            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    August 22, 2019
               Plaintiff-Appellee,

v                                                                   No. 342385
                                                                    Oakland Circuit Court
TERRANCE BERNARD PERRY, JR.,                                        LC No. 2017-263799-FH

               Defendant-Appellant.


Before: BECKERING, P.J., and SAWYER and CAMERON, JJ.

PER CURIAM.

        Defendant appeals by right his jury trial convictions of carrying a concealed weapon
(CCW), MCL 750.227, possession of under 25 grams of a controlled substance, MCL
333.7403(2)(a)(v), two counts of possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b, felon in possession of a firearm, MCL 750.224f, and resisting
or obstructing a police officer, MCL 750.81d(1). The trial court sentenced him as a third
habitual offender, MCL 769.13, to 34 months to 10 years for CCW, 2 to 8 years for possession, 2
years for felony-firearm, 34 months to 10 years for felon in possession, and 2 to 4 years for
resisting arrest. We affirm.

                                            I. FACTS

        On June 7, 2017, Oakland County Sheriff’s Deputy Brandon Devita was on duty in
Pontiac when he observed a blue Impala that appeared to be speeding. Additionally, the
windshield was shattered on the driver’s side, and the driver was not wearing a seatbelt. The
deputy activated his lights and followed the Impala as it made several turns, then pulled over to
the curb and stopped. The driver jumped out and ran, after first turning and looking directly
back at Deputy Devita. The deputy, who had a clear look at the driver’s face, testified that
defendant was the driver. Deputy Devita chased defendant north through a vacant lot and over a
couple of fences before losing sight of him. During the chase, defendant looked back a few more
times, giving the deputy additional opportunities to see his face. Other officers took over pursuit
after Deputy Devita informed them by radio of the relevant facts.




                                                -1-
        Returning to the scene of the traffic stop, Deputy Devita performed an inventory search
of the Impala. On the passenger seat, he found two plastic bags that appeared to contain heroin,
as well as a digital scale. He also found a fully-loaded handgun in the center console and a cell
phone sitting in a cup holder. He took pictures of these items, then removed them and secured
them in the trunk of his patrol car. The deputy then joined in the search with assistance from a
canine unit. For approximately 30 minutes, officers searched the area north of the Impala, the
direction in which defendant had run. Returning to his patrol car at the location of the traffic
stop, Deputy Devita was told by someone there that the suspect was walking south on
Henderson, perhaps on his way to the Happy’s Pizza on Huron. He was told that the suspect’s
name was Terrance and that the suspect was shirtless.

        About 15 minutes later, the deputy was dispatched to Happy’s Pizza, about two blocks
south of the patrol car’s location. There, he spoke with the manager, Brittany Crumb, and a
delivery driver, Roger Rimka. He learned that defendant formerly worked at Happy’s as a cook,
and he was given defendant’s full name. Crumb testified that defendant had entered the front
door at around 6:00 p.m., shirtless and scratched up. She gave him a Happy’s crew shirt, and he
put it on and left. Rimka testified that, at defendant’s request, he drove defendant to his next
delivery destination, North Hill Farms. Defendant then thanked him and left. After interviewing
Crumb and Rimka, Deputy Devita returned to his patrol car and pulled up the most recent picture
from the Michigan Secretary of State database for the name he had been given. He recognized
the picture as the person who had been driving the Impala and immediately informed dispatch so
that the other officers could be updated.

        Deputy Devita’s patrol car was equipped with in-car video, which showed the Impala
throughout the entire incident and during the chase. The prosecution played the video for the
jury. Additionally, the deputy testified that he had reviewed the video and compared the still
shot of defendant initially looking back at the patrol car to the Secretary of State photo of
defendant, and they matched. Detective Matthew Peschke, the assigned officer in charge of this
case, testified that he conducted an investigation regarding the cell phone that had been found in
the Impala’s cup holder. He stated that, after the data from the phone was downloaded pursuant
to a search warrant, he reviewed hundreds of images and some video from the phone. He
identified defendant as the subject of many “selfies” he found on the phone, three of which were
admitted into evidence. He further testified that he had compared these photos to the Secretary
of State photo and concluded it was the same individual. Detective Peschke also reviewed the
in-car video of the stop and took some still photos from it. He testified that he had compared
those still photos to the Secretary of State photo of defendant and concluded they were the same
person. Defendant did not testify. His theory of the case was that he had been mistakenly
identified as the driver of the Impala.

        After the first hour of deliberations, the jury requested an opportunity to again view the
in-car video and the still photo taken from it. The jury members found defendant guilty on all
counts about an hour after they viewed the video again. This appeal followed. Defendant filed a
motion to remand with this Court on the basis that the trial court had erred in allowing the two
officers to provide testimony identifying him from the video and photographic evidence and that
his counsel had been ineffective in failing to object. This Court denied the remand motion.



                                               -2-
                                    II. IDENTITY TESTIMONY

                                   A. STANDARD OF REVIEW

        Defendant first argues that the officers’ testimony identifying him as the person in the
video and photos was improper because neither witness was better positioned to make an
identification than was the jury. Because defense counsel did not object below, this issue was
not preserved for appeal. People v Knox, 469 Mich 502, 508; 674 NW2d 366 (2004).
“Unpreserved claims of evidentiary error are reviewed for plain error affecting the defendant's
substantial rights.” People v Benton, 294 Mich App 191, 201; 817 NW2d 599 (2011). Under the
plain error rule, a defendant may avoid forfeiture if he can establish that a plain (i.e., clear or
obvious) error was made, and that the error affected his substantial rights. People v Carines, 460
Mich 750, 763; 597 NW2d 130 (1999). An error is plain if the disputed decision is clearly
contradicted by existing caselaw. Id. at 770. The error affected the defendant’s substantial
rights if he or she was able to establish prejudice, “i.e., that the error affected the outcome of the
lower court proceedings.” Id. at 763. Even when a defendant meets this burden of proof,
reversal is not warranted unless the error resulted in an innocent person being convicted, or had a
serious effect on “ ‘the fairness, integrity, or public reputation of judicial proceedings . . . .’ ” Id.
at 763-764, quoting United States v Olano, 507 US 725, 736-737; 113 S Ct 1770; 123 L Ed 2d
508 (1993).

                                           B. ANALYSIS

        Relevant evidence is admissible except when a court rule, or the state or federal
constitution, provides otherwise. MRE 402; People v Yost, 278 Mich App 341, 355; 749 NW2d
753 (2008). MRE 701 governs the admission of lay opinion testimony. It provides:

                If the witness is not testifying as an expert, the witness’ testimony in the
        form of opinions or inferences is limited to those opinions or inferences which are
        (a) rationally based on the perception of the witness and (b) helpful to a clear
        understanding of the witness’ testimony or the determination of a fact in issue.

In Michigan, lay opinion testimony regarding video footage of suspects is admissible if (1) the
testimony is rationally based on the witness’s perception, (2) the testimony is “intended to
provide a clearer understanding” of “a fact at issue in the case,” and (3) the testimony does not
“invade the province of the jury.” People v Fomby, 300 Mich App 46, 50-52; 831 NW2d 887
(2013). It is well established in Michigan that it invades the province of the jury for a trial court
to allow lay opinion testimony regarding a fact to be determined “where a jury is as capable as
anyone else of reaching a conclusion.” People v Drossart, 99 Mich App 66, 80; 297 NW2d 863
(1980).

        Here, while the first two elements of Fomby were met, neither officer was in a better
position to make an identification from the video or the photographs than was the jury. We do
not agree with plaintiff’s argument that Deputy Devita was in a better position to correctly
identify the person in the video because he saw defendant’s face in person several times during
the traffic stop and chase. This allowed the deputy to provide compelling direct testamentary
evidence of the perpetrator’s identity. It did not, however, provide him with any advantage over

                                                  -3-
the jury in comparing the video or the selfies to the Secretary of State photo or to defendant’s
person as he sat in the courtroom. We also disagree with plaintiff’s argument that Detective
Peschke was in a better position than the jury because it was he who created the still pictures that
were admitted into evidence from the in-car video. Unlike in Fomby, the video in this case was
short and clear, and shows only one individual. The jury was able to watch it in its entirely more
than once. Because it invaded the province of the jury, the parts of the officers’ testimony in
which they opined that defendant was the person in the video or photos should have been
precluded. Its admission was clear error because it contradicts established caselaw interpreting
MRE 701. See Carines, 460 Mich at 763.

        Defendant is not entitled to relief based on this error, however, because he failed to show
that the officers’ testimony affected his substantial rights. Carines, 460 Mich at 763. The
challenged testimony was not the only evidence of defendant’s identity. Identity may be
established by direct or circumstantial evidence, and the testimony of the complaining witness,
even standing alone, can be sufficient to identify the perpetrator. People v Kern, 6 Mich App
406, 409-410; 149 NW2d 216 (1967). Deputy Devita provided direct evidence of defendant’s
identity because he saw defendant’s face when defendant looked back at him as he left the car
and began to run and then several more times as he chased defendant. Defendant argued that
Deputy Devita’s testimony would be given undue weight by the jury because he was a law
enforcement officer, but the jury was instructed to give the same weight to a police officer’s
testimony as it would to anyone else’s testimony. “Jurors are presumed to have followed their
instructions.” Benton, 294 Mich App Mich at 202.

        Additionally, the testimony from the Happy’s Pizza employees provided circumstantial
evidence that it was defendant who ran across the vacant lot and jumped several fences in an
attempt to elude Deputy Devita. This testimony established that defendant appeared, shirtless
and scratched up, two blocks away from the location of the traffic stop around the time of the
crime, and he was in need of a ride. The jury also had the opportunity to see defendant in court
and view the in-car video and the selfies from the phone found in the car with the drugs and gun.
Also, the jury was instructed that it was the ultimate factfinder, and that it could believe or
disbelieve all or part of any witness’s testimony, including that of police officers. As plaintiff
argued, the record supports the conclusion that the jury did follow its instructions in this case. If
the members were merely accepting the officers’ word for the identity element, they would not
have taken the time and trouble to request the judge’s permission to view the video and photos
again during their deliberations.

        Upon a review of the entire record, it is apparent that a reasonable jury could have found
defendant guilty beyond a reasonable doubt because the fact of his identity was established by
other competent evidence. People v Harris, 110 Mich App 636, 651; 313 NW2d 354 (1981)
(holding error “was harmless beyond a reasonable doubt since the same facts were shown by
other competent testimony”). Cf. People v Hubbard, 209 Mich App 234, 243; 530 NW2d 130
(1995) (finding it was reasonably probable that improperly admitted evidence affected the
verdict where there was no direct evidence and the circumstantial evidence was not
overwhelming). Because there was direct and circumstantial evidence of defendant’s identity in
this case, it is unlikely that the jury would have reached a different result even if the disputed
testimony had been precluded. Defendant has failed to establish that this testimony was


                                                -4-
outcome-determinative and has therefore failed to establish that his substantial rights were
affected by the admission of this testimony. Carines, 460 Mich at 763.

                                III. INEFFECTIVE ASSISTANCE

                                  A. STANDARD OF REVIEW

        Defendant next argues that his attorney was ineffective because he failed to object to the
testimony of the two officers identifying him as the person in the video and still pictures.
Ineffective assistance of counsel claims present mixed questions of law and fact. People v
Douglas, 496 Mich 557, 566; 852 NW2d 587 (2014). We review factual questions for clear
error and review questions of law de novo. Id. This claim is not preserved because defendant
did not file a motion for a new trial or for a Ginther1 hearing in the trial court. Because
defendant failed to establish that he was entitled to a remand on this issue, we denied his remand
motion, and our review is limited to mistakes that are apparent on the record. People v Payne,
285 Mich App 181, 188; 744 NW2d 714 (2009).

                                          B. ANALYSIS

        In order to prevail on an ineffective assistance of counsel claim in Michigan, a defendant
must show that “(1) the performance of counsel was below an objective standard of
reasonableness under prevailing professional norms and (2) a reasonable probability exists that,
in the absence of counsel’s unprofessional errors, the outcome of the proceedings would have
been different.” People v Plummer, 229 Mich App 293, 307; 581 NW2d 753 (1998). The
defendant bears the heavy burden of rebutting the presumption that his counsel’s assistance was
effective. Id. at 308.

        Defendant correctly argues that the disputed testimony was admitted erroneously, but he
must nonetheless overcome the strong presumption that the challenged action “might be
considered sound trial strategy” under the circumstances of the case. People v LaVearn, 448
Mich 207, 216; 528 NW2d 721 (1995). While the trial strategy presumption is a strong one,
“[t]he strategy . . . in fact must be sound, and counsel’s decisions as to it objectively reasonable.”
Douglas, 496 Mich at 566.

         Plaintiff posits that defense counsel may have chosen not to object to the erroneous
admission of this testimony to avoid drawing attention to it, choosing instead to attack the
reliability of the identification testimony on cross-examination. Assuming this to be true, we
cannot conclude that this was sound trial strategy. Identity was the only fact at issue in this case,
and defendant had nothing with which to disprove plaintiff’s direct and circumstantial evidence
that it was he who was driving the Impala that day. To allow the officers to identify defendant as
the person in the video and photos when it was inadmissible and identity was the only issue in
dispute would not have been a reasonable decision. This is especially true when counsel had
nothing substantial with which to discredit either the officers’ integrity or their identification of


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                 -5-
defendant. In this case, drawing the jury’s attention to the fact that the officers were invading
their province as factfinders would not likely have hurt defendant, and may have even been
helpful. We conclude that defendant has established the first element of his ineffective
assistance claim; that his counsel’s action fell below an objective standard of reasonableness
under prevailing professional norms. Plummer, 229 Mich App at 307.

        However, defendant failed to establish the existence of a reasonable probability that, in
the absence of counsel’s unprofessional errors, the outcome of the proceedings would have been
different.” Id. Defendant’s only argument is that he was prejudiced because the testimony
regarded the only fact at issue and the jury likely believed the police officers because they were
police officers. As discussed above, however, there is no reasonable probability that the officers’
testimony changed the outcome of this trial. Again, the officers’ testimony that it was defendant
whose image appeared on the video and selfies was not the only evidence of defendant’s identity,
the jury was properly instructed, and there is reason to believe that the jury followed its
instructions. Based on the direct and circumstantial evidence of defendant’s identity in this case,
it is unlikely that the jury would have reached a different result even if the disputed testimony
had been precluded. Because he was unable to establish that the error prejudiced him, defendant
has failed to establish his claim that he did not receive his constitutional right to the effective
assistance of counsel

                              IV. RIGHT TO CONFRONTATION

                                  A. STANDARD OF REVIEW

       Defendant argues next that Detective Devita’s testimony regarding the information he
received by anonymous tip was hearsay and violated his constitutional right to confront the
witnesses against him because the anonymous statement was testimonial in nature. Defendant
preserved this claim when he made a motion in limine before trial began, asking that this
testimony be precluded as a violation of the Confrontation Clause. People v Putman, 309 Mich
App 240, 245-246; 870 NW2d 593 (2015). We review preserved questions of constitutional law
de novo. Douglas, 496 Mich at 566. The beneficiary of any error in this regard (here, plaintiff)
must establish beyond a reasonable doubt that the error was harmless. Carines, 460 Mich at 774.

                                          B. ANALYSIS

         “ ‘Hearsay’ is a statement, other than the one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).
An out-of-court statement is not hearsay if it is presented to show its effect on a police officer’s
conduct of a criminal investigation, because it is not offered for the truth of the statement itself.
People v Knolton, 86 Mich App 424, 429; 272 NW2d 669 (1978). In People v Garcia, 31 Mich
App 447; 187 NW2d 711 (1971), a police officer testified that he had received a radio
communication informing him that windows were being broken at a fire station. We held that
the statement was not hearsay because it was offered to show why the officers went to the fire
station at that time, not as evidence that the defendant broke windows. Id. at 455. Here, the
anonymous person’s statement to Deputy Devita—that he saw a man he knew as Terrance,
shirtless, walking south on Henderson toward Happy’s Pizza—was comparable. It was offered
to explain why the police changed the direction of their search and went south on Henderson

                                                -6-
Street to Happy’s Pizza, where they learned that defendant had arrived there shirtless and
scratched, learned his full name, and were able to pull a picture of him, which allowed them to
determine that defendant was the man they should arrest. As in Garcia, this was not hearsay
because it was offered to show how and why the search developed and proceeded, not to
establish identity. Knolton, 86 Mich App at 429.

         “The Confrontation Clause of the Sixth Amendment, made applicable to the States
through the Fourteenth Amendment, provides: ‘In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him.’ ” Idaho v Wright, 497 US
805, 813; 110 S Ct 3139; 111 L Ed 2d 638 (1990). Michigan’s constitution likewise states that
“[i]n every criminal prosecution, the accused shall have the right . . . to be confronted with the
witnesses against him or her[.]” People v Sardy, 313 Mich App 679, 691; 884 NW2d 808
(2015), quoting Const 1963, art 1, § 20.2 The Confrontation Clause, therefore, “bars ‘admission
of testimonial statements of a witness who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity for cross-examination.’ ” Davis v
Washington, 547 US 813, 821; 126 S Ct 2266; 165 L Ed 2d 224 (2006), quoting Crawford v
Washington, 541 US 36, 68; 124 S Ct 1354; 158 L Ed 2d 177 (2004). See also Sardy, 313 Mich
App at 691-692.

        “The specific protections the Confrontation Clause provides apply ‘only to statements
used as substantive evidence.’ ” People v Nunley, 491 Mich 686, 697; 821 NW2d 642 (2012),
quoting People v Fackelman, 489 Mich 515, 528; 802 NW2d 552 (2011). “The Confrontation
Clause does not [ ] bar the use of out-of-court testimonial statements for purposes other than
establishing the truth of the matter asserted.” Putman, 309 Mich App at 246 (The
“Confrontation Clause does not prevent the use of out-of-court testimonial statements to show
why a police officer acted as he did.”). Such statements are admissible and Confrontation Clause
rights are not implicated, whether the statement is testimonial or nontestimonial in nature.
Putman, 309 Mich App at 246. Because the disputed testimony was not offered substantively,
but to explain the police investigation, defendant had no constitutional right to confront the
person who made those statements to Deputy Devita.

       We note that this testimony would not have violated defendant’s right to confront
witnesses against him even if it were offered substantively because it was not testimonial in
nature. “Statements are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency.” Davis, 547 US at 822. Statements are
testimonial, on the other hand, “when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal prosecution.” Id. Here, the anonymous
informant aided the police as they attempted to apprehend a fleeing suspect whose car contained
both heroin and a loaded weapon. The informant provided no information regarding any past


2
  The right of confrontation is analyzed the same under Michigan law as under federal law.
Sardy, 313 Mich App at 692.


                                               -7-
crime, only about the present appearance and whereabouts of the suspect, along with his belief
about where the suspect was likely headed. As Davis instructs, testimonial statements are
analogous to courtroom testimony, and “no ‘witness’ goes to court to proclaim an emergency
and seek help.” Id. at 828. Likewise, no “witness” goes to court to give the police a tip that
might help them catch a fleeing felon. The statements were nontestimonial and would not have
violated defendant’s right to confrontation even if they had been offered substantively.

        Further, even assuming the statements were offered substantively and violated
defendant’s confrontation rights, defendant would not be entitled to relief because plaintiff has
established beyond a reasonable doubt that the error was harmless. Carines, 460 Mich at 774.
As discussed above, a review of the entire record shows that the jury could reasonably have
found defendant guilty beyond a reasonable doubt without this testimony because the fact of
defendant’s identity was established by other competent evidence.

                            V. ASSESSMENT OF COURT COSTS

        Finally, defendant argues that the assessment of court costs against him was an
unconstitutional tax. This argument was rejected in People v Cameron, 319 Mich App 215; 900
NW2d 658 (2017), where we held that any court cost imposed under MCL 769.1k is actually a
tax but concluded that the tax was constitutional. Id. at 218, 236.

       Affirmed.



                                                           /s/ Jane M. Beckering
                                                           /s/ David H. Sawyer
                                                           /s/ Thomas C. Cameron




                                               -8-
