People of Michigan v. Terry Donald Devowe ( 2017 )


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  •                           STATE OF MICHIGAN
    COURT OF APPEALS
    PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
    August 22, 2017
    Plaintiff-Appellee,
    v                                                                   No. 332768
    Montcalm Circuit Court
    TERRY DONALD DEVOWE,                                                LC No. 2015-019951-FH
    Defendant-Appellant.
    Before: BOONSTRA, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.
    PER CURIAM.
    Defendant, Terry Donald Devowe, was convicted by a jury of tampering with an
    electronic monitoring device, MCL 771.3f, and was sentenced as a fourth-offense habitual
    offender, MCL 769.12, to 25 months to 15 years’ imprisonment, with no credit for time served
    because he was on parole. Defendant now appeals as of right. We affirm.
    This case involves defendant removing a tether he was legally required to wear because
    he was on parole, from his ankle. Defendant first argues that there was insufficient evidence to
    prove beyond a reasonable doubt that defendant removed the electronic monitoring device. We
    disagree.
    This Court “review[s] de novo a challenge to the sufficiency of the evidence.” People v
    Henry (After Remand), 
    305 Mich. App. 127
    , 142; 854 NW2d 114 (2014). “[W]hen determining
    whether sufficient evidence has been presented to sustain a conviction, a court must view the
    evidence in a light most favorable to the prosecution and determine whether any rational trier of
    fact could have found that the essential elements of the crime were proven beyond a reasonable
    doubt.” People v Wolfe, 
    440 Mich. 508
    , 515; 489 NW2d 748 (1992), amended 
    441 Mich. 1201
    (1992). “[A] reviewing court is required to draw all reasonable inferences and make credibility
    choices in support of the jury verdict.” People v Meshell, 
    265 Mich. App. 616
    , 621; 696 NW2d
    754 (2005) (quotation marks and citations omitted; alteration in the original). “All conflicts in
    the evidence must be resolved in favor of the prosecution,” and this Court “will not interfere with
    the jury’s determinations regarding the weight of the evidence and the credibility of the
    witnesses.” People v Unger, 
    278 Mich. App. 210
    , 222; 749 NW2d 272 (2008). “It is for the trier
    of fact, not the appellate court, to determine what inferences may be fairly drawn from the
    evidence and to determine the weight to be accorded those inferences.” People v Hardiman, 
    466 Mich. 417
    , 428; 646 NW2d 158 (2002).
    -1-
    MCL 771.3f provides in relevant part:
    (1) A person shall not knowingly and without authority remove, destroy,
    or circumvent the operation of an electronic monitoring device or knowingly
    interfere with a signal, impulse, or data that is being transmitted by or stored
    within an electronic monitoring device worn or otherwise used by an individual as
    a condition for any of the following:
    * * *
    (d) Parole.
    * * *
    (5) As used in this section, “electronic monitoring device” includes any
    electronic device or instrument that is used to track the location of a person or
    detect the presence of alcohol.
    Thus, to convict an individual of removing an electronic monitoring device, the
    prosecution must prove (1) that the defendant was on parole, (2) that the defendant was required
    to wear or otherwise use an electronic monitoring device as a condition of parole, (3) that the
    defendant removed, destroyed, or circumvented the operation of the electronic monitoring
    device, and (4) that the defendant did so knowingly and without authority. 
    Id. The fact
    that defendant was on parole and was required to wear an electronic monitoring
    device as a condition of his parole is undisputed. The parties stipulated to these facts at trial.
    Defendant’s appellate argument focuses on whether there was sufficient evidence to
    establish that defendant removed the electronic monitoring device from his ankle. Defendant
    stipulated at trial that he was in Grand Rapids on January 17, 2015, however his parole agent
    Gail Hohbach testified that the GPS data for defendant’s electronic monitoring device showed
    that defendant was in his home in Edmore, Michigan, from the evening of January 16, 2015,
    until the morning of January 18, 2015. Jessica Reuschel, the lead agent of the electronic
    monitoring center with Michigan Department of Corrections (MDOC), testified that the motion
    sensor on the electronic monitoring device is used to determine whether the device is “at rest” or
    not, and she also testified that the motion sensor distinguishes between two different forms of
    being at rest: physically at rest and geostationary at rest. The device is physically at rest when it
    is not physically moving at all, and geostationary at rest means that the device is within an
    approximately 50-foot radius of its last known point with no significant amount of motion
    detected. Dan Loeffert of 3M Electronic Monitoring, the company that manufactured the device,
    testified that geostationary at rest means that the monitoring device is within a certain defined
    area and has not moved outside of that area, even though there may be some minimal movement
    detected. He further testified that the monitoring device is physically at rest when it is
    nonmoving, not on an ankle, not moving slightly, and “there is no motion whatsoever.” He also
    described physically at rest as when the device was sitting by itself and was not on a person.
    According to Loeffert, the device could not be physically at rest if it was on a person’s ankle and
    the person was walking around in a small area, or if that person was lying in bed sleeping and
    rolled over, because the device would sense a motion.
    -2-
    Reuschel testified that defendant’s electronic monitoring device was physically at rest
    from 11:51 p.m. on January 16 until 7:40 a.m. on January 18. So, not only was defendant
    supposedly in his home continuously from the evening of January 16 to the morning of January
    18, but he supposedly was also not even walking around his house or moving at all during that
    period of more than 30 hours that encompassed the time that he admitted to being in Grand
    Rapids. Reuschel further testified that the data indicated that defendant’s device was taken off of
    the charger at 11:51 p.m. on January 16 and that it is not unreasonable for the battery in a fully
    charged device to last for over 30 hours when in the physically at rest mode. Furthermore,
    according to Reuschel, the device was working properly during the pertinent time frame. During
    that time frame, defendant’s device was sending data from the GPS receiver, the motion sensor
    was recording physically at rest, there were no alerts indicating that the device was damaged or
    unable to connect to the wireless network to send data, there were no low battery alerts, and there
    was nothing in the data to indicate that defendant’s monitoring device was not functioning
    properly. Reuschel testified that in her five years of using these devices, she had never
    experienced a situation where a device malfunctioned and reported itself as physically at rest for
    an extended period of time without actually being physically at rest. Agent Hohbach also
    testified that when she removed the device from defendant’s ankle on January 20, 2015, the
    device appeared to be in working condition and did not appear to be damaged.
    Additionally, there was testimony that Agent Hohbach left approximately an inch and a
    half of space when she put the strap of the monitoring device around defendant’s ankle and that
    this amount of space was too big. Agent Hohbach testified that she put the bracelet higher up on
    defendant’s leg because he was wearing high-top tennis shoes and that defendant had relatively
    small ankles. After Agent Hohbach received information that defendant had been in Grand
    Rapids visiting another parolee, Robert Corbett, whom he was prohibited from seeing by the
    conditions of his parole, defendant was picked up and brought to the parole office. He was still
    wearing the electronic monitoring device. Agent Hohbach and her supervisor slid the monitoring
    device down to defendant’s heel as defendant kept his foot locked at an angle, and the device did
    not slide off. Agent Hohbach did not try to remove the device because she had checked the GPS
    data for defendant’s device and did not think at that point that defendant had been in Grand
    Rapids; her GPS data that she initially consulted did not show whether the device was physically
    at rest or geostationary at rest. Agent Hohbach and her supervisor did not instruct defendant to
    straighten his foot in order to try to slide the tether bracelet off.
    However, another parole agent, Agent Byrnes, who also observed what is described
    above, stated that the strap on the device was very loose and was looser than he would have
    installed it. Agent Byrnes thought that the tether bracelet would have come off if defendant’s
    foot had been extended down and they had tried to slide the bracelet straight down. Agent
    Byrnes then cut the strap off of defendant’s ankle, and he noticed a “lubricant oil” substance in
    the clips of the strap. He touched the substance, and it was wet and oily. Agent Hohbach
    testified that the substance “looked like a jelly.” According to the testimony of both Agent
    Byrnes and Agent Hohbach, it was not normal to find such a substance in the clips when
    removing a tether bracelet, and the substance was not shampoo or body lotion. Agent Byrnes
    testified that he assumed that the substance helped defendant remove the bracelet.
    Viewing this evidence in a light most favorable to the prosecution and drawing all
    reasonable inferences in support of the jury verdict, a rational jury could conclude that defendant
    -3-
    slid the electronic monitoring device off of his ankle and left it in his house while he went to
    Grand Rapids and that he slid the device back onto his ankle on the morning of January 18.
    
    Wolfe, 440 Mich. at 515
    ; 
    Meshell, 265 Mich. App. at 621
    .
    Finally, a rational trier of fact could reasonably infer that defendant knowingly removed
    his tether, and there is no evidence that defendant had authority to remove the tether. Agent
    Hohbach testified that she slid the ankle bracelet down to defendant’s heel when she put the
    tether on to see if it would come off. As stated, an oily substance was found in the clips on the
    strap after it was cut off of defendant’s ankle. Moreover, defendant stipulated to the fact that he
    went to Grand Rapids to see Corbett, which was prohibited by the terms of his parole. There was
    also testimony that the data from defendant’s monitoring device showed that the device was
    physically at rest in defendant’s residence in Edmore for the period of time during which
    defendant was in Grand Rapids. After this meeting, defendant was brought to the parole office,
    and he was wearing the tether. A jury could reasonably conclude from this evidence that the
    tether did not somehow come off accidentally, that defendant knowingly used some type of jelly-
    like substance as a lubricant and slid the tether off his ankle so that he would not be tracked to
    his meeting with Corbett, and that defendant subsequently slid the tether back on so that it would
    appear that he had never left his residence. “[B]ecause it can be difficult to prove a defendant’s
    state of mind on issues such as knowledge and intent, minimal circumstantial evidence will
    suffice to establish the defendant’s state of mind, which can be inferred from all the evidence
    presented.” People v Kanaan, 
    278 Mich. App. 594
    , 622; 751 NW2d 57 (2008) (citations omitted).
    Nonetheless, defendant essentially argues that the evidence was insufficient because the
    prosecution did not produce direct evidence that defendant removed his tether, the prosecution
    did not produce evidence that the monitoring device was not malfunctioning, and the
    prosecution’s theory that defendant removed his tether and left it in his residence while he went
    to Grand Rapids and then reattached his tether was purely circumstantial. However,
    “[c]ircumstantial evidence and the reasonable inferences that arise from that evidence can
    constitute satisfactory proof of the elements of the crime.” People v Henderson, 
    306 Mich. App. 1
    , 9; 854 NW2d 234 (2014). Moreover, the prosecution “is not obligated to disprove every
    reasonable theory consistent with innocence to discharge its responsibility; it need only convince
    the jury in the face of whatever contradictory evidence the defendant may provide.” People v
    Nowack, 
    462 Mich. 392
    , 400; 614 NW2d 78 (2000) (quotation marks and citation omitted).
    Therefore, viewing the evidence in a light most favorable to the prosecution, a rational
    trier of fact could have found beyond a reasonable doubt that defendant was guilty of tampering
    with an electronic monitoring device. MCL 771.3f; 
    Wolfe, 440 Mich. at 515
    .
    Next, defendant argues that his Sixth Amendment right to confront witnesses against him
    was violated by the admission of evidence of a report from 3M that indicated that the tether
    device was operating properly. We disagree.
    Defendant did not make any objections to the report that he now challenges on appeal,
    and he therefore has failed to preserve his Confrontation Clause issue for appellate review.
    
    Henry, 305 Mich. App. at 152
    .
    -4-
    “Whether defendant was denied his right of confrontation involves a question of
    constitutional law that we review de novo.” 
    Id. However, this
    Court “review[s] unpreserved
    constitutional issues for plain error affecting defendant’s substantial rights.” 
    Id. On plain-error
    review, the defendant has the burden to show (1) “error”; (2) that was “plain,” meaning “clear or
    obvious”; (3) and that affected substantial rights or caused prejudice, meaning “that the error
    affected the outcome of the lower court proceedings.” People v Carines, 
    460 Mich. 750
    , 763;
    597 NW2d 130 (1999).
    The Confrontation Clause of the United States Constitution provides, “In all criminal
    prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
    him . . . ” US Const, Am VI; see also Const 1963, art 1, § 20. “The Sixth Amendment bars
    testimonial statements by a witness who does not appear at trial unless the witness is unavailable
    and the defendant had a prior opportunity to cross-examine the witness.” People v Yost, 
    278 Mich. App. 341
    , 370; 749 NW2d 753 (2008), citing Crawford v Washington, 
    541 U.S. 36
    , 53-54;
    
    124 S. Ct. 1354
    ; 
    158 L. Ed. 2d 177
    (2004). “To rank as testimonial, a statement must have a
    primary purpose of establish[ing] or prov[ing] past events potentially relevant to later criminal
    prosecution.” 
    Henry, 305 Mich. App. at 153
    (quotation marks and citation omitted; alterations in
    the original). “The Confrontation Clause concerns out-of-court statements of witnesses, that is,
    persons who bear testimony against the defendant.” 
    Id. “In pursuit
    of the Clause’s truth-seeking
    purpose, our criminal jurisprudence is clear, then, that [a] person accused of a crime has a right,
    at his trial, to be confronted, face to face, with the witnesses against him.” People v Fackelman,
    
    489 Mich. 515
    , 528; 802 NW2d 552 (2011) (quotation marks and citation omitted; alteration in
    the original). Furthermore, “the Confrontation Clause applies only to statements used as
    substantive evidence.” 
    Id. “ ‘[T]he
    principal evil at which the Confrontation Clause was
    directed was the civil-law mode of criminal procedure, and particularly its use of ex parte
    examinations as evidence against the accused.’ ” People v Nunley, 
    491 Mich. 686
    , 697; 821
    NW2d 642 (2012), quoting 
    Crawford, 541 U.S. at 50
    .
    Here, defendant bases his Confrontation Clause challenges on a portion of Reuschel’s
    testimony and a portion of the prosecutor’s closing rebuttal argument that referred to the
    testimony regarding the report. First, defendant’s challenge involves the following testimony by
    Reuschel:
    [Prosecutor]: In this particular case, are you aware whether that bracelet
    was sent to 3M?
    [Reuschel]: I believe it was sent to 3M.
    [Prosecutor]: Did you receive a bill to fix or repair or anything with that
    bracelet?
    [Reuschel]: No.
    [Prosecutor]: Okay.
    [Reuschel]: They—we only sent it to them to inspect it for the court case,
    which they do for us also. So it wasn’t sent back to them as damaged. It was sent
    back to be inspected.
    -5-
    [Prosecutor]: Okay. And they didn’t find anything wrong with it?
    [Reuschel]: No.
    During rebuttal, the prosecutor stated:
    You did hear that there were no problems with this device. Ms. Reuschel
    said it was checked by 3M, came back with no problems, nothing wrong with it.
    So I did show you that it was working.
    On appeal, defendant claims that these statements referred to a report that, according to
    defendant, was created by 3M and concluded that defendant’s electronic monitoring device was
    functioning properly. As an initial matter, although defendant refers to this alleged 3M report
    that he challenges on appeal as if its existence is a foregone conclusion, there is no evidence on
    this record that such a report actually exists or was ever produced. Such a report was never
    admitted into evidence, and the above statements cited by defendant do not mention any
    “report.” While defendant claims in his brief on appeal that the alleged report that he challenges
    was “eight sentences” long, it is unclear how defendant can support this claim because there are
    no references in the record to a 3M report that was eight sentences long or that involved a
    conclusion about the functionality of the monitoring device. Defendant also explicitly does not
    challenge the 3M report that was admitted into evidence, which provided details about when
    defendant’s monitoring device was physically at rest and geostationary at rest. This was the only
    report about which Reuschel and Loeffert explicitly testified. Therefore, defendant has failed to
    meet his burden to show that plain error occurred. 
    Carines, 460 Mich. at 763
    .
    Furthermore, to the extent that Reuschel’s testimony could be understood as a reference
    to some communication that 3M made to her indicating that 3M did not discover any problems
    with the device and to the extent that the admission of such testimony could be considered
    erroneous, defendant nonetheless has not established that he was prejudiced. Reuschel also
    testified extensively about how she could tell from the device data that the device was operating
    properly during the pertinent time period. She testified that the device was sending a signal
    every hour during the pertinent time frame indicating its GPS position and that it was physically
    at rest. Reuschel testified that there were no alerts indicating that the device was unable to
    connect to the wireless network, that the device was damaged, or that the device had a low
    battery. Reuschel testified that usually if a device fails, it fails completely; in other words, the
    GPS stops working and never turns back on. According to Reuschel, there was nothing in the
    data that would indicate that defendant’s tether was not functioning properly. Although the data
    showed that the monitoring device was physically at rest for approximately 31 hours, Reuschel
    testified that the battery in the device was capable of lasting over 30 hours when in the physically
    at rest mode. Reuschel had also never seen a situation where the device malfunctioned and
    reported itself as being physically at rest for an extended period when it was actually not
    physically at rest.
    Therefore, even if the statements challenged by defendant could be understood as oblique
    references to some communication from 3M about the functionality of the tether unit that were
    admitted erroneously, defendant has failed to establish on appeal that the error affected the
    outcome of the proceedings because there was significant other testimony to support the
    -6-
    conclusion that the device was functioning properly during the pertinent time period; defendant
    has not demonstrated plain error requiring reversal on this ground. 
    Carines, 460 Mich. at 763
    .
    Next, defendant argues that in the alternative, defense counsel provided ineffective
    assistance of counsel by failing to object to the admission of evidence of the 3M report because
    defendant was denied the opportunity to cross-examine a critical adverse witness. We disagree.
    Defendant did not move the trial court for a new trial or for an evidentiary hearing, and
    he therefore has failed to preserve his ineffective assistance of counsel issue for appellate review.
    People v Sabin (On Second Remand), 
    242 Mich. App. 656
    , 658; 620 NW2d 19 (2000).
    “Unpreserved issues concerning ineffective assistance of counsel are reviewed for errors
    apparent on the record.” People v Lockett, 
    295 Mich. App. 165
    , 186; 814 NW2d 295 (2012). “A
    claim of ineffective assistance of counsel presents a mixed question of fact and constitutional
    law.” 
    Unger, 278 Mich. App. at 242
    . Factual findings are reviewed for clear error, and questions
    of constitutional law are reviewed de novo. 
    Id. “[T]o find
    that a defendant’s right to effective assistance of counsel was so undermined
    that it justifies reversal of an otherwise valid conviction, a defendant must show that counsel’s
    performance fell below an objective standard of reasonableness, and that the representation so
    prejudiced the defendant as to deprive him of a fair trial.” People v Pickens, 
    446 Mich. 298
    , 338;
    521 NW2d 797 (1994). “The defendant must overcome the presumption that the challenged
    action could have been sound trial strategy,” however the court must also “ensure that counsel’s
    actions provided the defendant with the modicum of representation that is his constitutional right
    in a criminal prosecution.” People v Grant, 
    470 Mich. 477
    , 485; 684 NW2d 686 (2004). To
    show prejudice, the defendant “must show a reasonable probability that the outcome would have
    been different but for counsel’s errors.” 
    Id. at 486.
    “A reasonable probability need not rise to
    the level of making it more likely than not that the outcome would have been different,”
    however, “[t]he result of a proceeding can be rendered unreliable, and hence the proceeding itself
    unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have
    determined the outcome.” 
    Id. “Effective assistance
    of counsel is presumed,” and “[t]he
    defendant bears a heavy burden of proving otherwise.” People v Rockey, 
    237 Mich. App. 74
    , 76;
    601 NW2d 887 (1999). “This Court will not substitute its judgment for that of counsel regarding
    matters of trial strategy, nor will it assess counsel’s competence with the benefit of hindsight.”
    
    Id. at 76-77.
    “Failure to make the required showing of either deficient performance or sufficient
    prejudice defeats the ineffectiveness claim.” Strickland v Washington, 
    466 U.S. 668
    , 700; 104 S
    Ct 2052; 
    80 L. Ed. 2d 674
    (1984).
    Defendant’s argument is based on the failure of defense counsel to object to testimony
    referring to an eight-sentence 3M report concluding that the tether unit was functioning properly.
    However, as previously discussed, there was no mention of any such report to which defense
    counsel could have objected. Defendant also has not provided any evidence that such a report
    exists. The appellant bears “the burden of furnishing the reviewing court with a record to verify
    the factual basis of any argument upon which reversal was predicated.” People v Elston, 
    462 Mich. 751
    , 762; 614 NW2d 595 (2000). Furthermore, to the extent that the testimony could be
    understood as a reference to some communication from 3M about the proper functioning of the
    device, defense counsel may have made the choice not to object so as not to call attention to
    -7-
    evidence that was contrary to the defense theory at trial that the device may have been
    malfunctioning. “[T]here are times when it is better not to object and draw attention to an
    improper comment,” and “declining to raise objections, especially during closing arguments, can
    often be consistent with sound trial strategy.” 
    Unger, 278 Mich. App. at 242
    (quotation marks and
    citation omitted). Thus, defendant has not shown that counsel performed below an objective
    standard of reasonableness. 
    Pickens, 446 Mich. at 338
    .
    Additionally, in light of Reuschel’s substantial testimony that the device was working
    properly during the pertinent time period, discussed above, defendant also has not shown a
    reasonable probability that the outcome of the trial would have been different but for the
    admission of these brief, duplicative references to a conclusion by 3M that the device was
    functioning properly. 
    Grant, 470 Mich. at 486
    . Therefore, defendant has not shown that he
    received ineffective assistance of counsel. 
    Strickland, 466 U.S. at 700
    .
    Finally, defendant requests in the alternative that this Court remand the matter for a
    Ginther1 hearing. However, for the reasons discussed above, defendant has failed to show that
    further development of a factual record is required for appellate consideration of the issue, and
    his request is denied. MCR 7.211(C)(1)(a)(ii).
    Affirmed.
    /s/ Mark T. Boonstra
    /s/ Amy Ronayne Krause
    /s/ Brock A. Swartzle
    1
    People v Ginther, 
    390 Mich. 436
    , 443; 212 NW2d 922 (1973).
    -8-