             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    PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                        March 3, 2020
                 Plaintiff-Appellee,

    v                                                                   No. 346738
                                                                        Wayne Circuit Court
    DOMINIQUE TEAL HYMAN,                                               LC No. 18-002763-01-FC

                 Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and KELLY and TUKEL, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial conviction of fleeing and eluding a police officer
(fleeing and eluding), MCL 257.602a(2). Defendant was sentenced as a fourth habitual offender,
MCL 769.12, to 46 months to 15 years’ imprisonment. We affirm.

                                             I. FACTS

        In January 2018, a man wearing a black ski mask, a cap on his head, and gloves robbed a
T-Mobile store in Detroit, Michigan, by pointing a gun at the two employees. A T-Mobile Loss
Prevention Manager obtained the International Mobile Equipment Identification Numbers1 (IMEI)
that were linked to the 17 stolen cellular telephones. The T-Mobile Loss Prevention Manager
entered the IMEIs into a system which monitors the cellular network for those IMEIs and sends
an alert if any of the cellular telephones are activated. Two of the stolen telephones were activated
and the telephone numbers for two of the telephones were identified. The T-Mobile Loss
Prevention Manager provided police with the certified record listing the telephones that had been
stolen and which telephones had been activated. Detroit Police Department (DPD) Detective
Edwardo Torres entered the telephone numbers into a database and determined that one of the
identified telephone numbers belonged to defendant. Detective Torres searched defendant’s name
in a criminal database which showed that defendant was on parole and that he resided on Western


1
  According to the T-Mobile Loss Prevention Manager, an IMEI is “basically a serial number that
is attached to every mobile phone. It is a unique identifier for that phone.”


                                                 -1-
Street in Detroit, Michigan. Detective Torres contacted defendant’s parole officer and confirmed
defendant’s address and telephone number. On the basis of this information, Detective Torres
obtained a search warrant for defendant’s residence.

        In February 2018, Detective Torres executed the search warrant for defendant’s residence
and police recovered two boxes of cellular telephones, a black pistol, and a bag that contained a
black ski mask and gloves. Before police executed the search warrant, DPD Officer Jordan Grace
observed defendant leave his home and drive away in a Dodge Caliber. Officer Grace informed
Officer Randolph Sturley that defendant was wanted and driving northbound on Western Street.
Officer Sturley identified the Dodge Caliber and initiated a traffic stop. Defendant pulled over to
the side of the road and as Officer Sturley approached the Dodge Caliber, he saw defendant’s face
in the side and rear view mirrors. As Officer Sturley approached defendant’s vehicle from the
rear, defendant “took off at a high rate of speed.”

        Defendant was later arrested and charged with two counts of armed robbery, MCL 750.529,
one count of felon in possession of a firearm (felon-in-possession), MCL 750.224f; three counts
of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b;
one count of carrying a concealed weapon (CCW), MCL 750.227; and one count of fourth-degree
fleeing and eluding a police officer (fleeing and eluding), MCL 257.602a(2).

        At the pretrial hearing, defense counsel entered into a stipulation which established that for
purposes of the felon-in-possession charge, defendant previously had been convicted of a felony.
At the pretrial hearing, the prosecution stated that it planned to call defendant’s parole officer as a
witness, in order to question him about the address and telephone number defendant had provided.
The prosecution also stated it did not intend to ask the parole officer about the crime for which
defendant was on parole and that there was no prejudice in allowing the parole officer to testify
because defendant had stipulated to having a previous felony. Defense counsel agreed that the
information was relevant and made no objection to defendant’s parole officer being called as a
witness.

        After hearing the evidence, the jury found defendant guilty of fleeing and eluding and
informed the court that they were deadlocked on all other counts. The trial court declared a mistrial
on the remaining counts. Defendant now appeals.

                                           II. ANALYSIS

       Defendant argues that his defense counsel was ineffective for failing to object to the
introduction of testimony of defendant’s parole officer. Defendant additionally argues that defense
counsel erroneously stipulated to the disclosure of defendant’s parolee status. We disagree.

                                       A. PRESERVATION

        To properly preserve a claim of ineffective assistance of counsel, a defendant must move
either for a new trial or a Ginther2 hearing in the trial court; failure to make any such motion


2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

                                                 -2-
“ordinarily precludes review of the issue unless the appellate record contains sufficient detail to
support the defendant’s claim.” People v Sabin (On Second Remand), 242 Mich App 656, 658-
689; 620 NW2d 19 (2000). Defendant failed to move for a new trial or a Ginther hearing. Thus,
these issues are unpreserved.

                                  B. STANDARD OF REVIEW

        Unpreserved issues are normally reviewed for plain error. People v Cain, 498 Mich 108,
116; 869 NW2d 829 (2015). Regardless of whether a claim of ineffective assistance is otherwise
properly preserved, if the trial court did not hold a Ginther hearing, “our review is limited to the
facts on the record.” People v Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000). “Whether
defense counsel performed ineffectively is a mixed question of law and fact; this Court reviews
for clear error the trial court’s findings of fact and reviews de novo questions of constitutional
law.” People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). “A finding is clearly
erroneous if it leaves this Court with a definite and firm conviction that the trial court made a
mistake.” People v Dillon, 296 Mich App 506, 508; 822 NW2d 611 (2012).

                                          C. ANALYSIS

                                   1. RELEVANT EVIDENCE

        Generally, “[a]ll relevant evidence is admissible[.]” MRE 402. “ ‘Relevant evidence’
means 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.” MRE 401. Even where evidence is considered to be relevant, the evidence “may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”
MRE 403. However, MRE 403 does not regulate evidence that is simply “prejudicial” because
“[r]elevant evidence is inherently prejudicial.” People v Mills, 450 Mich 61, 75; 537 NW2d 909
(1995) (internal quotations omitted). Rather, “[i]t is only when the probative value is substantially
outweighed by the danger of unfair prejudice that evidence is excluded.” Id. An analysis of unfair
prejudice takes into consideration whether the proposed evidence will “adversely affect the
objecting party’s position by injecting extraneous consideration” such as jury “bias, sympathy,
anger, or shock.” People v McGhee, 268 Mich App 600, 614; 709 NW2d 595 (2005).

        At trial, defendant’s trial attorney failed to object to the testimony of defendant’s parole
officer about where defendant lived at the time of the offense. After the robbery, four of the stolen
telephones were activated. After the telephones were activated, the T-Mobile Loss Prevention
Manager identified the telephone numbers associated with those devices, and provided Detective
Torres with this information. Detective Torres entered this information into a criminal history
database which showed defendant’s telephone number was a match to one of the telephone
numbers associated with two of the stolen devices. Detective Torres knew that defendant resided
on Western Street and that defendant was on parole. Detective Torres contacted defendant’s parole
officer to confirm defendant’s address and telephone number, and on the basis of this information,
Detective Torres obtained a search warrant for defendant’s home.

      Defendant concedes that his address and telephone number were relevant to the case;
however, defendant argues that his address and telephone number could have been introduced at

                                                -3-
trial by stipulation. Defendant argues that a stipulation would have avoided any unfair prejudice
stemming from his parole officer’s testimony, because the jury would not have known defendant
was on parole. “The danger in revealing a defendant’s parolee status is that a jury will recognize
that the defendant had previously been convicted of a crime. . . .” People v McDonald, 303 Mich
App 424, 436; 844 NW2d 168 (2013). We agree with defendant that the evidence is relevant since
the police contacted defendant’s parole officer to confirm his address in order to obtain a search
warrant. Further, defendant entered into a stipulation that he previously had been convicted of a
felony for purposes of the felon-in-possession count. Therefore, information establishing that
defendant previously had been convicted of a crime was minimally prejudicial because “[t]he jury
knew that defendant had a prior felony because he was charged with being a felon in possession
of a firearm and because the parties stipulated that defendant had a prior felony conviction.” Id.
Because the evidence was relevant, any objection based on relevance grounds would have been
futile. Thus, defendant’s trial counsel was not ineffective for failing to object to the testimony of
defendant’s parole officer. See People v Chambers, 277 Mich App 1, 11; 742 NW2d 610 (2007)
(“Counsel is not ineffective for failing to make a futile objection.”).

                                2. INEFFECTIVE ASSISTANCE

        A “defendant has the burden of establishing the factual predicate for his claim of ineffective
assistance of counsel. . . .” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

               Effective assistance of counsel is presumed, and the defendant bears a heavy
       burden of proving otherwise. To establish an ineffective assistance of counsel
       claim, a defendant must show that (1) counsel’s performance was below an
       objective standard of reasonableness under prevailing professional norms and (2)
       there is a reasonable probability that, but for counsel’s error, the result of the
       proceedings would have been different. [People v Lockett, 295 Mich App 165, 187;
       814 NW2d 295 (2012) (citations omitted).]

The “reasonable probability” standard can be satisfied by less than a preponderance of the
evidence. Trakhtenberg, 493 Mich at 56.

        The “reviewing court must not evaluate counsel’s decisions with the benefit of hindsight,”
but should “ensure that counsel’s actions provided the defendant with the modicum of
representation” constitutionally required. People v Grant, 470 Mich 477, 485; 684 NW2d 686
(2004), citing Strickland v Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
A defendant “is not entitled to the most canny lawyer available, only an adequate one.” United
States v Morrow, 977 F2d 222, 230 (CA 6, 1992) (en banc) (citation omitted). “Defense counsel
is given wide discretion in matters of trial strategy because many calculated risks may be necessary
in order to win difficult cases.” People v Unger, 278 Mich App 210, 242; 749 NW2d 272 (2008).
Thus, there is a “strong presumption that trial counsel’s performance was strategic,” and “[w]e
will not substitute our judgment for that of counsel on matters of trial strategy[.]” Id. at 242-243.

              Judicial scrutiny of counsel’s performance must be highly deferential. It is
       all too tempting for a defendant to second-guess counsel’s assistance after
       conviction or adverse sentence, and it is all too easy for a court, examining
       counsel’s defense after it has proved unsuccessful, to conclude that a particular act

                                                 -4-
       or omission of counsel was unreasonable. A fair assessment of attorney
       performance requires that every effort be made to eliminate the distorting effects of
       hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
       evaluate the conduct from counsel’s perspective at the time. [Strickland, 466 US
       at 689 (citation omitted).]

“Yet a court cannot insulate the review of counsel’s performance by calling it trial strategy.”
Trakhtenberg, 493 Mich at 52. “The inquiry into whether counsel’s performance was reasonable
is an objective one and requires the reviewing court to determine whether, in light of all the
circumstances, the identified acts or omissions were outside the wide range of professionally
competent assistance.” People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012) (quotation
marks and citation omitted). Accordingly, the reviewing court must consider the range of potential
reasons that counsel might have had for acting as he or she did. Id.

        Here, defendant’s status as a parolee was relevant because Detective Torres was able to
confirm defendant’s address and telephone number through information defendant had provided
to his parole officer. Due to the stipulation, which itself was less prejudicial than proof of a
previous felony, the jury already was aware that defendant previously had been convicted of a
felony. Additionally, prior to any evidence being presented at trial, the jury was instructed that an
element of the charge of felon in possession was that defendant previously had been convicted of
a felony. The trial court also gave a limiting instruction, specifically telling the jury that any
testimony regarding the fact that defendant was on parole was to be used only for the very limited
purpose of establishing defendant’s address and phone number. It is axiomatic that jurors are
presumed to follow their instructions.” People v Gayheart, 285 Mich App 202, 210; 776 NW2d
330 (2009). Further, at the pretrial hearing, defense counsel raised no objection to defendant’s
parole officer testifying at trial as long as the prosecution did not elicit any testimony regarding
the specific crime for which defendant was on parole. Because defendant’s status as a parolee was
relevant, the fact that the parties’ stipulated to the admission of defendant’s status as a convicted
felon, and given the jury instructions, the admission of this testimony was not unduly prejudicial.
Defendant has failed to make a sufficient showing that the result of his trial would have been
different if defense counsel had objected to the parole officer’s testimony or not stipulated to the
disclosure of defendant’s parolee status.

       [A] court need not determine whether counsel’s performance was deficient before
       examining the prejudice suffered by the defendant as a result of the alleged
       deficiencies. The object of an ineffectiveness claim is not to grade counsel’s
       performance. If it is easier to dispose of an ineffectiveness claim on the ground of
       lack of sufficient prejudice, which we expect will often be so, that course should be
       followed. [Strickland, 466 US at 697.]




                                                -5-
Because defendant could not have been prejudiced by his trial counsel’s failure to object to the
testimony, or by his trial counsel’s stipulation to defendant’s parolee status, he received the
effective assistance of counsel at trial.

                                     III. CONCLUSION

       Affirmed.

                                                           /s/ Amy Ronayne Krause
                                                           /s/ Kirsten Frank Kelly
                                                           /s/ Jonathan Tukel




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