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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 7, 2016

v No. 322133
Berrien Circuit Court ANTHONY DANIEL WALKER, LC No. 2013-004526-FC

Defendant-Appellant.

Before: M ARKEY , P.J., and O WENS and R ONAYNE KRAUSE , JJ.

P ER C URIAM

.

Defendant, Anthony Daniel Walker, was convicted by a jury of two counts of armed robbery, MCL 750.529; assault with i ntent to rob while armed, M CL 750.89; felon-in-possession of a firearm, MCL 750.224f; and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227(b). D efendant was sentenced to 3 5 to 100 years’ imprisonment on each of his armed robbery and assault with intent to rob whi le armed convictions, 76 to 240 months’ imprisonment on his fel on-in-possession of a firearm co nviction, and 2 years’ imprisonment for his felony-fire arm conviction. He appeals as of right. We affirm.

These convictions arose out of an armed robbery that occurred on October 14, 2013, at
1011 Lavette Street in Benton Har bor, MI. Na’eisha Dudley, Shabree Batty, and Damarcus Hockett arrived together to meet defendant at this location. T he three other individuals and defendant went into the house and began watching TV in the livi ng room. Na’eisha stated that defendant was walking back and forth between the living room an d a bedroom in which another
man was located.

Soon after, defendant entered the living room with a gun and t old Hockett and Batty to “get down.” The other man began to go through Na’eisha’s pocke ts and took her keys, cellular telephone, and a little bag of marijuana. After the man took these items from Na’eisha, he pointed the gun at her and said, “you too.” Defendant then sta ted, “I don’t even know why you took this chance . . . I’m going to have fun with you, too.” T he other man then went up to Hockett and started taking off Hockett’s pants and shoes. He then took Hockett’s cell phone from his pocket.

At this point, Na’eisha testified that Batty stood up and “rus hed defendant,” who was still holding the gun in his hand. A fight ensued. Na’eisha testifi ed that Hockett and the other man began to fight. Na’eisha ran outside, observed some people on a porch across the street, and-2- asked if she could use their phone to call 911 and one of the p eople gave her their phone. Kenneth Bell, one of the indivi duals on the porch, testified th at he heard a “great commotion inside the house,” which sounded like something was knocked ove r and glass was broken.

While Na’eisha waited for police, she observed Hockett run outof the house and down the street without pants or shoes. She further testified that defendant followed Hockett out of the house and pointed the gun at him . Bell corroborated both of th ese statements.

When the police arrived at the home, Na’eisha, Batty, and Hock ett were outside the
house. Officer Harmon observed t hat Hockett was shoeless, and that Batty and Hockett appeared “excited”, “scared”, and had a “sense of fear on their faces.” The officers also testified that it looked as though a struggle had occurred inside the house. Fur thermore, there was a hat recovered inside the home that Na’eisha testified belonged to d efendant. The hat had DNA that
matched the defendant’s.

At trial, neither Batty nor Ho ckett testifie d. Further, the unidentified man in the home did not testify, and defendant would not reveal his last name. It was further discovered that defendant on numerous occasions attempted to give money to Na’e isha. Defendant testified that it was to pay for the marijuana stolen from her pants pocket du ring the robbery. However, Na’eisha stated that it was likely to convince her not to testi fy against defendant. The jury subsequently found defendant guiltyon the above mentioned char ges, and this appeal followed.

I. DID THE PROSECUTOR DEPRIVE DEFENDANT OF DUE PROCESS OF LAW

AND A FAIR TRIAL?

Defendant first argues that the prosecutor committed misconduc t by suppressing evidence
in violation of Brady v Maryland , 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963). Defendant argues for the first time on appeal that the prosecutor violate d Brady ; therefore, this issue is reviewed for plain error affecting substantial rights. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999). Under Brady , “the suppression by the prosecution of evidence favorable to an accused upon request violat es due process where the evide nce is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” Brady , 373 US at 87. Thus, the three components of a Brady violation are “(1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) that is material.” People v Chenault , 495 Mich 142, 150; 845 NW2d 731 (2014). 1

Defendant advances several Brady claims on appeal. First, he argues that the prosecutor
violated Brady by failing to discover video surveillance at Campus Q, a local pool hall, which

1 Both plaintiff and defendant im properly cited the four-factor test in People v Lester , 232 Mich App 262, 281-282; 591 NW2d 267 (1998), as the test to determine if there was a Brady violation.
The Court in Chenault overruled Lester , rejecting its addition of a diligence requirement to Brady

. Chenault , 495 Mich at 152. Specifically, it rejected the requirement that a defendant claiming a Brady violation could not have obtained the evidence with reasonable diligence. See

Lester , 232 Mich App at 281-282.]-3- would have allegedly supported defendant’s testimony. Defendan t claims he met Na’eisha at Campus Q for a drug transaction the night before the charged of fenses occurred. Na’eisha denied meeting defendant there. The record supports that defen dant requested video surveillance from Campus Q in a letter to his attorney. The prosecutor was notified of defendant’s request and had Detective Wes Smigielski investigate the potential vide o evidence. However, Detective Smigielski could not obtain video surveillance from Campus Q be cause it was unavailable. Accordingly, because this evidence was never within the prosecu tor’s control, it was not suppressed. Id.

Defendant also claims a Brady violation based on the prosecutor’s failure to produce the other two victims, Batty and Hockett, as witnesses at trial. 2 However, there is no evidence that the prosecutor kept the names of these witnesses from defendant . Defendant was made aware of Batty and Hockett on the prosecutor’s initial witness list; how ever, they were not listed as witnesses that the prosecutor intended to call at trial. Nothi ng in the record supports—and defendant does not argue—that he r equested the prosecutor to se cure their presence at trial. See People v Koonce , 466 Mich 515, 521; 648 NW2d 153 (2002) (indicating that the p rosecutor must provide reasonable assistance t o the defendant, upon request, t o secure defense witnesses for trial).

Moreover, there is no indicati on that Batty or Hockett would h ave testified favorably for the defense, given that they were listed as victims to the char ged crimes. Therefore, even if this testimony was suppressed by the pr osecutor, there is no indicat ion that it would have been favorable to the accused. In fact, the absence of the two vict ims may have been beneficial to the defendant because it left only one victim to discredit and elim inated two other eye witnesses and defense counsel argued during closing statements that the absen ce of the other two victims could indicate that Na’eisha’s testimony was false. Therefore, defen dant’s Brady challenge with respect to these two witnesses fails.

The next Brady violation alleged by defendant concerns Na’eisha’s telephone r ecords. There was no evidence that the prosecutor ever obtained Na’eish a’s telephone records and failed
to disclose them to defendant. See People v Bosca , ___ Mich App ___; ___ NW2d ___ (Docket No. 317633, issued March 26, 2015); slip op at 13-14 (finding n o suppression of evidence where the prosecutor never obtained the victims’ telephone records; thus, “there existed no necessity to provide them to [the] defendant”). The record does indicate th at the defendant requested the phone records initially. The prosecutor, however, stated that he was “not committing to” obtaining Na’eisha’s telephone records. He stated that her rec ords were not a part of the initial

2 Under MCL 767.40a, the prosecutor is required to advise the de fendant of known witnesses who might be called at trial and other known res gestae witness es. People v Burwick , 450 Mich 281, 287; 537 NW2d 813 (1995). However, a prosecutor does not have a duty to discover and produce all res gestae witnesses. People v Perez , 469 Mich 415, 419; 670 NW2d 655 (2003). Rather, the prosecutor must provide reasonable assistance to th e defendant, upon request, to
secure defense witnesses for trial. People v Koonce , 466 Mich 515, 521; 648 NW2d 153 (2002); MCL 767.40a(5).-4- request made to the telephone c ompany, and it would take anothe r search warrantto obtain them. Thereafter, the trial court requested that the prosecutor speak with defense counsel, and then they
could decide whether another sea rch warrant needed to be execut ed.

“The prosecution is not required to ‘seek and find exculpatoryevidence’ or assist in building or supporting a defendant’s case, nor is it required t o ‘negate every theory consistent
with defendant’s innocence.’ ” Id. , quoting People v Coy , 258 Mich App 1, 21; 669 NW2d 831 (2003). Further, even if the te lephone records w ere within the prosecutor’s con trol, defendant fails to establish that they would have been favorable or mater ial to the outcome of his trial.

Chenault , 495 Mich at 150. Defendant asserts he would have used the re cords to impeach Na’eisha’s testimony. However, it is unlikely that this eviden ce would have undermined Na’eisha’s testimony in a material way. The evidence offered t o corroborate Na’eisha’s testimony was overwhelming. There were multiple witnesses, the defendant’s own phone records, and the officers’ tes timony. Therefore, even though d efendant requested the record initially, there is no indication that the records were further sought by him, possessed by the prosecution, or that the phone r ecords would have been favorabl e to defendant.

Defendant next argues that the p rosecutor and police failed to investigate the involvement of Tanganyika Dudley, Na’eisha’s mother. However, defendant fa ils to demonstrate that the prosecutor suppressed any evid ence concerning Tanganyika. Id. She testified at trial, and defendant was provided the opportunity to cross-examine her. T hus, defendant failed to establish plain error affecting substantial rights with respect to Tanganyika’s involvement in the

case. Carines , 460 Mich at 763.

Defendant’s final Brady claim concerns the testimony of “Trey” and “Renee,” two witnesses who were allegedly with defendant at the house where the offenses occurred. After initially refusing at trial to identify the individuals who wer e with him, defendant finally provided the names “Trey” and “R enee.” Defendant stated that h e did not know their last names. From the record, there is no indication that the prosecutor kne w any identifying information regarding these witne sses before trial. To the contrary, it ap pears that this information was only available to defendant. Defendant had the opportunity, before and during trial, to identify these individuals and request to bring them before the court. His re luctance to do so deprived himself of their potential testimony. Brady claims are grounded on the premise that the prosecution cannot suppress evidence. In this case, it is clearly the defe ndant doing the suppressing. Therefore, defendant ha s not established a Brady violation with respect t o these witnesses.

II. WAS DEFENDANT DENIED A FAIR T RIAL BY CONSTITUTIONALLY
INEFFECTIVE ASSISTANCE OF COUNSEL?

Defendant next argues that he wa s denied the effective assista nce of counsel due to defense counsel’s failure to “pursue key witnesses”; presumably , Batty, Hockett, “Trey,” and “Renee.” However, because this i ssue is unpreserved, our revie w is limited to mistakes apparent
on the lower court record. People v Fike , 228 Mich App 178, 181; 577 NW2d 903 (1998).

First, this court must address whether this argument was aband oned. Defendant’s counsel merely argues that prior defense counsel was “professio nally obligated” to “pursue key witnesses,” but he fails to provide any further explanation or analysis supporting his argument.-5- Defendant “may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give other cur sory treatment with little or no citation of supporting authority.” People v Kelly , 231 Mich App 627, 640-641; 588 NW2d 480 (1998). Therefore, this court need not consider the merits of defendant’s ineffective assistance of
counsel claim. Id.

However, because defendant addr esses the issue of ineffective assistance in his Standard 4 Brief, this court will address the issue. In order to establ ish ineffective trial counsel, the defendant must establish that counsel’s performance fell below an objective standard of reasonableness, and, but for counsel’s error, there is a reason able probability that the outcome of
defendant’s trial would have been different. People v Carbin , 463 Mich 590, 600; 623 NW2d 884 (2001).

Decisions regarding what witnesses to call at trial are presum ed to be matters of trial
strategy. People v Rockey , 237 Mich App 74, 76; 601 NW2d 887 (1999). We presume that it was trial strategy for defense counsel not to pursue the testim ony of Batty and Hockett, given that they were victims of the charged offenses and it was likel y that their testimony could have aided the prosecution. Further, regarding “Trey” and “Renee,” defendant fails to explain how their testimony would have helped his case. He notably admits that “it is unknown what the testimony of the missing witnesses . . . would reveal.” Theref ore, because it is not apparent from
the lower court record that th e testimony of the missing witnes ses would have benefitted defendant and affected the outcome of trial, defense counsel wa s not ineffective for failing to pursue them to testify.

III. DEFENDANT’S STANDARD 4 BRIEF

Defendant raises several issues in a Standard 4 Brief and a su pplemental Standard 4 Brief, which he filed upon a motion granted by this Court. People v Walker , unpublished order of the Court of Appeals, e ntered July 24, 2015 (Docket No. 3221 33).

In his Standard 4 Brief, defendant first argues that the trial judge erroneously conducted his preliminary examination and presided over his trial; thus, the circuit court’s jurisdictio n following defendant’s bind over was improper. We review de nov o issues concerning subjectmatter jurisdiction. People v Glass , 288 Mich App 399, 400; 794 NW2d 49 (2010). Pursuant to MCL 600.401, trial courts may adopt a plan of concurrent jurisd iction, through which a circuit court may be granted a right to exercise the power and jurisdic tion of a district court and vice versa. The trial courts in Berrien County adopted a plan of co ncurrent jurisdiction in a local administrative order (LAO), which conferred jurisdiction to the county’s judges to act in all proceedings in the circuit court, district court, and probate c ourt. See Berrien County LAO-6- 2015-03. 3 Our Supreme Court approved of Berrien County’s plan of concurrent jurisdiction in 2004. See Administrative Order No. 2004-02, 470 Mich lxiv (200 4).

Defendant also cites People v Ramsey , 385 Mich 221, 224; 187 NW2d 887 (1971), for the proposition that neither party gave consent to the trial co urt to conduct the preliminary examination and preside over the trial. However, Ramsey is not applicable under these facts. The primary issue in Ramsey was whether the trial court, acting as the trier of fact, coul d preside over both the preliminary examination and the trial. The court stated, “we hold that as an
absolute rule it is reversible error for the trial court sittin g without a jury to refer to the transcript of testimony taken at the preliminary examination except under the exceptions provided by

statute. A jury , if impanelled [sic], would not be aware of the testimony take n at a preliminary examination except under the provisions of the statute.” Id . at 225[emphasis added]. In this

case, a jury presided over the trial; thus, Ramsey would not apply.

Furthermore, the record indicates that defendant never raised this issue during trial. The fact that the same judge presided over both proceedings was obv ious; thus, defendant presumably was aware of this fact. If defendant were to succee d on this claim, the decision “would be contrary to the rule that defendants cannot harbor er ror as an appellate parachute.” [internal quotations omitted]. People v Franklin , 491 Mich 916; 813 NW2d 285, 286 (2012), citing People v Pipes , 475 Mich. 267, 278 n. 39, 715 N.W.2d 290 (2006). Therefore, defendant’s argument that the trial judge improperly presided o ver the preliminary examination and the jury trial is without merit.

Next, defendant argues that the circuit court did not have jur isdiction over him because he was never arraigned in circ uit court. Although there was no circuit court arraignment in the instant case, defendant signed a document following his prelimi nary examination that indicated that he waived arraignment, plead ed not guilty to the charges, and demanded a jury trial in circuit court. In doing so, defendant waived his right to a circuit co urt arraignment and consented to the circuit court’s jurisdiction. People v Nix , 301 Mich App 195, 207-208; 836 NW2d 224 (2013). However, regardless of defendant’s waiver, Berrien County elimi nated the requirement that a defendant be arraigned in circu it court pursuant to MCR 6.113(E ). See LAO 2014-02. 4 The prosecutor complied with the requirements of the local administrative order by serving defense counsel copies of the information and filing a proof of service with the trial court. There is no indication that defendant did not subsequently receive a copy o f the information. Therefore, defendant’s argument with respect to the circuit court arraignm ent is without merit.

3 The order that was in effect at the time of defendant’s trial concerning the courts’ plan of concurrent jurisdiction was act ually LAO 2013-06, which was rep laced and rescinded by LAO
2015-03. The orders contain the s ame pertinent language.

4 The order that was in effect at the time of defendant’s trial concerning circuit court arraignments was LAO 2007-05, which was replaced and rescinded by LAO 2014-02. The
orders contain the sam e pertinent language.-7- Defendant further argues that he was denied a fair trial, as g uaranteed by both state and federal constitution, when the prosecution failed to protect pe titioner’s due process rights and that his counsel abandoned their duty to protect his constituti onal rights. 5 The denial of defendant’s constitutional rights and the abandonment of counse l presumably arose out of prosecutorial misconduct and ine ffective assistance of counsel with respect to his bind over and circuit court arraignment. However, because we find that the c ircuit court did have jurisdiction to hear the case and that defendant waived his right to arraign ment, we find that the prosecutor did not commit misconduct by allowing the trial to proceed. Ad ditionally, defense counsel was not ineffective and did not abandon his duty as counsel because counsel is not required to take a meritless position or make a futile objection. People v Thomas , 260 Mich App 450, 457; 678 NW2d 631 (2004). Therefore, this claim is without merit.

Defendant’s final argument in his Standard 4 Brief concerns th e ineffective assistance of appellate counsel. Although defendant states that this issue i s raised for preservation purposes,
the record is sufficient to decide the issue on the merits in t his appeal. Defendant argues that appellate counsel “may have ope ned a door to juri sdiction that otherwise by law di d not exist” by raising two issues on appeal. D efendant further argues that ap pellate counsel may not have raised all of the issues present and presumably failed to raise “Dead Bang Winners” on appeal. However, we have found all claims raised by defendant and his c ounsel to be without merit. Appellate counsel is not required to raise a meritless argument on appeal. People v Reed , 449 Mich 375, 402; 535 NW2d 496 (1995). Moreover, appellate counse l’s failure to raise the jurisdictional challenges was “insignificant” given that defend ant presented the same claims to
this Court in his Standard 4 Brief. People v Pratt , 254 Mich App 425, 430-431; 656 NW2d 866 (2002). Therefore, appellate c ounsel was not ineffective.

IV. DEFENDANT’S SUPPLEMEN TAL STANDARD 4 BRIEF

In defendant’s supplemental Standard 4 Brief, he again raises several jurisdictional challenges and all are without m erit. First, defendant argues that the complaint and supporting affidavit were not notarized; thus, they should be considered v oid. However, the complaint and supporting affidavit in the lower court record are notarized an d further indicate that they were “subscribed and sworn” before a judicial officer pursuant to MC R 6.101(B). Defendant further argues that the affidavit did notcontain facts alleging or amo unting to probable cause. However, contrary to defendant’s argument that the felony warrant was no t based on any facts, the felony complaint contains factual allega tions regarding the offenses, and the affidavit contains facts “from the complainant or other s” that supported issuance of the warrant. See MCR 6.102(B) (indicating that probable cause for the arrest warrant may be b ased on “factual allegations in the complaint [and] affidavits from the complainant or others”). A ccordingly, defendant’s argument that the complaint and affidavit were defective in this regard is without merit.

Next, defendant argues that the felony complaint and warrant w ere defective because they were authorized by an assistant prosecutor rather than the prosecuting attorney. However,

5 In defendant’s Standard 4 Brief, these two issues were raised separately but can effectively be considered together.-8- under MCL 49.42, an assistant prosecutor is permitted to “perfo rm any and all duties pertaining to the office of the prosecuting attorney at such time or times as he may be required so to do by the prosecuting attorney and during the absence or disability f rom any cause of the prosecuting attorney . . . ” Thus, it was not e rror for an assistant prose cutor to authorize these documents.

Next, defendant argues that the trial court’s jurisdiction was improper because the felony complaint did not contain any information supporting an indepen dent judgment that probable cause existed for the felony warrant to be issued. MCL 6.101(A ) governs the requirements of a felony complaint: “The complaint must include the substance of the accusation against the accused and the name and statutory citation of the offense.” H ere, the felony complaint meets these requirements by outlining the substance of the accusation and the corresponding statutes for each of the charged offenses . For instance, with respect t o the first armed r obbery charge, the complaint states that defendant “did, in the course of committi ng a larceny of a Virgin Cellular phone, use force or violence against a person present, Naeisha [sic] Dudley, and in the course of that conduct possessed a pistol, a dangerous weapon; contrary t o MCL 750.529.”

Moreover, the factual allegations in the complaint, combined w ith the statements from the complainant set forth in the accompanying affidavit, were s ufficient for a finding of probable cause. Under MCR 6.102(B), ‘[a] finding of probable cause may be based on hearsay evidence and rely on factual allegations in the complaint, affidavits fr om the complainant or others, the testimony of a sworn witness adequately preserved to permit rev iew, or any combination of these sources.” The allegations in the complaint combined with the a ccompanying affidavit were sufficient. The affidavit set forth in greater detail the events of October 14, 2013, as a description of the charged offenses. Accordingly, defendant’s argument to the contrary is
without merit.

Next, defendant argues that the felony complaint and warrant w ere defective because they did not identify the times or places the charged offenses occurred. Defendant provides no authority supporting that such information is required on a fel ony complaint or warrant. The complaint and warrant in this case complied with the requiremen ts set forth by court rule. See MCR 6.101(A) (governing felony complaints); MCR 6.102(C) (gover ning felony warrants). 6 Therefore, defendant’s ar gument is without merit.

Defendant’s last jurisdictional argument is that the circuit c ourt never assumed jurisdiction because there was not a magistrate’s return to cir cuit court. Under MCL 767.40,

6 Under MCR 6.102(C), a warrant must:

(1) contain the accused’s name , if known, or an identifying nam e or description

(2) describe the offense charged in the complaint

(3) command a peace officer or other person authorized by law t o arrest and bring the accused before a judicial officer of the judicial district in which the offense allegedly was committed or some other designated court, and

(4) be signed by the c ourt. [MCR 6.102(C).]-9- “[a]ll informations shall be filed in the court having jurisdic tion of the offense specified in the information after the proper return is filed by the examining m agistrate and by the prosecuting attorney of the county as informant.” A circuit court obtains personal jurisdiction over a defendant when a return is filed in the circuit court by the di strict court before which the defendant waived preliminary examination or was examined. People v Goecke , 457 Mich 442, 458; 579 NW2d 868 (1998). Here, a preliminary examination was held on October 31, 2013, at the conclusion of which the district court signed a bind over d ocument, officially binding defendant over on the charges in the complaint. The circuit co urt received the document for filing on the same day. Thereafte r, the prosecutor filed a fel ony information. Given that the record contained the felony complaint, warrant, bind over docum ent, and felony information,
there is no error evident in the procedure bi nding defendant ov er to circuit court.

Nevertheless, even if an error could be found, a defendant may waive defects in personal jurisdiction. People v Richards , 205 Mich App 438, 444; 527 NW2d 823 (1994). In this case, defendant signed a document following his preliminary examinati on in which he waived arraignment and agreed to appear at future hearings scheduled i n the circuit court. Defendant subsequently appeared in court an d was convicted of the charged offenses. Therefore, any potential defects in personal ju risdiction were waived. See People v Kiyoshk , 493 Mich 923, 924; 825 NW2d 56 (2013). 7

Next, defendant argues that the prosecutor committed misconduc t and fraud in several respects. Defendant raises thes e arguments for the first time on appeal; thus, our review is limited to plain error affecting substantial rights. Carines , 460 Mich at 763-764. Defendant first argues that the prosecutor committed fraud by requesting two ad journments to wait for DNA evidence that was already in hi s possession. Defendant’s argum ent misconstrues the record. The DNA analyst, Kate Herrema, testified that she began her analysis on November 26, 2013. The prosecutor requested an adjournment on December 20, 2013, based on information that there had been a backlog at the crime lab, and again on January 3, 2014, based on Herrema’s indication that the DNA testing needed more time to be completed. Thus, c ontrary to defendant’s argument, there is nothing in the record supporting that Herrem a’s DNA analysis was completed before these hearings, and defendant has not demonstrated that the prosecutor fraudulently or deceptively requested the adjournments.

Next, defendant argues that the prosecutor violated the rule o f completeness in MRE 106 by only offering into evidence a portion of a telephone call th at defendant made from jail. Under MRE 106, “[w]hen a writing or recorded statement or part thereo f is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered con temporaneously with it.” Here, although only part of a recorded telephone conversation was adm itted in evidence, defendant

7 Defendant also argues prosecuto rial misconduct and ineffective assistance of counsel with respect to these alleged jurisdictional defects. However, beca use we find that jurisdiction was proper, defendant’s claims of prosecutorial misconduct and inef fective assistance of counsel on these grounds are without merit.-10- never requested admission of the recording in its entirety. He fails to make any showing as to why the remainder of the tele phone call should have been “consi dered contemporaneously” with what was played for the jury. See MRE 106. Therefore, there i s no basis for finding that the recording was erroneously admitted into evidence and that the p rosecutor committed misconduct by offering only part of the telephone call.

Defendant also argues that the prosecutor committed misconduct by “reneging” on a plea deal that would have given defendant immunity from the charged crimes. Again, defendant’s argument misconstrues the record. The prosecutor informed the trial court that an immunity offer existed, but it did not concern this case. Rather, defen dant was offered immunity—if he agreed to speak with police—from any crimes that were discovere d as a result of those conversations. The prosecutor stated during trial that “it was very clear when I made that immunity offer to him, [that] it had nothing to do with this ca se[;] he understood fully, that these charges were going to survive any thing he said to the police. The immunity was for crimes that the police might find out as a result of him talking to them, a nd . . . he would get immunity on those charges, unless there wa s murder, violence or guns involv ed.” Therefore, there is no evidence in record that the prosecutor committed misconduct with respect to the i mmunity offer.

Defendant argues that defense counsel was ineffective for fail ing to challenge the prosecutor’s above-mentioned condu ct. However, as discussed indetail above, any challenges to the prosecutor’s conduct on thes e grounds would have been futil e. Thomas , 260 Mich App 457. Therefore, defense counse l was not ineffective.

Finally, defendant makes a claim concerning MCR 6.500, which g overns post-appellate relief. However, because this is a direct appeal of defendant’ s convictions and sentence, we find MCR 6.500 to be inapplicable and def endant’s argument regarding this rule to be without merit.

V. SENTENCING Defendant argues that the trial court violated his right under the Sixth Amendment, US Const Am VI, to have each eleme nt of his charged offenses decid ed by an impartial jury, because the trial court scored several of his offense variables (OVs) o n the basis of facts found by the court rather than by the jury. "A Sixth Amendment challenge pr esents a question of
constitutional law that this Court reviews de novo." People v Lockridge , 498 Mich 358, 373; 870 NW2d 502 (2015). We likewise review the interpretation and app lication of guidelines statutes de novo as a question of law. People v Francisco , 474 Mich 82, 85; 711 NW2d 44 (2006). Defendant correctly notes that the trial court commits plain er ror that could mandate resentencing by calculating an OV score "using facts beyond tho se found by the jury or admitted by the defendant" if that miscalculation "would change the appl icable guidelines minimum sentence range." Lockridge , 498 Mich at 399. However, defendant concedes that this issue is unpreserved. Unpreserved constitutional errors warrant reversa l only if the defendant can "show reversible prejudice, actual innocence, or that the [constituti onal] error 'seriously affect [ed] the fairness, integrity or public reputation' of the trial." People v Pipes , 475 Mich 267, 270; 715 NW2d 290 (2006), quoting People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). Defendant actually di d properly object to the scoring of OV 19, a situation not contemplated by Lockridge . See Lockridge , 498 Mich at 394. We therefore review defendant's challenge t o OV 19 less deferentially: questions of law are reviewed de novo, Francisco , 474 Mich at 85, and the trial court's findings of fact are reviewed for clear error, People v Jones , 494 Mich 880, 880-881;-11- 834 NW2d 485 (2013), subject to the requirement pursuant to Lockridge that the trial court must determine sentencing variables by reference to facts found by the jury or admitted by the
defendant. The trial court assessed fifteen points under OV 1, which requ ires that “[a] firearm was pointed at or towards a victim . . . ” MCL 777.31(1)(c). The trial court also assessed five points under OV-2, which requires that an “offender possessed or used a pistol, rifle, shotgun, or knife or other cutting or stabbing weapon.” MCL 777.32(1)(d). Defen dant argues that the facts supporting these scores were not f acts necessary to prove the c onvicted offenses. We disagree. Defendant was convicted of Armed Robbery under MCL 750.529, whi ch requires a person to possess “a dangerous weapon.” During trial, multiple witnesses testified that defendant pointed a gun at them or other victims. Na’eisha testified that the gun was pointed at her. She also testified that the gun was point ed at Batty and Hockett. Furth er, the neighbor testified that the gun was pointed at his house when defendant exited the home. F urthermore, the record does not indicate that any other weapon, besides a handgun, was identifi ed during trial. Therefore, the record supports that the jury f ound that defendant had pointed a handgun at the victims during the commission of the crimes charged. Defendant was also convicted of felony firearm. MCL 750.227b( 1). A person is guilty of felony firearm when they carry or possess a firearm while co mmitting or attempting to commit a felony. MCL 750.227b(1). By definition, defendant mu st have been found to be carrying a firearm during the commission of the crimes charged. Therefore, it is clear that the jury found that defendant had a firearm. The trial court did n ot error in assessing defendant fifteen points under OV 1 and f ive points under OV 2. Defendant further argues that the trial court erred by assessi ng 1 point under OV 12. We disagree. A score of one point under OV 12 indicates that “one contemporaneous felonious criminal act involving any other crime was committed.” MCL 777 .42(1)(f). In order to be a contemporaneous act, it must have “occurred within 24 hours of the sentencing offense and the criminal act [did] not result[] and will not result in a separate conviction.” MCL 777.42(2)(a). Lockridge clearly states that plain error does not occur when defendant admits the facts that are used for scoring under the sentencing guidelines. Id . at 394-395. Defendant clearly admitted during trial that he possessed the heroin. Further, he admitte d to possessing marijuana. Therefore, the trial court did not commit clear error by assess ing one point under OV 12. In fact, according to defendant’s own testimony, he may have committed m ultiple drug offenses and possibly could have received ahigher score under OV 12. Defendant also argues that the trial court erred when it asses sed ten points under OV 19. We agree. Because this scoring issue is preserved, we review the lower court’s factual findings for clear error. To receive a score of ten points under OV 19, defendant must have interfered “with or attempted to interfere w ith the administration of just ice.” MCL 777.49(c). Defendant argues that this fact was never found by the jury an d was not germane to the
verdict of the convicted crimes. We agree. The trial court ba sed its assessment of this variable on the testimony that defendant attempted to pay Na’eisha $200 and attempted to persuade another witness before trial. However, these facts were never proven by the jury. None of the convicted offenses required a showing of obstruction. Defendan t did admit during trial that he offered to pay $200 to Na’eisha; however, he claimed that he di d this in an effort to pay for the stolen marijuana. Furthermore , defendant denied any obstructio n during the sentencing hearing when he objected to the scoring of this variable. Therefore, t his fact was not f ound by the jury or admitted to by the defendant.-12- In Lockridge , the Supreme Court held that facts found by a preponderance of the evidence cannot be used to mandatorily increase defendant’s min imum sentence. Id at 399. Therefore, because the trial court in this case relied upon fac ts not found by the jury or admitted by the defendant, the trial court clearly erred pursuant to Lockridge . Furthermore, the possible reduction of ten points may have reduced defendant’s minimum se ntencing guideline range from 171-570 months to 135-450 months. Therefore, this case is rema nded in accordance with United States v Crosby

, 397 F.3d 103, 117–118 (C.A.2, 2005) and Lockridge , 498 Mich at 399 (2015)

. The trial court must determine “ whether the court would have im posed the same sentence absent
the unconstitutional constraint on its discretion. If the tria l court determines that it would not have imposed the same sentence but for the constraint, it must resentence the defendant.” Id at
399.

VI. CONCLUSION

In conclusion, we affirm defend ant's convictions; however, bec ause defendant's sentencing guidelines range was unconstitutionally constrained by a violation of the Sixth Amendment, we remand this case for further inquiry in accordanc e with the procedure outlined
in Lockridge , 498 Mich at 399 and Crosby , 397 F. 3d at 117-118. We do not r etain jurisdiction.

/s/ Jane E. Markey
/s/ Donald S. Owens /s/ Amy Ronayne Krause