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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED December 1, 2016

v No. 327063 Wayne Circuit Court HAROLD LAMONT WALKER, LC No. 14-007222-01-FH

Defendant-Appellant.

Before: F ORT H OOD , P.J., and G LEICHER and O’B RIEN , JJ.

P ER C URIAM

. Defendant, Harold Lamont Walker, was convicted by a jury of fe lon in possession of a firearm (felon-in-possession) , MCL 750.224f, carrying a conceal ed weapon (CCW), MCL 750.227, and third-offense possession of a firearm during the c ommission of a felony (felonyfirearm), MCL 750.227b, and sentenced as a fourth-offense habitual offender, MCL 769.12, to concurrent prison terms of 46 months to 75 years for the felon- in-possession and CCW convictions, each of which was to be served consecutive to a pr ison term of ten years for the third-offense felony-firearm c onviction. He appeals as of righ t his March 12, 2015 judgment of sentence. We affirm defendant’s convictions and sentences but remand this matter to the trial court for the ministerial task of correcting an error in the Ma rch 12 judgment of sentence.

I. FACTUAL & PROCEDURAL BACKGROUND

Defendant’s convictions arise out of his possession of a firea rm in Detroit on August 14, 2014. While on routine patrol, law enforcement observed three men and one woman standing near a vehicle, drinking beer, and listening to loud music. As the officers approached the four individuals, defendant quickly left the group, ran to the front of the home, and clutched his right side with a hand over his pocket as though he were attempting t o conceal a firearm. Three police officers testified that, after unsuccessfully attempting to ent er the home, defendant removed a firearm from his person and discarded it in a bush. One of the officers specifically testified that the firearm was a revolver. The police recovered a loaded revo lver from that bush shortly thereafter. Defendant was charged with, and eventually convict ed of, the crimes set forth above. Defendant denied ever possessing a firearm; instead, his defens e at trial was that he discarded a beer bottle, not a fir earm, in the bush.-2- II. ARGUMENTS ON APPEAL

Defendant raises a variety of arguments on appeal. First, he argues that reversal is required because the prosecutor impermissibly argued facts not in evidence. Second, he argues that reversal is required because the trial court’s “deadlock” instruction coerced a guilty verdict. Third, he argues that resentencing is required because the tria l court erred in scoring offense variable (OV) 19 at ten points. Fourth, defendant argues that reversal is required because the prosecution presented insufficien t evidence to s upport the jury ’s verdict. Fifth, defendant argues that a remand is necessary to correct his judgment of sentence because it incorrectly indicates that his sentence for the felony-firearm conviction runs consec utive to both his felon-inpossession and CCW convictions. We will address each individua lly below.

Defendant also raises several o ther arguments in a pro se supp lemental brief filed pursuant to Supreme Court Administrative Order No. 2004-6, Stan dard 4. First, defendant argues that reversal is required because the trial court demons trated a bias against him throughout the trial in this matter. Second, defendant argues that reversal is required because his trial counsel failed to call mate rial witnesses, failed to obje ct to various impermissible statements made by the prosecutor during trial, and failed to adequately i nvestigate his case. We will address these arguments indi vidually below as well.

A. PROSECUTORIAL MISCONDUCT

Defendant argues that he was deprived of his constitutional ri ght to due process and a fair trial by the prosecutor’s comment s on a defense witness’s credi bility during rebuttal argument. Specifically, defendant takes issue with the prosecutor’s state ment that Darryl Williams would not “get any type of additional time for having this gun.” Thi s argument was made in response to defendant’s theory that Williams was the individual who thre w the firearm in the bush. Indeed, Williams was called as a defense witness at trial and t estified that he, not defendant, was the person who threw the firearm in the bush. According to def endant, the prosecutor’s argument in this regard constituted an impermissible claim by t he prosecutor that she had special knowledge of the witne ss’s truthfulness.

“[A] prosecutor is free to argue the evidence and any reasonab le inferences that may arise from the evidence.” People v Callon , 256 Mich App 312, 330; 662 NW2d 501 (2003). However, a prosecutor is not permitted to make statements of fa ct to the jury that are not supported by the evidence. People v Stanaway , 446 Mich 643, 686; 521 NW2d 557 (1994). Nevertheless, even if a prosecutor argues facts not supported b y the evidence, it is well established that jurors are presumed to follow their instructio ns, and instructions are presumed to
cure most errors. People v Abraham , 256 Mich App 265, 279; 662 NW2d 836 (2003).

Here, the prosecutor’s comment at issue, i.e., that the witnes s would not “get any type of additional time for having this gun,” was not supported by any evidence presented at trial. Thus, we agree with defendant to the extent that he claims the remark was improper. We disagree, however, that this comment, alone , requires reversal under the facts and circumstances of this case. Defense counsel immediately objected to this improper re mark, the prosecutor did not pursue that argument any further, and the trial court instructe d the jury that the lawyers’ statements were not evidence immediately after the prosecutor c ompleted his rebuttal argument.-3- As indicated above, it is well established that jurors are pres umed to follow their instructions, and instructions are presumed to cure most errors. Abraham , 256 Mich App at 279. To the extent defendant claims that the trial court’s instructions wer e insufficient in this regard, there is nothing in the record that suppo rts that assertion. Indeed, as indicated above, the improper remark was made during the prosecutor’s rebuttal argument, and the trial court gave its jury instructions just minutes later. Accordingly, we conclude that defendant was not deprived of his constitutional right to due process and a fair trial.

B. JURY INSTRUCTIONS

Defendant also argues that the trial court erred in giving a “ deadlock” jury instruction that was materially different than the instruction set forth in M Cr im JI 3.12. Specifically, defendant takes issue with the trial court’s decision to tell the jury, i n response to a note indicating that there would not be “an agreement with more time,” that “that’s not the way this works,” that they would “come back in one hour a nd resume . . . deliberations,” a nd, twice, that “if there’s someone among you who’s failing to follow the instructions or t here’s someone who’s refusing to participate in the process, you can send us a notice and let us know and we can address that.” Defendant claims that this instruction was impermissibly coerci ve rather than encouraging and respectful of the jurors’ beliefs.

When a jury indicates that it is unable to reach a verdict, th e trial court may give supplemental jury instructions and direct the jury to continue deliberations. People v Hardin
, 421 Mich 296, 316; 365 NW2d 101 (1984). A proper supplemental instruction facilitates continued deliberation while avoiding coercion. People v Sullivan , 392 Mich 324, 334; 220 NW2d 441 (1974). However, if the supplemental instruction woul d force a juror to surrender an honest conviction, the instruction is impermissibly coercive. Id

. To determine whether a given instruction is impermissibly coercive, we look to whether the i nstruction has “an undue tendency of coercion— e.g. , could the instruction given cause a juror to abandon his cons cientious dissent and defer to the majority solely for the sake of reaching agree ment?” Hardin , 421 Mich at 314. The instruction “must be examined in the factual context in whi ch it is given” to determine whether there was a coercive effect on the jury. Id . at 315. Additional language will “rarely” be considered a substantial depart ure if it “contai ns ‘no pressure , threats, embarra ssing assertions, or other wording that would cause t his Court to feel that it const ituted coercion.’ ” Id

. (citation omitted).

In this case, the context around the trial court’ s “instructio n” at issue cannot be overlooked. Deliberations beganat 11:19 a.m. At 12:36 p.m., the jury sent a note, which stated as follows: “We are hung, and I don’t believe there will be an agreement with more time.” The trial court respondent as follows:

Well, that’s not the way this works. Your [sic] all heard a f ull day of testimony, and you deliberated for what an hour and fifteen min utes, and now you just give up. That’s not the wa y it works, I’m sending you all to lunch, maybe what you need is some nourishment, other than candy, to help yo u all, you know, have clear heads and review the evidence that you heard.-4- Now, if there’s someone among you who’s failing to follow the instructions or there’s someone who’s refusing to participate i n the process, you can send us a note and let us know that and we can address that , but at this point I’m not inclined to end your deliberations at this point becaus e you had a full day of testimony and you’ve only been at this, discussing it, for o ne hour.

So, I’m going to send you to lunch, maybe sometime apart will help you all to think about things, and then you’ll come back in one hou r and resume your deliberations. If you have any questions, if there is anything that you don’t understand or need clarificatio n on send a note. And again, if there’s one among you or two among you, three among you, who are refusing to foll ow instructions or participate in the proce ss you can let us know that, too.

Remember you are not to discuss this case, when you are anywhe re other than in the jury room cause you’re still a juror. So even if y ou go to lunch together some of you, you can not [sic] discuss this case cause you can only discuss it when you’re all toge ther and when you’re in the jury room.
The jury was excused at 12:41 p.m., resumed deliberations at 1: 40 p.m., and reached a verdict at 3:07 p.m.

We discern nothing impermissibly coercive about these comments by the trial court. The trial court did not require that the jury deliberate for an unr easonable length of time or in unreasonable intervals. Rather, the trial court informed the j ury that it had not deliberated long enough in light of the amount of evidence that was presented in this three-day trial, which included one full day of testimony. Although it is true that t he trial court departed from the standard “deadlock” jury instruc tion, the trial court’s comment s, when reviewed in context, were not coercive as defendant claims. While, in our view, giving the standard instruction would have been more favorable, we simply cannot conclude that these comme nts coerced the jury as opposed to stressed to the jury the importance of engaging in f ull-fledged deliberation. Hardin
, 421 Mich at 321. Accordingly, we conclude that reversal is not required based on these
comments.
While we appreciate the concer ns raised by our dissenting coll eague, we do not agree that reversal is required here. Our dissenting colleague opines tha t, by indicating that it would “address” jurors “who are refusing to follow instructions or pa rticipate in the process,” the trial court essentially “threatened that it would separately ‘address ’ dissenting jurors if informed of their identities[.]” We cannot agree. In our view, the trial court’s statement that it would “address” jurors “who are refusi ng to follow instructions or pa rticipate in the process” reflects its intent to address jurors who were refusing to meaningfully part icipate in deliberations, not its intent to shame those with conflicting views. In short, while the standard instruction would have been more favorable, we are notwilling to conclude that the tr ial court’s failure t o utilize it under the facts and circumstances of this case coerced a verdict.-5- C. OV 19 SCORING

Defendant argues on appeal that resentencing is required becau se the trial court’s tenpoint score for OV 19 was not supported by a preponderance of t he evidence. Specifically, defendant claims that his refusal to provide his name upon arre st, alone, cannot support a tenpoint score for OV 19.

OV 19 addresses the interference with the administration of ju stice. The trial court must score 10 points if “[t]he offender otherwise interfered with or attempted to interfere with the administration of justice.” MCL 777.49(c). In scoring OV 19, a court may consider the defendant’s conduct after the completion of the sentencing offe nse. People v Smith , 488 Mich 193, 200; 793 NW2d 666 (2010). A defendant interferes with the administration of justice by “oppos[ing] so as to hamper, hinder, or obstruct the act or pro cess of administering judgment of individuals or causes by judicial process.” People v Hershey , 303 Mich App 330, 343; 844 NW2d 127 (2013).

In this case, the record does not support defendant’s claim th at the scoring OV 19 was based entirely on his refusal to provide a name. Rather, the s coring of OV 19 was based on the evidence that Williams, the only witness corroborating defendan t’s defense, likely lied on behalf of defendant. As the trial court explained, “they trumped up t hat phony, bogus testimony” and it was not “a coincidence that low-and-behold after that young man spent some time in the Wayne County Jail, all of a sudden he d ecided he wanted to come to co urt and tell a ridiculous version of events.” The record supports this conclusion. Williams onl y admitted to placing the firearm in the bush after his incarceration with defendant, and this te stimony directly contradicted that of the officers. Williams admitted that he looked to defendant as a “role model,” that he has a longstanding relationship with def endant, and that he and defen dant were housed together in jail. This Court has previously recogniz ed that defendan t’s conduct o f “instructing a victim or witness to not reveal or disclose a defendant’s conduct” is sufficient to support a ten-point score for OV 19. See Hershey , 303 Mich App at 343. Accordingly we also conclude that the d efendant’s conduct in this case, which was based on circumstantial evidenc e provided by Williams, was sufficient to support scoring OV 19 at ten points, and defendan t does not challenge the trial court’s reliance on judicially f ound facts in scoring this, or other, OVs. See, e.g., People v Biddles , ___ Mich App ___, ___; ___ NW2d ___ (2016); slip op 4-11.

D. SUFFICIENCY O F THE EVIDENCE

Defendant additionally argues th at the evidence presented by t he prosecution was insufficient to support his fel ony-firearm conviction. Specifi cally, defendant claims that the Legislature did not intend that a felony-firearm conviction be based on a felon-in-possession conviction. As defendant acknowledges, however, both this Cour t, see People v Dillard , 246 Mich App 163; 631 NW2d 755 (2001), and our Supreme Court, People v Calloway , 469 Mich 448; 671 NW2d 733 (2003), have rejected this position, and we a re bound by those decisions. People v Strickland , 293 Mich App 393, 402; 810 NW2d 660 (2011); see also MCR 7.21 5(J)(1). While defendant claims that we are no longer required to followthese decisions in light of our Supreme Court’s decision in People v Bobby Smith , 478 Mich 292; 733 NW2d 351 (2007), we have consistently held otherwise. See, e.g., People v James , unpublished opinion per curiam of the Court of Appeals, issued June 14, 2016 (Docket No. 326393), p 4.-6- E. CONSECUTIVE NATURE OF SENTENCES

On appeal, defendant additionally argues that the sentence for his felony-firearm conviction should run consecutive to his felon-in-possession co nviction only, not his CCW conviction, and the prosecution concedes the same on appeal. W e agree. Accordingly, we remand this matter for the ministerial task of correcting the j udgment of sentence in this regard. See, e.g., People v Taybron , 486 Mich 899; 780 NW2d 795 (2010).

F. JUDICIAL BIAS

In his Standard 4 brief, defendant argues that he was deprived of his constitutional right to a fair trial because the trial court demonstrated a bias aga inst him throughout the trial and in front of the jury. Specifically, defendant claims that he was deprived of his constitutional right to a fair trial when the trial court directly questioned Willia ms, when the trial court commented that defense counsel mischaracter ized a witness’s testimony, wh en the trial court allegedly interfered with defense counsel’s cross-examination of two othe r witnesses, and when the trial court overruled defense counsel’s objections.

“The question whether judicial misconduct denied defendant a f air trial is a question of constitutional law that th is Court reviews de novo.” People v Stevens , 498 Mich 162, 168; 869 NW2d 233 (2015). However, because defendant did not object to the challenged questions, comments, or behavior in the trial court, these issues are unpr eserved and reviewed for plain error affecting substantial rights. People v Sardy , 216 Mich App 111, 117-118; 549 NW2d 23 (1996). In determining whether a trial judge’s conduct deprive s defendant of a fair trial, this Court considers whether the “t rial judge’s conduct pierces the veil of judicial impartiality.” Stevens , 498 Mich at 170. “A judge’s conduct pierces this veil and vi olates the constitutional guarantee of a fair trial when, considering the totality of the circumstances, it is reasonably likely that the judge’s conduct improperly influenced the jury by crea ting the appearance of advocacy or partiality against a party.” Id . at 171. This is a fact-specific inquiry, and this Court cons iders “cumulative effect” of any errors. Id . at 171-172. A single inst ance of misconduct generally does not create an appearance th at the trial judge is biased un less the instance is “so egregious that it pierces the veil of impartiality.” Id . at 171. In evaluating the to tality of the circumstances, this Court should consider a “va riety of factors,” including, b ut not limited to following: the nature of the conduct, the tone a nd demeanor of the trial court throughout the proceedings, the scope of the judicial conduct in the context of the length and complexity of the trial, the extent to which the court’s conduct was directed at one side more than th e other, and the presence of any curative instructions. Id . at 172. A defendant must overcome a heavy presumption of jud icial impartiality when claiming judicial bias. People v Jackson , 292 Mich App 583, 598; 808 NW2d 541 (2011).

With respect to the trial court’s questioning of Williams, the record does not reflect judicial impartiality as defenda nt suggests. After the parties ’ questioned Williams, the trial court briefly questioned Williams regarding his testimony that he, no t defendant, threw the firearm in the bush:

The Court : So that day you didn’t te ll anybody that was your gun, right ?-7- Witness : No, ma’am.

The Court : Because you were scared?

Witness : Yes, ma’am.

The Court : You kept it to yourself?

Witness : Yes, ma’am.

The Court : So . . . I’m sure you must have been shocked when you found out you were getting subpoenae d to come to court right?

Witness : Yes, ma’am. I didn’t know what it was for.

The Court : Because you never told anybody that that was your gun?

Witness : Yes, ma’am. But neither Neff or Chandra held . . . guns.

The Court : Hold on, I didn’t ask you, remember what I said, you can’t just say what you wanna say, all right. You have to answer the questions that are asked, and I didn’t ask you aboutChandra or Neff or anybody, o kay.

Witness : Yes, ma’am.

The Court : I just asked if you ever told anybody that that was your gun that was in those bushes, and your answer to that was no, you n ever told anybody, right?

Witness : Yes, ma’am.

The Court : Okay.

This questioning does not reflect, as defendant suggests, that “the defense was fighting two prosecutors.” Rather, it reflects appropriate questioning by the trial court to “produce fuller and more exact testimony or elicit relevant information.” Stevens , 498 Mich at 173; see also MRE 614(b). The questions asked by the trial court were materi al to questions of fact at issue, i.e., whether defendant possesse d a firearm, limited in scope, and posed in a neutral manner. The fact that this questioning may have been detrimental to defenda nt’s case, alone, does not render the questioning itself improper. People v Davis , 216 Mich App 47, 52; 549 NW2d 1 (1996). Furthermore, the trial court properly instructed the jury that its questions were not evidence and that it should not consider the trial court’s opinion of guilt or innocence. “[T]he presence of a curative instruction does tend to cut against a finding of judi cial bias.” Stevens , 498 Mich at 190 (citation and internal quotati on marks omitted). Accordingly, we discern no error requiring relief with respect to the trial c ourt’s questioning of Williams.

With respect to the trial court’s comment that defense counsel was mischaracterizing testimony, the record does not r eflect judicial impartiality as defendant suggests. Sergeant-8- Matthew Gnatek testified that h e observed defendant “run away f rom a parked car . . . .” Defendant claims that the following exchange, which occurred ba sed on defense counsel’s crossexamination, between defendant and the trial court reflected a bias against him:

Defense Counsel : And you observed my client, sprint away from the group up to the porch?

The Court : That’s a mischaracterizati on, he never said sprint, never.

Defense Counsel : He said fast sprint, Judge.

The Court : No, he didn’t. He said r un, he didn’t say sprint.

Defense Counsel : Okay, your Honor, that was . . . I heard sprint.

The Court : Well . . . we’re not gonna argue. I have ruled.

Defense Counsel : I understand, I’ll move on.

Applying the rules cited above t o this case, it is apparent th at the trial court’s comments were not improper. While admittedly critical, the trial court’ s comments did not pierce the veil of judicial impartiality. Jackson , 292 Mich App at 598. Instead, the trial court attempted to correct what it believed was a mi scharacterization of the witne ss’s testimony. Indeed, the trial court was correct in its belief that Sergeant Gnatek testified that defendant ran away from the parked vehicle. While it is also true that Gnatek later agreed that defendant’s pace was that of a sprint as well, we do not view this statement, alone, as reflec ting a “deep-seated favoritism or antagonism” so as to deprive defendant of a fair trial. Id . (citation and internal quotation marks omitted). Furthermore, as indicated above, the trial court’s s ubsequent instructions presumptively cured any error, Stevens , 498 Mich at 190, and defendant makes little to no effort to overcome this presumption. Accordingly, we discern no error requiring relief with respect to the trial court’s comments to defense counsel.

With respect to the trial court’s alleged interference with de fense counsel’s crossexamination of two other witnesses, the record does not reflect judicial impartiality as defendant suggests. Defendant cites the following exchanges to support h is claim:

Defense Counsel : Okay, and then he goes to retrieve the weapon?

Witness : He went to retrieve it, correct.

Defense Counsel : And you observed him retrieve it?

Witness : Yes

. Defense Counsel : How long did it take him to search for the weapon in the bush?

Witness : Seconds, he just went in and came right out.-9- The Court : Anything else?

Defense Counsel : Just one moment, your Honor.

Defense Counsel : Was there anything else on the porch?

Witness : Not that I recall , just the railings.

Defense Counsel : Do you recall there being chairs, or other beer bottles?

Witness : I don’t recall, no.

Defense Counsel : And you said that your supe rvisor, Officer Gnatek?

Witness : Sergeant Gnatek.

Defense Counsel : Excuse me, Sergeant Gnatek, he alerted you that client had thrown a weapon?

Witness : He yelled it out.

Defense Counsel : Okay, but . . . you didn’t see it first, what came first Officer Gnatek alerting you that a weapon had been thrown or yo u observing that?

Witness : I observed it first.

Defense Counsel : Okay.

Witness : So when he yelled it out, I was like, okay.

Defense Counsel : Just one moment, your Honor.

Defense Counsel : Officer Marek, you said you don’t know if the front door, if you recall it was open?

Witness : It was closed, I don’t know if it was locked or not, but it was closed, it was a scree n door and a regular door.

Defense Counsel : Okay.

Defense counsel : Nothing further, your Honor.

* * *

Defense Counsel : And the reason I ask that, Sergeant Jackson, is within those ten lines that I just read to you, I counted three probab ly’s and four maybe’s.-10- The Court : Is that an argument or a ques tion, I mean what’s the point?

Defense Counsel : The questions a re coming, your Honor.

The Court : Move on.

Defense Counsel : Just a couple . . . .

The Court : I don’t think it’s incons istent, so you can move on.

Defense Counsel : Okay, thank you, your honor.

After additional brief testim ony, the witness was excused.

Here, it is apparent that the alleged interference was not imp roper. It is well-established that the trial court has the inherit authority to control the p roceedings before it. People v Conley
, 270 Mich App 301, 307; 715 NW2d 377 (2006). The record reflect s several separate and brief comments by the trial court in an attempt to prevent the wastin g of time and resources. Defense counsel was permitted to question the witness exhaustively, and the trial court’s brief interjections were nothing more than ordinary. The trial court asked defense counsel whether he had concluded his examination and prohibited defense counsel fr om impermissibly arguing with the witness. These comments were well within the trial court’s discretion. See MRE 611(a); see also People v Sexton , 250 Mich App 211, 221; 646 NW2d 875 (2002). Furthermore, as indicated above, the trial court’s subsequent instructions presumptively cured any error, Stevens , 498 Mich at 190, and defendant makes little to no effort to overcome thi s presumption. Accordingly, we discern no error requiri ng relief with respe ct to the trial cou rt’s alleged interference.

With respect to the trial court’s decision to overrule defense counsel’s objection, the record does not reflect judicial impartiality as defendant sugg ests. Defendant claims that the only reason the trial court overruled defense counsel’s objecti on to the prosecutor’s crossexamination of Williams was “to help [the] prosecution make [th e] defense sole witness look unreliable, an[d] like a harden criminal in the eyes of the jury.” Defendant provi des no factual or legal background for this position; thus, it is abandoned. Jackson , 292 Mich App at 598. Indeed, defendant has not argued, much less persuasively argued, that t he trial court’s legal basis for overruling the objection was improper. Furthermore, as indicat ed above, the trial court’s subsequent instructions presumptively cured any error, Stevens , 498 Mich at 190, and defendant makes little to no effort to overcome this presumption. Accord ingly, we discern no error requiring relief with respect to the trial court’s alleged inte rference.

G. INEFFECTIVE ASSISTANCE

In his Standard 4 brief, defendant also argues that he was dep rived of his constitutional right to the effective assistan ce of counsel. Because defendan t did not raise this argument below, our review of this issue is limited to mistakes apparent on the record. People v Heft , 299 Mich App 69, 80; 829 NW2d 266 (2012). “To demonstrate ineffective a ssistance of counsel, a defendant must show that his or her attorney’s performance fell below an objective standard of reasonableness under prevailing pr ofessional norms and that thi s performance caused him or her prejudice.” People v Nix , 301 Mich App 195, 207; 836 NW2d 224 (2013) (citation omitted)

.-11- “To demonstrate prejudice, a defe ndant must show the probabilit y that, but for counsel’s errors, the result of the proceedings would have been different.” Id . “A defendant must meet a heavy burden to overcome the presumption that counsel employed effect ive trial strategy.” People v Payne , 285 Mich App 181, 190; 774 NW2d 714 (2009).

On appeal, defendant argues that counsel’s performance constit uted ineffective assistance because he failed to call material witnesses, eyewitnesses, and experts. Decisions about what arguments to make, what evidence to present, and whether to cal l witnesses are matters of trial strategy, People v Rockey , 237 Mich App 74, 76; 601 NW2d 887 (1999), a nd “this Court wil l not second-guess defense counsel’s jud gment on matters of trial str ategy,” People v Benton , 294 Mich App 191, 203; 817 NW2d 599 (2011).

With respect to defendant’s argument that defense counsel fail ed to call material witnesses, defendant claims that defense counsel should have ca lled his girlfriend as a character witness, two eyewitnesses, and a fingerprint expert. First, wi th respect to defendant’s girlfriend, defense counsel’s decision not t o call her was the product of r easonable trial strategy in light of the fact that presenting character testimony would have opened the door to defendant’s prior convictions, which included othe r instances of felony-firearm. Rockey , 237 Mich App at 76. Defendant, in hindsight, merely suggests his girlfriend’s testi mony could have proved favorable, but that speculation is insufficient to warrant reversal. Acco rdingly, we conclude that defense counsel’s performance did not f all below prevailing norms.

With respect to the two eyewitnesses, defendant claims they co uld have provided testimony regarding his distaste for firearms and the fact that he threw a beer, not a firearm, in the bush. There is nothing in the record that supports this cl aim, and it is defendant’s, not our, burden to support his appellate claims. Payne , 285 Mich App at 190. Furthermore, the jury was presented with, and rejected, defendant’s beer-bottle theory, and there is nothing in the record to suggest additional testimony of this nature would have made any difference. We would be remiss not to also mention that defendant’s prior convictions, including convictions involving firearms, undermine his claim that he dislikes weapons. Accord ingly, we conclude that defense counsel’s performance did not f all below prevailing norms.

Finally, with respect to the fingerprint expert, defendant cla ims that, had a fingerprint expert determined that his fingerprints were not on the firearm that was found in the bush, the jury would have not convicted him . Again, however, defendant h as failed to provide any factual support for his claim. Payne , 285 Mich App at 190. Indeed, it is equally likely that his fingerprints were all over the firearm based on the record befo re us. Defense counsel’s decision to argue that the prosecution failed to test the gun for finger prints, as opposed to testing it for fingerprints, was less risky. I n fact, defense counsel was thu s permitted to argue that the prosecution’s failure to test for fingerprints would have “clea r[ed] up any doubt,” “but they didn’t do that.” The fact that it proved unsuccessful, alone, does not render couns el’s assistance ineffective. Heft , 299 Mich App at 84. Accordingly, we conclude that defense co unsel’s performance did not fall below prevailing norms.

Defendant also argues that counsel’s performance constituted i neffective assistance because he failed to object to improper comments made by the pr osecutor regarding what Williams had to lose. Prosecutors have great latitude when arg uing at trial. People v Fyda , 288-12- Mich App 446, 461; 793 NW2d 712 (2010). Prosecutors may argue the evidence and all reasonable inferences that arise from the evidence as it relate s to their theory of the case, and they need not state their inferences in the blandest possible l anguage. People v Dobek , 274 Mich App 58, 66; 732 NW2d 546 (2007). Further, an otherwise imprope r remark might not warrant reversal if the prosecutor is responding to the defense counsel ’s argument. Id . at 64.

In this case, it is apparent that the prosecutor’s argument wa s not improper. During trial, Williams stated, for the first time, that he, not defendant, th rew the firearm into the bush earlier in the day. The prosecutor argued that, because Williams would be incarcerated for at least five years, he had nothing to lose by testifying that he possessed t he firearm. This argument was made in response to the defense’s theory that Williams, not def endant, possessed the firearm and was made in hopes of convincing the jury that Williams’s testim ony was untrue. Given its responsive nature and the fact that it was supported by the evi dence, we discern no impropriety with respect to the prosecutor’s argument, and defense counsel cannot be faulted for failing to make a meritless objection. People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010).

Lastly, defendant raises a cursor y claim regarding defense cou nsel’s alleged failure to investigate, but this argument is abandoned. “An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of suppo rting authority.” People v Kelly
, 231 Mich App 627, 640-641; 588 NW2d 480 (1998). “The failure t o brief the merits of an allegation of error constitutes an abandonment of the issue.” People v McPherson , 263 Mich App 124, 136; 687 NW2d 370 (2004). Furthermore, this claim is not supported by the record.

H. TRIAL COURT’S BEHAVIOR

Despite our conclusions above, i.e., that defendant is not ent itled to reversal or resentencing, we do feel it briefly necessary to express our co ncern with comments made by the trial court at times during this case. As identified by our di ssenting colleague, the trial court made several comments that, in our view, were certainly inappro priate. We are most troubled by the trial court’s behavior at sentencing, which included name c alling, taunting, and other inappropriate innuendos. Neverthel ess, we ultimately believe t hat defendant’s convictions and sentences should stand.

III. CONCLUSION

Accordingly, we affirm defendant’s convictions and sentences b ut remand for the ministerial task of correcting the judgment of sentence to refl ect that defendant’s felony-firearm conviction is to be served consecutive to his felon-in-possessi on conviction, not his CCW conviction. We do not retain jurisdiction.

/s/ Karen M. Fort Hood /s/ Colleen A. O’Brien