            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 26, 2019
              Plaintiff-Appellee,

v                                                                  No. 337133
                                                                   Wayne Circuit Court
FIDEL KINSEY,                                                      LC No. 16-005351-01-FH

              Defendant-Appellant.


Before: GLEICHER, P.J., and K. F. KELLY and LETICA, JJ.

PER CURIAM.

       Defendant appeals as of right his bench trial convictions of first-degree home invasion,
MCL 750.110a(2), and domestic violence, MCL 750.81(2). Defendant was sentenced, as a third
habitual offender, MCL 769.11, to 5 to 20 years’ imprisonment for the first-degree home
invasion conviction, and 27 days, time served, for the domestic violence conviction. We affirm.

                                       I. BASIC FACTS

       This case arises out of a home invasion that took place on April 4, 2016, at Janice
Carter’s (“Carter”) apartment in Detroit. Prior to the home invasion, defendant and Carter dated
and had a son together, MK. After the relationship ended, Carter had custody of MK, but would
allow defendant to visit. On March 27, 2016, Carter told defendant that he could no longer visit
MK.

        On April 4, 2016, Carter was at her apartment with her friend Roger and MK. Carter and
Roger were sitting on the couch when she heard a knock on the front door. Carter went to the
door, looked through the peephole, and saw defendant in the hallway. Carter told Roger to go
into her bedroom to avoid a confrontation with defendant. Carter opened the door and stepped
into the hallway to speak with defendant. As Carter closed the door behind her, she kept her cell
phone in one hand and the other hand on the doorknob.

       Carter told defendant to leave. Defendant yelled at her about why she did not answer his
phone calls and why she still had his phone number blocked. Carter and defendant continued to
yell and swear at each other. Then defendant grabbed Carter by her shoulders and pushed her
through the front door and onto a couch inside the apartment. The front door opened because
Carter held the doorknob in such a way that the latch did not close. Carter stood up from the
couch and hit defendant, who was standing over her. Defendant then pushed her onto a second
couch. When Carter stood up from the second couch, defendant grabbed her neck with both
hands and squeezed. Defendant screamed for MK. MK came to his bedroom door, screamed,
and ran toward defendant. Defendant let go of Carter’s neck.

       Carter called the Wayne State Police Department from her cell phone and said that she
needed an officer to come to her apartment. Defendant heard Carter call the police and left.
Carter went to a window and watched defendant run to his car and leave. During this incident,
Roger never came out of Carter’s bedroom.

        Defendant testified to a very different version of events in which Carter invited him into
her apartment to discuss defendant’s lack of financial support. Defendant denied forcing his way
into the apartment or assaulting Carter.

        The trial court found defendant guilty as outlined above. He now appeals by right,
arguing that he received ineffective assistance of counsel, that he did not validly waive his right
to a jury trial, and that the evidence was insufficient to support his convictions.

                        II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant argues that defense counsel was ineffective for failing to obtain an exculpatory
witness, failing to ensure that the entire 911 recording was played in the trial court, and failing to
obtain Carter’s prior sworn testimony for impeachment. We disagree.

         To preserve a claim of ineffective assistance of counsel, a defendant must move for a new
trial or a Ginther1 hearing in the trial court. People v Payne, 285 Mich App 181, 188; 774 NW2d
714 (2009). Defendant made a motion for a new trial in the trial court, but the trial court did not
hold a Ginther hearing. Therefore, this Court’s review is limited to what is contained in the
record. People v Rockey, 237 Mich App 74, 77; 601 NW2d 887 (1999). Whether defendant
received the effective assistance of counsel is a question of law that is reviewed de novo. People
v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).

       “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


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


                                                 -2-
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 first argues that defense counsel was ineffective because counsel failed to
secure the neighbor that lived across the hall from Carter as a witness. “Trial counsel’s failure to
a call a witness is only considered ineffective assistance if it deprived the defendant of a
substantial defense.” People v Putman, 309 Mich App 240, 248; 870 NW2d 593 (2015). “A
substantial defense is one that could have affected the outcome of the trial.” Id. A decision
regarding whether to call a witness is presumed to be a matter of trial strategy. People v Russell,
297 Mich App 707, 716; 825 NW2d 623 (2012). “We will not second-guess counsel on matters
of trial strategy, nor we will [sic] assess counsel’s competence with the benefit of hindsight.”
People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). Defendant alleges that this
witness would provide exculpatory evidence that Carter invited defendant into the apartment and
that there was no argument in the hallway. However, defendant failed to provide any
information about the witness who would provide this purportedly exculpatory testimony, such
as the witness’s name, if the witness was in her apartment at the time of the assault, or what the
witness would have stated. Defendant asserts, without supporting facts, that because Carter had
a neighbor, that neighbor must have heard what happened in the hallway.

        Defendant also has failed to establish the factual predicate that defense counsel could
have called the witness. See People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001)
(“[T]he defendant necessarily bears the burden of establishing the factual predicate for his
claim.”) At the postconviction hearing, 2 defendant’s appellate attorney stated that he was unsure
whether defense counsel had done anything to find the witness. Defendant’s argument rests on
the inference that because the witness was not called, trial counsel must not have tried to find the
witness. However, nothing in the record supports this inference. All the record shows is that the
neighbor was not called as a witness, and that defendant’s appellate counsel was not able to find
the witness.

        Even assuming that defense counsel’s failure to call the witness was objectively
unreasonable, defendant has not demonstrated that a different outcome would be reasonably
probable. The trial court found Carter’s testimony more credible than defendant’s, especially in
light of defendant’s prior domestic violence conviction for strangling another woman, and it is
not reasonably probable that the neighbor’s testimony would have altered the result. Therefore,
defense counsel’s failure to call the witness was not ineffective assistance of counsel.

        Defendant next argues that defense counsel was ineffective for failing to ensure that the
entire 911 recording was played for the trial court. Defendant states that the beginning of the
recording was not played, and that portion was exculpatory. However, the record suggests that


2
  The postconviction hearing was the result of defendant’s motion for new trial. Defendant
appeared by video and was allowed to speak at the hearing.


                                                -3-
the entire recording was played. Before the recording was played, defense counsel stated that he
listened to the recording prior to trial. The recording was then played. After the recording
finished playing, defense counsel did not object or state that a portion of the recording was not
played. Because the record does not indicate that a portion of the recording was not played,
defendant’s argument must fail.

         Defendant finally argues that defense counsel was ineffective for failing to obtain
Carter’s prior sworn testimony that would have aided in her impeachment. However, defendant
fails to articulate any information about Carter’s prior purported testimony or how it would have
been used to impeach her. Therefore, even if it was objectively unreasonable for defense counsel
to not obtain Carter’s testimony for impeachment, because defendant provided no information
regarding Carter’s testimony, this Court cannot say that the testimony was reasonably probable
to affect the outcome in defendant’s bench trial.

                        III. VALIDITY OF WAIVER OF JURY TRIAL

       Defendant next argues that his jury trial waiver was invalid because the trial court failed
to comply with MCR 6.402(B) and that defendant’s waiver was not made knowingly or
voluntarily. We disagree.

        This Court reviews a trial court’s determination that a defendant validly waived his right
to a jury trial for clear error. People v Williams, 275 Mich App 194, 197; 737 NW2d 797 (2007).

       As this Court stated in People v Cook, 285 Mich App 420; 776 NW2d 164 (2009):

       A criminal defendant has a constitutionally guaranteed right to a jury
       determination that he is guilty beyond a reasonable doubt. However, with the
       consent of the prosecutor and the approval of the trial court, a defendant may
       waive his right to a jury trial. In order for a jury trial waiver to be valid, however,
       it must be both knowingly and voluntarily made. [Id. at 422 (citations omitted).]

A trial court’s compliance with MCR 6.402(B) “creates a presumption that a defendant’s waiver
was voluntary, knowing, and intelligent.” People v Mosly, 259 Mich App 90, 96; 672 NW2d
897 (2003). MCR 6.402(B) states:

       Before accepting a waiver, the court must advise the defendant in open court of
       the constitutional right to trial by jury. The court must also ascertain, by
       addressing the defendant personally, that the defendant understands the right and
       that the defendant voluntarily chooses to give up that right and to be tried by the
       court. A verbatim record must be made of the waiver proceeding. [MCR
       6.402(B).]

         Defendant first argues that the trial court failed to comply with MCR 6.402(B).
However, defendant submitted a written and signed waiver of trial by jury to the trial court. The
waiver form stated that defendant was advised and understood that he had a constitutional right
to a trial by jury, he had an opportunity to consult with counsel, and the waiver occurred in open
court as required by law. Additionally, the trial court questioned defendant regarding whether he


                                                -4-
understood his right to a jury trial and whether defendant knowingly and voluntarily waived this
right. The questioning was as follows:

              The Court: All right. [Defendant] I have before me now a signed or
       seemingly signed waiver of trial by jury and election to be tried without a jury.
       I’m gonna hold that form up in my left hand. Is that your signature on the form?

               The Defendant: Yes, sir.

               The Court: And you understand what this means, right?

               The Defendant: I come in front of you.

              The Court: That’s right. You will. You have elected not to have a trial
       by jury, but to have a bench trial. And you understand that means I’m the only
       one making the decision about whether you’re guilty or not guilty. Do you
       understand?

               The Defendant: Yes, sir.

               The Court: All right. You’re okay with that?

               The Defendant: Yes, sir.

                The Court: All right. And you were the one that spoke up on this issue in
       the first place. But I still should ask you has anybody promised you anything or
       threatened you or twisted your arm in any way or even suggested that I’d give you
       a break if you waived your right to trial by jury and had a bench trial?

               The Defendant: No, sir.

The record is clear that the trial court advised defendant of his right to trial by jury, that the
defendant understood that right, and voluntarily gave up that right. Further, before the trial court
advised defendant of his right to trial by jury, defendant twice stated that he did not want a jury
trial. Therefore, the trial court complied with MCR 6.402(B).

       Defendant argues that his waiver was not knowingly made because he did not have the
opportunity to consult with counsel. Defendant was represented by counsel when he initiated the
discussion with the trial court about waiving his jury trial. After defendant initiated the
discussion about waiving his trial by jury, the trial court took a six minute break. During this
time, defendant could have discussed with counsel his decision to waive his right to a trial by
jury. The record does not indicate whether defendant actually discussed the waiver with defense
counsel. However, defendant had the opportunity to do so. Furthermore, the trial court
addressed defendant to ensure that defendant’s waiver was knowingly made. Therefore,
defendant’s argument is without merit, and the trial court did not clearly err in determining that
defendant knowingly waived his right to a trial by jury.



                                                -5-
         Defendant argues that the waiver was not voluntary because he only waived his right to a
jury trial to secure an adjournment to procure a witness. Defendant’s argument must fail
precisely because of his argument. Defendant voluntarily waived his right to trial by jury to
obtain a witness that was not present at the jury trial and to obtain new counsel. The trial court
accepted defendant’s waiver, adjourned the trial date, and appointed new counsel, which gave
defendant time to procure the witness. Defendant’s argument that the trial court coerced him
into waiving his right to a jury trial in order to obtain exactly what he wanted is without merit,
especially given that the trial court asked defendant if anyone “threatened you or twisted your
arm . . . [to] waive[] your right to trial by jury. . . .” Therefore, the trial court did not clearly err
in determining that defendant voluntarily waived trial by jury.

                             IV. SUFFICIENCY OF THE EVIDENCE

       Defendant finally argues that there was insufficient evidence to support his first-degree
home invasion conviction. We disagree.

        “This Court reviews de novo a challenge to the sufficiency of the evidence in a bench
trial. The evidence is viewed in a light most favorable to the prosecution to determine whether
the trial court could have found that the essential elements of the crime were proven beyond a
reasonable doubt.” People v Lanzo Const Co, 272 Mich App 470, 473-474; 726 NW2d 746
(2006).

       Defendant was convicted of first-degree home invasion, pursuant to MCL 750.110a(2),
which states:

        A person who breaks and enters a dwelling with intent to commit a felony,
        larceny, or assault in the dwelling, a person who enters a dwelling without
        permission with intent to commit a felony, larceny, or assault in the dwelling, or a
        person who breaks and enters a dwelling or enters a dwelling without permission
        and, at any time while he or she is entering, present in, or exiting the dwelling,
        commits a felony, larceny, or assault is guilty of home invasion in the first degree
        if at any time while the person is entering, present in, or exiting the dwelling
        either of the following circumstances exists:

        (a) The person is armed with a dangerous weapon.

        (b) Another person is lawfully present in the dwelling. [People v Baker, 288
        Mich App 378, 382; 792 NW2d 420 (2010), quoting MCL 750.110a(2).]

        Defendant argues that there was insufficient evidence because defendant testified that
Carter invited him into her apartment. “This Court will not interfere with the trier of fact’s role
of determining the weight of the evidence or the credibility of witnesses.” People v Kanaan, 278
Mich App 594, 619; 751 NW2d 57 (2008). Carter testified that she did not invite defendant into
her apartment, and instead defendant pushed her through the front door. Defendant testified that
Carter invited him into the apartment. The trial court found Carter’s “testimony that she came
out of the apartment to talk to him and did not invite him in to frankly be much more credible
than [defendant’s] version.” Because the trial court found Carter’s version of events to be more
credible, and viewing the evidence in the light most favorable to the prosecution, there was
                                                  -6-
sufficient evidence to support the trial court’s finding that defendant did not have permission to
enter Carter’s apartment.

         Defendant next argues that it is highly unlikely that if defendant assaulted Carter, Roger
would stay in her bedroom. Roger did not testify at trial, and no testimony was introduced
regarding why Roger did not intervene when defendant assaulted Carter. However, Carter
testified that she wanted Roger to go to her bedroom to avoid a confrontation with defendant. It
is reasonable to believe that Roger stayed in her bedroom to avoid any confrontation. The fact
that Roger stayed in the bedroom does not, by itself, negate the trial court’s determination that
defendant assaulted Carter.

        Defendant further argues that there was insufficient evidence of an assault because Carter
did not have visible injuries from the two pushes and choke. While visible injuries may support
the finding that an assault occurred, the lack of visible injuries does not necessarily mean an
assault did not occur. The trial court noted that Carter did not have “any residual or obvious
signs of assault,” yet still determined that Carter’s testimony was sufficient evidence that
defendant assaulted her.

       Because the trial court found Carter’s testimony that defendant pushed her through the
apartment door and then assaulted her in the apartment to be credible, there was sufficient
evidence to support defendant’s first-degree home invasion conviction.

       Affirmed.

                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Anica Letica




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