People of Michigan v. Michael Thorn Anderson

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 27, 2017
Plaintiff-Appellee,

v No. 330652
Lenawee Circuit Court
MICHAEL THORN ANDERSON, LC No. 15-017381-FC

Defendant-Appellant.

Before: SAWYER, P.J., and SERVITTO and RIORDAN, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial conviction of first-degree murder, MCL
750.316(1)(a) (premeditated). He was sentenced to life imprisonment without parole for his
first-degree murder conviction, with 473 days of jail credit. We affirm.

I. FACTUAL BACKGROUND

This appeal arises from the murder of Larry Smith, an elderly man with numerous health
problems, on July 20, 2014.

In early 2014, defendant and paraplegic Alison Kalbarchick1 lived in a trailer located on
property owned by Alison behind Smith’s house. Defendant was Alison’s full-time caregiver as
well as her boyfriend or “common law husband.” Defendant and Alison’s only source of income
was the public assistance that she received, and she and the defendant were frequently delinquent
on property taxes and utility bill payments.

In March or April 2014, Alison and defendant were evicted from the property where they
were living, and Smith allowed them to rent a space in his home. Barbara Minnick, Smith’s
sister, testified that Smith was looking for a caretaker who would assist with caring for his dogs
and would cook for him, as he lived alone. According to Barbara, defendant and Alison agreed
to pay rent and help with those tasks when they moved in with Smith.

1
A witness with the same last name as another witness will be referred to using his or her first
name.

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 In June 2014, Smith decided to initiate eviction proceedings against defendant and Alison
because they were not paying rent. Defendant intended to challenge the eviction, as he believed
that he and Alison did not need to pay rent because Smith’s home was in foreclosure and Smith
was not paying his mortgage payments. Animosity grew between Smith and defendant, and both
men would say negative things or make accusations about each other. As discussed later in this
opinion, Smith also told numerous witnesses that defendant was not taking care of him, was not
feeding him, and had physically hurt him. Additionally, Smith told several witnesses that he was
scared of defendant, and he frequently exhibited physical manifestations of this fear. However,
Alison testified at trial that defendant would help Smith, and that she had never seen defendant
harm or threaten Smith. She also stated that Smith never told her that he was afraid of defendant,
and Smith never seemed fearful of him.

After initiating the eviction proceedings in the district court in June 2014, Smith returned
to the courthouse several times. Each time, he appeared visibly afraid and distressed, and he
repeatedly asked for help with getting defendant and Alison out of his home as soon as possible.
Staff at the district court assisted Smith with filling out the court documents and called the Area
Agency on Aging on his behalf because they found Smith’s demeanor and statements about his
living situation so concerning. Additionally, the police were called to Smith’s home on several
occasions in June and July to address disputes that had arisen between Smith and defendant, as
well as Smith’s claims that defendant had threatened or harmed him. In the weeks prior to the
eviction hearing, Smith (1) told several people that defendant was mistreating or threatening him,
(2) replaced his bedroom door with a steel door, and (3) stored food at a neighbor’s house,
explaining that he needed to hide it from defendant and Alison. Smith also filed for a personal
protection order (“PPO”) against defendant, but the circuit court denied it.

Ultimately, friends and family members were unable to contact Smith during much of the
weekend on July 19, 2014, and July 20, 2014. When Barbara and a neighbor separately stopped
at Smith’s house to check on him and inquire about other matters on July 20, 2014, defendant
met each of them outside and acted in an unusual manner. Each time, defendant told the visitors,
among other things, that Smith left on Friday and had not returned.2

Barbara was suspicious after her encounter with defendant, so she immediately went to
her other brother’s house nearby. After consulting with him, she called the police. Deputy
David Batterson spoke with Barbara around 7:00 or 7:30 p.m. on July 20, 2014. He later went to
Smith’s residence at approximately 9:00 p.m. When Batterson arrived, defendant told him that
he had not seen Smith since Friday and had no idea where Smith was.

Sergeant Kraig Kourt met Deputy Batterson at Smith’s residence. Batterson and
defendant were talking inside about Smith’s whereabouts when Kourt arrived. Kourt heard
defendant tell Batterson that no one else was at the house that weekend and that he had been
there all weekend. While Kourt was listening to the conversation, he noticed drops of blood
leading from the kitchen to a heavy door nearby. Kourt interrupted the dialogue and asked

2
However, other neighbors testified at trial that they had briefly seen Smith at his property or
driving nearby on Saturday, July 19, 2014.

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defendant which room was behind the heavy door. Defendant identified the room as Smith’s
bedroom. Kourt checked the door knob, discovered that it was unlocked, and opened the door.
Smith was lying inside in a pool of blood that looked wet, shiny, and “reasonably fresh.” Kourt
testified that he remembered defendant saying, in surprise, “ ‘He’s in there?’ ” However, Kourt
thought that defendant’s surprised demeanor seemed fake and did not make sense in light of
defendant’s claim that he was home all weekend. Kourt testified that, after the body was
discovered, defendant did not ask any questions about Smith and did not show any concern for
him.

A small dog was also inside Smith’s bedroom, but there were no dog feces. The room
had been ransacked, and Kourt thought it “looked like a staged robbery.” The police,
paramedics, and medical examiner estimated, based on several factors, that Smith had been dead
for approximately four to seven hours before Kourt found him at 9:30 p.m.

When Kourt left Smith’s room, he “look[ed] at the table and . . . notice[d] [there was] a
piece of like the top of a chain-link fence, like a [sic] the part that you would ‘t’, like the ‘t’ part
where you would bring the post and crossbar together,” which seemed out of place to Kourt.
Kourt found the fence piece significant since the cause of Smith’s injuries appeared to be “force
blunt trauma,” and the dog kennels on Smith’s property were built with that kind of fence. There
were no other parts nearby.

Ultimately, the police took defendant to a patrol car. He agreed to speak with Batterson
and waived his Miranda rights, even though he was not in custody. During that interview, as
well as subsequent interviews, defendant consistently denied any involvement in the murder.
Defendant told Batterson that he was home from approximately 6:00 p.m. on Friday evening
through the time that Barbara came to the house on Sunday, and he never left the house.
Defendant also said that no one else came to the house.3 That night, the police located Smith’s
wallet after defendant told the police that it was located near the chicken coop on the property,
explaining to the police that he had last seen Smith in that area.

Two days later, defendant told Batterson that he knew where the keys to Smith’s car were
located, even though defendant had previously implied that Smith had left the house in his car on
Friday. Additionally, during subsequent police interviews, defendant provided inconsistent
statements regarding the last time that he saw Smith. He also provided inconsistent statements
regarding Smith’s car. Defendant first said that he had not seen Smith since Friday and did not
mention the car, but he later said that Smith’s car was at the house and that defendant put it in the

3
Although the record is unclear, it appears that defendant later contradicted this statement,
describing a different scenario involving “a little red truck” and the “Silver Lake Boys,” a group
including Smith which participated in illegal or suspicious activity, according to defendant.
Detective Gary Ward testified that throughout his investigation, “nobody knew anything about
the Silver Lake boys,” and there was no evidence that supported what defendant said about them.
Rather, the general understanding was that they “were the old guys who lived on Silver Lake
Highway that were all friends.”

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garage. During the interviews with Batterson, defendant expressed anger toward Smith, but
explained that he was mostly angry about how “this” was going to affect Alison.

Dr. Bader Cassin, the Lenawee County Medical Examiner, performed the autopsy on
Smith’s body on July 22, 2014. The cause of death was multiple blunt force injuries to the head
or “blunt trauma . . . to [the] skull.” However, Smith also had recently-inflicted wounds on his
leg, arm, back, shoulders, head, and face, as well as older wounds on his legs. Based on their
features, Dr. Cassin believed that the injuries were inflicted “by a long object that probably was a
little bit flat or blunt at the point of impact, but not so flat or broad that it was wider than you see
[sic].” Dr. Cassin testified that the pictures of the fence pipe proffered by the prosecution could
be consistent with the long, dowel-type object that may have caused Smith’s death and his other
injuries.

Following the discovery of Smith’s body, several police officers, forensic scientists, and
forensic analysts collected and analyzed evidence from the scene, as well as evidence from cell
phones associated with Smith, defendant, and Alison. In addition, David Yount, the canine unit
commander for the Michigan State Police in Lansing, took a cadaver dog to Smith’s residence to
execute a search warrant on September 3, 2014. The dog detected human remains in a large pile
of clothing. When Yount searched through the pile of clothing, he “found what appeared to be a
sweatshirt, a fleece with blood -- looked like blood on it, a lot of blood on it and other material.”
The dog did not locate anything else inside the house. Outside, the dog expressed interest in the
dog kennel. Yount testified that there “[a]bsolutely” was a change in the dog when it was near
the kennel, which was different than the signs that it usually displayed when it smelled another
animal or food. This change in the dog’s demeanor prompted Yount to search the area. Yount
found a pipe on top of the plywood roof of the dog kennel underneath another piece of plywood.4
The pipe was approximately 28 inches long.5

4
The prosecution believed that the pipe was the murder weapon.
5
No blood or DNA was found on the pipe. At trial, Detective Ward testified:
[A]nother thing that it’s probably important to mention is . . . on the kitchen/dining
room table within the residence when we were there that very first night when we
gained entry to the residence after the crime lab had finished, on the dining room
table was the opposite “t” connection to the missing “t” connection to the opposite
end of that pipe. I thought that it was extremely -- as an investigator I thought it
was extremely strange to walk into this house and to have just the “t” connection
by itself laying on the kitchen table with no other end. I did – we did look at all
the dog kennels on the property, we could not find a location where that other end
of pipe went. So, therefore, we found just the “t” connection by itself laying on the
dining room table and never found the pipe.
So when we found the pipe, that’s what give that pipe so much relevance as
possibly being that weapon because the other half was on the inside and why
wouldn’t the other end of that pipe be there also? Why would it be hid[den] under
a piece of plywood?

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 A forensic analyst reviewed communication events from phones associated with Smith,
Alison, and defendant between July 18, 2014, and August 15, 2014. He identified anomalies in
the calling pattern of defendant’s phone on July 18, 19, and 20, including that there was a break
in defendant’s “consistent, regular, heavy usage” between 2:48 p.m. and 5:07 p.m. on July 20,
2014. The analyst also stated, in light of earlier testimony about the content that was found on
Alison’s phone, that “[t]here were several, dozens of text messages to and from [Alison’s] phone
that should have been in this physical dump [of defendant’s phone]. And the only explanation if
there was no incoming but there were outgoing is that someone . . . deleted those text messages.”
He similarly testified that the fact that nothing was found on defendant’s phone did not match the
phone records, which showed numerous calls up until July 20, 2014, indicating that someone
either deleted the information or the information was lost as the result of a “severe malfunction.”
The analyst believed it was more likely that the cause was “someone wiping or performing a soft
reset, factory reset, hard reset, and wiping that information off the phone.”

At trial, DeAndrew Woodard testified that he met defendant in December 2014 while
incarcerated in the Lenawee County Jail. Woodard and defendant would talk on a day-to-day
basis and got to know each other well, both in person and through written notes conveyed by
other inmates. They began talking about “the revolution” and shared their backgrounds with
each other in order to develop trust. Woodard testified that defendant ultimately made the
following statements during one of their trust-building conversations in the context of developing
the “revolution”:

And I’m like, “What does that mean”? He said he couldn’t talk about it
really. I’m like, “Look, either you -- you know, you’re about it or you’re not.”

And he’s like, “Well, you know, you know a dude named Larry Smith?”

I’m like, “No.”

He was like, you know, “Well, I killed the -- killed the f***er.”

And I’m like, “Well, for what?”

He was like, “We was doing business, you know. He betrayed me. You
know, you kill my dog, you kill my cat, that sort of thing. You know, we from
New York, that’s how we get down. We show up with a hundred New York
niggers all with blow torches.”

And that was really kind of like, really, you know, it wasn’t nothing
elaborate or anything about it.

Woodard testified that defendant did not give a reason for murdering Smith during their
conversations other than that Smith had betrayed him. At trial, Woodard repeatedly
acknowledged that he provided Detective Gary Ward information about defendant and another

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inmate and testified at defendant’s trial because he wanted to help himself, but he had not
received any promises or deals from the prosecutor’s office in exchange for his testimony.6

At trial, Alison testified that she was not aware of any confrontations or interactions
between Smith and defendant during the weekend of Smith’s death. However, she spent much
of her time playing videogames in her bedroom with her door shut and the volume on high. She
also testified that defendant spent most of the day in her room on Sunday, July 20, 2014.

The defense presented evidence from one of Smith’s neighbors that Smith would have
many visitors “at times,” including some late at night. It also presented testimony from Dr.
Francisco Diaz, an assistant medical examiner from the Wayne County Medical Examiner’s
office. Dr. Diaz agreed that the cause of death was “inflicted blunt force injury.” He also had
“no doubt” that the pipe found on top of the dog kennel could have been used to inflict the
injuries on Smith’s skull. However, he did not believe that the pipe was used to inflict the sharp
injury to Smith’s knee. Specifically, Dr. Diaz did not think that the same weapon was used to
cause the injuries on Smith’s knee and the injuries on his head, as he did not believe that the
injury that ultimately fractured Smith’s femur bone was consistent with the t-type connection on
the pipe. Defendant also testified on his own behalf, denying that he killed or assaulted Smith
and providing his own account of the housing arrangement and his relationship with Smith in the
months and weeks leading up to Smith’s death. He gave extensive testimony in refutation of the
prosecution’s evidence.

As discussed, the jury found defendant guilty of first-degree murder.

II. SUFFICIENCY OF THE EVIDENCE

Defendant first argues that his first-degree murder conviction was supported by
insufficient evidence. We disagree.

A. STANDARD OF REVIEW

We review a challenge to the sufficiency of the evidence de novo. People v Henderson,
306 Mich App 1, 8-9; 854 NW2d 234 (2014). “We examine the evidence in a light most
favorable to the prosecution, resolving all evidentiary conflicts in its favor, and determine
whether a rational trier of fact could have found that the essential elements of the crime were
proved beyond reasonable doubt.” People v Dunigan, 299 Mich App 579, 582; 831 NW2d 243
(2013) (quotation marks and citation omitted). This Court’s review is deferential, as “[w]hen
assessing a challenge to the sufficiency of evidence, the trier of fact, not the appellate court,
determines what inferences may be fairly drawn from the evidence and the weight to be accorded
those inferences.” People v Malone, 287 Mich App 648, 654; 792 NW2d 7 (2010), overruled in

6
Defendant claimed that Woodard was a “rat” who made up defendant’s confession. Defendant
also stated that he had been attempting to mentor Woodard when he made those statements,
explaining that “it was more to stress to [Woodard] that the same thing that happened to [Smith]
could happen to him.”

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part on other grounds by People v Jackson, 498 Mich 246, 268 n 9 (2015); see also People v
Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000) (“The standard of review is deferential: a
reviewing court is required to draw all reasonable inferences and make credibility choices in
support of the jury verdict.”). Accordingly, in reviewing a challenge to the sufficiency of the
evidence, “[w]e do not interfere with the jury’s assessment of the weight and credibility of
witnesses or the evidence . . . .” Dunigan, 299 Mich App at 582.

B. ANALYSIS

“The elements of first-degree murder are (1) the intentional killing of a human (2) with
premeditation and deliberation.” People v Bennett, 290 Mich App 465, 472; 802 NW2d 627
(2010), citing MCL 750.316(1)(a). Additionally, “identity is an element of every offense.”
People v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008). Defendant only challenges the
sufficiency of the evidence showing that he was the perpetrator of the crime.

The jury’s verdict was supported by extensive evidence. Although there was no forensic
evidence that conclusively connected defendant to the crime, the prosecution presented evidence
that defendant confessed to the crime and presented overwhelming circumstantial evidence from
which a rational jury could find, beyond a reasonable doubt, that defendant murdered Smith.
“Circumstantial evidence and reasonable inferences arising therefrom may constitute proof of the
elements of [a] crime.” Bennett, 290 Mich App at 472; see also People v Sullivan, 290 Mich
414, 418; 287 NW 567 (1939) (stating that identity “may be established by circumstantial
evidence alone”).

Notably, “the accused’s motive in committing an alleged crime is always relevant
because it bears on either his identity as the perpetrator of the offense or . . . the strength of his
defense . . . .” People v Flynn, 93 Mich App 713, 722; 287 NW2d 329 (1979); see also People v
Herndon, 246 Mich App 371, 412-413; 633 NW2d 376 (2001) (stating that motive can be
helpful to show the necessary elements of a crime, even if motive is not an essential element
itself). “In cases in which the proofs are circumstantial, evidence of motive is particularly
relevant.” People v Unger, 278 Mich App 210, 223; 749 NW2d 272 (2008).

Here, the prosecution presented extensive evidence showing that defendant had a specific
reason to be angry with Smith, who was in the process of evicting him and Alison for
nonpayment of rent. Notably, a court date was set for the Wednesday after Smith’s death to
evict defendant and Alison out of the house. It is undisputed that defendant believed that he did
not need to pay rent because Smith’s home was in foreclosure, Smith was not paying his
mortgage payments, and defendant believed that Smith was committing “fraud” by demanding
rent payments from defendant and Alison. Although there was evidence that defendant was
planning to move out of Smith’s residence at the time of the eviction proceedings, numerous
witnesses confirmed that defendant was upset and “in a panic” about the eviction, that he
intended to fight the eviction, and that he did not believe that he could pursue resources for
Alison if they were evicted.

Additionally, multiple witnesses were aware that tension and animosity had developed
between Smith and defendant, and that the police had been called to the house on more than one
occasion in the weeks prior to Smith’s death. Even Barbara, who frequently communicated with

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defendant and recognized that defendant appeared to be concerned about Smith, confirmed the
growing animosity between Smith and defendant. Defendant expressed that he was angry at
Smith during the interviews with Deputy Batterson. Likewise, defendant’s disjointed account at
trial of the events giving rise to the eviction proceedings and his intent to fight the eviction
reveal, at a minimum, frustration toward Smith and the way in which the landlord-tenant dispute
progressed, as well as the complicated—and contradictory—relationship that he shared with
Smith.

Along with the nonpayment of rent issue, numerous witnesses testified that Smith also
was attempting to evict defendant and Alison—and obtain a PPO against defendant—because he
was afraid of defendant, defendant and Alison were eating his food, defendant was not feeding
him, and defendant was not assisting with Smith’s care. Smith told several people that he was
hiding his food from defendant and Alison, and Sharon Benchich and Jennifer Thomas
confirmed that Smith stored food at their house because he was scared. Smith also told
witnesses that defendant had pushed him and broken his cane. “[E]vidence of the prior assaults
by defendant upon the victim tends to provide defendant’s motive, intent or absence of accident.”
People v Morris, 139 Mich App 550, 557; 362 NW2d 830 (1984); see also People v Orr, 275
Mich App 587, 592; 739 NW2d 385 (2007) (citing Morris). Consistent with his expressions of
fear and distress to others, Smith replaced his bedroom door with a secure steel door—i.e., one
that is typically used as the front door to a residence—approximately one month before his death.
Moreover, police officers and court employees suggested that Smith pursue a PPO against
defendant in light of Smith’s statements about what was occurring inside his home.7

Similarly, “evidence of [a] defendant’s prior threats against the victim [are] highly
probative evidence of his motive and identity in the killing of the victim.” People v Armentero,
148 Mich App 120, 133; 384 NW2d 98 (1986). Numerous witnesses testified that Smith said
that defendant had threatened him and that he was afraid that defendant would hurt or kill him,
partially due to defendant’s proficiency in martial arts. Family members, friends, police officers,
court employees, and adult protective services workers recounted numerous conversations with
Smith regarding the extent of his fear of defendant, the fact that he was afraid to be inside his
home, and the steps that he had taken to protect himself from defendant.

Other circumstantial evidence also provides substantial support for a finding that
defendant committed the crime. Defendant consistently maintained that he was in the house
from approximately 6:00 p.m. on Friday evening through the time that Barbara came to the
house on Sunday, that he never left the property, and that no one came to the house except family
members. Alison similarly testified that defendant was home the entire weekend, as far as she
knew. Accordingly, it is apparent that defendant had a clear opportunity to commit the crime.

Following the lead of the cadaver dog, police found a fence pipe on top of the plywood
roof of the kennel underneath another piece of plywood. That location was within a few feet of
where Timothy Rice saw an African-American male at approximately 3:00 p.m. on Sunday, July
20, 2014, who did not wave when Rice waved and, instead, “kind of cupped his arm . . . [to]

7
Smith filed a petition for a PPO, but it was denied.

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block his face.” As Detective Ward noted, it appears significant that the opposite end of the pipe
was found on the dining room table on the night of the murder, especially given Kourt’s
observation that there were no other parts nearby, which could have indicated that someone was
working on the part inside. Additionally, Dr. Cassin testified that the pictures of the pipe could
be consistent with the long, dowel-type object that may have caused Smith’s death and his other
injuries.8 Considered together, a jury could reasonably infer from this evidence that defendant
had easy access to the likely murder weapon in this case.

Further, medical professionals and law enforcement personnel consistently estimated that
Smith’s death occurred approximately four to seven hours before his body was found (i.e.,
approximately between 2:00 and 5:00 p.m.). Correspondingly, one of the abnormalities in the
calling pattern of defendant’s phone was a break in his “consistent, regular, heavy usage”
between 2:48 p.m. and 5:07 p.m. on July 20, 2014.

Although the recordings of Batterson’s interviews with defendant were not provided for
our review on appeal, it appears from the trial transcript that defendant’s explanations for how
the murder may have occurred were nonsensical and unsupported by any other data or evidence.
Defendant also provided conflicting stories to visitors and investigators regarding the location of
Smith’s car and whether he had seen it or moved it during the weekend. Notably, a jury could
infer from the fact that defendant told the police where to find Smith’s wallet9 and keys that
defendant had more knowledge regarding Smith’s whereabouts during the weekend than he
claimed at trial. Considered in conjunction with the other evidence, Barbara’s and Thomas’
testimony regarding their unusual encounters with defendant provides further evidence from
which the jury could infer that defendant did not want other individuals to come near the house
on July 20, 2014, the day of the murder.

Defendant told visitors that Smith lost his cell phone, and the police never located the cell
phone that Smith was using immediately prior to his death. However, during a search of the
property, the police found what appeared to be a cell phone in the fire pit, which appeared
consistent with the pictures of Smith’s phone on the empty phone boxes seized from Smith’s car.
Barbara testified that it was unlike Smith to go without a phone for days, suggesting that Smith
would have taken action if he had “lost” his phone.

Significantly, when defendant’s cell phone was recovered, there was no data contained
within it. An analyst testified that the fact that nothing was found on defendant’s phone was
inconsistent with the cell phone records, which showed many calls up until July 20, 2014. The
experts testified that it was most likely that someone had reset or wiped the information from

8
Although Dr. Diaz believed that it was more likely that an instrument other than the pipe
caused the injury to Smith’s femur bone, he had “no doubt” that the pipe could have been used to
inflict the injuries on Smith’s skull.
9
Although defendant claimed that this knowledge was based on where defendant last saw Smith
before his death, this Court must view the evidence in the light most favorable to the prosecution.
Dunigan, 299 Mich App at 582.

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defendant’s phone. Additionally, text messages that were, in fact, sent from defendant’s phone
to Alison’s phone, according to the logs kept by the cell phone company and data pulled from the
phones, had been deleted on Alison’s phone.

Lastly, Woodard testified that defendant confessed that he murdered Smith while
Woodard and defendant were in jail together. It is significant that the language recounted by
Woodard was consistent with the way in which Stephanie Caulkins had heard defendant threaten
Smith. Specifically, both witnesses’ accounts of defendant’s statements included references to
the way in which conflict is handled in New York, and defendant acknowledged at trial that he
came to the Midwest from New York in 2008.

In sum, it was the jury’s responsibility, in assessing the weight of the evidence and the
credibility of the witnesses, to determine whether (1) to credit the circumstantial evidence of
identity proffered by the prosecution and Woodard’s account of defendant’s confession, or (2) to
credit defendant’s trial testimony. See Dunigan, 299 Mich App at 582. The facts in this case
give rise to a series of reasonable inferences concerning defendant’s identity as the murderer,
flowing from defendant’s motive, behavior, and opportunity to kill Smith, as well as other
unusual circumstances from the weekend of Smith’s death. See Nowack, 462 Mich at 400.
Although most of the links in the prosecution’s chain of evidence against defendant are
circumstantial, the combined inferences flowing from the evidence are neither speculative nor
irrational, and they plainly provided a basis for the jury to rationally conclude beyond a
reasonable doubt that defendant committed the murder. See Dunigan, 299 Mich App at 582.

Defendant denied any involvement in Smith’s murder at trial, and his testimony largely
consisted of explanations for, or alternative framings of, the prosecution’s evidence. Again,
however, this Court must “draw all reasonable inferences and make credibility choices in support
of the jury verdict.” Nowack, 462 Mich at 400.

Defendant’s sufficiency of the evidence claim must fail.

III. GREAT WEIGHT OF THE EVIDENCE

Next, defendant argues that his first-degree murder conviction was against the great
weight of the evidence. We disagree.

A. STANDARD OF REVIEW AND APPLICABLE LAW

Defendant failed to preserve this claim by moving for a new trial in the trial court.10
People v Cameron, 291 Mich App 599, 617-618; 806 NW2d 371 (2011). Thus, our review of
this issue is limited to plain error affecting defendant’s substantial rights. Id. at 618; see also
People v Musser, 259 Mich App 215, 218; 673 NW2d 800 (2003). To demonstrate plain error, a

10
On July 23, 2015, defendant filed a motion to remand with his brief on appeal, which this
Court denied. People v Anderson, unpublished order of the Court of Appeals, issued August 18,
2016 (Docket No. 330652).

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defendant must show that (1) an error occurred, (2) the error was clear or obvious, and (3) “the
plain error affected [the defendant’s] substantial rights,” which “generally requires a showing of
prejudice, i.e., that the error affected the outcome of the lower court proceedings.” People v
Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Even if a defendant establishes a plain
error that affected his substantial rights, “[r]eversal is warranted only when the plain, forfeited
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; second alteration
in original).

The test to determine whether a verdict is against the great weight of the evidence
is whether the evidence preponderates so heavily against the verdict that it would
be a miscarriage of justice to allow the verdict to stand. People v McCray, 245
Mich App 631, 637; 630 NW2d 633 (2001). . . . “[U]nless it can be said that
directly contradictory testimony was so far impeached that it ‘was deprived of all
probative value or that the jury could not believe it,’ or contradicted indisputable
physical facts or defied physical realities, the trial court must defer to the jury’s
determination.” Id. at 645-646 (citation omitted). [Musser, 259 Mich App at
218-219 (second alteration in original).]

Likewise, “[g]enerally, a verdict may be vacated only when the evidence does not reasonably
support it and it was more likely the result of causes outside the record, such as passion,
prejudice, sympathy, or some other extraneous influence.” People v Lacalamita, 286 Mich App
467, 469; 780 NW2d 311 (2009). In most cases, “conflicting testimony or questions concerning
the credibility of the witnesses are not sufficient grounds for granting a new trial.” People v
Brantley, 296 Mich App 546, 553; 823 NW2d 290 (2012). See also People v Lemmon, 456 Mich
625, 642-647; 576 NW2d 129 (1998); Unger, 278 Mich App at 232.

B. ANALYSIS

Under this issue, defendant incorporates by reference his arguments from his sufficiency
of the evidence claim. For the same reasons previously discussed, given the overwhelming
evidence presented by the prosecution, the jury’s verdict was not against the great weight of the
evidence.

However, defendant also argues that “Larry Smith’s various reports of his fear of Mr.
Anderson were a huge part of the circumstantial case. To the extent this fear was the product of
his mental difficulties, the verdict is against the great weight of the evidence.” Contrary to
defendant’s claims, whether Smith’s fear of defendant resulted from “mental difficulties” was a
question of witness credibility for the jury to decide in light of the conflicting evidence in the
record. Evidence was presented regarding defendant’s demeanor and reputation that
contradicted Smith’s statements to others about defendant and Caulkins’ testimony. For
example, witnesses frequently recognized defendant’s dedication to Alison’s care and indicated
that he was polite during their encounters with him. Evidence also was presented that elevated
ammonia levels or encephalopathy may have impacted Smith’s mental status on certain
occasions. However, numerous individuals testified that Smith did not seem confused, forgetful,

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or out of touch with reality, despite his health problems. Instead, witnesses stated that they
perceived Smith to be scared and “a nervous wreck,” not mentally or psychologically unstable.

Further, as defendant notes in his brief, Smith’s testimony was analogous to Caulkins’
testimony. Although defendant claims that Caulkins had her own mental difficulties as well,
there is no indication that Caulkins’ testimony, Smith’s statements before his death, and other
witnesses’ recollections of Smith’s demeanor were “so far impeached that [this evidence] ‘was
deprived of all probative value or that the jury could not believe it,’ or [that it] contradicted
indisputable physical facts or defied physical realities . . . .” Musser, 259 Mich App at 219.
Thus, we must defer to the jury’s assessment of the witnesses’ credibility. Brantley, 296 Mich
App at 553; Musser, 259 Mich App at 219.

Defendant also appears to argue that the verdict was against the great weight of the
evidence in light of the proceedings, or lack thereof, involving Woodard’s criminal charges.
Defendant appears to claim that the verdict was against the great weight of the evidence because
the jury was unable to fully evaluate Woodard’s credibility given the fact that it was not
informed of the prosecution’s future plans for Woodard’s case. Again, however, generally
speaking, “conflicting testimony or questions concerning the credibility of the witnesses” are not
sufficient grounds for granting a new trial. Brantley, 296 Mich App at 553. Likewise, in raising
this confusing argument, defendant fails to explain how Woodard’s testimony “was so far
impeached that it was deprived of all probative value or that the jury could not believe it, or
contradicted indisputable physical facts or defied physical realities . . . .” Musser, 259 Mich App
at 218-219.

Thus, defendant has failed to establish a plain error affecting his substantial rights. See
Carines, 460 Mich at 763. The jury’s verdict was not against the great weight of the evidence.

IV. PROSECUTORIAL MISCONDUCT

Defendant claims that the prosecution committed misconduct and violated his due
process rights when it failed to reveal the deal offered to Woodard and proffered an excessive
amount of bloody evidence. We disagree.

A. STANDARD OF REVIEW

All of defendant’s prosecutorial misconduct claims are unpreserved or waived.11
Unpreserved claims of prosecutorial misconduct and unpreserved evidentiary claims are

11
“In order to preserve an issue of prosecutorial misconduct, a defendant must
contemporaneously object and request a curative instruction.” Bennett, 290 Mich App at 475.
Defendant did not object to any of the purported instances of prosecutorial misconduct identified
on appeal. Thus, defendant’s claims are unpreserved.
Two other preliminary matters are worth noting with regard to defendant’s claims
concerning the evidence admitted during Detective Ward’s testimony. First, defendant’s claim
with regard to this evidence appears to be an evidentiary claim disguised as a claim of

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reviewed for plain error affecting the defendant’s substantial rights. Bennett, 290 Mich App at
475-476; People v Ackerman, 257 Mich App 434, 446; 669 NW2d 818 (2003). In addition to the
principles applicable to the plain error standard of review previously discussed, “[this Court]
cannot find error requiring reversal [based on a claim of prosecutorial misconduct] where a
curative instruction could have alleviated any prejudicial effect.” Bennett, 290 Mich App at 476
(quotation marks and citations omitted; alteration in original). See also Unger, 278 Mich App at
234-235.

B. ANALYSIS

“Given that a prosecutor’s role and responsibility is to seek justice and not merely
convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” People v Roscoe, 303 Mich App 633, 648; 846 NW2d 402 (2014) (quotation
marks and citation omitted). This Court reviews prosecutorial misconduct claims on a case-by-
case basis, examining the prosecutor’s remarks in context. People v Mann, 288 Mich App 114,
119; 792 NW2d 53 (2010); People v Dobek, 274 Mich App 58, 63-64; 732 NW2d 546 (2007).

First, there is no basis in the record for concluding that the prosecution committed
misconduct or denied defendant a fair trial by (1) giving Woodard “the deal of a lifetime,” (2)
“dragging [its] heels until [defendant’s] case ha[d] concluded, in order to avoid having the jury
instructed that any deal could be used to evaluate Mr. Woodard’s credibility” consistent with M
Crim JI 5.13, or (3) otherwise failing to reveal “whatever deal Mr. Woodard received . . . .”
Woodard repeatedly testified that (1) no one from the prosecutor’s office promised him anything
in exchange for his testimony at defendant’s trial, (2) he did not know whether the prosecutor
was going to offer him anything in the future, and (3) neither a plea nor a trial were pending in
his case at the time of defendant’s trial. Defendant has failed to cite any authority indicating that
the prosecutor had an obligation to disclose during defendant’s trial any future plans related to
Woodard’s case that had not yet been revealed to Woodard. Moreover, there is no evidence in
the record from which we could conclude that the prosecution withheld information in order to
preclude the jury from fully evaluating Woodard’s credibility.12 Defendant offers pure
prosecutorial misconduct. Nevertheless, because he failed to object to the admission of the
evidence on any ground, his claims are unpreserved and subject to the same standard of review
regardless of the way in which they are framed. See Bennett, 290 Mich App at 475; People v
Ackerman, 257 Mich App 434, 446; 669 NW2d 818 (2003).
Second, defendant waived any error related to the admission of the evidence during
Detective Ward’s testimony, whether on the basis of an evidentiary error or prosecutorial
misconduct. Defense counsel expressly stated that he had no objection to each of the exhibits
admitted by the prosecution. A party’s affirmative statement that it has no objection to the
admission of evidence constitutes a waiver. People v Kowalski, 489 Mich 488, 504-505; 803
NW2d 200 (2011); People v McDonald, 293 Mich App 292, 295; 811 NW2d 507 (2011).
Further, based on the discussion between the trial court and the parties’ attorneys at the
beginning of the trial, it appears that the defense may have stipulated to the admission of the
photographs admitted by the prosecution.
12
We will not consider the screenshot of Woodard’s current status on the Michigan Department
of Corrections website, which was attached as an exhibit to defendant’s brief on appeal. “[I]t is

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speculation, which cannot serve as a basis for granting a new trial based on prosecutorial
misconduct.

Defendant also has failed to establish a plain error affecting his substantial rights. The
record clearly shows that any alleged error in this regard did not affect the outcome of the
proceedings. See Carines, 460 Mich at 763. The gravamen of defendant’s claim is that the
prosecution’s delay in negotiating with Woodard, or failure to disclose any deal that it had made
with Woodard, precluded the jury from fully evaluating Woodard’s credibility in accordance
with the principles for evaluating credibility described in M Crim JI 5.13. Such an instruction
was not provided in this case based on the fact that there was no testimony that Woodard had
been offered an agreement in exchange for his testimony.13 However, Woodard’s testimony, the
attorneys’ questions, and the attorneys’ arguments comprehensively presented, for the jury’s
evaluation, facts that could undermine Woodard’s credibility, including his explicit self-interest
in testifying and hope to secure a deal through his testimony at defendant’s trial.

As defendant acknowledges in his brief on appeal, “Woodard was candid about his
reason for testifying.” Woodard testified that he met defendant in December 2014 while
incarcerated in the Lenawee County Jail. He had been charged with first-degree home invasion
and two counts of assault with intent to commit robbery while armed, and he acknowledged that
the charges carried a maximum potential sentence of life in prison. Most significantly, Woodard
acknowledged that he gave Detective Ward information about defendant and another inmate
because he wanted to help himself. Woodard testified that Detective Ward indicated that he
could not do anything for Woodard or make any promises, but he would put in a good word for
Woodard. Woodard expressly stated that one of his motivations for revealing defendant’s
confession was helping himself in light of his pending criminal case.

Defense counsel had an extensive opportunity to cross-examine Woodard. Counsel
questioned Woodard regarding the details of his case, whether he had a trial or plea “coming up,”
and whether his case had “been resolved yet.” Woodard acknowledged that he told Detective
Ward that he “knew how this stuff worked,” and confirmed that he was referring to the fact that
he “was looking to help [his] situation.”14 Woodard reiterated that he told Detective Ward that
he wanted to give him some information and specifically stated the personal benefit that he
hoped to receive from providing that information. Defense counsel repeatedly elicited testimony
on cross-examination that the prosecution had not yet offered anything to Woodard, and that
Woodard hoped that his testimony during defendant’s trial would benefit him in his case and
“the system will help [him].” Thus, because Woodard’s intentions were clearly presented to the

impermissible to expand the record on appeal.” People v Powell, 235 Mich App 557, 561 n 4;
599 NW2d 499 (1999); see also MCR 7.210(A)(2). Nevertheless, contrary to defendant’s
claims, the current status of Woodard’s case has no bearing on whether the prosecutor’s conduct
denied defendant a fair trial during his case.
13
The applicability of M Crim JI 5.13 is further discussed later in this opinion.
14
However, Woodard also testified that he was not looking to help his situation during his
conversations with defendant.

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jury, defendant has failed to establish that the prosecutor’s purported failure to disclose the status
of Woodard’s case constituted a plain error affecting his substantial rights.

Next, as discussed, defendant waived his claims regarding the admission of the “bloody
evidence.” Kowalski, 489 Mich at 504-505; McDonald, 293 Mich App at 295. Nevertheless,
defendant has failed to establish a plain error affecting his substantial rights.

As defendant emphasizes, the crucial issue at trial was whether defendant committed the
murder. As defendant recognizes in his brief on appeal, Detective Ward acknowledged that none
of the evidence introduced during his testimony conclusively connected defendant to the crime.
This acknowledgement likely reduced the prejudicial effect of the evidence admitted during
Ward’s testimony. Moreover, as explained, circumstantial evidence proved beyond a reasonable
doubt that defendant was the perpetrator of the murder. Thus, this Court need not consider
whether the prosecutor committed misconduct in introducing this evidence, or whether the trial
court’s admission of the evidence was erroneous, as defendant cannot show that the purported
error affected the outcome of the trial. See Carines, 460 Mich at 763.

V. JURY INSTRUCTIONS

Defendant argues that his rights to due process and a fair trial were violated when the trial
court failed to properly instruct the jury. We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

As an initial matter, defendant waived his right to appeal any instructional error when
defense counsel expressly affirmed the trial court’s instructions. Waiver is “the intentional
relinquishment or abandonment of a known right.” People v Carter, 462 Mich 206, 215; 612
NW2d 144 (2000) (quotation marks and citation omitted). “One who waives his rights under a
rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver
has extinguished any error.” Id. (quotation marks and citation omitted). “When defense counsel
clearly expresses satisfaction with a trial court’s decision, counsel’s action will be deemed to
constitute a waiver.” Kowalski, 489 Mich at 503.

Even if this issue had not been waived, it is, at best, unpreserved, as a party must object
or request a particular jury instruction before the jury deliberates to preserve an instructional
error for review. MCR 2.512(C); People v Gonzalez, 256 Mich App 212, 225; 663 NW2d 499
(2003), disapproved on other grounds 496 Mich 967 (2003); People v Sabin, 242 Mich App 656,
657; 620 NW2d 19 (2000). Again, our review of unpreserved issues is limited to plain error
affecting defendant’s substantial rights. People v Jackson, 313 Mich App 409, 421; 884 NW2d
297 (2015); see also Sabin, 242 Mich App at 657 (“Absent an objection or request for an
instruction, this Court will grant relief only when necessary to avoid manifest injustice.”).

B. ANALYSIS

Jury instructions are to be read as a whole rather than extracted piecemeal to establish
error. Kowalski, 489 Mich at 501. They “must clearly present the case and the applicable law to
the jury. The instructions must include all elements of the charged offenses and any material
issues, defenses, and theories if supported by the evidence.” People v McGhee, 268 Mich App

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600, 606; 709 NW2d 595 (2005) (citations omitted). “[A]n imperfect instruction is not grounds
for setting aside a conviction if the instruction fairly presented the issues to be tried and
adequately protected the defendant’s rights.” Kowalski, 489 Mich at 501-502; see also People v
Kurr, 253 Mich App 317, 327; 654 NW2d 651 (2002) (“No error results from the absence of an
instruction as long as the instructions as a whole cover the substance of the missing
instruction.”).

Defendant contends that he was denied due process when the jury was improperly
instructed. He first argues that he was entitled to a jury instruction consistent with M Crim JI
4.14. M Crim JI 4.14 provides:

You have heard testimony about the use of a tracking-dog. You must consider
tracking-dog evidence with great care and remember that it has little value as
proof. Even if you decide that it is reliable, you must not convict the defendant
based only on tracking-dog evidence. There must be other evidence that the
defendant is guilty.

The prosecution concedes that this Court previously held in People v Perryman, 89 Mich
App 516, 524; 280 NW2d 579 (1979), that when tracking-dog evidence has been admitted at
trial, the “court has a duty, even absent a request by counsel, to inform the jury that tracking dog
evidence: must be considered with caution; is of slight probative value; and if found reliable,
cannot support a conviction in the absence of other direct evidence of guilt.” However,
subsequent panels of this Court have found that a trial court’s failure to give a cautionary
instruction on tracking-dog evidence was harmless error. People v McMillen, 126 Mich App
211, 214; 336 NW2d 895 (1983); People v McRaft, 102 Mich App 204, 210-211; 301 NW2d 852
(1980).

As previously discussed with regard to defendant’s sufficiency of the evidence claim,
overwhelming circumstantial evidence supported the jury’s finding that defendant was the
perpetrator of Smith’s murder. Considering the evidence as a whole, the tracking dog evidence
was insignificant. Thus, defendant is unable to demonstrate that he was prejudiced by the trial
court’s failure to provide M Crim JI 4.14, as the instruction merely requires that a defendant
cannot be convicted solely based on tracking dog evidence, given the fact that tracking dog
evidence has little evidentiary value, see M Crim JI 4.14, and the record clearly shows that
defendant was convicted based on extensive evidence in addition to the tracking dog evidence.
See Carines, 460 Mich at 763-764.

Next, defendant argues that he was entitled to a jury instruction consistent with M Crim
JI 5.13. M Crim JI 5.13 provides:

(1) You have heard testimony that a witness, [name witness], made an
agreement with the prosecutor about charges against [him / her] in exchange for
[his / her] testimony in this trial. You have also heard evidence that [name
witness] faced a possible penalty of [state maximum possible penalty] as a result
of those charges.

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 (2) You are to consider this evidence only as it relates to [name
witness]’s credibility and as it may tend to show [name witness]’s bias or self-
interest.

The instruction also includes the following use note:

This instruction should be used only where evidence has been elicited
concerning the sentencing advantages of a plea or dismissal agreement offered in
exchange for a witness’s testimony. If that evidence relates to the same offense
with which the defendant is charged, the court should reinstruct in accord with M
Crim JI 2.23 that the penalty facing the defendant is not to be considered in
deciding the case. [M Crim JI 5.13, Use Note.]

Notably, no evidence was elicited at trial that the sentencing advantages of a plea or a
dismissal agreement had been offered in exchange for Woodard’s testimony. To the contrary, as
discussed, Woodard consistently testified that the prosecution had not offered him a deal or
anything else in exchange for his testimony at the time of defendant’s trial, even though he
hoped to personally benefit in his own case from testifying against defendant. Defendant argues
that he would have been entitled to the instruction “had Mr. Woodard’s situation been revealed
in a forthright manner by the [p]rosecutor,” but, as previously discussed, there is no indication
that the prosecutor improperly withheld any information pertinent to Woodard’s testimony.
Thus, the trial court properly omitted M Crim JI 5.13 from the jury instructions, as it was not
supported by the evidence. See McGhee, 268 Mich App at 606 (“The instructions must include .
. . any material issues, defenses, and theories if supported by the evidence.”) (emphasis added).

Defendant counters that the trial court should have provided a modified version of the
jury instruction. The primary purpose of M Crim JI 5.13, formerly CJI2d 5.13, “is to raise the
jury’s awareness of the potential ulterior motives of the witness” by “caution[ing] the jury that
the witness may have some reason not to testify truthfully.” People v Lockett, 295 Mich App
165, 186; 814 NW2d 295 (2012). Here, the jurors were instructed at the beginning and the end
of the trial that it was their job to assess the credibility of the witnesses, and they were provided
questions to consider in assessing the witnesses’ credibility. Significantly, the trial court twice
instructed the jury, consistent with M Crim JI 2.6, that it should consider whether the witnesses
have any bias, prejudice or personal interest in how the case is decided, and whether the
witnesses have any “special reason to tell the truth or any special reason to lie[.]” The parties’
extensive direct and cross-examination of Woodard was more than sufficient to put the jury on
notice that Woodard may have had a reason not to testify truthfully at defendant’s trial, and that
the jury should consider, consistent with the trial court’s instructions, whether Woodard’s
testimony was tainted by bias or self-interest.

In sum, there is no indication that the trial court’s failure to provide instructions
consistent with M Crim JI 4.14 and M Crim JI 5.13 affected the outcome of the proceedings.
Thus, defendant has failed to establish that the jury instructions provided by the trial court
constituted a plain error affecting defendant’s substantial rights, see Carines, 460 Mich 763;
Jackson, 313 Mich App at 421, or resulted in manifest injustice, Sabin, 242 Mich App at 657.

VI. CONCLUSION

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Defendant has failed to establish that any of his claims warrant relief.

Affirmed.

/s/ David H. Sawyer
/s/ Deborah A. Servitto
/s/ Michael J. Riordan

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