                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 30, 2014
               Plaintiff-Appellee,

v                                                                  No. 316553
                                                                   Wayne Circuit Court
ANTONIO TONY GLOSTER,                                              LC No. 12-010845-FC

               Defendant-Appellant.


Before: MURRAY, P.J., and SAAD and HOEKSTRA, JJ.

PER CURIAM.

       Defendant appeals his jury trial conviction of armed robbery under MCL 750.529 and his
sentencing under offense variable (OV) 10. For the reasons stated below, we affirm.

                          I. FACTS AND PROCEDURAL HISTORY

        This case involves a robbery that occurred in Hamtramck in October 2012. The victim
was brutally attacked by an assailant, who hit her in the back of the head and knocked her to the
ground in an attempt to steal her jewelry. When onlookers intervened to protect the victim, the
assailant fled, and an accomplice shot one of the intervening onlookers with a pistol. The
assailant and the shooter escaped the scene by car.

        The Hamtramck Police arrested defendant soon after the robbery and interrogated him
about his involvement in the robbery and other unspecified crimes that occurred in the metro
area. In the course of the interview, which was recorded on video, defendant admitted that he
acted as the getaway driver in the October 2012 Hamtramck robbery.

        The prosecution subsequently charged defendant as an aider and abettor to: (1) armed
robbery under MCL 750.529; and (2) unarmed robbery under MCL 750.530. The jury heard
extensive testimony from the victim, multiple eyewitnesses, and police officers. The prosecution
also submitted a video and related transcript of defendant’s police interview. Defendant objected
to the video and transcript because it supposedly included reference to irrelevant crimes that
would prejudice the jury against him. The trial court admitted the video and interview transcript,
albeit in an edited form, and issued a cautionary instruction that accusations of criminal conduct
by the interviewing police officers were not evidence.



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        After deliberation, the jury convicted defendant of armed robbery under MCL 750.529.
The trial court sentenced defendant to 85 months to 20 years in prison, applying OV 10 in the
process. On appeal, defendant argues that the trial court erred when it: (1) admitted the edited
video and transcript of his police interview, because significant portions of the interview were
not relevant and more prejudicial than probative; and (2) sentenced him under OV 10.

                                  II. STANDARD OF REVIEW

        A trial court’s decision on the admission of evidence is reviewed for an abuse of
discretion. People v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010). “However, decisions
regarding the admission of evidence frequently involve preliminary questions of law, such as
whether a rule of evidence or statute precludes admitting of the evidence.” Id. Questions of law
are reviewed de novo. Id. An error in admitting evidence is harmless unless defendant is able to
establish that it is more probable than not that the outcome of his trial would have been different,
but for the admission of the erroneously admitted evidence. People v Lukity, 460 Mich 484, 495-
496; 596 NW2d 607 (1999).

        When we review a claim that the trial court’s scoring of the sentencing guidelines was
erroneous, “the [trial] court’s factual determinations are reviewed for clear error and must be
supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d
340 (2013). “Whether the facts, as found, are adequate to satisfy the scoring conditions
prescribed by statute, i.e., the application of the facts to the law, is a question of statutory
interpretation, which an appellate court reviews de novo.” Id.

                                         III. ANALYSIS

                        A. ADMISSION OF THE POLICE INTERVIEW

        Generally, all relevant evidence is admissible and irrelevant evidence is inadmissible.
MRE 402. Evidence is relevant if it has “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 if its probative value
is substantially outweighed by the danger of unfair prejudice. MRE 403. Nearly all evidence
offered by the prosecution will prejudice a criminal defendant to some extent. See People v
Vasher, 449 Mich 494, 501; 537 NW2d 168 (1995). Thus, evidence is only excluded when it is
unfairly prejudicial to defendant—i.e., when its probative value is outweighed by the risk of
unfair prejudice. MRE 403; People v Mills, 450 Mich 61, 75; 537 NW2d 909 (1995), mod on
other grounds 450 Mich 1212 (1995).

        Here, defendant asserts that the trial court erred when it refused to redact certain portions
from the video and transcript of his police interview—specifically, accusations made by the
interrogating police officers that he participated in other robberies in addition to the charged
offense. During the interrogation, defendant consistently denied involvement in the other alleged
crimes. These video and transcript portions, defendant says, were not relevant and more
prejudicial than probative.

       Defendant’s assertions are unavailing and incorrect as a matter of law, because the trial
court properly admitted the video and transcript of his interrogation. The sections of which he
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complains were relevant—defendant’s denial of involvement in those other crimes tended to
make his admission of involvement in the charged crime more convincing. Nor were these
portions of the transcript unfairly prejudicial. The accusations made by the interrogating
officers—and defendant’s consistent denial of those accusations1—were so vague that it is
extremely unlikely the jury would have assumed defendant participated in the other robberies,
and conclude on this basis that he committed the charged offense. Nor did the prosecution
provide any additional evidence at trial on the other robberies, or seek to link defendant to them.
And, as noted, the trial court gave the jury an instruction that the accusations of the police
officers could not be considered evidence. Jurors are presumed to follow the trial court’s
instructions. People v Meissner, 294 Mich App 438, 457; 812 NW2d 37 (2011).

        In any event, had the trial court erred in admitting the video and transcript sections, the
error would have been harmless. Again, the specific comments of which defendant complains in
the video and transcript were quite vague, and it is extremely unlikely the jury reached its guilty
verdict based on these comments. And the jury also heard unrelated evidence—in the form of
extensive testimony from the victim, eyewitnesses, and police officers—that established
defendant’s guilt.

        Accordingly, defendant is unable to establish that the outcome of the trial would have
been different, but for the admission of relevant portions of the video and transcript of his police
interview.

                                            B. OV 10

        OV 10 addresses the exploitation of a vulnerable victim. MCL 777.40(1). A defendant is
assessed 15 points if predatory conduct is involved in the offense. MCL 777.40(1)(a). By
contrast, zero points should be assessed when the “offender did not exploit a victim’s
vulnerability.” MCL 777.40(1)(d). Predatory conduct means “preoffense conduct directed at a
victim . . . for the primary purpose of victimization.” MCL 777.40(3)(a). The Legislature did
not intend “predatory conduct” to include any manner of “preoffense conduct.” People v
Huston, 489 Mich 451, 461-462; 802 NW2d 261 (2011). Instead, the conduct must be that
which is “commonly understood as being ‘predatory’ in nature, e.g., lying in wait and stalking,
as opposed to purely opportunistic criminal conduct or ‘preoffense conduct involving nothing
more than run-of-the-mill planning to effect a crime or subsequent escape without detection.’ ”
Id. at 462.

        Here, defendant wrongly claims that the trial court erred when it assessed 15 points for
OV 10. Defendant aided and abetted the commission of an offense that involved the exact sort
of “predatory conduct” OV 10 is designed to punish. A witness testified that before the robbery,
he saw defendant’s co-offender standing outside the market where the crime took place. A line
of sight existed between where the co-offender stood and where defendant waited in the getaway
vehicle. While the co-offender stood at the corner and defendant waited in the car, the co-


1
 Defendant’s denial of involvement in these other crimes was supported by the testimony of one
of the interrogating officers.


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offender was passed by a lone gentleman, two individuals, and then a group of children. Finally,
the victim, a lone female wearing a visible necklace, left the market, and the co-offender attacked
her.

        From this evidence, the trial court properly found that defendant and his co-offender
engaged in predatory conduct as they targeted a particular type of victim—a vulnerable
woman—and then laid in wait until the perfect victim crossed their path. Defendant’s assertions
to the contrary are without merit, and because he has failed to establish a scoring error, he is not
entitled to resentencing.2 See MCL 769.34(10).

       Affirmed.



                                                             /s/ Christopher M. Murray
                                                             /s/ Henry William Saad
                                                             /s/ Joel P. Hoekstra




2
  Defendant’s assertions that he was not involved in the selection of the victim, and thus should
not have his crime assessed under OV 10, are belied by the record. Leaving aside the issue of
whether a trial court may consider the conduct of a co-offender when scoring OV 10, the record
demonstrates that the trial court scored defendant for his conduct—specifically, his role in
selecting a vulnerable victim.


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