                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     January 22, 2015
               Plaintiff-Appellee,

v                                                                    No. 317995
                                                                     Wayne Circuit Court
COREY LAMONT MCCLURE,                                                LC No. 13-002498-FC

               Defendant-Appellant.


Before: MURRAY, P.J., and SAAD and K. F. KELLY, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of kidnapping, MCL
750.349(1)(c), two counts of first-degree criminal sexual conduct (“CSC”), MCL 750.520b(1)(e)
(sexual penetration by actor armed with a weapon), three counts of armed robbery, MCL
750.529, and three counts of felonious assault, MCL 750.82(1). Defendant was sentenced to 171
months to 25 years’ imprisonment for the kidnapping conviction, 135 months to 20 years’
imprisonment for each of the first-degree CSC convictions, 135 months to 20 years’
imprisonment for the first armed robbery conviction, 81 months to 15 years’ imprisonment for
each of the remaining armed robbery convictions, and 19 to 48 months’ imprisonment for each
of the felonious assault convictions. We reverse defendant’s three felonious assault convictions,
affirm his remaining convictions, and remand for resentencing if necessary.

                          I. FELONIOUS ASSAULT CONVICTIONS

       Defendant argues that there was insufficient evidence for a reasonable jury to find that he
possessed a dangerous weapon because the gun used in the crime was not real. Because the
felonious assault statute requires that the weapon used be a “dangerous weapon,” and not simply
one with the appearance of a dangerous weapon, we agree.

       This Court reviews the record de novo when addressing a claim of insufficient evidence.
People v Parker, 288 Mich App 500, 504; 795 NW2d 596 (2010); People v Mayhew, 236 Mich
App 112, 124; 600 NW2d 370 (1999). The Court construes the evidence in the light most
favorable to the prosecutor in determining if a rational trier of fact could find that the essential
elements of the crime were proven beyond a reasonable doubt. People v Tombs, 472 Mich 446,
459; 697 NW2d 494 (2005).



                                                -1-
        Felonious assault is “a simple assault aggravated by the use of a weapon.” People v
Jones, 443 Mich 88, 100; 504 NW2d 158 (1993) (citation omitted). “[T]he elements of an
offense may be established on the basis of circumstantial evidence and reasonable inferences
from the evidence.” People v Dunigan, 299 Mich App 579, 582; 831 NW2d 243 (2013). “The
elements of felonious assault are (1) an assault, (2) with a dangerous weapon, and (3) with the
intent to injure or place the victim in reasonable apprehension of an immediate battery.” People
v Chambers, 277 Mich App 1, 8; 742 NW2d 610 (2007). MCL 750.82 describes a dangerous
weapon for the purposes of the crime of felonious assault as “a gun, revolver, pistol, knife, iron
bar, club, brass knuckles, or other dangerous weapon . . . . ” The prosecutor need not present
proof of the operability of a gun used in an assault in order to support a felonious assault
conviction, People v Smith, 231 Mich App 50, 53; 585 NW2d 755 (1998), but an unloaded yet
operable gun is generally considered a dangerous weapon under MCL 750.82, id.

        Since at least 1938 Michigan courts have recognized that objects that are not “per se”
dangerous can be dangerous weapons “ ‘[w]hen the purpose is evidenced by act, and the
instrumentality is adapted to accomplishment of the assault and capable of inflicting serious
injury, then it is, when so employed, a dangerous weapon.’ “ People v Kay, 121 Mich App 438,
443-444; 328 NW2d 424 (1982), quoting citing People v Goolsby, 284 Mich 375, 378; 279 NW
867 (1938). Any object, including a dog or a car, can be a dangerous weapon for the purposes of
committing a felonious assault, so long as the object may be considered dangerous in its use.
Goolsby, 284 Mich at 378-380 (car as a dangerous weapon); Kay, 121 Mich App at 443 (dog
may be a dangerous weapon). However, a victim’s apprehension of an object alone cannot
“transform it into a ‘dangerous weapon.’ “ People v Stevens, 409 Mich 564, 567; 297 NW2d 120
(1980).1

        Defendant argues that the instant case aligns with Stevens. In Stevens, the defendant
pointed a starter pistol at individuals in a car following an “exchange of insults.” Id. at 565. The
parties stipulated for the purposes of the defendant’s motion to quash the information that “the
weapon involved was a starter pistol with the barrel bored out, containing eight live .22 caliber
shells, but with the firing pin filed down to the point that it would not be possible to fire the
pistol.” Id. at 566. Because there was no evidence that the defendant attempted or appeared to
use a starter pistol as a striking weapon, the Michigan Supreme Court determined that the
defendant could not be convicted of felonious assault because the starter pistol was incapable of
propelling a dangerous projectile, and therefore, it was not a dangerous weapon. Id.

       We agree that this case is analogous to Stevens. Like in Stevens, the trial court,
prosecution, and defendant all agreed that the gun was not capable of firing because it was a toy.
Indeed, the parties agreed to dismissal of a felony-firearm charge because the elements of that


1
 Stevens reasoned that if the Legislature intended for a victim’s apprehension to be the definitive
answer on whether a weapon is dangerous for purposes of the felonious assault statute, it would
have used the language that it used in the armed robbery statute, “which permits conviction on
the ground that the perpetrator committed the robbery with an ‘article used or fashioned in a
manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon.’ ”
Stevens, 409 Mich at 567 n 1, quoting MCL 750.529.

                                                -2-
offense could not be met because the gun was not real.2 Furthermore, there was no evidence that
defendant used the gun as a striking weapon, which Stevens indicates would transform a firearm
incapable of propelling a dangerous projectile into a dangerous weapon. Stevens, 409 Mich at
567 n 2. Therefore, the prosecution presented insufficient evidence for a reasonable jury to find
defendant guilty of felonious assault because it did not establish that he used a dangerous
weapon, which is a required element of the crime. See Chambers, 277 Mich App at 8.

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant argues that he received ineffective assistance of counsel during plea
negotiations and prior to trial. Defendant asserts that his trial counsel’s performance fell below
an objective standard of reasonableness during plea negotiations because his trial counsel (1)
recommended that defendant accept a plea for a crime that he could not have committed under
the law and facts of the case, and (2) failed to move to dismiss the felonious assault and felony-
firearm charges prior to trial. According to defendant, had his trial counsel successfully moved
to dismiss these charges prior to trial the plea bargain he would have been offered would have
been more favorable to him, and he would likely have accepted it.

        In order to preserve the issue of ineffective assistance of counsel, a defendant must file a
timely motion in the trial court for a new trial raising the issue. People v Ginther, 390 Mich 436,
443-444; 212 NW2d 922 (1973); People v Wilson, 242 Mich App 350, 352; 619 NW2d 413
(2000). When a defendant has failed to move the trial court for a new trial or an evidentiary
hearing within the time allotted by MCR 6.431(A) and MCR 7.208(B)(1), he may move in this
Court to remand the case back to the trial court, so that he may properly preserve the issue for
appellate review. See Ginther, 390 Mich at 444-445; see also MCR 7.211(C)(1). If the trial
court does not hold an evidentiary hearing on a defendant’s allegations, this Court is limited in
its review of the issue to mistakes apparent on the record. People v Hurst, 205 Mich App 634,
641; 517 NW2d 858 (1994). This Court denied defendant’s motion to remand, finding that
defendant conceded that “his arguments regarding his counsel’s ineffective performance can be
reviewed based on the existing record.” People v McClure, unpublished order of the Court of
Appeals, entered March 14, 2014 (Docket No. 317995). Accordingly, the issue is not preserved,
and this Court’s review is limited to the existing record. Wilson, 242 Mich App at 352; Hurst,
205 Mich App at 641.

        “Whether the defendant received the effective assistance of counsel guaranteed him
under the United States and Michigan constitutions is a mixed question of fact and law.” People
v Douglas, 496 Mich 557, 566; 852 NW2d 587 (2014). Findings of fact are reviewed for clear
error. Id. Questions of constitutional law are reviewed de novo. Id.

        Both the United States and Michigan Constitutions grant criminal defendants the right to
the effective assistance of counsel at trial. US Const, Am VI; Const 1963, art 1, § 20; People v
Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). A defendant claiming ineffective


2
  A toy gun that does not discharge a projectile is not a firearm for purposes of the felony-firearm
statute. People v Schofield, 124 Mich App 134, 135-136; 333 NW2d 607 (1983), rev’d on other
grounds 417 Mich 988 (1983).

                                                -3-
assistance of counsel must establish (1) that “counsel’s performance fell below an objective
standard of reasonableness and (2) but for counsel’s deficient performance, there is a reasonable
probability that the outcome would have been different.” Id. at 51-52 (citation omitted). “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001) (citation and quotation marks
omitted). This Court does not apply the benefit of hindsight when determining whether trial
counsel performed competently. People v Payne, 285 Mich App 181, 190; 774 NW2d 714
(2009).

        Criminal defendants are also entitled to effective assistance of competent counsel during
plea negotiations. Lafler v Cooper, 566 US ___; 132 S Ct 1376, 1384; 182 L Ed 2d 398 (2012)
(citations omitted). When considering whether trial counsel is ineffective in the context of the
plea process, the defendant “must show that the outcome of the plea process would have been
different with competent advice.” Id. at 1384 (citation omitted). When a defendant chooses to
stand trial and claims ineffective assistance of counsel during plea bargaining, in order to satisfy
the second part of the ineffective assistance test, known as the prejudice prong, the

       defendant must show that but for the ineffective advice of counsel there is a
       reasonable probability that the plea offer would have been presented to the court
       (i.e., that the defendant would have accepted the plea and the prosecution would
       not have withdrawn it in light of intervening circumstances), that the court would
       have accepted its terms, and that the conviction or sentence, or both, under the
       offer’s terms would have been less severe than under the judgment and sentence
       that in fact were imposed. [Id. at 1385.]

        Defendant is correct that two of the three plea offers made to him included a felony-
firearm charge, of which he could not have been convicted as a matter of law. However,
defendant conveniently ignores that he was also offered an alternate plea that did not include a
felony-firearm charge, and he rejected it. Indeed, on the first day of trial the prosecution placed
on the record two plea offers that defendant had rejected:

       It was offered, due to the advocacy of [defendant’s trial counsel], that the
       defendant could plead to a reduced charge of criminal sexual conduct in the third
       degree and one count of felony[-]firearm. All other counts, the kidnapping, the
       criminal sexual conduct in the first degree and the three armed robberies would
       have been dismissed.

       In addition to that, the three counts of felonious assault would have also been
       dismissed with a sentence agreement of five to sixteen, plus two.

       In the alternative, the defendant could have also pled to six to fifteen without
       pleading guilty to the felony[-]firearm. That would have been dismissed. It is my
       understanding that [defendant’s trial counsel] has explained this offer to his client.
       His client refuses to accept this offer. We are proceeding to trial.

        Defendant cannot establish that his trial counsel’s performance fell below an objective
standard of reasonableness. Trakhtenberg, 493 Mich at 51-52. First, the prosecution indicated
that the very generous plea offers it made were in part attributed to the advocacy of defendant’s
                                                -4-
trial counsel, and defendant rejected the very terms that he now asserts his attorney should have
worked towards. Second, defendant argues that his trial counsel was ineffective for failing to
move to dismiss charges during plea negotiations that the trial court refused to dismiss when
ruling on defendant’s motion for directed verdict. Trial counsel cannot be deemed ineffective for
failure to make fruitless motions. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d
120 (2010).

        Even assuming that trial counsel’s failure to move to dismiss the felonious assault and
felony-firearm charges prior to trial amounted to deficient performance during plea negotiations,
defendant cannot establish prejudice. The prosecutor went to great pains to make sure that
defendant understood that the plea offers were in his best interest, emphasizing that they were
significantly below the guidelines. Despite this, defendant rejected the plea offers. The outcome
would not have been different had trial counsel performed effectively because defendant chose to
reject plea offers that did not include a felonious assault or felony-firearm charge and were
substantially below the guidelines. Defendant has only himself to blame for not accepting a plea
offer that did not include the charged firearms counts.

                         III. FOURTH AMENDMENT CHALLENGE

        Defendant also argues, albeit unsuccessfully, that police violated his Fourth Amendment
rights by searching his home without a warrant. As a consequence, defendant argues that the
fake gun that police recovered in his home should have been suppressed.

       As an initial matter, to the extent defendant seeks suppression of the gun itself, the gun
was never admitted into evidence, although it appears from the transcript that the prosecution
intended to admit it as its Exhibit 9. Even without the gun itself being admitted into evidence, it
was discussed at length at trial. This testimonial evidence was properly in evidence.

        “A motion to suppress evidence must be made prior to trial or, within the trial court’s
discretion, at trial.” People v Gentner, Inc, 262 Mich App 363, 368; 686 NW2d 752 (2004)
(citation omitted). Defendant did not make a proper motion in the trial court to suppress the gun
or testimony related to the gun. However, in response to an objection, he did argue to the trial
court that the search violated the Fourth Amendment. The trial court did not consider the
argument, finding it to be an inappropriate discussion to have in front of the jury. Therefore, the
issue is not preserved, and we review for plain error. People v Carines, 460 Mich 750, 763; 597
NW2d 130 (1999). There was no plain error (or, for that matter, any error) because defendant’s
Fourth Amendment right was not violated.

        The standard of review applicable to a ruling on suppression varies depending on which
aspect of the ruling is at issue. This Court reviews a trial court’s decision on a motion to
suppress for clear error. People v Sobczak-Obetts, 463 Mich 687, 694; 625 NW2d 764 (2001).
Questions of law relevant to the suppression issue are reviewed de novo. Id. If the trial court
made findings of fact on the matter, these factual findings are reviewed for clear error. People v
Oliver, 464 Mich 184, 191; 627 NW2d 297 (2001). In the context of a seizure, the question of
whether suspicion was reasonable under the Fourth Amendment is a question of law that this
Court reviews de novo. People v Bloxson, 205 Mich App 236, 245; 517 NW2d 563 (1994)
(opinion by HOLBROOK, P.J.).

                                                -5-
       Both the United States and Michigan Constitutions protect an individual’s right to be free
from unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11. “It is a
basic principle of Fourth Amendment law that searches and seizures inside a home without a
warrant are presumptively unreasonable.” Payton v New York, 445 US 573, 586; 100 S Ct 1371;
63 L Ed 2d 639 (1980) (citation and internal quotation marks omitted). However, “a probationer
has a diminished expectation of privacy and, accordingly, may be subjected to searches that
might be unreasonable if conducted on members of the general public.” People v Glenn-Powers,
296 Mich App 494, 502; 823 NW2d 127 (2012), citing United States v Knights, 534 US 112; 122
S Ct 587; 151 L Ed 2d 497 (2001).

        In Griffin v Wisconsin, 483 US 868, 875; 107 S Ct 3164; 97 L Ed 2d 709 (1987), the
United States Supreme Court considered whether a Wisconsin statute that authorized warrantless
searches of a probationer’s home for “reasonable grounds” ran afoul of the Fourth Amendment
rights of probationers. Particularly, in Griffin, the probationer’s home was searched following a
tip from a police detective that he had or may have had an illegal weapon in his home. Id. The
Court ruled that because probation is a form of criminal sanction, with its goals to
simultaneously rehabilitate the probationer and protect the community from harm, the “special
needs” of the probation system justifies warrantless searches of probationers’ homes pursuant to
the Wisconsin regulation. Id. at 873-875. Further, it ruled that it is reasonable, pursuant to the
Fourth Amendment, to allow a tip from a police officer to justify the search of a probationer’s
home under the regulation. Id. at 879-880. “In some cases—especially in those involving drugs
or illegal weapons—the probation agency must be able to act based upon a lesser degree of
certainty than the Fourth Amendment would otherwise require in order to intervene before a
probationer does damage to himself or society.” Id. at 879.

        More recently, the Court reaffirmed and expanded its holding in Griffin, holding that the
government may execute a warrantless search of a probationer’s home upon a showing of
reasonable suspicion. Knights, 534 US at 118. It rejected the probationer’s argument that a
warrantless search of a probationer could only satisfy the Fourth Amendment if it was a search
“conducted by a probation officer monitoring whether the probationer is complying with
probation restrictions.” Id. at 117. It instead held, “[w]hen an officer has reasonable suspicion
that a probationer subject to a search condition is engaged in criminal activity, there is enough
likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly
diminished privacy interests is reasonable.” Id. at 121. The Court reasoned that the balance of
the considerations of “the degree to which [the search] intrudes upon an individual’s privacy”
and “the degree to which [the search] is needed for the promotion of legitimate governmental
interests” requires that “no more than reasonable suspicion” is needed for a search of a
probationer’s home to comport with the Fourth Amendment. Id. at 119, 121. This Court has
applied the Court’s reasoning from Griffin and Knights to warrantless searches and seizures of
probationers under Michigan regulations that align with Wisconsin’s probation regulations. See
Glenn-Powers, 296 Mich App at 502-503.

        Defendant argues that the Knights Court left open the question of the “intent of the
officers and the purpose of the search based only on reasonable suspicion.” But he cites no law
to support this assertion, Payne, 285 Mich App at 195, as none exists. Subjective intent is never
an appropriate inquiry in Fourth Amendment analysis, see, e.g., Ohio v Robinette, 519 US 33,
39; 117 S Ct 417; 136 L Ed 2d 347 (1996) (“Reasonableness . . . is measured in objective terms

                                               -6-
by examining the totality of the circumstances”) and People v Jenkins, 472 Mich 26, 32 n 6; 691
NW2d 759 (2005) (“[O]nly objective conduct and circumstances are relevant for Fourth
Amendment purposes”) (emphasis in original), as the relevant inquiry is whether the officers had
a reasonable suspicion, based on the totality of the circumstances, that the probationer was
involved in criminal activity, Knights, 534 US at 121.

        Turning to the application of the law to our facts, defendant insists that Robinson could
not search his home without an independent ground for doing so, and that he could not rely upon
what the police knew. Defendant relies chiefly on the Ninth Circuit decision in Smith v Rhay,
419 F2d 160 (CA 9, 1969). This Court is not bound by Ninth Circuit decisions. People v
Patton, 285 Mich App 229, 234; 775 NW2d 610 (2009). Smith is not persuasive either, for as we
concluded earlier, Michigan law authorizes searches of a probationer’s home, without a warrant,
based on a reasonable suspicion that a crime was committed. Glenn-Powers, 296 Mich App at
502-503, citing Knights, 534 US at 121.

        In the instant case, defendant appears to concede that under the terms of his probation, he
is subject to searches by Department of Corrections’ officers on reasonable cause for violating
the terms of his probation. Yet, he argues that Robinson did not have reasonable suspicion for
the search because Robinson admitted that he had no reason to search defendant’s home, other
than that police officers told Robinson that defendant was a suspect in a crime. Admittedly,
Robinson’s testimony is unclear as to how much he knew about the crime for which defendant
was under suspicion, as he did not testify to specifics, but instead indicated that defendant was
arrested “based on the actions that supposedly took place that day or the prior day that
[defendant] was supposedly involved in.” Even if Robinson did not know the details of the
crime, Detroit Police officers told him that defendant was a suspect in a crime. The relevant
inquiry is whether there was a reasonable suspicion that defendant committed a crime, Knights,
534 US at 121, and that testimony satisfies the test.

                                         CONCLUSION

        We reverse defendant’s felonious assault convictions as there was insufficient evidence
for a jury to find that he used a dangerous weapon, affirm defendant’s remaining convictions,
and remand for resentencing if necessary. We do not retain jurisdiction.

                                                            /s/ Christopher M. Murray
                                                            /s/ Henry William Saad
                                                            /s/ Kirsten Frank Kelly




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