                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    January 12, 2016
               Plaintiff-Appellee,

v                                                                   No. 323661
                                                                    Kalamazoo Circuit Court
DEMARCUS CORNELLIUS FINLEY,                                         LC No. 2013-001293-FC

               Defendant-Appellant.


Before: BOONSTRA, P.J., and SAWYER and MARKEY, JJ.

PER CURIAM.

        Defendant appeals by right his convictions, following a jury trial, of first-degree murder,
MCL 750.316; felon in possession of a firearm, MCL 750.224f; two counts of possessing a
firearm during the commission of a felony (felony-firearm), MCL 750.227b; and possession with
intent to deliver marijuana, MCL 333.7401(2)(d)(iii). The trial court sentenced defendant as a
fourth-offense habitual offender, MCL 769.12, to life imprisonment for the murder conviction; 5
to 15 years’ imprisonment for the felon in possession of a firearm and possession with intent to
deliver marijuana convictions; and two years’ imprisonment for the felony-firearm convictions.
The judgment of sentence indicates that defendant’s felony-firearm sentences are concurrent and
precede the other three sentences, which are concurrent. We affirm defendant’s convictions, but
remand for correction of the judgment of sentence.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

         Defendant’s convictions arise out of the murder of Lionel Lopez on August 23, 2013 near
the intersection of Stockbridge Avenue and Race Street in Kalamazoo, Michigan. Witnesses
testified to a fight involving several people at that location. Vianka Walton and Jacinta Gallegos,
the victim’s brother and niece, respectively, testified that the fight began when one of the men
walking with defendant threw a beer can through the window of Walton’s car, striking Gallegos
in the mouth.1 Walton stopped her car and Lopez began fighting one of the men accompanying
defendant. Walton testified that two other men accompanying defendant joined the fight.


1
  Although neither Gallegos or Walton clarified this point, this Court assumes from their lack of
testimony concerning broken glass or anything of that nature that the window was open.


                                                -1-
Gallegos also joined the altercation. Walton testified that defendant did not join the fight, but
that she saw defendant walk over to the fight and pull a gun from his pants. He put the gun to
Lopez’s neck and shot Lopez. Gallegos also testified that she saw defendant walking towards
the fight. Gallegos heard a gunshot, and turned to see Lopez lying on the ground, blood rushing
from his neck. Gallegos heard Walton screaming that “it was Dreads, it was Dreads.” Both
Walton and Gallegos testified that defendant was wearing a red T-shirt and black shorts. Jessica
Moreno, who witnessed the shooting from her car, testified that the shooter had long hair that
was in either braids or dreadlocks, although she described the shooter as wearing a white t-shirt.
Anna Brabant, who witnessed the fight from her apartment window, heard a gunshot and
testified that the person who fired the gun was wearing a red shirt and appeared to African-
American, although she did not recall anything unique about his hair.

         Walton testified that she knew defendant because of her “kid’s father[’s] sister.”
Gallegos testified that defendant was her “aunt’s baby daddy sister’s baby daddy.” Walton and
Gallegos knew that defendant had a twin, whose name was Demetrius. Walton testified that
defendant and Demetrius looked alike but that Demetrius “just don’t have hair.” Demetrius,
whom Walton had seen a couple days earlier, had a “fade” haircut, i.e., short hair. Gallegos
testified that defendant and Demetrius “kind of, [but] not really” looked like each other. The big
difference between them was that Demetrius had a fade haircut and defendant had dreadlocks.
According to Walton, defendant’s nickname on the street was “Dreads.”

        Sergeant Anthony Morgan testified that he learned approximately 30 minutes after the
dispatch call that defendant was a possible suspect and that a possible location for defendant was
an apartment at 530 Denway. When Morgan and Officer Joseph Hutson arrived at the
apartment, which was a 5- to 10-minute drive from the crime scene, Byron Daniels, defendant’s
stepfather, informed them that defendant had just arrived. Morgan found defendant in a
bedroom, and it appeared that defendant was going to leave the apartment through a window.
Defendant was wearing a pair of black shorts underneath a pair of jeans. In a search of the
apartment, Hutson found a .38-caliber revolver containing one fired cartridge and several unfired
cartridges. When defendant was arrested for Lopez’s murder, 49 grams of marijuana were found
on him.

         Dr. Michael Markey, the pathologist who performed an autopsy on Lopez, testified that
Lopez had suffered one gunshot wound in the “left facial, upper neck region,” where the bullet
entered the left side of the face and travelled through to the right shoulder, piercing the larynx,
thyroid, and jugular vein. Although the bullet recovered from Lopez’s shoulder lacked
“individual characteristics,” and Jeff Crump, an expert in firearms identification, could not
determine whether the bullet fired at the victim had been fired from the revolver located in
defendant’s apartment, Crump could not eliminate the possibility that the revolver had fired the
bullet. The bullet had the same “class characteristics” as test shots from the revolver. In
addition, the bullet was the same type of ammunition as the unfired cartridges in the revolver.
Detective Gary Gaudard testified that, according to the report he received from the Michigan
State Police, a match was found between defendant’s DNA and DNA from a swab of the
revolver. Gaudard also testified that Demetrius, who had advised a detective that he was at work
at the time of the killing and who had a fade haircut, was eliminated as a suspect in the murder of
Lopez.


                                                -2-
                           II. SUFFICIENCY OF THE EVIDENCE

        Defendant argues that his convictions for first-degree murder, felon in possession of a
firearm, and felony-firearm are not supported by sufficient evidence. Specifically, he claims that
because only one person, Vianka Walton, identified him as the shooter, and her testimony was
not meaningfully or significantly corroborated by any forensic evidence, and because the
evidence showed that he had a twin, the evidence was insufficient for the jury to find that he was
the person who shot Lopez. We disagree.

       We review de novo a challenge to the sufficiency of the evidence. People v Cline, 276
Mich App 634, 642; 741 NW2d 563 (2007). We view the evidence in a light most favorable to
the prosecution and determine whether a rational trier of fact could have found that the
prosecution proved the elements of the crime beyond a reasonable doubt. Id.

        “The elements of first-degree murder are (1) the intentional killing of a human (2) with
premeditation and deliberation.” People v Bennett, 290 Mich App 465, 472; 802 NW2d 627
(2010), lv den 489 Mich 897 (2011). The elements of felon in possession of a firearm are (1) the
defendant possessed a firearm, (2) the defendant was convicted of a prior specified felony, (3)
less than five years have passed since the defendant successfully completed probation or parole,
completed a term of imprisonment, and paid all fines with regard to the underlying felony, and
(4) the defendant’s right to possess a firearm has not been restored. M Crim JI 11.38a.2 The
elements of felony-firearm are that “the defendant possessed a firearm during the commission of,
or the attempt to commit, a felony.” People v Avant, 235 Mich App 499, 505; 597 NW2d 864
(1999).

        Defendant does not claim that the prosecutor failed to present evidence that the above
offenses were committed. Rather, defendant claims that the evidence was insufficient for the
jury to find beyond a reasonable doubt that he was the person who shot Lopez. Identity is an
element of every crime. People v Yost, 278 Mich App 341, 365; 749 NW2d 753 (2008).

        Two eyewitnesses (Walton and Gallegos) who were familiar with both defendant and his
twin brother identified defendant as the person who had shot Lopez. Further, although there
were some minor discrepancies between Moreno’s and Brabant’s testimony, Moreno did testify
that the shooter had long hair that was in either braids or dreadlocks. Additionally, when police
arrived at defendant’s home, his stepfather told them that defendant had just arrived, and it
appeared to Morgan that defendant planned to leave through a window. Evidence of flight,
including running from the police, may indicate a consciousness of guilt. People v Coleman, 210
Mich App 1, 4; 532 NW2d 885 (1995). A gun that fired the same type of bullet that killed Lopez
was found in defendant’s room with one fired cartridge. Gaudard also testified that Demetrius
was eliminated as a suspect in the investigation.


2
 “The prosecutor must prove that the defendant’s right to possess a firearm has not been restored
only if the defendant produces some evidence that his right has been restored.” People v
Perkins, 262 Mich App 267, 271; 686 NW2d 237 (2004), abrogated on other grounds People v
Smith-Anthony, 494 Mich 669 (2013).


                                               -3-
       Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact
could have found that the prosecution proved beyond a reasonable doubt that defendant was the
person who shot Lopez. Cline, 276 Mich App at 642. The jury could thus necessarily find that
defendant possessed a firearm during the commission of this felony. Avant, 235 Mich App at
505. The parties conceded that defendant had a prior felony conviction that made it illegal for
him to carry a firearm. Therefore, defendant’s convictions for first-degree murder, felon in
possession of a firearm, and felony-firearm are supported by sufficient evidence.

                             II. ADMISSION OF PHOTOGRAPH

        Defendant next argues that the trial court erred when it admitted the prosecution’s trial
exhibit 46, a picture depicting the gunshot wound to Lopez’s head. We disagree.

        We review a trial court’s evidentiary decisions for an abuse of discretion. People v
Unger, 278 Mich App 210, 216; 749 NW2d 272 (2008). A trial court abuses its discretion when
its decision falls outside the range of reasonable and principled outcomes. Id. at 217.

        Generally, relevant evidence is admissible. MRE 402; People v Roper, 286 Mich App
77, 91; 777 NW2d 483 (2009). Evidence is relevant if it has “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 401. When a defendant pleads not
guilty, the prosecutor must prove all elements of the offense beyond a reasonable doubt,
regardless whether the defendant specifically disputes or offers to stipulate to any of the
elements. People v Mills, 450 Mich 61, 69-70; 537 NW2d 909 (1995). “Thus, the prosecutor
may offer all relevant evidence, subject to MRE 403, on every element.” Id. at 71. Photographs
are not excludable simply because a witness can testify to the information contained in them. Id.
at 76. Photographs may be used to corroborate a witness’s testimony. Id. at 72-73, 76.

        Because defendant was charged with murder and because defendant pleaded not guilty,
the prosecutor had to prove beyond a reasonable doubt that defendant killed Lopez. See People
v Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010). Exhibit 46 had a tendency to make
the existence of the fact that Lopez was killed more probable. MRE 401. Additionally, exhibit
46 corroborated the testimony of Walton, who testified that defendant put a gun to Lopez’s neck
and shot Lopez, and of Moreno, who testified that the man with the gun shot Lopez. Further,
exhibit 46 clearly showed the location of the gunshot wound. The location of the wound was
relevant to whether defendant acted with premeditation. See People v Berry (On Remand), 198
Mich App 123, 128; 497 NW2d 202 (1993). Exhibit 46 was relevant.

         Even if relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice. MRE 403. All relevant evidence is prejudicial to
some extent, People v Murphy (On Remand), 282 Mich App 571, 582; 766 NW2d 303 (2009),
but it is only evidence that is unfairly prejudicial that should be excluded, People v McGhee, 268
Mich App 600, 613-614; 709 NW2d 595 (2005). “Unfair prejudice may exist where there is a
danger that the evidence will be given undue or preemptive weight by the jury or where it would
be inequitable to allow use of the evidence.” People v Blackston, 481 Mich 451, 462; 751 NW2d
408 (2008). Gruesomeness alone need not result in exclusion. Mills, 450 Mich at 76.


                                               -4-
        Exhibit 46 is arguably gruesome; it is a color photograph that shows a gunshot wound to
the left side of Lopez’s face and there is some blood around the wound. However, after
reviewing the photograph, we agree with the trial court that the exhibit is not “excessively
graphic” or “so shocking” as to shock the jury’s conscious or inflame its passion. It is not
beyond what one would expect to see in a murder trial where the victim was shot in the neck and
face area. There was no danger that the jury would give exhibit 46 undue or preemptive weight,
nor was it inequitable to allow the prosecutor to use it. Blackston, 481 Mich at 462. The trial
court’s decision that the probative value of exhibit 46 was not substantially outweighed by the
danger of unfair prejudice fell within the range of reasonable and principled outcomes. Unger,
278 Mich App at 217. Therefore, the trial court did not abuse its discretion in admitting exhibit
46.

                               III. PROSECUTORIAL ERROR3

       Defendant argues that the prosecutor erred when, during closing argument, he compared
defense counsel to a magician, who waves a hand in the air to distract the audience from seeing
the magician pull a rabbit out of a hat. Because defendant made no objection to the
prosecution’s statements at trial, we review this unpreserved claim for plain error affecting
substantial rights. People v Ackerman, 257 Mich App 434, 448; 669 NW2d 818 (2003).

        The test for prosecutorial error is whether the defendant was denied a fair and impartial
trial. People v Mesik (On Reconsideration), 285 Mich App 535, 541; 775 NW2d 857 (2009).
The prosecution may not suggest that defense counsel is intentionally attempting to mislead the
jury. People v Watson, 245 Mich App 572, 592; 629 NW2d 411 (2001). The prosecution also
may not shift the burden of proof. People v Fyda, 288 Mich App 446, 463-464; 793 NW2d 712
(2010). The prosecution’s remarks must be considered on a case-by-case basis and in light of the
defense arguments. People v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004). An
otherwise improper remark by the prosecution may not rise to an error requiring reversal when
the prosecution is responding to the defense counsel’s argument. People v Kennebrew, 220 Mich
App 601, 608; 560 NW2d 354 (1996).

       Here, defendant alleges that the prosecution erred in making the following statement:

       Ask yourself why? How could this have happened? Where is the receipt for
       Vianka Walton’s Western Union transaction? How come Lieutenant Crump used
       the phrase consistent with? The Defense has given you questions; I am giving
       you answers.



3
  As this Court recently noted in People v Cooper, 309 Mich App 74, 87–88; 867 NW2d 452
(2015), although the term “prosecutorial misconduct” has become a term of art often used to
describe any error committed by the prosecution, claims of inadvertent error by the prosecution
are “better and more fairly presented as claims of ‘prosecutorial error,’ with only the most
extreme cases rising to the level of ‘prosecutorial misconduct.’ ” Defendant expressly presents a
claim of prosecutorial error.


                                               -5-
              He says that he doesn’t want you to make my case for me, I don’t want
       you to do that either; but I don’t want you to make his.

              He doesn’t want you to make my case, but he wants to throw out all these
       questions that have nothing to do with the elements of this case.

                Was there a four shot -- five shot or a six shot gun? Not an element.

                DVR’s, not an element.

                This case is about the evidence that you have, not the evidence that you
       don’t.

              Mr. Champion [defense counsel] is exactly right; I bear the burden in this
       case, beyond a reasonable doubt. He doesn’t have to do anything and you
       couldn’t hold it against him if he didn’t.

              But he did. He asked my witnesses questions. If there was something on
       Officer’s Hutson’s MVR that he thought was important, don’t you think that he
       would have added that to his questioning?

               Sometimes a magician, when they want to do something great with his
       hand will waive [sic] this hand in the air so you don’t see them pull the rabbit out
       of the hat, the card out of the sleeve -- whatever -- that is what he is doing. He is
       not talking about the elements. He is not talking about premeditation,
       deliberation, intent. He is talking about which way the car went when they pulled
       out of the driveway or where is this DVR[4] or where is that recording or why
       didn’t you hear three different witnesses say that the Defendant made a statement
       to the police that he wasn’t at the scene instead of just one. That is why he is not
       talking about the evidence. That is why he is not talking about the elements.

               One of the things he said that it is the Prosecutor’s job to prove the case.
       Maybe in the friendliest of terms that is true, but it is not -- I don’t think it is my
       job to prove the case; it is my job to prove the elements of the case.

       The challenged remark, looked at in the abstract, could be interpreted as a suggestion that
defense counsel was intentionally attempting to mislead the jury. However, the remark, which
was made in rebuttal during closing argument, was a response to defense counsel’s argument that
the police had failed to conduct a thorough investigation and that evidence had been withheld
from the jury. The prosecution told the jury that the questions raised by defense counsel in his
closing argument did not affect whether the evidence that was presented during trial established
the elements of the charged crimes. And, throughout the remainder of its closing rebuttal


4
 The term “DVR” or “MVR” appears to refer to video recordings from cameras affixed to the
vehicles of police officers who responded to the altercation and shooting.


                                                -6-
argument, the prosecution argued that all the evidence proved beyond a reasonable doubt that
defendant was the person who shot Lopez. Because the prosecution’s remark was in response to
defense counsel’s closing argument, the remark was not improper. Thomas, 260 Mich App at
454; Kennebrew, 220 Mich App at 607. Additionally, the remark did not shift the burden of
proof. We find no error requiring reversal in the prosecution’s statement.

       Additionally, even if the prosecution’s statements were improper, a timely objection and
curative instruction could have alleviated any prejudicial effect. See Unger, 278 Mich App at
237. The trial court, following closing arguments, instructed the jury that defendant was
presumed innocent; defendant was not required to prove his innocence, the prosecutor had the
burden of proof to prove each element of the charged crimes beyond a reasonable doubt; it could
only consider the evidence that was presented; and the lawyers’ statements were not evidence.
Jurors are presumed to follow their instructions. People v Abraham, 256 Mich App 265, 279;
662 NW2d 836 (2003). Any error in the prosecution’s statements was thus harmless.

                              IV. CONSECUTIVE SENTENCING

       Defendant argues that, because the predicate felonies for the felony-firearm charges were
murder and felon in possession of a firearm, the trial court erred when it ordered that his sentence
for possession with intent to deliver marijuana be consecutive to his felony-firearm sentences.
The prosecution concedes this error, and we agree. See People v Clark, 463 Mich 459, 463-464;
619 NW2d 538 (2000). We remand so that the judgment of sentence can be corrected to reflect
that defendant’s sentence for possession with intent to deliver marijuana be concurrent to his
sentences for felony-firearm.

                          V. DEFENDANT’S STANDARD 45 BRIEF

        In his Standard 4 brief, defendant argues that the trial court erred when it failed to grant
him a new trial after a juror revealed that, upon hearing Lopez’s street name during testimony, he
realized that he was familiar with Lopez. However, because defense counsel expressed
satisfaction with the trial court’s decision to excuse Lopez from the jury, this claim of error is
waived. See People v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011); People v Carter,
462 Mich 206, 215; 612 NW2d 144 (2000). However, we consider this claim in the context of
defendant’s claim of ineffective assistance of counsel.

        Defendant argues that defense counsel was ineffective for failing to move for a mistrial
after the juror’s disclosure. We disagree. To establish a claim for ineffective assistance of
counsel, a defendant must show that counsel’s performance fell below objective standards of
reasonableness and that, but for counsel’s deficient performance, there is a reasonable probability




5
 A supplemental brief filed by a defendant in propria persona in accordance with Administrative
Order 2004-6.


                                                -7-
that the result of the proceedings would have been different. People v Uphaus (On Remand),
278 Mich App 174, 185; 748 NW2d 899 (2008).6

        A defendant has a constitutional right to be tried by an impartial jury. People v Rose, 289
Mich App 499, 529; 808 NW2d 301 (2010). “A trial court should grant a mistrial only for an
irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a fair
trial.” People v Schaw, 288 Mich App 231, 236; 791 NW2d 743 (2010) (quotation omitted). A
mistrial is appropriate only when the prejudice to the defendant can be removed in no other way.
People v Horn, 279 Mich App 31, 36; 755 NW2d 212 (2008). Once the juror disclosed that he
was familiar with Lopez, the prejudice to defendant could be removed in a way other than the
declaration of a mistrial: the juror could be, and was, excused from the jury. Nothing in the
record indicates that the juror’s familiarity with Lopez rendered the jurors who decided
defendant’s guilt impartial. There is no indication that the juror informed other jurors of his
familiarity with Lopez, nor is there any indication that the jurors ever discussed the case before
deliberations began. The trial court instructed the jurors that they were not to discuss the case
with each other until it was time for them to decide the case. Jurors are presumed to follow their
instructions. Abraham, 256 Mich App at 279. Because any prejudice to defendant resulting
from the juror’s familiarity with Lopez was removed by excusing the juror from the jury, a
motion for a mistrial would have been futile. Defense counsel was not ineffective for failing to
make such a futile motion. People v Fike, 228 Mich App 178, 182; 577 NW2d 903 (1998).

        Next, defendant argues that defense counsel was ineffective for failing to adequately
investigate his case. Specifically, defendant claims that had defense counsel performed an
adequate investigation, counsel would have discovered surveillance video that contradicted the
testimony of Moreno regarding the man who shot Lopez. Because the record does not indicate
that there was any relevant video surveillance on August 23, 2013, defendant has failed to
establish the factual predicate for his claim. People v Hoag, 460 Mich 1, 6; 594 NW2d 57
(1999).

        Defendant also argues that defense counsel was ineffective because he failed to present
expert testimony regarding the reliability of eyewitness identification. Regardless whether such
testimony is admissible under MRE 702, the failure to call a witness only constitutes ineffective
assistance of counsel if it deprived the defendant of a substantial defense, People v Russell, 297
Mich App 707, 716; 825 NW2d 623 (2012), which is one that might have made a difference in
the outcome of trial, People v Ayres, 239 Mich App 8, 22; 608 NW2d 132 (1999). The record
contains no evidence regarding how an expert in the reliability of eyewitness identification
would have testified at trial, much less does it establish that expert testimony would have been
favorable to defendant. Thus, defendant has not shown that defense counsel’s failure to call an
expert witness deprived him of a substantial defense.



6
  Because defendant did not move for a new trial or an evidentiary hearing based on claims of
ineffective assistance of counsel, our review of defendant’s ineffective assistance claims is
limited to mistakes apparent on the record. People v Heft, 299 Mich App 69, 80; 829 NW2d 266
(2012).


                                                -8-
        Defendant next argues that Gallegos’s testimony that defendant was the person who shot
Lopez was based on inadmissible hearsay. We review this unpreserved claim of evidentiary
error for plain error affecting substantial rights. People v Benton, 294 Mich App 191, 202; 817
NW2d 599 (2011).

         “ ‘Hearsay’ is a statement, other than the one made by the defendant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(d).
Hearsay is not admissible except as provided by the rules of evidence. MRE 802. Because
Gallegos’s testimony indicates that she did not actually see defendant shoot Lopez, one could
reasonably conclude that Gallegos’s knowledge regarding who killed Lopez was based on an
out-of-court statement. And, there was evidence that Gallegos heard an out-of-court statement
from Walton that it was defendant who had shot Lopez. Gallegos testified that, after she heard
the gunshot, she heard Walton yelling that “it was Dreads.” This out-of-court statement by
Walton, however, was admissible as a present sense impression, MRE 803(1); People v
Chelmicki, 305 Mich App 58, 63; 850 NW2d 612 (2014), and as an excited utterance,
MRE 803(2); People Smith, 456 Mich 543, 550; 581 NW2d 654 (1998). Further, Gallegos
testified that she did not see the shooting but only heard the gunshot and turned to see that Lopez
had been shot. There was no plain error. Benton, 294 Mich App at 202. Because Gallegos’s
testimony that it was defendant who had shot Lopez was not based on inadmissible hearsay,
defendant’s claim that defense counsel was ineffective for failing to object to Gallegos’s
testimony is without merit. A hearsay objection would have been futile, and counsel was not
ineffective for failing to make a futile objection. Fike, 228 Mich App at 182.

       Next, defendant argues that defense counsel was ineffective for failing to impeach
Walton with a statement she allegedly made to police that, after defendant threw a beer can at her
car, Lopez and defendant got into a fight and, while fighting, defendant shot Lopez. However,
nothing in the record indicates that Walton did, in fact, make this statement to police.
Accordingly, defendant has failed to establish the factual predicate for his claim. Hoag, 460
Mich at 6. Defendant’s claim is without merit.

        Finally, defendant argues that the trial court erred when it failed to sever the marijuana
charge from the murder and weapons charges. We review this unpreserved claim for plain error
affecting substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

        “On the defendant’s motion, the court must sever for separate trials offenses that are not
related as defined in subrule (B)(1).” MCR 6.120(C). Even if the marijuana charge was not
related to the murder and weapons charges, the trial court was not required to sever it for a
separate trial, because defendant did not move to sever the marijuana charge. A trial court’s
obligation to sever charges only arises on the defendant’s motion. Id. Nonetheless, under
MCR 6.120(B), a trial court may sever offenses charged in a single information against a single
defendant “when appropriate to promote fairness to the parties and a fair determination of the
defendant’s guilt or innocence of each offense.” Relevant to this determination are the factors
listed in MCR 6.120(B)(2), which include “the potential for confusion or prejudice stemming
from either the number of charges or the complexity or nature of the evidence” and “the
convenience of witnesses.” Here, the potential for confusion based on the number of charges or
the nature of the evidence was minimal. There were five charges against defendant. Four of the
charges, the murder, felon in possession of a firearm, and felony-firearm charges were generally

                                                -9-
based on the evidence regarding the murder of Lopez, and none of the evidence admitted at trial
was of a complex nature. In additional, every witness who gave testimony that concerned the
marijuana found on defendant also provided testimony that was relevant to the question whether
defendant was the person who shot Lopez. Under these circumstances, the trial court did not
plainly err in failing to sever the marijuana charge for a separate trial. Carines, 460 Mich at 763.
Further, given the substantial evidence indicating that defendant was the person who shot Lopez,
there is no reasonable probability that, but for defense counsel’s alleged failure to move for a
severance of the marijuana charge, the result of defendant’s trial on the murder and weapons
charges would have been different. Uphaus (On Remand), 278 Mich App at 185.7

      We affirm defendant’s conviction, but remand for correction of the judgment of sentence.
We do not retain jurisdiction.



                                                             /s/ Mark T. Boonstra
                                                             /s/ David H. Sawyer
                                                             /s/ Jane E. Markey




7
 Defendant makes no claim that he would have been acquitted of the marijuana charge had the
marijuana charge been severed from the murder and weapons charges.


                                               -10-
