PEOPLE OF MI V JULIE ANN GOBLE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 11, 2009
Plaintiff-Appellee,
v
No. 283889
Monroe Circuit Court
LC No. 07-036385-FH
JULIE ANN GOBLE,
Defendant-Appellant.
Before: Wilder, P.J., and Meter and Servitto, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of receiving or concealing a stolen motor
vehicle, MCL 750.535(7), and sentenced to 23 to 60 months’ imprisonment. She appeals as of
right. We affirm. This appeal has been decided without oral argument pursuant to MCR
7.214(E).
Defendant’s conviction results from her possession or concealment of a stolen pickup
truck in Monroe County during the early morning hours of September 22, 2007. Earlier, on the
evening of September 21, the owner of the truck made contact with defendant outside a
restaurant in Washtenaw County. The owner testified that he stopped because defendant
appeared to be in distress. The owner agreed to drive defendant to a mobile home park. After
arriving at the mobile home park and exiting the truck, the owner was attacked by two men, one
of whom hit him with a baseball bat. Defendant then took the keys from the owner, said “come
on, let’s go” to the two men, and left with them in the truck. After the owner made a police
report regarding the theft, state police troopers found the truck at a Travel American Truck Stop
in Monroe County. Before verifying that the truck was stolen, one of the troopers saw Jose Vigil
walking around it and observed what appeared to be fresh damage to the truck. Defendant was
observed shutting the tailgate of the truck. Defendant and Vigil were arrested after entering the
truck stop. The keys belonging to the truck were not located.
After the prosecution rested, defendant testified that the truck owner picked her up for
prostitution and that she then accompanied him to the mobile home park for drugs. She claimed
that a drug dealer known as Johnny drove her and Vigil to the truck stop after the owner loaned
his truck to Johnny in exchange for drugs, and that Johnny ran off when the police arrived.
Relying on People v Wolak, 110 Mich App 628; 313 NW2d 174 (1981), defendant argues
on appeal that the trial court erred in denying her motion for a directed verdict, which was based
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on the theory that conviction is not permitted under MCL 750.535(7) if she stole the truck. The
proper meaning of a statute constitutes a question of law that we review de novo. People v
Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006). Our review of a trial court’s denial of a
motion for a directed verdict is also de novo. People v Aldrich, 246 Mich App 101, 122; 631
NW2d 67 (2001). The evidence is viewed in a light most favorable to the prosecution to
determine if a rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. Gillis, supra at 113.
At the time this Court decided Wolak, supra, MCL 750.535(1) provided, in pertinent part,
that “[a] person who buys, receives, possesses, conceals, or aids in the concealment of stolen,
embezzled, or converted money, goods, or property knowing the money, goods, or property to be
stolen, embezzled, or converted, if the property purchased, received, possessed, or concealed
exceeds the value of $100.00, is guilty of a felony . . . ” (emphasis added). The prior version of
the statute contained similar language, but did not include the terms “possesses” or “conceals.”
In Wolak, supra at 633, this Court, relying on our Supreme Court’s construction of the
statute in People v Kyllonen, 402 Mich 135; 262 NW2d 2 (1978), held that an actual thief of
property may not be convicted under the statute. At the time Kyllonen was decided, the statute
did not contain the terms “possesses” or “conceals,” which were added by 1979 PA 11. Giving
strict construction, and upon considering the early history of the statute (which indicated an
intent to proscribe conduct by persons who help thieves dispose of stolen property), the Kyllonen
Court concluded that “[u]nder the Michigan statutory scheme, thieves are to be punished for
larceny. Persons who help thieves or others conceal stolen property are to be punished for aiding
in the concealment of stolen property.” Kyllonen, supra at 148.
In People v Hastings, 422 Mich 267, 271; 373 NW2d 533 (1985), our Supreme Court
held that the 1979 amendment “removes the basis on which People v Kyllonen concluded that
the thief could not be prosecuted under the statute.” At the time defendant committed the
charged offense in this case, the statute contained the same language that the Hastings Court
concluded allowed a thief to be prosecuted under the statute. As amended by 2006 PA 374, the
statute provides:
A person shall not buy, receive, possess, conceal, or aid in the
concealment of a stolen motor vehicle knowing, or having reason to know or
reason to believe, that the motor vehicle is stolen, embezzled, or converted. A
person who violates this subsection is guilty of a felony . . . A person who is
charged with, convicted of, or punished for a violation of this subsection shall not
be convicted of or punished for a violation of another provision of this section
arising from the purchase, receipt, possession, concealment, or aiding in the
concealment of the same motor vehicle. This subsection does not prohibit the
person from being charged, convicted, or punished under any other applicable
law. [MCL 750.535(7).]
Based on Hastings, supra, the evidence that defendant participated in the theft of the
truck did not preclude a conviction under MCL 750.535(7). Therefore, the trial court did not err
in denying defendant’s motion for a directed verdict on this ground.
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Defendant next argues that the trial court erred by denying her request for a jury
instruction, based on Wolak, supra, that she could not be convicted of the receiving or concealing
charge if the jury believed that she was involved in the theft of the truck. We review de novo
questions of law involving jury instructions. Gillis, supra at 113. Having concluded that a thief
may be convicted under MCL 750.535(7), we find no error in the trial court’s refusal to give the
requested instruction. A trial court’s duty is to instruct the jury on the applicable law. MCL
768.29; People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007).
Finally, defendant argues that the trial court’s denial of her request to have Vigil brought
from the county jail to testify as a defense witness deprived her of her constitutional rights to
present a defense and to compulsory process. Defendant claims that she preserved this issue by
requesting that Vigil be brought from jail to the trial. We disagree.
The record indicates that defense counsel requested that Vigil be brought from jail to
testify at trial, over the prosecutor’s objection that Vigil was not disclosed as a possible witness,
contrary to the trial court’s scheduling order and the prosecutor’s demand for discovery, but did
not argue that the failure to allow Vigil to testify would affect defendant’s constitutional rights.
Defense counsel asserted that he could not call Vigil as a witness until Vigil pleaded guilty to his
involvement in this case. The trial court rejected this argument, finding that Vigil could not be
called as a witness only if it was known that he would assert his Fifth Amendment privilege
against self-incrimination and, after confirming that Vigil was not listed as a defense witness and
hearing the prosecutor’s claim of prejudice, denied the request to allow Vigil to testify.
Having failed to present her constitutional claims to the trial court, defendant failed to
preserve those issues for appeal. Therefore, our review is limited to plain error affecting
defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
The right to present a defense is not absolute. As explained in People v Unger, 278 Mich
App 210, 249-250; 749 NW2d 272 (2008):
Few rights are more fundamental than that of an accused to present
evidence in his or her own defense. Chambers v Mississippi, 410 US 284, 302; 93
S Ct 1038; 35 L Ed 2d 297 (1973). “Whether rooted directly in the Due Process
Clause of the Fourteenth Amendment or in the Compulsory Process or
Confrontation clauses of the Sixth Amendment, the Constitution guarantees
criminal defendants a meaningful opportunity to present a complete defense.”
Holmes v South Carolina, 547 US 319, 324; 126 S Ct 1727; 164 L Ed 2d 503
(2006) (internal quotation marks and citations omitted). This Court has similarly
recognized that “[a] criminal defendant has a state and federal constitutional right
to present a defense.” Kurr, supra at 326 [People v Kurr, 253 Mich App 317,
326; 654 NW2d 651 (2002)].
However, an accused’s right to present evidence in his defense is not
absolute. United States v Scheffer, 523 US 303, 308; 118 S Ct 1261; 140 L Ed 2d
413 (1998); Crane v Kentucky, 476 US 683, 690; 106 S Ct 2142; 90 L Ed 2d 636
(1986). “A defendant’s interest in presenting . . . evidence may thus ‘ “bow to
accommodate other legitimate interests in the criminal trial process.” ’ ” Scheffer,
supra at 308 (citations omitted). States have been traditionally afforded the
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power under the constitution to establish and implement their own criminal trial
rules and procedures. Chambers, supra at 302-303.
Like other states, Michigan has a legitimate interest in promulgating and
implementing its own rules concerning the conduct of trials. Our state has “broad
latitude under the Constitution to establish rules excluding evidence from criminal
trials. Such rules do not abridge an accused’s right to present a defense so long as
they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to
serve.’ ” Scheffer, supra at 308, quoting Rock v Arkansas, 483 US 44, 56; 107 S
Ct 2704; 97 L Ed 2d 37 (1987).
Discovery in a criminal case is governed by MCR 6.201. People v Phillips, 468 Mich
583, 586-587; 663 NW2d 463 (2003). Pursuant to MCR 6.201(A)(1), a party, upon request,
must provide the other party with “the names and addresses of all lay and expert witnesses whom
the party may call at trial; in the alternative, a party may provide the name of the witness and
make the witness available to the other party for interview; the witness list may be amended
without leave of the court no later than 28 days before trial.” The record in the case indicates
that the prosecutor requested discovery of all witnesses whom defendant may call at trial. In
addition, the trial court entered a scheduling order that required the parties to file and exchange
witness lists before trial.
Because defendant failed to comply with discovery, the trial court had the discretion to
deny defendant’s request to permit Vigil to testify at trial. MCR 6.201(J). In deciding whether
to exclude evidence because of a discovery violation, “the trial court must balance the interests
of the courts, the public, and the parties, in light of all the relevant circumstances, including the
reasons for noncompliance.” People v Banks, 249 Mich App 247, 252; 642 NW2d 351 (2002).
In addition, the complaining party must demonstrate prejudice. People v Greenfield (On
Reconsideration), 271 Mich App 442, 456 n 10; 722 NW2d 254 (2006).
Here, defendant has not demonstrated any abuse of discretion by the trial court in
denying the untimely request to permit Vigil to testify. Indeed, defendant does not even address
the trial court’s discretionary authority to remedy a discovery violation. Furthermore, under
MRE 103(a)(2), error may not be predicated on a ruling that excludes evidence unless “the
substance of the evidence was made known to the court by offer or was apparent from the
context within which questions were asked.” Here, the substance of Vigil’s proposed testimony
is not apparent from the record and defendant did not make an offer of proof with regard to his
testimony.
Considering that a defendant’s right to present a defense does not excuse compliance
with established rules and procedures, Unger, supra at 250, defendant’s failure to demonstrate
any abuse of discretion in the manner in which the trial court resolved the discovery violation,
and defendant’s ability to present a defense through her own testimony at trial, we conclude that
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reversal is not warranted. Defendant has failed to show a plain constitutional error affecting her
substantial rights. Carines, supra at 763.1
Affirmed.
/s/ Kurtis T. Wilder
/s/ Patrick M. Meter
/s/ Deborah A. Servitto
1
We also note that, absent a valid waiver, the Fifth Amendment privilege against selfincrimination exists until after sentence is imposed and the judgment of conviction becomes
final. United States v Rivas-Macias, 537 F3d 1271, 1277 (CA 10, 2008), cert den ___ US ___;
129 S Ct 1371; ___ L Ed 2d ___ (February 23, 2009); see also People v St Onge, 63 Mich App
16, 18; 233 NW2d 874 (1975) (right still applies when appeal is pending after a conviction on
the charge to which incriminating testimony would relate). Defense counsel may not knowingly
call a witness who would assert the privilege. People v Giacalone, 399 Mich 642, 645; 250
NW2d 492 (1977). The record indicates that Vigil was not sentenced until after defendant’s trial
concluded. Thus, although not dispositive of our resolution of the constitutional issue raised by
defendant, it appears that the concern expressed by defense counsel at trial when attempting to
justify his failure to timely list Vigil as a possible witness still existed, because Vigil had not yet
been sentenced. Defense counsel did not indicate, nor does the record disclose, that Vigil was
willing to waive his Fifth Amendment privilege against self-incrimination in order to testify.
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