PEOPLE OF MI V JAMES E ENGLE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 30, 1997
Plaintiff-Appellee,
v
No. 190614
Oakland Circuit Court
LC No. 95-138316
JAMES E. ENGLE,
Defendant-Appellant.
Before: Cavanagh, P.J., and Reilly and White, JJ.
PER CURIAM.
Defendant was convicted by a jury of felonious assault, MCL 750.82; MSA 28.277, and
pleaded guilty to being an habitual offender, second offense, MCL 769.10; MSA 28.1082. He was
sentenced to one year in prison and two years’ probation. In addition, defendant was ordered to pay
$600 in costs and $455 in restitution. Defendant now appeals as of right. We affirm the conviction, but
vacate the order to pay restitution.
I
Defendant first argues that the trial court erred in denying his motion for a new trial on the
ground that his conviction was against the great weight of the evidence. The decision to grant a new trial
is within the trial court’s discretion and will not be reversed absent an abuse of that discretion. People v
Legrone, 205 Mich App 77, 79; 517 NW2d 270 (1994). The standard for reviewing an abuse of
discretion is narrow; the result must have been so violative of fact and logic that it evidences a perversity
of will, a defiance of judgment, or an exercise of passion or bias. People v Woods, 200 Mich App
283, 288; 504 NW2d 24 (1993).
A new trial may be granted when the verdict is against the great weight of the evidence. People
v Herbert, 444 Mich 466, 475; 511 NW2d 654 (1993). A verdict may be vacated only when it does
not find reasonable support in the evidence, but is more likely attributed to causes outside the record,
such as passion, prejudice, sympathy, or some extraneous influence. People v DeLisle, 202 Mich App
658, 661; 509 NW2d 885 (1993).
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Defendant argues that his conviction was against the great weight of the evidence because the
only eyewitnesses to the event, Georgia Zion and Brent Hillier, were not credible. The trial court may
evaluate credibility in deciding a motion for new trial. People v Mechura, 205 Mich App 481, 484;
517 NW2d 797 (1994). However, a grant of new trial based upon the credibility of the witnesses must
be made with great caution and under a presumption against usurping the function of the jury. Herbert,
supra at 477; People v Bart (On Remand), 220 Mich App 1, 11; 558 NW2d 449 (1996). As this
Court has recently stated,
[W]hen sitting as a thirteenth juror, the hurdle a judge must clear to overrule a jury, is
unquestionably among the highest in our law. It is to be approached by the court with
great trepidation and reserve, with all presumptions running against its invocation. [Id.
at 13.]
After carefully reviewing the record, we conclude that the trial court did not abuse its discretion
in denying defendant’s motion for a new trial.1 Defendant did not present any witnesses or evidence.
Defendant attempted to impeach the credibility of Hillier and Zion by suggesting that there had been a
long-standing feud between them and defendant. However, both witnesses denied the existence of a
feud. Defendant offers no reason why the jury’s finding regarding credibility should be overruled. The
evidence, when considered in its entirety, does not clearly weigh in defendant’s favor. Accordingly, we
find no error requiring reversal.
II
Defendant next claims that his conviction should be reversed because several of the
prosecutor’s comments denied him a fair trial. Defendant did not object at trial to the comments of
which he now complains. To preserve for appeal an argument that the prosecutor committed
misconduct during trial, a defendant must object to the conduct at trial on the same ground as he asserts
on appeal. In the absence of a proper objection, review is precluded unless a curative instruction could
not have eliminated the prejudicial effect or the failure to consider the issue would result in a miscarriage
of justice. People v Nantelle, 215 Mich App 77, 86-87; 544 NW2d 667 (1996).
We have reviewed the comments cited by defendant and conclude that in each case a timely
curative instruction would have eliminated any prejudice. Accordingly, defendant is not entitled to relief.
III
Defendant next argues that the trial court abused its discretion by ordering him to pay $455 in
restitution because it was a loss for which Hillier had already been compensated. We agree.
A sentencing court’s authority to order restitution derives from MCL 780.766(2); MSA
28.1287(766)(2), which gives a sentencing court discretion to order restitution to any victim of the
defendant’s course of conduct that gives rise to the conviction, in addition to or in lieu of any
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other penalty authorized or required by law. People v Schluter, 204 Mich App 60, 63; 514 NW2d
489 (1994). Restitution is not a substitute for civil damages, but encompasses only those losses that are
easily ascertained and are a direct result of a defendant’s criminal conduct. People v White, 212 Mich
App 298, 316; 536 NW2d 876 (1995).
In this case, the trial court ordered defendant to pay Hillier $455 for income that he lost as a
result of testifying at trial. This Court has stated that the amount of restitution should be based upon the
evidence. See People v Guajardo, 213 Mich App 198, 200; 539 NW2d 570 (1995). The Court
based its determination of the amount of restitution on Hillier’s estimate that he lost 13 hours of work at
$35 per hour while he was testifying at defendant’s trial. However, Hillier testified that he was a self
employed independent contractor who was paid by the work accomplished rather than by the hour.
Thus, there is no evidence on the record to support defendant’s claim that he was entitled to $35 per
hour, or that he was not otherwise able to perform and get paid for the work he would have done while
testifying. Further, it is questionable whether the statute contemplates the award of lost income based
solely on the victim’s participation in defendant’s criminal proceedings, as the causal connection
between the defendant’s criminal activity and the victim’s loss is remote. We therefore vacate the trial
court’s order of restitution.
IV
In his final issue, defendant asserts that he was denied the effective assistance of counsel at trial.
A defendant that claims that he has been denied the effective assistance of counsel must establish that
(1) the performance of his counsel was below an objective standard of reasonableness under prevailing
professional norms and (2) a reasonable probability exists that, in the absence of counsel’s
unprofessional errors, the outcome of the proceedings would have been different. People v Pickens,
446 Mich 298, 302-303; 521 NW2d 797 (1994). A defendant must overcome a strong presumption
that the assistance of his counsel was sound trial strategy, and he must show that but for counsel’s error,
there is a reasonable probability that the outcome of the trial would have been different. People v
Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994), cert den sub nom Michigan v Caruso, 513
US 1121 (1995).
Defendant argues that he was denied the effective assistance of counsel because his trial counsel
failed to subpoena a tape of Zion’s 911 call and did not call as witnesses neighbors of Zion and Hillier
who told the police that they did not hear gunshots on the day of the alleged assault. Because there was
no Ginther2 hearing, this Court's review is limited to errors apparent on the record. People v Hurst,
205 Mich App 634, 641; 517 NW2d 858 (1994).
The decision whether to call a witness is a matter of trial strategy. People v Daniel, 207 Mich
App 47, 58; 523 NW2d 830 (1994). Ineffective assistance of counsel can take the form of failure to
call witnesses or present other evidence only if the failure deprives the defendant of a substantial
defense. A defense is substantial if it might have made a difference in the outcome of the trial. People v
Hyland, 212 Mich App 701, 710; 538 NW2d 465 (1995). In the present case, defendant neither
identified the witnesses he claims should have been called nor indicated the substance of their testimony.
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Furthermore, a police officer testified that the neighbors told him that they did not hear any gunshots.
Hillier lived in a rural area where the nearest neighbor lived 750 to 1000 feet away. On this record, we
do not believe that trial counsel’s failure to call Hillier’s neighbors as witnesses deprived him of a
substantial defense.
Similarly, defendant has not overcome the presumption that trial counsel’s failure to subpoena
the 911 tapes was sound trial strategy. There is nothing in the record that supports defendant’s claim
that the tapes may have been exculpatory to him. Accordingly, defendant has not demonstrated that he
was prejudiced by counsel’s failure to subpoena the tapes.
Affirmed in part and vacated in part.
/s/ Mark J. Cavanagh
/s/ Maureen Pulte Reilly
/s/ Helene N. White
1
Defendant argues that the trial court erroneously applied the standard for determining whether there
was sufficient evidence to support the conviction. When ascertaining whether sufficient evidence was
presented at trial to support a conviction, this Court must view the evidence 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. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748
(1992). Because the trial court did not specifically state which standard it applied, it is unclear whether
the trial court erred. However, even if the trial court did utilize the wrong standard, the evidence does
not clearly weigh in defendant’s favor. Where the trial court reaches the right result for the wrong
reason, this Court will not reverse. People v Brake, 208 Mich App 233, 242 n 2; 527 NW2d 56
(1995).
2
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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