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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

April 14, 2015 

v No. 318436 

Calhoun Circuit Court 

DOSS FOREMAN, LC No. 2012-001963-FH 

 Defendant-Appellant. 

Before: OWENS, P.J., and JANSEN and MURRAY, JJ. 

PER CURIAM. 

 Defendant Doss Foreman was convicted by a jury of first-degree retail fraud, MCL 

750.356c. Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to 24 to 

60 months’ imprisonment. He appeals as of right, and we now affirm. 

 Defendant first argues that the prosecutor committed several errors that denied him a fair 

and impartial trial. We generally review such challenges de novo, People v Akins, 259 Mich 

App 545, 562; 675 NW2d 863 (2003), but because defendant failed to properly preserve his 

arguments by objecting to the alleged misconduct below, our review is limited to plain error 

affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 

130 (1999).1

 With respect to defendant’s argument that the prosecutor erred by asking defendant on 

cross-examination to comment on the credibility of prosecution witnesses, it is well-settled that a 

prosecutor may not ask a defendant to comment on the credibility of a prosecution witness 

because the “[d]efendant’s opinion of the [witness’s] credibility is not probative of the matter.” 

People v Buckey, 424 Mich 1, 17; 378 NW2d 432 (1985). However, the prosecutor’s error did 

not prejudice defendant. Carines, 460 Mich at 763. The prosecutor’s questions regarding 

witness credibility were brief, and defendant handled the questions well. See Buckey, 424 Mich 

 

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 With respect to the first alleged instance of prosecutorial error, defense counsel objected to the 

prosecutor’s questions as being “argumentative,” but failed to argue the questions were improper 

because they required defendant to make a credibility determination. Therefore, this issue was 

not preserved. People v Leshaj, 249 Mich App 417, 419; 641 NW2d 872 (2002). 
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at 17 (“However, the substance of the exchange indicates that defendant dealt rather well with 

the questions. We fail to discern how he was harmed by the questions.”). Moreover, the trial 

court instructed the jury that the lawyers’ questions were not evidence and that the jury was to 

make its own decisions regarding the credibility of the witnesses. We presume that the jurors 

followed their instructions. People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003). 

 Just as importantly, the evidence of guilt was overwhelming where defendant was 

observed on a video monitor, was detained outside of the store with a cart of unpaid 

merchandise, and had no means to pay for the merchandise on his own. While defendant 

claimed at trial that he was with a woman who was supposed to pay for the merchandise, he was 

alone when detained outside the store, and he never made statements about the woman at that 

time. On the record before this Court, defendant’s substantial rights were not affected by the 

prosecutor’s error, so he is not entitled to relief on this issue. Carines, 460 Mich at 763. 

 Defendant next argues that the prosecutor erred by arguing during his closing argument 

that defendant was a liar and by mischaracterizing the evidence presented. A prosecutor is 

permitted to argue that the defendant is not worthy of belief. People v Launsburry, 217 Mich 

App 358, 361; 551 NW2d 460 (1996). And, although a prosecutor may not mischaracterize the 

evidence presented, People v Watson, 245 Mich App 572, 588; 629 NW2d 411 (2001),

prosecutors are afforded “wide latitude” in arguing the facts of the case and reasonable 

inferences therefrom, People v Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007). 

 In closing, the prosecutor argued that defendant was “purposely lying” or “concocting a 

story” that a woman who was with him in the store was going to pay for the merchandise. But 

the evidence supported this theory, as it showed that defendant was alone when apprehended 

outside the store with a shopping cart full of merchandise for which he had not paid. And a 

shopping list was recovered from defendant’s possession bearing a woman’s name and a 

telephone number, but after defendant’s testimony there was no evidence that a woman was 

waiting to pay for the merchandise. Accordingly, the prosecutor permissibly argued that the jury 

could reasonably infer that defendant was lying. See Launsburry, 217 Mich App at 361. 

 Next, defendant claims error in the admission of other-acts evidence portraying defendant 

as a “thief” and a “liar.” We generally review a trial court’s decision to admit or exclude 

evidence for a clear abuse of discretion. People v Starr, 457 Mich 490, 494; 577 NW2d 673 

(1998). However, when unpreserved, our review is limited to plain error affecting defendant’s 

substantial rights. Carines, 460 Mich at 673. 

 Here, defendant argues that MRE 404(b) was implicated by evidence that defendant was 

found with a bridge card, an identification card, and a veterans’ affairs card belonging to other 

individuals. However, MRE 404(b) is only implicated when evidence is presented involving 

“other crimes, wrongs, or acts.” MRE 404(b)(1). The purpose of MRE 404(b) is to preclude 

evidence of prior bad acts being offered for the sole purpose of demonstrating the defendant’s 

criminal propensity to establish that he acted in conformity therewith. People v VanderVliet, 444 

Mich 52, 65; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994). The challenged evidence 

does not establish a prior crime, wrong, or act; rather, it established only that defendant 

possessed items belonging to another, and that defendant had no means of payment for what was 

found in his possession. It did not establish that defendant wrongly obtained the cards. Further, 
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this evidence enabled the prosecutor to “give the jury an intelligible presentation of the full 

context in which the disputed events took place.” People v Sholl, 453 Mich 730, 741; 556 NW2d 

851 (1996). MRE 404(b) was not implicated, and there was no plain error requiring reversal. 

Carines, 460 Mich at 763. 

 Finally, defendant argues that defense counsel was ineffective for failing to object to the 

alleged prosecutorial errors and the evidence challenged under MRE 404(b). Because no 

Ginther2 hearing was held, our review is limited to mistakes apparent on the lower court record. 

People v Fike, 228 Mich App 178, 181; 577 NW2d 903 (1998). 

 To prevail on a claim of ineffective assistance of counsel, a defendant bears a heavy 

burden to establish that (1) counsel’s performance fell below an objective standard of 

reasonableness, and (2) but for counsel’s error, there is a reasonable probability that the outcome 

of the defendant’s trial would have been different. People v Swain, 288 Mich App 609, 643; 794 

NW2d 92 (2010). Counsel’s performance should be evaluated from his or her perspective at the 

time of the alleged error, People v Grant, 470 Mich 477, 487; 684 NW2d 686 (2004), and a 

defendant must overcome a strong presumption that counsel’s performance was sound trial 

strategy, People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). 

 Although we discern no sound trial strategy in failing to properly object, see id., 

defendant fails to show a reasonable probability that the outcome of his trial would have been 

different but for counsel’s error, Swain, 288 Mich App at 643. The questions were brief in 

comparison to the overwhelming evidence supporting defendant’s guilt of the charged crime. In 

light of this evidence, there is not a reasonable probability that the outcome of defendant’s trial 

would have been different but for counsel’s failure to properly object to the prosecutor’s 

questioning of defendant. Id.

 Defendant’s argument that counsel was ineffective for failing to object to the prosecutor’s 

closing argument is also without merit. Because there was no error in the prosecutor’s closing 

argument, defense counsel was not ineffective for failing to make a futile objection. People v 

Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004). Nor was defense counsel ineffective 

for failing to object to the evidence that defendant possessed cards belonging to other individuals 

at the time he was apprehended outside Wal-Mart. The challenged evidence did not constitute 

evidence of other crimes, wrongs, or acts; therefore, any objection under MRE 404(b) would 

have been futile. See id. 

 Affirmed. 

/s/ Donald S. Owens 

/s/ Kathleen Jansen 

/s/ Christopher M. Murray 

 

2 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).