                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 17, 2015
               Plaintiff-Appellee,

v                                                                    Nos. 318251, 318252,
                                                                          318378, and 320342
                                                                     Emmet Circuit Court
DAKOTA LYNN SHANANAQUET,                                             LC Nos. 10-003343-FH;
                                                                             12-003755-FH;
                                                                             12-003749-FH;
                                                                             13-003852-FH
               Defendant-Appellant.


Before: SAAD, P.J., and OWENS and K. F. KELLY, JJ.

PER CURIAM.

        Defendant appeals her jury-trial convictions for multiple offenses. For the reasons stated
below, we affirm her convictions, and remand to the trial court for the sole purpose of correcting
a clerical error in defendant’s sentencing documents.

                          I. FACTS AND PROCEDURAL HISTORY

        In 2011, a jury convicted defendant of falsely reporting a felony under MCL
750.411a(1)(b), and the trial court sentenced her to one year in prison and two years probation.1
The events at issue in this case took place in October 2012, after defendant’s release from prison.
In that month, defendant accompanied her friend to a doctor’s office in Bay City, at which her
friend’s children had an appointment. Defendant waited in her friend’s car while her friend went
inside with the children, and defendant’s friend left her car keys in the car with defendant. After
her friend went inside the doctor’s office, defendant stole numerous objects (including debit
cards) from other vehicles in the office parking lot, and then drove off in her friend’s car. During
her trip, defendant smashed into a number of mailboxes and severely damaged her friend’s
vehicle.



1
  Another panel of our Court affirmed her conviction. People v Shananaquet, unpublished
opinion per curiam of the Court of Appeals, issued June 12, 2012 (Docket No. 304537).


                                                -1-
        The prosecution charged defendant in the Emmet Circuit Court with multiple offenses,
including: (1) driving while license suspended (DWLS), MCL 257.904; (2) failure to report an
accident resulting in damage to fixtures, MCL 257.621; (3) possession of another’s financial
transaction device with intent to use, MCL 750.157p; and (4) larceny from a motor vehicle, MCL
750.356a. The court held separate trials for each pair of offenses: defendant’s violations of MCL
257.904 and MCL 257.621 were adjudicated together in March 2013; while her violations of
MCL 750.157p and MCL 750.356a were adjudicated together in June 2013.

         In each proceeding, the court heard testimony from many witnesses, including
defendant’s friend, workers at the doctor’s office, the theft victims, two individuals who saw or
heard the vehicular rampage as it happened, and police officers who investigated the incident.
Defendant testified on her own behalf in the March 2013 trial. She claimed that her friend
actually drove the car away from the doctor’s office—after dropping off the children and
“snort[ing] something” in another car nearby with unidentified individuals—and implied that her
friend was responsible for the resulting damages. Defendant also asserted that she accompanied
her friend to the doctor’s office to meet another acquaintance who worked at a salon across the
street, and that the salon worker drove her to her aunt’s house and returned her to the doctor’s
office 30 minutes later.

       The juries in each trial convicted defendant of the above charges. After trial, defendant
pled guilty to violating the terms of her probation under her 2011 conviction for falsely reporting
a felony, because she committed new criminal offenses during the time of her probation.

        In fall 2013, the prosecution charged defendant with perjury in the Emmet Circuit Court
for her testimony in the March 2013 trial. At the perjury proceeding, the salon worker—who
defendant supposedly went to meet—testified that defendant’s testimony was inaccurate,
because she had not seen or heard from defendant on the day in question. The jury again heard
testimony from defendant’s friend and a police officer, and it subsequently convicted defendant
of committing perjury under MCL 750.422.

        On appeal, defendant argues that: (1) the trial court improperly scored her sentence for
violating her probation under the 2011 conviction for falsely reporting a felony; (2) she received
ineffective assistance of counsel, because her trial attorney did not object to the trial court’s
supposedly erroneous scoring of her sentence for the probation violation; (3) the prosecution
presented insufficient evidence to sustain her convictions for possessing another’s financial
transaction device with intent to use and larceny2 from a motor vehicle; (4) the prosecutor


2
   Defendant also asserts that the trial court erred when it instructed the jury on her alleged
commission of larceny from a motor vehicle under MCL 750.356a. However, she may not raise
this issue on appeal, because defense counsel specifically stated that he was satisfied with the
trial court’s proposed jury instruction on this matter. People v Kowalski, 489 Mich 488, 503;
803 NW2d 200 (2011). Furthermore, defendant provides no support for her contention that the
trial court erred in giving the instructions. “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 with little or no citation of supporting authority.” People v Kelly, 231

                                                -2-
committed misconduct during her trial for DWLS and failure to report an accident; (5) the trial
court erred when it denied her request for substitute counsel in her perjury trial; and (6) the trial
court denied her right to due process when it allowed a jury panel to see her in prison clothes and
handcuffs.3 The prosecution asks us to affirm defendant’s convictions and reject her arguments
on appeal.

                                          II. ANALYSIS

      A. SCORING OF OFFENSE VARIABLE (OV) 19 AND ASSISTANCE OF COUNSEL

                                  1. STANDARD OF REVIEW

        Defendant did not protest the trial court’s scoring of OV 19 at sentencing or in a motion
to remand, and she therefore has waived the issue for appellate review. MCL 769.34(10).
However, because defendant claims that her counsel gave her ineffective assistance by failing to
protest the trial court’s scoring of the variable, we must analyze defendant’s OV 19 claim to
assess whether her counsel actually gave her ineffective assistance. See People v Francisco, 474
Mich 82, 89 n 8; 711 NW2d 44 (2006). Unpreserved challenges to the sentencing guidelines are
reviewed for plain error. People v Odom, 276 Mich App 407, 411; 740 NW2d 557 (2007).

        Defendant also failed to preserve her claim for ineffective assistance of counsel, because
she did not move for a new trial or request an evidentiary hearing pursuant to People v Ginther.4
People v Armisted, 295 Mich App 32, 46; 811 NW2d 47 (2011). Unpreserved claims of
ineffective assistance of counsel are also reviewed for errors apparent on the record. Id.

                                          2. ANALYSIS

      False report of a felony interferes with the “administration of justice or the rendering of
emergency services” because it involves “distracting the police and misusing police resources.”

Mich App 627, 640–641; 588 NW2d 480 (1998). And, were we nonetheless to accept plaintiff’s
unavailing argument that the trial court erred in giving the instructions, she has failed to establish
that the supposed error “affected the outcome of the lower court proceedings,” as the evidence of
her guilt was overwhelming. See People v Chelmicki, 305 Mich App 58, 69; 850 NW2d 612
(2014).
3
  Defendant also complains that the information on her charges for larceny from a motor vehicle
and possession of another’s financial transaction device with intent to use contained a fourth
habitual offender notice, when in fact defendant was a third habitual offender. In response to
defendant’s statement of the above at trial, the prosecution filed an amended information that
contained a third habitual offender notice. At sentencing, when defendant raised the issue again,
the trial court stated “[t]hat’s been fixed.” Nonetheless, the judgment of sentence indicates that
defendant is a fourth habitual offender.
Both defendant and the prosecution agree that the trial court should correct this clerical error in
the judgment of sentence to reflect the prosecution’s amended information, and we concur.
4
    390 Mich 436; 212 NW2d 922 (1973).


                                                 -3-
People v Chavis, 468 Mich 84, 94 n 7; 658 NW2d 469 (2003). It is thus appropriate to score
violations of MCL 750.411a pursuant to OV 19. OV 19 is explained in MCL 777.49, which
provides, in relevant part:

       Offense variable 19 is threat to the security of a penal institution or court or
       interference with the administration of justice or the rendering of emergency
       services. Score offense variable 19 by determining which of the following apply
       and by assigning the number of points attributable to the one that has the highest
       number of points:

                                                           ***

       (c) The offender otherwise interfered with or attempted to interfere with the
       administration of justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 points

       (d) The offender did not threaten the security of a penal institution or court or
       interfere with or attempt to interfere with the administration of justice or the
       rendering of emergency services by force or threat of force . . . . . . . . . . . .0 points

        Conduct inherent in an offense may be scored under the sentencing guidelines “absent an
express prohibition.” People v Hardy, 494 Mich 430, 442; 835 NW2d 340 (2013). See also
People v Underwood, 278 Mich App 334, 339–340; 750 NW2d 612 (2008) (holding that if
Legislature had wanted OV 19 to be scored at zero points for a particular offense, it would have
written the statute in such a way to instruct the court to score zero points for that particular
offense). By its plain language, OV 19 does not prohibit a court from considering conduct
inherent in the offense of falsely reporting a felony when it scores points for that offense under
the offense variable.5

        Here, defendant wrongly contends that MCL 777.49 does not allow a trial court to score
points under OV 19 for the underlying offense of falsely reporting a felony. As noted, there is no
prohibition in the statute that bars a court from doing so. The trial court therefore properly took
into account the nature of defendant’s underlying offense (interfering with the administration of
justice or the rendering of emergency services) when it scored 10 points for her violation of
probation with regard to her conviction for falsely reporting a felony under MCL 750.411a.
Because the trial court properly assessed OV 19, any objection to the scoring by defendant’s
attorney would have been meritless, and his decision not to raise an objection did not constitute
ineffective assistance of counsel. Hardy, 494 Mich at 445.




5
  See Hardy, 494 Mich at 442 (internal quotation marks and footnotes omitted) (“[t]he
sentencing guidelines explicitly direct courts to disregard certain conduct inherent in a crime
when scoring OVs 1, 3, 8, 11, and 13. In all other cases, the sentencing guidelines allow a factor
that is an element of the crime charged to also be considered when computing an offense variable
score”).


                                                             -4-
                            B. SUFFICIENCY OF THE EVIDENCE6

        In a criminal case, “[t]he question is whether the evidence presented at trial, together with
all reasonable inferences arising therefrom, was sufficient to allow a rational trier of fact to find
each element of the crime proven beyond a reasonable doubt.” People v DeLisle, 202 Mich App
658, 660; 509 NW2d 885 (1993). “It is for the trier of fact, not the appellate court, to determine
what inferences may be fairly drawn from the evidence and to determine the weight to be
accorded those inferences.” People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002).
“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).

        Here, defendant unconvincingly argues the prosecution presented insufficient evidence to
sustain her convictions for: (1) larceny from a motor vehicle, MCL 750.356a(1); and (2)
possession of another’s financial transaction device with intent to use, MCL 750.157p.
Defendant’s claim that no witness saw her take property from cars in the doctor’s parking lot is
inconsequential, because the prosecution was not required to provide direct evidence of
defendant’s guilt. Carines, 460 Mich at 757. Instead, it merely had to provide circumstantial
evidence that she violated MCL 750.356a(1), and it provided overwhelming circumstantial
evidence of such, in the form of testimony from multiple witnesses who saw and interacted with
defendant on the day in question. Likewise, the prosecution presented substantial circumstantial
evidence that defendant stole debit cards from the vehicles, and asked an acquaintance how to
use the cards to obtain cash—thus demonstrating that she violated MCL 750.157p.

       Accordingly, the prosecution presented substantial evidence that defendant committed
larceny from a motor vehicle and possessed another’s financial transaction device with intent to
use.

                                C. PROSECUTOR’S CONDUCT

        Because defendant failed to object at trial to the prosecutor’s conduct of which she now
complains, her appeal is unpreserved. People v Pipes, 475 Mich 267, 277; 715 NW2d 290
(2006). Unpreserved issues are reviewed for plain error, and a “defendant is not entitled to relief
unless he can establish”: “(1) that the error occurred, (2) that the error was ‘plain,’ (3) that the
error affected substantial rights, and (4) that the error either resulted in the conviction of an
actually innocent defendant or seriously affected the fairness, integrity, or public reputation of
judicial proceedings.” People v Vaughn, 491 Mich 642, 654; 821 NW2d 288 (2012).




6
  When a court reviews whether the prosecution presented sufficient evidence to support a
conviction, the evidence is reviewed de novo in the light most favorable to the prosecution to
determine “whether a rational trier of fact could have found that the essential elements of the
crime were proved beyond reasonable doubt.” People v Ericksen, 288 Mich App 192, 196; 793
NW2d 120 (2010).


                                                -5-
        Here, defendant claims that the prosecutor attacked the integrity of her trial attorney in
his closing arguments. In fact, the prosecutor did nothing of the sort, and merely responded to
defense counsel’s statement of supposed factual inconsistencies in some of the testimony of the
prosecution’s witnesses. Moreover, were we to nonetheless assume that the prosecutor did
commit misconduct, defendant has failed to show how the misconduct either resulted in her
wrongful conviction “or seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” Vaughn, 491 Mich at 654.

                             D. REQUEST FOR SUBSTITUTE COUNSEL7

        “Appointment of a substitute counsel is warranted only upon a showing of good cause
and where substitution will not unreasonably disrupt the judicial process.” Traylor, 245 Mich
App at 462. “Good cause exists where a legitimate difference of opinion develops between a
defendant and his appointed counsel with regard to a fundamental trial tactic.” Id. A request for
substitute counsel must be made in a timely fashion. People v Johnson, 144 Mich App 125, 135;
373 NW2d 263 (1985).

         Here, defendant says the trial court abused its discretion when it denied her request for
substitute counsel. Specifically, she asserts that the court mistakenly believed she did not raise
the issue until the day of trial, when in fact she had mentioned the issue two weeks earlier in a
letter to her attorney, in which she complained about his performance.

         Leaving aside whether the trial court misapprehended when defendant first asked for
substitute counsel, the trial court also examined the merit of defendant’s request, and found that
it did not have any. The court noted that it was familiar with both defendant and her defense
counsel, and that it found defendant’s assertions in her letter to be “tactical, improper, and
unsubstantial.” Defendant fails to address the trial court’s factual findings on the illegitimate
nature of her allegations against her trial attorney, and provides no basis to conclude that the trial
court’s finding in this respect was clearly erroneous. Accordingly, the trial court did not abuse
its discretion when it denied defendant’s motion for substitute counsel.

                                    E. DEFENDANT’S AFFIDAVIT

        In an affidavit8 submitted with her brief on appeal, defendant claims that, prior to her trial
for perjury, corrections officers presented her to the jury panel in prison clothing and handcuffs




7
  A trial court’s decision on a motion for substitution of counsel is reviewed for an abuse of
discretion. People v Traylor, 245 Mich App 460, 462; 628 NW2d 120 (2001). “A trial court
abuses its discretion when it chooses an outcome that is outside the range of reasonable and
principled outcomes.” People v Orr, 275 Mich App 587, 588–589; 739 NW2d 385 (2007). A
trial court’s findings of fact are reviewed for clear error. People v LeBlanc, 465 Mich 575, 579;
640 NW2d 246 (2002).
8
    In full, the affidavit reads:


                                                 -6-
for a brief period of time, and then moved her out of the courtroom and into the hall. She says
this incident denied her due process.9

        Defendant obviously did not raise this issue at the trial court, and it is therefore
unpreserved. Pipes, 475 Mich at 277. Again, unpreserved issues are reviewed for plain error,
and a “defendant is not entitled to relief unless he can establish”: “(1) that the error occurred, (2)
that the error was ‘plain,’ (3) that the error affected substantial rights, and (4) that the error either
resulted in the conviction of an actually innocent defendant or seriously affected the fairness,
integrity, or public reputation of judicial proceedings.” Vaughn, 491 Mich at 654.

        There are a number of problems with defendant’s affidavit and the allegations it contains,
as well as with defendant’s assertion that her due process rights were violated. There is nothing
in the record to confirm that defendant actually appeared in front of the jury panel wearing prison
clothes or handcuffs. In fact, defendant’s conduct at trial would seem to indicate that she did not
appear in front of the jury panel wearing prison clothes or handcuffs, because she never raised
this issue before the trial court.

        In any event, were we nonetheless to assume that defendant’s affidavit is accurate (which
we doubt), she has failed to establish or explain how the jury panel’s brief view of her in prison
clothing and handcuffs in any way “resulted in [her] conviction . . . or seriously affected the
fairness, integrity, or public reputation of judicial proceedings.” Vaughn, 491 Mich at 654. And,
as noted, the prosecution presented substantial and convincing evidence that defendant
committed perjury, in the form of witness testimony that refuted defendant’s earlier testimony at
her trial for larceny from a motor vehicle and possession of another’s financial transaction device
with intent to use.




                                         III. CONCLUSION

      Defendant’s convictions are affirmed. We remand for the sole purpose of correcting the
judgment of sentence for defendant’s convictions pursuant to MCL 750.356a and MCL
        I, Dakota Shananaquet, state under oath that on October 8, 2013, I was
        transported to the Emmet County Circuit Court building for trial for perjury in
        Case No: 13-3852. Corrections Officers Wellman and Reno took me into the
        courtroom and sat me down in front of the prospective jury panel. I was wearing
        prisoner blue clothing and I was handcuffed. After hearing the prospective jurors
        talk about me, Officers Wellman and Reno took me out into the hallway, but the
        court room door remained open and I was still in the view of the jury panel.
9
  When she filed her brief, defendant asked our Court to order the trial court to hold an
evidentiary hearing to establish a record in support of the claims she made in her affidavit.
Another panel of our Court denied her motion. People v Shananaquet, unpublished order of the
Court of Appeals, entered September 5, 2014 (Docket No. 320342).


                                                  -7-
750.157p, so that judgment is consistent with the amended information filed by the prosecution
with regard to those charges. We do not retain jurisdiction.



                                                         /s/ Henry William Saad
                                                         /s/ Donald S. Owens
                                                         /s/ Kirsten Frank Kelly




                                             -8-
