People of Michigan v. Sammie Lamont Davis

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

May 15, 2026

Plaintiff-Appellee, 9:36 AM

v No. 366132

Berrien Circuit Court

SAMMIE LAMONT DAVIS, LC No. 2019-004225-FH

Defendant-Appellant.

Before: MURRAY, P.J., and REDFORD and RICK, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of driving while license suspended,

MCL 257.904(1), and failure to stop at the scene of an accident resulting in serious impairment or

death, MCL 257.617(2).1 Defendant was sentenced, as a fourth-offense habitual offender, MCL

769.12, to eight days in jail for the driving while license suspended conviction and 3 to 40 years’

imprisonment for the failure to stop conviction. We affirm.

I. BACKGROUND

This case arises out of defendant’s failure to stop at the scene of an accident on Red Arrow

Highway, a four-lane highway, near Stevensville, Michigan, at around 2:30 p.m. on November 20,

2019. While driving his sports utility vehicle (SUV) northbound on Red Arrow, defendant fell

asleep and struck a bicyclist, Joel Crider, Jr., who was also traveling northbound. As a result of

injuries sustained in the accident, Crider died in a medical rehabilitation center more than two

months later on February 2, 2020.2 Eyewitness testimony indicated that defendant did not stop at

1

The jury found defendant not guilty of reckless driving causing death, MCL 257.626(4), and

reckless driving causing serious impairment, MCL 257.626(3).

2

Crider also suffered from preexisting health issues that were determined to be contributory factors

in his eventual death more than two months after the accident. The cause of death is not at issue

in this appeal. Defendant’s brief on appeal acknowledges that Crider “died of his injuries

[sustained in the accident] and from other preexisting health issues.”

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the accident scene but stopped about 200 or 300 feet away and then continued driving. Police

arrested defendant later that day. There was damage to the front passenger side of his SUV. He

admitted being in the accident but said that he thought he only hit a trashcan.

Defendant testified at trial that he thought he hit a trashcan or mailbox and did not realize

he hit a person. He had been sick the previous two days and staying at the Blue Chip Casino in

Michigan City, Indiana. At the time of the accident, he was traveling back to the Benton Harbor

area to go to a hospital. He took either Dayquil or Nyquil that morning but could not remember

which he took. According to defendant, he “dozed off” on I-94 and hit the rumble strips a few

times. He then stopped at a gas station near the Sawyer exit to take “a quick nap.” After resting

at the gas station for 5 or 10 minutes, he drove on Red Arrow and was “dozing or falling asleep”

when the accident occurred. Defendant did not reveal the gas station stop to the police or the

prosecutor before trial. After hearing defendant’s trial testimony, the police learned that the two

gas stations at the Sawyer exit no longer had any surveillance video for the date of the accident,

which was more than three years before the trial.

II. DISCUSSION

A. CHARGING DEFECT

Defendant argues that his failure to stop conviction must be vacated because there was no

allegation in the charging documents that he knew he was involved in an accident with an

individual or another vehicle. We disagree.

Defendant did not preserve his claim that the charging document was deficient. “For an

issue to be preserved for appellate review, it must be raised, addressed, and decided by the lower

court.” People v Danto, 294 Mich App 596, 605; 822 NW2d 596 (2011) (citation and quotation

marks omitted). This general rule “is a necessary corollary of our adversary system in which issues

are framed by the litigants and presented to the court” in a timely fashion such that the court and

the adverse party have the opportunity to respond. Napier v Jacobs, 429 Mich 222, 227-229; 414

NW2d 862 (1987), quoting 3 LaFave & Isreal, Criminal Procedure, § 26.5(c), pp 251-252.

Defense counsel’s argument to the jury that a not guilty verdict should be entered because

defendant did not know the accident involved a person is not akin to an objection to the adequacy

of the charging document. Raising an argument in an unrelated context during trial is not sufficient

to preserve it for appellate review. Danto, 294 Mich App at 605.

Because the issue is unpreserved, this Court’s “review is limited to determining whether

defendant has demonstrated a plain error that affected substantial rights.” People v Noble, 238

Mich App 647, 658; 608 NW2d 123 (1999). Under the plain-error standard, a defendant must

show that an error occurred, it was clear or obvious, and it affected the outcome of the proceedings.

People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Reversal is required only if the

defendant is innocent or the error seriously affected the fairness, integrity, or public reputation of

the proceedings. Id. at 763-764.

“The Due Process Clause of the Fourteenth Amendment mandates that a state’s method for

charging a crime give a defendant fair notice of the charge against the defendant, to permit the

defendant to adequately prepare a defense.” People v Chapo, 283 Mich App 360, 364; 770 NW2d

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68 (2009). “A complaint is a written accusation that a named or described person has committed

a specified criminal offense. The complaint must include the substance of the accusation against

the accused and the name and statutory citation of the offense.” MCR 6.101(A). Similarly, an

“information must set forth the substance of the accusation against the defendant and the name,

statutory citation, and penalty of the offense allegedly committed.” MCR 6.112(A).

In this case, the charging information includes that which is required by MCR 6.101(A)

and MCR 6.112(A). Specifically, Count 2 of both the original complaint3 filed on November 21,

2019, and the January 28, 2020 felony information charge defendant with violating MCL 257.617.

The original complaint alleged that defendant

did, being the driver of an automobile, who knew or had reason to know that he/she

had been involved in an accident upon Red Arrow Highway, property open to travel

by the public, did fail to immediately stop the vehicle at the scene of the accident

and remain there until he or she had complied with the requirements of MCL

257.619. [sic] and the accident resulted in injury to Joel Crider, Jr; contrary MCL

257.617a . . . .

This is substantially similar to Count 2 of the January 28, 2020 felony information, which

defendant quotes in his brief, as follows:

[Defendant], being the driver of an automobile, who knew or had reason to believe

that he/she had been involved in an accident upon Red Arrow Highway, property

open to travel by the public, [failed to] stop the vehicle at the scene of the accident

and remain there until he or she had complied with the requirements of MCL

257.619; and the accident resulted in serious impairment of a body function or death

of Joel Crider, Jr; contrary to MCL 257.617(2).

Two amended felony informations were later filed but are not relevant to this issue. These

charging documents provide sufficient substance of the crime for which he was charged and the

statutory citation. Defendant was convicted of violating MCL 257.617, which reads as follows:

(1) The driver of a vehicle who knows or who has reason to believe that he

or she has been involved in an accident upon public or private property that is open

to travel by the public shall immediately stop his or her vehicle at the scene of the

accident and shall remain there until the requirements of section 619 are fulfilled

or immediately report the accident to the nearest or most convenient police agency

or officer to fulfill the requirements of section 619(a) and (b) if there is a reasonable

and honest belief that remaining at the scene will result in further harm. The stop

shall be made without obstructing traffic more than is necessary.

(2) Except as provided in subsection (3), if the individual violates

subsection (1) and the accident results in serious impairment of a body function or

3

For readability, we have declined to insert “[sic]” after minor typographical errors.

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death, the individual is guilty of a felony punishable by imprisonment for not more

than 5 years or by a fine of not more than $5,000.00, or both.

(3) If the individual violates subsection (1) following an accident caused by

that individual and the accident results in the death of another individual, the

individual is guilty of a felony punishable by imprisonment for not more than 15

years or a fine of not more than $10,000.00, or both.

This Court has described MCL 257.617 as “criminaliz[ing] leaving the scene after being involved

in an accident” and, with respect to MCL 257.617(2) and MCL 257.617(3), leaving the scene after

being involved in an accident that results in serious impairment of a body function or death. People

v Dumback, 330 Mich App 631, 638; 950 NW2d 493 (2019). The Court of Appeals wrote:

To support conviction under [MCL 257.617(1)], the prosecution must

establish that the driver of a vehicle was involved in an accident, knew or had reason

to know that the accident occurred and did not stop or report it. To support a

conviction under Subsection (3), the prosecution must again establish that the driver

of a vehicle was involved in an accident, knew or had reason to know that the

accident occurred, and did not stop or report the accident, but the prosecution must

also prove that the driver caused the accident and that another person died as a result

of the accident….These additional requirements must be presented to and found by

the jury. [Dumback, 330 Mich App at 642.]

Contrary to defendant’s claim on appeal, knowledge or reason to believe that defendant had been

involved in an accident with an individual or with another vehicle is not found in the language of

MCL 257.617 or in this Court’s previous analysis of it. Such knowledge is a requirement to show

compliance with MCL 257.619, which reads as follows:

The driver of a vehicle who knows or who has reason to believe that he or

she has been involved in an accident with an individual or with another vehicle that

is operated or attended by another individual shall do all of the following:

(a) Give his or her name and address, and the registration number of the

vehicle he or she is operating, including the name and address of the owner, to a

police officer, the individual struck, or the driver or occupants of the vehicle with

which he or she has collided.

(b) Exhibit his or her operator’s or chauffeur’s license to a police officer,

individual struck, or the driver or occupants of the vehicle with which he or she has

collided.

(c) Render to any individual injured in the accident reasonable assistance in

securing medical aid or arrange for or provide transportation to any injured

individual.

However, MCL 257.619 is incorporated into MCL 257.617 only to the extent that compliance with

MCL 257.619 is one way to avoid being found in violation of MCL 257.617.

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MCL 257.617(1) refers to a driver “who knows or who has reason to believe that he or she

has been involved in an accident . . . .” MCL 257.617(2), under which defendant was charged and

convicted, applies if an individual violated MCL 257.617(1) and the accident resulted in serious

impairment or death. The knowledge required for conviction under any subsection of MCL

257.617 is knowledge or reason to believe that a person was involved in an accident—nothing

further.

If the driver knows or as has reason to believe that the accident was with “an individual”

or another vehicle, the driver may avoid violating MCL 257.617 by remaining at the scene long

enough to provide the required information or assistance described in MCL 257.619. MCL

257.617(1). However, a driver could also avoid violating MCL 257.617 by simply stopping at the

scene of the accident or reporting it. Compliance with MCL 257.619 is not an element of MCL

257.617 under either the plain language of the statute or this Court’s prior analysis of it. Dumback,

330 Mich App at 642. As explained above, to support a conviction under MCL 257.617(2),

defendant must have been a driver of a vehicle who was involved in an accident, who “knew or

had reason to know that the accident occurred,” who did not stop or report it, and which resulted

in death or serious impairment of a body function. MCL 257.617(2); Dumback, 330 Mich App at

642.4 The only knowledge requirement set forth in MCL 257.617 is knowledge or reason to

believe an accident occurred. The Court respectfully declines defendant’s invitation to incorporate

the knowledge requirement in MCL 257.619 into MCL 257.617 for purposes of this appeal.

As quoted earlier, the charging documents in this case alleged that defendant knew or had

reason to believe that he had been involved in an accident. Defendant was afforded fair notice of

the charge. There is no claim that he complied with the requirements of MCL 257.619. The

substance of the accusation was adequately set forth in the charging documents.

B. INSTRUCTIONAL ERROR; INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that the trial court failed to properly instruct the jury on the knowledge

element of the failure to stop charge and that defense counsel was ineffective for failing to object.

We disagree.

“To preserve an instructional error for review, a defendant must object to the instruction

before the jury deliberates.” People v Gonzalez, 256 Mich App 212, 225; 663 NW2d 499 (2003).

4

Defendant suggests that caselaw from the 1940s supports his contention that he was required to

know not merely that he was involved in an accident but that he hit an individual. But defendant

acknowledges that this older caselaw concerned a prior version of the statute. Defendant fails to

discuss the 1940s cases individually or in depth or to explain how they apply to the current version

of the statute. “An appellant may not merely announce his position and leave it to this Court to

discover and rationalize the basis for his claims, nor may he give only cursory treatment with little

or no citation of supporting authority.” People v Kelly, 231 Mich App 627, 640-641; 588 NW2d

480 (1998). Defendant has therefore not properly presented this aspect of his argument. Id. We

rely on the more recent caselaw setting forth the elements under the current statute.

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Defendant did not object to the instruction on the knowledge element of the failure to stop charge.

The instructional issue is therefore unpreserved.

To preserve a claim of ineffective assistance of counsel, a defendant must raise the issue

in a motion for a new trial or a Ginther5 evidentiary hearing filed in the trial court, People v Heft,

299 Mich App 69, 80; 829 NW2d 266 (2012), or in a motion to remand for a Ginther hearing filed

in this Court, People v Abcumby-Blair, 335 Mich App 210, 227; 966 NW2d 437 (2020). Defendant

did not raise his ineffective-assistance claim in any such motions. That issue is thus unpreserved.

Because the instructional issue is unpreserved, it is reviewed under the plain-error standard.

Gonzalez, 256 Mich App at 225.

Whether a defendant was denied the effective assistance of counsel presents a mixed

question of fact and constitutional law. Heft, 299 Mich App at 80. Findings of fact are reviewed

for clear error, and questions of law are reviewed de novo. Id. Because no Ginther hearing was

held, this Court’s review is based on the existing record. Abcumby-Blair, 335 Mich App at 227.

A criminal defendant has a right to a properly instructed jury. People v Ogilvie, 341 Mich

App 28, 34; 989 NW2d 250 (2022). The jury instruction must include all elements of the crimes

charged and may not exclude material issues or defenses that are supported by the evidence. Id.

The trial court instructed the jury as follows regarding the charge of failure to stop at the

scene of an accident resulting in serious impairment or death:

The Defendant is charged with the crime of failing to stop after an accident that

resulted in serious impairment of—of a body function or death. To prove this

charge, the prosecutor must prove each of the following elements beyond a

reasonable doubt:

First, that the Defendant was the driver of a motor vehicle. Second, that the

motor vehicle driven by the Defendant was involved in an accident on public or

private property as open—that is open to travel by the public.

Third, that the Defendant knew or had reason to know he had been in [sic]

involved in an accident. Fourth, that the accident resulted in serious impairment of

a body function. . . .[6]

Fifth, that the Defendant failed to immediately stop his motor vehicle at the

scene of the accident in order to render assistance and give information required by

law. The requirement that the driver immediately stop means that the driver must

stop and park the car as soon as is practicable and reasonable under the

circumstances and without obstructing traffic more than is necessary.

5

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

6

The court then provided a list of what may constitute serious impairment of a body function.

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Defendant argues that the trial court did not properly instruct the jury regarding the

knowledge element. He says that the jury should have been instructed that, to be found guilty, he

must have known or had reason to know that the accident involved a person. In sum, defendant

makes the same basic argument concerning the knowledge element that he made earlier with

respect to his assertion of a charging defect. But as explained already, defendant’s argument lacks

merit. The trial court properly instructed the jury on the knowledge element by stating that the

prosecutor was required to prove beyond a reasonable doubt that defendant knew or had reason to

know that he had been involved in an accident. See Dumback, 330 Mich App at 642. Defendant

has therefore failed to establish that the trial court committed an instructional error.

Defendant’s ineffective-assistance argument likewise fails. “To prove that his defense

counsel was not effective, the defendant must show that (1) defense counsel’s performance fell

below an objective standard of reasonableness and (2) there is a reasonable probability that

counsel’s deficient performance prejudiced the defendant.” People v Lane, 308 Mich App 38, 68;

862 NW2d 446 (2014). “Effective assistance of counsel is presumed, and the defendant bears a

heavy burden of proving otherwise.” People v Head, 323 Mich App 526, 539; 917 NW2d 752

(2018) (quotation marks, brackets, and citation omitted). “In examining whether defense counsel’s

performance fell below an objective standard of reasonableness, a defendant must overcome the

strong presumption that counsel’s performance was born from a sound trial strategy.” People v

Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). To establish prejudice, a defendant must

demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018)

(quotation marks and citation omitted). A “defendant has the burden of establishing the factual

predicate for his claim of ineffective assistance of counsel.” People v Hoag, 460 Mich 1, 6; 594

NW2d 57 (1999).

As explained, the trial court properly instructed the jury on the knowledge element.

Defense counsel was not ineffective for failing to make a futile objection to the jury instruction.

People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).

C. EVIDENTIARY ERROR; ARREST WARRANTS

Defendant argues that the trial court erred in admitting evidence of warrants for defendant’s

arrest that were outstanding at the time of the accident. He argues that the evidence should have

been excluded due to lack of pretrial notice and because it was inadmissible. We disagree.

A trial court’s decision whether to admit evidence is reviewed for an abuse of discretion.

People v Duncan, 494 Mich 713, 722; 835 NW2d 399 (2013). An abuse of discretion occurs when

the trial court’s decision falls outside the range of reasonable and principled outcomes. Id. at 722-

723. Any preliminary questions of law are reviewed de novo. Id. at 723.

“Before being allowed to introduce evidence of other acts under MRE 404(b), the

prosecution must provide timely notice to the defense . . . .” People v Felton, 326 Mich App 412,

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420; 928 NW2d 307 (2018). A lack of timely pretrial notice may be excused for good cause

shown. Id. At the time of trial in this case,7 MRE 404(b)(2) provided, in relevant part:

The prosecution in a criminal case shall provide written notice at least 14

days in advance of trial, or orally on the record later if the court excuses pretrial

notice on good cause shown, of the general nature of any such evidence it intends

to introduce at trial and the rationale, whether or not mentioned in subparagraph

(b)(1), for admitting the evidence.

The purpose of pretrial notice is “to promote reliable decision making, to prevent unfair surprise,

and to offer the defense the opportunity to marshal arguments regarding both relevancy and unfair

prejudice.” Felton, 326 Mich App at 421 (quotation marks, brackets, and citation omitted).

The prosecution did not provide pretrial notice of the intent to introduce evidence of

defendant’s arrest warrants. Defense counsel’s opening statement offered an innocent explanation

for why defendant left the accident scene, i.e., he thought he hit a trashcan. Outside the presence

of the jury, the prosecutor stated that, in light of defense counsel’s opening statement, the

prosecutor wished to introduce evidence of defendant’s arrest warrants. The prosecutor argued

that, if the defense was “going to propose that [defendant] left for innocent purposes,” then the

prosecution “should be able to show the jury that he had a reason to flee, and one of those reasons

to flee was that he did have warrants out.” The trial court ruled:

Yeah, I do think that the door’s been opened as to why he left the scene.

And the Defendant’s explanation that he thought he had just struck a waste

container, trashcan, along the side of the road and left, the People are entitled to

present evidence of ulterior motivations on the part of the Defendant to flee the

scene. I don’t want [the prosecutor] to get into the nature of the warrants, but you

can obviously ask, [defense counsel].

The trial court’s ruling was not erroneous. Good cause existed for the lack of pretrial

notice. The prosecutor decided to seek introduction of the warrants as a result of defense counsel’s

opening statement offering an innocent explanation for defendant’s leaving the accident scene, i.e.,

that he thought he hit a trashcan. This defense theory opened the door to evidence suggesting an

ulterior motivation for defendant to flee the scene, including the fact that he had outstanding arrest

warrants. The defense was not unfairly surprised. Defendant admitted during his police interview

that he was aware of one of the warrants. The video of the police interview had been provided to

the defense, and defense counsel stipulated that the video contained defendant’s admission that he

was aware of one of the warrants. Defendant also admitted during his trial testimony that he knew

at the time of the accident that there was a warrant out for his arrest.

But even if there was not good cause to excuse the lack of pretrial notice, defendant has

not demonstrated that the alleged error requires reversal. A preserved evidentiary error “is

7

The Michigan Rules of Evidence were substantially amended on September 20, 2023, effective

January 1, 2024. See 512 Mich lxxxvii (2023). We rely on the versions of the rules in effect at

the time of trial.

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presumed not to be a ground for reversal unless it affirmatively appears that, more probably than

not, it was outcome determinative—i.e., that it undermined the reliability of the verdict.” People

v Jackson, 498 Mich 246, 257; 869 NW2d 253 (2015) (quotation marks and citation omitted). As

will be explained, the evidence was substantively admissible. Defendant has failed to demonstrate

how he would have conducted the trial or presented his defense differently if he had received

timely pretrial notice. See id. at 278-279 (an error related to the lack of proper pretrial notice under

MRE 404(b)(2) did not require reversal when the evidence was substantively admissible and the

defendant failed to demonstrate how he would have approached the trial or presented his defense

differently if he had received proper pretrial notice).

We now turn to the substantive admissibility of the evidence. At the time of trial, MRE

404(b)(1) provided:

Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith. It may,

however, be admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or

absence of mistake or accident when the same is material, whether such other

crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the

conduct at issue in the case.

Other-acts evidence is admissible if it is offered for a proper purpose under MRE 404(b), the

evidence is relevant, and the probative value of the evidence is not substantially outweighed by

unfair prejudice. People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993), amended 445

Mich 1205 (1994). Upon request, a limiting instruction may be read to the jury. Id. MRE 404(b)

is a rule of inclusion rather than exclusion. VanderVliet, 444 Mich at 64-65. “Relevant other acts

evidence does not violate [MRE] 404(b) unless it is offered solely to show the criminal propensity

of an individual to establish that he acted in conformity therewith.” VanderVliet, 444 Mich at 65.

The prosecutor offered the evidence regarding outstanding warrants for a proper purpose

under MRE 404(b). The purpose was to show defendant’s motive for leaving the accident scene,

in light of the defense suggestion that defendant left the accident scene for an innocent reason.

The evidence was relevant. At the time of trial, MRE 401 provided, “ ‘Relevant evidence’

means evidence having 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.” “Evidence relevant to a noncharacter purpose is admissible under MRE 404(b) even if

it also reflects on a defendant’s character.” People v Mardlin, 487 Mich 609, 615; 790 NW2d 607

(2010). The evidence regarding the warrants tended to make it more probable that defendant had

a motive to flee the accident scene other than the innocent reason he suggested.

“Any undue prejudice that arises because the evidence also unavoidably reflects the

defendant’s character is then considered under the MRE 403 balancing test . . . .” Mardlin, 487

Mich at 616. At the time of trial, MRE 403 provided, “Although relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time,

or needless presentation of cumulative evidence.” The trial court sought to limit any prejudicial

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effect by precluding evidence regarding the nature of the warrants. Defendant has not shown that

unfair prejudice substantially outweighed the probative value of the evidence.

Finally, the trial court read a limiting instruction to the jury. “A limiting instruction

generally suffices to enable the jury to compartmentalize evidence and consider it only for its

proper purpose.” Mardlin, 487 Mich at 629 (quotation marks, brackets, ellipsis, and citation

omitted). Accordingly, the trial court did not abuse its discretion by admitting the evidence

regarding the warrants.

D. EVIDENTIARY ERROR; GAMBLING HABITS

Defendant argues that the trial court erred in allowing evidence regarding defendant’s

gambling. He views the evidence as irrelevant and highly prejudicial. We disagree.

A trial court’s decision whether to admit evidence is reviewed for an abuse of discretion.

Duncan, 494 Mich at 722.

On direct examination by his counsel, defendant testified that, in the early morning hours

of the date of the incident, he was at the Blue Chip Casino. He stated that he went to the casino

because he “had been sick for about a day or two.” In the afternoon, he left the casino to go back

to Benton Harbor so he could go to the hospital for medical treatment. Defendant testified that,

on his drive back, he dozed off a few times and then stopped at a gas station to take “a quick nap”

before getting back on the road.

On cross-examination by the prosecutor, defendant testified that he had been at the casino

for a couple days before this incident. He decided to get a room at the casino because he was sick.

The prosecutor asked defendant why he did not stay home if he was sick, and defendant responded,

“Because I didn’t want to stay home because I was really sick, that’s the reason why I left.” The

prosecutor asked if defendant was gambling at the casino. Defense counsel objected on the ground

of lack of relevance, but the trial court overruled the objection because defendant “just said why

he went to the casino, so now [the prosecutor] can inquire as to what he did while he was there.”

Defendant answered, “I did play.” He “played” until he got a message from his daughter’s mother

that he should go to the hospital. He stated that he left the casino around noon that day but could

not remember the exact time.

At the time of trial, MRE 402 provided, “All relevant evidence is admissible, except as

otherwise provided by the Constitution of the United States, the Constitution of the State of

Michigan, these rules, or other rules adopted by the Supreme Court. Evidence which is not relevant

is not admissible.” At the time of trial, MRE 401 provided, “ ‘Relevant evidence’ means evidence

having 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.” “A material

fact need not be an element of a crime or cause of action or defense but it must, at least, be in issue

in the sense that it is within the range of litigated matters in controversy.” People v Zitka, 335

Mich App 324, 333-334; 966 NW2d 786 (2020) (quotation marks, brackets, and citation omitted).

At the time of trial, MRE 403 provided, “Although relevant, evidence may be excluded if

its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the

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issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” “All relevant evidence is prejudicial; only unfairly

prejudicial evidence may be excluded.” Danto, 294 Mich App at 600. “Unfair prejudice exists

when there is a tendency that evidence with little probative value will be given too much weight

by the jury.” Id. (quotation marks and citation omitted). “Unfair prejudice may arise where

considerations extraneous to the merits of the case, such as jury bias, sympathy, anger, or shock,

are injected.” Id. “[T]he prosecution does not have to use the least prejudicial evidence to make

out its case.” People v Cameron, 291 Mich App 599, 611; 806 NW2d 371 (2011).

Defendant testified on direct examination that he was at the casino on the date of the

accident. He also testified that, after leaving the casino and before the accident, he stopped at a

gas station to take “a quick nap.” Defendant had not previously disclosed to the prosecution that

he had stopped at a gas station to take a nap. Defendant’s assertion that he stopped to take a nap

was pertinent to the charge of reckless driving (of which he was ultimately acquitted). The timeline

of events that day, including how long defendant was gambling and when he left the casino, was

relevant in evaluating defendant’s testimony that he stopped at a gas station to take a nap before

the accident occurred. Defendant has not shown that the gambling testimony was unfairly

prejudicial in that it injected considerations extraneous to the merits of the case or would be given

too much weight by the jury. At worst, the prosecutor’s cross-examination revealed that defendant

actually gambled at the casino, but this was clearly implied by defendant’s own testimony on direct

examination. Any unfair prejudice was undoubtedly limited because the jury was already aware

that he was at a casino before the accident, and the obvious reason for being at a casino is to

gamble. The trial court thus did not err in admitting the testimony at issue.8

E. LAY OPINION TESTIMONY REGARDING ACCIDENT

Defendant argues that the trial court erred by admitting lay opinion testimony of Lincoln

Charter Township Police Officer Curt Wolff and Lincoln Charter Township Police Sergeant Ralph

Bansen. We disagree.

“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). Defendant objected to Officer Wolff’s

testimony on the ground asserted on appeal but did not object to Sergeant Bansen’s testimony on

8

Defendant also notes that the prosecutor referred to gambling during her opening statement and

closing argument. But defendant does not present any argument or cite any caselaw regarding

prosecutorial misconduct, also known as prosecutorial error. Nor does he address preservation or

the standard of review for such a claim. “An appellant may not merely announce his position and

leave it to this Court to discover and rationalize the basis for his claims, nor may he give only

cursory treatment with little or no citation of supporting authority.” Kelly, 231 Mich App at 640-

641. Defendant has therefore not properly presented any prosecutorial-misconduct argument. Id.

If he means to suggest that the prosecutor’s statements render the alleged evidentiary error harmful,

defendant’s argument on this point need not be addressed because no evidentiary error occurred.

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this ground. The issue is thus preserved for Officer Wolff’s testimony but not for Sergeant

Bansen’s testimony.

Regarding the preserved aspect of the issue, a trial court’s decision whether to admit

evidence is reviewed for an abuse of discretion. Duncan, 494 Mich at 722.

With respect to the unpreserved aspect of the issue, an unpreserved evidentiary issue is

reviewed under the plain-error standard. People v Thorpe, 504 Mich 230, 252; 934 NW2d 693

(2019).

At the time of trial, MRE 701 provided as follows regarding lay opinion testimony:

If the witness is not testifying as an expert, the witness’ testimony in the

form of opinions or inferences is limited to those opinions or inferences which are

(a) rationally based on the perception of the witness and (b) helpful to a clear

understanding of the witness’ testimony or the determination of a fact in issue.

Lay “opinions do not involve highly specialized knowledge, and are largely based on common

sense.” People v McLaughlin, 258 Mich App 635, 658; 672 NW2d 860 (2003). The weight to be

accorded to a lay witness’s opinion testimony is for the trier of fact to decide. People v Hannum,

362 Mich 660, 665; 107 NW2d 894 (1961). Expert testimony is governed by MRE 702, which, at

the time of trial, provided:

If the court determines that scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine a

fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education may testify thereto in the form of an opinion or otherwise if

(1) the testimony is based on sufficient facts or data, (2) the testimony is the product

of reliable principles and methods, and (3) the witness has applied the principles

and methods reliably to the facts of the case.

In Richardson v Ryder Truck Rental, Inc, 213 Mich App 447, 454-456; 540 NW2d 696

(1995), this Court concluded that testimony by two police officers regarding an accident qualified

as lay opinion testimony rather than expert testimony. One officer testified concerning the basis

of his observations of skid marks at the accident scene, and the other officer testified concerning

the basis of his observations of photographs of the skid marks. Id. at 455. “The officers testified

that they believed that [a certain defendant’s] truck encroached on the right eastbound lane in

which [the] plaintiffs’ vehicle was traveling.” Id. This Court held:

The opinions were rationally based on the officers’ perceptions based on

examining photographs and the scene. After examining the evidence, the officers

gave their opinion that the skid marks led them to believe that a vehicle traveling

in the left eastbound lane encroached upon the right eastbound lane. [The

defendant] himself testified that the skid marks came from his truck. The officers’

opinions were helpful to a clear understanding regarding whether [the defendant’s]

truck encroached on the right eastbound lane. Because these opinions were reliable

conclusions that could be made by people in general on the basis of the evidence of

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the skid marks and were not overly dependent on scientific, technical, or specialized

knowledge, we find that the trial court’s decision to admit their testimony was not

an abuse of discretion. Mitchell v Steward Oldford & Sons, Inc, 163 Mich App

622, 628-630; 415 NW2d 224 (1987). [Richardson, 213 Mich App at 455-456.]

In the present case, Officer Wolff testified regarding his observations at the accident scene.

He saw Crider, the bicycle, and debris at the accident scene. After Crider was removed from the

accident scene, Officer Wolff took pictures and video with his body-worn camera. A portion of

the video footage in which Officer Wolff walked around the scene and narrated what he saw was

admitted into evidence and played for the jury. Officer Wolff testified that there were no skid

marks to indicate braking or an attempt to avoid a crash. There were tire tracks in the dirt on the

side of the road. He did not observe any garbage cans in the immediate vicinity. The back tire of

Crider’s bicycle was destroyed.

When asked to describe what his observations indicated to him about the accident, Officer

Wolff testified that there was “a vehicle crash involving a bicycle” and that “[t]he condition of

[the] bicycle was the rear tire being, in effect, collapsed, and little, if any, damage observable by

myself on the front tire, would mean that it was impacted at the rear.” He discussed the debris

field and how it indicated direction and impact. Officer Wolff continued:

That gives you, again, a general idea of where that impact may have

occurred. You look for, like, skid marks and things of that nature and—and some

say, like, gouge marks. There were none of those that I could use. You also look

at where the victim was lying. Judging from his injuries and the time that I arrived,

I don’t think he had been moved.

The witness statements, you take into consideration—and I had interviewed

two witnesses, their observations of the scene, what happens—or what they saw

happen, things of this nature, and in that I would estimate that there was an accident

where a gentleman was riding northbound on a bicycle. It was struck, I would say

in my opinion, that bicycle, it was, maybe, just off the white line, on the right-hand

side of the road, again, northbound. That’s about what I observed.

In sum, Officer Wolff testified regarding his observations at the accident scene. He then

offered a general idea of where and how the accident occurred on the basis of his observations.

His testimony was not overly technical or scientific. The court properly admitted his lay opinion.

The portion of Sergeant Bansen’s testimony cited by defendant did not involve a lay

opinion. Sergeant Bansen merely testified about what he observed at the accident scene. He

testified that he did not see any garbage cans, that it was a clear day with good light, and the nearby

trees were not full of leaves. The trial court did not err in admitting this testimony.

Finally, it is notable that the trial court instructed the jury that testimony from police

officers was to be judged by the same standard used to evaluate any other witness’s testimony.

“[J]urors are presumed to follow their instructions.” People v Unger, 278 Mich App 210, 235;

749 NW2d 272 (2008).

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F. SHIFTING OF BURDEN OF PROOF

Defendant argues that his constitutional right to due process was violated because the

prosecutor shifted the burden of proof onto defendant. Defendant reasons that the prosecutor was

permitted to use defendant’s silence about potentially exculpatory evidence, i.e., regarding his

alleged stop at a gas station to take a nap, against him. Defendant’s argument lacks merit.

This Court reviews de novo constitutional issues such as an alleged violation of due

process. People v Smith, 498 Mich 466, 475; 870 NW2d 299 (2015).

Shifting the burden of proof or persuasion regarding an element of a charged crime onto a

defendant violates the constitutional right of due process. People v Fields, 450 Mich 94, 113; 538

NW2d 356 (1995). However, “[w]hen a defense makes an issue legally relevant, the prosecutor is

not prohibited from commenting on the improbability of the defendant’s theory or evidence.” Id.

at 116. The prosecutor may use cross-examination to explore weaknesses in a defense theory. Id.

at 117. “Arguments regarding the weight and credibility of the witnesses and evidence presented

by defendant do not shift the burden to the defendant to prove his innocence, but rather question

the reliability of the testimony and evidence presented.” Id. at 107.

Defendant argues that the prosecutor shifted the burden of proof by suggesting that

defendant failed to present exculpatory evidence regarding his stopping at a gas station to take a

nap before the accident occurred. Defendant notes that, during cross-examination, the prosecutor

asked defendant if he failed to tell the police during his interview about the gas station stop.

Defendant observes that the prosecutor asked Sergeant Bansen, who interviewed defendant on the

date of the accident, if defendant did not reveal the alleged gas station stop until he testified at

trial.9 The prosecutor also asked Sergeant Bansen if, in his experience, interviewees tend to reveal

information that would help them get out of trouble, and Sergeant Bansen responded affirmatively.

Defendant further notes that, during closing argument, the prosecutor stated, “Please consider why

[defendant] would, three years later, have a secret defense that nobody was allowed to know about

or investigate and that he did nothing to substantiate.”

The prosecutor’s questions and argument did not shift the burden of proof onto defendant.

Defendant chose to testify and present a defense that hinged on his credibility. He claimed for the

first time at trial, which was more than three years after the accident, that he stopped at a gas station

to take a nap before the accident, in which he fell asleep while driving. This testimony was

apparently part of a defense theory to suggest that defendant was not driving recklessly, which was

pertinent to the charge of reckless driving (of which he was ultimately acquitted).10 The prosecutor

9

After hearing defendant’s trial testimony, Sergeant Bansen looked into the matter and learned

that the two gas stations located where defendant claimed to have stopped for a nap no longer had

surveillance video from the date of the accident, which was more than three years earlier.

10

Defendant suggests that his testimony about stopping at a gas station was somehow pertinent to

the knowledge element of the failure to stop charge, but he fails to clarify how this evidence was

relevant to that charge. Defendant also again repeats his misstatement of the knowledge element

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was permitted to explore weaknesses in this defense theory. Fields, 450 Mich at 117. By choosing

to assert a defense that was contingent on his own credibility, “defendant invited cross-

examination and argument by the prosecutor about the validity and weight of the evidence in

support of his theory.” Id. at 118. The prosecutor did not shift the burden of proof but permissibly

questioned the reliability of the evidence in support of the defense theory. Id. at 107, 116-117.

Moreover, the trial court instructed the jury multiple times over the course of the trial—

including after defense counsel objected with respect to the present issue—that the prosecutor had

the burden of proof. The court also instructed the jury that the lawyers’ questions, statements, and

arguments were not evidence. “[J]urors are presumed to follow their instructions.” Unger, 278

Mich App at 235.

G. CUMULATIVE ERROR

Defendant argues that he was denied a fair trial because of the cumulative effect of errors.

We disagree.

This Court reviews a cumulative-error “issue to determine if the combination of alleged

errors denied defendant a fair trial.” People v Dobek, 274 Mich App 58, 106; 732 NW2d 546

(2007).

“The cumulative effect of several errors can constitute sufficient prejudice to warrant

reversal even when any one of the errors alone would not merit reversal, but the cumulative effect

of the errors must undermine the confidence in the reliability of the verdict before a new trial is

granted.” Id. If no errors have been established, then “there can be no cumulative effect of errors

meriting reversal.” Id. As discussed, defendant has failed to establish any errors. Hence, there is

no cumulative effect of errors meriting reversal.

H. SENTENCING; FOURTH-OFFENSE HABITUAL OFFENDER

Defendant argues that the trial court erred in sentencing him as a fourth-offense habitual

offender. Defendant concedes that he had two prior felony convictions, which were for assault

with intent to rob while armed and larceny by conversion. But he contends that his third prior

conviction, which was for attempted resisting and obstructing, was not a felony and therefore could

not be used to enhance his sentence. Defendant’s argument is unavailing.

This issue involves interpretation or application of the statutory provision regarding fourth-

offense habitual offenders, MCL 769.12. Issues of statutory interpretation are reviewed de novo.

People v Jones, 297 Mich App 80, 84; 823 NW2d 312 (2012). Unambiguous statutory language

must be enforced as written. Id.

of that offense, this time relying on outdated analysis from a 2002 case, People v Lang, 250 Mich

App 565, 572; 649 NW2d 102 (2002), that was superseded by a 2005 amendment of MCL 257.617.

See 2005 PA 3. As explained earlier, the knowledge element of the current version of the statute

has been properly set forth in more recent caselaw. See Dumback, 330 Mich App at 642.

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MCL 769.12(1) provides, in relevant part, that “[i]f a person has been convicted of any

combination of 3 or more felonies or attempts to commit felonies, . . . and that person commits a

subsequent felony within this state,” then the enhanced sentencing provisions apply. A “felony”

is “a violation of a penal law of this state for which the offender, upon conviction, may be punished

by imprisonment for more than 1 year or an offense expressly designated by law to be a felony.”

MCL 761.1(f). Resisting and obstructing is a felony because it is punishable by up to two years

in prison. MCL 750.81d(1). Therefore, attempted resisting and obstructing is an attempt to

commit a felony and may be used to enhance a sentence under MCL 769.12(1). An attempt to

commit a felony need not be a felony itself in order to be used for sentencing enhancement. People

v Slocum, 156 Mich App 198, 200; 401 NW2d 271 (1986); People v Davis, 89 Mich App 588,

594; 280 NW2d 604 (1979). The trial court therefore did not err in using the attempted resisting

and obstructing conviction to enhance defendant’s sentence.

Affirmed.

/s/ Christopher M. Murray

/s/ James Robert Redford

/s/ Michelle M. Rick

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