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UNPUBLISHED

July 23, 2019

v No. 338110

Wayne Circuit Court

ERIC JERMAINE WATSON, JR., LC No. 16-006746-02-FC

Defendant-Appellant.

Before: TUKEL, P.J., and JANSEN and RIORDAN, JJ.

PER CURIAM.

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

felon in possession of a firearm (felon-in-possession), MCL 750.224f, and possession of a 

firearm during the commission of a felony (felony-firearm), MCL 750.227b. He was sentenced 

as a fourth-offense habitual offender, MCL 769.12, to concurrent terms of 15 to 30 years’ 

imprisonment for armed robbery, and one to five years’ imprisonment for felon-in-possession, 

consecutive to two years’ imprisonment for felony-firearm. Defendant also appeals the trial 

court’s order denying his motion for a new trial on the basis of newly-discovered evidence after 

we remanded for the trial court to hear that motion.1 We affirm.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

During the early morning hours of July 1, 2016, the victim in this matter was playing dice 

on a street corner with DaJuan Jones. The two ended up in a disagreement, and the victim fled in 

fear. The victim fell while running, Jones approached, and held the victim at gunpoint. At that 

moment, defendant and Richard James Melton, Jr., approached. Jones asked defendant if he 

should “kill” the victim, to which defendant responded not to shoot. Defendant and Melton then 

went through the victim’s pockets while he was still held at gunpoint. The victim reported that 

 1 People v Watson, unpublished order of the Court of Appeals, entered September 14, 2018 

(Docket No. 338110).
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the three men took an LG K7 cellular telephone, $800 in cash, and some cigarettes from him, 

entered a white Dodge Durango, and defendant drove them away. The victim called 911, 

reported that he was robbed, and described the aforementioned vehicle. The police identified the 

white Durango near the scene of the robbery, pulled it over, and discovered defendant driving 

with Melton in the passenger seat. Jones was not in the car. There were six cellular telephones 

in the vehicle—one of which was an LG K7 model—and a handgun holster, but no gun. 

Defendant was found with $1,228 in his pockets.

Later that same day, the victim identified Jones in a photographic lineup. The following 

day, he identified defendant and Melton in a live lineup. The victim testified at the preliminary 

examination on August 2, 2016, where defendant and Melton were bound over on the 

aforementioned charges. Following the preliminary examination, the victim became 

noncompliant with the prosecution and police.2 On October 3, 2016, defendant and Melton were 

set to be tried together, and the prosecution moved to have the victim’s preliminary examination

testimony admitted as evidence, citing the victim’s unavailability. The prosecution also alleged 

that defendant and Melton had procured the victim’s absence from trial by bribing him. The 

prosecution introduced jailhouse telephone calls of Melton, in which he openly discussed paying 

the victim money so that he would not come to trial. The trial court held that certain evidence 

was admissible as against Melton under the forfeiture-by-wrongdoing rule, MRE 804(b)(6). The 

trial court refused to attribute Melton’s wrongdoing to defendant, disagreeing with the 

prosecution’s theory that Melton was acting on behalf of defendant. The trial court, therefore, 

ordered that defendant and Melton be tried separately, and adjourned defendant’s trial until 

December 15, 2016. 3

Before defendant’s rescheduled trial date, the prosecution once again moved the trial 

court to find that the forfeiture-by-wrongdoing rule applied to defendant. The trial court again 

refused, but did find that the victim was unavailable for trial, and that his preliminary 

examination testimony was admissible. The trial court also admitted the victim’s 911 call 

recording and his identification of defendant. After two days of trial, the jury convicted 

defendant of all three charges. At sentencing, the victim came forward, and asserted that he 

wished to recant his testimony from the preliminary examination. According to defendant, the 

victim intended to testify that there was no gun present during the robbery. The trial court 

appointed counsel for the victim so that he would understand the potential for perjury charges,

and adjourned defendant’s sentencing. During the second sentencing hearing, the victim and his 

counsel informed the trial court that the victim no longer wished to recant, and if called to testify, 

he would exercise his Fifth Amendment right against self-incrimination. Defendant was 

sentenced, and this appeal followed.

 2 The charges against Jones, who held the victim at gunpoint, were dismissed during his later

preliminary examination when the victim did not appear to testify.

3 Melton later pleaded guilty to armed robbery, felon-in-possession, and felony-firearm. He has 

not appealed his pleas, and is not a party to this appeal.
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Pertinent to this appeal, defendant moved this Court to remand his case to the trial court 

to hear his motion for a new trial on the basis of newly-discovered evidence. The newlydiscovered evidence was the victim’s medical records, which revealed a history of mental health 

issues, and an affidavit from the victim recanting his previous testimony that a gun was present 

at the robbery. The trial court found that the newly-discovered evidence was not credible, and 

would not have changed the outcome of trial. Thus, the court denied defendant’s motion. The 

case is now before us for summary consideration.

II. UNAVAILABLE WITNESS & THE CONFRONTATION CLAUSE

Defendant argues that the trial court erred when it determined that the prosecution had 

been reasonably diligent in finding the victim before the trial court declared the victim

unavailable at trial, violating the rules of evidence and defendant’s constitutional right of 

confrontation. We disagree.

A. PRESERVATION

“To preserve an evidentiary issue for review, a party opposing the admission of evidence 

must object at trial and specify the same ground for objection that it asserts on appeal.” People v 

Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). Additionally, “an objection based on 

one ground at trial is insufficient to preserve an appellate attack based on a different ground.” 

People v Bulmer, 256 Mich App 33, 34-35; 662 NW2d 117 (2003). As properly argued by the 

prosecution on appeal, defendant objected to the evidence being admitted at trial; however, he 

did not do so on the grounds now presented—that the prosecution was not duly diligent in 

finding the victim. Instead, defendant objected on the ground that the victim failed to appear at

trial because he lied during the preliminary examination. As discussed in Aldrich, 246 Mich App 

at 113, and Bulmer, 256 Mich App at 34-35, defendant’s objection on that ground is not 

sufficient to preserve his argument on appeal that the prosecution did not exercise due diligence 

in trying to find the victim. Thus, this issue is not preserved for our review. Bulmer, 256 Mich 

App at 34-35; Aldrich, 246 Mich App at 113. As for defendant’s argument on appeal that his 

constitutional right to confrontation was violated by the victim’s absence, defendant made that 

objection, so that issue is preserved for our review. People v Grant, 445 Mich 535, 551; 520 

NW2d 123 (1994).

B. STANDARD OF REVIEW

“When the issue is preserved, we review a trial court’s decision to admit evidence for an 

abuse of discretion, but review de novo preliminary questions of law, such as whether a rule of 

evidence precludes admissibility.” People v Chelmicki, 305 Mich App 58, 62; 850 NW2d 612 

(2014). “An abuse of discretion occurs when the trial court chooses an outcome falling outside 

the range of principled outcomes.” People v Buie, 491 Mich 294, 320; 817 NW2d 33 (2012). “

‘[W]hen such preliminary questions of law are at issue, it must be borne in mind that it is an 

abuse of discretion to admit evidence that is inadmissible as a matter of law.’ ” People v Henry, 

315 Mich App 130, 143; 889 NW2d 1 (2016), quoting People v Lukity, 460 Mich 484, 488; 596 

NW2d 607 (1999) (citations omitted).
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However, because this issue has not been preserved for review, we must review the 

“unpreserved claim for plain error affecting defendant’s substantial rights.” People v Roscoe, 

303 Mich App 633, 648; 846 NW2d 402 (2014). “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.” People v Carines, 460 Mich 750, 

763; 597 NW2d 130 (1999). In order to show that a defendant’s substantial rights were affected, 

there must be “a showing of prejudice, i.e., that the error affected the outcome of the lower court 

proceedings.” Id. As such, “[r]eversal is only warranted if defendant was actually innocent and 

the plain error caused defendant to be convicted or ‘if the error “seriously affected the fairness, 

integrity, or public reputation of judicial proceedings,” ’ regardless of defendant’s innocence.” 

Roscoe, 303 Mich App at 648, quoting People v Thomas, 260 Mich App 450, 454; 678 NW2d 

631 (2004), quoting People v Ackerman, 257 Mich App 434, 449; 669 NW2d 818 (2003).

With respect to the preserved error, “[w]hether a defendant’s Sixth Amendment right of 

confrontation has been violated is a question of constitutional law that this Court reviews de 

novo.” People v Bruner, 501 Mich 220, 226; 912 NW2d 514 (2018).

C. APPLICABLE LAW & ANALYSIS

The trial court did not plainly err or violate defendant’s constitutional right to 

confrontation in determining that the victim was an unavailable witness, and admitting the 

victim’s preliminary examination testimony.

“A defendant has the right to be confronted with the witnesses against him or her.” 

People v Yost, 278 Mich App 341, 369-370; 749 NW2d 753 (2008) citing US Const, Am VI; 

Const 1963, art 1, § 20; Crawford v Washington, 541 US 36, 42; 124 S Ct 1354; 158 L Ed 2d 

177 (2004). “The purpose of the Confrontation Clause is to provide for a face-to-face 

confrontation between a defendant and his accusers at trial.” People v Bean, 457 Mich 677, 682; 

580 NW2d 390 (1998) (quotation marks and brackets omitted). “This confrontation is an 

important right of the defendant because it enables the trier of fact to judge the witnesses’ 

demeanors.” People v Dye, 431 Mich 58, 64; 427 NW2d 501 (1988) (opinion by LEVIN, J.). 

“Where testimonial evidence is at issue . . . the Sixth Amendment demands what the common 

law required: unavailability and a prior opportunity for cross-examination.” Crawford, 541 US 

at 68. Included within the definition of “testimonial evidence” is a witness’s “prior testimony at 

a preliminary hearing . . . .” Id. 

“Former testimony is admissible at trial under both MRE 804(b)(1) and the Confrontation 

Clause as long as the witness is unavailable for trial and was subject to cross-examination during 

the prior testimony.” People v Garland, 286 Mich App 1, 7; 777 NW2d 732 (2009). “A witness 

is considered unavailable if he or she is ‘absent from the hearing and the proponent of a 

statement has been unable to procure the declarant’s attendance . . . by process or other 

reasonable means, and in a criminal case, due diligence is shown.’ ” Yost, 278 Mich App at 370, 

quoting MRE 804(a)(5). “The test for whether a witness is ‘unavailable’ as envisioned by MRE 

804(a)(5) is that the prosecution must have made a diligent good-faith effort in its attempt to 

locate a witness for trial.” Bean, 457 Mich at 684. “The test is one of reasonableness and 

depends on the facts and circumstances of each case, i.e., whether diligent good-faith efforts 
-5-

were made to procure the testimony, not whether more stringent efforts would have produced it.” 

Id.

Defendant argues on appeal that the trial court erred in determining that the prosecution 

exercised due diligence and a good-faith effort in its attempts to ensure that the victim was at 

trial. The issue of the victim’s unavailability first arose when defendant and Melton were set to 

be tried together on October 3, 2016. At that hearing, the prosecution provided the following 

statement regarding the efforts to locate the victim:

I had filed recently a motion to introduce the statement of [the victim]. 

[He] is the only victim, and only civilian witness in this case. He was the victim 

of an alleged armed robbery that took place on July 1st of this year.

My Officer in Charge, Sergeant Dasumo Mitchell, is currently the Officer 

in Charge in a homicide case this morning [in another] courtroom, otherwise he 

would be here today. He had made efforts to locate [the victim] throughout this 

process. [The victim] did provide testimony at the Preliminary Examination, 

however recent efforts to location [sic] [him] have failed.

On Friday, this past Friday, on the 30th of September, the People had this 

court issue a witness detainer for [the victim] to locate him over the weekend. 

Efforts by the Officer in Charge, Sergeant Dasumo Mitchell, who I believe 

Detective Dawson who just walked in the courtroom today, was also present 

during the attempted apprehension of [the victim]. They went to his known 

address and he was not there.

In addition, Judge, the People have had contact with the grandfather [] of 

[the victim]. I spoke to [the victim’s grandfather] on September 29th. He 

indicated to me that his grandson was not going to come to court, that he had had 

a conversation with him the previous day in which [the victim] had indicated that 

he was paid some money to not appear in court.

In addition to all of that, Your Honor, the People have listened to 

numerous jail calls from both Defendants, Eric Watson and Richard Melton. 

Over the course of time spanning from July of this year, shortly after the incident, 

all the way to, I believe it was the end of September of this year, there were 

approximately eleven phone calls that demonstrates an active participation to 

secure the absence of [the victim] in this trial.

I have laid out in explicit detail all of the phone calls and the dates of those 

or those times in which Mr. Melton placed all of those calls, but references not 

only [Jones] but somebody by the name of Chedda, C-h-e-d-d-a, which through 

jail calls have been interpreted to be the person identified as [defendant] Eric 

Watson.
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Also, Judge, the way that these jail calls have played out is a systematic 

and active scheme to try to secure the absence of [the victim]. And today, as of 

9:15 or 9:16, [the victim] is nowhere to be found.

I believe Sergeant Dotson can attest to that, and his efforts as well. We 

have clear information, Judge, that [the victim] was, in fact, paid, that there’s an 

active participation to try to pay by this—by Mr. Melton, as well as through 

incorporation, Mr. Watson . . . . 

Following those statements by the prosecution, Officer Danny Dotson was called to testify 

regarding the efforts of the police to locate the victim. He stated that he and Officer Mitchell 

went to the victim’s house and searched local hotels and motels, where they suspected the victim 

might be staying. The prosecution further argued that the witness was unavailable because of the 

jailhouse telephone calls made by Melton. Those telephone calls, which were transcribed in 

various briefs and the content of which is not challenged, clearly show that Melton was in 

contact with several people who conspired to pay the victim money so that he would not come to 

trial.

On the first day of defendant’s trial, the prosecution once again moved the trial court to 

admit the victim’s preliminary examination testimony based on his unavailability, and attempted 

to connect defendant to Melton’s procurement of the victim’s unavailability by reading 

defendant’s jailhouse telephone calls into the record, the content of which has not been 

challenged. In those calls, defendant and an unknown caller have vague conversations about 

ensuring that a “situation” is “straight.” Defendant argued, and the trial court agreed, that those 

conversations by defendant were not specific enough to connect him to Melton’s behaviors. 

Therefore, the trial court held that the victim’s absence was not attributable to defendant, so the 

forfeiture-by-wrongdoing rule, MRE 804(b)(6), was inapplicable.

The trial court did, however, determine that the victim was unavailable under MRE 

804(a)(5), and requested that the prosecution update the record regarding the continuing location 

efforts. The prosecution informed the trial court that Officer Mitchell had continued to search 

for the victim, without luck, since the previous date of trial, two months earlier. Following the

determination by the trial court that the victim was unavailable, defendant objected on the 

ground that the victim was not at trial because he was a liar, not because he was paid off by 

Melton. Defendant did not, in any manner, challenge the prosecution’s recitation of the efforts 

made to locate the victim.

With regard to a witness’s unavailability, “[t]he test is one of reasonableness and depends 

on the facts and circumstances of each case, i.e., whether diligent good-faith efforts were made 

to procure the testimony, not whether more stringent efforts would have produced it.” Bean, 457 

Mich at 684. The trial court was presented with evidence that, initially, the prosecution did not 

expect that the victim would become unavailable. Indeed, he was compliant after the robbery 

when he came to the police station to perform identifications on two different occasions, and 

attended the preliminary examination to testify. 

As the October 3, 2016 trial date approached, however, the prosecution grew concerned 

about the victim’s reliability. On September 29, 2016, the prosecution attempted to reach the 
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victim. Instead, the prosecution spoke to the victim’s grandfather, who informed the prosecution 

that the victim would not appear at trial because he had been paid not to attend. The prosecution 

then obtained a witness detainer order from the trial court on September 30, 2016. The police 

attempted to detain the victim that day, but were unable to find him. The prosecution informed 

the trial court that Officer Mitchell made several attempts to reach the victim at his known 

address. Officer Dotson testified that he and Officer Mitchell went to the victim’s house, but 

could not find him. The prosecution also reviewed Melton’s jailhouse telephone calls, and 

discovered Melton’s scheme to pay off the victim. The prosecution noted that Melton likely 

arranged for the victim to stay in a motel or hotel to avoid being found by police or the 

prosecution. Officer Dotson testified that he and Officer Mitchell, presumably being aware of 

the information obtained in the jailhouse telephone calls, also searched area hotels and motels. 

On the date that defendant’s trial was set to begin, December 15, 2016, the prosecution informed 

the trial court that, while it was confident that Melton and defendant had procured the victim’s 

absence, Officer Mitchell continued his efforts to locate the victim at his last known address. As 

previously noted, defendant did not object on the ground that these efforts were unreasonable or 

not duly diligent.

Considering all of these facts, the trial court did not err in finding that the victim was 

unavailable as a witness in light of the prosecution’s duly diligent efforts to locate him. MRE 

804(a)(5). The prosecution did not just attempt to call the victim, or go to his home. Instead, the 

prosecution took the extra steps of listening to the jailhouse telephone calls, and speaking to the 

victim’s grandfather. On the basis of the information provided in the telephone calls and from 

the victim’s grandfather, the prosecution became aware that the victim may have been lodged in 

a hotel to avoid trial. Officers Dotson and Mitchell then used that newly acquired information to 

search hotels in the area of the victim’s home. Finally, even after the prosecution and police 

were aware that the victim likely would not be found because he was being paid not to be, they 

still continued to attempt to contact the victim, and went to his known address.

The attempts made by the prosecution and the police, under the circumstances of this 

case, were reasonable and duly diligent. Bean, 457 Mich at 684. Two factors are of primary 

importance in this case. First, before the victim went missing, the prosecution had no reason to 

believe that he would be unavailable for trial. This factor distinguishes the present case from 

Dye, 431 Mich at 61-62, because in that case, the prosecution was aware that certain witnesses 

wished to avoid testifying.

Specifically, the Court in Dye noted that the defendant in that case previously had been 

tried, which resulted in a mistrial. Id. The witnesses in question “were in protective custody 

immediately preceding and until they completed their testimony at the first trial, and were then 

released.” Id. at 61. They were held in protective custody because the defendant was a member 

of a motorcycle gang, and the prosecution wished “to prevent other ‘bikers’ from harming them.” 

Id. at 63. When a second trial was required after a mistrial, the prosecution made only “tardy 

and incomplete” attempts to find the witnesses. Id. at 62. In making that finding, the Court 

relied on the fact that the witnesses “had been difficult to locate for the first trial,” the officer in 

charge “knew that each [witness] was going out of state” after being released, the witnesses “had 

an incentive to go into hiding,” and the threat to the witnesses’ safety “remained after their 

release.” Id. at 67. Despite that knowledge, and while aware that a second trial was necessary, 

the prosecution made no efforts to remain in contact with the witnesses for two months after the 
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mistrial. Id. at 67-68. It was this negligent behavior by the prosecution upon which our Supreme 

Court primarily relied when determining that any efforts by the prosecution to locate the 

witnesses after those two months were “tardy and incomplete.” Id. at 68.

This distinction is important because the efforts of the prosecution in a case where it is 

aware that a witness has a reason to avoid testifying necessarily must be more thoroughly 

scrutinized. As our Supreme Court has made clear, what is reasonable in some circumstances 

might not be reasonable in others. See Bean, 457 Mich at 684. (“The test is one of 

reasonableness and depends on the facts and circumstances of each case . . . .”). Had the trial 

court been presented with the same factual circumstances as the case in Dye, 431 Mich at 67-68, 

the efforts by the prosecution in this case would have been highly suspect. Even so, the Court 

might still have reached a different conclusion because there was no evidence that the 

prosecution’s efforts in this case were “tardy.” Because the prosecution and the police were not 

aware of the victim’s intent to avoid testifying until he disappeared, the due diligence expected 

of the prosecution in Dye simply is not applicable to the facts of this case. See Bean, 457 Mich 

at 684.

The second important distinguishing factor in this case is that the prosecution was aware 

that the victim was being paid to avoid testifying. While the prosecution and the police 

attempted to use that knowledge to search local motels and hotels, which was a reasonably 

diligent step to take, it also limited other investigatory techniques that otherwise might be 

required. For instance, it would be illogical to stakeout the victim’s home when it was highly 

unlikely that he would return, on the basis of the fact that he likely was at a hotel. Further,

continuing to try and call the victim would be ineffective because he had good reason not to 

answer his telephone for the police. It also would be unreasonable to expect the prosecution to 

track a credit or debit card of the victim, assuming he had one, or that information was available, 

because the victim was being paid cash to stay in hiding, as reflected in Melton’s telephone calls. 

When the prosecution is aware that a witness is purposely attempting to avoid being found and is 

being paid to do so, the same rigorous standards provided in Dye and Bean are not applicable.

Defendant also contends on appeal that the trial court erred by relying on the 

prosecution’s explanation of the efforts made to locate the victim, rather than calling the police 

officers as witnesses. However, when considering whether a witness is unavailable, this Court 

has permitted a trial court to rely on statements by the prosecution where “[t]he trial court had no 

reason to disbelieve the prosecution’s representation . . . and defense counsel could have clarified 

any possible ambiguity . . . by requesting clarification.” Garland, 286 Mich App at 8, citing 

People v Dunbar, 463 Mich 606, 617 n 13; 625 NW2d 1 (2001) (holding that because attorneys 

are subject to numerous “provisions intended to ensure candor . . . in the absence of evidence to 

the contrary, we will accept a licensed attorney’s assertion to a court.”). Initially, contrary to 

defendant’s argument, the prosecution, in addition to its own statements, also provided the 

testimony of Officer Dotson. Plus, it was not error for the trial court to rely on the prosecution’s 

statements because the same standard discussed in Garland, 286 Mich App at 8, is applicable 

here. Had defense counsel objected or requested clarification on the record, Officer Mitchell 

would have come to the stand and testified in more detail about the efforts made to find the 
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victim.

4

 However, defendant did not do so, and the trial court was not provided any reason to 

disbelieve the prosecution, so the trial court’s reliance on the prosecution’s recitation of facts 

was not in error. Id.

In sum, on the basis of the specific facts of this case, the trial court did not err in 

determining that the prosecution made “diligent good-faith efforts . . . to procure the testimony” 

of the victim. Bean, 457 Mich at 684. Thus, the trial court did not abuse its discretion in holding 

that the victim was unavailable under MRE 804(a)(5), and his preliminary examination 

testimony was admissible under MRE 804(b)(1).

Alternatively, defendant argues that the victim’s absence from trial violated his 

constitutional right to confrontation. However, as this Court has held, “[f]ormer testimony is 

admissible at trial under . . . the Confrontation Clause as long as the witness is unavailable for 

trial and was subject to cross-examination during the prior testimony.” Garland, 286 Mich App 

at 7. Such is the case here because, as just discussed in great detail, the victim was unavailable 

to testify, and as is obvious from the record, the victim was subjected to cross-examination 

during his former testimony. See Garland, 286 Mich App at 7. Thus, this argument by 

defendant is without merit. Id.

III. SUFFICIENCY OF THE EVIDENCE

Defendant argues that there was insufficient evidence to convict him of felon-inpossession. In defendant’s Standard 4 brief, he also argues that there was insufficient evidence 

to sustain his conviction of armed robbery. We disagree on both accounts.

A. STANDARD OF REVIEW & GENERAL LAW

“ ‘We review de novo a challenge on appeal to the sufficiency of the evidence.’ ” Henry, 

315 Mich App at 135, quoting People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 

(2010). “To determine whether the prosecutor has presented sufficient evidence to sustain a 

conviction, we review the evidence in the light most favorable to the prosecutor and determine 

‘whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” 

People v Smith-Anthony, 494 Mich 669, 676; 837 NW2d 415 (2013), quoting People v Tennyson, 

487 Mich 730, 735; 790 NW2d 354 (2010) (citation and quotation omitted). “ ‘The standard of 

review is deferential: a reviewing court is required to draw all reasonable inferences and make 

credibility choices in support of the jury verdict.’ ” People v Bailey, 310 Mich App 703, 713; 

873 NW2d 855 (2015), quoting People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). To 

 4 In fact, when Officer Mitchell was called to testify the following day, he discussed some of his 

location efforts. In addition to all of the evidence already recounted by the prosecution and 

Officer Dotson, Officer Mitchell provided that he “sat outside [the victim’s] house a few hours 

waiting to see if he was going to leave out of the door, come in.” During that wait, he had “the 

police called on” him. Officer Mitchell explained that the victim’s “mother was upset about us 

being there so she called the police on the police.”
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the extent that this appeal requires statutory interpretation, this Court reviews that issue de novo. 

People v Ambrose, 317 Mich App 556, 560; 895 NW2d 198 (2016).

There is sufficient evidence for a guilty verdict where “ ‘a rational trier of fact could find 

the defendant guilty beyond a reasonable doubt.’ ” Tennyson, 487 Mich at 735 (citation 

omitted). “The prosecution need not negate every reasonable theory of innocence, but need only 

prove the elements of the crime in the face of whatever contradictory evidence is provided by the 

defendant.” People v Henderson, 306 Mich App 1, 9; 854 NW2d 234 (2014). “Circumstantial 

evidence and the reasonable inferences that arise from that evidence can constitute satisfactory 

proof of the elements of the crime.” People v Blevins, 314 Mich App 339, 357; 886 NW2d 456 

(2016). Any and all conflicts that arise in the evidence must be resolved “in favor of the 

prosecution.” Henderson, 306 Mich App at 9. “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 be accorded those inferences.” People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 

(2002).

B. FELON-IN-POSSESSION

There was sufficient evidence to sustain defendant’s conviction of felon-in-possession. 

“Felon-in-possession is a statutory offense that is set forth by MCL 750.224f,” and has 

“two essential elements . . . .” People v Bass, 317 Mich App 241, 267; 893 NW2d 140 (2016). 

Those elements are: “(1) the defendant is a felon who possessed a firearm (2) before his right to 

do so was formally restored under MCL 28.424.” Id. at 268, citing MCL 750.224f.

Defendant makes an interesting, though meritless, argument on appeal. Defendant 

contends that the prosecution’s sole ground to convict defendant of felon-in-possession was 

under an aiding and abetting theory. Defendant focuses on the fact that the prosecution 

acknowledged during closing argument that defendant never physically possessed the gun. Thus, 

defendant reasons, the prosecution must have been attempting to prove that defendant aided or 

abetted Jones in his commission of the crime of felon-in-possession. Defendant is correct that to 

prevail on such grounds, “the crime itself must be proved, and the defendant must have rendered 

some kind of assistance or encouragement to the commission of that crime with the intent that 

the crime occur or the knowledge that the principal intended for the crime to occur.” Blevins, 

314 Mich App at 358. Because the prosecution did not present any evidence that Jones was a 

“felon” under MCL 750.224f, defendant argues that the “crime itself” was never proven. See 

Blevins, 314 Mich App at 358. Defendant is incorrect that actual possession or aiding and 

abetting were the prosecution’s only avenues to prove defendant’s guilt of felon-in-possession.

Our Supreme Court “has held that for possessory crimes in Michigan, actual possession is 

not required; constructive possession is sufficient.” People v Minch, 493 Mich 87, 91; 825 

NW2d 560 (2012). “[A] person has constructive possession if there is proximity to the article 

together with indicia of control.” People v Johnson, 293 Mich App 79, 83; 808 NW2d 815 

(2011) (quotation marks omitted; alteration in original). “The test for constructive possession is 

whether ‘the totality of the circumstances indicates a sufficient nexus between defendant and the 

contraband.’ ” Minch, 493 Mich at 91-92, quoting People v Johnson, 466 Mich 491, 500; 647 

NW2d 480 (2002). “Although not in actual possession, a person has constructive possession if 
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he knowingly has the power and the intention at a given time to exercise dominion or control 

over a thing, either directly or through another person or persons . . . .” Minch, 493 Mich at 92 

(quotation marks omitted; alteration in original).

In addition to constructive possession, Michigan courts also have recognized joint 

possession. People v Strickland, 293 Mich App 393, 400; 810 NW2d 660 (2011) (“Possession of 

a firearm may be sole or joint . . . .”). The caselaw allows for a conviction of felon-in-possession 

under “the theory of joint firearm possession if the evidence suggests two or more defendants 

acting in concert.” People v Hill, 433 Mich 464, 471; 446 NW2d 140 (1989). In any case, 

“[p]ossession can be proved by circumstantial or direct evidence and is a factual question for the 

trier of fact.” Johnson, 293 Mich App at 83.

As noted, to convict defendant of felon-in-possession there needed to be sufficient 

evidence that defendant was a felon and possessed a firearm. See Bass, 317 Mich App at 268. 

Defendant stipulated to the fact that he had a prior felony, and therefore, under MCL 750.224f, 

he was not permitted to possess a firearm. Thus, the only question for the jury to consider was 

whether defendant possessed the firearm. See id. The prosecution presented evidence that Jones

chased down the victim and held him at gunpoint while defendant and Melton went through the 

victim’s pockets, eventually taking cigarettes, a cellular telephone, and $800 in cash. The victim 

testified that Jones asked defendant if he should “kill” the victim, to which defendant answered 

not to shoot. Later, when defendant was pulled over by police in the white Durango—in which 

the victim saw defendant drive away from the scene of the robbery—there was a handgun holster 

in the vehicle.

On the basis of those facts, a reasonable jury was well-supported in inferring that 

defendant and Jones were “acting in concert,” and thus, jointly possessed the firearm that Jones

held. See Hill, 433 Mich at 471. It was the jury’s role “to determine what inferences may be 

fairly drawn from the evidence and to determine the weight to be accorded those inferences.” 

Hardiman, 466 Mich at 428. Here, the jury inferred from the foregoing evidence that defendant 

and Jones were working together—Jones held the gun while defendant relieved the victim of his 

property and cash. Consequently, there was sufficient evidence for the jury to find that 

defendant jointly possessed the firearm with Jones, and thus, was guilty of committing felon-inpossession. See id; see also Hill, 433 Mich at 471. The prosecution’s failure to present evidence 

that Jones committed felon-in-possession was irrelevant because, for the purposes of that crime,

defendant did not aid and abet Jones, but rather, acted in concert with him, and was also the 

principal under the concept of joint possession. See Hardiman, 466 Mich at 428.

C. ARMED ROBBERY

There was sufficient evidence to sustain defendant’s conviction of armed robbery.

We recently restated “[t]he elements necessary to prove armed robbery under MCL

750.529” in People v Muhammad, 326 Mich App 40, 61; ___ NW2d ___ (2018) (quotation 

marks omitted):

(1) [T]he defendant, in the course of committing a larceny of any money or other 

property that may be the subject of a larceny, used force or violence against any 
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person who was present or assaulted or put the person in fear, and (2) the 

defendant, in the course of committing the larceny, either possessed a dangerous 

weapon, possessed an article used or fashioned in a manner to lead any person 

present to reasonably believe that the article was a dangerous weapon, or 

represented orally or otherwise that he or she was in possession of a dangerous 

weapon.

Pertinently, the armed robbery statute requires the commission or attempted commission of “a 

larceny of any money or other property . . . .” Id. Our Supreme Court has held that Michigan 

has “ ‘no statutory definition of larceny, and all our statutes use it in its common law sense.’ ” 

People v March, 499 Mich 389, 399; 886 NW2d 396 (2016), quoting Morrissey v People, 11 

Mich 327, 336 (1863). The Court in March then held that, for larceny, “the common law can be 

parsed in turn into the following elements: (a) a trespassory taking and (b) the carrying away (c) 

of the personal property (d) of another (e) with intent to steal that property.” March, 499 Mich at 

401.

Defendant’s argument on appeal focuses solely on the larceny aspect of the armed 

robbery statute. Specifically, defendant asserts that the prosecution failed to introduce sufficient 

evidence to prove that defendant took and carried away the personal property of the victim. His 

argument focuses on the alleged lack of evidence that the cellular telephone and $800 taken from 

the victim was determinatively proven to be one of the six cellular telephones and some of the 

$1,228 found in defendant’s car and in his pockets, respectively. Defendant’s argument is 

without merit. The prosecution introduced the victim’s testimony from the preliminary 

examination, in which he stated that defendant went through his pockets while he was held at 

gun point. In the process of going through his pockets, defendant and Melton removed 

cigarettes, a cellular telephone, and $800 in cash. Officer Amjade Issa, meanwhile, testified that 

he heard from the victim that the cellular telephone taken from him was an LG K7 model. When 

defendant was arrested, he had $1,228 of cash in his pockets and six cellular telephones in his 

vehicle, one of which was an LG K7.5

While Officer Issa never was able to verify that the LG K7 found in the vehicle was the 

exact telephone that was taken from the victim, and no evidence was introduced that the same 

denominations of money taken from the victim were found in the vehicle, such determinative 

and specific evidence is not required to satisfy the requirements for a conviction. As this Court 

has held, “[c]ircumstantial evidence and the reasonable inferences that arise from that evidence 

can constitute satisfactory proof of the elements of the crime.” Blevins, 314 Mich App at 357. 

Here, the jury was well-supported to infer that the LG K7 cellular telephone found in defendant’s 

vehicle was the same as the one taken from the victim. See id. Further, the jury could also 

 5 Defendant’s argument appears to impliedly rely on the presumption that the larceny must have 

been completed in order to sustain his armed robbery conviction. He is incorrect. People v 

Williams, 491 Mich 164, 183; 814 NW2d 270 (2012) (holding that a defendant “may be guilty of 

armed robbery even if the larcenous taking is not completed.”). Thus, to the extent he has relied 

on that mistaken statement of law, his argument is without merit. Id.
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reasonably infer that $800 of the $1,228 found in defendant’s pocket was the money taken from 

the victim during the robbery. See id. Those inferences were further supported by the jailhouse 

telephone call made by defendant, in which he admitted to going through the victim’s pockets. 

Because “[i]t 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 be accorded those inferences,” this 

Court will not disturb the jury’s decision to believe that the cellular telephone and cash found in 

defendant’s possession belonged to the victim. Hardiman, 466 Mich at 428.

In sum, defendant’s challenge to the larceny element of his armed robbery conviction is 

without merit because the record provides abundant support for the jury’s verdict. See id. 

Although defendant does not challenge the remaining elements of the armed robbery conviction, 

it is clear that there was sufficient evidence to support that conviction considering the victim’s

testimony that he was held at gunpoint and threatened to be shot while the larceny occurred. See 

Muhammad, 326 Mich App at 61.

IV. THE JURY’S REQUEST TO REHEAR THE VICTIM’S TESTIMONY

Defendant argues that the trial court abused its discretion by declining the jury’s request 

to rehear the victim’s testimony during deliberations. This issue has been waived and the error 

extinguished.6

“[I]ssues for appeal must be preserved in the record by notation of objection . . . .” 

People v Carter, 462 Mich 206, 214; 612 NW2d 144 (2000). A failure to properly object to an 

issue forfeits that issue, but does not extinguish the error; instead, it allows for plain error review. 

Id. at 215-216. See also Carines, 460 Mich at 763. Waiver, however, occurs when a defendant 

“affirmatively approve[s]” an issue before the trial court, only to later argue on appeal that there 

was error. People v Jackson, 313 Mich App 409, 420; 884 NW2d 297 (2015). When waiver 

occurs, unlike forfeiture, the error is extinguished. Carter, 462 Mich at 215.

Here, after deliberating for about 90 minutes, the jury submitted a request to the trial 

court to rehear the victim’s testimony. The trial court called the jury into the courtroom and 

instructed the jurors to rely on their collective memories. When the jury returned to deliberate, 

the trial court asked if the parties agreed with the instruction. Defense counsel answered, “[y]es, 

your Honor.” Considering that defendant, via his counsel, “affirmatively approved the jury 

instruction as read . . . [he] has [] waived his right to challenge any error in [that] instruction.” 

Jackson, 313 Mich App at 420. In other words, the error is extinguished. Carter, 462 Mich at 

215.

 6 Defendant’s alternative argument that defense counsel was ineffective for agreeing to the trial 

court’s instruction will be addressed in Section V(C)(1) of this opinion.
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V. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant contends that defense counsel was ineffective for a multitude of reasons. For 

the reasons addressed individually herein, we disagree.

A. PRESERVATION & STANDARD OF REVIEW

In order to preserve a claim of ineffective assistance of counsel, defendant was required 

to “move the trial court for a new trial or a Ginther[7] hearing.” Jackson, 313 Mich App at 431

(footnote added). While defendant twice moved the trial court for a new trial on remand, he did 

not do so on the grounds presented in this issue on appeal. Thus, this issue has not been 

preserved for our review. See id. “Appellate review of an unpreserved argument of ineffective 

assistance of counsel, like this one, is limited to mistakes apparent on the record.” People v 

Johnson, 315 Mich App 163, 174; 889 NW2d 513 (2016). “ ‘The denial of effective assistance 

of counsel is a mixed question of fact and constitutional law, which are reviewed, respectively, 

for clear error and de novo.’ ” People v Schrauben, 314 Mich App 181, 189; 886 NW2d 173 

(2016), quoting People v Brown, 279 Mich App 116, 140; 755 NW2d 664 (2008).

B. GENERAL LAW

“Criminal defendants have a right to the effective assistance of counsel under the United 

States and Michigan Constitutions.” Schrauben, 314 Mich App at 189-190, citing US Const, Am 

VI; Const 1963, art 1, § 20. “However, effective assistance of counsel is presumed, and the 

defendant bears a heavy burden of proving otherwise.” Schrauben, 314 Mich App at 190. The 

United States Supreme Court has held that “in order to receive a new trial on the basis of 

ineffective assistance of counsel, a defendant must establish that ‘counsel’s representation fell 

below an objective standard of reasonableness’ and that ‘there is a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” 

People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012), quoting Strickland v Washington, 

466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “When reviewing defense 

counsel’s performance, the reviewing court must first objectively ‘determine whether, in light of 

all the circumstances, the identified acts or omissions were outside the wide range of 

professionally competent assistance.’ ” Jackson, 313 Mich App at 431, quoting Strickland, 466 

US at 690. “Next, the defendant must show that trial counsel’s deficient performance prejudiced 

his defense—in other words, that ‘there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.’ ” Jackson, 313 

Mich App at 431, quoting Vaughn, 491 Mich at 669.

This Court will not find trial counsel to be ineffective where an objection would have 

been futile; nor will it second guess matters of trial strategy. Thomas, 260 Mich App at 457; 

People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999). “The defendant ‘bears the 

burden of demonstrating both deficient performance and prejudice[;] the defendant [also] 

 7 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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necessarily bears the burden of establishing the factual predicate for his claim.’ ” People v 

Cooper, 309 Mich App 74, 80; 867 NW2d 452 (2015), quoting People v Carbin, 463 Mich 590, 

600; 623 NW2d 884 (2001) (alteration in Cooper).

C. APPLICABLE LAW & ANALYSIS

Defendant argues that defense counsel was ineffective at trial for failing to object to the 

trial court’s instruction to the jury regarding rehearing the victim’s testimony. In his Standard 4 

brief, defendant also argues that defense counsel was ineffective for failing to object to hearsay 

evidence, character evidence, and prosecutorial errors, and to investigate and introduce evidence 

of valid defenses. We address each in turn.

1. THE JURY’S REQUEST TO REHEAR THE VICTIM’S TESTIMONY

Assuming without deciding that defense counsel would have had a valid objection to the 

trial court’s instruction to the jurors to rely on their collective memories instead of rehearing the 

victim’s testimony,8 defendant’s argument that defense counsel was ineffective for failing to 

object to that potentially erroneous instruction is meritless for two reasons. 

First, defendant has failed to “overcome the strong presumption that his counsel’s action 

constituted sound trial strategy under the circumstances.” People v Toma, 462 Mich 281, 302; 

613 NW2d 694 (2000). As this Court has noted, experienced attorneys are “certainly aware that 

‘there are times when it is better not to object[,]’ ” even to obvious errors. People v Unger, 278 

Mich App 210, 242; 749 NW2d 272 (2008) (citation omitted). This is such a case. The jurors 

requested to rehear testimony of the victim, the witness who provided the most damaging 

evidence against the defense. Indeed, defendant tacitly acknowledges the prejudicial nature of 

the victim’s testimony by arguing that the trial court should never have admitted it, citing it as 

the sole testimony that a gun was involved in the robbery. Had defense counsel objected to the 

trial court’s instruction under the circumstances presented here, he essentially would have been 

advocating for the jury to be permitted to rehear the most damaging testimony in the case. Thus, 

even though defense counsel potentially had a legitimate objection to make, considering MCR 

2.513(P), the record supports that it was sound trial strategy to withhold that objection. Unger, 

278 Mich App at 242. Therefore, defendant failed to overcome the presumption that defense 

 8 See, e.g., Carter, 462 Mich at 208. MCR 2.513(P) provides:

If, after beginning deliberation, the jury requests a review of certain testimony or 

evidence that has not been allowed into the jury room under subrule (O), the court 

must exercise its discretion to ensure fairness and to refuse unreasonable requests, 

but it may not refuse a reasonable request. The court may make a video or audio 

recording of witness testimony, or prepare an immediate transcript of such 

testimony, and such tape or transcript, or other testimony or evidence, may be 

made available to the jury for its consideration. The court may order the jury to 

deliberate further without the requested review, as long as the possibility of 

having the testimony or evidence reviewed at a later time is not foreclosed.
-16-

counsel’s action was sound trial strategy, and thereby failed to fulfill the first prong of the 

Strickland analysis. Strickland, 466 US at 688; Toma, 462 Mich at 302.

The second reason that defendant’s argument fails is interrelated to the first reason—

defense counsel’s alleged error did not affect the outcome of the trial because it resulted in the 

jury being stopped from rehearing damaging testimony. Under the second prong of the 

Strickland framework, defendant is required to prove “there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding would have been different.” 

Strickland, 466 US at 694. For the reasons just discussed, however, defense counsel’s failure to 

object was a matter of sound trial strategy because to do otherwise would have amounted to 

advocating for the jury to hear damaging testimony a second time. Consequently, there was no

reasonable probability that an objection by defense counsel under these circumstances would 

have changed the outcome of trial. See id. On appeal, defendant engages in a convoluted 

analysis of this issue, asserting that because the jury requested to hear the testimony, certain 

jurors must have doubted the veracity of the victim’s testimony. Defendant then asserts that the 

jurors in doubt, upon being informed that they could not rehear the testimony, decided to 

abandon their doubt in favor of conviction. Because this issue is unpreserved, our review “is 

limited to mistakes apparent on the record,” Johnson, 315 Mich App at 174, and there is nothing 

on the record to support defendant’s argument. Rather, defendant relies on his own conjecture 

and circuitous logic, which is not enough to satisfy his burden of “establishing the factual 

predicate for his claim.” Cooper, 309 Mich App at 80 (quotation marks omitted). Therefore, 

defendant also fails to fulfill the second prong of the Strickland analysis.9 Strickland, 466 US at 

694.

2. HEARSAY EVIDENCE

“ ‘Hearsay’ is a statement, other than the one made by the declarant while testifying at 

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). 

“Hearsay evidence is inadmissible unless it falls within one of the exceptions listed in the 

Michigan Rules of Evidence.” People v Solloway, 316 Mich App 174, 199; 891 NW2d 255 

(2016), citing MRE 802. “If, however, the proponent of the evidence offers the statement for a 

purpose other than to prove the truth of the matter asserted, then the statement, by definition, is 

not hearsay.” People v Musser, 494 Mich 337, 350; 835 NW2d 319 (2013).

Defendant argues on appeal that defense counsel should have objected to Officer Issa’s 

testimony regarding the victim’s statement that his cellular telephone was blue because it was 

 9 For this same reason, even if defense counsel had not waived the issue of whether the trial 

court’s instruction to the jury was improper and this Court determined that the trial court abused 

its discretion, reversal still would not have been warranted. If the issue merely was forfeited 

rather than waived, defendant still would have had to make “a showing of prejudice, i.e., that the 

error affected the outcome of the lower court proceedings.” Carines, 460 Mich at 763. He 

would have failed in that regard because the trial court’s error kept the jury from rehearing 

testimony that was damaging to the defense. See id.
-17-

inadmissible hearsay. Officer Issa’s testimony regarding the victim’s statement, however, was 

not hearsay because it was not “offered in evidence to prove the truth of the matter asserted.” 

MRE 801(c). See also Musser, 494 Mich at 350. Rather, when Officer Issa was cross-examined,

he was questioned about why he did not go through each of the six cellular telephones that were 

found in defendant’s vehicle. In response, he stated that he did not go through all of them 

because he quickly identified the cellular telephone that he was looking for—the blue LG K7. 

He testified that he stopped inspecting the telephones at that point because the blue LG K7 was 

the make, model, and color that the victim complained about being stolen from him. Thus, 

Officer Issa’s testimony regarding the victim’s statement that he had a blue cellular telephone 

stolen from him was not to prove that the victim actually had that color telephone taken from his 

possession. Instead, the testimony was to explain why Officer Issa conducted his investigation in 

the manner in which he did. As this Court has held, “a statement offered to show why police 

officers acted as they did is not hearsay.” People v Chambers, 277 Mich App 1, 11; 742 NW2d 

610 (2007). Consequently, because Officer Issa’s testimony was not hearsay, MRE 801(c), and 

was thus admissible, Chambers, 277 Mich App at 11, defense counsel could not possibly have 

been ineffective by failing to object to the evidence because any objection would have been 

futile. People v Head, 323 Mich App 526, 539; 917 NW2d 752 (2018) (holding that “defense 

counsel was not ineffective for failing to make a meritless or futile objection.”).

Defendant also argues that defense counsel failed to object to the hearsay statements of 

the officers regarding the fact that the victim identified defendant quickly, and that the victim 

heard defendant’s name from his cousin. Recall that “ ‘[h]earsay’ is a statement, other than the 

one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the 

truth of the matter asserted.” MRE 801(c) (emphasis added). A “statement” meanwhile is 

defined as “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended 

by the person as an assertion.” MRE 801(a). “Thus, physical conduct or reactions are not

hearsay as long as the conduct or reactions are not intended as assertions.” People v Gursky, 486 

Mich 596, 625 n 55; 786 NW2d 579 (2010). As noted, defendant challenges defense counsel’s 

failure to object to the officers’ testimony that the victim identified defendant incredibly quickly 

during the live lineup at the police station on the day after the robbery. Defendant argues that the 

officers’ testimony in that regard was inadmissible hearsay. Simply stated, the rate at which the 

victim identified defendant was physical conduct that the victim obviously did not “intend[] . . .

as an assertion.” MRE 801(a). Therefore, the officers’ testimony was not regarding a 

“statement” by the victim, under MRE 801(a), and thus was not hearsay under MRE 801(c). See 

Gursky, 486 Mich at 625 & n 55. In sum, defense counsel was not ineffective for failing to 

object to testimony where his objection would have been futile. Head, 323 Mich App at 539.

Defendant also asserts that the officers’ testimony regarding the victim’s discovery of 

defendant’s name was inadmissible hearsay. However, a review of the record reveals that it was 

the victim who testified that he discovered defendant’s name from his cousin. The only 

statement made by any officer regarding the victim’s cousin was Officer Mitchell’s testimony 

that the cousin in question knew Jones, and that was how the victim met him. No officer 

testified about the victim’s cousin telling the victim defendant’s name. Therefore, defendant

cannot establish ineffective assistance of counsel because he failed to bear his “burden of 

establishing the factual predicate for his claim.” Cooper, 309 Mich App at 80 (quotation marks 

omitted).
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Although a bit unclear, defendant appears to argue that in addition to being inadmissible 

hearsay, the admission of all of the above evidence also violated his constitutional right under the 

Confrontation Clause, and defense counsel was ineffective for failing to move for it to be 

stricken. That argument plainly is without merit. First, with respect to Officer Issa’s testimony 

regarding the color of the cellular telephone, “[b]ecause the Confrontation Clause does not bar 

the use of out-of-court testimonial statements for purposes other than establishing the truth of the 

matter asserted, the testimony did not violate defendant’s right of confrontation.” Chambers, 

277 Mich App at 11. See also Crawford, 541 US at 59 n 9. As for the officers’ testimony 

regarding the quickness with which the victim identified defendant, it was the officers in 

question that observed the victim’s rate of identification, and those officers plainly were 

available for cross-examination about what they witnessed, thereby satisfying the Confrontation 

Clause. See People v Bruner, 501 Mich 220, 229; 912 NW2d 514 (2018) (holding that a 

defendant’s “confrontation right would have been vindicated by cross-examining” the witness at 

issue).

To the extent that defendant appears to argue that he was barred from cross-examining 

the victim regarding his identification of defendant and the victim’s discovery of defendant’s 

name from his cousin, such an argument clearly is without merit where—as discussed in more 

depth above—the victim identified defendant, testified about his cousin during the preliminary 

examination, and was cross-examined regarding that evidence by defendant’s counsel at the 

time.10 See id. at 227, quoting Crawford, 541 US at 59 (“ ‘Testimonial statements of witnesses 

absent from trial’ may be admitted ‘only where the declarant is unavailable, and only where the 

defendant has had a prior opportunity to cross-examine.’ ”). Considering that there was no 

confrontation issue, defense counsel was not ineffective for failing to make a futile objection on 

that ground. See Head, 323 Mich App at 539.

In sum, defendant’s argument that defense counsel was ineffective for failing to object to 

various hearsay evidence and Confrontation Clause issues fails the first prong of the Strickland

analysis because abstaining from making futile objections is not objectively unreasonable. 

Strickland, 466 US at 688; Head, 323 Mich App at 539.

3. INVESTIGATION AND INTRODUCTION OF EVIDENCE

Defendant next argues that defense counsel was ineffective for failing to investigate and 

introduce evidence that would have provided him with a valid defense. “Decisions pertaining to 

what evidence to present . . . are presumed to be matters of trial strategy.” People v Bosca, 310 

Mich App 1, 36; 871 NW2d 307 (2015). “Defense counsel’s failure to present certain evidence 

 10 Furthermore, as also discussed in this opinion, defense counsel objected to admission of the 

victim’s identification of defendant in his preliminary examination on the grounds of a 

constitutional confrontation violation. That objection was overruled because it was without 

merit. Consequently, defendant’s allegation that defense counsel was ineffective for failing to 

make an objection that he actually made is without merit, because defendant failed to prove the 

factual predicate for his claim. See Cooper, 309 Mich App at 80.
-19-

will only constitute ineffective assistance of counsel if it deprived defendant of a substantial 

defense.” People v Dunigan, 299 Mich App 579, 589; 831 NW2d 243 (2013). “A substantial 

defense is one that could have affected the outcome of the trial.” People v Putman, 309 Mich 

App 240, 248; 870 NW2d 593 (2015). Defense counsel also has a “ ‘duty to make reasonable 

investigations or to make a reasonable decision that makes particular investigations 

unnecessary.’ ” People v Ackley, 497 Mich 381, 391; 870 NW2d 858 (2015), quoting Hinton v 

Alabama, 571 US 263, 274; 134 S Ct 1081; 188 L Ed 2d 1 (2014) (citation omitted). “The 

failure to reasonably investigate a case can constitute ineffective assistance of counsel.” People 

v Anderson, 322 Mich App 622, 630; 912 NW2d 607 (2018). Similar to allegations of a failure 

to produce evidence, “the failure to make an adequate investigation is ineffective assistance of 

counsel if it undermines confidence in the trial’s outcome.” Id. at 631 (quotation marks and 

brackets omitted).

During the trial, the victim’s preliminary examination testimony was read into evidence. 

In that testimony, the victim stated that he went to a gas station around 3:00 a.m. to obtain 

money with which to gamble. Defendant asserts on appeal that, had defense counsel investigated 

and introduced evidence that the victim could not have withdrawn $800 from a gas station 

Automated Teller Machine (ATM) because such transactions were limited to $250, then the jury 

would have believed that the victim stole the money in question, which then would have caused 

the jury to question the victim’s credibility. Defendant’s argument is flawed for a number of 

reasons. Initially, defendant failed to prove the factual predicate for his claim. See Cooper, 309 

Mich App at 80. The record contains no evidence that the victim would have been limited in the 

amount of money that he could have obtained from a gas station. Moreover, the victim simply 

testified that he went to a gas station to get money with which he planned to use to gamble. He 

never specifically stated that he intended to withdraw money from an ATM. Indeed he testified 

both that he planned to cash a check and get “money off a card at the gas station.” Therefore, 

even assuming that defendant is correct that a gas station ATM is limited to $250 withdrawals, 

the record also supports that the victim could have obtained additional money from cashing a 

check. Defendant’s failure to establish the factual predicate is fatal to his claim. See id.

Defendant’s argument regarding the money obtained by the victim at a gas station is also 

flawed because defendant’s suggestion that proper investigation and introduction of evidence 

would have provided a “substantial defense” is entirely without merit. See Putman, 309 Mich 

App at 248. The reason defendant’s argument fails is plain when considering the evidence that 

would have been presented to the jury if everything defendant argues should have occurred did 

occur. For example, assume that defense counsel investigated the gas station at which the victim 

obtained money, discovered that the ATM at that gas station only allowed for $250 withdrawals 

and potentially did not cash checks, and then introduced that evidence at trial. That evidence 

would not have supported a substantial defense because it is almost entirely irrelevant as the 

victim’s possession of $800 at the time of the robbery was easily explainable. For example, it 

was equally likely that the victim had a certain sum of money before going to the gas station and 

planned to obtain extra money, or that he went to the dice game with $250 and won the 

additional $550 throughout the night. Indeed, the victim testified that Jones first became angry 

because the victim was winning money. Considering his possession of $800 is easily 

explainable without regard to the gas station’s rules regarding ATM withdrawals, any 
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introduction of evidence with respect thereto would not have created a substantial defense. See 

id. 

Operating under the presumption that defense counsel engaged in a reasonable trial 

strategy, as this Court must, Toma, 462 Mich at 302, it is clear that defense counsel likely 

considered the same facts just discussed, and made a reasonable determination that further 

investigation was not warranted or necessary because the evidence would not have made a 

difference. See Ackley, 497 Mich at 391; see also Putman, 309 Mich App at 248. This Court 

will not second guess that reasonable trial strategy on appeal. See Rockey, 237 Mich App at 76-

77.

Also at trial, Officer Issa testified that when he first met with the victim, immediately 

following the robbery, he saw that the victim’s hands were scraped. Defendant contends that had 

defense counsel obtained the victim’s medical records or photographs of the allegedly injured 

hands, it would have shown that the victim did not have scraped hands, which then would have 

allowed defense counsel to object to Officer Issa’s testimony, and have it precluded. Defendant 

then concludes that such evidence, or lack thereof, would have led the jury to believe that the 

victim was lying about the robbery. Defendant’s argument again fails because he failed to prove

the factual predicate for his claim. See Cooper, 309 Mich App at 80. The record contains no 

evidence that the victim’s hands were not scraped when he first spoke to Officer Issa. Nor has 

defendant provided any proof that the medical records and photographs he alleges his counsel 

should have obtained actually exist. Indeed, it is equally possible, and maybe more likely, that 

the victim never sought medical treatment for a scraped hand, and the police did not photograph 

it. Contrary to the argument by defendant, a lack of medical treatment or photographs does not 

mean that the injury did not exist. There was no indication on the record from Officer Issa that 

the victim’s apparent injury was serious, or required medical attention or photographing. Thus, 

the absence of those documents would not be determinative evidence that an injury did not 

occur. In light of this utter lack of support for his argument, defendant’s claim in this respect 

must fail. See id.

Moreover, to the extent that defendant appears to argue that Officer Issa would have been 

barred from testifying regarding the victim’s injuries if defense counsel had presented proof of 

no medical records or photographs, he is incorrect. “MRE 701 permits lay witnesses to testify 

about opinions and inferences that are ‘(a) rationally based on the perception of the witness and 

(b) helpful to a clear understanding of the witness’[s] testimony or the determination of a fact in 

issue.’ ” People v McLaughlin, 258 Mich App 635, 657; 672 NW2d 860 (2003). Officer Issa 

observed that the victim’s hands were scraped, and testified that he believed that evidence 

supported the victim’s assertion that he had fallen while running away from Jones. Because that 

testimony by Officer Issa was “rationally based on the perception of the witness and helpful to a 

clear understanding of a fact in issue,” People v Daniel, 207 Mich App 47, 57; 523 NW2d 830 

(1994), it was admissible, with or without supporting documentation. Thus, any objection by 

defense counsel on that ground would have been futile, so he was not ineffective for failing to 

make that objection. See Head, 323 Mich App at 539; see also McLaughlin, 258 Mich App at 

657. Finally, and briefly, proof that the victim was not injured as alleged would not have 

provided defendant a substantial defense because proof of an injury to a victim was not an 

element of any of the charged offenses. See Putman, 309 Mich App at 248. Therefore, proof of 

a lack of an injury would not have affected the outcome of trial. See id.
-21-

In sum, because defendant failed to prove the factual predicate of his claims and that the 

proposed defenses would have been substantial, defendant’s assertion that he was denied the 

effective assistance of counsel fails the first prong of Strickland, 466 US at 688.

4. CHARACTER EVIDENCE

Defendant next argues that defense counsel was ineffective for failing to object to 

inadmissible and unfairly prejudicial character evidence. Specifically, defendant identifies 

testimony from the police officers regarding the fact that defendant was found with six cellular 

telephones, $1,228 in cash, a handgun holster, and “some pills.”

The Michigan Supreme Court, in considering the plain language of MRE 404(b), held 

that the phrasing of the rule “limits [its] scope to ‘[e]vidence of other crimes, wrongs, or acts’ 

that ‘are contemporaneous with, or prior or subsequent to the conduct at issue in the case’ and 

may be offered ‘to prove the character of a person in order to show action in conformity 

therewith.’ ” People v Jackson, 498 Mich 246, 262; 869 NW2d 253 (2015), quoting MRE 

404(b)(1). More importantly, “by its plain terms, MRE 404(b) only applies to evidence of 

crimes, wrongs, or acts ‘other’ than the ‘conduct at issue in the case’ that risks an impermissible 

character-to-conduct inference.” Jackson, 498 Mich at 262. Given that language of the rule, 

“acts comprised by or directly evidencing the ‘conduct at issue’ are not subject to scrutiny under 

MRE 404(b).” Id.

As noted, defendant challenges testimony from the officers that he was found with six 

cellular telephones, $1,228 in cash, a handgun holster, and “some pills.” Defendant contends 

that the introduction of that evidence made him appear to be a drug dealer, which was 

inadmissible character evidence. In the present case, the prosecution charged defendant with 

armed robbery, felon-in-possession, and felony-firearm. According to the victim’s testimony, he 

was held at gunpoint while defendant and Melton went through his pockets, taking a cellular 

telephone, $800 in cash, and some cigarettes. After relieving the victim of that property, the 

victim saw all three men get into a white Durango, and drive away from the scene. When 

defendant was pulled over in the vicinity of the robbery, he was found to have the 

aforementioned items in the vehicle or in his pockets. The presence of cellular telephones, cash, 

and a handgun holster were “acts comprised by or directly evidencing the ‘conduct at issue.’ ” 

See id. Specifically, the various telephones were evidence that defendant took a cellular 

telephone from the victim, the cash in defendant’s pocket was evidence of the cash stolen from 

the victim, and the handgun holster was evidence suggesting that a handgun was in the vehicle at 

some point—presumably the handgun used in the robbery. Because testimony regarding the 

telephones, cash, and handgun holster were in regards to the crimes charged, they were “not 

subject to scrutiny under MRE 404(b).” Jackson, 498 Mich at 262. Thus, any objection by 

defense counsel to that evidence would have been meritless, and consequently, defense counsel

was not ineffective for failing to make that futile objection. Head, 323 Mich App at 539.

Defendant also challenges defense counsel’s failure to object to the officer’s testimony 

that “some pills” were found in defendant’s vehicle. Throughout two days of trial, the only 

mention of the “pills” found in defendant’s pockets was a brief statement during Officer Issa’s 

testimony. The prosecution did not mention the pills in its closing argument. Evidence of what 

kind of pills they actually were was never introduced.
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Assuming without deciding that the “pills” in question were some form of illegal drugs, 

defendant has failed to overcome the strong presumption that defense counsel’s failure to object 

was sound trial strategy. Toma, 462 Mich at 302. Based on our thorough review of the record, 

the discussion of the “pills” found in defendant’s pocket was quite limited. The pills were only 

mentioned in passing as something found during the search, were never specifically identified,

and the prosecution seemed to intentionally move away from the topic when it arose. An 

objection by defense counsel at that moment would have drawn intensified and unnecessary 

focus on the pills. Absent the objection, the pills remained undefined, and could have been overthe-counter medication such as aspirin or ibuprofen, medication that defendant was prescribed, 

or, at worst, illegal street drugs. If defense counsel had objected, the jury likely would have been 

pushed to assume that the pills were negative in some manner. By not objecting, defense counsel 

allowed the jury to avoid focusing on those pills and their nature. As this Court previously has 

acknowledged, experienced attorneys are “certainly aware that ‘there are times when it is better 

not to object[,]’ ” even to obvious errors. Unger, 278 Mich App at 242. In this instance, we 

must presume that defense counsel’s decision was strategic, and under the facts presented it 

certainly was a reasonably strategic choice. See Toma, 462 Mich at 302; see also Unger, 278 

Mich App at 242.

To summarize, defense counsel’s objection to evidence of the cellular telephones, $1,228 

in cash, and handgun holster would have been futile, and defense counsel’s lack of objection to 

the mention of “some pills” found in defendant’s pocket was reasonable trial strategy. Because 

this Court will not find trial counsel to be ineffective where an objection would have been futile 

or second guess matters of trial strategy, defendant’s arguments fail the first prong of the

Strickland analysis. Strickland, 466 US at 688; Thomas, 260 Mich App at 457; Rockey, 237 

Mich App at 76-77.

5. ALLEGED PROSECUTORIAL MISCONDUCT

Defendant also argues that defense counsel was ineffective for failing to object to two 

separate instances of prosecutorial misconduct.

11 Initially, he argues that defense counsel should 

have objected to the prosecution’s misstatement of facts in the record during its closing 

argument. We initially consider whether the prosecution’s statements actually were improper. 

“[A] prosecutor is free to argue the evidence and all reasonable inferences arising from it as [it] 

relate[s] to . . . [the] theory of the case.” Johnson, 315 Mich App at 201 (quotation marks 

omitted; alterations in original). “The prosecution has wide latitude in arguing the facts and 

reasonable inferences, and need not confine argument to the blandest possible terms.” People v 

Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007).

Defendant challenges the statement during the prosecution’s closing argument that the 

cellular telephone found in the white Durango was the “same phone” as the one reported stolen 

 11We employ the phrase “prosecutorial misconduct” as a term of art synonymous with 

“prosecutorial error,” not as an indication that the prosecution engaged in intentional misconduct. 

Jackson, 313 Mich App at 425.
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from the victim. Defendant’s argument relies on the fact that Officer Issa testified that he never 

was able to definitively verify that the LG K7 cellular telephone found in the vehicle driven by 

defendant was the exact one taken from the victim. Importantly, although Officer Issa never was 

able to specifically identify the cellular telephone as belonging to the victim, he also never was 

able to rule it out, because he could not get the telephone to power on.

During closing argument, the prosecution is permitted to argue inferences from the 

evidence that support its theory of the case. See Johnson, 315 Mich App at 201. It was 

reasonable for the prosecution to infer that the LG K7 cellular telephone owned by the victim, 

which he reported was stolen by someone who drove away in a white Durango, was the same LG 

K7 model telephone that was found in the white Durango in which defendant was pulled over 

near the scene of the robbery. See id. Nor was it an error to argue that the telephones were the 

same to the jury in a persuasive manner because, as noted, the prosecution is not required to 

make its arguments using “the blandest possible terms.” Dobek, 274 Mich App at 66. In any 

event, the jury was instructed that the statements of the lawyers were not evidence, and 

“[b]ecause jurors are presumed to follow their instructions . . . any error was harmless.” Henry, 

315 Mich App at 150 (citation omitted).

Therefore, the prosecution did not commit error by making the challenged argument, and 

defense counsel was not ineffective for failing to make a futile objection thereto. Strickland, 466 

US at 688; Head, 323 Mich App at 539.

Defendant lastly argues that defense counsel should have objected when, at the first 

sentencing hearing, the prosecution threatened the victim with perjury charges should he recant 

and provide differing testimony from that given during the preliminary examination. Defendant 

contends that the prosecution’s actions violate our Supreme Court’s ruling in People v Pena, 383 

Mich 402, 406; 175 NW2d 767 (1970) (opinion by KAVANAGH, J.) (“A prosecutor may impeach 

a witness in court but he may not intimidate him—in or out of court.”). 

First, the record is not as clear as defendant suggests with respect to the allegation that 

the prosecution “threatened” the victim with perjury charges should he recant. Despite that, we

need not, and decline to, decide that issue because any error by the prosecution was rendered 

entirely and utterly harmless by our remand. Defendant’s argument on appeal is that the trial 

court would have allowed a new trial if it was permitted to hear that the victim recanted his 

testimony about the presence of a handgun during the robbery. According to defendant, it was 

the prosecution’s threat of perjury that ultimately led to the trial court’s failure to hear the 

victim’s recantation. Nevertheless, a panel of this Court remanded to the trial court to consider 

whether a new trial was warranted because of, among other circumstances, the victim’s 

recantation as provided in an affidavit. Thus, regardless of any error by the prosecution or 

defense counsel’s failure to object, the trial court ultimately considered the victim’s recantation,

and found it to be without merit. Whether that decision by the trial court was proper is analyzed 

in Section VI of this opinion. Consequently, there is no possibility that, absent defense counsel’s 

failure to object, “ ‘the result of the proceeding would have been different,’ ” because the 

“result” obtainable by such an objection actually was obtained during the remand proceedings. 

Jackson, 313 Mich App at 431, quoting Vaughn, 491 Mich at 669. Thus, defendant’s argument 

in this respect fails the second prong of the Strickland analysis. Strickland, 466 US at 694.
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VI. MOTION FOR A NEW TRIAL

Defendant argues that the trial court abused its discretion by denying his motion for a 

new trial. We disagree.

A. STANDARD OF REVIEW & GENERAL LAW

“A trial court’s decision to deny a motion for a new trial is reviewed for an abuse of 

discretion.” People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008). “An abuse of 

discretion occurs when the trial court’s decision falls outside the range of principled outcomes.” 

People v Sharpe, 502 Mich 313, 324; 918 NW2d 504 (2018). The trial court’s findings of fact 

when considering such motions are reviewed for clear error. People v Cress, 468 Mich 678, 691; 

664 NW2d 174 (2003), citing MCR 2.613(C). “Clear error exists if the reviewing court is left 

with a definite and firm conviction that a mistake has been made.” Miller, 482 Mich at 544 

(quotation marks and citation omitted).

“ ‘Historically, Michigan courts have been reluctant to grant new trials on the basis of 

newly discovered evidence.’ ” Blevins, 314 Mich App at 359, quoting People v Grissom, 492 

Mich 296, 312; 821 NW2d 50 (2012). “This policy is consistent with requiring parties to use 

care, diligence, and vigilance in securing and presenting evidence.” Blevins, 314 Mich App at 

360 (quotation marks and citation omitted). Nevertheless, “[a] trial court may grant a defendant 

a new trial on the basis of newly discovered evidence . . . .” People v Armstrong, 305 Mich App 

230, 241; 851 NW2d 856 (2014). Our Supreme Court recently restated what “a defendant must 

show” to obtain “a new trial . . . on the bases of newly discovered evidence” in People v 

Johnson, 502 Mich 541, 566; 918 NW2d 676 (2018), quoting Cress, 468 Mich at 692: “ ‘(1) the 

evidence itself, not merely its materiality, was newly discovered; (2) the newly discovered 

evidence was not cumulative; (3) the party could not, using reasonable diligence, have 

discovered and produced the evidence at trial; and (4) the new evidence makes a different result 

probable on retrial.’ ” The parties and the trial court focused solely on the third and fourth 

factors from Cress, 468 Mich at 692.

B. ANALYSIS

Defendant argues that he was entitled to a new trial on the basis of the victim’s affidavit 

recanting his testimony about the presence of a gun, and the victim’s medical records 

establishing a concerning mental health history. The trial court did not abuse its discretion in 

concluding that the new evidence did not warrant a new trial because the newly-discovered 

evidence would not have changed the outcome of the first trial. See id. Focusing first on the 

victim’s affidavit recanting his trial testimony about a gun being present at the robbery, the trial 

court found that such evidence would not have changed the outcome of the trial. “In order to 

determine whether newly discovered evidence makes a different result probable on retrial, a trial 

court must first determine whether the evidence is credible.” Johnson, 502 Mich at 566-567. “In 

making this assessment, the trial court should consider all relevant factors tending to either 

bolster or diminish the veracity of the witness’s testimony.” Id. at 567. “[A] trial court’s 

credibility determination is concerned with whether a reasonable juror could find the testimony 

credible on retrial.” Id. “As a rule the court is not impressed by the recanting affidavits of 
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witnesses who attempt to show that they perjured themselves at the trial.” People v Norfleet, 317 

Mich App 649, 661; 897 NW2d 195 (2016) (quotation marks and citation omitted).

The trial court specifically found the victim’s recantation to be “highly suspect and 

untrustworthy.” In making that decision, the trial court first noted the fact that an affidavit of a 

witness purporting to recant his previous testimony typically is given little weight. See id. The 

trial court also referenced that between the time the victim gave his preliminary examination 

testimony and the time of his recantation, a very specific reason to recant had arisen. 

Specifically, the trial court noted that the victim was paid money to avoid appearing at trial. The

trial court considered that the victim likely had the same reason for recanting his testimony. 

Summarizing, the trial court stated, “[a]ny trier of fact could see through common sense and 

reason that an individual would recant after being pressured and bribed.”

On the basis of all of that evidence, the trial court’s finding of fact that the victim’s 

recantation was not credible was not clearly erroneous. Cress, 468 Mich at 691; MCR 2.613(C). 

Furthermore, in addition to all of the valid reasons identified by the trial court, defendant himself 

acknowledges that the victim is not a credible witness. At the hearing on the motion for a new 

trial, defendant’s appellate counsel specifically stated that he did not believe it would be 

necessary to call the victim to testify considering that he lacked any credibility. Therefore, on 

the basis of its valid finding that the victim’s recantation was “highly suspect and 

untrustworthy,” the trial court did not abuse its discretion in holding that the fourth Cress factor 

was not met, and therefore, a new trial was not warranted because the outcome would be the 

same. Cress, 468 Mich at 691; Norfleet, 317 Mich App at 661.

Lastly, defendant challenges the trial court’s order denying him a new trial on the basis of

the discovery of the victim’s medical records and mental health history. Those records show that 

from March 16, 2016, until January 11, 2017, the victim was treated for mental health issues, 

including bipolar disorder, hallucinations, and delusions. There was no evidence presented that 

the victim suffered from any hallucinations or delusions at the time of the robbery or at the 

preliminary examination.

The trial court found that this evidence did not satisfy the fourth Cress factor because 

“[n]othing in the records indicate that [the victim] is less credible because he suffers from a 

mental illness.” That finding by the trial court was not clearly erroneous. The trial court 

correctly noted that the record is absent of any evidence that a diagnosis of bipolar disorder could 

somehow affect the credibility of a witness. Indeed, given the scant connection between bipolar 

disorder and the victim’s credibility, it seems likely that the evidence would not have been 

relevant, MRE 401, and thus inadmissible, MRE 402. For that reason, the trial court did not 

abuse its discretion in determining that evidence of the victim’s bipolar disorder diagnosis would 

not have changed the outcome of trial—thereby failing the fourth Cress factor. Cress, 468 Mich 

at 691. 

Unlike the bipolar disorder diagnosis, the victim’s history of delusions and hallucinations 

likely would have been considered relevant. Nevertheless, the trial court still did not abuse its 

discretion in determining that the evidence of the victim’s hallucinations and delusions would 

not have changed the outcome of trial. This is primarily because the victim intended to recant 

his testimony if recalled as a witness. His recantation was not based on the fact that he 
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hallucinated the robbery, or that his view of the gun was the subject of a paranoid delusion, but 

that he lied in his preliminary examination testimony. Thus, during any retrial, a jury would be 

highly unlikely to believe that the victim hallucinated the presence of the gun at the robbery. 

Instead, the jury would be forced to choose between two options: the victim’s testimony at the 

preliminary examination that a gun was present, and his testimony at the retrial that the gun was 

not present, and he previously perjured himself. The alleged delusions and hallucinations brings 

into question the likelihood of both versions of the event proposed by the victim—not just the 

first one. In other words, it is equally likely that the victim’s recantation was the subject of a 

delusion or hallucination, rather than his original testimony being incorrect because of those 

same issues.

For the reasons already discussed, any reasonable juror would not believe the victim’s 

recantation due to its scant credibility. Furthermore, the jury also would be presented with 

evidence that defendant was found driving the vehicle the victim identified as driving away from 

the robbery, defendant possessed $1,228 when the victim reported that he had been robbed of 

$800, defendant had a LG K7 cellular telephone—the same model reported stolen by the 

victim—in the vehicle, and a handgun holster also was in the vehicle. The jury also was played a 

jailhouse telephone call from defendant where he openly admitted to going through the victim’s 

pockets. In light of all of that corroborating evidence, any reasonable juror would have written 

off the alleged delusions and hallucinations in favor of the victim’s testimony before he was 

bribed to change it. Therefore, as the trial court determined, the evidence would not have 

changed the outcome of trial, so the trial court’s denial of defendant’s motion for a new trial was 

not an abuse of discretion. Johnson, 502 Mich at 566-567; Cress, 468 Mich at 691.

Affirmed.

/s/ Jonathan Tukel

/s/ Kathleen Jansen

/s/ Michael J. Riordan