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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 16, 2015

v No. 320458 Macomb Circuit Court KEVIN MICHAEL SEARS, LC No. 2013-000402-FC

Defendant-Appellant.

Before: J ANSEN , P.J., and S AWYER and F ORT H OOD , JJ.

P ER C URIAM

. Defendant appeals as of right his jury trial convictions of co nspiracy to commit firstdegree premeditated murder, MCL 750.157a and MCL 750.316(1), an d solicitation of murder, MCL 750.157b(2). Defendant was sentenced to life imprisonment for the conspiracy to commit first-degree murder conviction and 12 to 25 years’ imprisonment for the solicitation of murder conviction. We affirm.

Defendant first argues that there was insufficient evidence to support his convictions of conspiracy to commit murder a nd solicitation of murder. We dis agree.
“A challenge to the sufficiency of the evidence in a jury tria l is reviewed de novo, viewing the evidence in the light most favorable to the prosecu tion, to determine whether the trier of fact could have found that the essential elements of t he crime were proved beyond a reasonable doubt.” People v Gaines , 306 Mich App 289, 296; 856 NW2d 222 (2014). This Court “must draw all reasonable inferences and examine credibil ity issues in suppo rt of the jury verdict” and “must not interfere with the jury’s role as the so le judge of the facts.” People v Malone , 287 Mich App 648, 654; 792 NW2d 7 (2010). “[T]he elements of an offense may be established on the basis of circumstantial evidence and reasona ble inferences from the evidence[.]” People v Dunigan , 299 Mich App 579, 582; 831 NW2d 243 (2013).

A conspiracy is “a partnership in criminal purposes” by which “two or more individuals must have voluntarily agreed to effectuate the commission of a criminal offense.” People v Justice , 454 Mich 334, 345; 562 NW2d 652 (1997). “Conspiracy is a spe cific-intent crime, because it requires both the intent to combine with others and the intent to accomplish the illegal objective.” People v Mass , 464 Mich 615, 629; 628 NW2d 540 (2001).-2- Identifying the objectives and ev en the participants of an unl awful agreement is often difficult because of the clandestine nature of criminal conspiracies. Thus, direct proof of the conspiracy is not esse ntial; instead, proof may be derived from the circumstances, acts, and conduct of the parties. Inferences may be made because such evidence sheds light on the coconspirators’ intentions. [ Justice , 454 Mich at 347.]

“A conviction of first-degree premeditated murder requires evid ence that the defendant intentionally killed the victim and the act of killing was prem editated and deliberate.” People v Jackson , 292 Mich App 583, 588; 808 NW2d 541 (2011) (citation and inte rnal quotation marks omitted). “Solicitation to commit murder occurs when (1) the s olicitor purposely seeks to have someone killed and (2) tries to engage someone to do the killin g.” People v Crawford , 232 Mich App 608, 616; 591 NW2d 669 (1998).

In this case, the testimony of defendant’s girlfriend and co-c onspirator, Mallorie WilsonStrat, standing alone, was sufficient to support defendant’s co nvictions. The accounts of a single eyewitness can establish a defe ndant’s guilt beyond a reasonabl e doubt. See People v Newby , 66 Mich App 400, 405; 239 NW2d 387 (1976). According to Wilson-St rat, defendant said he wanted his wife, Jessica Scaife, killed before their divorce wa s final. Although defendant expressed some desire to kill Scaife on his own, Wilson-Strat d iscouraged that, fearing that defendant would be discovered and go to prison. Wilson-Strat t estified that defendant and his sister, Christina Sears, both had conversations with her about wanting Scaife killed. WilsonStrat testified regarding several text messages she received fr om defendant, which she stated referred to the conspiracy. In the messages, defendant promise d to marry her if she “did [her] job” and that she could be a stay -at-home mother “if it works.” Wilson-Strat also identified code words used in text messages between her and defendant when disc ussing the conspiracy. Wilson-Strat first hired David Cl ark to kill Scaife, and defend ant financially contributed. Defendant instructed Clark, through Wilson-Strat, on how to ent er the marital home through an open basement window when Clark and Clark’s friend went, armed with knives, to kill Scaife. However, Clark was unsuccessful , so Wilson-Strat then hired Joh n Walker, who she later learned was undercover police detective John Glass, to murder Scaife. She paid Glass to kill Scaife, and defendant financially contributed. Based on these facts, testi fied to by Wilson-Strat, there was sufficient evidence presented to the jury to support defendant’ s convictions. Contrary to defendant’s claim on appeal, inferences and innuendo were not t he only support for defendant’s convictions and, in any event, direct proof of the conspiracy a nd solicitation was not necessary. Justice , 454 Mich at 347; Dunigan , 299 Mich App at 582.

Defendant next argues that the trial court’s practice of ident ifying jurors by numbers rather than by their names violated his right to due process. We disagree. This Court generally reviews for an abuse of discretion a trial court’s decision to refer to jurors by number rather than

name. People v Williams , 241 Mich App 519, 522; 616 NW2d 710 (2000). However, because defendant did not object in the trial court, his claim is unpre served. We review unpreserved constitutional challenges for plain error affecting substantial rights. People v Vandenberg , 307 Mich App 57, 61; 859 NW2d 229 (2014).

“An ‘anonymous jury’ is one in which certain information is wi thheld from the parties, presumably for the safety of the jurors or to prevent harassmen t by the public.” Williams , 241-3- Mich App at 522-523. While “the use of an ‘anonymous jury’ may promote the safety of prospective jurors,” it is at the “potential expense” of “the d efendant’s interest in being able to conduct a meaningful examination of the jury” and “the defendan t’s interest in maintaining the presumption of innocence.” Id . at 522–523. “In order to successfully challenge the use of a n ‘anonymous jury,’ the record must reflect that the parties have had information withheld from them, thus preventing meaningful voir dire, or that the presump tion of innocence has been compromised.” Id . at 523.

Here, the record does not support defendant’s assertions that the trial court empaneled an anonymous jury or that his due proc ess rights were violated. W hile the jurors were referred to by numbers, there was nothing in the record to suggest that defend ant was denied access to the juror’s information 1 or that he was prevented from conducting meaningful voir dire. See id

. Defendant did not argue in the trial court or on appeal that he was denied these opportunities. Rather, the record demonstrates that, during voir dire, the tri al court, prosecutor, and defense counsel asked extensive questi ons about the jurors’ backgrounds and attitudes. In addition, there is nothing in the record to indicate that the use of numbers to identify jurors undermined the presumption of innocence. Id . at 524. Rather, the trial court instructed the jury that def endant enjoyed the presumption of innocence, and jurors are presumed t o have followed their instructions. People v Mesik (On Reconsideration) , 285 Mich App 535, 542; 775 NW2d 857 (2009) (citation omitted). Accordingly, defendant has not show n plain error affecting his substantial rights. Vandenberg , 307 Mich App at 61.

Defendant next argues that the t rial court erred when it refus ed to allow defendant to impeach Wilson-Strat with evidence of a prior inconsistent stat ement. Defendant claims this violated his constitutional right to present a defense, confron t the witnesses against him, and a fair trial. We disagree. This Court reviews a trial court’s d ecision to admit evidence for an abuse of discretion. People v Chelmicki , 305 Mich App 58, 62; 850 NW2d 612 (2014). An abuse of discretion occurs when trial court’s decision is outsi de the range of principled
outcomes. People v Duenaz , 306 Mich App 85, 90; 854 NW2d 531 (2014).

At trial, defendant’s trial counsel questioned Wilson-Strat re garding Latoyia Brooks, who was a fellow inmate and food-serv ice coworker of Wilson-Strat. Defendant asked Wilson-Strat if she had discussed the case with Brooks, and Wilson-Strat rep lied, “Not that I recall.” Outside the presence of the jury, defen se counsel elicited testimony fr om Brooks that while in the prison shower together, Wilson-Strat told Brooks that she had tried to have her boyfriend’s wife murdered. Brooks further testified that Wilson-Strat said she was going to testify against defendant because “she was trying to take him down with her bec ause he didn’t love her like she loved him.” The trial court e xcluded Brooks’ testimony from tr ial. On appeal, defendant asserts that the trial court should have permitted defendant to impeach Wilson-Strat with Brooks’ testimony.

1 MCR 2.510(C)(1)(c) requires partie s of actions in which a juro r is called to serve to be allowed to examine the juror’s questionnaire.-4- Any party may attack the credibility of a witness. MRE 607. MRE 613 provides that, under certain circumstances, a witness may be examined regardin g a prior inconsistent statement for impeachment purposes:

(a) Examining witness concerning prior statement. In examinin g a witness concerning a prior statement made by the witness, whether writt en or not, the statement need not be shown nor its contents disclosed to the w itness at that time, but on request it shall be show n or disclosed to opposing couns el and the witness.

(b) Extrinsic evidence of prior inconsistent statement of witn ess. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportu nity to explain or deny the s ame and the opposite party is afforded an opportunity to interrogate the wi tness thereon, or the interests of justice otherwise require. This provision does no t apply to admissions of a party opponent as defi ned in Rule 801(d)(2).

Pursuant to MRE 613, to impeach a witness a party must first la y a proper foundation “by questioning the witness concerning the time and place of the st atement and the pe rson to whom it was allegedly made.” People v Rodriguez , 251 Mich App 10, 34-35; 650 NW2d 96 (2002).

Defendant did not lay the proper foundation for the admission of the Wilson-Strat’s alleged inconsistent statement. As the trial court found, defe nse counsel did not directly ask Wilson-Strat whether she ever t old Brooks her motivation for te stifying. Rather, defense counsel only generally asked whether Wilson-Strat told Brooks about her “situation.” Defense counsel was also misleading about the timing of the alleged statement—a sking Wilson-Strat if she talked to Brooks during a break when they were working in a food line, but then eliciting testimony from Brooks about a statement made while they were in the priso n showers. Because WilsonStrat did not have an opportunity to admit, deny, or explain he r alleged statement to Brooks, it was not outside the range of principled outcomes to exclude the statement. Duenaz , 306 Mich App at 90.

Defendant argues that the trial court could have allowed defen se counsel to question Brooks about Wilson-Strat’s statem ent and later recall Wilson-S trat to give her the opportunity to admit, deny, or explain it. Defendant is correct that MRE 6 13(b) contains no particular sequence or timing required for the foundational order. People v Parker , 230 Mich App 677, 683; 584 NW2d 753 (1998). But this Court has explained that “t he traditional method of confronting a witness with his inconsistent statement prior to its introduction into evidence [is] the preferred method of proceeding,” and it prevents a prior st atement from being “incorrectly interpreted by a jury as substantive evidence.” Id . (citation omitted). In Parker , this Court concluded that where the defenda nt knew about the declarant’s p rior inconsistent statement before the witness testified, it was not an abuse of discretion for the trial court to rule that the traditional sequence be followed. Id . at 683-684. Here, defense counsel never requested an opportunity to recall Wilson-Stra t to establish a proper founda tion after Brooks testified about the alleged prior statement. But even if defense counsel had m ade such a request, the trial court would not have erred by ruling that the traditional method shou ld be followed to prevent any misunderstanding about the purpose of the evidence—for impeachm ent, not substance. See id.-5- Affirmed.

/s/ Kathleen Jansen /s/ David H. Sawyer /s/ Karen M. Fort Hood