               If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                    revision until final publication in the Michigan Appeals Reports.




                             STATE OF MICHIGAN

                              COURT OF APPEALS


    PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                      March 5, 2020
                  Plaintiff-Appellee,

    v                                                                 No. 340893
                                                                      Clinton Circuit Court
    WILLIAM MATTHEW WORKMAN,                                          LC No. 17-009801-FH

                  Defendant-Appellant.


Before: MURRAY, C.J., and STEPHENS and SHAPIRO, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions 1 of two counts of breaking and
entering a building with intent to commit a larceny, MCL 750.110, and one count of unlawfully
driving away an automobile (UDAA), MCL 750.413. Defendant was sentenced as a fourth felony
habitual offender to a prison term of 15-40 years. We affirm in part and remand in part.

                                         I. BACKGROUND

        Defendant’s convictions arise from offenses committed in the early morning hours of
December 22 and 23, 2016. On December 22, 2016, MPC Cashway Lumber (MPC) a business in
Clinton County, Michigan was broken into in the middle of the night. Shortly thereafter, a 2005
Ford Focus was stolen from TL Contracting (TL), a neighboring business. On the same day, a
pole barn was broken into on Taft Road in Bingham Township, Clinton County, Michigan. On
December 23, 2016, shortly after midnight, a firearm was stolen out of a vehicle parked in a
subdivision north of Fowler around midnight. Both the TL and Taft Road locations had
surveillance video of the break-ins that occurred on December 22. Defendant was known to law
enforcement in Clinton County at the time and was a suspect in some other criminal events that
occurred during this period. After reviewing the surveillance video, which matched defendant’s
physique, an investigation began into defendant for the December break-ins. Defendant was
arrested on December 28, 2016, for a parole violation by a St. Johns’ police officer and held at the


1
    The trial court dismissed one count of larceny of a firearm.
Clinton County Jail. While at the jail, defendant asked a corrections officer if he could have his
phone back to make a call. The officer gave him the phone and defendant performed a factory
reset.

        On January 3, 2017, Deputy Michael Leasher, a forensic cell phone analyst for the Clinton
County Sheriff’s Department, and Detective Sean Dush, a lieutenant with the Clinton County
Sheriff’s Office, went to the home of defendant’s girlfriend, Christine Moggo. Moggo had visited
the defendant in the Clinton County jail on December 31, 2016. They informed her that they had
viewed the video from her visit and wanted to know what was on the paper that defendant showed
her during the visit. She told them that the note contained the username and password for his
Google account and that he asked her to delete the account, specifically the Google Maps
application. Moggo was unable to log into the account with the password given to her by the
defendant so she reset the password. However, she had not deleted the account. Using the
password provided to him by Moggo, Deputy Leasher logged into defendant’s Google account
and changed the password in order to preserve the account. He then obtained a search warrant for
defendant’s phone and for the Google accounts connected to that phone. Upon receiving the
warrant, he did a phone dump using software called Cellebrite and then reviewed all the tracking
data from defendant’s phone including the GPS locations recorded.

        At trial, Deputy Leasher testified that he used the Google Maps’ information he had
obtained from defendant’s phone to generate a map and provided a timeline of the phone’s
locations on December 22 and 23, 2016. He testified that beginning at midnight on December 22,
the map showed the location of defendant’s phone to be at 1207 Cleo Street in Lansing where the
defendant resided. From there the phone’s GPS location showed the phone was transported to the
location of MPC Lumber and its neighboring business TL Contracting which was in walking
distance from MPC. From TL Contractors the phone was tracked to Taft Road and was there
roughly for about a half hour. From Taft Road, the phone was tracked back to defendant’s
residence at Cleo Street and then to defendant’s girlfriend’s apartment in St. Johns. Regarding
December 23, he testified that the phone’s GPS location showed that the phone had been
transported north of Fowler sometime between 12:14 a.m. and 1:01 a.m. From there the phone
was tracked toward Lansing where it was stationary at Clark Rd from 3:44 a.m. to 4:20 a.m. When
the phone started moving again, it was tracked to defendant’s house on Cleo Street. Deputy
Leasher also testified that the officers retrieved a backpack from defendant’s brother’s house
(where defendant was residing) and that backpack or one similar to it was seen on the surveillance
video from TL Contractors security on the night of the break-in. Detective Dush testified that a
bike that belonged to defendant’s brother was found by the gate of TL Contractors.

        Defendant’s friend, Delton Warren and Moggo also testified. Warren testified that the
defendant called him in the early morning hours of December 23 and asked him for a ride. When
Warren picked him up, defendant first told Warren that he had been driving a girlfriend’s car when
he swerved off the road into a ditch trying to avoid hitting a deer. He then later admitted that the
car he had been driving was stolen. Moggo testified that she found a ski mask in her home after
her interview with the detectives and turned it over to the police. The mask matched the mask
seen on the surveillance video worn by the individual who stole the Ford Focus from TL
Contracting.

       The jury returned a guilty verdict from which defendant now appeals.


                                                -2-
                        II. UNREASONABLE SEARCH AND SEIZURE

       Defendant first argues that the evidence obtained from the search of his Google Cloud
account should have been suppressed because the search was “warrantless” given that the warrant
procured by the police did not authorize the search of his Cloud data. We disagree.

       Defendant did not file a motion to suppress in the trial court, thus this issue is unpreserved
on appeal. This Court reviews unpreserved issues for plain error affecting the defendant’s
substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

       In general, law enforcement officers are required to obtain a warrant before executing a
search. “The Fourth Amendment of the United States Constitution and its counterpart in the
Michigan Constitution guarantee the right of persons to be secure against unreasonable searches
and seizures.” People v Kazmierczak, 461 Mich 411, 417; 605 NW2d 667 (2000) (citations
omitted). People v Frohriep, 247 Mich App 692, 702; 637 NW2d 562 (2002). Searches without
a warrant are unreasonable “subject only to a few specifically established and well-delineated
exceptions.” Katz v United States, 389 US 347, 357; 88 S Ct 507; 19 L Ed 2d 576 (1967).

       The search warrant obtained by the police in this matter included the following language:

       The PROPERTY to be searched for and seized, if found, is specifically described
       as: Subscriber and Call Logs, to include Cloud, SMS and MMS data for the phone
       number 517-204-4575. To include all Email’s [sic] to and from account
       worksrightl@gmail.com. To include subscriber name, means of account payment,
       credit cards used, locations of payments and the previously mentioned log and file
       data for the dates of September 14, 2016 through December 31, 2016. Also any
       IP numbers associated with or used to place calls from.

We find, contrary to the defendant’s argument, that the warrant specified defendant’s Google
Cloud data. Accordingly, the evidence procured from the search of defendant’s Google Cloud
account was not unlawfully obtained by means of a “warrantless” search.

                                 III. INSUFFICIENT EVIDENCE

       Defendant next contends that there was no direct evidence to support the prosecution’s
argument that defendant was the individual who logged into his Google Cloud account nor the
person carrying his phone in the early morning hours of December 22-23, 2016. We disagree.

         In reviewing a claim of insufficient evidence, the evidence presented below must be viewed
in the light most favorable to the prosecution; the test is whether a rational trier of fact could have
found that the essential elements of the crime were proven beyond a reasonable doubt. People v
Wolfe, 440 Mich 508, 515-516; 489 NW2d 748 amended on other grounds 441 Mich 1201 (1992);
People v Hutner, 209 Mich App 280, 282; 530 NW2d 174 (1995).

       Contrary to defendant’s argument, direct evidence is not required. “Circumstantial
evidence and reasonable inferences arising therefrom can sufficiently establish the elements of a
crime.” People v Schultz, 246 Mich App 695, 702; 635 NW2d 491 (2001). To sustain a conviction
for breaking and entering with intent to commit larceny, it must be established that “(1) the


                                                 -3-
defendant broke into a building, (2) the defendant entered the building, and (3) at the time of the
breaking and entering, the defendant intended to commit a larceny therein.” People v Toole, 227
Mich App 656, 658; 576 NW2d 441 (1998). The elements of UDAA are: “(1) possession of a
vehicle, (2) driving the vehicle away, (3) that the act is done willfully, and (4) the possession and
driving away must be done without authority or permission.” People v Hendricks, 200 Mich App
68, 71; 503 NW2d 689 (1993). It is undisputed that someone broke into MPC Lumber and then
later a pole barn on Taft Road and stole property. There is also no dispute that someone stole a
vehicle from TL Contracting’s parking lot.

        We conclude that the evidence on the issue of whether the defendant was the perpetrator
of the crimes was sufficient. In addition to Deputy Leasher’s testimony regarding the location of
the cell phone, there was also testimony given by him that defendant’s phone was used to look up
the location of MPC on December 22 while the phone was located at 1207 Cleo Road, where the
defendant was residing with his brother. As noted previously, the phone was tracked to the
locations of the break-ins and the car theft at times contemporaneous with the crimes. Moggo,
who both purchased and paid for the phone, testified that the defendant was very protective of his
phone and did not allow others access to it.

        Not only was there evidence that linked defendant’s phone to the location of the crimes,
but defendant’s friend, Delton Warren, also testified to defendant’s admission that the car he drove
into a ditch on the 23rd was stolen. Additionally, a backpack recovered from defendant’s room
and a ski mask recovered from defendant’s ex-girlfriend’s house matched the backpack and mask
seen in the video taken from TL Contracting. Lastly, when the police responded to the MPC break
in, they found defendant’s brother’s bike leaning on a fence outside.

        Viewing the circumstantial evidence and reasonable inferences in the light most favorable
to the prosecution, there was sufficient evidence to convince a jury beyond a reasonable doubt that
defendant committed the crimes for which he was convicted.

                            IV. PROSECUTORIAL MISCONDUCT

       Defendant argues that the prosecutor and its witness misled the jury regarding the process
by which the detective gained access to defendant’s Google Cloud account. We disagree.

        Defendant failed to object to the prosecutor’s statements so this issue is unpreserved.
“Unpreserved issues are reviewed for plain error affecting substantial rights.” People v Bennett,
290 Mich App 465, 475; 802 NW2d 627 (2010). “Reversal is warranted only when plain error
resulted in the conviction of an actually innocent defendant or seriously affected the fairness,
integrity, or public reputation of judicial proceedings.” Id. at 475-476 (citation omitted).

        “Although a prosecutor may not argue facts not in evidence or mischaracterize the evidence
presented, the prosecutor may argue reasonable inferences from the evidence.” People v Watson,
245 Mich App 572, 588; 629 NW2d 411 (2001). “To determine if a prosecutor’s comments were
improper, we evaluate the prosecutor’s remarks in context, in light of defense counsel’s arguments
and the relationship of these comments to the admitted evidence.” People v Seals, 285 Mich App
1, 22; 776 NW2d 314 (2009).




                                                -4-
         In support of his argument, defendant argues that the prosecution witness, Deputy Leasher
and the prosecutor improperly referred to the researched Google Cloud GPS history of the
defendant’s cell phone as “defendant’s GPS history.” Defendant contends Deputy Leasher should
have testified that he researched defendant’s Google Cloud GPS history for “whoever” was logged
into the account. Defendant further contends that the prosecutor’s citation to this testimony and
use of the word “his” misled the jury to believe that the Google search resulted in a definitive
determination that the defendant was the person using the cellphone. In context, we find that
neither the witness to whose testimony was referenced, nor the prosecutor made such an assertion.
It is apparent to this Court that “his” in this context refers to the owner of the account as opposed
to a definitive declaration by the prosecution (or its witness) that it was defendant in possession of
the phone generating the GPS history. Moreover, if there was any “confusion”, it could have been
further clarified on cross-examination.

                        V. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant’s ineffective assistance of counsel claim is also not preserved for appeal. “In
order to preserve the issue of effective assistance of counsel for appellate review, the defendant
should make a motion in the trial court for a new trial or for an evidentiary hearing.” People v
Sabin, 242 Mich App 656, 658; 620 NW2d 19 (2000). Defendant filed three motions for remand
that were denied. “Where claims of ineffective assistance of counsel have not been preserved, our
review is limited to errors apparent on the record.” People v Matuszak, 263 Mich App 42, 48; 687
NW2d 342 (2004).

       Defendant argues through counsel and in his Standard 4 brief, that counsel was ineffective
for:

           1. Failing to obtain discovery materials.

           2. Failing to file a motion to suppress evidence.

           3. Failing to object to the prosecutor’s misrepresentations of the evidence.

           4. Failing to consult with a cell phone expert.

           5. Failing to challenge cell phone expert testimony.

           6. Failing to investigate witness Delton Warren.

           7. Failing to call exculpatory witnesses Jacob Johnson and Nichole Garvie.

           8. Failing to file a motion to quash bind-over.

           9. Failing to view the vising room video from Moggo’s visit with defendant.

           10. Failing to object to the scoring of OV 12.

To establish ineffective assistance of counsel, the defendant must show that (1) defense counsel’s
performance was so deficient that it fell below an objective standard of reasonableness and (2)


                                                 -5-
there is a reasonable probability that but for counsel’s unprofessional errors, the result of the
proceedings would have been different. Strickland v Washington, 466 US 668, 694; 104 S Ct
2052; 80 L Ed 2d 674 (1984).

                                 A. DISCOVERY MATERIALS

        In his Standard 4 Brief, defendant argues that trial counsel was ineffective for failing to
obtain discovery of the Google account data. He relies on a final pretrial conference record
wherein defense counsel listed the items that were requested, but still not received. At that hearing,
the court denied defense counsel’s request for an adjournment and stated that the court would deal
with the issue at trial. The issue was not raised again. Defendant assumes that trial counsel never
received the Google discovery. However, a review of the trial record reveals that defense counsel
effectively interrogated Deputy Leasher regarding the Google search. Further, defendant failed to
point to any one instance where trial counsel was unprepared to cross examine the witness
regarding this evidence.

                            B. MOTION TO SUPPRESS EVIDENCE

       Defendant next argues that counsel was ineffective for not bringing a motion to suppress
the evidence obtained from the warrant. He reiterates his failed argument that the search of
defendant’s Google Cloud account was “warrantless” because the warrant did encompass a search
of defendant’s Google Cloud data. His other two bases upon which he asserts that counsel should
have brought a motion to suppress are equally meritless. Those arguments are that,

       1) Deputy Leasher’s statement in his affidavit, that the defendant told his girlfriend
       to delete his Google mail account (especially the map’s application) was false, and

       2) the facts contained in “item g” of Deputy Leasher’s affidavit were obtained during a
       search that required a warrant.

We reject both arguments.

        Defendant’s claim that Deputy Leasher’s statements in the affidavit regarding Moggo
being directed to delete material from the cell phone is unavailing. Moggo testified that defendant
told her to delete the maps application. Defendant’s second argument, that the initial search of the
phone required a warrant, is also without merit because once defendant gave Moggo access to his
information by providing her with the username and password, he no longer had an expectation of
privacy to that account. Thus, Deputy Leasher did not need a warrant at the time Moggo accessed
defendant’s Google account from her phone, with a password she had created.

       Therefore, counsel’s failure to file a motion to suppress the evidence obtained from the
warrant was not ineffective assistance of counsel. “[D]efense counsel is not ineffective for failing
to pursue a futile motion.” People v Brown, 279 Mich App 116, 142; 755 NW2d 664 (2008).

                        C. PROSECUTOR MISCHARACTERIZATIONS

       Defendant next asserts that trial counsel was ineffective for failing to object to the
prosecutor’s alleged mischaracterizations concerning the difference between the cell phone and


                                                 -6-
Google cloud data. Contrary to defendant’s assertion, there are multiple examples on the record
where trial counsel had the witness clarify any confusion regarding this evidence during cross-
examination. Additionally, as discussed above, the prosecutor’s manner in which he phrased his
questions to Deputy Leasher did not amount to prosecutorial misconduct. Accordingly, trial
counsel’s lack of objection to the prosecutor’s alleged mischaracterizations did not amount to
ineffective assistance of counsel. “A defendant is not denied the effective assistance of counsel
by counsel’s failure to make a futile or meritless objection.” People v Johnson, 315 Mich App
163, 175; 889 NW2d 513 (2016).

                          D. CONSULT WITH CELL PHONE EXPERT

         Defendant additionally claims that counsel was ineffective for failing to call or consult with
a forensic cell phone expert to testify about the inherent unreliability of the Google Cloud evidence
due to the many variables involved. A review of the record shows that trial counsel did in fact
elicit the very information defendant is arguing would have been provided by a forensic cell phone
expert during her cross examination of Deputy Leasher. Consequently, a consult was not
necessary and trial counsel was not ineffective for failing to consult or call an expert in cell phone
forensics.

                    E. CHALLENGE CELL PHONE EXPERT TESTIMONY

        In his attorney’s supplemental brief, defendant argues that counsel was ineffective for
failing to challenge the testimony of Deputy Leasher by failing to move in limine to exclude his
testimony, to move for a Daubert2 hearing, or for a mistrial or curative instruction. Defendant’s
arguments all flow from the primary assertion that Deputy Leasher offered expert testimony
without first having been qualified as an expert under MRE 702.

       The admission of expert witness testimony is governed by MRE 702, which provides:

       If the court determines that scientific, technical, or other specialized knowledge will
       assist the trier of fact to understand the evidence or to determine a fact in issue, a
       witness qualified as an expert by knowledge, skill, experience, training, or
       education may testify thereto in the form of an opinion or otherwise if (1) the
       testimony is based on sufficient facts or data, (2) the testimony is the product of
       reliable principles and methods, and (3) the witness has applied the principles and
       methods reliably to the facts of the case.

We agree with defendant that Deputy Leasher was an expert witness and the prosecutor should
have moved for his qualification before he began testifying. He provided technical testimony that
was necessary for the jury to understand the evidence. Trial counsel’s failure to object to Deputy
Leasher’s qualification further constituted deficient performance. Trial counsel’s strategy
appeared to be focused on challenging the basis for Deputy Leasher’s testimony, i.e. the
authentication of the Google records, instead of his qualifications. However, the failure to object
to Deputy Leasher’s qualification was not outcome determinative because an objection by counsel

2
 Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579, 589; 113 S Ct 2786; 125 L Ed 2d
469 (1993).


                                                 -7-
would have just led to his qualification. Deputy Leasher testified that he had been employed in
law enforcement for the past 24 years. He had two years of computer forensics training and two
years of work experience in the forensic examination of computers and phones.

       Defendant also suggests that trial counsel should have filed motions in limine to suppress
testimony from the Google account based on the failure to obtain a search warrant, and to exclude
any location data testimony attributable to defendant or his phone. However, such motions would
not have been successful. The phone was properly searched pursuant to a search warrant as
discussed above, and the testimony could have been made admissible by authentication from
proper witness testimony or certification of records. Thus, a motion in limine would not have
excluded the evidence.

        Defendant also argues that trial counsel failed to effectively challenge misleading
testimony. He contends that Deputy Leasher was allowed to interchange “Google records” and
“cell phone records” when referring to the Google maps locations. Defendant claims Deputy
Leasher was further allowed to mislead the jury into believing that the Google account was
tracking defendant’s cell phone. These contentions are belied by the record. Deputy Leasher was
very clear that that the location data came from the Google account. Defense counsel further
flushed out this fact through repeated objections and cross-examination. Deputy Leasher admitted
that he could not tell whether defendant was the person logged into his Google account or had
possession of the phone at the times in question. The court also clarified, “you’re tracking his
phone, right? . . . You don’t know at that time who had it,” to which Deputy Leasher responded,
“Correct.” This same testimony also defeats defendant’s additional argument that he was
prejudiced by the admission of Deputy Leasher’s testimony in that the jury was misled to believe
that the location data came from defendant’s phone and that law enforcement was able to track
defendant’s movements from his phone.

        Trial counsel’s failure to challenge Deputy Leasher’s testimony did not prejudice defendant
where, even absent the location data, there was overwhelming evidence to support the counts for
which defendant was convicted. Warren testified to defendant’s admission that the car he drove
into a ditch on December 23 was stolen. Additionally, there was physical evidence of the video,
mask, backpack, and bike. Further, when the police responded to the MPC break-in, they found
defendant’s brother’s bike leaning on a fence outside.

                               F. WITNESS DELTON WARREN

         Defendant next asserts that trial counsel should have reviewed the interrogation video of
witness Delton Warren or investigated him in order to impeach him with his prior crimes of
dishonesty. According to defendant, had trial counsel watched the video of Warren’s
interrogation, she would have been able to elicit his statements to detectives that he never saw the
car that hit a deer. However, Warren stated during his testimony at trial that he “never saw a car”
on the night he picked defendant up. Furthermore, assuming that the decision not to impeach
Warren was the result of counsel’s failure to investigate and not a strategic decision, defendant
fails to show how trial counsel’s failure to obtain a criminal background check on Warren was an
outcome-determinative error. The defendant must show that, but for counsel’s error, there is a
reasonable likelihood that the result would have been different. People v Shively, 230 Mich App



                                                -8-
626, 628; 584 NW2d 740 (1998). Moreover, Warren’s testimony regarding the admission of guilt
was but a small portion of the evidence against the defendant.

                               G. EXCULPATORY WITNESSES

         Defendant argues that trial counsel was also ineffective for failing to call exculpatory
witnesses, Nichole Garvie and Jacob Johnson. “In general, the failure to call a witness can
constitute ineffective assistance of counsel only when it deprives the defendant of a substantial
defense.” People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009) (citation and quotation
marks omitted). “A substantial defense is one that might have made a difference in the outcome
of the trial.” People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990). In Garvie’s affidavit,
she stated that if she had been contacted and called by trial counsel she would have testified that
sometime in early December 2016, defendant borrowed and damaged her car when he hit a deer.
The offenses for which defendant were convicted of occurred on December 22-23, 2016. Thus
had counsel called her to testify, her testimony still would not have accounted for the defendant’s
whereabouts when the crimes were committed.

        In his amended Standard 4 Brief, defendant faults counsel for not calling his brother,
Johnson, as an exculpatory witness. Defendant claims Johnson would have testified, “that he used
two of the Defendant’s phones during the month of December” and that this testimony would have
permitted the jury to consider that defendant’s phone and Google Cloud account were not used
exclusively by defendant. Defendant fails to establish the factual predicate for this claim of
ineffective assistance of counsel claim where he did not provide an affidavit from Johnson. People
v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

                         H. SCORING OF OFFENSE VARIABLE 12

        Defendant argues in his attorney’s supplemental brief that counsel was ineffective for
failing to object to the scoring of 10 points for offense variable (OV) 12. OV 12 is scored for
contemporaneous felonious criminal acts. MCL 777.42(1). The contemporaneous felonious acts
must be separate acts from that constituting the sentencing offense. People v Light, 290 Mich App
717, 723; 803 NW2d 720 (2010). Ten points are assessed when “[t]wo contemporaneous felonious
criminal acts involving crimes against a person were committed” or “[t]hree or more
contemporaneous felonious criminal acts involving other crimes were committed.” MCL
777.42(1)(b) and (c). Defendant’s one acquitted count of larceny of a firearm could not
substantiate the scoring of 10 points under the statute. Defendant admits that the acquitted felony
could be considered under OV 12 to assess five points for the contemporaneous commission of
one felonious criminal act involving a crime against a person under MCL 777.42(1)(d), however
he argues that this score was not supported by a preponderance of the evidence nor a ruling by the
court. Plaintiff concedes that OV 12 was scored at 10 points in error.

        “If a minimum sentence is within the appropriate guidelines sentence range, the court of
appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring
the sentencing guidelines or inaccurate information relied upon in determining the defendant’s
sentence.” People v Francisco, 474 Mich 82, 88; 711 NW2d 44 (2006) (citation omitted). The
court made no findings of fact regarding OV 12 because it was not objected to or raised by either
party at sentencing. Defendant’s total OV score was 35, his OV Level was IV, and his sentencing


                                                -9-
guideline range 34 to 134 months. A reduction of 10 OV points from 35 would change his OV
points to 25, his OV Level from IV to III and his sentencing guideline range from 34 to 134 months
to 29 to 114 months. Accordingly, defendant is entitled to resentencing because of the scoring
error.

        We also conclude that trial counsel’s failure to object to the scoring constituted deficient
performance. A reasonably competent attorney should have discovered that there was an
insufficient amount of contemporaneous felonious criminal acts to support assessing 10 points.
Because we have remanded this case for re-sentencing based upon OV 12, we decline to reach the
issue of whether counsel’s deficient performance was outcome determinative.

                               I. MOTION TO QUASH BIND OVER

        A defendant must be bound over for trial if, at the conclusion of the preliminary
examination, probable cause exists to believe that the defendant committed the crime. People v
Orzame, 224 Mich App 551, 558; 570 NW2d 118 (1997). Defendant asserts that trial counsel
should have filed a motion to quash the bind-over because the testifying officer established his
identity as the perpetrator at the preliminary examination solely by relying on his Google account
data that was insufficient to establish identity. However, even without the officer’s testimony,
there was other evidence presented by the prosecution to help establish identity. Specifically, there
was physical evidence of the video, mask, backpack, and bike. Accordingly, trial counsel was not
ineffective for failing to file a futile motion. It is well established that trial counsel is not required
to make a futile motion. People v Fike, 228 Mich App 178, 182-183; 577 NW2d 903 (1998).

                                    J. VISITING ROOM VIDEO

         Lastly, defendant asserts that trial counsel was ineffective for failing to view the video
recording of Moggo’s visit in the jail visiting room. Defendant contends that had she viewed the
video, she would have known that Moggo’s testimony regarding him asking her to delete the maps
portion of his Google account during her visit was false. Because he failed to offer any proof that
trial counsel did not view the video or give any substantive arguments as to how he was prejudiced
by this “error”, this issue is abandoned. An issue may be deemed abandoned where a defendant
fails to brief the merits of a claim of error. People v Harris, 261 Mich App 44, 50; 680 NW2d 17
(2004).

                                    VI. EVIDENTIARY ERROR

        In his Standard 4 Brief, defendant raises multiple claims of evidentiary error.

        “The decision whether to admit evidence falls within a trial court’s discretion and will be
reversed only when there is an abuse of that discretion.” People v Duncan, 494 Mich 713, 722;
835 NW2d 399 (2013), citing People v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010). “The
trial court abuses its discretion when its decision falls outside the range of principled outcomes . .
. .” People v Lane, 308 Mich App 38, 51; 862 NW2d 446 (2014).

       Defendant first argues that the trial court abused its discretion by not offering any
explanation on the record for overruling defendant’s objections to Deputy Leasher’s testimony
concerning defendant’s Google and phone records. We disagree. A review of the record shows


                                                  -10-
that the trial court did establish its reasoning for overruling trial counsel’s objections at the onset
of the objections, it just did not offer an explanation after every subsequent objection.

        Next, defendant argues that the Google records and the testimony from Deputy Leasher
regarding the Google and phone records constituted inadmissible hearsay because the records had
not been certified in accordance with MRE 902(11). We agree. MRE 902(11)(B) allows records
“of regularly conducted business activity that would be admissible under rule 803(6)” to be
authenticated “by a written declaration under oath by its custodian or other qualified person
certifying that” the record meets the requirements of MRE 803(6). MRE 803(6) is “the business
records exception to the hearsay rule[.]” People v Fackelman, 489 Mich 515, 536; 802 NW2d 552
(2011).

        Generally, phone and Google records would be admissible under MRE 803(6). In this
case, though, the prosecution sought to introduce testimony from Deputy Leasher regarding
defendant’s Google account and phone records as well as the maps Deputy Leasher generated from
defendant’s GPS history as Deputy Leasher’s own records. However, Deputy Leasher’s
testimony, along with the maps he created, was based on information that came from defendant’s
Google and Sprint phone accounts. As such, absent certification, they required testimony from
the custodian of these records or another qualified witness that would show that the records met
the exception under MRE 803 (6). The prosecution did not offer any such testimony. Therefore,
the Google records and the testimony from Deputy Leasher regarding the Google and phone
records was hearsay and it was plain error for the trial court to allow their admission.

        Even though we conclude that the trial court erred in admitting the records and Deputy
Leasher’s testimony, defendant has not shown that reversal is required. Evidentiary error does not
merit reversal unless it involves a substantial right, and “after an examination of the entire cause,
it shall affirmatively appear that it is more probable than not that the error was outcome
determinative.” People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999) (citation and
quotation marks omitted).

        Here, there was other evidence presented that supported the inference that defendant was
the perpetrator. Testimony was presented from defendant’s girlfriend that he had told her to delete
his Google account and from his friend Warren that Warren had picked defendant up and defendant
told him he had stolen a car and drove it into a ditch trying to avoid hitting a deer. Additionally,
Detective Dush testified that defendant told him he had hit a deer with a car and that the car went
into a ditch. There was also testimony from Deputy Leasher that the police retrieved a backpack
from defendant’s room at his brother’s house and a ski mask from defendant’s girlfriend’s house
that were both seen being worn by the individual on the video from TL Contracting. This evidence,
without reference to any Google or phone records, supports the inference that defendant was the
perpetrator of the crimes. “An erroneous admission of hearsay evidence can be rendered harmless
error where corroborated by other competent testimony.” People v Hill, 257 Mich App 126, 140;
667 NW2d 78 (2003). Accordingly, we conclude that the erroneous admission of the records and
Deputy Leasher’s testimony regarding the records did not affect defendant’s substantial rights.

                                        VII. SENTENCING




                                                 -11-
       Defendant argues that the trial court erred by assessing 10 instead of zero points for OV
19, MCL 777.49(c), because defendant did not interfere with the administration of justice. We
disagree.

        A claim that the sentencing guidelines range was improperly calculated is preserved by
raising the issue “at sentencing, in a motion for resentencing, or in a motion to remand.” People v
Kimble, 470 Mich 305, 311; 684 NW2d 669 (2004). Here, defendant preserved this issue by
raising the issue at sentencing. We review de novo the trial court’s interpretation and application
of the statutory sentencing guidelines. People v Jackson, 487 Mich 783, 789; 790 NW2d 340
(2010). On appeal, “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).

         OV 19 relates to conduct that constitutes interference with the administration of justice 3.
Interference with the administration of justice includes, but is not limited to, acts that constitute
“obstruction of justice.” People v Ericksen, 288 Mich App 192, 204; 793 NW2d 120 (2010). Here,
the trial court scored OV 19 at 10 points for interference with the administration of justice because
the defendant asked a corrections officer to give him his phone back after which he performed a
factory reset on it and because he asked his girlfriend to delete his Google account, specifically as
it related to the maps’ history. Defendant’s attempt to hide his phone’s data in conjunction with
his instruction to his girlfriend to delete his Google account were attempts to interfere with the
investigation by concealing evidence. Thus, the trial court did not err when it assessed 10 points
for OV 19 during sentencing. This Court has previously found that attempts to hide evidence can
support an assessment of 10 points OV-19. Id at 203-204.

       Defendant also argues that the court abused its discretion when it imposed an upward
departure sentence because the sentence was disproportionate and unreasonable. Because we are
remanding for re-sentencing we decline to address this issue.

                         VIII. OTHER STANDARD 4 BRIEF ISSUES

       “This Court reviews the grant or denial of an adjournment for an abuse of discretion.”
People v Snider, 239 Mich App 393, 421; 608 NW2d 502 (2000). “An abuse of discretion occurs
when the court chooses an outcome that falls outside the range of reasonable and principled
outcomes.” People v Mahone, 294 Mich App 208, 212; 816 NW2d 436 (2011).

       Defendant asserts that further testing should have been done on all of the DNA samples
taken and the trial adjourned until all results had been received from the state lab. Defendant
contends that this evidence could have been exculpatory and exonerated him. We disagree.




3
  The statue provides that an assessment of ten points is appropriate where “[t]he offender
otherwise interfered with or attempted to interfere with the administration of justice.” MCL
777.49(c)


                                                -12-
        “An adjournment may be granted on the ground of unavailability of a witness or evidence
only if the court finds that the evidence is material and that diligent efforts have been made to
produce the witness or evidence.” MCR 2.503(C)(2).

         Absent a showing of suppression of evidence, intentional misconduct, or bad faith,
         the prosecutor and the police are not required to test evidence to accord a defendant
         due process. Nor does due process require that the prosecution seek and find
         exculpatory evidence. Although the prosecution bears the burden of proving guilt
         beyond a reasonable doubt in a criminal trial, it need not negate every theory
         consistent with defendant's innocence, nor exhaust all scientific means at its
         disposal. [People v Coy, 258 Mich App 1, 18; 669 NW2d 831 (2003)].

        Here, defendant argues that nine swabs of DNA were collected from the three vehicles
parked in the TL Contracting parking lot. Results from testing were provided for two of these nine
samples and one of these samples indicated that there was DNA present from multiple contributors.
Thus, defendant argues that all of the DNA evidence collected should have been tested, especially
the DNA evidence from the stolen car, because further testing could have provided direct physical
evidence that exonerated him. However, defendant’s theory that the DNA evidence from the stolen
car could have been exculpatory is highly speculative. Further, the defendant cites no authority
that would have required the prosecution to complete DNA testing of all nine samples. See, e.g.,
People v Vaughn, 200 Mich App 611, 619; 505 NW2d 41 (1993), rev’d on other grounds 447 Mich
217 (1994), where this Court noted a clear distinction between the failure to disclose evidence and
the failure to develop evidence. Additionally, defendant has failed to demonstrate that he was
unfairly prejudiced by the court’s denial of an adjournment to wait for the completion of further
DNA testing. Under the circumstances, we cannot conclude that the trial court abused its
discretion by denying the motion to adjourn.

        Defendant finally argues that the cumulative effect of the errors requires that we reverse
his convictions or remand for a Ginther4 hearing. However, because he fails to cite any of the
errors he feels warrant reversal this argument should be rejected. “It is not enough for an appellant
in his brief simply to announce a position or assert an error and then leave it up to this Court to
discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments,
and then search for authority either to sustain or reject his position. The appellant himself must
first adequately prime the pump; only then does the appellate well begin to flow.” Mudge v
Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998) (citation omitted).

       We affirm defendant’s convictions, but remand for resentencing in light of the error in
scoring OV 12. We do not retain jurisdiction.



                                                               /s/ Christopher M. Murray
                                                               /s/ Cynthia Diane Stephens
                                                               /s/ Douglas B. Shapiro


4
    People v Ginther, 390 Mich 436, 440; 212 NW2d 922 (1973).


                                                 -13-
