                            STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 11, 2016
                 Plaintiff-Appellee,

v                                                                  No. 323670
                                                                   Livingston Circuit Court
TERRY LEE GARTEN,                                                  LC No. 13-021302-FH

                 Defendant-Appellant.


Before: O’CONNELL, P.J., and OWENS and BECKERING, JJ.

PER CURIAM.

       Defendant, Terry Garten, appeals as of right his jury trial convictions of larceny over
$1,000 but not more than $20,000, MCL 750.356(3)(a), and unlawfully driving away a motor
vehicle (UDAA), MCL 750.413. He was sentenced on December 1, 2014, as a fourth habitual
offender, MCL 769.10, to four to 20 years’ imprisonment for each conviction. We affirm.

       This case involves the theft of copper wire and a service truck from a Detroit Edison
(DTE) service center in Howell on December 8, 2012. Garten allegedly worked with
codefendants Michael Brown and Patrick Cronan to break into the service center and push large
spools of copper wire onto a service truck. According to Cronan, Brown drove the service truck
to Cronan’s residence, while Cronan followed in his wife’s car and Garten followed in his blazer.
The men unloaded the wire into Cronan’s barn, before Brown and Garten abandoned the service
truck on US-23. Cronan testified that the next day, Garten and Brown helped him strip the wire,
then Cronan took it to a recycling yard for money, which the three of them split.

        Cronan pleaded guilty and received a lenient sentence in exchange for his testimony
against Garten and Brown. Garten and Brown were tried together in front of two separate juries,
and both were convicted of larceny and UDAA.1 Defendant Garten raises issues in a brief filed
by appellate counsel, as well as in propria persona in his supplemental brief filed pursuant to
Supreme Court Administrative Order No. 2004–6, Standard 4.




1
    Defendant Brown appeals his convictions as of right in Docket No. 325115.


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                                I. APPELLATE BRIEF ISSUES

        Defendant raises two issues in his brief submitted by appellate counsel, arguing that the
trial court denied him due process and a fair trial by the admitting other acts evidence and exhibit
10. We review a trial court’s decision whether to admit or exclude 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.

                                 A. OTHER ACTS EVIDENCE

        At trial, the prosecutor presented voluminous evidence that the three men made similar
thefts before and after the theft at the Howell Service Center. Defendant argues that this
evidence confused the issues and was unfairly prejudicial to defendant because the amount of
evidence presented regarding the other acts was the same as it was for the offenses for which
defendant was on trial.2

       MRE 404(b)(1), which addresses the admission of other acts evidence, provides,

               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.

       Our Supreme Court in Mardlin, “unanimously confirmed that the opinions in People v
VanderVliet, 444 Mich 52, 508 NW2d 114 (1993), amended 445 Mich 1205, 520 NW2d 338
(1994), People v Crawford, 458 Mich 376, 582 NW2d 785 (1998), and People v Sabin (After
Remand), 463 Mich 43, 614 NW2d 888 (2000), ‘continue to form the foundation for a proper
analysis of MRE 404(b).’ ” Mardlin, 487 Mich at 615 n 6, quoting People v Knox, 469 Mich
502, 510, 674 NW2d 366 (2004). The Court summarized the principles set forth in those cases:

       To 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. The
       prosecution thus bears an initial burden to show that the proffered evidence is


2
  We reject plaintiff’s argument that this issue is unpreserved. Although Garten’s primary
argument was that the prosecutor’s notice to introduce the prior acts at trial was untimely, he also
stated that he joined Brown’s primary legal argument, which was that the probative value of the
evidence, if any, was substantially outweighed by unfair prejudice.


                                                -2-
       relevant to a proper purpose under the nonexclusive list in MRE 404(b)(1) or is
       otherwise probative of a fact other than the defendant’s character or criminal
       propensity. Evidence relevant to a noncharacter purpose is admissible under
       MRE 404(b) even if it also reflects on a defendant’s character. Evidence is
       inadmissible under this rule only if it is relevant solely to the defendant’s character
       or criminal propensity. Stated another way, the rule is not exclusionary, but is
       inclusionary, because it provides a nonexhaustive list of reasons to properly admit
       evidence that may nonetheless also give rise to an inference about the defendant’s
       character. Any undue prejudice that arises because the evidence also unavoidably
       reflects the defendant’s character is then considered under the MRE 403
       balancing test, which permits the court to exclude relevant evidence if its
       “probative value is substantially outweighed by the danger of unfair
       prejudice . . . .” MRE 403. Finally, 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 615-616 (citations omitted).]

                                         1. RELEVANCE

        Mardlin explains that the first inquiry is whether the prosecutor showed that defendant’s
prior conviction is relevant to a proper noncharacter purpose under MRE 404(b)(1). Relevance
involves two components: materiality and probative value. Crawford, 458 Mich at 388.
“Materiality is the requirement that the proffered evidence be related to ‘any fact that is of
consequence’ to the action.” Id. Whereas, “[t]he probative force inquiry asks whether the
proffered evidence tends ‘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.’ ” Id. at 389-390, quoting MRE 401. Any tendency is sufficient, but under MRE
404(b), the evidence “truly must be probative of something other than the defendant’s propensity
to commit the crime.” Id. at 390.

        In this case, the prosecutor sought to admit evidence regarding the thefts at another DTE
service center and a Consumers Energy service center to show defendant’s common plan or
scheme, intent, and identity in committing the theft at the Howell Service Center. The trial court
held that the evidence was relevant to prove all three noncharacter purposes.

                               a. SCHEME, PLAN, OR SYSTEM

        First, we agree with the trial court that the other acts evidence was relevant to show
defendant’s scheme, plan, or system in doing an act. The evidence is material in this sense
because it tends to prove that defendant committed the charged offenses of larceny and UDAA—
a fact which he denied. “It is well established in Michigan that all elements of a criminal offense
are ‘in issue’ when a defendant enters a plea of not guilty.” Crawford, 458 Mich at 389.
Defendant’s common plan or scheme was material to a fact of consequence, specifically to show
that defendant acted in concert with the codefendants to commit the charged offenses.

        With regard to the probative force inquiry, when the theory of relevance is based on
similarities between the other acts and the charged offense, the uncharged misconduct and the

                                                -3-
charged offense must be “sufficiently similar to support an inference that they are manifestations
of a common plan, scheme, or system.” Sabin, 463 Mich at 63. In this case, the similarities
between the uncharged misconduct and the charged offenses were striking, as to establish a
sufficient factual nexus between the two. There was testimony that the three defendants acted in
concert to steal copper wire from electrical companies to salvage it and make a profit. For each
of the three incidents, defendants would meet at Cronan’s residence and drive to the service
center. Once there, one of the defendants would cut the fence and enter the property. One
defendant would then find a service truck with keys and back it up to the rack containing spools
of copper wire, while the other two would push the spools onto the service truck. One defendant
would then cut the gate to allow another defendant to exit the property with the service truck.
Two defendants would follow the service truck back to Cronan’s residence, where they would
unload the wire into Cronan’s barn. Brown would then abandon the service truck along US-23
and Garten would give him a ride home. Cell phone mapping supports this evidence and further
places all three defendants together and in the general area of the service centers and truck routes
from the time the trucks were started to the time they were abandoned. The proffered evidence
was highly probative to show that defendant employed a similar plan in doing an act in this case
and to overcome the improper inference of character. See Crawford, 458 Mich at 391 (noting
that “the question becomes whether the prosecutor carried its burden of demonstrating that the
defendant’s prior conviction establishes some intermediate inference, other than the improper
inference of character, which in turn is probative of the ultimate issues in th[e] case”).
Therefore, the trial court did not abuse its discretion by concluding that the other acts evidence
was relevant to prove defendant’s scheme, plan, or system in doing an act in this case.

                                           b. INTENT

        We also agree with the trial court that the evidence was relevant to prove defendant’s
intent. Larceny is a specific intent crime that requires an intent to permanently deprive an owner
of his property. People v Pohl, 202 Mich App 203, 205; 507 NW2d 819 (1993), remanded on
other grounds by 445 Mich 918 (1994). One element of UDAA is that it must be “done
willfully.” People v Dutra, 155 Mich App 681, 685; 400 NW2d 619 (1986). While this does not
require the prosecution to establish an intent to permanently deprive the owner of possession, it
does require that the defendant have “guilty knowledge.” Id. Defendant denied committing the
charged offenses, which required the prosecution to prove specific intent, thereby making
defendant’s intent a fact of consequence to the action. But see Sabin, 463 Mich at 68-69 (noting
that other acts evidence was not logically relevant under a theory that it proved the defendant’s
intent where the crime was a general intent crime, and thus, intent was not in issue). Therefore,
the evidence was material to prove defendant’s intent.

        With regard to the probative force inquiry, the factual relationship of the evidence was
not too remote to draw a permissible inference of defendant’s intent in the present case. This is
unlike in Crawford, where the past conduct was factually dissimilar. See Crawford, 458 Mich at
395-396 (finding that the factual relationship between the prior conviction and charged offense
was too remote for the jury to draw a permissible intermediate inference of the defendant’s mens
rea). The strong similarities between the conduct, as discussed earlier, likely overshadows any
impermissible character evidence and makes the evidence truly probative of defendant’s intent.
Therefore, the trial court did not abuse its discretion by concluding that the other acts evidence
was relevant to prove defendant’s intent.

                                                -4-
                                          c. IDENTITY

        Lastly, the evidence was also offered to prove defendant’s identity. When similar
conduct is being used to prove identity, there must be “a high degree of similarity” between the
similar conduct and the charged offense. Specifically, there must be “special characteristics so
uncommon, peculiar and distinctive as to lead compellingly to the conclusion that all were the
handiwork of the defendant because all bore his distinctive style or ‘touch.’ ” People v
Golochowicz, 413 Mich 298, 325; 319 NW2d 518 (1982). While there was a high degree of
similarity between the uncharged misconduct and the charged offense, we find it questionable
whether the other acts evidence bore uncommon and peculiar characteristics distinctive to
defendant. Close questions concerning the trial court’s discretion to admit evidence, however,
do not call for appellate reversal. Id. at 322. Further, any error in admitting the other acts
evidence to prove identity is harmless, where the evidence was admissible for other noncharacter
purposes, such as a common plan or scheme and intent.

                                2. MRE 403 BALANCING TEST

        As explained in Mardlin, once it is determined that the evidence is relevant to a proper
noncharacter purpose under MRE 404(b)(1), it must be shown that the evidence is not
substantially outweighed by the danger of unfair prejudice under MRE 403. Defendant argues
that given the volume of other acts evidence, he was forced to defend against all three incidents,
rather than just the one he was on trial for. We acknowledge that the amount of evidence
presented regarding the other acts committed by defendants was almost equal to the amount of
evidence presented for the charged offenses. This certainly prejudices defendant to an extent and
carries a high risk of confusion and misuse, as cautioned in Crawford, 458 Mich at 398.

        However, MRE 403 does not prohibit prejudicial evidence. Rather, it prohibits evidence
that is unfairly prejudicial. Id. “Evidence is unfairly prejudicial when there exists a danger that
marginally probative evidence will be given undue or preemptive weight by the jury.” Id. In
Crawford, the other acts evidence was factually dissimilar from the charged offense such that the
only inference the jury could draw from the past conduct was an impermissible character
inference that “if the defendant did it before, he probably did it again.” Id. at 398-399. In other
words, the evidence was marginally probative and the jury was very likely to give it undue
weight. In this case, as discussed, the strong similarities between the uncharged misconduct and
conduct of the charged offenses was highly probative to show that defendant employed a similar
plan in doing an act in this case. Therefore, although the prosecution presented voluminous
other acts evidence, given its probative value, the jury was less likely to give it undue weight.

        Finally, the trial court provided a limiting instruction to the jury explaining the proper,
noncharacter purpose for which it could consider the other acts evidence. A trial court’s limiting
instruction will generally enable the jury to sort out the evidence and consider it only for its
proper purpose. Mardlin, 487 Mich. at 629. Indeed, jurors are presumed to follow the trial
court’s instructions. People v Unger, 278 Mich App 210, 235, 237; 749 NW2d 272 (2008).
Therefore, we conclude that the trial court did not abuse its discretion in admitting the other acts
evidence.



                                                -5-
                               B. ADMISSION OF EXHIBIT 10

        Exhibit 10 was a spreadsheet showing the footage and value of the copper wire that was
missing from the Howell Service Center. The document was generated from data in DTE’s
computer system and printed by Sheila Edie, a general supervisor over all the service centers in
the surrounding Detroit area. Defendant challenged its admission after Edie, on cross-
examination, could not explain some of the data. Specifically, the spreadsheet indicated that the
Howell Service Center was missing 3,840 feet of wire, but the stock balance was zero, which is
an indication that the service center was not supposed to have any of that type of wire in stock at
the time of the theft. Edie could not explain why. She testified that the computer automatically
ran the data, and she would have to go back and look at the data in the computer. The trial court
determined that it was admissible under the business-record exception to the hearsay rule, and
any issues with Edie testifying to the substance went to the weight and credibility of the exhibit
and her testimony. We conclude any error in admitting the exhibit was harmless.

       The business-record exception, MRE 803(6) provides,

              The following are not excluded by the hearsay rule, even though the
       declarant is available as a witness:

                                              ***

               (6) Records of Regularly Conducted Activity. A memorandum, report,
       record, or data compilation, in any form, of acts, transactions, occurrences, events,
       conditions, opinions, or diagnoses, made at or near the time by, or from
       information transmitted by, a person with knowledge, if kept in the course of a
       regularly conducted business activity, and if it was the regular practice of that
       business activity to make the memorandum, report, record, or data compilation,
       all as shown by the testimony of the custodian or other qualified witness, or by
       certification that complies with a rule promulgated by the supreme court or a
       statute permitting certification, unless the source of information or the method or
       circumstances of preparation indicate lack of trustworthiness. The term
       “business” as used in this paragraph includes business, institution, association,
       profession, occupation, and calling of every kind, whether or not conducted for
       profit.

A key component of the business-records exception to the hearsay rule is the inherent
trustworthiness of business records. People v McDaniel, 469 Mich 409, 414; 670 NW2d 659
(2003). The trustworthiness of the records is undermined when the records are prepared in
anticipation of litigation. Id.

        In this case, exhibit 10 was a data compilation, made by Edie, who at the time had
personal knowledge of DTE’s computer system and inventory. It was based on information
transmitted to her by the senior warehouseman at the Howell Service Center, who also had
personal knowledge of the missing inventory. Edie testified that the report was a preliminary
report, kept in the course of regularly conducted business activity, to assign a value to the
                                                -6-
missing wire based on the moving price of the wire at the time. It was prepared at the time the
wire was reported missing and not in the anticipation of litigation. Further, Edie testified that it
was a regular practice of DTE to keep records of the inventory and run reports when inventory is
reported missing.

        Edie was able to explain most of exhibit 10, with the exception discussed earlier. While
Edie’s inability to explain why the exhibit indicated that 3,840 feet of wire was missing, but the
stock balance showed zero, certainly casts doubt on the trustworthiness of the document, any
error in admitting the exhibit was harmless. MRE 103(a). The value of the wire could easily be
determined by the amount of cash received by defendants at the recycling yard, which was
evidenced by the receipts found at Cronan’s residence and those kept by the recycling yard itself.

                               II. STANDARD 4 BRIEF ISSUES

        Defendant raises two issues in his Standard 4 brief, challenging the sufficiency of the
evidence and the trial court’s decision to qualify Whitefeather Cherokee as an expert witness.
We review de novo claims of insufficient evidence, People v Ericksen, 288 Mich App 192, 195;
793 NW2d 120 (2010), and we review a trial court’s decision to qualify an expert and admit
expert testimony for an abuse of discretion. People v Murray, 234 Mich App 46, 52; 593 NW2d
690 (1999).

                            A. SUFFICIENCY OF THE EVIDENCE

        “Due process requires that a prosecutor introduce evidence sufficient to justify a trier of
fact to conclude that the defendant is guilty beyond a reasonable doubt.” People v Tombs, 260
Mich App 201, 206-207; 679 NW2d 77 (2003), aff’d by 472 Mich 446 (2005). Accordingly, we
examine the evidence in a light most favorable to the prosecution to determine whether a rational
trier of fact could have found that the essential elements of the crime were proven beyond a
reasonable doubt. Ericksen, 288 Mich App at 196. All evidentiary conflicts must be resolved in
favor of the prosecution, and we “will not interfere with the jury’s determinations regarding the
weight of the evidence and the credibility of the witnesses.” Unger, 278 Mich App at 222.
“Circumstantial evidence and the reasonable inferences it permits are sufficient to support a
conviction, provided the prosecution meets its constitutionally based burden of proof beyond a
reasonable doubt.” Ericksen, 288 Mich App at 196. Further, “because it can be difficult to
prove a defendant’s state of mind on issues such as knowledge and intent, minimal
circumstantial evidence will suffice to establish the defendant’s state of mind, which can be
inferred from all the evidence presented.” People v Kanaan, 278 Mich App 594, 622; 751
NW2d 57 (2008).

        Defendant argues that there was insufficient evidence to convict him beyond a reasonable
doubt of UDAA because Cronan repeatedly testified that Brown was the one who drove the DTE
service truck. UDAA, MCL 750.413 provides,

              Any person who shall, wilfully and without authority, take possession of
       and drive or take away, and any person who shall assist in or be a party to such
       taking possession, driving or taking away of any motor vehicle, belonging to



                                                -7-
       another, shall be guilty of a felony, punishable by imprisonment in the state prison
       for not more than 5 years.

The plain language of the statute states that any person “who shall assist in or be a party to . . .
taking possession, driving or taking away” a motor vehicle is guilty of UDAA. Therefore,
contrary to defendant’s argument it does not matter that Brown was the person driving the DTE
vehicle. Garten assisted in or was a party to taking possession and driving away the DTE service
truck by driving his vehicle, along with Brown and Cronan, to the service center, following
behind the stolen DTE truck to Cronan’s house, and assisting Brown in abandoning the truck on
the side of road. Accordingly, there was sufficient evidence to convict Garten beyond a
reasonable doubt of UDAA.

         Garten off-handedly argues that because Brown drove the vehicle, he also could not be
guilty of larceny. “Larceny is the taking and carrying away of the property of another, done with
felonious intent and without the owner’s consent.” People v Gimotty, 216 Mich App 254, 257-
258; 549 NW2d 39 (1996). Garten was specifically charged with stealing property that had a
value of $1,000 or more, but less than $20,000. MCL 750.356(3)(a). The prosecution presented
receipts from the recycling yard dated December 10 and 11, 2012, days after the theft at the
Howell Service Center that had Cronan’s and Garten’s name, phone number, and fingerprint.
The receipts indicated that the men received over $3,000 in cash for copper wire. Cronan
testified as to Garten’s involvement in the Howell theft, and his testimony was supported by cell
phone and GPS evidence presented at trial. Accordingly, there was sufficient evidence to
convict Garten beyond a reasonable doubt of larceny.

                           B. EXPERT WITNESS QUALIFICATION

       Finally, defendant argues that the trial court erred by qualifying Cherokee as an expert
witness under MRE 702 regarding the analysis of Metro PCS’s records and equipment. MRE
702 governs the admissibility of expert testimony and provides:

               If the court determines that scientific, technical, or other specialized
       knowledge will assist the trier of fact to understand the evidence or to determine a
       fact in issue, a witness qualified as an expert by knowledge, skill, experience,
       training, or education may testify thereto in the form of an opinion or otherwise if
       (1) the testimony is based on sufficient facts or data, (2) the testimony is the
       product of reliable principles and methods, and (3) the witness has applied the
       principles and methods reliably to the facts of the case.

       When evaluating proposed expert testimony, MRE 702 requires a court to ensure that the
testimony “(1) will assist the trier of fact to understand a fact in issue, (2) is provided by an
expert qualified in the relevant field of knowledge, and (3) is based on reliable data, principles,
and methodologies that are applied reliably to the facts of the case.” People v Kowalski, 492
Mich 106, 120; 821 NW2d 14 (2012).

       With regard to the first inquiry, “[t]he party proffering the expert’s testimony must
persuade the court that the expert possesses specialized knowledge which will aid the trier of fact
in understanding the evidence or determining a fact in issue.” People v Smith, 425 Mich 98, 112;

                                                -8-
387 NW2d 814 (1986), citing MRE 702. This must be something beyond common knowledge.
Kowalski, 492 Mich at 123. In other words, the testimony must regard a matter that is not
commonly understood by the average person. Id. In this case, Cherokee’s testimony helped the
jury understand the functions of Metro PCS’s cell phone towers and techniques of locating or
plotting origins of cell phone calls using Metro PCS’s cell phone records. Cherokee explained
how the cell phone data could show the general area where a call was placed. This information
was not something an average juror would have previously known because it involved
specialized training and knowledge.

         With regard to the second inquiry, Cherokee was not required to have published works or
to have given educational speeches to be qualified as an expert. The plain language of the rule
states that a witness is qualified to testify as an expert based on “knowledge, skill, experience,
training, or education.” MRE 702. Cherokee testified that he has been employed with Metro
PCS for five years as a custodian of records and an analyst. He has testified in approximately
300 trials, both federal and state, during his employment with Metro PCS. Cherokee testified
that he was trained by the staff of the various departments at Metro PCS regarding legal issues,
how the towers and phone records work, and how to retrieve and order the records. Further,
every six months, or when new technology comes out, Cherokee testified that he attends more
training. Cherokee testified that prior to his experience with Metro PCS, he worked for the
United States Army in the intelligence unit, analyzing and tracking enemies by phones and
satellites. He also worked for Homeland Security, investigating personnel breaches of agents by
using cell phone tracking. Cherokee’s testimony demonstrates that he was qualified to provide
cell phone tracking testimony using Metro PCS’s records based on his knowledge, experience,
and training.

        The final inquiry involves reliability. “MRE 702 requires the trial court to ensure that
each aspect of an expert witness’s proffered testimony—including the data underlying the
expert’s theories and the methodology by which the expert draws conclusions from that data—is
reliable.” Gilbert v Daimler Chrysler Corp, 470 Mich 749, 779; 685 NW2d 391 (2004). The
inquiry is a flexible one and a trial court must ask “whether the opinion is rationally derived from
a sound foundation.” Elher v Misra, 308 Mich App 276, 289-290; 870 NW2d 335 (2014)
(internal quotation marks and citation omitted). Defendant does not argue that Cherokee’s
testimony was unreliable. He simply argues he was not qualified to testify as an expert.
Nevertheless, Cherokee’s testimony was based on his specialized knowledge regarding Metro
PCS’s cell phone towers and cell phone records. He explained how the Metro PCS’s towers
work and how calls are routed to the various towers. Cherokee used this data to determine the
defendants’ general location. He explained exactly how the data was reflected in the cell phone
records. This was reliable testimony. Therefore, the trial court did not abuse its discretion in
qualifying Cherokee as an expert witness regarding the analysis of Metro PCS’s records and
equipment.




                                                -9-
Affirmed.



                   /s/ Peter D. O'Connell
                   /s/ Donald S. Owens
                   /s/ Jane M. Beckering




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