IN RE ERIC LEE MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of ERIC LEE, Minor.
__________________________________________
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 26, 2000
Plaintiff-Appellee,
v
No. 217159
Wayne Juvenile Court
LC No. 96-343631
ERIC LEE,
Defendant-Appellant.
Before: Bandstra, C.J., and Fitzgerald and D. B. Leiber*, JJ.
MEMORANDUM.
Defendant was charged with first-degree criminal sexual conduct. MCL 750.520b
(1)(f)(i); MSA 28.788(2)(1)(f)(i). He was adjudicated responsible of the lesser offense of thirddegree criminal sexual conduct, MCL 750.520d(1)(a), (b); MSA 28.788(4)(1)(a), (b), and placed
on probation. Defendant appeals as of right and we affirm.
Defendant’s sole claim on appeal is that he was denied effective assistance of counsel.
To establish that a defendant’s right to effective assistance of counsel was so undermined that it
justifies reversal of an otherwise valid conviction, the defendant must show that counsel’s
representation fell below an objective standard of reasonableness and that the representation so
prejudiced defendant as to deprive him of a fair trial. People v Price, 214 Mich App 538, 547;
543 NW2d 49 (1995). To establish prejudice, 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.
People v Stanaway, 446 Mich 643, 687-688; 521 NW2d 557 (1994); People v Pickens, 446 Mich
298, 314; 521 NW2d 797 (1994). The defendant must also overcome a strong presumption that
counsel’s assistance constituted sound trial strategy. Stanaway, supra. Because defendant failed
to preserve this issue by moving for a new trial or an evidentiary hearing below, our review is
limited to mistakes apparent on the record. Price, supra; People v Hedelsky, 162 Mich App 382,
387; 412 NW2d 746 (1987).
* Circuit judge, sitting on the Court of Appeals by assignment.
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Matters of trial strategy will not support a claim of ineffective assistance of counsel.
People v Campbell, 165 Mich App 1, 7; 418 NW2d 404 (1987). The decisions whether to call
defendant to testify, to argue one defense over another, and to concede guilt on a lesser offense in
the hope of gaining acquittal on a more serious charge are matters of trial strategy. People v
Johnson, 168 Mich App 581, 586; 425 NW2d 187 (1988); Hedelsky, supra; People v Wise, 134
Mich App 82, 99; 351 NW2d 255 (1984). The fact that counsel’s chosen strategy did not work
does not constitute ineffective assistance of counsel. People v Williams, 240 Mich App 316, 332;
614 NW2d 647 (2000). Even if defendant had not testified, it is unlikely that the outcome would
have been different. Because this was a bench trial, the court could consider lesser included
offenses. People v Darden, 230 Mich App 597, 599; 585 NW2d 27 (1998). The court
determined that defendant sexually penetrated the victim and that the penetration was
accomplished through the use of physical force and those findings, which were not clearly
erroneous, People v Gistover, 189 Mich App 44, 46; 472 NW2d 27 (1991), proved the necessary
elements of third-degree criminal sexual conduct.
We affirm.
/s/ Richard A. Bandstra
/s/ E. Thomas Fitzgerald
/s/ Dennis B. Leiber
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