                            STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 23, 2016
               Plaintiff-Appellee,

v                                                                  No. 324373
                                                                   Ogemaw Circuit Court
SHERRY LYNN GONZALEZ also known as                                 LC No. 14-004331-FH
SHERRY LYNN KENDRICK,

               Defendant-Appellant.


Before: O’CONNELL, P.J., and OWENS and BECKERING, JJ.

PER CURIAM.

        Defendant, Sherry Gonzalez, appeals by right her conviction following a jury trial of one
count of delivery of less than 50 grams of a controlled substance, MCL 333.7401(2)(a)(iv). The
trial court sentenced her to 30 days in jail and one year of probation. We affirm.

       This prosecution stems from a controlled drug buy overseen by The Michigan State
Police Strike Team Investigative Narcotics Group (STING). The officers used a confidential
informant (CI), who set up a meeting with defendant in a grocery store parking lot and bought
the drugs with money provided by the STING unit.

        Defendant argues on appeal that her right to a fair trial was violated when the prosecutor
sought to introduce other acts evidence while questioning the CI. The disputed question came up
in the following context:

              Q. And going back to December 2, 2013, on the date, did you attempt to
       purchase illegal drugs as a CI?

               A. Yes, I did.

               Q. And from whom did you attempt to purchase those drugs from?

               A. Sherry.

               Q. And do you know Sherry’s last name?

               A. Not—not real well.

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               Q. Okay. And how do you know Sherry?

               A. Just through the neighborhood.

               Q. Okay. Was this the first time you purchased drugs from her?

               A. No.

               Q. Okay. How many times would you say you purchased drugs from her?

               Defense counsel: Objection your Honor. I . . . think this is . . . a problem.

               Prosecutor: Well, it goes to identity, your Honor.

              The court: No. No, it doesn’t go to the identity. If you want to identify,
       ask him to identify.

                                                  * * *

               Sustained. You can’t consider that.

        Defense counsel indicated that he wished to bring a motion, at which time the jury was
dismissed from the courtroom and defense counsel moved for a mistrial. Counsel argued that his
client was “entitled to a mistrial simply because I don’t think we can fix that.” The trial court
noted that the question may create the impression that defendant was a repeat offender and
“she’s not charged with that.” The trial court stated that it would take the motion under
advisement until it polled the jury.

        When the jury returned to the courtroom, the trial court explained to the jurors that even
though they had heard the witness’s answer, the objection to the question was proper, and the
trial court had stricken the answer; as such, it would be inappropriate for the jurors to consider
the answer in their deliberations. The trial court explained that it did not know if the CI’s answer
was true, and that regardless, it made no difference because it was not in evidence. The trial
court then individually polled each juror to determine whether each person could follow the
court’s instruction and not give weight to “what I just struck.” The court assured the jurors that
it was okay to admit if they would be unable to follow its instruction, as an extra juror was
available. Once it received affirmation from each juror, the trial court further instructed the jury:

              . . . I’m going to allow you to continue to sit and deliberate. And you’ve
       taken an oath, you answered truthfully and completely, and you said you would
       follow the instructions I’ve given to you. . . . What that testimony was never
       happened. . . . We know it happened, but it didn’t happen for purpose of this trial.
       ...

The court denied the motion for mistrial.

       On appeal, defendant argues that the trial court erred in denying her motion for a mistrial.
She also alleges that the prosecutor engaged in misconduct by pursuing the matter without

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providing her with proper notice. The admissibility of other acts evidence is reviewed for an
abuse of discretion. People v Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998). A trial
court’s decision to deny a motion for a mistrial is also reviewed for an abuse of discretion.
People v Dennis, 464 Mich 567, 572; 628 NW2d 502 (2001). An abuse of discretion occurs
when the trial court chooses an outcome that is outside the range of principled outcomes. People
v Schaw, 288 Mich App 231, 236; 791 NW2d 743 (2010).

       Issues of prosecutorial misconduct are reviewed de novo to determine whether the
defendant was denied a fair and impartial trial. People v Akins, 259 Mich App 545, 562; 675
NW2d 863 (2003).

     The admission of other acts evidence reflecting on a defendant’s character is limited by
MRE 404(b). People v Starr, 457 Mich 490, 495; 577 NW2d 673 (1998).

       For evidence of other crimes, wrongs, or acts to be admissible under MRE
       404(b)(1), the proponent of the evidence must show three things: (1) that the
       other acts evidence is for a proper purpose (other than to show character and
       action in conformity therewith), (2) that the evidence is relevant to an issue of fact
       that is of consequence at trial, and (3) that, under MRE 403, the danger of unfair
       prejudice does not substantially outweigh the probative value of the evidence.
       [People v Steele, 283 Mich App 472, 479; 769 NW2d 256 (2009).]

       MRE 404(b)(2) provides the procedural requirement for the admission of MRE 404(b)(1)
evidence. The section reads as follows:

               The prosecution in a criminal case shall provide reasonable notice in
       advance of trial, or during trial if the court excuses pretrial notice on good cause
       shown, of the general nature of any such evidence it intends to introduce at trial
       and the rationale, whether or not mentioned in subparagraph (b)(1), for admitting
       the evidence. If necessary to a determination of the admissibility of the evidence
       under this rule, the defendant shall be required to state the theory or theories of
       defense, limited only by the defendant’s privilege against self-incrimination.
       [MRE 404(b)(2).]

       The purposes of the notice requirement are

       (1) to force the prosecutor to identify and seek admission only of prior bad acts
       evidence that passes the relevancy threshold, (2) to ensure that the defendant has
       an opportunity to object to and defend against this sort of evidence, and (3) to
       facilitate a thoughtful ruling by the trial court that either admits or excludes this
       evidence and is grounded in an adequate record. [People v Hawkins, 245 Mich
       App 439, 454-455; 628 NW2d 105 (2001).]

        Defendant argues that her right to a fair trial was compromised by the prosecution’s
failure to give notice under MRE 404(b)(2). A review of the record in this case shows that the
prosecution failed to adhere to the notice requirement of the court rule. There was no written
notice by the prosecution of its intent to introduce evidence of other bad acts. The first time


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defendant was made aware of the prosecutor’s desire to use the evidence was when it was
brought up during the questioning of the CI.

        However, defendant cannot show the requisite prejudice. First, the trial court gave
strongly worded curative instructions when the ruling was made. See People v Bennett, 290
Mich App 465, 476; 802 NW2d 627 (stating that the court cannot find error that requires reversal
where a curative instruction would have alleviated any prejudicial effect). In addition, the
court’s final instructions included the directive that the jurors were not to consider “excluded
evidence or stricken testimony.” “It is well established that jurors are presumed to follow their
instructions.” People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Under the
circumstances presented, there is no reason to doubt the presumption that the jurors were able to
follow the trial court’s instructions on this issue.

        Further, the evidence against defendant is overwhelming. Prior to the drug transaction at
issue, the CI called defendant on the telephone and arranged to meet defendant at the grocery
store in order to make the exchange. The CI placed the call in the presence of one of the officers
involved in the STING operation. The CI was searched, equipped with purchase money, and
escorted to the drug exchange by one of the officers in an unmarked car. The officer witnessed
the CI get into defendant’s minivan, which drove away and returned shortly thereafter, at which
point the CI exited the van and turned over to the officer five Oxycodone pills. Another officer
followed defendant’s van during the entire exchange. Police officers identified defendant as the
driver of the minivan involved in the transaction; that van was registered to defendant. One
officer testified that there was no one else in the minivan except for defendant and the CI. The
CI’s testimony positively identified defendant as the person who sold the drugs to him, and an
audio recording of the transaction was played for the jury, as the CI was wired with a recording
device.

        In sum, defendant has not made an affirmative showing of prejudice or demonstrated that
the trial court abused its discretion by denying her motion for a mistrial. See People v Vettese,
195 Mich App 235, 246; 489 NW2d 514 (1992).

        Defendant also alleges prosecutorial misconduct, claiming that the improper evidence
was placed before the jury for the very purpose of poisoning defendant’s right to fair trial.
Prosecutorial misconduct issues are decided on a case-by-case basis. People v Mann, 288 Mich
App 114, 119; 792 NW2d 53 (2010). The test of prosecutorial misconduct is whether the
defendant was denied a fair and impartial trial. People v Dobek, 274 Mich App 58, 63; 732
NW2d 546 (2007). Where a defendant’s claim of prosecutorial misconduct is based on an
alleged violation of a specific, enumerated constitutional right, a reviewing court must “take
special care to ensure that the prosecutor in no way infringes upon the specific constitutional
right.” People v Blackmon, 280 Mich App 253, 261; 761 NW2d 172 (2008). A prosecutor’s
good-faith effort to admit evidence does not constitute misconduct. People v Brown, 294 Mich
App 377, 383; 811 NW2d 531 (2011).




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        Regardless of the prosecutor’s motives, defendant has not shown that she was denied a
fair and impartial trial. Again, the trial court struck the CI’s answer to the prosecutor’s question
and gave an immediate and strongly worded curative instruction, which all the jurors indicated
they would follow. Moreover, the evidence in support of the verdict was overwhelming.

       Affirmed.



                                                             /s/ Peter D. O’Connell
                                                             /s/ Donald S. Owens
                                                             /s/ Jane M. Beckering




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