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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

July 9, 2015 

V No. 320318 

Saginaw Circuit Court 

JEMARCUS JOVON WATKINS, LC No. 13-038965-FC 

 Defendant-Appellant. 

Before: O’CONNELL, P.J., and OWENS and M. J. KELLY, JJ. 

PER CURIAM. 

 Defendant, Jemarcus Jovon Watkins, appeals as of right his convictions, following a jury 

trial, of conspiracy to commit murder, MCL 750.157a and MCL 750.316(a), first-degree arson, 

MCL 750.72, conspiracy to commit first-degree arson, MCL 570.157a and MCL 750.72, 

threatening a witness, MCL 750.122(7)(c), six counts of assault with intent to commit murder, 

MCL 750.83, and five counts of possession of a firearm during the commission of a felony 

(felony-firearm), MCL 750.227b. The trial court sentenced Watkins to serve terms of life 

imprisonment for conspiracy to commit murder, 13 years to 40 years’ imprisonment for 

conspiracy to commit arson, 37 years and five months’ to 80 years’ imprisonment for arson and 

each assault, nine years and six months’ to 15 years’ imprisonment for witness threatening, and a 

consecutive term of two years’ imprisonment for his felony-firearm convictions. We affirm. 

I. FACTS 

 Jeremy Prince testified that he attended middle school and high school with Watkins, 

codefendant John Henry Granderson,1 and Anterio Patton. According to Prince, he attended a 

pre-prom party in May 2013. During the party, there was a commotion involving Patton. Phillip 

Hudson, a friend of Patton, testified that Patton and Evillis McGee “had a problem with each 

other.” According to Prince, someone fired 12 or 13 shots into the crowd during the pre-prom 

party and Ne-Ne McKinley was killed. 

 

1

 This panel is also considering Granderson’s appeal of his convictions for the same offenses. 
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 Patton’s mother testified that she was present at the pre-prom party with Patton. 

According to Patton’s mother, she had just given Patton a hug when “the crowd went to backing 

up, and I seen some guys with some guns.” The men with guns began shooting. Patton’s sister 

testified that she was also at the pre-prom party and saw Watkins, Karon Thomas, and two other 

men shoot into the crowd. 

 Saginaw City Police Detective Matthew Gerow testified that he investigated the pre-prom 

shooting. According to Detective Gerow, McGee and Thomas were charged with murder in 

connection with McKinley’s death. Detective Gerow testified that Patton testified at McGee and 

Thomas’s preliminary examination. Patton’s mother testified that Patton intended to testify at 

the murder trial on July 26, 2013. 

 Patton’s home was attacked early in the morning on July 11, 2013. According to Prince, 

a friend dropped him off near Patton’s home to meet his ex-girlfriend, who was at Patton’s 

house. Prince saw an unfamiliar van driving in the neighborhood. Patton was not there at the 

time, but Patton’s family and some friends were present. At about 12:30 a.m., a van drove by the 

house. About three minutes later, he saw someone approach the house with something in one 

hand. Prince yelled, grabbed his ex-girlfriend, and then heard “the loudest bang I ever heard in 

my life.” Prince realized that he, his ex-girlfriend, and the house were on fire. The people 

outside began shooting at the house. 

 Prince extinguished the fire that was on him and then went to retrieve a gun. When he 

looked outside, he saw that the front of the house was on fire and Granderson was shooting an 

assault-style rifle at the house. Prince tried to get everyone into the house’s basement, but once 

there, he realized that his ex-girlfriend was not present. Prince went back upstairs to find her and 

saw someone enter the home carrying a handgun: 

He was like right there on the porch, coming into the door, but I see him, but he’s 

look around like, and I see him. . . . [W]hen we made eye contact, his eyes got 

big, because I was shocked about who I seen. 

Prince then testified that the person was Watkins, who ran back outside. Prince found his exgirlfriend and went into the basement to wait for police and firefighters to arrive. Prince 

believed Granderson and Watkins had set the house on fire and then waited for the occupants to 

come outside so that they could “pick [them] off.” The recording of a 9-1-1 call that was placed 

from the home’s basement from 1:54 a.m. to 2:03 a.m. was admitted into evidence. 

 Alexia Lewis testified that she lived across the street from Patton’s home, and she was 

visiting the home at the time of the arson. According to Lewis, she heard her father’s voice 

outside when she was hiding in the basement. When her father saw her, he was “[s]hocked.” 

 Granderson testified that on the night of the arson, he was at his sister’s home in the 

Sheridan Park neighborhood. Granderson’s alibi defense centered on watching the child of his 

sister’s friend, Ja’Quise O’Daniels, while O’Daniels shopped for groceries. On crossexamination, O’Daniels testified that she was mistaken about which day it was that Granderson 

watched her child. 
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 Lauren Davis, the mother of Watkins’s child, testified that at about 2:25 a.m. on July 11, 

2013, Watkins asked her to pick him up from a home in northwest Sheridan Park. Davis testified 

that Watkins did not smell of smoke or gasoline and did not have a weapon when she picked him 

up. Davis stated that she did not know where Watkins was from 1:45 a.m. to 2:00 a.m. 

 The jury found Watkins guilty of the crimes previously described. Before his sentencing 

hearing, Watkins moved for a new trial on the basis of newly discovered evidence. At the 

hearing on the motion, Watkins’s mother testified that Prince told her that he intended to recant 

his trial testimony. Defense counsel testified that he prepared an affidavit for Prince to sign, but 

Prince later recanted his recantation. The prosecution presented evidence that Prince told a 

police detective that he had refused to sign the affidavit because it was untrue. The trial court 

found that Prince’s testimony at trial was credible and denied Watkins’s motion for a new trial. 

II. EVIDENTIARY ISSUES 

A. STANDARDS OF REVIEW 

 This Court reviews for an abuse of discretion preserved challenges to the trial court’s 

evidentiary rulings. People v Duncan, 494 Mich 713, 722; 835 NW2d 399 (2013). The trial 

court abuses its discretion when its outcome falls outside the range of principled outcomes. 

People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). We review de novo the 

preliminary questions of law surrounding the admission of evidence. Duncan, 494 Mich at 723. 

B. GANG-RELATED PHOTOGRAPHS 

 Watkins contends that the trial court erred by admitting various gang-related photographs 

because they were irrelevant and unfairly prejudicial. We disagree. 

The Michigan and United States Constitutions provide that no person shall be deprived of 

property without due process of law. US Const, Am XIV; Const 1963, art 1, § 17. Criminal 

prosecutions must comply with “ ‘prevailing notions of fundamental fairness.’ ” People v 

Anstey, 476 Mich 436, 460; 719 NW2d 579 (2006), quoting Pennsylvania v Ritchie, 480 US 39, 

56; 107 S Ct 989; 94 L Ed 2d 40 (1987). The improper admission of evidence may deprive a 

defendant of due process if it “infused the trial with unfairness.” Estelle v McGuire, 502 US 62, 

75; 112 S Ct 475; 116 L Ed 2d 385 (1991) (quotation marks and citation omitted). 

 The trial court may only admit relevant evidence. MRE 402. Evidence may be relevant 

even when it does not pertain to an element of an offense, as long as it pertains to a matter in 

controversy. People v McGhee, 268 Mich App 600, 637; 709 NW2d 595 (2005). The res gestae 

of a crime includes the facts and circumstances surrounding its commission. People v Sholl, 453 

Mich 730, 742; 556 NW2d 851 (1996); US v Hardy, 228 F3d 745, 748 (CA 6, 2000). The res 

gestae of an offense is generally relevant and admissible. Sholl, 453 Mich at 741; Hardy, 228 

F3d at 748. 

 A person’s motive to commit a crime may be highly relevant. People v Fisher, 449 Mich 

441, 453; 537 NW2d 577 (1995). Additionally, evidence that affects the credibility of a witness 

is also highly relevant. People v King, 297 Mich App 465, 476-477; 824 NW2d 258 (2012). 

The fact that evidence is damaging does not make it unfairly prejudicial. People v Mills, 450 
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Mich 61, 75; 537 NW2d 909 (2008). Evidence is unfairly prejudicial when evidence is only 

marginally probative, but there is a danger that the trier of fact may give it undue or preemptive 

weight. People v Blackston, 481 Mich 451, 462; 751 NW2d 408 (2008). 

 In this case, the photographs established Watkins’s relationship to people who were 

going to be standing trial for murder two weeks after the offense. The intended victim of the 

arson was a person who intended to testify at that trial. The photographs therefore established 

the motive for the crime and were thus highly relevant. The gang-related hand symbols that 

some people in the photographs displayed also established their relationship. There is also no 

indication that the jury gave this evidence undue or preemptive weight. We conclude that the 

trial court did not abuse its discretion by admitting the photographs. 

 Watkins also contends that admission of the photographs improperly implied guilt by 

association, in violation of the Michigan Supreme Court’s decision in People v Bynum, 496 Mich 

610; 852 NW2d 570 (2014). We disagree. 

 In Bynum, the Michigan Supreme Court considered the relevance of expert testimony 

evidence regarding gangs, gang membership, and gang culture. Id. at 615. It concluded that the 

trial court may admit expert testimony when there is “evidence that the crime at issue is gangrelated,” but that an expert “may not use a defendant’s gang membership to prove specific 

instances of conduct in conformity with gang membership . . . .” Id. at 615, 635-636. 

 This case is highly distinguishable from Bynum. This case involved no expert testimony 

regarding gang affiliation, only lay witness testimony. There was extensive evidence that the 

crime at issue in this case was gang-related—indeed, the res gestae evidence established that the 

arson was part of a witness intimidation attempt regarding a gang-related murder. Finally, the 

evidence was not used to show that Watkins’s conduct conformed to general gang-related 

conduct. Bynum did not mandate exclusion of this evidence. 

C. PRIOR INCONSISTENT STATEMENT 

 Watkins contends that the trial court erred by admitting Detective Charles Coleman’s 

testimony about Prince’s statements in the hospital because this prior consistent statement 

improperly bolstered Prince’s testimony. We disagree. 

 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). 

Hearsay is generally inadmissible, unless it is subject to a hearsay exception. MRE 802; 

Duncan, 494 Mich at 724. The improper admission of hearsay may implicate the defendant’s 

state and federal constitutional rights. People v Dendel (On Second Remand), 289 Mich App 

445, 452-453; 797 NW2d 645 (2010). See Crawford v Washington, 541 US 36, 50-51; 124 S Ct 

1354; 158 L Ed 2d 177 (2004). 

 MRE 801(d)(1)(B) provides that a prior statement of a witness is not hearsay if the prior 

statement was “consistent with the declarant’s testimony and is offered to rebut an express or 

implied charge against the declarant of recent fabrication or improper influence or motive . . . .” 

However, one of the elements the prosecution must establish to admit a prior consistent 

statement is that the statement was made “prior to the time that the supposed motive to falsify 
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arose.” People v Jones, 240 Mich App 704, 707; 613 NW2d 411 (2000) (quotation marks and 

citation omitted). In this case, it is clear that the alleged motive to fabricate—that Watkins and 

Granderson shot Prince in the leg the previous year—arose before Prince made his statements to 

Detective Coleman. Therefore, the fourth element would not be established in this case. 

 However, a party may not “create[] the very error that it wishes to correct on appeal[.]” 

People v Szalma, 487 Mich 708, 726; 790 NW2d 662 (2010). “Under the doctrine of invited 

error, a party waives the right to seek appellate review when the party’s own conduct directly 

causes the error.” People v McPherson, 263 Mich App 124, 139; 687 NW2d 370 (2004). 

 We note that counsel for Granderson challenged Detective Coleman’s testimony. 

Counsel for Watkins did not challenge the testimony. In his opening statement, counsel for 

Granderson had previously stated the following: 

Mr. Prince has been interviewed a number of times and he said a number of 

different things. At one point he told the investigator he was 70 percent sure . . . 

that the two people shooting at the house, and again earlier he had said there were 

three, 70 percent sure it was John Granderson and Mr. Watkins. 

 There have been other hearings in this case, you know. There was a 

preliminary exam before we got to that point, and at that point he’s saying he was 

100 percent sure, but back when Mr. Prince was being treated at Covenant 

Hospital, so this would have been the night of the shooting, July 11th, he told 

Detective Coleman that [Watkins] was the one doing the shooting and he did not 

know who threw the cocktail. 

 As part of his interview with Detective Coleman, he related that he had 

been shot a year ago in Buena Vista and believed he’d been shot by the same 

people who shot up the house this particular night. 

 Detective Coleman subsequently testified that he was the first officer to interview Prince 

in the hospital. According to Detective Coleman, Prince told him that Watkins and Granderson 

got out of a van, Watkins was shooting, and he did not know who threw the Molotov cocktail. 

On cross-examination, Detective Coleman testified that Prince told him that the arson incident 

was the second time that Watkins and Granderson had shot him. 

 We conclude that by stating in his opening that Detective Coleman would testify about 

Prince’s prior statements, counsel waived this alleged error. Prior to his objection, counsel 

indicated in his opening statement that the jury would hear Prince’s prior statements to police 

officers. The prosecution clearly relied on this statement while questioning Detective Coleman. 

Watkins’s attempt to characterize the prosecution’s questioning as “bolstering” on appeal is 

disingenuous. 

 We also note that while Watkins mentions the testimonies of Officer Matthew Carpus 

and Trooper Hillary House in his argument, he does not develop an argument regarding them. 

We therefore decline to analyze these issues because we conclude that Watkins has abandoned 

them. See People v Matuszak, 263 Mich App 42, 59; 687 NW2d 342 (2004). However, even 

were we to analyze these issues, we would reach the same conclusion. 
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III. PROSECUTORIAL MISCONDUCT 

 Watkins contends that the prosecution committed misconduct by commenting on his 

failure to present an alibi witness. We disagree. 

 A defendant must “timely and specifically” challenge alleged prosecutorial misconduct 

before the trial court. People v Unger, 278 Mich App 210, 234-235; 749 NW2d 272 (2008). In 

this case, Watkins did not challenge the statement when the prosecutor made it. Therefore, it is 

unpreserved, and we will review this claim for plain error. See id. at 235. 

 A prosecutor can deny a defendant’s right to a fair trial by making improper remarks that 

infringe on a defendant’s constitutional rights or by making remarks that “so infect[] the trial 

with unfairness as to make the resulting conviction a denial of due process.” Donnelly v 

DeChristoforo, 416 US 637, 643; 94 S Ct 1868; 40 L Ed 2d 431 (1974). See People v Bahoda, 

448 Mich 261, 266-267; 531 NW2d 659 (1995). Generally, the prosecution may argue all the 

facts in evidence and all reasonable inferences arising from them, as they relate to the 

prosecution’s theory of the case. Bahoda, 448 Mich at 282. If the defendant presents evidence 

of an alibi, the prosecution may remark on the lack of corroborating testimony. People v 

Ovegian, 106 Mich App 279, 281; 307 NW2d 472 (1981). But if the defendant does not present 

an alibi defense, the prosecution’s remark about a defendant’s lack of alibi is improper. Id. The 

prosecution may not shift the burden of proof by commenting on the defendant’s failure to 

present evidence. People v Abraham, 256 Mich App 265, 273; 662 NW2d 836 (2003). 

 In this case, the prosecution argued as follows: 

 His girlfriend Lauren said . . . it’s like early in the morning, 2:24, 2:25, . . . 

and I get a call from [Watkins] and he’s someplace where I don’t even know 

where he’s at. . . . 

 He wasn’t at home. He was at some stranger’s house apparently. What’s 

he doing at some stranger’s house, and why does he need a ride at almost 2:30 in 

the morning . . . . Lauren, to her credit, well, you don’t know where he was at the 

time when all this happened, do you? Can’t tell you. Does not have an alibi. 

Watkins did not argue that he had an alibi at the time of the incident; rather, he relied on a theory 

of mistaken identification. The prosecution’s remark on Watkins’s failure to present an alibi was 

improper because Watkins had not presented an alibi defense. 

 However, Watkins did not timely challenge this alleged misconduct. Curative 

instructions are “sufficient to cure the prejudicial effect of most inappropriate prosecutorial 

statements.” Unger, 278 Mich App at 235. We will not find error requiring reversal if a curative 

instruction could have alleviated the effect of the prosecutor’s misconduct. Id. 

 In this case, the prosecution’s remark was brief. Read in context, it was a part of the 

prosecutor’s general commentary on the weakness of Davis’s evidence that Watkins was 

somewhere other than Patton’s house during the arson. Most importantly, a timely curative 

instruction would have alleviated the prejudicial effect of this remark, and the trial court later 

instructed the jury that the burden of proof rested on the prosecution and that Watkins was not 
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required to prove his innocence. We conclude that this error does not warrant reversal because it 

is not likely that it prejudiced Watkins’s trial. 

IV. INEFFECTIVE ASSISTANCE 

A. STANDARDS 

 A criminal defendant has the fundamental right to effective assistance of counsel. US 

Const, Am VI; Const 1963, art 1, § 20; United States v Cronic, 466 US 648, 654; 104 S Ct 2039; 

80 L Ed 2d 657 (1984). A defendant’s ineffective assistance of counsel claim “is a mixed 

question of fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 

(2002). When reviewing an ineffective assistance of counsel claim, this Court reviews for clear 

error the trial court’s findings of fact and reviews de novo questions of law. Id. 

 We note that Watkins has preserved this issue by moving for an evidentiary hearing. See 

People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). When the trial court has not 

conducted a hearing to determine whether a defendant’s counsel was ineffective, we conduct our 

review from the existing record. People v Riley (After Remand), 468 Mich 135, 139; 659 NW2d 

611 (2003). 

 To prove that his defense counsel was not effective, the defendant must show that (1) 

defense counsel’s performance fell below an objective standard of reasonableness, and (2) there 

is a reasonable probability that counsel’s deficient performance prejudiced the defendant. 

Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v 

Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). The defendant must overcome the 

strong presumption that defense counsel’s performance constituted sound trial strategy. 

Strickland, 466 US at 690; Matuszak, 263 Mich App at 58. A defendant was prejudiced if, but 

for defense counsel’s errors, the result of the proceeding would have been different. Pickens, 

446 Mich at 312. 

B. CELL PHONE RECORDS 

 Watkins contends that defense counsel erred by failing to present evidence of Watkins’s 

cellular phone records on June 11, 2013. We disagree. 

 Defense counsel may be ineffective for failing to reasonably investigate a defendant’s 

substantial defenses. See Strickland, 466 US at 691. However, what evidence to present is a 

matter of trial strategy. People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). 

 In this case, Watkins’s cellular phone records showed two calls at 12:56 a.m. and 2:37 

a.m. respectively. A police report indicated that the phone records offered “no definitive cellular 

phone call evidence to place the handset at or away from the scene of the crime” because of the 

“lack of calls nearer to the time of the incident[.]” While Watkins contends on appeal that this 

evidence was exculpatory, that is not the case: at best, the witness could have testified that he 

could not tell from the cell phone records where Watkins was located during the crime. 
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 We conclude that trial counsel was not ineffective. Counsel’s decision not to present this 

evidence was sound strategy because it was not exculpatory. Further, even had trial counsel 

presented this evidence, the results of Watkins’s proceedings would not have been different. 

C. SEPARATE TRIALS 

 Watkins contends that trial counsel was ineffective for failing to move to separate his trial 

from that of codefendant Granderson. We disagree. 

 The trial court may permissively order separate trials if severance “will promote fairness 

to the parties and a fair determination of the guilt or innocence of one or more of the 

defendants.” MCR 6.210(D). Before permissively ordering severance, the trial court should 

consider “the timeliness of the motion, the drain on the parties’ resources, the potential for 

confusion or prejudice stemming from either the number of defendants or the complexity or 

nature of the evidence, the convenience of witnesses, and the parties’ readiness for trial.” MCR 

6.210(D). 

 “Joinder of . . . other crimes cannot prejudice the defendant more than he would have 

been by the admissibility of the other evidence in a separate trial.” People v Williams, 483 Mich 

226, 237; 769 NW2d 605 (2009), quoting United States v Harris, 635 F2d 526, 527 (CA 6, 1980) 

(alteration and quotation marks omitted). A defendant is also prejudiced by a joint trial when it 

restricts the defendant’s ability to present a defense. People v Hana, 447 Mich 325, 360; 524 

NW2d 682, amended 447 Mich 1203 (1994). A defendant’s ability to present a defense is 

restricted when codefendants present mutually antagonistic defenses. Id. at 349. 

 In this case, Watkins and Granderson did not present mutually antagonistic defenses: 

Watkins’s theory was that he was misidentified as being present, and Granderson’s theory was 

that he was not present. A full reading of Granderson’s opening statement indicates that he did 

not inculpate Watkins. Instead, he accurately summarized the expected testimony in the case. 

Neither defense implicated the other defendant. 

 Watkins contends that Granderson’s failed alibi defense may have prejudiced the jurors 

against his case because Granderson blatantly lied to the jury. Granderson’s alibi witness 

testified that she was mistaken, not that the alibi was fabricated. Watkins also contends that the 

jury was prejudicially exposed to gang-related photographs involving Granderson that would 

otherwise have been inadmissible. Watkins does not address how the photographs of 

Granderson with East Side gang members were more prejudicial to his case than the photographs 

of Watkins with similar associates, which were properly admitted. “[I]ncidental spillover 

prejudice, which is almost inevitable in a multi-defendant trial, does not suffice.” Hana, 447 

Mich at 349 (internal quotation marks and citations omitted). We are not convinced that the jury 

gave undue or preemptive weight to the photographs involving Granderson alone, rather than 

those involving Watkins. 

 In sum, we are not convinced that the trial court’s decision not to move for separate trials 

was an unreasonable trial strategy or prejudiced Watkins. We conclude that counsel rendered 

effective assistance. 

D. EXPERT IDENTIFICATION WITNESS 
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 Watkins contends that trial counsel was ineffective for failing to present an expert 

witness in eyewitness identification. Again, we disagree. 

 “The vagaries of eyewitness identification are well-known; the annals of criminal law are 

rife with instances of mistaken identification.” United States v Wade, 388 US 218, 228; 87 S Ct 

1926; 18 L Ed 2d 1149 (1967). However, as stated above, what evidence to present is a matter 

of trial strategy. Horn, 279 Mich App 39. Trial counsel may reasonably decide against

presenting an expert witness in identification because counsel “may reasonably have been 

concerned that the jury would react negatively to perhaps lengthy expert testimony that it may 

have regarded as only stating the obvious: memories and perceptions are sometimes inaccurate.” 

People v Cooper, 236 Mich App 643, 658; 601 NW2d 409 (1999). 

 We conclude that trial counsel did not render ineffective assistance when he did not 

present an eyewitness identification expert. This case involved only one eyewitness—Prince, 

who claimed that he saw Watkins while he attempted to retrieve his girlfriend. Prince was 

familiar with Watkins, and they had an extensive personal history. Trial counsel ably attacked 

Prince’s testimony both by cross-examination and the presentation of other witnesses, including 

through Davis’s testimony that Prince never went back upstairs but instead remained in the 

basement. Considering the abundant impeachment evidence available, counsel’s strategic 

decision to forego an eyewitness identification expert was reasonable. Further, we are not 

convinced that the results of Watkins’s proceeding would have been different had such an expert 

testified. 

V. NEWLY DISCOVERED EVIDENCE 

 Watkins contends that the trial court erred when it denied his motion for a new trial on 

the basis of newly discovered evidence. We disagree. 

 This Court reviews for an abuse of discretion the trial court’s decision on a motion for a 

new trial. People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). We review the trial 

court’s underlying factual findings for clear error. Id. at 691. A finding is clearly erroneous if, 

after reviewing the entire record, we are definitely and firmly convinced that the trial court made 

a mistake. People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012). When considering 

whether a finding is clearly erroneous, this Court gives due regard to the trial court’s credibility 

determinations. People v Canter, 197 Mich App 550, 560; 496 NW2d 336 (1992). 

 The trial court may grant a defendant a new trial on the basis of newly discovered 

evidence. See Cress, 468 Mich at 692. But “where newly discovered evidence takes the form of 

recantation testimony, it is traditionally regarded as suspect and untrustworthy.” Canter, 197 

Mich App at 559. “There is no form of proof so unreliable as recanting testimony.” Id. 

(quotation marks and citations omitted). 

 Our review of the record indicates that the trial court applied the proper standard when 

determining whether to grant a new trial. It considered that, despite Prince’s recantation, Prince 

refused to sign an affidavit recanting his testimony and later indicated that his recantation was 

not true. The trial court found that Prince was initially a credible witness. We are not definitely 

and firmly convinced that the trial court made a mistake. Further, particularly given Prince’s 
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recantation of his recantation, we conclude that the trial court did not abuse its discretion when it 

refused to grant a new trial on this ground. 

VI. SENTENCING 

 This Court reviews the sentencing court’s scoring of a sentencing guidelines variable for 

clear error. People v Osantowski, 481 Mich 103, 111; 748 NW2d 799 (2008). A preponderance 

of the evidence must support the trial court’s determinations. Id. The proper interpretation and 

application of the sentencing guidelines is a question of law that this Court reviews de novo. 

People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004). 

 First, Watkins contends that the trial court erroneously assessed 15 points for offense 

variable (OV) 5. We agree. 

 The trial court must assess 15 points for OV 5 if “[s]erious psychological injury requiring 

professional treatment occurred to a victim’s family.” MCL 777.35(1)(a). The trial court must 

assess zero points for OV 5 if “[n]o serious psychological injury requiring professional treatment 

occurred to a victim’s family.” MCL 777.35(1)(b). Whether a victim has in fact sought 

treatment is not determinative. MCL 777.35(2). 

 However, the trial court improperly assesses points for psychological injuries if there is 

no evidence of any psychological injury, because the trial court may not assume that an injury 

occurred. See People v Lockett, 295 Mich App 165, 183; 814 NW2d 295 (2012) (concerning 

OV 4). Evidence of psychological injuries may include evidence of, among other possible 

psychological effects, personality changes, anger, fright, or feelings of being hurt, unsafe, or 

violated. People v Gibbs, 299 Mich App 473, 493; 830 NW2d 821 (2013). 

 In this case, the trial court relied on the psychological effect on Lewis’s father to score 

OV 15. The only evidence of his psychological state was Lewis’s statement that her father was 

“shocked” on seeing her emerge from the building. Lewis’s father did not give a victim impact 

statement, and he did not testify at Watkins’s trial. While Lewis’s father may have been shocked 

to see her emerge from the building, the trial court may not simply assume that Lewis’s father 

suffered a serious psychological injury. We conclude that the trial court improperly assessed 15 

points for OV 5 on this basis. 

 Second, Watkins contends that the trial court improperly assessed 15 points for OV 10. 

We disagree. 

 The trial court must assess 15 points under OV 10 if “[p]redatory conduct was involved.” 

MCL 777.40(1)(a). The statute defines predatory conduct as “preoffense conduct directed at a 

victim . . . for the primary purpose of victimization. MCL 777.40(3)(a). The Michigan Supreme 

Court has provided standards to help a trial court determine whether it should assess points for 

predatory conduct: 

 (1) Did the offender engage in conduct before the commission of the 

offense? 
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 (2) Was this conduct directed at one or more specific victims who suffered 

from a readily apparent susceptibility to injury, physical restraint, persuasion, or 

temptation? 

 (3) Was victimization the offender’s primary purpose for engaging in the 

preoffense conduct? 

 If the court can answer all these questions affirmatively, then it may 

properly assess 15 points for OV 10 because the offender engaged in predatory 

conduct under MCL 777.40. [People v Cannon, 481 Mich 152, 161-162; 749 

NW2d 257 (2008).] 

The conduct may not be “preoffense conduct involving nothing more than run-of-the-mill 

planning to effect a crime or subsequently escape without detection.” People v Huston, 489 

Mich 451, 462; 802 NW2d 261 (2011) (quotation marks and citation omitted). Vulnerabilities 

may arise out of a victim’s relationships or circumstances, as well as the victim’s characteristics. 

Id. at 464. 

 In this case, Prince testified that he saw a van driving in the neighborhood earlier in the 

evening. The attack took place while everyone in the home was in a single room adjacent to the 

front of the home. Further, Prince testified that he believed that the attackers set the house on 

fire with the intent of shooting the victims as they attempted to escape. It is a reasonable 

inference from the evidence that Watkins monitored the house and waited to instigate the arson 

until the home’s occupants were in a vulnerable location. Further, the home being on fire 

certainly rendered the victims more vulnerable to being shot at. We conclude that a 

preponderance of the evidence supported the trial court’s determination that the defendants in 

this case engaged in predatory conduct. 

 Third, Watkins contends that the trial court erred when it assessed 100 points for OV 20. 

We disagree. 

 The trial court properly assesses 100 points for OV 20 when “[t]he offender committed 

an act of terrorism by using or threatening to use a harmful . . . incendiary device, or explosive 

device[.]” MCL 777.49a(1)(a). An act of terrorism is a violent felony that is dangerous to 

human life and that “is intended to intimidate or coerce a civilian population . . . .” MCL 

777.49a(2)(a); 750.543b. 

 Here, Watkins was part of a group of men who set a house on fire with an incendiary 

device. The home was owned by Patton, a person who intended to testify at a murder trial 

involving one of Watkins’s associates. Based on the evidence available in this case, a 

preponderance of evidence supported the finding that the defendants intended the act to 

intimidate or coerce a civilian population—namely, anyone who would act as a witness against 

them. We conclude that the trial court did not err by assessing 100 points for OV 20. 

 If a sentencing error results in a different sentencing guidelines range, the defendant is 

entitled to resentencing. People v Jackson, 487 Mich 783, 793-794; 790 NW2d 340 (2010). In 

this case, Watkins had 265 OV points, placing him within OV Level VI. See MCL 777.62. 

Reducing his OV 5 assessment to 0 points reduces his overall OV points to 250, still placing him 
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within OV Level VI. Because Watkins’s OV level has not changed, resentencing is not 

necessary. See People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006). 

VII. CONCLUSION 

 We conclude that the strategic decisions of Watkins’s trial counsel were objectively 

reasonable and did not prejudice the outcome of his trial. We also conclude that the trial court 

did not abuse its discretion by refusing Watkins’s motion for a new trial or by admitting evidence 

of gang-related photographs and Prince’s prior consistent statements. We conclude that the 

prosecution’s brief reference to Watkins’s lack of alibi could have been cured by a timely 

curative instruction and was not overly prejudicial. Because we have only determined that one 

non-prejudicial error existed, we also conclude that no cumulative errors warrant relief. See 

People v Cooper, 236 Mich App 643, 659-660; 601 NW2d 409 (1999). Finally, while the trial 

court erred by assessing 15 points for OV 5, this error does not warrant resentencing. 

 We affirm. 

/s/ Peter D. O’Connell 

/s/ Donald S. Owens 

/s/ Michael J. Kelly