             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                  revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS


 PEOPLE OF THE STATE OF MICHIGAN,                                       UNPUBLISHED
                                                                        May 28, 2020
                 Plaintiff-Appellant,

 v                                                                      No. 347358
                                                                        Wayne Circuit Court
 LEROY WILLIAMS,                                                        LC No. 18-006845-02-FC

                 Defendant-Appellee.


 PEOPLE OF THE STATE OF MICHIGAN,

                 Plaintiff-Appellant,

 v                                                                      No. 349359
                                                                        Wayne Circuit Court
 DAVID ARNOLD CLIFFORD,                                                 LC No. 18-006845-01-FC

                 Defendant-Appellee.


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

PER CURIAM.

        In Docket No. 347358, the prosecution appeals as of right the circuit court’s order
dismissing defendant Leroy Williams’s charges of first-degree premeditated murder, MCL
750.316(1)(a), and conspiracy to commit first-degree murder, MCL 750.157a. The prosecution
also argues on appeal that the circuit court abused its discretion when it did not allow the prosecutor
to amend the felony information to reinstate the charge of possession of a firearm during the
commission of a felony (“felony-firearm”), MCL 750.227b, against Williams. We affirm.




                                                 -1-
        In Docket No. 349359, the prosecution appeals by delayed leave granted1 the circuit court’s
order dismissing defendant David Arnold Clifford’s charges of first-degree premeditated murder
and conspiracy to commit first-degree murder. The prosecution also argues on appeal that the
circuit court abused its discretion when it did not allow the prosecutor to amend the felony
information to reinstate the charge of identity theft, MCL 445.65, against Clifford. We reverse
and remand for proceedings consistent with this opinion.

                                       I. BACKGROUND

       This case arises out of the shooting death of the decedent on May 28, 2014. The decedent,
who was 27 years old and was cognitively delayed, resided with Clifford at all relevant times. On
May 2, 2013, a $250,000 life insurance policy was issued to the decedent. Clifford was listed as
the beneficiary. The monthly premium payments were paid from the decedent’s bank account, to
which Clifford was the representative payee.

        On the evening of the murder, the decedent was seen walking around the parking lot of a
liquor store while talking on a cellular telephone. Telephone records reveal that, at 10:10 p.m.,
the decedent called Clifford, who then returned the decedent’s call at 10:13 p.m. Also at
10:13 p.m., Vaughn Robinson received a telephone call from Clifford. Robinson then called
Darren Hannah.2 Two witnesses who were sitting outside of the liquor store observed the decedent
speaking on his cellular telephone before going to the corner of the store, crossing one street, and
then walking down another street. One minute later, the witnesses heard four to six gunshots and
went to investigate. The witnesses found the decedent, who had been shot, lying on the ground.
Two bullet fragments were recovered from the scene of the shooting, along with the decedent’s
two cellular telephones, Bluetooth headset, and wallet. An unknown individual called 911 at
10:21 p.m. At 10:47 p.m., Clifford received a telephone call from Robinson.

        On June 27, 2014, Detroit Police Officers Robert Skender and Shawn Mortier stopped
Hannah’s vehicle, in which Williams was a passenger, because he was not wearing a seatbelt.
Officer Skender arrested Hannah for driving without a driver’s license. Officer Mortier asked
Williams to step out of the vehicle, and it was discovered that Williams had a box of ammunition
in his pocket. Officer Skender searched the trunk of the vehicle and recovered a gun. Williams
admitted that he owned the gun, and testing of the gun revealed that it matched a bullet fragment
found at the murder scene.

       In Docket No. 347358, Williams was charged with first-degree premeditated murder,
conspiracy to commit first-degree murder, and felony-firearm. In Docket No. 349359, Clifford
was charged with first-degree premeditated murder, conspiracy to commit first-degree murder,




1
  People v Clifford, unpublished order of the Court of Appeals, entered September 23, 2019
(Docket No. 349359).
2
  Robinson and Hannah were codefendants in this case. Their charges were dismissed, but they
are not parties to this appeal.



                                                -2-
identity theft, possession of a firearm by a felon (“felon-in-possession”), MCL 750.224f, and
felony-firearm.3

         Following a preliminary examination, the district court bound Williams over on the charges
of first-degree murder and conspiracy to commit first-degree murder, but dismissed the charge of
felony-firearm. Clifford was bound over on the charges of first-degree murder, conspiracy to
commit first-degree murder, felon-in-possession, and felony-firearm, but the district court
dismissed the charge of identity theft. Once Williams and Clifford were bound over to circuit
court, Williams filed a motion to quash, which Clifford joined. The prosecutor also filed a motion
to amend the felony information to reinstate the charges against Williams and Clifford that the
district court had dismissed. The circuit court determined that there was insufficient evidence to
support the murder-related charges. Therefore, the circuit court dismissed all of the charges against
Williams and dismissed the murder-related charges against Clifford.4 These appeals followed.

                                         II. DISCUSSION

        The prosecution argues that the circuit court erred when it determined there was insufficient
evidence to support Williams’s and Clifford’s bindovers with respect to the murder-related
charges, and that the circuit court abused its discretion when it denied the prosecutor’s motion to
reinstate the charges against Williams and Clifford.

                   A. BINDOVER OF WILLIAMS (DOCKET NO. 347358)

       The prosecution argues that there was sufficient evidence to establish probable cause that
Williams committed first-degree murder and conspiracy to commit first-degree murder. We
disagree.

        A district court’s bindover decision regarding the sufficiency of the evidence is reviewed
for an abuse of discretion. People v Flick, 487 Mich 1, 9; 790 NW2d 295 (2010). “A trial court
abuses its discretion when its decision falls outside the range of reasonable and principled
outcomes.” People v Waterstone, 296 Mich App 121, 131-132; 818 NW2d 432 (2012). “In
reviewing the bindover decision, a circuit court must consider the entire record of the preliminary
examination and may not substitute its judgment for that of the district court.” People v
Henderson, 282 Mich App 307, 312-313; 765 NW2d 619 (2009). “Because the legal issue
presented is whether the magistrate abused his or her discretion, this Court gives no deference to
the circuit court’s decision regarding a motion to quash a bindover order.” People v Harlan, 258
Mich App 137, 145; 669 NW2d 872 (2003).

      “The purpose of the preliminary examination is to determine whether ‘a felony has been
committed and [whether] there is probable cause for charging the defendant therewith[.]’ ” People


3
 Law enforcement located a shotgun during a search of Clifford’s residence. The shotgun was
not found to be associated with the murder.
4
  Although the orders entered by the circuit court did not address the prosecutor’s motions to amend
the information to reinstate the charges against Clifford and Williams, we will nonetheless address
these issues on appeal. See MCR 7.216(A)(7).


                                                -3-
v Plunkett, 485 Mich 50, 57; 780 NW2d 280 (2010), citing MCL 766.13 (alteration in original).
“Probable cause requires a quantum of evidence sufficient to cause a person of ordinary prudence
and caution to conscientiously entertain a reasonable belief of the accused’s guilt.” People v Yost,
468 Mich 122, 126; 659 NW2d 604 (2003) (quotation marks and citation omitted). If probable
cause exists, the district court must bind the defendant over to the circuit court. Plunkett, 485 Mich
at 57. “The preliminary examination thus serves the public policy of ceasing judicial proceedings
where there is a lack of evidence.” People v Hunt, 442 Mich 359, 362; 501 NW2d 151 (1993).

        At the outset, we note that the prosecution improperly attempts to use certain statements
that a witness made to the police as substantive evidence. The witness, who was at the liquor store
the night of the murder, told the police that he had heard the decedent say, “I’m coming around
the corner now.” He also told the police that he had seen two black men running from the area
just after he heard shots being fired. However, those prior statements only came out during the
preliminary examination because the witness denied that he had heard the decedent say anything
while he was on the telephone, or that he had seen anyone running away from the area of the
murder. The prosecutor then attempted to impeach the witness with his prior statements in his
police statement. Such prior unsworn statements of a witness are hearsay, and therefore are
generally inadmissible as substantive evidence. People v Jenkins, 450 Mich 249, 261-262; 537
NW2d 828 (1995). “[A] prosecutor may not use an elicited denial as a springboard for introducing
substantive evidence under the guise of rebutting the denial.” People v Stanaway, 446 Mich 643,
693; 521 NW2d 557 (1994). In this case, the prosecutor attempted to impeach the witness with
his prior inconsistent statements, and now attempts to use that impeachment evidence as
substantive evidence on appeal. This is an improper use of impeachment evidence, and we will
not consider the evidence as substantive evidence.

         Regarding Williams’s charge of first-degree murder, the prosecutor was required to
establish that there was probable cause that Williams intentionally killed the decedent with
premeditation and deliberation. MCL 750.316(1)(a); People v Oros, 502 Mich 229, 240; 917
NW2d 559 (2018). “To premeditate is to think about beforehand; to deliberate is to measure and
evaluate the major facets of a choice or problem.” People v Morrin, 31 Mich App 301, 329; 187
NW2d 434 (1971) (citations omitted). Williams also could have been bound over as an aider or
abettor. “A person who aids or abets the commission of a crime may be convicted and punished
as if he directly committed the offense.” People v Bosca, 310 Mich App 1, 20-21; 871 NW2d 307
(2015) (quotation marks and citation omitted).

               To support a finding that a defendant aided and abetted a crime, the
       prosecution must show that (1) the crime charged was committed by the defendant
       or some other person, (2) the defendant performed acts or gave encouragement that
       assisted the commission of the crime, and (3) the defendant intended the
       commission of the crime or had knowledge that the principal intended its
       commission at the time he gave aid and encouragement. [People v Izarraras-
       Placante, 246 Mich App 490, 495-496; 633 NW2d 18 (2001) (quotation marks and
       citation omitted).]

        The prosecution argues that sufficient evidence was presented that supports “an inference
that the victim’s death was orchestrated, premeditatedly, by [Clifford], and one of the weapons
used [in the murder] was provided by [Williams].” This assertion illustrates that the main evidence


                                                 -4-
connecting Williams to the murder is Williams’s ownership of the gun associated with the murder,
and his possession of the gun 30 days after the murder. Williams admitted that he had purchased
the gun “off the street” sometime before the murder, and that he typically kept the gun buried by
a vacant house. However, there was no evidence admitted at the preliminary examination about
who was in actual possession of Williams’s gun at the time of the murder. Indeed, the prosecution
does not assert that Williams was one of the shooters. Rather, the prosecution asserts there was
sufficient evidence that Williams knowingly “provided” his gun to kill the decedent. We disagree.

         The prosecution’s theory is that Clifford orchestrated and planned the decedent’s murder
based on his connection to the decedent’s bank account and life insurance policy, as well as various
telephone calls that he made and received in the time leading up to the decedent’s murder. Despite
the fact that evidence was not introduced to support that Williams was aware of the bank account
or life insurance policy, the prosecutor introduced evidence of telephone records to support the
argument that the murder was premeditated. The telephone records established the following time
line for the night of the murder:

       9:45 p.m.              Clifford called Robinson

       10:10 p.m.             The decedent called Clifford

       10:13 p.m.             Clifford called the decedent

       10:13 p.m.             Robinson called Clifford

       10:13 p.m.             Clifford called Robinson

       10:13 p.m.             Robinson called Hannah

       10:21 p.m.             911 call regarding the decedent’s murder

       10:47 p.m.             Robinson called Clifford.

        The prosecution does not argue that Williams made or received any telephone calls on the
night of the murder or that Williams and Clifford were acquainted. At the preliminary examination
and when defending Williams’s motion to quash in the circuit court, the prosecutor attempted to
indirectly connect Williams to Clifford, Robinson, and Hannah and, in doing so, attempted to link
Williams circumstantially to the planning of the murder. Specifically, the prosecutor relied on the
fact that Williams was a passenger in Hannah’s motor vehicle 30 days after the murder, that
Hannah is Robinson’s grandson, and that Robinson and Clifford worked together. However, the
prosecutor failed to show that Williams knowingly “provided” his gun to another for the purpose
of committing murder.5 Instead, the prosecutor merely put forth evidence that Williams and



5
  Preliminarily, the prosecution does not identify the person to whom Williams gave his gun. At
the time the trial court decided the motions to quash, only Clifford, Williams, and Robinson were
charged with the shooting. After the trial court granted the motions to quash, the charges against
Robinson were dismissed.


                                                -5-
Hannah were together 30 days after the murder and that Hannah was related to Robinson, who
knew Clifford.

        Additionally, the record is devoid of evidence that Williams communicated with Hannah,
Clifford, or Robinson before the murder occurred. Instead, the prosecution relies on evidence that
Williams and Robinson communicated over 30 days after the murder occurred to support that
Williams was involved in the planning of the murder. Specifically, the prosecution points to
telephone records that support that Williams and Robinson called one another in the two days
before Williams pleaded guilty to a weapon-related charge that was issued as a result of the gun
found during the traffic stop. Although Robinson only called Williams four times and Williams
called Robinson once,6 the prosecution asserts that these calls, along with the series of other
telephone calls between Robinson, Hannah, and Clifford, “allow for the inference that an
agreement existed between [Williams] and the others to commit the unlawful act of first-degree
premediated murder.” We conclude that this tenuous inference, combined with insufficient
evidence concerning Williams’s role in the murder, is insufficient to establish probable cause that
Williams premeditated and deliberately killed the decedent. We fail to see how these telephone
calls demonstrate that Williams was part of a plan formed months earlier to murder the decedent
or show that Williams had provided his gun to Robinson (whose charges were dismissed) or to
Clifford for the purpose of committing murder. Thus, the district court abused its discretion when
it bound over Williams on the charge of first-degree murder.

      The prosecution next argues that the district court did not abuse its discretion when it bound
over Williams on the charge of conspiracy to commit first-degree murder.

              A criminal conspiracy is a partnership in criminal purposes, under which
       two or more individuals voluntarily agree to effectuate the commission of a
       criminal offense. The individuals must specifically intend to combine to pursue the
       criminal objective, and the offense is complete upon the formation of the
       agreement. The intent, including knowledge of the intent, must be shared by the
       individuals. Thus, there must be proof showing that the parties specifically
       intended to further, promote, advance, or pursue an unlawful objective. Direct
       proof of a conspiracy is not required; rather, proof may be derived from the
       circumstances, acts, and conduct of the parties. [People v Jackson, 292 Mich App
       583, 588; 808 NW2d 541 (2011) (quotation marks and citations omitted).]

       The prosecution argues that there was sufficient evidence to find probable cause that
Williams conspired to murder the decedent because Clifford was aware of the decedent’s bank
account and life insurance policy, because of the various telephone calls the night of the murder,
and because of the telephone calls between Williams and Robinson in the two days before
Williams pleaded guilty to the weapon-related charge. We conclude that this evidence does not




6
  It is unclear whether a conversation took place for the majority of these telephone calls because
the duration of three of the telephone calls was 10 seconds or less. The other two calls were 51
and 57 seconds in duration.


                                                -6-
create a reasonable inference to establish probable cause that Williams was part of a plan to murder
the decedent.

        There is no evidence that Williams knew about the bank account or the life insurance
policy, or that he received any of the money therefrom. Furthermore, as already discussed, no
evidence supports that Williams was contacted by telephone on the night of the murder, and the
inference that Robinson contacted Williams because Robinson knew that Williams planned to
plead guilty to a crime that related to the alleged murder weapon is entirely tenuous. Because there
was insufficient evidence to establish probable cause that Williams was part of a plan to murder
the decedent, we conclude that the district court abused its discretion when it bound over Williams
on the charge of conspiracy to commit first-degree murder.

         B. REINSTATEMENT OF WILLIAMS’S CHARGE (DOCKET NO. 347358)

        The prosecution argues that the circuit court abused its discretion when it denied the
prosecutor’s motion to amend the felony information to reinstate the felony-firearm charge against
Williams. We disagree. “A trial court’s decision to grant or deny a motion to amend an
information is reviewed for an abuse of discretion.” People v McGee, 258 Mich App 683, 686-
687; 672 NW2d 191 (2003). The interpretation of a statute or court rule is a question of law subject
to de novo review. Id. at 686.

        “Both MCL 767.76 and MCR 6.112(H) authorize a trial court to amend an information
before, during, or after trial.” McGee, 258 Mich App at 686. A trial court may allow the
prosecution to amend the felony information unless “amendment would unduly prejudice the
defendant because of unfair surprise, inadequate notice, or insufficient opportunity to defend.”
People v Goecke, 457 Mich 442, 462; 579 NW2d 868 (1998) (quotation marks and citation
omitted). “Where a preliminary examination is held on the very charge that the prosecution seeks
to have reinstated, the defendant is not unfairly surprised or deprived of adequate notice or a
sufficient opportunity to defend at trial . . . .” Id.

         In this case, the district court held a preliminary examination involving Williams’s charge
of felony-firearm, and ultimately dismissed the charge. Once Williams was bound over to the
circuit court, the prosecutor moved to amend the felony information to reinstate the felony-firearm
charge. The circuit court determined, however, that there was insufficient evidence to support
Williams’s bindover on the first-degree murder charge, and therefore, there was insufficient
evidence to support the felony-firearm charge. This was not an abuse of discretion.

        Under the plain language of the felony-firearm statute, a predicate felony conviction is
required to sustain a felony-firearm conviction. People v Coleman, 327 Mich App 430, 441; 937
NW2d 372 (2019). As discussed in section II(A), there was insufficient evidence to establish
probable cause that Williams used the gun to murder the decedent. Without a first-degree murder
charge, there is no predicate felony for a felony-firearm charge. Consequently, we conclude that
the circuit court did not abuse its discretion by denying the prosecutor’s motion to reinstate the
charge of felony-firearm against Williams. See People v Akins, 259 Mich App 545, 554; 675
NW2d 863 (2003) (holding that the elements of felony-firearm are possession of “a firearm during
the commission of, or the attempt to commit, a felony”) (quotation marks and citation omitted).




                                                -7-
                   C. JUDICIAL REASSIGNMENT (DOCKET NO. 347358)

         The prosecution argues that, if this Court remands the case to the circuit court, it should be
reassigned to a different circuit court judge because the judge’s comments regarding the case
against Williams demonstrate her bias against the prosecutor’s case. Because we conclude that
the circuit court properly dismissed the murder-related charges against Williams and did not abuse
its discretion when it denied the prosecutor’s motion to amend the information, it is not necessary
to consider this argument.

                    D. BINDOVER OF CLIFFORD (DOCKET NO. 349359)

       The prosecution argues that there was sufficient evidence to establish probable cause to
bind over Clifford on the charges of first-degree murder and conspiracy to commit first-degree
murder. We agree.

        At the outset, we note that Clifford argues that the State of Michigan Forensic Science
Division report regarding the bullet fragments found at the murder scene lacked the necessary
foundation to be introduced at the preliminary examination and that, even with a proper
foundation, the report was contradictory and ambiguous. We disagree. The report was not
excluded by the rules of hearsay and did not require establishment of any foundation for purposes
of the preliminary examination. MCL 766.11b(1)(d) states:

               The rules of evidence apply at the preliminary examination except that the
       following are not excluded by the rule against hearsay and shall be admissible at
       the preliminary examination without requiring the testimony of the author of the
       report, keeper of the records, or any additional foundation or authentication. . . .
       Except for the police investigative report, a report prepared by a law enforcement
       officer or other public agency. Reports permitted under this subdivision include,
       but are not limited to, a report of the findings of a technician of the division of the
       department of state police concerned with forensic science, a laboratory report, a
       medical report, a report of an arson investigator, and an autopsy report.

        Thus, the report was admissible at the preliminary examination under MCL 766.11b(1)(d),
and any alleged issues pertaining to the contradictory and ambiguous nature of the report went to
the credibility and weight of the report. People v Unger, 278 Mich App 210, 222; 749 NW2d 272
(2008). Because it is the duty of the district court to “pass judgment . . . on the weight and
competency of the evidence,” People v Anderson, 501 Mich 175, 184; 912 NW2d 503 (2018),
quoting People v Paille #2, 383 Mich 621, 627; 178 NW2d 465 (1970), Clifford’s argument
concerning the report is unavailing.7




7
  Clifford also argues that the prosecution is improperly attempting to use the prosecutor’s
questions at the preliminary examination as substantive evidence on appeal. We addressed this
issue when we discussed the prosecutor’s efforts to impeach the witness with his prior statements
made to the police. As noted earlier, the prosecutor’s statements and questions are not considered



                                                 -8-
        With respect to whether the district court abused its discretion by binding Clifford over on
the charge of first-degree murder, the prosecutor was required to establish probable cause that
Clifford intentionally killed the decedent with premeditation and deliberation.
MCL 750.316(1)(a); Oros, 502 Mich at 240. “To premeditate is to think about beforehand; to
deliberate is to measure and evaluate the major facets of a choice or problem.” Morrin, 31 Mich
App at 329. Clifford also could have been bound over for aiding and abetting the crime of first-
degree murder. “A person who aids or abets the commission of a crime may be convicted and
punished as if he directly committed the offense.” Bosca, 310 Mich App at 20-21.

               To support a finding that a defendant aided and abetted a crime, the
       prosecution must show that (1) the crime charged was committed by the defendant
       or some other person, (2) the defendant performed acts or gave encouragement that
       assisted the commission of the crime, and (3) the defendant intended the
       commission of the crime or had knowledge that the principal intended its
       commission at the time he gave aid and encouragement. [Izarraras-Placante, 246
       Mich App at 495-496.]

        The prosecutor submitted evidence to show that the decedent contacted Clifford the night
of the murder. As stated in section II(A), the relevant time line of telephone calls is as follows:

       9:45 p.m.       Clifford called Robinson

       10:10 p.m.      The decedent called Clifford

       10:13 p.m.      Clifford called the decedent

       10:13 p.m.      Robinson called Clifford

       10:13 p.m.      Clifford called Robinson

       10:13 p.m.      Robinson called Hannah

       10:21 p.m.      911 call regarding the decedent’s murder

       10:47 p.m.      Robinson called Clifford.




as part of this Court’s review. Additionally, Clifford argues that Williams’s statement that he
owned the gun and that he pleaded guilty to a charge in relation to the gun are not admissible
against Clifford for purposes of establishing that he either aided and abetted or conspired with
Williams to murder the decedent. Because we concluded that there was insufficient evidence to
link Williams to the murder, we will not consider Williams’s admissions and guilty plea when
deciding whether the district court abused its discretion by binding Clifford over on the murder-
related charges.




                                                -9-
        When interviewed by law enforcement on July 30, 2014, Clifford claimed that, with the
exception of going around the corner to the store, he was at home on the night of the murder.
However, Clifford’s telephone location data establishes that Clifford’s cellular telephone was in
the vicinity of the murder. Evidence supports that Clifford never let anyone use his cellular
telephone, and Clifford admitted that the decedent contacted him a short period of time before the
murder occurred and asked Clifford to pick him up. Clifford indicated that he refused to do so
because it was “so late.” However, when Clifford spoke to the decedent at 10:13 p.m., Clifford’s
cellular telephone was in the vicinity of the homicide scene. Instead of taking steps to pick up the
decedent, Clifford immediately called Robinson and the decedent was murdered less than 10
minutes later. Thus, a person of ordinary prudence and caution could conscientiously entertain a
reasonable belief that Clifford declined to pick up the decedent so that he could communicate the
decedent’s location to Robinson so as to facilitate the murder.8 Indeed, after the 911 call was made
at 10:21 p.m., Clifford’s cellular telephone began utilizing towers near his home, thereby
supporting that Clifford returned home after the murder was completed.

         It is also reasonable to believe that Clifford intended for the decedent to be murdered on
the basis of the various telephone calls on the night of the murder. Although Clifford argues that
the number of telephone calls between him and Robinson were not suspicious because he was
friends with Robinson, the prosecutor presented evidence concerning the increased volume of calls
in the time leading up to the murder. Specifically, on May 27, 2014, there were eight telephone
calls between the cellular telephones associated with Robinson and Clifford. On May 28, 2014,
the day of the murder, there were 17 telephone calls and one text message. In the three days that
followed the murder, there were only four calls, five calls, and eight calls, respectively. Evidence
also supports that the number of telephone calls between the cellular telephones associated with
Hannah and Robinson increased considerably on the date of the murder. Specifically, on the date
of the murder, 24 telephone calls were made and two text messages were sent. In contrast, on
May 27, 2014, only three telephone calls were made. In the two days following the murder, eight
telephone calls and five telephone calls were made, respectively. Text messages were only sent
on the date of the murder. Consequently, the record evidence supports that the amount of
communication between Robinson and Clifford, and between Robinson and Hannah, increased
dramatically on the date of the murder and that some of the telephone calls were made within
minutes of the murder. Although there could have been an innocent reason for the numerous
telephone calls given Robinson’s relationships with Clifford and Hannah, the prosecutor was not
required to negate every reasonable theory consistent with Clifford’s innocence. See People v
Hardiman, 466 Mich 417, 423-424; 646 NW2d 158 (2002).

       The prosecutor also presented evidence that Clifford had a motive to kill the decedent.
“Although motive is not an essential element of the crime, evidence of motive in a prosecution for
murder is always relevant. In cases in which the proofs are circumstantial, evidence of motive is


8
  We note that Clifford argues that the cellular tower data undermined the prosecution’s theory
that Clifford aided and abetted the decedent’s murder because he would not have had to call
Robinson if he was in the area of the murder. In addition to this argument being purely speculative,
the prosecutor was not required to rebut every reasonable theory of Clifford’s innocence. People
v Hardiman, 466 Mich 417, 423-424; 646 NW2d 158 (2002).


                                               -10-
particularly relevant.” Unger, 278 Mich App at 223 (citations omitted). In this case, the prosecutor
presented evidence that Clifford orchestrated and planned the decedent’s murder based on his
connection to the decedent’s bank account and life insurance policy. The prosecutor asserted that
Clifford had applied for the decedent’s life insurance policy when the decedent was 25 years old
and had named himself as the beneficiary of the $250,000 policy. Indeed, less than three months
after the murder, Clifford sought to collect the proceeds from the life insurance policy. Clifford
was also a payee on the decedent’s bank account, and evidence supports that the decedent did not
have control of his bank account. Specifically, the prosecutor highlighted purchases that “a
cognitively impaired grown man in his mid-twenties” should not need, such as a prom dress and a
payment to a funeral home. The monthly premium payments for the life insurance policy were
also paid from this bank account. Importantly, the evidence does not support that the decedent
was shot in the course of a robbery given that he was found with his wallet, cellular telephones,
and Bluetooth headset. The increased amount of communication on the date of the murder,
together with the fact that Clifford lied about his location to the police, the fact that Clifford was
aware of the decedent’s location, and evidence that Clifford had a motive to murder the decedent,
are sufficient to establish the probable cause necessary to bind over Clifford on the charge of first-
degree murder. While we acknowledge that Clifford’s arguments on appeal could cast doubt
regarding his guilt, a magistrate may not decline to bind over a defendant where there is a
“reasonable doubt as to his guilt.” See Yost, 468 Mich at 128. “[F]inding guilt beyond a reasonable
doubt is the province of the jury.” See id. at 126.

        The same facts support that there was probable cause to bind over Clifford on the charge
of conspiracy to commit first-degree murder. Evidence of the various telephone calls between
Clifford and Robinson support that Clifford was communicating a plan to kill the decedent by
telling Robinson the decedent’s location. Although Clifford argues that there was insufficient
evidence to support the bindover for conspiracy to commit first-degree murder because there was
no evidence that Clifford ever spoke with Hannah, it was not necessary that Clifford speak with
Hannah to establish a conspiracy. Indeed, a conspiracy could exist where all of the individuals
who were a part of the conspiracy shared the knowledge of the conspiracy. People v Meredith,
209 Mich App 403, 412-413; 531 NW2d 749 (1995). Thus, it was not necessary for the prosecutor
to establish that Clifford communicated directly with all of the members of the conspiracy. We
conclude that the district court acted within its discretion when it found that there was probable
cause to bind over Clifford on the charges of first-degree murder and conspiracy to commit first-
degree murder.

         E. REINSTATEMENT OF CLIFFORD’S CHARGE (DOCKET NO. 349359)

        The prosecution next argues that the circuit court abused its discretion when it did not allow
the prosecutor to amend the felony information to reinstate the charge of identity theft against
Clifford. We agree in part.

       Because the charge of identity theft was addressed at the preliminary examination, Clifford
was not unduly prejudiced by the prosecutor’s request to reinstate that charge, see Goecke, 457
Mich at 462, and we must consider whether there was sufficient evidence to establish probable
cause that Clifford committed identity theft. For purposes of the preliminary examination, the
prosecutor was required to establish probable cause that Clifford (1) used the decedent’s personal



                                                -11-
identifying information, (2) to obtain goods, services, or money, (3) with the intent to defraud.
MCL 445.65(1)(a)(i); People v Miller, 326 Mich App 719, 728; 929 NW2d 821 (2019).

         The prosecution argues that Clifford committed identity theft when he used the decedent’s
identifying information to apply for a life insurance policy. While the prosecution asserts that the
decedent did not have the intellectual ability to apply for the life insurance policy himself and,
therefore, Clifford must have done so, there was no evidence that the application was submitted
fraudulently. Although a claim consultant from American National Insurance testified that there
were multiple discrepancies involving Clifford’s relationship to the decedent listed throughout the
application and the accompanying documents, there was no evidence that the decedent was not the
individual who applied for the policy. Indeed, the claim consultant testified that, because the
application for the insurance policy was submitted electronically, she had no information that
anyone other than the decedent completed the application. Although the prosecution contends that
the decedent’s limited intellectual ability prevented him from applying for the policy, without more
evidence that the decedent was not the person who submitted the application, we conclude that
this inference is too tenuous to establish probable cause. Therefore, the circuit court did not abuse
its discretion when it denied the prosecutor’s motion to amend the felony information to reinstate
the identity theft charge as it relates to the life insurance policy.

        The prosecution next argues that there was evidence sufficient to establish probable cause
that Clifford committed identity theft when used the decedent’s bank account to make purchases
for himself. It is undisputed that Clifford was named as a representative payee on the decedent’s
bank account. The prosecution argues that Clifford used the decedent’s bank account to make
unauthorized purchases, and supports this argument with evidence of purchases made for which
the decedent would have no use, as well as various bank withdrawls. Examples include (a) the
purchase of automobile related items from Autozone, O’Reilly Auto Parts, and gas stations; (b)
purchases at a prom dress store; (c) money paid to a funeral home; (d) withdrawals at MotorCity
and Greektown Casinos; and (e) withdrawals at bank locations that were signed by Clifford. The
charges at gas stations could reasonably be determined to have been made by the decedent, either
for the purchase of merchandise inside the gas station, or for paying Clifford gas money while
Clifford drove the decedent around. The other charges, however, are out of line with the testimony
regarding the decedent’s character. It is unlikely that a man in his mid-20s would need to buy a
prom dress, or make a purchase at a funeral home, or make purchases at an automotive parts store
when there was no evidence that he owned a vehicle. Accordingly, we conclude that a person of
ordinary prudence and caution could conscientiously entertain a reasonable belief that Clifford
committed identity theft. See Yost, 468 Mich at 126. Because there was probable cause to believe
that Clifford committed identity theft, the circuit court abused its discretion when it declined to
amend the felony information to reinstate that charge against Clifford.

                                       III. CONCLUSION

       In Docket No. 347358, we affirm the circuit court’s decisions to dismiss Williams’s
charges of first-degree murder and conspiracy to commit murder and to deny the prosecutor’s
motion to amend the felony information to reinstate the charge of felony-firearm. In Docket No.
349359, we reverse the circuit court’s decisions to dismiss Clifford’s charges of first-degree
murder and conspiracy to commit murder and to deny the prosecutor’s motion to amend the felony



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information to reinstate the charge of identity theft. We remand for proceedings consistent with
this opinion. We do not retain jurisdiction.



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




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