury requests a review of certain testimony or evidence that has not been allowed into the jury room under subrule (O), the court must exercise its discretion to ensure fairness and to refuse unreasonable requests, but it may not refuse a reasonable request.  The court may make a video or audio recording of witness testimony, or prepare an immediate transcript of such testimony, and such tape or transcript, or other testimony or evidence, may be made available to the jury for its consideration.  The court may order the jury to deliberate further without the requested review, as long as the possibility of having the testimony or evidence reviewed at a later time is not foreclosed.

Rule 2.514 Rendering Verdict

(A) Majority Verdict; Stipulations Regarding Number of Jurors and Verdict. The parties may stipulate in writing or on the record that (1) the jury will consist of any number less than 6, (2) a verdict or a finding of a stated majority of the jurors will be taken as the verdict or finding of the jury, or (3) if more than 6 jurors were impaneled, all the jurors may deliberate.  Except as provided in MCR 5.740(C), in the absence of such stipulation, a verdict in a civil action tried by 6 jurors will be received when 5 jurors agree.

(B) Return; Poll.

(1) The jury must return its verdict in open court.

(2) A party may require a poll to be taken by the court asking each juror if it is his or her verdict.

(3) If the number of jurors agreeing is less than required, the jury must be sent back for further deliberation; otherwise, the verdict is complete, and the court shall discharge the jury.

(C) Discharge From Action; New Jury. The court may discharge a jury from the action:

(1) because of an accident or calamity requiring it;

(2) by consent of all the parties;

(3) whenever an adjournment or mistrial is declared;

(4) whenever the jurors have deliberated and it appears that they cannot agree.  The court may order another jury to be drawn, and the same proceedings may be had before the new jury as might have been had before the jury that was discharged.

(D) Responsibility of Officers.

(1) All court officers, including trial attorneys, must attend during the trial of an action until the verdict of the jury is announced. (2) A trial attorney may, on request, be released by the court from further attendance, or the attorney may designate an associate or other attorney to act for him or her during the deliberations of the jury.

Rule 2.515 Special Verdicts

(A) Use of Special Verdicts; Form. The court may require the jury to return a special verdict in the form of a written finding on each issue of fact, rather than a general verdict. If a special verdict is required, the court shall, in advance of argument and in the absence of the jury, advise the attorneys of this fact and, on the record or in writing, settle the form of the verdict. The court may submit to the jury: (1) written questions that may be answered categorically and briefly; (2) written forms of the several special findings that might properly be made under the pleadings and evidence; or (3) the issues by another method, and require the written findings it deems most appropriate.  The court shall give to the jury the necessary explanation and instruction concerning the matter submitted to enable the jury to make its findings on each issue.

(B) Judgment. After a special verdict is returned, the court shall enter judgment in accordance with the jury's findings.

(C) Failure to Submit Question; Waiver; Findings by Court. If the court omits from the special verdict form an issue of fact raised by the pleadings or the evidence, a party waives the right to a trial by jury of the issue omitted unless the party demands its submission to the jury before it retires for deliberations. The court may make a finding with respect to an issue omitted without a demand. If the court fails to do so, it is deemed to have made a finding in accord with the judgment on the special verdict.

Rule 2.516 Motion for Directed Verdict

A party may move for a directed verdict at the close of the evidence offered by an opponent. The motion must state specific grounds in support of the motion. If the motion is not granted, the moving party may offer evidence without having reserved the right to do so, as if the motion had not been made. A motion for a directed verdict that is not granted is not a waiver of trial by jury, even though all parties to the action have moved for directed verdicts.

Staff Comment: The amendments in this order reflect the Court’s approval of many of the jury reform principles tested in the Court’s two-year jury reform pilot project that ended in December 2010. Under this order, jury practices for both civil and criminal proceedings are generally incorporated in a new MCR 2.513. The Court will review the efficacy of these amendments in 2014.

Sentence guidelines and statutorily enhanced sentences.

In People v Peltola, __ Mich __ (#140524, 6/14/2011) the Michigan Supreme Court held the scoring of the prior record variables (PRVs), when calculating a defendant’s recommended minimum sentence range under the statutory sentencing guidelines, remains proper when a defendant’s minimum and maximum sentences may be enhanced pursuant to MCL 333.7413(2).

In Peltola, supra the jury convicted defendant of delivery of less than 50 grams of heroin1 and conspiracy to deliver less than 50 grams of heroin. The trial court scored the PRVs and the relevant offense variables (OVs), calculating defendant’s minimum sentence range at 5 to 23 months in prison with a statutory maximum of 20 years. Because defendant had a prior conviction for a controlled substance offense, the trial court applied the sentence enhancement in MCL 333.7413(2) and doubled both the minimum and maximum sentences for each conviction.  Defendant was sentenced within the enhanced guidelines range to concurrent terms of 46 months to 40 years’ imprisonment.  On appeal the Supreme Court rejected defendant’s argument that PRVs should not be scored when calculating the minimum sentence range for an offender whose sentence may be enhanced under MCL 333.7413(2), notwithstanding language to the contrary in People v Lowe, 484 Mich 718 (2009).

Assumption of contractual obligations does not limit existing common-law or statutory tort duties.

In Loweke v Ann Arbor Ceiling & Partition Co, LLC, __ Mich __ (#141168, 6/6/2011) the Michigan Supreme Court held that a contracting party’s assumption of contractual obligations does not extinguish or limit separately existing common-law or statutory tort duties owed to noncontracting third parties in the performance of the contract.

In Loweke plaintiff, an employee of an electrical subcontractor, was injured at a construction site when several cement boards fell on him. The boards had been leaned against a wall by employees of defendant, a carpentry and drywall subcontractor, which, like plaintiff’s employer, had been hired by a general contractor to work on the construction project.

As this Court has historically recognized, a separate and distinct duty to support a cause of action in tort can arise by statute, Clark v Dalman, 379 Mich 251 (1967), or by a number of preexisting tort principles, including duties imposed because of a special relationship between the parties, see, e.g., Williams v Cunningham Drug Stores, Inc, 429 Mich 495 (1988), and Fultz v Union-Commerce Assoc, 470 Mich 460 (2004),, and the generally recognized common-law duty to use due care in undertakings, see, e.g., Clark, supra; Hart, 347 Mich at 564.  In summary, “[w]hether a particular defendant owes any duty at all to a particular plaintiff [in tort],” Fultz, 470 Mich at 467 (emphasis added), is generally determined without regard to the obligations contained within the contract, Davis, 568 F3d at 577.  See, also, Churchill v Howe, 186 Mich 107, 114; 152 NW 989 (1915) (explaining that although a tort can grow out of a contract, in general, a tort is a “wrong independent of a contract”). Accordingly, with the aforementioned principles in mind, we clarify that when engaging in the “separate and distinct mode of analysis” in Fultz’s analytical framework, see 470 Mich at 469-470, courts should not permit the contents of the contract to obscure the threshold question of whether any independent legal duty to the non contracting third party exists, the breach of which could result in tort liability. Instead, in determining whether the action arises in tort, and thus whether a separate and distinct duty independent of the contract exists, the operative question under Fultz is whether the defendant owed the plaintiff any legal duty that would support a cause of action in tort, including those duties that are imposed by law.  Under Fultz, a contracting party’s assumption of contractual obligations does not extinguish or limit separate, preexisting common-law or statutory tort duties owed to noncontracting third parties in the performance of a contract. Accordingly, we clarify that when engaging in Fultz’s “separate and distinct mode of analysis,” courts should not permit the contents of the contract to obscure the proper initial inquiry: whether, aside from the contract, the defendant owed any independent legal duty to the plaintiff. In this case, defendant—by performing an act under the contract—was not relieved of its preexisting common-law duty to use ordinary care in order to avoid physical harm to foreseeable persons and property in the execution of its undertakings. That duty, which is imposed by law, is separate and distinct from defendant’s contractual obligations with the general contractor.

Applying contract law to a property settlement agreement.

In Smith v Smith, __ Mich App __ (#295243, 5/26/2011) the Court of Appeals applied contract law to a property settlement agreement dividing IRAs thereby holding the parties to the written language in the agreement, notwithstanding any subsequent possible unfairness.   

When a court interprets a contract, the entire contract must be read together and construed as a whole. Duval v Aetna Casualty & Surety Co, 304 Mich 397, 401 (1943). All the parts must be harmonized as much as possible, and each word of the contract must be given effect, if possible. Id. Also, courts may not change or rewrite plain and unambiguous language in a contract under the guise of interpretation because “the parties must live by the words of their agreement.” Harbor Park Market, Inc v Gronda, 277 Mich App 126 (2007).  Property-settlement agreements, as a general rule, are final and cannot be modified. Zeer v Zeer, 179 Mich App 622, 624 (1989). It is well settled that property settlement agreements are enforceable and that a court is bound by the terms of the agreement in the absence of fraud, duress, mutual mistake, or severe stress. Keyser v Keyser, 182 Mich App 268, 269-270 (1990). Parol evidence is generally not admissible to vary or contradict the terms of a clear and unambiguous contract. Hamade v Sunoco, Inc, 271 Mich App 145, 166-167 (2006).

The terms in the retirement-accounts section of the PSA are clear. The parties used fixed values for all the retirement accounts. Defendant was to retain his IRA, and plaintiff was to retain all other retirement accounts. To equalize the value each was receiving, defendant was required to transfer approximately $1.4 million to plaintiff. Because the terms were unambiguous, the trial court was bound by them, Keyser, 182 Mich App at 269-270, and the parties were required to live up to the terms of their agreement, Harbor Park Market, Inc, 277 Mich App at 130-131.  Also, when looking at the PSA as a whole, there is no indication that the parties intended to take into account market fluctuations in dividing the retirement accounts. In the investment property section, the PSA indicates that the investment accounts would be “divided evenly in kind,” which arguably takes into account market fluctuations. There is no such language in the retirement-accounts section.

The unimaginable loss of a mother and child; killed in a motor vehicle accident.

A mother and grandmother speaks at sentencing following the tragic loss of a child and grandson.  No alcohol, no drugs, no reckless driving, no intent to hurt anyone; but two lives are forever lost because the driver of the other vehicle didn’t stop at the stop sign.

              I am Sara’s mother and Aiden’s grandmother.  We appreciate the chance to make a statement.  Max and I, and Adam and Laura, and Brandon and Harmony, now all face a life without Sara’s smile and the sound of her voice.  She was the creative one in our very straight line thinking family.  She gave our whole lives color.  We will never hear Aiden’s laughter again or hear him sing a song.  Aiden will forever be stuck in our minds as a three year old.  He was Peter Pan to Harmony’s Tinker Bell.  If he had lived to Halloween of this year, he would have been the frog to Harmony’s princess; a costume that Sara designed for her. 

     One night recently, I looked through pictures on the computer; Harmony came to stand beside me.  We looked at pictures of her and Aiden, and suddenly a picture of Sara came up.  Harmony touched the screen and said, “Mommy, mommy I miss you so much.  Would you please come back”?  There is no comfort for a five year old girl who just wants to feel her mother’s hug.  It is inevitable that her memories of Sara and Aiden will fade.  And this is very sad because Sara was a wonderful mother, and Aiden was a bright shining boy who loved his sister. 

     I tell you these things not to get sympathy, but so that you and everyone here knows that they were not faceless.  Should I have to put my grief on parade for you to know that--and everyone else to know that I am sad, it should be enough for me to say that our lives have changed forever.  Life without Sara and Aiden is our new reality.  Not one that we like, but we will live it because we have no other choice. 

     None of us can judge Mr. Troxell.  If you have ever driven while on the phone, or texting, or changing a CD, or eating French fries, or talking to your children in the back seat, or if you’ve been driving while you were tired, you were driving while you were distracted and your fate could be the same as Mr. Troxell’s.  Just as our lives changed forever on October 19^th, so did his.  While I know that accidents happen, and I believe that that’s what this was, I do not want to hear excuses, not from Mr. Troxell, and not from people who feel the need to defend him.  When you make a mistake, take responsibility for it.

     If roles had been reversed here today and Sara were alive and receiving probation, I would tell her this, “You are being given a second chance to do whatever you want with your life.  Use that second chance well”.  I forgive you, because Sara would want me to and because hating you, or not forgiving you, cost me more than it does you.

     Sara and I used to talk on the phone all the time, and I can’t tell you what I would give to see her name come up on my called ID, or to hear her voice just one more time.  I read this line in a book recently, which describes our house now, “The silence here is very loud”.

The rules regarding piercing the corporate veil.

In Florence Cement Co v Vettriano, __ Mich App __ (#295090, 5/3/2011) the Court of Appeals held that defendants used their corporation as a mere instrumentality for themselves as individuals, and did not treat the corporation as an entity separate from themselves.  Such a failure is a hallmark of a claim for piercing the corporate veil. Essentially, where members do not treat an artificial entity as separate from themselves, neither will the Court.

The rules regarding piercing the corporate veil are applicable in determining whether to pierce the corporate veil of a limited liability company Lakeview Commons Limited Partnership v Empower Yourself, LLC, ___ Mich App ___ (2010).  While “there is no single rule delineating when a corporate entity may be disregarded, the entire spectrum of relevant facts form the background for such an inquiry, and the facts are to be assessed in light of the corporation’s economic justification to determine if the corporate form has been abused.”  In order for a court to order a corporate veil to be pierced, the corporate entity (1) must be a mere instrumentality of another individual or entity, (2) must have been used to commit a wrong or fraud, and (3) there must have been an unjust injury or loss to the plaintiff Rymal v Baergen, 262 Mich App 274, 293-294 (2004) (internal citations omitted); see also RDM Holdings, Ltd v Continental Plastics Co, 281 Mich App 678 (2008).

Separate Juries for Sexual delinquency cases not necessarily required

In People v Breidenbach, __ Mich __ (#140153, 4/28/2011) the Supreme Court held that the sexual delinquency statute, MCL 767.61a, neither explicitly nor implicitly requires that a separate jury determine the issue of sexual delinquency apart from the primary offense.  Separate jury trials under MCL 767.61a are discretionary, not mandatory. Should a trial court, in its discretion, determine that bifurcation is necessary in order to protect a defendant’s rights or ensure a fair determination of guilt or innocence, it may empanel separate juries.

The Michigan court rules contemplate that decisions regarding joint or severed trials for related charges lie firmly within the discretion of trial courts.  MCR 6.120(B) provides:  On its own initiative, the motion of a party, or the stipulation of all parties, except as provided in [MCR 6.120(C)], the court may 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, when appropriate to promote fairness to the parties and a fair determination of the defendant’s guilt or innocence of each offense.

(1) Joinder is appropriate if the offenses are related. For purposes of this rule, offenses are related if they are based on a) the same conduct or transaction, or b) a series of connected acts, or c) a series of acts constituting parts of a single scheme or plan.

(2) Other 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 charges or the complexity or nature of the evidence, the potential for harassment, the convenience of witnesses, and the parties’ readiness for trial.

This rule provides the proper framework for courts to analyze whether separate juries are required when sexual delinquency is charged in addition to a primary sexual offense. If “a fair determination of defendant’s guilt or innocence of each offense” would require separate juries, trial courts may order separate juries either sua sponte or on the motion of one of the parties.