Opinion
No. 346290
04-23-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TERRANCE ANDRE CHILDS, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court
LC No. 2018-265961-FH Before: RIORDAN, P.J., and FORT HOOD and SWARTZLE, JJ. PER CURIAM.
Defendant appeals as of right from his jury convictions of multiple offenses and the resulting sentences. Challenging his convictions, defendant raises arguments regarding the sufficiency and great weight of the evidence, prosecutorial error, and ineffective assistance of counsel. Challenging his sentences, defendant raises arguments regarding a habitual offender notice, calculation of offense variables, consecutive sentencing, and the constitutionality of a fee. We affirm.
I. BACKGROUND
During the evening of January 7, 2018, and into the early morning hours of January 8, 2018, defendant was at his mother's house playing cards with the victim, the victim's girlfriend, and several other friends and relatives. The victim's girlfriend, Tamisha Powell, was also defendant's ex-girlfriend, and she and defendant had a child in common. The victim testified that he won $80 during the card game. Although no altercation occurred during the card game, the victim testified that he became concerned and jealous of Powell's interactions with defendant. This caused a verbal altercation between Powell and defendant, and Powell ultimately drove the victim to his home, which he shared with his grandmother.
After Powell left, the victim called her and asked her to return. Powell informed the victim that she was already outside of his house. The victim went to the door and saw two men approaching the house behind Powell, one of whom was Robert Pollard-Christy. The second man was never identified. When the victim opened his door to let Powell inside, he heard defendant—whom he had not seen standing to the side of the door—say something about money. Almost immediately, defendant punched the victim in the face and all four people entered the victim's home. Defendant, Pollard-Christy, and the unidentified man proceeded to assault the victim inside his home, and the victim fell to the ground in an attempt to protect himself.
The victim's grandmother woke during the altercation and entered the living room. Upon seeing the assault, she told the men to get off of the victim. In response, one of the men struck her in the face and she suffered a black eye. When the victim realized that his grandmother had been hit, he tried to fight back. The victim's grandmother then announced that she was calling the police, and the intruders fled. Defendant and Pollard-Christy were later arrested and tried together but with separate juries.
At trial, the victim testified over the course of three separate days, during which he provided inconsistent testimony from day to day. During cross-examination, the victim stated that he invited defendant into the house before the assault occurred. Earlier in the trial, however, the victim specifically stated that he did not invite defendant into the house. Instead, the victim testified that he invited only Powell into the house. Indeed, the victim repeatedly claimed that he did not see defendant approach the house, and thus, could not have invited him inside. The victim also testified that, before defendant punched his face, they had a conversation about money, referring to the $80 that he won during the card game.
During his trial testimony, the victim denied that a gun was present during the assault. Yet, the prosecutor presented the jury with the 911 recording in which the victim's grandmother informed the 911 operator that one of the men had a gun. As she said that, the victim could be heard in the background verifying the presence of a gun. Later during the call, the victim reasserted that one of the men had a gun. When the victim spoke with police immediately after the assault, he reiterated that the men had a gun and that they tried to drag him outside.
The victim's grandmother testified that she called 911 as the fight was ending or had just ended. During the call, the victim's grandmother stated that people "broke into" her house. On the recording, the victim can be heard telling the 911 operator that several men had just run into his home and started beating him, and he specifically described the situation as a "home invasion." The 911 recording is five minutes long. At the end of the recording, the victim can be heard telling the 911 operator that the police had just arrived at his home.
Deputy Brandon Scruggs testified that he was the first police officer to arrive, and the first thing he did was speak to the victim. Deputy Scruggs stated that the victim's shirt was covered in blood and he appeared upset. When the prosecutor asked Deputy Scruggs about the victim's statements that night, defendant objected. In an attempt to establish that the victim's statements fell under the excited-utterance exception to the hearsay rule, the prosecutor elicited further testimony from the deputy about the victim's behavior and appearance. The deputy testified that he arrived at the scene within six or seven minutes of the 911 call. He observed that the victim appeared to be coherent, and was not excessively intoxicated, but appeared to be upset, panicked, and unable to focus.
Deputy Scruggs also testified that he saw blood on the wall of the home when he first arrived to speak with the victim, and that the victim was bleeding from his mouth and had blood on his shirt. The victim's grandmother similarly testified that, while she was cleaning the house after the altercation, she had to clean blood out of the carpet and curtains. Further, she stated that it took her about seven or eight hours to clean up the house after the fight, noting that there were "two glass tables knocked down, a lamp and six plants with the dirt . . . black dirt and everything all over the carpeting." Meanwhile, the victim testified that he suffered significant injuries after being beaten by defendant and his cohorts. Three photographs admitted into evidence showed swelling and bruising on the victim's head and face. Although the victim did not seek medical treatment for those injuries, his grandmother testified that she urged him to obtain such care.
The jury convicted defendant of first-degree home invasion, MCL 750.110a(2); assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84(1)(a); and assault and battery, MCL 750.81. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to a term of 15 to 80 years in prison for the first-degree home invasion conviction, 26 to 80 years in prison for the AWIGBH conviction, and 93 days in jail for the assault and battery conviction. The trial court ordered that defendant serve consecutive prison sentences for first-degree home invasion and AWIGBH convictions.
Defendant now appeals, challenging both his convictions and sentences.
II. ANALYSIS
A. HEARSAY EVIDENCE
Defendant first argues that the trial court abused its discretion by admitting hearsay testimony from Deputy Scruggs, relating what the victim said at the scene. Because the victim's statements fell within the excited-utterance exception to the hearsay rule, we conclude that the trial court did not err in admitting the deputy's testimony.
"When the issue is preserved, we review a trial court's decision to admit evidence for an abuse of discretion, but review de novo preliminary questions of law, such as whether a rule of evidence precludes admissibility." People v Chelmicki, 305 Mich App 58, 62; 850 NW2d 612 (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). "[W]hen such preliminary questions of law are at issue, it must be borne in mind that it is an abuse of discretion to admit evidence that is inadmissible as a matter of law." People v Henry, 315 Mich App 130, 143; 889 NW2d 1 (2016).
Defendant argues that the testimony of Deputy Scruggs regarding the victim's statements on the night of the crime was inadmissible hearsay. 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 evidence is inadmissible unless it falls within one of the exceptions listed in the Michigan Rules of Evidence." People v Solloway, 316 Mich App 174, 199; 891 NW2d 255 (2016), citing MRE 802.
We conclude that the testimony was admissible under the excited-utterance exception to the hearsay rule. This exception allows admission of statements "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." MRE 803(2). "The rule allows hearsay testimony that would otherwise be excluded because it is perceived that a person who is still under the sway of excitement precipitated by an external startling event will not have the reflective capacity essential for fabrication so that any utterance will be spontaneous and trustworthy." People v Smith, 456 Mich 543, 550; 581 NW2d 654 (1998) (cleaned up). For the rule to apply, "a statement must meet three criteria: (1) it must arise out of a startling occasion; (2) it must be made before there has been time to contrive and misrepresent; and (3) it must relate to the circumstances of the startling occasion." People v Straight, 430 Mich 418, 424; 424 NW2d 257 (1988) (cleaned up).
The hearsay testimony at issue in this case involves the victim's statements to Deputy Scruggs when he arrived at the victim's home after the crime occurred. Defendant does not contest that the statements were made after a startling event and related to that event. Thus, the only element in contention is the second one, which requires that the statement "must be made before there has been time to contrive and misrepresent." Id. (cleaned up).
Defendant argues that enough time had passed to disqualify the victim's statement as an excited utterance. The trial court did not abuse its discretion in finding the contrary. "The pertinent inquiry is not whether there has been time for the declarant to fabricate a statement, but whether the declarant is so overwhelmed that [he] lacks the capacity to fabricate." People v McLaughlin, 258 Mich App 635, 659-660; 672 NW2d 860 (2003). "Physical factors, such as shock, unconsciousness, or pain, may prolong the period in which the risk of fabrication is reduced to an acceptable minimum." Smith, 456 Mich at 552 (cleaned up). "The trial court's determination whether the declarant was still under the stress of the event is given wide discretion." Id.
The trial court was presented with evidence that the victim suffered a severe beating by a group of three men in the middle of the night. During that altercation, the victim's grandmother had been struck in the face. Within 10 minutes of that fight, the victim spoke to Deputy Scruggs. During the conversation, the deputy observed that the victim was upset, panicked, and unable to focus. Considering the proximity in time to the startling event, the severity of the fight, and the victim's demeanor during his statement, the trial court was well-supported in holding that the victim spoke to the deputy while so overwhelmed that he lacked the capacity to fabricate. See McLaughlin, 258 Mich App at 659-660. Consequently, the trial court did not abuse its discretion when it admitted the deputy's testimony regarding the victim's statements into evidence under the excited-utterance exception to the hearsay rule.
Furthermore, to the extent that defendant argues on appeal that he was denied his right to a fair trial or to due process of law because of the admission of the deputy's testimony, defendant has not established plain error affecting his substantial rights. The trial court's admission of the evidence was proper. Because no error occurred, defendant has provided no grounds for us to determine that the trial was constitutionally unfair or that defendant was deprived of his right to due process of law.
B. SUFFICIENCY AND GREAT WEIGHT OF THE EVIDENCE
Defendant next argues that the prosecutor presented insufficient evidence to support his conviction of first-degree home invasion. In his Standard 4 brief on appeal, defendant also argues that there was insufficient evidence to support his conviction of AWIGBH and that both convictions were against the great weight of the evidence.
"A defendant need not take any action to preserve a challenge to the sufficiency of the evidence." People v Williams, 294 Mich App 461, 471; 811 NW2d 88 (2011). Therefore, defendant's challenges to the sufficiency of the evidence to support his convictions of first-degree home invasion and AWIGBH are preserved for appellate review. In his Standard 4 brief, however, defendant also argues that these two convictions were against the great weight of the evidence. A challenge to the great weight of the evidence is preserved by making a motion for a new trial on that ground. People v Musser, 259 Mich App 215, 218; 673 NW2d 800 (2003). Because defendant never moved for a new trial, his great-weight arguments are not preserved for appellate review. Id.
On appeal, this Court reviews de novo a challenge to the sufficiency of the evidence. Henry, 315 Mich App at 135. When reviewing a sufficiency challenge, "we review the evidence in the light most favorable to the prosecutor and determine whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt." People v Smith-Anthony, 494 Mich 669, 676; 837 NW2d 415 (2013) (cleaned up). "The standard of review is deferential: a reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict." People v Bailey, 310 Mich App 703, 713; 873 NW2d 855 (2015) (cleaned up).
When reviewing a great-weight challenge, typically, "[w]e review for an abuse of discretion a trial court's grant or denial of a motion for a new trial on the ground that the verdict was against the great weight of the evidence." People v Lacalamita, 286 Mich App 467, 469; 780 NW2d 311 (2009). This Court, however, reviews unpreserved challenges to the great weight of the evidence for plain error affecting the defendant's substantial rights. People v Lopez, 305 Mich App 686, 695; 854 NW2d 205 (2014). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). To show that a defendant's substantial rights were affected, there must be "a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id. "Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." People v Randolph, 502 Mich 1, 10; 917 NW2d 249 (2018) (cleaned up).
1. FIRST-DEGREE HOME INVASION
Defendant argues that the prosecutor presented insufficient evidence to prove beyond a reasonable doubt that he committed first-degree home invasion because there was no proof that he entered the victim's home without permission or committed breaking and entering. Alternatively, he argues for the same reasons that his conviction of first-degree home invasion was against the great weight of the evidence. Defendant's arguments are without merit.
First-degree home invasion "can be committed in several different ways, each of which involves alternative elements necessary to complete the crime." People v Wilder, 485 Mich 35, 43; 780 NW2d 265 (2010). Defendant argues that the prosecutor failed to prove the first element of the offense, which is that defendant either breaks and enters a dwelling or enters a dwelling without permission. Id.
The prosecutor presented sufficient evidence that defendant entered the house without permission. During cross-examination, the victim did state that he invited defendant into the house before the assault occurred. Earlier in the trial, however, the victim specifically stated that he did not invite defendant into the house. Instead, the victim testified that he invited only Powell into the house. Indeed, the victim repeatedly asserted that he did not see defendant approach the house, and thus, could not have invited him inside. "A jury is free to believe or disbelieve, in whole or in part, any of the evidence presented." People v Russell, 297 Mich App 707, 721; 825 NW2d 623 (2012) (cleaned up). Although the victim's testimony was inconsistent, the jury was free to believe his testimony that he did not invite defendant inside his home. The jury was further supported in reaching that conclusion based on the 911 recording, in which the victim's grandmother stated that the people "broke into" her house, while the victim described the situation as a "home invasion" and stated that several men ran into his home and started beating him.
The jury was permitted to believe the version of the victim's testimony that was supported by the 911 recording, and to disbelieve the version of his testimony that he invited defendant into the home. Id. On appeal, this Court is required to assume that the jury did just that, because in the context of a sufficiency claim, this Court must resolve all evidentiary conflicts "in favor of the prosecution." Henderson, 306 Mich App at 9. Consequently, there was sufficient evidence to sustain the jury's finding that defendant did not have permission to enter the victim's home when the assault occurred, fulfilling the first element of first-degree home invasion. See Wilder, 485 Mich at 43.
Next, in his Standard 4 brief on appeal, defendant argues that his conviction of first-degree home invasion was against the great weight of the evidence. "A verdict is against the great weight of the evidence and a new trial should be granted when the evidence preponderates heavily against the verdict and a serious miscarriage of justice would otherwise result." Solloway, 316 Mich App at 182-183 (cleaned up).
Defendant relies on the same argument he made regarding sufficiency of the evidence—that the prosecutor failed to prove that he entered the victim's home without permission. Although the victim gave inconsistent testimony on that issue, the record does not support a finding that his testimony was "so far impeached that it was deprived of all probative value or that the jury could not believe it." People v Lemmon, 456 Mich 625, 645-646; 576 NW2d 129 (1998) (cleaned up). Instead, the jury was permitted to believe that testimony, especially where it was supported by the 911 recording. Defendant's argument that his first-degree home invasion conviction was against the great weight of the evidence is without merit.
2. AWIGBH
Next, in his Standard 4 brief, defendant challenges the sufficiency of the evidence to support his AWIGBH conviction, and alternatively argues that this conviction was against the great weight of the evidence. "The elements of assault with intent to do great bodily harm less than murder are: (1) an attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an intent to do great bodily harm less than murder." People v Blevins, 314 Mich App 339, 357; 886 NW2d 456 (2016) (cleaned up). In this appeal, defendant only challenges the intent element of the crime.
"AWIGBH is a specific intent crime." People v Stevens, 306 Mich App 620, 628; 858 NW2d 98 (2014). "This Court has defined the intent to do great bodily harm as an intent to do serious injury of an aggravated nature." Blevins, 314 Mich App at 357 (cleaned up).
Because of the difficulty in proving an actor's intent, only minimal circumstantial evidence is necessary to show that a defendant had the requisite intent. Intent to cause serious harm can be inferred from the defendant's actions, including the use of a dangerous weapon or the making of threats. Although actual injury to the victim is not an element of the crime, injuries suffered by the victim may also be indicative of a defendant's intent. [Stevens, 306 Mich App at 629 (citations omitted).]
At trial, the victim testified that he suffered significant injuries after being beaten by defendant and his cohorts. The photographs admitted into evidence, which showed swelling and bruising on the victim's head and face, supported that testimony. Although the victim did not seek medical treatment for those injuries, the victim's grandmother testified that she urged defendant to obtain such care. Further, the photographs show that the injuries were quite serious. Thus, the type of injuries suffered by the victim was enough to support the jury's conclusion that defendant intended to cause the victim great bodily harm.
Regarding defendant's argument that he could not be convicted of AWIGBH for a crime that was committed using only his bare hands, defendant ignores the fact that the jury was presented with admissible evidence that a gun was present during the assault. Furthermore, defendant relies on a case that is not applicable. Defendant argues that this Court should follow People v VanDiver, 80 Mich App 352; 263 NW2d 370 (1977). That case, however, analyzed a conviction of felonious assault, MCL 750.82, which requires proof of the use of a "dangerous weapon." Id. at 354. Thus, this Court held "that the term 'dangerous weapon' cannot be construed to include the bare hand." Id. at 357. In this case, defendant was convicted of AWIGBH, which does not require proof of the use of a dangerous weapon. Blevins, 314 Mich App at 357. Consequently, defendant's reliance on VanDiver is misplaced.
In sum, the jury was presented with evidence that defendant participated in the beating of the victim, which resulted in significant injuries to the victim's head and face and involved a gun. Considering the extent of the injuries and the presence of the gun, the jury was permitted to infer that defendant had the intent to cause the victim great bodily harm. See Stevens, 306 Mich App at 629. Thus, there was sufficient evidence to sustain defendant's conviction of AWIGBH. See Blevins, 314 Mich App at 357; MCL 750.84(1)(a).
In his Standard 4 brief, defendant alternatively argues that his AWIGBH conviction was against the great weight of the evidence. Defendant relies on the same arguments already discussed. Although the victim did present inconsistent testimony regarding the presence of a gun, his testimony regarding the significance of his injuries was supported by the photographic evidence. Moreover, while the victim's inconsistent testimony regarding the gun was subject to impeachment, it could not be said that the evidence of the presence of a gun "was so far impeached that it was deprived of all probative value or that the jury could not believe it." Lemmon, 456 Mich at 645-646 (cleaned up). Instead, it was within the realm of reasonableness that the jury decided to disbelieve the victim's trial testimony regarding the absence of the gun, and to believe his earlier statement, made to the 911 operator and Deputy Scruggs in the heat of the moment, that a gun was present. Defendant's argument that his AWIGBH conviction was against the great weight of the evidence is without merit.
C. PROSECUTORIAL ERROR
Defendant next argues, in his Standard 4 brief, that the prosecutor committed error requiring reversal and the grant of a new trial. Defendant's argument is without merit.
A claim of prosecutorial error is preserved by a contemporaneous objection and a request for a curative instruction. People v Mullins, 322 Mich App 151, 172; 911 NW2d 201 (2017). Defendant did not object to the alleged incidents of prosecutorial error or request curative instructions during trial. Therefore, this issue is not preserved for our review. Id. This Court generally reviews de novo claims of prosecutorial error to determine whether the defendant was denied a fair trial. People v Dunigan, 299 Mich App 579, 588; 831 NW2d 243 (2013). Because this issue has not been preserved for review, we review it only for plain error affecting defendant's substantial rights. People v Roscoe, 303 Mich App 633, 648; 846 NW2d 402 (2014).
We must evaluate claims of prosecutorial error on a case-by-case basis, reviewing the prosecutor's actions in context and in light of the defendant's arguments. People v Lane, 308 Mich App 38, 62-63; 862 NW2d 446 (2014). "Generally, prosecutors are accorded great latitude regarding their arguments and conduct," and they are "free to argue the evidence and all reasonable inferences from the evidence as it relates to [their] theory of the case." People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995) (cleaned up). In making those arguments, "[t]he prosecutor need not speak in the blandest of all possible terms." Blevins, 314 Mich App at 355 (cleaned up). Nonetheless, "a prosecutor may not make a statement of fact to the jury that is unsupported by the evidence." People v Ericksen, 288 Mich App 192, 199; 793 NW2d 120 (2010) (cleaned up).
Defendant first argues that the prosecutor committed error by arguing that there was blood in the victim's home after the fight and that the home was "torn up." Defendant contends that the evidence established that there was not blood in the home or signs of a fight. As noted above, however, Deputy Scruggs testified that he saw blood on the wall of the home and that the victim was bleeding from his mouth and had blood on his shirt. The victim's grandmother testified that, while she was cleaning the house after the altercation, she had to clean blood out of the carpet and curtains, and it took her about seven or eight hours to clean up the house. Thus, the prosecutor did not raise facts not in evidence. Because there was evidence of blood in the house and that the house was a mess, the prosecution did not commit error, plain or otherwise, by talking about it. See id.
Next, defendant argues that the prosecutor committed error by repeatedly referring to a gun throughout the case. Defendant asserts that this was impermissible because there was no evidence that defendant or his cohorts had a gun on the night of the attack. Defendant primarily relies on the victim's trial testimony that no gun was present during the assault. Defendant's argument ignores the statements made during the 911 recording and the deputy's testimony regarding the victim's statements at the scene of the crime. The prosecutor did not state facts that were not in evidence and did not commit error, plain or otherwise. Id.
Defendant also argues that the prosecutor committed error by arguing that defendant had a motive to fight the victim. Specifically, defendant challenges statements that the fight was about money. Once again, however, the record supports the prosecutor's argument regarding money. During direct examination, the victim testified that, before defendant punched his face, they had a conversation about money. Previously, the victim had testified that he had won $80 during the card game that preceded the altercation. Thus, there was record support for the assertion that defendant's assault of the victim started because of money.
Next, defendant argues that the prosecutor committed error by referencing jealousy as a motive for the fight. During his testimony, the victim repeatedly stated that he had some level of jealousy regarding the interactions between defendant and Powell on the night in question. The victim explained the jealousy as resulting from defendant and Powell's previous relationship, from which they had a child. Accordingly, when the prosecutor referenced jealousy as a motive for the fight, this referred to the victim, and was well-supported by the testimony at trial. Consequently, the prosecutor did not raise any facts that were not supported by evidence, and did not commit error requiring reversal. Id.
Defendant next argues that the prosecutor committed error by inappropriately referring to the victim's statement to the police made on the night of the crime. In the testimony cited by defendant, the prosecutor used the victim's statement to police for impeachment purposes. Specifically, while being examined by the prosecutor, the victim denied that he was kicked during the fight and denied that one of the men attempted to drag him out of the house. The prosecutor referenced the victim's written statement to the police, which was inconsistent with this testimony. The victim denied that he said he was being dragged, and claimed that he did not remember what he said in the written statement, which was not admitted as substantive evidence. The prosecutor was permitted to challenge the victim's testimony based on his prior inconsistent statements in the police report. MRE 613(a); MRE 607. The prosecutor's decision to impeach the victim with his prior written inconsistent statement, without admitting it as substantive evidence, was not an error.
Lastly, defendant makes a multitude of challenges to what he purports to be the prosecutor's closing argument. Defendant's argument regarding these issues is without merit because he is referencing the closing argument made by the prosecutor to Pollard-Christy's jury. Defendant's jury was not present in the courtroom during all of those statements by the prosecutor. Because none of the challenged statements were made in the case against defendant or heard by his jury, the statements could not have caused defendant to be "denied a fair and impartial trial." People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007).
Finally, to the extent that any of the prosecutor's statements, question, or arguments could have been considered improper, they were minor enough not to affect defendant's substantial rights under a plain-error analysis. Carines, 460 Mich at 763. This is especially true here, where the trial court instructed the jury that the lawyers' statements and arguments were not evidence. "Jurors are presumed to follow the court's instructions, and instructions are presumed to cure most errors." Mullins, 322 Mich App at 173. Consequently, any error potentially committed by the prosecutor was cured by the instruction, and thus, did not prejudice defendant or necessitate reversal of his convictions. See Carines, 460 Mich at 763.
D. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant, in his Standard 4 brief, argues that his trial counsel committed errors amounting to constitutionally defective assistance of counsel, requiring reversal and a new trial. This argument is without merit.
Although defendant moved this Court to remand the case for a Ginther hearing, this Court denied defendant's motion for remand. People v Childs, unpublished order of the Court of Appeals, entered November 6, 2019 (Docket No. 346290). Because no Ginther hearing occurred, our review is limited to mistakes apparent on the record. People v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009). "The denial of effective assistance of counsel is a mixed question of fact and constitutional law, which are reviewed, respectively, for clear error and de novo." People v Schrauben, 314 Mich App 181, 189; 886 NW2d 173 (2016).
Defendant argues that his trial counsel was ineffective in a multitude of different ways. "Criminal defendants have a right to the effective assistance of counsel under the United States and Michigan Constitutions." Id. at 189-190. "However, effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise." Id. at 190. To receive a new trial based on ineffective assistance of counsel, a defendant must establish that counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012). "When reviewing defense counsel's performance, the reviewing court must first objectively determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." People v Jackson (On Reconsideration), 313 Mich App 409, 431; 884 NW2d 297 (2015) (cleaned up). "Next, the defendant must show that trial counsel's deficient performance prejudiced his defense—in other words, that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (cleaned up).
This Court will not find trial counsel to be ineffective where an objection would have been futile; nor will it second-guess matters of trial strategy. People v Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004). The defendant bears the burden of demonstrating both deficient performance and prejudice, and the defendant also necessarily bears the burden of establishing the factual predicate for his claim. People v Cooper, 309 Mich App 74, 80; 867 NW2d 452 (2015).
Defendant first argues that his trial counsel was ineffective for preventing defendant from testifying on his own behalf. "A defendant's right to testify in his own defense arises from the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution." 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. This Court presumes that defense "counsel's advice to defendant not to testify on his own behalf" is sound trial strategy. People v Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991).
Defendant argues that his trial counsel was ineffective for essentially tricking him into not testifying. Defendant argues that trial counsel reassured him that he would be able to testify right up until the moment when he announced in open court that defendant would not be testifying. According to defendant, before that point in the proceedings, his trial counsel repeatedly promised to help him prepare to testify, but never followed through on those promises. Then, at the last possible moment, trial counsel shocked defendant by saying that defendant should not testify in his own defense. Thus, defendant contends, he was essentially barred from testifying by his counsel.
Defendant waived this argument, however, when he engaged in a colloquy with his trial counsel while under oath. Defendant specifically stated that he was aware it was his own decision not to testify, he had not been persuaded by counsel to forgo this right, and that he was willingly and voluntarily choosing to remain silent. Waiver occurs when a defendant affirmatively approves of an issue before the trial court, only to argue on appeal that there was error. Jackson, 313 Mich App at 420. When waiver occurs, unlike forfeiture, any error is extinguished. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). Defendant waived this argument regarding his counsel's alleged ineffective assistance by stating under oath that it was his own personal decision not to testify and that he was aware he could testify even if trial counsel recommended otherwise. Id.
Next, defendant argues that trial counsel was ineffective for failing to call certain witnesses who would have provided beneficial testimony. Specifically, he claims that four separate witnesses could have testified that there was a plan to meet at the victim's house to help the victim move. "Decisions regarding what evidence to present and whether to call or question witnesses are presumed to be matters of trial strategy, and this Court will not substitute its judgment for that of counsel regarding matters of trial strategy." People v Muhammad, 326 Mich App 40, 66; 931 NW2d 20 (2018) (cleaned up). "Furthermore, [t]he failure to call witnesses only constitutes ineffective assistance of counsel if it deprives the defendant of a substantial defense." People v Anderson, 322 Mich App 622, 631; 912 NW2d 607 (2018) (cleaned up). "A substantial defense is one that might have made a difference in the outcome of the trial." Jackson, 313 Mich App at 432 (cleaned up).
This argument fails because defendant has not established the factual predicate for his claim. He asserts that the four witnesses would have provided beneficial testimony to his case. He does not provide any evidence, however, such as affidavits from those witnesses, regarding what their testimony would have been if called as witnesses. Because defendant bears the burden of establishing the factual predicate of his allegation of ineffective assistance of counsel, his failure to provide any evidence in support of this argument is fatal to his claim. See Cooper, 309 Mich App at 80.
Defendant next argues that trial counsel failed to admit evidence that the victim was not bleeding, or to object to evidence regarding blood that was not supported by photographic evidence. Defendant initially claims that trial counsel should have introduced evidence that the shirt worn by defendant when he was arrested, which he also wore during the altercation, did not have blood on it. Once again, defendant has failed to establish the factual predicate for this claim, as he is required to do. See Cooper, 309 Mich App at 80. In particular, defendant has not provided any evidence that he was arrested wearing a shirt with no blood on it. Moreover, because defendant was not arrested at the scene of the crime, he also would have had to provide proof that he did not change his shirt before being arrested. Additionally, even after all of that, defendant also would have had to present proof that he was not wearing a coat over his shirt during the fight, especially considering that the fight happened in early January. Considering the lack of a factual predicate for this claim, defendant has not provided any grounds for reversal. Id. Moreover, he has not provided any support for an allegation that evidence of the shirt would have been probative of his innocence, considering the possibilities that he was wearing a coat or had changed before being arrested. Thus, in addition to the lack of a factual predicate, defendant has not provided any argument that trial counsel's failure to introduce evidence of the shirt he was wearing when arrested denied him a substantial defense. See Jackson, 313 Mich App at 432.
Defendant next argues that trial counsel was ineffective for failing to object to the admission of evidence that blood was present in the house, on the victim's shirt, and coming from the victim's mouth. Defendant contends that the objection would have been sustained because there were no photographs of the alleged blood. Defendant has not cited any law to suggest that testimony regarding a fact is not admissible where the same fact could have been supported by photographs, but was not. Deputy Scruggs and the victim's grandmother both stated that they observed blood on the walls of the house. Furthermore, Deputy Scruggs testified that the victim was bleeding from his mouth and had blood on his shirt. The fact that there were not photographs of that blood does not somehow render the witnesses' testimony inadmissible. Lay witnesses are permitted to testify about their "direct physical observations" and the "opinions they form as a result" of those observations. People v Hanna, 223 Mich App 466, 475; 567 NW2d 12 (1997). Failing to advance a meritless argument does not constitute ineffective assistance of counsel. Ericksen, 288 Mich App at 201.
Defendant also argues that trial counsel was ineffective for failing to object to references to a gun in the 911 recording and in the victim's written statement to police. Defendant argues that any and all evidence of the presence of a gun during the commission of a crime was inadmissible because the district court refused to bind over the charge of possession of a firearm during the commission of a felony (felony-firearm). Defendant is correct that the district court refused to bind over the felony-firearm charge, finding that there was not probable cause that a gun was involved in the crime. Defendant has not cited any law, however, that would support a finding that evidence of the gun was rendered inadmissible by that decision of the district court. Indeed, the prosecutor was permitted to cross-examine the victim based on his prior inconsistent statements when he denied at trial that a gun was present during the assault. MRE 613(a); MRE 607. The 911 call was admissible under the excited-utterance exception to the hearsay rule. MRE 803(2). Deputy Scruggs's testimony also reflected the victim's statement that one of the assailants had a gun on the night of the crime, and that evidence also was admissible. Consequently, any objection to the evidence regarding the presence of a gun would not have been successful, and failing to advance a meritless argument does not constitute ineffective assistance of counsel. Ericksen, 288 Mich App at 201.
Next, defendant argues that trial counsel should have objected to the prosecutor's opening statement and closing argument. In support of that argument, defendant once again cites to the facts alleged in his argument regarding prosecutorial error. Because none of those arguments had merit, and indeed, many relied on statements by the prosecutor that were not made to defendant's jury, defendant's claim of ineffective assistance of counsel must also fail because any objection would have been overruled. Id.
Lastly, defendant contends that even if any single error was not sufficient to warrant relief, the cumulative effect of the errors necessitated reversal. "It is true that the cumulative effect of several errors can constitute sufficient prejudice to warrant reversal where the prejudice of any one error would not." People v LeBlanc, 465 Mich 575, 591; 640 NW2d 246 (2002). "However, in this case we have found no specific errors in trial counsel's performance. Thus, there are no individual errors that can be aggregated to form a cumulative effect." People v Unger, 278 Mich App 210, 258; 749 NW2d 272 (2008). Consequently, defendant's argument regarding cumulative errors is also without merit. Id.
E. SENTENCING ISSUES
Defendant argues that he is entitled to be resentenced because the prosecutor failed to properly seek a fourth-offense-habitual-sentence enhancement. In addition, defendant argues that the trial court miscalculated the minimum-sentencing-guidelines range, abused its discretion by ordering defendant to serve consecutive sentences for first-degree home invasion and AWIGBH, and ordered defendant to pay an unconstitutional tax.
To the extent appropriate, "[t]his issue is reviewed de novo as a question of law because it involves the interpretation and application of statutory provisions and court rules." People v Head, 323 Mich App 526, 542; 917 NW2d 752 (2018). For preserved issues "[u]nder the sentencing guidelines, the circuit court's factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence." People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). "Clear error is present when the reviewing court is left with a definite and firm conviction that an error occurred." People v McChester, 310 Mich App 354, 358; 873 NW2d 646 (2015) (cleaned up). "Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo." Hardy, 494 Mich at 438. When the issue is preserved, "whether a trial court may impose consecutive sentences is a question of statutory interpretation, which is reviewed de novo." People v Clark, 315 Mich App 219, 224; 888 NW2d 309 (2016). Further, "the decision to impose a consecutive sentence when not mandated by statute is reviewable for an abuse of discretion." People v Norfleet, 317 Mich App 649, 664; 897 NW2d 195 (2016). "We review de novo constitutional challenges and questions of statutory interpretation." People v Hrlic, 277 Mich App 260, 262; 744 NW2d 221 (2007) (citations omitted). The record is clear that all of defendant's sentencing challenges are preserved, but for defendant's challenge to the payment of the alleged unconstitutional tax. We review unpreserved sentencing issues for plain error. People v Foster, 319 Mich App 365, 371; 901 NW2d 127 (2017).
1. HABITUAL-OFFENDER NOTICE
Defendant argues that the trial court was not permitted to sentence him as a fourth-offense habitual offender because the prosecutor violated MCL 769.13. Under that statute, a prosecutor must file a written notice of intent to seek a sentence enhancement "within 21 days after the defendant's arraignment on the information charging the underlying offense or, if arraignment is waived, within 21 days after the filing of the information charging the underlying offense." MCL 769.13(1); see also MCR 6.112(F). The prosecutor must also serve the written notice on defendant or his counsel within that same time period, and must file a proof of service with the trial court. MCL 769.13(2). "The purpose of the notice requirement is to provide the accused with notice, at an early stage in the proceedings, of the potential consequences should the accused be convicted of the underlying offense." Head, 323 Mich App at 543 (cleaned up).
Because defendant waived the arraignment in this case, the 21-day period began to run when the prosecutor filed the information. MCL 769.13(1). The prosecutor filed the information charging defendant with first-degree home invasion, AWIGBH, and assault and battery on February 14, 2018. Therefore, for the purposes of MCL 769.13(1) and (2), the prosecutor had until March 7, 2018, to both file the notice of intent with the trial court and to serve it on defendant. The prosecutor filed the notice of intent to seek a sentence enhancement with the trial court on February 12, 2018. The notice of intent indicated that defendant would be subject to a 25-year minimum sentence if he were convicted of AWIGBH, and listed all of defendant's prior convictions. The prosecutor served the notice on defendant's trial counsel on February 16, 2018, and filed the proof of service with the trial court later that same day. At the sentencing hearing, defendant's trial counsel stated on the record that he had received the notice of intent to seek the habitual-offender sentence enhancement. The prosecutor clearly complied with MCL 769.13(1) and (2), and defendant's argument is without merit. See Head, 323 Mich App at 542-543.
Nonetheless, defendant focuses his argument on the word "after" in the statutory language. MCL 769.13(1). Specifically, defendant argues that a notice of intent must be filed with the trial court after the general information charging the crimes. Because the prosecutor filed the notice of intent in this case before the general information, defendant reasons that the prosecutor violated the statute. When engaging in statutory interpretation, the goal "is to discern and give effect to the intent of the Legislature." People v Williams, 491 Mich 164, 172; 814 NW2d 270 (2012) (cleaned up). That goal is achieved "by reviewing the words of a statute as they have been used by the Legislature." Id. "When a statute's language is clear and unambiguous, this Court will enforce that statute as written." Id. "This Court must give effect to every word, phrase, and clause and avoid an interpretation that would render any part of the statute surplusage or nugatory." People v Cunningham, 496 Mich 145, 154; 852 NW2d 118 (2014) (cleaned up).
As relevant to this case, where the arraignment was waived, MCL 769.13(1) provides that the prosecutor is permitted to "seek to enhance the sentence of the defendant . . . by filing a written notice of his or her intent to do so . . . within 21 days after the filing of the information charging the underlying offense." (Emphasis added). By focusing on the word "after," defendant has misconstrued the intent expressed by the plain and unambiguous language of the statute. Specifically, the word "after" is not being used to indicate that the notice of intent must be filed after the general information. Instead, it is part of the phrase "within 21 days after," which sets the deadline for the notice of intent to be filed. Focusing solely on the word "after," without considering its context, fails to "give effect to every word, phrase, and clause" of a statute. Cunningham, 496 Mich at 154 (cleaned up). So long as the prosecutor filed the notice of intent before March 7, 2018—21 days after the general information was filed—the prosecutor complied with the statute. In this case, the prosecutor filed the notice of intent on February 12, 2018, which plainly complies with MCL 769.13(1). Consequently, defendant's argument is without merit.
2. CALCULATION OF OFFENSE VARIABLES
Defendant next challenges the scoring of several offense variables (OVs) for his AWIGBH sentence, asserting that the minimum-sentencing-guidelines range should have been 34 to 134 months, instead of 38 to 152 months. Defendant's argument is without merit.
In sentencing defendant for the AWIGBH conviction, the trial court calculated defendant's total OV score at 70 points, placing him in OV-Level V for scores between 50 and 74 points. MCL 777.65. On appeal, defendant contends that OV 3 should have been scored at five points instead of 10 points, OV 4 should have been scored at zero points instead of 10 points, and OV 9 should have been scored at zero points instead of 10 points. Because a defendant is only entitled to resentencing where an improper OV score affects the guidelines range, People v Francisco, 474 Mich 82, 92; 711 NW2d 44 (2006), defendant must be successful on all of his challenges to warrant resentencing. Thus, if only one of his OV-score challenges lacks merit, he is not entitled to be resentenced because his guidelines range will not change absent a reduction of 25 points. Id.; MCL 777.65.
"When challenged, a sentencing factor need only be proved by a preponderance of the evidence." People v Earl, 297 Mich App 104, 109; 822 NW2d 271 (2012). "Offense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable." People v McGraw, 484 Mich 120, 133; 771 NW2d 655 (2009). "When calculating the sentencing guidelines, a court may consider all record evidence, including the contents of a PSIR, plea admissions, and testimony presented at a preliminary examination." McChester, 310 Mich App at 358. "The trial court may rely on reasonable inferences arising from the record evidence to sustain the scoring of an offense variable." Earl, 297 Mich App at 109.
Defendant first challenges his score of 10 points for OV 3, arguing that it should have been scored at five points. MCL 777.33 governs the assessment of points for OV 3, and it provides that a trial court must assess 10 points when "[b]odily injury requiring medical treatment occurred to a victim." MCL 777.33(1)(d). The statute directs a trial court to assess five points when "[b]odily injury not requiring medical treatment occurred to a victim." MCL 777.33(1)(d). If "[n]o physical injury occurred to a victim," a trial court must assess zero points for OV 3. MCL 777.33(1)(f). For purposes of OV 3, a bodily injury "encompasses anything that the victim would, under the circumstances, perceive as some unwanted physically damaging consequence." People v McDonald, 293 Mich App 292, 298; 811 NW2d 507 (2011). An "injury requiring medical treatment" refers to "the necessity for treatment and not the victim's success in obtaining treatment." MCL 777.33(3).
In this case, the victim testified that he did not seek medical treatment for his injuries. The photographs admitted into evidence, however, showed that the victim had significant bruising and swelling on his head and was bleeding from his mouth. The victim suffered redness and swelling above his left eye, and a large knot with redness near his right temple. In light of the photographs and testimony regarding the victim's physical state after the assault, the trial court was well-supported in finding, by a preponderance of the evidence, that the victim suffered "bodily injury requiring medical treatment." MCL 777.33(1)(d). Although the victim did not seek medical treatment for his injuries, it was sufficiently clear from the evidence provided to the trial court that the injuries suffered by the victim here warranted medical treatment, even if they never sought or obtained such treatment.
Defendant next challenges the score of 10 points for OV 4. Under MCL 777.34(1), OV 4 is properly scored at 10 points when "[s]erious psychological injury requiring professional treatment occurred to a victim." MCL 777.34(1)(a). "In making this determination, the fact that treatment has not been sought is not conclusive." MCL 777.34(2). "We have upheld a trial court's assessment of 10 points for OV 4 when the victim suffered personality changes, anger, fright, or feelings of being hurt, unsafe, or violated." Schrauben, 314 Mich App at 197 (cleaned up). The trial court is also permitted to rely on the victim's demeanor during trial to determine whether the victim suffered a psychological injury. Id.
In the present case, the trial court noted during sentencing that the victim's demeanor on the witness stand suggested that he suffered a psychological injury. Further, in the PSIR, the victim stated that he had recurring nightmares and regularly thought about the assault. In considering that evidence, the trial court did not clearly err by inferring that the victim had suffered a "serious psychological injury." MCL 777.34(1)(a). The victim's statement that he suffered from recurring nightmares about the assault and thought about it often amounted to an "expression of fearfulness," which this Court has held to be sufficient to score OV 4 at 10 points. Earl, 297 Mich App at 109. Further, having not been present at the trial, this Court must defer to the trial court's assessment of the victim's demeanor when testifying, which the trial court was permitted to consider. Schrauben, 314 Mich App at 197. Moreover, under MCL 777.34(2), the trial court's decision to score OV 4 at 10 points is not erroneous simply because there was no evidence that the victim actually sought or received "professional treatment." Therefore, the trial court did not err in finding that a preponderance of the evidence supported scoring OV 4 at 10 points. MCL 777.34(1)(a).
Next, defendant challenges the trial court's decision to score OV 9 at 10 points. This offense variable addresses the number of victims. MCL 777.39(1). A score of 10 points is warranted when "[t]here were 2 to 9 victims who were placed in danger of physical injury or death." MCL 777.39(1)(c). The trial court is required to "[c]ount each person who was placed in danger of physical injury or loss of life or property as a victim." Furthermore, "[p]oints assessed under OV 9 must be based solely on the defendant's conduct during the sentencing offense." People v Rodriguez, 327 Mich App 573, 581-582; 935 NW2d 51 (2019). Even where only one person was assaulted or robbed, a score of 10 points for OV 4 may be warranted where other people were in close proximity to the crime. Id. at 582.
Here, defendant argues that there was only victim of his AWIGBH conviction, thereby undermining the score of 10 points for OV 4. The record reflects, however, that the victim's grandmother was nearby when the assault occurred. Indeed, she testified that she observed the fight within her home and even attempted to pull defendant and his cohorts off of her grandson. In the 911 recording, which was admitted as evidence, she told the operator that she saw her grandson being assaulted in her own living room. Therefore, the trial court properly considered the grandmother as a victim because she was in close proximity to the crime. MCL 777.39(2)(b); Id. Because there were two victims of defendant's commission of AWIGBH, the trial court did not err in scoring 10 points for OV 4. MCL 777.39(1)(c).
The trial court properly scored OVs 3, 4, and 9, and defendant is not entitled to resentencing.
3. CONSECUTIVE SENTENCES
Defendant next argues that the trial court abused its discretion by sentencing him to serve his sentences for AWIGBH and first-degree home invasion consecutively. "In Michigan, concurrent sentencing is the norm, and a consecutive sentence may be imposed only if specifically authorized by statute." People v DeLeon, 317 Mich App 714, 721; 895 NW2d 577 (2016) (cleaned up). Such a statute exists for first-degree home invasion convictions: "The court may order a term of imprisonment imposed for home invasion in the first degree to be served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction." MCL 750.110a(8). That statute's "use of the word 'may' makes clear that the decision is a matter left to the discretion of the trial court." Buie, 491 Mich at 319-320 (cleaned up).
"Although consecutive sentencing lengthens the total period of imprisonment, it does not increase the penalty for any specific offense." DeLeon, 317 Mich App at 726. Therefore, "the decision to impose a consecutive sentence when not mandated by statute is reviewable for an abuse of discretion." Norfleet, 317 Mich App at 664. Consequently, "trial courts imposing one or more discretionary consecutive sentences are required to articulate on the record the reasons for each consecutive sentence imposed." Id. at 654. When ordering consecutive sentences, the trial court is required to "give particularized reasons—with reference to the specific offenses and the defendant." Id. at 666. The trial court is not permitted to speak "only in general terms, stating that it took into account defendant's 'background, his history, [and] the nature of the offenses involved.' " Id.
The trial court specifically found that consecutive sentencing with regard to the convictions for home invasion and AWIGBH was warranted in light of defendant's "longstanding criminal history, including serial violations of parole and increasingly aggressive behavior." Specifically, the trial court noted that defendant had a significant criminal history, which involved repeated violations of parole. Indeed, the trial court considered that, at the time defendant committed the crimes for which he was being sentenced, he was on absconder status for his parole. The trial court also noted that the crime committed was egregious, citing that it was an "attack," an "invasion of a home," was "very serious and grave," and involved "predatory conduct." The trial court expressed concern that defendant's criminal behavior was escalating as time progressed, becoming increasingly assaultive and aggressive. The trial court also stated that defendant's behavior was "beyond the realm of decency in our society." As required by Norfleet, 317 Mich App at 666, the trial court did not speak generally, but provided particularized reasons, and referenced defendant and the specific crimes of which he was convicted. Thus, the trial court did not abuse its discretion in ordering defendant to serve his sentences consecutively. Id.
4. UNCONSTITUTIONAL TAX
Finally, defendant argues that the trial court relied on an unconstitutional statute, MCL 769.1k, to impose the $500 fee as part of his sentence. Defendant makes the same argument that was made in People v Cameron, 319 Mich App 215; 900 NW2d 658 (2017). As defendant acknowledges, we are bound by the decision in Cameron, in which the panel ruled:
MCL 769.1k(1)(b)(iii) is a revenue-generating measure, and the courts forcibly impose the assessment against unwilling individuals. Therefore, it is a tax rather than a governmental fee. Although the statute does not expressly state that it imposes a tax, the statute is neither obscure nor deceitful, and therefore, it does not run afoul of the Distinct Statement Clause of Michigan's Constitution. Finally, because a trial court must establish a factual basis for its assessment of costs to ensure that the costs imposed are reasonably related to those incurred by the court in cases of the same nature, the legislative delegation to the trial court to impose and collect the tax contains sufficient guidance and parameters so that it does not run afoul of the separation-of-powers provision of Const 1963, art 3 § 2. [Id. at 236.]We are bound by the decision in Cameron. MCR 7.215(J)(1). Therefore, defendant's argument on appeal is without merit.
Affirmed.
/s/ Michael J. Riordan
/s/ Karen M. Fort Hood
/s/ Brock A. Swartzle