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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED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

v                                                                  No. 344842
                                                                   Iron Circuit Court
ALFRED MICHAEL SAARIO,                                             LC No. 16-009656-FH

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and METER and GLEICHER, JJ.

PER CURIAM.

        Defendant, Alfred Michael Saario, appeals by leave granted1 his convictions by a jury of
second-degree murder, MCL 750.317, and intentionally discharging a firearm in a dwelling
causing death, MCL 750.234b(5). The trial court sentenced defendant to serve concurrent
sentences of 25 to 40 years in prison for the second-degree murder conviction, and 7 years and 1
month to 40 years in prison for the intentional discharge of a firearm in a dwelling causing death
conviction. Defendant challenges the trial court’s jury instructions and his trial counsel’s
effectiveness. We affirm.

                                      I. BACKGROUND

         Defendant shot and killed the victim, his adult stepdaughter, in his and his wife’s home,
late in the evening on June 22, 2016. Defendant and the victim disliked each other and had an
extremely troubled relationship marked by calling each other derogatory names, physical
altercations, and mutual avoidance whenever possible. Defendant never disputed shooting the
victim; he claimed that he did so in self-defense and in defense of his wife.




1
  People v Saario, unpublished order of the Court of Appeals, entered November 10, 2018
(Docket No. 344842).



                                               -1-
        The victim struggled with an addiction to prescription pain medication, which she
developed after her involvement in a severe car accident. The victim’s house had no running
water, but it did have electricity. The victim lived close to defendant, and she often visited to use
the telephone, take showers, wash her laundry, and obtain drinking water. On the night of the
shooting, defendant and his wife visited a local bar. Defendant consumed beer and two shots of
liquor. The exact events that transpired after this were disputed. However, when defendant and
his wife returned to their home, the victim was present, along with defendant’s son and a friend
of defendant’s son. Defendant went to the upstairs bedroom and remained there for some time.
Defendant’s wife eventually went to the back porch to smoke, and the son and his friend went to
the basement.

        Defendant claimed that later in the evening the victim burst into his bedroom, grabbed his
phone, and fled downstairs. He claimed that, because of the prior physical altercations between
himself and the victim and his knowledge that she was struggling with drug addiction, he
grabbed his rifle from the closet, loaded two bullets into it, and went downstairs. He claimed he
feared for his and his wife’s safety. Defendant further claimed that he encountered the victim in
the living room, which was dark at the time. The victim made threatening remarks toward him
and moved, prompting him to react by firing the rifle, striking the victim and killing her.
Defendant then turned the rifle on his own head and pulled the trigger. He claimed that he had
done so because he could not imagine how he would tell his wife that he had shot her daughter.
He further claimed that, as he pulled the trigger, he changed his mind and moved his head
slightly. Defendant survived, but he sustained severe, permanent, and readily apparent head
injuries.

        The jury was apparently unpersuaded by defendant’s claims of self-defense and defense
of his wife. He was charged with open murder, and the jury convicted him of the lesser offense
of second degree murder. The jury also convicted him of intentionally discharging the firearm in
the house causing the victim’s death.

                                   II. JURY INSTRUCTIONS

       Defendant first argues that the trial court erroneously instructed the jury by referring to
crimes for which he was not on trial. Defendant contends that the trial court’s error prejudiced
him. We conclude that the trial court did not err, and even if an error occurred, it was harmless.

                                  A. STANDARD OF REVIEW

        Defendant did not object to the jury instructions raised on appeal, leaving the issue
unpreserved. People v Sabin (On Second Remand), 242 Mich App 656, 657; 620 NW2d 19
(2000). We choose to give defendant the benefit of the doubt that he only failed to object, and
thus merely forfeited the alleged error, and he did not waive any objections, which would
entirely preclude appellate review. See People v Carter, 462 Mich 206, 215-216; 612 NW2d
144 (2000). As an unpreserved issue, we review defendant’s claim of instructional error for
plain error affecting his substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130
(1999). Thus, we will affirm unless an obvious error occurred that either altered the outcome of
the proceedings or severely undermined the propriety of the proceedings. Id. Jury instructions
are reviewed de novo and examined as a whole; “even if there are some imperfections, there is

                                                -2-
no basis for reversal if the instructions adequately protected the defendant’s rights by fairly
presenting to the jury the issues to be tried.” People v Martin, 271 Mich App 280, 337-338; 721
NW2d 815 (2006) (quotation omitted).

                                          B. ANALYSIS

        Before trial, defendant and the prosecution both sought to admit evidence under MRE
404(b), pursuant to which evidence of past conduct may be admitted for any purpose other than
solely to establish a person’s character. See People v Martzke, 251 Mich App 282, 289-292; 651
NW2d 490 (2002). The prosecution sought to admit evidence of defendant’s suicide attempt
immediately following the shooting and “[a]ny rebuttal necessary for specific acts introduced by
Defendant under MRE 404(b).” The trial court did not explicitly rule on the prosecution’s
motion, because defendant stipulated to the admission of his suicide attempt and that the
prosecution could rebut any character evidence he introduced on his own behalf. Defendant
sought to introduce evidence of a wide assortment of crimes committed by the victim and
generally pertaining to her aggressiveness, including drug use, breaking and entering, and
assaults. The trial court did not grant defendant’s motion in its entirety, but it ruled, in relevant
part, that defendant could introduce evidence of a 2012 violent altercation between the victim
and defendant.

        Several witnesses testified that they knew defendant to be a peaceful and honest person.
However, witnesses also testified that defendant had a propensity for a quick temper after
drinking and that he often vocally wished for the victim’s death and argued with her. The
witnesses indicated that such remarks were “stupid comments,” out of character for him, and
essentially hyperbolic and not intended seriously. Nevertheless, there was some evidence
introduced that defendant had been the initial physical aggressor in at least one significant
altercation between himself and the victim, albeit after significant provocation, and both he and
the victim sustained injuries. Defendant was arrested following the 2012 incident.

       Defendant takes issue with the following instructions given by the trial court:

               There has been some evidence that the Defendant attempted suicide after
       the alleged crime. This evidence does not prove guilt. A person may run or hide
       for innocent reasons, such as panic, mistake, or fear. However, a person may also
       run or hide because of a consciousness of guilt. You must decide whether the
       evidence is true, and, if true, whether it shows that the Defendant had a guilty
       state of mind.

                                              * * *

                You have heard evidence that was introduced to show that the Defendant
       committed a crime for which he is not on trial. If you believe this evidence, you
       must be very careful only to consider it for certain purposes. You may only think
       about whether this evidence tends to show that the Defendant acted purposefully;
       that is, not by accident or mistake, or because he misjudged the situation. You
       must not consider this evidence for any other purpose. For example, you must not



                                                -3-
       decide that it shows that the Defendant is a bad person or that he is likely to
       commit crimes.

              You must not convict the Defendant here because you think he is guilty of
       other bad acts or other bad conduct. All the evidence must convince you beyond
       a reasonable doubt that the Defendant committed the alleged crimes, or you must
       find him not guilty. [Emphasis added.]

As defendant points out, the trial court properly adapted M Crim JI 4.4, regarding flight or
concealment after a crime, to incorporate his suicide attempt.

        Defendant contends that the error lies in the instruction regarding crimes for which
defendant was not on trial. The instruction as given comports with M Crim JI 4.11, regarding
evidence of other offenses and imposing limits on the relevance of that evidence. Defendant
argues that the trial court erred because it failed to likewise adapt M Crim JI 4.11 to reference his
suicide attempt instead of “a crime.” He further argues that he was therefore prejudiced because
the jury was instructed that he had engaged in criminal conduct, which was highly significant in
a case that turned on his credibility.

        We reject defendant’s contention in his brief on appeal that “there was no evidence
admitted at the trial that [defendant] had committed any other criminal offenses” (emphasis in
original). The jury heard testimony regarding an incident in which defendant and the victim
physically assaulted each other and required police intervention. A witness testified that
defendant was the first physical aggressor in the incident, so his conduct, as described, was at
least potentially criminal. 2 The jury was further informed that defendant was arrested following
the incident. We are unable to conclude that the trial court’s failure to adapt M Crim JI 4.11 to
address the suicide attempt was an inadvertent oversight.

        Rather, we conclude that evidence was introduced of prior conduct by defendant that was
unrelated to the instant charged offenses, and it posed a risk of inducing the jury to draw
improper inferences as to defendant’s character. It therefore constituted MRE 404(b) evidence.
See People v Jackson, 498 Mich 246, 262-263; 869 NW2d 253 (2015). The instruction properly
informed the jury that it should not use the 2012 incident to infer defendant’s character or
convict defendant on the basis of any prior misconduct. The instruction was relevant to evidence
actually introduced and had the effect of protecting, rather than undermining, defendant’s rights.
Furthermore, juries are presumed to follow their instructions. People v Bruner, 501 Mich 220,
228; 912 NW2d 514 (2018). To the extent defendant may have been prejudiced by the trial court
indicating that some of defendant’s conduct was criminal, we are unpersuaded that it was
sufficiently powerful to overcome the presumption that the jury followed its limiting
instructions. Id. at 229-230.


2
  A battery is the “intentional, unconsented and harmful or offensive touching of the person of
another,” and an assault is “an attempt to commit a battery or an unlawful act that places another
in reasonable apprehension of receiving an immediate battery”). People v Cameron, 291 Mich
App 599, 614; 806 NW2d 371 (2011) (quotation marks and citation omitted).


                                                -4-
       The trial court’s instruction regarding evidence of other offenses committed by defendant
was not clearly erroneous, and even if it was erroneous, it did not improperly prejudice
defendant’s rights or affect the outcome of the proceedings.

                       III. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant next argues that his trial counsel was ineffective for failing to object to the
jury instruction. We disagree.

                                 A. STANDARD OF REVIEW

        As an initial matter, defendant presents this issue as an alternative, in the event we were
to deem any objection to the trial court’s instructions waived. There is a strong presumption that
trial counsel “rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” People v Vaughn, 491 Mich 642, 670; 821 NW2d 288
(2012) (quotation marks omitted), quoting Strickland v Washington, 466 US 668, 690; 104 S Ct
2052; 80 L Ed 2d 674 (1984). A defendant has a “heavy burden” to show otherwise. People v
Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009) (quotation marks and citations omitted). For
an ineffective assistance of counsel claim to be successful, a defendant must show: (1)
“counsel’s representation fell below an objective standard of reasonableness,” and (2) “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 US at 688, 694. Trial counsel has no duty to make
a meritless or futile objection. People v Putman, 309 Mich App 240, 245; 870 NW2d 593
(2015).

                                         B. ANALYSIS

        As discussed above, we conclude that the trial court’s instruction was not erroneous and
defendant was not prejudiced. Indeed, if the instruction had any effect at all, it would have
worked to defendant’s benefit. As also discussed above, we find no reason to speculate that the
jury would have been unable to follow the instruction to refrain from drawing improper character
inferences. Because trial counsel cannot be ineffective for failing to make a meritless
instruction, and defendant cannot demonstrate prejudice in any event, we do not find that
defendant received ineffective assistance of counsel.

       Affirmed.

                                                            /s/ Amy Ronayne Krause
                                                            /s/ Patrick M. Meter
                                                            /s/ Elizabeth L. Gleicher




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