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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 23, 2017

v No. 328173 Macomb Circuit Court CLINTON RAYSHAWN GRAYSON, LC No. 2014-002444-FC

Defendant-Appellant.

Before: S ERVITTO , P.J., and S TEPHENS and R ONAYNE KRAUSE , JJ.

P ER C URIAM

. Defendant appeals as of right hi s jury convictions of first-de gree felony murder, MCL 750.316(1)(b), armed robbery, MCL 750.529, possession of a fire arm during the commission of a felony (felony-firearm), MCL 750.227b, and conspiracy to comm it armed robbery, MCL 750.157a; MCL 750.529. The trial court sentenced defendant to life imprisonment without parole for the first-degree murder conviction, to be served con secutive to a two-year term of imprisonment for the felony-fir earm conviction, and concurrent prison terms of 23 years 9 months to 50 years each for the armed robbery and conspiracy to commit armed robbery convictions. We affirm.

Defendant’s convictions arise f rom a robbery and shooting at the Moon Lite Party Store in Clinton Township on March 28, 2014. The owner of the store, Basim Sulaka, was shot and killed during the robbery. Def endant and three other codefendants, Kenneth Hill, Darius DiazGaskin, and Jomar Robinson, were charged in the offense. Defen dant’s trial was severed from the trials of the other thre e codefendants by stipulation. 1

I. IDENTIFICATION TESTIMONY

While this is not the first i ssue raised by defendant, we app roach the officer’s identification issue first because it is based upon this issue that we decline to reverse later in this

1 After defendant was convicted, codefendants Hill, Robinson, an d Diaz-Gaskin were tried jointly. All three codefendants were convicted of first-degree felony murder, armed robbery, conspiracy to commit armed robbery, and felony-firearm. Their appeals are pending in Docket Nos. 329166 (Hill’s appeal), 329209 (R obinson’s appeal), and 32 9223 (Diaz-Gaskin’s appeal).-2- opinion for the trial court’s error in de nying defendant’s moti on to suppress. Def endant contends that he was denied a fair trial because the police officers inv aded the province of the jury by opining that one of the men in the store’s surveillance videos was defendant. We disagree. Defendant failed to preserve his challenge to the officers’ tes timony by objecting to the testimony at trial. People v Osby , 291 Mich App 412, 414; 804 NW2d 903 (2011). “In order to avoid forfeiting an unpreserved er ror, a defendant has the burd en of establishing that the ‘(1) error occurred, (2) the error wa s plain, i.e. clear or obvious, and (3) the plain error affected substantial rights.’ ” Id . (citation omitted).

Inspector Joseph Burns and Dete ctive Quinn both testified that they were able to identify suspect one in the surveillance video as defendant. 2 Although Burns testified that he had experience identifying individuals as a police officer, and Qui nn testified that he had training in facial recognition, neither was qualified to testify as an expe rt in that field. Thus, their testimony constituted lay opinion testimony under MRE 701. People v Fomby , 300 Mich App 46, 50; 831 NW2d 887 (2013).

MRE 701 provides:

If the witness is not testifying as an expert, the witness’ te stimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) h elpful to a clear understanding of the witness’ tes timony or the determination of a fact in issue.

“[A] witness cannot express an opinion on the defendant’s guiltor innocence of the charged offense.” Fomby , 300 Mich App at 53 (citation and quotation marks omitted). “ [T]he issue of whether the defendant in the courtroom was the person pictured in a surveillance photo [is] a determination properly left to the jury.” Id . at 52 (citations and quotation marks omitted). “[W]here a jury is as capable as anyone else of reaching a conc lusion on certain facts, it is error to permit a witness to give his own opinion or interpretation o f the facts because it invades the province of the jury.” People v Perkins , 314 Mich App 140, 161-162; 885 NW2d 900 (2016) (citation and quotation marks omitted) vacated in part by People v Perkins , unpublished order of the Court of Appeals, entered February 12, 2016 (Docket Nos. 32 3454, 323876, 325741), and superseded in part on other grounds by People v Hyatt , ___ Mich App ___; ___ NW2d ___ (2016) (Docket No. 325741).

In Fomby , 300 Mich App at 48, an officer was permitted to testify regar ding the identity of individuals in still photos and surveillance footage. This Court concluded that the officer’s testimony helped the jury to correctly and efficiently determin e whether the individuals seen in the footage were the same indi viduals involved in the murder la ter depicted in the video because the video was long, likely depic ted other individuals, and it c ould be inferred that the officer viewed the video and photographs several times. Id . at 52. The Court noted that the “common thread” of authority allowed th e admission of such testimony wh ere there was “reason to believe that the witness is more likely to identify correctly the perso n than is the jury.” Id . (citation and

2 It appears that the officers identified defendant as suspect o ne in both the video from the party store and the video from the apartment complex.-3- quotation marks omitted). This Court concluded that the office r did not invade the province of the jury because he only linked individuals in the video as bei ng the same individuals depicted in the still photographs. Id . at 53.

In Perkins , 314 Mich App at 160, the witness identified the defendant in video and still frame photographs from the stairwell of the apartment building where a murder occurred. This Court concluded that the witness should not have been allowed t o identify the defendant as the individual where “[t]here was nothing about the images (i.e., p oor quality of the images, defendant wearing a disguise) th at necessitated [his] opinion.” Id . at 162. This Court concluded however, that even if the trial c ourt abused its discretion, th e error was not outcome determinative because the evidence was overwhelming and the def endant’s identity was not in dispute. Id

.

In United States v LaPierre , 998 F2d 1460, 1465 (CA 9, 1993), amended August 19, 1993, the court explained that such lay opinion testimony has b een limited to two types. “The first type is those in which the witness has had substantial an d sustained contact with the person in the photograph.” Id . “The second type is those in which the defendant’s appearanc e in the photograph is different from his appearance before the jury and the witness is familiar with the defendant as he appears in the photograph.” Id . The court stated: “We can perhaps imagine a hypothetical scenario in which a witness who knew a defendant o nly through photographs nonetheless had become sufficiently familiar with his appearanc e to give lay opinion testimony of this sort.” Id

.
This case is similar to Perkins because both officers identifi ed defendant as suspect one in the surveillance videos. Unlike in Fomby , they did not merely link individuals in a video and photographs as being the same individuals. The officers’ testi mony was based on their perceptions of the video. See Fomby , 300 Mich App at 50-51. The question is whether the testimony was helpful to the determination of a fact in issue and whether it invaded the province of the jury. See id . at 51-52. Given that defendant was wearing a mask in the vid eo from the party store, the officers’ testimony was helpful to the jury in identifying him. See Perkins , 314 Mich App at 162. Similarly, given that defendant’s face was no t clearly visible in the video from the apartment complex, the officers’ testimony was helpful in i dentifying him. 3 See id . The officers had become familiar with defendant through photographs , and they recognized characteristics of defendant in the videos, such as his hair, t he shape of his nose, the shape of his eyes, his skin tone, and his buil d. Burns testified that he ha d viewed the video of the party store 40 or 50 times. Therefore, the officers were in a better posit ion than the jury to identify defendant in the videos. Accordingly, the admission of the off icers’ testimony did not constitute plain error.

II. MOTION TO SUPPRESS

3 The quality of the video from the apartment complex was appare ntly poor. At one point, the prosecutor asked Lant, “Now that’s a dark camera, can you ident ify anyone in that photo?” The prosecutor also asked, “Sir, the footage of the exit and entran ce of Mr. Hill’s apartment is a little grainy and dark, but you said you recognized the one individual with the bigger, the more hair? Lant also testified that he c ould not see the face of “the guy with the hair.”-4- Defendant also argues that the trial court erred by denying hi s motion to suppress his statement to the police. Defendant contends that the police im properly questioned him after he invoked his right to an attorney a nd his right to remain silent . The trial court found that while the defendant invoked his rights to sile nce and to an attorney he v oluntarily waived those rights when he reinitiated questioning before any further interrogatio n or express questioning by the police. Although we conclude that the trial court erred by denying defendant’s motion to suppress, we also conclude tha t the error was harmless.

The relevant facts in this case are undisputed. Therefore, th e “trial court’s decision regarding whether [a] defendantwas subjected to ‘interrogation ’ or, more specifically, ‘express questioning or its functional equi valent,’ ” is reviewed de nov o. People v White , 493 Mich 187, 193; 828 NW2d 329 (2013). In People v Henry (After Remand) , 305 Mich App 127, 145; 854 NW2d 114 (2014), this Court explained:

A criminal defendant enjoys safeguards against involuntary sel fincrimination during custodial i nterrogations. Included withinthese safeguards is the right to remain silent durin g custodial inte rrogation and t he right to cut off police questioning. A defendant may assert his or her right to remain silent at any time, however, the assertion must be unequivocal. When a defen dant invokes his or her right to remain silent, the police must “scrupulously ho nor” the defendant’s request. The police fail to “scrupulously honor” a defendant’s invocatio n of the Fifth Amendment right “by refusi ng to discontinue the interroga tion upon request or by persisting in repeated efforts to wear down his resistanc e and make him change his mind.”

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At th is point he has shown that he intends to exercise his Fifth Amendment privilege; any statemen t taken after the person invokes his privilege cannot be other th an the product of compulsion, subtle or otherwise. [Citations omitted.]

“If the police continue to ‘inte rrogate’ the defendant after he has invoked his right to remain silent, and the defendant confesses as a result of that ‘interr ogation,’ the confession is inadmissible.” White , 493 Mich at 194 (citation omitted).

In White , 493 Mich at 195-196, our Supr eme Court stated:

In [ Rhode Island v Innis , 446 US 291, 300-302; 100 S Ct 1682; 64 L Ed 2d 297 (1966),] the United States Supreme Court explained the c ircumstances under which a defendant is deem ed to have been subjected to “in terrogation”:-5- [T]he Miranda [4] safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation ” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than thos e normally attendant to arrest a nd custody) that the police shoul d know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses pri marily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measur e of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A prac tice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or act ions, the definition of interrogation can extend only to words or act ions on the part of police officers that they should have known were reasonably likely to elicit an in criminating response. [Emphas is in the original.]

The Court further explained tha t the underlying intent of the p olice is not relevant:

[I]t may well have a bearing on whether the police should have known that their words or actions were reasonably likely t o evoke an incriminating response. In particular, where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect. [ Id. at 301 n 7.]

But, as one academic commentator explained, the focus must be o n the objective manifestation of the officer’s words rather than on the officer ’s subjective intentions in speaking the words:

[T]he best reading of the Innis test is that it turns upon the objective purpose manifested by the police. Thus, an officer “should know” that his speech or conduct will be “reasonably likely to elicit an incriminating response” when he should real ize that the speech or conduct will probably be viewed by the suspe ct as designed to achieve this purpose. To ensure that the inquir y is entirely objective, the proposed test could be framed as follows: if an objective observer (with the same knowledge of the suspect a s

4 Miranda v Arizona , 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).-6- the police officer) would, on the sole basis of hearing the off icer’s remarks, infer that the remarks were designed to elicit an incriminating response, then the remarks should constitute “interrogation.” [2 LaFave, Crim inal Procedure (3d ed.), § 6.7( a), p. 757, quoting White, Interrogation Without Questions: Rhode Island v Innis and United States v Henry, 78 Mich L R 1209, 1231- 1232 (1980) (emphasis in the original).]

In this case, it is undisputed that defendant unequivocally as serted his right to remain silent when he stated, “I don’t want to talk no more.” 5 The question is whether the police “scrupulously honor[ed]” defendant’s request by ceasing the int errogation. Henry , 305 Mich App at 145.

In White , 493 Mich at 191, after the defe ndant said he did not want to speak, the officer stated, “I hope that the gun is in a place where nobody can get a hold of it and nobody else can get hurt by it.” The Court concluded that this statement did n ot constitute interrogation or the functional equivalent of express questioning. Id . at 198-209. When the Court concluded that the defendant was not the subject of express questioning, it also m ade several findings: (1) the officers comment regarding the gun was not a question because i t did not ask for an answer or invite a response; (2) the addi tion of the words “okay” and “al l right” at the end of the comment did not transform it into a question; (3) the officer told the defendant that he was not asking him questions; (4) the defendant’s “response” to the comment concer ning the location of the gun did not have anything to do with the location of the gun; (5) the o fficer seemed surprised by the defendant’s incriminating statement and immediately tried to ve er the conversation away from any further incriminating statements; and (6) to the extent the officer’s statement could be viewed as a question, it did not seem intended to generate an i ncriminating response. Id . at 198- 202. In concluding that the defe ndant was also not subjected t o the functional equivalent of express questioning, the Court determined that: (1) there was n othing to suggest that the officer was aware that the defendant was peculiarly susceptible to an a ppeal to his conscience; (2) there was nothing to suggest that the o fficer was aware that the defe ndant was unusually disoriented; (3) the officer made only a single remark about the gun and did not carry on a “lengthy harangue”; and (4) the comment was not particularly evocative. Id . at 202-204. The Court also concluded that the fact that the officer was talking directly t o the defendant was not determinative. Id . at 205-207.

5 Although the prosecutor disputes w hether defendant also assert ed his right to counsel, this issue is not determinative since defendant clearly invoked his right to remain silent. A suspect who invokes his right to counsel may not be subjected to further in terrogation until counsel is made available, unless the suspect initiates further communication w ith the police. People v Crusoe

, 433 Mich 666, 684; 449 NW2d 641 (1989). Thus, if defendant inv oked his right to counsel, the question would similarly be wheth er he initiated further commun ication with the police (i.e., whether any further communication was not the result of continu ed interrogation or express questioning by the police).-7- It is instructive to review the exchange in this case that fol lowed defendant’s express request that he only be interroga ted with a law yer present:

DETECTIVE [DAN] QUINN . You don’t want to talk any more? You just going to go with their story and not --

You don’t want to give your explanation for what.

DEFENDANT GRAYSON . I don’t know what the three is, what they are saying.

DETECTIVE [BRYAN] GILBERT . That is the truth, but that is fine.

DEFENDANT GRAYSON . I understand.

DETECTIVE GILBERT . We just have a rapport, give everybody the opportunity. This is your chance.

DETECTIVE QUINN . I’m not, I cert ainly don’t want to come across and I am not trying to be mean to you or b eing a jerk or anything.

DEFENDANT GRAYSON . I understand.

DETECTIVE QUINN . This is just, like, we said, your opportunity to tell us your portion because everybody is going to be charged with f elony murder. Okay. Including yourself. Okay.

But the way I look at it is that within those charges the Judge is going to look at things, and don’t misinterpret this as any promises, yo u know, any projection of what happened.

But the way things are going to be looked at is within the felo ny murder, right, each person had a differe nt level of involvement, okay.

You have got Ken who had some involvement. Jomar had some involvement. You know, yourself had some involvement and you g ot Darius, right?

I don’t want you to miss the opportunity to tell us what you di d, only what you did, and to get everything l umped in together. You know wh at I mean?

So when it comes down for sentencing, right, they’re going to l ook at it as not only did Darius say this, he also even wrote a letter to ap ologize to the family. Okay.

It’s not a matter of what happened, it’s why it happened. So this is your chance to explain a little bit about how it all took place.-8- DEFENDANT GRAYSON. Uhm, I’m confused you just told me I had the other gun.

At this point, Detective Gilbert said, “I am sorry,” and defen dant repeated his comment, stating, “You told me I had t he other gun. I don’t know who sa id I had the other gun.” Detective Quinn then stated, “We got the tapes of you with the other gun. ” The detectives then presented defendant with inculpatory evide nce and expressly questioned de fendant about what happened, which resulted in defendant maki ng incriminating statements adm itting his involvement in the offense.

We agree that, similar to White , defendant was not subjected to express questioning. Although the detectives used the words “okay” and “right” at th e end of their statements, this did not transform them into questions. See White , 493 Mich at 198-199. Nonetheless, we conclude that defendant was subjected to the functional equivalent of ex press questioning. Unlike in White , the detectives did not tell defendant that they were not aski ng him questions. Their statements, in which they repeat edly told defendant that it was his opportunity to talk and tell what he did, and that it could a ffect his sentencing, were the functional equivalent of express questioning intended to elicit an incriminating response. Plai ntiff argues that defendant’s response, regarding the gun, was not related to the detectives’ statements. Although the detectives did not mention the gun after defendant asserted his right to remain silent, their comments attempted to get defendant to talk about his involveme nt in the crime and tell what he did. Thus, defendant’s referen ce to his possession of the gun was not completely unrelated to their statements. Furthermore, unlike in White , the detectives were not surprised when defendant made the statement, and they continued to invite further incrim inating responses. After defendant’s statement about the gun, Detective Gilbert said, “I am sorry,” and defendant repeated his comment, stating, “You told me I had the other gun. I don’ t know who said I had the other gun.” Detective Quinn then stated, “We got the tapes of you wi th the other gun.” The officers did not try to veer the conversation away from further incrimin ating statements. White , 493 Mich at 200-201.

Although there was nothing to sugge st that the detectives knew that defendant had any particular susceptibility or was disoriented, that is not dispo sitive in this case. Unlike in White

, the detectives did not make a single statement. Rather, their comments were more akin to a “lengthy harangue,” White , 493 Mich at 204 (citation and quotation marks omitted), in wh ich they repeatedly told defendant that this was his opportunity to talk. The detectives’ comments, in particular those related to s entencing, were also particular ly evocative. As defendant argues, Detective Quinn lied about the fact that defendant’s statements might help at sentencing, and deception is designed to elicit an incriminating response. 6 Thus, the detectives should have known that their comments were reasonably likely to have that e ffect.

6 Specifically, the detectives s uggested that defendant could be treated differently at sentencing based on his level of involvement and the statements he made. However, defendant was facing a charge of first-degree felony murder, which is subject to a man datory penalty of life imprisonment without parole. MCL 750.316(1)(b).-9- In White , 493 Mich at 207, the Court expl ained that “courts have genera lly rejected claims . . . that disclosure of the results of a lineup or othe r inculpatory evidence possessed by the police, without more, const itutes ‘interrogation’ under Innis .” (Citation omitted). In this case, however, the detectives did not merely disclose inculpato ry evidence to defendant. Rather, they disclosed such evidence wh ile repeatedly telling defendant that it was his chance to talk, and they provided him with misleading information about the benefit s of talking. Immediately after the detectives talked about s entencing, defendant began talking again.

In sum, we conclude that the detectives’ statements constitute d interrogation. As the Court in White stated, “the dispositive question is whether the suspect’s inc riminating response was the product of words or actions on the part of the police t hat they should have known were reasonably likely to elicit an incriminating response.” White , 493 Mich at 208 (citation and quotation marks omitted). The detectives should have known that, by repeatedly telling defendant that this was his opportunity to talk and tell what h e did, defendant would make an incriminating statement. 7

Having concluded that the trial court erred by admitting defen dant’s statement, the question is whether, given the unt ainted evidence in this case, the admission of the statement was harmless beyond a reasonable doubt. Henry , 305 Mich App at 148. In People v Dendel , 289 Mich App 445, 475-476; 797 NW2d 645 (2010), this Court observed :
A constitutional error is harmless if [it is] clear beyond a re asonable doubt that a rational jury would have found the defendant guilty absent the error. In other words, if it is beyond a reasonable doubt that the jury would h ave convicted defendant on the basis of untainted evidence, defendant is not entitled to a new trial. [Citations and quotation marks omitted.]

The prosecution is required to prove “beyond a reasonable doubt that there is no reasonable possibility that the evidence complained of might have contributed to the conviction.” People v Anderson (After Remand) , 446 Mich 392, 406; 521 NW2d 538 (1994) (citation omitted). I n determining whether an error was harmless, this Court often con siders whether the evidence establishing the defendant’s guilt was overwhelming. See People v McDonald , 303 Mich App 424, 440; 844 NW2d 168 (2013).

In this case, there was sufficient evidence to find defendant guilty beyond a reasonable doubt, even without his statement to police. A witness who liv es a short distance from the party store testified that on the night of the incident, he was smoki ng a cigarette outside his home around 11:05 p.m. when he saw a boxy, tan-colored vehicle with tinted windows and a loud exhaust or engine stop on his street, Elmira. The vehicle pull ed over in front of a nursing building and three people, all dressed in dark clothing got outof the vehicle and began walking.

7 Although defendant’s statement about the gun was not itself in criminating, that statement led to the officers presenting defendant with inculpatory evidence, th e officers expressly questioning defendant about what happened, and defendant making incriminati ng statements. The officers essentially “[wore] down his res istance and [made] him change h is mind.” Henry , 305 Mich App at 145 (citation and quotation marks omitted).-10- When the witness left for work a short time later, he saw a lot of police cars at the party store and thought that their appearance may be related to the single car and the three people he had seen on his street just a short time earlier, so he advised the police what he had seen. Another witness testified that he was driving by the party store on the night o f the incident when he saw three individuals dressed in dark clot hing and wearing dark ski masks , one of whom was carrying a red duffle bag, running out of the party store. A police canin e unit tracked a scent from the party store to Elmira Street and offi cers testified that they found m oney on the ground in front of the nursing building on Elmira after the robbery.

Video surveillance taken at the party store recorded the robbe ry and shooting, with time stamps, showing that the robbery began at approximately 11:04 p .m. and concluding at approximately 11:06 p.m. This video was played for the jury. However, after reviewing the footage, police did not have the names of any of the three susp ects shown in the video. Information was released to the public in an effort to solve th e crime. A number of different tips were received and a lot of indi viduals were looked at as part o f the investigation. Having received defendant’s name (as well as his co-defendants) as a p ossible suspect, police then looked up his Facebook page to review photos of defendant and w ere also able to see him and his association with his co-defenda nts. Police also obtained defen dant’s driver’s lic ense photograph.

A security supervisor in charge of the security cameras at the Lotus Apartment complex in Clinton Township testified that he was familiar with a tenant of one of the apartments, defendant’s co-defendant, Kenneth Hill. He testified that Hill drove a tan or gold Buick LeSabre with tinted windows that had a loud exhaust. The security supe rvisor further testified that security footage from the day of the party store incident shows four individuals leaving the area of Hill’s apartment at 10:36 p.m. The video at 10:39 p.m. show s that the car in no longer in the parking lot. At 11:16 p.m., Hill’s vehicle is seen returning t o the apartment and, a few minutes later, the same four individuals are seen walking up the stairw ay toward Hill’s apartment. The security supervisor recognized Hill from the video footage as w ell as one of the other men “with the hair” as having been around before, although he could see n either’s face clearly. The video footage was shown to the jury.

One of the officers testified that he saw the video footage an d still shots from the party store surveillance, the video from the apartment complex securi ty camera, and he had also seen the Facebook photos from defendant ’s Facebook page. He testifi ed that in the party store footage and still shots, the subject had a substantial amount o f hair underneath his hat, a medium complexion, a wide, distinct bri dge of his nose, and a build th at was not heavy. The officer testified that the same characteristics were notable in the apa rtment complex security video and in defendant’s Facebook photos, and that they were able to iden tify defendant as one of the suspects based on these characteristics. Another officer testi fied that defendant had specific characteristics that made him recognizable as well, including h is hair, his nose, and a dark discoloration under his eyes.

One of the officers investigated the cell phone records of def endant. His investigation revealed an increased pattern of interaction between defendant and his co-defendants both before and after the party store incide nt. And, records showed that d efendant’s phone was in the area of the party store at the time of the incident.-11- When defendant was arrested at the home of a friend, the frien d identified belongings of defendant’s that were in her home. Those items included an ope n duffle bag containing black clothing and a black knit ski mask.

Looking at the totality of the e vidence, and placing special e mphasis on the fact that the jury was provided with all of the video footage, photographs, a nd still images, the jury was free to make its own determination as to whether defendant was, beyo nd a reasonable doubt, one of the perpetrators of the crimes at issue, even without his state ments to police. The evidence provided was sufficient to allow them to make this determinatio n in the affirmative.

III. JURY INSTRUCTIONS

Next, defendant argues that he was denied a fair trial because the trial court erroneously denied his request for a jury i nstruction on the defense of acc ident. We disagree.

“[J]ury instructions that involve questions of law are . . . r eviewed de novo. But a trial court’s determination whether a jury instruction is applicable to the facts of the case is reviewed for an abuse of discretion.”

Challenges to jury instructions are considered in their entire ty to determine whether the trial court committed error requiring reversal. Jury instructions must clearly present the case and the applicable law to the jury. T he instructions must include all elements of the charg ed offenses and any material i ssues, defenses, and theories if supported by the evidence. Therefore, when a jury instruction is requested on any theories or de fenses and is supported by evide nce, it must be given to the jury by th e trial judge. Howev er, a trial court i s not required to give a requested instruction where the theory is not supported by evid ence. Even when a defendant has been charged with first-degree murder and claims a firearm accidentally discharged, failure to instruct on accident is not subject to automatic reversal but is subject to review for harmless error. In the e vent of an instructional error, a defendant must demonstrate that it is mo re probable than not that the failure to give the requested lesser included misdemea nor instruction undermined reliability in the verdict. [ Perkins , 314 Mich App at 163-164 (citations and quotation marks omitted).]

Defendant contends that the tria l court should have provided M Crim JI 7.1 because the discharge of codefendant Darius Diaz-Gaskin’s gun was accidenta l. M Crim JI 7.1 is titled “Murder: Defense of Accident (Involuntary Act)” and provides:

(1) The defendant says that [he / she] is not guilty of _________________________ because _________________________’s d eath was accidental. That is, the defendant says that _____________

______________ died because [ describe outside force; e.g., “the gun went off as it hit the wall” ].

(2) If the defendant did not mean to [pull the trigger / ( state other action )] then [he / she] is not guilty of murder. The prosecutor must pr ove beyond a reasonable doubt that the defendant meant to __________________
__________.-12- The “ Use Note ” provides: “This instruction is d esigned for use where the def endant alleges that the act itself was entirely accidental. It is meant to be used as a defense to a murder charge only.”

In this case, Detective Quinn testified that defendant claimedin his statement to the police that the shooting was an accident. However, defendant m aintained that it was DiazGaskin, not defendant, who fire d the gun. As plaintiff argues, defendant could not know DiazGaskin’s intent, and the circumstances of the shooting, includi ng that the defendants entered the store with loaded weapons and that the victim was shot from beh ind, do not suggest an accident. Moreover, although defendant claimed that the shooting was an a ccident, he did not allege any involuntary act or outside force that occurred, such as the gun going off as it hit a wall, which would have supported an accident instruction. Contrary to defe ndant’s assertion, he did not say that Diaz-Gaskin and the victim struggled. Thus, despite defen dant’s claim that the shooting was accidental, M Crim JI 7.1 was not supported by the evidence. S ee Perkins , 314 Mich App at 163.

IV. INEFFECTIVE ASS ISTANCE OF COUNSEL

Defendant contends that he was denied the effective assistance of counsel by his trial attorney’s failure to object to the officers’ identification te stimony. Because we determine that the officer’s testimony was admissible, we disagree.

Defendant failed to preserve his claim of ineffective assistan ce of counsel by moving for

a Ginther 8 hearing or a new trial in the trial court. People v Payne , 285 Mich App 181, 188; 774 NW2d 714 (2009). Because no Ginther hearing was held, this Court’s review is limited to mistakes apparent on the record. Id . To establish a claim of ine ffective assistance of counsel,

[a] defendant must first show tha t defense counsel’s performanc e was deficient and, second, that counsel’s def icient performance prejudiced th e defense. Whether defense counsel’s performance was deficient is measured against an objective standard of reasonablen ess. To demonstrate prejudice , the defendant must show the existence of a reasonable probability that, but f or counsel’s error, the result of the proceeding would have been different. [ Payne , 285 Mich App at 188-189 (citations and quotation marks omitted).]

For the reasons discussed in section III, supra , the admission of the officers’ testimony did not constitute plain error. “Trial counsel is not ineffect ive for failing to advocate a meritless position.” Payne , 285 Mich App at 191.

V. SENTENCING

8 People v Ginther , 390 Mich 436, 443; 212 NW2d 922 (1973).-13- Finally, defendant argues that he is entitled to resentencing because the trial court relied on the mandatory sentencing guideli nes, which have since been r endered advisory. We disagree.

Defendant failed to preserve the issue of judicial fact-findin g by raising the issue “at sentencing, in a motion for resentencing, or in a motion to rem and.” People v Terrell , 312 Mich App 450, 464 n 40; 879 NW2d 294 (2015), lv held in abeyance ___ Mich ___; 878 NW2d 480 (2016) (citation and quotation marks omitted). Therefore, revi ew of this issue is for plain error affecting defendant’s substantial rights. People v Lockridge , 498 Mich 358, 392; 870 NW2d 502 (2015).

In Lockridge , 498 Mich at 364, our Supreme Court held that Michigan’s sente ncing guidelines are unconstitutional to the extent that they require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the sentencing guidelines minimum sentenc e range. The Court held that in order to avoid any Sixth Amendment violation, Michigan’s senten cing guidelines are to be deemed advisory, instead of mandatory. Id. at 391. The Court expressly articulated what is necessary to establish a plain error warranting appellate relie f in cases involving an unpreserved Sixth Amendment claim. Id . at 394. The Court concluded that in cases

in which (1) facts admitted by the defendant and (2) facts foun d 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 un der which he or she was sentenced, . . . because th e defendant suffered no prejudic e from any error, there is no plain e rror and no further inquiry is required. [ Id . at 394-395.]

In this case, defendant admits that facts found by the jury we re sufficient to assess the minimum number of points necessary for his score to fall in the cell of the sentencing grid under which he was sentenced. Accordingly, defendant did not suffer prejudice from any error, and no further inquiry is required. See Lockridge , 498 Mich at 394-395.

Affirmed.

/s/ Deborah A. Servitto /s/ Cynthia Diane Stephens /s/ Amy Ronayne Krause