People of Michigan v. Eddie Dejuan-Tolbert Smith ( 2014 )


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  •                           STATE OF MICHIGAN
    COURT OF APPEALS
    PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
    October 23, 2014
    Plaintiff-Appellee,
    v                                                                   No. 315842
    Wayne Circuit Court
    EDDIE DEJUAN-TOLBERT SMITH,                                         LC No. 12-005270-FC
    Defendant-Appellant.
    Before: STEPHENS, P.J., and TALBOT and BECKERING, JJ.
    PER CURIAM.
    A jury convicted defendant, Eddie Dejuan-Tolbert Smith, of two counts of first-degree
    premeditated murder, MCL 750.316(1)(a), felon in possession of a firearm, MCL 750.224f, and
    possession of a firearm during the commission of a felony, MCL 750.227b. The trial court
    sentenced defendant to life imprisonment without parole for each first-degree murder conviction
    and three to five years’ imprisonment for the felon-in-possession conviction, to be served
    concurrently, but consecutive to a two-year term of imprisonment for the felony-firearm
    conviction. Defendant appeals as of right. We affirm.
    I. PERTINENT FACTS
    Defendant’s convictions arise from the shooting deaths of two young women, Shenil
    Jefferies and Kendra Wolfe, in June 2011. The women came to Detroit from Flint with
    defendant, a man known to them as “Twenty” or “Eddie.” The prosecutor’s theory at trial was
    that defendant killed Kendra because he believed that she had “set him up,” and he killed Shenil
    because of her association with Kendra. The prosecution presented evidence that shortly before
    the murders, Shenil called her sister, Sherel Johnson Jefferies, and indicated that they had left a
    strip club and were on their way to defendant’s apartment. During the call, defendant
    purportedly took Shenil’s cellular telephone and told Sherel that the women were drunk and
    would be fine. However, Sherel could hear the women crying and pleading for their lives, and
    begging defendant not to shoot them, before the telephone went dead. At one point, Sherel
    testified that defendant told the women that he “had too much to live for,” and “they had to die.”
    The prosecution also presented evidence that Shenil had left voicemail messages with
    Sashay Johnson and Laronzo Southall. Defendant’s voice was identified on the voicemails,
    which included threats to kill the victims. In addition to the voicemail messages, the prosecution
    -1-
    admitted, over defense counsel’s objection, text messages that Shenil sent to Southall. The text
    messages indicated, “[t]his dude pulled a gun on me” and that “I’m about to get killed.”
    The police found blood that matched Kendra’s DNA at defendant’s apartment, which had
    been vacated shortly after the offenses and appeared to have been cleaned with bleach. In
    addition, all of defendant’s furniture and possessions had been removed from the apartment.
    The victims’ bodies were discovered at a vacant home. Kaitlynn Zinda, who had been
    involved in a sexual relationship with defendant and became pregnant, testified that the last time
    she saw defendant was on a weekend in June 2011. On Saturday, she picked him up outside of
    his apartment building and he asked her to drive to an abandoned house approximately 20 to 30
    minutes away from his apartment. There, he walked to the back of the house and appeared to
    open the back door, then look around in the grass. He was gone for approximately five minutes.
    Zinda identified a photograph of the abandoned house, which was the same place where the
    victims’ bodies were recovered. At the time, defendant told Zinda that one of his relatives had
    just purchased the home and that he was merely there to check on the home. After visiting the
    abandoned home, Zinda and defendant went to a motel to sleep. The next morning, Zinda
    learned from Sashay that the victims were missing. Defendant instructed Zinda not to tell
    Sashay he was with her, and he claimed that the women had left the strip club with different
    men. Defendant had Zinda drop him off at a liquor store where he said he was going to attempt
    to locate Kendra. After the police discovered the victims’ bodies a few days later, defendant
    never spoke to Zinda again or returned her telephone calls. An autopsy revealed that Kendra had
    sustained several bruises and abrasions. The cause of death for both women was multiple
    gunshot wounds.
    II. JURY INSTRUCTIONS
    In his first issue on appeal, defendant argues that a new trial is required because the jury
    was informed that he had previously been convicted of a felony. We disagree. Defendant was
    charged with being a felon in possession of a firearm. To minimize the possibility of prejudice
    resulting from the introduction of evidence regarding defendant’s prior conviction, which was
    used to establish his status as a convicted felon, defendant stipulated that he was previously
    convicted of an unspecified felony and was ineligible to lawfully possess a firearm.1 “A
    stipulation is an agreement, admission, or concession made by the parties in a legal action with
    regard to a matter related to the case.” People v Metamora Water Serv, Inc, 
    276 Mich App 376
    ,
    385; 741 NW2d 61 (2007). The purpose of a stipulation is to avoid delay, trouble, and expense.
    
    Id.
     “When the parties stipulate a set of facts, the stipulated facts are binding on the court . . . .”
    
    Id.
     A party cannot ask the court to accept a stipulation and then submit on appeal that the
    acceptance was erroneous. People v McCray, 
    210 Mich App 9
    , 14; 533 NW2d 359 (1995).
    1
    Defendant’s contention that this is an issue of first impression is erroneous. In People v
    Mayfield, 
    221 Mich App 656
    , 660; 562 NW2d 272 (1997), this Court adopted safeguards for
    felon-in-possession charges that include, as occurred in the instant case, the introduction of an
    unspecified felony conviction through a stipulation.
    -2-
    Defendant waived appellate review of this issue by stipulating that he was previously
    convicted of a felony and was ineligible to lawfully possess a firearm. Waiver is the intentional
    relinquishment or abandonment of a known right, and a defendant who waives a right
    extinguishes any underlying error, precluding appellate review. People v Vaughn, 
    491 Mich 642
    , 663; 821 NW2d 288 (2012). See also People v Kowalski, 
    489 Mich 488
    , 504-505; 803
    NW2d 200 (2011) (explaining that a party may not approve of a course of action taken in the
    trial court and object on appeal). The prosecutor placed the stipulation on the record, and
    defense counsel affirmatively indicated that he agreed with the stipulation for purposes of the
    felon-in-possession charge. We have expressly approved such a method as being an adequate
    safeguard of a defendant’s rights. People v Green, 
    228 Mich App 684
    , 691-692; 580 NW2d 444
    (1998); People v Mayfield, 221 Mich App at 660. Although defendant now argues that he should
    have been given the option of pleading no contest to the charge outside the presence of the jury,
    defendant cannot approve a course of action in the trial court and then object to that action on
    appeal. Kowalski, 489 Mich at 505. Further, defendant never offered to plead guilty to this
    charge outside the presence of the jury. We therefore reject this claim of error.
    III. VOIR DIRE
    Next, defendant argues that the trial court erred by refusing to allow defense counsel to
    participate in jury voir dire. The record reveals that the trial court conducted voir dire, but the
    prosecutor and defense counsel were permitted to approach the bench to have discussions with
    the trial court. In addition, the parties were permitted to exercise peremptory and for-cause
    challenges. Ordinarily, we review a trial court’s decision concerning the scope and conduct of
    voir dire for an abuse of discretion. People v Orlewicz, 
    293 Mich App 96
    , 100; 809 NW2d 194
    (2011). Because defendant never objected to the scope of the trial court’s voir dire, this issue is
    unpreserved. We review an unpreserved claim of error for plain error affecting substantial
    rights. People v Bowling, 
    299 Mich App 552
    , 557; 830 NW2d 800 (2013). Defendant also
    argues that his trial counsel was ineffective for failing to request more participation in the voir
    dire process. Because defendant did not raise an ineffective assistance of counsel claim in a
    motion for a new trial or Ginther2 hearing, appellate review of that issue is limited to mistakes
    apparent on the record. People v Payne, 
    285 Mich App 181
    , 188; 774 NW2d 714 (2009).
    MCR 6.412 governs selection of the jury and provides, in relevant part:
    (C) Voir Dire of Prospective Jurors.
    (1) Scope and Purpose. The scope of voir dire examination of prospective
    jurors is within the discretion of the court. It should be conducted for the
    purposes of discovering grounds for challenges for cause and of gaining
    knowledge to facilitate an intelligent exercise of peremptory challenges. The
    court should confine the examination to these purposes and prevent abuse of the
    examination process.
    2
    People v Ginther, 
    390 Mich 436
    , 443; 212 NW2d 922 (1973).
    -3-
    (2) Conduct of the Examination. The court may conduct the examination
    of prospective jurors or permit the lawyers to do so. If the court conducts the
    examination, it may permit the lawyers to supplement the examination by direct
    questioning or by submitting questions for the court to ask. On its own initiative
    or on the motion of a party, the court may provide for a prospective juror or jurors
    to be questioned out of the presence of the other jurors.
    “A defendant does not have the right to have counsel conduct the voir dire.” People v
    Washington, 
    468 Mich 667
    , 674; 664 NW2d 203 (2003). When the trial court conducts voir dire,
    an abuse of discretion occurs if it fails to adequately question jurors about potential bias to allow
    the parties to intelligently exercise challenges for cause. 
    Id.
     “The purpose of voir dire is to
    afford counsel an opportunity to elicit sufficient information to develop a rational basis for
    excluding jurors for cause or by peremptory challenge.” People v Larry Smith (After Remand),
    
    122 Mich App 202
    , 206-207; 332 NW2d 401 (1981). Voir dire is important because it is the
    only mechanism the defendant has to ensure the selection of an impartial jury, and it allows for
    the discovery of hidden bias that renders a potential juror incompetent. People v Tyburski, 
    445 Mich 606
    , 618-619; 518 NW2d 441 (1994) (MALLETT, J.). “It is imperative, in securing the
    rights of the parties to an impartial jury, for the court to allow the elicitation of enough
    information so that the court itself can make an independent determination of a juror’s ability to
    be impartial.” 
    Id. at 620
    .
    The record does not support defendant’s claim of error. A review of the record reveals
    that the trial court adequately conducted a thorough inquiry into areas such as bias, the
    presumption of innocence, the burden of proof, and reasonable doubt. Further, the record
    indicates that if the attorneys needed additional inquiry, they were permitted to approach the
    bench to ask the trial court to obtain additional information from the jurors. Although defendant
    now asserts that the trial court’s questioning was superficial and did not explore issues of lying,
    credibility, and self-incrimination, he fails to express what additional questions should have been
    asked to the prospective jurors. Further, contrary to what defendant argues, the trial court did not
    plainly err by failing to explore the concept of reasonable doubt other than by explaining the
    principle and inquiring whether the prospective jurors had a philosophical or ideological
    disagreement with the concept. Indeed, there is no indication on the record that the jurors did not
    understand the concept. Overall, the record demonstrates that the scope of the trial court’s voir
    dire was sufficient to develop a rational basis to exclude prospective jurors. Accordingly,
    defendant’s ineffective assistance of counsel claim must also be rejected. “Failing to advance a
    meritless argument or raise a futile objection does not constitute ineffective assistance of
    counsel.” People v Ericksen, 
    288 Mich App 192
    , 201; 793 NW2d 120 (2010).
    IV. ADMISSION OF TEXT MESSAGES
    Defendant next argues that the trial court abused its discretion by admitting various text
    messages Shenil purportedly sent to Southall without first authenticating them in accordance
    with MRE 901. We disagree. A trial court’s decision to admit evidence is reviewed for an abuse
    of discretion. People v Gursky, 
    486 Mich 596
    , 606; 786 NW2d 579 (2010). Additionally, the
    determination whether evidence has been properly authenticated is within the discretion of the
    trial court. People v Ford, 
    262 Mich App 443
    , 460; 687 NW2d 119 (2004). When the decision
    -4-
    to admit evidence involves a preliminary question of law, such as whether a rule of evidence
    precludes admission, this Court’s review is de novo. Gursky, 
    486 Mich at 606
    .
    MRE 901 provides, in relevant part:
    (a) General Provision.         The requirement of authentication or
    identification as a condition precedent to admissibility is satisfied by evidence
    sufficient to support a finding that the matter in question is what its proponent
    claims.
    (b) Illustrations. By way of illustration only, and not by way of
    limitation, the following are examples of authentication or identification
    conforming with the requirements of this rule:
    (1) Testimony of Witness With Knowledge. Testimony that a matter is
    what it is claimed to be.
    ***
    (4) Distinctive Characteristics and the Like. Appearance, contents,
    substance, internal patterns, or other distinctive characteristics, taken in
    conjunction with circumstances.
    In People v McDade, 
    301 Mich App 343
    , 352-353; 836 NW2d 266 (2013), this Court
    addressed the authentication requirement and explained:
    An example of authentication or identification that conforms to the
    requirements of MRE 901(a) is “[t]estimony that a matter is what it is claimed to
    be.” MRE 901(b)(1). “It is axiomatic that proposed evidence need not tell the
    whole story of a case, nor need it be free of weakness or doubt. It need only meet
    the minimum requirements for admissibility.” People v Berkey, 
    437 Mich 40
    , 52;
    467 NW2d 6 (1991). Further, “a trial court may consider any evidence regardless
    of that evidence’s admissibility at trial, as long as the evidence is not privileged,
    in determining whether the evidence proffered for admission at trial is
    admissible.” People v Barrett, 
    480 Mich 125
    , 134; 747 NW2d 797 (2008).
    The requirement of authentication as a condition precedent to admissibility is satisfied
    when the evidence is sufficient to support a finding that the matter is what the proponent claims.
    
    Id.
     With regard to written messages, the contents of the messages, including distinctive
    characteristics contained therein, may be used to authenticate the messages. Ford, 262 Mich
    App at 461-462. In addition, the circumstances surrounding the writing of the message may be
    considered in determining whether the message is properly authenticated. People v Smith, 
    150 Mich App 630
    , 637-638; 389 NW2d 713 (1986).
    In the present case, Shenil was not observed typing and sending the messages from her
    cellular telephone, but the telephone number attributed to her sent messages to Southall, who was
    her boyfriend. Southall testified that the texts contained the tagline “Beautiful,” which was a
    reference that Shenil used. In addition to the text messages, Southall received voicemail
    -5-
    messages from Shenil. The information in the text messages was consistent with the information
    contained in the voicemails, and it was consistent with the information that Sherel received from
    Shenil. Under these circumstances, the surrounding factors were sufficient to indicate that the
    text messages were what the prosecutor, as the proponent of the evidence, claimed them to be,
    namely, text messages sent by Shenil. The evidence was not required to be free from all
    weakness or doubt to satisfy the authentication requirement. McDade, 301 Mich App at 353.
    Therefore, the trial court did not abuse its discretion in admitting the evidence. Ford, 262 Mich
    App at 460.
    V. PHOTOGRAPHIC EVIDENCE
    Defendant next argues that the trial court erred by admitting photographs of the victims’
    bodies. We disagree. “A decision whether to admit photographs is within the sound discretion
    of the trial court and will not be disturbed on appeal absent an abuse of discretion.” People v
    Gayheart, 
    285 Mich App 202
    , 227; 776 NW2d 330 (2009).
    Gruesome photographs admitted solely to arouse the sympathies or prejudices of the
    jurors may be error requiring reversal. People v Ho, 
    231 Mich App 178
    , 188; 585 NW2d 357
    (1998). When a photograph is admitted for an otherwise proper purpose, it is not inadmissible
    simply because of its gruesome nature or the shocking details of the crime. 
    Id.
     Photographs will
    not be excluded simply because a witness can testify regarding the information contained in the
    photographs, and gruesomeness alone will not warrant exclusion. People v Mills, 
    450 Mich 61
    ,
    76; 537 NW2d 909 (1995), mod on other grounds 
    450 Mich 1212
     (1995). All three forms of
    murder, felony murder, first-degree murder, and second-degree murder, require proof of intent.
    People v Herndon, 
    246 Mich App 371
    , 386; 633 NW2d 376 (2001). Photographs that illustrate
    the nature and extent of the victim’s injuries can be used to establish intent. Mills, 450 Mich at
    71. The jury is entitled to see the severity and extent of the injuries without relying solely upon
    expert testimony. Gayheart, 285 Mich App at 227. Photographs that show the victim as left by
    the assailant without intervention by medical examiners depict the corpus delicti, and the
    admission of such evidence rests in the sound discretion of the trial judge. People v Eddington,
    
    387 Mich 551
    , 561-562; 198 NW2d 297 (1972). When a trial judge individually examines
    photographs and considers the impact on the jury’s determination, an abuse of discretion does
    not occur merely because the photographs depict a brutal murder. Herndon, 246 Mich App at
    414.
    Here, the trial court observed that numerous photographs were available, several of which
    were “appalling,” and that the prosecutor had selected the four least shocking photographs. The
    court found that the proffered photos were probative of whether the victims were killed at the
    location where they were found, and that their prejudicial effect was relatively minor. Upon
    review of the photographs, we note that two of them were taken from a distance, and they do not
    reflect the gruesome condition described by the medical examiner. The remaining two photos
    depict a torso of one victim with blood splatter across the mid-section with the other victim’s
    arm and body draped over her. Although the medical examiner testified to a substantial maggot
    infestation that skeletized the face of one victim, the photographs do not exemplify that
    testimony. The photographs do not depict the faces of the victims. Contrary to defendant’s
    contentions, we find that the photographs were probative of the location of the victims’ deaths as
    well as of defendant’s intent. In addition, having reviewed the photographs, we agree with the
    -6-
    trial court that the photographs were not unduly prejudicial. Therefore, the trial court did not
    abuse its discretion when it admitted the photographs.
    VI. PROSECUTORIAL MISCONDUCT
    Defendant next argues that repeated egregious comments by the prosecutor require a new
    trial. We disagree. Because there was no objection to the challenged conduct, this issue is
    unpreserved. Unpreserved claims of prosecutorial misconduct are reviewed for plain error
    affecting substantial rights. People v Roscoe, 
    303 Mich App 633
    , 648; 846 NW2d 402 (2014).
    “Reversal is warranted only when the plain, forfeited error resulted in the conviction of an
    actually innocent defendant or when the error seriously affected the fairness, integrity, or public
    reputation of judicial proceedings.” People v McCuller, 
    479 Mich 672
    , 695; 739 NW2d 563
    (2007) (citation and quotation omitted). When the defendant’s claim is unpreserved, this Court
    will not find error requiring reversal when a curative instruction could have displaced any
    prejudicial effect of the prosecutor’s improper argument. People v Unger, 
    278 Mich App 210
    ,
    235; 749 NW2d 272 (2008).
    During defense counsel’s cross-examination of Zinda, counsel highlighted
    inconsistencies between Zinda’s preliminary examination testimony and her testimony at trial.
    Counsel repeatedly questioned whether Zinda was telling the truth and whether she was
    testifying against defendant because she was angry that he was married. The following exchange
    took place between defense counsel and Zinda:
    Q. You found out through someone else that in fact the person who,
    whose child you were caring [sic] was married to someone; is that correct?
    A. Correct.
    Q. And that didn’t – you’re telling the jury that didn’t cause you in any
    way to be bitter in any way towards Eddie Smith?
    A. I was not bitter.
    ***
    Q. So again, I ask you are you testifying the way you are because you’re
    bitter against this man and want to exaggerate things against him?
    A. No. No.
    On redirect examination, the prosecutor attempted to rehabilitate Zinda after defense
    counsel’s attacks on her credibility and motivation. Zinda explained that she was pregnant with
    defendant’s child at the time of her preliminary examination testimony and felt “horrible”
    because the person who impregnated her was on trial for murdering two of her friends. She was
    also nervous at the preliminary examination and at trial. The following exchange occurred
    between the prosecutor and Zinda:
    Q. Have I ever talked to you on the phone and told you what to say?
    -7-
    A. No.
    Q. Has the officer ever talked to you on the phone and told you what to
    say?
    A. No.
    Q. Are you lying here because you’re jealous that you lost such a winner?
    A. No. [Emphasis added.]
    During closing argument, the prosecutor submitted that although direct evidence was
    lacking, the circumstantial evidence was as powerful as direct evidence because Shenil had
    described to her sister, Sherel, what was transpiring. Specifically, Shenil advised that they had
    left the strip club and were heading to an apartment where they would be held until defendant
    made his preparation to kill them. In context, the prosecutor argued:
    But going back to the testimony of Sherel Johnson-Jefferies. She’s trying
    to—Shenil is trying to explain to her sister where they’re going. And that she
    even indicates she hears the male voice on the phone saying they drunk, they
    fighting, they’re gonna be all right. She stays on the phone with her sister
    because she knows something’s not right. And her sister’s telling her where
    they’re going to this place after they leave this strip club.
    Now, let me say this just in passing. I, I certainly hope and trust that none
    of you—let me, let me start over.
    I certainly hope and trust that almost everybody would, here would hope
    that their daughters wouldn’t be leaving town to go to strip clubs and run around
    with people like Eddie Smith. But I want to point out to you that this is not a
    question of morals or judging people for their behavior or the mistakes that very
    young people may make.
    We’re not here to judge people’s morals. But based on behavior we know,
    I can think of someone right off the top of my head whose behavior is much more
    of an abomination than these ladies. So let’s try to focus on what’s going on here
    in this case and not the fact that we certainly wouldn’t recommend this as
    behaviors for these two young ladies.
    You heard most importantly from Sherel Johnson-Jefferies that she heard
    Kendra’s voice saying that Twenty is hitting her. Kendra was saying why are you
    hitting me, Twenty? That’s what she heard.
    Shenil was saying please don’t shoot her. And shortly after that the phone
    cut off. But before it cut off Twenty had something to say that Sherel heard, and
    that was they had to die.
    -8-
    Questions of prosecutorial misconduct are decided on a case by case basis, and the
    prosecutor’s remarks must be evaluated in context. Roscoe, 303 Mich App at 648. When
    determining whether the prosecutor’s conduct deprived a defendant of a fair and impartial trial,
    the defendant bears the burden of demonstrating that the conduct resulted in a miscarriage of
    justice. People v Brown, 
    279 Mich App 116
    , 134; 755 NW2d 664 (2008). “A prosecutor may
    fairly respond to an issue raised by the defendant.” Id. at 135. “Prosecutors have discretion on
    how to argue the facts and reasonable inferences arising therefrom, and are not limited to
    presenting their arguments in the blandest terms possible.” People v Meissner, 
    294 Mich App 438
    , 456; 812 NW2d 37 (2011). Despite this discretion, it is improper for the prosecutor to
    appeal to the jury to sympathize with the victim. 
    Id.
     The prosecutor’s comments must be
    analyzed in light of the arguments raised by the defense, and the relationship of the comments to
    the evidence admitted at trial. People v Dobek, 
    274 Mich App 58
    , 64; 732 NW2d 546 (2007).
    The record does not support defendant’s claim of prosecutorial misconduct. Defense
    counsel’s recross-examination of Zinda revealed that he attacked her credibility and motive for
    testifying, claiming that she was biased against defendant because she was pregnant with his
    child, but he was married to someone else. The prosecutor’s question, “Are you lying here
    because you’re jealous that you lost such a winner?” was asked in response to defense counsel’s
    attacks and was an effort to rehabilitate Zinda. The prosecutor was not required to phrase her
    question using the blandest possible terms. Meissner, 294 Mich App at 456; Dobek, 274 Mich
    App at 66.
    In closing argument, the prosecutor gave a summary of the events of the evening as
    relayed by Shenil to her sister. When the prosecutor related the departure from the strip club, she
    digressed to request that the jurors not focus on the conduct of the victims in visiting such an
    establishment and in associating with an individual like defendant. The argument was not
    improper because it requested the jury to focus on the evidence and not essentially blame the
    victims for their situation by visiting a strip club. Moreover, the prosecutor’s argument was
    consistent with the trial court’s instructions that the jurors must set aside any bias or prejudice.
    Furthermore, to the extent that the prosecutor’s comment regarding defendant was improper, the
    harm, if any, caused by the error could have been cured by a timely request for a curative
    instruction. This unpreserved claim of error does not entitle defendant to appellate relief. See
    Unger, 278 Mich App at 235.
    VII. FLIGHT INSTRUCTION
    Finally, defendant argues that the trial court erred by giving a flight instruction that was
    not supported by the evidence. The trial court instructed the jury as follows:
    Now there’s also been evidence introduced here that the defendant moved
    out of his residence after the victims were murdered. This evidence does not
    prove guilt. A person may move for innocent reasons such as—or for reasons
    totally unrelated to the case or from panic, mistake, or fear. However, a person
    may do so also because of a consciousness of guilt.
    So you must decide whether the evidence is true, and if true, whether it
    shows the defendant had a guilty state of mind.
    -9-
    Claims of instructional error are reviewed de novo. Kowalski, 489 Mich at 501. However, the
    trial court’s determination that a requested instruction is applicable in light of the facts of the
    case is reviewed for an abuse of discretion. People v Armstrong, 
    305 Mich App 230
    , 239; 851
    NW2d 856 (2014). “An abuse of discretion occurs when the trial court chooses an outcome
    falling outside the range of principled outcomes.” People v Buie, 
    491 Mich 294
    , 320; 817 NW2d
    33 (2012).
    Evidence of flight is admissible and it is probative because it may indicate consciousness
    of guilt. People v Coleman, 
    210 Mich App 1
    , 4; 532 NW2d 885 (1995). Flight includes actions
    such as “fleeing the scene of the crime, leaving the jurisdiction, running from the police, resisting
    arrest, and attempting to escape custody.” 
    Id.
     Because evidence of flight may have an intention
    or purpose consistent with innocence as well as guilt, the issue presents a question for resolution
    by the jury. Unger, 278 Mich App at 226. A prosecutor is not required to prove that a defendant
    left the jurisdiction motivated by a fear of apprehension. People v Smelley, 
    485 Mich 1023
    ; 776
    NW2d 310 (2010).
    Here, defendant’s neighbor testified that defendant resided in the apartment next door to
    her and that defendant’s apartment was furnished. One evening in June 2011, she heard loud
    noises, including a mixture of male and female voices as well as the sound of a television. After
    that evening, she never saw defendant return to the apartment. A short time later, defendant’s
    cousin inquired whether the neighbor and her boyfriend knew where defendant was. When the
    police executed a search warrant at defendant’s apartment, it was not furnished and had a strong
    odor of bleach. Further, although defendant was aware of Zinda’s pregnancy and represented
    that he would be in contact with her, he had no contact with her after the victims’ bodies were
    discovered. Defendant’s disappearance from his apartment, the purging of the furnishings in the
    apartment, and his failure to keep in touch with both Zinda and his own cousin support the flight
    instruction. Thus, we find that the trial court did not abuse its discretion when it gave the
    instruction. See Armstrong, 305 Mich App at 239. Further, we note that the trial court advised
    the jury that there may be innocent explanations for defendant’s move from the apartment and
    appropriately left the resolution of the issue for the jury. See Unger, 278 Mich App at 226.
    Affirmed.
    /s/ Cynthia Diane Stephens
    /s/ Michael J. Talbot
    /s/ Jane M. Beckering
    -10-