People of Michigan v. David Anthony Sarachick

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 24, 2018
Plaintiff-Appellee,
v No. 332859
Calhoun Circuit Court
DAVID ANTHONY SARACHICK, LC No. 2015-003395-FH
Defendant-Appellant.
Before: MURPHY, P.J., and JANSEN and SWARTZLE, JJ.
PER CURIAM.
Defendant, David Anthony Sarachick, appeals as of right from his jury trial conviction of
aggravated stalking, MCL 750.411i. The trial court sentenced defendant as a fourth-offense
habitual offender, MCL 769.12, to 42 months to 20 years of imprisonment. We affirm.
I. BACKGROUND
This case results from a dispute involving a roofing job completed on defendant’s home
in Battle Creek, Michigan. The roof was completed by Ron’s Roofing, which is owned by the
victim. The roof passed city inspection, and defendant made payments on the roof for
approximately five months without complaint. In February 2015, defendant called Ron’s
Roofing to submit a complaint regarding a piece of “drip metal” that was allegedly bent.
Defendant later complained about nails from the roof coming through the soffit. Although the
victim believed that there was nothing wrong with the roof, the victim agreed to send a crew to
fix the issues that defendant identified. Defendant, however, refused to allow the crew access to
his property. Eventually, the victim and defendant entered into a hold-harmless agreement under
which the victim waived defendant’s remaining debt and agreed to pay for another contractor to
perform the repair and the victim agreed to hold harmless and stop disparaging Ron’s Roofing.
The next time the victim saw defendant, he observed that defendant placed a sign that
said “Ron’s Roofing Sucks” on the side of the road. The victim observed defendant putting up
similar signs on two other occasions. Defendant would motion like he wanted to fight the
victim, but the victim refused. The victim, his wife, and his employees removed “hundreds” of
signs over the summer of 2015.
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Defendant also left the victim seven voicemails in one night in June 2015. The victim
thought these phone calls were threatening both to him personally and his grandchildren. In the
voicemails, which were eventually played for the jury, the victim repeatedly disparages and
threatens the victim. The victim turned a recording of those voicemails over to law enforcement,
who advised defendant to stop contacting the victim and his family.
Nevertheless, defendant’s conduct continued. Defendant went to public city-commission
meetings wearing a T-shirt that said “Ron’s Roofing Sucks” and expressed his displeasure with
Ron’s Roofing and the city for approving the roof. Eventually, the mayor intervened and
prevented defendant from continuing to voice his displeasure at these meetings.
The victim also stated that he was talking to a potential customer regarding a roof
estimate in defendant’s neighborhood when defendant parked his vehicle on the road, exited it,
and started cursing at the victim in front of the victim’s grandson. Defendant told the customer
that he would come back later to explain why she should not hire Ron’s Roofing, before exiting
the scene. The victim testified that, during this encounter, defendant motioned to him that he
wanted to fight.
In another incident, the victim was driving toward the hardware store when a white car
crossed the center line and tried to run him off the road. The victim did not recognize this
vehicle, but he followed it. The car eventually stopped and defendant exited the vehicle yelling
obscenities at the victim.
According to the victim, he had a mental breakdown during this time because he was so
stressed. He stopped going to homebuilders-association meetings and ceased doing charity work
because he was tired of trying to explain the signs to people in the community. In addition, the
victim lost 30 pounds because he could not eat. The victim tried unsuccessfully to obtain a
personal protection order (PPO) against defendant. In October 2015, however, defendant was
arraigned on the charge of aggravated stalking and the victim was granted a PPO.
Before trial, the prosecutor filed a notice of intent to introduce evidence under MRE
404(b) involving defendant’s stalking of a different victim, Mike Kline, to show a repeated
course of conduct involving defendant’s continuous harassment of other individuals. The
prosecutor argued that this evidence was admissible to show proof of motive, opportunity, intent,
preparation, scheme, and plan. The trial court admitted the evidence to show defendant’s intent
to harass the victim and because there was a direct link between the letters in this case and
defendant’s past behavior.
On the day of trial, defendant indicated that he wanted to represent himself. The trial
court allowed defendant to do so but ordered defendant’s defense counsel to be present if
defendant required assistance.
At trial, the PPO coordinator for the district court in Calhoun County testified that Mike
Kline was granted a PPO against defendant in 2011. Defendant made threats to Kline, posted
flyers stating, “KRI Contracting will screw you,” and wore shirts bearing the same message.
Kline was granted another PPO against defendant in 2012 after defendant drove by a job site and
yelled that Kline was a “crack head.” Another incident occurred when defendant pulled up next
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to Kline in a parking lot, “flipped him off,” and yelled profanity. Defendant was eventually
charged with stalking Kline and entered a no-contest plea to the charge.
Defendant called himself as a witness at trial. He admitted to posting the signs,
complaining about Ron’s Roofing at city-commission meetings, and wearing the T-shirts, but
denied ever stalking the victim or attempting to run him off the road. After the close of proofs,
the jury found defendant guilty of aggravated stalking.
Following his conviction, defendant filed a motion for an evidentiary hearing or a new
trial on August 19, 2016. He argued that he was denied effective assistance of counsel because
defense counsel failed to interview witnesses and adequately prepare for the case and because
defense counsel failed to make a pre-trial motion to exclude evidence regarding defendant’s
constitutionally protected speech. The trial court held a hearing regarding defendant’s
ineffective-assistance-of-counsel claim during which defense counsel testified that he met with
defendant before trial several times either before or after hearings at the courthouse. Defense
counsel acknowledged that he did not file any motions before trial, but stated that his strategy
was to object at trial if the prosecutor attempted to introduce evidence of defendant’s
constitutionally protected conduct. Defense counsel did not believe that the prosecutor would
have anticipated the objections he had to the evidence, and he believed that he would have a
better chance of getting the evidence excluded with objections rather than with a pretrial motion.
Defense counsel admitted that defendant was not happy with his witness list, but testified
that defendant made a list of over 50 witnesses, many of whom did not have any relevant
testimony for trial. Defense counsel also did not contact any character witnesses because he
thought it was a bad strategy to call character witnesses in this case because it would give the
prosecutor the opportunity to rebut defendant’s character. He believed that any rebuttal would
be far more damaging than any advantage gained by presenting positive character witnesses.
The trial court concluded that defense counsel was not ineffective. With regard to the
constitutionally protected speech, the trial court explained that the evidence was admissible to
give detail and meaning to the other conduct that occurred in this case, but that the bases for the
conviction were the other threats that defendant made over the phone and the physical threats
that defendant made to the victim. The trial court believed that defense counsel was clearly
prepared and had various contacts with defendant. Defendant may have wanted to have more
meetings, but the trial court noted that there were certain practical limitations and that defense
counsel was not at defendant’s “beck and call.” In addition, defense counsel had a strategy
regarding the free-speech issue. The trial court did not know whether it would have been
successful, but that was not the question. Defense counsel had researched the case, and he knew
how the witnesses were going to testify. As a result, the trial court stated that there was “no
way” that it could find that defense counsel’s representation was deficient. The trial court denied
defendant’s motion for a new trial.
This appeal followed.
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II. ANALYSIS
A. Effective Assistance of Counsel
On appeal, defendant first argues that the trial court erred in denying his motion for a
new trial based on the ineffective assistance of his counsel. “Whether a person has been denied
effective assistance of counsel is a mixed question of fact and constitutional law.” People v
LeBlanc, 465 Mich. 575, 579; 640 NW2d 246 (2002). “The trial court’s factual findings are
reviewed for clear error, while its constitutional determinations are reviewed de novo.” People v
Cline, 276 Mich. App. 634, 637; 741 NW2d 563 (2007). This Court reviews a trial court’s grant
or denial of a new trial for an abuse of discretion. People v Unger, 278 Mich. App. 210, 232; 749
NW2d 272 (2008). An abuse of discretion occurs when the trial court chooses an outcome that
falls outside the range of principled outcomes. People v Douglas, 496 Mich. 557, 565; 852
NW2d 587 (2014).
To prevail on a claim of ineffective assistance of counsel, a defendant must establish that
“(1) the performance of his counsel was below an objective standard of reasonableness under
prevailing professional norms and (2) a reasonable probability exists that, in the absence of
counsel’s unprofessional errors, the outcome of the proceedings would have been different.”
People v Sabin (On Second Remand), 242 Mich. App. 656, 659; 620 NW2d 19 (2000). “A
defendant must overcome a strong presumption that the assistance of his counsel was sound trial
strategy, and he must show that, but for counsel’s error, the outcome of the trial would have been
different.” Id.
Investigating Witnesses. First, defendant argues defense counsel failed to discuss
possible witnesses with him. Both defendant and defense counsel testified that they met to
discuss the witness list. Defense counsel, however, felt that many of the witnesses that defendant
wished to call did not have relevant information for the trial and that submitting character
witnesses was not a good strategy in this case because the prosecutor’s rebuttal evidence would
have been damaging. Defendant has failed to explain in his brief on appeal what witnesses his
trial counsel failed to investigate and what helpful testimony, if any, those witnesses would have
provided. Moreover, defendant has not provided any persuasive argument that opening up his
character to rebuttal witnesses would have been sound trial strategy. Decisions regarding what
witnesses to present are presumed to be a matter of trial strategy. People v Rockey, 237 Mich
App 74, 76; 601 NW2d 887 (1999). Defendant has not shown that his counsel’s performance
was deficient or that he suffered prejudice with regard to investigatory witnesses.
Discussing Exhibits. Next, defendant argues that his trial counsel did not discuss exhibits
and videos with him. Defendant, however, admitted that he did not provide any videos or
exhibits to his counsel before trial. Although defendant claims that he was unable to provide any
videos to defense counsel, the record indicates that defense counsel and defendant met at least
seven times to discuss defendant’s case. If defendant wanted his trial counsel to review specific
pieces of evidence in defendant’s possession, he could have provided that evidence to defense
counsel on one of these occasions, or by other appropriate means, such as electronic or physical
mail or personal or hired delivery. Defense counsel cannot be deemed ineffective for failing to
review evidence in defendant’s control that defendant did not share with defense counsel.
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Forgoing a Pretrial Motion to Exclude Evidence. Defendant also claims that defense
counsel did not adequately prepare for trial because he did not file a pretrial motion to exclude
evidence of defendant’s constitutionally protected speech, i.e., posting signs, wearing messages
on his clothing, and commenting at city-commission meetings. Defense counsel testified at the
evidentiary hearing that he planned to object to this evidence at trial and explained that he had
three theories to support his intended objections: first, the definition of “harassment” excludes
constitutionally protected activity or activity with a legitimate purpose; second, the signs and
shirts referred to Ron’s Roofing, which was a separate legal entity from the victim; and three,
there was no evidence that the signs were ever placed in property owned or leased by the victim,
therefore the posting of signs did not constitute unconsented contact. Defense counsel did not
believe that the prosecutor would anticipate his objections and that reserving the objections for
trial, rather than making a pretrial motion, would give defendant a tactical advantage. Because
decisions regarding the presentation of evidence are presumed to be matters of trial strategy, we
find that defendant has not shown that his counsel was ineffective for failing to file a pretrial
motion to exclude. Rockey, 237 Mich. App. at 76-77.
Meeting With Defendant. Defendant next argues that defense counsel was not prepared
for trial because he only met with defendant before or after hearings at the courthouse. Defense
counsel testified that he specifically chose to hold meetings at the courthouse because it was
closer to defendant’s home, and because of his practice, defense counsel was typically at the
courthouse every day of the week. We fail to see how the location of these meetings, which
appear to have been scheduled for the convenience of both defendant and his trial counsel, in any
way impacted defense counsel’s ability to represent defendant. Rather, defendant’s argument
appears to be that defense counsel did not spend enough time meeting with him. On this
question, we agree with the trial court that defense counsel was not required to be at defendant’s
beck and call. The record makes apparent that defense counsel met with defendant at least seven
times before trial. Even if some of these meetings were short, defendant has failed to show any
deficient performance that would have been cured by more or longer meetings.
Based on the testimony provided at the evidentiary hearing, we conclude that the trial
court did not clearly err in finding that defense counsel was prepared for trial. Defense counsel’s
choice of meeting location, selection of witnesses, and decision to forgo filing a pretrial motion
to exclude evidence were all the result of reasonable trial strategy that we will not second guess
on appeal.
B. Sufficiency of the Evidence
Second, defendant argues that the evidence was insufficient to convict him of aggravated
stalking. When reviewing a sufficiency-of-the-evidence claim, this Court reviews the evidence
de novo “in a light most favorable to the prosecution to determine whether a rational trier of fact
could find that the prosecution had proved the crime’s elements beyond a reasonable doubt.”
People v Lane, 308 Mich. App. 38, 57; 862 NW2d 446 (2014).
Stalking is a series of two or more separate and noncontiguous acts evidencing repeated
and targeted harassment of another individually that actually and reasonably causes the other
individual to suffer emotional distress. MCL 750.411i(1)(a),(d),(e). Harassment encompasses
many types of unconsented contact including, but not limited to, following or appearing within
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the sight of the targeted individual, approaching or confronting the targeted individual, and
sending mail or electronic communications to the targeted individual. MCL 750.411i(1)(d),(f).
“Harassment does not include constitutionally protected activity or conduct that serves a
legitimate purpose.” MCL 750.411i(1)(d). Under MCL 750.411i(2)(d), a second conviction of
stalking renders the perpetrator guilty of aggravated stalking.
Sufficient Evidence Supported Defendant’s Conviction. Viewing the evidence in the light
most favorable to the prosecution, we conclude that sufficient evidence supported defendant’s
conviction. The prosecutor presented evidence that defendant was previously convicted of
harassing a different roofer, Mike Kline. The prosecutor submitted letters and recorded
voicemails from defendant to the victim in this case, in which defendant threatened to put Ron’s
Roofing out of business like he did to Kline’s business. In addition, defendant left seven
voicemails for the victim over the course of one evening. In the voicemails, defendant
threatened to close down Ron’s Roofing, called the victim names such as “f--ker” and “c--k
sucker,” told the victim that he had “f--ked with the wrong person,” and cursed extensively.
Defendant accused the victim of causing damage to his roof, employing “ex-cons,” breaking into
an ice rink, and committing tax evasion. Defendant challenged the victim to come to a bar and
meet defendant and told the victim to attend the next city commission meeting to hear what
defendant had to say about the victim and Ron’s Roofing. Additionally, the victim testified that
defendant approached him on at least two occasions and physically motioned that he wanted to
fight the victim and that, on another occasion, defendant attempted to run him off the road while
he was driving. According to the victim, he suffered a mental breakdown due to the stress of this
situation, stopped participating in his normal activities, and lost 30 pounds during the ordeal
because he could not eat.
Although defendant disputes this testimony, the jury’s final conviction indicates that it
found the prosecutor’s case credible and convincing. As the trier of fact, the jury, not this Court,
is the final judge of credibility. People v Lemmon, 456 Mich. 625, 637; 576 NW2d 129 (1998).
Thus, the record shows that the prosecutor presented evidence that defendant engaged in
at least ten separate instances of unconsented, harassing conduct directed toward the victim. As
a result, the victim actually and reasonably suffered emotional distress. We note that, not only
did defendant threaten the victim’s reputation, business, and livelihood, on two occasions
defendant threatened the victim’s personal security by trying to instigate a fight with the victim.
On a third occasion, when defendant crossed the center-line to run the victim off the road,
defendant’s conduct crossed the line demarking threatening words from a real and imminent risk
of physical harm. Accordingly, we conclude that there was sufficient evidence that defendant
stalked the victim. Because this was defendant’s second conviction for stalking, the record
supports defendant’s conviction for aggravated stalking.
Defendant challenges this conclusion on several grounds. First, defendant argues that the
trial court erred by admitting evidence regarding defendant’s prior stalking case. Next,
defendant argues that his conviction actually, and impermissibly, rests on the evidence that
defendant posted signs and wore shirts bearing the phrase “Ron’s Roofing Sucks” and that
defendant spoke out against the victim and his company at a city-commission meeting.
Defendant argues that this conduct is protected under the First Amendment and should have been
excluded at trial. Finally, defendant asserts that the prosecutor committed misconduct by
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directing the jury to consider this evidence and that the jury questions indicate that defendant’s
convictions resulted from his constitutionally protected activity.
“The decision whether to admit evidence is within the trial court’s discretion and will not
be disturbed absent an abuse of that discretion.” People v McDaniel, 469 Mich. 409, 412; 670
NW2d 659 (2003). An abuse of discretion occurs “when the court chooses an outcome that falls
outside the range of principled outcomes.” Douglas, 496 Mich. at 565 (internal quotation marks
and citation omitted). Nonetheless, when “the decision involves a preliminary question of law,
which is whether a rule of evidence precludes admissibility, the question is reviewed de novo.”
McDaniel, 469 Mich. at 412. “A preserved error in the admission of evidence does not warrant
reversal unless after an examination of the entire cause, it shall affirmatively appear that it is
more probable than not that the error was outcome determinative.” People v Burns, 494 Mich.
104, 110; 832 NW2d 738 (2013) (internal quotation marks and citation omitted).
Other-Acts Evidence Was Admissible. Defendant contends that the trial court improperly
admitted evidence regarding defendant’s previous stalking case. We conclude that, at a
minimum, evidence of defendant’s prior stalking conviction was admissible to prove one of the
necessary elements of the offense of aggravated stalking. See MCL 750.411i(2)(d). Moreover,
we agree with the trial court that evidence of defendant’s previous stalking case was admissible
under MRE 404(b).
MRE 404(b)(1) provides:
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, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
In People v VanderVliet, 444 Mich. 52, 74; 508 NW2d 114 (1993), the Supreme Court
established a four-part test to determine the admissibility of other-acts evidence under MRE
404(b). First, “the prosecution must offer the other acts evidence under something other than a
character to conduct theory.” Second, “the evidence must be relevant under [MRE] 402 . . . to an
issue or fact of consequence at trial.” Id. “Third, the trial judge should employ the balancing
process under [MRE] 403.” Id. at 74-75. “[A] determination must be made whether the danger
of undue prejudice [substantially] outweighs the probative value of the evidence” under MRE
403. Id. at 75 (internal quotation marks and citation omitted; second alteration in original).
“Finally, the trial court, upon request, may provide a limiting instruction under [MRE] 105.” Id.;
see also People v Denson, 500 Mich. 385, 316-317; 902 NW2d 306 (2017) (explaining that, to be
admissible under MRE 404(b), other-acts evidence must be offered for a proper purpose as well
as be logically relevant (i.e., material and probative), and the probative value must not be
substantially outweighed by unfair prejudice).
We conclude that the other-acts evidence was admissible under MRE 404(b) to show
defendant’s scheme, plan, or system of stalking construction professionals. “[E]vidence of
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similar misconduct is logically relevant to show that the charged act occurred where the
uncharged misconduct and the charged offense 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). “Logical relevance is not limited to
circumstances in which the charged and uncharged acts are part of a single continuing
conception or plot.” Id. at 64. “General similarity between the charged and uncharged acts does
not, however, by itself, establish a plan, scheme, or system used to commit the acts.” Id.
Defendant referenced his conduct in the prior case in a letter that he sent to the victim in
which he threatened to ruin the victim’s business like he did to Kline’s business. In each case,
defendant created flyers, signs, and shirts disparaging the roofer’s business. Defendant made
threatening phone calls to each victim and approached each victim in public places, yelling
obscenities and threats. Therefore, because defendant has engaged in essentially the same course
of conduct with two different victims, we find that the two situations are sufficiently similar to
support an inference that they are part of a common scheme, plan, or system of stalking roofers.
Moreover, by asserting that he did not verbally or physically threaten the victim in this case,
defendant made his intent to harass the victim a material issue of fact. Because the other-acts
evidence tended to negate defendant’s assertion, it is also relevant under MRE 404(b) to prove
defendant’s intent to harass. See Vandervliet, 444 Mich. at 78-80. Accordingly, we conclude
that the trial court did not err by admitting evidence of defendant’s prior stalking.
Defendant’s argument that the probative value of this evidence was substantially
outweighed by the danger of unfair prejudice is also without merit. “Evidence is unfairly
prejudicial when there exists a danger that marginally probative evidence will be given undue or
preemptive weight by the jury.” People v Crawford, 458 Mich. 376, 398; 582 NW2d 785 (1998).
As discussed above, the other-acts evidence involving defendant’s previous stalking case was
highly probative to show that defendant intended to harass the victim as part of a common
scheme, plan, or system of stalking roofers. This evidence was prejudicial to defendant;
however, he has failed to demonstrate that it was unfairly prejudicial in light of the evidence’s
strong probative value. See MRE 403. More importantly, defendant could have asked for a
limiting jury instruction regarding the other-acts evidence, but failed to do so. We will generally
not find error when a limiting instruction could have cured any prejudice to the defendant.
Unger, 278 Mich. App. at 235. Accordingly, defendant’s claim is without merit.
Evidence of Defendant’s Constitutionally Protected Activity Was Admissible. The parties
agree that defendant’s conduct in posting signs, wearing shirts, and commenting at a city-
commission meeting was constitutionally protected. The constitutional nature of this evidence
does not, however, render it irrelevant to this case. We agree with the trial court that the
evidence of defendant’s constitutionally protected activity was relevant to provide context to the
evidence of defendant’s legally prohibited conduct. Defendant’s invitation to the victim to
attend the city-commission meeting makes relevant the disparaging remarks defendant made
there. The signs and shirts reading “Ron’s Roofing Sucks” help explain the escalation of what
started as a business dispute and eventually evolved into defendant attempting to run the victim
off the road. The signs, shirts, and commission-meeting comments all illustrate how defendant
carried through his written threat to ruin the victim’s business and help explain why repeated
contact with defendant was so emotionally taxing for the victim. We find no error in the
admission of this context-based evidence.
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Defendant Has Not Shown that Constitutionally Protected Activity Was the Basis of His
Conviction. Finally, defendant argues that it was clear that constitutionally protected activity
was used as a basis for his conviction because the prosecutor argued during closing argument
that the jury should consider defendant’s conduct at city commission meetings, posting signs,
and wearing T-shirts. “Because the challenged prosecutorial statements in this case were not
preserved by contemporaneous objections and requests for curative instructions, appellate review
is for outcome-determinative, plain error.” Unger, 278 Mich. App. at 235.
In her closing argument, the prosecutor recounted the evidence, focusing first on the
letter defendant sent to the victim and the seven voicemails. The prosecutor then explained how
defendant’s behavior escalated into him physically approaching and confronting the victim.
Next, the prosecutor recounted the city-commission meeting and the signs defendant posted
about Ron’s Roofing, before explaining the testimony regarding defendant running the victim off
the road. Finally, the prosecutor addressed the victim’s alleged stalking of Mike Kline. The
prosecutor argued that the evidence showed “a pattern of behavior” that constituted stalking.
Defendant did not object to the prosecutor’s closing argument and, accordingly, did not
seek a curative instruction. Still, the trial court instructed the jury that a “lawyer’s statements
and arguments are not evidence.” The trial court also instructed the jury regarding the elements
of aggravated stalking and instructed that the jury may only convict defendant on the basis of
admissible evidence. While the jury was deliberating, it sent several questions to the trial court.
One question asked, “Do the signs represent freedom of speech?” Another question asked, “Do
the signs represent a form of unconsented conduct?” Although the answers to these questions
were not included in the record, the trial court stated, “It should be indicated [the jury] did have
several questions that were responded to and the parties agreed to the response.”
Defendant argues on appeal that the prosecutor’s remarks and the jury’s questions
indicate that the jury convicted defendant on the basis of constitutionally protected activity.
After reviewing the prosecutor’s argument, we conclude that, on balance, the prosecutor’s
remarks were merely an overview of the evidence properly admitted at trial, which tended to
show defendant’s scheme, plan, or system in stalking roofers. Because prosecutors “are
generally free to argue the evidence and all reasonable inferences from the evidence as it related
to their theory of the case,” Unger, 278 Mich. App. at 236, we find defendant’s claim of
prosecutorial conduct to be without merit.
Moreover, we note that defendant did not object or request a curative instruction. This
Court will generally not find error requiring reversal when an instruction would have cured any
prejudice. Id. at 235. The trial court instructed the jury on the elements of aggravated stalking,
instructed the jury that the prosecutor’s statements and arguments were not evidence, and
instructed the jury that it could only convict defendant on the basis of admissible evidence.
“Jurors are presumed to follow their instructions, and instructions are presumed to cure most
errors.” People v Abraham, 256 Mich. App. 265, 279; 662 NW2d 836 (2003). We are not
persuaded that the prosecutor’s comments had a prejudicial effect so severe that it was not cured
by the trial court’s instructions. Id. Finally, although the jury did submit questions regarding
defendant’s constitutionally protected activity, defendant agreed to the trial court’s responses to
those questions. A party may not claim as reversible error something that he deemed proper at
trial “since to do so would permit the party to harbor error as an appellate parachute.”
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Braverman v Granger, 303 Mich. App. 587, 608; 844 NW2d 485 (2014) (internal citation and
notation omitted).
Therefore, we find each of defendant’s arguments regarding impermissible uses of his
constitutionally protected activity to be without merit.
Affirmed.
/s/ William B. Murphy
/s/ Kathleen Jansen
/s/ Brock A. Swartzle
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