            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    March 21, 2019
               Plaintiff-Appellee,

v                                                                   Nos. 340501; 340520
                                                                    Macomb Circuit Court
CHRISTOPHER WILLIS,                                                 LC Nos. 2017-000455-FH;
                                                                            2016-004579-FH

               Defendant-Appellant.


Before: TUKEL, P.J., and SHAPIRO and GADOLA, JJ.

PER CURIAM.

        In Docket No. 340501, defendant appeals as of right his jury trial conviction of larceny of
a firearm, MCL 750.357b. In Docket No. 340520, defendant appeals as of right his jury trial
conviction of receiving and concealing a stolen firearm, MCL 750.535b(2). We affirm.

                                       I. BACKGROUND

        This case arises from defendant’s taking of a gun. Although defendant purchased the
gun, he gave it to his girlfriend, Robyn Cherry, as a gift. At the time of purchase, the paperwork
for the gun was filled out with Cherry’s name; the gun was later registered with the police under
Cherry’s name as well. After defendant moved out of Cherry’s apartment, Cherry noticed that
the gun was missing and notified the police of the stolen firearm. Over a month later, Clinton
Township Police Officer David Wheeler received a dispatch call regarding a potential domestic
violence incident at the home of Veronica Isby, the mother of defendant’s son. Upon arriving at
Isby’s apartment, Officer Wheeler heard “yelling and screaming.” After entering the building,
Officer Wheeler saw Isby walking in the common hallway and saw “items being thrown.”
Officer Wheeler found the reported stolen firearm in defendant’s backpack, and after
determining that there was an arrest warrant for defendant relating to the gun, arrested him and
seized the weapon.

        Defendant thereafter was charged with domestic violence, larceny of a firearm, and
receiving and concealing a stolen firearm. However, the domestic violence charge was
dismissed at the preliminary examination, prior to the trial on the remaining offenses. After a


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trial, defendant was convicted of larceny of a firearm and receiving and concealing a stolen
firearm. Additional facts necessary for a full discussion of the issues are set forth below.

                                         II. ANALYSIS

        Defendant argues that the trial court erred in allowing the prosecution to introduce the
testimony of Officer Wheeler regarding defendant’s domestic dispute with Isby because his
testimony constituted improper character evidence under MRE 404(b). We hold that if the
introduction of such evidence was erroneous, defendant is not entitled to a new trial because he
has not shown how the evidence’s admission was outcome determinative.

        To preserve a claim of evidentiary error, “a party opposing the admission of evidence
must object at trial and specify the same ground for objection that it asserts on appeal.” People v
Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001), citing MRE 103(a)(1). However,
determining the proper standard of review in this case is not so straightforward and requires a
rather lengthy discussion of the procedural history of the case.

       Prior to trial, the prosecution provided notice of intent to introduce other acts of domestic
violence. The notice encompassed admissibility on the bases of both MCL 768.27b and MRE
404(b). The notice stated:

       The above incidents should be allowed into evidence for numerous reasons. The
       statute was enacted to create an exception to the general rule that evidence of past
       crimes may not be used to prove the character of a person in order to show action
       in conformity therewith. This incident shows the character of the defendant: that
       he continually preys on a person with whom he has had a domestic relationship (a
       child in common) through physical and emotional abuse and threats.
       Additionally, these incidences are extremely relevant to allow the jury to assess
       the probability or improbability that the defendant has been falsely accused of the
       offense. Moreover, these incidences are exceptionally probative on the issue of
       the complaining witness’s credibility.

       The prior acts of domestic violence is [sic] extremely probative of the
       Defendant’s Act of Domestic Violence, his propensity to physically abuse a
       person with whom he has had a domestic relationship (a child in common), the
       victim’s credibility, and also in assessing the improbability that the defendant has
       been falsely accused of this offense.

        Following the filing of the notice, defendant moved in limine to prevent the introduction
of previous acts evidence. However, the precise contours of the relief defendant sought are
unclear. The motion did not specify a particular rule or statute as authority, but in the text asked
the trial court to preclude the introduction of prior domestic violence misdemeanor convictions.
In the prayer for relief, however, the defendant asked the court “to prevent the introduction of
prior domestic violence acts.” (Emphasis added.)

       At a hearing held about two weeks before trial, defense counsel stated, “I have spoken
with the prosecutor, and the prosecutor has conceded that my motion would be granted anyway,
so she is withdrawing her notice to, on the 402(b) [sic – should be 404(b)] notification.” The
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prosecutor stated, “Yes, I’ll be honest, I kind of messed up. . . . [O]n the file it says domestic
violence and R&C stolen weapon, and that domestic violence was dismissed at district . . . . And
all I did was look at the file and just routinely did it. . . . So that’s my fault, and I shouldn’t have
filed it, I thought it [the domestic violence charge] was still existing, so I won't be able to bring
up prior domestic violence on those two files.” The trial judge stated, “Okay. Very well. Based
on -- well, your motion is granted. . . . It sounds like [the prosecutor] is withdrawing her notice
regarding this.” The prosecutor then stated, “Yes, I am withdrawing. Thank you.”

       At trial, the prosecution called as a witness Officer Wheeler, one of the officers who
responded to the domestic violence call which resulted in the seizure of the firearm. The
prosecutor asked questions relating to the nature of the call and to domestic violence in general:

        Q.      And did at some point did you receive a dispatch call to [the residence at
        issue] in Clinton Township, Michigan?

        A.      Yes, I did.

        Q.      What was the nature of the call?

        A.      Domestic violence incident.

        Q.      What did you do?

        A.      I responded to the scene.

                                                * * *

        Q.      So you say you were responding to a domestic?

        A.      Yes.

        Q.      Why are more than one cars called to a scene like that?

        A.      Potential for violence.

                                                * * *

        Q.     You indicated the dispatch ended, indicated it was a domestic. Was there
        anything else indicated?

        A.    That it was a domestic incident, that there was a previous history of
        domestic incidents.

        Q.      And anything you should be concerned of?

        A.      Yes, that it was a previous incidents of –

        Q.      Anything concerned of immediate for that day?


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       A.      There may be weapons involved.

       Q.      Okay.

       A.      Potentially.

       Q.      Could you see anything or just hear?

       A.     As we walked up we could hear it, but then we kept approaching and as
       we entered that foyer or the common hallway we could see what was going on.

       Q.      What did you observe?

       A.      There was a female that was walking into the hallway and there was items
       being thrown.

There is no doubt that this portion of Officer Wheeler’s testimony was evidence of other “crimes,
wrongs, or acts,” MRE 404(b)(1); defendant was charged with two firearms offenses, and Officer
Wheeler’s testimony related only to allegations regarding domestic violence, with which
defendant was not charged.

        Defense counsel did not object to the testimony, and the trial court made no reference to
its earlier grant of defendant’s motion, or to the prosecutor’s concession that she was
withdrawing her notice of intent under MRE 404(b). Rule 404(b) requires, as a prerequisite to
admissibility under it, that “[t]he prosecution in a criminal case shall provide written notice at
least 14 days in advance of trial, or orally on the record later 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.”
MRE 404(b)(2). Thus, in addition to the prosecutor’s oral statement at the hearing that she
would not be offering such evidence, her withdrawal of the notice precluded the introduction of
evidence under MRE 404(b).

        We are troubled by the prosecution’s introduction of such evidence, after the withdrawal
of its notice, without flagging the issue for the trial court prior to calling Officer Wheeler as a
witness. However, the issue is not entirely clear-cut because defendant’s motion was ambiguous
as to whether it sought to preclude only the introduction of domestic violence convictions, as
Officer Wheeler’s testimony did not involve any such convictions, or simply evidence of
domestic violence. It is possible that the prosecutor thought such evidence had not been
encompassed by the withdrawal of the notice, precisely because Officer Wheeler was not being
asked about convictions. We do note, however, that the notice also made reference to evidence
which did not relate to convictions, and thus the withdrawal of the notice may have encompassed
that evidence as well.

       The prosecutor would be well advised in the future to resolve such ambiguities by
bringing them to the attention of the trial court for clarification; we take this opportunity to
remind all counsel of the responsibility to bring to the trial court’s attention previous rulings
which may be implicated by issues which arise during a trial.


                                                -4-
        If we were to find that the prosecutor had violated an express agreement not to offer such
evidence at all, we might well overlook defendant’s failure to object at the time of Officer
Wheeler’s testimony, particularly since by withdrawing the notice the prosecutor under such
circumstances would have broken an enforceable promise, see MCR 2.507(G), in addition to her
having removed a necessary prerequisite to the admission of such evidence. Here, however,
defendant also bears some of the blame for the ambiguity of the effect of the agreement and
withdrawal of the notice. Defendant’s motion was self-contradictory as to whether it sought to
bar all evidence regarding domestic incidents or only those resulting in convictions. At the time
of Officer Wheeler’s testimony, defense counsel failed to object or to argue to the trial court that
such evidence had previously been ruled inadmissible by concession of the prosecutor. Thus,
under the circumstances presented here, we find that because defense counsel did not object or
otherwise draw the trial court’s attention to the previous ruling and the prosecutor’s agreement,
our review must be for plain error affecting substantial rights. See MRE 103(a); People v
Lechleitner, 291 Mich App 56, 59; 804 NW2d 345 (2010).

        To avoid forfeiture under the plain error rule a defendant must prove the following: “1)
error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error
affected substantial rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). An
error that affected substantial rights is one which affected the outcome of the lower court
proceedings. Id.

        Evidence concerning a defendant’s character is inadmissible when offered to prove action
in conformity with that character trait. MRE 404(a); People v Bynum, 496 Mich 610, 624-625;
852 NW2d 570 (2014). However, evidence of other crimes, wrongs, or acts may be admissible
“for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or
system in doing an act, knowledge, identity, or absence of mistake or accident when the same is
material . . . .” MRE 404(b)(1). This list of permissible uses is not exhaustive. People v Sabin
(After Remand), 463 Mich 43, 56; 614 NW2d 888 (2000). To be admissible under MRE 404(b),
other-acts evidence (1) must be offered for a proper purpose, (2) must be relevant under MRE
401, and (3) must not have its probative value substantially outweighed by its potential for unfair
prejudice under MRE 403. People v VanderVliet, 444 Mich 52, 55, 60-61; 508 NW2d 114
(1993), amended by 445 Mich 1205 (1994). If the other-acts evidence is admitted, the “trial
court, upon request, may provide a limiting instruction” to the jury to lessen the risk of prejudice.
Id. at 75.

       Regarding the first requirement, “[a] proper purpose . . . is one that seeks to accomplish
something other than the establishment of a defendant’s character and his propensity to commit
the offense.” People v Johnigan, 265 Mich App 463, 465; 696 NW2d 724 (2005).
Consequently, evidence is inadmissible under MRE 404 “if it is relevant solely to the
defendant’s character or criminal propensity.” People v Mardlin, 487 Mich 609, 616; 790 NW2d
607 (2010).

        And relevant evidence under the second requirement is “evidence that is material (related
to any fact that is of consequence to the action) and has probative force (any tendency to make
the existence of a fact of consequence more or less probable than it would be without the
evidence).” Sabin, 463 Mich at 57. However, materiality “does not mean that the evidence must
be directed at an element of a crime or an applicable defense.” People v Mills, 450 Mich 61, 67-

                                                -5-
68; 537 NW2d 909 (1995), mod 450 Mich 1212 (1995). Instead, “[a] material fact is one that is
‘in issue’ in the sense that it is within the range of litigated matters in controversy.” Sabin, 463
Mich at 57 (citation and some quotation marks omitted).

       When balancing the probative value of evidence of prior bad acts against the danger of
unfair prejudice from the evidence under MRE 403, “[e]vidence is unfairly prejudicial when
there exists a danger that marginally probative evidence will be given undue or preemptive
weight by the jury.” People v Bass, 317 Mich App 241, 259; 893 NW2d 140 (2016) (quotation
marks and citation omitted).

       We need not decide whether or not the trial court plainly erred in not sua sponte
disallowing Officer Wheeler’s testimony because we find that even if the introduction of such
testimony was plainly erroneous, defendant has failed to establish that if it had not been
admitted, the outcome of the trial would have been different.1

        The central issue at trial was whether defendant or Cherry was more credible on the issue
of why the firearm had been registered in her name. Cherry testified that defendant bought the
gun for her as a gift and that she registered the gun in her name because it belonged to her.
Defendant, on the other hand, testified that he bought the firearm for himself. Notably,
defendant provided a highly confusing reason as to why Cherry put the gun in her name. He
stated,

       [I]t’s what she wanted to do because as she say, we was together, I was her man,
       and that’s something that she wanted to do to basically try to still keep me with
       her despite the fact that somebody just a month later [sic—earlier] broke into my
       car and stole my radio, this was her way of trying to keep me with her. . . . [T]o
       try to please me.

The prosecutor asked for clarification of how Cherry keeping the gun in her own name would
somehow “please” defendant, and defendant responded,




1
  The dissent fails to appreciate the significance of the issue not being preserved. Under a plain-
error analysis, “[i]t is the defendant rather than the Government who bears the burden of
persuasion with respect to prejudice.” Carines, 460 Mich at 763 (quotation marks and citation
omitted). The dissent’s citation to People v Young, 472 Mich 130, 141-142; 693 NW2d 801
(2005), and People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010), is misplaced because
they address preserved issues. See Feezel, 486 Mich at 192; Young, 472 Mich at 141-142.
Indeed, Young further cautions that “all unpreserved claims of error” are to be reviewed for plain
error affecting substantial rights and that “[a]n appellate court must follow the Grant/Carines
plain-error analysis.” Young, 472 Mich at 143. As we describe, infra, under the circumstances
presented here, defendant simply failed to carry his “burden of persuasion with respect to
prejudice.”


                                                -6-
       [S]he thought because of the fact to where, well, they broke into my man’s car, I,
       I will do this for him as a way of, I will say, trying to pacify me, basically try to
       keep me with her.

        We find that the questions posed to Officer Wheeler and his responses were unlikely to
have caused the jury to resolve the credibility determination one way or the other. Although the
prosecutor sought to insinuate, improperly in our opinion, that Officer Wheeler and other
responding officers were endangered by defendant, we find that testimony not overly prejudicial
in light of the fact that Officer Wheeler seized a firearm from defendant’s actual or constructive
possession, evidence which was properly before the jury. Further, Officer Wheeler never
described witnessing any violent or assaultive behavior on defendant’s behalf. Instead, he stated
that when he was walking up to Isby’s apartment building, he heard “yelling and screaming
going on.” And after entering the common hallway, he saw Isby “walking into the hallway and
there was [sic] items being thrown.” Notably, Officer Wheeler never clarified whom he saw
throwing the items, and he only identified Isby as the one “yelling.” Indeed, in relaying what he
saw, Officer Wheeler merely described defendant as “standing” near an open door. Therefore,
the jury simply was presented with vague testimony that defendant had been involved in prior
domestic “incidents,” and there was no evidence that defendant actually had engaged in any
assaultive behavior at the time Officer Wheeler responded to the dispatch call. Thus, it is far
from clear that this testimony would have somehow influenced the jury to convict when it
otherwise would not have.2 In addition, the prosecution did not argue to the jury that it should
consider such evidence in weighing defendant’s and Cherry’s credibility. The prosecutor
mentioned the testimony about a “domestic” call to the police only once in closing argument, and
then only to explain what led Officer Wheeler to seize the firearm, which was entirely proper;
the prosecutor did not mention Officer Wheeler’s testimony in that regard at all in rebuttal.
Under these circumstances, and given defendant’s own explanation for Cherry’s purported
reasons for titling the firearm in her own name, which was confusing at best and implausible at
worst, we decline to reverse defendant’s conviction on the basis of this evidence.

       Ultimately, the issue as to who owned the gun boiled down to whether the jury believed
Cherry or defendant—a question of fact reserved for the jury. People v Harrison, 283 Mich App
374, 378; 768 NW2d 98 (2009). And here, the jury found Cherry credible. Simply put,
defendant has failed to show how defendant’s past instances of domestic “incidents” influenced




2
  While the dissent claims that five pages of transcripts were dedicated to the prosecution cross-
examining defendant regarding “the events at the domestic incident,” we think this is a
mischaracterization. The questioning undoubtedly was related to what happened at Isby’s house,
but the prosecutor did not describe it as a “domestic incident”—it was defendant who said that
the police had assumed there was a “domestic” incident. Moreover, nothing introduced during
this cross-examination went to other-acts evidence, let alone instances of domestic violence,
because defendant did not admit to any such conduct. At worst, defendant admitted that he and
Isby had been “debat[ing]” before the police arrived. As such, we fail to see the significance of
this testimony, when the challenged testimony before us was that of Officer Wheeler.


                                                -7-
the jury’s ability to determine credibility. Therefore, defendant cannot establish that any plain
error, if it existed, affected his substantial rights.

       Affirmed.

                                                           /s/ Jonathan Tukel
                                                           /s/ Michael F. Gadola




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