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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 23, 2016

v No. 323944 Genesee Circuit Court CAVASSEAIRE TIDELL DYKES, LC No. 13-033363-FH

Defendant-Appellant.

Before: S ERVITTO , P.J., and S AAD and O’B RIEN , JJ.

P ER C URIAM

. Defendant appeals as of right his jury trial convictions of fi rst-degree home invasion, MCL 750.110a(2); possession of a firearm by a felon, MCL 750.22 4f; felonious assault, MCL 750.82; possession of a firearm during the commission of a felo ny (felony firearm), MCL 750.227b; unlawful imprisonment, MCL 750.349b; and domestic vio lence, MCL 750.81(2). The trial court sentenced him, as a second habitual offender, MCL 7 69.10, to concurrent prison terms of 120 months to 30 years for first-degree home invasion; 30 mo nths to 71⁄2 years for felon in possession; 28 months to 6 years for felonious assault; 107 mon ths to 221⁄2 years for unlawful imprisonment; and 93 days for domestic violence, with all sente nces to be served consecutively to a two-year term for fe lony firearm. We affirm.

I. FACTS

The complainant and defendant began dating in 2011. According to the complainant, she ended the relationship at some point toward the end of May 2013 after several incidents in which defendant had become physically violent toward her. On June 1, 2013, she was home alone when she heard defendant yelling and knocking on the back door of her house. The complainant testified that he sounded angry, so she yelled through the door that he needed to calm down and leave, and that she would talk to him later. Instead, defendan t broke a window frame near her back door and entered her house. S he ran out the front door. Defendant chased her, grabbed her by the hair, and dragged her back into the house, where he hit her with a gun, and kicked and punched her. He also held her atgunpoint and told her that th e only way she would leave the house was in a “body bag.”

Two responding police officers testified that as they approach ed the house, they could hear two people yelling; however, when they knocked on the door , the voices stopped. After they knocked for several minutes, they announced that they woul d kick the door in, and the-2- complainant then came to the door with scratches, marks and bru ises on her face and body. The officers testified that she was initially evasive in response t o their questions as to the whereabouts of the person who had assaulted her, but she eventu ally told them that defendant was hiding in a bedroom underneath a bed. She also told them t hat defendant had hidden the gun between her mattress and box spri ng. The officers then located defendant and the gun in the designated locations.

II. PROSECUTORIAL MISCONDUCT

Defendant first argues that the prosecutor engaged in instance s of misconduct by eliciting irrelevant and unfairly prejudici al similar acts evidence from the complainant. We disagree.

The complainant explained that when she ended their relationsh ip, she told defendant she was going to have a tattoo of his name covered with a different tattoo. She testified that when he saw her at a tattoo shop on the night before the instant offens es, he assaulted her and that her uncle, the owner of the shop, had to threaten defendant with a gun to end the incident. When the prosecutor questioned the complai nant about this incident, the following exchange occurred:

Q . Was it your understanding [that defendant] didn’t want you t o [have the tattoo covered]?

A . Yeah but we had—we had got into a fight previous to this and he had broke a flat screen TV over my head and stomped on me causing m e to lose a baby I was pregnant for and I had to tell everybody I had an ab ortion. And I told him I was done, like I didn’t want to be with him no more, and I told him I was covering up his name.

Q . Why did you have to tell e verybody you got an abortion?

A . Cause he didn’t want people to know that he—I had to tell ev erybody that I had got sick from diabetes because I’m diabetic, . . . and that I was in the hospital because he didn’t want people to know that he had caus ed me to lose the baby.

The complainant also testified that when she and defendant had lived together at a different residence a few months before the charged offenses, he had “duc t taped” her and shot at her twice.

Defendant argues that this tes timony was other acts evidence t hat was inadmissible under MRE 404(b)(1), and that it was im properly admitted as evidence of his propensity to commit acts of domestic violence. However, prior acts of domestic violence are admissible under MCL 768.27b(1), which provides that “in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’ s commission of other acts of domestic violence is admissible for any purpose for which it is relevant, if it is not otherwise-3- excluded under Michigan rule of evidence 403 [1] .” Our Supreme Court has held that although MCL 768.27b irreconcilably conflicts with MRE 404(b), the statute prevails because it does not “impermissibly infringe on this C ourt’s authority regarding rul es of practice and procedure under Const 1963, art 6, § 5.” People v Watkins , 491 Mich 450, 455-456; 818 NW2d 296 (2012). 2 To the extent these other acts of domestic violence would have bee n inadmissible under MRE 404(b)(1), they were nonetheless admissible under MCL 768.27b u nless barred by MRE 403; “evidence admissible under MCL 768.27a remains subject to MRE 403.” Watkins, supra , at 456.

Defendant also argues that this evidence was inadmissible under MRE 403. We do not agree that the evidence was more prejudicial than probative. E vidence of other acts of domestic violence is admissible under 768.27b for any purpose, subject t o MRE 403, including to prove a defendant’s propensity to commit the crime. MCL 768.27b(1). T hus, defendant’s argument that the evidence was inadmissible be cause it allowed the jury to in fer that he had a “bad character” fails. Moreover, because, as discussed below, other evidence w as sufficient to support defendant’s convictions for the c harged offenses, we conclude t hat any prejudicial effect of the complainant’s testimony regarding defendant’s alleged other act s did not adversely affect the fairness or integrity of the proceedings. People v Thomas , 260 Mich App 450, 454; 678 NW2d 631 (2004).

Defendant argues next that th e prosecutor committed misconduct when she argued that he was in possession of the handgun found during the police searchof the complainant’s house. During closing argument, the prosecutor stated, “there’s no que stion [defendant] was possessing this weapon. And then where was the weapon when he was arreste d? It was right next to him underneath the mattress of the bed he was hiding underneath.” The prosecutor further argued that defendant had possession of the gun because “[t]he police officers saw it in his possession,” and that one of the o fficers had testified that “when they pull ed him out from . . . under the bed, a couple bullets came rolling out with him. [Defendant] had the gun.” Defendant claims that the testimony presented at trial d id not support the prosecutor’s s tatements. However, one of the police officers who searched the complainant’s house testified that when they pulled defendant from underneath the bed some bullets that were on the floor “ki nd of rolled out” along with him. The officers also testified that the weapon was found in the be d underneath which defendant was hiding. Thus, defendant’s assertion that the prosecutor’s comm ents were not based on the evidence is not accurate. In addition, the prosecutor’s statem ent that defendant’s proximity to the weapon constituted possession is supported by People v Hill , 433 Mich 464, 470-471; 446

1 MRE 403 provides that relevant “evidence may be excluded if i ts probative value is substantially outwei ghed by the danger of unfair prejudice, con fusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, o r needless presentation of cumulative evidence.”

2 Watkins analyzed the effect of MCL 768.27a on MRE 404(b). Watkins, supra

, at 455-456. In People v Mack , 493 Mich 1, 3; 825 NW2d 541 (2012), the Court held that its d ecision resolving the conflict between the court rule and the statute in Watkins fully controlled in Mack as to MCL 768.27b.-4- NW2d 140 (1989), where our Supreme Court held that “a defendant has constructive possession of a firearm if the location of the weapon is known and it is r easonably accessible to the defendant. Physical possession i s not necessary as long as the defendant has constructive possession.” The evidence demons trated that defendant had cons tructive possession of the firearm found in the complainant’s home pursuant to Hill . Thus, the prosecutor’s comments were properly based on the evidence, and did not constitute mis conduct.

Lastly, defendant asserts that the prosecutor committed miscon duct by failing to inform the jury that the complainant had “prior and pending criminal o ffenses of dishonesty” and had “previously made false accusations of abuse after fights with t he father of her child.” However, even if it could be said that the prosecutor had a duty to pres ent such evidence, defendant does not provide any evidence of the alleged convictions or the alle ged false accusations. Thus, there is no factual predicate for this argument.

III. INEFFECTIVE ASSISTANCE 3

Defendant next maintains that his counsel provided ineffective assistance. The accused has the right under the federal and state Constitutions to the effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20; Strickland v Washington , 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). A defendant bears a heavy burden to show that counsel made errors so serious that he was not perform ing as the counsel guaranteed bythe Sixth Amendment, and the defendant must overcome a strong presumption that counsel’s per formance constituted sound trial strategy. People v McGraw , 484 Mich 120, 142; 771 NW2d 655 (2009), citing Strickland,
supra , at 668. “Moreover, the defend ant must establish prejudice, i .e., a reasonable probability that but for counsel’s error, t he result of the proceeding woul d have been different.” Id.

Defendant first claims that trial counsel was ineffective for failing to call six “res gestae” witnesses who would have testified that he and the complainant lived together such that he could not have committed a home invasion at her residence. We note that, although defendant refers to the witnesses as “res gestae” witn esses, there is no evidence that the individuals identified in his Standard 4 brief were present at the scene of the incident. De fendant also does not indicate that he informed trial counsel about th e existence of these witnesse s. Counsel could not be expected to call witnesses whose existence was unknown to him. Moreover , even if counsel was aware of these witnesses, he may have decided it was not in the interest of the defense to call them. “Decisions regarding what evidence to present and whether to ca ll or question witnesses are presumed to be matters of trial strategy, and this Court will n ot substitute its judgment for that of counsel regarding matters of trial strategy.” People v Davis , 250 Mich App 357, 368; 649 NW2d 94 (2002) (citations omitted). This Court has held that “the f ailure to call witnesses only constitutes ineffective assist ance of counsel if it deprives th e defendant of a substantial defense.” People v Dixon , 263 Mich App 393, 398; 688 NW2d 308 (2004) (citation omitted) . The record indicates that defense counsel s ought to show that defendant an d the complainant were still

3 Defendant previously brought a motion to remand for a hearing on the issue of ineffective assistance of counsel, which we denied. People v Cavasseaire Tidell Dykes , unpublished order of the Court of Appeals, e ntered June 5, 2015 (Docket No. 32394 4).-5- involved in a romantic relations hip when the offenses occurred, and that defendant was welcome to visit her home. This theory achieved much the same purpose— i.e., it sought to establish that defendant did not commit home invasion by entering the complain ant’s home against her wishes. Defendant has not shown that he was deprived of a substantial d efense by counsel’s supposed failure to call the witnesses. Id.

According to defendant, counsel was also ineffective for failin g to impeach the complainant with evidence of her convictions for criminal offen ses of dishonesty, as well as with inconsistent statements from the preliminary examination and tr ial. As discussed, defendant has not identified or provided eviden ce of the offenses that the co mplainant allegedly committed. Because he has failed to offer any proof that the complainant c ommitted an offense of dishonesty, defendant has not shown that trial counsel was inef fective for failing to impeach her with evidence of these offenses.

Similarly, defendant does not ide ntify allegedly inconsistent s tatements made during the preliminary examination and trial. Defendant claims in his Standard 4 brief that the complainant testified at the preliminary examination that he lived with her at the home where the offenses occurred, and that she testified at trial that he had keys to h er house. However, the complainant did not testify at preliminary examination that she and defendant lived together. Rather, she testified at the preliminary examination and at trial that alth ough she and defendant had lived together at other addresses, they did not live together at the time of the offenses, and that defendant had never lived at that residence with her. She test ified further that defendant spent the night at her home about once a week, but he would call befo re visiting and she would unlock the door for him. Because defendant’s assertions about the com plainant’s inconsistent statements are not supported by th e record, there has been no s howing that defense counsel was ineffective for failing to impeach the complainant on this basi s. Defendant’s arguments do not overcome the presumption that counsel was effective. See McGraw , 484 Mich at 120.

Defendant’s arguments that counsel was ineffective for failing to object to the admission of other acts evidence fails be cause, as indicated in section I I. above, the objection would have been futile. Counsel is not ineffective for failing to make a futile objection. People v Thomas

, 260 Mich App 450, 457; 678 NW2d 631 (2004).

IV. INSUFFICIENT EVIDENCE

Next, defendant argues in his Standard 4 brief that the eviden ce was insufficient to support his conviction for first-degree home invasion because h e claims there was evidence to support his assertion that he and the complainant lived togethe r at the address where the offenses occurred. As previously discussed, no evidence was presented t o support this claim, and we are not persuaded by defendant’s assertions to the contrary. Notab ly, the complainant testified that defendant “busted out” a window in order to enter her house aft er she refused to admit him, and one of the police officers testified that a window near the bac k door of the house was cracked. Defendant does not explain why, if he resided there, he was una ble to enter the home through either the front or back doors. T he complainant’s testimony an d reasonable inferences arising from the evidence were sufficient proof that defendant committe d home invasion when he entered the complainant’s residence. People v Bennett , 290 Mich App 465, 472; 802 NW2d 627-6- (2010) (holding that circumstantia l evidence and reasonable inf erences arising from that evidence may constitute proof of the elements of the crime).

Defendant also argues that there was insufficient evidence to support his convictions for felon in possession of a firearm a nd felony firearm. In lieu o f argument, defendant cites People v Ben Ray Williams , 212 Mich App 607; 538 NW2d 89 (1995), and People v Wolfe , 440 Mich 508; 489 NW2d 748 (1992). In Ben Ray Williams , the police searched the defendant’s residence while he was not at home, and found cocaine and a firearm in hi s bedroom. Ben Ray Williams,
supra , at 608. This Court agreed with the defendant that he did not have actual or constructive possession of the firearm when it was found because “a person a way from home cannot be deemed in possession of a firearm found in his house.” Id. at 609, 611. However, our Supreme Court reversed this decision in People v Burgenmeyer , 461 Mich 431, 438-439; 606 NW2d 645 (2000), holding that the felony fi rearm statute prohibits actua l or constructive possession of a firearm at the time the felony offense was committed, not at th e time of arrest. Applying Burgenmeyer to the instant case, the proper question is whether defendant p ossessed a firearm at the time he committed the felony offenses. The complainant’s t estimony, in addition to the discovery by police officers of a handgun during defendant’s arrest, was sufficient evidence that defendant possessed a gun during the commission of first-degree home invasion and unlawful imprisonment. In addition, the police officer’s testimony that the gun was found near defendant during their search of the complai nant’s residence also establi shed constructive possession.

Our decision in Wolfe also does not support defendant’s argument. In Wolfe , police officers searched an apartmentwhere an undercover officer had recently purchased crack cocaine and found the defendant and five o ther people, along with drug paraphernalia and a shotgun. Wolfe, supra , at 511. The defendant was arrested, searched, and found to b e in possession of a beeper, a key to the back door of the apartment, and cash, incl uding two $5 bills that had been used for the controlled cocaine purchase by the undercover offi cer. Id. at 512. Another man found in the apartment was also arrested and searched by police , and an extra shotgun shell was found on his person that matched the firearm found in the apartment. Id. The Supreme Court affirmed this Court’s decision reversing the defendant’s convic tion for felony firearm, and concluded that there was no evidence beyond the defendant’s pre sence in the apartment “that he had any role in obtaining the gun or in making it available dur ing commission of the underlying felony.” Id. at 527. Mere presence was “insufficient proof of possession o f a firearm during the commission of a felony.” Wolfe, supra , at 527. However, Wolfe is distinguishable from the instant case because the evidence established more than defendant’s mere “presence;” it showed that he possessed a gun during th e commission of the offenses. The complainant testified that defendant assaulted her with a gun while dragging her into her house, and that he held her at gunpoint and threatened to kill her while holding her in the ho use. Although only the complainant testified that she s aw defendant with a gun, her te stimony, along with police testimony that the gun and ammunition were found near defendant when he was arrested, was sufficient to show that defendant possessed the gun during the commission of the offenses. Bennett, supra , at 472.

V. SPEEDY TRIAL

Defendant asserts in his Standard 4 brief that his rights were violated under the “180-day speedy trial rule.” However, defendant also states that he rec ognizes that the 180-day rule,-7- which is set forth at MCL 780.131 and MCR 6.004(D)(1), is not a pplicable to him because it applies only to inmates in state prisons who are awaiting trial . Thus, defendant asserts that he is relying “upon the Federal and St ate Constitutions,” as well as MCL 768.1, in support of his argument.

The right to a speedy trial is guaranteed by both the United St ates and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20. The right is also enforced by statute, MCL 768.1, and court rule, MCR 6. 004(A). “[T]he federal and st ate constitutions and Michigan statutory law guarantee criminal defendants a speedy trial with out reference to a fixed number of days.” People v McLaughlin , 258 Mich App 635, 644; 672 NW2d 860 (2003). In People v Cleveland Williams , 475 Mich 245, 249, 261; 716 NW2d 208 (2006), our Supreme Cour t held that whether a defendant’s right to a speedy trial has been vio lated is determined by the balancing of four factors set forth in Barker v Wingo , 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972): “(1) the length of delay, (2) the reason for delay; (3) the defendant’s a ssertion of the right, and (4) the prejudice to the defendant.” When the delay between arrest and trial is less than 18 months, as in the instant case, the defendant bears the burden of proving prejudice. People v Rivera , 301 Mich App 188, 193; 835 NW2d 464 (2013). Defendant does n ot offer argument as to each of the factors, but asserts that he was cle arly prejudiced by the delay and so is entitled to reli ef. We disagree.

Length of Delay

Approximately 14 months elapsed between the date of defendant’ s arrest and the commencement of trial. Defendant asserts that a “delay approac hing one year is presumptively prejudicial,” citing Doggett v United States , 505 US 647; 112 S Ct 2686; 120 L Ed 2d 520 (1992). However, in Doggett the United States Supreme Court stated that “[d]epending on th e nature of the charges, the lower courts have generally found po staccusation delay ‘presumptively prejudicial’ at least as it approaches one year.” Id. at 652 n 1. But inPeople v Cain , 238 Mich App 95, 112; 605 NW2d 28 (1999), this Court held that “a delay of eighteen months or more . . . is presumed prejudicial and places a burden on the prosecutor t o rebut that presumption.” Because the length of the delay in the instant case was less th an 18 months, this factor does not weigh in defendant’s favor, and he must establish that he was p rejudiced by the delay.

Reason for Delay

Defendant asserts that his attorneys were at fault for failing to assert a speedy trial violation. The record does not indicate that defendant formall y demanded a speedy trial as required by Cain , but the trial court indicated ata pretrial hearing that defe ndant had complained about the delay before the commencement of trial. The record a lso indicates that defendant asked the court to appoint new c ounsel, and affirmed that he un derstood that his case would take longer to go to trial if he proceeded with his request. Becaus e defendant acquiesced to an additional period of delay before trial in order to obtain new counsel, we find that this factor weighs against him.-8- Defendant’s Assertion of His Right

As aforementioned, defendant did not formally assert his right to a speedy trial prior to trial. In Cain , we held that a defendant must make a formal demand for a spee dy trial in order to preserve his or her right for appellate review. Cain, supra , at 111. Defendant argues that this Court should find that he asserted his right to speedy trial ba sed on his desire tha t the trial court’s pretrial release order with electronic tether be enforced. Def endant further asserts that he informed both of his trial attorneys that he desired a speedy t rial. However, the record indicates that defense counsel attempted to obtain defendant’s pretrial r elease on electronic tether pursuant to the trial court’s order, but the request was denied by jail officials based on their determination that defendant was not a candida te for pretrial release due to past violations. We do not agree with defendant that the court’s order, or defendant’s desire to enforce it, was somehow equivalent to the assertion of his right to a speedy trial. Si milarly, we do not agree that defendant’s claim that his trial counsel was aware of his desir e for a speedy trial was sufficient to establish his assertion of this right. Moreover, even if defen dant had formally asserted his right to a speedy trial in a timely fashion, he would still be requir ed to prove prejudice because the delay between his arrest and trial was less than 18 months. Rivera, supra , at 193; Cain, supra , at 112. This factor does not wei gh in defendant’s favor.

Prejudice to the Defendant

A delay may prejudice either a d efendant’s person or defense. Cain, supra , at 114. “Prejudice to [the defendant’s] person would take the form of o ppressive pretrial incarceration leading to anxiety and concern. Prejudice to his defense might include key witnesses being unavailable,” or otherwise being unable to adequately prepare h is case. People v Collins , 388 Mich 680, 694; 202 NW2d 769 (1972). Defendant argues that his defense was prejudiced by the delay because he was unable to “ga ther” further witnesses and f avorable evidence that his attorneys were unable or not willing to obtain. According to d efendant, these witnesses included “neighbors to the home that was shared by the defendant and com plainant,” and a “hospital nurse’s report” that defendant had once broken a window in the complainant’s home to “rescue the unconscious complainant.” De fendant also claims that he wa s prejudiced by his inability to obtain his choice of counsel due to his pretrial confinement. Defendant’s assertions do not demonstrate that he was prejudiced by the delay.

Defendant claimed that trial counsel was ineffective for failin g to call witnesses who could testify that he lived in the residence that were willing and available to testify. Thus, according to defendant, the delay did not affect his ability to secure witnesses who could support his claim that he could not have committed home invasion becaus e he lived in the home. The supposed report of a “hospital nurse” on an unrelated matter in which defendant assisted the complainant during a medical emergency was not relevant to his defense. Regardless, this evidence was introduced at tria l through the complainant’s test imony that defendant had assisted her when she was unconscious by entering her home through a win dow. The nurse’s report on this point would have been cumul ative. Finally, defendant does not explain how his confinement prevented him from obtaining the counsel of his choice. Defend ant’s first counsel was retained, and he asked the court to replace him with appointed counsel. Without further explanation, it is unclear how defendant’s pretrial incarceration prevented him fr om securing counsel. By itself, incarceration does not establish prejudice “unless there is evi dence of impairment to the-9- defense.” See Cleveland Williams, supra , at 264. Defendant has not established that his defense was prejudiced by the delay.

Defendant has also failed to demonstrate prejudice to his perso n as a result of the delay. Although he has asserted that the delay caused him anxiety, anx iety alone is insufficient to support a violation of the defendant’s right to a speedy trial. Collins

, 388 Mich at 694; People v Gilmore , 222 Mich App 442, 462; 564 NW2d 158 (1997).

VI. JURY INSTRUCTIONS

At trial, defendant r equested a jury inst ruction on third-degr ee home invasion. According to defendant, the instruction wa s appropriate because he was ch arged with committing domestic violence, a misdemeanor, during the home invasion. The trial c ourt denied the request based on its finding that as a type of assault, domestic violence was sp ecifically included as an element of first-degree home invasion, so an instruction on third-degree h ome invasion was not appropriate. On appeal, defendant argues that third-degree home invasion is a necessarily included lesser offense of first-degree home invasion, and that because there w as evidence to support the lesser offense, the trial court erred by denying the instruction. We disagree, and conclude that the trial court properly instructed the jury on first-degree home invasio n.
MCL 750.110a(2) sets forth the ele ments of first-degree home i nvasion:

(2) A person who breaks and enters a dwelling with intent to c ommit a felony, larceny, or assault in the dwelling, a person who enter s a dwelling without permission with intent to commit a felony, larceny, or assault in the dwelling, or a person who breaks and enters a dwelling or enters a dwelling wi thout permission and, at any time while he or she is entering, present in, or ex iting the dwelling, commits a felony, larceny, or assault is guilty of home invasio n in the first degree if at any time while the person is entering, present in, or exi ting the dwelling either of the following circumstances exists:

(a) The person is armed w ith a dangerous weapon.

(b) Another person is lawfu lly present in the dwelling.

MCL 750.110a(4) sets forth the elements of third-degree home invasion, in pertinent part, as follows:

(4) A person is guilty of home invasion in the third degree if the person does either of the following:

(a) Breaks and enters a dwelling with intent to commit a misde meanor in the dwelling, enters a dwelling without permission with intent to commit a misdemeanor in the dwelling, or breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering , present in, or exiting the dwelling, commits a misdemeanor.-10- “[A] requested instruction on a necessarily included lesser off ense is proper if the charged greater offense requires the jury to find a disputed fa ctual element that is not part of the lesser included offense and a rational view of the evidence wou ld support it.” People v Cornell

, 466 Mich 335, 357; 646 NW2d 127 (2002). In People v Wilder , 485 Mich 35, 37; 780 NW2d 265 (2010), our Supreme Court held that in some circumstances, third-degree home invasion is a necessarily included lesser offe nse of first-degree home invasi on. In the instant case, however, an instruction on third-degree home invasion as a lesser includ ed offense was not appropriate because two undisputed elements of first-degree home invasion w ere present and they were not elements of third-degree home i nvasion: first, that defendant committed an assault or intended to commit an assault while in the dwelling; and second, that defen dant was armed with a dangerous weapon and/or another person was lawfully present in the home. MCL 750.110a(2), (4). Defendant assaulted the complainant and she was lawfully presen t in the home when he entered it; thus, an instruction for third-degree home invasion was not appropriate because no disputed factual element was part of the greater charged offense that wa s not part of the lesser. Cornell

, 466 Mich at 335. Defendant’s contention that he was entitled t o the instruction because the assault was the misdemeanor offense of domestic violence is not persuasive. Domestic violence is a crime of assault. MCL 750.81(2). Because assault is spec ifically included as an element of first-degree home invasion, the tri al court’s instructions were proper. See MCL 750.110a(2).

VII. OVS 8 AND 13

Defendant argues that the trial court erred in scoring Offense Variable (OV) 8 at 15 points because the basis for the trial court’s decision was unl awful imprisonment for which he was separately charged, convicted and sentenced. Defendant arg ues further that the offense variables should be scored based only on the sentencing offense unless otherwise provided in the particular variable being scored, citing McGraw , 484 Mich at 133. We do not agree that this portion of the Court’s opinion in McGraw is applicable to the instant case.

In McGraw , our Supreme Court considered “whether the offense variables s hould be scored solely on the basis of c onduct occurring during the sent encing offense or also using conduct occurring afterward.” McGraw , 484 Mich at 122. The defendant in McGraw broke and entered into an unoccupied retail store and stole merchandise; after leaving the scene of that offense, the defendant was later arrested following a police ch ase. Id. The defendant pleaded guilty to three counts of breaking and entering a building with intent to commit larceny in exchange for the dismissal of other charges, including fleeing and eluding the police. Id. at 122- 123. The trial court scored OV 9, number of victims, MCL 777.3 9, based on its finding that the defendant had put at least two victims in danger while he was f leeing from the police. Id. at 123. The defendant argued that “only c onduct occurring during the of fense of which the defendant was convicted may be considered.” McGraw, supra , at 124. The Court agreed, and held “that a defendant’s conduct after an offense is completed does not relate back to the sentencing offense for purposes of scoring offense variables unless a variable spe cifically instructs otherwise;” “[o]ffense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable.” Id. at 122, 133-134.

McGraw does not prevent a trial court from scoring the offense variab les based on conduct that occurred simultaneously with the charged offense, and defendant held the complainant at gunpoint during the commission of the home invas ion. In addition, although the-11- trial court did not explain its reasons for scoring the variabl e on the record, we find that a score of 15 points for OV 8 was justified base d on the fact that defe ndant asported the victim to a place of greater danger when he dragge d her back into the house after she attempted to flee. MCL 777.38(1)(a). Because the evidence supported the trial court’s score of 15 points for OV 8, defendant is not entitled t o relief on this issue.

Defendant also argues that the trial court improperly scored 25 points for OV 13, which addresses a continuing pattern of criminal behavior. MCL 777.43 . Twenty-five points should be scored where “the offense was pa rt of a pattern o f felonious cr iminal activity involving 3 or more crimes against a person.” MCL 777.43(1)(c). Defense counsel a rgued at sentencing that the score was inappropriate because this variable was intended to a pply to “more than one victim and more than one [criminal] transaction” and in the instant ca se, all of the offenses flowed out of a single transaction with a s ingle victim. On appeal, defen dant also argues that to the extent the trial court considered his prior felony conviction for poss ession of a controlled substance, MCL 333.7403(2)(a)(iv), in scoring OV 13, its decision was impr oper because his prior offense was not a crime against a person as required by the statute for scoring of the variable. We conclude that 25 points was an appropriate score for OV 13.

The record does not indicate that the trial court considered de fendant’s conviction for possession of a controlled substa nce in scoring OV 13. The court stated that its decision was based on the fact that “[t]here w as more than three . . . felon ious acts right in this case . . . . Let’s try home invasion first degree. Let’s try assault with a dange rous weapon. Let’s try unlawful imprisonment. . . . not to mention the felony firearm and the f elon in possession.” Thus, defendant’s argument that the trial court may have improperly c onsidered his controlled substance conviction is no t supported by the record.

The trial court did not err when it based the score for OV 13 o n defendant’s convictions in the instant case. In People v Gibbs , 299 Mich App 473, 487-488; 830 NW2d 821 (2013), we held that multiple concurrent offenses arising from the same in cident are properly used in scoring OV 13. The defendant in Gibbs participated in an armed robbery involving three victims. Id. at 478-479. The sentencing court scored OV 13 at 25 points based on the defendant’s convictions for two counts of armed robbery and one count of unarmed robber y. Id. at 487. We rejected the defendant’s argument that 25 points were not appropriate becaus e “his convictions arose out of one incident,” and concluded that multiple concurrent offenses arising from the same incident are properly used in scoring OV 13. Id. at 487-488. We also noted that MCL 777.43(1)(c), unlike other subsections of the statute, did not limit the “trial cour t’s ability to score for more than one instance arising out of the same criminal episode.” Gibbs, supra , at 488. Defendant’s argument that his case is distinguishable from Gibbs because the latter case involved multiple victims is not persuasive. There is no such requirement in the language o f the statute, and we did not read this requirement into the statute in Gibbs . The trial court properl y scored 25 points for OV 13.

VIII. COURT COSTS

Defendant does not challenge the court’s authority to impose c osts, but in his Standard 4 brief asserts that he cannot affo rd the $520 in court costs tha t were imposed in this case. The court also assessed a late fee of $104, for a total of $624. A ccording to the record, defendant has paid $166.34 and owes a balance of $457.66.-12- MCL 769.1k(1) authorizes imposition of costs on defendants who have pleaded or been found guilty. The statute does not require the court to determ ine whether a defendant has the ability to pay the costs. According to the record, the trial c ourt ordered defendant to pay the $130 crime victim fee, as required by MCL 780.905(1)(a). The trial court also imposed minimum state costs for each of defendant’s five felony convict ions, as well as for his misdemeanor conviction for dome stic violence, totaling $390. S ee MCL 769.1j(1)(a)-(b) (providing that a court may impose minimum state costs of $68 f or felony convictions, and $50 for misdemeanors). In People v Konopka , 309 Mich App 345, 359-360; 869 NW2d 651 (2015), we held that where costs are not authorized by statute, the tri al court must establish a factual basis for the costs imposed so that this Court may “determine w hether the costs imposed were reasonably related to the actua l costs incurred by the trial co urt, as required by MCL 769.1k(1)(b)( iii ).” Because the defendant in Konopka challenged the lack of reasoning for the costs imposed, we remanded to the trial court to establish a fa ctual basis for the costs and to give the defendant “the opportunity to challenge the reasonableness of the costs imposed.” Id. at 360. In the instant case, the court’ s imposition of costs was author ized by statute, so defendant is not entitled to a remand for a hear ing on the reasonableness of the costs under Konopka

. Regarding the late penalty, pursuant to MCL 600.4803(1), “[a] late penalty may be waived by the court upon the request of the person subject to t he late penalty.” It is not clear from defendant’s affidavit whether he has requested waiver of t he late fee from the trial court. However, the statute permits him to do so.

Affirmed.

/s/ Deborah A. Servitto /s/ Henry William Saad /s/ Colleen A. O'Brien