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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UNPUBLISHED 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: BOONSTRA, P.J., and CAVANAGH and K. F. KELLY, JJ. 

PER CURIAM. 

 Defendant appeals as of right his jury convictions of conducting a criminal enterprise 

(racketeering), MCL 750.159i(1), two counts of receiving or concealing 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 concealing stolen property with a value 

of $1,000 or more but less than $20,000, MCL 750.92; MCL 750.535(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 falls outside the range of principled 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 substantial rights. See People v 

Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Under the plain error rule, a defendant 

must demonstrate that an error occurred, that it was clear or obvious, and that it affected 

substantial rights, i.e., that it affected the outcome of the proceedings. Id. If these requirements 

are satisfied, reversal is warranted only when the error resulted in the conviction of an innocent 

defendant or seriously affected the fairness, integrity, or public reputation of the proceedings. Id.

at 763-764. 
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 In general, all relevant evidence is admissible, but evidence that is not relevant is not 

admissible. MRE 402. “ ‘Relevant evidence’ means 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.” MRE 401; see also People v Mills, 450 

Mich 61, 66-67; 537 NW2d 909, mod on other grounds 450 Mich 1212 (1995). Evidence that is 

“of consequence to the determination of the action” is “material.” Id. at 67. Evidence need not 

be directed to an element of a crime or an applicable defense in order to be deemed material. Id. 

at 67-68. A fact is material if it is within the range of litigated matters in controversy. Id. at 68. 

Any tendency to make the existence of a fact that is of consequence 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 probative value is substantially 

outweighed by the danger of unfair prejudice or confusion of the issues. 

 All relevant evidence is prejudicial; only unfairly prejudicial evidence 

may be excluded. Unfair prejudice exists when there is a tendency that evidence 

with little probative value will be given too much weight by the jury. Unfair 

prejudice may arise where considerations extraneous to the merits 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 citations 

omitted).] 

 Defendant challenges the admission of Michigan State Police Sergeant Andrew 

Osborne’s testimony concerning items recovered from Carlos’s home during the execution of a 

search warrant. The items recovered included $97,000 in cash, buckets of bulk silver, precious 

gems, Home Depot gift cards, and a 2006 Chevrolet Corvette. Defendant contends that this 

evidence was irrelevant and unfairly prejudicial because there was no connection established 

between defendant and the confiscated items. Defendant’s argument lacks merit because the 

evidence comprised proof of the existence and nature of a common criminal enterprise in which 

both defendant and Carlos participated. 

 “In order to prove a racketeering violation, the prosecution must prove beyond a 

reasonable doubt that the defendant was employed by, or associated with, an enterprise and 

knowingly conducted or participated in the affairs of the enterprise 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 settled 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). It has likewise been recognized by a federal appellate 

court 

that proof of the enterprise and pattern elements of racketeering 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 such 

circumstances, even though individual defendants may reasonably claim no direct 
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participation in the acts of others, evidence of those acts is relevant to the 

[Racketeer Influenced and Corrupt Organizations Act (RICO)] charges against 

each defendant. Specifically, the various criminal activities of racketeering 

confederates are admissible against each defendant to prove: (i) the existence and 

nature of the RICO enterprise and (ii) a pattern of racketeering activity on the part 

of each defendant by providing the requisite relationship and continuity 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 existence 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 racketeering enterprise is at issue, 

evidence of uncharged crimes committed by members of that enterprise, including evidence of 

uncharged crimes committed by the defendants themselves, is admissible to prove an essential 

element of the RICO crimes charged – the existence of a criminal enterprise in which the 

defendants participated.”) (quotation marks and citation omitted). 

 In this case, defendant was charged 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 Exchange, 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, retained the greatest share of proceeds 

arising from the criminal enterprise. The fact that $97,000 in cash was found in a duffel bag 

underneath the stairs in Carlos’s home, along with other valuable items that could reasonably be 

concluded to have been acquired with the proceeds of the enterprise, was probative of the 

existence of the criminal enterprise. It is unlikely that a person 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 same 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 to appear stolen to the Wayne 

Exchange less than three weeks before the execution of the search warrant. The evidence 

concerning the items recovered from Carlos’s home was therefore relevant to the existence of the 

criminal enterprise. There is no indication that the evidence was unfairly prejudicial, let alone 

that such unfair prejudice substantially outweighed the probative 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). 
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 Even if the trial court had erred in admitting the evidence, reversal would not be required. 

With respect to the unpreserved aspect of his argument, defendant 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 that 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 concerning 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 defendant at the Wayne Exchange and 

from persons who regularly sold actual stolen items to defendant at the Wayne Exchange. The 

alleged error was not outcome determinative in light of the weight and strength of the untainted 

evidence. Id. 

 Defendant next argues that the prosecution abused its power in charging him with both 

racketeering and the offense of organized retail crime. We disagree. 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 file. 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 discretion. The prosecutor has 

discretion to bring any charges supported by the evidence.”) (citation omitted). An abuse of that 

discretion occurs only if the prosecutor’s reasons for filing charges 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 present 

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 plain 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 statute they 

will prosecute a defendant, even if more than one statute is applicable. Statutory 

interpretation begins with the text of the statutes, and effect must be given to 

every clause and sentence. The Court must avoid an interpretation that would 

render any part of the statute surplusage or nugatory. When the Legislature has 

unambiguously conveyed its intent in a statute, judicial construction is not 

permitted. If a statute is unambiguous, a court should not apply preferential or 

dice-loading rules of statutory interpretation. A statute is ambiguous if two 

provisions irreconcilably conflict or if the text is equally susceptible to more than 

one meaning. If two provisions can instead be construed to avoid conflict, that 

construction should control. [Quotation marks, ellipsis, and citations 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 falsification of nominating petitions in a 
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judicial election. The defendant was charged under both MCL 168.937, a felony offense which 

prohibited the making of a false document under the Michigan Election Law, and MCL 

168.544c(8)(a), a misdemeanor offense that proscribed the specific 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 prosecution under either of two statutes 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 present in the offense set forth in MCL 

168.544c. Hall, 499 Mich at 455-456. A statutory presumption exists that when 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 conduct, and the defendant could be charged under the plain language 

of either provision. Id. at 458-459. “That the two statutes apply concurrently does not render 

them ambiguous, where each applies independently to prohibit defendant’s conduct. The 

Legislature frequently and reasonably criminalizes similar instances 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 reduce 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 abuse his discretion by charging the greater offense.” Id. at 460. 

 See also Ford, 417 Mich at 80-84 (finding no abuse of prosecutorial discretion in 

charging the defendant, who forged a credit card slip, with uttering and publishing rather than 

misuse of a credit card, where the knowing presentation of a forged writing was an element of 

uttering and publishing but not of misuse of a credit card and the record adequately supported the 

prosecutor’s exercise of his charging discretion); Genesee Prosecutor v Genesee Circuit Judge, 

386 Mich 672, 683-684; 194 NW2d 693 (1972) (a prosecutor has broad discretion in determining 

under which of two statutes to file charges; if the two offenses 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 under two statutes, one general and the other specific, the prosecutor 

has discretion to charge under either statute if the statutes prohibit different crimes (i.e., an 

additional element is required to convict the defendant of one of the crimes, but not the other).”). 

 Defendant asserts that the prosecution abused its power by charging him with both 

organized retail crime and racketeering. He suggests that organized retail crime is the more 

specific statute that fits the facts of this case. We disagree with defendant’s argument. 

 The provision of the racketeering statute under which defendant was charged, MCL 

750.159i(1), provides: “A person employed by, or associated with, an enterprise shall not 

knowingly conduct or participate in the affairs of the enterprise, directly or indirectly, through a 

pattern of racketeering activity.” The statutory language thus makes plain that, “[i]n order to 

prove a racketeering violation, the prosecution must prove beyond a reasonable doubt that the 

defendant was employed by, or associated with, an enterprise and knowingly conducted or 

participated in the affairs of the enterprise directly or indirectly through a pattern of racketeering 

activity.” Martin, 271 Mich App at 289, citing MCL 750.159i(1). “ ‘Enterprise’ includes an 
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individual, sole proprietorship, partnership, corporation, limited liability company, trust, union, 

association, governmental unit, or other legal entity or a group of persons associated in fact 

although not a legal entity. Enterprise includes illicit as well as licit enterprises.” MCL 

750.159f(a). 

 “Pattern of racketeering activity” means not less than 2 incidents of 

racketeering to which all of the following characteristics apply: 

(i) The incidents have the same or a substantially similar purpose, result, 

participant, victim, or method of commission, or are otherwise interrelated by 

distinguishing characteristics and are not isolated acts. 

(ii) The incidents amount to or pose a threat of continued criminal 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 last of the incidents 

occurred within 10 years after the commission of any prior incident, excluding 

any period of imprisonment served by a person engaging in the racketeering 

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, coercing, or intimidating a 

person to commit” certain enumerated offenses for financial gain. MCL 

750.159g. Hence, the prosecution must normally prove the commission of each 

element of the predicate acts of racketeering, in addition to the other elements of 

racketeering, in order to prove a racketeering violation. 

“[T]he Legislature intended racketeering to be a separate and distinct offense, the violation of 

which may be punished separately from and cumulatively with the underlying predicate 

offenses.” Martin, 271 Mich App at 295, citing MCL 750.159j(13) (“Criminal penalties under 

this section are not mutually exclusive and do not preclude the application of any other criminal 

or civil remedy under this section or any other provision of law.”). 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 racketeering provision has been in effect since April 1, 1996. See 

1995 PA 187. 

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

 “Organized retail crime” means the theft of retail merchandise from a 

retail merchant with the intent or purpose of reselling, distributing, or otherwise 

reentering the retail merchandise in commerce, including the transfer of the stolen 

retail merchandise to another retail merchant or to any other person personally, 

through the mail, or through any electronic medium, including the internet, in 

exchange for anything of value. 
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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 person, does any of the following: 

* * * 

 (e) Receives, purchases, or possesses retail merchandise for sale or resale 

knowing or believing the retail merchandise to be stolen from a retail merchant. 

Another provision of the Organized Retail Crime Act, MCL 752.1085, states: “This act does not 

prohibit a person from being charged with, convicted of, or sentenced 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 Retail Crime Act became effective on March 31, 2013. See 

2012 PA 455. 

 Defendant’s argument that he should not have been charged with racketeering because 

organized retail crime is the more specific offense that fits the facts of this case is devoid of 

merit. Defendant has made no effort to identify an ambiguity in 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 statutes are ambiguous). An appellant 

may not leave it to this Court to unravel or elaborate for him his arguments. People v Kevorkian, 

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

abandoned. Id. 

 In any event, we can discern no ambiguity in the language of the relevant statutory 

provisions. It is clear from the text of the statutory provisions that the Legislature intended for 

racketeering and organized retail crime to be separate and distinct offenses. Racketeering 

requires proof of elements that are not required for a conviction 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 defendant 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 explicitly 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 that he participated in the affairs 

of the enterprise through a pattern of racketeering activity. MCL 752.1084(1). The Legislature’s 

intent to allow prosecution under either statute is thus made plain 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 that is separate and distinct from other criminal offenses, see MCL 

750.159j(13); Martin, 271 Mich App at 295, and the Legislature has likewise provided 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 prohibit defendant’s conduct.” Hall, 499 Mich at 459. 
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 Accordingly, we conclude that racketeering and the offense of organized retail crime 

constitute separate and distinct offenses and, thus, the prosecution 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 arbitrary or discriminatory charging must therefore fail. See Ford, 

417 Mich at 84 (rejecting a claim of arbitrary or discriminatory charging where the record 

adequately supported the prosecutor’s exercise of his charging authority). 

 Affirmed. 

/s/ Mark T. Boonstra 

/s/ Mark J. Cavanagh 

/s/ Kirsten Frank Kelly