                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 22, 2018
              Plaintiff-Appellee,

v                                                                  No. 335734
                                                                   Oakland Circuit Court
BETHANY ANNE COTTONE,                                              LC No. 2016-258583-FH

              Defendant-Appellant.


Before: RIORDAN, P.J., and BOONSTRA and GADOLA, JJ.

PER CURIAM.

         Defendant appeals by right her convictions, following a bench trial, of second-degree
retail fraud, MCL 750.356(d)(1)(a), and resisting or obstructing a police officer, MCL 750.81d.
The trial court sentenced her to one year in jail, 1 with 227 days credit for time served. We
affirm.

                  I. PERTINENT FACTS AND PROCEDURAL HISTORY

       Defendant was stopped by police at a clothing store located in Oak Park. Defendant had
concealed numerous articles of clothing on her person that store employees identified as store
merchandise. A purse belonging to the store was stuffed inside her pants with the strap hanging
out; the purse contained price tags and clothing sensors matching some of the items found
concealed on defendant’s person.

       Police officers testified that defendant was uncooperative when they attempted to escort
her out of the store; she went limp, cursed, and kicked the officers. She also spit at them and
attempted to kick the windows out of the police vehicle. Defendant continued to resist during
the booking process, requiring the use of a “spit hood.”

       Defendant testified that she had purchased clothing from the Salvation Army earlier that
day, and that all of the items recovered belonged to her. She testified that she had accidentally


1
  The trial court also ordered that defendant be allowed to participate in a mental health jail-
diversion    program      called    Jail   Alliance   with     Support     (JAWS).          See
https://www.oakgov.com/sheriff/Pages/jail/programs.aspx (last visited January 11, 2018).

                                               -1-
placed some price tags and sensors in a purse that she owned while assisting store personnel in
cleaning out a fitting room. Defendant denied resisting arrest and testified that the officers
punched, kneed, and kicked her without provocation.

       Defendant was convicted as described. This appeal followed. On appeal, defendant
challenges only the effectiveness of her counsel with respect to her retail fraud conviction.

                                  II. STANDARD OF REVIEW

        A defendant may preserve the issue of ineffective assistance of counsel by making a
timely motion for a new trial or a Ginther2 hearing. People v Foster, 319 Mich App 365, 390;
901 NW2d 127 (2017), citing People v Sabin (On Second Remand), 242 Mich App 656, 658-
659; 620 NW2d 19 (2000). In this case, defendant did not move the trial court for a new trial
and did not request an evidentiary hearing; our review is therefore “limited to mistakes apparent
on the appellate record.” Foster, 319 Mich App at 390 (quotation marks and citation omitted);
see also Sabin, 242 Mich App at 659, citing People v Marji, 180 Mich App 525, 533; 447 NW2d
835 (1989).

        “The determination whether a defendant has been deprived of the effective assistance of
counsel presents a mixed question of fact and constitutional law.” People v Lockett, 295 Mich
App 165, 187; 814 NW2d 295 (2012), citing People v LeBlanc, 465 Mich 575, 579; 640 NW2d
246 (2002). We review de novo the trial court’s constitutional determinations and review for
clear error its factual determinations. Lockett, 395 Mich App at 186, citing LeBlanc, 465 Mich at
579.

                                          III. ANALYSIS

        Defendant argues that she was denied the effective assistance of counsel because her
attorney failed to move for a directed verdict based upon insufficient evidence at the close of the
prosecution’s case-in-chief, before her own testimony provided the evidence necessary to convict
her of retail fraud. We disagree.

         To establish an ineffective assistance of counsel claim, a defendant must show
         that (1) counsel’s performance was below an objective standard of reasonableness
         under prevailing professional norms and (2) there is a reasonable probability that,
         but for counsel’s error, the result of the proceedings would have been different.
         People v Davenport, 280 Mich App 464, 468; 760 NW2d 743 (2008). A
         defendant must also show that the result that did occur was fundamentally unfair
         or unreliable. Id. [Lockett, 295 Mich App at 187.]

“ ‘Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.’ ” People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009), quoting
People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). “[C]ounsel is not


2
    People v Ginther, 390 Mich 436, 443-444; 212 NW2d 922 (1973).

                                                 -2-
ineffective for failing to make a futile motion.” Foster, 319 Mich App at 391, citing Sabin, 242
Mich App at 660.

        In deciding a motion for a directed verdict, the trial court must “consider in the light most
favorable to the prosecution the evidence presented up to the time the motion is made and
determine whether a rational trier of fact could have found that the essential elements of the
crime were proved beyond a reasonable doubt.” People v Schultz, 246 Mich App 695, 702; 635
NW2d 491 (2001), citing People v Vincent, 455 Mich 110, 121; 565 NW2d 629 (1997).
“ ‘Circumstantial evidence and reasonable inferences arising from [the] evidence can constitute
satisfactory proof of the elements of a crime.’ ” People v Carines, 460 Mich 750, 757; 597
NW2d 130 (1999), quoting People v Allen, 201 Mich App 98, 100; 505 NW2d 869 (1993).
Regarding the element of intent, “[t]his Court has consistently observed that ‘[b]ecause of the
difficulty of proving an actor’s state of mind, minimal circumstantial evidence is sufficient.’ ”
People v Ericksen, 288 Mich App 192, 198-197; 793 NW2d 120 (2010), quoting People v
McRunels, 237 Mich App 168, 181; 603 NW2d 95 (1999).

        Defendant argues that until she testified at trial there was insufficient evidence that
defendant had the intent to steal that is requisite to a second-degree retail fraud conviction. We
disagree. The prosecution provided sufficient evidence in its case-in-chief for the trial court to
find the essential elements of retail fraud beyond a reasonable doubt.

        Second-degree retail fraud is proscribed by MCL 750.356d, which provides in pertinent
part:

        (1) A person who does any of the following in a store or in its immediate vicinity
        is guilty of retail fraud in the second degree, a misdemeanor punishable by
        imprisonment for not more than 1 year or a fine of not more than $2,000.00 or 3
        times the value of the difference in price, property stolen, or money or property
        obtained or attempted to be obtained, whichever is greater, or both imprisonment
        and a fine:

        (a) While a store is open to the public, alters, transfers, removes and replaces,
        conceals, or otherwise misrepresents the price at which property is offered for sale
        with the intent not to pay for the property or to pay less than the price at which the
        property is offered for sale if the resulting difference in price is $200.00 or more
        but less than $1,000.00. [MCL 750.356d(1).]

Therefore, to convict defendant of second-degree retail fraud, the prosecution was required to
prove that (1) defendant took or concealed property offered for sale by the store, (2) defendant
moved the property with (3) the intent to steal the property, (4) the theft occurred inside or in the
immediate vicinity of the store, and (5) the price of the property was greater than $200 and less
than $1,000. MCL 750.356d(1)(a); see also M Crim JI 23.13. Defendant only challenges the
sufficiency of the evidence that she intended to steal the property.

       This Court has previously held that “[i]ntent may be inferred from all the facts and
circumstances.” People v Cameron, 291 Mich App 599, 615; 806 NW2d 371 (2011), citing
People v Hawkins, 245 Mich App 439, 458; 628 NW2d 105 (2001), and People v Strong, 143
Mich App 442, 452; 372 NW2d 335 (1985). “Because of the inherent difficulty of proving a
                                            -3-
defendant’s state of mind, only minimal circumstantial evidence from which intent may be
inferred need be presented.” Cameron, 291 Mich at 615, citing Strong, 143 Mich App at 452,
and People v Bowers, 136 Mich App 284, 297; 356 NW2d 618 (1984). People v Hardiman, 466
Mich 417, 428; 646 NW2d 158, 165 (2002). The circumstantial evidence introduced by the
prosecution was more than sufficient for the trial court to reasonably infer that defendant
intended to steal the merchandise concealed on her person.

         The store manager testified that she saw the strap of a purse sold by the store hanging
from the back of defendant’s pants while defendant was in the check-out line. The manager also
testified that she witnessed police officers pulling store merchandise from defendant’s pockets,
and that defendant had concealed additional store merchandise underneath her clothing. At least
some of the tags and security sensors from the items recovered from defendant were found inside
the purse that had been stuffed into defendant’s pants. The manager’s testimony regarding
defendant having concealed store merchandise was then corroborated by the testimony of the
arresting police officers. This circumstantial evidence, even without defendant’s testimony,3 was
sufficient to support the inference that defendant intended to leave the store without paying for
the items. See, e.g., People v Frey, 168 Mich App 310, 312, 319-320; 424 NW2d 43 (1988)
(defendant’s concealment of cigarettes inside other packaging while in a store was circumstantial
evidence of his intent to steal them) Accordingly, a motion for a directed verdict would have
been futile. Defense counsel is not ineffective for failing to make a futile motion. Foster, 219
Mich App at 391, citing Sabin, 242 Mich App at 660.

        Finally, to the extent that defendant argues that her counsel was ineffective for allowing
her to testify, this argument is without merit. “[T]he ultimate decision whether to testify at trial
remains with the defendant.” People v Bonilla-Machado, 489 Mich 412, 419; 803 NW2d 217
(2011), citing Jones v Barnes, 463 US 745, 751; 103 S Ct 3308; 77 L Ed 2d 987 (1983). In this
case, the trial court advised defendant of her right not to testify, and defendant expressed that it
was still her desire to testify after speaking with counsel. Defendant fails to explain how her
decision to testify was anything other than her own informed, personal choice. And again, in any
event, the prosecution’s case-in-chief presented sufficient evidence to support her retail fraud
conviction.

       Affirmed.



                                                             /s/ Michael J. Riordan
                                                             /s/ Mark T. Boonstra
                                                             /s/ Michael F. Gadola




3
  Defendant argues that her testimony that she owned the items was what prompted the trial court
to conclude that she did not intend to pay for them. The trial court never articulated such a
rationale.

                                                -4-
