                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 May 15, 2018
              Plaintiff-Appellee,

v                                                                No. 335253
                                                                 Wayne Circuit Court
ELAZAR ALEXANDER WITHERS,                                        LC No. 16-003026-01-FC

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                                No. 336897
                                                                 Wayne Circuit Court
ELAZAR ALEXANDER WITHERS,                                        LC No. 16-004902-01-FC

              Defendant-Appellant.


Before: CAMERON, P.J., and FORT HOOD and GLEICHER, JJ.

PER CURIAM.

        Defendant appeals as of right his convictions and sentences in two separate cases that
were consolidated for a bench trial. In LC No. 16-003026-01-FC, the trial court convicted
defendant of first-degree criminal sexual conduct (CSC-I), MCL 750.520b, two counts of
second-degree criminal sexual conduct (CSC-II), MCL 750.520c, armed robbery, MCL 750.529,
and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.
The trial court acquitted defendant of an additional charge of kidnapping, MCL 750.349. In LC
No. 16-004902-01-FC, the trial court convicted defendant of armed robbery, felonious assault,
MCL 750.82, and felony-firearm. The trial court sentenced defendant to 15 to 30 years’
imprisonment for the CSC-I and armed robbery convictions, 7 to 15 years’ imprisonment for the
CSC-II conviction, and two to four years’ imprisonment for the felonious assault conviction, to
be served concurrently, but consecutive to two two-year terms of imprisonment for the felony-
firearm convictions. We affirm.



                                              -1-
       Defendant’s convictions arise from two separate incidents that occurred during the early
morning hours of March 18, 2016, in Detroit. In each incident, defendant arranged to meet
another man through an online website for gay men, and then robbed the man after meeting with
him. Defendant also sexually assaulted one of the victims.

        In LC No. 16-003026-01-FC, defendant arranged to meet with LB. After they met, LB
got into defendant’s vehicle and defendant drove to a residential area. Defendant eventually
pulled over to the side of the street, revealed a gun, and then robbed LB of his possessions and
forced him to remove most of his clothing. Defendant also repeatedly demanded LB to give his
personal identification number (PIN) for his bank account. Defendant then took LB to a public
park and sexually assaulted him. Afterward, defendant got back into his car and drove away,
leaving LB at the park. Shortly thereafter, defendant was captured on a bank surveillance video
using LB’s bank card.

       In LC No. 16-004902-01-FC, defendant arranged to meet with CH that same morning.
After defendant got into CH’s vehicle and the two talked for a short period, defendant pulled out
a gun and told CH not to run or defendant would shoot him. CH ignored defendant’s instructions
and ran away, but CH left his personal belongings inside his vehicle, including the keys to the
car. CH’s car was later found, but his personal belongings were gone.

       Defendant testified at trial and admitted meeting two men that morning through an online
website to exchange sex for money, but he denied that he robbed or sexually assaulted anyone.

                                    I. DEFENDANT’S TRIAL

        Defendant argues that he was denied a fair trial due to (1) the improper admission of
other-acts evidence, contrary to MRE 404(b)(1); (2) the admission of irrelevant and prejudicial
evidence that marijuana and a gun magazine were seized during a search of defendant’s
residence; (3) the admission of a police officer’s written summary of defendant’s police
interrogation, which defendant maintains was inadmissible hearsay; (4) improper vouching by an
interrogating police officer; and (5) the improper use of photographic arrays to identify him as
the person who robbed and assaulted LB and CH when he was in custody. Defendant concedes
that none of these issues were raised below, leaving them unpreserved. We review unpreserved
issues for plain error affecting a defendant’s substantial rights. People v Carines, 460 Mich 750,
763-764; 597 NW2d 130 (1999). An error is plain if it is clear or obvious, and an error affects
substantial rights if it is prejudicial, i.e., if it affects the outcome of the proceedings. People v
Jones, 468 Mich 345, 355; 662 NW2d 376 (2003).

        Defendant further argues, however, that defense counsel was ineffective for not objecting
or otherwise raising the foregoing issues in the trial court. Because defendant did not raise the
issue of ineffective assistance of counsel in the trial court, our review of that issue is limited to
mistakes apparent from the record. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342
(2004). To establish ineffective assistance of counsel, defendant must show that counsel’s
performance fell below an objective standard of reasonableness, and that counsel’s
representation so prejudiced defendant that he was denied his right to a fair trial. People v
Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994). Defendant must overcome the presumption
that the challenged action might be considered sound trial strategy. People v Tommolino, 187

                                                -2-
Mich App 14, 17; 466 NW2d 315 (1991). To establish prejudice, defendant must show a
reasonable probability that, but for counsel’s errors, the result of the proceeding would have been
different. People v Johnnie Johnson, Jr, 451 Mich 115, 124; 545 NW2d 637 (1996).

                                 A. OTHER ACTS EVIDENCE

       Defendant first argues that defense counsel was ineffective for failing to object to
references at trial to a third incident, involving CM, which allegedly occurred on the same
morning as the charged offenses. Defendant argues that all references to the incident involving
CM were inadmissible under MRE 404(b)(1), which prohibits evidence of a defendant’s “other
crimes, wrongs, or acts . . . to prove the character of a person in order to show action in
conformity therewith,” but allows such evidence to be introduced for other, noncharacter
purposes.

        The record discloses that, although the prosecutor contemplated presenting CM’s
testimony at trial under MRE 404(b)(1), he never actually did so. However, references to the
incident involving CM were made during defendant’s police interview, which was introduced at
trial. Before that interview was introduced, however, the parties advised the trial court that it
contained references to a third case. The trial court agreed to disregard the inadmissible portions
and consider only the portions that were relevant to the charged offenses.

        There is a “presumption that a trial judge in a bench trial knows the applicable law.”
People v Sherman-Huffman, 466 Mich 39, 43; 642 NW2d 339 (2002). “A judge, unlike a juror,
possesses an understanding of the law which allows him to ignore such errors and to decide a
case based solely on the evidence properly admitted at trial.” People v Taylor, 245 Mich App
293, 305; 628 NW2d 55 (2001) (citation omitted). In this case, defendant’s interview did not
contain any factual information relating to the alleged incident involving CM. Because defense
counsel was aware that defendant was being tried before the court, which was capable of
disregarding any inadmissible content of the interview and had expressly agreed to do so,
defendant has not shown that it was necessary for defense counsel to further object to references
to the alleged offense.

        In addition, there is no merit to defendant’s claim that he was denied his Sixth
Amendment right to confrontation because he was unable to confront CM, his accuser. The
protections of the Confrontation Clause apply “only to statements used as substantive evidence.”
People v Fackelman, 489 Mich 515, 528; 802 NW2d 552 (2011). “[T]he right of confrontation
is concerned with a specific type of out-of-court statement, i.e., the statements of ‘witnesses,’
those people who bear testimony against a defendant.” Id. No statements implicating defendant
were introduced through defendant’s interview. At most, officers only informed defendant that
he was being accused by three men, not two. In addition, defendant was not charged with any
offense involving CM, and the trial court expressly agreed to disregard the portions of the
interview referring to this additional allegation. Accordingly, we reject this claim of error.

                                 B. IRRELEVANT EVIDENCE

       Next, defendant argues that he was prejudiced by the introduction of evidence that a
substance that appeared to be marijuana was observed during a search of defendant’s residence,

                                                -3-
and that a gun magazine was seized during the same search. Defendant argues that this evidence
was irrelevant and unduly prejudicial, and it denied him a fair trial. We disagree.

        As defendant observes, a police officer testified that a photograph of items seized during
a search of defendant’s residence showed a substance that appeared to be marijuana. However,
the officer who tabulated the seized evidence did not list marijuana among the items seized
during the search. Testimony also indicated that a gun magazine was seized during the search of
defendant’s residence. At trial, both victims described the firearm used by defendant as a
revolver. Even if we accept defendant’s argument that the testimony regarding marijuana and
the gun magazine was not relevant under MRE 401, we are not persuaded that appellate relief is
warranted. As indicated, defendant was tried before the trial court, which is presumed to know
the applicable law and to have decided the case based solely on properly admitted evidence.
Sherman-Huffman, 466 Mich at 43; Taylor, 245 Mich App at 305. Because the trial court was
aware that no marijuana was actually seized from defendant’s residence, and would have been
aware that the magazine seized from defendant’s residence was inconsistent with the type of
weapon described by the victims, and because the trial court is presumed to have been able to
disregard any potential prejudicial impact of this evidence, defendant has not demonstrated that
the evidence affected his substantial rights, Jones, 468 Mich at 355, or that he was prejudiced by
counsel’s failure to object to the evidence, Johnson, 451 Mich at 124.

                                   C. HEARSAY EVIDENCE

        Defendant argues that it was improper to admit a police officer’s written summary of
defendant’s police interview because the writing was inadmissible hearsay. He further argues
that defense counsel was ineffective for failing to object to this evidence. Although defendant
argues that the written statement was not admissible under either MRE 803(6) (records of a
regularly conducted activity) or MRE 803(8) (public records and reports), the prosecutor did not
offer, and does not argue on appeal, that defendant’s written statement was admissible under
either of those rules. Instead, the applicable rule is MRE 801(d)(2), which excludes admissions
of a party-opponent from the definition of hearsay. See People v Lundy, 467 Mich 254, 257; 650
NW2d 332 (2002). Defendant argues that the written statement was not admissible under MRE
801(d)(2) because he did not sign it or otherwise adopt it. However, there is no requirement
under MRE 801(d)(2) that a statement be signed in order to be admissible, and the officer
identified the written statement as a condensed version of defendant’s statements during the
interview.

        Furthermore, to the extent that the unsigned written statement could be considered
inadmissible, defendant has not demonstrated that appellate relief is required. First, by expressly
agreeing to the admission of the written statement, defense counsel waived any claim of
evidentiary error. People v Carter, 462 Mich 206, 215-216; 612 NW2d 144 (2000). A waiver
extinguishes any error, leaving no error to review. Id. Second, defendant’s actual recorded
interview was admitted at trial and defendant has not challenged the admissibility of his
statements during that interview. Because the trial court had the benefit of defendant’s own
recorded interview and the written statement was cumulative of the recorded interview,
defendant cannot establish that he was prejudiced by defense counsel’s failure to object to the
written statement. People v Duenaz, 306 Mich App 85, 97; 854 NW2d 531 (2014).


                                                -4-
                D. VOUCHING FOR THE COMPLAINANTS’ CREDIBILITY

        Next, defendant argues that he was denied a fair trial because a police officer’s comments
during his recorded interview improperly vouched for the credibility of the complainants. He
also argues that defense counsel was ineffective for not objecting to the officer’s comments. We
disagree.

         In People v Musser, 494 Mich 337, 353-354; 835 NW2d 319 (2013), the Court placed
restrictions on the admissibility of an interrogator’s comments during an interview, stating:

               [W]e hold that where the proponent of the evidence offers an
       interrogator’s out-of-court statements that comment on a person’s credibility for
       the purpose of providing context to a defendant’s statements, the interrogator’s
       statements are only admissible to the extent that the proponent of the evidence
       establishes that the interrogator’s statements are relevant to their proffered
       purpose. See MRE 401. Even if relevant, the interrogator’s statements may be
       excluded under MRE 403 and, upon request, must be restricted to their proper
       scope under MRE 105. Accordingly, to ensure a defendant’s right to a fair trial,
       trial courts “must vigilantly weed out” otherwise inadmissible statements that are
       not necessary to accomplish their proffered purpose. People v Crawford, 458
       Mich 376, 388; 582 NW2d 785 (1998). To hold otherwise would allow
       interrogations laced with otherwise inadmissible content to be presented to the
       jury disguised as context.

         In this case, the challenged portions of defendant’s interview did not involve any direct
vouching for the credibility of the complainants, but instead involved statements by an officer
that he believed that defendant was involved in or committed the offenses. To the extent that
there were grounds to object to some of the officers’ comments, defendant has not demonstrated
that counsel’s failure to object affected defendant’s substantial rights or that defendant was
prejudiced by counsel’s failure to object. Again, defendant was tried before the court, not a jury.
The trial court is presumed to know the applicable law and to have decided the case based solely
on properly admitted evidence. Sherman-Huffman, 466 Mich at 43; Taylor, 245 Mich App at
305. Nothing in the record suggests that the trial court considered the officers’ comments. On
the contrary, immediately before the interview was introduced, defense counsel requested that
the trial court not consider the officer’s commentary, and the trial court agreed to only consider
defendant’s responses to the questions, not the questions themselves. Accordingly, defendant is
not entitled to appellate relief.

                                E. PHOTOGRAPHIC ARRAYS

        Defendant also argues he was denied his right to a fair trial when the police conducted
photographic arrays with LB and CH, although he was already in custody and could have
participated in a corporeal lineup. We disagree.

       Our Supreme Court has long held that “identification by photograph should not be used
where the accused is in custody.” People v Lee, 391 Mich 618, 624; 218 NW2d 655 (1974). We
acknowledge that the presentence investigation report (PSIR) indicated that a photographic

                                               -5-
lineup was conducted because a corporeal lineup was not possible. However, the PSIR does not
state why that was the case, and the record is not entirely clear as to when defendant was placed
in custody as it concerned the offenses against each of the three original complainants.
According to the PSIR, defendant was only arrested and in custody as to the incident against CM
at the time LB and CH identified defendant in the photographic arrays. The report indicated that
defendant was arrested on March 21, 2016, as it concerned complainant CM.1 As it related to
LB and CH, the report indicated defendant was arrested on March 23, 2016—after the
photographic arrays were administered. This Court has held that if a defendant is in custody on a
different offense, he is not in “custody” as to other offenses where he is merely a suspect, and
therefore, he would not have a right to counsel during the photographic array relating to those
other offenses. People v Wyngaard, 151 Mich App 107, 113; 390 NW2d 694 (1986). We see no
reason why we could not apply this definition of “custody” to a due process challenge regarding
the use of a photographic array to conclude that it was properly administered. See also People v
Perry, 317 Mich App 589, 596-598; 895 NW2d 216 (2016), citing People v Hickman, 470 Mich
602; 684 NW2d 267 (2004) (a photographic identification procedure was proper when the
defendant was in custody on a different matter and adversarial judicial criminal proceedings had
yet to commence on the current case).

        That being said, the record seems to indicate that defendant was not released after March
21 and later brought into custody on March 23. It also indicates that the same detective who
investigated defendant as it related to CM was also the investigator as to the alleged crimes
against LB and CH. In fact, LB and CH participated in the March 21 photographic arrays with
the detective, and therefore, it would appear that defendant was readily available and could
participate in a corporeal lineup pertaining to the alleged crimes against LB and CH. See
Wyngaard, 151 Mich App at 112 (concluding that the defendant’s right to counsel attaches if he
is in custody, readily available, or the focus of an investigation at the time of the lineup).

        Regardless of whether defendant was in custody at the time of the photographic arrays,
there is no basis for concluding that they affected the outcome of defendant’s trial. We agree
with plaintiff that defendant’s identity was not a principal issue in these cases. In his own
testimony, defendant admitted that he contacted two men through an online website and arranged
to meet with them on the morning of the offenses. Apart from the victims’ identification
testimony, defendant was connected to each of the victims through his telephone number and his
internet address. In addition, defendant was captured on surveillance video using LB’s bank
card, and he admitted using the bank card after he met LB, albeit he claimed that he did so with
LB’s consent.

        Furthermore, even if a photographic identification procedure is improper, an in-court
identification is still permitted if a totality of the circumstances indicate that there is an
independent basis for the identification to purge the taint caused by the illegal confrontation.
People v Gray, 457 Mich 107, 115; 577 NW2d 92 (1998); People v Kachar, 400 Mich 78, 97;



1
 Charges related to complainant CM were dismissed because he failed to appear for the court
hearing on June 8, 2016.


                                               -6-
252 NW2d 807 (1977). Whether an independent basis exists is determined by considering the
totality of the following factors:

               1. Prior relationship with or knowledge of the defendant.

              2. The opportunity to observe the offense. This includes such factors as
       length of time of the observation, lighting, noise or other factor affecting sensory
       perception and proximity to the alleged criminal act.

               3. Length of time between the offense and the disputed identification.

              4. Accuracy or discrepancies in the pre-lineup or show-up description and
       defendant's actual description.

               5. Any previous proper identification or failure to identify the defendant.

              6. Any identification prior to lineup or showup of another person as
       defendant.

               7. Still another consideration . . . , but essential to a determination of
       judging the reliability of the witness's perceptions is the nature of the alleged
       offense and the physical and psychological state of the victim. “In critical
       situations perception will become distorted and any strong emotion (as opposed
       to mildly emotional experiences) will affect not only what and how much we
       perceive, but also will affect our memory of what occurred.”

               Factors such as “fatigue, nervous exhaustion, alcohol and drugs”, and age
       and intelligence of the witness are obviously relevant.

               8. Any idiosyncratic or special features of defendant.

              Further, the court should refer to the actual lineup or showup to determine
       whether the witness's testimony that the identification was due to perceptions
       received at the time of the alleged offenses is credible in view of the witness's
       performance at, and the conduct of, the disputed lineup or showup.

               The court should attempt, in its evidentiary hearing, to examine as many
       factors as are applicable to a particular case. All will not be of equal weight, but
       it is within the trial court's discretion, keeping in mind the appropriate legal and
       psychological principles to determine, on balance, whether the prosecution has
       carried its burden of proof. [Id. at 95-97 (citations omitted).]

        Determining whether there is an independent basis is a factual issue, and because this
issue is unpreserved, we must examine whether defendant can demonstrate that admission of the
victims’ in-court identifications arises to the level of a clear or obvious error, Jones, 468 Mich at
355, and whether there is a reasonable probability that the prosecution would not have been able
to establish an independent basis had defense counsel challenged the identifications below,
Johnson, 451 Mich at 124. Defendant does not identify any factors to support his claim that

                                                 -7-
there was not an independent basis for the victims’ identification. Both victims testified that they
met defendant for the purpose of social interaction, and they further testified that they had an
opportunity to talk with him face-to-face for an extended period before he threatened them with a
gun. Given that they had sufficient opportunity to observe and engage with defendant before he
threatened them, it is not likely that their fear of being shot affected their capacity to identify
defendant as their assailant. Moreover, both victims testified that they recognized that defendant
was not the same person depicted in the profile picture from the website, indicating that they
both had sufficient opportunity to observe defendant to make that determination. The victims
identified defendant just three days after the offenses, and there is no evidence that they gave any
inaccurate descriptions or identified anyone else as their assailant. Although LB identified
another person’s photo in a different array, he did not identify the other person as the man he
met, but as the person depicted in the application profile photo. Because the totality of the
circumstances favor the existence of an independent basis for each victim’s in-court
identification, defendant has failed to demonstrate that the in-court identifications constituted
plain error, and has not shown that he was prejudiced by defense counsel’s failure to challenge
the identifications.

                                        II. SENTENCING

        In Docket No. 335253, defendant argues that he is entitled to be resentenced because the
trial court erred in assessing 15 points for offense variable (OV) 8. We disagree.

         When reviewing a challenge to the scoring of the sentencing guidelines, this Court
reviews the trial court’s factual determinations, which must be supported by a preponderance of
the evidence, for clear error. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).
“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.” Id.

        OV 8 is victim asportation or captivity, MCL 777.38. The trial court is directed to assess
15 points if “[a] victim was asported to another place of greater danger or to a situation of greater
danger or was held captive beyond the time necessary to commit the offense.” MCL
777.38(1)(a). The trial court assessed 15 points in the case involving LB because defendant
picked up LB at a fast food restaurant in a high traffic area, drove him to a more secluded
residential neighborhood, and then took him to a park to sexually assault him. Defendant argues
that the park was not a place of greater danger than defendant’s vehicle, because the park was
open to the public. However, although the car was parked in a residential area where residents
could have viewed the activity, the sexual offense occurred sometime between 2:00 a.m. and
3:42 a.m. (the time at which defendant used LB’s bank card), at a time when the park was not
likely to be occupied. These facts support a finding that, at the time of the offense, the park was
a more secluded location. Thus, defendant’s movement of LB to the park placed him in greater
danger. Accordingly, the trial court did not err by assessing 15 points for OV 8.

       In addition, as defendant concedes, the scoring of OV 8 did not affect defendant’s
sentencing guidelines range. Defendant received a total OV score of 95 points, placing him in
OV Level V (80-99 points) under the applicable sentencing grid. MCL 777.62. Because a 15-
point reduction would not change defendant’s placement in OV Level V, any scoring error

                                                -8-
would not entitle defendant to be resentenced.2 People v Francisco, 474 Mich 82, 89-92; 711
NW2d 44 (2006).

       Affirmed.



                                                         /s/ Thomas C. Cameron
                                                         /s/ Karen M. Fort Hood
                                                         /s/ Elizabeth L. Gleicher




2
  Defendant asserts that he is entitled to be sentenced on the basis of accurate information.
However, the alleged error does not involve the accuracy of information, but rather the trial
court’s determination of whether the facts support the scoring of OV 8.


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