              If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                   revision until final publication in the Michigan Appeals Reports.




                            STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     June 11, 2019
                 Plaintiff-Appellee,

v                                                                    No. 338951
                                                                     Iron Circuit Court
KELLY MARIE COCHRAN,                                                 LC No. 16-009635-FH

                 Defendant-Appellant.


Before: JANSEN, P.J., and BECKERING and M. J. KELLY, JJ.

PER CURIAM.

        Defendant appeals as of right her jury trial convictions of first-degree murder, MCL
750.316;1 larceny in a building, MCL 750.360; conspiracy to mutilate a dead body, MCL
750.157a and MCL 750.160; concealing the death of a person, MCL 333.2841(3); and lying to a
peace officer, MCL 750.479c(2)(d). The trial court sentenced her to life imprisonment without
parole for first-degree murder, 2½ to four years’ imprisonment for larceny in a building, 6 to 10
years’ imprisonment for conspiracy to mutilate a dead body, three to five years’ imprisonment
for concealing the death of a person, and 2½ to four years’ imprisonment for lying to a peace
officer. We affirm, but remand this case for the ministerial task of correcting an obvious
typographical error in the judgment of sentence.

        Defendant’s convictions arise from the killing of Christopher Regan in Caspian,
Michigan. Regan disappeared on October 14, 2014. A missing-person case was initiated on
October 27, 2014, but was unsuccessful. Defendant had been Regan’s lover, and was a suspect
in his disappearance. On May 17, 2016, she led authorities to a tree on a hiking trail in Iron
County, Michigan, and Regan’s skull was recovered nearby. At trial, the prosecutor presented
evidence that defendant aided her now-deceased husband, Jason Cochran (Jason), in killing
Regan on October 14, 2014; aided Jason in cutting up Regan’s body; concealed Regan’s death;
stole Regan’s camera; and lied to the police. Throughout the course of the police investigation,


1
    An aiding-and-abetting theory was submitted to the jury for the murder charge.



                                                 -1-
defendant gave many versions of the events surrounding Regan’s disappearance and death. But
at trial, she ultimately testified that Jason killed Regan, and any role that she played was due to
her fear of Jason. The prosecutor, however, presented evidence that defendant played an active
and willing role in the murder, and that defendant, not Jason, was the more dominant person in
the Cochran marriage. During closing arguments, defense counsel mentioned the theory of
coercion by Jason, but also relied heavily on the fact that defendant was an admitted and
repeated liar, stating that the jury could not really believe anything that she said, including any
version of the events of October 14, 2014.

        On appeal, defendant argues that the trial court erred by allowing the admission of
evidence under MRE 404(b) regarding (1) defendant’s claims of being a serial killer, and her
related claims that she or Jason had a so-called “trophy bag” or “trinket bag” with items relating
to prior murders (henceforth referred to as “the serial-killer statements”), and (2) defendant’s act
of making shanks, or homemade weapons, of out her eyeglasses while in jail.

         We review for an abuse of discretion a trial court’s decision regarding the admission of
evidence. People v Watkins, 491 Mich 450, 467; 818 NW2d 296 (2012). “A trial court abuses
its discretion when it chooses an outcome falling outside the range of principled outcomes.” Id.

       MRE 404(b) states:

               (1) Evidence of other crimes, wrongs, or acts is not admissible to prove
       the character of a person in order to show action in conformity therewith. It may,
       however, be admissible for other purposes, such as proof of motive, opportunity,
       intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
       or absence of mistake or accident when the same is material, whether such other
       crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
       conduct at issue in the case.

               (2) The prosecution in a criminal case shall provide written notice at least
       14 days in advance of trial, or orally on the record later if the court excuses
       pretrial notice on good cause shown, of the general nature of any such evidence it
       intends to introduce at trial and the rationale, whether or not mentioned in
       subparagraph (b)(1), for admitting the evidence. If necessary to a determination
       of the admissibility of the evidence under this rule, the defendant shall be required
       to state the theory or theories of defense, limited only by the defendant’s privilege
       against self-incrimination.

        The parties spend considerable time on appeal discussing whether the serial-killer
statements satisfied the standard for admissibility under MRE 404(b). The prosecutor contends,
however, that MRE 404(b) may not even be implicated in connection with this evidence, because
it concerns solely what defendant said. The prosecutor implies that the serial-killer statements
might instead constitute admissible statements of a party opponent. See MRE 801(d)(2). In
addition, while the prosecutor set forth theories of admissibility under MRE 404(b) during the
proceedings below, she also stated, “This is something that came from the defendant herself and
I believe is an admission, as well.” The trial court ruled: “[F]or the reasons stated by the


                                                -2-
prosecutor, I’m going to allow that evidence in, which came from the mouth of the defendant in
the course of several interviews.”

         The Supreme Court has noted that a prior statement, itself, is not a “prior act.” People v
Goddard, 429 Mich 505, 518, 523; 418 NW2d 881 (1988). In People v Rosen, 136 Mich App
745, 748, 751; 358 NW2d 584 (1984), a cocaine-delivery case, a person named Denise Beach
testified that she had asked the defendant if she could get Beach a quantity of an unspecified
substance that Beach had “gotten before.” Beach then testified that the defendant said, “[Y]es.”
Id. The trial court overruled the defense objection that this line of testimony regarding
something “gotten before” constituted inadmissible evidence of a prior bad act, stating that the
testimony was admissible as an admission of a party opponent. Id. at 751-752. The trial court
then allowed Beach to testify that the substance that she was referring to in her conversation with
defendant, that she had obtained in the past before the charged offense, was cocaine. Id. at 752.
On appeal, the defendant argued that the evidence of this prior cocaine delivery was inadmissible
under MRE 404(b), and this Court agreed. Id. at 752-753, 755. See also People v Milton, 186
Mich App 574, 576; 465 NW2d 371 (1990) (“a statement of general intent is not a prior act for
the purposes of MRE 404(b). Rather, as a statement of a party-opponent, admissibility is
determined by the statement’s relevancy and by whether its probative value is outweighed by its
possible prejudicial effect.”).

        We conclude that the statements about defendant being a serial killer and having an
associated trophy bag were not “other acts” under MRE 404(b) because, in clear contrast to
Rosen, it is obvious that no party was attempting to seriously assert that the acts encompassed by
defendant’s statements had actually occurred. Iron River Police Department Chief Laura Frizzo,
a key prosecution witness, testified that she never found any evidence that the trinket bag
existed. A volunteer investigator testified that a trinket bag was not found, as did Officer Jeremy
Ogden from the Hobart Police Department in Indiana, 2 another key witness for the prosecution.
Ogden testified that the prosecutor’s office found nothing useful in defendant’s list of people
allegedly killed by defendant or Jason, and, significantly, Ogden said that he did not even go
through the list because “it’s all part of her game.” Sergeant Steven Houck, a detective with the
Hobart Police Department, testified that no bodies were recovered in the areas specified by
defendant. Houck indicated that the discussion of other murders was not productive because
defendant did not give details, last names, or places, and he testified that no trucker was ever
killed as claimed by defendant. Ogden testified that he had the sense that defendant, by
mentioning these supposed other murders, “was leading us on a wild goose chase in order to
divert attention from” the Regan investigation. Ogden believed that defendant’s statement about
a murdered trucker was “part of the game,” “pointing me in the direction to have to do more
work that, you know, isn’t really related to anything.” Ogden felt that defendant was viewing the




2
  Defendant and Jason moved to Michigan from Indiana, and moved back to Indiana after the
police searched their Michigan home in connection with Regan’s disappearance. Ogden
developed a rapport of sorts with defendant, and greatly assisted the Michigan authorities in their
investigation of the Regan case.


                                                -3-
investigation as a game of chess. Ogden described defendant as “the most difficult person I’ve
ever interviewed in my entire career.”

        The testimony as presented by the prosecutor’s own key witnesses makes clear that the
prosecutor was not attempting to prove that defendant actually committed these other murders or
actually had a trinket bag; instead, the prosecutor was using the serial-killer statements to show
how defendant was “playing” with the authorities. In our view, the statements were not “other
acts” under MRE 404(b), but were admissions of a party opponent under MRE 801(d)(2)(A), and
the pertinent questions, then, are merely whether the statements were relevant, MRE 401, and
whether their probative value was substantially outweighed by the danger of unfair prejudice,
MRE 403.

        MRE 401 defines “relevant evidence” as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” That defendant made up stories about
serial murders and a trinket bag in order to engage in gamesmanship with the authorities tended
to disprove her theory of being an intimidated, abused spouse. It furthered the prosecutor’s
theory that defendant engaged in manipulation and misdirection throughout the entire case,
starting with her ruse of luring Regan to her home, using Jason’s telephone, under the pretense of
a dinner invitation. In addition, the evidence was not more prejudicial than probative because no
one indicated that these other murders actually occurred, or that the trophy bag ever existed. As
such, the evidence consisted merely of a few more lies by defendant amidst an enormously large
collection of lies—lies that defense counsel himself emphasized in his closing argument.

        Even assuming, for purposes of argument, that defendant’s “acts” of making the serial-
killer statements should be classified as “other acts” under MRE 404(b), we would still deem
them admissible. MRE 404(b)(1) states that evidence of other acts is “not admissible to prove
the character of a person in order to show action in conformity therewith,” but it may be
admissible for other purposes. The Supreme Court has set forth the following standard for
admission of other-acts evidence under MRE 404(b):

       First, that the evidence be offered for a proper purpose under Rule 404(b); second,
       that it be relevant under Rule 402[3] as enforced through Rule 104(b);[4] third, that
       the probative value of the evidence is not substantially outweighed by unfair
       prejudice; fourth, that the trial court may, upon request, provide a limiting
       instruction to the jury. [People v Denson, 500 Mich 385, 398; 902 NW2d 306
       (2017) (quotation marks and citation omitted).]



3
  MRE 402 provides, in pertinent part, that “[a]ll relevant evidence is admissible,” and
“[e]vidence which is not relevant is not admissible.”
4
  MRE 104(b) states: “When the relevancy of evidence depends upon the fulfillment of a
condition of fact, the court shall admit it upon, or subject to, the introduction of evidence
sufficient to support a finding of the fulfillment of the condition.”


                                                -4-
The list of purposes in MRE 404(b)(1) is not exhaustive. People v Starr, 457 Mich 490, 496;
577 NW2d 673 (1998). “It is a rule of inclusion that contains a nonexclusive list of
‘noncharacter’ grounds on which evidence may be admitted.” Id. The rule “permits the
admission of evidence on any ground that does not risk impermissible inferences of character to
conduct.” Id.

        As noted, the trial testimony revealed that the other acts in question were defendant’s
false claims of being a serial killer, not evidence that she (or Jason) had in fact committed other
murders. And the prosecutor argued before trial that the serial-killer evidence was admissible to
“negate [defendant’s] defense that she is a battered spouse or suffers from battered spouse
syndrome.” This was a proper, noncharacter purpose for introducing the evidence. See,
generally, Denson, 500 Mich at 399 (stating that other-acts evidence may be introduced to rebut
a defendant’s claimed state of mind). In addition, the evidence was relevant because, if
defendant was shrewd enough to continuously engage in gamesmanship with the authorities, this
tended to rebut her defense of having been manipulated and controlled by Jason. Also, the
evidence was not more prejudicial than probative because no one indicated that these other
murders actually occurred, or that the trophy bag ever existed. The evidence consisted merely of
more lies by defendant amidst a vast number of additional lies. Finally, to the extent that the lies
nevertheless made reference to serious crimes, the trial court instructed the jury that it “must not
convict the defendant here because you think she is guilty of other bad conduct.” “Jurors are
presumed to follow the court’s instructions, and instructions are presumed to cure most errors.”
People v Mullins, 322 Mich App 151, 173; 911 NW2d 201 (2017).

        In sum, whether viewed as admissions by a party opponent or as other-acts evidence, the
serial-killer statements were admissible.

        With regard to the evidence of shanks that defendant made out of her glasses while
imprisoned, the prosecutor offered this evidence to show, in part, consciousness of guilt, which is
a proper purpose for admitting evidence. See, e.g., People v Compeau, 244 Mich App 595, 598;
625 NW2d 120 (2001) (discussing consciousness of guilt). In addition, this evidence was
relevant. In Compeau, the defendant argued that the trial court erred by admitting “evidence of
his planned jail escape to show consciousness of guilt.” Id. The Court disagreed, stating, “It is
well established that evidence of flight is admissible to show consciousness of guilt.” Id. The
Court noted that “[t]he term ‘flight’ includes attempting to escape from custody,” and it further
noted that “[t]he remoteness of the flight from the time of defendant’s arrest did not affect the
admissibility of the evidence, but was relevant only to the weight of the evidence.” Id. In the
present case, a jail supervisor testified that he thought that defendant was intending to stab a
female guard, or try to escape. Frizzo testified that defendant told her that defendant “considered
stabbing the female correction officer with” the shanks. Defendant admitted that she told a
police officer that she intended to hurt a guard with the shanks. Under these circumstances, the
evidence was relevant under the rationale of Compeau.

       In addition, the probative value of the evidence was not outweighed by the danger of
unfair prejudice. MRE 403. The Compeau Court concluded that “the probative value of the
evidence of the escape plan was not substantially outweighed by unfair prejudice,” stating that
MRE 403 “is not intended to prohibit prejudicial evidence, but only that which is unfairly
prejudicial.” Id. Here, too, the evidence was not unfairly prejudicial. Defendant explained on

                                                -5-
cross-examination that her intention in making the shanks had only been to hurt herself because
she “had had a rough go the last few years and had seen enough.” In addition, the prosecutor in
closing arguments emphasized that the shanks evidence was relevant to show defendant’s
consciousness of guilt, i.e., that her “back was against the wall.” In other words, the prosecutor
did not use the shanks evidence to show that defendant was violent in general. Moreover, as
noted, the court instructed the jury that it “must not convict the defendant here because you think
she is guilty of other bad conduct,” and the jury is presumed to follow jury instructions, Mullins,
322 Mich App at 173. Under all of the circumstances, the trial court did not abuse its discretion
by admitting the evidence of the shanks.5

       In addition, even assuming, for purposes of argument, that admission of the other-acts
evidence was erroneous, it was harmless under the circumstances of the case. As stated in
Denson, 500 Mich at 409 (quotation marks and citations omitted), erroneous admission of other-
acts evidence is not a ground for reversal unless it affirmatively appears that, “more probably
than not, it was outcome determinative—i.e., that it undermined the reliability of the verdict.”

        That Jason killed Regan was clearly established during the trial testimony. The
prosecutor presented evidence of defendant’s admissions of having been a willing participant in
the murder, and assisting Jason in mutilating Regan’s body.6 The prosecutor also presented
evidence that defendant was the more dominant person in the Cochran marriage. Moreover, the
evidence that defendant had a “murder pact”7 with her husband is not being challenged on
appeal. In addition, that defendant was a liar was demonstrated repeatedly during the course of
the proceedings, in the context of areas aside from the serial-killer evidence. Evidence of
additional lies by way of the serial-killer statements was not likely to have affected the outcome
of the proceedings given all of the other evidence presented.

        In light of the “murder pact” and the substantial additional evidence of defendant’s guilt
(including her many, many lies), it is not likely that evidence of the shanks affected the outcome
of the proceedings either, especially given defendant’s explanation during her testimony that she
intended to use the shanks only to harm herself because she “had had a rough go the last few
years and had seen enough.”

       We affirm defendant’s convictions and sentences, but note that the judgment of sentence
contains a typographical error. The amended judgment of sentence reflects a sentence of six


5
  We reject defendant’s claim on appeal that the trial court’s findings regarding admission of the
other-acts evidence were insufficient to enable appellate review. We are able to examine the
rationales provided by the trial court, and determine whether the trial court abused its discretion
by admitting the evidence. The trial court incorporated by reference the reasons for admission
provided by the prosecutor; while some of these reasons were inappropriate, some were not.
6
 The prosecutor also presented ample evidence of defendant’s larceny and concealment of
Regan’s death, and that defendant lied to authorities is not in any serious dispute.
7
  By way of this pact, defendant and Jason agreed that if either of them had an extramarital affair,
the lover should be killed.


                                                -6-
months’ to four years’ imprisonment for larceny, but the trial court actually sentenced defendant
to 2½ to four years’ imprisonment for that crime. We direct the court to correct the error on
remand.

      Affirmed, but remanded for the ministerial task of correcting the judgment of sentence.
We do not retain jurisdiction.



                                                           /s/ Kathleen Jansen
                                                           /s/ Jane M. Beckering
                                                           /s/ Michael J. Kelly




                                               -7-
