                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  March 22, 2016
              Plaintiff-Appellee,

v                                                                 No. 324273
                                                                  Wayne Circuit Court
ROMERO MONTE THOMAS,                                              LC No. 13-011522-FC

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                                 No. 324274
                                                                  Wayne Circuit Court
ROMERO MONTE THOMAS,                                              LC No. 13-011521-FC

              Defendant-Appellant.


Before: TALBOT, C.J., and WILDER and BECKERING, JJ.

PER CURIAM.

        This consolidated appeal arises out of one jury trial in which defendant, Romero Thomas,
was convicted of robbing two Dollar General Stores. In Docket No. 324273, he was convicted
of three counts of armed robbery1, MCL 750.529, and possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b, associated with the July 21, 2013
robbery of a Dollar General Store on Joy Road in Detroit. In Docket No. 324274, he was
convicted of two counts of armed robbery and one count of felony-firearm associated with the
September 12, 2013 robbery of a Dollar General Store on West Davison Street in Detroit. The
trial court sentenced defendant to 18 to 30 years’ imprisonment for each of his armed robbery
convictions and two years’ imprisonment for each of his felony-firearm convictions. We affirm.


1
  Each conviction correlated with a person against whom defendant used force or violence or put
in fear while he was in the course of committing a larceny while armed with a gun.


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                           I. OTHER-ACTS EVIDENCE, MRE 404(b)

        Defendant first argues on appeal that the trial court abused its discretion by permitting the
admission of other-acts evidence associated with the September 29, 2013 robbery of a Dollar
General Store located on Fenkell Street in Detroit; defendant had previously been convicted by a
jury of committing the Fenkell store robbery.2

       We review a trial court’s decision to admit other-acts evidence for an abuse of discretion.
People v Mardlin, 487 Mich 609, 614, 790 NW2d 607 (2010). We review de novo preliminary
questions of law, such as whether a rule of evidence precludes admission. Id. MRE 404(b),
which addresses the admission of other-acts evidence, provides as follows:

               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.

As our Supreme Court noted in Mardlin, “[t]o admit evidence under MRE 404(b), the prosecutor
must first establish that the evidence is logically relevant to a material fact in the case, as
required by MRE 401 and MRE 402, and is not simply evidence of the defendant’s character or
relevant to his propensity to act in conformance with his character.” Mardlin, 487 Mich at 615.
MRE 404(b) is a rule of inclusion, not exclusion, and evidence that is relevant to a noncharacter
purpose is admissible even if it also reflects on a defendant’s character. Id. “Any undue
prejudice that arises because the evidence unavoidably reflects the defendant’s character is then
considered under the MRE 403 balancing test” wherein the evidence is deemed inadmissible if
its probative value is substantially outweighed by the danger of unfair prejudice. Id. at 616. See
also MRE 403. If the evidence is determined to be admissible, “upon request, the trial court may
provide a limiting instruction to the jury under MRE 105 to specify that the jury may consider
the evidence only for proper, noncharacter purposes.” Mardlin, 487 Mich at 616.

        At trial, the prosecutor elicited testimony from several witnesses to the robberies at the
Dollar General stores on Joy Road and West Davison Street. A witness from each location
positively identified defendant as the offender.3 The prosecutor also submitted as evidence and



2
  People v Thomas, unpublished opinion per curiam of the Court of Appeals, issued July 21,
2015 (Docket No. 321489). Defendant was convicted of two counts of armed robbery and one
count of felony-firearm; this Court affirmed.
3
  With regard to the Joy Road robbery, store manager Delia Williams-Milton identified
defendant as the perpetrator in a photographic line-up as well as at trial. She also identified
defendant as the man robbing the store in the store’s surveillance video. With regard to the West
Davison robbery, Asha Durant identified defendant as the perpetrator in a photographic line-up


                                                -2-
showed to the jury a store surveillance video of each of the two robberies. Without objection,
the prosecutor called a witness to testify regarding the Fenkell Street robbery. That witness4
positively identified defendant as the perpetrator, and again, without objection, the prosecutor
submitted into evidence and played for the jury a video of the robbery. After cross-examination
by the defense and redirect examination by the prosecutor of the witness in the Fenkell Street
robbery, defense counsel asked for the jury to be dismissed from the courtroom. Outside the
presence of the jury, defense counsel raised a concern about whether the surveillance video of
the Fenkell Street robbery had been altered.5 In response to defendant’s concerns, a police
sergeant testified regarding the particulars of how the video was downloaded from the store’s
security system; the witness verified that the content was not altered.6 As the parties were
discussing outside the presence of the jury whether the video had been altered, defense counsel
remarked that an MRE 404(b) motion had been filed but had not been ruled on by the trial court.
The court clerk weighed in and represented that the trial court had indeed ruled on the
prosecutor’s MRE 404(b) motion—at a time when defendant was represented by other counsel—
and that the court had granted the motion, thereby permitting evidence of each Dollar Store
robbery in any trial regarding the other Dollar Store robberies. Defense counsel no longer
pursued the matter at trial.

        On appeal, defendant contends that the trial court abused its discretion when it admitted
evidence regarding defendant’s robbery of the Dollar General on Fenkell Street. Specifically,
defendant claims that the prosecutor’s MRE 404(b) motion on the matter was not properly
noticed for a hearing and that no hearing was ever actually held. Thus, the evidence should not
have been allowed. Defendant claims that the evidence was crucial because, according to the
officer in charge of investigating the robbery, the evidence of the crime, coupled with an
anonymous tip, led directly to defendant. Defendant admits that any error in the admission of the
evidence must have resulted in a miscarriage of justice in order to justify a reversal of
defendant’s convictions.7

       Defendant did not timely object to the admission of evidence concerning the Fenkell
Street robbery. Thus, defendant’s claim of error should be viewed under the plain error

as well as at trial. She also identified defendant as being the person robbing the store in the
store’s surveillance video.
4
 Dollar General employee Tanisha Williams identified defendant in a photographic line-up as
well as at trial, as having been the perpetrator in the Fenkell Street robbery.
5
  Defense counsel noted that the version of the video he had viewed before trial did not have a
time/date stamp on it, while the one shown to the jury did.
6
    Both versions of the video were shown to the jury.
7
 “If an error is found, defendant has the burden of establishing that, more probably than not, a
miscarriage of justice occurred because of the error. No reversal is required for a preserved,
nonconstitutional error 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
Knapp, 244 Mich App 361, 378; 624 NW2d 227 (2001) (citation and quotation marks omitted).
See also MCL 769.26.

                                                 -3-
standard.8 However, even if we were to consider defendant’s objection timely, he would still not
be entitled to relief.

         The record reveals that on March 5, 2014—six months before trial in the instant matter—
the prosecutor filed a notice of intent for all three of the robberies charged, declaring her intent to
admit evidence under MRE 404(b) at trial in proving the crimes charged. Although the notice
appears to have inadvertently omitted a brief description of the robbery at the Joy Road location,
as it did for the Fenkell Street and West Davison robberies, it is clear from the notice of intent as
a whole that the prosecutor sought to admit evidence of each robbery in the trials of each of the
other cases. While the trial court did not have a formal hearing and ruling over whether evidence
of the Fenkell Street robbery could be admitted in this case, it did have such a hearing before
trial regarding the Fenkell Street robbery, and it deemed evidence of the Joy Road and West
Davison robberies admissible in that case. This Court affirmed the trial court’s admission of the
other-acts evidence in the Fenkell Street trial:

       The court properly noted that the prosecution used the testimony on defendant’s
       other robberies for a “proper purpose” under MRE 404(b): namely, to show that
       defendant had a common “scheme, plan, or system” to carry out his crimes. In
       each robbery, defendant followed a similar routine: he robbed Dollar General
       stores in Detroit, used a gun to intimidate the store’s employees, targeted female
       cashiers, and ordered them to empty the cash registers. And the record
       demonstrates that the prosecution did not use this testimony on the uncharged
       robberies to show that defendant had an immoral character or propensity to
       commit robbery—instead, it used the evidence to suggest that defendant hewed to
       a common “scheme, plan, or system” when he committed the charged crime.

               The evidence that defendant perpetrated two other armed robberies is
       unquestionably relevant, because it tends to “make a material fact at issue”—
       whether defendant robbed the Dollar General store on September 29, 2013—more
       probable or less probable than it would be without the evidence. Nor was the
       probative value of the witness testimony on the other robberies outweighed by the
       risk of unfair prejudice to defendant, because it: (1) did not delay defendant’s trial
       or take a long while to present; (2) was not needlessly cumulative; (3) tends to
       prove the fact that defendant committed the September 29, 2013 Dollar General



8
  Unpreserved evidentiary claims are reviewed for plain error affection substantial rights. A
plain error analysis requires three findings: 1) error, 2) that is plain, 3) which affects substantial
rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). A plain error will
generally affect substantial rights when there is a showing of prejudice—“that the error affected
the outcome of the lower court proceedings.” Id. Once the three findings for plain error are met,
“[r]eversal is warranted only when the plain . . . error resulted in the conviction of an actually
innocent defendant or when an error seriously affected the fairness, integrity or public reputation
of judicial proceedings independent of the defendant’s innocence.” Id. at 763-764 (citation and
quotation marks omitted).


                                                 -4-
        robbery; (4) is important to the prosecution’s argument; (5) was not likely to
        confuse or mislead the jury; and (6) cannot be “proved in another manner without
        as many harmful effects. [People v Thomas, unpublished opinion per curiam of
        the Court of Appeals, issued July 21, 2015 (Docket No. 321489), p 3 (quotation
        marks and citations omitted).].

We agree with the above assessment. For the same reasons this Court articulated regarding the
Fenkell Street trial, we conclude that evidence of the Fenkell Street robbery was relevant to show
defendant had a common scheme or plan to carry out his crimes when committing the Joy Road
and West Davison robberies. See People v Sabin, 463 Mich 43, 63; 614 NW2d 888 (2000).
Defendant targeted Dollar General Stores in Detroit, came armed with a gun, targeted female
cashiers, and sought solely to collect money from Dollar General; he did not rob employees or
patrons. And the probative value of the evidence far outweighed any potential for unfair
prejudice. See MRE 403. In a situation where defendant received pretrial notice of the
prosecutor’s intent to admit in each robbery trial evidence of the other robberies, and where the
trial court correctly admitted the other-acts evidence in the first robbery trial, we conclude that
the trial court did not abuse its discretion in permitting the admission of other-acts evidence in
this case.

        Furthermore, even if we were to determine that the trial court erred when admitting
evidence of the Fenkell Street robbery, the error would have been harmless. See People v Lukity,
460 Mich 484, 495-496; 596 NW2d 607 (1999). The jury was provided with extensive evidence
supporting defendant’s commission of the Joy Road and West Davison robberies, and it is very
unlikely that omission of evidence regarding the Fenkell Street robbery would have resulted in a
different outcome. See id; see also Knapp, 244 Mich App at 378. Eyewitnesses identified
defendant in each of the robberies at issue and the events were captured on the stores’
surveillance videos and shown to the jury.

                                    II. JURY INSTRUCTIONS
         Defendant also argues on appeal that he is entitled to a new trial because the trial court
failed to instruct the jury regarding how to properly consider other-acts evidence, as set forth in
M Crim JI 4.11, and that his trial counsel was ineffective for not requesting such instruction.
Initially, defendant concedes that his defense counsel expressed satisfaction with the jury
instructions, and thus, his alleged error by the trial court could be waived. In People v Kowalski,
489 Mich 488, 503; 803 NW2d 200 (2011), in the context of evaluating jury instructions, our
Supreme Court noted:

        This Court has defined “waiver” as the “intentional relinquishment or
        abandonment of a known right.” “One who waives his rights under a rule may
        not then seek appellate review of a claimed deprivation of those rights, for his
        waiver has extinguished any error. When defense counsel clearly expresses
        satisfaction with a trial court’s decision, counsel’s action will be deemed to
        constitute a waiver. [Citations omitted.]

       On the first day of trial, prior to the start of voir dire, the trial court engaged the parties in
an extensive discussion on the record regarding the proposed final jury instructions and their
accuracy with regard to the charges against defendant that had been bound over for trial. After

                                                  -5-
closing arguments and before reading the final instructions to the jury, the trial court noted on the
record that both the final jury instructions and verdict form had “been prepared and reviewed by
the lawyers.” The court solicited verification of that fact from the parties, and defendant counsel
expressly confirmed that he had indeed participated in preparing the jury instructions and verdict
form. After the trial court instructed the jury, it inquired of the parties whether they were
satisfied with the reading of the instructions. Defense counsel confirmed that he was satisfied.
In light of the above, we conclude that defense counsel waived any challenge to the jury
instructions. See id. Thus, we are left with defendant’s claim of ineffective assistance of
counsel.

        Because defendant did not move for a new trial or a Ginther9 hearing, our review of his
ineffective assistance of counsel claim is limited to mistakes apparent from the record. People v
Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). “ ‘A claim of ineffective assistance of
counsel is a mixed question of law and fact. A trial court’s findings of fact, if any, are reviewed
for clear error, and this Court reviews the ultimate constitutional question arising from an
ineffective assistance of counsel claim de novo.’ ” Id, citing People v LeBlanc, 465 Mich 575,
579; 640 NW2d 246 (2002). In order to prove that counsel provided ineffective assistance, a
defendant must demonstrate that (1) “counsel’s representation fell below an objective standard of
reasonableness” under prevailing professional norms and (2) “ ‘there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’ ” People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012), quoting Strickland v
Washington, 466 US 668, 694; 104 S CT 2052; 80 L Ed2d 674 (1984). Defendant “must
overcome a strong presumption that counsel’s performance constituted sound trial strategy.”
People v Riley (After Remand), 468 Mich 135, 140; 659 NW2d 611 (2003). “This Court will not
substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess
counsel’s competence with the benefit of hindsight.” People v Garza, 246 Mich App 251, 255;
631 NW2d 764 (2001).

        Defendant claims he can discern no strategic value in his trial counsel’s failure to ask the
trial court to read M Crim JI 4.1110 once the court permitted the admission of evidence
concerning the Fenkell Street robbery. Even assuming defendant is correct that his counsel’s
failure to request the instruction fell below an objective standard of reasonableness, his
ineffective assistance of counsel claim fails because he has not established that absent the error,
there exists a reasonable probability that the result would have been different. See Vaughn, 491
Mich at 669. In this case, two robberies were at issue, and eyewitnesses affirmatively identified
defendant as the perpetrator in each of those robberies. There was also surveillance video
footage of the robberies for the jury to view and consider. A jury instruction regarding the


9
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
10
   M Crim JI 4.11 indicates that other-acts evidence can only be considered for certain purposes,
such as whether the evidence tends to show that the defendant used a plan or scheme that he or
she has used before or since, and it instructs the jury that it may not consider the evidence for any
other purpose, such as an indication that the defendant is a bad person or that he or she is likely
to commit crimes.


                                                -6-
limited use of the evidence from the Fenkell Street robbery would not likely have changed the
outcome, as the circumstances in Fenkell Street robbery were not much different than the
circumstances in the charged offenses such that they would cause the jury to conclude that
defendant was a bad person and convict on that basis. Rather, the relevance of the evidence from
the Fenkell Street robbery far outweighed any potential prejudice resulting from the absence of a
limiting instruction. As such, we find defendant’s ineffective assistance of counsel claim to be
without merit.

       Affirmed.



                                                           /s/ Michael J. Talbot
                                                           /s/ Kurtis T. Wilder
                                                           /s/ Jane M. Beckering




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