                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 February 2, 2016
              Plaintiff-Appellee,

v                                                                No. 323428
                                                                 Cass Circuit Court
PARIS PIERRE BANKS,                                              LC No. 14-010092-FH

              Defendant-Appellant.


Before: BECKERING, P.J., and GLEICHER and M. J. KELLY, JJ.

PER CURIAM.

       Following a jury trial, defendant, Paris Pierre Banks, was convicted of conspiracy to
commit second-degree home invasion, MCL 750.110a(3) and MCL 750.157a; attempted second-
degree home invasion, MCL 750.110a(3) and MCL 750.92; and obstruction by disguise, MCL
750.217. He was sentenced as a second-offense habitual offender, MCL 769.10, to 2 to 22 years
and 6 months’ imprisonment for conspiracy to commit second-degree home invasion, two to
seven years and six months’ imprisonment for attempted second-degree home invasion, and to
129 days in jail for obstruction by disguise. The sentences are concurrent, and defendant
received credit for 129 days already served. Defendant appeals as of right. We affirm in part,
reverse in part, and remand for further proceedings consistent with this opinion.

                                    I. PERTINENT FACTS

       On April 9, 2014, Brian Brown returned to his home at approximately 11:30 a.m. At the
time he left, only his two dogs were in the home. However, when he returned, he saw a red
Mitsubishi SUV, which he did not recognize, backed up to his garage. Brown saw three
unidentified men run from the back of his home and into the SUV. Brown asked the men what
they were doing on his property. They replied that they were asking for directions to get to
South Bend, Indiana. Shortly thereafter, the driver of the SUV quickly backed up and “sped
around” Brown’s vehicle, through the front yard, and down the road. Brown, who had already
contacted police officers, got into his vehicle and began chasing the SUV. Police officers
subsequently took over the chase, but eventually lost sight of the SUV.

       Upon returning home, Brown noticed that it appeared someone had tried to access his
home through a rear door to the garage, that the person or persons had damaged multiple doors,
and that someone had kicked in the door to his laundry room, breaking the door jamb. Brown

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observed that the door going from the home to the inside of the garage was open; he normally
closed this door. Brown testified that the interior door going from the laundry room to the
kitchen was shut; he normally left this door open to allow his dogs access to the laundry room,
where their food was kept. It did not appear that anything had been stolen.

        Although the police officers who chased the red SUV eventually lost sight of it, one of
the officers continued to search the area and discovered a red Mitsubishi SUV parked in a
secluded driveway. Upon further inspection of the area, an officer discovered three men walking
through a nearby field. Police officers apprehended the men; two of the men identified
themselves, and defendant provided a false name to the officers. The officers separated the men
and asked them what they were doing in the field. According to trial testimony, the “common
thread” of the men’s statements was that they had taken part in a drug deal gone awry, and they
ran away after being threatened with guns. They denied any connection to the red SUV that was
found nearby. Upon further questioning, defendant admitted that he had been traveling from
Indiana with the other two men—Robert and Deon Goodwin—but he knew nothing about the red
SUV.

       In a search of the nearby area, police officers found, among other items, a red hat.
Officers contacted Indiana resident Gail Hoefle, the owner of the SUV, who consented to a
search of the vehicle. Inside the SUV, officers found a cellular telephone with a picture of Deon
wearing what appeared to be the same red had that the officers recovered. Officers also found a
debit card bearing Deon’s name in the center console of the vehicle. Hoefle testified that she
allowed her granddaughter, Arissa Lee, to borrow the vehicle, but did not allow Deon to use it.
Lee, who was dating Deon, allowed Deon to drive the vehicle on April 9, 2014, because he told
her that he had a job interview. She did not give Deon permission to take the vehicle to
Michigan.

       Based on this circumstantial evidence, the jury convicted defendant of conspiracy to
commit second-degree home invasion, attempted second-degree home invasion, and obstruction
by disguise. He now appeals as of right.

                           II. SUFFICIENCY OF THE EVIDENCE

        Defendant first argues that there was insufficient evidence to convict him of conspiracy
to commit second-degree home invasion and attempted second-degree home invasion. When a
defendant challenges the sufficiency of the evidence, we review the convictions de novo. People
v Harverson, 291 Mich App 171, 177; 804 NW2d 757 (2010). The analysis is “whether a
rational trier of fact could find that the evidence proved the essential elements of the crime
beyond a reasonable doubt.” Id. at 175. In making this determination, we view “the evidence in
the light most favorable to the prosecution.” Id. Further, we will “not interfere with the jury’s
assessment of the weight and credibility of witnesses or the evidence, and the elements of an
offense may be established on the basis of circumstantial evidence and reasonable inferences
from the evidence.” People v Dunigan, 299 Mich App 579, 582; 831 NW2d 243 (2013) (internal
citation omitted).

       “Second-degree home invasion requires proof that [1] the defendant entered a dwelling
by breaking or without the permission of any person in ownership or lawful possession or control

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of the dwelling and [2] did so with the intent to commit a felony, larceny, or assault therein or
committed a felony, larceny, or assault while entering, present in, or exiting the dwelling. Id.
Further, “it is well settled that identity is an element of every offense.” People v Yost, 278 Mich
App 341, 356; 749 NW2d 753 (2008). With respect to defendant’s attempt conviction, “an
‘attempt’ consists of (1) an attempt to commit an offense prohibited by law, and (2) any act
towards the commission of the intended offense.” People v Thousand, 465 Mich 149, 164; 631
NW2d 694 (2001). A defendant must have the specific intent to commit the underlying offense.
Id. at 164 n 15. In addition, an “act” “consists of some direct movement toward commission of
the crime that would lead immediately to the completion of the crime.” People v Jones, 443
Mich 88, 100; 504 NW2d 158 (1993).

        Here, Brown saw a red Mitsubishi SUV backed up to his garage when he returned home.
He then saw three young men run around from the back of his house and get into the SUV,
which fled the scene—by way of traversing his lawn to foil his detention efforts—at a high rate
of speed. Brown pursued the vehicle until police took over the chase. Officers lost contact with
the vehicle but, shortly thereafter, found a red Mitsubishi SUV abandoned in a secluded
driveway in a nearby area. A reasonable inference arises that the red Mitsubishi SUV, which
fled from the house at a high rate of speed, was the same red Mitsubishi SUV that police later
found abandoned. Defendant, Robert, and Deon were found within close proximity of the
abandoned red Mitsubishi SUV, and Deon’s debit card and a cellular telephone with a picture of
him on it were found inside the vehicle. Further, there was testimony that the vehicle had been
lent to Deon. Defendant admitted coming to Michigan with Robert and Deon, who were all
found by police together near the abandoned vehicle. Thus, defendant’s statements and the
evidence linking Deon to the vehicle connected defendant to the red Mitsubishi SUV. Viewing
this evidence in a light most favorable to the prosecution, defendant’s identity as one of the three
individuals who came running out from behind the victim’s house was proven beyond a
reasonable doubt. Dunigan, 299 Mich App at 582.

        With respect to attempted second-degree home invasion, there was evidence that
defendant, Robert, and Deon, damaged doors and broke the doorjamb to the laundry room door
of Brown’s house. This evidence demonstrates an attempt to enter a dwelling by breaking, and
constitutes direct movement toward the commission of home invasion. Thousand, 465 Mich at
164; Jones, 443 Mich at 100. With respect to intent, as discussed infra, the evidence also
permits a reasonable inference that the three individuals intended to commit a larceny, given that
they were at an unoccupied house on a large lot with their vehicle backed up to the garage.
Further, when defendant was found in the field, he gave a fictitious name to the police. This
deception and Robert, Deon, and defendant’s flight from the scene when the homeowner
returned provide for inferences of consciousness guilt. See People v Smelley, 485 Mich 1023;
776 NW2d 310 (2010); People v Unger, 278 Mich App 210, 227; 749 NW2d 272 (2008).
Viewed in a light most favorable to the prosecution, the evidence of defendant’s consciousness
of guilt coupled with the facts and circumstances provided sufficient evidence for a jury to find
defendant guilty of attempted second-degree home invasion. Harverson, 291 Mich App 175.

        With respect to 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 NW2d 541 (2011). In order to
establish the requisite intent for a conspiracy, “there must be proof showing that the parties
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specifically intended to further, promote, advance, or pursue an unlawful objective.” Id.
(quotation marks and citation omitted). However, “[d]irect proof of a conspiracy is not required;
rather, proof may be derived from the circumstances, acts, and conduct of the parties.” Id.
(quotation marks and citation omitted).

        Here, the evidence indicates that Robert, Deon, and defendant acted in concert during the
attempted home invasion. Brown came home to find the three individuals running out from
behind his house, and he later discovered that there was damage to several entryways into his
home and that a door in the back of the house was forcibly opened. The damage to the doors
permits a reasonable inference that the group specifically intended to enter the dwelling by
breaking. Next, although defendant and his cohorts stated that they needed directions, they were
behind the house when Brown arrived home and their vehicle was backed up to the garage. The
attempted home invasion occurred on a Wednesday morning—a time where many people are
presumably at work or school. The house was off the road and on a wooded lot, and there were
no other cars in the driveway. These facts support an inference that the attempted entry was
committed with an intent to commit larceny. Further, the facts and circumstances permit a
reasonable inference that the group was acting together in agreement to effectuate the home
invasion: the individuals traveled together to Michigan from Indiana; the red Mitsubishi SUV
they were riding in was backed up to the garage, which is circumstantial evidence that the three
individuals planned for loading as well as a quick getaway; the chosen house was off the road
and on a wooded lot with no cars in the driveway, which is further circumstantial evidence that
Robert, Deon, and defendant picked a secluded target; they had already begun breaking into the
home; and all three individuals got into the red Mitsubishi SUV together and sped off through
the lawn. Under these circumstances, a reasonable jury could infer that defendant and the other
parties specifically intended to commit a larceny within the home—meeting the intent element of
second-degree home invasion. See id. In sum, the circumstances and conduct of the parties,
viewed in a light most favorable to the prosecution, permit a reasonable inference that defendant,
Robert, and Deon knew of and “voluntarily agree[d] to effectuate the commission of” second-
degree home invasion. See id. Therefore, there was sufficient evidence to convict defendant of
conspiracy to commit second-degree home invasion. Harverson, 291 Mich App 175.

       While we find there was sufficient evidence to support defendant’s conspiracy and
attempt convictions, we note that, although not raised by defendant, there was insufficient
evidence for his obstruction by disguise conviction. MCL 750.217 states that:

       Any person who in any manner disguises himself or herself with intent to obstruct
       the due execution of the law, or with intent to intimidate, hinder or interrupt any
       officer or any other person in the legal performance of his or her duty, or the
       exercise of his or her rights under the constitution and laws of this state, whether
       such intent be effected or not, is guilty of a misdemeanor punishable by
       imprisonment for not more than 1 year or a fine of not more than $1,000.00.

Interpreting this statute, this Court has held that the word “disguise” as used in the statute refers
to “a defendant’s physical disguise of his person . . . .” People v Jackson, 262 Mich App 669,
670; 686 NW2d 810 (2004) (emphasis added). Giving a false name to police officers is not
prohibited by the statute. Id. at 675. Here, the prosecution improperly urged the jury to convict
defendant of obstruction by disguise based on his act of supplying a false name, and we find no

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evidence to support this conviction. As such, we find that the conviction is improper, and
remand with instructions for the trial court to vacate defendant’s conviction and sentence on this
charge.

                             III. PROSECUTORIAL MISCONDUCT

        Next, defendant argues that prosecutorial misconduct denied him a fair trial. Because his
claims of prosecutorial misconduct are unpreserved, our review is for plain error that affected
defendant’s substantial rights. People v Thomas, 260 Mich App 450, 453-454; 678 NW2d 631
(2004). Under this standard, defendant bears the burden of showing: “1) error . . . occurred, 2)
the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights,” “i.e.,
that the error affected the outcome of the lower court proceedings.” People v Carines, 460 Mich
750, 763; 597 NW2d 130 (1999). If these elements are established, this Court exercises its
discretion in determining whether reversal is warranted. Id. “Prosecutors . . . have a duty to see
that defendants receive a fair trial while attempting to convict those guilty of crimes.” People v
Ullah, 216 Mich App 669, 678; 550 NW2d 568 (1996). However, “prosecutorial misconduct
cannot be predicated on good-faith efforts to admit evidence.” People v Noble, 238 Mich App
647, 660; 608 NW2d 123 (1999).

        Defendant first argues that the prosecutor deliberately elicited irrelevant and prejudicial
evidence that one of the Goodwin brothers changed his story regarding what happened and that
Deon did not have permission to take the borrowed vehicle to Edwardsburg. Initially, we note
that defendant has not demonstrated that the prosecutor’s attempt to elicit the information was
done in bad faith. See id. Further, the challenged testimony was relevant to rebutting
defendant’s explanation of why he was in Edwardsburg, Michigan, establishing the parties’
identities, their connection to the SUV, and the existence of a plan. With respect to the
testimony related to Deon’s permission to borrow the vehicle, this testimony provided context
for the disputed events and was part of the complete story. See People v Aldrich, 246 Mich App
101, 115; 631 NW2d 67 (2001) (“[A] jury is entitled to hear the ‘complete story’ of the matter in
issue.”). Next, there was no indication that this evidence was given undue or preemptive weight.
See People v Mardlin, 487 Mich 609, 627; 790 NW2d 607 (2010), citing MRE 403. With
respect to defendant’s hearsay and Confrontation Clause arguments within this issue, we note
that the contents of the changed statement were not disclosed to the jury. Further, the fact that
two statements are inconsistent is not an assertion. Thus, this testimony was not hearsay, MRE
801(a); MRE 801(c), and the Confrontation Clause is not implicated, People v Chambers, 277
Mich App 1, 10-11; 742 NW2d 610 (2007). Defendant has not shown plain error. Carines, 460
Mich at 763.

        Next, defendant argues that the prosecutor argued facts not in evidence by stating that the
interior doors of Brown’s home were open and shut in combinations that he did not leave them.
“Although a prosecutor may not argue facts not in evidence or mischaracterize the evidence
presented, the prosecutor may argue reasonable inferences from the evidence.” People v Watson,
245 Mich App 572, 588; 629 NW2d 411 (2001). Brown testified that he found the interior door
going from the home to the garage open and the interior door going from the hallway/kitchen
area to the laundry room closed. He further testified that the interior door to the garage was
closed when he left and that the interior door to the laundry room was left open. Therefore, the
prosecutor argued facts that were in evidence, and defendant’s argument is simply without merit.

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Further, contrary to defendant’s argument, this testimony was not inadmissible under MRE 403.
This evidence was highly probative to whether entry was made.

        Next, defendant argues that the prosecutor improperly expressed his personal beliefs by
stating the case had strong circumstantial evidence. With respect to a prosecutor’s statements,
“[t]he crucial inquiry is not whether the prosecutor said ‘We know’ or ‘I know’ or ‘I believe,’ but
rather whether the prosecutor was attempting to vouch for the defendant’s guilt.” People v Reed,
449 Mich 375, 399; 535 NW2d 496 (1995). Further, in an opening statement, a prosecutor may
state facts that he intends to prove at trial. People v Meissner, 294 Mich App 438, 456; 812
NW2d 37 (2011). Viewing the challenged statement in context, the prosecutor was not
personally vouching for defendant’s guilt; rather, the prosecutor told jury that he intended to
prove his case based on the strength of the circumstantial evidence presented. The prosecutor
argued the evidence that he intended to use and his theory of the case, which was that strong
circumstantial evidence proved defendant’s guilt beyond a reasonable doubt.

         Next, defendant argues that the prosecutor improperly elicited opinion testimony from
two police officers. Initially, he contends that the following testimony from Albert Strukel of the
Cass County Sheriff’s Office was improper opinion testimony: (1) Strukel’s testimony that the
red hat found in the field was the red hat in the photo on the cellular telephone; and (2) Strukel’s
testimony that the individual in the photo on the cellular telephone was Deon. Lay opinion
testimony is governed by MRE 701, which provides:

       If the witness is not testifying as an expert, the witness’ testimony in the form of
       opinions or inferences is limited to those opinions or inferences which are (a)
       rationally based on the perception of the witness and (b) helpful to a clear
       understanding of the witness’ testimony or the determination of a fact in issue.

Here, Strukel testified that he recognized the person in the photo on the screensaver of the
cellular telephone as Deon and that Deon was wearing the hat that was found in the field.
Strukel observed Deon earlier that day and found the hat, which makes his identifications of the
hat and Deon rationally based on his own perception. Moreover, the identification was helpful to
a determination of a fact in issue, which was an identification of who was in the red Mitsubishi
SUV. The photo, which contained Deon and the hat, connected Deon to the vehicle, which in
turn connected the other individuals to the vehicle. Therefore, Strukel’s testimony identifying
the hat and Deon in the photo was proper lay opinion testimony. MRE 701. Defendant has not
demonstrated plain error in this respect. Carines, 460 Mich at 763.

        Next, defendant argues that the prosecutor improperly elicited opinion testimony from
Strukel, as well as from Detective Kristin Daly, who both testified about the inconsistent
statements—discussed above—given by one of the Goodwin brothers. According to defendant,
the testimony about the statements being inconsistent was improper opinion testimony. We find
that this testimony fit within the parameters of MRE 701 because it was based on perceptions
and was helpful to the determination of a fact at issue. Further, even to the extent that the
testimony was improper, defendant has not demonstrated that the prosecutor acted in bad faith,
Noble, 238 Mich App at 660, or that the testimony had any effect on the outcome of the trial,
Carines, 460 Mich at 763.


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       Lastly, with regard to prosecutorial misconduct, because we find no merit to any of
defendant’s alleged errors, we find that defendant’s claim of cumulative error argument is
without merit.

                      IV. INEFFECTIVE ASSISTANCE OF COUNSEL

       Finally, defendant argues that defense counsel was ineffective for failing to object to the
prosecutorial misconduct arguments above. Defense counsel was not ineffective for failing to
make meritless objections. People v Comella, 296 Mich App 643, 655; 823 NW2d 138 (2012).

        Affirmed in part, reversed in part, and remanded for the purpose of vacating defendant’s
conviction and sentence pertaining to the offense of obstruction by disguise. We do not retain
jurisdiction.



                                                            /s/ Jane M. Beckering
                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Michael J. Kelly




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