                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 16, 2015
              Plaintiff-Appellee,

v                                                                  No. 320067
                                                                   Wayne Circuit Court
MARSHON DEON STURNER,                                              LC No. 13-006376-FH

              Defendant-Appellant.


Before: HOEKSTRA, P.J., and MARKEY and DONOFRIO, JJ.

PER CURIAM.

        A jury convicted defendant of two counts of felonious assault, MCL 750.82, for which he
was sentenced to three years’ probation with the first six months to be served in jail. Defendant
appeals as of right. Because the evidence was sufficient to support defendant’s convictions, the
trial court did not abuse its discretion by allowing a witness to testify to his personal
observations, the prosecutor did not commit misconduct, and defendant was not denied the
effective assistance of counsel, we affirm.

        Defendant’s convictions arise from a neighborhood street fight that began as a verbal
argument between Sharonda Billingsley, defendant’s girlfriend, and 16-year-old Rickia
Matthews and her mother Sharnita Matthews. The Matthews family lived across the street from
Billingsley. According to witnesses, the verbal argument escalated into a physical confrontation.
Defendant then joined the confrontation and began attacking Rickia. Brothers Alveko and Kevin
Durrah, who lived three houses down from the Matthews house, arrived in an apparent attempt to
stop the fighting. During the ordeal, defendant obtained a steel pipe, which he then raised in an
aggressive manner toward Alveko and Kevin Durrah while making threatening remarks. The
defense theory at trial, as expressed by defense counsel in opening statement, was that defendant
was attempting to break up the fight and he “was blamed for something he did not do.” The sole
defense witness, Doreen Jackson, testified that defendant never attacked anyone and that it was
Billingsley, not defendant, who approached the Durrah brothers with the steel pipe. The jury
convicted defendant of feloniously assaulting both Alveko and Kevin Durrah with the steel pipe.
Defendant now appeals as of right.

                           I. SUFFICIENCY OF THE EVIDENCE

       Defendant first argues there was insufficient evidence to support his convictions for
felonious assault. In particular, defendant argues that the evidence failed to show that he
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possessed an intent to injure either Alveko or Kevin, or that he intended to place either Alveko or
Kevin in a reasonable apprehension of an immediate battery.

        We review a claim regarding the sufficiency of the evidence de novo. People v Ericksen,
288 Mich App 192, 195; 793 NW2d 120 (2010). “In examining the sufficiency of the evidence,
this Court reviews the evidence in a light most favorable to the prosecutor to determine whether
any trier of fact could find the essential elements of the crime were proven beyond a reasonable
doubt.” People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012) (citation omitted).
Circumstantial evidence and the reasonable inferences that arise from the evidence can constitute
satisfactory proof of the elements of the crime. People v Bennett, 290 Mich App 465, 472; 802
NW2d 627 (2010). It is for the trier of fact rather than this Court to determine what inferences
can be fairly drawn from the evidence and to determine the weight to be accorded to the
inferences. People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002); People v Dunigan,
299 Mich App 579, 582; 831 NW2d 243 (2013). This Court will not interfere with the fact-
finder’s role of determining the weight of evidence or the credibility of witnesses. People v
Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992); People
v Eisen, 296 Mich App 326, 331; 820 NW2d 229 (2012).

        “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 Jackson, 487 Mich 783, 787 n 2; 790 NW2d 340 (2010) (citation and
emphasis omitted). “Felonious assault is a specific intent crime requiring either an intent to
injure or an intent to put the victim in reasonable fear or apprehension of an immediate battery.”
People v Rivera, 120 Mich App 50, 54; 327 NW2d 386 (1982). Intent may be inferred from all
the facts and circumstances. People v Russell, 297 Mich App 707, 721; 825 NW2d 623 (2012).
“Because it is difficult to prove an actor’s state of mind, only minimal circumstantial evidence is
required.” People v McGhee, 268 Mich App 600, 623; 709 NW2d 595 (2005).

        In this case, the evidence indicated that during, or in the moments after, the original
altercation between Billingsley and Rickia, defendant obtained a steel pipe and approached each
victim. Alveko testified that defendant held the steel pipe like a baseball bat. When Alveko
stepped in front of defendant to prevent him from getting to the girls, defendant raised the pipe
up as if to hit Alveko and stated, “I’m going to f**k you up.” Defendant also told Alveko to get
out of the way or defendant was going to hurt him. Alveko testified that he believed that
defendant was going to hit him with the pipe. Similarly, Kevin testified that defendant
approached him with the pole, raised and extended his hand backward, and stated, “I’ll f**k you
up old man.” Kevin explained that his first reaction was to immediately “draw back” because he
was scared and thought defendant was going to hit him. Viewing this evidence in a light most
favorable to the prosecution, the manner in which defendant raised the pipe at each victim while
simultaneously threatening to hurt them was sufficient to enable the jury to find beyond a
reasonable doubt that defendant assaulted the Durrah brothers with the intent to place them in
reasonable apprehension of an immediate battery.

       In contrast, on appeal, defendant highlights the fact that he did not hit either victim and
he characterizes his remarks as nothing but an “empty threat.” Although defendant emphasizes
that he did not actually hit anyone, it was not necessary for defendant to inflict injury or to
commit a battery to be convicted of felonious assault. See Jackson, 487 Mich at 787 n 2.

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Moreover, as noted, it was for the jury to determine what inferences to draw from the evidence,
and we will not interfere with these determinations on appeal. Hardiman, 466 Mich at 428-431.
Considering the manner in which defendant raised the pipe while simultaneously threatening
each victim, a rational jury could reasonably find that defendant possessed an intent to place the
victims in a reasonable apprehension of an immediate battery. Accordingly, the evidence was
sufficient to establish the elements of felonious assault.

                                  II. OPINION TESTIMONY

        Defendant next argues that the trial court erroneously allowed Alveko Durrah to express
his opinion that defendant raised the steel pipe as if he intended to hit Alveko with it. In
particular, defendant asserts that Alveko’s testimony was not admissible under MRE 602
because Alveko did not have personal knowledge of defendant’s state of mind. Alternatively,
defendant also maintains that the trial court pierced the veil of judicial impartiality when it
questioned Alveko to elicit his testimony that defendant raised the pipe as if he intended to hit
Alveko with it.

       “The decision whether to admit evidence is within the discretion of the trial court and
will not be disturbed on appeal absent a clear abuse of discretion.” People v Aldrich, 246 Mich
App 101, 113; 631 NW2d 67 (2001). A trial court abuses its discretion when its decision falls
outside the range of reasonable and principled outcomes. People v Musser, 494 Mich 337, 348;
835 NW2d 319 (2013).

        MRE 602 requires that a witness have personal knowledge of the matters to which he or
she testifies. It states:

       A witness may not testify to a matter unless evidence is introduced sufficient to
       support a finding that the witness has personal knowledge of the matter. Evidence
       to prove personal knowledge may, but need not, consist of the witness’ own
       testimony. . . . [MRE 602.]

Also relevant to this case, MRE 701 allows a lay witness to offer testimony in the form of
opinions or inferences that are “(a) rationally based on the perception of the witness and (b)
helpful to a clear understanding of the witness’ testimony or a determination of a fact in issue.”

      In this case, defendant objects to the following exchange during Alveko’s direct
examination testimony:

              Q. Tell me exactly what you saw the defendant do with the pipe in front
       of you[.]

               A. Okay. I thought that’s what I did. I stepped in front of him.

               Q. Okay.

               A. He raised the pipe up.

               Q. Yes.

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               A. As though he would hit me or step past me to hit someone else.

               [Defense Counsel]: I’m going to object as to the - -

               The Court: See you can’t tell us what you think he was going to do. Just
       tell us what you saw him do. He raised up the pipe as to hit you, is that correct?

               A. Yes.

         Considering this exchange, we see nothing improper in Alveko’s testimony. Contrary to
defendant’s framing of the issue, Alveko did not testify to defendant’s subjective state of mind;
instead, Alveko testified based on what he observed that defendant “raised the pipe up” “as
though” to hit Alveko. Alveko was present during the altercation and he personally witnessed
the events he described in his testimony. His testimony was sufficient to show that he had
personal knowledge of the matters he was describing. MRE 602. Moreover, Alveko’s testimony
that defendant raised the pipe up “as though” to hit him was a form of lay opinion testimony,
which was admissible because it was rationally based on Alveko’s perception of the manner in
which defendant raised the pipe and the testimony was helpful to a determination of a fact in
issue (i.e., whether defendant intended to hit Alveko with the pipe or to place him in
apprehension of an immediate battery). See MRE 701. Therefore, the trial court did not abuse
its discretion in allowing the testimony.

         On appeal, defendant also complains that the trial court pierced the veil of judicial
impartiality when it questioned Alveko to elicit his testimony that defendant raised the pipe as if
he intended to hit Alveko with it. Defendant argues that the trial court’s questioning placed its
seal of credibility on Alveko’s testimony. Because defendant did not object on this ground at
trial, this issue is unpreserved and our review is limited to plain error affecting defendant’s
substantial rights. See People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999); People
v Paquette, 214 Mich App 336, 340-341; 543 NW2d 342 (1995).

        A defendant is entitled to a neutral and detached magistrate during a criminal trial.
People v Cheeks, 216 Mich App 470, 480; 549 NW2d 584 (1996). Pursuant to MRE 614(b), the
trial court has the authority to interrogate witnesses at trial. Although a trial court is permitted to
question witnesses in order to clarify testimony or elicit additional relevant information, “the
court must exercise caution and restraint to ensure that its questions are not intimidating,
argumentative, prejudicial, unfair, or partial.” Cheeks, 216 Mich App at 480. “The test is
whether the judge’s questions and comments may have unjustifiably aroused suspicion in the
mind of the jury concerning a witness’ credibility and whether partiality quite possibly could
have influenced the jury to the detriment of the defendant’s case.” Id.

       In this case, the trial court asked an isolated question that was intended to clarify
Alveko’s previous testimony and ensure that it was limited to, and rationally based on, what
Alveko witnessed defendant do with the pipe. The trial court’s question was not asked in an
unfair or partial manner, and it did not suggest that the court believed that the testimony was
credible. Thus, the trial court’s question could not have influenced the jury to the detriment of
defendant’s case and there was no plain error. Furthermore, any perceived prejudice was cured
when the trial court later instructed the jury that “my comments, my rulings, my questions, and

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my instructions are not evidence” and that “[i]f you believe that I have an opinion about how you
should decide this case you must pay no attention to that opinion.” Jurors are presumed to
follow their instructions, and this instruction was sufficient to protect defendant’s substantial
rights. See People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003).

                            III. PROSECUTORIAL MISCONDUCT

       Defendant next argues that he was denied a fair and impartial trial because the prosecutor
mischaracterized Jackson’s testimony during closing argument by suggesting that Billingsley
“handed” the pipe to defendant, when in fact Jackson testified that defendant “grabbed” the pipe
from Billingsley.

         Defendant preserved this issue by objecting to this portion of the prosecutor’s argument
at trial. See People v Unger, 278 Mich App 210, 234-235; 749 NW2d 272 (2008). A preserved
claim of prosecutorial misconduct is reviewed de novo. Abraham, 256 Mich App at 272. The
test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial.
People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). Prosecutorial misconduct issues
are decided on a case-by-case basis, and the reviewing court must examine the record and
evaluate a prosecutor’s remarks in context. People v Mann, 288 Mich App 114, 119; 792 NW2d
53 (2010). Generally, a prosecutor enjoys wide latitude regarding her arguments and conduct at
trial. Unger, 278 Mich App at 236. A prosecutor may not make a statement of fact to the jury
that is unsupported by the evidence, but she is free to argue the evidence and all reasonable
inferences arising from it as they relate to her theory of the case. Id. at 236, 241.

         Defendant argues that the prosecutor mischaracterized Jackson’s testimony regarding
how defendant acquired the steel pipe after the fighting ended. In relevant part, Jackson testified
at trial as follows:

               A. He has a pipe, but he grabbed it out of Shay hands.

               Q. Okay.

               A. Two pipes.

               Q. Okay. How did that happen? How did that happen when - -

              A. When she was walking out the back yard he snatched it. He’s like, no,
       no, stop. You know, he’s talking to her. And she’s doing her thing. And she
       walks by.

               Q. So, he grabbed one of the pipes?

               A. Yes.

In comparison, in her closing argument, the prosecutor stated:

              Now, eventually the fight did end. But it didn’t end for Mr. Marshon
       Sturner. You heard testimony from [Jackson] who said that she saw Shay, who is

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         Sharonda Billingsley, run to the back of the house and come back with two metal
         pipes.

                 And she said that this was one of the pipes that was used that day. She
         said as she saw them come out she handed one to Mr. Sturner[.] [Emphasis
         added.]

        On appeal, defendant argues that the prosecutor mischaracterized Jackson’s testimony
regarding how defendant acquired the pipe and that the effect of the mischaracterization
amounted to the suggestion that defendant accepted the pipe from Billingsley in order to arm
himself for battle. Although Jackson testified that defendant “grabbed” the pipe from
Billingsley, whereas the prosecutor asserted that Billingsley “handed” the pipe to defendant, the
principal point of the prosecutor’s argument was that defendant obtained the pipe from
Billingsley. The prosecutor did not mischaracterize Jackson’s testimony in that respect. To the
extent that the prosecutor arguably made any minor misstatement of fact regarding whether
defendant “grabbed” the pipe or it was “handed” to him, the trial court cured any potential
prejudice by instructing the jury, immediately after defense counsel’s timely objection, that
“[w]hat the lawyers say is not evidence,” and by repeating in its final instructions that “[t]he
lawyers’ statements and arguments are not evidence.” See People v Long, 246 Mich App 582,
588; 633 NW2d 843 (2001). Accordingly, any misstatement did not deny defendant a fair trial.

                       IV. INEFFECTIVE ASSISTANCE OF COUNSEL

       Finally, defendant argues that defense counsel was ineffective for failing to introduce
evidence that defendant suffered from untreated bipolar disorder and attention deficit
hyperactivity disorder (ADHD) at the time of the offense. Defendant recognizes that this
information could not have been used to negate the specific intent element of felonious assault.
See People v Carpenter, 464 Mich 223, 241; 627 NW2d 276 (2001). Rather, defendant asserts
that such evidence would have been relevant to whether he committed the felonious assaults
because “evidence of his mental limitations and his usual hyperactivity would have been
probative of the fact that his actions in wielding the pipe were misinterpreted by other witnesses
and were actually innocent in nature.”

       Because defendant did not raise an ineffective assistance of counsel claim in a motion for
a new trial or request a Ginther1 hearing, our review of this issue is limited to errors apparent
from the record. People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002).

        Effective assistance of counsel is presumed, and defendant bears a heavy burden of
proving otherwise. People v LeBlanc, 465 Mich 575, 578; 640 NW2d 246 (2002). To establish
ineffective assistance of counsel, defendant must show: (1) that counsel’s performance fell
below an objective standard of reasonableness under prevailing professional norms, and (2) that
there is a reasonable probability that, but for counsel’s error, the result of the proceeding would
have been different. People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). To make


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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this showing, defendant must overcome a strong presumption that counsel’s actions were the
product of sound trial strategy. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).
Defendant also bears the burden of proving the factual predicate of his claim. People v Hoag,
460 Mich 1, 6; 594 NW2d 57 (1999).

        “Decisions regarding what evidence to present and whether to call or question witnesses
are presumed to be matters of trial strategy. This Court will not substitute its judgment for that
of counsel regarding matters of trial strategy, nor will it assess counsel’s competence with the
benefit of hindsight.” People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999)
(internal citations omitted). The failure to call particular witnesses or present other evidence
constitutes ineffective assistance only if it deprives the defendant of a substantial defense.
Russell, 297 Mich App at 716. “A substantial defense is one that might have made a difference
in the outcome of the trial.” People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009).

        In this case, the defense presented at trial was that defendant did not wield a pipe at the
Durrah brothers, but that instead Billingsley approached the victims with the pipe. In support of
this theory, defense counsel elicited testimony from Doreen Jackson who testified that she was
present for the entire fight and, although defendant had possession of a pipe at some point, the
Durrah brothers had returned to their home before defendant obtained the pipe and it was instead
Billingsley who went after the victims with a pipe. Counsel argued that Jackson should be
believed because she was the “one person in this case that doesn’t have an axe to grind . . . [she]
appears to be the one neutral witness.” In contrast, defense counsel argued that the Durrah
brothers were not credible because they had a motive to lie and their testimony did not comport
with other physical evidence.

       In comparison to the defense presented at trial, defendant now claims that evidence of his
mental illness would somehow have established that when he wielded a pipe he did so with an
innocent intent and his actions were for some reason simply misunderstood by witnesses at the
scene. As an initial matter, we are not persuaded that defendant has demonstrated the factual
predicate of his claim. That is, although defendant states that he has been diagnosed with bi-
polar syndrome and ADHD, he offers no information regarding his symptoms and no expert
testimony on these conditions, meaning he offers us no reason to suppose that he acted
innocently but, as a result of his diagnoses, his conduct was simply misconstrued as threatening.2
Given that defendant has not provided an adequate explanation of this proposed defense, we
cannot conclude that defendant was denied a substantial defense.



2
  For example, in People v Yost, 278 Mich App 341, 349, 357-358; 749 NW2d 753 (2008), on
which defendant relies on appeal, the trial defense counsel attempted to introduce evidence of the
defendant’s limited intellectual capacity to explain how the defendant’s intellectual capacity
affected the defendant’s ability to communicate, which was relevant to providing context for her
behavior and remarks reported by various witnesses. In that case, however, unlike in the present
case, the defense counsel had expert testimony to support his theories. See id. at 349. Here,
defendant points to the bare fact of his diagnoses without support for his claim that such
diagnoses are relevant to a substantial defense.


                                                -7-
        Furthermore, the defense now proposed by defendant involves the admission that
defendant in fact wielded the pipe at the victims, and it is therefore wholly inconsistent with the
defense assertion at trial that Billingsley, not defendant, approached the victims with the pipe.
While potentially defendant could have advanced inconsistent defenses, see People v Lemons,
454 Mich 234, 245; 562 NW2d 447 (1997), on the record presented, we see nothing ineffective
in counsel’s strategic decision to focus on the assertion that defendant took no action with the
pipe toward the Durrah brothers rather than to potentially confuse the jury by suggesting in the
alternative that defendant might have wielded the pipe innocently. Cf. People v LaVearn, 448
Mich 207, 216 & n 11; 528 NW2d 721 (1995); Dunigan, 299 Mich App at 584. This seems
particularly true given that we are hard pressed to understand how defendant’s diagnoses would
have provided him with a defense to the crimes charged, while in contrast he had the support of
Jackson’s testimony in claiming that he did not wield the pipe in a threatening manner. On the
record presented, defendant was not denied a substantial defense and he has not overcome the
presumption that defense counsel’s failure to introduce the omitted evidence was a matter of
sound trial strategy.

       Affirmed.



                                                            /s/ Joel P. Hoekstra
                                                            /s/ Jane E. Markey
                                                            /s/ Pat M. Donofrio




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