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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED December 17, 2015

v No. 321742 Wayne Circuit Court BLAKE KEVIN STOVER, LC No. 13-009768-FH

Defendant-Appellant.

Before: J ANSEN , P.J., and C AVANAGH and G LEICHER , JJ.

P ER C URIAM

. Defendant appeals as of right his jury trial convictions of as sault with intent to do great bodily harm, MCL 750.84, felon in possession of a firearm, MCL 750.224f, felonious assault, MCL 750.82, and possession of a firearm during the commission o f a felony (felony-firearm), MCL 750.227b. 1 Defendant was sentenced, as a third habitual offender, MCL 76 9.11, to 100 months to 20 years’ imprisonment for the assault with intent to do great bodily harm conviction, 2 to 10 years’ imprisonment for the felon in possession of a fi rearm conviction, one to eight years’ imprisonment for the felo nious assault conviction, and two years’ imprisonment for the felony-firearm conviction. We affirm.

I. DEFENDANT’S PRINC IPAL APPELLATE BRIEF

Defendant first argues that the trial court erred in scoring o ffense variables (OVs) 4, 7, 9, and 12. We conclude that the trial court erred in scoring OVs 4 and 12 but did not err in scoring OVs 7 and 9. Because the scoring errors do not affect the guid elines range, resentencing is not required.

“Under the sentencing guidelines, the circuit court’s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence. Whether the facts, as

1 Defendant was also charged wi th first-degree home invasion, MC L 750.110a(2), but the jury could not reach agreement regardin g that charge and the trial c ourt therefore declared a mistrial with respect to that charge. The prosecutor decided not to pur sue a retrial on that charge, and the trial court dismissed the charge.-2- found, are adequate to satisfy the scoring conditions prescribe d by statute, i.e., the application of the facts to the law, is a ques tion of statutory interpretation , which an appellate court reviews de novo.” People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013) (citations omitted).

OV 4 addresses psychological i njury to a victim. MCL 777.34(1 ); People v Lockett , 295 Mich App 165, 182; 814 NW2d 295 (2012). OV 4 requires a 10 poi nt assessment if “serious psychological injury requiring pr ofessional treatment occurred to a victim.” MCL 777.34(1)(a). Zero points are to be assessed i f “no serious psychological inj ury requiring professional treatment occurred to a victim.” MCL 777.34(1)(b). A trial co urt must assess “10 points if the serious psychological injury mayrequire professional treatment . In making this determination, the fact that treatment has not been sought is not conclusive.” MCL 777.34(2). “There must be some evidence of psychological in jury on the record to justify a 10-point score.” Lockett , 295 Mich App at 183. A victim’s expression of fearfulness or anger may comprise sufficient evidence of a psychological injury. People v Williams , 298 Mich App 121, 124; 825 NW2d 671 (2012). In this case, the record is devoid of evidence that th e victim, Mark Griggs (Mark), suffered a serious psychological injury. In deciding to assess 10 points for OV 4, the trial court stated that Mark “took the injury and took the assault, and I w ill give ten points for psychological injury to him.” But as the prosecutor concedes on appeal, the record does not contain a victim impact statement, a statement by Mark at sentencing, or any statement from Mark at trial about the impact of the crime on him . Mark testified at trial that h e was only “sort of” afraid during the incident because he felt certain that defendant was not going t o shoot him in the head. Overall, the record in this case does not support a finding of a serious psychological injury. The trial court therefore erred in assessing 10 points under OV 4.

OV 7 addresses aggravated physical abuse. MCL 777.37(1); Hardy , 494 Mich at 439. This OV requires a scor e of 50 points if “[a ] victim was treate d with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense[.]” MCL 777.37(1)(a). In Hardy , 494 Mich at 440, our Supreme Court addressed the fourth category for which 50 points may be assess ed under OV 7, i.e., “conduct designed to substantially increas e the fear and anxiety a victi m suffered during the offense.” MCL 777.37(1)(a). The Hardy Court “conclude[d] that it is proper to assess points under OV7 for conduct that was intended to make a victim’s fear or anxiety greater by a considerable amount.” Hardy , 494 Mich at 441. “The relevant inquiries are (1) whether the defendant engaged in conduct beyond the minimum required to commit the of fense; and, if so, (2) whether the conduct was intended to make a victim’s fear or anxiety gre ater by a considerable amount.” Id . at 443-444. The Court found th at racking a shotgun during a carjacking to make the victim fear an imminent violent death supported an assessment of 50 po ints for OV 7. Id . at 445. Also, threatening and striking victims w ith what appeared to be a saw ed-off shotgun we nt beyond what was necessary to commit an armed robbery and was intended to in crease the victims’ fear by a considerable amount, thus supporting a 50-point assessment for OV 7. Id . at 446-447.

At sentencing, the prosecutor argued that 50 points should be assessed for OV 7 because Mark “was pistol-whipped after having been shot. The gun was p ointed at his face, and he was ordered to get to his knees. Whe n he didn’t comply, that’s act ually when he got shot.” Defense counsel asked, “Well, at what point does it become excessive, Judge?” The trial court stated that “it became excessive as soon as he came in the house.” The tri al court continued:-3- THE COURT : I mean, it really got to be excessive. This was . . . Then he comes in with two buddies, and the other buddy’s got the gun. He gets the gun and he – you know, and this guy is trying to protect himself an d his sister.

And his sister who really kind of didn’t want to turn on her ow n brother. But she most certainly did not give us really honest testimony. And as soon as that young man tried to – he had to put, what, was it a mattres s and other things up to the door to keep this man from coming back in?

MR. PENNEY [the prosecutor]: It was a couch and a kitchen table, your Honor.

THE COURT : Okay. You get the fifty points. . . .

The trial court did not clearl y err in finding that a preponde rance of the evidence supported a 50-point assessment under OV 7. Shooting Mark in t he leg was the minimum conduct necessary to commit assaul t with intent to do great bod ily harm. Defendant committed conduct beyond this minimum level necessary to commit the offen se. After an earlier encounter that led Mark to put furniture up against the apartment door to block defendant’s entrance, defendant forced his way into the apartment with two other men, approached Mark’s sister, Markeda Griggs (Markeda), while unzipping his pants as if he wa s going to rape her, obtained a gun from one of his cohorts, ordered Mark to kneel, pointed the gun at Mark’s head, shot him in the leg, and then hit Mark in the head with the gun. Defendant thereby engaged in acts beyond the minimum required to commit the crime. Although Mark testif ied that he did not believe defendant was actually going to shoot him in the head, the rele vant inquiry is whether defendant’s conduct was intended to make Mark’s fear or anxiety greater by a considerable amount. The evidence was more than adequate to support such a finding. The 50-point assessment for OV 7 was not clearly erroneous.

OV 9 addresses the number of victims. MCL 777.39(1); People v Fawaz , 299 Mich App 55, 62; 829 NW2d 259 (2012). A trial court must assess 10 poin ts if “there were two to nine victims who were placed in danger of physical injury or death[. ]” MCL 777.39(1)(c). An assessment of zero points is required if “there were fewer than two victims who were placed in danger of physical injury or death[.]” MCL 777.39(1)(d). Each person who was placed in danger of physical injury or loss of life must be counted as a victim. MCL 777.39(2)(a); People v Morson , 471 Mich 248, 262; 685 NW2d 203 (2004); People v Waclawski , 286 Mich App 634, 682; 780 NW2d 321 (2009).

At sentencing, the prosecutor argued that there were three pot ential victims: Mark, Markeda, and Markeda’s three-year-old son. The trial court ind icated that it would count Markeda’s son and Mark as victims but that it would not include Markeda as a victim. 2 The trial

2 The trial court had earlier opined that “something ought to wa ke [Markeda, who was defendant’s girlfriend and the mother of his child,] up to real ity. She couldn’t see that this was a-4- court stated that Markeda’s son “had to witness this kind of cr azy behavior. That has an impact on the child later in life.” The trial court thus assessed 10 points for two victims under OV 9. On appeal, defendant argues that Markeda’s son was not placed i n danger of physical injury or death because the child was standing behind defendant when defe ndant shot Mark, and the gun was never pointed at the child. This argument ignores the fact that bullets can ricochet. The child and Mark were both placed in danger of physical injury or death when defendant fired the gun inside the apartment. 3 The assessment of 10 points under OV 9 was not clearly errone ous. In any event, as explained later, this assessment does not affe ct the guidelines range because we uphold the 50-point asse ssment for OV 7.

OV 12 addresses contemporaneous felonious criminal acts. MCL 777.42(1). Under OV 12, a court must assess 25 points if “three or more contemporan eous felonious criminal acts involving crimes against a person were committed.” MCL 777.42( 1)(a). A felonious criminal act is contemporaneous if it occurred within 24 hours of the se ntencing offenses and it has not and will not result in a separate conviction. MCL 777.42(2)(a) ; People v Light , 290 Mich App 717, 722; 803 NW2d 720 (2010). It must be separate from the be havior establishing the sentencing offenses. Id . at 723.

Defendant argues on appeal that he should not have been assess ed 25 points for OV 12 because the only crime of which h e was not convicted was first- degree home invasion. The prosecutor agrees that 25 points should not have been assessed under OV 12 but argues that 10 points should have been assessed for two contemporaneous feloni ous criminal acts involving crimes against a person. See MCL 777.42(1)(b). We agree with the prosecutor that a 10-point assessment for OV 12 was proper. The evidence supported a find ing that defendant committed second-degree child abuse against Markeda’s son because, while the child was present, defendant fought with the child’s mother, acted as if he was go ing to rape her, shot the child’s uncle, and hit the child’s uncle in the head with the gun. See MCL 750.136b(3)(b) (a person is guilty of second-degree child abuse if “[t]he person knowingly or intentionally commits an act likely to cause serious physical or mental harm to a child regardless of whether harm results.”); MCL 750.136b(3)(c) (a person is guilty of second-degree child abuse if “[t]he person knowingly or intentionally commits an act that is cruel to a child regard less of whether harm results.”). Defendant was not charged with or convicted of second-degree ch ild abuse. Also, although the jury did not reach a verdict on the first-degree home invasion charge, the trial court could have found that this offense was proven by a preponderance of the ev idence. See People v Harris
, 190 Mich App 652, 663; 476 NW2d 767 (1991) (noting that even cr iminal acts for which a defendant is acquitted may be considered in scoring the sentenc ing guidelines). Thus, an assessment of 10 points under OV 12 for two contemporaneous fel onious criminal acts involving crimes against a person was appropriate. But even if zero poin ts are assessed under OV 12, it

bad situation from the beginni ng, and recognize that this was t he kind of person she didn’t need to be around. That’s on her.”

3 The trial court’s discussion of the impact on the child later in life from having witnessed these events was inapt in respect to OV 9 because this comment concerns psychological trauma rather than physical injury or death. But the comment was harmless be cause, as discussed, the child was properly counted as a victim given that he was placed in da nger of physical injury or death.-5- would not change the guidelines range given that we are upholdi ng the 50-point assessment for OV 7.

Eliminating the 10-point assessment for OV 4 and subtracting 1 5 points from the OV 12 assessment do not change defendant’s guidelines range. Correct ion of these scoring errors reduces defendant’s total OV score from 155 points to 130 point s, leaving him at the same OV level of VI and in the D-VI cell of the Class D grid. His sent encing guidelines range as a third habitual offender therefore remains 34 to 100 months. See MCL 777.65; MCL 777.21(3)(b). Indeed, because defendant does not challenge the scoring of OVs that contribute 60 points of his OV total, and because 75 points are the minimum needed to put d efendant at OV level VI, eliminating all of the challenged OV points other than the 50 p oints for OV 7 would still leave defendant at OV level VI and w ould leave his guidelines range the same. That is, any changes in the assessments for OVs 4, 9, and 12 would have no effect on th e guidelines range given that the OV 7 assessment remains unaltered. Because the scoring errors with respect to OVs 4 and 12 do not affect the guidelines range, resentencing is not required. People v Francisco , 474 Mich 82, 89-91; 711 NW2d 44 (2006).

Defendant next argues that defense counsel was ineffective for failing to challenge the scoring of OVs 4, 9, and 12. We conclude that defendant is una ble to establish the prejudice component of this claim.

To preserve a claim of ineff ective assistance of counsel, a de fendant must move in the trial court for a new trial or an evidentiary hearing. People v Petri , 279 Mich App 407, 410; 760 NW2d 882 (2008). Defendant did not file either such motion bel ow. Therefore, the issue is not preserved. “A claim of ineffec tive assistance of counsel is a mixed question of law and fact.” Id . Findings of fact are reviewed for clear error, but the ultim ate constitutional issue for an ineffective assistance claim is reviewed de novo. Id . Because the issue is unpreserved, this Court’s review is for mistakes a pparent on the exi sting record. Id

. “To prevail on a claim of ineffective assistance, a defendant must, at a minimum, show that (1) counsel’s performance was below an objective standard of reasonableness and (2) a reasonable probability [exists] that the outcome of the proceed ing would have been different but for trial counsel’s errors.” People v Ackerman , 257 Mich App 434, 455; 669 NW2d 818 (2003). An appellate court deciding an ineffective assistance claim nee d not address both components of the ineffective assistance inquiry if the defendant makes an in sufficient showing of one of the components. Strickland v Washington , 466 US 668, 697; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “The object of an ineffectiveness claim is not to grade counsel ’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of su fficient prejudice, which we expect will often be so, that course should be followed.” Id

. As discussed earlier, the trial court properly assessed 10 poi nts for OV 9. Defense counsel was not ineffective for failing to make a meritless arg ument or raise a futile objection. People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010). Although the tri al court erred in scoring OVs 4 and 12, those errors did not affect the guidelines range given that OVs 7 and 9 were properly scored. The refore, even if defense counsel was ineffective for failing to raise objections to the scoring of OVs 4 and 12, defendant suff ered no prejudice because the allegedly deficient performance did not affect his guidelines r ange. Moreover, the issue-6- concerning the scoring of OVs 4, 7, 9, and 12 was ultimately pr eserved because defendant raised the issue in a motion to remand. Because the underlying issue has been preserved and fully reviewed, defendant has not e stablished prejudice.

Defendant next argues that Mic higan’s sentencing guidelines sy stem is unconstitutional under Alleyne v United States , ___ US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013). We conclude that defendant has abandoned this issue by failing to adequately brief it. Further, any constitutional error arising from the scoring of the OVs was harmless beyond a reasonable doubt because the trial judge’s comment s at sentencing indicate that the constraint of the sentencing guidelines protected defendant fro m receiving a more severe sen tence. A Sixth Amendment challenge presents a question of constitutional law that is rev iewed de novo. People v Lockridge
, 498 Mich 358, 373; 870 NW2d 502 (2015).

In Lockridge , 498 Mich at 364, our Supreme Court held that Michigan’s sente ncing guidelines are constitutionally deficient under the Sixth Amendment to the extent that “the guidelines require judicial fact-finding beyond facts admitted by the defendant o r found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range, i.e. the ‘mandatory minimum’ sentence under Alleyne .” As a remedy for this constitutional violation, our Supreme Court “sever[ed] MCL 769.34(2) to the extent that it makes the sentencing guidelines range as scored on the basis of facts beyond those admitted by the defendant or found by the jury beyond a reasonable doubt mandatory.” Id . The Lockridge Court also struck “down the requirement in MCL 769.34(3) that asentencing court that departs from the applicable guidelines range must articulate a substant ial and compelling reason for that departure.” Id . at 364-365. The Court held “that a guidelines minimum senten ce range calculated in violation of Apprendi [ v New Jersey , 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000),] and Alleyne is advisory only and that sentences that depart from that thre shold are to be reviewed by appellate courts for reasonableness.” Id . at 365. Courts must continue to determine the applicable guidelines range a nd take it int o account at sen tencing. Id

. For cases that were held in abeyance for Lockridge , most of which involved challenges that were not preserved in the trial court, our Supreme Court h eld that a defendant’s Sixth Amendment right is impaired if the “facts admitted by a defenda nt or found by the jury verdict

were insufficient to assess the minimum number of OV points necessary for the de fendant’s score to fall in the cell of the sentencing grid under which he or she was sentenced.” Id . at 395. “[A]ll defendants (1) who can demonstrate that their guidelines minimum sentence range was actually constrained by the viola tion of the Sixth Amendment an d (2) whose sentences were not subject to an upward departure can establish a threshold showin g of the potential for plain error sufficient to warrant a remand to the trial court for further i nquiry.” Id . “[I]n cases in which a defendant’s minimum sentence was established by application of the sentencing guidelines in a manner that violated the Sixth Amendment, the case should be re manded to the trial court to determine whether that court would have imposed a materially di fferent sentence but for the constitutional error.” Id . at 397. Such remands are warranted only in cases in which th e-7- defendant was sentenced on or before July 29, 2015, the date of the Lockridge decision. Id

. 4 On remand,

a trial court should first allo w a defendant an opportunity to inform the court that he or she will not seek resentencing. If notification is not r eceived in a timely manner, the court (1) should obtain the views of counsel in som e form, (2) may but is not required to hold a hearing on the matter, and (3) ne ed not have the defendant present when it decides whether to resentence the def endant, but (4) must have the defendant present, as required by law, if it deci des to resentence the defendant. Further, in determining whether the court would hav e imposed a materially different sentence but for the unconstitutional cons traint, the court should consider only the circumstances existing at the time of the original sentence. [ Id . at 398 (quotation marks and citations omitted).]

In the present case, defendant preserved his Lockridge issue by raising it in his motion to remand. In People v Stokes , ___ Mich App ___, ___; ___ NW2d ___ (Docket No. 321303, issued September 8, 2015); slip op at 9-10, this Court explaine d that a preserved Lockridge error is not structural and is therefore subject to the harmless beyo nd a reasonable doubt standard. This Court further held that in order to determine whether the preserved Lockridge error in Stokes was harmless, the remand procedure described in Lockridge must be followed. Id . at 10. That is, the remand procedure described in Lockridge applies to both preserved and unpreserved
pre- Lockridge sentencing errors. Id . at 11.

Defendant fails to present an argument establishing that he is entitled to relief under Lockridge

. 5 Defendant merely makes a conclusory assertion that Michigan’s guidelines system is unconstitutional under Alleyne , purports to adopt the arguments of the defendant in Lockridge
, and requests resentencing. Completely missing from defendant’s appellate presen tation is any analysis establishing that the facts admitted by him or found b y the jury verdict were insufficient to assess the minimum number of OV points necessary for his sco re to fall in the cell of the sentencing grid under which he was sentenced. See Lockridge , 498 Mich at 395. That is, defendant fails to specify which OVs he claims were scored on the basis of facts that he did no t admit and that the jury did not find, and to then show that the deduction of those OV points would cause his total OV score to fall into a different cell of the sentencing grid. It is therefore impossible to review defendant’s argument because he fails to m ake any effort to apply the holding in Lockridge to the facts of this case. A party may not simply announce a position or assert an error and leave it to this Court to discover and rati onalize the basis of the party’s claims, or to unravel and elaborate the party’s arguments. People v Kevorkian , 248 Mich App 373, 389; 639 NW2d 291 (2001). Defendant has thereby abandoned this issue. Id .; see also

4 For defendants sentenced after the Lockridge decision, traditional plain-error review will apply. Lockridge , 498 Mich at 397.

5 Defendant’s brief was filed before our Supreme Court issued it s decision in Lockridge , and he has not filed a supplemental brie f addressing this issue since Lockridge was issued.-8- People v McPherson , 263 Mich App 124, 136; 687 NW2d 370 (2004) (“The failure to b rief the merits of an allegation of error c onstitutes an abandonment of the issue.”).

But even if defendant could show the trial court’s sentencing discretion was unconstitutionally constrained by the sentencing guidelines, a remand for reconsideration of defendant’s sentence would not b e required in this case because the existing record establishes that any error was harmless beyond a reasonable doubt. The tri al judge, who is no longer on the bench, made comments at sentenc ing indicating that she would ha ve imposed a more severe sentence but for the constraint of the guidelines. The prosecutor at sentencing sought an upward departure from the guidelines ran ge. The trial judge rejected the prosecutor’s request to depart upward, stating, “I’m going to stay within the guidelines because I don’t want this case coming back .” (Emphasis added.) The trial judge then imposed a minimum s entence of 100 months, which was at the very top of the guidelines range. It is there fore clear from the trial judge’s comments and from the sentence imposed that the constraint of the sentencing guidelines protected defendant from receiving a higher minimum sentence. A remand for reconsideration of defendant’s sentence is the refore unnecessary because the ex isting record establishes that any error was harmless beyond a reas onable doubt; that is, the reco rd unequivocally refutes any contention that defendant would ha ve received a materially diff erent sentence more favorable to him but for any unconstitutional constraint on the trial judge’s se ntencing discretion. Just as prejudice was not established in Lockridge where the defendant rece ived an upward departure sentence that did not rely on th e minimum sentence range from t he improperly scored guidelines, Lockridge , 498 Mich at 394, defendant here was not prejudiced because any unconstitutional constraint resulting from the gui delines protected defendant fr om receiving a higher sentence, as evidenced by the trial judge’s c omments reflecting that the jud ge sentenced defendant within the guidelines to avoid having the cas e remanded for resentencing.

II. DEFENDANT’S ST ANDARD 4 BRIEF

Defendant argues that he was denied the effective assistance o f counsel at trial in numerous respects. We disagree. Because defendant failed to p reserve this issue in the trial court by moving for a new trial or an evidentiary hearing, our review is for mistakes apparent on the existing record. Petri , 279 Mich App at 410.

“To prevail on a claim of ineffective assistance, a defendant must, at a minimum, show that (1) counsel’s performance was below an objective standard of reasonableness and (2) a reasonable probability [exists] that the outcome of the proceed ing would have been different but for trial counsel’s errors.” Ackerman , 257 Mich App at 455. “Defendant must overcome a strong presumption that counsel ’s performance constituted sound trial strategy.” Petri , 279 Mich App at 411. This Court does not substitute its judgment for th at of counsel regarding matters of trial strategy, nor does it assess counsel’s performance with t he benefit of hindsight. Id . The fact that a defense strategy ultimately fails does not establish ine ffective assistance of counsel. Kevorkian , 248 Mich App at 373.

“Decisions regarding whether to call or question witnesses are presumed to be matters of trial strategy.” People v Russell , 297 Mich App 707, 716; 825 NW2d 623 (2012). In general, the failure to call or question witnesses or to present other e vidence constitutes ineffective assistance of counsel only if it deprives the defendant of a su bstantial defense. Id . A defense is-9- substantial if it might have made a difference in the outcome. People v Chapo , 283 Mich App 360, 371; 770 NW2d 68 (2009).

Defense counsel has a duty to undertake reasonabl e investigati ons or to make a reasonable decision that renders particular investigations unne cessary. People v Trakhtenberg
, 493 Mich 38, 52; 826 NW2d 136 (2012). Any choice to limit an i nvestigation “is reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id . (quotation marks omitted). The failure to conduct an adequat e investigation comprises ineffective assistance of counsel if it undermines co nfidence in the outcome of the trial. Russell , 297 Mich App at 716. A defendant claiming ineffective assist ance has the burden of establishing the factual predicate for the claim. People v Carbin , 463 Mich 590, 600; 623 NW2d 884 (2001).

Defendant first challenges defense counsel’s failure to object to the admission of recorded jail telephone calls containing statements by defendan t. But defendant fails to identify a specific ground on which he con tends that defense counsel sho uld have objected to the calls. A party may not simply announce a position or assert an error and leave it to this Court to discover and rationalize the basis of the party’s claims, or to unravel and elaborate the party’s arguments. Kevorkian , 248 Mich App at 389. Defendant has thereby abandoned this ar gument. Id .; see also McPherson , 263 Mich App at 136 (“The failure to brief the merits of an a llegation of error constitutes an abandonment of the issue.”). Defendant says tha t it was unreasonable for defense counsel to stipulate to the admission of the recorded calls bec ause defense counsel had inadequate time to prepare a defense to the calls, but the reco rd affords no basis for the assertion that defense counsel lacked adequate time to prepare a defense regarding the calls. Defendant contends that he tried talking about the issue with defense cou nsel and that the conversation “made it nowhere.” Again, the record is devoid of support for this bare assertion. Defendant says that the jurors did not understand the relevance of the ca lls. Although the jurors asked to have some of the calls replayed and the jury foreperson asked t he trial court about the “reason” for one of the conversations contained in the recorded calls, t his does not establish that the jurors failed to understand the relevance of the calls, and even if itdid, it would not establish that the recorded calls were inadmissible or that defense counsel’s fail ure to object to the admission of the calls comprised deficient performance.

Next, defendant asserts that defense counsel should have moved to quash the home invasion charge before trial and that defense counsel then woul d have been able to negotiate a more favorable plea agreement for defendant than the one offere d by the prosecutor. Defendant says that failing to move to quash the home invasion charge was unreasonable because defendant lived at the apartment that he was charged with invading. Howe ver, the record provides no basis to conclude that a motion to quash the home invasion charge wou ld have succeeded. Mark testified at the preliminary examination that he lived at the a partment; that he did not give defendant permission to come into the apartment on the date of the incident; that, to the best of Mark’s knowledge, Markeda also did not give defendant such perm ission; and that defendant no longer lived at the apartment on the date of the incident becau se he had moved out approximately two months earlier. The record therefore does not indicate tha t a motion to quash the home invasion charge would have succ eeded. Defense counsel was not ineffective for failing to make a meritless argument. Ericksen , 288 Mich App at 201. Nor is there any support in the record for-10- defendant’s assumption that the prosecutor would have offered amore favorable plea agreement if the home invasion charge had been quashed.

Defendant next contends that defense counsel failed to impeach Mark’s trial testimony with prior inconsistent statements. Defendant asserts that Mar k testified at the preliminary examination that defendant was not the shooter, whereas Mark te stified at trial that defendant shot him. Defendant also says that Mark claimed at trial that defendant tried to rape Markeda and that Mark claimed that he ha d said this at the preliminary examination, but, defendant says, no such statement is in the polic e report or in the preliminaryexamination transcript. Defendant asserts that defense counsel f ailed to prepare and investigate this matter.

Defendant’s assertion that Mark testified at the preliminary e xamination that defendant was not the shooter is incorrect. At the preliminary examinati on, Mark testified unequivocally that defendant shot him. Defenda nt cites a portion of the prel iminary examination transcript in which defense counsel asked Mark w hether anything prevented def endant from shooting Mark in the head, and Mark responded that “[m]aybe he didn’t want to ki ll me. That’s how he was prevented from shooting me.” In context, it is clear Mark was speculating about why defendant did not shoot Mark in the head ; Mark never suggested that defendant did not shoot him in the leg . Mark’s preliminary examinat ion testimony on this point was c onsistent with his trial testimony. Indeed, Mark similarly testified at trial that he w as only “[s]ort of” afraid during the incident because he was sure that defendant was not going to sh oot him in the head. Because there was no inconsistency, defense counsel was not ineffective for failing to impeach Mark on this point.

With respect to defense counsel’s purported failure to impeachMark on his testimony about defendant’s actions suggesting he was going to rape Marke da, Mark testified at trial that defendant was pulling his pants zipper down as if he was going to rape Markeda but that he did not rape her. On cross-examination, Mark testified that he ref erred during his preliminary examination testimony to defendant acting like he was going to rape Markeda. The following exchange then occurred between de fense counsel and the trial co urt:

MR. COOPER [defense counsel] : Judge, to move things along I’ll ask him to read it later. I don’t want him to have to read the who le transcript.

THE COURT : There’s no impeachment for something that’s left out.

MR

. COOPER : Well, there’s impeachment for a person who said he said something he didn’t say.

THE COURT : That’s the whole point. You have to prove it. You’re the one who has to present the evidence, so unless you can read an inconsistent statement. I don’t argue with you, remember? I rule and you m ove on.

MR

. COOPER : And you know I know.

THE COURT : Okay.-11- Thus, contrary to defendant’s arg ument, the record reflects that defense counsel did seek to impeach Mark on this matter, and the trial court rejected defen se counsel’s attempt to do so. Moreover, although Mark did not specifically testify at the pre liminary examination that defendant was acting as if he was going to rape Markeda, Mark d id seem to allude to the matter during his preliminary examination testimony by stating that, a fter coming into the apartment with his two accomplices, defendant “went towards my sister. Y ou know, he was acting like about to do something. Then he didn’t do it then he start smac king her up and then he told his other friend to hit [Mark].” Given this apparent allusion to the behavior at issue, defendant has failed to establish that any further effort to impeach Mark on this point would have succeeded, let alone that it would have cr eated a reasonable probability o f a different outcome.

Next, defendant contends that defense counsel failed to obtaindiscovery. According to defendant, defense counsel failed to request discovery on the b asis of a mistaken belief that the state was required to take the initiative to turn over all incu lpatory evidence to the defense. Further, defendant says that defense counsel failed to object t o the admission of photographs, that there was no strategy in failing to object to the admissio n of this supposedly new evidence of which defense counsel knew nothing, and that defense counsel co uld not prepare a defense to the photographs without investigating them. There is no support in the record for defendant’s contention that defense counsel f ailed to request or obtain dis covery. Nor is there any basis in the record to conclude that defense counsel knew nothing about the photographs at the time of their admission or failed to investigate the photographs. Defe ndant has therefore failed to establish the factual predicate for this claim. Carbin , 463 Mich at 600. Defendant identifies no legal basis on which defense counsel could have objected to the admission of the photographs. A party may not simply announce a position or assert an error a nd leave it to this Court to discover and rationalize the basis for the party’s claims, or t o unravel and elaborate the party’s arguments. Kevorkian , 248 Mich App at 389. Defendant has abandoned this argument. Id

. Defendant next challenges defen se counsel’s failure to cross-e xamine the officer-incharge, Detrick Mott, who testif ied about the collection of evi dence and his observation of the crime scene. Defendant says that Mott stated in a police repor t that there were two pools of blood on the floor where Mark was shot, but, defendant states, the photographs admitted at trial showed no signs of blood. Defendant suggests that defense coun sel should have therefore impeached Mott with the photographs of the crime scene and aske d Mott why the pools of blood were not shown in the photographs. Defendant also suggests tha t Mott should have been questioned about whether defendant’s fingerprints were recovere d from any items in the apartment. Defendant’s argument lacks support in the record. Mott did not testify at trial that there were two pools of blood on the floor where Mark was shot, and the police report to which defendant refers is not in the record. Hence, there is no basi s in the record to conclude that defense counsel could have impeached Mott on this point. Defen dant does not identify which items recovered from the apartment should have been the subject of inquiry of Mott concerning whether defendant’s fingerprints were recovered. Defendant fai ls to explain how any crossexamination regarding his fingerprints would have been useful t o his defense, particularly given that defendant had previously lived in the apartment and it is therefore unclear what value any testimony concerning his fingerpri nts would have. Defendant ha s not established that he was deprived of a substantial defens e by the failure to cross-exami ne Mott. Russell , 297 Mich App at 716.-12- Defendant next argues that he was denied his Fifth Amendment r ight to be free from double jeopardy because defense counsel failed to argue for a l esser included offense instruction. Defendant asserts that “[b]oth cha rges hold the same elements a nd were charge [sic] for the same offense. Counsel’s failure to ask for the lesser charge instru ction could not have been part of strategy.” Defendant does not ide ntify to which c harges he is referring or how the failure to request a lesser included offense instruction denied him the ri ght not to be placed in jeopardy twice for the same offense. Defendant has abandoned this argum ent by failing to provide sufficient elaboration. Keovrkian , 248 Mich App at 389. A ssuming that defendant is referring to his convictions for both assault with intent to do great bodily harm and felonious assault, his double jeopardy argument concerning those offenses lacks merit for the reasons later. Defense counsel was not ineffective for failing to make a meritless arg ument or raise a futile objection. Ericksen , 288 Mich App at 201.

Next, defendant contends that defense counsel failed to adequa tely argue exculpatory facts to the jury, including by impeaching Mark on his differen t versions of events, pointing out that there was no medical report admitted to show that Mark was injured, addressing the lack of blood at the crime scene, highlig hting the fact that Mark had t o wait an hour after being shot for the police to arrive and then 30 more minutes for an ambulance to transport him to the hospital, and noting that Mark and Markeda’s neighbor, Decarla Nabors, di d not notice anything out of the ordinary about Mark when Mark and Markeda knocked on her do or after the shooting. Defendant says there was no physical evidence that Mark was sho t, such as blood or a medical report. Defendant’s argument that defense counsel’s performanc e was deficient for failing to impeach Mark on his supposedly different versions of events lac ks merit for the reasons discussed earlier. Also, defense counsel may have reasonably d eclined to highlight Nabors’s failure to notice that Mark was shot and the absence of a medic al report and of proof that there was blood at the crime scene. Defendant’s argument overlooks t he fact that it was undisputed that Mark was shot; the only poi nt of contention was whether de fendant was the person who shot him. Defendant himself testified that Mark was shot. Rather than claiming that Mark was not shot, defendant testified that it was one of the two men who ac companied him to the apartment who fired the shot. Given the undisputed fact that Mark was sh ot, it is unclear why defendant thinks defense counsel should have highlighted Nabors’s testimo ny or the absence of a medical report or of blood at the crime scene. Defense counsel reasona bly opted to focus in closing argument on the theory that defendant was not the shooter rathe r than to suggest that Mark was not shot. Defense counsel nonet heless did emphasize to the jur y in closing argument the apparently minimal extent of Mark’s injuries by noting that the bullet was found in the wall and that Mark spent only three hours in the hospital, suggesting th at the gunshot wound was either a “through and through” or a “graze[ .]” Accordingly, the record does not support defendant’s contention that defense counsel’s performance was deficient for failing to argue exculpatory facts to the jury.

Defendant next argues that the trial court’s clerk did not pro perly administer the juror oath after the jury was selecte d. We disagree. A defendant mu st object in the trial court to the failure to properly swear the jury in order to preserve the iss ue for appellate review. People v Cain , 498 Mich 108, 114; 869 NW2d 829 (2015). Defendant did not ob ject to the juror oath in the trial court. Therefore, the issue is unpreserved. Because defendant failed to preserve this issue, this Court’s review is fo r plain error affecting substan tial rights. Id . at 116. Defendant must establish that (1) an error occurred, (2) the error was cl ear or obvious, and (3) the error-13- affected the outcome of the proceedings. Id . If those requirements are satisfied, an appellate court must exercise its discretion in deciding whether to rever se. Id . Reversal is warranted only if the error resulted in the c onviction of an innocent defendan t or seriously affected the fairness, integrity, or public reputation of the proceedings. Id

. MCR 2.511(H)(1) provides:

(1) The jury must be sworn by the clerk substantially as follo ws:
“Each of you do solemnly swear (or affirm) that, in this actio n now before the court, you will justly decide the questions submitted to yo u, that, unless you are discharged by the court fr om further deliberation, you will render a true verdict, and that you will render your verdict only on the evid ence introduced and in accordance with the instructions of the court, so help you G od.”

Also, MCL 768.14 states:

The following oath shall be administered to the jurors for the trial of all criminal cases: “You shall well and truly try, and true deliver ance make, between the people of this state and the prisoner at bar, whom you shal l have in charge, according to the evidence and the laws of this state; so help y ou God.”

The juror oath set forth in MCR 2.511(H)(1) imposes three duti es on jurors: “(1) to ‘justly decide the questions sub mitted,’ (2) to ‘render a true verdict,’ and (3) to do these things ‘only on the evidence introduced and in accordance with the ins tructions of the court.’ ” Cain
, 498 Mich at 121. In Cain , 498 Mich at 124 n 6, our Supreme Court emphasized that MCR 2.511(H)(1) requires the juror oath to be given in “substantial ly” the form prescribed in the rule. That is, “the precise language of the oath set forth in MCR 2.5 11(H)(1) is not necessarily required.” Id . Although jurors have historically been sworn for as long as the institution of trial by jury has existed, “the precise language of the oath used to swear the jury has never been a ‘fixed constant,’ as is evidenced by the fact that our own court rule, MCR 2.511(H)(1), and statute, MCL 768.14, contain diffe rently worded oaths.” Id . at 124-125 n 6.

In Cain , the clerk mistakenly read the wrong oath by giving the oath f or prospective jurors rather than the oath that is to be given after the jury is selected. Id . at 113. Our Supreme Court held that the failure to give the proper oath to the jury did not require reversal because the absence of the oath did not seriously affect the fairness, inte grity, or public reputation of the proceedings. Id . at 126-127. Among other consid erations, the Court noted that“[o]ne of the primary purposes of the oath – to impart to the members of the jury their duties as jurors – was alternatively fulfilled in large part by the trial court’s instructions prescribing the particulars of the jurors’ duties.” Id . at 122. For example, the trial court in Cain instructed the jurors before the swearing of the oath that “I will now ask you to stand and swear to perform your duty to try the case justly and to reach a true verdict.” Id . And, before giving the final instructions, the trial court in Cain told the jurors, “Remember that you have taken an oath to retu rn a true and just verdict based only on the evidenc e and my instructions on the l aw.” Id . During its final instructions, the trial court in Cain instructed the jury that it “was to decide the case on the bas is of the evidence presented during the trial and the law as the c ourt gave it to them, setting aside-14- all bias and prejudice.” Id . at 122-123. Our Supreme Court found that “[t]hese instructio ns encompassed, in even greater detail, duties equivalent to those prescribed in the oath.” Id . at 123.

In the present case, the clerk administered an oath that subst antially conformed to the oath set forth in MCR 2.511(H)(1) . The jurors took the followi ng oath:

THE CLERK : Could you please all stand a nd raise your right hand?

Do you solemnly swear to truthfu lly deliberate this case accord ing to the evidence and the laws of this state?

THE JURY : (IN CONSORT) I do.

THE CLERK : Thank you.

The administration of this oath a ssured that the jurors underst ood their solemn obligation to render a true verdict according to the evidence introduced and the laws of this state. Cain , 498 Mich at 121. The oath given in this case is sufficiently simil ar to that required by MCR 2.511(H)(1) that there was no cle ar or obvious error in the adm inistration of the oath.

But even if the oath was somewhat imperfect because it did notcontain language specifically referencing the duty to justly decide the question s submitted and did not explicitly state that the court’s instructions on the law must be followed , any such error would not require reversal because it did not seri ously affect the fairness, inte grity, or public reputation of the proceedings. As in Cain , the purpose of imparting the required duties to the jurors wa s alternatively fulfilled in large part by the trial court’s inst ructions. Before the jury was sworn, the trial court stated, “You’ll now be asked to stand and swear to justly try this case and enter a true verdict unless dismissed by the Court.” And before giving the final instructions, the trial court told the jury, “Remember that you’ve taken an oath to return a true and just verdict based only on the evidence and my instructions on the law.” The court told the jury that it must not let sympathy or prejudice influence its decision. The jury was tol d that in deciding the case, the jury may only consider properly admitted evidence, and the court exp lained what constituted evidence. The court emphasized to the jury that it was the cou rt’s duty to instruct the jury on the law and that “[y]ou must tak e the law as I give it to you. . . . You must take all of my instructions together as the law you are to follow. . . . To sum up it is yo ur job to decide what the facts of this case are, to apply the law as I give it to you, and in that wayto decide this case.” Therefore, like in Cain , the trial court’s “instruction s encompassed, in even greater detail, duties equivalent to those prescribed in the oath.” Cain , 498 Mich at 123.

Further, it is notable that the oath given in this case, even if it was less than perfect, nonetheless was far closer to that required by MCR 2.511(H)(1) than was the oath given in Cain that our Supreme Court held did not require reversal. And, as noted in Cain
, even an imperfect oath-swearing may have value “in terms of both its substance an d the dignity and solemnity of the process.” Cain , 498 Mich at 125 n 6. The jurors in this case took a solemn o ath to “truthfully deliberate this case according to the evidence and the laws of this state[.]” This oath and the trial court’s instructions provided the jurors with a p roper sense of their obligations and an understanding of the dignity a nd solemnity of the proceeding s. Id . at 123-124. Accordingly,-15- even if the oath given in this case was somewhat flawed such th at it amounted to plain error, reversal is not required because the error did not seriously af fect the fairness, integrity, or public reputation of the proceedings. Id . at 126-127.

Defendant next argues that a discovery violation occurred and that this violated his due process rights. We disagree. “For an issue to be preserved fo r appellate review, it must be raised, addressed, and decided by the lower court.” People v Metamora Water Serv, Inc , 276 Mich App 376, 382; 741 NW2d 61 (2007). Defendant did not raise this issue in the trial court. Therefore, the issue is not preserved.

“A trial court’s decision regar ding discovery is reviewed for an abuse of discretion.” People v Phillips , 468 Mich 583, 587; 663 NW2d 463 (2003). “An abuse of discret ion occurs when the trial court’s decision is outside the range of reasonable and principled outcomes.” People v Jackson , 292 Mich App 583, 591; 808 NW2d 541 (2011). A defendant’s cl aim that he was denied due process is reviewed de novo. People v Schumacher , 276 Mich App 165, 176; 740 NW2d 534 (2007). Unpreserved issues are reviewed for plain error affecting subst antial rights. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999). A defendant must demonstrate that an error occurred, that the error was clear or obvious, and that the error affected the outcome of the lower court proceedings. Id . at 763. If these requirements are satisfied, an appellate court should exercise i ts discretion in deciding whet her to reverse, and reversal is warranted only if the defendant is actually innocent or the err or seriously affected the fairness, integrity, or public reputation of the proceedings. Id . at 763-764.

There is no general constitutional right to discovery in crimi nal cases. People v Stanaway , 446 Mich 643, 664; 521 NW2d 557 (1994). Nonetheless, “[d]efe ndants have a due process right to obtain evidence in the possession of the prose cutor if it is favorable to the accused and material to guilt or punishment. Material has beeninterpreted to mean exculpatory evidence that would raise a reasonable doubt about the defendant’s guilt.” Id . at 666 (citations omitted). See also Schumacher , 276 Mich App at 176 (“Due process requires the prosecution to disclose evidence in its possession that is exculpatory and mat erial, regardless of whether the defendant requests the disclosure.”). The test for whether dis covery items should have been provided to the defendant is whether they contain information that probably would have changed the outcome of the trial. Id ., citing Pennsylvania v Ritchie , 480 US 39, 58; 107 S Ct 989; 94 L Ed 2d 40 (1987). To establish a due process violation related to the suppression of exculpatory evidence, a defendant must show:

(1) that the state possessed evidence favorable to the defendan t; (2) that the defendant did not possess the e vidence nor could the defendant have obtained it with any reasonable diligence; (3) that the prosecution suppres sed the favorable evidence; and (4) that had the evidence been disclosed to the d efense, a reasonable probability exists that the outcome of the proceedin gs would have been different. [ Schumacher , 276 Mich App at 177 (quotatio n marks omitted).]

In addition, MCR 6.201(A)(6) requires a party to provide, uponrequest, a description of and an opportunity to inspect any tangible physical evidence th at the party may introduce at trial, including photographs. The pro secutor also must provide, upon request, any exculpatory information or evidence known to the prosecutor and any writtenor recorded statements of the-16- defendant. MCR 6.201(B)(1), (3). T rial courts have discretionin fashioning a remedy for failure to comply with discovery orders or agreements regarding inculpatory evidence. See People v Williams , 188 Mich App 54, 58-59; 469 NW2d 4 (1991); People v Taylor , 159 Mich App 468, 487; 406 NW2d 859 (1987). In fashioning a remedy, a c ourt should balance the interests of the courts, the public, and the parties; the exclu sion of otherwise admissible inculpatory evidence is warranted only in the most egregious ca ses. Id . A nonconstitutional discovery violation requires rev ersal only if the defendant canestablish that it is more probable than not that the violation was outcome determinative, meaning that the error undermined the reliability of the verdict. People v Elston , 462 Mich 751, 766; 614 NW2d 595 (2000).

There is no support in the record for defendant’s contention that discovery violations occurred. Defendant asserts that he was not notified about the photographs or the jail phone call recordings that were introduced into evidence. The record is b ereft of any support for this claim. Nor is there any indication thatdefendant requested the photog raphs or jail phone call recordings. There is therefore no basis to find that a violati on of MCR 6.201(A)(6) or (B) occurred. Even if a discovery v iolation occurred, defendant fa ils to establish that the violation was so egregious that exclusion of the evidence was the appropr iate remedy, Taylor , 159 Mich App at 487, or that the discove ry violation was outcome determi native such that reversal is required, Elston , 462 Mich at 766. Defendant also has not established a due pr ocess violation because he fails to show that the evidence at issue was favorab le to him, that he did not possess the evidence, and that the prosecution suppressed it. See Schumacher , 276 Mich App at 177. Even if the evidence was suppressed, defendant fails to presentany argument establishing a reasonable probability of a different outcome if the evidence h ad been disclosed. See id

. Defendant may not leave it to th is Court to unravel and elabora te his arguments for him. Kevorkian , 248 Mich App at 389. Defendant ha s therefore abandoned this issue. Id

. Defendant next argues that his convictions and sentences for a ssault with intent to do great bodily harm and felonious a ssault violate the constitutio nal prohibition against double jeopardy. We disagree. “This Court reviews de novo questions of law, such as a double jeopardy challenge.” People v Gibbs , 299 Mich App 473, 488; 830 NW2d 821 (2013).

The prohibition against double jeopardy in both the federal an d state constitutions protects against (1 ) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. US Const, Am V; Con st 1963, art 1, § 15; People v Nutt , 469 Mich 565, 574; 677 NW2d 1 (2004). The third of these protections exists to “protect th e defendant from being sentenc ed to more punishment than the Leg islature intended.” People v Meshell , 265 Mich App 616, 628; 696 NW2d 754 (2005). [ Gibbs , 299 Mich App at 488-489.]

“In People v Smith , 478 Mich 292, 315; 733 NW2d 351 ( 2007), our Supreme Court hel d that the ‘same elements’ test set forth in Blockburger v United States , 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932), is the appropriate test to determine whether m ultiple punishments are barred by Const 1963, art 1, § 15.” People v Baker , 288 Mich App 378, 381; 792 NW2d 420 (2010) (quotation marks omitted).-17- The Blockburger test focuses on the statutory elements of the offense, without considering whether a subs tantial overlap exists in the proofs offered to establish the offense. If each offense requires proof of eleme nts that the other does not, the Blockburger test is satisfied and no double jeopardy violation is involved. [ Baker , 288 Mich App at 382 (citations omitted).]

Defendant argues that his convictions of both assault with int ent to do great bodily harm and felonious assaul t violate his right to be free from double jeopardy. However, our Supreme Court has rejected that very argument. In People v Strawther , 480 Mich 900; 739 NW2d 82 (2007), the Supreme Court stated: “The Court of Appeals erred i n concluding that the defendant’s convictions for both assault with intent to commit great bodily harm (MCL 750.84) and felonious assault (MCL 750.82) violated his double jeopardyprotections. Because the crimes have different elements, the defendant may be punished f or each.” In People v Strickland , 293 Mich App 393, 401-402; 810 NW2d 660 (2011), this Court no ted that it is bound to follow our Supreme Court’s holding in Strawther : “Our Supreme Court [in Strawther ] has determined that convictions of both assault with intent to do g reat bodily harm less than murder and felonious assault do not violate the constitutional double jeopardy protections because the crimes have different elements. This Court is bound to follow decisions of our Supreme Court.” (Citation omitted.) Accordingly, defendant’s argument that his double-jeopardy rights were violated by his convictions and sentences for both assault with intent to do great bodily harm and felonious assault must be rejected.

Finally, defendant argues that he was denied a fair trial by t he alleged errors in this case and that he is therefore entitled to a new trial. Defendant fa iled to preserve this issue by making a cumulative error objection before the trial court. Metamora Water Serv, Inc , 276 Mich App at 382. Therefore, our review is for plain error affecting substa ntial rights. Carines , 460 Mich at 763-764. This Court reviews a claim of cumulative error to det ermine whether the combination of alleged errors denied th e defendant a fair trial. People v Dobek , 274 Mich App 58, 106; 732 NW2d 546 (2007). The question whether the defendant was denied a fair trial is reviewed de

novo. People v Steele , 283 Mich App 472, 478; 769 NW2d 256 (2009).

“The cumulative effect of several minor errors may warrant rev ersal even where individual errors in the case would not warrant reversal.” People v Knapp , 244 Mich App 361, 388; 624 NW2d 227 (2001). The cumulative effect of the errors must have been seriously prejudicial in order to conclude that the defendant was denied a fair trial. Id. Moreover, the cumulative effect must undermine confidence in the reliability of the verdict before a new trial is granted. Dobek , 274 Mich App at 106. “Absent the establishment of errors, th ere can be no cumulative effect of errors meriting reversal.” Id . Because defendant has not established that any errors occurred at trial, there can be no cumulative effect of errors to warrant reversal. See id . Hence, defendant’s claim of cum ulative error must be rejecte d.

Affirmed.

/s/ Kathleen Jansen /s/ Mark J. Cavanagh