People of Michigan v. Sonya Marie Cody

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

April 14, 2022

Plaintiff-Appellee,

v No. 354178

Isabella Circuit Court

SONYA MARIE CODY, LC No. 19-000916-FH

Defendant-Appellant.

Before: RONAYNE KRAUSE, P.J., and MURRAY and O’BRIEN, JJ.

PER CURIAM.

Defendant appeals as of right her jury-trial convictions of embezzlement by an agent or

employee of $1,000 or more but less than $20,000, MCL 750.174(4)(a), and illegal sale or use of

a financial transaction device, MCL 750.157q. Defendant was sentenced to serve 11 months in

jail and three years of probation. We affirm.

I. FACTS

This appeal arises from defendant’s embezzlement from and inappropriate use of a

company debit card belonging to her then-employer, Stone Lodge Memory Care, a licensed adult

foster care facility. Defendant was in charge of managing the day-to-day operations of Stone

Lodge, which included managing financial records and purchasing supplies with Stone Lodge’s

debit card. After Stone Lodge’s owner noticed suspicious debit-card purchases at Walmart, she

called the police. Police Chief Luke Sawyer obtained 19 surveillance videos from Walmart in

which defendant was seen purchasing various items at self-checkout lanes, using the cash-back

feature to withdraw cash, and placing the cash in her personal wallet. In total, receipts from these

types of transactions amounted to more than $28,000.

Stone Lodge’s owner testified that defendant was not authorized to receive cash back while

making purchases with Stone Lodge’s debit card. The owner also testified that the vast majority

of the items that defendant was seen purchasing in the videos with Stone Lodge’s debit card—

such as women’s clothing and a wristwatch—were not used at Stone Lodge because Stone Lodge

did not typically purchase personal items for residents. The owner explained that if Stone Lodge

needed to purchase personal items for residents, it invoiced the resident’s family to seek

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reimbursement. In addition, Stone Lodge’s owner and two employees testified that Stone Lodge

rarely used petty cash, and had a maximum of $25 in petty cash at any time. The Stone Lodge

employees also testified that defendant was frequently absent from work and that defendant

informed them that she went to the casino frequently.

Defendant testified that all of the purchases she made at Walmart and other various stores

were for Stone Lodge and its residents, and that all of the cash she received as cash back was

placed in Stone Lodge’s petty cash and used for various events at the facility. According to

defendant, Stone Lodge went through $1,400 to $2,000 in petty cash per month.

The jury convicted defendant as stated above, and this appeal followed.

II. ANALYSIS

A. HEARSAY TESTIMONY

Defendant first argues that Chief Sawyer’s testimony was impermissible hearsay that did

not fall under any of the hearsay exceptions.

Defendant did not object to Chief Sawyer’s testimony, so this issue is unpreserved. People

v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). Unpreserved errors are reviewed for

plain error affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597

NW2d 130 (1999). To show that plain error affected substantial rights, a defendant must show

that (1) error occurred, (2) the error was obvious, and (3), the error caused “prejudice, i.e., that the

error affected the outcome of the lower court proceedings.” Id. Even if a defendant establishes

all three elements, reversal is only warranted if the plain error “resulted in the conviction of an

actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public

reputation of judicial proceedings independent of the defendant’s innocence.” Id. at 763-764

(quotation marks and citation omitted; alteration in original).

Hearsay is “a statement, other than the one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).

Hearsay is not admissible except as provided in the rules of evidence. MRE 802.

Defendant argues that Chief Sawyer’s following testimony was hearsay without an

exception: (1) that Stone Lodge’s owner said that defendant embezzled funds and that defendant

was the only person with access to Stone Lodge’s debit card, (2) that Stone Lodge’s owner said

that defendant had a problem with absenteeism at work, (3) that Stone Lodge’s owner believed

several transactions from Walmart were fraudulent, (4) that two Stone Lodge employees said

defendant was the only person with access to the Stone Lodge debit card, that defendant went to

the casino often, and that defendant might have missed work because she was going to the casino,

(5) that a Walmart employee identified defendant in surveillance videos and photos, (6) that the

Walmart employee described the way defendant used Stone Lodge’s debit card as “odd,” (7) and

that the Walmart employee said that he saw the type of financial crime involved in this case “quite

often” and that defendant’s actions were consistent with that activity.

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The prosecution concedes that Chief Sawyer’s testimony about the statements made by

Stone Lodge’s owner and its two employees was hearsay without an exception, but the parties

disagree about whether Chief Sawyer’s testimony about statements made by the Walmart

employee was hearsay. One of the contested statements—that Chief Sawyer supposedly said that

the employee “identified [defendant] from surveillance videos and photos”—does not accurately

reflect the chief’s testimony. Chief Sawyer testified that the employee provided the chief with

videos and photos recorded by Walmart, and that from those Chief Sawyer himself identified

defendant. Chief Sawyer did not testify that the employee identified defendant in the videos or

photos.

Similarly, contrary to defendant’s assertions on appeal, Chief Sawyer did not testify that

the Walmart employee told the chief that “he saw the type of financial crimes involved in this case

‘quite often’ and [defendant’s] actions were consistent with that activity.” Rather, Chief Sawyer

speculated that the employee likely saw financial crimes in the course of his duty often, not that

the employee said this to him. Similarly, the chief never testified that the employee told him that

defendant’s “actions were consistent with” the type of financial crime involved in this case.

The final at-issue statement is Chief Sawyer’s testimony that the Walmart employee told

the chief that he found defendant’s behavior of making multiple small purchases with the cash-

back option to be “odd.” We agree with the prosecution, however, that this testimony was not

hearsay because it was not elicited to prove the truth of the matter asserted. The testimony was in

response to questioning about whether the Walmart employee provided Chief Sawyer with any

additional information. It thus appears that, in context, the testimony was elicited to explain why

Chief Sawyer continued his investigation—someone familiar with common customer behaviors

found defendant’s behavior of making multiple “small purchases with the cash back option” to be

“odd,” prompting the chief to look into the issue further. Because this testimony was not admitted

to prove the truth of the matter asserted, it was not hearsay. See People v Chambers, 277 Mich

App 1, 11; 742 NW2d 610 (2007) (explaining that “a statement offered to show why police officers

acted as they did is not hearsay”).1

1

Defendant also argues that Chief Sawyer’s testimony about what the Walmart employee said

violated the Confrontation Clause because the employee did not testify at trial. See US Const, Am

VI; Const 1963, art 1, § 20. Most of Chief Sawyer’s disputed testimony cannot implicate the

Confrontation Clause because the chief did not testify as alleged by defendant—Chief Sawyer did

not testify that the Walmart employee (1) “identified [defendant] from surveillance videos and

photos” or (2) said that “he saw the type of financial crimes involved in this case ‘quite often’ and

[defendant’s] actions were consistent with that activity.” As for Chief Sawyer’s testimony that the

Walmart employee told him that he found defendant’s behavior “odd,” this testimony was elicited

to explain why Chief Sawyer continued his investigation, and therefore does not violate the

Confrontation Clause. See People v Henry (After Rem), 305 Mich App 127, 153-154; 854 NW2d

114 (2014) (explaining that “a statement offered to show the effect of the out-of-court statement

on the hearer does not violate the Confrontation Clause”) (quotation marks and citation omitted).

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Accordingly, only Chief Sawyer’s testimony about what the Stone Lodge owner and its

two employees said was hearsay. The question now becomes whether the erroneous admission of

this hearsay testimony affected defendant’s substantial rights. We conclude that it did not.

Without the inadmissible hearsay testimony, there was still sufficient evidence

demonstrating that the elements of embezzlement by an agent or employee were met: the money

belonged to Stone Lodge; defendant used Stone Lodge’s debit card to gain access to the money,

and she only had the debit card because she was in a position of trust with Stone Lodge as an

employee; and there was evidence that defendant converted the money for her own use without

Stone Lodge’s consent with an intent to defraud or cheat Stone Lodge. See People v Schrauben,

314 Mich App 181, 198; 886 NW2d 173 (2016) (listing the elements of embezzlement by an

employee). Defendant was identified in 19 videos at Walmart using the Stone Lodge debit card to

purchase items that were not for use at Stone Lodge; defendant was seen in these videos wearing

items that closely resembled her prior purchases, like some clothing and a watch; and defendant

was seen taking out large sums of cash back during these transactions and placing this cash in her

personal wallet. Defendant’s testimony regarding her use of petty cash and explanations for her

purchases was contradicted by other testimony, and there were no contemporaneous records or

receipts verifying the explanations defendant gave for purchases and cash-back transactions.

Finally, there was testimony that defendant intentionally concealed her cash-back transactions

from Stone Lodge’s accounting software, which supported a finding that defendant intended to

defraud or cheat Stone Lodge of this money. In light of this other evidence against defendant, the

error of admitting Chief Sawyer’s inadmissible hearsay testimony did not result in the conviction

of an innocent person because, even without the inadmissible hearsay evidence, there was

sufficient evidence to convict defendant of embezzlement and unlawful use of a financial

transaction device.

Further, the error of admitting the inadmissible hearsay testimony did not seriously affect

the fairness, integrity, or public reputation of the trial or result. Carines, 460 Mich at 763. As

stated above, there was sufficient evidence to convict defendant without the complained-of

evidence, and therefore, no prejudice occurred. Defendant argues that Chief Sawyer’s

inadmissible hearsay testimony was particularly damaging because it was later repeated by the

source of the statements—Stone Lodge’s owner and two employees—and that this repetition of

the statements bolstered the credibility of Stone Lodge’s owner and two employees. Contrary to

defendant’s argument, the fact that Stone Lodge’s owner and two employees were able to testify

about their statements, and, importantly, that defendant was given the opportunity to cross-

examine those witnesses about their statements, lessened the damage that the inadmissible hearsay

testimony had on the fairness, integrity, or public reputation of the trial. Accordingly, we conclude

that the evidentiary error of allowing into evidence Chief Sawyer’s inadmissible hearsay testimony

did not seriously affect the fairness, integrity, or public reputation of the trial or result.

B. OPINION TESTIMONY

Defendant argues that Chief Sawyer also gave improper expert-opinion testimony when he

testified about “the accuracy of insurance investigations” because he was “simply not qualified to

render an opinion about” that topic under MRE 702. We disagree that the at-issue testimony was

expert testimony subject to MRE 702.

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MRE 702 governs expert testimony and states:

If the court determines that scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine a

fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education may testify thereto in the form of an opinion or otherwise if

(1) the testimony is based on sufficient facts or data, (2) the testimony is the product

of reliable principles and methods, and (3) the witness has applied the principles

and methods reliably to the facts of the case.

MRE 701 governs the admission of non-expert, lay-witness testimony, and states:

If the witness is not testifying as an expert, the witness’ testimony in the

form of opinions or inferences is limited to those opinions or inferences which are

(a) rationally based on the perception of the witness and (b) helpful to a clear

understanding of the witness’ testimony or the determination of a fact in issue.

Testimony is lay-opinion testimony not subject to MRE 702 if it “do[es] not involve highly

specialized knowledge, and [is] largely based on common sense.” People v McLaughlin, 258 Mich

App 635, 658; 672 NW2d 860 (2003).

Chief Sawyer testified that he was previously involved in cases where someone filed an

insurance claim, and that insurance companies generally conduct their own investigation. He then

stated that he was aware that the insurance company in this case covered Stone Lodge’s claim,

agreed with the prosecutor’s statements that “insurance companies are not in the habit of giving

away money,” and agreed that the insurance company’s investigation in this case likely determined

that embezzlement occurred. Chief Sawyer did not testify that he believed embezzlement occurred

because the insurance company paid the claim, nor that he believed defendant embezzled money

from Stone Lodge.

This testimony was admissible opinion testimony because it was based on Chief Sawyer’s

own rational perception of insurance investigations and helped the jury determine whether

embezzlement occurred. Chief Sawyer’s testimony that insurance companies conduct

investigations before paying out claims was based on common knowledge and his prior

experience, not highly specialized knowledge. See McLaughlin, 258 Mich App at 658. His

testimony that the investigation in this case likely determined that embezzlement occurred was a

logical inference rationally based on the fact that the insurance company covered Stone Lodge’s

claim. Contrary to defendant’s argument on appeal, none of Chief Sawyer’s testimony was overly

dependent upon scientific, technical, or other specialized knowledge such that it was subject to

MRE 702.2

2

Defendant argues that the error of allowing Chief Sawyer to give expert testimony without being

qualified as an expert was particularly problematic because the testimony came from a police

officer. Again, Chief Sawyer did not give expert testimony, so there was no error in this respect.

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C. PROSECUTORIAL MISCONDUCT

Defendant next argues that the prosecution engaged in prosecutorial misconduct by

asserting during closing argument that the insurance company, through its investigation,

determined that wrongdoing had occurred because it paid Stone Lodge’s claim. Defendant did not

object to the prosecution’s statements or request a curative instruction, and therefore, this issue is

not preserved for appellate review. People v Bennett, 290 Mich App 465, 475; 802 NW2d 627

(2010). Unpreserved errors are reviewed for plain error affecting defendant’s substantial rights.

Carines, 460 Mich at 763.

“The test of prosecutorial misconduct is whether the defendant was denied a fair and

impartial trial.” People v Brown, 294 Mich App 377, 382; 811 NW2d 531 (2011). “Issues of

prosecutorial misconduct are decided case by case, and this Court must examine the entire record

and evaluate a prosecutor’s remarks in context.” People v Anderson, 331 Mich App 552, 565; 953

NW2d 451 (2020) (quotation marks and citation omitted). “Generally, prosecutors are given great

latitude regarding their arguments,” but there are limits. People v Mullins, 322 Mich App 151,

172; 911 NW2d 201 (2017). For instance, while a prosecutor can argue the evidence and all

reasonable inferences from that evidence, id, a prosecutor cannot mischaracterize the evidence or

argue facts not in evidence, People v Watson, 245 Mich App 572, 588; 629 NW2d 411 (2001).

The prosecution’s at-issue remarks in this case did not rise to the level of prosecutorial

misconduct. Stone Lodge’s owner testified that Stone Lodge had “employee dishonesty

coverage,” and that the insurance company covered Stone Lodge’s claim under its policy. From

this, it was reasonable to infer that the insurance company found evidence of wrongdoing—the

company covered Stone Lodge’s claim because it found a basis for doing so. Moreover, the

prosecution was clear that the insurance company’s payment of this claim was not evidence that

defendant embezzled from Stone Lodge. Contrary to defendant’s argument, the prosecution did

not argue facts not in evidence or improperly vouch for its case-in-chief by making these

statements. Rather, the prosecution’s closing remarks were properly limited to the evidence and

reasonable inferences from that evidence that related to the prosecution’s theory of the case. See

Mullins, 322 Mich App at 172.

D. OTHER-ACTS EVIDENCE

Defendant next argues that the prosecution improperly presented other-acts evidence that

was irrelevant, unfairly prejudicial, and admitted without a proper purpose, and that it did so

without providing reasonable notice of the prosecution’s intent to present the evidence or good

cause for waiting until trial to present the evidence. The other-acts evidence concerned defendant’s

gambling and absenteeism from work. Defendant objected to the admission of this evidence on

relevancy grounds, but did not object on grounds that the evidence was unfairly prejudicial, did

not have a proper non-propensity purpose, or was improperly noticed. Thus, to the extent that

Moreover, the jury was given a limiting instruction regarding how to consider police officer

testimony, and courts presume that juries follow their instructions. People v Bruner, 501 Mich

220, 228; 912 NW2d 514 (2018).

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defendant challenges the relevance of the evidence, the issue is preserved, but to the extent that

defendant argues that the evidence was unfairly prejudicial, admitted without a proper purpose, or

was improperly noticed, those issues are unpreserved. See People v Kimble, 470 Mich 305, 309;

684 NW2d 669 (2004) (“An objection based on one ground is usually considered insufficient to

preserve an appellate attack based on a different ground.”). Preserved evidentiary issues are

reviewed for an abuse of discretion, People v Dobek, 274 Mich App 58, 93; 732 NW2d 546 (2007),

while unpreserved errors are reviewed for plain error affecting defendant’s substantial rights,

Carines, 460 Mich at 763-764.

The prosecution concedes on appeal that the challenged evidence was other-acts evidence,

and so we assume for purposes of this opinion that it is. The admissibility of other-acts evidence

is governed by MRE 404(b)(1), which 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.

This rule is “inclusionary rather than exclusionary,” meaning that MRE 404(b) only bars other-

acts evidence in circumstances where “it is offered solely to show the criminal propensity of an

individual to establish that he acted in conformity therewith.” People v VanderVliet, 444 Mich 52,

65; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994) (quotation marks and citation omitted;

emphasis omitted).

Along with being admitted for a proper purpose, other-acts evidence, like all evidence,

must be relevant under MRE 401 and must not be unfairly prejudicial under MRE 403. See Dobek,

274 Mich App at 85. Relevance can be demonstrated through “reasonable inferences that make a

material fact at issue more probable or less probable than it would be without the evidence.” Id.

at 86 (quotation marks and citation omitted). Under MRE 403, relevant evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair prejudice. “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 Kowalski, 492 Mich 106, 137; 821 NW2d 14

(2012) (quotation marks and citation omitted).

In this case, several witnesses testified about defendant’s visits to the casino and regular

absence from work. Namely, Chief Sawyer testified about defendant’s withdrawals from ATMs

at the casino, sometimes withdrawing almost her entire paycheck at the casino shortly after it was

deposited and some of those transactions taking place during normal work hours. The chief also

testified that some Stone Lodge employees said that defendant enjoyed frequenting the casino

which was why she may have been having problems with attendance at work. Other witnesses

testified that defendant talked to them about going to the casino and how they had noticed recent

problems with defendant’s attendance at work.

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Contrary to defendant’s arguments on appeal, this evidence was relevant under MRE 401

and was admitted for the proper, non-propensity purpose of establishing defendant’s motive for

embezzling. The evidence tended to support that defendant embezzled money from Stone Lodge

to secure additional funds to fuel a possible gambling habit. Other evidence showed that

defendant’s use of Stone Lodge’s debit card overlapped with days that she withdrew money at the

casino, further tying defendant’s embezzlement to a possible gambling habit. Although motive is

not an essential element, evidence of motive is always relevant, People v Unger, 278 Mich App

210, 223; 749 NW2d 272 (2008), and MRE 404(b) specifically lists motive as a proper, non-

propensity purpose for admitting other-acts evidence. Further, defendant’s absence from work

tended to establish defendant’s opportunity to embezzle funds, which is also relevant and a proper,

non-propensity purpose for admitting the evidence.

Next, contrary to defendant’s argument on appeal, the probative value of this evidence was

not substantially outweighed by the danger of unfair prejudice to defendant. Defendant fails to

explain why she believes that this evidence would be given undue or preemptive weight by the

jury such that it would unfairly prejudicial. See Kowalski, 492 Mich at 137. Regardless, even

accepting that presenting the evidence to the jury carried some risk of causing unfair prejudice,

evidence of defendant’s motive for embezzling funds from Stone Lodge and her opportunity to do

so were both highly probative, and defendant does not explain why any potential risk of unfair

prejudice would substantially outweigh this probative value such that the evidence should have

been excluded under MRE 403.3

Defendant also points out, and the prosecution concedes, that defendant was not given

proper notice of the other-acts evidence presented at her trial. Under MRE 404(b)(2), a prosecutor

generally must provide reasonable notice of the intent to present other-acts evidence:

The prosecution in a criminal case shall provide written notice at least 14

days in advance of trial, or orally on the record later if the court excuses pretrial

notice on good cause shown, of the general nature of any such evidence it intends

to introduce at trial and the rationale, whether or not mentioned in subparagraph

(b)(1), for admitting the evidence.

For defendant to be entitled to appellate relief on the basis of the prosecution’s failure to

comply with MRE 404(b)(2), she must establish that this error was, more probably than not,

outcome determinative. See People v Jackson, 498 Mich 246, 278; 869 NW2d 253 (2015). The

lack of proper pretrial notice in this case did not result in the admission of substantively improper

3

Defendant also argues that it was error for the trial court to not give the standard limiting

instruction applicable to other-acts evidence. See M Crim JI 4.11. We disagree. A trial court

need only consider giving such a limiting instruction upon request. See People v Mardlin, 487

Mich 609, 616; 790 NW2d 607 (2010) (explaining that “upon request, the trial court may provide

a limiting instruction to the jury under MRE 105 to specify that the jury may consider the evidence

only for proper, noncharacter purposes”). It was not error for the trial court to not give a limiting

instruction when no such instruction was requested. Whether trial counsel’s failure to request such

an instruction amounted to ineffective assistance is a different issue, which we address in Section

II.F.

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other-acts evidence because the evidence was admissible as discussed above. Thus, despite not

being afforded the opportunity to argue against the admission of the evidence before trial,

defendant has not established that such arguments would have been availing and that the evidence

would not have been admitted or would have been limited in some way. See id. Further, while

defendant may have been surprised by the introduction of this evidence at trial, she has not

explained “how [she] would have approached trial or presented [her] defense differently had [she]

known in advance that” the evidence would be admitted. Id. at 278-279. For these reasons, we,

like our Supreme Court in Jackson, “cannot conclude that the defendant suffered outcome-

determinative prejudice from the prosecution’s failure to follow, and the trial court’s failure to

apply, MRE 404(b)(2).” Id. at 279. We lastly note that even without the evidence of defendant’s

gambling and absenteeism from work, the evidence against defendant was overwhelming. The

record, as a whole, leaves no doubt that the erroneous handling of the other-acts evidence was

harmless and did not undermine the reliability of the verdict against defendant. See id. at 280.

E. CUMULATIVE EFFECT

Defendant argues that the cumulative effect of the errors addressed above deprived her of

a fair trial. We disagree.

“The cumulative effect of several errors can constitute sufficient prejudice to warrant

reversal even when any one of the errors alone would not merit reversal, but the cumulative effect

of the errors must undermine the confidence in the reliability of the verdict before a new trial is

granted.” Dobek, 274 Mich App at 106. Only actual errors may be aggregated to demonstrate

cumulative error. People v Bahoda, 448 Mich 261, 292 n 64; 531 NW2d 659 (1995).

The only errors that occurred at trial were the admission of Chief Sawyer’s inadmissible

hearsay testimony and the prosecution’s failure to properly notice the other-acts evidence. We

conclude that, despite these errors, defendant was not denied a fair trial. The evidence against

defendant was overwhelming. Stone Lodge’s owner testified that defendant was not permitted to

use the cash-back option of the debit card, yet surveillance videos showed defendant doing so

repeatedly, and then placing the money in her personal wallet. The videos also showed defendant

buying numerous personal items that Stone Lodge’s owners and its employees agreed were clearly

not for Stone Lodge because personal items for the residents were not provided by the facility.

Moreover, the videos seemed to show defendant wearing some of the items—like certain clothing

and a watch—that video surveillance recorded her buying on earlier occasions. Further, while

defendant said that she placed all the money she withdrew using the debit card into a petty-cash

folder that Stone Lodge kept in the facility, Stone Lodge’s owner and its other employees testified

that Stone Lodge only had up to $25 in petty cash at any given time, not thousands of dollars like

defendant said. Also, while defendant recorded her transactions with Stone Lodge’s debit card in

Stone Lodge’s accounting software, she never documented the money that she withdrew. Instead,

when she recorded a purchase, she would list the cost of the item as the full transaction amount

including the cash withdrawal as part of the item’s cost, thereby concealing that she withdrew any

cash. “Because of the strong evidence of defendant’s guilt and because the claimed errors did not

compromise defendant’s theory of the case, we find that no reasonable juror would have voted for

acquittal if these errors did not occur,” and thus “the cumulative effect of the errors do not require

reversal.” People v Knapp, 244 Mich App 361, 388; 624 NW2d 227 (2001)

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F. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant lastly argues that defense counsel provided ineffective assistance by failing to

raise all of the alleged errors discussed above during defendant’s trial. We disagree.

Claims of ineffective assistance of counsel present mixed questions of fact and law. People

v Head, 323 Mich App 526, 539; 917 NW2d 752 (2018). Factual findings are reviewed for clear

error, while legal conclusions are reviewed de novo. Id. No evidentiary hearing was held in this

case, so our review is for errors apparent from the record. People v Lockett, 295 Mich App 165,

186; 814 NW2d 295 (2012).

We first note that defendant’s arguments that her trial counsel provided ineffective

assistance by (1) failing to object to Chief Sawyer’s testimony as it pertained to the Walmart

employee on grounds that it was hearsay and violated the Confrontation Clause, (2) failing to

object to Chief Sawyer’s testimony about the insurance company’s investigation on grounds that

he was not qualified to provide that testimony under MRE 702, (3) failing to object to the

prosecutor’s closing argument on grounds that it was not supported by facts in evidence and

improperly vouched for the prosecution’s case-in-chief, and (4) failing to object to the other-acts

evidence on grounds that it was inadmissible under MRE 401, MRE 403, and MRE 404(b)(1), are

all without merit. Any objection on those grounds would have been meritless for the reasons

explained throughout this opinion, and counsel cannot be found ineffective “for failing to raise

meritless or futile objections.” People v Putman, 309 Mich App 240, 245; 870 NW2d 593 (2015).

The only ineffective assistance claims that remain are whether defense counsel provided

ineffective assistance by (1) failing to object to Chief Sawyer’s hearsay testimony about statements

made by Stone Lodge’s owner and the two Stone Lodge employees, and (2) failing to object to the

lack of notice about the other-acts evidence under MRE 404(b)(2) and request a limiting

instruction.

“To prevail on a claim of ineffective assistance, a defendant must, at a minimum, show that

(1) counsel’s performance was below an objective standard of reasonableness and (2) a reasonable

probability exists that the outcome of the proceeding would have been different but for trial

counsel’s errors.” Head, 323 Mich App at 539 (quotation marks and citation omitted; alteration

removed). “[A] reasonable probability is a probability sufficient to undermine confidence in the

outcome.” People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018). This Court presumes

counsel was effective, and defendant carries a heavy burden of proving otherwise. Head, 323

Mich App at 539.

We agree with defendant that it was objectively unreasonable for her trial counsel to not

object to Chief Sawyer’s hearsay testimony, to not object to the lack of notice for the other-acts

evidence under MRE 404(b)(2), and to not request a limiting instruction.

The prosecution readily concedes on appeal that portions of Chief Sawyer’s testimony were

hearsay without an exception, and there was no strategic reason for defense counsel to allow that

testimony to come in as evidence. Likewise, the prosecution readily concedes that it failed to

comply with the notice requirements in MRE 404(b)(2), and, again, there was no strategic reason

for defense counsel not raising this issue before the trial court. Finally, because the prosecution

admitted other-acts evidence, defense counsel could have requested a limiting instruction, see

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People v Mardlin, 487 Mich 609, 616; 790 NW2d 607 (2010), and there was no strategic reason

for failing to do so.

Despite defense counsel’s performance, there is not a reasonable probability that, but for

defense counsel’s errors, the outcome of defendant’s trial would have been different, and the errors

do not otherwise undermine our confidence in the verdict.

Chief Sawyer’s hearsay testimony was minor and would have come into evidence anyway

through the testimonies of Stone Lodge’s owner and employees. While defendant contends that

the chief’s hearsay testimony bolstered the credibility of the other witnesses by corroborating what

they said, this assertion is unconvincing. Some of the hearsay statements were not in dispute (such

as the fact that Stone Lodge’s owner believed that defendant embezzled from the company), and

other statements were corroborated among Stone Lodge’s owners and employees themselves (like

the fact that only defendant had access to Stone Lodge’s debit card). The fact that Chief Sawyer’s

testimony also reflected this did not add further credibility to their testimonies. Further, that

defendant had the opportunity to cross-examine the source of the hearsay testimony—Stone

Lodge’s owner and employees—lessened the unreliability associated with hearsay testimony

generally. Lastly, and most importantly, even without the hearsay testimony, the evidence against

defendant was still overwhelming. For these reasons, defense counsel’s failure to object to Chief

Sawyer’s inadmissible hearsay testimony does not undermine our confidence in the verdict, and

we are not convinced that there is a reasonable probability that, but for defense counsel’s failure

to object to the testimony, the outcome of the proceedings would have been different.

Likewise, defense counsel’s failure to object to the lack of notice of the other-acts evidence

does not undermine our confidence in the verdict. Defendant has not presented any availing

arguments to support that the other-acts evidence would not have been admitted even had defense

counsel raised this objection. It therefore appears that the evidence would have ultimately been

admitted regardless of whether defense counsel objected. Accordingly, we cannot conclude that

there is a reasonable probability that the outcome of the proceedings would have been different

but for defense counsel’s failure to object.

Lastly, defense counsel’s failure to request a limiting instruction for the other-acts evidence

does not undermine our confidence in the verdict. Again, this was not a close case. Even without

considering the other-acts evidence, the evidence against defendant was overwhelming. We do

not believe that there is a reasonable probability that the outcome of the proceedings would have

been different had the trial court given a limiting instruction for the other-acts evidence.

Affirmed.

/s/ Amy Ronayne Krause

/s/ Christopher M. Murray

/s/ Colleen A. O’Brien

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