                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     August 22, 2017
               Plaintiff-Appellee,

v                                                                    No. 332043
                                                                     Berrien Circuit Court
AQUARIUS DEVONTE JOHNSON,                                            LC No. 2015-003423-FC

               Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

v                                                                    No. 332296
                                                                     Berrien Circuit Court
ANTHONY DEWAYNE ISOM,                                                LC No. 2015-003422-FC

               Defendant-Appellant.


Before: BOONSTRA, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.

PER CURIAM.

         In this consolidated appeal, defendants independently appeal by right their convictions
arising out of an armed robbery, and in Docket No. 332043, defendant Johnson also appeals by
right his sentences. Both defendants were convicted of armed robbery, MCL 750.529.
Defendant Johnson was also convicted of carrying or possessing a firearm during the
commission of a felony (felony-firearm), MCL 750.227b, and carrying or possessing a firearm
while ineligible to do so (felon-in-possession), MCL 750.224f; and defendant Isom was also
convicted of possession of less than 25 grams of cocaine, MCL 333.7403(2)(v). The trial court
sentenced Johnson as a second-offense habitual offender, MCL 769.10, to 13 to 30 years in
prison for armed robbery conviction, 28 months to 90 months in prison for felon-in-possession,
and to two years in prison for his felony-firearm conviction. The trial court sentenced Isom to
serve concurrent terms of 6 to 15 years in prison for armed robbery conviction and 216 days in
jail for possession of cocaine. Neither defendant challenges the occurrence of the robbery, but
both argue that there was insufficient evidence that they were involved and that they were denied
fair trials by joining their charges for a single trial. Johnson also argues that there were various

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other errors that warrant a new trial or, at the least, require resentencing. We affirm in both
dockets.

        The robbery occurred on the morning of July 28, 2015. The victim, who testified through
a Spanish language interpreter, walked from her place of employment, a charter school, to a
nearby gas station to purchase lunch. While walking back from the gas station, she noticed two
people running up behind her. She did not know why they were running, but when they got
close to her one of them said, “She, she,” and then, “Get it. Get it.” One grabbed her from
behind and the other put a pistol to her chest. The man who held the pistol to her chest grabbed
her bag from the store and threw the things on the ground. The bag had the items she bought
from the store and her wallet in it. She had her “papers and $20” in her wallet. The man with
the pistol took her wallet from the bag and then both men ran in the direction of the charter
school; then they ran off together in the direction of an apartment complex behind the school.
The victim returned to the school and contacted the police, who found the victim to be distraught
and to have urinated on herself; she also had a welt on her chest around her sternum.

         The responding officer testified that the victim described both men as having “braid hair
styles.” The man with the gun wore a light colored shirt and jeans and had something black on
his shoulder; and the other was skinnier and wore a dark shirt and dark pants. He testified that
the victim described the men as being between 5’6” and 5’10” in height, although his report
indicated that she had described them as being from 5’10” to 5’11” in height. She also told him
that she had earlier seen the men at the gas station where she purchased her food. The victim
testified that she had noticed the two men who robbed her while she was in the store because the
man with the gun had been next to her when she paid. The officer reviewed security footage
from the gas station and identified two men in the video who matched the victim’s description of
the perpetrators.

        Defendants were detained at the apartment complex an hour and a half to two hours after
the robbery. Officers identified them as the men in the gas station security footage; however,
they were not wearing the same clothing. Isom had an apartment in the complex, which officers
searched with his permission. They found a blue bag, .38 caliber bullets, a gun lock, and a
“corner baggie” containing a substance that tested positive for cocaine. Neither a firearm nor the
victim’s money or effects were ever recovered. Johnson admitted to officers that he had stayed
the night at Isom’s apartment; in an interview with police, he denied having gone to the gas
station, but later admitted that he, in fact, had gone there after he was shown a picture from the
security video.

        We review a challenge to the sufficiency of the evidence de novo to determine whether
the evidence, when viewed in the light most favorable to the prosecution, could permit a rational
trier of fact to find the essential elements of the charged offense proved beyond a reasonable
doubt. People v Roper, 286 Mich App 77, 83; 777 NW2d 483 (2009); see also See People v
Wolfe, 440 Mich 508, 513-514; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). As
noted, defendants only argue that they did not participate in the robbery, not that the robbery did
not occur. Identity is an element of every offense. People v Yost, 278 Mich App 341, 356; 749
NW2d 753 (2008). The prosecution may prove identity through direct or circumstantial
evidence. People v Kern, 6 Mich App 406, 409-410; 149 NW2d 216 (1967). This Court applies


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the same standard of review to a trial court’s decision to deny a motion for a directed verdict.
People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006).

        At trial, the victim positively identified Johnson as the man who held the gun to her chest,
which was sufficient by itself to support the identity element. See People v Davis, 241 Mich
App 697, 700; 617 NW2d 381 (2000). Johnson challenges her credibility, but we do not
interfere with the jury’s role in evaluating a witness’s credibility, even if the witness’s testimony
is vague or inconsistent. People v Mehall, 454 Mich 1, 6; 557 NW2d 110 (1997); see also Wolfe,
440 Mich at 514-515. We may only disregard testimony when it has been deprived of all
probative value or is such that a rational jury could not believe it. People v Lemmon, 456 Mich
625, 645-646; 576 NW2d 129 (1998).

        The victim described the robbers as having braided hair. Johnson and Isom both had
braided hair. She described the man in white, Johnson, as being chunkier and dark-skinned.
Both of those descriptions are relative and are influenced by the conditions attending the
witness’s observation, such as clothing and lighting, and involve some level of subjectivity. A
reasonable jury could conclude that her description of Johnson was accurate under the totality of
the circumstances. There was also some testimony that the victim described one of the robbers
as being shorter—5’3”—but there was also testimony that she stated that they were
approximately 5’10” in height. She also indicated that the man who held her arms wore black,
whereas Isom was wearing blue in the videos. The variations in her statements and any
discrepancies between her original description and the video evidence were not so significant
that this Court would be justified in disregarding her testimony and were certainly all presented
to the jury.

         The victim admitted that she did not see the face of the man who grabbed her from
behind, and she was unable to pick anybody out of a six-person lineup she viewed after the
robbery. However, she also testified that the men who robbed her were the same men she saw at
the store. An officer testified that she told him that same thing when he responded to the call
about a robbery just minutes after the event. She described the men and, although there were
some discrepancies, Johnson and Isom’s appearance matched her description. The victim
testified that the men ran off toward the River Terrace Apartments after the robbery, and an
officer testified that Johnson and Isom were arrested at the apartments about an hour and a half
to two hours later. There was ample evidence that Isom was at the store when the victim was
present making her purchases, apparently arriving at the same time as Johnson and exchanging a
look with Johnson as they left. Additionally, the evidence indicates that she had some
opportunity to observe the man as he ran up to her and ran away, at least sufficient to match
general characteristics with that of a person at the gas station notwithstanding misidentifying
blue clothing as black. Defendants’ change of clothing shortly after their presence at the gas
station and after the robbery might have an innocent explanation, but a rational jury could also
reasonably infer that they did so for the purpose of evading arrest by altering their appearances.
See People v Kowalski, 489 Mich 488, 509 n 37; 803 NW2d 200 (2011). The jury could also
consider the incongruity of possessing ammunition and a gun lock without a gun as
circumstantially supporting a finding of guilt.

        As noted, defendants do not challenge the occurrence of the armed robbery, only the
identity of the perpetrators. We conclude that adequate evidence was presented for a rational

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trier of fact to find beyond a reasonable doubt that defendants were the two men who committed
the armed robbery. Roper, 286 Mich App at 83; Kern, 6 Mich App at 409-410. Accordingly, the
trial court did not err when it denied Isom’s motion for a directed verdict. Gillis, 474 Mich at
113.

        Johnson additionally argues that the prosecution failed to present sufficient evidence to
allow a rational jury to find beyond a reasonable doubt that an actual firearm was involved in the
robbery. Felony-firearm and felon-in-possession both require a real firearm, defined as “any
weapon which will, is designed to, or may readily be converted to expel a projectile by action of
an explosive.” MCL 750.222(e). The firearm need not be operable, but it must, in relevant part,
have been intended or capable of expelling a projectile by action of an explosive. See People v
Humphrey, 312 Mich App 309, 318-319 n 4; 877 NW2d 770 (2015); Roper, 286 Mich App at
83. Johnson points out that the victim admitted to having no knowledge about guns, and argues
that no independent evidence suggested that the gun used was not, say, a BB gun, cap pistol,
airsoft pistol, or inert replica. However, the nature of a weapon can be established through a
victim’s testimony alone. People v Hayden, 132 Mich App 273, 296; 348 NW2d 672 (1984); see
also, e.g., People v Davis, 216 Mich App 47, 53-54; 549 NW2d 1 (1996). Her lack of
knowledge of guns affects the weight of her testimony, but not its relevance. See People v Way,
303 Mich 303, 306; 6 NW2d 523 (1942).

        The evidence clearly indicates that the victim believed the gun to be a “real” firearm. See
MCL 750.222(e). Significantly, there was ample evidence that Johnson had access to a “real”
firearm. As noted, possession of ammunition and a gun lock are incongruous in the absence of a
gun. As such, a reasonable jury could infer that there was an actual firearm in Isom’s apartment
at some point. The testimony and evidence that Johnson was with Isom during the events at
issue and that he admitted to spending the previous night at Isom’s apartment permitted an
inference that he had access to that weapon. The jury could also infer that the officers did not
find the weapon to which the lock and ammunition belonged because Johnson and Isom hid or
disposed of it after the robbery. See People v Hardiman, 466 Mich 417, 428; 646 NW2d 158
(2002) (stating that circumstantial evidence may give rise to multiple inferences and those
inferences may even give rise to further inferences). Accordingly, there was testimony and
circumstantial evidence that would permit a rational jury to find beyond a reasonable doubt that
Johnson possessed a firearm during the commission of the robbery, see Roper, 286 Mich App at
83, which satisfied the firearm element of both felony-firearm and felon-in-possession. See
MCL 750.227b(1); MCL 750.224f(1).

       Because there was sufficient evidence to establish Johnson’s identity as one of the
perpetrators and to establish that he carried or possessed a firearm, the trial court did not err
when it denied Johnson’s motion for a directed verdict on these grounds. Gillis, 474 Mich at
113.

       Defendants both also argue that the trial court erred in granting the prosecution’s motion
to consolidate their charges for a single trial. We review the trial court’s ultimate decision
whether to join or sever multiple defendants’ trials for an abuse of discretion. People v Hana,
447 Mich 325, 346; 524 NW2d 682 (1994). We review de novo any underlying interpretation of
the law or court rules, and we review for clear error any underlying factual determinations.
People v Williams, 483 Mich 226, 231; 769 NW2d 605 (2009). A trial court necessarily abuses

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its discretion when it premises its decision on an error of law. People v Waterstone, 296 Mich
App 121, 132; 818 NW2d 432 (2012). However, even if the trial court erred, it would not be
grounds for reversal unless “it affirmatively appears that it is more probable than not that the
error was outcome determinative.” Williams, 483 Mich at 243-244.

        As an initial matter, the trial court clearly was not permitted to join Isom’s cocaine
possession charge with Johnson’s trial under MCR 6.121(A). Under MCR 6.121(A)(1),
defendants were not both charged with that offense. Under MCR 6.121(A)(2), Isom’s cocaine
charge was based on a purely incidental discovery totally unrelated to the acts involved in the
robbery or firearms charges, so there is no basis to conclude that it was “related.” See, e.g.,
People v Beets, 105 Mich App 350, 353; 306 NW2d 508 (1981). However, although the
evidence of the cocaine was irrelevant to any of Johnson’s charges and thus inadmissible against
him, see MRE 401 and 402, it was not in fact admitted against him, and any minimal prejudice it
might have caused could have been cured by an instruction to the jury. See People v Pinkney,
316 Mich App 450, 476-477; 891 NW2d 891 (2016). We are unable to discern how joinder of
the cocaine charge could even possibly have prejudiced Isom on that charge. This error was
clearly harmless.

        Otherwise, the remaining offenses are obviously related and we find the trial court clearly
was empowered to join the trials. Defendants nevertheless argue that they were prejudiced such
that the trial court’s decision was an abuse of discretion. We disagree.

        Johnson argues that the consolidation undermined the evidence that the victim was
unable to pick him out of a lineup, and the jury might have conflated him with Isom and thereby
ignored the evidence that the victim could not identify him. Conversely, Isom argues that the
identification evidence against Johnson was stronger and would mostly not have been admissible
against him at a solo trial, and Johnson’s prior conviction also likely prejudiced him. We
disagree with both defendants.

         Both defendants appeared in the video taken from the gas station. Both defendants were
described as participating in the robbery. Both were arrested at the same apartment complex
after both having changed their clothing. There was testimony that they shared an apartment
together the prior night. We find that they were so closely linked to each other and to the
robbery at so many points that any testimony and evidence tending to identify either of them
would have tended to make it more probable that the other was involved in the robbery, and thus
inexorably would have been relevant and admissible against the other, irrespective of whether
they were codefendants. Thus, the identification testimony actually adduced at their
consolidated trial would have been the same had they been tried separately. The consolidated
trial did not undermine either defendant’s ability to challenge identification evidence.

         Johnson further fails to explain how the presentation of that evidence undermined the
evidence that the victim could not pick him out from a lineup. The evidence that the victim was
unable to see the man who grabbed her from behind during the commission of the robbery and
yet still identified that man as one of the men she saw in the gas station supported Johnson’s
argument that her identification of him as the man with the gun might be mistaken. Stated
another way, the weaknesses attending the victim’s identification of Isom lent plausibility to
Johnson’s argument that her identification of him was also mistaken. Given Johnson’s

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admission that he spent the prior night at Isom’s apartment, the gun lock and ammunition would
also have been admissible against him in any event, because it tended to make it more probable
that Johnson had a weapon and that the weapon was a firearm within the meaning of MCL
750.222(e). See MRE 401; MRE 402. Other than the evidence of the cocaine addressed above,
neither party could have been prejudiced by the consolidation, so the trial court did not err in
granting the consolidation or in sua sponte severing the trials.

        Johnson next argues that the trial court violated the ex post facto clauses of the United
States Constitution and the Michigan Constitution by applying the decision in People v
Lockridge, 498 Mich 358; 870 NW2d 502 (2015), to his sentencing. This Court has already
established that the retroactive application of the rule stated in Lockridge to a defendant’s
sentencing does not amount to an improper ex post facto law. See People v Richards, 315 Mich
App 564, 587; 891 NW2d 911 (2016), appeal held in abeyance ___ Mich ___ (2017). The Court
also recognized that the federal circuit courts have held that retroactive application of the remedy
provided in United States v Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621 (2005), which
our Supreme Court adopted for Michigan’s sentencing scheme, does not amount to a violation of
the prohibition against ex post facto laws. Richards, 315 Mich App at 587-588, citing United
States v Barton, 455 F3d 649, 657 (CA 6, 2006). Accordingly, Johnson has not shown that the
trial court violated the prohibition against ex post facto laws when it applied the remedy stated in
Lockridge to his sentencing.

        Nevertheless, even if they are now only advisory, trial courts must still properly score the
guidelines and must consider them when sentencing a defendant. Lockridge, 483 Mich at 391,
392 n 28. Johnson argues that the trial court erred in scoring offense variable (OV) 4 and OV 14.
“When calculating the sentencing guidelines, a court may consider all record evidence, including
the contents of a [presentence investigation report or] PSIR, plea admissions, and testimony
presented at a preliminary examination.” People v McChester, 310 Mich App 354, 358; 873
NW2d 646 (2015). It may also consider a victim impact statement in a PSIR or other statement
or letter submitted to the court for consideration on sentencing. See, e.g., People v Earl, 297
Mich App 104, 109-110; 822 NW2d 271 (2012). Further, the trial court may properly rely on
inferences that arise from the record evidence when making the findings underlying its scoring of
offense variables. Id. at 109.

        Ten points should be scored under OV 4 if “[s]erious psychological injury requiring
professional treatment occurred to a victim.” MCL 777.34(1)(a). Evidence that a victim
suffered “‘personality changes, anger, fright, or feelings of being hurt, unsafe, or violated’” may
support a trial court’s finding that a psychological injury was serious and may require treatment.
People v Schrauben, 314 Mich App 181, 182; 886 NW2d 173 (2016), quoting People v
Armstrong, 305 Mich App 230, 247; 851 NW2d 856 (2014). Furthermore, the trial court may
base its finding on its observation of a victim’s demeanor at trial. Id.

         The victim did not address the trial court at Johnson’s sentencing. The prosecutor
indicated that she was present, but stated that she was not “able to speak too much in front of the
Court” because the events have “affected her—her nerves.” The prosecutor represented that she
wanted the court to “know beyond what her additional victim impact statement says, is [that] it—
it affected her life so much, in her words.” At that time, the trial court also had her victim impact
statement. Although she indicated “N/A” under the section for emotional injury in that

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statement, she also stated that she was “deathly afraid, when they grabbed me and put the gun to
my chest.” She said that she was “just beyond scared,” she just “froze,” and did not know what
to do “besides scream for help.” The prosecutor submitted another victim impact statement in
which she provided additional details on the psychological harm she suffered. She related that
she has been nervous and that her nerves now “get the worst of me.” She said she always
“makes sure of [her] surroundings,” she was “scared of leaving the house,” which makes it hard
because she has a teenaged daughter. She stated that she also makes sure that someone comes
with her when she goes out and constantly looks around to make “sure no one is going to hurt
me.” This evidence was adequate to establish by a preponderance of the evidence that the victim
suffered a serious psychological injury. People v Hardy, 494 Mich 430, 438; 835 NW2d 340
(2013); People v Bryant, 491 Mich 575, 595; 822 NW2d 124 (2012). Therefore, it did not err
when it assessed 10 points under OV 4. See MCL 777.34(1)(a).

         Ten points should be scored under OV 14 if a defendant “was a leader in a multiple
offender situation.” See MCL 777.44(1)(a). The evidence at trial showed that Johnson
positioned himself near the victim when she made her purchases, followed her as she left,
apparently observed where she proceeded, returned to the gas station to apparently consult Isom,
left the store with Isom, and held the gun. Johnson argues that the evidence could be construed
in such a way that it would not suggest him to be the leader. That may be true, but it is not
relevant that such a construction is possible. The evidence is sufficient to indicate that Johnson
provided direction to Isom, held the firearm, and was the person who took the initiative to
evaluate the victim for the robbery. There was adequate evidence to establish by a
preponderance of the evidence that Johnson was the leader, irrespective of whether it might also
be possible to look at the evidence in another way. Hardy, 494 Mich at 438. The trial court did
not clearly err when it found that Johnson was the leader in a multiple offender situation and
assessed 10 points under OV 14 on that basis. Bryant, 491 Mich at 595.

        Johnson next argues that he received ineffective assistance of counsel at trial. We
disagree. A claim of ineffective assistance of counsel requires a showing that counsel
objectively performed below what prevailing professional norms would consider reasonable and
that the outcome of the proceedings likely would have been different but for counsel’s deficient
performance. People v Gioglio (On Remand), 296 Mich App 12, 21-22; 815 NW2d 589 (2012),
vacated in part on other grounds, 493 Mich 864 (2012). Because no evidentiary hearing was
held, our review is limited to mistakes apparent on the record. Id. at 20. Johnson argues that
counsel had no legitimate strategic reason to ask the victim whether the perpetrator who had the
gun was in the courtroom or for failing to object to the admission of the evidence that a gun lock,
ammunition, and cocaine were found in Isom’s apartment.

        “The fact that the strategy chosen by defense counsel did not work does not constitute
ineffective assistance of counsel.” People v Williams, 240 Mich App 316, 332; 614 NW2d 647
(2000). We are required to presume that counsel had a sound strategic reason for any given
conduct and entertain any reasonable explanation consistent with the evidence. Gioglio, 296
Mich App at 22-23. Johnson argues that counsel had already elicited testimony that the victim
could not identify Johnson at a lineup and evidence that her descriptions of the robbers were not
wholly consistent with Johnson’s and Isom’s actual appearances. Johnson’s argument, in effect,
is that counsel should have “quit while he was ahead.” To the contrary, a reasonable attorney
could have properly concluded that there was a significant probability that she would be unable

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to identify Johnson at trial or, in the alternative, that she might indicate that Isom was the man
with the gun. Either situation would benefit Johnson’s defense of mistaken identity and might
even be decisive at trial. Whether to risk the question under these circumstances was a matter of
trial strategy. People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008).

         As already discussed, the evidence of the gun lock and ammunition would have been
admissible against Johnson even if he had had a separate trial. Counsel cannot be faulted for
failing to raise a futile objection or for failing to make a meritless argument. People v Moorer,
262 Mich App 64, 76; 683 NW2d 736 (2004). Although the evidence of the cocaine would have
been inadmissible against Johnson in a separate trial, it was clearly admissible during the trial at
issue. For that reason, Johnson’s trial counsel had no obligation to object. Id. Moreover, a
reasonable trial counsel in Johnson’s lawyer’s position could conclude that addressing the
cocaine evidence or asking the trial court to provide a specific instruction on the evidence would
bring unwanted attention to the drug evidence. Because the primary issue for Johnson’s lawyer
involved the identification evidence, he could reasonably choose not to discuss the cocaine
evidence or object to its admission at trial. For the same reason, he could concentrate his
opposition to the motion for joinder on the potential prejudice to his ability to challenge the
identification evidence rather than on the minimal prejudice that might be caused by the
admission of the cocaine evidence against Isom. Because there was a legitimate strategic reason
for trial counsel’s handling of the cocaine evidence, on this record, we cannot conclude that his
failure to object or address the cocaine evidence fell below an objective standard of
reasonableness under prevailing professional norms. Gioglio, 296 Mich App at 22-23.

        Johnson failed to identify an act or omission by his trial counsel that fell below an
objective standard of reasonableness under prevailing professional norms.

         Johnson also raises several claims of error in a brief that he submitted on his own behalf
under Administrative Order No. 2004-6, 471 Mich cii. He argues that the prosecutor engaged in
misconduct by mentioning and presenting evidence that he had a prior felony conviction, by
eliciting testimony about the victim’s statements to investigating officers, by eliciting testimony
about his own statements to officers, and by vouching for witnesses and mischaracterizing the
evidence. He similarly argues that the trial court erred when it failed to prevent the erroneous
admission of the testimony and evidence presented by the prosecutor. He similarly maintains
that the trial court erred when it allowed the prosecutor to hold a corporeal lineup before trial and
allowed the victim to identify him as a perpetrator of the robbery at trial. He also reiterates that
the trial court erred in scoring his OVs at sentencing. Finally, Johnson again challenges whether
his trial counsel provided effective assistance. We have carefully considered each of his
additional claims of error and conclude that none have any merit.

       Affirmed in both dockets.

                                                              /s/ Mark T. Boonstra
                                                              /s/ Amy Ronayne Krause
                                                              /s/ Brock A. Swartzle




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