Following a jury trial, defendant was convicted of perjury, MCL 750.422, and was sentenced to serve twenty-four months’ probation and to perform fifty hours of community service. She appeals as of right. We reverse.
This case arises from testimony defendant provided to the circuit court, in an earlier case, in persuading it to set aside a default judgment of divorce. She asserted that she had no notice of the divorce until informed by her husband and her attorney that a final judgment had been entered. The trial court set aside the default judgment, stating, “The law doesn’t favor defaults, especially defaults that are ten [days] old, like this. Listening to it all, it sounds to me like the mother ought to have known there was a divorce going on, but I’m not convinced.” Defendant’s statements at the hearing, along with an affidavit she provided in support of the motion, formed the basis for her conviction of perjury.
Defendant argues that the trial court erred in deciding the perjurious statements were material as a matter of law. Perjury occurs when a person under oath knowingly makes a false statement concerning a material issue, and there was a legal duty to take the oath.
People v Kozyra,
The Fifth and Sixth Amendments of the United States Constitution “ ‘require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ ”
People v Carines,
The existence of a unique historical exception to the principle — and an exception that reduces the power of the jury precisely when it is most important, i.e., in a prosecution not for harming another individual, but for offending the Government itself — would be so extraordinary that the evidence for it would have to be convincing indeed. It is not so. [Id. at 515.]
In the present case, the trial court ruled before trial that defendant’s alleged statements concerned a material matter. In instructing the jury on the elements of perjury, the trial court made no mention of materiality (despite defense counsel's efforts to include the issue in the instructions), and the jury did not decide the matter. We find that the trial court erred in pre *252 eluding the jury from considering that element, and instead deciding it as a matter of law.
An error in omitting an element of a crime is one of constitutional import.
Carines, supra
at 761. Where a defendant shows preserved, constitutional error, “[i]f 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.”
Id.
at 774 (appendix), citing
People v Anderson (After Remand),
In the instant case, the jury could well have decided to regard the subject matter of defendant’s alleged misstatements as immaterial. The trial court indicated that it was “not convinced” that defendant’s statements were false; and apparently set aside the default under a general sense of fairness pursuant to MCR 2.612(C)(f) (“[a]ny other reason justifying relief”), expressing concerns about the general disfavoring of defaults, the short life of the default in question, and the lack of a custody decision on its merits. Thus, a jury could have found defendant’s assertions that she lacked notice did not affect the outcome of the motion to set aside the default.
We note that, in the past, this Court has held that the question of materiality in prosecutions concerning misstatements of fact is for the court to decide, not the jury. See
People v Noble,
Defendant also argues that the evidence of materiality was insufficient to support the bindover, denial of her motion to quash, and denial of her motion for a directed verdict. We review a district court’s decision to bind a defendant over for trial, and a trial court’s decision on a motion to quash an information, to determine whether the court abused its discretion.
People v Hamblin,
We first note that defendant argues not that the evidence was insufficient to prove she testified falsely, but rather that her statements themselves were immaterial to the matter at hand, as a matter of law. Defendant asserts that the trial court did not rely on her testimony in deciding to set aside the default. However, at issue is whether the allegedly false testimony
could
have affected the outcome, not necessarily whether it actually did so.
People v Jeske,
Moreover, we find no error in the district court’s decision to bind defendant over for trial. The district court must bind a defendant over for trial if, at the end of the preliminary examination, it concludes that probable cause exists to believe that a felony has been committed and that the defendant committed it.
People v Abraham,
Because we do not agree with defendant that the trial court found her statements immaterial as a matter of law, we need not consider her arguments that the doctrines of collateral estoppel and res judicata preclude litigating the element of materiality. However, we reverse because the jury could have found *255 defendant’s statements immaterial and acquitted her of perjury.
Reversed. We do not retain jurisdiction.