                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 15, 2015
                Plaintiff-Appellee,

v                                                                  No. 317385
                                                                   Wayne Circuit Court
LAMAURICE CHICO GIBSON,                                            LC No. 13-002339-FC

                Defendant-Appellant.


Before: DONOFRIO, P.J., and BORRELLO and STEPHENS, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial convictions of possessing a firearm during the
commission of a felony, MCL 750.227b, and carrying a concealed weapon (CCW), MCL
750.227.1 The trial court sentenced defendant to two years in prison for the felony-firearm
conviction, to be served concurrent with a sentence of three years’ probation for the CCW
conviction. We affirm.

        At the time of trial, the 14-year-old complainant testified that while he was walking to a
store to pay his cell phone bill, he was approached by two young men driving an older model
white Pontiac Grand Prix. One of the men, whom the complainant identified as defendant,
exited the vehicle, pointed a gun at the complainant, and then demanded the boy’s valuables.
After the complainant gave defendant his cell phone and a $50 bill, defendant returned to the car
and drove away. Later that night, the complainant saw defendant in the same white Grand Prix
in the vicinity of the robbery. At that time, the complainant obtained a license plate number
from the vehicle. With this information, the police were able to trace the vehicle to defendant’s
home. Defendant was eventually arrested.

       For his sole claim of error, defendant takes issue with an evidentiary ruling of the trial
court. Defendant preserved the general evidentiary issue by making an offer of proof at trial.
MRE 103(a). This Court reviews a trial court’s evidentiary rulings for an abuse of discretion.
People v Benton, 294 Mich App 191, 195; 817 NW2d 599 (2011). However, defendant did not
argue below, as he does now, that the exclusion of this evidence violated his constitutional right


1
    Defendant was acquitted of an additional charge of armed robbery, MCL 750.529.


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to present a defense. Consequently, the constitutional issue is not preserved. People v Coy, 258
Mich App 1, 12; 669 NW2d 831 (2003). Unpreserved claims of constitutional error are
reviewed for plain error affecting substantial rights. Id.

        Defendant argues that the trial court erred when it precluded him from introducing
evidence that at least two cars matching the general description of defendant’s car were owned
and driven in the same area as the robbery. Specifically, defendant sought to admit photographs,
taken the day before trial, of two white Pontiac Grand Prixs. One of the photographs depicted a
2000 Grand Prix owned by defendant’s neighbor. Defendant argued that if the complainant
misidentified the vehicle, then he likely misidentified defendant as the perpetrator. The
prosecution argued that the evidence of other similar vehicles in the area, not of the same make
and model year of defendant’s car, was irrelevant. Ultimately, the court excluded the
photographs and related testimony as irrelevant. The trial court noted that the photographed
vehicles were not of the same year, make, and model of defendant’s vehicle. On appeal,
defendant argues that the evidence was relevant and the exclusion of the evidence deprived him
of the right to present a defense. We disagree.

        Generally, a defendant has a constitutional right to present a defense, but this right is not
absolute. The defendant must still comply with established rules of evidence and procedure that
have been promulgated to ensure a fair trial. People v Kowalski, 492 Mich 106, 139; 821 NW2d
14 (2012). To this end, the right to present a defense extends only to relevant evidence. People
v Danto, 294 Mich App 596, 604: 822 NW2d 600 (2011). 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.
Generally, all relevant evidence is admissible and irrelevant evidence is inadmissible. MRE 402.
In this case, the trial court properly excluded the evidence because defendant’s offer of proof was
insufficient to establish the relevancy of the evidence.

        Defendant sought to advance a defense that the complainant mistook defendant’s car for
that of the actual perpetrator’s, which led to the erroneous identification of defendant as the
robber. However, the evidence defendant sought to admit had no relevance to the purpose for
which it was offered. The photographs did not depict cars of the same year, make, and model of
defendant’s vehicle. Moreover, the photos of these vehicles were taken the day before trial. As
such, they did not depict cars traveling near the area of the robbery at the time of the robbery.
Thus, these photographs were irrelevant to establishing defendant’s stated defense. The
photographs and related testimony did not make more probable the proposition that the
complainant mistook defendant’s vehicle for that of his actual assailant. Thus, the trial court did
not abuse its discretion in excluding the proffered photographs and related testimony.

        Further, the exclusion of the proffered evidence did not deprive defendant of a defense.
At the time of trial, defendant fully cross-examined the complainant regarding his ability to
identify accurately the white Grand Prix. Then, during the examination of a Detroit police
officer, defendant elicited that the officer had seen a lot of cars similar to defendant’s around the
area. Thus, defendant was able to argue to the jury that the complainant misidentified
defendant’s very common car, and by virtue of this error, misidentified defendant as the
perpetrator. A defendant is not deprived of the right to present a defense if the defendant is


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otherwise able to present his theory to the jury with other evidence. People v Herndon, 246
Mich App 371, 411-412; 633 NW2d 376 (2001).

      Affirmed.

                                                       /s/ Pat M. Donofrio
                                                       /s/ Stephen L. Borrello
                                                       /s/ Cynthia Diane Stephens




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