PEOPLE OF MI V DANIER C CHIVERS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 20, 2002
Plaintiff-Appellee,
v
No. 236330
Wayne Circuit Court
LC No. 00-011281-01
DANIER C. CHIVERS,
Defendant-Appellant.
Before: Owens, P.J., and Murphy and Cavanagh, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial convictions of armed robbery, MCL
750.529, and possession of a firearm during the commission of a felony, MCL 750.227b. We
affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
At trial, complainant testified that he and two of his cousins stopped by defendant’s home
and inquired if defendant could obtain marijuana. At defendant’s direction complainant, his
cousins, and defendant drove to a house. Complainant testified that after they entered the house
defendant and three other persons pointed guns at them and forced them to lie on the floor, and
took jewelry, cash, car keys, and shoes. Complainant stated that he and his cousins were ordered
out of the house and made to lie down by a fence in an empty lot. Defendant and the other
armed men fled from the scene in complainant’s rental car. Complainant and his cousins flagged
down a police car and reported the incident. Complainant denied that he traded the rental car for
crack cocaine.
A police officer testified that he was on patrol when three individuals, one of whom was
complainant, flagged down his car and reported that they had been robbed. The three persons
were without shoes and looked frantic.
Georgetta Chivers, defendant’s mother, testified that complainant visited her home
frequently, and that they smoked marijuana together. Chivers testified that on the evening in
question defendant agreed to obtain crack cocaine for complainant and two other men. Chivers
indicated that defendant had obtained crack cocaine for complainant on a number of occasions.
Chivers testified that when defendant returned to the house he did not have a gun, jewelry, cash,
or the rental car in his possession.
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Defendant testified that complainant came to his home and asked for crack cocaine.
Defendant acknowledged that he had obtained crack cocaine for complainant on numerous
occasions. Defendant admitted that he purchased crack cocaine from a woman named Latanya
with complainant’s money, and kept part of the money for himself. Defendant testified that later
in the evening complainant traded the rental car to Latanya in exchange for crack cocaine.
Defendant denied that he robbed Poindexter.
The trial court convicted defendant of armed robbery and felony-firearm, but acquitted
him of carjacking, MCL 750.529a. The court accepted complainant’s testimony that defendant
directed him to drive to a house and that once there, defendant robbed him of jewelry, cash,
credit cards, car keys, and shoes at gunpoint. The court did not find defendant’s testimony that
he was no longer dealing drugs to be credible in light of defendant’s acknowledgment that he
agreed to procure drugs for complainant. The court acquitted defendant of carjacking on the
ground that no evidence established that defendant drove the car away from the scene.
At sentencing, defendant stated that when he testified at trial he did not relate the entirety
of the long history of narcotics transactions between himself and complainant at his counsel’s
suggestion. Defense counsel stated he believed the information was not germane to the charges,
and noted that defendant’s mother testified that complainant obtained drugs from defendant on a
number of occasions. The court concluded that the decision to omit testimony from defendant
regarding his history with complainant was trial strategy.
When reviewing a challenge to the sufficiency of the evidence in a bench trial, we view
the evidence presented in a light most favorable to the prosecution, and determine whether a
rational trier of fact could find that the essential elements of the crime were proven beyond a
reasonable doubt. The trier of fact may make reasonable inferences from evidence in the record,
but may not make inferences completely unsupported by any direct or circumstantial evidence.
People v Petrella, 424 Mich 221, 268-270, 275; 380 NW2d 11 (1985); People v Vaughn, 186
Mich App 376, 379-380; 465 NW2d 365 (1990).
In a bench trial, the trial court must make findings of fact and state separately its
conclusions of law. MCR 6.403. Findings are sufficient if it appears the trial court was aware of
the issues in the case and correctly applied the law. People v Smith, 211 Mich App 233, 235;
535 NW2d 248 (1995). We review a trial court’s findings of fact for clear error. MCR
2.613(C); People v Hermiz, 235 Mich App 248, 255; 597 NW2d 218 (1999). A finding is
considered to be clearly erroneous if, after a review of the entire record, we are left with the firm
and definite conviction that a mistake was made. People v Gistover, 189 Mich App 44, 46; 472
NW2d 27 (1991).
The elements of armed robbery are: (1) an assault; (2) a felonious taking of property
from the victim’s presence or person; (3) while the defendant is armed with a weapon described
in the statute. MCL 750.529; People v Allen, 201 Mich App 98, 100; 505 NW2d 869 (1993).
An assault is an attempt to commit a battery, or an unlawful act that places another person in
reasonable apprehension of receiving an immediate battery. People v Grant, 211 Mich App 200,
202; 535 NW2d 581 (1995). The elements of felony-firearm are: (1) the possession of a
firearm; (2) during the commission of, or the attempt to commit, a felony. MCL 750.227b;
People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999).
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Defendant argues that insufficient evidence was produced to support his conviction of
armed robbery. We disagree. Complainant testified that defendant pointed a gun at him and
took various items from his person, including cash, credit cards, car keys, and his shoes.
Complainant indicated that defendant’s actions made him fear for his life. The trial court, as the
finder of fact, was entitled to accept Poindexter’s testimony and to reject that given by defendant.
People v Marji, 180 Mich App 525, 542; 447 NW2d 835 (1989). Complainant’s testimony
established all the elements of armed robbery. See Grant, supra; Allen, supra. No authority
requires that a complainant’s testimony be corroborated by other testimony or physical evidence.
The evidence, considered in a light most favorable to the prosecution, was sufficient to support
defendant’s conviction of armed robbery and, by extension, his conviction of felony-firearm.
See Petrella, supra; Avant, supra.
To establish ineffective assistance of counsel, a defendant must show that counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms. Counsel must have made errors so serious that he was not performing as the “counsel”
guaranteed by the federal and state constitutions. US Const, Am VI; Const 1963, art 1, § 20.
Counsel’s deficient performance must have resulted in prejudice. To demonstrate the existence
of prejudice, a defendant must show a reasonable probability that but for counsel’s error, the
result of the proceedings would have been different. People v Carbin, 463 Mich 590, 599-600;
623 NW2d 884 (2001). Counsel is presumed to have afforded effective assistance, and a
defendant bears the burden of proving otherwise. People v Rockey, 237 Mich App 74, 76; 601
NW2d 887 (1999).
Defendant argues that his trial counsel rendered ineffective assistance by interfering with
his right to testify regarding his history of narcotics transactions with complainant, and that this
interference prevented him from placing all relevant facts before the court. We disagree.
Counsel indicated, and the trial court found, that counsel’s decision to urge defendant from
discussing his history of narcotics transactions with complainant was a matter of trial strategy.
We do not substitute our judgment for that of counsel on matters of trial strategy. People v Rice
(On Remand), 235 Mich App 429, 445; 597 NW2d 843 (1999). The fact that a strategy may not
have worked does not mandate a conclusion that the strategy constituted ineffective assistance of
counsel. People v Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996). The
trial court was also informed of the history between defendant and complainant via the testimony
of Georgetta Chivers. The trial court accepted complainant’s testimony regarding defendant’s
actions and found defendant guilty of armed robbery and felony-firearm. The evidence was
sufficient to support those convictions. See Petrella, supra. Defendant has not demonstrated
that counsel’s decision resulted in prejudice. See Carbin, supra.
Affirmed.
/s/ Donald S. Owens
/s/ William B. Murphy
/s/ Mark J. Cavanagh
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