                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     November 22, 2016
               Plaintiff-Appellee,

v                                                                    No. 327873
                                                                     Leelanau Circuit Court
WILLIAM CLYDE HARRIS,                                                LC No. 2015-001858-FC

               Defendant-Appellant.


Before: TALBOT, C.J., and O’CONNELL and OWENS, JJ.

PER CURIAM.

      A jury convicted defendant of one count of second-degree home invasion,1 MCL
750.110a(3), and the trial court sentenced defendant as an habitual offender, fourth offense,
MCL 769.12, to a prison term of 10 to 25 years. Defendant appeals as of right. We affirm.

       Defendant’s conviction arises from a home invasion that occurred at the home of John
Lata on Windcrest Court in Traverse City on May 24, 2012. Tosha Barbee testified, pursuant to
a plea agreement, that she and defendant broke into a number of homes in Leelanau County,
including the Lata home, to steal items that they could sell to support their drug habit.

                                                 I

         Defendant first argues that prosecutor error denied him a fair trial. He complains that the
prosecutor elicited “vouching testimony from Detective Bailey about the actions he took to make
sure he had the right people and by his comments in closing argument denigrating Mr. Harris” by
“telling the jury that he was glad Mr. Harris told his tale.” This quotation is the entirety of
defendant’s argument. Defendant has not identified the allegedly improperly elicited testimony,
nor has he explained how the testimony and remarks were improper or how they deprived him of
a fair trial. Defendant’s argument on this unpreserved issue is cursory and does not explain or
rationalize defendant’s position. An appellant’s failure to address the merits of his assertion of
error constitutes abandonment of the issue. People v Harris, 261 Mich App 44, 50; 680 NW2d


1
 The jury could not reach a verdict on four additional counts of second-degree home invasion
and the trial court declared a mistrial and dismissed the charges without prejudice.


                                                -1-
17 (2004).2 And, because defendant failed to establish plain error related to the prosecutor’s
questions or remarks, his related claim that counsel was ineffective for failing to object also fails.

                                                  II

       Defendant argues that he was denied the effective assistance of counsel because his
counsel failed to impeach two witnesses’ testimony regarding Barbee’s truthfulness with
inconsistent statements that the witnesses allegedly made during the course of the investigation.
Defendant failed to preserve this claim by raising it in a motion for a new trial or a Ginther3
hearing in the lower court. This Court’s review of unpreserved ineffective assistance of counsel
claims is limited to mistakes apparent on the record. People v Davis, 250 Mich App 357, 368;
649 NW2d 94 (2002).

        In support of this argument, defendant has attached to his Standard 4 brief a copy of an e-
mail from a defense private investigator to defense counsel that summarizes what the
investigator was told by a number of witnesses that he interviewed, including the witnesses who
defendant argues should have been impeached at trial. The attached document, however, is not a
part of the lower court record and therefore constitutes an impermissible attempt to expand the
record on appeal.4 See People v Powell, 235 Mich App 557, 561 n 4; 599 NW2d 499 (1999).
Because defendant has failed to establish the factual predicate for his claim, it necessarily fails.
See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

                                                 III

        The remainder of defendant’s arguments have been raised in a Standard 4 brief.
Defendant argues that the prosecution presented insufficient evidence to support defendant’s
conviction. When reviewing a sufficiency challenge, “evidence is reviewed de novo, in a light
most favorable to the prosecution, to determine whether the evidence would justify a rational
jury’s finding that the defendant was guilty beyond a reasonable doubt.” People v McGhee, 268
Mich App 600, 622; 709 NW2d 595 (2005).

        “Due process requires that the prosecutor introduce sufficient evidence which could
justify a trier of fact in reasonably concluding that defendant is guilty beyond a reasonable doubt
before a defendant can be convicted of a criminal offense.” People v Hampton, 407 Mich 354,
368; 285 NW2d 284 (1979). “All conflicts in the evidence must be resolved in favor of the
prosecution and [this Court] will not interfere with the jury’s determinations regarding the


2
  Nonetheless, a review of the transcript pages cited by defendant reveals no plain error. People
v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
3
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
4
  The e-mail was discussed on the record in connection with a letter from the private investigator
to defense counsel with regard to concerns that he had about testifying that day. The prosecutor
stated that he had never received a copy of the e-mail, and the e-mail was not admitted into
evidence.


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weight of the evidence and the credibility of the witnesses.” People v Unger, 278 Mich App
210, 222; 749 NW2d 272 (2008). “Circumstantial evidence and reasonable inferences arising
from that evidence can constitute satisfactory proof of the elements of a crime.” People v Allen,
201 Mich App 98, 100; 505 NW2d 869 (1993).

       Defendant was convicted of second-degree home invasion, MCL 750.110a(3), which
provides:

       A person who breaks and enters a dwelling with intent to commit a felony,
       larceny, or assault in the dwelling, a person who enters a dwelling without
       permission with intent to commit a felony, larceny, or assault in the dwelling, or a
       person who breaks and enters a dwelling or enters a dwelling without permission
       and, at any time while he or she is entering, present in, or exiting the dwelling,
       commits a felony, larceny, or assault is guilty of home invasion in the second
       degree.

        The gist of defendant’s argument is that Barbee was a liar and not a credible witness, that
she was “coached,” and that no physical evidence linked him to the Lata home invasion.
However, as noted above, credibility of a witness is a determination for the jury, and
circumstantial evidence and reasonable inferences arising from that evidence can constitute
satisfactory proof of the elements of a crime.

        Here, the prosecution presented evidence that Barbee owned a red Dodge Durango at the
time of the Lata home invasion and that a red Dodge Durango containing a white male driver, a
female passenger, and a dog was observed on May 24, 2012, driving up the private road leading
to the Lata home as Robert Lata, John’s son, was driving away from the home. Luke Johnson, a
neighbor of the Latas, observed the Durango parked at the Lata residence. Barbee testified that
she and defendant drove to the Lata home in her Durango and that defendant was driving and she
was in the passenger seat. Barbee testified that she and defendant were wearing gloves when
they broke into the Lata home and stole a loaded gun safe, marijuana, DVDs, electronics, and
jewelry. She testified that defendant was from the Flint area and that she and defendant drove to
Flint and sold the stolen items to drug dealers in exchange for drugs and cash. Two guns stolen
from the Lata home were recovered in the Flint area. Viewed in the light most favorable to the
prosecution and leaving issues of credibility to the trier of fact, the evidence presented was
sufficient to allow a reasonable trier of fact to find beyond a reasonable doubt that defendant
broke into and entered the Lata residence and committed the offense of larceny. The evidence
was sufficient to support the jury’s finding that defendant committed second-degree home
invasion.

                                                IV

       Defendant also argues that the prosecutor denied him of a fair trial by threatening
defendant’s private investigator, causing him to invoke his Fifth Amendment privilege and
denying defendant the right to present witnesses in his own defense. This Court reviews de novo
issues of prosecutor misconduct to determine whether the defendant was denied a fair and
impartial trial. People v Bennett, 290 Mich App 465, 475; 802 NW2d 627 (2010).


                                                -3-
        We are unable to discern defendant’s argument with respect to the private investigator’s
testimony because, even though the investigator had initially stated in a letter to defense counsel
that he was unable to testify, the investigator never invoked his Fifth Amendment privilege, was
specifically granted immunity, and did testify at trial. Even assuming that the prosecutor
intimated the witness, the intimidation did not result in the witness’s unavailability and did not
violate defendant’s right to present witnesses in his own defense. Consequently, defendant was
not denied a fair and impartial trial.

                                                 V

        Defendant asserts that he was denied a fair trial by the prosecutor’s presentation of
Barbee’s testimony, which he characterizes as “false.” The record does not support defendant’s
claim that the prosecutor knowingly presented or failed to correct false testimony at trial. A
defendant’s due process rights are violated when his conviction is “obtained through the
knowing use of perjured testimony.” People v Aceval, 282 Mich App 379, 389; 764 NW2d 285
(2009). “[A] prosecutor has an obligation to correct perjured testimony that relates to the facts of
the case or a witness’s credibility.” People v Gratsch, 299 Mich App 604, 619; 831 NW2d 462
(2013), vacated in part on other grounds 495 Mich 876 (2013). Here, defendant’s claim of
misconduct is predicated on Barbee’s testimony that when she was using drugs she would lie and
“say anything to get out of trouble.” Barbee testified throughout the trial that she had lied to the
police, that she had lied to her grandmother, and that she had lied to defendant when she was in
jail. She also testified, however, that she was no longer taking drugs, that she was in prison and
wanted to turn her life around, and that she was testifying truthfully at trial. Defendant has not
established that the prosecutor knowingly allowed false testimony to stand uncorrected.

                                                VI

        Defendant argues that the trial court erred by admitting evidence of defendant’s 2007
conviction for breaking and entering. Defense counsel conceded in his second motion in limine
that the 2007 conviction was “admissible under MRE 404(b) and/or MRE 609.”5 This issue has
been waived. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).

                                                VII

        Defendant maintains that the trial court abused its discretion by admitting evidence of
jailhouse recorded phone conversations between defendant and Barbee. Defendant cites only
“Tr V, p 54” in support of his assertion that he was prejudiced when the jury was informed that
the calls were recorded at the county jail. Defendant did not object and, in fact, it was defense
counsel who introduced the recorded conversation. This issue is waived.




5
 The prosecution moved in limine for a ruling regarding the admissibility of the 2007 conviction
under MRE 609. Contrary to defendant’s argument in his Standard 4 brief, the prosecution did
not move to admit evidence of the prior conviction under MRE 404(b).


                                                -4-
         Defendant also cursorily asserts that the recorded conversations were erroneously
admitted to inflame the jury and that the trial court erred by refusing to listen to the
conversations before admitting them. Defendant cites only general case law regarding the
admissibility of evidence and does not provide any authority in support of his specific assertions.
He does not provide any analysis of the issue and has provided no citation to the record. “An
appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims, nor may he give only cursory treatment [of an issue] with
little or no citation of supporting authority” (citation and quotation marks omitted). People v
Schumacher, 276 Mich App 165, 178; 740 NW2d 534 (2008). This argument is abandoned.

                                               VIII

       Defendant contends that he was denied a fair trial because the trial court allowed the
prosecutor to ask defendant if he was guilty. Because defendant did not object to the questions
challenged on appeal, our review is limited to plain error affecting defendant’s substantial rights.
Carines, 460 Mich at 763-764.

        It is impermissible for a witness to express his or her opinion regarding the defendant’s
guilt or innocence. People v Parks, 57 Mich App 738, 750; 226 NW2d 710 (1975). This
determination must be left to the trier of fact with few exceptions. People v Bragdon, 142 Mich
App 197, 199; 369 NW2d 208 (1985). Reading in context the testimony that this Court assumes
defendant is challenging, it is apparent that the prosecutor’s cross-examination was responsive to
defendant’s testimony on direct examination that he was not involved in any of the home
invasions for which he was charged. This case is distinguishable from Bragdon, where the
prosecutor openly asked the defendant, “So you’re guilty of the crime?” Id. at 199. No such
inquiry was directed to defendant in this case. Defendant has failed to demonstrate plain error
affecting his substantial rights.

                                                IX

        Defendant argues that the trial court erred by granting a mistrial and dismissing without
prejudice the four counts on which the jury was unable to reach a verdict. He contends that the
court was required to provide the jury with a deadlocked jury instruction because “the court is
required to instruct the jury on the law applicable to the case” and, in the alternative, he argues
that the dismissal should have been with prejudice because dismissal without prejudice subjects
him to the possibility of double jeopardy.

        Contrary to defendant’s assertion, a deadlocked jury instruction is not an instruction on
“the law applicable to the case.” Here, the prosecutor agreed to dismiss the four charges and not
retry defendant on the charges except in the “unlikely event that this Court were to reverse”
defendant’s lone conviction. The trial court did not err by declaring a mistrial as a result of the
jury’s inability to reach a verdict with respect to the four counts.

       Further, because the trial court declared a mistrial as the result of a hung jury, jeopardy
did not attach and, therefore, double jeopardy would not preclude a retrial on the four counts in
the event that this Court were to reverse defendant’s conviction. People v Ackah–Essien, 311
Mich App 13, 32; 874 NW2d 172 (2015).

                                                -5-
Affirmed.




                  /s/ Michael J. Talbot
                  /s/ Peter D. O'Connell
                  /s/ Donald S. Owens




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