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

revision until final 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UNPUBLISHED

May 27, 2021

v No. 350798

Oakland Circuit Court

CHARLES CLIFTON GHOLSTON, LC No. 2019-269793-FC

Defendant-Appellant.

Before: RONAYNE KRAUSE, P.J., and RIORDAN and O’BRIEN, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of armed robbery, MCL 750.529, 

and first-degree home invasion, MCL 750.110a. Defendant was sentenced, as a fourth-offense

habitual offender, MCL 769.12, 30 years to 60 years’ imprisonment each for his armed robbery 

and first-degree home invasion convictions. On appeal, defendant argues trial counsel was 

ineffective by failing to challenge the reliability of the DNA evidence. In addition, defendant 

argues (1) the trial court erred by failing to hold an evidentiary hearing, under Franks v Delaware, 

438 US 154; 98 S Ct 2674; 57 L Ed2d 667 (1978), to test the sufficiency of the warrant affidavit, 

and (2) trial counsel was ineffective for failing to correct the trial court’s misinterpretation of 

defendant’s argument at the motion hearing. We affirm. 

I. FACTS AND PROCEDURAL BACKGROUND

This case arises from an armed robbery. Edward Bell and Constance Wells were married 

and resided in two abutting houses, referred to as apartment three and apartment four, with their 

children, including Bell’s son 17-year-old son ME. Bell and ME had saved about $7,000 with 

which to purchase a vehicle, and they stored the money in apartment three. A few weeks before 

the robbery, Bell’s nephew had put Bell in contact with Leroy Butram, who agreed to sell a vehicle 

to Bell for $10,000 with $7,000 owed up front and $3,000 to be paid sometime after the vehicle 

was delivered. Bell and Butram agreed to a delivery date of September 20, 2017. 

On September 20, 2017, at about 6:00 p.m., ME was in apartment four getting ready to go 

to the local high-school football game. ME heard a knock at the door and as he opened the door, 

a man forced his way in, put a gun to ME’s head, and ordered him to the ground, “askin’ me where 
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everything was, like, if I had money.” The robber addressed ME by his older brother’s name, 

Elijah, demanded that ME disclose the location of the money, ordered ME on the ground, and 

threatened to “get mad and start shooting” if ME did not comply. ME believed the robber was 

serious about shooting, so he laid face down on the ground. 

At the same time, Wells and her stepdaughter, NE, stopped at Bell’s apartment. When they 

pulled into the driveway, NE got out of the car and went inside the apartment while Wells remained 

in the car. Inside the apartment, ME heard NE coming up the steps to the apartment. Scared for 

NE’s safety, ME told the robber the money was in a bag near his clothes in his bedroom. While 

lying on the ground near the front door, ME tried to hold the door closed to prevent NE from 

entering but was unsuccessful. When NE entered, she saw ME “on his knees with his hand behind 

his back” with the robber a few feet away. The robber ordered her to get on the ground and 

demanded ME and NE “tell him where the rest of the money was or he was gonna’ shoot.” The 

robber then asked if there was anybody else outside, and NE said no to protect her mother. When 

the robber noticed Wells’ car outside, he ordered ME to tie NE’s hands with a computer cord. The 

robber then ran from the house with the bag of money, ME’s backpack, and some jewelry. 

Outside the apartment, Wells believed NE was taking longer than expected, and “after a 

while, the [apartment] door slammed open, and I saw an image [sic] run past, and then I heard 

[ME] sayin’ mom, we got robbed[.]” As the robber ran away from the house, ME followed the 

robber and saw him get in the passenger side of a dark-colored car that looked like a Chrysler 300, 

from which ME obtained a partial license plate number. NE exited the house shortly thereafter 

and appeared visibly shaken. When responding Farmington Police Officer, Donald Laporte 

arrived, ME walked around the home and driveway with Officer Laporte and saw Bluetooth 

headphones and Apple watchbands in the street. ME identified the watchbands as items the robber 

had taken from the apartment. ME and NE identified the headphones as the headphones the robber 

was wearing during the incident. They explained that, throughout the incident, the robber was 

talking to someone on a cellphone using the headphones. ME identified the location of the 

watchbands and headphones as lying near the location where the robber had gotten into the 

getaway vehicle.

Bell, who was at work at the time of the incident, arrived at the apartment and identified 

the missing money and jewelry. Bell then called his nephew and told his nephew that he believed 

Butram was involved in the robbery. About fifteen minutes after the call, Butram called Bell and 

denied his involvement, but Butram “paused” and “kinda’ stuttered afterwards” when Bell told 

Butram that the police had been called. Bell gave the police Butram’s contact information, 

including his cellphone number. Bell also provided a cellphone number for Butram’s father, 

Gunz,1and Bell’s brother, Marcellus Bell. 

Farmington Police Detective William Wood presented a photographic lineup, which did 

not include defendant, to NE and ME. ME stated he was 100% sure the robber was Darnell 

Randolph, his friend’s stepfather, because the robber “was, like, big, like the dude’s stepfather, 

and he was calling me Elijah, so—and Elijah knew the stepfather, too, so I just—I was pretty sure 

it was him[;]” and as a result, ME picked Randolph out of the photographic lineup. Randolph 

 

1 Gunz’s first name was not identified in the lower court record. 
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became the original suspect, but he was excluded when it was confirmed that Randolph had been

in Wisconsin at the time of the incident. NE looked at the photographic lineup more slowly and 

picked a person from the lineup but indicated she was not sure if that person was the robber. The 

person NE selected had no connection to the case. 

During the investigation, Farmington Police Commander Justin DuLong obtained and 

executed search warrants for “tower dumps” from the major cellphone companies in the area to 

obtain information of all incoming and outgoing calls near the incident. The tower dump data

revealed Butram made several calls and exchanged several text messages to two other telephone 

numbers using a cellphone tower at the Grand River Avenue and M-5 intersection (the Grand River 

cellphone tower) near the victims’ home when the incident occurred. The telephone numbers

belonged to Arthur Lee Knuckles and defendant. Defendant’s cellphone was also in contact with 

Knuckles’s cellphone at the time the incident occurred. As a result, DuLong began to suspect 

defendant’s involvement, so he obtained a search warrant for more detailed cellphone use

information regarding Butram, Knuckles, and defendant. The resulting data revealed Knuckles 

and defendant were in the Farmington area at the time of incident while they were contacting each 

other.2 Oakland County Sheriff’s Department Detective Edward Wagrowski created an animation 

showing the movement of defendant’s cellphone from Detroit to Farmington during the time frame 

surrounding the incident. Specifically, defendant’s and Knuckles’s cellphones exchanged four 

calls between 5:56 p.m. and 6:07 p.m., with defendant’s cellphone using the Grand River cellphone 

tower near the victims’ home. 

The headphones recovered from the incident scene were sent to the Michigan State Police 

crime laboratory for DNA testing. Michigan State Police forensic scientist, Erica Anderson, 

performed a DNA analysis on the headphones, finding the headphones had a “mixed profile” 

containing at least four DNA profiles. Anderson was able to conclude with additional analysis 

that there was one major DNA contributor to the headphones and three minor DNA contributors. 

Anderson explained that she could only extract a usable DNA profile from the major DNA 

contributor, so she entered that profile into the Combined DNA Index System (CODIS), which 

would automatically search for a match to any other person known to the system. Michigan State 

Police forensic scientist, Joshua Strong, explained that there was a “hit” in CODIS from the profile 

Anderson had entered, showing a match to defendant. Long then re-tested the DNA profile the 

laboratory had on file from defendant to confirm the correctness of the CODIS match. Long wrote 

a report requesting that a new DNA sample should be obtained from defendant and compared by 

a third scientist to the sample obtained from the headphones. DuLong obtained and executed a 

search warrant to collect a buccal swab sample from defendant for additional testing. 

Michigan State Police laboratory manager, Heather Vitta, then conducted a further DNA 

analysis to confirm the results. To do so, Vitta utilized a software program called STR Mix, which 

“helps us kinda’ decipher the mixture, and determine who a likely [DNA] contributor is to the 

mixture.” Vitta explained:

 

2 The data also confirmed three telephone numbers that belonged to defendant, Knuckles, and 

Butram, respectively. When contacted by DuLong, Butram agreed to come to the police station 

for an interview but never showed up, and Knuckles refused to talk to DuLong. 
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The [STR] Mix software analysis determined that there were four contributors, and 

it gave [Vitta] percent contributions for those four contributors. . . . It estimated the 

primary or major contributor at 66 percent. The secondary was at 18 percent. The 

third contributor was at 10 percent. And the final was at six percent. 

* * *

[The software is] very objective, and it’s based on a lot of math and—and, you 

know, how often we see certain DNA types in the population, and so it takes all of 

that into account when it does this calculation. 

Because the major DNA contributor to the headphone DNA sample had a vast amount of DNA 

present, as compared to the minor contributors, only the major DNA contributor had sufficient 

DNA present to identify the contributor. The STR Mix analysis “determined that it was at least 

330 nonillion[

3

] times more likely” than not that defendant was one of the four DNA contributors.

In September 2018, DuLong had NE look at a second photographic lineup conducted by

Farmington Police Sergeant Patrick Spelman, who had been uninvolved in the investigation. NE

looked at six photographs, without names, and picked defendant. Sergeant Spelman opined that 

NE picked defendant “[r]ather quickly.” At the time of the photographic lineup, NE told Sergeant 

Spelman that she was 80% sure the robber was defendant. At trial, NE testified that she was 100% 

sure defendant was the robber after seeing him in person in the courtroom.

Relevant to this appeal, defendant moved to request an evidentiary hearing under Franks. 

Defendant challenged the sufficiency of DeLong’s search warrant for detailed call information 

associated with a cellphone number registered to defendant. Defendant argued that the affidavit 

in support of the warrant was improper for two major reasons. First, defendant contended that 

DuLong failed to describe the specific location of the subject phone. Secondly, the affidavit stated 

that a black Dodge Charger with a particular license plate number was registered to defendant, and 

“the victim reported that the suspect fled the scene in either a black Dodge Charger or Chrysler 

300.” Defendant contended that he never owned a black Dodge Charger, and although he had 

owned a Dodge Charger, that vehicle had been stolen approximately eight months before the 

robbery. The trial court denied defendant’s motion, finding no information that DuLong “knew 

the vehicle wasn’t in [d]efendant’s possession, but nevertheless went forward anyway with that 

knowledge[.]” The trial court concluded there were no affidavits or sworn statements to support 

defendant’s assertion that DuLong’s failure to discover defendant’s stolen vehicle was beyond 

mere negligence or innocent mistake. 

Defendant was convicted as described. This appeal followed. 

 

3 A nonillion is 1,000,000,000,000,000,000,000,000,000,000.
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II. DENIAL OF FRANKS HEARING

We first address defendant’s challenge to the trial court’s denial of his motion for a Franks

hearing.

A. STANDARDS OF REVIEW AND APPLICABLE LAW

A “Franks hearing” is an evidentiary hearing, pursuant to Franks v Delaware, 438 US 154; 

98 S Ct 2674; 57 L Ed 2d 667 (1978), inquiring into the validity of a search warrant’s affidavit. 

See People v Martin, 271 Mich App 280, 309; 721 NW2d 815 (2006). The trial court’s decision 

whether to hold a Franks hearing is discretionary, but the trial court’s underlying factual findings 

are reviewed for clear error, and any application of those facts to the law is reviewed de novo. Id. 

at 309-310. “An abuse of discretion occurs when a trial court’s decision falls outside the range of 

reasonable and principled outcomes.” People v Franklin, 500 Mich 92, 100; 894 NW2d 561 

(2017) (quotation omitted). “A trial court’s factual finding is clearly erroneous if the reviewing 

court is left with a definite and firm conviction that the trial court made a mistake.” Id. (quotation 

omitted).

An affidavit supporting a search warrant may be challenged upon “ ‘a substantial 

preliminary showing that a false statement knowingly and intentionally, or with reckless disregard 

for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement 

is necessary to the finding of probable cause.’ ” Martin, 271 Mich App at 311, quoting Franks, 

438 US at 155-156. “The rule from Franks is also applicable to material omissions from 

affidavits.” Martin, 271 Mich App at 311. A challenge to the validity of the affidavit requires 

deliberate falsity or reckless disregard by the affiant, and “[a]llegations of negligence or innocent 

mistake are insufficient.” Franks, 438 US at 171. Consequently, the fact that a statement in an 

affidavit is incorrect will not, by itself, undermine the validity of that portion of the affidavit. “The 

defendant has the burden of showing, by a preponderance of the evidence, that the affiant 

knowingly and intentionally, or with a reckless disregard for the truth, inserted false material into 

the affidavit and that the false material was necessary to the finding of probable cause.” People v 

Ulman, 244 Mich App 500, 510; 625 NW2d 429 (2001). A magistrate’s finding of the sufficiency 

of an affidavit should generally be afforded considerable deference. Franklin, 500 Mich at 101. 

“The invalid portions of an affidavit may be severed, and the validity of the resultant warrant may 

be tested by the information remaining in the affidavit.” Ulman, 244 Mich App at 510.

B. ANALYSIS

Defendant argues the trial court misunderstood his argument at the motion hearing and 

erroneously denied his motion for a Franks hearing based on that misunderstanding. Specifically, 

defendant maintains the trial court failed to recognize and address the evidence that DuLong 

recklessly or deliberately made a false statement that defendant owned a black Dodge Charger in 

the warrant affidavit. As noted, the affidavit stated that a black Dodge Charger with a certain 

license plate number was registered to defendant. That averment turned out to be incorrect: the 

stated license plate number was actually registered to defendant’s white Dodge Charger. 

Nevertheless, under the circumstances, this mistake does not rise to the level of a deliberate 

falsehood or reckless disregard of the truth. Franks, 438 US at 171-172. 
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First, defendant contends that there was no evidence he did actually own a black Dodge 

Charger. However, DuLong’s investigation with the Secretary of State revealed that defendant 

did in fact own a black Dodge Charger and received at least one traffic ticket with the vehicle in 

2016. Therefore, defendant is incorrect: there was evidence that he owned a black Dodge Charger. 

Secondly, defendant provided no evidence in support of his assertion that his white Dodge Charger 

had been stolen, nor did he provide any evidence that it remained missing at the time of the robbery. 

More importantly, however, presuming the truth of his assertions, there is no indication that 

DuLong knew or should have known that the white Dodge Charger had been stolen. DuLong 

testified that his records search revealed that defendant had been issued traffic tickets in two 

separate Dodge Chargers, one white and one black, but found no stolen vehicle report. In 

summary, defendant has established an error in the affidavit, but he has provided nothing to suggest 

that the error was anything other than innocent, or at worst negligent.

Even presuming DuLong’s reference to the black Dodge Charger should have been 

excluded from the warrant affidavit, the search warrant would remain supported by probable cause 

to obtain defendant’s cellphone records. A review of the record indicates that DuLong’s basis for 

obtaining the tower dumps and detailed cellphone records arose from NE’s and ME’s testimony 

that the robber was talking on a cellphone throughout the incident. Additionally, Butram’s 

cellphone number, given to DuLong by Bell, ultimately led to the discovery of defendant’s 

connection to the incident. The reference to the Dodge Charger was essentially secondary, and 

indeed fairly weak on its face given its statement that the robber’s getaway vehicle might have 

been a different model vehicle altogether. On this basis, we conclude that DuLong had sufficient 

probable cause to obtain defendant’s cellphone records without the single provision in the warrant 

affidavit referencing defendant’s vehicle.

Defendant alternatively contends that he received ineffective assistance of counsel, partly 

on the ground that trial counsel failed to correct the trial court’s misunderstanding as to defendant’s 

vehicles at the motion hearing. We will discuss this alternative argument below.

III. EFFECTIVE ASSISTANCE OF COUNSEL

As noted, defendant contends that he received ineffective assistance of counsel because 

counsel failed to correct the trial court’s misunderstanding of his argument seeking a Franks

hearing. Defendant additionally contends that he received ineffective assistance of counsel 

because counsel failed to challenge the reliability of the STR Mix software evidence. We disagree.

A. STANDARD OF REVIEW

“Effective assistance of counsel is presumed,” and “defendant bears a heavy burden of 

proving otherwise.” People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). To establish 

ineffective assistance of counsel, “a defendant must show that counsel’s performance fell below 

an objective standard of reasonableness, and that the representation so prejudiced the defendant as 

to deprive him of a fair trial.” People v Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994). To 

establish prejudice, “defendant must show a reasonable probability that, but for counsel’s

unprofessional errors, the result [of the trial] would have been different.” People v Johnson, 451 

Mich 115, 124; 545 NW2d 637 (1996). Defendant “must overcome the strong presumption that 
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his counsel’s action[s] constituted sound trial strategy under the circumstances.” People v Toma, 

462 Mich 281, 302; 613 NW2d 694 (2000).

Generally, the determination of whether a defendant has been deprived of the effective 

assistance of counsel presents a mixed question of fact and law. People v LeBlanc, 465 Mich 575, 

579; 640 NW2d 246 (2002). However, defendant did not preserve his claim of ineffective 

assistance of counsel by seeking a new trial or an evidentiary hearing in the trial court, People v 

Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000), or by filing a motion in this Court to 

remand. People v Abcumby-Blair, ___ Mich App ___, ___: ___ NW2d ___ (2020) (Docket No. 

347369); slip op at 8. Therefore, this Court’s “review is limited to errors apparent on the record.” 

People v Unger, 278 Mich App 210, 253; 749 NW2d 272 (2008). Although we may and must 

consider any materials provided for the purpose of determining whether it might be proper to 

remand for an evidentiary hearing, People v Moore, 493 Mich 933, 933; 82 NW2d 580 (2013), no 

need to do so is apparent from our review.

B. DNA EVIDENCE

“MRE 702 establishes prerequisites for the admission of expert witness testimony.” People 

v Kowalski, 492 Mich 106, 119; 821 NW2d 14 (2012). Before admitting expert testimony, the 

trial court must establish, in relevant part, that the testimony “is based on reliable data, principles, 

and methodologies that are applied reliably to the facts of the case.” Id. at 120. “Some factors 

that bear on the trial court’s inquiry include: (1) whether the scientific knowledge or technique 

can, and has been, tested, (2) ‘whether the theory or technique has been subjected to peer review 

and publication,’ (3) ‘the known or potential rate of error,’ (4) ‘the existence and maintenance of 

standards controlling the technique’s operation,’ and (5) whether there is ‘general acceptance’ of 

the scientific technique.” People v Muhammad, 326 Mich App 40, 51-52; 931 NW2d 20 (2018), 

quoting Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579, 593-594; 113 S Ct 2786; 125 

L Ed2d 469 (1993). However, “the trial court’s role as gatekeeper does not require it to search for 

absolute truth, to admit only uncontested evidence, or to resolve genuine scientific disputes.” 

Muhammad, 326 Mich App at 52 (quotation marks and citation omitted). “In other words, [t]he 

inquiry is not into whether an expert’s opinion is necessarily correct or universally accepted, it is 

into whether the opinion is rationally derived from a sound foundation.” Id. (quotation marks and

citation omitted). 

Defendant argues that the STR Mix software constituted an unreliable methodology when 

the DNA sample contained four contributors. This Court has already determined that STR Mix 

satisfies the Daubert factors of testability, peer review, a known low error rate, standards 

controlling its operation, and general acceptance in the scientific community. Muhammad, 326 

Mich App at 53-58. Similarly, the Sixth Circuit4recently concluded that STR Mix satisfied the 

Daubert factors of testability, peer review, a low error rate and standards for ensuring a low error 

rate, and general acceptance in the scientific community, leading to widespread admissibility into 

evidence by various courts. United States v Gissantaner, 990 F 3d 457, 463-467 (CA 6, 2021). 

Defendant contends that although STR Mix may be admissible under some circumstances, it has 

 

4 Although this Court is not bound by decisions of any federal courts of appeal, federal court 

decisions may be persuasive. People v Bosca, 310 Mich App 1, 76 n 25; 871 NW2d 307 (2015).
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not been established as reliable when there are four contributors to a DNA sample. Although most 

of the Muhammad analysis applies irrespective of the number of donors, defendant correctly notes 

that there were only two DNA donors in that case. Muhammad, 326 Mich App at 51, 55. 

Conversely, there were three contributors in Gissantaner. Gissantaner, 990 F 3d at 462. 

Nevertheless, it is unnecessary to repeat the thorough analyses conducted by the Muhammad and 

Gissantaner courts; clearly, the reliability of STR Mix as a principle and methodology has been 

well-established.

It appears that defendant conflates the reliability of STR Mix as a principle and 

methodology with the separate question of whether STR Mix was reliably applied in this particular 

case. See Gissantaner, 990 F 3d at 467-468. Defendant points out that even in a case that accepted 

STR Mix as a reliable principle and method in the abstract, the court rejected the application of 

STR Mix where there were four presumed contributors to a DNA sample. United States v Lewis, 

442 F Supp 3d 1122, 1156-1160 (D Minn, 2020). However, the Lewis court only partially rejected 

the STR Mix evidence, largely because the specific lab that performed the testing did not have the 

computational resources to analyze five or more contributors and was suspected to underestimate

the number of total contributors. Id. at 1156-1157. Critically, the Lewis court only found that 

limitation to undermine the ability of STR Mix to exclude persons as possible DNA donors; the 

court admitted the STR Mix evidence to the extent it showed the defendant to be the major DNA 

contributor. Id. at 1156-1160. Thus, defendant is correct in asserting that STR Mix may be 

unreliable as applied under some circumstances, but not under the kind of circumstances at issue 

in this case.

As discussed, Anderson’s initial DNA analysis of the headphones revealed at least four 

DNA profiles. Vitta testified that the Michigan State Police crime laboratory is hampered by the 

same computational limitations as was the laboratory in Lewis. This would impliedly cast doubt 

on the reliability of STR Mix to exclude any particular person from having contributed to the mix. 

However, that was not the purpose of the STR Mix evidence here. Rather, the purpose was to 

confirm what Anderson and Long had already determined: that defendant was a contributor to the 

DNA on the headphones. Vitta’s testimony made it clear that the only conclusion STR Mix could 

draw was that it was vanishingly unlikely defendant had not been one of the DNA contributors. 

Anderson had already determined that there was only one major contributor to the DNA sample, 

which CODIS and Long confirmed was a match to defendant. Ultimately, the significance was 

not to try to determine whether someone else might have handled the headphones, but only whether 

they were linked to defendant.

Because case law clearly establishes the reliability of STR Mix as a tool of inclusion, 

certainly as to a major donor even where there might be more DNA donors than the processing 

laboratory can calculate, any objection by trial counsel would have been futile. This Court will 

not find trial counsel to be ineffective where an objection would have been futile. People v 

Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004). Furthermore, even if defendant had 

objected and obtained exclusion of the STR Mix evidence, the jury would still have been informed 

of the independent finding that defendant was the only major DNA donor on the headphones. 

Consequently, in combination with the extensive other evidence identifying defendant and linking 

him to both the headphones and the robbery, it is highly unlikely that exclusion of the STR Mix 

evidence would have affected the outcome of the trial. Johnson, 451 Mich at 124. Trial counsel 
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was not ineffective for failing to raise an objection that would have been futile and would have 

had little, if any, meaningful effect.

C. FRANKS ARGUMENT CLARIFICATION

Finally, we also conclude that defendant was not denied effective assistance of counsel for 

trial counsel’s failure to clarify the trial court’s understanding of defendant’s argument at the 

Franks motion hearing. A review of the record indicates that trial counsel’s strategy was to focus 

on establishing DuLong’s failure to discover the stolen vehicle report as a false and deliberate 

statement in the warrant affidavit. Even to the extent trial counsel failed to distinguish the white 

and black Dodge Chargers for the trial court’s understanding, defendant fails to establish that it 

constituted ineffective assistance of counsel. As noted, defendant’s assertion that he did not own 

a black Dodge Charger at the time of the incident is simply untrue and unsupported. Again, 

defendant was not denied effective assistance of counsel by counsel’s failure to assert a meritless 

argument.

Affirmed. 

/s/ Amy Ronayne Krause 

/s/ Michael J. Riordan 

/s/ Colleen A. O’Brien