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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED November 3, 2016

v No. 329151 Ingham Circuit Court OCTAVIAN FLY, LC No. 14-001236-FH

Defendant-Appellant.

Before: R ONAYNE K RAUSE , P.J., and O’C ONNELL and G LEICHER , JJ.

P ER C URIAM

. Defendant, Octavian Fly, appeal s by right from his convictions , following a bench trial, of delivery or manufacture of marijuana, MCL 333.7401(2)(d)( iii ), felon in possession of a firearm (felon in possession), MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court se ntenced Fly as a third-offense habitual offender, MCL 769.11, to serve concurrent terms of 24 months to 96 months’ imprisonment for his marijuana conviction and 34 months to 120 months’ imprisonment for his felon in possession conviction, and a consecutive term of 24 mo nths’ imprisonment for his felony-firearm convi ction. We affirm.

I. FACTUAL BACKGROUND

According to Michael Tymkew, he visited the home of Melissa Co le to speak with one of her children. While speaking with the children outside the hom e, Fly came onto the porch with a backpack and began yelling. One of the children told Tymkew th at there had been a physical altercation between Fly and C ole, and Tymkew called 911.

According to Lansing Police Department Officer Robert Forbis, when he arrived at the home, Fly was seated on the frontporch steps. When Fly saw Of ficer Forbis, he quickly stood up, grabbed a green backpack, and ran into the house. Cole tes tified that Fly came back into the home, put some marijuana on a TV stand, and threw the green bac kpack into a bedroom. Based on a conversation with the children, Officer Forbis believed th at Fly was a narcotics dealer, and Officer Forbis asked Cole for consent to search the house. He stated that before Cole signed the consent form, he asked her if she resided in the house, and she replied that she did. During the subsequent search, officers rec overed two jars containing marij uana from the TV stand, a gun from inside the green backpack, and two small scales. The tria l court found Fly guilty of the offenses previously stated.-2- II. WAIVER OF RIGHT TO COUNSEL

Fly contends that he is entitled to a new trial because the tr ial court failed to obtain a knowing, intelligent, and voluntar y waiver of his right to coun sel. We disagree.

We review de novo whether a defe ndant has waived his Sixth Ame ndment right to be represented by counsel and review for clear error the trial cou rt’s factual findings regarding a knowing and intelligent waiver. People v Williams , 470 Mich 634, 640; 683 NW2d 597 (2004). We must indulge in every reasonab le presumption against a defen dant’s waiver of his or her right to counsel. Id . We review an unpreserved error regarding whether the trial c ourt failed to reaffirm a defendant’s waiver of the right to counsel under MCR 6.005(E) for plain error affecting the defendant ’s substantial rights. People v Lane , 453 Mich 132, 140; 551 NW2d 382 (1996).

The trial court should engage i n “a methodical assessment of t he wisdom of selfrepresentation by the defendant” before determining that the de fendant’s waiver is knowing, intelligent, and voluntary. People v Hicks , 259 Mich App 518, 523; 675 NW2d 599 (2003) (quotation marks and citation om itted). A defendant’s waiver i s effective when the trial court fully apprises the defendant of the risks of self-representatio n, and the defendant knowingly and voluntarily accepts them. Williams , 470 Mich at 645. MCR 6.005(D) requires the trial court to advise the defendant of the charge, the maximum possible prison sentence, any mandatory minimum sentence required by law, and the risks of self-represe ntation. The trial court must substantially comply with these r equirements for the defendant to validly waive the right to counsel. People v Willing , 267 Mich App 208, 220; 704 NW2d 472 (2005).

In this case, before trial, Fly stated that he wanted to repre sent himself and use his courtappointed attorney as an advisory attorney. The trial court co nfirmed that Fly wanted to represent himself and cautioned him against doing so. It infor med him of the charges and maximum sentences for his offense, as well as the possible sent ence-enhancements for his thirdoffense habitual offender status. It also explained that the p rosecutor was a trained lawyer and “generally it’s not a very good idea for a person who is not a lawyer, facing serious charges, to go up against someone who is an experienced lawyer and very kno wledgeable on the rules and the law.” Finally, the trial court asked Fly if he had spoken with his lawyer about his desire to represent himself. Fly responde d, “I did, but like when I talk ed to him about it . . . he just pretty much ignored me.” After again asking Fly if he wished to repre sent himself, Fly confirmed that he wanted to represent himself.

We conclude that the trial court substantially complied with i ts obligations by fully apprising Fly of the risks of self-representation and ascertain ing that he voluntarily accepted them. We thus conclude that Fly’s waiver of his right to couns el was knowing, intelligent, and voluntary.

Fly also contends that the tria l court’s failure to remind him of his right to counsel at each subsequent proceeding rendered his waiver constitutionally inef fective. The trial court should advise the defendant at each subsequent proceeding of his or he r right to an attorney and “reaffirm that a lawyer’s assistance is not wanted . . . .” MC R 6.005(E)(1). However, this is not a constitutional requirement for the knowing, intelligent, and voluntary waiver of the right to-3- counsel. Lane , 453 Mich at 139-140. Accordingly, Fly’s argument that the tr ial court’s failure to remind Fly of his right to counsel under MCR 6.005(E)(1) aff ected the constitutionality of his waiver is without merit.

III. LEGALITY OF THE SEARCH AND SEIZURE

In his pro-se brief filed pursuant to Michigan Supreme Court O rder 2004-6, Standard 4, 1 Fly contends that the search of Cole’s residence was illegal be cause the police did not obtain proof that Cole owned the r esidence. We disagree.

The Fourth Amendment of the United States Constitution guarant ees every person’s right to be free from unreasonable searches and seizures. People v Slaughter , 489 Mich 302, 310; 803 NW2d 171 (2011). See US Const, Am IV; Const 1963, art 1, § 11. We review de novo whether police conduct violated the Fourth Amendment. People v Hyde , 285 Mich App 428, 438; 775 NW2d 833 (2009).

Both the United States and Michigan constitutions “guarantee t he right of persons to be secure against unreasonable searches and seizures.” People v Kazmierczak , 461 Mich 411, 417; 605 NW2d 667 (2000). See US Const, Am IV; Const 1963, art 1, § 11. To comply with this requirement, police officers generally must have a warrant to c onduct a search. See Kazmierczak , 461 Mich at 417. If police officers obtain evidence while vi olating the Fourth Amendment, the evidence is gener ally inadmissible in criminal p roceedings. Id . at 418. “In order to show that a search was legal, the police must show eit her that they had a warrant or that their conduct fell under one of the narrow, specific exceptions to the warrant requirement.” People v Eaton, 241 Mich App 459, 461; 617 NW2d 363 (2000).

The consent exception to the search warrant requirement allows officers to conduct a search “when consent is unequivo cal, specific, and freely and i ntelligently given.” People v Galloway , 259 Mich App 634; 675 NW2d 883 (2003). The consent must come from the person whose property the officer seeks to search or from a third part y with authority over the property. People v Brown , 279 Mich App 116, 131; 755 NW2d 664 (2008). The police offic er’s belief in the validity of the consent must be objectively reasonable. Id

. In this case, Officer Forbis te stified that Cole stated that s he resided in the house and that it was her home. Officer Forbis was called to the home by Tymk ew, who was there to speak with Cole’s children. It is undisputed that Cole did not prese nt any documentary evidence that she lived at the home. However, under the circumstances, we co nclude that Officer Forbis’s belief in the validity of Cole’s consent was objectively reason able.

1 It is extremely difficult to discern the legal basis of Fly’s arguments in his Standard 4 brief. This Court will address those arguments for which a legal basis is apparent. However, to the extent that Fly may have raised additional arguments, we conclu de that those arguments are abandoned for failure to support them. See People v Harris , 261 Mich App 44, 50; 680 NW2d 17 (2004).-4- Fly also contends that police lacked a legal basis to seize th e firearm and marijuana. We disagree.

“[A] warrantless seizure by police of an item that comes withi n plain view during their lawful search of a private area may be reasonable under the Fou rth Amendment,” including when the intrusion that brought the police officer into the vie w of the evidence is supported by a warrant exception. Arizona v Hicks , 480 US 321, 323; 107 S Ct 1149; 94 L Ed 2d 347 (1987). The plain-view exception allows a police officer to seize an it em in his or her plain view if he or she views the item from a lawful position and the item’s incrim inating character is immediately apparent. People v Champion , 452 Mich 92, 101; 549 NW2d 849 (1996). An item’s incriminating character is immediately apparent if probable cau se would exist to seize the item without conducting a search. Id . at 102-103. Probable cause exists “when the facts and circumstances within an office r’s knowledge are sufficient to w arrant a reasonable person to believe that an offense had been or is being committed.” People v Chapo , 283 Mich App 360, 367; 770 NW2d 68 (2009).

In this case, the marijuana was sitting in two Mason jars on a TV stand in plain view, with one clear jar containing a large bag and the second clear jar containing smaller bags. Marijuana is a controlled subs tance, and MCL 333.7401(2)(d)( iii ) criminalizes the manufacturing or intent to deliver marijuana. Therefore, once the officer viewed the marijuana in plain sight, there was a reasonable belief that an offense h ad been committed. A gun was also found in the home. Delivery or m anufacture of marijuana is a f elony, MCL 333.7401(2)(d)( iii ), and it is a felony to possess a firearm while committing or att empting to commit a felony, MCL 750.227b. Under the circumstances, we conclude that the police had probable cause to seize the firearm.

IV. ADMISSION OF IMPEACHMENT EVIDENCE

In his pro-se brief, Fly contends that the trial court imprope rly prevented him from introducing into evidence police reports that contained inconsi stent statements by the witnesses. We disagree.

We review for an abuse of discretion the trial court’s decisio n to admit or exclude evidence. People v Starr , 457 Mich 490, 494; 577 NW2d 673 (1998). The trial court abus es its discretion when its decision fa lls outside the range of reasona ble and principled outcomes. People v Duenaz , 306 Mich App 85, 98; 854 NW2d 531 (2014).

In this case, Fly sought to admit police reports that he used to impeach the witnesses with inconsistent statements. The trial court properly allowed Fly to impeach the witnesses about their prior statements with these documents without admitting t he documents themselves into evidence. See MRE 613. However, MRE 803(8) provides that poli ce reports are inadmissible hearsay. The trial court properly declined to admit the report s as evidence. We have reviewed the trial court’s impeachment procedures and conclude that thos e procedures and rulings did not constitute an abuse of discretion.

To the extent that Fly challenges the credibility of the witne sses’ testimonies, we reject his challenge. The credibility of the witnesses is for the tri er of fact to determine, and this Court-5- does not resolve credibility issues on appeal. People v Gadomski , 232 Mich App 24, 28; 592 NW2d 75 (1998).

V. DOUBLE JEOPARDY

In his pro-se brief, Fly conte nds that his convictions of both felony-firearm and felon-inpossession violated the constitutional prohibition against doub le jeopardy. Well-settled law is contrary to Fly’s argument, see People v Dillard , 246 Mich App 163, 171; 631 NW2d 755 (2001), and we conclude his position is meritless.

VI. RIGHT OF CONFRONTATION

In his pro-se brief, Fly conten ds that the trial court deprive d him of his right to confrontation when the prosecuti on failed to call three witness es at trial. We disagree.

The Sixth Amendment of the Un ited States Constitution and Arti cle I, § 20 of Michigan’s Constitution, give an accused the right to be confronted with t he witnesses against him. See Pointer v Texas , 380 US 400, 406; 85 S Ct 1065; 13 L Ed 2d 923 (1965); People v Nunley , 491 Mich 686, 697; 821 NW2d 642 (2012). However, “[m]erely framing an issue as constitutional does not make it so.” People v Blackmon , 280 Mich App 253, 261; 761 NW2d 172 (2008). An issue involving the exclusion of evidence is generally nonconst itutional error. See People v Lukity , 460 Mich 484, 495-496; 596 NW2d 607 (1999).

In this case, the trial court allowed Fly to call and examine Cole when the prosecution declined to call her as a witness. Regarding Cole’s children, the trial court ruled that Fly could not call them. Fly does not indicate what evidence the childre n would have offered. The exclusion of evidence is grounds for reversal only if it affirm atively appears that it is “more probable than not that the error was outcome determinative.” Lukity , 460 Mich at 495-496. Because there is no indication that the children would have off ered testimony that would have affected the outcome of Fly’s case, Fly has failed to show that any prejudice resulted from this alleged error.

VII. RIGHT TO SPEEDY TRIAL

Finally, in his pro-se brief, Fl y contends that the prosecutio n violated his right to a speedy trial. Again, we disagree.

The United States and Michigan Constitutions, as well as statutes and court rules, grant criminal defendants the right t o a speedy trial. US Const, Am VI; Const 1963, art 1, § 20; MCL 768.1; MCR 6.004(A). In determining whether a defendant has be en denied a speedy trial, a court must consider (1) the lengt h of the delay, (2) the reason s for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) prejudi ce to the defendant from the delay. People v Rivera , 301 Mich App 188, 193; 835 NW2d 464 (2013). The defendant mu st prove actual prejudice when the delay is less than 18 months. People v Collins , 388 Mich 680, 695; 202 NW2d 769 (1972). But “[w]hen the delay is more than 18 mon ths, prejudice is presumed, and the prosecution must show t hat no injury occurred.” Rivera , 301 Mich App at 193.-6- In this case, Fly was arrested on October 13, 2014, arraigned on November 26, 2014, and his bench trial began on April 9, 2015. Because the time betwe en Fly’s arrest and trial was less than 18 months, there is no presumptive prejudice. Fly has als o failed to show that any actual prejudice resulted from any dela y. We thus reject Fly’s claim.

We affirm.

/s/ Amy Ronayne Krause /s/ Peter D. O’Connell /s/ Elizabeth L. Gleicher