PER CURIAM.
On Sunday, March 17, 2013, defendant entered a Halo Burger in Genesee County where Jennifer Thomas was working as a shift manager and Elizabeth Murphy was working as a crew member. At approximately 11:10 a.m., defendant approached Thomas at the counter and demanded all the money that was in the till. Thomas asked defendant whether he was "f* * *ing serious" and defendant said, "Yes, I am, don't move, don't push a button, give me all the money in your till." Thomas observed that defendant had strawberry blond/reddish facial hair. He was wearing a dark-blue zip-up hooded sweatshirt (hoodie) that had an insignia on the left side. Defendant's hands were in his pockets, but the pockets, as she described them, "bulged forward." Thomas demonstrated for the jury how defendant held his hands in his pockets. She was not sure whether defendant actually had a weapon, but did not take any chances. Thomas turned over the contents of the register: three $10 bills, six $5 bills, and thirty-five $1 bills.
Murphy also indicated that she observed defendant. He had strawberry-blond facial hair and had his hands in the pockets of his hoodie "bulging forward." Like Thomas, Murphy testified that she assumed defendant had a weapon. She activated the alarm button after defendant left.
The prosecutor presented a witness who placed defendant in the area of the Halo Burger near the time of the robbery. Kuldip Singh testified that he worked at the Shell gas station in Burton and that an individual matching defendant's description was in his store at approximately 10:45 a.m. that day. The Shell station maintained surveillance cameras and Singh cooperated in finding an image of the individual, which was later shown to Thomas and Murphy at the Halo Burger. Both Thomas and Murphy separately identified the man in the surveillance photo as the robber. They both also separately (and immediately) chose defendant's image from a photo array shown to them several days later.
An officer on patrol heard about the robbery from dispatch. The alert was accompanied by a description of the robber. The officer proceeded to a common drug location because in his experience, robbers tended to use the proceeds of their crimes for drugs. The officer pulled up near a maroon Grand Prix and noted that the driver's appearance matched the description of the robber. He pulled defendant over and while defendant was looking for his license, insurance, and registration, the officer observed "quite a bit of money on the front floorboard under the driver's feet... up towards the center console." There was also a blue hooded sweatshirt in the back seat. Defendant was arrested. Defendant told officers that he lived in Fenton and that he was coming from his girlfriend's house in Burton and going to his friend's house around the corner. Officers found $75 under the front driver's seat. There was one $10 bill, six $5 bills, and thirty-five $1 bills. There was a screwdriver under the hooded sweatshirt in the middle of the backseat. An officer returned to Halo Burger where Thomas confirmed that the hoodie taken from the vehicle defendant was driving was the same hoodie the robber was wearing.
Defendant argues that there was insufficient evidence to support his conviction of armed robbery because there was no evidence that defendant possessed a weapon or verbally indicated that he had a weapon. Defendant argues that the armed-robbery statute requires that a person have a reasonable belief that the defendant was armed with a dangerous weapon. We disagree with defendant's interpretation.
"We review de novo a challenge on appeal to the sufficiency of the evidence." People v. Ericksen, 288 Mich.App. 192, 195, 793 N.W.2d 120 (2010). "Taking the evidence in the light most favorable to the prosecution, the question on appeal is whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt." People v. Hardiman, 466 Mich. 417, 421, 646 N.W.2d 158 (2002). "It is for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded those inferences." Id. at 428, 646 N.W.2d 158.
"Statutory interpretation is a question of law that we review de novo." People v. Phillips, 469 Mich. 390, 394, 666 N.W.2d 657 (2003). "[The Court's] goal in interpreting a statute is to ascertain and give effect to the intent of the Legislature. The touchstone of legislative intent is the statute's language. If the statute's language is clear and unambiguous, we assume that the Legislature intended its plain meaning and we enforce the statute as written." People v. Hardy, 494 Mich. 430, 439, 835 N.W.2d 340 (2013) (quotation marks omitted).
MCL 750.529 provides, in pertinent part:
Therefore, a prosecutor must prove the following to obtain an armed robbery conviction:
Defendant argues that MCL 750.529 requires that the victim have a reasonable belief that a defendant was armed with a dangerous weapon. In so doing, defendant ignores the statute's plain language. The clause "possesses a dangerous weapon or an article used or fashioned in a manner to lead any person present to reasonably believe the article is a dangerous weapon," requires that the defendant either (1) actually possess a dangerous weapon, or (2) possess some article that would lead a person, to reasonably believe the article is a dangerous weapon. But the following clause in the statute — "or who represents orally or otherwise that he or she is in possession of a dangerous weapon" — does not contain the same "reasonable belief" requirement. "The word `or' is a disjunctive term [and] indicates a choice between two alternatives." Michigan v. McQueen, 293 Mich.App. 644, 671, 811 N.W.2d 513 (2011) (citation omitted). The second clause provides that a defendant may be guilty of armed robbery if he either (1) orally represents that he has a dangerous weapon, or (2) "otherwise represents" that he possesses a dangerous weapon. For these two alternatives, the victim's fear or belief is irrelevant. Thus, a defendant is guilty of armed robbery if he engages in conduct under MCL 750.530 and (1) he actually possesses a dangerous weapon, or (2) he possesses some article that would lead a person to reasonably believe that the article is a dangerous weapon, or (3) he orally represents that he possesses a dangerous weapon, or (4) he otherwise represents that he possesses a dangerous weapon.
Defendant cites People v. Saenz, 411 Mich. 454, 455, 307 N.W.2d 675 (1981), People v. Jolly, 442 Mich. 458, 502 N.W.2d 177 (1993), and People v. Johnson, 206 Mich.App. 122, 520 N.W.2d 672 (1994), but these cases all involved the old armed-robbery statute, which provided in part:
The 2004 amendment changed the statute significantly. The old statute required that the robber be either armed with a dangerous weapon or possess some article that would lead the person assaulted to reasonably believe it to be a dangerous weapon. The newer version provides the four alternatives previously discussed. The fourth scenario under the amended statute is at play in this case because neither Thomas nor Murphy saw defendant with a weapon and defendant made no oral representation that he possessed a weapon. Defendant's analysis on this issue is flawed to the extent that he focuses on whether Thomas or Murphy had a reasonable belief that defendant was armed. Instead, the focus must be on whether defendant otherwise represented that he was in possession of a dangerous weapon.
Murphy also believed that defendant was armed. Like Thomas, Murphy was able to demonstrate defendant's posture for the jury. Murphy testified, "I'm not sure what it is, but I'm thinking a weapon" and that the robber's hands were clearly "bulging forward." She added that it was not unusual to have one's hands in the pockets of a hoodie but "[u]sually, you know, you'll pull your pockets facing down in your hands, not up to your, you know, to your stomach area. Usually you just put your hands in your pockets and they just lay flat...."
Therefore, although no weapon was displayed and defendant did not orally represent that he was armed, he "otherwise represented" that he was armed by placing his hands in his pockets and pushing them forward. There was sufficient evidence to support defendant's armed-robbery conviction.
Defendant argues that his 2006 armed robbery of a 7-Eleven store was irrelevant to the 2013 Halo Burger incident and that evidence of the previous crime greatly prejudiced his case. We disagree.
This Court reviews for an abuse of discretion a trial court's decision to admit other-acts evidence. People v. McGhee, 268 Mich.App. 600, 636, 709 N.W.2d 595 (2005). A trial court does not abuse its discretion when it chooses an outcome within the range of reasonable and principled outcomes. People v. Babcock, 469 Mich. 247, 269, 666 N.W.2d 231 (2003).
Generally, character evidence cannot be used to show that a defendant acted in conformity therewith because there is a danger that a defendant will be convicted solely on his history of misconduct rather than on his conduct in a particular case. People v. Starr, 457 Mich. 490, 495, 577 N.W.2d 673 (1998). MRE 404(b) therefore provides:
A proper purpose is one focused on something other than establishing the defendant's character to show his propensity to commit the offense. People v. Johnigan, 265 Mich.App. 463, 465, 696 N.W.2d 724 (2005). "Evidence is relevant if it has any tendency to make the existence of a fact that is of consequence to the action more probable or less probable than it would be without the evidence." People v. Aldrich, 246 Mich.App. 101, 114, 631 N.W.2d 67 (2001), citing MRE 401. Under this broad definition, evidence that is useful in shedding light on any material point is admissible. Aldrich, 246 Mich.App. at 114, 631 N.W.2d 67 (emphasis added). However, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. MRE 403 provides, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
The prosecution sought to admit evidence of a 2006 incident at a 7-Eleven in which defendant allegedly indicated that he had a gun and that he would shoot the clerk if she did not hand over the money he demanded. The prosecutor argued that the 7-Eleven incident was relevant to defendant's intent "to give the impression that he was armed." It was also evidence of his system in robbing retail establishments. The prosecution also believed that the incident bore a "signature" quality that made it relevant to identity. The trial court ruled, "The prosecutor can use the 404 information about the previous robbery attempt to the extent where they want to show that [defendant] has an intent to threaten with a weapon. The identity information will not be used."
At trial, Rachel Ann Springer testified that on August 8, 2006, defendant came into the 7-Eleven and told Springer that he wanted all the money in the cash register. Springer asked him if he was serious because she could not believe she was being robbed. She did not see a weapon, but defendant told her "I will shoot you."
The trial court did not abuse its discretion when it permitted the prosecution to present evidence of the 7-Eleven robbery that took place in 2006. The evidence was offered for a proper purpose and was highly relevant. It was not offered for the purpose of showing that defendant was a bad person. Instead, it was offered to give context to the crime itself. Defendant's behavior demonstrated an intent to place his victims in fear that he was armed with a dangerous weapon. While the evidence was undoubtedly prejudicial, it cannot be said that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, especially in light of defendant's claim that he was not armed and that both Thomas and Murphy were unreasonable in their fear that defendant was armed.
Defendant argues that the trial court erred when it permitted the prosecution to
In general, "[a]ll relevant evidence is admissible" while "[e]vidence which is not relevant is not admissible." MRE 402. As previously stated, "[e]vidence is relevant if it has any tendency to make the existence of a fact that is of consequence to the action more probable or less probable than it would be without the evidence." Aldrich, 246 Mich.App. at 114, 631 N.W.2d 67. Under this broad definition, evidence that is useful in shedding light on any material point is admissible. Id. at 114, 631 N.W.2d 67. In determining admissibility, "[t]he relationship of the elements of the charge, the theories of admissibility, and the defenses asserted governs what is relevant and material. In order to be material, the fact must be within the range of litigated matters in controversy." People v. Yost, 278 Mich.App. 341, 403, 749 N.W.2d 753 (2008) (quotation marks and citations omitted). "Relevance involves two elements, materiality and probative value. Materiality refers to whether the fact was truly at issue." People v. Benton, 294 Mich.App. 191, 199, 817 N.W.2d 599 (2011) (quotation marks and citations omitted).
However, even if a proponent of evidence can demonstrate its relevance, the evidence may still be excluded if the probative value of the evidence is outweighed by the danger of unfair prejudice. Yost, 278 Mich.App. at 407, 749 N.W.2d 753. "Unfair prejudice may exist where there is a danger that the evidence will be given undue or preemptive weight by the jury or where it would be inequitable to allow use of the evidence." People v. Blackston, 481 Mich. 451, 462, 751 N.W.2d 408 (2008). "Assessing probative value against prejudicial effect requires a balancing of several factors, including ... how directly the evidence tends to prove the fact for which it is offered, how essential the fact sought to be proved is to the case, the potential for confusing or misleading the jury, and whether the fact can be proved in another manner without as many harmful collateral effects." Id.
Before trial, the prosecutor sought to introduce evidence that just minutes before the Halo Burger robbery, defendant attempted to rob a nearby Shell gas
At a later hearing, the prosecutor asked to introduce the Shell station incident as proof that defendant was in the area of the Halo Burger, without making any reference to the attempted robbery. The trial court indicated that it did not "mind that" and that the prosecution "may say he was seen at the Shell station. They're not going to talk about what his activities were. They're not going to talk about screwdrivers found in a path."
At a later hearing, the prosecutor advised the trial court that criminal charges had been filed against defendant for the Shell station incident and requested that the two cases be tried together. The trial court indicated that it would "not try them together. The Court will deny the motion for consolidation ... I think they need to be tried separately because they're different crimes, different victims, and different locations...."
At trial, Singh testified that an individual matching defendant's description was in his store at approximately 10:45 a.m. on the day of the Halo Burger robbery. The Shell station maintained surveillance cameras and Singh cooperated in finding an image of the individual, which was later shown to Thomas and Murphy at the Halo Burger. There was a seven-mile distance between the Shell station and Halo Burger. The surveillance video from Shell was from approximately 10:45 a.m. and the robbery at Halo Burger occurred at 11:10 a.m.
Contrary to defendant's assertions, the evidence was highly relevant. It not only placed defendant in the vicinity of the Halo Burger at the time of the robbery, but the Shell station incident resulted in surveillance images that allowed the Halo Burger victims (Thomas and Murphy) to identify the robber. It cannot be said that the probative value of the evidence was out-weighed by the danger of unfair prejudice, given the limited use of the evidence.
At trial, Stephanie Keen testified that she and defendant had been in a romantic relationship for a few weeks before the robbery. She spent the night with him at his mother's house the night before the robbery. When she woke up the next morning at 10:00 a.m., defendant was gone. Also missing was Keen's sister's car that Keen had been using while her sister was in Hawaii. Defendant was arrested while driving Keen's sister's car.
Defense counsel objected, arguing that it was hearsay evidence and was irrelevant because "[i]t's what his mother may or may not have done." (Emphasis added.) Not addressing the relevancy issue, the trial court ruled, "It's not being offered for the truth of the matter asserted. We can go ahead with it." The exchange continued:
The evidence was totally irrelevant. Defendant was not on trial for stealing the vehicle or unlawfully driving it away. The fact that he was arrested in Keen's sister's car was not in dispute at trial. Nor was the testimony relevant to Keen's credibility to show her "motivation not to lie," as the prosecution argues. It is true that "[i]f a witness is offering relevant testimony, whether that witness is truthfully and accurately testifying is itself relevant because it affects the probability of the existence of a consequential fact," People v. Mills, 450 Mich. 61, 72, 537 N.W.2d 909 (1995), modified 450 Mich. 1212, 539 N.W.2d 504 (1995), but it is unclear how whether defendant had permission to drive the car touched on anything other than defendant's mother's potential wrongdoing.
Nevertheless, "[a] preserved error in the admission of evidence does not warrant reversal unless after an examination of the entire cause, it shall affirmatively appear that it is more probable than not that the error was outcome determinative." People v. Burns, 494 Mich. 104, 110, 832 N.W.2d 738 (2013) (quotation marks and citation omitted). "The reviewing court must examine the nature of the error and assess its effect in light of the weight and strength of the untainted evidence." Phillips, 469 Mich. at 397, 666 N.W.2d 657 (quotation marks and citations omitted). Given the overwhelming evidence that defendant committed the armed robbery, it cannot be said that this bit of evidence was outcome determinative. Both Thomas and Murphy positively identified defendant as the robber. He was driving a car that contained a hoodie matching the description Thomas had given. There were six $5 bills and thirty-five $1 bills, among other currency, that matched the denominations taken from Halo Burger. Because of the overwhelming evidence against defendant, any error in admitting the evidence was harmless.
Defendant filed a Standard 4 brief under Administrative Order 2004-6. However, defendant's brief is bereft of citations to the record or any analysis. "An appellant may not merely announce his
Nevertheless, we have thoroughly reviewed each of the issues raised. Save one, there is no merit to any of them. The one issue that deserves at least a brief discussion is defendant's claim that the prosecutor impermissibly shifted the burden of proof to defendant. We find some merit to this claim as demonstrated by the following exchange between the prosecutor and the lead detective:
Affirmed.
BECKERING, P.J., and OWENS and K.F. KELLY, JJ., concurred.