                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 15, 2015
               Plaintiff-Appellee,

v                                                                  No. 317617
                                                                   Cass Circuit Court
ANTHONY MARK COX,                                                  LC No. 12-010126-FH

               Defendant-Appellant.


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

PER CURIAM.

        Defendant appeals by right his convictions for breaking and entering a building with the
intent to commit a larceny, MCL 750.110; conspiracy to commit breaking and entering a
building with the intent to commit a larceny, MCL 750.157a and MCL 750.110; larceny in a
building, MCL 750.360; conspiracy to commit larceny in a building, MCL 750.157a and MCL
750.360; and operating a motor vehicle without a license, MCL 257.904(1). We vacate the
conspiracy to commit larceny in a building conviction but affirm in all other respects.

       On April 21, 2012, Fabian Suarez, an off-duty Michigan State Police detective, went to
check on a vacant house his friend, Kenneth Fraser, owned. When Suarez approached the house,
he saw defendant’s truck backed up to the open attached garage and defendant and two men
standing in the garage. At trial, the two other men were identified as Kenny Haines and Ron
White. Suarez observed a white stove and scrap metal in the back of the truck. When Suarez
approached the men, defendant and an unidentified woman got into the truck and drove away.
Suarez spoke briefly with Haines and White, who stated that they lived in Indiana and that
defendant offered to buy them some beer if they helped him remove items from the house;
however, they denied knowing defendant very well or knowing who owned the house. Suarez
was able to identify defendant based on the license plate on the truck, and he and trooper Andrew
Steensma arrested defendant at his mother’s house two days after the incident. Fraser testified
that a white stove, a microwave, copper pipe, electrical wire, and metal were stolen from the
home and garage; he estimated the replacement value of these items at $5,000.

        Defendant first argues that there was insufficient evidence to convict him of breaking and
entering with intent, larceny in a building, and the two conspiracy charges. We review de novo
this claim, viewing the evidence in the light most favorable to the prosecution to determine
whether a rational trier of fact could find that the essential elements of the crime were proven

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beyond a reasonable doubt. People v Kanaan, 278 Mich App 594, 618; 751 NW2d 57 (2008).
Circumstantial evidence and reasonable inferences arising from the evidence may constitute
satisfactory proof of the elements of a crime. Id. at 619. We resolve all conflicts in the evidence
in favor of the verdict because the jury determines the credibility of witnesses and the weight
accorded to evidence. Id.

        The elements of breaking and entering with the intent to commit larceny are: “(1) the
defendant broke into a building, (2) the defendant entered the building, and (3) at the time of the
breaking and entering, the defendant intended to commit a larceny therein.” People v Toole, 227
Mich App 656, 658; 576 NW2d 441 (1998). The elements of larceny in a building are (1) an
actual or constructive taking of goods or property,

 (2) movement of the property, (3) the intent to steal or permanently deprive the owner of the
property; (4) the taking must be without the consent and against the will of the property’s owner;
and (6) the taking must occur with in the confines of the building. People v Cain, 238 Mich App
95, 119; 605 NW2d 28 (1999); People v Sykes, 229 Mich App 254, 278; 582 NW2d 197 (1998).
In this case, the jury was instructed that it could convict defendant of breaking and entering with
intent and larceny in a building as either a principal or as an aider and abettor. The elements
necessary to convict a defendant as an aiding and abetting theory are: “(1) the crime charged was
committed by the defendant or some other person; (2) the defendant performed acts or gave
encouragement that assisted the commission of the crime; and (3) the defendant intended the
commission of the crime or had knowledge that the principal intended its commission at the time
that [the defendant] gave aid and encouragement.” People v Robinson, 475 Mich 1, 6; 715
NW2d 44 (2006).

        The evidence at trial established that Suarez observed defendant’s truck backed up to
Fraser’s garage. A panel on the garage door was kicked in. Defendant, Haines, and White were
standing inside of the garage. Both Suarez and Fraser confirmed that the garage door had been
secure one week previously. Further, Fraser testified that he never gave defendant permission to
enter the garage or the home, and there was a sign at the end of the driveway identifying the
property as private property. Suarez observed a white stove and metal in the back of defendant’s
truck, and Fraser confirmed that items valued at $5,000 were stolen from the home and the
garage. When Suarez announced that he was a police officer, defendant fled with the stove and
metal still in the back of his truck. Defendant also admitted that he intended to take firewood
from the property and that he did take a coffee pot from the property. Also, both Suarez and
Steensma testified that when they initially questioned defendant about the items taken from the
Fraser home, he told them that he returned all of the “stuff” to the Fraser driveway. Viewed in a
light most favorable to the prosecution, this evidence was sufficient to permit a rational trier of
fact to convict defendant of larceny in a building, and breaking and entering a building with an
intent to commit a larceny, either as a principal or as an aider and abettor.

        The crime of conspiracy requires proof of “both the intent to combine with others and the
intent to accomplish the illegal objective.” People v Mass, 464 Mich 615, 629; 628 NW2d 540
(2001). It is not necessary that each coconspirator have full knowledge of the extent a criminal
conspiracy or that one conspirator know all of the other conspirators or participate in all of the
objects of the conspiracy. People v Hunter, 466 Mich 1, 7; 643 NW2d 218 (2002). In addition,
“direct proof of the conspiracy is not essential; instead, proof may be derived from the

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circumstances, acts, and conduct of the parties.” People v Justice, 454 Mich 334, 347; 562
NW2d 652 (1997). “The gist of the crime of conspiracy is the agreement of the conspirators to
commit one or more unlawful acts . . . .” People v Mezy, 453 Mich 269, 284; 551 NW2d 389
(1996). Whether there was one conspiracy to commit two crimes, or more than one conspiracy
each with a separate object is determined by the “totality of the circumstances.” Id at 285;
People v Bailey, 486 Mich 1066; 784 NW2d 46 (2010). In making this determination, factors
that courts should consider include, (1) time, (2) persons acting as coconspirators, (3) the
charged offenses, (4) the overt acts performed or the nature and scope of the activity prohibited
by the charged offenses, and (5) the places where the events alleged as part of the conspiracy
took place. Mezy, 453 Mich at 285.

        In the present case, defendant testified that he had known Haines and White for 10 or 15
years.1 Further, defendant admitted that because he was in poor health, he enlisted Haines and
White to lift heavy items into his truck on April 21, 2012. Defendant also testified that he and
his friends all arrived at the Fraser house together in defendant’s truck, and when they arrived,
Haines and White wanted to “check out” the house and garage, including a water heater in the
garage. Although defendant testified that he did not intend to steal anything from the Fraser
house (implying that his friends did), he contradicted this when he admitted that he intended to
take firewood from the property and actually took a coffee pot that was located outside of the
house. In addition, when Suarez identified himself as a police officer, defendant fled from the
scene with the stolen property, and he testified that he invited Haines and White to leave with
him. Further, when Steensma questioned him about how the items from the Fraser home got into
the back of his truck, defendant said, “People talk, one thing led to another, and the appliances
ended up being in the back of the truck.” Viewed in the light most favorable to the prosecution,
we conclude this evidence was sufficient to permit a rational trier of fact to find that defendant
and his friends agreed to break into and enter the Fraser home and garage and to commit a
larceny in the buildings and that the men had the specific intent to accomplish the illegal activity.
Mass, 464 Mich at 629. But the evidence only supports a finding that there was a single
agreement that resulted in two separate crimes. In other words, the evidence did not support the
existence of two agreements, each with a separate objective. The charged misconduct was
germane to one course of wrongdoing and one plan with one objective–to steal property from the
Fraser home. Therefore, the evidence only supported one count of conspiracy. Mezy, 453 Mich
at 284-285. Because the crime of larceny in a building could not have occurred without the
predicate crime of breaking and entering with intent, and thus there could be no conspiracy to
commit larceny in a building without first conspiring to break into, and enter, the building, we
vacate defendant’s conviction for conspiracy to commit larceny in a building.

        Second, defendant argues that the trial court improperly allowed the prosecution to
amend the information to add the charges of larceny in a building, conspiracy to commit larceny
in a building, and conspiracy to commit breaking and entering a building with intent and that the


1
 When defendant was arrested, he initially told Steensma that he barely knew Haines and White,
which was consistent with the statements Haines and White made to Suarez at the Fraser
property. At trial, however, defendant admitted that this was a lie.


                                                -3-
amendment of the information deprived him of his due process rights.2 Both of these
unpreserved claims of error are reviewed for plain error affecting defendant’s substantial rights.
People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). MCL 767.42(1) states in relevant
part that “[a]n information shall not be filed against any person for a felony until such person has
had a preliminary examination therefore, as provided by law, before an examining magistrate,
unless that person waives his statutory right to an examination.” However, MCR 6.112(H) states
in relevant part 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.” In People v McGee, 258 Mich App 683, 686-687, 693; 672 NW2d 191 (2003), this
Court held that pursuant to MCR 6.112(H), the trial court had the authority to add a new charge
to the information on the first day of trial even though that charge had not been raised at the time
the defendant waived her preliminary examination. The McGee Court relied on People v
Goecke, 457 Mich 442, 458-459, 462; 579 NW2d 868 (1998), which held that after a defendant
is properly bound over to the circuit court, that court had jurisdiction, and MCR 6.112(H)
permitted the circuit court to amend the information as long as the amendment would not
unfairly surprise or prejudice the defendant. McGee, 258 Mich App at 689-690, 696. The
McGee Court also held that any error in not providing the defendant a preliminary examination
with regard to the new charges, in light of sufficient evidence at trial to convict beyond a
reasonable doubt, was harmless error not warranting reversal. Id. at 695-699; MCL 769.26.

        In the present case, defendant waived his preliminary examination and was bound over to
circuit court on two charges. At that time, the circuit court acquired jurisdiction over defendant.
Goecke, 457 Mich at 458-459. Once the circuit court acquired jurisdiction, pursuant to MCR
6.112(H) the circuit court could permit an amendment to the information unless the proposed
amendment would unfairly surprise or prejudice defendant. McGee, 258 Mich App at 689-690,
693. The amendment to the information did not unfairly surprise defendant because defendant
had almost eight months’ notice of the new charges before trial. See People v Russell, 266 Mich
App 307, 317; 703 NW2d 107 (2005) (holding amending an information more than a month
before trial provided the defendant sufficient time to prepare). Further, defendant fails to even
articulate how additional time to prepare would have benefited his defense. See McGee, 258
Mich App at 693. The trial court did not plainly err when it granted the prosecution’s motion to
amend the information. Id.; Russell, 266 Mich App at 317. And, defendant’s argument
regarding the statutory right to a preliminary examination with regard to the new charges is at
best harmless error. McGee, 258 Mich App at 697-699.

       Further, amending the information did not violate defendant’s constitutional right to due
process, which generally requires reasonable notice of the charge and the opportunity to be
heard. McGee, 258 Mich App at 699. “Whether an accused is accorded due process depends on


2
   Defendant was originally only charged with, and bound over on, charges of breaking and
entering a building with intent to commit a larceny and operating a motor vehicle while his
license was suspended. Notably, defendant does not challenge the amendment to the information
that changed the charge of operating a motor vehicle with a suspended license to the more
favorable charge of operating a motor vehicle without a license.


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the facts of each case.” Id. at 700. A defendant must prove prejudice to his defense to establish
his right to due process was violated. Id. In McGee, the Court found that the defendant
understood the amended charge, did not claim to be unable to defend the added charge, did not
request a continuance, and did not claim that her defense might have been different given
additional time to prepare. Id. at 701. Therefore the defendant’s due process claim failed
because she failed to established prejudice with regard to the addition of a new charge. Id. at
702. Similarly, in the present case, defendant was notified of the addition of the charges eight
months before trial began. Further, defendant understood the new charges; indeed, they all arose
out of the same events, and defendant did not object to the amendment of the information. In
addition, defendant did not claim to be unprepared to try the added charges, did not request a
continuance, and did not claim that his defense might have been different had he been given
additional time to prepare. Thus, defendant’s due process claim fails “because [he] has not
established prejudice resulting from inadequate notice and opportunity to defend the charges.”
Id. at 702.

        Defendant also argues that his trial counsel was ineffective for failing to object to the
amendment of the information. But any objection to the amendment of the information would
have been futile, and an attorney is not ineffective for failing to raise a futile objection. People v
Unger, 278 Mich App 210, 256; 749 NW2d 272 (2008). Defendant cannot establish that his trial
counsel’s performance fell below an objective standard of reasonableness, so he cannot prevail
on his claim of ineffective assistance of trial counsel. Id. at 253.

        Third, defendant argues that the trial court improperly admitted the statements that
Haines and White made to Suarez pursuant to the coconspirator exception to the hearsay rule.
“‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). Hearsay is
generally inadmissible, MRE 802, but a statement is not hearsay if it is “offered against a party
and is . . . a statement by a coconspirator of a party during the course and in furtherance of the
conspiracy on independent proof of the conspiracy.” MRE 801(d)(2)(e). To be admissible under
the coconspirator exception to the hearsay rule, the proponent of the statement must show by the
preponderance of independent evidence (1) the existence of a conspiracy; (2) the statement was
made during the course of the conspiracy, and (3) the statement furthered the conspiracy. People
v Martin, 271 Mich App 280, 316-317; 721 NW2d 815 (2006).

        Here, sufficient evidence independent of Haines’ and White’s statements was offered at
trial to establish a conspiracy to commit breaking and entering with intent and larceny in a
building. In addition, the crimes of breaking and entering with intent to commit a larceny and
larceny in a building clearly contemplated a financial objective, specifically, selling any items
removed from the Fraser property. And, even “after the primary object of the substantive crime
is complete, the conspiracy may continue if its objectives contemplated the completion of
financial or other arrangements.” People v Bushard, 444 Mich 384, 394; 508 NW2d 745 (1993).
The statements of Haines and White, made minutes after defendant fled the property with the
stolen items but before the financial goals of the conspiracy were achieved, were made in the
course of the conspiracy. Id. at 395. Finally, a statement made in furtherance of a conspiracy
need not be made to a coconspirator, and a statement is considered to be in furtherance of a
conspiracy if the statement provides reassurance, serves to foster trust and cohesiveness, or
informs a coconspirator as to the progress or status of the conspiracy. Id. at 395-396. In the

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present case, Haines’ and White’s statements that they had no substantive information about
defendant and did know who owned the house were in furtherance of the conspiracy because
delaying the investigation gave defendant time to escape and sell the stolen property. In
addition, Suarez spoke to Haines and White simultaneously, so their statements to him could
reasonably be construed as indirectly communicating information to each other regarding the
conspiracy, including reassuring each other of the continued plan to deny involvement and
knowledge of defendant. In sum, the trial court properly admitted Suarez’s testimony regarding
the statements of Haines and White pursuant to MRE 801(d)(2)(e).

        We note that defendant also raises the unpreserved argument that a portion of Haines’
and White’s statements to Suarez was unfairly prejudicial and therefore not admissible pursuant
to MRE 403. But because defendant admits that the jury could have interpreted the challenged
testimony in his favor, he has failed to establish that this challenged testimony was unfairly
prejudicial. See People v McGhee, 268 Mich App 600, 614; 709 NW2d 595 (2005) (evidence is
unfairly prejudicial when it relates to matters extraneous to the merits of the lawsuit and may be
given too much weight by the jury). Plain error affecting defendant’s substantial rights did not
occur. Carines, 460 Mich at 763.

         Finally, defendant argues that there were several instances of prosecutorial misconduct.
All of these unpreserved claims of prosecutorial misconduct are reviewed for plain error
affecting defendant’s substantial rights. Id. Defendant first argues that the prosecutor while
interrogating witnesses and presenting her arguments improperly elicited irrelevant and highly
prejudicial information. The prosecutor obtained testimony from Suarez that defendant did not
come to the door for some time after the police officers arrived at his mother’s house to arrest
him. This testimony was evidence of attempting to evade custody and therefore relevant and
admissible to demonstrate consciousness of guilt. People v Coleman, 210 Mich App 1, 4; 532
NW2d 885 (1995). Likewise, the testimony the prosecutor elicited from Fraser regarding the
value of the property stolen was relevant and admissible to show a motive to commit the crime.
People v Yost, 278 Mich App 341, 406; 749 NW2d 753 (2008). The prosecutor did not commit
misconduct when she referenced this evidence in opening statement and closing argument
because she was “free to argue the evidence and all reasonable inferences from the evidence as it
relates to [her] theory of the case.” Unger, 278 Mich App at 236.

        Defendant also argues that in her closing argument, the prosecutor improperly suggested
facts not in evidence. Contrary to defendant’s argument, the prosecutor did not argue that Suarez
was “a community policing officer.” Instead, she argued that Suarez was a police officer, which
testimony supported, and that the jurors were members of the community. And, to the extent the
prosecutor argued that Suarez was a credible witness because he had no apparent reason to
dislike defendant and that he was not looking for extra police work, the prosecutor was properly
commenting on the credibility of its own witness on the basis of reasonable inference, People v
Thomas, 260 Mich App 450; 455; 678 NW2d 631 (2004), and properly appealing to the jurors’
common sense, People v Lawton, 196 Mich App 341, 355; 492 NW2d 810 (1992). Moreover,
the fact that a woman at defendant’s mother’s house was lying when she told Suarez that
defendant was not at the home was also in evidence. While there is no direct evidence that
defendant persuaded the woman to lie, this is a reasonable inference from the evidence because
she was a known acquaintance of defendant; there was no independent reason given for why the
woman would lie to the police, and the evidence permitted an inference that defendant was

                                               -6-
attempting to evade capture. Coleman, 210 Mich App at 4. Prosecutors are accorded great
latitude to argue the facts and reasonable inferences arising from the evidence. Nor are they
limited to presenting their arguments in the blandest possible terms. Unger, 278 Mich App at
236, 239. Finally, the prosecution’s comments that stolen property is typically never found were
properly responsive to the testimony defendant elicited at trial and to defense closing arguments.
People v Dobek, 274 Mich App 58, 64, 67; 732 NW2d 546 (2007).

        Next, defendant argues that the prosecutor improperly asked defendant to vouch for the
credibility of Suarez and Steensma because she asked defendant on cross-examination if Suarez
and Steensma were lying with regard to several statements. But defendant challenged the
credibility of Suarez and Steensma in several respects, and reviewing the prosecution’s questions
to defendant in context, we believe it is clear that the questions regarding whether Suarez and
Steensma were lying were posed in response to these direct challenges to the credibility of
Steensma and Suarez. Viewed in context, the prosecutor’s statements and questions during
Suarez’s and Steensma’s cross-examinations did not deny defendant a fair trial. Id.

        Defendant also argues that the prosecution misstated the law regarding conspiracy and
aiding and abetting; however, the prosecutor’s comments, in context, accurately stated the law.
To the extent the comments were mistatements of law, the trial court’s instructions rendered any
error harmless. People v Grayer, 252 Mich App 349, 357-359; 651 NW2d 818 (2002).

        Finally, we agree that the prosecutor improperly appealed to the jury’s sympathy when,
in her closing argument, she invited the jury to “imagine” how Fraser felt when he walked
through the home after the crimes. But this isolated comment was not so inflammatory as to
prejudice defendant. Further, the trial court instructed the jury not to be influenced by sympathy
or prejudice and instructed that the attorneys’ arguments were not evidence. These instructions
cured any error. Unger, 278 Mich App at 235, 237. And, because we have found only minor
errors that were cured by the trial court’s proper instructions, there is no cumulative effect of
multiple, uncured errors that denied defendant a fair trial. Id. at 258; 261-262.

         We vacate defendant’s conspiracy to commit larceny in a building conviction but affirm
in all other respects. We do not retain jurisdiction.

                                                            /s/ Michael J. Riordan
                                                            /s/ Jane E. Markey
                                                            /s/ Kurtis T. Wilder




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