                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    September 18, 2018
               Plaintiff-Appellee,

v                                                                   No. 337427
                                                                    Berrien Circuit Court
RONALD WESLEY JILES,                                                LC Nos. 2016-002223-FC,
                                                                             2016-002224-FH
               Defendant-Appellant.


Before: MURRAY, C.J., and CAMERON and LETICA, JJ.

PER CURIAM.

       Defendant, Ronald Wesley Jiles, appeals as of right his jury trial convictions of assault
and battery, MCL 750.81; being a felon in possession of a firearm (felon-in-possession), MCL
750.224f; carrying a concealed weapon in a vehicle, MCL 750.227(2); resisting and obstructing a
police officer, MCL 750.81d(1); injuring or harassing a police dog, MCL 750.50c; carrying a
firearm during the commission of a felony (felony-firearm), MCL 750.227b; possession of less
than 25 grams of cocaine, MCL 333.7403(2)(a)(v); possession of marijuana, MCL
333.7403(2)(d); third-degree fleeing and eluding, MCL 257.602a(3)(a); reckless driving causing
serious impairment of bodily function, MCL 257.626(3); second-degree fleeing and eluding,
MCL 257.602a(4)(a); and operating a vehicle with the presence of a controlled substance in his
system causing serious impairment of a bodily function, MCL 257.625(5)(a). We affirm.

        This case arises out of a police chase involving a semitruck and several police officers on
I-94 in Indiana and Michigan. Jiles, a truck driver, was making a delivery from his home state of
California to Uxbridge, Massachusetts. Jiles was spotted driving erratically on I-94 in Indiana
and failed to stop when Indiana police officers signaled for him to pull over. After he entered
Michigan, still pursued by the Indiana police officers, additional officers from several Michigan
law enforcement agencies joined the chase. Jiles swerved at officers who attempted to pull their
patrol cars next to the truck and officers who attempted to deploy “stop sticks” from the side of
the road. Jiles eventually came to a stop on an exit ramp after a Michigan State Police trooper
shot one of the semitruck’s rear tires. A blood test showed that Jiles had both methamphetamine
and cocaine in his system.

       Jiles first argues on appeal that he was denied his due process rights because the
prosecutor made comments regarding his postarrest silence in closing arguments contrary to his
Fifth Amendment rights, which also shifted the burden of proof to the defense. We disagree.

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         Jiles failed to object to the prosecutor’s comments at trial.1 Therefore, this issue is
unpreserved. Unpreserved issues of alleged prosecutorial misconduct2 are reviewed for plain
error. People v Aldrich, 246 Mich App 101, 110; 631 NW2d 67 (2001). Under plain-error
review, the defendant must demonstrate that “1) [an] error . . . 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). “The third requirement generally requires a showing of
prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Id. “[T]he
test for prosecutorial misconduct is whether a defendant was denied a fair and impartial trial.”
People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). Claims “of prosecutorial
misconduct are decided case by case, and this Court must examine the entire record and evaluate
a prosecutor’s remarks in context.” Id. at 64.

       At trial, Jiles admitted to ingesting cocaine on the morning in question, but denied that he
ingested any methamphetamine. He appeared to believe that someone put it in his coffee or that
it was mixed with the cocaine that he purchased. On cross-examination, the prosecutor
questioned Jiles regarding his claim that he did not intentionally ingest the methamphetamine:

               Q. And all of this is the first time we’re hearing this about this; right?

               A. What do you mean?

               Q. The first time you’re claiming the meth, no idea about it or anything
       like that; right?

               A. Yeah, I don’t—I don’t—I don’t get down on meth, period.

               Q. Okay. This is the first time we’re hearing this.

               [Defense Counsel]: Objection, you Honor. I don’t know who “we” are.

               The Court: Sustained.




1
  During Jiles’s cross-examination, defense counsel objected when the prosecutor asked Jiles
about the timing of his exculpatory assertions. However, the prosecutor’s closing arguments
were not challenged below.
2
  As recognized by this Court in People v Cooper, 309 Mich App 74, 87-88; 867 NW2d 452
(2015), although the phrase “prosecutorial misconduct” is used as a term of art in criminal
appeals, it is a misnomer when used to describe technical or inadvertent errors that do not
involve illegal conduct or other activity violating the rules of professional conduct. Allegations
of less extreme error—i.e., error that would not warrant discipline under the rules of professional
conduct—are more accurately described as claims of “prosecutorial error.”


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               [Prosecutor]: Thank you. Nothing further.[3]

       In closing argument, the prosecutor stated:

              People today like things convenient. The defendant likes things
       convenient for him; convenient defense that he has. Convenient that “from the
       time of my criminal actions in Indiana and Michigan start, I can’t remember a
       thing until someone’s doing something wrong to me and putting me in cuffs.”
       Can’t remember a single thing; that’s what he’s claiming now. It’s convenient.

In addition, the prosecutor argued:

              The other case involves the drugs, the possession of the drugs. He
       admitted to possessing them. He knowingly possessed those drugs. He claims
       now he didn’t know it was methamphetamine. I’d ask you to use your common
       sense in whether or not you believe that. He claims he absolutely knew it was
       cocaine, but he knew that was methamphetamine in there too. And he took both
       of them knowingly and willingly.

Finally, the prosecutor remarked: “And after seven months, what he tells you is that ‘I can’t
remember anything from that time frame.’ So, in essence he cannot deny anything on the video
or what the police officers testified.”

       We disagree that these comments constituted an impermissible argument regarding Jiles’s
postarrest silence. Rather, we view them as an appropriate attack on the credibility of Jiles’s
testimony. See People v Rodriguez, 251 Mich App 10, 34; 650 NW2d 96 (2002) (“Any party
may attack the credibility of a witness.”). The prosecutor did not expressly comment on
defendant’s statements or lack of statement to the police before trial. Instead, the prosecutor
focused on what defendant explained “now”—that is, at trial—and argued that defendant’s
testimony was conveniently limited and unworthy of belief. Accordingly, we find no error in the
prosecutor’s closing argument. See People v Howard, 226 Mich App 528, 548; 575 NW2d 16
(1997) (“A prosecutor may, however, argue from the facts that . . . the defendant . . . is not
worthy of belief.”).

        Nor do we agree that the challenged comments shifted the burden of proof to Jiles to
prove his innocence. “Although a defendant has no burden to produce any evidence, once the
defendant advances evidence or a theory, argument on the inferences created does not shift the
burden of proof.” People v Fields, 450 Mich 94, 115; 538 NW2d 356 (1995). As a result, the
prosecutor’s comments regarding the improbability of Jiles’s assertion that he did not remember
the police chase and that he did not knowingly use methamphetamine did not shift the burden of
proof to defendant to prove his defense. See id. at 116 (“When a defense makes an issue legally


3
  To the extent that Jiles contends that the trial court sustained defense counsel’s objection on
Fifth Amendment grounds, we disagree. Defense counsel’s objection was clearly based on the
ambiguous nature of the prosecutor’s use of the word “we” in questioning Jiles.


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relevant, the prosecutor is not prohibited from commenting on the improbability of the
defendant’s theory or evidence.”). See also People v McGhee, 268 Mich App 600, 635; 709
NW2d 595 (2005) (“[A]ttacking the credibility of a theory advanced by a defendant does not
shift the burden of proof.”).

        Even if the prosecutor’s comments were improper, Jiles is not entitled to reversal under
the plain-error rule because he cannot show prejudice. Carines, 460 Mich at 763. The trial court
instructed the jury that the lawyer’s arguments were not evidence and that it should only accept
the lawyer’s comments if supported by the evidence. “Jurors are presumed to follow their
instructions, and it is presumed that instructions cure most errors.” People v Mahone, 294 Mich
App 208, 212; 816 NW2d 436 (2011). More importantly, even if the prosecutor’s closing
argument was construed as commenting on Jiles’s failure to assert an involuntary intoxication
defense before trial, it is clear that Jiles was not prejudiced because the jury acquitted him on an
additional charge of possession of methamphetamine. In any event, there was substantial police
officer testimony and dashboard camera video that presented the events of the police chase to the
jury. Jiles admitted that he could not dispute the officers’ testimony or the video. Based on
Jiles’s own admissions and the strength of the evidence offered at trial, Jiles has failed to
establish prejudice. Accordingly, he has not shown that the prosecutor’s comments constituted
plain error affecting his substantial rights. See Carines, 460 Mich at 763. See also People v
Borgne, 483 Mich 178, 201-202; 768 NW2d 290 (2009) (concluding that appellate relief was not
warranted under Carines without proof of prejudice).

        Jiles also asserts that his defense counsel was ineffective for failing to object to the
prosecutor’s comments. However, this issue is not properly before this Court because it is
outside the scope of Jiles’s statement of the question presented. MCR 7.212(C)(5); People v
Mysliwiec, 315 Mich App 414, 420; 890 NW2d 691 (2016). Even if this issue had been properly
presented, Jiles would not be entitled to appellate relief because he cannot establish an
ineffective assistance of counsel claim on this basis. To prevail on a claim of ineffective
assistance of counsel, a defendant must establish that “(1) the performance of his counsel was
below an objective standard of reasonableness under prevailing professional norms and (2) a
reasonable probability exists that, in the absence of counsel’s unprofessional errors, the outcome
of the proceedings would have been different.” People v Sabin (On Second Remand), 242 Mich
App 656, 659; 620 NW2d 19 (2000). The prosecutor’s closing argument was not improper, and
counsel is not ineffective for failing to raise a meritless objection. People v Matuszak, 263 Mich
App 42, 58; 687 NW2d 342 (2004). Furthermore, as already explained, Jiles was not prejudiced
by counsel’s failure to object to the prosecutor’s comments because he was acquitted of
possession of methamphetamine, the jury was properly instructed that the attorneys’ arguments
were not evidence, and there was substantial evidence of Jiles’s guilt as it related to the
remainder of the charges. It is, therefore, unlikely that the outcome of the proceedings would
have been different if defense counsel had successfully objected to the prosecutor’s argument.
Sabin (On Second Remand), 242 Mich App at 659.

      Finally, Jiles asserts that the trial court abused its discretion in admitting evidence of
condoms found during a search of his semitruck. We disagree.

        “The decision whether to admit evidence is within the trial court’s discretion and will not
be disturbed absent an abuse of that discretion.” People v McDaniel, 469 Mich 409, 412; 670

                                                -4-
NW2d 659 (2003). An abuse of discretion occurs “when the court chooses an outcome that falls
outside the range of principled outcomes.” People v Douglas, 496 Mich 557, 565; 852 NW2d
587 (2014) (quotation marks and citation omitted). As a general rule, we will not find an abuse
of discretion when the trial court’s ruling involves a close evidentiary question. People v Sabin
(After Remand), 463 Mich 43, 67; 614 NW2d 888 (2000). “A preserved error in the admission
of evidence does not warrant reversal unless after an examination of the entire cause, it shall
affirmatively appear that it is more probable than not that the error was outcome determinative.”
People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013) (quotation marks and citation
omitted).

        MRE 401 states that relevant evidence is “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” In addition, MRE 402 provides that “[a]ll
relevant evidence is admissible, except as otherwise provided by the Constitution of the United
States, the Constitution of the State of Michigan, these rules, or other rules adopted by the
Supreme Court. Evidence which is not relevant is not admissible.” MRE 403 provides that
“[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

        In this case, after testimony concluded on the second day of trial and outside of the
presence of the jury, Jiles objected to the prosecution’s intent to admit evidence of condoms that
the police discovered during the search of the semitruck. Jiles argued that the condoms were
irrelevant to the charged offenses and that any limited relevance was outweighed by the risk of
unfair prejudice. According to Jiles, the evidence was only offered to make him “look bad”
because he was married and away from his wife. In response to the prosecutor’s assertion that
the condoms were relevant to Jiles’s knowledge of the presence of the gun, Jiles argued that the
prosecutor had sufficient, nonprejudicial evidence to establish knowledge.

        The trial court denied Jiles’s motion to exclude the evidence, stating that whether the
prosecution had enough other evidence was not the proper test. Instead, the trial court had to
examine the probative value of the proposed evidence. The trial court opined that there was a
logical connection between the gun and the condoms in this case because the gun was in a
Walmart bag and a receipt found in the semitruck indicated that Jiles had recently purchased
condoms at Walmart. Thus, the trial court explained that the presence of the condoms in the
truck was “some evidence” that Jiles knew the gun was in the truck. Further, the trial court
explained that the probative value was not substantially outweighed by the slight danger of unfair
prejudice because people are encouraged to use condoms, which are often advertised on
television and in print.

        Based on the foregoing, we do not believe that the trial court abused its discretion in
allowing the evidence of the condoms to be presented at trial. Although Jiles eventually
admitted that he possessed the gun in the semitruck, he pleaded not guilty to felon-in-possession,
carrying a concealed weapon, and felony-firearm. As a result, the prosecutor was required to
prove beyond a reasonable doubt that Jiles had possession of the gun, which could be established
by evidence of constructive possession, i.e., knowledge of the firearm in a reasonably accessible
location at the time of the offense. See People v Burgenmeyer, 461 Mich 431, 437-439; 606

                                               -5-
NW2d 645 (2000). See also People v Crawford, 458 Mich 376, 389; 582 NW2d 785 (1998)
(“Because the prosecution must carry the burden of proving every element beyond a reasonable
doubt, regardless of whether the defendant specifically disputes or offers to stipulate any of the
elements, the elements of the offense are always ‘in issue’ and, thus, material.”).

        Police officers discovered the gun in the sleeping area of the semitruck, wrapped in a
Walmart bag and placed between two pillows inside of a single pillow case. Officers also
discovered several items—including the condoms—and a receipt showing that Jiles recently
purchased those items at Walmart. Although the gun was placed in Jiles’s sleeping area, it was
possible that Jiles would argue at trial that the gun was placed there without his knowledge. In
fact, he testified that the truck belonged to his boss. As the trial court reasoned, the jury could
infer from this evidence that Jiles purchased the condoms from Walmart, removed the condoms
from the Walmart bag, placed the gun in the Walmart bag, and then placed it between the pillows
on his bed. While we recognize that the same point could have been made without identifying
the items that were purchased from Walmart, we cannot conclude that the trial court’s
determination that the condoms were relevant to Jiles’s knowledge of the gun fell outside the
range of reasonable and principled outcomes. Douglas, 496 Mich at 565. We also agree that the
risk of unfair prejudice arising from this evidence was slight, especially in light of the fact that
the condoms were mentioned by only one witness and not discussed by the prosecutor in closing
arguments. Therefore, the trial court did not abuse its discretion by refusing to exclude the
evidence under MRE 403. Id. See also Sabin (After Remand), 463 Mich at 67 (“[T]he trial
court’s decision on a close evidentiary question . . . ordinarily cannot be an abuse of
discretion.”).

       Affirmed.



                                                             /s/ Christopher M. Murray
                                                             /s/ Thomas C. Cameron
                                                             /s/ Anica Letica




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