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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 10, 2016

v No. 325640 Wayne Circuit Court GREGORY LAMONT GLENN, JR., LC No. 14-006694-FH

Defendant-Appellant.

Before: B OONSTRA , P.J., and M ETER and B ECKERING , JJ.

P ER C URIAM

. Defendant appeals by right his conviction, following a jury tr ial, of unauthorized access of a computer, MCL 752.795(a). Defendant was sentenced to two years’ probation. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Defendant, an officer with the United States Customs and Borde r Patrol (CBP), worked at the Canada-United States border in Detroit, Michigan, during the relevant year of 2013. On January 11, 2013, Amanda Shovlin, with whom defendant had a per sonal relationship, crossed the border from Canada into the United States, but was detained for secondary inspection 1 prior to entry.

Defendant was not at work that day, but returned to work on Jan uary 14, 2013. Video surveillance of the office, in addition to computer monitoring, revealed that defendant searched his TECS computer for Shovlin’s name contrary to CBP’s TECS use policy, which prohibited officers from searching for information regarding family member s and close associates. The policy states in pertinent part:

1 Secondary inspection is a more detailed inspection process for people whose names have been flagged in the Treasury Enfor cement Communication System (TECS) law enforcement database. The TECS database contains detail ed financial, biographical, an d criminal history information.-2- Field Operations employees shall not engage in official busines s involving a family member or a close associate except in the limited circum stances described in 6.2.3 of this section.

* * *

Should circumstances arise in wh ich no disinterested field oper ation employee is on duty and no supervisor on duty[ ,] a CBP employee is authoriz ed to conduct business with close family or associates as provided under [sic ] and list the management directive number.

Further, when an employee accesses the TECS system, a warning b anner is displayed on the screen. The banner states the following: You are accessing a [US] off [sic ] government information syste m which includes this computer, the computer network, all computers connected to this network and all devices and storage media attached to this network or to a computer on this network.

This information system is provi ded for US government authorize d use only.

Unauthorized or improper use or access of this system may resul t in disciplinary action, as well as civil and criminal penalties. By using this information system . . ., you understand and consent to the following:

You have no reasonable expectation of privacy when you use this information system. This includes any comm unications or data transiting st ored on, originated from or directed to this information system.

At any time, and for any lawful government purpose[,] [t]he gov ernment may monitor, intercept, search and seize any communication or data transiting, stored on, originated from or directed t o or from this information sy stem.

The government may disclose or use any communication or data tr ansiting stored on[,] originated from or directed to or from this information s ystem for any lawful government purpose.

You are not authorized to process classified information on thi s information system.

Defendant was convicted of unauthorized access of a computer c ontrary to MCL 752.795(a). This appeal followed.

II. BINDOVER

Defendant argues that he should not have been bound over for t rial because the prosecution failed to present evi dence establishing probable ca use that he had violated-3- MCL 752.795(a), and also that the statute does not even apply t o the conduct of which defendant was found guilty—violation of an internal computer “use” policy . We disagree.

A. STANDARD OF REVIEW

We review “for an abuse of discr etion a district court’s decis ion to bind over a defendant.” People v Hudson , 241 Mich App 268, 276; 615 NW2d 784 (2000). “A circuit court’s decision with respect to a motion to quash a bindover o rder is not entitled to deference because this Court applies the same standard of review to this issue as the circuit court.” Id

. “An abuse of discretion occurs when the court chooses an outcom e that falls outside the range of reasonable and principled outcomes.” People v Unger , 278 Mich App 210, 217; 749 NW2d 272 (2008). Furthermore, “[a] trial court necessarily abuses its d iscretion when it makes an error of law.” People v Waterstone , 296 Mich App 121, 132; 818 NW2d 432 (2012). However, “[t]he decision whether alleged conduct falls within the statutory sco pe of a criminal law involves a question of law, which this Court reviews de novo.” People v Noble , 238 Mich App 647, 658; 608 NW2d 123 (1999).

B. BINDOVER G ENERALLY

To bind a defendant over to circuit court, the magistrate at a preliminary examination must “determine whether a felony was committed and whether ther e is probable cause to believe the defendant committed it.” People v Yost , 468 Mich 122, 125-126; 659 NW2d 604 (2003). Probable cause exists where the evidence is “sufficient to caus e a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt.” Id . at 126 (citation and quotation marks omitted). “In order to establish that a crime has been committed, the prosecution need not prove each element beyond a reasonable doubt, but must present some evidence of each element.” People v Redden , 290 Mich App 65, 84; 799 NW2d 184 (2010). Additionally, “[i]f the evidence conflicts or raises a reasonab le doubt concerning the defendant’s guilt, the defendant should nevertheless be bound over for tria l, at which the trier of fact can resolve the questions.” Id

. C. APPLICATION OF MCL 752.795(a)

Turning to the statute in question, MCL 752.795(a) provides th e following:

A person shall not intentionall y and without authorization or by exceeding valid authorization do an y of the following:

(a) Access or cause access to be made to a computer program, computer, computer system, or computer network to acquire, alte r, damage, delete, or destroy property or ot herwise use the service of a c omputer program, computer, computer system, or computer network.

MCL 752.792 further provides the following relevant definitions :
(1) “Access” means to instruct, communicate with, store data i n, retrieve or intercept data from, or otherwise use the resources of a computer program, computer, computer sys tem, or computer network.-4- * * *

(3) “Computer” means any connect ed, directly interoperable or interactive device, equipment, or facility that uses a computer program or other instructions to perform specifi c operations including logical, arithmetic, or memory functions with or on computer data or a computer program and that can store, retrieve, alter, or communicate the results of the opera tions to a person, computer program, computer, computer system, or computer networ k.

(4) “Computer network” means th e interconnection of hardwire o r wireless communication lines wit h a computer through remote ter minals, or a complex consisting of 2 or more interconnected computers.

(5) “Computer program” means a series of internal or external instructions communicated in a form acceptable to a computer th at directs the functioning of a computer, computer system, or computer network in a manner designed to provide or produce products or results from the com puter, computer system, or computer network.

(6) “Computer system” means a set of related, connected or unconnected, computer equipment , devices, software, or hardware

. (7) “Device” includes, but is not limited to, an electronic, m agnetic, electrochemical, biochemical, hydr aulic, optical, or organic ob ject that performs input, output, or storage functions by the manipulation of elec tronic, magnetic, or other impulses.

The unambiguous language of the s tatute makes clear that a viol ation has occurred when a defendant has: (1) intentionall y and (2) without authorization or by exceeding valid authorization (3) accessed or caused access to be made to a computer program, computer, computer system, or computer network (4) to acquire, alter, damage, delete, or dest roy property or otherwise use the services of a computer program, c omputer, computer system, or c omputer network.

The only published case from this Court substantially discussi ng MCL 752.795 is People v Golba , 273 Mich App 603; 729 NW2d 916 (2007). There, the main issue was whether the 64- year-old defendant’s convict ion under MCL 752.795(a) for using school computers to send pornography and emails of a sexual nature to a 16-year-old stud ent was a “sexual offense” and thus a “listed offense” under the sex offenders registration ac t (SORA), MCL 28.721 et seq

. Id

. at 605, 611-612. In addressing that issue, this Court at least tacitly concluded that the violation of “internal use” policies sati sfied the “without authorization ” and “exceeds authorized access” elements of MCL 752.795(a):

In the present case, the evide nce introduced at trial supporte d the trial court’s findings that defendant violated the school’s computer acceptable use policy by downloading pornography on his school computer and th at he viewed the pornography on the computer in the presence of a 16-year-ol d female student. The evidence also supported the trial court’s finding that defe ndant used the-5- computer to solicit sex from the student. . . . The policy exp ressly prohibits users from accessing pornographic materials or inappropriate text fil es and prohibited users from sending or receiving e -mails that contained “pornogr aphic material” or “inappropriate information.” Def endant’s conduct was sufficien t to support a finding that he intentionally a nd without authorization, or by exceeding valid authorization, accessed or caused access to be made to the comp uter in violation of MCL 752.795. [ Id . at 611-612.]

Golba therefore permits “internal use” policies to define the contou rs of “without authorization” and “exceeds authorized access” in the context of MCL 752.795(a ).

In so applying Golba , we acknowledge the lengths to wh ich this interpretation could be stretched in other circumstances, and that it could be employed to reach even innocuous types of conduct. Certain justices of the Michigan Supreme Court have s imilarly expressed concern about the potential overreach of MCL 752.795. See People v Walker , 491 Mich 931; 813 NW2d 750 (2012) (M ARKMAN , J., concurring). 2

We reiterate Justice M ARKMAN ’s suggestion of legislative consideration of the scope of MCL 752.795, and note that Justice M ARKMAN ’s concerns have been echoed by federal courts tasked with interpreting provisions of the federal Computer Fra ud and Abuse Act (CFAA), 18 USC 1030 et seq. In United States v Nosal , 676 F3d 854 (CA 9, 2012), for example, the United States Court of Appeals for the Ninth Circuit, i n interpreting a provision of the CFAA with similar language, and applying the rule of lenity, concluded th at the phrase “exceeds authorized access” does not extend to violations of employer computer use restrictions, but rather only to individuals whose initial access to a computer is authorized bu t who accesses information and files that they are not authorized to access. The Second Circu it reached a similar conclusion in United States v Valle , 807 F3d 508, 523-528 (2015), in interpreting a different port ion of the CFAA that also used the phrase “exceeds authorized access.” Ot her circuits have reached contrary conclusions. See, e.g., United States v John , 597 F3d 263, 272 (CA 5, 2010) (holding that employee exceeded authorized access when she accessed info rmation from her employer’s database in violation of her employer’s use policy); EF Cultural Travel BV v Explorica, Inc , 274 F3d 577, 583-584 (CA 1, 2001) (holding that violation of an emp loyer’s confidentiality agreement was possibly “exceeding authorized access”); United States v Rodriguez , 628 F3d 1258, 1260-1263 (CA 11, 2010) (holding that the defendant excee ded authorized access when he accessed his employer’s (Social Security Administration) custom er data against office policy to find women to whom to send flowers).

2 Justice M ARKMAN wrote, in agreement with Justice K ELLY ’s dissent to the order denying leave to appeal in that case, “I share the dissenting justice’s conce rn that MCL 752.795 encompasses an extremely broad range of conduct, and further believe that i t potentially extends well beyond even its application in the instant case. Therefore, I write s eparately to urge the Legislature to consider whether it intends to criminalize the full range of co nduct to which the statute potentially extends.”-6- These decisions of federal courts, interpreting a federal stat ute, are of course not binding on this Court in its interpretation of state law, although they may be persuasive. See Abela v General Motors Corp , 469 Mich 603, 606-607; 677 NW2d 325 (2004). And, in the inst ant case, we see no need to determine the full range of conduct to which MCL 752.795 applies. It is undisputed that, while defendant was autho rized to access the T ECS database generally as part of his job, he was explicitly prohibited from accessing any inform ation relating to family members or close associates. The informa tion he accessed regarding Sho vlin was thus information he was not authorized to access. Defendant in fact was aware that he was not permitted to access information regarding persons with whom he had a current or pre vious dating relationship, as he had on one previous occasion informed his supervisor that he ha d been in a dating relationship with a woman who had been selected for secondary inspection and did not query the TECS database regarding her; although th e supervisor testified that he and defendant did not specifically discuss whether defendant was authorized to query this particular person, he testified as to the general policy prohibi ting querying known associates. Further, the trial court heard testimony that defendant had i nquired about this policy in 2010 , that he spoke with Special Agent Koshorek of the Department of Homeland Security, and that she informed him that he was not supposed to query “known associates or family members” in T ECS and emailed him a copy of the relevant portions of the TECS use policy. Thus, even if we were to adopt a narrow construction of the phrase “exc eeding valid authorization” unde r the rationale of the Ninth and Second Circuits, defendant’s c onduct would fall within the cond uct prohibited by the statute. Therefore we conclude that MCL 752.795 applies to defendant’s c onduct in accessing the TECS system to search for information regarding a close associate. Golba , 273 Mich App at 611-612. The computer use policy and banne r made it clear to defendant t hat his use was unauthorized and that he could be subjected to criminal penalties. Further, the statute is not unconstitutional on its face or as applied to defe ndant, as discussed below.

D. PROOF OF ELEMENTS

Because MCL 752.795 applies to defendant’s conduct, we must as sess whether the prosecution presented sufficient evidence at defendant’s prelim inary examination. We conclude that it did; accordingly, defendant was properly bound over for trial. With respect to the first element of the offense—that defendant acted intentionally—CBP I ntegrity Officer David Mansell testified that video surveillance showed defendant usin g his TECS terminal to search for information regarding Shovlin. CBP Internal Affairs Officer Ri chard Wynns also testified that screenshots of defendant’s TECS terminal screen showed him sear ching for information regarding Shovlin. Defendant’s intent may be inferred from cir cumstantial evidence, including the act itself. See People v Hawkins , 245 Mich App 439, 458; 628 NW2d 105 (2001) (“A factfinder can infer a defendant’s intent from his words or fro m the act, means, or the manner employed to commit the offense.”). The second element—that def endant acted without authorization or exceeded vali d authorization—was supported by the testimony of CBP Officer Lavarah Miller, who testified about CBP’s internal rules, regul ations, and policies regarding searching for information regarding close associates and family members. Moreover, Officer Mansell testified that CBP pers onnel were trained and certified annually regarding TECS and its corresponding use policies. The third element—that defendant a ccessed a computer system— was easily supported again by Offi cer Mansell’s and Officer Wyn ns’s testimony that defendant accessed TECS. The fourth element—that defendant acquired prop erty or otherwise used the-7- computer system—was also proven by the referenced testimony fro m Officers Mansell and Wynns, who both testified that d efendant used the TECS computer terminal to search for information regarding Shovlin. In sum, sufficient evidence was presented to show that a “felony was committed” and that there was “probable cause to believe th at defendant committed it.” Yost , 468 Mich at 125-126. As noted, the prosecution was not requi red to prove all the elements beyond a reasonable doubt at preliminary examination. Redden , 290 Mich App at 84.

Moreover, “the presentation of s ufficient evidence to convict at trial renders any erroneous bindover decision harmless.” People v Bennett , 290 Mich App 465, 481; 802 NW2d 627 (2010). Here, the prosecution presented sufficient evidenc e of each element at trial to enable a reasonable juror to convict defendant beyond a reasonable dou bt. See People v Johnson , 460 Mich. 720, 722-723, 597 NW2d 73 (1999).

III. CONSTITUTIONALITY OF MCL 752.795

Defendant argues that MCL 752.795 is unconstitutionally vague because it does not provide adequate notice to a person of ordinary intelligence re garding what conduct is prohibited, and because it lends itself to arbitrary enforcemen t. We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

To preserve the issue of the constitutionality of a statute, th e defendant must raise the issue below. People v Vandenberg , 307 Mich App 57, 61; 859 NW2d 229 (2014). Defendant did not object to the constitu tionality of MCL 752.759 below. Accordingly, this issue is unpreserved for appellate review.

While constitutional issues are generally reviewed de novo on appeal, unpreserved constitutional errors are reviewed for plain error. People v Carines , 460 Mich 750, 764; 597 NW2d 130 (1999). Plain error anal ysis requires three findings: (1) error, (2) that is plain, and (3) that affects substantial rights. Id

. at 763. A plain error will genera lly affect substantial rights when there is a showing of prej udice—“that the error affected t he outcome of the lower court proceedings.” Id . Once the three findings for p lain error are met, “reversal i s warranted only when the plain . . . error resulted in the conviction of an act ually innocent defendant or when an error seriously affected the fai rness, integrity or public repu tation of judicial proceedings independent of the defendant’s innocence.” Id . at 763-764 (citation and quotation marks omitted).

B. CONSTITUTIONALITY OF A STATUTE GENERALLY

“When considering the constituti onality of a statute, we begin with the presumption that statutes are constitutional and we construe statutes consistent with this presumption unless their unconstitutionality is readily apparent.” Vandenberg , 307 Mich App at 62. Statutes are presumed to be constitutional, and the party challenging the st atute has the burden of showing the contrary. People v Sands , 261 Mich App 158, 160, 680 N.W2d 500 (2004). When a party asserts a facial challenge to the constitutionality of a statut e, the party must demonstrate that no circumstances exist under whi ch the statute would be valid. Id . at 160–161.-8- “The fact that a statute may appear undesirable, unfair, unjus t, or inhumane does not of itself render a statute unconstitutional and empower a court to override the Legislature. People v Boomer , 250 Mich App 534, 538; 655 NW2d 255 (2002). A penal statute may be unconstitutionally vague on its face “[if] it fails to provide fair notice of the conduct proscribed, or . . . it is so indefinite that it confers unlimited and unst ructured discretion on the trier of fact to determine whether an offense has occurred.” People v Dillon , 296 Mich App 506, 511; 822 NW2d 611 (2012) (citations and quotation marks omitted). A pen al statute may be vague as applied to a particular defendant if it fails to provide notice that his conduct was prohibited. See People v Lino , 447 Mich 567, 576; 527 NW2d 434, 438 (1994). “Fair or proper notice exists if the statute gives a person of ordinary intelligence a reasonabl e opportunity to know what is prohibited.” Id . “For a statute to be sufficiently definite, its meaning must be fairly ascertainable by reference to judicial interpretations, the com mon law, dictionaries, treatises, or the commonly accepted meanings of words.” Id . (citations and quotations omitted). However, “this Court cannot determine that a statute impermissibly confe rs unstructured and unlimited discretion unless it first concludes that the wording of the st atute itself is vague.” People v Douglas , 295 Mich App 129, 138; 813 NW2d 337 (2011).

C. APPLICATION

MCL 752.795(a) is not unconstitutionally vague, either on its face or as applied to defendant. As an initial matter, although defendant claims to take issue with the phrase “access . . . a computer system . . . to use the service,” defe ndant’s argument principally relates to the phrases “without authori zation” and “exceeding valid aut horization.” Defendant contends that ordinary people are unable to determine what activities mi ght be criminal under the statute, which is a function of how “without authorization” and “exceedi ng valid authorization” are defined. However, we do not agree that the phrases “without au thorization” and “exceeding valid authorization” fail to provide proper notice to a person of ordinary intelligence of the conduct proscribed. As noted, this Court at least tacitly conc luded that internal use policies can establish the contours of “author ization” in the context of MCL 752.795(a). Golba , 273 Mich App at 611-612. A person of ordinary intelligence could theref ore conclude that the violation of an internal use policy could subject an individual to liability under MCL 752.795(a), thus providing fair notice of at leas t one type of conduct that is p roscribed under the statute. See Dillon , 296 Mich App at 511 (holding th at judicial interpretations ma y be relied upon to determine the meaning of a statute). Defendant’s claim that th e statute is vague because it fails to inform ordinary people of its potentially wide reach accordi ngly fails.

Moreover, defendant’s claim that the statute is unconstitution ally vague because it gives unfettered discretion to the trier of fact fails because defend ant cannot show that the wording of the statute—particularly “wit hout authorization” and “exceeding valid authorization”—is vague. See Douglas , 295 Mich App at 138 (“[T]his Court cannot determine that a st atute impermissibly confers unstructured and unlimited discretion unless it first c oncludes that the wording of the statute itself is vague.”). Based on this Court’s previous dec ision in Golba , internal use policies can properly establish the boundaries of “without authorization ” and “exceeding valid authorization,” and accordingly, the two phrases cannot be cons idered vague. Not only can “without authorization” and “exceeding valid authorization” cur tail traditional types of “hacking,” as might be expected, it can also prohibit internal use policy violations. Golba , 273 Mich App at 611-612. The phrases at issue are not vague simply because they prohibit a broad-9- spectrum of conduct. Further, as discussed above, defendant co uld not reasonably have believed that his conduct in accessing the TECs system to investigate so meone he knew personally was authorized. We therefore find defendant’s constitutional chall enge to MCL 752.795(a) to be without merit.

IV. FAILURE TO ADMI NISTER JURY OATH

Defendant also argues that the trial court failed to administe r the jury oath before trial began, thus resulting in structura l plain error requiring rever sal. We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

To preserve a claim that the trial court failed to administer the jury oath, the defendant must object on this ground below. People v Cain , 498 Mich 108, 114; 869 NW2d 829 (2015). Defendant did not object regarding the oath below, and accordin gly, this issue is unpreserved for appellate review.

Unpreserved issues are reviewed for plain error. Carines , 460 Mich at 764. Again, plain error analysis requires three findings: (1) error, (2) that is plain, and (3) that affects substantial rights. Id

. at 763. A plain error will gener ally affect subs tantial rights when there is a showing of prejudice, i.e., “that the erro r affected the outcome of the lower court proceedings.” Id . Even if plain error is found, “reversal is warranted only when the p lain . . . error resulted in the conviction of an actually innocent defendant or when an error s eriously affected the fairness, integrity or public reputation of judicial proceedings independ ent of the defendant’s innocence.” Id . at 763-764 (citation and quot ation marks omitted).

B. ANALYSIS

MCR 6.412(A) and (F) require the oath contained in MCR 2.511(H )(1) to be given to the jury after it is chosen but before trial begins. MCR 2.511(H)( 1) requires the jury to be sworn with the following oath:

Each of you do solemnly swear (or affirm) that, in this action 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. [Quotation marks omitted.]

Also, MCL 768.14 requires the following oath:

You shall well and truly try, and true deliverance make, betwee n the people of this state and the prisoner at bar, whom you shall have in char ge, according to the evidence and the laws of this state; so help you God. [Quotati on marks omitted.]

Our Supreme Court has held that, where a trial court has faile d to properly administer an oath in accordance with statute, courts should engage in a “fac t-intensive and case-specific inquiry under the fourth Carines prong to assess whether, in lig ht of any countervailing factor s-10- on the record . . . leaving the error unremedied would constitu te a miscarriage of justice, i.e., whether the fairness, integrity, or public reputation of the pr oceedings was seriously affected.” Cain
, 498 Mich at 128 (citation and quotation marks omitted). In Cain , the Supreme Court confronted a case where the court clerk had mistakenly administ ered the voir dire oath 3 to the selected jury instead of the refe renced oath contained in MCR 2 .511(H)(1). Id . at 113-114. The Supreme Court concluded that thi s error did not warrant reversa l because the substantive purpose of the jury oath was served:

One of the primary purposes of the oath—to impart to the membe rs of the jury their duties as jurors—was alternatively fulfilled in larg e part by the trial court’s instructions prescribing the particulars of the juror’s duties. Immediately before the swearing of the oath, the trial court instructed the jurors, “I will now ask you to stand and swear to perform your duty to try the case justly and to reach a true verdict.” Following the oath, the court instructed the jurors that it was their responsibility to decide the facts of the case solely on the ba sis of the evidence presented and the law as the cour t gave it to them, that they s hould not consider any other information regarding the trial that was not presente d in the courtroom, that they should not discuss the case among themselves until de liberations begin, and that they should keep an open mind about the case, setting aside any bias and prejudice. The trial court also explained the concepts of the presumption of innocence and reasonable doubt, instructing the jurors to return a verdict of not guilty unless they unanimously decided that the prosecutor had proved each element of the offenses beyond a reasonable doubt. In addition , before giving the final instructions, the trial court told the jurors, “Remember that you have taken an oath to return a true and just verdict based only on the evi dence and my instructions on the law.” And during the final instructions, t he judge reiterated the previously described instr uctions, including that the jury was to decide the case on the basis of the evidence presented during the trial an d the law as the court gave it to them, setting aside all bias and prejudice. T hese instructions encompassed, in even greater detai l, duties equivalent to those prescribed in the oath. [ Cain , 498 Mich at 122-123.]

At the outset, we note that def endant is in error in arguing t hat the record definitively establishes that the trial court failed to administer the jury oath before trial. A lthough the record does not evidence the words of the oath as given, the November 5, 2014 trial transcript reflects the following: “(Jurors sworn at 10:05 am [sic] to hear the fa cts of the case)[.]” Thus, as the prosecution contends, it is likely that the court reporter simp ly failed to transcribe the jury oath. Moreover, as in Cain , the trial court gave the juror s detailed instructions regardi ng their duties. On October 30, 2014, after the jury was selected (but before tr ial started on November 5, 2014), the trial court instructed the jurors, in relevant part, that t hey could not disc uss the case with

3 The voir dire oath is as follows: “You do solemnly swear or a ffirm that you will true answers make to such questions as may be put to you touching upon your qualifications to serve as jurors in the cause now pending before the Court [sic]?” Cain , 498 Mich at 113.-11- anyone, that they should “pay clos e attention to what is said . . . so that [they] can fairly perform [their] sworn duties as jurors, ” that the function of the jury is to determine the facts, weigh credibility, and render a verdict , that the jurors keep an open mind until the entire case is submitted, and that the jurors should not form definite or fixe d opinions until all the evidence and arguments were presented. The trial court’s instructions t o the jury span five transcript pages. Also, the trial court, during final instructions, remin ded the jury, “Remember that you have taken an oath to return a t rue and just verdict based only on the evidence and my instructions on the law.” Additionally, the trial court instru cted the jury at length about its deliberation duties, the concept of reasonable doubt, the impor tance of eschewing bias, and the requirement of only considering the evidence presented. Thus, we conclude, as did the Supreme Court in Cain , that reversal is not required.

Affirmed.

/s/ Mark T. Boonstra /s/ Patrick M. Meter /s/ Jane M. Beckering