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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 12, 2017

v No. 328937 Wayne Circuit Court DENNIS ALBERT WANGLER, LC No. 15-000568-03-FH

Defendant-Appellant.

Before: B OONSTRA , P.J., and C AVANAGH and K. F. K ELLY , JJ.

P ER C URIAM

.
Defendant appeals as of right his jury convictio ns of conducti ng a criminal enterprise (racketeering), MCL 750.159i(1), two counts of receiving or con cealing stolen property with a value of $1,000 or more but less than $20,000, MCL 750.535(3)(a ), three counts of organized retail crime, MCL 752.1084, and attempted receiving or conceali ng stolen property with a value of $1,000 or more but less than $20,000, MCL 750.92; MCL 750.53 5(3)(a). We affirm.

Defendant first argues that the trial court erred in admitting evidence of items seized from the home of codefendant Carlos Davila (Carlos). We disagree. Defendant’s argument that the evidence is irrelevant is preserved, but his argument that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice is unpreserved because he did not object on that ground below. See People v Aldrich , 246 Mich App 101, 113; 631 NW2d 67 (2001).

A trial court’s decision whether to admit evidence is reviewed for an abuse of discretion,
which occurs when the decision fa lls outside the range of princ ipled outcomes or when the court erroneously interprets or applies the law. People v Lane , 308 Mich App 38, 51; 862 NW2d 446 (2014). Any preliminary questions of law are reviewed de novo. Id . The unpreserved aspect of defendant’s argument is reviewed for plain error affecting subs tantial rights. See People v
Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). Under the plain erro r rule, a defendant must demonstrate that an error occurred, that it was clear or o bvious, and that it affected substantial rights, i.e., that it affected the outcome of the p roceedings. Id. If these requirements are satisfied, reversal is warranted only when the error result ed in the convicti on of an innocent defendant or seriously affected the fairness, integrity, or pub lic reputation of the proceedings. Id.
at 763-764.-2- In general, all relevant evidence is admissible, but evidence that is not relevant is not
admissible. MRE 402. “ ‘Relevant evidence’ means evidence hav ing any tendency to make the existence of any fact that is of consequence to the determinati on of the action more probable or less probable than it would be without the evidence.” MRE 401; see also People v Mills , 450 Mich 61, 66-67; 537 NW2d 909, m od on other grounds 450 Mich 121 2 (1995). Evidence that is “of consequence to the determination of the action” is “materia l.” Id . at 67. Evidence need not be directed to an element of a crime or an applicable defense i n order to be deemed material. Id

. at 67-68. A fact is material if it is within the range of liti gated matters in controversy. Id . at 68. Any tendency to make the existence of a fact that is of consequ ence to the determination of the action more probable or less probable than it would be without the evidence comprises sufficient probative force for the purpose of determining relevance. Id

.

MRE 403 allows the exclusion of relevant evidence if its proba tive value is substantially outweighed by the danger of unfair prejudice or confusion of th e issues.

All relevant evidence is prejudicial; only unfairly prejudicial evidence may be excluded. Unfair prejudice exists when there is a tende ncy that evidence with little probative value will be given too much weight by th e jury. Unfair prejudice may arise where consid erations extraneous to the meri ts of the case, such as jury bias, sympathy, anger, or shock, are injected. [ People v Danto , 294 Mich App 596, 600; 822 NW2d 600 (2011) (quotation marks and cit ations omitted).]

Defendant challenges the admission of Michigan State Police Se rgeant Andrew Osborne’s testimony concerning items recovered from Carlos’s ho me during the execution of a
search warrant. The items r ecovered included $97,000 in cash, buckets of bulk silver, precious gems, Home Depot gift cards, and a 2006 Chevrolet Corvette. De fendant contends that this evidence was irrelevant and unfairly prejudicial because there was no connection established
between defendant and the confis cated items. Defendant’s argum ent lacks merit because the evidence comprised proof of the existence and nature of a commo n criminal enterprise in which both defendant and Carlos participated.

“In order to prove a racketeerin g violation, the prosecution must prove beyond a reasonable doubt that the defendant was employed by, or associated with, an enterprise and knowingly conducted or participate d in the affairs of the enter prise directly or indirectly through a pattern of racketeering activity.” People v Martin , 271 Mich App 280, 289; 721 NW2d 815 (2006), aff’d 482 Mich 851 (2008). “The general rule is well s ettled that, where several persons are engaged in one common unlawful enterprise, whatever is said or done by any one of them in the prosecution of the common enterprise, or while it is still in progress, is evidence against all the parties to it.” People v Beller , 294 Mich 464, 468; 293 NW 720 (1940), quoting People v
Pitcher , 15 Mich 397, 403-404 (1867). I t has likewise been recognized by a federal appellate

court

that proof of the enterprise and pattern elements of racketeeri ng may well entail evidence of numerous criminal acts by a variety of persons. A single pattern of racketeering may be common to a number of defendants and, in su ch circumstances, even though individual defendants may reasonablyclaim no direct-3- participation in the acts of oth ers, evidence of those acts is relevant to the [Racketeer Influenced and Corrupt O rganizations Act (RICO)] cha rges against each defendant. Specifically, th e various criminal activities of racketeering confederates are admissible agai nst each defendant to prove: (i ) the existence and nature of the RICO enterprise and (ii) a pattern of racketeerin g activity on the part of each defendant by providing the requisite relationship and c ontinuity of illegal activities. [ United States v Basciano , 599 F3d 184, 207 (CA 2, 2010) (quotation marks and citations omitted). 1 ]

It is also “well settled that in prosecutions for racketeering offenses, the government may introduce evidence of uncharged offenses to establish the exist ence of the criminal enterprise.” United States v Baez , 349 F3d 90, 93 (CA 2, 2003); see also United States v Mejia , 545 F3d 179, 206 (CA 2, 2008) (“Where, as here, the existence of a racketeer ing enterprise is at issue, evidence of uncharged crimes comm itted by members of that enter prise, including evidence of uncharged crimes committed by the defendants themselves, is adm issible to prove an essential element of the RICO crimes charged – the existence of a crimina l enterprise in which the defendants participated.”) (quotation marks and citation omitte d).

In this case, defendant was c harged with conducting a criminal enterprise (racketeering) in connection with his repeated purchases of stolen goods from the same persons and what appeared to be stolen goods from an undercover police officer. Defendant made these purchases in his capacity as an employee of a business called the Wayne E xchange, of which codefendant
Carlos was the owner and codefendant Matthew Davila was another employee. It is reasonable to infer that Carlos, as the owner of the Wayne Exchange, retai ned the greatest share of proceeds arising from the criminal ente rprise. The fact that $97,000 incash was found in a duffel bag
underneath the stairs in Carlos’ s home, along with other valuab le items that could reasonably be concluded to have been acquired with the proceeds of the enterp rise, was probative of the existence of the criminal enterprise. It is unlikely that a pe rson would risk keeping such a large
amount of cash in his home unless it was related to a criminal activity. Further, the Home Depot gift cards found in Carlos’s home were determined to be the sam e cards that had been sold by an undercover police officer to the Wayne Exchange, further tying the evidence recovered from Carlos’s home to the criminal enterprise. It is reasonable to infer that the enterprise was ongoing at the time the evidence was recovered from Carlos’s home given that it had been in operation for years and an undercover officer sold goods that were made t o appear stolen to the Wayne Exchange less than three weeks before the execution of the sear ch warrant. The evidence concerning the items recovered fr om Carlos’s home was therefore relevant to the e xistence of the criminal enterprise. There is no indication that the evidence was unfairly prejudicial, let alone that such unfair prejudice substa ntially outweighed the probati ve value.

1 “Lower federal court decisions are not binding on this Court, but may be considered on the basis of their persuasive analysis.” People v Fomby , 300 Mich App 46, 50 n 1; 831 NW2d 887 (2013).-4- Even if the trial court had erred in admitting the evidence, r eversal would not be required. With respect to the unpreserved aspect of his argument, defenda nt must demonstrate a plain error that affected the outcome of the proceedings. See Carines , 460 Mich at 763. Regarding the preserved aspect of his argument, defendant must demonstrate th at the error was more likely than not outcome-determinative in that it undermined the reliability of the verdict. See People v Krueger , 466 Mich 50, 54; 643 NW2d 223 (2002). The testimony concerni ng the recovery of items from Carlos’s house was not significant in comparison to other evidence of defendant’s guilt. There was overwhelming evidence regarding the existence of the criminal enterprise and defendant’s key role in that enterprise, including testimony by an undercover police officer who repeatedly sold what appeared to be stolen products to defendan t at the Wayne Exchange and from persons who regularly sold actual stolen items to defendan t at the Wayne Exchange. The alleged error was not outcome determinative in light of the wei ght and strength of the untainted
evidence. Id

.
Defendant next argues that the prosecution abused its power incharging him with both racketeering and the offense of organized retail crime. We dis agree. Contrary to defendant’s assertion on appeal, he did not raise this issue below, and it is therefore unpreserved. See People v Metamora Water Serv, Inc , 276 Mich App 376, 382; 741 NW2d 61 (2007).

A prosecutor has discretion in determining what charges to fil e. People v Barksdale , 219 Mich App 484, 488; 556 NW2d 521 (1996); see also People v Nichols , 262 Mich App 408, 415; 686 NW2d 502 (2004) (“The prosecution is given broad charging d iscretion. The prosecutor has discretion to bring any charges supported by the evidence.”) (c itation omitted). An abuse of that discretion occurs only if the prosecutor’s reasons for filing c harges are unconstitutional, illegal,
or ultra vires. Barksdale , 219 Mich App at 488. “Courts thus review a charging decision under an ‘abuse of power’ standard, questioning whether a prosecutor has acted in contravention of the
constitution or the law.” Id . “Questions of constitutional and statutory interpretation pr esent questions of law reviewed de novo.” People v Hall , 499 Mich 446, 452; 884 NW2d 561 (2016). Because this issue is unpreserved, this Court’s review is for p lain error affecting substantial rights. See Carines , 460 Mich at 763-764.

As our Supreme Court recently explained in Hall , 499 Mich at 453-454:

Prosecutors have broad discretion in deciding under which stat ute they will prosecute a defendant, even if more than one statute is ap plicable. Statutory interpretation begins with the text of the statutes, and effect must be given to every clause and sentence. The Court must avoid an interpretat ion that would render any part of the statute surplusage or nugatory. When th e Legislature has unambiguously conveyed its intent in a statute, judicial constr uction is not permitted. If a statute is unambiguous, a court should not app ly preferential or dice-loading rules of statutory i nterpretation. A statute is a mbiguous if two provisions irreconcilably conflic t or if the text is equally su sceptible to more than one meaning. If two provisions can instead be construed to avo id conflict, that construction should control. [Quotation marks, ellipsis, and c itations omitted.]

In Hall , 499 Mich at 448-449, 463-464, the Supreme Court held that the defendant could be charged with two separate offenses related to his falsificat ion of nominating petitions in a-5- judicial election. The defendant was charged under both MCL 16 8.937, a felony offense which prohibited the making of a false document under the Michigan El ection Law, and MCL 168.544c(8)(a), a misdemeanor offense that proscribed the speci fic act of signing another person’s name to a nominating petition. Id . at 463-464. A significant indicator of the Legislature’s intent to allow pr osecution under either of two s tatutes is the fact that the two
offenses do not involve the same elements. Id . at 455, citing People v Ford , 417 Mich 66, 80; 331 NW2d 878 (1982). The Supreme Court concluded in Hall that MCL 168.937 required proof of a specific intent to defraud, an element that was not presen t in the offense set forth in MCL
168.544c. Hall , 499 Mich at 455-456. A statutory presumption exists that whe n two statutes related to the same subject matter or sharing a common purpose conflict, the more recent and more specific statute will control. Id . at 458. However, this presumption applies only when the seemingly conflicting statutes are ambiguous. Id . MCL 168.937 and MCL 168.544c each defined distinct prohibited c onduct, and the defendant could be charged under the plain language of either provision. Id . at 458-459. “That the two statutes apply concurrently does n ot render them ambiguous, where each applies independently to prohibit de fendant’s conduct. The Legislature frequently and reas onably criminalizes similar inst ances of misconduct in separate and independent statutes that share common elements.” Id . at 459 (citation omitted). The Court also concluded that the purpose of MCL 168.544c was not to redu ce the severity of punishment for election law forgery; rather, it was to criminalize conduct that falls short of common law forgery but still threatens the integrity of elections. Id . “When statutory crimes are distinct, as here, a prosecutor does not abus e his discretion by charging th e greater offense.” Id . at 460.

See also Ford , 417 Mich at 80-84 (finding no a buse of prosecutorial discreti on in charging the defendant, who forg ed a credit card slip, with utt ering and publishing rather than misuse of a credit card, where the knowing presentation of a fo rged writing was an element of uttering and publishing but not o f misuse of a credit card and the record adequately supported the prosecutor’s exercise of h is charging discretion); Genesee Prosecutor v Genesee Circuit Judge

, 386 Mich 672, 683-684; 194 NW2d 693 (1972) (a prosecutor has br oad discretion in determining under which of two statutes to file charges; if the two offense s are related but nonetheless separate and distinct, the prosecutor has discretion to charge under either statute or both, if warranted by the facts); People v Peach , 174 Mich App 419, 423; 437 NW2d 9 (1989) (“Where a defendant may be charged unde r two statutes, one general and the other specific , the prosecutor has discretion to charge under e ither statute if the statutes p rohibit different crimes (i.e., an additional element is required to convict the defendant of one of the crimes, but notthe other).”).

Defendant asserts that the prosecution abused its power by cha rging him with both organized retail crime and rack eteering. He suggests that orga nized retail crime is the more specific statute that fits the f acts of this case. We disagree with defendant’s argument.

The provision of the racketeering statute under which defendan t was charged, MCL 750.159i(1), provides: “A person employed by, or associated wit h, an enterprise shall not knowingly conduct or participate i n the affairs of the enterpri se, directly or indirectly, through a pattern of racketeering activit y.” The statutory language thus makes plain that, “[i]n order to prove a racketeering violation, the prosecution must prove beyo nd a reasonable doubt that the defendant was employed by, or associated with, an enterprise an d knowingly conducted or participated in the affairs of t he enterprise directly or indir ectly through a pattern of racketeering activity.” Martin , 271 Mich App at 289, citing MCL 750.159i(1). “ ‘Enterprise’ includes an-6- individual, sole proprietorshi p, partnership, corporation, limi ted liability company, trust, union, association, governmental unit, o r other legal entity or a grou p of persons associated in fact although not a legal entity. Enterprise includes illicit as we ll as licit enterprises.” MCL 750.159f(a).

“Pattern of racketeering activity” means not less than 2 incid ents of racketeering to which all of the following characteristics appl y:

( i ) The incidents have the same or a substantially similar purpos e, result, participant, victim, or method of commission, or are otherwise interrelated by distinguishing characteristi cs and are not isolated acts.

( ii ) The incidents amount to or pose a threat of continued crimina l activity.

( iii ) At least 1 of the incidents occurred within this state on or after the effective date of the amendatory act that added this section, and the las t of the incidents occurred within 10 years after the commission of any prior inci dent, excluding any period of imprisonment served by a person engaging in the r acketeering activity. [MCL 750.159f(c).]

As explained in Martin , 271 Mich App at 290:

“Racketeering” is further defined as “committing, attempting to commit, conspiring to commit, or aiding or abetting, soliciting, coerci ng, or intimidating a person to commit” certain enumerated offenses for financial gai n. MCL 750.159g. Hence, the prosecution must normally prove the commi ssion of each element of the predicate acts of racketeering, in addition to t he other elements of racketeering, in order to pr ove a racketeering violation.

“[T]he Legislature intended rack eteering to be a separate and d istinct offense, the violation of which may be punished separately from and cumulatively with the underlying predicate
offenses.” Martin , 271 Mich App at 295, citing M CL 750.159j(13) (“Criminal penal ties under this section are not mutually exc lusive and do not preclude the application of any other criminal or civil remedy under this section or any other provision of la w.”). Racketeering is “a felony punishable by imprisonment for not more than 20 years or a fine of not more than $100,000, or both.” MCL 750.159j(1). The racket eering provision has been i n effect since April 1, 1996. See
1995 PA 187.

The Organized Retail Crime Act defines an “organized retail cr ime” as follows:

“Organized retail crime” means the theft of retail merchandise from a retail merchant with the intent or purpose of reselling, distri buting, or otherwise reentering the retail merchandise in commerce, including the tr ansfer of the stolen retail merchandise to another retail merchant or to any other p erson personally, through the mail, or through any electronic medium, including t he internet, in exchange for anything of value.-7- The provision under which defendant was charged, MCL 752.1084(1 ), provides in relevant part
as follows:

A person is guilty of organized retail crime when that person, alone or in association with another pe rson, does any of the following:

* * *

(e) Receives, purchases, or possesses retail merchandise for s ale or resale knowing or believing the retail merc handise to be stolen from aretail merchant.

Another provision of the Organized Retail Crime Act, MCL 752.10 85, states: “This act does not prohibit a person from being charged with, convicted of, or sen tenced for any violation of law arising out of the same criminal transaction that violates this act.” “Organized retail crime is a felony punishable by imprisonment for not more than 5 years or a fine of $5,000.00, or both.” MCL 752.1084(2). The Organized Ret ail Crime Act became effecti ve on March 31, 2013. See
2012 PA 455.

Defendant’s argument that he s hould not have been charged with racketeering because organized retail crime is the more specific offense that fits t he facts of this case is devoid of merit. Defendant has made no effort to identify an ambiguity i n either the racketeering statute or the Organized Retail Crime Act that would warrant resort to the dice-loading or preferential rule that the more recent and more specific statute controls. See Hall , 499 Mich at 458 (noting that this presumption applies only if the seemingly conflicting stat utes are ambiguous). An appellant may not leave it to this Court to unravel or elab orate for him his arguments. People v Kevorkian

, 248 Mich App 373, 389; 639 NW2d 291 (2001). Defendant’s argume nt has thus been
abandoned. Id

.
In any event, we can discern no ambiguity in the language of t he relevant statutory provisions. It is clear from th e text of the statutory provisi ons that the Legislature intended for racketeering and organized retail crime to be separate and dist inct offenses. Racketeering requires proof of elements that are not required for a convicti on of organized retail crime. In addition to the predicate acts of racketeering, the prosecutor must prove that the defendant was employed by or associated with an enterprise and that the defen dant knowingly participated in the affairs of the enterprise through a pattern of racketeering activity. MCL 750.159i(1); Martin

, 271 Mich App at 289. By contrast, the Legislature has explicit ly provided that organized retail crime may be committed by the defendant alone, and there is no requirement to prove that the defendant was employed by or associated with an enterprise or t hat he participate d in the affairs of the enterprise through a patte rn of racketeering activity. MCL 752.1084(1). The Legislature’s intent to allow prosecution under either statute is thus made p lain by the fact that the offenses do
not involve the same elements. Hall , 499 Mich at 455. The Legislature has made amply clear that racketeering is an offense th at is separate and distinct f rom other criminal offenses, see MCL 750.159j(13); Martin , 271 Mich App at 295, and the Le gislature has likewise provide d in the Organized Retail Crime Act that a defendant may be charged with another offense arising out of
the same transaction that led to the organized retail crime charge, see MCL 752.1085. “That the two statutes apply concurrently does not render them ambiguous, where each applies independently to prohibitdefendant’s conduct.” Hall , 499 Mich at 459.-8- Accordingly, we conclude that r acketeering and the offense of organized retail crime constitute separate and distinct offenses and, thus, the prosec ution did not abuse its discretion by charging both offenses. See id . at 460; Genesee Prosecutor , 386 Mich at 684. Defendant’s claim that he was subjected to ar bitrary or discriminatory char ging must therefore fail. See Ford

, 417 Mich at 84 (rejecting a claim of arbitrary or discriminatory charging where the record adequately supported the prosecuto r’s exercise of his charging authority).

Affirmed.

/s/ Mark T. Boonstra /s/ Mark J. Cavanagh /s/ Kirsten Frank Kelly