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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 19, 2015

v No. 317214 Muskegon Circuit Court MARVIN LAVERN CHANDLER, LC No. 12-062596-FH

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and M URPHY and H OEKSTRA , JJ.

P ER C URIAM

.

Defendant appeals as of right his jury trial conviction for fi rst-degree retail fraud, MCL

750.356c. He was sentenced as a f ourth-habitual offender, MCL 769.12, to 28 months to 20 years’ imprisonment. We affirm.

Defendant’s conviction arises out of the theft of two laptop c omputers from a store on September 4, 2012. Video footage and still images captured by the store’s closed-circuit television security system revealed that defendant entered the store’s electronics department, waited until the sales associates were not looking, promptly re moved the security devices from the two laptops in question, walked out of the electronics depa rtment carrying the laptops, and then proceeded to the toy department with the laptops in tow. When defendant reached the end of a display rack in the toy department with the laptops in his hands, he moved behind the rack and was out of the view of the security cameras for approximate ly 15 seconds. After defendant emerged from behind the display rack and entered another aisle, a security camera was able to regain surveillance of his moveme nts. At this point, however, defendant was no longer holding the laptops in his hands and th e laptops were not openly visibl e. But the video footage did show defendant adjusting and holding h is shirt and shorts. Defendan t then walked directly to the front of the store and exited the store without paying for any items. As defendant left the store, the security footage revealed a rect angular outline underneath his shirt. The store’s loss prevention officer testified that in “[t]he images that we got as [defenda nt] was leaving the building[,] you can clearly . . . [see] that there is something underneath the shirt in the shape of what would be the size of the laptops.” This testimony was corroborated by t he images from the security cameras. Additionally, as defendant left the store, he is seen awkwardly holding his arms up to the side of his body instead of letting his arms hang freely at his side; he clearly appears to be trying to contain something under his shirt with his elbows. A pproximately 20 minutes after defendant exited the store, the loss prevention officer checked the toy department and aisles that-2- defendant had walked through to see if the laptops had been lef t in these areas, but she could not locate the laptops. Afterwards, t he police circulated photogra phs developed from the video footage, and multiple tips led to defendant’s apprehension. Th e police obtained a warrant to search defendant’s apa rtment, and the shor ts that defendant is seen wearing in the videotape were discovered, but the laptops were never recovered.

Defendant’s first argument on a ppeal is that there was insuffi cient evidence to support his conviction for first-degree reta il fraud. More specifically, d efendant argues that “the prosecutor failed to prove [that] defendant took property from the store w ith the intent to permanently deprive the store thereof.” As defendant develops his argument , it is clear that he is not directly challenging the “intent to permanently deprive” element of the crime; rather, he is contending that the prosecution “failed to present any evidence that lapto ps had been taken from the store by

defendant.” 1 Defendant emphasizes that the laptops were not found in his a partment. He suggests that perhaps the laptops remained in the store and wer e not adequately searched for after his departure. With resp ect to the prosecution’s theory that he concealed the laptops under his shirt and left the store with them, defendant argues that t here was no evidence that he indeed

hid them under his shirt. The s ubstance of defendant’s argumen t is focused on the claim that

there was insufficient eviden ce of a theft having actually occu rred.

We review de novo the issue regarding whether there was suffic ient evidence to sustain a

conviction. People v Lueth , 253 Mich App 670, 680; 660 NW2d 322 (2002). In reviewing the sufficiency of the evidence, this Court must view the evidence – whether direct or circumstantial – in a light most favorable to the prosecutor and determine whe ther a rational trier of fact could find that the essential elements of the crime were proved beyon d a reasonable doubt. People v

Reese , 491 Mich 127, 139; 815 NW2d 85 (2012); People v Hardiman , 466 Mich 417, 428; 646 NW2d 158 (2002). A jury, and not an appellate court, observes the witnesses and listens to their testimony; therefore, an appellat e court must not interfere wit h the jury’s role in assessing the weight of the evidence and the credibility of the witnesses. People v Wolfe , 440 Mich 508, 514- 515; 489 NW2d 748 (1992). Circumstantial evidence and the reas onable inferences that arise from such evidence can constitute satisfactory proof of the ele ments of the crime. People v

Carines , 460 Mich 750, 757; 597 NW2d 130 (1999). The prosecution need not negate every reasonable theory of innocence, but need only prove the element s of the crime in the face of whatever contradictory evidence is provided by the defendant. People v Nowack , 462 Mich 392, 400; 614 NW2d 78 (2000). We resolve all conflicts in the evide nce in favor of the prosecution. People v Kanaan , 278 Mich App 594, 619; 751 NW2d 57 (2008).

MCL 750.356c(1) provides in relevant part:

A person who does any of the following in a store or in its im mediate vicinity is guilty of retail fraud in the first degree . . . .

1 Defendant is indirectly challeng ing the “intent” element of th e offense in the sense that there could not have been any intent to permanently deprive the store of the laptops when there was no evidence that the laptops were taken in the first place.-3- . . .

(b) While a store is open to the public, steals property of th e store that is

offered for sale at a price of $1,000.00 or more.

With respect to first-degree retail fraud, the prosecution mus t prove beyond a reasonable doubt that: (1) “the defendant took some property that the stor e offered for sale;” (2) “the defendant moved the property,” wit h any movement being sufficie nt regardless of “whether the defendant actually got the prope rty past the cashier or out of the store;” (3) “the defendant intended to steal the property[,]” meaning that he or she “inte nded to permanently take the property from the store without t he store’s consent;” (4) the c harged act occurred “while the store was open to the public;” a nd (5) the price of the propert y was $1,000 or more. M Crim JI
23.13; 2 see also MCL 750.356c(1)(b); People v Cain , 238 Mich App 95, 119; 605 NW2d 28 (1999).

Here, taking into consideration the direct and circumstantial evidence, and the reasonable inferences arising therefrom, and viewing the evidence in a lig ht most favorable to the prosecution, there was more than sufficient evidence establishi ng that defendant surreptitiously carried the laptops out of the store without paying for them an d that he did so with the intent to permanently deprive the store of the property. This supporting evidence consisted of: the removal of the security devices attached to the laptops while s tore personnel were not looking; the visible handling of the laptops by defendant before enterin g the toy department; defendant’s adjustment of his shirt and shor ts after the laptops were no lo nger openly visible following the momentary break in the security footage; the images of defendan t exiting the store with a laptopshaped outline protruding from his shirt; the awkward movement or positioning of defendant’s arms as he left the store, reflecting an attempt to contain som ething under his shirt; and the subsequent failure to locate t he laptops in the store. Reversa l is unwarranted.

Defendant’s second and final argument on appeal is that the tr ial court improperly admitted prior-bad-acts evidence, MRE 404(b), regarding an act of retail fraud committed by defendant in 2001, in which he concealed a nail gun under his s hirt and left a hardware store without paying for the tool. Fir st, assuming any error in the admission of this evidence, it was harmless, as defendant has not shown the requisite prejudice, i .e., that it is more probable than not that defendant would have been acquitted absent the presume d error. MCL 769.26; People v Lukity , 460 Mich 484, 495; 596 NW2d 607 (1999). As gleaned from our discussion above, the evidence of defendant’s guilt was very strong, and admission of the 2001 retail fraud event was ultimately harmless. Moreover, the trial court did not err in admitting evidence regarding the

2001 act of retail fraud. The bad-acts evidence was admitted f or a proper purpose, i.e., to show a common scheme, plan, or system, and not to support a general pr opensity theory. MRE 404(b)(1); People v Sabin (After Remand) , 463 Mich 43, 55; 614 NW2d 888 (2000) . Further, the evidence was relevant to show that, contrary to defendant’s the ory of the case, the laptops were actually removed from the store by way of defendant hiding them under his shirt, as the current

2 The trial court instructed the jury consistent with M Crim JI 23.13, and defendant does not raise any instructional challenge.-4- and former acts were sufficiently similar to support an inferen ce that they manifested a common plan, scheme, or system. Id. at 59-68; MRE 401 and 402. And the probative value of the evidence was not substantially out weighed by the danger of unfa ir prejudice, Sabin , 463 Mich at 55-56, 70-71; MRE 403, considering that there was little danger that the evidence would be given undue or preemptive weight by the jury and that its admis sion was not inequitable, People

v Mills , 450 Mich 61, 75-76; 537 NW2d 909 (1995). Mor eover, the trial court instructed the jury not to consider the evidence for purposes of propensity, thereb y alleviating any danger of unfair prejudice. People v Roscoe , 303 Mich App 633, 646; 846 NW2d 402 (2014). 3

Affirmed.

/s/ Michael J. Kelly /s/ William B. Murphy

/s/ Joel P. Hoekstra

3 Assuming that the trial court erred in admitting the bad-acts evidence for the additional purpose of showing identity, this would not have precluded introduction of the evidence to show a common plan, scheme, or system. People v Coleman , 210 Mich App 1, 5; 532 NW2d 885 (1995) (“Evidence that is admissible for one purpose is not ina dmissible because its use for a different purpose is precluded.”). Also, any presumed associat ed instructional error was harmless. Finally, in light of our ruling, it is unnecessary t o address the prosecution’s argument that the bad-acts evidence was admissible under MCL 768.27 rega rdless of MRE 404(b).