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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 22, 2015

v No. 318564 Wayne Circuit Court MARCUS DARNELL SIMMONS, LC No. 13-004178-FC

Defendant-Appellant.

Before: D ONOFRIO , P.J., and B ORRELLO and S TEPHENS , JJ.

P ER C URIAM

. Defendant appeals as of right his jury trial convictions of fi rst-degree premeditated murder, MCL 750.316, assault with intent to commit murder, MCL 750.83, assault with intent to do great bodily harm less than murder, MCL 750.84, possession o f a firearm by a person convicted of a felony (felon-in-possession), MCL 750.224f, and possession of a firearm during the commission of a felony (f elony-firearm), MCL 750.227b. Def endant was sentenced, as a second habitual offender, MCL 769.10, to life in prison withoutparole for the first-degree premeditated murder conviction, 36 to 60 years’ imprisonment fo r the assault with intent to murder conviction, 10 to 15 years’ imprisonment for the assault with intent to do great bodily harm less than murder conviction, 5 to 7 1⁄2 years’ imprisonment for the felon-in-possession conviction, and two years’ imprisonment for the felony-firearm conviction. For the reasons set forth in this opinion, we affirm t he convictions and sentences of defendant.

I. BACKGROUND.

This appeal arises from a shooting on April 19, 2013, in Detroi t, Michigan, which resulted in the death of one of the victims, Donte Mack. On Ap ril 19, 2012, at approximately 4 or 5:00 p.m., Faris Matti was working at the K & G Market on Ea st Warren. 1 According to Matti, defendant came into the K & G Market every day, when def endant came in on April 19, 2013, Matti noted that defendant was wearing a jacket with a pi cture of President Obama’s face stitched into the back. At approximately 8:45 p.m., Kila Parks drove herself, Donte Mack, and

1 We note that in the record, various witnesses refer to the K & G Market by several names throughout the trial. In this opini on we refer the store as th e “K & G Market.”-2- their one-year-old daughter Dariyah Mack, to the K & G Market i n Parks’ Saturn. When they arrived at the K & G Market, Donte went straight inside and Parks noticed defendant standing against the K & G Market approximately 9 to 12 feet from where she was sitting in her car. At some point, Parks noticed that defendant entered the K & G Mark et through the side wearing a black “hoodie” sweatshirt. Inside the store, defendant purchas ed chips, threw money at Matti, and left the store.

Parks saw that Donte had come out of the K & G Market, so she unlocked her doors, when he got inside the car he locked the doors. Parks saw defe ndant walking behind Donte, and as soon as Donte locked the doors, she heard gunshots. Parks s aw the bottom of defendant’s pants and “hoodie” sweatshirt thr ough the passenger side windowof the car. Parks heard a total of 10 or 11 gunshots, which sounded like they came from the sam e gun and lasted for approximately 10 seconds. Matti also heard gunshots approximat ely 30 or 40 seconds after defendant left the store. Matti testified that he looked up an d saw the shooting through the K & G Market’s security camera.

After the shooting stopped, Parks saw defendant run, she then got out of the car and began to scream. Donte told her to grab Dariyah, he fell and s at down outside of the store, Parks took Dariyah into the K & G Market. During the shooting, Parks was shot twice in the leg, twice in the arm, once in the bladder, once in the kidney, and once i n the liver. Dariyah was not injured.

Detroit Police Officer Michael A ngeleri arrived at the scene a nd saw a car with the passenger side window shot or broken out. He also saw Donte ly ing face down at the entrance of the K & G Market. Donte and Par ks were transported to the hosp ital by ambulance, but Donte was dead on arrival. Parks had surgery on her arm and bladder. After the incident, Parks was shown a photographic lineup and ide ntified defendant as the sho oter.

Detroit Police Officer Lance Sullivan arrived at the scene of the incident at approximately 11:00 p.m., and obtai ned surveillance videotape f ootage from the K & G Market. Several “screen shot” images of the videotape footage were admi tted at trial. One image showed Donte at the counter of the K & G Market, while another image s howed a person in dark clothing, a dark “hooded” jacket, and white shoes entering the K & G Market. The next image showed the person at the store counter, then the next images sh owed Donte walking toward the door of the K & G Market and exiting. The person in dark cloth ing then exited the store. Other images presented at trial showed a person wearing a “dark hood” standing at the passenger side door of a car extending his arm toward the door, an image showi ng a person with his right arm pointing and an image of a shadow on the sidewalk, and a “long item” appeared near the head of the person in the shadow. Additionally, the surveillance video tape recordings were also played at trial, and Officer Sullivan de scribed what they depicted. O ne videotape recording showed an individual walk to a car parked at the K & G Market, and anothe r individual approached the car. Two additional videotape recordings showed Donte leave the K & G Market, the man in the “hooded” sweatshirt leave, and a young woman come into the stor e with a young child shortly thereafter. Relative to the surveillance evidence, Matti infor med the police that the video recording revealed that defendant was the person who started sh ooting.-3- Matti testified that on April 20, 2013, defendant came into the K & G Market. Matti telephoned the police, who searched the area and found defendan t with a woman, DeAngela Kelly. Defendant was wearing a jacket with President Obama’s p icture on the back, he was immediately arrested and while conducting a search of his jacke t, Detroit Police Officer Jarmiare McEntire, recovered 26 packages of marijuana.

DeAngela Kelly testified as defendant’s alibi witness at trial , stating that she lived at 15736 Munich at the time of the incident, was a friend of defen dant and her sister was defendant’s girlfriend. Kelly f urther testified that defendantcame to Kelly’s house on April 19, 2013, at approximately 6 or 7:00 p.m., wearing a red shirt, blu e jeans, and a coat. According to Kelly, defendant fell asleep on the floor of her bedroom, so sh e and her son went into another room to watch television. Kelly ’s sister arrived at her house at approximately 8:00 p.m., and she stayed at the house until sometime between 8:30 and 9:00 p.m. Kelly said defendant was at her house until she fell asleep at approximately 9:15 or 9:30 p.m., when she woke up around 1 or 2:00 a.m., defendant was no longer in her house. Defendant tes tified on his own behalf at trial, explaining that he and Donte were friends and there was no ill will between them. According to defendant, he went to the K & G Market at approximately 3:30 p. m. on April 19, 2013. He admitted that he was wearing the jacket with President Obama’s face on it and further testified that he encountered Donte at the K & G Market, and Donte had gi ven defendant advice because someone had tried to rob him earlier in the day. Defendant tes tified that he left the K & G Market at approximately 4:30 or 5:00 p.m and went to Kelly’s ho use approximately one hour later, wearing a red T-shirt and blue “Mack” jeans, he said tha t he left his black “hoodie” sweatshirt and coat downstairs. Defendant testified that he le ft Kelly’s house at approximately 9:15 or 9:30 p.m. because he had heard that there had been a sh ooting, so he went to the K & G Market where he said he stayed for 5 or 10 minutes. At approxi mately 9:40 p.m., defendant said he left the scene of the incid ent and partied with a woman name d Ashley for the r est of the night.

Defendant testified that he sold medical marijuana, but he did not have a prescription to sell medical marijuana. Defendant also admitted to selling dru gs on occasion while he was at the K & G Market, but that he never intended to sell the 26 bags of marijuana that were found in his coat when he was arrested. He also admitted at trial, that dur ing a telephone conversation in jail, he said that Donte was the man he “wacked out.” However, accor ding to defendant’s testimony, he meant to say: “Is that the one they said that I shot?”

The jury convicted defendant a s outlined above. Defendant was then sentenced by the trial court as previously sta ted. This appeal then ensued.

II. ANALYSIS.

On appeal defendant first argues that the trial judge exhibite d bias in favor of the prosecution when he questioned six of the prosecution’s witness es. However, defendant did not object to the trial court’s ques tioning of witnesses during the trial. A defendant must raise the issue of judicial bias in the tri al court in order to preserve the issue for appellate review. People v Jackson , 292 Mich App 583, 597; 808 NW2d 541 (2011). Because there wa s no objection posited in the trial court relativ e to the trial judge asking q uestions, this issue is unpreserved. See id . This Court reviews an unpreserved claim of judicial bias for plain error affecting the defendant’s substantial rights. Id . The requirements for plain error are: “1) error must have-4- occurred, 2) the error was plai n, i.e., clear or obvious, 3) an d the plain error affected substantial rights.” People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). An error affects the defendant’s substantial rights if the defendant was prejudiced because the error affected the outcome of the trial. Id

. A defendant is entitled to a neutral and detached magistrate d uring a criminal trial. People v Cheeks , 216 Mich App 470, 480; 549 NW2d 584 (1996). There is a “‘hea vy presumption of judicial impartiality.’” Jackson , 292 Mich App at 598 (citation omitted). This Court examines whether a trial j udge’s actions unduly influence d the jury and deprived the defendant of his right to a fair trial. Id . “A trial court may question a witness in order to clarify testimony or elicit additional relevant information.” People v Weathersby , 204 Mich App 98, 109; 514 NW2d 493 (1994). See also MRE 614(b) (“The court may interrogate witnesses, whether called by itself or by a party.”) However, “[w]hile a trial court may question witnesses to clarify testimony or elicit additional relevant information, the trial court must exercise caution and restraint to ensure that its questions are not intimidating , argumentative, prejudicial, unfair, or partial.” Cheeks , 216 Mich App at 480. This Cour t has clarified that “[t]he te st is whether the judge’s questions and comments may have unjustifiably aroused s uspicion in the mind of the jury concerning a witness’ credibility and whether partiality q uite possibly could have influenced the jury to the detriment of the defendant’s case.” Id

. On appeal, defendant first claims that the trial judge imprope rly questioned Parks, citing the following exchange:

THE COURT: Ms. Parks, you dr ove the car, right? THE WITNESS: Yes. THE COURT: All right. And Mr. Mack was in the passenger seat o f the front seat? THE WITNESS: Yes. THE COURT: And do you remember where you parked the car when yo u pulled up in front of K & G Party Store? THE WITNESS: Yes, I do. THE COURT: If I gave you a little piece of paper, could you draw in for us where the car was? THE WITNESS: If I could. THE COURT: Okay. You see it says K & G Party Store. THE WITNESS: Yes, and the sidewalk. THE COURT: And the sidewalk. Okay. Draw in for us where you p arked your car. Can you 10 put an X where you first saw this person that 11 ultimately wound up shooting? Put an X where he was standing. Okay. Now put an S, the letter S, where he was when the shooting started. When this sh ooting took place, did the person who was doing the s hooting say anything? THE WITNESS: No. THE COURT: When the shooting took place, Mr. Mack was already i n the car? THE WITNESS: Yes. THE COURT: In the front s eat, passenger side? THE WITNESS: Yes. THE COURT: You had never gotten out of 24 the car by that time, had you?-5- THE WITNESS: No. THE COURT: And your daughter was i n the center of the back seat ? THE WITNESS: Yes. THE COURT: So Mr. Mack was in b etween the shooter and your daug hter? THE WITNESS: Excuse me? THE COURT: In the car there was a shooter that was outside; is that right? THE WITNESS: Yes. THE COURT: Mr. Mack was seated in the front seat on the passeng er side, right? THE WITNESS: Yes. THE COURT: And your daughter was i n the back seat, correct? THE WITNESS: Yes. THE COURT: So who was between t he shooter and your daughter? THE WITNESS: Mr. Mack, my child’s father. THE COURT: Right. Was there a ny particular reas on why you were going to this K & G Party Store that night? THE WITNESS: No. It’s the neighborhood store. THE COURT: No further que stions. Redirect.

It is evident from this record that the trial judge was questi oning Parks to acquire a better understanding of the position of the victims in the car. Addit ionally, the trial judge asked a single question as to why Parks had gone to the store that part icular evening. Our review of this questioning does not reveal that the trial judge improperly que stioned Parks. See Cheeks , 216 Mich App at 480. Rather, the tri al judge’s questions served to clarify Parks’ testimony regarding the incident, and the trial court did not exhibit any bias or p rejudice in questioning Parks. Nor can we find that the questions may have unjustifiably aroused s uspicion in the mind of the jury concerning Parks’ credibili ty. Accordingly, w e assign no error

. Next, defendant argues that t he questioning of Detroit Police Officer David Andrews regarding the caliber and make of the shell casings was prejudi cial. Specifically, defendant cites the following exchange:

THE COURT: Officer Andrews, can you just return to your seat, p lease? The spent shell casings that you and your partner found outside of 15500 East Warren, were they all of the same caliber? THE WITNESS: No, they weren’t. THE COURT: Look at the jury a nd speak into the microphone. THE WITNESS: No, the casings were not -- they were of the same caliber. They were not of the same make. I’m sorry. THE COURT: They were all of the same caliber, but not of the sa me make. And by “make,” what are you talking about? THE WITNESS: Manufacturer. THE COURT: Okay. What was the caliber of the spent shell casin g that you found? THE WITNESS: If I ca n refer to my report. THE COURT: Yes, you may. THE WITNESS: The caliber was a .40 caliber shell casings.-6- THE COURT: Okay. Now, these were ammunition for a rifle or for a handgun. THE WITNESS: For a handgun. THE COURT: And generally speaki ng, there’s two different types of handguns, right, a revolver and a semi-automatic? THE WITNESS: That’s correct. 16 THE COURT: And with a revolver you’ve got a cylinder and the bullets are put into the cylinder; is that right? THE WITNESS: Yes. THE COURT: Either five or six at a time? THE WITNESS: Correct. THE COURT: Okay. And when the handgun is fired that’s a revolv er, what happens to the shell casing? THE WITNESS: The shell casi ngs remain in the cylinder. THE COURT: Okay, if the person is firing an semi-automatic, wha t happens to the shell casings? THE WITNESS: The shell casings are ejected usually from the rig ht port. THE COURT: Okay. The firing mechanism from a revolver as contr asted with a semi-automatic, do you still have to pull the trigger each time it fires? THE WITNESS: Yes, you do. THE COURT: It’s not like a machine gun where you pull the trigg er once and it continually rapid fires, right? THE WITNESS: Correct, that would be an automatic weapon. THE COURT: That’s an automatic weapon. So with a semi-automati c, you have to continue to pull the trigger eachand every time; is that ri ght? THE WITNESS: Yes, t hat’s correct. THE COURT: And the total number of spent shell casings you foun d outside of this automobile on East Warren was how many? THE WITNESS: Ten. THE COURT: Redirect?

Again we cannot find any evidence that this line of questioning aroused suspicion in the mind of the jury concerning a witn ess’ credibility and whether partiality quite possibly could have influenced the jury to the detriment of defendant’s case. The questioning was merely eliciting information about the type of weapon used, the differ ences between an automatic and semi-automatic weapon and a revolver. Essentially, the trial c ourt was asking Officer Andrews what he observed at the scene of the shooting. There is no evi dence from this questioning of Andrews that the trial court was exhibiting bias or prejudice. See Cheeks , 216 Mich App at 480. Rather, the trial court’s quest ioning of Officer Andrews was cl early intended to clarify what Andrews observed, as well as provide some additional informatio n relative to different types of weapons. Accordingly, we assign no error.

Next, defendant argues that the questioning of Officer McEntire was prejudicial, citing the following:

THE COURT: Officer McEntire, where approximately was the defend ant arrested? THE WITNESS: He was arrested on-- if I could refer to my repor t.-7- THE COURT: Yes, yes. THE WITNESS: He was arrested on East Warren approaching Balfour Street in the city of Detroit. THE COURT: East Warren and Balfour? THE WITNESS: Yes, sir. THE COURT: And that would be appr oximately how far away from No ttingham and Warren? THE WITNESS: Maybe a block or s o. They’re right in the general vicinity. He was, I want to say, maybe two a nd a half blocks from the store. THE COURT: Okay. Redirect?

Again, we fail to see how this line of questioning exhibited b ias or prejudice by the trial judge. The exchange between the witness and the trial judge wa s brief and simply intended to clarify the vicinity where defe ndant was arrested. None of the information elicited demonstrates prejudice to defendant. Additionally, the questions posed by the trial judge do not demonstrate any form of prejudice by the trial judge. Accordingly, we assi gn no error.
Next, defendant argues that the questioning of the officer in charge, Officer Nancy Foster, constituted error, citi ng specifically the following ex change:

THE COURT: Officer Foster, whe n you became involved in this inc ident, this investigation, you determined the significance of a house on Mu nich? THE WITNESS: Yes. THE COURT: What was the significance of that? THE WITNESS: After getting the s earch -- the court order approv ed to go through the defendant’s phone, I read his text messages, and he was advising different people to go to that location. THE COURT: All right. Did you ev er seek out a search warrant f or that address on Munich? THE WITNESS: Yes. THE COURT: And was a search con ducted of that house or building ? THE WITNESS: I’m sorry, what st reet are we speaking of again? THE COURT: On Munich, on Munich. THE WITNESS: Yes. I’m sorry, I have to review my file because I know I did a search warrant on either -- THE COURT: Go ahead. THE WITNESS: I apologize. No, th ere was no search warrant for the Munich address. THE COURT: And is there some reason why you never sought a sear ch warrant for that Munich address? THE WITNESS: There was no reason. I actually got a search warr ant for the other location. THE COURT: What other location? THE WITNESS: The Chadsworth loca tion. That would be his locati on that he hung out. THE COURT: Well, didn’t you have some information as to this ad dress on Munich as being somewhat significant?-8- THE WITNESS: Yes. THE COURT: What was th e significance of it? THE WITNESS: That he said he was staying there. Well, he was t here from 6 o’clock P.M. to 1 o’clock A.M. THE COURT: Well, wouldn’t that be important then? THE WITNESS: Well, not me because I didn’t believe that he was actually there during the investigation. THE COURT: Well, subsequently you came to find out that the def endant had filed an alibi witness notice; isn’t that true? THE WITNESS: Yes, that was just recent. THE COURT: Okay, have you made any efforts to try to seek out asearch warrant for that Munich address? THE WITNESS: No, I didn’t. THE COURT: Redirect.

Here, the trial judge was questioning Foster to determine why the police did not search defendant’s alibi witness, DeAngela Kelly’s residence on Munich . Contrary to the assertions of defendant, this line of questioning likely favored defendant be cause it implied that the police should have searched the residence. See Cheeks , 216 Mich App at 480. Accordingly, we assign

no error.
In addition, defendant asserts error when the trial judge ques tioned Bureau of Alcohol, Tobacco, Firearms, and Explosives Agent Stan Brue regarding the parameters of the area covered by a particular cellula r telephone network tower. Duri ng direct examination, the prosecutor questioned Agent Brue regarding whether defendant’s residence was located within the area covered by the tower. T he trial judge sought to clari fy Agent Brue’s testimony regarding the area covered by the tower and sought additional i nformation regarding the boundaries of the tower. See Cheeks , 216 Mich App at 480. The trial judge did not indicate that he was biased in seeking this a dditional information, and he di d not intimidate or argue with the witness. See id . Again, we assign no error to this questioning.

Finally, the trial judge questioned Dr. Aveneesh Gupta of the Wayne County Medical Examiner’s Office regarding Mack’s injuries. The prosecution q uestioned Dr. Gupta during direct examination regarding the location of Mack’s gunshot wounds. The trial judge then questioned Dr. Gupta regarding the entrance wound and the pathw ay that the bullet took through Mack’s body. The trial judge also asked Dr. Gupta whether Mack had any other physical conditions and whether Mack could have recovered from the wound . The trial judge’s questions to Dr. Gupta clarified Dr. Gupta’s testimony regarding Mack’s i njuries and sought additional information regarding Mack’s wounds. See Cheeks , 216 Mich App at 480. There is no indication that the trial judge’s questions were intimidating, argumentative, or prejudicial because the trial judge merely sought information regarding Mac k’s wounds and did not imply that defendant caused the wounds. See id . We assign no error to this line of questioning.

After careful examination of defendant’s assertions regarding the trial judge’s questioning of various witnesses, we conclude that the question ing fell within the parameters of MCR 614(b). Additionally, though we caution the judge that his questioning must be restrained so that his questioning cannot be construed as intimidating, ar gumentative, prejudicial, unfair, or-9- partial, Cheeks

, 216 Mich App at 480, we cannot find that any of the complained of questioning meets any of those listed criteria. Nor can we find that the trial judge’s questions aroused suspicion in the mind of the jury relative to any of the witnes ses’ credibility. In sum, we cannot glean any prejudice or bias emana ting from the trial judge’s qu estioning of various witnesses.

Defendant next argues that the trial judge’s instruction to se veral witnesses to look at the jury while he was questioning them, indicated that his question s were important. However, the trial judge’s instruction to the witnesses served a far less dubious purpose: to ensure that the jurors heard the witnesses’ answers and were able to observe th e witnesses during questioning. The trial judge also instructed Officer Andrews to “[l]ook at t he jury and speak into the microphone.” The fact that the trial judge asked Officer Andre ws to speak into the microphone illustrates that the trial judge sought to ensure that the jury could understand the witnesses. Thus, there is no indication that the trial judge instructed the witn esses to look at the jury whole answering his questions because of the trial judge’s bias. See Cheeks , 216 Mich App at 480.

Additionally, defendant cannot establish prejudice because the trial judge instructed the jury that his questions, commen ts, and rulings are not evidence . The trial judge fur ther instructed the jury that his comments or instructions are not meant to inf luence the jury’s decision and do not express a personal opinion regarding the case. The trial c ourt further explained that the jury should disregard any opinion that it believes that the trial ju dge has regarding the case. A jury is presumed to follow jury instructions. People v McDonald , 303 Mich App 424, 427; 844 NW2d 168 (2013). Therefore, defendant cannot establish that the tri al judge’s questioning affected the outcome of his trial. See Carines , 460 Mich at 763; People v Davis , 216 Mich App 47, 51-53; 549 NW2d 1 (1996) (holding that the trial judge’s questions to the witnesses did not create judicial bias and noting that the trial judge instructed the ju ry that his questions to the witnesses were not evidence). For the reasons stated above, the trial ju dge’s questioning of the six prosecution witnesses did not constitute plain error affecting defendant’s substantial rights. See Carines , 460 Mich at 763.

Defendant next argues that he was denied a fair trial when the prosecutor questioned Officer McEntire regarding the fact that 26 packages of marijua na were found on defendant at the time of his arrest and questioned defendant regarding wheth er he sold and used drugs. Defendant further argues that the evidence was irrelevant and t hat any probative value that the evidence did have was substanti ally outweighed by the danger of unfair prejudice.

“In order to preserve a claim of prosecutorial misconduct for appellate review, a defendant must have timely and specifically objected below, unl ess objection could not have cured the error.” People v Brown , 294 Mich App 377, 382; 811 NW2d 531 (2011). Defendant did not object to the prosecuto r’s conduct in the trial court. Therefore, the issue is unpreserved. See id . This Court reviews an unpreserved claim of prosecutorial mis conduct for plain error affecting the defendant’s substantial rights. Id . As discussed above, the requirements for plain error are: “1) error must have occurred, 2) the error was plain , i.e., clear or obvious, 3) and the plain error affected substantial rights.” Carines , 460 Mich at 763. An error affects the defendant’s substantial rights wh en the error affected the outc ome of the trial. Id

. A prosecutor commits prosecuto rial misconduct if he or she dep rives the defendant of a fair and impartial trial. Brown , 294 Mich App at 382. “Prosecutorial misconduct issues are-10- decided on a case-by-case basis, and the reviewing court must e xamine the record and evaluate a prosecutor’s remarks in context.” Id . at 382-383. “Under MRE 402, relevant evidence is admissible unless excluded by the state or federal constitutionor by a rule of evidence.” People v Schaw , 288 Mich App 231, 236; 791 NW2d 743 (2010). Relevant evidenc e is defined as evidence with “‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’” Id . at 236-237, quoting MRE 401. One exception to this rule, how ever, is that “‘evidence may be excluded if its probative value is substantia lly outweighed by the danger of unfair prejudice.’” Id . at 237, quoting MRE 403. This Court first determines whether the evidence was unfairly prejudicial , and then decides whether the probative value wa s substantially outweighed by the danger of unfair prejudice. People v Cameron , 291 Mich App 599, 611; 806 NW2d 371 (2011). The term “unfair prejudice” means the “tenden cy of the proposed evidence to adversely affect the objecti ng party’s position by injecting considerations extraneous to the merits of the lawsuit, e.g., the jury’s bias, sympathy, anger, or shock.” Id . (internal quotation marks and citations omitted). Additionally, “[u]nfair prejudic e may exist where there is a danger that the evidence will be given undue or preemptive weight by t he jury or where it would be inequitable to allow use of the evidence.” People v Blackston , 481 Mich 451, 462; 751 NW2d 408 (2008).

The testimony related to the 26 packages of marijuana created the danger of unfair prejudice because there was a possibility that the testimony wo uld be given undue weight by the jury. Officer McEntire testif ied that defendant possessed 26 p ackages of marijuana at the time of his arrest. The prosecutor also questioned defendant at length regarding whether he sold drugs to earn money, possessed 26 packages of marijuana at the time of h is arrest, and had a license to sell medical marijuana. However, the testimony was highly rele vant to the prosecution’s case as it was evidence of motive. The prosecution questioned defendan t regarding his connection with Mack:

Q . Because Mr. Mack sold drugs as well, right?

A . I never knew it.

Q . You didn’t know that he sold drugs?

A . No.

Q . You didn’t know that Mr. Mack on occasion would sell drugs i n the same neighborhood that you did?

A . No, I don’t pay attention to who sells drugs in my neighborh ood, ma’am.

Q . You don’t pay attention to the opposing drug dealers that wo rk in the same neighborhood?

A . No, ma’am. I’m not in competition, so I don’t pay attention to that.-11- Q . You would agree with me that the sale of drugs is an inheren tly dangerous occupation, right?

A . No, ma’am.

Q . Folks don’t get killed ove r drugs everyday [sic]?

A . No, ma’am.

This line of questioning demonstrates that the prosecution’s pu rpose in questioning Officer McEntire and defendant regardi ng defendant’s marijuana possessi on and sales was to establish a motive for the shooting. The tes timony was highly relevant bec ause it connected defendant with the victims and tended to make th e fact that defendant committe d the shooting more likely than it would have been withou t the testimony. See Schaw , 288 Mich App at 236-237.

In addition, the probative value of the evidence was not subst antially outweighed by the danger of unfair prejudice. See Schaw , 288 Mich App at 237. Again, the testimony was highly relevant because it connected defendant with the victims and pr ovided evidence of defendant’s motive to shoot at Mack. See id . at 236-237. Furthermore, although there was a danger that th e jury would view defendant negatively because he was a drug user and seller, the danger was not so great that it would distract the jury from considering wheth er defendant committed the charged offenses. See Blackston , 481 Mich at 462; Cameron , 291 Mich App at 612. Therefore, the prosecutor did not commit prosecutorial misconduct in quest ioning Officer McEntire regarding the fact that defendant had 26 packages of marijuana in his possession at the time of his arrest and in questioning defe ndant regarding whether he us ed and sold marijuana.

Even if this Court were to find prosecutorial misconduct in th e eliciting of this information, defendant fails to show how the error affected the outcome of the trial. The trial court instructed the jury regarding the elements of the charged offenses, which did not include drug use or sale. The jury is presumed to have followed the jury instructions. See McDonald

, 303 Mich App at 437. Therefore, the jury is presumed to have n ot considered defendant’s drug use or sale in determining whether he was guilty of the charged offenses. See id . Additionally, there was substantial evidence presented at trial establishing that defendant committed the charged offenses. Parks identified defendant as the shooter. Faris Matti, an employee of the K & G Market, also identified defendant as the man who came into the K & G Market and then committed the shooting. There was a recording of a telephone c onversation presented at trial, in which defendant stated that he ha d “wacked out” Mack. In addit ion, a videotape recording from the scene of the incident, which depicted the shooter and the s hooting, was played at trial. Furthermore, defendant does not e xplain how he was prejudiced b y the prosecutor’s actions. See People v Smart , 304 Mich App 244, 251; 850 NW2d 579 (2014) (“An appellant may also not merely announce a position and leav e it to this Court to ration alize the basis for the claim, or elaborate the argument.”) There fore, defendant was not prejudi ced by the prosecutor’s actions. See Carines , 460 Mich at 763.

Defendant next argues that defense counsel was ineffective for failing to object to the trial judge’s questioning of the six prosecution witnesses and the prosecutor’s questions regarding defendant’s marij uana possession and sales.-12- A defendant preserves the issu e of ineffective assistance of c ounsel by bringing a motion for a new trial or a Ginther 2 hearing in the trial court. See People v Payne , 285 Mich App 181, 188; 774 NW2d 714 (2009). Defendant did not bring a motion for a new trial or a Ginther hearing in the trial court. T herefore, the issue is unpreserve d. See id

. This Court reviews an unpreserve d claim of ineffective assista nce of counsel for “mistakes apparent on the record.” Brown , 294 Mich App at 387. A claim of ineffective assistance of counsel involve s issues of law and fact. Id . “This Court reviews a trial court’s findings of fact, if any, for clear error, and reviews de novo the ultimate constitutional issue arising from an ineffective a ssistance of counsel claim.” Id

. To prevail on a claim of ineffective assistance of counsel, de fendant must show that (1) counsel’s perform ance fell below an objective standard of reasonableness under prevailing professional norms, (2) there i s a reasonable probability that, but for counsel’s error, the result of the pr oceedings would have been different, and (3) the resultant proceedings were fundamen tally unfair or unreliable. [ Brown , 294 Mich App at 387-388.]

There is a strong presumption that defense counsel’s conduct co nstituted sound trial strategy. Id

. at 388. “Failing to advance a meritless argument or raise a fu tile objection does not constitute ineffective assistance of counsel.” People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010).

As discussed above, the trial court did not err in questioning six of the prosecution’s witnesses because the trial court merely elicited additional re levant information and clarified the witnesses’ testimony. In addition, as discussed above, the pro secutor did not commit prosecutorial misconduct in questioning Officer McEntire regard ing the fact that defendant possessed 26 packages of marijuana at the time of his arrest an d in questioning defendant regarding whether he used and sold marijuana, because the proba tive value of the evidence was not outweighed by the danger of unfair prejudice. Therefore, d efense counsel did not render ineffective assistance because an objection to the trial judge’ s conduct or the prosecutor’s conduct would have been meritless. See Ericksen , 288 Mich App at 201.

Affirmed.

/s/ Pat M. Donofrio /s/ Stephen L. Borrello /s/ Cynthia Diane Stephens

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