                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    February 16, 2017
               Plaintiff-Appellee,

v                                                                   No. 329963
                                                                    Kent Circuit Court
ORLANDO DESHAUN VANCE,                                              LC No. 14-012006-FH

               Defendant-Appellant.


Before: MURPHY, P.J., and SAWYER and SWARTZLE, JJ.

PER CURIAM.

        Following a jury trial, the trial court convicted defendant of domestic assault, second
offense, MCL 750.81(3), and assault by strangulation, MCL 750.84(1)(b). Defendant appeals as
of right, challenging only his conviction of assault by strangulation, for which the trial court
sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 2 to 20 years’
imprisonment. We affirm.

        This case arises out of a December 8, 2014 altercation between defendant and the victim,
with whom defendant had been dating for approximately two years. From October 2014 to
December 2014, defendant spent nearly every night at the victim’s home, where the victim and
her two children lived. On the day in question, the victim received a phone call from a male
friend. This phone call eventually caused an argument later that evening between defendant and
the victim, which ended with the defendant grabbing the victim by the collar of her sweatshirt
and forcibly holding her down. As a result of this incident, the victim decided to leave the house
for the night with her children.

        At trial, the victim testified that, as she was getting ready to leave the home, defendant
approached her a second time and “choked” her. The victim continued that, while defendant was
“choking” her, he told her that he would “beat [her] bloody” and “kill [her] if that’s what [she]
wanted.” The victim stated that defendant had one hand on each side of her neck and that she
was not able to talk or breathe normally. The victim added that defendant was “squeezing hard,”
and that the pressure caused her tongue to come out of her mouth. At the time of the incident,
the victim believed it lasted for one minute; however, she testified at trial that it likely lasted
closer to five or six seconds.



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        In his opening statement, defense counsel admitted that defendant committed two acts of
domestic assault. Defense counsel stated that the first of these incidents occurred, as the victim
described, when defendant forcibly held the victim down by her shirt. Concerning the second
incident, defense counsel stated that defendant committed a domestic assault when the victim
was leaving the house but that defendant did not choke the victim. Rather, defense counsel
argued that, as the victim was walking down the stairway, defendant “grabbed her by the left side
of the neck, not the throat” and pushed her against the wall, “basically . . . saying get out of here
now or I’m going to lose my temper.” The jury found defendant guilty of both domestic assault
and assault by strangulation.

       On his first claim, defendant argues that the trial court committed reversible error by
allowing testimony from the victim and her mother concerning defendant’s alleged previous
domestic violence against the victim. We disagree.

        The trial court admitted the challenged testimony under MCL 768.27b, which provides,
in pertinent part:

               (1) Except as provided in subsection (4), in a criminal action in which the
       defendant is accused of an offense involving domestic violence, evidence of the
       defendant’s commission of other acts of domestic violence is admissible for any
       purpose for which it is relevant, if it is not otherwise excluded under Michigan
       rule of evidence 403.

“Causing or attempting to cause physical or mental harm” to “[a]n individual with whom the
person resides or has resided” or to “[a]n individual with whom the person has or has had a
dating relationship” is an act of domestic violence. MCL 768.27b(5)(a)(i), (b)(ii), (b)(iv). Under
this statutory definition, an act of domestic violence does not have to be an act for which the
defendant was charged with, or convicted of, a crime.

        The victim and her mother testified that defendant had previously choked or otherwise
physically assaulted the victim and that defendant threw the victim out of her home without
proper clothing in the middle of winter on one occasion. These events all occurred within the
two years preceding the incident and defendant was given proper notice under MCL 768.27b(2)
of the prosecutor’s intent to introduce that evidence. Defendant’s only argument on appeal is
that this evidence was inadmissible because it was either not relevant under MRE 401 or was
unfairly prejudicial under MRE 403.

        Relevant evidence is “evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” MRE 401. MRE 403 provides that, “[a]lthough relevant,
evidence may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” Unfairly prejudicial
evidence “inject[s] considerations extraneous to the merits of the lawsuit” such as “bias,
sympathy, anger, or shock” into the jury’s decision-making. People v McGhee, 268 Mich App
600, 614; 709 NW2d 595 (2011) (quotation marks and citation removed). Regarding evidence
of a defendant’s prior bad acts, the more dissimilar, infrequent, and distant the bad acts are from

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the charged crime, the more likely the evidence of the bad acts is unfairly prejudicial. See
People v Watkins, 491 Mich 450, 487-488; 818 NW2d 296 (2012).

        Defendant argues that this challenged evidence was not relevant or was unduly
prejudicial because his admission through defense counsel’s opening statement extinguished all
factual issues save for whether defendant strangled the victim. Defendant, however,
mischaracterizes the role of a jury in a criminal case. In a criminal case, to find a defendant
guilty, the jury must find that the prosecution proved every element of the charged offense
beyond a reasonable doubt. See People v Nowack, 462 Mich 392, 399-400; 614 NW2d 78
(2000). The statements of counsel are not evidence, see M Crim JI 3.5(5), and, even if defendant
had stipulated that he assaulted the victim, which he did not, the trial court could not require the
to accept that stipulation, see M Crim JI 4.7. Accordingly, triable issues of fact existed for the
jury concerning not only whether defendant strangled the victim but also whether defendant
assaulted the victim.

       Further, as to relevance, the challenged evidence of defendant’s prior domestic violence
against the victim tended to make more probable that defendant assaulted the victim and that
defendant intentionally choked the victim. Accordingly, the evidence was relevant under MRE
401. Regarding prejudice, the challenged testimony was that defendant previously choked,
physically assaulted, and kicked the victim out of the home. These events were similar to and
occurred within two years of the assault at issue. Accordingly, the evidence was not unduly
prejudicial under MRE 403.

        Therefore, we conclude that the trial court did not err by admitting the challenged
testimony under MCL 768.27b. Because this evidence was admissible under MCL 768.27b, we
also reject defendant’s claim that defense counsel was constitutionally ineffective for failing to
object to its admission. “Counsel is not ineffective for failing to make a futile objection.”
People v Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004).

       Next, defendant argues that there was insufficient evidence for the trial court to convict
him of assault by strangulation. Again, we disagree.

       “This Court reviews de novo defendant’s challenge to the sufficiency of the evidence.”
People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). In reviewing sufficiency of
the evidence claims, this Court views the evidence in the light most favorable to the prosecutor
and determines whether a rational trier of fact could find that the essential elements of the crime
were proved beyond a reasonable doubt. Nowack, 462 Mich at 399-400. In making this
determination, this Court must also “draw all reasonable inferences and make credibility choices
in support of the jury verdict.” Id. at 400.

         In this case, sufficient evidence existed to convict defendant of assault by strangulation if
a reasonable jury could find beyond a reasonable doubt that defendant attempted or threatened
“to do corporal harm,” People v Blevins, 314 Mich App 339, 357; 886 NW2d 456 (2016), by
“intentionally impeding normal breathing or circulation of the blood by applying pressure on the
throat . . . of another person,” MCL 750.84(2).



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         On this issue, defendant’s sole argument on appeal appears to be that variations between
the victim’s written statement after the incident, her interview with police, and her testimony at
trial render the evidence insufficient to convict defendant. Nonetheless, we have long held that
determinations of witness credibility are the function of the jury, not this Court. People v Wolfe,
440 Mich 508, 514-515; 489 NW2d 748 (1992).

        At trial, the victim testified that that defendant “put both hands around [her] neck,” that
“he was squeezing” so hard that she was not able to talk or breathe normally, and that this
pressure caused her tongue to come out of her mouth. The victim’s testimony alone was
therefore sufficient for a reasonable jury to find defendant guilty of an assault by strangulation.
The properly admitted evidence of defendant’s previous domestic violence towards the victim,
the testimony of other witnesses, and properly admitted photographs depicting marks on the
victim’s neck bolster this testimony. Therefore, viewing the evidence in the light most favorable
to the prosecution, we conclude that sufficient evidence existed for a reasonable jury to convict
defendant of assault by strangulation.

       Affirmed.




                                                            /s/ William B. Murphy
                                                            /s/ David H. Sawyer
                                                            /s/ Brock A. Swartzle




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