                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 2, 2018
              Plaintiff-Appellee,

v                                                                  No. 339569
                                                                   Saginaw Circuit Court
CARL JOSEPH WARDELL,                                               LC No. 16-042834-FH

              Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and GLEICHER and LETICA, JJ.

PER CURIAM.

         Carl Joseph Wardell appeals as of right his jury trial convictions of first-degree home
invasion, MCL 750.110a(2), conspiracy to commit first-degree home invasion, MCL
750.110a(2), possession of burglar’s tools, MCL 750.116, four counts of felon in possession of a
firearm (felon-in-possession), MCL 750.224f, and five counts of possessing a firearm during the
commission of a felony (felony-firearm), MCL 750.227b. Wardell was sentenced as a fourth-
offense habitual offender, MCL 769.12, to concurrent terms of 23 to 50 years’ imprisonment for
the first-degree home invasion and conspiracy to commit first-degree home invasion convictions
and 10 to 20 years’ imprisonment for the possession of burglar’s tools and felon-in-possession
convictions, and to consecutive terms of 2 years’ imprisonment for each felony-firearm
conviction. We affirm.

                                I. FACTUAL BACKGROUND

       Wardell’s convictions stem from a break-in that occurred at a residential home in
Saginaw Township. While the homeowners were at work, Wardell and his nephew, Joseph
Gornto, “ransacked” the home, stealing hunting supplies, firearms, ammunition, prescription
medication, electronics, and jewelry, among other items. In the basement of the home, the police
located an opened can of Sprite soda, which was subsequently found to have Wardell’s DNA on
it. The police also obtained surveillance footage from a nearby business that showed two
suspects loading items into the trunk of an older model silver Chevrolet Malibu. One subject
was positively identified as Gornto, and the Malibu was identified as belonging to Wardell’s
mother. When Michigan State Police troopers executed an arrest warrant at Wardell’s home for
another criminal matter a few weeks after the break-in, the troopers noticed prescription bottles
belonging to one of the victims in Wardell’s basement bedroom. A subsequent search of
Wardell’s basement and yard yielded numerous items from victims’ home.

                                               -1-
                                II. LAY OPINION TESTIMONY

       Wardell argues that the trial court abused its discretion in allowing Detectives Scott
Jackson and James MacDonald to testify about surveillance footage shown to the jury. He
contends that their testimony was not proper lay opinion testimony and that it invaded the
province of the jury. We disagree. Wardell properly preserved this issue as to Jackson’s
testimony, so we review it for an abuse of discretion. People v Fomby, 300 Mich App 46, 48;
831 NW2d 887 (2013). However, because he did not preserve the issue as to MacDonald’s
testimony by raising this objection at trial, our review is for plain error affecting Wardell’s
substantial rights. People v Coy, 258 Mich App 1, 12; 669 NW2d 831 (2003).

       Under MRE 701, the opinion of a lay witness “is limited to those opinions or inferences
which are (a) rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue.” However,
“[w]here a jury is as capable as anyone else of reaching a conclusion on certain facts, it is error
to permit a witness to give his own opinion or interpretation of the facts because it invades the
province of the jury.” People v Perkins, 314 Mich App 140, 161-162; 885 NW2d 900 (2016),
superseded in part on other grounds sub nom People v Hyatt, 316 Mich App 368; 891 NW2d 549
(2016) (quotation marks and citation omitted). It is also well settled that witnesses are prohibited
from expressing an opinion on a defendant’s guilt. Fomby, 300 Mich App at 53.

        In Fomby, a police officer’s narrative description of a surveillance video and the
identification of suspects in still images captured from the video were held to be admissible lay
testimony. Id. at 49-53. On appeal, the defendant argued that, because his identity was at issue,
the officer’s testimony invaded the province of the jury. Id. at 48. This Court disagreed,
explaining that the testimony was “rationally based on [the officer’s] perception” of the video
because he had watched the video multiple times and used it to produce the still images. Id. at
50-51. Further, this Court held that the officer’s testimony was “intended to provide a clearer
understanding” of whether the suspects had visited the scene before the crime, noting that the
original video was approximately six hours long and that the officer reached his conclusions only
after scrutinizing the entire video several times. Id. at 51-52. Finally, this Court explained that
the testimony did not invade the province of the jury because the officer did not identify a
suspect in the video as the defendant. Id. at 53. Rather, he merely opined that the individuals
seen in a video of the crime were the same individuals seen in the still photographs he created
from earlier surveillance footage. Id.

         Conversely, in Perkins, this Court held that the trial court’s decision to allow an officer’s
opinion testimony was an abuse of discretion. Perkins, 314 Mich App at 160. Unlike in Fomby,
the officer in Perkins affirmatively identified the defendant as the person shown in a surveillance
photograph. Id. at 160-161. This Court, quoting Fomby, 300 Mich App at 52, noted that “ ‘the
issue of whether the defendant in the courtroom was the person pictured in a surveillance photo
[is] a determination properly left to the jury,’ ” and that “[t]here was nothing about the images
(i.e., poor quality of the images, defendant wearing a disguise) that necessitated [the officer’s]
opinion.” Perkins, 314 Mich App at 161-162 (first alteration in original). Accordingly, the
identification by the officer “invaded the province of the jury.” Id. at 161. However, because
evidence of the defendant’s guilt was “overwhelming” and his identity was not in dispute, the
error was “ultimately of no consequence.” Id. at 162-163.

                                                 -2-
        Jackson investigated the home invasion and testified that he watched the surveillance
footage many times. During Jackson’s direct examination, the prosecutor played surveillance
clips for the jury, and the following exchange occurred:

              Q. What does this clip show?

               A. I am seeing two individuals, the same ones we saw earlier in the red
       shirt and the black shirt, coming out from the tree line. Looks like the trunk of the
       Malibu from what I can see was open. And retrieving items from the tree line and
       putting them in the vehicle.

              Q. So they are going from the tree line to the trunk?

              A. That is what I see, yes.

                                                  * * *

              Q. And what do they appear to be doing?

               A. Taking items and picking them up off the ground in what would appear
       to be the tree line and it appears to me that they are putting them, looks like the
       person in the black is putting them in the back of the car. The back seat. But the
       trunk is still open.

                                                  * * *

               Q. . . . [I]s this individual in the red shirt that Officer MacDonald
       identified as Joseph Gornto?

              A. Yes.

              Q. Does he appear to have an object [in] his hand?

              A. Yes.

              Q. What is it?

               A. Well, in his left hand it appears like a large water bottle and in his right
       hand it appears to be a cigarette.

        First, contrary to Wardell’s suggestion that narrative testimony is precluded, there is
nothing in the Michigan rules of evidence prohibiting it. People v Wilson, 119 Mich App 606,
617; 326 NW2d 576 (1982); see also MRE 611(a) (allowing the court to exercise reasonable
control over the mode of interrogating witnesses). Second, the facts of this case more closely
resemble the permissible testimony in Fomby than the inadmissible testimony in Perkins. Like
the testimony of the officer in Fomby, Jackson’s testimony was rationally based on his
familiarity with the video surveillance because he testified that he had observed the video many
times. Fomby, 300 Mich App at 50-51. Further, the surveillance cameras were motion-activated

                                                -3-
and the video cut in and out because the suspect vehicle was parked “right on the edge of where
the sensor stops.” Based on the choppiness of the footage, narration was helpful in providing to
the jury a clearer understanding about what it was viewing. Id. at 51-52. Importantly, like
Fomby and unlike Perkins, Jackson did not identify any of the suspects on the video as being
Wardell; he only agreed that Gornto was the individual that another officer had identified. The
testimony did not invade the province of the jury because the jury was able to reach its own
conclusions as to whether Wardell was the other suspect seen in the video. Perkins, 314 Mich
App at 160.

         Next, Wardell argues that he should be granted a new trial because MacDonald
“essentially identified” him as Gornto’s “partner in crime.” As part of the investigation,
MacDonald obtained surveillance footage and created still photographs from it. MacDonald also
testified that before his investigation he was familiar with Wardell and had met him on two prior
occasions. The following exchange between the prosecutor and MacDonald transpired during
his direct examination:

              Q. Now, going back to the video that you viewed, the two suspects near
       the gray Malibu, the individual in the black shirt, did he appear to match—or how
       would you compare his physical description to the defendant’s?

             A. Exact to the physical description and appearance that I knew to be . . .
       Wardell . . . .

              Q. Okay. Going back to this particular exhibit, [a photograph extracted
       from the surveillance video], after you reviewed all the video or as you reviewed
       the video, did it appear that the subject in the black shirt whose appearance
       appeared to be the same as . . . Wardell . . . , did he ever come closer to the
       camera?

              A. No.

              Q. So this is the best picture we have?

              A. Yes.

              Q. And are you able to see his face in that photograph?

              A. No.

               Q. Is it fair to say that you’re unable to make an identification of his face
       using the photograph or the video?

              A. Yes, correct.

              Q. Okay. But generally the appearance matches the physical size and
       shape as well as hair style?

              A. Yes.

                                                -4-
Directly after this exchange, MacDonald also testified that he knew Wardell to be Gornto’s
uncle.

        Like Jackson’s testimony, MacDonald’s testimony was properly admitted as lay opinion
testimony pursuant to MRE 701. The testimony was rationally based on his perception because
MacDonald watched the surveillance footage and isolated frames from it to create photographs,
and it was on this basis that he provided his opinion regarding the appearance of the suspects.
See Fomby, 300 Mich App at 50-51. Next, as in Fomby, based on the sporadic nature of the
surveillance video, it can be inferred that his testimony helped the jury to better understand the
relevance of the video evidence. Id. at 51-52. Above all, MacDonald’s testimony did not invade
the province of the jury because he did not identify the suspect in the black shirt as Wardell. See
id. at 53. Although MacDonald did indicate that the unidentified suspect had the same physical
characteristics as Wardell, he also unequivocally agreed that he could not identify the suspect
wearing black. The video was not shown during MacDonald’s testimony. When the video was
played later, the jury had the opportunity to determine of its own accord whether Wardell was an
“exact” match to the unknown suspect in the video. Accordingly, MacDonald’s testimony
constituted permissible lay opinion and Wardell is unable to show that its admission constituted
plain error affecting his substantial rights. Coy, 258 Mich App at 12.

        Wardell also argues that he was denied the effective assistance of counsel because his
trial counsel failed to object to MacDonald’s testimony. However, for the reasons stated above,
MacDonald’s testimony was permissible lay opinion that did not invade the province of the jury.
Fomby, 300 Mich App at 53. “Failing to advance a meritless argument or raise a futile objection
does not constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich App 192,
201; 793 NW2d 120 (2010). Moreover, in order to establish ineffective assistance of counsel, a
defendant must show “that ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’ ” People v
Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012), quoting Strickland v Washington, 466 US
668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). In this case, Wardell’s DNA was found at the
scene of the break-in; video surveillance footage from a nearby business showed Wardell’s
nephew and a suspect matching Wardell’s description loading items into a vehicle owned by
Wardell’s mother; and several items stolen from the victims’ home were found in Wardell’s
home and yard. In light of the overwhelming evidence of Wardell’s guilt, he cannot establish
prejudice resulting from counsel’s alleged error. See Vaughn, 491 Mich at 669; Perkins, 314
Mich App at 162-163.

                III. ADMISSION OF UNFAIRLY PREJUDICIAL EVIDENCE

        Wardell argues that a recording of a jail visit between himself and his mother was
irrelevant and unfairly prejudicial and should have been excluded. We disagree.

       We preliminarily note that this issue was waived for appellate review. When asked if he
had any objection to the introduction of the recording, Wardell’s trial counsel stated that he did
not. Waiver is “the intentional relinquishment or abandonment of a known right.” People v
Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) (quotation marks and citations omitted). A
defendant who affirmatively approves of an issue before the trial court may not later raise that
issue on appeal. People v Jackson (On Reconsideration), 313 Mich App 409, 420; 884 NW2d

                                                -5-
297 (2015). However, because Wardell raises a related ineffective assistance of counsel claim
predicated on defense counsel’s failure to object to admission of the recording, we will consider
the merits of his argument for that purpose.

        We discern no error from the admission of the jailhouse recording. All relevant evidence
is admissible unless it is otherwise prohibited by the rules of evidence or other law. MRE 402.
Irrelevant evidence is inadmissible. Id. Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” MRE 401. However, evidence, even if
relevant, “may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice . . . .” MRE 403.

       The content of the tape itself was not recorded by the court reporter, but Jackson
described the content of the tape during his testimony:

               Q. And just to give the jury . . . a heads up, what should they be listening
       for?

             A. Mr. Wardell and his mom were having a conversation about the
       upcoming jury trial. And Mr. Wardell’s opinion on how the trial is going to go.

               [Tape is played for jury.]

               Q. I don’t know if the jury was able to hear that as clearly, but in the jail
       visit recording that I just played did you hear Carl Wardell indicate something
       about believing he would be found guilty at trial?

               A. Yes.

        Wardell first argues that the recording was irrelevant. To be relevant, evidence must be
both material and probative. People v Mills, 450 Mich 61, 67; 537 NW2d 909 (1995), mod on
other grounds 450 Mich 1212 (1995). Evidence is material if it is “related to any fact that is of
consequence to the action.” Id. (quotation marks and citation omitted). “[A]ll elements of a
criminal offense are ‘in issue’ when a defendant enters a plea of not guilty.” Id. at 69 (emphasis
omitted). “However, materiality does not mean that the evidence must be directed at an element
of a crime or an applicable defense.” Id. at 67. Evidence is probative if it has any “tendency to
make the existence of any fact that is of consequence” more or less probable. Id. at 68.

        Wardell asserted that he was not a part of the crime and had no connection to it.
However, he made statements to his mother that he believed he would be found guilty at trial.
His guilt or innocence is clearly a fact of consequence. The probative value of the statement may
not be overwhelming, but evidence need only have “any tendency” to make a fact more or less
true to be probative. Id. Conflicting statements are relevant because they “tend to show a
consciousness of guilt . . . .” People v Unger, 278 Mich App 210, 225-226; 749 NW2d 272
(2008) (quotation marks and citation omitted). Although we acknowledge that Wardell’s
statement could be viewed as expressing a lack of faith in the criminal justice system, his belief
that he would be convicted can also be seen as conflicting with his assertions that he did not
commit the crime, and does have at least some bearing on his guilt or innocence. As the trier of

                                                -6-
fact, the jury was free to draw an inference about Wardell’s guilt or innocence or his credibility
from the recording, or free not to draw any inference at all. People v Hardiman, 466 Mich 417,
428; 646 NW2d 158 (2002).

          Wardell next argues that even if the evidence was marginally probative, it was unfairly
prejudicial under MRE 403. Relevant evidence may be excluded if the danger of unfair
prejudice from its introduction substantially outweighs its probative value. MRE 403. “In this
context, prejudice means more than simply damage to the opponent’s cause” because “[a] party’s
case is always damaged by evidence that the facts are contrary to his contentions, but that cannot
be grounds for exclusion.” People v Vasher, 449 Mich 494, 501; 537 NW2d 168 (1995).
“Unfair prejudice may exist where there is a danger that the evidence will be given undue or
preemptive weight by the jury . . . .” People v Blackston, 481 Mich 451, 462; 751 NW2d 408
(2008). Notably, “[MRE] 403 determinations are best left to a contemporaneous assessment of
the presentation, credibility, and effect of the testimony by the trial judge.” Id. (quotation marks
and citation omitted). Wardell argues that the jury likely interpreted the recording as an
admission of guilt, but fails to explain how this constitutes unfair prejudice. “It is for the trier of
fact . . . to determine what inferences may be fairly drawn from the evidence and to determine
the weight to be accorded those inferences.” Hardiman, 466 Mich at 428.

        Even if we were to conclude that the recording was improperly admitted, Wardell’s
cursory argument that counsel rendered ineffective assistance in this regard lacks merit because
he cannot establish the second requirement for such a claim, i.e., that the result of the
proceedings would have been different but for counsel’s failure to object. Vaughn, 491 Mich at
669. The recording was short—only one minute—and was not the focus of the prosecution’s
case-in-chief. Therefore, any prejudicial effect was likely minimal. More importantly, it is
unlikely that the short recording was outcome-determinative in light of the other evidence
presented at trial. Wardell’s DNA was found in the victims’ home, their possessions were found
in his bedroom, surveillance footage showed a man who closely resembled Wardell and his
nephew was identified as the other suspect, and Wardell had wavering explanations for his
whereabouts on the day of a crime. Accordingly, in light of the overwhelming evidence of
Wardell’s guilt, he simply cannot establish prejudice stemming from this alleged error.

                                       IV. JUDICIAL BIAS

        Wardell contends that a question posed by the trial court pierced the veil of judicial
impartiality. “[W]hether judicial misconduct denied defendant a fair trial is a question of
constitutional law that this Court reviews de novo.” People v Stevens, 498 Mich 162, 168; 869
NW2d 233 (2015). However, we review an unpreserved claim of judicial bias for plain error
affecting Wardell’s substantial rights. People v Jackson, 292 Mich App 583, 597; 808 NW2d
541 (2011).




                                                 -7-
         Due process guarantees that a criminal defendant receive a fair trial. Const 1963, art 1, §
17; US Const, Am XIV. “A trial judge’s conduct deprives a party of a fair trial if [it] pierces the
veil of judicial impartiality.” Stevens, 498 Mich at 170. The veil of judicial impartiality is
pierced when, “considering the totality of the circumstances, it is reasonably likely that the
judge’s conduct improperly influenced the jury by creating the appearance of advocacy or
partiality against a party.” Id. at 171. In reviewing claims of judicial bias, the Court should
conduct a “fact-specific analysis,” “consider[ing] the cumulative effect” of any errors. Id. at
171-172. Our Supreme Court has explained:

       In evaluating the totality of the circumstances, the reviewing court should inquire
       into a variety of factors, including the nature of the judicial conduct, the tone and
       demeanor of the trial judge, the scope of the judicial conduct in the context of the
       length and complexity of the trial and issues therein, the extent to which the
       judge’s conduct was directed at one side more than the other, and the presence of
       any curative instructions. [Id. at 172.]

This list, however, is nonexhaustive, and this Court is free to consider any additional relevant
factors. Id.

        Wardell argues that a question posed by the trial judge at the close of his testimony
demonstrated judicial bias that deprived him of a fair trial. Testifying on his own behalf,
Wardell asserted that he was not involved in the break-in. When asked how a soda can with his
DNA came to be at the scene, Wardell testified that he regularly left partially finished cans of
Sprite around his home, where Gornto also resided, seemingly suggesting that Gornto may have
placed the can at the scene. Perhaps in an effort to explain why Gornto’s DNA was not on the
can as well, Wardell further indicated that Gornto does not place his lips on soda cans when he
drinks from them. At the conclusion of his testimony, the following exchange occurred:

              The Court: . . . I just have one question. May I see the picture of Mr.
       Gornto at the scene of this incident?

                                                  * * *

              The Court: Showing you People’s Exhibit 101. The water bottle that Mr.
       Gornto has in his hand—

               [Wardell]: Okay.

               The Court: Not a Sprite can.

               [Wardell]: Okay.

             The Court: Okay. Thank you. Does the jury have any questions? You
       may be excused.

         In reviewing claims of judicial bias, the first factor we examine is the “nature or type” of
the judicial conduct. Id. at 172. “Judicial misconduct may come in myriad forms, including
belittling of counsel, inappropriate questioning of witnesses, providing improper strategic advice

                                                -8-
to a particular side, [and] biased commentary in front of the jury . . . .” Id. at 172-173. “[I]t is
appropriate for judges to question witnesses to produce fuller and more exact testimony or elicit
additional relevant information.” Id. at 173. However, the question must conform to the
Michigan Code of Judicial Conduct and avoid undue interference, impatience, and a severe
attitude; additionally, “[i]t is inappropriate for a judge to exhibit disbelief of a witness,
intentionally or unintentionally.” Id. at 174.

        This factor does not weigh in favor of a conclusion that the trial court exhibited bias. The
nature of the judicial conduct was a question, which is allowable, and it came at the appropriate
time, at the end of Wardell’s testimony, not as an interruption. Second, although it is
inappropriate for a judge to exhibit disbelief of a witness, with the heavy presumption of judicial
impartiality in mind, Jackson, 292 Mich at 598, a fair interpretation of the judge’s question is
that it was for clarification purposes, and it did not display an overly obvious incredulity.
Stevens, 498 Mich at 174.

        The second factor is the “tone and demeanor” of the trial judge. Id. Jurors “are very
prone to follow the slightest indication of bias or prejudice upon the part of the trial judge”
because of their reliance on the judge for guidance and instruction. Id. (quotation marks and
citation omitted). To ensure that the judge exhibits impartiality, a judge should “be mindful of
the substance of his or her words” and “the manner in which they are said.” Id. at 175. Notably,
“appellate courts typically do not have the benefit of viewing a trial judge’s tone and demeanor
first hand.” Id. at 176. However, hostility, bias, or prejudice can sometimes be gleaned just
from the nature of the words employed by the judge. Id.

        With respect to this factor, an improper tone or demeanor is not readily detectable simply
from the words used by the judge in the quoted exchange. It does not appear that the comments
rose to the level of improperly expressing incredulity, bias, or hostility. Id. Furthermore, even if
viewed as critical of Wardell’s theory of the case, a critical or hostile comment alone does not
support a finding of bias or partiality. People v Willis, 322 Mich App 579, 590; __ NW2d __
(2018).

        The third factor is “the scope of judicial intervention within the context of the length and
complexity of the trial . . . .” Stevens, 498 Mich at 176. Long trials or trials with complex issues
may give rise to greater judicial intervention, while trials that are shorter and more
straightforward generally do not. Id. When a witness’s testimony is “convoluted, technical,
scientific, or otherwise difficult for a jury to understand,” judicial questioning is more likely to
be appropriate to provide clarification for the jury. Id.

        Here, the trial itself was relatively short—less than three days—and the questioning was
also very brief. The trial court did not interrupt Wardell and the question came at the end of
Wardell’s cross-examination. Further, Wardell’s explanation for how his DNA made its way
into the victims’ home can fairly be characterized as “convoluted,” so a question clarifying a
piece of evidence related to the theory was not uncalled for. Viewed in context, it is unlikely that
such a brief comment pierced the veil of judicial impartiality. Id. at 172.




                                                -9-
       The fourth factor encompasses “the extent to which a judge’s comments or questions
were directed at one side more than the other.” Id. at 176-177. This factor is viewed “in
conjunction” with the third factor and refers to “imbalance[s] . . . with respect to either the
frequency of the intervention or the manner of the conduct.” Id. at 177. This factor does not
support a finding of judicial partiality because the single inquiry cannot be reasonably
characterized as excessively imbalanced against Wardell or in favor of the prosecution. Id. at
176-177.

        Finally, the fifth factor relates to the “presence or absence of a curative instruction . . . .”
Id. at 177. The model criminal jury instructions “emphasize that a judge’s comments, rulings,
and questions do not constitute evidence and that the jury should not attempt to discern the
judge’s personal opinion while considering the case.” Id. The trial court can also give the jury
further curative instructions during the course of the proceedings if any conduct could give rise
to the appearance of bias. Id. “It is well established that jurors are presumed to follow their
instructions,” Ericksen, 288 Mich App at 197 (quotation marks and citation omitted), but “in
some instances judicial conduct may so overstep its bounds that no instruction can erase the
appearance of partiality,” Stevens, 498 Mich at 177-178.

        At both the beginning and the end of trial, the trial judge instructed the jury that his
comments were not evidence, that judicial statements do not reflect personal opinion, and that
the jury was tasked with determining Wardell’s guilt based only on the evidence. Wardell fails
to explain how an additional curative instruction would have made a difference, particularly
when the challenged conduct was immediately followed by closing arguments and the court’s
final instructions and any appearance of bias was slight at worst. Therefore, this factor does not
support the conclusion that the veil of judicial impartiality was pierced. Id. at 174.

       Considering that none of the factors favors Wardell’s position that the veil of judicial
impartiality was pierced, Wardell has failed to demonstrate a reasonable likelihood that the trial
judge’s conduct during trial improperly influenced the jury by creating the appearance of
advocacy or partiality against Wardell. Id. at 172. Accordingly, Wardell has failed to
demonstrate plain error affecting his substantial rights. Jackson, 292 Mich App at 597.

                              V. OFFENSE VARIABLE SCORING

       Finally, Wardell contends that he is entitled to resentencing because the trial court erred
when it assessed 10 points for offense variable (OV) 4 (psychological injury to victim), MCL
777.34.1 However, Wardell’s counsel waived this argument by explicitly and affirmatively
agreeing with an assessment of 10 points for OV 4 at sentencing. See Carter, 462 Mich at 215;
Jackson (On Reconsideration), 313 Mich App at 420. This waiver extinguished any error arising


1
  We acknowledge that Wardell preserved this issue by filing a motion to remand on the basis of
the alleged scoring error. See People v Clark, 315 Mich App 219, 223-224; 888 NW2d 309
(2016). The motion was denied for failure to persuade the Court of the necessity for remand.
People v Wardell, unpublished order of the Court of Appeals, entered February 28, 2018 (Docket
No. 339569).


                                                 -10-
from the scoring of OV 4. Accordingly, we decline to address the merits of Wardell’s argument
concerning this issue.

       Affirmed.



                                                         /s/ Amy Ronayne Krause
                                                         /s/ Elizabeth L. Gleicher
                                                         /s/ Anica Letica




                                            -11-
