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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED November 13, 2014

v No. 317360
Kent Circuit Court ANGEL MICHELLE GIOGLIO, LC No. 12-009445-FH

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and B ECKERING and S HAPIRO , JJ.

P ER C URIAM

.
Defendant, Angel Gioglio, appeal s as of right her jury tria l conviction of one count of uttering and publishing, MCL 750.249. The trial cour t sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 6 to 40 years’ in carceration for her convict ion, with credit for 44 days of time served. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Defendant’s conviction arises out of a forged check that she presented for deposit. On January 22, 2012, Wendy Arntz went to a mall to walk for exercise. When she arrived, she placed the keys to her car in her sweatshirt and hung the sweatshirt in a coatroom inside the mall. Unbeknownst to Arntz, defendant followed her in to the mall, took the keys from inside the sweatshirt, and used the keys to break into Arntz’s vehicle. On ce inside the vehicle, defendant stole Arntz’s purse, which contained, among other items, Arntz’s checkbook.

Approximately four days later, defendant agreed to rent seve ral rooms from David
Skirvan. Defendant did not immedi ately give him a security depos it or money for rent, but she assured Skirvan that she would pay him shortl y. On February 3, 2012, defendant went to a Chase Bank branch inside of a Meijer store and deposited a check for $1,500 into Skirvan’s
account. The check was written from Arntz’s ch ecking account. Defendant admitted that she deposited the check but testifie d that Skirvan gave her the ch eck for $1,500 from Arntz’s account and asked her to “drop it off for him while he used the bathroom” in the Meijer store. However,
Skirvan testified that he did notask defendant to deposit the check into his account and that he had “nothing” to do with depositing the check at issue. In addition, Arntz and her husband
testified that that they did not know Skirvan be fore the initiation of this case and that they never gave anyone permission to write a check from thei r account to Skirvan. The teller at the bank where defendant deposited the check confirmed th at Skirvan was not with defendant at the time-2- the check was deposited, and that defendant did not have Skirvan’s account information, so she had to look up his account information to deposit the check.

After defendant moved into his home, Skir van began to experience issues with his personal belongings and financial affairs. On February 6 or 7, 2012, he attempted to use his debit card to purchase groceries but was told th at his account was frozen because of fraudulent activity. On February 8, 2012, he noticed that four checks were missing from his checkbook. He found one of these checks written for $50 to “Angel Gioglio Cleani ng Services.” When Skirvan confronted defendant, she denied writin g the check, and he contacted the Kent County Sheriff’s Department on February 8, 2012. Thatsame day, defendant moved out of Skirvan’s home at his request. After defendant moved out of Skirvan’s home, he learned that his credit card account had been “maxed out” and closed, and his email and Facebook accounts had been closed “due to suspicious activity.” Skirvan had let defendant use his laptop computer because she said she needed it for work purposes. Skir van also testified that shortly after defendant moved into his home, he noticed that severa l items were missing from his home, including sterling silver coasters, kitchen utensils, crystal ashtra ys, and an expired Michigan identification card, but he initially thought he had simply misplaced these items. In addition, Skirvan testified that after defendant moved out of his home, he went through the area where she had stayed and
found Arntz’ checkbook hidden in a cl oset in the upstairs of the home. At trial, defendant denied stealing any items from Skirvan or possessing Arntz’s checkbook.

In approximately mid-February 2012, Arntz was walking at the same mall where she had been at the time her purse was stolen. Defendant approached he r and inquired if her purse had
been stolen from the mall. Arntz confirmed that it had, and defendant stated that she also had her purse stolen from the mall. Defendant told Arntz that the person who stole their purses “ended up being caught” and “went to prison.” Arntz testif ied that she was “suspi cious” of defendant at first, but defendant continued to engage her in conversation; defendant told Arntz that she
“looked familiar” to her and the women tried to determine how they knew each other. Arntz also testified that defendant inquired whether she ha d replaced her driver’s license. At trial,
defendant denied everspeaking to Arntz.

Defendant also testified that she and Skir van agreed that she would provide cleaning services to Skirvan in exchange for use of a room . However, at trial, the prosecution introduced
as an exhibit an email from defendant to a man named Ron Roloff dated February 5, 2012, in which defendant stated that she was renting a ro om, and “they got paid” for the room. Despite
the fact that this email was sent from an email account that defendant admitted was hers, defendant denied “ever hear[ing]” of Roloff. Defendant also testif ied that Skirvan was “interested in pursuing other th ings besides room and board,” and requested that she be his “companion.” When she refused and indicated that she was seeing some one, Skirvan told her that she was “no longer welcome in his home” because she was “dating a different race.” Defendant admitted that she had two pr ior uttering and publishing convictions.

The jury convicted defendant. At senten cing, defendant admitted that she had stolen Arntz’ checkbook and committed the charged offense.-3- II. EVIDENTIARY ISSUE A ND CONSTITUTIONAL CLAIMS

Defendant’s first argument on appeal is that the trial court erred when it excluded evidence of an email that Skirvan allegedly sent to defendant; the trial court’s ruling was based
on defendant’s failure to disclose this email as required by the trial court’s pretrial scheduling order and MCR 6.201. Defendant argue s that the email was relevant to show Skirvan’s lack of credibility and bias and that exclusion of this evidence denied defendant her constitutional rights to present a defense a nd of confrontation.

Defendant preserved her evidentiary issue by ch allenging the trial cour t’s exclusion of the
email. We review the trial court’s exclusion of the evidence for an abuse of discretion. People v King , 297 Mich App 465, 472; 824 NW 2d 258 (2012). This Court al so reviews a trial court’s decision regarding the appropriate remedy for a discovery violation for an abuse of discretion. People v Rose , 289 Mich App 499, 524; 808 NW2d 301 (2010). Defendant did not preserve her constitutional claims, as she raises them fo r the first time on appeal. We review these unpreserved constitutional claims for plain error affecting defendant’s substantial rights. People
v Carines , 460 Mich 750, 764-765; 597 NW2d 130 (1999). Purs uant to this standard of review,
a defendant must show the exis tence of a plain (clear or obvious) error and must show “prejudice, i.e., that the error affected th e outcome of the lower court proceedings.” Id. at 763. Even when there is a showing of plain error aff ecting substantial rights, reversal is warranted only when the plain error “resulted in the convic tion of an actually innocent defendant or when an error seriously affect[ed] th e fairness, integrity or public re putation of judicial proceedings independent of the defendant’s innocence.” Id . at 763-764 (citations and quotation marks omitted).

MRE 402 provides that all relevant evidence is generally admissible. Pursuant to MRE 401, relevant evidence is evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the actio n more probable or less probable than it would
be without the evidence.” Evidence is relevant if it affects the cred ibility of a witness, and “the jury is generally entitled to weigh all evidence that might bear on the truth or accuracy of a witness’s testimony.” King , 297 Mich App at 476-477. Likewise, evidence of a wi tness’ bias is “always relevant,” and “[a] defenda nt is entitled to have the jury consider any fact that may have influenced the witness’ testimony.” People v McGhee , 268 Mich App 600, 637; 709 NW2d 595 (2005) (citation and quotation omitted). However, relevant evidence may be excluded if it is offered in violation of a discovery order or the rules of discovery. People v Greenfield (On Reconsideration) , 271 Mich App 442, 456 n 10; 722 NW2d 254 (2006).

Discovery in a criminal case is govern ed by MCR 6.201. Upon the request of an opposing party, a party must provide “a description of and an opport unity to inspect any tangible physical evidence that the party may introduce at trial, including any document, photograph, or other paper, with copies to be provided on request.” MCR 6.201(A)(6). Further, MCR 6.201(F) provides that unless otherwise or dered by a trial court, “a defendant must comply with the requirements of this rule within 21 days of a request under this rule[,]” and MCR 6.201(H) imposes on all parties a continuing duty to disclose evidence. MCR 6.201(J) addresses violations of this discovery rule, and provides that if a party fails to comply with the court rule, a trial court may, in its discreti on, prohibit the party from introducing into evidence the material not disclosed. In addition, this Court has held th at if a party violates MCR 6.201 or a discovery-4- order, the trial court has discretion to fa shion an appropriate remedy, which “involves a balancing of the interests of the courts, the public , and the parties[,]” and requires an inquiry into all the relevant circumstances, including the cau se of the noncompliance and whether the party objecting to the evidence can establish prejudice. Rose , 289 Mich App at 525-526.

In the present case, the trial court entered a pretrial scheduling or der that ordered the parties to comply with the requirements of MCR 6.201, and the prosecution filed a request for discovery. The email in question was not disclosed as required. During the third day of trial and on redirect examination of defendant, the final witness, the defense attempted to introduce the
email as an exhibit. Defendant knew about the em ail before trial and the decision not to identify
the email as an exhibit before trial can be viewed as nothing other than a matter of trial strategy.
See People v Lucas , 193 Mich App 298, 303; 484 NW2d 685 ( 1992) (“The closer to the date of trial the evidence is offered, the more this factor suggests wilful misconduct designed to create a tactical advantage and weighs in favor of excl usion.”). Defendant had previously agreed to dismiss Skirvan as a witness, and there was a qu estion about how long it would take to locate Skirvan and recall him to question him about the em ail, or whether it was even possible to do so. In addition, defendant had ample opportunity to cross-examine Sk irvan on issues of credibility and bias, including the email in qu estion, if counsel so chose. Considering all of the relevant circumstances, the trial court di d not abuse its discretion when it found that the la te attempt to utilize this evidence, which was not producedin discovery, prejudiced the prosecution and
therefore warranted exclusion. Rose , 289 Mich App at 525-526; Lucas , 193 Mich App at 303. In so ruling, we note that despite the exclusion of this evidence, defenda nt presented her theory of the case to the jury, which was that Skirvan was not credible and that he had given her the $1,500 check to deposit into his account. In addition, we note that the evidence against defendant was compelling. Security video from the mall showed an individual who matched defendant’s description enter the coatroom, leav e shortly thereafter and enter Arntz’s vehicle,
and then leave in a vehicle that matched the desc ription of defendant’s ve hicle. In addition, defendant admitted to depositing a check from Arntz into Skirvan’s bank account, and Skirvan and Arntz testified that they did not know each other. Two days af ter depositing the check, defendant sent an email to an acquaintance in wh ich she stated that she “paid” someone for her rent. Furthermore, Skirvan testified that, af ter defendant left his house, he found Arntz’s checkbook in his house. And, less than a month after Arntz’s checkbook was stolen, defendant approached Arntz, told Arntz th at she knew that the checkbook had been stolen, that defendant’s purse had been stolen as well, and that the perp etrator of both offenses had been apprehended. Therefore, even assuming the trial court ab used its discretion by excluding the evidence,
defendant would not be entitled to relief. See People v Lukity , 460 Mich 484, 496; 596 NW2d 607 (1999) (internal quotation marks omitted) (explaining that “a preserved, nonconstitutional error is not a ground for reversal unless after an examination of the entire cause, it shall affirmatively appear that it is more proba ble than not that the error was outcome determinative.”).

Because the trial court did not abuse its discretion when it excluded the evidence, defendant was not denied her right to present a defense. See People v Yost , 278 Mich App 341, 379; 749 NW2d 753 (2008) (explaining that a defenda nt’s right to present a defense is not absolute, and that the defendant must comply with procedural and evidentiary rules). In addition, we find meritless defendant’s assertion that she was denied her right to confrontation. The record reveals that defendant had the opportun ity to cross-examine Sk irvan about facts from-5- which his bias, prejudice, or lack of credibil ity might be inferred. In addition, there is no
indication in the record that trial counsel was unable to ques tion Skirvan about the email in question; rather, it appears trial counsel chose no t to pursue this line of questioning during crossexamination of Skirvan. Therefore, exclusio n of this evidence did not deny defendant her constitutional right to confront Skirvan. See People v Gaines , ____ Mich App ____, _____; _____ NW2d _____ (Docket Nos. 310367, 310368, and 310369, issued August 5, 2014); slip op at 14 (citation omitted).

Defendant also argues that her trial counsel was ineffective because she failed to timely disclose the email that Skirvan allegedly sent to defendant, which resulted in the exclusion of this evidence, and because she failed to effectively challenge Skirvan’s credibility. Defendant did
not move for a new trial or for a Ginther 1 hearing, and this Co urt’s review is “limited to mistakes apparent from the record.” People v Heft , 299 Mich App 69, 80; 829 NW2d 266 (2012).

A defendant has the burden of proving ineffect ive assistance of trial counsel, and to do so, “the defendant must show that (1) defense counsel’s performan ce was so deficient that it fell below an objective standard of reasonableness, and (2) there is a reas onable probability that defense counsel’s deficient perfor mance prejudiced the defendant.” Id . at 80-81. To establish that she was prejudiced, a defendant must show that“but for defense counsel’s errors, the result of the proceeding would ha ve been different.” Id . at 81. Trial counsel ’s decisions regarding what evidence to present are generally presumed to be a matters of trial strategy, People v Horn

, 279 Mich App 31, 39; 755 NW2d 212 (2008), and trial counsel has wide discretion as to matters of trial strategy, Heft , 299 Mich App at 83. The fact that a strategy does not work does not render counsel’s performance objectively unreasonable. People v Petri , 279 Mich App 407, 412; 760 NW2d 882 (2008).

The record establishes that if defendant had identified the email as an exhibit before trial, the prosecution would have questioned Skirvan a bout the email during his direct examination, and Skirvan would have likely testified that defenda nt stole his email passwords and that she sent
the email to herself from his email account. More over, at trial the prosecution admitted evidence
to establish that defendant lied about at least one other email. In other words, if defendant had identified the email as an exhibit before trial, the prosecution could have used the email to
discredit defendant . Therefore, the record supports a findi ng that trial counsel’s initial decision
not to utilize the email as an e xhibit was a matter of trial strategy, Horn , 279 Mich App at 39. The fact that this strategy did not work does not render c ounsel’s performance objectively
unreasonable. Petri , 279 Mich App at 412. In addition, defendant’s tria l counsel used several lines of questioning in an attempt to impeach Skirvan and attack Skirvan’s credibility at trial. Trial counsel’s decisions regarding how to attack the credibility of Skirvan (including whether to identify the email as an exhibit before trial) were a matter of trial strategy, and the record does not establish that defense counsel’s performance in this regard was so deficient that it fell below an objective standard of reasonableness. Heft , 299 Mich App at 81, 83.

1 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-6- III. SENTENCING DEPARTURE

Defendant also argues that the trial court a bused its discretion when it departed from the statutory sentencing guidelines. The trial scored defendant’s minimum sentence guidelines at 10 to 46 months and departed from the guidelines by sentencing defendant to a minimum of six years (72 months). The trial court gave two reasons for its departure: (1) defendant was a “pathological liar” who “had a story for everything;” and (2) defendant engaged in predatory conduct, both before and after the uttering and pub lishing offense, because she “scope[d]” out
Arntz before the offense and because she went to the mall and spoke with Arntz after the offense, talking with her about the thef t of her purse and claiming th at the perpetrator had been apprehended. The trial court stated that these fa ctors were objective and verifiable and that they were not adequately consider ed under the guidelines.

Defendant argues that she is entitled to rese ntencing because the fact that she lied was not a substantial or compelling reason for departing from the guidelines. 2 In reviewing a departure from the guidelines range, the existence of a partic ular factor is a factual determination subject to
review for clear error. People v Anderson , 298 Mich App 178, 184; 825 NW2d 678 (2012). The determination that the factor is objective and veri fiable is reviewed de novo as a matter of law.
Id . And, the determination that a factor cons tituted a substantial and compelling reason for departure is reviewed for an abuse of discretion. Id . An abuse of discretion exists when the decision is not within the range of principled outcomes. Id. In addition, the amount of the departure is also reviewed for an abuse of discretion. People v Smith , 482 Mich 292, 300; 754 NW2d 284 (2008).

A court may depart from the recomme nded minimum sentencing range under the legislative guidelines if it has a substantial and compelling reason to do so and states on the record the reasons for departure. MCL 769.34(3); Anderson , 298 Mich App at 183. “In order to be substantial and compelling, the reasons on whic h the trial court relied must be objective and
verifiable.” Anderson , 298 Mich App at 183 (citation and quot ation omitted). “To be objective and verifiable, a reason must be based on actions or occurrences external to the minds of those involved in the decision, and must be capable of be ing confirmed.” Id (citation and quotation omitted). A trial court’s reason for departure is objective and verifiable when it relies on testimony in the record. Id. at 185. A trial court may not ba se a departure on an offense or offender characteristic already take n into account in th e guidelines unless the court finds that the characteristic has been given inade quate or disproportionate weight. Id . at 183-184. And, to
constitute a substantial and compelling reason to justify departure, a c ourt should recognize the reason as being “of considerable worth” in deciding the length of a sentence. Anderson , 298 Mich App at 183. Further, a tr ial court must insure that a departure renders the sentence

2 In making her argument, defendant does not raise an argument with regard to the trial court’s conclusion that her predatory c onduct, before and after the o ffense, was a substantial and compelling reason for departure, or that this reason was not adequately considered by the guidelines.-7- proportionate to the seriousness of defenda nt’s conduct and her criminal history. Smith , 482
Mich at 300.
In People v Kahley , 277 Mich App 182, 188; 744 NW2d 19 4 (2007), this Court held that the fact that a defendant committed perjury was objective and verifiable because the defendant admitted at his sentencing that he lied to the jury and that he committed the offenses. In addition, the Kahley Court found that the fact that th e defendant committed perjury, when combined with another objective and verifiable reason for departure, constituted a substantial and compelling reason for a si gnificant departure from the sentencing guidelines. 3 Id . at 188,
191. See also People v Houston , 448 Mich 312, 324; 532 NW 2d 508 (1995) (“In imposing sentence, a trial court may consider a defendant’s own perjury where there is a rational basis in the record for concluding that the defendant wilf ully made a flagrantly false statement on a material issue.”)

In the present case, duri ng trial, defendant denied taking Arntz’s checkbook or committing the charged offense. However, defendant admitted in a letter to the trial court that was read at sentencing that she stole the checkbook and that she committed the charged offense. The fact that defendant committed perjury at le ast two times during the trial was objective and
verifiable and an issue of considerable worth in deci ding defendant’s sentence. Houston , 448 Mich at 324; Kahley , 277 Mich App 188. In addition, the f act that defendant committed perjury was not already taken into account by the senten cing guidelines in determ ining the appropriate sentence. Therefore, defendant’s acts of perjur y could support an upward departure if combined with another substantial and comp elling reason for departure. Kahley , 277 Mich App at 188, 191. Here, the trial court also identified defenda nt’s repeated predator y conduct as a second reason for its decision to depart upward from the sentencing guidelines. Defendant does not challenge this decision on appeal and the record contains ampl e support for the trial court’s finding that defendant engaged in several acts of predatory conduct. Notably, defendant targeted Arntz before the offense and continued to target and harass her after the offense by returning to the mall and approaching her, inqu iring about the theft of her purse, claiming that hers was also stolen, representing that the pe rson who stole her purse had been apprehended, and inquiring whether Arntz had replaced her stolen driver’s license. 4 Defendant’s perjury and predatory conduct, taken together, are of considerable worth and constitute substantial and compelling reasons for departure. See Kahley , 277 Mich App at 188, 191; Anderson , 298 Mich App at 184.

3 This Court noted that, by itsel f, perjury would not be sufficien t to constitute a substantial and compelling reason for departure because, otherwis e, “a departure might be warranted every time a defendant testified and was found guilty.” Id

. 4 Although not challenged by defendant, we note that while offense variable (OV) 10, MCL 777.40, authorizes the trial court to score 15 poi nts for predatory conduct, it is limited to “preoffense conduct directed at a victim for the primary purpose of victimization.” MCL 777.40(3)(a). Here, the trial court based its decisi on to depart, at least in part, on defendant’s predatory conduct after the sentencing offense. This conduct is expressly excluded from consideration when scoring OV 10.-8- Turning to the proportionality of the departur e, we reject defendant’s cursory challenge
that the trial court failed to rende r a proportionate sentence. “The requirement that the trial court justify the extent of the departure is not overl y burdensome. The court need only reasonably comply with the statutory articulation requirementin order to facilitate appellate review.” Smith

, 482 Mich at 315. Here, the trial court reasonabl y complied with its obligation by highlighting the seriousness of defendant’s offense and opi ning that the recommended minimum guidelines range was not sufficient in this case, in light of defendant’s actions. The trial court explained that the sentence it imposed was more proportiona te under the circumstances. We find the trial
court did not abuse its discretion. See Smith , 482 Mich at 304 (“When departing, the trial court must explain why the sentence imposed is mo re proportionate than a sentence within the guidelines recommendation would have been.”).

Because there is no error in defendant’s sentence, defendant is not entitled to resentencing, and her request for reassignment to a different judge on remand is moot. People v Cathey , 261 Mich App 506, 510; 681 NW2d 661 (2004) (“ An issue is moot when an event occurs that renders it impossible for the reviewing court to fashion a remedy to the controversy.”).

Affirmed.

/s/ Michael J. Kelly /s/ Jane M. Beckering /s/ Douglas B. Shapiro