                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      December 12, 2017
               Plaintiff-Appellee,

v                                                                     No. 333616
                                                                      Van Buren Circuit Court
ANTONIO LEWIS,                                                        LC No. 12-018553-FC

               Defendant-Appellant.


Before: MARKEY, P.J., and HOEKSTRA and RONAYNE KRAUSE, JJ.

PER CURIAM.

       Defendant appeals by right his jury trial conviction of second-degree murder, MCL
750.317. The trial court sentenced defendant to 39 to 80 years’ imprisonment as a second-
offense habitual offender, MCL 769.10. We affirm.

        This case arises from the death of Ivory Shaver. Shaver was last seen by family and
friends on November 18, 2011; four months later, his body was discovered half-submerged in a
farm’s drainage ditch. Eventually, police charged defendant, Shaver’s half-brother, with murder.
As this Court described on previous appeal,

               The evidence amassed against defendant was entirely circumstantial, but
       decidedly powerful. Defendant was released from jail on the same day that
       Shaver went missing. By his own admission, defendant was the last person to see
       Shaver alive. While Shaver’s whereabouts remained unknown, defendant
       secreted Shaver’s cell phone and used it to send text messages, ostensibly written
       by Shaver, to Shaver’s girlfriend and family members. Several of the messages
       purported to explain Shaver’s absence. On the day Shaver disappeared, defendant
       exchanged a car—owned by Shaver’s girlfriend—for money defendant’s former
       cellmate used to post defendant’s bail. Defendant later claimed that he had seen
       Shaver drive away in the vehicle. Defendant was familiar with the remote area
       where Shaver’s body was found, and during a fight with his girlfriend, threatened
       that “he’d kill [her] too.” [People v Lewis, unpublished opinion per curiam of the
       Court of Appeals, issued March 5, 2015 (Docket No. 318294), p 2.]

After defendant was first convicted of second-degree murder, he successfully appealed this
conviction on the basis that the trial court erred in denying his request for self-representation. Id.
at 17. After a new trial on remand, defendant was again convicted of second-degree murder.
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        In this appeal, defendant argues that the trial court erred in admitting defendant’s journal
entry into evidence because it was not admitted for a proper purpose under MRE 404(b) and
because it was unfairly prejudicial. We disagree.

        “The decision whether evidence is admissible is within the trial court’s discretion and
should only be reversed where there is a clear abuse of discretion.” People v Starr, 457 Mich
490, 494; 577 NW2d 673 (1998). An abuse of discretion exists if a trial court’s decision falls
outside the range of principled outcomes. People v Feezel, 486 Mich 184, 192; 783 NW2d 67
(2010). When the decision regarding the admissibility of evidence involves a preliminary
question of law such as construing a rule of evidence or statute, appellate review is de novo.
People v Layher, 464 Mich 756, 761; 631 NW2d 281 (2001). Preserved evidentiary error will
merit reversal only if on review of the entire record, it is more probable than not that the error
was outcome determinative. People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013).

        Because defendant failed to preserve this issue, our review is limited to plain error.
People v Knox, 469 Mich 502, 508; 674 NW2d 366 (2004). Accordingly, defendant may obtain
relief only if “(1) error . . . occurred, (2) the error was plain, i.e., clear or obvious, (3) and the
plain error affected substantial rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130
(1999); see also MRE 103(d). Reversal is warranted only where “the plain, forfeited error
resulted in the conviction of an actually innocent defendant or when an error seriously affected
the fairness, integrity, or public reputation of the judicial proceedings independent of the
defendant’s innocence.” Carines, 460 Mich at 763 (quotation marks and citation omitted).

        Generally, all relevant evidence is admissible. MRE 402; People v Roper, 286 Mich App
77, 91; 777 NW2d 483 (2009). Relevant evidence is “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. Relevant evidence may be
excluded, however, if its probative value is substantially outweighed by the danger of unfair
prejudice. MRE 403. The assessment of evidence’s probative versus prejudicial effect requires
a balancing of several factors, including the necessary time to present the evidence, whether the
evidence is needlessly cumulative, how directly probative the evidence is, how necessary the fact
to be proven by the evidence is, whether the evidence would mislead the jury, and whether there
is an alternate and less potentially harmful way to prove the fact. People v Blackston, 481 Mich
451, 462; 751 NW2d 408 (2008). The determination of whether the probative value of the
evidence is substantially outweighed by its prejudicial effect is best left to the trial court’s
contemporaneous assessment of the evidence. People v Waclawski, 286 Mich App 634, 670;
780 NW2d 321 (2009).

        Despite its relevancy, evidence of a person’s character is generally not admissible to
prove the propensity of a defendant to act accordingly. MRE 404(a). Michigan excludes such
evidence for substantive purposes to avoid the danger of conviction based on a defendant’s
history of other misconduct. Waclawski, 286 Mich App at 670. But evidence of other crimes,
wrongs, or acts may be admissible for other purposes:

              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,

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       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. [MRE 404(b)(1).]

For evidence of other acts to be admissible under MRE 404(b), it must be (1) offered for a proper
purpose, (2) be relevant under MRE 402, and (3) not have a probative value substantially
outweighed by its potential for unfair prejudice. People v VanderVliet, 444 Mich 52, 55; 508
NW2d 114 (1993), amended 445 Mich 1205 (1994).

         As emphasized by our Supreme Court, evidence is inadmissible under MRE 404(b) only
if it constitutes evidence of crimes, wrongs, or acts other than the “ ‘conduct at issue in the case’
that risks an impermissible character-to-conduct inference.” People v Jackson, 498 Mich 246,
262; 869 NW2d 253 (2015). Accordingly, “if the proffered other acts evidence is logically
relevant, and does not involve the intermediate inference of character, Rule 404(b) is not
implicated.” VanderVliet, 444 Mich at 64. To assess whether MRE 404(b) is implicated, the
trial court must question whether the evidence is relevant to a fact in issue or whether the
evidence seeks to only demonstrate a defendant’s propensity. Id.

       In the present case, the trial court admitted the following journal entry:

       Daily log. February 17, 2012. It’s been over 36 hours since I last seen my
       beautiful girl, Christina Rogers. Yes, I’m disappointed she snuck out and left,
       but, according to God, I was being an ass. I don’t blame Chris for it. It took for
       me to hit rock bottom to understand how much I love her. As of today at 11:36
       p.m. I am killing Tony and allowing Antonio to take over. Antonio won’t hurt
       Chris. He loves her too much to do so. About 3:00 today I called Sue Brennan
       and rescheduled my appointment I cancelled and, in eight hours, I will go to the
       library to look up addresses to get lawsuits and children back, along with filing
       for Social Security so I can have money to get a business started. Today, I
       weighed myself and I’m down to 240 pounds. Yes. Not much eating, but did
       some exercises. This daily log is done every day and, after seven days, it’s sent to
       Christina to let her know how I am doing. Hopefully I sleep better tonight. Tony
       no longer lives. Please don’t mistake me for him. My name is Antonio Lewis.
       Tony is my first murder. Tonight, I draw truck for business and send letters to
       transport design and performance trailers for estimates. Good night.

        This evidence was relevant because it demonstrated that defendant called Brennan, his
mental health counselor at Van Buren Community Mental Health (CMH), on February 17, 2012,
and Shaver’s phone records, another admitted exhibit at trial, indicate that Shaver’s phone was
used to call Van Buren CMH on the same day. Accordingly, the journal entry is probative of the
fact that defendant was in possession of Shaver’s phone. Because Shaver was found with an
empty cell phone holster and several witnesses testified that Shaver never left home without his
phone, the evidence supports an inference that defendant murdered Shaver.

       Moreover, the probative value of the evidence is not substantially outweighed by the
danger of unfair prejudice. MRE 403. The potentially harmful effect of the evidence was its

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reference to harming Rogers and to defendant’s mental health. However, in the journal entry,
defendant only generally references hurting Rogers and a determination to treat her better. It
does not state that defendant physically harmed Rogers or emotionally abused her. As to
defendant’s mental health, although the journal entry indicates that defendant was seeking
mental health treatment, it does not indicate that defendant’s mental health was debilitating or
made defendant violent. To the extent that a person’s hurting a significant other in the course of
a relationship and his seeking mental health treatment is prejudicial, we believe it is outweighed
by the probative value of the evidence. The journal entry directly linked defendant to the
possession of Shaver’s phone and made it more probable that defendant was Shaver’s murderer.
And although Rogers also testified to seeing Shaver’s phone in defendant’s dresser, the journal
entry was not needlessly cumulative considering defense counsel’s extensive attempts to
discredit Rogers’s testimony. In sum, the evidence was highly probative and not substantially
outweighed by the danger of unfair prejudice. See Blackston, 481 Mich at 462. Therefore, the
trial court did not plainly err in so finding. Waclawski, 286 Mich App at 670, 672.

        Finally, the evidence was admissible despite MRE 404’s ban on propensity evidence
because the journal entry was not offered for the prohibited purpose of demonstrating that
defendant committed the charged crime in accordance with a pattern of historical conduct. See
Jackson, 498 Mich at 262. The evidence was offered to demonstrate that defendant had Shaver’s
phone in his possession, making it more probable that defendant was Shaver’s murderer. It was
not offered to demonstrate that because defendant harmed Rogers in the past, he murdered
Shaver. Because the evidence was relevant to identifying defendant as the killer and did not
involve an intermediate inference of character, MRE 404(b) was not implicated. See
VanderVliet, 444 Mich at 64. Moreover, the trial court gave a limiting instruction prohibiting the
jury from drawing an improper inference from the evidence, and jurors are presumed to follow
their instructions. Waclawski, 286 Mich App at 674, 710. This instruction eliminated any
potential unfair prejudice to defendant. See People v Houston, 261 Mich App 463, 469-470; 683
NW2d 192 (2004), aff’d but modified on other grounds 473 Mich 399 (2005). And finally,
because the evidence was properly admitted under MRE 404(b), defendant cannot demonstrate
that the prosecutor’s failure to notify him before trial that the prosecutor planned to introduce
evidence under MRE 404(b) affected his substantial rights. Id at 470.

        Defendant also argues that defense counsel was ineffective for failing to object to the
admission of the journal entry based on relevancy, unfair prejudice, or improper purpose. This
claim must fail because the evidence was properly admitted and defense counsel is not required
to raise futile objections. See People v Fike, 228 Mich App 178, 182; 577 NW2d 903 (1998).

        Finally, defendant argues that the trial court erred in allowing the admission of Rogers’s
testimony detailing an incident wherein defendant choked Rogers and stated “I’ll kill you, too”
because it was unfairly prejudicial and was not properly admitted under MRE 404(b). We again
disagree. Because defendant preserved the issue whether the admission of this evidence was
unfairly prejudicial, we review this portion of defendant’s argument for an abuse of discretion
and defendant’s remaining argument for plain error. See People v Kimble, 470 Mich 305, 310;
684 NW2d 669 (2004) (“An objection based on one ground is usually considered insufficient to
preserve an appellate attack based on a different ground.”); MRE 104(a)(1), (d).



                                               -4-
        As defendant concedes, defendant’s statement of “I’ll kill you too” was clearly
admissible under MRE 801(d)(2) as a party statement. As to Rogers’s testimony that when
defendant made the statement, he was choking her, we find that this testimony was properly
admitted. Rogers’s testimony concerning defendant’s attack was introduced as context for his
inculpatory statement. Rogers’s testimony was not offered for the prohibited purpose of
demonstrating that defendant committed the charged crime in accordance with a pattern of
historical conduct. See Jackson, 498 Mich at 262. Rogers’s testimony provided the needed
background for defendant’s statement, demonstrating that defendant was referring to an actual
murder he committed. As the prosecutor argues on appeal, without this context, defendant’s
statement cannot be fully understood. Moreover, in addition to defendant’s being responsible for
Shaver’s death, the evidence also indicates that Shaver’s death was not accidental. Accordingly,
because the evidence was not offered to demonstrate defendant’s propensity for violence, it was
properly admitted under MRE 404. See VanderVliet, 444 Mich at 64.

        Moreover, the evidence was relevant under MRE 401. The evidence, combined with
defendant’s statement, indicates that defendant was responsible for Shaver’s death. Rogers’s
testimony in particular demonstrates that defendant’s statement referred to when defendant killed
another human being. Considering the argument leading up to defendant’s physical attack on
Rogers—concerning Rogers’ showing Shaver a tattoo— we find it also is probative of the fact
that defendant’s statement referred to Shaver’s death.

        This high probative value was not substantially outweighed by the danger of unfair
prejudice. See MRE 403. Although there is a risk that presenting a subsequent act of violence
will lead the jury to impermissibly infer character-to-conduct, here the evidence was highly
probative. Further, the evidence was a small part of a seven-day trial. See Blackston, 481 Mich
at 462. And, as mentioned previously, the trial court gave a limiting instruction prohibiting the
jury from drawing an improper inference from the evidence, eliminating any potential unfair
prejudice to defendant. See Waclawski, 286 Mich App at 710; Houston, 261 Mich App at 419-
470. Accordingly, the evidence was properly admitted, and defendant is not entitled to relief.

       We affirm.

                                                           /s/ Jane E. Markey
                                                           /s/ Joel P. Hoekstra
                                                           /s/ Amy Ronayne Krause




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