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

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

April 23, 2020

v No. 346290

Oakland Circuit Court

TERRANCE ANDRE CHILDS,

LC No. 2018-265961-FH

Defendant-Appellant.

Before: RIORDAN, P.J., and FORT HOOD and SWARTZLE, JJ.

PER CURIAM.

Defendant appeals as of right from his jury convictions of multiple offenses and the

resulting sentences. Challenging his convictions, defendant raises arguments regarding the

sufficiency and great weight of the evidence, prosecutorial error, and ineffective assistance of

counsel. Challenging his sentences, defendant raises arguments regarding a habitual offender

notice, calculation of offense variables, consecutive sentencing, and the constitutionality of a fee.

We affirm.

I. BACKGROUND

During the evening of January 7, 2018, and into the early morning hours of January 8,

2018, defendant was at his mother’s house playing cards with the victim, the victim’s girlfriend,

and several other friends and relatives. The victim’s girlfriend, Tamisha Powell, was also

defendant’s ex-girlfriend, and she and defendant had a child in common. The victim testified that

he won $80 during the card game. Although no altercation occurred during the card game, the

victim testified that he became concerned and jealous of Powell’s interactions with defendant.

This caused a verbal altercation between Powell and defendant, and Powell ultimately drove the

victim to his home, which he shared with his grandmother.

After Powell left, the victim called her and asked her to return. Powell informed the victim

that she was already outside of his house. The victim went to the door and saw two men

approaching the house behind Powell, one of whom was Robert Pollard-Christy. The second man

was never identified. When the victim opened his door to let Powell inside, he heard defendant—

whom he had not seen standing to the side of the door—say something about money. Almost

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immediately, defendant punched the victim in the face and all four people entered the victim’s

home. Defendant, Pollard-Christy, and the unidentified man proceeded to assault the victim inside

his home, and the victim fell to the ground in an attempt to protect himself.

The victim’s grandmother woke during the altercation and entered the living room. Upon

seeing the assault, she told the men to get off of the victim. In response, one of the men struck her

in the face and she suffered a black eye. When the victim realized that his grandmother had been

hit, he tried to fight back. The victim’s grandmother then announced that she was calling the

police, and the intruders fled. Defendant and Pollard-Christy were later arrested and tried together

but with separate juries.

At trial, the victim testified over the course of three separate days, during which he

provided inconsistent testimony from day to day. During cross-examination, the victim stated that

he invited defendant into the house before the assault occurred. Earlier in the trial, however, the

victim specifically stated that he did not invite defendant into the house. Instead, the victim

testified that he invited only Powell into the house. Indeed, the victim repeatedly claimed that he

did not see defendant approach the house, and thus, could not have invited him inside. The victim

also testified that, before defendant punched his face, they had a conversation about money,

referring to the $80 that he won during the card game.

During his trial testimony, the victim denied that a gun was present during the assault. Yet,

the prosecutor presented the jury with the 911 recording in which the victim’s grandmother

informed the 911 operator that one of the men had a gun. As she said that, the victim could be

heard in the background verifying the presence of a gun. Later during the call, the victim reasserted

that one of the men had a gun. When the victim spoke with police immediately after the assault,

he reiterated that the men had a gun and that they tried to drag him outside.

The victim’s grandmother testified that she called 911 as the fight was ending or had just

ended. During the call, the victim’s grandmother stated that people “broke into” her house. On

the recording, the victim can be heard telling the 911 operator that several men had just run into

his home and started beating him, and he specifically described the situation as a “home invasion.”

The 911 recording is five minutes long. At the end of the recording, the victim can be heard telling

the 911 operator that the police had just arrived at his home.

Deputy Brandon Scruggs testified that he was the first police officer to arrive, and the first

thing he did was speak to the victim. Deputy Scruggs stated that the victim’s shirt was covered in

blood and he appeared upset. When the prosecutor asked Deputy Scruggs about the victim’s

statements that night, defendant objected. In an attempt to establish that the victim’s statements

fell under the excited-utterance exception to the hearsay rule, the prosecutor elicited further

testimony from the deputy about the victim’s behavior and appearance. The deputy testified that

he arrived at the scene within six or seven minutes of the 911 call. He observed that the victim

appeared to be coherent, and was not excessively intoxicated, but appeared to be upset, panicked,

and unable to focus.

Deputy Scruggs also testified that he saw blood on the wall of the home when he first

arrived to speak with the victim, and that the victim was bleeding from his mouth and had blood

on his shirt. The victim’s grandmother similarly testified that, while she was cleaning the house

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after the altercation, she had to clean blood out of the carpet and curtains. Further, she stated that

it took her about seven or eight hours to clean up the house after the fight, noting that there were

“two glass tables knocked down, a lamp and six plants with the dirt . . . black dirt and everything

all over the carpeting.” Meanwhile, the victim testified that he suffered significant injuries after

being beaten by defendant and his cohorts. Three photographs admitted into evidence showed

swelling and bruising on the victim’s head and face. Although the victim did not seek medical

treatment for those injuries, his grandmother testified that she urged him to obtain such care.

The jury convicted defendant of first-degree home invasion, MCL 750.110a(2); assault

with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84(1)(a); and assault

and battery, MCL 750.81. The trial court sentenced defendant as a fourth-offense habitual

offender, MCL 769.12, to a term of 15 to 80 years in prison for the first-degree home invasion

conviction, 26 to 80 years in prison for the AWIGBH conviction, and 93 days in jail for the assault

and battery conviction. The trial court ordered that defendant serve consecutive prison sentences

for first-degree home invasion and AWIGBH convictions.

Defendant now appeals, challenging both his convictions and sentences.

II. ANALYSIS

A. HEARSAY EVIDENCE

Defendant first argues that the trial court abused its discretion by admitting hearsay

testimony from Deputy Scruggs, relating what the victim said at the scene. Because the victim’s

statements fell within the excited-utterance exception to the hearsay rule, we conclude that the trial

court did not err in admitting the deputy’s testimony.

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

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

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

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

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

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

of discretion to admit evidence that is inadmissible as a matter of law.” People v Henry, 315 Mich

App 130, 143; 889 NW2d 1 (2016).

Defendant argues that the testimony of Deputy Scruggs regarding the victim’s statements

on the night of the crime was inadmissible hearsay. Hearsay “is a statement, other than the one

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

of the matter asserted.” MRE 801(c). “Hearsay evidence is inadmissible unless it falls within one

of the exceptions listed in the Michigan Rules of Evidence.” People v Solloway, 316 Mich App

174, 199; 891 NW2d 255 (2016), citing MRE 802.

We conclude that the testimony was admissible under the excited-utterance exception to

the hearsay rule. This exception allows admission of statements “relating to a startling event or

condition made while the declarant was under the stress of excitement caused by the event or

condition.” MRE 803(2). “The rule allows hearsay testimony that would otherwise be excluded

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because it is perceived that a person who is still under the sway of excitement precipitated by an

external startling event will not have the reflective capacity essential for fabrication so that any

utterance will be spontaneous and trustworthy.” People v Smith, 456 Mich 543, 550; 581 NW2d

654 (1998) (cleaned up). For the rule to apply, “a statement must meet three criteria: (1) it must

arise out of a startling occasion; (2) it must be made before there has been time to contrive and

misrepresent; and (3) it must relate to the circumstances of the startling occasion.” People v

Straight, 430 Mich 418, 424; 424 NW2d 257 (1988) (cleaned up).

The hearsay testimony at issue in this case involves the victim’s statements to Deputy

Scruggs when he arrived at the victim’s home after the crime occurred. Defendant does not contest

that the statements were made after a startling event and related to that event. Thus, the only

element in contention is the second one, which requires that the statement “must be made before

there has been time to contrive and misrepresent.” Id. (cleaned up).

Defendant argues that enough time had passed to disqualify the victim’s statement as an

excited utterance. The trial court did not abuse its discretion in finding the contrary. “The pertinent

inquiry is not whether there has been time for the declarant to fabricate a statement, but whether

the declarant is so overwhelmed that [he] lacks the capacity to fabricate.” People v McLaughlin,

258 Mich App 635, 659-660; 672 NW2d 860 (2003). “Physical factors, such as shock,

unconsciousness, or pain, may prolong the period in which the risk of fabrication is reduced to an

acceptable minimum.” Smith, 456 Mich at 552 (cleaned up). “The trial court’s determination

whether the declarant was still under the stress of the event is given wide discretion.” Id.

The trial court was presented with evidence that the victim suffered a severe beating by a

group of three men in the middle of the night. During that altercation, the victim’s grandmother

had been struck in the face. Within 10 minutes of that fight, the victim spoke to Deputy Scruggs.

During the conversation, the deputy observed that the victim was upset, panicked, and unable to

focus. Considering the proximity in time to the startling event, the severity of the fight, and the

victim’s demeanor during his statement, the trial court was well-supported in holding that the

victim spoke to the deputy while so overwhelmed that he lacked the capacity to fabricate. See

McLaughlin, 258 Mich App at 659-660. Consequently, the trial court did not abuse its discretion

when it admitted the deputy’s testimony regarding the victim’s statements into evidence under the

excited-utterance exception to the hearsay rule.

Furthermore, to the extent that defendant argues on appeal that he was denied his right to

a fair trial or to due process of law because of the admission of the deputy’s testimony, defendant

has not established plain error affecting his substantial rights. The trial court’s admission of the

evidence was proper. Because no error occurred, defendant has provided no grounds for us to

determine that the trial was constitutionally unfair or that defendant was deprived of his right to

due process of law.

B. SUFFICIENCY AND GREAT WEIGHT OF THE EVIDENCE

Defendant next argues that the prosecutor presented insufficient evidence to support his

conviction of first-degree home invasion. In his Standard 4 brief on appeal, defendant also argues

that there was insufficient evidence to support his conviction of AWIGBH and that both

convictions were against the great weight of the evidence.

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“A defendant need not take any action to preserve a challenge to the sufficiency of the

evidence.” People v Williams, 294 Mich App 461, 471; 811 NW2d 88 (2011). Therefore,

defendant’s challenges to the sufficiency of the evidence to support his convictions of first-degree

home invasion and AWIGBH are preserved for appellate review. In his Standard 4 brief, however,

defendant also argues that these two convictions were against the great weight of the evidence. A

challenge to the great weight of the evidence is preserved by making a motion for a new trial on

that ground. People v Musser, 259 Mich App 215, 218; 673 NW2d 800 (2003). Because defendant

never moved for a new trial, his great-weight arguments are not preserved for appellate review.

Id.

On appeal, this Court reviews de novo a challenge to the sufficiency of the evidence.

Henry, 315 Mich App at 135. When reviewing a sufficiency challenge, “we review the evidence

in the light most favorable to the prosecutor and determine whether a rational trier of fact could

find the defendant guilty beyond a reasonable doubt.” People v Smith-Anthony, 494 Mich 669,

676; 837 NW2d 415 (2013) (cleaned up). “The standard of review is deferential: a reviewing court

is required to draw all reasonable inferences and make credibility choices in support of the jury

verdict.” People v Bailey, 310 Mich App 703, 713; 873 NW2d 855 (2015) (cleaned up).

When reviewing a great-weight challenge, typically, “[w]e review for an abuse of

discretion a trial court’s grant or denial of a motion for a new trial on the ground that the verdict

was against the great weight of the evidence.” People v Lacalamita, 286 Mich App 467, 469; 780

NW2d 311 (2009). This Court, however, reviews unpreserved challenges to the great weight of

the evidence for plain error affecting the defendant’s substantial rights. People v Lopez, 305 Mich

App 686, 695; 854 NW2d 205 (2014). “To avoid forfeiture under the plain error rule, three

requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious,

3) and the plain error affected substantial rights.” People v Carines, 460 Mich 750, 763; 597

NW2d 130 (1999). To show that a defendant’s substantial rights were affected, there must be “a

showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Id.

“Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually

innocent defendant or when an error seriously affected the fairness, integrity or public reputation

of judicial proceedings independent of the defendant’s innocence.” People v Randolph, 502 Mich

1, 10; 917 NW2d 249 (2018) (cleaned up).

1. FIRST-DEGREE HOME INVASION

Defendant argues that the prosecutor presented insufficient evidence to prove beyond a

reasonable doubt that he committed first-degree home invasion because there was no proof that he

entered the victim’s home without permission or committed breaking and entering. Alternatively,

he argues for the same reasons that his conviction of first-degree home invasion was against the

great weight of the evidence. Defendant’s arguments are without merit.

First-degree home invasion “can be committed in several different ways, each of which

involves alternative elements necessary to complete the crime.” People v Wilder, 485 Mich 35,

43; 780 NW2d 265 (2010). Defendant argues that the prosecutor failed to prove the first element

of the offense, which is that defendant either breaks and enters a dwelling or enters a dwelling

without permission. Id.

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The prosecutor presented sufficient evidence that defendant entered the house without

permission. During cross-examination, the victim did state that he invited defendant into the house

before the assault occurred. Earlier in the trial, however, the victim specifically stated that he did

not invite defendant into the house. Instead, the victim testified that he invited only Powell into

the house. Indeed, the victim repeatedly asserted that he did not see defendant approach the house,

and thus, could not have invited him inside. “A jury is free to believe or disbelieve, in whole or in

part, any of the evidence presented.” People v Russell, 297 Mich App 707, 721; 825 NW2d 623

(2012) (cleaned up). Although the victim’s testimony was inconsistent, the jury was free to believe

his testimony that he did not invite defendant inside his home. The jury was further supported in

reaching that conclusion based on the 911 recording, in which the victim’s grandmother stated that

the people “broke into” her house, while the victim described the situation as a “home invasion”

and stated that several men ran into his home and started beating him.

The jury was permitted to believe the version of the victim’s testimony that was supported

by the 911 recording, and to disbelieve the version of his testimony that he invited defendant into

the home. Id. On appeal, this Court is required to assume that the jury did just that, because in

the context of a sufficiency claim, this Court must resolve all evidentiary conflicts “in favor of the

prosecution.” Henderson, 306 Mich App at 9. Consequently, there was sufficient evidence to

sustain the jury’s finding that defendant did not have permission to enter the victim’s home when

the assault occurred, fulfilling the first element of first-degree home invasion. See Wilder, 485

Mich at 43.

Next, in his Standard 4 brief on appeal, defendant argues that his conviction of first-degree

home invasion was against the great weight of the evidence. “A verdict is against the great weight

of the evidence and a new trial should be granted when the evidence preponderates heavily against

the verdict and a serious miscarriage of justice would otherwise result.” Solloway, 316 Mich App

at 182-183 (cleaned up).

Defendant relies on the same argument he made regarding sufficiency of the evidence—

that the prosecutor failed to prove that he entered the victim’s home without permission. Although

the victim gave inconsistent testimony on that issue, the record does not support a finding that his

testimony was “so far impeached that it was deprived of all probative value or that the jury could

not believe it.” People v Lemmon, 456 Mich 625, 645-646; 576 NW2d 129 (1998) (cleaned up).

Instead, the jury was permitted to believe that testimony, especially where it was supported by the

911 recording. Defendant’s argument that his first-degree home invasion conviction was against

the great weight of the evidence is without merit.

2. AWIGBH

Next, in his Standard 4 brief, defendant challenges the sufficiency of the evidence to

support his AWIGBH conviction, and alternatively argues that this conviction was against the

great weight of the evidence. “The elements of assault with intent to do great bodily harm less

than murder are: (1) an attempt or threat with force or violence to do corporal harm to another (an

assault), and (2) an intent to do great bodily harm less than murder.” People v Blevins, 314 Mich

App 339, 357; 886 NW2d 456 (2016) (cleaned up). In this appeal, defendant only challenges the

intent element of the crime.

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“AWIGBH is a specific intent crime.” People v Stevens, 306 Mich App 620, 628; 858

NW2d 98 (2014). “This Court has defined the intent to do great bodily harm as an intent to do

serious injury of an aggravated nature.” Blevins, 314 Mich App at 357 (cleaned up).

Because of the difficulty in proving an actor’s intent, only minimal circumstantial

evidence is necessary to show that a defendant had the requisite intent. Intent to

cause serious harm can be inferred from the defendant’s actions, including the use

of a dangerous weapon or the making of threats. Although actual injury to the

victim is not an element of the crime, injuries suffered by the victim may also be

indicative of a defendant’s intent. [Stevens, 306 Mich App at 629 (citations

omitted).]

At trial, the victim testified that he suffered significant injuries after being beaten by

defendant and his cohorts. The photographs admitted into evidence, which showed swelling and

bruising on the victim’s head and face, supported that testimony. Although the victim did not seek

medical treatment for those injuries, the victim’s grandmother testified that she urged defendant

to obtain such care. Further, the photographs show that the injuries were quite serious. Thus, the

type of injuries suffered by the victim was enough to support the jury’s conclusion that defendant

intended to cause the victim great bodily harm.

Regarding defendant’s argument that he could not be convicted of AWIGBH for a crime

that was committed using only his bare hands, defendant ignores the fact that the jury was

presented with admissible evidence that a gun was present during the assault. Furthermore,

defendant relies on a case that is not applicable. Defendant argues that this Court should follow

People v VanDiver, 80 Mich App 352; 263 NW2d 370 (1977). That case, however, analyzed a

conviction of felonious assault, MCL 750.82, which requires proof of the use of a “dangerous

weapon.” Id. at 354. Thus, this Court held “that the term ‘dangerous weapon’ cannot be construed

to include the bare hand.” Id. at 357. In this case, defendant was convicted of AWIGBH, which

does not require proof of the use of a dangerous weapon. Blevins, 314 Mich App at 357.

Consequently, defendant’s reliance on VanDiver is misplaced.

In sum, the jury was presented with evidence that defendant participated in the beating of

the victim, which resulted in significant injuries to the victim’s head and face and involved a gun.

Considering the extent of the injuries and the presence of the gun, the jury was permitted to infer

that defendant had the intent to cause the victim great bodily harm. See Stevens, 306 Mich App at

629. Thus, there was sufficient evidence to sustain defendant’s conviction of AWIGBH. See

Blevins, 314 Mich App at 357; MCL 750.84(1)(a).

In his Standard 4 brief, defendant alternatively argues that his AWIGBH conviction was

against the great weight of the evidence. Defendant relies on the same arguments already

discussed. Although the victim did present inconsistent testimony regarding the presence of a gun,

his testimony regarding the significance of his injuries was supported by the photographic

evidence. Moreover, while the victim’s inconsistent testimony regarding the gun was subject to

impeachment, it could not be said that the evidence of the presence of a gun “was so far impeached

that it was deprived of all probative value or that the jury could not believe it.” Lemmon, 456 Mich

at 645-646 (cleaned up). Instead, it was within the realm of reasonableness that the jury decided

to disbelieve the victim’s trial testimony regarding the absence of the gun, and to believe his earlier

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statement, made to the 911 operator and Deputy Scruggs in the heat of the moment, that a gun was

present. Defendant’s argument that his AWIGBH conviction was against the great weight of the

evidence is without merit.

C. PROSECUTORIAL ERROR

Defendant next argues, in his Standard 4 brief, that the prosecutor committed error

requiring reversal and the grant of a new trial. Defendant’s argument is without merit.

A claim of prosecutorial error is preserved by a contemporaneous objection and a request

for a curative instruction. People v Mullins, 322 Mich App 151, 172; 911 NW2d 201 (2017).

Defendant did not object to the alleged incidents of prosecutorial error or request curative

instructions during trial. Therefore, this issue is not preserved for our review. Id. This Court

generally reviews de novo claims of prosecutorial error to determine whether the defendant was

denied a fair trial. People v Dunigan, 299 Mich App 579, 588; 831 NW2d 243 (2013). Because

this issue has not been preserved for review, we review it only for plain error affecting defendant’s

substantial rights. People v Roscoe, 303 Mich App 633, 648; 846 NW2d 402 (2014).

We must evaluate claims of prosecutorial error on a case-by-case basis, reviewing the

prosecutor’s actions in context and in light of the defendant’s arguments. People v Lane, 308 Mich

App 38, 62-63; 862 NW2d 446 (2014). “Generally, prosecutors are accorded great latitude

regarding their arguments and conduct,” and they are “free to argue the evidence and all reasonable

inferences from the evidence as it relates to [their] theory of the case.” People v Bahoda, 448 Mich

261, 282; 531 NW2d 659 (1995) (cleaned up). In making those arguments, “[t]he prosecutor need

not speak in the blandest of all possible terms.” Blevins, 314 Mich App at 355 (cleaned up).

Nonetheless, “a prosecutor may not make a statement of fact to the jury that is unsupported by the

evidence.” People v Ericksen, 288 Mich App 192, 199; 793 NW2d 120 (2010) (cleaned up).

Defendant first argues that the prosecutor committed error by arguing that there was blood

in the victim’s home after the fight and that the home was “torn up.” Defendant contends that the

evidence established that there was not blood in the home or signs of a fight. As noted above,

however, Deputy Scruggs testified that he saw blood on the wall of the home and that the victim

was bleeding from his mouth and had blood on his shirt. The victim’s grandmother testified that,

while she was cleaning the house after the altercation, she had to clean blood out of the carpet and

curtains, and it took her about seven or eight hours to clean up the house. Thus, the prosecutor did

not raise facts not in evidence. Because there was evidence of blood in the house and that the

house was a mess, the prosecution did not commit error, plain or otherwise, by talking about it.

See id.

Next, defendant argues that the prosecutor committed error by repeatedly referring to a gun

throughout the case. Defendant asserts that this was impermissible because there was no evidence

that defendant or his cohorts had a gun on the night of the attack. Defendant primarily relies on

the victim’s trial testimony that no gun was present during the assault. Defendant’s argument

ignores the statements made during the 911 recording and the deputy’s testimony regarding the

victim’s statements at the scene of the crime. The prosecutor did not state facts that were not in

evidence and did not commit error, plain or otherwise. Id.

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Defendant also argues that the prosecutor committed error by arguing that defendant had a

motive to fight the victim. Specifically, defendant challenges statements that the fight was about

money. Once again, however, the record supports the prosecutor’s argument regarding money.

During direct examination, the victim testified that, before defendant punched his face, they had a

conversation about money. Previously, the victim had testified that he had won $80 during the

card game that preceded the altercation. Thus, there was record support for the assertion that

defendant’s assault of the victim started because of money.

Next, defendant argues that the prosecutor committed error by referencing jealousy as a

motive for the fight. During his testimony, the victim repeatedly stated that he had some level of

jealousy regarding the interactions between defendant and Powell on the night in question. The

victim explained the jealousy as resulting from defendant and Powell’s previous relationship, from

which they had a child. Accordingly, when the prosecutor referenced jealousy as a motive for the

fight, this referred to the victim, and was well-supported by the testimony at trial. Consequently,

the prosecutor did not raise any facts that were not supported by evidence, and did not commit

error requiring reversal. Id.

Defendant next argues that the prosecutor committed error by inappropriately referring to

the victim’s statement to the police made on the night of the crime. In the testimony cited by

defendant, the prosecutor used the victim’s statement to police for impeachment purposes.

Specifically, while being examined by the prosecutor, the victim denied that he was kicked during

the fight and denied that one of the men attempted to drag him out of the house. The prosecutor

referenced the victim’s written statement to the police, which was inconsistent with this testimony.

The victim denied that he said he was being dragged, and claimed that he did not remember what

he said in the written statement, which was not admitted as substantive evidence. The prosecutor

was permitted to challenge the victim’s testimony based on his prior inconsistent statements in the

police report. MRE 613(a); MRE 607. The prosecutor’s decision to impeach the victim with his

prior written inconsistent statement, without admitting it as substantive evidence, was not an error.

Lastly, defendant makes a multitude of challenges to what he purports to be the

prosecutor’s closing argument. Defendant’s argument regarding these issues is without merit

because he is referencing the closing argument made by the prosecutor to Pollard-Christy’s jury.

Defendant’s jury was not present in the courtroom during all of those statements by the prosecutor.

Because none of the challenged statements were made in the case against defendant or heard by

his jury, the statements could not have caused defendant to be “denied a fair and impartial trial.”

People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007).

Finally, to the extent that any of the prosecutor’s statements, question, or arguments could

have been considered improper, they were minor enough not to affect defendant’s substantial

rights under a plain-error analysis. Carines, 460 Mich at 763. This is especially true here, where

the trial court instructed the jury that the lawyers’ statements and arguments were not evidence.

“Jurors are presumed to follow the court’s instructions, and instructions are presumed to cure most

errors.” Mullins, 322 Mich App at 173. Consequently, any error potentially committed by the

prosecutor was cured by the instruction, and thus, did not prejudice defendant or necessitate

reversal of his convictions. See Carines, 460 Mich at 763.

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D. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant, in his Standard 4 brief, argues that his trial counsel committed errors amounting

to constitutionally defective assistance of counsel, requiring reversal and a new trial. This

argument is without merit.

Although defendant moved this Court to remand the case for a Ginther hearing, this Court

denied defendant’s motion for remand. People v Childs, unpublished order of the Court of

Appeals, entered November 6, 2019 (Docket No. 346290). Because no Ginther hearing occurred,

our review is limited to mistakes apparent on the record. People v Payne, 285 Mich App 181, 188;

774 NW2d 714 (2009). “The denial of effective assistance of counsel is a mixed question of fact

and constitutional law, which are reviewed, respectively, for clear error and de novo.” People v

Schrauben, 314 Mich App 181, 189; 886 NW2d 173 (2016).

Defendant argues that his trial counsel was ineffective in a multitude of different ways.

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

and Michigan Constitutions.” Id. at 189-190. “However, effective assistance of counsel is

presumed, and the defendant bears a heavy burden of proving otherwise.” Id. at 190. To receive

a new trial based on ineffective assistance of counsel, a defendant must establish that counsel’s

representation fell below an objective standard of reasonableness and that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different. People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012). “When reviewing

defense counsel’s performance, the reviewing court must first objectively determine whether, in

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

professionally competent assistance.” People v Jackson (On Reconsideration), 313 Mich App

409, 431; 884 NW2d 297 (2015) (cleaned up). “Next, the defendant must show that trial counsel’s

deficient performance prejudiced his defense—in other words, that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. (cleaned up).

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

futile; nor will it second-guess matters of trial strategy. People v Thomas, 260 Mich App 450,

457; 678 NW2d 631 (2004). The defendant bears the burden of demonstrating both deficient

performance and prejudice, and the defendant also necessarily bears the burden of establishing the

factual predicate for his claim. People v Cooper, 309 Mich App 74, 80; 867 NW2d 452 (2015).

Defendant first argues that his trial counsel was ineffective for preventing defendant from

testifying on his own behalf. “A defendant’s right to testify in his own defense arises from the

Fifth, Sixth, and Fourteenth Amendments of the United States Constitution.” People v Bonilla-

Machado, 489 Mich 412, 419; 803 NW2d 217 (2011). “Although counsel must advise a defendant

of this right, the ultimate decision whether to testify at trial remains with the defendant.” Id. This

Court presumes that defense “counsel’s advice to defendant not to testify on his own behalf” is

sound trial strategy. People v Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991).

Defendant argues that his trial counsel was ineffective for essentially tricking him into not

testifying. Defendant argues that trial counsel reassured him that he would be able to testify right

up until the moment when he announced in open court that defendant would not be testifying.

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According to defendant, before that point in the proceedings, his trial counsel repeatedly promised

to help him prepare to testify, but never followed through on those promises. Then, at the last

possible moment, trial counsel shocked defendant by saying that defendant should not testify in

his own defense. Thus, defendant contends, he was essentially barred from testifying by his

counsel.

Defendant waived this argument, however, when he engaged in a colloquy with his trial

counsel while under oath. Defendant specifically stated that he was aware it was his own decision

not to testify, he had not been persuaded by counsel to forgo this right, and that he was willingly

and voluntarily choosing to remain silent. Waiver occurs when a defendant affirmatively approves

of an issue before the trial court, only to argue on appeal that there was error. Jackson, 313 Mich

App at 420. When waiver occurs, unlike forfeiture, any error is extinguished. People v Carter,

462 Mich 206, 215; 612 NW2d 144 (2000). Defendant waived this argument regarding his

counsel’s alleged ineffective assistance by stating under oath that it was his own personal decision

not to testify and that he was aware he could testify even if trial counsel recommended otherwise.

Id.

Next, defendant argues that trial counsel was ineffective for failing to call certain witnesses

who would have provided beneficial testimony. Specifically, he claims that four separate

witnesses could have testified that there was a plan to meet at the victim’s house to help the victim

move. “Decisions regarding what evidence to present and whether to call or question witnesses

are presumed to be matters of trial strategy, and this Court will not substitute its judgment for that

of counsel regarding matters of trial strategy.” People v Muhammad, 326 Mich App 40, 66; 931

NW2d 20 (2018) (cleaned up). “Furthermore, [t]he failure to call witnesses only constitutes

ineffective assistance of counsel if it deprives the defendant of a substantial defense.” People v

Anderson, 322 Mich App 622, 631; 912 NW2d 607 (2018) (cleaned up). “A substantial defense

is one that might have made a difference in the outcome of the trial.” Jackson, 313 Mich App at

432 (cleaned up).

This argument fails because defendant has not established the factual predicate for his

claim. He asserts that the four witnesses would have provided beneficial testimony to his case.

He does not provide any evidence, however, such as affidavits from those witnesses, regarding

what their testimony would have been if called as witnesses. Because defendant bears the burden

of establishing the factual predicate of his allegation of ineffective assistance of counsel, his failure

to provide any evidence in support of this argument is fatal to his claim. See Cooper, 309 Mich

App at 80.

Defendant next argues that trial counsel failed to admit evidence that the victim was not

bleeding, or to object to evidence regarding blood that was not supported by photographic

evidence. Defendant initially claims that trial counsel should have introduced evidence that the

shirt worn by defendant when he was arrested, which he also wore during the altercation, did not

have blood on it. Once again, defendant has failed to establish the factual predicate for this claim,

as he is required to do. See Cooper, 309 Mich App at 80. In particular, defendant has not provided

any evidence that he was arrested wearing a shirt with no blood on it. Moreover, because defendant

was not arrested at the scene of the crime, he also would have had to provide proof that he did not

change his shirt before being arrested. Additionally, even after all of that, defendant also would

have had to present proof that he was not wearing a coat over his shirt during the fight, especially

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considering that the fight happened in early January. Considering the lack of a factual predicate

for this claim, defendant has not provided any grounds for reversal. Id. Moreover, he has not

provided any support for an allegation that evidence of the shirt would have been probative of his

innocence, considering the possibilities that he was wearing a coat or had changed before being

arrested. Thus, in addition to the lack of a factual predicate, defendant has not provided any

argument that trial counsel’s failure to introduce evidence of the shirt he was wearing when

arrested denied him a substantial defense. See Jackson, 313 Mich App at 432.

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

admission of evidence that blood was present in the house, on the victim’s shirt, and coming from

the victim’s mouth. Defendant contends that the objection would have been sustained because

there were no photographs of the alleged blood. Defendant has not cited any law to suggest that

testimony regarding a fact is not admissible where the same fact could have been supported by

photographs, but was not. Deputy Scruggs and the victim’s grandmother both stated that they

observed blood on the walls of the house. Furthermore, Deputy Scruggs testified that the victim

was bleeding from his mouth and had blood on his shirt. The fact that there were not photographs

of that blood does not somehow render the witnesses’ testimony inadmissible. Lay witnesses are

permitted to testify about their “direct physical observations” and the “opinions they form as a

result” of those observations. People v Hanna, 223 Mich App 466, 475; 567 NW2d 12 (1997).

Failing to advance a meritless argument does not constitute ineffective assistance of counsel.

Ericksen, 288 Mich App at 201.

Defendant also argues that trial counsel was ineffective for failing to object to references

to a gun in the 911 recording and in the victim’s written statement to police. Defendant argues

that any and all evidence of the presence of a gun during the commission of a crime was

inadmissible because the district court refused to bind over the charge of possession of a firearm

during the commission of a felony (felony-firearm). Defendant is correct that the district court

refused to bind over the felony-firearm charge, finding that there was not probable cause that a

gun was involved in the crime. Defendant has not cited any law, however, that would support a

finding that evidence of the gun was rendered inadmissible by that decision of the district court.

Indeed, the prosecutor was permitted to cross-examine the victim based on his prior inconsistent

statements when he denied at trial that a gun was present during the assault. MRE 613(a); MRE

607. The 911 call was admissible under the excited-utterance exception to the hearsay rule. MRE

803(2). Deputy Scruggs’s testimony also reflected the victim’s statement that one of the assailants

had a gun on the night of the crime, and that evidence also was admissible. Consequently, any

objection to the evidence regarding the presence of a gun would not have been successful, and

failing to advance a meritless argument does not constitute ineffective assistance of counsel.

Ericksen, 288 Mich App at 201.

Next, defendant argues that trial counsel should have objected to the prosecutor’s opening

statement and closing argument. In support of that argument, defendant once again cites to the

facts alleged in his argument regarding prosecutorial error. Because none of those arguments had

merit, and indeed, many relied on statements by the prosecutor that were not made to defendant’s

jury, defendant’s claim of ineffective assistance of counsel must also fail because any objection

would have been overruled. Id.

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Lastly, defendant contends that even if any single error was not sufficient to warrant relief,

the cumulative effect of the errors necessitated reversal. “It is true that the cumulative effect of

several errors can constitute sufficient prejudice to warrant reversal where the prejudice of any one

error would not.” People v LeBlanc, 465 Mich 575, 591; 640 NW2d 246 (2002). “However, in

this case we have found no specific errors in trial counsel’s performance. Thus, there are no

individual errors that can be aggregated to form a cumulative effect.” People v Unger, 278 Mich

App 210, 258; 749 NW2d 272 (2008). Consequently, defendant’s argument regarding cumulative

errors is also without merit. Id.

E. SENTENCING ISSUES

Defendant argues that he is entitled to be resentenced because the prosecutor failed to

properly seek a fourth-offense-habitual-sentence enhancement. In addition, defendant argues that

the trial court miscalculated the minimum-sentencing-guidelines range, abused its discretion by

ordering defendant to serve consecutive sentences for first-degree home invasion and AWIGBH,

and ordered defendant to pay an unconstitutional tax.

To the extent appropriate, “[t]his issue is reviewed de novo as a question of law because it

involves the interpretation and application of statutory provisions and court rules.” People v Head,

323 Mich App 526, 542; 917 NW2d 752 (2018). For preserved issues “[u]nder the sentencing

guidelines, the circuit court’s factual determinations are reviewed for clear error and must be

supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d

340 (2013). “Clear error is present when the reviewing court is left with a definite and firm

conviction that an error occurred.” People v McChester, 310 Mich App 354, 358; 873 NW2d 646

(2015) (cleaned up). “Whether the facts, as found, are adequate to satisfy the scoring conditions

prescribed by statute, i.e., the application of the facts to the law, is a question of statutory

interpretation, which an appellate court reviews de novo.” Hardy, 494 Mich at 438. When the

issue is preserved, “whether a trial court may impose consecutive sentences is a question of

statutory interpretation, which is reviewed de novo.” People v Clark, 315 Mich App 219, 224;

888 NW2d 309 (2016). Further, “the decision to impose a consecutive sentence when not

mandated by statute is reviewable for an abuse of discretion.” People v Norfleet, 317 Mich App

649, 664; 897 NW2d 195 (2016). “We review de novo constitutional challenges and questions of

statutory interpretation.” People v Hrlic, 277 Mich App 260, 262; 744 NW2d 221 (2007) (citations

omitted). The record is clear that all of defendant’s sentencing challenges are preserved, but for

defendant’s challenge to the payment of the alleged unconstitutional tax. We review unpreserved

sentencing issues for plain error. People v Foster, 319 Mich App 365, 371; 901 NW2d 127 (2017).

1. HABITUAL-OFFENDER NOTICE

Defendant argues that the trial court was not permitted to sentence him as a fourth-offense

habitual offender because the prosecutor violated MCL 769.13. Under that statute, a prosecutor

must file a written notice of intent to seek a sentence enhancement “within 21 days after the

defendant’s arraignment on the information charging the underlying offense or, if arraignment is

waived, within 21 days after the filing of the information charging the underlying offense.” MCL

769.13(1); see also MCR 6.112(F). The prosecutor must also serve the written notice on defendant

or his counsel within that same time period, and must file a proof of service with the trial court.

MCL 769.13(2). “The purpose of the notice requirement is to provide the accused with notice, at

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an early stage in the proceedings, of the potential consequences should the accused be convicted

of the underlying offense.” Head, 323 Mich App at 543 (cleaned up).

Because defendant waived the arraignment in this case, the 21-day period began to run

when the prosecutor filed the information. MCL 769.13(1). The prosecutor filed the information

charging defendant with first-degree home invasion, AWIGBH, and assault and battery on

February 14, 2018. Therefore, for the purposes of MCL 769.13(1) and (2), the prosecutor had

until March 7, 2018, to both file the notice of intent with the trial court and to serve it on defendant.

The prosecutor filed the notice of intent to seek a sentence enhancement with the trial court on

February 12, 2018. The notice of intent indicated that defendant would be subject to a 25-year

minimum sentence if he were convicted of AWIGBH, and listed all of defendant’s prior

convictions. The prosecutor served the notice on defendant’s trial counsel on February 16, 2018,

and filed the proof of service with the trial court later that same day. At the sentencing hearing,

defendant’s trial counsel stated on the record that he had received the notice of intent to seek the

habitual-offender sentence enhancement. The prosecutor clearly complied with MCL 769.13(1)

and (2), and defendant’s argument is without merit. See Head, 323 Mich App at 542-543.

Nonetheless, defendant focuses his argument on the word “after” in the statutory language.

MCL 769.13(1). Specifically, defendant argues that a notice of intent must be filed with the trial

court after the general information charging the crimes. Because the prosecutor filed the notice of

intent in this case before the general information, defendant reasons that the prosecutor violated

the statute. When engaging in statutory interpretation, the goal “is to discern and give effect to the

intent of the Legislature.” People v Williams, 491 Mich 164, 172; 814 NW2d 270 (2012) (cleaned

up). That goal is achieved “by reviewing the words of a statute as they have been used by the

Legislature.” Id. “When a statute’s language is clear and unambiguous, this Court will enforce

that statute as written.” Id. “This Court must give effect to every word, phrase, and clause and

avoid an interpretation that would render any part of the statute surplusage or nugatory.” People

v Cunningham, 496 Mich 145, 154; 852 NW2d 118 (2014) (cleaned up).

As relevant to this case, where the arraignment was waived, MCL 769.13(1) provides that

the prosecutor is permitted to “seek to enhance the sentence of the defendant . . . by filing a written

notice of his or her intent to do so . . . within 21 days after the filing of the information charging

the underlying offense.” (Emphasis added). By focusing on the word “after,” defendant has

misconstrued the intent expressed by the plain and unambiguous language of the statute.

Specifically, the word “after” is not being used to indicate that the notice of intent must be filed

after the general information. Instead, it is part of the phrase “within 21 days after,” which sets

the deadline for the notice of intent to be filed. Focusing solely on the word “after,” without

considering its context, fails to “give effect to every word, phrase, and clause” of a statute.

Cunningham, 496 Mich at 154 (cleaned up). So long as the prosecutor filed the notice of intent

before March 7, 2018—21 days after the general information was filed—the prosecutor complied

with the statute. In this case, the prosecutor filed the notice of intent on February 12, 2018, which

plainly complies with MCL 769.13(1). Consequently, defendant’s argument is without merit.

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2. CALCULATION OF OFFENSE VARIABLES

Defendant next challenges the scoring of several offense variables (OVs) for his AWIGBH

sentence, asserting that the minimum-sentencing-guidelines range should have been 34 to 134

months, instead of 38 to 152 months. Defendant’s argument is without merit.

In sentencing defendant for the AWIGBH conviction, the trial court calculated defendant’s

total OV score at 70 points, placing him in OV-Level V for scores between 50 and 74 points. MCL

777.65. On appeal, defendant contends that OV 3 should have been scored at five points instead

of 10 points, OV 4 should have been scored at zero points instead of 10 points, and OV 9 should

have been scored at zero points instead of 10 points. Because a defendant is only entitled to

resentencing where an improper OV score affects the guidelines range, People v Francisco, 474

Mich 82, 92; 711 NW2d 44 (2006), defendant must be successful on all of his challenges to warrant

resentencing. Thus, if only one of his OV-score challenges lacks merit, he is not entitled to be

resentenced because his guidelines range will not change absent a reduction of 25 points. Id.;

MCL 777.65.

“When challenged, a sentencing factor need only be proved by a preponderance of the

evidence.” People v Earl, 297 Mich App 104, 109; 822 NW2d 271 (2012). “Offense variables

must be scored giving consideration to the sentencing offense alone, unless otherwise provided in

the particular variable.” People v McGraw, 484 Mich 120, 133; 771 NW2d 655 (2009). “When

calculating the sentencing guidelines, a court may consider all record evidence, including the

contents of a PSIR, plea admissions, and testimony presented at a preliminary examination.”

McChester, 310 Mich App at 358. “The trial court may rely on reasonable inferences arising from

the record evidence to sustain the scoring of an offense variable.” Earl, 297 Mich App at 109.

Defendant first challenges his score of 10 points for OV 3, arguing that it should have been

scored at five points. MCL 777.33 governs the assessment of points for OV 3, and it provides that

a trial court must assess 10 points when “[b]odily injury requiring medical treatment occurred to a

victim.” MCL 777.33(1)(d). The statute directs a trial court to assess five points when “[b]odily

injury not requiring medical treatment occurred to a victim.” MCL 777.33(1)(d). If “[n]o physical

injury occurred to a victim,” a trial court must assess zero points for OV 3. MCL 777.33(1)(f).

For purposes of OV 3, a bodily injury “encompasses anything that the victim would, under the

circumstances, perceive as some unwanted physically damaging consequence.” People v

McDonald, 293 Mich App 292, 298; 811 NW2d 507 (2011). An “injury requiring medical

treatment” refers to “the necessity for treatment and not the victim’s success in obtaining

treatment.” MCL 777.33(3).

In this case, the victim testified that he did not seek medical treatment for his injuries. The

photographs admitted into evidence, however, showed that the victim had significant bruising and

swelling on his head and was bleeding from his mouth. The victim suffered redness and swelling

above his left eye, and a large knot with redness near his right temple. In light of the photographs

and testimony regarding the victim’s physical state after the assault, the trial court was well-

supported in finding, by a preponderance of the evidence, that the victim suffered “bodily injury

requiring medical treatment.” MCL 777.33(1)(d). Although the victim did not seek medical

treatment for his injuries, it was sufficiently clear from the evidence provided to the trial court that

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the injuries suffered by the victim here warranted medical treatment, even if they never sought or

obtained such treatment.

Defendant next challenges the score of 10 points for OV 4. Under MCL 777.34(1), OV 4

is properly scored at 10 points when “[s]erious psychological injury requiring professional

treatment occurred to a victim.” MCL 777.34(1)(a). “In making this determination, the fact that

treatment has not been sought is not conclusive.” MCL 777.34(2). “We have upheld a trial court’s

assessment of 10 points for OV 4 when the victim suffered personality changes, anger, fright, or

feelings of being hurt, unsafe, or violated.” Schrauben, 314 Mich App at 197 (cleaned up). The

trial court is also permitted to rely on the victim’s demeanor during trial to determine whether the

victim suffered a psychological injury. Id.

In the present case, the trial court noted during sentencing that the victim’s demeanor on

the witness stand suggested that he suffered a psychological injury. Further, in the PSIR, the victim

stated that he had recurring nightmares and regularly thought about the assault. In considering that

evidence, the trial court did not clearly err by inferring that the victim had suffered a “serious

psychological injury.” MCL 777.34(1)(a). The victim’s statement that he suffered from recurring

nightmares about the assault and thought about it often amounted to an “expression of fearfulness,”

which this Court has held to be sufficient to score OV 4 at 10 points. Earl, 297 Mich App at 109.

Further, having not been present at the trial, this Court must defer to the trial court’s assessment

of the victim’s demeanor when testifying, which the trial court was permitted to consider.

Schrauben, 314 Mich App at 197. Moreover, under MCL 777.34(2), the trial court’s decision to

score OV 4 at 10 points is not erroneous simply because there was no evidence that the victim

actually sought or received “professional treatment.” Therefore, the trial court did not err in

finding that a preponderance of the evidence supported scoring OV 4 at 10 points. MCL

777.34(1)(a).

Next, defendant challenges the trial court’s decision to score OV 9 at 10 points. This

offense variable addresses the number of victims. MCL 777.39(1). A score of 10 points is

warranted when “[t]here were 2 to 9 victims who were placed in danger of physical injury or

death.” MCL 777.39(1)(c). The trial court is required to “[c]ount each person who was placed in

danger of physical injury or loss of life or property as a victim.” Furthermore, “[p]oints assessed

under OV 9 must be based solely on the defendant’s conduct during the sentencing offense.”

People v Rodriguez, 327 Mich App 573, 581-582; 935 NW2d 51 (2019). Even where only one

person was assaulted or robbed, a score of 10 points for OV 4 may be warranted where other

people were in close proximity to the crime. Id. at 582.

Here, defendant argues that there was only victim of his AWIGBH conviction, thereby

undermining the score of 10 points for OV 4. The record reflects, however, that the victim’s

grandmother was nearby when the assault occurred. Indeed, she testified that she observed the

fight within her home and even attempted to pull defendant and his cohorts off of her grandson.

In the 911 recording, which was admitted as evidence, she told the operator that she saw her

grandson being assaulted in her own living room. Therefore, the trial court properly considered

the grandmother as a victim because she was in close proximity to the crime. MCL 777.39(2)(b);

Id. Because there were two victims of defendant’s commission of AWIGBH, the trial court did

not err in scoring 10 points for OV 4. MCL 777.39(1)(c).

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The trial court properly scored OVs 3, 4, and 9, and defendant is not entitled to

resentencing.

3. CONSECUTIVE SENTENCES

Defendant next argues that the trial court abused its discretion by sentencing him to serve

his sentences for AWIGBH and first-degree home invasion consecutively. “In Michigan,

concurrent sentencing is the norm, and a consecutive sentence may be imposed only if specifically

authorized by statute.” People v DeLeon, 317 Mich App 714, 721; 895 NW2d 577 (2016) (cleaned

up). Such a statute exists for first-degree home invasion convictions: “The court may order a term

of imprisonment imposed for home invasion in the first degree to be served consecutively to any

term of imprisonment imposed for any other criminal offense arising from the same transaction.”

MCL 750.110a(8). That statute’s “use of the word ‘may’ makes clear that the decision is a matter

left to the discretion of the trial court.” Buie, 491 Mich at 319-320 (cleaned up).

“Although consecutive sentencing lengthens the total period of imprisonment, it does not

increase the penalty for any specific offense.” DeLeon, 317 Mich App at 726. Therefore, “the

decision to impose a consecutive sentence when not mandated by statute is reviewable for an abuse

of discretion.” Norfleet, 317 Mich App at 664. Consequently, “trial courts imposing one or more

discretionary consecutive sentences are required to articulate on the record the reasons for each

consecutive sentence imposed.” Id. at 654. When ordering consecutive sentences, the trial court

is required to “give particularized reasons—with reference to the specific offenses and the

defendant.” Id. at 666. The trial court is not permitted to speak “only in general terms, stating that

it took into account defendant’s ‘background, his history, [and] the nature of the offenses

involved.’ ” Id.

The trial court specifically found that consecutive sentencing with regard to the convictions

for home invasion and AWIGBH was warranted in light of defendant’s “longstanding criminal

history, including serial violations of parole and increasingly aggressive behavior.” Specifically,

the trial court noted that defendant had a significant criminal history, which involved repeated

violations of parole. Indeed, the trial court considered that, at the time defendant committed the

crimes for which he was being sentenced, he was on absconder status for his parole. The trial

court also noted that the crime committed was egregious, citing that it was an “attack,” an “invasion

of a home,” was “very serious and grave,” and involved “predatory conduct.” The trial court

expressed concern that defendant’s criminal behavior was escalating as time progressed, becoming

increasingly assaultive and aggressive. The trial court also stated that defendant’s behavior was

“beyond the realm of decency in our society.” As required by Norfleet, 317 Mich App at 666, the

trial court did not speak generally, but provided particularized reasons, and referenced defendant

and the specific crimes of which he was convicted. Thus, the trial court did not abuse its discretion

in ordering defendant to serve his sentences consecutively. Id.

4. UNCONSTITUTIONAL TAX

Finally, defendant argues that the trial court relied on an unconstitutional statute, MCL

769.1k, to impose the $500 fee as part of his sentence. Defendant makes the same argument that

was made in People v Cameron, 319 Mich App 215; 900 NW2d 658 (2017). As defendant

acknowledges, we are bound by the decision in Cameron, in which the panel ruled:

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MCL 769.1k(1)(b)(iii) is a revenue-generating measure, and the courts

forcibly impose the assessment against unwilling individuals. Therefore, it is a tax

rather than a governmental fee. Although the statute does not expressly state that

it imposes a tax, the statute is neither obscure nor deceitful, and therefore, it does

not run afoul of the Distinct Statement Clause of Michigan’s Constitution. Finally,

because a trial court must establish a factual basis for its assessment of costs to

ensure that the costs imposed are reasonably related to those incurred by the court

in cases of the same nature, the legislative delegation to the trial court to impose

and collect the tax contains sufficient guidance and parameters so that it does not

run afoul of the separation-of-powers provision of Const 1963, art 3 § 2. [Id. at

236.]

We are bound by the decision in Cameron. MCR 7.215(J)(1). Therefore, defendant’s argument

on appeal is without merit.

Affirmed.

/s/ Michael J. Riordan

/s/ Karen M. Fort Hood

/s/ Brock A. Swartzle