PEOPLE OF MI V SHIRLEY LOUISE BODELL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 31, 2008
Plaintiff-Appellee,
v
No. 274098
Eaton Circuit Court
LC No. 06-020058-FC
SHIRLEY LOUISE BODELL,
Defendant-Appellant.
Before: Beckering, P.J., and Sawyer and Fort Hood, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of two counts of armed robbery, MCL
750.529, and sentenced to concurrent prison terms of 10 to 20 years each. She appeals as of
right. We affirm. This appeal is being decided without oral argument pursuant to MCR
7.214(E).
Defendant’s convictions arise from the robbery of a Check-N-Go store in Charlotte at
approximately 5:49 p.m. on January 6, 2006. The appearance of the perpetrator and the method
of committing the crime were similar to robberies at two other Check-N-Go stores, one in
Hastings at approximately 4:51 p.m. on January 6, 2006, and one in Kalamazoo on December 6,
2005. The only contested issue at trial was the identity of the perpetrator. Defendant presented
her friend, Robert Hadaway, who testified that on January 6, 2006, she was at a restaurant in
Battle Creek from 2:00 p.m. to approximately 3:05 p.m., and at a gas station at approximately
3:35 p.m. Shortly thereafter, Hadaway saw a white van that he assumed was defendant’s van
turn into a parking lot by Target and an ABC Warehouse store. An employee of ABC
Warehouse testified that defendant was shopping at the store in the early afternoon, which to him
meant between 12:00 noon until 3:30 p.m.
On appeal, defendant claims that the evidence was insufficient to establish that she was
the perpetrator because in order to have committed both of the robberies on January 6, 2006, she
would have had to change her clothes and drive from Battle Creek to Hastings, commit the
robbery there, then drive to Charlotte and rob that store by 5:49 p.m.
When reviewing the sufficiency of the evidence in a criminal case, this Court must view
the evidence in a light most favorable to the prosecution to determine whether a rational trier of
fact could have found the essential elements of the crime proven beyond a reasonable doubt.
People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999). The prosecution must prove the
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identity of the defendant as the perpetrator of a charged offense beyond a reasonable doubt.
People v Kern, 6 Mich App 406, 409-410; 149 NW2d 216 (1967); People v Oliphant, 399 Mich
472, 489; 250 NW2d 443 (1976). A positive identification by a witness or circumstantial
evidence and reasonable inferences arising from it may be sufficient to support a conviction.
People v Nelson, 234 Mich App 454, 459; 594 NW2d 114 (1999), lv den 461 Mich 919 (1999);
People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000). The credibility of
identification testimony is to be determined by the trier of fact. Id., pp 699-700; People v
Daniels, 172 Mich App 374, 378; 431 NW2d 846 (1988), lv den 433 Mich 906 (1989).
Although the perpetrator’s face was partially obscured by a hat pulled down to the
eyebrows, glasses, and a scarf around the person’s neck and mouth, complainant Debra
Etheridge identified defendant, a former Check-N-Go employee whom Etheridge had previously
met on at least three other occasions, as the robber and stated that she was 99 percent sure.
However, on cross-examination, she indicated that she could not “positively identify” defendant.
Complainant Patricia Goshorn also identified defendant in court, and was “reasonably sure” that
she was the perpetrator. The employees at the Hastings store also identified defendant, although
they acknowledged that they were not 100 percent certain. One was 99 percent sure. In addition
to the eyewitness identification, defendant was linked to the crimes by the discovery of items at
her residence, including a long denim jacket that was used by the perpetrator and which had a
cap, plastic bags like those used in the robberies, and a BB gun in the pocket. Another BB gun
and plastic bags were found in a box in the closet. Deposits made to defendant’s bank accounts
in the days following the robberies were similar to the amounts taken in the robberies. In
addition, the prosecution presented surveillance videotapes and still photographs depicting the
incidents.
Furthermore, defendant’s alibi testimony, even if believed, did not exonerate defendant.
Approximately an hour and 14 minutes elapsed between the time Hadaway observed defendant
in Battle Creek and the commission of the robbery in Hastings. Detective Robert King drove
between the gas station in Battle Creek and the Check-N-Go store in Hastings and the drive time
was only 44 minutes. Approximately 58 minutes elapsed between the robbery in Hastings and
the one in Charlotte. According to King, the drive time between the Hastings store and the
Charlotte store was only 42 minutes, although he had to take a bypass that may have added a few
minutes. The evidence was sufficient to establish beyond a reasonable doubt that defendant was
the perpetrator of the robbery in Charlotte.
Defendant next argues that she was denied the effective assistance of counsel because
trial counsel failed to include two alibi witnesses in the notice of alibi, which resulted in
limitations on their testimony.1
Because defendant did not move for an evidentiary hearing pursuant to People v Ginther,
390 Mich 436; 212 NW2d 922 (1973), this Court’s review is limited to errors apparent on the
record. People v Williams, 223 Mich App 409, 414; 566 NW2d 649 (1997). To establish
1
Defendant acknowledges that the trial court correctly ruled that the witnesses, defendant’s son
and his girlfriend, could not be used as alibi witnesses for the defense. MCL 768.21.
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ineffective assistance of counsel, a defendant must show that counsel’s representation “fell
below an objective standard of reasonableness . . . .” People v Toma, 462 Mich 281, 302; 613
NW2d 694 (2000). Defendant must also demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different . . . .” Id.,
pp 302-303 (citations and internal quotation marks omitted).
Defendant has not met her burden of establishing the factual predicate to support her
claim of ineffective assistance of counsel. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
The record suggests that the defense wanted to ask defendant’s son and his girlfriend about
defendant’s whereabouts on the morning of December 6, 2006, the date of the robbery in
Kalamazoo. The substance of the testimony is not apparent from the record. Defense counsel’s
vague representations about the son’s testimony are inadequate. Defendant has not produced any
evidence to support a conclusion that there was a reasonable probability that, but for counsel’s
failures, the result of the proceeding would have been different. Although defendant requests an
evidentiary hearing in the event the record is deemed inadequate, she did not file a proper motion
to remand in this Court and her request is not accompanied by an affidavit or offer of proof
demonstrating factual support for her claims of ineffective assistance of counsel as required by
MCR 7.211(C)(1)(a). Accordingly, a remand is not warranted.
Affirmed.
/s/ Jane M. Beckering
/s/ David H. Sawyer
/s/ Karen M. Fort Hood
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