People of Michigan v. Steven Daniel Merchant Jr ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 16, 2017
Plaintiff-Appellee,
v No. 335506
Kent Circuit Court
STEVEN DANIEL MERCHANT, JR., LC No. 16-002744-FH
Defendant-Appellant.
Before: HOEKSTRA, P.J., and STEPHENS and SHAPIRO, JJ.
PER CURIAM.
Following a jury trial, defendant appeals as of right his conviction of breaking and
entering with intent to commit larceny, MCL 750.110. The trial court sentenced defendant as a
fourth-offense habitual offender, MCL 769.12, to 6 to 45 years’ imprisonment. Because the trial
court did not err by admitting evidence of a stolen watch found during a search of defendant’s
suitcase, we affirm. However, the judgement of sentence incorrectly states that defendant was
convicted under MCL 750.11, and thus we remand for the ministerial task of correcting the
judgment of sentence to reflect defendant’s conviction under MCL 750.110.
This case arises out of a breaking and entering at a mini-storage facility in Grand Rapids,
Michigan. Several storage units had their locks torn off, doors were broken, units were
ransacked, and personal belongings, including a Seiko retirement watch, were missing. Police
collected a cigarette butt found just outside one of the units, and DNA extracted from the
cigarette butt was matched to defendant. After this DNA match was obtained, Detective Andrew
Hinds and defendant’s parole officer, Christopher Thompson, went to the home of defendant’s
aunt Peggy Roersma, where defendant had been staying “off and on.” With Roersma’s consent,
Thompson and Hinds searched a suitcase from Roersma’s shed, which Roersma told them
belonged to defendant. The suitcase contained male clothing and a ladies Seiko watch that was
still in the box. One of the victims of the break-in at the storage facility later identified the Seiko
watch as the watch she received for her retirement. The prosecutor also introduced evidence that
a few days after Thompson and Hinds found the watch, during a recorded telephone call with a
friend, defendant said: “Hey, listen to what I’m saying. Can you get rid of my stuff? My
backpack, everything?” Defendant was convicted and sentenced as stated above. Defendant
now appeals as of right.
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On appeal, defendant argues that the trial court erred by denying his motion to suppress
the evidence of the watch obtained in the search of the suitcase. Specifically, defendant first
offers the cursory assertion that the search of the suitcase was “unreasonable.” Assuming that
the search was justified by defendant’s parole conditions, as an evidentiary matter, defendant
also contends that the watch should have been excluded because it was not relevant, it was
unfairly prejudicial, and the prosecutor failed to lay an appropriate foundation for its admission
given that numerous people had access to the shed and several months had elapsed between the
break-in and the search of the suitcase. We disagree.
First, defendant’s perfunctory assertion that the search of the suitcase was “unreasonable”
is made without meaningful argument or citation to supporting authority. In these
circumstances, to the extent defendant attempts to present a Fourth Amendment argument, this
constitutional issue is abandoned. People v Burns, 250 Mich App 436, 445; 647 NW2d 515
(2002). Even if we considered the issue, we would conclude that the search was lawful and that
trial court did not err by denying defendant’s motion to suppress. When reviewing a trial court’s
decision on a motion to suppress, we review the trial court’s factual findings for clear error, but
we “review de novo the ultimate ruling on a motion to suppress.” People v Jones, 279 Mich App
86, 90; 755 NW2d 224 (2008). In this case, as a parolee who agreed to searches “upon demand”
as a condition of his parole, MCL 791.236(19), defendant had a significantly diminished
reasonable expectation of privacy, and he could be subjected to even suspicionless searches
without violation of the Fourth Amendment. See Samson v California, 547 US 843, 852, 857;
126 S Ct 2193; 165 L Ed 2d 250 (2006). Moreover, given the discovery of defendant’s DNA at
a nearby crime scene, there was reasonable suspicion that defendant had engaged in criminal
activity and violated his parole, providing grounds for the warrantless search of defendant’s
property based on his parole status. See Mich Admin R 791.7735(2); People v Woods, 211 Mich
App 314, 318-319 & n 2; 535 NW2d 259 (1995). In addition, consent is an exception to the
warrant requirement; and, before the search, Roersma gave her consent to the search. See People
v Brown, 279 Mich App 116, 131; 755 NW2d 664 (2008). Roersma owned the shed in which
the bag was stored and, when defendant gave Roersma his bags full of clothes, he asked her to
wash his clothes, meaning that he gave her the authority to open the bags. See United States v
Fultz, 146 F3d 1102, 1105-1106 (CA 9 1998). These facts demonstrate that Roersma had
common authority over defendant’s property in the shed and the police could lawfully search
based on her consent. See Brown, 279 Mich App at 131; Mich Admin R 791.7735(1)(d). In
these circumstances, the warrantless search of the bag was not unreasonable and the trial court
did not err by denying defendant’s motion to suppress on this basis.
Turning to defendant’s evidentiary challenges, we review the trial court’s decision to
admit or exclude evidence for an abuse of discretion. People v Solloway, 316 Mich App 174,
191; 891 NW2d 255 (2016). “An abuse of discretion is found when the trial court’s decision
falls outside the range of reasonable and principled outcomes.” Id. at 191-192. Preliminary
questions of law, including whether a rule of evidence or statute precludes admissibility of the
evidence, are reviewed de novo. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
“Generally, all relevant evidence is admissible, and irrelevant evidence is not.” People v
Coy, 258 Mich App 1, 13; 669 NW2d 831 (2003), citing MRE 402. Relevant evidence is
“evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
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evidence.” MRE 401. When seeking to admit physical evidence, “[t]he rule governing the
admission of physical evidence requires that a proper foundation be laid and that the articles be
identified as that which they purport to be and that the articles are shown to be connected with
the crime or with the accused.” People v Furman, 158 Mich App 302, 331; 404 NW2d 246
(1987). Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice. MRE 403. “All relevant evidence is prejudicial;
only unfairly prejudicial evidence may be excluded.” People v Danto, 294 Mich App 596, 600;
822 NW2d 600 (2011). “Unfair prejudice exists when there is a tendency that evidence with
little probative value will be given too much weight by the jury.” People v McGhee, 268 Mich
App 600, 614; 709 NW2d 595 (2005). “This unfair prejudice refers to the tendency of the
proposed evidence to adversely affect the objecting party’s position by injecting considerations
extraneous to the merits of the lawsuit, e.g., the jury’s bias, sympathy, anger, or shock.” Id.(citation and quotation marks omitted).
In this case, a proper foundation was laid for the admission of the watch. One of the
victims identified the watch as her retirement watch, which was taken during the break-in of her
storage unit. The watch was found in a suitcase given to police by Roersma, and Roersma
testified that the items she gave to the police belonged to defendant. This was sufficient to
establish the watch’s connection to the crime as well as defendant and, in particular, to establish
that the watch was what the prosecutor claimed it to be—namely, a watch stolen during the
break-in at the storage facility that was discovered in a suitcase belonging to defendant.
The watch was also relevant. “[I]dentity is an element of every offense.” People v Yost,
278 Mich App 341, 356; 749 NW2d 753 (2008). And, the fact that one of the stolen items from
the burglary of the storage facility was found in defendant’s suitcase made it more probable that
defendant was the perpetrator of the burglary. See MRE 401. Thus, the watch was relevant to
establishing the identity of the individual who broke into the storage facility. The discovery of
the stolen watch in defendant’s suitcase was also relevant to determining whether defendant
intended to commit a larceny. See MCL 750.110(1).
Contrary to defendant’s arguments, the introduction of this relevant evidence was not
unfairly prejudicial or otherwise inadmissible. The watch evidence did not inject extraneous
considerations into the lawsuit and there was no tendency that it would be given undue weight by
the jury. McGhee, 268 Mich App at 614. Although there was evidence that other people had
access to the shed and that several months elapsed between the break-in and the discovery of the
watch, this does not render the evidence inadmissible. “It is axiomatic that proposed evidence
need not tell the whole story of a case, nor need it be free of weakness or doubt. It need only
meet the minimum requirements for admissibility. Beyond that, our system trusts the finder of
fact to sift through the evidence and weigh it properly.” People v Berkey, 437 Mich 40, 52; 467
NW2d 6 (1991). In other words, while time passed between the break-in and the robbery, and
while others had access to the shed, these concerns relate to the weight that should be afforded to
the watch, not its admissibility. See People v White, 208 Mich App 126, 129; 527 NW2d 34
(1994). In this regard, the jury was apprised of any weaknesses in the watch evidence by defense
counsel, who effectively challenged the assertion that defendant placed the watch in the suitcase
by emphasizing that others had access to the shed and that it was only Roersma’s testimony that
tied defendant to the bag. The jury was also presented with other evidence of defendant’s guilt,
including his DNA found on a cigarette at the scene of the crime and his instructions to a friend
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to “get rid of his stuff” following the discovery of the watch. We see no reason why the jury
could not sift through the evidence and weigh the watch properly in conjunction with the other
evidence. Overall, the trial court did not abuse its discretion by admitting the watch evidence.
Affirmed, but remanded for the ministerial task of correcting the judgment of sentence to
reflect defendant’s conviction under MCL 750.110. We do not retain jurisdiction.
/s/ Joel P. Hoekstra
/s/ Cynthia Diane Stephens
/s/ Douglas B. Shapiro
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