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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 19, 2017

v No. 326442 Wayne Circuit Court OLAJUWON ONIK CARTER, LC No. 14-007691-02-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 326467 Wayne Circuit Court IRELL DWAYNE FRIDAY, LC No. 14-007691-01-FC

Defendant-Appellant.

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

P ER C URIAM

. Defendants, Olajuwon Onik Car ter and Irell Dwayne Friday, were tried jointly before one jury. The jury convicted Carter and Friday of carjacking, MCL 750.529a, armed robbery, MCL 750.529, first-degree home invasion, MCL 750.110a(2), and posse ssion of a firearm during the commission of a felony (“fel ony-firearm”), MCL 750.227b. The t rial court sentenced Carter to 20 to 30 years in prison for the carjacking and armed robbery c onvictions, and 12 to 20 years in prison for the home invasion conviction, to be served concurren tly, but consecutiv e to a two-year term of imprisonment for the felony-firearm conviction. The tr ial court sentenced Friday to 18 to 30 years in prison for the carjacking and armed robbery convict ions, and 12 to 20 years in prison for the home invasion conviction, those sent ences to also be se rved concurrently, but consecutive to a two-year term of imprisonment for the felony-firearm convi ction. Carter appeals as of right in Docket No. 326442, and Friday appeals as of right in Docket No. 326467. We affirm defendants’ convictions, but remand to vacate in part the Octob er 16, 2015 order denying Carter’s motion for a new trial and resentencing in Docket No. 326442, and remand for further proceedings consistent with this opinion in Docket No. 326467.-2- I. FACTUAL BACKGROUND

Defendants’ convictions arise from an August 14, 2014 attemptedcarjacking, armed robbery, and home invasion at the home of Danny and Olie Kautha r in Detroit, Michigan. That afternoon, Danny entered his 2013 Ford Flex in order to go to t he store. Before Danny could back out of the driveway, a whit e or cream-colored car pulled i n behind the Flex, blocking Danny from leaving. A man, whom Danny later identified as defe ndant Friday, approached the driver’s side of the Flex carrying a gun. Another man, who was also carrying a gun, approached the passenger’s side of the veh icle. He pointed the gun at the Flex and made an “up and down motion,” as if he was indicating that Danny should get out. Da nny exited the car, and Friday instructed Danny to hand over his keys. Danny ultimately coope rated, and Friday removed $340 from Danny’s pocket after taking the keys. Friday then entered the car and attempted to start the vehicle, even though the car was a lready started. After fumbli ng with the controller, Friday exited the vehicle and moved toward the house, demanding to kno w which of Danny’s keys opened the side door. Friday then broke a window with the hand le of his gun in order to enter the house, where Olie and the coup le’s great-grandsons were loc ated. Olie testified that Friday entered the house, pointed a gun a t her, and instructed her to lie on the ground.

Meanwhile, Danny was still standing at the car when an unidenti fied perpetrator pointed a gun at his back and ordered him into the house. Ignoring thi s command, Danny ran toward the third perpetrator, who was standing near the driver’s side door of the perpetrators’ car, pointing a gun at Danny. At trial, Danny identified the third perpetrator as defendant Carter. As he ran, Danny yelled for help, intending to attract the attention of hi s neighbors across the street, who were talking on their porch. Friday exited the home, and the t hree men entered their car and drove away.

Soon after arriving at the scene , the police discovered Frida y’s cell phone in the Kauthars’ yard. Danny watched a s a police officer looked throu gh the pictures on the phone, and he spontaneously identified Carte r and Friday as the perpetrato rs in some of the pictures.

II. DOCKET NO. 326442 (DEFENDANT CARTER)

A. INEFFECTIVE ASSISTANCE (C ELL PHONE TOWER TRACKING)

Carter first argues that defense counsel was ineffective for f ailing to investigate and present evidence of cell phone tower tracking data for his phon e at the time of the crimes to support his alibi defense that he was at the apartment that he shared with his sister, Shaylon Friday, when the offenses occurred. We disagree.

1. STANDARD OF REVIEW AND APPLICABLE LAW

The trial court considered and rejected this claim after condu cting a Ginther 1 hearing. “A claim of ineffective assistance of counsel is a mixed question of law and fact. A trial court’s

1 People v Ginther , 390 Mich 436, 442-443; 212 NW2d 922 (1973).-3- findings of fact, if any, are revi ewed for clear error, and thi s Court reviews the ultimate constitutional issue arising from an ineffective assistance of counsel claim de novo.” People v Petri , 279 Mich App 407, 410; 760 NW2d 882 (2008), citing People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002). See also People v Dendel , 481 Mich 114, 124, 130; 748 NW2d 859 (2008), amended 481 Mich 1201 (2008). We must give deference t o the trial court’s factual findings, especially when they a re related to its credibility d eterminations. MCR 2.613(C); Dendel , 481 Mich at 130; People v Galloway , 259 Mich App 634, 638; 675 NW2d 883 (2003).

Effective assistance of counsel is presumed, and defendant bear s a heavy burden of proving otherwise. To demonstrate ineffective assistance, d efendant must show: (1) that his attorney’s performance fell below an objecti ve standard of reasonableness, and (2) that this performance so prejudiced him that he was deprived of a fair trial. To demonstrate prejudice, the defend ant must show the existence of a reasonable probability that, but for counsel’s e rror, the result of the proceeding would have been different. [ People v Gaines , 306 Mich App 289, 300; 856 NW2d 222 (2014) (quotation marks and citations omitted ).]

“A defendant must also show that the result that did occur was fundamentally unfair or unreliable.” People v Lockett , 295 Mich App 165, 187; 814 NW2d 295 (2012).

“This Court will neither substitute[] its judgment for that o f counsel regarding matters of trial strategy, nor make[] an a ssessment of counsel’s competenc e with the benefit of hindsight.” People v Dunigan , 299 Mich App 579, 587; 831 NW2d 243 (2013) (quotation marks a nd citation omitted; alterations in original). However, the trial strategy must be sound, and “a court cannot insulate the review of counsel’s performance by calling it tria l strategy.” People v Trakhtenberg
, 493 Mich 38, 52; 826 NW2d 136 (2012).

2. ANALYSIS

“A defendant is entitled to have his counsel prepare, investiga te, and present all substantial defenses,” meaning those “that might make a differe nce in the outcome of the trial.” In re Ayres, 239 Mich App 8, 22; 608 NW2d 132 (1999). Accordingly, defense counsel has a “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Trakhtenberg , 493 Mich at 52 (quotation marks and citation omitted). However, “[d]ecisions regarding what evidence to pre sent, whether to call witnesses, and how to question witnesses are presumed to be matters of tri al strategy . . . .” People v Horn
, 279 Mich App 31, 39; 755 NW2d 212 (2008).

Even if we assume, without deciding, that defense counsel was asked to investigate cell phone tower tracking records for Carter’s phone at the time of the offenses, and that counsel’s failure to investigate fell below an objective standard of reas onableness, Carter has failed to establish that he was prejudiced by counsel’s alleged deficienc y because he has not demonstrated a reasonable probability that the result of the proceeding woul d have been different had the cell phone records been pres ented at trial.

One of the victims, Danny Kauthar, identified Carter as the thi rd perpetrator, who was standing by the getaway car with a gun as Danny fled. In addit ion, Danny’s great-grandson, DR,-4- testified at trial that he saw both Friday and Carter at the cr ime scene. Carter attempts to undercut the identification test imony, noting that Danny miside ntified Friday at a lineup, emphasizing that DR provided inconsistent testimony regarding d efendants’ roles at the crime scene, and arguing that he was deemed guilty merely based on hi s association with Friday in pictures found on Friday’s cell phone. However, these potentia l issues related to the identification testimony were already presented and rejected bythe jury. Accordingly, we find it unlikely that the phone records w ould have affected the outcome

. Specifically, Carter pursued an alibi defense at trial, throug h which he claimed that he was at the apartment during the crimes. He relied on Shaylon t o testify to his w hereabouts, but her credibility was called into question. At trial, she testif ied that Carter was with her from 1:00 to 10:00 p.m. At the Ginther hearing, however, she claimed that she was in and out of the apartment during that afternoon because she “had left to go fin d [herself] something to wear.” In addition, at trial and at the Ginther hearing, Shaylon tes tified that, on August 14, she was caring for her son and Carter’s only child and had asked him to babysi t both children, but Carter’s mother testified that she cared f or Carter’s daughter “all day” on August 14.

Most importantly, the phone records do not make Shaylon’s test imony more believable. The parties’ experts both agree that, based on the data showing the use of the Joy Road tower, Carter’s phone could not have been at the crime scene when it w as used on August 14 at 3:47 p.m. and from 7:32 to 8:01 p.m. Although the phone never conne cted to a tower near the crime scene, it was unused from 1:01 to 2:01 p.m., from 4:34 to 7:15 p.m., and from 8:01 to 9:59 p.m. 2 There is no evidence that establishes more probably than not th at the crimes occurred when the phone connected to the Joy Road tower as opposed to when the lo cation of the phone was unknown. The reporting officer testified that, based on Danny’ s statement to her, she wrote in her report that the crimes occurred at 8:00 p.m. But at the pr eliminary examination, Danny testified that the crimes occurred at 5:00 p.m. At trial, he thought the crimes occurred around 2:30 or 3:30 p.m. The neighbor w ho called 9-1-1 thought the cr imes occurred between 4:00 and 6:00 p.m. Police activity logs show that the police arrived be tween 8:15 and 8:30 p.m., but both Danny and the 9-1-1 caller testified that there was a delay between the 9-1-1 call and the police response. Even in light of the fact that the last activity on Friday’s phone, which was left at the scene, occurred at 7:45 p.m., the gaps in activity on Carter’s phone make it very plausible that the carjacking occurred while the cell phone could not be track ed, whether because it was at a separate location when the crime occurred or because Carter sim ply did not use his cell phone during the incident.

Even if the crimes occurred when the phone was connecting to th e Joy Road tower, the records do not prove that it was Carter, as opposed to someone else, using the phone. Although Carter’s family testified that he always had it in his possessi on, the phone was registered to Carter’s mother, and nothing prevented Carter or his mother fro m lending it to someone else during the time at which Car ter committed the crimes.

2 When Carter used the phone at 2:01, 2:08, and 3:47 p.m., he wa s in contact with Friday. A jury could infer that they were pla nning or rehashing the crimes at those times.-5- In sum, Carter cannot establish that the outcome of the trial would have been different but for defense counsel’s failure to investigate and present the ce ll phone tracking records. Carter was not denied the effective as sistance of counsel on this basi s.

B. IDENTIFICATIONS

Carter next argues that Danny’s and DR’s in-court identificati ons of him should not have been allowed at trial because Danny’s identification was tainte d by a previous photographic identification procedure that w as unduly suggestive, and DR’s i dentification of Carter was suggestive and unreliable because Carter was sitting in the cou rtroom at the defense table when DR first saw him. We disagree.

1. STANDARD OF REVIEW

Because Carter failed to object to the in-court identifications , to move to suppress the identification evidence, or to request a Wade 3 hearing, these claims are unpreserved, People v Metamora Water Serv, Inc , 276 Mich App 376, 382; 741 NW2d 61 (2007); People v Daniels
, 163 Mich App 703, 710-711; 415 NW2d 282 (1987); People v Davis , 146 Mich App 537, 547; 381 NW2d 759 (1985), and reviewed f or plain error affecting his substantial rights, People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999). To demonstrate p lain error, a defendant must show that (1) an e rror occurred, (2) the error w as clear or obvious, and (3) “the plain error affected [the defendant’s] substantial rights,” whi ch “generally requires a showing of prejudice, i.e., that the error affected the outcome of the low er court proceedings.” Id . at 763. Even if a defendant establishes a plain error that affected his substantial rights, “[r]eversal is warranted only when the plain, fo rfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, i ntegrity or public reputation of judicial proceedings independe nt of the defendant’s innocence.” Id . at 763-764 (quotation marks and citation omitted; second alteration in original).

2. DANNY

Carter argues that Danny’s in-court identification of him was tainted by Danny’s prior identification of him in pictures on Friday’s phone at the crim e scene. We disagree.

“An identification procedure th at is unnecessarily suggestive a nd conducive to irreparable misidentification constitutes a denial of due process.” People v Williams , 244 Mich App 533, 542; 624 NW2d 575 (2001). Likewise, “[a] photographic identifi cation procedure violates a defendant’s right to due process of law when it is so impermiss ibly suggestive that it gives rise to a substantial likelihood of misi dentification. . . . Moreover, when the witness is shown only one person or a group in which one person is singled out in some wa y, he is tempted to presume that he is the person.” People v Gray , 457 Mich 107, 111; 577 NW2d 92 (1998) (quotation marks and citations omitted). However, in contexts analogous to this case, a prompt on-the-scene identification is reasonable and permissible because it allows “ ‘the police to immediately decide

3 United States v Wade , 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).-6- whether there is a reasonable likelihood that the suspect is co nnected with the crime, and subject to arrest, or merely an unfortunate victim of circumstance.’ ” People v Libbett , 251 Mich App 353, 361; 650 NW2d 407 (2002), quoting People v Winters , 225 Mich App 718, 728; 571 NW2d 764 (1997). On-scene identification also allows victims to mak e identifications when their memories are fresh. Libbett , 251 Mich App at 362. See also Winters , 225 Mich App at 726-728.

To challenge an identification on due process grounds, a defend ant must establish “ ‘that the pretrial identification procedure was so suggestive in ligh t of the totality of the circumstances that it led to a substantial lik elihood of misidentification.’ ” Williams , 244 Mich App at 542, quoting People v Kurylczyk , 443 Mich 289, 302; 505 NW2d 528 (1993). “If the trial court finds the procedure was impermissibly suggestive, evidence concerning the identification is inadmissible at trial unless an independent basis for in-court identification can be established ‘that is untainted by the suggestive pretrial procedure.’ ” Williams , 244 Mich App at 542-543, quoting Kurylczyk , 443 Mich at 303.

We find Perry v New Hampshire , 565 US 228; 132 S Ct 716; 181 L Ed 2d 694 (2012), particularly instructive here. In that case, an eyewitness sawa man break into a car and called the police. Id . at 233. An officer responded and detained a man in the parki ng lot, who had been holding two car-stereo amplifiers in his hands. Id . A metal bat was on the ground behind him. Id . The responding officer left the man in the parking lot with another officer and went inside to interview the eyewitness. Id . at 234. When the responding o fficer asked the eyewitness for a more specific description of the perpetrator, the eyewitness po inted to her window and said the perpetrator was standing in the parking lot, next to the police officer. Id. at 234. That man was then arrested and convicted in state court. On appeal to the U nited States Supreme Court, he argued that the highly suggestiv e nature of the identification procedure entitled him to a suppression hearing prior to trial in order to determine the admissibility of the identification. Id. at 236. The Court rejected this argument, ruling that due proc ess only requires a hearing when law enforcement arranged the unnecessarily suggestive circumstances under which the identification was obtained. See id. at 242. Accordingly,

[w]hen no improper law enforcement activity is involved, . . . it suffices to test reliability through the rights and opportunities generally desi gned for that purpose, notably, the presence of counsel at postindictment lin eups, vigorous cross-examination, protective rules of evidence, and jury instr uctions on both the fallibility of eyewitness identification and the requirement th at guilt be proved beyond a reasonable doubt. [ Id . at 233.]

Stated differently, “[t]he fallibility of eyewitness evidence d oes not, without the taint of improper state conduct , warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthi ness,” id . at 245 (emphasis added), and “the Due Process Clause does not require a preliminary judi cial inquiry into the reliability of-7- an eyewitness identification whenthe identification was not pr ocured under unnecessarily suggestive circumstances arra nged by law enforcement.” Id . at 248. 4

Considering the totality of the circumstances, Danny’s on-scen e identifications of defendants on the recovered cell phone were not based on an imp ermissibly suggestive procedure leading to a substant ial likelihood of misidentificat ion. The police did not know what was on the phone when it was found and did not ask Danny to loo k at it to see if the perpetrators were pictured. Rather, the offi cer found the phone in the gras s, and Danny asked if they could look at pictures saved on the phone. As the officer perused th e pictures, Danny watched and spontaneously identified the th ree perpetrators. Although the facts of this case are distinguishable from the facts in Perry
, Hampton , and Metcalf
, 5 they share a common thread: the fact that the identifications were not planned or prearranged b y the police. See Perry
, 565 US at 233. Moreover, the identificati ons here ultimately provided animmediate lead for the police and allowed Danny to make the identifications while his memory was fresh. See Libbett , 251 Mich App at 362-363.

Because Danny’s on-scene identific ations of Carter on the recov ered cell phone did not involve an impermissibly suggestiv e procedure, orchestrated by the police, that led to a substantial likelihood of misiden tification, there was no plain error in allowing Danny’s subsequent in-cour t identification. See Carines , 460 Mich at 763-764.

3. DR

Carter argues that DR’s in-court identification of him was und uly suggestive because it amounted to a one-man showup. We disagree.

Although an identification at a p rior court proceeding may be s o suggestive as to require suppression of identification testimony under the circumstances , see People v Solomon, 47 Mich App 208, 216-221; 209 NW2d 257 (1973) (L ESINSKI , C.J., dissenting), rev’d for the reasons stated in dissent 391 Mich 767 (1974), it does not follow that all in-court identifications are

4 Similarly, in People v Hampton , 52 Mich App 71, 76-77; 216 NW 2d 441 (1974), rev’d on other grounds 394 Mich 437 (1975), two witnesses were standing with t he prosecutor when the defendant walked toward the courtroom. “One witness spontaneou sly identified [the] defendant to the prosecutor.” Id . at 77. “The other witness di d not identify [the] defendant a t that time, nor was she able subsequently to iden tify [the] defendant in court. ” Id . This Court ruled that the identification “was mere happens tance,” as opposed to a “police -induced, arranged confrontation[],” and, therefore, did not fall “within Wade ’s ambit.” Id . Likewise, in People v Metcalf , 65 Mich App 37, 50; 236 NW2d 573 (1975), this Court again fou nd that happenstance confrontations do not amount to due process violations. The wi tness in Metcalf happened to observe and spontaneously identify the defendant when the witne ss was at the district court to sign the complaint. Id . at 41. This Court held that th e trial court properly denied a motion to quash the in-court identificati on on the basis of the earlier o bservation. Id. at 50.

5 See footnote 4.-8- impermissibly suggestive, see People v Manuel Johnson, 58 Mich App 347, 353; 227 NW2d 337 (1975). Notably, “[s]imply because an identification procedure is suggestive does not mean it is necessarily constituti onally defective.” People v Colon , 233 Mich App 295, 304; 591 NW2d 692 (1998). This Court has rejected the position that an in-court identification is, on its own, “inherently suggestive since the witness knows that the defendant is the person charged with the offense and is the person the witness is asked to identify.” People v Michael Fuqua , 146 Mich App 133, 143; 379 NW2d 396 (1985), overru led in part on other g rounds by People v Heflin, 434 Mich 482, 498; 456 NW2d 10 (1990). “There is no per se rule th at, when the initial confrontation occurs at trial, s uch situation is inherently sug gestive.” Id . Rather, there must be other factors that contribute to the possibility of misidentifi cation. Id . 143-144. See also, e.g., Colon , 233 Mich App at 305. Here, defendant has not identified any additional factors that would render the in-court i dentification undul y suggestive.

Moreover, in order to impeach DR’s identification at trial, def ense counsel raised the fact that DR did not identify Carter previously and later confused d efendants’ roles. On this record, Carter cannot establish a plain error affecting his substantial rights related to DR’s in-court identification. See Carines , 460 Mich at 763-764.

C. INEFFECTIVE ASSISTANCE OF COUNSEL

Carter also argues that defense counsel was ineffective for fa iling to request a Wade hearing, failing to file a motion to suppress Danny’s and DR’s in-court identifications, and otherwise failing to object to the admission of their identific ations. As previously explained, Carter has not established a plain error regarding these identi fications. Accordingly, any objection or motion to suppress on this basis would have been f utile. Defense counsel is not ineffective for failing to make a futile motion. People v Thomas , 260 Mich App 450, 457; 678 NW2d 631 (2004).

D. OFFENSE VARIABLE (“OV”) 8

Carter argues that he is entitled to resentencing because the trial court improperly assessed 15 points for OV 8. He notes that the trial court agr eed at a post-sentencing hearing that zero points should have been assessed for OV 8. We conclude th at OV 8 was properly scored at 15 points and, therefore, rese ntencing is not required.

1. STANDARD OF REVIEW

In People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013), the Michigan Supreme Court clarified both the quantum of evidence necessary to suppo rt a scoring decision and the standard of review to be used by t his Court in reviewing senten cing guideline challenges:

Under the sentencing guidelines, the circuit court’s factual de terminations are reviewed for clear error and must be supported by a preponderan ce of the evidence. Whether the facts, a s found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpret ation, which an appellate court reviews de novo.

2. ANALYSIS-9- MCL 777.38(1)(a) provides that 15 points should be scored for OV 8 when “[a] victim was asported to another place of greater danger or to a situati on of greater danger or was held captive beyond the time necessary to commit the offense.” In People v Spanke , 254 Mich App 642, 647; 658 NW2d 504 (2003), this Cour t addressed asportation , stating:

The term “asportation” is not def ined in the sentencing guidel ines statute. However, in order to establish asportation as an element of the crime of kidnapping, MCL 750.349, there must be some movement of the vic tim taken in furtherance of the kidnapping th at is not merely incidental to the commission of another underlying lesser or co equal crime. While asportation is an element of forcible kidnapping, there is no requirement that the movement itself be forcible. Rather, the only requirement for establishing asportation is th at the movement not be incidental to committing an underlying offense. [Citations omitted.]

Here, the sentencing offense wa s carjacking. After the three perpetrators arrived, the unidentified perpetrator on the passenger’s side with a gun sig naled for Danny to exit his car. Danny’s exit was no doubt to a pl ace of greater danger, outside the protection of his vehicle and closer to the armed perpetrators. But that movement does not a mount to asportation under MCL 777.38 because it was incidental to the commission of the carja cking. Accordingly, because the record demonstrates that Danny was not forced to move to anothe r place before he escaped, there is no evidence of asportation unr elated to the carjacking.

Importantly, however, MCL 777.38 also allows for a score of 15 points if a victim was held captive beyond the time necessary to commit the offense. MCL 750.529a provides, in relevant part:

(1) A person who in the course of committing a larceny of a mo tor vehicle uses force or violence or the threat of force or violence, or w ho puts in fear any operator, passenger, or person in lawful possession of the moto r vehicle, or any person lawfully attempting to recover the motor vehicle, is gui lty of carjacking, a felony punishable by imprisonment for life or for any term of y ears.
(2) As used in this section, “in the course of committing a la rceny of a motor vehicle” includes acts that occur in an attempt to commit the larceny, or during commission of the larceny, or in flight or attempted fli ght after the commission of the larceny, or in an attempt to retain possessio n of the motor vehicle.

In this case, (1) the perpetrator s used the threat of force to induce Danny to exit the vehicle, (2) Friday demanded the keys, and (3) Friday then ente red the vehicle and unsuccessfully tried to start it. From this evidence, a jury c ould infer that the perpetrators were attempting to commit a larceny of a motor vehicle. See id . Therefore, at that point, the underlying offense of carjacking was complete. But the perpetr ators nevertheless continued to hold Danny captive. Friday pointed a gun at Danny and demanded to know which key opened the side door to his house. Wh ile Friday entered the house, th e unidentified pe rpetrator stood behind Danny, pointed a gun to his back, and told him to go up the stairs and follow Friday into the house. It was only then that Danny escaped. Therefore, be cause Danny was held captive-10- beyond the time necessary to commit the carjacking, the trial c ourt did not err i n assessing 15 points for OV 8. See MCL 777.38(1)(a).

Carter argued at the motion fo r resentencing, and he maintains on appeal, that Danny could not have been held longer than the time necessary to comm it the carjacking because the offense was never completed. He claimed that MCL 777.38 does n ot contemplate mere attempts. But again, the offense of carjacking is complete whe n a defendant attempts to commit a larceny of a motor vehicle. T hus, the trial court erred whenit agreed at the post-conviction motion hearing that it should not ha ve assessed 15 points for O V 8.

Accordingly, we vacate the por tion of the October 16, 2015 orde r providing that “OV 8 is scored at 0 points.” Absent any error in the scoring of OV 8, resentencing is not required.

E. RESTITUTION

Lastly, Carter argues that the trial court’s order requiring h im to pay Danny $300 in restitution violates his Sixth Ame ndment right to a jury trial because he did not admit, nor did the jury determine, the amount of res titution that was owed. We di sagree.

1. STANDARD OF REVIEW

Because Carter did not raise this Sixth Amendment issue at sent encing, the issue is unpreserved, and review is limited to plain error affecting his substantial rights. People v Lockridge , 498 Mich 358, 392-393; 870 NW2d 502 (2015).

2. ANALYSIS

As defendant recognizes, this C ourt rejected this same argumen t in People v Corbin , 312 Mich App 352, 371-373; 880 NW2d 2 (2015). In that case, this C ourt held that judicial factfinding to determine the appropria te amount of restitution does not implicate a defendant’s Sixth Amendment right to a jury trial. Id . at 372-373. We are bound by that decision. MCR 7.215(J)(1). And, consistent with t his Court’s explanation in Corbin , Carter’s reliance on Southern Union Co v United States , ___ US ___; 132 S Ct 2344; 183 L Ed 2d 318 (2012), is misplaced. In that case, the United States Supreme Court held that the determination of any fact, except the existence of a prior c onviction, which increases a d efendant’s maximum potential sentence, including a sentence consisting of a criminal fine, m ust be determined by a jury. Southern Union , 567 US at ___; 132 S Ct at 2348-2349, 2357. As this Court ob served in Corbin
, “[a] criminal fine and restitu tion are not synonymous . . . .” Corbin , 312 Mich App at 372. Accordingly, Carter’ s argument fails.

III. DOCKET NO. 326467 (DEFENDANT FRIDAY)

A. IDENTIFICATIONS

Like Carter, Friday argues that Danny’s identification of him in the pictures on Friday’s phone at the crime scene violated his due process rights and th at the in-court identifications at trial were unduly suggestive. We again disagree.-11- 1. STANDARD OF REVIEW

Friday’s failure to object to the identifications leaves this i ssue unpreserved, Metamora Water Serv, Inc , 276 Mich App at 382; Daniels , 163 Mich App at 710-711; Davis , 146 Mich App at 547, and limits our review to plain error affecting Frid ay’s substantial rights, Carines
, 460 Mich at 763-764.

2. ANALYSIS

For the reasons previously disc ussed, Danny’s on-scene identifi cations of defendants in the pictures on the phone did not result from an impermissibly suggestive procedure arranged by the police. Likewise, for the same reasons previously discusse d with regard to Carter, there is no indication here under the totality of the circumstances that th e in-court identifications of Friday were unduly suggestive.

Additionally, to the extent that Friday also contends that an i ndependent basis was required for Olie’s and DR’s iden tifications of him at trial ap parently based on their pretrial identifications of him, it is noteworthy that an independent ba sis must be established only after a defendant shows that a pretrial procedure was impermissibly sug gestive, Williams , 244 Mich App at 542-543, and Friday raises no claim regarding the proced ures associated with Olie’s and DR’s pretrial identifications. Instead, he emphasizes their co nflicting statements regarding defendants’ identities. These cla ims regarding the witnesses’ conflicting statements and testimony do not establish that th eir in-court ide ntifications of him were unduly suggestive or improper. Rather, these inconsistencies were a matter of credi bility for the jury to determine. People v Davis , 241 Mich App 697, 700; 617 NW2d 381 (2000) (“The credibility of identification testimony is a que stion for the trier of fact th at we do not resolve anew.”). See also Kansas v Ventris , 556 US 586, 594; 129 S Ct 1841, 1847; 173 L Ed 2d 801 (2009) (“Our legal system, however, is built on the premise that it is the provinc e of the jury to weigh the credibility of competing witnesses . . . .”). 6

6 Friday also briefly suggests th at the in-court identifications were improper because “[c]learly the complainants discussed identification” in light of Danny’s brief statement at the preliminary examination that Olie and DR were inside the house during the i ncident and would “be able to better tell” which perpetrator went inside. Contrary to defend ant’s characterization of Danny’s statement, it does not indicate that the witnesses discussed th eir testimony. However, even if it did, witnesses are not precluded from discussing their testimony in the absence of a sequestration order, and, in fact, witnesses are not automatically precluded from discussing the case following the entry of a sequestration order. See People v Davis , 133 Mich App 707, 714; 350 NW2d 796 (1984) (“Where the trial court is not requested to caution the sequestered witnesses not to discuss the evidence, the sequestration order is not violated by such d iscussion, and therefore the court does not abuse its discretion in permitting the witnesses to te stify.”). And even if a sequestration order is in place, and it is violated by witnesses in a given c ase, the violation does not warrant relief unless the defendant can show that it prejudiced his or her trial. People v King , 215 Mich App 301, 309; 544 NW2d 765 (1996).-12- Accordingly, for all of these reasons, Friday has failed to est ablish a plain error concerning the witnesses’ in-cour t identificati on of him at tri al.

B. GREAT WEIGHT OF THE EVIDENCE

Friday argues that his convicti ons are against the great weigh t of the evidence because the evidence admitted at trial show ed that he was not one of the pe rpetrators. We disagree.

1. STANDARD OF REVIEW AND APPLICABLE LAW

Because Friday did not preserve this issue by raising it in a m otion for a new trial, it is reviewed for plain error affecting his substantial rights. People v Musser , 259 Mich App 215, 218; 673 NW2d 800 (2003). A new trial may be granted, on some or all of the issues, if a verdict is against the great we ight of the evidence. MCR 2.611 (A)(1)(e).

The test to determine whether a verdict is against the great we ight of the evidence is whether the evidence preponde rates so heavily against the ve rdict that it would be a miscarriage of justice to allow the verdict to stand. Conflicting testimony, even when impeached to some extent, is an insufficient ground f or granting a new trial. [U]nless it can be said that directly contradictory tes timony was so far impeached that it was deprived of all probative value or that t he jury could not believe it, or contradicted indi sputable physical facts or defi ed physical realities, the trial court must defer to the jury’s determination. [ Musser , 259 Mich App at 218-219 (quotation marks and citations omitted; alteration in o riginal).]

See also People v Lemmon , 456 Mich 625, 642-647; 576 NW2d 129 (1998); People v Unger
, 278 Mich App 210, 232; 749 NW2d 272 (2008).

2. ANALYSIS

Danny, Olie, and DR each recalled seeing Friday at the house wh en the crimes were committed and identified him as one of the three perpetrators. Although Friday points to inconsistencies in the eyewitnesses’ descriptions and testimony , he does not argue that their testimony contradicted indisputable physical facts or defied ph ysical realities, and he has not established that their testimony was so far impeached that it w as deprived of all probative value. See Musser , 259 Mich App at 218-219. Apart from the eyewitnesses’ identi fications, the jury could also infer that Friday participated in the crimes based o n the discovery of his cell phone in the grass on the victims’ property immediately after the offens es, as this fact allowed the jury to infer that Friday dropped his phone while committing the crimes

. As Friday emphasizes, he and his sister offered testimony that a friend borrowed his phone, and he, his sister, and his grandmother maintained that he was caring for his grandmother on August 14. But Friday admitted to the female prosecutor at trial that he lies to “females all day everyday.” Moreover, his sister was the only witness who c laimed that Friday never left the house. Friday’s grandmother was confined upstairs and did not know whether Friday left that-13- day, and even Friday admitted that he left on one occasion to g o to the liquor store. We must defer to the jury’s resoluti on of these factual questions. See Musser , 259 Mich App at 218-219.

Because the evidence does not preponderate heavily against the jury’s verdict, Friday cannot establish plain error affec ting his substantial rights. See id . at 218.

C. INEFFECTIVE ASSISTANCE OF COUNSEL

Next, Friday raises several i neffective assistance of counsel claims. All of them lack merit.

1. STANDARD OF REVIEW AND APPLICABLE LAW

Because Friday did not raise thi s issue in the trial court thr ough a motion for a new trial or evidentiary hearing, and we denied his motion to remand, 7 our review of this issue is limited to mistakes apparent from the record. People v Lane , 308 Mich App 38, 68; 862 NW2d 446 (2014); People v Sabin (On Second Remand) , 242 Mich App 656, 658-659; 620 NW2d 19 (2000).

2. ANALYSIS

First, Friday argues that defen se counsel was ineffective for failing to move to suppress Danny’s in-court identification of him. As previously explaine d, the on-the-scene identification by Danny did not involve an impermissibly suggestive identifica tion procedure. Therefore, any motion to suppress Danny’s in-court identification on this basi s would have been futile, and defense counsel is not ineffective for failing to make a futile motion. Thomas , 260 Mich App at 457.

Second, Friday argues that defense counsel was ineffective for failing to call three witnesses, Shaylon Friday, M eakia Boyd, and Jasmine Johnson, wh o he claims heard Terrance Taylor, Jr., confess to the crimes. Friday has failed to estab lish that he is entitled to relief because he has not established a factual predicate for this cla im. See People v Carbin , 463 Mich 590, 600; 623 NW2d 884 (2001).

Citing the affidavit attached to his brief on appeal and motion to remand, Friday argues that he told defense counsel that he knew who committed the cri me and that several witnesses heard that person confess to the crime. 8 While an affidavit was required to be filed with Friday’s motion to remand, MCR 7.211(C)(1), “it is impermissible to expa nd the record on appeal,” People v Powell , 235 Mich App 557, 561 n 4; 599 NW2d 499 (1999). See also People v Seals
, 285 Mich App 1, 20-21; 776 NW2d 314 (2009).

7 People v Friday , unpublished order of the Court of Appeals, entered February 1 0, 2016 (Docket No. 326467).

8 Friday’s claims regarding Taylor’s confession are also undermi ned by the fact that Friday and Shaylon both testified at trial but never mentioned the confess ion.-14- Nevertheless, even if we were to consider the affidavit, Friday ’s self-serving statements, without more, would not prove his innocence. Because there wer e three perpetrators, Taylor’s confession would not exclude Friday as one of the other two per petrators and thereby exonerate him. Again, three witnesses identified Friday as one of three perpetrators, and his phone was recovered from the scene. Accordingly, the affidavit is insuff icient to establish the factual predicate for his claim that his defense counsel’s performance fell below an objective standard of reasonableness, and Friday cannot establish the requisite preju dice. See Carbin , 463 Mich at 600; Gaines , 306 Mich App at 300.

D. SENTENCING

1. ALLEGED SCORING ERRORS

Friday next contends that rese ntencing is required because the trial court’s scoring of OVs 8, 10, and 13 was not supported by a preponderance of the e vidence. See Hardy , 494 Mich 438. We disagree.

As previously discussed, MCL 777.38(1)(a) provides that 15 poi nts should be scored for OV 8 when “[a] victim was as ported to another place of greater danger or to a situation of greater danger or was held captive beyond the time necessary to commit the offense.” When Friday unsuccessfully attempted to start the vehicle, the carjacking w as complete, but the perpetrators nevertheless continued to hold Danny captive at gunpoint. Ther efore, the trial court did not err in scoring 15 points for OV 8 because Danny was held captive be yond the time necessary to commit the carjacking.

MCL 777.40(1)(b) provides that 10 points should be scored for OV 10 if “[t]he offender exploited a victim’s physical disability, mental disability, yo uth or agedness, or a domestic relationship, or the offender a bused his or her authority statu s.” Points should be assessed under OV 10 only when it is readily appa rent that a victim was vulner able, and the existence of a factor “does not automatically equate with victim vulnerability.” MCL 777.40(2). See also People v Cannon , 481 Mich 152, 158-159; 749 NW2d 257 (2008). The record demon strates that Danny and Olie were great-grandparents caring for their great-grandso ns when the crimes were committed, supporting a clear inference that Danny and Olie wer e advanced in years. Likewise, the PSIR indicates that Danny was 69 and Olie was 74 at the tim e of the offense. Moreover, according to the prosecutor’s warrant recommendation in the low er court file, this case was flagged for the “elder abuse” unit. Notably, the perpetrators pulled in behind Danny and blocked his car immediately after he entered it in the driveway. Consi dered together, these facts strongly support an inference that the perpetrators targeted Danny based on his age and appearance. The trial court did not err in assessing 10 points for OV 10.

MCL 777.43(1)(c) provides that 25 points should be scored for OV 13 if “[t]he offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a person.” Friday argues that the crimes were a one-time occurrence and di d not amount to a “pattern” under the statute. However, in People v Francisco , 474 Mich 82, 86; 711 NW2d 44 (2006), the Michigan Supreme Court explained that a “pattern” is establishe d merely by proving that three or more crimes were committed within a five-year period, specifica lly considering the sentencing offense. See also MCL 777.43(2)(a) (“For determining the appro priate points under this-15- variable, all crimes within a 5 -year period, including the sent encing offense, shall be counted regardless of whether the offense resulted in a conviction.”). Accordingly, because Friday’s offenses all occurred on August 14 and, therefore, within a fiv e-year period, the trial court did not err in assessing 25 points for OV 13.

2. JUDICIAL FACT-FINDING

Friday also argues that this Court should remand for resentenc ing because the trial court scored OVs 1, 4, 8, and 10 based on facts that were not admitte d by Friday or found by a jury beyond a reasonable doubt. As the prosecution concedes, we agr ee that Friday’s constitutional rights were violated at sentencing and conclude that the approp riate remedy is a Crosby 9 remand, as outlined in People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015).

a. STANDARD OF REVIEW

Because Friday did not object to the trial court’s scoring of the offense variables on Sixth Amendment grounds, these claims are unpreserved and reviewed fo r plain error affecting substantial rights. Lockridge , 498 Mich at 392-393.

b. ANALYSIS

In Lockridge , 498 Mich at 364, the Michigan Supreme Court concluded that Mi chigan’s sentencing guidelines were “constitutionally deficient” to the extent that “the guidelines require[d] judicial fact-finding beyond facts admitted by the defendant o r found by the jury to score offense variables (OVs) that mandatorily increase[d] the floor of the guidelines minimum sentence range, i.e., the ‘mandatory minimum’ sentence under Alleyne. ” To cure the constitutional violation, the Court “sever[ed] MCL 769.34(2) to the extent that it is mandatory and [struck] down the requirement of a ‘substantial and compell ing reason’ to depart from the guidelines range in MCL 769.34(3).” Id. at 391-392. The Court concluded that a Crosby remand, so that the trial court may determine whether it “would have imposed a materially different sentence but for the c onstitutional e rror,” is approp riate for “all defendants (1) who can demonstrate that their guidelines minimum sentence range was ac tually constrained by the violation of the Sixth Amendment and (2) whose sentences were n ot subject to an upward departure.” Id . at 395-396. In “cases in which facts admitted by a defendant or found by the jury verdict were insufficient to assess the minimum number of OV points necessary for the defendant’s score to fall in the cell of the sentencing grid un der which he or she was sentenced[,] . . . an unconstitutional constraint actually impaired the defe ndant's Sixth Amendment right.” Id

. at 395.

Friday challenges the trial court’s assessment of 15 points fo r OV 1, MCL 777.31(1)(c) (“[a] firearm was pointed at or toward a victim or the victim h ad a reasonable apprehension of an

9 United States v Crosby , 397 F3d 103 (CA 2, 2005).-16- immediate battery when threatened with a knife or other cutting or stabbing weapon”); 10 10 points for OV 4, MCL 777.34(1)(a) (“ [s]erious psychological inj ury requiring professional treatment occurred to a victim”); 15 points for OV 8, MCL 777.3 8(1)(a), as previously discussed; and 10 points for OV 10, MCL 777.40(1)(b), as also p reviously discussed. Even if there is record support for the findings required for each OV, none of Friday’s convictions required the jury to make these findings, and Friday did not ad mit any of the requisite facts when he testified at trial. Without the 45 points attributable to the scoring of OVs 1, 4, 8, and 10, Friday’s total OV score is reduced from 90 points to 45 points, and, in turn, his minimum range calculated under the sentencing guidelines is reduced from 135 to 225 months (under OV Level V) to 108 to 180 months (under OV Level III). See MCL 777.62. Thus, Friday’s minimum sentence range was actually constrained by the Sixth Amendment violation. See Lockridge , 498 Mich at 395.

Accordingly, because the trial court did not impose an upward departure sentence in this case, Friday is entitled to a Crosby remand so that the trial court may determine whether it would have imposed a materially different sentence under the now-advi sory sentencing guidelines. Id

. On remand, the trial court shall follow the procedure described in Part VI of the Supreme Court’s opinion in Lockridge , 498 Mich at 395-399.

E. FRIDAY’S STANDARD 4 BRIEF

Friday raises additional issues in a pro se supplemental brief filed pursuant to Supreme Court Administrative Ord er No. 2004-6, Standard 4, none of whic h have merit.

1. JOINDER

Friday first argues that the tri al court lacked the authority to try Carter and Friday together under MCR 6.121. Friday’s unpreserved claim is review ed for plain error affecting his substantial rights. Carines , 460 Mich at 763-764.

Friday’s argument is inconsis tent with MCR 6.121(A), which exp ressly permits joinder:

(A) Permissive Joinder. An information or indictment may char ge two or more defendants with the same of fense. It may charge two or mo re defendants with two or more offenses when

(1) each defendant is charged with accountability for each off ense, or
(2) the offenses are relat ed as defined in MCR 6.120(B).

When more than one offense is alleged, each offense must be st ated in a separate count . . . .

10 Friday concedes that the trial court could have assessed five points under OV 1 because “[a] weapon was displayed or im plied.” MCL 777.31(1)(d).-17- A prosecutor makes this charging decision when filing an inform ation or indictment under MCR 6.112(C). In this case, the prose cutor charged Carter and Frid ay with accountability for the same four offenses. MCR 6.121(C)(1). Friday seems to attribute thi s charging decision to the trial court and consequently argue that it acted outside its authorit y, but Friday’s argument is inconsistent with the record and criminal procedure. Friday ci tes a trial court’s power under MCR 6.120(B) to join offenses charged in two or more informatio ns or indictments after a defendant has been charged and, therefore, claims that a trial court lacks similar discretion under MCR 6.121 to join defendants in separate informations or indict ments after they have been charged. But, again, Friday’s argument is misguided here, as t he prosecutor charged both defendants in the same felony information.

Friday has failed to establish that the trial court committed a ny plain error with respect to the joinder. See Carines , 460 Mich at 763-764.

2. SEVERANCE

Friday also argues that he and Carter should have been tried se parately because they had irreconcilable defenses. “Failure to move for a separate trial precludes appellate review.” People v Daniel , 207 Mich App 47, 53; 523 NW2d 830 (1994). N evertheless, evenif we were to address this issue, we would conc lude that Friday’s and Carter’ s defenses were not so incompatible that they could not both be believed. See People v Hana , 447 Mich 325, 349-350; 524 NW2d 682 (1994). Friday and Carter both claimed that they were not present during the crimes. The fact that Carter’s defense counsel distanced Carte r’s conduct from Friday’s conduct when referencing the cell phone p ictures, and that Carter’s def ense counsel’s cross-examination reiterated the differences betw een Danny’s confidence in his de scription of Friday and his lack of confidence in his description of Carter, did not make defendant s’ alibi defenses mutually exclusive. Accordingly, Friday has not established a plain err or affecting his substantial rights based on the trial court’s failure to sever the trials sua spon te. See Carines , 460 Mich at 763- 764.

3. PROSECUTORIAL MISCONDUCT

Lastly, Friday contends that the prosecutor committed miscondu ct by failing to inform the jury of inconsistencies in Olie’s and DR’s testimony and byrelying on evidence from those witnesses to obtain his convict ions. We disagree. Defendant f ailed to preserve his claims of prosecutorial misconduct by “contemporaneously object[ing] and request[ing] a curative instruction.” People v Bennett , 290 Mich App 465, 475; 802 NW2d 627 (2010). Thus, we review defendant’s unpreserved cla ims for plain error affecting substantial rights. Id . at 475-476, citing Carines , 460 Mich at 763.

A defendant’s constitutional due process rights are violated wh en his conviction is “obtained through the knowing us e of perjured testimony[.]” People v Aceval , 282 Mich App 379, 389; 764 NW2d 285 (2009). “[A] prosecutor has an obligati on to correct perjured testimony that relates to the facts of the case or a witness’s credibility.” People v Gratsch, 299 Mich App 604, 619; 831 NW2d 462 (2013), vacated in part on othe r grounds 495 Mich 876 (2013). “If a conviction is obtained through the knowing use o f perjured testimony, it must be set aside if there is any reason able likelihood that the false testimony could have affected the-18- judgment of the jury.” Aceval , 282 Mich App at 389 (quotation marks and citations omitted). However, reversal is not necessary when the prosecutor does not attempt to conceal contradictions in a witness’s testimony, and defense counsel is afforded a sufficient opportunity to impeach the witness’s credibility through the use of prior s tatements. People v Parker , 230 Mich App 677, 690; 584 NW2d 753 (1998).

The prosecutor was not required to disbelieve Olie’s testimonyabout Friday’s hair and clothing merely because DR’s testimony contradicted her in some respects. See generally People v Lester , 232 Mich App 262, 278-279; 591 NW2d 267 (1998), overruled in part on other grounds by People v Chenault , 495 Mich 142, 146; 845 NW2d 731 ( 2014). In any event, it is clear from the record that the prosecutor did not attempt to co nceal the contradictions in the witnesses’ testimony that Friday identifies on appeal, and thatdefense counsel was afforded an extensive opportunity to impeach the witnesses’ credibility. S ee Parker , 230 Mich App at 690. The lineup photographs were also admitted into evidence, thereb y giving the jury an opportunity to compare the pictures with the witnesses’ descriptions of Fri day in the lineup. Accordingly, to the extent that the witnesses’ testimony included inconsistenci es, the prosecutor and defense counsel equipped the jury to eval uate it, in full, and perform its role as the trier of fact. See People v Dobek , 274 Mich App 58, 70; 732 NW2d 546 (2007) (“A prosecutor’s goo d-faith effort to admit evidence does not constitute misconduct.”). Friday ha s not established a plain error affecting his substantial rights. See Bennett , 290 Mich App at 475-476.

IV. CONCLUSION

We affirm defendants’ convictions in both cases. In Docket No . 326442, we also affirm Carter’s sentences, but we vacate the portion of the October 16 , 2015 order stating that OV 8 should be scored at zero points. In Docket No. 326467, we rema nd for a Crosby procedure with respect to Friday’s sentences . We do not retain jurisdiction.

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