PEOPLE v. BOSCA, 310 Mich. App. 1

BOONSTRA, J. Defendant appeals by right his jury trial convictions of extortion, MCL 750.213; four counts of unlawful imprisonment, MCL 750.349b; four counts of assault with a dangerous weapon (felonious assault), MCL 750.82; possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b(l); delivery and manufacture of marijuana, MCL 333.7401(2)(d)(iii); and maintaining a drug house, MCL 333.7405(d).

Defendant was sentenced to 57 months to 20 years’ imprisonment for the extortion conviction, 57 months to 15 years’ imprisonment for each conviction of unlawful imprisonment, 2 years to 4 years’ imprisonment for each assault conviction and for the conviction of manufacture and delivery of marijuana, 2 years’ imprisonment for the felony-firearm conviction, and 1 year to 2 years’ imprisonment for the conviction of maintaining a drug house. In addition to various restitution requirements, defendant was also required to register in accordance with the Sex Offenders Registration Act (SORA), MCL 28.721 et seq.

We affirm defendant’s convictions and sentences. We reject defendant’s constitutional challenges with regard to SORA registration, but call on the Legislature to address aspects of the SORA statute. We remand to the trial court for entry of an amended judgment of sentence conforming defendant’s sentences to the jury verdict. I. PERTINENT FACTS AND PROCEDURAL HISTORY Defendant’s convictions arise out of an incident that occurred on June 13, 2011, in Sterling Heights, Michigan.

A few days before the incident at issue, four minors, all teenaged boys, had broken into defendant’s home with the help of defendant’s son to steal defendant’s marijuana. Defendant planned to entice the boys involved in the break-in to return to the house on June 13 while he and two associates, Gerald King and Allen Brontkowski, lay in wait for them. Some -of the boys involved in the incident on June 13 were among those minors who had broken into defendant’s house a few days before June 13 and had stolen marijuana.

On June 13, the day of the second incident, two boys entered defendant’s home through a kitchen window. They opened the front door to admit a third boy, while a fourth remained on the porch. Defendant and his associates captured three of the boys, but one of them managed to escape. Defendant and his associates held the boys against their will in the basement. The boys testified that they were duct-taped to chairs, hit with a pistol, kicked and beaten, and threatened with a sword, a hatchet, pliers, a cigar cutter, flammable liquids, and a circular saw.

Defendant forced one of the three boys to call the boy who had escaped and tell him to return to the house and assist with the removal of marijuana; defendant forced another of the boys to call others who had been involved in the prior theft of marijuana and tell them “he needed help getting the marijuana out of the house.” Two more boys arrived at the house shortly thereafter. Defendant and his associates were able to catch one of them, and they threw him down the stairs into the basement with the original three imprisoned boys. The new arrival was able to call 911 before defendant smashed his phone.

As punishment, defendant broke the sheath of his sword over the boy’s head. Defendant then duct-taped the boy’s hands and legs together. The Sterling Heights police responded to the 911 call. By that time, at least some of the boys had been held captive for approximately three hours. Two of the boys were transported to the hospital for treatment, one in an ambulance and one by his mother. In searching defendant’s home, police discovered a sword and a broken sheath, duct tape, a cigar cutter, an electric circular saw, pliers, and a loaded handgun possessed by Brontkowski.

Officers found blood stains on the basement floor and walls, as well as on the sword sheath and Brontkowski’s pants; the blood on the sheath and pants was DNA-matched to one of the boys. Defendant admitted to duct-taping the boys to chairs. Marijuana plants and marijuana were found in the basement and garage. Detective Jason Modrzejewski of the Sterling Heights Crime Suppression Unit collected evidence from the residence and dismantled defendant’s grow operation. Two grow locations were identified: one was in a room attached to the garage at the south end of the residence and the other was in the basement.

Modrzejewski asserted that he could detect the odor of marijuana from the driveway before entering the residence. He collected seedlings from a basement cabinet and found jars of marijuana “all over the place,” including behind insulation, in floor joists, and in cabinets. He also confiscated marijuana from the saddlebag of a motorcycle in the garage. He opined at trial that the total amount of marijuana confiscated exceeded that permissible for personal medical marijuana use.

A controlled substance unit expert determined that the amount of plant material identified as marijuana totaled 578.6 grams, or 1.27 pounds. The police confiscated 87 plants, 78 of which were identified as marijuana. At trial, defendant asserted that he was a licensed caregiver under the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., and presented the testimony of an expert, Frank Telewski, a Michigan State University professor of water and plant biology. Telewski opined that the plants seized were under a moderate level of stress and showed evidence of mold, spider mites and eggs.

He believed that the infestation had degraded and killed some of the plants and that it was unlikely that the infested plants could be used for medical marijuana. He asserted that the amount confiscated, when considering the damaged plants and the status of some of the material as uncured, did not exceed the amount that five patients could use in accordance with defendant’s MMMA licensure. The jury convicted defendant as described above.

At his sentencing hearing on September 4, 2012, defendant’s counsel sought to disqualify the prosecutor’s office, asserting that the prosecutor had only pursued legal action against defendant on behalf of the boys as victims but had concurrently ignored defendant’s status as a victim of the boys based on the prior break-in and theft from his home. The prosecution responded, citing the discretion afforded in bringing criminal charges, and the trial court denied the motion.

At sentencing, defendant indicated that there were inaccuracies in the presentence investigation report and objected to the scoring of Offense Variables (OVs) 1, 2, 3, 4, 7, 8,10, and 13. He also asserted that a downward departure from the guidelines would have been appropriate. The trial court imposed the sentences described above. Following sentencing, defendant filed a motion for a new trial or judgment of acquittal, and for resentencing.

Specifically, defendant challenged the great weight of the evidence and asserted a lack of evidence of criminal intent to support the convictions, and asserted that the prosecution committed misconduct by failing to disclose or obtain cellular telephone records and medical records of the victims. He also requested a Ginther hearing on the ineffective assistance of his trial counsel, citing the failure of counsel to pursue or obtain these records through discovery. Defendant also challenged the requirement that defendant register as a sex offender under SORA.

Defendant contended that registration under SORA was an unconstitutional violation of his rights to due process and to be free from cruel and unusual punishment,. The trial court issued a written opinion and order on defendant’s motion on July 24, 2013. In evaluating defendant’s numerous sentencing challenges, the trial court indicated satisfaction with the original handling of defendant’s objections to the scoring of the various OVs and determined that reassessment of the scoring was unnecessary.

The trial court similarly found it unnecessary to revisit defendant’s request for a downward departure because “these issues . . . were previously addressed and adequately supported by the record.” The trial court determined that defendant’s challenge to the requirement that he register under SORA “should be fully litigated.” The trial court instructed the prosecutor to respond to defendant’s challenges on this issue and to that extent granted defendant’s motion for resentencing in part. The trial court denied the remainder of defendant’s motion.

The trial court did not make a final ruling on the SORA issue before August 9, 2013, when defendant filed a claim of appeal. Thereafter, on March 6, 2014, the trial court issued an opinion and order denying defendant’s motion for resentencing regarding the SORA issue. On March 25, 2014, this Court granted defendant’s motion (which was unopposed by plaintiff) to file a supplemental brief on appeal with respect to the SORA issue, and accepted defendant’s previously submitted supplemental brief for filing. Plaintiff filed a supplemental brief in response on April 15, 2014. II.

GREAT WEIGHT OF THE EVIDENCE Defendant first contends that the jury’s verdicts are against the great weight of the evidence. Defendant contends that the acknowledged lack of veracity of the witnesses and their own criminal conduct in the events that led to the charges against defendant render their testimony inherently implausible or patently incredible.

We disagree. “An appellate court will review a properly preserved great-weight issue by deciding 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 Cameron, 291 Mich App 599, 616-617; 806 NW2d 371 (2011) (citation omitted). A trial court’s denial of a motion for a new trial is reviewed for an abuse of discretion. People v Unger, 278 Mich App 210, 232; 749 NW2d 272 (2008).

It is well recognized that the threshold necessary for a judge to overrule a jury and grant a new trial “is unquestionably among the highest in our law.” People v Plummer, 229 Mich App 293, 306; 581 NW2d 753 (1998) (quotation marks and citation omitted). “When analyzing a great-weight challenge, no court may sit as the ‘13th juror’ and reassess the evidence.” People v Galloway, 307 Mich App 151, 167; 858 NW2d 520 (2014) (citation omitted). “[I]n general, conflicting testimony or a question as to the credibility of a witness are not sufficient grounds for granting a new trial. . . .” People v Lemmon, 456 Mich 625, 643; 576 NW2d 129 (1998) (quotation marks and citations omitted). “[Alb-sent exceptional circumstances,” issues of witness credibility are within the exclusive province of the trier of fact.

Id. at 642, 646. “To support a new trial, the witness testimony must ‘contradict 0 indisputable physical facts or laws,’ be ‘patently incredible or def[y] physical realities,’ be ‘so inherently implausible that it could not be believed by a reasonable juror,’ or have been ‘seriously impeached’ in a case that was ‘marked by uncertainties and discrepancies.’ ” Galloway, 307 Mich App at 167 (citation omitted; alterations in original).

Copious testimony was elicited during trial from the boys involved in this matter acknowledging the earlier entry into defendant’s residence, the theft of marijuana on a previous occasion, and their entry on the later occasion with the intent to procure additional marijuana for their personal use and sale. The boys also admitted to being untruthful when interviewed by the police.

While testimony varied regarding who wielded the various weapons used, who engaged in verbal threats, and who initiated the physical contact and the number of times the boys were struck, testimony was consistent that these incidents occurred while the boys were in defendant’s home. In addition, testimony was consistent regarding the use of duct tape to restrain the boys. King confirmed being contacted by defendant and being asked to be present at defendant’s home in the event of another home invasion on the date of the second incident.

When defendant and his associates heard a knock on the front door on the second occasion, they did not act to prevent another home invasion by answering the door, but instead waited, anticipating that the boys would enter the home. Testimony was also elicited indicating that defendant coerced two of the boys to contact others who may have been involved in the prior break-in to attempt to induce them to return to the residence. King testified that he had a hatchet and that Brontkowski had a handgun.

King further acknowledged that he, defendant, and Brontkowski hit the boys with their fists, pushed them down the basement stairs, blocked their escape, struck them with the blunt end of a hatchet, a sword sheath, and their fists, threatened them with a cigar cutter, a circular saw and a handgun, and subjected them to a plethora of verbal threats. Physical evidence corroborated a great deal of this testimony. In terms of the marijuana charges, testimony was elicited that defendant was a licensed grower.

Evidence was also introduced regarding the extensiveness of defendant’s grow operation and the amounts of marijuana and the number of plants confiscated. Contradictory testimony was introduced regarding the viability of certain plants, whether some of the marijuana was fully cured, and the damage to part of the crop due to infestation. Conflicting opinions were also elicited regarding whether the amount of marijuana in defendant’s possession exceeded the amount permitted by his licensure under the MMMA.

In sum, the jury had before it a substantial amount of testimony and evidence, which was both consistent and contradictory on certain points. We conclude that the evidence available to the jury was not so incredible or contradictory that it necessitated or permitted judicial intervention. Galloway, 307 Mich App at 167. The jury was repeatedly informed that the boys had been untruthful and had engaged in illegal activity by entering defendant’s residence and by seeking to procure marijuana. They admitted to the illegal use of marijuana, including its use on the day of these events.

Defendant repeatedly asserted a theory of his case based on his right to defend his home and property from intruders and theft, and based on the absence of any criminal intent in seeking to scare the intruders in his home. It was acknowledged that defendant was a licensed grower, but controversy existed regarding the amount of marijuana in his possession. The jury clearly rejected defendant’s position and found, instead, that the boys’ testimony was credible. We will not interfere with the jury’s role in ascertaining both credibility and the weight of the evidence.

People v Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010). III. SUFFICIENCY OF THE EVIDENCE Next, defendant generally asserts the absence of sufficient evidence to sustain any of his 12 convictions. Initially, we note that, other than citing the law pertaining to issue preservation and standard of review, defendant merely relies on his great weight of the evidence argument.

He provides no further explanation or citation to the law or the record, and he fails to address how the evidence was insufficient to support any particular element of any particular offense, resulting in an abbreviated argument in support of this claim of error. “An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority.” People v Payne, 285 Mich App 181, 195; 774 NW2d 714 (2009) (quotation marks and citation omitted).

Although we could thus deem the issue abandoned, we find that it is also without merit.

See People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291 (2001). “In determining whether the prosecutor has presented sufficient evidence to sustain a conviction, an appellate court is required to take the evidence in the light most favorable to the prosecutor.” People v Tennyson, 487 Mich 730, 735; 790 NW2d 354 (2010). “[T]he question on appeal is whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” Id. (quotation marks and citation omitted). “All conflicts in the evidence must be resolved in favor of the prosecution and we will not interfere with the jury’s determinations regarding the weight of the evidence and the credibility of the witnesses.” Unger, 278 Mich App at 222. “Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime.” People v Allen, 201 Mich App 98, 100; 505 NW2d 869 (1993). “[B]ecause it can be difficult to prove a defendant’s state of mind on issues such as knowledge and intent, minimal circumstantial evidence will suffice to establish the defendant’s state of mind, which can be inferred from all the evidence presented.” People v Kanaan, 278 Mich App 594, 622; 751 NW2d 57 (2008).

To evaluate the sufficiency of the evidence, we must review the evidence in the context of the elements of the charged crimes. A. EXTORTION Our Supreme Court recently revisited the elements of extortion in People v Harris, 495 Mich 120, 122-123; 845 NW2d 477 (2014).

There, the Court stated: [T]he plain language of the extortion statute, MCL 750.213, defines extortion in terms of whether the defendant maliciously threatened a person with harm in order to “compel the person so threatened to do .. . any act against his will.” Thus, the Legislature clearly intended the crime of extortion to occur when a defendant maliciously threatens to injure another person with the intent to compel that person to do any act against his will, without regard to the significance or seriousness of the compelled act. [Harris, 495 Mich at 122-123.] In this instance, there was repeated testimony that defendant and his associates verbally threatened the boys with physical harm, in addition to using various weapons or items to inflict injury.

Several of the threats were directed at the boys to compel or encourage them to provide defendant with the identity and contact information of other individuals who had previously entered his home and removed marijuana, and to solicit their assistance in luring those individuals back to defendant’s home. In addition, defendant and his associates engaged in these activities to compel the boys to provide information regarding their own identities and to obtain their parents’ contact information. This satisfies the “threat” and “act against his will” elements of the crime. Id. at 123.

In addition, “only those threats made with the intent to commit a wrongful act without justification or excuse, or made in reckless disregard of the law or of a person’s legal rights, rise to the level necessary to support an extortion conviction.” Id. at 136. “The existence of malice . . . depends on the facts and circumstances of each case and can be inferred from a defendant’s conduct.” Id. at 139. Defendant and his associates threatened the boys with physical harm if they did not cooperate. These threats were enhanced by the use of weapons in an effort to obtain the desired information.

More than one boy testified that defendant became more incensed and violent when told of his own son’s involvement in the prior theft. The evidence was thus sufficient to satisfy the element of malice. Consequently, sufficient evidence existed to establish the elements of extortion. B. UNLAWFUL IMPRISONMENT The elements of unlawful imprisonment are delineated in MCL 750.349b as follows:

(1) A person commits the crime of unlawful imprisonment if he or she knowingly restrains another person under any of the following circumstances: (

a) The person is restrained by means of a weapon or dangerous instrument. (

b) The restrained person was secretly confined. (

c) The person was restrained to facilitate the commission of another felony or to facilitate flight after commission of another felony. The term “restrain” is defined within the statute as “to forcibly restrict a person’s movements or to forcibly confine the person so as to interfere with that person’s liberty without that person’s consent or without lawful authority.” MCL 750.349b(3)(a). Restraint need not occur “for any particular length of time.” MCL 750.349b(3)(a); see also People v Railer, 288 Mich App 213, 218-219; 792 NW2d 776 (2010).

The term “secretly confined” is defined as (a) “[t]o keep the confinement of the restrained person a secret” or (b) “[t]o keep the location of the restrained person a secret.” MCL 750.349b(3)(b). This definition was further explained in People v Jaffray, 445 Mich 287, 309; 519 NW2d 108 (1994), as follows: [T]he essence of “secret confinement” as contemplated by the statute is deprivation of the assistance of others by virtue of the victim’s inability to communicate his predicament. “Secret confinement” is not predicated solely on the existence or nonexistence of a single factor.

Rather, consideration of the totality of the circumstances is required when determining whether the confinement itself or the location of confinement was secret, thereby depriving the victim of the assistance of others. Sufficient evidence was adduced at trial to sustain defendant’s four convictions of unlawful imprisonment. There was no dispute that the boys were forced down the basement steps and their escape prevented. They were restrained with duct tape. Their cellular telephones were confiscated.

Defendant restricted the boys’ ability to access their telephones and monitored the information communicated, threatening them with injury or harm should they not comply with his instructions. The boys were fearful, as evidenced by the fact that two of them lost control of their bodily functions. They were precluded from securing outside assistance, and one boy’s telephone was destroyed when he attempted to contact the police by calling 911. Defendant contends that his imprisonment of the boys was not “without lawful authority.” MCL 750.349b(3)(a).

Defendant asserts that he was entitled to defend himself and his home, to stand his ground, to stop a fleeing felon, to eject trespassers, to arrest and detain felons, and to pursue and retake a person who has escaped or been rescued from a lawful arrest. Assuming all of that to be true, however, the evidence in this case does not implicate any such rights. Rather, the evidence established that defendant constructed a scenario to lure the boys to his home and, after apprehending them, defendant engaged in a level of conduct and force that the jury deemed excessive in relation to the threat presented by the boys.

We will not interfere with a jury’s assessment of the weight of the evidence or the credibility of the witnesses. People v Dunigan, 299 Mich App 579, 582; 831 NW2d 243 (2013). Moreover, even assuming that defendant possessed a right to “arrest” the boys who had entered his home on the day of the second incident, he was obligated by law to “without unnecessary delay deliver the person arrested to a peace officer . . . .” MCL 764.14. Defendant did not do so. To the contrary, defendant imprisoned the boys for several hours, during which time he and his associates assaulted and threatened them.

Further, defendant sought to prevent the boys from contacting the police, and thereby he acted precisely contrary to his lawful obligation to deliver the boys to the police “without unnecessary delay.” Id. Consequently, sufficient evidence was presented to support defendant’s four convictions under MCL 750.349b. C.

ASSAULT WITH A DANGEROUS WEAPON “The elements of [assault with a dangerous weapon] are (1) an assault, (2) with a dangerous weapon, and (3) with the intent to injure or place the victim in reasonable apprehension of an immediate battery.” People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999). “A person who aids or abets the commission of a crime may be convicted and punished as if he directly committed the offense.” People v Izarraras-Placante, 246 Mich App 490, 495; 633 NW2d 18 (2001); see also MCL 767.39.

To support a finding that a defendant aided and abetted a crime, the prosecution must show that (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 he gave aid and encouragement. [Izarraras-Placante, 246 Mich App at 495-496 (quotation marks and citation omitted).] “The aiding and abetting statute encompasses all forms of assistance rendered to the perpetrator of a crime and comprehends all words or deeds that might support, encourage, or incite the commission of a crime.” Id. at 496 (citation omitted).

Intent may be inferred from a defendant’s “words, acts, means, or the manner used to commit the offense.” People v Harrison, 283 Mich App 374, 382; 768 NW2d 98 (2009). A dangerous weapon is defined by MCL 750.226 as “a pistol or other firearm or dagger, dirk, razor, stiletto, or knife having a blade over 3 inches in length, or any other dangerous or deadly weapon or instrument” carried with the intent to unlawfully use the weapon against another person.

In addition, “[a] dangerous weapon can also be an instrumentality which, although not designed to be a dangerous weapon, is used as a weapon and, when so employed, is dangerous.” People v Barkley, 151 Mich App 234, 238; 390 NW2d 705 (1986). Testimony and other evidence demonstrated that an assault was perpetrated on all of the boys. All were intimidated and sustained some form of injury, albeit not life-threatening injury. The boys were struck with or threatened by fists, a handgun, a circular saw, pliers, a cigar cutter, a hatchet and a sword sheath, and were physically forced into defendant’s basement.

While defendant did not physically wield every weapon, testimony indicated that he told Brontkowski to bring a gun to the residence, and that he handed items to King for use in threatening the boys. Several of the boys testified that defendant wielded the sword sheath that struck them and inflicted injury. While defendant challenges the intent element of this crime, it is undisputed that his intent was, at a minimum, to scare the boys.

His success in accomplishing this was demonstrated by testimony and physical evidence that the boys were crying and that two of them lost control of their bodily functions because of the level of fear they experienced. The evidence is sufficient to sustain defendant’s convictions for assault with a dangerous weapon either directly or under an aiding and abetting theory. D. FELONY-FIREARM “The elements of felony-firearm are that the defendant possessed a firearm during the commission of, or the attempt to commit, a felony.” Avant, 235 Mich App at 505.

Several witnesses testified to the presence of a handgun in defendant’s residence and its use to threaten or intimidate the boys to effectuate the conduct underlying the charges of extortion and unlawful imprisonment. Under an aiding and abetting theory, it is irrelevant that the handgun belonged to and was most frequently wielded by Brontkowski. See Izarraras-Placante, 246 Mich App at 495-496.

Physical evidence of a text message sent by defendant to Brontkowski instructing him to bring his gun to the residence on the day of these events demonstrates defendant’s complicity in the procurement and use of the handgun under an aiding and abetting theory. See id. at 496. As such, there is sufficient evidence to support defendant’s conviction of felony-firearm. E.

MANUFACTURING A CONTROLLED SUBSTANCE The elements of manufacturing a controlled substance are (1) the defendant manufactured a substance, (2) the substance manufactured was the controlled substance at issue, and (3) the defendant knowingly manufactured it. People v Meshell, 265 Mich App 616, 619; 696 NW2d 754 (2005).

The manufacture of a controlled substance is defined as “the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis.” MCL 333.7106(2); see also People v Hunter, 201 Mich App 671, 676; 506 NW2d 611 (1993).

Further, “ ‘Marihuana’ means all parts of the plant Canabis [sic] sativa L., growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds and resins.” MCL 333.7106(3). There was no dispute that the plants and plant materials removed from defendant’s residence constituted marijuana. While the efficacy of certain plants and products derived from the plants was in dispute, the identification of the plant materials as marijuana was not contested.

Evidence was introduced verifying the confiscation of at least 78 marijuana plants and at least 578.6 grams of harvested marijuana. Testimony indicated that marijuana was found throughout the residence, including behind insulation, in floor joists, and in cabinets and other areas, and that its presence was so pervasive in the home that its odor could be detected from the driveway. Although the amounts confiscated included marijuana retrieved from King’s motorcycle saddlebag, this amount, asserted by King to comprise one-quarter ounce, was minimal in the overall context of the plant material confiscated.

Although defendant was acknowledged to be a licensed grower, the dispute actually centered on whether the amount he manufactured and maintained exceeded the legal amount permitted by his licensure. While contradictory testimony was introduced on this issue, the jury apparently found more credible the testimony indicating that there was an excessive amount of marijuana within the home and convicted defendant of manufacturing marijuana. This Court will not second guess on appeal a jury’s determination of credibility and the weight of the evidence. Kanaan, 278 Mich App at 619.

Hence, sufficient evidence exists to support defendant’s conviction on this charge. F. MAINTAINING A DRUG HOUSE Finally, the crime of maintaining a drug house is governed by MCL 333.7405(d), which provides that a person [s]hall not knowingly keep or maintain a store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place, that is frequented by persons using controlled substances in violation of this

article for the purpose of using controlled substances, or that is used for keeping or selling controlled substances in violation of this article. “The phrase ‘keep or maintain’ implies usage with some degree of continuity that can be deduced by actual observation of repeated acts or circumstantial evidence .. . that conduces to the same conclusion.” People v Thompson, 477 Mich 146, 155; 730 NW2d 708 (2007).

Sufficient evidence was adduced for a rational trier of fact to find that defendant kept or maintained the residence, and that it was used with “some degree of continuity” for “keeping or selling” controlled substances. MCL 333.7405(d); Thompson, 477 Mich at 155. It was undisputed that defendant owned and resided at this location. Additionally, there was no dispute that defendant used the premises to grow marijuana. Once again, the dispute was over whether defendant manufactured more marijuana than legitimately permitted under his license as a grower.

Premised on the jury’s factual determination that defendant’s crop exceeded the amount he was authorized to manufacture, sufficient evidence was presented to sustain this conviction. IV. PROSECUTORIAL ERROR Defendant next asserts a myriad of alleged acts of prosecutorial error involving discovery and other actions in contradiction of the requirements mandated by Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).

Specifically, defendant asserts that (1) the prosecution improperly delayed or precluded the discovery of the boys’ cellular telephone records, medical records, and taped statements to the police, (2) the prosecution failed to fully disclose the sentencing agreement it made with King in return for his trial testimony, (3) errors occurred in the failure to distinguish marijuana confiscated from King’s motorcycle saddlebag from the marijuana retrieved from defendant’s home, and (4) the prosecution’s operation of the circular saw during rebuttal closing argument was improper and unduly prejudicial to defendant.

This Court reviews a trial court’s decision regarding a discovery violation for an abuse of discretion. MCR 6.201(J). Defendant bears the burden of proving that any missing evidence was exculpatory or, in the case of failure to preserve evidence, that the police acted in bad faith.

People v Hanks, 276 Mich App 91, 95; 740 NW2d 530 (2007). “This Court reviews a trial court’s decision to grant or deny a motion for new trial for an abuse of discretion.” People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). “Underlying questions of law are reviewed de novo, while a trial court’s factual findings are reviewed for clear error.” People v Terrell, 289 Mich App 553, 559; 797 NW2d 684 (2010) (citations omitted).

To prevail on a claim of prosecutorial error, a defendant must demonstrate that he or she was “denied a fair and impartial trial.” People v Brown, 294 Mich App 377, 382; 811 NW2d 531 (2011). “We review de novo [a] defendant’s constitutional due-process claim.” People v Schumacher, 276 Mich App 165, 176; 740 NW2d 534 (2007). A. DISCOVERY VIOLATION Discovery in a criminal case is governed by MCR 6.201. People v Phillips, 468 Mich 583, 588; 663 NW2d 463 (2003).

Although it is well recognized that “[t]here is no general constitutional right to discovery in a criminal case,” People v Elston, 462 Mich 751, 765; 614 NW2d 595 (2000), a defendant can show that the police’s failure to preserve possibly exculpatory evidence violated his right to due process if law enforcement personnel acted in bad faith. Hanks, 276 Mich App at 95. Even when “potentially useful” evidence is destroyed and the destruction would constitute a violation of due process, the evidence must have been destroyed in bad faith. Arizona v Youngblood, 488 US 51, 58; 109 S Ct 333; 102 L Ed 2d 281 (1988).

Further, a defendant’s right to due process may be violated by the prosecution’s failure to produce exculpatory evidence in its possession.

As recognized by our Supreme Court in People v Chenault, 495 Mich 142, 149; 845 NW2d 731 (2014): The Supreme Court of the United States held in Brady that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” [Citations omitted.] A three-factor test has been devised to identify the primary elements of a Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued. [Strickler v Greene, 527 US 263, 281-282; 119 S Ct 1936; 144 L Ed 2d 286 (1999).] In other words, a Brady violation occurs when the prosecution has suppressed material evidence that is favorable to the accused.

See Chenault, 495 Mich at 150. Under those circumstances, bad faith is not required for a Brady violation. Id. Defendant appears to assign error to the prosecution’s failure to provide discovery, or its delay in providing discovery, for both the preliminary examination and trial. In part, defendant suggests that the alleged discovery delays negatively impacted the outcome of the preliminary examination.

With regard to the preliminary examination, as noted in People v Laws, 218 Mich App 447, 451-452; 554 NW2d 586 (1996); The district court may order discovery in carrying out its duty to conduct preliminary examinations.

Discovery may be ordered before the preliminary examination. ... “The purpose of a preliminary examination is to determine whether a crime has been committed and if there [is] probable cause to believe that the defendant committed it.” Significantly, when conducting a preliminary examination, “[a]n examining magistrate may weigh the credibility of witnesses.” However, the role of the magistrate is not that of ultimate finder of fact; where the evidence conflicts and raises a reasonable doubt regarding the defendant’s guilt, the issue is one for the jury, and the defendant should be bound over. [Citations omitted; alterations in original.] Defendant’s entire argument about the alleged failure to disclose medical records in time for the preliminary examination merely suggests, without citation to any supporting authority, that it impaired defendant’s ability to demonstrate the lack of credibility of the boys as witnesses at the preliminary examination. “An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority.” People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998).

Further, the lower court record reveals that the preliminary examination was initially delayed, by stipulation of the parties, to allow for the provision of discovery. When the preliminary examination was held on August 3, 2011, there was no indication by defense counsel of any need for discovery materials that had not been received from the prosecution. A defendant generally cannot claim error premised on an error to which he contributed by plan or negligence. People v Gonzalez, 256 Mich App 212, 224; 663 NW2d 499 (2003).

Additionally, defendant appears to assume that the prosecution must secure discoverable information on behalf of defendant. It need not do so. People v Coy, 258 Mich App 1, 21; 669 NW2d 831 (2003). There is no evidence in the record that the prosecution ever obtained the boys’ medical records; thus, there existed no necessity to provide them to defendant. Moreover, defendant acknowledges in his brief on appeal having received the boys’ medical records by February 6, 2012, four months before trial.

Further, the extent of injury to the boys was not an element of the crimes charged and so was irrelevant to the bindover decision by the district court. Additionally, there is nothing to suggest that the records were in any manner exculpatory.

Even if the boys’ injuries did not fully match their testimony, the discrepancy for purposes of the preliminary examination was irrelevant, as the district judge was not the ultimate finder of fact. “[W]here the evidence conflicts and raises a reasonable doubt regarding the defendant’s guilt, the issue is one for the jury, and the defendant should be bound over.” Laws, 218 Mich App at 452. Consequently, defendant has failed to demonstrate either a Brady violation, or other discovery violation, concerning any alleged failure to produce medical records in time for the preliminary examination.

Defendant further asserts that the prosecution committed error by failing to preserve the boys’ cellular telephone records. Again, defendant fails to demonstrate that the prosecution failed to provide defendant with the information it had or that the information was actually exculpatory. The prosecution did provide defendant with information secured from the cellular telephones of defendant and Brontkowski, and from one of the phones obtained from the scene belonging to one of the boys. Defendant and Brontkowski were permitted to subpoena the boys’ telephone records.

The prosecution is not required to “seek and find exculpatory evidence” or assist in building or supporting a defendant’s case, nor is it required to “negate every theory consistent with defendant’s innocence.” Coy, 258 Mich App at 21. Defendant has thus again failed to demonstrate a Brady violation. With regard to the police’s alleged failure to preserve cellular telephone record evidence, defendant also has not shown bad faith on the part of the police deriving from the failure of various cellular service providers to maintain data beyond a specified time period. See Youngblood, 488 US at 58.

As noted, defendant was provided with the records obtained by the police. Consequently, defendant has not demonstrated a violation of his right to due process regarding the cellular phone records. Defendant also accuses the prosecution of misconduct by virtue of its allegedly “piecemeal” provision of the recorded statements given to the police by the boys. Defendant does not suggest that recordings of the statements were not provided, but merely complains of a delay in the provision of certain statements, which he has not specifically identified on appeal.

As with the other alleged discovery violations, defendant fails to demonstrate that the information contained in the statements was exculpatory to defendant. Instead, he merely contends that the boys’ statements support his contention that the boys were not credible based on discrepancies between their statements to the police and their trial testimony. In terms of the preliminary examination, this is once again irrelevant as the district judge was not the ultimate finder of fact. Laws, 218 Mich App at 452. Defendant acknowledges, on appeal, having received copies of the statements months before trial.

The lower court record demonstrates that counsel for defendant repeatedly exercised the opportunity to attack the credibility of the witnesses and to impeach their testimony. Defendant has failed to establish that the prosecution suppressed the evidence. In fact, the prosecution provided defense counsel an opportunity to review its file. Defendant’s contention that a Brady violation occurred is again without support. B.

FAILURE TO DISCLOSE KING’S SENTENCE Defendant also takes issue with the alleged failure of the prosecution to disclose the “actual agreement” regarding the sentence that King would receive following his testimony in this case. King testified at trial regarding his role in and observation of the events. He acknowledged pleading guilty to the same charges as defendant, with the exception of the two drug charges.

King asserted that he was not granted immunity and that he was unaware of what his sentence ultimately would be, but he indicated that in exchange for his plea he had agreed to a sentence of at least 66 months in prison. The prosecution read into the trial court record a portion of the transcript of King’s October 11, 2011 plea proceeding, at which King agreed to plead guilty to ten charges in return for a 66-month minimum sentence.

The trial court denied, on more than one occasion, the existence of any secret agreement regarding King’s sentencing. “Under MCR 6.201(B)(5), a prosecutor has a duty to disclose the details of a witness’s plea agreement, immunity agreement, or other agreement in exchange for testimony.” People v McMullan, 284 Mich App 149, 157; 771 NW2d 810 (2009). “Similarly, pursuant to [Brady, 373 US 83], the prosecutor must disclose any information that would materially affect the credibility of his witnesses.” Id.

Our Supreme Court has stated: “[I]t is one thing to require disclosure of facts (immunity or leniency) which the jury should weigh in assessing a witness’s credibility. It is quite another to require ‘disclosure’ of future possibilities for the jury’s speculation.” People v Atkins, 397 Mich 163, 174; 243 NW2d 292 (1976). In this instance, the prosecution recommended to the trial court a sentence for Kang, which the trial court was free to accept or reject.

At the time of his testimony, the jury was informed of facts pertaining to King and his testimony that were sufficient for the jury to evaluate his credibility. “The focus of required disclosure is not on factors which may motivate a prosecutor in dealing subsequently with a witness, but rather on facts which may motivate the witness in giving certain testimony.” Id. Although defendant contends that the trial court ultimately imposed on King a more lenient sentence than the prosecution had recommended, nothing indicated that the more lenient sentence was the result of any undisclosed sentencing agreement.

King’s agreement with the prosecution was acknowledged and defense counsel had the opportunity to cross-examine Kang. Therefore, the prosecution made the requisite disclosure, and it was sufficient to permit the jury to evaluate Kang’s credibility on the witness stand. We find no error. C. INCLUSION OF KING’S MARIJUANA Defendant further contends that the prosecution committed error by including the amount of marijuana retrieved from King’s motorcycle in the amount of marijuana used to charge defendant. King testified that he possessed one-quarter ounce of marijuana in his motorcycle saddlebag.

The evidence at trial showed that at least 78 marijuana plants were confiscated from defendant’s residence, in addition to 578.6 grams of processed marijuana in various types of containers.

Defendant fails to explain how, or to cite any authority to suggest that, including the minimal amount of Kang’s marijuana in the overall quantity attributable to defendant denied him a fair trial, particularly given the testimony acknowledging the minimal portion of marijuana belonging to King. “An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority.” Kelly, 231 Mich App at 640-641.

The jury was made aware of this distinction and defendant fails, in any manner, to demonstrate or substantiate that a reduction in the amount of confiscated marijuana by one-quarter ounce, given the amount actually attributable to defendant, would serve to negate the drug charges or be so prejudicial to defendant as to deny him a fair trial. D. USE OF CIRCULAR SAW Defendant also alleges misconduct by the prosecution in demonstrating the operation of the circular saw during rebuttal closing argument.

The prosecution contends that it demonstrated the operation of the saw in response to defense counsel’s closing argument that the boys were not truthful regarding their fear following the threats made to them while in defendant’s basement. Defense counsel moved for a mistrial following the prosecution’s operation of the saw during rebuttal closing argument.

Defense counsel admitted to a delay in objecting to the prosecution’s use of the saw based on his uncertainty that the prosecution “was going to do anything more than show the saw to the jury.” The trial court rejected defense counsel’s request for a mistrial. “Where there is no allegation that prosecutorial misconduct violated a specific constitutional right, a court must determine whether the error so infected the trial with unfairness as to make the resulting conviction a denial of due process of law.” People v Blackmon, 280 Mich App 253, 262; 761 NW2d 172 (2008).

The prosecution was permitted, during trial, to briefly demonstrate the circular saw. During rebuttal, the prosecution again plugged the saw into an outlet and ran it briefly in response to argument by defense counsel attempting to minimize the effect of defendant’s behavior on the boys. In general, prosecutors are afforded “ ‘great latitude regarding their arguments and conduct’ ” during closing argument. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995) (citation omitted).

In this case, there is nothing to suggest that the brief repetition of the sound of the saw for the jury was so unfair that it deprived defendant of his right to due process, particularly given the plethora of evidence and testimony regarding the events that occurred in defendant’s residence and the treatment of the boys.

In addition, because defendant has failed to suggest that the trial court erred in admitting the saw and permitting the prosecution to demonstrate the saw to the jury during trial, it cannot be shown that the prosecution’s reference to, or re-demonstration of, the saw during rebuttal closing argument constituted prosecutorial error or misconduct. Prosecutors “are ‘free to argue the evidence and all reasonable inferences from the evidence as it relates to [their] theory of the case.’ ” Id. at 282 (citation omitted; alteration in original). V.

INEFFECTIVE ASSISTANCE OF COUNSEL Defendant next claims he was denied the effective assistance of counsel at trial and asserts a variety of alleged failings on the part of his trial counsel. “Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). The trial court’s factual findings are reviewed for clear error, while its constitutional determinations are reviewed de novo. People v Johnson, 293 Mich App 79, 90; 808 NW2d 815 (2011).

Criminal defendants have a right to the effective assistance of counsel under the United States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20; United States v Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984); People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012).

To establish that a defendant’s trial counsel was ineffective, a defendant must demonstrate that “(1) counsel’s performance was below an objective standard of reasonableness under prevailing professional norms and (2) there is a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different.” People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012); see also Strickland v Washington, 466 US 668, 689-696; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise.” Lockett, 295 Mich at 187.

There also exists a strong presumption that the assistance provided by counsel constituted sound trial strategy. People v Armstrong, 490 Mich 281, 290; 806 NW2d 676 (2011). Decisions pertaining to what evidence to present and which issues to raise during closing argument are presumed to be matters of trial strategy. People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). Defendant contends that his trial counsel was unprepared due to his lack of experience in criminal law.

Specifically, defendant argues that trial counsel failed to (1) obtain and enforce orders for production of discovery materials and to cross-examine the police regarding the delay in providing discovery materials, (2) use certain evidence in his possession to cross-examine witnesses, (3) introduce evidence of defendant’s compliance with the MMMA, (4) elicit witness testimony regarding the boys’ motive for breaking into defendant’s home, (5) submit proposed jury instructions regarding the “fleeing felon rule,” the common-law right to eject trespassers, and the statutory right to citizen’s arrest, and (6) present a “focused and coherent theory” from which the jury could find defendant not guilty.

When asserting ineffective assistance of counsel premised on counsel’s unpreparedness, a defendant must demonstrate prejudice resulting from the lack of preparation. People v Caballero, 184 Mich App 636, 640; 459 NW2d 80 (1990). Lack of experience, standing alone, does not establish ineffective assistance. Kevorkian, 248 Mich App at 415. Further, a claim of ineffective assistance of counsel incorporates “both a performance component and a prejudice component. Both prongs of the test must be fulfilled.” People v Reed, 449 Mich 375, 400; 535 NW2d 496 (1995) (opinion by Boyle, J.).

Although defendant asserts that counsel was ineffective for failing to enforce or procure discovery, he has failed to demonstrate that such conduct was objectively unreasonable or prejudicial. Defendant received the statements the boys made to the police months before trial began. He was permitted to obtain the cellular telephone records of the boys. How counsel used this information or data is presumed to be a matter of trial strategy, and this Court “will not second guess strategic decisions with the benefit of hindsight.” Dunigan, 299 Mich App at 590.

Similarly, the failure to use the boys’ medical records at trial also constituted trial strategy as counsel may have consciously elected not to highlight or focus on the alleged injuries sustained, particularly as they were not an element of the crimes charged and may have garnered sympathy for the boys. In addition, defendant presents nothing to suggest or support that this evidence would have been exculpatory or altered the outcome of the proceedings. On appeal, defendant continues to mistakenly assert that evidence of the prior break-in of his home was exculpatory evidence.

While there was repeated acknowledgment throughout the trial that an earlier break-in and theft had occurred involving some of the boys, defendant erroneously concludes that this prior act served as complete justification for his behavior and the treatment of the boys without any recognition of limitations on a person’s right to defense of self or property. Although defendant contends that counsel’s failure to secure certain discovery impaired his ability to cross-examine witnesses, this is without support in the record as counsel in fact engaged in extensive cross-examination of all witnesses.

Defendant also contends that counsel was ineffective for failing to call as a witness at trial an individual involved in the earlier break-in of defendant’s home, but defendant does not submit any evidence to support his theory that this witness would have testified in the manner he suggests.

Not only is the decision whether to call certain witnesses or present certain evidence generally a matter of trial strategy, Horn, 279 Mich App at 39, but even if we were to assume that the witness would have testified to a previous break-in at defendant’s residence, that testimony would have been merely cumulative, as this was discussed and acknowledged by several witnesses at trial.

Similarly, counsel’s election to not use a timeline as a demonstrative tool before the jury was trial strategy; defense counsel may have been trying to avoid any emphasis on the amount of time the boys were actually restrained in defendant’s home. “A particular strategy does not constitute ineffective assistance of counsel simply because it does not work.” People v Matuszak, 263 Mich App 42, 61; 687 NW2d 342 (2004).

To the extent defendant asserts that counsel failed to elicit information regarding the motives of the boys, this is unavailing as their illegal intent was not dis-positive of or relevant to the crimes charged and was fully developed at trial through the testimony of the boys, who admitted that they had entered defendant’s home to steal marijuana. Defendant’s claim of ineffectiveness of counsel regarding the reasons for King’s agreement to testify is speculative.

King was sufficiently cross-examined regarding his plea agreement to enable the jury to consider his motivation and self-interest when evaluating his credibility. Defendant also faults counsel for his failure to provide the prosecution with copies of letters exchanged between King and Barbara Westervelt (defendant’s girlfriend), in which King implied a political motive for the prosecution. Any such suggestion by King within the letters was of questionable admissibility and relevance.

There is also no record evidence to suggest that defendant’s counsel had or was privy to these letters at an earlier time during the proceedings. Further, counsel had the opportunity to impeach King’s testimony through cross-examination regarding his plea agreement. Additional evidence pertaining to King’s motivation to testify and credibility would have been merely cumulative for purposes of impeachment. Defendant also suggests that counsel was ineffective for failing to adequately demonstrate defendant’s compliance with the MMMA.

Contrary to defendant’s claims, counsel admitted into evidence defendant’s status as a licensed grower. A police officer acknowledged that some of the marijuana confiscated from defendant’s home was in a locked cabinet. An expert was presented on defendant’s behalf to establish problems with his crop, the infestation of spider mites, defendant’s treatment of the problem, and the usability of the infected plants. The expert also opined that the amount of usable marijuana removed from defendant’s residence was consistent with the amount permissible in accordance with his license.

Although defendant contends that counsel failed to introduce sufficient evidence that his marijuana grow operation was legal, and thus hampered his ability to refute the prosecution’s theory (that defendant’s failure to contact the police when the boys broke into his house was due to a desire to protect his illegal or excessive drug operation), he does not explain what further evidence defense counsel should have introduced.

Further, defendant contended at trial that his intent was to scare the boys and that informing their parents, rather than the police, would be an adequate and a preferable means of dealing with the problem. The failure to present certain evidence constitutes ineffective assistance of counsel only if it deprived defendant of a substantial defense. People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004). This has not been demonstrated.

Relatedly, the assertion that trial counsel’s closing argument was ineffectual cannot be sustained as decisions pertaining to what evidence to present and which issues to raise during closing argument are presumed to be matters of trial strategy. Horn, 279 Mich App at 39. Finally, defendant contends that counsel was ineffective based on the failure to submit proposed jury instructions.

This statement is inaccurate, as defense counsel stated on the record that he had submitted proposed instructions related to defendant’s medical marijuana affirmative defense, and the trial court indicated that it had received those instructions. Defense counsel further requested that instructions on misdemeanor assault be included in the instructions for the assault charges. In addition, there were extensive discussions between counsel and the trial court regarding the instructions to be provided to the jury.

Given the extensive discussions on the jury instructions, defendant provides no support for his contention that the failure, if any, of defense counsel to submit proposed written instructions was actually detrimental to him or that defense counsel’s approval of the jury instructions was ill-advised or insufficiently considered, or that additional or different instructions would have altered the outcome of the proceedings. VI.

DOUBLE JEOPARDY Defendant next asserts that his convictions and sentences for unlawful imprisonment and assault with a dangerous weapon violate the Double Jeopardy Clauses of the United States and Michigan Constitutions, because the alleged actions comprised a sequence of events that was one continuous transaction. To preserve appellate review of a double jeopardy violation, a defendant must object at the trial court level. See Meshell, 265 Mich App at 628.

Because defendant did not object on the basis of double jeopardy in the trial court, the issue is not preserved for appellate review. “A double jeopardy challenge presents a question of constitutional law that this Court reviews de novo.” People v Nutt, 469 Mich 565, 573; 677 NW2d 1 (2004). Because defendant did not preserve this issue by raising it below, this Court’s review is for plain error affecting substantial rights.

Meshell, 265 Mich App at 628. “The prohibition against double jeopardy provides three related protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense.” Nutt, 469 Mich at 574. Cumulative punishments do not violate double jeopardy protections if the Legislature intends to authorize cumulative punishments. People v Calloway, 469 Mich 448, 451; 671 NW2d 733 (2003).

Defendant’s four convictions for assault with a dangerous weapon and four convictions for unlawful imprisonment do not infringe his double jeopardy protection. Each of the assault and unlawful imprisonment charges involved distinct acts and conduct pertaining to four different individuals. To ascertain whether a defendant is being punished twice for the same offense, Michigan courts apply the Blockburger test. Nutt, 469 Mich at 576. The focus of the Blockburger test is on the statutory elements of the charged offenses. Id.

If each offense necessitates proof of a fact that the other does not, the prohibition against double jeopardy is not violated, “ ‘notwithstanding a substantial overlap in the proof offered to establish the crimes.’ ” Id,., quoting Iannelli v United States, 420 US 770, 785 n 17; 95 S Ct 1284; 43 L Ed 2d 616 (1975). It is readily apparent that assault with a dangerous weapon and unlawful imprisonment are separate and distinct offenses and that “ ‘each [offense] requires proof of a fact that the other does not....’” Nutt, 469 Mich at 576, quoting Iannelli, 420 US at 785 n 17.

Specifically, the elements of assault with a deadly weapon are “(1) an assault, (2) with a dangerous weapon, and (3) with the intent to injure or place the victim in reasonable apprehension of an immediate battery.” Avant, 235 Mich App at 505.

In contrast, a person is guilty of unlawful imprisonment when that person knowingly restrains another person and (1) the restraint was “by means of a weapon or dangerous instrument,” (2) “[t]he restrained person was secretly confined,” or (3) “[t]he person was restrained to facilitate the commission of another felony or to facilitate flight after commission of another felony.” MCL 750.349b(l). Further, this Court has recognized that “[t]wo or more separate criminal offenses can occur within the ‘same transaction.’ ” People v Ryan, 295 Mich App 388, 402; 819 NW2d 55 (2012).

Accordingly, defendant’s assertion that his convictions of felonious assault and unlawful imprisonment violated his right against double jeopardy is without merit. VII. JOINT TRIAL Defendant next contends that the trial court erred in trying defendant and Brontkowski jointly before a single jury. This Court reviews for an abuse of discretion a trial court’s decision regarding the severance of trials when multiple defendants are involved. People v Hana, 447 Mich 325, 346; 524 NW2d 682 (1994). A trial court abuses its discretion when it chooses an outcome that is outside the range of principled outcomes.

People v Blackston, 481 Mich 451, 460; 751 NW2d 408 (2008). MCR 6.121(

C) provides: “On a defendant’s motion, the court must sever the trial of defendants on related offenses on a showing that severance is necessary to avoid prejudice to substantial rights of the defendant.” “Severance is mandated under MCR 6.121(

C) only when a defendant provides the court with a supporting affidavit, or makes an offer of proof, that clearly, affirmatively, and fully demonstrates that his substantial rights will be prejudiced and that severance is the necessary means of rectifying the potential prejudice.” Hana, 447 Mich at 346. “The failure to make this showing in the trial court, absent any significant indication on appeal that the requisite prejudice in fact occurred at trial, will preclude reversal of a joinder decision.” Id. at 346-347.

There is no absolute right to separate trials, and in fact, “[a] strong policy favors joint trials in the interest of justice, judicial economy, and administration.” People v Harris, 201 Mich App 147, 152; 505 NW2d 889 (1993). Severance should be granted when defenses are antagonistic. Id. “ ‘A defense is deemed antagonistic when it appears that a codefendant may testify to exculpate himself and to incriminate the defendant.’ ” Id. at 153, quoting People v Jackson, 158 Mich App 544, 555; 405 NW2d 192 (1987).

Further, “defenses must be not only inconsistent, but also mutually exclusive or irreconcilable.” People v Cadle (On Remand), 209 Mich App 467, 469; 531 NW2d 761 (1995).

In other words, the “tension between defenses must be so great that a jury would have to believe one defendant at the expense of the other.” Hana, 447 Mich at 349 (quotation marks and citation omitted). “Incidental spillover prejudice, which is almost inevitable in a multi-defendant trial, does not suffice.” Id. (quotation marks and citation omitted; alteration omitted). “Finger pointing by the defendants when [an aider and abettor] theory is pursued does not create mutually exclusive antagonistic defenses.” Id. at 360-361.

Because an aider and abettor can also be held liable as a principal, both defendants can be convicted at a single trial “without any prejudice or inconsistency[.]” Id. at 361. With the exception of the drug charges against defendant, defendant and Brontkowski were charged with precisely the same crimes. The witnesses and evidence to be admitted on the shared charges did not vary between defendant and Brontkowski. Defendant and Brontkowski did not deny that the events transpired or that they participated in them.

Both, however, challenged the intent element of the crimes charged and asserted the right to defend a home against intruders. Because the defenses asserted at trial were fully consistent with one another and were neither mutually exclusive nor irreconcilable, there existed no basis for severance of the trials. VIII. BINDOVER Defendant contends that the trial court also erred by denying his motion to quash, which was based primarily on the questionable credibility of the boys as witnesses and their own criminal intent in the events that transpired.

He further asserts that bind-over on the assault charges was erroneous because of the absence of any intent to do harm. According to defendant, the only intent demonstrated was defendant’s effort to scare the boys so that he could secure information and inform their parents about their conduct. Defendant also argues that the felony-firearm charge should be dismissed if his felony convictions are reversed on appeal.

Because we find that sufficient evidence was adduced at trial to uphold defendant’s convictions, we need not address his claim of an erroneous bindover. “If a defendant is fairly convicted at trial, no appeal lies regarding whether the evidence at the preliminary examination was sufficient to warrant a bindover.” People v Wilson, 469 Mich 1018 (2004). Additionally, defendant’s argument regarding his felony-firearm conviction is meritless in light of our upholding his underlying felony convictions. IX.

JURY INSTRUCTIONS Next, defendant cites a number of statutes in asserting that the jury instructions delivered at trial were deficient, but he does not identify or provide to this Court any instructions that were requested but not given. Nor does defendant indicate how any missing instructions were applicable to the evidence or the theories of defendant’s case. Finally, defendant fails to show the manner in which the omission of any instructions prejudiced defendant. We thus consider this issue abandoned. See Kevorkian, 248 Mich App at 389.

Moreover, defense counsel’s verbal indication that he had no objections to the instructions as the trial court read them to the jury constitutes a waiver. People v Kowalski, 489 Mich 488, 505 n 28; 803 NW2d 200 (2011) (“The Court of Appeals has consistently held that an affirmative statement that there are no objections to the jury instructions constitutes express approval of the instructions, thereby waiving review of any error on appeal.”). X. INABILITY TO PRESENT A DEFENSE Defendant also contends that the trial court precluded him from presenting a defense.

To preserve an issue for appellate review, a party must object below and specify the same ground for objection that it argues on appeal. People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). “As a general rule, issues that are not properly raised before a trial court cannot be raised on appeal absent compelling or extraordinary circumstances.” People v Grant, 445 Mich 535, 546; 520 NW2d 123 (1994). Because defendant did not raise this issue in the lower court, it is not preserved for appellate review. Whether a defendant was deprived of his constitutional right to present a defense is reviewed de novo.

Unger, 278 Mich App at 247. Unpreserved constitutional issues are reviewed for plain error affecting a defendant’s substantial rights. People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999). An error is plain if it is clear or obvious. Id. at 763. An error affected a defendant’s substantial rights if it affected the outcome of the lower court proceedings. Id. It is well established that a criminal defendant has a constitutional right to a “meaningful opportunity to present a complete defense.” People v King, 297 Mich App 465, 473; 824 NW2d 258 (2012) (quotation marks and citations omitted).

A criminal defendant must be provided a meaningful opportunity to present evidence in his or her own defense. Unger, 278 Mich App at 249. That right is not unlimited.

This Court has explained: The right to present a complete defense “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Michigan, like other states, “has a legitimate interest in promulgating and implementing its own rules concerning the conduct of trials.” And our Supreme Court has “broad latitude under the Constitution to establish rules excluding evidence from criminal trials.” Thus, an “accused must still comply with ‘established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’ ” The Michigan Rules of Evidence do not infringe on a defendant’s constitutional right to present a defense unless they are “ ‘arbitrar/ or ‘disproportionate to the purposes they are designed to serve.’ ” [King, 297 Mich App at 473-474 (citations omitted).] Defendant asserts that the trial court denied him the opportunity to present witnesses and evidence consistent with his claims of self-defense, defense of his home, the fleeing-felon rule, the common-law right to eject trespassers and the statutory right of a citizen to detain and arrest a felon.

However, he fails to identify any such potential witnesses or to reference a citation to the lower court record demonstrating any such denial. Defendant also fails to provide information pertaining to the allegedly precluded evidence or testimony, or how the trial court’s alleged failure to admit it hindered his ability to present a defense. Defendant provides no detailed assertions or analysis in support of his contention of error on this issue.

As noted in conjunction with other of defendant’s issues on appeal: It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position. [Kevorkian, 248 Mich App at 389 (quotation marks and citation omitted).] Because defendant has failed to sufficiently develop this argument or to provide any record citation in support of his claim, we find that the issue has been abandoned on appeal.

Id. Further, defendant in fact argued at trial that he had the right to defend himself and his home from intruders and that he attempted to make a “citizen’s arrest.” Defendant has not demonstrated plain error with regard to this issue. XI. SCORING OF OFFENSE VARIABLES Defendant next challenges the trial court’s scoring of eight offense variables. Specifically, the trial court scored the challenged offense variables as follows: (

a) OV 1 at 15 points, (

b) OV 2 at 5 points, (

c) OV 3 at 10 points, (

d) OV 4 at 10 points, (

e) OV 7 at 50 points, (

f) OV 8 at 15 points, (

g) OV 10 at 10 points, and (

h) OV 12 at 25 points. As delineated in People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013): Under the sentencing guidelines, the circuit court’s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence. 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. [Citation omitted.] MCL 777.31 governs the scoring of OV 1 and pertains to the aggravated use of a weapon. MCL 777.31 provides for a score of 25 points if “[a] firearm was discharged at or toward a human being or a victim was cut or stabbed with a knife or other cutting or stabbing weapon,” and for a score of 15 points if “[a] firearm was pointed at or toward a victim or the victim had a reasonable apprehension of an immediate battery when threatened with a knife or other cutting or stabbing weapon.” MCL 777.31(l)(

a) and (c). In this case, OV 1 was initially scored at 25 points, but was adjusted by the trial court to 15 points. Testimony was elicited at trial regarding the placement of a circular saw at the throat of one of the boys and later being run in the vicinity of a boy while duct-taped.

This Court in People v Lange, 251 Mich App 247, 256; 650 NW2d 691 (2002), examined the difference between objects “designed for the purpose of bodily assault or defense” that “carry their dangerous character because so designed and are, when employed, per se, deadly” and those objects that “are not dangerous weapons unless turned to such purpose.” (Quotation marks and citations omitted.) Both types of objects qualify as “weapons” under MCL 777.31. Lange, 251 Mich App at 256-257; see also People v Brown, 406 Mich 215, 222-223; 277 NW2d 155 (1979).

In addition, testimony and evidence pertaining to other “cutting” instruments, such as a hatchet and a knife, were produced at trial. The manner in which defendant and his associates used the circular saw to instill fear, coupled with the “cutting” nature of the saw, supported the trial court’s score of 15 points for this offense variable. OV 2 relates to the possession or use of a lethal weapon and is governed by MCL 777.32, which provides for a score of 5 points if “[t]he offender possessed or used a pistol, rifle, shotgun, or knife or other cutting or stabbing weapon.” MCL 777.32(d).

In scoring 5 points for OV 2, the trial court explained, “The Court’s already indicated, I’m persuaded that there was a cutting weapon used by these Defendants, even if not this Defendant in particular.” Further, under an aiding and abetting theory, defendant’s associate, Brontkowski, had a firearm that was displayed to the boys, in addition to King’s possession of a sheathed samurai sword and a hatchet. The trial court was justified in scoring 5 points for this offense variable.

Defendant objected to the scoring of 10 points for OV 3, asserting that the trial court improperly implied that medical treatment was sought or procured by more than one of the boys. This offense variable is governed by MCL 777.33, which provides for a score of 10 points if “[b]odily injury requiring medical treatment occurred to a victim[.]” MCL 777.33(l)(d). The lower court record established that one of the boys was transported by his mother to Macomb Hospital. Another of the boys was also reportedly transported to the hospital in an ambulance after police arrived.

Sufficient evidence existed to support the trial court’s scoring of this offense variable. Defendant also challenges the trial court’s scoring of 10 points for OV 4, which concerns psychological injury to a victim. MCL 777.34. MCL 777.34(l)(

a) provides for a score of 10 points if “[s]erious psychological injury requiring professional treatment occurred to a victim [.]” In scoring 10 points for this variable, the trial court noted that at trial one of the boys testified that he was in counseling for PTSD (posttraumatic stress disorder) and that he was experiencing problems with memory and increased anger, and another asserted that he had also consulted a therapist. Sufficient evidence was presented to support the trial court’s scoring of this variable. Defendant also objected to the scoring of 50 points for OV 7, MCL 777.37, which pertains to aggravated physical abuse. MCL 777.37(l)(

a) provides for a score of 50 points if “[a] victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense [.]” In scoring 50 points for OV 7, the trial court stated that the “last category [conduct designed to substantially increase the fear and anxiety a victim suffered during the offense] appears to apply on all force [sic] with what the jury found in this case.” In this case, defendant and his associates blindfolded and duct-taped the boys and made verbal threats accompanied by the sounds of a circular saw in addition to striking the boys with fists, a sheathed sword, and a hatchet.

The use of the circular saw is akin to the racking of a shotgun as in Hardy as a mechanism to “substantially increase the fear of [a] victim beyond the usual level that accompanies a [crime], to the point where the victim feared imminent death.” Hardy, 494 Mich at 445. Two of the boys lost control of their bodily functions during the events and the threats that occurred in defendant’s residence. Several of the boys testified to being placed in sufficient fear to evoke crying and screaming.

Two indicated that there were additional threats to sever their toes or fingers — the defendant or his associates grabbed the boys’ extremities while some form of tool or implement was shown, and the defendant or his associates also used the saw in conjunction with these verbal threats. The trial court did not err in its scoring of this offense variable.

Defendant also objected to the scoring of 15 points for OV 8, MCL 777.38(l)(a), which provides for a score of 15 points when “[a] victim was asported to another place of greater danger or to a situation of greater danger or was held captive beyond the time necessary to commit the offense [.]” At sentencing, defendant argued that there was no asportation of the boys, citing the short time during which they were restrained in the home. In scoring 15 points, the trial court referred to the seizure of one of the boys from the porch and his forceful asportation to the basement.

Further, there was evidence that the boys were physically restrained while they were threatened and struck with fists and other implements after having been moved to, and after having their egress prevented from, the basement of defendant’s residence. Scoring 15 points for OV 8 was appropriate.

Defendant challenged the scoring of 10 points for OV 10, MCL 777.40, suggesting that the boys were “almost adults . . . who put up quite a struggle in this.” According to MCL 777.40(l)(b), 10 points are to be scored for OV 10 when “[t]he offender exploited a victim’s physical disability, mental disability, youth or agedness, or a domestic relationship, or the offender abused his or her authority status[.]” MCL 777.40(3)(

b) defines “exploit” as the “manipulation of] a victim for selfish or unethical purposes!.]” “ ‘Abuse of authority status’ means a victim was exploited out of fear or deference to an authority figure, including, but not limited to, a parent, physician, o

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