Opinion
349737
10-28-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. WILLIAM RANDEL WILBOURN-LITTLE, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court LC No. 2018-009045-01-FC
Before: Murray, C.J., and Jansen, and, Riordan, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of three counts of first-degree murder, MCL 750.316(1)(a); felon in possession of a firearm (felon-in-possession), MCL 750.224(F); and four counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b(2). Defendant was sentenced to life in prison without the opportunity for parole for each of his first-degree murder convictions, 33 months to 5 years' imprisonment for his felon-in-possession conviction, and 5 years' imprisonment for each of his felony-firearm convictions. On appeal, defendant argues (1) there was insufficient identification evidence to support his convictions; (2) trial counsel was ineffective for failing to call additional alibi witnesses, failing to call any rebuttal expert witnesses, and failing to effectively cross-examine eyewitnesses at trial; and (3) the trial court erred in admitting the highly prejudicial statement from one of the victim's at trial. We affirm defendant's convictions.
I. FACTS AND PROCEEDINGS
This case arises from a shooting incident, which resulted in the death of three victims: Deshawn Gadson, Trevaughn Anthony, and Rashaun Harrington.
On September 8, 2018, at about 11:00 p.m., Maurice Jones, Micah Pittman, and the three victims went to a White Castle restaurant on Livernois Avenue in Detroit. The group drove to the White Castle in two separate vehicles: Gadson and Pittman in a car and Anthony, Harrington, and Jones in a pickup truck. When they arrived, a White Castle employee unlocked the doors and allowed the victims and Jones to go inside to order food while Pittman waited in the car. Shortly thereafter, Pittman saw Tamarrian Brassel, who was known to be friends with defendant, driving a black car around the outside of the White Castle. Pittman called Brassel on her cellphone, had a conversation for less than one minute, and then hung up and tried to sleep. Meanwhile, inside the White Castle, Jones stated the victims were talking about "ops riding past and cars riding back and forth[, ]" meaning "opponents or people they don't like." Jones's food order was completed first, so he left the White Castle and went to his pickup truck while the victims waited inside. A few minutes later, Pittman saw two individuals, a taller person with a "high-powered" long gun and a shorter person with a handgun, at the side doors of the White Castle. Similarly, Jones saw three individuals, from his vehicle, which included a taller person with an "assault rifle" and a medium and short person each with handguns, outside the White Castle. Pittman and Jones testified that the shooters wore masks and the taller shooter wore a black shirt and pants. Jones and Pittman then heard multiple gunshots. When police arrived, Pittman identified defendant, Brassel, Farrad Anderson, and Courvoisier Jackson as being involved in the shooting from still photographs of video surveillance footage.
Pittman did not know Anderson's name but identified him to police as "Bleak."
Pittman did not know Jackson's name but identified him to police as a known associate of defendant.
Video surveillance footage was recovered from several cameras around the White Castle building and a Valero gas station, about 60 yards from the White Castle. Michigan State Police Detective Mark Lambert reviewed the videos, revealing about two hours before the shooting, a blue Ford Taurus and black Toyota Camry pulled into the gas station. A few minutes later, a person, identified by Detective Lambert as defendant, exited the Taurus, walked to a silver Saturn Vue parked nearby, and obtained a sweatshirt and what appeared to be an assault rifle. The Taurus then left and returned to the gas station several times. At about 12:15 a.m., the Taurus left the gas station, driving toward the White Castle and followed by the Camry. The shooting then occurred at 12:19 a.m. After the incident, police officers discovered the Taurus near the White Castle, and found it to be registered to Anderson's mother. The police then found the Camry at Brassel's residence, and ultimately tracked and recovered it near Anderson's residence. The Vue was found at Jackson's residence and a black mask was in its trunk.
Outside the White Castle, the police recovered several 7.62 x 39, 40-caliber, and 45-caliber bullet casings, a fired bullet, and lead bullet fragments. Inside the White Castle, police recovered a 45-caliber handgun, 40-caliber handgun, 9-milimeter handgun, 40-caliber S&P, R&P, and Smith and Wesson bullet casings, 7.62 x 39 bullet casings, a 40-caliber magazine, and silver and copper bullet fragments. Additionally, a search warrant executed at Jackson's residence recovered a 9-milimter handgun, gun holder, 45-caliber ammunition, and a 7.62 x 39 rifle round. The brands of the ammunition and rifle round from Jackson's residence matched the brands of casings recovered from the scene of the incident. In January 2019, Detroit Police Officer Kevin Butters recovered a firearm in a crate in the backyard of a house.
This type of bullet is typically used in assault rifles, including the "AK-47 or the SKS."
At trial, Michigan State Police Lieutenant Ronald Crichton testified as a qualified expert in firearm and tool mark analysis. Lieutenant Crichton examined the bullet casings, fired bullets, bullet fragments, and firearms recovered from the incident and resulting search warrant, testifying that the firearm recovered in January 2019 matched some of the 7.62 x 39 casings recovered from the scene of the incident. Lieutenant Crichton also concluded the 7.62 x 39 rifle round recovered from Jackson's residence and some of the 7.62 x 39 casings recovered from the scene of the incident were the same brand. In addition, Detroit Police Department Forensic Analyst Melanie Weathers testified as a qualified expert regarding cellular records and tele-mapping data. Weathers stated defendant's cellphone records indicated his cellphone was turned off at about 9:15 p.m. on the night of the incident. At 12:39 a.m., defendant's cellphone became active north of the White Castle. Weathers admitted there was no way to know where defendant's cellphone was between 9:15 p.m. and 12:39 a.m.
Lastly, Crystal Gray, the mother of defendant's minor son, testified that defendant came home the night of the shooting at about 12:00 a.m. Gray stated defendant sat with their son while Gray finished with a client's hair. While at the house, Gray stated defendant called her from inside the house, and defendant received telephones calls because "people thought he was involved" in the shooting. At about 12:45 a.m., defendant left the house. Beyond this information, Gray did not know how defendant got to or left the house, who dropped off or picked up defendant, or where defendant had been or was going. After the presentation of evidence, the jury found defendant guilty of first-degree murder of the victims and the felon-in-possession and felony-firearms charges.
II. ANALYSIS
The trial court did not err in finding there was sufficient identification evidence to support defendant's convictions. In addition, defendant was not denied effective assistance of counsel by trial counsel's decision to not call additional alibi witnesses or any rebuttal expert witnesses or the extent to which trial counsel cross-examined eyewitnesses at trial. Further, the trial court did not err in admitting a statement made by deceased victim, Anthony, at trial about defendant prior to the time he was shot.
A. SUFFICIENCY OF THE EVIDENCE
First, defendant argues there was insufficient evidence, specifically evidence identifying him as a shooter, to support his convictions. We disagree.
"A challenge to the sufficiency of the evidence in a jury trial is reviewed de novo, viewing the evidence in the light most favorable to the prosecution, to determine whether the trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt." People v Gaines, 306 Mich.App. 289, 296; 856 N.W.2d 222 (2014). This Court "must defer to the fact-finder by drawing all reasonable inferences and resolving credibility conflicts in support of the jury verdict." People v Schumacher, 276 Mich.App. 165, 167; 740 N.W.2d 534 (2007).
"Due process requires that the evidence show guilt beyond a reasonable doubt in order to sustain a conviction." People v Unger, 278 Mich.App. 210, 222; 749 N.W.2d 272 (2008). To establish first-degree murder, "the prosecution must establish beyond a reasonable doubt a '[m]urder perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing.'" People v Oros, 502 Mich. 229, 240; 917 N.W.2d 559 (2018), quoting MCL 750.316(1)(a). The essential elements required to prove first-degree murder are: "(1) the intentional killing of a human (2) with premeditation and deliberation." Id. (quotation marks and citation omitted). In addition, "identity is an element of every offense." People v Yost, 278 Mich.App. 341, 356; 749 N.W.2d 753 (2008). "Circumstantial evidence and reasonable inferences that arise from the evidence can constitute sufficient proof of the elements of the crime." People v Taylor, 275 Mich.App. 177, 179; 737 N.W.2d 790 (2007) (quotation marks and citation omitted). "[A] reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict." Id. (quotation marks and citation omitted).
A rational trier of fact could find the essential elements of first-degree murder were proven beyond a reasonable doubt. Defendant does not dispute that the crime occurred. However, defendant contends there is no evidence that identifies him at the scene of the incident or identifies him as a shooter. In support of his argument, defendant points to the lack of DNA evidence and cellphone data linking him to the scene of the shooting, Jones's vague eyewitness testimony, Pittman's unreliable eyewitness testimony, and Gray's alibi testimony. Despite defendant's contentions to the contrary, viewing the evidence in a light most favorable to the prosecution, we find there is sufficient evidence to establish defendant was a shooter involved in the death of the victims to sustain defendant's first-degree murder convictions.
The record has ample circumstantial evidence that defendant was a shooter involved in the incident. Shortly before the incident, the surveillance footage showed defendant, Anderson, and Jackson, in Anderson's Taurus, associating with a Camry, identified as Brassel's car, at the gas station next to the White Castle. From the surveillance footage, Detective Lambert identified defendant obtaining a dark-colored sweatshirt and assault rifle from Jackson's Vue before getting back in the Taurus. Minutes before the incident occurred, the Taurus was seen driving toward the White Castle. Jones and Pittman, who were in their respective vehicles at the time of the incident, observed a taller shooter, matching defendant's physical build, with an assault rifle, wearing dark clothing and a mask. From her observations, Pittman identified defendant, Anderson, and Jackson as the shooters.
Additionally, the record shows that defendant had a preexisting relationship with the victims, involving a gang rivalry or general dislike for one another. In fact, while inside the White Castle, the victims talked about the vehicles they saw driving around the building, identifying them as "opponents or people they don't like." Moreover, Pittman's testimony revealed that Anthony was fearful of a confrontation with defendant, which was evident in his actions hours before the incident when Anthony shot at an unidentified person on a street whom he thought was defendant. While defendant contends Pittman's eyewitness testimony is unreliable because she only cooperated to avoid being charged with narcotics violations and to have impound fees waived, this argument merely is speculative and fails to identify what statements by Pittman were untruthful or to provide evidence establishing that Pittman was not testifying truthfully. Additionally, the jury evidently found Pittman credible, despite her motivation to cooperate in order to avoid narcotics violations and impound fees. Regardless, "[t]his Court must not interfere with the jury's role as the sole judge of the facts when reviewing the evidence." People v Agar, 314 Mich.App. 636, 652; 887 N.W.2d 662 (2016).
Moreover, defendant contends there is no cellphone data that places him at the scene of the incident. While defendant's cellphone was turned off during the duration of the incident, the cellphone records placed Anderson, Jackson, and Brassel near the scene before and during the incident. Shortly after the incident, defendant's cellphone was turned on and was located in the same area as Anderson's and Brassel's cellphones, i.e., just north of the White Castle. Because defendant was observed with Anderson and Jackson, before the incident, at the Valero gas station, there was a reasonable inference that defendant was involved in the shootings, despite defendant's cellphone being turned off.
Defendant further contends Gray's testimony established he was miles away from the scene of the incident. We acknowledge Gray's testimony that defendant was at home, from 12:00 a.m. to 12:45 a.m., at the time of the shootings. However, outside of defendant's arrival and departure, Gray admitted she had no recollection of where defendant was or went, who defendant was with, or how defendant arrived or left the house. Despite Gray's testimony, the jury evidently found the evidence linking defendant to the scene credible and Gray's testimony incredible, and "[t]his Court must not interfere with the jury's role as the sole judge of the facts when reviewing the evidence." Agar, 314 Mich.App. at 652.
On this basis of the evidence presented at trial, a jury reasonably could infer that defendant had the means, motive, and opportunity to commit first-degree murder when he obtained the assault rifle and went to the White Castle where the victims were seen. While there is no DNA evidence, recovered bullets, or casings directly linking defendant to the shooting, a rational trier of fact could rely on circumstantial evidence and make reasonable inferences from such evidence to determine defendant was guilty of the crimes charged, there was sufficient evidence to support defendant's first-degree murder convictions, and his right to due process was not violated. Taylor, 275 Mich.App. at 179.
Defendant did not explicitly challenge the sufficiency of his felony-firearm or felon-in-possession convictions. However, we conclude there is sufficient evidence to establish defendant possessed and used an assault rifle in the murder of the victims, and defendant was previously convicted of a felony, there was also sufficient evidence that defendant was a felon-in-possession of a firearm during the commission of a felony. People v Bass, 317 Mich.App. 241, 267-269; 893 N.W.2d 140 (2016).
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Next, defendant argues trial counsel was ineffective for the failure to call four alibi witnesses, to call any rebuttal expert witnesses, and in his alleged failure to effectively cross-examine eyewitnesses at trial. We disagree on each of these claims.
A claim of ineffective assistance of counsel must be raised below in a motion for a new trial or an evidentiary hearing under People v Ginther, 390 Mich. 436, 443; 212 N.W.2d 922 (1973). People v Snider, 239 Mich.App. 393, 423; 608 N.W.2d 502 (2000). Because defendant first raised his ineffective assistance of counsel argument on appeal, it is unpreserved for appellate review.
The determination of whether a defendant has been deprived of the effective assistance of counsel presents a mixed question of fact and law. People v LeBlanc, 465 Mich. 575, 579; 640 N.W.2d 246 (2002). The trial court's factual findings are generally reviewed for clear error, while its constitutional determinations are reviewed de novo. Id. However, because defendant's claim of ineffective assistance of counsel is unpreserved, this Court's "review is limited to errors apparent on the record." Unger, 278 Mich.App. at 253.
Effective assistance of counsel is presumed and defendant bears a heavy burden to prove otherwise. People v Rockey, 237 Mich.App. 74, 76; 601 N.W.2d 887 (1999). To establish ineffective assistance of counsel, defendant must show that counsel's performance fell below an objective standard of reasonableness, and that the representation so prejudiced defendant that he or she was denied the right to a fair trial. People v Pickens, 446 Mich. 298, 338; 521 N.W.2d 797 (1994). To establish prejudice, defendant must show a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. People v Johnson, 451 Mich. 115, 124; 545 N.W.2d 637 (1996). Defendant must overcome the strong presumption that counsel's actions constituted sound trial strategy under the circumstances. People v Toma, 462 Mich. 281, 302; 613 N.W.2d 694 (2000).
The decision whether to call or question witnesses is presumed to be a matter of trial strategy. People v Russell, 297 Mich.App. 707, 716; 825 N.W.2d 623 (2012). Further:
[A] claim of ineffective assistance of counsel premised on the failure to call witnesses is analyzed under the same standard as all other claims of ineffective assistance of counsel, i.e., 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." [People v Jurewicz, 506 Mich. 914; 948 N.W.2d 448 (2020), quoting People v Trakhtenberg, 493 Mich. 38, 51; 826 N.W.2d 136 (2012), and citing Strickland v Washington, 466 U.S. 668; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984).]
A claim of ineffective assistance of counsel for the failure to investigate or call witnesses will fail when the party does not produce affidavits describing testimony that would have been elicited from those witnesses or show how the proposed testimony would have benefited the defense. People v Davis, 250 Mich.App. 357, 369; 649 N.W.2d 94 (2002).
Defendant argues Javianna Gray, Jarron Gray, Nichelle Lang, and Ashley Hardaway should have been called as witnesses at trial to testify that defendant was at home when the shootings took place. However, beyond identifying these persons, defendant does not provide affidavits from any of them as to what their testimony at trial would have been. Rather, defendant offers a vague statement that their testimony would have corroborated Gray's testimony. In fact, defendant's decision to not attach affidavits or additional information regarding these witnesses' potential testimony, and trial counsel's decision to not call these witnesses, suggests that these witnesses were unwilling to testify on defendant's behalf or their testimony was not favorable to defendant. On this basis, we find defendant fails to rebut the strong presumption that trial counsel was ineffective for this reason. Davis, 250 Mich.App. at 369.
Further, defendant does not establish that the outcome of his trial would have been different had these persons testified. Defendant suggests the jury found Gray's alibi testimony incredible because of his personal relationship with Gray, and, if the additional witnesses had testified, the jury would have believed he was at home at the time of the incident. However, a review of the record indicates defendant's personal relationship with Gray was not the most significant factor in the incredibility of defendant's alleged alibi. Rather, there was substantial evidence, including eyewitness testimony, video surveillance footage, cellphone data, and conduct by the victims, from which the jury could have concluded that defendant committed the charged crimes. Additionally, it is interesting that defendant does not wish to have the person(s) that allegedly drove him to and from his house on the night of the incident testify on his behalf.
Defendant also argues trial counsel failed to call any rebuttal expert witnesses at trial. To support this argument, defendant contends expert witnesses should have been called to rebut Weathers's testimony, concerning cellphone data, and Lieutenant Crichton's testimony, concerning the firearm and tool mark analysis. Defendant contends trial counsel failed to effectively examine Weathers and Lieutenant Crichton on their qualifications as experts. However, beyond broadly identifying trial counsel's shortcomings, defendant has not made an offer of proof regarding the substance of any testimony a rebuttal expert could have offered. As stated, the decision whether to question or call witnesses is presumed to be a matter of trial strategy. Russell, 297 Mich.App. at 716. A defendant cannot establish ineffective assistance of counsel using speculation that an expert would have testified favorably. People v Payne, 285 Mich.App. 181, 190; 774 N.W.2d 714 (2009). Here, defendant has not provided a witness affidavit or identified any rebuttal experts that would testify regarding his claim. On this basis, defendant fails to rebut the strong presumption that trial counsel was ineffective for this reason. Davis, 250 Mich.App. at 369.
Even to the extent trial counsel should have called a rebuttal forensic analyst or firearms expert, the outcome of the proceedings would not have been different. During cross-examination, Weathers admitted there was no way of knowing where defendant's cellphone was located between 9:15 p.m. and 12:39 a.m., the night of the incident, because it was turned off. Instead, Weathers's testimony primarily analyzed the location of Jackson's, Anderson's, and Brassel's locations, and the prosecution attempted to create an inference that defendant was with them. Because defendant's cellphone was turned off and provided no location information during the incident, we are skeptical about what testimony a rebuttal expert could offer regarding his cellphone data. Similarly, while trial counsel did not cross-examine Lieutenant Crichton, his testimony was not particularly damaging to defendant because the firearm he identified, using the 7.62 x 39 rifle rounds during the incident, was recovered in a location unrelated to defendant. In fact, Lieutenant Crichton did not testify regarding any evidence that directly linked defendant to the incident.
Because there was no firearm evidence recovered from defendant's possession or containing defendant's DNA, we are similarly skeptical about what testimony a rebuttal expert could offer for the defense. Rather, it appears the jury relied more heavily on the eyewitness testimony, video surveillance footage, cellphone data, and conduct by the victims. Accordingly, defendant's claim of ineffective assistance of counsel for a failure to call rebuttal expert witnesses is without merit.
Defendant next argues that trial counsel failed to effectively cross-examine eyewitness testimony. However, this Court "will not second-guess counsel on matters of trial strategy, nor will we assess counsel's competence with the benefit of hindsight." People v Horn, 279 Mich.App. 31, 39; 755 N.W.2d 212 (2008). Defendant contends Pittman and Jones were not effectively questioned about consuming alcohol before the incident, Pittman's overall memory of the incident, or Jones's pending criminal charges. A review of the record indicates that trial counsel obtained cross-examination testimony from Jones that he, Pittman, and the victims had been consuming alcohol before the incident. Trial counsel cross-examined Pittman regarding her cooperation in testifying to avoid narcotics violations and to have impound fees waived. While there was no cross-examination relating to Pittman's testimony that she was "dozing off" in her vehicle shortly before the incident occurred, trial counsel did object to Pittman's testimony regarding Anthony's shooting at a person on the street hours before the White Castle shooting. However, the trial court overruled this objection.
We note that trial counsel did not specifically question Pittman regarding her alcohol consumption before the incident or Jones regarding his pending criminal history. To the extent trial counsel failed to thoroughly cross-examine Pittman and Jones, defendant has not established the outcome of the proceedings would have been different if trial counsel had done so. The eyewitness testimony, on its own, did not offer significant damaging testimony because neither eyewitness could explicitly identify defendant as a shooter. Rather, Pittman's and Jones's testimony was supported by other evidence, including the video surveillance footage, cellphone data, and evidence recovered from the scene and search warrants, which the jury could evaluate for themselves. In fact, it appears trial counsel's decision to not painstakingly question the eyewitnesses prevented additional testimony coming out at trial regarding defendant's motive and history with the victims. Specifically, Pittman testified, in October 2018 during an investigative subpoena under MCL 767(a)(1), that Anthony was found not guilty of shooting a person who was the sister of one of defendant's friends, which prompted a separate "shootout" between defendant and Anthony in August 2018. Pittman also testified that she "for sure knew the [person] with the AK-47 was [defendant]" because of the recent interaction with Anthony. In light of this, trial counsel's trial strategy of limiting cross-examination to testimony that supported the theory that defendant was not involved in the incident was reasonable.
Accordingly, all of defendant's claims of ineffective assistance of counsel are without merit.
C. HEARSAY
Defendant argues the trial court erred in the admission of the statement from deceased victim, Anthony, that he saw defendant on the street before the shootings and caused Anthony to fire his gun at defendant prior to the White Castle shooting at which Anthony was killed. We disagree.
"Preserved evidentiary rulings are reviewed for an abuse of discretion." Unger, 278 Mich.App. at 216. A trial court abuses its discretion "when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." Id. at 217.
In general, hearsay evidence is not admissible unless it qualifies under an exception to the rules of evidence. MRE 802. Hearsay is an oral or written "statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." MRE 801(c). A statement is not hearsay if it is offered for a purpose other than to prove the truth of its contents. People v Mesik (On Reconsideration), 285 Mich.App. 535, 540; 775 N.W.2d 857 (2009).
A review of the record indicates, several hours before the incident, Pittman attended a vigil, honoring a recently deceased friend, with the victims of the White Castle shooting. Pittman observed Anthony acting different, stating that Anthony seemed angry and worried. Over trial counsel's objections, Pittman testified as follows:
Prosecutor: Can you continue with what was said?
Pittman: [Anthony] said he had seen someone riding a moped earlier, so.
Prosecutor: And did he indicate why he was worried about seeing that person riding by?
Pittman: No.
Prosecutor: Did [Anthony] tell you who he thought it was that was riding by?
Pittman: Yes.
Prosecutor: Who did [Anthony] say he thought was riding by?
Pittman: Will[, ] [i.e., defendant].
When Anthony thought he saw defendant on the street "riding on a bike," Pittman testified that Anthony fired his gun at the unidentified person.
We find there was no error in admitting Anthony's statement or conduct because it was not hearsay. Specifically, the prosecutor did not introduce the evidence to prove that the person Anthony shot at was defendant. Instead, the evidence was admitted to establish Anthony's state of mind hours before the incident and the preexisting relationship between defendant and the victims. Because this evidence was not introduced to prove the truth of the matter asserted, it was not barred as inadmissible hearsay.
Nevertheless, even to the extent the statement was hearsay, it was admissible under the present sense impression hearsay exception. A present sense impression is "[a] statements describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." MRE 803(1). To admit a hearsay statement as a present sense impression, three conditions must be established: "(1) the statement must provide an explanation or description of the perceived event, (2) the declarant must personally perceive the event, and (3) the explanation or description must be substantially contemporaneous with the event." People v Hendrickson, 459 Mich. 229, 236; 586 N.W.2d 906 (1998) (quotation marks and citation omitted). Present sense impressions "are presumed to be trustworthy because (1) the simultaneous event and description leave no time for reflection, (2) the likelihood for calculated misstatements is minimized, and (3) generally, the statement is made in the presence of another witness who has the opportunity to observe and verify its accuracy." Id. at 235. A review of the record indicates that Anthony's statement, identifying "defendant" on the street, was made contemporaneously with Anthony's sighting of the person and moments before he fired his gun at the person. Defendant's reading of Pittman's statement-"[h]e said he had seen someone riding a moped earlier . . ."-as evidence that Anthony's statement was not contemporaneous with the event. However, while Anthony may have seen a moped on the street "earlier," Pittman stated Anthony fired his gun at a person on the street at time he made the statement. As a result, Anthony's statement directly described the event and his observations; and, therefore, satisfies the present sense impression requirements.
We note Anthony's statement could also have been considered an excited utterance. MRE 803(2); People v Smith, 456 Mich. 543, 550; 581 N.W.2d 654 (1998).
Regardless, even without Anthony's statement, the evidence at trial supported defendant's convictions. This evidence included eyewitness testimony, video surveillance footage, cellphone data, and conduct by the victims, from which the jury could have concluded that defendant committed the charged crimes. Additionally, the victims' behavior inside the White Castle, i.e., discussing the vehicles and "ops" they saw driving by, and Pittman's testimony that the victims and defendant did not like each other established a preexisting relationship between defendant and the victims, and defendant's potential motive for committing the charged crimes. On this basis, the trial court did not err in admitting Anthony's statement at trial.
III. CONCLUSION
For all of these reasons, we affirm defendant's convictions.