                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 22, 2017
               Plaintiff-Appellee,

v                                                                  No. 332471
                                                                   Saginaw Circuit Court
GEORGE JOSEPH BROWN,                                               LC No. 15-041661-FC

               Defendant-Appellant.


Before: TALBOT, C.J., and BECKERING and M. J. KELLY, JJ.

PER CURIAM.

      Defendant, George Brown, appeals by right his convictions, following a jury trial, of
armed robbery, MCL 750.529, and conspiracy to commit armed robbery, MCL 750.529; MCL
750.157a. Because there are no errors warranting reversal, we affirm.

                                       I. BASIC FACTS

         This case arose following the armed robbery of Willie Farmer. The prosecutor’s theory
at trial was that Talia Laframboise and Brown drove to Farmer’s house intending to rob him.1
The defense theory was that Laframboise and someone else—possibly a new boyfriend—had
committed the crimes. The defense further theorized that Laframboise had testified that Brown
was with her during the armed robbery because she had a contentious breakup with Brown two
months before the robbery and because she was trying to protect the other man. In support, the
defense presented evidence that on the night of the robbery, Brown was home with his mother.
The jury, however, rejected his alibi defense and convicted Brown of armed robbery and
conspiracy to commit armed robbery.

       This appeal follows.




1
  Laframboise testified that she was charged in connection with the incident at Farmer’s house.
She stated that she wanted to make a deal with the prosecutor’s office but that, as of the time of
trial, she had yet to reach an agreement.


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                           II. SUFFICIENCY OF THE EVIDENCE

                                 A. STANDARD OF REVIEW

        Brown first argues that there was insufficient evidence to convict him of conspiracy to
commit armed robbery. Challenges to the sufficiency of the evidence are reviewed de novo.
People v Henry (After Remand), 305 Mich App 127, 142; 854 NW2d 114 (2014). “[W]hen
determining whether sufficient evidence has been presented to sustain a conviction, a court must
view the evidence in a light most favorable to the prosecution and determine whether any
rational trier of fact could have found that the essential elements of the crime were proven
beyond a reasonable doubt.” People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992). “All
conflicts in the evidence must be resolved in favor of the prosecution.” People v Kanaan, 278
Mich App 594, 619; 751 NW2d 57 (2008).

                                         B. ANALYSIS

        A conspiracy exists when “[a]ny person . . . conspires together with 1 or more persons to
commit an offense prohibited by law . . . .” MCL 750.157a. “Conspiracy is a specific-intent
crime, because it requires both the intent to combine with others and the intent to accomplish the
illegal objective.” People v Mass, 464 Mich 615, 629; 628 NW2d 540 (2001). Because of the
clandestine nature of criminal conspiracies, “direct proof of the conspiracy is not essential;
instead, proof may be derived from the circumstances, acts, and conduct of the parties.” People
v Justice (After Remand), 454 Mich 334, 347; 562 NW2d 652 (1997). “For intent to exist, the
defendant must know of the conspiracy, must know of the objective of the conspiracy, and must
intend to participate cooperatively to further that objective.” People v Blume, 443 Mich 476,
485; 505 NW2d 843 (1993). The essence of conspiracy is an unlawful agreement, and the crime
is complete with the formation of the agreement. Justice (After Remand), 454 Mich at 345-346.
The elements of armed robbery are:

       (1) the defendant, in the course of committing a larceny of any money or other
       property that may be the subject of a larceny, used force or violence against any
       person who was present or assaulted or put the person in fear, and (2) the
       defendant, in the course of committing the larceny, either possessed a dangerous
       weapon, possessed an article used or fashioned in a manner to lead any person
       present to reasonably believe that the article was a dangerous weapon, or
       represented orally or otherwise that he or she was in possession of a dangerous
       weapon. [People v Chambers, 277 Mich App 1, 7; 742 NW2d 610 (2007).]

        Brown argues that there is insufficient evidence to establish that he conspired with
Laframboise to commit armed robbery. In support, he notes that Laframboise indicated that she
was unaware that Brown was going to enter Farmer’s house and assault him. However, the
prosecutor presented evidence that Laframboise and Brown arrived together. Laframboise stated
that they were going to purchase Vicodin pills from Farmer and split the money they would
make reselling the pills. She stated that when they arrived, she went inside alone and counted
the pills into a plastic bag to make sure they were all there. She added that Brown, who was
outside, was going to pay for the pills. After making sure the pills were there, she either went
outside or started to go outside, and Brown came inside and hit Farmer with a wooden bat that

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belonged to Laframboise’s son. Farmer fell to the floor, and Brown stood over him and
threatened to hit him again if he tried to get up. Farmer testified that while he was on the floor,
he could hear Laframboise “in the kitchen scraping up stuff” and “ram-shacking [sic] his house.”
Several items were missing after Brown and Laframboise left, including Farmer’s keys, cell
phone, and his prescription pills. Laframboise confirmed that after leaving Farmer’s house with
Brown, she saw Brown with the pills that she had counted into the plastic bag. She also testified
that they had not paid for the pills. Viewing this evidence in the light most favorable to the
prosecution, there is sufficient evidence to establish that Brown and Laframboise conspired to
commit armed robbery.

                            III. PROSECUTORIAL MISCONDUCT

                                 A. STANDARD OF REVIEW

        Brown next argues that the prosecutor committed misconduct during rebuttal argument
by denigrating the defense arguments, by arguing facts not in evidence, and by shifting the
burden of proof. Brown did not object at trial, so the issue is unpreserved. See People v Bennett,
290 Mich App 465, 475; 802 NW2d 627 (2010). We review unpreserved errors for “plain error
affecting substantial rights.” Id. “ ‘Reversal is warranted only when plain error resulted in the
conviction of an actually innocent defendant or seriously affected the fairness, integrity, or
public reputation of judicial proceedings.’ ” Id. at 475-476, quoting People v Callon, 256 Mich
App 312, 329; 662 NW2d 501 (2003). Moreover, we will not find reversible error “where a
curative instruction could have alleviated any prejudicial effect.” Bennett, 290 Mich App at 476
(citation and quotation marks omitted).

                                         B. ANALYSIS

         “[T]he test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). In reviewing a
claim of prosecutorial misconduct, we examine allegedly improper remarks in context. People v
Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). It is improper for a prosecutor to
suggest that a defendant’s lawyer is “intentionally attempting to mislead the jury.” People v
Unger, 278 Mich App 210, 236; 749 NW2d 272 (2008). Further, “the prosecution may never
shift its burden to prove that defendant is guilty beyond a reasonable doubt and obligate the
defendant to prove his innocence.” People v Rosales, 160 Mich App 304, 312; 408 NW2d 140
(1987). Finally, a prosecutor may not make a statement of fact to the jury that is unsupported by
the evidence. People v Stanaway, 446 Mich 643, 686; 521 NW2d 557 (1994).

        Brown first argues that the prosecutor committed misconduct by calling the defense
arguments “phantoms” and “red herrings.” During closing argument, Brown’s lawyer argued
that Laframboise committed the armed robbery with “this other person that she wants to protect”
and then blamed Brown because she had a “very contentious breakup” with him two months
earlier. Brown’s lawyer then suggested that it was “likely” that Laframboise had “a new
boyfriend, or a new friend,” that they wanted drugs but did not have money, so they planned to,
and actually did, rob Farmer. In response, the prosecutor referred to the other person referenced
by Brown’s lawyer as a “phantom whatever.” He noted that Laframboise had been on the stand,
but had not been questioned about a new boyfriend. He suggested that the question had not been

                                                -3-
asked because it is easier to argue Laframboise has a new boyfriend that happens to have the
same build as Brown in the absence of direct testimony about whether such a man existed.

        Brown’s lawyer also argued that Brown was at his mother’s house during the incident.
He noted that Brown’s mother had testified that Brown was present and that she remembered
that date in particular because her “other son” had also been present. In response, the prosecutor
asserted that if Brown’s brother had something to add, “we would have heard from him.”
Collectively, the prosecutor referred to the arguments relating to the other person and Brown’s
brother as “red herrings” and “phantoms.” He also referred to the defense theory as
“hypothetical.” Because the prosecutor’s arguments with regard to Laframboise’s alleged new
boyfriend and with regard to Brown’s brother were in direct relation to arguments made by
Brown’s lawyer in his closing argument, the prosecutor did not commit reversible error. Dobek,
274 Mich App at 64. Additionally, any prejudice caused by the comments could have been
cured by a timely objection and curative instruction, so even if the comments were improper,
they do not amount to reversible error. Bennett, 290 Mich App at 476.

       Brown next argues that the prosecutor’s comments improperly shifted the burden of proof
by suggesting that Brown’s lawyer should have asked Laframboise whether she had a new
boyfriend during cross-examination. However, a prosecutor’s commentary on a defense
lawyer’s failure to ask certain questions at trial does not shift the burden of proof to the
defendant unless it implicates the defendant’s right not to testify. People v Fields, 450 Mich 94,
111-113; 538 NW2d 356 (1995). Here, the prosecutor merely highlighted a weakness between
Brown’s lawyer’s argument and the evidence produced at trial.

        Further, although Brown argues that the prosecutor also improperly shifted the burden of
proof by suggesting that Brown’s brother should have been produced to corroborate his alibi
defense, “where a defendant testifies at trial or advances, either explicitly or implicitly, an
alternate theory of the case that, if true, would exonerate the defendant, comment on the validity
of the alternate theory cannot be said to shift the burden of proving innocence to the defendant.”
Id. at 115. Here, Brown’s mother testified that Brown was at her home at the time of the armed
robbery. Because she provided Brown with an alibi and suggested that his brother was also in
the home at the time, the prosecutor’s comment that Brown’s brother would have testified if his
testimony could have helped the defense is not improper. Also, the prosecutor immediately
followed his comments by acknowledging that “the burden of proof is with me.” Further, the
trial court instructed the jury that the prosecutor “must prove each element beyond a reasonable
doubt,” and “[t]he defendant is not required to prove his innocence or to do anything.”
Therefore, even if the comments were improper, because “[i]t is well established that jurors are
presumed to follow their instructions,” People v Graves, 458 Mich 476, 486; 581 NW2d 229
(1998), we discern no reversible error arising from the prosecutor’s remarks.

       Finally, Brown argues that the prosecutor committed misconduct by arguing matters not
in evidence. Specifically, near the start of his rebuttal argument, the prosecutor stated, “We
heard a lot of discussion about real bullying, which brings back memory of a 20 year old case
where somebody has a warrant out for a real killer.” The prosecutor also argued that if
Laframboise had been asked if she had a new boyfriend her answer would have been “no.” Both
comments pertained to matters outside the evidence, given that Laframboise did not testify about
a potential new boyfriend and there was no testimony about the 20-year-old case. However, the

                                               -4-
comments were isolated and brief, and they did not likely deflect the jury’s attention from the
evidence. See Unger, 278 Mich at 237, 239. Additionally, the trial court instructed the jury that
the statements of the lawyers were not to be considered as evidence, and this instruction lessened
any prejudice. People v Bahoda, 448 Mich 261, 281; 531 NW2d 659 (1995). Again, jurors are
presumed to follow instructions. Graves, 458 Mich at 486. Accordingly, we find that while the
record did not support the statements, they were not so significant as to deny Brown a fair trial.

       Affirmed.

                                                            /s/ Michael J. Talbot
                                                            /s/ Jane M. Beckering
                                                            /s/ Michael J. Kelly




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