Opinion
353585
03-23-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee/Cross-Appellant, v. DEVAUN CORDELL BARR, Defendant-Appellant/Cross-Appellee.
UNPUBLISHED
Wayne Circuit Court LC No. 19-007427-01-FC
Before: Murray, P.J., and Riordan and Yates, JJ.
PER CURIAM
Defendant appeals as of right his jury trial convictions of two counts of conspiracy to commit armed robbery, MCL 750.157a, MCL 750.529; armed robbery, MCL 750.529; and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.Defendant was sentenced to 22 to 40 years' imprisonment for each of the conspiracy to commit armed robbery convictions and the armed robbery conviction, and to two years' imprisonment for the felony-firearm conviction. The prosecutor has filed a cross-appeal challenging an order granting in part defendant's motion for resentencing. We affirm defendant's convictions, reverse the order granting in part defendant's motion for resentencing, and remand the case to the trial court with instructions to articulate a basis for its out-of-guidelines sentencing decisions or to resentence defendant.
Defendant was also charged with first-degree felony murder, MCL 750.316(1)(b), an additional count of armed robbery, and an additional count of felony-firearm, but the jury found him not guilty with respect to those charges (as well as not guilty of second-degree murder, MCL 750.317, as a lesser included offense of first-degree felony murder).
I. FACTS
This case arises out of two armed robberies that occurred on different dates in December 2018, both taking place outside a house located on Wisconsin Street in Detroit. The first armed robbery occurred on December 17, 2018, and the victim was Joel Booth. With respect to the Booth robbery, defendant was convicted of conspiracy to commit armed robbery, armed robbery, and felony-firearm. The second armed robbery occurred on December 23, 2018, and the victim was Frans Younan, who was killed during the robbery. With respect to the Younan robbery, defendant was convicted of conspiracy to commit armed robbery, but was acquitted of first-degree felony murder, MCL 750.316(1)(b) (as well as the lesser included offense of second-degree murder, MCL 750.317), armed robbery, and felony-firearm. Evidence at trial indicated that the robberies were part of a so-called "jugging" robbery scheme, whereby defendant would use a female accomplice to communicate with a man on a dating app and lure him to a location where defendant and his accomplices would rob him. Defendant's involvement in the charged offenses was established largely through the testimony of a female accomplice, Samaria Dorsey, as well as cellular-telephone exhibits and testimony corroborating Dorsey's testimony regarding defendant's location in the vicinity of the crime scene at relevant times.
After he was convicted and sentenced in the manner described earlier, defendant filed this appeal. He then filed in the trial court a motion for a new trial or for an evidentiary hearing. Defendant argued that his trial counsel was ineffective for failing to challenge the admission of cellular-telephone exhibits and testimony. The trial court denied the motion. Defendant also filed in the trial court a motion for resentencing. Defendant challenged the assessments of points for various offense variables and argued that defense counsel at sentencing was ineffective for failing to object to some of the assessments. The trial court granted resentencing to defendant with respect to the conviction for conspiracy to commit armed robbery involving Younan. The trial court concluded that there were errors in the assessments of points for offense variable (OV) 1 and OV 3 that affected defendant's guidelines range for that conviction. The trial court rejected defendant's challenges to the assessments of points for various other offense variables. The prosecutor filed a cross-appeal challenging the order granting in part defendant's motion for resentencing.
Defendant filed in this Court a motion to remand the case to the trial court for an evidentiary hearing with respect to some of the issues that he raised in his brief on appeal. This Court denied defendant's motion to remand "for failure to persuade the Court of the necessity of a remand at this time. Denial of remand is without prejudice to a case call panel of this Court determining that remand is necessary once the case is submitted on a session calendar." People v Barr, unpublished order of the Court of Appeals, entered July 22, 2022 (Docket No. 5353585).
II. SUFFICIENCY OF THE EVIDENCE
Defendant first argues on appeal that the evidence presented at trial was insufficient to support his conviction for conspiracy to commit armed robbery with respect to Younan. Defendant's argument lacks merit.
Unless stated otherwise, all appellate arguments of defendant to which we refer are from his principal brief on appeal that was prepared by his appellate counsel. We will specifically indicate when we are referring to an argument raised in defendant's Standard 4 brief on appeal.
A defendant's argument regarding the sufficiency of the evidence is reviewed de novo. People v Kanaan, 278 Mich.App. 594, 618; 751 N.W.2d 57 (2008). "When reviewing a defendant's challenge to the sufficiency of the evidence, [this Court] review[s] the evidence in a light most favorable to the prosecutor to determine whether any trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt." People v Williams, 294 Mich.App. 461, 471; 811 N.W.2d 88 (2011) (quotation marks and citation omitted). Direct evidence of guilt is not required. Id. "Rather, circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime." Id. (quotation marks, brackets, and citation omitted). "This Court will not interfere with the trier of fact's role of determining the weight of the evidence or the credibility of witnesses." Kanaan, 278 Mich.App. at 619. "All conflicts in the evidence must be resolved in favor of the prosecution." Id.
MCL 750.157a provides, "Any person who conspires together with 1 or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy . . . ." "A criminal conspiracy is a partnership in criminal purposes, under which two or more individuals voluntarily agree to effectuate the commission of a criminal offense." People v Jackson, 292 Mich.App. 583, 588; 808 N.W.2d 541 (2011). "Conspiracy is a specific-intent crime, because it requires both the intent to combine with others and the intent to accomplish the illegal objective." People v Mass, 464 Mich. 615, 629; 628 N.W.2d 540 (2001). "The gist of conspiracy lies in the illegal agreement; once the agreement is formed, the crime is complete." People v Seewald, 499 Mich. 111, 117; 879 N.W.2d 237 (2016) (quotation marks and citations omitted). No requirement exists to prove that an overt act was taken in furtherance of the conspiracy or that the purpose of the illegal agreement was accomplished. Id. "Direct proof of a conspiracy is not required; rather, proof may be derived from the circumstances, acts, and conduct of the parties." Jackson, 292 Mich.App. at 588 (quotation marks and citation omitted). Also, although an illegal agreement with at least one other person is required to support a conspiracy conviction, it is not necessary for a defendant's coconspirator(s) to be convicted, charged, or specifically identified for the defendant to be convicted of conspiracy. People v Williams, 240 Mich.App. 316, 325-327; 614 N.W.2d 647 (2000).
Defendant argues that there was insufficient evidence that he was part of an illegal agreement to commit an armed robbery of Younan. We disagree.
On December 17, 2018, defendant and others committed a so-called "jugging" robbery of Booth. As part of a continuing "jugging" scheme that defendant had been pursuing for months, defendant directed Dorsey to lure Booth, whom Dorsey had met through a dating app, to the house on Wisconsin Street; defendant had a key to the house at that address because he was helping his stepfather fix up the house. Once Dorsey and Booth arrived outside the house on Wisconsin Street, defendant and his cohorts ambushed and robbed Booth. Dorsey testified that defendant's cohorts included two individuals: one was referred to as Bro, and the other as Cuz, Cousin, or Marlon. Later that night, Dorsey heard defendant and his cohorts planning to commit another jugging robbery the following weekend. The following weekend included Sunday, December 23, 2018.
On December 23, 2018, defendant sent text messages to Dorsey indicating that defendant wished to commit another jugging robbery. Later that evening, defendant had Dorsey drive him to Wisconsin Street, and they parked behind a vehicle later identified as Younan's vehicle. Defendant exited the car clutching his pocket as if he had a firearm, and he had the hood from his jacket pulled into a tight circle over his face. As defendant walked away, Dorsey remained in the car. A few minutes later, Dorsey heard one or two gunshots, and defendant walked quickly back to Dorsey's car, got in the car, and told her to drive away. As they drove away, defendant told Dorsey that someone had reached for his gun and that it went off. Defendant told Dorsey not to tell anyone about these events, and he later discussed with Dorsey a plan to move away immediately. He again told her to keep quiet, and he indicated that a homicide may have occurred.
Younan died from a gunshot wound. His dead body was found outside the house on Wisconsin Street, the same location where defendant and his cohorts had robbed Booth six days earlier. Moreover, the cellular telephones of defendant, Dorsey, and Younan were located in the area of the crime scene at the same time when the relevant events occurred on December 23, 2018. Viewed in its entirety, the evidence at trial was sufficient to support a reasonable inference that defendant formed an illegal agreement with others to commit the armed robbery of Younan.
Defendant alludes to the fact that Chauntail Credit, a woman whom Younan had met through a dating app, testified that she did not know defendant. Defendant suggests that Credit was the woman who lured Younan to the crime scene and that her testimony denying that she knew defendant precluded a jury from finding that defendant was involved in the conspiracy. But the evidence at trial did not require the jury to find that Credit was part of the conspiracy, and in any event, the jury was not required to believe Credit's testimony that she did not know defendant. See People v Baskerville, 333 Mich.App. 276, 283-284; 963 N.W.2d 620 (2020) ("A jury is free to believe or disbelieve, in whole or in part, any of the evidence presented. The jury may choose to believe part of a witness's testimony and disbelieve another part of the same witness's testimony.") (quotation marks, brackets, and citations omitted). Moreover, even if Credit was part of the conspiracy and did not know defendant, those facts would not lead to the conclusion that there was insufficient evidence to support defendant's conviction. It is well established that it is not necessary for a conspirator to know all of the other conspirators or to participate in all of the objects of the conspiracy. People v Hunter, 466 Mich. 1, 7; 643 N.W.2d 218 (2002). As explained, there was sufficient evidence supporting a reasonable inference that defendant was part of the conspiracy.
III. OTHER-ACTS EVIDENCE
Defendant next presents arguments challenging the admission of other-acts evidence at trial. Defendant further argues that defense counsel was ineffective for failing to object on the grounds that defendant asserts on appeal. Defendant's arguments are unavailing.
"To preserve an evidentiary issue for review, a party opposing the admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal." People v Thorpe, 504 Mich. 230, 252; 934 N.W.2d 693 (2019), citing MRE 103(a)(1). The evidentiary issue here is unpreserved because defendant did not object below on the same grounds that he asserts on appeal. On January 22, 2020, the prosecution filed a notice of intent to introduce other-acts evidence. On January 31, 2020, a hearing was held on the matter. Defense counsel did not make a substantive argument challenging the admissibility of the other-acts evidence. Defense counsel's sole argument was that the notice of the other-acts evidence was untimely because it was provided after two trial dates that had been adjourned for unrelated reasons. On appeal, defendant makes a different argument about timeliness; he argues that the notice was untimely because it was provided fewer than 14 days before the actual trial date of February 3, 2020, not that the notice was untimely because it was provided after the adjourned trial dates. Moreover, defense counsel did not object at trial to the admissibility of the other-acts evidence. Defendant concedes as much on appeal. Therefore, because defendant did not object below to the admission of the other-acts evidence on the same grounds that he asserts on appeal, the issue is unpreserved.
When defendant filed his principal brief on appeal, the transcript of the January 31, 2020 hearing had not yet been provided because two stenographer certificates had indicated that there was no record of proceedings on that date. However, an amended stenographer certificate was later filed, and the transcript of the January 31, 2020 hearing was provided on May 13, 2022. Defendant says a remand is required to expand the record regarding whether a hearing was held on January 31, 2020, but because the transcript of that hearing has now been provided, no remand is required.
To preserve a claim of ineffective assistance of counsel, a defendant must raise the issue in a motion for a new trial or a Ginther hearing filed in the trial court, People v Heft, 299 Mich.App. 69, 80; 829 N.W.2d 266 (2012), or in a motion to remand for a Ginther hearing filed in this Court, People v Abcumby-Blair, 335 Mich.App. 210, 227; 966 N.W.2d 437 (2020). Although defendant filed a motion for a new trial below, he did not raise the claim of ineffective assistance of counsel that he asserts in the present issue. But defendant raised this ineffective-assistance claim in his motion to remand for a Ginther hearing filed in this Court, so the issue is preserved. This Court denied defendant's motion to remand, People v Barr, unpublished order of the Court of Appeals, entered July 22, 2022 (Docket No. 5353585), and thus no Ginther hearing was held. Hence, this Court's review is limited to the existing record. Abcumby-Blair, 335 Mich.App. at 227.
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
Because the evidentiary issue is unpreserved, this Court's review is for plain error affecting substantial rights. Thorpe, 504 Mich. at 252, citing People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). Under this standard, a defendant must show that an error occurred, that it was clear or obvious, and that it caused prejudice, i.e., that the error affected the outcome of the proceedings. Carines, 460 Mich. at 763. Reversal is proper only if the defendant is innocent or "the error seriously affected the fairness, integrity, or public reputation of the proceedings." Thorpe, 504 Mich. at 252-253, citing Carines, 460 Mich. at 763-764.
Whether a defendant was denied the effective assistance of counsel presents a mixed question of fact and constitutional law. Heft, 299 Mich.App. at 80. Findings of fact are reviewed for clear error, and questions of law are reviewed de novo. Id.
Initially, in his argument on this issue in his principal brief on appeal, defendant makes prefatory comments suggesting that his appellate counsel has had difficulty understanding the procedural history pertaining to this issue and that there is a perceived lack of clarity regarding the entirety of the other-acts evidence that the prosecutor was seeking to introduce. However, defendant fails to articulate a legal argument that would entitle him to relief on this basis or to cite any relevant authority. It is not this Court's role to make defendant's argument for him. People v Bass, 317 Mich.App. 241, 276; 893 N.W.2d 140 (2016). An appellant may not merely "announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position." Id. (quotation marks and citations omitted). "An appellant's failure to properly address the merits of his assertion of error constitutes abandonment of the issue." People v Harris, 261 Mich.App. 44, 50; 680 N.W.2d 17 (2004).
In any event, there is adequate clarity in the record regarding the other-acts evidence that the prosecutor was seeking to introduce. The prosecutor's notice of intent to file other-acts evidence explained that the other-acts evidence consisted of text messages extracted from a cellular telephone seized from defendant's home. The notice listed five items or groups of text-message excerpts and provided dates and quotations of the text messages at issue. The contents of those text messages were admitted into evidence as part of the prosecutor's Exhibits 76 and 77 at trial during the prosecutor's direct examination of Detroit Police Detective Jelani Dew, the officer-in-charge of this case, who testified about the text messages. Also, those two trial exhibits are appended to defendant's brief on appeal as Appendices G and H respectively. The record therefore provides adequate clarity to address this issue. Defendant's assertion that a remand is required to expand the record thus lacks merit.
In his principal brief on appeal, defendant asserts that there is a lack of clarity regarding the propriety or sufficiency of the search warrant pursuant to which defendant's cellular telephones were recovered and searched. However, defendant failed to include any issue about the search warrant in his statement of questions presented and has thus waived any such issue on appeal. People v Fonville, 291 Mich.App. 363, 383; 804 N.W.2d 878 (2011). Defendant has also abandoned any argument regarding the search warrant because he cites no relevant authority and provides no legal argument that could be reviewed. Bass, 317 Mich.App. at 276; Harris, 261 Mich.App. at 50.
Next, defendant asserts in his principal brief on appeal that the notice regarding the other-acts evidence was untimely because it was provided 12 days before trial rather than 14 days before trial as required by MRE 404(b)(2). Defendant makes a similar argument in his Standard 4 brief. Defendant is not entitled to relief on the basis of the prosecutor's untimely provision of the notice.
MRE 404(b)(2) requires the prosecutor to "provide written notice [of other-acts evidence] at least 14 days in advance of trial, or orally on the record later if the court excuses pretrial notice on good cause shown . . . ." Defendant is correct that the prosecutor provided the notice 12 days before trial instead of 14 days before trial. But defendant has not established that the untimely provision of notice entitles him to relief under the plain-error standard. As will be explained later, the other-acts evidence was admissible. Moreover, defendant has not explained how he would have reacted differently to the other-acts evidence if timely notice had been provided. That is, he does not explain how his defense would have differed if he had received two additional days of notice, i.e., 14 days of notice rather than 12 days of notice. Hence, no basis exists to conclude that the untimely provision of notice had any effect on the lower court proceedings. See People v Hawkins, 245 Mich.App. 439, 455-456; 628 N.W.2d 105 (2001) (holding that the prosecutor's failure to provide notice of other-acts evidence did not require reversal under the plain-error standard because the other-acts evidence was admissible and the defendant did not suggest how he would have reacted differently to the other-acts evidence if the prosecutor had provided notice).
Next, in both his principal brief on appeal and his Standard 4 brief, defendant argues that the other-acts evidence was inadmissible. Defendant's arguments are unavailing.
MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
Under MRE 404(b)(1), evidence of other crimes, wrongs, or acts is inadmissible to prove that the defendant had a propensity to commit such acts, but this type of evidence may be admissible for other purposes. People v Denson, 500 Mich. 385, 397-398; 902 N.W.2d 306 (2017). Other-acts evidence may be admissible if (1) the evidence is offered for a proper purpose, (2) the evidence is relevant, and (3) the probative value of the evidence is not substantially outweighed by unfair prejudice. Id. at 398, citing People v VanderVliet, 444 Mich. 52, 55; 508 N.W.2d 114 (1993), amended 445 Mich. 1205 (1994). The trial court may, upon request, provide a limiting instruction to the jury. Denson, 500 Mich. at 398, citing VanderVliet, 444 Mich. at 55. "MRE 404(b) is a rule of inclusion, meaning it permits the admission of any logically relevant evidence 'even if it also reflects on a defendant's character,' so long as the evidence is not 'relevant solely to the defendant's character or criminal propensity.'" People v Spaulding, 332 Mich.App. 638, 649; 957 N.W.2d 843 (2020), quoting People v Mardlin, 487 Mich. 609, 615-616; 790 N.W.2d 607 (2010).
"Under the first prong of the VanderVliet test, the question is whether the prosecution has articulated a proper noncharacter purpose for admission of the other-acts evidence." Denson, 500 Mich. at 398. The list of proper purposes set forth in MRE 404(b)(1) is not exhaustive. Mardlin, 487 Mich. at 615-616. In this case, the prosecutor articulated proper noncharacter purposes for admission of the other-acts evidence. The prosecutor's notice of intent to introduce other-acts evidence listed the purposes of showing defendant's intent and his plan or system in doing an act. These are both proper purposes listed in MRE 404(b)(1). The prosecutor also identified a proper noncharacter purpose of showing defendant's consciousness of guilt as reflected in false exculpatory statements he made to the police.
"Under the second prong of the VanderVliet test, logical relevance is determined by the application of MRE 401 and MRE 402." Denson, 500 Mich. at 400 (footnotes omitted). Other-acts evidence is relevant if it is material and has probative value. Id. at 401. "Materiality is the requirement that the other-acts evidence be related to any fact that is of consequence to the action." Id. (quotation marks and citations omitted). "Evidence is probative if it tends 'to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'" Id. at 401-402, quoting MRE 401. If the prosecutor's theory of relevance is based on the similarity between the other act and the charged offense, a striking similarity is required in order for the evidence to be admissible. Denson, 500 Mich. at 403.
MRE 401 provides," 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 402 states: "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court. Evidence which is not relevant is not admissible."
The other-acts evidence was material. "The prosecution bears the burden of proving every element of a charged offense beyond a reasonable doubt." Id. at 401. "It is well established in Michigan that all elements of a criminal offense are 'in issue' when a defendant enters a plea of not guilty." Spaulding, 332 Mich.App. at 650 (quotation marks and citation omitted). Because defendant pleaded not guilty, defendant's intent was material in establishing the mens rea elements of the charged offenses. See People v McGhee, 268 Mich.App. 600, 613; 709 N.W.2d 595 (2005) ("Other-acts evidence may . . . be used to negate innocent intent."). The existence of a common scheme, plan, or system also was material in establishing the actus reus of the charged offenses. People v Engelman, 434 Mich. 204, 221-222; 453 N.W.2d 656 (1990); see also id. at 221 n 24 ("Evidence of a plan may . . . be admissible to show the doing of the criminal act.") (quotation marks, brackets, and citation omitted). The making of false exculpatory statements indicating consciousness of guilt was material. People v Seals, 285 Mich.App. 1, 5; 776 N.W.2d 314 (2009); People v Dandron, 70 Mich.App. 439, 442; 245 N.W.2d 782 (1976).
The other-acts evidence had probative value under the prosecutor's theories. Defendant wrote text messages reflecting that, on occasions other than the two incidents giving rise to the instant offenses, defendant pursued a common scheme or plan to use women he was dating by having a woman meet a man on a dating app and lure the man to a location where defendant and his cohorts would rob the man. In text messages with one woman, defendant indicated that "[w]e can get money on some bonnie [and] clyde sh**" whereby the woman would "talk[] to somebody [and] get them geeked" by saying that the woman would engage in "p2p [pay to play]," and defendant indicated that he and others would "rob the[ir] b**** a**." Defendant instructed the woman, "You my woman and what I say go." He told her to "[g]et on pof [Plenty of Fish, a dating app]" and to "act friendly." Defendant told the woman to "get on that sh**" and that defendant and "[B]ro will handle the rest." Defendant wrote, "Lets [sic] get some money," and the woman asked, "From were [sic]??" Defendant responded, "Pof [Plenty of Fish] we can finesse some hams easy," and he then wrote, "Work yo magic girl." In a text message to a woman with a different telephone number, defendant instructed the woman to "try getting a lame n**** [and] me [and] my Cuz can get his a**."
The other-acts evidence thus indicates that, on occasions other than the charged offenses, defendant pursued a common scheme or plan of committing "jugging" robberies strikingly similar to that used in the charged offenses as reflected in the testimony of Dorsey and Booth. This evidence of a common scheme or plan tended to make it more likely that defendant committed the charged offenses. Engelman, 434 Mich. at 221-222; see also id. at 221 n 24 ("Evidence of a plan may . . . be admissible to show the doing of the criminal act.") (quotation marks, brackets, and citation omitted).
In his principal brief on appeal, defendant asserts that the only similarity between the other-acts evidence and the charged offenses is that he "likes to text women about money." This assertion is, to put it mildly, a gross understatement of what the other-acts evidence shows, as reflected in the previously quoted excerpts of the text messages.
The other-acts evidence also was probative of defendant's intent in committing the charged offenses. It is more likely that he had a guilty mens rea given the existence of an intentional jugging scheme reflected in the other-acts evidence. In addition, the other-acts evidence was probative because it indicated that defendant made false exculpatory statements when he told the police that he did not have a telephone number, that he did not use dating apps, and that he was not involved with women other than the mother of his child. These false exculpatory statements reflected consciousness of guilt. Seals, 285 Mich.App. at 5; Dandron, 70 Mich.App. at 442.
The DVD recording of defendant's interview with the police, which was admitted as an exhibit at trial and played for the jury, and which has been provided to this Court, reflects that defendant made these statements to the police.
The third VanderVliet prong pertains to whether the probative value of the other-acts evidence was substantially outweighed by the danger of unfair prejudice. Denson, 500 Mich. at 398, citing VanderVliet, 444 Mich. at 55. "Any relevant evidence will intrinsically be prejudicial to some extent; 'unfair' prejudice exists when extraneous circumstances like shock, jury bias, sympathy, or anger pose a risk that the jury will give the evidence weight disproportionate to its rational, probative value." Spaulding, 332 Mich.App. at 650. "Whether other-acts evidence is [substantially] more prejudicial than probative is best left to the contemporaneous assessment of the trial court." McGhee, 268 Mich.App. at 614, citing People v Sabin (After Remand), 463 Mich. 43, 71; 614 N.W.2d 888 (2000). "A trial court's decision on a close evidentiary question ordinarily cannot be an abuse of discretion." McGhee, 268 Mich.App. at 614, citing Sabin, 463 Mich. at 67.
As explained, the other-acts evidence had probative value in multiple respects, including in establishing the mens rea and actus reus of the charged offenses. The probative value of this evidence was significant in corroborating the testimony of Dorsey, given that her testimony was subjected to extensive credibility challenges. Although the other-acts evidence spoke to defendant's character in addition to the proper purposes for which it was admitted, this did not require exclusion of the evidence. See Spaulding, 332 Mich.App. at 652 ("The evidence of defendant's prior conduct does speak about his character. However, because it was introduced for a proper purpose and was relevant, the fact that it could also give rise to inferences about defendant's character does not require its exclusion."). The other-acts evidence was logically relevant for proper purposes, and no basis exists to conclude "that the jury would have found it sufficiently shocking to decide the case on the basis of improper considerations." Id. Hence, this Court does not "find any danger that the evidence unfairly prejudiced defendant, much less that its probative value would be substantially outweighed by any such danger." Id., citing MRE 403 (emphasis omitted).
It is also notable that the trial court provided a limiting instruction to the jury. The trial court instructed the jury as follows:
You've heard evidence that was introduced to show that the defendant committed improper acts for which he is not on trial. The text conversations with other women is an example.
If you believe this evidence, you must be very careful only to consider it for certain purposes. You may only think about whether this evidence tends to show that the defendant used a plan, system or characteristic scheme that he's used before or since, or for the defendant's intent, or that the defendant made false exculpatory statements to the police, and/or that the defendant [sic] corroborated Samaria Dorsey's testimony.
You must not consider this evidence for any other purpose. For example, you must not decide that it shows that the defendant is a bad person or that he's likely to commit crimes. You must not convict the defendant, here, because you think he is guilty of other bad acts or bad conduct.
"It is well established that jurors are presumed to follow their instructions." People v Graves, 458 Mich. 476, 486; 581 N.W.2d 229 (1998). The limiting instruction thus further reinforces the conclusion that defendant was not unfairly prejudiced by the admission of the other-acts evidence.
Finally, given that the other-acts evidence was properly admitted, defendant's contention that defense counsel was ineffective for failing to object to the admission of this evidence fails. "To prove that his defense counsel was not effective, the defendant must show that (1) defense counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that counsel's deficient performance prejudiced the defendant." People v Lane, 308 Mich.App. 38, 68; 862 N.W.2d 446 (2014). "Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise." People v Head, 323 Mich.App. 526, 539; 917 N.W.2d 752 (2018) (quotation marks, brackets, and citation omitted). "In examining whether defense counsel's performance fell below an objective standard of reasonableness, a defendant must overcome the strong presumption that counsel's performance was born from a sound trial strategy." People v Trakhtenberg, 493 Mich. 38, 52; 826 N.W.2d 136 (2012). To establish prejudice, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." People v Randolph, 502 Mich. 1, 9; 917 N.W.2d 249 (2018) (quotation marks and citation omitted). A "defendant has the burden of establishing the factual predicate for his claim of ineffective assistance of counsel." People v Hoag, 460 Mich. 1, 6; 594 N.W.2d 57 (1999).
As explained, the other-acts evidence was properly admitted at trial. Defense counsel was not ineffective for failing to raise a futile objection. See People v Ericksen, 288 Mich.App. 192, 201; 793 N.W.2d 120 (2010) ("Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel.").
IV. CELLULAR TELEPHONE
Defendant next presents a series of appellate arguments with respect to the admission into evidence of cellular-telephone exhibits and testimony. Defendant asserts evidentiary error, prosecutorial misconduct, and ineffective assistance of counsel. Defendant's arguments are unavailing.
We use the phrase "prosecutorial misconduct" as a term of art, synonymous with "prosecutorial error," and not as a suggestion that the prosecutor engaged in intentional misconduct. See People v Cooper, 309 Mich.App. 74, 87-88; 867 N.W.2d 452 (2015).
"To preserve an evidentiary issue for review, a party opposing the admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal." Thorpe, 504 Mich. at 252, citing MRE 103(a)(1). Defendant did not object at trial to the admission of Detroit Police Officer Melanie Weathers's expert testimony or to her expert qualifications, nor did defendant object to the cellular-telephone exhibits and specify the same grounds for objection that he asserts on appeal. With respect to most of the cellular-telephone exhibits, defense counsel did not object at all; with respect to the remaining exhibits, defense counsel raised vague objections but did not specify the same grounds for objection that he asserts on appeal. Hence, the evidentiary issue is unpreserved.
Indeed, regarding the admission into evidence of most of the cellular-telephone exhibits, defense counsel expressly stated that he had no objection, and defendant thereby waived any claim of error with respect to those exhibits, meaning that there is no evidentiary error to review in regard to those exhibits. See People v Kowalski, 489 Mich. 488, 503-505; 803 N.W.2d 200 (2011). But for the sake of thoroughness, we will address the evidentiary issue as if it was merely unpreserved, as opposed to waived, by considering it under the plain-error standard that applies to alleged errors that are merely unpreserved, rather than waived, as set forth later.
"In order to preserve an issue of prosecutorial misconduct, a defendant must contemporaneously object and request a curative instruction." People v Bennett, 290 Mich.App. 465, 475; 802 N.W.2d 627 (2010). Defendant did not contemporaneously object and request a curative instruction with respect to the portion of the prosecutor's closing argument that is the subject of defendant's appellate argument on this issue. Therefore, the issue of prosecutorial misconduct is unpreserved.
To preserve a claim of ineffective assistance of counsel, a defendant must raise the issue in a motion for a new trial or a Ginther hearing filed in the trial court, Heft, 299 Mich.App. at 80, or in a motion to remand for a Ginther hearing filed in this Court, Abcumby-Blair, 335 Mich.App. at 227. Defendant raised his ineffective-assistance claims for this issue in his motion for a new trial below and in his motion to remand for a Ginther hearing filed in this Court, so the issue is preserved. This Court denied defendant's motion to remand, People v Barr, unpublished order of the Court of Appeals, entered July 22, 2022 (Docket No. 5353585), and no Ginther hearing has been held. Hence, this Court's review is limited to the existing record. Abcumby-Blair, 335 Mich.App. at 227.
Because the evidentiary issue is unpreserved, this Court's review is for plain error affecting substantial rights. Thorpe, 504 Mich. at 252, citing Carines, 460 Mich. at 763. Under this standard, a defendant must show that an error occurred, that it was clear or obvious, and that it caused prejudice, i.e., that the error affected the outcome of the proceedings. Carines, 460 Mich. at 763. Reversal is proper only if the defendant is innocent or the error seriously affected the fairness, integrity, or public reputation of the proceedings. Thorpe, 504 Mich. at 252-253, citing Carines, 460 Mich. at 763-764.
Review of a claim of prosecutorial misconduct requires a determination "whether the defendant was denied a fair and impartial trial. Further, allegations of prosecutorial misconduct are considered on a case-by-case basis, and the reviewing court must consider the prosecutor's remarks in context." Bennett, 290 Mich.App. at 475 (citation omitted). Because the issue of prosecutorial misconduct is unpreserved, this Court reviews the issue under the plain-error standard, id. at 475-476, which was described in the preceding paragraph. "Further, this Court cannot find error requiring reversal where a curative instruction could have alleviated any prejudicial effect." Id. at 476 (quotation marks, brackets, and citation omitted).
Whether a defendant was denied the effective assistance of counsel presents a mixed question of fact and constitutional law. Heft, 299 Mich.App. at 80. Findings of fact are reviewed for clear error, and questions of law are reviewed de novo. Id.
Defendant presents multiple arguments as part of this issue. He first argues that the trial court erred in admitting into evidence exhibits consisting of cellular-telephone records because there was no foundation for their admission into evidence. Defendant further argues that defense counsel was ineffective for failing to object on this basis. Defendant's arguments are unavailing.
Initially, defendant fails in his principal brief on appeal to identify with precision the exact cellular-telephone records that are the subject of his appellate argument. A multitude of exhibits that were admitted at trial could be viewed as constituting cellular-telephone records. Defendant fails to provide citations of the lower court record to identify the specific exhibits that he is discussing. As the appellant, defendant has the burden to identify a factual basis in the lower court record for his appellate arguments. People v Elston, 462 Mich. 751, 762; 614 N.W.2d 595 (2000); see also MCR 7.212(C)(7) ("Facts stated must be supported by specific page references to the transcript, the pleadings, or other document or paper filed with the trial court."). "Defendant may not leave it to this Court to search for a factual basis to sustain or reject his position." People v Traylor, 245 Mich.App. 460, 464; 628 N.W.2d 120 (2001) (quotation marks and citation omitted). Therefore, given defendant's failure to support this part of his argument with appropriate citations of the record, this Court need not consider his argument. People v Petri, 279 Mich.App. 407, 413; 760 N.W.2d 882 (2008).
In his reply brief on appeal, defendant says that he is challenging "the admission of all the cell phone records." It is questionable whether the deficiencies in defendant's principal brief on appeal could be considered corrected by his reply brief. See MCR 7.212(G) (stating that a reply brief must be confined to rebuttal of the arguments in the appellee's brief). In any event, defendant's reply brief still provides no citations of the lower court record to identify the specific exhibits that are the subject of his appellate argument. Therefore, even in his reply brief, defendant continues to rely on this Court to search the record for a factual basis to sustain or reject his position, which he may not do. Traylor, 245 Mich.App. at 464. This Court could thus decline to address this part of the issue. Petri, 279 Mich.App. at 413.
But even setting aside the fact that defendant has failed to properly present this part of the issue for appellate review, as well as the fact that, as explained earlier, defendant waived any error with respect to most of the cellular-telephone exhibits when his counsel stated that he had no objection, defendant has failed to establish that he is entitled to relief. Even if a clear or obvious evidentiary error occurred, defendant has not satisfied the other requirements for granting relief under the plain-error standard, nor has he demonstrated that defense counsel was ineffective for failing to object to the evidentiary error.
MRE 902 provides, in relevant part:
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
* * *
(11) Certified Records of Regularly Conducted Activity. The original or a duplicate of a record, whether domestic or foreign, of regularly conducted business activity that would be admissible under rule 803(6), if accompanied by a written declaration under oath by its custodian or other qualified person certifying that
(A) The record was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
(B)The record was kept in the course of the regularly conducted business activity; and
(C) It was the regular practice of the business activity to make the record.
A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.
MRE 803(6) provides:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * *
(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, transactions, occurrences, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with a rule promulgated by the supreme court or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
On January 9, 2020, the prosecutor filed a document titled, "Written notice pursuant to [MRE] 902(11)." The document stated: "The People have provided the phone records for (248) 506-2459 and (313) 748-8614 in discovery. The People have also provided business records certifications for both numbers. The People intend to admit portions of these phone records pursuant to [MRE] 803(6)."
At a January 10, 2020 pretrial conference, the prosecutor stated that she had filed "a notice to [defense counsel] that the phone records-I have a certified copy from the phone companies indicating that they're their business records." The prosecutor further noted that "according to Michigan Rules of Evidence, if you're gonna use them as self-authenticating records you just have to give written notice which is what I did." The trial court asked, "They are certified business records?" The prosecutor responded, "Yes." Defense counsel did not comment on this matter or express any objection.
The record thus indicates without contradiction that the prosecutor possessed a declaration or certificate of authenticity for the cellular-telephone records. As the prosecutor concedes on appeal, however, the declaration or certificate was not admitted into evidence at trial. The prosecutor says that this was a "mere oversight" on the part of the prosecutor.
It thus appears that the admission of the cellular-telephone records into evidence without the declaration or certificate of authenticity constituted a clear or obvious error, given the language of MRE 902(11). But defendant has not satisfied the third requirement of the plain-error test, i.e., that the error was prejudicial in that it affected the outcome of the lower court proceedings. Carines, 460 Mich. at 763. "An erroneous admission of hearsay evidence can be rendered harmless error where corroborated by other competent testimony." People v Hill, 257 Mich.App. 126, 140; 667 N.W.2d 78 (2003). The cellular-telephone evidence, which was used to show defendant's location at the time of the crimes, was corroborated by Dorsey's testimony regarding defendant's location and role in committing the crimes, and Dorsey's testimony was in turn corroborated by Booth's testimony with respect to the December 17, 2018 incident.
Moreover, defendant provides no basis to conclude that he is actually innocent or that the error seriously affected the fairness, integrity, or public reputation of the proceedings. Thorpe, 504 Mich. at 252-253, citing Carines, 460 Mich. at 763-764. The record indicates without contradiction that the prosecutor had possession of a declaration or certificate of authenticity and provided notice to the defense of the prosecutor's intention to introduce the cellular-telephone records into evidence. The prosecutor explains that the failure to introduce the declaration or certificate into evidence was a mere oversight. There is no basis to question that the cellular-telephone records were the actual records of the telephone companies that were kept in the course of regularly conducted business activity or that the records accurately reflected the activity of the cellular telephones on the relevant dates. In these circumstances, the error did not seriously affect the fairness, integrity, or public reputation of the proceedings. On the contrary, reversal for this type of error in these circumstances would "encourage[] litigants to abuse the judicial process and bestir[] the public to ridicule it." Carines, 460 Mich. at 773 (quotation marks and citations omitted).
Indeed, in his principal brief on appeal, defendant states, "While appellate counsel does not have trial counsel's file, presumably the prosecutor provided a certificate of authenticity to allow the records to self-authenticate, but any such certificate was not introduced as an exhibit at trial." (Emphasis added.)
Nor has defendant shown that defense counsel was ineffective for failing to object to the authentication error. "In examining whether defense counsel's performance fell below an objective standard of reasonableness, a defendant must overcome the strong presumption that counsel's performance was born from a sound trial strategy." Trakhtenberg, 493 Mich. at 52. Defense "counsel may decide, for strategic reasons, not to object to an obvious error. If counsel's strategy is reasonable, then his or her performance was not deficient." Randolph, 502 Mich. at 12 (quotation marks, brackets, and citation omitted). Defendant cannot rule out reasonable strategic bases for his counsel's failure to object to the lack of authentication. The record indicates that the prosecutor had a declaration or certificate of authenticity. Therefore, the ultimate admissibility of the cellular-telephone records was not reasonably subject to challenge. Any objection by defense counsel merely would have led to the prosecutor introducing the declaration or certificate of authenticity into evidence, thereby potentially enhancing the credibility or weight given by the jury to the inculpatory cellular-telephone records. "Because there was a plausible and legitimate strategic reason for defense counsel's decision not to object, it cannot be said that the failure to object fell below an objective standard of reasonableness under prevailing professional norms." People v McFarlane, 325 Mich.App. 507, 528; 926 N.W.2d 339 (2018). Moreover, defendant cannot demonstrate prejudice, which, in the ineffective-assistance context, consists of "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Randolph, 502 Mich. at 9 (quotation marks and citation omitted). Because an objection would merely have led to the prosecutor's introduction into evidence of the declaration or certificate of authenticity, defendant is unable to demonstrate a reasonable probability of a different outcome but for defense counsel's failure to object.
General legal principles regarding a claim of ineffective assistance of counsel are set forth earlier in this opinion. Because defendant raises ineffective-assistance claims for multiple issues on appeal, we will not repeat all of the general principles governing such a claim for each issue.
Defendant suggests that a remand is required to determine defense counsel's subjective reason for declining to object. But such a remand is unnecessary. As noted, not only does the record indicate a reasonable strategic basis for declining to object, but defendant cannot demonstrate a reasonable probability of a different outcome but for defense counsel's failure to object. Therefore, regardless of what defense counsel might testify, defendant would remain unable to establish that both prongs of his claim of ineffective assistance of counsel were satisfied.
In two footnotes, defendant makes cursory assertions that the introduction of a declaration or certificate of authenticity would have violated his constitutional right of confrontation if the declarant was not subject to cross-examination. Defendant has waived any such issue by failing to include it in his statement of questions presented. People v Fonville, 291 Mich.App. 363, 383; 804 N.W.2d 878 (2011). Also, any such argument is abandoned, given the cursory nature of defendant's assertions. Bass, 317 Mich.App. at 276; Harris, 261 Mich.App. at 50. Moreover, the declaration or certificate was not introduced into evidence; defendant's argument that this would have violated his constitutional right of confrontation is thus hypothetical and not ripe for review. See generally, People v Robar, 321 Mich.App. 106, 128; 910 N.W.2d 328 (2017) ("[T]he ripeness doctrine precludes adjudication of merely hypothetical claims.").
Even if the issue was ripe and properly presented, defendant's argument would fail. "A defendant has the right to be confronted with the witnesses against him or her." People v Chambers, 277 Mich.App. 1, 10; 742 N.W.2d 610 (2007), citing U.S. Const, Am VI, and Const 1963, art 1, § 20. "The Confrontation Clause prohibits the admission of all out-of-court testimonial statements unless the declarant was unavailable at trial and the defendant had a prior opportunity for cross-examination." Chambers, 277 Mich.App. at 10. Business records are generally admissible absent confrontation because they are not testimonial. Melendez-Diaz v Massachusetts, 557 U.S. 305, 324; 129 S.Ct. 2527; 174 L.Ed.2d 314 (2009); Crawford v Washington, 541 U.S. 36, 56; 124 S.Ct. 1354; 158 L.Ed.2d 177 (2004); see also United States v Yeley-Davis, 632 F.3d 673, 679-680 (CA 10, 2011) (holding that a cellular-telephone provider's business records and an authenticating document were not testimonial). Hence, defendant was not denied his constitutional right of confrontation. Defense counsel was not ineffective for failing to make a futile objection on this basis. Ericksen, 288 Mich.App. at 201.
"Lower federal court decisions are not binding on this Court, but may be considered on the basis of their persuasive analysis." People v Fomby, 300 Mich.App. 46, 50 n 1; 831 N.W.2d 887 (2013).
Defendant next presents arguments challenging the expert testimony of Officer Weathers. Defendant contends that Officer Weathers's testimony exceeded the scope of her expertise. Defendant notes that the trial court qualified Officer Weathers as an expert in the forensic analysis of cellular telephones. According to defendant, Officer Weathers went beyond the scope of her expertise by testifying about how cellular telephones and cell towers work and interact together. Defendant asserts that Officer Weathers was qualified only to opine about what the cellular-telephone records showed, i.e., to analyze data, not to opine on how a cellular telephone interacts with the cellular network. Defendant says that Officer Weathers lacked the qualifications to testify about how cell towers operate, the radius of a cell tower, or how connections are made to the cell tower. Defendant further argues that defense counsel was ineffective for failing to object on these grounds to Officer Weathers's testimony. Defendant's arguments lack merit.
"[T]he determination regarding the qualification of an expert and the admissibility of expert testimony is within the trial court's discretion." People v Murray, 234 Mich.App. 46, 52; 593 N.W.2d 690 (1999). MRE 702 governs the admissibility of expert testimony and provides:
If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Therefore, in accordance with MRE 702, "expert testimony must be limited to opinions falling within the scope of the witness's knowledge, skill, experience, training, or education." People v Unger, 278 Mich.App. 210, 251; 749 N.W.2d 272 (2008). "Consequently, an expert may not opine on matters outside his or her area of expertise." Id.
At the time of Officer Weathers's testimony, the trial court stated that she was qualified to testify as an expert in the forensic analysis of cellular telephones. Later, during final jury instructions, the trial court indicated that Officer Weathers was qualified as an expert in "cellular detail analysis" and "historical cellphone records analysis." Defendant suggests that Officer Weathers's testimony about how cellular telephones interact with cell towers fell outside the scope of her expertise and that her testimony should have been limited to analysis of the data in the cellular-telephone records, but defendant's argument on this point is conclusory.
Setting aside the conclusory nature of defendant's argument on this point, his argument fails for a more fundamental reason. To the extent there was any arguable deficiency in Officer Weathers's expertise, it would go to the weight of her testimony rather than its admissibility. It is true that, when "the subject of the proffered testimony is far beyond the scope of an individual's expertise-for example, where a party offers an expert in economics to testify about biochemistry-that testimony is inadmissible under MRE 702." Gilbert v DaimlerChrysler Corp, 470 Mich. 749, 789; 685 N.W.2d 391 (2004) (emphasis omitted). But otherwise, "[g]aps or weaknesses in [a witness's] expertise are a fit subject for cross-examination, and go to the weight of [the witness's] testimony, not its admissibility." People v Gambrell, 429 Mich. 401, 408; 415 N.W.2d 202 (1987). Therefore, "[t]he extent of a witness's expertise is usually for the jury to decide." Surman v Surman, 277 Mich.App. 287, 309-310; 745 N.W.2d 802 (2007), citing People v Whitfield, 425 Mich. 116, 123-124; 388 N.W.2d 206 (1986).
Officer Weathers testified that she was assigned to the Organized Crime Section of the Detroit Police Department. She described her specialty as "forensic analysis of cellular call detail records and tower mapping." Officer Weathers explained that "we will receive call detail records, or historical records, from a cell phone company, and we'll analyze them for a particular event, such as a homicide." She described her training as follows:
I have had T-Mobile training. T-Mobile is the prevalent company, here, in the metro Detroit area. I've had Excel training. Excel is the format that most of our call detail records or historical records come back to us in. I've had training in cellphone use in drug trafficking. I've also had training in PenLink and CATS. CATS is an acronym for Call Analysis Training School. I've also had training in PenLink. PenLink is the program that the Detroit Police Department utilizes, currently, to analyze the records. I've had webinar training dealing-it's basically an online training dealing specifically with cell phone usage.
Officer Weathers explained that she had previously testified in court in the field of forensic analysis of cellular call detail records and forensic cell tower mapping. She had previously been qualified as an expert 27 times.
It is thus beyond question that Officer Weathers's testimony did not go far beyond the scope of her expertise; this was not a situation akin to an expert in economics testifying about biochemistry. To the extent that there were any gaps or weaknesses in Officer Weathers's expertise, such gaps or weaknesses were a fit subject for cross-examination and went to the weight of her testimony, not its admissibility. Gambrell, 429 Mich. at 408; Surman, 277 Mich.App. at 309-310. The trial court thus did not err by admitting Officer Weathers's testimony. And defense counsel was not ineffective for failing to make a futile objection. Ericksen, 288 Mich.App. at 201.
Defendant next presents an argument challenging the reliability of Officer Weathers's testimony and exhibits that utilized what defendant refers to as a "pie wedge" methodology to show that the cellular telephones of defendant and Dorsey were located in the proximity of the crime scene. Relying on an unsworn article regarding cellular-telephone technology, defendant says that the "pie wedge" methodology falsely suggested that the cellular telephones were located within arbitrarily drawn boundary lines. Defendant further argues that defense counsel was ineffective for failing to raise an objection on this ground. Defendant's argument is unconvincing.
The article is Daniel, McInvaille, & Grabski, Digital Forensics Guide: Cell Phone Location and Tracking Forensic, Envista Forensics (2020), which defendant appended to his brief on appeal and to his motion for a new trial. The prosecutor incorrectly states that the article is not in the lower court record.
"[T]he trial court's role as gatekeeper does not require it to search for absolute truth, to admit only uncontested evidence, or to resolve genuine scientific disputes." Unger, 278 Mich.App. at 217 (quotation marks and citation omitted). Rather, the trial court's proper role is
to filter out expert evidence that is unreliable, not to admit only evidence that is unassailable. The inquiry is not into whether an expert's opinion is necessarily correct or universally accepted. The inquiry is into whether the opinion is rationally derived from a sound foundation. [Id. (quotation marks and citation omitted).]
"Disagreements pertaining to an expert witness's interpretation of the facts are relevant to the weight of that testimony and not its admissibility." Lenawee Co v Wagley, 301 Mich.App. 134, 166; 836 N.W.2d 193 (2013); see also Surman, 277 Mich.App. at 309 ("[A] trial court's doubts pertaining to credibility, or an opposing party's disagreement with an expert's opinion or interpretation of facts, present issues regarding the weight to be given the testimony, and not its admissibility.").
Defendant relies on an article setting forth the unsworn opinions of the authors of that article regarding the use of cellular-telephone technology. Even if such an unsworn article is considered, it would establish only that universal agreement does not exist regarding the use of cellular-telephone technology. Disagreements regarding Officer Weathers's opinion or interpretation of facts would go to the weight of her testimony rather than its admissibility. Lenawee Co, 301 Mich.App. at 166; Surman, 277 Mich.App. at 309. Defendant has not shown that Officer Weathers's testimony and exhibits were unreliable or inadmissible. Defense counsel was not ineffective for failing to raise a futile or meritless objection. Ericksen, 288 Mich.App. at 201.
It is also notable that defense counsel's cross-examination of Officer Weathers yielded admissions regarding the limitations of her opinions and conclusions. For example, Officer Weathers agreed that the use of cell-tower information indicates the location of a cellular telephone, not a person. Also, depending on the cellular-telephone provider, there is about a one-mile radius for a cell-tower sector (although slightly less than that for T-Mobile and slightly more for Sprint), so a person with a cellular telephone that interacts with a cell tower could be anywhere within that radius. Thus, she agreed that defendant could have been anywhere within the one-mile radius of the cell tower, or someone else could have had defendant's cellular telephone and defendant was never there. Officer Weathers agreed that there is overlapping coverage by cell towers to ensure that customers' calls are not dropped. Only one tower will interact with a cellular telephone at a particular time, but as a cellular telephone travels, the signal can move from tower to tower. In short, defense counsel effectively cross-examined Officer Weathers about the limitations of her methodology. Such cross-examination, in lieu of a futile objection to admissibility, was a reasonable strategy.
In a one-sentence assertion, defendant says that "[t]his Court should remand to the trial court to expand the record on the reliability of [Officer Weathers's] allegedly scientific testimony." But defendant fails to provide a proper offer of proof establishing any facts that need to be established beyond the existing record. As noted, the article upon which he relies is unsworn, and defendant has not provided a basis to conclude that any qualified person is willing to testify in defendant's favor on this issue. Moreover, even if defendant could produce testimony disagreeing with Officer Weathers's opinion or interpretation of the facts, this would not establish that her testimony was inadmissible and that defendant was therefore entitled to relief. Lenawee Co, 301 Mich.App. at 166; Surman, 277 Mich.App. at 309. In short, the existing record is sufficient to review defendant's appellate argument, and no remand is required.
Defendant next argues that defense counsel was ineffective for failing to consult or call a defense expert to refute Officer Weathers's conclusions. Defendant says that his "[t]rial counsel failed to challenge the prosecution expert cell phone testimony and exhibits." Defendant further says that, without consultation of an expert, defense counsel could not adequately present a defense. Defendant's argument lacks merit.
"An attorney's decision whether to retain witnesses, including expert witnesses, is a matter of trial strategy." People v Payne, 285 Mich.App. 181, 190; 774 N.W.2d 714 (2009). "Decisions regarding what evidence to present, whether to call witnesses, and how to question witnesses are presumed to be matters of trial strategy . . . ." People v Horn, 279 Mich.App. 31, 39; 755 N.W.2d 212 (2008). This Court "will not second-guess counsel on matters of trial strategy, nor [will this Court] assess counsel's competence with the benefit of hindsight." Id. Absent an indication that a witness would have testified favorably, a defendant cannot show a reasonable probability that, but for the failure to call the witness, the result of the trial would have been different. People v Carll, 322 Mich.App. 690, 703; 915 N.W.2d 387 (2018).
Defendant has not identified any expert who would have been willing and able to testify at trial. Nor has defendant specified what the testimony of such an expert would have been. Defendant's argument is thus premised on mere speculation that an expert could have provided favorable testimony, and he has thereby failed to establish the factual predicate for his claim. Hoag, 460 Mich. at 6. Defendant has not shown that defense counsel's failure to consult or call an expert was objectively unreasonable. As noted, defense counsel extensively cross-examined Officer Weathers about the limitations of her methodology and conclusions. A reasonable trial strategy may consist of cross-examination of a prosecution witness in lieu of calling a defense expert. Carll, 322 Mich.App. at 702-703; People v Cooper, 236 Mich.App. 643, 658; 601 N.W.2d 409 (1999). And given the speculative nature of defendant's argument, he has failed to establish a reasonable probability that the result of the trial would have been different but for the failure to retain or call a defense expert. Payne, 285 Mich.App. at 190.
Defendant asserts that "this Court should remand for appellate counsel to call their own expert as trial counsel should have done." But defendant has not identified any such expert or provided a proper offer of proof that would warrant a remand.
V. VOUCHING
Defendant next argues that, during closing argument, the prosecutor engaged in impermissible vouching and that defense counsel was ineffective for failing to object. Defendant's argument lacks merit.
"Generally, prosecutors are accorded great latitude regarding their arguments and conduct. They are free to argue the evidence and all reasonable inferences from the evidence as it relates to their theory of the case." People v Bahoda, 448 Mich. 261, 282; 531 N.W.2d 659 (1995) (quotation marks, brackets, and citations omitted). "[T]he prosecutor cannot vouch for the credibility of [her] witnesses to the effect that [she] has some special knowledge concerning a witness's truthfulness." Id. at 276. It is improper for a prosecutor to use the prestige of her office to inject a personal opinion that a witness is truthful. Id. at 277 n 26, 286. "However, the prosecutor may argue from the facts that a witness should be believed." Seals, 285 Mich.App. at 22 (quotation marks, brackets, and citation omitted). "The prosecutor is free to argue from the evidence and its reasonable inferences in support of a witness's credibility." Bennett, 290 Mich.App. at 478. Also, "prosecutors may use 'hard language' when it is supported by evidence and are not required to phrase arguments in the blandest of all possible terms." People v Ullah, 216 Mich.App. 669, 678; 550 N.W.2d 568 (1996).
Defendant complains about the following portion of the prosecutor's closing argument:
Now, Samaria Dorsey says [she and defendant] were together. But he said: "Oh, don't believe her, she's a liar." But guess what? T-Mobile ain't a liar, because T-Mobile's records support that, independently. And I think it was Sprint was not a liar, because their records support that.
So, you can call Samaria Dorsey a liar all you want. But there are two other sources which support what she said, in addition to the two other sources, in black and white, in front of you, because from the defendant's own mouth, through the text messages, we know that he asked her to pull up.
The prosecutor did not engage in impermissible vouching. She did not suggest that she had some special knowledge regarding a witness's truthfulness, nor did she use the prestige of her office to inject a personal opinion that a witness was truthful. Rather, in response to the defense theory that Dorsey was not a credible witness, the prosecutor noted that the cellular-telephone records corroborated Dorsey's testimony in certain respects. By stating that the telephone companies were not liars, the prosecutor was not implying any special knowledge but was merely invoking the common-sense notion that the telephone companies lacked a discernible motivation to make any misrepresentations about the location or behavior of defendant or Dorsey. The prosecutor was thus arguing from the facts rather than engaging in improper vouching. Defense counsel was not ineffective for failing to make a futile objection. Ericksen, 288 Mich.App. at 201.
But even if the prosecutor's remarks were improper, defendant cannot establish prejudice. The trial court instructed the jury that the attorneys' statements and arguments were not evidence and that the jury must decide the case solely on the basis of the evidence. These instructions would have alleviated any prejudice arising from the prosecutor's remarks because jurors are presumed to follow their instructions. Unger, 278 Mich.App. at 237.
VI. FALSE EXCULPATORY STATEMENTS AND PROSECUTOR MISCONDUCT
Defendant next presents appellate arguments regarding false exculpatory statements that he made to the police. Defendant argues that the trial court erred in its jury instruction regarding false exculpatory statements, that the prosecutor committed misconduct during closing argument when discussing false exculpatory statements, and that defense counsel was ineffective with respect to this issue. Defendant's arguments are unavailing.
"A party must object or request a given jury instruction to preserve the error for review." People v Sabin (On Second Remand), 242 Mich.App. 656, 657; 620 N.W.2d 19 (2000). Defense counsel objected to the instruction on false exculpatory statements. Therefore, the instructional issue is preserved.
"In order to preserve an issue of prosecutorial misconduct, a defendant must contemporaneously object and request a curative instruction." Bennett, 290 Mich.App. at 475. Defendant did not contemporaneously object and request a curative instruction with respect to the portion of the prosecutor's closing argument that is the subject of defendant's appellate argument on this issue. Therefore, the issue of prosecutorial misconduct is unpreserved.
To preserve a claim of ineffective assistance of counsel, a defendant must raise the issue in a motion for a new trial or a Ginther hearing filed in the trial court, Heft, 299 Mich.App. at 80, or in a motion to remand for a Ginther hearing filed in this Court, Abcumby-Blair, 335 Mich.App. at 227. Although defendant filed a motion for a new trial below, he did not raise the claim of ineffective assistance of counsel that he asserts in the present issue. But defendant raised this ineffective-assistance claim in his motion to remand for a Ginther hearing filed in this Court, so the issue is preserved. This Court denied defendant's motion to remand, People v Barr, unpublished order of the Court of Appeals, entered July 22, 2022 (Docket No. 5353585), and thus no Ginther hearing was held. Hence, this Court's review is limited to the existing record. Abcumby-Blair, 335 Mich.App. at 227.
This Court "review[s] a claim of instructional error involving a question of law de novo, but [this Court] review[s] the trial court's determination that a jury instruction applies to the facts of the case for an abuse of discretion." People v Everett, 318 Mich.App. 511, 528; 899 N.W.2d 94 (2017) (quotation marks and citation omitted). "A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes[,]" when the court "makes an error of law[,]" or when the "court operates within an incorrect legal framework." Id. at 516 (quotation marks and citations omitted). Jury instructions are considered "as a whole, rather than piecemeal, to determine whether any error occurred." People v Traver, 502 Mich. 23, 31; 917 N.W.2d 260 (2018) (quotation marks and citation omitted). "Even if the instructions are imperfect, there is no error if they fairly presented the issues to be tried and sufficiently protected the defendant's rights." People v Blevins, 314 Mich.App. 339, 353; 886 N.W.2d 456 (2016).
"Even when instructional error occurs, reversal is warranted only if after an examination of the entire cause, it shall affirmatively appear that it is more probable than not that the error was outcome determinative." Everett, 318 Mich.App. at 528 (quotation marks, brackets, and citation omitted). "The defendant bears the burden of establishing that the error undermined the reliability of the verdict." Id. at 528-529 (quotation marks and citation omitted).
Review of a claim of prosecutorial misconduct requires a determination "whether the defendant was denied a fair and impartial trial. Further, allegations of prosecutorial misconduct are considered on a case-by-case basis, and the reviewing court must consider the prosecutor's remarks in context." Bennett, 290 Mich.App. at 475 (citation omitted). Because the issue of prosecutorial misconduct is unpreserved, this Court reviews the issue under the plain-error standard, id. at 475-476, which was described earlier. "Further, this Court cannot find error requiring reversal where a curative instruction could have alleviated any prejudicial effect." Id. at 476 (quotation marks, brackets, and citation omitted).
Whether a defendant was denied the effective assistance of counsel presents a mixed question of fact and constitutional law. Heft, 299 Mich.App. at 80. Findings of fact are reviewed for clear error, and questions of law are reviewed de novo. Id.
"[A] jury may infer consciousness of guilt from evidence of lying or deception." People v Dixon-Bey, 321 Mich.App. 490, 509-510; 909 N.W.2d 458 (2017) (quotation marks, brackets, and citation omitted). Hence, "[a] prosecutor may, in certain instances, offer evidence that an exculpatory statement is false as circumstantial evidence of guilt." Seals, 285 Mich.App. at 5, citing Dandron, 70 Mich.App. at 442. Indeed, the substantive use of false exculpatory statements "is not a novel idea in this state." Seals, 285 Mich.App. at 5, citing People v Arnold, 43 Mich. 303, 304-305; 5 N.W. 385 (1880). As has long been recognized," 'it may be shown that [a defendant] made false statements for the purpose of misleading or warding off suspicion; though these are by no means conclusive of guilt, they may strengthen the inferences arising from other facts.'" Seals, 285 Mich.App. at 5, quoting Arnold, 43 Mich. at 305. A" '[defendant has no claim to be protected against the exposure of this falsehood where he indulges in it for his own exculpation. He runs the risk of this exposure when he invents a false defense.'" Seals, 285 Mich.App. at 5, quoting Arnold, 43 Mich. at 304.
In his principal brief on appeal, defendant makes arguments alleging instructional error, prosecutorial misconduct, and ineffective assistance of counsel in connection with the issue of false exculpatory statements that defendant made. Defendant's arguments lack merit. The parties' arguments are focused mostly on the assertion of prosecutorial misconduct, so we will address that before the assertion of instructional error. As background, we will first quote the trial court's jury instruction and the prosecutor's closing argument regarding this matter.
The trial court instructed the jury as follows with respect to false exculpatory statements:
Evidence has been introduced that the defendant had made a false exculpatory statement about his involvement in this case.
Evidence that a criminal defendant has lied about his involvement in this case may be considered by you as circumstantial evidence of guilt.
In deciding what if any weight you give the evidence, you must be guided by the following considerations:
You must decide whether the defendant did, in fact, make any such statement. If you decide that the defendant did make such a statement, you should determine whether the statement was in fact false.
If you decide that the defendant did make a statement about his involvement in this case, you should consider all of the circumstances surrounding the making of that statement and deciding what, if any, weight you attach to it.
And if you decide that the defendant made a false exculpatory statement, you may also use this as evidence of consciousness of guilt.
It is up to you-it is up to you to decide how much weight, if any, to give to this evidence.
Defendant quotes an extended portion of the prosecutor's closing argument with respect to this issue:
And when I talked to you about things in voir dire, about how you can prove things in more than one way, his own statements give you circumstantial evidence of guilt because, ultimately, when a person such as the defendant lies to the police, it shows that he has a consciousness of guilt.
Now, let's look at all of the false statements that the defendant made to the police to distance himself directly from things that are important to this crime.
We know that this crime was conducted primarily through phone apps. But when the defendant first talked to the police, he said, when they asked him about a phone: "I don't have a phone." That was the very first thing he said to [Sergeant Marcus] Ways. And as we know, from the search warrant on his house, that there were three phones attributable to the defendant.
And what's so telling about this is that the defendant was talked to by the police on February 11th.
Now, when he was talking to the police, he had no idea that at the very same time the police were talking to him they were executing a search warrant on his home. So, they asked him: "What about your phone? What's your phone number?" "I don't have a phone."
Now, the next thing he said about that is: "I had a phone a few months ago," which we know was not true. Then he said: "That phone got stolen," which we know is not true. And People's exhibits eighty-five, eighty-six and eighty-seven show that.
Now, furthermore, what do we know? What other things do we know that he made a false statement about that shows his consciousness of guilt?
"When did you lose that phone number?" They're not even talking about the gun. The question put before the defendant is: "When did you lose that phone number?" And he says: "They stole my gun," a non sequitur.
And then we find out, through the search warrant-and he says-not only does he say: "They stole my gun," but: "They stole my clip." But that is right in his house when they execute the search warrant.
Now, consciousness of guilt is circumstantial evidence of guilt. They ask him, specifically: "You got any side pieces?"
And we know that he was trying to distance himself from any other female because they know, and we know, that the female that leads directly to his guilt is Samaria Dorsey. So, he lied, and he said: "No, I don't have any side pieces."
But he has Ms. Dorsey: "I don't wanna go anywhere. I really like you. I want this to work. My word is bond. I got you, baby." He tells Samara Dorsey: "I need you," "Baby, I need-" excuse me: "Baby, it needs to be sooner rather than
later. I'm gonna be here for you, forever. I just need your help to pull me through." And, lastly, what does he say to Samaria Dorsey? "Ride for me, I'll ride for you; jump for me, I'll jump for you."
He was specifically trying to distance himself from any other females because we know, and the police know, that females were the way that he would lure people to these robberies.
Circumstantial evidence. He lied about the use of dating apps.
Now, key to this case is dating apps to lure men. And when [Sergeant] Ways was asking him, in a round-about way, to see if he was going to admit to the dating apps, he says: "Oh, I don't mess with any females," "I don't go out to clubs," "I don't do anything," "I'm a home body." He said: "Well, there's more ways to meet women than the clubs, and stuff. What about the dating apps?" When he asked him about that, he said: "Oh, I don't do any of that, I'm not an internet person." And you see, from the two phones that are attributable to the defendant, all of the dating apps that he used.
And those dating apps are key to how his scheme lured them. You heard him say: "Get on Plenty of Fish," "Talk friendly to people," "Lure people out." And the fact that he lied about having dating apps in this case is circumstantial evidence of guilt.
Defendant argues that, during closing argument, the prosecutor committed misconduct by asserting incorrectly that defendant made false exculpatory statements. Defendant suggests that the prosecutor deliberately misrepresented defendant's statements and that certain statements made by defendant were not proven to be false or exculpatory. Defendant's argument lacks merit.
"Generally, prosecutors are accorded great latitude regarding their arguments and conduct. They are free to argue the evidence and all reasonable inferences from the evidence as it relates to their theory of the case." Bahoda, 448 Mich. at 282 (quotation marks, brackets, and citations omitted). However, "[a] prosecutor may not make a factual statement to the jury that is not supported by the evidence. . . ." People v Dobek, 274 Mich.App. 58, 66; 732 N.W.2d 546 (2007). "The prosecution has wide latitude in arguing the facts and reasonable inferences, and need not confine argument to the blandest possible terms." Id.
In support of his prosecutorial-misconduct claim on this issue, defendant first challenges the portion of the prosecutor's closing argument indicating that defendant made a false exculpatory statement at the outset of the police interview by saying that he did not have a telephone. Defendant argues on appeal that he never told the police that he did not have a telephone. However, a review of the video recording of defendant's interview, which was admitted into evidence and played for the jury, reflects that, at the outset of the interview, Sergeant Ways asked defendant for his telephone number and defendant responded that he did not have one. Sergeant Ways then asked, "No phone?" Defendant responded, "No." Defendant's denial of having a telephone was exculpatory given that cellular-telephone evidence was used to establish his guilt. His statement was false because cellular telephones used by defendant were recovered from his home during the execution of a search warrant. The prosecutor thus properly argued from the evidence that defendant made a false exculpatory statement.
Defendant notes that, later in the interview, defendant said that he has had telephones "off and on" and acknowledged that a specific telephone number had at one point belonged to him. Defendant indicated that his cellular telephone was stolen in December 2018. But considered in their entirety, defendant's statements during the interview certainly support a reasonable inference that defendant was attempting to avoid being associated with the possession of cellular telephones. Overall, we conclude that the prosecutor was properly arguing from the evidence and reasonable inferences arising from the evidence.
Defendant next argues that the prosecutor improperly said that defendant provided a response that was a non sequitur when, in response to a question from Sergeant Ways about when defendant lost access to a certain telephone number, defendant volunteered that his gun had been stolen. But the prosecutor's argument was proper. When Sergeant Ways asked when defendant lost access to that telephone number, defendant responded, "Like December, the time when somebody stole my gun." Given that defendant was not asked about a gun, his response volunteering that his gun was stolen could reasonably be characterized as a non sequitur. That is, defendant's reference to a gun was not responsive to the question that was asked. Defendant's comment could be viewed as indicating consciousness of guilt because it suggests that defendant had knowledge of the circumstances of the crimes, which involved guns, and was attempting to distance himself from the possession of guns by saying his gun was stolen.
Defendant next asserts that the prosecutor improperly argued that defendant said his gun clip was stolen. According to defendant, the record contains no reference to such a statement. But the record supports the prosecutor's argument. There was evidence that, on December 30, 2018, defendant went to the police station and reported that a gun was stolen from his home. Defendant indicated that the last time he knew the gun was secure was on December 22, 2018, and that he realized the gun was missing on December 29, 2018. Defendant reported that he put the gun in his basement closet and that, when he went back later, he noticed the gun and clip were missing. The record thus supports the prosecutor's argument that defendant stated that his gun clip was stolen. The statement was exculpatory because a gun was used to kill Younan on December 23, 2018, and defendant stated that the last time he knew the gun was secure was on December 22, 2018, i.e., one day before the fatal shooting of Younan. Also, defendant's statement that the clip was stolen could reasonably be viewed as false because a gun clip (or "magazine") was found in his home during the execution of a search warrant. Defendant asserts that a person could have more than one clip for a gun, suggesting that the clip he claims was stolen could be different from the clip found in his home, but the evidence is enough to support an argument that defendant made a false exculpatory statement when he said that his clip was stolen. The prosecutor properly argued from the evidence and reasonable inferences therefrom.
Next, defendant takes issue with the prosecutor's argument that defendant lied when he denied having "side pieces." But the evidence and reasonable inferences therefrom supported the prosecutor's argument. During the interview, Sergeant Ways asked defendant if he was "exclusive" with the mother of his child or if he had "side pieces." Defendant responded: "Aw, no. I'm trying to focus on me, man." Upon further questioning, defendant stated: "I don't be with these girls. I'm trying to live my life, man, and be stable." Defendant argues that, because there was some laughter by himself and Sergeant Ways during certain parts of this discussion, it is not clear if defendant actually was denying that he had "side pieces." But defendant's statements supported the prosecutor's argument that he was denying that he had "side pieces." There was evidence that defendant's statements were false because Dorsey's testimony and defendant's text messages indicated that he had dating relationships with women other than the mother of his child. And defendant's statements were exculpatory because there was evidence that defendant used women he was dating as part of the so-called "jugging" robbery scheme. The prosecutor's argument was properly based on the evidence and reasonable inferences therefrom.
It was ultimately a fact question for the jury whether defendant made false exculpatory statements; the jury could assess for itself how to interpret any laughter. The key point is that the prosecutor's argument was properly based on the evidence and reasonable inferences therefrom.
Defendant notes that, later in the interview, he admitted that he knew Dorsey, but he did not admit to having a dating or sexual relationship with her, and his acknowledgement that he knew Dorsey does not change the fact that he denied having "side pieces," which is what was pertinent to the prosecutor's argument on this point.
Defendant next challenges the prosecutor's argument that defendant lied when he denied using dating apps. The prosecutor's argument was proper. During the interview, defendant said that he was a "homebody" and did not go to nightclubs. Sergeant Ways then stated: "I ain't say you gotta do clubs to meet girls. There's apps and sh** for you to meet girls and sh**. Facebook, Instagram, sh**, all them different types of apps and sh**, man." Defendant responded: "I don't be on there like that, man. The only thing I have is Instagram, and . . . I don't be on that, man. I'll tell you, I'm not even an Internet person." It is clear from this discussion when viewed in context that defendant was indicating that he did not have dating apps and did not use such apps to meet women. There was evidence that defendant's statements were false. An examination of two of defendant's cellular telephones revealed that dating apps were installed on his cellular telephones. Dorsey, who had a sexual relationship with defendant, testified that they met through a dating app. Defendant's statements were exculpatory because of the circumstances of the "jugging" robbery scheme. Hence, the prosecutor's argument was properly based on the evidence and reasonable inferences therefrom.
Overall, defendant's argument regarding prosecutorial misconduct is unavailing. He has failed to identify any improper prosecutorial remarks that denied him a fair and impartial trial.
Defendant's assertion of instructional error likewise fails. "A criminal defendant is entitled to have a properly instructed jury consider the evidence against him." People v Riddle, 467 Mich. 116, 124; 649 N.W.2d 30 (2002)." Jury instructions must therefore include all the elements of the charged offenses and any material issues, defenses, and theories that are supported by the evidence." People v Fennell, 260 Mich.App. 261, 265; 677 N.W.2d 66 (2004). As noted, the proper substantive use of false exculpatory statements has been recognized in Michigan since 1880. Seals, 285 Mich.App. at 5, citing Arnold, 43 Mich. at 304-305. And as set forth in connection with defendant's claim of prosecutorial misconduct, there was ample evidence that defendant made false exculpatory statements. Defendant identifies nothing erroneous about the particular instruction in this case. Defendant's assertion of instructional error thus lacks merit.
Defendant suggests that the instruction violated his right to due process because there is a perceived imbalance of power between the police and an accused person. But defendant cites no authority that an instruction on false exculpatory statements violates a defendant's right to due process. Again, Michigan has long recognized the proper substantive use of such evidence. Seals, 285 Mich.App. at 5, citing Arnold, 43 Mich. at 304-305. Defendant's argument is thus unavailing.
Defendant argues that defense counsel was ineffective for failing to object to the prosecutor's closing argument or to identify the imbalance-of-power grounds for objecting to the instruction. As explained, however, defendant's appellate arguments regarding prosecutorial misconduct and instructional error lack merit. Defense counsel was not ineffective for failing to raise futile objections or make meritless arguments. Ericksen, 288 Mich.App. at 201.
In his Standard 4 brief, defendant makes another assertion of prosecutorial misconduct. Defendant complains about the following portion of the prosecutor's rebuttal closing argument:
Lastly, I want to leave you with this. A thief comes only to steal, kill and destroy. And that's what we have in this case: a thief, Mr. Devaun Barr. He indicated to you, over and over again in his text messages, his common scheme and plan. He was a thief. He wanted to rob people. A thief can only come to kill, steal and destroy.
Defendant asserts that there was not enough evidence to support the prosecutor's argument. Defendant says that Dorsey was a discreditable witness, that Booth never identified defendant, and that Booth's property was never found in defendant's possession. But the prosecutor's argument was properly based on the evidence and reasonable inferences therefrom. Booth testified that he was robbed but could not see the faces of the robbers because they were wearing masks. Dorsey testified that defendant robbed Booth. Dorsey also testified regarding defendant's actions with respect to the events that resulted in the killing of Younan. Dorsey's testimony and defendant's text messages indicated defendant's involvement in a "jugging" robbery scheme. Cellular-telephone evidence corroborated Dorsey's account of defendant's location at relevant times. Defendant suggests that Dorsey lacked credibility, but it was the jury's prerogative to assess the credibility of witnesses and weigh the evidence. "This Court will not interfere with the trier of fact's role of determining the weight of the evidence or the credibility of witnesses." Kanaan, 278 Mich.App. at 619. Defendant's assertion of prosecutorial misconduct on this ground lacks merit.
Defendant further argues in his Standard 4 brief that defense counsel was ineffective for failing to object to the prosecutorial misconduct. However, as explained, the prosecutor's remarks that defendant challenges in his Standard 4 brief were proper. Defense counsel was not ineffective for failing to raise futile objections or make meritless arguments. Ericksen, 288 Mich.App. at 201.
VII. OUTSIDE-THE-GUIDELINES SENTENCES
Defendant next argues that the trial court failed to articulate its reasons for imposing sentences that fell outside the applicable guidelines ranges. We agree. The prosecutor concedes error on this issue, although, as we will explain, the parties disagree on the appropriate remedy.
"A sentence that departs from the applicable guidelines range will be reviewed by an appellate court for reasonableness." People v Lockridge, 498 Mich. 358, 392; 870 N.W.2d 502 (2015). "The standard of review to be applied by appellate courts reviewing a sentence for reasonableness on appeal is abuse of discretion." People v Lampe, 327 Mich.App. 104, 125; 933 N.W.2d 314 (2019) (quotation marks, brackets, and citation omitted). "A sentence is unreasonable-and therefore an abuse of discretion-if the trial court failed to adhere to the principle of proportionality in imposing its sentence on a defendant." Id. Therefore, "sentences imposed by a trial court must be proportionate to the seriousness of the circumstances surrounding the offense and the offender." Id. (quotation marks and citation omitted).
In Lockridge, our Supreme Court ruled that the sentencing guidelines are now only advisory, but the Court explained that the guidelines "remain a highly relevant consideration in a trial court's exercise of sentencing discretion," and trial courts "must consult those [guidelines and take them into account when sentencing." Lockridge, 498 Mich. at 391 (quotation marks and citation omitted). "Further, sentencing courts must justify the sentence imposed in order to facilitate appellate review." Id. at 392. When imposing a sentence that falls outside the guidelines range, the trial court must explain "why the sentence imposed is more proportionate to the offense and the offender than a different sentence would have been." Dixon-Bey, 321 Mich.App. at 525 (quotation marks and citation omitted).
As the prosecutor concedes on appeal, the trial court imposed sentences that fell outside the applicable guidelines ranges but then failed to articulate its rationale for imposing such sentences. For the conviction of conspiracy to commit armed robbery with respect to Younan, the guidelines range was 135 to 225 months, and the trial court imposed a minimum sentence of 264 months. For the armed robbery conviction regarding Booth, the guidelines range was 126 to 210 months, and the trial court imposed a minimum sentence of 264 months.
After announcing its sentences, the trial court acknowledged that it had imposed minimum sentences that departed upward from the guidelines ranges; the court asked the prosecutor if the court was required to state reasons for departing above the guidelines ranges. In particular, the trial court asked: "I went over the guidelines, but I've got to put a reason for that, is that correct? Or do I have to?" The prosecutor responded: "Well, no. Under the new-the new law, you do not; you do not." The trial court stated, "Okay." The trial court thus did not articulate reasons for imposing the sentences that departed above the guidelines ranges.
Accordingly, as the prosecutor concedes on appeal, it is necessary to remand the case to the trial court to articulate reasons for its out-of-guidelines sentencing decisions or to resentence defendant. Defendant argues in his reply brief that the only proper remedy is a full resentencing hearing and that it would be inappropriate to allow the trial court to articulate reasons for the departure sentences without a full resentencing hearing. However, our Supreme Court has held that the remedy for a trial court's failure to properly articulate its reasoning for an out-of-guidelines sentence is to remand the case to the trial court to further articulate its reasons for the departure sentence or to resentence the defendant. People v Steanhouse, 504 Mich. 969, 969 (2019). We therefore grant that remedy because our Supreme Court has held that it is the proper remedy.
VIII. OFFENSE VARIABLES
Defendant next presents appellate arguments challenging the assessments of points for various offense variables other than OV 3. As will be explained, this Court need not reach defendant's arguments on this issue because the assessment of 100 points for OV 3, which is the subject of the prosecutor's cross-appeal and is discussed later, is the only scoring decision defendant has challenged that could affect the guidelines range.
When this Court reviews the scoring of the sentencing guidelines,
the circuit court's factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence. Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo. [People v Sours, 315 Mich.App. 346, 348; 890 N.W.2d 401 (2016) (quotation marks and citation omitted).]
Initially, defendant argues that it is difficult to tell from the record how the sentencing guidelines were scored. We disagree. Defendant says that the prosecutor's sentencing memorandum is not in the lower court record, but he is incorrect; the prosecutor's sentencing memorandum is indeed in the record. Moreover, contrary to defendant's argument, the trial court's scoring decisions can be gleaned from the record. Reviewing the sentencing information report as well as the discussion at the sentencing hearing, it is apparent that points were assessed for the offense variables at sentencing in the manner explained by the prosecutor on appeal. In particular, the trial court at sentencing made the following assessments regarding the conviction of conspiracy to commit armed robbery with respect to Younan (which is the conviction for which the scoring decisions challenged by defendant on appeal were made): 25 points for OV 1; 5 points for OV 2; 100 points for OV 3; 15 points for OV 8; 15 points for OV 10; 25 points for OV 13; and 10 points for OV 14. Therefore, defendant's total OV score was 195 points, which, when combined with the unchallenged prior record variable (PRV) score of 20 points, resulted in a guidelines range of 135 to 225 months. See MCL 777.62.
A defendant is entitled to resentencing because of an erroneous scoring of the guidelines only if the guidelines range was altered by the scoring error(s). People v Francisco, 474 Mich. 82, 89 n 8, 92; 711 N.W.2d 44 (2006); People v Rodriguez, 327 Mich.App. 573, 582-583; 935 N.W.2d 51 (2019). In this case, the issue whether the trial court properly assessed 100 points for OV 3- which is the subject of the prosecutor's cross-appeal and is addressed later-is controlling with respect to whether defendant is entitled to resentencing on the basis of any scoring error(s). Under the applicable sentencing grid, defendant is placed in offense-variable level VI if 100 or more points have been assessed. MCL 777.62. Therefore, if the trial court properly assessed 100 points for OV 3, then defendant would remain in offense-variable level VI and his guidelines range would not change even if any scoring errors occurred with respect to other offense variables. And if 0 points should have been assessed for OV 3, as defendant argues and as the trial court ruled in granting resentencing with respect to this conviction, then defendant's total offense-variable score would be no more than 95 points regardless of whether there were any scoring errors other than OV 3, and defendant would thus be entitled to resentencing because his offense-variable level would be, at most, level V, thereby altering the guidelines range. MCL 777.62. Either way, the issue regarding OV 3 is dispositive regarding whether defendant is entitled to resentencing on the basis of any scoring error(s), thereby rendering moot defendant's challenges to the assessments of points for the other offense variables. This Court thus need not address defendant's arguments regarding offense variables other than OV 3. See People v Ogilvie, ___ Mich App ___, ___; N.W.2d ___ (2022) (Docket No. 354355); slip op at 2, 9 (explaining that, because one of the issues raised on appeal was dispositive, the other issues raised on appeal were deemed moot and not addressed).
IX. ACQUITTED CONDUCT
On cross-appeal, the prosecutor argues that the trial court at sentencing did not rely on acquitted conduct when assessing 100 points for OV 3 and that the trial court thus erred when it granted resentencing on the conviction of conspiracy to commit armed robbery with respect to Younan. We agree.
Constitutional issues are reviewed de novo. People v Brown, 339 Mich.App. 411, 419; 984 N.W.2d 486 (2021).
Initially, the prosecutor argues that, at sentencing, defendant waived any challenge to the assessment of 100 points for OV 3, thereby extinguishing any error. We disagree.
At sentencing, the prosecutor argued that 100 points should be assessed for OV 3 because Younan was killed and homicide was not the sentencing offense. The trial court asked defense counsel if she had any argument on OV 3, and defense counsel responded, "No, no, Judge, not on that."
Waiver is "the intentional relinquishment or abandonment of a known right." People v Carter, 462 Mich. 206, 215; 612 N.W.2d 144 (2000) (quotation marks and citations omitted). A party's attorney may waive an alleged error by clearly expressing satisfaction with a trial court's decision. Kowalski, 489 Mich. at 503. Waiver extinguishes any error, thereby precluding review of the alleged error. Id. at 503-504. In Kowalski, 489 Mich. at 504-505, our Supreme Court held that, when defense counsel stated, "I have no objections" to the trial court's jury instructions, defense counsel expressly and unequivocally indicated approval of the instructions. Kowalski thus indicates that, in general, a waiver may occur when a party's attorney expresses that there are no objections to a trial court's decision.
However, a challenge to the calculation of the sentencing guidelines may be "preserved by raising the issue at sentencing, in a motion for resentencing, or in a motion to remand." Sours, 315 Mich.App. at 348 (quotation marks and citation omitted). This Court has held that a challenge to the scoring of the sentencing guidelines was preserved when the defendant raised the issue in a motion to remand filed in this Court, even though the defendant's attorney had indicated at sentencing that there were no additions or corrections to be made to the scoring of the sentencing guidelines variables. People v McChester, 310 Mich.App. 354, 357; 873 N.W.2d 646 (2015). The present case is similar to McChester. Although defense counsel indicated at sentencing that she had no argument with respect to OV 3, defendant raised the OV 3 issue in his motion for resentencing and his motion to remand. In these circumstances, the prosecutor's waiver argument lacks merit under McChester.
Next, the prosecutor argues that, even if defendant did not waive the issue, the trial court at sentencing did not rely on acquitted conduct when assessing 100 points for OV 3, and the trial court thus erred when it later granted resentencing on the conviction of conspiracy to commit armed robbery with respect to Younan. We agree.
OV 3 concerns "physical injury to a victim." MCL 777.33(1). An assessment of 100 points is required "if death results from the commission of a crime and homicide is not the sentencing offense." MCL 777.33(2)(b). The assessment of 100 points under OV 3 requires factual causation, i.e., that the victim's death would not have occurred but for the defendant's criminal actions. People v Laidler, 491 Mich. 339, 345; 817 N.W.2d 517 (2012). The defendant's conduct is not required to have been the exclusive cause of the death. Id. at 346. The assessment of points for OV 3 is to be based on a consideration of the sentencing offense alone. People v Mushatt, 486 Mich. 934, 934 (2010); People v Biddles, 316 Mich.App. 148, 165; 896 N.W.2d 461 (2016).
"In [People v Beck, 504 Mich. 605; 939 N.W.2d 213 (2019)], our Supreme Court held that the use of 'acquitted conduct' at sentencing violates a defendant's constitutional right to due process." Brown, 339 Mich.App. at 419, citing Beck, 504 Mich. at 629. Stated differently, "our Supreme Court held 'that due process bars sentencing courts from finding by a preponderance of the evidence that a defendant engaged in conduct of which he was acquitted.'" People v Stokes, 333 Mich.App. 304, 307; 963 N.W.2d 643 (2020), quoting Beck, 504 Mich. at 629. After having been acquitted of a given crime, the defendant may not be sentenced as if the defendant committed that very crime. Stokes, 333 Mich.App. at 307, citing Beck, 504 Mich. at 609. The trial court may not rely even in part on acquitted conduct. Stokes, 333 Mich.App. at 310. But the trial court may consider "the entire res gestae of an acquitted offense, and Beck does not preclude a sentencing court from generally considering the time, place, and manner in which an offense of which a defendant has been convicted is committed." Id. at 310-311. "In the absence of evidence presented by a defendant demonstrating that a sentencing court actually relied on acquitted conduct when sentencing the defendant, the defendant is not entitled to resentencing." Id. at 312.
In Brown, 339 Mich.App. at 421-422, this Court discussed "the epistemological and practical problems associated with" determining what constitutes "acquitted conduct" that a sentencing court is barred from considering under Beck. This Court noted that one option "would be to adopt a categorical approach based on the elements of the crime. Under this standard, any evidence that relates to any element of the crime of which the defendant was acquitted would have to be discarded at sentencing." Id. at 422. Although a categorical approach would be easy to apply, it would lead to absurd results in some situations. Id. at 423. "If the categorical approach was adopted, then this would mean that any fact or circumstance related to any element of the acquitted crime would be off-limits at sentencing, even if the same fact or circumstance was also related to the convicted crime." Id. This Court thus rejected such a categorical approach. Id.
This Court in Brown then explained that "[a] different way of identifying the facts and circumstances that are prohibited at sentencing centers on what the parties actually disputed at trial." Id. This approach would not prohibit consideration of "any and all facts and circumstances related to any element of the crime" of which the defendant was acquitted but would instead "focus[] on the key facts and circumstances that the parties argued about during the trial." Id.
This approach is similar to the "rational jury" standard used in the double-jeopardy context, which requires examining the record to determine the ground or grounds upon which a rational jury could have acquitted the defendant. Rather than focus on all of the conceivable grounds upon which a jury could have theoretically acquitted the defendant-even those grounds, for example, that were conceded by the defense or otherwise uncontested by the parties-the focus would be on the grounds that the parties actually put in dispute at trial. The inquiry must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings. [Id. at 423-424 (quotation marks and citations omitted).]
This Court in Brown concluded that "[t]his rational-jury approach appears to be consistent with Beck." Id. . at 424. This Court further explained:
[U]nder the rational-jury approach, the sentencing court could consider facts and circumstances that were not, in a practical sense, put in dispute at trial, as long as those facts and circumstances were otherwise consistent with the jury's acquittal on a particular charge. Moreover, if a specific fact or circumstance was relevant to both the acquitted charge and the convicted charge-i.e., if there was an overlap of relevant conduct-then the trial court could consider that fact or circumstance when sentencing on the convicted charge. This rational-jury standard appears to be consistent with Beck and its progeny, and it is a workable standard that trial courts can use when sentencing a defendant who was convicted of a particular charge but also acquitted of another related charge. [Id. at 425.
The prosecutor urges this Court to provide further clarity regarding the rational-jury approach adopted in Brown. The prosecutor wants this Court to explicitly hold that the rational-jury test adopted in Brown is the same rational-jury test that the United States Supreme Court adopted in the double-jeopardy context in Ashe v Swenson, 397 U.S. 436; 90 S.Ct. 1189; 25 L.Ed.2d 469 (1970). However, the test set forth in Brown provides the requisite guidance to resolve the present case; the prosecution admits as much at one point in its brief. Any further guidance regarding the Brown test should await a case in which it is needed.
Applying these principles to the present case, we conclude that defendant has failed to demonstrate that the trial court relied on "acquitted conduct" when assessing 100 points for OV 3. Moreover, the assessment was proper on the basis of a consideration of the sentencing offense alone. Therefore, as we will explain, the trial court did not err in assessing 100 points for OV 3.
The sentencing offense for which 100 points were assessed for OV 3 was conspiracy to commit an armed robbery against Younan. "A criminal conspiracy is a partnership in criminal purposes, under which two or more individuals voluntarily agree to effectuate the commission of a criminal offense." Jackson, 292 Mich.App. at 588. "Conspiracy is a specific-intent crime, because it requires both the intent to combine with others and the intent to accomplish the illegal objective." Mass, 464 Mich. at 629. Therefore, by finding defendant guilty of conspiracy to commit an armed robbery against Younan, the jury found beyond a reasonable doubt that, inter alia, (1) defendant and at least one other person agreed to commit an armed robbery against Younan, and (2) defendant specifically intended to accomplish the illegal objective, i.e., to commit or help to commit an armed robbery of Younan. The evidence at trial indicated that Younan died as a result of this conspiracy. That is, but for defendant's criminal acts of entering into a conspiracy to commit an armed robbery of Younan, Younan would not have died. Defendant was thus "a factual cause" of the death, even if he was not the sole factual cause. See Laidler, 491 Mich. at 346.
It was undisputed at trial that Younan died from a gunshot wound outside the house on Wisconsin Street. This was a house to which defendant had a key because he was helping his stepfather fix up the house. This was the same property at which defendant and his cohorts had committed an armed robbery against Booth six days earlier. After the Booth robbery, defendant and his cohorts made plans to commit another robbery the following weekend, which included the date on which Younan was robbed and killed. On the night he was killed, Younan had gone out to meet a woman he had communicated with on a dating app, just as Booth had done on the night he was robbed. Dorsey testified that defendant was at the scene at the time of the Younan incident, and cellular-telephone evidence corroborated that defendant was in the vicinity at that time.
Defense counsel's closing argument reflects that the key defense at trial was that defendant was not the person who robbed and murdered Younan, i.e., that the element of identity was not established. See People v Yost, 278 Mich.App. 341, 356; 749 N.W.2d 753 (2008) ("[I]dentity is an element of every offense."). But defense counsel did not dispute that Younan was killed. Defense counsel conceded that Younan had died. The evidence at trial was uncontested that Younan died from a gunshot wound to the abdomen and that his body was found outside the house on Wisconsin Street. Defense counsel also conceded that defendant might have been planning to commit a robbery at some point. Defense counsel did not dispute that the conspiracy was a factual cause of Younan's death. Viewing the trial through a practical frame, a rational jury could have acquitted defendant on the ground that defendant's identity as the person who robbed and murdered Younan, either as a principal or an aider and abettor, was not established beyond a reasonable doubt. This acquittal does not preclude consideration of the undisputed facts and circumstances that were pertinent to the assessment of 100 points for OV 3, including that Younan died as a factual result of the conspiracy to rob him.
The trial court could thus reasonably find that, although defendant did not fire the gun or aid and abet in the commission of the offenses of which he was acquitted, his criminal conduct of entering into the conspiracy was a factual cause of Younan's death. That is, it was reasonable to find that, if defendant had not planned and conspired to commit an armed robbery of Younan, Younan would not have died. This is not inconsistent with the jury's acquittal of defendant on the murder, armed robbery, and felony-firearm charges. A finding that defendant's criminal action of entering into the conspiracy was a factual cause of Younan's death does not require a determination that defendant committed any of the offenses of which he was acquitted. There is nothing in OV 3 that requires the defendant to have been a principal or accessory in the physical act that caused the victim's death; rather, as noted, factual causation is all that is needed.
Our conclusion is not altered by the fact that, in Brown, this Court ruled that the sentencing court had improperly considered the fact that the defendant shot and killed the victim. Brown, 339 Mich.App. at 426-427. In Brown, a jury found the defendant guilty of felon in possession of a firearm, MCL 750.224f, and felony-firearm, but the defendant was acquitted of second-degree murder and the lesser included offense of voluntary manslaughter, MCL 750.321. Id. at 416-417. In sentencing the defendant for the conviction of felon in possession of a firearm, the trial court departed upward from the guidelines range, relying in part on the fact that a death had resulted from the defendant's crimes. Id. at 418. This Court vacated the defendant's sentence and remanded for resentencing. Id. at 428. This Court stated that, although the defendant had caused the victim's death, the defendant was not criminally responsible for that death because the jury found that he had acted in self-defense when he shot the victim, i.e., that the killing was lawfully justified. Id. at 427. Therefore, under Beck, the defendant's conduct in shooting and killing the victim was off-limits at sentencing. Id.
The present case differs from Brown. In Brown, the defendant shot the victim in lawful self-defense, and the trial court at sentencing was thus precluded under Beck from considering that legally justified conduct. By contrast, the causal chain from defendant's conduct to Younan's death did not involve any conduct that a jury found to be justified. The jury found that defendant entered into a criminal conspiracy to commit an armed robbery of Younan. As explained, the evidence at trial indicates that this conspiracy was a factual cause of Younan's death.
Accordingly, the trial court did not err in assessing 100 points for OV 3. Further, because the assessment was proper, defense counsel at sentencing was not ineffective for failing to raise a futile objection or make a meritless argument on this issue. Ericksen, 288 Mich.App. at 201.
Defendant argues that his conduct of entering into the conspiracy was "too far attenuated" from Younan's death. This invocation of attenuation seems to imply a proximate-cause analysis. But our Supreme Court has held that OV 3 requires factual causation, not proximate causation. Laidler, 491 Mich. at 344-346. Our Supreme Court also noted that "[t]here is nothing in MCL 777.33 [the OV 3 statute] that suggests that there may be only a single cause of a death." Laidler, 491 Mich. at 346. Therefore, defendant's invocation of attenuation is inapt.
Finally, defendant asserts that "there is unconstitutional burden-shifting inherent to the prosecutor's arguments." Defendant seems to be confusing the prosecutor's burdens of proof at trial and sentencing with the burden of demonstrating that a Beck error occurred. In Stokes, 333 Mich.App. at 312, this Court explained: "In the absence of evidence presented by a defendant demonstrating that a sentencing court actually relied on acquitted conduct when sentencing the defendant, the defendant is not entitled to resentencing." Therefore, a defendant has the burden of demonstrating that a Beck error occurred, which, as explained, defendant has failed to satisfy. This has nothing to do with the prosecutor's burdens of proof at trial and sentencing. Hence, defendant's confusing argument on this point is inapt.
X. CONCLUSION
We affirm defendant's convictions, reverse the order granting in part defendant's motion for resentencing, and remand the case to the trial court with instructions to articulate a basis for its out-of-guidelines sentencing decisions or to resentence defendant. We do not retain jurisdiction.