A People of Michigan v. Jeffrey Martin Six

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 31, 2022
Plaintiff-Appellee,

v No. 338238
Wayne Circuit Court
JEFFREY MARTIN SIX, LC No. 16-001862-01-FH

Defendant-Appellant.

AFTER REMAND

Before: STEPHENS, P.J., and K. F. KELLY and BOONSTRA, JJ.

PER CURIAM.

Defendant appealed as of right his jury convictions of uttering and publishing a false
instrument, MCL 750.249, and receiving or concealing stolen property with a value of more than
$1,000, MCL 750.535(2)(a). The trial court sentenced defendant to two years’ probation which
he has now successfully completed. On appeal, we remanded to the trial court to further develop
the record on the issue of voir dire, retaining jurisdiction. We now affirm.

I. FACTS AND PROCEEDINGS

This Court previously articulated the facts from which defendant’s convictions arose as
follows:

Defendant’s convictions arise from a scheme to fraudulently use the bank
account of an innocent third party, Forrest Health Services (Forrest Health), to
make online payments of driver responsibility fees on the Michigan Department of
Treasury’s website. The online payments were made in substantially greater
amounts than the amounts due. The overpayments were credited to the online
accounts of the driver who was liable for the driver responsibility fee. Four such
payments were made on July 9, 2014, including a payment of $15,000 for
defendant, whose driver responsibility fee was $150, a payment of $50,500 for
Gordon Orsette, and overpayments for two other persons. Orsette and defendant
were involved in a same-sex relationship at the time the overpayments were made.
 The overpayments for Orsette and the two other persons were reversed
before they were credited toward their respective driver responsibility accounts.
No refunds were issued for these three overpayments. However, the $15,000
payment was credited to defendant’s driver responsibility account, for which he
owed a $150 fee. The payment was made from a Forrest Health account without
that payer’s authorization. The Department of Treasury later approved a refund
payment to defendant for $14,850. Defendant cashed the check at a party store. In
September 2014, Forrest Health notified the Department of Treasury that its
account had been hacked. The state refunded the unauthorized $15,000 payment
to Forrest Health and began an investigation of defendant’s refund payment.

The defense theory at trial was that Orsette told defendant that he paid
defendant’s driver responsibility fee out of Orsette’s own account, accidentally
adding two zeros to the amount paid. Defendant testified at trial that he cashed the
check and gave the proceeds to Orsette because he did not know that Orsette’s
online payment was fraudulent. [People v Six, unpublished per curiam opinion of
the Court of Appeals, issued January 21, 2020 (Docket No. 338238), pp 1-2.]

On appeal, defendant argued he was denied a fair trial by the trial court’s refusal to question
prospective jurors during voir dire regarding any potential anti-LGBT bias. Six, unpub op at 2.
We were unable to determine the basis for the trial court disallowing voir dire regarding juror
perception, bias, or experience with the LGBT community, nor the arguments, facts, and law
presented to the judge. Id. at 5. Thus, we remanded to the trial court for “settlement of the record,”
id., instructing the trial court in our accompanying order to “articulate its reasons for denying
defendant voir dire to question the jury for any anti-LGBT bias,” People v Six, unpublished order
of the Court of Appeals, entered January 21, 2020 (Docket No. 338238), and retained jurisdiction.

On remand, a hearing was held at which defendant’s trial counsel, Rudolph Serra, testified.
Serra was concerned about anti-LGBT bias among jurors and, at a pretrial conference in chambers,
he expressed his belief that it was “essential” for the prospective jurors to be questioned about anti-
LGBT bias. According to Serra, this line of questioning would have included asking whether they
knew anyone in the LGBT community or believed that members of that community were more
likely to be dishonest or commit crimes. Serra “vividly recall[ed]” that, at the end of the pretrial
conference and related to whether prospective jurors would be questioned about LGBT issues, the
trial court said, “I find that most people can be pretty fair about that sort of thing, most of the time,
Mr. Serra.” The trial court disallowed the requested voir dire.

After testimony and limited argument, the trial court provided its reasoning of its ruling:

THE COURT: [The ruling] was a matter of staying on point.

Uhm, you know, I – and reeling back a bit, uhm, when I, uhm, revoked the waiver
in this case, it was because I had had some reason to, uh, to take a, a deep dive into
the defendant’s conspiracy theory.

And I don’t know if it was a motion in limine, or, or how it came to my attention,
before trial, but I, I came to understand the defendant’s conspiracy theory, which

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was very, you know, I saw – I said it then, and I’ll say it again, very convoluted and
essentially irrelevant, because the People’s evidence, against the defendant, for
having participated in this fraudulent theft of, of approximately fifteen thousand
dollars worth of State money, was, uhm, apparent.

Now, Gorden Orsetti [sic] may also have participated, in some way.

And maybe he even, insome [sic] way directed the, the fraud, but ultimately, it was
the defendant who engaged in various acts along the way, that were proven, and
established by the People in their case, that created a very strong question of fact
on whether or not he was a direct, or even sole participant in the, uh, in the fraud;
or, at the very least, a, uh, an aider and abettor.

And then, by all accounts, he was the, the person who profited from it as well.

Uhm, the People’s case was pretty strong, and pretty clear, and fairly simple.

And the defendant’s conspiracy was just off point.

Uhm, my, uhm – and then, without that conspiracy theory, uhm, being a part – and
I, and I did order the, that neither the – well, the, People wouldn’t, of course,
embarked on, on trying to disprove the theory in their case in chief.

But I did, pretty much overrule the, the defense’s ability to, try to float that
conspiracy theory.

And then, of course, as the record shows, George Orsetti[sic] uh, in the end, refused
to testify, anyway.

He took the Fifth Amendment, and so that was that.

There really wasn’t even any way that Mr. Serra could have proven, with competent
evidence, the conspiracy theory that he had in mind.

Uhm, you know, and as result of all of that, I really didn’t see that defendant’s
sexual orientation was an issue in the case.

You know, the case could have easily been tried, and actually with, as far as the
People’s proofs were concerned, it was tried, without any reference to the
defendant’s sexual orientation.

Now, if this had been a sex assault case, involving same sex actors; or a domestic
violence case, involving a same sex relationship, or partnership, or marriage; uhm
you know, obviously, that would made, I would have made a very different call,
because, then, the orientation of the parties, or one party or the other, is, is a sort of
central fact in the case.

But that was not the case here.

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 And, so, my, I guess to go back to your question, directly, to make a, in an effort to
make a long story, short, uhm, my effort wasn’t really to save time.

Because if I thought there was issues that needed to be flushed out, in the trial, and
that the jury needed to hear, in order to consider, ultimately, whether the defendant
committed the crime he was charged with, uh, you know, I would have presided
over the trial in a month, if I thought that’s what had to happen.

***

My, my effort, or my motivation was the keep the case focused, not confuse the
jury with what I regarded as extraneous information, to keep their attention focused
on the issue of whether or not the defendant committed the crimes he was charged
with, and not go off on social tangents, that, uhm, you may think are important, but
I didn’t think were important to this case. (Emphasis added.)

Subsequently, the trial court further reiterated that sexual orientation was “not an issue in
this case,” was not an issue “in this trial” and that the case “could have been tried without the jury
ever knowing that the defendant was gay.” (Emphasis added.)

II. JURY VOIR DIRE

Defendant argues that he was denied a fair trial by the trial court’s refusal to question
prospective jurors during voir dire regarding any potential anti-LGBT bias. “The trial court has
discretion in both the scope and the conduct of voir dire.” People v Washington, 468 Mich 667,
674; 664 NW2d 203 (2003) (quotation marks and citation omitted). “An abuse of discretion occurs
when the court chooses an outcome that falls outside the range of reasonable and principled
outcomes.” People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008).

Voir dire of prospective jurors is governed by MCR 6.412(C), which provides:

(1) Scope and Purpose. The scope of voir dire examination of prospective
jurors is within the discretion of the court. It should be conducted for the purposes
of discovering grounds for challenges for cause and of gaining knowledge to
facilitate an intelligent exercise of peremptory challenges. The court should
confine the examination to these purposes and prevent abuse of the examination
process.

(2) Conduct of the Examination. The court may conduct the examination
of prospective jurors or permit the lawyers to do so. If the court conducts the
examination, it may permit the lawyers to supplement the examination by direct
questioning or by submitting questions for the court to ask. On its own initiative
or on the motion of a party, the court may provide for a prospective juror or jurors
to be questioned out of the presence of the other jurors.

Our Supreme Court summarized the principles underlying voir dire in People v Tyburski,
445 Mich 606, 618; 518 NW2d 441 (1994) (lead opinion by MALLET, J.), stating:

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 A defendant who chooses a jury trial has an absolute right to a fair and
impartial jury. Duncan v Louisiana, 391 US 145; 88 S Ct 1444; 20 L Ed 2d 491
(1968); People v Miller, 411 Mich 321, 326; 307 NW2d 335 (1981). The purpose
of voir dire is to elicit enough information for development of a rational basis for
excluding those who are not impartial from the jury. People v Brown, 46 Mich App
592, 594; 208 NW2d 590 (1973); People v Harvey, 167 Mich App 734, 423 NW2d
335 (1988). In voir dire, meaning “to speak the truth,” potential jurors are
questioned in an effort to uncover any bias they may have that could prevent them
from fairly deciding the case. It is the only mechanism, and the only safeguard a
defendant has, for ensuring the right to an impartial jury. The propriety of the voir
dire in this case turns on whether potential jurors who have been exposed to
pervasive and sensationalized media coverage can “speak the truth” about their own
bias, or whether a trial court must elicit more than mere self-assessment in order to
safeguard a defendant’s right to an impartial jury.

Our Supreme Court “has long recognized the importance of a voir dire that allows the court and
the parties to discover hidden bias that would render a potential juror incompetent.” Tyburski, 445
Mich at 619. “[A] trial court may not restrict voir dire in a manner that prevents the development
of a factual basis for the exercise of peremptory challenges.” People v Taylor, 195 Mich App 57,
59; 489 NW2d 99 (1992). On appeal, “this Court must determine whether the trial court conducted
“a sufficiently probing voir dire in order to uncover potential juror bias.” Tyburski, 445 Mich at
609.

In Tyburski, upon which defendant relies, the Supreme Court held that the trial court had a
“duty to exercise caution in the manner it conducted voir dire” in order to reveal a potential juror’s
bias based on “the high likelihood of media-induced bias.” Id. at 626. In People v Harvey, 167
Mich App 734, 743; 423 NW2d 335 (1988), however, this Court held that the trial court did not
err by failing to excuse for cause two jurors who had been exposed to pretrial publicity about the
case because both jurors stated in voir dire that they could base their decisions on the evidence
presented at trial. These cases are instructive with respect to general principles concerning voir
dire when jurors have been exposed to pretrial publicity about a case, creating a potential for juror
bias. The present case, however, does not involve pretrial publicity. Instead, cases involving
potential bias arising from a defendant’s demographic identity offer more guidance. We have
found no Michigan case addressing jury voir dire and possible LGBT bias, but decisions of federal
courts and courts of our sister states can offer guidance. See People v Bragg, 296 Mich App 433,
454-455; 824 NW2d 170 (2012). While the Supreme Court cases all involve racial issues,
decisions of other courts rely on those same standards in reviewing voir dire for issues regarding
sexual orientation.

In Ham v South Carolina, 409 US 524, 527; 93 S Ct 848; 35 L Ed 2d 46 (1973), the United
States Supreme Court held that “the Fourteenth Amendment required the judge in [that] case to
interrogate the jurors upon the subject of racial prejudice.” The defendant was “well known locally
for his work in such civil rights activities as the Southern Christian Leadership Conference and the
Bi-racial Committee of the City of Florence.” Id. at 525. The defense theory was that the police
framed the defendant for the drug charge to retaliate against him for his civil rights activities. Id.
The Court held that because South Carolina law “permits challenges for cause, and authorizes the
trial judge to conduct voir dire examination of potential jurors,” the “essential fairness required by

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the Due Process Clause of the Fourteenth Amendment requires that under the facts shown by this
record the petitioner be permitted to have the jurors interrogated on the issue of racial bias.” Id. at
527.

In Ristaino v Ross, 424 US 589; 96 S Ct 1017; 47 L Ed 2d 258 (1976), the trial court denied
the defendants’ request for voir dire regarding racial attitudes. The trial court expressed hope that
jurors would “take their oaths seriously and understand the spirit of their oath,” and expressed
confidence that judges “would take the time to impress upon them, before, during, and after the
trial, and before their verdict, that their oath means just what it says, that they are to decide the
case on the evidence, with no extraneous considerations.” Id. at 591. The Supreme Court,
discussing its decision in Ham, observed that in that case “[r]acial issues . . . were inextricably
bound up with the conduct of the trial.” The Court noted that Ham was a prominent civil rights
activist, and that his defense “was that he had been framed because of his civil rights activities.”
Ristaino, 424 US at 596-597. The Court stated that in Ristaino, by contrast, “The mere fact that
the victim of the crimes alleged was a white man and the defendants were Negroes was less likely
to distort the trial than were the special factors involved in Ham.” Id. at 597. The Court concluded
that the trial judge “acted within the Constitution in determining that the demands of due process
could be satisfied by his more generalized but thorough inquiry into the impartiality of the
veniremen.” Id. at 598.

In Rosales-Lopez v United States, 451 US 182, 190; 101 S Ct 1629; 68 L Ed 2d 22 (1981),
the Supreme Court elaborated on the distinction between Ham and Ristaino, stating:

There is no constitutional presumption of juror bias for or against members of any
particular racial or ethnic groups. As Ristaino demonstrates, there is no per se
constitutional rule in such circumstances requiring inquiry as to racial prejudice.
[Ristaino, 424 US at 596 n 8.] Only when there are more substantial indications of
the likelihood of racial or ethnic prejudice affecting the jurors in a particular case
does the trial court’s denial of a defendant’s request to examine the jurors’ ability
to deal impartially with this subject amount to an unconstitutional abuse of
discretion.

In Berthiaume v Smith, 875 F3d 1354 (CA 11, 2017), the plaintiff attended a parade with
his same-sex partner and his former same-sex partner, Jimenez. The plaintiff and Jimenez became
involved in an altercation, which the defendant police officer allegedly perceived as the plaintiff
chasing and assaulting Jimenez. The defendant pushed the plaintiff to stop him from pursuing
Jimenez. Id. at 1356-1357. Although Jimenez declined to press charges against the plaintiff, the
defendant arrested the plaintiff and charged him with domestic battery. Id. at 1357. The plaintiff
brought a civil action against the officer and the municipality, asserting claims of excessive force,
false arrest, malicious prosecution, and related claims. Id. at 1356-1357. The plaintiff asked the
trial court to question prospective jurors regarding their potential bias against gay and homosexual
persons. The trial court denied this request. The jury subsequently returned a verdict in the
defendant’s favor. Id. at 1357-1358.

On appeal, the Eleventh Circuit Court of Appeals held that it was “obvious” that the case
involved “an alleged domestic battery between former partners of the same sex, and that the sexual
orientation of [the plaintiff] and his witnesses would be central facts at trial and were ‘inextricably

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bound up’ with the issues to be resolved at trial.” Id. at 1358 (emphasis added). The court
concluded that “the relationship between [the plaintiff] and Jimenez, and the nature of the alleged
domestic dispute between them as former partners, was of critical importance.” Id. at 1359. The
court further concluded that questioning on sexual-orientation bias was necessary because the
plaintiff raised a Batson1 challenge to the defendants’ use of peremptory challenges to remove two
potential jurors whom he believed were gay. Id. The court held that the trial court’s general
inquiries regarding the jurors’ ability to be impartial and unprejudiced were too “broadly framed
and not calculated to reveal latent prejudice.” Id. at 1359. The court noted that at the time of voir
dire, the jurors did not know that the case involved an alleged domestic dispute between former
same-sex partners and thus had no reason to volunteer potential prejudices. Id. The jury was,
however, questioned about bias toward law enforcement. Id. at 1360. The court found that the
“long history of cultural disapprobation and prior legal condemnation of same-sex relationships”
created a risk that bias based on sexual orientation influenced the jury. Id. at 1359. The court
concluded that under these circumstances, the trial court abused its discretion by failing to question
prospective jurors about sexual-orientation bias. Id. at 1360. The court stated, however, that the
refusal to ask such questions would not constitute an abuse of discretion in every case. The need
for questions about sexual-orientation bias “will depend on the subject matter and issues in the
case and what notice the district court has that issues of sexual orientation will potentially be a
central part of the evidence at trial.” Id.

The essential principle we glean from these cases is that a trial court is required to allow
voir dire regarding juror bias if the defendant’s identity with a particular demographic group is
“inextricably bound” with questions of fact that the jury will have to decide. Where the
defendant’s demographic identity is not inextricably bound with questions of fact which the jury
will be called upon to decide, generalized voir dire regarding the jurors’ impartiality and
commitment to deciding the case based on the evidence may suffice to safeguard the defendant’s
right to a fair and impartial jury. Each case must be evaluated on its own facts and circumstances.

Here, defendant argues that his sexual orientation was inextricably bound with the facts of
this case because his defense was that his same-sex partner, Orsette, used his knowledge of
defendant’s financial dealings to fraudulently induce the state to pay defendant the $14,850 refund.
The record, however, does not demonstrate that defendant made such an argument below. The
record on this issue is that defendant “requested to do voir dire on LGBT issues,” but failed to
demonstrate that sexual orientation was “inextricably bound” to the facts of this case. At most,
the nature of the relationship between defendant and Orsette was relevant to the defense theory
that defendant was not suspicious because Orsette often paid the couple’s bills and because Orsette
had ample funds in his business account. Nevertheless, the partners’ motives for making those

1
In Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986), the United States
Supreme Court held that the use of peremptory challenges to exclude members of a jury venire
based on race violates the Equal Protection Clause. The present case does not present the issue of
whether Batson applies to the use of peremptory challenges based on a juror’s actual or perceived
sexual orientation, and we express no opinion on that question; at least one federal court of appeals
has held that Batson does apply under such circumstances. See SmithKline Beecham Corp v Abbott
Laboratories, 740 F3d 471 (9 CA, 2014).

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arrangements were tangential to defendant’s explanation for why he relied on Orsette’s
explanations.

In Ham, the defendant’s race and his participation in civil rights causes were the defense—
“[h]is basic defense at the trial was that law enforcement officers were ‘out to get him’ because of
his civil rights activities, and that he had been framed on the drug charge.” Ham, 409 US at 525.
Thus, race and civil rights work were “inextricably bound up with the conduct of the trial.”
Ristaino, 424 US at 597. In Berthiaume, 875 F3d 1354, the plaintiff’s claims of wrongful arrest
and malicious prosecution involved factual questions of the plaintiff’s and Jimenez’s conduct
toward each other, and the defendant’s perception of and reaction to their conduct; thus, juror bias
toward LGBT persons had the potential to significantly influence how the jurors evaluated the
parties’ conduct.

Here, by contrast, defendant was not associated with a history of LGBT causes, and jurors
were not asked to make subjective evaluations of what happened between defendant and his past
partners. They were asked, instead, to judge the credibility of defendant’s exculpatory theory,
taking into consideration that he had made false accusations against four previous partners.
Moreover, defendant’s conduct in his other relationships was relevant only as it bore on his
credibility. The central factual issue relevant to defendant’s guilt or innocence was whether
defendant cashed a refund check for the refunded overpayment, while knowing that the repayment
had been induced through fraud. Defendant’s sexual orientation and behavior with his partners
had little relevance to this issue.

On remand, the trial court clearly enunciated the reasons for its ruling. It detailed the
crimes charged, referenced the evidence, and explained why the proposed voir dire was not
relevant to the issues presented. The trial court did not abuse its discretion when it denied the
request.

III. OTHER-ACTS EVIDENCE

Defendant argues that the trial court erred by excluding evidence of Orsette’s involvement
with other fraudulent activity and that the exclusion of this evidence violated defendant’s
constitutional right to present a defense. “The decision whether such evidence is admissible is
within the trial court’s discretion and will only be reversed where there has been a clear abuse of
discretion.” People v Crawford, 458 Mich 376, 383; 582 NW2d 785 (1988). “[W]hether a rule or
statute precludes admission of evidence is a preliminary question of law that this Court reviews de
novo.” People v Denson, 500 Mich 385, 396; 902 NW2d 306 (2017). “This Court reviews de
novo whether a defendant was denied the constitutional right to present a defense.” People v Kurr,
253 Mich App 317, 327; 654 NW2d 651 (2002).

MRE 404(b)(1) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or
absence of mistake or accident when the same is material, whether such other

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 crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.

“The general rule under MRE 404(b) is that evidence of other crimes, wrongs, or acts is
inadmissible to prove a propensity to commit such acts.” Denson, 500 Mich at 398. MRE
404(b)(1) “applies to the admissibility of evidence of other acts of any person, such as a defendant,
a victim, or a witness.” People v Catanzarite, 211 Mich App 573, 579; 536 NW2d 570 (1995).
“At its essence, MRE 404(b) is a rule of inclusion, allowing relevant other acts evidence as long
as it is not being admitted solely to demonstrate criminal propensity.” People v Martzke, 251 Mich
App 282, 289; 651 NW2d 490 (2002). Our Supreme Court has established the following test for
admitting other acts evidence:

First, the [proponent] must offer the other acts evidence under something other than
a character to conduct or propensity theory. MRE 404(b). Second, the evidence
must be relevant under MRE 402, as enforced through MRE 104(b), to an issue of
fact of consequence at trial. Third, under MRE 403, a “ ‘determination must be
made whether the danger of undue prejudice [substantially] outweighs the
probative value of the evidence in view of the availability of other means of proof
and other facts appropriate for making decision of this kind under Rule 403.’ ”
People v VanderVliet, 444 Mich 52, 75; 508 NW2d 114 (1993)], quoting advisory
committee notes to FRE 404(b). Finally, the trial court, upon request, may provide
a limiting instruction under MRE 105. [People v Sabin (After Remand), 463 Mich
43, 55-56; 614 NW2d 888 (2000).]

The federal and state constitutions guarantee a defendant’s right to present a defense. US
Const, Am VI; Const 1963, art 1, § 20; People v Yost, 278 Mich App 341, 379; 749 NW2d 753
(2008). But “[t]he right to present a defense extends only to relevant evidence.” People v Danto,
294 Mich App 596, 604; 822 NW2d 600 (2011). “ ‘Relevant evidence’ means evidence having
any tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” MRE 401.
“Relevant evidence is admissible; irrelevant evidence is not.” MRE 402. And “[a]lthough
relevant, evidence may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” MRE 403.

Preliminarily, defendant does not specify what evidence the trial court erroneously
excluded. “[A]ppellants may not merely announce their position and leave it to this Court to
discover and rationalize the basis for their claims; nor may they give issues cursory treatment with
little or no citation of supporting authority.” VanderWerp v Plainfield Charter Twp, 278 Mich
App 624, 633; 752 NW2d 479 (2008). Defendant made several references in his testimony to
Orsette’s allegedly underhanded dealings. He referenced a DTE investigation that allegedly
motivated him to separate himself from Orsette. Defendant elicited testimony from prosecution
witnesses that they did not know who initiated the online payment that resulted in the allegedly
fraudulent refund check. Thus, the jury fully was made aware that defendant blamed Orsette for
procuring the refund check.

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 In his response to the prosecutor’s motion in limine, defendant referenced a fraudulent
overpayment by Orsette to DTE. Defendant does not fully explain why this evidence was
necessary to his defense. Uttering and publishing a false instrument requires proof that the
defendant published the false instrument “knowing it to be false, altered, forged, or counterfeit
with intent to injure or defraud.” MCL 750.249(1). Receiving or concealing stolen property
requires proof that the defendant bought, received, or possessed “stolen, embezzled, or converted
money, goods, or property knowing, or having reason to know or reason to believe,” that the
property was stolen, embezzled, or converted. MCL 750.535(1). Although defendant suggests
that Orsette’s participation in other fraudulent activity was relevant to whether Orsette was
responsible for procuring the fraudulent refund check in this case, Orsette’s alleged participation
in or initiation of the fraudulent transaction was not a defense to defendant’s alleged violation of
these statutes by cashing the check, knowing or having reason to know that the refund payment
was procured through the fraudulent overpayment. “Every person concerned in the commission
of an offense, whether he directly commits the act constituting the offense or procures, counsels,
aids, or abets in its commission . . . shall be punished as if he had directly committed such offense.”
MCL 769.39. Accordingly, defendant has not established that the trial court abused its discretion
by excluding the evidence as irrelevant, nor has he shown that exclusion of the evidence denied
him an opportunity to present a defense.

IV. DEFENDANT’S OTHER RELATIONSHIPS

Defendant argues that the trial court erred by allowing the prosecutor to cross-examine him
regarding his dealings with four of his former partners. Defendant contends that the questioning
violated MRE 404(b)(1) because it served no purpose other than to show that he was “a
promiscuous gay man with multiple lover[s] and live-in partners.” Again, we review the trial
court’s decision for an abuse of discretion. Crawford, 458 Mich at 383.

At trial, defendant claimed that he was in an exclusive, “marital-type” relationship with
Orsette for a five-year period, starting in 2010. It is the nature of this relationship which defendant
claimed allowed Orsette to take control over certain aspects of defendant’s life, like paying
defendant’s bills. The prosecutor’s questions, and resulting answers, were designed to rebut
defendant’s claim of being in a marital-type relationship with Orsette, which in turn would
undercut his claim that Orsette handled certain familial matters, including paying defendant’s
driver responsibility fees. The questions thus were offered for a permissible purpose, and were
not merely offered to show propensity. See Martzke, 251 Mich App at 289 (stating that MRE
404(b) evidence is admissible as long as not used to demonstrate propensity). Accordingly, the
trial court did not abuse its discretion when it allowed the prosecutor to continue along this line of
questioning.

Affirmed.

/s/ Kirsten Frank Kelly
/s/ Mark T. Boonstra

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