If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee, UNPUBLISHED November 14, 2019

v No. 345524 Wayne Circuit Court JAMMAL RAJUE JACKSON, LC No. 15

- 009802

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- FC

Defendant

- Appellant.

Before: M

. J. K ELLY , P .J., and F ORT H OOD and S WARTZLE , JJ.

P ER C URIAM

. Defendant appeals as of right his jury trial convictions of armed robbery, MCL 750.529

, first

- degree home invasion, MCL 750.110a(2)

, assault with intent to commit great bodily harm less than murder (AWIGBH), MCL 750.84 , and felonious assault, MCL 75 0.82 . Defendant was sentenced as a third habitual offender, MCL 769.11, to 12 to 20 years’ imprisonment for the armed robbery conviction, 10 to 20 years’ imprisonment for the first

- degree home invasion conviction, 4 years and 6 months to 10 years’ imprisonment for the AWIGBH conviction, and two to four years’ imprisonment for the felonious assault conviction. D efendant argues that the
prose cution engaged in misconduct by improperly bolstering and commenting on the credibility of the victim, Leslie Chapman, and that defense counsel provided ineffective assistance of counsel by failing to object to the prosecutor’s improper comments. Defendan t also argues that he could not have been convicted of both AWIGBH and felonious assault because the convictions were mutually exclusive, and that there was insufficient evidence to sustain his first

d egree home invasion conviction. Defendant lastly asser ts that his trial counsel was ineffective for failing to object to the trial court’s jury instruction on first

- degree home invasion or otherwise request a special jury instruction on the offense . We affirm.

I. FACTUAL BACKGROU ND

In July 2015, Chapman asked defendant to watch her house while Chapman went out of town to visit her pregnant daughter. Chapman gave defendant a key to her house. When Chapman returned, she asked defendant to return the house key, but defendant did not return the key. On Aug ust 8, 2015, between 2:30 a.m. and 3:00 a.m., Chapman was in her home s leeping- 2

- in her bedroom with Quentin Smith when Smith awoke to a sharp pain in his left cheek and saw defendant standing over him with an aluminum baseball bat. The sound of the strike woke Chapman. Defendant told Smith to collect his things and leave, otherwise defendant would kill Smith. As Smith was leaving, defendant demanded that Smith turn over his wallet. Smith gave defendant the wallet , which contained $15

, and left.

Defenda nt and Chapman argued in the living room about Smith being at Chapman’s house. Angered, defendant held the baseball bat up to Chapman’s head and said that “he ought to hit [Chapman] with the bat.” Thinking that defendant would not follow through with the threat, Chapman told defendant to hit her. Defendant, using the baseball bat, struck the left side of Chapman’s head with “a lot” of force, causing Chapman to stumble . Defendant then

r ummaged through some of Chapman’s belongings before ultimately leavin g the premises.

II. PROSECUTORIAL MI SCONDUCT

Defendant first argues that the prosecutor engaged in misconduct by improperly bolstering and commenting on Chapman’s credibility. Defendant also argues that defense counsel was ineffective for failing to obj ect to the prosecutor’s remarks. We disagree.

To preserve a claim of prosecutorial misconduct, a defendant must timely and specifically object, “ except when an objection could not have cured the error, or a failure to review the issue would result in a m iscarriage of justice. ” People v Callon , 256 Mich App 312, 329; 662 NW2d 501 (2003) . A defendant must also request a curative instruction. People v Bennett , 290 Mich App 465, 475; 802 NW2d 627 (2010) . Defendant did not timely and specifically object to the prosecutor’s allegedly improper remarks during her closing argument, nor did defendant request a curative instruction. Therefore, this issue is unpreserved.

Ordinarily, a claim of prosecutorial misconduct is reviewed de novo to determine if a defe ndant was denied a fair and impartial trial. People v Thomas , 260 Mich App 450, 453; 678 NW2d 631 (2004) . However, when a claim of prosecutorial misconduct is unpreserved, “appellate review is for outcome

- determinative, plain error.” People v Unger , 278 Mich App 210, 235; 749 NW2d 272 (2008) . “To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” Pe ople v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999) . “The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Id

. Reversal is only warranted if the plain error leads to “the conviction of an actually innocent defendant,” or where an error affects the “fairness, integrity, or public reputation” of the judicial proceedings. Id . at 763

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. To properly preserve an ineffective assistance of counsel claim, a defendant mus t move for a new trial or a Ginther 1 hearing in the trial court. People v Payne , 285 Mich App 181, 188; 774 NW2d 714 (2009)

. Defendant did not move for a new trial or a Ginther hearing, and

1 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973)

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- t herefore, this issue is unpreserved. The determination of whether a defendant has been deprived of the effective assistance of counsel presents a mixed question of fact and law. People v Trakhtenberg , 493 Mich 38, 47; 826 NW2d 136 (2012) . The trial court’s factual findings are reviewed for clear error, while its constitutional determinations are reviewed de novo. Id

.
“ Where claims of ineffective assistance of counsel have not been preserved, our review is limited to errors apparent on the record. ” People v Matuszak , 263 Mich App 42, 48; 6 87 NW2d 342 (2004)

. Issues of prosecutorial misconduct are decided on a case

- by

- case basis, with the prosecutor’s remarks reviewed in the context within which they were made

. People v Mann , 288 Mich App 114, 119; 792 NW2d 53 (2010)

. Generally, “the pros ecutor cannot vouch for the credibility of his witnesses to the effect that he has some special knowledge concerning a witness’ [s] truthfulness.” People v Bahoda , 448 Mich 261, 276; 531 NW2d 659 (1995)

. However, “a prosecutor may comment on his own witne sses’ credibility during closing argument, especially when there is conflicting evidence and the question of the defendant’s guilt depends on which witnesses the jury believes.” Thomas , 260 Mich App at 455 . “The prosecutor’s statements are to be evaluate d in light of defense arguments and the relationship the comments bear to the evidence admitted at trial .” People v Mullins , 322 Mich App 151, 172; 911 NW2d 201 (2017) (quotation marks and citation omitted).

Defendant argues that the prosecutor made th ree improper remarks during her closing argument concerning Chapman’s credibility. Defendant asserts that the prosecutor told the jury that Chapman had no reason to lie, that she told the truth, and that she had no reason to dislike defendant. In context , the prosecutor had just finished summar izing Chapman’s testimony wherein Chapman identified defendant as the perpetrator of the home invasion and assaults. The prosecutor noted :
[Chapman] has no reason to lie to you, ladies and gentlemen, about somethi ng like this.

Did she seem to have a good memory? She remembered the basics of what happened to her. She remembered who the person was, and how this happened to her.

Did she seem to make an honest effort to tell the truth? Did she seem to evade questi ons or argue with the lawyers? She had no reason to argue with the lawyers and she did not. She told the truth. She told you what she remembered.

During the prosecutor’s rebuttal argument, responding to defense counsel’s argument that Chapman did not actually know the identity of the person who committed the home invasion and assaults, the prosecutor stated:

As far as identification she’s told you several times that this is him. She has no reason to tell you that it’s somebody else. If it was somebody else who went in there and told you

— if somebody else who went in there and did this to her she’s scared she’ s frighten [sic] for her life. She’s scared that this person would be coming back. Wouldn’t she want that person to be the person who gets- 4

- in trouble for this? Not some person that she knew. She has no reason to dislike or get [defendant] in trouble ex cept for the fact that he was the one who did this to her.

Considering the prosecutor’s statements in context, the remarks were proper comments about the evidence presented at trial and Chapman’s testimony. The prosecutor was asserting that Chapman’s te stimony was credible, and during the prosecution’s rebuttal argument, the prosecutor was specifically addressing defense counsel’s closing argument to the contrary

. Defendant’s theory of the case was that defendant was not the individual who committed the crimes, and that Chapman was trying to frame defendant for the crimes . To combat defendant’s arguments, the prosecution asserted that Chapman had no reason to lie, that she told the truth, and that she had no reason to frame defendant. These remarks did not suggest that the prosecutor had some special knowledge concerning Chapman’s truthfulness, and were proper under the circumstances

. Mullins , 322 Mich App at 172

. Moreover, e ven assuming for the sake of argument that the prosecution’s remarks concerni ng Chapman’s credibility were improper, the trial court instructed the jury that the “[l]awyers’ statements and arguments are not evidence, but are only meant to help you understand [the] evidence and each side’s legal theories.” And, we have noted before that “[j] urors are presumed to follow their instructions, and instructions are presumed to cure most errors.” People v Abraham , 256 Mich App 265, 279; 662 NW2d 836 (2003) (citation omitted). Accordingly, the jury was presumed to have not considered the prosecutor’s remarks concerning Chapm an’s credibility as evidence.

Finally, we note defendant’s argument that his counsel was ineffective for failing to object to the prosecutor’s allegedly improper remarks during closing arguments. H aving held that the prosecutor did not engage in misconduct during her closing argument, however, we cannot conclude that defense counsel was ineffective for failing to object to the prosecutor’s remarks. See People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010) (“ F ailing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel. ”). Defendant has not established ineffective assistance with respect to this issue.

III

. MUTUALLY EXCLUSIVE V ERDICTS

Defendant next argues that his felonious assault conviction must be vacated because defendant’s felonious assault conviction required a factual finding that defendant did not have intent to do great bodily harm less tha n murder, while the AWIGBH conviction required the opposite finding

— that defendant did have intent to do great bodily harm less than murder. We disagree.

Defendant failed to raise this issue below, and it is therefore unpreserved. See People v Metamora Water Serv, Inc , 276 Mich App 376, 382; 741 NW2d 61 (2007) (“ For an issue to be preserved for appellate review, it must be raised, addressed, and decided by the lower court. ”). Although this Court generally reviews questions regarding inconsistent verdicts de novo, People v Russell , 297 Mich Ap p 707, 722 ; 825 NW2d 623 (2012)

, “because defendant’s issue is unpreserved, this Court reviews the issue for plain error a ffecting his substantial rights, ” People v Perry , 317 Mich App 589, 600; 895 NW2d 216 (2016)

. As stated previously, a finding of plain- 5

- error requires (1) an error to have occurred that was (2) clear or obvious and that (3) affected defendant’s substantial rights. Carines , 460 Mich at 763

. An error affects substantial rights when it affects the outcome of the proceedings, and reversal is only warranted if the error leads to “the conviction of an actually innocent defendant,” or where an error affects the “fairness, integrity, or public reputation” of the judicial proceedings. Id . at 763

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. The parties arguments concerning this issue a re centered on the application of People v McKewen , 326 Mich App 342, 346; 926 NW2d 888 (2018) , held in abeyance 924 NW2d 553 (2019) . Defendant argues that the case r equires this Court to vacate defendant’ s felonious assault conviction, while t he prosecut ion argues that McKewen is distinguishable. The prosecution alternatively contends that McKewen was wrongly decided and goes against established caselaw

. We need not address whether the case was wrongly decided, because we agree that it is distinguishabl e. 2

In McKewen , the defendant was convicted of AWIGBH and felonious assault after stabbing the complainant in the chest. McKewen , 326 Mich App at 346 . Just as in this case, the defendant argued that the trial court could only enter a judgment as to one o f the convictions because of the language of the relevant statutes:

The crime of assault with intent to do great bodily harm is defined by MCL 750.84(1)(a)

. That statute provides that a person who “[a]ssaults another with intent to do great bodily harm , less than the crime of murder” is guilty of a felony. The crime of felonious assault is defined by MCL 750.82(1) , which provides that “a person who assaults another person with a

. . . dangerous weapon without intending to commit murder or to inflict gr eat bodily harm less than murder is guilty of a felony

. . . .” [ Id . at 352 (citations omitted).]

This Court determined that an AWIGBH conviction and a felonious assault conviction are mutually exclusive because “[b] y convicting defendant [of AWIGBH]

, [th e jury] made a finding

— one we may not disturb

— that defendant acted with the intent to do great bodily harm. But that finding is inconsistent with felonious assault as defined by MCL 750.82

. ” Id . at 353

. This Court explained that, in a case involving a s ingle assault, a defendant cannot commit both AWIGBH and felonious assault because a defendant “cannot both intend and yet not intend to do great bodily harm less than murder.” Id

. (quotation marks and citation omitted)

.

2 It is worth noting that the prosecution’s argument is that McKewen goes against our Supreme Court’s decision in People v Doss

, 406 Mich 90, 99; 276 NW2d 9 (1979)

. However, in McKewen , this Court addressed that exact issue and determined that there were important factual differences between the two cases. McKewen , 326 Mich App at 353

- 354 . P ublished opinions of this Court have bi nding precedential effect on both the trial court and subsequent panels of this Court unless and until our Supreme Court takes action. MCR 7.215(J)(1) ; Metamora Water Serv, Inc , 276 Mich App at 387

- 388 . Thus, were this case to present the same or substan tially similar issues to those in McKewen , this panel would be required to foll ow the rule of law established therein

. People v Robar , 321 Mich App 106, 117; 910 NW2d 328 (2017) , citing Griswold Props, LLC v Lexington Ins Co , 276 Mich App 551, 563; 741 NW 2d 549 (2007)

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- McKewen is distinguishable from the case at hand. In McKewen , the defendant committed one act of assault against the victim, whereas, in this case, defendant committed two acts of assault against Chapman. Id . at 346 . The first assault occurred when defendant held the bat up to Chapma n’s head and threatened to strike Chapman, which was the basis for the felonious assault conviction. See People v Johnson , 407 Mich 196, 210; 284 NW2d 718 (1979) (“[A] simple criminal assault is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery .”) (quotation marks and citation omitted; emphasis added). The second assault occurred when defendant actually struck Chapman’s head with the bat, which was the basis for the AWIGBH conviction. McKewen
, therefore

, does not apply because, i n this case, defendant committed two assaultive acts, and each act supports a corresponding conviction.

IV

. SUFFICIENCY OF THE E VIDENCE

Defendant next argues that there was insufficient evidence that defendant broke and entered into Chapman’s house to sustain the first

- degree home invasion conviction. We disagree.

“A challenge to the sufficiency of the evidence in a jury trial is reviewed de novo, viewing the evidence in th e light most favorable to the prosecution, to determine whether the trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt.” People v Gaines , 306 Mich App 289, 296; 856 NW2d 222 (2014)

. The crime of first

- degree home invasion is codified at MCL 750.110a(2) , which states :
A person who breaks and enters a dwelling with intent to commit a felony, larceny, or assault in the dwelling, a person who enters a dwelling without permission with intent to commit a felony, larceny, or assault in the dwelling, or a person who breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a felony, larceny, or assault is guilty of home invasion in the first degree if at any time while the person is entering, present in, or exiting the dwelling either of the following circumstances exists:

(a) The person is armed with a dangerous weapon.

(b) Another person is lawfully pres ent in the dwelling.

The prosecution can establish first

- degree home invasion “by providing ‘alternative elements’ that must be established, i.e., each element of first

- degree home invasion can be established by satisfying one of two alternatives set forth in the statute. ” People v Baker , 288 Mich App 378, 384; 792 NW2d 420 (2010) . Accordingly, the alternative elements of first

- degree home invasion are as follows:

Element One: The defendant either :
1. breaks and enters a dwelling or

2. enters a dwelling w ithout permission.- 7

- Element Two: The defendant either:

1. intends when entering to commit a felony, larceny, or assault in the dwelling or

2. at any time while entering, present in, or exiting the dwelling commits a felony, larceny, or assault.

Element Thre e: While the defendant is entering, present in, or exiting the dwelling, either:

1. the defendant is armed with a dangerous weapon or

2. another person is lawfully present in the dwelling. [ People v Wilder , 485 Mich 35, 43; 780 NW2d 265 (2010) (second and third emphasis omitted).]

Defendant argues that there was insufficient evidence that defendant broke and entered Chapman’s house. However, as stated in Wilder , breaking and entering a dwelling is one of two alternative elements, with the oth er alternative element being entry of a dwelling without permission. Id

. At trial, Chapman testified that she gave defendant a key to her house while Chapman was visiting her daughter, so that defendant could look after the house and mow the lawn. When Chapman returned home, she requeste d that defendant return the key, and d efenda nt refused . Chapman testified that she did not give defendant permission to enter her house, and y et, on the night of the assault, defendant did just that. Then, w hile defenda nt was inside Chapman’s house, defendant assaulted Chapman and Smith, hitting both individuals in the head with an aluminum baseball bat. Defendant also stole Smith’s wallet, which contained $15. During the period of time that defendant was inside Chapman’s house, both Chapman and Smith were lawfully present.

Viewed in the light most favorable to the prosecution, there was sufficient evidence that defendant entered Chapman’s house without permission while Chapman and Smith w ere lawfully inside the home , assaulted Chapman and Smith with a baseball bat, and committed a larceny by stealing Smith ’s wallet . Therefore, there was sufficient evidence to sustain defendant’s first

- degree home invasion conviction.

V . INEFFECTIVE ASSIS TANCE OF COUNSEL

Defendant lastly argues that defense counsel provided ineffective assistance of counsel by failing to request a jury instruction that “lack of permission” is an element of first

- degree home invasion. We disagree.

This issue is unpreserv ed because defendant failed to move for a new trial or a Ginther hearing. Payne , 285 Mich App at 188

. The determination of whether a defendant has been deprived of the effective assistance of counsel presents a mixed question of fact and law. Trakhtenbe rg , 493 Mich at 47 . The trial court’s factual findings are reviewed for clear error, while its constitutional determinations are reviewed de novo. Id

. “ Where claims of ineffective assistance of counsel have not been preserved, our review is limited to e rrors apparent on the record. ” Matuszak , 263 Mich App at 48

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- “ Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise. ” People v Rodgers , 248 Mich App 702, 714; 645 NW2d 294 (2001) . To succeed on a claim of ineffective assistance of counsel, “a defendant must establish that counsel’ s representation fell below an objective standard o f reasonableness and that t here is a reasonable probability that, but for counsel ’ s unprofessional errors, the result of the procee ding would have been different.” People v Vaughn , 491 Mich 642, 669; 821 NW2d 288 (2012) (quotation marks and citation omitted). The question of whether counsel performed reasonably is “ an objective one and r equires the reviewing court to ‘ determin e whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of profe ssionally competent assistance.’ ” Id

. at 670 , quoting, Strickland v Washington , 466 US 668, 690; 104 S Ct 2052; 80 L Ed 2d 674 (1984) . “ In ex amining whether defense counsel’ s performance fell below an objective standard of reasonableness, a defendant must overcome the strong presumption that counsel’ s performance was born from a sound trial strategy. ” Trakhtenberg

, 493 Mich at 52

. “ To demo nstrate prejudice, the defendant must show the existence of a reasonable probability that, but for counsel ’ s error, the result of the proceeding would have been different. ” People v Carbin , 463 Mich 590, 600; 623 NW2d 884 (2001)

. Defendant argues that de fense counsel was ineffective for failing to object to the jury instructions because the jury was not instructed that defendant could not break or enter into a home that he had permission to enter. The trial court gave the following jury instruction:

Def endant is also charged with home invasion in the first degree. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

First, defendant entered a dwelling without permission. It does not matter whether t he defendant got his entire body inside.

Second, when the defendant entered, was present in, or leaving the dwelling he did commit a felonious assault which is a felony.

Third, when the defendant entered, was present in, or was leaving the dwelling anot her person was lawfully present in the dwelling.

Defendant’s argument is without merit because the prosecution’s theory of the case, reflected by the given jury instruction, was that defendant entered Chapman’s home without permission, as opposed to the a lternative element of breaking and entering. Therefore, it is irrelevant whether defendant could break and enter a dwelling that he had permission to enter. Moreover, the trial court did give an instruction that lack of permission is an element of first

degree home invasion: “First, defendant entered a dwelling without permission.”

To the extent defendant’s argument could be construed as asserting that defense counsel should have requested a special jury instruction that defendant could not be convicted of first

degree home invasion if he had permission to enter Chapman’s home, this argument also fails. Such an instruction is implicit in the standard jury instruction, which explains that, for the jury to convict defendant of first

- degree home invasion, d efendant must have entered Chapman’s home without permission. The corolla ry to this instruction is that, i f defendant had permission to enter- 9

- Chapman’s hom e, the first element was not satisfied, and the jury would have been required to acquit defendant o f the offense . Thus, defendant’s requested jury instruction was implicit in the instructions actually given by the trial court . See People v Johnson , 128 Mich App 618, 623; 341 NW2d 160 (1983) (“ The cou rt’ s instruction requiring the jury to find that pene tration was accomplished by force or coercion implicitly required the jury to find that the complainant did not consent to sexual intercourse before it could find defendant guilty. ”).

Because defendant’s requested jury instruction was implied by the sta ndard jury instructions, requesting the special jury instruction would have been duplicative and
unnecessary. “ Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel. ” Ericksen , 288 Mich App at 201 . Moreover, defense counsel is not ineffective for failing to request a different jury instruction when the trial court properly instructed the jury. People v Cooper , 236 Mich App 643, 659; 601 NW2d 409 (1999) . Therefore, defendant failed to e stablish that defense counsel was ineffective for failing to request a jury instruction that defendant could not break and enter into a home that he had permission to enter.

VI

. CONCLUSION

The prosecution did not engage in misconduct by commenting on Chapman’s credi bility during closing arguments, and be cause the prosecution did not engage in misconduct, defense counsel was not ineffective for failing to object to the prosecutor’s comments. Additionally, d efendant’s AWIGBH and felonious assault convic tions were not mutually exclusive becau se the convictions were each supported by separate assaultive acts. There was also sufficient evidence to sustain defendant’s first

- de gree home invasion conviction. Finally, defendant’s trial counsel was not ineffec tive for declining to request a duplicative jury instruction.

Affirmed.

/s/ Michael J. Kelly /s/ Karen M. Fort Hood /s/ Brock A. Swartzle