            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 1, 2019
               Plaintiff-Appellee,

v                                                                  No. 341728
                                                                   Wayne Circuit Court
ULISES ALVARADO,                                                   LC No. 17-001471-02-FC

               Defendant-Appellant.


Before: GADOLA, P.J., and BOONSTRA and SWARTZLE, JJ.

PER CURIAM.

       Defendant appeals as of right his jury convictions for assault with intent to inflict great
bodily harm less than murder (AWIGBH), MCL 750.84, felon in possession of a firearm, MCL
750.224f, and commission of a felony while possessing a firearm (felony-firearm), MCL
750.227b. Defendant was sentenced as a second offense habitual offender, MCL 769.10, to
concurrent sentences of 6 to 15 years for AWIGBH and 4 to 7½ years for felon in possession, to
be served consecutively to a two-year sentence for felony-firearm. We affirm.

                                           I. FACTS

       Defendant’s convictions arise from the shooting of Devin Wellman on the night of
January 11, 2017, in Detroit. Wellman was in a car driven by his friend, Jerry Brake. Another
companion, whom Wellman knew only as Weecho, was a passenger in the back seat of the car.
Wellman received an instant message from a friend he called “Pops,” later identified as
defendant, asking to buy marijuana. Wellman met defendant at an intersection to make the sale.
Defendant arrived in a Ford Explorer, and got out and approached the front passenger seat of the
vehicle where Wellman was sitting. The two talked while Brake weighed the marijuana.
Defendant asked to see Wellman’s weapon; Weecho also passed his weapon out to defendant.
Defendant apparently concluded that Weecho had stolen the guns; once he had both weapons,
defendant said that both guns belonged to his friend, then turned and yelled something toward
the Explorer. Two people jumped out of the Explorer and started shooting at the car. Wellman
ducked, but was shot in the right side of his back as Brake pulled away.




                                               -1-
        Brake drove to a hospital, where Wellman underwent emergency surgery. The next day,
Wellman identified defendant to police as the person who had walked up to his car, taken the
guns, and signaled to the shooters. Two days later, Wellman identified both defendant and one
of the shooters in a photo lineup. While Wellman was still in the hospital, defendant messaged
him on Facebook, admitting that it was his fault that Wellman was shot, apologizing, and telling
Wellman to advise Brake not to mention defendant’s name. After a jury trial in which Wellman
was the only res gestae witness, defendant was convicted of AWIGBH, possession of a firearm
during the commission of a felony, and felony-firearm. Defendant now appeals to this Court.

                                        II. DISCUSSION

                            A. MISSING WITNESS INSTRUCTION

        Defendant first contends that he was entitled to have the jury instructed that because Jerry
Brake did not testify, the jury could infer that his testimony would have been unfavorable to the
prosecution. Defendant argues that he was prejudiced by the trial court’s refusal to give this
instruction. We disagree.

         This Court reviews de novo an issue of law arising from a jury instruction, but we review
for an abuse of discretion the trial court’s determination that a jury instruction is or is not
applicable to the facts of the case. People v Everett, 318 Mich App 511, 528; 899 NW2d 94
(2017). Specifically, we review for an abuse of discretion the trial court’s determination of due
diligence and the applicability of the missing witness instruction. People v Eccles, 260 Mich
App 379, 389; 677 NW2d 76 (2004). A trial court abuses its discretion when the outcome is not
within the range of reasonable and principled outcomes. Everett, 318 Mich App at 516. Further,
when a trial court makes an instructional error, reversal is not warranted unless it affirmatively
appears more probable than not that the error affected the outcome of the proceeding. Id. at 528.
It is the defendant’s burden to establish that the reliability of the verdict was undermined by the
trial court’s instructional error. Id. at 528-529.

        A defendant in a criminal trial is entitled to have a properly instructed jury consider the
evidence against him or her. People v Armstrong, 305 Mich App 230, 239; 851 NW2d 856
(2014). The disputed instruction here, M Crim JI 5.12, states: “[State name of witness] is a
missing witness whose appearance was the responsibility of the prosecution. You may infer that
this witness’s testimony would have been unfavorable to the prosecution’s case.” This
instruction is warranted if the prosecution endorses a witness, then fails to exercise due diligence
to produce the witness. Everett, 318 Mich App at 527. Due diligence requires that everything
reasonable in a particular case be done, but does not require that everything possible be done.
Eccles, 260 Mich App at 391.

        In this case, Detective Eduardo Torres testified regarding the prosecution’s efforts to
secure Brake’s trial testimony. Torres initially issued a subpoena requiring Brake to appear and
testify at defendant’s preliminary examination. When Brake failed to appear, no efforts were
made to locate him for approximately six months. About six weeks before trial, Torres made
several phone calls to Brake, talked to his parents, and went to Brake’s address. After about two
weeks, Torres obtained a witness detainer for Brake, which he turned over to the fugitive
apprehension team of the United States Marshal Service, along with all the information he had

                                                -2-
regarding Brake. The marshals went to both Brake’s parents’ houses, searched Brake’s home,
searched their own databases, and conducted surveillance, but did not find Brake. When Brake
did not appear on the first day of trial, a victim’s advocate called his mother’s house and did not
receive an answer. Torres followed up on a lead that Brake may have turned himself in to the
Westland police, but did not locate him. On these facts, defendant has not shown that the
prosecution failed to exercise due diligence. Further, even if the instruction had been warranted,
defendant is not entitled to relief on this issue because he failed to establish any likelihood that
the decision affected the outcome of the case. Everett, 318 Mich App at 528. We therefore
conclude that the trial court did not abuse its discretion by declining to give the requested jury
instruction.

                           B. GREAT WEIGHT OF THE EVIDENCE

       Defendant next contends that his guilty verdicts were against the great weight of the
evidence. Defendant argues that only Wellman identified him as the person who signaled the
men to shoot and that Wellman is not credible, and as a result the prosecution failed to prove
defendant’s identity beyond a reasonable doubt. Again, we disagree.

        Defendant failed to preserve the argument that the verdict was against the great weight of
the evidence by requesting a new trial before the trial court. See People v Cameron, 291 Mich
App 599, 617; 806 NW2d 371 (2011). Our review of this issue therefore is limited to plain error
affecting defendant’s substantial rights. Id. at 618. Under the plain error rule, a defendant must
establish that a clear or obvious error was made and that the error affected the outcome of the
lower court proceedings. Id.

       A verdict cannot be said to be against the great weight of the evidence unless “the
evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to
allow the verdict to stand.” People v Lacalamita, 286 Mich App 467, 469; 780 NW2d 311
(2009). Generally, a verdict will not be vacated unless the evidence does not reasonably support
the verdict, and the verdict instead was arrived at by “causes outside the record, such as passion,
prejudice, sympathy, or other extraneous influence.” Id.

        In this case, defendant argues that the prosecution did not prove defendant’s identity as
the person who signaled the men to shoot, because Wellman, the only witness identifying
defendant, is not credible. Identity is an element of every crime, and the prosecution is therefore
obligated to prove the identity of the defendant as the perpetrator as an element of the offense.
See People v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008). Here, Wellman identified
defendant to police as the perpetrator who gave the signal to the men in the Ford Explorer to
begin shooting. Wellman was well-acquainted with defendant before the shooting, and testified
clearly, unequivocally, and consistently that it was defendant who set up the marijuana buy,
walked up to the car where Wellman was sitting, and signaled the shooters once he had taken the
guns from the occupants of the car. There was no contradictory testimony, nor did Wellman’s
testimony about defendant contradict any physical facts. We disagree that inconsistencies in
Wellman’s testimony regarding minor details, such as whether he gave defendant any marijuana,
or whether his gun was on his lap, on the console, or next to the console before he handed it to
defendant, impeach his identification of defendant. Wellman’s identification of defendant
therefore provides sufficient evidence to support the element of identity. See People v Davis,

                                                -3-
241 Mich App 697, 700; 617 NW2d 381 (2000) (positive identification by witnesses may be
sufficient to support a conviction). Defendant therefore has failed to establish plain error
affecting his substantial rights necessary to prevail on this unpreserved issue.

                               C. PHOTOGRAPHIC EVIDENCE

       Defendant also contends that the trial court denied him his constitutional right to defend
himself when the trial court excluded certain photographs that defendant wished to introduce,
which showed Wellman holding an automatic weapon and making a gang sign with his hand.
Again, we disagree. We review the trial court’s decision to admit or exclude evidence for an
abuse of discretion, although preliminary questions of law regarding admissibility are reviewed
de novo. See People v Jackson, 498 Mich 246, 257; 869 NW2d 253 (2015).

        “A criminal defendant has both state and federal constitutional rights to present a
defense.” People v Steele, 283 Mich App 472, 488; 769 NW2d 256 (2009). A trial court abuses
its discretion when it excludes evidence that tends to prove a defense.1 Id. at 488-489. But
although the right to present a defense is a fundamental element of due process, it is not absolute
because “[t]he accused must still comply with ‘established rules of procedure and evidence
designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’ ”
People v Kowalski, 492 Mich 106, 139; 821 NW2d 14 (2012) (citation omitted).

        Generally, all relevant evidence is admissible unless otherwise prohibited by the rules of
evidence or the state or federal constitutions. MRE 402; People v Sharpe, 319 Mich App 153,
163; 899 NW2d 787 (2017). 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. However, even if evidence is
relevant, it “may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice.” MRE 403.

        Defendant in this case sought to introduce certain photographs taken from a YouTube rap
video Wellman performed in in the past, depicting Wellman and others holding guns and
flashing hand signs. Defense counsel argued that the photographs were relevant to Wellman’s
credibility as a witness because it refuted his testimony that he had never been a gang member
and no longer used guns. Defense counsel also argued that the photographs depicted Wellman to
be a menacing person. The trial court determined that the photographs were not relevant, and
therefore were inadmissible. The trial court reasoned that Wellman had already testified that he
had used guns in the past and had a gun in his possession on the night of the shooting. On
appeal, defendant argues that the trial court thereby deprived him of the defense of
demonstrating that Wellman, the only res gestae witness against him, was a liar.




1
  Even when a trial court does so abuse its discretion, however, the error does not always rise to
the level of a constitutional deprivation of rights, and it can be harmless error. Steele, 283 Mich
App at 489.


                                                -4-
        We conclude that the trial court correctly ascertained that the photographs were not
relevant. Wellman testified that he had “messed with” guns in his past and that he had been in
possession of a gun on the night he was shot. Therefore, to impugn his credibility on this
testimony, defendant needed to show that Wellman still “messed with” guns. The record
indicates that there appeared to be no dispute that had Wellman been questioned on the subject,
he would have testified that the photographs were from a rap video that he made years before the
shooting. The photographs therefore had no probative value because they did not demonstrate
that Wellman lied when he said he no longer messed with guns. The picture of Wellman making
a gang sign came from the same rap video. Flashing a gang sign in that context does not make it
more likely that Wellman lied when he said he was never in a gang. Because the photographs
lack probative value relative to Wellman’s credibility, they are irrelevant under MRE 401, and
therefore inadmissible. The trial court therefore did not abuse its discretion when it denied
defendant’s request to admit the photos, nor did it deny defendant’s right to present a defense.

       Affirmed.



                                                           /s/ Michael F. Gadola
                                                           /s/ Mark T. Boonstra
                                                           /s/ Brock A. Swartzle




                                              -5-
