                             STATE OF MICHIGAN

                              COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED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

v                                                                No. 333785
                                                                 Wayne Circuit Court
ROMIER DALVON PETERS,                                            LC No. 15-007719-02-FC

       Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

       Plaintiff-Appellant,

v                                                                No. 336697
                                                                 Wayne Circuit Court
ROMIER DALVON PETERS,                                            LC No. 15-007719-02-FC

       Defendant-Appellee.


Before: SAAD, P.J., and SERVITTO and GADOLA, JJ.

PER CURIAM.

       This case arises out of defendant’s involvement in the armed robbery of Thomas Pates
that occurred around midnight on August 25, 2015, in Dearborn Heights, Michigan. In Docket
No. 333785, defendant appeals as of right his jury-trial convictions of armed robbery, MCL
750.529, and possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. Defendant was sentenced to 84 months’ to 20 years’ imprisonment for his armed
robbery conviction and two years’ imprisonment for his felony-firearm conviction. In Docket
No. 336697, the prosecution appeals by leave granted1 the trial court’s order granting
defendant’s motion for a new trial, which he filed while his claim of appeal in Docket No.
333785 was pending before this Court. For the reasons set forth in this opinion, we reverse the


1
 People v Peters, unpublished order of the Court of Appeals, entered February 6, 2017 (Docket
No. 336697).


                                              -1-
trial court’s order granting defendant a new trial in Docket No. 336697 and affirm defendant’s
convictions and sentences in Docket No. 333785.

                                    I. DOCKET NO. 336697

        Several months after filing his claim of appeal in this Court in Docket No. 333785,
defendant filed a motion for a new trial in the trial court, alleging that he received ineffective
assistance of counsel because defense counsel denied him the opportunity to testify on his own
behalf at trial. Defendant attached to his motion a handwritten affidavit in which he alleged that
he told defense counsel repeatedly before and during trial that he wanted to testify, but his
counsel responded by telling him “no” or “no, that’s not good.” Defendant argued that if the jury
had heard his “side of the story,” it would not have convicted him of the charged offenses.

        The prosecution argued in response that defendant’s affidavit did not meet the
requirements of MCR 2.119(B) because defendant failed to explain in his affidavit what his
testimony would have been at trial. Further, the prosecution argued that defendant failed to show
that he did not acquiesce in defense counsel’s trial strategy and even if he was able to overcome
the presumption that defense counsel employed sound trial strategy, defendant failed to show
that he was prejudiced because he also denied his involvement in the robbery during a police
interrogation, a recording of which was played for the jury during trial.

        Following a hearing, the trial court granted defendant’s motion for a new trial, offering
the following explanation:

              I reviewed the pleadings from both the defense and the prosecution and it
       does appear that there may be a conviction based on all of the evidence that was
       presented to the jury but I don’t know how fair that verdict is if the Defendant is
       not given an opportunity to decide whether he wants to testify or not.

               I know that in many cases where the Court is the trier of fact that after the
       prosecution presents its case that the convictions look pretty apparent. And then
       after the defense is given an opportunity to present a case and does present a case
       a different light is put on the entire evidence. So that’s the reason that I try in
       every case to give a Defendant notice of an opportunity to testify or not testify.
       And then I will know whether the defense wanted to testify or did not want to
       testify. In this case we don’t have an indication, and this is also a problem that
       results from the Court not giving the Defendant that opportunity. We have an
       issue of whether the Defendant wanted to testify but his lawyer convinced him
       that he could not or should not and I don’t feel comfortable with either due
       process or fairness in a situation like that.

               So I am going to grant the Defendant’s motion, give him a new trial.

        We review for an abuse of discretion a trial court’s ruling on a motion for a new trial.
People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008). An abuse of discretion occurs when
the trial court’s decision falls outside the range of principled outcomes. People v Terrell, 289
Mich App 553, 559; 797 NW2d 684 (2010). “A trial court necessarily abuses its discretion when
it makes an error of law.” People v Waterstone, 296 Mich App 121, 132; 818 NW2d 432 (2012).
                                               -2-
         A claim of ineffective assistance of counsel presents a mixed question of fact and
constitutional law. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). We review
a trial court’s findings of fact for clear error and review questions of law de novo. Id. A finding
of fact is clearly erroneous if we are definitely and firmly convinced that the trial court made a
mistake. People v Lopez, 305 Mich App 686, 693; 854 NW2d 205 (2014).

        A trial court may “order a new trial on any ground that would support appellate reversal
of the conviction or because it believes that the verdict has resulted in a miscarriage of justice.”
MCR 6.431(B). MCR 6.431(B) directs a trial court to state its reasons for granting or denying a
motion for a new trial either orally on the record or in a written ruling that is made part of the
record. Considering the record before us, the trial court did not conclude that defense counsel
provided ineffective assistance and did not conclude that the verdict resulted in a miscarriage of
justice. Rather, the trial court granted defendant’s motion for a new trial on the basis that it
failed to determine on the record whether defendant wanted to testify. A trial court has no duty,
however, to ascertain on the record whether a defendant intelligently and knowingly waived his
right to testify. People v Bell, 209 Mich App 273, 277; 530 NW2d 167 (1995). The trial court
therefore abused its discretion because it based its decision on an erroneous legal standard. See
Waterstone, 296 Mich App at 132.

        Moreover, even addressing the merits of defendant’s claim of ineffective assistance of
counsel underlying his motion, defendant was not entitled to a new trial. To establish a claim of
ineffective assistance of counsel, a defendant must show both that (1) counsel’s performance fell
below an objective standard of reasonableness under prevailing professional norms and (2) that
there is a reasonable probability that, absent counsel’s unprofessional error, the result of the
proceeding would have been different. People v Vaughn, 491 Mich 642, 669; 821 NW2d 288
(2012). We presume that counsel provided effective assistance, and the defendant bears a heavy
burden of proving otherwise. People v Eisen, 296 Mich App 326, 329; 820 NW2d 229 (2012).
A defendant’s burden includes the burden of establishing the factual predicate of his claim.
People v Putman, 309 Mich App 240, 248; 870 NW2d 593 (2015). We will not review counsel’s
performance with the benefit of hindsight, nor will we second-guess counsel on matters of trial
strategy. People v Unger, 278 Mich App 210, 242-243; 749 NW2d 272 (2008).

         A defendant’s decision whether to testify “is a strategic decision best left to an accused
and his counsel.” People v Martin, 150 Mich App 630, 640; 389 NW2d 713 (1986). Although
defense counsel must inform a defendant of the right to testify, the ultimate decision whether to
testify remains with the defendant. People v Bonilla-Machado, 489 Mich 412, 419; 803 NW2d
217 (2011). When defense counsel advises a defendant not to testify at trial, we presume that
counsel’s advice is a matter of trial strategy. People v Tommolino, 187 Mich App 14, 17; 466
NW2d 315 (1991). A defendant waives the right to testify by intentionally relinquishing the
right or by expressing satisfaction with defense counsel’s advice not to testify. People v Carter,
462 Mich 206, 215; 612 NW2d 144 (2000). Waiver may also be presumed if a defendant fails to




                                                -3-
inform the trial court of a desire to testify when there is disagreement with counsel over whether
the defendant should take the stand. United States v Webber, 208 F3d 545, 551 (CA 6, 2000).2

        Accepting as true the assertion in defendant’s affidavit that defense counsel repeatedly
advised him not to testify at trial, this was a matter of trial strategy and we will not substitute our
judgment for that of counsel regarding matters of trial strategy. See Unger, 278 Mich App at
242-243. Defendant’s ineffective assistance claim could also be deemed waived because he
failed to alert the trial court regarding any disagreement he had with defense counsel over his
desire to testify. See Webber, 208 F3d at 551. Finally, even assuming defense counsel’s
performance fell below an objective standard of reasonableness, defendant cannot demonstrate
prejudice because he offered no evidence below or on appeal setting forth what his testimony
would have been at trial. Defendant thus failed to provide a factual basis for his ineffective
assistance claim. See Putman, 309 Mich App at 248. In sum, the trial court abused its discretion
by granting defendant’s motion for a new trial on the basis that it failed to comply with a duty
that does not exist under Michigan law, and, addressing the merits of defendant’s ineffective
assistance claim, defendant was not entitled to a new trial.

                                     II. DOCKET NO. 333785

       Having concluded in Docket No. 336697 that the trial court abused its discretion by
granting defendant’s motion for a new trial, we must now address the issues raised by defendant
in Docket No. 333785 otherwise challenging his convictions and sentences.

                                   A. EVIDENTIARY ERROR

        Defendant first argues that the trial court abused its discretion by admitting evidence that
the vehicle and handgun used during the robbery were stolen because this evidence was
irrelevant. Defendant further argues that this evidence was unfairly prejudicial and deprived him
of his constitutional right to a fair trial. We disagree.

        We review for an abuse of discretion a trial court’s ruling on the admissibility of
evidence. People v Bynum, 496 Mich 610, 623; 852 NW2d 570 (2014). A trial court abuses its
discretion when its decision falls outside the range of reasonable outcomes or when the court
makes an error of law. People v Duncan, 494 Mich 713, 722-723; 835 NW2d 399 (2013).
“Preliminary questions of law, such as whether a rule of evidence or statute precludes the
admission of particular evidence, are reviewed de novo, and it is an abuse of discretion to admit
evidence that is inadmissible as a matter of law.” Bynum, 496 Mich at 623. A trial court’s
decision regarding a close evidentiary question does not constitute an abuse of discretion.
People v Coy, 258 Mich App 1, 13; 669 NW2d 831 (2003).

       MRE 401 defines relevant evidence as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or


2
 Although the decisions of lower federal courts are not binding on state courts, the decisions
may be persuasive. Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004).


                                                 -4-
less probable than it would be without the evidence.” “Evidence is admissible if it is helpful in
throwing light on any material point.” People v Powell, 303 Mich App 271, 277; 842 NW2d 538
(2013) (quotation marks and citation omitted). Evidence need not be directed at an element of a
crime or an applicable defense to be material, “but it must, at least, be in issue in the sense that it
is within the range of litigated matters in controversy.” Id. (quotation marks and citation
omitted). All relevant evidence is admissible at trial unless the evidence is otherwise prohibited
by the court rules or by the state or federal constitutions. MRE 402.

        Defendant also argues that the trial court should have excluded evidence of the stolen
nature of the vehicle and handgun because it was unfairly prejudicial. MRE 403 states that,
“[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice . . . .” Unfair prejudice refers to the tendency of evidence to
adversely affect an objecting party’s position by inserting considerations that are extraneous to
the merits of the lawsuit, such as a jury’s bias, anger, shock, or sympathy. People v Cameron,
291 Mich App 599, 611; 806 NW2d 371 (2011). “Evidence is unfairly prejudicial when there
exists a danger that marginally probative evidence will be given undue or preemptive weight by
the jury.” People v Crawford, 458 Mich 376, 398; 582 NW2d 785 (1998).

        In this case, defendant was charged with armed robbery, felony-firearm, and carrying a
concealed weapon (CCW). The CCW statute states that “[a] person shall not carry a pistol
concealed . . . in a vehicle operated or occupied by the person . . . without a license to carry the
pistol as provided by law and if licensed, shall not carry the pistol in a place or manner
inconsistent with any restrictions upon such license.” MCL 750.227(2) (emphasis added). An
issue at trial was thus whether defendant was carrying the handgun in a manner consistent with
the law. Evidence that the handgun was stolen would tend to show that the weapon was not
being carried in a legal manner. Therefore, this evidence was relevant because it fell within the
range of the litigated matters in controversy.

        Although evidence is relevant, it may nonetheless be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. MRE 403. Evidence that the
handgun was stolen was highly relevant to the issue of whether defendant had a lawful right to
carry the gun for purposes of the CCW statute. Although the evidence was certainly prejudicial
to defendant, the possibility of unfair prejudice—such as possible improper character
implications—did not, in our opinion, substantially outweigh the probative value of the evidence.
In any event, a trial court’s ruling on a close evidentiary matter does not constitute an abuse of
discretion. Coy, 258 Mich App at 13. Defendant is not entitled to relief on this basis.

        On the other hand, the stolen nature of the vehicle does not appear to have any
consequence to the determination of the action and therefore should have been excluded on the
basis that it was irrelevant.3 Although we agree that the trial court should have excluded this


3
  Because we conclude that the trial court should have excluded this evidence on relevancy
grounds, we need not address defendant’s argument regarding MRE 403 as it pertains to this
evidence because MRE 403 only applies to address circumstances in which evidence that is
otherwise admissible must be excluded due to the danger that the evidence is unfairly prejudicial.


                                                 -5-
evidence, we presume that the erroneous admission of evidence is harmless and that reversal is
unwarranted unless a defendant can demonstrate that, “after an examination of the entire
evidence, it shall affirmatively appear that it is more probable than not that the error was
outcome determinative.” People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999)
(quotation marks omitted). “An error is deemed to have been outcome determinative if it
undermined the reliability of the verdict.” People v Rodriguez, 463 Mich 466, 474; 620 NW2d
13 (2000) (quotation marks and citation omitted).

        In this case, significant independent evidence established defendant’s guilt for the
offenses of which he was convicted.4 In our opinion, defendant has not shown that it was more
probable than not that the erroneous admission of evidence that the vehicle was stolen affected
the outcome of the trial or undermined the reliability of the jury’s verdict. Defendant therefore
has not shown that he is entitled to a new trial on this basis.

                         B. LATE ENDORSEMENT OF WITNESSES

       Defendant next argues that the trial court erred and denied him a fair trial by allowing the
late endorsement of Kelly Tamayo and Dearborn Heights Police Detective Corey Smith. We
review for an abuse of discretion a trial court’s decision whether to allow the late endorsement of
witnesses. People v Callon, 256 Mich App 312, 325-326; 662 NW2d 501 (2003).

        Generally, the prosecution must inform defense counsel of all witnesses who might be
called to testify at trial, which include res gestae witnesses and investigating law enforcement
officers known to the prosecution. MCL 767.40a(1). To be timely, the prosecution must send
the defendant or defense counsel its witness list at least 30 days before trial. MCL 767.40a(3).
However, “[t]he prosecuting attorney may add or delete from the list of witnesses he or she
intends to call at trial at any time upon leave of the court and for good cause shown or by
stipulation of the parties.” MCL 767.40a(4). The delayed discovery of a witness not known to
the prosecution or law enforcement officers may constitute good cause. People v Burwick, 450
Mich 281, 289; 537 NW2d 813 (1995). “Mere negligence of the prosecutor is not the type of
egregious case for which the extreme sanction of precluding relevant evidence is reserved.”
Callon, 256 Mich App at 328. “Moreover, to establish that the trial court abused its discretion,
[a] defendant must demonstrate that the court’s ruling resulted in prejudice.” Id.




4
  Pates testified that a man, whom he identified at trial as defendant, emptied his pockets and
grabbed a lanyard from around his neck while a second man held him at gunpoint. Kelly
Tamayo testified that defendant returned to the vehicle they had been riding in with a lanyard
that he did not have before he exited the vehicle a few minutes earlier. The police found a
lanyard with Pates’s identification information in the back seat of the police squad car where
defendant was placed following his arrest. Pates also described his assailant as a man wearing a
white t-shirt, and Dearborn Heights Police Officer Shaun Pawlus testified that he pulled a man
wearing a white t-shirt, whom he identified at trial as defendant, from the vehicle that had fled
police pursuit.


                                                -6-
         Defendant’s trial was scheduled to begin on March 16, 2016, but the trial court adjourned
trial until the following day due to an issue involving the potential panel of jurors. On March 17,
2016, defense counsel moved to exclude Tamayo and Smith from testifying because the
prosecution failed to endorse either witness on its witness list. The prosecutor explained that he
had not endorsed Tamayo because he had difficulty contacting her and he had not endorsed
Smith due to an oversight when filling out the witness list. The prosecutor explained that he had
contacted defense counsel to inform him about the witnesses and his intention to call them at
trial. The trial court noted that defense counsel had actual notice of Tamayo’s and Smith’s
involvement in the case and therefore allowed the prosecution to call the witnesses at trial.

        Under the circumstances, we are not convinced that the trial court abused its discretion by
allowing the prosecution to add Tamayo and Smith as witnesses and to call them at trial.
Allowing the late endorsement of witnesses is not an abuse of discretion when the defense knew
about the witnesses, had an opportunity to cross-examine them, did not request a continuance,
and endured no unfair prejudice as a result of the late endorsement. See Callon, 256 Mich App
at 326. The record reveals that defendant’s trial was ultimately adjourned until April 18, 2016,
so defense counsel knew of the prosecution’s intent to call Tamayo and Smith at trial for
approximately three weeks before trial began. Defense counsel had the opportunity to prepare
and cross-examine the witnesses and did not request a continuance. Finally, the defense was not
unfairly prejudiced by the late endorsement of these witnesses because defense counsel has
known about Tamayo’s and Smith’s involvement from the outset of the case.

        Moreover, the mere negligence of the prosecution in failing to properly endorse a witness
is not a sufficient basis to exclude relevant testimony. Callon, 256 Mich App at 328. Tamayo’s
testimony was highly relevant to the case because she was with defendant on the night in
question and was a passenger in the vehicle during the armed robbery. Smith’s testimony was
also highly relevant because he was the officer in charge of the case and interrogated defendant
following his arrest. Therefore, the trial court did not abuse its discretion by allowing these
witnesses to testify at trial, and defendant was not deprived of a fair trial.

                 C. UNDULY SUGGESTIVE IN-COURT IDENTIFICATION

        Defendant argues that the trial court denied him a fair trial by allowing Pates to identify
defendant in court because the identification was unduly suggestive and lacked an independent
basis. Generally, we review for clear error a trial court’s decision to admit identification
evidence. People v Harris, 261 Mich App 44, 51; 680 NW2d 17 (2004). In this case, however,
defendant did not move in the trial court to suppress the identification and did not object to the
identification during trial so the issue is unpreserved. See People v Metamora Water Serv, Inc,
276 Mich App 376, 382; 741 NW2d 61 (2007). We therefore review this issue to determine
whether plain error occurred that affected defendant’s substantial rights. People v Carines, 460
Mich 750, 763; 597 NW2d 130 (1999). To avoid forfeiture under the plain error rule, the
defendant must demonstrate that an error occurred, the error was plain, and the plain error
affected substantial rights. People v Buie, 285 Mich App 401, 407; 775 NW2d 817 (2009).
“The third prong requires a showing of prejudice, which occurs when the error affected the
outcome of the lower court proceedings.” Putman, 309 Mich App at 243.



                                                -7-
        A defendant is denied due process if a procedure used to identify him as the perpetrator
of an offense is unnecessarily suggestive or conducive to irreparable misidentification. People v
Williams, 244 Mich App 533, 542; 624 NW2d 575 (2001). “Most eyewitness identifications
involve some element of suggestion. Indeed, all in-court identifications do.” Perry v New
Hampshire, 565 US 228, 244; 132 S Ct 716; 181 L Ed 2d 694 (2012). However, “[t]he fallibility
of eyewitness evidence does not, without the taint of improper state conduct, warrant a due
process rule requiring a trial court to screen such evidence for reliability before allowing the jury
to assess its creditworthiness.” Id. at 245. Courts consider the following factors to determine
whether an independent basis exists for the admission of an in-court identification:

       (1) prior relationship with or knowledge of the defendant; (2) opportunity to
       observe the offense, including length of time, lighting, and proximity to the
       criminal act; (3) length of time between the offense and the disputed
       identification; (4) accuracy of description compared to the defendant’s actual
       appearance; (5) previous proper identification or failure to identify the defendant;
       (6) any prelineup identification lineup of another person as the perpetrator; (7) the
       nature of the offense and the victim’s age, intelligence, and psychological state;
       and (8) any idiosyncratic or special features of the defendant. [People v Davis,
       241 Mich App 697, 702-703; 617 NW2d 381 (2000).]

Defendant argues that Pates’s in-court identification was unduly suggestive because Pates spoke
with another witness before testifying and, during the conversation, learned defendant’s name.
Defendant also argues that the in-court identification was unduly suggestive because defendant
was seated at defense counsel’s table indicating that he was “obviously the defendant in the
case.” Although every in-court identification involves some element of suggestion, defendant
has not shown that Pates’s in-court identification was tainted by improper state conduct, nor has
he shown that there was a significant likelihood that he was misidentified by Pates.5

        Even if we were to conclude that the circumstances surrounding Pates’s in-court
identification were unduly suggestive, his identification was still admissible because there was
an independent basis for the identification. Although Pates did not have a prior relationship with
or knowledge of defendant, he had ample opportunity to observe defendant during the robbery.
Pates testified that he saw defendant and his accomplices while they were in the vehicle and
while they were robbing him. Pates explained that the street was lit well enough to see each
suspect. During the robbery, defendant emptied Pates’s pockets and grabbed a lanyard from



5
  In People v Fuqua, 146 Mich App 133, 144; 379 NW2d 396 (1985), overruled in part on other
grounds by People v Heflin, 434 Mich 482, 498; 456 NW2d 10 (1990), this Court concluded that
an in-court identification was unduly suggestive when a witness was able to communicate with
another witness after the first witness had already identified the defendant for the first time in
court. Although Pates admitted in this case that he spoke with another witness before testifying,
there is no evidence that Pates spoke with the other witness about any of defendant’s identifying
features. Instead, Pates said he spoke with the other witness about defendant’s name, which he
also said he already knew because it was listed on the subpoena he received.


                                                -8-
around Pates’s neck while an accomplice held Pates at gunpoint. We can reasonably infer from
this evidence that defendant was in very close proximity to Pates during the robbery.

        Although Pates was unable to identify defendant during a pretrial live identification
lineup procedure, Pates described defendant as having a “[w]hite T-Shirt, shoulder length dreads,
about the same height but lighter complexion” as the other assailant who was holding the gun.
Nothing in the record indicates that Pates’s initial description of defendant was inaccurate. In
fact, Dearborn Heights Police Officer Shaun Pawlus testified that he pulled a man wearing a
white t-shirt out of the back seat of the vehicle after it crashed and that the man was later
identified as defendant. Tamayo also testified that, after the vehicle crashed, defendant was the
only individual who stayed in the vehicle with her. Considering these circumstances, defendant
has not shown that the trial court plainly erred by admitting Pates’s in-court identification, nor
has he shown that he was prejudiced by the alleged error. Accordingly, defendant was not
denied his right to a fair trial on this basis.

                                 D. PROSECUTORIAL ERROR

        Defendant next argues that he was denied a fair trial when the prosecutor improperly
vouched for Tamayo’s credibility during his closing argument. Specifically, defendant asserts
that the prosecutor erred by arguing during closing that “[Tamayo] is telling the truth in this
instance. She puts the gun in [defendant’s] hand. She says he was coming back with the lanyard
that he was eventually found with.” “Generally, a claim of prosecutorial misconduct is a
constitutional issue that is reviewed de novo, but a trial court’s factual findings are reviewed for
clear error.” People v Brown, 279 Mich App 116, 134; 755 NW2d 664 (2008). However,
defendant did not object to the alleged instance of prosecutorial error and did not request a
curative instruction from the trial court, so we review this unpreserved issue for plain error
affecting substantial rights. Id.

        The test of prosecutorial error is whether a defendant was denied a fair and impartial trial.
Id. at 134. The defendant bears the burden of establishing that such an error occurred and that
the error resulted in a miscarriage of justice. Id. When reviewing a claim of prosecutorial error,
we consider the alleged erroneous conduct on a case-by-case basis and examine the prosecutor’s
remarks in the context of the entire case. People v Seals, 285 Mich App 1, 22; 776 NW2d 314
(2009). A prosecutor may not vouch for the credibility of a witness by suggesting that he or she
has some special knowledge that the witness is testifying truthfully. People v Roscoe, 303 Mich
App 633, 649; 846 NW2d 402 (2014). However, “a prosecutor may comment on his own
witnesses’ credibility during closing argument, especially when there is conflicting evidence and
the question of the defendant’s guilt depends on which witnesses the jury believes.” People v
Thomas, 260 Mich App 450, 455; 678 NW2d 631 (2004). “An otherwise improper remark may
not rise to an error requiring reversal when the prosecutor is responding to the defense counsel’s
argument.” People v Watson, 245 Mich App 572, 593; 629 NW2d 411 (2001) (quotation marks,
citation, and brackets omitted).

        Reviewing the prosecutor’s challenged remarks in context, we are not persuaded that any
error occurred. During defense counsel’s closing argument, he asserted the following:



                                                -9-
               You saw [Tamayo] today or yesterday take the stand and say different
       things. First only two people got out of the car. Once we pressed her about it,
       well, actually, there [were] three people that got out of the car.

              Now, again, she told you that although she loves her boyfriend, she knew
       he was done. She knew that he had stolen property, meaning the car and the gun,
       she knew that he fled from police, she knew that after crashing he ran from police.
       There is no question about that. But she has a decision to make. Okay. The
       friend who I have known for a long time . . . or [defendant] who she kind of
       knows from Facebook but never hung out with. What did she do?

                                              ***

              [Tamayo], we know that she was arrested, she was involved, she wasn’t
       charged and now she comes here and just minimizes what she did.

During his rebuttal argument, the prosecutor then asserted the following in response:

              Now looking at [Tamayo], defense counsel wants you to believe that she
       is completely incredible. What motivation does she have to lie to you at this
       point? All of the other cases as you’ve heard, that she’s aware of, have been
       resolved. There is no benefit to her in coming forward and telling you all this
       information. She’s not getting a deal, no one else in this is getting some sort of a
       deal based on her testimony. She is coming into court to be able to explain to you
       what happened.

              She is telling the truth in this instance. She puts the gun in the
       Defendant’s hand. She says he was coming back with the lanyard that he was
       eventually found with. Ladies and gentlemen, it doesn’t make any sense as to
       why she would come in here and make this up at this point in the game. She has
       absolutely nothing to gain from that.

Viewed in context, the prosecutor’s remarks regarding the veracity of Tamayo’s testimony were
a direct response to defense counsel’s argument during closing, which suggested that Tamayo’s
testimony lacked trustworthiness. Although a prosecutor may not generally vouch for the
credibility of a witness, we are not convinced that the prosecutor’s remarks in this instance
amounted to plain error because he was responding to an argument set forth by defense counsel.

        And even assuming plain error occurred, defendant cannot establish that he was
prejudiced by the prosecutor’s remarks. “Jurors are presumed to follow their instructions, and
instructions are presumed to cure most errors.” People v Abraham, 256 Mich App 265, 279; 662
NW2d 836 (2003). The trial court instructed the jury that the lawyers’ remarks were not
evidence, and defendant has not presented any evidence that the jury did not accept and follow
this instruction. Therefore, defendant has not shown that any alleged error arising from the
prosecutor’s remarks affected his substantial rights or denied him a fair trial.




                                              -10-
                       E. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant also argues that defense counsel provided ineffective assistance by failing to
object to Pates’s unduly suggestive in-court identification and to the prosecutor’s remarks during
closing argument concerning Tamayo’s credibility. As already discussed, however, Pates’s in-
court identification was not unduly suggestive and was supported by an independent basis, and
the prosecutor’s remarks did not amount to prosecutorial error. Trial counsel cannot be deemed
ineffective for failing to raise a meritless objection at trial. People v Chelmicki, 305 Mich App
58, 69; 850 NW2d 612 (2014). Therefore, defendant has not established that he is entitled to a
new trial on the basis of ineffective assistance of counsel.

                              F. SENTENCING CHALLENGES

        Finally, defendant argues that he is entitled to resentencing because his sentence was
unreasonable and was based on numerous scoring errors. In particular, defendant argues that the
trial court erred, given the record, by assessing 15 points for offense variable (OV) 10
(exploitation of a vulnerable victim) and 10 points for OV 19 (interference with the
administration of justice). Defendant also argues that his sentence constitutes an unreasonable
departure sentence. We disagree.

                                    1. SCORING ERRORS

        We review for clear error a trial court’s factual findings used to score the sentencing
guidelines; such facts must be supported by a preponderance of the evidence. People v
McChester, 310 Mich App 354, 358; 873 NW2d 646 (2015). A factual finding is clearly
erroneous if we are definitely and firmly convinced that an error occurred. Id. “Whether the
facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the
application of the facts to the law, is a question of statutory interpretation, which an appellate
court reviews de novo.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).

        “When calculating the sentencing guidelines, a court may consider all record evidence,
including the contents of a PSIR, plea admissions, and testimony presented at a preliminary
examination.” McChester, 310 Mich App at 358. The trial court may rely on the record
evidence and reasonable inferences arising from that evidence to assess points for an offense
variable. People v Earl, 297 Mich App 104, 109; 822 NW2d 271 (2012). A defendant is entitled
to resentencing if the trial court clearly erred by finding that a preponderance of the evidence
supported assessing points under the OVs or otherwise erred by applying the facts to the OVs
and the scoring error altered the defendant’s minimum sentencing range. People v Biddles, 316
Mich App 148, 156; 896 NW2d 461 (2016).

                                            a. OV 10

        MCL 777.40 sets forth OV 10, which addresses exploitation of a vulnerable victim and
provides that the court may assess 15 points if “[p]redatory conduct was involved.” MCL
777.40(1)(a). The statute defines “predatory conduct” to mean “preoffense conduct directed at a
victim . . . for the primary purpose of victimization.” MCL 777.40(3)(a). “The timing and
location of an offense—waiting until a victim is alone and isolated—is evidence of predatory
conduct.” People v Ackah-Essien, 311 Mich App 13, 37; 874 NW2d 172 (2015). To assess
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points under OV 10, “only those forms of preoffense conduct that are commonly understood as
being predatory in nature, e.g., lying in wait and stalking, [should be considered] as opposed to
purely opportunistic criminal conduct or preoffense conduct involving nothing more than run-of-
the-mill planning to effect a crime or subsequent escape without detection.” People v Huston,
489 Mich 451, 462; 802 NW2d 261 (2011) (quotation marks and citation omitted). Points
should be assessed under OV 10 only if the victim had a readily apparent susceptibility to injury,
physical restraint, persuasion, or temptation. Cannon, 481 Mich at 158.

        Defendant argues that the trial court erred by assessing 15 points under OV 10 because
the record does not contain evidence that he engaged in “predatory conduct” or that Pates was
vulnerable and that defendant exploited his vulnerability. We disagree. The record reveals that
defendant and his accomplices approached Pates while they were in a vehicle with the headlights
off and while Pates was walking alone late at night. Pates testified that he began to feel uneasy
because he believed defendant and his accomplices were stalking him. Pates continued walking,
but within a short time period, defendant and an accomplice ran up behind Pates, forced him into
an alley behind a “closed down hamburger station,” and robbed him at gunpoint.

        Based on this evidence, it was reasonable for the trial court to infer that defendant and his
accomplices were lying in wait with the intention of targeting Pates and creating an opportunity
to victimize him. Defendant and his accomplices approached Pates as a group in a vehicle
without lights on while it was dark outside and while Pates was alone and isolated and thus
susceptible to injury and restraint. Defendant argues that he was not driving and had no control
over the actions of the driver, but Pates testified that, after the driver of the vehicle asked him for
a lighter, the driver conferred with the other occupants of the car, including defendant, and
shortly thereafter the driver and defendant robbed Pates. Sufficient evidence thus established
that defendant was involved in the culpable preoffense conduct and the trial court properly
assessed 15 points under OV 10.

                                              b. OV 19

        MCL 777.49 sets forth OV 19, which addresses interference with the administration of
justice and states that the trial court may assess 10 points if the offender “interfered with or
attempted to interfere with the administration of justice.” MCL 777.49(c). “[T]he plain and
ordinary meaning of ‘interfere with the administration of justice’ for purposes of OV 19 is to
oppose so as to hamper, hinder, or obstruct the act or process of administering judgment of
individuals or causes by judicial process.” People v Hershey, 303 Mich App 330, 343; 844
NW2d 127 (2013). “OV 19 is generally scored for conduct that constitutes an attempt to avoid
being caught and held accountable for the sentencing offense,” but a court may also consider an
offender’s conduct after the completion of the sentencing offense. People v Smith, 318 Mich
App 281, 286; 897 NW2d 743 (2016) (quotation marks and citation omitted).

       Defendant argues that there was insufficient evidence to support the assessment of 10
points under OV 19 because he did not evade arrest and he cooperated with the police.
However, defendant ignores the evidence presented at sentencing that showed he attempted to
prevent Tamayo from testifying at his trial. At sentencing, the prosecutor explained that Tamayo
turned over a screen shot of a text message she received from one of defendant’s acquaintances,
Shakur Gilliam, indicating that Tamayo should not come to court. The prosecutor explained that

                                                 -12-
he had also listened to several jail telephone calls between defendant and Gilliam, which
suggested Gilliam was attempting to prevent Tamayo from coming to court. Based on this
evidence, the trial court could reasonably conclude that defendant attempted to obstruct the
administration of justice because he attempted to prevent a key witness from testifying as to his
involvement in the crime. Therefore, the trial court properly assessed 10 points under OV 19.

                           2. REASONABLENESS OF SENTENCE

        Defendant next argues that he is entitled to resentencing because the trial court imposed
an unreasonable departure sentence. Based on the properly scored OVs, defendant’s
recommended minimum sentencing guidelines range was 42 to 70 months’ imprisonment. The
trial court, however, sentenced defendant to a minimum of 84 months’ imprisonment, an upward
departure of 14 months. We conclude that this departure sentence was reasonable under the
circumstances.

        In People v Lockridge, 498 Mich 358, 391-392; 870 NW2d 502 (2015), our Supreme
Court severed MCL 769.34(2) to the extent that it made the sentencing guidelines mandatory.
However, sentencing courts must still consult the applicable sentencing guidelines range and
take it into account when imposing a sentence on a defendant. Id. at 391. “A sentence that
departs from the applicable guidelines range will be reviewed by an appellate court for
reasonableness.” Id. at 392. In People v Steanhouse, ___ Mich ___, ___; ___ NW2d ___ (2017)
(Docket Nos.152671, 152849, 152871, 152872, 152873, 152946, 152947, and 152948); slip op
at 3, our Supreme Court held that “the proper inquiry when reviewing a sentence for
reasonableness is whether the trial court abused its discretion by violating the ‘principle of
proportionality’ set forth in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990), ‘which
requires sentences imposed by the trial court to be proportionate to the seriousness of the
circumstances surrounding the offense and the offender.’ ” In Milbourn, 435 Mich at 657, our
Supreme Court noted that “departures are appropriate where the guidelines do not adequately
account for important factors legitimately considered at sentencing . . . .” The Milbourn Court
also provided the following guidance for appellate courts reviewing a departure sentence:

       Where there is a departure from the sentencing guidelines, an appellate court’s
       first inquiry should be whether the case involves circumstances that are not
       adequately embodied within the variables used to score the guidelines. A
       departure from the recommended range in the absence of factors not adequately
       reflected in the guidelines should alert the appellate court to the possibility that
       the trial court has violated the principle of proportionality and thus abused its
       sentencing discretion. Even where some departure appears to be appropriate, the
       extent of the departure (rather than the fact of the departure itself) may embody a
       violation of the principle of proportionality. [Id. at 659-660.]

Other factors considered by Michigan courts under the Milbourn proportionality standard include
“(1) the seriousness of the offense; (2) factors that were inadequately considered by the
guidelines; and (3) factors not considered by the guidelines, such as . . . the defendant’s
misconduct while in custody, the defendant’s expressions of remorse, and the defendant’s
potential for rehabilitation.” People v Steanhouse, 313 Mich App 1, 46; 880 NW2d 297 (2015),
affirmed in relevant part, reversed in part ___ Mich ___ (2017) (citations omitted).

                                              -13-
        In this case, the trial court imposed the departure sentence after noting the seriousness of
the offense and the presence of several other factors that were not addressed by the sentencing
guidelines. The trial court explained that defendant participated in multiple instances of
misconduct while he was in custody for the instant offenses, which included stealing food from
another inmate, blatantly ignoring commands from prison personnel, using vulgar language
toward prison personnel, and engaging in multiple fights with other inmates. Although
defendant stated that he was remorseful of his actions, the trial judge was unconvinced and noted
that she had the opportunity to observe defendant’s behavior in her court room. The trial court
pointed out that the crime at issue in this case was a crime against a person, not property, and
that defendant had participated in 13 instances of prison misconduct within less than a year,
which the court described as unusual. Ultimately, the trial court imposed an extra month over
defendant’s minimum sentencing range for every instance of prison misconduct defendant had
incurred while he was in custody.

        In our opinion, the trial court did not abuse its discretion by imposing the departure
sentence that it did because the sentence was proportionate to the seriousness of the
circumstances surrounding the offense and the offender, particularly when considering
defendant’s multiple instances of misconduct while in custody. Accordingly, defendant is not
entitled to resentencing on the basis that his sentence was unreasonable.

                                      III. CONCLUSION
       We reverse the trial court’s order granting defendant’s motion for a new trial in Docket
No. 336697 and affirm defendant’s convictions and sentences in Docket No. 333785.

                                                             /s/ Henry William Saad
                                                             /s/ Deborah A. Servitto
                                                             /s/ Michael F. Gadola




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