Ineffective assistance of counsel; Failure to raise a meritless objection; Relevance; MRE 403; Lay witness opinion testimony; MRE 701; An officer’s description of video evidence; People v Fomby; People v Perkins; Sentencing; Presumptive proportionality of a within-guidelines sentence; People v Posey

The court held that defendant-Larson’s trial counsel was not ineffective for failing to object to an eyewitness’s testimony or a deputy’s narration of the gas station surveillance video depicting the incident giving rise to the case. It also held that Larson failed to rebut the presumption that his within-guidelines sentence was proportionate. He was convicted of two counts of CSC IV and sentenced as a fourth habitual offender to concurrent terms of 46 months (3 years and 10 months) to 15 years. He first argued that his trial counsel was ineffective for failing to object to the testimony of the gas station cashier about Larson’s comments before the victim (HA) entered the gas station. While he stressed “that he made the comments at issue before HA was inside the store” he did not cite any “authority for the proposition that statements a defendant makes before a victim enters the scene of the crime necessarily implicate MRE 404(b). In this case, the challenged evidence fell within the context of the crimes at issue. Therefore, neither the substantive nor notice requirements of MRE 404(b) were implicated.” As to relevance, evidence “of a defendant’s behavior and statements immediately before the actus reus is routinely introduced in trials involving questions of intent or purpose. This evidence also clearly implicated several of the uses permitted under MRE 404(b)(2): ‘motive, . . . intent, . . . absence of mistake, or lack of accident.’” The court also held that “the danger of admitting the testimony did not substantially outweigh the probative value. The testimony was not about some unconnected wrong that Larson had committed earlier in his life, but rather what [he] was doing and saying minutes before the criminal conduct at issue. Any resulting prejudice was therefore not ‘unfair’ for purposes of MRE 403, and in any event was countered by ample probative value.” Any objection would have had no merit. As to the deputy’s narration, as in Perkins, there was sufficient other evidence to support Larson’s convictions. Both HA and her friend “testified to events amounting to an unwanted touching of HA and . . . the cashier provided additional context.” Affirmed.