            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 26, 2019
               Plaintiff-Appellee,

v                                                                  No. 339921
                                                                   Wayne Circuit Court
LLAMAR MARQUISE VENSON,                                            LC No. 16-007405-01-FC

               Defendant-Appellant.


Before: JANSEN, P.J., and BECKERING and O’BRIEN, JJ.

PER CURIAM.

       A jury convicted defendant, Llamar Marquise Venson, of first-degree criminal sexual
conduct (CSC-I), MCL 750.520b(1)(d)(i) (defendant was aided or abetted by another person and
knew that the victim was physically helpless), and the trial court sentenced him to 15 to 30 years
in prison for his conviction, with credit for 109 days served. On appeal, defendant raises
challenges to his conviction as well as to his sentence. We affirm both.

                      I. BASIC FACTS AND PROCEDURAL HISTORY

        This case arises from a sexual assault that occurred on July 4, 2004. The victim, 23-years
old at the time, lived with her grandmother, who required her to be home by 11:00 p.m. After
spending an evening with her boyfriend, Adrigo Cowans, the victim returned home late and
found that her grandmother would not let her in the house. Cowans and the victim drove around
until Cowans decided where they would go for the night. They pulled in front of a house and
Cowans said that his cousin and his friend would be coming to the house. The victim went
inside with Cowans and did not see anyone.

        Cowans and the victim sat on the couch and watched television. After Cowans fell
asleep, someone knocked on the door. The victim tried to wake Cowans, but was unable to do
so. An elderly woman came out from one of the bedrooms and let in two men, who the victim
believed were Cowans’s cousin and his friend. According to the victim, one of the men asked
the victim if she smoked marijuana. She said yes and asked if it was “already rolled.” Both men
said no. They asked if she wanted to smoke and she said yes. The victim went to the bathroom
and, when she came out, the men were in a bedroom. She asked if they could smoke in the
living room near Cowans, but the men said no. After one of the men lit a marijuana blunt and
both men smoked it, one of the men brought the blunt to the victim, who was standing in the
doorway to the bedroom. After inhaling the marijuana, the victim became light-headed; after
inhaling a second time, her legs and feet started to become weak and she started to lose her
balance. The man who handed her the blunt caught her and brought her to the couch in the
bedroom.

        The victim testified that the men kept asking her if she was okay, but her tongue was
getting numb and she could not speak or move. One of the men shut the door to the bedroom.
They started asking each other about a condom, which neither of them had, and then debated
who would go first. One of the men tried to take the victim’s dress off from the top, but was
unable to do so. The men then lifted up her dress and laid her down, still arguing about who
would go first. One of the men pulled her dress up and the other man pulled down her
underwear. One of the men then put his penis in her vagina. The victim testified that she was
crying. The other man was rubbing the victim’s breast area. When the first man stopped, the
other man put his penis in the victim’s vagina. After the second man finished, the men started to
leave, but then one of them turned around and fixed the victim’s clothing. The men carried the
victim out to the living room and sat her in a chair. She was still unable to communicate, stand,
or walk. The men then left out the front door.

       Cowans testified that when he woke up, the victim was sitting in a chair in the corner
crying. The victim said that she wanted to get out of the house, and Cowans helped her to the
car. Cowans asked the victim why she was crying and she said, “[Y]our cousin and his friend
raped me.” After going back inside and confronting defendant and Williams, who denied the
sexual assault, Cowan took the victim to the hospital.

       Dr. Chada Reddy testified that she worked at Holy Cross Hospital in Detroit in July 2004
as an emergency room doctor and, based on a review of his chart, confirmed that he saw the
victim on July 4, 2004. He further testified that a rape kit was completed, and there would also
have been emergency room records, which he did not have; someone had informed him that the
records had been destroyed. Reddy testified regarding the information contained in the three
pages from the rape kit. Reddy did not know if there were more than three pages to the rape kit,
and he did not recall a need to order a toxicology report for the victim.

        Ulysha Hall, Deputy Chief of Police for the Detroit Police Department, was on patrol on
July 4, 2004. Dispatch sent her and her partner to Holy Cross Hospital, where she spoke with the
victim and produced a report. The victim identified her perpetrators as black males and provided
their nicknames, which were “T” and “Thug,” who also was called “Animal Thug.” Hall
notified the Sex Crimes Unit about the alleged assault.

        The victim’s rape kit was one of approximately 11,000 rape kits discovered in storage by
the Detroit Police Department in 2009. Kathy Fox, a forensic scientist with the Michigan State
Police in the Lansing Crime Lab, testified that a crime lab in Virginia analyzed the rape kit in




                                               -2-
2010.1 Fox explained that analysis revealed spermatozoa on the victim’s vaginal swabs and
semen on the victim’s dress, and that both the vaginal swabs and the dress were submitted for
DNA analysis. The DNA profile from the sperm fraction of the vaginal swabs was consistent
with the mixture of two foreign individuals, including a major male contributor (male one) and a
minor donor. The DNA profile obtained from the sperm fraction of the dress was consistent with
a male contributor (male two). In 2011, a search of the “Michigan State Police DNA Index
System Database”2 associated the sperm fraction on the dress with Cowans,3 and the sperm
fraction on the vaginal swabs with defendant.

       Detective Janet Sise, assigned to the Wayne County Prosecutor’s Sexual Assault Kit Task
Force, became the officer-in-charge of the victim’s case in 2014. In 2016, defendant and his
codefendant, Tyrod Lerenzo Williams, were charged with CSC-I under MCL 750.520b(1)(d)(i)
(defendant was aided or abetted by another person and knew that the victim was physically
helpless) and third-degree criminal sexual conduct (CSC-III) under MCL 750.520d(1)(c) (victim
physically helpless). They were tried jointly before one jury in 2017. The jury acquitted
Williams, but convicted defendant of CSC-I, and, as already indicated, the trial court sentenced
him to 15 to 30 years’ imprisonment.

                                           II. ANALYSIS

                             A. SCORING OF OFFENSE VARIABLES

         On appeal, defendant raises two challenges to his sentence. Defendant first contends that
the trial court erred in scoring offense variable (OV) 4 at 10 points because there was no
evidence that the victim suffered serious psychological injury. He also contends that the trial
court erred in scoring OV 8 at 15 points because there was no evidence that he removed the
victim to another place of greater danger or held her captive beyond the time necessary to
commit the charged crime. We disagree. We review for clear error the circuit court’s factual
determinations, which must be supported by a preponderance of the evidence. People v Smith,
318 Mich App 281, 284-285; 897 NW2d 743 (2016). “Whether the facts, as found, are adequate
to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law,
is a question of statutory interpretation, which an appellate court reviews de novo.” People v
Calloway, 500 Mich 180, 184; 895 NW2d 165 (2017).

        OV 4 addresses “psychological injury to a victim.” MCL 777.34(1). The trial court must
assign 10 points for OV 4 if “[s]erious psychological injury requiring professional treatment
occurred to a victim.” MCL 777.34(1)(a); MCL 777.34(2). “In making this determination, the
fact that treatment has not been sought is not conclusive.” MCL 777.34(2). “[A] trial court may
not simply assume that someone in the victim’s position would have suffered psychological


1
  Fox explained that when the Detroit Police discovered the rape kits, they looked for other crime
labs around the country to help process them in a timely manner.
2
    The witness likely was referring to CODIS, the Combined DNA Index System.
3
    Both the victim and Cowans testified that they had had sex in a park on their evening out.


                                                  -3-
harm because MCL 777.34 requires that serious psychological injury occurred to a victim, not
that a reasonable person in that situation would have suffered a serious psychological injury.”
People v White, 501 Mich 160, 163; 905 NW2d 228 (2017) (quotation marks and citation
omitted).

        In the present case, the victim testified that, because of the sexual assault, she went to
therapy. The victim’s impact statement, contained in defendant’s presentence investigation
report (PSIR), further indicates that the offense caused the victim to have “trust issues” and “a
difficult time maintaining relationship [sic] with men.” The victim stated that she “has been in
therapy and states she was psychologically traumatized as a result.” Defendant argues that there
was no documentary evidence to support the victim’s claims that she received counseling, but
such evidence is not required because it is not even necessary that a victim actually seek
treatment. The victim’s testimony and statements indicating that she went to therapy and was
psychologically traumatized were sufficient to establish by a preponderance of the evidence that
the victim suffered serious psychological injury requiring professional treatment. See also
People v Williams, 298 Mich App 121, 124; 825 NW2d 671 (2012) (noting that a victim’s
expression of fearfulness and anger can constitute sufficient evidence of psychological injury).
Thus, the trial court did not err by scoring OV 4 at 10 points.

        OV 8 addresses “victim asportation or captivity.” MCL 777.38(1). A trial court must
assign 15 points to OV 8 if “[a] victim was asported [i.e., carried away] to another place of
greater danger or to a situation of greater danger or was held captive beyond the time necessary
to commit the offense.” MCL 777.38(1)(a). “[M]ovement of a victim that is incidental to the
commission of a crime nonetheless qualifies as asportation under OV 8.” People v Barrera, 500
Mich 14, 22; 892 NW2d 789 (2017).

        The victim testified that she smoked marijuana in the doorway of the bedroom and, when
she felt weak and started to lose her balance, one of the defendants carried her to the couch in the
bedroom and shut the door. The closed bedroom, in which the victim was isolated from Cowans,
was a place or situation of greater danger to the victim because it reduced the likelihood that
Cowans would notice or discover the assault. Thus, the trial court did not clearly err by finding
that there was sufficient movement to a place of greater danger or a situation of greater danger,
and the trial court did not err by scoring OV 8 at 15 points.

                               B. DUE PROCESS VIOLATIONS

       Defendant raises the remaining issues addressed in this opinion in a standard 4 brief. 4
Defendant alleges two violations of his right to due process. He contends that his due process
rights were violated by the police’s failure to obtain the victim’s medical records before they
were destroyed, and by the six-year delay in bringing his case to trial. We review defendant’s
claim that he was denied due process de novo, and a trial court’s findings of fact for clear error.
See People v Vaughn, 491 Mich 642, 650; 821 NW2d 288 (2012). Generally, “[w]hether


4
  A “Standard 4” brief refers to a brief filed on behalf of an indigent criminal defendant pursuant
to Michigan Supreme Court Administrative Order 2004-6, Standard 4.


                                                -4-
defendant was denied his right to a speedy trial is an issue of constitutional law,” which is also
reviewed de novo. People v Williams, 475 Mich 245, 250; 716 NW2d 208 (2006). However,
because defendant’s speedy trial claim is unpreserved, our review is for plain error affecting
defendant’s substantial rights. See People v Carines, 460 Mich 750, 763-764; 597 NW2d 130
(1999).

        Turning first to defendant’s claim that the police violated his right to due process by
failing to obtain the victim’s medical records before they were destroyed, “[d]efendant bears the
burden of proving that any missing evidence was exculpatory or, in the case of failure to
preserve evidence, that the police acted in bad faith.” People v Bosca, 310 Mich App 1, 26; 871
NW2d 307 (2015). “Even when ‘potentially useful’ evidence is destroyed and the destruction
would constitute a violation of due process, the evidence must have been destroyed in bad faith.”
Id. at 27.

        To the extent that defendant alleges the prosecutor intentionally suppressed exculpatory
evidence in violation of Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), to
prevail, he must show that the evidence was exculpatory, the evidence was suppressed by the
state, and prejudice ensued. Bosca, 310 Mich App at 27-28. Defendant has not met this burden
because he has not established that the medical records at issue were exculpatory. He merely
alleges that they were potentially exculpatory. Even if the medical records contained a
toxicology report there is no indication what such report would have shown. Moreover, there is
no claim that the medical records were in the prosecution’s possession and the prosecution is not
required to secure discoverable information on behalf of defendant. Id. at 29 (stating that where
there was no evidence that the prosecution ever obtained the medical records, there was no
necessity to provide them to the defendant). Thus, defendant has not established a Brady
violation.

        To the extent that defendant argues that the police failed to preserve potentially useful
evidence, id. at 26, defendant fails to establish that the police acted in bad faith with regard to
obtaining the records before they were destroyed. Detective Sise’s testimony indicates that, by
the time she was assigned the case in 2014, had obtained the victim’s release for the records, and
had attempted to obtain the records, it was past the hospital’s 11-year retention period and the
records no longer existed. The prosecution argued that, although there was a CODIS match to
defendant in 2011, because the police prioritized investigating serial offenders before
investigating single offenders, they did not reach the subject case until 2016. Given these
circumstances, the trial court found that the prosecution did not intentionally delay, thus
effectively finding that the prosecution did not act in bad faith. These findings are not clearly
erroneous. Thus, because defendant fails to show that the police acted in bad faith, he fails to
establish that the failure to preserve the possibly exculpatory evidence violated his right to due
process.

       Turning to defendant’s contention of a due-process violation arising from delay in
bringing him to trial, the record does not support a speedy trial violation or substantial prejudice
from any prearrest delay. Defendant asserts that there was an unreasonable delay between the
time a CODIS match was obtained in 2011 and when his trial began in 2017. The majority of the
six-year delay that defendant relies upon preceded his arrest. Defendant was arrested on August
7, 2016, and his trial began on April 17, 2017. If the time between a defendant’s arrest and the

                                                -5-
start of trial is less than 18 months, the defendant has the burden to show that he or she suffered
prejudice. People v Waclawski, 286 Mich App 634, 665; 780 NW2d 321 (2009). The delay
between defendant’s arrest and the start of his trial was only eight months. Therefore, to
establish a due-process violation arising from this delay, defendant would have to show prejudice
based on acts that occurred during the same eight months. See id.

       In addition, in order to prevail on his claim of a due-process violation arising from
prearrest delay, defendant must show that actual and substantial prejudice resulted from the
delay. People v Patton, 285 Mich App 229, 237; 775 NW2d 610 (2009).

               Before dismissal may be granted because of prearrest delay there must be
       actual and substantial prejudice to the defendant’s right to a fair trial and an intent
       by the prosecution to gain a tactical advantage. Substantial prejudice is that
       which meaningfully impairs the defendant’s ability to defend against the charge in
       such a manner that the outcome of the proceedings was likely affected. [A]ctual
       and substantial prejudice requires more than generalized allegations. If a
       defendant demonstrates prejudice, the prosecution must then persuade the court
       that the reason for the delay sufficiently justified whatever prejudice resulted.
       [Id.]

“Defendant must present evidence of actual and substantial prejudice, not mere speculation. A
defendant cannot merely speculate generally that any delay resulted in lost memories, witnesses,
and evidence, even if the delay was an especially long one.” People v Woolfolk, 304 Mich App
450, 454; 848 NW2d 169 (2014) (citations omitted).

         As indicated above, the trial court did not err in finding that there was no intentional
delay by the prosecution. Nothing in the record suggests that the delay from defendant’s CODIS
match in 2011 until his arrest in 2016, occasioned primarily by law enforcement’s reasonable
decision to prioritize investigation of serial sex offenders over the investigation of single
offenders, was intended by the prosecution to gain a tactical advantage. In order to prove a due-
process violation arising from prearrest delay, defendant has to prove actual and substantial
prejudice and intentional delay to obtain a tactical advantage. Because he has not proved the
latter, we need not address the former.5 Defendant has not established a due-process violation.



5
  Even if we were to consider the matter, defendant has not established that the prearrest delay
resulted in actual and substantial prejudice. Defendant alleges that the delay resulted in the
destruction of potentially useful medical records and the death of “Pat,” the elderly woman who
let defendant and Williams in the house on the night of the sexual assault. It is not clear that the
medical records would be exculpatory, but even if they did not confirm the victim’s claim that
she was drugged, the victim’s testimony was nonetheless sufficient to establish the elements of
CSC-I. With regard to Pat, it was not clear that she had died or whether her testimony would
have benefitted defendant. Cowans testified at trial that he “heard she was deceased,” and while
she allegedly let defendant and Williams into the house that night, there is no indication that she
was an eyewitness to the sexual assault, given the victim’s testimony that the bedroom door was


                                                -6-
                               C. ADMISSION OF EVIDENCE

       Defendant next contends that the trial court erred by admitting incomplete medical
records as evidence at trial. Specifically, defendant argues that the rape kit documents were
more prejudicial than probative because the accompanying medical records were missing. We
disagree. Because defendant did not argue in the trial court, as he does on appeal, that the
admission of the documents from the rape kit, without the accompanying medical records, was
improper under MRE 403 (exclusion of relevant evidence on grounds of prejudice, confusion, or
waste of time), this issue is unpreserved. See People v Danto, 294 Mich App 596, 605; 822
NW2d 600 (2011) (”an objection on one ground is insufficient to preserve an appellate argument
based on a different ground.”). We review unpreserved claims of error for plain error affecting
defendant’s substantial rights. People v Shaw, 315 Mich App 668, 682; 892 NW2d 15 (2016).

        Defendant does not dispute that the rape kit documents were relevant. “All relevant
evidence is prejudicial to some extent. Exclusion is required under MRE 403 only when the
danger of unfair prejudice substantially outweighs the probative value of the evidence.” People
v Head, 323 Mich App 526, 541; 917 NW2d 752 (2018). “Unfair prejudice may exist where
there is a danger that the evidence will be given undue or preemptive weight by the jury or where
it would be inequitable to allow use of the evidence.” People v Blackston, 481 Mich 451, 462;
751 NW2d 408 (2008).

        The prejudice alleged by defendant is that the trial court admitted the rape kit documents
without the accompanying medical records, which would have included a toxicology report
showing any drugs in the victim’s system. The victim’s testimony at trial indicated that she may
have been drugged. Nonetheless, it is unknown what any toxicology report would have shown.
The trial court found that the toxicology report would have been relevant, but that it was not
clear who was prejudiced. Thus, defendant fails to establish any unfair prejudice from the
admission of the rape kit documents without the accompanying medical records. Moreover, in
closing, trial counsel argued that medical records were missing and that those records likely
would have shown what was in the victim’s system that night. Given that the jury was aware of
the missing medical records, it is unlikely that it gave undue weight to the rape kit documents.
Nor was it inequitable to allow the use of the rape kit documents in this case. Therefore,
defendant fails to establish plain error in the admission of the rape kit documents.




closed. Pat’s testimony could have confirmed or refuted that defendant was present that night;
however, there was no real dispute that defendant was present and had sexual intercourse with
the victim, given the DNA evidence. Accordingly, there is nothing to suggest that Pat’s
testimony would have been critical to the defense. Finally, if defendant demonstrated prejudice,
we would then have to consider whether the prosecution established that the reason for the delay
sufficiently justified whatever prejudice resulted, see Patton, 285 Mich App at 237, and, as
already indicated, there is no evidence of deliberate misconduct by the police or prosecution.




                                               -7-
                             D. SUFFICIENCY OF THE EVIDENCE

        Defendant also contends that there was insufficient evidence to support his conviction of
CSC-I under MCL 750.520b(1)(d) because an essential element of this offense is that the actor
be aided or abetted by another person and the jury found defendant’s alleged accomplice,
Williams, not guilty of the charged offense. Once again, we disagree. This Court reviews de
novo a challenge to the sufficiency of the evidence. People v Willis, 322 Mich App 579, 583;
914 NW2d 384 (2018). In determining whether sufficient evidence to support a conviction was
presented at trial, “this Court must view the evidence in a light most favorable to the prosecution
and determine whether a rational trier of fact could find that the essential elements of the crime
were proved beyond a reasonable doubt.” Id. Further, “a reviewing court is required to draw all
reasonable inferences and make credibility choices in support of the jury’s verdict.” People v
Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). “Whether conduct falls within the scope of
a criminal statute . . . is a question of statutory interpretation that [this Court] review[s] de novo.”
Willis, 322 Mich App at 584.

       Defendant was charged and convicted under MCL 750.520b(1)(d)(i), which provides:

              (1) A person is guilty of criminal sexual conduct in the first degree if he or
       she engages in sexual penetration with another person and if any of the following
       circumstances exists:

                                               * * *

               (d) The actor is aided or abetted by 1 or more other persons and either of
       the following circumstances exists:

              (i) The actor knows or has reason to know that the victim is mentally
       incapable, mentally incapacitated, or physically helpless.

        “The phrase ‘aids or abets’ is used to describe any type of assistance given to the
perpetrator of a crime by words or deeds that are intended to encourage, support, or incite the
commission of that crime.” People v Henderson, 306 Mich App 1, 10; 854 NW2d 234 (2014)
(quotation marks and some citations omitted). In order to establish that a person aided or abetted
the commission of a crime, prosecution must show

               that (1) the crime charged was committed by the defendant or
               some other person, (2) the defendant performed acts or gave
               encouragement that assisted the commission of the crime, and (3)
               the defendant intended the commission of the crime or had
               knowledge that the principal intended its commission at the time
               he gave aid and encouragement. [Id. (quotation marks and citation
               omitted).]

        Defendant contends that there was insufficient evidence to support his conviction because
an accomplice is a necessary element of the offense and the jury acquitted his alleged
accomplice, Williams, of all charges. Defendant is incorrect. The plain language of the relevant
statute does not include any express requirement that the person who aided or abetted the

                                                  -8-
defendant be convicted of any offense. See MCL 750.520b(1)(d). Rather, the statute merely
requires that the other person “aided or abetted” the defendant, which means that the other
person performed acts or gave encouragement that assisted the commission of the crime and
intended the commission of the crime or had knowledge that the principal intended its
commission at the time that the person gave aid or encouragement. Henderson, 306 Mich App at
10.6

        Despite his acquittal, there was sufficient evidence for the jury to find beyond a
reasonable doubt that Williams performed acts or gave encouragement that assisted defendant’s
commission of CSC-I and that Williams intended the commission of CSC-I, or had knowledge
that defendant intended its commission, at the time that Williams gave aid or encouragement.
The record shows that both men participated in offering the marijuana to the victim, both
repeatedly asked if she were okay, they discussed together whether either had a condom, and
they debated who would “go first.” The victim testified that one of the men lifted her dress up
and the other man pulled down her underwear. The victim’s testimony clearly established that
Williams performed acts that assisted in the commission of the crime. Williams’s intent that
CSC-I be committed, or knowledge that defendant intended to commit CSC-I, can be inferred
from his actions in assisting in removing the victim’s clothing, which occurred after the two men
discussed a condom and argued about who would “go first.” On this record, there was sufficient
evidence that Williams aided or abetted defendant. Defendant does not dispute the elements of
sexual penetration and that the victim was physically helpless. Therefore, there was sufficient
evidence to support defendant’s conviction of CSC-I under MCL 750.520b(1)(d)(i).

                       E. INEFFECTIVE ASSISTANCE OF COUNSEL

         Defendant contends that trial counsel was ineffective for failing to move for a directed
verdict of acquittal after the jury acquitted Williams of all charges. We disagree. Because
defendant failed to preserve his claim of ineffective assistance of counsel by moving for a new
trial or an evidentiary hearing in the trial court, our review “is limited to mistakes apparent from
the record.” People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012).

                A criminal defendant has the fundamental right to effective assistance of
       counsel. However, it is the defendant’s burden to prove that counsel did not
       provide effective assistance. To prove that defense counsel was not effective, the
       defendant must show that (1) defense counsel’s performance was so deficient that
       it fell below an objective standard of reasonableness and (2) there is a reasonable
       probability that defense counsel’s deficient performance prejudiced the defendant.


6
   This Court has held that in order to support a defendant’s conviction under MCL
750.520b(1)(d)(ii) under an aiding or abetting theory, it was not necessary to “show that a
specifically named individual was the guilty principal, but only that some individual was a guilty
principal.” People v Vaughn, 186 Mich App 376, 382; 465 NW2d 365 (1990). That a principal
need not be convicted in order to convict an aider and abettor under MCL 750.520b(1)(d) lends
support to the conclusion that an aider and abettor need not be convicted in order to convict a
principal under the statute.


                                                -9-
       The defendant was prejudiced if, but for defense counsel’s errors, the result of the
       proceeding would have been different. [Id. at 80-81.]

        As discussed above, defendant’s conviction of CSC-I under MCL 750.520b(1)(d)(i) did
not require Williams to be convicted of having committed either charged offense. It merely
required the jury to find beyond a reasonable doubt that Williams aided or abetted defendant.
Accordingly, trial counsel’s failure to move for a directed verdict of acquittal after the jury
acquitted Williams did not fall below an objective standard of reasonableness nor affect the
outcome of the trial. People v Horn, 279 Mich App 31, 39-40; 755 NW2d 212 (2008) (noting
that counsel is not ineffective for failing to make a futile motion). Therefore, defendant was not
denied the effective assistance of counsel.

       Affirmed.

                                                            /s/ Kathleen Jansen
                                                            /s/ Jane M. Beckering
                                                            /s/ Colleen A. O’Brien




                                              -10-
