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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED July 26, 2016

v No. 324267 Wayne Circuit Court JESSIE VORNELL LEWIS, LC No. 14-004400-FC

Defendant-Appellant.

Before: O’C ONNELL

, P.J., and M ARKEY and O’B RIEN , JJ.

P ER C URIAM

.

Defendant appeals by right his j ury trial convictions of secon d-degree murder, MCL 750.317, armed robbery, MCL 750.529, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.2 27b. Defendant was sentenced as a third habitual offender, MCL 769.11, to 40 to 70 years’ imprisonment for the second-degr ee murder conviction, 20 to 35 years’ imprisonment for the armed robbery conviction, and two y ears’ imprisonment for the felony-firearm conviction. We affirm.

Defendant asserts that insufficient evidence was adduced at tr ial to sustain his convictions. Specifically, defendant challenges the absence of any evidence to suggest that he was the shooter or that he posse ssed a weapon. He further cont ends that he was able to provide a reasonable, alternative explanat ion for the cellular telephone and text messages submitted at trial.

As discussed in People v Bennett , 290 Mich App 465, 471-472; 802 NW2d 627 (2010):

This Court reviews de novo claims of insufficient evidence, vi ewing the evidence in the light most favor able to the prosecution, to det ermine whether a
rational trier of fact could find that the essential elements o f the crime were proved beyond a reasonable doubt. Further, this Court must defer to the factfinder’s role in determining the weight of the evidence and the credibility of the witnesses. “[C]onflicts in the evidence must be resolved in fa vor of the prosecution.” Circumstantial evidence and reasonable inference s arising therefrom may constitute proof of the elements of the crime. [ Citations omitted.]

This Court “will not interfere with the trier of fact’s role of determining the weight of the evidence or the credibility of witnesses.” People v Kanaan , 278 Mich App 594, 619; 751 NW2d 57 (2008).-2- The elements comprising second-degree murder are: “(1) a deat h, (2) the death was caused by an act of the defendant, (3) the defendant acted withmalice, and (4) the defendant did not have lawful justification or excuse for causing the death.” People v Smith , 478 Mich 64, 70; 731 NW2d 411 (2007). “Malice is defined as the intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and wilful disregardof the likelihood that the natural tendency of such behavior is to cause death or great bodily har m.” People v Goecke , 457 Mich 442, 463-464; 579 NW2d 868 (1998). “The prosecution is not req uired to prove that the defendant actually intended to harm or kill. Instead, the pros ecution must prove the intent to do an act that is in obvious disregard of life-endangering consequ ences.” People v Werner , 254 Mich App 528, 531; 659 NW2d 688 ( 2002) (citation and quotation marks omitted). The elements of armed robbery include:

(1) the defendant, in the course of committing a larceny of anymoney or other property that may be the subject of a larceny, used force or vi olence against any person who was present or assaulted or put the person in fear, and (2) the defendant, in the course of committing the larceny, either poss essed a dangerous weapon, possessed an article used or fashioned in a manner to l ead any person present to reasonably believe that the article was a dangerous weapon, or represented orally or otherwise that he or she was in possessio n of a dangerous weapon. [ People v Chambers , 277 Mich App 1, 7-8; 742 NW2d 610 (2007).]

“The elements of felony-firearm are that the defendant possesse d a firearm during the commission of, or the attem pt to commit, a felony.” People v Johnson , 293 Mich App 79, 82-83; 808 NW2d 815 (2011) (citation and quotation marks omitted).

Defendant initially challenges the absence of a ny eyewitness t estimony or other evidence suggesting his possession of a firearm or weapon at the scene o f the crime. Defendant acknowledged that he was present a t the crime scene when certai n events transpired. Defendant’s aunt, Norma Lyte, observed defendant at the scene i mmediately before hearing gunshots and the car crash and saw someone wearing the same clo thing as defendant running from the scene. Norma indicated a high degree of certainty tha t the person running from the
scene was defendant. Defendant ’s cellular telephone was recove red from the crime scene, near the victim’s body. A search of defendant’s residence resulted in the retrieval of the type of ammunition consistent with that used in shooting the victim and a cellular telephone box matching the telephone belonging to defendant and found at the crime scene. The actual weapon used was never recovered. An analysis of defendant’s cellular telephone and records obtained from the carrier, place defendant at the crime scene at the rel evant times and serve to substantiate his activities throughout the day leading up to the murder. Te lephone calls and text messages were exchanged between defendant and his codefendant, Jarvis Gl enn, who was known to have been with the victim during the day, suggesting the victim, Gle nn and defendant were in the same general area before the shooting occurred. The content of the text messages exchanged between defendant and Glenn imply a plan to take the victim’s c ellular telephones and an element of planning. The cause of the victim’s death was attri butable to two gunshot wounds. While witnesses did not observe defendant with a gun at the sce ne, photographs of defendant on his cellular telephone demonstr ate he had access to weapons.-3- “Circumstantial evidence and the reasonable inferences it perm its are sufficient to support a conviction, provided the prosecution meets its consti tutionally based burden of proof beyond a reasonable doubt.” People v Ericksen , 288 Mich App 192, 196; 793 NW2d 120 (2010). “It is for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the evidence and to determine the weight to b e accorded those inferences.” People v Hardiman , 466 Mich 417, 428; 646 NW2d 158 (2002). Further, it is well established that evidence of flight will support an inference of a defendan t’s consciousness of guilt. People v Compeau , 244 Mich App 595, 598; 625 NW2d 120 (2001). The term “flight ” has been applied to actions such as fleeing the scene of the crime, leaving the jurisdiction, running from the police, resisting arrest, and attempting to escape from custody

. People v Coleman , 210 Mich App 1, 4; 532 NW2d 885 (1995). “[I]t is always for the jury to determine whether evidence of flight occurred under such circumstances as to indicate guilt.” People v Unger , 278 Mich App 210, 221; 749 NW2d 272 (2008).

Ample evidence was adduced at trial that placed defendant at t he scene and then fleeing the area immediately after the vehicular crash and gunshots. D efendant’s cellular telephone was recovered close to the victim’s body, and an analysis of the ce llular telephone and the carrier records associated with it confirm defendant’s presence in the area and his communications with Glenn, who had been with the victim, immediately before the sho oting and indicating a plan or communications pertaining to a theft involving the victim. Evi dence of where the victim’s wounds were incurred further sugg ests that the victim was shot by someone outside of the victim’s vehicle. It was undisputed that the victim was a drug dealer. Witnesses testified that the victim had indicated problems with his business in the 24-h our period preceding his death and that defendant worked for the victim. Taking this evidence in the light most favorable to the prosecution, we conclude that sufficient evidence was adduced t o sustain defendant’s
convictions.

Defendant also argues that there was no proof of an armed robb ery because the victim’s cellular telephones, which the pro secution contended were what the defendant intended to steal, were not removed from the victim or his vehicle. Contrary to d efendant’s argument, “a completed larceny is no longer ne cessary to sustain a convictio n for the crime of robbery or armed robbery.” People v Williams , 491 Mich 164, 166; 814 NW2d 270 (2012).

Defendant further asserts that he provided a reasonable, alter native explanation for his presence in the area and his text messages with Glenn. This Co urt is not permitted to interfere with the role of the trier of fact in determining the weight of the evidence or the credibility of
witnesses. Hardiman , 466 Mich at 428; Kanaan , 278 Mich App at 619. Further, inconsistent witness testimony does not render the evidence insufficient bec ause such issues were for the jury to resolve in determining the credibility of the witnesses. People v Smith , 205 Mich App 69, 72 n 1; 517 NW2d 255 (1994). Based on the requirements that this Court “draw all reasonable inferences and make credibility choices in support of the jury verdict,” People v Nowack , 462 Mich 392, 400; 614 NW2d 78 (2000), defendant’s challenges to th e sufficiency of the evidence premised on the credibility of witnesses are without merit.

For the same reasons asserted regarding his claim of insuffici ent evidence, defendant argues that the verdict was contrary to the great weight of the evidence. “An appellate court will review a properly preserved grea t-weight issue by deciding whet her the evidence preponderates-4- so heavily against the verdict that it would be a miscarriage o f justice to allow the verdict to
stand.” People v Cameron , 291 Mich App 599, 617; 806 NW2d 371 (2011). In this case, defendant failed to preserve this issue because he did not rais e it in a motion for a new trial. People v Musser , 259 Mich App 215, 218; 673 NW2d 800 (2003). Consequently, ou r review is for plain error affecting defe ndant’s substantial rights. Id

.

As discussed when addressing defendant’s claim regarding the s ufficiency of the evidence, defendant acknowledged being in the area of the shoot ing at the time it occurred. His aunt, Norma, testified to seeing d efendant before hearing the s hots and the vehicular crash and observing defendant running from the scene after the accident and gunshots occurred. Defendant’s cellular telephone was recovered in close physical proximity to the victim. It was undisputed that the victim was involved in the illegal drug tra de and that he had expressed having problems with his busine ss shortly before his death. On e witness identified defendant as
a confederate of the victim in the drug trade. Text messages a nd cellular telephone calls were documented earlier in the day and immediately before the homici de between defendant and Glenn suggesting the planning of atheft from the victim, with Glenn’s being in the company of the victim on the day of the s hooting. Live ammunition, similar in type to that used to kill the victim, was found at defendant’s residence. The evidence did n ot “preponderate[] so heavily against the verdict that it would be a miscarriage of justice t o allow the verdict to stand.”

Musser , 259 Mich App at 218-219; See also Cameron , 291 Mich App at 617.

Defendant also asserts his trial counsel was ineffective for f ailing: (a) to comply with defendant’s requests or to return documents to defendant or his appellate counsel, (b) to seek a separate trial or jury from his codefendant, Glenn, (c) to obje ct to rebuttal testimony provided by a relative of the victim, and (d) to object to the scoring of O Vs 5, 13 and 14.

Defendant failed to preserve his claim of ineffective assistan ce of counsel by failing to
raise the issue in a motion for a new trial or a motion for a Ginther 1 hearing in the trial court.

Musser , 259 Mich App at 220-221. Therefore our review is limited to the existing record. Id

. “Whether a person has been denied effective assistance of couns el is a mixed question of fact
and constitutional law.” People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002). In general, a trial court’s findings of fact are reviewed for clear error, with questions of
constitutional law reviewed de novo. Id

.

The United States and Michigan Constitutions guarantee a defen dant the right to effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 2 0. To demonstrate ineffective assistance of counsel, a defenda nt is required to demonstrate that “(1) counsel’s performance fell below an objective standard of reasonableness and (2) but for c ounsel’s deficient performance, there is a reasonable probability that the outcome would have b een different.” People v Trakhtenberg , 493 Mich 38, 51; 826 NW2d 136 (2012). A “ reasonable probabil ity” is defined as a probability sufficient to undermine confidence in the outcome

. Strickland v Washington , 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Accordingly :

1 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-5- Defense counsel should be strongly presumed to have rendered a dequate assistance and made all significant decisions in the exercise o f reasonable professional judgment. The inquir y into whether counsel’s perf ormance was reasonable is an objective one and requires the reviewing court to determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. This standard requires a reviewing court to affi rmatively entertain the range of possible reasons . . . counsel may have had for proceeding as they did. [ People v Vaughn , 491 Mich 642, 670; 821 NW2d 288 (2012) (ci tations and quotation marks omitted).]

“Failing to advance a meritless argument or raise a futile obje ction does not constitute ineffective
assistance of counsel.” Ericksen , 288 Mich App at 201.

First, defendant contends that trial counsel was ineffective f or not seeking an evidentiary hearing or pursuing certain lines of questioning that he had re quested. Notably, defendant fails to provide any detail regarding these alleged omissions by his trial counsel or to elucidate their
relevance. Defendant’s failure to provide any authority or to identify evidence from the record to support his claim constitutes an abandonment of this aspect of the issue on appeal. People v

Watson , 245 Mich App 572, 587; 629 NW2d 411 (2001) (an appellant cann ot simply announce his position and leave it for th is Court to discover and ration alize the basis for his claims).

Similarly, the failure of trial counsel to turn over his file to appellate counsel does not
serve to demonstrate that counsel was ineffective at trial. De fendant’s claim is conspicuously deficient of any details regardin g the line of questioning he w ished counsel to pursue or the types of motions or documents he wished his attorney to file with the trial court. To prevail on an ineffective assistance of counsel claim, “a defendant must over come the strong presumption that counsel’s performance was born from a sound trial strategy.” Trakhtenberg , 493 Mich at 52.
Counsel’s decisions as to whether to call or question witnesses and what evidence to present are presumed to be matters of trial strategy, which this Court will not second-guess with the benefit of hindsight. People v Dixon , 263 Mich App 393, 398; 688 NW2d 308 (2004).

Defendant next asserts trial counsel was ineffective for faili ng to obtain a separate trial or jury from his codefendant, contending their defenses were antag onistic. As discussed in People

v Bosca , 310 Mich App 1, 44; 871 NW2d 307 (2015) (citations and quotat ion marks omitted):

There is no absolute right to separate trials, and in fact, a strong policy favors joint trials in the interest of justice, judicial econom y, and administration. Severance should be granted when defenses are antagonistic. A defense is deemed antagonistic when it appears that a codefendant may test ify to exculpate himself and to incriminate the defendant. Further, defenses mu st be not only inconsistent, but also mutually exclusive or irreconcilable. I n other words, the tension between defenses must be so great that a jury would hav e to believe one defendant at the expense of the o ther. Incidental spillover pr ejudice, which is
almost inevitable in a multi-d efendant trial, does not suffice.

It is difficult to comprehend de fendant’s contention that the defense Glenn asserted was antagonistic, particularly given the absence of any testimony b y Glenn or witnesses called on his-6- behalf. The evidence demonstrates that defendant and Glenn wer e in the same general area at
the time of the relevant events. Evidence also established tha t Glenn was with the victim earlier in the day and that Glenn and defendant exchanged cellular tele phone calls and text messages
near the time of the events. Both defendant and Glenn asserted they were not per petrators of the crime and did not accuse each other. Hence, the defenses were not antagonistic or irreconcilable necessitating severan ce of trials or a separate jury.

Defendant also argues that the i nability of the jury to reach a verdict with regard to certain charges against Glenn proves that separate juries or tr ials were necessary. Defendant suggests that the guilty verdict s the jury rendered on his char ges serves as a means for the jury to “rationalize” their inability to render a verdict on the same c harges with regard to Glenn. Defendant asserts that a separate jury or trial would have forc ed the jury to focus on the lack of evidence against defendant inste ad of obfuscating the issue of guilt caused by Glenn’s fingerpointing. But contrary to defe ndant’s theory, “it is well sett led that defendants are not entitled to severance merely because they may have a better chance of acqui ttal in separate trials.” People v

Hana , 447 Mich 325, 350; 524 NW2d 682 (1994), amended 447 Mich 1203 (1994), quoting Zafiro v United States , 506 US 534, 540; 113 S Ct 933; 122 L Ed 2d 317 (1993). Furth er, the trial court allayed any risk of prejudice by instructing the jury to consider each defendant separately. See Hana , 447 Mich at 351. Because defendant and Glenn did not present mutually exclusive defenses, the use of a joint trial and jury was not p rejudicial, and the jury’s ability to assess the guilt or innocence of each defendant separately was not hindered.

Defendant next contends trial counsel was ineffective for fail ing to object to the brief testimony elicited from the victim’s brother, Tyrone Thomas, id entifying defendant as working for the victim. According to def endant, trial counsel was inef fective for failing to verify that Tyrone was not present in the courtroom during the trial in acc ordance with a sequestration order before being permitted to testify. First, there is no proof to support defendant’s claim. Defense counsel was clearly present throughout trial and had the opport unity to observe who was present in the courtroom on a daily basis . Notably, defendant does notassert that Tyrone was present in the courtroom during the elicita tion of other evidence or testi mony; he merely asserts defense counsel failed to ascertain or verify whether he had been prese nt. It is equally likely that given the existence of a sequestration order, Tyrone was not in the c ourtroom other than while testifying. Second, defendant contends that Tyrone’s testimonywas unnecessary. Tyrone was presented as a rebuttal witne ss to address defendant’s testimon y that he did not know the victim and was not involved in the victim’s illegal drug transactions. Tyrone’s testimony was limited solely to addressing defendant’s credibility regarding his lack of familiarity with the victim.
“Rebuttal evidence is limited to refuting, contradicting, or ex plaining evidence presented by the opposing party .” People v Humphreys , 221 Mich App 443, 446; 561 NW2d 868 (1997). In this case, Tyrone’s testimony was properly admitted because it was r esponsive to evidence introduced by defendant. People v Figgures , 451 Mich 390, 399; 547 NW2d 673 (1996).

Finally, defendant contends trial counsel was ineffective for failing to object to the trial court’s scoring of OVs 5, 13 and 14.

At sentencing, defendant was assessed 15 points for OV 5. OV 5 pertains to psychological injury to a victim ’s family, with 15 points asses sed “if the serious psychological injury to the victim’s family may require professional treatment.” MCL 777.35(2). At-7- sentencing a relative of the victim did testify that family mem bers needed psychological assistance to cope with the victim’s death. Notably, at the ti me of defendant’s sentencing our Supreme Court had not issued its decision in People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015). Defense counsel cannot be required to be prescient or knowledgeable regarding rulings not yet made. See Ericksen , 288 Mich App at 201. In addition, even under Lockridge , it is arguably not ineffective assistance for counsel to fail to obje ct to the scoring of a variable using judicial fact-finding. “[J]udici al fact-finding remains an imp ortant component of Michigan’s sentencing scheme post- Lockridge .” People v Jackson (On Reconsideration) , ___ Mich App ___, ___; ___ NW2d ___ (2015) (Docket No. 322350); slip op at 1 1. “Although the sentencing guidelines are no longer mandatory, ‘they remain a highly relev ant consideration in a trial court’s exercise of sentencing discretion.” Id. , quoting Lockridge , 498 Mich at 391. The Lockridge Court, emphasized that “[o]ur holding today does nothing to und ercut the requirement that the highest number of points possible must be assessed for all OVs, whether using judge-found facts

or not.” Id. at 392 n 28.

“Under MCL 777.43, the trial court must score points under OV 13 on the basis of a defendant’s felonious acts that constitute a continuing pattern of criminal behavior. If the sentencing offense was part of a pattern of felonious criminal activity involving three or more crimes against a person, the trial court must score OV 13 at 25 points.” People v Bemer , 286 Mich App 26, 33; 777 NW2d 464 (2009). “When determining the ap propriate points under this variable, ‘all crimes within a5-year period, including the sen tencing offense, shall be counted regardless of whether the offens e resulted in a conviction.’ ” Id. , citing MCL 777.43(2)(a). With regard to the scoring of OV 13, defendant had a prior armed rob bery conviction in 2010 in addition to his current convictions for second-degree murder an d armed robbery. A pattern of criminal activity can be premised on multiple offenses arising from the same event or

occurrence. People v Harmon , 248 Mich App 522, 532; 640 NW2d 314 (2001). As such, the factual basis for the scoring of this variable comprised inform ation admitted by defendant or found by the jury premised on the guilty verdict of two of the charged offenses and defendant’s acknowledgment of his prior conviction. See Jackson , ___ Mich App at ___; slip op at 13 (“The United States Supreme Court has recognized that a defendant’s a dmission of a prior conviction satisfies the requirement that a sentencing enhancement be base d on facts admitted by a defendant or found by a jury.”). Therefore, the scoring of OV 13 was supported by facts admitted by defendant and were properly considered in defendant ’s total OV score. Id

.

In accordance with MCL 777.44(1)(a), 10 points are assessed fo r OV 14 when the “offender was a leader in a multiple offender situation.” Defe nse counsel did not object to scoring of this variable, and the trial court concurred with th e prosecutor that the jury’s determination of defendant’s guilt as the shooter on the charge of second-degree murder without
a conviction of Glenn on this charge demonstrated defendant’s l eadership role. “A ‘leader’ is defined, in relevant part, as ‘a person or thing that leads’ or ‘a guiding or directing head, as of an army or political group.’ To ‘lea d’ is defined in relevant part as, in general, guiding, preceding, showing the way, directing or conducting.” People v Rhodes , 305 Mich App 85, 90; 849 NW2d 417 (2014), citing Random House Webster’ s College Dictionary (2001). Defense counsel did not contest the scoring of OV 14, and the trial court elected t o assess 10 points for this variable. Based on the cellular telephone records and text messages, evid ence was adduced demonstrating that defendant and Glenn were acting together against the victi m. Arguably, although the jury determined defendant to be the more aggressive perpetrator by f inding him to be the shooter-8- based on his convictions and the failure to attain a similar de termination of guilt regarding Glenn on the murder and felony-firearm charges, it remains a leap in logic to assume that the jury, therefore, determined defendant to be the leader in this crimin al enterprise. Rather, based on the text messages sent from Glenn to defendant and Glenn’s earlier physical proximity throughout the day to the victim, it is equally probable that Glenn was di recting the events leading to the
victim’s death. “Under the dic tionary definition of leadership , we cannot conclude that merely posing a greater threat to a joint victim is sufficient to esta blish an individual as a leader within the meaning of OV 14, at least in the absence of any evidence s howing that the individual played some role in guiding or initiating the transaction itself.” Rhodes , 305 Mich App at 90. Although the assessment of 10 points for this variable was error, it was harmless as the correction of the scoring of this variable does not alter defendant’s guideline r ange. “If a scoring error does not alter the guidelines range, r esentencing is not required.” Id. at 91 (citation omitted).

Finally, defendant contends, fo r the same reasons alleged in c onjunction with his claim of
ineffective assistance of counsel that the trial court improper ly scored OVs 5, 13 and 14 based on judicial-based fact-findin g and not premised on findings by the jury or admitted by defendant.

“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.” People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013) . Whether the facts as found by the court are sufficient to meet the scoring conditions presc ribed by statute constitutes alegal question that is reviewed de

novo. Id . “A Sixth Amendment challenge presents a question of constitu tional law that this
Court reviews de novo.” Lockridge , 498 Mich at 373.

With regard to OV 5, defendant i s correct in asserting that th e assessment of 15 points for this variable was premised on j udicial fact-finding following t estimony by a member of the victim’s family at sentencing. S coring of this variable should have remained at zero points.

Contrary to defendant’s contention, however, OV 13 was correct ly scored at 25 points premised on a pattern of criminal behavior over the most recent five-year period. The jury convicted defendant of second-degree murder and armed robbery, both constituting crimes against a person. See Bemer , 286 Mich App at 33; MCL 777.43(2)(a). Their concurrent natur e as arising from the same transaction does not preclude the scor e assessed. Harmon , 248 Mich App at 532. Defendant asserts th at the inclusion of his prior armed robbery conviction in 2010 was the result of judicial fact -finding, ignoring that during trial, defendant personally acknowledged this conviction and his guilt. As such, the asses sment of 25 points for this variable did not comprise error as it was premised on both the jury’s determinations of defendant’s guilt and defendant’s own acknowledgement.

Defendant also argues that the assessment of points on OV 14 w as in error and premised on judicial fact-finding based on the lack of evidence or deter mination by the jury that defendant assumed a leadership role in the events that transpired. We co ncur that, in accordance with

Rhodes , 305 Mich App at 90, the assessmen t of 10 points on this variable comprised error.

Using the points assessed by the trial court, defendant’s sent encing guidelines range fell within the range of 315 to 525 months on the applicable grid. Defendant’s total prior record variable (PRV) score was 54 point s, placing him at PRV Level E. This remains unchanged.-9- Defendant’s OV score was 130, plac ing defendant at OV level III . The elimination of 15 points for OV 5 and 10 points for OV 14 results in a total OV score fo r defendant of 105. This reduction does not affect his applicable sentencing guideline r ange, which remains at OV level III, 315 months to 525 months. Because the “facts admitted by the defendant and [] facts found by the jury were sufficient to assess the minimum number of OV points necessary for the defendant’s score to fall in the cell of the sentencing grid un der which he . . . was sentenced . . . defendant suffered no prejudice from any error, [and] there is no plain error and no further inquiry is required.” Lockridge  ̧ 498 Mich at 394-395.

Finally, we find without merit th e arguments defendant present s in his Standard 4 brief.

First, defendant argues that he was denied a fair trial by the admission of firearms evidence and a photograph of defendant holding a handgun. Defe ndant contends this evidence was both irrelevant and prejudicia l. We note, of course, this argument is contradictory as “all evidence is somewhat prejudicial to a defendant—it must be so t o be relevant.” People v Magyar , 250 Mich App 408, 416; 648 NW2d 215 (2002). It is only when the probative value
relevant evidence is substantial ly outweighed by the danger of unfair prejudice that it may be excluded. MRE 403; People v Herndon , 246 Mich App 371, 414, n 92; 633 NW2d 376 (2001). As discussed already, the evidence defendant complains of was r elevant. Moreover, even if the photograph of defendant should ha ve been excluded under MRE 403 , its admission into evidence
does not warrant reversal because on examination of all other p roperly admitted evidence, it does not affirmatively appear that it is more probable than not that the alleged error was outcome
determinative. People v Lukity , 460 Mich 484, 495-496; 596 NW2d 607 (1999).

Next, defendant contends the prosecutor committed misconduct b y making certain comments during his rebuttal argu ment that were based on eviden ce admitted at trial and responsive to defense counsel’s arguments. These remarks were not improper when evaluated in context and in light of each party’s theory of the case, the op ponent’s arguments, and the
evidence. See People v Thomas , 260 Mich App 450, 454; 678 NW2d 631 (2004).

Defendant also asserts that in the same very brief rebuttal ar gument, the prosecutor improperly vouched for the credib ility of two witnesses by stat ing he believed they told the truth. To preserve a claim of prosecuto rial misconduct, a defendant mu st contemporaneously object and request a curative instruction. Bennett , 290 Mich App at 475. Because these alleged errors are unpreserved, our review is lim ited to ascertaining whether plain error affected substantial rights. People v Brown , 279 Mich App 116, 134; 755 NW2d 664 (2008). Under this stand ard of review, reversal is warranted on ly when a plain error results i n the conviction of an innocent person, or seriously affected the fairness, integrity, or publi c reputation of the proceedings. Unger , 278 Mich App at 235. The prosecutor’s brief comments concern ing credibility, even if plain error, do not warrant rel ief under this standard. Moreov er, the trial court immediately after the prosecutor completed his rebuttal argument, began its final instructions to the jury. These instructions included that the j ury must decide the case only o n the evidence properly admitted during the trial, that it was th e function of the jury to determine the credibility of witnesses and, that the lawyers’ comments were not evidence. “Curative instru ctions are sufficient to cure the prejudicial effect of most inappr opriate prosecutorial statemen ts, and jurors are presumed to
follow their instructions.” Id . (citations omitted).-10- Next, defendant claims that the trial court erred in its instr uction to the jury pertaining to the jury’s consideration of ide ntification testimony. Defense counsel affirmatively approved the trial court’s instructions to the jury; consequently, defendant has waived this alleged error.

Bosca , 310 Mich App at 46. Moreover, e ven if not waived, the trial court’s instructions read as a whole, People v Kowalski , 489 Mich 488, 501; 803 NW2d 200 (2011), included all elements of the charged offenses, defenses, and theories of the parties tha t were supported by the evidence.

See Jackson , ___ Mich App ___, slip op at 11. Thus, no plain error occurr ed with respect to this jury instruction. See People v Snider , 239 Mich App 393, 420; 608 NW2d 502 (2000).

Defendant also asserts structural error occurred because the j ury was sworn contrary to the exact wording of MCR 2.511(H)(1). 2 After the petit jury was impaneled, the clerk of the court administered the following oath to the jury: “Do you sole mnly swear or affirm to honestly and truthfully try this case and to deliver your decision accor ding to the laws and evidence of this state?” The jury responded affirmatively in unison. Because d efendant did not raise this issue before the trial court, our review is for plain error affecting defendant’s substantial rights. People v Allan , 299 Mich App 205, 210; 829 NW2d 319 (2013), modified People v Cain , 498 Mich 108, 128; 869 NW2d 829 (2015).

In both Allan , 299 Mich App at 208, and Cain , 498 Mich at 113, the venire was sworn to answer truthfully regarding questions asked during the voir dir e process; no further oath was administered to the petit jury after the selection process was complete. See MCR 6.412(B), and
M Crim JI 1.4. The Allan Court found this total failure to administer an oath to the se lected jury was plain error. Allan , 299 Mich App at 211. “To avoi d forfeiture of a constitutiona l right under the plain-error rule, defendant must prove the following: (1) there was an error; (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights, i.e., the outcome of the lower-court proceedings.” Id . at 210, citing People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). The Allan Court held that the plain error of not swearing the jury at al l was a “structural” error that satisfied the third prong for granting relief from the plain error. Id . at 218. Without further analysis, the Allan Court also concluded that the p lain error satisfied the fourth prong necessary to grant relief from plain forfeited error. 3 Specifically, the Allan Court “conclude[d] that the trial cour t’s failure to administer the o ath to the jury seriously affected the

2 MCR 2.511(H)(1) provides: “The ju ry must be sworn by the clerk substantially as follows:

Each of you do solemnly swear (or affirm) that, in this action now before the court, you will justly decide the questions submitted to you, that, unless you are discharged by the court from further deliberation, you will render a true verdict, and that you will render your verdict only on
the evidence introduced and in accordance with the instructions of the court, so help you God.”

3 Under the fourth prong for relie f from plain error, an appella te court must exerci se its discretion in deciding whether to reverse. “Reversal is warranted only wh en the plain, forfeited error
resulted in the conviction of a n actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial procee dings independent of the defendant's
innocence.” Carines , 460 Mich at 763 (ci tation, quotation marks, and brackets omit ted).-11- fairness, integrity, and public reputation of the judicial proc eedings.” Id . Thus, Allan held that
the total failure to administer an oath to the petit jury warranted relief. Id . at 219.

In the factually similar Cain case, our Supreme Court noted that the parties agreed that administering only the oath to the jury that precedes voir dire was an error that satisfied the first two prongs of the plain-error rule: (1) there was an error, and (2) the error was plain, clear or
obvious. Cain , 498 Mich at 113, 117. The Court did not ad dress whether the plain error affected the defendant’s substantial rights because it concluded that ev en if it did, the Court was “not persuaded that the trial court’s failure to properly swear the jury seriously affected the fairness, integrity, or public reputation of the judicial proceedings in this case and [the] defendant does not even argue that he is actually innocent.” Id . at 118-119. The Court also left unresolved whether the error was merely a trial error of failing to comply with MC R 2.511(H)(1) or whether it was “a structural constitutional error,” because being an unpreserv ed error, the “defendant must satisfy the plain-error standard of Carines in either event.” Cain , 498 Mich at 117 n 4. Nevertheless, the Court criticized the idea that “the structura l nature of the error presumptively establishes the fourth prong” of Carines because such presumption was inconsistent with the Court’s holding in Vaughn , 491 Mich at 654, 667. Cain , 498 Mich at 117 n 4(e) (quotation marks omitted).

The application of the fourth prong of the Carines plain-error test requires a court to engage in a “case-specific and fact-intensive” analysis. Id . at 121. The Court in examining the
facts and circumstances of the cas e before it determined that p urposes of administering an oath to the jury were “alternatively fulfilled in large part by the tri al court’s instructions prescribing the particulars of the jurors’ duties.” Id . 122. The trial court’s instructions plus the jury’s having twice been sworn to give truthful answers concerning their qual ifications led the Cain Court to conclude that the jury underst ood “the dignity and solemnity of the proceedings.” Id . at 123-124.
The Court also observed that the trial judge was “vigilant in a ttempting to ensure that the jury remained fair and impartial throughout the proceedings.” Id . at 125. The Court criticized Allan
because it did not include a “fact -intensive and case-specific inquiry under the fourth Carines prong to assess whether, in lightof any ‘countervailing factor s’ on the record, leaving the error unremedied would constitute a miscarriage of justice, i.e., whe ther the fairness, integrity, or public reputation of the proceedings was seriously affected.” Cain , 498 Mich at 128.

The present case is distinguished from both Allan and Cain because after being selected, the petit jury was administered an oath, albeit one not in the exact words of MCR 2.511(H)(1): the clerk transposed the words “laws” and “evidence.” But MCR 2.511(H)(1) by its plain terms requires only substantial compliance with its suggested text. See Cain , 498 Mich at 124 n 6. Consequently, it is not apparent that an error occurred in this case that was “plain, i.e., clear or
obvious.” Carines , 460 Mich at 763. Even assumi ng that plain error occurred, th e facts and circumstances of this case establish more strongly than those o f Cain that the imperfect oath administered to the jury “did not seriously affect the fairness , integrity, or public reputation of the judicial proceedings.” Cain , 498 Mich at 128. The oath that was administered to the jury together with the trial court’s instructions to the jury concer ning the law and the jurors’ duties ensured that defendant received a fair and impartial trial. Th us, leaving the alleged error uncorrected will not result in a miscarriage of justice. Id . While defendant maintains his innocence, the evidence presented to the jury supports its conc lusion to the contrary, as discussed-12- already. Defendant is not entitle d to relief on the basis of the alleged imperfect jury oath
administered in this case. Id . at 121-128.

Last, defendant argues that the trial court abused its discret ion by admitting certain tracking dog evidence. While defendant cites preliminary discu ssion between the trial court and counsel before the jury was selected concerning such evidence, he does not point to where in the record it was actually admitted or explain how the alleged erro r was outcome determinative. See Lukity , 460 Mich at 495-496. This issue is abandoned. Watson , 245 Mich App at 587.

We affirm.

/s/ Peter D. O'Connell /s/ Jane E. Markey
/s/ Colleen A. O'Brien