            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 14, 2019
               Plaintiff-Appellee,

v                                                                    No. 340711
                                                                     Allegan Circuit Court
LANCE WILLIAM RUIMVELD,                                              LC No. 16-020342-FH

               Defendant-Appellant.


Before: RIORDAN, P.J., and MARKEY and LETICA, JJ.

PER CURIAM.

        Defendant appeals by right his jury-trial conviction of three counts of resisting and
obstructing a police officer, MCL 750.81d(1), and one count of malicious destruction of police
property, MCL 750.377b. On appeal, defendant argues that the trial court abused its discretion
and violated his constitutional due process rights by denying him the ability to present evidence
of a substantial defense, i.e., evidence that he was undergoing chemotherapy treatment and might
have been suffering from “chemo rage” or “chemo brain” when he committed the crimes. In the
alternative, defendant contends that standby counsel was ineffective and “should have advised
his pro per client to challenge the trial court’s order [barring the evidence] and investigate if his
cancer had an impact on his behavior.” We affirm.

        Defendant had court-appointed counsel leading up to his trial, but on the first day of trial
and before the jury was impaneled, defendant asked the trial court for permission to represent
himself. The trial court placed defendant under oath and proceeded to extensively question him
about his decision, explaining at length the inherent risks involved in self-representation. The
trial court also advised defendant that if defendant so desired, his court-appointed attorney could
remain as a legal advisor for consultation, but the decision as to whether to accept any guidance
from the attorney would remain solely defendant’s. Defendant affirmatively and unequivocally
waived his right to counsel and accepted the court’s offer to have his court-appointed attorney
remain as standby counsel.

       During the colloquy between the trial court and defendant, the following exchange
occurred:
       The Court:      The other thing that I want you to be aware of is that I think the
                       Court was made aware at some point in the recent past that you
                       had cancer, that you were undergoing some treatment. I don’t
                       know and I assume they don’t know what the outcome of that
                       treatment was and how it might affect the rest of your life. Again,
                       there is no relevant issue here in this case concerning your cancer.
                       The jurors are not to be informed of your cancer or your treatment
                       or the prognosis, diagnosis or any other feature of the treatment or
                       that condition, because the only—that doesn’t have a bearing on
                       whether you’re guilty or innocent of 3 different counts of [resisting
                       and obstructing] on September 4, 2016 in Gunplain Township and
                       it has nothing relevant to offer on the malicious destruction of fire
                       or police property. It would only be useful to the jury to know that
                       in order to generate sympathy in the hopes that might affect the
                       outcome of their deliberations and determination on guilt or
                       innocence. It’s improper for that purpose to inform them of your
                       condition. The prosecutor won’t do that and you won’t do that.
                       Same rule for both parties, just as it’s the same rule for both parties
                       that there won’t be any discussion or mention of penalties. Do you
                       understand what I’m saying there?

       Defendant:      Because that would generate a mistrial?

       The Court:      It could. Do you agree to abide by those instructions?

       Defendant:      Certainly.

       The Court:      And you’ll avoid all discussion, whether through a witness you call
                       or yourself testifying or make arguments to the jury during voir
                       dire, opening or closing at all times through the entire trial there’s
                       to be no mention of penalties and no mention of the cancer
                       diagnosis or treatment or prognosis. Understood?

       Defendant:      Yes, sir.

       The Court:      And you agree.

       Defendant:      I do.

        Defendant first argues on appeal that the trial court abused its discretion and violated his
constitutional due process rights by denying him the ability to present evidence that he was
undergoing chemotherapy treatment and might have been suffering from “chemo rage” or
“chemo brain” when he committed the crimes. Defendant maintains that this evidence was
highly relevant in explaining his belligerent, bizarre, and uncooperative behavior when
confronted by and dealing with the police. Defendant contends that the chemotherapy-related
evidence would have negated the “intent” element of the crimes.



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       As reflected in the discussion between the trial court and defendant quoted above,
defendant plainly waived any argument challenging the exclusion of chemotherapy-related
evidence. Waiver is the intentional relinquishment or abandonment of a known right, and a party
who waives his or her rights under a rule cannot then seek appellate review of a claimed
deprivation of those rights, because the waiver has extinguished any error. People v Carter, 462
Mich 206, 215; 612 NW2d 144 (2000). Moreover, even if reviewed under forfeiture analysis,
there was no plain error affecting defendant’s substantial rights. People v Carines, 460 Mich
750, 763-764; 597 NW2d 130 (1999).

        To the extent that defendant is arguing that he was denied a diminished capacity defense,
we note that is no longer a viable defense in Michigan. People v Carpenter, 464 Mich 223, 241;
627 NW2d 276 (2001) (“[T]he Legislature has signified its intent not to allow evidence of a
defendant’s lack of mental capacity short of legal insanity to avoid or reduce criminal
responsibility by negating specific intent.”). Additionally, “[r]esisting and obstructing a police
officer . . . is not a specific intent crime.” People v DeLong, 128 Mich App 1, 3; 339 NW2d 659
(1983).

       Although not mentioned in defendant’s brief, the nature of his argument pertains to
voluntary intoxication. MCL 768.37 provides:

               (1) Except as provided in subsection (2), it is not a defense to any crime
       that the defendant was, at that time, under the influence of or impaired by a
       voluntarily and knowingly consumed alcoholic liquor, drug, including a
       controlled substance, other substance or compound, or combination of alcoholic
       liquor, drug, or other substance or compound.

              (2) It is an affirmative defense to a specific intent crime, for which the
       defendant has the burden of proof by a preponderance of the evidence, that he or
       she voluntarily consumed a legally obtained and properly used medication or
       other substance and did not know and reasonably should not have known that he
       or she would become intoxicated or impaired.

        Subsection (2) of MCL 768.37 could potentially lend some support for defendant’s
position but only in regard to the malicious destruction offense, which is a specific intent crime.
People v Culp, 108 Mich App 452, 458; 310 NW2d 421 (1981). Moreover, on the existing
record, it is impossible to conclude that the affirmative defense of voluntary intoxication had any
application to defendant’s case. He makes no attempt to describe with any specificity what type
of treatment he received or its nature, duration, and effects, let alone supply supporting evidence
on those matters. Further, defendant fails to indicate that he properly used the medication, or
that he did not know or reasonably would not have known about possible resulting intoxication
or impairment, assuming such effects. Instead, defendant simply argues, without citation to any
supporting evidence or authorities, that “[t]his Court should remand so that an analysis can be
done as to whether he was suffering from the effects of steroids in his chemotherapy or brain




                                                -3-
swelling from chemotherapy.”1 “An appellant's failure to properly address the merits of his
assertion of error constitutes abandonment of the issue.” People v Smart, 304 Mich App 244,
251; 850 NW2d 579 (2014) (quotation marks omitted). Neither reversal nor remand is
warranted.

         Finally, we reject defendant’s associated argument of ineffective assistance of counsel.
In the absence of a constitutional right to standby counsel, a defendant who chooses to represent
himself does so at his own peril and has no basis to claim that the standby attorney must abide by
constitutional standards. People v Kevorkian, 248 Mich App 373, 424; 639 NW2d 291 (2001).
Accordingly, defendant’s argument that standby counsel should have advised him to challenge
the trial court’s order barring chemotherapy-related evidence lacks merit.

        Defendant also contends that counsel was ineffective for failing to investigate whether
defendant’s cancer had an impact on his behavior. This argument concerns a timeframe before
the trial when counsel was not yet merely standby counsel; he still fully represented defendant.
Because defendant did not file a motion for a new trial or a Ginther2 hearing in the trial court,
this Court’s review is limited to mistakes apparent on the record. See People v Sabin (On
Second Remand), 242 Mich App 656, 658-659; 620 NW2d 19 (2000). “If review of the record
does not support the defendant's claims, he has effectively waived the issue of effective
assistance of counsel.” Id. at 659. We also note that a defendant has the burden to prove the
factual predicate supporting a claim of ineffectiveness assistance of counsel. People v Hoag, 460
Mich 1, 6; 594 NW2d 57 (1999).

        Defendant has not established the factual predicate for his claim of ineffective assistance
of counsel because he has failed to identify anything in the record that supports his
chemotherapy-related assertions. There is no evidence in the record related to defendant’s
cancer diagnosis, his chemotherapy treatment, or the potential effects of his treatment on
defendant. Defendant’s argument on appeal is comprised entirely of speculation and conjecture.
We have no basis to conclude that trial counsel failed in his duty to make a reasonable
investigation. See People v Ackley, 497 Mich 831; 870 NW2d 858 (2015). So, consequently,
defendant has failed to satisfy his burden of showing deficient performance by counsel or
prejudice. People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001).

         We affirm.

                                                            /s/ Michael J. Riordan
                                                            /s/ Jane E. Markey
                                                            /s/ Anica Letica


1
  We also note that the basis for defendant’s contentions concerning the purported “recognized”
medical effects of cancer treatment as including “chemo brain” or “chemo rage” is the website of
a for-profit company based out of the United Kingdom that markets health products to cancer
patients. This is neither evidence nor a valid basis to rule in defendant’s favor.
2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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