People of Michigan v. Regina Lovie-Ronell Tillman

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 30, 2020
Plaintiff-Appellee,
v No. 346136
Kent Circuit Court
REGINA LOVIE-RONELL TILLMAN, LC No. 18-000803-FH
Defendant-Appellant.
Before: MARKEY, P.J., and GLEICHER and M. J. KELLY, JJ.
PER CURIAM.
Defendant, Regina Lovie-Ronell Tillman, appeals as of right her jury trial conviction of
first-degree retail fraud, MCL 750.356c. Because there are no errors warranting reversal, we
affirm.
I. BASIC FACTS
On December 22, 2017, Tillman purchased two items at a Walmart store: a box of
macaroni and cheese and a Razor Dirt Rocket electric bike. The cashier noticed that Tillman
was charged an unusually low price for the Razor Dirt Rocket bike and contacted Nabnajee
Jones, an employee in the asset protection department to report that the bike was “under rung.”
Jones approached Tillman as she was leaving the store and checked her receipt. Although the
Razor Dirt Rocket bike was usually priced around $249, the receipt indicated that Tillman had
paid approximately $40 for it. After analyzing the Razor Dirt Rocket’s box, Jones realized that
the bike was not rung up as a Razor Dirt Rocket. Instead, it was rung up as a Razor RipStik
Ripster1 for approximately $40. Jones observed that the universal price code (UPC) on the
bike’s box had been completely covered by a new UPC. The new UPC was described as a thin
cardboard cutout taped over the bike’s original UPC with clear tape. The new—incorrect—UPC
was observable on close inspection, but from a distance “it could be passed off as not obvious.”
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Jones testified that the Razor Ripstik was similar to a skateboard.
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Tillman was questioned regarding the price of the Razor Dirt Rocket by Jones and by a
police officer. The officer explained that he advised Tillman of her constitutional rights and she
agreed to give a statement. The officer stated that he asked her if she switched the price tag, and
she stated that she did not. Yet, when asked about the price of the Razor Dirt Rocket, Tillman
stated that she found it on a shelf that had a sale label for $39.99 above it. The officer and Jones
went to the area where the Razor Dirt Rocket was displayed. Jones explained that the item was
too big to be placed on a shelf. Further, Jones and the officer both testified that there were no
tags indicating that the product—or another product in the vicinity—were on sale for
approximately $40. The officer asked whether Tillman came to the store to specifically purchase
the Razor Dirt Rocket, and Tillman explained that she had not. Instead, she claimed that her
daughter had called while she was in the store and asked her to get the bike. Tillman’s daughter,
however, testified that she did not ask Tillman to pick up the bike.
The officer ran a criminal history check to see if Tillman had any prior retail frauds, and
he determined that she did. When he confronted her with the history, Tillman admitted that she
had a few priors. However, the officer stated that there was a discrepancy between the number
of priors Tillman had and the number she admitted to committing. When asked about the
discrepancy, Tillman stated that “it was not her” and that he had run the wrong person’s criminal
history. The officer testified that he had, however, confirmed her identification with her state
issued identification and that she was also fingerprinted at the jail to confirm her identify. At one
point, Tillman stated that she was “a kleptomaniac” and that she “was doing her best to try and
not steal.” Tillman was arrested and charged with first-degree retail fraud.
Before trial, the prosecution provided notice under MRE 404(b) that it was going to
introduce two prior retail-fraud incidents from earlier in 2017 in order to prove Tillman’s intent,
knowledge, identity, absence of mistake or accident, and that she employed a common scheme,
plan, or system when stealing items from retail stores. Tillman’s lawyer did not object to the
notice, nor did he object to the admission of the other-acts evidence at trial.
Amanda Stuart, an asset-protection detective working for Macy’s, testified that on
September 7, 2017, she observed Tillman grab two pairs of Levi boy’s jeans off a shelf in
Macy’s. Tillman then entered the clearance department, peeled off clearance stickers from other
items, and placed the stickers over the price tags on the boy’s jeans. Stuart alerted the cashier,
and Tillman was charged the correct price for the jeans. However, Tillman then grabbed another
pair of jeans from the boy’s department, shoved them into her bag, and left the store without
paying for them. Stuart confronted Tillman outside the store, telling her that she had to pay for
the jeans. Tillman, however, generally denied wrongdoing and drove away. Stuart testified that
she recognized Tillman because she believed Tillman was caught shoplifting at Macy’s in 2014.
Lindsay Fairchild, a loss-prevention supervisor at Kohl’s, testified that on April 12, 2017,
she witnessed Tillman place a shirt into an empty bag that she brought into the store and stick a
pair of shoes into her purse. In addition, she saw Tillman rip a tag off a cheap Nike item and
place it on a more expensive Nike item. Tillman also removed a UPC from a children’s toy and
placed it over a UPC on a more expensive toy’s UPC. Fairchild noted that the UPC Tillman
selected was an identical size to the UPC on the expensive toy and that Tillman had “perfectly”
placed it over the original UPC. Tillman checked out without paying for all the items she
selected and without paying the correct price for any of the items she selected. Fairchild noted
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that the cashier had not caught the price switching, and she opined that it was difficult for a
cashier to catch price-tag switching, especially on items of the same brand. She believed that a
“very experience ticket switcher” would know to take the same brand for the price switch.
Following deliberations, the jury convicted Tillman as charged. This appeal follows.
II. INEFFECTIVE ASSISTANCE
A. STANDARD OF REVIEW
Tillman argues that her lawyer provided constitutionally defective assistance by failing to
object to the other-acts evidence, by failing to file a motion in limine to exclude Tillman’s
admission that she was a kleptomaniac, and by failing to object to prosecutorial misconduct
during closing argument. “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). Questions of fact are reviewed for clear error, and questions of law are
reviewed de novo. Id. In the proceedings before the trial court, Tillman moved for a new trial
on the basis of her claim that her trial lawyer provided constitutionally deficient representation.
The trial court, however, denied the motion and denied her request for an evidentiary hearing.
Accordingly, because no evidentiary hearing was held, “our review is limited to mistakes
apparent on the record.” See People v Payne, 285 Mich. App. 181, 188; 774 NW2d 714 (2009).
B. ANALYSIS
In order to establish that he or she received ineffective assistance, a criminal defendant
has the burden of showing that his or her defense lawyer’s performance “was objectively
deficient” and “that the deficiencies prejudiced” him or her. People v Randolph, 502 Mich. 1, 9;
917 NW2d 249 (2018). To meet the burden on the first requirement, the defendant “must
overcome the strong presumption that counsel’s performance was born from a sound trial
strategy.” People v Trakhtenberg, 493 Mich. 38, 52; 826 NW2d 136 (2012). This Court will not
“substitute [its] judgment for that of counsel on matters of trial strategy” or “use the benefit of
hindsight when assessing counsel’s competence.” People v Unger, 278 Mich. App. 210, 242-243;
749 NW2d 272 (2008). “Failing to advance a meritless argument or raise a futile objection does
not constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich. App. 192, 201;
793 NW2d 120 (2010). To satisfy his or her burden on the second element, the defendant “must
show that, but for counsel’s deficient performance, a different result would have been reasonably
probable.” People v Armstrong, 490 Mich. 281, 290; 806 NW2d 676 (2011).
1. OTHER-ACTS EVIDENCE
Generally, “evidence of other crimes, wrongs, or acts of an individual is inadmissible to
prove a propensity to commit such acts.” People v Crawford, 458 Mich. 376, 383; 582 NW2d
785 (1998). However, MRE 404(b) provides that other-acts evidence may “be admissible for
[non-character] 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 . . . .” To be admissible under MRE 404(b), generally other-acts evidence: (1) must
be offered for a proper purpose, (2) must be relevant, and (3) must not have a probative value
substantially outweighed by its potential for unfair prejudice. People v Knox, 469 Mich. 502,
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509; 674 NW2d 366 (2004). The trial court may also provide a limiting instruction to the jury
regarding how it may permissibly use the evidence. Id. “Relevance is a relationship between the
evidence and a material fact at issue that must be demonstrated by reasonable inferences that
make a material fact at issue more probable or less probable than it would be without the
evidence.” Id. (quotation marks and citation omitted). “Where the only relevance of the
proposed evidence is to show the defendant’s character or the defendant’s propensity to commit
the crime, the evidence must be excluded.” Id. at 510. Thus, a proper purpose is one other than
establishing the defendant’s character to show his propensity to commit the offense. People v
VanderVliet, 444 Mich. 52, 74; 508 NW2d 114 (1993), mod 445 Mich. 1205 (1994).
Here, the prosecution’s notice indicated it intended to use the other-acts evidence to
demonstrate the existence of a common plan or scheme and to show intent and lack of mistake.
In accord with that stated purpose, during closing argument, the prosecutor argued that the other-
acts evidence demonstrated Tillman’s modus operandi and he highlighted the similarities
between the other-acts evidence and the charged conduct, including that Tillman switched prices
in all three incidents and that she specifically switched the prices of cheaper same-brand items
for more expensive same-brand items so she could avoid detection. The other-acts evidence,
therefore, was offered for a proper, non-character purpose.
In addition, the evidence was relevant. Evidence is relevant if it has “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 evidence.” MRE 401. Although general
similarities between the charged offense and the other-acts evidence are inadequate to establish a
plan, scheme, or system used to commit the acts, evidence of misconduct similar to the charged
misconduct “is logically relevant to show that the charged act occurred” if “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 Dobek, 274 Mich. App. 58, 90;
732 NW2d 546 (2007) (quotation marks and citation omitted).
Here, Tillman directs this Court to dissimilarities between the other-acts evidence and the
charged offense. In doing so, however, she ignores the significant similarities between the
incident. At Kohl’s, Tillman used her teeth to remove a tag from a less expensive Nike product
and placed it on a more expensive Nike product. She also removed the UPC for a cheap toy and
placed it over an expensive toy’s UPC. In this case, she switched the price of an expensive
Razor item with that of a cheap Razor item by covering the UPC of the more expensive item
with the UPC of the cheaper item. The incident at Macy’s similarly involved Tillman switching
prices, this time by peeling the stickers off clearance clothing and sticking them on two pairs of
Levi jeans. Although the Macy’s incident involved additional retail fraud perpetrated by
concealing items in her purse and in a bag, that difference is not so great as to negate the
inference that in all three incidents she employed a common scheme of switching the prices of an
expensive product for that of a cheaper product before proceeding to check out. Given the
similarity between the charged and uncharged conduct, we find the evidence was relevant to
show the existence of a common plan or scheme.
In addition, the other-acts evidence was relevant to show intent and lack of mistake. At
trial, Tillman’s defense theory was that someone other than Tillman had taped a UPC from a
different product over the UPC for the Razor Rocket Dirt bike. Tillman came to the store to pick
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up a different item, was asked by her daughter to purchase the Razor Rocket Dirt bike, and
unsuspectingly selected the box with the price-switched UPC. When she checked out, she
assumed that because it was close to Christmas, the bike was on sale and did not find alarming
that the product worth approximately $249 had rung up for approximately $40. She argued to
the jury that because she had a history of retail fraud, she was being unfairly targeted in this case
despite the fact that no one saw her do anything wrong. In his opening argument, Tillman’s
lawyer also asserted that when Tillman had committed retail fraud in the past she had admitted it,
but that in this case she was contesting the charges because she had not done anything wrong. In
sum, the defense was that although the price had been switched, Tillman had no intent to commit
retail fraud and the charges against her was the product of a mistake. Given her argument, we
agree that the other-acts evidence was relevant to show that when she went to the cash register
with a $249 product with the UPC for a $40 product taped over its UPC, Tillman intended to
defraud the store and had not simply made a mistake.
The probative value of the evidence—especially in light of the defense argument—was
great. There was no video evidence showing Tillman switching the price of the item in this case,
nor did any individual observe her taping the UPC for a cheap product over the UPC for an
expensive product. Tillman was not seen to be in possession of box-cutters capable of cutting
the UPC from one box, nor was she found with any tape of the type used to affix the new UPC
over the UPC on the bike’s box. Given the lack of direct evidence of price switching, we find
that the other-acts evidence was probative because it permitted the jury to infer that Tillman had
not accidently stumbled upon a randomly price-switched item and then innocently purchased it.
Instead, in accord with the same scheme she had already employed two times in 2017, the jury
could infer that she had switched the prices of the items. Given the limited purpose of the
evidence—to show intent, lack of mistake, and the existence of a common plan or scheme—and
given that the jury was provided with a cautionary instruction on the use of the other-acts
evidence, we conclude that although the evidence was prejudicial, it was not unfairly prejudicial.
The other-acts evidence was, therefore, properly admitted. And, because the evidence was
properly admitted, Tillman’s lawyer was not ineffective for failing to object to it. See Ericksen,
288 Mich. App. at 201.
Next, Tillman argues that her lawyer was also ineffective for failing to object to the
following exchange:
Q. Okay. All right. And how did the manager recognize the defendant?
A. Back in 2014 [Tillman and her daughter] I believe were caught
shoplifting as Macys.
Tillman contends that this evidence was unfairly prejudicial given that it introduced another
incident of retail fraud to the jury, but without any details whatsoever to even support a finding
that it was proper other-acts evidence. Nothing in the question posed, however, suggested that
the answer would include testimony regarding another incident of retail fraud. Therefore,
Tillman’s lawyer was not ineffective for failing to object to the question. In addition, we do not
find that Tillman’s lawyer’s performance was deficient for failing to request the testimony be
stricken from the record. Tillman had admitted to the police officer that she had a history of
retail fraud, and the defense theory was that Tillman’s history of retail fraud was the reason she
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was being prosecuted in this case despite the lack of direct evidence showing that she engaged in
price switching. Given the defense theory and the cumulative nature of the evidence, we
conclude that not objecting to the evidence was a strategic decision, and, even if improperly
admitted, it is not reasonably probable that this brief statement regarding a possible 2014 retail
fraud affected the outcome of the trial.
Tillman also argued that by failing to object to the other-acts evidence, her lawyer opened
the door for the prosecutor to elicit testimony that her whole family was either thieves or
lookouts who were colluding with a “thieving grandmother.” One witness testified that
Tillman’s daughter was present and knew what was occurring while her mother was stealing
from Kohl’s. That same witness testified that Tillman was the only one who was “[c]oncealing
items [and] price switching in the presence of her daughter and granddaughter.” Tillman does
not explain what objection her lawyer should have raised to the above evidence, nor does she
explain how the admission of the testimony unfairly prejudiced her. We conclude that the fact
that the jury could have used this testimony to form an unflattering opinion regarding Tillman’s
family does not also mean that without the testimony the outcome of the trial would have been
different. Accordingly, assuming arguendo, that Tillman’s lawyer was ineffective for failing to
object to this testimony, Tillman cannot met her burden of showing that but for her lawyer’s
deficient performance the outcome of the trial would have been different.
Finally, Tillman argues that she was denied her right to the effective assistance of a
lawyer because her lawyer failed to object to Fairchild’s labeling Tillman an “experienced price
switcher.” However, Fairchild described for the jury the actions Tillman took when she price
switched items at Kohl’s, which, as stated earlier, was proper other-acts evidence. See MRE
404(b). Fairchild then answered questions from the prosecution about the difference between
concealing and price switching and the techniques that experienced price switchers use to steal
items from stores, which was permissible lay witness testimony. See MRE 701. Because the
testimony was proper, Tillman cannot establish that her lawyer was ineffective for failing to
object to it.
2. EXCLUSION OF TILLMAN’S ADMISSION
Tillman next argues that her lawyer was ineffective because he failed to file a motion in
limine to exclude her statement to a police officer that she was a “kleptomaniac.” Although she
contends that her lawyer should have objected to this statement, on appeal she explains that “[i]t
was entirely foreseeable that the prosecution would attempt to introduce this statement into
evidence against Defendant—after all, it was her own statement and thus admissible under the
rules of evidence.” Given that Tillman appears to concede that the statement was properly
admitted, we conclude that she has failed to meet the burden of showing her lawyer was
ineffective for failing to attempt to exclude an otherwise admissible statement. Ericksen, 288
Mich. App. at 201.
Yet, to the extent that Tillman may be arguing that the statement should have been
excluded under MRE 404(b), we disagree. Our Supreme Court has noted that a prior statement,
itself, is not a “prior act.” People v Goddard, 429 Mich. 505, 518, 523; 418 NW2d 881 (1988);
see also People v Milton, 186 Mich. App. 574, 576; 465 NW2d 371 (1990) (“a statement of
general intent is not a prior act for the purposes of MRE 404(b). Rather, as a statement of a
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party-opponent, admissibility is determined by the statement’s relevancy and by whether its
probative value is outweighed by its possible prejudicial effect.”). Because Tillman’s statement
that she was a “kleptomaniac” is a statement regarding her mental health, not about any specific
prior act, we conclude that her statement was not inadmissible under MRE 404(b).
Further, to the extent that Tillman may be arguing that her statement should have been
excluded under MRE 403, we also disagree. In context, Tillman stated that she was a
“kleptomaniac” in response to questioning by a police officer regarding her actions in this case.
A jury could infer from her statement that she was aware that what she was doing was theft, but
that she was unable to control her impulse (and so should not be held accountable) because she
was a kleptomaniac. As a result, the statement was probative as to her consciousness of guilt
with regard to the charged crime. The danger of unfair prejudice from Tillman’s self-diagnosis
of a mental-health condition was slight when compared to the probative value of Tillman’s own
words explaining her behavior in relation to the charged crime. Because the evidence was
admissible as a party-opponent admission, MRE 801(d)(2), and because it was not inadmissible
under MRE 403 or MRE 404(b), we conclude that Tillman’s lawyer was not ineffective for
failing to file a motion in limine to exclude it before trial.
3. PROSECUTORIAL MISCONDUCT
Tillman finally argues that her lawyer was ineffective for failing to object to the
prosecutor’s improper use of character evidence during closing argument. She also argues,
independent of her claim of ineffective assistance, that her conviction should be reversed because
of prosecutorial misconduct during closing argument. Because both arguments rely on the same
factual basis, we address them together.
When evaluating claims of prosecutorial misconduct, this Court analyzes “whether the
defendant was denied a fair and impartial trial.” People v Watson, 245 Mich. App. 572, 594; 629
NW2d 411 (2001). “[A]llegations of prosecutorial misconduct are considered on a case-by-case
basis, and [this Court] must consider the prosecution’s remarks in context.” People v Bennett,
290 Mich. App. 465, 475; 802 NW2d 627 (2010). A prosecutor’s statement must be “evaluated in
light of defense arguments and the relationship they bear to the evidence admitted at trial to
determine whether a defendant was denied a fair and impartial trial.” People v Brown, 267 Mich
App 141, 152; 703 NW2d 230 (2005). In general, prosecutors have “great latitude regarding
their arguments and conduct.” People v Bahoda, 448 Mich. 261, 282; 531 N.W.2d 659 (1995)
(quotation marks and citation omitted). They “are free to argue the evidence and all reasonable
inferences from the evidence as it relates to [their] theory of the case.” Id. (quotation marks and
citation omitted). But they are not free to mischaracterize evidence during their closing
arguments. Watson, 245 Mich. App. at 588.
Here, the prosecutor argued during closing argument:
The defendant also admitted to [the police officer], to being a kleptomaniac.
Webster defines it as:
“A persistent neurotic impulse to steal especially without economic
motive.”
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That is important, because you might get on the fact that that she had money and
she had credit cards. But don’t get hung up on that, because that’s not the
importance of why somebody steals, somebody who suffers from this.
Kleptomania. They get a rush, they are addicted to it. If they can get away with
merchandise it’s not because they can’t afford it, it’s because they–they like that
rush. They like the feelings of gaming the system.
We heard from Lindsay Fairchild. She testified that during this same year
that this incident happened at Kohl’s, she was our second 404b witness. That the
defendant did the same thing there. She steals by switching prices. She talked
about how concealing is more common than the price switching. I think all the
loss prevention officers talked about that. That is important, because common
sense is going to be huge in this case. Don’t forget that this price switching is a
very—it is a unique form of stealing. Not everybody who steals, price switches, it
takes experience. The defendant in that case, also argued about the price
switching. But it was on sale, sound familiar? She did that in our case too.
Lindsay Fairchild described the defendant as an experienced price switcher.
Experienced price switcher, that’s new to me, explain it Ms. Fairchild. Well, she
switches items of the same brand so that she doesn’t get caught by these cashiers.
Which is what happened there, because their cashier didn’t check it—didn’t—
didn’t catch it. Does that sound familiar? The Nike Nike switch in that case, the
Razor Razor switch in this case. She also said perfect price switching over the bar
code. Perfect. I almost scanned right over that, but I’m like perfect what do you
mean perfect? Oh, it is—it was exactly right over the barcode. That sounds
familiar too, because Najee Jones talked about that as well. It was right over it,
same size and everything. And I already talked about the cashier didn’t even
catch it. She is good at what she does. [Emphasis added.]
Tillman argues that in both italicized statements, the prosecutor made improper character
arguments. We disagree.
The prosecutor stated that Tillman admitted she was a kleptomaniac. That comment is
supported by the properly admitted evidence, i.e., Tillman’s statement to the police officer that
she was a kleptomaniac who was trying to not steal. The balance of the argument relating to
Tillman’s kleptomania is not an attack on Tillman’s character. Rather, it is a common-sense
explanation regarding the general characteristics of kleptomania that was offered to explain to
the jury the importance of Tillman’s statement. Because the prosecutor was merely arguing the
properly admitted evidence, we discern no prosecutorial misconduct based on the first italicized
statement. See Bahoda, 448 Mich. at 282.
The second italicized statement is also not improper. Fairchild testified that the method
of price switching used by Tillman made it more difficult for cashiers to catch the price-
switching scheme, and she testified that individuals who switch prices on items tend to be more
experienced than “first-timers.” Given Fairchild’s testimony, the prosecutor’s argument is based
on a reasonable inference drawn from the evidence and it does not constitute an improper
argument. See id.
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Because the prosecutor did not make inappropriate comments during closing argument,
any objection to the arguments would have been futile. Accordingly, Tillman cannot establish
that her lawyer’s performance was deficient based on his failure to object to the prosecutor’s
closing argument. Ericksen, 288 Mich. App. at 201.
III. EVIDENTIARY HEARING
Finally, Tillman contends that the trial court abused its discretion when it denied
defendant an evidentiary hearing. We review for an abuse of discretion the trial court’s
determination whether to hold an evidentiary hearing. Unger, 278 Mich. App. at 216-217. An
evidentiary hearing is only necessary if defendant “set[s] forth any additional facts that would
require development of a record to determine if” defendant was denied her right to effective
assistance of counsel. People v Williams, 275 Mich. App. 194, 200; 737 NW2d 797 (2007). See
also People v Ginther, 390 Mich. 436, 443; 212 NW2d 922 (1973). In this case, the trial court
determined that an evidentiary hearing was not required to develop the record. On appeal,
Tillman argues that the answers to the following questions could be found if the could held an
evidentiary hearing:
1) did counsel even recognize that the prosecutor’s arguments and comments
were improper? 2) Why did counsel not object? 3) Did trial counsel review the
police reports and prior testimony of the witnesses, so as to anticipate that
Defendant’s past actions might be brought up? 4) Why did counsel not file a
motion in limine to exclude reference to Defendant’s being a “kleptomaniac”?
Yet, the other-acts testimony was properly admitted under MRE 404(b), and the prosecutor’s
arguments regarding the other-acts evidence and regarding Tillman’s admission that she was a
kleptomaniac were not improper. Further, we cannot discern any basis upon which Tillman’s
lawyer may have successfully excluded Tillman’s admission of being a kleptomaniac from being
admitted at trial, and Tillman has stated on appeal that the statement was, in fact, admissible. As
a result, there is no need to determine the answer to the first, second, and fourth questions. And,
although Tillman suggests a need to ask her defense lawyer regarding his investigation of the
case, the record reflects that he was, in fact, familiar with Tillman’s criminal record and that he
incorporated it into the defense. Thus, further factual development of the record in order to
answer the above questions is unnecessary. The trial court did not abuse its discretion by failing
to hold an evidentiary hearing.
Affirmed.
/s/ Jane E. Markey
/s/ Elizabeth L. Gleicher
/s/ Michael J. Kelly
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