                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 4, 2014
               Plaintiff-Appellee,

v                                                                  No. 315747
                                                                   Genesee Circuit Court
ANTHONY DUNBAR,                                                    LC No. 2012-031104-FC

               Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

v                                                                  No. 315991
                                                                   Genesee Circuit Court
ERIC ROSHAWN SMITH,                                                LC No. 2012-031109-FC

               Defendant-Appellant.


Before: RIORDAN, P.J., and SAAD and TALBOT, JJ.

PER CURIAM.

       Defendants appeal their separate jury trial convictions under MCL 750.529, MCL
750.224f, and MCL 750.227b. For the reasons stated below, we affirm both convictions.

                          I. FACTS AND PROCEDURAL HISTORY

        Defendants robbed a female victim in the parking lot of the Clover Tree apartments in
Flint Township. The victim testified that after she parked her car, a man wearing black shorts
and a black shirt approached her and asked for the time. He then pulled a gun and demanded her
money. The victim saw a second man nearby wearing a white tank top, whom she believed was
acting as a lookout. The victim threw her purse, keys, and groceries to the ground, and ran to her
apartment where she immediately called the police. Responding officers detained the two
defendants and a third person, Averee Littlejohn, at a nearby bus stop. The victim was brought
to the bus stop, where she identified defendant Eric Smith as the gunman and defendant Anthony
Dunbar as the lookout. The police found a handgun inside Littlejohn’s purse and $210 cash in

                                               -1-
Littlejohn’s bra. She was also charged in the matter, but pleaded guilty to a reduced charge
pursuant to a plea agreement whereby she agreed to testify against the two defendants.

        The prosecution subsequently charged Dunbar and Smith with identical charges of armed
robbery, MCL 750.529, felon in possession of a firearm, MCL 750.224f, and possession of a
firearm during the commission of a felony, MCL 750.227b. They were charged jointly, but
before separate juries.

       Dunbar’s jury convicted him of the felon-in-possession charge, but acquitted him of the
remaining crimes. Smith’s jury convicted him of all three charges. The trial court sentenced
Smith as a fourth habitual offender, MCL 769.12, to concurrent prison terms of 240 to 360
months for the armed robbery conviction, and 58 to 120 months for the felon-in-possession
conviction, to be served consecutive to a two-year term of imprisonment for the felony-firearm
conviction.

        On appeal, Dunbar argues that the prosecution did not present sufficient evidence to
sustain his conviction. Smith claims that the prosecution: (1) did not present sufficient evidence
to sustain his conviction; and (2) committed misconduct. He also asserts that the trial court erred
when it: (1) required him to file notice of an alibi defense; (2) excluded evidence of a text
message supposedly sent by Littlejohn; and (3) sentenced him under offense variables (OV) 4
and 14.

                            II. DEFENDANT DUNBAR’S APPEAL

        A challenge to the sufficiency of the evidence is reviewed de novo. People v Henry
(After Remand), 305 Mich App 127, 142; 854 NW2d 114 (2014), lv pending. We review the
evidence in the light most favorable to the prosecution to determine whether “a rational trier of
fact could find that the evidence proved the essential elements of the crime beyond a reasonable
doubt.” People v Harverson, 291 Mich App 171, 175; 804 NW2d 757 (2010). The testimony of
a single witness can suffice to persuade a jury of a defendant’s guilt beyond a reasonable doubt.
People v Jelks, 33 Mich App 425, 432; 190 NW2d 291 (1971). Moreover, “it is well settled that
this Court may not attempt to resolve credibility questions anew.” People v Gadomski, 232 Mich
App 24, 28; 592 NW2d 75 (1998).

       Here, Dunbar denies that he was ever in possession of a firearm, and unconvincingly
argues that the prosecution presented insufficient evidence to secure his felon-in-possession
conviction under MCL 750.224f. The prosecution actually presented more than sufficient
evidence to convict Dunbar of violating the statute.

        Littlejohn testified that Dunbar put a firearm in her purse when they met at the bus stop
soon after the robbery was committed. This testimony was sufficient to prove Dunbar’s
possession of a firearm. Although Dunbar argues that the jury determined portions of
Littlejohn’s other testimony were not credible, inasmuch as it acquitted him of the armed robbery
and felony-firearm charges, the jury was “free to believe or disbelieve, in whole or in part, any of




                                                -2-
the evidence presented.” People v Perry, 460 Mich 55, 63; 594 NW2d 477 (1999). It clearly
believed Littlejohn’s testimony as to the firearm, and, again, we “may not attempt to resolve
credibility questions” on appeal. Gadomski, 232 Mich App at 28.1

       Accordingly, the prosecution presented sufficient evidence to sustain Dunbar’s
conviction under MCL 750.224f, and his arguments to the contrary are without merit.

                               III. DEFENDANT SMITH’S APPEAL

                                A. SUFFICIENCY OF EVIDENCE

        Identity is an essential element in a criminal prosecution, and the prosecutor must prove
the defendant’s identity as the perpetrator of a charged offense beyond a reasonable doubt.
People v Oliphant, 399 Mich 472, 489; 250 NW2d 443 (1976); People v Kern, 6 Mich App 406,
409-410; 149 NW2d 216 (1967). Positive identification by a witness may be sufficient to
support a defendant’s conviction. People v Davis, 241 Mich App 697, 700; 617 NW2d 381
(2000). “The credibility of identification testimony is a question for the trier of fact that we do
not resolve anew.” Id.

        Here, Smith wrongly asserts that the prosecution presented insufficient evidence to
establish his identity as the person who robbed the victim. The victim identified Smith as the
gunman who robbed her, both when the police brought her to a nearby bus stop briefly after the
offense, and again at trial. The victim had previously ruled out another suspect the police asked
her to view. Although the victim was ambivalent about identifying Smith at the preliminary
examination, she explained at trial that her ambivalence was caused by defendant’s behavior—
the victim said she felt intimidated by a “hissy fit” Smith threw when she attempted to identify
him.

        Moreover, the jury heard other testimony that supported the reliability of the victim’s
identification testimony, such as her descriptions of the perpetrators’ clothing and appearances to
the 911 operator and a responding officer after the robbery.2 Her descriptions of the gunman’s
clothing and facial hair accurately described Smith’s clothing and facial hair at the time of his
arrest. Although Smith argues that the victim failed to mention other distinguishing marks and
features about him, and inaccurately described him as dark-skinned, it was up to the jury to
determine what effect, if any, those matters had on the weight and reliability of the victim’s


1
  Defendant also wrongly asserts that the jury verdict is inconsistent. The victim testified that
she believed that the man in the white tank top (identified as Dunbar) acted as a lookout, but she
did not say that the man made any overt actions in furtherance of the robbery. The jury might
have entertained a reasonable doubt whether Dunbar actually participated in the robbery, but still
believed he possessed the firearm that Littlejohn said he placed in her purse. And, in any event,
juries are allowed to return inconsistent verdicts. People v Lewis, 415 Mich 443, 449; 330
NW2d 16 (1982).
2
    The victim gave these descriptions before the police took her to view any suspects.


                                                 -3-
identification testimony. And, again, we defer to the trier of fact’s findings regarding the
credibility of identification testimony. Davis, 241 Mich App at 700. The victim’s testimony was
thus sufficient to establish Smith’s identity as the gunman beyond a reasonable doubt.



                                    B. ALIBI DISCLOSURE

        Before trial, the prosecutor objected to Smith’s presentation of an alibi defense, including
through his own testimony, because he had not filed a notice of alibi as required by MCL 768.20.
The trial court held that Smith could testify in support of his alibi if he provided a written notice
stating the substance of his alibi. Counsel’s notice stated that Smith was with a cousin at the
Clover Tree apartment complex at the time of the robbery. A police detective then questioned
Smith about his alibi. Smith told the officer that he was with his cousin, “Dre,” at the Clover
Tree apartments, but he denied knowing “Dre’s” full or last name. Smith eventually stated that
Dre was Andre Johnson, that they were not really cousins, and that Johnson was unlikely to
testify because of outstanding warrants.

      Despite the trial court’s extensive efforts to accommodate Smith’s dubious alibi defense,
he now asserts that the trial court interfered with his constitutional right to present a defense
when it: (1) required him to file a notice of alibi under MCL 768.20; and (2) supposedly
compelled him to answer the detective’s questions on his alibi in violation of his Fifth
Amendment privilege against self-incrimination.

                                  1. STANDARD OF REVIEW

        Because Smith failed to raise these constitutional claims at trial, our review is limited to
plain error affecting his substantial rights. People v Hanks, 276 Mich App 91, 92; 740 NW2d
530 (2007). “To establish plain error requiring reversal, a defendant must demonstrate that 1)
error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error
affected substantial rights.” Id. (citation and internal quotations omitted). Issues involving the
interpretation of a statute or constitutional provision are reviewed de novo. People v Perkins,
280 Mich App 244, 248; 760 NW2d 669 (2008).

       The primary goal of statutory interpretation is to give effect to the intent of the
Legislature. People v Likine, 492 Mich 367, 387; 823 NW2d 50 (2012). “The first step is to
review the language of the statute itself. If the statute is unambiguous on its face, the Legislature
will be presumed to have intended the meaning expressed, and judicial construction is neither
required nor permissible.” Id. Unambiguous language must be enforced as written. People v
Acosta-Baustista, 296 Mich App 404, 407; 821 NW2d 169 (2012). “[N]othing will be read into
a clear and unambiguous statute that is not within the manifest intent of the Legislature as
derived from the language of the statute itself.” Id. at 408 (citation and internal quotation marks
omitted).

                                          2. MCL 768.20

         MCL 768.20 requires a defendant to file a notice of alibi defense at least 10 days before
trial. In relevant part, it provides:

                                                -4-
       If a defendant in a felony case proposes to offer in his defense testimony to
       establish an alibi at the time of the alleged offense, the defendant shall at the time
       of arraignment on the information or within 15 days after that arraignment but not
       less than 10 days before the trial of the case, or at such other time as the court
       directs, file and serve upon the prosecuting attorney a notice in writing of his
       intention to claim that defense. The notice shall contain, as particularly as is
       known to the defendant or the defendant's attorney, the names of witnesses to be
       called in behalf of the defendant to establish that defense. The defendant's notice
       shall include specific information as to the place at which the accused claims to
       have been at the time of the alleged offense. [MCL 768.20(1).]

        In turn, MCL 768.21 states that “[i]f the defendant fails to file and serve the written
notice prescribed in section 20 . . . , the court shall exclude evidence offered by the defendant for
the purpose of establishing an alibi . . . .” (Emphasis added.)

        The first sentence of MCL 768.20(1) describes when the prescribed alibi notice must be
filed, namely, “[i]f a defendant . . . proposes to offer in his defense testimony to establish an alibi
at the time of the alleged offense.” The reference to “testimony” does not distinguish between
testimony offered by a defendant and testimony offered by witnesses other than the defendant.
The second and third sentences describe what type of information an alibi notice “shall” include.
Although the requirement in the second sentence that the notice specify “the names of witnesses
to be called in behalf of the defendant” suggests that a defendant may call other witnesses in
support of an alibi defense, the third sentence stands alone and requires the alibi notice to
“include specific information as to the place at which the accused claims to have been at the time
of the alleged offense.” There is no suggestion that this latter requirement does not apply when a
defendant intends to “offer in his defense testimony to establish an alibi at the time of the alleged
offense,” but the defendant does not intend to call independent witnesses.

        Here, defendant incorrectly claims that the trial court erred when it held that MCL 768.20
applies when the defendant is the only witness testifying in support of an alibi defense. There is
nothing in the statute that suggests that the Legislature entertained any such exemption, and
defendant’s assertion to the contrary violates the proscription against reading terms into a statute
that are not expressed by the statutory language.3 Acosta-Baustista, 296 Mich at 408. The trial
court thus correctly applied MCL 768.20 to defendant and forced him to comply with its
mandates.4



3
  Defendant’s citation to People v Merritt, 396 Mich 67; 238 NW2d 31 (1976), is poorly
reasoned and irrelevant. That case interpreted an older version of MCL 768.20 that was
subsequently amended to mandate that a defendant provide notice of his alibi defense, even
where the defendant is the only source of the information for the notice.
4
  We also reject Smith’s argument that the trial court improperly compelled him to submit to
police questioning on his alleged alibi, in violation of his Fifth Amendment rights. People v
Wyngaard, 462 Mich 659, 671–672; 614 NW2d 143 (2000). There is no evidence that he was
compelled to submit to police questioning. The detective at the questioning testified that he


                                                 -5-
                      C. EXCLUSION OF TEXT MESSAGE EVIDENCE

        The trial court’s evidentiary rulings, including whether evidence has been properly
authenticated, are reviewed for an abuse of discretion. People v Ford, 262 Mich App 443, 460;
687 NW2d 119 (2004). “A trial court abuses its discretion when its decision falls outside the
range of principled outcomes.” People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010)
(quotation marks and citation omitted). MRE 901(a) governs the authentication of evidence, and
provides that: “[t]he requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter in question is
what its proponent claims.”

        Here, Smith says that the trial court erred when it excluded a text message purportedly
sent from Littlejohn to Quentin Kayhee stating, “tell Eric I’m sorry, but I know Chuck” to
explain why she testified against defendant Smith. Once again, Smith’s claim is incorrect. To
admit the text message under MRE 901(a), Smith, as a proponent of the evidence, needed to
present evidence sufficient to support a finding that the text message was what Smith said it
was—namely, a text message sent by Littlejohn to Quentin Kayhee. Moreover, because the
message was offered to show that Littlejohn had falsely accused Smith, its relevance depended
on a showing that it was actually sent by Littlejohn.5

        Smith presented evidence that the text message came from a number assigned to
Littlejohn’s phone. Although that evidence was sufficient to support a finding that the text
message was transmitted from Littlejohn’s phone, that alone did not support a finding that it was
Littlejohn who sent the message. And there was substantial evidence that Littlejohn did not send
the message: Littlejohn testified that she did not have exclusive control of her phone at the time
the text message was sent, she denied sending the message, the message did not appear in the
outbox folder on her phone, and she explained that she did not even have Kayhee’s phone
number or any reason to have his number.

        Under these circumstances, defendant Smith failed to satisfy his burden under MRE
901(a) of presenting evidence sufficient to support a finding that the text message was sent by
Littlejohn. Accordingly, the trial court properly excluded the message on the ground that it had
not been authenticated.

                               D. PROSECUTOR’S CONDUCT6


asked defense counsel if he could discuss the alibi with Smith, thus indicating that Smith agreed
to waive his Fifth Amendment right with counsel’s consent and approval.
5
    See MRE 401.
6
  Smith asserts that the prosecution committed misconduct when it requested that Smith provide
notice of his alibi in accordance with MCL 768.20(1). As noted, MCL 768.20(1) required Smith
to provide notice of his alibi defense. And he was not compelled to submit to police questioning
on his alibi. Accordingly, the prosecutor could not possibly have committed misconduct in
connection with MCL 768.20(1).


                                                -6-
        Claims of prosecutorial misconduct are generally reviewed de novo to determine whether
the defendant was denied a fair and impartial trial. People v Ackerman, 257 Mich App 434, 448;
669 NW2d 818 (2003). Unpreserved claims of prosecutorial misconduct are reviewed for plain
error affecting the defendant’s substantial rights. People v Gibbs, 299 Mich App 473, 482; 830
NW2d 821 (2013).

                                         1. PLAIN ERROR

         Here, Smith asserts that the prosecutor engaged in misconduct when, shortly before trial,
he sent an email to the victim that contained a photograph of Smith. Although the prosecutor
conceded at trial that it was improper of him to send the photo to the victim shortly before trial,
defendant Smith did not object to the victim’s testimony regarding the photograph when it was
presented. Further, after the prosecutor’s concession of error, the trial court ruled that Smith
would be given an additional opportunity to question the victim about her identification, and
Smith did not object to this procedure or request some other remedy, such as a Wade7 hearing,
mistrial, or that the victim’s identification testimony be either suppressed or stricken. Therefore,
this issue is unpreserved. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994).

        Because the prosecutor conceded that it was improper of him to send Smith’s photograph
to the victim, Smith has established a plain error.

                          2. DEFENDANT’S SUBSTANTIAL RIGHTS

        An identification procedure “violates a defendant’s right to due process of law when it is
so impermissibly suggestive that it gives rise to a substantial likelihood of misidentification.”
People v Gray, 457 Mich 107, 111; 577 NW2d 92 (1998) (footnote omitted). “[A]n improper
suggestion often arises when ‘the witness when called by the police or prosecution either is told
or believes that the police have apprehended the right person.’” Id., quoting People v Anderson,
389 Mich 155, 178; 205 NW2d 461 (1973).8 “Moreover, when ‘the witness is shown only one
person or a group in which one person is singled out in some way, he is tempted to presume that
he is the person.’” Gray, 457 Mich at 111, quoting Anderson, 389 Mich at 178.

        The court must evaluate the fairness of an identification procedure in light of the totality
of the circumstances to ascertain whether the procedure qualifies as so impermissibly suggestive
that it gave rise to a very substantial likelihood of irreparable misidentification. People v
Murphy (On Remand), 282 Mich App 571, 584; 766 NW2d 303 (2009). If a witness is exposed
to an impermissibly suggestive pretrial identification procedure, the witness’s in-court
identification will not be allowed unless the prosecution shows by clear and convincing evidence
that there is an independent basis for the in-court identification sufficient to purge the taint of the


7
    United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).
8
  In People v Hickman, 470 Mich 602, 603; 684 NW2d 267 (2004), the Michigan Supreme Court
overruled Anderson to the extent that it “goes beyond the constitutional text and extends the right
to counsel to a time before the initiation of adversarial criminal proceedings . . . .”


                                                 -7-
illegal identification. People v Colon, 233 Mich App 295, 304; 591 NW2d 692 (1998). The
Court may hold an evidentiary hearing pursuant to United States v Wade, 388 US 218; 87 S Ct
1926; 18 L Ed 2d 1149 (1967), to determine whether the witness has an independent basis for an
in-court identification. See People v Kurylczyk, 443 Mich 289, 307; 505 NW2d 528 (1993).

        After it became clear that the prosecutor had sent Smith’s photo to the victim shortly
before trial, Smith did not move for suppression of the victim’s in-court identification, demand a
Wade hearing, or request a mistrial, even after the prosecutor conceded that his conduct was
improper. Instead, the trial court permitted Smith an additional opportunity to cross-examine the
victim about her identification of him as the gunman. Because Smith failed to request a Wade
hearing, the trial court did not make any findings regarding the victim’s ability to identify him
independent of the e-mail photo. Accordingly, we must examine the available record to
determine whether the e-mail photo likely affected Smith’s substantial rights because the victim
lacked an independent basis for her in-court identification of him.

       The following factors are used to determine whether an independent basis exists for the
admission of an in-court identification:

         (1) [P]rior relationship with or knowledge of the defendant; (2) opportunity to
         observe the offense, including length of time, lighting, and proximity to the
         criminal act; (3) length of time between the offense and the disputed
         identification; (4) accuracy of description compared to the defendant’s actual
         appearance; (5) previous proper identification or failure to identify the defendant;
         (6) any prelineup identification lineup of another person as the perpetrator; (7) the
         nature of the offense and the victim’s age, intelligence, and psychological state;
         and (8) any idiosyncratic or special features of the defendant. [Davis, 241 Mich
         App at 702–703.]

        According to the record developed at trial, the victim looked at the gunman’s face during
the offense when he asked her for the time, and told her, “I’m not playing with you, bitch” while
pointing a gun in her face. Briefly after she was robbed, the victim provided a description of the
gunman’s general physical appearance and clothing, which closely resembled Smith’s
appearance and clothing at the time of his arrest.9

         Before identifying Smith, the victim ruled out another suspect that the police had asked
her to view. The victim was thereafter taken to a bus stop near the crime scene where she
identified Smith as the gunman who robbed her. The victim also identified Smith at trial, and
testified that her identification was not based on the e-mail photo she received before trial, but
rather on her independent memory of the offense. The victim also offered an explanation for her
hesitancy to affirmatively identify defendant Smith at the preliminary examination.

        Together, these factors support the existence of an independent basis for the victim’s
identification testimony. Because the record contains an independent basis for the victim’s


9
    Again, Smith was arrested soon after the robbery occurred.


                                                 -8-
identification of Smith, and the trial court afforded Smith ample opportunity to cross-examine
the victim on her identification testimony—including the effect, if any, of the e-mail
photograph—Smith has not established that the prosecutor’s improper conduct in sending the e-
mail photo to the victim shortly before trial affected his substantial rights.10

                     E. SCORING OF THE SENTENCING GUIDELINES

        “Under the sentencing guidelines, the circuit court’s factual determinations are reviewed
for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the
scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question
of statutory interpretation, which an appellate court reviews de novo.” Id.

      Here, Smith unconvincingly argues that the trial court erred in assessing 10 points each
OVs 4 and 14 of the sentencing guidelines.

                                              1. OV 4

          OV 4 assigns points based on psychological injury to a victim. Ten points are scored
when “[s]erious psychological injury requiring professional treatment occurs to a victim.” MCL
777.34(1)(a). In scoring OV 4, “the fact that treatment has not been sought is not conclusive.”
MCL 777.34(2). In this case, the victim testified that she felt terrified, traumatized, and
overwhelmed by the robbery. She was scared at the time of the preliminary examination, and
still felt scared at the time of trial. According to the presentence report, the victim was afraid to
go out at night or leave her home. She quit her job because her employer would not allow her
time off from work to deal with the trauma caused by the robbery. This evidence therefore
supports the trial court’s 10-point score for OV 4. See People v Apgar, 264 Mich App 321, 329;
690 NW2d 312 (2004).

                                             2. OV 14

       OV 14, which takes the offender’s role into account, is scored at 10 points if “[t]he
offender was a leader in a multiple offender situation.” MCL 777.44(1)(a). Smith argued at
sentencing that he was not the leader in the robbery because Littlejohn testified that Dunbar had
control over the gun and the money. However, Littlejohn was not present when the robbery
occurred and her knowledge of the events was second-hand. According to the victim, Dunbar
appeared to be positioned as a lookout while defendant Smith took the more active role in
approaching the victim and committing the robbery. In light of the evidence that it was


10
   Smith also cites non-applicable case law to argue that the prosecutor knowingly presented
false testimony by asking the victim questions on his identification. There is nothing in the
record to suggest that the victim’s identification testimony was false, much less that the
prosecutor knew it was false. And, as observed above, the trial court afforded Smith ample
opportunity to cross-examine the victim regarding her identification testimony—an opportunity
that protected his right to a fair trial.


                                                 -9-
defendant Smith who approached the victim and demanded her money while armed with a gun,
and that Dunbar’s role was passive, the trial court did not err in finding that defendant Smith was
the leader. Therefore, the court did not err in assessing 10 points for OV 14.11

       Affirmed.



                                                            /s/ Michael J. Riordan
                                                            /s/ Henry William Saad
                                                            /s/ Michael J. Talbot




11
   Defendant also makes a multitude of arguments in his Standard 4 brief, some of which his
attorney raised at trial, which we have rejected. The remaining issues are totally without merit.


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