People of Michigan v. Shelton Dean Antoine ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 12, 2021
Plaintiff-Appellee,
V No. 353013
Macomb Circuit Court
SHELTON DEAN ANTOINE, LC No. 2019-001381-FH
Defendant-Appellant.
Before: RIORDAN, P.J., and MARKEY and SWARTZLE, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of assault with intent to do great bodily
harm, MCL 750.84, and prisoner in possession of a weapon, MCL 800.283(4). The trial court
sentenced defendant as a third habitual offender, MCL 769.11, to serve concurrent prison terms of
6 to 10 years for each conviction. Defendant appeals by right, and we affirm.
I. FACTS
Defendant’s convictions were the result of assaulting another inmate, Tyler Richards, when
they were incarcerated together. Richards had returned from the hospital after treatment for
injuries from an assault. Richards obtained permission to shower and defendant, whom he had
encountered only once previously, left his room without permission and found Richards alone in
the shower room. Defendant attacked Richards in the shower by repeatedly stabbing him with a
self-fashioned knife (a “shank”), cutting his head and shoulder. Corrections officers, including
Gerald Dancy, quickly responded and subdued defendant with a taser. He was convicted as
charged.
II. MISSING-WITNESS INSTRUCTION
Defendant argues that trial court erred by failing to instruct the jury that it might infer that
certain witnesses, whom the prosecutor had endorsed but failed to produce, would have testified
unfavorably to the prosecution.
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“This Court reviews a trial court’s denial of a request for a ‘missing-witness instruction’
for an abuse of discretion.” People v Snider, 239 Mich App 393, 422; 608 NW2d 502 (2000). The
trial court does not abuse its discretion when it chooses an outcome within the range of reasonable
and principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
A defendant has the right to “a properly instructed jury.” People v Mills, 450 Mich 61, 80;
537 NW2d 909 (1995). “[T]he trial court is required to instruct the jury with the law applicable to
the case and fully and fairly present the case to the jury in an understandable manner.” Id. There
is no error where the instructions “fairly presented the issues to be tried and sufficiently protected
the defendant’s rights.” People v McFall, 224 Mich App 403, 412-413; 569 NW2d 828 (1997)
(quotation marks and citation omitted).
According to MCL 767.40a(1), the prosecutor “shall attach to the filed information a list
of all witnesses known to the prosecuting attorney who might be called at trial and all res gestae
witnesses known to the prosecuting attorney or investigating law enforcement officers.”
Additionally, MCL 767.40a(3) provides that “[n]ot less than 30 days before the trial, the
prosecuting attorney shall send to the defendant or his or her attorney a list of the witnesses the
prosecuting attorney intends to produce at trial.”
“Once a witness is endorsed under MCL 767.40a(3), the prosecution must use due
diligence to produce the witness.” People v Duenaz, 306 Mich App 85, 104; 854 NW2d 531
(2014), citing People v Eccles, 260 Mich App 379, 388; 677 NW2d 76 (2004). The prosecutor
may add or delete witnesses from this list “at any time,” provided that the defendant stipulates to
the amendment or “upon leave of the court and for good cause shown.” MCL 767.40a(4). See
also People v Everett, 318 Mich App 511, 518; 899 NW2d 94 (2017). If the prosecution fails to
produce a witness, and has not been properly excused by a trial court’s finding that the prosecutor
used due diligence to produce the witness, the court should provide a missing-witness instruction
to the jury. Eccles, 260 Mich App at 388-389; People v Snider, 239 Mich App 393, 422-423; 608
NW2d 502 (2000). The missing-witness instruction consists of the following:
“[State name of witness] is a missing witness whose appearance was the
responsibility of the prosecution. You may infer that this witness’s testimony
would have been unfavorable to the prosecution’s case.” [Everett, 318 Mich App
at 527, quoting M Crim JI 5.12.]
In this case, after defendant requested the missing-witness instruction because two
endorsed police officers were not called, the prosecutor asserted that he had presented all the
witnesses on the witness list, and defendant was apparently referencing witnesses from the police
report. The trial court agreed that the prosecutor was not obligated to present the witnesses in the
police report and thus denied the motion. However, the prosecutor had filed a “list of known
witnesses” that names five persons, the three who were presented at trial, and two who were not.
The document further stated, “This list should also be construed as the list of endorsed witnesses
that the people intend to call at trial, unless you receive a supplemental list prior to trial.”
The prosecutor did not comply with MCL 767.40a because there was no amendment to the
list of endorsed witnesses “upon leave of the court and for good cause shown or by stipulation of
the parties.” MCL 767.40a(4). And having merely relied on the prosecutor’s incorrect
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representation that he had presented all endorsed witnesses, the trial court failed to consider
whether the prosecutor acted with due diligence to produce all endorsed witnesses. “[T]he statute
is quite plain,” leaving “no in-between ‘alternative witness’ who may or may not be produced on
the whim of the prosecution.” Everett, 318 Mich App at 522. The prosecutor and the trial court
thus failed to operate within the statutory requirements. See Eccles, 260 Mich App at 388-389.
However, in order to obtain reversal, a defendant must demonstrate that the instructional
error “undermined reliability in the verdict.” People v Cornell, 466 Mich 335, 363-364; 646 NW2d
127 (2002). Reversal is appropriate when a defendant shows that “it is more probable than not
that the error was outcome determinative.” Everett, 318 Mich App at 528 (quotation marks and
citation omitted). In this case, defendant argues that, without the instruction, he could not argue
that the jury should infer that the missing witnesses would have testified that the weapon with
which he allegedly assaulted defendant was not found in the shower, which would have led the
jury to conclude that the location from which the knife was recovered had not been established.
However, the evidence demonstrated that the knife was located in the shower room after the attack.
Richards testified that he observed defendant discard the knife under a heater, which he pointed
out to officers. A responding officer heard something hit the floor as he attempted to stop
defendant from stabbing the victim. Richards identified the knife in a photograph of the heater,
and as an exhibit during the trial. Corrections Sergeant Matthew Nguyen testified that another
officer recovered the weapon, and that Nguyen placed it into an evidence bag and then in a locker
for the State Police to pick up. Further, the missing witnesses were identified as police officers,
who thus would not have been involved until after the knife was recovered.
For these reasons, we conclude that defendant has failed to show that the trial court’s failure
to provide the missing-witness instruction deprived the defense of any significant opportunity.
Because defendant has not demonstrated that the instructional error undermined the reliability of
the guilty verdict or that the error was outcome determinative, appellate relief is not warranted. A
criminal defendant is entitled to a fair trial, not necessarily a perfect one. People v Mosko, 441
Mich 496, 503; 495 NW2d 534 (1992).
III. AUTHENTICATION
Defendant argues that the trial court erred by authenticating the knife offered into evidence
as the one used in the alleged assault on the basis of its unique characteristics. This Court reviews
a trial court’s evidentiary decisions for an abuse of discretion. People v Briseno, 211 Mich App
11, 14; 535 NW2d 559 (1995).
MRE 901 requires that an item be authenticated before it is admitted into evidence. Under
MRE 901(a), “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.” To lay a foundation for the admission of evidence, a prosecutor must
provide evidence “identifying the items as what they are purported to be and displaying that the
items are connected with the accused or the crime.” People v Jennings, 118 Mich App 318, 322;
324 NW2d 625 (1982). “Factors to be considered in making this determination include the nature
of the article, the circumstances surrounding the preservation and custody of it, and the possibility
of intermeddlers tampering with it.” People v Muhammad, 326 Mich App 40, 59; 931 NW2d 20,
31 (2018) (quotation marks and citation omitted). “If, after considering such factors, the trial judge
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is satisfied that in reasonable probability the article has not been changed in important respects, he
may permit its introduction in evidence.” Id. (quotation marks and citation omitted).
A trial court may consider any evidence to determine whether the evidence offered for
admission is admissible. People v McDade, 301 Mich App 343, 352–353; 836 NW2d 266 (2013).
The authentication requirement can be met by the “distinctive characteristics” of an item, such as
“[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in
conjunction with circumstances.” MRE 901(b)(4).
Defendant asserts that a prison “shank” is commonly a piece of sharpened metal with a
cellophane handle, such as the object here at issue. Authentication requires testimony indicating
that “the object offered is the object which was involved in the incident, and further that the
condition of the object is substantially unchanged.” Jennings, 118 Mich App at 322 (emphasis in
original; citation omitted). For the trial court to determine that an item has been authenticated,
“[i]t need only meet the minimum requirements for admissibility,” and it is not required that the
proposed evidence “be free of weakness or doubt.” McDade, 301 Mich App at 352-353 (quotation
marks and citation omitted).
If the offered item possesses characteristics which are fairly unique and readily
identifiable, and if the substance of which the item is composed is relatively
impervious to change, the trial court is viewed as having broad discretion to admit
merely on the basis of testimony that the item is the one in question and is in a
substantially unchanged condition. [People v White, 208 Mich App 126, 130; 527
NW2d 34 (1994).]
In this case, Richards’s testimony that the shank was readily identifiable to him because of
the shape of the cellophane when it was in defendant’s hand referred to a distinctive characteristic
of the knife in question. Additionally, Richards’s identification of the knife in evidence as the one
that he saw during the assault, and that he saw defendant attempt to discard, supported
authentication. For these reasons, we hold that it was within the range of reasonable and principled
outcomes for the trial court to conclude that the knife was satisfactorily authenticated.
Defendant additionally argues that the chain of custody was not sufficiently established to
allow the knife into evidence. The chain of custody must be “sufficiently complete to render it
reasonably probable that the original item has neither been exchanged with another nor been
contaminated or tampered with.” White, 208 Mich App at 131 (quotation marks and citation
omitted). In this case, Richards saw defendant discard the knife under a heating register and
pointed it out to officers who photographed it. Nguyen testified that he received the knife from
another sergeant an hour and a half after the incident, and sealed the envelope for collection by the
State Police. But there was no testimony regarding possession of the knife between its discovery
under the heater until it was given to Nguyen, or from anyone who possessed it with the State
Police. We agree with the trial court, however, that, under these circumstances, any gaps in
accounting for the chain of custody concerned the weight of the evidence, not its admissibility.
See id. at 130-131. Additionally, defendant has not actually asserted that the knife at issue had
been altered or replaced before trial. For these reasons, the trial court did not abuse its discretion
by admitting the knife into evidence.
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IV. FALSE TESTIMONY
Defendant argues that the prosecutor improperly failed to correct false testimony from a
prosecution witness during the preliminary examination.
Ordinarily, the test of prosecutorial error “is whether a defendant was denied a fair and
impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). However, if there
is no objection to a prosecutor’s conduct or request for a curative instruction, review is limited to
determining whether there was plain error that affected substantial rights. People v Brown, 279
Mich App 116, 134; 755 NW2d 664 (2008). “Reversal is warranted only when plain error resulted
in the conviction of an actually innocent person, or seriously affected the fairness, integrity, or
public reputation of judicial proceedings.” People v Unger, 278 Mich App 210, 235; 749 NW2d
272 (2008) (quotation marks and citation omitted).
“ ‘[A] State may not knowingly use false evidence, including false testimony, to obtain a
tainted conviction . . . .’ ” People v Smith, 498 Mich 466, 475-476; 870 NW2d 299 (2015), quoting
Napue v Illinois, 360 US 264, 269; 79 S Ct 1173; 3 L Ed 2d 1217 (1959). Prosecutors have a
constitutional obligation to report when a government witness lies under oath because the Due
Process Clause of the Fourteenth Amendment established that “criminal prosecutions must
comport with prevailing notions of fundamental fairness.” People v Herndon, 246 Mich App 371,
417; 633 NW2d 376 (2001) (citation omitted). Michigan courts recognize that “the prosecutor
may not knowingly use false testimony to obtain a conviction.” Id. (citation omitted). The duty
to correct the false testimony of a witness arises when the false testimony appears. People v Wiese,
425 Mich 448, 455; 389 NW2d 866 (1986). Failure to correct false testimony requires reversal if
there is any reasonable likelihood that the false testimony affected the judgment of the jury. People
v Canter, 197 Mich App 550, 568; 496 NW2d 336 (1992).1
In this case, Corrections Officer Dancy testified at the preliminary examination that he saw
defendant stabbing Richards with a metal knife, and he identified the knife from a photograph.
However, at trial, Dancy testified that he did not actually see the knife—in defendant’s hand or on
the floor. It therefore appears that Dancy testified incorrectly at the preliminary examination, as
the prosecutor acknowledges on appeal.
We first note that there is nothing to suggest that the prosecutor during the preliminary
examination was aware that Dancy testified falsely concerning this detail about the case. Thus,
we question whether the prosecutor had a duty at the time to correct his testimony. Regardless,
defendant was convicted after a trial that included Dancy’s testimony that he did not see the knife,
which gave the defense the opportunity to argue that the knife was not properly authenticated.
While defendant argues that he lost the opportunity before trial to challenge Richards’s
1
Although plain error is the typical standard for review of unpreserved errors, our Supreme Court
has suggested that plain error might not apply to Napue errors, even when trial counsel is aware
of the false testimony. See Smith, 498 Mich at 487 n 15. We therefore will not apply the plain-
error standard but instead apply the “reasonable likelihood” standard.
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identification of the photographed knife at trial,2 Richards testified that he immediately identified
the location of the knife to the officers, and as already explained, a reasonable inference of
Nguyen’s testimony is that he was given possession of the knife that Richards identified. Thus,
even if Richards had been unable to identify the photographed knife, it was otherwise identified.
For these reasons, defendant has failed to show a reasonable likelihood that any false testimony at
the preliminary examination affected the verdict.
V. CLOSING ARGUMENT
Defendant argues that the prosecutor’s closing argument denied him a fair trial because he
argued facts that were not in evidence regarding the knife that was entered into evidence.
Defendant alternatively argues that his trial attorney was ineffective for having failed to raise an
attendant objection.
When there is no objection to the prosecutor’s conduct and no request for a curative
instruction, review of a claim of prosecutorial error is limited to determining whether there was
plain error that affected substantial rights. Brown, 279 Mich App at 134. An unpreserved claim
of ineffective assistance of counsel is reviewed for errors apparent on the record. Unger, 278 Mich
App at 253. The constitutional question whether an attorney provided ineffective assistance,
depriving a defendant of the right to counsel, is reviewed de novo. Id. at 242.
The responsibility of a prosecutor is “to seek justice and not merely convict.” Dobek, 274
Mich App at 63. “[T]he test of prosecutorial [error] is whether a defendant was denied a fair and
impartial trial.” Id. “A prosecutor may not make a statement of fact to the jury that is not supported
by evidence presented at trial and may not argue the effect of testimony that was not entered into
evidence.” Unger, 278 Mich App at 241. A defendant “has a right to a fair and impartial jury”
with jurors who deliberate about only the “evidence that is presented to them in open court.”
People v Budzyn, 456 Mich 77, 88; 566 NW2d 229 (1997).
Defendant first takes issue with the prosecutor’s remarks in closing regarding the
appearance of the knife. The prosecutor stated, “It is a makeshift weapon. But it is something that
this defendant took time and care . . . [t]o produce so that he could attack Mr. Richards.” In
rebuttal, the prosecutor added the following:
It is not a kitchen knife. . . . It is far more dull and far more difficult to plunge into
somebody’s flesh and do things to hurt them because . . . [i]t is not made for
that. . . . This is a piece of metal that they spend time in his cell doing this on the
ground, hours, days, I am going to get Tyler Richards. I’m going to get Tyler
Richards. . . . And once I was done, what did he do? Flip it over time. Going to
get Tyler Richards, over and over. . . . You don’t do that unless you want to cause
2
Specifically, defendant argues that because he expected Dancy to identify the photographed knife
at trial, he had no reason to “rightfully demand[] Mr. Richards describe the weapon before seeing
a photo of it.”
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great bodily harm to somebody. You don’t walk into somebody naked in the
shower and say: “You are a dead man,” unless you want to do great bodily harm.
Defendant notes that it was not in evidence that defendant spent time fashioning the knife
or thinking of stabbing Richards. However, prosecutorial comments must be read as a whole and
evaluated in context, including the arguments of the defense and the relationship that they bear to
the evidence. People v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004). Prosecutors are
also “generally free to argue the evidence and all reasonable inferences from the evidence as it
relates to their theory of the case.” Unger, 278 Mich App at 236. In this case, the challenged
statements concerned intent, and defendant had argued that the evidence did not demonstrate
defendant’s intent to inflict great bodily harm, particularly because the knife was dull. Richards
testified that defendant stabbed him with a “shank,” which he stated was a piece of metal or plastic
with a pointed edge and a handle, which in this case was cellophane wrap.3 The prosecutor’s
statement that defendant used a self-styled knife was based on the evidence, and it was a reasonable
inference from the evidence that defendant manufactured his own weapon. The argument about
intent was also based on defendant’s possessing a self-manufactured weapon. It is a reasonable
inference that defendant possessed the weapon in order to harm someone, and the evidence that
defendant stabbed Richards with it supported the inference that he intended to harm Richards in
particular. The prosecutor’s use of dramatic wording did not make the arguments that defendant
possessed a “shank,” and made the weapon with the intent to harm Richards, impermissible.
Defendant also argues that the prosecutor’s argument equating the knife that was recovered
with the knife used in the assault was not based on the evidence. However, the argument in
question was an accurate recounting of Nguyen’s testimony that another sergeant provided the
knife from the shower room to him, and that he placed it in an evidence bag for the State Police to
collect. In inviting the jury to infer that Nguyen’s possession of the recovered weapon soon after
the attack indicated that the weapon was accounted for at all times, the prosecutor included no
remarks that were not supported by the evidence.
Defendant also takes exception to the prosecutor’s closing remarks about two witnesses
testifying that defendant possessed a knife while assaulting Richards. At trial, only Richards
testified that he saw defendant with the knife in his hand, while Dancy stated that he did not see
the weapon. However, viewing the challenged comment in the context, it is apparent that the
prosecutor was not asserting that Dancy actually saw defendant with the weapon, but was merely
inferring from Dancy’s testimony that defendant possessed a knife in the shower. Before the
prosecutor made the statement in question, the prosecutor pointed out that, according to the
evidence, Dancy saw defendant making stabbing motions at Richards’s upper torso then heard
defendant drop something once he was subdued, that Richards was wounded and bleeding in the
upper torso, that Richards saw defendant toss the knife under a heating register in the shower room
where the knife was found, and that video evidence supported Dancy’s description of the attack.
Defendant does not dispute that the facts leading to the prosecutor’s conclusion were not in
evidence. Further, the prosecutor in fact acknowledged to the jury that Dancy did not see the knife
3
We note that Richards testified that he was stabbed with a makeshift “shank” before he identified
the photographed knife.
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while encouraging the jury to glean from the circumstantial evidence, including from Dancy, that
defendant possessed the knife. For these reasons, we conclude that the prosecutor was not asking
the jury to consider facts not in evidence.
Defendant argues that the comment that Richards saw defendant with a unique knife was
not in evidence. However, it was a reasonable inference from the evidence that the prosecutor
cited—that the knife was a self-made shank, and that it had a cellophane-wrap handle—that the
knife had distinctive properties. Prosecutors are “generally free to argue the evidence and all
reasonable inferences from the evidence as it relates to their theory of the case.” Unger, 278 Mich
App at 236. Defendant has not shown that any of the prosecutor’s arguments were improper.
Defendant alternatively argues that his trial counsel provided ineffective assistance by
failing to object to the challenged prosecutorial remarks. In order to prevail on a claim of
ineffective assistance of counsel, a defendant must show (1) “that counsel’s performance was
deficient” and (2) “that counsel’s deficient performance prejudiced the defense.” People v Taylor,
275 Mich App 177, 186; 737 NW2d 790 (2007) (citation omitted). A counsel’s performance is
deficient if “it fell below an objective standard of professional reasonableness.” People v Jordan,
275 Mich App 659, 667; 739 NW2d 706 (2007). In this case, defendant has not demonstrated that
his trial counsel’s performance was deficient because he had not established that any objection to
the prosecutor’s comments would have been meritorious. See People v Ericksen, 288 Mich App
192, 201; 793 NW2d 120 (2010) (“Failing to advance a meritless argument or raise a futile
objection does not constitute ineffective assistance of counsel.”).
VI. CUMULATIVE ERROR
Defendant argues that the cumulative effect of errors in his trial denied him a fair trial.
“This Court review [sic] a cumulative-error argument to determine if the combination of alleged
errors denied the defendant a fair trial.” People v Hill, 257 Mich App 126, 152; 667 NW2d 78
(2003). However, defendant has brought to light no errors related to the introduction of the knife
in his trial, or its use as evidence. And although the trial court erred by not providing a missing-
witness instruction with regard to two witnesses who were endorsed but did not appear, that error,
as we concluded above, did not deny defendant a fair trial, and thus does not warrant reversal.
VII. SENTENCING
Defendant argues that he is entitled to resentencing because the trial court relied on
inaccurate information when imposing sentence.
The Court reviews the trial court’s factual determinations at sentencing for clear error, and
the findings must be supported by a preponderance of the evidence. See People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013). “We review a trial court’s response to a claim of
inaccuracy in the PSIR for an abuse of discretion.” People v Lucey, 287 Mich App 267, 275; 787
NW2d 133 (2010).
“A defendant is entitled to be sentenced by a trial court on the basis of accurate
information.” People v Francisco, 474 Mich 82, 88; 711 NW2d 44 (2006). “[A] sentence is
invalid if it is based on inaccurate information.” People v Miles, 454 Mich 90, 96; 559 NW2d 299
(1997).
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The recommended guidelines range for defendant’s minimum sentence was 38 to 78
months, and the trial court imposed a minimum sentence of 72 months, as the Department of
Corrections had recommended. The trial court agreed with trial counsel that defendant may have
been afraid to live outside of prison, as demonstrated by the occurrence of the subject assault near
his release date after defendant, now 33 years old, had been in prison since he was 17. The
prosecutor noted that defendant served close to his maximum sentence because of prison
misconduct, and defendant told the trial court that he would like to learn to live outside of prison.
While sentencing defendant, the trial court stated as follows:
Here’s the problem . . . . The victim in this case, who was also in prison,
had no interaction with you. You tried to kill him. He was randomly selected, and
that’s the reality. And the recommendation here is absolutely appropriate under
those circumstances. You want to get out into free society, well, take advantage of
some of the programs that are available in prison. Many people have come through
this court who have done extended periods of time in prison, have taken advantage
of the various counseling programs, education programs in an attempt to get ready.
So you should take advantage.
Defendant asserts that the false information relied on by the trial court was that Richards
was randomly selected because defendant had no interaction with Richards, when in fact Richards
testified that he had once interacted with defendant when defendant gave him books about two
weeks before the stabbing because he did not have a television. However, we do not regard the
evidence of that one benign exchange as exposing the trial court’s statement about no interaction
as a falsehood. The difference between no interactions, as mentioned by the trial court, and one
unremarkable interaction does not constitute clear error.
Defendant also states that it was untrue that defendant wanted to kill Richards. However,
according to the evidence, defendant attacked Richards in the shower and repeatedly stabbed at
his head, neck, and shoulder area, and did not stop until officers subdued him. Because defendant
was not charged with a crime involving intent to murder, the jury did not have to consider whether
he intended to kill Richards. Nonetheless, given the circumstances and intensity of the attack, a
preponderance of the evidence supported that defendant intended to do so.4
Defendant also argues that his presentence investigation report (PSIR) incorrectly states
that he belonged to a gang, and that the trial court should have corrected that misstatement. The
“Department of Corrections makes critical decisions concerning a defendant’s status on the basis
of information contained in the PSIR,” and thus, “the PSIR should accurately reflect any
determination the sentencing judge has made regarding the accuracy or relevance of its
information.” People v Waclawski, 286 Mich App 634, 689-690; 780 NW2d 321 (2009).
4
As defendant was neither charged with nor acquitted of a crime involving intent to murder, this
case does not run afoul of People v Beck, 504 Mich 605; 939 NW2d 213 (2019), in which our
Supreme Court held that a trial court cannot rely upon “acquitted conduct when imposing
sentence.” Id. at 609. In any event, the trial court’s statement was fleeting and does not appear to
have formed a significant basis for its sentence.
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The PSIR in this case states that defendant denies being in a gang, that Richards reported
that defendant was in a gang, and that the Department of Corrections does not know whether
defendant was in a gang. At sentencing, the trial court asked defendant whether he reviewed the
PSIR and whether it was factually accurate, and defendant responded, “Yes.” Thus, the trial court
was not asked to resolve any factual matters in the PSIR. This amounted to a waiver by defendant,
which extinguished objections on appeal. See People v Carter, 462 Mich 206, 215-216; 612
NW2d 144 (2000). In any event, the PSIR acknowledges that the victim accused defendant of
gang involvement, that defendant denied the accusation, and did not itself offer a resolution of the
dispute. Thus, defendant’s arguments on appeal expose no inaccuracy about gang involvement.5
VIII. CONCLUSION
There were no errors warranting relief. Accordingly, we affirm.
/s/ Michael J. Riordan
/s/ Jane E. Markey
/s/ Brock A. Swartzle
5
On December 16, 2020, this Court denied defendant’s motion to remand to the trial court to
correct the PSIR and for resentencing, stating that the denial was “without prejudice to a case call
panel of this Court determining that remand is necessary once the case is submitted on a session
calendar.” People v Antoine, unpublished order of the Court of Appeals, entered December 16,
2020 (Docket No. 353013). Given our resolution of this issue today, we conclude that a remand
is unnecessary.
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