PEOPLE OF MI V ELVIO FLORES III
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 23, 2007
Plaintiff-Appellee,
v
No. 270117
Ottawa Circuit Court
LC No. 05-028987-FH
ELVIO FLORES, III,
Defendant-Appellant.
Before: Hoekstra, P.J., and Sawyer and Murray, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of first-degree home invasion, MCL
750.110a(2), and assault with intent to do great bodily harm less than murder, MCL 750.84. The
trial court sentenced defendant to 85 to 240 months’ imprisonment for his home invasion
conviction and to a concurrent term of 17 to 120 months’ imprisonment for his assault
conviction. The trial court also ordered defendant to pay restitution in the amount of $2,944.48.
We affirm.
On March 6, 2005, Areceli and Carlos Olivo were at their Holland apartment with their
friends Joel and Stephanie Jimenez, Edgar Salinas, Joshua Vallejo, and Raul Guzman. At
approximately 4:00 a.m., five or six men, who were carrying sticks, golf clubs, and bats, forced
their way into the apartment. Two of the men attacked Carlos. One man repeatedly hit Carlos
with a metal pan while the other broke glass bottles against Carlos’s head. During the attack,
one man told Carlos “don’t be f***ing with my cousin.” After the men left the apartment,
Carlos was transported to the hospital where he was treated for his injuries.
Defendant first argues that the prosecutor failed to present sufficient evidence to support
his convictions. Specifically, defendant argues that the prosecutor failed to prove his identity
beyond a reasonable doubt and, therefore, the evidence was insufficient for a reasonable trier of
fact to conclude that he committed the crimes of which he was convicted.
In reviewing a challenge to the sufficiency of the evidence, we must determine whether,
viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could
conclude that the prosecution proved all the essential elements of the crime beyond a reasonable
doubt. People v Hicks, 259 Mich App 518, 522; 675 NW2d 599 (2003). We must draw all
reasonable inferences and resolve credibility conflicts in favor of the jury verdict. People v
Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
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To state the obvious, identity is an element in every criminal prosecution, People v
Oliphant, 399 Mich 472, 489; 250 NW2d 443 (1976), and the prosecution must identify the
accused as the person who committed the offense. People v Kern, 6 Mich App 406, 409; 149
NW2d 216 (1967). “[P]ositive identification by witnesses may be sufficient to support a
conviction of a crime,” People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000), or a
defendant’s identity may be proved by circumstantial evidence. “The prosecutor is not required
to present direct evidence linking the defendant to the crime.” People v Saunders, 189 Mich App
494, 495; 473 NW2d 755 (1991). “Circumstantial evidence and reasonable inferences from that
evidence can constitute satisfactory proof of the elements of a crime.” People v Carines, 460
Mich 750, 757; 597 NW2d 130 (1999) (citation omitted).
In this case, several witnesses identified defendant as the perpetrator of the crimes. At
trial, Areceli testified that defendant entered the apartment through the front door. She identified
defendant as the man who assaulted Carlos with the metal pan. Similarly, Stephanie testified
that defendant entered the apartment through the front door and “basically attacked Carlos.”
Carlos testified at trial that defendant looked like the man who assaulted him. Joel also testified
that defendant looked like the man who assaulted Carlos. Furthermore, trial testimony revealed
that Areceli positively identified defendant as one of the perpetrators in a photographic lineup
that was conducted before trial. This evidence was sufficient to prove that defendant committed
the offenses of which he was convicted. “The credibility of identification testimony is a question
for the trier of fact that we do not resolve anew.” Davis, supra at 700.
Furthermore, viewed in the light most favorable to the prosecution, the circumstantial
evidence in this case was sufficient to prove that defendant committed the crimes of which he
was convicted. The trial testimony revealed that, on the night of the incident, defendant’s
brother, Joselito, met Salinas, Vallejo, and Guzman at a party in Fennville. After the party, Jeri
Fitts and her friend Shaunte agreed to drive Joselito, Salinas, Vallejo, and Guzman to Holland.
On the way there, a fight erupted between Salinas and Joselito. Joselito exited the car. He
threatened to call his brother and his cousins and have them kill Salinas and his friends, and he in
fact made a telephone call at that time. Fitts drove away, leaving Joselito on the side of the road.
She drove Salinas, Vallejo, and Guzman to the Olivos’ apartment.
In the meantime, defendant learned about the altercation that occurred between Salinas
and Joselito. He gathered a group of men, some of whom were carrying golf clubs or bats, and
went to look for Salinas, Vallejo, and Guzman. He contacted Fitts on Shaunte’s cellular
telephone and threatened to kill her family if she did not show him where she dropped off
Salinas, Vallejo, and Guzman. Fitts met defendant at a restaurant, where she agreed to show him
the location. She also testified that defendant was upset, that eight or nine other individuals were
with him, and that at least one man was carrying a golf club or bat. She drove defendant and the
man who was carrying the golf club or bat to the Olivos’ apartment complex. When they
arrived, defendant instructed her to knock on doors until she found the correct apartment. She
found the Olivos’ apartment and, as she was leaving, she observed defendant and the other men
pushing on the outside of the door, attempting to gain entry into the apartment. Vallejo testified
at trial that, before the men forced their way into the apartment, they asked for “Raul” or
“Edgar,” the names of two of the individuals who had been involved in the altercation with
Joselito. Once the men gained entry into the apartment, they assaulted the individuals inside of
the apartment, with what was described as golf clubs, bats, and sticks. Based upon this evidence,
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it could properly be inferred that defendant was in fact the perpetrator of the offenses. Thus, for
this reason as well, the evidence was sufficient to sustain defendant’s convictions.
Defendant next contends that the trial court erred in scoring offense variable (“OV”) 14.
Defendant preserved this issue by objecting to the scoring of OV 14 at the sentencing hearing.
MCL 769.34(10); People v Kimble, 470 Mich 305, 310-311; 684 NW2d 669 (2004).
In calculating a sentencing guidelines range, a trial court must assess ten points under OV
14 if “[t]he offender was a leader in a multiple offender situation.” MCL 777.44(1)(a). In
determining whether an offender was a leader in a multiple offender situation, we must review
the entire criminal transaction. MCL 777.44(2)(a); People v Apgar, 264 Mich App 321, 330;
690 NW2d 312 (2004). “A sentencing court has discretion in determining the number of points
to be scored, provided that evidence of record adequately supports a particular score.” People v
Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002). “Scoring decisions for which there is
any evidence in support will be upheld.” Id. (citation omitted).
The record supported the trial court’s finding that defendant had a leadership role in this
multiple offender situation. The testimony presented at trial supports the conclusion that
defendant was upset about the altercation involving Joselito, and he gathered a group of men
with the intention of seeking revenge upon the other individuals who were involved in the
altercation. Nothing in the record suggests that anyone, other than defendant, spoke to Fitts
concerning Salinas, Vallejo, and Guzman’s whereabouts on the night of the incident. Further,
nothing suggests that anyone, other than defendant, orchestrated the retaliation effort against
them. Areceli testified that, when defendant entered the apartment, he started hitting everyone.
Stephanie testified that defendant initiated the attack against Carlos. Carlos testified that
defendant looked like “the guy who actually did the whole action.” Finally, Areceli testified
that, after the men attacked Carlos, defendant left the apartment first and the other men followed
him out the door. Thus, the record adequately supported the trial court’s scoring of OV 14, and
we affirm defendant’s sentences. People v Cox, 268 Mich App 440, 453-454; 709 NW2d 152
(2005). See also MCL 769.34(10).
Defendant next argues that defense counsel was ineffective for failing to file a motion to
suppress, challenging the legality of his arrest. We disagree.
Defendant did not move the trial court for an evidentiary hearing under People v Ginther,
390 Mich 436, 443-444; 212 NW2d 922 (1973), or for a new trial based on ineffective assistance
of counsel. Therefore, this issue is unpreserved. See People v Noble, 238 Mich App 647, 661;
608 NW2d 123 (1999). Our review of unpreserved claims of ineffective assistance of counsel is
limited to errors apparent on the record. Id. “To establish a claim of ineffective assistance of
counsel, a defendant must show that counsel’s performance fell below an objective standard of
reasonableness and that, but for defense counsel’s errors, there was a reasonable probability that
the result of the proceeding would have been different.” People v Knapp, 244 Mich App 361,
385; 624 NW2d 227 (2001).
Defendant asserts that he was subjected to an unlawful arrest because the police lured
him away from his home, under false pretenses, to effect the arrest. People v Kelly, 231 Mich
App 627, 633; 588 NW2d 480 (1998). Such an arrest would be illegal. Id. See also Hayes v
Florida, 470 US 811, 815; 105 S Ct 1643; 84 L Ed 2d 705 (1985). However, even assuming
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arguendo that defendant’s arrest was unlawful, the fact that defendant was subjected to an
unlawful arrest is not dispositive of defendant’s claim of ineffective assistance of counsel.
Where a defendant is subjected to an unlawful arrest, “the appropriate remedy is the suppression
of evidence derived as a result of the illegal arrest under the ‘fruit of the poisonous tree’
doctrine.” People v Spencley, 197 Mich App 505, 508; 495 NW2d 824 (1992), quoting Wong
Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963). “It is only when an
‘unlawful detention has been employed as a tool to directly procure any type of evidence from a
detainee’ that the evidence is suppressed under the exclusionary rule.” Kelly, supra at 634,
quoting People v Mallory, 421 Mich 229, 240-241; 243, n 8; 365 NW2d 673 (1984) (emphasis in
original).
In this case, defendant failed to establish that the police procured any information or
evidence as a result of the exploitation of the allegedly unlawful arrest. Id. at 634-635. Further,
nothing in the lower court record suggests that the prosecutor introduced any evidence at trial
that was procured as a result of the allegedly unlawful arrest. By failing to establish that any
evidence in this case would have been subject to exclusion under the fruit of the poisonous tree
doctrine, defendant failed to establish the factual predicate for his claim, People v Hoag, 460
Mich 1, 6; 594 NW2d 57 (1999), and failed to establish that a motion to suppress would not have
been futile in this case. It is well established that defense counsel is not ineffective for failing to
pursue a futile motion. People v Mack, 265 Mich App 122, 130; 695 NW2d 342 (2005); People
v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000). Thus, defendant clearly failed to
establish that the alleged illegality of the arrest affected the outcome of the trial or that “but for
defense counsel’s errors, there was a reasonable probability that the result of the proceeding
would have been different.” Knapp, supra at 385. Accordingly, defendant is not entitled to
relief on this claim of ineffective assistance of counsel.
Finally, defendant argues that defense counsel was ineffective for failing to investigate
and interview witnesses, failing to adequately prepare for trial, and failing to object to the
evidence submitted by the prosecution.
There are no errors apparent on the record. Defendant (1) failed to establish the identity
of any of the witnesses that defense counsel allegedly failed to interview and failed to establish
that their testimony would have benefited him had they been called to testify at trial; (2) failed to
present any facts to support his claim that defense counsel was ineffective for failing to
investigate and adequately prepare for trial; and (3) failed to specify what evidence was
objectionable at trial. Thus, he failed to establish the factual predicate for his claims. Hoag,
supra at 6. Furthermore, it is well established that, to prevail on a claim of ineffective assistance
of counsel, a defendant “must show the existence of a reasonable probability that, but for
counsel’s error, the result of the proceeding would have been different.” People v Carbin, 463
Mich 590, 600; 623 NW2d 884 (2001). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. quoting Strickland v Washington, 466 US 668, 694;
104 S Ct 2052; 80 L Ed 2d 674 (1984). Because defendant has not established the factual
predicate for his claims, there is no basis for a finding that defendant was prejudiced by defense
counsel’s alleged errors. “An appellant may not merely announce his position and leave it to this
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Court to discover and rationalize the basis for his claims . . . .” Kelly, supra at 640-641. Thus,
defendant is not entitled to relief on these claims of ineffective assistance of counsel.1
Affirmed.
/s/ Joel P. Hoekstra
/s/ David H. Sawyer
/s/ Christopher M. Murray
1
Finally, in his brief on appeal, defendant requests that this Court remand this case to the trial
court for an evidentiary hearing on his claims of ineffective assistance of counsel. Defendant’s
request is neither timely nor procedurally appropriate given that he has not supported his request
with an affidavit or offer of proof regarding the facts to be established at a hearing on remand.
See MCR 7.211; People v Bright, 126 Mich App 606, 610; 337 NW2d 596 (1983). Accordingly,
we find that an evidentiary hearing is unwarranted, and we deny defendant’s request for remand.
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