PEOPLE OF MI V BENSON WRIGHT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 30, 2001
Plaintiff-Appellee,
v
BENSON WRIGHT, a/k/a LAMONT CURRY,
No. 218920
Wayne Circuit Court
LC No. 98-004952
Defendant-Appellant.
Before: Markey, P.J., and Jansen and Zahra, JJ.
PER CURIAM.
Defendant was charged with eight counts of assault with intent to murder, MCL 750.83;
MSA 28.278, and one count of arson of a dwelling house, MCL 750.72; MSA 28.267.
Following a jury trial, defendant was convicted of eight counts of assault with intent to do great
bodily harm, MCL 750.84; MSA 28.279, and one count of arson of a dwelling house, MCL
750.72; MSA 28.267. He was sentenced to six to ten years’ imprisonment on each of the eight
assault convictions and to an enhanced term of fifteen to forty years’ imprisonment, the latter
sentence reflecting defendant’s status as a third habitual offender, MCL 769.11; MSA 28.1083.
Defendant appeals by right. We affirm.
Defendant argues that there was insufficient evidence presented at trial on the intent
element to support his convictions for assault with intent to commit great bodily harm. We
disagree. In reviewing the sufficiency of the evidence, this Court must view the evidence in a
light most favorable to the prosecutor 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, amended 441 Mich 1201 (1992).
In People v Parcha, 227 Mich App 236, 239; 575 NW2d 316 (1997), this Court held that
“[a]ssault with intent to commit great bodily harm less than murder requires proof of (1) an
attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an
intent to do great bodily harm less than murder.” This Court further held that this offense is a
“specific intent crime.” Id. Intent may be inferred from all the facts and circumstances. People
v Daniels, 163 Mich App 703, 706, 708; 415 NW2d 282 (1987). Furthermore, because of the
difficulty of proving an actor's state of mind, minimal circumstantial evidence is sufficient.
People v Bowers, 136 Mich App 284, 297; 356 NW2d 618 (1984).
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Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact
could have found that the prosecution proved the requisite intent beyond a reasonable doubt
where it showed that defendant called the victim’s house and threatened her, and then threw a
firebomb into the house. Moreover, because the prosecution did produce sufficient evidence to
support the finding that defendant intended to commit great bodily harm to the complainant,
there was sufficient evidence to support the seven other assault convictions because the doctrine
of transferred intent applies to this situation. See People v Lovett, 90 Mich App 169, 172; 283
NW2d 357 (1979). Before a defendant can be convicted under the doctrine of transferred intent,
it must be shown that “he had the intention to cause great bodily harm to someone” and “[i]t is
only necessary that the state of mind exist, not that it be directed at a particular person.” Id.
Thus, given the evidence at trial, the specific intent element of the crime was satisfied for each of
the eight charges.
Next, defendant argues that the court improperly admitted “other acts” evidence regarding
a previous assault on the complainant and defendant’s drug-dealing activities. Defendant did not
preserve this issue by objecting to the evidence at trial. In order to avoid forfeiture of an
unpreserved issue on appeal, an appellant must show: (1) that an error occurred, (2) that the error
was plain, i.e., clear or obvious, and (3) that the plain error affected substantial rights. People v
Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Once an appellant has satisfied these three
requirements, an appellate court must “exercise its discretion in deciding whether to reverse.” Id.
Reversal is warranted only when the plain, unpreserved error resulted in the conviction of an
actually innocent defendant or when an error ‘“seriously affect[ed] the fairness, integrity or
public reputation of judicial proceedings’ independent of the defendant’s innocence.” Id. at 763,
quoting United States v Olano, 507 US 725, 736-737; 113 S Ct 1770; 123 L Ed 2d 508 (1993).
In other words, assuming that plain error occurred, the defendant must still demonstrate
prejudice, i.e., that the alleged plain error affected the outcome of the proceedings. Carines,
supra.
Assuming without deciding that the trial court improperly admitted the challenged
evidence under MRE 404(b), we conclude that the error was not outcome determinative because
the evidence was admissible without regard to MRE 404(b). Defendant’s involvement in drug
dealing and his prior assault of the complainant were so connected to the fire bombing for which
defendant was charged, that evidence of these “other acts” was admissible for the purpose of
providing the jury with the “complete story,” i.e., that defendant became angry when the
complainant refused to continue to sell drugs for defendant, and when the prior assault did not
persuade the complainant to return to selling drugs for defendant, defendant decided to punish
her by fire bombing her home. People v Delgado, 404 Mich 76, 83; 273 NW2d 395 (1978).
Defendant also argues that during closing argument, the prosecutor improperly remarked
regarding facts that were not in evidence and that severely prejudiced defendant. We disagree.
Because defendant failed to object below to the prosecutor’s remarks he now challenges, we
review only for plain error affecting substantial rights. Carines, supra.
Reviewing the pertinent portions of the record and evaluating the challenged remarks in
context, People Schutte, 240 Mich App 713, 721; 613 NW2d 370 (2000), we find that the remark
concerning defendant’s need for someone to sell drugs for him before Christmas was based on
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reasonable inferences arising from the evidence as they related to the prosecution’s theory of the
case. The prosecutor’s remarks regarding what time defendant called the complainant may
indeed be a misstatement of the evidence presented. Nonetheless, we conclude that any
prejudicial effect of the prosecutor’s comments could have been cured by a timely instruction.
“No error requiring reversal will be found if the prejudicial effect of the prosecutor’s comments
could have been cured by a timely instruction.” Schutte, supra. Ultimately, the test is whether
defendant was denied a fair trial. People v Noble, 238 Mich App 647, 660; 608 NW2d 123
(1999). We conclude that defendant was not denied a fair trial in light of the strength of the
evidence against him.
Defendant raises several claims of ineffective assistance of counsel. These claims have
no merit. A claim of ineffective assistance of counsel raises a constitutional claim. People v
Lloyd, 459 Mich 433, 446; 590 NW2d 738 (1999). Appellate courts address constitutional issues
under a de novo standard of review. People v McRunels, 237 Mich App 168, 171; 603 NW2d 95
(1999). Because defendant failed to create a factual record to support his claims, our review is
limited to mistakes apparent in the record. People v Williams, 223 Mich App 409, 414; 566
NW2d 649 (1997).
To establish that the defendant’s right to effective assistance of counsel was so
undermined that it justifies reversal of an otherwise valid conviction, this Court must find that
counsel’s representation fell below an objective standard of reasonableness and that the
representation so prejudiced the defendant as to deny him a fair trial. People v Pickens, 446
Mich 298, 302-303; 521 NW2d 797 (1994). Furthermore, judicial scrutiny of trial counsel’s
performance must be “highly deferential.” Strickland v Washington, 466 US 668, 689; 104 S Ct
2052; 80 L Ed 674 (1984). The defendant must overcome the presumption that the challenged
action or omission could conceivably be considered sound trial strategy under the circumstances.
Id. This Court will not second-guess counsel’s trial tactics. People v Emerson (After Remand),
203 Mich App 345, 349; 512 NW2d 3 (1994).
Defendant argues that his counsel was ineffective for failing to request a cautionary
instruction regarding the other acts evidence, i.e., the previous assault and defendant’s drugdealing activities. We disagree.
In this case, both the prosecution and defendant introduced evidence regarding
defendant’s drug-dealing activities and use; the prosecution introduced evidence regarding the
previous assault. Upon request, the trial court must provide a limiting instruction regarding the
use of the bad acts evidence regardless of whether the evidence was introduced by the prosecutor
or the defendant. People v Starr, 457 Mich 490, 498; 577 NW2d 673 (1998). In People v Rice
(On Remand), 235 Mich App 429, 444-445; 597 NW2d 843 (1999), the defendant argued as
defendant does here, that counsel was ineffective for failing to request the limiting instruction.
Therein, this Court explained:
Here, defendant has not overcome the presumption [that the assistance of his
counsel was sound trial strategy.] Despite defendant’s contention that the
instruction could only have helped him, it may have been defense counsel’s
strategy to downplay defendant’s prior conduct and the underlying purpose for
offering such evidence—motive. Regardless, this Court will not second-guess
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counsel regarding matters of trial strategy, and even if defense counsel was
ultimately mistaken, this Court will not assess counsel’s competence with the
benefit of hindsight. People v Barnett, 163 Mich App 331, 338; 414 NW2d 378
(1987). Moreover, in light of the overwhelming evidence of defendant’s guilt in
this case, we conclude that the outcome would not have been different even if
defense counsel had requested the instruction. Accordingly, defendant was not
denied effective assistance of counsel. [Rice, supra.]
Precisely the same conclusion must be drawn in this case. Counsel may well have determined
that it was better strategically not to draw further attention to defendant’s previous conduct.
Moreover, the evidence against defendant was overwhelming. Accordingly, defendant was not
denied effective assistance of counsel on this basis.
Defendant next argues that his counsel’s failure to request an evidentiary hearing, the
purpose of which would be to establish that his convictions were secured by perjured testimony.
Defendant does not indicate what evidence should have been produced, and because this Court’s
review is limited to the record, it is impossible to determine to what evidence defendant alludes
or to determine what conversations occurred between counsel and defendant. Therefore,
defendant’s failure to support his claim is fatal to that claim. People v Hyland, 212 Mich App
701, 710-711; 538 NW2d 465 (1995), vacated in part on other grds 453 Mich 902; 554 NW2d
899 (1996).
Furthermore, defendant asserts that counsel failed to inform defendant that he was
charged as an habitual offender, so that he was unable to make an informed choice regarding
going to trial or accepting a plea bargain. We find nothing in the record to show that trial
counsel failed to properly explain to defendant all the possible consequences of either accepting
the offer or going to trial. Moreover, the court file documents that defendant was charged at the
outset as an habitual offender. Therefore, defendant’s unsupported allegations, without more, are
not sufficient to establish an ineffective assistance claim on this basis.
Next, defendant argues that counsel should have objected to “alleged mischaracterization
of time and perjured testimony.” We assume that the “alleged mischaracterization of time”
defendant posits is the prosecutor’s remark, discussed above, that defendant called the
complainant at “11:30.” As observed above, the remark did not unfairly prejudice defendant and,
therefore, cannot sustain a claim of ineffective assistance of counsel.
Although defendant also claims that counsel should have objected to “perjured
testimony,” defendant does not identify the alleged perjured testimony. As already noted, a
failure to support a claim of ineffective assistance of counsel is fatal to that claim. Hyland,
supra.
Finally, defendant argues that the prosecutor solicited perjured testimony and then
repeated the testimony in her closing remarks. Defendant’s claim fails. He has made no showing
that perjured testimony was given or that the prosecutor knowingly used false testimony to obtain
a conviction. People v Lester, 232 Mich App 262, 276-278; 591 NW2d 267 (1998). To the
extent that defendant now contends that the complainant’s testimony was false, we point out that
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issues of credibility are left to the trial court to resolve. People v Avant, 235 Mich App 499, 506;
597 NW2d 864 (1999).
We affirm.
/s/ Jane E. Markey
/s/ Kathleen Jansen
/s/ Brian K. Zahra
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