                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    January 9, 2018
               Plaintiff-Appellee,

v                                                                   No. 332514
                                                                    Macomb Circuit Court
JAMES DONALD VANCALLIS,                                             LC No. 2014-004654-FC

               Defendant-Appellant.


Before: STEPHENS, P.J., and CAVANAUGH and K. F. KELLY, JJ.

PER CURIAM.

        Defendant appeals by right his jury trial convictions for first-degree premeditated murder,
MCL 750.316(1)(a), first-degree felony murder, MCL 750.316(1)(b), kidnapping for purpose of
engaging in criminal sexual penetration, MCL 750.349(1)(c), and assault with intent to commit
criminal sexual penetration, MCL 750.520g(1). Defendant was sentenced to life without parole
for the murder convictions, 225 months to 480 months for the kidnapping conviction, and 80
months to 120 months for the assault conviction. Finding no errors warranting reversal, we
affirm.

                                        I. BASIC FACTS

        The 14-year-old victim, April Millsap (April), was murdered along the Macomb Orchard
Trail on July 24, 2014 sometime between 6:30 p.m. and 8:00 p.m. At approximately 5:30 p.m.
that day, she left to take her dog, Penny, on a walk. April’s mother, Jennifer Millsap, became
concerned after April failed to return by 8:00 p.m. because April was usually only gone for about
an hour. Several texts and phone calls to April’s phone went unanswered. Jennifer contacted
April’s boyfriend, Austin Albertson. Austin was very worried because April had texted him “I
almost got kidnapped, OMFG.” Jennifer, Austin, and Austin’s friend, Alex, began to look for
April.

        The trail was eight feet wide with asphalt. There was a gully or ditch on the one side that
was fairly steep – approximately three or four feet down. It goes up again and the surface at that
point is flat but covered in very thick brush and a lot of small trees. That is where April’s body
was found. Her blouse and bra were pulled down about her waist area and her blue shorts and
undergarments were pulled down around her ankles. Her feet were bare and there were two
white shoes to the north of the body. There were injuries to her neck and chin with pattern marks
from footwear. There was some leaf material clutched in April’s hand. There was blood on her
                                                -1-
face and hair. The manner of death was homicide and the cause of death was “blunt head trauma
and asphyxia due to neck compression.” April’s herringbone-pattern injuries were consistent
with a shoe tread, indicating that someone had stood on her neck. The medical examiner
testified that the attack on April may have lasted over ten minutes.

       Police started their investigation by looking at April’s family and loved ones. Security
video eliminated April’s boyfriend Austin and his friend Alex. Given the gravity of the case,
several groups were involved, including: The Violent Crimes Task Force, the Homicide Task
Force, the Southeastern Michigan Crimes Against Children Group, the Michigan State Police
(MSP), the FBI, and the Macomb County Sheriff’s Office. Because there was a lot of publicity
about the case, a tip line was established to receive tips from the general public. A number of
tips came in from people who thought they saw April on the trail with a man who was on a
motorcycle. Several eyewitnesses testified at trial, placing April and defendant on the trail
together near the time of her death.

        The jury was shown an animation created by FBI special agent Matthew Zentz. Zentz
used information from April’s phone and entered it into Google Earth to re-create the path the
phone took just prior to and after April’s death. During that time, April’s phone placed three
calls and sent one text message. The animation included pinpoints for the times of the phone
calls and text messages, as well as the location of the body. At 6:28 p.m., the phone texted - “I
was almost kidnapped. OMFG.” The phone then attempted three calls to 810-882-2469 at 6:31
p.m., 6:32 p.m., and 6:33 p.m. At approximately 6:44 p.m., the phone departed the area where
April was found. Whereas the phone had previously traveled an average of approximately 3.8
miles per hour, the phone suddenly traveled at 22 miles per hour.

        A police officer observed a motorcycle in a driveway that appeared to match the
description of the motorcycle seen on the trail and in a neighbor’s security camera footage. The
officer eventually made contact with defendant at a home that defendant shared with numerous
family members and his girlfriend, Krystal Stadler. Defendant originally told the officer that he
left his house around 5:00 p.m. to visit his brother and left his brother’s house before dark
because he was worried about hitting a deer. He reported that he wore a black helmet, a Carhartt
hoodie, camouflage pants, and K-Swiss tennis shoes. Defendant provided roughly the same
information the following day.

        There was no physical evidence linking defendant to April’s murder. The evidence
against him consisted of eyewitnesses who placed defendant with April on the trail just before
the murder as well as Krystal’s testimony that defendant behaved strangely the night of the
murder. Krystal testified that on the day of the murder defendant left the house on his
motorcycle around “four thirty, five” to go to his brother Donnie’s house to take his brother a
“toothbrush thing” and pick up some money. Defendant was wearing a white t-shirt with
football logos on it, gray camo pants, his favorite Jordans, and a backpack. He also owned a
Carhartt hoodie. Defendant returned around “eight thirty, nine,” just before it started to get dark.
Krystal woke up to find defendant cleaning his shoes in the middle of the night. This seemed
unusual as she had never seen him clean his shoes before. Defendant explained that he was
cleaning off some oil. He used hand sanitizer and a sock. Defendant came back to bed and told
Krystal that “he messed up and he needed me to stand by his side.” His demeanor was “lovey
dovey,” which indicated to Krystal that “he did something wrong.”

                                                -2-
        Police interviewed Krystal on a number of occasions and she admitted to giving
inconsistent statements. Krystal eventually told police about defendant’s statement during a
third interview. Krystal admitted that the nine years she and defendant were together were not
necessarily harmonious. In fact, during that time Krystal had an affair with a 17-year-old and
had a child by him. Krystal and defendant had only recently gotten back together in May 2014,
just weeks before the murder.

        Police officer seized defendant’s helmet and a variety of other items for testing. They
also seized a password-protected computer from defendant’s room that included prior searches
such as, “why would this girl say I’m too old for her and still hit on me?” and “how to get a girl
that does not like you to like you.” Officers also found images of defendant wearing the Jordans
on social media. Because the shoes Krystal described were never found, officers purchased a
similar pair and had them analyzed to see whether they matched the tread found on April’s body.
There was a “limited association” noted.

       Defendant did not testify and did not present any witnesses. Instead, defense counsel
vigorously and effectively cross-examined the prosecution’s witnesses and argued that defendant
was not April’s killer. The jury disagreed and found defendant guilty of first-degree
premeditated murder, first-degree felony murder, kidnapping for purpose of engaging in criminal
sexual penetration, and assault with intent to commit criminal sexual penetration. He was
sentenced as outlined above.

                        II. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant argues that he was denied his right to the effective assistance of counsel where
his attorney failed to challenge the admissibility of a computer-generated animation, failed to
object to the police chief’s vouching for the credibility of eyewitness testimony, failed to offer an
eyewitness identification expert, and failed to object to the prosecutor’s misconduct during
closing argument. “[A] defendant must move in the trial court for a new trial or an evidentiary
hearing to preserve the defendant’s claim that his or her counsel was ineffective.” People v Heft,
299 Mich App 69, 80; 829 NW2d 266 (2012). Defendant has done neither; therefore, the
Court’s review is limited to mistakes apparent on the record. Heft, 299 Mich App at 80.

        “To establish a claim of ineffective assistance of counsel, a defendant must show both
that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the
defense. In order to demonstrate that counsel’s performance was deficient, the defendant must
show that it fell below an objective standard of reasonableness under prevailing professional
norms.” People v Riley, 468 Mich 135, 140; 659 NW2d 611 (2003), citing Strickland v
Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed2d 674 (1984); People v Pickens, 446
Mich 298, 302-303; 521 NW2d 797 (1994). In so doing, the defendant must overcome the
presumption that the challenged action was sound trial strategy. Riley, 468 Mich at 140. “A
sound trial strategy is one that is developed in concert with an investigation that is adequately
supported by reasonable professional judgments.” People v Grant, 470 Mich 477, 486–87; 684
NW2d 686 (2004).

       “A fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s

                                                -3-
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland v Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed2d 674 (1984). For that
reason, “[w]e will not substitute our judgment for that of counsel on matters of trial strategy, nor
will we use the benefit of hindsight when assessing counsel’s competence.” People v Unger, 278
Mich App 210, 242-243; 253; 749 NW2d 272 (2008).

       In order to show prejudice, a defendant must show that but for counsel’s deficient
performance, there is a reasonable probability that the outcome would have been different.
People v Trakhtenberg, 493 Mich 38, 51–52; 826 NW2d 136 (2012).

          A. FAILURE TO OBJECT TO COMPUTER-GENERATED ANIMATION

       At trial, FBI special agent Matthew Zentz testified that he had been a special agent with
the FBI for 16 years. He was a digital forensic examiner who examined computers and
cellphones. Zentz was part of the computer analysis response team (CART) for the past 10
years. It took him two years to become certified. He also had annual proficiency tests. When
the prosecutor asked that the trial court qualify Zentz as a witness, defense counsel responded
“[w]e have no objection. As long as he sticks to the field of digital forensics.”

        Zentz testified that CART became involved in the case in September 2014 to analyze
April’s phone. CART used forensic tools to focus on July 24, 2014, sorting the files by date (Tr
II, p 21). Zentz was particularly interested in a screenshot that was taken by the operating
system of the phone itself. It was unusual for a user to take that type of screenshot, so CART
looked deeper into it. In so doing, Zentz saw another screenshot of what appeared to be an
image of a global position satellite (GPS) that was generated by a fitness application (app) that
appeared to be running during the time April was killed. The fitness app was used for people to
keep track of their workouts, keeping track of location, time, and speed.

        Zentz was unable to directly read the data files because they were in the proprietary
format of the company that created the app. Zentz discovered that the sports tracker app was
developed by a company out of Finland and that CART needed the company’s help in reading
the files. Zentz sent the encrypted data files to the company and the company sent back a text
file containing 3,000 data points for latitude, longitude, date, time and speed. Zentz used that
information to create an animation in Google Earth to re-create the phone’s path in the time
leading up and directly after April’s murder. Zentz denied putting in any of his own information.
The animation included pinpoints for the three phone calls directly before April’s murder, text
messages and the location of the body.

        Zentz and the team then bought an iPhone to test the data files. The team made a copy of
the data files and loaded them on the test iPhone along with the fitness app. They loaded the app
and then copied the data files from April’s phone to put them in the same file location. This
second piece of forensic work indicated that the paths were identical and corroborated what the
company had provided.

       The animation was admitted without objection and played for the jury.

       During cross-examination, defense counsel confirmed that the animation was something
that Zentz created. Zentz did not personally travel to Finland, nor did he speak to anyone in
                                                -4-
person. Instead, Zentz spoke with the company’s CEO over the phone. Zentz had no knowledge
regarding the CEO’s technical experience. Zentz did not inquire into the reliability or the
validity of the information. The conversation was exclusively about gaining access to the
software. Zentz did not ask for any reliability studies or the error rate associated with the data.
He acknowledged that this was something created at law enforcement’s request and that it was
only as good as the data and information provided by the company. If any of that information
was wrong, then the animation would be off. Still, Zentz made no inquiries into the reliability or
validity of the information.

         On appeal, defendant argues that defense counsel was ineffective for failing to object to
the animation on hearsay grounds. However, a decision not to object to evidence can be sound
trial strategy. Unger, 278 Mich App at 242, 253. Without a Ginther1 hearing, we are left to
guess what defense counsel’s strategy was in failing to object to the animation. However, the
record reveals that defense counsel raised concerns regarding the computer-generated animation.
Defense counsel received funds to obtain an expert on cellular phones. This expert sat with
defense counsel during Zentz’s testimony and assisted counsel in cross-examination. In the end,
counsel requested that the jury consider the computer-generated animation to support his theory,
asking the jury to pay special attention to the timing of the events. It is important to note that, on
appeal, defendant has framed the issue as one of ineffective assistance of counsel and not as a
claim of evidentiary error. Defense counsel’s approach in obtaining his own expert to examine
the underlying data and provide assistance during questioning of witnesses was sound trial
strategy. Moreover, because the animation was not inadmissible hearsay, defense counsel was
not ineffective for failing to advance a meritless position. People v Ericksen, 288 Mich App 192,
201; 793 NW2d 120 (2010) (“Failing to advance a meritless argument or raise a futile objection
does not constitute ineffective assistance of counsel.”)

         The animation was used as demonstrative evidence. “Demonstrative evidence is
admissible when it aids the fact-finder in reaching a conclusion on a matter that is material to the
case.” People v Bulmer, 256 Mich App 33, 35; 662 NW2d 117 (2003). Such evidence must be
both relevant and probative. Id. Evidence is relevant if it has “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. Demonstrative evidence “is
used only as a non-verbal mode of expressing a witness’s testimony and as a testimonial aid it
may often help the jury to understand the evidence more clearly than they could from the words
of any witness.” Finch v WR Roach Co, 295 Mich 589, 595; 295 NW 324 (1940) (quotation
marks and citations omitted). The demonstrative aid “must be sponsored by a witness who uses
it to relate his personal knowledge or scientific skill and understanding.” Id. The law requires
that ‘[t]he facts or data . . . upon which an expert bases an opinion or inference shall be in
evidence.’ ”Unger, 278 Mich App at 248, quoting MRE 703. “An expert witness’s opinion is
objectionable if it is based on assumptions that do not accord with the established facts.” Id. at
248.




1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                 -5-
        “[W]hen evidence is offered not in an effort to recreate an event, but as an aid to illustrate
an expert’s testimony regarding issues related to the event, there need not be an exact replication
of the circumstances of the event.” Id. “ ‘Beyond general principles of admissibility, the case
law of this state has established no specific criteria for reviewing the propriety of a trial court’s
decision to admit demonstrative evidence.’ ” Id. at 247, quoting People v Castillo, 230 Mich
App 442, 444; 584 NW2d 606 (1998). The evidence “must satisfy traditional requirements for
relevance and probative value in light of policy considerations for advancing the administration
of justice.” Unger, 278 Mich App at 247.

       Zentz created the animation to support his testimony and was properly admitted as
demonstrative evidence. Even if the animation is considered a hearsay statement under MRE
801(a) and (c), the animation satisfies a record exception under MRE 803(6), which provides:

         (6) Records of Regularly Conducted Activity. A memorandum, report, record, or
         data compilation, in any form, of acts, transactions, occurrences, events,
         conditions, opinions, or diagnoses, made at or near the time by, or from
         information transmitted by, a person with knowledge, if kept in the course of a
         regularly conducted business activity, and if it was the regular practice of that
         business activity to make the memorandum, report, record, or data compilation,
         all as shown by the testimony of the custodian or other qualified witness, or by
         certification that complies with a rule promulgated by the supreme court or a
         statute permitting certification, unless the source of information or the method or
         circumstances of preparation indicate lack of trustworthiness. The term “business”
         as used in this paragraph includes business, institution, association, profession,
         occupation, and calling of every kind, whether or not conducted for profit.

Jussi Kaasinen of Sports Tracking Technologies, Ltd. authenticated the data compilation when
he signed the “Records of Regularly Conducted Business Activity” for purposes of the Uniform
Unsworn Foreign Declarations Act, MCL 600.2181. The data that was provided was made by a
person with knowledge of the matter, made at or near the time of the occurrence. Sports
Tracking Technologies, Inc. made, kept and maintained the data in the ordinary course of
regularly conducted business activity. We reject defendant’s claim that the animation was
testimonial in nature when Zentz, who created the animation from the underlying data, testified
at trial.

         Nor is there any support for defendant’s argument that counsel was ineffective for failing
to insist on a Daubert[2]hearing to determine whether Zentz was qualified to offer the animation
and determine whether it was the product of reliable principles and methods. MRE 702 “requires
trial judges to act as gatekeepers who must exclude unreliable expert testimony.” Lenawee Co v
Wagley, 301 Mich App 134, 162; 836 NW2d 193 (2013). The purpose of a Daubert hearing is to
filter out unreliable expert evidence. Id. “The gatekeeping inquiry is context-specific and must
be tied to the factors of a particular case.” Id. at 163 (internal quotation marks and citation
omitted). Zentz had an extensive history as a digital forensic examiner. Defense counsel was


2
    Daubert v Merrell Dow Pharm, Inc, 509 US 579 (1993).


                                                 -6-
not ineffective for demanding a Daubert hearing for the limited purpose of exploring Zentz’s
qualifications in creating the animation, especially where counsel vigorously cross-examined
Zentz and utilized an expert to critically examine Zentz’s findings.

 B. FAILURE TO OBJECT TO TESTIMONY REGARDING EYEWITNESS CREDIBILITY

        Defendant argues that counsel was ineffective in failing to object to Armada Police Chief
Howard Smith’s testimony that eyewitness accounts are credible and correct the majority of
time. Defendant maintains that such testimony “trampled on the province of the jury” to
determine witness credibility. Again, a decision not to object to evidence can be sound trial
strategy. Unger, 278 Mich at 242, 253.

       Defendant’s appellate brief fails to show the context in which the testimony took place.
The prosecutor had been questioning Smith about how the case was investigated. Specifically,
Smith testified that a tip line was created and every tip was pursued. The testimony that
defendant finds offensive was included in this lengthy exchange:

               Q. [by the prosecutor] Were eyewitnesses developed as a result of the
       investigation?

              A. They were.

              Q. How did their information come into the task force?

               A. Voluntarily. They came in, they identified, you know, in particular
       three of them had been on the, on the trail the day of the event. One was an
       eyewitness. Mr. Reschke has already testified. One was an eyewitness to April.
       Two were eyewitnesses that said that they saw somebody on a blue and white
       motorcycle. And then there were two other people that saw something in the little
       clearing by the Liberty Trail that they thought were suspicious. They came
       forward as well.

               Q. You’re an officer of many years, we’ve spent time questioning the
       jurors during voir dire about eyewitness testimony and their opinion and
       credibility. In your experience as an officer, the eyewitness testimony that you’re
       receiving here, how do you, what do you do to verify or do whatever you can to
       be certain that it has some credibility?

               A. Through my experience, my training, through different detective
       bureau courses that I took when I was in the detective bureau and that one of the
       things that you look at with eyewitness testimony is the credibility, the daylight,
       the time, the frequency. There is some, if there’s a weapon involved there’s some
       focus on the weapon, not necessarily on what they’re seeing. And the other thing
       you want to do is you want to take it for what this eyewitness is telling you, if
       they have a particular focus on a certain thing you accept that and go with that.
       You then look at and go with corroboration. You know, were there other people
       that saw the same thing? Can you, can you corroborate what the eyewitness is


                                               -7-
       telling you? And in the most part, the most part the eyewitness is correct the
       majority of the time.

               Q. But there are times where there are issues (inaudible)?

               A. Absolutely.

               Q. It goes both ways.

               A. It does.

              Q. Do you know, do you sit, I guess as the judge of it, or do you just
       simply gather all of that information and continue to move the investigation
       forward?

             A. My job is to gather the information, put it all together and provide it.
       [Emphasis added.]

        It is clear that the prosecutor asked Smith about the steps he takes to verify a tip. Smith
was not asked to comment on whether eyewitness testimony was correct a majority of the time;
instead, this last comment was non-responsive to the question being asked. Just as “an
unresponsive, volunteered answer to a proper question is not grounds for the granting of a
mistrial,” People v Haywood, 209 Mich App 217, 228; 530 NW2d 497 (1995), counsel was not
ineffective for failing to object to the challenged testimony. Defense counsel also may have
reasonably determined that objecting to the testimony would have drawn unnecessary attention
to it. See People v Bahoda, 448 Mich 261, 287 n 54; 531 NW2d 659 (1995) (“[T]here are times
when it is better not to object and draw attention to an improper comment.”); People v Lawless,
136 Mich App 628, 635; 357 NW2d 724 (1984) (“Defense counsel could properly have refrained
from objecting to the brief questions where an objection could have emphasized the testimony in
the minds of the jurors and where no further reference was made to the testimony.”).

       Defense counsel instead pursued the issue during cross-examination:

               Q. [by defense counsel] Okay. Now you just indicated in response to Mr.
       Cataldo’s testimony [sic] that most of the time you find eyewitness testimony to
       be reliable?

               A. Through my training and experience, the bulk of eyewitness testimony
       is credible, yes.

Defense counsel then questioned Smith at length about the discrepancies in the eyewitness
testimony in this case. Defense counsel’s failure to object to Smith’s testimony did not fall
below an objective standard of reasonableness under prevailing professional norms.

          C. FAILURE TO PRESENT EYEWITNESS IDENTIFICATION EXPERT

        Defendant argues that defense counsel was ineffective for failing to call an expert to
testify that eyewitness testimony was unreliable. He maintains that expert testimony was the

                                                -8-
most effective tool for protecting against eyewitness misidentification and that counsel
inexplicably failed to call an expert even though funding for such an expert was approved.
However, “[d]ecisions regarding what evidence to present and whether to call or question
witnesses are presumed to be matters of trial strategy, and this Court will not substitute its
judgment for that of counsel regarding matters of trial strategy.” People v Davis, 250 Mich App
357, 368; 649 NW2d 94 (2002).

        Although the trial court approved funds for such an expert, defense counsel did not
present any evidence or witnesses. However, defense counsel did make eyewitness testimony
his focus at trial. Counsel also vigorously and effectively cross-examined the eyewitnesses. Our
review of the entire record reveals that defense counsel was zealous and successful in this tactic.
Eyewitness testimony was clearly the focus for everyone concerned. And the trial court stressed
the importance of scrutinizing such testimony when instructing the jury:

               One of the issues of this case is the identification of the Defendant as the
       person who committed the crime. The Prosecutor must prove beyond a reasonable
       doubt that the crime was committed and that the Defendant was the person who
       committed it. In deciding how dependable or not identification is think about such
       things as how good a chance the witness had to see the offender at the time, how
       long the witness was watching, whether the witness had seen or known the
       offender before, how far away the witness was, whether the area was well lighted,
       and the witness’ state of mind at the time. Also think about the circumstances at
       the time of the identification, such as how much time had passed since the crime,
       how sure the witness was about the identification and the witness’ state of mind
       during the identification. You may also consider any times that the witness failed
       to identify the Defendant or made an identification or gave a description that did
       not agree with his or her identification of the Defendant during trial.

              You should examine the witnesses’ identification testimony carefully. You
       may consider whether other evidence supports the identification, however,
       whether it supports the identification because then it may be more reliable.
       However you may use the identification testimony alone to convict the Defendant
       as long as you believe the testimony and you find that it proves beyond a
       reasonable doubt that the Defendant was the person who committed the crime.
       [Tr X, pp 122-123.]

       Again, absent a Ginther hearing, we are left to guess why defense counsel declined to
produce an expert on eyewitness identification. But one may assume that defense counsel
believed that the issue was properly explored during trial. His tactic was to show that the
prosecution had not proven its case and he, therefore, declined to present any evidence or call
any witnesses. Defense counsel’s failure to do so did not fall below an objective standard of
reasonableness under prevailing professional norms. See People v Blevins, 314 Mich App 339,
351; 886 NW2d 456, 463 (2016) (“Although defendant believes that additionally presenting an
expert on eyewitness testimony would have been helpful, and defendant may even be right, that
counsel could conceivably have done more, or that a particular trial strategy failed, does not
mean counsel’s performance was deficient.”)


                                                -9-
             D. FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT

     Defendant claims that counsel was ineffective in failing to object to the prosecutor’s
comments during closing arguments.

                                1. MISSTATEMENT OF LAW

        Defendant argues that counsel was ineffective for failing to object to the prosecutor’s
misstatement of the law regarding premeditation. A prosecutor’s clear misstatement of the law,
if uncorrected, can deprive a defendant of a fair trial. People v Grayer, 252 Mich App 349, 357;
651 NW2d 818 (2002).

        During closing arguments, the prosecutor discussed the premeditated murder instruction
and its elements:

                [Element n]umber four is the one that I really want you to consider. I’ll
       read it with you. The killing was deliberate, which means the Defendant
       considered the pros and the cons of the killing and thought about and chose his
       actions before he did it. There must have been real and substantial reflection for
       long enough to give a reasonable person a chance to think twice about the intent
       to kill. The law does not say how much time is needed. That’s for you to decide.
       We talked about that can be as little as seconds or as long as it took to plan the 9-
       1-1 bombing. That’s up to you to decide. We’re going to talk about that three to
       five-minute gap, which is where the premeditation was formed in just a second.

                                             * * *

               Let’s go back to premeditation. You saw the instruction, you get to be the
       determinant of the time. I would say to you the first assault on her happened at
       6:26 or 6:27, before in fact she makes that text. And we know from Dr.
       Pietrangelo that she has bruises under her arms. We have to wonder if he had
       grabbed her and attempted to move her and she got away that first time and
       moved quickly up the path. But at 6:28 is when she makes that text and at 6:30
       she’s in the bushes being murdered. That three to five minutes, especially after he
       failed the first time to kidnap her, he formulated a new plan that included the
       helmet for the assault. That’s the time for that premeditation.

               Now the second theory is the time theory that we talked about a little bit in
       jury selection. That instruction shows you if you have a chance to take a look at it,
       and I think of it in terms of reflection and second thought. Case law is very clear.
       Because this is not a gunshot or a knife wound there is time for reflection,
       especially in suffocation and strangulation cases where it takes minutes to die.
       The courts have said that you have the chance to use as premeditation the time it
       takes for a person to die because it gives a chance for the defendant to have
       second thoughts or reflections on what’s happened. Dr. Pietrangelo told you that it
       took her approximately ten minutes to die. And can you imagine the amount of
       force necessary to crush a larynx and a skull and a chest? Because he let her
       suffocate to death. We know that that video is 14 minutes where he is in that area.
                                               -10-
       The doctor told you that it takes ten minutes to die. And we know that she was
       alive during part of it because of two photographs from the crime scene. While
       she’s being stomped to death she’s grabbing the leaves around her. . . .She’s
       unable to act. That time period is premeditation because he did nothing to stop it
       when he could have.

        The prosecutor did not misstate the law. “[T]he Legislature’s use of the words ‘willful,’
‘deliberate,’ and ‘premeditated’ in the first-degree murder statute indicates its intent to require as
an element of that offense substantially more reflection on and comprehension of the nature of
the act than the mere amount of thought necessary to form the intent to kill.” People v Plummer,
229 Mich App 293, 301; 581 NW2d 753 (1998).

       Additionally, the trial court instructed the jury: “It is my duty to instruct you on the law.
You must take the law as I give it to you. If a lawyer says something different about the law,
follow what I say.” The trial court then instructed the jury on the elements of premeditated
murder:

       Fourth, that the killing was deliberate, which means that the Defendant considered
       the pros and the cons of the killing and thought about and chose his actions before
       he did it. There must have been real and substantial reflection for long enough to
       give a reasonable person a chance to think twice about the intent to kill. The law
       does not say how much time is needed. It is for you to decide if enough time
       passed under the circumstances of the case. The killing cannot be the result of a
       sudden impulse . . . without thought or reflection.

The prosecutor’s statements during closing arguments mirrored this instruction. Because there
was nothing objectionable about the prosecutor’s statement, defense counsel was not ineffective
for failing to object. Ericksen, 288 Mich App at 201.

                  2. COMMENTS ON DEFENDANT’S VIOLENT NATURE

        Defendant argues that counsel was ineffective for failing to object to the prosecutor’s
comments regarding the danger defendant posed and the need for extra security to guard against
his volatility. Defendant specifically objects to the prosecutor’s statement – “remember we had
to remove you before we brought him out and get more security, because it’s very difficult to
bring somebody accused of murder that close to the jury.” However, defendant takes the
statement out of context. During closing arguments, the prosecutor noted:

                 You have a rare opportunity in this case to see something most juries don’t
       get to see, and that is you got to see Mr. VanCallis’ volatility. Remember when
       Bill Buchanan was standing here and they were doing that God awful, supposed
       test . . .? Bill Buchanan is standing here very quiet. He’s going, no, you’ve got to
       pull that helmet down, you’ve got to pull that helmet down, no, the helmet’s too
       high up, you’ve got to pull that helmet down. And there’s VanCallis I pulled it
       down (inaudible)!

              Put it in these terms, in front of 12 people, 14 of you now, 12 who will
       eventually decide his fate, in front of four armed deputies – remember we had to
                                                -11-
       remove you before we brought him out and get more security, because it’s very
       difficult to bring somebody accused of murder that close to the jury. Four armed
       deputies, two more armed investigatives [sic] behind me, three cameras showing
       this case to the world, what does he do? He turns around and he yelled at the
       Judge. So you tell me what chance did April Millsap have as a small, 14 year old
       girl on an isolated stretch of the Orchard Trail when she rejected his advances and
       told him no?

The prosecutor did not mention the need for additional security to guard against defendant’s
volatility; instead, the prosecutor merely explained what happened during trial. He noted that
defendant lost his temper, which was telling because defendant was in front of the jury and the
room was full of officers. The prosecutor used defendant’s behavior to demonstrate that April
was defenseless against him. Because there was nothing objectionable about the prosecutor’s
statement, defense counsel was not ineffective for failing to object. See Ericksen, 288 Mich App
at 201.

                                         3. VOUCHING

        Defendant argues that defense counsel was ineffective for failing to object to the
prosecutor’s vouching for the police investigation and the prosecution’s witnesses. “[T]he
prosecutor cannot vouch for the credibility of his witnesses to the effect that he has some special
knowledge concerning a witness’ truthfulness. People v Bahoda, 448 Mich 261, 276; 531 NW2d
659, 667 (1995). However, “although a prosecutor may not vouch for the credibility of a
witness, a prosecutor may argue and make reasonable inferences from the evidence to support a
witness’s truthfulness.” People v Cain, 299 Mich App 27, 36; 829 NW2d 37 (2012), vacated in
part on other grounds 495 Mich 874 (2013), cert den ___ US ___; 134 S Ct 1895 (2014).

       Regarding the investigation, the prosecutor’s full statement was as follows:

               I want to debunk a couple of myths about this case. First of all, I guess
       who does Mr. VanCallis think he is? Like Al Capone or John Gotti or El Chapo,
       that we did a backwards investigation? That we decided when we found April
       Millsap’s body we’re going to simply pin it on him? That for some, I mean Chief
       Smith has been there for eight and a half years, had never heard of the name
       James VanCallis, didn’t know who he is. We worked backwards? We decided to
       find a pair of shoes, match those shoes, know that he had a pair of those shoes and
       then match those shoes to him? Find somebody in the area who owns a
       motorcycle and say, he, he’s got a motorcycle, let’s pin it on him? Really?
       Really? I mean what is all this? 1,000 tips, 1,000 tips! 75 investigators working
       full-time for weeks to find 1,000 tips. Each tip was looked at. Each tip was
       investigated. Each tip on here has a conclusion indicating what was done, where it
       was done and how it was closed out. How about the fact that Armada Village is
       small, so that they went to every house and every business in Armada Village and
       asked questions and filled out surveys, getting information? What about a rolling
       stop or a roadblock where they stopped hundreds and hundreds of people? There
       may have been tips coming in on James VanCallis at the time, and those were sent
       to a special unit. But they didn’t avoid any other tip, they didn’t stop looking.

                                               -12-
       They spent months investigating every possible clue to be certain that there were
       no mistakes.

There was nothing improper about the prosecutor’s statement. It was responsive to defendant’s
implication that he was essentially framed for April’s murder.

       Defendant also complains about the prosecutor’s claim that Krystal was credible:

               One of our other remaining witnesses is Krystal Stadler. I think it would
       have been real easy for Krystal to come in here and just simply say more than she
       did. She could have come in here (inaudible) he confessed to me. She could have
       come in here and said before he got rid of the shoes I saw blood. She could have
       come in here and said a lot of different things. She didn’t. It’s not her place.
       Everybody knows what it’s like to be in the situation that she was in, those who
       have had or have been themselves victims of domestic violence. Krystal Stadler is
       a victim of domestic violence. His behavior was physically and verbally abusive
       she told you, and controlling. She exhibits all of the signs of a battered wife. But
       she is submissive, she’s not vengeful. She had no attitude. She didn’t come in
       here yelling and screaming and wanting a pound of flesh. Was she easily
       confused? Unfortunately she was. But I don’t certainly think that she was lying
       when she fully understood the gravity of everything that was going on.

                                             * * *

               She did the best she could. She told you the truth as she remembered it.
       And this is where your role becomes very important in this case because you are
       the one that judges the credibility. My Mr. Sheikh coming on and beating her up
       and making her confused, did that make her less than she was? Or was she just
       too complacent when I was asking her questions? You have to make the decision.
       But I would tell you based on what you saw and what she said she was as
       straightforward as a person that there is.

Nothing in the prosecutor’s statement indicates that he asked the jury to believe Krystal because
he had some special insight into her credibility. Instead, the prosecutor asked the jury to
consider all of the facts and circumstances surrounding her testimony. Because there was
nothing objectionable about the prosecutor’s statements regarding the police investigation and
the prosecution’s witnesses, defense counsel was not ineffective for failing to object. See
Ericksen, 288 Mich App at 201.

                          4. ARGUING FACTS NOT IN EVIDENCE

        Defendant argues that defense counsel was ineffective for failing to object to the
prosecutor’s arguing facts that were not in evidence. Specifically, defendant complains that
there was no evidence of “cleaning streaks” on defendant’s helmet, the size of the tires on his
bike, or that Krystal had the characteristics of a battered spouse. “A prosecutor may not make a
statement of fact to the jury that is not supported by evidence presented at trial and may not
argue the effect of testimony that was not entered into evidence.” Unger, 278 Mich App at 241.


                                              -13-
However, a prosecutor is “generally free to argue the evidence and all reasonable inferences
from the evidence as it relates to [his] theory of the case.” Id.

       As it relates to the cleaning streaks on defendant’s helmet, the prosecutor stated:

               What about the helmet? You saw the helmet. You saw the photographs of
       this helmet. You saw how messy that house was? OCD, my ass! Okay. I mean the
       only clean thing in this house was this helmet, and you saw all of the streaks on it.
       Because he cleaned off the DNA, cleaned off April. In fact he did such a nice job
       even his DNA wasn’t on the helmet.

                                             * * *

       This is the photo of the helmet as it was taken on that night. You can see it in all
       of its glory. The next photographs show you the helmet. Now we can see what we
       didn’t see before, all of the cleaning streaks on it. And more important than the
       clean streaks, the lint still on the helmet from having been cleaned so recently.

The prosecutor did not argue facts not in evidence. Michigan State Police Officer Larissa Lamay
testified:

              Q. [by the prosecutor] Is that the helmet closer up?

              A. Yes, it is.

              Q. Now I’m still seeing what appear to be some cardboard and some
       socks all around it, but this is a closer up picture of it?

              A. Correct.

              Q. Let me ask you something here. I’m going to point it out myself to ask
       you, this, this streaking right here in this area, did you put that on, or law
       enforcement put that on that day?

              A. No, sir.

             Q. I’m going to show you, this is People’s Exhibit 122, do you have it?
       Do you recognize that as another view of the helmet?

              A. Yes.

              Q. Do you recognize that as a side view towards the back?

              A. Yes.

              Q. . . .This streaking right here on the helmet, do you recall putting that
       on there?

              A. No, I did not.

                                               -14-
              Q. Did you notice it that day?

              A. I noticed that the helmet was clean and shiny.

                                                  * * *

              Q. Do you know, did you put these, these streak marks on here?

              A. I did not.

      Regarding the tire size, the prosecutor made the following statement during closing
arguments:

              These are some of the images that we put in, we put them all on one page.
       This is the back camera at Mr. Koss’ house, and this is a picture of the bike.
       What’s critical about this once again you have the white here, the white here.
       You’ve got the black here with the black fender raised like that. The most
       important part of this is this motorcycle has two different sized tires. That’s his
       motorcycle. What do you see here? Two different sized tires.

The tire size, as the cleaning streaks, were “in evidence” because there were photographs of
each.

         Defendant also takes issues with the prosecutor’s characterization of Krystal as a
“battered spouse.” However, Krystal’s testimony supported such a characterization. She
testified that defendant did not allow her to have a phone or a car and that he was often
physically abusive.

       In addition, the trial court cautioned the jury on what was evidence at trial:

       [I]t is important for you to understand what is evidence and what is not evidence.
       Evidence includes only the sworn testimony of witnesses, the exhibits admitted
       into evidence and anything else I told you to consider as evidence.

                                              * * *

       The lawyers’ statements, arguments and commentary are not evidence. They are
       only meant to help you understand the evidence and each side’s legal theories.
       You should only accept things the lawyer’s [sic] say that are supported by the
       evidence or by your own common sense and general knowledge.

Because the prosecutor did not argue facts not in evidence, defense counsel was not ineffective
for failing to object. See Ericksen, 288 Mich App at 201.

                  5. APPEALING TO SYMPATHY AND CIVIC DUTY

       Defendant argues that counsel was ineffective for failing to object when the prosecutor
encouraged the jury to convict defendant based on sympathy and civic duty. “[A] prosecutor

                                               -15-
may not urge the jurors to convict the defendant as part of their civic duty” because such an
argument “unfairly places issues into the trial that are more comprehensive than a defendant’s
guilt or innocence and unfairly encourages jurors not to make reasoned judgments.” People v
Abraham, 256 Mich App 265, 273; 662 NW2d 836 (2003). Nor may a prosecutor “appeal to the
jury to sympathize with the deceased and [her] family.” Id.

       During closing arguments, the prosecutor stated:

               Is there really a question of rape in this case? There’s one and only one
       reason why you would leave a 14 year old girl like this. He has no reason to
       embarrass her. He has no personal connection with her. To embarrass somebody
       means to imply that you have an emotional connection. There wasn’t any. They
       were strangers. This case was a random act, which is why the Village of Armada
       and all of the surrounding areas were scared to their core. Because April Millsap
       is somebody’s daughter. She’s Jennifer’s daughter, but she could have been
       anybody’s daughter that day on the trail.

The prosecutor’s comment was focused on the randomness of the crime and did not ask the jury
to convict out of sympathy or civic duty. Moreover, the trial court instructed the jury:
“Remember that you have taken an oath to return a true and just verdict based only on the
evidence and my instructions on the law. You must not let sympathy or prejudice influence your
decision.” Because there was nothing objectionable about the prosecutor’s statement, defense
counsel was not ineffective for failing to object. See Ericksen, 288 Mich App at 201.

                    III. ADMISSION OF “GRUESOME” PHOTOGRAPHS

        Defendant argues that the trial court abused its discretion by admitting gruesome photos
for the jury to consider where defendant never disputed the brutality of the killing nor the cause
of death. “The decision to admit or exclude photographs is within the sole discretion of the trial
court.” People v Mills, 450 Mich 61, 76; 537 NW2d 909, modified 450 Mich 1212 (1995).

       “[P]hotographs are not excludable simply because a witness can orally testify about the
information contained in the photographs.” Id. at 76. Instead, “[t]he proper inquiry is always
whether the probative value of the photographs is substantially outweighed by unfair prejudice.”
Id.

       If photographs which disclose the gruesome aspects of an accident or a crime are
       not pertinent, relevant, competent, or material on any issue in the case and serve
       the purpose solely of inflaming the minds of the jurors and prejudicing them
       against the accused, they should not be admitted in evidence. However, if
       photographs are otherwise admissible for a proper purpose, they are not rendered
       inadmissible merely because they bring vividly to the jurors the details of a
       gruesome or shocking accident or crime, even though they may tend to arouse the
       passion or prejudice of the jurors. [Id. at 77 (quotation marks and citations
       omitted).]

       At trial, defense counsel objected to pictures that were “cumulative” and “unfairly
prejudicial.” Counsel noted the fact that April “died a brutal death is not an issue. I don’t know
                                              -16-
what purpose they would serve to show all 36 [photographs].” The prosecutor responded that the
photographs were his:

       attempt to illustrate through the Medical Examiner’s testimony the depth, breadth,
       severity and nature of the injuries. If there’s no stipulation in this case that this is
       a first degree murder, if there is we may consider accepting such a stipulation. But
       I have to show that this was a first degree murder, either by premeditation and
       deliberation, Judge, or I have to show a felony murder, which is intent to kill, do
       great bodily harm or create a high degree of risk of death or great bodily harm,
       knowing that death is a likely result, in conjunction with another felony.

The prosecutor noted that there were other more gruesome pictures that he was not electing to
show the jury.

        The trial court stated: “I grew up in a funeral home, 16 years. So I’m a very poor judge of
what gruesome is, that’s the problem. But two pictures stand out that caught me very deeply
when I viewed them that I’ve looked at.” The judge pointed to exhibits 76 and 93. In reference
to 76, the trial court noted that she was “more offended by it being so close” than anything else.
She pointed out that another picture (86) was similar and less gruesome. The prosecutor
explained the difference between 76 and 86:

               It doesn’t look as gruesome because it’s not at the scene and in that picture
       I can indicate she’s cleaned up at the Medical Examiner’s Office. This is her with
       her hair brushed away from her face. There appears to be, I guess what you’d call
       a tear mark coming down her right eye. There’s blood oozing from her mouth, her
       nose and her eye actually. You’ll hear testimony that exsanguination, in other
       words bleeding to death was not what caused her death. But the blood oozing
       from her mouth and her nose and her eye is consistent with what Investigator
       Kusluski testified to, which may account for the small amount of blood seen at the
       scene.

Defense counsel nonetheless argued that it was “repetitive” and that there were “other pictures in
there that show the exact same thing.”

       The prosecutor argued that exhibit 93 was important because:

       you see this neck injury because her head is tilted back, as well as almost an
       overall view of the, across her chest, the herringbone pattern of injuries. And I
       know the herringbone pattern of injuries is depicted in a few other photographs,
       but this injury right here in terms of the context of that injury to the other injuries
       I think is well depicted in that photograph.

         The prosecutor believed both photographs were “probative, relevant and appropriate to
illustrate the injuries.” The trial court was somewhat hesitant, noting “I don’t know how to
define gruesome . . . I don’t know how to put myself in the feet and the shoes of the jury in
making a determination as to what may cause them to become upset.” Still, the trial court
acknowledged that the prosecutor had to “get across your point, and I do understand that you
need to get your point across.” The trial court concluded:
                                                -17-
               I’m going to allow for the pictures to be shown, however you’re going to
       have to make sure that you give this jury a warning, indicating that they are very
       gruesome pictures and I don’t know what their reaction is going to be. I
       understand what you need to do with the picture that I find distasteful, and that
       Number 76, and I agree that there are no other pictures that show the clarity of the
       blood from the mouth as well as the nose, as 76. Because she in all of the other
       pictures has been more or less cleaned up. I’m going to allow it.

The trial court also allowed photograph 93. “I just believe that in today’s day and age this jury
has probably seen more gruesome pictures in the television broadcasting of various shows. I just
want them to be given the opportunity to prepare themselves.”

       After viewing the photos, we are convinced that their sole purpose was not to inflame the
jury. Instead, the photographs were relevant to show the extent of April’s injuries and identify
defendant as the killer through comparable tread patterns. The photographs were also relevant to
explain the absence of physical evidence at the scene. The trial court carefully considered the
photos before it determined that they were relevant and not substantially more prejudicial than
probative. Its decision did not fall outside the principled range of outcomes.

                           IV. SUFFICIENCY OF THE EVIDENCE

       In his Standard 4 Brief, defendant argues that the evidence at trial was insufficient to
support his convictions. A defendant’s challenge to the sufficiency of the evidence is reviewed
de novo on appeal. People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). “In
examining the sufficiency of the evidence, this Court reviews the evidence in a light most
favorable to the prosecutor to determine whether any trier of fact could find the essential
elements of the crime were proven beyond a reasonable doubt.” People v Reese, 491 Mich 127,
139; 815 NW2d 85 (2012) (quotation marks omitted).

        Defendant does not dispute that each of the crimes were committed and the elements
satisfied; instead, he argues that the evidence was insufficient to prove that he was the one
responsible for April’s death. Identity is an element of every crime. People v Yost, 278 Mich
App 341, 356; 749 NW2d 753 (2008). Like any other element of a crime, identity may be
established on the basis of circumstantial evidence and reasonable inferences from the evidence.
People v Dunigan, 299 Mich App 579, 582; 831 NW2d 243 (2013). “[P]ositive identification by
witnesses may be sufficient to support a conviction of a crime” and “[t]he credibility of
identification testimony is a question for the trier of fact that we do not resolve anew.” People v
Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000). Therefore, despite inconsistencies in
identification testimony, a jury is free to conclude that a witness is nonetheless credible. People
v Fletcher, 260 Mich App 531, 561; 679 NW2d 127 (2004).

        Viewed in a light most favorable to the prosecution, there was sufficient evidence to
prove that defendant committed the crimes charged. Eric Reschke knew April because she was
his daughter’s acquaintance from church. He saw April walking her dog on the trail at
approximately 6:25 p.m. Right next to April was a motorcycle. When Reschke passed by again
25 minutes later, he did not see April or the motorcycle. William Buchanan testified that he did
not see April on the trail that day, but he positively identified defendant as the man he saw on the

                                               -18-
motorcycle. Amy and Gail Spinella saw a young girl on the trail along with a man on a
motorcycle. When they came through the area a few minutes later, the girl was nowhere to be
seen. The dog was whimpering and Amy saw a man with piercing eyes standing nearby. She
did not positively identify defendant as the man at trial nor could she exclude him. Amy helped
police in compiling a composite sketch for the public. Mary Stein was convinced that defendant
was the man she saw on a motorcycle that day at around 6:30. She positively identified April as
the young girl walking near defendant. Mary paid particular attention because the whole
situation – a motorcycle on the path, a young girl with an older man – seemed “strange.” Mary
had an opportunity to see defendant’s features as she rode past, noting that he had an angry look
on his face.” Doug Stein positively identified April as the girl he saw on the trail, but could not
specifically identify defendant. Still, Doug agreed with Mary that the situation was unusual. He
paid particular attention to the motorcycle. The jury had an opportunity to watch an animation
that showed the path and rate of travel that April’s phone took. At 6:28 she texted “I was almost
kidnapped. OMFG.” Phone records revealed that defendant was not at his brother’s house until
after 7:00 p.m.

        In addition to these eyewitnesses, defendant’s ex-girlfriend, Krystal Stadler, testified that
she woke up in the middle of the night to find defendant cleaning his shoes with a sock and hand
sanitizer. He made comments to Krystal to effect that she had to “stand by his side.” She could
tell by his demeanor that he had done something wrong. Krystal observed defendant wearing
Jordans on a daily basis. A comparable pair of Jordans were of limited association to the treads
found on April’s body. Krystal testified that defendant ordered her to tell police officers that he
was wearing K-Swiss shoes when he left the house that evening. Defendant’s computer had
searches that included “how to make a girl that does not want you to want you”, “why does this
girl ignore me,” and “why would this girl say I’m too old for her and still hit on me.”

        Although there was no physical evidence tying defendant to the crime, there was plenty
of circumstantial evidence from which a jury could conclude that defendant was the perpetrator.
Defendant complains that there was no competent evidence tying him to the crime, but it is clear
that he really argues that the prosecution’s witnesses were not worthy of belief and that there
were simply too many inferences to support his conviction. An appellate court must “not
interfere with the trier of fact’s role of determining the weight of the evidence or the credibility
of witnesses.” People v Eisen, 296 Mich App 326, 331; 820 NW2d 229 (2012). “All conflicts in
the evidence must be resolved in favor of the prosecution.” People v Kanaan, 278 Mich App
594, 619; 751 NW2d 57 (2008). Based on reasonable inferences, there was sufficient evidence
that defendant was the killer.

       Affirmed.



                                                              /s/ Cynthia Diane Stephens
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Kirsten Frank Kelly




                                                -19-
