                          STATE OF MICHIGAN

                            COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     July 3, 2018
               Plaintiff-Appellee,

v                                                                    No. 335906
                                                                     Saginaw Circuit Court
TERRANCE ANTHONY FURLINE,                                            LC No. 16-042043-FH

               Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

v                                                                    No. 336203
                                                                     Saginaw Circuit Court
ALVIN BERNARD JENKINS, SR,                                           LC No. 16-042044-FH

               Defendant-Appellant.


Before: O’BRIEN, P.J., and CAVANAGH and STEPHENS, JJ.

PER CURIAM.

       Defendants appeal as of right their jury convictions of conducting a criminal enterprise,
MCL 750.159i(1), third-degree arson, MCL 750.74, conspiracy to commit third-degree arson,
MCL 750.157a; MCL 750.157a, first-degree retail fraud, MCL 750.356c, and conspiracy to
commit first-degree retail fraud, MCL 750.356c(2); MCL 750.157a. They were each sentenced
as a fourth habitual offender, MCL 769.12, to 320 months to 50 years’ imprisonment for all
convictions. In both docket numbers 335906 and 336203, we vacate the defendants’ convictions
and sentences and remand for a new trial.

                                       I. BACKGROUND

       Defendants’ convictions stem from a fire and attempted theft that occurred on October
29, 2015, at the Home Depot in Kochville Township, Saginaw, Michigan. The day before on
October 28, there was a completed theft and fire at the Flint Township Home Depot.
Defendants’ devised to start a fire in the store as a distraction in order to steal and then return
items without a receipt for store gift cards that were later sold to third parties for cash. An item



                                                -1-
taken from the Flint Township Home Depot was returned without a receipt to the Lowe’s store in
Burton, Michigan. Signatures were required for the returns. Multiple employees, who were
working the morning shift at the Saginaw Home Depot on October 29, identified defendants in
court. Defendants were also identified by loss prevention personnel from the two home
improvement stores’ video surveillance footage. Vehicles used in the heists were identified by
the defendants’ girlfriends as belonging to them. Items of clothing similar to that worn by the
persons seen in video surveillance were seized from the respective girlfriends’ residence where
each defendant stayed. Jenkins’s cellphone mapped his location as it moved to each store. Fire
inspectors determined the cause of the fires at the Flint and Saginaw Home Depot stores to be
arson. The fire at the Saginaw Home Depot in particular caused over a half million dollars in
damage.

                                    II. DOCKET NO. 335906

       In docket number 335906, defendant Furline seeks a new trial on grounds that his
convictions were against the great weight of the evidence and the joinder of his trial with
defendant Jenkins denied him a fair trial. He further seeks resentencing because he argues his
sentence was unreasonable and not proportionate to the seriousness of the circumstances.

                          A. GREAT WEIGHT OF THE EVIDENCE

        We review de novo a challenge to the sufficiency of the evidence. People v Harverson,
291 Mich App 171, 177; 804 NW2d 757 (2010). “We view the evidence in the light most
favorable to the prosecution to determine whether a rational trier of fact could have found the
essential elements of the crime to have been proved beyond a reasonable doubt.” People v
Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). “[A] reviewing court is required to
draw all reasonable inferences and make credibility choices in support of the jury verdict.”
People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). “The prosecutor is not required to
present direct evidence linking the defendant to the crime.” People v Saunders, 189 Mich App
494, 495; 473 NW2d 755 (1991). “Circumstantial evidence and reasonable inferences arising
from that evidence can constitute satisfactory proof of the elements of a crime.” People v.
Carines, 460 Mich 750, 757; 597 NW2d 130 (1999).

        We review “a trial court’s grant or denial of a new trial on the ground that the verdict was
against the great weight of the evidence” for an abuse of discretion. People v Unger, 278 Mich
App 210, 232; 749 NW2d 272 (2008). “A trial court abuses its discretion when it selects an
outcome that does not fall within the range of reasonable and principled outcomes.” People v
Young, 276 Mich App 446, 448; 740 NW2d 347 (2007).

        “A trial court may grant a motion for a new trial based on the great weight of the
evidence only if the evidence preponderates so heavily against the verdict that it would be a
miscarriage of justice to allow the verdict to stand.” Unger, 278 Mich App at 232 (citation
omitted). “Conflicting testimony and questions of witness credibility are generally insufficient
grounds for granting a new trial,” and “[a]bsent exceptional circumstances, issues of witness
credibility are for the trier of fact.” Id. Generally, “a verdict may be vacated only when the
evidence does not reasonably support it and it was more likely the result of causes outside the
record, such as passion, prejudice, sympathy, or some other extraneous influence.” People v


                                                -2-
Lacalamita, 286 Mich App 467, 469; 780 NW2d 311 (2009). “[W]hether the evidence was
sufficient to sustain a conviction and whether the verdict was against the great weight of the
evidence are two separate questions.” People v Brown, 239 Mich App 735, 746 n 6; 610 NW2d
234 (2000). However, where, as here, the defendant’s “great weight” argument is premised on
his “sufficiency of evidence” claim, the failure or success of one argument necessarily means the
same result for the other. Id.

       Furline argues that there was insufficient evidence to convict him of “conducting a
criminal enterprise” and, therefore, his conviction for this crime was against the great weight of
the evidence, because there was no evidence of a “pattern of racketeering activity” or that the
arson was done for financial gain. Under MCL 750.159i(1),

       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.

“ ‘[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 . . .” MCL 750.159(g). To prove a “pattern of racketeering,” the plaintiff must show

       “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.

        (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. [MCL 750.159f(c)].

Plaintiff further charged Furline and Jenkins with first-degree retail fraud and third-degree arson
under an aiding and abetting theory. To be convicted under an aiding and abetting theory, the
plaintiff must prove:

       (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 that [the
       defendant] gave aid and encouragement. [People v Robinson, 475 Mich 1, 6; 715
       NW2d 44 (2006).]

       Furline first argues that there was insufficient evidence to establish a “pattern of
racketeering” to convict him of conducting a criminal enterprise because there was no evidence


                                                -3-
that he participated in “2 incidents of racketeering” or that “[t]he incidents amount[ed] to or
pose[d] a threat of continued criminal activity.” MCL 750.159f(c)(ii). The record does support
the argument that Furline was not involved in setting the fire at or removing items from the Flint
Home Depot. However, there was evidence of his knowledge of the theft and subsequent
participation in the activities underlying the fraudulent return of the stolen items. Furline’s
mother Doris Furline-Walker testified without contradiction that her son was merely present
during the actual theft and arson at the Flint Home Depot. However her testimony to the
contrary, there was a receipt bearing her son’s name for the return of the item stolen from the
Flint store, that indicated he participated in the crime after the fire to obtain financial gain. We
agree that Walker maintained that she was the one who did the non-receipt return, even after the
court showed her the exhibit of the October 28 Home Depot return receipt with her son’s
signature. Walker also testified that she shared some of the profits of that return with her son.
The jury could reasonably infer from Walker’s testimony that Furline was involved in the Flint
Home Depot offenses and that they were done for financial gain.

         The argument of mere presence at the Saginaw Home Depot is also unavailing. Walker
testified that Jenkins contacted her later on October 28 and asked if she wanted to go with him
the next day to steal from the Saginaw Home Depot and she declined. However, the next day
when Walker awakened, her son Furline was not home. Video surveillance, phone mapping
evidence, and witness testimony showed Furline was at the Saginaw Home Depot with Jenkins.
Evidence introduced at trial showed that once at the Saginaw Home Depot, Furline requested
assistance from employee Mason Martinez with putting the most expensive power washer on a
flatbed cart. After gathering other “big ticket items,” the cart was passed to Jenkins who placed
himself by the exit at the pro desk. This handoff between them was similar to the modus
operandi at the Burton Lowe’s store with the two faucets. Other evidence suggested Furline
stayed behind in aisle 13 where employee Jacob Tyson noticed him just standing around and
asked if he needed any help. Tyson testified that moments later Furline notified him of a fire in
aisle 13. It is true that no one witnessed who started the fire and Walker testified that Jenkins
admitted to her that he started the fire. However, when the fire started, video surveillance and
employee Kathy Marciak’s testimony placed Jenkins at the pro desk and Tyson’s testimony
placed Furline in aisle 13. Fire Captain Michael Comstock, Sergeant Lenny Jaskulka, and fire
investigator Brandon Rossi all identified the origin of the fire to be in aisle 13. Further, there
was no evidence of Furline being anywhere else in the store besides aisle 13 around the time the
fire began, or of other persons besides him being in aisle 13 when the fire started. From this
evidence, a jury could reasonably infer that Furline was more than merely present at the scene
with Jenkins at the Saginaw Home Depot on October 29 and that he was involved in the events
that took place there. Further, Furline’s calling the arson at the Saginaw Home Depot a
“diversionary tactic,” no less makes it an offense committed for financial gain under MCL
750.159(g). The fire was set for the purpose of stealing items that defendants could turn around
and return for cash.

        Furline also argues that the Flint and Saginaw incidents did not amount to or pose a threat
of continued criminal activity under MCL 750.159f(c)(ii), because there was no evidence that
defendants were planning a third theft or arson. Furline’s contention reads a requirement into the
statute that does not exist. To prove a pattern of racketeering, there is no requirement of there
being a plan of a third incident. Rather, the plaintiff must prove that two incidents of
racketeering amounted to or posed a threat of continued criminal activity. The jury had


                                                -4-
sufficient evidence upon which to conclude that had the Saginaw plan succeeded there would
have been another criminal effort. Other stores feared for such activity. In fact, Michael Stowe,
assistant store manager at the Saginaw Home Depot, advised associates at their morning meeting
of the possibility of the defendants coming there and for them to be on the lookout. Not only
Home Depot, but Lowe’s also understood the Flint arson and theft as posing a threat of
continued criminal activity. The events at Flint caused the loss prevention manager at the Flint
Township Lowe’s store to reach out to the loss prevention manager at the Burton Lowe’s store,
only to find out that defendants had already been there. Defendants’ continued criminal activity
was actually only interrupted by the failed attempt to remove over $1,000 in items from the
Saginaw store. In keeping in line with their prior pattern of conduct, had their plan in Saginaw
succeeded, another home improvement store would have fallen victim to defendant’s non-receipt
return scheme.

       Viewed in a light most favorable to the prosecution, the evidence was sufficient from
which a rational trier of fact could have found that Furline, acting in concert with Jenkins,
entered the Flint and Saginaw Home Depots with the intent of starting fires to permanently
deprive the stores of their property.

                                           B. JOINDER

        “The decision as to whether codefendants will be tried separately or jointly rests within
the sound discretion of the trial judge and will not be reversed on appeal absent an abuse of that
discretion.” People v Hicks, 185 Mich App 107, 117; 460 NW2d 569 (1990). “An abuse of
discretion occurs when the court chooses an outcome that falls outside the range of reasonable
and principled outcomes.” Unger, 278 Mich App at 217.

       In People v Hana, our Supreme Court held,

       pursuant to M.C.L. § 768.5; M.S.A. § 28.1028, 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 indication on appeal that the
       requisite prejudice in fact occurred at trial, will preclude reversal of a joinder
       decision. [People v Hana, 447 Mich 325, 346–47; 524 NW2d 682, amended on
       reh in part sub nom. People v Gallina, 447 Mich 1203; 524 NW2d 710 (1994),
       and amended on reh in part sub nom. People v Rode, 447 Mich 1203; 524 NW2d
       710 (1994)

According to Hana, a showing that defendants’ separate defenses are “ ‘mutually exclusive’ or
‘irreconcilable’ ” would establish prejudice and mandate severance. Id. at 349. Further,
defenses are “mutually exclusive,” “if the jury, in order to believe the core of the evidence
offered on behalf of one defendant, must disbelieve the core of the evidence offered on behalf of
the co-defendant.” Hana, 447 Mich at 349-350.




                                                -5-
        Furline’s counsel motioned the court for separate trials on April 14, 2016, based on
discovery he received of Jenkins’s recorded interview statements to detectives that disavowed
involvement in the Saginaw Home Depot theft and fire, and blamed both events on Furline.
Furline’s counsel contended that Furline’s theory of the case was that Jenkins acted alone in
committing the arson and retail fraud. The motion went on to argue, that in the event Jenkins’s
videotaped statements were played for the jury, he would be denied his right to confrontation and
a Bruton situation would arise. 1 Furline’s counsel concluded that defendants’ defenses were
mutually exclusive and antagonistic, and requested severance of their trials to avoid the prejudice
that would result to Furline should he be forced to defend against Jenkins and the plaintiff.
Furline made the same claims in his affidavit supporting the motion. Plaintiff’s May 5, 2016
response argued Furline failed to demonstrate that severance was necessary, and replied that it
did not intend to introduce statements made by either codefendant. At the hearing on the motion,
Jenkins’s counsel had no objection to separate trials. Plaintiff reiterated it had no intention to
introduce the statements at trial and stated the statements would not be admissible through any
other witness, unless either defendant testified. The court took the matter under advisement and
later denied the motion. Noting that the plaintiff averred that it would not offer the statements of
either defendant at trial, the court found that a joint trial would not “prejudicially pit one
defendant against the other.” The court viewed Furline and Jenkins’s positions as, at best,
“antagonistic claims as to who was responsible for setting the fire.” It resolved that codefendant
statements would only be introduced in the event either defendant chose to take the witness stand
and then, subject to cross-examination.

        In Hana, the Supreme Court considered whether the defendants in three consolidated
cases were prejudiced by the trial courts’ decisions to deny their motions for separate trials. In
defendant Hana’s case, involving two brothers Durid and Kafan Hana, it concluded no because
Durid’s affidavit in support of his severance motion was conclusory and thus insufficient to
establish the requisite prejudice to mandate severance. In the defendants Rode’s and Gallina’s
cases, the Court held the dual jury procedure was a sufficient form of severance to cure the risk
of prejudice to the defendants’ substantial rights where each defendant also testified that the
other was responsible for firing a gun that resulted in their convictions for second-degree murder
and felony-firearm.

       The Hana Court found it dispositive that at the time the trial court decided defendant
Durid’s severance motion, Durid’s accompanying affidavit “lacked sufficient specificity to
enable the trial court to accurately determine what the defenses would be, how the defenses
would affect each other, and whether the defendants’ respective positions were indeed mutually
exclusive or merely inconsistent.” 447 Mich at 355. In Hana’s case, the Supreme Court
concluded

1
  A Bruton situation is in reference to Bruton v. United States, 391 US 123; 88 S Ct 1620; 20 L
Ed 2d 476 (1968). “In Bruton v. United States, supra, the Court held that a defendant is deprived
of his Sixth Amendment right of confrontation when the facially incriminating unredacted
confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is
instructed to consider the confession only against the codefendant.” People v Banks, 438 Mich
408, 415; 475 NW2d 769 (1991).



                                                -6-
       Potentially prejudicial evidence, either physical or testimonial, was not
       substantiated by the affidavit or at the hearing. A trial court ruling on a pretrial
       motion must have concrete facts on which to base a ruling; mere finger pointing
       does not suffice. In the absence of proof that clearly, affirmatively, and fully
       demonstrated that defendant’s substantial rights were prejudiced and that
       severance was necessary, we will not interfere with the trial court’s discretion.
       [Id.]

After determining that Durid’s affidavit lacked such specificity, Hana’s analysis continued to
examine, with the benefit of hindsight, whether defendant Durid was actually prejudiced at trial.
Beyond the opening and closing arguments of defense counsels, the Court noted there was
“nothing inherently antagonistic in the evidence adduced at trial.” Id. The Court made this
statement in consideration of Durid’s and Kafan’s statements to law enforcement being admitted
at trial:

       [Durid], after being advised of his rights, when asked about the safe that was
       found in his bedroom, stated that the safe belonged to him and that he knew the
       combination of it. He stated he kept his mother's jewelry, some personal papers
       and blank checks in the safe. He denied knowing there were three kilos of
       suspected cocaine in the safe. He said he shares the bedroom with his brother but
       he had no idea what his brother was doing. Id. at 355-356.

“Kafan never made a statement or even inferred that the drugs did not belong to him or were the
sole property of his brother.” Id. at 356. Based on that evidence, the Court determined the
Hanas’ defenses were not mutually or irreconcilably antagonistic. It further held that because the
prosecution’s evidence was admissible against both defendants and the jury was provided with
cautionary instructions to treat each defendant individually, no prejudice resulted. Id.

        Under a Hana analysis, we find that the trial court abused its discretion in denying
Furline’s motion for separate trials. Unlike the court in Hana, at the time the motion was
presented in this case, the trial court had sufficient evidence to determine the codefendants’
defenses were mutually exclusive. Both Furline’s motion, and mirroring affidavit, attested to the
undisputed evidence of recorded statements made by Jenkins not only denying his own
involvement, but also blaming Furline for the incidents at the Saginaw Home Depot. The court
was also specifically informed that Furline’s defense would also be that he was not complicit in
either the arson or the retail fraud, and that he blamed Jenkins for committing both offenses on
his own. Thus, the court was fully apprised of the specifics of the codefendants’ mutually
exclusive defenses and the potential prejudice from one defendant being pitted against another in
order to prove each’s innocence. Still, the court found any antagonism based upon the
codefendants’ statements was obviated since the prosecution agreed it would not offer any
recorded, oral or written statements made by either defendant incriminating the other and
honored that agreement at trial. Based on this information, the court’s decision not to grant
separate trials was outside the range of principled outcomes.

       With the benefit of hindsight, we find that the court’s decision to deny severance as
having resulted in the codefendants being prejudiced at trial. The mutual exclusivity of the
codefendants’ positions was admitted at trial beyond counsels’ opening and closing arguments


                                               -7-
with each codefendant having to prove the other’s culpability through each witness’s testimony.
Walker in particular testified that Furline was not involved in the Flint Home Depot incident, that
Jenkins told her he set the fire there, that Furline had only known Jenkins for about a week, and
that Jenkins wanted to repeat the Flint arson and retail fraud the next day at the Saginaw store.
Without Furline having to testify himself, his mother’s testimony was evidence that promoted his
defense that it was Jenkins idea to commit arsons and thefts at home improvement stores and he
had nothing to do with Jenkins’ plan. Jenkins did not have a similar witness in his corner, but
did cross-examine Walker and point out Furline’s participation in the crimes through Joy Royal’s
testimony that Furline signed for a no receipt return at the Burton Lowe’s. This situation created
what United States v Tootick, 952 F2d 1078 (CA 9, 1991), referred to as a subtle effect of joining
defendants who have asserted mutually exclusive defenses. “All evidence having the effect of
exonerating one defendant implicitly indicts the other. The defendant must not only contend
with the effects of the government’s case against him, but he must also confront the negative
effects of the codefendant’s case.” Id. at 1083.

         Plaintiff maintains that the act of finger pointing is to be expected by codefendants
charged under an aiding and abetting theory, and does not establish mutually exclusive defenses.
By definition however, mutually exclusivity of defenses does not concern codefendants’ finger
pointing, but whether the evidence at trial is such that “in order to believe the core of the
evidence offered on behalf of one defendant, [the jury] must disbelieve the core of the evidence
offered on behalf of the co-defendant.” Hana, 447 Mich at 349-350. Significantly, in Hana the
Court found it dispositive that neither brother/codefendant blamed the other, and in Rodes and
Gallina, where the codefendants did testify, the Court found the use of separate juries sufficient
to guard against prejudice. In the instant case, each defendant denied involvement in all
incidents that occurred at the Saginaw store and completely blamed the other for what transpired.
Further, they were not afforded any type of severance. Given that plaintiff’s theory was one of
aiding and abetting blaming both codefendants, and each codefendant attempted to introduce
evidence blaming the other, the jury question turned from not whether the individual
codefendants acted in concert to commit the crimes alleged, but which of the two was guilty.
“That dilemma is not presented to dual juries.” Id. at 360. When a dual jury procedure is
employed, “[e]ach jury is concerned only with the culpability of one defendant.” Id. In other
words, each separate jury is able to find its’ own defendant innocent or guilty “without the
uneasiness of inconsistency that would be presented to a single jury in a joint trial. The chance
for prejudice is therefore significantly lessened.” Id. At the least, these codefendants should
have been granted separate juries to evaluate the evidence against each defendant. The court’s
decision to predicate the possibility of prejudice on the defendants’ right to testify did not protect
either defendant from the latent prejudice that would arise as each defendant pursued his
mutually exclusive defense at trial. Accordingly, Furline and Jenkins should be afforded new
trials, this time with some device of severance.2


2
  We recognize that only Furline raised the issue of joinder, however, we have previously held
that in a joint trial where only one defendant raised an issue requiring reversal, each defendant
was entitled to reversal on the same basis. See People v Davis, 135 Mich App 602, 606; 354
NW2d 274 (1984):



                                                 -8-
                                     C. RESENTENCING

       An issue is preserved for appeal when it was raised in and decided by the trial court.
People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007). Furline did
not argue below that his sentence was unreasonable or not proportionate therefore, the issue is
unpreserved.

       We review de novo “the proper interpretation and application of the statutory sentencing
guidelines, MCL 777.11 et seq.” People v Francisco, 474 Mich 82, 85; 711 NW2d 44 (2006).

       “We review for an abuse of discretion whether a sentence is proportionate to the
seriousness of the offense.” People v Armisted, 295 Mich App 32, 51; 811 NW2d 47 (2011).

        In People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), the Michigan Supreme
Court found Michigan’s sentencing guidelines constitutionally deficient to “the extent to which
the guidelines require judicial fact-finding beyond facts admitted by the defendant or found by
the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines
minimum sentence range, i.e., the ‘mandatory minimum’ sentence under Alleyne [v United
States, 570 US 99; 133 S Ct 2151; 186 L Ed 2d 314 (2013)].” After Lockridge, a sentencing
court was no longer required to articulate substantial and compelling reasons for departing from
the applicable guidelines range. Lockridge, 498 Mich at 364-365. Instead, “a guidelines
minimum sentence range calculated in violation of Apprendi [v New Jersey, 530 US 466; 120 S
Ct 2348; 147 L Ed 2d 435 (2000),] and Alleyne is advisory only and that sentences that depart
from that threshold are to be reviewed by appellate courts for reasonableness.” Lockridge, 498
Mich at 365. “The appropriate procedure for considering the reasonableness of a departure
sentence is not set forth in Lockridge.” People v Steanhouse, 313 Mich App 1, 42; 880 NW2d
297 (2015), aff'd in part, rev’d in part 500 Mich 453; 902 NW2d 327 (2017). In Steanhouse¸ this
Court agreed that the principle of proportionality from People v Milbourn, 435 Mich 630; 461
NW2d 1 (1990), should apply to determine whether a departure sentence is reasonable. Under
Milbourn, the principle of proportionality “requires sentences imposed by the trial court to be
proportionate to the seriousness of the circumstances surrounding the offense and the offender.”
Milbourn, 435 Mich at 636. “In making this assessment, the judge, of course, must take into
account the nature of the offense and the background of the offender.” Id. at 651.

       The reasonableness review under Lockridge and application of Milbourn’s principle of
proportionality are only triggered when a sentence departs from the sentencing guidelines range.
Lockridge, 498 Mich at 392. In People v Schrauben, 314 Mich App 181, 193; 886 NW2d 173,
app den 500 Mich 860; 884 NW2d 580 (2016), where the defendant’s recommended minimum
sentence was zero to 17 months’ imprisonment, the defendant appealed his sentence of a


       Only defendant Davis has raised this issue on appeal. However, both defendants
       were tried in a joint trial. The trial court’s instructions applied to both of them.
       Moreover, this Court consolidated these appeals for purposes of decision. Under
       these circumstances, we believe that Calloway’s conviction must be reversed on
       the same basis as Davis’s conviction. [Id.].




                                               -9-
minimum 16 months’ imprisonment on the ground that he was entitled to an intermediate
sanction.3 The Court held,

         [w]hen a trial court does not depart from the recommended minimum sentencing
         range, the minimum sentence must be affirmed unless there was an error in
         scoring or the trial court relied on inaccurate information. MCL 769.34(10).
         Defendant does not dispute that his sentence was within the recommended
         minimum guidelines range, and he does not argue that the trial court relied on
         inaccurate information or that there was an error in scoring the guidelines.
         Therefore, this Court must affirm the sentence. [Schrauben, 314 Mich App at
         196].

The same result is required here. Furline acknowledges that his sentence is within the sentencing
guidelines range of 99 to 320 months therefore, we start from the presumption that his sentence
is proportionate. People v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008). His reasons
for arguing that his sentence is unreasonable and not proportionate are that 1) it was at the top of
the guidelines; 2) his prior offenses were not severe; 3) his prior record did not justify the instant
sentence; 4) he should have been sentenced differently than his ringleader co-defendant; 5) the
arson offense was mis-scored; and 6) the retail fraud offense was not scored. None of these
factors overcomes the presumption of proportionality. The fact that his sentence is at the top of
the guidelines is of no consequence because still, there was no departure. See Schrauben, 314
Mich App at 196. His prior record and level of culpability also do not overcome the presumption
of proportionality. See People v Daniel, 207 Mich App 47, 54; 523 NW2d 830 (1994).
Furline’s other contentions with the scoring of his arson and retail fraud offenses were waived by
counsel at sentencing who agreed the guidelines were proper at 99 to 320 months, stating, “I
personally scored them. That is what I came up with, Judge.” Even addressing Furline’s scoring
issues, the court was not required to independently score the guidelines for lower-crime-classes
when sentencing on multiple concurrent convictions because “the guidelines range for the
highest-crime-class offense would subsume the guidelines range for lower-crime-class offenses,
and there would be no tangible reason or benefit in establishing guidelines ranges for the lower-
crime-class offenses.” People v Lopez, 305 Mich App 686, 691-692; 854 NW2d 205 (2014).


3
    Under MCL 769.34(4)(a),
         If the upper limit of the recommended minimum sentence range for a defendant
         determined under the sentencing guidelines set forth in chapter XVII is 18 months
         or less, the court shall impose an intermediate sanction unless the court states on
         the record a substantial and compelling reason to sentence the individual to the
         jurisdiction of the department of corrections. An intermediate sanction may
         include a jail term that does not exceed the upper limit of the recommended
         minimum sentence range or 12 months, whichever is less.

Schrauben applied People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015), to the statute
and determined that it was no longer mandatory to impose an intermediate sanction by replacing
“shall” with “may.” Schrauben, 314 Mich App at 194.




                                                -10-
       Finding no error in the scoring or the information relied upon by the court in sentencing,
Furline’s sentence must be affirmed.

                                    III. DOCKET NO. 336203

        In docket number 336203, defendant Jenkins seeks a new trial on grounds that he was
denied the effective assistance of counsel, his right to equal protection in the racial composition
of the jury, and a fair trial by the admission of other acts evidence. Defendant Jenkins
additionally argues he is entitled to a new trial based on jury instruction error and police
identification testimony.

                               A. SUBSTITUTION OF COUNSEL

       “A trial court’s decision regarding substitution of counsel will not be disturbed absent an
abuse of discretion.” People v Traylor, 245 Mich App 460, 462; 628 NW2d 120 (2001). “A trial
court abuses its discretion when its decision falls outside the range of reasonable and principled
outcomes.” People v Yost, 278 Mich App 341, 379; 749 NW2d 753 (2008).

       As the Court explained in Mack:

               An indigent defendant is guaranteed the right to counsel; however, he is
       not entitled to have the attorney of his choice appointed simply by requesting that
       the attorney originally appointed be replaced. Appointment of a substitute counsel
       is warranted only upon a showing of good cause and where substitution will not
       unreasonably disrupt the judicial process. [People v Mack, 190 Mich App 7, 14;
       475 NW2d 830 (1991) (citations omitted)].

“ ‘When a defendant asserts that the defendant’s assigned attorney is not adequate or diligent, or
is disinterested, the trial court should hear the defendant’s claim and, if there is a factual dispute,
take testimony and state its findings and conclusion on the record.’ ” People v Strickland, 293
Mich App 393, 397; 810 NW2d 660 (2011) quoting People v Bauder, 269 Mich App 174, 193;
712 NW2d 506 (2005). We will not find good cause to substitute counsel based on “[a] mere
allegation that a defendant lacks confidence in his or her attorney” or “defendant’s general
unhappiness with counsel’s representation.” Strickland, 293 Mich App at 398. Neither will
“disagreements with regard to trial strategy or professional judgment . . . warrant appointment of
substitute counsel[.]” Id. Instead, good cause will be found when “a legitimate difference of
opinion develops between a defendant and his appointed counsel as to a fundamental trial tactic,
when there is a destruction of communication and a breakdown in the attorney-client
relationship, or when counsel shows a lack of diligence or interest.” People v McFall, 309 Mich
App 377, 383; 873 NW2d 112 (2015) (citations and quotation marks omitted).

        Jenkins was appointed Attorney Philip Sturtz on November 9, 2015, who represented
Jenkins through his preliminary examination until May 26, 2016, when he was granted
permission to withdraw as counsel by the court on the account of illness. On May 27, 2016, the
court appointed Attorney William Cowdry to represent Jenkins. On August 2, 2016, while
acting in pro per, Jenkins filed a Motion to Fire/Dismiss Counsel that argued Cowdry was
ineffective and should be substituted by other appointed trial counsel, because he was dishonest
and would not give Jenkins discovery.


                                                 -11-
        The court heard Jenkins’s motion on August 18, 2016. The court indicated that it would
allow a new attorney if both defendants would waive their rights to a speedy trial, because the
court would not try the cases separately and did not want a lack of speedy trial claim. Jenkins
stated he would not waive his right to a speedy trial and the court responded that he would have
to go to trial with Cowdry. The court asked for a date when both defendants could appear to
discuss a speedy trial waiver. This colloquy followed:

              Jenkins. There is no need to even go through all that. Just let him do it.

              Court. Well, you said he is ineffective. Do you want him or don’t you?

               Jenkins. I don’t even want to be – I don’t even want to be in jail. I am not
       even supposed to be in jail. So I feel I am not supposed to be in jail. So I am just
       going to let him go on and do whatever he got to do. If he going to do it the
       correct way I will just let him do it.

              Court. Okay. Proceed to trial.

              Cowdry. Very well.

              Court. Make a time when you can see him, Mr. Cowdry.

              Cowdry. I will.

The above excerpt indicates first, that Jenkins waived his right to argue the issue of his trial
counsel’s substitution because he canceled his request on the record before the court. Waiver
extinguishes any error. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). Second,
because Jenkins’s allowed Cowdry to continue to represent him and cut the court short of
scheduling another hearing on the issue, the court did not make a final decision to deny him
substitute counsel. There can be no abuse of discretion when no decision was made. In other
light, the court’s decision to further entertain the issue when Jenkins’s co-defendant would be
present, did not illustrate that the court forced Jenkins to make a decision one way or another.
The court appropriately informed Jenkins that if he chose to dismiss Cowdry the trial could not
go forward until new counsel was appointed and had the opportunity to prepare for trial, thus
extending the trial date beyond the speedy trial timeline. In the end, Jenkins chose his counsel
and proceeded to trial sooner rather than later, effectively withdrew his motion, and waived any
subsequent objection.

                                  B. EQUAL PROTECTION

       When reviewing a Batson challenge under Batson v Kentucky, 476 US 79; 106 S Ct 1712;
90 L Ed 2d 69 (1986),

       the proper standard of review depends on which Batson step is before us. If the
       first step is at issue (whether the opponent of the challenge has satisfied his
       burden of demonstrating a prima facie case of discrimination), we review the trial
       court's underlying factual findings for clear error, and we review questions of law
       de novo. If Batson’s second step is implicated (whether the proponent of the


                                               -12-
       peremptory challenge articulates a race-neutral explanation as a matter of law),
       we review the proffered explanation de novo. Finally, if the third step is at issue
       (the trial court's determinations whether the race-neutral explanation is a pretext
       and whether the opponent of the challenge has proved purposeful discrimination),
       we review the trial court’s ruling for clear error. [People v Knight, 473 Mich 324,
       345; 701 NW2d 715 (2005)].

Here, the second step is involved.

       In Batson v Kentucky, supra, the United States Supreme Court held it was a violation of
the Equal Protection Clause for counsel to use peremptory challenges to exclude members of a
jury venire based on their race. Batson also provided the three-step process the trial court is to
follow to determine whether a defendant has shown exclusion based on race. The first step
requires the defendant to show a prima face case of discrimination. People v Armstrong, 305
Mich App 230, 238; 851 NW2d 856 (2014).

       To establish a prima facie case of discrimination based on race, the opponent must
       show that: (1) he is a member of a cognizable racial group; (2) the proponent has
       exercised a peremptory challenge to exclude a member of a certain racial group
       from the jury pool; and (3) all the relevant circumstances raise an inference that
       the proponent of the challenge excluded the prospective juror on the basis of race.
       [Knight, 473 Mich at 336].

If the defendant shows a prima facie case of discrimination, then the burden shifts to plaintiff to
“rebut the defendant’s prima facie case with a race-neutral reason for dismissing the juror.”
Armstrong, 305 Mich App at 238. This second step “does not demand an explanation that is
persuasive, or even plausible.” Purkett v Elem, 514 US 765, 768; 115 S Ct 1769; 131 L Ed 2d
834 (1995). “A neutral explanation in the context of our analysis here means an explanation
based on something other than the race of the juror.... Unless a discriminatory intent is inherent
in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Hernandez v
New York, 500 US 352, 360; 111 S Ct 1859; 114 L Ed 2d 395 (1991). “[A]t Batson’s second
step, a court is only concerned with whether the proffered reason violates the Equal Protection
Clause as a matter of law.” Knight, 473 Mich at 344. The prosecutor must “give a clear and
reasonably specific explanation of his legitimate reasons for exercising the challenges.” Batson,
476 US at 98 n 20. “Thus, if the government’s explanation does not, on its face, discriminate on
the basis of race, then we must find that the explanation passes Batson muster as a matter of law,
and we pass to the third step of Batson analysis to determine whether the race-neutral and
facially valid reason was, as a matter of fact, a mere pretext for actual discriminatory intent.”
Knight, 473 Mich at 344. For step three, “the issue comes down to whether the trial court finds
the prosecutor’s race-neutral explanations to be credible.” Miller-El v Cockrell, 537 US 322,
339; 123 S Ct 1029; 154 L Ed 2d 931 (2003). “Once a prosecutor has offered a race-neutral
explanation for the peremptory challenges and the trial court has ruled on the ultimate question
of intentional discrimination, the preliminary issue of whether the defendant had made a prima
facie showing becomes moot.” Hernandez, 500 US at 359.

       Furline argues the court did not make findings in accord with Batson’s three-step process
and in particular, argues under the second step, that plaintiff failed to give a race-neutral


                                               -13-
explanation for dismissing two potential jurors, Venireperson Tateionia Lipsey and Venireperson
Gary Fowlkes, who were both African-Americans. We disagree. In respect to both Lipsey and
Fowlkes, plaintiff’s reasons for their dismissals were tailored to the venirepersons’ responses in
voir dire. For Lipsey, plaintiff stated he excused her because she said her father was prosecuted
by his office and convicted of murder. This was a race-neutral explanation because it was based
on something other than Lipsey’s race. Hernandez, 500 US at 360. This Court has before
upheld the fact that a veniremember had a relative prosecuted and convicted by the same
prosecutor’s office as a legitimate reason to exercise a peremptory challenge against the
veniremember. See People v Eccles, 260 Mich App 379, 386; 677 NW2d 76 (2004) (“The
prosecutor explained that a son of that proposed juror had previously been prosecuted and
convicted by his office.”); see also People v Howard, 226 Mich App 528, 535; 575 NW2d 16
(1997) (“ . . . the record reveals that the juror was dismissed primarily because he had an uncle
with whom he was close who had been tried for murder, a race-neutral reason.”). We therefore
find that the court’s finding as it related to Lipsey was not erroneous. Plaintiff similarly relied on
Fowlkes’ responses in voir dire. Fowkles first stated that it would be difficult for him to convict
another African-American because he was African-American. After further questioning,
Fowlkes agreed that he could make a determination based on the evidence without consideration
as to race. Then Fowlkes stated that if he found the defendants not guilty, he would be
outnumbered by the other jury members and it would be him against them. Plaintiff’s reason for
excusing Fowlkes was that he was concerned about his ability to be impartial. That was a race-
neutral reason clearly based on the statements Fowlkes made in court. The court disagreed with
plaintiff’s characterization of Fowlkes’s statements and granted the peremptory challenge based
on Fowlkes’s last statement that it would be him against the panel. This is another facially race-
neutral explanation and therefore valid. Knight, 473 Mich at 337. Based on this record, we also
conclude that the court did not err in upholding the exercise of plaintiff’s peremptory challenge
against Fowlkes.

        Jenkins also contends the court did not comply with Batson protocol by articulating
separate findings for each step in the three-step process. We disagree. The court’s conclusion,
that there was good reason to strike both jurors, directly after the plaintiff stated its reasons for
peremptory removal constituted the court’s finding that the reasons were race-neutral. The
court’s additional conclusion that there was sufficient cause to dismiss them constituted its
finding that the reasons were not pretext. The court’s ruling on the ultimate question of
intentional discrimination makes the issue of whether the court made a finding that Jenkins
shown a prima facie case of discrimination moot. Hernandez, 500 US at 365.

                               C. EVIDENTIARY CHALLENGES

        “To preserve an evidentiary issue for review, a party opposing the admission of evidence
must object at trial and specify the same ground for objection that it asserts on appeal.” People v
Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). Jenkins concedes this issue was partly
unpreserved when he argues that while his attorney did object to some testimony, counsel did not
object to the bulk of testimony. In cases of preserved evidentiary challenges, the trial court’s
decision to admit or exclude evidence is reviewed for an abuse of discretion. Aldrich, 246 Mich
App at 113. “An abuse of discretion occurs when the trial court's decision is outside the range of
reasonable and principled outcomes.” Kalaj v Khan, 295 Mich App 420, 425; 820 NW2d 223
(2012). Unpreserved evidentiary error is reviewed for plain error. People v Coy, 258 Mich App


                                                -14-
1, 12; 669 NW2d 831 (2003). “To avoid forfeiture under the plain error rule, three requirements
must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the
plain error affected substantial rights. The third requirement generally requires a showing of
prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Carines, 460
Mich at 763 (citation omitted).

        Based on his counsel’s failure to object, Jenkins also argues counsel was ineffective.
This claim was not preserved with a motion for a new trial or an evidentiary hearing in the trial
court. People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). An unpreserved ineffective
assistance of counsel claim is reviewed for mistakes apparent on the record. Heft, 299 Mich App
at 80.

        Jenkins first challenges plaintiff’s failure to provide pretrial notice of the intent and
motive to introduce MRE 404(b) other acts evidence. Specifically, testimony that Flint Home
Depot’s loss prevention manager Justin Luczak was familiar with Jenkins, that Jenkins and
Furline were involved in the Flint Home Depot fire and theft on October 28, and Royal’s
testimony that Furline made a no receipt return at the Burton Lowe’s. Jenkins’s argument for
this claim is two sentences, therefore, we find it abandoned on appeal for failure to brief the
merits. People v McPherson, 263 Mich App 124, 136; 687 NW2d 370 (2004).

        Jenkins also argues that the testimony regarding the Flint Home Depot and Burton
Lowe’s events should not have been admitted against him because those events were irrelevant,
only showed a propensity for Jenkins to associate with Furline, and was more prejudicial than
probative. We disagree. “ ‘Relevant evidence’ means evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” MRE 401. “All relevant evidence is
admissible,” MRE 402, however it may still be excluded under MRE 403 when “its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.” Testimony regarding the theft and fire at the Flint Home Depot was
relevant and admissible to establish the charge of conducting a criminal enterprise that required
the showing of a pattern of racketeering, including that there be, “not less than 2 incidents of
racketeering.” MCL 750.159i(1); MCL 750.159f(c). It is “well settled that in prosecutions for
racketeering offenses, the government may introduce evidence of uncharged offenses to establish
the existence of the criminal enterprise.” United States v Baez, 349 F3d 90, 93 (CA 2, 2003); see
also United States v Mejia, 545 F3d 179, 206 (CA 2, 2008) (“Where, as here, the existence of a
racketeering enterprise is at issue, evidence of uncharged crimes committed by members of that
enterprise, including evidence of uncharged crimes committed by the defendants themselves, is
admissible to prove an essential element of the RICO crimes charged—the existence of a
criminal enterprise in which the defendants participated.”) (Quotation marks and citation
omitted). Jenkins additionally argues that evidence of the Flint Home Deport incident was
irrelevant because there was no evidence he was involved. To the contrary, Walker testified that
Jenkins was present with her and Furline at the Flint Home Depot, that it was his idea to steal
items from that store, and that he set the fire there. Jenkins debates the credibility of this
evidence, but that was for the jury to decide and did not preclude its admission. He also
contends that the testimony showed his propensity to associate with Furline, which he asserts,
without explanation, prejudiced him. Proof of Jenkins’s relationship with Furline was probative


                                               -15-
to establishing plaintiff’s aiding and abetting theory, and was evidence that they associated with
each other through a pattern of racketeering activity under MCL 750.159i(1).

        The admission of testimony from Royal, the loss prevention manager at the Burton
Lowe’s, regarding the Burton Lowe’s event involved Furline and not Jenkins, but was still not an
abuse of discretion because it was a continuation of the Flint Home Depot events. The item
number for the DeWalt contractor saw stolen from the Flint Home Depot matched the item
number of the DeWalt contractor saw returned to the Burton Lowe’s Store. Walker’s testimony
established that the proceeds from that return were eventually split 50/50 between her and
Jenkins. In order to prove racketeering, plaintiff had to show the defendants conspired, or aided
or abetted to commit an offense for financial gain. MCL 750.159(g). Thus the Burton Lowe’s
return was also relevant to establish the pattern of racketeering portion of the conducting a
criminal enterprise charge.

        Testimony from Luczak, loss prevention manager at the Flint Township Lowe’s, that he
was familiar with Jenkins was relevant and not unfairly prejudicial. When asked whether he was
familiar with either defendant, Luczak testified “I was familiar with Alvin Jenkins . . . from
other incidents unrelated to this.” His familiarity with Jenkins was relevant to the investigation
of the events at the Flint Home Depot, his identity of Jenkins in photos provided to him by
Royal, and identification of Jenkins in court. While testimony that Jenkins was known by loss
prevention personnel may have been prejudicial, because plaintiff did not delve into the
circumstances of the other unrelated incidents mentioned by Luczak, Jenkins was not unfairly
prejudiced by the testimony.

        Jenkins also contends his counsel was ineffective for failing to object to the bulk of the
testimony that was presented regarding his participation in the Flint Home Depot fire and theft
and Burton Lowe’s events. To establish a claim of ineffective assistance of counsel, “a
defendant must show that (1) counsel’s performance fell below an objective standard of
reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability
that the outcome would have been different.” People v Trakhtenberg, 493 Mich 38, 51; 826
NW2d 136 (2012). “Under this test, counsel is presumed effective,” People v Frazier, 478 Mich
231, 243; 733 NW2d 713 (2007), and “the defendant must overcome a strong presumption that
counsel’s performance constituted sound trial strategy,” People v Riley (After Remand), 468
Mich 135, 140; 659 NW2d (2003). “Decisions regarding what evidence to present and whether
to call or question witnesses are presumed to be matters of trial strategy.” People v Rockey, 237
Mich App 74, 76; 601 NW2d 887 (1999). This Court “will not second-guess counsel regarding
matters of trial strategy,” or “assess counsel’s competence with the benefit of hindsight.” People
v Rice (On Remand), 235 Mich App 429, 445; 597 NW2d 843 (1999). Nor will we find counsel
ineffective for failure to make meritless objections. People v Ericksen, 288 Mich App 192, 201;
793 NW2d 120 (2010).

         Plaintiff presented 27 witnesses in its case-in-chief, many of whom provided extremely
brief testimonies. Thus, in this case, a witness who may have said something damaging could
quickly be replaced with another if counsels limited their questions. Such was the case with
Luczak. During his brief testimony, Luczak was asked three times whether he was familiar with
Jenkins. Plaintiff asked twice and codefendant’s counsel asked again just to distinguish his
client from Jenkins. As stated earlier, Luczak did not discuss how he was familiar with Jenkins.


                                              -16-
An objection from Jenkins’s counsel could have very likely prompted that discussion. Jenkins’s
counsel chose not to ask the question during his quick cross-examination of Luczak. In this
circumstance, the decision not to object appeared to be trial strategy.

       Jenkins’s counsel was not required to object to lack of notice under MRE 404(b)(2)
because plaintiff did not offer or argue the evidence of the Flint Home Depot and Burton Lowe’s
events under this rule. Further, an objection by Jenkins’s counsel as to the admission of
testimony about those events would have been overruled, as was the case with the objection
during Royal’s testimony, because of the relevancy of the testimony to establishing the charge of
conducting a criminal enterprise. Counsel’s objection would have been meritless in that
instance.

                               D. JURY INSTRUCTION ERROR

         “To preserve an instructional error for review, a defendant must object to the instruction
before the jury deliberates.” Jimkoski v Shupe, 282 Mich App 1, 9; 763 NW2d 1 (2008).
Jenkins’s claim of instructional error was not preserved because Jenkins’s trial counsel did not
object to the jury instructions. Consequently, Jenkins also argues counsel was ineffective for
failing to object. Jenkins also did not preserve his ineffective assistance claim because he did not
move for a new trial or an evidentiary hearing in the trial court. Heft, 299 Mich App at 80.
Unpreserved claims of instructional error are reviewed for plain error affecting the defendant’s
substantial rights. Carines, 460 Mich at 763. An unpreserved ineffective assistance of counsel
claim is reviewed for mistakes apparent on the record. Heft, 299 Mich App at 80.

        Jenkins argues the jury should have been instructed under Michigan Criminal Jury
Instructions (M Crim JI) 5.5, 5.6 and 5.13 based on the evidence at trial that Walker was an
accomplice in the events that took place at the Flint Home Depot on October 28. Jenkins blames
the failure not to instruct the jury on the court and his trial counsel. We find Jenkins’s claim of
instructional error waived because his trial counsel expressly approved the jury instructions as
given. People v Ortiz, 249 Mich App 297, 311; 642 NW2d 417 (2002). Waiver is “the
intentional relinquishment or abandonment of a known right.” People v Carter, 462 Mich 206,
215; 612 NW2d 144 (2000) (quotation marks and citation omitted). “[E]xpressions of
satisfaction with the trial court’s instructions constitute a waiver of any instructional error.”
People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). Further, “[t]he failure of the
court to instruct on any point of law shall not be ground for setting aside the verdict of the jury
unless such instruction is requested by the accused.” MCL 768.29.

        We disagree with Jenkins’s claim that his trial counsel was ineffective for failing to
request the same instructions above. To establish a claim of ineffective assistance of counsel, “a
defendant must show that (1) counsel’s performance fell below an objective standard of
reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability
that the outcome would have been different.” Trakhtenberg, 493 Mich at 51. “Under this test,
counsel is presumed effective,” Frazier, 478 Mich at 243, and “the defendant must overcome a
strong presumption that counsel’s performance constituted sound trial strategy,” Riley (After
Remand), 468 Mich at 140.




                                               -17-
        There was no evidentiary basis for the jury to be instructed under M Crim JI 5.5, 5.6 or
5.13. M Crim JI 5.5 applies when a witness is a disputed accomplice. If the jury finds that the
witness was actually an accomplice, then M Crim JI 5.5 is followed by M Crim JI 5.6, which
instructs the jury to take into consideration certain cautions when examining accomplice
testimony. M Crim JI 5.5 would have required the jury to decide the initial question of “whether
[the witness] took part in the crime the defendant is charged with committing” in order to
determine whether Walker was an accomplice. M Crim JI 5.5(1) (emphasis added). Jenkins was
charged with third-degree arson, first-degree retail fraud, and conspiracy to commit both crimes,
for events that occurred on October 29. There was no evidence that Walker also took part in
those events. Instead, Walker testified that she declined Jenkins’s invitation to go with him to
the Saginaw Home Depot on October 29. Her testimony was corroborated by the absence of
evidence showing her present at the Saginaw Home Depot and Burton Lowe’s stores on October
29. Indeed, there was no surveillance video or witness testimony placing Walker with Jenkins
on October 29. Walker could similarly not be considered an accomplice to Jenkins’s additional
charge of conducting a criminal enterprise because her involvement in only the October 28
incident did not satisfy the statutory requirement to establish a “pattern of racketeering activity,”
that there be, “not less than 2 incidents of racketeering.” MCL 750.159i(1); MCL 750.159f(c).
From this evidence, it is clear that it would have been futile for Jenkins’s counsel to request M
Crim JI 5.5, and M Crim JI 5.6, because this instruction is rendered null when M Crim JI 5.5
does not apply. Counsel is not ineffective for failing to make meritless objections. Ericksen,
288 Mich App at 201.

                              E. IDENTIFICATION TESTIMONY

        “We review for an abuse of discretion the trial court’s evidentiary rulings that have been
properly preserved.” People v Fomby, 300 Mich App 46, 48; 831 NW2d 887 (2013). “An abuse
of discretion occurs when the court chooses an outcome that falls outside the range of reasonable
and principled outcomes.” Unger, 278 Mich App at 217.

        “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.” MRE 401. However, even relevant evidence “may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice....”
MRE 403. Evidence regarding a defendant’s identity is relevant when the identity of a suspect is
at issue. People v Baker, 114 Mich App 524, 529; 319 NW2d 597 (1982). However, “the issue
of whether the defendant in the courtroom [i]s the person pictured in a surveillance photo [i]s a
determination properly left to the jury.” People v Fomby, 300 Mich App 46, 52; 831 NW2d 887
(2013) (citation and quotation marks omitted). This Court has also recognized that when there is
“reason to believe that the witness is more likely to identify correctly the person than is the jury,”
the testimony is admissible. Id. (Citation omitted).

       Jenkins argues that identification testimony from Detective Larry Biniecki was
prejudicial and invaded the province of the jury. Detective Biniecki testified from the position of
a layperson because he was not offered by the plaintiff, nor qualified by the court, as an expert.
MRE 701 governs the admission of lay opinion testimony and provides:




                                                -18-
       If the witness is not testifying as an expert, the witness’ testimony in the form of
       opinions or inferences is limited to those opinions or inferences which are (a)
       rationally based on the perception of the witness and (b) helpful to a clear
       understanding of the witness’ testimony or the determination of a fact in issue.

        Detective Biniecki identified Jenkins 11 times in still photos taken from the surveillance
video at the Saginaw and Flint Home Depots, and the Burton Lowe’s. His testimony was
rationally based on his own perception, but inadmissible under MRE 701 because it was not
“helpful to a clear understanding” of the evidence or the determination of the identification of the
individuals in the photos. MRE 701. There was no indication from the record that the still
photos were distorted or that it was difficult to identify Jenkins in them. Further evidence of this
came from Detective Biniecki’s own testimony during cross-examination that, “the video speaks
for itself,” “I believe everybody can view [the video footage] and make their own
determination,” and “I believe everybody can view it and make their own interpretations.”
“[W]here a jury is as capable as anyone else of reaching a conclusion on certain facts, it is error
to permit a witness to give his own opinion or interpretation of the facts because it invades the
province of the jury.” People v Drossart, 99 Mich App 66, 80; 297 NW2d 863 (1980). In
accord with Drossart, the province of the jury was invaded here and it was an abuse of discretion
for the trial court to admit Detective Biniecki’s identification testimony. Any abuse of discretion
notwithstanding, “a preserved, nonconstitutional error is not a ground for reversal unless after an
examination of the entire cause, it shall affirmatively appear that it is more probable than not that
the error was outcome determinative.” People v Lukity, 460 Mich 484, 496; 596 NW2d 607
(1999) (quotation omitted). Detective Biniecki’s identification testimony, while improper, did
not affect the outcome of the trial when Walker, Royal, Marciak, and Tyson also identified
Jenkins at either the Flint and Saginaw Home Depots, or Burton Lowe’s during the charged
incidents.

                                       IV. CONCLUSION

       Defendant Furline’s and defendant Jenkins’s convictions and sentences are vacated and
the matters are remanded for a new trial. We do not retain jurisdiction.

                                                              /s/ Colleen A. O'Brien
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Cynthia Diane Stephens




                                                -19-
