                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 26, 2016
              Plaintiff-Appellee,

v                                                                  No. 322195
                                                                   Wayne Circuit Court
SHAROC RICHARDSON,                                                 LC No. 13-009830-FC

              Defendant-Appellant.


Before: OWENS, P.J., and BORRELLO and STEPHENS, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial conviction of voluntary manslaughter, MCL
750.321. The trial court initially sentenced defendant, as a third habitual offender, MCL 769.12,
to 150 to 360 months’ imprisonment. Thereafter, the trial court granted defendant’s request for a
resentencing hearing after which defendant was resentenced to 129 months to 30 years’
imprisonment for the conviction. For the reasons set forth in this opinion, we affirm defendant’s
conviction, but vacate and remand that portion of defendant’s sentence dealing with restitution.

                                      I. BACKGROUND

       This appeal arises from the stabbing death of Joyce Merritt. The death occurred
sometime in the late evening hours of October 3, 2013 or the early morning hours of October 4,
2013. Joyce’s body was found on the porch of her brother Danny Merritt’s home by Merritt’s
next door neighbor, Robert Brown. Danny was in the hospital recovering from a leg amputation
and had asked defendant to stay at his home. Danny was aware that his sister and defendant
drank together and when they did, they argued. Brown was also familiar with defendant and
Joyce, and their habit of arguing “just about every time they got to drinking.” Brown awoke on
the morning of October 4, 2013, between 5:00 a.m. and 7:00 a.m., to find a blood trail leading
from his porch toward Danny’s house. Brown followed the trail back to Danny’s porch, where
he found Joyce’s motionless body lying in a pool of blood. There, Brown noticed defendant’s
bicycle leaning up against a fence and assumed defendant was inside the house. He did not
knock on the door, but called the police. Paramedics and police officers began arriving on scene
about 15 minutes later. When Detroit Police Officer Breeana Ortiz arrived around 8:00 a.m.,
defendant had not yet emerged from inside Danny’s home.

      Detroit Police Sergeant Michael Dicicco and Officer Kevin Zarosly arrived on scene
between 8:15 a.m. and 8:30 a.m., and approved forced entry into Danny’s home after observing
                                               -1-
blood between the front screen door and storm door leading inside the house. Dicicco knocked
on the door while Zarosly approached one of the front windows of the home and Ortiz
approached the other. No one answered the door. However, Ortiz and Zarosly noticed that the
windows were slightly ajar. Both officers moved curtains aside and looked into the front living
area of the home. The officers observed two men; one lying on a couch near Ortiz’s window and
one standing near another couch closer to Zarosly’s window. The officers yelled at the men to
come outside, and defendant immediately opened the front door. Dicicco handcuffed defendant
and moved him out onto the lawn before he, Zarosly, and Ortiz secured the rest of the house.
The officers observed “dark, dirty and bloody trails leading into the house,” and followed them
into the front room, where they led across the carpet toward the couch defendant had been
standing next to. The officers carefully stepped around the blood and approached the other man,
still lying on the couch closest to Ortiz’s window. The man, later identified as Morgan Howze,
was very cooperative but a leg injury rendered him unable to move without assistance. The
officers helped Howze stand up and walk outside the house.

        The officers located two black folding pocket knives on the floor near the coffee table
where the officers had seen both men, and a kitchen knife from inside a basket sitting atop a
white stand. The officers collected all three knives as evidence, though none of the knives had
signs of blood or fingerprints. The officers also found several additional knives in the kitchen,
but did not collect them. The officers collected one cell phone from near the coffee table in the
living room and another cell phone they found underneath Joyce’s body on the porch.

        After their search of the home, officers followed the trail of blood from Joyce’s body,
down the front stairs, and out toward the sidewalk. The blood trail, which was “very evident,”
led in two different directions once it reached the sidewalk. Police collected samples of blood
from five different areas: (1) a large pool on the sidewalk just West of Danny’s house, (2) the
chair on Brown’s front porch, (3) the sidewalk outside the front gate of Brown’s house, (4) the
coffee table inside Danny’s house, and (5) the carpet inside Danny’s house. DNA analysis of all
five blood samples revealed that each sample matched Joyce’s blood, and no foreign DNA was
discovered. The knives were not sent for DNA processing or fingerprint analysis. Detective
Nancy Foster, the officer-in-charge of the case after McGinnis, later made the decision not to
send the knives for testing because they were “too clean” to be of any real evidentiary value.
        As officers collected evidence, Ortiz stood outside with defendant, who was still in
handcuffs. Ortiz told defendant several times not to say anything to her, but defendant refused to
stop talking as she stood there with him. Ortiz said defendant seemed nervous, and described his
behavior as “very agitated[,] very irritated and very rude.” She noticed that defendant refused to
look at Joyce’s body, although his eyes seemed to wander everywhere else. He would repeat
phrases like “I did not do that,” or “I did not kill that person,” never referring to Joyce by name
despite their friendship. He told Ortiz that he had seen “that person” the previous evening, when
she came over to his house and he let her borrow his cell phone, but did not provide any
additional information.

       According to Ortiz, when compared to defendant, Howze was very calm and “went along
with the program.” Howze agreed to a videotaped interview with her later that afternoon.




                                                -2-
Howze, who Foster later described as “a very pleasant man,” was 62 years old and homeless at
the time of the incident.1 He had only known defendant, whom he called “Richard,” for about
three weeks prior to the incident. The two men had met at a liquor store down the block from
Danny’s house, and defendant agreed to let Howze stay with him for a while. Howze had
arrived at Danny’s house after dark on “the night that Joyce was killed.” Defendant was already
there, and the two men sat around in the living room drinking whiskey for two or three hours.
Howze became very intoxicated, but could not tell if defendant was intoxicated as well. At some
point that evening, defendant left the room. Howze did not know where defendant went, and
Howze fell asleep on a couch shortly thereafter. Howze remembered waking sometime later to
the sound of defendant arguing with someone, but he could not tell who the other person was.
Their argument lasted about 20 minutes and Howze fell back asleep.

        Sometime later, Howze awoke again and defendant was in the living room. Defendant
told Howze that he and Joyce had been arguing and then walked back out of the room. Howze
did not see defendant pick anything up or notice if defendant had been carrying anything, and he
did not see Joyce that night. Howze did not hear any additional arguing, and he dozed off again.
After what Howze thought was another 20 minutes, defendant woke him up and told him that
“Joyce was on the front porch [and] that she was dead.” Howze thought defendant was joking,
so he went back to sleep. He did not wake up again until the next morning, when Ortiz shouted
at him through the window and he discovered that Joyce was dead.

        Defendant testified at trial. He explained that he had known Joyce since 2009, and
referred to her as “Hurricane Joyce” because the two had a heated relationship. According to
defendant, Joyce had “called the police on him for no reason” on several occasions. They were
not really friends, but bonded as mutual heavy drinkers. Defendant admitted that they argued
frequently after they had been drinking. Defendant claimed that these fights would often end
with Joyce attacking him, but he never “attacked her back.”

        Defendant said he first ran into Joyce around 4:30 p.m. on October 3, 2013. He had been
drinking since that morning, and he continued drinking with her after she arrived at Danny’s
house looking for whiskey. (About an hour later, Joyce walked outside and met a group of
“fellas at the gate.” Defendant said he overheard an argument between Joyce and the men, but
he did not hear what it was about. The men left and Joyce walked back to Danny’s. Referring to
the men, defendant told her that he was not going to allow that “type of people” around the
house. According to defendant, Joyce became very angry and the two argued until Joyce left
with two unidentified friends. Defendant said he had not been upset.

      Defendant explained that he continued to drink until after dark, went to the liquor store
for more whiskey, and returned to Danny’s to find Howze. There, the two men drank some
more. At about 8:00 p.m., defendant went to sleep in a bedroom, waking up around 11:00 p.m.
and going out to the living room, where he noticed Howze still sleeping on one couch.


1
  In fact, Foster would pick Howze up and transport him to every court proceeding. Howze
testified at the preliminary examination, but, as will be discussed in further detail infra, he passed
away prior to defendant’s trial.


                                                 -3-
Defendant fell asleep on the other couch. Defendant testified that sometime later that night, he
woke to find Joyce “bouncing up and down on his chest” with a knife pointed at his eye and a
“spooky look on her face.” Defendant told her to get off of him and tried to sit up, but she told
him to “shut up” and that he could not tell her what to do in her brother’s house. Defendant
claimed that Joyce then cut him underneath his eye. He grabbed her right hand, the hand holding
the knife, and pushed her off so that he could stand up. Defendant tried to run around the coffee
table to get away, but Joyce chased him with “a folded pocket knife.” A struggle ensued and, at
some point, defendant struck Joyce in the neck with a knife. Defendant said he had not intended
to kill her, but that he had needed to act in self-defense: “[I] figured she was out to kill me[,] she
had already almost blinded me.” He claimed that everything was happening really fast, and that
he stabbed her because he “just wanted her to stop assaulting [him].”

         When defendant struck Joyce, she stopped, looked at the floor, and held her hand over the
wound. Defendant said that he could not tell how bad the wound was, but he could see blood
between her fingers. Defendant said he immediately began looking for a cell phone and a towel
to help her, but she ran outside and down the sidewalk in the direction of the liquor store.
Defendant said he could not find a cell phone, but he did find a towel and ran outside to give it to
Joyce. He yelled down the street for her to come back, but she did not turn around. Defendant
went back inside to keep looking for a cell phone. Defendant heard Joyce yelling out in the
street, telling someone that he had cut her neck, but his head was fuzzy. Later, he went outside
again and saw Joyce lying on the porch, but he was too afraid to get close to her. He tried to
wake up Howze but he was unsuccessful. Once again, he looked for a cell phone to call for help.
When he could not find one, he sat down on the couch and fell asleep until the police woke him
the next morning. When he discovered that Joyce was dead, he did not tell the police about the
previous night’s attack.

       Defendant was initially charged with first-degree murder, MCL 750.316(1)(a).
Following the close of the State’s proofs, defense counsel brought a motion for directed verdict
on the first-degree murder charge. The trial court granted the motion and following the
conclusion of testimony the jury was instructed to consider the charges of second-degree murder,
MCL 750.317, and the lesser included offense of voluntary manslaughter. The jury found
defendant not guilty of second-degree murder, but guilty of voluntary manslaughter. Defendant
was sentenced as indicated supra. This appeal then ensued.

                 II. DIRECTED VERDICT ON SECOND-DEGREE MURDER

        On appeal, defendant first argues that the trial court erred when it denied his motion for a
directed verdict of acquittal. This Court reviews de novo a trial court’s decision on a motion for
a directed verdict. People v Aldrich, 246 Mich App 101, 122; 631 NW2d 67 (2001). “A
challenge to the trial court’s decision on a motion for a directed verdict has the same standard of
review as a challenge to the sufficiency of the evidence, except that only the evidence presented
before the motion for a directed verdict was made is considered.” People v Schultz, 246 Mich
App 695, 702; 635 NW2d 491 (2001). This Court must review the evidence in a light most
favorable to the prosecution to determine whether a rational trier of fact could have found each
element of the charged crimes proven beyond a reasonable doubt. People v Reese, 491 Mich
127, 139; 815 NW2d 85 (2012).


                                                 -4-
        As previously stated, defendant was initially charged with first-degree premeditated
murder, MCL 750.316(1)(a). At trial, the court granted defendant’s motion for a directed verdict
on the first-degree murder charge, however, the jury was instructed to consider the charges of
second-degree murder, MCL 750.317, and the lesser included offense of voluntary manslaughter
in the alternative. The jury found defendant not guilty of second-degree murder, but found the
defendant guilty of voluntary manslaughter. Consequently, defendant’s claim of error may be
dismissed at the outset because defendant was not convicted of second-degree murder. An
erroneous denial of a motion for directed verdict is harmless when defendant is ultimately
acquitted on the charge, even when the defendant is convicted of a lesser offense. See People v
Graves, 458 Mich 476, 478-479; 581 NW2d 229 (1998) (finding it unnecessary to decide
whether the defendant had been entitled to a directed verdict on a first-degree murder charge
after the defendant had been acquitted on that charge and instead convicted of voluntary
manslaughter). In Graves, our Supreme Court stated: “We are persuaded by the view that a
defendant has no room to complain when he is acquitted of a charge that is improperly submitted
to a jury, as long as the defendant is actually convicted of a charge that was properly submitted
to the jury. Such a result squares with respect for juries. Further, not to adopt this view is to
countenance a misuse of judicial resources by automatically reversing an otherwise valid
conviction.” Id. at 486-487. Furthermore, defendant has failed to show that the trial court
committed error when it denied his motion for a directed verdict of acquittal for the offense of
second-degree murder. Accordingly, defendant is not entitled to relief on this issue.
                              III. SUFFICIENCY OF EVIDENCE

       Next, defendant argues that insufficient evidence was presented to support his voluntary
manslaughter conviction. This Court reviews challenges to the sufficiency of evidence de novo.
People v Lanzo Const Co, 272 Mich App 470, 473; 726 NW2d 746 (2006). We must review the
evidence in a light most favorable to the prosecution to determine whether a rational trier of fact
could have found each element of the charged crimes proven beyond a reasonable doubt. Reese,
491 Mich at 139. Circumstantial evidence and reasonable inferences that arise from such
evidence can constitute satisfactory proof of the elements of the crime. People v Williams, 268
Mich App 416, 419; 707 NW2d 624 (2005). This Court resolves conflicts in the evidence in
favor of the prosecution, and will not interfere with the trier of fact’s determinations regarding
the weight of evidence and the credibility of the witnesses. People v Unger, 278 Mich App 210,
222; 749 NW2d 272 (2008).

       Defendant was charged with second-degree murder, but convicted of the lesser included
offense of voluntary manslaughter. In People v Mendoza, 468 Mich 527, 540; 664 NW2d 685
(2003), our Supreme Court explained:

             A necessarily lesser included offense is an offense whose elements are
       completely subsumed in the greater offense.

               Regarding voluntary manslaughter, both murder and voluntary
       manslaughter require a death, caused by defendant, with either an intent to kill, an
       intent to commit great bodily harm, or an intent to create a very high risk of death
       or great bodily harm with knowledge that death or great bodily harm was the
       probable result.       However, the element distinguishing murder from
       manslaughter―malice―is negated by the presence of provocation and heat of
                                                -5-
       passion. Thus, we conclude, the elements of voluntary manslaughter are included
       in murder, with murder possessing the single additional element of malice. [Id.
       (internal citations omitted).]

       Defendant argues that the prosecution presented insufficient evidence for a conviction of
voluntary manslaughter because it failed to show that defendant acted in the heat of passion or
was adequately provoked.        However, “[p]rovocation is not an element of voluntary
manslaughter, [and] it need not be proven by the prosecution beyond a reasonable doubt.”
People v Moore, 189 Mich App 315, 320; 472 NW2d 1 (1991). As the Mendoza Court
explained, adequate provocation creates a mitigating circumstance that negates the malice
element necessary for a murder conviction. Mendoza, 468 Mich at 535-536.

        The evidence presented at the close of the prosecutor’s case was sufficient to support a
second-degree murder conviction. The elements of second-degree murder are as follows: (1) a
death, (2) caused by an act of the defendant, (3) with malice, and (4) without lawful justification
or excuse for causing the death. People v Smith, 478 Mich 64, 70; 731 NW2d 411 (2007). Here,
there was sufficient circumstantial evidence to support the inference that an act of defendant
caused Joyce’s death. Howze testified that he heard defendant arguing with someone on the
night of Joyce’s murder. Shortly thereafter, defendant informed Howze that he had been arguing
with Joyce, and then told Howze that he thought Joyce was dead on the porch. Joyce’s body was
discovered the next morning on the porch, and a blood trail led from Joyce’s body to the very
couch defendant had been sleeping on. Two pocket knives were discovered on the carpet next to
defendant’s couch. Although the carpet and table were covered in blood, both knives were clean.
In fact, the officer in charge testified that the two pocket knives, along with a kitchen knife that
was also discovered near the couch, had not been sent for DNA analysis or fingerprinting
because they were “too clean” for tests to provide any usable evidence. In addition to the fact
that the knives appeared to have been cleaned, defendant did not come to the door for an hour
and a half after Brown discovered Joyce’s body on the porch and police officers began arriving
outside Danny’s home. The arresting officers testified that when they looked inside the home’s
front windows they observed defendant in the front room, awake and standing next to his couch.
The jury could reasonably have inferred that defendant was aware of the officers’ presence and
tried to avoid talking about what happened to Joyce. Defendant’s argument with Joyce, his
knowledge that Joyce was dead outside on the porch, and his failure to seek the help of the police
supports an inference that defendant killed Joyce and was conscious of his guilt.

        The evidence presented also supported the inference that defendant acted with malice.
“Malice is defined as the intent to kill, the intent to cause great bodily harm, or the intent to do an
act in wanton and wilful disregard of the likelihood that the natural tendency of such behavior is
to cause death or great bodily harm.” People v Goecke, 457 Mich 442, 464; 579 NW2d 868
(1998). “The offense of second-degree murder does not require an actual intent to harm or kill,
but only the intent to do an act that is in obvious disregard of life-endangering consequences.”
People v Mayhew, 236 Mich App 112, 125; 600 NW2d 370 (1999), citing Goecke, 457 Mich at
466. Malice may be “inferred from evidence that the defendant ‘intentionally set in motion a
force likely to cause death or great bodily harm.’” Mayhew, 236 Mich App at 125, quoting
People v Djordjevic, 230 Mich App 459, 462; 584 NW2d 610 (1998).



                                                 -6-
        Joyce’s wound was caused by a knife, and the use of a knife alone is sufficient to support
an inference of malice. People v Carines, 460 Mich 750, 760; 597 NW2d 130 (1999). The
evidence established that Joyce’s wound stretched across the entire length of her neck, deep
enough to sever her internal and external jugular veins. The medical examiner testified that
Joyce bled out “over many minutes.” She walked out of Danny’s house, around the block, over
to a neighbor’s home, and back to Danny’s house before she finally expired. The “clearly
evident” trail of blood at the crime scene is evidence that after defendant inflicted Joyce’s
wound, he should have been aware of the extent of her injury. Instead, he allowed her to suffer
and die. See People v McGhee, 268 Mich App 600, 623; 709 NW2d 595 (2005) (noting that
intent may be inferred from circumstantial evidence). Indeed, the police officers discovered a
cell phone and charger on the carpet directly in front of the couch defendant was found standing
next to on the morning Joyce’s body was found. This supported the inference that defendant had
access to a phone and decided not to call the police, even though he knew Joyce was either
seriously injured or dead.

       Because the motion for directed verdict was decided prior to defendant’s testimony, the
jury had not yet been informed of defendant’s self-defense claim. However, even by this time,
the prosecution had presented sufficient evidence to allow the jury to reject that defense. The
same evidence upon which the jury could infer malice also supports an inference that defendant
acted without lawful justification or excuse. Defendant’s nervous behavior at the crime scene
and initial denial of any involvement in Joyce’s death, coupled with the evidence that he had
been the one to kill her, suggested that he could not reasonably believe his actions were justified.
Because there was evidence to infer the elements of second-degree murder, this charge was
properly placed before the jury. Mayhew, 236 Mich App at 126. Accordingly, we find that the
evidence presented after the trial court denied defendant’s motion for a directed verdict further
supported such a conviction.

        Following defendant’s motion for a directed verdict, defendant took the stand and
admitted that Joyce had been killed as a result of his actions. While defendant argued that he
acted in self-defense, he did not dispute the fact that it was his act of cutting Joyce’s throat that
ultimately led to her death. Additionally, defendant’s testimony offered further support for the
inference that he had acted with malice. He testified that he knew that Joyce was hurt. Although
he claimed to have searched tirelessly for a cell phone, he did not dispute the fact that the
officers retrieved a cell phone from the floor next to the couch he had been found standing next
to. Indeed, defendant claimed that he had fallen asleep on that couch while purportedly
searching for a cell phone. His failure to offer assistance or seek help for Joyce further supports
the inference that he acted in obvious disregard of the life-endangering consequences of his
actions. Mayhew, 236 Mich App at 125.

         What constitutes adequate provocation is a question of fact for the jury. People v
Pouncey, 437 Mich 382, 391; 471 NW2d 346 (1991). While provocation need not be proven
beyond a reasonable doubt, “there must be some ‘slight but sufficient’ evidence in order for the
instruction on voluntary manslaughter to be given.” Moore, 189 Mich App at 320 (quoting
People v King, 98 Mich App 146, 150-151; 296 NW2d 211 (1980)). “The provocation necessary
to mitigate a homicide from murder to manslaughter is that which causes the defendant to act out
of passion rather than reason.” Pouncey, 437 Mich at 389 (citations omitted). Defendant
testified that he and Joyce frequently argued when they had been drinking, and that they had both

                                                -7-
been drinking heavily on the day leading up to the murder. Defendant’s testimony was
supported by the testimony of Danny and Brown, who were both also familiar with defendant
and Joyce’s tendency to get in fights. Defendant also testified that he referred to Joyce as
“Hurricane Joyce” in light of their heated relationship, and that she had, on more than one
occasion, called the police to investigate him without reason. Defendant admitted that he had
fought with Joyce several hours before the incident, and then again during the events that
ultimately led to her death. Howze confirmed that defendant had been fighting with someone,
and that defendant had told Howze he had been arguing with Joyce. This testimony amounted to
“slight but sufficient” evidence upon which the jury could infer that defendant acted out of
passion, rather than reason.

        Defendant also argues that insufficient evidence was presented to support his conviction
because the prosecutor failed to rebut his claim of self-defense beyond a reasonable doubt, but
this argument lacks merit. A defendant may act in lawful self-defense if he “honestly and
reasonably believes his life is in imminent danger or that there is a threat of serious bodily harm
and that it is necessary to exercise deadly force to prevent such harm to himself.” People v
Dupree, 486 Mich 693, 707; 788 NW2d 399 (2010). If defendant’s testimony had been credited
by the jury, there was sufficient evidence for the jury to find that defendant acted in self-defense.
Defendant testified that Joyce often fought with other people in the community, and that she had
physically attacked him on prior occasions. Additionally, defendant claimed that he felt it was
necessary to cut Joyce’s throat to prevent further injury after Joyce had already cut his eye.
However, there was also evidence to satisfy the prosecutor’s burden to disprove self-defense
beyond a reasonable doubt. First, the evidence supported an inference that defendant’s fear was
not honest or reasonable. If defendant’s testimony is credited, defendant was forced to use a
knife to cut the throat of a 50-year-old, 105 pound woman, after he had already been able to push
her off of himself and stand up. Although defendant claims Joyce cut him under the eye, he did
not produce evidence of the injury and none of the knives recovered from the crime scene had
blood on them. Even if, as defendant contends, Joyce had used her knife to cut him, defendant
was not automatically permitted to resort to the use of deadly force to defend himself. See
People v Riddle, 467 Mich 116, 142-143; 649 NW2d 30 (2002) (noting that, generally, a
defendant is not entitled to use any more force than is necessary to defend himself); MCL
780.972(1)-(2) (outlining the conditions under which an individual is privileged to use deadly
force or force other than deadly force). Based on Joyce’s size and the fact that defendant was
able to get away from her, the jury could rationally have concluded that defendant could not have
believed his use of force was necessary to prevent further injury.

         Finally, there was no evidence that defendant acted in self-defense other than defendant’s
own testimony, which the jury was free to disbelieve. People v Wolfe, 440 Mich 508, 514-515;
489 NW2d 748, amended 441 Mich 1201 (1992). Importantly, defendant admitted that he had
not told anyone that Joyce had attacked him at his initial interview or at any other point before
trial, despite being asked outright about physical altercations between himself and Joyce. In fact,
during his initial police interview, he denied any involvement in Joyce’s death. Defendant’s
testimony therefore lacked credibility, and the jurors might reasonably have inferred that
defendant lied about Joyce’s attack or, at least, had not testified truthfully regarding his need for
defensive action. Unger, 278 Mich App at 227 (explaining that “[a] jury may infer
consciousness of guilt from evidence of lying or deception.”) The jurors were provided with a
self-defense instruction at trial, and are presumed to have properly considered that defense

                                                -8-
during deliberations. People v Abraham, 256 Mich App 265, 278-279; 662 NW2d 836 (2003).
Viewing the evidence in a light most favorable to the prosecution, sufficient evidence was
therefore presented to support a rational trier of fact’s conclusion that defendant did not act in
self-defense.

                  IV. INVOLUNTARY MANSLAUGHTER INSTRUCTION

       Third, defendant argues that the trial court erred when it instructed the jury to consider
the charge of voluntary manslaughter without also instructing the jury to consider the offense of
involuntary manslaughter. Defendant failed to preserve this issue by objecting to the trial
judge’s instructions or requesting an involuntary manslaughter instruction at trial. People v
Sabin (On Second Remand), 242 Mich App 656, 657; 620 NW2d 19 (2000). Indeed, defense
counsel affirmatively stated that he had no objections to the jury instructions as read during trial.
This affirmative statement constituted express approval of the instructions that waived review of
any claim of instructional error on appeal. People v Lueth, 253 Mich App 670, 688; 660 NW2d
322 (2002). Accordingly, defendant is not entitled to relief on this issue.2

            V. FURTHER INSTRUCTION ON VOLUNTARY MANSLAUGHTER

        In his Standard 4 brief, defendant argues that the trial court erred when it failed to
provide the jury with additional instructions on the offense of voluntary manslaughter. As with
the previous claim for instructional error, defendant waived this issue when he approved the final
jury instructions. Lueth, 253 Mich App at 688. Again, however, we have considered the issue
and found that it lacks merit.

        A trial court is required to instruct the jury on the law applicable to the case and to
present the case to the jury in a clear and understandable manner. People v Henry, 239 Mich
App 140, 151; 607 NW2d 767 (1999). “Even if somewhat imperfect, [jury] instructions do not
create error if they fairly presented the issues for trial and sufficiently protected the defendant’s
rights.” People v Canales, 243 Mich App 571, 574; 624 NW2d 439 (2000).

        Although defendant alleges that the trial judge improperly refused the jurors’ specific
request for additional instructions on the offense of voluntary manslaughter, the record does not
support this contention. The jurors did not express any lack of understanding with regard to the
instructions. Further, defendant’s assertion that the jury may have acquitted him after receiving
further instructions on voluntary manslaughter and self-defense is mere conjecture. There is no
indication that, given additional instructions, the jurors would have reached a different
conclusion. A review of the record reveals that the trial court properly informed the jury during
its final instructions regarding both voluntary manslaughter and self-defense. Additionally, at


2
  If we were to consider the issue, we find that the record reveals that the evidence presented at
trial did not support an instruction on involuntary manslaughter. Therefore, the trial judge did
not err when he failed to provide one.




                                                -9-
the request of defense counsel, the trial court recalled the jurors to clarify that self-defense would
negate either second-degree murder or voluntary manslaughter, preventing the jury from limiting
the application of self-defense to the second-degree murder charge. Jurors are presumed to
follow the instructions given by the trial court. Graves, 458 Mich at 486. Read as a whole, the
jury instructions fairly presented the issues and sufficiently protected defendant’s rights.
Therefore, we find no error.

                          VI. ABUSE OF PROSECUTORIAL POWER

        In his Standard 4 brief, defendant also claims that the prosecutor abused his power when
he “overcharged” defendant with first-degree premeditated murder. Defendant did not preserve
the issue of prosecutorial overcharge by raising the issue before the trial court. People v Grant,
445 Mich 535, 546; 520 NW2d 123 (1994). We review unpreserved issues for plain error.
People v Young, 472 Mich 130, 135, 143; 693 NW2d 801 (2005). To satisfy the plain error
standard, a defendant must show (1) an error, (2) that the error was clear or obvious, and (3) that
the error affected his substantial rights by causing him prejudice. People v Borgne, 483 Mich
178, 196-197; 768 NW2d 290, aff’d 485 Mich 868 (2009). We review the prosecutor’s charging
decisions for an “abuse of power,” examining whether the prosecutor acted in contravention of
the constitution or the law. People v Barksdale, 219 Mich App 484, 487; 556 NW2d 521 (1996).

        Courts have a narrow scope of review over the prosecuting attorney’s charging decisions.
Id. at 487. In general, the prosecution “is given broad charging discretion,” People v Conat, 238
Mich App 134, 149; 605 NW2d 49 (1999), and may bring any charges supported by the
evidence, People v Yeoman, 218 Mich App 406, 413-414; 554 NW2d 577 (1996). A prosecutor
abuses his power only if “a choice is made for reasons that are “unconstitutional, illegal, or ultra
vires.” Barksdale, 219 Mich App at 488. In the absence of any claim or evidence of abuse of
power in the prosecutor’s charging decision, this Court does not question that choice. Id. at 489.

        Defendant argues that the prosecutor should not have charged him with first-degree
premeditated murder because the evidence tended to show that Joyce had fought with defendant
prior to her murder. Defendant has not alleged that the first-degree premeditated murder charge
was brought for an unconstitutional, illegal, or illegitimate reason. Therefore, there is no basis
for defendant’s abuse of power claim. Further, defendant has not established prejudice as a
result of the prosecutor’s decision to charge defendant with first-degree premeditated murder
because defendant was not convicted of first-degree murder. At trial, the court directed a verdict
of acquittal on that charge and defendant was ultimately convicted of the lesser included offense
of voluntary manslaughter. Without a showing of prejudice, defendant cannot satisfy the plain
error standard and is not entitled to relief on this issue. Carines, 460 Mich at 763.

                                    VII. BRADY3 VIOLATION

       In his Standard 4 brief, defendant also alleges that he was deprived of a fair trial when the
prosecutor improperly withheld favorable evidence. Defendant failed to preserve this issue by


3
    Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).


                                                -10-
raising it before the trial court. Therefore, we review for plain error affecting defendant’s
substantial rights. Id. at 774. Due process claims, such as those involving allegations of a Brady
violation, are reviewed de novo. People v Schumacher, 276 Mich App 165, 176; 740 NW2d 534
(2007).

        Discovery in a criminal case is governed by MCR 6.201, which requires the prosecution
to disclose to defendant “any exculpatory information or evidence known to the prosecuting
attorney.” MCL 6.201(B)(1); People v Phillips, 468 Mich 583, 588; 663 NW2d 463 (2003).
Although it is well recognized that “[t]here is no general constitutional right to discovery in a
criminal case,” People v Elston, 462 Mich 751, 765; 614 NW2d 595 (2000), a defendant’s right
to due process may be violated by the prosecution’s failure to produce exculpatory evidence.
Under Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963), the prosecution
is required to turn over evidence in its possession that is both favorable to the defendant and
material to guilt or punishment. A Brady violation occurs when (1) evidence is suppressed by
the prosecution either inadvertently or in bad faith, (2) the evidence is favorable to the accused
because it is either exculpatory or impeaching, and (3) the evidence is material, i.e., there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. People v Chenault, 495 Mich 142, 150; 845 NW2d 731
(2014).

        Defendant has not established a Brady violation. First, there is nothing to indicate that
the prosecution “suppressed” any evidence. Defendant claims that the prosecutor improperly
withheld recordings of telephone calls he had made to potential witnesses while he was
incarcerated. However, defendant has provided no proof that the prosecution possessed any such
recordings. The prosecution cannot “suppress” what it does not have access to. Additionally,
our Supreme Court has made clear that when a defendant had knowledge of favorable evidence,
the likelihood that a defendant can establish that the evidence was suppressed for purposes of a
Brady claim is reduced. Chenault, 495 Mich at 155. Defendant cannot reasonably claim that the
prosecution “suppressed” evidence of defendant’s own telephone conversations, as defendant
would have been fully informed of the substance of those conversations and aware of any
conclusions to be drawn therefrom.

        Defendant also claims that the prosecution withheld information “from defendant and
from the jury” regarding outstanding arrest warrants for Joyce. The record is devoid of evidence
supporting this claim. Additionally, even if this Court were to credit defendant’s claim that the
outstanding arrest warrants existed and were possessed by the prosecution, defendant cannot
establish a Brady violation because he has failed to prove that any of the allegedly suppressed
evidence was “exculpatory” or “material.” Defendant does not claim that anything contained in
his telephone conversations or in the arrest warrants negated an element of voluntary
manslaughter or cast reasonable doubt on the prosecutor’s theory of the case. Defendant claims
only that the telephone conversations illustrated that he was attempting to find witnesses that
were aware of Joyce’s propensity for violence, and that the outstanding arrest warrants indicated
that Joyce was a violent person. However, the fact that Joyce was violent, while perhaps lending
weight to defendant’s self-defense theory, was not exculpatory.

      Assuming any of the allegedly suppressed evidence was admissible, defendant has not
shown that its presentation would have had an effect on the outcome of defendant’s trial.

                                              -11-
Defendant makes the general observation that the “undiscovered evidence could reasonably have
put the case in a different light and undermined confidence in the verdict.” (Emphasis added.)
Defendant’s argument fails for lack of specificity. People v Fox, 232 Mich App 541, 549; 591
NW2d 384 (1998). Further, the jury was exposed to evidence of Joyce’s potential for violence
through testimony of several witnesses, including defendant. There is nothing to prove that the
jury’s decision would have been affected by the presentation of additional evidence on the
matter. The evidence was therefore immaterial and the prosecutor’s failure to disclose it to
defendant did not constitute a Brady violation.

                      VIII. INEFFECTIVE ASSISTANCE OF COUNSEL

        Next, defendant claims that he was deprived of his constitutional right to the effective
assistance of counsel when defense counsel (1) failed to call and cross-examine witnesses
regarding Joyce’s propensity for violence, and (2) failed to object to the prosecutor’s use of
improper rebuttal evidence. In his Standard 4 brief, defendant also claims that defense counsel’s
failure to conduct a proper investigation and adequately prepare for trial deprived defendant of
the effective assistance of counsel. Defendant failed to preserve this issue by bringing a timely
motion for a new trial or for a Ginther4 hearing in the lower court. Therefore, our review is
limited to mistakes apparent on the record. People v Davis, 250 Mich App 357, 368; 649 NW2d
94 (2002). Whether a person has been denied effective assistance of counsel is a mixed question
of law and fact. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). “A trial
court’s findings of fact, if any, are reviewed for clear error, and this Court reviews the ultimate
constitutional issue arising from an ineffective assistance of counsel claim de novo.” Id.

         There is a strong presumption that an attorney’s assistance was effective, and the
defendant bears the heavy burden of proving otherwise. People v Seals, 285 Mich App 1, 17;
776 NW2d 314 (2009). To establish ineffective assistance, the defendant must show that “(1)
defense counsel’s performance was so deficient that it fell below an objective standard of
reasonableness and (2) there is a reasonable probability that defense counsel’s deficient
performance prejudiced the defendant.” Strickland v Washington, 466 US 668, 687; 104 S Ct
2052; 80 L Ed 2d 674 (1984); People v Heft, 299 Mich App 69, 80-81; 829 NW2d 266 (2012).
A defendant is prejudiced if there is a reasonable probability that, “but for defense counsel’s
errors, the result of the proceeding would have been different.” Heft, 299 Mich App at 81.

                       A. FAILURE TO ADEQUATELY INVESTIGATE

       Counsel may be found to be ineffective due to lack of preparedness. People v Caballero,
184 Mich App 636, 640; 459 NW2d 80 (1990). However, the defendant “must show that his
counsel’s failure to prepare for trial resulted in counsel’s ignorance of, and hence failure to
present, valuable evidence that would have substantially benefited” his case. People v Bass (On
Rehearing), 223 Mich App 241, 253; 565 NW2d 897 (1997), vacated in part on other grounds
457 Mich 866 (1998). Further, when making a claim of defense counsel’s unpreparedness, a



4
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                               -12-
defendant is required to show prejudice resulting from this alleged lack of preparation.
Caballero, 184 Mich App at 640.

        In his Standard 4 brief, defendant claims that defense counsel was constitutionally
ineffective because he failed to share discovery materials and discuss defense matters with
defendant. As a result, defendant claims that defense counsel was unable to present several
important facts to the jury. However, this Court’s review is limited to the record, People v
Crews, 299 Mich App 381, 400; 829 NW2d 898 (2013), and the record is devoid of any of
defense counsel’s alleged investigative failings. Defendant’s argument on appeal is that defense
counsel’s failure to properly investigate the case prevented him from adequately presenting his
self-defense theory. Specifically, defendant asserts that, after a proper investigation, defense
counsel would have discovered: (1) defendant had no means of escape from Joyce during her
attack, (2) the cell phone found the following morning near defendant’s couch did not work, and
(3) his employer, Richard Truchan, had information regarding Joyce’s propensity for violence
and was available to testify. On this record, however, it is not clear that defense counsel lacked
knowledge of the favorable information defendant claims was missing from trial. It is equally
likely that defense counsel understood defendant’s self-defense theory, and simply chose not to
focus on the evidence defendant, in hindsight, believes to be important.

        At trial, the prosecutor presented pictures of Danny’s living room. Defense counsel
could reasonably have expected the jury to infer that defendant’s space had been limited at the
time of Joyce’s attack. Further, defense counsel could reasonably have concluded that
defendant’s claimed inability to escape would be unconvincing, given the relative sizes of Joyce
and defendant and defendant’s own testimony that he easily pushed Joyce off of him prior to
stabbing her. Additionally, the fact that defendant could not escape was largely irrelevant, as
there is no duty to retreat from an attack in one’s dwelling. People v Richardson, 490 Mich 115,
120-121; 803 NW2d 302 (2011). The prosecutor also provided pictures of the cell phone in
defendant’s living room, and defense counsel was certainly aware of the cell phone’s presence
before cross-examining the evidence technician and eliciting defendant’s self-defense account.
Defense counsel’s failure to question either witness about the cell phone’s functionality was not
unreasonable. Assuming the cell phone was, in fact, nonfunctioning, defense counsel could
surely have concluded that this fact was not “valuable” or “highly beneficial” to the defense
theory. Defendant avoided the police for nearly an hour and a half on the morning Joyce’s body
was discovered. He admits in his Standard 4 brief that the police found an additional functioning
cell phone on the premises, and he told the jury at trial that he fell asleep on the couch rather than
calling for help. The fact that the cell phone did not work would not overcome defendant’s
failure to seek help in another way. Defense counsel could reasonably have attempted to avoid
any testimony related to defendant’s failures, hoping that a focus on Joyce’s attack would shift
attention away from defendant’s admitted shortcomings.

        Finally, there is no evidence on the record that defense counsel failed to investigate
Truchan and his potential testimony, or that defense counsel’s decision not to call him at trial
was anything other than reasonable trial strategy. In support of his position, defendant attached
an affidavit purportedly provided by Truchan to his Standard 4 Brief on appeal. This affidavit is
not part of the lower court record and we need not consider it. See MCR 7.210(A); People v
Horn, 279 Mich App 31, 38; 755 NW2d 212 (2008). In the affidavit, Truchan claims that he
knew of Joyce’s reputation for violence through conversations with defendant and another

                                                -13-
employee familiar with Joyce. Truchan does not claim to have known Joyce personally. Even if
we were compelled to consider the affidavit, we find that Truchan’s intended testimony consisted
solely of inadmissible hearsay. Additionally, while Truchan claims that he was never contacted
by defense counsel, the failure to interview witnesses does not alone establish inadequate
preparation. Caballero, 184 Mich App at 640. Truchan claims to have been at defendant’s trial
and ready to testify, but Truchan was at defendant’s trial because he was on the prosecutor’s
witness list. Defense counsel could reasonably have decided not to call Truchan, who could only
have provided inadmissible testimony, concluding that any evidence he provided would be
favorable to the prosecution.

        Decisions regarding what evidence to present, People v Dixon, 263 Mich App 393, 398;
688 NW2d 308 (2004), and whether to call or question witnesses, People v Russell, 297 Mich
App 707, 716; 825 NW2d 623 (2012), are presumed to be matters of trial strategy. Defendant
has provided no evidence that defense counsel failed to reasonably investigate the case, People v
Trakhtenberg, 493 Mich 38, 51–55; 826 NW2d 136 (2012), or that defense counsel’s
performance failed to meet an objective standard of reasonableness under prevailing professional
norms, People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012). The fact that defense
counsel’s strategy at trial did not work does not render his performance ineffective. People v
Petri, 279 Mich App 407, 412; 760 NW2d 882 (2008).

               B. FAILURE TO CALL AND CROSS-EXAMINE WITNESSES

        Defendant has not shown that defense counsel’s failure to call Truchan or cross-examine
Danny, Brown, or Howze on the subject of Joyce’s propensity for violence constituted
ineffective assistance of counsel. Defendant’s claim easily fails with regard to Truchan. Even if
we were to consider the affidavit attached to defendant’s Standard 4 brief on appeal, Truchan’s
intended testimony clearly consists of inadmissible hearsay. MRE 801; MRE 802. Counsel
cannot be faulted for failing to present inadmissible evidence. Further, the record fails to support
defendant’s claim with regard to Danny, Brown, and Howze because defendant has not made an
offer of proof regarding the substance of any favorable testimony these witnesses might have
provided. Presumably, defendant believes that these witnesses would present evidence that
Joyce had a reputation for violence. While this evidence might bolster defendant’s self-defense
theory, nothing in the record suggests that any of these witnesses would so testify. Although
each of these individuals testified that they were familiar with Joyce and that they had heard
defendant and Joyce fighting in the past, nothing in their testimony suggested that Joyce fought
with anyone else or that Joyce was prone to physical violence. Defendant has not submitted an
affidavit from either of the two living witnesses5 attesting to knowledge of Joyce’s alleged


5
  As previously stated, Howze passed away prior to trial, although he was thoroughly cross-
examined by defendant’s previous court appointed attorney at the preliminary examination.
Because his testimony was presented through a reading of the preliminary examination
transcript, defense counsel can hardly be faulted for failing to cross-examine him at trial. Indeed,
defense counsel “vigorously” objected to the presentation of Howze’s testimony, and the trial
court allowed its admission after determining that defendant’s prior attorney had been given a
sufficient opportunity for cross-examination.


                                               -14-
violent proclivities, nor has he presented any evidence that would support his assertion that Joyce
was known in the community for a violent character. Defendant cannot establish a claim of
ineffective assistance of counsel by merely speculating about what additional testimony
witnesses could provide. People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009).
Without an offer of proof that additional information regarding Joyce’s character would have
aided his defense, defendant has failed to establish the necessary factual predicate for his
ineffective assistance of counsel claim. People v Carbin, 463 Mich 590, 600; 623 NW2d 884
(2001).

        Additionally, even if we accepted defendant’s assertion that these witnesses’ testimony
would have aided defendant’s self-defense theory, defendant cannot overcome the presumption
that defense counsel’s decision not to elicit this testimony was a matter of trial strategy. First,
there is evidence that defense counsel conducted an investigation into Joyce’s relations, at least
on the day of the murder. Defense counsel requested a special investigator to track Joyce’s
whereabouts and interactions on the day leading up to the incident, and the trial judge granted the
request. On this record, defendant cannot refute the possibility that defense counsel investigated
and considered Joyce’s character and it was simply nonviolent. Additionally, defense counsel
may have made the decision to rely on defendant’s testimony regarding self-defense, rather than
turn defendant’s trial into a contest of character. At least in his brief on appeal, defendant seems
to forget that once Joyce’s reputation for violence had been raised as an issue, defendant’s
violent history would be opened up for review. MRE 404(a)(1)-(2). Defendant has at least one
violent incident in his past⎯a conviction for assault with intent to commit murder. Although the
fact of the conviction itself would be inadmissible absent special circumstances, defense counsel
might reasonably have expected defendant’s reputation to reflect his violent history. MRE
404(b)(1); MRE 405. Defense counsel may have purposefully avoided discussions of Joyce’s
character in order to keep this information from the jury. We do not second guess defense
counsel’s strategic decisions regarding what evidence to present or how to question witnesses.
Dixon, 263 Mich App at 398 (internal citations and quotations omitted).

        Finally, defendant has failed to prove that additional information regarding Joyce’s
reputation for violence would have led to a different outcome at trial. The jury heard several
allegations of violence on Joyce’s part. Danny and Brown both testified that Joyce would often
fight with defendant after she had been drinking. Additionally, defendant testified both that
Joyce often fought with people in the community and that she had been the initial aggressor on
the evening of the murder. Defendant has not shown that additional testimony regarding Joyce’s
violent character would be anything but cumulative. Further, the failure to call or question
witnesses constitutes ineffective assistance of counsel only when it deprives defendant of a
substantial defense. Id. The sole purpose for evidence regarding Joyce’s alleged propensity for
violence was to bolster defendant’s assertion that he had acted in self-defense, an assertion he
was not deprived of the opportunity to present. Indeed, the jurors were instructed to consider
defendant’s asserted self-defense theory, and they were free to accept or reject it. Schumacher,
276 Mich App at 179-180. The fact that they chose to disbelieve defendant’s claim of self-
defense, even after hearing evidence of Joyce’s violence, does not mean that defendant was
deprived of his defense.

                   C. FAILURE TO OBJECT TO IMPROPER REBUTTAL


                                               -15-
        Defendant also argues that defense counsel’s failure to object to the prosecution’s
presentation of his recorded interview and the testimony of a police officer amounted to
ineffective assistance of counsel. Defendant claims that the prosecution’s use of his interview
statements was improper because such evidence was inadmissible under MRE 608(b) and MRE
609, and that defense counsel’s failure to object on those grounds was unreasonable. These
claims lack legal merit.

        Although the prosecution did not present the recorded interview with defendant during its
case in chief, it sought to introduce the video as rebuttal evidence after defendant advanced his
self-defense theory. Defendant objected on the basis that the interview had been involuntary and
that it was, therefore, improper impeachment evidence. After a Walker6 hearing, the trial judge
found that defendant had voluntarily participated in the interview and that his statements were
therefore admissible. Defendant did not raise any further objections.

        During the recorded interview, defendant did not mention that he had acted in self-
defense or that Joyce had attacked him. Rather, he repeatedly denied any involvement in Joyce’s
death. When asked why he had not told his self-defense story until trial, defendant claimed to
have been “dazed and confused” as a result of alcohol withdrawal during his initial interview
with police. The prosecutor played several portions of the recorded interview for the jury to
provide it with an opportunity to assess defendant’s behavior, and then called an officer to testify
that defendant’s demeanor had been consistent throughout his 90 minute interview.

         Contrary to defendant’s assertion, defendant’s recorded interview and the testimony of an
interviewing officer were proper vehicles for the prosecutor’s introduction of defendant’s own
statements, which were clearly relevant under MRE 401 and admissible as nonhearsay, despite
being made out of court, under MRE 801(d)(2). Although defendant claims that the video and
accompanying officer testimony were inadmissible under MRE 608(b) as “specific instances of
conduct,” defendant’s novel interpretation of MRE 608(b) is simply unsupported by the plain
language of the rule or the context in which it applies. MRE 608 sets forth the rules regarding
introduction of character evidence to attack or support the credibility of a witness. Under MRE
608(b), specific instances of a witness’s conduct may, “if probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’
character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or
untruthfulness of another witness as to which character the witness being cross-examined has
testified.” It is unclear what “specific instance of conduct” defendant argues was inadmissible
here. However, neither the recording of defendant’s interview or the officer’s testimony
regarding defendant’s interview were introduced to attack defendant’s general character for
truthfulness or untruthfulness, and MRE 608(b) therefore does not apply. MRE 609(a), which
prohibits the introduction of evidence that a witness has been convicted of a crime for the
purpose of attacking the witness’s credibility, is similarly inapplicable. At no point in the
prosecution’s presentation of rebuttal evidence was a prior conviction introduced.




6
    People v Walker, 374 Mich 331; 132 NW2d 87 (1965).


                                               -16-
       Because MRE 608 and MRE 609 clearly did not prohibit the introduction of the
prosecution’s rebuttal evidence, any objections raised by defense counsel at trial would have
been overruled. Because defense counsel is not ineffective for failing to raise futile objections,
defendant is not entitled to relief on this issue. People v Cox, 268 Mich App 440, 453; 709
NW2d 152 (2005).

                             IX. HABITUAL OFFENDER STATUS

       Next, defendant argues that the trial court erred when it allowed the prosecutor to amend
the notice of habitual offender status at defendant’s sentencing hearing. Further, defendant
argues that, based on the legislature’s intent to enhance the sentences of only “habitual”
offenders, the sentencing enhancement statutes do not apply in his case. Again, we disagree.

       Because defendant failed to raise these issues for consideration by the trial court, they are
not preserved for appellate review. People v Conner, 209 Mich App 419, 423; 531 NW2d 734
(1995). We review unpreserved issues for plain error affecting defendant’s substantial rights.
Young, 472 Mich at 135. Statutory interpretation is an issue of law which this Court reviews de
novo. People v Swafford, 483 Mich 1, 7; 762 NW2d 902 (2009).

       Defendant argues that the trial court erred in allowing the prosecution to amend the notice
of habitual offender status in the information at sentencing. However, it should be noted at the
outset that the record is devoid of any evidence that the prosecutor sought to amend the
information or that defendant objected to any such amendment. Because the record on appeal
does not support defendant’s assignments of error, defendant has waived this issue. Petri, 279
Mich App at 410. However, we note that defendant’s claim is also without merit.

        Defendant was sentenced as a third habitual offender, MCL 769.11, which allows for the
enhancement of a criminal sentence if a defendant has two or more prior felony convictions.
MCL 769.11(1). MCL 769.13 governs the procedure for seeking sentence enhancement as a
habitual offender. Under MCL 769.13(1), the prosecutor may seek to enhance the sentence of a
defendant under the habitual offender statutes—MCL 769.10, MCL 769.11, or MCL 769.12—
“by filing a written notice of his or her intent to do so within 21 days after the defendant’s
arraignment.” Under MCL 767.76,

       [a]n information may be amended at any time before, during, or after trial to cure
       any defect, imperfection, or omission in form or substance, including a variance
       between the information and the proofs, as long as the accused is not prejudiced
       by the amendment and the amendment does not charge a new crime. [People v
       Higuera, 244 Mich App 429, 444; 625 NW2d 444 (2001), citing MCL 767.76.]

This Court reads MCL 769.13(1) and MCL 767.76 to prohibit amendments to the information
after the 21 day period provided in MCL 769.13(1) that would increase a defendant’s potential
sentence. People v Siterlet, 299 Mich App 180, 186; 829 NW2d 285 (2012), vac’d in part on
other grounds 495 Mich 919 (2013). This includes changes to the habitual offender notice.
People v Hornsby, 251 Mich App 462, 472–473; 650 NW2d 700 (2002).

       The felony information charging defendant with first-degree premeditated murder
provided notice that defendant would be sentenced as a third habitual offender if convicted. The
                                               -17-
information specifically listed the two prior offenses relied upon in support of the enhancement:
a 1989 breaking and entering of a vehicle, MCL 750.356a, conviction and a 1990 assault with
intent to commit murder, MCL 750.83, conviction. Defendant acknowledged both of the prior
convictions and that he had received notice of his status as a third habitual offender at his
arraignment and on the first day of trial. Defendant was therefore properly notified of the
prosecution’s decision to seek enhanced sentencing within the 21 day period required by MCL
769.13(1). At sentencing, the prosecutor reminded the court of defendant’s “prior convictions
for burglary and for assault with intent to murder,” and defendant did not object when the trial
court thereafter sentenced him as a third habitual offender. Indeed, defendant admitted to the
breaking and entering of a vehicle felony conviction, although he argued that “the Court of
Appeals threw that conviction out.”

        Presumably, defendant objects to the prosecutor’s later substitution of defendant’s 1990
felony-firearm, MCL 750.227b, conviction, which was provided for in defendant’s PSIR but
previously overlooked by the prosecutor, with defendant’s 1989 breaking and entering of a
vehicle conviction. Defendant is correct that, if neither of these convictions could be counted
under the habitual offender statutes, defendant should have been sentenced as a second habitual
offender. However, this writer would submit that both of these offenses could be counted as
prior felonies under the habitual offender statutes, and defendant cannot assert prejudice as a
result of the prosecutor’s decision to concede one of them. Indeed, while defendant claimed that
this Court reversed his 1989 breaking and entering of a vehicle conviction, he offered no
evidence of the reversal at his sentencing hearing, his resentencing hearing, or on appeal. The
prosecution could therefore have properly considered it for sentence enhancement purposes.
Defendant knew that a third habitual offender enhancement was sought as early as his
arraignment, regardless of which two of defendant’s three prior felonies was specifically listed
on the information. In any event, defendant waived any claim of error related to the amendment
of the habitual offender notice by repeatedly admitting his status as a third habitual offender.
Siterlet, 495 Mich at 919.

        In his Standard 4 brief, defendant also argues that his sentence should not be enhanced
under the habitual offender statutes because his prior felonies occurred “nearly a quarter century
apart” and hardly evidence a pattern of “habitual” offending. In support of his argument,
defendant suggests that the habitual offender statutes imply a Legislative intent to impose a time
limitation for inclusion of felony convictions. According to defendant, the use of the word
“habitual” evidences intent to include only those offenders who, based on a purported dictionary
definition of “habitual,” act under an “involuntary pattern of behavior acquired by frequent
repetition.” In interpreting statutes, this Court starts by examining the plain language of the
statute. If the statutory language is plain and unambiguous, then no judicial interpretation is
necessary or permitted, and this Court presumes that the Legislature intended the meaning it
plainly expressed. People v Mattoon, 271 Mich App 275, 278; 721 NW2d 269 (2006). “Only if
the statutory language is ambiguous may [this Court] look outside the statute to ascertain the
Legislature’s intent.” People v Haynes, 281 Mich App 27, 29; 760 NW2d 283 (2008). Further,
this Court “may read nothing into an unambiguous statute that is not within the manifest intent of
the Legislature as derived from the words of the statute itself.” Id.

     Defendant’s claim fails because the plain language of the sentence enhancement statutes,
MCL 769.10 et seq., does not limit sentence enhancement to “habitual offenders.” Indeed,

                                              -18-
despite the fact that the statutes are frequently referred to as the habitual offender statutes, the
word “habitual” does not appear in the statutes or even in their respective titles. For example,
the statute pursuant to which defendant’s sentence was enhanced, MCL 769.11, reads as follows:

       If a person has been convicted of any combination of 2 or more felonies or
       attempts to commit felonies, whether the convictions occurred in this state or
       would have been for felonies or attempts to commit felonies in this state if
       obtained in this state, and that person commits a subsequent felony within this
       state, the person shall be punished upon conviction of the subsequent felony and
       sentencing under section 131 of this chapter . . . . [MCL 769.11(1).]

The statute clearly provides for the application of sentence enhancement to any “person” who
“has been convicted of any combination of 2 or more felonies.” Identical language appears in
MCL 769.10 and MCL 769.12, though the number of prior felony convictions required for
enhancement differs in each. The statutes’ language is clear and unambiguous. They apply to all
offenders that have been convicted of a certain number of felonies or attempts to commit
felonies, regardless of when they occurred or what they say about the defendant’s character or
“habit.”

               X. SEPARATE FELONIES FOR SENTENCE ENHANCEMENT

       Next, defendant argues that the trial court erred when it treated two convictions arising
from the same transaction as separate convictions for purposes of sentencing defendant as a third
habitual offender. This issue is also unpreserved, People v Metamora Water Service, Inc, 276
Mich App 376, 383; 741 NW2d 61 (2007), and we review for plain error affecting defendant’s
substantial rights, Young, 472 Mich at 135. Statutory interpretation and constitutional issues
present issues of law, which this Court reviews de novo. Swafford, 483 Mich at 7.

        In 1989, defendant was convicted of assault with intent to commit murder and felony-
firearm, two convictions arising out of a single incident. In 1990, convictions arising out of a
single incident were treated as one offense for the purpose of enhancing a defendant’s sentence
as a habitual offender. People v Stoudemire, 429 Mich 262, 273; 414 NW2d 693 (1987),
overruled by People v Gardner, 482 Mich 41 (2008). In 2008, however, our Supreme Court
overruled Stoudemire and held that the plain language of the habitual offender statutes “directs
courts to count each separate felony conviction that preceded the sentencing offense, not the
number of criminal incidents resulting in felony convictions.” Gardner, 482 Mich at 44. On
appeal, defendant acknowledges the Supreme Court’s decision in Gardner, but argues that the
trial court’s application of Gardner’s rule to his 1989 convictions violates ex post facto laws.
Defendant’s argument lacks merit.

       Ex post facto laws are prohibited by the United States Constitution and the Michigan
Constitution. US Const, art 1, § 10; Const 1963, art 1, § 10. A statute violates the Ex Post Facto
Clauses if it “affects the prosecution or disposition of criminal cases involving crimes committed
before its effective date” and “increases the punishment.” People v McRunels, 237 Mich App
168, 175; 603 NW2d 95 (1999) (quotations and citations omitted).




                                               -19-
       In People v Callon, 256 Mich App 312, 320; 662 NW2d 501 (2003), this Court noted that
ex post facto challenges to habitual offender statutes have been rejected. The Court relied in part
on the Supreme Court’s discussion of ex post facto laws in People v Palm, 245 Mich 396; 223
NW 67 (1929). In Palm, the Supreme Court stated:

        In Cooley on Constitutional Limitations (8th Ed.) p. 553, it is said: “And the law
        is not objectionable as ex post facto which, in providing for the punishment of
        future offenses, authorizes the offender’s conduct in the past to be taken into the
        account, and the punishment to [be] graduated accordingly. Heavier penalties are
        often provided by law for a second or any subsequent offense than for the first;
        and it has not been deemed objectionable that, in providing for such heavier
        penalties, the prior conviction authorized to be taken into the account may have
        taken place before the law was passed. In such case, it is the second or
        subsequent offense that is punished, not the first.” [Id. at 402-403.]

This Court is bound by Callon and must reject defendant’s claim that the application of Gardner
in his case violates the Ex Post Facto Clauses. See MCR 7.215(J)(1) (stating that “[a] panel of
the Court of Appeals must follow the rule of law established by a prior published decision of the
Court of Appeals issued on or after November 1, 1990.”) The application of Gardner does not
increase punishment for crimes committed before it was decided, nor does Gardner’s
interpretation of the habitual offender statutes impose additional punishment for prior offenses.
Here, defendant’s assault with intent to murder and felony-firearm convictions were considered
only for the permissible purpose of enhancing the appropriate penalty for the instant conviction.
Accordingly, the trial court did not err when it considered each of defendant’s 1990 felonies as a
separate conviction and sentenced defendant as a third habitual offender.

                                       XI. COSTS AND FEES

        Next, defendant argues that the trial court abused its discretion when it denied
defendant’s request to set aside its assessment of costs and attorney fees. Because defendant
failed to raise a timely objection for the lower court’s consideration, this issue is unpreserved.
Grant, 445 Mich at 546. Ordinarily, this Court reviews unpreserved issues for plain error
affecting a defendant’s substantial rights. Carines, 460 Mich at 750. However, because
defendant is required to first contest costs and fees with the trial court, this issue is unripe for this
Court’s review.

        At the initial sentencing hearing, the trial court judge ordered defendant to pay $600 in
court costs and $600 in attorney fees. The trial court clearly had authority to impose such costs
and fees. Pursuant to MCL 769.1k, if a defendant is found guilty following a trial, the trial court
may impose fees and costs, including the expenses of providing legal assistance to the defendant.
See MCL 769.1k(b)(iv). Courts are not required to conduct an “ability-to-pay assessment”
before imposing costs and fees. However, such an assessment is required once the imposition of
a fee is enforced and the defendant challenges his ability to pay. People v Jackson, 483 Mich
271, 296; 769 NW2d 630 (2009).

      On appeal, defendant argues that because enforcement of his fees has already begun and
he made a timely objection based on his inability to pay, the trial court abused its discretion

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when it denied defendant an opportunity to contest the amount of costs and fees assessed. It is
true that, because an indigent defendant may not be required to pay costs and fees assessed under
MCL 769.1k, defendant is entitled to an ability to pay assessment once the trial court actually
enforces the fee and defendant contests his ability to pay. Id. at 292-293, 298. However,
contrary to his assertion on appeal, defendant has not properly contested his ability to pay.
Defendant did not object to the court’s assessment of costs and fees at the initial sentencing
hearing. Subsequently, he raised a blanket objection to the imposition of “costs and fees” at the
resentencing hearing, without providing a basis for the objection. At no point during either
hearing did defendant claim to be unable to pay. Even on appeal, while defendant suggests that
he should be allowed to contest his ability to pay, he does not argue that he lacks the ability to
pay. Because defendant has not contested his ability to pay with the trial court, a review of his
challenge on appeal would be inappropriate.

                                  XII. RESTITUTION ORDER

        Finally, in his Standard 4 brief, defendant argues that the trial court erred when it
imposed a restitution order without following the statutory requirements for doing so. “This
Court generally reviews an order of restitution for an abuse of discretion.” People v Dimoski,
286 Mich App 474, 476; 780 NW2d 896 (2009). However, “[t]he proper application of MCL
780.766(2) and other statutes authorizing the assessment of restitution at sentencing is a matter
of statutory interpretation, which we review de novo.” People v McKinley, 496 Mich 410, 415;
852 NW2d 770 (2014).

        The statutes governing restitution in criminal cases contain both a time limit and a
requirement that the trial court disclose information relied upon when setting the restitution
amount. MCL 780.766 directs a trial court to impose restitution “when sentencing a defendant
convicted of a crime.” MCL 780.766(2). Although the trial court may amend a restitution order
at the request of the prosecutor, the victim, or the defendant at any time “based upon new
information,” MCL 780.766(22), no statutory authority exists to support the trial court’s
imposition of a new restitution order after sentencing. Further, MCL 780.766(3) and (4) list the
appropriate considerations for determining the amount of restitution, and MCL 780.767(3)
mandates disclosure to both the defendant and the prosecutor of “all portions of the presentence
or other report” the trial court relies upon “[i]n determining the amount of restitution to order.”

         At defendant’s original sentencing hearing, the trial court did not impose a restitution
order. The trial court considered restitution, and explained: “[a]nd I don’t know if there is any
restitution[;] it seems like there should be restitution in this case[;] if there is any he has to pay
it.” The prosecutor told the trial court that he would “check on that,” but whether the prosecutor
ever did so is unclear. The presentence report recommended imposition of costs, fees, and a
crime victim assessment, but “recommended restitution be set at zero.” Both the original
judgment of sentence and the amended judgment of sentence are devoid of a restitution order.
At the resentencing hearing, the trial court ordered defendant to pay state costs, a crime victim
assessment, $600 in court costs, and $600 in attorney fees—all amounts previously assessed and
included in the original judgment of sentence—and the issue of restitution was not raised.
However, when the final judgment of sentence was entered after the resentencing hearing, it
inexplicably ordered defendant to pay $600 in restitution.


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        It may be the case that the inclusion of the restitution order was simply a mistake by the
order’s drafter. However, given that courts speak through their written judgments, not their oral
statements, we must conclude that the judgment of sentence accurately reflects the sentence.
People v Jones, 203 Mich App 74, 82; 512 NW2d 26 (1993) (noting that “[a] court speaks
through written judgments and orders rather than oral statements.”) Thus, we must assume that
the restitution order was purposefully imposed without notice to defendant. In that case, the
imposition of the restitution order clearly “fell short of the statutory requirements.” People v
White, 212 Mich App 298, 316; 536 NW2d 876 (1995).

        Restitution encompasses only those losses which are easily ascertained and measured and
are a direct result of a defendant’s criminal acts. People v Tyler, 188 Mich App 83, 89; 468
NW2d 537 (1991). Before the imposition of a restitution order, the trial court is required to
consider whether defendant’s crime “result[ed] in damage to or loss of destruction of property,”
or “result[ed] in physical or psychological injury to the victim.” MCL 780.766(3) and (4).
Without any record indicating that the trial court engaged in such consideration, “it is impossible
in the case at bar to ascertain whether the restitution order was for allowable damages and in an
amount permitted.” White, 212 Mich App at 316. Indeed, without supporting evidence, and in
light of the PSIR’s clear recommendation that restitution be assessed at zero, the restitution order
is “essentially arbitrary and constitutes an abuse of the trial court’s discretion.” Id. We therefore
vacate the restitution award and remand for reconsideration of the restitution order. Tyler, 188
Mich App at 89-90. On remand, the trial court must comply with the statutory procedures
outlined in MCL 780.766 and MCL 780.767, or correct any drafting errors in the judgment of
sentence. See MCR 6.435(A); MCR 7.216(A)(7); People v Brown, 492 Mich 684, 700 n 52; 822
NW2d 208 (2012) (“Where an error in the judgment of sentence rendered the sentence
inconsistent with the sentence the court intended, we have ordered that the judgment of sentence
be amended.”)

       We affirm defendant’s conviction and sentence but vacate the restitution order and
remand for reconsideration of the restitution award or correction of errors in the judgment of
sentence. We do not retain jurisdiction.



                                                              /s/ Donald S. Owens
                                                              /s/ Stephen L. Borrello
                                                              /s/ Cynthia Diane Stephens




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