            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 18, 2019
               Plaintiff-Appellee,

v                                                                  No. 342109
                                                                   Genesee Circuit Court
ELRAY CHEVEZ BAKER,                                                LC No. 16-040281-FC

               Defendant-Appellant.


Before: LETICA, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.

PER CURIAM.

        Defendant appeals as of right his jury convictions of first-degree felony murder, MCL
750.316(1)(b), larceny of $200 or more but less than $1,000, MCL 750.356(4)(a), felon in
possession of a firearm, ML 750.224f, and two counts of possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant as
a third-offense habitual offender, MCL 769.11, to life imprisonment without parole for the
felony-murder conviction, 5 to 10 years in prison for the felon-in-possession conviction, and 365
days for the larceny conviction, to be served concurrently, but consecutive to concurrent two-
year terms of imprisonment for the felony-firearm convictions. We affirm.

                                      I. BACKGROUND

       Defendant’s convictions arise from a home invasion of an occupied dwelling during the
early morning hours of June 8, 2011, in the city of Flint, during which Pedro Martinez, one of the
occupants of the house, was shot. According to other occupants in the house, two intruders were
involved in the offense, one of whom was armed with a gun. The gunman initially confronted
Pedro’s daughter, Elisa Gaona, and her husband Pablo in their bedroom. According to Elisa, the
gunman repeatedly tried to turn on a bedroom light for a table lamp by flicking a wall switch 5 to
10 times, but was unsuccessful. Elisa eventually turned on the light using a switch on the lamp.
While the gunman was in the bedroom with Elisa and Pablo, Pedro momentarily appeared
outside the bedroom door and then retreated. The gunman instructed his accomplice to look for
Pedro. After the accomplice announced, “He’s got a gun,” both intruders ran out of the bedroom
and gunshots were fired. The two intruders escaped, but Pedro was shot in the thigh. Pedro died



                                               -1-
five days later due to complications from the gunshot wound. The intruders took Elisa’s purse,
Pablo’s wallet, and a set of keys. The police obtained a DNA sample from the light switch in the
bedroom. A week or two after the offense, Elisa received her driver’s license, which had been in
her purse, in the mail. None of the items of value that were taken were ever returned.

        During the summer of 2011, defendant was implicated in a series of other home invasions
and robberies in Flint. He was charged in several of those cases, which were resolved in 2012 by
a plea agreement whereby defendant pleaded guilty to three counts of armed robbery and one
count of felony firearm, and agreed to a minimum prison sentence of 17 years for armed robbery
and two years for felony-firearm. In exchange, the prosecution agreed to dismiss other specified
cases and complaints, and also that defendant “shall not be prosecuted for any other HI’s/A.R.
during summer 2011 investigated by FPD.” It is not disputed that “HI” refers to home invasions,
“A.R.” refers to armed robberies, and “FPD” is the Flint Police Department. At the plea hearing,
the prosecutor stated that “this conviction will wrap up the Defendant’s crime spree . . . during
the summer of 2011,” and defendant’s attorney agreed that “this wraps up any and all similar
type conduct . . . during the events of the summer of 2011.” In taking defendant’s plea, the trial
court asked defendant,

       And, as has already been made reference [sic] to, your alleged crime spree during
       the summer of 2011, the incidents arising out of that time frame, also will not be
       charged; do you understand that, sir?

Defendant stated that he understood. After making a finding that defendant’s plea freely and
voluntarily made, the trial court sentenced defendant accordingly.

        In 2016, the police connected defendant to the instant case through a DNA match to the
light switch sample collected in 2011. Defendant was charged with first-degree felony murder,
first-degree home invasion, armed robbery, felon in possession of a firearm, and two counts of
felony-firearm. Defendant moved to dismiss the charges, arguing that they were precluded by
the 2012 plea agreement. After conducting an evidentiary hearing, the trial court determined that
the plea agreement only barred the prosecution from charging defendant with home invasion and
armed robbery. The court dismissed those two charges, but allowed the remaining charges to
remain. 1 The prosecution then moved to amend the information to add a charge of larceny of
$200 or more but less than $1,000, to serve as a predicate felony for felony-murder. The trial
court granted that motion. At trial, the prosecution presented evidence that the DNA from the
light switch sample matched defendant’s DNA profile. In addition, Elisa identified defendant as
the gunman who confronted her inside her house in June 2011. A jury convicted defendant of
felony murder, larceny of $200 or more but less than $1,000, felon in possession of a firearm,
and two counts of felony-firearm.



1
  The prosecution filed an interlocutory application for leave to appeal the trial court’s order
dismissing the home invasion and robbery charges. This Court denied the application. People v
Baker, unpublished order of the Court of Appeals, entered March 29, 2017 (Docket No. 337149),
lv den 500 Mich 967 (2017).


                                               -2-
                                  II. 2012 PLEA AGREEMENT

       Defendant first argues that the trial court erred by failing to dismiss all of his charges
because they arose out of his acts in 2011, in contravention of the 2012 plea agreement. We
disagree.

        A trial court’s ruling regarding a motion to dismiss is generally reviewed for an abuse of
discretion. People v Adams, 232 Mich App 128, 132; 591 NW2d 44 (1998). However, any
findings of fact by the trial court are reviewed for clear error, People v Swirles (After Remand),
218 Mich App 133, 136; 553 NW2d 357 (1996), and any questions of law are reviewed de novo,
People v Denson, 500 Mich 385, 396; 902 NW2d 306 (2017). This Court applies principles of
contract interpretation when interpreting a plea agreement. People v Martinez, 307 Mich App
641, 651-652; 861 NW2d 905 (2014). The proper interpretation of a contract, including whether
a contract is ambiguous, is reviewed de novo as a question of law. Klapp v United Ins Group
Agency, 468 Mich 459, 463; 663 NW2d 447 (2003). However, the meaning of an ambiguous
contract is a question of fact, to be decided by the trier of fact. Id. at 469.

        Preliminarily, plaintiff argues that defendant is judicially estopped from challenging the
trial court’s ruling because when plaintiff filed its application for leave to appeal the trial court’s
dismissal of the home invasion and armed robbery charges, defendant took the position that the
trial court properly determined that the plea agreement was not ambiguous and its ruling should
be affirmed. We disagree. Defendant’s statements in opposing the prior appeal must be
considered in context, and thus limited to discussing the dismissal of his home invasion and
armed robbery charges. The application of judicial estoppel requires a party to have taken a
position that is “wholly inconsistent” in a prior proceeding, and it is applied for the purpose of
precluding legal gamesmanship. See Wells Fargo Bank, NA v Null, 304 Mich App 508, 537; 847
NW2d 657 (2014). We do not believe it to be “wholly inconsistent” for defendant to contend
that the plea agreement unambiguously precluded the home invasion and robbery charges while
also contending that the agreement is ambiguous regarding any other uncharged conduct from
2011. Therefore, we reject plaintiff’s judicial estoppel argument.

        A contract is ambiguous where it is capable of conflicting interpretations. Klapp, 468
Mich at 467. That is, an ambiguity will be found “when [a term] is equally susceptible to more
than a single meaning.” Holland v Trinity Health Care Corp, 287 Mich App 524, 527; 791
NW2d 724 (2010) (quotation omitted). In the context of plea agreements, contract principles so
long as they serve the interests of justice, and words are given their common meanings and
unambiguous contracts will be enforced as written. See Martinez, 307 Mich App at 651-652.
Importantly, a contract is not ambiguous unless it fairly permits multiple reasonable
interpretations, irrespective of how inartfully it might be drafted. Woodington v Shokoohi, 288
Mich App 352, 374; 792 NW2d 63 (2010). The ultimate goal of contractual interpretation,
which prevails over any other consideration, is to ascertain and give effect to the intentions of the
parties. Detroit Trust Co v Manilow, 272 Mich 211, 218; 261 NW 303 (1935). However,
“unless a contrary intention appears,” language is generally “read and understood in its




                                                 -3-
grammatical context.” Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119
(1999).2

        The relevant portion of the plea agreement, the “additional considerations” section, states,
“Δ shall not be prosecuted for any other HI’s/A.R. during summer 2011 investigated by FPD.”
We find nothing ambiguous about this statement. It is undisputed that, translated to full English,
this provides that “defendant shall not be prosecuted for any other home invasions/armed
robberies during summer 2011 investigated by the Flint Police Department.” The word “shall” is
unambiguously mandatory. People v Grant, 445 Mich 535, 542; 520 NW2d 123 (1994). The
only grammatically reasonable way to understand the rest of the sentence is that “investigated by
the Flint Police Department modifies “home invasions/armed robberies during summer 2011,”
which in turn is what “shall not be prosecuted.” See Sun Valley Foods, 460 Mich at 237
(discussing the last antecedent rule). The phrase “prosecuted for” clearly indicates the particular
charges that shall not be pursued. We perceive nothing on the face of the agreement to suggest
that it applies to any conduct other than: (1) a home invasion or armed robbery, (2) that was
committed during the summer of 2011, and (3) that was investigated by the Flint Police
Department. The plea agreement is therefore facially unambiguous and did not preclude
prosecuting defendant for any other crimes he committed during that time period.

        Nevertheless, the written plea agreement did not occur in a vacuum. As noted, at the plea
hearing, the prosecutor stated that the plea deal would “wrap up” defendant’s “crime spree” from
the summer of 2011. Defendant’s attorney, with somewhat more nuance, also stated that it
would “wrap[] up any and all similar type conduct” from that time period. Defendant’s response
to the trial court’s somewhat unclear inquiry appears to indicate that he also understood the deal
to be that he would not be prosecuted for any other crimes he committed during the summer of
2011. As a consequence, we conclude that the testimony given at the plea hearing, on the record,
clearly reveals a latent ambiguity in the plea agreement. See Shay v Aldrich, 487 Mich 648, 667-
668; 790 NW2d 629 (2010). In particular, the resulting agreement is ambiguous as to whether it
specifically precludes charges only for home invasion or armed robbery, or whether it more
generally precludes charges for any crimes arising out of transactions involving home invasion
or armed robbery. It was therefore proper for the trial court to hold an evidentiary hearing to
determine the parties’ intent.

       At the evidentiary hearing, testimony was presented from the prosecutor from 2012, the
attorney who represented defendant in 2012, and a retired Flint Police detective who had worked
on several cases involving defendant in 2011 to 2012. The detective stated that defendant had
been a suspect in Pedro’s murder at the time, but that he never disclosed that fact to the
prosecutor. The prosecutor testified that his office was aware that defendant had “a bunch” of
open files and there were still other complaints pending for crimes committed in 2011.
However, he denied having any knowledge that defendant was considered a suspect in a
homicide case, and said he would have specifically mentioned a homicide case in the plea



2
 Although Sun Valley Foods involved construction of a statute, the principles of statutory and
contractual interpretation are essentially the same. See Klapp, 468 Mich at 468.


                                                -4-
agreement if it was intended to be covered by the agreement. The prosecutor denied that the
agreement was ever intended to cover a charge of felony murder, and stated that it was intended
to encompass any other home invasions and armed robberies from the time period that had been
investigated by the police.

         Defendant’s attorney from 2012 similarly testified that he had no knowledge that
defendant was potentially connected to a homicide case at the time of the agreement. Neither
defendant nor the prosecutor had ever mentioned any connection to a possible murder
investigation. Counsel stated that he would have added a specific reference to a murder case if
he intended to have it resolved by the agreement. Defense counsel explained that he requested
the “Additional considerations” provision because, based on defendant’s history, he suspected
that defendant may have been involved in other matters and he wanted to make sure “that all
home invasions and armed robberies [were] closed up” by the plea agreement. Counsel stated
“that if there were any further home invasions, armed robberies, anything that was a similar type
conduct out there, that this cleans him up so he can proceed to a sentence and do his time and be
done with it.” This testimony is consistent with his statement at the plea hearing that the
agreement “wraps up any and all similar type conduct during the events – during the events of
the summer of 2011” (Emphasis added).

        In light of this testimony, and the fact that none of the parties to the plea agreement
mentioned or were even aware of any potential homicide case, the trial court did not clearly err
by finding that the parties did not intend for the plea agreement to extend to the additional
charges in this matter—for offenses other than home invasion and armed robbery. There could
be no meeting of the minds that the plea agreement was intended to cover any such other
charges. Additionally, the interests of justice do not support defendant’s position. It does not
serve the interests of justice to apply the plea agreement to a charge of felony murder that no one
considered or contemplated at the time the agreement was reached, especially where defendant
also did not disclose any possible homicide or request broader language. Although prosecutors
are bound by unwise plea bargains, Martinez, 307 Mich App at 653, they are not bound by
agreements they did not actually make. The trial court did not clearly err by finding that the
parties never intended for the 2012 plea agreement to extend to a homicide, or indeed any crime
other than home invasion or armed robbery, even if it was perpetrated during the commission of
a home invasion or robbery. Accordingly, the trial court did not err by refusing to dismiss the
remaining charges in this case.

                         III. AMENDMENT OF THE INFORMATION

       Next, defendant argues that the trial court erred by allowing the prosecution to amend the
information to add a new count of larceny of $200 or more but less than $1,000, MCL
750.356(4)(a), and to amend the felony-murder count to list that larceny offense as the predicate
offense for felony murder. We disagree.

       MCR 6.112(H) provides that “[t]he court before, during, or after trial may permit the
prosecutor to amend the information . . . unless the proposed amendment would unfairly surprise
or prejudice the defendant.” A trial court’s decision to grant or deny a motion to amend an
information is reviewed for an abuse of discretion. People v McGee, 258 Mich App 683, 686-
687; 672 NW2d 191 (2003). “A trial court abuses its discretion when its decision falls outside

                                                -5-
the range of reasonable and principled outcomes, or makes an error of law.” People v Swain,
288 Mich App 609, 628-629; 794 NW2d 92 (2010) (citations omitted).

        Defendant argues that the larceny charge is precluded by the 2012 plea agreement
because it is a lesser included offense of robbery. 3 Larceny could at one time have been a lesser
included offense of robbery, but only larceny from the person. People v Beach, 429 Mich 450,
484; 418 NW2d 861 (1988). However, even that is no longer the case, and “larceny-from-the-
person is no longer a necessarily included lesser offense of robbery.” People v Smith-Anthony,
494 Mich 669, 687 n 53; 837 NW2d 415 (2013). Otherwise, “larceny is committed when one
steals the property of another outside the person’s presence.” People v Perkins, 473 Mich 626,
634 n 9; 703 NW2d 448 (2005) (emphasis added). The amendment did not seek to add a charge
of larceny from the person, MCL 750.357, but rather sought to charge defendant with larceny of
$200 or more but less than $1,000, MCL 750.356(4)(a). A person can commit the offense of
robbery by stealing property from a person regardless of the value, MCL 750.529, but the added
charge required proof that defendant stole property with a specific monetary value. Thus,
larceny of $200 or more but less than $1,000 is not a necessarily included lesser offense of
robbery. Because the 2012 plea agreement did not cover crimes other than home invasions or
armed robberies, it did not preclude the charge of larceny of $200 or more but less than $1,000.

       Defendant does not otherwise claim that he was surprised by the amendment.
Accordingly, the trial court did not err by granting the prosecution’s motion to amend to add the
charge of larceny of $200 or more but less than $1,000, and allowing that charge to serve as the
predicate offense for the felony-murder charge.

                                IV. OTHER-ACTS EVIDENCE

       Defendant next argues that the trial court erred by allowing the prosecution to present
evidence of his involvement in three other offenses in the same area of Flint during the same
general time period in which the charged offense was committed. Defendant argues that the
evidence amounted to nothing more than character evidence impermissible under MRE 404(b),
and in any event it should have been excluded under MRE 403 because of its prejudicial effect.
We disagree.

        MRE 404(b)(1) prohibits evidence of a defendant’s other bad acts “to prove the character
of a person in order to show action in conformity therewith,” but permits such evidence for other,
noncharacter purposes. MRE 404(b)(1) is a rule of inclusion and “[e]vidence relevant to a
noncharacter purpose is admissible under MRE 404(b) even if it also reflects on a defendant’s
character.” People v Mardlin, 487 Mich 609, 615; 790 NW2d 607 (2010). “Evidence is
inadmissible under this rule only if it is relevant solely to the defendant’s character or criminal


3
  Defendant also argued below that because larceny of $200 or more but less than $1,000 is
designated a misdemeanor, MCL 750.356(4)(a), it could not serve as a predicate felony for the
felony-murder charge. Under MCL 750.316(1)(b), however, “larceny of any kind” is a
permissible predicate offense for felony murder. People v Bass, 317 Mich App 241, 267; 893
NW2d 140 (2016).


                                                -6-
propensity.” Id. at 615-616. Under MRE 403, relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice. People v Sabin
(After Remand), 463 Mich 43, 57-58; 614 NW2d 888 (2000). We review the trial court’s
decision whether to admit evidence for an abuse of discretion, but we review de novo any
preliminary questions of law. Denson, 500 Mich at 396.

        The prosecution introduced evidence that on June 8, 2011, defendant entered a home
during the night looking for drugs and money, robbed the family of other valuables, and left the
house with the valuables, which he loaded into a resident’s vehicle. A second incident occurred
at the home of another couple late at night on June 14, 2011. That home was two or three blocks
from where Pedro’s murder was committed. In the third incident, defendant entered a home and
robbed a family during the early morning hours of June 11, 2011. Defendant entered guilty pleas
in these three cases, pursuant to the previously mentioned plea agreement. The court admitted
this evidence pursuant to MRE 404(b)(1).

        Defendant affirmatively “admits that the prosecution stated a proper purpose for the
propensity [sic] evidence.” Defendant’s argument is essentially that the prosecution’s stated
purpose was a sham. The prosecution has the initial burden of establishing the relevancy of the
evidence for a permissible purpose under MRE 404(b)(1). People v Knox, 469 Mich 502, 509;
674 NW2d 366 (2004). The evidence was offered for its probative value in establishing
defendant’s identity as the person responsible for the charged offense, which was a disputed
issue in the case. The prosecutor sought to establish defendant’s identity by showing that the
commission of the instant offense was a manifestation of defendant’s common scheme or plan in
committing like offenses in the same area, during the same general time period. To establish the
existence of a common design or plan, there must be sufficient common features to infer the
existence of a plan rather than a series of similar spontaneous acts, but the plan revealed need not
be distinctive or unusual. Sabin, 463 Mich at 65-66.

        The other-acts evidence involved defendant’s commission of similar crimes, for which he
had entered guilty pleas. The other offenses were committed around the same period of time as
the instant offense, in the same general area of the city of Flint. In addition, the other crimes and
the instant offense shared the common features of breaking into occupied homes late at night or
early in the morning, when the occupants were likely asleep, and then attempting to corral the
occupants together and hold them at gunpoint while searching the homes for valuables. The
cases also showed a similar pattern of defendant needing to take the victims’ vehicles to get
away, but then offering to call the victims to let them know where they could retrieve their
vehicles. Although a vehicle was not taken in this case, defendant had demanded the keys to a
Mustang in the driveway, but then had to abruptly leave when he was confronted by Pedro,
which led to an exchange of gunfire. However, Elisa’s driver’s license, which was taken during
the offense, was returned to her in the mail a week or two later. The jury could find that the
courtesy return of the driver’s license, like the courtesy call regarding the location of the stolen
vehicles in the other cases, was a unique feature that showed a similar scheme, plan, or method
of attempting to return property that defendant no longer needed or was not interested in.
Accordingly, the trial court did not abuse its discretion by finding that the evidence was relevant
for a permissible, noncharacter purpose under MRE 404(b)(1).



                                                -7-
         Defendant also argues that the evidence should have been excluded under MRE 403
because of its prejudicial effect. Unfair prejudice under MRE 403 does not refer to any
damaging evidence, but rather to “the tendency of the proposed evidence to adversely affect the
objecting party’s position by injecting considerations extraneous to the merits of the lawsuit, e.g.,
the jury’s bias, sympathy, anger, or shock.” People v Pickens, 446 Mich 298, 337; 521 NW2d
797 (1994) (quotation omitted). To determine if evidence should be excluded under MRE 403,
the trial court should balance the following factors:

                  [T]he time required to present the evidence and the possibility of delay,
          whether the evidence is needlessly cumulative, how directly the evidence tends to
          prove the fact for which it is offered, how essential the fact sought to be proved is
          to the case, the potential for confusing or misleading the jury, and whether the fact
          can be proved in another manner without as many harmful collateral effects.
          [People v Blackston, 481 Mich 451, 462; 751 NW2d 408 (2008).]

“Unfair prejudice may exist where there is a danger that the evidence will be given undue or
preemptive weight by the jury or where it would be inequitable to allow use of the evidence.” Id.

        Importantly, the defense denied that defendant was responsible for the charged offense.
In a recorded police interview that was admitted at trial, 4 defendant denied ever being in the area
of Flint where the crime was committed. However, defendant pleaded guilty to the other
offenses, which were committed in the same geographic area, and the similarities between the
other cases and this case were probative of defendant’s identification as a participant in this
offense. Before the other-acts evidence was presented, the trial court instructed the jury on the
limited, permissible purpose of the evidence, and it repeated that instruction in the final jury
instructions, telling the jury that it “must not decide that [the evidence] shows that the Defendant
is a bad person, or that he is likely to commit crimes” and “[y]ou must not convict the Defendant
here because you think he is guilty of other bad conduct.” These instructions reduced the
likelihood of any unfair prejudice, and “[j]urors are presumed to follow their instructions.”
People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003). The trial court did not
abuse its discretion by ruling that the probative value of the evidence was not substantially
outweighed by the danger of unfair prejudice.

                              V. SUFFICIENCY OF THE EVIDENCE

        Defendant argues that the evidence was insufficient to prove the malice element of felony
murder. We disagree. A defendant’s challenge to the sufficiency of the evidence is reviewed de
novo. People v Harverson, 291 Mich App 171, 177; 804 NW2d 757 (2010). We must review
the evidence in a light most favorable to the prosecution to determine whether there was
sufficient evidence to justify a rational trier of fact in finding the defendant guilty beyond a
reasonable doubt. People v Wolfe, 440 Mich 508, 513-515; 489 NW2d 748 (1992), amended
441 Mich 1201 (1992). “Circumstantial evidence and reasonable inferences drawn therefrom
may be sufficient to prove the elements of a crime.” People v Jolly, 442 Mich 458, 466; 502


4
    We discuss the propriety of admitting the interview infra.


                                                   -8-
NW2d 177 (1993). “This Court will not interfere with the trier of fact’s role of determining the
weight of the evidence or the credibility of witnesses.” People v Williams, 268 Mich App 416,
419; 707 NW2d 624 (2005). All conflicts in the evidence must be resolved in the prosecution’s
favor. Id.

        In People v Carines, 460 Mich 750, 758-759; 597 NW2d 130 (1999), our Supreme Court
set forth the elements of felony murder as:

                (1) the killing of a human being, (2) with the intent to kill, to do
                great bodily harm, or to create a very high risk of death or great
                bodily harm with knowledge that death or great bodily harm was
                the probable result [i.e., malice], (3) while committing, attempting
                to commit, or assisting in the commission of any of the felonies
                specifically enumerated in [the statute, including armed robbery].
                [Citation omitted, alterations by the Carines Court.]

Defendant only challenges the element of malice. “The facts and circumstances of the killing
may give rise to an inference of malice.” Carines, 460 Mich at 759. “A jury may infer malice
from evidence that the defendant intentionally set in motion a force likely to cause death or great
bodily harm.” Id. “Malice may also be inferred from the use of a deadly weapon.” Id.

        The evidence at trial indicated that defendant was armed with a loaded gun and was
prepared to use it. Indeed, he knew that the gun was loaded and operational because he fired
shots at some dogs during the offense, before his confrontation with Pedro. After Pedro retreated
from the bedroom, both Elisa and Pablo observed defendant leaving the bedroom and firing his
gun as he left. Pedro was shot in the thigh. The jury could infer from this evidence that
defendant intentionally fired his gun at Pedro. Defendant’s possession and use of a loaded
firearm, together with his decision to discharge that firearm at Pedro, was sufficient to allow the
jury to find beyond a reasonable doubt that defendant possessed the intent to kill, to do great
bodily harm, or to create a very high risk of death or great bodily harm with knowledge that
death or great bodily harm was the probable result. Carines, 460 Mich at 759. Accordingly,
there was sufficient evidence of malice to support defendant’s felony-murder conviction.

                        VI. DEFENDANT’S INTERVIEW STATEMENT

           Defendant also argues that the introduction of his recorded police interview at trial denied
him a fair trial because it infringed on his presumption of innocence. Defendant concedes that
his interview was admissible under MRE 801(d)(2)(A), as a party’s own statement, but he argues
that the statement should have been excluded under MRE 403 because its probative value was
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or its
tendency to mislead the jury. We disagree. Because defendant did not object to the introduction
of this evidence at trial, this issue is unpreserved. MRE 103(1)(a). We review unpreserved
issues for plain error affecting a defendant’s substantial rights. Carines, 460 Mich at 763-764.
An error is plain if it is clear or obvious, and an error affects substantial rights if it is prejudicial,
i.e., if it affects the outcome of the proceedings. People v Jones, 468 Mich 345, 355; 662 NW2d
376 (2003).


                                                   -9-
        Defendant argues that the police officer’s questions during the interview suggested that
defendant was lying or needed to prove his innocence, and thereby shifted the burden of proof
and infringed on defendant’s presumption of innocence. After reviewing the entire record and
reviewing defendant’s police interview in context, it is neither clear nor obvious that the
interview infringed on defendant’s right to be presumed innocent. The evidence was probative
because it conveyed defendant’s position with regard to the charges in this case in response to
police questioning. It was not unduly prejudicial because defendant consistently maintained his
innocence during the interview, despite accusations or implications that he was lying or was
involved. Defendant has not shown that it was unfair or inequitable for the jury to hear both
defendant’s responses and the officer’s questions during the interview. See Blackston, 481 Mich
at 462. In addition, the trial court instructed the jury that it “must start with the presumption that
the Defendant is innocent,” that “the prosecutor must prove each element of the crime beyond a
reasonable doubt,” and that “[t]he Defendant is not required to prove his innocence or to do
anything.” The court’s instructions were sufficient to alleviate defendant’s concerns regarding
the presumption of innocence and to protect defendant’s substantial rights. Again, we presume
the jurors followed their instructions. Abraham, 256 Mich App at 279.

       Affirmed.

                                                              /s/ Anica Letica
                                                              /s/ Amy Ronayne Krause
                                                              /s/ Mark T. Boonstra




                                                -10-
