                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  February 23, 2016
              Plaintiff-Appellee,

v                                                                 No. 323944
                                                                  Genesee Circuit Court
CAVASSEAIRE TIDELL DYKES,                                         LC No. 13-033363-FH

              Defendant-Appellant.


Before: SERVITTO, P.J., and SAAD and O’BRIEN, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of first-degree home invasion,
MCL 750.110a(2); possession of a firearm by a felon, MCL 750.224f; felonious assault, MCL
750.82; possession of a firearm during the commission of a felony (felony firearm), MCL
750.227b; unlawful imprisonment, MCL 750.349b; and domestic violence, MCL 750.81(2). The
trial court sentenced him, as a second habitual offender, MCL 769.10, to concurrent prison terms
of 120 months to 30 years for first-degree home invasion; 30 months to 7½ years for felon in
possession; 28 months to 6 years for felonious assault; 107 months to 22½ years for unlawful
imprisonment; and 93 days for domestic violence, with all sentences to be served consecutively
to a two-year term for felony firearm. We affirm.

                                          I. FACTS

         The complainant and defendant began dating in 2011. According to the complainant, she
ended the relationship at some point toward the end of May 2013 after several incidents in which
defendant had become physically violent toward her. On June 1, 2013, she was home alone
when she heard defendant yelling and knocking on the back door of her house. The complainant
testified that he sounded angry, so she yelled through the door that he needed to calm down and
leave, and that she would talk to him later. Instead, defendant broke a window frame near her
back door and entered her house. She ran out the front door. Defendant chased her, grabbed her
by the hair, and dragged her back into the house, where he hit her with a gun, and kicked and
punched her. He also held her at gunpoint and told her that the only way she would leave the
house was in a “body bag.”

       Two responding police officers testified that as they approached the house, they could
hear two people yelling; however, when they knocked on the door, the voices stopped. After
they knocked for several minutes, they announced that they would kick the door in, and the
                                              -1-
complainant then came to the door with scratches, marks and bruises on her face and body. The
officers testified that she was initially evasive in response to their questions as to the
whereabouts of the person who had assaulted her, but she eventually told them that defendant
was hiding in a bedroom underneath a bed. She also told them that defendant had hidden the gun
between her mattress and box spring. The officers then located defendant and the gun in the
designated locations.

                            II. PROSECUTORIAL MISCONDUCT

        Defendant first argues that the prosecutor engaged in instances of misconduct by eliciting
irrelevant and unfairly prejudicial similar acts evidence from the complainant. We disagree.

        The complainant explained that when she ended their relationship, she told defendant she
was going to have a tattoo of his name covered with a different tattoo. She testified that when he
saw her at a tattoo shop on the night before the instant offenses, he assaulted her and that her
uncle, the owner of the shop, had to threaten defendant with a gun to end the incident. When the
prosecutor questioned the complainant about this incident, the following exchange occurred:

               Q. Was it your understanding [that defendant] didn’t want you to [have
       the tattoo covered]?

              A. Yeah but we had—we had got into a fight previous to this and he had
       broke a flat screen TV over my head and stomped on me causing me to lose a
       baby I was pregnant for and I had to tell everybody I had an abortion. And I told
       him I was done, like I didn’t want to be with him no more, and I told him I was
       covering up his name.

               Q. Why did you have to tell everybody you got an abortion?

               A. Cause he didn’t want people to know that he—I had to tell everybody
       that I had got sick from diabetes because I’m diabetic, . . . and that I was in the
       hospital because he didn’t want people to know that he had caused me to lose the
       baby.

The complainant also testified that when she and defendant had lived together at a different
residence a few months before the charged offenses, he had “duct taped” her and shot at her
twice.

       Defendant argues that this testimony was other acts evidence that was inadmissible under
MRE 404(b)(1), and that it was improperly admitted as evidence of his propensity to commit acts
of domestic violence. However, prior acts of domestic violence are admissible under MCL
768.27b(1), which provides that “in a criminal action in which the defendant is accused of an
offense involving domestic violence, evidence of the defendant’s commission of other acts of
domestic violence is admissible for any purpose for which it is relevant, if it is not otherwise




                                               -2-
excluded under Michigan rule of evidence 403[1].” Our Supreme Court has held that although
MCL 768.27b irreconcilably conflicts with MRE 404(b), the statute prevails because it does not
“impermissibly infringe on this Court’s authority regarding rules of practice and procedure under
Const 1963, art 6, § 5.” People v Watkins, 491 Mich 450, 455-456; 818 NW2d 296 (2012).2 To
the extent these other acts of domestic violence would have been inadmissible under MRE
404(b)(1), they were nonetheless admissible under MCL 768.27b unless barred by MRE 403;
“evidence admissible under MCL 768.27a remains subject to MRE 403.” Watkins, supra, at 456.

        Defendant also argues that this evidence was inadmissible under MRE 403. We do not
agree that the evidence was more prejudicial than probative. Evidence of other acts of domestic
violence is admissible under 768.27b for any purpose, subject to MRE 403, including to prove a
defendant’s propensity to commit the crime. MCL 768.27b(1). Thus, defendant’s argument that
the evidence was inadmissible because it allowed the jury to infer that he had a “bad character”
fails. Moreover, because, as discussed below, other evidence was sufficient to support
defendant’s convictions for the charged offenses, we conclude that any prejudicial effect of the
complainant’s testimony regarding defendant’s alleged other acts did not adversely affect the
fairness or integrity of the proceedings. People v Thomas, 260 Mich App 450, 454; 678 NW2d
631 (2004).

        Defendant argues next that the prosecutor committed misconduct when she argued that he
was in possession of the handgun found during the police search of the complainant’s house.
During closing argument, the prosecutor stated, “there’s no question [defendant] was possessing
this weapon. And then where was the weapon when he was arrested? It was right next to him
underneath the mattress of the bed he was hiding underneath.” The prosecutor further argued
that defendant had possession of the gun because “[t]he police officers saw it in his possession,”
and that one of the officers had testified that “when they pulled him out from . . . under the bed, a
couple bullets came rolling out with him. [Defendant] had the gun.” Defendant claims that the
testimony presented at trial did not support the prosecutor’s statements. However, one of the
police officers who searched the complainant’s house testified that when they pulled defendant
from underneath the bed some bullets that were on the floor “kind of rolled out” along with him.
The officers also testified that the weapon was found in the bed underneath which defendant was
hiding. Thus, defendant’s assertion that the prosecutor’s comments were not based on the
evidence is not accurate. In addition, the prosecutor’s statement that defendant’s proximity to
the weapon constituted possession is supported by People v Hill, 433 Mich 464, 470-471; 446


1
   MRE 403 provides that relevant “evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.”

2
  Watkins analyzed the effect of MCL 768.27a on MRE 404(b). Watkins, supra, at 455-456. In
People v Mack, 493 Mich 1, 3; 825 NW2d 541 (2012), the Court held that its decision resolving
the conflict between the court rule and the statute in Watkins fully controlled in Mack as to MCL
768.27b.


                                                -3-
NW2d 140 (1989), where our Supreme Court held that “a defendant has constructive possession
of a firearm if the location of the weapon is known and it is reasonably accessible to the
defendant. Physical possession is not necessary as long as the defendant has constructive
possession.” The evidence demonstrated that defendant had constructive possession of the
firearm found in the complainant’s home pursuant to Hill. Thus, the prosecutor’s comments
were properly based on the evidence, and did not constitute misconduct.

        Lastly, defendant asserts that the prosecutor committed misconduct by failing to inform
the jury that the complainant had “prior and pending criminal offenses of dishonesty” and had
“previously made false accusations of abuse after fights with the father of her child.” However,
even if it could be said that the prosecutor had a duty to present such evidence, defendant does
not provide any evidence of the alleged convictions or the alleged false accusations. Thus, there
is no factual predicate for this argument.

                               III. INEFFECTIVE ASSISTANCE3

         Defendant next maintains that his counsel provided ineffective assistance. The accused
has the right under the federal and state Constitutions to the effective assistance of counsel. US
Const, Am VI; Const 1963, art 1, § 20; Strickland v Washington, 466 US 668; 104 S Ct 2052; 80
L Ed 2d 674 (1984). A defendant bears a heavy burden to show that counsel made errors so
serious that he was not performing as the counsel guaranteed by the Sixth Amendment, and the
defendant must overcome a strong presumption that counsel’s performance constituted sound
trial strategy. People v McGraw, 484 Mich 120, 142; 771 NW2d 655 (2009), citing Strickland,
supra, at 668. “Moreover, the defendant must establish prejudice, i.e., a reasonable probability
that but for counsel’s error, the result of the proceeding would have been different.” Id.

        Defendant first claims that trial counsel was ineffective for failing to call six “res gestae”
witnesses who would have testified that he and the complainant lived together such that he could
not have committed a home invasion at her residence. We note that, although defendant refers to
the witnesses as “res gestae” witnesses, there is no evidence that the individuals identified in his
Standard 4 brief were present at the scene of the incident. Defendant also does not indicate that
he informed trial counsel about the existence of these witnesses. Counsel could not be expected
to call witnesses whose existence was unknown to him. Moreover, even if counsel was aware of
these witnesses, he may have decided it was not in the interest of the defense to call them.
“Decisions regarding what evidence to present and whether to call or question witnesses are
presumed to be matters of trial strategy, and this Court will not substitute its judgment for that of
counsel regarding matters of trial strategy.” People v Davis, 250 Mich App 357, 368; 649 NW2d
94 (2002) (citations omitted). This Court has held that “the failure to call witnesses only
constitutes ineffective assistance of counsel if it deprives the defendant of a substantial defense.”
People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004) (citation omitted). The record
indicates that defense counsel sought to show that defendant and the complainant were still


3
  Defendant previously brought a motion to remand for a hearing on the issue of ineffective
assistance of counsel, which we denied. People v Cavasseaire Tidell Dykes, unpublished order
of the Court of Appeals, entered June 5, 2015 (Docket No. 323944).


                                                 -4-
involved in a romantic relationship when the offenses occurred, and that defendant was welcome
to visit her home. This theory achieved much the same purpose—i.e., it sought to establish that
defendant did not commit home invasion by entering the complainant’s home against her wishes.
Defendant has not shown that he was deprived of a substantial defense by counsel’s supposed
failure to call the witnesses. Id.

       According to defendant, counsel was also ineffective for failing to impeach the
complainant with evidence of her convictions for criminal offenses of dishonesty, as well as with
inconsistent statements from the preliminary examination and trial. As discussed, defendant has
not identified or provided evidence of the offenses that the complainant allegedly committed.
Because he has failed to offer any proof that the complainant committed an offense of
dishonesty, defendant has not shown that trial counsel was ineffective for failing to impeach her
with evidence of these offenses.

         Similarly, defendant does not identify allegedly inconsistent statements made during the
preliminary examination and trial. Defendant claims in his Standard 4 brief that the complainant
testified at the preliminary examination that he lived with her at the home where the offenses
occurred, and that she testified at trial that he had keys to her house. However, the complainant
did not testify at preliminary examination that she and defendant lived together. Rather, she
testified at the preliminary examination and at trial that although she and defendant had lived
together at other addresses, they did not live together at the time of the offenses, and that
defendant had never lived at that residence with her. She testified further that defendant spent
the night at her home about once a week, but he would call before visiting and she would unlock
the door for him. Because defendant’s assertions about the complainant’s inconsistent
statements are not supported by the record, there has been no showing that defense counsel was
ineffective for failing to impeach the complainant on this basis. Defendant’s arguments do not
overcome the presumption that counsel was effective. See McGraw, 484 Mich at 120.

       Defendant’s arguments that counsel was ineffective for failing to object to the admission
of other acts evidence fails because, as indicated in section II. above, the objection would have
been futile. Counsel is not ineffective for failing to make a futile objection. People v Thomas,
260 Mich App 450, 457; 678 NW2d 631 (2004).

                               IV. INSUFFICIENT EVIDENCE

        Next, defendant argues in his Standard 4 brief that the evidence was insufficient to
support his conviction for first-degree home invasion because he claims there was evidence to
support his assertion that he and the complainant lived together at the address where the offenses
occurred. As previously discussed, no evidence was presented to support this claim, and we are
not persuaded by defendant’s assertions to the contrary. Notably, the complainant testified that
defendant “busted out” a window in order to enter her house after she refused to admit him, and
one of the police officers testified that a window near the back door of the house was cracked.
Defendant does not explain why, if he resided there, he was unable to enter the home through
either the front or back doors. The complainant’s testimony and reasonable inferences arising
from the evidence were sufficient proof that defendant committed home invasion when he
entered the complainant’s residence. People v Bennett, 290 Mich App 465, 472; 802 NW2d 627


                                               -5-
(2010) (holding that circumstantial evidence and reasonable inferences arising from that
evidence may constitute proof of the elements of the crime).

        Defendant also argues that there was insufficient evidence to support his convictions for
felon in possession of a firearm and felony firearm. In lieu of argument, defendant cites People v
Ben Ray Williams, 212 Mich App 607; 538 NW2d 89 (1995), and People v Wolfe, 440 Mich 508;
489 NW2d 748 (1992). In Ben Ray Williams, the police searched the defendant’s residence
while he was not at home, and found cocaine and a firearm in his bedroom. Ben Ray Williams,
supra, at 608. This Court agreed with the defendant that he did not have actual or constructive
possession of the firearm when it was found because “a person away from home cannot be
deemed in possession of a firearm found in his house.” Id. at 609, 611. However, our Supreme
Court reversed this decision in People v Burgenmeyer, 461 Mich 431, 438-439; 606 NW2d 645
(2000), holding that the felony firearm statute prohibits actual or constructive possession of a
firearm at the time the felony offense was committed, not at the time of arrest. Applying
Burgenmeyer to the instant case, the proper question is whether defendant possessed a firearm at
the time he committed the felony offenses. The complainant’s testimony, in addition to the
discovery by police officers of a handgun during defendant’s arrest, was sufficient evidence that
defendant possessed a gun during the commission of first-degree home invasion and unlawful
imprisonment. In addition, the police officer’s testimony that the gun was found near defendant
during their search of the complainant’s residence also established constructive possession.

        Our decision in Wolfe also does not support defendant’s argument. In Wolfe, police
officers searched an apartment where an undercover officer had recently purchased crack cocaine
and found the defendant and five other people, along with drug paraphernalia and a shotgun.
Wolfe, supra, at 511. The defendant was arrested, searched, and found to be in possession of a
beeper, a key to the back door of the apartment, and cash, including two $5 bills that had been
used for the controlled cocaine purchase by the undercover officer. Id. at 512. Another man
found in the apartment was also arrested and searched by police, and an extra shotgun shell was
found on his person that matched the firearm found in the apartment. Id. The Supreme Court
affirmed this Court’s decision reversing the defendant’s conviction for felony firearm, and
concluded that there was no evidence beyond the defendant’s presence in the apartment “that he
had any role in obtaining the gun or in making it available during commission of the underlying
felony.” Id. at 527. Mere presence was “insufficient proof of possession of a firearm during the
commission of a felony.” Wolfe, supra, at 527. However, Wolfe is distinguishable from the
instant case because the evidence established more than defendant’s mere “presence;” it showed
that he possessed a gun during the commission of the offenses. The complainant testified that
defendant assaulted her with a gun while dragging her into her house, and that he held her at
gunpoint and threatened to kill her while holding her in the house. Although only the
complainant testified that she saw defendant with a gun, her testimony, along with police
testimony that the gun and ammunition were found near defendant when he was arrested, was
sufficient to show that defendant possessed the gun during the commission of the offenses.
Bennett, supra, at 472.

                                      V. SPEEDY TRIAL

       Defendant asserts in his Standard 4 brief that his rights were violated under the “180-day
speedy trial rule.” However, defendant also states that he recognizes that the 180-day rule,

                                               -6-
which is set forth at MCL 780.131 and MCR 6.004(D)(1), is not applicable to him because it
applies only to inmates in state prisons who are awaiting trial. Thus, defendant asserts that he is
relying “upon the Federal and State Constitutions,” as well as MCL 768.1, in support of his
argument.

         The right to a speedy trial is guaranteed by both the United States and Michigan
Constitutions. US Const, Am VI; Const 1963, art 1, § 20. The right is also enforced by statute,
MCL 768.1, and court rule, MCR 6.004(A). “[T]he federal and state constitutions and Michigan
statutory law guarantee criminal defendants a speedy trial without reference to a fixed number of
days.” People v McLaughlin, 258 Mich App 635, 644; 672 NW2d 860 (2003). In People v
Cleveland Williams, 475 Mich 245, 249, 261; 716 NW2d 208 (2006), our Supreme Court held
that whether a defendant’s right to a speedy trial has been violated is determined by the
balancing of four factors set forth in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101
(1972): “(1) the length of delay, (2) the reason for delay; (3) the defendant’s assertion of the
right, and (4) the prejudice to the defendant.” When the delay between arrest and trial is less
than 18 months, as in the instant case, the defendant bears the burden of proving prejudice.
People v Rivera, 301 Mich App 188, 193; 835 NW2d 464 (2013). Defendant does not offer
argument as to each of the factors, but asserts that he was clearly prejudiced by the delay and so
is entitled to relief. We disagree.

       Length of Delay

       Approximately 14 months elapsed between the date of defendant’s arrest and the
commencement of trial. Defendant asserts that a “delay approaching one year is presumptively
prejudicial,” citing Doggett v United States, 505 US 647; 112 S Ct 2686; 120 L Ed 2d 520
(1992). However, in Doggett the United States Supreme Court stated that “[d]epending on the
nature of the charges, the lower courts have generally found postaccusation delay ‘presumptively
prejudicial’ at least as it approaches one year.” Id. at 652 n 1. But in People v Cain, 238 Mich
App 95, 112; 605 NW2d 28 (1999), this Court held that “a delay of eighteen months or more . . .
is presumed prejudicial and places a burden on the prosecutor to rebut that presumption.”
Because the length of the delay in the instant case was less than 18 months, this factor does not
weigh in defendant’s favor, and he must establish that he was prejudiced by the delay.

       Reason for Delay

        Defendant asserts that his attorneys were at fault for failing to assert a speedy trial
violation. The record does not indicate that defendant formally demanded a speedy trial as
required by Cain, but the trial court indicated at a pretrial hearing that defendant had complained
about the delay before the commencement of trial. The record also indicates that defendant
asked the court to appoint new counsel, and affirmed that he understood that his case would take
longer to go to trial if he proceeded with his request. Because defendant acquiesced to an
additional period of delay before trial in order to obtain new counsel, we find that this factor
weighs against him.




                                                -7-
       Defendant’s Assertion of His Right

         As aforementioned, defendant did not formally assert his right to a speedy trial prior to
trial. In Cain, we held that a defendant must make a formal demand for a speedy trial in order to
preserve his or her right for appellate review. Cain, supra, at 111. Defendant argues that this
Court should find that he asserted his right to speedy trial based on his desire that the trial court’s
pretrial release order with electronic tether be enforced. Defendant further asserts that he
informed both of his trial attorneys that he desired a speedy trial. However, the record indicates
that defense counsel attempted to obtain defendant’s pretrial release on electronic tether pursuant
to the trial court’s order, but the request was denied by jail officials based on their determination
that defendant was not a candidate for pretrial release due to past violations. We do not agree
with defendant that the court’s order, or defendant’s desire to enforce it, was somehow
equivalent to the assertion of his right to a speedy trial. Similarly, we do not agree that
defendant’s claim that his trial counsel was aware of his desire for a speedy trial was sufficient to
establish his assertion of this right. Moreover, even if defendant had formally asserted his right
to a speedy trial in a timely fashion, he would still be required to prove prejudice because the
delay between his arrest and trial was less than 18 months. Rivera, supra, at 193; Cain, supra, at
112. This factor does not weigh in defendant’s favor.

       Prejudice to the Defendant

       A delay may prejudice either a defendant’s person or defense. Cain, supra, at 114.
“Prejudice to [the defendant’s] person would take the form of oppressive pretrial incarceration
leading to anxiety and concern. Prejudice to his defense might include key witnesses being
unavailable,” or otherwise being unable to adequately prepare his case. People v Collins, 388
Mich 680, 694; 202 NW2d 769 (1972). Defendant argues that his defense was prejudiced by the
delay because he was unable to “gather” further witnesses and favorable evidence that his
attorneys were unable or not willing to obtain. According to defendant, these witnesses included
“neighbors to the home that was shared by the defendant and complainant,” and a “hospital
nurse’s report” that defendant had once broken a window in the complainant’s home to “rescue
the unconscious complainant.” Defendant also claims that he was prejudiced by his inability to
obtain his choice of counsel due to his pretrial confinement. Defendant’s assertions do not
demonstrate that he was prejudiced by the delay.

        Defendant claimed that trial counsel was ineffective for failing to call witnesses who
could testify that he lived in the residence that were willing and available to testify. Thus,
according to defendant, the delay did not affect his ability to secure witnesses who could support
his claim that he could not have committed home invasion because he lived in the home. The
supposed report of a “hospital nurse” on an unrelated matter in which defendant assisted the
complainant during a medical emergency was not relevant to his defense. Regardless, this
evidence was introduced at trial through the complainant’s testimony that defendant had assisted
her when she was unconscious by entering her home through a window. The nurse’s report on
this point would have been cumulative. Finally, defendant does not explain how his confinement
prevented him from obtaining the counsel of his choice. Defendant’s first counsel was retained,
and he asked the court to replace him with appointed counsel. Without further explanation, it is
unclear how defendant’s pretrial incarceration prevented him from securing counsel. By itself,
incarceration does not establish prejudice “unless there is evidence of impairment to the

                                                 -8-
defense.” See Cleveland Williams, supra, at 264. Defendant has not established that his defense
was prejudiced by the delay.

       Defendant has also failed to demonstrate prejudice to his person as a result of the delay.
Although he has asserted that the delay caused him anxiety, anxiety alone is insufficient to
support a violation of the defendant’s right to a speedy trial. Collins, 388 Mich at 694; People v
Gilmore, 222 Mich App 442, 462; 564 NW2d 158 (1997).

                                  VI. JURY INSTRUCTIONS

         At trial, defendant requested a jury instruction on third-degree home invasion. According
to defendant, the instruction was appropriate because he was charged with committing domestic
violence, a misdemeanor, during the home invasion. The trial court denied the request based on
its finding that as a type of assault, domestic violence was specifically included as an element of
first-degree home invasion, so an instruction on third-degree home invasion was not appropriate.
On appeal, defendant argues that third-degree home invasion is a necessarily included lesser
offense of first-degree home invasion, and that because there was evidence to support the lesser
offense, the trial court erred by denying the instruction. We disagree, and conclude that the trial
court properly instructed the jury on first-degree home invasion.

       MCL 750.110a(2) sets forth the elements of first-degree home invasion:

               (2) A person who breaks and enters a dwelling with intent to commit a
       felony, larceny, or assault in the dwelling, a person who enters a dwelling without
       permission with intent to commit a felony, larceny, or assault in the dwelling, or a
       person who breaks and enters a dwelling or enters a dwelling without permission
       and, at any time while he or she is entering, present in, or exiting the dwelling,
       commits a felony, larceny, or assault is guilty of home invasion in the first degree
       if at any time while the person is entering, present in, or exiting the dwelling
       either of the following circumstances exists:

               (a) The person is armed with a dangerous weapon.

               (b) Another person is lawfully present in the dwelling.

MCL 750.110a(4) sets forth the elements of third-degree home invasion, in pertinent part, as
follows:

               (4) A person is guilty of home invasion in the third degree if the person
       does either of the following:

               (a) Breaks and enters a dwelling with intent to commit a misdemeanor in
       the dwelling, enters a dwelling without permission with intent to commit a
       misdemeanor in the dwelling, or breaks and enters a dwelling or enters a dwelling
       without permission and, at any time while he or she is entering, present in, or
       exiting the dwelling, commits a misdemeanor.



                                                -9-
         “[A] requested instruction on a necessarily included lesser offense is proper if the
charged greater offense requires the jury to find a disputed factual element that is not part of the
lesser included offense and a rational view of the evidence would support it.” People v Cornell,
466 Mich 335, 357; 646 NW2d 127 (2002). In People v Wilder, 485 Mich 35, 37; 780 NW2d
265 (2010), our Supreme Court held that in some circumstances, third-degree home invasion is a
necessarily included lesser offense of first-degree home invasion. In the instant case, however,
an instruction on third-degree home invasion as a lesser included offense was not appropriate
because two undisputed elements of first-degree home invasion were present and they were not
elements of third-degree home invasion: first, that defendant committed an assault or intended to
commit an assault while in the dwelling; and second, that defendant was armed with a dangerous
weapon and/or another person was lawfully present in the home. MCL 750.110a(2), (4).
Defendant assaulted the complainant and she was lawfully present in the home when he entered
it; thus, an instruction for third-degree home invasion was not appropriate because no disputed
factual element was part of the greater charged offense that was not part of the lesser. Cornell,
466 Mich at 335. Defendant’s contention that he was entitled to the instruction because the
assault was the misdemeanor offense of domestic violence is not persuasive. Domestic violence
is a crime of assault. MCL 750.81(2). Because assault is specifically included as an element of
first-degree home invasion, the trial court’s instructions were proper. See MCL 750.110a(2).

                                       VII. OVS 8 AND 13

        Defendant argues that the trial court erred in scoring Offense Variable (OV) 8 at 15
points because the basis for the trial court’s decision was unlawful imprisonment for which he
was separately charged, convicted and sentenced. Defendant argues further that the offense
variables should be scored based only on the sentencing offense unless otherwise provided in the
particular variable being scored, citing McGraw, 484 Mich at 133. We do not agree that this
portion of the Court’s opinion in McGraw is applicable to the instant case.

        In McGraw, our Supreme Court considered “whether the offense variables should be
scored solely on the basis of conduct occurring during the sentencing offense or also using
conduct occurring afterward.” McGraw, 484 Mich at 122. The defendant in McGraw broke and
entered into an unoccupied retail store and stole merchandise; after leaving the scene of that
offense, the defendant was later arrested following a police chase. Id. The defendant pleaded
guilty to three counts of breaking and entering a building with intent to commit larceny in
exchange for the dismissal of other charges, including fleeing and eluding the police. Id. at 122-
123. The trial court scored OV 9, number of victims, MCL 777.39, based on its finding that the
defendant had put at least two victims in danger while he was fleeing from the police. Id. at 123.
The defendant argued that “only conduct occurring during the offense of which the defendant
was convicted may be considered.” McGraw, supra, at 124. The Court agreed, and held “that a
defendant’s conduct after an offense is completed does not relate back to the sentencing offense
for purposes of scoring offense variables unless a variable specifically instructs otherwise;”
“[o]ffense variables must be scored giving consideration to the sentencing offense alone, unless
otherwise provided in the particular variable.” Id. at 122, 133-134.

      McGraw does not prevent a trial court from scoring the offense variables based on
conduct that occurred simultaneously with the charged offense, and defendant held the
complainant at gunpoint during the commission of the home invasion. In addition, although the

                                               -10-
trial court did not explain its reasons for scoring the variable on the record, we find that a score
of 15 points for OV 8 was justified based on the fact that defendant asported the victim to a place
of greater danger when he dragged her back into the house after she attempted to flee. MCL
777.38(1)(a). Because the evidence supported the trial court’s score of 15 points for OV 8,
defendant is not entitled to relief on this issue.

        Defendant also argues that the trial court improperly scored 25 points for OV 13, which
addresses a continuing pattern of criminal behavior. MCL 777.43. Twenty-five points should be
scored where “the offense was part of a pattern of felonious criminal activity involving 3 or more
crimes against a person.” MCL 777.43(1)(c). Defense counsel argued at sentencing that the
score was inappropriate because this variable was intended to apply to “more than one victim
and more than one [criminal] transaction” and in the instant case, all of the offenses flowed out
of a single transaction with a single victim. On appeal, defendant also argues that to the extent
the trial court considered his prior felony conviction for possession of a controlled substance,
MCL 333.7403(2)(a)(iv), in scoring OV 13, its decision was improper because his prior offense
was not a crime against a person as required by the statute for scoring of the variable. We
conclude that 25 points was an appropriate score for OV 13.

       The record does not indicate that the trial court considered defendant’s conviction for
possession of a controlled substance in scoring OV 13. The court stated that its decision was
based on the fact that “[t]here was more than three . . . felonious acts right in this case . . . . Let’s
try home invasion first degree. Let’s try assault with a dangerous weapon. Let’s try unlawful
imprisonment. . . . not to mention the felony firearm and the felon in possession.” Thus,
defendant’s argument that the trial court may have improperly considered his controlled
substance conviction is not supported by the record.

        The trial court did not err when it based the score for OV 13 on defendant’s convictions
in the instant case. In People v Gibbs, 299 Mich App 473, 487-488; 830 NW2d 821 (2013), we
held that multiple concurrent offenses arising from the same incident are properly used in scoring
OV 13. The defendant in Gibbs participated in an armed robbery involving three victims. Id. at
478-479. The sentencing court scored OV 13 at 25 points based on the defendant’s convictions
for two counts of armed robbery and one count of unarmed robbery. Id. at 487. We rejected the
defendant’s argument that 25 points were not appropriate because “his convictions arose out of
one incident,” and concluded that multiple concurrent offenses arising from the same incident are
properly used in scoring OV 13. Id. at 487-488. We also noted that MCL 777.43(1)(c), unlike
other subsections of the statute, did not limit the “trial court’s ability to score for more than one
instance arising out of the same criminal episode.” Gibbs, supra, at 488. Defendant’s argument
that his case is distinguishable from Gibbs because the latter case involved multiple victims is
not persuasive. There is no such requirement in the language of the statute, and we did not read
this requirement into the statute in Gibbs. The trial court properly scored 25 points for OV 13.

                                        VIII. COURT COSTS

        Defendant does not challenge the court’s authority to impose costs, but in his Standard 4
brief asserts that he cannot afford the $520 in court costs that were imposed in this case. The
court also assessed a late fee of $104, for a total of $624. According to the record, defendant has
paid $166.34 and owes a balance of $457.66.

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        MCL 769.1k(1) authorizes imposition of costs on defendants who have pleaded or been
found guilty. The statute does not require the court to determine whether a defendant has the
ability to pay the costs. According to the record, the trial court ordered defendant to pay the
$130 crime victim fee, as required by MCL 780.905(1)(a). The trial court also imposed
minimum state costs for each of defendant’s five felony convictions, as well as for his
misdemeanor conviction for domestic violence, totaling $390. See MCL 769.1j(1)(a)-(b)
(providing that a court may impose minimum state costs of $68 for felony convictions, and $50
for misdemeanors). In People v Konopka, 309 Mich App 345, 359-360; 869 NW2d 651 (2015),
we held that where costs are not authorized by statute, the trial court must establish a factual
basis for the costs imposed so that this Court may “determine whether the costs imposed were
reasonably related to the actual costs incurred by the trial court, as required by MCL
769.1k(1)(b)(iii).” Because the defendant in Konopka challenged the lack of reasoning for the
costs imposed, we remanded to the trial court to establish a factual basis for the costs and to give
the defendant “the opportunity to challenge the reasonableness of the costs imposed.” Id. at 360.
In the instant case, the court’s imposition of costs was authorized by statute, so defendant is not
entitled to a remand for a hearing on the reasonableness of the costs under Konopka.

      Regarding the late penalty, pursuant to MCL 600.4803(1), “[a] late penalty may be
waived by the court upon the request of the person subject to the late penalty.” It is not clear
from defendant’s affidavit whether he has requested waiver of the late fee from the trial court.
However, the statute permits him to do so.

       Affirmed.



                                                             /s/ Deborah A. Servitto
                                                             /s/ Henry William Saad
                                                             /s/ Colleen A. O'Brien




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