PEOPLE OF MI V BOBBY CALVIN MARSHALL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 5, 2004
Plaintiff-Appellee,
v
No. 247795
Macomb Circuit Court
LC No. 02-001868-FC
BOBBY CALVIN MARSHALL,
Defendant-Appellant.
Before: Borrello, P.J., and Murray and Fort Hood, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial conviction for assault with intent to rob
while armed, MCL 750.89, and felony-firearm, MCL 750.227b. We affirm. This appeal is being
decided without oral argument pursuant to MCR 7.214(E).
On appeal, defendant argues that he was denied the effective assistance of counsel where
his attorney failed to fully cross-examine a key witness with inconsistencies between her
preliminary examination and trial testimony. To establish an ineffective assistance of counsel
claim, defendant first must show that counsel’s performance was below an objective standard of
reasonableness under prevailing professional norms. People v Pickens, 446 Mich 298; 521
NW2d 797 (1994). The defendant must overcome a strong presumption that counsel’s actions
constituted sound trial strategy. Second, the defendant must show that there is a reasonable
probability that, but for counsel’s error, the result of the proceeding would have been different.
Id.
At the preliminary examination, the witness testified that she assumed that defendant
intended to rob the store. She stated that if defendant had asked for money, she would probably
have given it to him. She did not mention that defendant asked for the combination to the safe.
During cross-examination by defendant’s counsel at trial, the witness admitted that nothing was
taken from the store. She testified that defendant did not ask for the numbers to the safe. Rather,
he told her that was what he wanted, and she acknowledged that she did not give that information
in her prior statements. Counsel brought out inconsistencies between her preliminary
examination testimony and her trial testimony regarding the sequence of events. While counsel
could have specifically asked more questions about the preliminary examination testimony, the
witness explained the differences in her testimony, and there is no indication that more detailed
cross-examination would have affected the outcome of the case. Although the trial court erred in
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finding that the motion for new trial was untimely, it did not err in denying a new trial based on
ineffective assistance of counsel. Pickens, supra.
Defendant also argues that there was insufficient evidence of his intent to rob to support
the conviction. In determining whether sufficient evidence has been presented to sustain a
conviction, a reviewing court must view the evidence in a light most favorable to the prosecution
and determine whether any rational finder of fact could have found that the essential elements of
the crime were proven beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489
NW2d 748, amended 441 Mich 1201 (1992). “The standard of review is deferential: a
reviewing court is required to draw all reasonable inferences and make credibility choices in
support of the verdict.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
Where defendant came into a store at closing time, made a purchase, then turned a gun on
the employees and directed them to the back room and told one of them to give him the numbers
for the safe, a reasonable finder of fact could conclude beyond a reasonable doubt that defendant
intended to rob the store. Wolfe, supra.
Affirmed.
/s/ Stephen L. Borrello
/s/ Christopher M. Murray
/s/ Karen M. Fort Hood
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