                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    February 13, 2018
               Plaintiff-Appellee,

v                                                                   No. 335864
                                                                    Van Buren Circuit Court
BRENT WILLIAM BOGSETH,                                              LC No. 16-020317-FC

               Defendant-Appellant.


Before: MARKEY, P.J., and M. J. KELLY and CAMERON, JJ.

PER CURIAM.

         Defendant, Brent Bogseth, appeals by right his jury conviction of first-degree
premeditated murder of his wife, Kimberly Bogseth.1 See MCL 750.316(1)(a). The trial court
sentenced Bogseth to serve life in prison without the possibility of parole. On appeal, Bogseth
argues that there was insufficient evidence to support his conviction and that he did not receive a
fair trial. For the reasons more fully explained below, we affirm.

                            I. SUFFICIENCY OF THE EVIDENCE

                                 A. STANDARD OF REVIEW

        Bogseth first maintains that there was insufficient evidence to support his conviction of
first-degree premeditated murder. This Court reviews a challenge to the sufficiency of the
evidence by examining the “record evidence de novo in the light most favorable to the
prosecution to determine whether a rational trier of fact could have found that the essential
elements of the crime were proved beyond a reasonable doubt.” People v Roper, 286 Mich App
77, 83; 777 NW2d 483 (2009).




1
  For ease of reference, we shall refer to Kimberly Bogseth as Kim. We shall use Bogseth to
refer to Brent Bogseth alone.


                                                -1-
                                          B. ANALYSIS

        The Legislature defined first-degree murder to be, in relevant part, “[m]urder perpetrated
by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing,” or
murder “committed in the perpetration of, or attempt to perpetrate” certain enumerated offenses.
MCL 750.316(1). Thus, first-degree murder is second-degree murder with an added element:
premeditation (or the use of poison or lying in wait) or the perpetration or attempted perpetration
of an enumerated offense. People v Carter, 395 Mich 434, 437; 236 NW2d 500 (1975). When
first-degree murder is premised on deliberation and premeditation, the prosecution must prove
that the defendant acted with the intent to kill the victim and must show that he or she acted
deliberately and with premeditation. People v Dykhouse, 418 Mich 488, 495; 345 NW2d 150
(1984).

        The relevant statutory language has been codified for more than 150 years, and our
Supreme Court has long settled the relevant understanding of the elements. In People v Potter, 5
Mich 1, 7 (1858), our Supreme Court explained that this statutory language showed that first-
degree murder could not be proved with evidence of malice alone, but instead there must be
proof that the killing was willful—that is done with the design to take the life of the victim. As
for deliberation, our Supreme Court explained that a murder suddenly conceived after adequate
provocation cannot properly be called deliberate. “But whenever murder is intentionally
committed without serious provocation, and under circumstances which do not reasonably
account for such an excitement of passion as naturally deprives men of deliberation, common
experience teaches us that such an act is wanton, and its perpetrator responsible for it, as in other
cases of cold-blooded crime.” People v Scott, 6 Mich 287, 295 (1859). Whether an act was
deliberate is a matter of plain common sense in which a “jury can seldom be at a loss to
determine” because in most cases no “sane man acts without some cause for his action” and the
jury will be able to determine whether it was a “sudden heat or not.” Id.

      Finally, this Court has discussed the proper distinction between deliberation and
premeditation within the meaning of MCL 750.316:

       To premeditate is to think about beforehand; to deliberate is to measure and
       evaluate the major facets of a choice or problem. As a number of courts have
       pointed out, premeditation and deliberation characterize a thought process
       undisturbed by hot blood. While the minimum time necessary to exercise this
       process is incapable of exact determination, the interval between initial thought
       and ultimate action should be long enough to afford a reasonable man time to
       subject the nature of his response to a “second look.” [People v Morrin, 31 Mich
       App 301, 329-330; 187 NW2d 434 (1971).]

        Our Supreme Court subsequently endorsed this “second look” approach to determining
the sufficiency of the evidence for premeditation and deliberation. See People v Tilley, 405
Mich 38; 273 NW2d 471 (1979). In Tilley, our Supreme Court agreed that, although a person
who acts on sudden impulse cannot be said to have acted deliberately, the fact that there was a
short span of time to deliberate and premeditate does not preclude a conviction of first-degree
premeditated murder. Id. at 44-45. There need only be an interval between the initial thought
and ultimate action sufficient to afford a reasonable person time to subject the nature of his or

                                                -2-
her response to a second look. Id. at 45. If the defendant had such an opportunity, a reasonable
jury could find that the defendant acted with deliberation and premeditation. Id. at 45-46.

        In sum, a murder is committed willfully if the perpetrator intended to kill the victim,
Potter, 5 Mich at 7, it is deliberate if done without adequate provocation—that is to say while
undisturbed by hot blood, Scott, 6 Mich at 295; Morrin, 31 Mich App at 329-330, and it is
premeditated if the perpetrator had the opportunity to consider his or her actions for some length
of time before completing the murder, Tilley, 405 Mich at 44-46. In proving an actor’s state of
mind, the jury may rely on circumstantial evidence and the reasonable inferences arising from
that evidence; indeed, minimal circumstantial evidence is sufficient to establish that a defendant
had the intent to kill. People v Unger, 278 Mich App 210, 223; 749 NW2d 272 (2008).

       Bogseth has not challenged the sufficiency of the evidence in support of a verdict of
second-degree murder. Namely, he has not challenged the sufficiency of the evidence that he
killed Kim and that he did so with malice. See Roper, 286 Mich App at 84 (stating that the
elements of second-degree murder are a death, caused by an act of the defendant, with malice,
and without justification or excuse). Instead, he maintains that there was insufficient evidence to
demonstrate that he acted with premeditation and deliberation. Nevertheless, there was strong
circumstantial evidence that Bogseth killed Kim and that he did so at some point after he picked
her up from their home at around 10:40 a.m. on September 1, 2015, but before he was seen at
work at around 12:30 p.m. later that same day.

        There was evidence that Bogseth had recently discovered that Kim had had an affair with
a neighbor, Larry Brink, with whom they were friends. Testimony established that Bogseth was
the last person to see Kim alive on September 1, 2015, which was when he picked her up to take
her to work. By his own admission, he fought with Kim during the drive. Although Bogseth
claimed to have dropped Kim off near her work, she never made it there, and her body was
discovered in the woods near their home on September 9, 2015.

        It was undisputed that someone killed Kim by bludgeoning her to death. Although there
was testimony that Kim could have died at the latest on September 6, 2015, there was testimony
that the insect activity was consistent with her dying sometime before nightfall on September 3,
2015. There was also testimony that the insect activity would have been delayed if Kim’s body
were sealed from insects or if the odors given off by her remains were masked by some
chemical. Additionally, there was evidence that Kim was killed at some other location, that she
was stripped and wrapped in plastic bags, and that her body was then moved to the place where it
was eventually found.

         There was certainly evidence from which the jury could have found that Kim died long
after Bogseth picked her up from their home on September 1, 2015, which would have made it
less likely that he was the person who killed her. However, when reviewing the sufficiency of
the evidence, this Court must be careful not to interfere with the jury’s role in deciding the
evidence. People v Mehall, 454 Mich 1, 6; 557 NW2d 110 (1997); see also People v Lemmon,
456 Mich 625, 646-647; 576 NW2d 129 (1998) (stating that when the question is “one of
credibility posed by diametrically opposed versions of the events in question,” courts must leave
the test of credibility with the trier of fact). We must resolve all conflicts in the evidence in favor
of the prosecution. People v Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005).

                                                 -3-
Moreover, we must consider all the inferences that can be fairly drawn from the evidence when
considering a challenge to the sufficiency of the evidence because, when evidence is relevant and
admissible, “it does not matter that the evidence gives rise to multiple inferences or that an
inference gives rise to further inferences.” People v Hardiman, 466 Mich 417, 428; 646 NW2d
158 (2002). In such cases, it is for the fact-finder alone to “determine what inferences may be
fairly drawn from the evidence and determine the weight to be accorded those inferences.” Id.

        A rational jury could conclude from the testimony about the state of Kim’s remains that
the person who killed her had to have taken some time to strip her, wrap her in plastic bags, and
relocate the remains from the location of the murder to the wooded area where the remains were
found. It could further infer that Kim’s killer had to have performed these activities before the
evening of September 3, 2015, which testimony established was the earliest point that the insect
activity would have begun. The jury could then find that the insect activity did not occur
because her remains were either sealed in some way or masked by chemicals after she was
killed. Once the jury made the inference that the insect activity had been prevented in some way
and that Kim’s killer must have taken some time to cover up the crime and relocate her remains,
it could conclude that she must have been killed earlier than the evening of September 3, 2015.
It could also find that the start of the insect activity corresponded to the time when her remains
were deposited in the woods, which also corresponded to the time period when Bogseth took the
latter half of the day off from work.

        The jury heard evidence that Kim abruptly and uncharacteristically ceased to participate
in her normal activities by 11:38 a.m. on September 1, 2015. Her manager testified that Kim
was a good employee who seemed to like her work and did not normally miss work. There was
also testimony that she had been called in to work early and had made arrangements to be there,
which suggested that she had no intent to miss work. Despite her plans and her work history,
Kim failed to show up for work on September 1, 2015, and no one was able to contact her about
her absence. Kim was also a heavy cell phone user, yet her cell phone ceased to send messages
as of 11:38 a.m. on September 1, 2015. Laura Lee Adams testified that she was close to Kim
and spent a significant amount of time with her. Adams said that Kim’s last text message at
11:38 a.m. was uncharacteristic, and she suspected that a subsequent Facebook post purporting to
be from Kim was not in fact from her given the flippant nature of the communication and the use
of emoticons that Kim had never used before. Adams also testified that Kim was devoted to her
son and would not have abandoned him. Kim had also expressed concern to Adams about the
custody of her son now that she was going to divorce Bogseth, which was inconsistent with
abandoning him in Bogseth’s care. Brink too testified that Kim had been worried about what her
friends thought of her and had stated her concern about preserving her friendship with Brink.

        A reasonable jury considering this evidence could find that Kim failed to show up to
work by around 11:00 a.m. and ceased communicating with her friends and family at around the
same time because she was incapacitated. The jury could also infer from Adams’s testimony that
the last message that was sent from Kim’s cell phone was made by someone other than Kim.
When considered with the forensic evidence, the jury could reasonably find that Kim was
already dead by the time the last text message was sent from her phone at 11:38 a.m. on
September 1, 2015.



                                               -4-
         Jon Evans testified that he and his family lived in the same home as Bogseth and his
family. He testified that Bogseth picked up Kim to take her to work at around 10:40 a.m. on
September 1, 2015. Brink testified that he was communicating with Kim at that time, and she
told him that Bogseth had arrived to take her to work. Additionally, Bogseth’s employer
testified that Bogseth texted him and stated that he needed to pick up his wife and take her to
work at around the same time. Bogseth also admitted to officers on two separate occasions that
he picked up his wife from their home at around 10:40 a.m. on September 1, 2015. Thus, there
was evidence that Bogseth was the last person to be with Kim before her death, which the jury
could have reasonably found occurred shortly thereafter.

        There was also testimony and evidence that Bogseth had a fairly uncommon hammer that
he routinely kept in his tool bag in his SUV, that that hammer was missing when his SUV and
home were searched within a short time after Kim’s disappearance, and that he might have taken
a replacement hammer from his employer’s tool shed. The evidence also showed that Kim was
bludgeoned to death and that her injuries were consistent with the murder weapon being a claw
hammer. Further, as already observed, there was evidence that Kim was a heavy cell phone user
and that her cell phone was used to send an uncharacteristic text message to Adams at 11:38
a.m., but no more messages after that. There was also evidence that Bogseth called Adams at
around that time and made statements to her that caused Adams to text Kim, which in turn set the
stage for the uncharacteristic text. Officers later discovered Kim’s phone in an envelope that
arrived at Bogseth’s home after Kim’s disappearance. The envelope was found in a CD case that
was similar to the one Kim usually brought to work and was seized from Bogseth’s SUV.

        A rational jury could find from this evidence that Bogseth took the phone and CD case
from Kim around the time he picked her up to take her to work. It could also infer that he used
her phone to send the uncharacteristic text message to Adams after he called Adams and that he
did so to create a plausible explanation for Kim’s disappearance. Adams’s testimony that she
had seen a Facebook message that was purportedly from Kim on September 2, 2015, but that she
did not believe it to be from Kim, also fit this scheme. Adams stated that the message related
that Kim had run off to California with a trucker on a whim—leaving behind her friends, her
family, and her young son. Thus, there was evidence that Bogseth had taken Kim’s phone and
used it and other media to convey messages that would explain Kim’s sudden disappearance and
that he had done so by at least 11:38 a.m. on September 1, 2015. Those inferences gave rise to
the inference that Bogseth was able to do so because Kim was already dead. See Hardiman, 466
Mich at 428.

         There was also evidence that Bogseth took steps to conceal his involvement in Kim’s
disappearance and to cause the investigation to focus on Brink. Testimony established that the
61 text messages that had been sent between Kim’s phone and Bogseth’s phone on the morning
of her disappearance had been deleted on both Bogseth’s phone and Kim’s phone. The fact that
the same texts—and apparently only those texts—had been deleted from both phones, when
considered with the evidence that Kim’s phone was found concealed in Bogseth’s SUV, gave
rise to an inference that Bogseth deleted the text messages from both phones and that he did so to
preclude anyone from discovering the content of the messages.




                                               -5-
       Jon Evans further testified that, on the evening after police officers searched Bogseth’s
home and found Kim’s phone in Bogseth’s SUV, someone matching Bogseth’s description and
wearing a similar shirt to the one he was wearing ran across the yard from the area of the trails
toward Brink’s home. Bogseth had been acting peculiarly after the police officers searched his
home and then left for a time. He returned shortly after the person had been seen running
through the yard behind his home. Sometime after he returned, Bogseth abruptly stated that he
had found Kim’s purse in Brink’s yard. This testimony permitted an inference that Bogseth left
on the evening after the police searched his home, retrieved Kim’s purse, and placed it on
Brink’s lawn in an apparent attempt to focus the investigation on Brink. Id.

        Considering all the circumstantial evidence together, including the evidence that Bogseth
took steps to convince others that Kim had merely run off and that he likely planted Kim’s purse
on Brink’s lawn, the jury could find beyond a reasonable doubt that Bogseth killed Kim and that
he killed her with the hammer that he normally kept in his tool bag in his SUV at some point
after he picked Kim up at around 10:40 a.m. but before he was seen at 12:30 p.m. on that same
day. That is, there was evidence from which a rational jury could conclude beyond a reasonable
doubt that Bogseth killed Kim within a short time after they drove away from their home. The
remaining question is whether there was sufficient evidence from which a reasonable jury could
infer that Bogseth acted willfully, deliberately, and with premeditation when he killed her.
Dykhouse, 418 Mich at 495.

        The evidence showed that Bogseth picked Kim up in his SUV and drove away with her.
Bogseth told officers shortly after Kim’s disappearance that he argued with Kim during the ride
to her work and that she repeatedly insisted that he let her out. There was testimony that Kim’s
injuries were consistent with having been caused by a claw hammer like the one Bogseth kept in
his tool bag in the back of his SUV. There was also testimony that her injuries would have
resulted in significant blood loss. Yet officers did not find evidence consistent with such blood
loss in Bogseth’s SUV.

        When viewed in the light most favorable to the prosecution, the testimony and evidence
established that Kim had gotten out of the SUV at some point after Bogseth picked her up from
home but before he attacked her with the hammer. Because the evidence showed that Bogseth
kept a hammer in his tool bag in the back of the SUV, a jury could reasonably infer that Bogseth
used the hammer that he had on hand to strike Kim. And it could reasonably find that he had to
retrieve his hammer before he could do so. That is, a rational jury could find from the evidence
that Bogseth had to both get out of the SUV and retrieve his hammer before he could strike Kim.
He also had to move to the location where he struck Kim outside the SUV. Testimony
established that Kim was hit in the back of the head and on the face with the hammer, and the
examination of her remains did not reveal defensive wounds. From this, the jury could infer that
Bogseth hit Kim from behind.

       The evidence that Bogseth repeatedly struck Kim in the head with the hammer permits an
inference that he intended to kill her—that is to say, that he willfully killed her. People v
Henderson, 306 Mich App 1, 11; 854 NW2d 234 (2014). The evidence that he retrieved his
hammer and moved to Kim’s location outside the SUV before striking her is evidence that he
acted with deliberation and not in the heat of the moment. Further, during the time that it would
have taken to retrieve the hammer and approach Kim before striking her, Bogseth would have

                                               -6-
had ample opportunity to consider his actions and take a second look before proceeding. See,
e.g., People v Johnson, 460 Mich 720, 733; 597 NW2d 73 (1999) (recognizing that movement
can be indicative of premeditation); Tilley, 405 Mich at 45 (recognizing that securing possession
of a weapon and following the victim is evidence of premeditation and deliberation). Thus, there
was ample time for Bogseth to deliberate and premeditate whether to kill Kim. Morrin, 31 Mich
App at 330. Moreover, although the brutality of the attack on Kim was not evidence of
premeditation and deliberation, People v Hoffmeister, 394 Mich 155, 159; 229 NW2d 305
(1975), the nature of the injuries to Kim’s skull—both back and front—suggest that Bogseth
would have had an opportunity to reflect on what he was doing before he ended her life, see
Johnson, 466 Mich at 733.

        When viewed in the light most favorable to the prosecution, the evidence permitted an
inference that Bogseth stopped the SUV, retrieved his hammer from the back, moved to the
location where Kim was after she left the SUV, and bludgeoned her to death. The choices
implicit in these acts reflect deliberation and premeditation. The prosecution presented sufficient
evidence to allow a rational jury to find beyond a reasonable doubt that Bogseth murdered Kim
and that he did so willfully, deliberately, and with premeditation. Dykhouse, 418 Mich at 495;
Morrin, 31 Mich App at 330.

                              II. DEMONSTRATIVE EVIDENCE

                                 A. STANDARD OF REVIEW

        Bogseth next argues that the trial court erred when it allowed the prosecutor to display a
hammer before the jury that was purportedly like the one he owned. The trial court had the
discretion to allow the admission of a demonstrative exhibit, People v Castillo, 230 Mich App
442, 444; 584 NW2d 606 (1998), or the use of a demonstrative aid, Campbell v Menze Constr
Co, 15 Mich App 407, 409; 166 NW2d 624 (1968). This Court reviews a trial court’s exercise of
discretion for abuse. People v Yost, 278 Mich App 341, 353; 749 NW2d 753 (2008). A trial
court abuses its discretion when it selects an outcome that falls outside the range of reasonable
and principled outcomes. Id.

                                         B. ANALYSIS

        This Court has held that a trial court may allow the admission of demonstrative evidence
such as “physical objects alleged to be similar to those involved in the incident at issue.”
Castillo, 230 Mich App at 444. Such evidence may be admitted if it satisfies the “traditional
requirements for relevance and probative value in light of policy considerations for advancing
the administration of justice.” Id. Trial courts may also allow the parties to use demonstrative
aids during the presentation of their cases, such as blackboards, charts, and visual aids designed
to help the jury understand the evidence. Campbell, 15 Mich App at 409. Whether to allow the
use of a particular demonstrative aid, whether to mark the aid for the record, and whether to give
an instruction concerning the aid are matters committed to the trial court’s discretion. Id.

       In this case, Bogseth argues that the trial court should not have allowed the prosecutor to
admit the hammer as a demonstrative exhibit because the use of a physical hammer was not
material to the case. Rather, it was merely a “dramatic prop designed to inflame and improperly

                                                -7-
influence the jury.” He also maintains that the trial court should have excluded the hammer
under MRE 403.

        The prosecutor used the hammer to clarify witness testimony and to provide the jury with
a visual representation of the missing hammer, which is more akin to the use of demonstrative
exhibit than a visual aid. Compare Castillo, 230 Mich App at 445-447 (discussing the trial
court’s decision to allow as a demonstrative exhibit a padlock similar to the one the defendant
purportedly carried and may have used to commit the crime), with Campbell, 15 Mich App at
408-409 (discussing the use of a chart listing the damages that plaintiff alleged to have suffered
as a visual aid). However, as the prosecutor correctly notes, the trial court did not admit the
hammer into evidence. Indeed, it specifically instructed the jury that it could not consider the
hammer as evidence but instead must limit its consideration to the actual evidence adduced at
trial. The hammer, the court instructed, could be considered only as a demonstrative aid to
understanding the testimony and evidence. Therefore, it cannot be said that the trial court erred
by admitting the hammer into evidence. Instead, the question is whether the trial court abused its
discretion to the extent that it allowed the prosecutor to use the hammer to clarify the two
witnesses’ testimonies and provide the jury with a demonstrative aid to understanding how that
testimony fit with the other evidence.

       Bogseth’s employer testified that Bogseth regularly used his own tools while working as
an independent contractor for his business. He stated that Bogseth kept his tools in a “black and
blue canvas tool bag,” and he identified the bag as the one depicted in photos taken by officers
after Bogseth’s SUV had been seized. His employer indicated that Bogseth also owned and used
a claw hammer with a fairly distinct appearance: it was a “steel shaft, leather ring-stacked handle
with some inlay on it.”

         Although claw hammers are common enough that the average juror would be able to
visualize such a hammer, the distinctiveness of the hammer that Bogseth’s employer described
could not be adequately conveyed by oral testimony. His identification of a physical hammer of
similar style presented the jury with a concrete representation of his oral description and allowed
it to visualize the hammer’s distinctiveness. This permitted the jury to better assess Bogseth’s
employer’s credibility because it made it more likely than not that he would accurately recall
seeing such a distinct hammer. See People v Layher, 464 Mich 756, 764-765; 631 NW2d 281
(2001) (recognizing that evidence implicating a witness’s credibility is generally relevant). It
also aided the jury in evaluating the testimony and evidence that tended to show that Bogseth no
longer had that type of hammer after Kim’s disappearance because a hammer with such
characteristics would have stood out to the officer who searched Bogseth’s SUV. Finally, a
physical representation of the hammer allowed the jury to better assess the expert testimony that
Kim’s injuries could have been caused by a claw hammer. Claw hammers come in a variety of
shapes, sizes, and weights. The employer’s identification of the hammer presented by the
prosecutor as being similar to the one he observed Bogseth using in his work gave the jury a
concrete example of the size, shape, and weight of the hammer that Bogseth may have had
available to him in his SUV, which better enabled the jury to assess the weight and credibility of
the testimony tending to suggest that Bogseth used such a hammer to bludgeon Kim to death.




                                                -8-
        For all these reasons, the hammer would likely have been relevant and admissible as a
demonstrative exhibit even though it was not the actual hammer at issue. See, e.g., MRE 401
(defining relevant evidence to be evidence having any tendency to make the existence of any fact
of consequence more probable or less probable); MRE 402 (stating that relevant evidence is
generally admissible); Castillo, 230 Mich App at 444. There is also no record evidence that the
hammer actually used as a demonstrative aid had characteristics that made it improper to display
to the jury or that the prosecutor displayed it or manipulated it in a way that unfairly prejudiced
Bogseth. As such, even if it had been offered as an exhibit, it cannot be said to have caused
unfair prejudice within the meaning of MRE 403.

        Because the prosecutor’s use of the hammer as a demonstrative aid helped the jury better
understand the evidence, did not involve unfair prejudice, and there was no danger that the jury
might misapprehend its status as an example rather than the actual item at issue, the trial court
could have properly allowed the admission of the hammer as a demonstrative exhibit.
Consequently, because the trial court could have permissibly allowed the admission of the
hammer as an exhibit, the trial court’s decision to allow the display of the hammer as a
demonstrative aid without allowing the jury to consider it as evidence cannot be said to have
fallen outside of the range of reasonable and principled decisions—at least with regard to
Bogseth. Further, because the use of the hammer was not improper, Bogseth cannot demonstrate
that defense counsel’s failure to prevent the prosecutor’s use amounted to ineffective assistance
of counsel. People v Gioglio (On Remand), 296 Mich App 12, 22-23; 815 NW2d 589 (2012),
remanded for resentencing 493 Mich 864 (2012). Therefore, he has not shown that there was
error warranting relief.

                                   III. STANDARD 4 BRIEF

        Bogseth raises a number of additional arguments in a Standard 4 brief filed under
Supreme Court Administrative Order No. 2004-6, Standard 4. He claims that the trial court erred
when it allowed the admission of certain items of evidence. He also argues that his defense
counsel was ineffective and that the prosecutor engaged in misconduct. We have examined each
of these claims of error and conclude that none have any merit.

                               A. ADMISSION OF EVIDENCE

        Bogseth first argues that the extraction reports of the data taken from his cell phone and
Kim’s cell phone were inadmissible because the data was extracted before a warrant was issued
to allow for the extraction. Bogseth asserts that Officer Gonyeau dated the extraction reports as
having been done on September 10, 2015, at 0927 hours, and claims that the warrant to permit
the extraction of the data did not issue until 11:57 a.m. on September 10, 2015. This Court
reviews a trial court’s decision to admit evidence for an abuse of discretion. Roper, 286 Mich
App at 90. However, this Court reviews unpreserved claims of error for plain error affecting the
defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

       Bogseth does not have a legitimate expectation of privacy with regard to the data on
Kim’s phone. As such, he does not have standing to challenge the search of her phone. See
People v Mahdi, 317 Mich App 446, 458-459; 894 NW2d 732 (2016). Additionally, Bogseth
has the burden to establish the factual predicate for his claim of error, but he has not submitted

                                                -9-
copies of the relevant reports or the warrant at issue. For that reason, he has not established that
Officer Gonyeau actually extracted the data before he had been authorized to do so by the
warrant. Even if Officer Gonyeau had extracted the data before the magistrate issued the
warrant, Bogseth has not shown that Officer Gonyeau would not have sought or obtained the
warrant absent evidence obtained through the illegal search. Indeed, there was testimony at the
probable cause hearing that the phones were seized during the search of Bogseth’s home to allow
for the downloading of the information on them. Had Bogseth timely objected to the extraction
reports, the prosecutor may have established that they were admissible under the independent
source doctrine. See generally People v Smith, 191 Mich App 644, 649-650; 478 NW2d 741
(1991).

        Bogseth also argues that Officer Gonyeau engaged in some impropriety involving the
phone records for the two cell phones because there is a letter from the cell phone provider that
was dated September 6, 2015, which was before the September 9, 2015, date of the search
warrant for the cell phone data. He has again failed to attach any of the relevant records.
Bogseth also alleges that Officer Gonyeau engaged in some impropriety by asserting that he
reviewed the phone records in his report even though the prosecutor still had not obtained
certified copies of those records as of the hearing held on June 3, 2016. At the hearing the
prosecutor stated that he already had the records at issue, but he had not yet received certified
copies. Therefore, it is not clear that Officer Gonyeau could not have had the cell phone carrier’s
records at the time he prepared his reports, and it is not clear that he obtained those reports
without a warrant.

        Bogseth also maintains that the trial court erred when it allowed the admission of the
reports prepared by the officer, Katherine Merideth, who tested the DNA found on the can of tire
inflator seized from Bogseth’s SUV. He maintains that Merideth’s testimony established that
she received the tire inflator can on September 11, 2015, which was before the officers obtained
a search warrant to search his SUV after his arrest. Meredith did testify that the container for
that evidence listed a date of September 11, 2015. However, she explained that “the date
received” listed on the containers refers to the date she started her assignment and not the date
that the item to be tested actually arrived at the lab. Consequently, Bogseth has not shown that
officers actually seized the can of tire inflator before obtaining a search warrant. There was no
plain error. Id.

                                B. INEFFECTIVE ASSISTANCE

        “To establish a claim of ineffective assistance of counsel, the defendant must show that
‘counsel’s representation fell below an objective standard of reasonableness’ under prevailing
professional norms and that there is a ‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’ ” Gioglio, 296
Mich App at 22, quoting Strickland v Washington, 466 US 668, 688, 694; 104 St Ct 2052; 80 L
Ed 2d 674 (1984).

        Bogseth first argues that his lawyer’s failure to file a notice of alibi was unreasonable and
prejudiced his trial. He does not, however, identify the alibi evidence that would have
established that he could not have committed the murder. Thus, he failed to establish the factual
predicate for this claim. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). Bogseth

                                                -10-
also argues that his lawyer should have called a witness who purportedly saw Kim alive at a rest
stop on September 3, 2015; should have called Adams’s husband who allegedly said to Adams,
“You killed Kimmy, you killed your best friend”; and should have called Bogseth’s private
investigator to testify about his findings. But, as with his alibi claim, Bogseth has not offered
any meaningful analysis of the law or facts, nor has he presented any evidence that these
witnesses would have testified favorably to his defense. By failing to establish the factual
predicate for this claim of error, Bogseth failed to establish that his lawyer’s decision to refrain
from calling these witnesses fell below an objective standard of reasonableness. Id.

        Bogseth also faults his lawyer for not taking steps to secure the admission of posts that
Adams made to Facebook, which he claims would establish reasonable doubt about whether
Bogseth murdered Kim. He also argues that his lawyer should have done more to obtain the
admission of the photo of Adams’s vehicles. He states that one of the vehicles shown in the
photo appears on the security footage from Walmart. The record reflects that Bogseth’s lawyer
attempted to admit the evidence of Adams’s posts to Facebook around the time of Kim’s
disappearance and the photo of Adams’s cars, but the trial court excluded the evidence because
Bogseth’s lawyer failed to timely disclose the evidence and could not offer a proper foundation
for admitting the documents or photos. Nevertheless, even if Bogseth’s lawyer’s handling of this
evidence could be said to have fallen below an objective standard of reasonableness under
prevailing professional norms, Bogseth has not shown that his lawyer’s conduct prejudiced his
trial. Gioglio, 296 Mich App at 22.

         Adams testified about the media posts and photo outside the presence of the jury. She
explained that her posts were an angry response prompted by her belief that Kim had run off
with a trucker. The evidence that she was responding angrily to what she then believed and that
she came to those beliefs as a result of posts that did not appear to have been sent by Kim gave
rise to an inference that she did not have anything to do with Kim’s disappearance. Indeed, the
evidence suggested that she had been duped. Likewise, Adams testified that she was upset with
Kim at the time because she had been led to believe that Kim abandoned her family. She
explained that she came to that conclusion after a Facebook post on Kim’s Facebook page. She
testified further that she did not think the post was by Kim. As such, the proposed evidence
would not have furthered Bogseth’s defense and may in fact have favored the prosecution’s
theory that Bogseth was trying to cover up Kim’s murder by September 2, 2015. On this record,
Bogseth has not shown that his lawyer’s failure to admit this evidence prejudiced his trial.
Gioglio, 296 Mich App at 22.

        Adams similarly stated that she owned lots of vehicles, and there was no indication that
the Walmart footage could have conclusively established that Adams’s car was at the Walmart
parking lot when a witness claimed to have seen someone who looked like Kim. Bogseth’s
lawyer apparently felt that the black car depicted in the photo looked similar to a black car in the
Walmart parking lot. Adams, however, stated that the car in the picture from her home was used
in Chicago 95% of the time. Therefore, even if Bogseth’s lawyer’s handling of this evidence
could be said to have fallen below an objective standard of reasonableness under prevailing
professional norms, any error did not prejudice Bogseth’s trial. Id.




                                               -11-
        Bogseth also suggests that the prosecutor committed discovery violations and he
impliedly faults his lawyer for failing to address the violations. He claims—without any
evidence in support—that the prosecutor failed to provide him with the requested copies of the
criminal records for Brink and Jon Evans, failed to provide all the photographs from the scene
where Kim’s remains were recovered, and failed to provide the recordings from Brink’s 9-1-1
call on the day he discovered Kim’s remains. In the absence of evidence that the prosecutor
actually committed any discovery violations, this Court has no basis to conclude that Bogseth’s
lawyer’s failure to address those violations amounted to ineffective assistance. Carbin, 463
Mich at 600.

        Finally, Bogseth argues that his lawyer’s failure to challenge his allegedly illegal arrest
and extradition from Illinois amounted to ineffective assistance. Even assuming that his arrest
and extradition were unlawful, Bogseth has not established a right to relief. Our Supreme Court
has explained that “a court’s jurisdiction to try an accused person cannot be challenged on the
ground that physical custody of the accused was obtained in an unlawful manner.” People v
Burrill, 391 Mich 124, 133; 214 NW2d 823 (1974). Rather, due process is satisfied when the
accused has been convicted after having been fairly apprised of the charges against him or her
and after having had a fair trial in accord with constitutional procedural safeguards. Id. Because
Bogseth has not shown that he did not receive a fair trial, he is not entitled to any relief.

                            C. PROSECUTORIAL MISCONDUCT

        Bogseth argues that the prosecutor failed to disclose certain items during discovery.
Specifically, he maintains that the prosecutor failed to turn over all the photos taking during the
recovery of Kim’s remains, failed to turn over the recordings of the 9-1-1 calls from the day
Kim’s remains were found, failed to disclose the criminal records for Brinks and Jon Evans, and
failed to ensure that the police officers’ field notes were preserved. However, on appeal,
Bogseth has not provided any evidence that the prosecutor actually failed to disclose or provide
evidence in discovery that Bogseth requested and over which the prosecutor had control.
Instead, the record reflects that the prosecutor complied with every discovery request.2

        Bogseth next argues that the prosecutor had an obligation to correct a witness’s false
testimony. Bogseth maintains that cell phone records showed that he was not in the witness’s
vicinity on the day that she claimed he asked her to call the police department and pretend to be
Kim, so the prosecutor had to have known that the testimony was false. It is well settled that a
prosecutor violates a defendant’s right to due process of law when he or she obtains a conviction


2
  Bogseth’s lawyer did state that they were awaiting copies of the officers’ field notes that were
used to prepare the police reports and some additional photos that may have been referred to in
various reports. However, the prosecutor informed the court that the field notes were destroyed
as a matter of routine practice once the report has been prepared and reviewed to ensure that the
report comported with the notes. The loss of evidence before a discovery request—such as the
field notes used to prepare the reports—will not warrant relief absent proof of intentional
suppression or bad faith. See People v Jones, 301 Mich App 566, 580; 837 NW2d 7 (2015).
Here, there is no evidence of an intentional suppression or bad faith.


                                               -12-
through the knowing use of perjured testimony. People v Aceval, 282 Mich App 379, 389; 764
NW2d 285 (2009). When the prosecutor knows that a witness has testified falsely, the
prosecutor has an affirmative duty to correct the testimony. People v Smith, 498 Mich 466, 476;
870 NW2d 299 (2015). However, even assuming that there was cell phone evidence to support
Bogseth’s claim, that evidence would not establish that the witness was lying or even mistaken
about the timing of the request. A prosecutor is under no obligation to disbelieve his or her own
witness’s testimony in the face of contradictory testimony or statements. See People v Lester,
232 Mich App 262, 278-279; 591 NW2d 267 (1998), overruled on other grounds People v
Chenault, 495 Mich 142; 845 NW2d 731 (2014).

         Finally, Bogseth argues that the prosecutor engaged in numerous instances of misconduct
during his closing statements. He claims that the prosecutor mischaracterized the testimony and
evidence and essentially testified as a witness. A prosecutor may not argue facts not in evidence
or mischaracterize the evidence during his or her closing statement. See Unger, 278 Mich App
at 241. The prosecutor may, however, argue the evidence and all reasonable inferences as it
relates to his or her case. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995).

        Bogseth argues that it was improper for the prosecutor to argue that Kim died someplace
other than where her remains were recovered and that her remains must have been transported to
that location from where she died. Contrary to Bogseth’s contention, there was evidence that
Kim must have died somewhere else. Bogseth also complains that the prosecutor improperly
submitted a Powerpoint presentation at trial that was made using cell phone records that had not
been certified. He asserts that the prosecutor then compounded his error by using the
presentation to argue that Bogseth fled from the area when Kim’s remains were found. The
Powerpoint presentation was made using the cell phone records that officers obtained from
Bogseth’s cell phone provider. Although Bogseth implies that the presentation was created using
the uncertified records, he has not established that fact and, in any event, does not show how the
uncertified records differed from the certified records. Assuming that the records were identical,
Bogseth has not shown that the presentation was inherently inadmissible. And the prosecutor’s
good faith attempt to seek the admission of the Powerpoint presentation does not amount to
prosecutorial misconduct. See People v Dobek, 274 Mich App 58, 71; 732 NW2d 546 (2007).
There was also testimony that Bogseth sped away from the area at around the time Kim’s
remains were found near his house, and the cell phone records showed that he made the trip to
Chicago relatively quickly. The prosecutor could argue from the totality of the evidence that
Bogseth had in fact “hightailed” it to Chicago and that his actions were evidence of a guilty
conscience. See People v Coleman, 210 Mich App 1, 4; 532 NW2d 885 (1995) (stating that
evidence of flight is admissible to prove consciousness of guilt).

       Bogseth also argues that the prosecutor improperly admitted the notebook with his
handwritten notations about the timing of events on September 1, 2015. The prosecutor
presented evidence that the notebook was found in Bogseth’s bathroom and was written in his
handwriting. As such it was relevant and admissible. MRE 401; MRE 402. And the prosecutor
was free to argue any inference that might be drawn from it, which included an inference that
Bogseth was trying to fix his story for the officers who were investigating his wife’s
disappearance.



                                              -13-
        Bogseth also believes that the prosecutor could not argue that Kim’s remains did not
show any signs of classic defensive wounds. However, there was testimony to that effect. The
fact that there was evidence that she might have suffered some injuries before death that were
consistent with defensive wounds did not make it improper for the prosecutor to argue that she
did not suffer defensive wounds and suggest that this was because she was struck from behind.
Similarly, the fact that the expert could not definitively state that Kim was bludgeoned to death
with a claw hammer did not alter the fact that the expert testified that her injuries were entirely
consistent with deaths known to have been caused by claw hammers.

        Next, Bogseth makes much of the fact that an officer stated that Kim’s cell phone sent or
received data after the last text. However, the fact that the cell phone continued to connect to the
cell network was not the same as actively sending texts. And the prosecutor could properly
argue that the last message sent from Kim’s phone was the message actually identified as the last
message by the expert who analyzed her phone.

        Bogseth further contends that it was improper for the prosecutor to argue that Kim’s
remains had been treated with some chemical to mask the odor of decomposition. Given the
evidence that Kim likely died on September 1, 2015, the prosecutor could reasonably argue that
the fact that there had been no insect activity before September 3, 2015, was because Bogseth
used some chemical to mask her odor. Contrary to Bogseth’s contention on appeal, there was no
testimony that Kim’s remains had not been treated with some chemical. Instead, the expert
explained that such a chemical had not been detected but likely could not be detected given the
level of decay.

         Bogseth also contends that the prosecutor was merely speculating when he opined that
Bogseth might have killed Kim because he was concerned about retaining custody of their child.
Adams testified that Kim was concerned about custody before her disappearance. She also
testified that Bogseth sought legal help, and she indicated he did so because he feared that Kim
might kidnap the child. Therefore, the prosecutor could properly argue that there was evidence
that Bogseth might have been motivated to kill Kim to ensure that he obtained custody.

         Bogseth next finds fault with the prosecutor’s argument that the person Jon Evans saw
running outside the home on the night that Bogseth found Kim’s purse was in fact Bogseth. Jon
testified that the man he saw was wearing a green shirt like the one Bogseth was wearing earlier.
He also agreed that the person had the same height and build as Bogseth. Thus, there is
evidentiary support for the prosecutor’s argument.

       Finally, Bogseth argues that the prosecutor built his case using inference upon inference,
which, he claims, was improper. Bogseth relies on the decision in People v Atley, 392 Mich 298;
220 NW2d 465 (1974). However, our Supreme Court specifically overruled Atley in Hardiman
and held that a case may be made using inferences premised upon inferences. Hardiman, 466
Mich at 428.




                                               -14-
                                     IV. CONCLUSION

       The prosecutor presented sufficient evidence from which a rational jury could find
beyond a reasonable doubt that he killed Kim and that his acts were willful, deliberate, and
premeditated. As such, there was sufficient evidence to support his conviction of first-degree
premeditated murder. Bogseth has also failed to establish that the prosecutor’s use of the
hammer as a demonstrative aid was improper. Finally, having carefully examined each of the
claims of error raised in Bogseth’s Standard 4 brief, we conclude that none have any merit.
Because Bogseth has not identified any errors that warrant relief, we affirm his conviction.

       Affirmed.

                                                         /s/ Jane E. Markey
                                                         /s/ Michael J. Kelly
                                                         /s/ Thomas C. Cameron




                                            -15-
