                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 17, 2017
              Plaintiff-Appellee,

v                                                                  No. 332858
                                                                   Oakland Circuit Court
JACKIE RICHARD MAYBEE,                                             LC No. 2015-256793-FH

              Defendant-Appellant.


Before: SAAD, P.J., and CAVANAGH and CAMERON, JJ.

PER CURIAM.

       A jury convicted defendant of second-degree home invasion, MCL 750.110a(3).
Defendant was sentenced as a fourth habitual offender, MCL 769.12, to 52 months to 30 years’
imprisonment. Defendant appeals, and for the reasons provided below, we affirm.

                               I. CONFRONTATION CLAUSE

       Defendant argues that the introduction of a statement made by Cassandra Model, another
individual involved in the home invasion, to Deputy Canegin1 was violative of his right to
confrontation and necessitates a new trial because she did not testify at trial. We disagree.

        At trial, the prosecution examined Deputy Randy Leppek. During the questioning,
Deputy Leppek stated that during the traffic stop, he talked to the two male passengers
(defendant and Rolando Gerrero) in the green SUV while Deputy Canegin took the female
driver, Model, to his vehicle for questioning. Deputy Leppek also stated that he did not remove
the two males from the vehicle until he heard from Deputy Canegin that Model admitted to
participating in the breaking and entering.

        While defendant objected to the testimony, he only objected on hearsay grounds—not on
confrontation grounds. Accordingly, the issue is not preserved, and our review is for plain error
affecting defendant’s substantial rights. People v Walker (On Remand), 273 Mich App 56, 65-


1
  Deputy Canegin’s first name and the proper spelling of his last name were not specified in the
lower court record.


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66; 728 NW2d 902 (2006); People v Coy, 258 Mich App 1, 12; 669 NW2d 831 (2003). Thus, a
defendant must show that the plain error affected the outcome of the lower court proceedings.
Walker, 273 Mich App at 66.

         The Sixth Amendment of the United States Constitution, applied to the states through the
Fourteenth Amendment, provides that “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.” US Const, Am VI; People v Burton,
219 Mich App 278, 287; 556 NW2d 201 (1996). The Confrontation Clause applies, not only to
in-court testimony, but also to out-of-court statements introduced at trial. Crawford v
Washington, 541 US 36, 50-51; 124 S Ct 1354; 158 L Ed 2d 177 (2004). But these requirements
only are implicated when the proffered statement is testimonial in nature. Walker, 273 Mich
App at 60.

       Statements are nontestimonial when made in the course of police interrogation
       under circumstances objectively indicating that the primary purpose of the
       interrogation is to enable police assistance to meet an ongoing emergency. They
       are testimonial when the circumstances objectively indicate that there is no such
       ongoing emergency, and that the primary purpose of the interrogation is to
       establish or prove past events potentially relevant to later criminal prosecution.
       [Davis v Washington, 547 US 813, 822; 126 US 2266; 165 L Ed 2d 224 (2006).]

       However, we need not decide whether Model’s statement to Deputy Canegin was
testimonial because, assuming it was testimonial, defendant cannot show how the statement’s
admission affected his substantial rights. Defendant claims that without Model’s statement, there
was insufficient evidence to identify him as a perpetrator of the crime because J. B. McClure,
who saw the three perpetrators get away in the green SUV, never identified defendant at trial.
But defendant ignores the substantial, other evidence linking defendant as one of the
perpetrators. While McClure did not get a good look at the perpetrators’ faces, he saw that there
were two males and one female. He saw that one male sat in the backseat of the green SUV, a
male wearing an orange shirt sat in the front passenger seat, and the female sat in the front driver
seat. When police pulled a green SUV over shortly thereafter, a female (Model) was in the
driver seat, a man wearing an orange shirt (defendant) was in the front passenger seat, and
another man was in the back seat. Furthermore, the police found items in the vehicle that
matched the items that were reported missing from the home that was broken into. Therefore,
defendant has not demonstrated that his substantial rights were affected by the admission of
Model’s statement to Deputy Canegin, because the jury unquestionably would have convicted
defendant based on this other evidence.

        Moreover, as previously noted, the Confrontation Clause, in general, bars the admission
of testimonial statements by witnesses who did not testify at trial. See People v Nunley, 491
Mich 686, 698; 821 NW2d 642 (2012). Here, there is no question that Model did not testify at
trial. However, she was present. Indeed, she was brought to the court by the Michigan
Department of Corrections and was available to testify at trial. Defendant and his defense
counsel stated on the record that they decided not to call Model as a witness. This decision was
made after Deputy Leppek testified and after Model’s statement to Deputy Canegin was admitted
into the record. Accordingly, defendant cannot now complain that Model did not testify at trial
when she was present and available but defendant simply chose to not call her to the stand. See

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Melendez-Diaz v Massachusetts, 557 US 305, 313 n 3; 129 S Ct 2527; 174 L Ed 2d 314 (2009)
(“The right to confrontation may, of course, be waived . . . .”); People v Carter, 462 Mich 206,
215; 612 NW2d 144 (2000). Consequently, because Model was present and available to testify,
defendant’s prior decision to not call her to the stand, when she was available, renders his present
reliance on the Confrontation Clause misplaced.2

                            II. SUFFICIENCY OF THE EVIDENCE

        Defendant argues that there was insufficient evidence to convict him of this crime
because there was not sufficient circumstantial evidence that identified him as a perpetrator or
aider and abettor to second-degree home invasion. We disagree.

        This Court will review a challenge to the sufficiency of the evidence de novo. People v
Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001). The evidence is reviewed “in a light
most favorable to the prosecutor to determine whether any trier of fact could find the essential
elements of the crime were proven beyond a reasonable doubt.” People v Robinson, 475 Mich 1,
5; 715 NW2d 44 (2006). It is the role of the trier of fact to weigh evidence and evaluate the
credibility of witnesses. People v Kanaan, 278 Mich App 594, 618-619; 751 NW2d 57 (2008).

        The elements of second-degree home invasion are: (1) “the defendant entered a dwelling
by breaking or without the permission of any person in ownership or lawful possession or control
of the dwelling,” and (2) the defendant “did so with the intent to commit a felony, larceny, or
assault therein or committed a felony, larceny, or assault while entering, present in, or exiting the
dwelling.” People v Dunigan, 299 Mich App 579, 582; 831 NW2d 243 (2013); see also MCL
750.110a(3). Further, it is well established that identity is an element of every offense. People v
Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008), citing People v Oliphant, 399 Mich 472,
489; 250 NW2d 443 (1976), and People v Kern, 6 Mich App 406, 409; 149 NW2d 216 (1967).
“[C]ircumstantial evidence and reasonable inferences arising from that evidence can constitute
satisfactory proof of the elements of a crime.” People v Lee, 243 Mich App 163, 167-168; 622
NW2d 71 (2000).

       Defendant argues that there was insufficient evidence presented to allow the jury to
conclude that he participated in the home invasion. It is important to note that defendant was
charged as acting as a principle in the home invasion or, alternately, as an aider and abettor.
Here, there was sufficient evidence to prove that he, at a minimum, aided and abetted in the


2
   This situation is distinguishable from caselaw that provides that it is not a defendant’s
responsibility to procure witnesses or to subpoena them. See People v Fackelman, 489 Mich
515, 529 n 7; 802 NW2d 552 (2011) and cases cited therein. Unlike in these cited cases, the
prosecution here successfully took steps to ensure that Model appeared at court. It was only
defendant’s decision that resulted in her not testifying at trial. We decline to extend the rationale
cited in Fackelman to this circumstance. Indeed, the United States Supreme Court has stated that
under the Confrontation Clause, “The prosecution must produce [those witnesses used against
the defendant] . . . .” Melendez-Diaz, 557 US at 313-314 (emphasis altered). That is precisely
what the prosecution did here, thereby fulfilling its constitutional obligation.


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commission of the crime. An individual who procures, counsels, aids, or abets in the
commission of a crime may be convicted and punished as if he or she directly committed the
crime. Robinson, 475 Mich at 5-6; see also MCL 767.39. The elements of aiding and abetting
are the following:

       (1) the crime charged was committed by the defendant or some other person; (2)
       the defendant performed acts or gave encouragement that assisted the commission
       of the crime; and (3) the defendant intended the commission of the crime or had
       knowledge that the principal intended its commission at the time that [the
       defendant] gave aid and encouragement. [People v Plunkett, 485 Mich 50, 61;
       780 NW2d 280 (2010) (quotation marks and citations omitted).]

        Defendant’s reliance on the fact that “no one identified [defendant] as being present at the
scene of the [breaking and entering]” is misplaced. Circumstantial evidence allowed the jury to
conclude that defendant assisted and intended the commission of the crime. McClure testified
that he saw a person in an orange shirt, along with two other individuals, carry large amounts of
“stuff” to a green SUV that was parked in his driveway. After the individuals drove off,
McClure called 911 and notified them of what he saw. A short time later, police found a green
SUV with three individuals inside and effectuated a traffic stop. The positions of the people in
the vehicle (female in the front driver seat, male wearing orange shirt in the front passenger seat,
other male in rear seat) matched what McClure witnessed. Plus, the items found inside the
vehicle matched the missing items from the house that was robbed. Thus, with the man in the
orange shirt having been seen carrying items to the vehicle with the other individuals and
defendant later having been identified as the man wearing the orange shirt, the evidence was
sufficient to allow the jury to conclude that defendant participated in the home invasion and was
not “merely present” as defendant claims.3

                          III. GREAT WEIGHT OF THE EVIDENCE

        Defendant relies upon the same arguments that he makes in support of his claim that
there was insufficient evidence to convict defendant to argue that the verdict is against the great
weight of the evidence. We disagree. In a jury trial, an objection going to the weight of the
evidence can only be raised in a motion for a new trial before the trial court. People v Norman,
184 Mich App 255, 257; 457 NW2d 136 (1990). Defendant attempted to preserve this issue by
filing a motion to remand concurrently with his brief on appeal in this Court. Filing a motion to
remand in this court does not preserve this issue, and failure to raise the issue by the appropriate
motion forfeits the issue on appeal. People v Musser, 259 Mich App 215, 218; 673 NW2d 800
(2003). Because defendant failed to bring a motion in the trial court, this issue is not preserved
for appeal. Norman, 184 Mich App at 257. Therefore, our review is limited to plain error
affecting defendant’s substantial rights. Musser, 259 Mich App at 218, citing People v Carines,
460 Mich 750, 763-764; 597 NW2d 130 (1999).



3
  For the same reasons, the trial court did not err when it denied defendant’s motion for a
directed verdict.


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       The following test is used to determine whether the verdict at issue is against the great
weight of the evidence: “whether the evidence preponderates so heavily against the verdict that it
would be a miscarriage of justice to allow the verdict to stand.” People v Lacalamita, 286 Mich
App 467, 469; 780 NW2d 311 (2009), citing People v McCray, 245 Mich App 631, 637; 630
NW2d 633 (2001).

        As fully discussed above, the evidence clearly showed that defendant was a willing
participant or aider and abettor in the home invasion. Any claim that defendant was “merely
present” with the stolen items is belied by the record evidence. McClure testified that he saw a
person matching defendant’s description, along with two other individuals, carry large amounts
of household “stuff” to the green SUV. At a subsequent traffic stop, it was discovered that the
vehicle contained items that were stolen from McClure’s neighbor’s house. As a result, it is
clear that the evidence does not preponderate against the verdict and, instead, firmly establishes
that defendant is guilty of the charged crime.

       Affirmed.



                                                            /s/ Henry William Saad
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Thomas C. Cameron




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