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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED September 15, 2015

V No. 320633 Wayne Circuit Court ANNIE MARIE HUMPHRIES, LC No. 13-001382-FC

Defendant-Appellant.

Before: W ILDER , P.J., and S HAPIRO and Ronayne KRAUSE , JJ.

P ER C URIAM

.

A jury convicted defendant of unarmed robbery, MCL 750.530, 1 and first-degree home invasion, MCL 750.110a(2). The tri al court sentenced her as a fourth habitual offender, MCL 769.12, to prison terms of 6 to 20 years for the robbery convic tion, and 10 to 25 years for the home invasion conviction, to be se rved concurrently. Defendant appeals as of right. We affirm
defendant’s convictions and sente nces, but remand for correctio n of the presenten ce investigation report (“PSIR”) and the sentenci ng information reports (“SIRs”)

.

I

Defendant’s convictions arise out of her role in the robbery o f 81-year-old Robert Jones inside his Highland Park apartment on January 6, 2013. At tria l, the prosecution’s theory was (1)
that defendant aided and abetted an unknown man who entered the victim’s apartment, demanded money, and took $85, based on her knowledge that Jones left his apartment door unlocked so that others could enter to assist him, and (2) that defendant decided to rob the victim after he refused to loan her money.

According to Jones’s testimony, defendant, who lived in Jones’ s apartment complex, entered his apartment at approximately 6:00 or 7:00 p.m. by sim ply opening the door, which she usually did because she was a good friend of Jones’s girlfriend , who was Jones’s caretaker. Jones left the door open for his girlfriend because he did not have an extra key for her.

1 Defendant was charged with armed robbery, MCL 750.529. The ju ry convicted her of the lesser offense of unarmed robbery.-2- Defendant said to Jones, “Bob, let me have $2.00,” and Jones re plied that he did not have $2. She repeated her request, and Jones again told her that he did not have any money. Defendant then left, closing t he door behind her.

A few seconds after defendant left Jones’s apartment, the door opened again and a man walked in. Jones did not see what the man looked like, as his face was covered with the arm of a lighter-colored coat or jacket. The man said, “Bob, give me al l of your money.” Because the man called Jones by his name, Jones thought that he might know the man. Jones initially thought the man was joking, but he then saw that the man had a knife in his left hand. Jones, who was in a wheelchair, became afraid and did not want the man to get behind him, so he kept moving to keep the man in front of him. Jones refused to give the man any money, but the man took $85 from Jones’s pocket. Subsequently, Jones refused to a ccompany the man into the hallway. The man swung the knife at him; when Jones put up his arm to keep his face from being cut, the blade cut his right wrist. Jones then went down stairs, and a woman there encouraged him to call the police. Highland Park Police Office rs Adam Lewis and Lisa Schultz responded to the call.

After the incident, Detective Paul Thomas, the officer in char ge, spoke with the apartment building manager, Ayana Nichols, and learned that surveillance footage was available from cameras placed in common areas in the apartment building. The surveillance footage was recorded on a computer system. After speaking with Nichols, Th omas did not believe that he would be able to obtain a copy of the original footage directly from the survei llance system.
Thomas also learned that the foot age would be saved for only si x days before the system would automatically record over the old footage. In order to preserv e the footage, Thomas’s partner, Detective Terrell Shaw, held his tablet up to the surveillance system’s video screen and used the tablet to record the surveillance video; the officers believed, given the time constraints, that this was the best way to preserve the evidence. 2

At trial, defendant moved in limine to exclude the recording under the best evidence rule. The trial court denied defendant’s motion in limine, and the pr osecution presented the recording of the surveillance footage from the tablet. According to Thom as’s testimony, he viewed the original version and the version recorded on the tablet, determ ining that they appeared to be the

2 At trial, Nichols testified that she did not believe that copi es could be made from the building’s surveillance equipment because there was no way to plug in a co rd to attach it to a computer or another recording device, and the surveillance system did not h ave a disc that could be removed. Nichols contacted the corporate office and the persons who inst alled the system, and she was advised that there was no way to make a direct copy of the reco rding. She testified that the manner in which Officer Terrell Shaw created a copy, i.e., by r ecording the surveillance footage with another device as the video played on the surveillance sys tem, was the only known way to produce or save a copy of the recording. Thomas admitted durin g his trial testimony that he did not directly contact the company responsible for maintaining th e recording equipment to ask about obtaining a copy and acted i n reliance on Nichols’s state ments regarding the availability of copies.-3- same; everything that he had seen on the original system was ca ptured by Shaw’s recording. He did not believe that anything on the recording had been altered , and he denied changing anything on the recording made by Shaw. The date and time on the origin al recording corr esponded to the date and time of the offense. Nichols viewed the copy of the r ecording made on Shaw’s tablet and believed that nothing had been altered from the original ve rsion; the only difference was that the date and timestamps were mor e visible on the original recor ding. Likewise, Nichols viewed the recording at trial and confirmed that it was the same foota ge captured by the surveillance
system.

Thomas also testified regarding the events that transpired on the surveillance video. 3 He indicated that the recording s howed defendant letting a person into the building, walking and getting on an elevator with that person, entering and exiting h er apartment with the same person, and then getting on the elevator again to go to another floor. Based on the video, Thomas
testified that he believed that defendant was associated with t he other person and that defendant did not knock before entering J ones’s apartment. Thomas testif ied that Nichols told him that she was only able to identify defendant in the video, not the man w ho was with defendant. Thomas indicated that the recording di d not show the events that occur red inside Jones’s apartment, but the recording showed the unident ified man leaving the building on his own, without defendant.

Nichols also provided testimony regarding the activities depic ted on the surveillance video, narrating the events as th e jury viewed the recording an d identifying particular aspects of the building and its layout. S he explained that the recording initially showed the building’s parking lot and a side stairwell. Next, the recording showed d efendant letting someone into the building through the side door and walking up the stairs behind the man. The video showed that the man exited the elevator at the same time that defendant got off and followed her into an apartment rather quickly; Nichols stated that they went into th e apartment where defendant was living with her boyfriend’s father. After staying in the apartment for a brief period, defendant
and the man left the unit and entered the elevator on the fourth floor. The man got off somewhere between the fifth and seventh floors, while defendant rode up to the eighth floor, where Jones lived. When the man entered the elevator, he was w earing dark clothing, but when he exited, he was wearing a white hooded shirt. He walked down the hallway in the direction of a stairwell, which anyone could en ter without a key or swipe ca rd. When defendant subsequently exited the elevator , she was carryin g a bag with s omething in it. After checking the surveillance cameras picturing the elevators on all of the othe r floors, Nichols determined that defendant and the man were the only two people who entered that particular elevator. Nichols explained that the recording th en showed defendant walking towa rd the end of the hallway, where Jones’s apartment was located. Defendant entered Jones’s apartment for about 15 to 20 seconds and then walked back out, looking back to her left as s he exited. Nichols then testified that the recording showed a man in a white hooded jacket leavin g Jones’s apartment and exiting down a stairwell to a vehicle parked outside. Nichols indicate d that there was video footage showing where defendant went after she entered the elevator for the second time, but that footage
was not recorded on the tablet.

3 It does not appear from the record that Thomas provided this t estimony while the jury viewed
the video.-4- Lewis also testified regarding his conversation with Jones whe n Lewis arrived at the location following the incident:

Q . What was the nature of the conversation you had first in the lobby?

A . Basically what had occurred. And he had stated that he beli eved that another resident at the location had kind of set him up to get money stolen from him while he was in his apartment.

* * *

Q . All right, now. Based on -- without telling me what he said at this point -- based on what he told you, did you determine that ther e were some persons that you wanted to try to find and speak to?

A . That is correct.

Q . And was one of those persons a female by the name of Annie Humphries?

A . Yes.

Q . Why was that, based on what Mr. Jones told you, that you wan ted to speak to Ms. Humphries?

A . Well, he had stated that -- when I originally spoke with him -- that Ms. Humphries had walked into his apartment unannounced, requested $2.00 to purchase some alcohol.

He had stated that he informed Ms. Humphries that he did not ha ve the $2.00.

At that point he states that Ms. Humphries exited. And as soon as she had exited his apartment door, in came Suspect 1, the unidentified black male that basically had his face covered, and stated, knew him by name.

Told Bob, “Give me your money, Bob. Give me your money.”

And he stated basically that he felt the two of them were invol ved in this together, Ms. Humphries and this unidentified suspect.

Q . And that was the reason that you wanted to speak to Ms. Hump hries?

A . That’s correct.

At sentencing, the defense only identified one factual issue i n the PSIR, indicating that
defendant had no recollection of the 1992 misdemeanor convictio n of possession of counterfeit bank or municipal bills that was listed under her adult history . Although the prosecution indicated that it had no problem with the trial court striking the misdemeanor from the PSIR, the-5- trial court decided not to strike the conviction because the mi sdemeanor did not affect defendant’s sentencing guidelines. The court stated, “[W]e’ll note on the record here that the
defendant contests that she has this. And it’s noted, duly not ed for the record so t hat in the future she can challenge it if she gets information or proof that it’s not her.” Following this exchange,
the trial court noted that it only received sentencing guidelin es for the first-degree home invasion conviction, so it made a copy of the SIR for that conviction an d created a second SIR for the unarmed robbery conviction. Defendant did not raise any object ions to the trial court’s scoring of the sentencing guidelines, incl uding the gaps between her pr evious convictions, which she
committed between 1992 and 2008.

After filing her claim of appeal, defendant filed three motion s to remand. Her first motion requested, inter alia , a Ginther 4 hearing and an evidentiary hearing concerning the scoring of the sentencing guide lines, which this Court denied. People v Humphries , unpublished order of the Court of Appeals, entered November 25, 2014 (Docke t No. 320633). This Court also denied her second motion, filed in propria persona , which requested a Ginther hearing regarding the claims raised in her Standard 4 brief. People v Humphries , unpublished order of the Court of Appeals, entered January 9, 2015 (Docket No. 32063 3). Finally, this Court denied
defendant’s third motion to rema nd, filed through her attorney, which concerned the trial court’s imposition of court costs. People v Humphries , unpublished order of the Court of Appeals, entered March 31, 2015 (Docket No. 320633).

On appeal, defendant raises two issues in her principal brief on appeal and three issues in her Standard 4 brief. We will address each issue separately.

II

Defendant first argues that the trial court erred in admitting the tablet recording of the original video footage. She argues that this evidence was not admissible under the best evidence rule. We disagree.

A trial court’s decision to adm it or exclude evidence is revie wed for an abuse of discretion, but any preliminary questions of law regarding the admissibility of evidence, such as whether a rule of evidence bars admission, are reviewed de novo

. People v McDade , 301 Mich App 343, 352; 836 NW2d 266 (2013). An abuse of discretion occu rs when the trial court’s decision falls outside the range of reasonable and principled o utcomes. People v Yost , 278 Mich App 341, 353; 749 NW2d 753 (2008).

MRE 1002 provides, “To prove the content of a . . . recording, . . . the original . . . recording . . . is required, excep t as otherwise provided by th ese rules or by statute.” Under MRE 1003, “[a] duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2 ) in the circumstances it would be unfair to admit the duplicate in l ieu of the original.” MRE 10 04 states, in pertinent part:

4 People v Ginther , 390 Mich 436, 443; 212 NW2d 922 (1973).-6- The original is not required, and other evidence of the conten ts of a . . . recording . . . is admissible if –

(1) Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the proponentlost or destroyed them in bad f aith; or

(2) Originals Not Obtainable. No original can be obtained by any available judicial proc ess or procedure; . . .

Here, because the original surveillance video was recorded on a system that was not capable of being copied or preserved, and the testimony shows t hat the tablet recording appeared to be the same as the original surveillance video, the tablet r ecording of the original video footage qualified as other evidence of the contents of the orig inal, and the tria l court did not abuse its discretion in admitting the tablet video under MRE 10 04(2).

To the extent that defendant challenges the authenticity of th e recording shown to the jury, we also reject this argument. MRE 901(a) provides that “ [t]he requirement of
authentication or identificati on as a condition precedent to ad missibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” MRE 901(b)(1) provides that authentic ation or identification can be proved by witness “[t]estimony that a matter is what it is claimed to be.” The prosecutor off ered the tablet recording as evidence of the contents of the original s urveillance footage of the eve nts surrounding the charged offense. The evidence that the police used a tablet device to record the original surveillance video, and the testimony of Nichols and Thomas that they viewed both versi ons and they appeared to be the same, was sufficient to authenticate the tablet recording as a copy of the original. Defendant’s contention that the recording method used by the police was que stionable or unreliable does not affect the admissibility of the evidence, but only its weight, which was for the jury to decide.

See People v Berkey , 437 Mich 40, 52; 467 NW2d 6 (1991).

III

Next, defendant challenges the scoring of the sentencing guide lines. As a preliminary matter, we recognize that the holdings of the Michigan Supreme Court’s recent decision in People v Lockridge , ___ Mich ___; ___ NW2d ___ (2015) (Docket No. 149073), are no w potentially outcome-determinative as to any challenge concernin g the sentencing guidelines. In Lockridge , the Court held that “the rule from Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), as extended by Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), app lies to Michigan’s sentencing guidelines and renders them constitutionally deficient,” id . at ___; slip op at 1, meaning that “to the extent that the OV s scored on the basis of facts not admitted by the defendant or n ecessarily found by the jury verdict increase the floor of the guidelin es range, i.e. the defendant’ s ‘mandatory minimum’ sentence, that procedure violates the Sixth Amendment,” id . at ___; slip op at 11. Accordingly,

[t]o remedy the constitutional violation, [the Court] sever[ed] MCL 769.34(2) to the extent that it makes the sentencing guidelines range as sco red on the basis of facts beyond those admitted by the defendant or found by the jury beyond a reasonable doubt mandatory. [The Court] also str[uck] down the requirement in-7- MCL 769.34(3) that a sentencing court that departs from the app licable guidelines range must articulate a substant ial and compelling reason for that departure. [ Id

. at ___; slip op at 2.]

The Court also stated:

[A] guidelines minimum sentence range calculated in violation o f Apprendi and Alleyne is advisory only and that sentences that depart from that thre shold are to be reviewed by appellate courts for reasonableness. To preserv e as much as possible the legislative intent i n enacting the guidelines, how ever, we hold that a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence. [ Id . ___; slip op at 2 (citations omitted).]

Likewise, the Court indicated t hat “[o]ur holding today does no thing to undercut the requirement that the highest number of points possible must be assessed for all OVs, whether using judgefound facts or not.” Id . at ___; slip op at 29 n 28. Therefore, we conclude that, giv en the
continued relevance of the scori ng variables to the Michigan se ntencing scheme, the standards of review traditionally applied to t he trial court’s scoring of th e variables remain viable after Lockridge

.

Defendant preserved her challe nges to the scoring of offense v ariables (“OV”) 1 and 2 and prior record variables (“PRV”) 1, 2, 5, and 6 by challengin g the scoring of these variables in a timely motion to remand. 5 MCR 6.429(C); People v McChester , ___ Mich App ___; ___ NW2d ___ (2015) (Docket No. 318145); slip op at 2. When review ing a trial court’s scoring decision, the trial court’s “fact ual determinations are reviewe d for clear error and must be supported by a preponderan ce of the evidence.” People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to sati sfy the scoring conditions prescribed by statute, i.e., the application of the facts to th e law, is a question of statutory interpretation, which an appe llate court reviews de novo.” Id.

Initially, we reject defendant’ s argument that the trial court ’s scoring of the prior record variables was premised on its imp roper consideration of prior c onvictions that were barred by the 10-year gap rule. MCL 777.50 provi des, in relevant part:

(1) In scoring prior record var iables 1 to 5, do not use any c onviction or juvenile adjudication that preced es a period of 10 or more year s between the discharge date from a convicti on or juvenile adjudication and t he defendant’s
commission of the next offense resulting in a conviction or juv enile adjudication.

(2) Apply subsection (1) by dete rmining the time between the d ischarge date for the prior conviction or juvenile adjudication most rec ently preceding the commission date of the sentencing offense. If it is 10 or more years, do not use

5 As explained infra , to the extent that defendant raises a claim on Apprendi/Alleyne grounds, this argument unpreserved.-8- that prior conviction or juvenile adjudication and any earlier conviction or juvenile adjudication in scoring prior record variables. If it is less than 10 years, use that prior conviction or juvenile adjudication in scoring p rior record variables and determine the time between the commission date of that prio r conviction and the discharge date of the next earlier prior conviction or juve nile adjudication. If that period is 10 or more years, do not use that prior convicti on or juvenile adjudication and any earlier co nviction or juvenile adjudicatio n in scoring prior record variables. If it is less than 10 years, use that prior conviction or juvenile adjudication in scoring prior re cord variables and repeat this determination for each remaining prior conviction or juvenile adjudication until a period of 10 or more years is found or no prior conv ictions or juvenile adjudic ations remain.

(3) If a discharge date is not a vailable, add either the time defendant was sentenced to probation or the length of the minimum incarcerati on term to the
date of the conviction and use thatdate as the discharge date.

(4) As used in this part:

* * *

(b) “Discharge date” means the date an individual is discharge d from the jurisdiction of the court or the d epartment of corrections afte r being convicted of or adjudicated responsible for a crime or an act that would be a crime if committed by an adult.

As further discussed below, the trial court did not consider d efendant’s oldest conviction, a 1992 misdemeanor conviction for possession of counterfeit bank or municipal bills.
Defendant’s next oldest convict ion was a 1992 plea-based convic tion for first-degree retail fraud, MCL 750.356c, for which she received a delayed sentence. In 19 96, she was sentenced to one year in the county jail for that conviction, and she has not ha d a 10-year period free of any convictions since then. In 2004, she was convicted, after plea ding nolo contendere , of larceny from a person, MCL 750.357, and was sentenced to two years’ pro bation. In 2004, defendant was also convicted of possession of less than 25 grams of a con trolled substance, MCL 333.7403(2)(a)( v ), and stealing, taking, or removi ng a financial transaction de vice, MCL 750.157n; she was sentenced to 60 d ays in jail and two years’ p robation. In 2005, she was convicted of jail escape committed by a person lawfully impriso ned for a felony, MCL 750.195(2), and sentenced to 11 months in jail. In 2008 and 20 09, she was sentenced for drug possession, MCL 333.7403(2)(a)( v ), and attempted uttering and publishing, MCL 750.249, MCL 750.92, respectively. The instant offense was committed in 201 3. Because defendant never had a 10-year gap between the discharge date from a conviction and the commission date of the next offense resulting in a conviction, the trial court did not err in considering defendant’s criminal record dating back to her first-de gree retail fraud conviction.

Defendant argues that the trial court erred in relying on a 19 92 misdemeanor conviction for possession of counterfeit bank or municipal bills to assess two points for PRV 5. See MCL 777.55(1)(e) (stating that two points should be scored if the o ffender has one prior misdemeanor conviction or juvenile adjudicatio n). Defendant challenged the accuracy of that conviction at-9- sentencing. Although the prosecutor conceded that she did not have any information to verify the conviction and agreed that it could be stricken, the trial court decided not to strike it or change the scoring of PRV 5; instead, it noted for the record that defendant was contesting the
conviction and that the convictio n did not affect defendant’s g uidelines range. Because defendant challenged the convictio n, the trial court was requir ed to make a finding regarding its accuracy, or determine that a finding was not necessary because it was irrelevant. People v
Waclawski , 286 Mich App 634, 689-690; 780 NW2d 321 (2009). If informati on is found to be inaccurate or irrelevant, it must be corrected or stricken from the PSIR. Id . at 690. The trial court effectively determined that the prior misdemeanor convict ion was not relevant by concluding that “it [did not] affect the ultimate guidelines,” but it erred by refusing to strike it or change the two-point score f or PRV 5, as suggested by the prose cutor.

In the alternative, the prosecu tion argues that defendant’s co nviction for first-degree retail fraud, MCL 750.356c, can be used to support the two-point score for PRV 5. We disagree. First-degree retail fraud is not a misdemeanor, but rather a cl ass E felony. See MCL 777.16r. Although the PSIR indicates that defendant has another misdemea nor conviction for possession
of an altered driver’s licen se, MCL 257.324, that conviction do es not qualify for scoring under PRV 5 because it was not an offense against a person or propert y, a controlled substance or weapon offense, MCL 777.55(2)(a), or an offense arising from th e operation of a vehicle while under the influence of alcohol or a controlled substance, MCL 7 77.55(2)(b). Accordingly,
neither conviction could be used t o support the trial court’s s coring of PRV 5.

Although the trial court erred in scoring two points for PRV 5 , the error does not require resentencing because the score does not affect defendant’s guid elines range. Defendant received a total PRV score of 77 points, placing her in PRV Level F (75+ points) for each of her convictions. See MCL 777.63 (home invasion); MCL 777.64 (unarm ed robbery). A two-point
reduction for PRV 5 would reduce defendant’s total PRV score fr om 77 points to 75 points, but would not change her placement in PRV Level F. Because the sco ring error does not affect the appropriate guidelines range, re sentencing is not warranted. People v Francisco , 474 Mich 82, 89 n 8; 711 NW2d 44 (2006). However, because the trial court e ffectively disregarded the prior conviction for possession of count erfeit bank or municipal bill s, defendant is entitled to have it stricken from the PSIR, People v Thompson , 189 Mich App 85, 88; 472 NW2d 11 (1991), 6 and to have the two-point score for PRV 5 deleted from the SIRs for both convictions, People v

Melton , 271 Mich App 590, 593, 596; 722 NW2d 698 (2006), superseded b y statute on other grounds. Accordingly, we remand for that purpose.

Defendant next argues that the trial court erred in scoring 10 points for PRV 6, which
considers the offender’s status at the time of the offense. MC L 777.56(1)(c) provides that the trial court shall assess 10 points if “[t]he offender is on par ole, probation, or delayed sentence status or on bond awaiting adjudication or sentencing for a fel ony.” The PSIR states that “[a]t

6 Although “[t]he failure to strike disregarded information can be harmless error,” Waclawski

, 286 Mich App at 690, we find that remand is necessary to correc t both the PSIR and the SIRs.-10- the time of the within offense, the defendant was on probation for Attempt Uttering and Publishing.” Defendant asserts that she was sentenced to two y ears’ probation for that offense in 2009, which would have ended before she committed the instant o ffense, but she has not provided any factual support fo r her assertion. Although the P SIR states that defendant pleaded guilty to attempted uttering and publishing in January 2009, an d was sentenced to probation in February 2009, the PSIR does not list the term of probation, an d it indicates that defendant was discharged without improvement after her arrest for the instant offense. “There is a presumption
that the information contained in the PSIR is accurate unless t he defendant raises an effective challenge.” People v Lloyd , 284 Mich App 703, 705; 774 NW2d 347 (2009). Defendant did no t challenge the accuracy of this information at sentencing. Ther efore, because this unchallenged
information indicates that defe ndant was not discharged from pr obation until after she committed the instant offense, we presume that this information is accurate and conclude that the trial court did not err in scoring 10 points for PRV 6.

Defendant’s challenges to the scoring of PRV 1 and PRV 2 are b ased on her contention that the trial court improperly scored the variables in relianc e on prior convictions that could not be considered under the 10-year gap rule, MCL 777.50. As discu ssed previously, there was not a 10-year gap between the discharge date of any of defendant’s pr ior convictions and the commission date of the next offense resulting in a conviction. 7 Thus, the trial court properly
scored PRV 1 and PRV 2.

Defendant also argues that the trial court erred in assessing five points for OV 1 and OV 2. MCL 777.31(1)(e) authorizes a five-point score for OV 1 if “[a] weapon was displayed or implied.” The instructions provide that “[i]n multiple offende r cases, if 1 offender is assessed points for the presence or use of a weapon, all offenders shall be assessed the same number of points.” MCL 777.31(2)(b). MCL 777.32 authorizes a five-point score for OV 2 if “[t]he offender possessed or used a . . . knife or other cutting or st abbing weapon.” Like OV 1, the instructions for OV 2 provide that “[i]n multiple offender case s, if 1 offender is assessed points for possessing a weapon, all offenders shall be assessed the same number of points.” MCL 777.32(2).

Defendant argues that OV 1 and OV 2 should not have been score d because the jury implicitly rejected the fact that a weapon was involved in the offense when it acquitted her of

7 The record indicates that 25 points were properly scored for P RV 1, MCL 777.51(1)(c) (authorizing a score of 25 point s if the offender has one prior high severity felony conviction), on the basis of defendant’s prior c onviction for larceny from a pe rson, MCL 750.357, which is a Class D felony, see MCL 777.16r, and, thus, qualifies as a high severity felony conviction, MCL 777.51(2)(a). In addition, 30 points were properly scored for PRV 2, MCL 777.52(1)(a) (authorizing a score of 30 points if the defendant has four or more prior low severity felony convictions), given defendant’s prior convictions for two count s of possession of less than 25 grams of a controlled substance, MCL 333.7403(2)(a)( v ), escape from jail while serving a felony sentence, MCL 750.195(2), attempted uttering and publishing, MC L 750.249, MCL 750.92, and first-degree retail fraud, MCL 750.356c. See MCL 777.52(2)(a).-11- armed robbery. However, whereas the jury was precluded from co nvicting defendant of armed robbery absent proof beyond a reasonable doubt, facts at senten cing need only be proven by a preponderance of the evidence. Hardy , 494 Mich at 438. Because of the different standards of proof, “situations may arise whe rein although the factfinder de clined to find a fact proven beyond a reasonable doubt for purposes of conviction, the same fact may be found by a preponderance of the evidence for purposes of sentencing.” People v Ratkov (After Remand)

, 201 Mich App 123, 126; 505 NW2d 886 (1993). Moreover, in inter preting the same multiple offender language in MCL 777.31 and MCL 777.33, the Michigan Su preme Court stated, “When the sentencing court assesses points for the first offender, it must assess the ‘highest number of points’ that can be assess ed under the statute.” People v Morson , 471 Mich 248, 260; 685 NW2d 203 (2004). As such, in multiple offender cases, conduct attri butable to another offender is properly considered in the sco ring of OV 1 and OV 2, given that the same score must be assessed
for all offenders. See id . at 252-253, 259-260. Jones testified that the man who robbed him possessed a knife during the offense, which he used to cut the victim’s wrist. This testimony provided a preponderance of evidence in support of the five-poi nt scores for OV 1 and OV 2. Hardy , 494 Mich at 438.

Although defendant does not expressly raise a constitutional c hallenge on Apprendi/Alleyne grounds to the trial court’s scoring of OV 1 and OV 2, defendan t’s argument on appeal does contend that the trial court utilized facts not found beyond a reasonable doubt by the jury or admitted by defendant in order to score OV 1 and OV 2. Thus, to the extent that defendant’s challenge to her sentences can be construed as an Apprendi/Alleyne claim, our review is for plain error affec ting substantial rights because “defendant did not object to the scoring of the OVs at sentencing on Apprendi/Alleyne grounds.” Lockridge , ___ Mich at ___; slip op at 30.

It is apparent that the trial court utilized facts that were n ot established by the jury’s verdict or admitted by defendant in establishing scores for OV 1 and OV 2. And, therefore, a
constitutional error in violati on of the Sixth Amendment result ed, regardless of whether this error
had a substantive effect on defendant’s sentences. Lockridge , ___ Mich at ___; slip op at 31 n 30. Nevertheless, despite this constitutional error, defendant cannot demonstrate prejudice from the trial court’s assessment of five points for OV 1 and OV 2 b ecause a reduction of 10 points would not affect the appropriate guidelines range. See id . at 31 n 30 (“[W]hether [an] error actually increases the floor of a defendant’s minimum sentence range under the guidelines is only relevant to the question of w hether the defendant has suff ered any prejudice.”), 32-33, 36;
see also Francisco , 474 Mich at 89 n 8 (“Where a scoring error does not alter the appropriate guidelines range, resentencing is not required.”). Defendant r eceived a total OV score of 20 points, placing her in OV Level II (10 to 24 points) on the app licable sentencing grids. MCL 777.63 (home invasion); MCL 777.64 (unarmed robbery). Even wit h a 10-point reduction,-12- defendant’s OV score would rema in in OV Level II; accordingly, defendant is not entitled to resentencing. 8

Defendant also argues that def ense counsel provided ineffectiv e assistance when she failed to object to the aforemen tioned sentencing errors. We d isagree.

Because defendant did not raise an ineffective assistance of c ounsel claim in the trial court, and this Court denied her motion to remand for a Ginther hearing, our review is limited to errors apparent from the record. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).

Effective assistance of counsel is presumed, and defendant bear s a heavy burden of proving otherwise. To demonstrate ineffective assistance, d efendant must show: (1) that his attorney’s performance fell below an objecti ve standard of reasonableness, and (2) that this performance so prejudiced him that he was deprived of a fair trial. “To demonstrate prejudice, the defen dant must show the existence of a reasonable probability that, but for counsel’s e rror, the result of the proceeding would have been different.” [ People v Gaines , 306 Mich App 289, 300; 856 NW2d 222 (2014) (citations omitted).]

Defendant cannot establish that she was prejudiced by defense counsel’s failure to object to the trial court’s assessment of points for PRV 5, OV 1, and OV 2 because the scores did not affect defendant’s sentencing guidelines and, as a result, did not affect the outcome of the proceedings. Additionally, as discussed supra , PRV 1, PRV 2, PRV 6 were properly scored. Defense counsel was not ineffective for failing to raise futile objections. People v Unger , 278 Mich App 210, 256; 749 NW2d 272 (2008).

IV

Defendant argues in her Standar d 4 brief that by failing to pr oduce the original surveillance video, the prosecution violated its duty under Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), to disclose all exculpatory evi dence. Defendant also claims that the police acted in bad faith when they failed to preserve potentially useful evidence in
violation of Arizona v Youngblood , 488 US 51; 109 S Ct 333; 103 L Ed 2d 281 (1988), and California v Trombetta , 467 US 479; 104 S Ct 2528; 81 L Ed 2d 413 (1984). We disagre e.

Although defendant objected to the admission of the tablet rec ording at trial, the objection was based only on the best evidence rule; defendant d id not raise a Brady issue in the trial court or challenge wheth er the officers acted in good fai th. 9 An objection on one ground is

8 We conclude that we need not sep arately review defendant’s sen tence for reasonableness because defendant’s sentences did not depart from the applicabl e guidelines range. See Lockridge , ___ Mich at ___; s lip op at 2, 28-29, 36.

9 For the reasons previously discussed in Part II, supra , we reject defendant’s argument in her
Standard 4 brief that admission of the tablet recording violate d the best evidence rule.-13- insufficient to preserve an appellate challenge based on a diff erent ground. People v Bulmer

, 256 Mich App 33, 35; 662 NW2d 117 (2003). Accordingly, defenda nt’s arguments are unpreserved, and our review is limited to plain error affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999); People v Cox, 268 Mich App 440, 448-450; 709 NW2d 152 (2005). To demonstrate such an error, th e defendant must show that (1) an error occurred, (2) the error was clear or obvious, and (3) “the plain error affected [the defendant’s] substantial rights,” which “generally requires a s howing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Carines , 460 Mich at 763.

There is no merit to defendant’s arguments. To establish a Brady violation, a defendant must show that (1) the prosecution suppressed evidence; (2) the evidence is favorable to the accused; and (3) viewed in its totality, the evidence is materi al. People v Chenault, 495 Mich 142, 155; 845 NW2d 731 (2014). To establish a due process viol ation on the basis of a failure to preserve evidence, a defendant must demonstrate that the state acted in bad faith and that the evidence was potential ly exculpatory. People v Heft , 299 Mich App 69, 79; 829 NW2d 266 (2012), citing Youngblood , 488 US at 57-58.

There is no indication in the r ecord that the police suppresse d, destroyed, or lost any evidence. On the contrary, the record shows that the police ac ted to preserve evidence after discovering that the apartment building’s video surveillance sy stem did not have a removable disk or a connection whereby the original recording could be tr ansferred to another recording device, and that the system would automatically record over the original recording after six days. A copy of that recording wa s provided to the defense.

Further, there is no record support for defendant’s argument t hat portions of the original recording were omitted from the tablet copy. Although the date and timestamps did not clearly appear on the tablet copy, both Nichols and Thomas testified th at they viewed both versions and that they appeared to be the same, and Thomas testified that th e tablet recording contained the entirety of the original with r espect to the ev ents surrounding the charged offense. Defendant has not identified any evidence indicating that there were port ions of the original recording that depicted events related to the charged offense that were not in cluded in the tablet recording; in support of her position, she only provides a description in her Standard 4 brief of her movements on the day of the incident, which is not supported by the evide nce in the record, and notes Nichols’s testimony confirming th at video surveillance of defen dant leaving the elevator for the second time was not included in the tablet recording. Contrary to defendant’s characterization of the officers’ purported failure to preserve portions of the surveillance video, we find no indication of intentional suppres sion of evidence or bad faith in the record. See Youngblood , 488 US at 58; see also People v Johnson , 197 Mich App 362, 365; 494 NW2d 873 (1992). Accordingly, defendant has failed to establish that the prosecution withheld exculpatory evidence, or that the police fa iled to preserve potentially exc ulpatory evidence in bad faith.

V

Next, defendant argues in her Standard 4 brief that it was imp roper for Thomas and Nichols to testify regarding matters depicted in the video. During their testimony, the witnesses described the layout of the building and locations depicted in the video and referred to defendant’s appearances in the vi deo. Defendant challenges thi s testimony under MRE 701,-14- which provides that “[i]f [a] witn ess is not testifying as an e xpert, the witness’ testimony 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) helpful to a cle ar understanding of the witness’ testimony or the determination of a fact in issue.” She also a rgues that the witnesses’ testimony invaded the province of the jurors, who were able to view the v ideo themselves to determine what it portrayed. Defendant c oncedes that there was no object ion to the challenged testimony at trial. Accordingly, this issue is unpreserved, and review is l imited to plain error affecting defendant’s substantial rights. Carines, 460 Mich at 763.

Defendant has failed to show a p lain error affecting her subst antial rights. First, the witnesses’ commentary regarding the layout of the building and locations depicted in the video was based on their perceptions of the video and their previous knowledge of the apartment building, which was helpful for the jury to understand events d epicted in the video. In this case, Nichols and Thomas both had person al knowledge of the layout, a s Nichols was familiar with the building because she was the building manager, and Thomas was f amiliar with the building due to his investigation of the offense. Additionally, it is evide nt that Nichols and Thomas both had personal knowledge of the survei llance footage on the recording . MRE 602 (“A witness may not testify to a matter unless evid ence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”). Both were in a better position than the jury to identify the locations of events depicted in the video. This was helpfu l to the jury because of the multiple views of different floors of the building. As such, their test imony was admissible under MRE 701 to help the jury understand the evidence and did not invade the province of the jury. People v Fomby, 300 Mich App 46, 53; 831 NW2d 887 (2013).

Second, it was not inappropriate for Nichols to point out or i dentify defendant on the recordings. As the manager at defendant’s apartment building, Nichols recognized defendant in
the video when she first viewed it after the offense. Because she was personally familiar with defendant, her identification testimony did not invade the prov ince of the jury, especially given the lack of clarity in the surveillance video at certain points due to the lighting. See id . at 52-53; United States v Rodriguez-Adorno , 695 F3d 32, 40 (CA 1, 2012).

However, because there is no indication that Thomas was famili ar with defendant before the offense, his testimony identifying defendant arguably const ituted plain error. Nevertheless,
because Nichols identified defendant when she showed Thomas the video, it is apparent from his testimony, and it would have been clear to the jury, that his r eferences to defendant in the video
were based on Nichols’s identif ication testimony. As a result, even if we assume, arguendo, that Thomas’s testimony constituted plain error, defendant has not s hown that it affected the outcome of the proceedings, as Thomas’s testimony was cumulative to, an d clearly based on, Nichols’s proper identification testimony.

Additionally, defendant argues th at the trial court should not have allowed Thomas to offer opinion testimony because his status as a police officer made his testimony particularly persuasive. However, the trial court instructed the jury that testimony from witnesses who are police officers is to be judged by the same standards used to e valuate the testimony of any other witnesses. “Juries are presumed to follow their instructions.” People v Rodgers , 248 Mich App 702, 717; 645 NW2d 294 (2001). Accordingly, we find no plain e rror affecting defendant’s substantial rights.-15- VI

Finally, defendant argues in her Standard 4 brief that trial c ounsel was ineffective for failing to object to inadmissible testimony. Again, because de fendant did not raise an ineffective assistance of counsel claim in the trial court, and this Court denied her motion to remand for a

Ginther hearing, our review is limited to errors apparent from the lowe r court record. 10
Matuszak, 263 Mich App at 48.

Defendant argues that trial c ounsel was ineffective for not ob jecting to Nichols’s and Thomas’s testimony regarding the building and Nichols’s identif ication testimony. Because we conclude that this testimony was not improper, defense counsel was not ineffective for failing to object. Counsel is not required to make a futile objection. People v Darden, 230 Mich App 597, 605; 585 NW2d 27 (1998). Moreover, even if defense counsel arg uably should have objected to Thomas’s testimony identifying defendant as one of the individu als pictured in the video, defendant has failed to show that he was prejudiced by this pur ported error for the reasons stated
above. Gaines , 306 Mich App at 300. Therefore, defense counsel was not inef fective when she failed to object to the lay opi nion and narrative testimony.

Defendant also asserts that defense counsel was ineffective fo r failing to object to Lewis’s testimony describing what Jones told him about his enco unter with defendant shortly before he was robbed. Defendant argues that the testimony cons tituted inadmissible hearsay. “ ‘Hearsay’ is a statement, other than the one made by the declar ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter a sserted.” MRE 801(c). “[A] statement offered to show why police officers acted as they did is not hearsay.” People v
Chambers , 277 Mich App 1, 11; 742 NW2d 610 (2007), citing People v Jackson , 113 Mich App 620, 624; 318 NW2d 495 (1982). It is apparent from the context of the challenged testimony that it was offered to explain why the police wanted to speak t o defendant, not for its truth. Under these circumstances, defense counsel’s failure to object was not objectively unreasonable. Any objection would have been futile. Darden, 230 Mich App 605.

We affirm defendant’s convicti ons and sentences, but remand fo r correction of the PSIR and SIRs in accordance with this opinion. We do not retain jur isdiction.

/s/ Kurtis T. Wilder /s/ Douglas B. Shapiro /s/ Amy Ronayne Krause

10 Because the record is adequate to address and resolve defendan t’s ineffective assistance of counsel claims, remand for an e videntiary hear ing is not necess ary.