Opinion
361887 361889
12-21-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. KYLE JAMES SWARTHOUT, Defendant-Appellant.
UNPUBLISHED
Midland Circuit Court LC Nos. 21-008876-FC; 21-008875-FH
Before: RIORDAN, P.J., and MURRAY and M. J. KELLY, JJ.
PER CURIAM.
Defendant's convictions arise from charges in two separate lower court cases that were joined for a jury trial. In Docket No. 361887, defendant, Kyle James Swarthout, was convicted of armed robbery, MCL 750.529(1)(a), and assault with intent to commit great bodily harm less than murder (AWIGBH), MCL 750.84(1)(a). The trial court sentenced him as a fourth-offense habitual offender, MCL 769.12, to prison terms of 30 to 60 years for the armed robbery conviction and 134 months to 60 years for the AWIGBH conviction. In Docket No. 361889, Swarthout was convicted of larceny from the person, MCL 750.357, and the trial court sentenced him as a fourth-offense habitual offender to a prison term of 114 months to 60 years. Swarthout appeals as of right. We affirm.
I. BACKGROUND FACTS
The October 20, 2021 Incident
On October 20, 2021, at about 6:15 p.m., Linda Hutchinson left the Meijer store on Eastman Avenue in Midland and walked by herself to her car, which was parked near the store's garden center. She was pushing a shopping cart and her purse was in the area of the cart where a child would sit. As Hutchinson began putting the groceries into her vehicle from the cart beside her, an older burgundy truck with an extended cab and a toolbox in the bed of the truck stopped in the driving lane behind her vehicle. The driver of the truck asked her if he could take her cart and put it in the cart return. After Hutchinson said no, the driver said," 'No, I'll take care of it for you.'" The driver extended his foot and arm out of the truck, grabbed Hutchinson's purse, and threw it into the truck. The driver then drove off quickly through the Meijer parking lot toward Eastman Avenue. Hutchinson noted that the truck was loud. Hutchinson went into the store manager's office and called the police. Hutchinson generally described the driver as a white, scruffy-looking male in his mid-30s.
Various witnesses used the term "burgundy" or "maroon" to describe the color of the pickup truck. For the sake of consistency, we will use the term "burgundy."
A Meijer employee who was eating lunch in her vehicle in the parking lot across from the store's garden center heard a loud muffler around the same time. She looked up and saw a burgundy short-box Chevy truck driving "very fast" from the direction of the garden center toward Eastman Avenue. She was unable to see the driver of the truck.
The October 31, 2021 Incident
On October 31, 2021, at about 9:00 p.m., Michelle Dubay left the Meijer store on Eastman Avenue in Midland and walked by herself to her GMC Acadia. She was pushing a shopping cart and had her brown Coach purse with an orange strap in the area of the cart where a child would sit. Dubay testified that it was "not pitch black by any means" and that there was plenty of overhead lighting in the parking lot. Dubay was putting groceries from her cart into the rear driver's side of her Acadia. A yellow Ford Escape entered the parking spot next to Dubay's parking spot so that the front ends of her Acadia and the Escape were facing opposite directions. Dubay and her shopping cart were between her Acadia and the Escape. The driver of the Escape got out of his vehicle and grabbed Dubay's purse from her cart. Dubay immediately turned her body and tried to grab her purse. Both Dubay and the driver had their hands on the purse. The driver got into the driver's seat of the Escape and left the door open. Dubay made eye contact with the driver as they were in a "tug-of-war" over the purse. She was still holding on to her purse as the driver of the Escape pulled away with the door open. According to Dubay, she continued to hold on to her purse and was being dragged, but when the driver started to accelerate she was unable to keep up. She fell forward and landed on the pavement, suffering severe injury to her wrist and hand.
A Meijer patron who was about to the enter the store on October 31 heard tires squealing and an engine accelerating. The patron then saw a woman who was on the ground and yelling for help. She initially thought the woman had been thrown from the vehicle. The patron recalled that she thought the vehicle was "older" because it had rust around the wheel wells.
The Investigation
Midland Police Detectives Jacob DeFrancesco and Mark Stefaniak together investigated both incidents beginning on November 1, 2021. After interviewing both victims, they requested the security videos from Meijer asset protection employee Daniel Neuenfeldt for specific time frames on the basis of the dispatch time in the investigating officers' reports and the descriptions of the suspect vehicles. Neuenfeldt obtained the security videos of the parking lot from 9:01 p.m. to 9:08:49 p.m. on October 31, 2021, and beginning at 5:35 p.m. on October 20, 2021. Detective Stefaniak posted the still images of the two suspect vehicles obtained from the security videos on the Midland Police Department's Facebook page.
The security videos were played during trial, with Detective Stefaniak narrating and providing commentary.
Neuenfeldt also obtained the security video of a self-scan lane inside the store from 6:15:50 p.m. to 6:16:36 p.m. on October 20, 2021. Using the security video from October 20, Neuenfeldt created still images of the north store entrance at 5:56 p.m., of the south store entrance at 5:57 p.m., and of the self-scan lane at 6:16 p.m. on October 20.
On November 2, 2021, Detective DeFrancesco received a tip from Ashley Sova, the sister of Swarthout's girlfriend, Jamie Sova. Ashley told Detective DeFrancesco that Kyle Swarthout drove the vehicles posted on the Facebook page. She said that Swarthout normally drove a burgundy pickup truck that had lights on the front and side mirrors with orange LED lights. She also said that the yellow Ford Escape and the burgundy pickup truck were located at Larry Crosby's property, and she provided an address. Ashley told Detective DeFrancesco that Swarthout was currently driving Jamie's purple Lincoln SUV and that Jamie worked at a drugstore.
The detectives went to the drugstore and saw a purple Lincoln SUV in the parking lot that appeared to be unoccupied. They verified that the SUV belonged to Jamie before Detective DeFrancesco went into the store to look for Swarthout while Detective Stefaniak surveilled the SUV. As Detective DeFrancesco was leaving, he noticed movement in the rear hatch area of the SUV, and then the SUV's parking lights and taillights went on. Midland Police Officer Lance O'Keefe performed a traffic stop on the SUV, and Swarthout was arrested and taken by Officer O'Keefe to the Law Enforcement Center. After Jamie gave consent to search the SUV, Midland Police Officer Hogue found on the passenger side floorboard a purse that matched the description of Dubay's purse with a lighter holder and lighter attached to it.
According to Jamie's testimony, Swarthout drove to her house on October 31, 2021, in a yellow Ford Escape. After they went trick-or-treating at Ashley's house, Swarthout drove Jamie and her son back to Jamie's house and they all went inside. Sometime between 9:00 and 9:30 p.m. Swarthout left her house in the yellow Ford Escape. He was gone for about "a half hour or so" before returning to her house in the yellow Ford Escape. When Swarthout returned, he gave Jamie a Coach purse and some money. She attached a lighter and a lighter holder to the purse.
The detectives next went to Larry Crosby's property where they located a yellow Ford Escape and a burgundy Chevy pickup truck. The vehicles were impounded and photographed.
Larry Crosby worked on and stored vehicles at his property where his son, Stacy Crosby, lived. He owned the yellow Ford Escape that was impounded by police on November 2, 2021. He had previously put a transmission in Swarthout's burgundy pickup truck that was impounded by police on November 2, 2021. According to Stacy Crosby, Swarthout brought his truck to the property on October 22 or 23, 2021, because it was "running bad." On the same day, Swarthout borrowed Larry's yellow Ford Escape. On November 1, 2021, Stacy received a text message from Swarthout that said," 'This thing ain't moving. Escape.'" On November 1, 2021, Stacy went to the location where Swarthout was with the Escape and they towed the Escape to Larry's property.
According to the detectives, the characteristics of the suspect vehicles observed in the security videos matched the characteristics of the impounded vehicles. The yellow Ford Escape in the security video had a distinctive roof rack and what appeared to be a discoloration on the passenger's side. The impounded yellow Ford Escape had the same roof rack and the discoloration on the same area of the passenger's side that turned out to be mud. The burgundy Chevy pickup truck in the security video had a sticker on the third passenger door of a female lying down, a black toolbox in the bed, rust around the wheel well and distinct rusting on the side, and side mirrors with orange LED lights. The impounded Chevy pickup truck had the same distinctive features.
After impounding the vehicles, Detective DeFrancesco met with Dubay, who positively identified the Coach purse that had been found during the search of the SUV. Dubay told Detective DeFrancesco that the lighter holder and the lighter did not belong to her.
Detective Stefaniak obtained a search warrant and performed a forensic analysis of Swarthout's cell phone on November 4, 2021. According to Detective Stefaniak, on October 22, 2021, Swarthout's phone sent a text message to "Stacy's" phone at 10:01 a.m. that said his truck was "running bad." The detective obtained an image of Swarthout with the burgundy pickup truck that was taken on October 23, 2021, at 2:59 p.m. The detective also obtained an image of a yellow Ford Escape at Jamie's address at 2:15 p.m. on October 28, 2021. Swarthout's phone sent a text messages to "Blaine's" phone at 10:18 a.m. on November 1, 2021, that said" 'I'm in a yellow Escape.'" Swarthout's phone sent a text message to Stacy's phone on November 1, 2021 at 2:41:35 p.m. that said," 'Hey, this ain't moving.'" Four seconds later, Swarthout sent a text to "Stacy's" phone that said," 'Escape.'" On November 2, 2021, at 6:40 p.m., Swarthout's phone sent a text to a phone number for "Forever My" that said," 'If anyone asks if I was driving a yellow Escape, say no.' "
The number matched Jamie Sova's cell phone number.
A live inmate lineup was conducted with the victims separately on November 17, 2021. Dubay viewed the lineup first. Each of the six inmates entered the viewing room separately and walked out of the room before the next inmate entered. Swarthout was number four in the lineup. According to a detective who assisted with the lineup, Dubay became very emotional immediately and exclaimed," 'That's him. That's him,'" when Swarthout entered the viewing room. Dubay turned her head and buried it into her husband's shoulder. The detective testified that Dubay did not have a similar reaction when the first three inmates in the lineup entered the room. Dubay told the detective that she was 99 percent certain that Swarthout was the person who took her purse. Hutchinson was not able to identify a suspect.
Detective Rodney Trotter secured the inmates in the hall after each inmate left the viewing room. As the second lineup was underway, the first three inmates were standing in the hall near Detective Trotter. Two of the inmates were conversing softly. As Swarthout left the viewing room and walked toward the other inmates, Detective Trotter heard one of the inmates ask Swarthout," 'Did you recognize anybody?'" Detective Trotter was "one hundred percent sure" that he heard Swarthout say softly," 'Yes, I recognized her. I should have killed that bitch.' "
The trial court denied Swarthout's motion for a new trial in each case. After approximately two and a half hours of deliberations, the jury found Swarthout guilty as charged in both cases. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
Swarthout first argues that the prosecution failed to present sufficient evidence to allow the jury to find beyond a reasonable doubt that he possessed a dangerous weapon in the course of committing the larceny and that he had the intent to cause serious harm. We disagree.
"Challenges to the sufficiency of the evidence are reviewed de novo." People v Xun Wang, 505 Mich. 239, 251; 952 N.W.2d 334 (2020). "[T]his Court reviews the evidence in a light most favorable to the prosecutor to determine whether any trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt." Id. (quotation marks and citation omitted). We draw all reasonable inferences and make credibility determinations in support of the jury's verdict. People v Nowack, 462 Mich. 392, 400; 614 N.W.2d 78 (2000). "Circumstantial evidence and reasonable inferences arising therefrom may constitute proof of the elements of a crime." People v Savage, 327 Mich.App. 604, 613; 935 N.W.2d 69 (2019) (cleaned up).
To establish the elements of armed robbery, the prosecution must prove
that (1) the defendant, in the course of committing a larceny of any money or other property that may be the subject of a larceny, used force or violence against any person who was present or assaulted or put the person in fear, and (2) the defendant, in the course of committing the larceny, either possessed a dangerous weapon, possessed an article used or fashioned in a manner to lead any person present to reasonably believe that the article was a dangerous weapon, or represented orally or otherwise that he or she was in possession of a dangerous weapon. [People v Chambers, 277 Mich.App. 1, 7; 742 N.W.2d 610 (2007) (citations omitted).]
Only the second element is at issue in this appeal. Swarthout contends that the prosecution failed to present evidence that he possessed a dangerous weapon. He argues that the inference that he used his vehicle as a weapon was an unreasonable inference because "he was clearly attempting to leave the scene."
An object that generally is not dangerous can be considered a dangerous weapon for purposes of MCL 750.529 when utilized in a dangerous manner. People v Valesquez, 189 Mich.App. 14, 17; 472 N.W.2d 289 (1991). In Valesquez, the defendant, while attempting to steal an automobile at a dealership, lurched the car toward the victim, a salesman, and brushed the victim's leg with the automobile, causing injury. Id. at 16-17. This Court, noting that it held in People v Barkley, 151 Mich.App. 234, 238; 390 N.W.2d 705 (1986), that a dangerous weapon for purposes of the armed robbery statute can be "an instrumentality which, although not designed to be a dangerous weapon, is used as a weapon and, when so employed, is dangerous," concluded that "[t]he automobile, in our view, qualifies as a dangerous weapon under that standard." Velasquez, 189 Mich.App. at 17.
In the present case, the prosecution presented evidence that Swarthout grabbed Dubay's purse and got into his vehicle while Dubay was still holding on to her purse. Swarthout pulled out of the parking spot, dragging Dubay and accelerating his vehicle. Dubay was unable to keep up as the vehicle accelerated and she fell to the pavement, suffering severe injuries. This evidence, viewed in the light most favorable to the prosecution, was sufficient to allow a reasonable juror to find beyond a reasonable doubt that the vehicle was being used as a dangerous weapon.
Swarthout seems to suggest that the robbery was completed before he drove off and that he was attempting only to leave the scene. However," 'in the course of committing a larceny' includes acts that occur in an attempt to commit the larceny, or during commission of the larceny, or in flight or attempted flight after the commission of the larceny, or in an attempt to retain possession of the property." MCL 750.530(2). Here, viewed in a light most favorable to the prosecution, the evidence showed that Swarthout drove off while dragging Dubay in an attempt to retain possession of the property.
Swarthout also argues with respect to his AWIGBH conviction that the prosecution failed to present sufficient evidence that he intended to harm Dubay. MCL 750.84(1)(a) prohibits the assault of "another person with intent to do great bodily harm, less than the crime of murder." "The elements of assault with intent to do great bodily harm less than murder are: (1) an attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an intent to do great bodily harm less than murder." People v Brown, 267 Mich.App. 141, 147; 703 N.W.2d 230 (2005) (quotation marks and citation omitted). "This Court has defined the intent to do great bodily harm as an intent to do serious injury of an aggravated nature." Id. (quotation marks and citation omitted). "AWIGBH is a specific intent crime." People v Stevens, 306 Mich.App. 620, 628; 858 N.W.2d 98 (2014). "Intent to cause serious harm can be inferred from the defendant's actions, including the use of a dangerous weapon or the making of threats." Id. at 629. Moreover, "injuries suffered by the victim may also be indicative of a defendant's intent." Id.
At issue in this appeal is the second element-an intent to do great bodily harm less than murder. Dubay's testimony provided sufficient evidence for a reasonable jury to find that Swarthout intended to cause her serious bodily harm. She testified that both she and the driver had their hands on her purse after the driver got into his truck and that they were struggling over the purse. She testified that the driver looked at her as they struggled and that he drove out of the parking spot and began to accelerate while dragging her as she continued to hold on to the purse. Dubay eventually lost her grip on the purse and fell to the pavement, suffering severe injuries. Swarthout's contention that there was no evidence that he was aware that Dubay was being dragged is belied by Dubay's testimony. The jury was permitted to accept Dubay's testimony. "Juries, not appellate courts, see and hear witnesses and are in a much better position to decide the weight and credibility to be given to their testimony." People v Wolfe, 440 Mich. 508, 515; 489 N.W.2d 748 (1992), amended 441 Mich. 1201 (1992) (quotation marks and citation omitted). Further, the jury was able to view the security video of the incident and could make its own determination. Viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence presented for a reasonable jury to find beyond a reasonable doubt that Swarthout intended to cause Dubay serious injury.
III. JOINDER
Swarthout argues that the trial court improperly joined the cases for trial because the offenses in the two cases were not sufficiently related to each other. The trial court found that joinder was appropriate because the offenses occurred 11 days apart and involved the same conduct, because Swarthout would not be prejudiced because there were only three counts, and because some of the witnesses were the same for both cases.
Whether joinder is appropriate is a mixed question of fact and law. See People v Williams, 483 Mich. 226, 231; 769 N.W.2d 605 (2009). "To determine whether joinder is permissible, a trial court must first find the relevant facts and then must decide whether those facts constitute 'related' offenses for which joinder is appropriate." Id. This Court reviews the trial court's factual findings for clear error, but reviews its interpretation of MCR 6.120(B), which is a question of law, de novo. Id. The ultimate decision on permissive joinder of related charges lies "firmly within the discretion of trial courts." People v Breidenbach, 489 Mich. 1, 14; 798 N.W.2d 738 (2011). "The trial court abuses its discretion when its decision falls outside the range of principled outcomes." People v Perry, 317 Mich.App. 589, 594; 895 N.W.2d 216 (2016).
MCR 6.120(B), which governs postcharging permissive joinder, provides in relevant part:
Postcharging Permissive Joinder or Severance. On its own initiative, the motion of a party, or the stipulation of all parties, except as provided in subrule (C), the court may join offenses charged in two or more informations or indictments against a single defendant, or sever offenses charged in a single information or indictment against a single defendant, when appropriate to promote fairness to the parties and a fair determination of the defendant's guilt or innocence of each offense.
(1) Joinder is appropriate if the offenses are related. For purposes of this rule, offenses are related if they are based on
(a) the same conduct or transaction, or
(b) a series of connected acts, or
(c) a series of acts constituting parts of a single scheme or plan.
(2) Other relevant factors include the timeliness of the motion, the drain on the parties' resources, the potential for confusion or prejudice stemming from either the number of charges or the complexity or nature of the evidence, the potential for harassment, the convenience of witnesses, and the parties' readiness for trial.
Our Supreme Court has explained that charges are not related "simply because they [are] of the same or similar character." Williams, 483 Mich. at 235 (quotation marks and citation omitted). However, joinder is appropriate when charges are "logically related" and "there is a large area of overlapping proof." Id. at 237 (quotation marks and citation omitted). Whether evidence of the separate charges would be admissible in separate trials is "an important consideration" because joinder of charges "cannot prejudice the defendant more than he would have been by the admissibility of the other evidence in a separate trial." Id. (quotation marks and citation omitted).
In People v Gaines, 306 Mich.App. 289; 856 N.W.2d 222 (2014), this Court held that joinder was proper when "[t]he evidence demonstrated that defendant engaged in ongoing acts related to his scheme of preying upon young, teenage girls from his high school." Id. at 305. The Gaines defendant had
used text messages to communicate with the victims and encouraged them to keep their communications secret. In at least two cases, defendant requested naked photographs from the victims and, if they refused, threatened to cut off ties with them. He also used his parents' basement to isolate two of the young girls and sexually penetrate them. [Id.]
This Court also reasoned that "[t]he facts were not complex and presented little potential for confusion" and that, "[b]ecause defendant's actions against each victim were admissible in each case pursuant to MCL 768.27a, each victim would have been required to testify in each trial if the cases were tried separately." Id. Accordingly, "[j]oinder offered convenience to the victims, who had already suffered harassment in their communities as a result of these cases." Id.
In the present case, the trial court did not err by finding that the offenses were related within the meaning of MCR 6.120(B)(1)(b) as a series of connected acts. Swarthout engaged in acts related to his scheme of preying upon women who were walking alone to their vehicles and who left purses in the shopping cart while they were putting the groceries into their vehicles. The larcenies occurred in the same Meijer parking lot just 11 days apart and the larcenies were similar in characteristics, with Swarthout driving his vehicle near the carts and grabbing the purses while the victims were loading their groceries into their vehicles. The charges were not complex or confusing and involved the same type of offense-larceny. The larceny in the Dubay case was elevated to armed robbery and AWIGBH only because Dubay attempted to retain possession of her purse. There is no argument in this case that Swarthout did not have ample time to prepare his defense. Additionally, a single case meant that the victims and the witnesses would not need to testify at two separate trials, which made joinder more convenient and economical. Finally, the trial court found when ruling on the admissibility of evidence under MRE 404(b) that the allegations in each of these two cases were admissible in the other case. Therefore, "each victim would have been required to testify in each trial if the cases were tried separately." Gaines, 306 Mich.App. at 305. The trial court did not abuse its discretion by granting the prosecution's motion for joinder.
IV. OTHER-ACTS EVIDENCE
Swarthout argues that the trial court erred by allowing the prosecution to introduce other-acts regarding a 2010 larceny from the person conviction. We disagree.
The trial court granted the prosecution's motion to admit other-acts evidence concerning Swarthout's 2010 act of larceny from the person, finding that the 2010 offense was sufficiently similar to warrant admission under MRE 404(b). Lydia Moore testified that on June 20, 2010, she was in the greeting card aisle at a store in Midland. Two young males were in the aisle and she was "joking and funning around" with them. One of the males took off running and then the other male shouted after him and began to run with him. When the males ran off, Moore noticed that her wallet was missing from the child seat on the shopping cart. Swarthout was prosecuted for stealing her wallet and convicted of the offense.
A trial court's decision to admit evidence is reviewed for an abuse of discretion, but preliminary legal issues of admissibility are reviewed de novo. People v Bass, 317 Mich.App. 241, 255; 893 N.W.2d 140 (2016). A defendant is not entitled to relief on the ground that evidence was improperly admitted unless the defendant shows "that it is more probable than not that the error was outcome determinative." People v Lyles, 501 Mich. 107, 117-118; 905 N.W.2d 199 (2017) (quotation marks and citation omitted). "In making this determination, the reviewing court should focus on the nature of the error in light of the weight and strength of the untainted evidence." Id. at 118 (quotation marks and citation omitted).
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.
"MRE 404(b) is a rule of inclusion and courts should adopt a flexible approach when ruling on the admissibility of prior bad acts evidence." People v Hawkins, 245 Mich.App. 439, 448; 628 N.W.2d 105 (2001). Generally, to be admissible under MRE 404(b), other-acts evidence (1) must be offered for a proper purpose, (2) must be relevant, and (3) must have probative value that is not substantially outweighed by the potential for unfair prejudice. People v Knox, 469 Mich. 502, 509; 674 N.W.2d 366 (2004). A proper purpose is one other than establishing the defendant's character to show his propensity to commit the offense. People v Johnigan, 265 Mich.App. 463, 465; 696 N.W.2d 724 (2005).
To determine whether other-acts evidence is admissible to prove identity, a reviewing court should apply People v Golochowicz, 413 Mich. 298, 310-311; 319 N.W.2d 518 (1982). People v Chandler, 502 Mich. 879, 879 (2018). To be admissible under the Golochowicz standard, four requirements must be met:
(1) there is substantial evidence that the defendant committed the similar act (2) there is some special quality of the act that tends to prove the defendant's identity (3) the evidence is material to the defendant's guilt, and (4) the probative value of the evidence sought to be introduced is not substantially outweighed by the danger
of unfair prejudice. [People v Waclawski, 286 Mich.App. 634, 673; 780 N.W.2d 321 (2009) (quotation marks and citation omitted).]
There is no question that substantial evidence existed that Swarthout committed the 2010 act because he was convicted of the crime, and Swarthout does not argue that he did not commit it. The question is whether the prosecutor established some "special quality of the act" that would tend to prove Swarthout's identity. Where the other-acts evidence is offered to prove identity, "the link is forged with sufficient strength to justify admission of evidence of the separate offense only where the circumstances and manner in which the two crimes were committed are so nearly identical in method as to earmark the charged offense as the handiwork of the accused." Golochowicz, 413 Mich. at 310 (cleaned up). "The commonality of circumstances must be so unusual and distinctive as to be like a signature," and "much more is demanded than the mere repeated commission of crimes of the same class." Id. at 310-311 (cleaned up).
Looking to the similarities between the 2010 act and the present offenses, the larcenies at issue were quite similar to the previous larceny in that they were performed at a store in the same city, they involved female victims who were alone while shopping and who had their purse or wallet sitting in their cart, where a child normally would sit, while they were distracted with shopping or putting their groceries into their vehicles, and they involved perpetrators who grabbed the victims' purse or wallet and fled. The only factor that weighs against a finding that the acts were sufficiently similar is that the 2010 larceny occurred inside the store rather than in the store's parking lot. We conclude on the basis of the various factors all combined in each of these specific larcenies that the "circumstances and manner in which the two crimes were committed are so nearly identical in method as to earmark the charged offense as the handiwork of the accused." Id. (cleaned up).
Moreover, the 2010 act was related to a fact that was of consequence. Swarthout denied involvement in the present offenses, making identity a material issue at trial. The 2010 act was sufficiently similar to the present offense to warrant its admission as evidence of Swarthout's identity.
Finally, "[u]nfair prejudice exists when there is a tendency that evidence with little probative value will be given too much weight by the jury." People v Danto, 294 Mich.App. 596, 600; 822 N.W.2d 600 (2011) (quotation marks and citation omitted). The other-acts evidence was highly probative of whether Swarthout committed the offenses, particularly with respect to the larceny of Hutchinson's purse because Hutchinson was unable to identify her perpetrator. The evidence also was highly probative because it showed that Swarthout employed similar methods when carrying out the larcenies. Furthermore, the other-acts evidence did not inject issues broader than the defendant's guilt or innocence, such as "bias, sympathy, anger, or shock." People v McGhee, 268 Mich.App. 600, 614; 709 N.W.2d 595 (2005) (quotation marks and citations omitted). Rather, it provided the jury an opportunity to make an inference to determine whether Swarthout was involved in the crimes.
Even if minimal prejudice did exist, the trial court told the jury that it could consider the other-acts evidence only for the reasons for which the evidence was offered, to cushion any prejudicial effect flowing from the evidence. See People v Martzke, 251 Mich.App. 282, 295; 651 N.W.2d 490 (2002). The court gave a limiting instruction and advised the jurors that they could not use the evidence to decide that Swarthout was a bad person. Any danger of unfair prejudice may be alleviated by a limiting instruction because jurors are presumed to follow their instructions. People v Roscoe, 303 Mich.App. 633, 646; 846 N.W.2d 402 (2014). Under these circumstances, the trial court did not abuse its discretion by admitting the evidence.
Assuming that the trial court abused its discretion by admitting the evidence of the 2010 larceny, "a preserved nonconstitutional error is presumed not to be a ground for reversal unless it affirmatively appears that, more probably than not, it was outcome determinative-i.e., that it undermined the reliability of the verdict." People v Denson, 500 Mich. 385, 409; 902 N.W.2d 306 (2017) (quotation marks and citations omitted). This Court focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence. Id. at 409-410. Here, any error in the admission of evidence of the 2010 larceny was harmless because the prosecution presented overwhelming evidence that Swarthout committed the larcenies in both cases. In the Dubay case, Dubay identified Swarthout in a lineup as the person who stole her purse on October 31, 2021. She identified the suspect's vehicle as a yellow Ford Escape. Swarthout was driving a yellow Ford Escape on October 31. When he returned to Jamie's in the yellow Ford Escape around 9:30 p.m. on October 31 after being gone for about one-half hour, he gave Jamie a Coach purse. The Coach purse was found in Jamie's SUV when Swarthout was arrested while getting out of the SUV. Dubay positively identified the Coach purse as the one stolen from her. The yellow Ford Escape in the security video had similar characteristics to the Escape that Swarthout was driving on October 31 and that was impounded from Larry Crosby's property. On November 2, 2021, Swarthout sent a text message to Jamie that said," 'If anyone asks if I was driving a yellow Escape, say no.'" In the Hutchinson case, Hutchinson identified the suspect's vehicle as a burgundy pickup truck with an extended cab and a toolbox in the bed. Swarthout owned a burgundy Chevy pickup truck with distinctive characteristics and was driving the pickup truck around October 20. The burgundy Chevy pickup truck in the security video had the same characteristics as Swarthout's impounded pickup truck. Finally, Jamie identified Swarthout in the still image of the self-scan lane at Meijer on October 20. Any error in the admission of the other-acts evidence was harmless.
V. IDENTIFICATION TESTIMONY
Swarthout argues that Detective Stefaniak's identification of him in the October 20 security video and still images as the person who walked into the Meijer store, used the self-scan, and left the store and walked to the burgundy truck improperly invaded the province of the jury. Defense counsel did not object to the testimony challenged on appeal. This unpreserved issue is therefore reviewed for plain error affecting Swarthout's substantial rights. People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." Id. To show that a defendant's substantial rights were affected, there must be "a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id. "Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." People v Randolph, 502 Mich. 1, 10; 917 N.W.2d 249 (2018) (quotation marks and citation omitted).
Even assuming that it was plain error to admit Detective Stefaniak's testimony that the still images and the video depicted Swarthout in the Meijer store and in the Meijer parking lot, Swarthout has failed to demonstrate that the error affected the outcome of the Hutchinson proceeding. Defense counsel told the jury during his closing argument with respect to the October 20 incident that "our contention would be that that was not Mr. Swarthout's truck. He was obviously there at Meijer's based on the surveillance video." Counsel's position was that the security video did not show "his truck being involved in that particular larceny with Ms. Hutchinson." Thus, there is no reasonable probability that Detective Stefaniak's identification of Swarthout in the Meijer store and in the Meijer parking lot affected the outcome of Swarthout's trial in LC No. 21-008876-FC.
Additionally, Ashley Sova identified Swarthout in the October 20 still image of the self-scan lane at Meijer.
VI. EFFECTIVE ASSISTANCE OF COUNSEL
Swarthout argues that he was denied a fair trial by Detective Stefaniak's nonresponsive testimony that he asked Detective DeFrancesco to go inside the drugstore to see if Swarthout was inside "due to Kyle knowing myself rather well." He argues that the comment was inadmissible evidence of other crimes and that the jury was "left to speculate about the number and nature of their prior contacts." Relatedly, Swarthout argues that counsel was ineffective for failure to object to this comment.
To preserve a claim of ineffective assistance of counsel, a defendant must raise the issue in a motion for a new trial or for a Ginther hearing in the trial court, People v Heft, 299 Mich.App. 69, 80; 829 N.W.2d 266 (2012), or in a motion to remand for a Ginther hearing filed in this Court, People v Abcumby-Blair, 335 Mich.App. 210, 227; 966 N.W.2d 437 (2020). Swarthout did not raise this claim of ineffective assistance of counsel below by filing a motion for a new trial or a Ginther hearing, or in this Court by filing a motion to remand for a hearing. Review of unpreserved claims of ineffective assistance is limited to "errors apparent on the record." People v Spaulding, 332 Mich.App. 638, 656; 957 N.W.2d 843 (2020). Unpreserved issues are reviewed for plain error affecting substantial rights. Carines, 460 Mich. at 763.
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
"The question whether defense counsel performed ineffectively is a mixed question of law and fact; this Court reviews for clear error the trial court's findings of fact and reviews de novo questions of constitutional law." People v Trakhtenberg, 493 Mich. 38, 47; 826 N.W.2d 136 (2012). But "[w]hen there has been no evidentiary hearing and no findings of fact by the trial court, this Court reviews de novo the entire record to determine whether the defendant's trial counsel's representation constituted ineffective assistance of counsel." People v Rose, 289 Mich.App. 499, 524; 808 N.W.2d 301 (2010).
Again, as discussed previously, under MRE 404(b)(1), 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. Here, Detective Stefaniak did not testify about prior acts, nor did he describe any particular conduct by Swarthout. He merely explained that he did not go into the drugstore because Swarthout knew him well. The detective's testimony did not rise to the level of describing "other acts" that could show any character or propensity by Swarthout. Further, there was no indication at trial that Swarthout had a prior criminal record, and any inference that a prior record existed based on the detective's nonresponsive response is tenuous. Thus, admission of the comment was not erroneous.
Swarthout also argues that his counsel was ineffective by failing to object to Detective Stefaniak's comment. "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 N.W.2d 120 (2010). Thus, Swarthout was not denied the effective assistance of counsel.
VII. CONCLUSION
There were no errors warranting relief. Accordingly, we affirm.