            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 17, 2019
              Plaintiff-Appellee,

v                                                                  No. 339917
                                                                   Kent Circuit Court
CHRISTIAN WILLIAM HILLMAN,                                         LC No. 16-010254-FC

              Defendant-Appellant.


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

PER CURIAM.

        Defendant appeals as of right his jury conviction of second-degree murder in violation of
MCL 750.317. Defendant savagely beat an elderly man in a road-rage incident causing the
victim to go into a coma and later die. The trial court sentenced defendant to 270 months to 100
years of imprisonment. We affirm.

                                      I. BACKGROUND

        During the evening hours of September 29, 2016, defendant and the victim became
involved in an altercation by the side of the road. Defendant was riding a dirt bike without an
operable headlight and the victim was driving a truck. Defendant told police that the victim
attempted to run him off the road, allegedly sparking the altercation. Both defendant and the
victim ended up pulling off the road into a church parking lot, where a physical altercation
ensued. At the time, defendant was under 20 years old and the victim was in his 60’s. The
victim ended up on the ground and defendant, who was wearing steel-toe boots, repeatedly
kicked the victim in the ribs and the head. Multiple witnesses testified that they saw defendant
viciously kicking the victim, even after the victim was completely incapacitated and lying
helpless on the ground. Multiple witnesses testified that they heard defendant stating that the
victim deserved what happened to him because that was what he got for “messing” with
defendant. Witnesses also observed that the victim’s pants had been pulled down around his
ankles.

      In addition, witnesses testified that defendant left the scene at one point, only to return
and continue viciously kicking the incapacitated victim in the ribs and the head. Defendant
himself admitted that when he left the scene, the victim was lying on the ground, gurgling on his
own blood. Defendant left the scene and did not contact authorities to obtain medical assistance
for the victim. Defendant returned to his home with two friends and stated that he hit the victim
because the victim deserved it. One of defendant’s friends testified that defendant was excited
when he described the incident and that defendant acted proud of what he had done. When he
met with police, defendant stated that he gave the victim “a thorough ass beating.” The victim
spent approximately one month in a coma and ultimately died of his injuries, without being able
to speak about what happened.

        On the night of the incident, the police interviewed defendant in an interview room at the
sheriff’s department. During the initial portion of that interview, defendant willingly spoke with
police officers about the incident with the victim. Once defendant asserted his right to an
attorney, the police officers ceased their interrogation. After he asserted his right to an attorney,
defendant asked the police officers to return his cell phone to him. The police officers did so and
defendant made several calls while in the police interview room, including a call to his mother.
The police captured a video and audio recording of defendant’s words and conduct in the
interview room with a hidden recording device. Defendant did not know that he was being
recorded when he was left alone in the police interview room, including the period when he
called his mother.

         At trial, the prosecutor sought to play approximately 40 minutes of the recording for the
jury. Defense counsel initially objected to only the eight-minute period of the recording
containing defendant’s telephone call with his mother. Defense counsel later conceded that the
first six minutes of that eight-minute period were relevant and probative evidence, and focused
his objection on only a two-minute period of the recording containing defendant’s telephone call
with his mother. During that portion of the telephone call, defendant used vulgar language,
including a vulgar epithet repeatedly directed at one of the police officers present during the
police interview. Defendant discussed with his mother the fact that police officers were then
executing a search warrant of his home. Defendant objected to his mother’s decision to allow
the police officers into the home, to which his mother responded that the police officers had a
warrant. In addition, defendant visibly reacted to the news that the police officers seized his
boots from the home. Evidence admitted at trial indicated that defendant repeatedly kicked the
victim in the head and ribs, and both boots contained the victim’s blood soaked into the stitching
and located on the toes of the boots.

        Defense counsel objected to the admission of the two-minute portion of the recording
into evidence on two grounds: (1) defendant had a reasonable expectation of privacy in the
police interview room when he placed the telephone call to his mother, and (2) the recording was
inadmissible under MRE 403 because defendant’s vulgar language directed at the police officer
made defendant “look like a jerk” and the recording was therefore substantially more prejudicial
than probative. Defendant did not object to the admission of the two-minute portion of the
recording based on MRE 404(b). The trial court ruled that defendant had no reasonable
expectation of privacy in a police interview room and that the video evidence was admissible
under MRE 403 because it tended to show defendant’s demeanor and state of mind on the night
of the incident.



                                                -2-
       Later in the trial, when the prosecutor moved to admit the recording into evidence,
defense counsel expressly stated that he had no objection to the admission of the recording into
evidence, provided that it was used for the purposes earlier identified by the trial court. As
defense counsel stated, “No objection, Your Honor, provided for the purpose of that we agreed
upon of (inaudible).” The trial court allowed the prosecutor to play the recording for the jury,
including the two-minute portion to which defense counsel originally objected.

                                          II. ANALYSIS

                             A. INTERVIEW ROOM RECORDING

        Defendant first argues that the trial court erred by admitting into evidence a portion of the
recording of defendant speaking to his mother while at the police station. Defendant contends on
appeal that this evidence constituted inadmissible other-acts evidence under MRE 404(b) that the
prosecutor used to show that defendant had a propensity to commit the charged offense. We
disagree.

        Generally, “[f]or an issue to be preserved for appellate review, it must be raised,
addressed, and decided by the lower court.” People v Metamora Water Serv, Inc, 276 Mich App
376, 382; 741 NW2d 61 (2007). To preserve for appeal the issue of the improper admission of
evidence, “a party generally must object at the time of admission.” People v Knox, 469 Mich
502, 508; 674 NW2d 366 (2004). In this case, defendant objected to the admission of the portion
of the recording on two grounds, neither of which was the admissibility of the recording under
MRE 404(b), as argued here on appeal. “An objection based on one ground at trial is insufficient
to preserve an appellate attack based on a different ground.” People v Stimage, 202 Mich App
28, 30; 507 NW2d 778 (1993). Defendant, therefore, did not preserve for appeal his argument
that the recording constituted inadmissible other-acts evidence under MRE 404(b).

        This Court reviews unpreserved claims of error for plain error affecting defendant’s
substantial rights. See People v Carines, 460 Mich 750, 763, 773-774; 597 NW2d 130 (1999).
To establish plain error affecting his substantial rights, defendant must establish that (1) an error
occurred, (2) the error was plain, and (3) the plain error affected his substantial rights, meaning
that he was prejudiced by the error. Id. at 763. “Reversal is warranted only when the plain,
forfeited error resulted in the conviction of an actually innocent defendant or when an error
seriously affected the fairness, integrity or public reputation of judicial proceedings independent
of the defendant’s innocence.” Id. (cleaned up).

       Furthermore, waiver has been defined as the intentional relinquishment or abandonment
of a known right. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). Waiver differs
from forfeiture, which has been described as the failure to make the timely assertion of a right.
Id. A defendant who waives his rights may not “seek appellate review of a claimed deprivation
of those rights, for his waiver has extinguished any error.” Id. (cleaned up). There are no magic
words that constitute a waiver, and this Court will consider the entire context “concerning a
purportedly waived issue to determine whether the defendant, in fact, intentionally relinquished a
known right.” People v Hershey, 303 Mich App 330, 350; 844 NW2d 127 (2013). Given
defense counsel’s statement in the trial court when the recording was admitted into evidence, we
conclude that defendant waived any argument that the recording was inadmissible under MRE

                                                 -3-
404(b). Defense counsel stated that he had no objection to the admission of the recording, other
than the objections he stated earlier, on which the trial court ruled. The trial court indicated that
the two-minute recording segment was admissible under MRE 403 because it tended to show
defendant’s demeanor and state of mind on the night of the incident. Therefore, by expressly
stating that he had no objection to the evidence except for the arguments he raised earlier,
defendant waived the argument that the recording was inadmissible under MRE 404(b).

        Even if defendant had not waived his argument that the two-minute segment was
inadmissible under MRE 404(b), defendant’s argument on appeal regarding his statements to his
mother is entirely misplaced because those statements are not other-acts evidence subject to
MRE 404(b). Admission of other-acts evidence is controlled by MRE 404(b)(1), which provides
that evidence of “other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith.” The recording contained statements
defendant made. See People v Rushlow, 179 Mich App 172, 176; 445 NW2d 222 (1989)1 (“[A]
prior statement does not constitute a prior bad act coming under MRE 404(b) because it is just
that, a prior statement and not a prior bad act.”), citing People v Goddard, 429 Mich 505, 515;
418 NW2d 881 (1988). “As the statement of a party opponent, the admissibility analysis
involves instead first determining whether the statement was relevant, and second whether its
probative value outweighed its possible prejudicial effect.” Goddard, 429 Mich at 515.
Therefore, we conclude that MRE 404(b) does not apply to that portion of the recording
containing defendant’s expression of vulgar language while conversing with his mother.

       To the extent that defendant also argues on appeal that the recording should have been
excluded under MRE 403, defendant’s position is without merit. The prosecutor offered the
recording because defendant intended to argue that the incident arose from a moment’s heat of
passion that excused his conduct so that the jury could consider the lesser-included offense of
voluntary manslaughter. The prosecutor argued that the evidence had relevancy to counter the
defense and because it depicted defendant’s demeanor.

        The recording depicted defendant using vulgar language but it did not suggest that
defendant had a character, demeanor, or propensity to commit second-degree murder. The
evidence was relevant to the incident because defendant admitted that the incident “was a road
rage thing.” Defendant’s remark constituted a statement against interest. The recording also
depicted defendant expressing concern about the evidence the police gathered from his home
pursuant to a search warrant. The evidence had relevancy to the determination of defendant’s
guilt and had high probative value. Defendant’s periodic vulgar outbursts cannot be said to have
engendered bias or prejudice against defendant. It is doubtful that reasonable jurors viewing the
video footage would conclude that defendant’s vulgar statements meant that he had a propensity
to commit second-degree murder.

       The record reflects that the trial court recognized that the evidence had relevance to the
case and it appropriately examined the question and determined that the evidence had probative


1
  Criticized on other grounds by People v Mayfield, 182 Mich App 282, 284; 451 NW2d 583
(1990), rev’d 437 Mich 1060 (1991).


                                                -4-
value that outweighed any alleged prejudice. Although the evidence certainly was prejudicial to
defendant because it presented his statements against his interest, we hold that the trial court
correctly concluded that the highly probative value of the evidence outweighed the potential for
prejudice. The evidence did not confuse the issues or mislead the jury. The trial court, therefore,
did not abuse its discretion by admitting the evidence. Reversal on this claimed error is not
warranted.

                                 B. CHARACTER EVIDENCE

        Defendant also argues that the trial court erred because it admitted improper character
evidence when defendant’s friend testified that on the night of the incident the two of them were
out spray-painting bridges. We disagree.

        Defendant did not object to the admission of this evidence. Therefore, defendant did not
preserve this issue for appeal. Consequently, we review this claim of error for plain error
affecting defendant’s substantial rights. See Carines, 460 Mich at 763.

        The record reflects that, at trial, the prosecutor asked defendant’s friend what his and
defendant’s plan was on the night of the incident when they left defendant’s house. Defendant’s
friend stated that they went out to spray-paint bridges. The prosecutor went on without further
inquiry into the matter. The prosecutor did not use the statement for any purpose other than to
describe the preliminary events leading up to the incident. The record does not reflect that the
prosecutor sought to elicit the testimony to establish defendant’s character or propensity to
commit second-degree murder.

         Further, defense counsel made no objection regarding the statement, did not request that
the remark be stricken, and did not ask for a curative instruction by the trial court. Instead,
defense counsel let it pass without drawing further attention to the matter, likely as a matter of
sound trial strategy. The trial court did not intercede and it did not have any reason for doing so.
On appeal, defendant offers no proof that the statement actually prejudiced his case. He merely
speculates that it did. This evidence was not remotely prejudicial to defendant, and we hold that
the trial court did not commit plain error in this regard.

                       C. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant also argues that defense counsel provided him ineffective assistance of
counsel, in two respects. Defendant argues that his trial counsel was ineffective when he failed
to object to the testimony about spray painting and when he failed to object to the prosecutor’s
comments during jury selection. We conclude that defendant’s arguments lack merit.

        On appeal, defendant bears the burden of establishing that defense counsel provided
ineffective assistance by showing that “(1) counsel’s performance fell below an objective
standard of reasonableness and (2) but for counsel’s deficient performance, there is a reasonable
probability that the outcome would have been different.” People v Trakhtenberg, 493 Mich 38,
51; 826 NW2d 136 (2012). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001)
(cleaned up). Effective assistance of counsel is presumed, and the defendant bears a heavy
burden of proving otherwise. People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009).
                                                -5-
Further, defendant “has the burden of establishing the factual predicate for his claim of
ineffective assistance of counsel.” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
Defense counsel cannot be said to have rendered ineffective assistance by failing to raise
meritless or futile objections. People v Putman, 309 Mich App 240, 245; 870 NW2d 593 (2015).

                                   1. WITNESS TESTIMONY

       Defendant argues that his defense counsel rendered ineffective assistance of counsel by
not objecting to the testimony of defendant’s friend about spray painting.

         The record indicates that defense counsel knew the background of this testimony because
the witness testified at defendant’s preliminary examination that he and defendant went to spray-
paint bridges. Had defense counsel felt the matter had bearing on his client’s case, defendant
could have filed a motion in limine before trial to exclude the evidence or objected to the matter
at trial. Defense counsel, however, made a strategic decision not to do so. Further, the record
reflects that defense counsel decided not to make an issue of the brief statements at trial. As
noted above, such a strategic decision seems fitting because the testimony had no real import
regarding whether and why defendant engaged in the altercation with the victim, nor did the
testimony suggest anything more than relatively minor teenage antics. Defense counsel’s
performance did not fall below an objective standard of reasonableness by not objecting to this
testimony. See Trakhtenberg, 493 Mich at 51.

                                      2. JURY SELECTION

        Defendant next argues that defense counsel rendered ineffective assistance by not
objecting when the trial court and the prosecutor made statements during jury selection regarding
the burden the prosecutor bore under the “beyond a reasonable doubt” standard of proof.
Defendant claims that their remarks incorrectly defined the applicable standard of proof. We
disagree.

       In People v Allen, 466 Mich 86, 90; 643 NW2d 227 (2002), the Michigan Supreme Court
explained:

               The right to a jury trial in a criminal felony prosecution is fundamental.
       The fundamental nature of the right to a jury trial is reflected in both the federal
       and state constitutions. Interrelated with the right to a jury trial is the requirement
       that the prosecutor prove guilt beyond a reasonable doubt. The requirement of
       burden of proof beyond a reasonable doubt is important because it ensures a
       reliable determination of guilt. . . . [An] erroneous definition of reasonable doubt
       was held to constitute a “structural” error in the trial. A structural error
       necessarily renders unfair or unreliable the determination of guilt or innocence
       and defies harmless error analysis. An erroneous definition of reasonable doubt
       in a jury instruction violates the jury trial guarantee. A decision rendered on the
       basis of an erroneous definition of proof beyond a reasonable doubt is not a true
       “verdict” within the meaning of the constitutional guarantee of a jury trial.
       [Citations omitted.]



                                                -6-
        “The stringency of the beyond a reasonable doubt standard bespeaks the weight and
gravity of the private interest affected, society’s interest in avoiding erroneous convictions, and a
judgment that those interests together require that society impose almost the entire risk of error
upon itself.” Santosky v Kramer, 455 US 745, 755; 102 S Ct 1388; 71 L Ed 2d 599 (1982)
(cleaned up). The United States Supreme Court has explained that because the application of the
“beyond a reasonable doubt” standard requires a fact-finder to “reach a subjective state of near
certitude of the guilt of the accused, the standard symbolizes the significance that our society
attached to the criminal sanction and thus to liberty itself.” Jackson v Virginia, 443 US 307, 315;
99 S Ct 2781; 61 L Ed 2d 560 (1979) (citation omitted).

        In this case, the trial court and the prosecutor made statements during jury selection
regarding the “beyond a reasonable doubt” standard of proof. The trial court and the prosecutor
explained that the standard did not require proof to the jurors’ 100% certainty. The record
reflects that defense counsel did not object and indicated agreement with the statements so long
as jurors understood that they had to follow the trial court’s instructions regarding the law and
the burden of proof.

       Although the “beyond a reasonable doubt” standard is a high standard of proof, courts
have not held that the prosecutor must prove the elements of the charged offense so that jurors
have 100% certainty. This Court has explained that the “beyond a reasonable doubt” standard
does not require the prosecution to prove facts with 100% certainty. See People v Bowman, 254
Mich App 142, 149-151; 656 NW2d 835 (2002), citing Victor v Nebraska, 511 US 1, 26-27; 114
S Ct 1239; 127 L Ed 2d 583 (1994) (GINSBURG, J., concurring).

        Thus, the trial court did not err by stating that proof beyond a reasonable doubt did not
require prospective jurors to have 100% certainty to render their verdict. Moreover, the record
reflects that the trial court instructed prospective jurors that defendant had the presumption of
innocence throughout his trial and that the prosecutor bore the burden of proving each element of
the charged offense beyond a reasonable doubt. The prosecutor’s statements that it did not have
to prove the elements so that the jury had 100% certainty were not improper. Because the trial
court’s statements and the prosecutor’s statements were not incorrect, defense counsel had no
obligation to make a futile objection. See Putman, 309 Mich App 245. Therefore, defense
counsel’s performance did not fall below an objective standard of reasonableness by not
objecting to the trial court’s and the prosecutor’s remarks during jury selection. See
Trakhtenberg, 493 Mich at 51. Defense counsel, therefore, did not provide defendant ineffective
assistance.

                                   D. CUMULATIVE ERROR

        Defendant also asserts that cumulative errors require reversal of his conviction.
Defendant has failed to establish that any errors occurred at his trial. Because defendant has not
established that any errors occurred, there can be no cumulative effect of errors that would merit
reversal. See People v Mayhew, 236 Mich App 112, 128; 600 NW2d 370 (1999).




                                                -7-
Affirmed.



                  /s/ Jane E. Markey
                  /s/ Michael J. Kelly
                  /s/ Brock A. Swartzle




            -8-
