                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 22, 2016
               Plaintiff-Appellee,

v                                                                  No. 327926
                                                                   Berrien Circuit Court
GALIEN ALEXANDER GLENN,                                            LC No. 2014-004051-FC

               Defendant-Appellant.


Before: SAWYER, P.J., and MARKEY and O’BRIEN, JJ.

PER CURIAM.

        Defendant, Galien Alexander Glenn, was convicted by a jury of two counts of assault
with intent to rob while armed, MCL 750.89; one count of carrying a dangerous weapon with
unlawful intent, MCL 750.226; and two counts of assault with a dangerous weapon (felonious
assault), MCL 750.82. Defendant was sentenced to 12 to 40 years’ imprisonment for each of his
two assault with intent to rob while armed convictions, two to five years’ imprisonment for his
carrying a dangerous weapon with unlawful intent conviction, and two to four years’
imprisonment for each of his two felonious-assault convictions, with the sentences to run
concurrently. Defendant now appeals by right. We affirm.

        First, defendant challenges the pretrial identification procedures at which he was
identified by two of the victims in this case.

        Defendant did not preserve this claim because he did not move to suppress the
identification evidence in the trial court. People v Davis, 241 Mich App 697, 700; 617 NW2d
381 (2000). This Court reviews a trial court’s ruling on the admissibility of identification
evidence for clear error, People v Hornsby, 251 Mich App 462, 466; 650 NW2d 700 (2002), but
we review de novo issues of constitutional law presented, People v Hickman, 470 Mich 602, 605;
684 NW2d 267 (2004). But unpreserved issues, including alleged constitutional errors, are
reviewed for plain error affecting substantial rights. People v Carines, 460 Mich 750, 763-764;
597 NW2d 130 (1999). On plain-error review, the defendant has the burden to show (1) “error”;
(2) that was “plain,” meaning “clear or obvious”; (3) and that affected substantial rights or
caused prejudice, meaning “that the error affected the outcome of the lower court proceedings.”
Id. at 763. Even if a defendant satisfies these requirements, an appellate court must exercise its
discretion. “Reversal is warranted only when the plain, forfeited error resulted in the conviction

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of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or
public reputation of judicial proceedings independent of the defendant’s innocence.” Id. at 763
(citation and quotation marks omitted; alteration in original).

       Defendant suggests that the on-the-scene identification procedure at which one of the
victims, Michael Cunningham, identified him on the night of the incident was impermissibly
suggestive in violation of his due process rights. We disagree.

        “The fairness of an identification procedure is evaluated in light of the total
circumstances to determine whether the procedure was so impermissibly suggestive that it led to
a substantial likelihood of misidentification.” Hornsby, 251 Mich App at 466. “When
examining the totality of the circumstances, courts look at a variety of factors to determine the
likelihood of misidentification.” People v Kurylczyk, 443 Mich at 306 (opinion by GRIFFIN, J.),
505 NW2d 528 (1993).

These factors

       “include the opportunity of the witness to view the criminal at the time of the
       crime, the witness’ degree of attention, the accuracy of the witness’ prior
       description of the criminal, the level of certainty demonstrated by the witness at
       the confrontation, and the length of time between the crime and the
       confrontation.” [Id., quoting Neil v Biggers, 409 US 188, 199-200; 93 S Ct 375;
       34 L Ed 2d 401 (1972).]

Testimony involving an impermissibly suggestive pretrial identification procedure is not
admissible at trial, but “in-court identification by the same witness still may be allowed if an
independent basis for in-court identification can be established that is untainted by the suggestive
pretrial procedure.” Kurylczyk, 443 Mich at 303 (opinion by GRIFFIN, J.).

        The police may conduct a prompt, on-the-scene identification because these procedures
are “reasonable, indeed indispensable, police practices” that “permit the police to immediately
decide whether there is a reasonable likelihood that the suspect is connected with the crime and
subject to arrest, or merely an unfortunate victim of circumstance.” People v Libbett, 251 Mich
App 353, 361; 650 NW2d 407 (2002) (citation and quotation marks omitted). In Libbett, a
carjacking victim gave a description of his two attackers to police officers who arrived at the
scene approximately 10 or 15 minutes after the incident that occurred near midnight. Id. at 355-
356. The victim described the suspects to the police who communicated description to other
police officers by radio. Id. at 356. Another police officer observed a car that matched the
victim’s description at approximately 1:20 a.m. Id. After both a car chase and manhunt, the
police eventually apprehended the four occupants of the car. Id. At 1:54 a.m., the police brought
the victim to where the suspects were being held to see if he could identify any of the suspects as
his attackers. Id. at 356-357, 361, 362. The victim identified the defendant and another
individual as the two attackers who had assaulted him and taken his car. Id.

        The Libbett Court found that the on-the-scene identification did not violate defendant’s
rights. Id. at 362, 363. The Court reasoned that the identification procedure “permitted the
police to immediately decide whether there was a reasonable likelihood that the suspects who

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had been in the car were connected with the crime and subject to arrest, or merely unfortunate
victims of circumstance.” Id. at 361-362. The Court emphasized that two of the four occupants
of the car were likely innocent because the victim had reported that he was attacked by two
people and that the on-the-scene identification allowed the police to distinguish between the
actual perpetrators and other individuals who should be immediately released. Id. at 362. The
Court also explained that one of the main benefits of prompt on-the-scene identifications is to
obtain reliability in the apprehension of suspects. Id. The Court concluded that the two-hour
interval between the crime and the on-the-scene identification was not unreasonable because it
was conducted as promptly as possible and the attackers’ appearance was still fresh in the
victim’s mind. Id. at 362-363. Moreover, there was no evidence that the police made any
suggestive comments at the identification or acted for ulterior motives. Id. at 363.

        In contrast, the Michigan Supreme Court found that a pretrial identification procedure
was “highly suggestive” in People v Gray, 457 Mich 107, 114; 577 NW2d 92 (1998). In Gray, a
police officer “went to the victim’s residence, informed her that they had arrested the defendant,
and showed her a single color photograph of the defendant,” after which, the victim “became
sure that defendant was the one who attacked her.” Id. at 109-111. The Court concluded that
“[t]he display of the single photograph, combined with the statement that this was the man the
police had arrested for the assault, was highly suggestive,” reasoning that “[t]he defendant was
singled out by showing only one photo to the victim, and then the victim was reassured that
defendant was her assailant because of the statement by a police officer that this was the man the
police believed was her assailant.” Id. at 111-112. Additionally, the police officer testified that
he was attempting to calm the victim’s anxieties and was not seeking to have her identify the
defendant. Id. at 113. The Court found that although the police officer did not appear to have a
“malicious” intent, “his subjective intent [did] not eliminate the possibility of a substantial
likelihood of misidentification.” Id. at 113-114.

        In the present case, after Cunningham, Sonya Cooper, and John McCoy were attacked
while walking home from a party store at night, Cunningham called 9-1-1. Sergeant Chris
Takemoto was dispatched to the scene to investigate at approximately 10:00 p.m. and spoke to
Cunningham. At some point, the police were informed that the attackers had been seen going
into a particular house in the neighborhood. Sergeant Takemoto arrived at the house at
approximately 10:45 p.m. Officer Michael Horton and other law enforcement officers were
there as well. The officers knocked on the door and spoke to Cheree Mayfield, who lived at the
house with her five children. Several other individuals, including defendant, also lived at the
house. Mayfield let the officers enter and gave them permission to search the house. Officer
Horton found defendant and three other individuals in an upstairs bedroom. Sergeant Takemoto
then contacted Cunningham and asked him to come to the house to see if he could identify any of
the individuals as his attackers. Both Cunningham and Sergeant Takemoto testified that
Cunningham stood outside of the house as the officers brought each suspect onto the porch and
that Cunningham identified defendant that night. Cunningham also identified defendant in court
during trial as one of the men that he saw that night during the on-the-scene show up.

        Prompt, on-the-scene identification procedures, such as what occurred in the instant case,
are generally permissible. Libbett, 251 Mich App at 361. Furthermore, applying the factors
outlined by the Kurylczyk Court does not lead us to the conclusion that the on-the-scene
identification in this case was impermissibly suggestive.

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         First, regarding the opportunity of the witness to view the criminal at the time of the
crime, Cunningham testified that during the assault, he could see his attackers’ faces illuminated
by the street light. Cunningham’s testimony also showed that the incident lasted long enough for
him to circle and move along with the group of people from the dark area of the street to the
street light. Thus, Cunningham had a sufficient opportunity to view his attackers as the crime
took place. See Kurylczyk, 443 Mich at 306 (opinion by GRIFFIN, J.).

        Second, regarding the witness’ degree of attention, Cunningham had the presence of
mind to get the attackers to move out of the dark and under a streetlight where he could see them
better by moving in a circle pattern toward the street light. He also took actions intentionally
designed to prevent the attackers from getting into his pockets to rob him: he continued to circle
rather than remaining still, and he sat down on the ground so the attackers could not reach into
his pockets. These actions demonstrate Cunningham’s high degree of attention during the
incident. See id.

        Third, regarding the accuracy of the witness’ prior description of the criminal,
Cunningham identified defendant on the night of the incident by stating that “he was the one
with the carrot-top afro that had the dark handgun.” Sergeant Takemoto testified that defendant
had a carrot-top haircut, “like the comedian,” that night and that defendant’s haircut was “more
like a carrot-top” that night than it was at trial. Detective Michael Clark testified that during the
on-the-scene identification, defendant was brought to the door, Cunningham pointed out
defendant, and Cunningham told Sergeant Takemoto some details about how defendant was
involved in the robbery. While Cunningham testified that he saw more than one person that
night with a carrot-top haircut, he also testified that he saw defendant’s face during the incident,
and Cunningham in fact identified defendant specifically as one of the attackers. Because there
is no evidence in the record of a description of defendant given by Cunningham before the show-
up, this factor does not affect the suggestiveness determination significantly one way or the
other. See id.

        Fourth, regarding the level of certainty demonstrated by the witness at the confrontation,
we note that it appears from the testimony that Cunningham was certain about his identification.
Cunningham, Sergeant Takemoto, and Detective Clark each testified simply that Cunningham
identified defendant. There is no evidence that Cunningham was hesitant, indecisive, or in any
way uncertain about this identification. See id.

        Fifth, regarding the length of time between the crime and the confrontation, we again see
there was testimony that Cunningham called 9-1-1 after the incident and that police arrived at
approximately 10:00 p.m. Sergeant Takemoto arrived at 833 Edgecumbe at approximately 10:45
p.m., after which he called Cunningham and told him to come to 833 Edgecumbe for the show-
up. Thus it appears that the on-the-scene identification was conducted within approximately one
hour of the incident. As in Libbett, the on-the-scene identification in the instant case was
conducted as promptly as possible and while the attackers’ appearance was still fresh in
Cunningham’s mind. See Libbett, 251 Mich App at 362-363; see also See Kurylczyk, 443 Mich
at 306 (opinion by GRIFFIN, J.).




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         Furthermore, there is no evidence that the police made any suggestive remarks to
Cunningham or otherwise influenced his identification of defendant. See Libbett, 251 Mich App
at 363. Defendant appears to mischaracterize the evidence by claiming that defendant was
singled out; the evidence at trial showed that the suspects were shown to Cunningham one after
the other, but there is no evidence that any one of these individuals was somehow made to appear
more likely to have been involved in the incident than the rest of the individuals. It does not
appear that Cunningham was “confronted with only a single individual” as defendant claims.
Rather, Cunningham was confronted with multiple individuals, one after the other. In other
words, the instant case did not involve circumstances of the type that were present in Gray. See
Gray, 457 Mich at 111-112. There is also no evidence of any improper purpose or action on the
part of law enforcement in relation to the on-the-scene identification in this case. While it was
late at night and dark outside, there was testimony that the police used the porch light and a
flashlight to allow Cunningham to see the suspects. Moreover, the fact that the attackers
reportedly went into the house does not mean that every person found inside the house was
involved in the assault. Thus, the prompt on-the-scene identification was reasonable and allowed
the police to immediately decide whether there was probable cause to arrest the suspects for the
crime or just victims of circumstance. Libbett, 251 Mich App 361. In light of the totality of
circumstances, this on-the-scene identification procedure was not “so impermissibly suggestive
that it led to a substantial likelihood of misidentification.” Hornsby, 251 Mich App at 466.

        To the extent that defendant challenges the evidence of Cooper’s pretrial, out-of-court
identification, we find this argument without merit. Defendant appears to argue that evidence of
Cooper’s identification of defendant during a corporeal line-up that occurred on January 28,
2015, should not have been admitted because “she was not one hundred percent sure of the
identification and did not bother to tell police about the robbery until three months later after her
own arrest.” Defendant does not make any argument that the line-up procedure itself was
impermissibly suggestive. Rather, defendant’s claim is really directed at the credibility or weight
of Cooper’s identification testimony rather than its admissibility. “The credibility of
identification testimony is a question for the trier of fact that we do not resolve anew.” Davis,
241 Mich App at 700.

        Because defendant failed to establish that the pretrial identification procedures were
impermissibly suggestive, he was not entitled to a hearing to determine whether an independent
basis for an in-court identification existed. See Kurylczyk, 443 Mich at 303 (opinion by GRIFFIN,
J.); People v Barclay, 208 Mich App 670, 675; 528 NW2d 842 (1995). And, because the
identification procedures were not impermissibly suggestive, defendant has failed to demonstrate
that plain error occurred. Carines, 460 Mich at 763.

        Defendant argues in the alternative that he was denied the effective assistance of counsel
because defense counsel failed to object to the admission of the testimony regarding the out-of-
court identification procedures and failed to have this evidence suppressed. Defendant did not
move the trial court for a new trial or an evidentiary hearing, so our review is limited to the
existing record. People v Musser, 259 Mich App 215, 220-221; 673 NW2d 800 (2003). “To
establish a claim of ineffective assistance of counsel, a defendant must show that counsel’s
performance was deficient and that there is a reasonable probability that, but for the deficiency,
the fact-finder would not have convicted the defendant.” Id. at 221. As discussed above, the
identification procedures in this case were not impermissibly suggestive. Thus, any objection

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would not have been successful. “Counsel is not ineffective for failing to make a futile
objection.” People v Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004).

       Next, defendant argues in his Standard 4 brief that the trial court incorrectly assessed 25
points for offense variable (OV) 13, MCL 777.43(1)(b), because the jury never found and
defendant never admitted that he was involved in gang-related activity. We disagree.

        Defendant did not object to the scoring of OV 13 in the trial court, nor did he raise this
issue in a motion for resentencing or a motion to remand. Therefore, this issue is unpreserved.
People v Kimble, 470 Mich 305, 311; 684 NW2d 669 (2004). Consequently, our review is
limited to plain error affecting defendant’s substantial rights. People v Lockridge, 498 Mich 358,
392, 394; 870 NW2d 502 (2015).

        Issues that involve “the proper interpretation and application of the legislative sentencing
guidelines, MCL 777.11 et seq. . . . are legal questions that this Court reviews de novo.” People
v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004). On an appeal of a sentence under the
guidelines, “the circuit court’s factual determinations are reviewed for clear error and must be
supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d
340 (2013). “Whether the facts, as found, are adequate to satisfy the scoring conditions
prescribed by statute, i.e., the application of the facts to the law, is a question of statutory
interpretation, which an appellate court reviews de novo.” Id.

         The instructions for scoring OV 13 concerning “continuing pattern of criminal behavior”
are found in MCL 777.43. A score of 25 points is proper where “[t]he offense was part of a
pattern of felonious criminal activity directly related to causing, encouraging, recruiting,
soliciting, or coercing membership in a gang or communicating a threat with intent to deter,
punish, or retaliate against another for withdrawing from a gang[.]” MCL 777.43(1)(b). A score
of 25 points is also proper where “[t]he offense was part of a pattern of felonious criminal
activity involving 3 or more crimes against a person[.]” MCL 777.43(1)(c).

       “The sentencing offense is the crime of which the defendant has been convicted and for
which he or she is being sentenced.” People v McGraw, 484 Mich 120, 122 n 3; 771 NW2d 655
(2009). For purposes of assessing points under OV 13, all crimes within a 5-year period that
includes the sentencing offense “shall be counted regardless of whether the offense resulted in a
conviction.” MCL 777.43(2)(a); People v Francisco, 474 Mich 82, 86; 711 NW2d 44 (2006).
The sentencing offense itself is counted. People v Wilkens, 267 Mich App 728, 743; 705 NW2d
728 (2005). “[M]ultiple concurrent offenses arising from the same incident are properly used in
scoring OV 13.” People v Gibbs, 299 Mich App 473, 488; 830 NW2d 821 (2013).

       In this case, the presentence investigation report clearly indicates that defendant was
assessed 25 points for OV 13 pursuant to MCL 777.43(1)(c), not because of gang-related activity
under MCL 777.43(1)(b). Defendant was in fact convicted of four felonies arising out of the
sentencing offenses: two counts of assault with intent to rob while armed, MCL 750.89, and two
counts of felonious assault, MCL 750.82. All four felonies are classified as crimes against a
person. MCL 777.16d. Thus, defendant’s felonious acts “involve[ed] 3 or more crimes against a
person” committed within a five-year period of the sentencing offense, and 25 points were


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properly assessed for OV 13. MCL 777.43(1)(c) & (2)(a); Francisco, 474 Mich at 86. Thus, the
trial court did not err by assessing 25 points for OV 13 where defendant was convicted of

multiple crimes arising out of the same criminal act. Gibbs, 299 Mich App at 487-488 (finding
that 25 points were properly assessed for OV 13 pursuant to MCL 777.43(1)(c) where the
defendant’s two armed robbery convictions and one unarmed robbery conviction all arose out of
a single criminal episode).

       Defendant’s Lockridge claim concerning his OV 13 score is also without merit. In
Lockridge, 498 Mich at 399, the Court held that the Sixth Amendment is violated when a
defendant’s mandatory minimum punishment is increased by “facts beyond those found by the
jury or admitted by the defendant.” Under Lockridge, a defendant who was sentenced on or
before July 29, 2015, is entitled to a remand to the trial court for a determination of whether that
court would have imposed the same sentence but for the mandatory nature of the guidelines if the
defendant can make a threshold showing of plain error and was not subject to an upward
departure. Id. at 397, 399. However, plain error does not exist in cases where “(1) facts
admitted by the defendant and (2) facts found by the jury were sufficient to assess the minimum
number of OV points necessary for the defendant’s score to fall in the cell of the sentencing grid
under which he or she was sentenced,” because there is no prejudice to the defendant under these
circumstances. Id. at 394-395. In such a case, “no further inquiry is required.” Id.

        As previously noted, defendant’s OV 13 score was not based on judicial fact-finding that
defendant’s actions were related to a gang activity. Instead, defendant’s OV 13 score was based
on his four felony crimes against a person of which he was found guilty beyond a reasonable
doubt by a jury. Defendant does not challenge his guidelines scoring on any other grounds.
Thus, the “facts found by the jury were sufficient to assess the minimum number of OV points
necessary for the defendant’s score to fall in the cell of the sentencing grid under which he or she
was sentenced,” and “no further inquiry is required.” Lockridge, 498 Mich at 394-395.
Defendant has failed to make a threshold showing of plain error and is not entitled to any relief
on this ground. Id. at 399.

        Defendant also argues in his Standard 4 brief that he received ineffective assistance of
counsel because defense counsel failed to object to the incorrect scoring of OV 13. This
argument is clearly without merit. As previously discussed, the scoring of OV 13 was correctly
scored without judicially found facts. Any objection would have been unsuccessful. “Counsel is
not ineffective for failing to make [sic] a futile objection.” Thomas, 260 Mich App at 457.

       Finally, defendant also asks this Court, both through appellate counsel and in his
Standard 4 brief, to remand to the trial court for a Ginther1 hearing. But neither appellate
counsel nor defendant submitted any affidavits or made an offer of proof regarding the facts that
would be established at a Ginther hearing. Thus, defendant did not support his request with the
materials necessary for a proper motion to remand. See MCR 7.211(C)(1)(a). Moreover,



1
    People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).


                                                -7-
defendant has failed to show that development of a factual record is required or that a remand is
necessary. Id. Defendant’s request to remand for a Ginther hearing is denied.

       We affirm.

                                                           /s/ David H. Sawyer
                                                           /s/ Jane E. Markey
                                                           /s/ Colleen A. O'Brien




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