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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 19, 2017

v No. 329186 Wayne Circuit Court BRANDON JAMAR LOFLAND, LC No. 15-002799-01-FC

Defendant-Appellant.

Before: R IORDAN , P.J., and F ORT H OOD and S ERVITTO , JJ.

P ER C URIAM

.

Defendant appeals as of right his jury trial convictions of fi rst-degree felony murder, MCL 750.316(1)(b); two counts of carjacking, MCL 750.529a; felo n in possession of a firearm, MCL 750.224f; and possession of a firearm during the commissionof a felony, MCL 750.227b.
The trial court sentenced defendant as a fourth-offense habitua l offender, MCL 769.12, to life imprisonment for the murder convi ction, and concurrent prison t erms of 25 to 30 years each for the carjacking convictions, and th ree to five years for the fel on-in-possession conviction, to be served consecutive to a two-year term of imprisonment for the f elony-firearm conviction. We
affirm.

Defendant’s convictions arise f rom a crime spree in Detroit on the night of September 13, 2014, during which he first carjack ed Kevin Foy and took the ve hicle Foy was sitting in, a 2014 red Dodge Charger, and then lat er attempted to carjack Quinton Brown, who was driving a Cadillac Escalade. Brown was shot during the offense and later died from his injury. The prosecutor’s theory at trial was that between 9:00 and 9:45 p.m ., Foy was sitting in the passenger seat of the running Charger when defendant ordered him out of t he vehicle at gunpoint, and then drove away in the car. The Charger, which had a pushbutton sta rter, could be driven without the key fob if it was already runni ng, but it could not be restarte d once it was stopped. The prosecution presented video evidence from a gas station showing the stolen Charger pull up to a gas pump after 10:00 p.m., and th e driver ultimately abandoning the vehicle when he could not restart it after purchasing gas. Defendant’s former girlfriend , Nivra Bracey, identified defendant as the driver in still photographs obtained from the video. Th e video showed defendant walking away from the gas station in the direction of where Brown was l ater found. The prosecution
theorized that defendant walked from the gas station in search of another vehicle, encountered Brown sitting in his Cadillac, a nd then shot Brown, planning to take his vehicle. Brown, who was armed, managed to shoot defendant. At approximately 11:00 p.m., defendant called Bracey,-2- informed her that he had been shot in the neck, and asked her t o call 911; defendant informed Bracey of his location, but then later gave her a different loc ation. Ultimately, at 11:18 p.m., police officers responded to a gas station half a mile away fro m where Brown had been shot, and found defendant with gunshot wounds to his throat and cheek. T he defense theory at trial was
misidentification.

I. SUFFICIENCY OF THE EVIDENCE

Defendant argues that the evidence was insufficient to identif y him as the person who committed any of the charged crimes. We disagree. When ascert aining whether sufficient evidence was presented at tria l to support a conviction, this C ourt must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a r easonable doubt. People v Reese

, 491 Mich 127, 139; 815 NW2d 85 (2012). Circumstantial evidence and reasonable inferences arising from the evidence can c onstitute satisfactory proof of the elements of the crime. People v Brantley , 296 Mich App 546, 550; 823 NW2d 290 (2012). “[A] reviewing c ourt is required to 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).

Identity is an essential element in a criminal prosecution, People v Oliphant , 399 Mich 472, 489; 250 NW2d 443 (1976), and the prosecution must prove t he identity of the defendant as the perpetrator of a charged offense beyond a reasonable doubt. People v Kern , 6 Mich App 406, 409-410; 149 NW2d 216 (1967). Positive identification by a wit ness or circumstantial evidence and reasonable inferences arising from it may be sufficient to support a conviction of a crime. People v Davis , 241 Mich App 697, 700; 617 NW2d 381 (2000); Nowack , 462 Mich at 400. The credibility of identification testimony is for the trier of fac t to resolve and this Court will not
resolve it anew. Id.

Viewed in a light most favorable to the prosecution, the evide nce was sufficient to enable the jury to find that the driver of the red Charger that was ab andoned at the gas station was the same person who carjacked Foy of that same vehicle at a nearby location a short while earlier. In light of the description of the pushbutton starting mechanis m for the Charger, the jury could find that the person who took the vehicle was able to drive awa y without the key fob and drove the vehicle to the nearby gas station, but was unable to restar t the vehicle without the key fob after stopping to purchase gas. Therefore, the person decided to abandon the vehicle. The driver of the Charger was captured in a still photograph from the gas station’s surveillance video, and defendant’s former girlfriend identified that person as defenda nt. In addition, the police later confiscated a black jacket and a gray hooded sweatshirt from de fendant, which matched the description of the clothing worn by the person who carjacked Fo y. This circumstantial evidence was sufficient to permit a rational trier of fact to reasonably infer beyond a reasonable doubt that defendant was the person who car jacked Foy, stealing the red Ch arger.

Sufficient evidence also supported defendant’s identity as the person who shot and carjacked Brown. Brown’s vehicle was approximately 50 feet fro m where defendant had abandoned the Charger. Given the evidence identifying defendan t as the person who abandoned the Charger at the gas station, the jury could find that defend ant walked down the street in the direction of Brown, in search of another vehicle. Brown told t he police that a man wearing a-3- black jacket approached him as he sat in the driver’s seat of h is Cadillac, and the man fired a gun through the driver’s side window, shooting Brown. Brown was ar med with a .38 caliber Derringer and managed to shoot his assailant. Approximately 20 minutes after receiving a dispatch about Brown’s shooting, the police encountered defenda nt, who had a gunshot wound, at a location half a mile from where Brown had been shot. Desp ite having being shot, defendant did not call 911 for assistance, but instead called his former girlfriend and asked her to call 911. The bullet fragment removed from defendant was consistent with the caliber of bullet that would have been fired from Brown’s .38 caliber Derringer. This evide nce, viewed in a light most favorable to the prosecution, was sufficient to permit a ration al trier of fact to reasonably infer that defendant was the assailant who shot Brown while attemptin g to steal his Cadillac, and then, after having been shot by Brown during the offense, attempted t o distance himself from Brown’s
location.

Defendant argues that there wer e discrepancies in the evidence concerning the color of the perpetrator’s pants and how many times he was shot, and tha t there was no eyewitness testimony, or DNA or fingerprint evidence linking him to the cr imes. 1 In making these arguments, however, defendant ignores that when evaluating the sufficiency of evidence, this Court is required to resolve all conflicts in the evidence in f avor of the prosecution, People v

Lockett , 295 Mich App 165, 180; 814 NW2d 295 (2012), and that this def erential standard of
review is the same whether the evidence is direct or circumstan tial. Nowack , 462 Mich at 400. Defendant’s challenges are related to the weight of the evidenc e rather than its sufficiency. People v Scotts , 80 Mich App 1, 9; 263 NW2d 272 (1977). Indeed, these same ch allenges were presented to the jury during trial. This Court will not interf ere with the jury’s role of determining issues of weight and credibility. People v Wolfe , 440 Mich 508, 514; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992).

1 Defendant highlights that he was wearing light blue jeans, con trary to Brown’s statement that his perpetrator was wearing khaki pants and Foy’s statement tha t his perpetrator was wearing dark pants. Defendant ignores that his former girlfriend ident ified him as the person at the gas station in possession of the Charger. He also ignores that bot h Brown and Foy described him as wearing a black jacket, that Foy described him as wearing a gra y hoodie under the jacket, and that, when he was found, he was wearing a grey sweatshirt and a black jacket. That defendant was wearing light jeans, and not khaki pants, did not preclude the jury from identifying him as the perpetrator in light of the other circumstantial evidence l inking him to the crimes. Foy, unlike Brown, was able to testify at trial, and explained that it was dark, that he really did not see the carjacker’s pants because he could only see the carjacker’s upper body at the window, and his main focus was on the gun. Defendant also emphasizes that he sustained two gunshot wounds (to his cheek and throat) , but Brown fired only one shot . However, the jury could find from the evidence that defendant’s wounds were caused by one gu nshot. The evidence indicated
that Brown was in an SUV that sits higher up o ff the ground, wh ich explained why the bullet that killed Brown traveled from left to right and slightly upward. When Brown shot back from the driver’s seat of his vehicle, his shot would have gone downward , making it possible that the bullet fired by Brown grazed defendant’s left cheek before beco ming embedded in defendant’s throat. Indeed, only one bullet frag ment was recovered from de fendant’s body at the hospital.-4- II. GREAT WEIGHT OF THE EVIDENCE

We also reject defendant’s argument that his convictions must be reversed because the evidence preponderates so heavily a gainst the jury’s verdicts t hat it would be a miscarriage of justice to allow the verdicts to stand. A defendant is require d to move for a new trial in the lower court to preserve a claim that his conviction is against the gr eat weight of the evidence. People v

Cameron , 291 Mich App 599, 617-618; 806 NW2d 371 (2011). Because defe ndant did not move for a new trial below, our review of this issue is limited to plain error affe cting defendant’s substantial rights. People v Musser , 259 Mich App 215, 218; 673 NW2d 800 (2003).

In evaluating whether a verdict is against the great weight of the evidence, the question is whether the evidence preponderates so heavily against the verdi ct that it would be a miscarriage of justice to allow the verdict to stand. People v Lemmon , 456 Mich 625, 642; 576 NW2d 129 (1998); People v Unger , 278 Mich App 210, 232; 749 NW2d 272 (2008). Defendant does n ot challenge any of the elements of the various offenses, other th an his identification. As discussed previously, sufficient circumst antial evidence supports defenda nt’s identity as the perpetrator of the crimes. Considering Bracey’s i dentification of defendant inthe photographs from the gas station video as the person in possession of the stolen Charger shortly after Foy was carjacked, and that defendant was wearing clothing that matched Foy’s desc ription of the carjacker, the evidence does not preponderate so heavily against the jury’s ve rdict for the Foy carjacking charge that it would be a miscarri age of justice to allow the v erdict to stand.

Likewise, considering the eviden ce that defendant left the Cha rger at the gas station after it would not start, that he then began walking toward the locat ion where Brown was shot, that Brown shot his assailant, that t he police found defendant with a gunshot wound shortly after
Brown was shot and within half a mile from where Brown had been shot, and that a bullet fragment removed from defendant was consistent with the caliber of bullet that Brown’s weapon would have used, the evidence does not preponderate so heavily against the jury’s verdicts for the Brown carjacking and murder c harges that it would be a misc arriage of justice to allow the
verdicts to stand.

Contrary to what defendant suggests, conflicting testimony and questions regarding the credibility of witnesses are not sufficient grounds for grantin g a new trial. Lemmon

, 456 Mich at 643. This Court defers to the jury’s determination of credibil ity “unless it can be said that directly contradictory testimony was so far impeached that it ‘ was deprived of all probative value or that the jury could not believe it,’ or contradicted indispu table physical facts or defied physical realities[.]” Id . at 645-646 (citation omitted). That is not the case here. T he jury was aware that
neither victim identified defenda nt, that there were no other e yewitnesses, and that there was no fingerprint or DNA evidence linking defendant to the crimes. A gain, it was up to the jury to assess the weight and reliability of the circumstantial identif ication evidence in light of the factors explored by the defense. Id. at 643-644. The jury’s verdict is not against the great weight of the evidence.

III. LAY OPINION TESTIMONY

Defendant next argues that Bracey improperly invaded the provi nce of the jury when she offered her opinion that defendant was the person depicted in t he still photograph from the gas-5- station surveillance video. B ecause defendant did not object t o this testimony below, this issue is unpreserved. We review this unpreserved claim of error for pla in error affecting defendant’s substantial rights. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999).

MRE 701 permits a lay witness to provide testimony in the form of an opinion if the opinion is “(a) rationally based on the perception of the witne ss and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” But “ ‘a witness cannot express an opinion on the defendant’s guilt or innocence of the charged offense.’ ” People v Fomby , 300 Mich App 46, 53; 831 NW2d 887 (2013) (citation omitted). For this reason, if a witness is in no better position than the jury to identify a person in a video or still photograph, the witness’s testimony identifying a defendant as the individual depicted is generally inadmissible as an invasion of the province of the ju ry. Id. at 52-53. Conversely, if a witness is in a better position t han the jury to identify a per son depicted in a video or photograph, the lay opinion testimony does not invade the province of the j ury. Id. ; see also United States v

LaPierre , 998 F2d 1460, 1465 (CA 9, 1993). As this Court observed in Fomby , the LaPierre Court offered two illustrations of when a lay witness may ident ify a defendant in a video or photograph at trial without inva ding the province of the jury. The LaPierre Court explained:

Our cases upholding the use of testimony of this type have been limited to two types. The first type is those in which the witness has had substantial and sustained contact with the person in the photograph . The second type is those in which the defendant’s appearance in the photograph is different from his appearance before the jury and the witness is familiar with the defendant as he appears in the photograph. [ LaPierre , 998 F2d at 1465 (citations omitted; emphasis added).]

The “common thread” binding these types of cases is that “there is reason to believe that the witness is more likely to identify correctly the person than is the jury.” LaPierre , 998 F2d at
1465. See also Fomby , 300 Mich App at 52.

The evidence showed that Bracey was substantially familiar with defendant. Bracey testified that as of September 2014, she had known defendant fo r 2-1/2 years, had been in a relationship with him, and had seen him on a consistent basis. In fact, Bracey was the person
who defendant chose to call for assistance after he was shot. Bracey acknowledged that the still photograph was not that clear and was taken from a distance, bu t she was still able to identify defendant with certainty based on her substantial contact with him. Given her familiarly with defendant, Bracey was in a better position than the jury to det ermine whether defendant was the person depicted in the still photograph. Therefore, Bracey’s t estimony did not invade the province of the jury, and her la y opinion testimony, which was rationally based on her perception of the photographs and was helpful to the jury’s determination of a material fact at issue (identity), was admissible under MRE 701. Therefore, defendant cannot establis h plain error.

IV. EVIDENCE THAT C ARL SHIVERS THREA TENED TO KILL BROWN

Defendant raises two claims involving the failure to present e vidence that Brown’s daughter overheard her stepfather, Carlton Shivers, threaten to kill Brown during a conversation between Shivers and Brown’s former wife. He argues that defens e counsel was ineffective for-6- failing to present this evidence, and that it was misconduct fo r the prosecutor to not present this evidence. We disagree.

A. EFFECTIVE ASSISTANCE

Because defendant did not raise an ineffective assistance of c ounsel claim in the trial court, our review of this issue is limited to mistakes apparent on the record. People v Heft , 299 Mich App 69, 80; 829 NW2d 266 (2012). “To demonstrate ineffect ive assistance of counsel, a defendant must show that his or her attorney’s performance fell below an objective standard of reasonableness under prevailing pr ofessional norms and that thi s performance caused him or her prejudice.” People v Nix , 301 Mich App 195, 207; 836 NW2d 224 (2013) (citation omitted)

. “To demonstrate prejudice, a defe ndant must show the probabilit y that, but for counsel’s errors, the result of the proceedings would have been different.” Id . “A defendant must meet a heavy burden to overcome the presumption that counsel employed effect ive trial strategy.” People v Payne , 285 Mich App 181, 190; 774 NW2d 714 (2009).

Decisions about what arguments t o make and what evidence to pr esent are matters of trial
strategy, People v Rockey , 237 Mich App 74, 76; 601 NW2d 887 (1999), and “this Court wil l not second-guess defense counsel’s judgment on matters of trial strategy.” People v Benton , 294 Mich App 191, 203; 817 NW2d 599 (2011). Defendant relies on a police report in which Brown’s daughter reported overhearing Shivers state his intenti on to kill Brown to establish the factual predicate for his claim that there was valuable evidenc e that Shivers shot Brown. The same police report, however, also discloses that a police serge ant directly asked Brown if Shivers
shot him and “ he stated no ” (Emphasis added.) Moreover, Brown’s daughter overheard
Shivers’s threateni ng statement while she was listening in on aconversation betw een Shivers and
her mother. Because information in the record indicates that B rown knew Shivers and expressly stated that Shivers did not shoot Brown, that the testimony wou ld have been hearsay because it
involved Shivers’s out-of-court statement, offered to prove the truth of the matter asserted, MRE 801, and defendant has not offered any other evidence to support a theory that Shivers was the shooter, defense counsel’s decisi on to forego presenting this e vidence was not objectively unreasonable. Accordingly, defendant has not overcome the stro ng presumption that defense counsel provided constitutionallyeffective assistance in this regard.

B. THE PROSECUTOR’S CONDUCT

In a related argument, defendant complains that the prosecutor violated a duty by not introducing evidence of Shivers’s death threat at defendant’s t rial. Because defendant did not argue below that the prosecuto r engaged in misconduct by failin g to present this e vidence at trial, this issue is unpreserved and is reviewed for plain error affec ting defendant’s substantial rights.

Carines , 460 Mich at 763. Defendant doe s not cite any legal authorityto support his position that the prosecution has an affirmative duty to present potenti ally exculpatory evidence at trial. “An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only curs ory treatment with little or no citation of supporting authority.” People v Kelly , 231 Mich App 627, 640-641; 588 NW2d 480 (1998). Regardless, defendant’s a rgument confuses a prosecutor ’s duty to disclose evidence with a duty to present that evidence at trial. The prosecution does not have a duty to introduce allegedly exculpatory evidence at trial, only to make it availa ble to the defendant. See People v-7- Lester , 232 Mich App 262, 278-279; 591 NW2d 267 (1998), overruled in part on other grounds
in People v Chenault , 495 Mich 142; 845 NW2d 731 (2014). Defendant does not conten d that the prosecution failed to disclose the evidence of Shivers’s th reatening statement, or that he was unaware of that statement. Furthermore, there is no requiremen t that the prosecution negate every theory consistent with a defendant’s innocence. Nowack , 462 Mich at 400. Thus, there is no basis for concluding that the prosecutor engaged in miscondu ct by failing to present the
evidence of Shivers’s threat.

Affirmed.

/s/ Michael J. Riordan
/s/ Karen M. Fort Hood
/s/ Deborah A. Servitto