                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 9, 2018
              Plaintiff-Appellee,

v                                                                  No. 340845
                                                                   Berrien Circuit Court
LARRY DAVID SMITH,                                                 LC No. 2016-00534-PC

              Defendant-Appellant.


Before: BOONSTRA, P.J., and O’CONNELL and TUKEL, JJ.

PER CURIAM.

        Defendant appeals by right his convictions, following a jury trial, of safe breaking,
MCL 750.531, and breaking and entering a building with the intent to commit larceny,
MCL 750.110. Defendant was sentenced as a fourth habitual offender, MCL 769.12, to
concurrent prison terms of 10 to 35 years for the safe breaking conviction and 6 to 19 years for
the breaking and entering conviction. We affirm.

                  I. PERTINENT FACTS AND PROCEDURAL HISTORY

        In August 2015, a Dollar General store in Coloma Township was burglarized. Angel
Tunstill was the assistant manager at the time. When Tunstill arrived for work on the morning of
August 23, 2015, she found that the alarm had been silenced, the cash registers were open, a
surveillance camera was broken, and the safe had been drilled into and broken open. Tunstill
called the police and the store’s general manager, Twila Conley. Conley determined that a bank
deposit bag containing just over $3,000 was missing from the safe, and approximately $1,500 in
other currency was also missing from the safe and cash registers.

        Officer Andrew Ulleg of the Coloma Township Police Department was one of the
officers who responded to Tunstill’s call. Officer Ulleg discovered that two holes had been cut
into the exterior of the building on the east and west sides. He also discovered that phone cords
and internet cables had been severed inside the store, disabling the alarm system. Officer Ulleg
confirmed that the safe had been drilled open and that a surveillance camera had been broken.

        Several surveillance cameras within the Dollar General had not been broken. The
surveillance video recovered from those cameras showed one masked individual inside the store
from around 1:39 a.m. to 2:59 a.m. The individual was captured on several cameras holding a

                                               -1-
clear bottle with a black cap and red liquid. Conley testified that this bottle appeared to be a
fruit-punch-flavored Powerade® bottle, also known as “red Powerade®.” Conley testified that a
bottle of red Powerade® was missing from the store’s cooler, and that she could tell because “we
pull everything forward every night and there was one missing.” Conley admitted, however, that
she had not closed the store the night before.

        Coloma Township officers searched the outside area surrounding the Dollar General.
Officer Brett Langston discovered a bank deposit bag and a red Powerade® bottle in a cornfield
approximately 400 feet from the building. The Powerade® bottle was located approximately 10
feet from the deposit bag.

        DNA recovered from the Powerade® bottle was tested by the Michigan State Police
forensic laboratory. The DNA from the bottle matched DNA from defendant.

       Before trial, both the prosecution and defendant filed motions relating to the admission of
evidence. Defendant moved for a Daubert hearing1 concerning the admissibility of the results of
the DNA testing done in this case. The trial court2 granted the motion and determined, following
the Daubert hearing, that the challenged DNA evidence was admissible. The prosecution moved
under MRE 404(b) for the admission of other-acts evidence related to two prior incidents: the
burglary of a Dollar General Store in Ligonier, Indiana in 2009, which defendant pleaded guilty
to having aided and abetted, and a break-in at the Pine View Golf Club in St. Joseph County in
2015. The trial court granted the motion to admit this evidence.

         At trial, Thomas and Steven Scott, owners and operators of Pine View Golf Club,
testified concerning the 2015 break-in, as did Sergeant Jeremiah Abnet of the St. Joseph County
Sheriff’s Department. In July 2015, the exterior back door of the clubhouse was broken into, an
interior door was pried open, a keypad for the alarm system was damaged, and the phone line
was cut. A filing cabinet and cash register were broken into with a pry bar and sledge hammer.
Surveillance video from the clubhouse showed a masked individual removing a Powerade®
bottle from a cooler behind the bar; the video was black and white, so the color of the liquid in
the bottle could not be determined. A red Powerade® bottle was subsequently found on the
grounds of the golf course near two pry bars and a sledge hammer, approximately 200 yards
from the clubhouse. DNA was recovered from the Powerade® bottle and matched to
defendant’s DNA.

        Sergeant Mark Heffelfinger of the Indiana State Police testified regarding the 2009 break-
in at a Dollar General in Ligonier, Indiana. Sergeant Heffelfinger testified that the Indiana State


1
 The purpose of a Daubert hearing is to determine whether expert testimony is admissible under
MRE 702. See Daubert v Merrell Dow Pharm, Inc., 509 US 579, 593-595; 113 S Ct 2786; 125
L Ed 2d 469 (1993); People v Kowalski, 492 Mich 106, 120; 821 NW2d 14 (2012).
2
 Judge Dennis M. Wiley presided over the majority of the pre-trial proceedings in this case.
After Judge Wiley moved to the civil division of the Berrien Circuit Court, Judge Sterling R.
Schrock was assigned to this case and presided over the trial and sentencing.


                                               -2-
Police had been conducting surveillance of defendant’s vehicle via a GPS monitoring device.
On November 14, 2009, defendant’s vehicle was driven to an area near the Dollar General in
Ligonier. When police officers arrived at the store, they found that an opening had been cut in
an exterior wall, telephone wires had been cut, a security camera had been damaged, and a safe
had been broken into with a drill. Defendant and another man, Steven Bilyeu, were arrested for
the burglary. Defendant ultimately pleaded guilty to aiding and abetting the burglary of the
Dollar General; a copy of the Indiana judgment of conviction was entered into evidence. Bilyeu
testified as a defense witness and stated that defendant had only driven him to and from the site
of the burglary. Bilyeu denied any further involvement by defendant, and denied ever teaching
defendant how to disable alarm systems or break into safes. Bilyeu also testified that defendant
had a hernia operation in 2015.

        Both the prosecution and defendant presented experts in the field of DNA analysis. The
prosecution’s expert, Kirk DeLeeuw of the Michigan State Police forensic laboratory biology
unit, testified that the DNA taken from the red Powerade® bottle in this case contained DNA
from two donors, a major donor and a minor donor. There was insufficient DNA present from
the minor donor to compare to any particular DNA profile. The major donor’s DNA profile was
matched, using comparison software called STRmix™, to defendant’s DNA. DeLeeuw testified
that it was at least 17 octillion3 times more probable that the DNA on the red Powerade® bottle
was from defendant than from an unrelated contributor. DeLeeuw also testified that he had
performed the DNA testing on the Powerade® bottle recovered from the Pine View Golf Club in
2015. This testing was not performed using the STRmix™ software, but used software provided
by the FBI.

        Defendant’s expert, Dr. Karl Reich, testified that there was no way of knowing how long
the DNA collected from the Powerade® bottle had been there or how it had gotten there. Dr.
Reich testified that the identity of the major DNA profile was “not in dispute” and opined that
there was “no doubt” that the DNA from the major donor came from defendant. Dr. Reich
further testified, however, that he believed that the “enormous” probability number generated by
STRmix™ was not only “useless and wasteful” but “inappropriate.” Yet, Dr. Reich found “no
deficiencies” in the reports generated from the Michigan State Police laboratory’s analysis of the
DNA from the Powerade® bottle. Dr. Reich also discussed the concept of DNA transfer.

        At the close of proofs, defendant requested that the trial court instruct the jury that “mere
presence” is not sufficient for a finding of aiding and abetting. The trial court denied the request,
stating that the jury was not going to be instructed that defendant could be convicted as an aider
and abettor and that there was therefore no need for a mere presence instruction.

       Defendant was convicted and sentenced as described. This appeal followed.




3
 One octillion equates to one thousand trillion trillion, represented by the number 1 followed by
27 zeroes. See Merriam-Webster’s Collegiate Dictionary (11th ed), p 852.


                                                -3-
                                   II. JURY INSTRUCTIONS

        Defendant argues that the trial court erred by declining to give a “mere presence” jury
instruction. In his Standard 44 brief, defendant also argues that the trial court erred by failing to
give several other instructions, specifically (1) an instruction that “if circumstantial evidence can
be interpreted in more than one way, then the jury must interpret same in favor of defendant,” (2)
an instruction that the crime of breaking and entering is complete upon entry, (3) an instruction
on “an improper compromise verdict,” and (4) an instruction on the standard for the admission of
other-acts evidence. We disagree in all respects. We review de novo issues of law arising from
jury instructions, but we review for an abuse of discretion a trial court’s determination whether
an instruction is applicable to the facts of a case. See People v Gillis, 474 Mich 105, 113; 712
NW2d 419 (2006). However, when a defendant fails to object or timely request an instruction,
our review is limited to whether there was plain error affecting substantial rights. See
MCL 768.29; People v Carines, 460 Mich 750, 764-765; 597 NW2d 130 (1999); People v
Martin, 271 Mich App 280, 353; 721 NW2d 815 (2006). A defendant’s affirmative approval of
an instruction waives appellate review of that instruction. People v Hall (On Remand), 256 Mich
App 674, 679; 671 NW2d 545 (2003).

        A trial court must instruct the jury regarding the applicable law in a manner that fully and
fairly presents the case to the jury in an understandable manner. People v Moore, 189 Mich App
315, 319; 472 NW2d 1 (1991). To that end, “[t]he instructions must include all elements of the
charged offenses and any material issues, defenses, and theories if supported by the evidence.”
People v McGhee, 268 Mich App 600, 606; 709 NW2d 600 (2005).

         Defendant argues that the trial court erred by denying his request for a “mere presence”
instruction because such an instruction would have allowed the jury to conclude that he had
merely been present at the burglary of the Dollar General in Ligonier, Indiana to which he had
pleaded guilty to aiding and abetting. Defendant does not explain or support with authority his
apparent contention that the trial court was required to instruct the jury that it could essentially
relitigate the Indiana case in its deliberations in this case. Further, as discussed below, the jury
received several limiting instructions regarding the use of the other-acts evidence admitted at
trial, and was informed of defendant’s role in the Indiana burglary. The current charges against
defendant were not based on an aiding and abetting theory and the jury was not instructed that
defendant could be convicted as an aider and abettor. Therefore, there was no need for a “mere
presence” instruction and the trial court did not err by declining to give one. Gillis, 474 Mich at
113; McGhee, 268 Mich App at 606.

       The trial court also did not err by failing to provide the additional instructions that
defendant identifies in his Standard 4 brief. We note that, although defendant claims to have
requested all of these instructions in a pre-trial motion, our review of that motion reveals that
defendant only requested a “mere presence” instruction and an instruction concerning


4
 A supplemental appellate brief filed in propria persona pursuant to Michigan Supreme Court
Order 2004-6, Standard 4.


                                                -4-
circumstantial evidence, both of which were denied by the trial court at a pre-trial motion
hearing. Defendant has therefore forfeited, at the very least, review of the other instructions.
Martin, 271 Mich App at 353. But regardless of the standard of review that we employ, we find
no error in the trial court’s determination not to give these instructions. With regard to the
requested instruction on circumstantial evidence, the trial court correctly observed that this
instruction was deleted from the current version of the Model Criminal Jury Instructions, MJI 4.3
(formerly CJI2d 4.3; CJI 4:2:01-4:2:02). Further, even in cases relying on circumstantial
evidence, the prosecution is not required to negate every reasonable theory consistent with
defendant’s innocence. See People v Hardiman, 466 Mich 417, 423-424; 646 NW2d 158
(2002). The trial court did not err by determining that the law did not support the giving of this
instruction. See Gillis, 474 Mich at 113.

        Similarly, the admissibility of evidence is, as an issue of law, a matter for the court, not
the jury. See People v Vega, 413 Mich 773, 780; 321 NW2d 675 (1982). There was no reason
for the trial court to instruct the jury on the standards for the admission of evidence under
MRE 404(b), other than to invite the jury to consider whether the evidence was admitted in error.
Such a determination was not within the jury’s province, and the trial court did not err by failing
to give such an instruction. See Gillis, 474 Mich at 113.

        Regarding defendant’s request that the jury be instructed that the crime of breaking and
entering was complete upon entry, the jury was in fact instructed on the elements of breaking and
entering, and was instructed that an entry is completed when any part of an offender’s body
enters a building, provided that the person “intended to commit larceny.” McGhee, 268 Mich
App at 606; see also People v Davenport, 122 Mich App 159, 165l; 332 NW2d 443 (1982)
(noting that “[t]he crime of breaking and entering is complete when the entrance is gained.”).
This instruction fully and fairly described the elements of the charged offenses. Moreover,
whether the breaking and entering was complete before the larceny actually occurred does not, as
defendant suggests, render evidence of what occurred thereafter immaterial or render the
evidence against him insufficient. Although defendant argues that the jury was not specifically
instructed that it could not find him guilty of breaking and entering merely if it found him to be
linked to stolen property (i.e., the red Powerade® bottle),5 the jury was properly instructed on the
necessary findings it needed to make to find defendant guilty of the offense charged.

        Lastly, there is no indication that the jury reached a compromise verdict, and the jury was
instructed that no juror was to give up his or her honest opinion “just for the sake of reaching a
verdict” and that “your vote must be your own, and you must vote honestly and in good
conscience.” The jury was polled after the verdict and each juror voiced agreement with the
finding of guilt. Defendant does not identify how a different instruction would have more
adequately protected him from the risk of a compromise verdict, and we conclude that no error


5
  Defendant did not argue at trial that he merely possessed stolen property from the Dollar
General; rather, he implied that a third party had placed the Powerade® bottle at the scene and
that the Powerade® bottle could not conclusively be proven to have been taken from the Dollar
General.


                                                -5-
occurred. Martin, 271 Mich App at 353; Carines, 460 Mich at 764-765. Because we find that
no error occurred, we find no merit to defendant’s argument in his Standard 4 brief that the trial
court’s denial of requested jury instructions amounted to judicial bias. See In re Contempt of
Henry, 282 Mich App 656, 680; 765 NW2d 44 (2009) (noting that adverse rulings, even if
erroneous, are not in and of themselves a valid basis for demonstrating judicial bias).

                                 III. OTHER-ACTS EVIDENCE

        Defendant also argues, in both his main appellate brief and his Standard 4 brief, that the
trial court erred by allowing the admission of other-acts evidence related to the break-ins in
Indiana and St. Joseph County, both because the evidence was not relevant to a proper purpose
under MRE 404(b), and because regardless of relevance the evidence carried the risk of unfair
prejudice under MRE 403. We disagree. We review for an abuse of discretion the trial court’s
admission of other-acts evidence. People v Waclawski, 286 Mich App 634, 670; 780 NW2d 321
(2009). A trial court abuses its discretion when it chooses an outcome that is outside the range of
reasonable and principled outcomes. People v Orr, 275 Mich App 587, 588-589; 739 NW2d 385
(2007).

        MRE 404(b) governs the admission of evidence of other acts, and provides in relevant
part:

        (1) 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,
        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.

To be admissible under MRE 404(b), other-acts evidence: (1) must be offered for a proper
purpose, (2) must be relevant, and (3) must not have a probative value substantially outweighed
by its potential for unfair prejudice. People v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004);
People v Steele, 283 Mich App 472, 479; 769 NW2d 256 (2009). A proper purpose is one other
than establishing the defendant’s propensity to commit the charged offenses. People v
VanderVliet, 444 Mich 52, 74; 508 NW2d 114 (1993), mod 445 Mich 1205 (1994). Evidence of
other acts is relevant to show that the charged offenses occurred if they are sufficiently similar to
support an inference that they were manifestations of a common plan, scheme, or system.
People v Dobek, 274 Mich App 58, 90; 732 NW2d 546 (2007). However, more than a general
similarity is required, although the other acts and the charged offenses need not be part of a
single continuing conception or plot. Id. (citations omitted). The evidence should possess
“sufficient common features” to “support the inference that the defendant employed that plan in
committing the charged offense.” People v Sabin (After Remand), 463 Mich 43, 65-66; 614
NW2d 888 (2000) (citation omitted).

        Here, defendant argues that the other acts lacked sufficient similarity to the charged
offenses to show defendant’s identity as the perpetrator of the charged offenses. Defendant notes
that our Supreme Court has stated that where
                                                -6-
       the only conceivable justification for admission of such similar-acts evidence is to
       prove the identity of the perpetrator, the link is forged with sufficient strength to
       justify admission of evidence of the separate offense only where the
       circumstances and manner in which the two crimes were committed are “[s]o
       nearly identical in method as to earmark [the charged offense] as the handiwork
       of the accused. Here much more is demanded than the mere repeated commission
       of crimes of the same class, such as repeated burglaries or thefts. The
       [commonality of circumstances] must be so unusual and distinctive as to be like a
       signature. McCormick, Evidence (2d ed), § 190, p 449. [People v Golochowicz,
       413 Mich 298, 309; 319 NW2d 518 (1982).]

Defendant further argues that the trial court erred by not applying the “higher threshold” found in
Golochowicz to the other-acts evidence in this case, and by instead applying a lower threshold
for proof of a common scheme, plan, or system. We disagree.

        As the trial court noted, the other-acts evidence in this case was not offered solely for the
purpose of proving defendant’s identity through a signature modus operandi, as was the case in
Golochowicz. Rather, the evidence was offered to show a common scheme or plan, and
therefore did not need to be “unusual or distinctive” but only needed to “support the inference
that the defendant employed that plan in committing the charged offense.” Sabin (After
Remand), 463 Mich at 65-66, (citation omitted). The other-acts evidence admitted at trial shared
“sufficient common features” to meet this requirement. Id. at 66. For example, the Indiana
burglary of the Dollar General was nearly identical to the current offense—the breaking and
entering was accomplished by cutting through the exterior wall with power tools, the phone lines
and cameras were disabled, and the safe accessed by means of a drill. And the Pine View Golf
Club break-in, while possessing some dissimilar elements, such as the location being a golf
course rather than a retail establishment, also possessed many common features—tools such as
hammers and pry bars were used, the phone line was cut, elements of the alarm system were
disabled, and cash registers were broken into. Additionally and most notably, the intruder in the
Pine View Golf Club break-in was also videotaped drinking from what appeared to be a
Powerade® bottle, and a Powerade® bottle containing defendant’s DNA was also found near
other physical evidence of the crime a few hundred yards away from the burglarized location.
Under these circumstances, the trial court did not abuse its discretion by admitting the other-acts
evidence as being sufficiently similar to the charged offenses in the instant case.6 Sabin, 463
Mich at 66.

       We also reject defendant’s argument that evidence of the Indiana burglary should not
have been admitted because he was only an aider and abettor, not the principal offender, in that
case. The fact remains that defendant pleaded guilty to the crime, and thus participated to some


6
  We note that allowing oneself to be videotaped drinking from a Powerade® bottle, then leaving
a Powerade® bottle containing DNA evidence near other evidence of the crime and within a few
hundred yards of a recently burgled building, strikes us as the sort “signature” evidence
contemplated by Golochowicz, 413 Mich at 309.


                                                -7-
degree, beyond his mere presence, in the conduct that formed the common scheme, plan, or
system. People v Jones, 201 Mich App 449, 544; 506 NW2d 542 (1993). Defendant’s argument
goes to the weight of the evidence, not its admissibility. Defendant was free to argue that the
other-acts evidence only demonstrated that he had aided Bilyeu by providing transportation to
and from burglary site, not that he had committed a burglary himself, and he indeed presented
testimony from Bilyeu to that effect. The trial court did not abuse its discretion by admitting the
other-acts evidence in this case. Waclawski, 286 Mich App at 670.

        Nor was the probative value of the other-acts evidence substantially outweighed by the
danger of unfair prejudice. MRE 404(b); MRE 403. All relevant evidence is prejudicial.
People v Schaw, 288 Mich App 231, 237; 791 NW2d 743 (2010). Evidence is unfairly
prejudicial when “there exists a danger that marginally probative evidence will be given undue or
preemptive weight by the jury.” Id. (quotation marks and citations omitted). That danger was
not present here. Relevant evidence is any fact that is of consequence to the determination of the
action. MRE 401, 402; see also People v Fisher, 449 Mich 441, 452; 537 NW2d 577 (1995)
(citation omitted). Here, the other-acts evidence was highly relevant to the issue of defendant’s
identity and the existence of a common scheme or plan in committing the charged offenses.
Further, the evidence was not of the sort that would prejudice defendant by “injecting
considerations extraneous to the merits of the lawsuit, e.g., the jury’s bias, sympathy, anger, or
shock.” Fisher, 449 Mich at 452. Balancing the highly probative nature of the evidence with the
low risk that the jury would be inflamed by it, we conclude that the trial court did not abuse its
discretion by declining to exclude the evidence as unfairly prejudicial. Waclawski, 286 Mich
App at 670. This conclusion is strengthened by the fact that the trial court instructed the jury no
less than five times, over the course of a four-day trial, on the proper uses of other-acts evidence.
Jurors are presumed to follow their instructions. People v Graves, 458 Mich 476, 486; 581
NW2d 229 (1998).7

                             IV. ADMISSION OF DNA EVIDENCE

       Defendant also argues that the trial court erred by allowing, after a Daubert hearing, the
admission of expert testimony regarding the use of the STRmix™ DNA comparison software to
compare defendant’s DNA to the DNA found on the Powerade® bottle. We disagree. We
review for an abuse of discretion a trial court’s decision to admit expert testimony. See Edry v
Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010). Even if admitted in error, the admission
of evidence is not cause for reversal unless it affirmatively appears that it is more probable than


7
  Much of defendant’s argument in his Standard 4 brief is based on specific facts of the Indiana
case that were not admitted into evidence. We decline to consider anything that was not made a
part of the record below. See Kent Co Aeronautics Bd v Dep’t of State Police, 239 Mich App
563, 579-580; 609 NW2d 593 (2000) (noting that this Court’s review is limited to the record
developed by the trial court, and that a party is not permitted to enlarge the record on appeal by
asserting facts not presented in the trial court). Further, because we find no error in the
admission of this evidence, we find no merit to defendant’s claims of judicial and prosecutorial
misconduct related to its admission.


                                                -8-
not that the error was outcome determinative. People v Knapp, 244 Mich App 361, 378; 624
NW2d 227 (2001).

       At the beginning of trial, defendant stated:

               First of all, I’m gonna tell you that I’m not particularly disputing that it’s
       my DNA on the bottle. What I’m disputing is what that means and how that got
       there, ‘cause I know I didn’t put it there. And I - - I mean, I think the experts are
       gonna testify to you that they - - what they can’t tell from DNA is when the DNA
       was placed on an object.

        As stated, defendant presented the testimony of his own DNA expert, Dr. Reich, who
stated several times that the fact that defendant’s DNA matched the major DNA donor on the
Powerade® bottle was “not in dispute.” And during his closing argument, defendant repeatedly
reiterated this point:

       I openly acknowledge that DNA experts would testify that my DNA was found on
       the Powerade bottle presented as evidence in this case, but I strongly disagreed
       about the significance of it.

                                              * * *

              The single piece of ambiguous circumstantial evidence that the prosecutor
       claimed links me to these crimes is my DNA being found on a bottle of red
       Powerade . . . .

                                              * * *

       Fortunately under the law I’m not required to explain how my DNA got on a
       bottle found at this location. I believe that someone put the bottle there with my
       DNA on it to cause me problems . . . .

                                              * * *

       Even if you are convinced beyond a reasonable doubt that my DNA on the
       Powerade links me to the crime in some way . . . .

        Therefore, despite defendant’s claims on appeal, it is difficult to see how the admission of
testimony from the prosecution’s expert witness regarding a comparison of defendant’s DNA
with that found on the Powerade® bottle was outcome determinative. Defendant never denied
that it was his DNA on the bottle, and defendant’s own expert witness testified that it was
defendant’s DNA. Reversible error must be that of the trial court, not one to which the appellant
contributed by plan or negligence. People v Witherspoon (After Remand), 257 Mich App 329,
333; 670 NW2d 434 (2003). Defendant has waived this claim of error. People v Green, 228
Mich App 684, 691; 580 NW2d 444 (1998).

      If, for the sake of argument, we were to find that defendant’s conduct during the trial was
compelled by the trial court’s holding, after the Daubert hearing, that expert testimony regarding

                                                -9-
STRmix™ would be admitted, we would still reject defendant’s challenge. If a trial court
determines that recognized scientific, technical, or other specialized knowledge will assist the
jury in understanding evidence or determining a fact in issue, a witness qualified as an expert
may testify to the knowledge by opinion or otherwise, if such testimony is based on sufficient
facts or data, is the product of reliable principles and methods, and the witness has applied the
principles and methods reliably to the facts of the case. MRE 702; Dobek, 274 Mich App at 93-
94;People v Peterson, 450 Mich 349, 362; 537 NW2d 857 (1995); see also Daubert v Merrell
Dow Pharm, Inc., 509 US 579, 593-595; 113 S Ct 2786; 125 L Ed 2d 469 (1993); Gilbert v
DaimlerChrysler Corp, 470 Mich 749, 779; 685 NW2d 391 (2004).

         Although defendant argues that STRmix™ is not reliable because it suffers from
“programming code failures,” Dr. John Buckleton, one of the creators of STRmix™, testified at
the hearing that programming faults had never caused a false inclusion. In fact, Dr. Buckleton
knew of only two errors causing false exclusions, and both occurred during specific testing
exercises rather than when used in an actual case. Further, Dr. Buckleton testified that
STRmix™ was used in 17 laboratories in the United States, including the laboratories of the FBI
and the United States Army. Sixty-five additional laboratories had purchased the software and
were currently in the validation process for transitioning to its use. Dr. Buckleton also noted that
STRmix™ had been favorably reviewed in 19 peer-reviewed scientific journals. Further,
DeLeeuw testified that the STRmix™ software matched the DNA found on the Powerade®
bottle to the DNA found on the Powerade® bottle in St. Joseph County, which was itself
matched to defendant’s DNA using older, long-established software provided by the FBI.8 In
light of this testimony, and given this Court’s recent rejection of a similar challenge to the use of
STRmix™ software, see People v Muhammad, ___ Mich App ___, ___; ___ NW2d ___ (2018)
(Docket No. 338300), the trial court did not err by admitting testimony concerning the use of
STRmix™ software. See Edry, 486 Mich at 639; Dobek, 274 Mich App at 93-94. And, as
stated above, we would not reverse in any event even if the testimony had been admitted in error,
in light of defendant’s contribution to that error.

        In his Standard 4 brief, defendant additionally alleges “judicial misconduct” related to the
admission of DNA expert testimony, claiming that the prosecution used a “new, untested in the
courts, DNA processing method (STRMix)” and that “Judge Wiley did not want the county to
pay for any challenge (Daubert hearing, trial testimony) to said technology by a defense DNA
expert.” Defendant further alleges that Judge Wiley, the prosecutor, and the former public
defender(s) assigned to his case colluded in a scheme to not request a DNA expert. The record
contains no support for defendant’s allegations, and indeed he was ultimately provided with
funds for a DNA expert, either from the trial court or the public defender’s office. We find no
evidence of judicial bias, see Contempt of Henry, 282 Mich App at 680, or prosecutorial
misconduct, Dobek, 274 Mich App at 70, related to the admission of DNA expert testimony.


8
  We note that both tests used the polymerase chain reaction (PCR) testing method to obtain
DNA profiles. The use of PCR testing is “firmly accept[ed]” by Michigan courts. See People v
Coy, 258 Mich App 1, 11; 669 NW2d 831 (2003). Defendant’s challenge is only to the statistical
interpretation and comparison of those profiles.


                                                -10-
                            V. SUFFICIENCY OF THE EVIDENCE

       Defendant also argues in his main and Standard 4 briefs that the evidence against him at
trial was insufficient to allow a rational jury to convict him of the charged offenses. We
disagree. We review de novo a defendant’s challenge to the sufficiency of the evidence. People
v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011).

        In reviewing the sufficiency of the evidence, this Court must view the evidence in the
light most favorable to the prosecution and determine whether a rational trier of fact could find
that the essential elements of the crime were proven beyond a reasonable doubt. People v Reese,
491 Mich 127, 139; 815 NW2d 85 (2012). However, we do not interfere with the factfinder’s
role of determining the weight of evidence or the credibility of witnesses. People v Wolfe, 440
Mich 508, 514; 489 NW2d 748, amended 441 Mich 1201 (1992). It is for the trier of fact rather
than this Court to determine what inferences can be fairly drawn from the evidence and to
determine the weight to be accorded to the inferences. Hardiman, 466 Mich at 428. The
prosecution need not negate every reasonable theory of innocence, but must only prove its own
theory beyond a reasonable doubt in the face of whatever contradictory evidence the defendant
provides. Id. at 423-424. Circumstantial evidence and the reasonable inferences that arise from
such evidence can constitute satisfactory proof of the elements of a crime. Carines, 460 Mich at
757. We resolve all conflicts in the evidence in favor of the prosecution. People v Kanaan, 278
Mich App 594, 619; 751 NW2d 57 (2008).

       Defendant was convicted of safe-breaking, MCL 750.531, and breaking and entering a
building with the intent to commit larceny, MCL 750.110. The elements of safe-breaking are (1)
the defendant broke into a safe; and (2) at the time of the breaking, the defendant intended to
commit a larceny. MCL 750.531. The elements of breaking and entering a building with intent
to commit larceny are that (1) the defendant broke into a building, (2) the defendant entered the
building, and (3) at the time of the breaking and entering, the defendant intended to commit a
larceny therein. MCL 750.110; People v Toole, 227 Mich App 656, 658; 576 NW2d 441 (1998).

        Defendant does not dispute that the elements of these offenses were satisfied by the
events that occurred at the Dollar General on August 23, 2015. He argues, however, that the
evidence was insufficient to allow the jury to conclude that he was the one who committed those
offenses. We disagree. Again, circumstantial evidence and reasonable inferences arising from
that evidence may be sufficient to prove the elements of a crime. Carines, 460 Mich at 757.
Here, the jury was presented with evidence that a masked individual was observed by
surveillance cameras inside the Dollar General long after it had closed for the night, and that the
individual had taken a bottle of red Powerade®. The following morning, the Dollar General was
found burglarized with its safe broken. A bank deposit bag had been stolen from that safe, and
was recovered later that morning near a red Powerade® bottle. Defendant’s DNA was found on
the bottle. The method of breaking into the Dollar General and the safe closely matched the
method used in the burglary of another Dollar General in Indiana, a crime that defendant was
convicted of aiding and abetting. And the DNA from the Powerade® bottle matched the DNA
found on another Powerade® bottle found near the scene of another breaking and entering in St.
Joseph County earlier that year; the Powerade® bottle in that case was also left near physical
evidence related to the crime. The jury could make the reasonable inference that defendant was
the individual appearing in the video, and that the individual had committed the charged

                                               -11-
offenses. Although defendant argues that he cannot be conclusively identified in the video, and
notes the lack of other types of evidence, such as eyewitness testimony, fingerprints or DNA
found within the Dollar General, or a confession, the evidence presented, viewed in the light
most favorable to the prosecution, was sufficient. Reese, 491 Mich at 130; see also Carines, 460
Mich at 757. Defendant’s arguments to the contrary chiefly rely on the desired exclusion of the
other-acts evidence and DNA evidence presented at trial; as discussed, we find no error in the
admission of that evidence.

                                     VI. JUDICIAL BIAS

        Defendant also argues in his main brief that Judge Wiley demonstrated judicial bias
against him, and in his Standard 4 brief that both Judge Wiley and Judge Schrock demonstrated
such bias. With regard to Judge Wiley’s alleged bias, defendant points to statements made
during various pretrial hearings indicating that Judge Wiley was, as defendant puts it,
“exasperated” with defendant’s conduct. Whatever Judge Wiley’s feelings towards defendant or
his conduct, we find no error in the pretrial decisions with which defendant takes issue, as
discussed earlier. We therefore find no error warranting reversal with respect to Judge Wiley’s
conduct. See Contempt of Henry, 282 Mich App at 680-681 (noting that a trial court’s
frustration with the appellant did not rise to the level of actual bias or prejudice).9

        Regarding Judge Schrock, defendant provides several examples of alleged misconduct by
Judge Schrock. These chiefly consist of adverse rulings, which, as stated, are insufficient to
support a claim of bias. See id. at 680. The remaining issues concern Judge Schrock’s failure to
sanction the prosecutor for alleged prosecutorial misconduct. As discussed below, we find no
such misconduct. We therefore conclude that there is no basis for sustaining a claim of judicial
bias. Id.

                          VII. PROSECUTORIAL MISCONDUCT

       In his Standard 4 brief, defendant makes numerous allegations of prosecutorial
misconduct, including many acts that defendant deems “gross malfeasance,” “malicious
prosecution,” and “abuse of power.” These alleged acts fall into a few general categories: (1)
alleged discovery violations, (2) alleged false statements and omissions related to the
introduction of the other-acts evidence, and (3) alleged improper arguments from the evidence
and references to facts not in evidence. We disagree that any misconduct occurred.

       “Given that a prosecutor’s role and responsibility is to seek justice and not merely
convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” Dobek, 274 Mich App at 63. “Issues of prosecutorial misconduct are decided
case by case, and this Court must examine the entire record and evaluate a prosecutor’s remarks
in context.” Id. at 64. However, our review of unpreserved claims of prosecutorial misconduct



9
  Judge Wiley did not preside over defendant’s trial and therefore had no occasion to influence
the jury.


                                             -12-
is limited to plain error affecting defendant’s substantial rights. People v Brown, 279 Mich App
116, 134; 755 NW2d 664 (2008).

        Regarding the alleged discovery violations, “[d]efendants have a due process right to
obtain evidence in the possession of the prosecutor if it is favorable to the accused and material
to guilt or punishment.” People v Stanaway, 446 Mich 643, 666; 521 NW2d 557 (1994).
However, criminal defendants do not have a general constitutional right to discovery. People v
Elston, 462 Mich 751, 765; 614 NW2d 595 (2000). Accordingly, the erroneous admission of
evidence in violation of the mandatory disclosure rule is nonconstitutional error where that
evidence is not “favorable to the accused.” Id. at 765-766 n 6. The majority of defendant’s
claimed discovery violations involve the prosecution’s alleged tardy provision of documentary
evidence that was ultimately provided to defendant and was not exculpatory. Further, defendant
did not move to compel discovery regarding any of these documents, which defendant admits
were ultimately provided to him, in most cases with ample time before trial. And although
defendant contends that he was “surprised” by the prosecution’s revelation that a videotaped
recording of his police interview existed, he neglects to mention that the trial court found that a
discovery violation had occurred regarding that recording, and ruled that the video was
inadmissible at trial. In sum, defendant has failed to show that he was prejudiced by any delays
in the provision of evidence, or that he was denied any exculpatory evidence, and therefore that
any prosecutorial misconduct regarding discovery occurred. Dobek, 274 Mich App at 63;
Brown, 279 Mich App at 134.

         Regarding the prosecution’s alleged false statements and omissions concerning the other-
acts evidence, defendant in essence takes issue with the prosecution’s argument that the other
two break-ins were similar to the charged offenses, and with the prosecution’s failure to point out
differences between the prior break-ins and the currently-charged conduct. But the prosecution
was free to “argue the evidence and all reasonable inferences from the evidence as it relates to
[its] theory of the case.” People v Unger, 278 Mich App 210, 236; 749 NW2d 272 (2008). It
was not required to argue defendant’s case for him. And to the extent that defendant argues that
the prosecution sought to imply that he was the principal, not an aider and abettor, in the Indiana
burglary, such a claim is not supported by the record. The prosecution was permitted to argue
from the evidence, and was not required to confine its argument to “the blandest possible terms.”
Dobek, 274 Mich at 66. We discern nothing in the prosecution’s argument concerning the other-
acts evidence that rises to the level of prosecutorial misconduct. Further, even if the
prosecution’s statements did leave the jury with the impression that defendant, not Bilyeu, was
the principal in the Indiana burglary, Bilyeu testified clearly and unequivocally that he
committed the offense for which he was convicted, burglary of the Dollar General, and that
defendant’s involvement was that of an aider and abettor. We conclude that no error warranting
reversal occurred. Dobek, 274 Mich App at 63.

        Finally, regarding the prosecution’s alleged false statements, such as claiming that
“ambiguous circumstantial evidence of a Powerade at Coloma and Pine View Golf conclusively
established [defendant] committed both of said crimes” and invoking the “doctrine of chances,”
we conclude that these statements represented good-faith arguments from the evidence and
reasonable inferences from the evidence. Unger, 278 Mich App at 236. And although the
prosecution may have occasionally referred to defendant’s Indiana conviction as being for
“burglary” rather than the crime of “aiding in burglary,” a copy of his Indiana judgment of
                                               -13-
conviction was entered into evidence and, again, Bilyeu testified that defendant had simply aided
him in the burglary by driving him to and from the scene.

      In sum, we find no merit to defendant’s argument that the prosecution committed
misconduct and denied him a fair trial. Dobek, 274 Mich App at 63.

    VIII. DENIAL OF EFFECTIVE COUNSEL AND ACCESS TO LEGAL RESOURCES

        Lastly, defendant in his Standard 4 brief argues that “the criminal justice system in
Berrien County is broken” and states that his court-appointed counsel was so inadequate that he
was forced to represent himself. Additionally, he argues that he was denied access to adequate
legal resources while in jail. We disagree.

        The effective assistance of counsel is presumed and defendant bears a heavy burden of
proving otherwise. People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994); People v
Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995). To establish ineffective assistance of
counsel, defendant first must show that counsel’s performance was below an objective standard
of reasonableness. In doing so, defendant must overcome the strong presumption that counsel’s
assistance constituted sound trial strategy. Second, defendant must show that, but for counsel’s
deficient performance, it is reasonably probable that the result of the proceeding would have
been different. People v Armstrong, 490 Mich 281, 289-290; 806 NW2d 676 (2011).

         A defendant has a constitutional and statutory right to represent himself. See Const 1963,
art. 1, § 13; MCL 763.1. An indigent defendant is guaranteed the right to counsel; however, “he
is not entitled to have the attorney of his choice appointed simply by requesting that the attorney
originally appointed be replaced. Appointment of a substitute counsel is warranted only upon a
showing of good cause and where substitution will not unreasonably disrupt the judicial
process.” People v Mack, 190 Mich App 7, 14; 475 NW2d 830 (1991). Here, defendant was
assigned, and ultimately rejected, three different court-appointed attorneys before deciding to
represent himself; Attorney Richard Sammis, his third appointed attorney, remained available as
standby counsel.

       Defendant argues that his attorneys were ineffective in numerous ways, but focuses this
Court’s attention particularly on three: he alleges that his attorneys were ineffective (1) for not
engaging a DNA expert or requesting a Daubert hearing, (2) for failing to request discovery
concerning the other-acts evidence admitted at trial, and (3) for failing to call Katrina Rolland,
the employee who closed the Dollar General the previous night, as a witness or to introduce
medical records concerning medical procedures he underwent in 2015.

        With regard to a DNA expert, defendant himself admits in his brief that his second
attorney, at least, did request funds from the Court to engage a DNA expert, and that Sammis did
request a Daubert hearing and funds to pay for an expert. At the Daubert hearing, Sammis
informed the trial court that he would be having Dr. Reich testify during the trial. Dr. Reich did
ultimately testify at trial. Therefore, even if we assume for the sake of argument that any of
defendant’s counsel was ineffective, defendant has not carried his burden of showing prejudice.
Armstrong, 490 Mich at 289-290. To the extent that defendant argues that engaging Dr. Reich to
testify at the Daubert hearing itself would have prompted a different result, we note that Dr.

                                               -14-
Reich’s stated issues with STRmix™, such as programming faults and the availability of the
source code and algorithms used by the program, were fully explored at the hearing. Defendant
cannot demonstrate prejudice. Id.

        As for defendant’s remaining claims, the problem that defendant has is that he ultimately
chose to (and did) represent himself at trial. Defendant has not demonstrated, for example, that
the conduct of his attorneys prevented him from calling Rolland as a witness, or from raising
issues related to medical conditions in 2015, or from raising issues of alleged prosecutorial
misconduct or judicial bias. And as far as the other-acts evidence is concerned, the record shows
that Sammis did argue against the admission of other-acts evidence, argued to limit the scope of
the evidence introduced, and requested a limiting instruction. Defendant has failed to
demonstrate either deficient performance or prejudice by the pretrial conduct of his attorneys,
especially when he ultimately represented himself. Id.

        With regard to defendant’s limited resources while in jail, the record reflects numerous
efforts by the trial court and the prosecution to work within those limitations and to provide
defendant with what he needed. Further, it could not have been a surprise to defendant that his
ability to correspond with the outside world would be hampered by his incarceration.10
Ultimately, defendant went into self-representation with his eyes open and cannot now use his
decision as a basis for reversing his convictions. As our Supreme Court has stated:

       To permit a defendant in a criminal case to indulge in the charade of insisting on a
       right to act as his own attorney and then on appeal to use the very permission to
       defend himself in pro per as a basis for reversal of conviction and a grant of
       another trial is to make a mockery of the criminal justice system and the
       constitutional rights sought to be protected. [People v Williams, 470 Mich 634,
       645; 683 NW2d 597 (2004) (quotation marks and citations omitted).]

       Affirmed.



                                                            /s/ Mark T. Boonstra
                                                            /s/ Peter D. O'Connell
                                                            /s/ Jonathan Tukel




10
  If defendant believes that the Michigan Department of Corrections, which is not a party to this
case, violated his constitutional rights during his incarceration, his remedy lies elsewhere.


                                              -15-
