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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee, UNPUBLISHED December 13, 2018

v No. 339802 Wayne Circuit Court LAWRENCE ISSAC MCCREE, LC No. 16

- 008446

- 01

- FC

Defendant

- Appellant.

Before: M. J. K ELLY

, P .J., and M ETER and O’B RIEN , JJ.

P ER C URIAM

.

Defendan t appeals as of right his bench

- trial convictions of second

- degree murder, MCL 750.317, and possession of a firearm during the commission of a felony (felony

- firearm), MCL

750.227b. 1 The trial court sentenced defendant to 30 to 50 years in prison for the second

- degree

murder conviction and a consecutive two

- year term of imprisonment for the felony

- firearm

conviction. We affirm d efendant’s convictions, but remand for resentencing.

T his case arose from the fatal shooting of Deanthony Walters (the victim) on September 4, 2016, in Detroit. At a bench trial, the prosecution presented the eyewitness testimony of

defendant’s ex

- girlfr iend, Chelinda Fomby, that defendant shot the victim outside her home. Defendant’s theory at trial was misidentification. The trial court found insufficient evidence that

defendant was “ lying in wait ” to support guilt with regard to first

- degree premediated murder,

but convicted defendant of second

- degree murder and felony

- firearm. This appeal followed.

I. SEIZURE OF DEFEN DANT’S CELL ULAR TELE PHONE

First, defendant argues that the trial court erred by denying his motion to suppress based

on the seizure of his cell ular tele phone from his friend , Derrick Burgess, who was on probation. Although Burgess gave the telephone to the police, defendant appears to be arguing that this relinquishment was done under duress when the police confr onted Burgess.

1 The trial court found defendant not guilty of first

- degree premeditated murder , MCL 750.316(1)(a)

.- 2

- “To preserve an evidentiary issue for review, a party opposing the admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal.” People v

Aldrich , 246 Mich App 101, 116; 631 NW2d 67 (2001) . Defendant argued below that Burgess did not have actual or apparent authority to consent to the seizure of the tele phone. He argued that Burgess was a bailee who was holding the tele phone for defendant. The trial court denied the motion to suppress on the basis that there was no bailment, Burgess consented to giving the telephone to the police and, in addition, defendant did not have an expectation of privacy in

someone else’s home

, from where the item was taken . On appeal, defendant raises a new

argu ment

— that the police lacked reasonable suspicion to believe that Burgess was engaged in any criminal activity. Defendant’s argument is not a model of clarity, but, based on the caselaw he cites, he appears to be arguing that because of this alleged lack o f reasonable suspicion, the police should not have searched or attempted to search Burgess’s home or person. Because this argument was not raised below, it is unpreserved.

This Court reviews de novo a trial court’s ultimate decision on a motion to suppre ss because of an alleged constitutional violation. People v Mahdi , 317 Mich App 446, 457; 894 NW2d 732 (2016). Unpreserved claims of constitutional error are reviewed for plain error affecting defendant’s substantial rights. People v Morris , 314 Mich Ap p 399, 404; 886 NW2d 910 (2016).

In People v Antwine , 293 Mich App 192, 194

- 195; 809 NW2d 439 (2011), this Court

stated:

The Fourth Amendment of the United Stated Constitution and article 1, § 11 of the Michigan Constitution prohibit unreasonable searche s and seizures. The Michigan constitutional provision is generally construed to afford the same protections as the Fourth Amendment. [T]he Fourth Amendment protects people, as opposed to places or areas

. . . . Accordingly, a search for purposes of the Fourth Amendment occurs when the government intrudes on an individual’s reasonable, or justifiable, expectation of privacy. Whether an expectation of privacy is reasonable depends on two questions. First, did the individual exhibit an actual, subjective expectation of privacy? Second, was the actual expectation one that society recognizes as reasonable? Whether the expectation exists, both subjectively and objectively, depends on the totality of the circumstances surrounding the intrusion. [Citations a nd quotation marks omitted.]

“Searches and seizures conducted without a warrant are unreasonable per se, subject to several specifically established and well

- delineated exceptions.” People v Mead (On Remand)

, 320 Mich App 613, 622; 908 NW2d 555 (2017) (c itation s and quotation marks omitted). For example, “ ‘ [w] hen an officer has reasonable suspicion that a probationer subject to a search

condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is

reasonable.’ ” Mahdi , 317 Mich App at 465, quoting United States v Knights , 534 US 112, 121; 122 S Ct 587; 151 L Ed 2d 497 (2001) (emphasis added in Mahdi )

.

“Fourth Amendment protections apply only when a person has an expectation of privacy in the searched property.” Mead , 320 Mich App at 622. “The right to be free from unre asonable- 3

- searches and seizures is personal, and the right cannot be invoked by a third party.” Mahdi , 317 Mich App at 458

- 459.

For an individual to assert standing to challenge a search, the individual must have had a legitimate expectation of privacy in the place or location searched

, which expectation society recognizes as reasonable. A court determines the issue of standing by examining the totality of the circumstances, and a defendant bears the burden of establishing that he has standing. [ Id . at 45 9 (citations and quotation marks omitted ; emphasis added ).]

R elevant to the determination of standing are :

o wnership, possession and/or control of the area searched or item seized; historical use of the property or item; ability to regulate access; the tot ality of the circumstances surrounding the search; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of the expectation of privacy considering the specific facts of the case. [ Id . (citation s and quotat ion marks omitted).]

On appeal, defendant does not challenge the trial court’s finding that he did not have an expectation of privacy in Burgess’s home. A s such

, to the extent that defendant is arguing that the police had no basis to search Burgess’s hom e, d efendant does not have standing to make this
argument

. 2 In addition, defendant clearly had no expectation of privacy with regard to Burgess’s person and therefore no standing to challenge a search of him. T he trial court did not err by denying defend ant’s motion to suppress the evidence in question

.

II. ADMISSION OF PH OTOGRAPH

Next, defendant argues that reversal is required because the trial court admi tted a n allegedly prejudicial photograph of him holding a gun. We disagree.

“A decision whether to admit photographs is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.” People v Head , 323 Mich App 526 , 539

- 540; 917 NW2d 752 (2018) (citation and quotation marks omit ted). “An abuse of discretion occurs when the trial court reaches a result that is outside the range of principled

outcomes.” People v Benton , 294 Mich App 191, 195; 817 NW2d 599 (2011)

.

“A proper foundation for the admission of photographs is made if s omeone who is familiar from personal observation of the scene or person photographed testifies that the photograph is an accurate representation of the scene or person.” In re Robinson , 180 Mich App 454, 460; 447 NW2d 765 (1989). “Relevant evidence is ge nerally admissible. MRE 402. Relevant evidence means evidence having any tendency to make the existence of any fact that is

2 Although defendant had a legitimate expectation of privacy in the contents of the telephone, id

. at 458, the police obtained a search warran t before searching the contents

.- 4

- of consequence to the determination of the action more probable or less probable than it would

be without the evidence. MRE 401.” Head , 323 Mich App at 540 (quotation marks omitted). MRE 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” “All relevant evidence is prejudicial to some extent. Exclusion is required under MRE 403 only when the danger of unfair prejudice substantially outweighs the probative value of the evidence. Thus, [p]hotographic evidence is generally admissible as long as it is relevant, MRE 401, and not unduly prejudicial, MRE 403.” Head , 323 Mich App at 541 (citations and quotation marks omitted).

In this case, a prop er foundation for the admission of the photograph was made because Fomby, who was familiar from personal observation with defendant and the gun used in the crime, testified that the photograph accurately reflected defendant holding the gun used in the

crim e. See In re Robinson , 180 Mich App at 460. Moreover, contrary to defendant’s assertion, the photograph of him holding a gun that was at least similar to the one used in the crime was

relevant. In People v Hall , 433 Mich 573, 580

- 581; 447 NW2d 580 (1989 ), the Michigan Supreme Court stated that “[e]vidence of a defendant’s possession of a weapon of the kind used in the offense with which he is charged is routinely determined by courts to be direct, relevant

evidence of his commission of that offense.” Th e Court noted that “to be admissible the gun seized from a defendant need only be shown to have been in the defendant’s possession and of the same kind as that used during the charged offense.” Id . at 582 n 7. See also People v

Howard , 391 Mich 597, 604; 218 NW2d 20 (1974) (“The fact that defendant had access to a

sawed

- off shotgun which at a minimum was similar to the one used in the commission of the crime is adequate at least to establish relevancy.”). Fomby testified that the photograph showed

defend ant holding the gun that she believed was used in the shooting. Therefore, the photograph

was relevant evidence that defendant committed the crime.

Further

, while the trial court did not expressly address the prejudicial effect of the photograph, the dan ger of unfair prejudice was low because defendant was tried before a judge, not a jury. See , generally, People v Parker , 319 Mich App 664, 672; 903 NW2d 405 (2017) ( discussing “trained jurist[s]” ).

The trial court did not err by admitting the photograph, and even if it had, there would be no basis for reversal because, while the trial court noted the existence of the photograph, it did not rely on the photograph in making its findings regarding the elements of the crimes. See People v Burns , 494 Mich 104 , 110; 832 NW2d 738 (2013) (citation and quotation marks omitted) (discussing the harmless

- error standard for evidentiary errors)

. There is no basis for

reversal.

III. SUFFICIENCY OF THE EVIDENCE

Defendant next argues that there was insufficient evidenc e to support his convictions. We disagree.

“This Court reviews de novo a challenge to the sufficiency of the evidence in a bench

trial.” People v Lanzo Constr Co , 272 Mich App 470, 473; 726 NW2d 746 (2006). This Court- 5

- must view the evidence “in a light most favorable to the prosecution to determine whether the trial court could have found that the essential elements of the crime were proven beyond a

reasonable doubt.” Id . at 474. In People v Solloway , 316 Mich App 174 , 180

- 181; 891 NW2d 255 (2016), this Court stated:

In determining whether sufficient evidence was presented to support a conviction, the reviewing court will not interfere with the fact

- finder’s role of deciding the credibility of the witnesses. All conf licts in the evidence must be resolved in favor of the prosecution, and circumstantial evidence and all reasonable inferences drawn therefrom can constitute satisfactory proof of the crime. [Citations omitted.]

Defendant was convicted of second

- degree mu rder and felony

- firearm. The elements of

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 dea th.” People v Bergman , 312 Mich App 471, 487; 879 NW2d 278 (2015) (citation and quotation marks omitted). “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

Bass , 317 Mich App 241, 268

- 269; 893 NW2d 140 (2016) (citation and quotation marks omitted) . “[I]dentity is an element of every offense.” Id . at 263 (citation and quotation marks omitted).

With regard to his second

- degree murder conviction, defendant on ly challenges his identity as the perpetrator. In particular, he argues that Fomby admitted that she relied in part on the way that the assailant walked to conclude that it was defendant, and said that defendant was making an angry look that she had never seen before, which suggested that maybe the assailant

was not defendant. Although Fomby had never before seen defendant make the angry facial expression that she observed , she testified that it did not make her think that it was not defendant.

She ident ified defendant based on his face, his clothing, the way he walked, and his height. While Fomby’s identification was based in part on the way that the assailant walked, she expressly testified that she saw defendant’s face. She further testified that she was close enough to defendant that he could have opened the door of the car she was occupying . There was also a streetlight illuminated over the car. The trial court found that Fomby’s testimony was credible, noting that she knew defendant and had been in a romantic relationship with him , defendant was close enough to open the door, his face was not covered, and there was a street light in close proximity to wh ere the observation was made. The court also noted that s he told the police that evening that d efendant was responsible for the shooting

. This Court will not interfere with the trial court’s credibility determination. See Solloway , 316 Mich App at 180. The evidence was sufficient to establish defendant’s identity as the person who committed the o ffense of second

degree murder.

With regard to his felony

- firearm conviction, defendant argues that the weapon used in the crime was never recovered, there was no way to determine whether the weapon that Fomby had previously seen was the one used in the c rime, and another witness could not identify the weapon used. T o convict defendant of felony

- firearm, however, it wa s not necessary for the weapon used to have been recovered or admitted at trial. Nor was the testimony of Fomby or the

other witness regar ding the weapon determinative . In Bass , 317 Mich App at 269, this Court- 6

- concluded that it was reasonable to infer that the defendant possessed a firearm during the commission of murder based on the evidence that the victim’s cause of death was a gunshot

w ound to the back of the head. In this case, the cause of the victim’s de ath was multiple gunshot

wounds

. As such, it was reasonable to infer that defendant possessed a firearm during the

com mission of second

- degree murder

.

I V. ADMISSION OF TESTIMONY REGARDING CELL ULAR TELE PHONE RECORD S

D efendant argues that the trial court erred by denying his request to exclude a police

officer’s testimony about cell ular tower activity for a cell ular tele phone used to make certain

calls in this case. We disagree.

At trial, d efendant objected to the testimony of Officer Robert Skender , arguing that his testimony called for expert testimony

, which he was not qualified to provide . The trial court

, however, permitted Skender to testify as a lay witness , sp ecifically noting that the prosecutor was not attempting to qualify the witness as an expert

. D efendant’s primary argument on appeal is that Skender’s testimony was not reliable because of the technology involved and not because of Skender’s qualification s ; this particular argument was not raised below and, therefore, is unpreserved. See Aldrich , 246 Mich App at 116

. “Unpreserved claims of evidentiary error are reviewed for plain error affecting the defendant’s substantial rights.” Benton , 294 Mich App at
202

.

MRE 701 provides:

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) helpf ul to a clear understanding of the witness’ testimony or the determination of a fact in issue.

MRE 702 provides:

If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Defendant argues that Skender’s testimony should not have been admitted because it did

not meet the requiremen ts of MRE 702. Skender’s testimony, however, was not admitted as expert testimony, but as lay witness testimony. Therefore, it was not necessary for his testimony to meet the requirements of MRE 702. Although defendant argued below that Skender’s

testim ony required expertise, he does not adequately make this argument on appeal . In other words, d efendant argues about applying MRE 702 to the testimony without even first adequately arguing about or establishing the initial step: that the testimony was “expert” testimony and not “lay witness” testimony.- 7

- Even if we interpret defendant’s argument as an argument that the testimony should have been deemed “expert” testimony, we would find no basis fo r reversal because , first, Skender did testify that he had received targeted training on “cell phone analysis and mapping

. ” In addition, with regard to the unpreserved contention about the reliability of the technology involved,

defendant’s citation to a witness in an unpublished case and his citation to a single scientific paper is inadequate to establish plain error. 3

V. DEPARTURE SENTEN CE

Defendant argues that the trial court abused its discretion by imposing a disproportionate

sentence that exceeded the minimum guidelines range. We conclude that resentencing is required because the trial cou rt departed from the sentencing guidelines range without providing adequate reasons for its departure and the extent of the departure

.

Defendant’s sentencing gu idelines range for his conviction of second

- degree murder was 162 to 270 months. The trial court departed from this range and sentenced defendant to 30 to 50 years in prison. Th is Court reviews “a trial court’s upward departure from a defendant’s

calcula ted guidelines range for reasonableness.” People v Walden , 319 Mich App 344, 351; 901 NW2d 142 (2017). The reasonableness of a sentence is reviewed for an abuse of discretion. Id

. In People v Steanhouse (On Remand) , 322 Mich App 233, 237

- 238; 911 NW2d 253 (2017), this

Court stated:

When reviewing a departure sentence for reasonableness, we must review whether the trial court abused its discretion by violating the principle of proportionality set forth in [ People v Milbourn , 435 Mich 630; 461 NW2d 1 (199 0)] . A trial court abuses its discretion if it violates the principle of proportionality test by failing to provide adequate reasons for the extent of the departure sentence imposed. . . . In such cases, this Court must remand to the trial

court for rese ntencing. [Citations and quotation marks omitted.]

I n Steanhouse (On Remand) , 322 Mich App at 238

- 240 , this Court further explained :

Under the principle of proportionality standard, a sentence must be proportionate to the seriousness of the circumstances surrounding the offense and the offender. Accordingly, the sentencing court must impose a sentence that takes

into account the nature of the offense and the background of the offender. Generally, sentences falling within the minimum sentencing guidelines range are presumptively proportionate. However, a departure sentence may be imposed

when the trial court determines that the recomme nded range under the guidelines is disproportionate, in either direction, to the seriousness of the crime. Factors

3 We also note that while the trial court stated that the cellular telephone activity “corroborated” Fomby’s testimony, the court found her identification credible based on many other factors. In addition, Officer Skender acknowledged that the location inf ormation from the telephone was

inexact.- 8

- that may be considered under the principle of proportionality standard include, but

are not limited to:

(1) the seriousness of the offense; (2) factors that were inadequately considered by the guidelines; and (3) factors not considered by the guidelines, such as the relationship between the victim and the aggressor, the defendant’s misconduct while in custody, the defendant’s expressions of re morse, and the defendant’s potential for rehabilitation.

An appellate court must evaluate whether reasons exist to depart from the sentencing guidelines and whether the extent of the departure can satisfy the principle of proportionality. Therefore, even in cases in which reasons exist to justify a departure sentence, the trial court’s articulation of the reasons for imposing a departure sentence must explain how the extent of the departure is proportionate to the seriousness of the circumstances surround ing the offense and the offender

.

The first inquiry in our reasonableness review is whether there were circumstances that are not adequately embodied within the variables used to score the guidelines. . . . [T]he guidelines remain a highly relevant consi deration in a trial court’s exercise of sentencing discretion that trial courts must consult and

take

. . . into account when sentencing. To conduct such an analysis, we must compare the stated reasons for exceeding the guidelines with the scored offense variables (OVs) to determine whether those reasons were already encompassed within the guidelines. Specifically, we must determine whether the trial court abused its discretion by imposing a departure sentence without articulating whether the guidelines a dequately took into account the conduct alleged to support the particular departure imposed. [Citations and quotation marks omitted ; second e mphasis added .]

In imposing the sentence of 30 to 50 years for the second

- degree murder conviction, the

failed to expressly provide reasons for the departure or the extent of the departure. Accordingly, the caselaw requires resentencing. Id . at 238; People v Steanhouse , 500 Mich 453, 476; 902 NW2d 327 (2017). 4

4 We note that the trial court is not precluded from imposing the same sentence on remand, as long as it provides adequate reasons for doing so.- 9

- We affirm defendant’s convictions, but remand for re sentencing consistent with this opinion. We do not retain jurisdiction.

/s/ Michael J. Kelly

/s/ Patrick M. Meter

/s/ Colleen A. O'Brien