### C ourt of Appeals , Sta t e of Michigan

People 

### of MI v Kevin 

### Raynard Jackson

Docket No. 322350

LC No. 13-020353-FH 

### ORDER

Mark T. Boonstra Presiding Jud ge

Henr y William Saad

Joel P. Hoekst r a

Judge s

The Court orde r s that th e motion for reconsideration i s GRANT ED, and this Court's

op ini on issued Oct ober 13, 2015 is h ereby VACA TED . A new opinion is attached to this order.

A true copy entered and certified by J ero m e W. Zim m er Jr

.. Ch ie f C l e rk

, on



## DEC 0 3 2015

Date

# ~~,GL**Chie~**-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION December 3, 2015 9:00 a.m.

v No. 322350 Eaton Circuit Court KEVIN RAYNARD JACKSON, LC No. 13-020353-FH

Defendant-Appellant.

ON RECONSIDERATION

Before: B OONSTRA , P.J., and S AAD and H OEKSTRA , JJ.

B OONSTRA , P.J.

Defendant appeals by right his conviction, following a jury tr ial, of second-degree home invasion, MCL 750.110a(3). The trial court sentenced defendant as a second-offense habitual offender, MCL 769.10, to 88 months to 22 years’ imprisonment, w ith credit for 259 days served. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

The case arises out of the invasion of, and theft of household items and money from, Traci Brown’s home in Charlotte, Michigan on July 4, 2012. On that day, Brown and her three children left the home to visit her mother. According to Brown , her windows and doors were all locked when she left, and she di d not leave her front door open . Brown testified that, other than herself and her children, only her mother and the father of her children knew that she and the children would be away.

Alyson Michelle Hotchkiss, who lived in the house next door to Brown, testified that she was on vacation on July 4 with her husband Randy, three of her daughters, and her grandson. She had given permission to her oldest daughter, Tashena Waycas ter (who does not reside with her), and Dan Pion, to stay at her house while she was away; Ho tchkiss testified that she allowed them to stay at her house while she was away because they were heroin addicts and basically homeless. Hotchkiss took her valuables with her when she left for vacation because she did not want the items stolen by Waycas ter and Pion (presumably to be s old for drugs).

The backyard of LaVern and Ther esa Bailey’s house borders both the Brown and Hotchkiss backyards. LaVern said that he was working on his co mputer around 10:00 a.m. on-2- the morning of July 4, 2012 when he saw a man carrying somethin g and walking from the area of Brown’s house to the Hotchkiss house. LaVern was not positi ve that the man had come from Brown’s house, “but [the man] was so close to the house” that “ it kind of surprised [him].” While LaVern did not see the man come directly out of Brown’s h ouse, he did see him go into the Hotchkiss house. He describ ed the man, who was approximate ly 40 yards away, as “[a] black man, medium build, short hair, about five eight, five ten .” LaVern and his wife saw the same man 15 minutes later walking from the side area of Brown’s house towards the Hotchkiss house, carrying a laundry basket filled with “all kinds of stuf f,” as well as a brown jug or jar. The man put the basket on the deck of the Hotchkiss house, noti ced that he was being watched by LaVern and his wife, and walk ed into the house. The Baileys thought it looked a little suspicious but did not call the police at that time.

Pion and Waycaster admitted that in July of 2012 they used her oin, cocaine, crack cocaine, and marijuana; Pion would sometimes steal things to pa y for the drugs and Waycaster would prostitute herself for money to pay for the drugs. Pion and Waycaster testified that defendant was staying with them at the Hotchkiss house while he r parents were on vacation around the Fourth of July in 2012. According to Pion and Wayca ster, they ran into defendant at the Dairy Queen in town during the daytime and returned to Hotc hkiss’s home to smoke marijuana and crack cocaine. They testified that after doing drugs with defendant, defendant said that he was going to leave and “hit a lick,” which is a sl ang term meaning that defendant was going to steal something. Pion said that defendant left an d returned with a storage tote containing a couple of game systems, movies, and games; he plac ed the items in the basement of 813 West Lawrence (the address of the Hotchkiss home) and then left and returned with what Pion thought was a 32-inch flat-sc reen television; according to Waycaster, defendant had socks on his hands. Pion claimed that defendant left the house againand Pion went to bed. Pion testified that Waycaster was with him at her mother’s house whi le defendant was coming and going from the house. Waycaster testified that defendant went in and out of the Hotchkiss house at least four separate times; she saw him carry in a flat-scree n television, video game systems, DVDs, and games. Waycaster denied ever entering Brown’s house. Waycaster said that she told defendant that she “wanted something out of it,” i.e., a cut of the profits from selling the stolen goods, and that, when asked, defendant told her that he had sto len the items and pointed to the next door neighbor’s house. According to Waycaster, defendant showed her money in his pocket. Pion thought defendant was going to sell the stolen it ems so that they could buy drugs. Defendant was sleeping on the couch when Waycaster went to bed; when Pion and Waycaster woke up the next morning, most of the items defendant had broug ht into the house were gone, as was defendant. They found some small miscellaneous items taken by defendant still in the house, and hid them under a be d. Pion also discovered that $20 was missing from his car.

Matthew Andrews, a friend of def endant, testified that defenda nt was with him around noon on July 4, 2012 at a baseball game. According to Andrews, defendant went to Lake Michigan for the day with Andrews’ family and defendant’s girlf riend. They stayed in Saugatuck for a few hours and purchased fireworks on the way ho me, returning to Andrew’s house in Charlotte around 11:00 p.m. on July 4. Andrews testif ied that defendant spent the night at Andrews’ home. Mindy Dassance, who has a child with defenda nt, testified that defendant called her on July 5, 2012, asking her to pick him up at Andrew s’ home; she said that she did so and drove him back to her home. Acco rding to Dassance, defenda nt did not own a vehicle.-3- The Baileys called the police on July 5, 2012 after Theresa dr ove by Brown’s house and noticed that the front door was open. Charlotte Police Sergean t James Falk arrived at Brown’s house around 6:00 p.m. According to Falk, it was clear that th e house had been broken into because items appeared to be missing and the rooms had been ran sacked. Falk contacted Brown on the telephone at her mother’s home and informed her that her house had been broken into and that property had been stolen. Falk testified that after speak ing with the Baileys he knocked on the door of the Hotchkiss house. No one answered the door but through a window he could see a green laundry basket lying on t he floor in the basement.

Brown drove home after receiving the telephone call from Falk. Brown noted numerous items missing from her home: a 55-inch flat-screen television, an X-box 360, a Wii, two blue-ray DVD players, over 600 DVDs, 50 Xbox games, 100 Wii games, porta ble DVD players, a round glass jar partially full of coins , a 32-inch flat-screen televi sion that had been in her bedroom, a candleholder from the kitchen, food items from the refrigerator and freezer, alcohol, a brand new digital camera with a manual, a new computer printer still in the box, prescription medications, hand-held personal gaming devices, 100 Game Boy DS games, a Del l laptop computer, a window air conditioner, a GPS, anda full-size cooler. Brown t estified that the dresser drawers had been emptied in her and one of her son’s bedrooms, with the clothes strewn everywhere, and that a green laundry basket and $5,500 in cash had also been ta ken. In addition, she said that a television in another son’s be droom was tipped over and on the floor and a Wii figurine was missing. The original insurance estimate to replace the stolenitems, excluding the $5,500, was $24,000.

Falk returned to the Hotchkiss home later that night after the Baileys informed him that someone was home at that house. When questioned, Waycaster ind icated that in the preceding five days a woman named “Jamie” had been at the home with them. Waycaster informed Falk that the green laundry basket found in the Brown house belonged to her mother. According to Pion, he and Waycaster realized during Falk’s questioning that the items defendant had brought into the Hotchkiss house had been stolen from Brown’s house. P ion and Waycaster testified that they did not tell the police about defendant staying with them because they did not want to get anyone in trouble; Waycaster also testified that she was afraid of getting into trouble because she felt somewhat responsible for hol ding stolen items. Pion testi fied that he did not know who lived at the Brown house or that they would be on vacation on July 4.

Hotchkiss returned with her family to their house on July 6, 2 012. When she got home, her landlord told her about the break-in at Brown’s house. Hot chkiss found items later identified as stolen from Brown’s house under her grandson’s bed and in ot her areas around her house. Hotchkiss said that she called the Charlotte Police Department as soon as she found the items. Hotchkiss spoke to Waycaster on the telephone before the police arrived and told her that she and Pion needed to speak to the police or they would not be all owed to stay in her home. Pion and Waycaster again spoke with police on July 8, 2012. At firs t, both Pion and Waycaster minimized their knowledge of the robbery, but both identified d efendant and described his conduct on July 4. Pion testified that he did not feel pressur ed by the police to “give up a name” and denied that he named defendant because he was a black male he knew.

Hotchkiss testified that additional items were taken from her home four days after she returned from vacation; Pion and Waycaster were not at the hous e when it happened. Pion and-4- Waycaster came over to her house and she told them what happene d. Pion showed Hotchkiss a text message that he said he had received from defendant; Hotch kiss testified that the content of the text was vindictive and t hreatening, and that the message

was pertaining to the fact that he had found out that [Pion] an d [Waycaster] had went and talked to the police and that he couldn’t believe that [Pion] basically would choose [Waycaster] over him since they were, they had gro wn up and been friends most of their lives. And that since he couldn’t get to [Waycaster] then he would have to then basically go aft er me and my three little on es.
Hotchkiss never reported the text message to the police. Pion testified that he did not remember showing a text message to anyone but knew from the text that de fendant was mad about something.

Brown later identified the gree n laundry basket, the change ja r, jewelry, one of her son’s digital cameras, the Wii figurine, and two fans as belonging to her. At trial, Brown also identified a missing jar, a Wii steering wheel controller, a DV D, her digital camera with the manual, and a Polaroid camera.

During the trial, Pion testified that he had been charged with the felony of receiving and concealing stolen property and that in exchange for his testimo ny against defendant, the prosecutor’s office had agreed to allow him to plead guilty to a misdemeanor charge of receiving and concealing stolen property. Waycaster testified that she h ad also been charged with felony receiving and concealin g stolen property, and that in exchange for her truthful testimony, the charges were reduced to misdem eanor receiving and concealing st olen property.

The jury convicted defendant o f one count of second-degree hom e invasion, MCL 750.110a(3). Defendant was sen tenced as described above. At sentencing, defendant received a score of 25 points for offense variable (OV) 13 (con tinuing pattern of felonious activity) and 5 points for OV 16 (value of stolen property).

This appeal followed. After defendant filed his appeal, he mo ved this Court to remand for resentencing pursuant to People v Lockridge , ___ Mich ___; ___ NW2d ___ (Docket No. 149073, decided July 29, 2015). This Court denied his motion “ without prejudice to the panel’s consideration of the issue in t he context of the pending appeal .” People v Jackson , unpublished order of the Court of Appeals, issued September 4, 2015 (Docket No. 322350).

II. INSTRUCTION ON LESSER OFFENSE

Defendant argues that the trial court erred in instructing the jury on the lesser-included offense of third-degree home i nvasion. Defendant maintains tha t, by providing essentially identical instructions on second- degree and third-degree home i nvasion, the instructions as a whole were confusing and allowed the jury to convict defendant of the higher offense (seconddegree home invasion) on no greater proof than would sustain a conviction for the lesser offense (third-degree home invasion), thus lowering the prosecution’s b urden of proof on the former.-5- The record indicates that defendant’s counsel requested that th e jury be so instructed, and affirmatively approved the jury instruction as read. Defendant has thus waived challenge to any error in this instruction. People v Chapo , 283 Mich App 360, 372-373; 770 NW2d 68 (2009). 1

Further, even if defendant had not waived appellate review of this issue, we would find that reversal was not required. “A criminal defendant is entit led to have a properly instructed jury consider the evidence against him.” People Riddle , 467 Mich 116, 124; 649 NW2d 30 (2002). The jury instructions must include all elements of the charged offenses and any material issues, defenses, and theories if there is evidence to support them. People v Reed , 393 Mich 342, 349-350; 224 NW2d 867, cert den 422 US 1044 (1975). This Court reviews unpreserved challenges to jury instructions for plain error affecting a par ty’s substantial rights. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999).

“MCL 768.32(1) permits the trier of fact to find a defendant g uilty of a lesser offense if the lesser offense is necessarily included in the greater offen se. A lesser offense is necessarily included in the greater offense when the elements necessary for the commission of the lesser offense are subsumed within the elements necessary for the comm ission of the greater offense.” People v Wilder , 485 Mich 35, 41; 780 NW2d 265 (2 010). The trial court should give a “requested instruction on a necessarily included lesser offense . . . if the charged greater offense requires the jury to find a disputed factual element that is no t part of the lesser included offense and a rational view of the e vidence would support it.” People v Cornell , 466 Mich 335, 357; 646 NW2d 127 (2002).

In this case, defendant was charged with second-degree home invasion, and defense counsel requested, and the jury was additionally instructed on, the lesser offense of third-degree home invasion, MCL 750.110a(4). S econd-degree home invasion is established when:

A person who break and enters a dwelling with intent to commit a felony, larceny, or assault in the dwelling, or a person who breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a felony , or assault is guilty of home invasion in the second de gree. [MCL 750.110a(3) (empha sis added).]

In relevant part, third-degree home invasion is established wh en a person:
(a) Breaks and enters a dwelling with intent to commit a misdemeanor in the dwelling, enters a dwelling without permission with intent to commit a misdemeanor in the dwelling, or breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering , present in, or

1 We reject defendant’s assertion that such an alleged instructi onal error cannot be waived. See People v Carter , 462 Mich 206, 215-16; 612 NW2d 144 (2000). Further, for the reasons noted in this opinion, the instructions did not result in manifest in justice or prejudice to defendant. Carines , 460 Mich at 775.-6- exiting the dwelling, commits a misdemeanor. [MCL 750.110a(4)( a) (emphasis added).]

Our Supreme Court has held that “[t]he second element of the l esser crime, [intended] commission of a misdemeanor while present in the dwelling , is subsumed within the second element of the greater crime charged [there, first-degree home invasion], [intended] commission of a larceny while present in the dwellin g, because every felony larceny necessarily includes within it a misdemeanor larceny.” See People v Wilder , 485 Mich 35, 46; 780 NW2d 265 (2010). This Court had earlier concluded, in People v Sands , 261 Mich App 158, 163; 680 NW2d 500 (2004), that the language of MCL 750.11a(2) permits a misdemeanor larceny or misdemeanor assault to serve as the predicate offense for first -degree home invasion, rather than requiring felony larceny or assault. The Court reasoned that, “because felonies are specifically listed as underlying crimes for first-degree home invasion, it would be redundant to list assault and larceny separately if subsection 110a(2) was referring to o nly felony assaults and larcenies.” Id . Although the Wilder and Sands Courts were considering the first-degree home invasion statute, its relevant language is the same as that of the secon d-degree home invasion statute. See MCL 750.110a(2), (3). 2 The rationale of those cases is therefore equally applicable to seconddegree home invasion, MCL 750.110a(3), and either a misdemeanor or felony larceny thus may serve as the predicate offense for second-degree home invasion. Consequently, where, as here, the predicate offense for the home invasion charge was a larceny, third-degree home invasion was a lesser-included offense of second-degree home invasion.

Nonetheless, under the facts of this case, a rational view of the evidence did not support the giving of an instruction on third-degree home invasion. Cornell , 466 Mich at 357. In this case, there was no is no record evidence that defendant entered Brown’s home to commit any crime other than a larceny. Spe cifically, Pion and Waycaster b oth testified that d efendant said he was going to “hit a lick,” which is a slang term meaning that d efendant was going to steal something, and returned to the house later carrying items in a basket. Because felony and misdemeanor larceny may serve as the predicate offense underlyi ng second-degree home invasion, Sands , 261 Mich App at 163, and because there was no evidence of anypredicate act other than that (larceny) suppor ting the second-degree home inv asion charge, the evidence in this case did not allow for a distinction between second-degree home invasion and third-degree home invasion, and therefore did not support an instruction on third -degree home invasion. The trial court thus erred in giv ing that instruction. Cornell , 466 Mich 335, 357.

The trial court and counsel for the parties appeared to strugg le with how to instruct the jury that both felony and misdemeanor larceny may serve as the predicate offense underlying second degree home invasion. However, if anything, this confus ion aided defendant by allowing him a chance to be convicted of a lesser offense based on a pre dicate offense that would have supported a higher charge. Alt hough defendant argues that the instruction given allowed the jury to convict him of a higher offense than that which the evidence supported, it is the conve rse that

2 First-degree home invasion requires proof of additional elemen ts not at issue in this case. See MCL 750.110a(2)(a), (b).-7- is actually true: the instructi on allowed defendant the chance to be convicted of a lesser offense than that which the evidence s upported. Thus, the jury was all owed to consider a lesser charge that it should not have been allo wed to consider. Had the jury convicted defendant of the lesser offense, he would have been subject to a lesser sentence. Howe ver, the jury convicted defendant of the higher charged offense, second-degree home invasion. We therefore hold that the improper jury instruction did not affect defendant’s substantia l rights. Carines , 460 Mich at 763- 764. 3 We further hold that a defendant may not request such an inst ruction, only to later claim resulting confusion in the jury instructions, thus harboring error as an appellate parachute. People v Buie , 491 Mich 294, 299; 817 NW2d 33 (2012).

III. PROSECUTORIAL ERROR 4

Defendant next argues that the prosecution erred in improperly vouching for Pion and Waycaster’s credibility and bolst ering their testimony during c losing arguments, and additionally in soliciting testimony from Hotc hkiss regarding a threatening text message that was not reported to the police. We disagree. De fendant’s trial counsel did not object to the prosecution’s comments regarding Pion and Waycaster’s testimony, to the speci fied closing argument comments related to them, or to Hotchkiss’s statement regarding the text message. This issue is thus unpreserved and reviewed for plain error affecting substan tial rights. Carines , 460 Mich at 763. Reversal is warranted only when plain error resulted in t he conviction of an actually innocent defendant or seriously a ffected the fairness, integrity, or public reputation of judicial proceedings.” People v Callon , 256 Mich App 312, 329; 662 NW2d 501 (2003). “Further, [this Court] cannot find error requiri ng reversal where a curative in struction could have alleviated any prejudicial effect.” Id . at 329–330.

3 Arguably, our analysis (based on existing caselaw) leads to a somewhat nonintuitive result: while third-degree home invasion is a necessarily-included less er offense of second-degree home invasion involving larceny, cases where the predicate offense alleged is larceny (or assault, for that matter) will generally not r equire that an instruction on third-degree home invasion be given. But our analysis is consistent with the oft-repeated mantra that our task is to give fair and natural import to the language of statut es, and not to speculate as to the intent of the Legislature beyond the language expressed in the statute. See Chico-Polo v Dep’t of Corrections , 299 Mich App 193, 198; 829 NW2d 314 (2013). Moreover, even if, in construin g the home invasion statutory scheme as a whole, we were to interpret the elements of third-d egree home invasion to require proof of an intended or committed misdemeanor apart from larceny or assault, our conclusion would not be altered. Rather, in that event, a jury instructio n on third-degree home invasion still would be improper in this case, as it would be inconsistent wit h the charges and unsupported by the evidence. And in either event, the instruction, though err oneous, inured to defendant’s potential benefit and is not grounds for reversal.

4 As this Court recently noted in People v Cooper , 309 Mich App 74, 87-88; 867 NW2d 452 (2015), although the term “prosecutorial misconduct” has become a term of art often used to describe any error committed by the prosecution, claims of inad vertent error by the prosecution are “better and more fairly presented as claims of ‘prosecutori al error,’ with only the most extreme cases rising to the leve l of ‘prosecutorial misconduct. ’ ”-8- We review claims of prosecutorial error on a case-by-case basi s by examining the record and evaluating the prosecution’s remarks in context. People v Noble , 238 Mich App 647, 660; 608 NW2d 123 (1999). “[T]he prosecutor is permitted to argue t he evidence and all reasonable inferences arising from it.” People v Thomas , 260 Mich App 450, 454; 678 NW2d 631 (2004). However, the prosecution cannot vouch for the credibility of hi s or her witness “to the effect that he [or she] has some special knowledge concerning a witness’ tr uthfulness.” People v Bahoda

, 448 Mich 261, 276; 531 NW2d 659 (1995). A prosecutor may, howe ver, make reference to a plea agreement containing a promise of truthfulness, provided t hat the agreement is not “used by the prosecution to suggest that the government had some special knowledge, not known to the jury, that the witness was testifying truthfully.” Id . (quotation marks and citation omitted). Additionally, “a prosecutor may c omment on his own witnesses’ c redibility during closing argument, especially when there is conflicting evidence and the question of the defendant’s guilt depends on which witnesses the jury believes.” Thomas , 260 Mich App at 455.

In this case, defendant claims that the prosecution improperly vouched for Pion and Waycaster’s credibility during her closing argument by stating that they were testifying truthfully. The prosecution stated that Pion and Waycaster testified pursuant to a plea agreement, and that the “ongoing plea agreement [was] still int act and they ha[d] to testify truthfully.” The prosecution fu rther argued that, despite thei r drug use, Pion and Waycaster had testified truthfully to the best of their ability and that thei r testimony was supported by other evidence, such as the testimony of neighbors who had seen a bla ck male going between the Brown house and the Hotchkiss house.

Defense counsel repeatedly attack ed Pion and Waycaster’s credi bility because of their drug use and drug addiction. In context, the prosecution’s com ments were made in response to defense counsel’s theory of the case, that Pion and Waycaster w ere not credible witnesses due to drug use. Thomas , 260 Mich App at 454. Further, although the prosecution made reference to the plea agreement, it did not “suggest that the government had some special knowledge, not known to the jury, that [they were] testifying truthfully.” Bahoda , 448 Mich at 276. We therefore find no error requiri ng reversal in the prosecution’s statements concerning Pion and Waycaster’s credibility.

Defendant further argues that the prosecution and the police d id not have personal knowledge of the “threatening” text allegedly sent by defendant , and that the prosecution’s reference to it in closing argument denied him a fair trial. H otchkiss first referred to the text message during her cross-examination by defense counsel. On re direct, the prosecution questioned Hotchkiss regarding the timing of the text message i n relation to the break-in that occurred at her home. In contex t, it is clear that Hotchkiss g ave an unresponsive answer to the prosecution’s questions after the prosecution twice instructed her not to discuss th e content of the message. Unresponsive answers from witnesses are generally notprosecutorial error. See People v Hackney , 183 Mich App 516, 531; 455 NW2d 358 (1990) (stating that “[a] s a general rule, unresponsive testimony by a prosecution witness does not justify a mistrial unless the prosecutor knew in advance that the witness would give the unre sponsive testimony or the prosecutor conspired with or encouraged the witness to give tha t testimony”). Further, the prosecution did not question Hotc hkiss about the content of the text message, but did make it clear through its examination that no one was charged for the b reak-in and that Hotchkiss did not know for sure who took the items; thus, the prosecution further inquired into the incident, not the-9- text, to minimize the effect of the nonresponsive reference to the content of the text message. Finally, despite defendant’s ass ertion to the contrary, the pro secution did not refer to the text message during its closing argument and thus did not argue fact s not in evidence. See People v Stanaway , 446 Mich 643, 686; 521 NW2d 557 (1994).

IV. JURY COMPOSITION

Defendant argues that his SixthAmendment right to a fair tria l was violated by the jury empaneled to decide his case, because it did not represent a fa ir cross-section of the community. We disagree. Defendant did not raise this issue in the trial c ourt and we review it for plain error affecting substantial rights. Carines , 460 Mich at 763-764.

A defendant has the right to be tried by an impartial jury dra wn from a fair cross section of the community. US Const, Am VI; Const 1963, art 1, § 1; People v Bryant , 491 Mich 575, 595; 822 NW2d 124, cert den ___ US ___; 133 S Ct 664 (2012). I n Bryant , our Supreme Court explained that to establish a pr ima facie case of a violation o f the Sixth Amendment’s fair-crosssection requirement, a defendant must show:

(1) that the group alleged to be excluded is a ‘distinctive’ gr oup in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the numb er of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. [ Id . at 581-582, quoting Duren v Missouri , 439 US 357, 364; 99 S Ct 664; 58 L Ed 2d 579 (1979).]

“[W]hen applying the relevant statistical tests, a court must e xamine the composition of jury pools and venires over time usin g the most reliable data availa ble to determine whether representation is fair and reasonable.” Bryant , 491 Mich at 599-600. “A systematic exclusion is one that is inherent in the particular jury-selection process u tilized.” Id . at 615-616 (quotation marks and citation omitted).

Defendant argues in this case that his jury was more Caucasian , more educated, and had more ties to law enforcement than a typical cross-section of th e Eaton County community. In support of this assertion, defendant refers to the 2010-2011 Un ited States Census of Eaton County, which according to defendant indicates that Eaton County is more than 90% Caucasian, about 6% African-American, and less than 4% Hispanic. Defendan t asserts that his jury was “either all White, with no African-Americans present, or had on ly one member that was not White.” However, there is no evidence in the record of the rac ial makeup of defendant’s jury. Further, defendant provides no evidence indicating a “systemati c” exclusion of AfricanAmericans from Eaton County jury pools. See Bryant , 491 Mich at 595. Defendant has thus failed to establish a prima facie case for violation of the Six th Amendment’s fair-cross-section requirement with regard to race. Id

. With regard to education level and ties to law enforcement, de fendant provides no evidence that persons possessing a certain degree of education or ties to law enforcement, or lacking the same, are members of a “distinctive” group in the E aton County community. Id

. Further, the record, although it does not reflect the precise e ducation levels of the selected jurors,-10- indicates that the jurors came from a wide variety of professio ns; additionally, while four jurors acknowledged ties to law enforce ment, no evidence was presented that this was disproportionate compared to the community at large. We thus conclude that defe ndant has failed to establish a prima facie case for violation of the Sixth Amendment’s fair-cr oss-section requirement with regard to education level or ties to law enforcement. Id

. Defendant also makes passing reference to the prosecution’s use of preemptory challenges to allegedly excuse one African-American juror. To the extent that defendant seeks to raise a Batson 5 challenge to the prosecution’s use of preemptory challenges, t his issue is also unpreserved and reviewed for plain error. Carines , 460 Mich at 763-764. Further, “unless it is clear from the record that the prosecution is using its perempt ory challenges in a discriminatory fashion, a defendant who fails to raise the issue or otherwise develop an adequate record of objections forfeits appellate review of the issue.” People v Vaughn , 200 Mich App 32, 40; 504 NW2d 2 (1993). Our review of the record does not reveal that t he challenged juror was, as defendant claims, challenged because of his race. The record i s devoid of any evidence regarding the racial makeup of any of the prospective jurors, let alone the juror in question.

V. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that his trial counsel was ineffective for fa iling to object to the jury composition and selection, failing to object to prosecutorial e rror, and failing to diligently inquire as to the lack of effort in attempting to obtain from the telep hone or telecommunication company information regarding the text message. We disagree. Defendant did not move the trial court for a new trial or a Ginther 6 hearing. Our review of defendant’s claim is thus limited to er rors apparent on the record. People v Matuszak , 263 Mich App 42, 48; 687 NW2d 342 (2004).

It is strongly presumed that d efense counsel “rendered adequat e assistance and made all significant decisions in the exer cise of reasonable professiona l judgment.” People v Vaughn

, 491 Mich 642, 670; 821 N2d 288 (2012) (quotation marks and cita tion omitted). When reviewing defense counsel’s performance, the reviewing court mu st first objectively “determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Strickland v Washington , 466 US 668, 690; 104 S Ct 2052; 80 L Ed2d 674 (1984). Next, the defendant must show that trial counsel’s deficient performance prejudiced his defense —in other words, that “there is a reasonable probability that, but for counsel’s unprofessional e rrors, the result of the proc eeding would have been different.” Vaughn , 491 Mich at 669 (quotation marks and citation omitted). The defendant must establish both prongs of this test to preva il on his claim of ineffective assistance of counsel. People v Hoag , 460 Mich 1, 6; 594 NW2d 57 (1999). In addition, “to persuade a reviewing court that counsel was ineffective, a defendant must also overcome the pre sumption that the challenged action was trial strategy.” Id

.

5 Batson v Kentucky , 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986).

6 People v Ginther , 390 Mich 436, 442-443; 212 NW2d 922 (1973).-11- With regard to the jury composition and alleged prosecutorial error, defendant has failed to establish a factual predicate for this claim, as discussed e arlier in Parts III and IV of this opinion. Hoag , 460 Mich at 6. With regard to defense counsel’s alleged fail ure to adequately investigate the text message, “[d]ecisions regarding what evide nce to present, whether to call witnesses, and how to question witnesses are presumed to be mat ters of trial strategy.” People v Horn , 279 Mich App 31, 39; 755 NW2d 212 (2008). In addition, “[d]e fense counsel’s failure to present certain evidence will only constitute ineffective assis tance of counsel if it deprived defendant of a substantial defense.” People v Dunigan , 299 Mich App 579, 589; 831 NW2d 243 (2013). A substantial defense is one that might have made a di fference in the outcome of the trial. People v Chapo , 283 Mich App 360, 371; 770 NW2d 68 (2009). “Because the defe ndant bears the burden of demonstrating both deficient performance an d prejudice, the defendant necessarily bears the burden of establishing the factual predic ate for his claim.” People v Carbin , 463 Mich 590, 600; 623 NW2d 884 (2001).

The record does not indicate that anyone ever informed the pol ice of the text message Hotchkiss testified to viewing on Pion’s cellular telephone; Ho tchkiss testified that she did not inform the police of the text after her house was robbed, and P ion testified that he did not show the text to anyone. Moreover, her original statement regarding the text was elicited from a question by trial counsel. Trial counsel was not ineffective f or failing to request purported evidence of which not even the police, let alone the prosecutio n, was aware. Thus, defendant cannot establish that trial counsel’s performance fell below an objective standard of reasonableness. Strickland , 466 US at 690. Further, even if trial counsel’s performance was deficient on this issue, in li ght of other testimony incriminat ing defendant, defendant cannot demonstrate that he was depri ved of a substantial defense. Dunigan , 299 Mich App at 589.

VI. SENTENCING

As noted earlier in this opinion, defendant moved this Court t o remand for resentencing in light of Lockridge

, ___ Mich at ___. Our review of the record convinces us that remandis not required.

At the outset, we note that def endant does not argue on appeal that the trial court erred in its scoring of any OVs. That is, defendant does not argue thatthe court’s factual findings in scoring OVs 13 and 16 were clearl y erroneous or not supported b y a preponderance of the evidence. A trial court’s scoring of OVs must be supported by a preponderance of the evidence; we review the trial court’s findings of fact for clear error. People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013). Rather, defendant merely argues on appeal that the facts supporting the scoring of these OVs were not necessarily found by the jury or admitted by defendant, and that a remand is therefore required by Lockridge

. We reiterate that judicial fact-finding remains an important c omponent of Michigan’s sentencing scheme post- Lockridge . Although the sentencing guidelines are no longer mandatory, “they remain a highly relevant consideration in a tr ial court’s exercise of sentencing discretion.” Lockridge , ___ Mich at ___ (slip op at 13). Lockridge simply requires that where,-12- as here, a trial court was not aware at the time of sentencing that the sentencing guidelines were advisory, we consider whether OVs were scored based on facts ne cessarily found by the jury or admitted by defendant, and whether, applying Lockridge , a remand is required. 7

We conclude that a remand is not required in this case. We do agree that the scoring for OV 16 was not based on facts admitted by defendant or necessari ly found by the jury; however, the scoring of OV 13 was based on facts admitted by defendant. Because, as explained below, removing the 5 points scored for O V 16 from defendant’s OV scor e would not alter his minimum guidelines range, defendant has not made a threshold showing of plain error.

In Lockridge , the Supreme Court held that in order to avoid any Sixth Amend ment violations, Michigan’s sentencing guidelines scheme was to be d eemed advisory, instead of being mandatory. Id . at __ (slip op at 28). The concern is that when a judge make s findings of fact “beyond facts admitted by the defendant or found by the ju ry” in a sentencing proceeding that increases a defendant’s minimum sentence, this runs afoul of a defendant’s right to a jury trial. Id . at __ (slip op at 1). As a result, the guidelines no longer can be considered mandatory, but sentencing judges must consult the guidelines and “ ‘take t hem into account when sentencing.’ ” Id . at __ (slip op at 28), quoting United States v Booker , 543 US 220, 264; 125 S Ct 738; 160 L Ed 2d 621 (2005).

In determining whether there is any plain error under this new scheme, the first inquiry is whether the facts admitted by the defendant and the facts neces sarily found by the jury “were sufficient to assess the minimum number of OV points necessary for the defendant’s score to fall in the cell of the sentencing grid under which he or she was se ntenced.” Id . at __ (slip op at 32). If the answer is “yes,” then a defendant cannot establish any p lain error. Id . at __ (slip op at 32). If the answer is “no,” then a re mand to the trial court is requ ired to allow it to determine whether, now aware of the advisory nature of the guidelines, the court w ould have imposed a materially different sentence. Id . at __ (slip op at 34). If the court determines that it would have imposed a materially different sentence, t hen it shall order resentencing

. Id . at __ (slip op at 34).

In this case, defendant objected to the scoring of OV 16 (valu e of stolen property) at sentencing; further, because the jury was only required to find that defendant intended or did commit a larceny, not a larceny of a specific value, facts supp orting this score were not necessarily found by a jury. See MCL 750.110a(3). They also w ere not admitted by defendant.

7 Indeed, sentences imposed by trial courts post- Lockridge (knowing of the advisory nature of the sentencing guidelines) will not require the consideration w e must give the instant case. See Lockridge , ___ Mich at ___, slip op at 13 (“Because sentencing courts wi ll hereafter not be bound by the applicable sentencing gui delines range, this remedy cure s the Sixth Amendment flaw in our guidelines scheme . . . . Sentencing courts must, however, continue to consult the applicable guidelines range and take it into account when impos ing a sentence.”)-13- We thus agree that, in considering whether defendant can make athreshold showing of plain

error, 8 the 5 points scored for OV 16 s hould first be subtracted from defendant’s total OV score.

However, we disagree with defe ndant’s contention that the scor ing of OV 13 was not based on facts admitted by defendant. A score of 25 points for OV 13 must be supported by facts indicating that the sentencing offense was part of a patt ern of felonious activity involving 3 or more crimes against a person within a five year period. See MCL 777.43(1)(c). Home invasion is a crime against a person. MCL 777.16f. The United States Supreme Court has recognized that a defendant’s admission of a prior conviction s atisfies the requirement that a sentencing enhancement be based on facts admitted by a defendan t or found by a jury. See Apprendi v New Jersey , 530 US 466, 487; 120 S Ct 2348; 147 L Ed 2d 435 (2000) (“Because Almendarez-Torres had admitted the three earlier convictions for aggravated felonies--all of which had been entered pursuant to proceedings with substantial procedural safeguards of their own--no question concerning the right to a jury trial or the st andard of proof that would apply to a contested issue of fact was before the Court.”), citing Almendarez-Torres v United States , 523 US 224, 230; 120 S Ct 2348; 147 L Ed 2d 435 (2000). In this ca se, defendant had pled guilty in 2012 to two charges of home invasion related to offenses commit ted earlier in 2010 and 2011. Defense counsel stipulated to these convictions at sentencing i n this case. More significantly, in pleading guilty to those crimes against a person, defendant adm itted his commission of those crimes, and admitted the factual basis for his guilty pleas to those crimes, in “proceedings with substantial procedural safeguards of their own.” Apprendi , 530 US at 487. Therefore, the facts underlying the scoring of OV 13 were admitted by defendant, and the points scored for OV 13 need not be subtracted in consider ing defendant’s total OV scor e under Lockridge

. Reducing defendant’s OV score by5 points (by subtracting the score for OV 16) would not alter defendant’s minimum sen tencing guidelines range. The refore, remand is not required under Lockridge

. Lockridge , ___ Mich App at ___; slip op at 33.

Affirmed.

/s/ Mark T. Boonstra /s/ Henry William Saad /s/ Joel P. Hoekstra

8 Our review of the record does not indicate, as indeed defendan t does not argue on appeal, that the score for OV 16 was clearly erroneous or not supported by apreponderance of the evidence. Hardy , 494 Mich at 438.