PEOPLE OF MI V PATRICK RICHARD KABBASH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 8, 2007
Plaintiff-Appellee,
V
No. 266209
Ingham Circuit Court
LC No. 05-000296-FH
PATRICK RICHARD KABBASH,
Defendant-Appellant.
Before: Servitto, P.J., and Talbot and Schuette, JJ.
PER CURIAM.
Defendant was convicted by a jury of assault with a dangerous weapon, MCL 750.82.
The trial court sentenced defendant to serve sixty months’ probation, beginning with eight
months’ jail incarceration. Defendant appeals as of right. We affirm. This case is being decided
without oral argument in accordance with MCR 7.214(E).
This case arises from a domestic incident. According to the incident report, defendant
and complainant, husband and wife, were arguing when defendant, while heavily intoxicated,
retrieved a large kitchen knife, grabbed complainant by the hair, chased complainant, then kicked
holes in the wall and door when complainant secluded herself in the bedroom.
Defendant admitted to a misunderstanding, but denied the use of a knife. Defendant
stated that he left the residence in the morning to go to work, returned at noon, and then after
waiting for 15 minutes for complainant to open the door, went to visit a friend and have drinks,
where he was arrested at 3:00 or 3:30 that afternoon. Asked on cross-examination to name the
friend, defendant was unable to do so.
I. Evidentiary Challenges
When reviewing the sufficiency of evidence in a criminal case, a reviewing court must
view the evidence of record in the light most favorable to the prosecution to determine whether a
rational trier of fact could find that each element of the crime was proved beyond a reasonable
doubt. People v Herndon, 246 Mich App 371, 415; 633 NW2d 376 (2001). Review is de novo.
Id. However, a trial court’s decision on a motion for a new trial predicated on the great weight
of the evidence is reviewed for an abuse of discretion. People v Lemmon, 456 Mich 625, 648 n
27; 576 NW2d 129 (1998).
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Conviction of assault with a dangerous weapon requires proof that the actor: (1)
assaulted the victim, (2) with a dangerous weapon, and (3) with intent to injure the victim, or
place the victim in reasonable apprehension of an immediate battery. People v Davis, 216 Mich
App 47, 53; 549 NW2d 1 (1996). Defendant raises his evidentiary challenges in connection with
the third element only.
Complainant testified that she had many fights with defendant before this incident, and
that on the occasion in question she expected another because defendant was drinking. She
asserted that defendant grabbed a knife in the kitchen, elaborating, “he just have the knife and I
get like really scary . . . .”. According to complainant, she ran up some stairs, during which she
heard defendant say “‘I’m going to kill you today.’” Complainant reported that defendant said
that this would be her last day to live, and that she believed him, “because I see the knife in his
hand, I never see it before,” and thus was “[v]ery afraid.” Complainant identified the knife used
by defendant, and, when asked if defendant had hit her with it, stated, “No, he try to.”
Complainant stated that she locked herself in a room, but defendant continued to say he was
going to kill her. Complainant identified photographs showing how defendant was “just trying
to push with the knife in the door” and “pushed the bathroom wall.”
Complainant called 911. A recording of that call was played to the jury, and in it the
victim reported, “he just come in the house and broke the door today and told me, I have to kill
you today, he have a knife in his hand.” A police officer responding to the scene testified that
the main course of the incident occurred in the upstairs bedroom, and that “[t]here was quite a bit
of damage to one particular door, including holes that appear to have been made by a knife.”
Defendant argues that he had no ability to assault complainant, and that she had no reason
to fear immediate danger, because he was not in a position to throw the knife, and because
testimony indicated that he did not always have clear access to her. We disagree. Defendant
cites no authority for the proposition that an armed person cannot, as a matter of fact or law,
assault a person without unimpeded access to that person.
“An actor’s intent may be inferred from all of the facts and circumstances, and because of
the difficulty of proving an actor’s state of mind, minimal circumstantial evidence is sufficient.”
People v Fetterley, 229 Mich App 511, 517-518; 583 NW2d 199 (1998) (citations omitted). In
the instant case, the evidence that defendant gave chase when complainant ran from him,
explicitly and repeatedly threatened to kill her, and attacked the door behind which she took
refuge, supported the conclusion that defendant intended to harm the complainant, or cause her
to suffer reasonable apprehension of an immediate battery.
At the close of the prosecutor’s proofs, defense counsel protested that there were some
inconsistencies in the testimony, impliedly asking the court to conclude that the prosecution’s
theory of the case was against the great weight of the evidence. But that cursory argument, made
without specifying the alleged inconsistencies, did not persuade the trial court, and on appeal
defendant presents no argument regarding inconsistencies in the testimony. Accordingly, the
trial court properly refrained from taking the case away from the jury at trial on the basis of its
own credibility determinations, see Lemmon, supra at 627, 639, and defendant gives this Court
no reason to revisit the question on appeal.
For these reasons, defendant’s evidentiary challenges must fail.
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II. Assistance of Counsel
“In reviewing a defendant’s claim of ineffective assistance of counsel, the reviewing
court is to determine (1) whether counsel’s performance was objectively unreasonable and (2)
whether the defendant was prejudiced by counsel’s defective performance.” People v Rockey,
237 Mich App 74, 76; 601 NW2d 887 (1999).
Defendant asserts that defense counsel was ineffective for failing to object to use of the
911 recording, and emphasizes that the jury heard it four times. Notably, counsel did initially
object to introduction of that recording, on the grounds that it was produced in violation of
discovery requirements, and that its potential for prejudice outweighed its probative value. On
appeal, defendant concedes that the recording was admissible, but argues that defense counsel
should have endeavored to avoid having the recording repeatedly played for the jury. However,
defense counsel himself played the tape during closing argument, to demonstrate the lack of
responses to the operator’s inquiries whether the caller needed the police, an ambulance, or the
fire department, whether the assailant was armed, and whether the caller had been injured. A
defendant raising a claim of ineffective assistance of counsel must overcome a strong
presumption that counsel’s tactics were matters of sound trial strategy. People v Henry, 239
Mich App 140, 146; 607 NW2d 767 (1999). Because the prosecutor and defense counsel each
separately chose to play the tape, the question becomes whether defendant suffered some great
disadvantage from having the jury hear it four times instead of two. Because the defense
ultimately saw some advantage in also using the recording, we cannot conclude that defendant
suffered serious prejudice from the cumulative presentation of that piece of evidence.
Defendant next argues that defense counsel was ineffective for failing to object to the
following portion of the prosecutor’s closing argument:
You have to judge credibility. . . . And I would ask you today . . . who
you believe is lying, and I want you to think or focus now on [defendant]’s
testimony. You heard that he said he was at another person’s house . . . . He
didn’t know the[] name of this friend. Apparently, he knows this friend for at
least a month or a period of time but can’t remember her name. He never could
remember the name. But I think more importantly . . . , this person would have
been important. Who is this person? If this person came here to testify, they’d be
able to tell you what [defendant] did when he came over there. That’s his defense
. . . but he can’t even remember her name.
Defendant cites People v Holland, 179 Mich App 184, 190; 445 NW2d 206 (1989), for
the proposition that the prosecutor many not comment on a defendant’s failure to produce an
alibi witness. But “once the defendant presents such a defense, the prosecution is permitted to
attack the alibi by commenting on the weakness of the alibi testimony.” Id. at 191. To the extent
that defendant testified that he was elsewhere at the time of the alleged incident, he opened the
door to prosecutorial argument exposing the weaknesses of his position. Moreover, we think it
incongruous for defendant to have failed to provide this potential witness’s name when asked at
trial, but then to argue on appeal that defense counsel was ineffective for failing to produce that
unidentified person in the flesh. Even accepting defendant’s account of his time spent elsewhere,
the possibility exists that events happened as complainant said they did, during the time in the
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early afternoon that defendant admitted being at the house. For these reasons, we conclude that
defense counsel missed no opportunity to produce a valuable alibi witness.
Defendant additionally asserts that defense counsel was ineffective for failing to shepherd
defendant to completion of an abortive attempt to plead guilty to operating under the influence of
liquor as an alternative to trial on the more serious charge of assault with a dangerous weapon.
Defendant concedes that at trial he “could or would not state facts to support a guilty plea,” but
argues on appeal that he could have pleaded no contest. Defendant, who is not a citizen of the
United States, additionally states that a successful plea would have spared him from the risk of
deportation. However, the deal actually presented was that defendant would, in connection with
his plea to OUIL, provide the facts attendant to the assault charge as well. The prosecutor
described “a legal fiction” to accommodate defendant’s “deportation issues.” Because the OUIL
charge was offered as an alternative means of establishing the facts behind the assault charge,
defendant’s inability or refusal to provide the facts defeated the deal. Defendant does not allege
that defense counsel failed to apprise him of his opportunities, potential consequences or to act in
furtherance of any decision defendant made. “A party may not merely state a position and then
leave it to this Court to discover and rationalize the basis for the claim.” People v Mackle, 241
Mich App 583, 604 n 4; 617 NW2d 339 (2000). For these reasons, we cannot conclude that
defense counsel was ineffective in handling that aspect of the proceedings.
Affirmed.
/s/ Deborah A. Servitto
/s/ Michael J. Talbot
/s/ Bill Schuette
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