People of Michigan v. Smokey Dee Crutcher-Bey

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

June 21, 2016

Plaintiff-Appellee,

v No. 323975

Macomb Circuit Court

SMOKEY DEE CRUTCHER-BEY, LC No. 2014-001350-FC

Defendant-Appellant.

Before: MURPHY, P.J., and SAAD and BORRELLO, JJ.

PER CURIAM.

Defendant appeals his jury trial convictions of armed robbery, MCL 750.529, and two

counts of unlawful imprisonment, MCL 750.349b. The trial court sentenced defendant to 180 to

360 months’ imprisonment for the armed robbery conviction and 120 to 180 months’

imprisonment for each unlawful imprisonment conviction. For the reasons provided below, we

affirm.

I. EVIDENTIARY HEARING

Defendant argues that the trial court abused its discretion when it denied his motion for

an evidentiary hearing for his claim of ineffective assistance of counsel. We disagree.

This Court reviews a trial court’s decision on whether to conduct an evidentiary hearing

for an abuse of discretion. People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). A

trial court abuses its discretion when its decision falls “outside the range of reasonable and

principled outcomes.” People v Schaw, 288 Mich App 231, 236; 791 NW2d 743 (2010).

The facts supporting a claim of ineffective assistance of counsel must either exist in the

trial record or be established in an evidentiary hearing on the issue. People v Ginther, 390 Mich

436, 442-443; 212 NW2d 922 (1973). An evidentiary hearing, or a Ginther hearing, is

appropriate when the defendant’s ineffective assistance of counsel claim depends on facts not of

record. Id. However, a Ginther hearing is only warranted if the defendant is able to show a

potentially meritorious ineffective assistance of counsel claim for which resolution requires

further factual development. See People v Simmons, 140 Mich App 681, 685; 364 NW2d 783

(1985) (denying the defendant’s request for remand for an evidentiary hearing when the

defendant failed to provide an adequate reason for the request). In seeking a hearing, it is

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defendant’s burden to show that further elicitation of facts would advance his position. See

People v McMillan, 213 Mich App 134, 142; 539 NW2d 553 (1995).

The trial court did not abuse its discretion when it denied defendant’s request for a

Ginther hearing because defendant failed to prove that such a hearing was necessary for the trial

court to address any of defendant’s ineffective assistance of counsel claims. Indeed, defendant’s

motion for a new trial and for a Ginther hearing was devoid of any argument regarding the

evidence he intended to present at an evidentiary hearing or the errors of defense counsel he

could only prove through the presentation of additional evidence. Defendant’s motion was

supported only by a 16-page document, which apparently was not produced by counsel, that

simply presented a litany of concerns or questions regarding what occurred during trial,

including allegations that trial counsel’s performance was deficient. As the prosecutor correctly

argues, the list of errors precisely tracks the trial transcript, and the facts supporting each alleged

error were clearly gleaned from the existing court record. Additionally, when asked at the

motion hearing to articulate what evidence defendant would present at an evidentiary hearing

that was not already contained in the record, defendant was unable to provide an adequate

response. It was defendant’s burden to make some showing that a hearing was necessary to

develop the facts related to his ineffective assistance of counsel claim. The trial court was not

obligated to hold a hearing when defendant failed to provide an offer of proof supporting the

necessity of such a hearing and defendant’s motion for a new trial could properly be addressed

without one.

II. CONTENTS OF TELEPHONE CONVERSATION

On appeal, defendant argues that the trial court erred when it denied his request to

suppress any evidence of the contents of a telephone conversation he made to his alibi witness

while he was in custody at the police department. We disagree.

This Court reviews a trial court’s decision to admit or exclude evidence for an abuse of

discretion. People v Herndon, 246 Mich App 371, 406; 633 NW2d 376 (2001). The underlying

constitutional issues, including whether a Fourth Amendment violation occurred, are reviewed

de novo. People v Gillam, 479 Mich 253, 260, 734 NW2d 585 (2007). To the extent we find

that constitutional error has occurred, “[w]e review preserved issues of constitutional error to

determine whether they are harmless beyond a reasonable doubt.” People v Dendel (On Second

Remand), 289 Mich App 445, 475; 797 NW2d 645 (2010). “A constitutional error is harmless if

[it is] clear beyond a reasonable doubt that a rational jury would have found the defendant guilty

absent the error.” Id. (quotation marks and citations omitted).

The Fourth Amendment serves to safeguard an individual’s privacy from unreasonable

governmental intrusions. People v Taylor, 253 Mich App 399, 403; 655 NW2d 291 (2002). A

defendant may challenge the admission of evidence obtained by governmental intrusion only if

he had a legitimate expectation of privacy in the place invaded. Rakas v Illinois, 439 US 128,

143; 99 S Ct 421; 58 L Ed 2d 387 (1978). To determine whether a person had a reasonable

expectation of privacy, it must be determined whether the person had a subjective expectation of

privacy and whether that expectation was one that society recognizes as reasonable. People v

Collins, 438 Mich 8, 18; 475 NW2d 684 (1991).

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In order to establish a Fourth Amendment violation with regard to a telephone

conversation, a defendant must have had a reasonable expectation of privacy in that

conversation. People v Bell, 131 Mich App 586, 588; 345 NW2d 652 (1983). Michigan courts

have specifically considered the expectation of privacy in a telephone conversation made from a

police station. In People v Tebo, 37 Mich App 141, 144-145; 194 NW2d 517 (1971), this Court

considered whether the defendant had an expectation of privacy when he made a phone call from

the booking desk of a county jail. This Court held that defendant’s telephone conversation had

been improperly intercepted by an officer, who had picked up the extension, because there was

“nothing in the record which indicates that the defendant should have known someone was

listening in.” Id. at 149. In contrast, this Court held in People v DeGeer, 140 Mich App 46, 47-

48; 363 NW2d 37 (1985), that the defendant did not have a reasonable expectation of privacy

because a sign located near the telephone warned him that all telephone conversations would be

recorded and placed him on notice that his conversation would be monitored. Further, this Court

has held that a defendant has no reasonable expectation of privacy in a telephone conversation

made in the presence of police officers that might easily overhear what is being said. Bell, 131

Mich App at 587. Indeed, the United States Supreme Court has clearly explained that

“conversations in the open would not be protected against being overheard, for the expectation of

privacy under the circumstances would be unreasonable,” Katz v United States, 389 US 347,

361; 88 S Ct 507; 19 L Ed 2d 576 (1967), and our Supreme Court has confirmed that what a

person knowingly exposes to the public is not subject to Fourth Amendment protection, People v

Catania, 427 Mich 447, 462; 398 NW2d 343 (1986).

Here, Officer Chad Finkbeiner, the detective in charge of the armed robbery

investigation, testified regarding the contents of a recorded phone conversation defendant had

with his alibi witness, Aerian Craig. Specifically, Finkbeiner only testified regarding two

statements the alibi witness made to defendant. However, defendant could not have had an

actual, subjective expectation of privacy when he made a telephone call as an arrestee from the

police department while in the presence of Finkbeiner. Although the record is unclear on

whether defendant was put on affirmative notice that his conversation might be electronically

recorded, defendant chose to make a telephone call in the presence of an officer who could easily

overhear what was being said. He was certainly on notice that Finkbeiner might be listening to

the conversation. Because defendant did not have a reasonable expectation of privacy in the

contents of his telephone conversation, his Fourth Amendment rights were not violated, and the

trial court did not abuse its discretion when it allowed Finkbeiner to testify regarding that

conversation.

Moreover, even if we were to find that defendant’s rights were infringed upon, the

constitutional error was harmless beyond a reasonable doubt because a rational jury would have

found defendant guilty absent any error. Finkbeiner only testified to two statements made by

Craig during the conversation, each of which suggested that she was planning to fashion an alibi

defense for defendant. In light of the overwhelming evidence presented at trial against

defendant, it is beyond any reasonable doubt that the jury would have believed Craig, who was

defendant’s girlfriend and an obviously interested witness, when she claimed that defendant was

with her during the time of the armed robbery. This is especially true for two reasons: (1)

during the time of the robbery, defendant’s cell phone was tracked to being near the location of

the robbery—not at the home where Craig claimed defendant and she were, and (2) Craig was

unable to explain why she directed eight separate phone calls and text messages to defendant

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during that same time period. The trial court’s decision to allow Finkbeiner’s rebuttal testimony

clearly did not affect the outcome of the case, and any violation of defendant’s purported right to

privacy was therefore harmless.

III. VOICE IDENTIFICATION TESTIMONY

Defendant claims that the trial court erred when it allowed evidence regarding Wisam

Noori’s voice identification of defendant without requiring the proper foundation. Again, we

disagree.

Defendant failed to preserve this issue for appeal by objecting to the admission of Noori’s

identification of defendant’s voice at trial. People v Aldrich, 246 Mich App 101, 113; 631

NW2d 67 (2001). This Court reviews unpreserved evidentiary issues for plain error affecting

substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). A plain

error is one that is clear or obvious, and defendant must have been prejudiced by the plain error.

Id. at 763. Lastly, “[r]eversal is warranted only when the plain, forfeited error resulted in the

conviction of an actually innocent defendant or an error seriously affected the fairness, integrity

or public reputation of judicial proceedings independent of defendant’s innocence.” Id. at 763-

764 (quotation marks and alterations omitted).

Testimony identifying a person’s voice is permissible and may be sufficient to identify

the person as the perpetrator of a crime. People v Bozzi, 36 Mich App 15, 19-22; 193 NW2d 373

(1971). Voice identification testimony must be “reasonably positive and certain,” and the

identifying witness must have sufficient knowledge of the voice. People v Hayes, 126 Mich App

721, 725; 337 NW2d 905 (1983). This knowledge may be based on some peculiarity of the

voice or familiarity with the voice. People v Murphy (On Remand), 282 Mich App 571, 584;

766 NW2d 303 (2009); Bozzi, 36 Mich App at 22. It is up to the trier of fact to determine

credibility and decide how much weight to place on a witness’s voice identification. People v

Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000); Bozzi, 36 Mich App at 22.

Defendant claims that the trial court’s admission of testimony regarding Noori’s voice

identification was improper because Noori admitted that he only “kind of recognized the [armed

robber’s] voice,” and that he had no idea who the armed robber was during the commission of

the crime. According to defendant, Noori’s admissions provided proof that his voice

identification was not “positive or certain.” Defendant mischaracterizes the requirements for

voice identification testimony. Such testimony from a witness must be reasonably positive or

certain, and Noori’s testimony met this requirement. Noori explained that he had recognized the

voice of the armed robber as a regular customer who worked for a specific nearby business and

cashed paychecks at the gas station but could not remember the customer’s name on the day of

the robbery. The day after the robbery, however, Noori remembered that the voice belonged to a

customer with a distinctive sounding name, like “Snakey, Snarkey, Stinkey, [or] Smokey.”

Noori’s identification of the armed robber’s voice as belonging to a regular customer of the gas

station, his memory that the customer was an employee of a specific workplace, and his

description of the context in which Noori had previously encountered the armed robber’s voice

rendered his ultimate identification reasonably certain, even in light of his failure to recall the

man’s name until the day after the robbery.

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Noori’s testimony also illustrated that he had sufficient knowledge of the armed robber’s

voice to allow him to make the identification. Noori testified that defendant had been a regular

customer, cashing his paycheck every Friday with Noori, who always worked the same shift.

Noori said that he often spoke with defendant in “normal” voices as he cashed defendant’s

paychecks and was familiar with the sound of his voice. Noori admitted that he had not

recognized the armed robber’s voice at first, that he was not trained in voice recognition, and that

he had not seen defendant in the gas station cashing a check for more than a month prior to the

armed robbery. However, any shortcomings of Noori’s identification go to the weight and

credibility of his identification testimony, not the admissibility, and were properly left for the

jury’s consideration.

IV. SUFFICIENCY OF THE EVIDENCE—UNLAWFUL IMPRISONMENT

Defendant contends that there was insufficient evidence to support his conviction for the

unlawful imprisonment of Dennis Stone, a customer of the gas station during the armed robbery.

We disagree.

We review challenges to the sufficiency of evidence de novo. People v Lanzo Constr Co,

272 Mich App 470, 473; 726 NW2d 746 (2006). This Court must review the evidence in a light

most favorable to the prosecution and determine whether a rational trier of fact could have found

each element of the charged crimes proven beyond a reasonable doubt. People v Reese, 491

Mich 127, 139; 815 NW2d 85 (2012). “Circumstantial evidence and reasonable inferences that

arise from such evidence can constitute satisfactory proof of the elements of the crime.” People

v Williams, 268 Mich App 416, 419; 707 NW2d 624 (2005). We resolve conflicts in the

evidence in favor of the prosecution, and will not interfere with the trier of fact’s determinations

regarding the weight of evidence and the credibility of the witnesses. Unger, 278 Mich App at

222.

Pursuant to MCL 750.349b(1)(a), defendant was convicted of two counts of unlawful

imprisonment, one for victim Noori and one for victim Stone. For a conviction of unlawful

imprisonment under this statutory subsection, the prosecutor must prove that defendant

“knowingly restrain[ed] another person” and “[t]he person [was] restrained by means of a

weapon or dangerous instrument.” People v Kosik, 303 Mich App 146, 151-152; 841 NW2d 906

(2013). The unlawful imprisonment statute defines “restrain” as “to forcibly restrict a person’s

movements or to forcibly confine the person so as to interfere with that person’s liberty without

that person’s consent or without lawful authority.” MCL 750.349b(3)(a). Such restraint need

not last for any particular period of time. MCL 750.349b(3)(a).

Defendant does not challenge his unlawful imprisonment conviction with regard to

Noori. Defendant only argues that his conviction for the unlawful imprisonment of Stone lacked

sufficient evidentiary support. Specifically, defendant asserts that there was insufficient

evidence to prove that defendant used “a weapon or dangerous instrument.” Defendant relies on

the fact that only BB guns were later found at defendant’s house and that the felony-firearm and

felon-in-possession-of-a-firearm charges were dismissed. However, these firearm statutes

require a true “firearm,” MCL 750.227b(1); MCL 750.224f(1), which is different than the

unlawful imprisonment statute, which simply requires “a weapon or dangerous instrument.”

Defendant wholly fails to acknowledge this critical distinction and offers no argument or

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authority as to why, assuming these BB guns were the ones used during the robbery, these BB

guns would not qualify, at a minimum, as “dangerous instrument[s].” Defendant’s failure to

properly brief the issue results in it being abandoned. People v Smith, 439 Mich 954 (1992). In

any event, we conclude that a BB gun is “a weapon or dangerous instrument.” In this case,

neither the term “weapon” nor the term “dangerous instrument” is defined by the statute, and this

Court may therefore look to the dictionary definition of those terms. People v Lange, 251 Mich

App 247, 253; 650 NW2d 691 (2002). The dictionary definition of the term “weapon” is “any

instrument or device used for attack or defense in a fight or in combat” and “anything used

against an opponent, adversary, or victim.” Random House Webster’s College Dictionary

(1997); see also Lange, 251 Mich App at 256 (noting the same definition). The term

“dangerous,” as part of “dangerous instrument,” is defined as “full of danger or risk” or “able or

likely to cause physical injury.” Random House Webster’s College Dictionary (1997). Using

these definitions, it is clear that a BB gun would constitute a “dangerous instrument” because,

although it propelled BB pellets as opposed to bullets, it was “able or likely to cause physical

injury.”

Defendant also avers that without Stone’s testimony, the jury could not have concluded

that Stone was restrained against his will. However, the jury saw the video of the armed robbery,

which clearly depicted defendant pointing a gun at Stone as Stone dropped to his knees and

lowered his head. Defendant forced Stone up and led him, while carrying a gun, to the walk-in

cooler in which defendant had already trapped Noori, and shut Stone inside. This evidence is

clearly sufficient to support the inference that Stone did not consent to the restraint.

Therefore, there was sufficient evidence to support defendant’s conviction of unlawful

imprisonment with respect to Stone.

V. CUMULATIVE ERROR

Defendant argues that he is entitled to reversal because the cumulative effect of the

aforementioned errors committed by the trial court significantly undermined confidence in the

verdict’s reliability. Again, we disagree.

We review this 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), citing People v

Knapp, 244 Mich App 361, 387-388; 624 NW2d 227 (2001). “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.” Dobek, 274 Mich App

at 106. “In making this determination, only actual errors are aggregated to determine their

cumulative effect.” People v Bahoda, 448 Mich 261, 292 n 64; 531 NW2d 659 (1995). If the

defendant has not established any errors, then reversal is not warranted. People v Brown, 279

Mich App 116, 146; 755 NW2d 664 (2008), citing Dobek, 274 Mich App at 106. Here, as

already discussed in this opinion, defendant has failed to establish any error. Thus, there are no

actual errors that can aggregate, and defendant’s claim for cumulative error must be rejected.

VI. SENTENCING

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Defendant argues that he is entitled to resentencing because the trial court, contrary to

People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), engaged in judicial fact-finding when

it assessed offense variables (OVs) 1, 8, 9, and 13 at sentencing. We disagree. Because

defendant did not raise this specific issue at the trial court, we review this unpreserved issue for

plain error affecting defendant’s substantial rights. Id. at 392.

At the outset, defendant appears to misunderstand Lockridge’s central holding. Contrary

to defendant’s assertion, it is not impermissible for a judge to engage in fact-finding.1 As this

Court has explained:

We reiterate that judicial fact-finding remains an important component of

Michigan’s sentencing scheme post-Lockridge. Although the sentencing

guidelines are no longer mandatory, they remain a highly relevant consideration

in a trial court’s exercise of sentencing discretion. Lockridge simply requires that

where, as here, a trial court was not aware at the time of sentencing that the

sentencing guidelines were advisory, we consider whether OVs were scored based

on facts necessarily found by the jury or admitted by defendant, and whether,

applying Lockridge, a remand is required. [People v Jackson (On

Reconsideration), ___ Mich App ___; ___ NW2d ___ (Docket No. 322350,

issued December 3, 2015), slip op, pp 11-12 (citations and quotation marks

omitted).]

In Lockridge, our Supreme Court held that Michigan’s sentencing guidelines are

unconstitutional to the extent that judges were bound to sentence within the guidelines range

based on the scoring of the offense variables that worked to increase the floor of the minimum

guidelines range. Lockridge, 498 Mich at 364. The concern is that when a judge makes such

findings of fact “beyond facts admitted by the defendant or found by the jury” in a sentencing

proceeding, a defendant’s Sixth Amendment right to a jury trial is violated. Id. The Court held

that in order to avoid any Sixth Amendment violation, Michigan’s sentencing guidelines are to

be deemed advisory, instead of mandatory. Id. at 391. However, sentencing courts must

continue to consult the guidelines and “ ‘take them into account when sentencing.’ ” Id., quoting

United States v Booker, 543 US 220, 264; 125 S Ct 738; 160 L Ed 2d 621 (2005).

In determining whether there is any plain error under this new scheme, the

first inquiry is whether the facts admitted by the defendant and the facts

necessarily found by the jury were sufficient to assess the minimum number of

OV points necessary for the defendant’s score to fall in the cell of the sentencing

grid under which he or she was sentenced. If the answer is “yes,” then a

defendant cannot establish any plain error. If the answer is “no,” then a remand to

the trial court is required to allow it to determine whether, now aware of the

advisory nature of the guidelines, the court would have imposed a materially

different sentence. If the court determines that it would have imposed a

1

Defendant suggests that even after remanding for a Lockridge violation, the sentencing judge is

prohibited from engaging in any fact finding, which as detailed herein is incorrect.

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materially different sentence, then it shall order resentencing. [Jackson, ___ Mich

App at ___ (slip op at 12) (citations and quotation marks omitted).]

It is also important to note that defendant does not challenge on appeal that the trial court

erred in its scoring of any of the OVs. Instead, defendant merely claims that the facts supporting

the scoring of these OVs were not necessarily found by the jury or admitted by defendant.2

A. OV 1

The trial court scored OV 1 at five points, which involves the “aggravated use of a

weapon.” MCL 777.31(1). A court is required to score five points when, during the commission

of the charged crime, “[a] weapon was displayed or implied.” MCL 777.31(1)(e). Indeed, OV 1

is assessed at five points even when the offender merely “used an object to suggest the presence

of a weapon.” MCL 777.31(2)(c).

The court’s assessment of five points for this OV was necessarily found by the jury’s

verdict. The jury convicted defendant of armed robbery, a conviction which necessitated a

finding that defendant “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.” People v Chambers, 277 Mich App 1, 7; 742 NW2d 610 (2007). This

language precisely tracks the requirement of MCL 777.31(1)(e), which directs the trial court to

assess five points for OV 1 when a weapon was “displayed or implied.” The facts necessary to

support the trial court’s assessment of OV 1 were therefore found by a jury beyond a reasonable

doubt, and the scoring of this OV does not implicate any of the Lockridge concerns defendant

raises.

B. OV 8

The trial court scored 15 points for OV 8, which involves “asportation or captivity.”

MCL 777.38(1). A court properly scores 15 points when “[a] victim was asported to another

place of greater danger or to a situation of greater danger or was held captive beyond the time

necessary to commit the offense.” MCL 777.38(1)(a).

Finding that “[a] victim was asported to another place of greater danger or to a situation

of greater danger or was held captive beyond the time necessary to commit the offense” was

necessarily determined by the jury. The jury found beyond a reasonable doubt that defendant

unlawfully imprisoned Noori; and in this instance, any amount of imprisonment would have been

beyond the time necessary to commit the scored offense of armed robbery. Therefore, the trial

court’s scoring of 15 points for this OV did not violate defendant’s Sixth Amendment right.

2

In doing so, defendant makes the curious assertion in his brief on appeal that “a jury did not

find beyond a reasonable doubt [the facts underlying the scoring of] these variables as this was a

plea-based conviction.” But these were not plea-based convictions, as defendant was convicted

pursuant to a jury trial.

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C. OV 9

The trial court scored OV 9 at 10 points. “Offense variable 9 is number of victims” and

is properly assessed at 10 points when “[t]here were 2 to 9 victims who were placed in danger of

physical injury or death.” MCL 777.39(1)(c). As our Supreme Court has noted, “in a robbery,

the defendant may have robbed only one victim, but scoring OV 9 for multiple victims may

nevertheless be appropriate if there were other individuals present at the scene of the robbery

who were placed in danger of injury or loss of life.” People v Sargent, 481 Mich 346, 350 n 2;

750 NW2d 161 (2008). Here, the jury found that, during the course of robbing Noori, defendant

unlawfully imprisoned Stone and used “a weapon or dangerous instrument” in the process.

Thus, the jury’s verdict supports the finding that there were two victims who were placed in

danger of physical injury or death during the robbery of Noori.

D. OV 13

“Offense variable 13 is continuing pattern of criminal behavior.” MCL 777.43. OV 13

should be assessed at 25 points when “[t]he offense was part of a pattern of felonious criminal

activity involving three or more crimes against a person.” MCL 777.43(1)(c). A pattern of

criminal activity may be based on multiple concurrent offenses arising from a single event.

People v Harmon, 248 Mich App 522, 532; 640 NW2d 314 (2001). When a trial court assesses

this variable, it is required to count “all crimes within a 5-year period, including the sentencing

offense . . . regardless of whether the offense resulted in a conviction.” MCL 777.43(2)(a).

The trial court’s assessment of OV 13 did not require judicial fact finding. The jury

found defendant guilty beyond a reasonable doubt of armed robbery and two counts of unlawful

imprisonment. All three of these convictions were for crimes against a person. MCL 777.16y;

MCL 777.16q. In other words, the jury necessarily found that defendant committed three or

more crimes against a person within a five-year period beyond a reasonable doubt.

E. ALL CHALLENGED OV SCORES WERE SUPPORTED BY JURY VERDICT

As noted, all of the challenged OV findings were necessarily found by the jury. And

because the jury’s findings were sufficient to assess the minimum number of OV points

necessary for the defendant’s score to fall in the cell of the sentencing grid under which he or she

was sentenced, defendant cannot establish any plain error. Jackson, ___ Mich App at ___ (slip

op at 12).

Affirmed.

/s/ William B. Murphy

/s/ Henry William Saad

/s/ Stephen L. Borrello

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