            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     July 2, 2019
               Plaintiff-Appellee,

v                                                                    No. 339508
                                                                     Calhoun Circuit Court
CHRISTOPHER LYND BARRON,                                             LC No. 2016-002657-FC

               Defendant-Appellant.


Before: TUKEL, P.J., and SERVITTO and RIORDAN, JJ.

PER CURIAM.

        Defendant, Christopher Lynd Barron, appeals by right his jury convictions of armed
robbery, MCL 750.529, and first-degree home invasion, MCL 750.110a(2). The trial court
sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to serve 50 to 100 years
in prison for his conviction of armed robbery and 25 to 60 years in prison for his conviction of
first-degree home invasion. For the reasons explained below, we affirm.

                                        I. BASIC FACTS

       James and Karen Peterson testified that an unknown man forced his way into their home
while armed with what appeared to be a gun, forced James to lay down, repeatedly struck James,
and stole James’s wallet and a bank envelope with cash. James and Karen both testified that the
man was white, had a height of about 5’9” or 5’10”, and had a slender build. They testified that
he wore a two-toned sweatshirt with a hood and that he had on a white or gray ski mask under
his hood. In the Petersons’ neighbor’s driveway, police officers recovered an improvised mask
that had been made from the sleeve of thermal underwear. DNA taken from the improvised
mask matched defendant’s DNA.

                            II. VALIDITY OF ARREST WARRANT

       Defendant first argues that his convictions must be vacated because his arrest warrant
was invalid. As defendant concedes on appeal, he did not preserve this claim of error for
appellate review. Therefore, our review is for plain error affecting defendant’s substantial rights.
People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).


                                                -1-
        In support of his claim, defendant relies on a document in which an officer provided
factually false information to support his request for an arrest warrant. In response to the initial
warrant request, the prosecutor asked for more information, including “how [do] we know the
white sweatshirt was worn by the suspect[?]” The officer responded with a supplemental
narrative, in which he stated that the white sweatshirt is the “makeshift mask described as a
‘thermal sleeve’ ” and was found in a driveway next to where the incident occurred, was in the
same direction that the suspect fled afterward, and the item was found to contain defendant’s
DNA. The officer also volunteered that elsewhere, the police had found two jackets in a nearby
trash container, which matched the description of what the suspect had been wearing. One was a
two-toned jacket, which contained blood of the victim, James, and the other had a cigarette butt
inside the pocket. The narrative noted that the cigarette butt contained DNA that matched that of
defendant. This last statement is the one that defendant takes issue with, and he is correct in that
the statement was factually incorrect; the DNA testing on the cigarette butt showed that there
were two donors, and the Michigan State Police expert concluded that defendant could not have
been one of the donors.

        Although the prosecutor may have relied on this statement in deciding to authorize the
warrant request, it is not clear that the magistrate who issued the warrant ever saw or relied on
that statement. Indeed, the magistrate may have relied solely on the allegations in the complaint.
See MCL 764.1a(2) (describing the bases for finding probable cause to issue a warrant for
arrest). Additionally, even assuming that the request for an arrest warrant contained a false
statement, that fact alone would not warrant relief. As this Court has explained in the context of
a search warrant, a false statement in a warrant application will invalidate the warrant only if the
false statement was necessary to a finding of probable cause. See People v Stumpf, 196 Mich
App 218, 224; 492 NW2d 795 (1992). In the supplement, the officer correctly noted that
defendant’s DNA was found on the mask discovered along the path taken by the robbery suspect
during his flight from the Petersons’ home. That evidence, by itself, was sufficient to connect
defendant to the robbery and home invasion. As such, because defendant cannot show that but
for the factually incorrect statement, there would not have been probable cause to issue the arrest
warrant, his claim necessarily fails. 1



1
  In any event, even if the arrest warrant were invalid, defendant would not be entitled to relief.
A trial court does not lose jurisdiction of an accused as a result of an invalid arrest warrant.
People v Burrill, 391 Mich 124, 133; 214 NW2d 823 (1974); see also Gerstein v Pugh, 420 US
103, 119; 95 S Ct 854; 43 L Ed 2d 54 (1975) (“Nor do we retreat from the established rule that
illegal arrest or detention does not void a subsequent conviction.”). The Burrill Court explained
that “a court’s jurisdiction to try an accused person cannot be challenged on the ground that
physical custody of the accused was obtained in an unlawful manner.” Burrill, 391 Mich at 133.
“ ‘[T]he power of a court to try a person for crime is not impaired by the fact that he has been
brought within the court’s jurisdiction by reason of a “forcible abduction”.’ ” Id., quoting
Frisbie v Collins, 342 US 519, 522; 72 S Ct 509; 96 L Ed 541 (1952). Rather, due process is
satisfied when the accused has been convicted after having been fairly apprised of the charges
against him or her and after having had a fair trial in accord with constitutional safeguards. Id.


                                                -2-
                           III. PROSECUTORIAL MISCONDUCT

       Defendant next argues that the prosecutor committed misconduct by stating in her closing
argument that the only DNA found on the improvised mask belonged to defendant, when in fact
there was also DNA from an unknown donor. Defendant argues that he properly preserved his
claim of prosecutorial misconduct by raising it in his motion for a new trial. However, a
defendant cannot preserve a claim of prosecutorial misconduct premised on a prosecutor’s
comments in a motion for a new trial; he must offer a contemporaneous objection. People v
Abraham, 256 Mich App 265, 274; 662 NW2d 836 (2003). Therefore, this issue is unpreserved.

        The test for claims of prosecutorial misconduct is to determine whether the misconduct
deprived the defendant of a fair and impartial trial. Id. at 272. However, we review unpreserved
issues for plain error affecting the defendant’s substantial rights. Carines, 460 Mich at 763.
Thus, in this context, reversal only is warranted if a curative instruction would have been
inadequate to cure any prejudice. People v Ackerman, 257 Mich App 434, 448; 669 NW2d 818
(2003); see also People v Taylor, 275 Mich App 177, 185; 737 NW2d 790 (2007).

        In this case, the prosecutor arguably mischaracterized the evidence when she stated in
closing that the “only” DNA found on the mask came from defendant. An expert testified at trial
that she found DNA from two donors on the mask. She stated that there was one major donor
and one minor donor. The minor donor’s sample contained insufficient DNA to create a profile.
She testified that she determined that defendant’s DNA profile matched the major donor’s
profile. Thus, while there was only one identifiable DNA source on the mask, defendant’s, there
technically were two DNA donors.

        Even though the prosecutor may have made a misstatement, it does not appear that the
prosecutor deliberately mischaracterized the evidence. She also did not emphasize or repeat her
error throughout her arguments. Indeed, after defense counsel emphasized during closing
argument that the expert testified that there was DNA from two donors on the mask, the
prosecutor in rebuttal acknowledged that there was a minor donor. She further invited the jury to
review the expert’s report and decide for themselves why defendant’s DNA was on the thermal
sleeve.

        The jury had the expert’s testimony, the expert’s report, the defense’s closing statement,
and the prosecutor’s rebuttal before it. Given these circumstances, the jury clearly was aware
that the prosecutor’s earlier comment was mistaken. For that reason, the erroneous statement
had little if any prejudicial effect. The trial court also instructed the jury that the lawyers’
statements and arguments were not evidence and that the jury “should only accept things that the
lawyers say that are supported by the evidence.” The jury presumably followed that instruction.



        As discussed in this opinion, defendant has not established any irregularities that would
warrant a new trial. Because the jury convicted defendant after a full and fair trial, defendant
cannot now challenge the validity of his conviction on the basis of a purportedly illegal arrest.
See id.


                                               -3-
See People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Additionally, had defense
counsel objected to the statement, the trial court could have fashioned an instruction that would
have cured the error. Consequently, defendant has not shown that the prosecutor engaged in
plain misconduct that prejudiced his trial.

                       IV. INEFFECTIVE ASSISTANCE OF COUNSEL

         Defendant next argues that his defense counsel provided ineffective assistance by failing
to properly investigate his potential defenses and by giving him improper advice concerning
whether to testify on his own behalf. Whether defendant had the effective assistance of counsel
involves a mixed question of fact and law. People v Gioglio (On Remand), 296 Mich App 12,
19; 815 NW2d 589 (2012), remanded on other grounds 493 Mich 864 (2012). This Court
reviews de novo whether a particular act or omission fell below an objective standard of
reasonableness under prevailing professional norms and prejudiced defendant’s trial but reviews
the trial court’s factual findings for clear error. Id. at 19-20. “The clear-error standard is highly
deferential; an appellate court will only determine that a trial court’s finding is clearly erroneous
when, after a review of the entire record, it is left with the definite and firm conviction that the
trial court has made a mistake.” Id. at 20.

        “To establish a claim of ineffective assistance of counsel, the defendant must show that
‘counsel’s representation fell below an objective standard of reasonableness’ under prevailing
professional norms and that there is a ‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’ ” Id. at 22,
quoting Strickland v Washington, 466 US 668, 688, 694; 104 St Ct 2052; 80 L Ed 2d 674 (1984).
Under the first prong, the defendant must identify those acts or omissions that he or she contends
were not the result of reasonable professional judgment. See Gioglio, 296 Mich App at 22. The
reviewing court must then determine whether the identified acts or omissions were outside the
wide range of professionally competent assistance under the totality of the circumstances. Id.

         On appeal, defendant maintains that defense counsel was constitutionally insufficient in
several ways: (1) she failed to contact his girlfriend, Esthony Cochran, whom he states could
have provided him with an alibi defense and who could have testified about his lack of motive;
(2) she failed to investigate “Zach,” who purportedly admitted that he was the perpetrator of the
crimes at issue; and (3) she prevented defendant from testifying on his own behalf by falsely
informing him that the prosecution would present new evidence beyond impeachment if he
testified. The trial court resolved all these claims by making factual findings contrary to
defendant’s versions of events after taking testimony at a Ginther2 hearing.

       At the hearing, defense counsel testified that defendant never told her that Cochran could
provide an alibi. She also stated that she spoke with Cochran—contrary to defendant’s claim—
and Cochran told her that she did not recall defendant’s whereabouts on the night at issue.
Cochran’s testimony—that she now recalled that defendant was with her on that night—was not



2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                -4-
persuasive given her clear credibility issues, and the trial court resolved the disputed testimony
against Cochran. The court found his defense counsel credible and found that she had no
knowledge that Cochran could have or would have testified as an alibi witness. The court further
found that Cochran was not available to testify about defendant’s finances because she had made
herself unavailable to testify when she disappeared for several months. The trial court’s findings
were supported by the record, and we are not left with the definite and firm conviction that it
erred. Given these facts, we agree that defense counsel’s investigation into Cochran was
reasonable, and she cannot be faulted for failing to call Cochran at trial.

        The trial court also found that defense counsel had no knowledge about the “random”
person named Zach. Indeed, the trial court specifically found defendant and his claim that he
provided information about “Zach” not credible. In the absence of such evidence, showing that
counsel was aware of Zach’s purported involvement with the crime, defense counsel’s failure to
further investigate Zach cannot be said to be unreasonable.

        Finally, the trial court did not clearly err when it found, contrary to defendant’s claims,
that defense counsel did not inform defendant that he should not testify because the prosecutor
would use new evidence at trial. Whether defense counsel proffered such advice involved a clear
credibility contest. The trial court found defense counsel credible and stated that defendant was
dishonest with the court. The trial court was in the best position to observe the witnesses’
demeanor, see MCR 2.613(C), and this Court will defer to the trial court’s resolution of
credibility disputes, see Gioglio, 296 Mich App at 24. Accordingly, the trial court did not clearly
err when it found that defense counsel did not in fact provide the improper advice.

        Therefore, we hold that the trial court did not clearly err in making its related factual
findings, and we also hold that based on these facts, his defense counsel did not provide
ineffective assistance.

                             V. PRELIMINARY EXAMINATION

        Defendant next argues that the district court erred when it denied his motion to adjourn
the preliminary examination. We need not address the merits of this unpreserved claim of error.
A preliminary examination is not a constitutionally required procedure, and any errors involving
the preliminary examination are harmless if the defendant was subsequently convicted at an
otherwise fair trial. People v Johnson, 315 Mich App 163, 200 n 7; 889 NW2d 513 (2016); see
also People v Bennett, 290 Mich App 465, 481; 802 NW2d 627 (2010) (“[T]he presentation of
sufficient evidence to convict at trial renders any erroneous bindover decision harmless.”). Here,
defendant has not identified any errors at his jury trial that rendered it unfair. Consequently,
assuming any errors existed at the preliminary examination, they were harmless.

                               VI. ADMISSION OF THE MASK

       In his Standard 4 brief on appeal, defendant argues that the district court erred when it
admitted the improvised mask at the preliminary examination and that the circuit court erred
when it admitted the mask at trial. This Court reviews a trial court’s decision whether to admit
evidence for an abuse of discretion. People v Roper, 286 Mich App 77, 90; 777 NW2d 483
(2009). A trial court abuses its discretion when it selects an outcome that falls outside the range

                                                -5-
of reasonable and principled outcomes. People v Daniels, 311 Mich App 257, 264-265; 874
NW2d 732 (2015). This Court reviews de novo the proper interpretation and application of the
rules of evidence. Roper, 286 Mich App at 91. However, because these claims of error are
unpreserved, this Court’s review is limited to determining whether defendant established a plain,
outcome-determinative error. See Carines, 460 Mich at 763.

        On appeal, defendant maintains that the trial court should not have allowed the admission
of the evidence concerning the thermal sleeve because the prosecution failed to present any
evidence that the sleeve had any connection to the crime at issue. Under MRE 901(a), the
proponent of evidence bears the burden of bringing forth evidence sufficient to support a finding
that the matter in question is what the proponent claims it to be. The proponent can authenticate
evidence through direct or circumstantial evidence, and the proponent’s evidence does not need
to be free of all doubt. See Mitchell v Kalamazoo Anesthesiology, PC, 321 Mich App 144, 155;
908 NW2d 319 (2017). The proponent need only “make a prima facie showing that a reasonable
juror might conclude that the proffered evidence is what the proponent claims it to be.” Id.

       In this case, the victims, James and Karen, testified that the person who robbed them
wore a white or gray ski mask, and James indicated that it was made of thin material. The
prosecution also presented a 911 call in which Karen told the dispatcher that the man had a white
mask on. Karen further testified that the perpetrator ran around the front of their house and fled
on foot. An officer testified that he found a thermal “sleeve,” which appeared to have had two
eye holes cut into it, in the Petersons’ neighbor’s driveway shortly after the robbery. The
neighbor’s driveway was along the path used by the perpetrator of the robbery. The officer
opined that the improvised mask had not been in the driveway for very long given that it was not
wet. The jury also saw photos of the improvised ski mask that showed its condition and
suggested that it must not have been exposed to the elements for very long. The evidence
suggested that the mask was discarded by the perpetrator of the robbery as he fled the Petersons’
home, which was sufficient to authenticate it. Id.

       Defendant places a lot of weight on the fact that James and Karen could not identify the
mask as the one worn by the perpetrator when an officer showed them photos at a later date.
However, they testified that the perpetrator was wearing it under a hoodie, and Karen said that
the perpetrator had the hoodie zipped all the way up. Thus, their testimony suggested that they
were unable to see the thermal sleeve’s ends. Nevertheless, their testimony was consistent with
the physical characteristics of the thermal sleeve itself—it was in fact white and was made of a
thin material. In any event, the prosecution did not have to establish beyond all doubt that the
improvised mask was worn by the perpetrator. The prosecution only had to establish that a
reasonable juror could conclude that it was the mask worn by the perpetrator; taken as a whole,
the evidence permitted such a finding. See id. Once the prosecution established a prima facie
showing, any doubts about the authenticity of the thermal sleeve as the mask worn by the
perpetrator were for the jury. Id. at 156.

       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. The fact that an improvised white mask was found in the
Petersons’ neighbor’s driveway made it more likely than not that the Petersons’ accurately
described the perpetrator’s attire and the path of his flight. It was, therefore, at a minimum

                                               -6-
relevant to bolster the credibility of James and Karen. See People v Layher, 464 Mich 756, 763-
764; 631 NW2d 281 (2001). Additionally, when combined with the evidence that defendant’s
DNA was found on the mask, the mask was relevant to establish defendant’s identity as the
perpetrator of the home invasion and robbery at issue. See People v Yost, 278 Mich App 341,
356; 749 NW2d 753 (2008). Relevant evidence is generally admissible. MRE 402; Roper, 286
Mich App at 91. Because the prosecution sufficiently authenticated the mask, see MRE 901(a),
and the mask was relevant and otherwise admissible, see MRE 401; MRE 402, the trial court
(and district court) did not plainly err by admitting the mask into evidence.

                           VII. SUFFICIENCY OF THE EVIDENCE

        Finally, defendant argues in his Standard 4 brief that the trial court erred when it denied
his motion for a directed verdict. Although he agrees that someone committed an armed robbery
and home invasion at the Petersons’ home, he maintains that the prosecution did not present
sufficient evidence to identify him as the perpetrator of the crimes at issue.

        This Court reviews de novo whether a defendant established grounds for a directed
verdict. See People v Chelmicki, 305 Mich App 58, 64; 850 NW2d 612 (2014). “In challenges
to the sufficiency of the evidence, this Court reviews the record evidence de novo in the light
most favorable to the prosecution to determine whether a rational trier of fact could have found
that the essential elements of the crime were proved beyond a reasonable doubt.” Roper, 286
Mich App at 83. When making this evaluation, any conflicts in the evidence are to be resolved
in favor of the prosecution. People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).
The same standard applies to a motion for directed verdict except that this Court considers only
the evidence presented up to the time of the motion. See People v Schultz, 246 Mich App 695,
702; 635 NW2d 491 (2001).

       Again, defendant only challenges whether the evidence was sufficient to prove the
element of identity, which is an element of every offense. Yost, 278 Mich App at 356. As such,
the prosecutor had to present evidence sufficient to permit the jury to find beyond a reasonable
doubt that defendant was the perpetrator of the offenses at issue.

         At trial, the prosecution presented evidence concerning the general appearance of the
perpetrator of the armed robbery and home invasion. James and Karen both testified that the
perpetrator was white, that he was about 5’9” or 5’10” tall, and that he had a slender build. They
also testified that he wore a two-toned sweatshirt with a hood and a white or gray ski mask.
James indicated that the perpetrator’s mask was of a thin material. Shortly after the robbery, an
officer found a mask that had been improvised from white thermal underwear. He found it in the
driveway next to the Petersons’ home. The officer testified that the mask was not wet and agreed
that it must not have been there very long.

       The prosecutor also presented video evidence that showed the suspected perpetrator of
the robbery about a block from the Petersons’ home just minutes after the robbery. The video
evidence showed that the perpetrator was Caucasian, was not wearing a ski mask at that point,
and had on a two-tone sweatshirt with a hood. The video evidence was consistent with the
Petersons’ testimony that the perpetrator was of average height, had a slender build, and wore a
two-toned hooded sweatshirt. Officers additionally found—among other things—the sweatshirt,

                                                -7-
James’s wallet, and the BB gun used in the crime, in the vicinity of an auto parts store that was
along the path the suspect took. The evidence suggested that the perpetrator of the armed
robbery and home invasion fled from the Petersons’ home in the direction of the auto parts store
and that he discarded evidence along that path. A reasonable jury could infer that the mask was
one of those items, which explains why it was found in the neighboring driveway along the
perpetrator’s path of flight shortly after the robbery and home invasion.

        Importantly, the prosecution further presented evidence that DNA from two donors was
found on the mask. The evidence showed that defendant was the major donor.3 The presence of
DNA from a second donor did not preclude the permissible inference that defendant was the
major donor because he wore the mask. The prosecutor did not have to negate every reasonable
theory consistent with defendant’s innocence. See People v Hardiman, 466 Mich 417, 423-424;
646 NW2d 158 (2002). Viewing the evidence in the light most favorable to the prosecution, as
this Court must do, People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992), amended
441 Mich 1201 (1992), the jury could reasonably conclude that the reason defendant’s DNA was
found on the mask was because he wore the mask over his face and that he did so during the
commission of the offenses at issue. Therefore, the prosecutor presented sufficient evidence to
establish defendant’s identity as the perpetrator of the armed robbery and home invasion.

       Affirmed.

                                                           /s/ Jonathan Tukel
                                                           /s/ Deborah A. Servitto
                                                           /s/ Michael J. Riordan




3
 “Major donor” simply means that there was more DNA material belonging to that donor that
was found compared to the amount from the other, or “minor” donor. “Major” and “minor”
donor, in and of themselves, carry no connotation about guilt or innocence.


                                               -8-
