            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  April 16, 2019
              Plaintiff-Appellee,

v                                                                 No. 340333
                                                                  Wayne Circuit Court
TOMMIE CARL BRADFORD,                                             LC No. 17-002833-01-FH

              Defendant-Appellant.


Before: TUKEL, P.J., and K. F. KELLY and M. J. KELLY, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial conviction of domestic violence, MCL
750.81(2).1 Defendant was sentenced under the statute’s second-offense provision, MCL
750.81(4), to one year in jail and two years’ probation. We affirm defendant’s conviction but
remand for further elaboration on the trial court’s assessment of court costs.

                           I. SUFFICIENCY OF THE EVIDENCE

       Defendant argues that there was insufficient evidence to support his domestic violence
conviction. We disagree.

        “A challenge to the sufficiency of the evidence in a jury trial is reviewed de novo,
viewing the evidence in the light most favorable to the prosecution, to determine whether the
trier of fact could have found that the essential elements of the crime were proved beyond a
reasonable doubt.” People v Gaines, 306 Mich App 289, 296; 856 NW2d 222 (2014).

       MCL 750.81(2) states, in pertinent part:




1
  Defendant had been charged with aggravated domestic violence, MCL 750.81a(2), but was
convicted of domestic violence, MCL 750.81(2), a lesser-included offense.
       [A]n individual who assaults or assaults and batters . . . an individual with whom
       he or she has or has had a dating relationship . . . is guilty of a misdemeanor
       punishable by imprisonment for not more than 93 days or a fine of not more than
       $500.00, or both.[2]

Accordingly, a conviction for domestic violence requires “(1) the commission of an assault or an
assault and battery” and (2) a pertinent relationship. People v Cameron, 291 Mich App 599,
614; 806 NW2d 371 (2011). “An assault may be established by showing either an attempt to
commit a battery or an unlawful act that places another in reasonable apprehension of receiving
an immediate battery.” People v Starks, 473 Mich 227, 234; 701 NW2d 136 (2005). A battery is
“an intentional, unconsented and harmful or offensive touching of the person of another, or of
something closely connected with the person.” Id. (quotation marks and citation omitted).

       Defendant argues that there was insufficient evidence of domestic violence because he
was not in a dating relationship with Davis at the time of the assault, as their relationship had
ended approximately two months prior to the assault. However, the dating-relationship element
of domestic violence includes a past dating relationship. See MCL 750.81(2) (allowing for
conviction as long as the defendant “has had a dating relationship” with the victim). Defendant
and Davis both testified that they had been in a dating relationship prior to the assault.
Therefore, there was sufficient evidence for the dating-relationship element of domestic
violence.

        Defendant next argues that there was insufficient evidence of an assault because Davis
did not suffer any injury. However, defendant’s argument is without merit, as there is no injury
requirement in order to be convicted of domestic violence; instead, all that is necessary to prove
the charge was that defendant assaulted or assaulted and battered Davis. See Cameron, 291
Mich App at 614 (“It does not matter whether the touching caused an injury.”). Here, there was
evidence to show that defendant assaulted or assaulted and battered Davis. She testified that
while she was at the house with defendant, he grabbed her by the shirt collar, swung a hammer at
her, grabbed her by the neck, choked her, held a hammer aloft while yelling at her, slapped and
punched her, and hit her in the chest. Thus, viewed in the light most favorable to the
prosecution, there was sufficient evidence to prove that defendant assaulted and battered Davis.3




2
  However, defendant was sentenced under the second-offense provision of MCL 750.81(4),
which allows for “imprisonment for not more than 1 year or a fine of not more than $1,000, or
both.”
3
  Furthermore, although not needed to establish that defendant was guilty of domestic violence
under MCL 750.81(2), the evidence did show that David sustained injuries. Davis’s hospital
records stated that she had a closed-head injury and bruising. And Frances Berry, the Desk
Operation Service Officer with the Detroit Police who took Davis’s report, testified that Davis
had a swollen black eye, as well as bruises on her neck and chest. The prosecution also
introduced a photograph of Davis, taken “a couple days after” her hospital visit, that showed the


                                               -2-
        In defendant’s Standard 4 brief, he argues that there was insufficient evidence that Davis
suffered a serious injury that required immediate medical treatment. However, defendant’s
statement of law is in reference to the charged offense of aggravated domestic violence, MCL
750.81a(2),4 not the lesser-included offense of domestic violence, MCL 750.81(2), of which
defendant was convicted. Because domestic violence does not require any injury, let alone a
serious injury requiring immediate medical treatment, let alone any injury, defendant’s argument
is without merit.

        Defendant also argues in his Standard 4 Brief that there was insufficient evidence to
sustain his conviction because Davis fabricated the facts of the assault. Apart from defendant’s
version of events on the date of the assault, there is no evidence to support his assertion that
Davis fabricated the assault. In reviewing a sufficiency claim, this Court is to resolve all
conflicts in the evidence in favor of the prosecution. People v Mikulen, 324 Mich App 14, 20;
919 NW2d 454 (2018). Additionally, “issues of witness credibility are matters for the jury and
not this Court.” People v Railer, 288 Mich App 213, 219; 792 NW2d 776 (2010). While Davis
and defendant testified to different versions of the events on the day of the assault, the jury
determined that Davis’s testimony relating to the assault and battery was credible. Thus,
defendant has not put forth any argument that would warrant reversing his conviction.

                                         II. COURT FEES

       Defendant argues that the trial court erred when it failed to state the factual basis to
support its imposition of $1,300 in court costs. We agree.

       “For an issue to be preserved for appellate review, it must be raised, addressed, and
decided by the lower court.” People v Metamora Water Serv Inc, 276 Mich App 376, 382; 741
NW2d 61 (2007). Defendant did not raise the issue in the trial court. Therefore, this issue is
unpreserved, and our review is for plain error affecting substantial rights. People v Perry, 317
Mich App 589, 600; 895 NW2d 216 (2016). “To avoid forfeiture under the plain error rule, three
requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or
obvious, 3) and the plain error affected substantial rights.” People v Carines, 460 Mich 750,
763; 597 NW2d 130 (1999).

         MCL 769.1k(1) states, in pertinent part:

         (b) The court may impose any or all of the following:

         (i) Any fine authorized by the statute for a violation of which the defendant
         entered a plea of guilty or nolo contendere or the court determined that the
         defendant was guilty.



remnants of Davis’s black eye. This evidence corroborated Davis’s testimony about being
battered by defendant.
4
    The jury acquitted defendant of this more serious charge.


                                                 -3-
       (ii) Any cost authorized by the statute for a violation of which the defendant
       entered a plea of guilty or nolo contendere or the court determined that the
       defendant was guilty.

       (iii) Until October 17, 2020, any cost reasonably related to the actual costs
       incurred by the trial court without separately calculating those costs involved in
       the particular case, including, but not limited to, the following:

               (A) Salaries and benefits for relevant court personnel.

               (B) Goods and services necessary for the operation of the court.

               (C) Necessary expenses for the operation and maintenance of court
               buildings and facilities.

       [Emphasis added.]

        Thus, for the trial court’s imposition of court costs to be valid, they must arise under
either MCL 769.1k(1)(b)(ii) or (iii). Defendant was convicted of domestic violence, MCL
750.81(2). The domestic violence statute does not authorize the imposition of court costs for
purposes of MCL 769.1(k)(b)(ii). See MCL 750.81(2) (only authorizing imprisonment or a fine
or both). Although the court costs could be authorized by MCL 769.1k(1)(b)(iii) as actual costs
incurred by the trial court, the trial court failed to state the factual basis for the imposed costs.
This Court has previously determined that “without a factual basis for the costs imposed, we
cannot determine whether the costs imposed were reasonably related to the actual costs incurred
by the trial court, as required by MCL 769.1k(1)(b)(iii).” People v Konopka (On Remand), 309
Mich App 345, 359-360; 869 NW2d 651 (2015). As in Konopka, the trial court here failed to
state the factual basis for the court costs. Consequently, we cannot determine whether the costs
were “reasonably related” to the trial court’s actual costs. Id., citing MCL 7691k(1)(b)(iii).
Even for unpreserved issues, defendants “should be given the opportunity to challenge the
reasonableness of the costs imposed.” Konopka, 309 Mich App at 360. Therefore, we remand to
the trial court to establish the factual basis for the $1,300 in court costs imposed under MCL
769.1k(1)(b)(iii), or to alter the court costs if appropriate.

                       III. INEFFECTIVE ASSISTANCE OF COUNSEL

        In defendant’s Standard 4 brief, he argues that defense counsel did not provide effective
assistance because defense counsel “stipulated” that defendant could not testify about his alibi
and defense counsel did not object to the admission of the photograph that depicted Davis’s
injuries. We disagree.

       Defendant did not move for a new trial or an evidentiary hearing; therefore, this issue is
unpreserved. See People v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009). “Where
claims of ineffective assistance of counsel have not been preserved, our review is limited to
errors apparent on the record.” People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342
(2004). The determination of whether a defendant has been deprived of the effective assistance
of counsel presents a mixed question of fact and law. People v Trakhtenberg, 493 Mich 38, 47;

                                                -4-
826 NW2d 136 (2012). The trial court’s factual findings are reviewed for clear error, while its
constitutional determinations are reviewed de novo. Id.

        “Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.” People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001). To
succeed on a claim of ineffective assistance of counsel, “a defendant must establish that
‘counsel’s representation fell below an objective standard of reasonableness’ and that ‘there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’ ” People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012),
quoting Strickland v Washington, 466 US 668, 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
The question of whether counsel performed reasonably is “an objective one and requires the
reviewing court to ‘determine whether, in light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally competent assistance.’ ” Vaughn, 491
Mich at 670, quoting Strickland, 466 US at 690. “To demonstrate prejudice, the 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).

         Defendant argues that defense counsel was ineffective for “stipulating” that defendant
could not testify about his alibi for the day of the assault. Defendant does not provide a record
citation to where defense counsel supposedly stipulated that defendant could not testify regarding
his alibi, and a review of the record does not suggest that any such stipulation occurred.
Defendant’s failure to establish the factual predicate for his claim of ineffective assistance is fatal
to the claim. See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). Furthermore,
defendant’s position is even more questionable because the record is clear that defendant did
testify that he was at the Rosa Parks Transit Center the morning of the assault. Defendant also
testified that he never went to the house with Davis. Instead, defendant stated that he spent most
of the day travelling to and from an interview in Troy. Therefore, assuming there was a
“stipulation” to not have defendant testify regarding any alibi, defendant cannot establish any
prejudice because he was able to provide his alibi testimony notwithstanding any alleged
stipulation.

         Defendant next argues that defense counsel was ineffective for failing to object to the
admission of a photograph that showed Davis’s black eye because the photograph was not
authenticated. “For the admission of a photograph, the only foundational requirement is the
testimony of an individual, familiar with the scene photographed, that it accurately reflects the
scene photographed.” People v Curry, 175 Mich App 33, 47; 437 NW2d 310 (1989). Davis
testified that her cousin took the photograph one or two days after the assault. Davis also stated
that she was the person in the photograph and that the photograph fairly and accurately depicted
her injuries the day that her cousin took the photograph. Therefore, the prosecution laid a proper
foundation for the admission of the photograph, and defense counsel was not ineffective for
failing to raise a meritless objection to the admission of the photograph. See People v Ericksen,
288 Mich App 192, 201; 793 NW2d 120 (2010).

       Defendant also claims that defense counsel was ineffective for failing to procure his bank
records to show evidence of Davis’s bounced checks. Defendant does not state the evidentiary
value of the bank records or whether defense counsel knew about the bank records. “However,

                                                 -5-
[d]ecisions regarding what evidence to present and whether to call or question witnesses are
presumed to be matters of trial strategy, which we will not second-guess with the benefit of
hindsight.” People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004) (quotation marks
and citation omitted). Moreover, there is not a reasonable probability that the introduction of
defendant’s bank records would have resulted in an acquittal because the records were not
relevant to the issue of assault. Therefore, defendant failed to show that defense counsel was
ineffective for not obtaining his bank records.

                                IV. PROSECUTORIAL ERROR

        In defendant’s ineffective assistance argument section in his Standard 4 brief, defendant
avers that the prosecution erred by referring to the case as a “domestic violence” case and by
failing to produce a hearing transcript. Generally, the test for granting a new trial is whether the
prosecution’s actions denied defendant a fair and impartial trial. People v Dobek, 274 Mich App
58, 63; 732 NW2d 546 (2007). However, defendant’s argument is unpreserved because he did
not timely object or request a curative instruction. People v Bennett, 290 Mich App 465, 475;
802 NW2d 627 (2010). Therefore, defendant’s issue of prosecutorial error is reviewed for plain
error affecting his substantial rights. People v Brown, 279 Mich App 116, 134; 755 NW2d 664
(2008).

         During the prosecution’s opening statement, the prosecutor correctly stated that
defendant was charged with “aggravated domestic violence.” During the prosecution’s closing
argument, the prosecutor reiterated that defendant was charged with “aggravated domestic
violence” and argued that the facts supported a conviction of the charge. Prosecutors are
generally free to argue the evidence and all reasonable inferences arising from the evidence as it
supports their theory of the case. People v Unger, 278 Mich App 210, 236; 749 NW2d 272
(2008). The prosecutor’s statements only referenced the charged offense of aggravated domestic
violence and why the evidence supported a conviction for the charge. Defendant was not denied
a fair trial by the prosecutor simply commenting on the charge and then arguing for a conviction
for the charge.

        Defendant also argues that the prosecution did not produce the preliminary examination
transcript, in violation of MCR 6.201(A)(2). MCR 6.201(A)(2) states that “upon request,” a
party must provide “any written or recorded statement, including electronically recorded
statements, pertaining to the case by a lay witness whom the party may call at trial.” At the
outset, defendant does not allege that he requested the prosecution to produce the transcript, and
the record does not indicate that such a request was made. Thus, without this request, there can
be no violation of MCR 6.201(A)(2). Moreover, defendant did receive the transcript of the
preliminary examination. The trial court ordered the production of the preliminary examination
transcript, see MCL 766.15(2), a week after the examination was conducted, and it is clear from
the record that defendant received a copy of the transcript. During trial, defense counsel
attempted to impeach Davis’s trial testimony multiple times by quoting her statements made at




                                                -6-
the preliminary examination. Therefore, defendant has failed to show that there was any
prosecutorial error regarding the production of the preliminary examination transcript.5

        We affirm defendant’s conviction but remand to allow the trial court to provide a factual
basis for the imposition of the court costs. We do not retain jurisdiction.

                                                             /s/ Jonathan Tukel
                                                             /s/ Kirsten Frank Kelly
                                                             /s/ Michael J. Kelly




5
  Further, to the extent defendant’s argument could be viewed as a due-process challenge, see
Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963), that challenge also fails
because, with defendant receiving the transcript, it is clear that the transcript was not suppressed
or withheld, see People v Dimambro, 318 Mich App 204, 212; 897 NW2d 233 (2016) (stating
that one of the elements in a Brady due-process claim is that the evidence must have been
suppressed by the government).


                                                -7-
