                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 21, 2017
              Plaintiff-Appellee,

v                                                                  No. 333313
                                                                   Wayne Circuit Court
DAMON ERWIN BROWN,                                                 LC No. 16-000497-01-FC

              Defendant-Appellant.



Before: BECKERING, P.J., and O’BRIEN and CAMERON, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions for two counts of armed robbery,
MCL 750.529, and one count of assault with intent to do great bodily harm (“AWIGBH”), MCL
750.84. He was sentenced to 15 to 30 years’ imprisonment for each armed robbery conviction
and 6 to 10 years’ imprisonment for the AWIGBH conviction. We affirm.

                                    I. BACKGROUND FACTS

        The robbery and assault occurred at a fast-food restaurant on West Eight Mile Road in
Detroit. At about 11:30 p.m., after the restaurant closed, three men wearing black masks and
hoods confronted employees Amdadur Rahman-Shaon (“Shaon”) and Awlad Hussain
(“Hussain”) behind the restaurant as they were taking out the garbage. One of the men, whom
both employees recognized as defendant, targeted Shaon and forced him back into the restaurant.
The other two men, one of whom brandished a gun and pointed it at Hussain, forced Hussain
back into the restaurant. Once inside, defendant threatened Shaon with a box cutter, demanded
Shaon give him the money in the register, punched him in the forehead, and sliced Shaon’s face
with the box cutter. Defendant then grabbed the money from the counter, where Shaon had been
counting it, and all three men ran out the back door.
        Both employees recognized defendant because he had been coming into the store daily
for approximately eight months, asking for food and “bothering” them. They had called the
police several times regarding defendant’s harassing behavior, and the manager had even taken a
picture of defendant. In fact, the manager provided the picture to Hussain, who then gave it to
the police when they arrived at the scene after the robbery. The employees also stated they
recognized defendant from their prior contacts with him, specifically his voice and his eyes, and
that they knew him as “Eric.” Several days later, the police showed both Shaon and Hussain a

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photographic array, and both employees identified defendant as the assailant with the box cutter.
They also identified defendant at trial.
                                   II. DUE PROCESS CLAIM

        Defendant first argues that his due process rights were violated when the trial court failed
to suppress Shaon’s and Hussain’s in-court identifications of defendant because the
identifications were tainted considering both witnesses saw the picture of defendant before
identifying him in a photographic array. We disagree.

        Defendant did not object to the in-court identifications of the two witnesses. The issue is,
therefore, unpreserved. People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001), citing
MRE 103(a)(1)1 (some citations omitted).2 We review claims that evidence should have been
suppressed, as well as the underlying constitutional issues, de novo. People v Henry (After
Remand), 305 Mich App 127, 160; 854 NW2d 114 (2014). Factual findings made by the trial
court are reviewed for clear error. Id. When such issues are unpreserved, we review them for
plain error affecting the defendant’s substantial rights. Id.

        “A photographic identification procedure violates a defendant’s right to due process
when it is so impermissibly suggestive that it creates a substantial likelihood of
misidentification.” People v Woolfolk, 304 Mich App 450, 457; 848 NW2d 169 (2014).
Whether a particular procedure violates due process is dependent on the totality of the
circumstances. Id. However, individual constitutional rights, both federal and state, were put
into place to prevent governmental excesses and infringements. Woodland v Michigan Citizens
Lobby, 423 Mich 188, 204-205; 378 NW2d 337 (1985). The concept of limiting the applicability
of guaranteed constitutional rights for individuals to governmental actors “is deeply rooted in
constitutional tradition and is consistent with the very nature of our constitutional democracy.”


1
    MRE 103(a)(1) provides:

                 (a) Effect of erroneous ruling. Error may not be predicated upon a ruling
         which admits or excludes evidence unless a substantial right of the party is
         affected, and
                 (1) Objection. In case the ruling is one admitting evidence, a timely
         objection or motion to strike appears of record, stating the specific ground of
         objection, if the specific ground was not apparent from the context.
2
  Citing People v McCray, 245 Mich App 631, 638; 630 NW2d 633 (2001), defendant argues
that his objection to the use of the individual photo at trial was sufficient to preserve his
objection to the in-court identification. Neither McCray nor any other case we have found
supports the proposition that objection to one piece of evidence preserves the issue of whether
another piece of evidence was properly admitted, even when both were offered to prove the same
issue—in this case, identification. Even different bases for objecting to the same evidence, if not
specifically stated at trial, are not preserved. See People v Douglas, 496 Mich 557, 574; 852
NW2d 587 (2014).


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Id. at 205. As our Supreme Court noted in 1985, the Declaration of Rights provisions of the
Michigan Constitution “have never been interpreted as extending to purely private conduct.” Id.
This has not changed. See Scalise v Boy Scouts of America, 265 Mich App 1, 20; 692 NW2d
858 (2005) (“[T]he Michigan Constitution, like the United States Constitution, only protects
individuals from discriminatory ‘state action.’ ”). See also Nat’l Pride at Work, Inc v Governor
of Michigan, 274 Mich App 147, 167; 732 NW2d 139 (2007) (stating “the provisions in article 1
of the Michigan Constitution contemplate limitations of government conduct”) (emphasis
added).

        The police conducted the identification procedure by showing each of the two witnesses a
photographic array a week after the robbery, but prior to taking defendant into custody. Both
witnesses identified defendant as their assailant. Defendant has no complaint about the manner
in which the identification was conducted. He objects only to the witnesses having seen an
individual picture of defendant before they identified defendant in the photographic array and in
court—a picture that a manager took and that Hussain gave to the police the night of the robbery.
Defendant admits that there was no state action involved but argues that it makes no difference
who showed the picture to the witnesses because the result was the same. Defendant fails to
provide legal support for this argument, and we are aware of none. Therefore, he has abandoned
this issue. People v Coy, 258 Mich App 1, 19-20; 669 NW2d 831 (2003). Regardless, because
there was no state action in connection with the individual picture shown to the witnesses,
defendant’s claim that his due process rights were violated is meritless.

                       III. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant next argues that he was denied his constitutional right to effective counsel
when the defense attorney failed to object to the in-court identifications provided by Shaon and
Hussain. We disagree.

        Because defendant did not move for a new trial or an evidentiary hearing, this issue is not
preserved. See People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). When a defendant
fails to develop a record on his ineffective assistance of counsel claim in the trial court, our
review is limited to the record as it exists. People v Snider, 239 Mich App 393, 423; 608 NW2d
502 (2000). 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 constitutional law de novo. Id.

       While a criminal defendant has a fundamental right to effective assistance of counsel, the
burden is on the defendant to prove that he did not receive effective assistance from his counsel.
Heft, 299 Mich App at 80. “[A] defendant must show that his counsel’s performance fell below
an objective standard of reasonableness and that counsel’s representation prejudiced him so as to
deprive him of a fair trial.” People v Garza, 246 Mich App 251, 255; 631 NW2d 764 (2001).

        There was no basis for an objection to the in-court identifications of Shaon and Hussain
because there was no state action involved in the witnesses having seen the individual picture of
defendant. “Failing to advance a meritless argument or raise a futile objection does not
constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich App 192, 201; 793


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NW2d 120 (2010). Therefore, defendant has failed to establish that he was denied the effective
assistance of counsel.

                                       IV. SENTENCING

        Defendant next argues that, in scoring Offense Variable (“OV”) 14, the trial court used
facts neither admitted by defendant nor found beyond a reasonable doubt by the jury, in violation
of the Sixth Amendment. Defendant further argues that the trial court improperly based his
sentence on the fact that he refused to admit guilt. Again, we disagree.

       The factual determinations made by a trial court for the purpose of scoring the sentencing
guidelines must be supported by a preponderance of the evidence and are reviewed for clear
error. People v Dickinson, ___ Mich App ___, ___; ___ NW2d ___ (2017) (Docket No.
332653); slip op at 9. Whether the facts found are sufficient to support the scoring decision
requires statutory interpretation and application and is, therefore, reviewed de novo. Id.
Challenges to a trial court’s sentencing guidelines calculation on the basis that facts were used
that were neither admitted by the defendant nor proven to a jury beyond a reasonable doubt
present a constitutional law question that is reviewed de novo. People v Lockridge, 498 Mich
358, 373-374; 870 NW2d 502 (2015); People v Stokes, 312 Mich App 181, 192; 877 NW2d 752
(2015). We also review de novo the issue of whether a sentencing court based a sentence on the
defendant’s statements of innocence after conviction. People v Wesley, 428 Mich 708; 712-713;
411 NW2d 159 (1987).

        Although the sentencing guidelines are advisory only, a trial court must still determine
each defendant’s minimum sentence range by scoring the variables. Dickinson, ___ Mich App at
___, slip op at 10, n 3, citing Lockridge, 498 Mich at 398. 3 MCL 777.22 requires that OV 14 be
scored for all felony offenses. Dickinson, ___ Mich App at ___, slip op at 10. MCL 777.44
governs how OV 14 is to be scored, and states, in relevant part:

               (1) Offense variable 14 is the offender’s role. Score offense variable 14
       by determining which of the following apply and by assigning the number of
       points attributable to the one that has the highest number of points:

               (a) The offender was a leader in a multiple offender situation ......10 points

               (b) The offender was not a leader in a multiple offender situation ..0 points


3
  In his brief, defendant concedes that “there may have been testimony during the Defendant’s
trial indicating that he was the leader,” but he contends that the trial court incorrectly scored 10
points under OV 14 because “nothing in the jury’s verdict specifically implied a finding, by the
jury, beyond a reasonable doubt, that Defendant was the leader of the three robbers.”
Defendant’s argument misconstrues Lockridge. Because the guidelines minimum sentence range
is now advisory only, the trial court is still required to determine the applicable guidelines range
and may rely on facts beyond those admitted by the defendant or found by the jury beyond a
reasonable doubt. Lockridge, 498 Mich at 364, 391-392.


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        Because the Legislature did not define the word “leader,” we have consulted dictionary
definitions and determined that “[t]o ‘lead’ is defined in relevant part as, in general, guiding,
preceding, showing the way, directing, or conducting.” Dickinson, ___ Mich App at ___; slip op
at 10, citing People v Rhodes (After Remand), 305 Mich App 85, 90; 849 NW2d 417 (2014).
This Court in Rhodes “concluded that, for purposes of an OV 14 analysis, a trial court should
consider whether the defendant acted first or gave directions, ‘or was otherwise a primary causal
or coordinating agent.’ ” Dickinson, ___ Mich App at ___; slip op at 10, quoting Rhodes, 305
Mich App at 90.

        “When calculating the sentencing guidelines scores, a trial court may consider all of the
evidence in the trial court record.” Dickinson, ___ Mich App at ___; slip op at 9. This includes,
but is not limited to, “the contents of a presentence investigation report, admissions made by a
defendant during a plea proceeding, or testimony taken at a preliminary examination or trial.”
People v Johnson, 298 Mich App 128, 131; 826 NW2d 170 (2012), quoting People v Ratkov
(After Remand), 201 Mich App 123, 125; 505 NW2d 886 (1993). In scoring OV 14, a trial court
must consider the “entire criminal transaction.” Dickinson, ___ Mich App at ___; slip op at 11,
citing MCL 777.44(2)(a). As noted, we review for clear error the trial court’s factual
determinations, and such facts must be supported by a preponderance of the evidence. Id. at ___;
slip op at 9.

         At the sentencing hearing in this matter, defendant argued that OV 14 should be scored at
0 points because the leader was the one who entered the store with a gun in his hand, not
defendant. The court ruled that defendant was a leader because the evidence established that he
slashed Shaon and actually escaped with the cash, whereas the other two participants did nothing
but prevent Hussain from interfering with defendant. In other words, defendant’s actions were
those of a primary coordinating agent. See Dickinson, ___ Mich App at ___; slip op at 10. The
trial court further inferred that defendant was the leader from testimony that defendant had been
in the store frequently during the previous year; therefore, he likely became familiar with the
activities conducted during closing, and informed or guided his accomplices accordingly. See id.
at ___; slip op at 10. A preponderance of the evidence supports the trial court’s finding that
defendant was a leader under the circumstances presented, and it correctly scored OV 14 at 10
points.

        Defendant is also incorrect in his contention that the trial court was improperly
influenced by his refusal to admit guilt. Factors on which a trial court’s sentencing decision may
be based include “(1) the potential for the reformation of the offender, (2) the protection of
society, (3) the discipline of the wrongdoer, and (4) the deterrence of others from committing
like offenses.” Wesley, 428 Mich at 712-713. “A sentencing court cannot base a sentence even
in part on a defendant’s refusal to admit guilt.” People v Payne, 285 Mich App 181, 193-194;
774 NW2d 714 (2009), quoting People v Dobek, 274 Mich App 58, 104; 732 NW2d 546 (2007).
In examining whether a trial court improperly considered the defendant’s refusal to admit guilt,
this Court looks to three factors: “(1) the defendant’s maintenance of innocence after conviction;
(2) the judge’s attempt to get the defendant to admit guilt; and (3) the appearance that had the
defendant affirmatively admitted guilt, his sentence would not have been so severe.” Payne, 285
Mich App at 194, quoting Wesley, 428 Mich at 713. If these three factors are indicated in the
record, a reviewing court may find that the sentence was improperly influenced by the
defendant’s refusal to admit guilt. Wesley, 428 Mich at 713. “If, however, the record shows that

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the court did no more than address the factor of remorsefulness as it bore upon defendant’s
rehabilitation, then the court’s reference to a defendant’s persistent claim of innocence will not
amount to error requiring reversal.” Id.

        In this case, defendant continued to maintain his innocence at sentencing. The trial court
responded by asking him whether he was familiar with AA, to which defendant responded in the
negative. The judge next told defendant that the first step toward rehabilitation is for an
alcoholic to acknowledge his or her alcoholism, then said, “You apparently don’t believe that.”
The judge’s comment was followed immediately by a statement of the sentence that the court
imposed. It is unreasonable to characterize this comment, as defendant does, as an attempt to
persuade defendant to admit guilt. The statement contains no language of persuasion. The trial
court did not pause to ask defendant if he wanted to reconsider admitting guilt. Nor is it
reasonable to infer from that statement, as defendant does, that the sentence would have been
lighter had defendant admitted guilt. There are no words in the statement that support such an
inference.

        Defendant’s presentence investigation report indicates that he had no history of
alcoholism. Therefore, it seems clear that the trial court’s remark was meant to be an analogy,
comparing defendant’s continued claim of innocence to an active alcoholic’s refusal to admit
that he or she has a drinking problem. It is fair to say that it was an indication of the judge’s
opinion that defendant would have a greater potential for rehabilitation if he acknowledged his
actions, or even that it was an expression of pessimism as to defendant’s chance of rehabilitation
based on his continued claim of innocence. This is an appropriate sentencing factor. See
Wesley, 428 Mich at 713. Additionally, nothing in the record indicates that the judge thought
defendant should be punished more harshly because he maintained his innocence. There is, in
fact, some indication to the contrary. If the trial court wished to punish defendant more harshly
for refusing to admit guilt, it seems unlikely that the court would have informed defendant that
the court would not oppose his participation in a special alternative incarceration unit because of
his youth. Because the trial court did not attempt to convince defendant to admit guilt, and
nothing created the appearance that sentencing would have been more lenient had defendant
done so, defendant is not entitled to resentencing on this basis.

       Affirmed.



                                                            /s/ Jane M. Beckering
                                                            /s/ Colleen A. O'Brien
                                                            /s/ Thomas C. Cameron




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