                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    July 6, 2017
               Plaintiff-Appellee,

v                                                                   No. 331818
                                                                    Washtenaw Circuit Court
GEORGIO MACK,                                                       LC No. 15-000591-FH

               Defendant-Appellant.


Before: TALBOT, C.J., and BECKERING and M. J. KELLY, JJ.

PER CURIAM.

        A jury convicted defendant, Georgio Mack, of felon in possession of a firearm, MCL
750.224f(2), carrying a concealed weapon (CCW), MCL 750.227, assaulting, resisting, or
obstructing a police officer, MCL 750.81d(1), and possession of marijuana, MCL
333.7403(2)(d). The trial court sentenced him to prison terms of one to five years for felon in
possession, one to five years for CCW, one to two years for assaulting, resisting, or obstructing a
police officer, and 195 days for possession of marijuana. Defendant appeals by right. We
affirm.

                                I. FACTUAL BACKGROUND

       On June 12, 2015, at approximately 7:30 p.m., several members of the Washtenaw
County Sheriff’s Department arrived at 1161 DeSoto Avenue, in Ypsilanti Township, in
response to a 911 call regarding a black male armed with a gun arguing with a black female in
front of a Dodge Charger. Sheriff’s Deputy Erin Larkin testified at defendant’s trial that she
approached a parked car matching the description given by dispatch. When Larkin asked the
female driver to roll down her window, the driver shook her head and drove away from the
scene.

        Sergeant Charles Hunt testified that, just as this was happening, he turned onto DeSoto
and blocked the roadway with his patrol car, stopping the car again. Hunt testified that he exited
his patrol car and saw through the front driver’s window of the suspect car a black woman in the
driver’s seat, a black man in the passenger seat matching the description given by dispatch, and
“several children in the backseat.” Hunt stated that he ordered the man and woman to exit the




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car, but the man—being defendant—“adamantly refused.” Hunt testified that defendant was
“moving around at times, reaching around,” prompting police to order him to show them his
hands.1 At one point, Hunt recounted, the female driver started the car’s engine and attempted to
put it in gear, and officers ordered her to turn off the engine. Hunt stated that after the driver
turned off the car’s engine, the occupants rolled down the windows enough for him to reach in
and unlock a door when defendant was distracted. Defendant exited the car and an officer
immediately handcuffed him. Officers found a loaded gun registered to someone other than the
occupants of the car, with its handle protruding onto the back floorboard from underneath the
passenger seat where defendant had been sitting. They searched defendant and found a “golf ball
sized baggie” of marijuana.

                                         II. ANALYSIS

       Defendant first contends that a cautionary instruction, given by the trial court to limit the
jury’s use of testimony regarding the content of the 911 call and dispatch’s response, was
inadequate. However, defense counsel approved the instruction given, thus waiving his claim of
error. People v Carter, 462 Mich 206, 215-216; 612 NW2d 144 (2000) (indicating that defense
counsel’s approval of a trial court’s response constitutes a waiver of the issue on appeal.)
Because defendant waived the issue, there is no “error” to review. Id. at 219.

       Defendant next contends that trial counsel was ineffective for failing to challenge the
adequacy of the aforementioned cautionary instruction. We disagree. Defendant failed to
preserve his claim of ineffective assistance of counsel by moving for a new trial or an evidentiary
hearing on this ground, People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012), and thus,
this Court’s review is limited to errors apparent on the record, id., and to plain error affecting
defendant’s substantial rights, People v Jones, 468 Mich 345, 355; 662 NW2d 376 (2003).
Defendant states, however, that the record is fully developed to address the matter.

        The United States Constitution and the Michigan Constitution guarantee the right to
effective assistance of counsel. US Const, Am VI; Const 1963, art 1 § 20; United States v
Cronic, 466 US 648, 653-654; 104 S Ct 2039; 80 L Ed 2d 657 (1984); People v Vaughn, 491
Mich 642, 669 n 104; 821 NW2d 288 (2012). To prove that he received constitutionally
ineffective assistance, defendant must show that counsel’s representation fell below an objective
standard of reasonableness and that, but for counsel’s deficient performance, there is a
reasonable probability that the result of the proceedings would have been different. Strickland v
Washington, 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

       The jury instruction at issue was given during Larkin’s testimony. The prosecutor asked
Larkin what brought her to the area in question, and Larkin responded that “Dispatch
broadcasted that there was a possible man with a gun in the area of 1161 DeSoto.” Larkin


1
  Deputy Jeffrey Gontarski testified that he observed the passenger of the car “actually reaching
down underneath of his seat with his hand in an extended motion under the seat . . . he was
sitting in.”


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testified regarding how she responded to that call, and when asked what she was looking for
upon arrival at that address, she answered, “The dispatch call was for a black male and a black
female arguing in front—”. At this point, defense counsel objected and stated, “Your Honor, I’m
sorry. I don’t object to the question or the answer, but . . . I’m asking that the jury be told that
this is not to be taken as being true but simply the reason why she was dispatched to that
location.” The prosecutor expressly agreed, stating that the testimony was “not for the truth of
the matter asserted.” The court also agreed, instructing the jury as follows: “Right. It would be
hearsay except that it’s not being offered for the truth of the matter asserted which is the
definition of hearsay. So, treat it as such.” Defense counsel thanked the court, and Larkin
proceeded to testify. Other officers also testified regarding the fact that they were dispatched
because of a man with a gun, and defense counsel did not object or seek further instruction from
the court.

        Defendant argues that this limiting instruction was deficient because the trial court did
not explain to the jury what “hearsay” means, and thus, that defense counsel’s failure to request a
sufficient instruction constituted performance below an objective standard of reasonableness, and
that defendant was prejudiced as a result.

        Assuming arguendo that defense counsel was ineffective in failing to solicit from the trial
court a more detailed explanation of the evidentiary rules and limited use of the evidence in its
instruction, defendant’s claim of ineffective assistance nevertheless fails because he cannot show
the requisite prejudice. Read in context, the trial court’s limiting instruction instructed the jury
to consider Larkin’s testimony only as an explanation of why she went to the location where she
found defendant. The context for the court’s instruction was trial counsel’s express request—and
the prosecutor’s agreement with that request—that the jury not consider the information for the
truthfulness of the underlying facts, i.e., that there was a black male with a gun at the designated
location, and that that man was defendant. Even if the trial court did not provide a technical
explanation of what hearsay is, the court nevertheless conveyed the limits on the jury’s use of the
testimony at issue when it stated that the prosecution was not offering the testimony for the truth
of the matter asserted. Defendant’s trial counsel reiterated the court’s explanation in his closing,
indicating that the content of the 911 call was not admitted for its truthfulness, but “for the
limited purpose of explaining why the police went to the location that they did[,]” and, therefore,
could not be used to determine whether defendant “ever possessed a gun.”

        In addition to its cautionary instruction, the trial court also instructed the jury that it
should begin its deliberations with the presumption of defendant’s innocence, and that this
presumption entitled defendant to a “not guilty” verdict unless the jury found that the prosecution
had proved every element of the charged crimes beyond a reasonable doubt. “Jurors are
presumed to follow their instructions, and instructions are presumed to cure most errors.” People
v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003). Here, the trial court’s limiting
instruction, viewed in its context, and the court’s instruction regarding the presumption of
defendant’s innocence are presumed to cure any error from trial counsel’s failure to request a
more thorough explanation of “hearsay,” especially when the testimony was not being admitted
for the truth of the matter asserted and the lawyers and the court all made that point to the jury.

        In light of the substantive evidence of defendant’s guilt, including his adamant refusal to
exit the car despite what had to have been “a hundred” requests to do so, according to Hunt,

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observations of defendant reaching down underneath and around his seat, and the presence of a
loaded gun directly under his seat, we conclude that defendant has not established a reasonable
probability of a different outcome.

        Finally, defendant argues—and the prosecution agrees—that defendant’s judgment of
sentence contained contradictory statements about whether the sentence imposed for resisting
and obstructing was to be served consecutively or concurrently to his other offenses. On October
14, 2016, defendant filed a motion to remand to the trial court for correction of an invalid
sentence, which this Court granted on November 29, 2016. People v Mack, unpublished order of
the Court of Appeals, entered November 29, 2016 (Docket No. 331818). On January 23, 2017,
the trial court filed an amended judgment of sentence clarifying its sentence. Therefore, this
issue is moot because defendant has already received the remedy he sought. People v Mansour,
206 Mich App 81, 82; 520 NW2d 646 (1994) (“An issue is moot when the occurrence of an
event renders it impossible for the court to fashion a remedy.”).

       Affirmed.



                                                           /s/ Michael J. Talbot
                                                           /s/ Jane M. Beckering
                                                           /s/ Michael J. Kelly




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