People of Michigan v. Annie Marie Humphries ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 15, 2015
Plaintiff-Appellee,
V No. 320633
Wayne Circuit Court
ANNIE MARIE HUMPHRIES, LC No. 13-001382-FC
Defendant-Appellant.
Before: WILDER, P.J., and SHAPIRO and Ronayne KRAUSE, JJ.
PER CURIAM.
A jury convicted defendant of unarmed robbery, MCL 750.530,1 and first-degree home
invasion, MCL 750.110a(2). The trial court sentenced her as a fourth habitual offender, MCL
769.12, to prison terms of 6 to 20 years for the robbery conviction, and 10 to 25 years for the
home invasion conviction, to be served concurrently. Defendant appeals as of right. We affirm
defendant’s convictions and sentences, but remand for correction of the presentence investigation
report (“PSIR”) and the sentencing information reports (“SIRs”).
I
Defendant’s convictions arise out of her role in the robbery of 81-year-old Robert Jones
inside his Highland Park apartment on January 6, 2013. At trial, the prosecution’s theory was (1)
that defendant aided and abetted an unknown man who entered the victim’s apartment,
demanded money, and took $85, based on her knowledge that Jones left his apartment door
unlocked so that others could enter to assist him, and (2) that defendant decided to rob the victim
after he refused to loan her money.
According to Jones’s testimony, defendant, who lived in Jones’s apartment complex,
entered his apartment at approximately 6:00 or 7:00 p.m. by simply opening the door, which she
usually did because she was a good friend of Jones’s girlfriend, who was Jones’s caretaker.
Jones left the door open for his girlfriend because he did not have an extra key for her.
1
Defendant was charged with armed robbery, MCL 750.529. The jury convicted her of the
lesser offense of unarmed robbery.
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Defendant said to Jones, “Bob, let me have $2.00,” and Jones replied that he did not have $2.
She repeated her request, and Jones again told her that he did not have any money. Defendant
then left, closing the door behind her.
A few seconds after defendant left Jones’s apartment, the door opened again and a man
walked in. Jones did not see what the man looked like, as his face was covered with the arm of a
lighter-colored coat or jacket. The man said, “Bob, give me all of your money.” Because the
man called Jones by his name, Jones thought that he might know the man. Jones initially
thought the man was joking, but he then saw that the man had a knife in his left hand. Jones,
who was in a wheelchair, became afraid and did not want the man to get behind him, so he kept
moving to keep the man in front of him. Jones refused to give the man any money, but the man
took $85 from Jones’s pocket. Subsequently, Jones refused to accompany the man into the
hallway. The man swung the knife at him; when Jones put up his arm to keep his face from
being cut, the blade cut his right wrist. Jones then went downstairs, and a woman there
encouraged him to call the police. Highland Park Police Officers Adam Lewis and Lisa Schultz
responded to the call.
After the incident, Detective Paul Thomas, the officer in charge, spoke with the
apartment building manager, Ayana Nichols, and learned that surveillance footage was available
from cameras placed in common areas in the apartment building. The surveillance footage was
recorded on a computer system. After speaking with Nichols, Thomas did not believe that he
would be able to obtain a copy of the original footage directly from the surveillance system.
Thomas also learned that the footage would be saved for only six days before the system would
automatically record over the old footage. In order to preserve the footage, Thomas’s partner,
Detective Terrell Shaw, held his tablet up to the surveillance system’s video screen and used the
tablet to record the surveillance video; the officers believed, given the time constraints, that this
was the best way to preserve the evidence. 2
At trial, defendant moved in limine to exclude the recording under the best evidence rule.
The trial court denied defendant’s motion in limine, and the prosecution presented the recording
of the surveillance footage from the tablet. According to Thomas’s testimony, he viewed the
original version and the version recorded on the tablet, determining that they appeared to be the
2
At trial, Nichols testified that she did not believe that copies could be made from the building’s
surveillance equipment because there was no way to plug in a cord to attach it to a computer or
another recording device, and the surveillance system did not have a disc that could be removed.
Nichols contacted the corporate office and the persons who installed the system, and she was
advised that there was no way to make a direct copy of the recording. She testified that the
manner in which Officer Terrell Shaw created a copy, i.e., by recording the surveillance footage
with another device as the video played on the surveillance system, was the only known way to
produce or save a copy of the recording. Thomas admitted during his trial testimony that he did
not directly contact the company responsible for maintaining the recording equipment to ask
about obtaining a copy and acted in reliance on Nichols’s statements regarding the availability of
copies.
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same; everything that he had seen on the original system was captured by Shaw’s recording. He
did not believe that anything on the recording had been altered, and he denied changing anything
on the recording made by Shaw. The date and time on the original recording corresponded to the
date and time of the offense. Nichols viewed the copy of the recording made on Shaw’s tablet
and believed that nothing had been altered from the original version; the only difference was that
the date and timestamps were more visible on the original recording. Likewise, Nichols viewed
the recording at trial and confirmed that it was the same footage captured by the surveillance
system.
Thomas also testified regarding the events that transpired on the surveillance video.3 He
indicated that the recording showed defendant letting a person into the building, walking and
getting on an elevator with that person, entering and exiting her apartment with the same person,
and then getting on the elevator again to go to another floor. Based on the video, Thomas
testified that he believed that defendant was associated with the other person and that defendant
did not knock before entering Jones’s apartment. Thomas testified that Nichols told him that she
was only able to identify defendant in the video, not the man who was with defendant. Thomas
indicated that the recording did not show the events that occurred inside Jones’s apartment, but
the recording showed the unidentified man leaving the building on his own, without defendant.
Nichols also provided testimony regarding the activities depicted on the surveillance
video, narrating the events as the jury viewed the recording and identifying particular aspects of
the building and its layout. She explained that the recording initially showed the building’s
parking lot and a side stairwell. Next, the recording showed defendant letting someone into the
building through the side door and walking up the stairs behind the man. The video showed that
the man exited the elevator at the same time that defendant got off and followed her into an
apartment rather quickly; Nichols stated that they went into the apartment where defendant was
living with her boyfriend’s father. After staying in the apartment for a brief period, defendant
and the man left the unit and entered the elevator on the fourth floor. The man got off
somewhere between the fifth and seventh floors, while defendant rode up to the eighth floor,
where Jones lived. When the man entered the elevator, he was wearing dark clothing, but when
he exited, he was wearing a white hooded shirt. He walked down the hallway in the direction of
a stairwell, which anyone could enter without a key or swipe card. When defendant
subsequently exited the elevator, she was carrying a bag with something in it. After checking the
surveillance cameras picturing the elevators on all of the other floors, Nichols determined that
defendant and the man were the only two people who entered that particular elevator. Nichols
explained that the recording then showed defendant walking toward the end of the hallway,
where Jones’s apartment was located. Defendant entered Jones’s apartment for about 15 to 20
seconds and then walked back out, looking back to her left as she exited. Nichols then testified
that the recording showed a man in a white hooded jacket leaving Jones’s apartment and exiting
down a stairwell to a vehicle parked outside. Nichols indicated that there was video footage
showing where defendant went after she entered the elevator for the second time, but that footage
was not recorded on the tablet.
3
It does not appear from the record that Thomas provided this testimony while the jury viewed
the video.
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Lewis also testified regarding his conversation with Jones when Lewis arrived at the
location following the incident:
Q. What was the nature of the conversation you had first in the lobby?
A. Basically what had occurred. And he had stated that he believed that
another resident at the location had kind of set him up to get money stolen from
him while he was in his apartment.
***
Q. All right, now. Based on -- without telling me what he said at this
point -- based on what he told you, did you determine that there were some
persons that you wanted to try to find and speak to?
A. That is correct.
Q. And was one of those persons a female by the name of Annie
Humphries?
A. Yes.
Q. Why was that, based on what Mr. Jones told you, that you wanted to
speak to Ms. Humphries?
A. Well, he had stated that -- when I originally spoke with him -- that Ms.
Humphries had walked into his apartment unannounced, requested $2.00 to
purchase some alcohol.
He had stated that he informed Ms. Humphries that he did not have the
$2.00.
At that point he states that Ms. Humphries exited. And as soon as she had
exited his apartment door, in came Suspect 1, the unidentified black male that
basically had his face covered, and stated, knew him by name.
Told Bob, “Give me your money, Bob. Give me your money.”
And he stated basically that he felt the two of them were involved in this
together, Ms. Humphries and this unidentified suspect.
Q. And that was the reason that you wanted to speak to Ms. Humphries?
A. That’s correct.
At sentencing, the defense only identified one factual issue in the PSIR, indicating that
defendant had no recollection of the 1992 misdemeanor conviction of possession of counterfeit
bank or municipal bills that was listed under her adult history. Although the prosecution
indicated that it had no problem with the trial court striking the misdemeanor from the PSIR, the
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trial court decided not to strike the conviction because the misdemeanor did not affect
defendant’s sentencing guidelines. The court stated, “[W]e’ll note on the record here that the
defendant contests that she has this. And it’s noted, duly noted for the record so that in the future
she can challenge it if she gets information or proof that it’s not her.” Following this exchange,
the trial court noted that it only received sentencing guidelines for the first-degree home invasion
conviction, so it made a copy of the SIR for that conviction and created a second SIR for the
unarmed robbery conviction. Defendant did not raise any objections to the trial court’s scoring
of the sentencing guidelines, including the gaps between her previous convictions, which she
committed between 1992 and 2008.
After filing her claim of appeal, defendant filed three motions to remand. Her first
motion requested, inter alia, a Ginther4 hearing and an evidentiary hearing concerning the
scoring of the sentencing guidelines, which this Court denied. People v Humphries, unpublished
order of the Court of Appeals, entered November 25, 2014 (Docket No. 320633). This Court
also denied her second motion, filed in propria persona, which requested a Ginther hearing
regarding the claims raised in her Standard 4 brief. People v Humphries, unpublished order of
the Court of Appeals, entered January 9, 2015 (Docket No. 320633). Finally, this Court denied
defendant’s third motion to remand, filed through her attorney, which concerned the trial court’s
imposition of court costs. People v Humphries, unpublished order of the Court of Appeals,
entered March 31, 2015 (Docket No. 320633).
On appeal, defendant raises two issues in her principal brief on appeal and three issues in
her Standard 4 brief. We will address each issue separately.
II
Defendant first argues that the trial court erred in admitting the tablet recording of the
original video footage. She argues that this evidence was not admissible under the best evidence
rule. We disagree.
A trial court’s decision to admit or exclude evidence is reviewed for an abuse of
discretion, but any preliminary questions of law regarding the admissibility of evidence, such as
whether a rule of evidence bars admission, are reviewed de novo. People v McDade, 301 Mich
App 343, 352; 836 NW2d 266 (2013). An abuse of discretion occurs when the trial court’s
decision falls outside the range of reasonable and principled outcomes. People v Yost, 278 Mich
App 341, 353; 749 NW2d 753 (2008).
MRE 1002 provides, “To prove the content of a . . . recording, . . . the original . . .
recording . . . is required, except as otherwise provided by these rules or by statute.” Under
MRE 1003, “[a] duplicate is admissible to the same extent as an original unless (1) a genuine
question is raised as to the authenticity of the original or (2) in the circumstances it would be
unfair to admit the duplicate in lieu of the original.” MRE 1004 states, in pertinent part:
4
People v Ginther, 390 Mich. 436, 443; 212 NW2d 922 (1973).
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The original is not required, and other evidence of the contents of a . . .
recording . . . is admissible if –
(1) Originals Lost or Destroyed. All originals are lost or have been
destroyed, unless the proponent lost or destroyed them in bad faith; or
(2) Originals Not Obtainable. No original can be obtained by any
available judicial process or procedure; . . .
Here, because the original surveillance video was recorded on a system that was not
capable of being copied or preserved, and the testimony shows that the tablet recording appeared
to be the same as the original surveillance video, the tablet recording of the original video
footage qualified as other evidence of the contents of the original, and the trial court did not
abuse its discretion in admitting the tablet video under MRE 1004(2).
To the extent that defendant challenges the authenticity of the recording shown to the
jury, we also reject this argument. MRE 901(a) provides that “[t]he requirement of
authentication or identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent claims.” MRE
901(b)(1) provides that authentication or identification can be proved by witness “[t]estimony
that a matter is what it is claimed to be.” The prosecutor offered the tablet recording as evidence
of the contents of the original surveillance footage of the events surrounding the charged offense.
The evidence that the police used a tablet device to record the original surveillance video, and
the testimony of Nichols and Thomas that they viewed both versions and they appeared to be the
same, was sufficient to authenticate the tablet recording as a copy of the original. Defendant’s
contention that the recording method used by the police was questionable or unreliable does not
affect the admissibility of the evidence, but only its weight, which was for the jury to decide.
See People v Berkey, 437 Mich. 40, 52; 467 NW2d 6 (1991).
III
Next, defendant challenges the scoring of the sentencing guidelines. As a preliminary
matter, we recognize that the holdings of the Michigan Supreme Court’s recent decision in
People v Lockridge, ___ Mich ___; ___ NW2d ___ (2015) (Docket No. 149073), are now
potentially outcome-determinative as to any challenge concerning the sentencing guidelines. In
Lockridge, the Court held that “the rule from Apprendi v New Jersey, 530 U.S. 466; 120 S. Ct.
2348; 147 L. Ed. 2d 435 (2000), as extended by Alleyne v United States, 570 US ___; 133 S. Ct.
2151; 186 L. Ed. 2d 314 (2013), applies to Michigan’s sentencing guidelines and renders them
constitutionally deficient,” id. at ___; slip op at 1, meaning that “to the extent that the OVs
scored on the basis of facts not admitted by the defendant or necessarily found by the jury verdict
increase the floor of the guidelines range, i.e. the defendant’s ‘mandatory minimum’ sentence,
that procedure violates the Sixth Amendment,” id. at ___; slip op at 11. Accordingly,
[t]o remedy the constitutional violation, [the Court] sever[ed] MCL 769.34(2) to
the extent that it makes the sentencing guidelines range as scored on the basis of
facts beyond those admitted by the defendant or found by the jury beyond a
reasonable doubt mandatory. [The Court] also str[uck] down the requirement in
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MCL 769.34(3) that a sentencing court that departs from the applicable guidelines
range must articulate a substantial and compelling reason for that departure. [Id.
at ___; slip op at 2.]
The Court also stated:
[A] guidelines minimum sentence range calculated in violation of Apprendi and
Alleyne is advisory only and that sentences that depart from that threshold are to
be reviewed by appellate courts for reasonableness. To preserve as much as
possible the legislative intent in enacting the guidelines, however, we hold that a
sentencing court must determine the applicable guidelines range and take it into
account when imposing a sentence. [Id. ___; slip op at 2 (citations omitted).]
Likewise, the Court indicated that “[o]ur holding today does nothing to undercut the requirement
that the highest number of points possible must be assessed for all OVs, whether using judge-
found facts or not.” Id. at ___; slip op at 29 n 28. Therefore, we conclude that, given the
continued relevance of the scoring variables to the Michigan sentencing scheme, the standards of
review traditionally applied to the trial court’s scoring of the variables remain viable after
Lockridge.
Defendant preserved her challenges to the scoring of offense variables (“OV”) 1 and 2
and prior record variables (“PRV”) 1, 2, 5, and 6 by challenging the scoring of these variables in
a timely motion to remand.5 MCR 6.429(C); People v McChester, ___ Mich App ___; ___
NW2d ___ (2015) (Docket No. 318145); slip op at 2. When reviewing a trial court’s scoring
decision, the trial court’s “factual determinations are reviewed for clear error and must be
supported by a preponderance of the evidence.” People v Hardy, 494 Mich. 430, 438; 835 NW2d
340 (2013). “Whether the facts, as found, are adequate to satisfy the scoring conditions
prescribed by statute, i.e., the application of the facts to the law, is a question of statutory
interpretation, which an appellate court reviews de novo.” Id.
Initially, we reject defendant’s argument that the trial court’s scoring of the prior record
variables was premised on its improper consideration of prior convictions that were barred by the
10-year gap rule. MCL 777.50 provides, in relevant part:
(1) In scoring prior record variables 1 to 5, do not use any conviction or
juvenile adjudication that precedes a period of 10 or more years between the
discharge date from a conviction or juvenile adjudication and the defendant’s
commission of the next offense resulting in a conviction or juvenile adjudication.
(2) Apply subsection (1) by determining the time between the discharge
date for the prior conviction or juvenile adjudication most recently preceding the
commission date of the sentencing offense. If it is 10 or more years, do not use
5
As explained infra, to the extent that defendant raises a claim on Apprendi/Alleyne grounds,
this argument unpreserved.
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that prior conviction or juvenile adjudication and any earlier conviction or
juvenile adjudication in scoring prior record variables. If it is less than 10 years,
use that prior conviction or juvenile adjudication in scoring prior record variables
and determine the time between the commission date of that prior conviction and
the discharge date of the next earlier prior conviction or juvenile adjudication. If
that period is 10 or more years, do not use that prior conviction or juvenile
adjudication and any earlier conviction or juvenile adjudication in scoring prior
record variables. If it is less than 10 years, use that prior conviction or juvenile
adjudication in scoring prior record variables and repeat this determination for
each remaining prior conviction or juvenile adjudication until a period of 10 or
more years is found or no prior convictions or juvenile adjudications remain.
(3) If a discharge date is not available, add either the time defendant was
sentenced to probation or the length of the minimum incarceration term to the
date of the conviction and use that date as the discharge date.
(4) As used in this part:
***
(b) “Discharge date” means the date an individual is discharged from the
jurisdiction of the court or the department of corrections after being convicted of
or adjudicated responsible for a crime or an act that would be a crime if
committed by an adult.
As further discussed below, the trial court did not consider defendant’s oldest conviction,
a 1992 misdemeanor conviction for possession of counterfeit bank or municipal bills.
Defendant’s next oldest conviction was a 1992 plea-based conviction for first-degree retail fraud,
MCL 750.356c, for which she received a delayed sentence. In 1996, she was sentenced to one
year in the county jail for that conviction, and she has not had a 10-year period free of any
convictions since then. In 2004, she was convicted, after pleading nolo contendere, of larceny
from a person, MCL 750.357, and was sentenced to two years’ probation. In 2004, defendant
was also convicted of possession of less than 25 grams of a controlled substance, MCL
333.7403(2)(a)(v), and stealing, taking, or removing a financial transaction device, MCL
750.157n; she was sentenced to 60 days in jail and two years’ probation. In 2005, she was
convicted of jail escape committed by a person lawfully imprisoned for a felony, MCL
750.195(2), and sentenced to 11 months in jail. In 2008 and 2009, she was sentenced for drug
possession, MCL 333.7403(2)(a)(v), and attempted uttering and publishing, MCL 750.249, MCL
750.92, respectively. The instant offense was committed in 2013. Because defendant never had
a 10-year gap between the discharge date from a conviction and the commission date of the next
offense resulting in a conviction, the trial court did not err in considering defendant’s criminal
record dating back to her first-degree retail fraud conviction.
Defendant argues that the trial court erred in relying on a 1992 misdemeanor conviction
for possession of counterfeit bank or municipal bills to assess two points for PRV 5. See MCL
777.55(1)(e) (stating that two points should be scored if the offender has one prior misdemeanor
conviction or juvenile adjudication). Defendant challenged the accuracy of that conviction at
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sentencing. Although the prosecutor conceded that she did not have any information to verify
the conviction and agreed that it could be stricken, the trial court decided not to strike it or
change the scoring of PRV 5; instead, it noted for the record that defendant was contesting the
conviction and that the conviction did not affect defendant’s guidelines range. Because
defendant challenged the conviction, the trial court was required to make a finding regarding its
accuracy, or determine that a finding was not necessary because it was irrelevant. People v
Waclawski, 286 Mich. App. 634, 689-690; 780 NW2d 321 (2009). If information is found to be
inaccurate or irrelevant, it must be corrected or stricken from the PSIR. Id. at 690. The trial
court effectively determined that the prior misdemeanor conviction was not relevant by
concluding that “it [did not] affect the ultimate guidelines,” but it erred by refusing to strike it or
change the two-point score for PRV 5, as suggested by the prosecutor.
In the alternative, the prosecution argues that defendant’s conviction for first-degree retail
fraud, MCL 750.356c, can be used to support the two-point score for PRV 5. We disagree.
First-degree retail fraud is not a misdemeanor, but rather a class E felony. See MCL 777.16r.
Although the PSIR indicates that defendant has another misdemeanor conviction for possession
of an altered driver’s license, MCL 257.324, that conviction does not qualify for scoring under
PRV 5 because it was not an offense against a person or property, a controlled substance or
weapon offense, MCL 777.55(2)(a), or an offense arising from the operation of a vehicle while
under the influence of alcohol or a controlled substance, MCL 777.55(2)(b). Accordingly,
neither conviction could be used to support the trial court’s scoring of PRV 5.
Although the trial court erred in scoring two points for PRV 5, the error does not require
resentencing because the score does not affect defendant’s guidelines range. Defendant received
a total PRV score of 77 points, placing her in PRV Level F (75+ points) for each of her
convictions. See MCL 777.63 (home invasion); MCL 777.64 (unarmed robbery). A two-point
reduction for PRV 5 would reduce defendant’s total PRV score from 77 points to 75 points, but
would not change her placement in PRV Level F. Because the scoring error does not affect the
appropriate guidelines range, resentencing is not warranted. People v Francisco, 474 Mich. 82,
89 n 8; 711 NW2d 44 (2006). However, because the trial court effectively disregarded the prior
conviction for possession of counterfeit bank or municipal bills, defendant is entitled to have it
stricken from the PSIR, People v Thompson, 189 Mich. App. 85, 88; 472 NW2d 11 (1991),6 and
to have the two-point score for PRV 5 deleted from the SIRs for both convictions, People v
Melton, 271 Mich. App. 590, 593, 596; 722 NW2d 698 (2006), superseded by statute on other
grounds. Accordingly, we remand for that purpose.
Defendant next argues that the trial court erred in scoring 10 points for PRV 6, which
considers the offender’s status at the time of the offense. MCL 777.56(1)(c) provides that the
trial court shall assess 10 points if “[t]he offender is on parole, probation, or delayed sentence
status or on bond awaiting adjudication or sentencing for a felony.” The PSIR states that “[a]t
6
Although “[t]he failure to strike disregarded information can be harmless error,” Waclawski,
286 Mich. App. at 690, we find that remand is necessary to correct both the PSIR and the SIRs.
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the time of the within offense, the defendant was on probation for Attempt Uttering and
Publishing.” Defendant asserts that she was sentenced to two years’ probation for that offense in
2009, which would have ended before she committed the instant offense, but she has not
provided any factual support for her assertion. Although the PSIR states that defendant pleaded
guilty to attempted uttering and publishing in January 2009, and was sentenced to probation in
February 2009, the PSIR does not list the term of probation, and it indicates that defendant was
discharged without improvement after her arrest for the instant offense. “There is a presumption
that the information contained in the PSIR is accurate unless the defendant raises an effective
challenge.” People v Lloyd, 284 Mich. App. 703, 705; 774 NW2d 347 (2009). Defendant did not
challenge the accuracy of this information at sentencing. Therefore, because this unchallenged
information indicates that defendant was not discharged from probation until after she committed
the instant offense, we presume that this information is accurate and conclude that the trial court
did not err in scoring 10 points for PRV 6.
Defendant’s challenges to the scoring of PRV 1 and PRV 2 are based on her contention
that the trial court improperly scored the variables in reliance on prior convictions that could not
be considered under the 10-year gap rule, MCL 777.50. As discussed previously, there was not a
10-year gap between the discharge date of any of defendant’s prior convictions and the
commission date of the next offense resulting in a conviction.7 Thus, the trial court properly
scored PRV 1 and PRV 2.
Defendant also argues that the trial court erred in assessing five points for OV 1 and OV
2. MCL 777.31(1)(e) authorizes a five-point score for OV 1 if “[a] weapon was displayed or
implied.” The instructions provide that “[i]n multiple offender cases, if 1 offender is assessed
points for the presence or use of a weapon, all offenders shall be assessed the same number of
points.” MCL 777.31(2)(b). MCL 777.32 authorizes a five-point score for OV 2 if “[t]he
offender possessed or used a . . . knife or other cutting or stabbing weapon.” Like OV 1, the
instructions for OV 2 provide that “[i]n multiple offender cases, if 1 offender is assessed points
for possessing a weapon, all offenders shall be assessed the same number of points.” MCL
777.32(2).
Defendant argues that OV 1 and OV 2 should not have been scored because the jury
implicitly rejected the fact that a weapon was involved in the offense when it acquitted her of
7
The record indicates that 25 points were properly scored for PRV 1, MCL 777.51(1)(c)
(authorizing a score of 25 points if the offender has one prior high severity felony conviction), on
the basis of defendant’s prior conviction for larceny from a person, MCL 750.357, which is a
Class D felony, see MCL 777.16r, and, thus, qualifies as a high severity felony conviction, MCL
777.51(2)(a). In addition, 30 points were properly scored for PRV 2, MCL 777.52(1)(a)
(authorizing a score of 30 points if the defendant has four or more prior low severity felony
convictions), given defendant’s prior convictions for two counts of possession of less than 25
grams of a controlled substance, MCL 333.7403(2)(a)(v), escape from jail while serving a felony
sentence, MCL 750.195(2), attempted uttering and publishing, MCL 750.249, MCL 750.92, and
first-degree retail fraud, MCL 750.356c. See MCL 777.52(2)(a).
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armed robbery. However, whereas the jury was precluded from convicting defendant of armed
robbery absent proof beyond a reasonable doubt, facts at sentencing need only be proven by a
preponderance of the evidence. Hardy, 494 Mich. at 438. Because of the different standards of
proof, “situations may arise wherein although the factfinder declined to find a fact proven
beyond a reasonable doubt for purposes of conviction, the same fact may be found by a
preponderance of the evidence for purposes of sentencing.” People v Ratkov (After Remand),
201 Mich. App. 123, 126; 505 NW2d 886 (1993). Moreover, in interpreting the same multiple
offender language in MCL 777.31 and MCL 777.33, the Michigan Supreme Court stated, “When
the sentencing court assesses points for the first offender, it must assess the ‘highest number of
points’ that can be assessed under the statute.” People v Morson, 471 Mich. 248, 260; 685 NW2d
203 (2004). As such, in multiple offender cases, conduct attributable to another offender is
properly considered in the scoring of OV 1 and OV 2, given that the same score must be assessed
for all offenders. See id. at 252-253, 259-260. Jones testified that the man who robbed him
possessed a knife during the offense, which he used to cut the victim’s wrist. This testimony
provided a preponderance of evidence in support of the five-point scores for OV 1 and OV 2.
Hardy, 494 Mich. at 438.
Although defendant does not expressly raise a constitutional challenge on
Apprendi/Alleyne grounds to the trial court’s scoring of OV 1 and OV 2, defendant’s argument
on appeal does contend that the trial court utilized facts not found beyond a reasonable doubt by
the jury or admitted by defendant in order to score OV 1 and OV 2. Thus, to the extent that
defendant’s challenge to her sentences can be construed as an Apprendi/Alleyne claim, our
review is for plain error affecting substantial rights because “defendant did not object to the
scoring of the OVs at sentencing on Apprendi/Alleyne grounds.” Lockridge, ___ Mich at ___;
slip op at 30.
It is apparent that the trial court utilized facts that were not established by the jury’s
verdict or admitted by defendant in establishing scores for OV 1 and OV 2. And, therefore, a
constitutional error in violation of the Sixth Amendment resulted, regardless of whether this error
had a substantive effect on defendant’s sentences. Lockridge, ___ Mich at ___; slip op at 31 n
30. Nevertheless, despite this constitutional error, defendant cannot demonstrate prejudice from
the trial court’s assessment of five points for OV 1 and OV 2 because a reduction of 10 points
would not affect the appropriate guidelines range. See id. at 31 n 30 (“[W]hether [an] error
actually increases the floor of a defendant’s minimum sentence range under the guidelines is
only relevant to the question of whether the defendant has suffered any prejudice.”), 32-33, 36;
see also Francisco, 474 Mich. at 89 n 8 (“Where a scoring error does not alter the appropriate
guidelines range, resentencing is not required.”). Defendant received a total OV score of 20
points, placing her in OV Level II (10 to 24 points) on the applicable sentencing grids. MCL
777.63 (home invasion); MCL 777.64 (unarmed robbery). Even with a 10-point reduction,
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defendant’s OV score would remain in OV Level II; accordingly, defendant is not entitled to
resentencing.8
Defendant also argues that defense counsel provided ineffective assistance when she
failed to object to the aforementioned sentencing errors. We disagree.
Because defendant did not raise an ineffective assistance of counsel claim in the trial
court, and this Court denied her motion to remand for a Ginther hearing, our review is limited to
errors apparent from the record. People v Matuszak, 263 Mich. App. 42, 48; 687 NW2d 342
(2004).
Effective assistance of counsel is presumed, and defendant bears a heavy burden
of proving otherwise. To demonstrate ineffective assistance, defendant must
show: (1) that his attorney’s performance fell below an objective standard of
reasonableness, and (2) that this performance so prejudiced him that he was
deprived of a fair trial. “To demonstrate prejudice, the defendant must show the
existence of a reasonable probability that, but for counsel’s error, the result of the
proceeding would have been different.” [People v Gaines, 306 Mich. App. 289,
300; 856 NW2d 222 (2014) (citations omitted).]
Defendant cannot establish that she was prejudiced by defense counsel’s failure to object
to the trial court’s assessment of points for PRV 5, OV 1, and OV 2 because the scores did not
affect defendant’s sentencing guidelines and, as a result, did not affect the outcome of the
proceedings. Additionally, as discussed supra, PRV 1, PRV 2, PRV 6 were properly scored.
Defense counsel was not ineffective for failing to raise futile objections. People v Unger, 278
Mich. App. 210, 256; 749 NW2d 272 (2008).
IV
Defendant argues in her Standard 4 brief that by failing to produce the original
surveillance video, the prosecution violated its duty under Brady v Maryland, 373 U.S. 83; 83 S
Ct 1194; 10 L. Ed. 2d 215 (1963), to disclose all exculpatory evidence. Defendant also claims
that the police acted in bad faith when they failed to preserve potentially useful evidence in
violation of Arizona v Youngblood, 488 U.S. 51; 109 S. Ct. 333; 103 L. Ed. 2d 281 (1988), and
California v Trombetta, 467 U.S. 479; 104 S. Ct. 2528; 81 L. Ed. 2d 413 (1984). We disagree.
Although defendant objected to the admission of the tablet recording at trial, the
objection was based only on the best evidence rule; defendant did not raise a Brady issue in the
trial court or challenge whether the officers acted in good faith.9 An objection on one ground is
8
We conclude that we need not separately review defendant’s sentence for reasonableness
because defendant’s sentences did not depart from the applicable guidelines range. See
Lockridge, ___ Mich at ___; slip op at 2, 28-29, 36.
9
For the reasons previously discussed in Part II, supra, we reject defendant’s argument in her
Standard 4 brief that admission of the tablet recording violated the best evidence rule.
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insufficient to preserve an appellate challenge based on a different ground. People v Bulmer,
256 Mich. App. 33, 35; 662 NW2d 117 (2003). Accordingly, defendant’s arguments are
unpreserved, and our review is limited to plain error affecting defendant’s substantial rights.
People v Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999); People v Cox, 268 Mich. App. 440,
448-450; 709 NW2d 152 (2005). To demonstrate such an error, the defendant must show that
(1) an error occurred, (2) the error was clear or obvious, and (3) “the plain error affected [the
defendant’s] substantial rights,” which “generally requires a showing of prejudice, i.e., that the
error affected the outcome of the lower court proceedings.” Carines, 460 Mich. at 763.
There is no merit to defendant’s arguments. To establish a Brady violation, a defendant
must show that (1) the prosecution suppressed evidence; (2) the evidence is favorable to the
accused; and (3) viewed in its totality, the evidence is material. People v Chenault, 495 Mich.
142, 155; 845 NW2d 731 (2014). To establish a due process violation on the basis of a failure to
preserve evidence, a defendant must demonstrate that the state acted in bad faith and that the
evidence was potentially exculpatory. People v Heft, 299 Mich. App. 69, 79; 829 NW2d 266
(2012), citing Youngblood, 488 U.S. at 57-58.
There is no indication in the record that the police suppressed, destroyed, or lost any
evidence. On the contrary, the record shows that the police acted to preserve evidence after
discovering that the apartment building’s video surveillance system did not have a removable
disk or a connection whereby the original recording could be transferred to another recording
device, and that the system would automatically record over the original recording after six days.
A copy of that recording was provided to the defense.
Further, there is no record support for defendant’s argument that portions of the original
recording were omitted from the tablet copy. Although the date and timestamps did not clearly
appear on the tablet copy, both Nichols and Thomas testified that they viewed both versions and
that they appeared to be the same, and Thomas testified that the tablet recording contained the
entirety of the original with respect to the events surrounding the charged offense. Defendant
has not identified any evidence indicating that there were portions of the original recording that
depicted events related to the charged offense that were not included in the tablet recording; in
support of her position, she only provides a description in her Standard 4 brief of her movements
on the day of the incident, which is not supported by the evidence in the record, and notes
Nichols’s testimony confirming that video surveillance of defendant leaving the elevator for the
second time was not included in the tablet recording. Contrary to defendant’s characterization of
the officers’ purported failure to preserve portions of the surveillance video, we find no
indication of intentional suppression of evidence or bad faith in the record. See Youngblood, 488
U.S. at 58; see also People v Johnson, 197 Mich. App. 362, 365; 494 NW2d 873 (1992).
Accordingly, defendant has failed to establish that the prosecution withheld exculpatory
evidence, or that the police failed to preserve potentially exculpatory evidence in bad faith.
V
Next, defendant argues in her Standard 4 brief that it was improper for Thomas and
Nichols to testify regarding matters depicted in the video. During their testimony, the witnesses
described the layout of the building and locations depicted in the video and referred to
defendant’s appearances in the video. Defendant challenges this testimony under MRE 701,
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which provides that “[i]f [a] 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.” She also argues that the witnesses’ testimony
invaded the province of the jurors, who were able to view the video themselves to determine
what it portrayed. Defendant concedes that there was no objection to the challenged testimony at
trial. Accordingly, this issue is unpreserved, and review is limited to plain error affecting
defendant’s substantial rights. Carines, 460 Mich. at 763.
Defendant has failed to show a plain error affecting her substantial rights. First, the
witnesses’ commentary regarding the layout of the building and locations depicted in the video
was based on their perceptions of the video and their previous knowledge of the apartment
building, which was helpful for the jury to understand events depicted in the video. In this case,
Nichols and Thomas both had personal knowledge of the layout, as Nichols was familiar with the
building because she was the building manager, and Thomas was familiar with the building due
to his investigation of the offense. Additionally, it is evident that Nichols and Thomas both had
personal knowledge of the surveillance footage on the recording. MRE 602 (“A witness may not
testify to a matter unless evidence is introduced sufficient to support a finding that the witness
has personal knowledge of the matter.”). Both were in a better position than the jury to identify
the locations of events depicted in the video. This was helpful to the jury because of the multiple
views of different floors of the building. As such, their testimony was admissible under MRE
701 to help the jury understand the evidence and did not invade the province of the jury. People
v Fomby, 300 Mich. App. 46, 53; 831 NW2d 887 (2013).
Second, it was not inappropriate for Nichols to point out or identify defendant on the
recordings. As the manager at defendant’s apartment building, Nichols recognized defendant in
the video when she first viewed it after the offense. Because she was personally familiar with
defendant, her identification testimony did not invade the province of the jury, especially given
the lack of clarity in the surveillance video at certain points due to the lighting. See id. at 52-53;
United States v Rodriguez-Adorno, 695 F3d 32, 40 (CA 1, 2012).
However, because there is no indication that Thomas was familiar with defendant before
the offense, his testimony identifying defendant arguably constituted plain error. Nevertheless,
because Nichols identified defendant when she showed Thomas the video, it is apparent from his
testimony, and it would have been clear to the jury, that his references to defendant in the video
were based on Nichols’s identification testimony. As a result, even if we assume, arguendo, that
Thomas’s testimony constituted plain error, defendant has not shown that it affected the outcome
of the proceedings, as Thomas’s testimony was cumulative to, and clearly based on, Nichols’s
proper identification testimony.
Additionally, defendant argues that the trial court should not have allowed Thomas to
offer opinion testimony because his status as a police officer made his testimony particularly
persuasive. However, the trial court instructed the jury that testimony from witnesses who are
police officers is to be judged by the same standards used to evaluate the testimony of any other
witnesses. “Juries are presumed to follow their instructions.” People v Rodgers, 248 Mich. App.
702, 717; 645 NW2d 294 (2001). Accordingly, we find no plain error affecting defendant’s
substantial rights.
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VI
Finally, defendant argues in her Standard 4 brief that trial counsel was ineffective for
failing to object to inadmissible testimony. Again, because defendant did not raise an ineffective
assistance of counsel claim in the trial court, and this Court denied her motion to remand for a
Ginther hearing, our review is limited to errors apparent from the lower court record.10
Matuszak, 263 Mich. App. at 48.
Defendant argues that trial counsel was ineffective for not objecting to Nichols’s and
Thomas’s testimony regarding the building and Nichols’s identification testimony. Because we
conclude that this testimony was not improper, defense counsel was not ineffective for failing to
object. Counsel is not required to make a futile objection. People v Darden, 230 Mich. App. 597,
605; 585 NW2d 27 (1998). Moreover, even if defense counsel arguably should have objected to
Thomas’s testimony identifying defendant as one of the individuals pictured in the video,
defendant has failed to show that he was prejudiced by this purported error for the reasons stated
above. Gaines, 306 Mich. App. at 300. Therefore, defense counsel was not ineffective when she
failed to object to the lay opinion and narrative testimony.
Defendant also asserts that defense counsel was ineffective for failing to object to
Lewis’s testimony describing what Jones told him about his encounter with defendant shortly
before he was robbed. Defendant argues that the testimony constituted inadmissible hearsay. “
‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). “[A]
statement offered to show why police officers acted as they did is not hearsay.” People v
Chambers, 277 Mich. App. 1, 11; 742 NW2d 610 (2007), citing People v Jackson, 113 Mich. App.
620, 624; 318 NW2d 495 (1982). It is apparent from the context of the challenged testimony
that it was offered to explain why the police wanted to speak to defendant, not for its truth.
Under these circumstances, defense counsel’s failure to object was not objectively unreasonable.
Any objection would have been futile. Darden, 230 Mich. App. 605.
We affirm defendant’s convictions and sentences, but remand for correction of the PSIR
and SIRs in accordance with this opinion. We do not retain jurisdiction.
/s/ Kurtis T. Wilder
/s/ Douglas B. Shapiro
/s/ Amy Ronayne Krause
10
Because the record is adequate to address and resolve defendant’s ineffective assistance of
counsel claims, remand for an evidentiary hearing is not necessary.
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