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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED December 30, 2014

V No. 317324 Wayne Circuit Court DALE FREEMAN, LC No. 13-000447-FC

Defendant-Appellant.

Before: M URRAY , P.J., and S AAD and H OEKSTRA , JJ.

P ER C URIAM

. A jury convicted defendant of viol ating MCL 750.316(1)(b), MCL 750.110a(2), MCL 750.413, and MCL 750.529. For the reasons stated below, we affirm.

I. FACTS AND PROCEDURAL HISTORY

On December 7, 2011, defendant and his half-b rother, Mercedes Flemister, embarked on a crime spree in Detroit. Firs t, they stole a minivan. They then robbed a woman, at gunpoint, at a gas station. Finally, while looking for other victims, they saw a lone man walking down the street to work. Defendant and Flemister abducte d the man and forced him to take them to his home. After arriving at his hous e, Flemister went inside with the victim, while defendant remained in the stolen car. 1 In the course of the robbery, Fl emister shot and killed the victim.

The prosecution subsequently charged defenda nt with first-degree felony murder, MCL 750.316(1)(b), first-degree home invasion, MCL 750.110a(2), unlawfully driving away an automobile, MCL 750.413, and two counts of armed robbery, MCL 750.529. 2 Among other things, defendant argued that he was merely pres ent at the crime scenes and did not aid or abet Flemister in committing the offenses—an argument that the jury did not find credible.

1 Gunshot wounds from an altercation rendere d defendant paraplegic, but obviously, did not impair his zeal for criminal activity.

2 Flemister was also accused of the above offe nses, and was tried toge ther with defendant.-2- At trial, over defendant’s objections, mu ltiple witnesses testified to past robberies committed by defendant that involved the use of vehicles and firearms. Prior to hearing testimony on defendant’s other crimes, the trial cour t instructed the jury to “be very careful only to consider” the evidence of other crimes, “for certain purposes” such as the “plan, system, or characteristic scheme [defendant] had us ed before.” The court further stated:

You must not consider this evidence fo r any other purpose. For example, you must not decide that it s hows that the defendants are bad people or that they are likely to commit crimes.

You must not convict the defendant here just because you think that he is guilty of other bad conduct. All of the eviden ce must convince you beyond a reasonable doubt that the defendants committed the alleged crimes here, or you must find them not guilty.

The jury convicted defenda nt of the charges mentione d above, and the trial court sentenced him to concurrent terms of life impr isonment for the felony-murder conviction, 60 to 100 years each for the robbery convictions, 10 to 20 years for home invasion conviction, and three to five years for th e driving away conviction.

On appeal, defendant argues that the trial co urt erred when it: (1) admitted evidence of other crimes committed by defendant in violation of MRE 404(b); and (2) sentenced him for his armed robbery conviction outside of the sentenci ng guidelines without expl aining its departure.

II. STANDARD OF REVIEW

A trial court’s decision on whether to admit evidence of other bad acts is reviewed for an abuse of discretion. People v Kahley , 277 Mich App 182, 184; 744 NW 2d 194 (2007). “A trial court abuses its discretion when it fails to select a principled outcome from a range of reasonable and principled outcomes.” Id.

The proper application of the statutory senten cing guidelines is a question of law that is reviewed de novo. People v Hegwood , 465 Mich 432, 436; 636 NW2d 127 (2001). However, defendant did not make a motion fo r resentencing in the trial court, or ask our Court to remand the issue, and it is accordingly unpreserved. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999). Unpreserved issues are reviewed for plain error affecting substantial rights. Id . at 763. Where plain error is shown, the re viewing court should reverse only when the defendant is actually innocent or the error seriously affected th e fairness, integrity, or public reputation of judicial proceedings. Id.

III. ANALYSIS

A. MRE 404(B)

MRE 404(b) mandates that:-3- (1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or syst em in doing an act, knowledge, identity, or absence of mistake or acc ident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.

Accordingly, evidence of prior bad acts is admissible if it is: (1) offered to prove “something other than a char acter or propensity theory” 3 ; (2) relevant; and (3) its probative value is not “substantially outweighed by unfair prejudice under MRE 403.” People v Knox , 469 Mich 502, 509; 674 NW2d 366 (2004).

Relevant evidence is evidence that makes “a ma terial fact at issue more probable or less probable than it would be without the evidence.” People v Crawford , 458 Mich 376, 387; 582 NW2d 785 (1998). Relevant evidence may be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice . . .” MRE 403 (emphasis added). “In [the] context [of MRE 403], prejudice means more than simply damage to the opponent’s cause. A party’s case is always damaged by evidence that the facts are contrary to hi s contentions, but that cannot be grounds for exclusion.” People v Vasher , 449 Mich 494, 501; 537 NW2d 168 (1995). “Rule 403 determinations are best left to a co ntemporaneous assessment of the presentation, credibility, and effect of te stimony by the trial judge.” People v Blackston , 481 Mich 451, 462; 751 NW2d 408 (2008) (internal quotation marks omitted).

Here, three witnesses testified as to other robberies defendant either committed or in which he was involved. The prosecution offere d the testimony to show a “scheme, plan, or system” defendant used to rob his victims, an d the testimony demonstrated that defendant did indeed have a “scheme, plan, or system” for his robberies, which he executed in the charged offenses. The incidents described in the te stimony, which occurred both before and after defendant was rendered paraplegic, variously involved: (1 ) use of a motor vehicle to initiate an altercation that led to a robbery; (2) use of a motor vehicle to escape from a robbery; (3) firearms; (4) the threat of violence; (5) the actua l use of violence; and (6 ) the presence of both defendant and Flemister.

This testimony was certainly relevant, becau se it tended to make “a material fact at issue”—whether defendant aided and abetted two armed robberies, one of which resulted in murder—“more probable or less probable th an it would be wit hout the evidence.” Crawford

, 458 Mich at 387. Nor was its probative value “ substantially outweighed by the danger of unfair

3 Examples of valid uses of other acts evidence include other acts that show proof of “intent, preparation, scheme, plan, or system.” MRE 404(b). Evidence of “similar misconduct” is properly admissible because it “is logically relevant to show that the charged act occurred where the uncharged misconduct and the charged offe nse are sufficiently similar to support an inference that they are manifestations of a common plan, scheme, or system.” People v Sabin (After Remand) , 463 Mich 43, 63; 614 NW2d 888 (2000).-4- prejudice . . .” MRE 403 (em phasis added). The fact that the witness testimony undermined defendant’s argument that he did not aid or ab et the robberies does not make it “unfair”—it merely tended to show “that the facts [were] contrary to his contentions.” Vasher , 449 Mich at 501.

In any event, as noted, the trial court handl ed the witness testimony with an abundance of caution, and issued a thorough prelim inary instruction to the jury. “It is well established that jurors are presumed to follow their instructions.” People v Graves , 458 Mich 476, 486; 581 NW2d 229 (1998). The instructions provided here mitigated any tendency of the other bad-acts evidence to cause defendant unfair prejudice.

Accordingly, the trial court properly admitte d the witness testimony on defendant’s other crimes under MRE 404(b), and his arguments to the contrary have no merit.

B. SENTENCING GUIDELINES

MCL 750.529 codifies the crime of armed robbery, and provides:

A person who engages in conduct proscr ibed under [MCL 750.530] and who in the course of engaging in that conduc t, possesses a dangerous weapon or an article used or fashioned in a manner to lead any person pr esent to reasonably believe the article is a dangerous weapon, or who represents orally or otherwise that he or she is in po ssession of a dangerous w eapon, is guilty of a felony punishable by imprisonment for l ife or for any term of years . [Emphasis added.]

A criminal that commits first degree murder must serve a mandatory life sentence and is forever ineligible for parole, 4 and such mandatory, non-parolable life sentences are not governed by the sentencing guidelines. MCL 769.34(5).

Here, defendant unconvincingly argues that his sentence of 60 to 100 years for each of the armed robbery convictions under MCL 750.529 exceeded the recommended range under the sentencing guidelines, and demands that he be resentenced within the guidelines, or with an explanation of the reasons for the departure. 5 Defendant’s argument is based on th e incorrect presumption that the sentencing guidelines apply to his sentence. 6

4 MCL 750.316(1). A limited exception exists if th e criminal committed the murder before his eighteenth birthday. See MCL 769.25.

5 As noted, defendant did not object to his senten cing at the appropriate ti me, which renders this issue unpreserved. Carines , 460 Mich at 763-764.

6 Defendant offers no support for this presump tion. “An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims.” Houghton ex rel Johnson v Keller , 256 Mich App 336, 339; 662 NW2d 854 (2003).-5- Because defendant must serve life imprisonm ent with no possibility of parole for his first-degree murder conviction, a concurrent lesser sentence will have no bearing on his actual term of incarceration. The senten ce for murder has thus rendered defendant’s other sentences, including those for armed robbery, moot. See People v Rutherford , 208 Mich App 198, 204; 526 NW2d 620 (1994). Because defendant cannot show that any error in this regard seriously affected his substantial rights, we decline to give this unpreser ved issue further consideration.

Affirmed.

/s/ Christopher M. Murray /s/ Henry William Saad /s/ Joel P. Hoekstra