-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant, UNPUBLISHED March 15, 2016

v No. 323081 Wayne Circuit Court RECO NATHANIEL SIMMONS, LC No. 13-004236-FC

Defendant-Appellee.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 323162 Wayne Circuit Court AQUIRE BERNARD SIMMONS, LC No. 13-004236-02-FC

Defendant-Appellee.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 323229 Wayne Circuit Court FREDRICK KYLE YOUNG, LC No. 13-004223-FC

Defendant-Appellee.

Before: T ALBOT , C.J., and W ILDER and B ECKERING , JJ.

P ER C URIAM

.-2- The instant appeals arise out of an armed robbery and murder t hat occurred in August, 2012. After a joint trial before a single jury, defendant Reco Nathaniel Simmons (Reco) was convicted of second-degree murder, 1 armed robbery, 2 first-degree home invasion, 3 and possession of a firearm during the commission of a felony (felo ny-firearm). 4 His brother and codefendant Aquire Bernard Simmons was convicted of assault wit h intent to do great bodily harm less than murder (AWIGBH), 5 armed robbery, and first-degree home invasion. Defendant Fredrick Kyle Young was convicted of first-degree home invasion . We affirm.

I. FACTS

On August 8, 2012, Michael Montgomery (Montgomery) concocted a plan to rob the home of Melissa Villneff (Melissa). He enlisted the help of Re co and Aquire. These two sought out four additional men to help: Fredrick, Michael Evans (Evans ), Felando Hunter (Felando), and Brandon Crawford (Brandon). That evening, Evans drove the grou p in his Explorer to Melissa’s home. When the group first arrived, they noticed a group of yo ung children playing outside, and decided against going forward w ith their plan at that time. Bu t a short time later, armed with an SK assault rifle, revolvers, and a baseball bat, the men execut ed their plan.

Evans stayed behind as the getaway driver. Montgomery, who kn ew that Patrick Villneff was at the house, lured him away by going for a walk with him a nd Patrick’s dog. Fredrick, Felando, Reco, and Aquire entered the house. Apparently to the ir surprise, Terrance Villneff (Terrance) was inside, playing a video game. One of the men st ruck him in the face. Armed with the rifle, Felando ordered Terrance to a bedroom in the ba ck of the house. There, Aquire beat him with the baseball bat at Felando’s direction. The oth er men searched the home. Eventually, the men left. But as they did, they noticed that M elissa’s father and next-door neighbor, John Villneff, was standing on his porch and calling 911. John had been alerted to the robbery by one of the children, who had seen the men enter Meli ssa’s home. Reco fired a few shots from his revolver toward John, and Felando fired several more with the assault rifle. John was struck by one of these bulle ts and died shortly after.

II. DOCKET NO. 323081

In Docket No. 323081, Reco argues that counsel was ineffective for admitting in closing argument Reco was guilty of murder, but only in the second degr ee. We disagree. “Whether a person has been denied effective assistance of counsel is a mix ed question of fact and

1 MCL 750.317. All three defendants were charged with first-deg ree felony murder, MCL 750.316, assault with intent to commit murder, MCL 750.83, arme d robbery, and first-degree home invasion.

2 MCL 750.529.

3 MCL 750.110a(2).

4 MCL 750.227(b).

5 MCL 750.84.-3- constitutional law. A judge must first find the facts, and the n must decide whether those facts constitute a violation of the d efendant’s const itutional right to effective assistance of counsel.” 6 But “[b]ecause [Reco] failed to move for a new trial or request a Ginther [7] hearing below, our review of this issue is limited to mistakes apparent on the app ellate record.” 8 “If the record does not contain sufficient detail t o support [Reco]’s ineffective a ssistance claim, then he has effectively waived the issue.” 9

To be entitled to a new trial, Reco “must show that (1) counse l’s performance fell below an objective standard of reasona bleness and (2) but for counsel ’s deficient performance, there is a reasonable probability that the outcome would have been diffe rent.” 10 “In examining 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.” 11 “This Court will not substitute its judgment for that of coun sel regarding matters of trial strategy, nor will it assess counsel’s competence with th e benefit of hindsight.” 12

At trial, substantial evidence of Reco’s involvement in the cr imes was presented. This evidence included multiple witnesses who testified that Felando told Demerious Cunningham (Demerious) that Reco shot John, as well as Reco’s statement to his aunt, in which Reco admitted firing at John. Recognizing that this evidence would likely result in a murder conviction, defense counsel argued in closing that “the verdict in this case is guilty. But the question is guilty of what? Is it first degree—excuse me. Fir st degree felony murder? Is it second degree?”

Reco now argues that by admitting guilt, trial counsel was ine ffective. As the United States Supreme Court has recogni zed, in cases where a client’s guilt is clear, such a strategy may well be reasonable. 13 Given the evidence admitted at trial, which overwhelmingly de monstrated that Reco was a participant in a robbery during which a victim was shot and killed, and moreover, that Reco was likely the shooter, pleading for lenien cy in the form of a sentence of second-degree murder was a reasonable strategy. It was also su ccessful. Despite strong evidence that Reco was guilty of first-degree murder, the jury convicted him only of second-

6 People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002).

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

8 People v Davis , 250 Mich App 357, 368; 649 NW2d 94 (2002).

9 Id

.
10 People v Trakhtenberg , 493 Mich 38, 51; 826 NW2d 136 (2012).

11 Id . at 52.

12 People v Rockey , 237 Mich App 74, 76-77; 601 NW2d 887 (1999).

13 See Florida v Nixon , 543 US 175; 125 S Ct 551; 160 L Ed 2d 565 (2004) (recognizing that it may well be a reasonable trial strategy to admit guilt to a les ser offense in an attempt to avoid the potential consequences of a finding of guilt of a higher offens e).-4- degree murder, thereby allowing Reco to avoid the mandatory sen tence of life imprisonment without parole that would attach to a first-degree murder convi ction. 14 We will “not secondguess counsel’s trial tactic of admitting guilt of a lesser off ense.” 15

Reco also argues that counsel was ineffective for failing to c onsult with Reco before committing to this strategy. The existing record, however, doe s not disclose whether counsel did or did not discuss this strategy with Reco. While Reco express ed his dissatisfaction with counsel’s closing argument to th e trial court, he did not clear ly state that counsel proceeded without Reco’s knowledge. Further , the trial court’s comments, with which Reco agreed, indicated he had spoken with counsel regarding the strong likel ihood that he would be convicted, which was the very reason counsel adopted the strategy. And de spite the trial court suggesting that an evidentiary hearing would be necessary to resolve the i ssue, Reco never sought an evidentiary hearing. Thus, counsel was never given the opportu nity to explain whether he discussed this strategy with Reco, and the trial court was neve r given the opportunity to resolve the question. Because the existing record does not support Rec o’s claim of ineffective assistance of counsel, he has effectively waived the challenge. 16

III. DOCKET NO. 323162

A. JUDICIAL BIAS

In Docket No. 323162, Aquire first argues that he was deprived of a fair trial by comments made by the trial court during voir dire. We disagree . Because Aquire failed to raise any such challenge in the trial court, we review the issue for plain error affecting his substantial rights. 17

“A trial judge’s conduct deprives a party of a fair trial if a trial judge’s conduct pierces the veil of judicial impartiality.” 18 “A judge’s conduct pierces this veil and violates the constitutional guarantee of a fa ir trial when, considering the totality of the circumstances, it is reasonably likely that the judge ’s conduct improperly influence d the jury by creating the appearance of advocacy or partiality against a party.” 19 “Furthermore, the party who challenges

14 MCL 750.316(1) (“[A] person who commits . . . first degree mur der [] shall be punished by imprisonment for life without eligibility for parole[.]”).

15 People v Emerson (On Remand) , 203 Mich App 345, 349; 512 NW2d 3 (1994).

16 Id

. We note that Reco does not ask thi s Court to remand for an evid entiary hearing to resolve the issue. In fact, he takes the opposite position, stating th at “an additional determination in the lower court is not needed for review.”

17 People v Jackson , 292 Mich App 583, 597; 808 NW2d 541 (2011).

18 People v Stevens , 498 Mich 162, 170; 869 NW2d 233 (2015).

19 Id . at 171.-5- a judge on the basis of bias or prejudice must overcome a heavy presumption of judicial impartiality.” 20

During voir dire, after a potenti al juror stated that she work ed for an attorney, the trial court explained that the jury would be required to follow the l aw as articulated by the trial court. Aquire claims that the followi ng comment deprived him of a fair trial:

Thank you very much, and I want all jurors to know this is not an ego thing. It is a legal requirement. The law that I give you is being taken down in writing.

If we allow you to use the law that somebody told you in the h allway, or at an office party, or anyplace else, a defendant couldn’t get a f air trial because then the Court of Appeals could ne ver know what law was used.

Aquire contends that by referenci ng the possibility of an appe al, the trial court conveyed to the jury that Aquire was guilt y and would be pursuing an app eal. Fairly taken in context, the trial court’s comment made no suc h suggestion. The trial court simply explained one reason why it was important that the jury follow the instructions provided by the court. Aquire was not deprived of a fair trial.

B. STATEMENTS AGAINST INTEREST

Aquire next argues that the tri al court violated his due proce ss rights by admitting hearsay statements under the exception for statements against interest. 21 We disagree. “This Court reviews de novo both constitutional claims and preliminary ques tions of law regarding admissibility of evidence.” 22 This Court reviews “the trial court’s ultimate decision regar ding admissibility of evidence for an abuse of discretion.” 23 “An abuse of discretion occurs when [the] trial court’s decision is outside the range of principled outcomes.” 24

At the outset, it appears that the parties and the trial court erroneously read our Supreme Court’s decision in People v Taylor 25 and its effect on the Court’s prior decision, People v Poole

. 26 In Poole , our Supreme Court addressed the admissibility of statements a gainst interest

20 Cain v Dep’t of Corrections , 451 Mich 470, 497; 548 NW2d 210 (1996).

21 MRE 804(b)(3).

22 People v Duenaz , 306 Mich App 85, 90; 854 NW2d 531 (2014).

23 Id

.
24 Id

.
25 People v Taylor , 482 Mich 368; 759 NW2d 361 (2008).

26 People v Poole , 444 Mich 151; 506 NW2d 505 (1993), abrogated in part by Taylor , 482 Mich 368.-6- under MRE 804(b)(3) and the Confr ontation Clause of the Sixth A mendment. 27 The Court first determined that the entire statement at issue in Poole was admissible under MRE 804(b)(3). 28 The Court then “consider[ed] whe ther admission of [the] stateme nt violate[d]” the Confrontation Clause. 29 The Court explained that the statement did not violate the Co nfrontation Clause if the declarant was “unavailable as a witness and his statement bears adequate indicia of reliability or falls within a firmly root ed hearsay exception.” 30 The Court declined to determine whether MRE 804(b)(3) was a firmly rooted h earsay exception, and instead, c onsidered whether the statement at issue bore adequate indicia of reliability. 31 The Court turned to several factors to decide the question:

In evaluating whether a statemen t against penal interest that inculpates a person in addition to the declarant bears sufficient indicia of reliability to allow it to be admitted as substantive evidence against the other person , courts must evaluate the circumstances surr ounding the making of the statem ent as well as its
content.

The presence of the following factors would favor admission of such a statement: whether the statement was (1) voluntarily given, (2) made contemporaneously with the events referenced, (3) made to famil y, friends, colleagues, or confederates—that is, to someone to whom the dec larant would likely speak the truth, and (4) uttered spontaneously at the in itiation of the declarant and without prompti ng or inquiry by the listener.

On the other hand, the presence of the following factors would favor a finding of inadmissibility: whether the statement (1) was made to law enforcement officers or at the prompting or inquiry of the list ener, (2) minimizes the role or responsibility of the declarant or shifts blame to the accomplice, (3)

27 See Poole , 444 Mich at 157-166.

28 Id . at 157-162. As it pertained t o MRE 804(b)(3), the pertinent question in Poole was whether statements made by a declaran t implicating another person, but made in a narrativ e of events also inculpating the declarant, were admissible. Id . Poole argued that “onl y those portions of a statement that directly inculpa te the declarant [could] be admi tted as substantive evidence.” Id

. at 161. The Court rejected this formulation of MRE 804(b)(3), holding that “where, as here, the declarant’s inculpation of an accomplice is made in the context of a narrative of events, at the declarant’s initiative without a ny prompting or inquiry, that a s a whole is clearly against the declarant’s penal interest and as such is reliable, the whole s tatement—including portions that inculpate another—is admissible as substantive evidence at tria l pursuant to MRE 804(b)(3).” Id

.
29 Id . at 162.

30 Id

.
31 Id . at 163-164.-7- was made to avenge the declarant or to curry favor, and (4) whe ther the declarant had a motive to lie or distort the truth. [32]

In the trial court, the prosecutor argued that these factors w eighed in favor of admitting the statements. Each defendant contested the issue, and all fo cused largely on the question of whether the statements were made sufficiently close in time to the crimes to be considered contemporaneous. The trial court ruled that the statements wer e contemporaneous, and thus, were nontestimonial and did not implicate the Confrontation Cla use. This analysis, based on Poole ’s formulation of the Confrontation Clause question, was errone ous because Taylor has since abrogated that formulation:

We hold that the portion of Poole pertaining to the requirements of the Confrontation Clause is no longer good law because it was premi sed on Ohio v Roberts , 448 US 56; 100 S Ct 2531; 65 L Ed 2d 597 (1980), which has be en overruled by Crawford v Washington , 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004), and Davis v Washington , 547 US 813; 126 S Ct 2266 165 L Ed 2d 224 (2006). Because the hearsay statements in this case were n ontestimonial, they do not implicate the Confrontation Clause, Davis , supra at 821, and their admissibility is governed solely by MRE 804(b)(3). [33]

On appeal, Aquire s imilarly looks to the Poole “indicia of reliability” factors to argue that the admission of the statements violated his constitutional rig hts. Specifically, he argues that the statements were not made contemporaneously with the crimes, “we re not spontaneous but instead in response to questioni ng[,]” and that “all of the wit nesses had [a] motive to lie regarding the alleged statements as a result of arrests and thr eats of prosecution by the police.” These inquiries are of no relevance to this partic ular matter.

Rather, as explained in Taylor , there are two relevant inquiries to be made when a prosecutor seeks to admit statem ents under MRE 804(b)(3) that i nculpate a defendant: whether the statements are testimonial, implicating the Confrontation C lause, and whether the statements are admissible under MRE 804(b)(3). Here, the statements were not testimonial “because they were made informally to an acquaintance, not during a police in terrogation or other formal proceeding, . . . or under circumstances indicating that their primary purpose was to establish or prove past events potentially relevant to a later criminal pros ecution[.]” 34 Thus, admission of the statements did not violate the Confrontation Clause. 35

32 Id . at 165.

33 Taylor , 482 Mich at 374.

34 Id . (quotation marks and citations omitted).

35 Id

.-8- It is also clear that the statements were admissible under MRE 804(b)(3), which allows the admission of statements agains t interest when the declarant is unavailable to testify. Such statements are defined as:

A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the decl arant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it t o be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the ac cused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. [36]

Aquire does not argue that the de clarants were available, nor was any such claim raised in the trial court. There is no doubt that the statements were ag ainst the penal interest of the declarants, such “that a reasonable person in the declarant’s p osition would not have made the statement unless believing it to be true.” 37 In every statement, the declarant admitted to recently participating in an armed robbery that resulted in a person’s d eath. 38 The final sentence of MRE 804(b)(3) is of no relevance to t his matter, as the statements were not “offered to exculpate the accused . . . .” 39 Thus, there is no need to consider whether “corroborating cir cumstances clearly indicate[d] the trustworthiness of the statement[s].” 40 Accordingly, the statements were admissible under MRE 804(b)(3).

We note that the factors discussed in Poole are not entirely without relevance in Michigan’s jurisprudence. In People v Barrera , our Supreme Court considered whether statements against the declarant’s penal interest, but which te nded to exculpate the accused, could be admitted by the defendant. 41 In examining MRE 804(b)(3)’s final sentence, i.e., whether corroborating circumstances indicating that such exculp atory statements were

36 MRE 804(b)(3).

37 MRE 804(b)(3).

38 We note that Aquire does not make any meaningful argument reg arding whether those portions of the statements inculpating him, rather than the dec larant, were admissible. And in any event, the entire statements were admissible. This is beca use the portions of the statements inculpating Aquire were made in the context of a narrative of e vents, at the declarant’s initiative, without prompting or inquiry. See Taylor , 482 Mich at 378-379.

39 MRE 804(b)(3).

40 MRE 804(b)(3).

41 People v Barrera , 451 Mich 261, 266-267; 547 NW2d 280 (1996).-9- trustworthy, the Court held that the proper inquiry was to cons ider the factors stated in Poole

. 42 Taylor addressed the admissibility of inculpatory statements, 43 and thus, should not be read as abrogating the relevance of the Poole factors when addressing exculpatory statements. But here, the statements were purel y inculpatory. Thus, the Poole factors are of no relevance to this case.

C. SEVERANCE OF TRIALS

Aquire next contends that the tr ial court erred by failing to sever his trial from those of his codefendants. Because Aquire did not seek severance in the trial court, we review the issue for plain error. 44

“There is no absolute right to separate trials, and in fact, a strong policy favors joint trials in the interest of justice, judi cial economy, and administratio n.” 45 Whether to hold separate trials is a matter within the trial court’s discretion. 46 “Severance is mandated under MCR 6.121(C) only when a defendant provides the [trial] court with a support ing affidavit, or makes an offer of proof, that clearly, affirmatively, and fully demonstrates that his substantial rights will be prejudiced and that severance is the necessary means of rectify ing the potential prejudice.” 47 “The failure to make this showing in the trial court, absent an y significant indication on appeal that the requisite prejudice in fact occurred at trial, will pr eclude reversal of a joinder decision.” 48

Aquire made no attempt in the trial court to demonstrate that a joint trial would cause any prejudice; indeed, he never sought a separate trial. He now ar gues that the failure to hold separate trials prejudiced him in two ways. First, he asserts that, had the trial court held separate trials, evidence of the conduct of his codefendants would not h ave been admitted against him. Aquire offers no explanation of why witnesses would not have be en able to testify to the entire sequence of events that occurred, including the acts undertaken by Fredrick and Reco, at a trial held with respect only to Aquire. Aquire also argues that the statements discussed in the previous issue would not have been admitted at a separate trial . But he similarly offers no reason why these statements could not be admitted against him alone. Aquire cannot simply state a position and leave it to this Court to rationalize the basis fo r his contention of error. 49 As Aquire

42 Id . at 272-276. The Court also explained that additional factors were relevant in instances where “the statement was made to the authorities while the decl arant was in custody . . . .” Id . at 275-276.

43 Taylor , 482 Mich at 370.

44 People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).

45 People v Bosca , 310 Mich App 1, 44; 871 NW2d 307 (2015) (quotation marks, bra ckets, and citation omitted).

46 People v Hana , 447 Mich 325, 331; 524 NW2d 682 (1994).

47 Id . at 346.

48 Id . at 346-347.

49 People v Waclawski , 286 Mich App 634, 679; 780 NW2d 321 (2009).-10- has not demonstrated that any actual prejudice occurred as the result of the trial court’s decision to hold a joint trial, this Court may not reverse. 50

Aquire also argues that counsel was ineffective for failing to seek severance. Because he has failed to demonstrate the ex istence of error or any prejudi ce resulting from the failure to seek separate trials, Aquire’s claim of ineffective assistance fails

. 51

D. SENTENCING ERROR

In his final argument, Aquire contends that the trial court ma de an independent finding that he was guilty of murder at sentencing, despite the fact th at the jury acquitted him of murder. We disagree. Because this error was not raised below, our revi ew is for plain error. 52

Aquire’s argument ar ises from the followi ng statements of the trial court at sentencing:

And I am going to stack these. Because if one of those boys h ad said, no, I’m not going along with this the rest of them might not have, and none of this might have happened. But he’s just as responsible for that man ’s death as everybody else. Although the jury didn’t convict him of the Se cond Degree Murder. As I said, how am I going to – a Robbery Armed and a H ome Invasion First Degree, and you don’t find – even though the man died dur ing it – you don’t find Second Degree Murder. They wanted to give him a break.

And so he will serve the Home Invasion and the Robbery Armed consecutive to each other.

“Although a trial court may not make an independent finding of guilt with respect to a crime for which a defendant has been acquitted, and then senten ce the defendant on the basis of that finding, the court in fashi oning an appropriate sentence m ay consider the evidence offered at trial, including other criminal activities established even tho ugh the defendant was acquitted of the charges, and the effect of the crime on the victim.” 53 Read in context, the trial court did not make a finding that Aquire was guilty of murder. Indeed, the t rial court repeatedly acknowledged that the jury had not reached that conclusion. It did, however, consider the fact

50 Hana , 447 Mich at 346-347.

51 See Trakhtenberg , 493 Mich at 51 (to be entitle d to relief on a claim of ineffe ctive assistance of counsel, a defendant must demonstrate a reasonable likelihoo d of a different result absent the error); People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010) (“Failing to advan ce a meritless argument or raise a futile objection does not constit ute ineffective assistance of counsel.”).

52 People v Meshell , 265 Mich App 616, 638; 696 NW2d 754 (2005).

53 People v Compagnari , 233 Mich App 233, 236; 590 NW2d 302 (1999) (citations omitted ).-11- that while Aquire had not been convicted of murder, the crimes of which he was convicted nonetheless led to John’s death. In doing so, the trial court did no more than consider the criminal activities established at trial and the effect of thos e activities on the victims, as it was permitted to do. 54 Aquire’s argument is without merit.

IV. DOCKET NO. 323229

In Docket No. 323229, Fredrick raises a single argument: that the prosecutor failed to present sufficient evidence to support his conviction of home i nvasion. We disagree. “In determining whether sufficient evidence exists to sustain a con viction, this Court reviews the evidence in a light favorable to the prosecution.” 55 We will affirm Fredrick’s conviction if the evidence would allow a rational juror to find him guilty beyond a reasonable doubt. 56

Fredrick challenges his convict ion of first-degree home invasi on. First-degree home invasion is defined by MCL 750.110 a(2), which provides:

A person who breaks and enters a dwelling with intent to commit a felony, larceny, or assault in the dwellin g, a person who enters a dwel ling 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 wi thout permission and, at any time while he or she is entering, present in, or ex iting the dwelling, commits a felony, larceny, or assault is guilty of home invasio n in the first degree if at any time while the person is entering, present in, or exi ting the dwelling either of the following circumstances exists:

(a) The person is armed w ith a dangerous weapon.

(b) Another person is lawfu lly present in the dwelling.

There was ample evidence that Fredrick participated in the rob bery. Terrance testified that several men entered the home, although he could not specif ically identify Fredrick as one of these men. However, Fredrick was identified as one of several individuals who traveled to Melissa’s home intending to comm it a robbery. Montgomery testi fied that Fredrick’s role was to be one of the men who entered the home. Fredrick was identifie d as having exited Evans’s Explorer and heading toward the home with the other participant s. And after the robbery, he was one of the men picked up by Evans and driven away from the loca tion. There was also evidence demonstrating that he was in possession of at least some of the items stolen from Melissa’s home. Regardless of whether Te rrance or any other witness spec ifically testified to seeing him inside the home, there was more than adequate circumstantial ev idence that would allow a rational juror to conclude that he was one of the men who enter ed Melissa’s home. Because

54 Id

.
55 People v Sherman-Huffman , 466 Mich 39, 40; 642 NW2d 339 (2002).

56 Id

.-12- circumstantial evidence can provide satisfactory proof of the e lements of a crime, 57 Fredrick’s argument lacks merit.

Affirmed.

/s/ Michael J. Talbot /s/ Kurtis T. Wilder /s/ Jane M. Beckering

57 Bosca , 310 Mich App at 16.