Police testimony identifying defendant in a surveillance video; People v Fomby; United States v Dixon (6th Cir); Harmless error; Other acts evidence; MRE 404(b); Relevance to a noncharacter purpose; MRE 403; Distinguishing People v Jackson; Ineffective assistance of counsel; Hearsay; Out-of-court statement offered to show the effect of the statement on the hearer; People v Musser; Sentencing; Scoring of OV 12; MCL 777.42(2)(a)(i) & (ii); MCL 777.42(2)(b); Credit; MCL 769.11b; Delay in bringing charges; Due process

The court held that while admission of one police officer’s (H) testimony identifying defendant in security camera footage was error, it was unlikely to have affected the verdict. It rejected defendant’s challenge to the admission of testimony by H and another officer (V) about their prior contacts with him, and his ineffective assistance of counsel claim. Further, another officer’s testimony about what witness-R told him during the traffic stop was offered to show why the police searched R’s car, and even if it was admitted in error, it did not affect the outcome. The court also held that the trial court erred in scoring 5 points for OV 12 and resentencing was required. But he was not entitled to more sentencing credit and he failed to establish a due process violation based on the delay in filing some of the charges against him. In these consolidated appeals, defendant appealed convictions of AWIGBH and felony-firearm, and sentences as a second-offense habitual offender to 5 to 15 years for AWIGBH and 2 years for felony-firearm. He also appealed convictions for CCW in a vehicle, FIP, and felony-firearm, and sentences as a second-offense habitual offender to 24 to 90 months for CCW and FIP, and 2 years for felony-firearm. The court concluded one officer (A) did not offer “improper identification testimony.” A did not testify that the person in the footage “was defendant. He only testified that the sweatshirt worn by defendant in a photograph seized from his phone appeared to be ‘very similar’ to the sweatshirt worn by the suspect shown in the” footage. There was no plain error in admitting V’s identification testimony as there was reason to believe he “was more likely than the jury to correctly identify defendant from the” footage. Less than a year before the shooting giving rise to the charges, V “spent three to four months studying pictures of defendant from defendant’s social media accounts, in addition to” driver’s license and prior booking photos. Further, “ample other evidence” apart from the officers’ identification testimony supported defendant’s convictions. Among other things, R “testified that defendant put a handgun in a bag in the back seat of her car, and” an expert testified that the bullet found in the victim’s “car was fired from that handgun.” The court vacated his AWIGBH sentence and remanded for resentencing for that offense but affirmed in all other respects.