                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 28, 2015
               Plaintiff-Appellee,

v                                                                  No. 319943
                                                                   Kalamazoo Circuit Court
BETTINA ANTOINETTE SMITH,                                          LC No. 2012-001721-FH

               Defendant-Appellant.


Before: BECKERING, P.J., and MARKEY and SHAPIRO, JJ.

PER CURIAM.

       Defendant appeals by right her convictions of false pretenses greater than $999 but less
than $20,000, MCL 750.218(4)(a), and conspiracy to commit welfare fraud over $500, MCL
750.157a and MCL 400.60. We affirm.

       Defendant was certified to provide childcare to three of her nieces through the Child Care
and Development Program (CCDP) funded by the Department of Human Services (DHS). The
nieces were all children of defendant’s sister, Della Nichols. Between May 1, 2005 and
November 8, 2008, defendant consistently, and in writing, represented to the DHS that she
provided childcare to each of the children for 50 hours per week while Nichols worked.
However, a DHS investigation revealed that, during much of this time, there were not sufficient
hours during which the children were out of school, Nichols was working, and defendant was not
working for defendant to have legitimately provided childcare for the children for the amount of
time she claimed. An agent with the Office of the Inspector General for the DHS determined
that between May 1, 2005 and November 8, 2008, defendant defrauded the DHS out of
approximately $17,000.

        Defendant first argues that she was denied her due process right to adequate notice of the
charges against her because, before trial, the prosecution moved to amend the information to
expand the timeframe in which the charges occurred. “The Due Process Clause of the
Fourteenth Amendment mandates that a state’s method for charging a crime give a defendant fair
notice of the charge against the defendant, to permit the defendant to adequately prepare a
defense.” People v Chapo, 283 Mich App 360, 364; 770 NW2d 68 (2009). The main purpose of
the information is to give a defendant notice of the charges against her, People v Fortson, 202
Mich App 13, 15-16; 507 NW2d 763 (1993), and an information must contain: (1) the “nature of
the offense stated in language which will fairly apprise the accused and the court of the offense



                                               -1-
charged”; (2) “[t]he time of the offense as near as may be”; and (c) “[t]hat the offense was
committed in the county or within the jurisdiction of the court,” MCL 767.45(1). Both MCL
767.76 and MCR 6.112(H) permit a trial court to amend an information before, during, or after
trial. People v McGee, 258 Mich App 683, 686; 672 NW2d 191 (2003). However, an
amendment to an information “must not cause unacceptable prejudice to the defendant through
unfair surprise, inadequate notice, or insufficient opportunity to defend.” Id. at 688 (quotation
marks and citation omitted). Notably, if a preliminary examination is held on a charge that the
prosecution later seeks to have added to an information, a defendant is not unfairly surprised or
deprived of adequate notice or a sufficient opportunity to defend at trial with regard to that
charge. People v Unger, 278 Mich App 210, 221-222; 749 NW2d 272 (2008).

        After a preliminary examination, defendant was bound over to the circuit court on one
count of false pretenses less than $20,000 and one count of conspiracy to commit welfare fraud
greater than $500, and an information was filed charging defendant with committing these
crimes between January 2008 and April 2008. The prosecution subsequently sought to amend
the information to allege that the conduct giving rise to the charges was “on-going between May
1, 2005 and November 8, 2008,” and the trial court permitted this amendment. Defendant claims
that she was prejudiced because she was given inadequate notice of the expanded timeframe for
the charges. However, defendant was given notice of the addition of the expanded timeframe
two months before trial began, which was sufficient to satisfy due process considerations.
People v Russell, 266 Mich App 307, 317; 703 NW2d 107 (2005); McGee, 258 Mich App at
701. Moreover, defendant cannot establish that she was prejudiced by the amended information
where she admitted that she knew about the expanded timeframe before the preliminary
examination, she was granted an adjournment of trial to prepare to defend the expanded
timeframe, and the expanded timeframe arose out of the same events as originally set forth in the
information. McGee, 258 Mich App at 702. And, because defendant was tried on the very
charges for which she was bound over following the preliminary examination, defendant cannot
establish any violation of her due process right to reasonable notice of the charges. Unger, 278
Mich App at 221-222. Defendant was given adequate notice regarding the expanded timeframe
within which the prosecution alleged that the crimes were committed to satisfy due process
considerations. Russell, 266 Mich App at 317.

        Next, defendant argues that she was denied her due process right to adequate notice
because the information was amended mid-trial when the prosecution argued that defendant
committed the conspiracy crime by becoming the de facto caretaker of the children. Specifically,
the prosecution argued that defendant engaged in conspiracy to commit welfare fraud because
she either: (1) charged the DHS for CCDP services that were not actually provided; or (2) was
the usual caretaker of her nieces and thus not eligible for CCDP funds. The language in the
information put defendant on notice that she was charged with the crime of conspiracy to commit
welfare fraud and contained all of the required facts regarding this charge. MCL 767.45(1). The
prosecution’s argument that defendant engaged in conspiracy because she was the usual
caretaker of her nieces was not an amendment of the information; instead, the prosecution was
simply arguing alternative theories of guilt, which was permissible. People v Syakovich, 182
Mich App 85, 88-89; 452 NW2d 211 (1989).

        Defendant also argues that the trial court was required to give a specific unanimity
instruction with regard to the charge of false pretenses. However, the record supports that


                                               -2-
defendant’s trial counsel clearly and repeatedly expressed satisfaction with the jury instructions.
Therefore, defendant waived any objection to the instructions, People v Kowalski, 489 Mich 488,
504; 803 NW2d 200 (2011), and defendant cannot seek appellate review of this issue because her
waiver extinguished any error, People v Hall (On Remand), 256 Mich App 674, 679; 671 NW2d
545 (2003). Nevertheless, our review of the record indicates that the general unanimity
instruction was sufficient, and, accordingly, the trial court’s instructions did not constitute plain
error. People v Cooks, 446 Mich 503, 512-513; 521 NW2d 275 (1994).

        Defendant further argues that the trial court abused its discretion when it permitted the
prosecution to call Detective Jeffrey Baker as a rebuttal witness. Defendant testified that, in
2005, she created a spreadsheet detailing all of her care for her nieces and that she recorded
entries in the spreadsheet contemporaneously with the childcare that she provided from 2005 to
2008. Defendant provided the spreadsheet in electronic form on a USB thumb drive. The
prosecution called Baker in rebuttal as a computer expert witness. He testified that, having
inspected the electronic file, the spreadsheet was not created until 2013. “Rebuttal evidence is
admissible to contradict, repel, explain or disprove evidence produced by the other party and
tending directly to weaken or impeach the same,” and “[t]he question whether rebuttal is proper
depends on what proofs the defendant introduced and not on merely what the defendant testified
about on cross-examination.” People v Figgures, 451 Mich 390, 399; 547 NW2d 673 (1996)
(quotation marks and citations omitted). In addition, “the test of whether rebuttal evidence was
properly admitted is . . . whether the evidence is properly responsive to evidence introduced or a
theory developed by the defendant.” Id.

         Defendant argues that the admission of Baker’s testimony violated the trial court’s
pretrial discovery order. Discovery in a criminal case is governed by MCR 6.201 and, pursuant
to this court rule, parties are required to disclose the names of all witnesses whom the party may
call at trial. MCR 6.201(A)(1). Pursuant to MCR 6.201(J), if a party fails to comply with this
court rule, the trial court possesses the discretion to fashion an appropriate remedy for the
violation. This exercise of a trial court’s discretion requires an inquiry into all the relevant
circumstances, including the cause of the noncompliance and whether the party objecting to the
evidence can establish prejudice. People v Rose, 289 Mich App 499, 525-526; 808 NW2d 301
(2010) (citation omitted).

        In the present case, there is no dispute that Baker was not identified as a prosecution
witness prior to trial as required by MCR 6.201(A)(1) and the trial court’s scheduling order
requiring compliance with this court rule. However, the prosecution did not disclose Baker as a
witness before trial because the prosecution was not, and could not have been, aware that Baker
would be needed as a witness until the first day of trial. Specifically, defendant violated the
discovery order by not producing the spreadsheet about which Baker was called to testify until
the first day of trial. It was only at that point, and after defendant’s testimony regarding the
spreadsheet, that the prosecution could have concluded that there was a need for Baker’s rebuttal
testimony. In addition, defendant did not ask the trial court to postpone Baker’s testimony in
order to give defendant more time to prepare for cross-examination or locate a witness to
contradict Baker’s testimony. Moreover, although Baker’s testimony discredited the credibility
of defendant in general and with regard to the specific issue of when she created the spreadsheet,
it did not discredit defendant with regard to the substantive issues to be decided at trial.
Ultimately, any prejudice that occurred due to Baker’s testimony was due to the fact that


                                                -3-
defendant failed to produce the spreadsheet earlier. Accordingly, the trial court did not abuse its
discretion when it permitted Baker to testify as a rebuttal witness. Id. at 526.

        Finally, defendant argues that the admission of Baker’s testimony barred defendant from
presenting a defense. “There is no doubt that based on the Fourteenth Amendment’s Due
Process Clause and the Sixth Amendment's Compulsory Process or Confrontation Clauses, the
Constitution guarantees criminal defendants a meaningful opportunity to present a complete
defense.” People v King, 297 Mich App 465, 473; 824 NW2d 258 (2012) (quotation marks and
citation omitted). However, “the right to present a complete defense may, in appropriate cases,
bow to accommodate other legitimate interests in the criminal trial process.” Id. (quotation
marks and citation omitted). Indeed, a defendant’s constitutionally guaranteed right to present a
defense is not absolute; a defendant must comply with procedural and evidentiary rules when
presenting her defense. People v Yost, 278 Mich App 341, 379; 749 NW2d 753 (2008). In
addition, to establish a due process violation, a defendant must prove prejudice to her defense.
McGee, 258 Mich App at 700.

        For the reasons discussed above, the trial court did not abuse its discretion when it
permitted Baker’s rebuttal testimony. Further, defendant’s presentation of the spreadsheet on the
first day of trial violated the trial court’s pretrial discovery order and defendant’s right to present
a defense did not excuse noncompliance with established rules and procedures. Yost, 278 Mich
App at 379. If defendant had produced the spreadsheet at an earlier date, the prosecution may
then have identified Baker as a rebuttal witness before trial and defendant may have had time to
locate a witness to contradict Baker’s testimony. Moreover, defendant does not dispute that she
had the ability to present a defense using the spreadsheet through her own trial testimony about
the spreadsheet. Although defendant speculates that she could have located a witness to
contradict Baker’s testimony, she does not provide an offer of proof regarding what this
hypothetical witness would testify to if called. Therefore, any prejudice to defendant stemming
from her inability to call a witness to contradict Baker’s testimony is mere speculation. An
appellant bears the burden of furnishing this Court with a record to verify the factual basis of any
argument upon which reversal is predicated, People v Elston, 462 Mich 751, 762; 614 NW2d
595 (2000), and “inferences must have support in the record and cannot be arrived at by mere
speculation,” People v Plummer, 229 Mich App 293, 301; 581 NW2d 753 (1998). In sum, the
admission of Baker’s testimony did not deprive defendant of her right to present her defense.

       Affirmed.



                                                               /s/ Jane M. Beckering
                                                               /s/ Jane E. Markey
                                                               /s/ Douglas B. Shapiro




                                                 -4-
