                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 27, 2018
                Plaintiff-Appellee,

v                                                                  No. 327491
                                                                   Wayne Circuit Court
DARRELL WILDER, also known as DARRELL                              LC No. 14-004600-FH
JOHN WILDER, also known as DARRELL J.
WILDER,

                Defendant-Appellant.



                                         ON REMAND


Before: BORRELLO, P.J., and MARKEY and RIORDAN, JJ.

PER CURIAM.

        This case returns to this Court on remand from our Supreme Court. Defendant appeals as
of right his jury trial convictions of felon in possession of a firearm (felon-in-possession), MCL
750.224f, and possession of a firearm during the commission of a felony (felony-firearm), third
offense, MCL 750.227b.1 Defendant was sentenced to five years’ probation for the felon in
possession conviction and 10 years’ imprisonment for the felony-firearm conviction. In our
previous opinion affirming defendant’s convictions, we concluded in relevant part that the trial
court did not err when it allowed the prosecutor to cross-examine defendant’s wife, Tameachi
Wilder, about her knowledge of defendant’s two prior felony-firearm convictions. People v
Wilder, unpublished per curiam opinion of the Court of Appeals, issued September 27, 2016
(Docket No. 327491) (Wilder I), pp 2-5, rev’d in part & remanded 502 Mich 57 (2018). Our
Supreme Court reversed “that part of the Court of Appeals’ judgment holding that the cross-
examination of defense witness Tameachi Wilder concerning whether she knew of defendant to
carry guns and her knowledge of defendant’s prior weapons convictions was not error.” People
v Wilder, 502 Mich 57, 60; 917 NW2d 276 (2018) (Wilder III). The case was remanded to this




1
    The jury found defendant not guilty of carrying a concealed weapon, MCL 750.227.


                                               -1-
Court to “consider whether the error was harmless.” Id. For the reasons set forth in this opinion,
we again affirm.

                                        I. BACKGROUND

        The underlying facts of this case are fully set forth in our prior opinion. Wilder I, unpub
op at 1-2. In sum, defendant was arrested and prosecuted after Detroit Police Officers Steven
Fultz and David Shaw saw defendant place a handgun in the trunk of a car. Id. The parties
stipulated at trial that defendant had a prior felony conviction and was not eligible to possess a
firearm at the time of his arrest. Id. at 2. At issue is the testimony of Tameachi, the pertinent
portion of which was summarized as follows by our Supreme Court in Wilder III, 502 Mich at
60-61:

       On direct examination, [Tameachi] testified that she did not see defendant with a
       gun when he left the house on the date in question, that to her knowledge he did
       not own a gun, and that she did not have any weapons in the house. She was not
       asked about and did not offer any other information about defendant’s history
       with guns.

               On cross-examination, the prosecutor did not question [Tameachi] about
       defendant’s possession and ownership of weapons on the day of the crime but
       instead asked three times whether [Tameachi] knew of defendant to carry guns.
       [Tameachi] responded “no” to each question.1 Over defendant’s objection, the
       trial court – which mischaracterized both the evidence on direct examination and
       [Tameachi] (referring to her as a character witness rather than a fact witness) –
       then permitted the prosecutor to question [Tameachi] about defendant’s prior
       weapons convictions.2
       _________________________________________________________________
       1
           The precise exchange was as follows:

                Q. Do you know of Mr. Wilder to carry weapons?

                A. No.

                Q. Do you know of him to carry guns?

                A. No.

              Q. You’ve been with him for nine years and you don’t know of him to
       carry guns?

                A. No.
       2
           The precise exchange concerning the first prior conviction was as follows:

              Q. And you know that he was convicted of carrying a weapon back then,
       correct?

                                                  -2-
                A. Yes.

                Q. So you knew that he carried weapons, right?

                A. No. I didn’t know but he was convicted.

                Q. Okay. You didn’t know that he—you didn’t see a weapon in your
       house?

                A. No.

                Q. Do you know the circumstances behind that?

                A. No.

       The prosecutor then asked about the second prior conviction, as follows:

             Q. And you know that he was convicted of having a weapon back in
       August of 2010 too, right?

                A. Yes.

                Q. Was that gun in your home?

             A. No.
       _________________________________________________________________

        The jury acquitted defendant of carrying a concealed weapon but found defendant guilty
of felon-in-possession and felony-firearm.

        Defendant appealed as of right to this Court, where he argued in relevant part that “the
trial court erred when it allowed the prosecutor to question Tameachi about her knowledge of
defendant’s prior firearms convictions because it allowed the presentation as inadmissible
‘character evidence’ under both MRE 404(b) and MRE 609.” Wilder I, unpub op at 3. We
concluded that this evidence was not inadmissible under MRE 404(b), and that the trial court did
not err by admitting the evidence, because the evidence of defendant’s prior convictions was
admitted for the noncharacter purpose of impeaching Tameachi’s testimony that defendant did
not carry guns and testing Tameachi’s veracity on this issue. Id. at 3-4. We further concluded
that MRE 609 was inapplicable because the prosecutor did not present evidence of Tameachi’s
prior convictions but instead presented evidence of Tameachi’s knowledge of defendant’s prior
convictions in order to show that Tameachi’s trial testimony contained contradictions and was
therefore not credible.2 Id. at 5. We affirmed defendant’s convictions.3 Id. at 1.



2
  MRE 609 provides requirements for “attacking the credibility of a witness” by introducing
“evidence that the witness has been convicted of a crime.” (Emphasis added.)


                                                -3-
       Defendant filed an application for leave to appeal in our Supreme Court. The Supreme
Court ordered oral argument on whether to grant the application and directed the parties to file
supplemental briefs “addressing: 1) whether the trial court erred by allowing the prosecutor to
cross-examine the defendant’s wife about his prior firearms-related convictions; (2) whether the
prosecutor improperly raised a collateral issue to admit evidence of the defendant’s prior felonies
through impeachment; and (3) whether any error was harmless. People v Wilder, 500 Mich 997
(2017) (Wilder II) (citations omitted).

        After having held oral argument on the application, our Supreme Court issued its opinion
reversing this Court’s judgment in part. Wilder III, 502 Mich at 60. The Court held that the
evidence of defendant’s prior convictions admitted through the prosecutor’s cross-examination
of Tameachi was not admissible under MRE 404. Id. at 63.

       First, our Supreme Court concluded that although “impeachment by contradiction can be
a proper purpose for the admission of other-acts evidence” under MRE 404(b)(1), the
prosecutor’s initial questions in this case “were not logically relevant to a proper purpose under
MRE 404(b) because they were not designed to elicit an answer contradicting any statements
made by the witness on direct examination.” Id. at 63-64, 65 (citation omitted). The Court
explained:

       As it pertained to weapons, the witness’s direct testimony was limited to whether
       defendant owned a gun or possessed one on the date in question. This testimony
       would not have been contradicted even if the witness had acknowledged
       “know[ing] of” defendant to more generally carry weapons. Thus, although the
       prosecutor articulated a proper purpose under MRE 404(b)—impeachment by
       contradiction—the prosecutor did not establish that the questions asked were
       logically relevant to impeachment. The prosecutor’s broad and repeated
       questions about defendant’s weapons-carrying proclivities were simply an attempt
       to elicit propensity evidence. [Id. at 65-66 (citation omitted).]

       Next, the Supreme Court stated that “[a]bsent a proper purpose, evidence of defendant’s
other acts was inadmissible under MRE 404(a) unless defendant opened the door by introducing
evidence of his good character.” Id. at 66. The Court explained that defendant “never opened
the door by eliciting testimony as to his good character from the defense witness on direct
examination” and that the “prosecutor’s tactic—i.e., shifting the focus from the pertinent facts to
which the witness testified on direct examination to a broader inquiry about defendant’s general
weapons proclivities—was an impermissible attempt by the prosecutor to open the subject of
defendant’s character.” Id. at 66-67. The Court concluded that the prosecutor’s attempt to elicit
character evidence about defendant on cross-examination of another witness when defendant had
never offered evidence of his own character was not permitted by MRE 404(a)(1). Id. at 67-68.



3
  We also rejected other arguments raised by defendant on appeal, but those issues are not
pertinent to the issue decided by our Supreme Court or the issue now before this Court on
remand from our Supreme Court.


                                                -4-
       Finally, our Supreme Court concluded that although “the prosecutor maintain[ed] that her
second set of questions regarding defendant’s prior firearm convictions was appropriate to
impeach the witness’s response to the first set of improper questions,” a party nonetheless
“cannot seek to elicit inadmissible character evidence on cross-examination when the opposing
party has not opened the door and then claim the right to impeach the elicited denial as a
subterfuge to elicit even more inadmissible character evidence.” Id. at 68. Accordingly, the
Supreme Court reversed “that part of the Court of Appeals’ judgment holding that the cross-
examination of defense witness Tameachi Wilder concerning whether she knew of defendant to
carry guns and her knowledge of the defendant’s prior weapons convictions was not error,” and
it remanded the matter to this Court “to consider whether the error was harmless.” Id. at 69-70.
The Supreme Court denied leave to appeal in all other respects. Id. at 70 n 19.

       On remand in this Court, we granted the parties’ joint motion to file supplemental briefs.
The parties filed their respective supplemental briefs; defendant argues that the error was not
harmless, while the prosecutor argues that the erroneously admitted evidence was not outcome
determinative.

                           II. APPLICABLE LEGAL PRINCIPLES

        Our Supreme Court, having concluded that the trial court erred by admitting the evidence
at issue, has instructed this Court to consider whether this evidentiary error was harmless.
“Preserved, nonconstitutional errors are subject to harmless-error review, governed by MCL
769.26[.]” People v Lyles, 501 Mich 107, 117; 905 NW2d 199 (2017). MCL 769.26 provides:

               No judgment or verdict shall be set aside or reversed or a new trial be
       granted by any court of this state in any criminal case, on the ground of
       misdirection of the jury, or the improper admission or rejection of evidence, or for
       error as to any matter of pleading or procedure, unless in the opinion of the court,
       after an examination of the entire cause, it shall affirmatively appear that the error
       complained of has resulted in a miscarriage of justice.

“[A] defendant carries the burden of showing that ‘it is more probable than not that the error was
outcome determinative.’ ” Lyles, 501 Mich at 117-118, quoting People v Lukity, 460 Mich 484,
495-496; 596 NW2d 607 (1999). “In making this determination, the reviewing court should
focus on the nature of the error in light of the weight and strength of the untainted evidence.”
Lyles, 501 Mich at 118 (quotation marks and citation omitted). “[W]hether admission of other-
acts evidence is harmless is a case-specific inquiry; the effect of an error should be determined
by the particularities of an individual case.” People v Denson, 500 Mich 385, 413 n 15; 902
NW2d 306 (2017). When considering whether an error was harmless, the question is whether
there would have been a “difference in the outcome” had the error not occurred. Lyles, 501 Mich
at 118.4



4
 Defendant, citing People v Bruner, 501 Mich 220, 232; 912 NW2d 514 (2018), also attempts to
characterize this issue as one involving a preserved constitutional error and argues that this


                                                -5-
                                          III. ANALYSIS




Court’s review should instead consider whether the prosecution has shown that the error was
harmless beyond a reasonable doubt. But our Supreme Court did not conclude that a
constitutional error occurred; it reviewed the issue as an evidentiary one, clearly finding only an
evidentiary error. See Wilder III, 502 Mich at 60, 62-63. “Evidentiary errors are
nonconstitutional.” People v Blackmon, 280 Mich App 253, 259; 761 NW2d 172 (2008).
Moreover, defendant’s claim of constitutional error is predicated on a vague, general assertion
that his due process right to a fair trial was violated. Unless a defendant also asserts the violation
of a specific constitutional right, “[a] general claim that the defendant was denied his or her due
process right to a fair trial is a claim of nonconstitutional error.” People v Blevins, 314 Mich
App 339, 354; 886 NW2d 456 (2016).
        Additionally, the prosecution argues that this issue is unpreserved and must be reviewed
for plain error affecting substantial rights because defendant did not object at trial to the
prosecutor’s initial questions asked of Tameachi that ultimately led to the questions regarding
defendant’s prior convictions. On plain error review, a defendant bears the burden of
demonstrating (1) error, (2) that was plain, and (3) that affected substantial rights—i.e.,
prejudiced the defendant—by affecting the outcome of the lower court proceedings. People v
Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). If these three requirements are satisfied,
reversal is only warranted if the plain error “resulted in the conviction of an actually innocent
defendant” or “seriously affect[ed] the fairness, integrity or public reputation of judicial
proceedings independent of the defendant’s innocence.” Id. (quotation marks and citation
omitted; alteration in original). However, the prosecution’s argument in this case for application
of plain error review is unavailing. Our Supreme Court clearly instructed this Court on remand
to “consider whether the error was harmless,” Wilder III, 502 Mich at 60, and not whether there
was a plain error affecting defendant’s substantial rights. Furthermore, as we noted in our
previous opinion, a discussion was held during trial and outside the presence of the jury
immediately after the prosecutor’s initial questions, during which defense counsel objected to the
prosecutor’s request to question Tameachi about defendant’s prior felony-firearm convictions on
the ground that “the prosecutor was ‘simply trying to back-door and get in convictions that she
knows she can’t get in.’ ” Wilder I, unpub op at 3. Our Supreme Court recognized that the
prosecutor’s initial questions functioned as a subterfuge for introducing the testimony about
defendant’s prior convictions; the Court further stated that it “firmly reject[ed] this tactic” and
“would not penalize defendant for his counsel’s failure to object to the initial improper
question.” Wilder III, 502 Mich at 67-69, 67 n 15, 68 n 16. Thus, it is apparent that our
Supreme Court treated this issue as preserved.
        For the above reasons, we conclude that we have been instructed by our Supreme Court
to review whether a preserved, nonconstitutional error was harmless. “When an appellate court
remands a case with specific instructions, it is improper for a lower court to exceed the scope of
the order.” People v Russell, 297 Mich App 707, 714; 825 NW2d 623 (2012).




                                                 -6-
       Defendant was convicted of felon-in-possession and felony-firearm. The crime of felon-
in-possession is defined in MCL 750.224f, which makes it a felony for an individual who has
been convicted of a felony to, among other things, possess or carry a firearm unless certain
requirements not at issue in the instant case are met. See also People v Bass, 317 Mich App 241,
267-268; 893 NW2d 140 (2016). “To be guilty of felony-firearm, one must carry or possess the
firearm, and must do so when committing or attempting to commit a felony.” People v
Burgenmeyer, 461 Mich 431, 438; 606 NW2d 645 (2000); see also MCL 750.227b(1).
“Possession of a firearm can be actual or constructive, joint or exclusive. [A] person has
constructive possession if there is proximity to the article together with indicia of control.”
People v Johnson, 293 Mich App 79, 83; 808 NW2d 815 (2011) (quotation marks and citations
omitted). Felon-in-possession may serve as the underlying felony to support a conviction for
felony-firearm. People v Calloway, 469 Mich 448, 452; 671 NW2d 733 (2003).

        In this case, defendant’s convictions were strongly supported by the untainted and
unequivocal testimony of two police officers who observed defendant in possession of the
firearm. Both Fultz and Shaw testified that they observed an individual, later identified as
defendant, pull a handgun from his pocket and place it in the trunk of a car as Fultz and Shaw
approached the car. Neither officer saw anyone else walk near the trunk of the car. The officers
approached and placed handcuffs on defendant. Fultz opened the trunk, and Shaw recovered a
handgun from inside. The gun was the only item in the trunk. Additionally, the parties
stipulated at trial that defendant had a prior felony conviction and was not eligible to possess a
firearm at the time of his arrest; consequently, the pertinent element at issue for purposes of both
the felon-in-possession and felony-firearm charges was whether defendant carried or possessed
the firearm. Because the trial evidence set forth above established that defendant possessed a
firearm when he was ineligible to do so based on his prior felony conviction, defendant’s
convictions for felon-in-possession and felony-firearm were adequately supported by the strong,
untainted evidence.

        Examining the erroneously admitted testimony regarding Tameachi’s knowledge of
defendant’s prior convictions, it is worth emphasizing that the jury was independently apprised
that defendant had previously been convicted of a felony and was ineligible to possess a firearm
at the time of his arrest. The references to defendant’s prior convictions during Tameachi’s
cross-examination were relatively brief, and the convictions were from several years before the
incident that led to the instant case. The prosecutor argued during closing argument that
Tameachi’s admission that she knew about defendant’s prior convictions showed that she lied.
However, Tameachi’s credibility was essentially inconsequential in this case because the
evidence for which defendant sought to rely on her was extremely weak for his defense. Even if
the jury were to believe Tameachi’s testimony that she did not see defendant with a gun when he
left the house that day, especially considering that Tameachi was not present in the vacant lot
where Fultz and Shaw observed defendant with a gun, Tameachi’s testimony did little to
undercut the police officers’ testimony that they saw defendant with the gun on his person and
saw him place it in the trunk of the car, after which they immediately confronted defendant and
located the gun. In other words, even accepting Tameachi’s’s testimony as true, it is not at all
contradictory to the testimony of the police officers because defendant could have had the gun
hidden from Tameachi’s view or obtained it at some point after leaving her sight. We also note
that there was testimony at trial that defendant failed to appear for the originally scheduled date
of his trial. He was arrested approximately four months later, after which the instant trial

                                                -7-
commenced. Evidence of flight is probative because it may indicate consciousness of guilt. See
People v Unger, 278 Mich App 210, 226; 749 NW2d 272 (2008).

        Therefore, in light of the overwhelming untainted evidence demonstrating that defendant
is guilty of these crimes involving straightforward and uncomplicated facts, we conclude that
defendant has failed to meet his burden on appeal of showing that it is more probable than not
that the erroneous admission of Tameachi’s cross-examination testimony regarding her
knowledge of defendant’s prior felony-firearm convictions was outcome determinative. Lyles,
501 Mich at 117-118; Denson, 500 Mich at 413 n 15. Because the error was harmless, there is
no error requiring reversal and we affirm defendant’s convictions.

       Affirmed.



                                                          /s/ Stephen L. Borrello
                                                          /s/ Jane E. Markey
                                                          /s/ Michael J. Riordan




                                              -8-
