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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 17, 2021
Plaintiff-Appellee,
v No. 350656
St. Clair Circuit Court
WILLIAM MICHAEL SMITH, LC No. 18-002937-FH
Defendant-Appellant.
Before: GLEICHER, P.J., and CAVANAGH and LETICA, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of conspiracy to possess more than
50 grams but less than 450 grams of cocaine, MCL 750.157a and MCL 333.7403(2)(a)(iii), and
possession of more than 50 grams but less than 450 grams of cocaine, MCL 333.7403(2)(a)(iii).
Defendant was sentenced, as a fourth habitual offender, MCL 769.12, to concurrent terms of 15 to
47 years’ imprisonment for each conviction. On appeal, defendant argues that the prosecutor and
police officers plainly erred by referring to defendant by his street name of “Klepto” throughout
the trial, and that the prosecution never noticed its intent to introduce prior bad-acts evidence of
defendant’s cocaine use at trial. Alternatively, defendant argues that defense counsel was
ineffective for failing to object to both errors at trial. We affirm.
I. FACTUAL BACKGROUND
This case arises from a conspiracy between defendant and Brittany Brumfield to possess
cocaine. In July 2018, defendant and Brumfield drove to a house in Detroit where defendant
bought cocaine. Brumfield accompanied defendant a second and possibly third time to Detroit to
buy cocaine. Thereafter, Brumfield made the trip to Detroit by herself; defendant would instruct
Brumfield to make the trip by either showing up at her house or texting her. After Brumfield
bought the cocaine using money given to her by defendant, she would take the cocaine directly to
defendant’s house. In exchange for making the trip, defendant would give Brumfield gas money
and free cocaine. At trial, Brumfield testified that she made between six to eight trips to Detroit
to buy cocaine for defendant.
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In September 2018, members of the St. Clair County Drug Task Force (DTF) were
surveilling Brumfield’s and defendant’s houses in Port Huron. Deputy Nathan Zuzga observed
defendant and two other men arrive at Brumfield’s house at the same time that Brumfield arrived.
Brumfield testified that she arrived at her house and saw defendant, who had a key to the house,
entering it with the two men. Brumfield followed the three inside to her bedroom. Brumfield saw
an Arizona iced tea can on a table, but she did not remember whether the can was there when she
left her house that morning. Defendant gave Brumfield some cocaine, which she inhaled.
Approximately 10 minutes after the four went into the house, Deputy Zuzga saw defendant and
the two men leave.
The DTF obtained and executed a search warrant for Brumfield’s house. Brumfield was
detained and approximately two grams of cocaine and a straw were found in her bra. Inside
Brumfield’s bedroom, Deputy Zuzga found an Arizona iced tea “hide-a-can.”1 Deputy Zuzga
opened the hide-a-can and found five or six bags containing 108 grams of a cocaine mixture.
Brumfield testified that she did not put the Arizona iced tea or Red Bull cans in the closet. But,
she had seen defendant with the Arizona iced tea hide-a-can on previous occasions, and she
believed that there was cocaine in it on those occasions.
At trial, defense counsel asked the trial court to address his motion in limine to exclude the
testimony of Nicole York, defendant’s parole officer. Counsel asserted that York’s testimony
concerning defendant’s tether and an interview in jail would be unduly prejudicial. The trial court
determined that York’s testimony was relevant and the probative value outweighed the prejudicial
effect. Regardless, to minimize any prejudice, the trial court cautioned the parties to “couch[] the
questions in terms that do not elicit the determination as to the nature of their relationship, the
location where the discussions took place, or the circumstances that gave rise to the need for that
discussion.”
York testified that she was an employee for the state of Michigan and had known defendant
since April 2018. She knew that defendant had visited a house in Detroit twice in May 2018, six
times in June 2018, eight times in July 2018, and three times in August 2018. York spoke with
defendant about his visits to the house and “specifically asked him in regards to dealing drugs and
whether or not he was participating in that.” Defendant responded that he was a middleman for
his friends because he was “able to get a good amount of cocaine at a better price,” and he needed
the money.
The jury convicted defendant as charged. This appeal follows.
1
A hide-a-can “looks like a normal can and if you screw the very top of it it’s got a kind
of . . . screw thing into it with a h[o]llow void.”
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II. PROSECUTORIAL MISCONDUCT2
Defendant argues that the prosecution improperly referenced defendant’s street name of
Klepto multiple times during trial, which deprived defendant of a fair trial. Alternatively,
defendant argues that defense counsel was ineffective for failing to object. We disagree.
“Review of alleged prosecutorial misconduct is precluded unless the defendant timely and
specifically objects, except when an objection could not have cured the error, or a failure to review
the issue would result in a miscarriage of justice.” People v Unger, 278 Mich App 210, 234-235;
749 NW2d 272 (2008) (quotation marks and citation omitted). Defendant concedes that counsel
did not object and that this issue is unpreserved. Accordingly, this Court examines whether the
alleged error amounted to plain error that affected the defendant’s substantial rights. See People
v Gibbs, 299 Mich App 473, 482; 830 NW2d 821 (2013). “Reversal 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.” People v Carines, 460 Mich 750, 753-764; 597 NW2d 130 (1999)
(quotation marks and citation omitted; alteration in original).
To preserve a claim of ineffective assistance of counsel, defendant must move for a new
trial or a Ginther3 hearing in the trial court. People v Payne, 285 Mich App 181, 188; 774 NW2d
714 (2009). Defendant did not move for a new trial or a Ginther hearing, so this issue is
unpreserved and “our review is limited to mistakes apparent on the record.” Id.
“A prosecutor has committed misconduct if the prosecutor abandoned his or her
responsibility to seek justice and, in doing so, denied the defendant a fair and impartial trial.”
People v Lane, 308 Mich App 38, 62; 862 NW2d 446 (2014). “A prosecutor can deny a defendant
his or her right to a fair trial by making improper remarks that so infect[] the trial with unfairness
as to make the resulting conviction a denial of due process.” Id. (quotation marks and citation
omitted; alteration in original). A prosecutor may not advance an argument that “injects issues
broader than the guilt or innocence of the accused into the trial.” People v McGhee, 268 Mich
App 600, 636; 709 NW2d 595 (2005). Claims of prosecutorial misconduct are reviewed on a case-
by-case basis, and the reviewing court must examine the record and evaluate the prosecutor’s
remarks in context. People v Mann, 288 Mich App 114, 119; 792 NW2d 53 (2010).
We agree with defendant’s general contention that his nickname of Klepto was ultimately
irrelevant to either of the charges. Although identity is an element of every crime, People v Yost,
278 Mich App 341, 356; 749 NW2d 753 (2008), defendant’s nickname was irrelevant to his
involvement in the drug charges—the police officers were all able to identify defendant by his
legal name and Brumfield testified that she never called defendant by his nickname. However,
2
This Court has explained that a fairer label for most claims of prosecutorial misconduct would
be “prosecutorial error,” while only the most extreme cases rise to the level of “prosecutorial
misconduct.” People v Cooper, 309 Mich App 74, 87-88; 867 NW2d 452 (2015). To the extent
we use the phrase “prosecutorial misconduct,” it is as a term of art.
3
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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merely eliciting testimony that is not directly relevant did not, by itself, deny defendant a fair and
impartial trial.
Defendant asserts that Boyle v Million, 201 F3d 711, 717 (CA 6, 2000) is instructive in this
case because the United States Court of Appeals for the Sixth Circuit stated that name-calling is
so deplorable that it defines prosecutorial misconduct. “Decisions of lower federal courts are not
binding on this Court but may be considered for their persuasive value.” Slis v Michigan, 332
Mich App 312, 361 n 25; 956 NW2d 569 (2020). In Boyle, the respondent appealed the district
court’s granting the petitioner a conditional writ of habeas corpus on the basis of prosecutorial
misconduct. Id. at 712-713. During the petitioner’s trial, the prosecutor engaged in a “startling
display of unprofessional and unethical conduct . . . .” Id. at 714. The Boyle Court summarized
the prosecutor’s actions:
Badgering and interrupting a witness, name-calling, predicting that the defendant
will lie on the stand, and stating before the jury that the defendant is in need of
psychiatric help are tactics so deplorable as to define the term ‘prosecutorial
misconduct.’ Furthermore, closing arguments that appeal to class prejudices,
encourage juror identification with crime victims, or vouch for the defendant’s guilt
would each be deemed beyond ethical bounds. To combine all three prejudicial
ploys in one argument only compounds the error. [Id. at 717.]
Defendant asserts that Boyle stated the prosecutor’s “name-calling” defines prosecutorial
misconduct, but such a reading is overbroad. Instead, Boyle stated that name-calling, in addition
to many other improprieties, established that the prosecutor engaged in misconduct. Id. at 717-
718. Apart from the allegations of name-calling, defendant does not identify any other instances
of misconduct. Because there are not numerous allegations of misconduct, Boyle is simply not
applicable to this case.
Moreover, defendant’s categorization of eliciting testimony concerning defendant’s street
name of Klepto as “name-calling” overstates what actually occurred. Reviewing the 13 instances
that defendant identified where Klepto was referenced, it is clear that the references were strictly
limited to identifying defendant. In almost all of the instances, the prosecutor asked a witness
whether the witness was familiar with a person named William Smith or Klepto. Although Klepto
does have a negative connotation, the witnesses were not calling defendant a kleptomaniac; they
were merely identifying defendant by one of the names he was known by.
Defendant also argues that the prosecutor’s references to him as Klepto prejudiced him
because the jury was led to believe that he had the reputation of being a thief and untrustworthy.
However, whether defendant was a thief or had a reputation as a thief was irrelevant to the drug-
related charges. If this case involved a theft crime, then such references may have been prejudicial.
But in the absence of any allegations of theft, connotations of thievery that the jury might have
inferred did not prejudice defendant in relation to the drug charges.
Defendant alternatively argues that defense counsel was ineffective for failing to object to
the testimony concerning defendant’s nickname. To establish a claim of ineffective assistance of
counsel, the defendant must first show that counsel’s performance was deficient, and second, that
counsel’s deficient performance prejudiced defendant. Payne, 285 Mich App at 188. “To
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demonstrate prejudice, the defendant must show the existence of a reasonable probability that, but
for counsel’s error, the result of the proceeding would have been different.” Id. at 188-189. As
discussed, the prosecutor did not engage in misconduct by commenting on defendant’s nickname
or eliciting testimony that identified defendant by his nickname. Failing to make a meritless
objection does not constitute ineffective assistance of counsel. People v Ericksen, 288 Mich App
192, 201; 793 NW2d 120 (2010). And, even if defendant could demonstrate that counsel
performed deficiently by failing to object, he has not shown that he was prejudiced in light of the
evidence presented. Thus, defendant’s ineffective-assistance-of-counsel argument fails.
III. BAD-ACTS EVIDENCE
Defendant argues that the admission of the bad-acts evidence was plain error because the
prosecution did not provide notice of its intent to introduce such evidence and the evidence was
not admitted for a permissible purpose. We agree that the prosecution failed to provide proper
notice, but the error was harmless. Further, we largely disagree that the evidence defendant
highlights was bad-acts evidence.
“In order to preserve the issue of the improper admission of evidence for appeal, a party
generally must object at the time of admission.” People v Knox, 469 Mich 502, 508; 674 NW2d
366 (2004). Defendant acknowledges that counsel did not object to the prior-acts evidence and
that this issue is unpreserved. Accordingly, defendant “must demonstrate plain error affecting his
substantial rights, meaning that he was actually innocent or that the error seriously affected the
fairness, integrity, or public reputation of the judicial proceedings independent of his innocence.”
Knox, 469 Mich at 508.
Under MRE 404(b), “[u]se of other acts as evidence of character is generally excluded to
avoid the danger of conviction based on a defendant’s history of misconduct.” People v Johnigan,
265 Mich App 463, 465; 696 NW2d 724 (2005). MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or
absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
“If the proponent’s only theory of relevance is that the other act shows defendant’s inclination to
wrongdoing in general to prove that the defendant committed the conduct in question, the evidence
is not admissible.” People v VanderVliet, 444 Mich 52, 63; 508 NW2d 114 (1993). Conversely,
“if the proffered other acts evidence is logically relevant, and does not involve the intermediate
inference of character, Rule 404(b) is not implicated.” Id. at 64. “If the evidence is relevant to a
fact in issue (facta probantia), there may be no inference to conduct. The question is not whether
the evidence falls within an exception to a supposed rule of exclusion, but rather whether the
evidence [is] in any way relevant to a fact in issue other than by showing mere propensity.” Id.
(quotation marks and citation omitted; alteration in original). Thus,
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Evidence of other crimes, wrongs, or acts is admissible under MRE
404(b)(1) if the evidence is (1) offered for a proper purpose and not to prove the
defendant’s character or propensity to commit the crime, (2) relevant to an issue or
fact of consequence at trial, and (3) sufficiently probative to outweigh the danger
of unfair prejudice, MRE 403. [People v Williams, 240 Mich App 316, 322-323;
614 NW2d 647 (2000) (quotation marks and citations omitted).]
In this case, defendant identifies two witnesses whose testimony allegedly involved
improper bad-acts evidence. First, Brumfield testified that defendant provided her with cocaine
and asked her to go to Detroit to buy the cocaine. Second, York testified that defendant had told
her that he was a middleman in drug purchases. We address each in turn.
Defendant asserts that Brumfield’s testimony involving defendant asking her to go to
Detroit to buy cocaine and providing her with cocaine on several occasions constituted bad-acts
evidence. The felony information charged defendant with participating in a conspiracy to possess
cocaine from May 2018 through September 18, 2018. “Any person who conspires together with
1 or more persons to commit an offense . . . is guilty of the crime of conspiracy . . . .” See also
People v Mass, 464 Mich 615, 632; 628 NW2d 540 (2001) (“The gist of a conspiracy is the
unlawful agreement.”). And “[w]hat the conspirators actually did in furtherance of the conspiracy
is evidence of what they had agreed to do.” People v Hunter, 466 Mich 1, 9; 643 NW2d 218
(2002).
Brumfield testified that defendant asked her to go to Detroit to buy cocaine with him in
July 2018. Brumfield further testified that she accompanied defendant on two or three more trips,
and that she made between six to eight trips by herself at defendant’s behest. This testimony was
not bad-acts evidence. Instead, it was offered for the purpose of showing that there was an
unlawful agreement between defendant and Brumfield to possess cocaine. Id.; VanderVliet, 444
Mich at 64. Because Brumfield’s testimony that defendant asked her to go to Detroit to buy
cocaine was evidence concerning a fact at issue—whether defendant entered into an agreement to
buy cocaine—and not whether defendant had the propensity or character to enter into agreements
to buy cocaine, MRE 404(b) was not implicated. See id. Accordingly, the admission of this
testimony was not plain error.
Defendant also asserts that Brumfield’s testimony that he provided her with cocaine on
several occasions was improper bad-acts evidence. Brumfield testified to multiple instances where
defendant would provide her with cocaine, and defendant does not specifically identify which
instance constituted a bad act for purposes of MRE 404(b). For example, Brumfield testified that
she started buying cocaine from defendant. Then Brumfield testified that when she began making
the trips to Detroit alone, defendant would provide her with gas money and free cocaine.
Additionally, Brumfield testified that defendant gave her cocaine on the day of the DTF raid.
Concerning Brumfield’s testimony that defendant would provide her with free cocaine for
making the trips to Detroit, the prosecution used this evidence to argue that defendant was enticing
Brumfield to participate in the conspiracy. Defendant’s payment of cocaine to Brumfield was not
a bad act under MRE 404(b) because the payment was evidence of the conspiracy. Hunter, 466
Mich at 9. Defendant and Brumfield agreed that she would drive to Detroit and buy the cocaine
with money that defendant had given her. In exchange, defendant would give Brumfield some of
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the cocaine. Because Brumfield’s testimony that she was paid in cocaine for driving to Detroit to
buy the cocaine was evidence of the conspiracy to possess cocaine and did not involve an inference
of defendant’s character, MRE 404(b) was not implicated. See VanderVliet, 444 Mich at 64. Thus,
the admission of the testimony was not plain error.
Similarly, Brumfield’s testimony that defendant gave her cocaine on the day of the raid
was directly relevant to the issue of possession of cocaine. Brumfield testified that she knew that
defendant had cocaine in the Arizona iced tea hide-a-can, and she believed that the cocaine
defendant gave her came from the hide-a-can. This testimony was used to establish that defendant
possessed the cocaine that was found inside the can. Because the testimony was elicited as
evidence of defendant’s possession of cocaine and did not involve an inference about defendant’s
character, MRE 404(b) was not implicated, see VanderVliet, 444 Mich at 64, and the admission of
the testimony was not plain error.
However, Brumfield’s testimony that she bought cocaine from defendant before the
conspiracy came into being was bad-acts evidence with regard to MRE 404(b). This testimony
concerned events that occurred before defendant and Brumfield entered into the agreement that
Brumfield would drive to Detroit to buy cocaine. Brumfield’s buying of cocaine from defendant
also predated defendant’s possession of cocaine in the Arizona iced tea hide-a-can. Therefore, the
testimony that Brumfield bought cocaine from defendant was not substantive evidence involving
either of the charges, and thus, implicated MRE 404(b).
This testimony is inadmissible bad-acts evidence because it was not offered for a proper
purpose, such as showing defendant’s preparation, scheme, or plan. MRE 404(b)(1). Instead, the
only purpose of the testimony that we can discern is that it was most likely offered for the purpose
of showing the drug-related history between defendant and Brumfield, which involves an inference
of defendant’s conduct and character as a drug-dealer. See VanderVliet, 444 Mich at 63. The
minimal relevance of establishing the history between defendant and Brumfield was outweighed
by the prejudice that the jury may view the evidence as showing that defendant had the propensity
to possess cocaine. See People v Crawford, 458 Mich 376, 398; 582 NW2d 785 (1998) (“Evidence
is unfairly prejudicial when there exists a danger that marginally probative evidence will be given
undue or preemptive weight by the jury.”). Therefore, Brumfield’s testimony that she had bought
cocaine from defendant was inadmissible bad-acts evidence.
However, reversal is only warranted when it “affirmatively appear[s] that it is more
probable than not that the error was outcome determinative.” People v Knapp, 244 Mich App 361,
378; 624 NW2d 227 (2001) (quotation marks and citation omitted). The admission of Brumfield’s
testimony that she had purchased cocaine from defendant was not outcome determinative. There
was substantial evidence that defendant and Brumfield conspired to possess cocaine by driving to
Detroit to buy the cocaine and that defendant possessed the cocaine that was found in the Arizona
iced tea hide-a-can. Absent Brumfield’s testimony that she bought cocaine from defendant before
the events that led to the conspiracy and possession charges, we cannot conclude that the outcome
of the case would have been different. Id. at 381. Accordingly, the error in the admission of the
evidence was harmless, and reversal is unnecessary.
Defendant next argues that York’s testimony that defendant admitted he was a middleman
for his friends’ drug dealings was also inadmissible bad-acts evidence. Generally, a defendant’s
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statement is not subject to MRE 404(b) because it “is just that—a statement, not a prior act.”
People v Goddard, 429 Mich 505, 518; 418 NW2d 881 (1988). Instead, defendant’s statement
was the statement of a party-opponent under MRE 801(d)(2)(A) (“A statement is not hearsay if
the statement is offered against a party and is the party’s own statement . . . .”). “[T]he appropriate
analysis is whether the prior statement is relevant, and if so whether its probative value outweighs
its potential prejudicial effect.” Goddard, 429 Mich at 518. Defendant’s admission to York that
he was a middleman was relevant to the conspiracy and possession charges in this case because it
was essentially an admission of guilt, and any unfair prejudice was minimal. See People v Starr,
457 Mich 490, 503; 577 NW2d 673 (1998) (second and third alteration in original) (stating that
evidence is unduly prejudicial when it “stir[s] the jurors to such passion . . . as to [be swept] beyond
rational consideration of [the defendant’s] guilt or innocence of the crime on trial.”). Accordingly,
defendant’s argument fails.
Next, defendant argues that the prosecution failed to provide notice of its intent to introduce
bad-acts evidence at trial. Under MRE 404(b)(2):
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 [MRE 404](b)(1),
for admitting the evidence.
The notice requirement in MRE 404(b)(2) requires the prosecution to identify and seek to admit
only relevant bad-acts evidence; ensure that the defendant can object to and defend against the
bad-acts evidence; and to allow the trial court to thoughtfully determine on the record whether to
admit or exclude the bad-acts evidence. People v Hawkins, 245 Mich App 439, 454-455; 628
NW2d 105 (2001).
It is true that the prosecution did not file a written notice of its intent to seek the admission
of bad-acts evidence. Nor did the prosecution provide oral notice at trial. Thus, the prosecution
plainly erred by failing to comply with MRE 404(b)(2). However, this plain error does not
necessitate reversal if the underlying aims of MRE 404(b)(2) have been met. See Hawkins, 245
Mich App at 455-456; People v Dobek, 274 Mich App 58, 86-88; 732 NW2d 546 (2007).
As discussed, the majority of the testimony that defendant challenges was not bad-acts
evidence, but was instead relevant evidence that did not implicate MRE 404(b). Instead, the only
bad-acts evidence that was admitted at trial was Brumfield’s testimony that she had bought cocaine
from defendant. On appeal, defendant alleges that he was prejudiced by the lack of notice because
the trial court did not determine the admissibility of the evidence and defendant was not able to
request a limiting instruction at trial. In Hawkins, 245 Mich App at 455-456, this Court declined
to reverse the defendant’s conviction when the prosecution failed to comply with MRE 404(b)(2):
This does not mean that a failure to give notice will always be harmless
error if the evidence was eventually determined to be admissible. Rather, and this
brings us to the second factor, the harmless error standard requires us to consider
the effect plain error has on a proceeding. Because Hawkins has never suggested
how he would have reacted differently to this evidence had the prosecutor given
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notice, we have no way to conclude that this lack of notice had any effect
whatsoever. For instance, Hawkins has not suggested or created a record that would
suggest that, had he known the prosecutor intended to introduce this evidence, he
would have called another witness to testify, that his attorney would have objected
to the evidence, or that he would have provided other evidence to counter the prior
bad acts testimony.
The testimony at issue was admissible and an objection to the lack of notice would have
been meritless. See id. at 455 (“Because this evidence was admissible, notice to Hawkins would
not have had any effect on whether the trial court should have admitted it at trial, regardless of the
record or arguments that could have been developed and articulated following notice.”). Next, it
must be determined the effect that the lack of notice had on the trial. See id. According to
defendant, the only thing that he would have done differently with proper notice is that he would
have requested a limiting instruction. Given the substantial evidence that defendant conspired to
possess cocaine and that defendant possessed cocaine in the Arizona iced tea hide-a-can, a limiting
instruction would not have affected the outcome of the trial. Thus, defendant has not demonstrated
that the prosecution’s lack of notice was plain error that warrants reversal.
Defendant alternatively argues that defense counsel was ineffective for failing to object to
the unnoticed bad-acts evidence and to request a limiting instruction. Counsel was not ineffective
for failing to object to the testimony that did not implicate MRE 404(b) because the testimony was
proper and not objectionable. See Ericksen, 288 Mich App at 201. And to the extent that the bad-
acts evidence was improper, defendant has not demonstrated prejudice. Payne, 285 Mich App at
188-189. Accordingly, defendant has failed to establish his claim of ineffective assistance of
counsel.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Mark J. Cavanagh
/s/ Anica Letica
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