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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

March 17, 2016 

v No. 325120 

Kent Circuit Court 

JAMES LYNN JOHNSON, LC No. 13-008834 - FH 

 Defendant-Appellant. 

Before: O’CONNELL, P.J., and MARKEY and MURRAY, JJ. 

PER CURIAM. 

 Defendant, James Lynn Johnson, appeals as of right his convictions, following a jury 

trial, of third-degree fleeing and eluding, MCL 750.479(a)(3), felon-in-possession of a firearm, 

MCL 750.224f, possession of a loaded firearm in a vehicle, MCL 750.227c, possession of a 

firearm during the commission of a felony (felony-firearm), MCL 750.227b, operating with a 

suspended license, MCL 257.904(1), and operating while intoxicated, MCL 257.625(1)(a). The 

trial court sentenced Johnson as a third-offense habitual offender, MCL 769.11, to serve 3 years, 

6 months to 10 years’ imprisonment for fleeing and eluding, 3 years, 6 months to 10 years’ 

imprisonment for felon-in-possession, 2 years, 6 months to 4 years’ imprisonment for possessing 

a loaded firearm in a vehicle, 12 months in jail for operating while his license was suspended, 93 

days in jail for operating while intoxicated, and a consecutive term of 2 years’ imprisonment for 

his felony-firearm conviction. We affirm. 

I. FACTUAL BACKGROUND 

 According to City of Grand Rapids Police Officer Philip Nevins, he was monitoring 

traffic on August 7, 2013, at about 10:00 p.m. from his parked, semi-marked police vehicle when 

he observed a blue Chrysler Pacifica playing music well above the volume limit of the city’s 

evening noise ordinance. His police car was a blue Crown Victoria that did not have markings 

on its sides, but it had grill, mirror, and visor lights. Officer Nevins pulled out of his parked 

location to stop the Pacifica, activating his red and blue flashing lights and his strobe lights. The 

Pacifica turned west on a residential street with a speed limit of 25 miles an hour. The Pacifica 

began to slow down and Officer Nevins, who was wearing a police uniform, saw Johnson, the 

driver, turn to look at him from about 20 to 25 feet away. Johnson suddenly accelerated his car 

to somewhere between 35 and 45 miles per hour and abruptly turned left. Officer Nevins did not 

pursue him because of department policy, but did radio a description of the car to dispatch. 
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 Johnson testified that he was driving his girlfriend’s blue Pacifica and playing music 

loudly. He knew that his license was suspended and he was drinking at his home before he 

drove. According to Johnson, he saw lights activate on a vehicle behind him. When asked if he 

stopped for the police officer, Johnson testified, “Well, this—no, not to a complete stop, no.” He 

admitted that he started slowing down but decided to drive away. 

 About 30 seconds after Officer Nevins radioed a description of the car, other officers 

informed him that they located the Pacifica a few blocks away. Officer Nevins found Johnson 

walking on the street. While Officer Nevins initially testified that he believed Johnson was 

intoxicated and he smelled of alcohol, defense counsel impeached Nevins with a police report in 

which he reported that Johnson did not smell of alcohol. Officers later determined that Johnson 

had a blood alcohol content of 0.21. 

 According to Officer Robert Zabriskie, he investigated Johnson’s flight path after 

Johnson was arrested to see if he could find evidence or witnesses. Officer Zabriskie talked with 

Lucinda Lopez on the front porch of her home. Lopez was not fluent in English, but with two of 

her neighbor’s children acting as interpreters, Lopez told Officer Zabriskie that a blue vehicle 

drove very quickly past her home and threw a bag out of the window. At trial, Lopez testified 

that she saw the driver of the blue vehicle throw a bag from the driver’s side window, and the 

bag landed in the middle of the street. 

 Officer Zabriskie found a bag in the street that contained a box of shotgun shells. Some 

shells were scattered in the street around the bag, consistent with it having been thrown from a 

moving vehicle. He later found a loaded 12-gauge shotgun in the middle of the street a short 

distance up the road. Johnson denied having a loaded shotgun or shells in his vehicle. 

II. HEARSAY 

 In his pro se brief filed pursuant to Michigan Supreme Court Order 2004-6, Standard 4, 

Johnson contends that Officer Zabriskie’s testimony about what Lopez told him was improper 

hearsay. We disagree. 

 This Court reviews preserved challenges to the admission of hearsay for an abuse of 

discretion. People v Snider, 239 Mich App 393, 419; 608 NW2d 502 (2000). The trial court 

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

Orr, 275 Mich App 587, 588-589; 739 NW2d 385 (2007). 

 Hearsay is “a statement, other than the one made by the declarant while testifying at the 

trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). 

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

However, both the United States and Michigan constitutions protect a defendant’s right to 

confront the witnesses against him or herself. US Const, Am VI; Const 1963, art 1, § 20. The 

improper admission of hearsay may implicate the defendant’s state and federal constitutional 

rights. People v Dendel (On Second Remand), 289 Mich App 445, 452-453; 797 NW2d 645 

(2010). See Crawford v Washington, 541 US 36, 50-51; 124 S Ct 1354; 158 L Ed 2d 177 

(2004). When the evidentiary error is preserved, nonconstitutional error, we presume that the 

error is harmless unless it appears from an examination of the entire record that it is more 
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probable than not that the error was outcome determinative. People v Lukity, 460 Mich 484, 

496; 596 NW2d 607 (1999). 

 In this case, the trial court allowed Officer Zabriskie to testify about Lopez’s statements 

on the basis that they explained why he began searching the street. The trial court also instructed 

the jury that it could not consider Officer Zabriskie’s testimony about what Lopez told him as 

substantive evidence. “An out-of-court statement introduced to show its effect on a listener, as 

opposed to proving the truth of the matter asserted, does not constitute hearsay under MRE 

801(c).” People v Gaines, 306 Mich App 289, 306-307; 856 NW2d 222 (2014). We conclude 

that the trial court’s decision to allow Officer Zabriskie to testify about what Lopez told him did 

not fall outside the range of principled outcomes.1

 

 Johnson also contends that admission of this evidence violated his right to confrontation. 

However, trial counsel did not object on this ground below. An objection on one ground does 

not preserve a challenge to an issue on another ground. People v Kimble, 470 Mich 305, 309; 

684 NW2d 669 (2004). Accordingly, we will review Johnson’s confrontation argument for plain 

error affecting his substantial rights. See People v Benton, 294 Mich App 191, 202; 817 NW2d 

599 (2011). 

 The Confrontation Clause prohibits the use of out-of-court testimonial statements to 

prove the truth of a matter asserted. Crawford, 541 US at 68. However, “a statement offered to 

show the effect of the out-of-court statement on the hearer does not violate the Confrontation 

Clause.” People v Chambers, 277 Mich App 1, 10-11; 742 NW2d 610 (2007). As previously 

discussed, in this case, Officer Zabriskie’s testimony was not offered to prove the truth of 

Lopez’s statements. Lopez herself testified about her statements. Additionally, that Officer 

Zabriskie received Lopez’s statements through neighbor children had no effect on Johnson’s 

right to confrontation. An interpreter is not generally an additional declarant. See People v 

Jackson, 292 Mich App 583, 595-596; 808 NW2d 541 (2011). We conclude that the trial court 

did not plainly err by violating Johnson’s right to confrontation. 

III. SUFFICIENCY OF THE EVIDENCE 

 A claim that the evidence was insufficient to convict a defendant invokes that defendant’s 

constitutional right to due process of law. People v Wolfe, 440 Mich 508, 514; 489 NW2d 748 

(1992); In re Winship, 397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970). Thus, this Court 

reviews de novo a defendant’s challenge to the sufficiency of the evidence supporting his or her 

conviction. People v Henderson, 306 Mich App 1, 8; 854 NW2d 234 (2014). We review the 

evidence in a light most favorable to the prosecution to determine whether a rational trier of fact 

could find that the prosecution proved the crime’s elements beyond a reasonable doubt. Id at 9. 

 

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 Additionally, we note that Lopez testified that she saw the driver of a blue vehicle throw a bag 

out of the window. Officer Zabriskie’s testimony on this point was not outcome determinative. 
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 First, Johnson contends through counsel that there was insufficient evidence that Officer 

Nevins was sufficiently identified as a police officer and that Johnson attempted to avoid capture 

under his fleeing and eluding conviction. We disagree. 

 Two elements of fleeing and eluding require a defendant to know that the officer 

involved is a law-enforcement officer: 

(1) the law enforcement officer must have been in uniform and performing his 

lawful duties and his vehicle must have been adequately identified as a law 

enforcement vehicle, (2) the defendant must have been driving a motor vehicle, 

(3) the officer, with his hand, voice, siren, or emergency lights must have ordered 

the defendant to stop, (4) the defendant must have been aware that he had been 

ordered to stop, (5) the defendant must have refused to obey the order by trying to 

flee from the officer or avoid being caught, which conduct could be evidenced by 

speeding up his vehicle or turning off the vehicle’s lights among other things, and 

(6) some portion of the violation must have taken place in an area where the speed 

limit was thirty-five miles an hour or less, or the defendant’s conduct must have 

resulted in an accident or collision, or the defendant must have been previously 

convicted of certain prior violations of the law as listed in MCL 750.479a(3)(c). 

[People v Grayer, 235 Mich App 737, 741; 599 NW2d 527 (1999).] 

Whether an officer was adequately identified depends on the facts of each case. People v Green, 

260 Mich App 710, 719 n 3; 680 NW2d 477 (2004). This Court will not interfere with the trier 

of fact’s role to determine the weight of the evidence or the credibility of the witnesses. People v 

Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008). Circumstantial evidence and 

reasonable inferences arising from that evidence can sufficiently prove the elements of a crime, 

including the defendant’s knowledge or intent. Id. at 622. 

 We conclude that sufficient evidence supported the jury’s finding that Johnson knew 

Officer Nevins was a law-enforcement officer. Officer Nevins testified that he was in a semimarked car that included red and blue flashing lights and strobe lights and was wearing a police 

uniform. According to Officer Nevins, Johnson initially began to slow down, but then looked at 

Nevins, sped up to 35 to 45 miles per hour in a 25 mile per hour zone, and abruptly turned left. 

Johnson testified that he did not fully stop and decided to continue driving. This evidence was 

sufficient to support the jury’s findings that Officer Nevins’s vehicle was sufficiently identified, 

Johnson knew Officer Nevins was a police officer attempting to effectuate a lawful stop, and that 

Johnson took evasive action to avoid capture. 

 Second, Johnson contends that there was insufficient evidence of his possession of the 

shotgun to support his firearms-related convictions. Again, we disagree. 

 Johnson primarily contends that there was a lack of competent evidence linking him to 

the shotgun that Officer Zabriskie found in the street. “Possession can be proved by 

circumstantial or direct evidence and is a factual question for the trier of fact.” People v 

Johnson, 293 Mich App 79, 83; 808 NW2d 815 (2011). Circumstantial evidence and direct 

evidence are equally competent. Zolton v Rotter, 321 Mich 1, 8; 32 NW2d 30 (1948). 
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 In this case, Lopez testified that she saw someone throw a bag from a blue vehicle that 

traveled past her house. According to Officer Zabriskie, Johnson was driving a blue vehicle and 

was stopped a short distance away. Officer Zabriskie discovered a bag of shotgun shells in the 

street in front of Lopez’s house. Some of the shotgun shells were scattered, consistent with 

someone throwing a bag from a moving vehicle, and he also discovered a loaded shotgun a short 

way down the street. The street was not very busy at that time, and Officer Zabriskie blocked off 

the street to preserve the evidence. Viewing the evidence in the light most favorable to the 

prosecution, we conclude that there is sufficient circumstantial evidence from which a rational 

juror could find beyond a reasonable doubt that Johnson possessed the shotgun. 

IV. INEFFECTIVE ASSISTANCE OF COUNSEL 

 In his pro se brief, Johnson contends that the trial court was ineffective for impeaching 

witnesses instead of moving to exclude testimony that Johnson characterizes as false and 

perjured. We disagree. 

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

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

80 L Ed 2d 657 (1984). A defendant must move the trial court for a new trial or evidentiary 

hearing to preserve the defendant’s claim that his counsel was ineffective. People v Unger, 278 

Mich App 210, 242; 749 NW2d 272 (2008). When the trial court has not conducted a hearing to 

determine whether a defendant’s counsel was ineffective, our review is limited to mistakes 

apparent from the record. People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). 

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

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

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

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

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

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

278 Mich App at 242. How counsel questions witnesses and what evidence to present are 

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

 In People v Odom, 276 Mich App 407, 416; 70 NW2d 557(2007), the defendant claimed 

“that he was denied effective assistance of counsel by his counsel’s failure to object to false 

testimony given by various witnesses.” This Court held that “one cannot object simply because 

one thinks a witness is lying,” and counsel is “not ineffective for failing to object to testimony on 

this basis.” Id. 

 In this case, Johnson has not demonstrated that defense counsel’s decision to impeach the 

officers regarding their inconsistent testimonies instead of accusing the officers of perjury was 

unreasonable. Our review of the record indicates that defense counsel ably handled the officers’ 

inconsistent testimony. Defense counsel had no basis to challenge the testimony as perjured 

simply because it was inaccurate. See id. at 416. Instead, counsel properly challenged the 

witnesses’ credibility by impeaching them with their prior, inconsistent statements. We conclude 

that Johnson has not demonstrated that counsel’s strategy for presenting evidence and 

questioning the witnesses was unreasonable. 
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 We affirm. 

/s/ Peter D. O’Connell 

/s/ Jane E. Markey 

/s/ Christopher M. Murray