            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    May 14, 2020
               Plaintiff-Appellee,

v                                                                   No. 345977
                                                                    Oakland Circuit Court
TYLER MALIEK ALLEN,                                                 LC No. 2017-262250-FC

               Defendant-Appellant.


Before: JANSEN, P.J., and METER and CAMERON, JJ.

PER CURIAM.

        Defendant, Tyler Maliek Allen, appeals his jury trial convictions of first-degree felony
murder, MCL 750.316(1)(b); two counts of armed robbery, MCL 750.529; assault with intent to
do great bodily harm less than murder (AWIGBH), MCL 750.84(1)(a); conspiracy to commit
armed robbery, MCL 750.157a, MCL 750.529; and four counts of possession of a firearm during
the commission of a felony (felony-firearm), MCL 750.227b. Allen was sentenced to life
imprisonment without the possibility of parole for his first-degree felony murder conviction, 25 to
50 years’ imprisonment for each of his armed robbery convictions, 4 to 10 years’ imprisonment
for his AWIGBH conviction, 25 to 50 years’ imprisonment for his conspiracy to commit armed
robbery conviction, and two years’ imprisonment for each of his felony-firearm convictions. We
affirm.

                                I. FACTUAL BACKGROUND

       The convictions arise from a shooting death and robbery in Southfield, Michigan, on
January 15, 2017. Allen and Jalen Smith were friends from school who reconnected in November
2016.1 On January 13, 2017, they exchanged text messages which suggested that Smith believed


1
  Smith was originally charged as a codefendant in this case, but he pleaded guilty to second-
degree murder, MCL 750.317; two counts of armed robbery; one count of conspiracy to commit
armed robbery; and three counts of felony-firearm.



                                               -1-
he had an opportunity to make money, but he needed a gun. Allen responded that he had a gun.
On January 15, 2017, Allen traveled from his home in Detroit, Michigan, to Smith’s home in
Southfield. From there, Smith called the homicide victim on his cell phone and arranged to
purchase marijuana from him. The homicide victim and the robbery victim2 drove to meet Smith
outside of a condominium building in Southfield. While Smith spoke with the homicide victim at
the driver’s side of the vehicle, Allen approached the robbery victim on the passenger side. Allen
pointed a gun at the victims and demanded that they give him “everything.” The homicide victim
shifted the car into drive, and then began to pull away. Allen fired a single shot, which struck the
homicide victim in the head and killed him. The car struck and drove up a fence, flipped onto its
side, and finally landed on its hood.

        Law enforcement was contacted, and Allen and Smith left the scene. Telephone location
data established that Allen and Smith were both in the same area in Detroit less than two hours
after the crimes were committed. Additionally, Smith sent a text message to Allen in which Smith
promised not to turn Allen in for shooting a gun in his direction. Allen and Smith continued to
exchange text messages and cell phone calls until Smith was arrested.

       On January 17, 2017, the robbery victim identified Allen from a photographic lineup
prepared by police, and police obtained Allen’s cell-phone location evidence via a court order
under the Stored Communications Act, 18 USC 2701 et seq. The police relied on those records to
track Allen to a friend’s house and arrest him as he left. The police then seized Allen’s cell phone
and forensically removed the data, which included several photographs of guns and Allen holding
guns.

        Allen was charged with first-degree felony murder; two counts of armed robbery; assault
with intent to commit murder, MCL 750.83; conspiracy to commit armed robbery; and four counts
of felony-firearm. Before trial, Allen sought to suppress the evidence of the robbery victim’s
identification and the data and photographs from his cell phone. The trial court denied those
motions. At trial, Allen asserted that he was not the person who committed the crimes. Allen
challenged the robbery victim’s identification by calling an expert witness regarding eyewitness
identification and memory, who testified that the robbery victim was likely guessing when he
identified Allen. Allen also presented alibi testimony that he was at a birthday party in Detroit on
the day, and leading into the night, of the crimes.

       The jury convicted Allen as charged, with the exception of the charge of assault with intent
to commit murder, for which he was convicted of the lesser included offense of AWIGBH. Allen
was sentenced to the terms of imprisonment as listed above. This appeal followed.

                                        II. JURY ISSUES

       In a pro se supplemental brief filed pursuant to Supreme Court Administrative Order No.
2004-6, Allen argues that he is entitled to a new trial because of errors with the jury.



2
  Although the homicide victim and the robbery victim were both victims of armed robbery, we
refer to only one of the victims as “the robbery victim” for purposes of distinguishing the victims.


                                                -2-
                      A. FAIR CROSS-SECTION OF THE COMMUNITY

        Allen first argues that the venire was not a fair cross-section of the community in violation
of his constitutional rights, or alternatively, that defense counsel was ineffective for failing to
object to that issue. We disagree.

                    1. PRESERVATION AND STANDARDS OF REVIEW

        “[T]o properly preserve a challenge to the jury array, a party must raise this issue before
the jury is empaneled and sworn.” People v McKinney, 258 Mich App 157, 161; 670 NW2d 254
(2003). There is no allegation that Allen objected to the jury pool on the basis of a challenge that
it was not a fair cross-section of the community at any point during the proceedings. Thus, this
issue is not preserved for this Court’s review. See id.

        “Unpreserved claims of constitutional error are reviewed for plain error affecting a
defendant’s substantial rights.” People v Brown, 326 Mich App 185, 192; 926 NW2d 879 (2018),
amended ___ Mich App ___ (2019) (Docket No. 339318). “To avoid forfeiture under the plain
error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e.,
clear or obvious, 3) and the plain error affected substantial rights.” People v Carines, 460 Mich
750, 763; 597 NW2d 130 (1999). In order to show that a defendant’s substantial rights were
affected, there must be “a showing of prejudice, i.e., that the error affected the outcome of the
lower court proceedings.” Id. “Reversal is warranted only when the plain, forfeited error resulted
in the conviction of an actually innocent defendant or when an error seriously affected the fairness,
integrity or public reputation of judicial proceedings independent of the defendant’s innocence.”
People v Randolph, 502 Mich 1, 10; 917 NW2d 249 (2018) (citation omitted).

        As to Allen’s alternative argument that defense counsel was ineffective, Allen failed to
raise an ineffective assistance of counsel claim in the trial court in connection with a motion for a
new trial or a Ginther3 hearing. People v Jackson (On Reconsideration), 313 Mich App 409, 431;
884 NW2d 297 (2015). Therefore, our review of this issue is limited to mistakes apparent from
the record. People v Johnson, 315 Mich App 163, 174; 889 NW2d 513 (2016).

                                    2. LAW AND ANALYSIS

        “A defendant has the right to be tried by an impartial jury drawn from a fair cross section
of the community.” Jackson, 313 Mich App at 428, citing US Const Am VI; Const 1963, art 1,
§ 20; People v Bryant, 491 Mich 575, 595; 822 NW2d 124 (2012). In Bryant, our Supreme Court
reiterated the framework for considering alleged violations of that right, which was initially
espoused by the United States Supreme Court in Duren v Missouri, 439 US 357, 364; 99 S Ct 664;
58 L Ed 2d 579 (1979):

               In Duren, the United States Supreme Court set forth a more substantive
         framework designed to evaluate fair-cross-section challenges. Specifically, to



3
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                 -3-
       make a prima facie case of a violation of the Sixth Amendment’s fair-cross-section
       requirement, a defendant must show:

               (1) that the group alleged to be excluded is a “distinctive” group in
               the community; (2) that the representation of this group in venires
               from which juries are selected is not fair and reasonable in relation
               to the number of such persons in the community; and (3) that this
               underrepresentation is due to systematic exclusion of the group in
               the jury-selection process. [Bryant, 491 Mich at 596-597.]

Our Supreme Court held that, in considering the second prong of the above analysis, “a court must
examine the composition of jury pools and venires over time using the most reliable data available
to determine whether representation is fair and reasonable.” Id. at 599-600. In this case, Allen
has not provided any such statistical data or analyses. To the contrary, Allen’s sole argument is
that his own personal jury pool was improper because the only potential juror who was black was
stricken from it. Absent any statistics on which to rely, we cannot possibly analyze this issue. “As
the appellant [], [Allen] b[ears] the burden of furnishing [this] court with a record to verify the
factual basis of any argument upon which reversal [is] predicated.” People v Elston, 462 Mich
751, 762; 614 NW2d 595 (2000). Because Allen has failed to do so here, we conclude that he is
not entitled to relief on this issue. See id.4

        Allen alternatively argues that defense counsel was ineffective for failing to object to the
jury venire. “Criminal defendants have a right to the effective assistance of counsel under the
United States and Michigan Constitutions.” People v Schrauben, 314 Mich App 181, 189-190;
886 NW2d 173 (2016), citing US Const, Am VI; Const 1963, art 1, § 20. “However, effective
assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise.”
Schrauben, 314 Mich App at 190. The United States Supreme Court has held that “in order to
receive a new trial on the basis of ineffective assistance of counsel, a defendant must establish that
‘counsel’s representation fell below an objective standard of reasonableness’ and that ‘there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’ ” People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012),
quoting Strickland v Washington, 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
“When reviewing defense counsel’s performance, the reviewing court must first objectively
‘determine whether, in light of all the circumstances, the identified acts or omissions were outside
the wide range of professionally competent assistance.’ ” Jackson, 313 Mich App at 431, quoting
Strickland, 466 US at 690. “Next, the defendant must show that trial counsel’s deficient
performance prejudiced his defense—in other words, that ‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ”
Jackson, 313 Mich App at 431, quoting Vaughn, 491 Mich at 669.




4
 To the extent that Allen is attempting to raise a challenge under Batson v Kentucky, 476 US 79;
106 S Ct 1712; 90 L Ed 2d 69 (1986), we conclude that the issue is not properly before us and was
waived. Nonetheless, to the extent that we have considered the argument, we conclude that it lacks
merit.


                                                 -4-
         This Court will not find trial counsel to be ineffective where an objection would have been
futile; nor will it second-guess matters of trial strategy. People v Thomas, 260 Mich App 450,
457; 678 NW2d 631 (2004); People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999).
“The defendant ‘bears the burden of demonstrating both deficient performance and prejudice[;]
the defendant [also] necessarily bears the burden of establishing the factual predicate for his
claim.’ ” People v Cooper, 309 Mich App 74, 80; 867 NW2d 452 (2015), quoting People v Carbin,
463 Mich 590, 600; 623 NW2d 884 (2001) (alteration in Cooper).

        As discussed, Allen has failed to provide this Court with any statistical data or analyses to
support his argument that his right to have a jury selected from a fair cross-section of the
community was violated. Allen was required to provide that statistical data in order to prove a
violation of his constitutional right. Bryant, 491 Mich at 599-600. Having failed to do so, Allen
also has failed to create the factual predicate for his claim of ineffective assistance of counsel.
Cooper, 309 Mich App at 80. Specifically, without the statistics, Allen cannot prove that defense
counsel was ineffective for failing to object to the jury venire. Id. Consequently, we conclude that
Allen is not entitled to relief on his claim of ineffective assistance of counsel.

                                 B. SWEARING-IN THE JURY

        Allen also argues that there were issues with the trial court’s swearing-in of the jury, or
alternatively, that defense counsel was ineffective for failing to object to the issue. We disagree.

                    1. PRESERVATION AND STANDARDS OF REVIEW

        In order to preserve an argument that the jury was not properly sworn, a defendant must
provide a timely objection. People v Cain, 498 Mich 108, 114; 869 NW2d 829 (2015). There is
no dispute in this case that Allen did not object to the language of the oath used to swear-in the
jury. Thus, this issue is not preserved for this Court’s review, and we review for plain-error
affecting substantial rights. See Cain, 498 Mich at 114-115.

        In order to preserve Allen’s alternative argument that defense counsel was ineffective,
Allen was required to “move the trial court for a new trial or a Ginther hearing.” Jackson, 313
Mich App at 431. Because Allen did neither, this issue is unpreserved, see id., and our review “is
limited to mistakes apparent on the record,” Johnson, 315 Mich App at 174.

                                    2. LAW AND ANALYSIS

     “After the jury is selected and before trial begins, the court must have the jurors sworn.”
MCR 6.412(F). “[MCR] 2.511 govern[s] the procedure for selecting and impaneling the jury.”
MCR 6.412(A). The jury must be sworn by the clerk substantially as follows:

                       “Each of you do solemnly swear (or affirm) that, in this
               action now before the court, you will justly decide the questions
               submitted to you, that, unless you are discharged by the court from
               further deliberation, you will render a true verdict, and that you will
               render your verdict only on the evidence introduced and in
               accordance with the instructions of the court, so help you God.”
               [MCR 2.511(H)(1).]


                                                -5-
“The oath imposes on the jurors three duties: (1) to ‘justly decide the questions submitted,’ (2) to
‘render a true verdict,’ and (3) to do these things ‘only on the evidence introduced and in
accordance with the instructions of the court.’ ” Cain, 498 Mich at 121, quoting MCR
2.511(H)(1).5 In Cain, 498 Mich at 121-122, our Supreme Court held that the failure to read the
instructions verbatim from the court rule was not a plain error requiring a new trial, so long as the
instructions that actually were given satisfactorily apprised the jurors of the three duties listed
above. The Cain Court reasoned that although the trial court failed to read the language of the
court rule exactly, “we have no reason to believe that the jurors in this case as a result of these
alternative efforts to inculcate in them a proper sense of their obligations did not understand the
dignity and solemnity of the proceedings.” Id. at 123-124.

        In this case, Allen argues that the trial court erred by failing to require the jurors to raise
their right hand while being sworn and by improperly reading the jury oath. A review of the
transcript reveals that the following occurred:

               The Court: Okay. The folks whose names have not been called, I’d ask
       you to please stay where you are for just a moment and I’d ask the 14 of you to
       please stand and raise your right hands to be sworn as the jury in the case.

               The Clerk: Do you swear that will [sic] and truly try [sic] the issue pending
       before the Court and unless discharged by the Court render a true verdict and you
       will do so solely on the evidence introduced and in accordance with the instructions
       of the Court so help you God, if so say “I do”.

               Jurors: I do.

Afterward, while beginning to read the preliminary jury instructions, the trial court informed the
jurors that he was giving them a printed copy of the oath and that they should “[j]ust keep it in
mind that that pertains and—throughout the case obviously.”

        First, addressing the allegation by Allen that the trial court failed to instruct the jurors to
raise their right hands, the record clearly supports that the trial court did indeed tell the jurors to
“raise [their] right hands to be sworn as the jury . . . .” Thus, Allen’s argument is without factual
merit, and he is not entitled to relief on this issue.

       Allen also argues that the trial court erred by not correcting the misreading of the oath. As
quoted above, the oath was read using substantially similar language to MCR 2.511(H)(1). More
importantly, the jurors were instructed on the three important duties on which our Supreme Court
in Cain, 498 Mich at 121, was most focused. Specifically, the jurors swore that they would “truly


5
  While the statute regarding swearing-in a jury, MCL 768.14, contains different language for the
oath, the three duties imposed upon the jurors remain the same. “You shall well and truly try, and
true deliverance make, between the people of this state and the prisoner at bar, whom you shall
have in charge, according to the evidence and the laws of this state; so help you God.” We rely on
the language of MCR 2.511(H)(1), rather than the statute, because our Supreme Court also relied
on the court rule in Cain, 498 Mich at 121-122.


                                                 -6-
try the issue pending before the Court,” “render a true verdict,” and would “do so solely on the
evidence introduced and in accordance with the instructions of the Court . . . .” Those instructions
are substantially similar, and at times identical, to the three duties discussed by our Supreme
Court—that a jury must swear “(1) to ‘justly decide the questions submitted,’ (2) to ‘render a true
verdict,’ and (3) to do these things ‘only on the evidence introduced and in accordance with the
instructions of the court.’ ” Cain, 498 Mich at 121, quoting MCR 2.511(H)(1). Although they
swore to a slightly misworded oath, it was appropriate in substance. The jurors were also provided
with a physical copy of the oath and were told by the trial court to keep that oath in mind throughout
the case. In light of these facts, like in Cain, 498 Mich at 121-124, there is no reason to believe
that the jury in this case did not fully comprehend and abide by the duties they swore to uphold.
Consequently, there was no plain error requiring reversal in this case. Id.

        Allen alternatively argues that defense counsel was ineffective for failing to object to the
alleged errors with the jury oath. However, as just discussed, Allen’s allegations of error were
without merit, meaning that any objection by defense counsel would have been futile. This Court
will not find counsel to be ineffective where a proposed objection would have been without merit
if made. Thomas, 260 Mich App at 457. Thus, Allen’s alternative argument of ineffective
assistance of counsel also lacks merit. See id.

                            III. SUFFICIENCY OF THE EVIDENCE

        Allen, in his Standard 4 brief, argues that there was insufficient evidence to sustain his
first-degree felony murder, armed robbery, and conspiracy to commit armed robbery convictions.
We disagree.

                                  A. STANDARD OF REVIEW

       “We review de novo a challenge on appeal to the sufficiency of the evidence.” People v
Henry, 315 Mich App 130, 135; 889 NW2d 1 (2016), quoting People v Ericksen, 288 Mich App
192, 195; 793 NW2d 120 (2010). “To determine whether the prosecutor has presented sufficient
evidence to sustain a conviction, we review the evidence in the light most favorable to the
prosecutor and determine ‘whether a rational trier of fact could find the defendant guilty beyond a
reasonable doubt.’ ” People v Smith-Anthony, 494 Mich 669, 676; 837 NW2d 415 (2013), quoting
People v Tennyson, 487 Mich 730, 735; 790 NW2d 354 (2010). “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 Bailey, 310 Mich App 703, 713; 873 NW2d 855
(2015), quoting People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).

                                    B. LAW AND ANALYSIS

       There is sufficient evidence for a guilty verdict where “a rational trier of fact could find the
defendant guilty beyond a reasonable doubt.” Tennyson, 487 Mich at 735. (citation omitted.)
“The prosecution need not negate every reasonable theory of innocence, but need only prove the
elements of the crime in the face of whatever contradictory evidence is provided by the defendant.”
People v Henderson, 306 Mich App 1, 9; 854 NW2d 234 (2014), overruled in part on other grounds
by People v Reichard, ___ Mich ___; ___ NW2d ___ (2019). “Circumstantial evidence and the
reasonable inferences that arise from that evidence can constitute satisfactory proof of the elements



                                                 -7-
of the crime.” People v Blevins, 314 Mich App 339, 357; 886 NW2d 456 (2016). Any and all
conflicts that arise in the evidence must be resolved “in favor of the prosecution.” Henderson, 306
Mich App at 9. “It is for the trier of fact, not the appellate court, to determine what inferences may
be fairly drawn from the evidence and to determine the weight to be accorded those inferences.”
People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002).

       Allen was convicted of first-degree felony murder, the elements of which are

       (1) the killing of a human being, (2) with the intent to kill, to do great bodily harm,
       or to create a very high risk of death or great bodily harm with knowledge that death
       or great bodily harm was the probable result, (3) while committing, attempting to
       commit, or assisting in the commission of any of the felonies specifically
       enumerated in MCL 750.316(1)(b). [People v Bass, 317 Mich App 241, 267; 893
       NW2d 140 (2016), quoting People v Gayheart, 285 Mich App 202, 210; 776 NW2d
       330 (2009).]

Two of the predicate crimes for first-degree felony murder, MCL 750.316(1)(b), are “larceny of
any kind” and “robbery”, which were the predicate felonies listed in Allen’s third-amended general
information.

        Allen also was convicted of armed robbery. This Court recently restated “[t]he elements
necessary to prove armed robbery under MCL 750.529” in People v Muhammad, 326 Mich App
40, 61; 931 NW2d 20 (2018) (citation omitted):

       (1) [T]he defendant, in the course of committing a larceny of any money or other
       property that may be the subject of a larceny, used force or violence against any
       person who was present or assaulted or put the person in fear, and (2) the defendant,
       in the course of committing the larceny, either possessed a dangerous weapon,
       possessed an article used or fashioned in a manner to lead any person present to
       reasonably believe that the article was a dangerous weapon, or represented orally
       or otherwise that he or she was in possession of a dangerous weapon.

Pertinently, the armed robbery statute requires the commission or attempted commission of “a
larceny of any money or other property . . . .” Id. See also People v Williams, 491 Mich 164, 183;
814 NW2d 270 (2012) (holding that a defendant “may be guilty of armed robbery even if the
larcenous taking is not completed.”).

         Allen also challenges his conviction of conspiracy to commit armed robbery. “A criminal
conspiracy is a partnership in criminal purposes, under which two or more individuals voluntarily
agree to effectuate the commission of a criminal offense.” People v Jackson, 292 Mich App 583,
588; 808 NW2d 541 (2011). Stated differently, “[t]he crime of conspiracy involves a defendant’s
course of conduct and is based upon an unlawful agreement between coconspirators.” People v
Grant, 455 Mich 221, 236; 565 NW2d 389 (1997). “Conspiracy is a specific-intent crime, because
it requires both the intent to combine with others and the intent to accomplish the illegal objective.”
People v Mass, 464 Mich 615, 629; 628 NW2d 540 (2001). “Thus, there must be proof showing
that the parties specifically intended to further, promote, advance, or pursue an unlawful
objective.” Jackson, 292 Mich App at 588 (quotation marks and citation omitted). However,



                                                 -8-
“[d]irect proof of a conspiracy is not required; rather, proof may be derived from the
circumstances, acts, and conduct of the parties.” Id. (quotation marks and citation omitted).

         Allen’s first argument is generally to all four of the challenged convictions. Specifically,
Allen asserts that there was insufficient evidence of his identity as the perpetrator of the crimes.
“[I]t is well settled that identity is an element of every offense.” People v Yost, 278 Mich App
341, 356; 749 NW2d 753 (2008). “[T]his Court has stated that positive identification by witnesses
may be sufficient to support a conviction of a crime,” and that “[t]he credibility of identification
testimony is a question for the trier of fact that we do not resolve anew.” People v Davis, 241
Mich App 697, 700; 617 NW2d 381 (2000). A perpetrator’s identity can be established by
evidence that is entirely “circumstantial and sometimes requires reliance on an inference founded
on an inference . . . .” Bass, 317 Mich App at 264. Moreover, “[e]ven in a case relying on
circumstantial evidence, the prosecution need not negate every reasonable theory consistent with
the defendant’s innocence, but need merely introduce evidence sufficient to convince a reasonable
jury in the face of whatever contradictory evidence the defendant may provide.” People v James,
327 Mich App 79, 87; 932 NW2d 248 (2019) (quotation marks and citation omitted).

        There was sufficient evidence that Allen agreed with Smith that he would commit an armed
robbery with him and that Allen attempted to rob both of the victims and that he shot and killed
the homicide victim. During trial, Allen admitted that the cell phone number that had been used
in conversations with Smith belonged to Allen, and he also acknowledged sending and receiving
text messages to and from Smith. The police performed forensic examinations of both Allen’s and
Smith’s cell phones, which revealed a conversation between Smith and Allen that implied that the
two were setting up an armed robbery. Specifically, two days before the crimes were committed,
Smith sent a text message to Allen asking him if he had “scrap,” which a police officer testified
meant a weapon or gun. Allen responded affirmatively, and asked why Smith was interested.
Smith responded that he might have a “play.” On the day of the crime, Allen and Smith exchanged
cell phone calls on a number of occasions. Most importantly, Smith sent Allen a text message
with the address for the Kingswood Condominiums—the same address Smith gave to the homicide
victim in order to effectuate the marijuana transaction. According to Allen’s cell phone location
records, he traveled from his home in Detroit to Southfield, where he remained until the crimes
were committed. This circumstantial evidence supports that Smith and Allen made an agreement
to commit an armed robbery. They discussed whether Allen would bring a gun to effectuate the
crime, Smith told Allen where to go, and Allen actually traveled to the location. That evidence
was sufficient to establish that Allen agreed to commit armed robbery, thereby satisfying the
identity element of conspiracy to commit armed robbery. See Jackson, 292 Mich App at 588.

        This evidence was also relevant to establish Allen’s identity as the person who actually
committed the armed robberies and the first-degree felony murder. Specifically, Allen and Smith
discussed bringing a weapon for a “play,” Smith sent Allen the address where the robberies and
the murder occurred, and Allen traveled to that same area about two hours before the crimes
occurred. Additionally, at trial, the robbery victim identified Allen as the person who pointed the
gun at him, demanded everything in the vehicle, and then shot the homicide victim when he
attempted to drive away. The robbery victim also identified Allen in a photographic lineup two
days after the crime, which was admitted as evidence at trial.




                                                -9-
        Allen asserts that the robbery victim’s identification was not credible for several reasons,
which will be discussed in greater depth later in this opinion. However, it is undisputed that the
jury was well aware of the factors suggesting that the robbery victim’s recollection of the identity
of the shooter could be inaccurate. Most importantly, the jury heard significant testimony from an
expert in eyewitness identification and memory. Despite being aware of all of the mitigating
factors regarding the reliability of the robbery victim’s memory, the jury still chose to believe the
robbery victim’s testimony. As this Court has held, “[t]he credibility of identification testimony
is a question for the trier of fact that we do not resolve anew.” Davis, 241 Mich App at 700.

        In addition to the eyewitness testimony identifying Allen as the perpetrator of these crimes,
there was also circumstantial evidence of Allen’s identity. As already discussed, there was
evidence presented from which an inference could be made that Allen discussed robbing the
homicide victim with Smith, obtained the address where the robbery was to occur from Smith, and
then traveled there. Also, Allen’s cell phone data revealed that Allen’s cell phone was in the area
of the crime scene until after it was committed. There was also evidence that Smith’s car arrived
at a parking lot within walking distance of the scene of the crimes minutes before the crimes
occurred, and then left that parking lot several minutes later. Based on this evidence, a reasonable
jury could infer that Allen was in the car with Smith at the time.

        Allen contends that the circumstantial evidence only established that he was in the vicinity
of the crimes when they were committed, not that he actually committed them, and thus, was not
sufficient to sustain his convictions beyond a reasonable doubt. Even disregarding that Allen
ignores the other significant evidence of his identity as the perpetrator of the crimes in this case,
his argument is also without merit because Allen’s presence in the area allowed for an inference
that he had an opportunity to commit the crimes. As this Court has held, “[e]vidence of opportunity
is logically relevant in a prosecution for murder.” People v Unger, 278 Mich App 210, 224; 749
NW2d 272 (2008). Thus, the cell phone location and other circumstantial evidence was not
necessarily determinative, but it was relevant because it allowed the jury to infer that Allen had an
opportunity to commit the crimes. Id.

         There was additional circumstantial evidence of Allen’s identity as the perpetrator of the
crimes in this case. Allen’s cell phone data revealed that Allen’s cell phone was in Detroit about
30 minutes after the crimes occurred. Smith and Allen continued to exchange several cell phone
calls in the hours following the crimes. Indeed, Smith even sent a text message to Allen in which
Smith essentially forgave Allen for shooting a gun in his direction. Additionally, Smith was in a
gas station in Detroit about 90 minutes after the crimes were committed, and he told the clerk that
a gun had been fired in his direction. At that time, both Allen’s and Smith’s cell phones were
“pinging” the cell tower by the gas station. Additionally, Allen had photographs on his cell phone
of guns that could have fired the bullet that killed the homicide victim, as well as photographs of
Allen carrying those guns, and even one of Allen with a handgun with an extended magazine that
matched the robbery victim’s description of the weapon used to commit the crimes in this case.
“Evidence of a defendant’s possession of a weapon of the kind used in the offense with which he
is charged is routinely determined by courts to be direct, relevant evidence of his commission of
that offense.” People v Hall, 433 Mich 573, 580-581; 447 NW2d 580 (1989). Furthermore, about
two hours after the crimes were committed, several of those photographs were deleted from Allen’s
cell phone. Also, Allen attempted to delete evidence that he had visited a news website that issued
a story about the murder. Allen’s actions, which “could be viewed as an effort to destroy evidence


                                                -10-
of the crime,” allowed for a reasonable juror to infer that Allen had “a consciousness of guilt.”
Unger, 278 Mich App at 226.

        Despite being circumstantial, all of that evidence showed that Allen had access to the type
of gun that killed the homicide victim, that he had entered an agreement with Smith to rob the
homicide victim, that he had actually robbed both victims at gunpoint, that he had shot and killed
the homicide victim, and that he had then attempted to cover up his involvement in the crimes. As
this Court has held, the prosecution was permitted to prove Allen’s identity by evidence that is
entirely “circumstantial and sometimes requires reliance on an inference founded on an
inference . . . .” Bass, 317 Mich App at 264. In this case, however, such reliance is unnecessary
where there was also direct evidence of Allen’s identity as the perpetrator of the crimes—the
robbery victim’s photographic and in-person identifications of Allen. Consequently, given all of
the direct and circumstantial evidence just discussed, there was sufficient evidence that Allen was
the individual who committed the crimes in this case.

        Allen also argues that there was insufficient evidence to support his armed robbery
conviction because there was no proof that anything was actually stolen from the victims. The
record shows that Allen approached the passenger-side window of the homicide victim’s vehicle,
pointed his gun at the victims, and said, “Let me get everything.” The robbery victim testified that
Allen was attempting to rob them. Before the theft could be completed, the homicide victim
attempted to drive away and was shot, which caused his death and the vehicle he was driving to
be overturned. There was no evidence on the record that any larcenous taking by Allen or Smith
actually occurred. Even so, Allen’s argument lacks merit because determinative and binding
Michigan caselaw provides that a defendant “may be guilty of armed robbery even if the larcenous
taking is not completed.” Williams, 491 Mich at 183. Thus, that Allen did not complete the larceny
does not require reversal of his convictions. See id.

         Lastly, Allen contends that there was insufficient evidence to sustain his convictions
because he had an alibi. The record supports that at least two of Allen’s alibi witnesses specifically
testified that Allen was in Detroit at a birthday party at the time the crimes were committed.
However, “[t]he prosecution need not negate every reasonable theory of innocence, but need only
prove the elements of the crime in the face of whatever contradictory evidence is provided by the
defendant.” Henderson, 306 Mich App at 9. As discussed, the prosecution presented sufficient
evidence that Allen committed the crimes challenged, even though Allen’s witnesses stated
otherwise. The prosecution was not required to disprove those alibi witnesses. Id. Additionally,
the prosecution also elicited testimony from the alibi witnesses that Allen was a friend of their
family. In other words, they had a previous relationship with Allen. Our Supreme Court has held
that an alibi witness’s “relationship with the defendant [is] relevant to [their] credibility.” People
v Mateo, 453 Mich 203, 210; 551 NW2d 891 (1996). Therefore, on top of the evidence proving
that Allen actually committed the crimes, the prosecution also presented evidence that undermined
the alibi witnesses’ credibility. Id. It was in the province of the jury to believe the prosecution’s
witnesses instead Allen’s alibi witnesses, and this Court will not disturb the jury’s credibility
determinations. Hardiman, 466 Mich at 428. Indeed, any and all conflicts that arise in the evidence
must be resolved “in favor of the prosecution.” Henderson, 306 Mich App at 9. Consequently,
this argument by Allen is also without merit. Id.




                                                -11-
                  IV. SUPPRESSION OF EVIDENCE FROM CELL PHONE

       Allen argues that the trial court erred by denying his motion to suppress the data and
photographs obtained from his cell phone. We disagree.

                                  A. STANDARD OF REVIEW

       “A trial court’s findings of fact on a motion to suppress are reviewed for clear error . . . .”
People v Hrlic, 277 Mich App 260, 262-263; 744 NW2d 221 (2007). “Clear error exists when the
reviewing court is left with a definite and firm conviction that a mistake was made.” Blevins, 314
Mich App at 348-349. “But the application of constitutional standards regarding searches and
seizures to essentially uncontested facts is entitled to less deference; for this reason, we review de
novo the trial court’s ultimate ruling on the motion to suppress.” People v Williams, 472 Mich
308, 313; 696 NW2d 636 (2005).

                                    B. LAW AND ANALYSIS

         First, it is important to outline what evidence Allen challenges and what admissions the
prosecution essentially makes. Allen argues that the data from his cell phone should have been
suppressed because it was the fruit of the poisonous tree. The prosecution, on the other hand,
effectively admits that the search was unconstitutional under the current standard espoused by the
United States Supreme Court, which we discuss below. Nevertheless, the prosecution argues that
because the search was conducted according to federal statutes that were considered constitutional
at the time, suppression was not warranted under the good-faith exception to the exclusionary rule,
or, alternatively, under the independent-discovery exception to the same rule. Given the
prosecution’s essential admission, we will focus our analysis on the exceptions to the rule.

        The United States Supreme Court in Carpenter v United States, 585 US ___, ___; 138 S
Ct 2206, 2213; 201 L Ed 2d 507 (2018) (citations omitted), provided a brief summary of
constitutional law related to Fourth Amendment jurisprudence:

               The Fourth Amendment protects “[t]he right of the people to be secure in
       their persons, houses, papers, and effects, against unreasonable searches and
       seizures.” The “basic purpose of this Amendment,” our cases have recognized, “is
       to safeguard the privacy and security of individuals against arbitrary invasions by
       governmental officials.” The Founding generation crafted the Fourth Amendment
       as a “response to the reviled ‘general warrants’ and ‘writs of assistance’ of the
       colonial era, which allowed British officers to rummage through homes in an
       unrestrained search for evidence of criminal activity.” In fact, as John Adams
       recalled, the patriot James Otis’s 1761 speech condemning writs of assistance was
       “the first act of opposition to the arbitrary claims of Great Britain” and helped spark
       the Revolution itself.

               For much of our history, Fourth Amendment search doctrine was “tied to
       common-law trespass” and focused on whether the Government “obtains
       information by physically intruding on a constitutionally protected area.” More
       recently, the Court has recognized that “property rights are not the sole measure of
       Fourth Amendment violations.” . . . [W]e established that “the Fourth Amendment


                                                -12-
       protects people, not places,” and expanded our conception of the Amendment to
       protect certain expectations of privacy as well. When an individual “seeks to
       preserve something as private,” and his expectation of privacy is “one that society
       is prepared to recognize as reasonable,” we have held that official intrusion into
       that private sphere generally qualifies as a search and requires a warrant supported
       by probable cause.

“In Weeks v United States, 232 US 383; 34 S Ct 341; 58 L Ed 652 (1914), the United States
Supreme Court held that, in a federal prosecution, the Fourth Amendment barred the use of
evidence obtained pursuant to an illegal search or seizure.” People v Goldston, 470 Mich 523,
528; 682 NW2d 479 (2004). “In Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961),
the United States Supreme Court extended the Weeks exclusionary rule to the states.” Goldston,
470 Mich at 528.

         In this case, police obtained Allen’s cell phone location information on January 17, 2017,
on the basis of an order obtained under the federal Stored Communications Act, 18 USC 2701 et
seq. Under that statutory scheme, in order to obtain the cellular-location evidence, the police only
needed to prove that “there are reasonable grounds to believe that the contents of a wire or
electronic communication, or the records or other information sought, are relevant and material to
an ongoing criminal investigation.” 18 USC 2703(d). Using that location evidence, at least in
part, the police tracked Allen to a friend’s house, surveilled the home, and then arrested Allen as
he left. During his arrest, the police seized Allen’s cell phone. Later, after obtaining a valid search
warrant, the police downloaded and analyzed the data on the cell phone. Much of that evidence
was used against Allen during the trial, including text messages, web history, photographs of guns,
photographs of Allen with guns, and evidence that some of those items were deleted hours after
the crimes were committed.

        In Carpenter, 585 US at ___; 138 S Ct at 2221, the United States Supreme Court held that
“the acquisition of [an individual’s cell-site location information (CSLI)] was a search,” and thus,
“also conclude[d] that the Government must generally obtain a warrant supported by probable
cause before acquiring such records.” Further, the Carpenter Court ruled that the standard of
“reasonable grounds” under the Stored Communications Act fell “well short of the probable cause
required for a warrant.” Id. “Consequently, an order issued under Section 2703(d) of the Act is
not a permissible mechanism for accessing historical cell-site records.” Carpenter, 585 US at ___;
138 S Ct at 2221. “Before compelling a wireless carrier to turn over a subscriber’s CSLI, the
Government’s obligation is a familiar one—get a warrant.” Id.

        In this case, the prosecution acknowledges that, under Carpenter, the police were required
to get a warrant before obtaining and using Allen’s cell phone location evidence. Because they
failed to do so, the prosecution also acknowledges that the search was unconstitutional. Therefore,
the only question remaining for this Court to consider is whether the exclusionary rule should
apply.

        The prosecution first contends that the good-faith exception to the exclusionary doctrine
applies. Our Supreme Court in Goldston, 470 Mich at 529, noted that the United States Supreme
Court had “clarified that whether the exclusion of evidence is an appropriate sanction in a
particular case is a separate issue from whether police misconduct violated a person’s Fourth


                                                 -13-
Amendment rights.” The Court in Goldston, then provided the following structure for analyzing
that question:

               The Court further stated that whether invocation of the “judicially created
       remedy” is appropriate involves weighing the costs and benefits in each particular
       case. The primary benefit of the exclusionary rule is that it deters official
       misconduct by removing incentives to engage in unreasonable searches and
       seizures. The costs, however, include preventing the use in the prosecutor’s case-
       in-chief of trustworthy evidence obtained in reliance on a search warrant
       subsequently found to be defective.

               The Court expressed concern that rigid adherence to the exclusionary rule,
       particularly when law enforcement officers act in good faith or when their
       transgressions are minor, “offends basic concepts of the criminal justice system”
       and breeds contempt for the law and the administration of justice. Thus, the Court
       recognized the potential for the exclusionary rule to impede the truth-seeking
       function of the judiciary, resulting in guilty parties either evading punishment
       altogether or receiving favorable plea bargains. The Court concluded that “the
       marginal or nonexistent benefits produced by suppressing evidence obtained in
       objectively reasonable reliance on a subsequently invalidated search warrant cannot
       justify the substantial costs of exclusion.” [Goldston, 470 Mich at 529-530
       (citations omitted).]

In sum, “the exclusionary rule should be employed on a case-by-case basis and only where
exclusion would further the purpose of deterring police misconduct.” Id. at 531.

        As discussed, however, police reliance on a court order permitting a search must be in
“good faith.” Consequently, there are limits regarding what orders could be properly relied upon
by the police under the good-faith exception. First, the police’s reliance on the decision of the
court or magistrate must be “objectively reasonable.” Id. Second, suppression is still warranted
where “the issuing magistrate or judge is misled by information in the affidavit that the affiant
either knew was false or would have known was false except for his reckless disregard of the
truth.” Id. Finally, “the good-faith exception does not apply where the magistrate wholly abandons
his judicial role or where an officer relies on a warrant based on an affidavit so lacking in indicia
of probable cause as to render official belief in its existence entirely unreasonable.” Id. (quotation
marks and citation omitted).

        In this case, the police who requested the order and the magistrate who issued the order
relied on the Stored Communications Act. At that time, January 17, 2017, the United States
Supreme Court had yet to decide Carpenter, which was issued on June 22, 2018. In Illinois v
Krull, 480 US 340, 352; 107 S Ct 1160; 94 L Ed 2d 364 (1987), the United States Supreme Court
held that “[t]here is nothing to indicate that applying the exclusionary rule to evidence seized
pursuant to [a] statute prior to the declaration of its invalidity will act as a significant, additional
deterrent.” The good-faith exception as applied to statutes, however, has limitations:

               A statute cannot support objectively reasonable reliance if, in passing the
       statute, the legislature wholly abandoned its responsibility to enact constitutional


                                                 -14-
       laws. Nor can a law enforcement officer be said to have acted in good-faith reliance
       upon a statute if its provisions are such that a reasonable officer should have known
       that the statute was unconstitutional. [Id. at 355.]

The police’s reliance on the Stored Communications Act was objectively reasonable because there
was United States Appellate Court caselaw holding that the statute was constitutional. Before the
Carpenter decision, the United States Circuit Court of Appeals for the Sixth Circuit had held that
the Stored Communications Act was constitutional, reasoning that the obtainment of cellular-
location evidence did not qualify as a search under the Fourth Amendment. United States v
Carpenter, 819 F3d 880, 887 (CA 6, 2016), rev’d 585 US ___; 138 S Ct 2206 (2018). 6 Thus, at
the time the police used the cellular-location data to find Allen, arrested him, and seized his cell
phone, the available constitutional law on the subject indicated that the Stored Communications
Act was not suspect. In light of that, the situation presented in this case involves police relying on
a federal statute that had been held to pass constitutional muster by the Sixth Circuit Court of
Appeals. On the basis of those facts, it is clear that the police’s reliance on the Stored
Communications Act was objectively reasonable, and thus, the good-faith exception to the
exclusionary rule applies in this case. Krull, 480 US at 352. Indeed, when the Sixth Circuit heard
Carpenter on remand, it held similarly: “The district court nevertheless properly denied
suppression because the [government] relied in good faith on the [Stored Communications Act]
when they obtained the data.” United States v Carpenter (On Remand), 926 F3d 313, 318 (CA 6,
2019), vacated on other grounds on rehearing 788 F Appx 364 (CA 6, 2019). We now reach the
same conclusion in this case.

                                 V. PROSECUTORIAL ERROR

        Allen, in his Standard 4 brief on appeal, argues that the prosecution committed error
requiring reversal. We disagree.

                     A. PRESERVATION AND STANDARD OF REVIEW

        In cases alleging prosecutorial error, issues are “preserved by contemporaneous objections
and requests for curative instructions . . . .” People v Mullins, 322 Mich App 151, 172; 911 NW2d
201 (2017) (quotation marks and citation omitted). Allen contends the prosecution committed
error by relying on a falsified affidavit in support of a search warrant. Allen did not object to that




6
  The United States Supreme Court extended the good-faith exception to include situations where
the police rely on binding judicial precedent before it is overruled. Davis v United States, 564 US
229, 241; 131 S Ct 2419; 180 L Ed 2d (2011) (“Evidence obtained during a search conducted in
reasonable reliance on binding precedent is not subject to the exclusionary rule.”) Sixth Circuit
precedent, however, is not binding on Michigan courts. Abela v Gen Motors Corp, 469 Mich 603,
606; 677 NW2d 325 (2004), cert den 543 US 870; 125 S Ct 98; 160 L Ed 2d 117 (2004). Thus,
while the Sixth Circuit’s 2016 decision in Carpenter supports the prosecution’s allegation that the
police’s reliance on the federal statutes was objectively reasonable, it does not supply its own
grounds for applying the good-faith exception to the exclusionary rule.


                                                -15-
alleged incident of prosecutorial error or request a curative instruction during trial. Thus, that
allegation is not preserved for this Court’s review. Id.

       “Claims of prosecutorial [error] are generally reviewed de novo to determine whether the
defendant was denied a fair trial.” People v Dunigan, 299 Mich App 579, 588; 831 NW2d 243
(2013). However, because this issue has not been preserved for review, this Court must review
the “unpreserved claim for plain error affecting [Allen’s] substantial rights.” People v Roscoe,
303 Mich App 633, 648; 846 NW2d 402 (2014).

                                    B. LAW AND ANALYSIS

         “Given that a prosecutor’s role and responsibility is to seek justice and not merely convict,
the test for prosecutorial [error] is whether a defendant was denied a fair and impartial trial.”
People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). “We must evaluate instances of
prosecutorial [error] on a case-by-case basis, reviewing the prosecutor’s [actions] in context and
in light of the defendant’s arguments.” People v Lane, 308 Mich App 38, 62-63; 862 NW2d 446
(2014) (citation omitted). “A prosecutor’s good-faith effort to admit evidence does not constitute
misconduct.” Dobek, 274 Mich App at 70. This Court has summarized the law regarding
allegations that the prosecution relied on perjured testimony to obtain a conviction:

               It is well settled that a conviction obtained through the knowing use of
       perjured testimony offends a defendant’s due process protections guaranteed under
       the Fourteenth Amendment. If a conviction is obtained through the knowing use
       of perjured testimony, it must be set aside if there is any reasonable likelihood that
       the false testimony could have affected the judgment of the jury. Stated differently,
       a conviction will be reversed and a new trial will be ordered, but only if the tainted
       evidence is material to the defendant’s guilt or punishment. Thus, it is the
       misconduct’s effect on the trial, not the blameworthiness of the prosecutor, which
       is the crucial inquiry for due process purposes. The entire focus of our analysis
       must be on the fairness of the trial, not on the prosecutor’s or the court’s culpability.
       [Bass, 317 Mich App at 272-273 (citation omitted).]

         Allen argues that the prosecution knowingly used evidence that was obtained on the basis
of a perjured search warrant affidavit from a police officer. The record reveals otherwise. Allen
first argues that the police officer lied in the affidavit about the robbery victim identifying him in
a photographic lineup. Allen’s assertion relies on an allegation that the police officer made the
averment before the photographic lineup actually took place. However, a review of the record
shows that the robbery victim identified Allen in the photographic lineup on the evening of
January 17, 2017, and the affidavit was signed on the morning of January 18, 2017. Thus, there is
no factual support for Allen’s allegation that a police officer perjured himself in an affidavit.

        Allen also contends that the police officer lied in the affidavit by stating that he discovered
that the cell phone number used to contact Smith belonged to Allen. The affidavit contained the
following statement: “Affiant was able to locate the number in Accurint and it [was] registered to
Tyler Allen.” Allen asserts that this cannot be true because the cell phone number in question was
registered in his mother’s name. Allen, however, has not provided any proof in support of his
allegation, nor has he provided any evidence that the system, Accurint, relies on cell phone


                                                 -16-
registration information. Indeed, Allen testified at trial that the cell phone number in question
belonged to him and that he had previously been convicted of second-degree home invasion. Thus,
it was possible that the police officer found that the cell phone number belonged to Allen because
Allen himself provided it to law enforcement after his prior conviction. Absent any factual proof
that the statement in the affidavit was not true, this Court has not been provided any ground to
determine that there was prosecutorial error. See Elston, 462 Mich at 762. Consequently, Allen
is not entitled to relief.

                                  VI. PHOTOGRAPHIC LINEUP

       Allen argues that the trial court erred by denying his motion to suppress the robbery
victim’s identification in an allegedly unduly suggestive photographic lineup. Because Allen has
abandoned this issue on appeal, we disagree.

                                   A. STANDARD OF REVIEW

         “A trial court’s decision to admit identification evidence will not be reversed unless it is
clearly erroneous.” Blevins, 314 Mich App at 348. “Clear error exists when the reviewing court
is left with a definite and firm conviction that a mistake was made.” Id. at 348-349.

                                        B. ABANDONMENT

        We conclude that Allen abandoned this issue on appeal by failing to make any argument
as to why the photographic lineup was unduly suggestive. Indeed, in his brief on appeal, Allen
has not identified a single problem with the photographic lineup that would render it unduly
suggestive. Instead, Allen focuses his argument on the alleged unreliability of the robbery victim’s
memory considering the circumstances of the crime, which was the only time the robbery victim
saw the perpetrator of the crime. Specifically, Allen contends that the robbery victim’s memory
was questionable because the event was stressful, the robbery victim had smoked a significant
amount of marijuana before seeing Allen, it was dark outside at the time the crimes were
committed, and Allen was otherwise a stranger to the robbery victim. Under the test espoused by
our Supreme Court in People v Gray, 457 Mich 107, 115; 577 NW2d 92 (1998), however, such
questions regarding the witness’s memory only affect admissibility after the determination has
been made that a photographic lineup was unduly suggestive. This is because once a photographic
lineup has been suppressed for that reason, the trial court must next consider whether there is an
independent basis for the admission of a witness’s in-court identification. Id. Unless a
photographic lineup is determined to be unduly suggestive, issues with a witness’s memory and
its foundations are only relevant to the weight to be given to the identification, not its admissibility.
Id.; Davis, 241 Mich App at 705.

        In light of that, Allen has failed to make any argument regarding why the photographic
lineup was unduly suggestive, why it would be inadmissible, or why the robbery victim’s in-court
identification was inadmissible. Allen is not permitted “to announce a position or assert an error
and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel
and elaborate for him his arguments, and then search for authority either to sustain or reject his
position.” Bass, 317 Mich App at 276 (quotation marks and citation omitted). Rather, an
“appellant himself must first adequately prime the pump; only then does the appellate well begin



                                                  -17-
to flow.” Id. (quotation marks and citation omitted). Thus, Allen has abandoned this issue on
appeal, and we need not address it. Id. Nonetheless, to the extent that we have considered it, we
find that it lacks merit.

                                VII. PHOTOGRAPHS OF GUNS

       Lastly, Allen asserts the trial court abused its discretion by refusing to exclude photographs
of guns and photographs of him holding guns that were removed from his cell phone.7 Again, we
disagree.

                                  A. STANDARD OF REVIEW

        “When the issue is preserved, we review a trial court’s decision to admit evidence for an
abuse of discretion, but review de novo preliminary questions of law, such as whether a rule of
evidence precludes admissibility.” People v Chelmicki, 305 Mich App 58, 62; 850 NW2d 612
(2014). “An abuse of discretion occurs when the trial court chooses an outcome falling outside
the range of principled outcomes.” People v Buie, 491 Mich 294, 320; 817 NW2d 33 (2012).
“[W]hen such preliminary questions of law are at issue, it must be borne in mind that it is an abuse
of discretion to admit evidence that is inadmissible as a matter of law.” Henry, 315 Mich App at
143, quoting People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).

                                   B. LAW AND ANALYSIS

         Generally, “[a]ll relevant evidence is admissible . . . .” MRE 402. “ ‘Relevant evidence’
means evidence having 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. Even where evidence is considered to be relevant, the evidence “may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”
MRE 403. Notably, MRE 403 does not regulate evidence that is simply “prejudicial” because
“[a]ll relevant and material evidence is prejudicial.” People v Sharpe, 502 Mich 313, 333; 918
NW2d 504 (2018). Rather, “[i]t is only when the probative value is substantially outweighed by
the danger of unfair prejudice that evidence is excluded.” People v Mills, 450 Mich 61, 75; 537
NW2d 909 (1995), mod 450 Mich 1212 (1995).

        There is, therefore, a two-part test: “First, this Court must decide whether introduction of
[the] evidence at trial was unfairly prejudicial. Then, this Court must apply the balancing test and
weigh the probativeness or relevance of the evidence against the unfair prejudice.” People v
Cameron, 291 Mich App 599, 611; 806 NW2d 371 (2011) (quotation marks and citation omitted).
“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 Gipson, 287 Mich App 261, 263; 787 NW2d 126 (2010), quoting People v Blackston,
481 Mich 451, 462; 751 NW2d 408 (2008). Stated differently, the “major function [of MRE 403]


7
  Allen also argues that the admission of this evidence denied him a fair trial. However, because
Allen has fully abandoned the constitutional argument on appeal, we need not address the
argument.


                                                -18-
is limited to excluding matter of scant or cumulative probative force, dragged in by the heels for
the sake of its prejudicial effect . . . .” Mills, 450 Mich at 75 (quotation marks omitted). Such
concerns arise where “the tendency of the proposed evidence [is] to adversely affect the objecting
party’s position by injecting considerations extraneous to the merits of the lawsuit, e.g., the jury’s
bias, sympathy, anger, or shock.” Cameron, 291 Mich App at 611 (quotation marks and citations
omitted). Additional concerns include “the danger of confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” People v Watkins, 491 Mich 450, 489; 818 NW2d 296 (2012) (quotation marks and
citation omitted).

        “ ‘Photographic evidence is generally admissible as long as it is relevant, MRE 401, and
not unduly prejudicial, MRE 403.’ ” Brown, 326 Mich App at 192, quoting Gayheart, 285 Mich
App at 227. “Photographs are not excludable simply because a witness can orally testify about the
information contained in the photographs.” Mills, 450 Mich at 76. “Photographs that are merely
calculated to arouse the sympathies or prejudices of the jury are properly excluded, particularly if
they are not substantially necessary or instructive to show material facts or conditions.” Id. at 76-
77, quoting People v Eddington, 387 Mich 551, 562-563; 198 NW2d 297 (1972). “The
determination whether evidence should be excluded pursuant to MRE 403 is best left to the trial
court’s contemporaneous assessment.” Gipson, 287 Mich App at 261. “Evidence of a defendant’s
possession of a weapon of the kind used in the offense with which he is charged is routinely
determined by courts to be direct, relevant evidence of his commission of that offense.” Hall, 433
Mich at 580-581.

        Allen essentially argues that the trial court should have excluded all of the photographs of
guns but for two that showed a Glock model handgun in an open palm. We have reviewed all of
those photographs as presented to the jury and hold that Allen’s argument is without merit. We
must first analyze whether the photographs challenged by Allen were “unfairly prejudicial.”
Cameron, 291 Mich App at 611. We initially address the photographs of Allen holding guns.
There were 11 photographs admitted that showed a portion of Allen’s face along with him holding
a gun. For those photographs, there was testimony that the weapons were either .45-caliber
weapons or Glocks. There was expert testimony that the homicide victim was killed with a .45-
caliber bullet that was fired from a handgun capable of firing such a bullet, most likely a Glock or
Bersa brand gun. Consequently, those 11 photographs were direct evidence that Allen had access
to and, at some point, possessed guns that could have been used to kill the homicide victim. As
our Supreme Court has held, “[e]vidence of a defendant’s possession of a weapon of the kind used
in the offense with which he is charged is routinely determined by courts to be direct, relevant
evidence of his commission of that offense.” Hall, 433 Mich at 580-581. Considering the direct
and relevant nature of those 11 photographs, there is nothing in the record to suggest that they
were, in any way, “merely calculated to arouse the sympathies or prejudices of the jury,” which
would have rendered them unfairly prejudicial. Mills, 450 Mich at 76-77 (quotation marks and
citation omitted); Hall, 433 Mich at 580-581.

        Furthermore, considering that identity and Allen’s possession of the cell phone were
significant issues presented at trial, the different angles of Allen’s face in each photograph was
particularly relevant in this case. Thus, the number of photographs did not amount to the “needless
presentation of cumulative evidence,” which is often indicative of unfair prejudice. Watkins, 491
Mich at 489 (quotation marks omitted).


                                                -19-
         Next, Allen challenges the photographs that showed three guns on a pink pillowcase.
Initially, the prosecution intended to admit those photographs, but showing five different guns.
When the trial court indicated that it would exclude those photographs under MRE 403, the
prosecution offered to crop the photographs. In doing so, only three guns remained visible. The
cropped versions of the photographs were admitted at trial. Allen contends that evidence of those
three guns, which are not Glocks or Bersas, was unfairly prejudicial because they could not have
fired the bullet that killed the homicide victim. However, the firearms and tool-mark analysis
expert prepared a report that revealed that, while those two companies manufactured the brand of
gun that most likely fired the bullet that killed the homicide victim, “[n]o suspected firearm should
be overlooked.” Thus, the three guns in the photographs remained relevant, as those that could
potentially have been used to complete the commission of the crimes. Hall, 433 Mich at 580-581.

        While the photographs were prejudicial, as is most relevant evidence, there was no reason
to believe that the photographs were unfairly prejudicial. The crimes charged were first-degree
felony murder, armed robbery, conspiracy to commit armed robbery, AWIM, and felony-firearm.
The evidence of the use of a gun was necessary to prove some of those charges and relevant to
proving all of them. There was no indication on the record that the photographs of the guns were
“merely calculated to arouse the sympathies or prejudices of the jury,” which would have
suggested that they were unfairly prejudicial. Mills, 450 Mich at 76-77 (quotation marks and
citation omitted). Rather, because the crimes charged involved guns, the jurors would not have
been shocked or angered by evidence of guns, except to the extent that they may have believed
those guns were used in the armed robbery and murder. Cameron, 291 Mich App at 611.
Consequently, the photographs of the three guns on the pillowcase were not unfairly prejudicial,
and thus, this argument lacks merit. Id.

         Furthermore, even to the extent that there might have been some slight unfair prejudice,
there is nothing in the record to suggest that the probative value of the photographs was
substantially outweighed by the danger of unfair prejudice. Mills, 450 Mich at 75. As discussed,
proof of Allen’s access to and possession of guns was highly relevant for the crimes of which he
was charged. Moreover, evidence that Allen had photographs of guns on his cell phone, especially
those that may have fired the shot that killed the homicide victim, was highly probative of the
issues of Allen’s access to and possession of guns. That probative value was further enhanced by
proof that Allen deleted some of the photographs about two hours after the crimes were committed.
Therefore, in light of the significant probative value of the evidence, the trial court did not abuse
its discretion in determining that it was substantially outweighed by the danger of unfair prejudice.
Id. Thus, for both reasons, this argument is without merit.

       Affirmed.



                                                              /s/ Kathleen Jansen
                                                              /s/ Patrick M. Meter
                                                              /s/ Thomas C. Cameron




                                                -20-
