                     STATE OF MICHIGAN

                      COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,         UNPUBLISHED
                                         January 19, 2016
          Plaintiff-Appellee,

v                                        No. 322319
                                         Washtenaw Circuit Court
DERRELL DIONTAE-VONCHAI EVANS, a/k/a     LC No. 13-000930-FH
DERRELL DENO EVANS, a/k/a DARRELL
DEVONTE EVANS,

          Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

          Plaintiff-Appellee,

v                                        No. 322320
                                         Washtenaw Circuit Court
DERRELL DIONTAE-VONCHAI EVANS, a/k/a     LC No. 13-001361-FH
DERRELL DENO EVANS, a/k/a DARRELL
DEVONTE EVANS,

          Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

          Plaintiff-Appellee,

v                                        No. 322321
                                         Washtenaw Circuit Court
DERRELL DIONTAE-VONCHAI EVANS, a/k/a     LC No. 13-001384-FH
DERRELL DENO EVANS, a/k/a DARRELL
DEVONTE EVANS,

          Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

                                   -1-
               Plaintiff-Appellee,

v                                                                  No. 322322
                                                                   Washtenaw Circuit Court
DERRELL DIONTAE-VONCHAI EVANS, a/k/a                               LC No. 13-001472-FH
DERRELL DENO EVANS, a/k/a DARRELL
DEVONTE EVANS,

               Defendant-Appellant.


Before: SHAPIRO, P.J., and O’CONNELL and BORRELLO, JJ.

PER CURIAM.

       In these consolidated appeals, defendant, Derrell Diontae-Vonchai Evans, appeals as of
right his convictions, following two jury trials, of one count of fourth-degree arson, MCL
750.75, and three counts of witness tampering, MCL 750.122. The trial court sentenced
defendant to serve concurrent terms of 84 months’ to 20 years’ imprisonment for his arson
conviction (Docket No. 322319), 48 months’ to 180 months’ imprisonment for his first witness
tampering conviction (Docket No. 322320), and 100 months’ to 15 years’ imprisonment for his
second witness tampering conviction (Docket No. 322322), and a consecutive term of 76
months’ to 20 years’ imprisonment for his third witness tampering conviction (Docket No.
322321). We affirm defendant’s convictions but remand for resentencing.

                                I. FACTUAL BACKGROUND

        Defendant’s offenses were tried in two trials. The first trial involved arson and
associated witness tampering. According to Shontelle Frey, she had a contentious dating
relationship with defendant that ended in May 2013. Defendant threatened to blow up her car,
and Frey’s car exploded on May 28, 2014. Investigators located some of defendant’s belongings
at the scene. Frey testified that after a previous argument with defendant, he told her that she
was “not going nowhere” and she later discovered that her car’s tires were slashed. Defendant’s
second girlfriend, Shavonne Perry, testified that when she broke up with defendant, he punched
holes in the walls of her apartment. The trial court admitted a phone call from jail in which
defendant admonished Perry for cooperating with the police and instructed her to recant her
testimony.

       Washtenaw County Sheriff Deputy Dan Buffa testified that he found broken headphones
on the street near the vehicle during his investigation. Fire marshal Vic Chevrette testified that
because the headphones were burned, it was likely that whoever was close to the vehicle had
been ignited. On June 1, 2014, defendant texted someone that he was “got burnt earlier.”
Defendant testified that he used the phrase as slang for contracting a sexually transmitted
disease.



                                               -2-
         Frey testified that defendant called her in June and threatened to blow up her house and
kill her, her son, her mother. Defendant called Frey from jail a second time to ask if she was
going to court. Frey testified that she received a letter from Ron White, the father of her son,
which was in defendant’s handwriting. White testified that Kelvin Jones asked him to send the
letter to Frey. The letter stated in pertinent part, “If you love your baby mama, you better get
that b****. If she come to court on me on the 17th, I’m going to take that year they trying to
give me, and when I come home, I’m killing that b****.”

        Defendant’s second trial involved an assault and associated witness tampering.
According to Freddie Acklin, on April 4, 2013, he was a trained auto mechanic. When Acklin’s
friend Marchal Seuell arrived at Acklin’s shop so that Acklin could fix the brakes of his car,
defendant was with him. Acklin’s puppy was in his shop. Defendant asked to buy the puppy,
but Acklin refused. Acklin agreed to fix Seuell’s brakes and accept part of the payment later.
However, after Acklin fixed the car, defendant struck Acklin in the mouth with the gun and said
that they were not paying him and were taking his puppy. The men left with Acklin’s puppy.
Washtenaw County Sheriff’s Deputy Joseph Montgomery testified that defendant and the puppy
were both in Acklin’s car when police stopped it. Officers returned Acklin’s puppy, but his teeth
were loosened in the assault and he required extensive dental work.

        Acklin testified that while defendant was on bond, defendant confronted him at a store
where he worked. Acklin fled and called the police. Defendant approached him a second time at
a gas station and offered him $400 “to not come to court.” After that, different men approached
him several times and offered him money if he refused to testify against defendant. Detective
Craig Raisanen testified that during several phone calls defendant made from jail, he discussed
having someone contact “Fred” and convince him not to come to court. The phone calls were
admitted into evidence.

       The jury found defendant guilty as previously described. The jury also acquitted
defendant of an additional count of witness tampering in the assault case. Defendant now
appeals, but he does not appeal his convictions of armed robbery, felonious assault, and weapons
offenses from the assault case.

                                  II. EVIDENTIARY ISSUES

       Defendant raises several issues regarding the evidence admitted in his trials, both through
counsel and through his pro se brief filed pursuant to Michigan Supreme Court Order 2004-6,
Standard 4. This Court reviews for an abuse of discretion the trial court’s decisions regarding
the admission of evidence and review de novo the preliminary questions of law surrounding that
decision. People v Dobek, 274 Mich App 58, 84-85; 732 NW2d 546 (2007). The trial court
abuses its discretion when its outcome falls outside the principled ranges of outcomes. People v
Reese, 491 Mich 127, 139; 815 NW2d 85 (2012).

                                A. OTHER ACTS EVIDENCE

       First, defendant contends that the trial court improperly admitted evidence that he
punched a hole in Perry’s wall and previously damaged Frey’s car because this evidence was not
relevant and was more prejudicial than probative.

                                               -3-
        Generally, MRE 404(b)(1) prohibits a party from introducing evidence of another party’s
other crimes, wrongs, or acts to prove that person’s propensity to engage in a type of action.
However, MCL 768.27b(1) provides that “in a criminal action in which the defendant is accused
of an offense involving domestic violence, evidence of a defendant’s commission of other acts of
domestic violence is admissible for any purposes for which it is relevant if it is not otherwise
excluded under [MRE 403].” The intent of this statute is to provide the jury with a complete
picture of the defendant’s history to help it determine the likelihood that the defendant
committed a crime. People v Cameron, 291 Mich App 599, 609-610; 806 NW2d 371 (2011).

       This statute “permits the admission of evidence that MRE 404(b) precludes,” but the trial
court must still weigh the probative value and prejudicial effect of the evidence under MRE 403.
See People v Watkins, 491 Mich 450, 469-470, 486; 818 NW2d 296 (2012) (discussing the
analogous provision MCL 768.27a). Propensity evidence weighs in favor of the evidence’s
probative value, not against it. Id. at 487. Whether evidence is unduly prejudicial depends on

        (1) the dissimilarity between the other acts and the charged crime, (2) the
        temporal proximity of the other acts to the charged crime, (3) the infrequency of
        the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the
        evidence supporting the occurrence of the other acts, and (6) the lack of need for
        evidence beyond the complainant’s and the defendant’s testimony. [Id. at 487-
        488.]

        In this case, the circumstances of each instance were similar. Defendant was in a dating
relationship with each of the women involved in the other acts. Before each instance, defendant
argued with a girlfriend on the phone and subsequently destroyed a piece of the girlfriend’s
property. The evidence showed that defendant had a pattern of conduct that involved physically
intimidating women who opposed him in a dating relationship by destroying their property. We
conclude that this was permissible evidence of defendant’s propensity to act violently against
women who opposed him in romantic relationships. See Cameron, 291 Mich App at 612.

         In his pro se brief, defendant contends that the admission of this evidence constituted
prosecutorial misconduct. We review unpreserved issues of prosecutorial misconduct for plain
error affecting the defendant’s substantial rights. People v Pfaffle, 246 Mich App 282, 288; 632
NW2d 162 (2001); People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). An error is
plain if it is clear or obvious, and the error affected the defendant’s substantial rights if it affected
the outcome of the lower court proceedings. Id. However, for evidentiary issues framed as
prosecutorial misconduct, we review “whether the prosecutor elicited the testimony in good
faith.” Dobek, 274 Mich App at 70-71.

        In this case, as previously discussed, the evidence was permissible other acts evidence.
The prosecutor may permissibly elicit admissible evidence. We conclude that the prosecution
did not commit misconduct by eliciting the other acts evidence in this case.

        Defendant additionally contends that trial counsel was ineffective for failing to challenge
this evidence. A defendant must move the trial court for a new trial or evidentiary hearing to
preserve a claim that his or her counsel was ineffective. People v Ginther, 390 Mich 436, 443;
212 NW2d 922 (1973). When the trial court has not conducted a hearing, our review is limited

                                                  -4-
to mistakes apparent from the record. People v Mack, 265 Mich App 122, 125; 695 NW2d 342
(2005). In this case, the record simply fails to support defendant’s assertion that counsel did not
challenge the evidence—trial counsel did in fact challenge the evidence in a pretrial motion, but
the court overruled counsel’s objection.

                                  B. OPINION TESTIMONY

       In his pro se brief, defendant contends that Detective Raisanen’s opinion testimony
regarding his eyebrows and arm scars was improper. We disagree.

       Lay witnesses may offer opinion testimony if it is “rationally based on the perception of
the witness and . . . helpful to a clear understanding of the witness’ testimony or the
determination of a fact at issue.” MRE 701. A police officer’s opinion testimony is admissible
as a lay opinion if the officer bases his or her opinion on direct perceptions, rather than on a
technical or scientific analysis. People v Daniel, 207 Mich App 47, 57; 523 NW2d 830 (1994).

        In this case, Detective Raisanen testified that he had reviewed photographs of defendant
that he believed showed defendant with thinner eyebrows and arm scars that were not present in
his previous photographs. Detective Raisanen testified on the basis of his observation of the
photographs rather than on the basis of a technical or scientific analysis. Additionally, it was
helpful to the jury’s determination of a fact in issue because Chevrette testified that the person
who committed the arson was likely burned during it, and a change in defendant’s physical
appearance supported an inference that he was the arsonist.

       We conclude that this opinion testimony was admissible. We also conclude that, because
the evidence was admissible, trial counsel was not ineffective for failing to challenge it. See
People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (counsel need not make futile
challenges).

       Next, defendant contends that Detective Raisanen’s statements regarding the recorded
telephone calls were improper opinion testimony that invaded the province of the jury. Again,
defendant frames this evidentiary issue was one of prosecutorial misconduct. We conclude that
the prosecutor did not act in bad faith regarding this evidence.

        The prosecutor asked Detective Raisanen about the contents of the recorded telephone
calls that defendant made from jail. Raisanen testified that certain aspects of the phone calls
gave him “some pause.” Detective Raisanen then testified about how he acted based on what he
thought he heard. Detective Raisanen’s testimony was based on his own perceptions and
provided the context for his actions. We conclude that this testimony was permissible lay
opinion testimony, and the prosecutor did not commit misconduct by seeking to elicit it.

                             C. EVIDENCE OF OTHER CRIMES

       In his pro se brief, defendant contends that admission of testimony related to the later
substantive trials in his witness tampering cases constituted prosecutorial misconduct. Again,
defendant frames an evidentiary issue as one of prosecutorial misconduct.



                                                -5-
       Evidence may be relevant even when it does not pertain to an element of an offense, as
long as it pertains to a matter in controversy. People v McGhee, 268 Mich App 600, 637; 709
NW2d 595 (2005). The res gestae of a crime are the facts and circumstances surrounding the
commission of the crime. People v Delgado, 404 Mich 76, 83; 273 NW2d 395 (1978).
“Evidence of other criminal acts is admissible when so blended or connected with the crime of
which defendant is accused that proof of one incidentally involves the other or explains the
circumstances of the crime.” Id.

        In this case, evidence of the crimes underlying witness tampering charges—the crimes
for which defendant was attempting to convince the witnesses not to testify—did not directly
pertain to the elements of witness tampering. However, the underlying crimes were among the
circumstances that led to the witness tampering charges and explained the later charges. We
conclude that the prosecution did not commit misconduct by admitting this res gestae evidence in
good faith.

       Defendant also contends that he was deprived of a fair trial when the prosecution elicited
from Detective Raisanen during his assault trial that he became acquainted with defendant during
an arson investigation. During the assault case, the following exchange occurred between the
prosecutor and Detective Raisanen:

              Q. And, what is the basis—what is the original crime that took place that
       you were—that you were investigating this witness intimidation on? What is the
       underlying crime?

              A. Well, I became—I became involved in this investigation after dealing
       with an arson investigation involving [Evans].

              Q. And, so what about the—the—background that you’re here to testify
       on today regarding—is that regarding an armed robbery or the intimidation that
       took place in the course of the armed robbery?

               A. That’s part of the overall investigation, yes. When I was investigating
       the arson that [Evans] was believed—

               Defense counsel. You Honor, I’m going to object. He’s—he’s testifying
       to a case that is currently going to be tried. That’s—you know I don’t know as he
       can go into what results of his investigation in an arson complaint are.

               Prosecutor. And, certainly, we’re going to ask the detective that, Your
       Honor. Just—he is the officer in charge overall and so—of that portion of the
       case and so we’re—I’m just getting—getting context to his testimony as to where
       it’s going to come from. We can proceed forward.

              The Court. All right. Thank you.

              Prosecutor. Thank you.



                                               -6-
               Q. Detective, at some point did you start an investigation of a witness
       interference or bribery on the armed robbery case that happened out of Ypsilanti
       Police Department.

               A. Yes, I did.

       In this case, Detective Raisanen’s answer regarding the arson investigation was not
responsive to the prosecutor’s question regarding the underlying crime of the witness
intimidation. Instead, the prosecutor actively sought to redirect Detective Raisanen to the armed
robbery case. We conclude that the prosecutor sought in good faith to admit relevant evidence,
and her actions did not constitute misconduct. Additionally, we conclude that trial counsel’s
representation did not fall below an objective standard of reasonableness when counsel
successfully challenged the statement. See People v Vaughn, 491 Mich 642, 670; 821 NW2d
288 (2012).

         Defendant contends that his counsel’s statement that the arson case “is currently going to
be tried” alone warrants reversal. We disagree. Reversal is only warranted if this reference
affected the outcome of defendant’s proceedings. See People v Garza, 246 Mich App 251, 255;
631 NW2d 764 (2001). Even if the jury inferred from this statement that defendant was also
charged in an arson case, rather than that he was simply a witness or suspect in the case, we
conclude that any character inference the jury could have drawn from that fact was minimal.
The reference was very brief, defense counsel noted that the case had not yet been tried, and the
jury was repeatedly instructed throughout the trial that the criminally accused are innocent until
proven guilty. We also note that the jury acquitted defendant of an additional witness
intimidating claim and found defendant guilty only of the lesser offense of simple assault, not the
greater offense of felonious assault, which tends to indicate that the jury weighed specific
evidence in the case instead of simply convicting defendant on the belief that he was a bad
person. We are not convinced that the brief reference to the arson case deprived defendant of a
fair trial or prejudiced the jury against him.

                            III. PROSECUTORIAL MISCONDUCT

      In his pro se brief, defendant contends that the prosecution committed other instances of
misconduct. Specifically, defendant contends that the prosecutor made improper closing
arguments.

        A prosecutor can deny a defendant’s right to a fair trial by making improper remarks that
infringe on a defendant’s constitutional rights or by making remarks that “so infect[] the trial
with unfairness as to make the resulting conviction a denial of due process.” Donnelly v
DeChristoforo, 416 US 637, 643; 94 S Ct 1868; 40 L Ed 2d 431 (1974). We must evaluate
instances of prosecutorial misconduct on a case-by-case basis, reviewing the prosecutor’s
comments in context, and in light of the defendant’s arguments and the evidence presented in the
case. Dobek, 274 Mich App at 64.

       We have reviewed the prosecutor’s closing statements in this case and conclude that the
prosecutor permissibly commented on the evidence. In closing, a prosecutor may argue all the
facts in evidence and all reasonable inferences arising from them, as they relate to the

                                                -7-
prosecution’s theory of the case. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995).
In this case, not only was evidence of defendant’s other acts of domestic violence admissible as
we have previously discussed, but defendant also admitted on the stand that he damaged Perry’s
walls. Similarly, the instances of defendant’s prior actions toward Frey’s car were also facts in
evidence in this case. The prosecutor permissibly argued these facts as they related to her theory
of the case.

       We conclude that defendant’s challenge to the prosecution’s closing statements lack
merit. Further, trial counsel was not ineffective for failing to make a futile challenge to these
permissible arguments. See Ericksen, 288 Mich App at 201.

                           IV. SUFFICIENCY OF THE EVIDENCE

       In his pro se brief, defendant contends that the evidence was insufficient to convict him
of witness intimidation of Frey. We disagree.

        This Court reviews de novo a defendant’s challenge to the sufficiency of the evidence.
People v Cline, 276 Mich App 634, 642, 741 NW2d 563 (2007). We view “the evidence in a
light most favorable to the prosecutor to determine whether any trier of fact could find the
essential elements of the crime were proven beyond a reasonable doubt.” Id. (quotation marks
and citation omitted). We must resolve conflicting evidence in favor of the prosecution, People
v Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997), and we will not resolve questions of
credibility on appeal, People v Avant, 235 Mich App 499, 506; 597 NW2d 864 (1999).

       MCL 750.122(3) prohibits a defendant from using threats or intimidation to “[d]iscourage
or attempt to discourage any individual from . . . testifying at a present or future official
proceeding . . .” or to “[e]ncourage or attempt to encourage any individual to . . . withhold
testimony . . . .” The purpose of this statutory section is to “criminalize the many ways
individuals can prevent or attempt to prevent a witness from appearing and providing truthful
information in some sort of official proceeding . . . .” People v Greene, 255 Mich App 426, 438;
661 NW2d 616 (2003).

        In this case, viewing the evidence in the light most favorable to the prosecution, the
testimony and documentary evidence established that defendant wrote a letter to White, the
father of Frey’s child, in which defendant sought to discourage Frey from testifying by use of
threats. Specifically, defendant asked White to convince Frey not to testify if he loved her
because if she testified, defendant would kill her when he got out of jail. There is no question
that defendant’s letter constituted a threat that encouraged Frey to withhold testimony. While
defendant contends that the letter was not in his handwriting, a rational jury could have believed
Frey’s testimony that the letter was, in fact, in defendant’s handwriting, and we will not
reevaluate Frey’s credibility on appeal.

       We conclude that sufficient evidence supported defendant’s conviction of witness
tampering regarding Frey.

                                       V. SENTENCING



                                               -8-
        Through counsel, defendant next contends that the trial court erroneously scored offense
variable (OV) 10 in his arson-related cases and that he is entitled to a remand for resentencing
under People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015). We agree.

        This Court reviews the sentencing court’s scoring of a sentencing guidelines variable for
clear error. People v Osantowski, 481 Mich 103, 111; 748 NW2d 799 (2008). We review de
novo the proper interpretation and application of the sentencing guidelines. People v Morson,
471 Mich 248, 255; 685 NW2d 203 (2004).

        The trial court properly assesses 10 points for OV 10 if a defendant exploited a domestic
relationship with the victim. MCL 777.40(1)(b). A “domestic relationship” is “a familial or
cohabitating relationship.” People v Jamison, 292 Mich App 440, 447; 807 NW2d 427 (2011).
However, a former dating relationship is not a domestic relationship. People v Brantley, 296
Mich App 546, 554; 823 NW2d 290 (2012).

        In this case, the trial court assessed 10 points for OV 10 on the basis that defendant and
Frey were in a domestic relationship. However, Frey testified that she had broken up with
defendant before he blew up her car, and there is no indication that Frey resumed the
relationship. We conclude that the trial court erroneously determined that defendant exploited a
domestic relationship for the purposes of OV 10. However, regarding the witness tampering
conviction involving Perry in Docket No. 322321, we conclude that the trial court properly
assessed 10 points under OV 10. A letter indicated that Perry was pregnant with defendant’s
child and, accordingly, there was evidence that Perry and defendant had a familial relationship.

       The prosecution contends that resentencing is not required because defendant’s sentence
was reasonable. We disagree. The trial court explicitly stated its intent to sentence defendant
within the guidelines. A 10-point reduction in defendant’s OV score alters his sentencing grid.
See MCL 777.64 and MCL 777.66. The trial court could not properly exercise its discretion
because it was operating on the erroneous belief that its sentence was within defendant’s
guidelines. See People v Francisco, 474 Mich 82, 88; 711 NW2d 44 (2006). Accordingly, we
conclude that resentencing is required in Docket Nos. 322319 and 322322.

        Regarding Docket Nos. 322320 and 322321, the prosecution concedes that defendant is
entitled to a remand for further proceedings under Lockridge. Accordingly, we remand for
further proceedings pursuant to United States v Crosby, 397 F3d 103 (CA 2, 2005). Lockridge,
498 Mich at 395.

        Finally, in his pro se brief, defendant contends that the trial court erred by ordering
$2,500 restitution in his witness tampering case involving Acklin rather than in his assault case.
This issue is unpreserved, and we review it for plain error.

       In People v McKinley, 496 Mich 410; 852 NW2d 770 (2014), the Michigan Supreme
Court stated that

       [d]epending on the nature and circumstances of the offense, a single act of
       “conduct” may be sufficient to give rise to the offense, or a series of acts—i.e. a
       course of conduct”—may be necessary. For example, a defendant may be
       assessed restitution for a conviction for assault with a deadly weapon for firing a
                                               -9-
       gun at a victim and may be required to pay the victim’s resulting medical bills, or
       a defendant may be assessed restitution for a conviction for armed robbery for
       firing a gun at a victim and taking the victim’s money and be required to pay the
       victim’s medical bills and repay the money taken from the victim. The latter
       example involves a “course of conduct” that gives rise to a conviction, and both
       the defendant’s assault and his theft could result in a restitution award under our
       decision today. [Id. at 420 n 10.]

In this case, the trial court did not clearly err in assessing restitution for Acklin’s injuries in the
witness tampering case. That case involved a course of conduct arising out of Acklin’s assault
because without the assault, defendant had no reason to tamper with Acklin’s testimony. We
conclude that the trial court did not plainly err by ordering restitution for defendant’s witness
tampering conviction involving Acklin.

                                        VI. CONCLUSION

       We affirm defendant’s convictions. In Docket Nos. 322319 and 322322, we remand for
resentencing. In Docket Nos. 322320 and 322321, we remand for the trial court to determine
whether it would have imposed a materially difference sentence under the sentencing procedure
described in Lockridge.1 We do not retain jurisdiction.

                                                               /s/ Douglas B. Shapiro
                                                               /s/ Peter D. O’Connell
                                                               /s/ Stephen L. Borrello




1
  If the trial court determines that it would have imposed the same sentence absent the
unconstitutional constraint on its discretion, it may reaffirm the original sentence. If it
determines that it would not have imposed the same sentence, it may resentence defendant.
Lockridge, 498 Mich at 399.


                                                 -10-
