           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PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 September 10, 2019
              Plaintiff-Appellee,

v                                                                No. 342699
                                                                 Wayne Circuit Court
ATA ELIA DABISH,                                                 LC No. 16-004493-01-FH

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                                No. 343020
                                                                 Wayne Circuit Court
YAS YATOMA,                                                      LC No. 16-004493-03-FH

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellant,

v                                                                No. 344557
                                                                 Wayne Circuit Court
DEVIN MONAIR-DONTE PETTWAY,                                      LC No. 16-004493-04-FH

              Defendant-Appellee.


Before: JANSEN, P.J., and CAMERON, and TUKEL, JJ.

PER CURIAM.



                                             -1-
        Defendants Ata Dabish, Yas Yatoma, and Devin Monair-Donte Pettway appeal as of
right their convictions by a single jury following a joint trial. In Docket No. 342699, Dabish
appeals his convictions of twelve offenses: (1) conspiracy to commit racketeering, MCL
750.159i(4); (2) racketeering, MCL 750.159i(1); (3) conspiracy to commit arson of an insured
building with intent to defraud, MCL 750.76(1)(b) and MCL 750.157a; (4) arson of an insured
building with intent to defraud, MCL 750.76(1)(b); (5) two counts of conspiracy to commit arson
of insured personal property with intent to defraud, MCL 750.76(1)(c) and MCL 750.157a; (6)
two counts of arson of insured personal property with intent to defraud, MCL 750.76(1)(c); (7)
two counts of conspiracy to commit third-degree arson, MCL 750.74 and MCL 750.157a; and
(8) two counts of third-degree arson, MCL 750.74. The trial court imposed (1) four terms of 4 to
20 years’ imprisonment for each of the two racketeering offenses and for each of the two insured
building offenses and (2) eight terms of 3 to 10 years’ imprisonment for the eight remaining
offenses. We affirm.

       In Docket No. 343020, Yatoma appeals his conviction of conspiracy to commit third-
degree arson, MCL 750.74 and MCL 750.157a; the trial court sentenced him to three years’
probation, with the first nine months to be served in jail. We affirm Yatoma’s convictions and
sentences, but remand for the limited, ministerial task of correcting his judgment of sentence.

        In Docket No. 344557, Pettway appeals his convictions of conspiracy to commit third-
degree arson, MCL 750.74 and MCL 750.157a, and third-degree arson, MCL 750.74. The trial
court sentenced him to concurrent terms of three years’ probation, with the first year to be served
in jail. We affirm his convictions and sentences, but remand for the limited purpose of
establishing a factual basis for the $1,300.00 in costs imposed under MCL 769.1k(1)(b)(iii), or
adjusting the costs imposed.

                          I. RELEVANT FACTUAL BACKGROUND

         At trial, the prosecution presented evidence that showed that Dabish and prosecution
witness Sylvester Bell—who testified pursuant to a plea agreement—formed an informal
partnership to burn vehicles and buildings in Detroit to obtain insurance money; others, such as
Yatoma and Pettway, were sometimes involved in their scheme. Four fires are at issue in this
case: a fire at a carwash (“the carwash fire”) in August 2015, a fire at a store called the Sea of
Liquor (“the Sea of Liquor fire”) in December 2015, a fire at the Lakepointe Street home of Bell
(“the Lakepointe fire”) in February 2016, and a fire at a store called “Sam D’s” (“the Sam D’s
fire”), also in February 2016. Dabish was alleged to have been involved, in some manner, with
all four fires, and was convicted accordingly. Yatoma and Pettway were charged and convicted
only in connection with the Sea of Liquor fire. A fourth defendant, Kelly Dabish (“Kelly”), was
alleged to have been involved with the Sam D’s fire and was tried and convicted accordingly, but
he is not a party to the present consolidated appeals.

                                   II. DOCKET NO. 342699

                                A. PROSECUTORIAL ERROR




                                                -2-
        In Docket No. 342699, Dabish first argues on appeal that the prosecution improperly
vouched for Bell’s credibility as a key prosecution witness by intentionally eliciting from him
that his plea agreement included a provision for him to tell the truth. We disagree.

        In general, this Court reviews claims of prosecutorial error to determine whether “the
prosecutor committed errors during the course of trial that deprived [the] defendant of a fair and
impartial trial.” People v Cooper, 309 Mich App 74, 88; 867 NW2d 452 (2015). However,
Dabish did not object below to the questioning he deems improper on appeal, and therefore we
review this issue under the plain error doctrine. Id. Under this doctrine, reversal is warranted if
a “clear or obvious” error occurred that “affected substantial rights,” i.e., “affected the outcome
of the lower court proceedings.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

        Dabish is correct that a prosecutor “may not vouch for the credibility of witnesses by
claiming some special knowledge with respect to their truthfulness.” People v McGhee, 268
Mich App 600; 709 NW2d 595 (2005). However, no “vouching” occurred here. In Cooper, 309
Mich App at 90-91, this Court stated, “[t]he mere disclosure of a plea agreement with a
prosecution witness, which includes a provision for truthful testimony, does not constitute
improper vouching or bolstering by the prosecutor, provided the prosecutor does not suggest
special knowledge of truthfulness.” In Cooper, id. at 89, the prosecutor had asked one witness,
“ ‘[Y]ou understand that [a] condition of your plea bargain is that you must testify truthfully; is
that true?’ ” The prosecutor had asked another witness, “ ‘Now, the condition of that plea
agreement is that you come to court and testify truthfully against any co-defendants; is that
true?’ ” Id. at 90. The prosecutor obtained affirmative answers to the questions. Id. at 89-90.
When the defendant raised a claim on appeal regarding improper vouching, this Court
concluded, “Because the prosecution did not make any additional comments about the credibility
of [the witnesses], there was nothing improper about the prosecutor’s questioning.” Id. at 91.

        Cooper is directly on point with the present case. The only prosecutorial “comment” that
Dabish takes issue with is the prosecutor’s elicitation from Bell that a provision of his plea
agreement required him to tell the truth. Cooper makes clear that this exchange was not
improper. In addition, Dabish’s attorney did not, contrary to Dabish’s argument, render
ineffective assistance by failing to object. Indeed, “[f]ailing to advance a meritless argument or
raise a futile objection does not constitute ineffective assistance of counsel.” People v Ericksen,
288 Mich App 192, 201; 793 NW2d 120 (2010).

                                  B. JUDICIAL PARTIALITY

       Dabish next argues that during Bell’s testimony, the trial court, by way of a leading
question, acknowledged that because of Bell’s plea agreement, Bell no longer had a reason to lie.
Dabish contends that the question was prejudicial and warrants a new trial. We disagree.

       Dabish did not object to the question below, and accordingly, we also review this issue
under the plain error doctrine. Carines, 460 Mich at 763.




                                                -3-
       During cross-examination of Bell by the attorney of Kelly1, another defendant, the
following exchange took place:

               Q. Let’s see, at one point you are telling us today, that you are being
       sincere, correct?

              A. (No response.)

              Q. Is that what you’re saying?

              A. That’s part of my plea bargain, that I must get up here and tell what I
       did, what happened, how I did it, you know, the whole thing.

               Q. And . . . when you were talking today you say you are being sincere,
       didn’t you when you were talking to [a police officer] you used the same words
       “sincere” when you were [initially] lying to him?

              A. Did I use the word “sincere”?

              Q. Yeah.

              A. Did I use that word?

              Q. Did you say—

              A. —I—

              Q. —sincere when you—

              A. —if you can find it in my testimony and I can recall, I’ll say I said it.
       There is no reason to lie now.

              Q. Because you got your deal?

              A. (No response.)

              Q. Right? Because you’re not in jail—

              A. So now, who, who won’t—

              Q. —you know—



1
 A fourth defendant, Kelly Dabish, was also alleged to have been involved in the Sam D’s fire
and was tried and convicted accordingly. However, Kelly is not a party to the present
consolidated appeals.


                                               -4-
              THE COURT: You don’t have any reason to lie now, because you know
       you’re not going to jail, right?

               THE WITNESS. Thank you.

               BY MR. ROCKIND [KELLY’S ATTORNEY]:

               Q. So you are down at the station, and you are trying to lie about the fire
       that you set to your own truck, right?

               A. Of course.

Dabish takes issue only with the italicized question by the court, claiming that this question
informed the jury that the court found Bell to be credible.

         MRE 614(b) indicates that a trial court “may interrogate witnesses[.]” However, a court
must not “pierce the veil of judicial impartiality.” People v Davis, 216 Mich App 47, 50; 549
NW2d 1 (1996). “ ‘A judge’s conduct pierces this veil and violates the constitutional guarantee
of a fair trial when, considering the totality of the circumstances, it is reasonably likely that the
judge’s conduct improperly influenced the jury by creating the appearance of advocacy or
partiality against a party.’ ” People v Willis, 322 Mich App 579, 588; 914 NW2d 384 (2018),
quoting People v Stevens, 498 Mich 162, 171; 869 NW2d 233 (2015). “A defendant must
overcome a heavy presumption of judicial impartiality when claiming judicial bias.” Willis, 322
Mich App at 588. An appellate court, in determining whether a judge pierced the veil of
impartiality, must consider the context and should consider whether curative instructions were
issued. See Stevens, 498 Mich at 172.

        When reading the challenged question in context, it is apparent that the court did not
pierce the veil of impartiality. The cited exchange occurred shortly after the court expressed
frustration with Kelly’s attorney for going over the same ground—Bell’s initial lies and his
current claim to be telling the truth—again and again. The trial court said, “Mr. Rockind, let’s
be reasonable. He said he denied everything, what else do you want him to say? He lied, there
is no question about it.” When the attorney continued in the same line of questioning and Bell
struggled to respond to the attorney’s questions, the court summarized what Bell was trying to
express. Bell’s response of “[t]hank you” shows that he was grateful for the court’s ability to
clarify what he was attempting to convey.

       Moreover, shortly after the cited exchange, the trial court reprimanded Bell when Bell
attempted to ask a question of the attorney, showing that the court was, throughout the
questioning, simply trying to move the trial along in an orderly fashion. As aptly noted by the
prosecutor on appeal, the question being challenged by Dabish “was not an instance of the trial
judge making a finding that the witness was not lying, but rather the judge breaking the impasse
between attorney Rockind and witness Bell by cutting to the chase of what Bell was trying to
say.” The trial court was exercising its powers to move the proceedings along. See Willis, 322
Mich App at 591. In addition, the trial court instructed the jury as follows:

       [W]hen I make a comment or give an instruction I am not trying to influence your
       vote or express a personal opinion about this case. If you believe that I have an

                                                -5-
       opinion about how you should decide this case, you’re wrong. You must pay no
       attention to that opinion if you have one.

               You are the only judges of the facts and you should decide this case from
       the evidence.

              And ladies and gentlemen, I . . . at times . . . have commented to the
       lawyers about things, don’t let that lead you to believe that I have any opinion
       about this case, because I don’t.

        Under these circumstances, there was no piercing of the veil of judicial impartiality.
Moreover, given that the court’s question made sense, in context, as an attempt to summarize
what Bell was trying to say and to move the proceedings along, Dabish’s attorney’s failure to
object did not fall below an objective standard of reasonableness. Ackley, 497 Mich at 389.
Therefore, contrary to Dabish’s contention, the failure to object did not constitute ineffective
assistance of counsel. Id.

                            C. SUFFICIENCY OF THE EVIDENCE

       Finally, Dabish argues that the prosecution presented insufficient evidence for his
racketeering convictions. Again, we disagree.

       “This Court reviews de novo a defendant’s challenge to the sufficiency of the evidence
supporting his or her conviction.” People v Lane, 308 Mich App 38, 57; 862 NW2d 446 (2014).
This court “review[s] the evidence in a light most favorable to the prosecution to determine
whether a rational trier of fact could find that the prosecution had proved the crime’s elements
beyond a reasonable doubt.” Id.

        MCL 750.159i(1) states that “[a] person employed by, or associated with, an enterprise
shall not knowingly conduct or participate in the affairs of the enterprise directly or indirectly
through a pattern of racketeering activity.” MCL 750.159i(4) states that “[a] person shall not
conspire or attempt to violate subsection (1) . . . .” MCL 750.159f(a) defines “enterprise” as
“includ[ing] an individual, sole proprietorship, partnership, corporation, limited liability
company, trust, union, association, governmental unit, or other legal entity or a group of persons
associated in fact although not a legal entity.”

       MCL 750.159f(c) states:

              “Pattern of racketeering activity” means not less than 2 incidents of
       racketeering to which all of the following characteristics apply:

               (i) The incidents have the same or a substantially similar purpose, result,
       participant, victim, or method of commission, or are otherwise interrelated by
       distinguishing characteristics and are not isolated acts.

               (ii) The incidents amount to or pose a threat of continued criminal activity.



                                                -6-
               (iii) At least 1 of the incidents occurred within this state on or after the
       effective date of the amendatory act that added this section, and the last of the
       incidents occurred within 10 years after the commission of any prior incident,
       excluding any period of imprisonment served by a person engaging in the
       racketeering activity.

Finally:

             “[R]acketeering” means committing, attempting to commit, conspiring to
       commit, or aiding or abetting, soliciting, coercing, or intimidating a person to
       commit an offense for financial gain, involving any of the following:

                                              * * *

              (l) A felony violation of [MCL 750.72, MCL 750.73, MCL 750.74, MCL
       750.75, or MCL 750.77], concerning arson. . . . [MCL 750.159g.]

        Dabish’s first argument with regard to his sufficiency issue is that “[t]here is, and cannot
be, a one man enterprise” and that “[t]here is no evidence of a separate and distinct individual or
any other legal entity which is distinct.” In People v Kloosterman, 296 Mich App 636, 640; 823
NW2d 134 (2012), this Court, interpreting MCL 750.159i(1), stated that “a defendant, acting
alone, cannot be both the person and the enterprise.” The Court concluded that “[t]o associate, a
person must necessarily align or partner with another person or entity.” Id. It stated, “Because
no evidence was presented in this case to show that defendant associated with or was employed
by any other physical or legal person or entity, there was insufficient evidence to support his
conviction [of] conducting a criminal enterprise[.]” Id. at 642.

        Bell testified that he and Dabish “kind of took on this partnership.” He said that he and
Dabish were “together every day” and “kind of in this partner state of mind” when it came to
setting fires. He and Dabish had a plan to set the carwash on fire, Dabish gave Bell “orders”
regarding the Sea of Liquor fire, and Dabish planned the Sam D’s fire with Bell.2 Contrary to
Dabish’s argument, the prosecutor did not support the racketeering convictions solely with
evidence of Dabish acting alone. The evidence showed that Dabish was acting in a partnership
with Bell to commit arson for financial gain.

        Dabish also contends that a racketeering conviction cannot be based solely on the
underlying acts and that something more must be presented to establish an “enterprise.” But
even assuming the accuracy of this contention, Bell, beyond testifying about the individual
conspiracies and individual fires, stated that he and Dabish were in a “partnership” with regard to
setting fires. As such, the prosecutor did present evidence beyond the acts themselves to show a
racketeering “enterprise.”



2
  The Lakepointe fire involved only violations of MCL 750.76, which is not listed in MCL
750.159g(l).


                                                -7-
        Citing Boyle v United States, 556 US 938, 947; 129 S Ct 2237; 173 L Ed 2d 1265 (2009),
Dabish contends that the enterprise must have a “structure” and implies that such a structure was
not shown in the present case. Boyle, 556 US at 945-946. In Boyle, the United States Supreme
Court said that “an association-in-fact enterprise must have at least three structural features: a
purpose, relationships among those associated with the enterprise, and longevity sufficient to
permit these associates to pursue the enterprise’s purpose.” Id. at 946. The Boyle Court stated
that an enterprise need not have “a hierarchical structure,” that “different members may perform
different roles at different times,” and that the organization must simply be “a continuing unit
that functions with a common purpose.” Id. at 948. Here, we conclude that the prosecution
adequately demonstrated the existence of a structure. Indeed, the evidence showed a
longstanding relationship between Dabish and Bell that existed for the purpose of obtaining
money through arson.3 Based on the foregoing, Dabish’s claim that the prosecution presented
insufficient evidence to support his convictions is without merit.

                                   III. DOCKET NO. 343020

                            A. SUFFICIENCY OF THE EVIDENCE

       In Docket No. 343020, Yatoma first argues that the prosecution presented insufficient
evidence to sustain his conviction of conspiracy to commit third-degree arson at the Sea of
Liquor store. We disagree.

       MCL 750.74(1) states, in part:

               [A] person who does any of the following is guilty of third degree arson:

              (a) Willfully or maliciously burns, damages, or destroys by fire or
       explosive any building or structure, or its contents, regardless of whether it is
       occupied, unoccupied, or vacant at the time of the fire or explosion.



3
  Dabish does not make any separate arguments about the conviction under MCL 750.159i(4) for
conspiring to commit racketeering. We note, however, that direct and circumstantial evidence
can be considered in assessing sufficiency of the evidence claims. See People v Hardiman, 466
Mich 417, 428; 646 NW2d 158 (2002). “It is for the trier of fact, not the appellate court, to
determine what inferences may be fairly drawn from the evidence and to determine the weight to
be accorded those inferences.” Id. An inference from Bell’s testimony is that he and Dabish
conspired to conduct a racketeering enterprise. We lastly note that Dabish makes a claim of
cumulative error. However, because Dabish established no errors in the context of his first three
issues on appeal, there are “no errors that can aggregate to deny defendant a fair trial.” People v
Ackerman, 257 Mich App 434, 454; 669 NW2d 818 (2003).




                                                -8-
MCL 750.157a states, in part, that “[a]ny person who conspires together with 1 or more persons
to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of
the crime of conspiracy[.]”

       There was overwhelming evidence of the crime of third-degree arson; indeed, Bell was
shown on video footage setting fire to the Sea of Liquor store. The question is whether the
prosecutor presented adequate evidence that Yatoma conspired with one or more persons to
commit this crime.

         Bell testified, in relevant part, as follows: Dabish told Bell that he had asked Pettway to
set the Sea of Liquor store on fire but that Pettway could not “get the job done.” On
December 7, 2015, Pettway “went by hisself trying to burn the store up” but “couldn’t set the
store on fire.” Dabish, Bell, and Yatoma discussed burning the liquor store, and Yatoma asked
Bell if he could “get it done.” Bell said he could “get it done,” and he met with Pettway at
Dabish’s carwash property; Pettway had gasoline and a lighter. Bell went to the liquor store and
set it on fire.

        In determining whether the prosecution offered sufficient evidence to support a
conviction, direct and circumstantial evidence can be considered. See People v Hardiman, 466
Mich 417, 428; 646 NW2d 158 (2002). Moreover, “[i]t is for the trier of fact, not the appellate
court, to determine what inferences may be fairly drawn from the evidence and to determine the
weight to be accorded those inferences.” Id. A reasonable inference from Yatoma’s question to
Bell, when viewed in context, is that Yatoma and Bell conspired to commit third-degree arson at
the Sea of Liquor store. Contrary to Yatoma’s assertion on appeal, there was evidence of his
participation in a conspiracy beyond his mere presence at a discussion regarding the proposed
burning of the store. In addition, even if, as argued by Yatoma on appeal, there was already an
existing agreement to burn the store before Yatoma asked his question of Bell, a person can be a
party to a continuing conspiracy if he or she knowingly cooperates to achieve the goal of the
conspiracy. People v Hunter, 466 Mich 1, 7; 643 NW2d 218 (2002). The evidence showed that
Yatoma actively took part in the conspiracy to burn the Sea of Liquor store by participating in
having Bell accomplish the arson.4

                                     B. JUROR INFLUENCE

       Yatoma next argues that the trial court erred by inadequately investigating Pettway’s
inappropriate interaction with a juror, during which Pettway said that Bell was a rapist. We
disagree.

        After being informed of a conversation that occurred between Pettway and a juror, the
trial court interviewed the juror and ultimately excused him and seated an alternate. Yatoma did
not argue below, as he does on appeal, that the trial court should have held a hearing to


4
 Also, we note that it was Yatoma, out of all the involved individuals, who had ties to the owner
of the liquor store; the owner’s sister was married to Yatoma.


                                                -9-
determine whether other jurors, aside from the one who was excused, heard Pettway’s comment.
As such, the issue is unpreserved. See People v Grant, 445 Mich 535, 546; 520 NW2d 123
(1994). Yatoma asserts that “the other co-defendants’ objections were sufficient to preserve this
issue for Mr. Yatoma,” but the other defendants did not, in fact, argue that the court should have
held a hearing to determine whether any other juror heard the comment.5 As noted, this Court
reviews unpreserved issues for plain error affecting substantial rights. Carines, 460 Mich at 763.

        In People v Fletcher, 260 Mich App 531, 539; 679 NW2d 127 (2004), this Court stated,
“where there is evidence to suggest the verdict was affected by influences external to the trial
proceedings, courts may consider juror testimony to impeach a verdict.” Moreover, to establish
error requiring reversal based on external influences on the jury, a defendant must show that the
jury was exposed to extraneous influences and that these influences created a substantial and real
possibility of affecting the verdict. Id. at 540; see also People v Stokes, 501 Mich 918; 903
NW2d 194 (2017).

         Yatoma notes, correctly, that the juror in question stated that the comment from Pettway
occurred when the juror was “[s]itting by the jury, you know where the jury seats are.”
Accordingly, Yatoma argues, “the jurors may have been exposed to extraneous influences.”
(Emphasis added.) But there was no evidence that the remaining jurors were actually exposed to
extraneous influences. The juror in question said that Pettway asked him a question about a
door, walked away, and “then came back to me and” made the statement about Bell. (Emphasis
added.) At no time did the juror state that Pettway made the statement to any other juror or that
any other juror heard Pettway’s remarks. In addition, while some of the attorneys advocated for
removing the juror in question (an action that the trial court did in fact undertake), no attorney
argued that other jurors had likely been exposed to Pettway’s comments. The Michigan
Supreme Court in Carines, when discussing the plain error doctrine, defined a plain error as one
that is “clear or obvious[.]” Carines, 460 Mich at 763. In light of the circumstances, Yatoma
has not established a clear or obvious error with regard to the court’s handling of the situation.

        Yatoma cites federal cases in an attempt to support his argument that the court was
required to conduct an additional hearing. Even disregarding the nonbinding nature of these
cases, they are inapposite because they involved inadequate investigations into allegations of
actual juror involvement in improper actions. See United States v Herndon, 156 F3d 629, 630
(CA 6, 1998) (a juror said he may have had prior business dealings with the defendant, and
defense counsel wanted to question this juror), United States v Walker, 1 F3d 423, 429 (CA 6,
1993) (all jurors were given improper access to certain transcripts and redacted materials), and
United States v Corrado, 227 F3d 528, 533, 535 (CA 6, 2000) (an outside party informed the
defendant that he had a “ ‘friend’ ” on the jury who could help the defendant and could “ ‘carry
two or three of the [other] jurors with him’ ”). The present case is different because the trial




5
  Dabish’s attorney argued that Pettway had prejudiced his client in front of the jury, but this was
in connection with Pettway’s having “jump[ed] up” and made statements, out of turn, during
trial.


                                               -10-
court did question the involved juror, and Yatoma is merely speculating that any other jurors
were involved; it is not “clear or obvious” that any were. Carines, 460 Mich at 763.

       Moreover, even if a plain error did occur, Yatoma has not established that it was
outcome-determinative. Id. Yatoma argues that Pettway’s statement “in all likelihood[]
supplemented the prosecution’s proofs, in that it communicated to the jury that one or more of
the defendants was engaging in improper juror influence.” However, there was nothing linking
Yatoma to the statement. Accordingly, we conclude that Yatoma’s argument is without merit.

                                         C. SEVERANCE

         Third, Yatoma argues that the trial court erred by failing to afford him a separate trial or
at least a separate jury. We disagree.

       This Court reviews for an abuse of discretion a trial court’s decision to deny a motion for
severance. People v Hana, 447 Mich 325, 331; 524 NW2d 682 (1994), amended subnom People
v Rode, 447 Mich 1203 (1994), and amended subnom People v Gallina, 447 Mich 1203 (1994).

       MCR 6.121 states, in part:

              (C) Right of Severance; Related Offenses. On a defendant’s motion, the
       court must sever the trial of defendants on related offenses on a showing that
       severance is necessary to avoid prejudice to substantial rights of the defendant.

              (D) Discretionary Severance. On the motion of any party, the court may
       sever the trial of defendants on the ground that severance is appropriate to
       promote fairness to the parties and a fair determination of the guilt or innocence
       of one or more of the defendants. Relevant factors include the timeliness of the
       motion, the drain on the parties’ resources, the potential for confusion or prejudice
       stemming from either the number of defendants or the complexity or nature of the
       evidence, the convenience of witnesses, and the parties’ readiness for trial.

In Hana, 447 Mich at 346-347, our Supreme Court stated:

              We . . . hold that, pursuant to MCL 768.5[6] . . . and MCR 6.121(D), the
       decision to sever or join defendants lies within the discretion of the trial court.
       Severance is mandated under MCR 6.121(C) only when a defendant provides the
       court with a supporting affidavit, or makes an offer of proof, that clearly,
       affirmatively, and fully demonstrates that his substantial rights will be prejudiced
       and that severance is the necessary means of rectifying the potential prejudice.
       The failure to make this showing in the trial court, absent any significant



6
  MCL 768.5 provides, “When 2 or more defendants shall be jointly indicted for any criminal
offense, they shall be tried separately or jointly, in the discretion of the court.”


                                                -11-
       indication on appeal that the requisite prejudice in fact occurred at trial, will
       preclude reversal of a joinder decision.

        Only Dabish and Kelly filed written motions to obtain separate trials. Yatoma’s attorney
stated at the motion hearing, “I’m just joining in.” Dabish’s attorney asserted that his argument
for severance was different from the other defendants’ arguments because his defense was going
to be based, in part, on the allegedly contentious history between Dabish and Detective James
Kraszewski (one of the lead investigators) and between Dabish and Bell. The attorney asserted
that he would be arguing that (1) Bell concocted stories about Dabish because of their soured
relationship and (2) Detective Kraszewski sought charges against Dabish maliciously because
the detective wanted to punish Dabish for unrelated matters. Yatoma’s attorney stated:

               Your Honor, as it relates to Mr. Yatoma, I would like to join in the motion
       to sever. I believe that it would severely prejudice my client if he is tried
       alongside of Mr. Ata Dabish. My client will be severely, severely prejudiced by
       this back and forth testimony regarding Mr. Ata Dabish and Mr. Bell, and this
       thing that Mr. Ata Dabish has issues with Bell and the investigator, and my client
       will be severely prejudiced because he has to sit here and listen to, or be a part of
       testimony that has absolutely nothing to do with him.

              My client is only charged regarding . . . one piece of property. And, the
       jury could throw him under the bus along with the pomp and circumstance that’s
       going to get strewn out regarding this investigator and Mr. Dabish’s past. I don’t
       want my client to be a part of that. This is the reason why I’m joining in the
       motion.

       Yatoma’s attorney was arguing that Dabish’s defense strategy was somehow harmful to
Yatoma. Indeed, to a large extent, the various attorneys and the trial court were focusing, at the
motion hearing, on whether the defenses of the various defendants were antagonistic. That,
however, is not the focus of Yatoma’s argument on appeal, and indeed the various defenses were
not antagonistic; the defense attorneys all argued about the alleged unreliability of Bell’s
testimony and implied that the allegations of criminal behavior had been manufactured.
Yatoma’s focus on appeal is whether it was overly prejudicial for Yatoma to be tried with the
other defendants because he was charged with only one offense, but the jury heard “testimony
[about] multiple conspiracies and conducting criminal enterprises.”

        The Hana Court stated that “[i]ncidental spillover prejudice, which is almost inevitable in
a multi-defendant trial, does not suffice” to require severance. Id. at 349 (quotation marks and
citation omitted). The Court, however, provided the following examples of what it referred to as
“potentially reversible prejudice”:

              Such a risk [of prejudice requiring reversal] might occur when evidence
       that the jury should not consider against a defendant and that would not be
       admissible if a defendant were tried alone is admitted against a codefendant. For
       example, evidence of a codefendant’s wrongdoing in some circumstances
       erroneously could lead a jury to conclude that a defendant was guilty. When
       many defendants are tried together in a complex case and they have markedly

                                               -12-
       different degrees of culpability, this risk of prejudice is heightened. Evidence that
       is probative of a defendant’s guilt but technically admissible only against a
       codefendant also might present a risk of prejudice. [Id. at 346 n 7 (quotation
       marks and citations omitted).]

       Yatoma was charged only in connection with the Sea of Liquor fire, but Bell, in testifying
about the carwash fire, stated that Yatoma assisted Bell in pretending to perform cement work at
the carwash while Dabish set the actual fire. He also testified that Yatoma assisted in covering
up the carwash incident by facilitating false land-contract payments between Dabish and Bell.
But Yatoma has not established prejudice with regard to the “carwash” testimony because, in a
separate trial, that testimony would have been admissible under MRE 404(b)(1) as part of
Yatoma’s plan or scheme to work in concert with Bell and Dabish in unlawfully burning
buildings. See, generally, People v Hine, 467 Mich 242, 253; 650 NW2d 659 (2002), and People
v Magyar, 250 Mich App 408, 413-414, 416-417; 648 NW2d 215 (2002).

        Aside from the “carwash” testimony from Bell, there was a potential for prejudice
because Dabish, in particular, had a “markedly different degree[] of culpability” from Yatoma,
and the jury heard about two fires not involving Yatoma. Hana, 447 Mich at 346 n 7. However,
severance is mandated only when a defendant “clearly, affirmatively, and fully demonstrates that
his substantial rights will be prejudiced and that severance is the necessary means of rectifying
the potential prejudice.” Id. at 346. Yatoma’s attorney, with his untenable arguments below that
focused on an allegedly antagonistic defense, did not make such a demonstration. The Hana
Court did say that reversal of a joinder decision can occur if there is a “significant indication on
appeal that the requisite prejudice in fact occurred at trial[.]” Id. at 347. Such a significant
indication is not present. The court instructed the jury that “[i]f any evidence was limited to one
defendant you should not consider it as to any other defendant” and stated, “[Y]ou must consider
each defendant separately.” All four defense attorneys at trial focused on the credibility of Bell,
and the jury, by virtue of their verdict, evidently found him to be a credible witness. In addition,
the Sea of Liquor fire (i.e., the fire supporting Yatoma’s conviction) had the most corroborating
evidence out of all the fires, in the form of video footage. And again, evidence of Yatoma’s
involvement in the carwash fire could have been presented at a separate trial under MRE
404(b)(1) in order to show that Yatoma, in conspiring to burn the Sea of Liquor, was performing
part of a scheme or plan. It is simply not apparent that the evidence of the Lakepointe fire and
the Sam D’s fire somehow prejudiced the jury to such an extent that they found Yatoma guilty
when they otherwise would not have. Yatoma has not demonstrated that the failure to have a
separate trial or a separate jury requires reversal.

                                        D. SENTENCING

      Finally, Yatoma argues that the trial court improperly relied on his assertion of innocence
when sentencing him. Again, we disagree.

       Yatoma argues as follows in his brief on appeal:

              It is clear that the sentence decision was predicated primarily on Mr.
       Yatoma’s assertion of innocence at sentencing. Such a sentencing consideration
       renders the sentence imposed invalid as a matter of law, particularly when the

                                               -13-
       assertion of innocence took away any real consideration of an intermediate
       sanction, as opposed to prison.

In the concluding sentences of his argument, Yatoma states, “It is clear from the comments made
by the sentencing judge that the decision to impose prison was based on a refusal to admit guilt,
and a full resentencing is required.” (Emphasis added.)

       Yatoma, however, was not sentenced to prison; he was sentenced to three years of
probation with the first nine months to be served in jail. This was an intermediate sanction. See
MCL 769.31(b). Accordingly, the premise of Yatoma’s appellate argument is faulty. And even
if one were to interpret his argument as invoking a challenge to the jail term imposed, this
challenge would be moot. In People v Rutherford, 208 Mich App 198, 204; 526 NW2d 620
(1994), the defendant argued that his sentence violated the principle of proportionality, but this
Court declined to review the issue because the defendant had already served his minimum
sentence. In reaching this decision, the Court stated, “Where a subsequent event renders it
impossible for this Court to fashion a remedy, an issue becomes moot.” Id. Yatoma was
sentenced in February 2018, and nine months (the length of Yatoma’s imposed jail term) have
long since passed. At present, the Offender Tracking Information System lists him as a
probationer. It is impossible for this Court to remedy the fact that Yatoma was sentenced to nine
months in jail.

        We note, however, that Yatoma’s judgment of sentence incorrectly notes that his
conviction was based on a plea. Accordingly, we remand Yatoma’s case for ministerial task of
correcting this clerical error.

                                   IV. DOCKET NO. 344557

                            A. SUFFICIENCY OF THE EVIDENCE

       In Docket No. 344557, Pettway first argues that the prosecution presented insufficient
evidence to sustain his convictions of third-degree arson and conspiracy to commit third-degree
arson. We disagree.

       As noted, MCL 750.74(1) states, in part:

       [A] person who does any of the following is guilty of third degree arson:

              (a) Willfully or maliciously burns, damages, or destroys by fire or
       explosive any building or structure, or its contents, regardless of whether it is
       occupied, unoccupied, or vacant at the time of the fire or explosion.

In addition, MCL 750.71(b) defines “burn” as “setting fire to, or doing any act that results in the
starting of a fire, or aiding, counseling, inducing, persuading, or procuring another to do such an
act.”

       Bell testified that Pettway was the “lookout” on December 10, 2015, for the Sea of
Liquor fire and that Pettway supplied the gas and a lighter for the fire. Bell identified Pettway on

                                               -14-
the Sea of Liquor video footage. Accordingly, viewing the evidence in the light most favorable
to the prosecution, Lane, 308 Mich App at 57, there was sufficient evidence to prove beyond a
reasonable doubt that Pettway aided Bell in setting the Sea of Liquor fire, see MCL 750.71(b).
While the police, upon initially viewing the video footage, thought that the “lookout” person on
the footage was Caucasian, and Pettway is not Caucasian, “a reviewing court is required to . . .
make credibility choices in support of the jury verdict.” People v Nowack, 462 Mich 392, 400;
614 NW2d 78 (2000). In other words, this Court must credit Bell’s testimony. There was
sufficient evidence to support Pettway’s conviction of third-degree arson.

        MCL 750.157a states, in part, that “[a]ny person who conspires together with 1 or more
persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is
guilty of the crime of conspiracy[.]”

        Bell testified that Pettway tried to set the Sea of Liquor store on fire before December 10
but was unsuccessful. According to Bell, Dabish told him that he had asked Pettway to set the
store on fire but that Pettway could not “get the job done.” Bell testified that he told Dabish and
Yatoma that he could accomplish the task, and that same day or possibly the day afterwards, he
met with Pettway. At this meeting, Pettway brought the gas and lighter for setting the fire. Bell
averred that the day after the fire, Dabish gave Pettway and Bell $5,000, which the two split.

         As noted, in assessing sufficiency of the evidence claims, direct and circumstantial
evidence can be considered, and “[i]t is for the trier of fact, not the appellate court, to determine
what inferences may be fairly drawn from the evidence and to determine the weight to be
accorded those inferences.” Hardiman, 466 Mich at 428. Given that (1) Pettway tried earlier to
set the Sea of Liquor store on fire at the request of Dabish; (2) Pettway, carrying gas and a
lighter, met with Bell shortly after Bell told Yatoma and Dabish that he would burn the store; (3)
Pettway thereafter aided Bell in setting the fire; and (4) Pettway was paid by Dabish for his role
in the fire, a reasonable inference is that Pettway conspired “with 1 or more persons to commit”
third-degree arson. MCL 750.157a. Pettway’s conspiracy conviction was supported by
sufficient evidence.

                                         B. SEVERANCE

       Pettway next argues that his defense was antagonistic to and inconsistent with his co-
defendants’ and that he should have had a separate trial or a separate jury. We disagree.

       Because Pettway’s attorney did not adequately raise this issue below, it is not preserved
for appellate review. Grant, 445 Mich 546. Accordingly, our review is for plain error affecting
substantial rights. Carines, 460 Mich at 763.

        Pettway did not provide the trial court with an affidavit or make an offer or proof that
clearly, fully, and affirmatively demonstrated that severance was necessary. Hana, 447 Mich at
346. There is also no “significant indication on appeal that the requisite prejudice in fact
occurred at trial.” Id. at 346. Pettway rests his assertion of prejudice on his claim that his
defense was antagonistic to the defenses of the other defendants because Pettway “had nothing to
do with the planning of these fires,” whereas the other defendants did engage in planning. But
Pettway does not explain how this difference in roles made his defense, which was that Bell was

                                                -15-
not a credible witness, antagonistic to that of the other defendants, who all made the same
argument.

        Regarding his related claim of ineffective assistance of counsel, Pettway states that “if his
trial counsel had filed . . . a motion with affidavits stating facts in support of his position that the
defenses relied on by the defendants were inconsistent with each other and a joint trial may result
in prejudice to Mr. Pettway, the trial court may very well have granted defendant’s motion for
severance or separate juries.” Again, however, the defenses offered were not inconsistent.
Therefore, the premise of Pettway’s appellate argument is faulty. Even assuming, for purposes
of argument, that Pettway’s attorney should have raised a motion for severance or for a separate
jury based on general allegations of prejudice as discussed in Hana, 447 Mich 346 n 7, there is
no “reasonable probability” that such a motion, even if successful, would have affected the
outcome of the trial. Ackley, 497 Mich at 389 (quotation marks and citation omitted). Indeed,
the prosecutor still would have presented the significantly corroborated testimony of Bell and the
video footage showing the “lookout” that Bell identified as Pettway. Pettway has not
demonstrated that he is entitled to relief.

                                         C. RESTITUTION

       Next, Pettway argues that the joint and several restitution amount of $470,242.13 that
was ordered for the Sea of Liquor fire was without supporting documentation and a restitution
hearing is required.

        At sentencing, Pettway’s attorney said that “the presentence [investigation] report [PSIR]
is a fair report.” When the court asked for any further input, the attorney asked for “work
release” for Pettway, stating, “I think that the recommendation is a fair recommendation. But in
order for him to give any assistance on the restitution it would be important for him to have
gainful employment which he does have.” The PSIR contained a recommendation for, among
other things, five years’ probation, with the first six months served in jail, and “restitution in the
amount of $470,242.13,” payable to an insurance company “jointly and severally with co-
defendants.” It recommended that Pettway “execute a wage assignment to pay restitution if [he
is] employed and miss[es] two regularly scheduled payments.” The report also stated, “Writer
spoke with Mike Small of Selective Way Insurance Company who is seeking restitution in the
amount of $470,242.13 which was paid to his insured, Sea of Liquor.”7

       Pettway argues on appeal that no “documentation” supported the restitution amount of
$470.242.13, but the discussions at sentencing indicate that his attorney acquiesced to this
amount as “fair” but argued that Pettway be granted work release in order to earn money.




7
  Mark Vandegraft, an executive general adjuster with Selective Insurance, testified at trial that
the insurance amount paid for the liquor store was, in fact, $470,242.13.



                                                 -16-
Pettway’s attorney affirmatively agreed with the amount of restitution and therefore waived the
present issue. See People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).8

                                       D. COURT COSTS

       Finally, Pettway argues that the trial court ordered him to pay $1,300.00 in court costs,
but did not articulate the reasoning for imposing that amount. He argues that a remand is
therefore necessary. We agree.

       MCL 769.1k(1)(b) provides, in relevant part:

       (b) The court may impose any or all of the following:

                                              * * *

       (iii) Until October 17, 2020, any cost reasonably related to the actual costs
       incurred by the trial court without separately calculating those costs involved in
       the particular case, including, but not limited to, the following:

       (A) Salaries and benefits for relevant court personnel.

       (B) Goods and services necessary for the operation of the court.

       (C) Necessary expenses for the operation and maintenance of court buildings and
       facilities.

However, “trial courts must ‘establish a factual basis’ from which this Court can ‘determine
whether the costs imposed were reasonably related to the actual costs incurred by the trial court.’
” People v Stevens, 318 Mich App 115, 120-121; 896 NW2d 815 (2016), quoting People v
Konopka (On Remand), 309 Mich App 345, 359-360; 869 NW2d 651 (2015).

        Here, the trial court ordered defendant to pay $1,300.00 in court costs, however the trial
court failed to articulate a factual basis for the costs imposed. “[W]ithout a factual basis for the
costs imposed, we cannot determine whether the costs imposed were reasonably related to the
actual costs incurred by the trial court, as required by MCL 769.1k(1)(b)(iii). Konopka, 309


8
  We note that the jury acquitted Pettway of conspiracy to commit arson of insured real property
with intent to defraud. However, the jury convicted him of conspiracy to commit third-degree
arson and of third-degree arson. Pettway does not make the legal argument on appeal that
because the jurors acquitted him on the count involving the defrauding of the insurance
company, he should not be responsible for the insurance payout. He merely argues that the
restitution ordered was “without documentation.” At any rate, MCL 780.766(8) states that
restitution shall be made to any “corporations” “that have compensated the victim . . . for a loss
incurred by the victim to the extent of the compensation paid for that loss.”




                                               -17-
Mich App at 359-360. Accordingly, remand is required for the limited purpose of establishing a
factual basis for the $1,300.00 in costs imposed under MCL 769.1k(1)(b)(iii), or adjusting the
costs imposed.

       In Docket No. 342699, we affirm Dabish’s convictions and sentences.

        In Docket No. 343020, we affirm Yatoma’s convictions and sentences, but remand for
the limited, ministerial task of correcting his judgment of sentence. We do not retain
jurisdiction.

        In Docket No. 344557, we affirm Pettway’s convictions and sentences, but remand for
the limited purpose of establishing a factual basis for the $1,300.00 in costs imposed under MCL
769.1k(1)(b)(iii), or adjusting the costs imposed. We do not retain jurisdiction.


                                                           /s/ Kathleen Jansen
                                                           /s/ Thomas C. Cameron
                                                           /s/ Jonathan Tukel




                                             -18-
