            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS


 PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                      February 6, 2020
                Plaintiff-Appellee,

 v                                                                    No. 344603
                                                                      Macomb Circuit Court
 ROBERTO MARCELLO DUPREE,                                             LC No. 2015-003884-FC

                Defendant-Appellant.


Before: BECKERING, P.J., and CAVANAGH and STEPHENS, JJ.

PER CURIAM.

        A jury convicted defendant, Roberto Marcello Dupree, of armed robbery, MCL 750.529.
The trial court sentenced him as a fourth-offense habitual offender, MCL 769.12, to 30 to 60 years
in prison. Defendant appeals as of right his conviction and raises several errors in the calculation
of his sentence. Finding no error requiring reversal, we affirm.

                                      I. RELEVANT FACTS

        Defendant was arrested and charged for his participation in the armed robbery of a
Smoker’s Only store located in Clinton Township. The victim stated that he was working alone
at a smoker’s store in the morning of December 15, 2012, when a man approached him, drew a
gun, pointed it at his face, and told him not to move. He said that he raised his hands, and two
other men approached, bound him with duct tape, and moved him to the back of the store. The
men unsuccessfully attempted to leave through a back door, and one of the men struck the victim’s
head with the gun. After the men left through the front door, the victim was able to free himself
and call the police, and a neighboring store worker told him that she saw men walk behind the end
store of the strip mall. He said that the men took all the cash from the register and some cigars.

       The incident was recorded on surveillance video. Clinton Township Police Sergeant Deena
Terzo viewed the surveillance video at the time of the crime and testified that the man with the
gun was a thin African-American male, who appeared to be in his late 20s, who was not wearing
a glove or mask. Terzo described the other robbers as a heavyset light-skinned man with a shaved
head wearing clear or yellow rubber gloves, and a medium-built African-American male wearing
one white, dark-palmed glove. A tracking dog followed a scent from where the perpetrators were


                                                -1-
seen leaving the store along the direction they fled, and found rubber gloves on the property of the
strip mall where the robbery occurred. Evidence technician Officer Paul Collins testified that he
collected an intact glove and one that was in a few pieces and swabbed the gloves for DNA.

         About a week after the robbery, Clinton Township Police Detective Jeffrey Barbera went
to the scene to help recover the video and still images from the store’s surveillance camera. He
testified that he was unable to download the surveillance video to a disc or thumb drive, but he
viewed the evidence and it showed that at least one of the robbers was wearing light-colored
gloves. Detective Barbera explained that, because he could not download the surveillance video,
he used his department-issued cell phone to record clips from the video in accordance with
instructions he had received from the detective in charge of the case at the time, Detective Michael
Friese. None of the recorded images recorded from the robbery video clearly showed defendant
wearing gloves.

       In October 2014, the case was assigned to Detective Bryan Gilbert because Detective
Friese had retired. Detective Gilbert testified that he developed a lead on a suspect, Roberto
Dupree. The detective compared a driver’s license photograph from the Secretary of State to the
images on video and still images of the robbery and concluded that they depicted the same man.
A search warrant to collect defendant’s DNA with two buccal swabs was obtained in March 2016.
Detective Gilbert transported the evidence to the Michigan State Police laboratory in Northville.

        Michigan State Police forensic science expert Andrea Young determined that the DNA
sample from defendant matched the DNA that was the major sample found on a rubber glove that
was found near the smoker’s store. Young calculated that the chances for this match were one in
one hundred and sixty point eight quadrillion African-Americans (160,800,000,000,000,000), and
one in eight point six eight one quintillion Caucasians (8,681,000,000,000,000,000). An
independent laboratory evaluated the State Police’s examination of the DNA evidence, and agreed
that defendant’s DNA matched the DNA from the glove. Julie Anne Howenstine, a biology and
DNA specialist at Speckin Forensics, LLC, a private forensic consulting group, was qualified
without objection as a DNA expert. Howenstine determined that the glove DNA had become too
diluted to conclusively associate it with the buccal swab DNA. Nevertheless, Howenstine agreed
that defendant’s DNA was a major donor of the DNA collected from the glove found near the
scene of the robbery and testified that she found no “technical or interpretational errors” in the
work of the MSP forensic science technicians.

                                         II. ANALYSIS

                            A. SUFFICIENCY OF THE EVIDENCE

        Defendant first contends that, under Michigan law, convictions involving tracking-dog
evidence must be supported by direct evidence, and because the prosecution did not present any
direct evidence of his participation in the armed robbery at issue, the evidence is insufficient to
sustain his conviction. We disagree.

        When reviewing a challenge to the sufficiency of the evidence, “this Court reviews the
record evidence de novo in the light most favorable to the prosecution to determine whether a
rational trier of fact could have found that the essential elements of the crime were proved beyond

                                                -2-
a reasonable doubt.” People v Roper, 286 Mich App 77, 83; 777 NW2d 483 (2009). “The standard
of review is deferential: a reviewing court is required to draw all reasonable inferences and make
credibility choices in support of the jury verdict.” People v Oros, 502 Mich 229, 239; 917 NW2d
559 (2018) (quotation marks and citation omitted).

        Defendant relies on People v Perryman, 89 Mich App 516; 280 NW2d 579 (1979), to
support his position that direct evidence is required to sustain his conviction. In Perryman, this
court held prospectively that “a court has a duty, even absent a request by counsel, to inform the
jury that tracking dog evidence: must be considered with caution; is of slight probative value; and
if found reliable, cannot support a conviction in the absence of other direct evidence of guilt.”
Perryman, 89 Mich App at 523 (emphasis added). The preference for direct evidence expressed
in Perryman arose from this Court’s reliance on a decision out of New York’s Oneida County,
People v Centolella, 61 Misc2d 723; 305 NYS2d 279 (1969). In Centolella, the Oneida County
court concluded that, because the jury would likely give undue importance to tracking-dog
evidence, “in the absence of some other direct evidence of guilt[, tracking-dog evidence] would
not warrant a conviction.” Centolella, 61 Misc2d at 725. In addition, this Court appeared to be
responding to similar concerns previously expressed in People v McPhearson, 85 Mich App 341;
271 NW2d 228 (1978), by more clearly defining the “corroborating evidence” necessary in
tracking-dog cases. Nevertheless, defendant’s reliance on Perryman is misplaced for two reasons.

        First, it was a well-settled principle of Michigan law by the time this Court decided
Perryman that the elements of a crime may be “proved by circumstantial evidence and reasonable
inferences therefrom.” See Peterson v Oceana Circuit Judge, 243 Mich 215, 217; 219 NW 934
(1928) (indicating that the corpus delicti of the crime at issue “may be proved by circumstantial
evidence.”) To interpret Perryman as specifically requiring direct evidence in tracking dog cases
would be contrary to this principle. Second, this Court has never interpreted Perryman as requiring
direct evidence, understood as “evidence based on personal knowledge or observation and that, if
true, proves a fact without inference or presumption.” Black’s Law Dictionary, (11th ed, 2019).
Rather, it has interpreted Perryman consistently with McPherson, 85 Mich App at 343-346, and
its progeny as requiring corroborating evidence in tracking-dog cases, but not necessarily direct
evidence. See, e.g., People v Laidlaw, 169 Mich App 84, 93; 425 NW2d 738 (1988) (indicating
that tracking-dog, alone, is insufficient to establish identity; “there must be other corroborating
evidence presented before identification is sufficient to support a guilty verdict”); People v
Riemersma, 104 Mich App 773, 781; 306 NW2d 340 (1981) (concluding that “sufficient
circumstantial evidence was introduced” to corroborate the tracking-dog evidence). Thus, under
Michigan law, tracking-dog evidence is not sufficient to support identification in a criminal trial
by itself. Such evidence must be accompanied by other evidence, evidence that is not “fragmentary
or unsubstantial,” but it need not be accompanied by direct evidence. See McPherson, 85 Mich
App at 344. A conviction may rest on circumstantial evidence and reasonable inferences
therefrom. See People v Hardiman, 466 Mich 417, 422-429; 646 NW2d 158 (2002); see also
Peterson, 243 Mich at 217.

        Our review of the record convinces us that the prosecutor presented evidence sufficient to
allow a jury to find beyond a reasonable doubt that defendant committed the charged crime. The
jury convicted defendant of armed robbery under a theory of aiding and abetting. In order to prove
that defendant aided and abetted the commission of armed robbery, the prosecution had to prove


                                                -3-
that “ ‘(1) [armed robbery1] was committed by the defendant or some other person; (2) the
defendant performed acts or gave encouragement that assisted in the commission of [armed
robbery]; and (3) the defendant intended the commission of [armed robbery] or had knowledge
that the principal intended its commission at the time that [the defendant] gave aid and
encouragement.’ ” People v Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010), quoting
People v Robinson, 475 Mich 1, 6; 715 NW2d 44 (2006) (quotation marks and citations omitted).

        Defendant’s argument centers on whether the evidence was sufficient to allow a jury to
identify him beyond a reasonable doubt as one of the unarmed perpetrators of the armed robbery.
We conclude that it was.

        The victim testified to the details of the armed robbery, although he could not identify
defendant as one of the robbers. In particular, the victim testified that while one man held a gun
on him, the two other men took him to the back of the store and bound him with duct tape. Officer
Terzo and Detective Barbera testified that video surveillance showed that one of the unarmed
robbers was heavyset, bald, and wearing gloves. DNA was collected from a glove found in the
vicinity of the robbery by the tracking dog. Following up on a lead, Detective Gilbert compared a
driver’s license photo of defendant with images from the surveillance camera, found that they
matched, and obtained a search warrant to collect defendant’s DNA. The forensic technician from
the Michigan State Police testified that the glove DNA matched the DNA collected from defendant
pursuant to the warrant, and that the odds of it matching someone else’s DNA were infinitesimally
small. Defendant’s DNA expert also testified that defendant was the primary donor of the glove
DNA. In addition to eliciting this testimonial evidence, the prosecution showed the jury the video
images from the robbery and the photograph of defendant’s driver’s license used by Detective
Gilbert. Although defendant focuses on the activity of the tracking dog, it was not the tracking
dog that identified defendant; in fact, the dog’s handler testified that the dog lost the scent it was
following shortly after finding the glove from which defendant’s DNA was collected. It was
routine investigative work that linked the glove to defendant by means of DNA testing.

        We conclude that, viewed in the light most favorable to the prosecution, Meissner, 294
Mich App at 452, the evidence presented to the jury was sufficient to allow the jury to conclude
beyond reasonable doubt that defendant was one of the participants aiding and abetting the gunman
in the armed robbery of the Smoker’s Only store.

                                 B. INSTRUCTIONAL ERROR

        Defendant next contends that the trial court erred by giving the jury a tracking-dog
instruction that did not state that direct evidence was required to convict him of the charged crime.
Defendant waived this issue when defense counsel expressly approved of the jury instructions.
People v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011) (“When defense counsel clearly
expresses satisfaction with a trial court’s decision, counsel’s action will be deemed to constitute a



1
  “The elements of armed robbery are: (1) an assault and (2) a felonious taking of property from
the victim’s presence or person (3) while the defendant is armed with a weapon.” People v Smith,
478 Mich 292, 319; 733 NW2d 351 (2007).

                                                 -4-
waiver.”). Because a waiver extinguishes any error, there is no error for this Court to review. See
People v Carter, 462 Mich 206, 215-216; 612 NW2d 144 (2000).

        Defendant contends in the alternative that his trial counsel rendered constitutionally
ineffective assistance by failing to object to the allegedly erroneous jury instruction. In order to
establish that his counsel provided ineffective assistance, defendant must show (1) “that counsel’s
performance was deficient” and (2) “that counsel’s deficient performance prejudiced the defense.”
People v Taylor, 275 Mich App 177, 186; 737 NW2d 790 (2007) (quotation marks and citation
omitted). A counsel’s performance is deficient if “it fell below an objective standard of
professional reasonableness.” Id. “Failing to advance a meritless argument or raise a futile
objection does not constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich App
192, 201; 793 NW2d 120 (2010).

       With regard to tracking-dog evidence, the court instructed the jury as follows:

       You have heard testimony about the use of tracking dog, of a tracking dog. You
       must consider tracking-dog evidence with great care and remember that it has little
       value as proof. Even if you decide that it is reliable, you must not convict the
       defendant based only on tracking-dog evidence. There must be other evidence that
       the defendant is guilty.

        As discussed above, this instruction is perfectly consistent with Michigan law. See
McPherson, 85 Mich App at 343-346. Thus, defendant cannot establish that his trial counsel
performed deficiently by not objecting to this instruction or by failing to advance the meritless
argument that direct evidence was required to convict defendant of the charged crime. Ericksen,
288 Mich App at 201. Because he has not established that trial counsel’s performance was
deficient, Taylor, 275 Mich App at 186, defendant’s ineffective assistance claim must fail.

                           C. OFFENSE-VARIABLE ASSESSMENT

        Defendant next contends that the trial court erred in assessing offense variables (OVs) 1,
2, and 4. We disagree. This Court reviews the trial court’s factual determinations at sentencing
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.

        “A defendant is entitled to be sentenced by a trial court on the basis of accurate
information.” People v Francisco, 474 Mich 82, 88; 711 NW2d 44 (2006). The court must consult
the advisory sentencing guidelines and assess the highest amount of possible points for all offense
variables. People v Lockridge, 498 Mich 358, 392 n 28; 870 NW2d 502 (2015). The trial court’s
factual determinations regarding offense variables must be supported by a preponderance of the
evidence. See People v Osantowski, 481 Mich 103, 111; 748 NW2d 799 (2008).

                                       1. OV 1 AND OV 2

       Defendant argues that the trial court erred in assessing 15 points for OV 1 because he did
not have a gun and no one else has been charged or convicted of the armed robbery.

                                                 -5-
       OV 1 assesses the “aggravated use of a weapon,” MCL 777.31(1). The trial court may
score 15 points where “[a] firearm was pointed at or toward a victim . . .” MCL 777.31(1)(c).
Further, “[i]n multiple offender cases, if 1 offender is assessed points for the presence or use of a
weapon, all offenders shall be assessed the same number of points.” MCL 777.31(2)(b).

        We agree that defendant did not possess a weapon during the armed robbery of the
smoker’s store, but we reject his argument that the trial court erred in scoring 15 points for OV 1
because no other offender has been identified, charged, or convicted of the armed robbery. The
sentencing guidelines do not require that the other offenders be identified, charged, and convicted
before any of the offenders may be assessed points under OV. That defendant was the first, and
might be the only, offender identified, charged, and convicted of the armed robbery is irrelevant
for purposes of scoring OV 1. Further, a person convicted of committing a crime under an aiding-
and-abetting theory “shall be punished as if he had directly committed such offense.” MCL
767.39. Scoring the sentencing guidelines is an integral part of determining the punishment for
one convicted of a crime.

       In the present case, the evidence established that the principal pointed a gun at the victim
during the robbery, the jury convicted defendant of armed robbery as an aider and abettor, MCL
767.39 requires defendant to receive the same “punish[ment] as if he had directly committed
[armed robbery,]” and OV 1 requires all offenders to receive the same score, without regard to
whether the other offenders were prosecuted and convicted. In light of the facts of this case and
the governing law, we find no error in the trial court’s scoring of OV 1.

         Defendant raises a similar argument with regard to the trial court’s assessment of five
points for OV 2. Five points is scored for OV 2 when “[t]he offender possessed or used a pistol,
rifle, shotgun, or knife or other cutting or stabbing weapon.” MCL 777.32(1)(d). As in OV 1, OV
2 also states that “[i]n multiple offender cases, if 1 offender is assessed points for possessing a
weapon, all offenders shall be assessed the same number of points.” MCL 777.32(2). For the
reasons discussed with respect to OV 1, the trial court did not err in scoring five points for OV 2
on the basis of the unidentified principal’s use of a pistol.

                                              2. OV 4

        Defendant next contends that the trial court erred by scoring 10 points for OV 4, which
considers the psychological injury to a victim. A trial court must assess 10 points “if serious
psychological injury requiring professional treatment occurred to a victim.” MCL 777.34(1)(a).
That treatment has not been sought is not conclusive. MCL 777.34(2). A score of zero is proper
where “[n]o serious psychological injury requiring professional treatment occurred to a victim.”
MCL 777.34(1)(a). “A sentencing court may consider all record evidence before it when
calculating the guidelines, including, but not limited to, the contents of a presentence investigation
report, admissions made by a defendant during a plea proceeding, or testimony taken at a
preliminary examination or trial.” People v Johnson, 298 Mich App 128, 131; 826 NW2d 170,
172 (2012) (quotation marks and citation omitted).

       This Court has found adequate evidence to support a trial court’s assessment of 10 points
for OV 4 where the victim of a bank robbery indicated in her victim impact statement that she
suffered from sleeplessness for weeks after the robbery and was constantly afraid of being robbed

                                                 -6-
by her customers. People v Earl, 297 Mich App 104, 110; 822 NW2d 271 (2012). The victim in
the present case told the presentence investigator that the robbery “shook him up and made him
nervous and scared for at least six months after the instant offense occurred.” The victim also told
the investigator that he became nervous whenever someone walked into his store, and he was afraid
he would be robbed again. This evidence is sufficient to support the trial court’s assessment of 10
points for OV 4 in this case. See id.

                                   D. STANDARD 4 ISSUES

       In addition to the issues raised by appellant counsel in defendant’s main brief to this Court,
defendant raises a number of issues in a Standard 4 brief.2

                           1. FAILURE TO PRESERVE EVIDENCE

         Defendant first alleges that the failure of police to a preserve and disclose all of the
surveillance video from the day of the robbery violated his right to due process by denying him a
fair trial. This Court reviews constitutional claims de novo. People v Bosca, 310 Mich App 1, 26-
27; 871 NW2d 307 (2015).

        “To warrant reversal on a claimed due-process violation involving the failure to preserve
evidence, a defendant must prove that the missing evidence was exculpatory or that law
enforcement personnel acted in bad faith.” People v Dickinson, 321 Mich App 1, 16; 909 NW2d
24 (2017) (quotation marks and citation omitted). Exculpatory evidence is evidence that would
raise a reasonable doubt about defendant’s guilt. People v Stanaway, 446 Mich 643, 666; 521
NW2d 557 (1994). Generally, bad faith requires a showing of malicious or intentionally wrongful
conduct. See Flones v Dalman, 199 Mich App 396, 401; 502 NW2d 725 (1993).

        Defendant has not met his burden to prove that the missing video was exculpatory.
Defendant argues that the video of the robbery was exculpatory because he could have used it to
impeach Sergeant Terzo’s statement that the heavyset man in the video was wearing clear or
yellow rubber gloves. Defendant implies that the video would have shown that the heavyset, bald,
light-skinned robber was not wearing gloves. However, defendant has given this Court no reason
to view his implication as anything more than mere speculation. At best, defendant has shown no
more than that the complete video might have been “potentially useful.” The failure to preserve
evidence that is merely “potentially useful” is not a due-process violation unless a defendant
establishes bad faith. People v Huttenga, 196 Mich App 633, 642; 493 NW2d 486 (1992), citing
Arizona v Youngblood, 488 US 51, 58; 109 S Ct 333; 102 L Ed 2d 281 (1988).

        Likewise, defendant has not demonstrated that the police acted in bad faith by not
preserving the entire video of the robbery. The victim explained that he did not know how to
transfer the video to the police, Sergeant Terzo stated that she could not download the video
because neither she nor the evidence technician had the USB memory card that the victim said was
needed. Moreover, Detective Barbera, who had some familiarity with technology, was unable to


2
  A “Standard 4” brief refers to a brief filed on behalf of an indigent criminal defendant pursuant
to Michigan Supreme Court Administrative Order 2004-6, Standard 4.

                                                -7-
transfer the video to a disc or thumb drive. Even if we assume for the sake of argument that police
should have found someone or some way to preserve the entire portion of the video recording the
robbery, we find no evidence that the inability of the police to download the video was feigned or
that the decision to record the portions of the video potentially helpful in solving the crime
constituted malicious or intentionally wrongful conduct. See Flones, 199 Mich App at 401.
Defendant having failed to demonstrate that the complete video was exculpatory or that the police
acted in bad faith, his due-process claim must fail. See Dickinson, 321 Mich App at 16.

                                 2. EXPERT DETERMINATION

         Defendant next argues that the trial court violated his right to due process by denying him
a fair trial when the court declined to qualify Macomb County Sheriff Deputy Dave Quartuccio,
the tracking dog’s handler, as an expert witness. Again, we find no error.

        The qualification of a witness as an expert and the admissibility of his testimony are in the
trial court’s discretion and will not be reversed on appeal absent an abuse of that discretion. People
v Steele, 283 Mich App 472, 480; 769 NW2d 256 (2009). An abuse of discretion occurs if the trial
court’s decision results in an outcome outside the range of principled outcomes. See People v
Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).

        If the trial court determines that recognized scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert may testify to the knowledge by opinion or otherwise, if the
testimony is based on sufficient facts or data, is the product of reliable principles and methods, and
the witness has applied the principles and methods reliably to the facts of the case. People v Dobek,
274 Mich App 58, 93-94; 732 NW2d 546 (2007), citing MRE 702. Canine officers can be qualified
as experts under MRE 702 by satisfying the test for reliability of tracking-dog evidence. See
People v Lane, 308 Mich App 38, 52-53, 54-55; 862 NW2d 446 (2014); Laidlaw, 169 Mich App
at 93. In order to establish that tracking-dog evidence is sufficiently reliable, it must be
demonstrated that:

       (1) the handler was qualified to use the dog; (2) the dog was trained and accurate
       in tracking humans; (3) the dog was placed on the trail where circumstances
       indicate the alleged guilty party to have been; and, (4) the trail had not become so
       stale or contaminated as to be beyond the dog’s competency to follow it. [Lane, 308
       Mich App at 53, citing People v Harper, 43 Mich App 500, 508; 204 NW2d 263
       (1972).]

        In the present case, the trial court found that the tracking-dog evidence met the four-part
standard for reliability, but declined to qualify Deputy Quartuccio as an expert for purposes of the
trial. The court expressed its concern that, if it qualified the deputy as an expert, the jury could
give extra weight to the tracking-dog evidence and not view the evidence with the appropriate
level of caution. In the trial court’s view, admitting the deputy as an expert would run contrary to
the instruction the court planned to give the jury to view the tracking-dog evidence with caution.

       This Court has observed that there is a “danger that a jury may place undue importance on
evidence of this type,” and that tracking-dog evidence “is to be treated with caution.” Perryman,

                                                 -8-
89 Mich App at 523-524. The trial court’s decision to admit the tracking-dog evidence based on
its reliability, but to decline to declare Deputy Quartuccio an expert witness, accords with this
concern. Defendant argues that the trial court’s decision to not qualify Deputy Quartuccio as an
expert witness prejudiced him by denying him the opportunity to receive, and challenge, the
foundational data underlying the canine team’s qualifications. Specifically, defendant sought more
detailed information about the tracking dog’s success rate. However, Deputy Quartuccio testified
that he was not required to document the dog’s success rate. Thus, the detailed performance
records that defendant assumes existed may not, in fact, have existed. Further, the record shows
that defendant was able to voir dire the qualifications of Deputy Quartuccio and the tracking dog
and to cross-examine Quartuccio regarding the dog’s reliability and performance. On this record,
we cannot say that the trial court’s decision not to qualify Deputy Quartuccio as an expert witness
resulted in an outcome outside the range of principled outcomes. See Babcock, 469 Mich at 269.
Accordingly, we find no due-process violation.

                                    3. DELAYED DISCOVERY

         Somewhat related to the previous issue is defendant’s assertion of a due-process violation
arising from the prosecution’s alleged late disclosure of evidence about the canine unit’s
qualifications and its failure to provide information about the unit’s success rate. Contrary to
defendant’s claim on appeal, the prosecution did not refuse to provide the discovery. Defendant
requested the records related to the canine unit two weeks before trial. Subsequently, the
prosecution contacted the Macomb County Sheriff’s Department and obtained and turned over the
records about the handler’s training and the dog’s qualifications six days before trial. With regard
to records about the tracking dog’s success rate, defendant’s assumption that such records exist
was belied by the testimony of the dog’s handler that he was not required to keep such records.
Even without such records, defense counsel had an extensive opportunity to voir dire the dog’s
handler about the dog’s reliability and accuracy in tracking situations, and he thoroughly cross-
examined the handler. See Florida v Harris, 568 US 237, 247; 133 S Ct 1050, 1057; L Ed 2d 61
(2013) (stating that a defendant must have an opportunity to challenge evidence of a dog’s
reliability, “whether by cross-examining the testifying officer or by introducing his own fact or
expert witness”). On this record, we cannot say that defendant suffered violation of his right to
due process.

                                     4. PREARREST DELAY

        Defendant next contends that the unreasonable delay prior to his arrest violated his right to
due process by precluding him from obtaining exculpatory evidence from the unpreserved
surveillance video and from DNA evidence. For the reasons stated below, we find no error.

        Because this issue comes to the Court unpreserved, our review is for plain error affecting
defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
Under plain error review, the defendant bears the burden to demonstrate that an error occurred,
that the error was clear or obvious, and that the error affected his or her substantial rights. Id. In
order to establish the last element, the defendant must show that the error “affected the outcome
of the lower court proceedings.” Id. Even if the defendant establishes a plain error that affected
his or her substantial rights, reversal will be “warranted only when the plain, forfeited error resulted
in the conviction of an actually innocent defendant” or when the error “seriously affect[ed] the

                                                  -9-
fairness, integrity or public reputation of judicial proceedings’ independent of the defendant’s
innocence.” Id. at 763-764 (quotation marks and citation omitted).

        A defendant’s right to due process can be violated when a prearrest delay causes
“substantial prejudice to a defendant’s right to a fair trial and . . .was used to gain tactical
advantage[.]” People v Woolfolk, 304 Mich App 450, 454; 848 NW2d 169 (2014). To establish a
due-process violation arising from prearrest delay, a defendant must demonstrate “actual and
substantial prejudice to his right to a fair trial[.]” People v Musser, 259 Mich App 215, 220; 673
NW2d 800 (2003). “Substantial prejudice is that which meaningfully impairs the defendant’s
ability to defend against the charge in such a manner that the outcome of the proceedings was
likely affected.” People v Patton, 285 Mich App 229, 237; 775 NW2d 610 (2009). “[A] defendant
cannot merely speculate generally that any delay resulted in lost memories, witnesses, and
evidence . . .even if the delay was a long one.” Woolfolk, 304 Mich App at 454, citing United
States v Marion, 404 US 307, 325-326; 92 S Ct 455; 30 L Ed 2d 468 (1971).

        Defendant argues that the time lapse between March 2014, when he was identified in the
CODIS database, and October 2015, when police arrested him, prevented him from obtaining
exculpatory evidence from the unpreserved surveillance video. As discussed elsewhere in this
decision, defendant has not established that the unpreserved video contained exculpatory
information. Moreover, he has not established that the video was even available in March 2014,
15 months after the armed robbery. Defendant also argues that the delay may have resulted in the
officers’ lack of recollection regarding how they had attempted to download the video before
recording it. Not only is defendant’s assertion speculative, but he cannot establish prejudice with
general allegations of lost memories. Woolfolk, 304 Mich App at 454.

        Defendant further argues that prearrest delay resulted in less DNA being available for
testing. The evidence technician testified that he swabbed the gloves found in the vicinity of the
robbery for DNA after he collected them on the day of the crime. Because the DNA evidence
itself was promptly processed, defendant’s argument that additional DNA would have been
available for testing had there been less pretrial delay merely speculates about evidence presumed
to be lost; it does not establish “actual and substantial prejudice to his right to a fair trial.” Musser,
259 Mich App at 220; see Woolfolk, 304 Mich App at 454.

        In order to establish a due-process violation arising from prearrest delay, defendant must
show both substantial prejudice and that the delay was used to gain a tactical advantage. Woolfolk,
304 Mich App at 454. Defendant has not met his burden to show that substantial prejudice resulted
from the delay, but even if he had, his mere speculation about “lost memories, witnesses, and
evidence,” is insufficient to show that prearrest delay was used to gain a tactical advantage. Id.
Because defendant did not meet his burden to show that substantial prejudice and a tactical
advantage resulted from the prearrest delay in this case, id., he has not shown plain error affecting
his substantial rights, and his claim of a due-process violation must fail, Carines, 460 Mich at 763.

                                 5. SPEEDY TRIAL VIOLATION

       Finally, defendant argues that his right to a speedy trial was violated. “Whether a defendant
was denied his constitutional right to a speedy trial is a mixed question of fact and law.” People v
Gilmore, 222 Mich App 442, 459; 564 NW2d 158, 167 (1997). We review factual findings for

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clear error and constitutional questions de novo. Id. Dismissal with prejudice is the only remedy
for a violation of the Sixth Amendment right to a speedy trial. Barker v Wingo, 407 US 514, 522;
92 S Ct 2182, 2188; 33 L Ed 2d 101 (1972).

        To determine whether a defendant has been denied the right to a speedy trial, the Court
balances the following four Barker factors: “(1) the length of delay, (2) the reason for delay, (3)
the defendant’s assertion of the right, and (4) the prejudice to the defendant.” People v Williams,
475 Mich 245, 261-262; 716 NW2d 208 (2006). “The “time for judging whether a defendant’s
right to a speedy trial was violated runs from the date of the defendant’s arrest.” Id. at 261.
Prejudice is presumed after a delay of 18 months, thus triggering “an inquiry into the other factors
to be considered in the balancing of the competing interests to determine whether a defendant has
been deprived of the right to a speedy trial.” Id. at 262 (quotation marks and citation omitted).

         The first Barker factor is the length of the delay. This factor favors defendant. The delay
of two-and-a-half years between defendant’s October 2015 arrest and the May 2018 beginning of
his trial is presumptively prejudicial. Thus, this Court must consider the other Barker factors to
determine if defendant was deprived of his right to a speedy trial. See Id. Because he asserted his
right to a speedy trial, the third Barker factor also favors defendant.

        The second Barker factor is the reason for the delay. This factor favors the prosecution, as
the record shows that most of the pretrial delay was attributable to defendant. Defendant filed
numerous motions, which required hearings and, in some instances, adjournment to await more
information. He had four successive court-appointed attorneys, each of which required time to
become familiar with the case. In February 2016, defendant withdrew a plea that he had entered
the previous month, which led to a rescheduled trial date and a further adjournment so that
defendant’s second court-appointed attorney could try to negotiate another plea agreement. Delays
accompanied defendant’s two competency evaluations, and a lengthy wait ensued for the DNA
results defendant requested from an independent laboratory.

        The fourth Barker factor concerns prejudice to the defendant and is critical to the analysis
of whether defendant’s speedy trial rights were abridged. Cain, 238 Mich App at 112. “There are
two types of prejudice: prejudice to the person and prejudice to the defense.” Gilmore, 222 Mich
App at 461-462. Regarding prejudice to the person, defendant claims that he suffered anxiety over
his loss of liberty and whether he would be able to prove his innocence, and that this anxiety
necessitated two competency evaluations and caused him to breakdown in front of the jury.
Regarding prejudice to the defense, defendant alleges that the delay resulted in fading memories
of the witnesses and the alleged disappearance of the original DNA swab from the glove found in
the vicinity of the robbery.

         “[A]nxiety, alone, is insufficient to establish a violation of defendant’s right to a speedy
trial.” Id. at 462. Defendant asserts that his anxiety was such as to result in two competency
evaluations and a “breakdown” in front of the jury. Review of the record, however, calls into
question defendant’s assertions that his anxiety was attributable specifically to pretrial delay.

        The trial court ordered defendant to undergo a competency evaluation in October 2016,
less than one year after his arrest, and in November 2017. In both cases, the reason for the order
was substantially the same: to determine whether defendant was capable of working with his

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attorney. Defendant alleged that each of his attorneys was working against him by, among other
things, preventing his motions from being heard. At the October 2016 hearing that resulted in the
trial court’s first order for a competency evaluation, the court explained to defendant that it had
granted his motions for an independent DNA expert to analyze the DNA evidence in the case, but
that his additional motions could not be heard until the expert and the laboratory had finished their
work. Nevertheless, defendant continued to insist that he wanted all of his motions heard and
either granted or denied, and to see the court’s failure to operate in accordance with his
expectations as evidence of sabotage. The November 2017 order calling for a second competency
evaluation was issued for similar reasons. Defendant’s latest attorney had alleged that defendant
“exhibited a lack of understanding and recollection of past proceedings” that made formulating a
defense strategy “impossible,” that he believed defendant was not competent to make legal
decisions on his own, and that defendant believed that counsel was working against his best
interests. In our view, the record suggests that defendant was anxious about the outcome of his
case, which is to be expected, see Barker, 407 US at 537 (WHITE, J., concurring), and took matters
into his own hands, filing or causing to be filed numerous motions. Failing to understand or to
accept explanations of how court proceedings worked, defendant interpreted variations from his
expectations as evidence of ill intent on the part of his attorneys and the court. This appears to
have been defendant’s consistent pattern, and nothing in the record suggests that it was caused
specifically by the delay in bringing him to trial.

        Defendant also attributes his “breakdown” in front of the jury to pretrial delay. The
“breakdown” occurred when, during defense counsel’s closing argument, defendant said, “Don’t
railroad me, man. I ain’t had nothing to do with that crime. Nothing man.” The court excused
the jury and reprimanded defendant for what the court considered a “knowing and purposeful
attempt at playacting.” The court interpreted defendant’s outburst as an attempt to do what he had
already “coolly and calmly and rationally” indicated on the record he would not do, namely, testify.
The trial court stated, “I have watched his demeanor and his skill in trying to set things up in his
favor over these many months and this is yet another example of his purposeful, malicious, pre-
planned attempts to foil the system[,]” and concluded by holding defendant in contempt. When
the court allowed defendant to respond, defendant claimed that his attorney was intentionally
trying to get the jury to convict him of aiding and abetting so that he could be sentenced to life,
and had not once told the jury that he was innocent. Defendant’s outburst, like the behavior that
resulted in the two competency evaluations, appears to have been motivated by anxiety over the
outcome of the trial and the mandatory minimum sentence of 25-years defendant faced if found
guilty, given his prior felony convictions. MCL 769.12(1)(a). Anxiety over his potential sentence
was what caused defendant to withdraw his plea in February 2016, and it appears to have continued
to inform his decisions throughout the proceeding. Nothing in the record indicates that defendant’s
“breakdown” was motivated by anxiety brought on or increased by the length of the pretrial delay.

        Turning next to the alleged prejudice to the defense, defendant asserts that the delay
impaired witnesses’ memories of what they “allegedly observed on surveillance video” from the
night of the robbery. The only two witnesses who testified to viewing the surveillance video of
the armed robbery were Sergeant Terzo and Detective Barbera, and both testified that the heavyset,
bald, light-skinned robber wore clear or yellow gloves. Defendant had the opportunity to bring
any issues with the witnesses’ observations to the jury’s attention through argument and cross-
examination. In addition, the testimony of Sergeant Terzo and Detective Barbera did not call into
question the testimony of Detective Gilbert, who said that the video image of the heavyset robber

                                                -12-
matched that on defendant’s driver’s license, or the DNA evidence against defendant. In addition,
the jury was able to view the video images and defendant’s driver’s license photograph and judge
for itself whether defendant was pictured in the video. In view of this, we cannot say that the delay
resulted in prejudice to defendant arising from the impaired memories of police witnesses. See
US v Hagler, 700 F3d 1091 (CA 7, 2012) (finding that a 10-year delay did not prejudice the
defendant where the witnesses told the same basic story, defendant was able to bring any
weaknesses in their testimony to the jury’s attention through cross-examination, and the witnesses’
recollections did not call into question the physical evidence against the defendant).

        Defendant also asserts that pretrial delay resulted in the loss of the original DNA swabs of
the gloves found near the scene of the record. Defendant observes, however, that these swabs were
reported missing in September 2016. Given that the swabs were unavailable less than a year after
defendant’s arrest, he cannot show that their loss was the result of pretrial delay. Nor can he show
prejudice to the defense. Defendant’s DNA expert testified that she was able to obtain sufficient
DNA to perform an independent analysis by combining the DNA extracted from the original swabs
with DNA she extracted from the glove found in the vicinity of the robbery. In light of the
foregoing, we conclude that defendant has failed to show prejudice to his defense from pretrial
delay.

        In conclusion, although Barker factors one and three favor defendant, factors two and four
favor the prosecution. The record establishes that the pretrial delays in this case were primarily
for the purpose of ensuring that defendant was satisfied with counsel and competent to aid in his
defense and that all of defendant’s motions were heard. Nothing indicates that the delay between
arrest and trial prejudiced defendant personally or prejudiced his defense. Defendant was anxious
about the mandatory minimum sentence he faced and frustrated that proceedings did not unfold in
accordance with his expectations, but nothing in the record suggests that any personal prejudice
arose from pretrial delay. Finally, defendant’s claims of prejudice to his defense are speculative
and unsupported by the record. On the record before us, we cannot say that defendant has
established a speedy trial violation warranting reversal of his conviction.

                                       III. CONCLUSION

        We conclude that the prosecution’s evidence was sufficient to allow a jury to find beyond
a reasonable doubt that defendant committed the charged crime, that the trial court instructed the
jury in accordance with the law regarding cases involving tracking dog evidence, and that the trial
court did not abuse its discretion in scoring OVs 1, 2, and 4. In addition, we conclude that
defendant has failed to establish any due-process violations or speedy trial violations requiring
reversal.

       Affirmed.



                                                              /s/ Jane M. Beckering
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Cynthia Diane Stephens


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