            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 12, 2020
               Plaintiff-Appellee,

v                                                                    No. 345472
                                                                     Muskegon Circuit Court
SHANTRELL GARDNER,                                                   LC No. 17-000367-FC

               Defendant-Appellant.


Before: MURRAY, C.J., and METER and K. F. KELLY, JJ.

PER CURIAM.

       Defendant appeals as of right his jury-trial convictions of three counts of armed robbery,
MCL 750.529; one count of possession of a firearm during the commission of a felony (felony
firearm), MCL 750.227b; and one count of felon in possession of a firearm (felon in possession),
MCL 750.224f. We affirm.

                                       I. BACKGROUND

        Defendant’s convictions arise from a robbery at a Shell gas station. Two witnesses testified
that they saw a black or gray minivan parked outside the station on the night in question. Three
employees of the station testified that an African-American man entered the gas station wearing a
gray hooded sweatshirt and blue jeans and walked around the station’s convenience store.
According to the witnesses, the man then walked behind the counter and held a black gun to the
cashier while demanding money. At some point in the encounter, a second man walked into the
store to assist the robbery. The men forced the three attendants into the security room and the man
with the gun took the surveillance system and two attendant’s cellular phones before leaving.

        One attendant identified defendant in a pretrial lineup; all three attendants identified
defendant at a preliminary examination and at trial, though some witnesses stated that they had
difficulty seeing defendant during the preliminary exam because he was seated behind a pillar in
the courtroom. Before trial, the prosecution moved to admit evidence under MRE 404(b) of three
other gas-station robberies defendant allegedly committed. The trial court admitted two of the
robberies into evidence. Regarding the first robbery, the prosecution presented evidence that an
African-American individual of similar build to defendant robbed a Marathon gas station while
carrying a gun and wearing a gray hoodie pulled up to cover his face and blue jeans. A video of


                                                -1-
the incident provided before trial showed a dark-colored van pull up to a gas pump before the
robbery and sit idle for a few minutes. The van then drove away, but returned a few minutes later,
sitting in the same position. Concerning the second robbery, the prosecution presented evidence
that a similarly-built individual wearing a gray sweatshirt and blue jeans entered a BP gas station
and walked about the aisles. The individual then walked behind the counter, pulled a gun on the
attendant, and took money from the register. The individual then took the attendant to the
surveillance room to take the surveillance footage, was unsuccessful in getting the surveillance
tape to eject, and left with the attendant’s cellular phone. The attendant stated that she saw the
man leave in a brown or gray van. The BP attendant identified defendant as the robber, although
no Marathon employee could make such an identification. The prosecution presented evidence at
indicating that the van in question belonged to defendant’s wife.

        At the close of the trial, the jury found defendant guilty of the aforementioned crimes. The
trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to serve prison
terms of 2 years for the felony-firearm conviction and 40 to 70 years for the armed-robbery and
felon-in-possession convictions. This appeal followed.

                                          II. ANALYSIS

                               A. IDENTIFICATION EVIDENCE

        Defendant first argues that the trial court erred when it denied his motion to suppress the
Shell attendants’ identifications of him during the preliminary examination because the
identifications were unduly suggestive. “On review, the trial court’s decision to admit
identification evidence will not be reversed unless it is clearly erroneous.” People v Kurylczyk,
443 Mich 289, 304; 505 NW2d 528 (1993).

         Defendant argues that the trial court should have suppressed the preliminary-examination
identifications of him by the three Shell-station attendants because defendant was “paraded in front
of them wearing jail clothing and shackles while they were seated outside the courtroom waiting
to testify.”1 Due process protects defendants when law-enforcement officers employ unnecessarily
suggestive procedures to procure an identification. See People v Thomas, 501 Mich 913, 913; 902
NW2d 885 (2017). When law enforcement utilizes an unnecessarily suggestive identification
procedure, due process requires the suppression of all subsequent identifications incurably tainted
by the suggestive identification. See People v Colon, 233 Mich App 295, 303; 591 NW2d 692
(1998).

        Yet, as the federal Supreme Court recognized in Perry v New Hampshire, 565 US 228,
245-248; 132 S Ct 716; 181 L Ed 2d 694 (2012), when the identification challenged was not
arranged by law enforcement—but rather occurred during judicial proceedings—the due-process
clause is not implicated.




1
 It appears that one of the three witnesses was actually sitting at the witness’s stand at this time,
while the other two witnesses were seated outside the courtroom.

                                                -2-
               Perry makes clear that, for those defendants who are identified under
       suggestive circumstances not arranged by police, the requirements of due process
       are satisfied in the ordinary protections of trial. These protections include the right
       to confront witnesses, the right to effective assistance of an attorney who can
       expose the flaws in identification testimony on cross-examination, the right to
       eyewitness-specific jury instructions as adopted by the jurisdiction, and the right to
       be presumed innocent until found guilty beyond a reasonable doubt by a jury of the
       defendant’s peers. [US v Whatley, 719 F3d 1206, 1215-1216 (CA 11, 2013)
       (internal citations omitted).]

Defendant does not challenge the pretrial line-up employed for one of the Shell witnesses.
Accordingly, because defendant’s due-process challenge relates solely to the in-court
identifications provided by the witnesses, he is not entitled to a new trial.

                                 B. PROSECUTORIAL ERROR

        Next, defendant argues that the prosecutor committed error requiring reversal by
commenting during the trial and closing argument that defendant intentionally hid behind a pillar
in the courtroom during the preliminary examination to mask his identity from the witnesses.
Prosecutorial error issues are decided on a case-by-case basis. People v Grayer, 252 Mich App
349, 357; 651 NW2d 818 (2002). “This Court reviews the prosecutor’s remarks in context to
determine whether the defendant was denied a fair and impartial trial.” Id.

         During the prosecutor’s direct examination of one of the Shell-station attendants at trial,
the prosecutor referenced the attendant’s difficulty in viewing the defendant at the preliminary
examination due to the presence of a pillar in the courtroom. The prosecutor also called a detective
to elicit testimony about the preliminary examination and the pillar that blocked the witnesses’
view of defendant. The defense objected to a line of questioning involving defendant’s position
in relation to the pillar and the following exchange occurred:

                The Court: At the time, every one of them testified or they testified, no,
       they couldn’t see him, and they testified it was because of a pillar. So whether he’s
       sitting back or forward, I don’t know what—

               The Prosecution: Well—

              The Court: It’s not relevant. What’s relevant is: Did they identify him.
       And they couldn’t at first because of the pillar, so.

               The Prosecution: The—

               The Court: I would sustain, and that’s—it’s not relevant.

               The Prosecution: Well, can I—If he’s intentionally back so he can’t see
       him—

             The Court: Can you read his mind to see that he was intentionally sitting back?
       You cannot, so.

                                                -3-
The trial court ultimately sustained defense counsel’s objection to the line of questioning. Then,
during closing argument, the prosecutor made the follow remarks:

              The Prosecutor: Now, I put forth to you, Ladies and Gentlemen, if he so
       innocent, why is he staying behind the pillar? Because it came up on the first
       witness.

               Defense Counsel: Judge, I’m going to object.

               The Court: Okay. Mr. Corbett—

               Defense Counsel: There was no testimony in evidence indicating that he
       had intentionally stayed behind the pillar.

               The Prosecutor: They each—

               Defense Counsel: And you can’t even make an argument based on that.

               The Court: Go ahead.

               The Prosecutor: They each testified their view was obstructed by the pillar.

              Defense Counsel: And I’m—Nobody testified that he put the pillar in the
       courtroom.

               The Prosecutor: I didn’t say that.

              The Court: And it’s stated that the pillar was in between the two tables.
       There was no indication that he leaned forward, leaned back. You cannot argue
       that he—or even insinuate that he hid by hiding behind that pillar.

               The Prosecutor: He’s—

               The Court: So—

               The Prosecutor: He sat back behind the pillar is what my comment was.

               The Court: Sustained. Sustained.

       We agree with defendant that the prosecutor’s questioning and statements were improper,
given that the prosecutor did not properly present any evidence which would establish that
defendant intentionally hid behind the pillar at the preliminary exam. Prosecutors are “free to
argue the evidence and reasonable inferences from the evidence as they relate to their theory of
the case,” People v Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009), but they may not argue
evidence that has not been properly admitted. Nonetheless, to warrant relief, the prosecutor’s error
must have “so infected the trial with unfairness as to make the conviction a deprivation of liberty
without due process of law.” People v Blackmon, 280 Mich App 253, 269; 761 NW2d 172 (2008).
Here, we do not believe that this standard has been met. The trial court shut down the prosecutor’s
questioning and argument in no uncertain terms, indicating that there was no evidence that
                                                -4-
defendant intentionally hid behind the pillar. Then, the trial court instructed the jury that it was its
duty to judge the evidence in this case, that the lawyers’ statements were not evidence, and that it
could not consider evidence that was excluded. “Jurors are presumed to follow their instructions,
and it is presumed that instructions cure most errors.” People v Mahone, 294 Mich App 208, 212;
816 NW2d 436 (2011). Thus, on this record, we cannot conclude that the prosecutor’s improper
remarks so infected the trial with unfairness as to warrant granting defendant a new trial.

                                  C. OTHER-ACTS EVIDENCE

        Defendant also argues that the trial court abused its discretion when it admitted evidence
of the prior robberies at Marathon and BP gas stations under MRE 404(b)(1). “The decision
whether to admit evidence is within the trial court’s discretion and will not be disturbed absent an
abuse of that discretion.” People v McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003). An
abuse of discretion occurs “when the court chooses an outcome that falls outside the range of
principled outcomes.” People v Douglas, 496 Mich 557, 565; 852 NW2d 587 (2014) (internal
citation and quotation marks omitted).

       Under MRE 404(b)(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.

MRE 404(b)(1) is an inclusionary, not exclusionary, rule. People v Danto, 294 Mich App 596,
599; 822 NW2d 600 (2011). To be admissible under MRE 404(b)(1), (1) the evidence must be
offered for a proper non-character-conformity purpose (2) the evidence must be relevant, MRE
402, and (3) the evidence must not be otherwise prohibited by MRE 403. Id. (internal citation,
quotation marks, and brackets omitted). “Exclusion is required under MRE 403 when the danger
of unfair prejudice substantially outweighs the probative value of the evidence.” People v Brown,
326 Mich App 185, 192; 926 NW2d 879 (2018) (internal citation and quotation marks omitted).
When making its determination under MRE 403, the trial court may consider the following
nonexhaustive list of factors:

       (1) the dissimilarity between the other acts and the charged crime, (2) the temporal
       proximity of the other acts to the charged crime, (3) the infrequency of the other
       acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence
       supporting the occurrence of the other acts, and (6) the lack of need for evidence
       beyond the complainant’s and the defendant’s testimony. [People v Watkins, 491
       Mich 450, 487-488; 818 NW2d 296 (2012).]

       In this case, the trial court admitted evidence of the Marathon and BP robberies as evidence
of defendant’s common scheme, plan, or system of committing robberies. To admit evidence
under this theory, there “must be such a concurrence of common features that the charged acts and

                                                  -5-
the other acts are logically seen as part of a general plan, scheme, or design.” People v Steele, 283
Mich App 472, 479; 769 NW2d 256 (2009). “The evidence of the uncharged acts needs only to
support the inference that the defendant employed the common plan in committing the charged
offense.” People v Hine (After Remand), 467 Mich 242, 253; 650 NW2d 659 (2002).

        Defendant suggests that the Marathon, Shell, and BP robberies lacked sufficient similarity
to warrant admission under a common scheme theory and that the robberies contained
characteristics common in all gas station robberies. We disagree. “[D]istinctive and unusual
features are not required to establish the existence of a common design or plan.” Id. at 252-253.
Here, the evidence tended to show that an African-American man of defendant’s build arrived at
a gas station in the same dark-colored minivan, wearing a gray hooded sweatshirt and blue jeans.
The man briefly scouted the location, before coming behind the counter, pulling a dark-colored
gun on the attendant, and demanding money from the register. In the charged offense and one of
the prior acts, the man then attempted to steal the station’s surveillance footage and left with a
victim’s cellular phone. Although there were some dissimilarities between the crimes, we
conclude that there were enough similarities to admit the prior acts as evidence of defendant’s
common plan, scheme, or system of robbing gas stations.

        Defendant argues that the dissimilarities between the charged and uncharged crimes render
the prior acts unduly prejudicial. We disagree. Defendant denied committing the instant offense
and challenged the identifications of the Shell-station employees. Although no witness from the
Marathon robbery could identify defendant, a witness from the BP robbery identified defendant as
the robber. This identification and the similarity of the charged and uncharged acts in all three
robberies were highly relevant to show that defendant followed a similar plan when robbing gas
stations and was therefore highly relevant to proving defendant’s identity as the perpetrator of the
instant offense. The evidence was therefore prejudicial, but not unduly prejudicial. Accordingly,
we conclude that the trial court did not abuse its discretion in admitting evidence of the prior
robberies.2

                                             D. OV 14

        Finally, defendant argues that the trial court erred when it assessed 10 points for Offense
Variable (OV) 14. The proper interpretation and application of the sentencing guidelines are legal
questions that this Court reviews de novo. People v Morson, 471 Mich 248, 255; 685 NW2d 203
(2004). “Under the sentencing guidelines, the circuit 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). “Clear error exists when the reviewing court is left with a
definite and firm conviction that a mistake was made.” People v Lampe, 327 Mich App 104, 111;
933 NW2d 314 (2019) (internal citation and quotation marks omitted). “Whether the facts, as
found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of



2
  Because defendant has shown only one error—the prosecutor’s improper comments—and
because that error on its own does not warrant reversal of defendant’s conviction, we reject
defendant’s argument that he is entitled to a new trial due to the cumulative effect of multiple
errors. There are simply no errors to aggregate.

                                                -6-
the facts to the law, is a question of statutory interpretation which an appellate court reviews de
novo.” Hardy, 494 Mich at 438.

        OV 14 is assessed either zero points or 10 points, depending on whether the defendant was
“a leader in a multiple offender situation” when considering the “entire criminal transaction.”
MCL 777.44. A “leader” is a one who guides or directs a criminal offense. People v Rhodes (On
Remand), 305 Mich App 85, 90; 849 NW2d 417 (2014). In this case, a preponderance of the
evidence supports that defendant committed three gas-station robberies, with varying levels of
assistance. In each robbery, defendant arrived at the station in his wife’s minivan, scouted the
location, and pulled a gun on gas-station attendant. Near the end of the instant robbery, defendant
was joined by a second individual—categorized as a lookout by one witness—who helped him to
steal the surveillance footage. The trial court’s finding that defendant was the leader in the instant
crime is supported by the facts that defendant was the common element in each robbery despite
varying numbers of offenders, utilized his wife’s vehicle for the offenses, and was the principle
actor directing the actions of the Shell-station attendants. Accordingly, we are not left with a
definite and firm conviction that the trial court erred by scoring OV 14 at 10 points.

       Affirmed.



                                                              /s/ Christopher M. Murray
                                                              /s/ Patrick M. Meter
                                                              /s/ Kirsten Frank Kelly




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