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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v SHAKITA TANISHA CARR, Defendant-Appellant.

UNPUBLISHED September 29, 2011

No. 298226 Wayne Circuit Court LC No. 09-023576-FH

Before: SERVITTO, P.J., and MARKEY and K. F. KELLY, JJ. PER CURIAM. Defendant appeals as of right her bench trial convictions of assault with a dangerous weapon (felonious assault), MCL 750.82, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced to two years' probation for the felonious assault conviction, and two years' imprisonment for the felony-firearm conviction. Because the trial court did nor err in its admission of evidence and defendant was not denied the effective assistance of counsel, we affirm. Defendant's convictions arise out of an incident that occurred on September 7, 2009. On that date, defendant went to her girlfriend's upstairs flat and discovered the electricity off. Apparently upset, and having had previous issues with her girlfriend's niece, defendant pointed a gun at the window of the downstairs flat where her girlfriend's niece, Nesa King, and King's children resided. King called the police and when they arrived some time later, they ordered defendant and her then present girlfriend out of the upstairs flat. The police found a rifle hidden in the upstairs flat. Defendant first argues that the trial court plainly erred in admitting hearsay evidence. Specifically, defendant challenges the admission of King's testimony that another adult present in the downstairs flat at the time of the incident, Donte Scott, said "She got a gun." We find that the challenged testimony, when read in context, does not amount to hearsay. Generally, a trial court's decision whether to admit evidence is reviewed for an abuse of discretion. People v Stamper, 480 Mich 1, 4; 742 NW2d 607 (2007). However, because defendant failed to preserve this issue for appeal, this Court reviews the issue for plain error affecting her substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). In order to avoid forfeiture under the plain error rule, the following three elements must be met: "1) error must have occurred; 2) the error was plain, i.e., clear or obvious; 3) and the -1-

plain error affected substantial rights." Id. at 763. The third element generally requires proof of prejudice; and even after all three requirements are satisfied, reversal is warranted only if the error resulted in the conviction of an actually innocent defendant or if the error seriously compromised the fairness and integrity of the proceedings independent of whether the defendant was innocent. Id. Hearsay is "a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." MRE 801(c). Hearsay is not admissible unless it falls into an exception provided by the rules of evidence. MRE 802. Here, King's testimony regarding Donte Scott's statement that defendant had a gun was not hearsay because it was not elicited to prove the truth of the matter asserted. Rather, the evidence was presented to explain why King went to the window of her home to observe what was taking place outside: Q: And then Donte went to the window. And that's when Donte made some observation that causes you

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