Opinion
364043 364045
07-25-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. KENNETH CARL DIXON, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court LC Nos. 18-007877-01-FC; 19-000537-01-FC
Before: JANSEN, P.J., and REDFORD and D. H. SAWYER [*] , JJ.
PER CURIAM.
In Docket No. 364043, defendant appeals as of right his jury-trial convictions of carjacking, MCL 750.529a, armed robbery, MCL 750.529, receiving or concealing stolen property valued at $20,000 or more, MCL 750.535(2)(a), and resisting or obstructing a police officer, MCL 750.81d(1). Defendant was sentenced, as a third-offense habitual offender, MCL 769.12, to 29 to 50 years' imprisonment for the carjacking conviction, 29 to 50 years' imprisonment for the armed-robbery conviction, 7 to 15 years' imprisonment for the receiving or concealing stolen property valued at $20,000 or more conviction, and 1 to 3% years' imprisonment for the resisting or obstructing a police officer conviction.
This Court consolidated these appeals, which relate to two criminal cases against the same defendant that were also consolidated in the trial court. See People v Dixon, unpublished order of the Court of Appeals, entered December 20, 2022 (Docket Nos. 364043 and 364045).
In Docket No. 364045, defendant appeals as of right his jury-trial convictions of first-degree premeditated murder, MCL 750.316(1)(a), conspiracy to commit first-degree premeditated murder, MCL 750.157a; MCL 750.316(1)(a), witness intimidation by committing a crime or threatening to kill or injure, MCL 750.122(7)(c), and retaliating against a witness, MCL 750.122(8). Defendant was sentenced, as a third-offense habitual offender, MCL 769.12, to life in prison without the possibility of parole for the first-degree premeditated murder conviction, life in prison without the possibility of parole for the conspiracy to commit first-degree murder conviction, 13 to 22% years' imprisonment for the witness-intimidation conviction, and 10 to 15 years' imprisonment for the retaliating against a witness conviction. In both matters, we affirm.
I. BACKGROUND
These consolidated cases relate to a September 7, 2018 carjacking that occurred in Harper Woods, Michigan, and the murder of one of the two carjacking victims on October 9, 2018. The carjacking occurred at a BP gas station in the evening. The surviving victim, Joseph Rogers, explained at trial that his Dodge Charger was stolen during the carjacking. Rogers kept personal items inside the car. The other victim, Starkisha Thompson, left her purse and iPhone in the Charger when it was stolen. The police who responded used a GPS tracker on Thompson's iPhone to locate the Charger about one mile from the carjacking scene.
When the police arrived at the area of the GPS signal, they found defendant removing items from the trunk of the Charger and placing them on the porch of a nearby home. Defendant fled from the police, but was caught and taken to the Harper Woods Jail. Thompson identified defendant as the perpetrator on the night of the carjacking incident and during defendant's preliminary examination in the carjacking case. While in jail, defendant engaged in a series of interviews with the officer in charge, Harper Woods Deputy Police Chief Ted Stager, which led Deputy Chief Stager to believe that defendant participated in the carjacking with a man named Corey "Omari" Holmes. Defendant acknowledged during the interviews that he was at the BP gas station with Holmes on the night of the carjacking. Deputy Chief Stager reviewed videotape surveillance footage from the relevant areas, which depicted a red Dodge Challenger following the victims from a nearby Starters Restaurant to the BP gas station. Defendant had a red Challenger registered to him at the time of the carjacking. The police also found a Challenger matching the description of defendant's vehicle parked across the street from the area where the Charger was found.
While incarcerated, defendant participated in visits and jail calls with Holmes and with defendant's girlfriend, Jah-Lana Streeter. During their calls and in-person conversations, the group planned to bribe (or harm) the victims in an effort to prevent their testimony against defendant. The bribery effort did not work, and Thompson testified at defendant's October 3, 2018 preliminary examination in the carjacking case. Defendant was bound over in the carjacking case on the theory that he was the principal carjacker. According to Streeter, defendant was angry that Thompson testified, and the group initiated a plan to kill Thompson. Holmes (who was not incarcerated at the time) would carry out the murder. Defendant supplied Thompson's address. The plan was discussed in a series of jail calls that were admitted at trial.
On the morning of October 9, 2018, Thompson was shot several times and killed in her driveway. Rogers was with her. Rogers saw the shooter but did not see his face because the shooter was wearing a mask. The police conducted DNA testing of a garbage can near Thompson's house, and the result of the DNA testing was that there was "very strong support" that Holmes's DNA was part of the DNA sample. The shooter was also depicted on videotape footage from a nearby home. Streeter testified at trial that Holmes met with her after Thompson's murder and told Streeter that he killed Thompson. When Streeter informed defendant that Thompson had been killed, he appeared relieved. Streeter was arrested about a week later and charged with first-degree premeditated murder. She accepted a plea agreement in exchange for her testimony at defendant's trial and Holmes's trial.
Defendant and Holmes were both charged with several crimes in relation to Thompson's murder and the circumstances surrounding the bribery attempt. Defendant's carjacking case and the murder case were consolidated. Later, defendant's case and Holmes's case were severed, and they were tried separately. Initially, the prosecution pursued a theory that defendant was the principal carjacker because of Thompson's identification on the night of the incident and during the preliminary examination. However, according to the prosecution, after Thompson's death, the prosecution reexamined the evidence. This led the prosecution to believe that Holmes was the principal carjacker and defendant aided and abetted him. The trial court authorized a second preliminary examination, and defendant was bound over again on the charges in the carjacking case, but this time on an aiding and abetting theory. After approximately four years, defendant was tried in October 2022 in both matters. He was convicted and sentenced as noted. This appeal followed.
II. SPEEDY TRIAL
Defendant first argues on appeal in both cases that he was denied his right to a speedy trial because of the four-year delay between his arrest and his trial. We disagree.
We note at the outset that there is a dispute about whether defendant preserved this issue in the trial court. To preserve a speedy-trial issue for appeal, the defendant "must make a 'formal demand on the record'" that he be brought for trial. People v Cain, 238 Mich.App. 95, 111; 605 N.W.2d 28 (1999) (citation omitted). See also People v Rogers, 35 Mich.App. 547, 551; 192 N.W.2d 640 (1971) (noting more specifically that the demand is for the defendant to be brought for trial).
We conclude that defendant preserved this issue in two ways. First, in June 2021, defendant moved to dismiss the charges in both cases for violation of his constitutional right to a speedy trial. The trial court did not decide the motion. Additionally, defendant raised the issue during the September 26, 2022 pretrial hearing, when defense counsel explained that defendant objected vehemently to any further adjournments of trial and that he was ready to proceed with trial. He argued that if the trial were adjourned again, then the case should be dismissed. The prosecution argues that counsel did not mention a constitutional violation at the hearing, but counsel's statement constituted a formal demand that defendant be brought for trial. Therefore, the issue is preserved for our review.
The issue whether a defendant was denied his right to a speedy trial involves a constitutional-law question, which we review de novo. People v Williams, 475 Mich. 245, 250; 716 N.W.2d 208 (2006). We review the trial court's factual findings for clear error. Id. A clear error occurs when this Court is left with a definite and firm conviction that a mistake was made. People v Jarrell, 344 Mich.App. 464, 474; 1 NW3d 359 (2022), lv held in abeyance 994 N.W.2d 778 (Mich, 2023).
The United States Constitution and the Michigan Constitution both guarantee a criminal defendant the right to a speedy trial. U.S. Const, Am VI; Const 1963, art 1, § 20. The right is also enforced through statute and court rule. MCL 768.1; MCR 6.004(A). The timing for determining the delay begins when the defendant is arrested. Williams, 475 Mich. at 261. To determine whether a defendant's constitutional right to a speedy trial has been violated, this Court will balance four factors: "(1) the length of delay, (2) the reason for delay, (3) the defendant's assertion of the right, and (4) the prejudice to the defendant." Id. at 261-262. If the delay before trial is 18 months or more, then prejudice is presumed, and the burden shifts to the prosecution to show that there was no injury to the defendant. Id. at 262.
The first factor is the length of the delay. Defendant was arrested on September 7, 2018, for the carjacking case. He was already incarcerated for the carjacking when he was charged in the murder case in October 2018. The trial occurred in October 2022. In both cases, the length of the delay was approximately four years, which was well over the 18-month threshold to trigger a presumptively prejudicial delay. As such, prejudice must be presumed.
Turning to the issue of the reason for the delay, this Court will examine whether each period of the delay can be attributed to the defendant or the prosecution. People v Waclawski, 286 Mich.App. 634, 666; 780 N.W.2d 321 (2009). "Although delays inherent in the court system, e.g., docket congestion, are technically attributable to the prosecution, they are given a neutral tint and are assigned only minimal weight in determining whether a defendant was denied a speedy trial." Williams, 475 Mich. at 263 (quotation marks and citation omitted). The time it takes to gather and analyze evidence is also a legitimate reason for delay. Cain, 238 Mich.App. at 113. When the defendant requests an adjournment of the trial, this time is attributed to the defendant. Id. Also, the time spent adjudicating motions filed by the defense is attributed to the defendant. Id. This Court recently held that delays attributable to the COVID-19 pandemic are neutral factors which are not attributable to the prosecution. People v Smith, Mich. App,,; NW3d (2024) (Docket No. 362114); slip op at 5. Unexplained delays and scheduling delays are attributed to the prosecution. Waclawski, 286 Mich.App. at 666. Finally, the delay caused by the withdrawal of defense counsel cannot be attributed to the prosecution. See People v Collins, 388 Mich. 680, 691; 202 N.W.2d 769 (1972).
For purposes of our review, we divide the four-year delay into roughly four periods. The first period of delay spanned from September 2018 to March 2020. This delay can be attributed to defendant and Holmes. Defendant was charged in the carjacking case on September 10, 2018. When Thompson was murdered, defendant had to be arraigned on the charges for the murder. In early 2019, defendant filed a number of pretrial motions. Defendant also requested a new attorney. Holmes's attorney requested a separate trial in the murder case, and later requested a trial adjournment in June 2019. Defendant then moved for a separate trial. Finally, the register of actions reflects that the December 2019 jury trial was canceled at the request of the defense. So, this initial delay can be attributed to defendant.
The next period of delay was from March 2020 through March 2021. This period correlates with the period of restrictions on trials because of the COVID-19 pandemic. See In re Sanborn, 337 Mich.App. 252, 269-270; 976 N.W.2d 44 (2021); Administrative Order No. 2020-1, 505 Mich. xcix (2020), rescinded July 26, 2021; Administrative Order No. 2020-2, 505 Mich. cii (2020), rescinded July 26, 2021. AO 2020-2 initially instructed trial courts to adjourn all criminal matters, including jury trials, for a limited period. People v Witkoski, 341 Mich.App. 54, 57; 988 N.W.2d 790 (2022). See also AO 2020-2. Later, the order was extended indefinitely. Witkoski, 341 Mich.App. at 57-58; Administrative Order No. 2020-12, 505 Mich. cxlii (2020). Because this period of delay correlates with the COVID-19 pandemic, this period was neutral and cannot be attributed to the prosecution. See Smith__, Mich.App. at__; slip op at 5.
The third period of delay was from early 2021 through January 2022. In January 2021, defendant filed a series of additional pretrial motions. The motions were discussed during several pretrial hearings in the spring and summer of 2021. In September 2021, defendant moved to quash the information in the carjacking case because the charges were premised on Thompson's misidentification of him as the principal carjacker. In response, the prosecutor asked the court to remand the case to the district court to hold a new preliminary examination to decide whether the prosecution could establish probable cause based on an aiding and abetting theory. In October 2021, the court remanded the case to the district court. Another preliminary examination was held, and in early 2022, defendant was bound over again on the charges relating to the carjacking. Thus, the first part of this delay (from early 2021 to about September 2021) can be attributed to defendant's filing of additional motions. About four months of delay (from September 2021 to early 2022) can be attributed to the prosecution's decision to change its theory of the carjacking case.
The final period of delay, from early 2022 to October 2022, can be attributed to both defendant and the prosecution. In the spring of 2022, defense counsel indicated that he intended to file additional motions. The court scheduled the trial for the summer of 2022. Defendant moved to quash the information in the carjacking case, arguing that there was insufficient evidence at the renewed preliminary examination to bind him over on the charges under an aiding and abetting theory. The motion was addressed during a May 2022 hearing. Then, in July 2022, defense counsel revealed that defendant was placed in a psychiatric unit at the jail on suicide watch, so the trial could not occur as scheduled. Therefore, the period from January 2022 to August 2022, a delay of about seven months, can be attributed to defendant.
At the time of the August 15, 2022 trial, the court noted that it had to adjourn the trial because of "a severe medical issue that is preventing one of the counsels to [sic] proceed today." This otherwise unexplained delay must be attributed to the prosecution. On September 26, 2022, the prosecutor for the homicide case explained that the prosecutor handling the carjacking case tested positive for COVID-19. The prosecutor requested an adjournment for a week so that he could prepare to try both cases himself. Defendant objected to the adjournment. The court scheduled the trial for October 3, 2022, and the trial started that day. Therefore, the final delay, from August 2022 through October 2022, can be attributed to the prosecution.
Considered as a whole, the total delay that can be attributed to the prosecution is only about five months. There is no indication that the prosecution intentionally delayed the trial to gain any tactical advantage. Defendant and his codefendant caused the majority of the delay (about 31 months). The COVID-19 pandemic caused a delay of about 12 months. Therefore, the reasons for the delay do not support defendant's speedy-trial claim.
The next factor is defendant's assertion of the right. Defendant asserted his right when he moved to dismiss the charges in both cases for violation of his constitutional right to a speedy trial. Then, defendant raised the issue again during the final pretrial hearing when he objected to another trial adjournment and requested dismissal of the case. Defendant asserted the right twice in the trial court, so this factor weighs in his favor.
The final factor is prejudice to defendant. Prejudice in this case is presumed because of the length of the delay. There are two types of prejudice: prejudice to the defendant's person and prejudice to the defense of the case. Williams, 475 Mich. at 264. Anxiety alone does not establish prejudice. Smith, __Mich App at__; slip op at 6." '[I]mpairment of defense is the most serious' form of prejudice in the context of a speedy-trial claim 'because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.'" Id. at__; slip op at 6 (citation omitted). The prejudice is obvious when a witness dies or disappears during the delay. Id. at__; slip op at 6. However, general or vague allegations of prejudice are insufficient to establish a speedy-trial violation. Id. at__; slip op at 6. "[A] reviewing court should look for examples about how the delay between arrest and trial harmed the defendant's ability to defend against the charges." Id. at__; slip op at 6. As noted earlier, when prejudice is presumed, the burden shifts to the prosecution to show that there was no injury to the defendant. Williams, 475 Mich. at 262. When this is the case, "a 'presumptively prejudicial delay triggers an inquiry into the other factors to be considered in the balancing of the competing interests to determine whether a defendant has been deprived of the right to a speedy trial.'" Id. (citation omitted).
Defendant likely suffered a considerable personal deprivation because of his incarceration for approximately four years during the peak of the COVID-19 pandemic. However, the most critical consideration is the prejudice to the defense of the case. Defendant requests an evidentiary hearing on this issue because the trial court did not address or decide it. He does not articulate what evidence he would highlight at the hearing to demonstrate prejudice. On the other hand, the prosecution explains that there is no evidence in the existing record that the delay jeopardized the defense of the case. For example, there is no indication that defendant could not call a particular witness to support the defense at trial or could not locate certain evidence because of the delay. Therefore, the record establishes that the delay did not create any identifiable form of prejudice to the defense, and an evidentiary hearing is not warranted.
The last step in the inquiry is to balance the competing factors to determine whether defendant was deprived of his right to a speedy trial. Balancing these four factors, the length of the delay and the assertion of the right factor in defendant's favor. However, the reasons for the delay and the prejudice factor weigh in the prosecution's favor. The most compelling factor is the reason for the delay. The delay attributed to the prosecution is minimal. On the other hand, a major reason for the delay was the COVID-19 pandemic, which cannot be attributed to the prosecution. And importantly, defendant and his codefendant contributed significantly to the delay by participating in Thompson's murder, among other things. Therefore, defendant's right to a speedy trial was not violated. See Williams, 475 Mich. at 265.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant next argues that defense counsel was ineffective by stipulating to the admission of surveillance videotape footage at trial and failing to object to Deputy Chief Stager's narration of the video during his testimony. Defendant has waived appellate review of his challenge to the admission of the videotape recordings by failing to produce the recordings at this Court's request. We disagree with defendant's argument regarding the admissibility of Deputy Chief Stager's testimony.
A defendant preserves the issue of ineffective assistance of counsel for appellate review by moving in the trial court for a new trial or a Ginther hearing, People v Heft, 299 Mich.App. 69, 80; 829 N.W.2d 266 (2012), or by moving in this Court to remand the case to the trial court for a Ginther hearing, People v Abcumby-Blair, 335 Mich.App. 210, 227; 966 N.W.2d 437 (2020). Defendant acknowledges on appeal that he has not taken any step to preserve the issue in either the trial court or in this Court. Therefore, the issue is unpreserved.
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
This Court reviews unpreserved claims of ineffective assistance of counsel for errors apparent on the record. People v Hoang, 328 Mich.App. 45, 63; 935 N.W.2d 396 (2019). A claim of ineffective assistance of counsel involves a mixed question of fact and constitutional law. People v Isrow, 339 Mich.App. 522, 531; 984 N.W.2d 528 (2021). This Court reviews the trial court's findings of fact for clear error, and reviews the legal questions involved de novo. Id. As noted earlier, clear error occurs when this Court is left with a definite and firm conviction that a mistake was made. Id.
Defendant waived appellate review of his challenge to the admission of the videotape recordings. Defendant did not include the surveillance video as an attachment to his brief on appeal, and the recordings do not appear in the lower court record. Defendant also did not respond timely to a request from this Court for the video. We therefore consider the issue waived. See People v Elston, 462 Mich. 751, 762; 614 N.W.2d 595 (2000) ("As the appellant below, defendant bore the burden of furnishing the reviewing court with a record to verify the factual basis of any argument upon which reversal was predicated."); Reed v Reed, 265 Mich.App. 131, 160-161; 693 N.W.2d 825 (2005), citing MCR 7.210(B) (explaining that an appellant waives an issue by failing to provide this Court with a complete record for this Court's review).
Turning to Deputy Chief Stager's narration, criminal defendants are entitled to the effective assistance of counsel under the United States Constitution and the Michigan Constitution. People v Yeager, 511 Mich. 478, 488; 999 N.W.2d 490 (2023), citing U.S. Const, Am VI; Const 1963, art 1, § 20. To establish a claim of ineffective assistance of counsel entitling the defendant to a new trial," '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 that outcome would have been different.'" Yeager, 511 Mich. at 488, quoting People v Trakhtenberg, 493 Mich. 38, 51; 826 N.W.2d 136 (2012). A reasonable probability is one that is "sufficient to undermine confidence in the outcome." Yeager, 511 Mich. at 488 (quotation marks and citations omitted). On the issue of deficient performance, attorneys are afforded broad latitude when determining trial strategy, and there is a strong presumption that counsel's performance was reasonable and was part of that strategy. Id. Counsel is presumed to be effective, but the court cannot insulate counsel's performance from review by characterizing it as trial strategy. Trakhtenberg, 493 Mich. at 52. Finally, defense counsel is not ineffective for failing to advance a meritless argument or raise a futile objection. People v Ericksen, 288 Mich.App. 192, 201; 793 N.W.2d 120 (2010).
Deputy Chief Stager did not testify as an expert witness. The prosecution argues that his testimony was admissible as a lay opinion under MRE 701, which provided at the time of trial:
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. [MRE 701, as amended June 1, 1995, 448 Mich. cxxxi (1995).]
In People v Fomby, 300 Mich.App. 46, 48; 831 N.W.2d 887 (2013), the defendant argued on appeal that the testimony of a police officer (who was also a certified video forensic technician) regarding the identity of individuals depicted in still photographs and in surveillance footage constituted impermissible lay opinion testimony. At trial, the officer had testified that the individuals depicted in the videotape footage and the photographs were the same individuals, and had opined that they were the victim, the suspects of the crime, and another woman who was with the suspects earlier that evening. Id. at 49. However, the police officer never identified the defendant as one of the individuals depicted in the photographs or the surveillance video. Id.
This Court held on appeal that the police officer's testimony was proper lay opinion testimony under MRE 701. Id. at 50. This Court held the testimony was rationally based on the officer's perception of the events in the video. Id. at 50-51. This Court rejected the argument that the officer could not testify based on his own perceptions because he was not present at the scene of the crime. Id. at 51. Instead, it could be inferred that he reviewed the videotape recording and still photographs several times before trial to testify about the identity of the individuals shown in the videotape and still photographs. Id. This Court further held that the officer's testimony was intended to provide a clearer understanding about what was depicted in the videotape recording, considering the six-hour length of the videotape. Id. at 51-52. Finally, the officer's testimony did not invade the province of the jury because he did not identify the defendant in the video or in any of the still photographs. Id.
Similarly, Deputy Chief Stager's testimony was rationally based on his perceptions of the video. The purpose of Deputy Chief Stager's testimony was to explain the connection between a red Challenger shown at Starters Restaurant and a similar vehicle depicted on the footage from the BP gas station. Deputy Chief Stager was the officer in charge of the case and had 27 years of experience at the time of trial. He obtained and reviewed several surveillance videos from the BP gas station and Starters Restaurant. He watched the footage "[n]umerous times." Based on his review of the BP gas station video, he was able to see the suspect's vehicle near the gas station, which was a red Dodge Challenger.
The videotape footage was played for the jury at trial. Deputy Chief Stager testified that the surveillance footage from Starters Restaurant showed Thompson and Rogers at the restaurant. The video showed four cars parked in a line, and a red Dodge Challenger was behind those cars. He did not testify that defendant was inside the Challenger. Deputy Chief Stager explained that the BP gas station footage showed Rogers's Charger coming to the gas station. The Challenger arrived about one minute later, and slowed down to a stop on nearby Vernier Road before turning into a driveway for an apartment complex on the other side of a retaining wall. Deputy Chief Stager explained that he was able to determine the Challenger was red after viewing the footage from different angles. The Challenger pulled back and forth on the driveway three times before it left. Deputy Chief Stager explained that the video showed someone coming from behind the retaining wall holding a gun.
All of this testimony was rationally based on Deputy Chief Stager's perceptions of the videotapes. When the prosecutor began questioning Deputy Chief Stager about what the Challenger was doing, the court admonished the prosecutor not to have him speculate. The court explained that Deputy Chief Stager should limit his testimony to what was depicted in the recordings. Therefore, the court ensured the testimony was limited to only what was rationally based on Deputy Chief Stager's perceptions of the videotapes after reviewing them several times before trial.
Deputy Chief Stager's testimony was also helpful to determine one of the facts in issue, i.e., the fact that a red Challenger followed the victims from Starters Restaurant to the BP gas station carrying an individual who carjacked the victims. Deputy Chief Stager viewed the video recordings numerous times before trial and assisted the jury in having a clearer understanding about what was depicted. Deputy Chief Stager did not identify defendant as the carjacker or the individual driving the Dodge Challenger. Thus, his testimony did not invade the province of the jury. Therefore, counsel was not ineffective for failing to object to Deputy Chief Stager's testimony because any objection would have been futile. See Ericksen, 288 Mich.App. at 201.
IV. OFFENSE VARIABLE (OV) 13
Defendant next argues that the trial court clearly erred by assessing 25 point for OV 13 in the carjacking case because the carjacking involved only a single act of larceny. We disagree.
We review the trial court's findings regarding a particular offense-variable score under the sentencing guidelines for clear error, and a preponderance of the evidence must support the factual findings. People v Baskerville, 333 Mich.App. 276, 291; 963 N.W.2d 620 (2020)." '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. at 292 (citation omitted).
OV 13 examines whether there was a "continuing pattern of criminal behavior." MCL 777.43(1). The assessment of 25 points for OV 13 is appropriate when "[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). When "[n]o pattern of felonious criminal activity existed," the court should not assign any points for OV 13. MCL 777.43(1)(g). When assessing points under OV 13, "all crimes within a 5-year period, including the sentencing offense, shall be counted regardless of whether the offense resulted in a conviction." MCL 777.43(2)(a).
The parties discuss two cases in their briefs on appeal. In People v Gibbs, 299 Mich.App. 473, 487; 830 N.W.2d 821 (2013), this Court held that multiple convictions arising from the same incident may be considered part of the pattern of felonious activity for purposes of OV 13. This Court concluded that the defendant committed three separate acts against three different victims when the defendant and his codefendant robbed a wholesale store. Id. at 488. There were three individuals in the store at the time: the two store owners and a store employee. Id. at 478. The codefendant struck one of the victims in the head with a gun (causing him to suffer injuries) and then held him at gunpoint while the defendant took items from the other two victims and took other items from the store. Id. This Court concluded on appeal that the defendant committed three separate acts against the three victims, and those crimes constituted a pattern of felonious activity, even though the crimes were part of the same criminal episode. Id. at 488.
In contrast, in People v Carll, 322 Mich.App. 690, 704-705; 915 N.W.2d 387 (2018), this Court held that a single felonious act does not constitute a pattern of criminal activity, and more than one felonious event must exist to assess points for OV 13. The defendant in Carll was convicted of several crimes arising from his reckless driving when he drove through a stop sign and hit another car, causing the death of one individual and causing severe injuries to several other individuals. Id. at 693-694. This Court concluded that while there were multiple victims, the defendant's reckless driving was one single felonious act. Id. at 705-706. So, the trial court should have assessed no points for OV 13. Id. at 706. The Carll Court distinguished Gibbs on the basis that the defendant in Gibbs had committed three separate criminal acts against each of the three victims, which constituted a pattern of criminal activity. Id. at 705.
This case is more like Gibbs than Carll. The crimes of armed robbery and carjacking are crimes against a person. See MCL 777.16y. So is resisting or obstructing a police officer. MCL 777.16d. Like the defendant in Gibbs, defendant participated in multiple felonious acts involving crimes against a person by assisting with the carjacking and armed robbery, which resulted in the assault and the taking of the personal property of both victims (specifically, the taking of Rogers's Charger and Thompson's personal items). These crimes involved separate acts against the two victims. While the focus of the trial was on Thompson because she was the individual in the driver's seat when the carjacking occurred, Rogers was also at the scene of the incident during the carjacking and was within the vicinity of Holmes. Defendant later fled from the police, which led to his conviction of resisting or obstructing a police officer. These acts (the carjacking and armed robbery of Thompson, the carjacking of Rogers, and resisting and obstructing the police) constituted a pattern of felonious criminal activity involving three or more crimes against a person.
Regardless, even if the carjacking and armed-robbery convictions arose from one felonious act, the court was able to consider other crimes within a five-year period. See MCL 777.43(2)(a). Defendant committed additional crimes within the five-year time frame. About a month after the carjacking incident, while he was incarcerated, defendant engaged in a scheme to intimidate Thompson and Rogers against testifying, and later retaliated against Thompson for testifying at the preliminary examination by assisting in her murder. Retaliating against a witness and intimidating a witness by committing a crime or threatening to kill or injure the witness are also crimes against a person. MCL 777.16f.
Finally, the prosecution notes that Rogers was also shot at during the incident involving Thompson's murder. Defendant was not charged with or convicted of a crime in relation to that assault, but he did not need to be for this crime to be considered as part of the pattern of felonious criminal activity. See MCL 777.43(2)(a); MCL 777.16d (outlining various assaultive crimes as crimes against a person). Each of these crimes involved separate acts. Therefore, the carjacking and armed-robbery offenses were part of a pattern of felonious criminal activity involving three or more crimes against a person. The trial court did not clearly err in assessing 25 points for OV 13.
V. SUFFICIENCY OF THE EVIDENCE-RECEIVING OR CONCEALING STOLEN PROPERTY
Defendant next argues that the prosecution presented insufficient evidence for the jury to find beyond a reasonable doubt that he committed the crime of receiving or concealing stolen property. We disagree.
We review de novo defendant's challenges to the sufficiency of the evidence supporting his convictions. People v Speed, 331 Mich.App. 328, 331; 952 N.W.2d 550 (2020). "In examining the sufficiency of the evidence, this Court reviews the evidence in a light most favorable to the prosecutor to determine whether any trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt." Id. (quotation marks and citation omitted). We must resolve all conflicts in the evidence in favor of the prosecution. People v Smith, 336 Mich.App. 297, 303; 970 N.W.2d 450 (2021). Additionally,
[a] reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict. The scope of review is the same whether the evidence is direct or circumstantial. Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime. It is for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded those inferences. [Id. (quotation marks and citation omitted; emphasis omitted).]
The elements of receiving or concealing stolen property include:
(1) the property was stolen; (2) the value of the property met the statutory requirement; (3) defendant received, possessed, or concealed the property with knowledge that the property was stolen; (4) the identity of the property as being that previously stolen; and (5) the guilty actual or constructive knowledge of the defendant that the property received or concealed was stolen. [People v Pratt, 254 Mich.App. 425, 427; 656 N.W.2d 866 (2002).]
At the outset, we note that the prosecution argues that defendant was convicted under an aiding and abetting theory. However, the jury was not instructed to consider the charge of receiving or concealing stolen property under an aiding and abetting theory. This is in contrast to armed robbery, carjacking, and first-degree premeditated murder, which the court expressly instructed the jury to consider under an aiding and abetting theory. Nor did the prosecutor argue at trial that the jury should consider the crime under an aiding and abetting theory. Instead, he pointed out that defendant was found at the Charger moving items from the trunk to the front porch of the nearby house. Therefore, defendant was convicted as the principal for this crime.
Defendant only challenges the possession element on appeal. The verb "possess" generally requires an element of control. See People v Flick, 487 Mich. 1, 12; 790 N.W.2d 295 (2010) (defining the term "possession" in the context of another criminal statute as" '[t]o have in one's actual control; to have possession of' ") (citation omitted; alteration in original). Proof of possession may be through direct or circumstantial evidence, and the issue of possession is a factual issue to be decided by the jury. Id. at 14. See also M Crim JI 26.2(3) (defining possession in the context of receiving or concealing stolen property as "to knowingly have or hold property under your control").
Defendant argues that his connection with the Charger was too fleeting for the prosecution to establish that he ever possessed the vehicle. However, a rational trier of fact could find that the possession element was proven beyond a reasonable doubt. The receiving or concealing stolen property conviction related specifically to the Charger. Defendant acknowledged during a police interview that he removed items out of the trunk of the Charger and moved them to the porch of a house, and the police officer who arrested defendant also saw defendant taking these actions.
Defendant does not cite any caselaw that places a particular time frame on how long a person must exercise control over an item to be deemed to have possessed the item. It is also not clear from the record exactly how defendant obtained possession of the Charger from Holmes or whether defendant drove the vehicle at any point. Regardless, the record supported that defendant had actual possession of the Charger for a long enough time to take the car from Holmes (who left the area surrounding the Charger before the police arrived), enter the trunk of the vehicle, remove items, and take those items to the porch of a home. Under these circumstances, a trier of fact could find, beyond a reasonable doubt, that defendant exercised control over the Charger. Therefore, sufficient evidence supported defendant's conviction of receiving or concealing stolen property.
VI. RECEIVING OR CONCEALING STOLEN PROPERTY-LEGAL ARGUMENT
Defendant next argues that the jury could not convict him of receiving or concealing stolen property when he was also convicted of being the thief under an aiding and abetting theory. We disagree.
In general, issues that are raised, addressed, or decided will be preserved for appellate review. Glasker-Davis v Auvenshine, 333 Mich.App. 222, 227-228; 964 N.W.2d 809 (2020); People v Wiley, 324 Mich.App. 130, 150; 919 N.W.2d 802 (2018) (applying the same general standard in the context of a criminal case). Defendant acknowledges on appeal that he did not raise the legal challenge to his receiving or concealing stolen property conviction in the trial court. Therefore, this issue is unpreserved.
We generally review legal issues de novo. People v Jemison, 505 Mich. 352, 360; 952 N.W.2d 394 (2020). However, because defendant did not preserve his legal challenge to the receiving or concealing stolen property charge, the issue is reviewed for plain error affecting defendant's substantial rights. See People v Serges,__Mich App__,__;__NW3d__ (2024) (Docket No. 355554); slip op at 15." 'To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.'" Id. at__; slip op at 15, quoting People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). "To establish that a defendant's substantial rights were affected, there must be 'a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.'" Serges, __ Mich.App. at__; slip op at 15, quoting Carines, 460 Mich. at 763." 'Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence.'" Serges__, Mich.App. at__; slip op at 15, quoting Carines, 460 Mich. at 763.
Defendant relies on this Court's pre-November 1, 1990 opinion in People v Newby, 82 Mich.App. 489; 266 N.W.2d 492 (1978), superseded by statute as explained in People v Hastings, 422 Mich. 267, 270-271 (1985), which is not strictly binding on this Court. See MCR 7.215(J)(1); People v Haynes, 338 Mich.App. 392, 414 n 1; 980 N.W.2d 66 (2021).
In Newby, the defendant was convicted of receiving or concealing stolen property, as well as breaking and entering an occupied dwelling with the intent to commit a larceny, MCL 750.110. Newby, 82 Mich.App. at 490. The defendant and his accomplice broke into the victim's apartment and stole a television. Id. It was not clear which individual actually removed the stolen property from the apartment. Id. A witness saw the defendant handing the television to his accomplice, who carried it to another apartment in the same building. Id. at 490-491. The police searched the apartment where the television was taken, found the television in a closet, and arrested the defendant. Id. at 491. On appeal, this Court noted that the purpose of the receiving or concealing stolen property statute is not to punish the individual who actually commits the theft, or who participated as an accessory after the fact, but to punish those who assist him or her in converting the property to their own use. Id. at 491-492. This Court concluded that the only evidence presented at trial was that the defendant participated in the actual theft of the television. Id. at 493. Therefore, this Court held that there was no evidence that the defendant received or concealed stolen property. Id.
At the time Newby was decided, the seminal case on this subject was People v Kyllonen, 402 Mich. 135; 262 N.W.2d 2 (1978), superseded by statute as stated in Hastings, 422 Mich. at 270271. In Kyllonen, the Michigan Supreme Court held that under the version of the receiving or concealing stolen property statute that existed at the time, an individual could not be convicted of receiving or concealing property that the individual stole. Id. at 148.
However, in People v Hastings, 422 Mich. 267, 268, 270-271; 373 N.W.2d 533 (1985), which was issued several years after Newby, the Michigan Supreme Court outlined a recent amendment to the receiving or concealing stolen property statute, which broadened the language to include individuals who possess or conceal stolen property. The previous language only included buying, receiving, or aiding in the concealment of stolen property. Id. at 269. The change in the language made it possible that an individual could be both a thief of the property and a possessor of the same stolen property. Id. at 270-271. While the receiving or concealing stolen property statute has been amended several times since the Michigan Supreme Court decided Hastings in 1985, the key language of "possess" and "conceal" remains in the statute. See MCL 750.535, as amended by 2014 PA 221. Thus, under Hastings, defendant could be convicted as both the individual who committed the larceny, under an aiding and abetting theory, and for possessing the same stolen property under the receiving or concealing stolen property statute. No plain error occurred.
VII. HEARSAY EXCLUSION-CONSPIRACY
Defendant next argues that the trial court abused its discretion by admitting Holmes's hearsay statements regarding the conspiracy via Streeter's testimony without independent proof of a conspiracy to commit first-degree murder. Defendant has waived appellate review of the issue by failing to provide this Court with the recordings of his jail calls with Holmes and Streeter at this Court's request, which are a critical piece of independent evidence of the conspiracy. As the prosecution notes in its brief on appeal, the majority of the jail calls were admitted into evidence as Exhibits 83, 87, 88, and 90, and were played for the jury before Streeter testified about Holmes's statements in furtherance of the conspiracy. The jail calls were critical evidence regarding whether independent proof of the conspiracy existed. Therefore, defendant waived appellate review because defendant did not produce the jail calls at this Court's request. See Elston, 462 Mich. at 762; Reed, 265 Mich.App. at 160-161.
VIII. SUFFICIENCY OF THE EVIDENCE-CARJACKING
Defendant next argues that there was insufficient evidence to support his conviction of carjacking because the only evidence connecting him with the carjacking was Deputy Chief Stager's speculative testimony about the surveillance footage. We disagree.
The carjacking statute provides, in relevant part:
(1) A person who in the course of committing a larceny of a motor vehicle uses force or violence or the threat of force or violence, or who puts in fear any operator, passenger, or person in lawful possession of the motor vehicle, or any person lawfully attempting to recover the motor vehicle, is guilty of carjacking, a felony punishable by imprisonment for life or for any term of years.
(2) As used in this section, "in the course of committing a larceny of a motor vehicle" includes acts that occur in an attempt to commit the larceny, or during commission of the larceny, or in flight or attempted flight after the commission of the larceny, or in an attempt to retain possession of the motor vehicle. [MCL 750.529a(1)-(2).]
Defendant was not the principal actor, and the prosecution pursued an aiding and abetting theory. Aiding and abetting is not a separate substantive crime, but rather, is a theory of prosecution that allows the trier of fact to impose vicarious liability on accomplices. People v Robinson, 475 Mich. 1, 6; 715 N.W.2d 44 (2006). The elements of aiding and abetting include:
(1) the crime charged was committed by the defendant or some other person; (2) the defendant performed acts or gave encouragement that assisted the commission of the crime; and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time that [the defendant] gave aid and encouragement. [People v Bennett, 290 Mich.App. 465, 472; 802 N.W.2d 627 (2010) (quotation marks and citation omitted).]
See also MCL 767.39 ("Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.").
Defendant does not dispute on appeal that a carjacking occurred or that sufficient evidence existed that Holmes was the principal carjacker. Instead, he challenges whether sufficient evidence supported that defendant performed acts that assisted Holmes to commit the carjacking. We conclude that it did. The evidence supported that defendant shadowed the victims in his red Dodge Challenger and drove Holmes to the BP gas station. The shooter was depicted on the videotape footage leaving the area of the Challenger and holding what appeared to be a handgun. Defendant admitted to being with Holmes on the night of the incident and to going to both Eastland Mall and the BP gas station. Defendant's Challenger was later found across the street from Rogers's Dodge Charger, and defendant was found taking items out of the Charger. He later acknowledged taking the items from the Charger and placing them on the porch. Following the incident, defendant asked Streeter to go to the area on Moross and find his keys to his Dodge Challenger. He told her to sell his cell phone, which she did. Under the circumstances, there was sufficient evidence that defendant assisted with the carjacking by shadowing the victims and driving Holmes to the carjacking scene, where he aided Holmes to gain a better vantage point before the carjacking.
On appeal, defendant challenges Deputy Chief Stager's testimony about the surveillance footage. He claims the evidence was speculative because Deputy Chief Stager could not have clearly seen the Challenger in the surveillance footage. But as discussed earlier, Deputy Chief Stager's testimony was admissible as a lay opinion under MRE 701. As far as the quality of the videotape footage, as noted earlier, defendant has waived his challenge because he failed to provide this Court with a copy of the footage on request. Also, Deputy Chief Stager acknowledged during his testimony some of the limitations of the video. For example, he noted that only some of the surveillance footage was clear enough to show the red color of the Challenger. On crossexamination, he acknowledged that he could not see the license plate or the individual inside the Challenger through the surveillance footage. The jurors were able to consider the limitations in the footage during deliberations. Therefore, viewing the evidence in the light most favorable to the prosecution, sufficient evidence supported that defendant assisted in the carjacking.
Finally, sufficient evidence supported that defendant intended the commission of the crime or at least had knowledge that Holmes intended its commission for the reasons discussed earlier. The videotape recordings showed the Challenger shadowing the Charger and moving in an unusual manner by pulling in and out of the driveway to the nearby apartment complex before the carjacking. The Challenger left the area shortly after the carjacking. For these reasons, sufficient evidence supported defendant's conviction of carjacking under an aiding and abetting theory.
IX. SUFFICIENCY OF THE EVIDENCE-ARMED ROBBERY
Defendant also argues that there was insufficient evidence connecting him with the armed robbery to support his conviction under an aiding and abetting theory. We disagree.
The elements of armed robbery include:
(1) the defendant, in the course of committing a larceny of any money or other property that may be the subject of a larceny, used force or violence against any person who was present or assaulted or put the person in fear, and (2) the defendant,
in the course of committing the larceny, either possessed a dangerous weapon, possessed an article used or fashioned in a manner to lead any person present to reasonably believe that the article was a dangerous weapon, or represented orally or otherwise that he or she was in possession of a dangerous weapon. [People v Chambers, 277 Mich.App. 1, 7; 742 N.W.2d 610 (2007).]
See also MCL 750.529(1) (explaining that an individual is guilty of armed robbery if the individual engages in a robbery, as outlined in the theft statute, MCL 750.530, and, among other things, possess a dangerous weapon during the robbery). Defendant was convicted under an aiding and abetting theory.
The armed-robbery charge related to the taking of Thompson's purse and iPhone, which were in the Charger. Defendant does not challenge that the armed robbery occurred. Instead, as with the carjacking conviction, he challenges whether sufficient evidence supported that he assisted Holmes to commit the armed robbery and acted with the requisite mental state. For the reasons discussed earlier, sufficient evidence supported that defendant performed acts that assisted Holmes to commit the crime when he tailed the victims in his car, took Holmes to the gas station, and maneuvered his car so that Holmes could gain a better vantage point to commit the carjacking and armed robbery. Finally, for the reasons discussed earlier in relation to the carjacking conviction, sufficient evidence supported that defendant intended the commission of the crime or, at the very least, acted with knowledge that Holmes intended its commission. Therefore, examining the evidence in the light most favorable to the prosecution, the jury could find the essential elements of armed robbery were proven beyond a reasonable doubt.
X. SUFFICIENCY OF THE EVIDENCE-FIRST-DEGREE PREMEDITATED MURDER
Next, defendant argues that the prosecution presented insufficient evidence at trial to establish defendant's intent to kill Thompson to support his conviction of first-degree premeditated murder under an aiding and abetting theory. Defendant has waived appellate review of this issue. As discussed earlier, evidence tying defendant to Thompson's murder included the recordings of a series of jail calls between defendant, Streeter, and Holmes.
On March 18, 2024, our Clerk of Court's Office advised defense counsel that a number of trial exhibits including recorded phone calls had not been received by the Court. The letter stated, inter alia, "Any issue raised which requires consideration of these materials may be deemed waived unless the missing items are provided to the Court within 21 days of this letter." (Emphasis in original). See Elston, 462 Mich. at 762; Reed, 265 Mich.App. at 160-161. Because the jail calls are critical to whether defendant intended to kill Thompson or acted with knowledge of Holmes's intent to kill Thompson, we deem the issue waived on appeal.
Even though this issue is waived for the reasons set forth above, we conclude that were we to address this claim of error, it is without merit because there was more than sufficient evidence admitted to establish defendant's guilt of first-degree murder on an aiding and abetting theory.
To establish first-degree premeditated murder, the prosecution must establish the following elements beyond a reasonable doubt:" '(1) the intentional killing of a human (2) with premeditation and deliberation.'" People v Oros, 502 Mich. 229, 240; 917 N.W.2d 559 (2018) (citation omitted). The offense involves" '[m]urder perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing.'" Id. (alteration in original), quoting MCL 750.316(1)(a). Premeditation and deliberation are defined as follows:" '[t]o premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem.'" Oros, 502 Mich. at 240 (citation omitted; alteration in original). Premeditation and deliberation may be inferred from all the facts in the case. Id. at 241-242. It is the role of the factfinder to determine whether the time span between the perpetrator's initial homicidal intent and the actual killing was sufficient to allow the perpetrator to have subjected his action to a "second look." Id. at 242. A defendant may be found vicariously liable for murder under an aiding and abetting theory. Bennett, 290 Mich.App. at 472.
Sufficient evidence supported defendant's first-degree premeditated murder conviction under an aiding and abetting theory. First, there was sufficient evidence for the jury to find, beyond a reasonable doubt, that Thompson was intentionally killed. Rogers testified that he was with Thompson when she was murdered. The two walked toward Thompson's yard and were getting into their cars that morning to go to work. Rogers bent down into his vehicle and heard gunshots. He looked up and saw someone standing behind the garage shooting at them. As they ran down the driveway, Rogers heard several more gunshots, and Thompson fell. Rogers saw the shooter aim at Thompson's head and fire several more gunshots. Rogers saw that Thompson had been shot in multiple places. Rogers saw the shooter walking away calmly. This evidence supported that Thompson was intentionally killed.
The evidence supported that Holmes was the shooter and that he acted with premeditation and deliberation. The evidence supported that Holmes, Streeter, and defendant plotted Thompson's death well in advance through a series of in-person jail visits and jail calls. Identity is a necessary element of every crime. People v Yost, 278 Mich.App. 341, 356; 749 N.W.2d 753 (2008). As far as Holmes's identity as the shooter, a DNA test of a garbage can outside of Thompson's home revealed very strong support that Holmes's DNA was part of the sample. Also, Streeter testified in detail that she conspired with Holmes and defendant to commit the murder, and that Holmes was the shooter. Holmes told Streeter shortly after the murder that he shot Thompson and killed her. Therefore, sufficient evidence supported Holmes's identity as the shooter and that he acted with the required mental state.
Second, sufficient evidence existed that defendant engaged in acts that assisted Holmes to commit the murder. After the carjacking, Rogers received about 10 telephone calls from a private telephone number. The person offered Rogers money if Rogers and Thompson did not appear in court. Rogers and Thompson did not appear at the first preliminary-examination date. Thompson eventually testified at an October 3, 2018 preliminary examination, where she identified defendant as the person who carjacked her. According to Streeter, defendant was angry because Thompson testified against him and he was bound over to the circuit court for trial in the carjacking case. Defendant told Streeter during an in-person meeting that Thompson "had to go," which Streeter believed meant that Thompson had to die. They created a plan for Holmes to kill Thompson. There was no discussion about money or anything else that would otherwise suggest that defendant's plan was limited to bribery.
Defendant actively participated in the plan by mailing a handwritten letter to the home of Streeter's mother, containing what defendant represented was Thompson's address. Streeter lost that letter, so defendant mailed another one about a week later. During the evening of October 8, 2018, Holmes went to Streeter's house. The two spoke with defendant over the phone. Streeter gave Holmes the address to Thompson's house during that visit. As such, sufficient evidence established that defendant assisted in the murder by providing Streeter and Holmes with Thompson's address and further directions to Holmes and Streeter.
Streeter's testimony established that defendant intended Thompson's murder. Streeter testified that defendant told her during an in-person meeting shortly after Thompson testified against him at his preliminary examination that Thompson "had to go." Streeter testified that she and the defendant discussed the plan for Holmes to kill Thompson. Streeter also testified that defendant asked her to give Holmes the address so that Holmes could kill Thompson. Streeter visited defendant after the murder and informed him that Thompson had been killed. Defendant appeared relieved, rather than surprised or upset.
Based on this evidence, the jury could reasonably infer that defendant either intended to kill Thompson, or assisted Holmes by providing him with Thompson's address with knowledge that Holmes intended to kill Thompson. Therefore, the prosecution presented sufficient evidence at trial for the jury to find, beyond a reasonable doubt, that defendant committed first-degree premeditated murder on an aiding and abetting theory. As a result, even if this issue were not waived, it would have no merit.
XI. SUFFICIENCY OF THE EVIDENCE-CONSPIRACY
Defendant next argues that the prosecution presented insufficient evidence at trial to convict him of conspiracy to commit first-degree premeditated murder because there was no evidence of a conspiracy before or after Thompson testified at the preliminary examination. Once again, we conclude that defendant has waived appellate review of this issue by failing to provide the jail calls at this Court's request. As with defendant's first-degree premeditated murder conviction, we cannot review the sufficiency of the evidence supporting defendant's conspiracy conviction without the recordings of his jail calls, which were critical evidence that the prosecution admitted to tie defendant with Thompson's murder and establish the existence of a conspiracy. The existing record is not sufficient to allow for a full review of the issue, which essentially bears on defendant's intent. Therefore, we deem this issue waived. See Elston, 462 Mich. at 762; Reed, 265 Mich.App. at 160-161.
XII. JURY INSTRUCTION ON CONSPIRACY
Defendant argues in his Standard 4 brief for both appeals that the trial court erred by instructing the jury that the conspiracy to commit first-degree premeditated murder began on September 23, 2018, and continued until October 9, 2018. We once again conclude that defendant has waived appellate review by failing to produce the jail call recordings for this Court 's review. The jail call recordings are important evidence shedding light on the nature and duration of the conspiracy. The prosecution argued in the trial court that the jail calls supported that the conspiracy started even before Thompson testified at the October 3, 2018 preliminary examination. We cannot review whether the evidence supported that position without the jail call evidence. Therefore, we deem this issue waived on appeal. See Elston, 462 Mich. at 762; Reed, 265 Mich.App. at 160-161.
XIII. M CRIM JI 10.5
Finally, defendant argues in his Standard 4 brief for both appeals that the trial court erred by failing to instruct the jury under M Crim JI 10.5, and by admitting evidence relating to Holmes during defendant's trial. We disagree.
We review de novo a claim of instructional error. People v Kowalski, 489 Mich. 488, 501; 803 N.W.2d 200 (2011). We will consider the jury instructions as a whole to determine whether an error occurred. Id. Additionally, the trial court's decision whether a jury instruction applies to the facts of the case is reviewed for an abuse of discretion. People v Thigpen, Mich. App__,__;__ NW3d__(2023) (Docket No. 360351); slip op at 5. "A trial court abuses its discretion when it selects an outcome that does not fall within the range of reasonable and principled outcomes." People v Dixon-Bey, 321 Mich.App. 490, 496; 909 N.W.2d 458 (2017) (quotation marks and citation omitted). Even if the jury instruction is not perfect, "reversal is not warranted if the 'instructions fairly presented the issues to be tried and sufficiently protected the defendant's rights.'" Thigpen, __Mich App at__; slip op at 5 (citation omitted).
Also, when an error occurs, we examine a preserved instructional error for a miscarriage of justice under "a 'more probable than not'" standard. People v Houthoofd, 487 Mich. 568, 587; 790 N.W.2d 315 (2010). See also MCL 769.26 ("No judgment or verdict shall be set aside or reversed or a new trial be granted . . . on the ground of misdirection of the jury . . . unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice."). An error is deemed to be out come determinative when it undermines the reliability of the jury's verdict. Houthoofd, 487 Mich. at 587." 'In making this determination, the reviewing court should focus on the nature of the error in light of the weight and strength of the untainted evidence.'" People v Lyles, 501 Mich. 107, 118; 905 N.W.2d 199 (2017) (citation omitted). The emphasis is on whether the instructional error impacted the jury's verdict, as opposed to whether it impacted the defense of the case. Id. at 123-124.
To the extent that defendant is also raising a challenge to the admission of certain evidence regarding Holmes at trial, this issue is reviewed for an abuse of discretion. People v Katt, 468 Mich. 272, 278; 662 N.W.2d 12 (2003). However, when the issue involves a preliminary question of law, this Court reviews that legal issue de novo. Id. The trial court abuses its discretion by admitting evidence that is legally inadmissible. Id. at 278.
A criminal defendant has a right to a jury that is instructed properly. People v Montague, 338 Mich.App. 29, 37; 979 N.W.2d 406 (2021)." '[T]he trial court is required to instruct the jury concerning the law applicable to the case and fully and fairly present the case to the jury in an understandable manner.'" Id. (quotation marks and citation omitted; alteration in original). In addition to including the elements of the charged offenses, the jury instructions should also include the issues, theories, and defenses that the evidence support. Id.
At all relevant times, M Crim JI 10.5 provided:
(1) Each defendant in this case is entitled to have his guilt or innocence decided individually. You must decide whether each defendant was a member of the alleged conspiracy as if he were being tried separately. To determine whether
each defendant was a member of the alleged conspiracy, you must decide whether each individual defendant intentionally joined with anyone else to commit__. In conspiracy cases it is often difficult to decide each defendant's case on its own because of the amount of evidence that is admitted against the other defendants. [If any evidence was limited to (one defendant / some defendants) you should not consider it as to any other defendants.]
(2) It is not enough to find that there was a criminal agreement to commit __. Even if you do find that there was a conspiracy, you must still determine whether each defendant separately was a member of that conspiracy.
Outside of the presence of the jury, the parties discussed the jury instructions with the court. In relevant part, defense counsel argued that the jury instruction for conspiracy must include an instruction that the case must be considered with regard to each defendant. Counsel argued there was no evidence that defendant discussed murdering Thompson with Streeter or Holmes. The prosecutor argued that there was evidence that defendant plotted to kill Thompson if she testified against him, and an October 8, 2018 jail call between defendant and Holmes indicated that they were plotting Thompson's murder. The court ruled that the issue of how the jail calls should be interpreted was a question of fact for the jury. The court ruled, however, that the court could not instruct the jury to consider each defendant individually because Holmes was not tried with defendant.
We agree with the trial court's analysis. First, the language of M Crim JI 10.5 indicates that it applies when multiple defendants are tried together on a conspiracy charge. The jury instruction provides, in relevant part, "You must decide whether each defendant was a member of the alleged conspiracy as if he were being tried separately." M Crim JI 10.5. The jury instruction later instructs that the jurors must conclude that "each defendant separately was a member of that conspiracy." Id. M Crim JI 10.5 cites as a reference People v Heidt, 312 Mich. 629, 645; 20 N.W.2d 751 (1945), which was a case involving the issue of numerous defendants tried together on a conspiracy charge. The jury instruction also cites People v Garska, 303 Mich. 313, 318-319; 6 N.W.2d 527 (1942), which involved the issue whether the defendant should have had a separate trial from his codefendants on a conspiracy charge. These cases support the trial court's conclusion that the jury instruction applies only when two or more coconspirators are tried together. Because defendant and Holmes had separate trials, the jury instruction did not apply in defendant's case.
Also, the court's instructions addressed defendant's concern that the jury would improperly attribute Holmes's actions to him. The court instructed the jury that the jurors could only consider defendant's actions when determining if he was a member of the conspiracy. The court instructed the jury that defendant was not responsible for the acts of other members of the conspiracy unless they were part of the agreement or done to further the purpose of the conspiracy. These instructions adequately informed the jury that the jurors were required to consider defendant's actions when determining whether he was a participant in the conspiracy, but that defendant was responsible for Holmes's actions that furthered the purpose of the conspiracy. These instructions addressed defendant's concern that the jury failed to consider his own actions when deliberating on a verdict. See People v Mahone, 294 Mich.App. 208, 212; 816 N.W.2d 436 (2011) ("Jurors are presumed to follow their instructions, and it is presumed that instructions cure most errors"). Thus, even if the court should have instructed the jury on M Crim JI 10.5, the decision was not outcomedeterminative because it did not undermine the reliability of the jury verdict. See Houthoofd, 487 Mich. at 587.
Finally, defendant has not established that the trial court abused its discretion by admitting evidence relating to Holmes at defendant's trial, such as DNA evidence tying Holmes to the murder scene or videotape evidence from a nearby home depicting the shooter walking through the neighborhood after Thompson's murder. This evidence was relevant to establish that defendant committed the murder under an aiding and abetting theory. The prosecution was required to establish all the elements of first-degree premeditated murder, including identity. See People v Beck, 510 Mich. 1, 31 n 17; 987 N.W.2d 1 (2022) (explaining that the elements of aiding and abetting include that the defendant or another person committed the charged crime). The evidence was relevant to identify Holmes as the individual who murdered Thompson. See Yost, 278 Mich.App. at 356 (noting that "identity is an element of every offense."). Therefore, the trial court did not abuse its discretion by admitting the evidence of Holmes's identity at trial.
Affirmed.
[*]Former Court of Appeals judge, sitting on the Court of Appeals by assignment.