COA 365744 PEOPLE OF MI V ANTHONY JOHNTIL WEBB Opinion - Per Curiam - Unpublished 1/22/2026

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UNPUBLISHED
January 22, 2026
1:08 PM
v No. 365744
Kent Circuit Court
ANTHONY JOHNTIL WEBB, LC No. 22-007819-FC
Defendant-Appellant.
Before: RIORDAN, P.J., and MURRAY and MALDONADO, JJ.
PER CURIAM.
Defendant appeals by right his convictions of assault with intent to murder (AWIM),
MCL 750.83; felon in possession of a firearm (felon-in-possession), MCL 750.224f; and
possession a firearm during the commission of a felony (felony-firearm), MCL 750.227b(1). On
appeal, defendant argues that he received ineffective assistance of counsel, the trial court erred by
failing to orally instruct the jury following closing arguments, the trial court erred when sentencing
defendant, and the prosecution committed misconduct. We affirm his convictions and sentence,
but remand to the trial court for the ministerial task of correcting his presentence investigation
report (PSIR).
I. BACKGROUND
The case involves the shooting of Zachary DeGroot on July 8, 2022, in Grand Rapids.
DeGroot was shot multiple times while walking on Plymouth Avenue. A witness, Lindsay Bower,
recorded defendant fleeing the scene. The prosecution’s theory was that defendant mistook
DeGroot for Brandon Bechtold, who had previously shot and killed defendant’s son on July 4,
2022. Bower identified defendant in a photo lineup on the day of the shooting.
Detective Amanda Johnson interviewed DeGroot in the hospital on July 13, 2022.
DeGroot described the shooter as a bald, black man, approximately 30 to 35 years old, who accused
DeGroot of killing his “brother” before shooting him. DeGroot did not know the shooter but
speculated that he was mistaken for someone involved in the other shooting. Detective Johnson
confirmed that the shooter was identified through a video recording.

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Defendant was charged with AWIM, felon-in-possession, and felony-firearm. The trial
began in February 2023, with the jury receiving instructions on the elements of the charges and
the presumption of innocence. The prosecution presented 911 recordings from July 8, 2022,
including a call from defendant’s daughter.
DeGroot testified, identifying defendant as the shooter, despite losing his glasses during
the incident. Law enforcement and other witnesses provided testimonies about the shooting,
including descriptions of the suspect and the vehicle involved. Crime-scene technician Daryl
Clemens presented photographic evidence.
The prosecution presented a video recorded by Bower, showing defendant running from
the scene. Detective Johnson obtained a search warrant for defendant’s phone, revealing a text
message from Antionette Evans, the mother of defendant’s murdered son, indicating that Bechtold
had been arrested out of state. The prosecution argued that defendant’s actions were premeditated.
On the other hand, the defense argued that defendant had no motive to kill DeGroot, as
defendant knew Bechtold was in custody. The defense also challenged the reliability of eyewitness
identifications and presented Sarah Sella’s testimony, which contradicted other witness accounts.
The defense contended that the shooting was a drive-by involving different individuals. Detective
Johnson’s rebuttal testimony contradicted defendant’s account of his route on the day of the
shooting.
The jury found defendant guilty on all counts. The trial court sentenced defendant to serve
two years’ imprisonment for the felony-firearm conviction, followed by 25 to 80 years’
imprisonment for the AWIM conviction, and 6 to 80 years’ imprisonment for the felon-in-
possession conviction.
Defendant moved for a new trial, claiming ineffective assistance of counsel. The motion
argued that defense counsel failed to object to DeGroot’s in-court identification and did not call
an expert witness on eyewitness reliability. The trial court denied the motion, but this Court
remanded the case to the trial court for a Ginther1 hearing.2
During the Ginther hearing, Daniel Roberts, an assistant construction engineer with the
Michigan Department of Transportation (MDOT), testified that road construction did not occur in
2022, contradicting Detective Johnson’s testimony. In addition, Dr. Colleen Seifert provided
expert testimony on the unreliability of eyewitness memory and the impact of stress and suggestion
on identifications. The trial court denied defendant’s motion for a new trial.
The trial court also denied defendant’s motion to reopen proofs and reconsider its order,
despite evidence suggesting defense counsel was aware of potential objections to the identification.
1 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2 People v Webb, unpublished order of the Court of Appeals, entered July 24, 2024 (Docket
No. 365744).

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Defendant now appeals.
II. ANALYSIS
A. EYEWITNESS TESTIMONY
First, defendant argues that defense counsel was ineffective for failing to move to suppress
DeGroot’s first-time-in-court identification and for failing to present expert testimony about the
unreliability of the identification.
“Whether a defendant has been denied the effective assistance of counsel is a mixed
question of fact and constitutional law.” People v Solloway, 316 Mich App 174, 187; 891 NW2d
255 (2016). This Court reviews for clear error a trial court’s factual findings and reviews de novo
questions of constitutional law. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012).
Clear error exists when this Court is left with a definite and firm conviction that the trial court
made an error. People v Buie, 491 Mich 294, 315-316; 817 NW2d 33 (2012).
Defendant’s right to counsel is guaranteed by the United States and Michigan
Constitutions. US Const, Am VI; Const 1963, art 1, § 20. This right includes the right to the
effective assistance of counsel. People v Cline, 276 Mich App 634, 637; 741 NW2d 563 (2007).
To establish a claim of ineffective assistance of counsel, defendant must show that: (1) counsel’s
performance was deficient, and (2) the deficient performance prejudiced the defense. People v
Taylor, 275 Mich App 177, 186; 737 NW2d 790 (2007). Defense counsel’s performance is
deficient if it fell below an objective standard of professional reasonableness. People v Jordan,
275 Mich App 659, 667; 739 NW2d 706 (2007). Defendant bears a heavy burden to show that
counsel made errors so serious that counsel was not performing as guaranteed by the Sixth
Amendment, and defendant must overcome a strong presumption that counsel’s performance
constituted sound trial strategy. People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001).
Defense counsel’s performance prejudiced the defense if there is a reasonably probability that, but
for counsel’s error, the result of the proceeding would have been different. Jordan, 275 Mich App
at 667. A defendant must establish the factual predicate for his or her claims of ineffective
assistance of counsel. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
Defendant argues that defense counsel’s failure to object to DeGroot’s first-time-in-court
identification was deficient when Detective Johnson told DeGroot that officers had arrested the
shooter, who was caught on video. In other words, defendant argues, the in-court identification
was tainted because the police essentially told DeGroot beforehand that the correct person had
been arrested. In People v Posey, 512 Mich 317, 337; 1 NW3d 101 (2023) (opinion by BOLDEN,
J.),3 our Supreme Court addressed the “concerns about unnecessary suggestiveness associated with
first-time-in-court identification evidence.” The Court held that “an unnecessary first-time-in-
court identification procured by the prosecution—a state actor—implicates a defendant’s due-
process rights in the same manner as an in-court identification that is tainted by an unduly
3 See People v Purdle, ___ Mich App ___, ___; ___ NW3d ___ (2024) (Docket No. 353821); slip
op at 4 (stating that, although the lead opinion in Posey was not technically binding, this Court
will follow it in the interests of judicial economy).

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suggestive out-of-court identification procedure employed by the police,” and “trial courts must
consider reliability factors such as those at issue when an in-court identification is tainted by an
unduly suggestive out-of-court identification procedure.” Id. at 339-340. Ultimately, the Court
assumed that the first-time-in-court identification violated the defendant’s right to due process, but
determined that the defendant was not entitled to a new trial because he did not demonstrate plain
error or ineffective assistance of counsel. Id. at 340. The Court stated that it was “not
constitutionally deficient for trial counsel to fail to raise a challenge based on a desired change in
the law.” Id. at 342 n 10.
The Court issued Posey after defendant’s trial. Defendant argues on appeal, however, that
even before Posey, defense counsel had a basis to object to DeGroot’s identification, but defense
counsel did not research the issue and was not familiar with the relevant law.
DeGroot’s identification was tainted by Detective Johnson telling him that the shooter had
been caught on video and arrested. See People v Gray, 457 Mich 107, 111; 577 NW2d 92 (1998).
It is true that defense counsel cannot be faulted for failing to raise a meritless objection. People v
Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010). In this case, however, Detective
Johnson’s statements to DeGroot during the hospital interview may have significantly impacted or
reduced the accuracy of DeGroot’s in-court identification seven months later through the impact
of postevent contamination and confirmation bias, as our Supreme Court suggested in Gray.
Detective Johnson’s statements indicated to DeGroot that there was no doubt that the shooter had
been arrested because there was a witness who captured the incident on video. In fact, Bower’s
video only recorded defendant after the shooting and, although powerful evidence, could
theoretically have missed recording the actual shooter.
Despite defense counsel’s experience indicating to him that in-court identifications were
problematic, he did not think that gave him a basis to object to the identification in this case.
However, there were, as defendant argues on appeal, factors that suggest that DeGroot’s
identification was unreliable. DeGroot lost his glasses during the incident, and DeGroot was, of
course, likely under significant stress in the situation. Dr. Siefert testified that traumatic or stressful
situations lessen the accuracy of an eyewitness. DeGroot also did not know defendant, and it is
more difficult for people to accurately identify people unknown to them, according to Dr. Siefert.
Further, the issues of cross-racial identification and the weapons-focus may have impacted
DeGroot’s ability to accurately identify the shooter. Considering the combination of Detective
Johnson’s statements to DeGroot with the suggestiveness of DeGroot seeing defendant for the first
time at trial, it fell below an objective standard of reasonableness for defense counsel not to object
to the identification, as that objection may have been successful.
Arguably, it also fell below an objective standard of reasonableness for defense counsel
not to at least consult with an expert witness regarding eyewitness identification. Although “an
attorney’s selection of an expert witness may be a paradigmatic example of trial strategy, that is
so only when it is made after thorough investigation of the law and facts in a case.” People v
Ackley, 497 Mich 381, 390; 870 NW2d 858 (2015) (cleaned up). As defendant argues on appeal,
defense counsel lacked knowledge about the science of eyewitness identification. An expert
witness could have explained that DeGroot’s confidence was not necessarily predictive of his
accuracy. But see People v Kowalski, 492 Mich 106, 143; 821 NW2d 14 (2012) (“[Q]uestions of
eyewitness identification, fading memories, witnesses’ body language, and the like involve

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obvious human behavior from which jurors can make commonsense credibility determinations.”)
(quotation marks and citation omitted). Thus, although defense counsel effectively cross-
examined the witnesses, and although our Supreme Court strongly implied in Kowalski that expert
testimony typically is not necessary regarding eyewitness identification, when both DeGroot and
Bower were going to identify defendant as the shooter, we may accept for the purposes of this
appeal that it was not objectively reasonable for defense counsel to fail to at least consult with an
expert on how to contest these identifications.
Defendant must still demonstrate prejudice by these errors, however, and defendant cannot
show that either error, or a combination of them, prejudiced him. There is no reasonable
probability that a different outcome would have occurred even if DeGroot’s identification had been
suppressed or defendant presented expert testimony regarding eyewitness identification. See
Jordan, 275 Mich App at 667.
First, defendant conceded at trial that he was the person shown in Bower’s recording. As
defendant argues on appeal, the jury still had to determine whether defendant, shown running away
from the scene of the incident, was the person who shot DeGroot. Defense counsel effectively
cross-examined Bower, including about her inability to see the entire incident. Moreover, Bower
saw defendant shoot from the car. Although the lapse in time from the incident to trial may reduce
the accuracy of DeGroot’s first-time-in-court identification, Bower immediately and confidently
identified defendant in a photo lineup the same day as the shooting. Defendant argues that Bower’s
identification was the result of seeing defendant running after the shooting, but Bower testified
specifically about seeing defendant shooting the gun. Further, defendant’s daughter and Evans
saw DeGroot, whom they thought was Bechtold, just minutes before the shooting. And, even if
an additional witness did not identify defendant at trial, his description of the shooter at the time
of the shooting does not rule out defendant. The jury had the opportunity to hear Sella’s testimony
and determined that defendant was the shooter. Therefore, considering the evidence connecting
defendant to the crime, defendant cannot demonstrate a reasonable probability of a different
outcome had defense counsel objected to DeGroot’s identification or called an expert witness.
B. REBUTTAL TESTIMONY
Next, defendant argues that defense counsel was ineffective for failing to object to
Detective Johnson’s rebuttal testimony.
The Confrontation Clause of the Sixth Amendment to the United States Constitution
“prohibits the admission of out-of-court statements that are testimonial in nature unless the
declarant was unavailable at trial and the defendant had a prior opportunity to cross-examine the
declarant.” People v Clark, 330 Mich App 392, 432-433; 948 NW2d 604 (2019). “ ‘Hearsay’ is
a statement, other than the one made by the declarant while testifying at the trial or hearing, offered

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in evidence to prove the truth of the matter asserted.” MRE 801(c).4 “Hearsay is not admissible
except as provided by these rules.” MRE 802.
First, defense counsel’s failure to object to Detective Johnson’s rebuttal testimony
constituted deficient performance. Detective Johnson was testifying about what her coworker told
her that an MDOT employee told the coworker. This was hearsay, and because defense counsel
did not object, the prosecution did not raise any possible exception to the rule against hearsay or
address how the testimony did not violate the Confrontation Clause. And, Detective Johnson’s
rebuttal testimony was incorrect, as the prosecution concedes. Roberts, of MDOT, testified at the
Ginther hearing that the underpass was open at the time of the shooting, rather than closed as
Detective Johnson testified. Accordingly, defendant could had driven the route that he testified
driving to Evans’s apartment. Instead, the prosecution was able to argue, after Detective Johnson’s
improper rebuttal testimony, that defendant was not telling the truth about his driving route.
Defense counsel thought that defendant’s route to Evans’s home was a collateral matter.
The route, however, determined whether defendant would have come across DeGroot by accident.
Further, it was relevant to the credibility and accuracy of defendant’s testimony. There was no
strategic reason for defense counsel not to object to the testimony when it was clear hearsay, and
he was deficient in this regard. See Trakhtenberg, 493 Mich at 143.
However, there is not a reasonable probability that the error affected the outcome of the
proceedings. As previously discussed, the evidence against defendant, including his concession
that he was at the scene of the shooting, as well as his apparent motive regarding the murder of his
son, supported the jury’s verdict. Moreover, the prosecution also elicited from defendant that he
did not go further north than an identified bus stop on Plymouth Avenue, but defendant actually
was further north than the bus stop, as the prosecution argues in closing on the basis of Bower’s
video. Therefore, defendant was not denied effective assistance of counsel and is not entitled to a
new trial.
C. JURY INSTRUCTIONS
Next, defendant argues that the trial court erred by failing to provide final oral instructions
to the jury about the presumption of innocence, burden of proof, reasonable doubt, and the
elements of the offenses. Alternatively, defendant argues that defense counsel was ineffective for
failing to object to the manner of final jury instructions.
First, the prosecution argues that defendant waived this claim of error by approving the
instructions. An affirmative statement that there are no objections to jury instructions constitutes
express approval of the instructions and waives review on appeal. See People v Matuszak, 263
Mich App 42, 57; 687 NW2d 342 (2004). Our Supreme Court has addressed the difference
between waiver and forfeiture as follows:
4 The Michigan Rules of Evidence were substantially amended on September 20, 2023, effective
January 1, 2024. See ADM File No. 2021-10, 512 Mich lxiii (2023). We rely on the rules as they
were at the time of defendant’s trial.

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Waiver has been defined as the intentional relinquishment or abandonment
of a known right. It differs from forfeiture, which has been explained as the failure
to make the timely assertion of a right. One who waives his rights under a rule may
not then seek appellate review of a claimed deprivation of those rights, for his
waiver has extinguished any error. Mere forfeiture, on the other hand, does not
extinguish an error. [People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000)
(quotation marks and citations omitted).]
In this case, defense counsel expressed having no objections to the jury instructions. As
defendant argues on appeal, however, defense counsel’s approval could have been related only to
the content of the jury instructions, and, although at that point, defense counsel could have
requested oral instructions, it is not clear that defendant was expressly approving the trial court’s
decision to only provide the written instructions. Accordingly, defendant’s challenge to the jury
instructions was forfeited, rather than waived.
We review unpreserved errors for plain error affecting substantial rights. People v
Kowalski, 489 Mich 488, 505; 803 NW2d 200 (2011). “Plain error affected the defendant’s
substantial rights if (1) there was an error, (2) the error was clear or obvious, and (3) the error
prejudiced the defendant.” People v Heft, 299 Mich App 69, 78-79; 829 NW2d 266 (2012). To
warrant relief, a plain error must have “resulted in the conviction of an actually innocent defendant
or seriously affected the fairness, integrity or public reputation of judicial proceedings.” People v
Walker, 504 Mich 267, 276; 934 NW2d 727 (2019).
The trial court must properly instruct a jury. People v Czuprynski, 325 Mich App 449, 456;
926 NW2d 282 (2018). MCR 2.513(N)(1) provides that, after closing arguments, the trial “court
must orally instruct the jury as required and appropriate, but at the discretion of the court, and on
notice to the parties, the court may orally instruct the jury before the parties make closing
argument.” Even before MCR 2.513 was amended to include “orally,” our Supreme Court held in
People v Traver, 502 Mich 23, 40; 917 NW2d 260 (2018), that a trial court must provide oral
instructions. The Court also determined that, because there was not a complete failure to instruct
the jury, the error was nonstructural and “subject to a waiver analysis.” Id. at 40 n 7. Since that
time, the Court amended MCR 2.513 in response to the Traver decision. See Staff Comment to
2019 Amendment of MCR 2.513(N)(1).
In this case, it was error for the trial court to fail to orally instruct the jury, although it is
not a structural error requiring automatic reversal. At the beginning of trial, the trial court properly
instructed the jury, through oral instructions, on the elements of the offense and reasonable doubt,
the burden of proof, and the presumption of innocence. Further, the handout explained these
concepts, and the trial court directed the jury to the handout at the close of trial. Defendant has
not demonstrated that the error prejudiced defendant, see Heft, 299 Mich App at 79, or that it
“resulted in the conviction of an actually innocent defendant or seriously affected the fairness,
integrity or public reputation of judicial proceedings,” Walker, 504 Mich at 276.
Because defendant cannot demonstrate that the lack of oral instructions at the completion
of trial prejudiced him, even if this Court determined that defendant waived the issue, defendant
cannot demonstrate that he received ineffective assistance of counsel in this regard. Defendant did

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not include this challenge in his motion for new trial. Therefore, this issue is not preserved and
reviewed for errors apparent on the record. See People v Unger, 278 Mich App 210, 253; 749
NW2d 272 (2008). It fell below an objective standard of reasonableness for defense counsel not
to request that the trial court orally instruct the jury after closing arguments when the requirement
for oral instructions is clear. See MCR 2.513(N)(1); Traver, 502 Mich at 43. As explained,
however, there is no reasonable probability of a different outcome had the jury heard the oral
instructions. See Jordan, 275 Mich App at 667.
D. SENTENCING
Defendant also argues that the trial court erred by assessing 50 points for OV 6 and that his
PSIR erroneously includes points for OV 17.
We review de novo whether the trial court properly interpreted and applied the sentencing
guidelines. People v McGraw, 484 Mich 120, 123; 771 NW2d 655 (2009). We review for clear
error, however, a trial court’s factual findings under the sentencing guidelines, and the findings
must be supported by a preponderance of the evidence. People v Hardy, 494 Mich 430, 438; 835
NW2d 340 (2013). A defendant is entitled to resentencing when the trial court made an error in
identifying the appropriate guidelines range. People v Francisco, 474 Mich 82, 90-91; 711 NW2d
44 (2006).
OV 6 addresses an offender’s intent to kill or injure a person. MCL 777.36(1). The trial
court properly assigns 50 points if the offender had a premeditated intent to kill.
MCL 777.36(1)(a). The trial court properly assigns 25 points if “[t]he offender had
unpremeditated intent to kill, the intent to do great bodily harm, or created a very high risk of death
or great bodily harm knowing that death or great bodily harm was the probable result.”
MCL 777.36(1)(b). The trial court’s assessment of points for OV 6 must be consistent with the
jury verdict unless the trial court has information that was not presented to the jury. See
MCL 777.36(2)(a).
The elements of AWIM are “(1) an assault, (2) with an actual intent to kill, (3) which, if
successful, would make the killing murder.” People v Davis, 216 Mich App 46, 53; 549 NW2d 1
(1996) (quotation marks and citations omitted). Premeditation is, accordingly, not an element of
AWIM. “To premeditate is to think about beforehand . . . .” People v Woods, 416 Mich 581, 599
n 2; 331 NW2d 707 (1982) (quotation marks and citation omitted). “[P]remeditation may be
established by circumstantial evidence tending to show that a defendant had an opportunity to
think about, evaluate, or take a ‘second look’ at their actions.” People v Walker, 330 Mich App
378, 383; 948 NW2d 122 (2019) (citation omitted). “The opportunity must be adequate, but it
need not be long.” Id. at 383-384. Premeditation can be demonstrated by a relationship between
the defendant and the victim, the defendant’s actions before and after the offense, and the
circumstances of the offense. People v Plummer, 229 Mich App 293, 300; 581 NW2d 753 (1998).
Inferences to support a finding of premeditation “must have support in the record and cannot be
arrived at by mere speculation.” Id. at 301.
In this case, defendant was either told that DeGroot, misidentified as Bechtold, was
walking down the street, or he incidentally saw DeGroot. Either way, he went after DeGroot with
his gun and had time to think about what he was going to do, at least before shooting DeGroot the

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final four times. Moreover, the record is clear that there was some gap of time between two sets
of gunshots, suggesting that defendant had an opportunity for premeditation. Therefore, the trial
court did not err by assessing 50 points for OV 6, and defendant is not entitled to resentencing.
Defendant also argues, however, that his PSIR erroneously reflects 10 points for OV 17.
OV 17 relates to the degree of negligence that a defendant exhibits. MCL 777.47(1). Ten points
are warranted if “[t]he offender showed a wanton or reckless disregard for the life or property of
another person.” MCL 777.47(1)(a). A trial court may not assess 10 points for OV 17 if the trial
court assessed points for OV 6. MCL 777.47(2). Further, a trial court may only assess points for
OV 17 “if the offense or attempted offense involve[d] the operation of a vehicle.” MCL 777.22(1).
In this case, the trial court did not address OV 17 at the sentencing hearing when addressing
the variables for which it was assessing points. Further, the trial court noted that defendant’s total
OV score was 115 points. Therefore, the inclusion of 10 points for OV 17, and the total OV score
of 125 points, appears to be in error. There is nothing in the record to demonstrate that the trial
court relied on incorrect information when imposing defendant’s sentence, however, and the
sentencing error did not alter the sentencing guidelines range. See People v Charboneau, ___
Mich App ___, ___; ___ NW3d ___ (2024) (Docket No. 364596); slip op at 10. Accordingly,
resentencing is not required, but a remand is appropriate for the ministerial task of correcting the
PSIR to reflect zero points for OV 17. See id.
III. STANDARD 4 BRIEF
In a Standard 4 brief, defendant argues that defense counsel was ineffective for stipulating
to the admission of prosecution Exhibits 10 and 53. Further, defendant argues that the prosecution
committed error by admitting this evidence.
As an initial matter, defendant did not include a statement of questions presented with his
Standard 4 brief. An appellant must identify issues in a statement of questions presented.
MCR 7.212(C)(5). This Court is not required to consider issues that a party does not properly set
forth in a statement of questions presented. People v Brown, 239 Mich App 735, 748; 610 NW2d
234 (2000). Because defendant does engage in legal analysis and relies on the lower court record,
we will address defendant’s claims.
Defense counsel stipulated to Exhibit 53, the picture of defendant in his work shirt standing
next to a measuring tape. The prosecution admitted this picture along with other pictures that
Clemens had taken, but Clemens did not take this picture. Defendant does not establish that this
picture was prejudicial or how it would have affected the outcome of the proceedings when
defendant conceded that he was at the scene of the shooting in his work shirt, and the jury was
otherwise aware that defendant had been arrested.
As to a 911 call, defendant argues that the exhibit was hearsay because the caller was not
present at trial to testify. Defense counsel eventually identified the phone call as constituting
hearsay but, as defendant notes, defense counsel already had stipulated to the admission of the
evidence. Even assuming that defense counsel’s failure to object to this call was deficient,
defendant again cannot demonstrate prejudice when he conceded that he was at the scene of the
shooting, and the 911 call essentially corroborated that fact. There is not a reasonable probability

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that excluding the phone call would have affected the outcome of the proceedings. See Taylor,
275 Mich App at 186.
Finally, defendant argues that the prosecution committed error by relying on this evidence.
This Court reviews for plain error unpreserved claims of prosecutorial error. People v Smith, ___
Mich App ___, ____; ____ NW3d ____ (2024) (Docket No. 362114); slip op at 13. “Issues of
prosecutorial [error] are decided case by case, and this Court must examine the entire record and
evaluate a prosecutor’s remarks in context.” People v Dobek, 274 Mich App 58, 64; 732 NW2d
546 (2007). Further, this Court will not find error requiring reversal if a curative instruction would
have alleviated the prejudicial effect. Unger, 278 Mich App at 235.
“Given that a prosecutor’s role and responsibility is to seek justice and not merely convict,
the test for prosecutorial [error] is whether a defendant was denied a fair and impartial trial.”
Dobek, 274 Mich App at 63. Defendant has not demonstrated that the prosecution improperly
admitted these exhibits or that their admission was unfairly prejudiced defendant and denied him
a fair trial. Accordingly, reversal is not warranted.
IV. CONCLUSION
We affirm defendant’s convictions and sentence. However, we remand to the trial court
for the ministerial task of correcting his PSIR, as stated in our opinion. We do not retain
jurisdiction.
/s/ Michael J. Riordan
/s/ Christopher M. Murray
/s/ Allie Greenleaf Maldonado

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