            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED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 19, 2019
               Plaintiff-Appellee,

v                                                                    No. 340697
                                                                     Kent Circuit Court
RAUL PEREZ,                                                          LC No. 16-011206-FC

               Defendant-Appellant.


Before: RIORDAN, P.J., and MARKEY and LETICA, JJ.


PER CURIAM.

        Defendant, Raul Perez, appeals by right his jury conviction for first-degree murder, MCL
750.316(1)(a). The trial court sentenced Perez to life imprisonment without the possibility of
parole. On appeal, Perez argues (1) that the trial court abused its discretion by allowing the
prosecution to present evidence that Perez had given a false name to the police when he had been
arrested for operating while intoxicated; (2) that insufficient evidence supported his jury
conviction for first-degree murder; and (3) that the trial court plainly erred by admitting evidence
of Perez’s custodial interview. We find no merit in these contentions and affirm Perez’s
conviction and sentence.

                                 I. FACTUAL BACKGROUND

        On October 25, 2016, Perez’s daughter, Kimberly, arrived home from work sometime
before 11:00 p.m. About 20 minutes later, Perez arrived intoxicated at Kimberly’s apartment
and asked her for a ride. While Kimberly prepared to leave, Perez began talking about “weird
stuff,” and said that if Kimberly “didn’t see him the next day, he would be okay, not to worry
about him.” When Kimberly questioned Perez about what he meant, Perez said he was “going to
go away and then take some people with him.” He specifically mentioned Karla Magana, the




                                                -1-
woman who he “was currently with.”1 Kimberly testified that she did not take Perez’s comments
seriously because he was drunk and was “just talking nonsense.”

       Kimberly explained to the jury that Perez tried to call someone but that person would not
answer. When they were getting ready to leave, Perez’s phone rang and he answered it.
Kimberly heard him say, “[H]ey, can I see you[?]” and “[M]y daughter will take me. I’ll be
fine.” When they were on the road, Perez called someone again—Kimberly believed it was
Magana, the same person as before. Perez said, “I’m almost there,” “Come outside,” and “I love
you.” They arrived at Magana’s house, and Magana got into Kimberly’s car. Perez asked
Kimberly to drive them back to the apartment complex where both Perez and Kimberly lived in
separate apartments. During the ride back, Perez and Magana were holding hands and kissing.

        At around 4:00 or 5:00 a.m., Perez called Kimberly and said, “I just wanted to tell you I
love you, and I’m sorry for not being there for you.” Kimberly asked Perez what he was talking
about and whether he was still drinking. Perez said, “I’m being serious, I love you, and just
saying sorry for everything.” Perez then told Kimberly that he “did something really bad,” and
indicated that “he had killed the lady.” Kimberly assumed that Perez was still drunk and that he
and Magana must have argued. Perez said, “[J]ust know that I love you,” and ended the phone
call. After seeing her father’s suitcase in the hallway later that morning, Kimberly called the
police. Kimberly let the police into Perez’s apartment with her spare key, and Magana’s body
was discovered in the bathroom. Perez was passed out on his bed.

        A neighbor who lived in the apartment above Perez’s unit testified that around 1:15 a.m.
she heard “[a] lot of screaming, banging, glass breaking, and thumping.” She remembered
hearing both a male and a female voice, primarily speaking in Spanish. Although the neighbor
did not speak Spanish and could not understand everything she heard, it sounded as if the woman
was being hurt. The witness recalled that the female voice, speaking in English, screamed,
“[W]hy are you doing this to me[?]” The commotion “slowed down for a little while” at about
2:00 a.m., but then “picked back up again.” She said that there was “maybe about 15, 20
minutes of quiet” during the whole episode, which continued until approximately 3:00 or 3:30
a.m.

        A forensic pathologist explained that Magana suffered multiple severe injuries and had
been manually strangled to death. He described several blunt-force injuries to her face as well as
several sharp-force injuries, including to her nose and right hand. Magana had defensive-type
wounds on her hands. The pathologist explained that manual strangulation requires “a
significant amount of force being applied for several minutes[.]” In his opinion, Magana would
have passed out after approximately 20 seconds but may have regained consciousness if that
force released and blood flow returned. He estimated that it would probably take five minutes or
longer for death to occur from manual strangulation.




1
    Perez also named two former lovers, neither of whom he maintained contact with.


                                                -2-
        A detective interviewed Perez shortly after his arrest. Perez confessed to killing Magana
using his hands and explained that he was jealous because she wanted to leave him for another
man. Perez also admitted that Magana was aware that he had recently been arrested and released
after giving the police a false name. Perez referred to this as a “problem” because he feared that
she would go to the police and expose his deceit. In Perez’s own words, Magana intended to end
her relationship with Perez and threatened, “[I]f you don’t leave me alone, I’m going to the
police and tell who you really are.”

                        II. MRE 404(B)(1) OTHER-ACTS EVIDENCE

       Perez first argues that the trial court abused its discretion by allowing the prosecution to
present evidence under MRE 404(b)(1) that Perez was arrested for operating while intoxicated
and that he gave a false name to police to secure his release. This Court reviews the trial court’s
evidentiary decisions for an abuse of discretion. People v Danto, 294 Mich App 596, 598-599;
822 NW2d 600 (2011). “A trial court abuses its discretion when its decision falls outside the
range of principled outcomes.” Id. at 599.

       MRE 404(b)(1) provides:

               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. It may,
       however, 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, whether such other
       crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
       conduct at issue in the case.

       In order for evidence to be admissible under MRE 404(b)(1), “(1) the evidence must be
offered for a proper purpose; (2) the evidence must be relevant; and (3) the probative value of the
evidence must not be substantially outweighed by [the danger of] unfair prejudice.” Danto, 294
Mich App at 599 (quotation marks and citation omitted; alteration in original). This Court has
described MRE 404(b)(1) as an inclusionary rule “because it provides a nonexhaustive list of
reasons to properly admit evidence that may nonetheless also give rise to an inference about the
defendant’s character.” People v Mardlin, 487 Mich 609, 616; 790 NW2d 607 (2010).
“Evidence is inadmissible under this rule only if it is relevant solely to the defendant’s character
or criminal propensity.” Id. at 615-616. Furthermore,

       [a]ll relevant evidence is prejudicial; only unfairly prejudicial evidence may be
       excluded. People v McGhee, 268 Mich App 600, 613-614; 709 NW2d 595
       (2005). “Unfair prejudice exists when there is a tendency that evidence with little
       probative value will be given too much weight by the jury.” Id. at 614. Unfair
       prejudice may arise where considerations extraneous to the merits of the case,
       such as jury bias, sympathy, anger, or shock, are injected. Id. [Danto, 294 Mich
       App at 600.]

“Proof of motive in a prosecution for murder, although not essential, is always relevant and
evidence of other acts to prove motive is admissible under MRE 404(b)(1).” People v Rice (On

                                                -3-
Remand), 235 Mich App 429, 440; 597 NW2d 843 (1999) (citation omitted). The determination
turns on whether “logical relevance is shown,” i.e., “the existence of some intermediate fact,
bridging the gap between that act and the charged act.” Id.

        Perez argues that there was “a firestorm of publicity” related to his case, making
headlines across the country, because Perez killed Magana only a few days after the police
arrested him for driving while intoxicated and released him under a false name. He brings to the
Court’s attention several news articles concerning the crime, including one that relates how then-
candidate Donald Trump cited this particular case during his presidential campaign. Perez
argues that his arrest was of marginal relevance to Magana’s death and was substantially
prejudicial given the “outrage” about “an illegal alien [being] let loose after drinking and driving,
lying to the police about his identity and then killing a person.”

        We disagree. During his custodial interview,2 Perez made several highly incriminating
statements necessarily implicating the previous arrest. Perez admitted that Magana knew of the
arrest and his subsequent release under a false name, which was a “problem.” Perez himself
linked the fact that Magana was leaving him for another man with her threat to expose his deceit
to the police. In Perez’s own words, Magana threatened Perez, stating, “[I]f you don’t leave me
alone, I’m going to the police and tell who you really are.” Perez said that this threat made him
feel “mad.”

        The prosecution offered this evidence for a proper purpose. Contrary to Perez’s
argument, his direct admissions concerning the underlying cause of the fight that ultimately led
to Magana’s death was highly probative evidence supporting a finding of premeditation and
deliberation because it established a motive for Perez’s actions. To the extent that this evidence
had some tendency towards impugning Perez’s character, Mardlin instructs that such evidence is
inadmissible “only if it is relevant solely to the defendant’s character or criminal propensity.”
Mardlin, 487 Mich at 616. In this case, the evidence supported the prosecution’s theory, and
motive for a homicide is always relevant. Rice (On Remand), 235 Mich App at 440.

        Nor was this evidence unfairly prejudicial. Although this case generated national
attention during the throes of the 2016 presidential election campaign, that attention alone was
not a reason to exclude such highly probative evidence about Perez’s motive for killing Magana.
The prosecution did not reference Perez’s undocumented status or any statements made by
presidential candidates or their surrogates and, instead, focused solely on Perez’s own
explanation for why he was “mad” and, resultantly, killed Magana. Moreover, the trial court
properly provided a limiting instruction intended to alleviate any danger of unfair prejudice. We
presume that the jury followed this instruction. People v Roscoe, 303 Mich App 633, 646; 846
NW2d 402 (2014).




2
 The jury watched a redacted version of the custodial interview video and reviewed a transcript
of the interrogation.


                                                -4-
                            III. SUFFICIENCY OF THE EVIDENCE

       Next, Perez argues that the prosecution presented insufficient evidence to support his
conviction. Again, we disagree.

               “In determining whether sufficient evidence exists to sustain a conviction,
       this Court reviews the evidence in the light most favorable to the prosecution, and
       considers whether there was sufficient evidence to justify a rational trier of fact in
       finding guilt beyond a reasonable doubt.” But more importantly, “[t]he standard
       of review is deferential: a reviewing court is required to draw all reasonable
       inferences and make credibility choices in support of the jury verdict. The scope
       of review is the same whether the evidence is direct or circumstantial.
       Circumstantial evidence and reasonable inferences arising from that evidence can
       constitute satisfactory proof of the elements of a crime.” “It is for the trier of fact,
       not the appellate court, to determine what inferences may be fairly drawn from
       the evidence and to determine the weight to be accorded those inferences.”
       [People v Oros, 502 Mich 229, 239; 917 NW2d 559 (2018) (citations omitted;
       alteration in original).]

         “In pertinent part, to secure a conviction of first-degree premeditated murder, the
prosecution must establish beyond a reasonable doubt a ‘[m]urder perpetrated by means of
poison, lying in wait, or any other willful, deliberate, and premeditated killing.’ ” Id. at 239-240
(alteration in original), quoting MCL 750.316(1)(a). “The elements of first-degree murder are
(1) the intentional killing of a human (2) with premeditation and deliberation.” People v Bennett,
290 Mich App 465, 472; 802 NW2d 627 (2010). As explained recently by our Supreme Court,
the prosecution can prove first-degree murder with evidence that the defendant had an
opportunity for a “second look” before killing the victim:

               Premeditation and deliberation may be established by an interval of time
       between the initial homicidal thought and ultimate action, which would allow a
       reasonable person time to subject the nature of his or her action to a “second
       look.” People v Gonzalez, 468 Mich 636, 641; 664 NW2d 159 (2003); People v
       Tilley, 405 Mich 38, 45; 273 NW2d 471 (1979). That is, “some time span
       between the initial homicidal intent and ultimate action is necessary to establish
       premeditation and deliberation,” but it is within the province of the fact-finder to
       determine whether there was sufficient time for a reasonable person to subject his
       or her action to a second look. See Gonzalez, 468 Mich at 641 (quotation marks,
       brackets, and citation omitted). “While the minimum time necessary to exercise
       this process is incapable of exact determination,” Tilley, 405 Mich at 45
       (quotation marks and citation omitted), “[i]t is often said that premeditation and
       deliberation require only a ‘brief moment of thought’ or a ‘matter of seconds,’ ” 2
       LaFave, Substantive Criminal Law (3d ed), § 14.7(a), p 650 (citations omitted).
       “By the weight of authority the deliberation essential to establish murder in the
       first degree need not have existed for any particular length of time before the
       killing.” 4 Blackstone, Commentaries on the Laws of England, p *195 n 14. “The
       time within which a wicked purpose is formed is immaterial, provided it is formed
       without disturbing excitement. The question of deliberation, when all the

                                                 -5-
       circumstances appear, is one of plain common sense; and an intelligent jury can
       seldom be at a loss to determine it.” People v Holmes, 111 Mich 364, 372; 69
       NW 501 (1896) (quotation marks and citation omitted).

               “The requisite state of mind may be inferred from defendant’s conduct
       judged in light of the circumstances.” [People v] Hoffmeister, 394 Mich [155,]
       159[; 229 NW2d 305 (1975)]. In other words, what constitutes sufficient
       evidence to support the elements of premeditation and deliberation may vary from
       case to case because the factual circumstances will vary, but the ultimate answer
       may be resolved in determining whether reasonable inferences may be made to
       support the fact-finder’s verdict. For example, in People v Johnson, 460 Mich
       720, 733; 597 NW2d 73 (1999), this Court held that evidence of a struggle
       between the defendant and the victim can be evidence of premeditation and
       deliberation based on the defendant’s opportunity to take a “second look.” And
       this Court has also held that “[m]anual strangulation can be used as evidence that
       a defendant had an opportunity to take a ‘second look.’ ” Gonzalez, 468 Mich at
       641. But in Hoffmeister, this Court found that insufficient evidence existed to
       show premeditation and deliberation because, when the only evidence presented
       was the number of stab wounds, there was no basis for the jury to conclude that
       the defendant had adequate time for a “second look.” Hoffmeister, 394 Mich at
       159, 161. [Oros, 502 Mich at 242-244 (footnotes omitted; first and last alterations
       in original).]

        There is ample evidence supporting Perez’s conviction in this case. Perez made highly
incriminating statements both before and after Magana’s death. Before Magana’s death, he
suggested to his daughter that she should not worry if she did not see him the next day and that
he was planning to take Magana with him. Afterward, Perez himself suggested a motive by
acknowledging that Magana intended to leave him and threatened to tell the police that he had
given them a false name after his recent arrest. Perez’s neighbor testified that she overheard a
heated altercation lasting several hours, during which she heard a female voice, presumably
Magana, scream, “[W]hy are you doing this to me[?]” The neighbor also recalled a 15 to 20
minute period when the altercation seemed to ebb, which was plenty of time for Perez to have
considered his next action. Finally, the forensic pathologist testified that some of Magana’s
injuries were consistent with a defensive struggle and that it could have taken approximately five
minutes of applied force to actually cause death by manual strangulation. All of this evidence
suggests that Perez had the opportunity for a “second look.” Therefore, we conclude the
evidence, considered in the light most favorable to the prosecution, was sufficient to uphold
Perez’s conviction.




                                               -6-
                                   IV. WAIVER OF RIGHTS

        Lastly, Perez argues that the trial court committed plain error by allowing the prosecution
to introduce his custodial interview at trial. Perez claims that because he is a native Spanish
speaker and was intoxicated at the time of the interview, he did not understand his Miranda3
rights and, therefore, could not have voluntarily, knowingly, and intelligently waived those
rights. We disagree.

        Perez admits that he did not preserve this argument by raising it in the trial court. See
People v Dickinson, 321 Mich App 1, 15; 909 NW2d 24 (2017). Because this claim of error is
unpreserved, we review it only for plain error affecting Perez’s substantial rights. People v
Pennington, 323 Mich App 452, 457 n 2; 917 NW2d 720 (2018). “To satisfy the plain-error
standard, a defendant must show (1) that an error occurred, (2) that the error was plain (i.e., it
was clear or obvious), and (3) that the error affected his or her substantial rights (i.e., that it
affected the outcome).” Id.

        “A suspect’s waiver of his Miranda rights must be made ‘voluntarily, knowingly, and
intelligently.’ ” People v Tanner, 496 Mich 199, 209; 853 NW2d 653 (2014), quoting Miranda,
384 US at 444. In Tanner, our Supreme Court recited the two-part inquiry necessary for
determining whether a waiver was valid:

                First, the relinquishment of the right must have been “voluntary,” in the
         sense that it was the product of a free and deliberate choice rather than
         intimidation, coercion or deception. Second, the waiver must have been made
         with a full awareness of both the nature of the right being abandoned and the
         consequences of the decision to abandon it. Only if the “totality of the
         circumstances surrounding the interrogation” reveal both an uncoerced choice and
         the requisite level of comprehension may a court properly conclude that the
         Miranda rights have been waived. [Tanner, 496 Mich at 209, quoting Moran v
         Burbine, 475 US 412, 421; 106 S Ct 1135; 89 L Ed 2d 410 (1986).]

        Perez does not argue that the police utilized any intimidating, coercive, or deceptive
tactics. Rather, Perez argues only that he did not understand the choice presented because of a
language barrier and his intoxication. Accordingly, we consider the second part of the inquiry
set forth in Tanner as to whether Perez’s waiver was made with “full awareness of both the
nature of the right being abandoned and the consequences of the decision to abandon it.”
Tanner, 496 Mich at 209.

        In order to validly waive the right against compelled self-incrimination, the defendant
need only have a “very basic understanding of those rights . . . .” People v Eliason, 300 Mich
App 293, 304; 833 NW2d 357 (2013) (quotation marks and citation omitted). Stated differently,
“the test is not whether it was wise or smart to admit . . . culpability.” People v Tierney, 266
Mich App 687, 710; 703 NW2d 204 (2005). In Tierney, this Court agreed with the trial court


3
    Miranda v Arizona, 384 US 436, 444-449; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


                                                -7-
that the defendant’s waiver was knowingly and intelligently made because the defendant
acknowledged his rights and was willing to speak with the police officers, did not appear to be
confused, and several officers testified that the defendant’s intoxication, although not precisely
known, “did not interfere with his ability to understand and to answer the questions posed to
him.” Id.

        There is no evidence clearly demonstrating that Perez did not understand the Miranda
warning because of a language barrier. At the time of his arrest, Perez spoke to one of the
arresting officers in English. He also responded appropriately to commands given in English.
During the custodial interview, when asked whether he needed help understanding his rights,
Perez responded, “I’m okay.” Even so, the detective read Perez his rights a second time while
permitting Perez to follow along on the written form and, again, Perez responded that he
understood and signed the form indicating as much. Admittedly, there were moments during the
interview when the detective struggled with Perez’s accent, but Perez corrected any
misunderstandings. Viewing the totality of the exchange, Perez fairly demonstrated his ability to
speak and understand English. We are satisfied that Perez, although a native Spanish speaker,
possessed a sufficient grasp of English to understand his rights.

        Similarly, we recognize that “[i]ntoxication from alcohol or other substances can affect
the validity of a waiver of Fifth Amendment rights, but is not dispositive.” Id. at 707. Rather,
whether the waiver was knowingly and intelligently given “depends, in part, on the defendant’s
capacity.” Id. At trial, the evidence varied as to the degree of Perez’s intoxication throughout
the time period in question. However, there is no reason for this Court to conclude that Perez’s
intoxication affected his ability to understand his rights and freely waive them. Although it is
undisputed that Perez was drunk the night before, it seems that his level of intoxication had
largely dissipated by the time of his arrest the following morning. The detective who conducted
the interview testified that he had no concerns that Perez was still drunk because Perez followed
directions, did not stumble, did not slur his speech, was coherent, and was actively answering the
detective’s questions. Several other officers also observed that, although there was an odor of
alcohol present, there were no overt signs that Perez was overly intoxicated and that he was able
to follow instructions and move about under his own power without stumbling.

         Even if we were to assume that the trial court erred by admitting evidence of Perez’s
custodial statement to police, we are satisfied that the trial’s outcome would not have changed
because of the significant amount of other incriminating evidence supporting the jury’s verdict.
It is not clear or obvious that any error occurred and, assuming an error did occur, Perez failed to
demonstrate how the error affected the outcome of his trial. Thus, Perez cannot satisfy the plain-
error standard. See Pennington, 323 Mich App at 457 n 2.

       Affirmed.




                                                             /s/ Michael J. Riordan
                                                             /s/ Jane E. Markey
                                                             /s/ Anica Letica

                                                -8-
