PEOPLE OF MI V STEPHEN DOUGLAS BANFIELD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 15, 2005
Plaintiff-Appellee,
v
No. 256560
Isabella Circuit Court
LC No. 03-000907-FH
STEPHEN DOUGLAS BANFIELD,
Defendant-Appellant.
Before: Hoekstra, P.J., and Neff and Davis, JJ.
PER CURIAM.
Defendant was convicted by a jury of two counts of first-degree retail fraud, MCL
750.356c. He was sentenced as a fourth habitual offender, MCL 769.12, to concurrent sentences
of fifty-eight months’ to twenty years’ imprisonment for both convictions. We affirm.
I
This case stems from a charge of retail fraud involving two vacuum cleaners returned to a
Kmart store in Mt. Pleasant on two separate dates. Defendant presented defaced receipts and
was given $279.99 and $279.98 in cash. During one incident the UPC label on the vacuum
cleaner box indicated that it was priced at $79.99. The service clerk called her manager because
the number did not match the receipt and observed defendant removing this UPC label to reveal
another label. The manager then returned $279.98 in cash to defendant. Defendant was seen
leaving with an older gray-haired man in a white Pontiac Bonneville. Other acts evidence from
returns or attempted returns at five other Kmart stores indicated that defendant acted in concert
with an older gray-haired man apparently named James Hodge and revealed significant details
about the mechanics of an apparent scheme including evidence that defendant used fake UPC
labels and defaced receipts.
The prosecution also introduced other acts evidence that Kmart stores returned exactly
$279.98 in cash on fifty-nine separate occasions to an individual presenting a Michigan driver’s
license beginning with the same nine digits as defendant’s driver’s license. During this same
time frame defendant applied for four temporary paper driver’s licenses, valid for ninety days.
Additionally, the prosecution presented evidence that Kmart stores returned exactly $279.98 in
cash on over two hundred separate occasions to an individual presenting a Michigan driver’s
license beginning with the same nine digits as Hodge’s driver’s license.
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II
Defendant first argues that the trial court erred when it allowed the introduction of certain
MRE 404(b) evidence and that the prosecutor committed misconduct in certain remarks related
to the other acts evidence. We disagree.
This Court reviews the admission of similar acts evidence for an abuse of discretion.
People v Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998). Similarly, this Court reviews a
trial court’s decision to deny a motion for a mistrial for an abuse of discretion. People v Dennis,
464 Mich 567, 572; 628 NW2d 502 (2001). An abuse of discretion exists when an unprejudiced
person, considering the facts upon which the trial court acted, would say that there was no
justification or excuse for the ruling made. People v Hendrickson, 459 Mich 229, 235; 586
NW2d 906 (1998). Finally, we review claims of prosecutorial misconduct de novo to determine
if the defendant was denied a fair and impartial trial. People v Thomas, 260 Mich App 450, 453;
678 NW2d 631 (2004).
Evidence of other crimes, wrongs, or acts is admissible under MRE 404(b) if such
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 apart from
propensity, and (3) the danger of unfair prejudice does not substantially outweigh the probative
value of the evidence under MRE 403.1 People v VanderVliet, 444 Mich 52, 55, 74-75; 508
NW2d 114 (1993). “Relevant other acts evidence does not violate MRE 404(b) unless it is
offered solely to show the criminal propensity of an individual to establish that he acted in
conformity therewith.” Id. at 65. Here, the prosecution offered the other acts evidence for a
proper purpose, to show identity, system in doing an act, preparation, scheme, or absence of
mistake or accident.
The evidence was clearly relevant to proving defendant had a common scheme or plan
and meets the standard of proof required for admission of other acts evidence as established in
VanderVliet. The evidence introduced was of similar misconduct and was logically relevant to
show that the charged acts occurred because the uncharged misconduct and the charged offenses
are sufficiently similar to support an inference that they are manifestations of a common plan,
scheme, or system. People v Sabin, 463 Mich 43, 63; 614 NW2d 888 (2000). “To establish the
existence of a common design or plan, the common features must indicate the existence of a plan
rather than a series of similar spontaneous acts, but the plan revealed need not be distinctive or
unusual.” Id. at 65-66, quoting People v Ewoldt, 7 Cal 4th 380 403; 867 P2d 757 (1994).
First, the other acts taking place in Alma, Michigan; Gaylord, Michigan; Utica,
Michigan; and Dewitt, New York were logically relevant to proving the charged offense apart
from showing propensity. The prosecution offered adequate evidence to demonstrate that the
other acts occurred. Four eyewitnesses identified defendant and testified that they witnessed five
other acts taking place in Alma, Gaylord, Utica, and Dewitt.
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MRE 403 provides in relevant part that “evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.”
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Additionally, the acts were sufficiently similar to the charged offense to be relevant. In
the charged offense defendant returned a vacuum cleaner to Kmart, used a damaged receipt,
stated he was returning it for his mother, and left in a white Bonneville with an older gray-haired
man. The other acts evidence from these four stores shows that defendant returned, attempted to
return, or purchased a vacuum cleaner, presented a damaged or incomplete receipt, stated he was
making the return for his mother, and either arrived or left the scene in a white Bonneville
accompanied by an older gray-haired man.
Moreover, the evidence is clearly relevant to show defendant’s common plan, scheme or
system. The other acts evidence was relevant to demonstrating that defendant tampered with
UPC labels showing that on one occasion defendant placed a fake UPC label on an expensive
vacuum and attempted to purchase it for the lower price. It also showed that on another occasion
defendant tampered with a vacuum box in the parking lot and then returned the same vacuum
with a fake UPC label indicating that the vacuum was worth $329.00 when the true value of the
vacuum was only $79.99. This evidence demonstrated the mechanics of the scheme and was
logically relevant to proving that the charged acts occurred.
Next, the evidence of returns associated with defendant’s and Hodge’s driver’s licenses
was logically relevant to proving he committed the charged offense. Contrary to defendant’s
suggestion, there was sufficient evidence to conclude that defendant committed the acts. The
prosecution presented evidence that Kmart stores returned exactly $279.98 in cash on fifty-nine
separate occasions to an individual presenting a Michigan driver’s license beginning with the
same nine digits as defendant’s driver’s license. And two of the returns went to an individual
presenting a driver’s license that exactly matched defendants. During this same time frame
defendant applied for four temporary paper driver’s licenses, valid for ninety days. The evidence
supports a reasonable inference that defendant altered his temporary license by changing the
final three digits and presented this altered paper license when making a return.
Additionally, although Hodge was not charged for his involvement in the Mt. Pleasant
incidents, there was enough evidence for a reasonable jury to conclude that defendant acting with
Hodge was involved in the returns associated with Hodge’s driver’s license. Hodge or a man
matching Hodge’s description was witnessed accompanying defendant during all five of the
other acts incidents presented at trial, in addition to one of the two incidents in Mt. Pleasant
which resulted in the instant charges. The evidence is more than sufficient to infer that
defendant was acting with Hodge in perpetrating a scheme to defraud Kmart. Moreover, the
prosecution presented evidence that Kmart stores returned exactly $279.98 in cash on over two
hundred separate occasions to an individual presenting a Michigan driver’s license beginning
with the same nine digits as Hodge’s driver’s license. The court did not abuse its discretion
when it concluded that the jury could reasonably find that there was a preponderance of evidence
to link defendant to the returns committed by Hodges. VanderVliet, supra at 68-69 n 20.
Additionally, the other acts are sufficiently similar to the charged offense to be relevant.
Like the charged offense, the returns were all from Kmart for approximately $279 and a random
sample of ten of these returns revealed that all ten were vacuum cleaner returns. It can be
inferred that defendant either failed to present a receipt or presented a damaged receipt on each
occasion because trial testimony indicated that Kmart only records driver’s licenses if the receipt
was damaged or missing. Accordingly, the other acts were relevant to proving defendant acted
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with a common scheme or plan to defraud Kmart by failing to present a receipt or presenting a
damaged receipt.
Defendant asserted in opening and closing arguments that he was duped by Hodge and
that Hodge was the kingpin in the operation. In Crawford, supra at 392-393, our Supreme Court
accepted the “doctrine of chances” to determine if MRE 404(b) evidence satisfied the probative
value prong of relevance. “Where material to the issue of mens rea, ... [the “doctrine of
chances”] rests on the premise that ‘the more often the defendant commits an actus reus, the less
is the likelihood that the defendant acted accidentally or innocently.’” Id. at 393, quoting
Imwinkelried, Uncharged Misconduct Evidence, § 3:11, p 45. Here, the volume of returns
evidenced by the data linked to defendant’s and Hodge’s driver’s licenses rebuts any suggestion
by defendant that he innocently returned the vacuum at Hodge’s request.
Further, we conclude that the probative value of the evidence was not substantially
outweighed by the danger of unfair prejudice to defendant. Unfair prejudice exists when there is
a tendency that the evidence will be given undue or preemptive weight by the trier of fact.
People v McGuffey, 251 Mich App 155, 163; 649 NW2d 801 (2002). Here, the other acts
evidence related to the incidents in Alma, Michigan; Gaylord, Michigan; Utica, Michigan; and
Dewitt, New York was highly probative, provided significant evidence regarding the mechanics
of defendant’s scheme to defraud Kmart, and clearly outweighed any prejudicial effect.
However, evidence of returns linked to defendant by his and Hodge’s driver’s license
numbers carried a greater risk of prejudice. These returns resulted in losses to Kmart of nearly
$100,000, while the losses associated with the charged offenses were only $600. While there
was a risk that the jury would give the evidence undue weight, the evidence was significantly
probative of defendant’s scheme. Accordingly, it cannot be said that the trial court abused its
discretion in making this determination. Sabin, supra at 67. The determination of whether the
probative value of evidence is substantially outweighed by its prejudicial effect is best left to a
contemporaneous assessment of the presentation, credibility and effect of the testimony. People
v Magyar, 250 Mich App 408, 416; 648 NW2d 215 (2002).
Because the other acts evidence was properly admitted under MRE 404(b), reference to it
during the prosecutor’s opening statement did not deprive defendant of a fair trial or constitute
prosecutorial misconduct.
III
Defendant also objects to the prosecutor’s indication in opening statement that defendant
was associated with fraudulent returns totaling $100,000 when in fact the evidence indicated that
the returns only totaled $90,000. But defendant did not object to the opening statement on this
ground. Therefore, we review this claim only for plain error affecting defendant’s substantial
rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
This argument is completely without merit. The prosecution introduced evidence that
approximately $16,000 in returns were associated with defendant’s driver’s license number and
that approximately $90,000 in returns were associated with Hodge’s driver’s license number.
Accordingly, it was not prosecutorial misconduct to reference $100,000 of total returns when in
fact the prosecution introduced evidence supporting the statement.
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IV
Next, defendant also objects to the prosecutor’s reference in his opening statement to
returns at a Meijer store. Again, defendant did not object to the opening statement on this
ground. Therefore, we review this claim only for plain error affecting defendant’s substantial
rights. Carines, supra at 763. During his opening statement the prosecutor did refer to a
Meijer’s store, but is manifest that the prosecutor intended to refer to Kmart and merely
misspoke when he referenced Meijer on this occasion. Any jurors who even took note of the
fleeting reference to Meijer would have realized that it was a mere misstatement. We conclude
that the misstatement did not constitute plain error affecting defendant’s substantial rights.
V
Next on appeal, defendant argues that the trial court erroneously scored offense variables
(OV) 12, 13, 14 and 16. Defendant also argues that that Blakely v Washington, 542 US 296; 124
S Ct 2531; 159 L Ed 2d 403 (2004), mandates reversal. We disagree.
As related to the scoring of OV 12, OV 14 and OV 16, this Court reviews a trial court’s
factual findings at sentencing for clear error. People v Houston, 261 Mich App 463, 471; 683
NW2d 192 (2004). Moreover, “[a] sentencing court has discretion in determining the number of
points to be scored, provided that evidence of record adequately supports a particular score.”
People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002). “Scoring decisions for
which there is any evidence in support will be upheld.” Id. Thus, this Court reviews a scoring
issue to determine whether the sentencing court properly exercised its discretion and whether the
evidence properly supported a particular score. People v McLaughlin, 258 Mich App 635, 671;
672 NW2d 860 (2003).
As to the scoring of OV 13, this Court reviews defendant’s claim under a plain error
standard because defendant’s challenge to this scoring was not preserved below. Kimble, supra
at 309. To obtain relief for an unpreserved error, a defendant must show plain error that affected
the defendant’s substantial rights. People v Carines, supra at 763. In addition, the defendant
must show that the error resulted in the conviction of an actually innocent person or seriously
affected the fairness, integrity, or public reputation of the judicial proceeding. Id.
Ten points should be assessed for OV 12 if “[t]hree or more contemporaneous felonious
criminal acts involving other crimes were committed.” MCL 777.42(1)(c). OV 12 also
provides, that a felonious criminal act is contemporaneous if the act occurred within twenty-four
hours of the sentencing offense and the act has not and will not result in a separate conviction.
MCL 777.42(2)(a).
The prosecution offered evidence at the sentencing hearing indicating that three cash
refunds were given to individuals presenting a Michigan driver’s license beginning with the
same nine digits as defendant’s driver’s license number on October 10, 2002, at a Kmart store in
Bay City, Michigan and two separate Kmart stores in Saginaw, Michigan. As noted above, there
is significant evidence linking defendant to these returns, including evidence that nine digits of
his driver’s license number matched the driver’s license number used by the person making the
returns, evidence that defendant obtained several temporary paper licenses which could be easily
altered, evidence that returns were for the exact same amount as the returns defendant was
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convicted for, $279.98, and evidence that the returns were geographically proximate to
sentencing offenses, approximately fifty miles apart. Finally, all of the returns occurred on
October 10, 2002, the same day as one of the offenses of which defendant was convicted.
Because there is record evidence adequately supporting the score, the trial court cannot be said to
have abused its discretion in scoring OV 12. Hornsby, supra at 468.
Defendant argues that OV 13 should have been scored at five points because he had not
committed any crimes against persons. In addition to the two charged offenses and the other acts
evidence, defendant’s presentence investigation report indicates that defendant was convicted of
controlled substance offenses and several crimes against property including convictions for firstdegree retail fraud in 2000, shoplifting in 2001, and theft in 2002. We find it was not plain error
to assess ten points under OV 13 because OV 13 allows the court to assess ten points for “a
pattern of felonious criminal activity directly related to membership in an organized criminal
group.” MCL 777.43(1)(d). There are significant facts which would allow the court to
determine the existence of such a group, particularly that defendant told investigating officers
that he was aware of a vacuum cleaner scam and implicated Hodge and an individual named
Sandy further suggesting that defendant was only a “small fish.”
OV 14 requires the court to assess ten points if the offender “was a leader in a multiple
offender situation.” MCL 777.44(1). OV 14 also provides that “the entire criminal transaction
should be considered when scoring this variable” and “[i]f 3 or more offenders were involved,
more than 1 offender may be determined to have been a leader.” MCL 777.44(2). At trial, a
state police forensic computer analyst testified that she recovered several images of a Kmart
receipt for a vacuum cleaner on defendant’s computer. At sentencing the prosecution offered
that Hodge readily admitted his guilt and stated that defendant introduced him to the scheme and
showed him how to do it. This evidence supports the proposition that defendant was the leader
of the scheme. Accordingly, the court did not abuse its discretion by assessing ten points under
OV 14.
OV 16 requires the court to assess ten points for property obtained where “[t]he property
had a value of more than $20,000.00.” MCL 777.46(1). OV 16 also provides “[i]n multiple
offender or victim cases, the appropriate points may be determined by adding together the
aggregate value of the property involved, including property involved in uncharged offenses or
charges dismissed under a plea agreement.” MCL 777.46(2). At sentencing, a Kmart district
loss prevention manager testified that she linked defendant’s driver’s license number to $25,000
in returns to Kmart stores. Additionally, as noted there is evidence that defendant and Hodge
participated in the same criminal enterprise. Accordingly, the court could consider the
“aggregate value of the property involved, including property involved in uncharged offenses” in
this multiple offender situation. MCL 777.46(2). The court did not abuse its discretion by
assessing ten points under OV 16.
Finally, we reject defendant’s argument that Blakely mandates reversal because points
were scored for OV 12, OV 13, OV 14 and OV 16 based on uncharged acts because Blakely does
not apply to sentences imposed in Michigan. People v Wilson, 265 Mich App 386, 399; 695
NW2d 351 (2005).
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VI
Defendant argues that the trial court inappropriately required defendant to pay restitution
for losses associated with both his and Hodge’s driver’s license numbers. We disagree.
Because defendant failed to challenge the restitution award he must show plain error that
affected his substantial rights. Carines, supra at 763-764. In addition, defendant must show that
the error resulted in the conviction of an actually innocent person or seriously affected the
fairness, integrity, or public reputation of the judicial proceeding. Id. MCL 780.766(2) provides
that “the court shall order . . . that the defendant make full restitution to any victim of the
defendant’s course of conduct that gives rise to the conviction.” An award of restitution, if
disputed, must be proven by a preponderance of the evidence. MCL 780.767(4). The court is to
consider the amount of the victim’s losses as a result of the offense when determining an award
of restitution. MCL 780.767(1).
Here, the trial court ordered defendant to pay restitution in the amount of $98,370.02.
This amount was based on testimony offered during sentencing that showed the first nine digits
of defendant’s and Hodge’s driver’s license numbers were linked to refunds from Kmart totaling
$98,370.02. As noted above, there was significant evidence linking defendant to Hodge and the
returns associated with both of their driver’s license numbers. It was not plain error to conclude
that defendant’s course of conduct resulted in a loss to Kmart of $98,370.02. Accordingly, the
court did not commit plain error with regard to the restitution order.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Janet T. Neff
/s/ Alton T. Davis
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