                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 5, 2016
               Plaintiff-Appellee,

v                                                                  No. 325563
                                                                   Wayne Circuit Court
TERRY DWAYNE CATCHINGS,                                            LC No. 14-006406-FC

               Defendant-Appellant.


Before: JANSEN, P.J., and SERVITTO and M. J. KELLY, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial conviction of possession of a firearm during
the commission of a felony (felony-firearm), MCL 750.227b.1 Defendant was sentenced to two
years’ imprisonment for his conviction. We affirm.

       At approximately 9:00 p.m. on April 11, 2014, the victim, Daryl Smith, drove to East
English Village Preparatory Academy in Detroit, Michigan. As Daryl arrived at the academy
with his cousin and two friends, a talent show that was being performed at the academy was
ending and a fight had broken out. Daryl pulled his car into a parking spot and his passengers
got out of the car and began greeting others in the parking lot. Daryl’s cousin Truvell Smith,
noticed a commotion among a group of 10 to 15 people in the parking lot. Truvell and the others
got back into Daryl’s car in order to avoid any potential confrontation.

        As the men got back in the car, a red Chevrolet Impala began circling Daryl’s car and the
passengers within the Impala were hanging out of the car and playing loud music. The group of
10 to 15 people noticed the activity going on in the Impala and yelled over to the car to ask what
they were doing. Immediately thereafter, shots were fired from where the group of 10 to 15
people was standing towards the area where the Impala was circling Daryl’s car. Daryl
attempted to drive away, but was struck in the head by one of the bullets. Three witnesses at the
scene later identified defendant as one individual who was shooting.



1
 Defendant was also charged with, and acquitted of, first-degree, premeditated murder, MCL
750.316.


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       Police later executed search warrants at the homes of defendant and his codefendant,
Maurice Tate. At defendant’s home, police discovered a .22 caliber handgun and a .38 caliber
handgun. Officers also discovered ammunition in the home. A search of Tate’s home uncovered
a .40 caliber pistol, a .12 gauge pump shotgun, and an M-1 carbine, a semiautomatic military-
type weapon. In addition,various ammunition was also found in Tate’s home.

        Police conducted testing on the shell cases found at the scene. A ballistics expert,
Detective Sergeant Dean Molnar, concluded that five of the casings were fired from the .40
caliber weapon found in Tate’s basement. However, the bullet that struck Daryl was not fired
from this weapon. In addition, the bullet that struck Daryl did not match any of the other
weapons that were found and later admitted into evidence at trial.

      Defendant argues that the prosecution committed misconduct by offering these weapons
for admission into evidence and that the trial court erred in ultimately admitting them.
Defendant contends that because these weapons were not used to kill Daryl, evidence concerning
them was irrelevant and unfairly prejudicial. We disagree.

        “To preserve an evidentiary issue for review, a party opposing the admission of evidence
must object at trial and specify the same ground for objection that it asserts on appeal.” People v
Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). Counsel for defendant objected to the
admission of the guns found in the homes of defendant and Tate on the grounds that they were
irrelevant and prejudicial. Therefore, this issue is preserved for appeal.

        “A trial court's decision to admit evidence is reviewed for a clear abuse of discretion.”
People v Coy, 258 Mich App 1, 12; 669 NW2d 831 (2003). “An abuse of discretion is found
only if an unprejudiced person, considering the facts on which the trial court acted, would say
that there was no excuse for the ruling made.” Aldrich, 246 Mich App at 113.

       Defendant argues that the guns and ammunition that were found in his and Tate’s homes
should not have been admitted into evidence because they were not relevant to the murder in
question and were unfairly prejudicial. “Under the Michigan Rules of Evidence, evidence is
admissible only if it is relevant as defined by MRE 401 and is not otherwise excluded under
MRE 403.” People v Feezel, 486 Mich 184, 197; 783 NW2d 67 (2010). Relevant evidence is
evidence that 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. MRE 403 states that “evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.”

       Defendant is correct that none of the weapons found in the homes of defendant and Tate
were used to murder Daryl. However, this Court has held that evidence that police recovered
weapons from the defendant’s home may be relevant to show that defendant had access to
weapons. People v Taylor, 195 Mich App 57, 61; 489 NW2d 99 (1992). Here, the access to
weapons in relatively close proximity in place and time to the crime scene made defendant’s role
in Daryl’s death more probable than not.




                                                -2-
        Defendant also argues that any probative value the weapons may have is substantially
outweighed by the danger of unfair prejudice in contravention of MRE 403. However, the
prosecution elicited testimony from Molnar that the weapons found in the homes of defendant
and Tate did not match the bullet that struck Daryl. Therefore, it cannot be said that the
probative value of the weapons was substantially outweighed by any unfair prejudice that the
weapons created. Even assuming that the trial court abused its discretion in admitting the
weapons, the admission was not outcome-determinative given that there was testimony from
several eyewitnesses identifying defendant as a shooter on the night of the incident.

        Defendant also argues that the prosecution engaged in misconduct when it offered these
weapons for admission into evidence. “In order to preserve a claim of prosecutorial misconduct
for appellate review, a defendant must have timely and specifically objected below, unless
objection could not have cured the error.” People v Brown, 294 Mich App 377, 382; 811 NW2d
531 (2011). While counsel for defendant did object to the admission of the guns into evidence,
he did not do so on the grounds of prosecutorial misconduct. Therefore, this issue is unpreserved
for appeal.

        This Court reviews unpreserved issues for plain error affecting a defendant’s substantial
rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). In order to avoid
forfeiture of the issue, (1) error must have occurred, (2) the error must have been plain, i.e., clear
or obvious, and (3) the plain error affected the defendant’s substantial rights. Id. (citation
omitted). This third requirement is satisfied if the defendant can demonstrate prejudice, i.e., that
the error affected the outcome of the lower court proceedings. Id. If the defendant satisfies these
three requirements, this Court will only grant reversal when the plain error resulted in the
conviction of an innocent defendant or “seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 763-764.

        “Where there is no allegation that prosecutorial misconduct violated a specific
constitutional right, a court must determine whether the error so infected the trial with unfairness
as to make the resulting conviction a denial of due process of law.” People v Blackmon, 280
Mich App 253, 262; 761 NW2d 172 (2008). “A finding of prosecutorial misconduct may not be
based on a prosecutor's good-faith effort to admit evidence.” People v Abraham, 256 Mich App
265, 278-279; 662 NW2d 836 (2003). “The prosecutor is entitled to attempt to introduce
evidence that he legitimately believes will be accepted by the court, as long as that attempt does
not prejudice the defendant.” People v Noble, 238 Mich App 647, 660-661; 608 NW2d 123
(1999).

       Defendant argues that the prosecution inflamed the jury’s prejudice “by bringing forth
evidence that Mr. Catchings is a ‘gun toting’ criminal, and has the propensity to commit the
crime.” There is no evidence that the prosecution acted in bad faith when it introduced the
evidence. See People v Dobek, 274 Mich App 58, 80; 732 NW2d 546 (2007) (“While there may
be issues regarding whether this was improper other-acts evidence, we cannot conclude that the
prosecutor proceeded in bad faith, given that the trial court permitted the questioning and
testimony.”). There also is no evidence that defendant was prejudiced by the introduction of the
evidence. As stated above, there was testimony from Molnar that the weapons found in the
homes of defendant and Tate were not used to murder Daryl. Therefore, defendant cannot
demonstrate that his substantial rights were affected.

                                                 -3-
Affirmed.



                  /s/ Kathleen Jansen
                  /s/ Deborah A. Servitto
                  /s/ Michael J. Kelly




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