People of Michigan v. Marsha Sharlene Rutherford ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 17, 2019
Plaintiff-Appellee,
v No. 343185
Oakland Circuit Court
MARSHA SHARLENE RUTHERFORD, LC No. 2016-259897-FH
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 343188
Oakland Circuit Court
MARSHA SHARLENE RUTHERFORD, LC No. 2016-260317-FH
Defendant-Appellant.
Before: METER, P.J., and O’BRIEN and SWARTZLE, JJ.
PER CURIAM.
These consolidated appeals involve defendant’s eight convictions arising from two cases
that were consolidated for a single jury trial. In each case, the jury convicted defendant of
identity theft, MCL 445.65, conspiracy to commit identity theft, MCL 750.157a; MCL 445.65,
obtaining, possessing, or transferring personal identifying information with intent to commit
identity theft, MCL 445.67, and attempt to obtain money of $1,000 or more but less than $20,000
by false pretenses, MCL 750.218(4). In LC No. 2016-259897-FH, the trial court sentenced
defendant to prison terms of 23 months to 5 years for the identity theft conviction, six months to
five years for the conspiracy conviction, six months to three years for the unlawful use of
personal identifying information conviction, and 6 to 30 months for the attempted false pretenses
conviction. In LC No. 2016-260317-FH, the court sentenced defendant to prison terms of 17
months to 5 years for the identity theft conviction, six months to five years each for the
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conspiracy and unlawful use of personal identifying information convictions, and 6 to 30 months
for the attempted false pretenses conviction. In both cases, the trial court ordered that
defendant’s sentence for identity theft be served consecutive to her other three sentences, which
were to be served concurrently. Defendant appeals as of right in both cases. We remand each
case for further proceedings to allow the trial court to articulate its rationale for imposing
consecutive sentences or to issue a judgment of sentence to reflect that defendant’s sentences are
to be served concurrently. But in all other respects, we affirm.
I. FACTUAL OVERVIEW
Defendant’s eight convictions arise from her use of other persons’ personal identifying
information to fraudulently obtain money or credit in March and April 2010 in Oakland County.
Defendant’s convictions in LC No. 2016-259897-FH (Docket No. 343185) arise from her use of
Roslyn Jackson’s personal identifying information to obtain fraudulent loans and credit cards,
and from conspiring with Delores Mitchell to attempt to obtain a fraudulent loan using the social
security number of Marilyn Hunt. Defendant’s convictions in LC No. 2016-260317-FH (Docket
No. 343188) arise from her use of Clay Weddell’s personal identifying information in a
fraudulent manner to obtain money, and from conspiring with Timeka Tandy and Latonya
Richardson to attempt to obtain a loan using Weddell’s social security number. At trial, the
defense argued that there was no evidence that defendant was involved in obtaining any
fraudulent loans, and that Jackson’s testimony was not credible.
II. MOTION FOR A DIRECTED VERDICT
Defendant first argues that the prosecution failed to present sufficient evidence to support
convictions for the charged offenses, and therefore the trial court erred by denying her motion for
a directed verdict of acquittal on all charges. We disagree.
“When reviewing a trial court’s decision on a motion for a directed verdict, this Court
reviews the record de novo to determine whether the evidence, viewed in the light most
favorable to the prosecution, could persuade a rational trier of fact that the essential elements of
the crime charged were proved beyond a reasonable doubt.” People v Parker, 288 Mich. App.
500, 504; 795 NW2d 596 (2010). “A challenge to the trial court’s decision on a motion for a
directed verdict has the same standard of review as a challenge to the sufficiency of the evidence,
except that only the evidence presented before the motion for a directed verdict was made is
considered.” People v Schultz, 246 Mich. App. 695, 702; 635 NW2d 491 (2001).
A. IDENTITY THEFT
As applicable to this case, the elements of identity theft are: (1) using or attempting to use
the personal identifying information of another person, (2) to obtain credit or money, (3) with the
intent to defraud or violate the law. MCL 445.65(1)(a)(i). “Personal identifying information” is
defined by statute, in relevant part, as
a name, number, or other information that is used for the purpose of identifying a
specific person or providing access to a person’s financial accounts, including, but
not limited to, a person’s name, address telephone number, driver license or state
personal identification number [or] social security number. [MCL 445.63(q).]
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Circumstantial evidence and reasonable inferences arising from the evidence can sufficiently
prove the elements of a crime, including the defendant’s state of mind, knowledge, or intent.
People v Kanaan, 278 Mich. App. 594, 622; 751 NW2d 57 (2008).
In LC No. 2016-259897-FH, the prosecution presented evidence that Jackson’s nephew
hand-delivered Jackson’s personal identifying information, including Jackson’s driver’s license
and social security number, to defendant on Jackson’s behalf to determine if Jackson would be
able to qualify for a loan to purchase a home. Soon thereafter, Jackson’s information was used
to apply for loans and credit cards, some of which were in defendant’s name or the name of her
company, PHC Global. For one of the Internet loan applications, defendant went to the Genisys
Credit Union and identified herself as Jackson. Defendant admitted to the investigating detective
that she had submitted the loan application to Genisys in Jackson’s name, claiming that Jackson
was her client. However, Jackson had not given defendant authorization to obtain loans or credit
cards using her information. A jury could reasonably infer from this evidence that defendant
used, or attempted to use, Jackson’s personal identifying information to obtain money or credit
with the intent to defraud Jackson and Genisys. The evidence that defendant refused to return
Jackson’s personal identifying information upon request, and that, after police involvement,
defendant attempted to have Jackson sign documents giving her authorization to use Jackson’s
information, further supports a finding of identity theft. Thus, viewed in the light most favorable
to the prosecution, the evidence was sufficient to support defendant’s conviction of identity theft
in LC No. 2016-259897-FH.
In LC No. 2016-260317-FH, the prosecution presented evidence that defendant, working
with Richardson and Tandy, prepared an Internet loan application in the name of a fictitious
person, “Jalie Carradine,” using the social security number of Weddell. Defendant was aware
that the social security number did not belong to Carradine. Weddell, who lived in Oklahoma,
was unaware that his number was being used and had not authorized defendant to use it.
Defendant submitted the loan application containing Weddell’s social security number to
Genisys in an attempt to procure a loan for $8,500. Defendant was to receive $2,500 from the
loan proceeds as her payout. Again, a jury could reasonably infer from this evidence that
defendant knowingly submitted a fraudulent loan application using Weddell’s personal
identifying information without his permission with the intent to defraud Genisys to obtain
money. Accordingly, viewed in the light most favorable to the prosecution, the evidence was
sufficient to support defendant’s conviction of identity theft in LC No. 2016-260317-FH.
B. CONSPIRACY TO COMMIT IDENTITY THEFT
Conspiracy is a specific intent crime, requiring the intent to combine with others and the
intent to accomplish an illegal objective. MCL 750.157a; People v Mass, 464 Mich. 615, 629;
628 NW2d 540 (2001). To prove the intent to combine with others, it must be shown that the
intent, including knowledge, was possessed by more than one person. People v Blume, 443 Mich.
476, 482, 485; 505 NW2d 843 (1993). For intent to exist, the defendant must know of the
conspiracy, know of the objective of the conspiracy, and intend to participate cooperatively to
further that objective. Id. Direct proof of a conspiracy is not essential; a conspiracy may be
proven by circumstantial evidence or by reasonable inference, and no formal agreement is
required. People v Justice (After Remand), 454 Mich. 334, 347; 562 NW2d 652 (1997); People v
Cotton, 191 Mich. App. 377, 393; 478 NW2d 681 (1991).
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In LC No. 2016-259897-FH, the prosecution presented evidence that defendant supplied
the social security number for an Internet loan application in Mitchell’s name. The social
security number did not belong to Mitchell, but to Hunt, who lived in New Mexico. Defendant
admitted to the investigating detective that she submitted the loan application in Mitchell’s name.
After the electronic submission, defendant and Mitchell went to the credit union to fill out the
necessary paperwork and obtain the loan disbursement. Defendant identified herself to a credit
union employee as Mitchell’s relative who was there to assist Mitchell with the paperwork.
Defendant’s and Mitchell’s interactions and concordant behavior was evidence of their concert
of action, which supported an inference of conspiracy to use Hunt’s personal information to
fraudulently obtain money from the credit union. Viewed in a light most favorable to the
prosecution, the evidence was sufficient to show that defendant conspired with Mitchell to
commit identity theft in LC No. 2016-259897-FH.
In LC No. 2016-260317-FH, the evidence discussed in part II(A) also provided a basis
for the jury to infer that defendant conspired with Tandy and Richardson to commit identity
theft. Viewed in a light most favorable to the prosecution, the evidence that defendant, Tandy,
and Richardson met and agreed to submit a fraudulent loan application, using a fictitious name
and Weddell’s social security number (which they had no permission to use), in an attempt to
deceitfully obtain loan proceeds of $8,500 (of which defendant was to receive $2,500), was
sufficient to establish that defendant, Tandy, and Richardson had agreed to work together with
the specific intent to commit identity theft. Further supporting a finding of a conspiracy is the
evidence that, after Richardson no longer wanted to go through with obtaining the loan,
defendant demanded her money because she had done her part by submitting the loan
application. Thus, sufficient evidence was presented to sustain defendant’s conviction of
conspiracy to commit identity theft in LC No. 2016-260317-FH.
C. UNLAWFUL USE OF PERSONAL IDENTIFYING INFORMATION
The prosecution presented sufficient evidence in both cases to support defendant’s
convictions of obtaining personal identifying information with the intent to commit identity theft.
MCL 445.67(d) provides, in relevant part, that a person shall not “[o]btain or possess, or attempt
to obtain or possess, personal identifying information of another person with the intent to use that
information to commit identity theft or another crime.” As previously noted, for purposes of this
statute, “personal identifying information” includes “a person’s name,” “driver license,” and
“social security number.” MCL 445.63(q). In LC No. 2016-259897-FH, there was evidence that
defendant possessed Jackson’s personal identifying information, including her name, a copy of
her driver’s license, and her social security number, and, as discussed earlier, used this personal
identifying information with the intent to commit, and actually committed, identity theft.
Similarly, in LC No. 2016-260317-FH, defendant possessed the social security number of
Weddell, and, as also discussed earlier, used this personal identifying information with the intent
to commit identity theft. Viewed in a light most favorable to the prosecution, this evidence was
sufficient to support defendant’s two convictions under MCL 445.67(d).
D. ATTEMPTED FALSE PRETENSES
An attempt to commit an offense consists of two elements: “(1) an intent to do an act or
to bring about certain consequences which would in law amount to a crime; and (2) an act in
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furtherance of that intent which, as it is most commonly put, goes beyond mere preparation.”
People v Jones, 443 Mich. 88, 100; 504 NW2d 158 (1993) (quotation marks and citation
omitted). The elements of false pretenses are that: (1) defendant made a false statement or used a
false pretense1 relating to a past or existing fact; (2) defendant knew of the falsity at the time; (3)
defendant had the intent to defraud or cheat when she made the statement or used the pretense;
(4) the victim detrimentally relied on the false pretense or false statement and suffered a loss of
money; and (5) defendant obtained something from the victim valued at $1,000 or more but less
than $20,000. MCL 750.218(4)(a); People v Lueth, 253 Mich. App. 670, 680-681; 660 NW2d
322 (2002). For defendant to be convicted of attempted false pretenses, the prosecution must
have proved beyond a reasonable doubt that defendant (1) had the specific intent to commit false
pretenses and (2) committed an overt act toward the commission of the crime beyond mere
preparation. See MCL 750.92; People v Thousand, 465 Mich. 149, 164; 631 NW2d 694 (2001).
In LC No. 2016-259897-FH, the prosecution presented evidence that defendant submitted
an Internet loan application to Genisys, seeking $10,000, in Mitchell’s name and using Hunt’s
social security number, which defendant provided in the application. Defendant had no
authorization to use Hunt’s social security number and the number did not belong to the name on
the application (Mitchell). Thus, the loan application contained fraudulent representations.
Defendant thereafter accompanied Mitchell to the credit union where she falsely identified
herself as Mitchell’s relative, as defendant and Mitchell sought to obtain the proceeds from the
fraudulent loan application. Viewed in a light most favorable to the prosecution, this evidence
was sufficient to enable a rational trier of fact to find that the prosecution proved the elements of
attempted false pretenses beyond a reasonable doubt.
Similarly, in LC No. 2016-260317-FH, the evidence that defendant prepared an Internet
loan application, seeking $8,500, knowingly using a fictitious name and Weddell’s social
security number without his authorization, and submitted this application that contained the false
information to Genisys with the intent to obtain money, was sufficient to support defendant’s
conviction of attempted false pretenses in that case.
E. WEIGHT AND CREDIBILITY
In sum, the reasonable inferences arising from the evidence, considered together and
viewed in a light most favorable to the prosecution, were sufficient to enable the jury to find
beyond a reasonable doubt that defendant committed the charged offenses. Defendant’s
challenges to the evidence, including what inferences should have been drawn from the
evidence, are related to the weight of the evidence rather than its sufficiency. People v Scotts, 80
Mich. App. 1, 9; 263 NW2d 272 (1977). These same challenges were presented to the jury during
trial, and we will not interfere with the trier of fact’s role of determining issues of weight and
credibility. People v Unger, 278 Mich. App. 210, 222; 749 NW2d 272 (2008). Defendant
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A false pretense “includes, but is not limited to, a false or fraudulent representation, writing,
communication, statement, or message, communicated by any means to another person, that the
maker of the representation, writing, communication, statement, or message knows is false or
fraudulent.” MCL 750.218(11).
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appears to ignore that when evaluating the sufficiency of evidence, this Court is required to
resolve all conflicts in the evidence in favor of the prosecution, People v Lockett, 295 Mich. App.
165, 180; 814 NW2d 295 (2012), that this deferential standard of review is the same whether the
evidence is direct or circumstantial, People v Nowack, 462 Mich. 392, 400; 614 NW2d 78 (2000),
and that it is well established that “circumstantial evidence and reasonable inferences arising
from that evidence can constitute satisfactory proof of the elements of a crime,” id. (citation
omitted). Consequently, we reject defendant’s appellate challenges to the sufficiency of the
evidence in support of her convictions.
III. SENTENCE
A. SCORING OF OV 19
In her next claim, defendant argues that the trial court erroneously scored offense variable
(OV) 19 of the sentencing guidelines. We disagree. When reviewing a trial court’s scoring
decision, the trial court’s “factual determinations are reviewed for clear error and must be
supported by a preponderance of the evidence.” People v Hardy, 494 Mich. 430, 438; 835 NW2d
340 (2013). “Whether the facts, as found, are adequate to satisfy the scoring conditions
prescribed by statute, i.e., the application of the facts to the law, is a question of statutory
interpretation, which an appellate court reviews de novo.” Id.
OV 19 addresses interference with the administration of justice. The trial court must
score 10 points if “[t]he offender otherwise interfered with or attempted to interfere with the
administration of justice.” MCL 777.49(c). A defendant interferes with the administration of
justice by “oppos[ing] so as to hamper, hinder, or obstruct the act or process of administering
judgment of individuals or causes by judicial process.” People v Hershey, 303 Mich. App. 330,
343; 844 NW2d 127 (2013). “Our Supreme Court has determined that the phrase ‘interfered
with or attempted to interfere with the administration of justice’ is broader than the concept of
obstruction of justice and that conduct subject to scoring under OV 19 ‘does not have to
necessarily rise to the level of a chargeable offense . . . .’ ” People v Passage, 277 Mich. App.
175, 179-180; 743 NW2d 746 (2007) (citation omitted). When scoring OV 19, a court may
consider the defendant’s conduct after the completion of the sentencing offense. People v Smith,
488 Mich. 193, 200; 793 NW2d 666 (2010).
The trial court assessed 10 points for OV 19 on the basis of its finding that, at a bond
hearing, defendant lied to the court about entering a bank, which she was prohibited from doing
as a condition of her bond. Defendant does not dispute that lying to the court in this context
qualifies as “otherwise interfer[ing] with or attempt[ing] to interfere with the administration of
justice” under OV 19, or that the evidence on which the trial court relied (defendant’s sworn
statement and video evidence from the bond hearing) was false. Rather, she asserts that,
although she was “somewhat inarticulate in her explanation” at sentencing, she merely
misunderstood the court’s question and did not intentionally lie. She argues that, given her
explanation, OV 19 was not supported by a preponderance of the evidence.
Contrary to defendant’s contention, the trial court was not required to credit her
explanation. The court had already clearly explained that defendant’s sworn statement that she
had not entered a bank and the video evidence showing that she had in fact done so supported a
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finding that she lied to the court. The court was not required to further inquire into defendant’s
attempt to explain or justify her conduct. Moreover, defendant does not explain what valuable
evidence could have been disclosed upon further inquiry. Indeed, defendant’s proffered
explanation was clear—she claimed that she misunderstood the question at the bond hearing—
and the court was well able to evaluate the validity of this offered excuse. The trial court did not
clearly err by finding that the 10-point score was warranted for OV 19. Hardy, 494 Mich. at 438.
B. CONSECUTIVE SENTENCES
Defendant also challenges the trial court’s decision in both cases to order that her
sentence for identity theft be served consecutive to her other three sentences. The prosecution
concedes, and we agree, that remand for further proceedings is necessary.
“In Michigan, concurrent sentencing is the norm, and a consecutive sentence may be
imposed only if specifically authorized by statute.” People v Ryan, 295 Mich. App. 388, 401; 819
NW2d 55 (2012) (quotation marks and citation omitted). The parties do not dispute that MCL
445.69(4) gave the trial court discretion to impose a consecutive sentence for defendant’s
identity theft conviction. “[T]he decision to impose a consecutive sentence when not mandated
by statute is reviewable for an abuse of discretion.” People v Norfleet, 317 Mich. App. 649, 654;
897 NW2d 195 (2016). To facilitate appellate review, a trial court must “articulate on the record
the reasons for each consecutive sentence imposed.” Id. at 664-665. The court is required to
“give particularized reasons” when imposing a consecutive sentence. Id. at 666.
As the prosecution concedes, the record shows that the trial court failed to articulate any
particularized reasons for the consecutive sentences imposed. Therefore, remand is necessary.
Norfleet, 317 Mich. App. at 664-665. On remand, the trial court must articulate its rationale for
imposing consecutive sentences or correct the judgments of sentence to reflect that the sentences
are to be served concurrently.
IV. DEFENDANT’S STANDARD 4 BRIEF
Defendant raises additional issues in a pro se supplemental brief filed pursuant to
Supreme Court Administrative Order No. 2004-6, Standard 4. She argues that advisory
counsel’s conduct infringed on her constitutional right of self-representation, and that she was
denied a fair trial because of both prosecutorial and judicial misconduct. We conclude that
defendant is not entitled to a new trial on the basis of these issues.
A. SELF-REPRESENTATION
To properly preserve an issue for appeal, a defendant must timely object in the trial court,
even if the right asserted is constitutional in nature. People v Carines, 460 Mich. 750, 752-753,
763-764; 597 NW2d 130 (1999). As defendant acknowledges, she did not argue below that
standby advisory counsel interfered with or otherwise violated her constitutional right of self-
representation. Therefore, this issue is unpreserved. We review unpreserved claims of
constitutional error for plain error affecting substantial rights. Id. at 762-763.
During the proceedings, defendant was represented by different attorneys. Immediately
leading up to trial, defendant was represented by Attorney John Holmes. On the first day of trial,
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defendant elected to represent herself with the assistance of Holmes as standby advisory counsel.
Defendant now complains that Holmes’ conduct, acting as advisory counsel, derailed her ability
to effectively represent herself, thereby violating her constitutional right of self-representation.
Defendant first complains that Holmes disrupted her defense by failing to subpoena
defense witnesses Caronda Taylor, Michael Dorsey, Attorney Darryl Mitchell (one of
defendant’s former counsels), and Tandy. Generally, “ ‘standby counsel is not ‘counsel’ within
the meaning of the Sixth Amendment.’ ” People v Willing, 267 Mich. App. 208, 228; 704 NW2d
472 (2005) (quotation omitted). Standby counsel “may offer advice, but . . . does not speak for
the defendant or bear responsibility for [her] defense,” id., and the defendant must accept the
consequences of representing [her]self, People v Kevorkian, 248 Mich. App. 373, 422; 639 NW2d
291 (2001). For the actions complained of here, however, Holmes was apparently still
representing defendant and accepted responsibility to contact witnesses on defendant’s behalf.
Thus, for this particular issue, Holmes was counsel for defendant and, therefore, is held to the
standards of trial counsel. The pertinent question is whether defendant can demonstrate that
Holmes’ representation was constitutionally deficient.
Because defendant failed to raise an ineffective assistance of counsel claim in the trial
court in connection with a motion for a new trial or request for an evidentiary hearing, our
review of this claim is limited to mistakes apparent on the record. People v Heft, 299 Mich. App.
69, 80; 829 NW2d 266 (2012). “To demonstrate ineffective assistance of counsel, a defendant
must show that his or her attorney’s performance fell below an objective standard of
reasonableness under prevailing professional norms and that this performance caused him or her
prejudice.” People v Nix, 301 Mich. App. 195, 207; 836 NW2d 224 (2013) (citation omitted).
“To demonstrate prejudice, a defendant must show the probability that, but for counsel’s errors,
the result of the proceedings would have been different.” Id.
This claim is without merit. Although defendant asserts that Holmes should have
subpoenaed the proposed witnesses because they would have “exonerated” her, she has not
provided any witness affidavits, or identified any other evidence of record, establishing that these
witnesses would have testified at trial and provided favorable testimony. Absent such a showing,
defendant cannot establish that she was prejudiced by Holmes’ failure to subpoena the proposed
witnesses for trial.
Defendant next complains that advisory counsel acted “in concert” with the prosecutor in
“disregard to her self-representation status” when he assisted in redacting the preliminary
examination testimony of Richardson, who was deemed to be an unavailable witness under MRE
804. She further complains that advisory counsel gave her “scant procedural advice” on this
matter. A defendant who represents herself “must be allowed to control the organization and
content of [her] own defense, to make motions, to argue points of law, to participate in voir dire,
to question witnesses, and to address the court and the jury at appropriate points in the trial.”
McKaskle v Wiggins, 465 U.S. 168, 174; 104 S. Ct. 944; 79 L. Ed. 2d 122 (1984). Whether a
defendant’s right to self-representation has been violated depends “on whether the defendant had
a fair chance to present [her] case in [her] own way.” Id. at 177.
This issue is also without merit. It is apparent from the record that defendant’s right of
self-representation was respected. Advisory counsel oversaw a basic procedural matter—
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redacting then codefendant Tandy’s attorney’s cross-examination of Richardson from the
preliminary examination transcript. The United States Supreme Court has indicated that a
defendant’s rights are not violated when advisory counsel assists a pro se defendant with routine
procedural or evidentiary issues. See Wiggins, 465 U.S. at 183. Although defendant complains
that advisory counsel’s procedural advice regarding MRE 804 was “scant,” the trial court
explained the court rule to defendant on the record. Also, the trial court observed, and advisory
counsel agreed, that defendant’s position on the matter “needs to be from [defendant], because
she’s acting as her own attorney.” Defendant then stated her position, which was that the
introduction of Richardson’s preliminary examination testimony was “beneficial to [her], so
we’ll go ahead” and that she had “[n]o objection” to the introduction of that testimony.
The record otherwise demonstrates that defendant was afforded her right of self-
representation. Defendant gave an opening statement, cross-examined the prosecution’s
witnesses, made objections, argued her positions, and presented a closing argument. At times,
advisory counsel assisted defendant by explaining certain rules, but he did not take over the case
in any manner. Defendant clearly controlled the organization and content of her own defense.
In her last complaint, defendant asserts that advisory counsel was not “acting in her best
interest” because he “issued piecemeal copies” of discovery to her rather than providing “her the
entire discovery file.” However, defendant has not indicated what discovery was withheld or
delayed, or how the manner in which discovery was provided affected her defense. Thus,
defendant has not supported her claim that advisory counsel engaged in conduct that derailed her
defense and prevented her from effectively representing herself, thereby violating her
constitutional rights. “An appellant may not merely announce [her] position and leave it to this
Court to discover and rationalize the basis for [her] claims[.]” People v Kelly, 231 Mich. App.
627, 640-641; 588 NW2d 480 (1998). Consequently, defendant has not demonstrated a plain
error affecting her substantial rights, and accordingly, she is not entitled to appellate relief on this
claim. Carines, 460 Mich. at 762-763.
B. PROSECUTOR’S CONDUCT
Defendant did not object to the prosecutor’s conduct that she now challenges, leaving this
claim unpreserved. We review unpreserved claims of prosecutor misconduct for plain error
affecting substantial rights. People v Roscoe, 303 Mich. App. 633, 648; 846 NW2d 402 (2014).
We will not reverse if the alleged prejudicial effect of the prosecutor’s conduct could have been
cured by a timely instruction. People v Watson, 245 Mich. App. 572, 586; 629 NW2d 411 (2001).
Defendant on appeal points out that Jackson and defendant never personally met, and
based on this fact, argues that the prosecutor improperly referenced facts not in evidence when
she made the following remark during closing argument:
And third, that the defendant did this with the intent to defraud. Rosalyn
[Jackson] testified that she had no interest in this, she had not given permission to
the defendant to do this.
She had gone to her for pre-approval of $150,000 home loan and all of a
sudden she’s—for clearly for months, based on the exhibits that the defendant
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admitted, for months she’s getting letters about—about accounts and things to that
affect that she never gave permission to have opened and she never gave the
defendant or even wanted the defendant to do that type of work for her.
[Emphasis added.]
Although prosecutors may not argue facts not in evidence or mischaracterize the evidence
presented, they are free to argue the evidence and all reasonable inferences that arise from the
evidence in relation to their theory of the case. People v Bahoda, 448 Mich. 261, 282; 531 NW2d
659 (1995); Watson, 245 Mich. App. at 588. Viewed in context, the prosecutor’s use of the phrase
“had gone to” was not intended to mislead the jury about whether Jackson had personally met
with defendant. Rather, the prosecutor was in the midst of a narrative about the events that led to
defendant coming into possession of Jackson’s personal identifying information, on the basis of
testimony that Jackson and Jackson’s nephew, Dwight Miller, had provided. According to that
testimony, Jackson was not able to meet with defendant on March 8, as planned, so, while on the
phone with defendant at Jackson’s house, Miller asked defendant what financial documents she
needed to start the loan application process. In turn, Jackson gave Miller copies of all of the
requested information, including her driver’s license, bank statements, and tax returns, for Miller
to deliver to defendant on Jackson’s behalf, which he did on the evening of March 8. Two days
later, on March 10, defendant called Jackson and informed her that she had been approved for
$150,000 worth of loans. It is difficult to see how the prosecutor’s use of the phrase “She had
gone to her for pre-approval of,” rather than, for example, “defendant had been contacted for pre-
approval of,” had any notable impact on defendant’s convictions. The point was that Jackson
and defendant had been connected for a business purpose that allowed defendant to receive and
possess Jackson’s personal identifying information, which the prosecutor argued defendant then
used in a fraudulent manner. The prosecutor’s commentary was not improper.
Nonetheless, to any extent that the comment could be construed as arguably improper, a
timely objection to the challenged remark could have cured any perceived prejudice by obtaining
an appropriate cautionary instruction. See Watson, 245 Mich. App. at 586. And even though
defendant did not object, the trial court instructed the jury that the lawyers’ statements and
arguments are not evidence, that the jury was to decide the case based only on the properly
admitted evidence, and that it was to follow the court’s instructions. The court’s instructions
were sufficient to dispel any possible prejudice. People v Long, 246 Mich. App. 582, 588; 633
NW2d 843 (2001). Juries are presumed to follow their instructions. People v Breidenbach, 489
Mich. 1, 13; 798 NW2d 738 (2011).
C. JUDICIAL MISCONDUCT
In her last claim, defendant argues that the trial court pierced the veil of impartiality
when, instead of simply sustaining the prosecutor’s objection regarding defendant’s improper
impeachment of Jackson, the trial court “inject[ed] [her] opinion add[ing] that that there was no
impeachment.” “The question whether judicial misconduct denied defendant a fair trial is a
question of constitutional law that this Court reviews de novo.” People v Stevens, 498 Mich. 162,
168; 869 NW2d 233 (2015). However, because defendant did not object to the challenged
conduct in the trial court, this issue is unpreserved. People v Sardy, 216 Mich. App. 111, 117-
118; 549 NW2d 23 (1996). Unpreserved issues are reviewed for plain error affecting substantial
rights. Carines, 460 Mich. at 763.
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A defendant must overcome a heavy presumption of judicial impartiality when claiming
judicial bias. People v Jackson, 292 Mich. App. 583, 598; 808 NW2d 541 (2011). In determining
whether a trial judge’s conduct deprives a defendant of a fair trial, this Court considers whether
the “trial judge’s conduct pierces the veil of judicial impartiality.” Stevens, 498 Mich. at 164,
170. “A judge’s conduct pierces this veil and violates the constitutional guarantee of a fair trial
when, considering the totality of the circumstances, it is reasonably likely that the judge’s
conduct improperly influenced the jury by creating the appearance of advocacy or partiality
against a party.” Id. at 171. This is a fact-specific inquiry, and this Court considers the
“cumulative effect” of any errors. Id. at 171-172. A single instance of misconduct generally
does not create an appearance that the trial judge is biased, unless the instance is “so egregious
that it pierces the veil of impartiality.” Id. at 171. In evaluating the totality of the circumstances,
this Court should consider a “variety of factors,” including
the nature of the judicial conduct, the tone and demeanor of the trial judge, the
scope of the judicial conduct in the context of the length and complexity of the
trial and issues therein, the extent to which the judge’s conduct was directed at
one side more than the other, and the presence of any curative instructions. [Id. at
172.]
As noted, defendant takes exception to the trial court’s comment that there was “no
impeachment” when issuing its ruling regarding defendant’s attempt to impeach Jackson with
her preliminary examination testimony. Defendant argues that the trial court’s remark bolstered
Jackson’s credibility. One form of judicial misconduct is biased commentary in front of the jury.
Stevens, 498 Mich. at 173. Reversal is proper “ ‘when the trial judge’s . . . comments were such
as to place his great influence on one side or the other in relation to issues which our law leaves
to jury verdict.’ ” Id. at 177 (citation omitted). In general, however, a trial judge’s comment that
is critical of or hostile to a party or his counsel is not sufficient to pierce the veil of judicial
impartiality. Jackson, 292 Mich. App. at 598. A trial judge’s rulings or opinions do not pierce the
veil of judicial impartiality “ ‘unless there is a deep-seated favoritism or antagonism such that the
exercise of fair judgment is impossible.’ ” Id. (citation omitted).
Considering the totality of the circumstances, the trial court’s comments that “[t]here was
no impeachment” and “[y]ou need to move on” were not calculated to cause the jury to believe
that the court had any opinion regarding the case, and the comments were not likely to unduly
influence the jury to the detriment of defendant. The comments do not reveal deep-seated
favoritism or antagonism such that the trial court could not conduct the proceedings impartially.
Rather, the court’s comments were made in the context of addressing defendant’s attempt to
offer impeachment evidence and it appears that the trial court was merely explaining its ruling
and not intending to bolster Jackson’s credibility. The court appropriately exercised its
discretion to control the trial to prevent the improper impeachment of a witness and to move the
trial along after giving defendant ample opportunity to impeach the witness. It is well
established that the trial court has a duty to control trial proceedings in the courtroom, and has
wide discretion and power in fulfilling that duty. People v Conley, 270 Mich. App. 301, 307; 715
NW2d 377 (2006). Defendant has not shown that the trial court’s conduct was improper.
Further, the trial court explained to the jury that it had a responsibility to ensure that the
trial was run efficiently and fairly. The trial court instructed the jury that the case must be
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decided on only the evidence, that its comments and rulings are not evidence, that it is not trying
to influence the vote or express a personal opinion about the case when it makes a comment or a
ruling, and that if the jury believes that the court has an opinion, that opinion must be
disregarded. “Because [i]t is well established that jurors are presumed to follow their
instructions, the presence of a curative instruction does tend to cut against a finding of judicial
bias.” Stevens, 498 Mich. at 190 (quotation marks and citation omitted; alteration in Stevens).
Accordingly, even if the trial court’s comments could be deemed improper, the court’s
instructions cured any error. Id.
Affirmed in part and remanded for further proceedings consistent with this opinion. We
do not retain jurisdiction.
/s/ Patrick M. Meter
/s/ Colleen A. O’Brien
/s/ Brock A. Swartzle
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