                             STATE OF MICHIGAN

                              COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      October 11, 2016
                 Plaintiff-Appellee,

v                                                                     No. 326735
                                                                      Washtenaw Circuit Court
JOEI ALEXANDER JORDAN,                                                LC No. 13-001836-FC

                 Defendant-Appellant.


Before: RIORDAN, P.J., and METER and OWENS, JJ.

PER CURIAM.

        Defendant Joei Alexander Jordan appeals as of right his jury-trial convictions of first-
degree felony murder, MCL 750.316(1)(b); first-degree home invasion, MCL 750.110a(2); and
conspiracy to commit first-degree home invasion, MCL 750.110a(2).1 The trial court sentenced
him to life without parole for the murder conviction and to 95 months’ to 20 years’ imprisonment
for the latter two convictions. We affirm.

       On the night of July 23, 2013, defendant, Shaquille Jones, and Dajeon Franklin went to
Ann Arbor. While walking around Ann Arbor, the men passed two other men on the street, and
defendant asked Franklin if he had “that,” meaning Franklin’s .40-caliber Glock handgun.
According to defendant’s trial testimony, Franklin gave him a look as if to say, “Do I look
stupid?”

        Defendant entered 210 North Ingalls Street with the aid of the two others and stole a
MacBook, purse, and wallet while a woman was upstairs in a bed in the house and while a light
in the living room was illuminated. Defendant then decided to enter 220 North Ingalls Street.
Defendant entered the house through a window and tried to steal a television, but he exited the
home when he heard voices. The men observed people inside the home when they walked away
from the house. Defendant testified that he was not satisfied with what they had stolen and
wanted to go back to 220 North Ingalls. They returned again to 220 North Ingalls, and defendant
entered a window. Thereafter, Jones and Franklin entered through a door. The three men went
into the basement of the residence, and when they heard voices, they went into a pantry to hide.


1
    Defendant pleaded guilty to additional crimes, as stated infra.


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       After the voices stopped, defendant, Jones, and Franklin entered a basement bedroom,
which was dark. The victim, Paul DeWolf, slowly stood up from his bed and walked toward the
door. Defendant observed Franklin holding his gun in a firing position as the victim approached.
Defendant then observed Franklin pull the gun back and hit the victim with the gun. The gun
discharged. Defendant, Jones, and Franklin ran out of the residence. The victim died from the
gunshot wound. Police were able to identify and locate defendant after investigating the sale of
the MacBook stolen from 210 North Ingalls.

        Immediately before trial, defendant pleaded guilty to first-degree home invasion and
conspiracy to commit second-degree home invasion with respect to defendant’s involvement
with 210 North Ingalls. A jury convicted defendant as stated above for his actions at 220 North
Ingalls, and defendant now appeals.

        First, defendant argues that there was insufficient evidence that defendant knew in
advance that Franklin carried the gun that evening or that defendant intended for Franklin to use
the gun and, accordingly, defendant’s felony-murder conviction was not proven beyond a
reasonable doubt. We disagree. This Court reviews de novo claims regarding the sufficiency of
the evidence. See People v Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001).

        Defendant’s entire argument is based upon the aiding-and-abetting standard set forth in
Rosemond v United States, ___ US ___, ___; 134 S Ct 1240, 1251; 188 L Ed 2d 248 (2014).
However, Rosemond is limited to prosecutions for particular statutory federal offenses, is
irrelevant to this case, and does not change the aiding-and-abetting standard in Michigan. See
People v Blevins, ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 315774), slip op
at 6. Therefore, defendant’s argument is meritless. Moreover, applying the applicable Michigan
aiding-and-abetting standard, there was “sufficient evidence to justify the jury’s finding that
defendant was guilty of felony murder beyond a reasonable doubt. People v Wolfe, 440 Mich
508, 513-514; 489 NW2d 748, amended 441 Mich 1201 (1992).

        A person who aids and abets another in the commission of felony murder “shall be
punished as if he had directly committed such offense.” MCL 767.39. For aiding and abetting,
the prosecution generally must show that “(1) the crime charged was committed by the defendant
or some other person, (2) the defendant performed acts or gave encouragement that assisted the
commission of the crime, and (3) the defendant intended the commission of the crime or had
knowledge that the principal intended its commission at the time he gave aid and
encouragement.” People v Carines, 460 Mich 750, 757-758; 597 NW2d 130 (1999) (citations
and quotation marks omitted). With regard to the “intent” element, the Michigan Supreme Court
has held that, for a conviction under an aiding-and-abetting theory, “the prosecutor must prove
beyond a reasonable doubt that the defendant aided or abetted the commission of an offense and
that the defendant intended to aid the charged offense, knew the principal intended to commit the
charged offense, or, alternatively, that the charged offense was a natural and probable
consequence of the commission of the intended offense.” People v Robinson, 475 Mich 1, 15;
715 NW2d 44 (2006) (emphasis added).

       First, it is uncontested that Franklin killed the victim in the course of a home invasion.
Next, defendant performed acts or gave encouragement that assisted in the commission of the
crime. Carines, 460 Mich at 757. Defendant conversed with Franklin a few days before the

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killing about wanting to “[r]ob.” Before the home invasion at 220 North Ingalls, defendant said,
“What are you all standing around for? Let’s go in,” and it was defendant’s self-proclaimed
greed that brought them back to the victim’s home a second time. Even more, defendant testified
that he might have let the others into 220 North Ingalls by opening the back door after he went
through a window. Therefore, based on defendant’s testimony alone, there was sufficient
evidence for the jury to reasonably conclude that defendant’s actions and words encouraged and
helped Franklin to commit the crime. Id. Third, there was sufficient evidence for the jury to
infer that, under the circumstances of this case, murder was the natural and probable
consequence of the intended offense. See Robinson, 475 Mich at 15. The jury could infer from
the facts and circumstances that defendant knew Franklin had a gun. Carines, 460 Mich at 757-
758 (discussing inferences). The prosecution presented evidence (a police interview) that when
defendant asked Franklin, before the home invasion in question, if he had a gun, Franklin made
movements indicating an affirmative answer. Given that defendant intended that Franklin assist
him in committing home invasion of a residence that defendant had reason to know was
occupied, all while defendant knew that Franklin was armed with a gun, the jury had sufficient
evidence to convict defendant of felony murder. See, generally, Robinson, 475 Mich at 15.

        Next, defendant argues that the trial court improperly admitted other-acts evidence when
it allowed evidence of the minutes-earlier home invasion of 210 North Ingalls. Defendant’s
brief, however, is devoid of any legal reasoning to support his conclusion that the evidence of the
home invasion at 210 North Ingalls was not probative. He merely states that “[t]here was
nothing probative” about the evidence of the earlier home invasion but does not explain and
support why this is so. Defendant has, improperly, “merely announce[d] his position and [left] it
to this Court to discover and rationalize” the basis for his claim. People v Kelly, 231 Mich App
627, 640-641; 588 NW2d 480 (1998). He alternatively implies that the evidence was more
prejudicial than probative but again does not give any analysis regarding what the probative
value, as weighed against the prejudicial effect, might have been. At any rate, the evidence was
probative of defendant’s intent to conspire with the others to commit first-degree home invasion,
and it was not substantially outweighed by the danger of unfair prejudice. See People v
VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994)
(discussing the test for admissibility of other-acts evidence), and People v Buie, 298 Mich App
50, 73; 825 NW2d 361 (2012) (discussing the concept of unfair prejudice).

        Third, defendant asserts that he was denied the effective assistance of counsel when
defense counsel failed to inform him of the mandatory life-without-parole sentence a felony-
murder conviction carries. We remanded this case for an evidentiary hearing, and the trial court
determined that defendant was not denied the effective assistance of counsel. We also conclude
that defendant has failed to demonstrate that he was denied the effective assistance of counsel.

        “Both the Michigan and the United States Constitutions require that a criminal defendant
enjoy the assistance of counsel for his or her defense.” People v Trakhtenberg, 493 Mich 38, 51;
826 NW2d 136 (2012), citing Const 1963, art 1, § 20, and US Const, Am VI. This right extends
to the plea-bargaining process. Lafler v Cooper, ___ US ___; 132 S Ct 1376, 1384; 182 L Ed 2d
398 (2012). To establish ineffective assistance of counsel, a defendant must show that “(1)
counsel’s performance fell below an objective standard of reasonableness and (2) but for
counsel’s deficient performance, there is a reasonable probability that the outcome would have
been different.” Trakhtenberg, 493 Mich at 51.
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         “In the context of pleas a defendant must show the outcome of the plea process would
have been different with competent advice.” Lafler, ___ US at ___; 132 S Ct at 1384. Where
the alleged prejudice is that the defendant stood trial instead of waiving it and accepted a plea
offer, the defendant must show

       that but for the ineffective advice of counsel there is a reasonable probability that
       the plea offer would have been presented to the court (i.e., that the defendant
       would have accepted the plea and the prosecution would not have withdrawn it in
       light of intervening circumstances), that the court would have accepted its terms,
       and that the conviction or sentence, or both, under the offer’s terms would have
       been less severe than under the judgment and sentence that in fact were imposed.
       [Id. at ___; 132 S Ct at 1385.]

         Here, defense counsel testified that he spoke with defendant at least 10 and up to 20 times
about the multiple plea offers. According to defense counsel, he explained to defendant that if he
were to be convicted of felony murder, “he would spend the rest of his life in prison.” Defense
counsel recollected telling defendant “over and over” that “[i]f you are convicted, you are going
to spend the rest of your life in prison.” While defense counsel did not recall using the phrase
“life without parole,” he testified that it was not possible that he did not inform defendant of the
mandatory nature of the sentence accompanying a felony-murder conviction. Defense counsel
testified that he had this discussion with defendant at least 10 and probably 20 times. Defense
counsel testified that defendant rejected the plea offers for two reasons: first, the sentencing offer
was too high, and second, he was not a murderer. Defense counsel testified that he “absolutely”
explained the risks of going to trial to defendant. Defense counsel testified that defendant
“would not accept responsibility for the murder . . . .” While defendant testified that defense
counsel did not tell him that he “would” get a life-without-parole sentence, but rather that
defendant “could” get a life sentence, the trial court found defense counsel’s testimony credible.
We give regard to the trial court’s special ability to judge the credibility of witnesses who appear
before it. People v Dendel, 481 Mich 114, 130; 748 NW2d 859, amended 481 Mich 1201
(2008); see also MCR 2.613(C). Defendant has not established that defense counsel’s
performance “fell below an objective standard of reasonableness . . . .” Trakhtenberg, 493 Mich
at 51.

        Finally, defendant in his Standard 4 brief asserts that the trial court improperly admitted
prosecution exhibit 116, a transcript of text messages between defendant and Jones that occurred
after the murder. Defense counsel raised an objection to the admission of the exhibit. We thus
review the admission of this other-acts evidence for an abuse of discretion. People v Dobek, 274
Mich App at 58, 84-85; 732 NW2d 546 (2007). Approximately five weeks after the murder,
defendant sent Jones multiple text messages asking Jones if he wanted to “rob” and commit
home invasions. One of the messages about home invasion involved a woman present in a home
“by herself” due to an injury from which she was suffering. To protect defendants against
impermissible character inferences, claims of improperly admitted other-acts evidence are
evaluated under a four-part test set forth in VanderVliet, 444 Mich at 55:

       First, that the evidence be offered for a proper purpose under Rule 404(b); second,
       that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the
       probative value of the evidence is not substantially outweighed by unfair

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       prejudice; fourth, that the trial court may, upon request, provide a limiting
       instruction to the jury.

       Here, the prosecution’s proper purpose for this evidence as stated in its notice of intent to
use other-acts evidence was that the text messages were evidence of defendant’s motive, scheme
and plan, and intent, which are all proper purposes enumerated in MRE 404(b)(1).

        It is insufficient to simply articulate a proper noncharacter purpose; the evidence also
must be relevant. People v Crawford, 458 Mich 376, 387-388; 582 NW2d 785 (1998). In light
of defendant’s testimony, the text message exchange was relevant to demonstrate that
defendant’s plan or scheme to commit home invasions did not involve avoiding people being
present in the homes at the time of the invasions. The evidence of defendant discussing robbing
people made it less probable that defendant’s scheme or plan was to avoid occupied residences,
contrary to defendant’s claims. Id. at 387. Moreover, the evidence was relevant to defendant’s
intent to conspire with others to enter the victim’s occupied residence and commit larceny
therein.

        Additionally, the probative value of the evidence was not substantially outweighed by the
danger of unfair prejudice. The text message exchange demonstrated that defendant was
planning bad acts similar to a charged crime. See People v Watkins, 491 Mich 450, 487; 818
NW2d 296 (2012). The text messages occurred within six weeks of the events leading to the
charges, demonstrating fairly close temporal proximity. Id. The text messages demonstrated
that the other acts were not something that were infrequently occurring, but rather that defendant
and Jones were frequently committing or discussing home invasions throughout the summer of
2013. Id. The evidence was also reliable because defendant admitted to sending and receiving
the messages. Id. The evidence was also highly probative because it tended to contradict
defendant’s statements at trial, so there was a need for the other-acts evidence apart from
defendant’s own testimony. Id. at 487-488. “A party’s case is always damaged by evidence that
the facts are contrary to his contentions, but that cannot be grounds for exclusion.” People v
Vasher, 449 Mich 494, 501; 537 NW2d 168 (1995). The probative value of the text messages
was not substantially outweighed by the danger of unfair prejudice.

        Finally, the fourth prong of VanderVliet, 444 Mich at 55, allows the trial court to give a
limiting instruction to the jury. “A limiting instruction generally ‘suffice[s] to enable the jury to
compartmentalize evidence and consider it only for its proper purpose . . . .’ ” People v Mardlin,
487 Mich 609, 629; 790 NW2d 607 (2010), quoting Crawford, 458 Mich at 399 n 16. “Jurors
are presumed to follow their instructions, and instructions are presumed to cure most errors.”
People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003). Contrary to defendant’s
claim, the jury was given a limiting instruction pertaining to, among other things, “improper acts
for which he is not on trial.” The trial court did not abuse its discretion when it admitted the
exhibit.

       Affirmed.

                                                              /s/ Michael J. Riordan
                                                              /s/ Patrick M. Meter
                                                              /s/ Donald S. Owens

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