                            STATE OF MICHIGAN

                              COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      July 14, 2015
                 Plaintiff-Appellee,
V                                                                     No. 321113
                                                                      Saginaw Circuit Court
JOHN HENRY GRANDERSON,                                                LC No. 13-038964-FC

                 Defendant-Appellant.


Before: O’CONNELL, P.J., and OWENS and M. J. KELLY, JJ.

PER CURIAM.

         Defendant, John Henry Granderson, appeals as of right his convictions, following a jury
trial, of conspiracy to commit murder, MCL 750.157a and MCL 750.316(a), first-degree arson,
MCL 750.72, conspiracy to commit first-degree arson, MCL 570.157a and MCL 750.72,
threatening a witness, MCL 750.122(7)(c), six counts of assault with intent to commit murder,
MCL 750.83, felon in possession of a firearm, MCL 750.224f, and six counts of possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court
sentenced Granderson to serve terms of life imprisonment for conspiracy to commit murder, 17
years and five months’ to 50 years’ imprisonment for conspiracy to commit arson, 20 years and
eight months’ to 60 years’ imprisonment for arson and each assault, seven to 15 years’
imprisonment for witness threatening, two to seven and one-half years’ imprisonment for felon
in possession, and a consecutive term of two years’ imprisonment for his felony-firearm
convictions. We affirm.

                                              I. FACTS

        Jeremy Prince testified that he attended middle school and high school with Granderson,
codefendant Jemarcus Jovon Watkins,1 and Anterio Patton. According to Prince, he attended a
pre-prom party in May 2013. During the party, there was a commotion involving Patton. Phillip
Hudson, a friend of Patton, testified that Patton and Evillis McGee “had a problem with each
other.” According to Prince, someone fired 12 or 13 shots into the crowd during the pre-prom
party, and Ne-Ne McKinley was killed.



1
    This panel is also considering Watkins’s appeal of his convictions for the same offenses.


                                                  -1-
         Patton’s mother testified that she was present at the pre-prom party with Patton.
According to Patton’s mother, she had just given Patton a hug when “the crowd went to backing
up, and I seen some guys with some guns.” The men with guns began shooting. Patton’s sister
testified that she was also at the pre-prom party and saw Watkins, Karon Thomas, and two other
men shoot into the crowd.

       Saginaw City Police Detective Matthew Gerow testified that he investigated the pre-prom
shooting. According to Detective Gerow, McGee and Thomas were charged with murder in
connection with McKinley’s death. Detective Gerow testified that Patton testified at McGee and
Thomas’s preliminary examination. Patton’s mother testified that Patton intended to testify at
the murder trial on July 26, 2013.

       Patton’s home was attacked early in the morning on July 11, 2013. According to Prince,
a friend dropped him off near Patton’s home to meet his ex-girlfriend, who was at Patton’s
house. Patton was not there at the time, but Patton’s family and some friends were present. At
about 12:30 a.m., a van drove by the house. About three minutes later, Prince saw someone
approach the house with something in one hand. Prince yelled, grabbed his ex-girlfriend, and
then heard “the loudest bang I ever heard in my life.” Prince realized that he, his ex-girlfriend,
and the house were on fire. The people outside began shooting at the house.

        Prince extinguished the fire that was on him and then went to retrieve a gun. When he
looked outside, he saw that the front of the house was on fire and Granderson was shooting an
assault-style rifle at the house. Prince tried to get everyone into the house’s basement, but once
there, he realized that his ex-girlfriend was not present. Prince went back upstairs to find her and
saw someone enter the home, carrying a handgun:

       He was like right there on the porch, coming into the door, but I see him, but he’s
       look around like, and I see him. . . . [W]hen we made eye contact, his eyes got
       big, because I was shocked about who I seen.

Prince then testified that the person was Watkins, who ran back outside. Prince found his ex-
girlfriend and went into the basement to wait for police and firefighters to arrive. Prince
believed Granderson and Watkins had set the house on fire and then waited for the occupants to
come outside so that they could “pick [them] off.”

        According to Hudson, who was also in Patton’s home at the time of the arson, at least
three people were shooting into the home. Hudson testified that he believed that Granderson was
one of those people, but he was not entirely certain of his identification because he was under the
influence of drugs at the time.

       Detective Gerow testified that he also investigated the arson. According to Detective
Gerow, he visited Prince in the hospital shortly after the arson. Prince was initially hesitant to
speak with him, but Prince eventually identified Granderson and Watkins, and he seemed “100
percent positive about his identification.”

       Prince testified that he told officers that he thought Vanity Mims was driving the van, but
he was not certain. According to Prince, “[t]he reason I brought her up was because I know that
Vanity was . . . associated with [Watkins].” Prince also testified that the word “on the street”
                                                -2-
was that Mims was going to “come to court and testify and say that [Watkins] was with her.”
Officer Coleman testified that he interviewed Prince, who told him that Mims “was going to
come into court and attempt to be an alibi witness . . . on behalf of [Granderson and Watkins].”
Mims did not testify at the trial.

       Granderson testified that he was not affiliated with any gang, but he was “familiar with
the East Side because I stay over there.” According to Granderson, after he finished a term of
incarceration in December 2011, he kept to himself and did not associate with his old friends.
Granderson was especially reluctant to associate with people who carried weapons. In rebuttal,
Saginaw Police Department Officer Erik Skabardis testified that on June 12, 2012, he
encountered Granderson among East Side people “hanging out” in a vacant lot. He discovered
“a bag full of guns” not more than 30 feet from the individuals.

       Granderson also testified that on the night of the arson, he was at his sister’s home in the
Sheridan Park neighborhood. Granderson’s sister Brittany Houston testified that Granderson
stayed with her and her friend, Ja’Quise O’Daniels, on July 11, 2013. Brittany Houston testified
that Granderson watched O’Daniels’s one-year-old child while O’Daniels went to Wal-Mart
from about midnight to 1:40 a.m. Granderson’s sister Brandy Houston also testified that
Granderson was in the home at about 1:30 a.m. when she woke up to use the bathroom, and that
she knew that O’Daniels had gone to Wal-Mart that evening because she noticed that there were
new groceries in the house.

        O’Daniels testified that Granderson watched her one-year-old child while she went to
Wal-Mart on the night of July 11, 2013. Granderson was still present and awake when she
returned from the store. However, on cross-examination, O’Daniels acknowledged that the card
she used to purchase groceries showed a purchase at Wal-Mart on July 20, 2013, at about 1:00
a.m., but no purchases on July 11, 2013. O’Daniels admitted that she had made a mistake about
the date on which she purchased groceries.

       The jury found Granderson guilty of the crimes previously described.

                                  II. EVIDENTIARY ISSUES

                                 A. STANDARD OF REVIEW

       This Court reviews for an abuse of discretion preserved challenges to the trial court’s
evidentiary rulings. People v Duncan, 494 Mich 713, 722; 835 NW2d 399 (2013). The trial
court abuses its discretion when its outcome falls outside the range of principled outcomes.
People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). We review de novo the
preliminary questions of law surrounding the admission of evidence. Duncan, 494 Mich at 723.

        However, a defendant must timely and specifically challenge an issue before the trial
court to preserve it for this Court’s review. People v Unger, 278 Mich App 210, 234-235; 749
NW2d 272 (2008). In this case, Granderson challenged the admission of the photograph of
McKinley’s body, the photograph of him holding an assault rifle, the photographs of him with
members of the East Side gang, and the hearsay evidence regarding alibi fabrication.
Accordingly, these issues are preserved. However, Granderson did not specifically challenge the
admission of the pre-prom shooting res gestae evidence, Officer Skabardis’s rebuttal testimony,
                                                -3-
judicial questioning, prosecutorial misconduct, the propriety of his joint trial, or the effectiveness
of defense counsel. These issues are not preserved.

       We review unpreserved issues for plain error affecting a party’s substantial rights.
People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). An error is plain if it is clear or
obvious, and the error affected the defendant’s substantial rights if it affected the outcome of the
lower court proceedings. Id. Regarding issues of judicial bias, we relax these standards,
recognizing that a party may be reluctant to challenge a trial judge’s actions on the bench. See
People v Moore, 161 Mich App 615, 629-620; 411 NW2d 797 (1987).

                                B. PHOTOGRAPHIC EVIDENCE

        Granderson raises several challenges to photographs that the prosecutor admitted at trial.
First, he challenges the photograph of McKinley’s body following the pre-prom shooting,
contending that it was unnecessarily gruesome and prejudicial. We disagree.

       The Michigan and United States Constitutions provide that no person shall be deprived of
property without due process of law. US Const, Am XIV; Const 1963, art 1, § 17. Criminal
prosecutions must comply with “ ‘prevailing notions of fundamental fairness.’ ” People v
Anstey, 476 Mich 436, 460; 719 NW2d 579 (2006), quoting Pennsylvania v Ritchie, 480 US 39,
56; 107 S Ct 989; 94 L Ed 2d 40 (1987). The improper admission of evidence may deprive a
defendant of due process if it “infused the trial with unfairness.” Estelle v McGuire, 502 US 62,
75; 112 S Ct 475; 116 L Ed 2d 385 (1991) (quotation marks and citation omitted).

        The trial court may only admit relevant evidence. MRE 402. Evidence may be relevant
even when it does not pertain to an element of an offense, as long as it pertains to a matter in
controversy. People v McGhee, 268 Mich App 600, 637; 709 NW2d 595 (2005). The res gestae
of a crime includes the facts and circumstances surrounding its commission. People v Sholl, 453
Mich 730, 742; 556 NW2d 851 (1996); US v Hardy, 228 F3d 745, 748 (CA 6, 2000). The res
gestae of an offense is generally relevant and admissible. Sholl, 453 Mich at 741; Hardy, 228
F3d at 748.

        But MRE 403 provides that, even if evidence is relevant, the trial court may not admit it
if the danger of its prejudicial effect substantially outweighs its probative value. This occurs
when the evidence is only marginally probative and there is a danger that the trier of fact may
give it undue or preemptive weight. People v Blackston, 481 Mich 451, 462; 751 NW2d 408
(2008).

        Under this rubric, the trial court must weigh the probative value and prejudicial effect of
gruesome photographs before admitting them. People v Mills, 450 Mich 61, 76; 537 NW2d 909
(2008). The trial court may not admit such photographs if they “serve the purpose solely of
inflaming the minds of the jurors and prejudicing them against the accused,” but it may admit
photographs that are relevant and material. Id. at 77. However, photographs are not rendered
inadmissible merely because they are gruesome, People v Eddington, 387 Mich 551, 562-563;
198 NW2d 297 (1972), or because a witness “can orally testify about the information contained
in the photograph. Mills, 450 Mich at 76.



                                                 -4-
        We are not convinced that the trial court’s decision to admit the photograph of
McKinley’s body fell outside the range of principled outcomes. In this case, the prosecution
admitted a single photograph of McKinley’s body, lying on the ground in what appears to be a
parking lot. Notably, the prosecution sought to admit two photographs, but the trial court ruled
that only one photograph was required for the prosecution’s purpose. The trial court ruled that
the second photograph did not have sufficient probative value to be relevant. It is clear from the
record that the trial court considered the probative value and prejudicial effect of the photographs
before ruling on their admissibility. Further, the photograph did not serve the sole purpose of
inflaming the jury. The prosecution’s theory was that Granderson’s motive to the crime was to
intimidate witnesses from testifying in McGee’s trial involving McKinley’s murder, and the pre-
prom shooting was part of the res gestae of the arson offense. Because the photograph was
otherwise relevant, the prosecution did not need to limit its presentation to oral testimony.

        We conclude that the trial court did not abuse its discretion by admitting the photograph.
To the extent that Granderson contends that the prosecution’s use of this photograph constituted
misconduct, we conclude that he has abandoned that unpreserved issue by failing to include it in
his statement of questions presented and by offering only a cursory analysis. See MCR
7.212(C)(5); People v Matuszak, 263 Mich App 42, 59; 687 NW2d 342 (2004).

       Second, Granderson contends that the prosecution improperly admitted a photograph of
him holding an assault rifle because it allowed the jury to make unfair inferences. We disagree.

        Generally, MRE 404(b)(1) prohibits a party from introducing evidence of another party’s
other crimes, wrongs, or acts to prove that person’s character or propensity to engage in that type
of action. Such evidence

       may, however, be admissible for other purposes, such as proof of motive,
       opportunity, intent, preparation, scheme, plan, or system in doing an act,
       knowledge, identity, or absence of mistake or accident when the same is
       material. . . . [MRE 404(b)(1).]

MRE 404(b)(1) is a rule of inclusion, not exclusion. People v VanderVliet, 444 Mich 52, 64; 508
NW2d 114 (1993).

       In this case, Shawntanise Conway testified that she was in the Sheridan Park area early
on the morning of July 11, 2013, when she saw three men. According to Conway, one had
“some fire” in one of his hands, and a different man had a long black object that “was a gun, I
guess.” When asked to describe the gun, Conway said it was “a big gun.”

        During Conway’s testimony, the prosecution sought to admit a photograph of Granderson
holding an assault-style rifle. Defense counsel challenged the photograph on the ground that the
photograph was from another case in 2009. The prosecutor argued that the purpose of the
photograph was “to demonstrate for the jury the type of weapon that was used visually as well as
[Granderson’s] apparent familiarity with that type of a weapon, and also goes to issues of
identification of the [Granderson] as well along with his . . . I guess, penchant for having that
type of weapon[.]” The trial court ruled that the photograph was admissible. After the



                                                -5-
photograph was admitted, Conway testified that the gun she saw on the night of the arson was
similar to the one in the photograph, except a different color.

        We conclude that the trial court did not abuse its discretion by admitting the photograph
of Granderson holding an assault-style rifle. In this case, the photograph was not admitted solely
to establish propensity or a bad act. Rather, the prosecution also sought to admit the photograph
for at least two proper purposes: an attempt to establish Granderson’s identity and to assisting
Conway in describing what she saw. The trial court’s decision to admit the photograph did not
fall outside the reasonable range of outcomes in this case. Further, to the extent that Granderson
contends that admission of this photograph constituted prosecutorial misconduct, we reject this
argument. The prosecution’s good-faith effort to admit relevant evidence is not misconduct.
People v Abraham, 256 Mich App 265, 278; 662 NW2d 836 (2003).

       Third, Granderson contends that photographs of him with members of the East Side gang
improperly implied guilt by association, in violation of the Michigan Supreme Court’s decision
in People v Bynum, 496 Mich 610; 852 NW2d 570 (2014), and therefore denied him a fair trial.
We disagree.

        In Bynum, the Michigan Supreme Court considered the relevance of expert testimony
evidence regarding gangs, gang membership, and gang culture. Id. at 615. It concluded that the
trial court may admit expert testimony when there is “evidence that the crime at issue is gang-
related,” but that an expert “may not use a defendant’s gang membership to prove specific
instances of conduct in conformity with gang membership . . . .” Id. at 615, 635-636.

       We reject this argument because this case is highly distinguishable from Bynum. This
case involved no expert testimony regarding gang affiliation, only lay witness testimony about
Granderson’s associations. There was extensive evidence that the crime at issue in this case was
gang-related—indeed, the res gestae evidence established that the arson was part of a witness
intimidation attempt regarding a gang-related murder. Finally, the evidence was not used to
attempt to show that Granderson’s conduct conformed to general gang-related conduct.

         Finally, while Granderson contends that these photographs were “clearly” unfairly
prejudicial, Granderson did not challenge the relative weight of the probative value and
prejudicial effect of the photographs below. It is particularly important that the appellant
preserve challenges to the relevance of evidence under MRE 403 because the trial court has the
best opportunity to contemporaneously assess the relative weight of the evidence’s probative
value and prejudicial effect. Blackston, 481 Mich at 462. However, we will briefly explain why
the trial court did not plainly err by admitting the photographs.

        A person’s motive to commit a crime may be highly relevant. People v Fisher, 449 Mich
441, 453; 537 NW2d 577 (1995). Additionally, evidence that affects the credibility of a witness
is also highly relevant. People v King, 297 Mich App 465, 476-477; 824 NW2d 258 (2012).
The fact that evidence is damaging does not make it unfairly prejudicial. Mills, 450 Mich at 75.
Evidence is unfairly prejudicial when evidence is only marginally probative, but there is a danger
that the trier of fact may give it undue or preemptive weight. Blackston, 481 Mich at 462.




                                               -6-
       In this case, the gang-related photographs established Granderson’s relationship to people
with whom he claimed he was no longer affiliated. By establishing this relationship, the
photographs also established the motive for the crime. The photographs were thus highly
relevant and, since there is also no indication that the jury would have given this evidence undue
or preemptive weight, they were not overly prejudicial. The trial court did not plainly err by
admitting the evidence.

                                     C. PRIOR BAD ACTS

       Granderson contends that the trial court erred by admitting bad acts evidence of the pre-
prom shooting because he did not participate in the shooting. We disagree.

        MRE 404(b)(1) prohibits a party from introducing evidence of another party’s other
crimes, wrongs, or acts to prove that person’s character or propensity to engage in that type of
action. But Granderson recognizes that he was not connected to the pre-prom shooting incident.
It was simply not another crime, wrong, or act of Granderson’s for the purposes of MRE 404(b),
and the prosecution did not introduce it to attempt to establish Granderson’s character. Rather,
as previously discussed, it was part of the offense’s res gestae. Granderson’s attempt to
characterize the evidence as bad acts evidence is incorrect.

                                  D. HEARSAY TESTIMONY

        Granderson contends that the improper admission of hearsay testimony, specifically
statements including Prince’s statement regarding rumors that Granderson was fabricating an
alibi with Mims, violated his constitutional rights to confrontation and a fair trial. We disagree.

        Hearsay is “a statement, other than the one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).
Hearsay is generally inadmissible, unless it is subject to a hearsay exception. MRE 802;
Duncan, 494 Mich at 724. The improper admission of hearsay may implicate the defendant’s
state and federal constitutional rights. People v Dendel (On Second Remand), 289 Mich App
445, 452-453; 797 NW2d 645 (2010). See Crawford v Washington, 541 US 36, 50-51; 124 S Ct
1354; 158 L Ed 2d 177 (2004).

         In this case, Prince testified that he told officers that he thought Mims was driving the
van, and rumors indicated that Mims would come to court to provide an alibi for Granderson and
Watkins. The matter asserted was that Granderson was fabricating an alibi with Mims. Mims
did not offer an alibi that Prince’s testimony about rumors on the street could prove or disprove.
Therefore, the evidence was not offered to establish the truth of the matter asserted in the alleged
hearsay statement—the truth or falsity of Mims’s supposed alibi. Instead, Prince himself
testified that he told officers this information because Mims had an established relationship with
Granderson and Watkins. We conclude that Granderson has simply not established that this
evidence was hearsay as it related to the fabrication of an alibi.

                                 E. REBUTTAL TESTIMONY




                                                -7-
       Granderson contends that the trial court improperly admitted Officer Skabardis’s rebuttal
testimony that he discovered Granderson in a vacant lot with members of the East Side gang and
a bag of guns on June 12, 2012. We disagree.

        “Rebuttal evidence is admissible to contradict, repel, explain or disprove evidence
produced by the other party and tending directly to weaken or impeach the same.” People v
Figgures, 451 Mich 390, 399; 547 NW2d 673 (1996) (quotation marks and citations omitted).
Evidence is proper as rebuttal evidence if it is responsive to evidence introduced or theories
developed in the other party’s case in chief. Id. at 399. However, the trial court may abuse its
discretion when it allows rebuttal evidence on secondary issues. Id. at 398. Evidence that
affects the credibility of a witness is relevant. King, 297 Mich App at 476-477.

         In this case, Granderson testified that he stopped associating with old friends and people
who had or used weapons after his release from prison in December 2011. Granderson thus
placed his associations directly at issue. That he was found in July 2012 associating with the
individuals that were his old friends, who were in close proximity to a bag of guns, tended to
contradict and disprove Granderson’s statements about his associations. The rebuttal evidence
was highly relevant because it directly pertained to Granderson’s credibility. We conclude that
the trial court did not plainly err by admitting this evidence.

                                III. JUDICIAL QUESTIONING

       Granderson contends that the trial court’s decision to question his alibi witnesses
deprived him of a fair and impartial trial. We disagree.

         Generally, this Court reviews for an abuse of discretion the trial court’s conduct during a
trial. See People v Romano, 181 Mich App 204, 220; 448 NW2d 795 (1989). As discussed
above, due process requires that the defendant receive a fundamentally fair trial. Anstey, 476
Mich at 460. The trial court may question a witness in order to clarify the witness’s testimony or
elicit additional information. People v Cheeks, 216 Mich App 470, 480; 549 NW2d 584 (1996).
However, the trial court “must exercise caution and restraint to ensure that its questions are not
intimidating, argumentative, unfair, or partial.” Id.

       In part, the trial court questioned Brittany Huston as follows:

               THE COURT: And you knew he couldn’t have done it is what you’re
       telling us because he was at the house sleeping?

               THE WITNESS: Correct. Well, he was awake. He had awaken [sic].

               THE COURT: Did you go down and tell the police that?

               THE WITNESS: No, I didn’t.

               THE COURT: Why not?

               THE WITNESS: I didn’t know that I was supposed to.


                                                -8-
               THE COURT: Okay. I don’t have any further questions.

The trial court also questioned Brandy Houston as follows:

               THE COURT: Why wouldn’t you go to the police when you . . . found
       out that [Granderson] was charged with crimes, and you knew he was in the
       apartment that night? You’re telling us he couldn’t have been there because he
       was in the apartment, correct?

               THE WITNESS: No.

               THE COURT: Is that a correct statement?

               THE WITNESS: Yes.

              THE COURT: Okay. Why wouldn’t you run down to the police the next
       day and be banging on Mr. Gerow’s door?

               THE WITNESS: I don’t know.

        Reviewing this questioning in context with the trial court’s additional questioning, we
conclude that the trial court’s questioning was proper. The questions and manner of questioning
did not demonstrate partiality. Only Brandy Houston’s answer was even potentially damaging to
Granderson’s case, as the jury could have found it entirely plausible that Brittany Houston did
not know that she was supposed to speak to Detective Gerow. Further, we will not view Brandy
Houston’s answer in hindsight. When the trial court asked Brandy Houston why she did not
speak to the police, her answer could have been neutral or positive to Granderson. For instance,
she may have testified that she was frightened of speaking to the police, particularly in light of
the attack on Patton’s home, or that she had in fact attempted to speak to Detective Gerow.

        Even more importantly, we are not convinced that the trial court’s questioning prejudiced
Granderson by affecting the outcome of his trial. In this case, Granderson’s alibi hinged on
watching O’Daniels’s child while she shopped at Wal-Mart. Both Brittany and Brandy Houston
specifically recalled that O’Daniels had gone to Wal-Mart early in the morning on that day that
Granderson was watching the child. However, O’Daniels admitted that she was mistaken about
the date on which she went to Wal-Mart. Accordingly, we are not convinced that the trial court’s
questioning influenced the jury in any way, much less to the detriment of Granderson’s case.

                           IV. SUFFICIENCY OF THE EVIDENCE

                                 A. STANDARD OF REVIEW

        A claim that the evidence was insufficient to convict a defendant invokes that defendant’s
constitutional right to due process of law. People v Wolfe, 440 Mich 508, 514; 489 NW2d 748
(1992); In re Winship, 397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970). Thus, this Court
reviews de novo a defendant’s challenge to the sufficiency of the evidence supporting his or her
conviction. People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). We review the
evidence in a light most favorable to the prosecution to determine whether a rational trier of fact

                                                -9-
could find that the prosecution proved the crime’s elements beyond a reasonable doubt. People v
Reese, 491 Mich 127, 139; 815 NW2d 85 (2012).

                                         B. CONSPIRACY

       Granderson contends that the prosecution presented insufficient evidence to support his
convictions of conspiracy to commit arson and conspiracy to commit murder because there was
no evidence of an agreement between Granderson and the other participants. We disagree.

        “Any person who conspires together with 1 or more persons to commit an offense
prohibited by law . . . is guilty of the crime of conspiracy . . . .” MCL 750.157a. Conspiracy
requires a defendant to have “both the intent to combine with others and the intent to accomplish
the illegal objective.” People v Mass, 464 Mich 615, 629; 628 NW2d 540 (2001).

        “The gist of the offense of conspiracy lies in the unlawful agreement.” People v Carter,
415 Mich 558, 568; 330 NW2d 314 (1982), overruled in part on other grounds by People v
Robideau, 419 Mich 458; 355 NW2d 592 (1984) (quotation marks and citation omitted). But the
prosecution does not need to provide direct proof of an agreement. Id. “It is sufficient if the
circumstances, acts, and conduct of the parties establish an agreement in fact.” Id. (quotation
marks and citation omitted). Circumstantial evidence and reasonable inferences arising from
that evidence can sufficiently prove the elements of a crime. People v Kanaan, 278 Mich App
594, 622; 751 NW2d 57 (2008). Further, jurors may use common sense and everyday
experience to evaluate evidence. People v Simon, 189 Mich App 565, 568; 473 NW2d 785
(1991).

        In this case, the testimony established that Granderson, Watkins, and at least one other
person arrived at Patton’s house, armed with weapons. Prince testified that one of the men had
something in his hand, which he threw at the house. The house immediately caught on fire, and
then the other two men—including Granderson, who was armed with an assault-style weapon—
shot at the house. Considering this circumstantial evidence and allowing the jury to apply
common sense and every day experience to it, a rational jury could find beyond a reasonable
doubt that Granderson and the other men involved in the arson intended to combine together for
unlawful purposes. It is incredibly unlikely, in the absence of a prior agreement, three armed
men would independently arrive at Patton’s house at the same time of the morning and act in
concert to set the house on fire and shoot at it. We conclude that the prosecution presented
sufficient evidence of an agreement between the participants in the arson and shooting.

                    C. ASSAULT WITH INTENT TO COMMIT MURDER

        Granderson also contends that insufficient evidence supported his convictions of assault
with intent to commit murder because there was no evidence that he intended to kill, rather than
simply frighten, the occupants of the house. We disagree.

        “The elements of assault with intent to commit murder are: (1) an assault, (2) with the
specific intent to commit murder, (3) which, if successful, would make the killing a murder.”
People v Rockwell, 188 Mich App 405, 411; 470 NW2d 673 (1991). The defendant’s intent
must be to specifically kill the victim; recklessness or the intent to inflict great bodily harm is not
sufficient. People v Cochran, 155 Mich App 191, 193-194; 399 NW2d 44 (1986). Again, we
                                                 -10-
note that circumstantial evidence may provide sufficient proof of a defendant’s intent. Kanaan,
278 Mich App at 622.

        In this case, Granderson was part of a group of men who set fire to a home and shot at its
occupants. Prince testified that it appeared to him that the assailants wanted to set fire to the
home and then pick the occupants off one by one as they attempted to escape. The jury could
reasonably infer from the evidence that Granderson’s actions were beyond reckless and that he
specifically intended to kill the occupants of the home, rather than merely frighten them. We
conclude that the prosecution presented sufficient evidence to support Granderson’s assault
convictions.

            V. SEVERANCE AND INEFFECTIVE ASSISTANCE OF COUNSEL

       Next, Granderson contends that his joint trial with codefendant Watkins was unduly
prejudicial, and the trial court erred when it failed to order separate trials. We disagree.

       “[T]he interests of justice and judicial economy support joint trials, and a defendant does
not have the absolute right to a separate trial.” People v Etheridge, 196 Mich App 43, 52; 492
NW2d 490 (1992). However, MCR 6.120(C) requires the trial court to sever charges on
unrelated offenses for separate trials if the defendant moves for separate trials. MCR 6.120(B)
provides that offenses are related if they are based on

               (a) the same conduct or transaction, or

               (b) a series of connected acts, or

               (c) a series of acts constituting parts of a single scheme or plan.

        The trial court may also permissively order separate trials if severance “will promote
fairness to the parties and a fair determination of the guilt or innocence of one or more of the
defendants.” MCR 6.210(D). Before permissively ordering severance, the trial court should
consider “the timeliness of the motion, the drain on the parties’ resources, the potential for
confusion or prejudice stemming from either the number of defendants or the complexity or
nature of the evidence, the convenience of witnesses, and the parties’ readiness for trial.” MCR
6.210(D).

         “Joinder of . . . other crimes cannot prejudice the defendant more than he would have
been by the admissibility of the other evidence in a separate trial.” People v Williams, 483 Mich
226, 237; 769 NW2d 605 (2009), quoting United States v Harris, 635 F2d 526, 527 (CA 6, 1980)
(alteration and quotation marks omitted). A defendant is also prejudiced by a joint trial when it
restricts the defendant’s ability to present a defense. People v Hana, 447 Mich 325, 360; 524
NW2d 682, amended 447 Mich 1203 (1994). A defendant’s ability to present a defense is
restricted when codefendants present mutually antagonistic defenses. Id. at 349.

         We conclude that the trial court did not err by failing to sua sponte sever Granderson’s
trial from codefendant Watkins’s trial. In this case, Granderson and Watkins did not present
mutually antagonistic defenses: Granderson’s theory was that he was not present, and Watkins’s
theory was that he was misidentified as being present. Neither defense implicated the other

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defendant. Further, while Granderson baldly asserts that the jury heard evidence it would not
have heard if Watkins’s trial had been separate, Granderson does not articulate why certain
evidence would not have been admissible at his separate trial. Granderson may not simply state
a position, fail to support it, and expect that this Court create an argument and reverse on that
basis. See Matuszak, 263 Mich App at 59.

        Finally, Granderson contends that defense counsel provided ineffective assistance by
failing to advocate for separate trials. We disagree.

       A criminal defendant has the fundamental right to effective assistance of counsel. US
Const, Am VI; Const 1963, art 1, § 20; United States v Cronic, 466 US 648, 654; 104 S Ct 2039;
80 L Ed 2d 657 (1984). However, a defendant must move the trial court for a new trial or
evidentiary hearing to preserve the defendant’s claim that his counsel was ineffective. People v
Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). When the trial court has not conducted a
hearing to determine whether a defendant’s counsel was ineffective, our review is limited to
mistakes apparent from the record. People v Gioglio (On Remand), 296 Mich App 12, 20; 815
NW2d 589 (2012).

        To prove that his defense counsel was not effective, the defendant must show that (1)
defense counsel’s performance fell below an objective standard of reasonableness, and (2) there
is a reasonable probability that counsel’s deficient performance prejudiced the defendant.
Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v
Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). The defendant must overcome the
strong presumption that defense counsel’s performance constituted sound trial strategy.
Strickland, 466 US at 690; Matuszak, 263 Mich App at 58. When considering an unpreserved
claim of ineffective assistance of counsel, we must consider the possible reasons for counsel’s
actions. People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012); Cullen v Pinholster, 563
US ___, ___; 131 S Ct 1388, 1407; 179 L Ed 2d 557, 578 (2011). A defendant was prejudiced
if, but for defense counsel’s errors, the result of the proceeding would have been different.
Pickens, 446 Mich at 312.

        We conclude that Granderson has not shown that defense counsel was ineffective for
failing to request separate trials. In this case, both defendants were involved in the same criminal
transaction, so mandatory severance was not required, and there is no indication that the trial
court would have permissively ordered separate trials. This complex case involved dozens of
exhibits and several days of testimony. Further, trial counsel may have reasonably believed that
a joint trial would be beneficial to Granderson. Granderson and Watkins were not presenting
antagonistic defenses—to the contrary, if the jury believed Watkins’s misidentification theory, it
also could have acquitted Granderson. We are not convinced that trial counsel’s decision not to
request separate trials was unreasonable, nor are we convinced that it would have prejudiced
Granderson. As discussed above, Granderson has not demonstrated that separate trials would
have resulted in the presentation of less, or less prejudicial, evidence.

                                       VI. CONCLUSION

     Though Granderson raises a litany of issues on appeal, none of his assertions have merit.
We conclude that sufficient evidence supported Granderson’s convictions and that the trial

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court’s evidentiary rulings were not an abuse of discretion. We also reject the remainder of
Granderson’s issues for the reasons already stated.

       We affirm.

                                                        /s/ Peter D. O’Connell
                                                        /s/ Donald S. Owens




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