If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

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

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

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

March 5, 2020

v No. 340893

Clinton Circuit Court

WILLIAM MATTHEW WORKMAN, LC No. 17-009801-FH

Defendant-Appellant.

Before: MURRAY, C.J., and STEPHENS and SHAPIRO, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions1of two counts of breaking and 

entering a building with intent to commit a larceny, MCL 750.110, and one count of unlawfully 

driving away an automobile (UDAA), MCL 750.413. Defendant was sentenced as a fourth felony 

habitual offender to a prison term of 15-40 years. We affirm in part and remand in part.

I. BACKGROUND

Defendant’s convictions arise from offenses committed in the early morning hours of 

December 22 and 23, 2016. On December 22, 2016, MPC Cashway Lumber (MPC) a business in 

Clinton County, Michigan was broken into in the middle of the night. Shortly thereafter, a 2005 

Ford Focus was stolen from TL Contracting (TL), a neighboring business. On the same day, a 

pole barn was broken into on Taft Road in Bingham Township, Clinton County, Michigan. On 

December 23, 2016, shortly after midnight, a firearm was stolen out of a vehicle parked in a 

subdivision north of Fowler around midnight. Both the TL and Taft Road locations had 

surveillance video of the break-ins that occurred on December 22. Defendant was known to law 

enforcement in Clinton County at the time and was a suspect in some other criminal events that 

occurred during this period. After reviewing the surveillance video, which matched defendant’s 

physique, an investigation began into defendant for the December break-ins. Defendant was 

arrested on December 28, 2016, for a parole violation by a St. Johns’ police officer and held at the 

 

1 The trial court dismissed one count of larceny of a firearm.
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Clinton County Jail. While at the jail, defendant asked a corrections officer if he could have his 

phone back to make a call. The officer gave him the phone and defendant performed a factory 

reset. 

On January 3, 2017, Deputy Michael Leasher, a forensic cell phone analyst for the Clinton 

County Sheriff’s Department, and Detective Sean Dush, a lieutenant with the Clinton County 

Sheriff’s Office, went to the home of defendant’s girlfriend, Christine Moggo. Moggo had visited 

the defendant in the Clinton County jail on December 31, 2016. They informed her that they had 

viewed the video from her visit and wanted to know what was on the paper that defendant showed 

her during the visit. She told them that the note contained the username and password for his 

Google account and that he asked her to delete the account, specifically the Google Maps 

application. Moggo was unable to log into the account with the password given to her by the 

defendant so she reset the password. However, she had not deleted the account. Using the 

password provided to him by Moggo, Deputy Leasher logged into defendant’s Google account 

and changed the password in order to preserve the account. He then obtained a search warrant for 

defendant’s phone and for the Google accounts connected to that phone. Upon receiving the 

warrant, he did a phone dump using software called Cellebrite and then reviewed all the tracking 

data from defendant’s phone including the GPS locations recorded. 

At trial, Deputy Leasher testified that he used the Google Maps’ information he had 

obtained from defendant’s phone to generate a map and provided a timeline of the phone’s 

locations on December 22 and 23, 2016. He testified that beginning at midnight on December 22, 

the map showed the location of defendant’s phone to be at 1207 Cleo Street in Lansing where the 

defendant resided. From there the phone’s GPS location showed the phone was transported to the 

location of MPC Lumber and its neighboring business TL Contracting which was in walking 

distance from MPC. From TL Contractors the phone was tracked to Taft Road and was there 

roughly for about a half hour. From Taft Road, the phone was tracked back to defendant’s 

residence at Cleo Street and then to defendant’s girlfriend’s apartment in St. Johns. Regarding 

December 23, he testified that the phone’s GPS location showed that the phone had been 

transported north of Fowler sometime between 12:14 a.m. and 1:01 a.m. From there the phone 

was tracked toward Lansing where it was stationary at Clark Rd from 3:44 a.m. to 4:20 a.m. When 

the phone started moving again, it was tracked to defendant’s house on Cleo Street. Deputy 

Leasher also testified that the officers retrieved a backpack from defendant’s brother’s house 

(where defendant was residing) and that backpack or one similar to it was seen on the surveillance 

video from TL Contractors security on the night of the break-in. Detective Dush testified that a 

bike that belonged to defendant’s brother was found by the gate of TL Contractors.

Defendant’s friend, Delton Warren and Moggo also testified. Warren testified that the 

defendant called him in the early morning hours of December 23 and asked him for a ride. When 

Warren picked him up, defendant first told Warren that he had been driving a girlfriend’s car when 

he swerved off the road into a ditch trying to avoid hitting a deer. He then later admitted that the 

car he had been driving was stolen. Moggo testified that she found a ski mask in her home after 

her interview with the detectives and turned it over to the police. The mask matched the mask 

seen on the surveillance video worn by the individual who stole the Ford Focus from TL 

Contracting. 

The jury returned a guilty verdict from which defendant now appeals. 
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II. UNREASONABLE SEARCH AND SEIZURE

Defendant first argues that the evidence obtained from the search of his Google Cloud 

account should have been suppressed because the search was “warrantless” given that the warrant 

procured by the police did not authorize the search of his Cloud data. We disagree. 

Defendant did not file a motion to suppress in the trial court, thus this issue is unpreserved 

on appeal. This Court reviews unpreserved issues for plain error affecting the defendant’s 

substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

In general, law enforcement officers are required to obtain a warrant before executing a 

search. “The Fourth Amendment of the United States Constitution and its counterpart in the 

Michigan Constitution guarantee the right of persons to be secure against unreasonable searches 

and seizures.” People v Kazmierczak, 461 Mich 411, 417; 605 NW2d 667 (2000) (citations 

omitted). People v Frohriep, 247 Mich App 692, 702; 637 NW2d 562 (2002). Searches without 

a warrant are unreasonable “subject only to a few specifically established and well-delineated 

exceptions.” Katz v United States, 389 US 347, 357; 88 S Ct 507; 19 L Ed 2d 576 (1967).

The search warrant obtained by the police in this matter included the following language:

The PROPERTY to be searched for and seized, if found, is specifically described 

as: Subscriber and Call Logs, to include Cloud, SMS and MMS data for the phone 

number 517-204-4575. To include all Email’s [sic] to and from account 

worksrightl@gmail.com. To include subscriber name, means of account payment, 

credit cards used, locations of payments and the previously mentioned log and file 

data for the dates of September 14, 2016 through December 31, 2016. Also any 

IP numbers associated with or used to place calls from.

We find, contrary to the defendant’s argument, that the warrant specified defendant’s Google 

Cloud data. Accordingly, the evidence procured from the search of defendant’s Google Cloud 

account was not unlawfully obtained by means of a “warrantless” search.

III. INSUFFICIENT EVIDENCE

Defendant next contends that there was no direct evidence to support the prosecution’s 

argument that defendant was the individual who logged into his Google Cloud account nor the 

person carrying his phone in the early morning hours of December 22-23, 2016. We disagree.

In reviewing a claim of insufficient evidence, the evidence presented below must be viewed 

in the light most favorable to the prosecution; the test is whether a rational trier of fact could have 

found that the essential elements of the crime were proven beyond a reasonable doubt. People v 

Wolfe, 440 Mich 508, 515-516; 489 NW2d 748 amended on other grounds 441 Mich 1201 (1992); 

People v Hutner, 209 Mich App 280, 282; 530 NW2d 174 (1995).

Contrary to defendant’s argument, direct evidence is not required. “Circumstantial 

evidence and reasonable inferences arising therefrom can sufficiently establish the elements of a 

crime.” People v Schultz, 246 Mich App 695, 702; 635 NW2d 491 (2001). To sustain a conviction 

for breaking and entering with intent to commit larceny, it must be established that “(1) the 
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defendant broke into a building, (2) the defendant entered the building, and (3) at the time of the 

breaking and entering, the defendant intended to commit a larceny therein.” People v Toole, 227 

Mich App 656, 658; 576 NW2d 441 (1998). The elements of UDAA are: “(1) possession of a 

vehicle, (2) driving the vehicle away, (3) that the act is done willfully, and (4) the possession and 

driving away must be done without authority or permission.” People v Hendricks, 200 Mich App 

68, 71; 503 NW2d 689 (1993). It is undisputed that someone broke into MPC Lumber and then 

later a pole barn on Taft Road and stole property. There is also no dispute that someone stole a 

vehicle from TL Contracting’s parking lot. 

We conclude that the evidence on the issue of whether the defendant was the perpetrator 

of the crimes was sufficient. In addition to Deputy Leasher’s testimony regarding the location of 

the cell phone, there was also testimony given by him that defendant’s phone was used to look up 

the location of MPC on December 22 while the phone was located at 1207 Cleo Road, where the 

defendant was residing with his brother. As noted previously, the phone was tracked to the 

locations of the break-ins and the car theft at times contemporaneous with the crimes. Moggo, 

who both purchased and paid for the phone, testified that the defendant was very protective of his 

phone and did not allow others access to it. 

Not only was there evidence that linked defendant’s phone to the location of the crimes,

but defendant’s friend, Delton Warren, also testified to defendant’s admission that the car he drove 

into a ditch on the 23rd was stolen. Additionally, a backpack recovered from defendant’s room 

and a ski mask recovered from defendant’s ex-girlfriend’s house matched the backpack and mask 

seen in the video taken from TL Contracting. Lastly, when the police responded to the MPC break 

in, they found defendant’s brother’s bike leaning on a fence outside.

Viewing the circumstantial evidence and reasonable inferences in the light most favorable 

to the prosecution, there was sufficient evidence to convince a jury beyond a reasonable doubt that 

defendant committed the crimes for which he was convicted.

IV. PROSECUTORIAL MISCONDUCT

Defendant argues that the prosecutor and its witness misled the jury regarding the process 

by which the detective gained access to defendant’s Google Cloud account. We disagree. 

Defendant failed to object to the prosecutor’s statements so this issue is unpreserved. 

“Unpreserved issues are reviewed for plain error affecting substantial rights.” People v Bennett, 

290 Mich App 465, 475; 802 NW2d 627 (2010). “Reversal is warranted only when plain error 

resulted in the conviction of an actually innocent defendant or seriously affected the fairness, 

integrity, or public reputation of judicial proceedings.” Id. at 475-476 (citation omitted).

“Although a prosecutor may not argue facts not in evidence or mischaracterize the evidence 

presented, the prosecutor may argue reasonable inferences from the evidence.” People v Watson, 

245 Mich App 572, 588; 629 NW2d 411 (2001). “To determine if a prosecutor’s comments were 

improper, we evaluate the prosecutor’s remarks in context, in light of defense counsel’s arguments 

and the relationship of these comments to the admitted evidence.” People v Seals, 285 Mich App 

1, 22; 776 NW2d 314 (2009). 
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In support of his argument, defendant argues that the prosecution witness, Deputy Leasher 

and the prosecutor improperly referred to the researched Google Cloud GPS history of the 

defendant’s cell phone as “defendant’s GPS history.” Defendant contends Deputy Leasher should 

have testified that he researched defendant’s Google Cloud GPS history for “whoever” was logged 

into the account. Defendant further contends that the prosecutor’s citation to this testimony and

use of the word “his” misled the jury to believe that the Google search resulted in a definitive 

determination that the defendant was the person using the cellphone. In context, we find that 

neither the witness to whose testimony was referenced, nor the prosecutor made such an assertion. 

It is apparent to this Court that “his” in this context refers to the owner of the account as opposed 

to a definitive declaration by the prosecution (or its witness) that it was defendant in possession of 

the phone generating the GPS history. Moreover, if there was any “confusion”, it could have been 

further clarified on cross-examination. 

V. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant’s ineffective assistance of counsel claim is also not preserved for appeal. “In 

order to preserve the issue of effective assistance of counsel for appellate review, the defendant 

should make a motion in the trial court for a new trial or for an evidentiary hearing.” People v 

Sabin, 242 Mich App 656, 658; 620 NW2d 19 (2000). Defendant filed three motions for remand 

that were denied. “Where claims of ineffective assistance of counsel have not been preserved, our 

review is limited to errors apparent on the record.” People v Matuszak, 263 Mich App 42, 48; 687 

NW2d 342 (2004).

Defendant argues through counsel and in his Standard 4 brief, that counsel was ineffective 

for:

1. Failing to obtain discovery materials.

2. Failing to file a motion to suppress evidence.

3. Failing to object to the prosecutor’s misrepresentations of the evidence.

4. Failing to consult with a cell phone expert.

5. Failing to challenge cell phone expert testimony.

6. Failing to investigate witness Delton Warren.

7. Failing to call exculpatory witnesses Jacob Johnson and Nichole Garvie.

8. Failing to file a motion to quash bind-over.

9. Failing to view the vising room video from Moggo’s visit with defendant.

10. Failing to object to the scoring of OV 12.

To establish ineffective assistance of counsel, the defendant must show that (1) defense counsel’s 

performance was so deficient that it fell below an objective standard of reasonableness and (2) 
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there is a reasonable probability that but for counsel’s unprofessional errors, the result of the 

proceedings would have been different. Strickland v Washington, 466 US 668, 694; 104 S Ct 

2052; 80 L Ed 2d 674 (1984).

A. DISCOVERY MATERIALS

In his Standard 4 Brief, defendant argues that trial counsel was ineffective for failing to 

obtain discovery of the Google account data. He relies on a final pretrial conference record 

wherein defense counsel listed the items that were requested, but still not received. At that hearing, 

the court denied defense counsel’s request for an adjournment and stated that the court would deal 

with the issue at trial. The issue was not raised again. Defendant assumes that trial counsel never 

received the Google discovery. However, a review of the trial record reveals that defense counsel 

effectively interrogated Deputy Leasher regarding the Google search. Further, defendant failed to

point to any one instance where trial counsel was unprepared to cross examine the witness 

regarding this evidence.

B. MOTION TO SUPPRESS EVIDENCE

Defendant next argues that counsel was ineffective for not bringing a motion to suppress 

the evidence obtained from the warrant. He reiterates his failed argument that the search of 

defendant’s Google Cloud account was “warrantless” because the warrant did encompass a search 

of defendant’s Google Cloud data. His other two bases upon which he asserts that counsel should 

have brought a motion to suppress are equally meritless. Those arguments are that,

1) Deputy Leasher’s statement in his affidavit, that the defendant told his girlfriend 

to delete his Google mail account (especially the map’s application) was false, and 

2) the facts contained in “item g” of Deputy Leasher’s affidavit were obtained during a 

search that required a warrant.

We reject both arguments.

Defendant’s claim that Deputy Leasher’s statements in the affidavit regarding Moggo 

being directed to delete material from the cell phone is unavailing. Moggo testified that defendant 

told her to delete the maps application. Defendant’s second argument, that the initial search of the 

phone required a warrant, is also without merit because once defendant gave Moggo access to his 

information by providing her with the username and password, he no longer had an expectation of 

privacy to that account. Thus, Deputy Leasher did not need a warrant at the time Moggo accessed 

defendant’s Google account from her phone, with a password she had created. 

Therefore, counsel’s failure to file a motion to suppress the evidence obtained from the 

warrant was not ineffective assistance of counsel. “[D]efense counsel is not ineffective for failing 

to pursue a futile motion.” People v Brown, 279 Mich App 116, 142; 755 NW2d 664 (2008).

C. PROSECUTOR MISCHARACTERIZATIONS

Defendant next asserts that trial counsel was ineffective for failing to object to the 

prosecutor’s alleged mischaracterizations concerning the difference between the cell phone and 
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Google cloud data. Contrary to defendant’s assertion, there are multiple examples on the record 

where trial counsel had the witness clarify any confusion regarding this evidence during crossexamination. Additionally, as discussed above, the prosecutor’s manner in which he phrased his 

questions to Deputy Leasher did not amount to prosecutorial misconduct. Accordingly, trial 

counsel’s lack of objection to the prosecutor’s alleged mischaracterizations did not amount to 

ineffective assistance of counsel. “A defendant is not denied the effective assistance of counsel 

by counsel’s failure to make a futile or meritless objection.” People v Johnson, 315 Mich App 

163, 175; 889 NW2d 513 (2016).

D. CONSULT WITH CELL PHONE EXPERT

Defendant additionally claims that counsel was ineffective for failing to call or consult with 

a forensic cell phone expert to testify about the inherent unreliability of the Google Cloud evidence 

due to the many variables involved. A review of the record shows that trial counsel did in fact 

elicit the very information defendant is arguing would have been provided by a forensic cell phone 

expert during her cross examination of Deputy Leasher. Consequently, a consult was not 

necessary and trial counsel was not ineffective for failing to consult or call an expert in cell phone 

forensics. 

E. CHALLENGE CELL PHONE EXPERT TESTIMONY

In his attorney’s supplemental brief, defendant argues that counsel was ineffective for 

failing to challenge the testimony of Deputy Leasher by failing to move in limine to exclude his 

testimony, to move for a Daubert2hearing, or for a mistrial or curative instruction. Defendant’s 

arguments all flow from the primary assertion that Deputy Leasher offered expert testimony 

without first having been qualified as an expert under MRE 702.

The admission of expert witness testimony is governed by MRE 702, which provides:

If the court determines that scientific, technical, or other specialized knowledge will 

assist the trier of fact to understand the evidence or to determine a fact in issue, a 

witness qualified as an expert by knowledge, skill, experience, training, or 

education may testify thereto in the form of an opinion or otherwise if (1) the 

testimony is based on sufficient facts or data, (2) the testimony is the product of 

reliable principles and methods, and (3) the witness has applied the principles and 

methods reliably to the facts of the case.

We agree with defendant that Deputy Leasher was an expert witness and the prosecutor should 

have moved for his qualification before he began testifying. He provided technical testimony that 

was necessary for the jury to understand the evidence. Trial counsel’s failure to object to Deputy 

Leasher’s qualification further constituted deficient performance. Trial counsel’s strategy 

appeared to be focused on challenging the basis for Deputy Leasher’s testimony, i.e. the 

authentication of the Google records, instead of his qualifications. However, the failure to object 

to Deputy Leasher’s qualification was not outcome determinative because an objection by counsel 

 

2 Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579, 589; 113 S Ct 2786; 125 L Ed 2d 

469 (1993).
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would have just led to his qualification. Deputy Leasher testified that he had been employed in 

law enforcement for the past 24 years. He had two years of computer forensics training and two 

years of work experience in the forensic examination of computers and phones. 

Defendant also suggests that trial counsel should have filed motions in limine to suppress 

testimony from the Google account based on the failure to obtain a search warrant, and to exclude 

any location data testimony attributable to defendant or his phone. However, such motions would 

not have been successful. The phone was properly searched pursuant to a search warrant as 

discussed above, and the testimony could have been made admissible by authentication from 

proper witness testimony or certification of records. Thus, a motion in limine would not have 

excluded the evidence. 

Defendant also argues that trial counsel failed to effectively challenge misleading 

testimony. He contends that Deputy Leasher was allowed to interchange “Google records” and 

“cell phone records” when referring to the Google maps locations. Defendant claims Deputy 

Leasher was further allowed to mislead the jury into believing that the Google account was 

tracking defendant’s cell phone. These contentions are belied by the record. Deputy Leasher was 

very clear that that the location data came from the Google account. Defense counsel further 

flushed out this fact through repeated objections and cross-examination. Deputy Leasher admitted 

that he could not tell whether defendant was the person logged into his Google account or had 

possession of the phone at the times in question. The court also clarified, “you’re tracking his 

phone, right? . . . You don’t know at that time who had it,” to which Deputy Leasher responded, 

“Correct.” This same testimony also defeats defendant’s additional argument that he was 

prejudiced by the admission of Deputy Leasher’s testimony in that the jury was misled to believe 

that the location data came from defendant’s phone and that law enforcement was able to track 

defendant’s movements from his phone.

Trial counsel’s failure to challenge Deputy Leasher’s testimony did not prejudice defendant 

where, even absent the location data, there was overwhelming evidence to support the counts for 

which defendant was convicted. Warren testified to defendant’s admission that the car he drove 

into a ditch on December 23 was stolen. Additionally, there was physical evidence of the video, 

mask, backpack, and bike. Further, when the police responded to the MPC break-in, they found 

defendant’s brother’s bike leaning on a fence outside.

F. WITNESS DELTON WARREN

Defendant next asserts that trial counsel should have reviewed the interrogation video of 

witness Delton Warren or investigated him in order to impeach him with his prior crimes of 

dishonesty. According to defendant, had trial counsel watched the video of Warren’s 

interrogation, she would have been able to elicit his statements to detectives that he never saw the 

car that hit a deer. However, Warren stated during his testimony at trial that he “never saw a car” 

on the night he picked defendant up. Furthermore, assuming that the decision not to impeach 

Warren was the result of counsel’s failure to investigate and not a strategic decision, defendant 

fails to show how trial counsel’s failure to obtain a criminal background check on Warren was an 

outcome-determinative error. The defendant must show that, but for counsel’s error, there is a 

reasonable likelihood that the result would have been different. People v Shively, 230 Mich App 
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626, 628; 584 NW2d 740 (1998). Moreover, Warren’s testimony regarding the admission of guilt 

was but a small portion of the evidence against the defendant.

G. EXCULPATORY WITNESSES

Defendant argues that trial counsel was also ineffective for failing to call exculpatory 

witnesses, Nichole Garvie and Jacob Johnson. “In general, the failure to call a witness can 

constitute ineffective assistance of counsel only when it deprives the defendant of a substantial 

defense.” People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009) (citation and quotation 

marks omitted). “A substantial defense is one that might have made a difference in the outcome 

of the trial.” People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990). In Garvie’s affidavit, 

she stated that if she had been contacted and called by trial counsel she would have testified that 

sometime in early December 2016, defendant borrowed and damaged her car when he hit a deer. 

The offenses for which defendant were convicted of occurred on December 22-23, 2016. Thus 

had counsel called her to testify, her testimony still would not have accounted for the defendant’s 

whereabouts when the crimes were committed.

In his amended Standard 4 Brief, defendant faults counsel for not calling his brother, 

Johnson, as an exculpatory witness. Defendant claims Johnson would have testified, “that he used 

two of the Defendant’s phones during the month of December” and that this testimony would have 

permitted the jury to consider that defendant’s phone and Google Cloud account were not used 

exclusively by defendant. Defendant fails to establish the factual predicate for this claim of 

ineffective assistance of counsel claim where he did not provide an affidavit from Johnson. People 

v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

H. SCORING OF OFFENSE VARIABLE 12

Defendant argues in his attorney’s supplemental brief that counsel was ineffective for 

failing to object to the scoring of 10 points for offense variable (OV) 12. OV 12 is scored for 

contemporaneous felonious criminal acts. MCL 777.42(1). The contemporaneous felonious acts 

must be separate acts from that constituting the sentencing offense. People v Light, 290 Mich App 

717, 723; 803 NW2d 720 (2010). Ten points are assessed when “[t]wo contemporaneous felonious 

criminal acts involving crimes against a person were committed” or “[t]hree or more 

contemporaneous felonious criminal acts involving other crimes were committed.” MCL 

777.42(1)(b) and (c). Defendant’s one acquitted count of larceny of a firearm could not 

substantiate the scoring of 10 points under the statute. Defendant admits that the acquitted felony 

could be considered under OV 12 to assess five points for the contemporaneous commission of 

one felonious criminal act involving a crime against a person under MCL 777.42(1)(d), however 

he argues that this score was not supported by a preponderance of the evidence nor a ruling by the 

court. Plaintiff concedes that OV 12 was scored at 10 points in error. 

“If a minimum sentence is within the appropriate guidelines sentence range, the court of 

appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring 

the sentencing guidelines or inaccurate information relied upon in determining the defendant’s 

sentence.” People v Francisco, 474 Mich 82, 88; 711 NW2d 44 (2006) (citation omitted). The 

court made no findings of fact regarding OV 12 because it was not objected to or raised by either 

party at sentencing. Defendant’s total OV score was 35, his OV Level was IV, and his sentencing 
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guideline range 34 to 134 months. A reduction of 10 OV points from 35 would change his OV

points to 25, his OV Level from IV to III and his sentencing guideline range from 34 to 134 months 

to 29 to 114 months. Accordingly, defendant is entitled to resentencing because of the scoring 

error. 

We also conclude that trial counsel’s failure to object to the scoring constituted deficient 

performance. A reasonably competent attorney should have discovered that there was an 

insufficient amount of contemporaneous felonious criminal acts to support assessing 10 points. 

Because we have remanded this case for re-sentencing based upon OV 12, we decline to reach the 

issue of whether counsel’s deficient performance was outcome determinative. 

I. MOTION TO QUASH BIND OVER

A defendant must be bound over for trial if, at the conclusion of the preliminary 

examination, probable cause exists to believe that the defendant committed the crime. People v 

Orzame, 224 Mich App 551, 558; 570 NW2d 118 (1997). Defendant asserts that trial counsel 

should have filed a motion to quash the bind-over because the testifying officer established his 

identity as the perpetrator at the preliminary examination solely by relying on his Google account 

data that was insufficient to establish identity. However, even without the officer’s testimony, 

there was other evidence presented by the prosecution to help establish identity. Specifically, there 

was physical evidence of the video, mask, backpack, and bike. Accordingly, trial counsel was not 

ineffective for failing to file a futile motion. It is well established that trial counsel is not required 

to make a futile motion. People v Fike, 228 Mich App 178, 182-183; 577 NW2d 903 (1998).

J. VISITING ROOM VIDEO

Lastly, defendant asserts that trial counsel was ineffective for failing to view the video 

recording of Moggo’s visit in the jail visiting room. Defendant contends that had she viewed the 

video, she would have known that Moggo’s testimony regarding him asking her to delete the maps 

portion of his Google account during her visit was false. Because he failed to offer any proof that 

trial counsel did not view the video or give any substantive arguments as to how he was prejudiced 

by this “error”, this issue is abandoned. An issue may be deemed abandoned where a defendant 

fails to brief the merits of a claim of error. People v Harris, 261 Mich App 44, 50; 680 NW2d 17 

(2004).

VI. EVIDENTIARY ERROR

In his Standard 4 Brief, defendant raises multiple claims of evidentiary error. 

“The decision whether to admit evidence falls within a trial court’s discretion and will be 

reversed only when there is an abuse of that discretion.” People v Duncan, 494 Mich 713, 722; 

835 NW2d 399 (2013), citing People v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010). “The 

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

. .” People v Lane, 308 Mich App 38, 51; 862 NW2d 446 (2014).

Defendant first argues that the trial court abused its discretion by not offering any 

explanation on the record for overruling defendant’s objections to Deputy Leasher’s testimony 

concerning defendant’s Google and phone records. We disagree. A review of the record shows 
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that the trial court did establish its reasoning for overruling trial counsel’s objections at the onset 

of the objections, it just did not offer an explanation after every subsequent objection. 

Next, defendant argues that the Google records and the testimony from Deputy Leasher 

regarding the Google and phone records constituted inadmissible hearsay because the records had 

not been certified in accordance with MRE 902(11). We agree. MRE 902(11)(B) allows records 

“of regularly conducted business activity that would be admissible under rule 803(6)” to be 

authenticated “by a written declaration under oath by its custodian or other qualified person 

certifying that” the record meets the requirements of MRE 803(6). MRE 803(6) is “the business 

records exception to the hearsay rule[.]” People v Fackelman, 489 Mich 515, 536; 802 NW2d 552 

(2011). 

Generally, phone and Google records would be admissible under MRE 803(6). In this 

case, though, the prosecution sought to introduce testimony from Deputy Leasher regarding 

defendant’s Google account and phone records as well as the maps Deputy Leasher generated from 

defendant’s GPS history as Deputy Leasher’s own records. However, Deputy Leasher’s 

testimony, along with the maps he created, was based on information that came from defendant’s 

Google and Sprint phone accounts. As such, absent certification, they required testimony from 

the custodian of these records or another qualified witness that would show that the records met 

the exception under MRE 803 (6). The prosecution did not offer any such testimony. Therefore, 

the Google records and the testimony from Deputy Leasher regarding the Google and phone 

records was hearsay and it was plain error for the trial court to allow their admission.

Even though we conclude that the trial court erred in admitting the records and Deputy 

Leasher’s testimony, defendant has not shown that reversal is required. Evidentiary error does not 

merit reversal unless it involves a substantial right, and “after an examination of the entire cause, 

it shall affirmatively appear that it is more probable than not that the error was outcome 

determinative.” People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999) (citation and 

quotation marks omitted).

Here, there was other evidence presented that supported the inference that defendant was 

the perpetrator. Testimony was presented from defendant’s girlfriend that he had told her to delete 

his Google account and from his friend Warren that Warren had picked defendant up and defendant 

told him he had stolen a car and drove it into a ditch trying to avoid hitting a deer. Additionally, 

Detective Dush testified that defendant told him he had hit a deer with a car and that the car went 

into a ditch. There was also testimony from Deputy Leasher that the police retrieved a backpack 

from defendant’s room at his brother’s house and a ski mask from defendant’s girlfriend’s house 

that were both seen being worn by the individual on the video from TL Contracting. This evidence, 

without reference to any Google or phone records, supports the inference that defendant was the 

perpetrator of the crimes. “An erroneous admission of hearsay evidence can be rendered harmless 

error where corroborated by other competent testimony.” People v Hill, 257 Mich App 126, 140; 

667 NW2d 78 (2003). Accordingly, we conclude that the erroneous admission of the records and 

Deputy Leasher’s testimony regarding the records did not affect defendant’s substantial rights. 

VII. SENTENCING
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Defendant argues that the trial court erred by assessing 10 instead of zero points for OV 

19, MCL 777.49(c), because defendant did not interfere with the administration of justice. We 

disagree. 

A claim that the sentencing guidelines range was improperly calculated is preserved by 

raising the issue “at sentencing, in a motion for resentencing, or in a motion to remand.” People v 

Kimble, 470 Mich 305, 311; 684 NW2d 669 (2004). Here, defendant preserved this issue by 

raising the issue at sentencing. We review de novo the trial court’s interpretation and application 

of the statutory sentencing guidelines. People v Jackson, 487 Mich 783, 789; 790 NW2d 340 

(2010). On appeal, “the circuit court’s factual determinations are reviewed for clear error and must 

be supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835 

NW2d 340 (2013).

OV 19 relates to conduct that constitutes interference with the administration of justice3. 

Interference with the administration of justice includes, but is not limited to, acts that constitute 

“obstruction of justice.” People v Ericksen, 288 Mich App 192, 204; 793 NW2d 120 (2010). Here, 

the trial court scored OV 19 at 10 points for interference with the administration of justice because 

the defendant asked a corrections officer to give him his phone back after which he performed a 

factory reset on it and because he asked his girlfriend to delete his Google account, specifically as 

it related to the maps’ history. Defendant’s attempt to hide his phone’s data in conjunction with 

his instruction to his girlfriend to delete his Google account were attempts to interfere with the 

investigation by concealing evidence. Thus, the trial court did not err when it assessed 10 points 

for OV 19 during sentencing. This Court has previously found that attempts to hide evidence can 

support an assessment of 10 points OV-19. Id at 203-204.

Defendant also argues that the court abused its discretion when it imposed an upward 

departure sentence because the sentence was disproportionate and unreasonable. Because we are 

remanding for re-sentencing we decline to address this issue.

VIII. OTHER STANDARD 4 BRIEF ISSUES

“This Court reviews the grant or denial of an adjournment for an abuse of discretion.” 

People v Snider, 239 Mich App 393, 421; 608 NW2d 502 (2000). “An abuse of discretion occurs 

when the court chooses an outcome that falls outside the range of reasonable and principled 

outcomes.” People v Mahone, 294 Mich App 208, 212; 816 NW2d 436 (2011).

Defendant asserts that further testing should have been done on all of the DNA samples 

taken and the trial adjourned until all results had been received from the state lab. Defendant 

contends that this evidence could have been exculpatory and exonerated him. We disagree.

 

3 The statue provides that an assessment of ten points is appropriate where “[t]he offender 

otherwise interfered with or attempted to interfere with the administration of justice.” MCL 

777.49(c)
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“An adjournment may be granted on the ground of unavailability of a witness or evidence 

only if the court finds that the evidence is material and that diligent efforts have been made to 

produce the witness or evidence.” MCR 2.503(C)(2). 

Absent a showing of suppression of evidence, intentional misconduct, or bad faith, 

the prosecutor and the police are not required to test evidence to accord a defendant 

due process. Nor does due process require that the prosecution seek and find 

exculpatory evidence. Although the prosecution bears the burden of proving guilt 

beyond a reasonable doubt in a criminal trial, it need not negate every theory 

consistent with defendant's innocence, nor exhaust all scientific means at its 

disposal. [People v Coy, 258 Mich App 1, 18; 669 NW2d 831 (2003)].

Here, defendant argues that nine swabs of DNA were collected from the three vehicles 

parked in the TL Contracting parking lot. Results from testing were provided for two of these nine 

samples and one of these samples indicated that there was DNA present from multiple contributors. 

Thus, defendant argues that all of the DNA evidence collected should have been tested, especially 

the DNA evidence from the stolen car, because further testing could have provided direct physical 

evidence that exonerated him. However, defendant’s theory that the DNA evidence from the stolen 

car could have been exculpatory is highly speculative. Further, the defendant cites no authority 

that would have required the prosecution to complete DNA testing of all nine samples. See, e.g., 

People v Vaughn, 200 Mich App 611, 619; 505 NW2d 41 (1993), rev’d on other grounds 447 Mich 

217 (1994), where this Court noted a clear distinction between the failure to disclose evidence and 

the failure to develop evidence. Additionally, defendant has failed to demonstrate that he was 

unfairly prejudiced by the court’s denial of an adjournment to wait for the completion of further 

DNA testing. Under the circumstances, we cannot conclude that the trial court abused its 

discretion by denying the motion to adjourn.

Defendant finally argues that the cumulative effect of the errors requires that we reverse 

his convictions or remand for a Ginther4hearing. However, because he fails to cite any of the 

errors he feels warrant reversal this argument should be rejected. “It is not enough for an appellant 

in his brief simply to announce a position or assert an error and then leave it up to this Court to 

discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, 

and then search for authority either to sustain or reject his position. The appellant himself must 

first adequately prime the pump; only then does the appellate well begin to flow.” Mudge v 

Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998) (citation omitted).

We affirm defendant’s convictions, but remand for resentencing in light of the error in 

scoring OV 12. We do not retain jurisdiction.

/s/ Christopher M. Murray

/s/ Cynthia Diane Stephens

/s/ Douglas B. Shapiro

 

4 People v Ginther, 390 Mich 436, 440; 212 NW2d 922 (1973).