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

inal publication in the Michigan Appeals Reports.

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

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

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee, UNPUBLISHED December 3, 2020

V No. 348957
Genesee Circuit Court

ROBERT BERNARD COLLINS, LC No. 18

- 042889

- FC

Defendant

- Appellant.

Before: R EDFORD

, P .J., and R IORDAN and T UKEL , JJ.

P ER C URIAM

.

D efendant appeals by right his convictions by a jury of unlawful imprisonment, MCL 750.349b, assault with intent to do great bodily harm less than murder, MCL 750.84 , attempted assault with intent to do great bodily harm less than murder, MCL 750.92(2)

, felonious a ssault

, MCL 750.82 , domestic violence, MCL 7 50.81(2), and two counts of first

- degree criminal sexual conduct (CSC

- I) while armed with a weapon

, MCL 750.520b(1)(e) . The trial court sentenced
defendant as a fourth

- offense habitual offender, MCL 769.12, to concurrent prison terms of 25 to 40 years eac h for the CSC

- I, unlawful imprisonment, and assault with intent to do great bodily harm less than murder convictions, 140 to 240 months for the attempted assault conviction, 100 to 180 months for the felonious assault conviction, and 93 days for the domest ic violence convictions.
We affirm.

I. FACTS

T he complaining witness testified at defendant’s preliminary examination that, after some marital quarreling, defendant struck her in the face, threatened and cut her with a box cutter, choked her, then wrapp ed an extension cord around her neck, and issued death threats. When the complainant attempted to flee but fell down , defendant forced her back into the bedroom and sexually assaulted her . Hours later, after defendant fell asleep, the complainant left home and reported to a hospital emergency room.

In jailhouse phone calls between defendant and the complainant, recordings of which were played for the jury, defendant variously attempted to cajole the complain ant into agreeing that the y had consensual sex , attempted to persuade her not to trust the prosecution, and pressure d her not- 2

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to testify at his trial. Despite the prosecution’s efforts to have the complainant come from Illinois and testify at trial, just before trial she refused to do so.

II. USE OF PRELIMIN ARY EXAMINATION TEST IMONY

Defendant first argues that the trial court erred by declaring the complaining witness
unavailable for trial and allowing the prosecution to introduce her testimony from the preliminary
examination into the record. We disagree.

We review a trial court ’ s evidentiary decisions for an abuse of discretion. People v
Martzke , 251 Mich App 282, 286; 651 NW2d 490 (2002). “ The decision whether to admit
evidence lies within the tria l court ’ s sound discretion and will not be disturbed absent an abuse of that discretionary authority. ” Id . (citation omitted). This includes a court ’ s determination whether a witness is unavailable for purposes of relying on that witness ’ s earlier testim ony. People v Bean

, 457 Mich 677, 684; 580 NW2d 390 (1998). A trial court abuses its discretion when it s decision
falls outside the range of reasonable and principled outcomes. People v Kahley , 277 Mich App 182, 184; 744 NW2d 194 (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 not admissible ” except as provided by the rules of evidence. MRE 802. The United States and Michigan Constitutions both guarantee criminal defendants the right to confront adverse
witnesses. US Const, Am VI; Const 1963, art 1, § 20. Respect for this right is one of the bases for the general rule against admitting hea rsay into evidence. See People v Tanner , 222 Mich App 626, 632; 564 NW2d 197 (1997).

O ne of the exceptions to the general prohibition against hearsay provides that when a declarant is unavailable to testify at trial, that declarant ’ s testimony given as a witness at an earlier hearing is admissible if the party against whom it is offered had an opportunity, and similar incentive, to examine or cross

- examine that witness on that occasion. MRE 804(b)(1). 1 Another hearsay exception applies to “ [a] statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did

, procure the unavailability of the declarant
as a witness. ” MRE 804(b)(6).

A . DUE DILIGENCE

For purposes of MRE 804

, “ availability ” includes situations i n which the witness “ is absent from the hearing and the proponent of a statement has been unable to procure the declarant ’ s attendance

. . . by process or other reasonable means, and in a criminal case, due diligence is
shown. ” MRE 804(a)(5). The test fo r due diligence is whether the proponent of the testimony
made a “ diligent good

- faith effort ” to produce the witness for trial. Bean , 457 Mich at 684. “ The test is one of reasonableness and depends on the facts and circumstances of each case, i.e., whether

1 See also MCL 768.26 (“[t]estimony taken at an examination, preliminary hearing, or at a former

trial of the case

. . . may be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial”).- 3

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diligent good

- faith efforts were made to procure the testimony, not whether more stringent efforts would have produced it. ” Id.

In this case, the tri al court hel d a hearing to decide the issue of due diligence . The prosecution introduced evidence that the complainant acknowledged receipt of a subpoena to appear at trial. Testimony of witnesses indicated that the complainant had relocated to Illinois, and that the prosecution and police had remained in touch with her as trial approached, including by way of arranging for hotel accommodations for her, but just before trial she declared her unwillingness to participate. T estimony further indicated that the police and prosecution responded with efforts to locate her, both in Michigan and Illinois, including with help from the police in Illinois to check on the complainant ’ s well

- being.

The police officer in charge of the case testified that the complaina nt telephoned him the evening before, and “ stated that she was upset that the police came out there, ” appeared “ nervous, very upset, and stated she was staying with a sister, wouldn ’ t tell you who, and that she would not be coming. ” The officer added that the complainant indicated that she had been unable to sleep and was otherwise traumatized since being informed of the trial date, but that t he officer nonetheless had tried to call her again that morning, and also contacted a local hospital and jail to

se e if the complainant was at either institution, but to no avail.

The trial court concluded that unavailability had been established under MRE 804(a)(5) for purposes of admitting the complainant ’ s preliminary examination testimony under MRE 804(b)(1) and ( 6). T he record supports the trial court ’ s decision to recognize the complainant as unavailable
for trial. Therefore, the trial court did not abuse its discretion.

Michigan law does not require the prosecution to seek to compel the complainant ’ s

presence by involving the s tate of Illinois for assistance. Defendant acknowledges that our Supreme Court, in People v Serra , 301 Mich 124; 3 NW2d 35 (1942), held that the prosecution is not obliged to apply to the courts of another state for process to compel production of a witness

. Defendant

, however, argues that the prosecution had the option to use the procedures set forth in
the uniform act to secure the attendance of witnesses from other states in criminal proceedings,
MCL 767.91 et seq. A lthoug h defense counsel initially requested a material witness warrant, over the prosecuting attorney ’ s protestation that “ [t]here would have to be a rendition proceeding and things of that nature

, ” and the trial court in fact expressed a willingness to consider issuing one, the record does not indicate that the defense persisted with attempts to obtain compulsory service of process after the complainant ’ s preliminary examination testimony was read into the record,
and thus does not indicate that the trial court actually made a decision adverse to the defense in the

matter. For these reasons, we conclude that defendant has failed to show that the trial court erred by rul ing that the complainant was unavailable under MRE 804(a)(5).

B. OPPORTUNITY AND INCENTIVE TO CROSS

- EXAMINE

Defendant acknowledges that the preliminary examination was a “ hearing of the same or a different proceeding ” for purposes of MRE 804(b)(1), but argues that defense counsel at the preliminary examination did not fully share in the opportunities or incentives to cross

- examine the complainant that would have been present had the complainant appeared at trial. We d isagree

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Defendant points out that preliminary examinations and criminal trials involve different evidentiary standards, and cites authority for the proposition that an earlier hearing does not satisfy MRE 804(b)(1) if the two proceedings concerned substa ntially different issues. Defendant further

asserts that defense counsel at a preliminary examination is more interested in furthering discovery than in challenging the reliability of prosecution witness es

. D efendant , however, has not identif ied

any spec ific aspects of the cross

- examination of the complainant at the preliminary examination
in this case that indicate that defense counsel less than vigorous ly cross

- examined the complainant to impeach her credibility.

Defendant further asserts that defen se counsel at the preliminary exam ination did not have
the benefit of cross

- examining the complainant “ with regard to new information and strategies developed between the exam and trial

. ” Such argument might indeed be compelling if significant
new informatio n or strategic opportunities came to light between the two proceedings. T he
defense , however, expressed no such concern and defendant on appeal likewise does not identify any such new information or opportunity to support his contention

.

Furth er, defendan t offers no argument on appeal to rebut the trial court ’ s conclusion that the challenged preliminary examination testimony was also admissible under MRE 804(b)(6) because defendant, by way of his phone calls to the complainant from jail, had attempted to p rocure that witness ’ s unavailability. Defendant complains generally that use of the preliminary examination testimony denied him his constitutional right to confront adverse witnesses, but MRE 804(b)(1) specifically conditions use of earlier testimony on the adverse party ’ s having had proper opportunities and incentives to cross

- examine when that testimony was given , and MRE 804(b)(6) implicitly recognizes that a defendant whose wrongdoing prevented a witness from appearing thereby forfeits the right to co nfront that witness. Therefore, d efendant has brought no constitutional infirmity to light. D efendant has failed to show that the trial court abused its
discretion by declaring the complainant unavailable for trial, or by allowing use of her testimony

fr om the preliminary examination.

III. OTHER BAD ACTS

Defendant next argues that the trial court abused its discretion by admitting evidence that
defendant committed a violent act of criminal sexual conduct in 1990. We disagree.

W e review a trial court ’ s evidentiary decisions for an abuse of discretion. Martzke , 251 Mich App at 286. This includes a trial court ’ s decision whether to admit evidence of prior bad

acts. Kahley , 277 Mich App at 184.

MRE 404(b)(1) provid es that evidence of other bad acts is not admissible to prove a

person ’ s character to show behavior consistent with other wrongs, but such uncharged conduct may be admissible for other purposes, “ such as proof of motive, opportunity, intent, preparation, scheme, plan

, or system in doing an ac t, knowledge, identity, or absence of mistake or accident
when the same is material

. . . . ” In this case, the prosecution filed a notice of intent 2 to present evidence under MRE 404(b) that defendant committed a n earlier sexual assault and defense

2 See MRE 404(b)(2)

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counse l filed objections

. The trial court heard arguments on the issue in a pretrial hearing, then on the first day of trial rul ed that the evidence would be admitted. The following day, the prosecut ion
stated that it had provided defense counsel with a death certificate for the earlier complainant, ST,
and asked the court to declare her unavailable and to allow use of that witness ’ s preliminary examination testimony. The transcript of ST’s preliminary examination testimony was ultimately
admitted by stipulation of the parties

.

In that earlier proceeding, ST testified that defendant, whom she knew only as someone
who lived across the street who had once asked to borrow her lawnmower, appeared on her porch

at 4:00 a.m. one morning , told her to “ shut up ” when she asked through a closed window what he was doing, then broke her window. ST ran to her kitchen and called the police, but defendant

came to a side door near the kitchen, and “ started breaking the glass out of that, ” then reached through that ope ning to begin unlocking the door, upon which she hung up her phone and ran upstairs and grabbed her rifle. ST testified that the police called back, and from her upstairs bedroom phone, while continuing to hear the sounds of breaking glass, she reported t hat a man was breaking in. When things seemed to have quieted down, ST entered her hallway, where she
saw defendant “ more or less crawlin ’ up the stairs. ” ST testified that she attempted to raise her rifle, but defendant pulled it away and threw it on th e floor, then pushed her into her bedroom and started forcibly disrobing her . Over her protestations, defendant forced her onto the bed, twice struck her in the face, pulled his pants down, forced her to perform fellatio on him, then forced her
to endure sexual intercourse

. The police then arrived and apprehended defendant

.

Defendant argues that this testimony described events too dissimilar to what the instant complainant alleged to be of probative value and that it was extremely prejudicial to him.

Al though the trial court was presented with a difficult decision

, we cannot conclude that the trial court abused its discretion by admitting the evidence. Evidence of prior bad acts under MRE 404(b) is admissible if it is offered for a proper purpose, if it is relevant, and if its probative value is not substantially outweighed by unfair prejudice. People v Crawford , 458 Mich 376, 385; 582 NW2d 785 (1998). A proper purpose is one other than establis hing the defendant ’ s character to show his propensity to commit the offense. People v VanderVliet , 444 Mich 52, 74 ; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994).

In People v Mardlin , 487 Mich 609, 615

- 616 ; 790 NW2d 607 (2010) (citations omitted),

ou r Supreme Court explained:

To admit evidence under MRE 404(b), the prosecutor must first establish that the evidence is logically relevant to a material fact in the case, as required by MRE 401 and MRE 402, and is not simply evidence of the defendant ’ s ch aracter or relevant to his propensity to act in conformance with his character. The prosecution thus bears an initial burden to show that the proffered evidence is relevant to a proper purpose under the nonexclusive list in MRE 404(b)(1) or is otherwise p robative of a fact other than the defendant ’ s character or criminal propensity. Evidence relevant to a noncharacter purpose is admissible under MRE 404(b) even if it also reflects on a defendant ’ s character. Evidence is inadmissible
under this rule only if it is relevant solely to the defendant ’ s character or criminal propensity. Stated another way, the rule is not exclusionary, but is inclusionary, because it provides a nonexhaustive list of reasons to properly admit evidence that- 6

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may nonetheless also g ive rise to an inference about the defendant ’ s character. Any undue prejudice that arises because the evidence also unavoidably reflects the
defendant ’ s character is then considered under the MRE 403 balancing test, which permits the court to exclude rele vant evidence if its “ probative value is substantially outweighed by the danger of unfair prejudice

. . . .” MRE 403. Finally, upon request, the trial court may provide a limiting instruction to the jury under MRE 105 to specify that the jury may consider the evidence only for proper, noncharacter

purposes.

In this case, the trial court provided a lengthy explanation fo r its decision to admit the evidence, and in the process express ed serious discomfort with how admitting such evidence for a proper purpose might nonetheless suggest propensity. The trial court analyzed the evidence,
considered defendant’s claim that the sex had been consensual, the material issues of defendant’s motive, intent, state of mind, and conduct during the commission of the offenses, the victim’s state of mind, and defendant’s phone calls to the victim, and compared th is case with the evidence of the prior bad act. The trial court noted that factual differences existed between the two incidents but found that evidence of the prior bad act had relevance to the issues of motive and intent. The trial court then considered whether the probative valu e of such evidence would be substantially outweighed by unfair prejudice

. It concluded that it would not.

On appeal, d efendant argues that S T ’ s account of what defendant did to her was dissimilar

in almost every respect to the allegations underlying the instant case. The record reflects that the trial court acknowledged the differences between the two cases but also recogniz ed as a key commonality that both complainants alleged that defendant persisted with sexual aggression despite their protestations a nd inflict ed violen t blow s to the victims’ head s . Although defense counsel did not expressly invoke the defense of consent, she did acknowledge that sexual relations were part of the marital relationship, and, as the trial court noted, the jailhouse telep hone calls presented the theory of consent. Defendant protests that “ [a]ny motivation or intent regarding a violent sexual assault of a stranger bears no relationship to anything at issue in this case

, ” but does not follow that assertion with any explanat ion why differing degrees of familiarity with the victims militates against recognizing the similarities in an assailant ’ s conduct during the commission of
the same or similar bad acts . Defendant further argues that, according to the instant complainant, by the time the sexual relations took place, defendant ’ s “ rage was winding down and she believed that he felt sorry for her

. ” The record, however, reflects that the complainant in this case also
testified that she did not resist defendant’s sexual advances and assaults out of continuing fear induced by defendant ’ s severe aggression and threats

. Although the evidence established that the
offenses in this case occurred in relation to a domestic quarrel between hu sband and wife , such
facts do not negate the similarities or preclude admission of the evidence to establish motive, intent, or system of doing an act.

The trial court indicated that the balancing of the probative value of the challenged evidence against its potential for unfair prejudice presented a close question. We agree , and thus
bear in mind that a court ’ s decision on a close evidentiary question ordinarily cannot constitute an abuse of discretion. People v Sabin (After Remand) , 463 Mich 43, 67 ; 61 4 NW2d 888 (2000) ; People v Bahoda , 448 Mich 261, 289; 531 NW2d 659 (1995).- 7

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Defendant also argues that reliance on ST ’ s testimony violated his constitutional right to confront adverse witnesses, see US Const, Am VI; Const 1963, art 1, § 20 , on the ground that “ [i]t is unknown whether the attorney representing [defendant] during the preliminary exam ‘ had an opportunity and similar motive to develop the testimony by direct, cross, or redirect
examination. ’ ” Defendant , however, has not develop ed this argument further, except by referring to his similar argument in connection with admission of the complainant’s preliminary
examination testimony which lacks merit . For the same reasons set forth previously we find no
merit to defendant ’ s argument i n this regard

.

Further

, defendant failed to preserve appellate objections

. T he record

, in fact

, indicates
that the parties stipulated to th e admission of the transcript of ST’s testimony

. Defense counsel ’ s agreement on the record to that action taken be low constitutes an affirmative waiver of objections extinguishing his claim of error on appeal . See People v Carter

, 462 Mich 206, 214

- 216; 612
NW2d 144 (2000) (affirmative waiver extinguishes appellate objections) ; People v Barclay , 208 Mich App 670, 673 ; 528 NW2d 842 (1995) (a criminal defendant may not assign error on appeal to something the defendant ’ s lawyer deemed proper at trial )

. For these reasons, we reject
defendant ’ s challenges to the use of ST ’ s testimony regarding the 1990 incident.

IV

. STATEMENTS RELATING TO MEDICAL DIAGNOSIS OR TREATMENT

At trial, defense counsel expressly declined to object to admission of an exhibit containing medical records from the complainant ’ s emergency room visit and also did not object when a physician ’ s assis tant read for the jury the notes she contributed to that exhibit that describe d what the complainant told her . Similarly, defense counsel expressly declined to object to admission of an exhibit consisting of the report resulting from the complainant ’ s sex ual assault examination, and also did not object when the nurse and head of a sexual assault response team who performed that examination and prepared the report read for the jury statements th erein attributed to the complainant. Both recitations substant ially confirmed what the complainant had stated in her preliminary examination testimony with minor variations.

On appeal, defendant asserts that the testimony from those medical practitioners did not
constitute admissible hearsay under the exception set forth in MRE 803(4) for “ [s]tatements made for purposes of medical treatment or medical diagnosis in connection with treatment and describing medical history, of past or present symptoms, pain, or sensations, or the inception or general character of the ca use or external source thereof insofar as reasonably necessary to such diagnosis and treatment. ” Defendant also argues that defense counsel provided ineffective
assistance for failing to object in th is regard

.

Defendant relies on Merrow v Bofferding , 458 Mich 617, 630; 581 NW2d 696 (1998)

, where the Supreme Court generally reaffirmed the validity of the hearsay exception for medical records, but held that “ the statement in the medical record ” that the plaintiff “ had a fight with his girlfriend ” before su ffering the injury for which he sought treatment “ was not reasonably necessary for diagnosis and treatment and, thus, falls outside the rationale underlying the exception. ” Similarly, this Court in People v DePlanche , 183 Mich App 685, 690; 455 NW2d 395 (1990), held
that “ the identity of an assailant cannot be characterized as the ‘ general cause ’ of an injury, and such testimony was not of the sort contemplated by the drafters of MRE 803(4). ” Accordingly,
had defense counsel wished to narrow the scope of the two medical witnesses ’ testimony to avoid- 8

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naming defendant as the assailant, or describing the nature or causes of domestic tensions other than actual violence suffered, counsel may have had some success. 3 But be cause the challenged
evidence came from medical records, and the two witnesses each suggested that a broad scope of background information had use for medical purposes, the trial court did not commit plain error for not having sua sponte e nforced a narrowe r application of the operative hearsay exception. 4

Further, defense counsel apparently chose to approach the defense in a way that comported with the now challenged testimony. A defendant pressing a claim of ineffective assistance of
counsel must overcom e a strong presumption that counsel ’ s tactics were matters of sound trial
strategy. People v Henry , 239 Mich App 140, 146; 607 NW2d 767 (1999). “ This Court does not
second

- guess counsel on matters of trial strategy, nor does it assess counsel ’ s competenc e with the benefit of hindsight. ” People v Russell , 297 Mich App 707, 716; 825 NW2d 623 (2012). “ That in hindsight a strategy was not completely successful does not render it unreasonable and does not
render counsel ’ s assistance ineffective. ” People v T rakhtenberg , 493 Mich 38, 63; 826 NW2d 136 (2012).

No issue of mistaken identity existed here, and defense counsel concede d in closing
argument that domestic violence took place . Defense counsel stated: “ Obviously something happened. He admitted to putt ing his hands on her. Find him guilty of domestic violence. He
said so and I ’ m not going to make an excuse for that because it ’ s wrong. Everything else there ’ s a reasonable doubt about

. ” I t is not ineffective assistance of counsel to concede lesser crimes in hopes that the display of candor will help avoid a guilty verdict on greater ones

, People v Wise

, 134 Mich App 82, 98; 351 NW2d 255 (1984 ) , provided that the defendant has not expressly instructed defense counsel to not concede guilt as to any count. See McCoy v Louisiana , ___ US ___, ___; 138 S Ct 1500, 1507

- 1512; 200 L Ed 2d 821 (2018). There is nothing in the record that defendant expressly instructed his counsel to not proceed as h e did.

Further, defense counsel did not expressly assert the defense of consent, but rather emphasized reasons to doubt the complainant ’ s credibility. That the complainant provided nearly
identical accounts of the key events in question at the preliminary examination and to the two

3 We note that because the challenged testimony consisted of reading from medical documents that were themselves admitted into evidence, any such endeavor would logically have included moving for redaction of those documents in kind. Defendant’s appellate objections, however

, do not include making issue of the admission of those documentary exhibits.

4 Where a hearsay declarant’s statement is testimonial in character, and that declarant does not appear at trial or is otherwise not available to testify, and where the defense has had no opportunity

to cross

- examine that declarant, those testimonial statements are not admissible even if they fall under an established exception to the general hearsay prohibition. Crawford v Washington , 541 US 36, 53

- 54, 68; 124 S Ct 1354; 158 L Ed 2d 177 (2004). In this case, the prosecution argu es that the complainant’s statements to the medical providers were not testimonial in nature, but defendant on appeal does not assert that those statements were testimonial. Because de fendant raised no objection regarding testimonial hearsay concerning these two witnesses below, and has not raised any such issue on appeal, defendant has waived the issue and we need not consider it.- 9

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witnesses who testified at trial did not undercut that defense posture, but in fact comported with
the defense theory that the complainant had manufactured her allegations or otherwise consistently mischaracterized what took pla ce. T o the extent that the various accounts did not align perfectly, defense counsel took advantage of the opportunity to highlight those irregularities during cross

examination. Further, pursuing that strategy involved little risk, because, as defendant points out, the challenged testimony from the two medical witnesses was substantially cumulative to the complainant ’ s own testimony , the earlier presentation of which minimized the potential for unfair prejudice resulting from the recitation of her simila r accounts as told to two others. See People v
McRunels , 237 Mich App 168, 185; 603 NW2d 95 (1999) (c ompetent testimony that is duplicative of improperly admitted testimony can militate against the conclusion that a party was harmed by
the error ). Accord ingly

, we reject defendant ’ s challenges to the testimony of the two medical
witnesses

.

V

. INSTRUCTION ON FLIGH T

Defendant argues that the trial court erred by providing the jury with an instruction on a criminal suspect ’ s fleeing or hiding. 5 We disagree.

To the extent that instructional issues involve questions of law , appellate review is de novo,
but we review for an abuse of discretion a trial court ’ s determination whether an instruction is applicable to the facts of the case

. People v G illis , 474 Mich 105, 113; 712 NW2d 419 (2006).
Instructions should cover all material issues and theories that have evidentiary support. People v
Daniel , 207 Mich App 47, 53; 523 NW2d 830 (1994). “ Conversely, an instruction that is without evidentiary s upport should not be given. ” People v Wess , 235 Mich App 241, 243; 597 NW2d 215 (1999).

In this case, the trial court ’ s instructions to the jury after the close of proofs included the following:

There has been some evidence that the defendant ran away a fter the alleged crime. This evidence does not prove guilt. A person may run or hide for innocent reasons, such as panic, mistake, or fear. However, a person may also run or hide because of a consciousness of guilt. You must decide whether the evidence is true, and, if true, whether it shows that the defendant had a guilty state of mind.

In overruling defense counsel ’ s objections to providing the instruction, the trial court noted
that the standard instruction referred to “ some, ” not necessarily abunda nt or otherwise compelling evidence of flight, and spoke of the efforts the police undertook to find defendant, which “ included going to his house and also another address, and trying to find him, and

. . . he made himself scarce for three days. ” Testimony from the police officer in charge of the case supported the trial court ’ s conclusion. The officer stated that, within hours of the assault, the complainant gave permission and provided her keys for the police to enter the home she shared with d efendant, where she had left him, and that she also suggested an alternative location for him. When the police promptly reported to the residence, however, defendant was not present. Nor did officers dispatch ed to the

5 See M Crim JI 4.4(2)

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alternative location find him there. The officer in charge stated that he asked dispatch to “ ping ”
defendant ’ s cell phone in hopes of determining its location, but that “ they believed it was turned
off. ”

After failing to locate defendant during the first day of the investigation, the offic er in charge turned the search over to “ people who actually can sit on houses or investigate further through that and that ’ s all they have to do. ” When an e

- mail from the complainant later provided additional information, defendant was apprehended by what the officer called the “ Fugitive Task

Force

. ” The latter team was sent to the residence and watched it from noon until 3:00 p.m., during
which time officers knocked on the door without answer. Then defendant, after not answering their knocking on the do or, finally left the residence from the back door.

Defendant argues that neither leaving his home nor returning to it constitutes flight for present purposes. However, the challenged instruction recognize s not only fleeing, but also hiding, as possibly i ndicating a guilty mind, which permitted the jury to consider that possibility on the basis of only “ some evidence. ” We hold that the evidence that the police could not find defendant at all on the first day, including by responding promptly to a location where he had been left sleeping, and attempting to use cell phone signals, and that the f ugitive apprehension team could not find him over the two days that followed until an e

- mail tip led the police back to the home where they found him only as he attem pted to leave through the back door after three hours of observation during which he declined to respond to knocking at the door, provided a sufficient evidentiary basis that justified the trial court’s giving the challenged instruction. Further, the tria l court guarded against any possibility that the jury would attach too much significance to the evidence that defendant seemed to be avoiding the police after the subject incident by beginning
its instruction with the admonishment that such evidence itself “ does not prove guilt

. ” Therefore, the trial court did not err in this regard.

VI

. CUMULATIVE ERROR

Defendant suggests that if no single claim of error itself warrants reversal, such relief is nonetheless required in the face of the cumulative effect of all such errors. See People v Cooper

, 236 Mich App 643, 659

- 660; 601 NW2d 409 (1999)

. B ecause defend ant has failed to bring any error to light, this argument is unavailing.

Affirmed.

/s/ James Robert Redford
/s/ Michael J. Riordan
/s/ Jonathan Tukel