People of Michigan v. Jerome Romey Sueing ( 2017 )


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  •                           STATE OF MICHIGAN
    COURT OF APPEALS
    PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
    March 16, 2017
    Plaintiff-Appellee,
    v                                                                  No. 329961
    Kent Circuit Court
    JEROME ROMEY SUEING,                                               LC Nos. 15-000819-FH;
    15-000820-FH
    Defendant-Appellant.
    Before: STEPHENS, P.J., and SHAPIRO and GADOLA, JJ.
    PER CURIAM.
    In lower court no. 15-000819-FH, defendant was charged with aggravated indecent
    exposure, MCL 750.335a(2)(b), and indecent exposure by a sexually delinquent person, MCL
    750.335a(2)(c) in connection with an incident in which defendant exposed his penis and began
    masturbating while sitting at a table near a woman at the Grand Rapids Downtown Market on
    January 9, 2015. In lower court no. 15-000820-FH, defendant was charged with aggravated
    indecent exposure and indecent exposure by a sexually delinquent person in connection with an
    incident in which defendant exposed and then began “stroking” his penis while sitting next to a
    woman in a lobby at Kendall College of Art and Design in Grand Rapids on January 12, 2015.
    The trial court consolidated the two cases for a single trial. The judgments of sentence reflect
    that, in each case, defendant was convicted by a jury of aggravated indecent exposure and
    indecent exposure by a sexually delinquent person, MCL 750.335a(2)(b) and (c). The trial court
    sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to concurrent sentences
    of 24 months to 15 years’ imprisonment for the aggravated indecent exposure convictions and 20
    to 40 years’ imprisonment for the indecent exposure by a sexually delinquent person convictions.
    Defendant appeals as of right. We vacate defendant’s convictions and sentences for aggravated
    indecent exposure, affirm his convictions for indecent exposure by a sexually delinquent person,
    but vacate his sentences associated with these two convictions and remand so the trial court can
    resentence defendant consistent with MCL 750.335a(2)(c) to one day to life in prison.
    I. JOINDER
    On appeal, defendant first argues that the trial court erred by joining the two cases for
    trial. Questions of joinder present mixed questions of fact and law. People v Gaines, 
    306 Mich App 289
    , 304; 856 NW2d 222 (2014). “To determine whether joinder is permissible, a trial
    court must first find the relevant facts and then must decide whether those facts constitute
    -1-
    ‘related’ offenses for which joinder is appropriate.” 
    Id.
     (quotation marks and citation omitted).
    We review a trial court’s factual findings for clear error and review questions of law de novo. 
    Id.
    The ultimate decision of whether to permissively join related charges, however, lies firmly
    within the discretion of the trial court. 
    Id.
     A trial court abuses its discretion when its decision
    falls outside the range of reasonable and principled outcomes. People v Duenaz, 
    306 Mich App 85
    , 90; 854 NW2d 531 (2014).
    Two or more informations against a single defendant may be consolidated for a single
    trial. MCR 6.120(A). MCR 6.120(B) provides in pertinent part the following:
    On its own initiative, the motion of a party, or the stipulation of all parties,
    except as provided in subrule (C), the court may join offenses charged in two or
    more informations or indictments against a single defendant . . . when appropriate
    to promote fairness to the parties and a fair determination of the defendant’s guilt
    or innocence of each offense.
    (1) Joinder is appropriate if the offenses are related. For purposes of this
    rule, offenses are related if they are based on
    (a) the same conduct or transaction, or
    (b) a series of connected acts, or
    (c) a series of acts constituting parts of a single scheme or plan.
    (2) Other relevant factors include the timeliness of the motion, the drain
    on the parties’ resources, the potential for confusion or prejudice stemming from
    either the number of charges or the complexity or nature of the evidence, the
    potential for harassment, the convenience of witnesses, and the parties’ readiness
    for trial.
    On a defendant’s motion, a trial court must sever offenses that are unrelated for separate trials.
    MCR 6.120(C).
    Defendant argues that offenses are not “related” simply because they are of the same or
    similar character, People v Williams, 
    483 Mich 226
    , 235, 234 n 6; 769 NW2d 605 (2009), and
    his two offenses were not “related” under MCR 6.120(B)(1). We disagree. For each offense,
    defendant went to a gathering area in a public place. He then sat down near a young woman,
    pulled his penis out of his pants, and rubbed it. While the offenses were of the same character,
    they were also acts constituting parts of a single scheme or plan. See MCR 6.120(B)(1)(c). The
    offenses were acts in defendant’s scheme of using unsuspecting young women, who were in a
    gathering area of a public place, to obtain sexual gratification. Accordingly, the charged
    offenses were “related” under MCR 6.120(B)(1).
    Further, the trial court did not abuse its discretion by ultimately deciding to consolidate
    the two cases for trial. The facts of the two offenses were not complex and presented minimal
    potential for confusion. Also, evidence of each offense would have been admissible under MRE
    404(b) in a trial on the other offense to prove defendant’s identity and that he had a common
    -2-
    scheme, plan, or system of doing the acts. See People v Sabin (After Remand), 
    463 Mich 43
    , 63;
    614 NW2d 888 (2000); People v Ho, 
    231 Mich App 178
    , 186; 585 NW2d 357 (1988).
    Consolidating the cases reduced the drain on resources and offered convenience for the
    witnesses. Under these facts, the trial court’s decision to consolidate the two cases for trial did
    not fall outside the range of reasonable and principled outcomes.
    Defendant also argues that the trial court erred by denying his request for a separate jury
    on the charges of indecent exposure by a sexually delinquent person. We disagree. In People v
    Breidenbach, 
    489 Mich 1
    , 3-4, 8; 798 NW2d 738 (2011), the Michigan Supreme Court reversed
    its decision in People v Helzer, 
    404 Mich 410
    ; 273 NW2d 44 (1978), and held that, under MCL
    767.61a, a defendant is not entitled to have separate juries decide the issue of sexual delinquency
    apart from a primary offense. According to the Supreme Court, MCR 6.120(B) provides the
    proper framework for courts to determine whether a separate jury should be empaneled to decide
    a sexual delinquency charge. Breidenbach, 489 Mich at 14. The Court explained as follows:
    [I]f a fair determination of a defendant’s guilt or innocence of each offense would
    require separate juries, trial courts may order separate juries . . . . In accordance
    with the rationale supporting the Helzer Court’s original holding, the potential for
    confusion or prejudice in particular may provide a sufficient basis for a trial
    court’s exercise of its discretion to order separate juries when a charge of sexual
    delinquency is involved. When that potential does not exist, however, separate
    juries need not be empaneled in order to consider separately the charges against a
    defendant. [Id. at 14-15 (quotation marks omitted).]
    As already discussed, the two cases were properly joined for trial. Further, as will be
    discussed in Section II of this opinion, evidence of defendant’s earlier acts of sexual impropriety,
    occurring at a Biggby Coffee in January 2014 and a Common Ground coffee shop in October
    2004, was admissible under MRE 404(b) at trial on the charged offenses. Defendant does not
    argue that a jury deciding his sexual delinquency charges could not have heard this evidence. If
    separate juries had been used, there would have been a complete overlap in evidence. Because
    the evidence overlapped, the jury did not have to limit its use of any of the evidence presented at
    trial to separately determine if the charged offenses occurred or if defendant was a sexually
    delinquent person. Accordingly, there was no potential for confusion or prejudice, and the trial
    court did not abuse its discretion by denying defendant’s request for a separate jury on the sexual
    delinquency charges.
    II. OTHER-ACTS EVIDENCE
    Defendant next argues that the trial court improperly admitted evidence of his previous
    acts of sexual impropriety that occurred at a Biggby Coffee in January 2014, and at a Common
    Ground coffee shop in October 2004. We review a trial court’s evidentiary decisions for an
    abuse of discretion. People v Unger, 
    278 Mich App 210
    , 216; 749 NW2d 272 (2008).
    MRE 404(b)(1) provides that “[e]vidence of other crimes, wrongs, or acts is not
    admissible to prove the character of a person in order to show action in conformity therewith.”
    However, such evidence may be admissible for another purpose, such as to prove “motive,
    opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or
    -3-
    absence of mistake or accident when the same is material . . . .” 
    Id.
     Three requirements must be
    met for other-acts evidence to be admissible. People v Knox, 
    469 Mich 502
    , 509; 674 NW2d
    366 (2004). First, the evidence must be offered for a proper purpose, which is any purpose other
    than to show the defendant’s action in conformity therewith. 
    Id.
     Second, the evidence must be
    relevant under MRE 402 to an issue that is of consequence at trial. 
    Id.
     Third, the probative
    value of the evidence must not be substantially outweighed by the danger of unfair prejudice.
    
    Id.,
     citing MRE 403. Unfair prejudice exists if there is a tendency that evidence with little
    probative value will be given undue weight by a jury. People v McGhee, 
    268 Mich App 600
    ,
    614; 709 NW2d 595 (2005).
    We reject defendant’s argument that evidence of the Biggby Coffee incident was
    inadmissible because it did not include any act of aggravated indecent exposure. Even if
    defendant’s conduct at the Biggby Coffee did not constitute a crime, this fact does not mean that
    evidence of the incident was inadmissible as other-acts evidence. MRE 404(b)(1) specifically
    provides that “[e]vidence of other crimes, wrongs, or acts . . . may . . . be admissible for”
    purposes other than to prove the defendant’s character. (Emphasis added.) We also reject
    defendant’s argument that evidence of the Common Ground incident was inadmissible due to its
    age. “The remoteness of an act only affects the weight of the evidence rather than its
    admissibility.” McGhee, 268 Mich App at 611-612. Accordingly, the fact that the Common
    Ground incident occurred 11 years before the charged offenses did not preclude its admission.
    All elements of a charged offense are “at issue” when a defendant pleads not guilty.
    People v Crawford, 
    458 Mich 376
    , 389; 582 NW2d 785 (1998). The prosecution must prove
    each element beyond a reasonable doubt, regardless of whether the defendant specifically
    disputes or offers to stipulate to any of the elements. 
    Id.
     Identity is an element of every offense.
    People v Yost, 
    278 Mich App 341
    , 356; 749 NW2d 753 (2008).
    In this case, the other-acts evidence was admissible to prove defendant’s common
    scheme, plan, or system of doing an act pursuant to MRE 404(b)(1). Other-acts evidence is
    relevant to show that the charged offense occurred when the other act and the charged offense
    are sufficiently similar to support an inference that they are manifestations of a common scheme,
    plan, or system. Sabin (After Remand), 
    463 Mich at 63
    . Regarding the Biggby Coffee incident,
    Hanali Gilbert testified that defendant sat down at a table near her and her friend. Gilbert then
    saw defendant “rubbing” himself near his penis; she used the word “masturbating” to describe
    his conduct. Gilbert testified that she did not see defendant’s penis, but his hand was in his
    pants. Regarding the Common Ground incident, Justine Bandstra testified that defendant sat at a
    table near her and her friend. When Bandstra looked over at defendant, she saw that defendant
    had removed his penis from his pants and he was “stroking” it with an “up and down” motion.
    The Biggby Coffee incident and the Common Ground incident were sufficiently similar to the
    charged offenses to support an inference that they and the charged offenses were manifestations
    of a common plan, scheme, or system in doing an act. In the two incidents, as in the charged
    offenses, while in a public area where people could gather, defendant sat down near a young
    woman and masturbated. Additionally, because evidence of the incidents was highly probative
    to the issue of whether the charged offenses occurred, the risk of unfair prejudice did not
    substantially outweigh the probative value of the evidence.
    -4-
    Moreover, evidence of the Biggby Coffee incident and the Common Ground incident was
    admissible to prove defendant’s identity as the perpetrator of the charged offenses. Other-acts
    evidence is relevant to prove identity if (1) there is substantial evidence that the defendant
    committed the other act, (2) there is some special quality of the act that tends to prove the
    defendant’s identity, (3) the evidence is material to the defendant’s guilt, and (4) the probative
    value of the other-acts evidence is not substantially outweighed by the danger of unfair
    prejudice. Ho, 231 Mich App at 186.
    Regarding the Biggby Coffee incident, there was substantial evidence that defendant was
    the man who Gilbert saw rubbing himself. At trial, Gilbert identified the man as defendant.
    Further, there was some special quality of the act that tended to prove defendant’s identity.
    Although there was no testimony that defendant exposed his penis in the Biggby Coffee incident,
    Gilbert’s testimony established that, just as in the charged offenses, defendant sat at a table near
    a young woman in a public place and rubbed himself for sexual gratification. Regarding the
    Common Ground incident, there was substantial evidence that defendant was the man who
    exposed himself. At trial, Bandstra identified the man who exposed himself as defendant. She
    also testified that, during a 2005 trial, she identified defendant as the man who exposed himself.
    Further, there was some special quality of the act that tended to prove defendant’s identity. In
    the Common Ground incident, like the charged offenses, defendant sat at a table near a young
    woman in a public place, took his penis out of his pants, and rubbed it. The charged offenses
    were so nearly identical in method as the Common Ground incident and the Biggby Coffee
    incident as to demonstrate that defendant was responsible for the offenses. See People v
    Golochowicz, 
    413 Mich 298
    , 311; 319 NW2d 518 (1982). Because identity is an element of
    every offense, Yost, 278 Mich App at 356, evidence of the Biggby Coffee incident and the
    Common Ground incident was material to defendant’s guilt. Finally, because the other-acts
    evidence was highly probative to the issue of identity, the risk of unfair prejudice did not
    substantially outweigh the probative value of the evidence.
    III. DEFENDANT’S STANDARD 4 BRIEF
    In his Standard 4 brief, defendant first argues that he was denied the effective assistance
    of counsel. To establish a claim of ineffective assistance of counsel, a defendant must show that
    counsel’s performance fell below objective standards of reasonableness and that, but for
    counsel’s deficient performance, there is a reasonable probability that the result of the
    proceedings would have been different. People v Uphaus (On Remand), 
    278 Mich App 174
    ,
    185; 748 NW2d 899 (2008). Because defendant did not move the trial court for a new trial or an
    evidentiary hearing, our review of defendant’s ineffective assistance claim is limited to mistakes
    apparent from the record. People v Heft, 
    299 Mich App 69
    , 80; 829 NW2d 266 (2012).
    Defendant claims that defense counsel was ineffective because she failed to bring certain
    information to the jury’s attention during closing arguments. However, much of the information
    that defendant claims defense counsel failed to mention was, in fact, noted by defense counsel in
    her closing argument. Regardless, to prove that counsel’s performance fell below an objective
    standard of reasonableness, a defendant must overcome a strong presumption that counsel’s
    performance constituted sound trial strategy. People v Russell, 
    297 Mich App 707
    , 715-716; 825
    NW2d 623 (2012). Counsel’s decision concerning what evidence to highlight during closing
    argument is a matter of trial strategy. People v Horn, 
    279 Mich App 31
    , 39; 755 NW2d 212
    -5-
    (2008). We will not second-guess counsel on matters of trial strategy. 
    Id.
     Therefore, defendant
    fails to overcome the presumption that defense counsel engaged in sound trial strategy in giving
    her closing argument.
    Defendant also claims that defense counsel was ineffective for failing to subpoena his
    medical records. A defendant has the burden to establish the factual predicate for a claim of
    ineffective assistance of counsel. People v Hoag, 
    460 Mich 1
    , 6; 594 NW2d 57 (1999).
    Defendant claims that his medical records would have shown that he suffered from an inguinal
    hernia at the time of the charged offenses, but nothing in the record substantiated this claim.
    Accordingly, defendant has failed to establish the factual predicate for his claim.
    Similarly, defendant claims that defense counsel was ineffective for failing to interview
    his medical providers and family members and for failing to call them as witnesses at trial.
    Counsel’s failure to call witnesses only constitutes ineffective assistance of counsel if it deprived
    the defendant of a substantial defense. People v Dixon, 
    263 Mich App 393
    , 398; 688 NW2d 308
    (2004). Nothing in the record indicates how any of defendant’s medical providers or family
    members would have testified had they been called as witnesses. Accordingly, defendant cannot
    establish that, absent counsel’s alleged failure to interview his medical providers and family
    members and her failure to call them as witnesses, there is a reasonable probability that the result
    of the trial would have been different. See Uphaus (On Remand), 278 Mich App at 185.1
    Next, defendant argues that, during opening statements, the prosecutor improperly
    referenced the testimony of a professor and a police officer regarding a 2003 incident at Kendall
    College, in which defendant allegedly masturbated in front of several female students in a
    classroom. Specifically, defendant asserts that the prosecutor’s comment violated his Sixth
    Amendment right to confrontation because neither the professor nor the police officer testified at
    trial. We review this unpreserved claim for plain error affecting defendant’s substantial rights.
    People v Carines, 
    460 Mich 750
    , 763-764; 597 NW2d 130 (1999).
    There is no merit to defendant’s argument. The United States Supreme Court’s decision
    in Frazier v Cupp, 
    394 US 731
    , 735; 
    89 S Ct 1420
    ; 
    22 L Ed 2d 684
     (1969), instructs that under
    the circumstances of the present case, when the only mention of testimony from the professor
    and the police officer occurred during the prosecutor’s opening statement, when the trial court
    instructed the jury that it must decide the case based on the evidence and that opening statements
    were not evidence, and when the 2003 incident at Kendall College was not a vitally important
    part of the prosecutor’s case, the prosecutor’s statement did not violate defendant’s confrontation
    rights. Defendant also claims that defense counsel was ineffective for failing to move for a
    mistrial based on the prosecutor’s opening statement. “A trial court should grant a mistrial only
    for an irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a
    fair trial.” People v Schaw, 
    288 Mich App 231
    , 236; 791 NW2d 743 (2010) (quotation marks
    and citation omitted). A mistrial is only appropriate when the prejudicial effect of the error
    1
    To the extent that any of defendant’s claims of ineffective assistance of counsel are not
    addressed by us while analyzing the other issues raised by defendant, we consider them
    abandoned. See People v Kelly, 
    231 Mich App 627
    , 640-641; 588 NW2d 480 (1998).
    -6-
    cannot be removed in any other way. Horn, 279 Mich App at 36. The trial court instructed the
    jury that it had to decide the case based on the evidence, and that opening statements were not
    evidence. These instructions were sufficient to cure any prejudice that resulted from the
    prosecutor’s mention of the 2003 incident at Kendall College. See Frazier, 
    394 US at 735
    ;
    People v Abraham, 
    256 Mich App 265
    , 279; 662 NW2d 836 (2003). Because the prejudicial
    effect of the error was removed by the trial court’s instructions, any motion for a mistrial would
    have been meritless. Defense counsel was not ineffective for failing to make a futile motion.
    People v Fike, 
    228 Mich App 178
    , 182; 577 NW2d 903 (1998).
    Defendant further claims that defense counsel was ineffective for failing to request a
    cautionary instruction or a missing witness instruction. Because any instruction specific to the
    2003 incident at Kendall College would have reminded the jury of the incident, defense counsel
    may have decided it was best to forego any instruction specific to the incident, especially when
    the jury was instructed that opening statements were not evidence. Defendant has failed to
    overcome the strong presumption that defense counsel engaged in sound trial strategy.
    Defendant also argues that the prosecutor’s statement constituted intentional misconduct,
    requiring his convictions to be reversed, because the prosecutor knew or should have known that
    no evidence of the Kendall College incident was admissible when the prosecutor had not located
    any of the female students in the classroom. Because defendant raised no claim of prosecutorial
    misconduct at trial, we review defendant’s claim for plain error affecting substantial rights,
    which requires a showing that the misconduct prejudiced defendant, i.e., affected the outcome of
    the proceedings. Carines, 460 Mich at 763. Regardless whether the prosecutor knew or should
    have known that evidence of the Kendall College incident was inadmissible, the prosecutor’s
    mention of the incident in her opening statement did not affect the outcome of the proceedings.
    There was no other mention of the incident, and the trial court instructed the jury that it must
    decide the case based on the evidence and that opening statements were not evidence.
    Instructions are presumed to cure most errors, and a jury is presumed to follow its instructions.
    Abraham, 256 Mich App at 279.
    Defendant next argues that the trial court violated his right to counsel of his own
    choosing when, after he retained counsel, the trial court refused to grant an adjournment so that
    retained counsel could familiarize himself with the case, which caused retained counsel to
    withdraw his representation. As the appellant, defendant bore the burden of furnishing this Court
    with a record to verify the factual basis of the claim. People v Elston, 
    462 Mich 751
    , 762; 614
    NW2d 595 (2000). Because defendant’s argument is based on proceedings that occurred on
    August 31, 2015, of which there is no record, defendant has failed to verify the factual basis for
    his argument. Accordingly, we decline to reverse defendant’s convictions for a violation of his
    right to counsel of his own choosing.
    Defendant also argues that, because conflicts of interest existed between him and the
    public defender’s office and between him and defense counsel, the trial court erred by denying
    his request to appoint substitute counsel. We review a trial court’s decision regarding
    substitution of counsel for an abuse of discretion. People v Buie (On Remand), 
    298 Mich App 50
    , 67; 825 NW2d 361 (2012).
    -7-
    The constitutional right to counsel requires that all criminal defendants be afforded
    counsel during trial. People v Jackson, 
    483 Mich 271
    , 278; 769 NW2d 630 (2009). Indigent
    defendants who request an attorney must be provided counsel, but they are not entitled to counsel
    of their choosing. People v Russell, 
    471 Mich 182
    , 192 n 25; 684 NW2d 745 (2004).
    Appointment of substitute counsel is warranted only upon a showing of good cause and where
    the substitution will not unreasonably disrupt the judicial process. People v Strickland, 
    293 Mich App 393
    , 397; 810 NW2d 660 (2011). Good cause exists when a legitimate difference of
    opinion exists between a defendant and appointed counsel over a fundamental trial tactic. 
    Id.
    On the first day of trial, defendant informed the trial court about two past conflicts that he
    had with lawyers from the public defender’s office, and stated that he believed that, based on
    those past conflicts, defense counsel, who was employed by the public defender’s office, should
    withdraw. However, defendant never offered the trial court any specific link between those past
    conflicts and defense counsel’s representation of him. We view defendant’s claim that defense
    counsel should have withdrawn because of past conflicts that he had with other attorneys at the
    public defender’s office as nothing more than a claim that he lacked confidence in appointed
    counsel. Such an allegation is not good cause to appoint substitute counsel. See People v
    Traylor, 
    245 Mich App 460
    , 463; 628 NW2d 120 (2001).
    Also, on the first day of trial, defendant informed the trial court that defense counsel had
    failed to file motions for him. He mentioned two specific motions: one to challenge the jury pool
    in Kent County and one to get him moved from the jail so that he could get medical care.
    Defendant makes no argument that either of these motions would have had any merit. Defense
    counsel’s failure to file meritless motions does not establish good cause to appoint substitute
    counsel. See 
    id.
     Moreover, defendant did not complain about defense counsel until right before
    trial was scheduled to start. At that point, substitution of counsel would have unreasonably
    delayed the judicial process. See Strickland, 293 Mich App at 399. Because defendant did not
    show good cause for appointment of substitute counsel, and because substitution of counsel
    would have delayed the judicial process, the trial court did not abuse its discretion by denying
    defendant’s request to appoint substitute counsel.
    Next, defendant argues that he was arrested without probable cause and that the pictures
    taken of him at the time of his arrest should have been suppressed. We review these unpreserved
    claims for plain error affecting defendant’s substantial rights. Carines, 460 Mich at 763-764.
    The Fourth Amendment, US Const, Am IV, as well as the analogous provision in the
    Michigan Constitution, Const 1963, art 1, § 11, protects against unreasonable searches and
    seizures. People v Champion, 
    452 Mich 92
    , 97; 549 NW2d 849 (1996). Searches and seizures
    conducted without a warrant are unreasonable per se, subject to several specifically and well-
    delineated exceptions. 
    Id. at 98
    . A police officer may arrest a person without a warrant if the
    officer has reasonable cause to believe that a felony was committed and that the person
    committed the felony. People v Cohen, 
    294 Mich App 70
    , 74; 816 NW2d 474 (2011); see also
    MCL 764.15(1)(d). “In order to lawfully arrest a person without a warrant, a police officer must
    possess information demonstrating probable cause to believe that an offense has occurred and
    that the defendant committed it.” Cohen, 294 Mich App at 74 (quotation marks and citation
    omitted). “Probable cause to arrest exists where the facts and circumstances within an officer’s
    knowledge and of which he has reasonably trustworthy information are sufficient in themselves
    -8-
    to warrant a man of reasonable caution in the belief that an offense has been or is being
    committed.” Champion, 
    452 Mich at 115
    . The probable cause standard is judged from the
    totality of the circumstances before the arresting officers. Cohen, 294 Mich App at 75.
    Defendant was arrested on January 15, 2015, after Sergeant Neil Gomez, who was
    driving in his personal car, saw a man in front of a restaurant who looked very similar to a
    suspect in a picture that Detective Josh Cornell had e-mailed to members of the Grand Rapids
    Police Department. Because Sergeant Gomez was in his personal vehicle and was not in
    uniform, he called dispatch and requested that uniformed officers respond. Shortly thereafter,
    several police officers arrived and made contact with the man. Sergeant Gomez called Detective
    Cornell to inform him about the situation while another officer took the man into custody. The
    man turned out to be defendant.
    Detective Cornell, who was assigned to investigate the indecent exposures at the
    Downtown Market and Kendall College, testified that he sent an e-mail with three still pictures
    attached, two from the Downtown Market and one from Kendall College, to members of the
    Grand Rapids Police Department, including Sergeant Gomez and Officer John Wetzel.
    Detective Cornell believed that he attached the police reports to his e-mail. Sergeant Gomez
    testified that Detective Cornell’s e-mail contained information in addition to the pictures,
    although he could not remember that information. But, according to Sergeant Gomez, it was
    “pretty functional” for an e-mail to explain “what’s going on and what the picture’s for.” Officer
    Wetzel testified that, when he made contact with Sergeant Gomez, Sergeant Gomez pointed to a
    person and said the person was wanted for indecent exposure. Based on this testimony, an
    inference can be made that Detective Cornell’s e-mail indicated that defendant was wanted for
    indecent exposure.
    It is not clear or obvious that defendant was arrested without probable cause. Carines,
    460 Mich at 763. Detective Cornell sent an e-mail, indicating that the person displayed in the
    attached pictures was wanted for indecent exposure. Sergeant Gomez testified that defendant
    was “almost to the T” the person in the picture. Officer Wetzel testified that defendant was
    wearing the same set of distinct clothes as the person in the picture. The facts and circumstances
    within the knowledge of these officers and of which the officers had reasonably trustworthy
    information was sufficient to warrant a person of reasonable caution to believe that an offense
    was committed and that defendant committed it. Champion, 
    452 Mich at 115
    . Defendant’s
    argument that he was arrested without probable cause is without merit.
    Defendant cites no legal authority in support of his claim that the pictures taken of him at
    the time of his arrest should have been suppressed. Therefore, the argument is abandoned. See
    People v Kelly, 
    231 Mich App 627
    , 640-641; 588 NW2d 480 (1998).
    Additionally, defendant’s argument that defense counsel was ineffective for failing to
    challenge the validity of his arrest and for failing to move to suppress the pictures taken of him at
    the time of his arrest is without merit. Because defendant has not established that his arrest or
    the pictures taken of him at the time of his arrest violated his Fourth Amendment rights, any
    motion by defense counsel challenging the arrest or pictures would have been meritless. Defense
    counsel was not ineffective for failing to make a futile motion. Fike, 228 Mich App at 182.
    -9-
    Next, defendant argues that he was coerced by defense counsel into giving up his right to
    testify. A defendant has a constitutional right to testify in his own defense. People v Bonilla-
    Machado, 
    489 Mich 412
    , 419; 803 NW2d 217 (2011). Although counsel must advise a
    defendant of this right, the ultimate decision whether to testify at trial remains with the
    defendant. 
    Id.
     If a defendant expresses a desire to testify at trial, the trial court must grant the
    request, even if counsel has advised the defendant against testifying. People v Simmons, 
    140 Mich App 681
    , 685; 364 NW2d 783 (1985). But if a defendant decides not to testify or
    acquiesces in counsel’s decision that he not testify, then the right to testify is deemed waived. 
    Id.
    The record indicates that defense counsel advised defendant not to testify. But the record
    also reflects that defendant was told by the trial court, and he understood, that he had the right to
    testify and that the trial court would let him testify if he wanted. Then, when the trial court asked
    defendant if he wanted to testify, defendant said that he had decided against it. The record does
    not reveal any coercive actions by defense counsel. See Bonilla-Machado, 489 Mich at 420-421.
    Defendant’s argument in this regard is without merit.
    Defendant argues that he was denied his Sixth Amendment right to be tried by an
    impartial jury drawn from a fair cross section of the community. We review this unpreserved
    claim of constitutional error for plain error affecting defendant’s substantial rights. Carines, 
    460 Mich at 763-764
    . To establish a prima facie violation of the fair-cross-section requirement, a
    defendant must establish the following:
    (1) that the group alleged to be excluded is a “distinctive” group in the
    community; (2) that the representation of this group in venires from which juries
    are selected is not fair and reasonable in relation to the number of such persons in
    the community; and (3) that this underrepresentation is due to systematic
    exclusion of the group in the jury-selection process. [Duren v Missouri, 
    439 US 357
    , 364; 
    99 S Ct 664
    ; 
    58 L Ed 2d 579
     (1979).]
    Because defendant makes no argument that applies the three prongs of the Duren test to the
    present case, and because the lower court record contains no facts that would enable us to review
    the merits of defendant’s claim, we reject defendant’s argument.
    Finally, defendant argues that his convictions for aggravated indecent exposure, MCL
    750.335a(2)(b), and indecent exposure by a sexually delinquent person, MCL 750.335a(2)(c),
    violate double jeopardy protections. On this point, we agree. The United States Constitution,
    US Const, Am V, and the Michigan Constitution, Const 1963, art 1, § 15, protect a person from
    being twice placed in jeopardy for the same offense. People v Nutt, 
    469 Mich 565
    , 574; 677
    NW2d 1 (2004). The prohibition against double jeopardy provides three 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.” 
    Id.
    Under the statutory scheme of MCL 750.335a, a person is guilty of indecent exposure if
    the person “ ‘knowingly make[s] any open or indecent exposure of his or her person or of the
    person of another,’ ” and is guilty of aggravated indecent exposure if the person additionally “
    ‘fond[les] his or her genitals, pubic area, [or] buttocks.’ ” People v Franklin, 
    298 Mich App 539
    ,
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    546; 828 NW2d 61 (2012), quoting MCL 750.335a(1) and (2)(b) (first and third alterations in
    Franklin). Because aggravated indecent exposure encompasses all of the elements of indecent
    exposure, a conviction for both offenses arising from the same conduct violates double-jeopardy
    principles. Franklin, 298 Mich App at 547, citing People v McKinley, 
    168 Mich App 496
    , 504;
    425 NW2d 460 (1988) (“[W]here one statute incorporates most of the elements of a base statute
    and adds an aggravating conduct element with an increased penalty compared to the base statute,
    it is evidence that the Legislature did not intend punishment under both statutes.”).
    In this case, defendant was convicted of both aggravated indecent exposure and indecent
    exposure by a sexually delinquent person. The mere addition of the sexual delinquency
    classification to the indecent exposure conviction does not change the double jeopardy analysis,
    as the Court in Franklin, 298 Mich App at 547, explained:
    To the extent that the prosecution argues that defendant’s convictions do not
    violate double jeopardy because the indecent exposure conviction required a
    showing of sexual delinquency, we note that sexual delinquency is not an actual
    element of that offense. Rather, a finding of sexual delinquency merely allows
    for an enhancement of the sentence for the indecent exposure offense. [Franklin,
    298 Mich App at 547.]
    Therefore, defendant’s convictions for aggravated indecent exposure and indecent exposure by a
    sexually delinquent person arising from the same conduct violated the constitutional prohibition
    against double jeopardy. The proper remedy in such a case is to affirm the higher conviction and
    vacate the lower conviction. People v Herron, 
    464 Mich 593
    , 609; 628 NW2d 528 (2001).
    Because aggravated indecent exposure is a lower class crime than indecent exposure by a
    sexually delinquent person, MCL 777.16q, we vacate defendant’s aggravated indecent exposure
    convictions and their associated sentences, but affirm his convictions for indecent exposure by a
    sexually delinquent person.
    Below, the trial court sentenced defendant to 20 to 40 years’ imprisonment for his
    convictions for indecent exposure by a sexually delinquent person. However, this Court recently
    held that “trial courts must sentence a defendant convicted of indecent exposure as a sexually
    delinquent person consistent with the requirements of MCL 750.335a(2)(c).” People v
    Campbell, ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 324708); slip op at 11.
    Therefore, we vacate defendant’s sentences associated with his convictions for indecent exposure
    by a sexually delinquent person, and remand so the trial court can sentence defendant to the
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    mandatory sentence set forth by MCL 750.335a(2)(c) of one day to life in prison.2
    Affirmed in part, vacated in part, and remanded for resentencing. We do not retain
    jurisdiction.
    /s/ Cynthia Diane Stephens
    /s/ Douglas B. Shapiro
    /s/ Michael F. Gadola
    2
    Because the trial court must sentence defendant to the mandatory indeterminate term imposed
    by MCL 750.335a(2)(c), we need not address defendant’s remaining sentencing arguments.
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