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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 3, 2015

v No. 317804 Wayne Circuit Court NASIR LAMONT BANKS, LC No. 12-001386-FC

Defendant-Appellant.

Before: M URRAY , P.J., and S AAD and K. F. K ELLY , JJ.

P ER C URIAM

. Defendant appeals his jury trial convictions of multiple crimi nal offenses, including murder. For the reasons stated below, we affirm.

I. FACTS AND PROCEDURAL HISTORY

The prosecution charged defenda nt with the murders of two peop le at a drug house in Detroit. At trial, 1 witness S.J., one of the drug dealers who used the house to se ll drugs, testified that he awoke at the house on the morning of November 30, 2011 to the sound of gunfire, and found that he had suffered three gunshot wounds. He fled to an upstairs bathroom, and heard more gunshots. After a few minutes, S.J. attempted to go downs tairs, and saw defendant near the bottom of the steps holding a shotgun and a bag of marijuana th at the drug dealers kept in the house. S.J. retreated to the attic until the police arrived. As officers assisted him downstairs, the witness saw the two victims bloodied and lying on the floor. 2

After a hospital stay, S.J. offered a statement on the shootin g, in which he described defendant as the shooter. He s ubsequently identified defendant as the shooter in a photographic lineup. S.J.’s identification of defendant as the murderer was supported by testimony from a

1 This appeal is from defendant’s retrial—the jury in his initia l trial could not reach a verdict. The evidentiary portion of defendant’s first trial occurred in November and December of 2012; the evidentiary portion of defenda nt’s retrial occurred in July 2013.

2 S.J. also testified that defendant’s brother shot him in April 2012, in apparent retaliation for his cooperation with the authorities . We discuss this episode in g reater detail later in the opinion.-2- frequent customer of the drug house, who saw a man who resemble d defendant leaving the house with a shotgun on the morning of the shooting. 3 The customer also gave a statement and description to the pol ice, and identified defendant as the man he saw from a photographic lineup.

The jury convicted defendant of first degree felony murder und er MCL 750.316(1)(b), second degree murder under MCL 750.317, assault with intent to commit murder under MCL 750.83, felon in possession of a firearm under MCL 750.224f, an d possession of a firearm during the commission of a felony under MCL 750.227b.

On appeal, defendant argues that the trial court denied him a fair trial when it: (1) denied defendant’s motion for an extended adjournment 4 ; (2) allowed introduction of in-court identifications supposedly taint ed by “suggestive” photographic lineups; (3) permitted testimony on a retaliatory shooting allegedly committed by defendant’s br other; and (4) issued a jury instruction on aiding and abetting. 5 Defendant also claims that his conviction for second degree murder must be vacated because it violates the prohibition agai nst double jeopardy.

II. ANALYSIS

A. ADJOURNMENT REQUEST

1. WAIVER

A preserved challenge to a tria l court’s decision on whether t o grant an adjournment is reviewed for an abuse of discretion. People v Jackson , 467 Mich 272, 276; 650 NW2d 665

3 The customer, A.B., testified that he was driving his car past the drug house the morning of the murders, because he inte nded to go inside to buy drugs.

4 Defendant also asserts that the trial court’s action is linked to ineffective assistance from his attorney—namely, that his attorn ey did not have adequate time t o prepare for his case.

5 Defendant also makes a frivolous argument that involves the pr ovision of transcripts of witness testimony to the jury. The jury made a reasonable request to r ehear S.J.’s testimony. People v Howe , 392 Mich 670, 677; 221 NW2d 350 (1974). Contrary to defendan t’s argument, the trial court repeatedly advised the jury of its intent to supply the e ntirety of S.J.’s testimony as soon as it could, part in writing and part by read back. The trial cou rt also ensured fairness to the defense by urging the jury to review both the transcribed portion of S.J .’s testimony and the portion to be later read back. The trial court acted within the discretion v ested by MCR 2.513(P) when it repeatedly informed the jury of its intent to provide the entir ety of S.J.’s trial testimony and instructed the jury to consider the entire testimony. People v Carter , 462 Mich 206, 218; 612 NW2d 144 (2000). Defendant’s citation of federal case law, whi ch supposedly cautions against reading back only a portion of trial testimony, ignores the Mic higan Supreme Court’s repeated rejections of any basis for concern in following this procedure

. Howe , 392 Mich at 675-676; Klein v Wagenheim , 379 Mich 558, 561; 153 NW2d 663 (1967).-3- (2002). 6 A defendant waives his abilit y to challenge the length of an adjournment “when defense counsel clearly expresses satisf action with the trial court’s d ecision” on the adjournment. People v Kowalski , 489 Mich 488, 503; 803 NW2d 200 (2011) (internal quotations a nd citation omitted) (explaining that waiver occurs when a party intentionally relin quishes or abandons a known right, and a party “who waives his rights under a rule may not then seek appellate review of a claimed deprivation of those righ ts, for his waiver has extingu ished any error”).

Here, defendant’s attorney requested an adjournment to read tr ial transcripts and depositions from defendant’s first trial. The trial court gran ted an adjournment of one day to give defense counsel an opportunity to adequately review the re cord, and specifically asked the attorney whether he would be “completely prepared” to “go forwa rd with the trial,” to which the attorney responded “by tomorrow, I will be prepared your Honor. ” Because “defense counsel clearly expresse[d] satisfaction with [the] trial court’s decis ion [on the adjournment], counsel’s action will be deemed to constitute a waiver,” and defendant is barred from raising any claim related to the trial court’s one day adjournment of the trial. Kowalski , 489 Mich at 503. 7

Despite the fact that defendant has waived his argument that t he trial court abused its discretion on his request for adjournment, he links this argume nt with a claim for ineffective assistance of counsel—namely, because his retrial attorney did not make effective use of the record from his first trial, t he retrial attorney gave him inef fective assistance. 8

2. INEFFECTIVE ASSISTANCE OF COUNSEL

Because defendant did not seek a new trial or an evidentiary h earing on the basis of any alleged ineffective assistance of counsel, our review is limite d to “errors apparent on the record.” People v Lockett , 295 Mich App 165, 186; 814 NW2d 295 (2012). Whether a defend ant has received the effective assistan ce of counsel comprises a mixed question of fact and law. People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002). “The trial court’s f actual findings are reviewed for clear error, while its constitutional determinatio ns are reviewed de novo.” Lockett
, 295 Mich App at 186.

“In Strickland v Washington , the Supreme Court of the United States stated that in order to receive a new trial on the ba sis of ineffective assistance o f counsel, a defendant must establish

6 The Michigan Supreme Court has noted that the terms “adjournme nt” and “continuance” are used interchangeably to descri be the process of adjourning a tr ial. Jackson , 467 Mich at 276 n 5.

7 The section addressing the adjournment in defendant’s brief on appeal distorts the record on occasion. For instance, defendant states that his defense coun sel had not had time to review

“ eight volumes of transcript from the previous trial,” when in fact defendant ’s attorney received 300 pages of transcript and deposit ion testimony (emphasis orig inal).

8 As we explain infra, defense counsel’s performance at retrial actually demonstrates an extensive familiarity with the record of the original trial, an d further belies defendant’s claims that the trial court abused its discretion in refusing to grant a new attorney and/or longer adjournment.-4- that ‘counsel’s representation fell below an objective standard of reasonableness’ and that ‘there is a reasonable probability tha t, but for counsel’s unprofessio nal errors, the result of the proceeding would have been different.’ ” People v Vaughn , 491 Mich 642, 669; 821 NW2d 288 (2012), quoting Strickland v Washington , 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). 9 Effective assistance of counsel is “strongly presumed, and th e reviewing court should not evaluate an attorney’s decisi on with the benefit of hindsig ht.” People v McMullan , 284 Mich App 149, 155; 771 NW2d 810 (2009). Furthermore, defense counse l possesses “wide discretion in matters of trial strategy.” People v Odom , 276 Mich App 407, 415; 740 NW2d 557 (2007).

Here, as noted, defendant assert s that his attorney gave him i neffective assistance because the attorney supposedly did not use inconsistent testimony from the first trial to impeach two witnesses, S.J. and A.B., at r etrial. Though defendant raises multiple instances of alleged ineffective assistance, all of his allegations lack merit, and only one deserves extended discussion. 10

Defendant says that his attorney should have made use of S.J.’ s testimony from the first trial, which stated that S.J. di d not immediately name defendan t as the shooter when the police arrived at the scene. But it is unlikely defendant’s attorney needed to draw any distinction between S.J.’s testimony on this subject at the first trial and S.J.’s testimony during the retrial, because his retrial testimony on the matter was similar to his original testimony. In any event, defendant’s lawyer spent almost the entirety of his closing arg ument questioning the accuracy and veracity of S.J.’s testimony. And defense counsel specific ally emphasized that some of the

9 To demonstrate that his lawyer’s performance fell below an obj ective standard of reasonableness, a defendant must show that “the identified acts or omissions were outside the wide range of professionall y competent assistance.” Vaughn , 491 Mich at 670.

10 Defendant’s other claims for ineffective assistance are belied by the record. Defendant says defense counsel failed to impeach S.J.’s retrial testimony that he did not hear gunshots while in the attic, with S.J.’s testimony at preliminary examination tes timony that he heard gunshots while in the attic—when in fact counsel impeached S.J.’s retria l testimony for this reason. The same is true of defendant’s claim that counsel failed to impeac h S.J.’s retrial testimony that the shots he heard while in the bath room were from a high-caliber w eapon, with S.J.’s preliminary examination testimony that the shots while in the bathroom were from a handgun. Again, defendant’s retrial attorney impeached S.J.’s retrial testimony for this reason. Likewise, defendant’s claim that counsel should have impeached S.J.’s ret rial testimony on defendant’s appearance ignores the fact that counsel highlighted inconsiste ncies in S.J.’s testimony on defendant’s appearance. And despite defendant’s claims that co unsel did not use S.J.’s original trial testimony on his marijuana use to impeach his retrial tes timony on the same, defense counsel actually did impeach S.J. on this topic. In addition, defendant’s assertion that counsel did not impeach A.B.’s retrial testimony on the appearance of the shooter, with a portion of A.B.’s testimony f rom the original trial that described the shooter as looking similar to S.J., ignores the f act that counsel questioned A.B. on this subject.-5- police officers who responded to the scene documented only S.J. ’s statement that an unknown black male had shot at him. In sum, the record belies defendan t’s extensive claims of ineffective assistance, and he has failed to establish that counsel deprive d him “of a substantial defense.” People v Russell , 297 Mich App 707, 716; 825 NW2d 623 (2012).

B. PHOTOGRAPHIC LINEUPS

A trial court’s decision on wh ether to suppress identification evidence is reviewed for clear error. People v McDade , 301 Mich App 343, 356; 836 NW2d 266 (2013). “Clear error exists when the reviewing court is left with a definite and fir m conviction that” the trial court made a mistake. Id . “Issues of law relevant to a m otion to suppress are reviewed de novo.” Id

. “A photographic identification pr ocedure violates a defendant’ s right to due process of law when it is so impermissibly suggestive that it gives rise t o a substantial likelihood of misidentification.” People v Gray , 457 Mich 107, 111; 577 NW2d 92 (1998) (footnote omitted). A court reviewing whether a lineup is impermissibly suggestive may consider the following:

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of atte ntion, the accuracy of the witness’ prio r description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. [ People v Kurylczyk , 443 Mich 289, 306; 505 NW2d 528 (1993) (opinion by G RIFFIN , J.).]

If an identification procedure is “impermissibly suggestive,” the reviewing court then must determine “whether the vic tim had an independent basis to identify the defendant in court.” Gray , 457 Mich at 114–115. The defendant bears the burden of estab lishing that a lineup was unconstitutional. People v Williams , 244 Mich App 533, 542; 624 NW2d 575 (2001).

Here, defendant unconvincingly a rgues that the police gave S.J . and A.B. impermissibly suggestive pretrial photographic lineups, and that the trial co urt erred when it refused to suppress their identification testimony. 11 Both S.J. and A.B. identified defendant in photographic lineu ps that were not “impermissibly suggestive.”

11 Defendant also argues that the prosecution did not establish t hat either S.J. or A.B. possessed an independent basis for identifying defendant in court. This inquiry is irrelevant, however, because the pretrial photographic lineups given to both S.J. an d A.B. were not impermissibly suggestive. See Gray , 457 Mich at 114–115; and People v Barclay , 208 Mich App 670, 675; 528 NW2d 842 (1995) (“[t]he need t o establish an independent ba sis for an in-court identification arises where the pretrial identification is tain ted by improper procedure or is unduly suggestive”). In any event, were we to assume that the photographic lineups w ere impermissibly suggestive, both S.J. and A.B. had independent bases to identify defendant. Defendant concedes that he and S.J. knew one another, and S.J. t estified that he had an unobst ructed view of defendant when he-6- S.J. viewed the photographic lineup on December 12, 2011, less than two weeks after the shootings. Both S.J. and a police officer testified that S.J. was mentally alert during the viewing, and that S.J. immediately identi fied defendant as the shooter w ith certainty. S.J. denied that the police suggested which photograph he should select. Instead, S .J. stated that he immediately selected defendant as the assailant because he had encountered defendant on at least 25 occasions before the shooting, and that he had an unobstructed view of de fendant when he attempted to escape the shooting down the stairway. And, though S.J. recall ed that, when presenting the photo array, a police officer asked him which man shot him, “th e fact a victim is told the attacker is in the lineup does not alone render a lineup unduly suggesti ve.” People v Sawyer , 222 Mich App 1, 3; 564 NW2d 62 (1997).

A.B. viewed a photographic lineu p two weeks after the shooting . Both A.B. and a police officer testified that a police officer asked A.B. whether he r ecognized anyone on the array from the drug house, and that A.B., without coercion or suggestion, selected the photograph of defendant as the man he saw holding a shotgun outside the house the morning of the shooting. A.B. and the officer’s testimony differed only in that the offi cer estimated A.B. selected defendant’s photograph in approxim ately five seconds, while A.B . did not recall the precise amount of time it took for him to m ake the selection. Again, A .B. testified that on the morning of the shooting, while he was driving past the drug house, he s aw a man, who wore nothing to conceal his head, leaving the house with a shotgun.

As such, there is nothing in the record that indicates that th e photographic lineup was so “impermissibly suggestive” that it violated defendant’s constit utional rights. 12 Accordingly, the trial court properly rejected de fendant’s attempt to suppress t he identification evidence.

C. OTHER ACTS EVIDENCE

1. LEGAL STANDARDS

attempted to flee the shooting. A .B. testified that he saw a m an who looked liked defendant leaving the drug house with a shot gun immediately after the sho oting.

12 Defendant also makes two unavailing arguments related to the a ppearance of the people in the photographs. His claim that hi s lineup photograph includes a c learly visible teardrop tattoo near his eye is belied by the photograph—we are not able to discern a tattoo or anything else unfairly suggestive about the photograph array, and nothing in the evide ntiary hearing indicates that such a tattoo was apparent to S.J. and A.B. when they made the ident ification. And, in any event, “[p]hyiscal differences generally relate only to the weight of an identification and not to its admissibility.” People v Hornsby , 251 Mich App 462, 466; 650 NW2d 700 (2002); and McDade , 301 Mich App at 357. Defendant also says that the lineup was suggestive because S.J. and A.B. identified him as having either an afro or braids, and facial hair, but the lineu p did not contain photographs with individuals that had afros or br aids, or facial hair. However, defendant fails to explain how these differences in appearance would result in a substantial likelih ood of misidentification, “as opposed to merely constituting ‘noticeable’ differences.” McDade , 301 Mich App at 358.-7- Preliminary legal issues “regarding [evidence] admissibility ba sed on construction of a constitutional provision, rule of evidence, court rule, or stat ute” are reviewed de novo. People v Jambor (On Remand) , 273 Mich App 477, 481; 729 NW2d 569 (2007). A trial court’s ruling whether to admit evidence is reviewed for an abuse of discretio n. Id . “A trial court abuses its discretion when its decision falls outside the range of princip led outcomes.” People v Feezel
, 486 Mich 184, 192; 783 NW2d 67 (2010) ( internal quotation and c itation omitted).

MRE 404(b)(1) 13 prohibits the admission of evidence of a defendant’s other act s or crimes if it is introduced solely for the purpose of showing th at defendant’s action conformed with his criminal character. People v Sabin (After Remand) , 463 Mich 43, 56; 614 NW2d 888 (2000). Evidence of a defendant’s other acts or crimes is admi ssible when: (1) “t he prosecutor . . . offer[s] the ‘prior bad acts’ evidence under something other than a character or propensity theory”; (2) the other acts evidence is relevant under MRE 402; (3) the probative value of the evidence is not substantially outweighed by the risk of unfair prejudice under MRE 403. People v Knox , 469 Mich 502, 509; 674 NW2d 366 (2004). On request, the tria l court may provide a limiting instruction that describes the proper consideration of other acts evidence. People v Starr , 457 Mich 490, 496; 577 NW2d 673 (1998).

Evidence “other than a character or propensity theory” includes evidence that shows a defendant’s “scheme, plan, or system.” MRE 404(b)(1). Relevan t evidence is evidence that “make[s] a material fact at issue more probable or less probabl e than it would be without the evidence.” People v Crawford, 458 Mich 376, 387; 582 NW2d 785 (1998).

Relevant evidence can be excluded if it “its probative value is substantially outweighed by the danger of unfair prejudice. . .” MRE 403. “Unfair prej udice may exist where there is a danger that the evidence will be given undue or preemptive weig ht by the jury or where it would be inequitable to allow use of the evidence.” People v Blackston , 481 Mich 451, 462; 751 NW2d 408 (2008). Evidence is not unfairly prejudicial simply becaus e it “damage[s] . . . the [defendant’s] cause.” People v Vasher , 449 Mich 494, 501; 537 NW2d 168 (1995). When it balances the probative force of e vidence against its prejudicia l effect, a court may look to

the time required to present the evidence and the possibility o f delay, whether the evidence is needlessly cumulative, how directly the evidence to prove the fact for which it is offered, how essential the fact sought to be proved is to the case, the potential for confusing or misleading the jury, and whether the fact can be proved

13 MRE 404(b)(1) states that: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may , however, be admissible for other purposes, such as proof of motive, opportunity, inten t, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absenc e of mistake or accident when the same is material, whether such other crimes, wrongs, o r acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.-8- in another matter without as many harmful collateral effects. [ Blackston , 481 Mich at 462.]

“Rule 403 determinations are best left to a contemporaneous as sessment of the presentation, credibility, and effect of the testimony by the t rial judge.” Id . (internal quotation marks omitted).

2. FACTUAL BACKGROUND

In defendant’s retrial, S.J. tes tified that he identified defen dant as the shooter at a February 2012 preliminary examination, and that he saw defendan t and his brother, Rahman Banks, in court during other prel iminary examination hearings. The prosecutor also played a recorded January 2012 telephone conversation 14 between Rahman and defendant for the jury, in which the brothers cryptically discuss exchanging “information” on an unidentified person. The conversation indicated that Rahman was monitoring someone—he to ld defendant “I been sittin’ there for a minute and I ain’t seen him,” and that Rahman “got connections.”

S.J. testified that in April 2012, he was walking along Gratiot Avenue during the day, when Rahman emerged from a stopp ed truck, drew a handgun, state d “What’s up now?”—which S.J. understood to mean retaliation—and shot S.J. five or six t imes. 15 The Wayne County Sherriff’s deputy testified that Rahman visited defendant in ja il three days before this shooting occurred.

Over defendant’s objection at his initial trial, the court held that the Rahman-related testimony and phone conversation were admissible under MRE 404( b), and that they were not unfairly prejudicial under MRE 4 03. It reasoned that the recor d supported a reasonable determination that defendant par ticipated in planning S.J.’s se cond shooting. Defendant’s attorney again objected to the evidence at retrial, but the tri al court again admitted the evidence, and made reference to its ear lier ruling on the matter.

Defendant makes two linked arguments on appeal to claim that th e trial court abused its discretion when it admitted the testimony on the above evidence . He says that the testimony on Rahman’s attack on S.J., the April 2012 jail visit, and the pho ne recording were used as “other acts” evidence for improper purpo ses that violated MRE 404(b). In the alternative, defendant argues that the probative value of this evidence was substantia lly outweighed by its unfairly

14 Defendant made the phone call from the Wayne County Jail, and a sheriff’s deputy testified that the phone call was recorde d, as are all phon e calls from t he jail.

15 S.J. testified that he identified Rahman Banks as his April 20 12 assailant to the police and at Rahman’s trial. After a bench t rial in the Wayne Circuit, the court convicted Rahman of multiple crimes, including witness intimidation and retaliation against a witness. Another panel of our Court affirmed most of the trial court’s ruling. See People v Rahman Banks , unpublished opinion per curiam of the Court of Appeals, issued June 17, 201 4 (Docket No. 313887), slip op at 5–9. Application for leave to the Michigan Supreme Court re mains pending.-9- prejudicial effect, and thus s hould have been barred under MRE 403. Neither argument is convincing, and we address each in turn.

3. APPLICATION

3A. MRE 404(B)(1)

Defendant’s specific assertions regarding MRE 404(b)(1)—namely, that the prosecutor failed to establish defendant’s involvement in the April 2012 s hooting, and that the trial court improperly allowed the jury to dr aw its own conclusions on this matter—are flawed because they are largely unrelated to the types of evidence that MRE 404(b)( 1) is intended to prohibit. As noted, MRE 404(b)(1) is intended to prevent evidence used to sh ow that defendant acted in conformance with his criminal character. But defendant does no t argue in these terms. Instead, he states that the evidence failed to connect him to the April 2012 shooting—an issue which is not relevant to a MRE 404(b)(1) determination. 16

In any event, defendant’s arguments, such as they are, are wron g. This is true whether they are analyzed under MRE 404(b)(1) or simple common sense. The phone conversation, 17 jail visit, and testimony on Rahman’s attack do connect defendant to the second shooting of S.J. Together, they give rise to the reasonable inference that defen dant asked Rahman to kill S.J., the main witness against him, before S.J.’s further testimony at th e preliminary examination and before the hearing dat e originally scheduled to suppress S.J.’s identification testimony.

Accordingly, the evidence was relevant to defendant’s case—it t ended to demonstrate that S.J. correctly identified defendant as the November 2011 s hooter who committed two murders. 18 It possessed even more relevance because defendant’s trial st rategy involved

16 Defendant’s complaint that the trial court delegated to the ju ry the court’s responsibility to determine whether the prosecutor had provided sufficient founda tional evidence “to support a finding by the jury that the defendant committed the other act, ” is without merit. People v Vandervliet , 444 Mich 52, 92; 508 NW2d 114 (1993) (opinion of L EVIN , J.), amended 445 Mich 1205 (1994). Defendant did not raise t his claim in the trial c ourt and mischaracterizes the record. The record reveals that the tri al court implicitly found that t he prosecutor had presented sufficient foundational evidence.

17 Nor is the phone conversation is hearsay—it was not offered to prove that Rahman “got connections” or whether he was “ sittin’ there for a minute and . . . ain’t seen him.” Instead it was offered to show that S.J. credibly identified defendant as the gunman who shot him and murdered two others in November 2011. See MRE 801.

18 See People v Sholl , 453 Mich 730, 740; 556 NW2d 851 (1996) (affirming the trial c ourt’s admission of the defendant’s threat against a victim independen t of MRE 404(b) because “[a] defendant’s threat against a witness is generally admissible” a s “conduct that can demonstrate consciousness of guilt”).-10- discrediting the veracity of S.J.’s testimony. The prosecution explicitly used the evidence for these purposes—it did not use the evidence to show that defenda nt was a bad person who committed the November 2011 murders in conformity with his bad character. Because the prosecution did not use the phone conversation, jail visit, and testimony on Rahman’s attack in this way, defendant’s MRE 404(b)(1) argument is inapposite and irrelevant to the determination of this case. 19

As such, although the trial court erroneously admitted the abov e evidence under MRE 404(b), the court reached the cor rect result and properly admit ted the evidence. People v Powell
, 303 Mich App 271, 279 n 1; 842 NW2d 538 (2013).

3B. MRE 403

Defendant’s argument that the trial court erred when it refuse d to bar the jail visit, phone recording, and Rahman-related testimony under MRE 403 is equall y unavailing. None of the evidence required much time to present or caused any likelihood of delaying the trial, nor was it cumulative. It tended to show defendant’s consciousness of gui lt in the November 2011 shooting and enhanced the credibi lity of S.J.’s identification of defendant as th e shooter, both matters in dispute. There is no potential that the evidence on Rahman’s April 2012 attack on S.J. might have confused or misled the jury as to the crimes for whi ch defendant had been charged— the November 2011 drug house shooting. And there is no indicat ion that the prosecutor could have bolstered S.J.’s credibility on the November 2011 shooting by presenting other evidence that would not have had “as many ha rmful collateral effects.” Blackston , 481 Mich at 462.

Accordingly, the trial court properly held that MRE 403 did not require exclusion of evidence on the jail visit, phone recording, or testimony on Ra hman’s April 2012 shooting of S.J.

D. AIDING AND ABETTING JURY INSTRUCTION

Claims of instructional e rror are reviewed de novo. People v Bartlett , 231 Mich App 139, 143; 585 NW2d 341 (1998). Jury instructions must include all elements of the charged offenses, and must not omit material issues, defenses, and theo ries that the evidence supports. Id . Jury instructions do not qualify as erroneous if they fairly present to the jury the issues to be tried and sufficiently protect the defendant’s rights. People v Knapp , 244 Mich App 361, 376; 624 NW2d 227 (2001). An appellate court confines its review of unpreserved instructional challenges to a determination of whether plain error affected t he defendant’s substantial rights. Kowalski , 489 Mich at 505–506.

See also People v Spillman , 399 Mich 313, 320; 249 NW2d 73 (1976) (admitting evidence of the defendant’s crime against the same victim because it “tends to make this witness’ identification of defendant more credible”).

19 Moreover, the trial court instructed the jury that it should n ot consider evidence on Rahman’s April 2012 shooting of S.J. as proof that defendant “is a bad p erson or . . . is likely to commit crimes.” See Blackston , 481 Mich at 462.-11- Defendant argues that the trial court erred when it issued an a iding and abetting jury instruction, and asserts that the instruction denied him a fair trial. But defense counsel waived appellate review of any instructional issues. Before the trial court read the jury the final instructions, the prosecutor stat ed that she had given the cour t a copy of the requested instructions, and defense counsel responded, “I have had a chan ce to look at them. I have no objections.” In so doing, defenda nt waived his right to challe nge instructional issues on appeal. 20

In the alternative, defendant s ays his counsel provided him in effective assistance by failing to challenge the aiding and abetting instruction. 21 “To place the issue of aiding and abetting before a trier of fact, the evidence need only tend to establish that more than one person committed the crime, and that the role of a defendant charged a s an aider and abettor amounts to something less than the direct commission of the offense.” People v Vaughn , 186 Mich App 376, 382; 465 NW2d 365 (1990).

The trial court did not explain the evidentiary basis that war ranted the aiding and abetting instruction during the retrial, presumably because defense coun sel said he had no instructional objections. Nor did the prosecu tor offer evidence that anyone else participated in the charged crimes, and no evidence gave rise to a reasonable inference tha t any other individual participated as a potential guilty principal. Vaughn , 186 Mich App at 382. Accordingly, the trial court should not have issued the instruction on aiding and abetting.

The trial court’s error, however, was harmless. Ample, properl y admitted evidence established defendant’s guilt, including the eyewitness identif ication testimony by S.J. and A.B. And, dispositive in the context of a claim for ineffective assi stance of counsel, defendant is unable to show that the outcome of his trial “would have been d ifferent” had his counsel objected to the aiding and abetting instruction. Vaughn , 491 Mich at 669.

E. DOUBLE JEOPARDY 22

If a jury convicts a defendant of both second degree murder an d first degree felony murder, and both convictions arose from the same victim’s killi ng, the constitutional prohibition against double jeopardy is violated. People v Clark , 243 Mich App 424, 429; 622 NW2d 344

20 See Kowalski , 489 Mich at 504–505 n 28 (approvingly citing multiple Court o f Appeals decisions holding that an attorney’s statement, “I have no obje ctions,” embodied “express and unequivocal indications that he app roved of the instructions,” and affirmatively waived and extinguished claims of appellate error).

21 See section A2, supra, for a discussion on the relevant legal standards for evaluating a claim for ineffective assistance of counsel.

22 Because defendant failed to raise a double jeopardy claim befo re the trial court, the issue is unpreserved, and we review the ma tter only to ascertain whether any plain error “affected the defendant’s substantial rights, t hat is, the error affected the outcome of the lower court proceedings.” People v McGee , 280 Mich App 680, 682; 761 NW2d 743 (2008).-12- (2000). In such a situation, the judgment can be remedied by v acating one of the sentences and retaining the other. Id

. Here, the jury convicted defendant of four counts of murder fo r the killings of two victims: first degree felony murder and second degree murder f or the killing of one victim, and first degree felony murder and second degree murder for the kil ling of the other. At the sentencing hearing, the trial court acknowledged that the jury had returned four murder convictions for the killing of two victims, recognized that “a Defendant cannot be sentenced on two different types of murder,” and vacated the “second degree murder counts.” Defendant provides no authority that instruct s a trial court to use any o ther particular language to effectively vacate a conviction and sentence, and his argument that the tri al court did not effectively vacate his sentences for second degree murder has no merit whatsoever. 23

Affirmed.

/s/ Christopher M. Murray /s/ Henry William Saad /s/ Kirsten Frank Kelly

23 The Michigan Department of Co rrections’ Offender Tracking Info rmation System website for defendant lists only his two fir st degree felony murder convict ions as active sentences.