People of Michigan v. Jessie Vornell Lewis

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 26, 2016
Plaintiff-Appellee,

v No. 324267
Wayne Circuit Court
JESSIE VORNELL LEWIS, LC No. 14-004400-FC

Defendant-Appellant.

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

PER CURIAM.

Defendant appeals by right his jury trial convictions of second-degree murder, MCL
750.317, armed robbery, MCL 750.529, and possession of a firearm during the commission of a
felony (felony-firearm), MCL 750.227b. Defendant was sentenced as a third habitual offender,
MCL 769.11, to 40 to 70 years’ imprisonment for the second-degree murder conviction, 20 to 35
years’ imprisonment for the armed robbery conviction, and two years’ imprisonment for the
felony-firearm conviction. We affirm.

Defendant asserts that insufficient evidence was adduced at trial to sustain his
convictions. Specifically, defendant challenges the absence of any evidence to suggest that he
was the shooter or that he possessed a weapon. He further contends that he was able to provide a
reasonable, alternative explanation for the cellular telephone and text messages submitted at trial.

As discussed in People v Bennett, 290 Mich App 465, 471-472; 802 NW2d 627 (2010):

This Court reviews de novo claims of insufficient evidence, viewing the
evidence in the light most favorable to the prosecution, to determine whether a
rational trier of fact could find that the essential elements of the crime were
proved beyond a reasonable doubt. Further, this Court must defer to the fact-
finder’s role in determining the weight of the evidence and the credibility of the
witnesses. “[C]onflicts in the evidence must be resolved in favor of the
prosecution.” Circumstantial evidence and reasonable inferences arising
therefrom may constitute proof of the elements of the crime. [Citations omitted.]

This Court “will not interfere with the trier of fact’s role of determining the weight of the
evidence or the credibility of witnesses.” People v Kanaan, 278 Mich App 594, 619; 751 NW2d
57 (2008).

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 The elements comprising second-degree murder are: “(1) a death, (2) the death was
caused by an act of the defendant, (3) the defendant acted with malice, and (4) the defendant did
not have lawful justification or excuse for causing the death.” People v Smith, 478 Mich 64, 70;
731 NW2d 411 (2007). “Malice is defined as the intent to kill, the intent to cause great bodily
harm, or the intent to do an act in wanton and wilful disregard of the likelihood that the natural
tendency of such behavior is to cause death or great bodily harm.” People v Goecke, 457 Mich
442, 463-464; 579 NW2d 868 (1998). “The prosecution is not required to prove that the
defendant actually intended to harm or kill. Instead, the prosecution must prove the intent to do
an act that is in obvious disregard of life-endangering consequences.” People v Werner, 254
Mich App 528, 531; 659 NW2d 688 (2002) (citation and quotation marks omitted). 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, 7-8; 742 NW2d 610 (2007).]

“The elements of felony-firearm are that the defendant possessed a firearm during the
commission of, or the attempt to commit, a felony.” People v Johnson, 293 Mich App 79, 82-83;
808 NW2d 815 (2011) (citation and quotation marks omitted).

Defendant initially challenges the absence of any eyewitness testimony or other evidence
suggesting his possession of a firearm or weapon at the scene of the crime. Defendant
acknowledged that he was present at the crime scene when certain events transpired.
Defendant’s aunt, Norma Lyte, observed defendant at the scene immediately before hearing
gunshots and the car crash and saw someone wearing the same clothing as defendant running
from the scene. Norma indicated a high degree of certainty that the person running from the
scene was defendant. Defendant’s cellular telephone was recovered from the crime scene, near
the victim’s body. A search of defendant’s residence resulted in the retrieval of the type of
ammunition consistent with that used in shooting the victim and a cellular telephone box
matching the telephone belonging to defendant and found at the crime scene. The actual weapon
used was never recovered. An analysis of defendant’s cellular telephone and records obtained
from the carrier, place defendant at the crime scene at the relevant times and serve to substantiate
his activities throughout the day leading up to the murder. Telephone calls and text messages
were exchanged between defendant and his codefendant, Jarvis Glenn, who was known to have
been with the victim during the day, suggesting the victim, Glenn and defendant were in the
same general area before the shooting occurred. The content of the text messages exchanged
between defendant and Glenn imply a plan to take the victim’s cellular telephones and an
element of planning. The cause of the victim’s death was attributable to two gunshot wounds.
While witnesses did not observe defendant with a gun at the scene, photographs of defendant on
his cellular telephone demonstrate he had access to weapons.

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 “Circumstantial evidence and the reasonable inferences it permits are sufficient to
support a conviction, provided the prosecution meets its constitutionally based burden of proof
beyond a reasonable doubt.” People v Ericksen, 288 Mich App 192, 196; 793 NW2d 120
(2010). “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.”
People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). Further, it is well established
that evidence of flight will support an inference of a defendant’s consciousness of guilt. People
v Compeau, 244 Mich App 595, 598; 625 NW2d 120 (2001). The term “flight” has been applied
to actions such as fleeing the scene of the crime, leaving the jurisdiction, running from the
police, resisting arrest, and attempting to escape from custody. People v Coleman, 210 Mich
App 1, 4; 532 NW2d 885 (1995). “[I]t is always for the jury to determine whether evidence of
flight occurred under such circumstances as to indicate guilt.” People v Unger, 278 Mich App
210, 221; 749 NW2d 272 (2008).

Ample evidence was adduced at trial that placed defendant at the scene and then fleeing
the area immediately after the vehicular crash and gunshots. Defendant’s cellular telephone was
recovered close to the victim’s body, and an analysis of the cellular telephone and the carrier
records associated with it confirm defendant’s presence in the area and his communications with
Glenn, who had been with the victim, immediately before the shooting and indicating a plan or
communications pertaining to a theft involving the victim. Evidence of where the victim’s
wounds were incurred further suggests that the victim was shot by someone outside of the
victim’s vehicle. It was undisputed that the victim was a drug dealer. Witnesses testified that
the victim had indicated problems with his business in the 24-hour period preceding his death
and that defendant worked for the victim. Taking this evidence in the light most favorable to the
prosecution, we conclude that sufficient evidence was adduced to sustain defendant’s
convictions.

Defendant also argues that there was no proof of an armed robbery because the victim’s
cellular telephones, which the prosecution contended were what the defendant intended to steal,
were not removed from the victim or his vehicle. Contrary to defendant’s argument, “a
completed larceny is no longer necessary to sustain a conviction for the crime of robbery or
armed robbery.” People v Williams, 491 Mich 164, 166; 814 NW2d 270 (2012).

Defendant further asserts that he provided a reasonable, alternative explanation for his
presence in the area and his text messages with Glenn. This Court is not permitted to interfere
with the role of the trier of fact in determining the weight of the evidence or the credibility of
witnesses. Hardiman, 466 Mich at 428; Kanaan, 278 Mich App at 619. Further, inconsistent
witness testimony does not render the evidence insufficient because such issues were for the jury
to resolve in determining the credibility of the witnesses. People v Smith, 205 Mich App 69, 72
n 1; 517 NW2d 255 (1994). Based on the requirements that this Court “draw all reasonable
inferences and make credibility choices in support of the jury verdict,” People v Nowack, 462
Mich 392, 400; 614 NW2d 78 (2000), defendant’s challenges to the sufficiency of the evidence
premised on the credibility of witnesses are without merit.

For the same reasons asserted regarding his claim of insufficient evidence, defendant
argues that the verdict was contrary to the great weight of the evidence. “An appellate court will
review a properly preserved great-weight issue by deciding whether the evidence preponderates

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so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to
stand.” People v Cameron, 291 Mich App 599, 617; 806 NW2d 371 (2011). In this case,
defendant failed to preserve this issue because he did not raise it in a motion for a new trial.
People v Musser, 259 Mich App 215, 218; 673 NW2d 800 (2003). Consequently, our review is
for plain error affecting defendant’s substantial rights. Id.

As discussed when addressing defendant’s claim regarding the sufficiency of the
evidence, defendant acknowledged being in the area of the shooting at the time it occurred. His
aunt, Norma, testified to seeing defendant before hearing the shots and the vehicular crash and
observing defendant running from the scene after the accident and gunshots occurred.
Defendant’s cellular telephone was recovered in close physical proximity to the victim. It was
undisputed that the victim was involved in the illegal drug trade and that he had expressed
having problems with his business shortly before his death. One witness identified defendant as
a confederate of the victim in the drug trade. Text messages and cellular telephone calls were
documented earlier in the day and immediately before the homicide between defendant and
Glenn suggesting the planning of a theft from the victim, with Glenn’s being in the company of
the victim on the day of the shooting. Live ammunition, similar in type to that used to kill the
victim, was found at defendant’s residence. The evidence did not “preponderate[] so heavily
against the verdict that it would be a miscarriage of justice to allow the verdict to stand.”
Musser, 259 Mich App at 218-219; See also Cameron, 291 Mich App at 617.

Defendant also asserts his trial counsel was ineffective for failing: (a) to comply with
defendant’s requests or to return documents to defendant or his appellate counsel, (b) to seek a
separate trial or jury from his codefendant, Glenn, (c) to object to rebuttal testimony provided by
a relative of the victim, and (d) to object to the scoring of OVs 5, 13 and 14.

Defendant failed to preserve his claim of ineffective assistance of counsel by failing to
raise the issue in a motion for a new trial or a motion for a Ginther1 hearing in the trial court.
Musser, 259 Mich App at 220-221. Therefore our review is limited to the existing record. Id.
“Whether a person has been denied effective assistance of counsel is a mixed question of fact
and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). In
general, a trial court’s findings of fact are reviewed for clear error, with questions of
constitutional law reviewed de novo. Id.

The United States and Michigan Constitutions guarantee a defendant the right to effective
assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20. To demonstrate ineffective
assistance of counsel, a defendant is required to demonstrate that “(1) counsel’s performance fell
below an objective standard of reasonableness and (2) but for counsel’s deficient performance,
there is a reasonable probability that the outcome would have been different.” People v
Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). A “reasonable probability” is defined as
a probability sufficient to undermine confidence in the outcome. Strickland v Washington, 466
US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Accordingly:

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

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 Defense counsel should be strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment. The inquiry into whether counsel’s performance was
reasonable is an objective one and requires the reviewing court to determine
whether, in light of all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent assistance. This standard
requires a reviewing court to affirmatively entertain the range of possible reasons
. . . counsel may have had for proceeding as they did. [People v Vaughn, 491
Mich 642, 670; 821 NW2d 288 (2012) (citations and quotation marks omitted).]

“Failing to advance a meritless argument or raise a futile objection does not constitute ineffective
assistance of counsel.” Ericksen, 288 Mich App at 201.

First, defendant contends that trial counsel was ineffective for not seeking an evidentiary
hearing or pursuing certain lines of questioning that he had requested. Notably, defendant fails
to provide any detail regarding these alleged omissions by his trial counsel or to elucidate their
relevance. Defendant’s failure to provide any authority or to identify evidence from the record to
support his claim constitutes an abandonment of this aspect of the issue on appeal. People v
Watson, 245 Mich App 572, 587; 629 NW2d 411 (2001) (an appellant cannot simply announce
his position and leave it for this Court to discover and rationalize the basis for his claims).

Similarly, the failure of trial counsel to turn over his file to appellate counsel does not
serve to demonstrate that counsel was ineffective at trial. Defendant’s claim is conspicuously
deficient of any details regarding the line of questioning he wished counsel to pursue or the types
of motions or documents he wished his attorney to file with the trial court. To prevail on an
ineffective assistance of counsel claim, “a defendant must overcome the strong presumption that
counsel’s performance was born from a sound trial strategy.” Trakhtenberg, 493 Mich at 52.
Counsel’s decisions as to whether to call or question witnesses and what evidence to present are
presumed to be matters of trial strategy, which this Court will not second-guess with the benefit
of hindsight. People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004).

Defendant next asserts trial counsel was ineffective for failing to obtain a separate trial or
jury from his codefendant, contending their defenses were antagonistic. As discussed in People
v Bosca, 310 Mich App 1, 44; 871 NW2d 307 (2015) (citations and quotation marks omitted):

There is no absolute right to separate trials, and in fact, a strong policy
favors joint trials in the interest of justice, judicial economy, and administration.
Severance should be granted when defenses are antagonistic. A defense is
deemed antagonistic when it appears that a codefendant may testify to exculpate
himself and to incriminate the defendant. Further, defenses must be not only
inconsistent, but also mutually exclusive or irreconcilable. In other words, the
tension between defenses must be so great that a jury would have to believe one
defendant at the expense of the other. Incidental spillover prejudice, which is
almost inevitable in a multi-defendant trial, does not suffice.

It is difficult to comprehend defendant’s contention that the defense Glenn asserted was
antagonistic, particularly given the absence of any testimony by Glenn or witnesses called on his

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behalf. The evidence demonstrates that defendant and Glenn were in the same general area at
the time of the relevant events. Evidence also established that Glenn was with the victim earlier
in the day and that Glenn and defendant exchanged cellular telephone calls and text messages
near the time of the events. Both defendant and Glenn asserted they were not perpetrators of the
crime and did not accuse each other. Hence, the defenses were not antagonistic or irreconcilable
necessitating severance of trials or a separate jury.

Defendant also argues that the inability of the jury to reach a verdict with regard to
certain charges against Glenn proves that separate juries or trials were necessary. Defendant
suggests that the guilty verdicts the jury rendered on his charges serves as a means for the jury to
“rationalize” their inability to render a verdict on the same charges with regard to Glenn.
Defendant asserts that a separate jury or trial would have forced the jury to focus on the lack of
evidence against defendant instead of obfuscating the issue of guilt caused by Glenn’s finger-
pointing. But contrary to defendant’s theory, “it is well settled that defendants are not entitled to
severance merely because they may have a better chance of acquittal in separate trials.” People v
Hana, 447 Mich 325, 350; 524 NW2d 682 (1994), amended 447 Mich 1203 (1994), quoting
Zafiro v United States, 506 US 534, 540; 113 S Ct 933; 122 L Ed 2d 317 (1993). Further, the
trial court allayed any risk of prejudice by instructing the jury to consider each defendant
separately. See Hana, 447 Mich at 351. Because defendant and Glenn did not present mutually
exclusive defenses, the use of a joint trial and jury was not prejudicial, and the jury’s ability to
assess the guilt or innocence of each defendant separately was not hindered.

Defendant next contends trial counsel was ineffective for failing to object to the brief
testimony elicited from the victim’s brother, Tyrone Thomas, identifying defendant as working
for the victim. According to defendant, trial counsel was ineffective for failing to verify that
Tyrone was not present in the courtroom during the trial in accordance with a sequestration order
before being permitted to testify. First, there is no proof to support defendant’s claim. Defense
counsel was clearly present throughout trial and had the opportunity to observe who was present
in the courtroom on a daily basis. Notably, defendant does not assert that Tyrone was present in
the courtroom during the elicitation of other evidence or testimony; he merely asserts defense
counsel failed to ascertain or verify whether he had been present. It is equally likely that given
the existence of a sequestration order, Tyrone was not in the courtroom other than while
testifying. Second, defendant contends that Tyrone’s testimony was unnecessary. Tyrone was
presented as a rebuttal witness to address defendant’s testimony that he did not know the victim
and was not involved in the victim’s illegal drug transactions. Tyrone’s testimony was limited
solely to addressing defendant’s credibility regarding his lack of familiarity with the victim.
“Rebuttal evidence is limited to refuting, contradicting, or explaining evidence presented by the
opposing party.” People v Humphreys, 221 Mich App 443, 446; 561 NW2d 868 (1997). In this
case, Tyrone’s testimony was properly admitted because it was responsive to evidence
introduced by defendant. People v Figgures, 451 Mich 390, 399; 547 NW2d 673 (1996).

Finally, defendant contends trial counsel was ineffective for failing to object to the trial
court’s scoring of OVs 5, 13 and 14.

At sentencing, defendant was assessed 15 points for OV 5. OV 5 pertains to
psychological injury to a victim’s family, with 15 points assessed “if the serious psychological
injury to the victim’s family may require professional treatment.” MCL 777.35(2). At

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sentencing a relative of the victim did testify that family members needed psychological
assistance to cope with the victim’s death. Notably, at the time of defendant’s sentencing our
Supreme Court had not issued its decision in People v Lockridge, 498 Mich 358; 870 NW2d 502
(2015). Defense counsel cannot be required to be prescient or knowledgeable regarding rulings
not yet made. See Ericksen, 288 Mich App at 201. In addition, even under Lockridge, it is
arguably not ineffective assistance for counsel to fail to object to the scoring of a variable using
judicial fact-finding. “[J]udicial fact-finding remains an important component of Michigan’s
sentencing scheme post-Lockridge.” People v Jackson (On Reconsideration), ___ Mich App
___, ___; ___ NW2d ___ (2015) (Docket No. 322350); slip op at 11. “Although the sentencing
guidelines are no longer mandatory, ‘they remain a highly relevant consideration in a trial court’s
exercise of sentencing discretion.” Id., quoting Lockridge, 498 Mich at 391. The Lockridge
Court, emphasized 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 392 n 28.

“Under MCL 777.43, the trial court must score points under OV 13 on the basis of a
defendant’s felonious acts that constitute a continuing pattern of criminal behavior. If the
sentencing offense was part of a pattern of felonious criminal activity involving three or more
crimes against a person, the trial court must score OV 13 at 25 points.” People v Bemer, 286
Mich App 26, 33; 777 NW2d 464 (2009). “When determining the appropriate points under this
variable, ‘all crimes within a 5-year period, including the sentencing offense, shall be counted
regardless of whether the offense resulted in a conviction.’ ” Id., citing MCL 777.43(2)(a). With
regard to the scoring of OV 13, defendant had a prior armed robbery conviction in 2010 in
addition to his current convictions for second-degree murder and armed robbery. A pattern of
criminal activity can be premised on multiple offenses arising from the same event or
occurrence. People v Harmon, 248 Mich App 522, 532; 640 NW2d 314 (2001). As such, the
factual basis for the scoring of this variable comprised information admitted by defendant or
found by the jury premised on the guilty verdict of two of the charged offenses and defendant’s
acknowledgment of his prior conviction. See Jackson, ___ Mich App at ___; slip op at 13 (“The
United States Supreme Court has recognized that a defendant’s admission of a prior conviction
satisfies the requirement that a sentencing enhancement be based on facts admitted by a
defendant or found by a jury.”). Therefore, the scoring of OV 13 was supported by facts
admitted by defendant and were properly considered in defendant’s total OV score. Id.

In accordance with MCL 777.44(1)(a), 10 points are assessed for OV 14 when the
“offender was a leader in a multiple offender situation.” Defense counsel did not object to
scoring of this variable, and the trial court concurred with the prosecutor that the jury’s
determination of defendant’s guilt as the shooter on the charge of second-degree murder without
a conviction of Glenn on this charge demonstrated defendant’s leadership role. “A ‘leader’ is
defined, in relevant part, as ‘a person or thing that leads’ or ‘a guiding or directing head, as of an
army or political group.’ To ‘lead’ is defined in relevant part as, in general, guiding, preceding,
showing the way, directing or conducting.” People v Rhodes, 305 Mich App 85, 90; 849 NW2d
417 (2014), citing Random House Webster’s College Dictionary (2001). Defense counsel did
not contest the scoring of OV 14, and the trial court elected to assess 10 points for this variable.
Based on the cellular telephone records and text messages, evidence was adduced demonstrating
that defendant and Glenn were acting together against the victim. Arguably, although the jury
determined defendant to be the more aggressive perpetrator by finding him to be the shooter

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based on his convictions and the failure to attain a similar determination of guilt regarding Glenn
on the murder and felony-firearm charges, it remains a leap in logic to assume that the jury,
therefore, determined defendant to be the leader in this criminal enterprise. Rather, based on the
text messages sent from Glenn to defendant and Glenn’s earlier physical proximity throughout
the day to the victim, it is equally probable that Glenn was directing the events leading to the
victim’s death. “Under the dictionary definition of leadership, we cannot conclude that merely
posing a greater threat to a joint victim is sufficient to establish an individual as a leader within
the meaning of OV 14, at least in the absence of any evidence showing that the individual played
some role in guiding or initiating the transaction itself.” Rhodes, 305 Mich App at 90. Although
the assessment of 10 points for this variable was error, it was harmless as the correction of the
scoring of this variable does not alter defendant’s guideline range. “If a scoring error does not
alter the guidelines range, resentencing is not required.” Id. at 91 (citation omitted).

Finally, defendant contends, for the same reasons alleged in conjunction with his claim of
ineffective assistance of counsel that the trial court improperly scored OVs 5, 13 and 14 based on
judicial-based fact-finding and not premised on findings by the jury or admitted by defendant.

“Under the sentencing guidelines, the circuit court’s factual determinations are reviewed
for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013). Whether the facts as found by the court are sufficient to
meet the scoring conditions prescribed by statute constitutes a legal question that is reviewed de
novo. Id. “A Sixth Amendment challenge presents a question of constitutional law that this
Court reviews de novo.” Lockridge, 498 Mich at 373.

With regard to OV 5, defendant is correct in asserting that the assessment of 15 points for
this variable was premised on judicial fact-finding following testimony by a member of the
victim’s family at sentencing. Scoring of this variable should have remained at zero points.

Contrary to defendant’s contention, however, OV 13 was correctly scored at 25 points
premised on a pattern of criminal behavior over the most recent five-year period. The jury
convicted defendant of second-degree murder and armed robbery, both constituting crimes
against a person. See Bemer, 286 Mich App at 33; MCL 777.43(2)(a). Their concurrent nature
as arising from the same transaction does not preclude the score assessed. Harmon, 248 Mich
App at 532. Defendant asserts that the inclusion of his prior armed robbery conviction in 2010
was the result of judicial fact-finding, ignoring that during trial, defendant personally
acknowledged this conviction and his guilt. As such, the assessment of 25 points for this
variable did not comprise error as it was premised on both the jury’s determinations of
defendant’s guilt and defendant’s own acknowledgement.

Defendant also argues that the assessment of points on OV 14 was in error and premised
on judicial fact-finding based on the lack of evidence or determination by the jury that defendant
assumed a leadership role in the events that transpired. We concur that, in accordance with
Rhodes, 305 Mich App at 90, the assessment of 10 points on this variable comprised error.

Using the points assessed by the trial court, defendant’s sentencing guidelines range fell
within the range of 315 to 525 months on the applicable grid. Defendant’s total prior record
variable (PRV) score was 54 points, placing him at PRV Level E. This remains unchanged.

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Defendant’s OV score was 130, placing defendant at OV level III. The elimination of 15 points
for OV 5 and 10 points for OV 14 results in a total OV score for defendant of 105. This
reduction does not affect his applicable sentencing guideline range, which remains at OV level
III, 315 months to 525 months. Because the “facts admitted by the defendant and [] facts found
by the jury were sufficient to assess the minimum number of OV points necessary for the
defendant’s score to fall in the cell of the sentencing grid under which he . . . was sentenced . . .
defendant suffered no prejudice from any error, [and] there is no plain error and no further
inquiry is required.” Lockridge¸ 498 Mich at 394-395.

Finally, we find without merit the arguments defendant presents in his Standard 4 brief.

First, defendant argues that he was denied a fair trial by the admission of firearms
evidence and a photograph of defendant holding a handgun. Defendant contends this evidence
was both irrelevant and prejudicial. We note, of course, this argument is contradictory as “all
evidence is somewhat prejudicial to a defendant—it must be so to be relevant.” People v
Magyar, 250 Mich App 408, 416; 648 NW2d 215 (2002). It is only when the probative value
relevant evidence is substantially outweighed by the danger of unfair prejudice that it may be
excluded. MRE 403; People v Herndon, 246 Mich App 371, 414, n 92; 633 NW2d 376 (2001).
As discussed already, the evidence defendant complains of was relevant. Moreover, even if the
photograph of defendant should have been excluded under MRE 403, its admission into evidence
does not warrant reversal because on examination of all other properly admitted evidence, it does
not affirmatively appear that it is more probable than not that the alleged error was outcome
determinative. People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999).

Next, defendant contends the prosecutor committed misconduct by making certain
comments during his rebuttal argument that were based on evidence admitted at trial and
responsive to defense counsel’s arguments. These remarks were not improper when evaluated in
context and in light of each party’s theory of the case, the opponent’s arguments, and the
evidence. See People v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004).

Defendant also asserts that in the same very brief rebuttal argument, the prosecutor
improperly vouched for the credibility of two witnesses by stating he believed they told the truth.
To preserve a claim of prosecutorial misconduct, a defendant must contemporaneously object
and request a curative instruction. Bennett, 290 Mich App at 475. Because these alleged errors
are unpreserved, our review is limited to ascertaining whether plain error affected substantial
rights. People v Brown, 279 Mich App 116, 134; 755 NW2d 664 (2008). Under this standard of
review, reversal is warranted only when a plain error results in the conviction of an innocent
person, or seriously affected the fairness, integrity, or public reputation of the proceedings.
Unger, 278 Mich App at 235. The prosecutor’s brief comments concerning credibility, even if
plain error, do not warrant relief under this standard. Moreover, the trial court immediately after
the prosecutor completed his rebuttal argument, began its final instructions to the jury. These
instructions included that the jury must decide the case only on the evidence properly admitted
during the trial, that it was the function of the jury to determine the credibility of witnesses and,
that the lawyers’ comments were not evidence. “Curative instructions are sufficient to cure the
prejudicial effect of most inappropriate prosecutorial statements, and jurors are presumed to
follow their instructions.” Id. (citations omitted).

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 Next, defendant claims that the trial court erred in its instruction to the jury pertaining to
the jury’s consideration of identification testimony. Defense counsel affirmatively approved the
trial court’s instructions to the jury; consequently, defendant has waived this alleged error.
Bosca, 310 Mich App at 46. Moreover, even if not waived, the trial court’s instructions read as a
whole, People v Kowalski, 489 Mich 488, 501; 803 NW2d 200 (2011), included all elements of
the charged offenses, defenses, and theories of the parties that were supported by the evidence.
See Jackson, ___ Mich App ___, slip op at 11. Thus, no plain error occurred with respect to this
jury instruction. See People v Snider, 239 Mich App 393, 420; 608 NW2d 502 (2000).

Defendant also asserts structural error occurred because the jury was sworn contrary to
the exact wording of MCR 2.511(H)(1).2 After the petit jury was impaneled, the clerk of the
court administered the following oath to the jury: “Do you solemnly swear or affirm to honestly
and truthfully try this case and to deliver your decision according to the laws and evidence of this
state?” The jury responded affirmatively in unison. Because defendant did not raise this issue
before the trial court, our review is for plain error affecting defendant’s substantial rights.
People v Allan, 299 Mich App 205, 210; 829 NW2d 319 (2013), modified People v Cain, 498
Mich 108, 128; 869 NW2d 829 (2015).

In both Allan, 299 Mich App at 208, and Cain, 498 Mich at 113, the venire was sworn to
answer truthfully regarding questions asked during the voir dire process; no further oath was
administered to the petit jury after the selection process was complete. See MCR 6.412(B), and
M Crim JI 1.4. The Allan Court found this total failure to administer an oath to the selected jury
was plain error. Allan, 299 Mich App at 211. “To avoid forfeiture of a constitutional right under
the plain-error rule, defendant must prove the following: (1) there was an error; (2) the error was
plain, i.e., clear or obvious, and (3) the plain error affected substantial rights, i.e., the outcome of
the lower-court proceedings.” Id. at 210, citing People v Carines, 460 Mich 750, 763; 597
NW2d 130 (1999). The Allan Court held that the plain error of not swearing the jury at all was a
“structural” error that satisfied the third prong for granting relief from the plain error. Id. at 218.
Without further analysis, the Allan Court also concluded that the plain error satisfied the fourth
prong necessary to grant relief from plain forfeited error.3 Specifically, the Allan Court
“conclude[d] that the trial court’s failure to administer the oath to the jury seriously affected the

2
MCR 2.511(H)(1) provides: “The jury must be sworn by the clerk substantially as follows:
Each of you do solemnly swear (or affirm) that, in this action now before the court, you will
justly decide the questions submitted to you, that, unless you are discharged by the court from
further deliberation, you will render a true verdict, and that you will render your verdict only on
the evidence introduced and in accordance with the instructions of the court, so help you God.”
3
Under the fourth prong for relief from plain error, an appellate court must exercise its discretion
in deciding whether to reverse. “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.” Carines, 460 Mich at 763 (citation, quotation marks, and brackets omitted).

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fairness, integrity, and public reputation of the judicial proceedings.” Id. Thus, Allan held that
the total failure to administer an oath to the petit jury warranted relief. Id. at 219.

In the factually similar Cain case, our Supreme Court noted that the parties agreed that
administering only the oath to the jury that precedes voir dire was an error that satisfied the first
two prongs of the plain-error rule: (1) there was an error, and (2) the error was plain, clear or
obvious. Cain, 498 Mich at 113, 117. The Court did not address whether the plain error affected
the defendant’s substantial rights because it concluded that even if it did, the Court was “not
persuaded that the trial court’s failure to properly swear the jury seriously affected the fairness,
integrity, or public reputation of the judicial proceedings in this case and [the] defendant does not
even argue that he is actually innocent.” Id. at 118-119. The Court also left unresolved whether
the error was merely a trial error of failing to comply with MCR 2.511(H)(1) or whether it was
“a structural constitutional error,” because being an unpreserved error, the “defendant must
satisfy the plain-error standard of Carines in either event.” Cain, 498 Mich at 117 n 4.
Nevertheless, the Court criticized the idea that “the structural nature of the error presumptively
establishes the fourth prong” of Carines because such presumption was inconsistent with the
Court’s holding in Vaughn, 491 Mich at 654, 667. Cain, 498 Mich at 117 n 4(e) (quotation
marks omitted).

The application of the fourth prong of the Carines plain-error test requires a court to
engage in a “case-specific and fact-intensive” analysis. Id. at 121. The Court in examining the
facts and circumstances of the case before it determined that purposes of administering an oath to
the jury were “alternatively fulfilled in large part by the trial court’s instructions prescribing the
particulars of the jurors’ duties.” Id. 122. The trial court’s instructions plus the jury’s having
twice been sworn to give truthful answers concerning their qualifications led the Cain Court to
conclude that the jury understood “the dignity and solemnity of the proceedings.” Id. at 123-124.
The Court also observed that the trial judge was “vigilant in attempting to ensure that the jury
remained fair and impartial throughout the proceedings.” Id. at 125. The Court criticized Allan
because it did not include a “fact-intensive and case-specific inquiry under the fourth Carines
prong to assess whether, in light of any ‘countervailing factors’ on the record, leaving the error
unremedied would constitute a miscarriage of justice, i.e., whether the fairness, integrity, or
public reputation of the proceedings was seriously affected.” Cain, 498 Mich at 128.

The present case is distinguished from both Allan and Cain because after being selected,
the petit jury was administered an oath, albeit one not in the exact words of MCR 2.511(H)(1):
the clerk transposed the words “laws” and “evidence.” But MCR 2.511(H)(1) by its plain terms
requires only substantial compliance with its suggested text. See Cain, 498 Mich at 124 n 6.
Consequently, it is not apparent that an error occurred in this case that was “plain, i.e., clear or
obvious.” Carines, 460 Mich at 763. Even assuming that plain error occurred, the facts and
circumstances of this case establish more strongly than those of Cain that the imperfect oath
administered to the jury “did not seriously affect the fairness, integrity, or public reputation of
the judicial proceedings.” Cain, 498 Mich at 128. The oath that was administered to the jury
together with the trial court’s instructions to the jury concerning the law and the jurors’ duties
ensured that defendant received a fair and impartial trial. Thus, leaving the alleged error
uncorrected will not result in a miscarriage of justice. Id. While defendant maintains his
innocence, the evidence presented to the jury supports its conclusion to the contrary, as discussed

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already. Defendant is not entitled to relief on the basis of the alleged imperfect jury oath
administered in this case. Id. at 121-128.

Last, defendant argues that the trial court abused its discretion by admitting certain
tracking dog evidence. While defendant cites preliminary discussion between the trial court and
counsel before the jury was selected concerning such evidence, he does not point to where in the
record it was actually admitted or explain how the alleged error was outcome determinative. See
Lukity, 460 Mich at 495-496. This issue is abandoned. Watson, 245 Mich App at 587.

We affirm.

/s/ Peter D. O'Connell
/s/ Jane E. Markey
/s/ Colleen A. O'Brien

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