If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

- 1

- 

### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee, UNPUBLISHED June 27, 2019

v No. 342121
Macomb Circuit Court

RICHARD JOHN CO FELL, LC No. 2017

- 002531

- FH

Defendant

- Appellant.

Before: M URRAY

, C .J., and S TEPHENS and S HAPIRO , JJ.

P ER C URIAM

.

Defendant appeals his jury trial conviction of breaking and entering a vehicle causing damage , MCL 750.356a(3). Defendant was sentenced, as a fourth habitual offender, MCL 769.12, to 34 months to 10 ye ars’ imprisonment. We affirm.

Kurt Latour’s truck was broken into while parked in a restaurant parking lot . Latour and his fiancée arrived at the restaurant around 10:00 p.m. on a Saturday evening. After being in the restaurant for approximately an hour Latour went out to his vehicle to get a sweatshirt. At th at time, his truck was intact and there was a small, dark, four

- door sedan backed into a parking spot
next to the driver’s side of L atour’s truck. Latour could see that there was a white male in the driver’s seat of the sedan, but he could not identify the person. Latour went back into the restaurant. Around 12:30 a.m., Latour went back outside to his truck, and discovered that the rear window on the driver’s side passenger door of his truck had been smashed in. Defendant’s fingerprint was found on the door handle of the door with the broken wind ow

.

Defendant first argues that the prosecutor improperly shifted the burden of proof b y asserting during closing argument that there was no reasonable explanation as to why- 2

- defendant’s fingerprint would be on Latour’s truck because it shifted the burden of proof to defendant. We disagree. 1

In evaluating claims of prosecutorial misconduct, we re view the prosecutor’s remarks in

context to determine whether the defendant was denied a fair trial

. People v Mullins , 322 Mich App 151, 172; 911 NW2d 201 (2017). “ A prosecutor may not imply in closing argument that the defendant must prove somethi ng or present a reasonable explanation for damaging evidence because such an argument tends to shift the burden of proof.” People v Fyda , 288 Mich App 446, 463

- 464; 793 NW2d 712 (2010). However “[t] he prosecutor’s statements are to be evaluated in light of defense arguments and the relationship the comments bear to the evidence
admitted at trial.” Mullins , 322 Mich App at 172 (citation and quotation marks omitted). “Generally, prosecutors are given great latitude regarding their arguments and are free t o argue the evidence and all reasonable inferences from the evidence as they relate to their theory of the

case.” Id . (citation and quotation marks omitted). Moreover, “a prosecutor’s argument that inculpatory evidence is undisputed does not constitute i mproper comment.” Fyda , 288 Mi ch App at 464.

D efendant argues that it was improper for the prosecutor to repeatedly state in closing argument that there had been “no reasonable explanation ” why defendant would have touched
Latour’s truck if he did not commit the crime

. Viewed in context, the prosecutor was not asserting that defendant had a duty to present evidence or defend against damaging evidence; rather, the remarks were to highlight the weakness of the defense theory in light of th e relevant
evidence. It was undisputed that defendant’s fingerprint was found on the door handle of the
door with the smashed window The defense initially set forth the argument that ther e were a number of possibilities that could have led to defendant’s fingerprint being on Latour’s truck. The prosecutor then challenged th is idea by recounting Latour’s testimony that he had never met defendant, that the truck was kept secured in the garage at home for most of the week, and that prior to arriving at the restaurant on the night of the incident, the truck had been kept in the driveway at the home of Latour’s fiancée, which was in a residential neighborhood away from
businesses. Moreover, the prosecutor relied on the e vidence showing that the finger print wa s “fresh,” i.e., made on the night of the crime. In sum, the prosecutor’s arguments were related to the defense theory

, supported by the evidence

, and did not improperly shift t he burden of proof to defendant. Accordingly, the prosecutor’s remarks were n ot plainly erroneous and did not deny
defendant a fair trial

.

Defendant also argues that trial counsel was ineffective for failing to object to the prosecutor’s remarks . We disagree. 2

1 “ Claims of prosecutorial misconduct are generally reviewed de novo to determine whether the
defendant was denied a fair trial. ” People v Dunigan , 299 Mich App 579, 588; 831 NW2d 243 (2013). Because defendant failed to preserve the issue of prosecutorial m isconduct, our review is for plain error affecting substantial rights. People v Mullins , 322 Mich App 151, 172; 911 NW2d 201 (2017).- 3

- “To establish a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the
defense.” People v Riley (After Remand) , 468 Mich 135, 140; 659 NW2d 61 1 (2003). A defense counsel’s performance is deficient if “it fell below an objective standard of reasonableness under prevailing professional norms.” Id . To show prejudice, “the defendant must show the existence of a reasonable probability that, but fo r counsel’s error, the result of the proceeding would have
been different.” People v Carbin , 463 Mich 590, 600; 623 NW2d 884 (2001).

Defendant argues that any well

- trained attorney would have objected to the prosecutor’s
statements discussed above

. A ssu ming defendant is correct, it is unlikely that an objection would have been sustained for the reasons stated above, i.e., the prosecutor was responding to the defense’s theory and drawing permissible inferences from the record. Moreover, defendant
fails t o show that the prosecutor’s remarks were outcome det erminative. The jury heard trial counsel’s argument that the fingerprint could have appeared on the door handle by mistake or for any number of innocent reasons. But the evidence supported the prosecut ion’s argument that an accidental or mistaken touching was unlikely

. Further, the trial court instructed the jury after closing arguments that it was the prosecution’s burden to prove each and every element of the crime beyond a reasonable doubt and defen dant was not required to prove his innocence or do anything

. For those reasons, defendant fails to show a reasonable probability that he would have been acquitted had his counsel objected to the prosecutor’s comments.

Defendant also argues that there was insufficient evidence to convict him of breaking and entering a vehicle causing damage

. We conclude that sufficient evidence was presented to support the verdict

. 3

Defendant does not contest any element of the crime o ther than identity as the perpetrator. “[I]dentity is an element of every offense,” People v Bass , 317 Mich App 241, 263; 893 NW2d 140 (2016), and circumstantial evidence and reasonable inferences arising from the
evidence can be sufficient to establish i dentity, id . at 264.

Defendant argues that the fingerprint alone was insufficient evidence to convict him because the print could have been left on the door handle at any point in time and not necessarily on the night of the incident. However, there was su bstantial circumstantial evidence presented

2 Because an evidentiary hearing has not been held on defendant’s claim of ineffective assistance of counsel, our review i s limited to mistakes apparent on the record. People v Solloway , 316 Mich App 174, 188; 891 NW2d 255 (2016). “ Whether a defendant has been denied the effective assistance of counsel is a mixed question of fact and constitutional law. ” Id . at 187

- 188.

“ Genera lly, a trial court’ s findings of fact, if any, are reviewed for clear error, and questions of
law are reviewed de novo .” Id . at 188.

3 In reviewing challenges to the sufficiency of the evidence, we view the evidence “ in the light
most favorable to the prosecution, to determine whether the trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. ” People v Gaines

, 306 Mich App 289, 296; 856 NW2d 222 (2014)

.- 4

- that the finger print was left during the commission of the crime. The print was left on the door that contained the broken window. Officer Gary Rowan testified that he arrived at the scene

soon after Latour’s vehicle was broken into and that there was a “pretty obvious’’ fingerprint on
the handle of the door with the broken window. And the finger print expert testified that fingerprints are fragile, explaining that prints are made up of oil and sweat and thus affected by
environmental factors. In addition , Lat our and defen dant did know each other and Lat our rarely drove his truck in the time leading to the crime

. Thus, there was strong circumstantial evidence that defendant touched the vehicle during the comm ission of the breaking and entering.

Moreover, about a month after the crime, defendant was stopped for a civil infraction

w hile driving a four

- door Chevy s edan. This evidence supported the verdict for two reasons. First, it indicated that defendant did not own a truck and therefore did not mistakenly believe that Latour’s truck was his own. Second, Latour reported that there was a man in a small, dark, four

door sedan parked next to his truck within an hour before the crime was committed. Although the description provided by Latour of the man and the vehicle at the scene of the crime was very general, defendant and the Chevy sedan fit that description. In sum, viewing the evidence in a light most favorable to the prosecution, there was sufficient e vidence for the jury to find that
defendant was the individual who broke into Latour’s truck.

Finally, defendant argues that the evidence that he was driving a four

- door Chevy sedan
about a month after the crime was improperly admitted under MRE 404(b). This argument
fails. 4

MRE 404(b)(1) sets forth the standard for the adm ission of other

- acts evidence:

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 system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wron gs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.

The Supreme Court has articulated the following test for the adm ission of other

- acts evidence:

First, that the evidence be offered for a proper purpose under Rule 404(b) ; second, that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the probative value of the evidence is not substantially outweighed by unfair prejudice; fourth, that the trial court may, upon request, provide a limiting

4 “ A trial court ’ s decision to admit or exclude evidence is reviewed for an abuse of discretion. ” People v Burns , 494 Mich 104, 110; 832 NW2d 738 (2013). A trial court abuses its discretion when the court’s decision is outside the range of reasonable and principled outcomes. People v

Rose , 28 9 Mich App 499, 524; 808 NW2d 301 (2010)

.- 5

- inst ruction to the jury. [ People v Denson , 500 Mich 3 85, 398; 902 NW2d 306 (2017) (citation omitted) .]

Here , the evidence was offered to show absence of mistake . The evidence was relevant to that proper non

- character purpose because it indicated that def end ant did not own a truck and
therefore would not have had a reason to mistakenly touch Latour’s truck. Further, a lthough the description that Latour provided of the small, dark, four

- door vehicle at the scene was vague, it matched the description of the ve hicle defendant was driving. Therefore, the evidence was also relevant to identifying defendant as the individual parked outside Latour’s truck immediately
before the crime

. With respect third element, the trial court found that the evidence was not prej udicial. Although the evidence was of a somewhat low probative value due to the vague description of the vehicle at the scene, the little probative value that it did have was not substantially outweighed by the danger of unfair prejudice. For those reaso ns , the trial court did
not abuse its discretion in adm itting the evidence under MRE 404(b).

Defendant also argues that the trial court in admitting evidence that the Chevy sedan had an obscured vehicle identification number (VIN). The vehicle was registered to defendant’s
fiancé. On the second day of trial, Detective Christian Madajczyk went to the fiancé’s residence
and took photographs of the vehicle showing an obscured VIN number. Defendant objected to Madajczyk’s testimony explaining why a vehicle would have an obscured VIN number . T he trial court found that there was evidence that the Chevy sedan had possibly been the vehicle at the crime scene, and thus, the evidence of the obscured VIN was relevant and probative because
it tended to s how that someone was attempting to conceal the identity of the vehicle

.

We agree with defendant that the trial court abused its discretion in allowing the prosecution to elicit testimony regarding the obscured VIN. The evidence of the obscured VIN

was o f little relevance, especially considering that Madajczyk took the pictures that depicted an obscured VIN in November 2017, which was approximately a year and a half after Latour’s
truck was broken into. And the evidence’s slight probative value was substa ntially outweighed by the prejudice to defendant. See MRE 403. However, we cannot conclude that the trial court’s

error was , more probably than not, outcome determinative. See Denson , 500 Mich at 396. As discussed, there was uncontested evidence that defendant’s fingerprint was found on the door handle of door that had been broken into. And there was strong circumstantial evidence that defendant left the finger print on the night of crime, allowing for the reasonable inference that he
committed the cr ime. Thus, even absent the admission of evidence regarding the obscured VIN, there was sufficient evidence to convict defendant, and therefore, the admission of the obscured
VIN evidence was harmless error and does not warrant reversal.

Affirmed.

/s/ Ch ristopher M. Murray /s/ Cynthia Diane Stephens /s/ Douglas B. Shapiro