                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    September 13, 2018
                Plaintiff-Appellee,

v                                                                   No. 338952
                                                                    Van Buren Circuit Court
NEHEMIAH MILES MARTIN,                                              LC No. 17-020841-FH

                Defendant-Appellant.


Before: MURRAY, C.J., and CAMERON and LETICA, JJ.

PER CURIAM.

       Defendant appeals his jury convictions of unlawfully taking possession of and driving
away a motor vehicle, MCL 750.413, and receiving or concealing a stolen motor vehicle, MCL
750.535(7). Defendant was sentenced as a second-offense habitual offender, MCL 769.10, to
163 days in jail for the unlawfully taking possession of and driving away a motor vehicle
conviction, and 163 days in jail for the receiving or concealing a stolen motor vehicle conviction.
Defendant raises two issues on appeal. First, defendant challenges whether there was sufficient
evidence presented at trial to prove the requisite intent elements of each charge beyond a
reasonable doubt. Second, defendant challenges whether he received effective assistance of
counsel due to his trial counsel’s failure to object or move for a mistrial following the testimony
of a police officer who referenced defendant’s exercise of his right to remain silent. Both
arguments are without merit, and therefore, we affirm.

        Defendant’s convictions arise from a vehicle stolen on November 28, 2016. That
evening, the victim drove his vehicle to a hardware store. He entered the store, leaving the
vehicle running while he shopped inside. The vehicle was gone when he exited the store.
Several days later, defendant was arrested while in possession of the vehicle. The arresting
officer read defendant his Miranda1 warnings, and defendant chose to remain silent.




1
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


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        Defendant first claims that there was insufficient evidence to support his convictions. A
defendant’s challenge to the sufficiency of the evidence is reviewed de novo. People v
Henderson, 306 Mich App 1, 8; 854 NW2d 234 (2014). All evidence is viewed in the light most
favorable to the prosecution and we must determine “whether any rational trier of fact could
have found that the essential elements of the crime charged were proven beyond a reasonable
doubt.” People v Lundy, 467 Mich 254, 257; 650 NW2d 332 (2002). “[C]ircumstantial evidence
and reasonable inferences arising from that evidence can constitute satisfactory proof of the
elements of a crime.” People v McKinney, 258 Mich App 157, 165; 670 NW2d 254 (2003)
(quotation marks and citation omitted; alteration in original). “It is for the trier of fact, not the
appellate court, to determine what inferences may be fairly drawn from the evidence and to
determine the weight to be accorded those inferences.” People v Hardiman, 466 Mich 417, 428;
646 NW2d 158 (2002). Moreover, this Court will not interfere with the jury’s role of “decid[ing]
the weight and credibility to be given to [a witness’s] testimony.” Id. at 431 (quotation marks
and citation omitted).

        The elements of unlawfully taking possession of and driving away a motor vehicle, MCL
750.413, are: “(1) possession of a vehicle, (2) driving the vehicle away, (3) that the act is done
wilfully, and (4) the possession and driving away must be done without authority or permission.”
People v Hendricks, 200 Mich App 68, 71; 503 NW2d 689 (2003). Additionally, the
“[d]efendant must have intended to take unlawful possession of the vehicle and drive or take it
away, knowing that he had no authority to do so.” People v Crosby, 82 Mich App 1, 2; 266
NW2d 465 (1978).

        Pursuant to MCL 750.535(7), “[a] person shall not buy, receive, possess, conceal, or aid
in the concealment of a stolen motor vehicle knowing, or having reason to know or reason to
believe, that the motor vehicle is stolen, embezzled, or converted.” Thus, to prove that defendant
is guilty of receiving or concealing a stolen motor vehicle, the prosecution must prove the
following elements beyond a reasonable doubt:

               (1) That some property was stolen.

              (2) The defendant bought, received, possessed, concealed, or aided in the
       concealment of that property.

               (3) The defendant knew or had reason to know or reason to believe that
       the property was stolen when he bought, received, possessed, concealed, or aided
       in the concealment of it.

               (4) That the property was a motor vehicle. [See M Crim JI 26.1.]

The trial court’s instructions were consistent with the Model Criminal Jury Instructions.




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        “Guilty knowledge, as with most states of mind, cannot generally be proved by direct
evidence absent admission by the defendant.” People v Westerfield, 71 Mich App 618, 621; 248
NW2d 641 (1976). Rather, “it must usually be inferred from all of the various circumstances of
the case.” Id. “Guilty knowledge means not only actual knowledge, but also constructive
knowledge through notice of facts and circumstances from which guilty knowledge may be
inferred.” People v Scott, 154 Mich App 615, 617; 397 NW2d 852 (1986).

        In this case, police found defendant in possession of the stolen vehicle five days after it
was reported stolen. According to the patrol officer, defendant had “no response” when
informed that he was driving a stolen vehicle. Evidence admitted at trial included items found
inside the car and surveillance footage from the Blue Chip Casino. Additionally, defendant’s
own testimony established that he was in possession of the stolen vehicle as early as December
1, 2016, three days after it was reported stolen. Registration documents that listed the lawful
owner of the vehicle were present in the vehicle the entire time defendant had possession of it.
Although this evidence is circumstantial, circumstantial evidence and reasonable inferences can
be sufficient to prove the elements of a crime. See McKinney, 258 Mich App at 165. Although
defendant challenges the strength of this evidence, this Court will not interfere with the jury’s
role of determining the weight of the evidence or credibility of witnesses. See id. Reviewing the
evidence in the light most favorable to the prosecution, we find that a rational trier of fact could
have concluded beyond a reasonable doubt that defendant unlawfully took possession of and
drove away a motor vehicle within the meaning of MCL 750.413, and received or concealed a
stolen motor vehicle within the meaning of MCL 750.535(7).

        Defendant next claims that he was denied the effective assistance of counsel. “Whether a
defendant received ineffective assistance of trial counsel presents a mixed question of fact and
constitutional law.” People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011). We
review factual findings, if any, for clear error. Id. We review questions of constitutional law de
novo. Id. When, as in this case, the trial court has not held a Ginther2 hearing, our review is
limited to “errors apparent on the record.” People v Knapp, 244 Mich App 361, 385; 624 NW2d
227 (2001).

        A defendant claiming ineffective assistance of counsel must demonstrate that (1)
“counsel’s performance was deficient” and (2) “the deficient performance prejudiced the
defense.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001) (quotation marks and
citation omitted). To prove that counsel’s performance was deficient, defendant must show that
counsel’s performance fell “below an objective standard of reasonableness under prevailing
professional norms . . . .” People v Rice (On Remand), 235 Mich App 429, 444; 597 NW2d 843
(1999). Therefore, “defendant must overcome a strong presumption that the assistance of his
counsel was sound trial strategy.” Id. To prove that counsel’s performance prejudiced the
defense, defendant must show “a reasonable probability that, but for counsel’s error,” the
outcome of the trial would have been different. Carbin, 463 Mich at 600. “A reasonable




2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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probability is a probability sufficient to undermine confidence in the outcome.” Id. at 600
(quotation marks and citation omitted).

       Defendant claims that he was denied the effective assistance of counsel when defense
counsel failed to object to the prosecutor eliciting police testimony about defendant’s exercise of
his Miranda rights, and his subsequent failure to move for a mistrial. “Miranda warnings carry
an implicit assurance that silence in reliance on those warnings will not be penalized[.]” People
v Dennis, 464 Mich 567, 574; 628 NW2d 502 (2001) (quotation marks and citation omitted).
Thus, “[i]t is generally inappropriate for the prosecution to comment regarding an accused’s
exercise of the constitutional privilege against self-incrimination.” People v Truong, 218 Mich
App 325, 336; 553 NW2d 692 (1996).

        Defendant’s claim arises from the prosecutor’s direct examination of Deputy Chris Smith
of the Dickinson County Sheriff’s Office. During the direct examination, Deputy Smith
specifically stated that defendant was read his Miranda warnings and chose to remain silent. At
the end of the prosecution’s examination of Deputy Smith, the trial court, sua sponte, provided a
curative instruction, instructing the jury not to infer anything from defendant’s decision to
remain silent. Defense counsel found the curative instruction sufficient to address the references
to defendant’s silence.

        Defense counsel’s decision not to object or move for a mistrial could have been trial
strategy. “[T]here are times when it is better not to object and draw attention to an improper
comment.” People v Unger, 278 Mich App 210, 242; 749 NW2d 272 (2008) (quotation marks
and citation omitted). Defense counsel could have reasonably believed that objecting to Deputy
Smith’s testimony would have drawn greater attention to the subject and therefore increased its
negative impact. We do not “second-guess counsel regarding matters of trial strategy . . . .” Rice
(On Remand), 235 Mich App at 445. Moreover, defense counsel could have reasonably
concluded that an objection was not necessary. The references to defendant’s silence came
exclusively from Deputy Smith’s nonresponsive answers to the prosecutor’s questions, to which
the trial court quickly provided a curative instruction. “Curative instructions are sufficient to
cure the prejudicial effect of most inappropriate prosecutorial statements, and jurors are
presumed to follow their instructions.” Unger, 278 Mich App at 235 (citations omitted).

         Even if we were to assume that defense counsel’s performance was deficient, defendant
cannot prove that, but for counsel’s failure to object or move for a mistrial, the outcome of the
trial would have been different. See Carbin, 463 Mich at 600. First, there was sufficient
evidence presented at trial for the jury to reasonably conclude that the defendant unlawfully took
the vehicle. Defendant was found in possession of the vehicle shortly after it was stolen.
Evidence presented at trial, as well as defendant’s own testimony, established that defendant was
in possession of the vehicle for several days before he was pulled over by police. Defendant
testified as to his own version of events, and the jury was free to find that defendant’s testimony
lacked credibility. See Hardiman, 466 Mich at 428. Second, the trial court gave a curative
instruction shortly after the witness testified that defendant had exercised his right to remain
silent. The jurors are presumed to have followed this instruction and to not have inferred
anything from the fact that defendant chose to remain silent. See Unger, 278 Mich App at 235.
This instruction was therefore sufficient to cure any prejudicial effect that Deputy Smith’s
comments may have otherwise had. See id. For the foregoing reasons, defendant cannot show

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that the outcome of the trial would have been different if defense counsel had objected or moved
for a mistrial. Therefore, we find that defendant was not denied the effective assistance of
counsel.

       Affirmed.



                                                           /s/ Christopher M. Murray
                                                           /s/ Thomas C. Cameron
                                                           /s/ Anica Letica




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