PER CURIAM.
Defendant was convicted of first-degree felony murder, MCL 750.316(b), child abandonment, MCL 750.135, and unlawful driving away of an automobile (UDAA), MCL 750.413 following a jury trial.
The victim in this case was the mother of defendant's three year old child, ML. Around 2:30 p.m. on April 15, 2013, ML was found by Pedro Delgado, who testified that when he approached ML, the boy told him that "his dad killed his mom." Delgado asked ML where he lived, and ML walked Delgado to his house. Delgado testified that he looked under the door and saw a body lying on the floor. Delgado then went outside and called 911. Police were then dispatched to the home. Officers testified that they observed the victim lying on her back on the floor in the front bedroom. Officers then walked ML to his grandmother's house. One of the officers, Officer Busch, testified that while he attempted to keep conversation "light with little [ML]," the young boy told him that his mother had died and that he had seen his father hit her in the nose. Another officer also testified that he attempted to speak to ML only about subjects unrelated to the killing but that ML repeatedly stated "Dad just killed my mom." Upon arrival at ML's grandparents' house, Busch testified that ML told his grandfather that his mother had died. Detectives then arrived and took ML to a forensic interview.
ML was then given a forensic interview by Barb Andrews. Andrews testified that she asked ML how his mom had died and that he answered "[d]addy beat her up." She asked him whether he saw this happen, and he answered, "Yes." Defense counsel asked Andrews if at any point in the interview ML suggested that he saw defendant choke the victim, and she answered, "No." Officers testified that they suspected whoever killed the victim had stolen her car because the car was not located at the house and because neighbors told them that when the victim was home her car was usually parked in the front. The victim's car, a 2002 Dodge Neon, was found abandoned in Lansing, eight days later. DNA was collected from the vehicle, and the lab analysts were able to identify the major donor as the victim. Lab analysts were also able to identify the presence of a second donor. However, the lab analysts testified that they were not able to collect a sufficient amount of DNA from the second donor to make an identification. The medical examiner testified that the cause of death was "manual strangulation," but that there was no physical injury to the nose or eyes and no indication that the victim had been beaten or kicked. Forensic biologists testified that fingernail clippings were taken from the victim that contained small amounts of DNA though not enough "to be tested under the normal nuclear DNA testing."
The forensic biologists that assisted the investigation testified that because the male DNA taken from the victim's fingernails could not be tested under normal nuclear DNA testing, a technique called Y-STR testing was used that looks only at male DNA. The biologist who performed the Y-STR testing in this case testified that she found that there was DNA from more than one male present but that the "major donor" matched the DNA of defendant. On cross-examination, the biologist further explained that Y-STR DNA is inherited completely through the paternal line, so a man's father, paternal grandfather, and sons will all have identical Y-STR DNA.
Defendant argues that he was denied his right to a fair trial when the trial court allowed the prosecution to present this Y-STR DNA evidence without accompanying statistical evidence as required by our opinion in People v Coy, 243 Mich.App. 283, 294, 301-302; 620 N.W.2d 888 (2000). Because defendant's trial counsel did not object to the introduction of DNA evidence or to the arguments made by the prosecution at trial regarding the DNA evidence, this issue is unpreserved, People v Grant, 445 Mich. 535, 546; 520 N.W.2d 123 (1994), and our review is limited to plain error affecting a substantial right. People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). This requires a "showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id.
In Coy, we addressed MRE 702
The DNA evidence in the present case does not suffer from the same flaws as the DNA evidence in Coy. The expert testified that the DNA belonged to defendant, his son, his father or his grandfather. Unlike the situation in Coy, this was not generalized testimony that the DNA could have come from defendant; rather, it was testimony that it came from either defendant or a living male son or ancestor. Given the absence of evidence that defendant's father or grandfather had any involvement in the case, this testimony narrowed the sources of the DNA to either defendant or his son. That the DNA belonged to either defendant or his son was sufficiently specific for the jury to consider it and assign it whatever weight it concluded the evidence deserved. The evidence was relevant, at least to show that no male, other than defendant and the child, was the major donor of the DNA on the victim's fingernails.
"The test for determining the sufficiency of evidence in a criminal case is whether the evidence, viewed in a light most favorable to the people, would warrant a reasonable juror in finding guilt beyond a reasonable doubt." People v Nowack, 462 Mich. 392, 399; 614 N.W.2d 78 (2000). "[A] reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict." Id. at 400. "The evidence is sufficient to convict a defendant when a rational factfinder could determine that the prosecutor proved every element of the crimes charged beyond a reasonable doubt." People v Cain, 238 Mich.App. 95, 117; 605 N.W.2d 28 (1999).
The enumerated felonies in MCL 750.316(b) are:
The thrust of defendant's argument is that there was insufficient evidence to support the third element of felony murder, i.e., that defendant killed the victim during the commission of one of the enumerated felonies. Defendant presents two alternative arguments: (1) that no larceny was proven, and (2) that, even if a larceny was proven, defendant did not form the intent to steal the victim's property until after the killing.
While defendant does not contest that there was sufficient evidence to convict him of UDAA, UDAA is not an enumerated felony in the felony murder statute and defendant correctly asserts that UDAA is not a form of larceny because it does not require the intent to permanently deprive the owner of his or her property. "The essential elements of UDAA are (1) possession of a vehicle, (2) driving the vehicle away, (3) that the act is done wilfully [sic], and (4) the possession and driving away must be done without authority or permission." People v Hendricks, 200 Mich.App. 68, 71; 503 N.W.2d 689, 691 (1993), aff'd 446 Mich. 435 (1994). Larceny on the other hand requires the following elements: "(a) a trespassory taking and (b) the carrying away (c) of the personal property (d) of another (e) with intent to steal that property." People v March, 499 Mich. 389, 401; ___ NW2d ___ (2016). UDAA is not a form of larceny. People v Goodchild, 68 Mich.App. 226, 233; 242 N.W.2d 465 (1976).
However, that UDAA is not an enumerated felony and not a form of larceny is not controlling because we have previously held that Michigan's felony-murder statute has "no additional requirement that the defendant be charged and convicted of the underlying felony." People v Seals, 285 Mich.App. 1, 16; 776 N.W.2d 314 (2009). The jury only need to find that the defendant killed the victim "while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in [MCL 750.316(b).]" Nowack, 462 Mich at 401. In the present case, the trial court instructed the jury on felony murder as follows:
Based on the testimony of ML and the statement of the neighbor who spoke to officer Wortley, it would be rational to conclude that defendant took the victim's car after killing her. However, defendant asserts that because the car was abandoned, there was no evidence of intent to permanently deprive the owner of the car. Defendant's argument is logically flawed. That defendant later abandoned the car does not negate the possibility that he intended to steal it at the time he took it away. It is reasonable to conclude that he formed the intent to steal the car, took the car, used it for his own purposes, and later decided to abandon it. See People v Jones, 98 Mich.App. 421, 423-426; 296 N.W.2d 268 (1980) (finding evidence sufficient to prove larceny where the defendants took a ring from a jewelry store and the ring was found in the parking lot several hours later), and People v Williams, 63 Mich.App. 531, 532-534; 234 N.W.2d 689 (1975) (stating that abandonment of an attempt to remove goods from a store was not a defense when the intent to steal was formed at the time of taking possession).
That the jury was instructed with respect to the UDAA charge that it "[d]oes not matter whether the defendant intended to keep the vehicle" is also not controlling in the circumstances of this case. That was the proper instruction for UDAA. The separate instruction for felony murder was also given and that instruction correctly stated that the jury must find that defendant committed the crime of larceny and instructed the jury that in order to find a larceny it must find that "at the time the property was taken, the defendant intended to permanently deprive the owner of the property." Jurors are presumed to follow their instructions, People v Graves, 458 Mich. 476, 486; 581 N.W.2d 229 (1998), so presumably the jury found that the crime of larceny had been committed.
Defendant is correct that "[t]he felony-murder doctrine does not apply if the intent to steal the victim's property was not formed until after the homicide." People v Orlewicz, 293 Mich.App. 96, 111; 809 N.W.2d 194 (2011). It appears that the jury had some confusion around this issue because they submitted a question to the Court that was presented on the record as follows:
While it is an element of the crime of felony murder that the intent to commit the underlying felony, in this case larceny, be formed prior to the homicide, intent "may be inferred from all the facts and circumstances," including the defendant's actions, People v Cameron, 291 Mich.App. 599, 615; 806 N.W.2d 371 (2011). Because proving a defendant's state of mind is difficult, "minimal" circumstantial evidence may prove intent. People v Kanaan, 278 Mich.App. 594, 622; 751 N.W.2d 57 (2008). The jury was presented with evidence that defendant was a fugitive from justice in connection with a "serious felony" at the time of the victim's murder and that defendant had attempted to borrow the victim's car in the past. From this evidence, the jury could infer that defendant formed the intent to take the victim's car as a means of continuing to elude capture and killed the victim when she refused to allow him to do so. Defendant does not argue that either the instruction on felony murder or the clarifying instruction were inadequate. Nor does he argue that the jury did not properly understand the issue. In this case, we find that there was sufficient evidence to support the jury's verdict.
MCL 768.20(1) provides as follows:
Defendant's amended alibi notice stated that the evidence would show that "[d]efendant was not in the state of Michigan on the date and time in question, and he was in, or en route to, the state of Texas[,]" and it listed two potential witnesses for defendant to call at trial stating that both would testify that they received telephone calls from defendant on the date of the incident from an out of state telephone number. The amended alibi notice also stated that defendant had subpoenaed documents from Sprint regarding the targeted out of state number belonging to defendant.
The trial court correctly struck this amended notice as being deficient and not in compliance with the statute. The notice did not contain "specific information as to the place at which the accused claims to have been at the time of the alleged offense," MCL 768.20(1), because it simply stated that defendant "was in, or in route to, the State of Texas." Being in or in route to the State of Texas is not specific information regarding defendant's location at the time of the incident because it essentially means that defendant could have been anywhere provided he was headed in the general direction of the State of Texas at the time. Additionally, the fact that the two witnesses would have simply testified that defendant called them from an out of state number is effectively meaningless given the ubiquity of cell phones, and the alibi notice did not allege that he had called from a land line. While defendant has a constitutionally guaranteed right to present a defense, he "must still comply with `established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.'" People v Hayes, 421 Mich. 271, 279; 364 N.W.2d 635 (1985) quoting Chambers v Mississippi, 410 U.S. 284, 302; 93 S.Ct. 1038; 35 L Ed 2d 297 (1973). Defendant failed to comply with the requirements of the statute and was not denied his constitutional right to present a defense.
Defendant argues that a statement made by Officer Busch during his testimony violated the trial court's ruling limiting the testimony that could be given regarding the reason defendant was a fugitive at the time of the death of the victim.
Officer Busch's testimony was the subject of a pretrial dispute regarding whether the prosecutor could introduce evidence that on the date of the killing, defendant was a fugitive from justice and wanted in connection with another murder in Saginaw. The trial court initially stated that it would not allow any reference to that other case. The trial court then stated:
The jury was then instructed before the start of the trial as follows:
The prosecution called the investigating officer, Officer Busch, as a witness, and Busch gave testimony that clearly went outside the limits imposed by the court. Busch identified a picture of ML and his father, defendant, that he testified had been hanging on the wall in the home. Busch testified about the picture as follows:
Defendant does not argue that the prosecutor's questions were improper and does not assert that they were intended to solicit the officer's prejudicial statements, and we have held that "an unresponsive, volunteered answer to a proper question is not grounds for granting of a mistrial." People v Haywood, 209 Mich.App. 217, 228; 530 N.W.2d 497 (1994). However, defendant argues that the officer's statement was so prejudicial as to violate defendant's right to a fair trial. Moreover, as the record reflects, defense counsel made a timely objection and, given its prior ruling, the trial court should have sustained the objection and considered whether to direct the jury to disregard what it had just heard.
We must therefore determine whether, under the circumstances of this case, the officer's unsolicited statement and the trial court's failure to immediately address that statement require reversal as having denied defendant a fair trial. Taking all the evidence into account, we conclude that it does not. First, the officer did not testify that defendant had committed a prior murder; rather the officer's statement was that defendant was "wanted" in connection with a "homicide." While this did carry significant potential for prejudice, it was not as great as a statement that defendant had previously committed murder. Second, the jury was already informed, and properly so, that defendant was a fugitive in a case involving a "serious crime." Third, the trial court did eventually provide a curative instruction before deliberations, advising the jury that:
Finally, the evidence that defendant murdered the victim was very strong, and we see no likelihood that this one improper statement, rather than that evidence, led to defendant's conviction. There was a highly credible eyewitness to the crime, i.e. the victim's child, who saw and heard the altercation. In addition to his testimony, several other witnesses testified that on the day of the victim's death, ML stated without being prompted that "daddy" (i.e., defendant) killed his mother. Moreover, there was no evidence suggesting that anyone else might have committed the murder. Officers also testified that there were no signs of forced entry into the home suggesting that someone with access to the home was the killer; no belongings (other than the car) were stolen; the victim was not sexually assaulted; and no other adult male left any DNA traces. Accordingly, there was ample evidence for the jury to conclude that defendant was in fact guilty beyond a reasonable doubt without consideration of the officer's improper statement.
Affirmed. We do not retain jurisdiction.
