                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    April 18, 2017
               Plaintiff-Appellee,

v                                                                   No. 331178
                                                                    Kent Circuit Court
SHAWNN TEKALU MAYBERRY,                                             LC No. 14-007173-FC

               Defendant-Appellant.


Before: BECKERING, P.J., and MARKEY and SHAPIRO, JJ.

PER CURIAM.

       Defendant appeals by right his conviction of armed robbery, MCL 750.529. We affirm.

       At 2:43 a.m. on July 8, 2014, a man carrying a gun and wearing a nylon mask, black
hoodie, dark pants, and light gloves entered a shell gas station at 2600 East Beltline in Grand
Rapids. The gas station was empty except for the clerk who was cleaning the bathroom. The
man gave the clerk a bag and ordered her to go to the cash register and empty it into the bag.
The clerk walked over to the register, and the man ducked behind the counter next to her.
Shortly thereafter, a customer walked into the gas station. The clerk quickly emptied out the
remaining contents of the cash register and handed the bag to the man, who took the bag and
fled. The clerk locked the door behind him and called 911. Todd Wuis, a canine officer with the
Grand Rapids Police Department (GRPD), responded with his tracking dog, Boris. Boris tracked
the man’s scent to a parking lot. Officer Wuis thought it likely that the man had gotten into a car
and that was why Boris could no longer track his scent.

       Six days later, on July 14, 2014, at 6:12 a.m., a Shell gas station in Norton Shores was
robbed in a similar fashion to the one at 2600 East Beltline: the robber entered the gas station
with a gun and wearing a mask, gloves, and a black hoodie over his head. The robber walked up
to where the clerk was, ordered the clerk to open the register and give him the money, went
behind the register, grabbed some cigarettes, and put the money and cigarettes into a backpack.
While the robber was leaving, the clerk pulled a gun out from behind the counter and shot at the
robber. The robber quickly ran out the door and into a waiting vehicle, later identified as a 2010-
2014 Hyundai Sonata. While fleeing, the suspect lost a shoe.

        Detective Kyle Neher with the Norton Shores Police Department was assigned to
investigate the July 14 robbery. After details of the investigation were reported in the media, an
Ottawa County Sheriff’s deputy contacted Detective Neher. The deputy reported to Detective
                                                -1-
Neher that at 4:24 a.m. on July 14, she stopped a 2013 black Hyundai Sonata with license plate
number 459KXE. The car’s occupants, defendant and Elamin Muhammad, told the deputy that
they intended to meet some women in Muskegon.

        After hearing that a similar robbery had occurred in Grand Rapids, Detective Neher
contacted Detective Chris Postma of the GRPD to see what information he had on defendant,
Muhammad, and the license plate number of their vehicle. Detective Postma ran the license
plate through the Automatic License Plate Reader (ALPR), which is a database of vehicle
locations based on license plate number collected by mounted cameras on select police cruisers
throughout Grand Rapids. The ALPR indicated that a vehicle with license plate number
459KXE was observed within one mile of the East Beltline gas station at 2:47 a.m. on July 8,
2014. According to an employee from Enterprise Rent-a-Car, defendant rented a 2013 Hyundai
Sonanta with license plate number 459KXE from July 5, 2014, until July 14, 2014.

        Detective Tim DeVries of the GRPD was assigned to investigate the July 8 robbery of the
gas station on East Beltline and coordinated his investigation with Detective Neher. DeVries and
Neher drafted affidavits to obtain search warrants. A subsequent search of defendant’s vehicle
revealed a black hoodie, light gloves, and a black nylon do-rag. A search of defendant’s phone
revealed a text conversation between defendant and Muhammad that occurred from July 12,
2014, through July 13, 2014, that seemed to indicate that the two were planning to do something
that required a gun. Defendant was eventually charged and convicted of the July 8 robbery.

        On appeal, defendant first challenges the trial court’s allowing admission into evidence of
various other acts under MRE 404(b). First, defendant contends that the trial court abused its
discretion by allowing evidence of defendant’s suspected involvement in a 2005 string of armed
robberies. “To preserve an evidentiary issue for review, a party opposing the admission of
evidence must object at trial and specify the same ground for objection that it asserts on appeal.”
People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). Defendant objected to the
admission of the 2005 evidence, so this issue is preserved.

        “This Court reviews a trial court’s evidentiary ruling for an abuse of discretion.” People
v Benton, 294 Mich App 191, 195; 817 NW2d 599 (2011). “A trial court abuses its discretion
when its decision falls outside the range of reasonable and principled outcomes.” People v
Duncan, 494 Mich 713, 722-723; 835 NW2d 399 (2013). This Court reviews de novo any
preliminary questions of law surrounding the admission of evidence, such as the interpretation of
a rule of evidence. Id. at 723. “A preserved error in the admission of evidence does not warrant
reversal unless after an examination of the entire cause, it shall affirmatively appear that it is
more probable than not that the error was outcome determinative.” People v Burns, 494 Mich
104, 110; 832 NW2d 738 (2013) (citation and quotation marks omitted).

       MRE 404(b)(1) provides:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the character
       of a person in order to show action in conformity therewith. It may, however, be
       admissible for other purposes, such as proof of motive, opportunity, intent,
       preparation, scheme, plan, or system in doing an act, knowledge, identity, or
       absence of mistake or accident when the same is material, whether such other

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       crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
       conduct at issue in the case.


Whether other-acts evidence is admissible under MRE 404(b), involves the following factors:

       First, the prosecutor must offer the “prior bad acts” evidence under something
       other than a character or propensity theory. Second, the evidence must be
       relevant under MRE 402, as enforced through MRE 104(b). Third, the probative
       value of the evidence must not be substantially outweighed by unfair prejudice
       under MRE 403. Finally, the trial court, upon request, may provide a limiting
       instruction under MRE 105. [People v Knox, 469 Mich 502, 509; 674 NW2d 366
       (2004), citing People v VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993),
       amended 445 Mich 1205 (1994) (quotation marks omitted).]


        In regard to the first factor, “[w]here the only relevance of the proposed evidence is to
show the defendant’s character or the defendant’s propensity to commit the crime, the evidence
must be excluded.” Id. at 510. The evidence showed that in 2005 defendant was a suspect in a
string of armed robberies in which a group of people would enter and rob stores wearing
stocking caps, masks, hooded sweatshirts, and gloves. Officers investigating those cases had
stopped defendant while he was driving a rental car. During a search of the car, officers found
two handguns, a mask, gloves, and dark clothing matching what the robbers wore. The
prosecution offered this evidence to show a common scheme in which defendant would use a
rental car to drive to a store to commit armed robbery while wearing dark clothes and a mask.
On its face, this is a proper purpose under MRE 404(b)(1).

        With respect to the second factor, “[r]elevance is a relationship between the evidence and
a material fact at issue that must be demonstrated by reasonable inferences that make a material
fact at issue more probable or less probable than it would be without the evidence.” People v
Crawford, 458 Mich 376, 387; 582 NW2d 785 (1998). As such, “evidence of similar
misconduct is logically relevant to show that the charged act occurred where the uncharged
misconduct and the charged offense are sufficiently similar to support an inference that they are
manifestations of a common plan, scheme, or system.” People v Sabin (After Remand), 463
Mich 43, 63; 614 NW2d 888, 899 (2000). There need not be either a high degree of similarity
between the charged and the uncharged acts or distinctive or unusual features for evidence to be
admitted under this theory. People v Steele, 283 Mich App 472, 480; 769 NW2d 256 (2009).

        In this case, the trial court permitted the evidence of defendant’s connection to the 2005
armed robberies as proof of a common plan. In each instance, defendant rented a car then stored
in the trunk a mask and dark clothing consistent with what the robber in each case wore.
Although there are clear differences between the two cases, such as the 2005 armed robberies
involved multiple perpetrators while the robber in the current case acted alone, the cases were
sufficiently similar to establish a common scheme or plan. See Steele, 283 Mich App at 480.
Thus, evidence that defendant was previously accused of being involved in armed robberies in
which he rented a car and robbed stores wearing dark clothing and a mask established that



                                               -3-
defendant was previously involved in similar misconduct, which is logically relevant to show a
common plan or scheme that defendant followed. Sabin, 463 Mich at 63.

        The third other-acts factor is whether the probative value of the evidence is substantially
outweighed by the danger of unfair prejudice under MRE 403. MRE 403 “does not prohibit
prejudicial evidence; only evidence that is unfairly so.” Crawford, 458 Mich at 398. This is
because evidence offered against a party is naturally prejudicial, “otherwise there would be no
point in presenting it.” People v Fisher, 449 Mich 441, 451; 537 NW2d 577 (1995).

        In this case, the 2005 other-acts evidence was highly probative. The evidence of
defendant’s involvement with the armed robberies in this case was similar to the evidence of
defendant’s involvement with the 2005 armed robberies. This evidence of a common plan for
committing armed robberies, and evidence that that plan was followed in this case, made it more
probable that defendant committed the armed robbery in this case. See Crawford, 458 Mich at
387. Further, the trial court instructed the jurors that the purpose of the other-acts evidence was
only to show a common plan. Jurors are presumed to follow the trial court’s instructions. See
People v Unger, 278 Mich App 210, 235; 749 NW2d 272 (2008). Therefore, the trial court’s
limiting instruction restricted the jury from giving this evidence unfair weight.

        Next, defendant challenges the trial court’s admission of evidence that he slept while at
work. Defendant failed to object to this evidence before or during trial. Therefore, because this
issue is unpreserved, Aldrich, 246 Mich App at 113, our review is limited to plain error affecting
substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). To avoid
forfeiture, “1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the
plain error affected substantial rights.” To affect substantial rights means that “the error affected
the outcome of the lower court proceedings.” Id.

       First, defendant argues that the evidence was inadmissible under MRE 404(b). But the
prosecution did not admit evidence of defendant’s sleeping at work to show that on the night of
the robbery, defendant fell asleep at work. Because this evidence was not presented to show that
defendant acted in conformity, it is not barred under MRE 404(b). See MRE 404(b)(1).

        Next, defendant argues that this evidence was inadmissible because it was irrelevant.
“ ‘Relevant evidence’ means 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. Evidence is relevant if it is material and probative.
Crawford, 458 Mich at 388. “Materiality is the requirement that the proffered evidence be
related to ‘any fact that is of consequence’ to the action.” Id. Evidence is probative when it
“tends ‘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.’ ” Id. at 389-390.

        Before trial, defendant submitted a notice that he intended to present evidence of an alibi
that he was working when the armed robbery occurred. In defense counsel’s opening statement,
he reiterated several times that defendant’s alibi was premised on the fact that he was well
supervised at work and would not have been able to leave unnoticed. The prosecution’s theory
in rebuttal was that defendant was not as closely supervised as he asserted and could therefore
leave work unnoticed for as long as necessary to commit the robbery. Thus, defendant’s alibi

                                                -4-
defense made the question of whether defendant could leave work unnoticed a matter of
consequence, and the fact that defendant was not closely supervised while at work was material.
Id. at 388. Further, if defendant were able to sleep while at work, his doing so tends to show that
he was not closely supervised. Because this makes the fact that he could leave unnoticed more
probable, evidence of defendant’s sleeping at work was also probative and admissible. Id. at
389-390.

        Defendant next argues that the prosecution presented evidence of defendant’s sleeping at
work to prove defendant’s trait for disregarding work rules and that he acted in conformity with
that trait. The record, however, does not indicate that this was character evidence. Rather, as
previously explained, the prosecution presented evidence of defendant’s sleeping at work to
rebut defendant’s alibi that he was at work at the time of the robbery.

       In defendant’s Standard 4 brief,1 he argues that evidence of the Norton Shores robbery
was improperly admitted under MRE 404(b)(1). This argument requires this Court to apply the
other-acts framework stated earlier. With respect to the first factor, the prosecution offered
evidence of defendant’s connection to the 2014 armed robbery to show a common scheme in
which defendant and a possible accomplice target Shell gas stations: defendant or his
accomplice enters the station and robs it at gun point wearing dark clothing. Defendant and his
accomplice then flee in a late model Hyundai Sonata. This is a proper purpose under MRE
404(b)(1).

        In regard to the second factor, we see in the record clear similarities between the Norton
Shores robbery and the robbery in this case. In both cases, the robber targeted a Shell gas
station; the robbery took place in the early morning hours; the robber entered the store and
robbed the clerk at gunpoint; the robber dressed in dark clothing, including a black hooded
sweatshirt, and the robber was suspected of fleeing in a late model Hyundai Sonata. While there
were some dissimilarities between the two robberies, such as the Norton Shores robber also stole
cigarettes and carried a backpack, the similarities were sufficient to establish a common plan.
Steele, 283 Mich App at 480. Because the similarities between the two robberies manifested a
common plan to commit armed robberies, details pertaining to the Norton Shores robbery were
logically relevant to the armed robbery in this case. See Sabin, 463 Mich at 63.

        With respect to the third other-acts factor, this Court must determine whether the
probative value of the evidence was substantially outweighed by the danger of unfair prejudice
under MRE 403. Knox, 469 Mich at 509. “Evidence is unfairly prejudicial when there exists a
danger that marginally probative evidence will be given undue or preemptive weight by the
jury.” Crawford, 458 Mich at 398. Evidence of defendant’s connection to the Norton Shores
robbery was highly probative because it evidenced a common plan for targeting Shell gas
stations to commit armed robberies. Further, defense counsel made clear for the jury that
defendant was not charged with the Norton Shores robbery. The trial court also instructed the
jury to only consider the evidence as possibly showing a common plan and jurors are presumed



1
    See Michigan Supreme Court Administrative Order 2004-6, Standard 4.


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to follow the trial court’s instructions. Unger, 278 Mich App at 235. As such, there exists no
indication that the jury gave the Norton Shores robbery evidence unfair weight.

         Defendant argues that no evidence connected him to the Norton Shores robbery. But
there was significant circumstantial evidence that connected defendant to this robbery:
Muhammad was charged with the Norton Shores robbery after DNA evidenced linked the shoe
left at the scene to him; text messages between Muhammad and defendant indicated that the two
were planning something involving a weapon in the days leading up to the Norton Shores
robbery. Finally, at the time of the robbery defendant was driving a 2013 Hyundai Sonata, and
the robber in the Norton Shores robbery fled in a 2010-2014 Hyundai Sonata. Thus, defendant’s
argument does not apply to whether the evidence was admissible, but to what weight the jury
should have given the evidence. “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).

        Next, defendant argues that there was insufficient evidence to convict him of armed
robbery. A challenge to the sufficiency of the evidence is reviewed de novo. People v Wolfe,
440 Mich 508, 513-515; 489 NW2d 748, 751 (1992), amended 441 Mich 1201 (1992). To
determine whether the prosecution presented sufficient evidence to sustain a conviction, “a court
must view the evidence in a light most favorable to the prosecution and determine whether any
rational trier of fact could have found that the essential elements of the crime were proven
beyond a reasonable doubt.” Id. at 515. But appellate courts are not juries and must not interfere
with the jury’s role as the sole factfinder based of the jury’s determination of the credibility of
witnesses and the weight to be given the evidence. Id. at 514-515. “[T]he trier of fact, not the
appellate court, . . . determine[s] what inferences may be fairly drawn from the evidence and . . .
the weight to be accorded those inferences.” Hardiman, 466 Mich at 428. This review standard
applies equally to direct and circumstantial evidence, which may sufficiently prove any element
of the crime. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).

        Here, defendant does not contest that the elements of armed robbery were satisfied.
Rather, defendant contends that the prosecution failed to reasonably prove that he committed the
armed robbery. “[I]t is well settled that identity is an element of every offense.” People v Yost,
278 Mich App 341, 356; 749 NW2d 753 (2008). The prosecution’s theory of the case was that
defendant was guilty of the crime either as the principle or as an aider and abettor. Under MCL
767.39, “[e]very person concerned in the commission of an offense, whether he directly commits
the act constituting the offense or procures, counsels, aids, or abets in its commission may
hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly
committed such offense.” This statute “does not create a distinct crime; rather, it allows an aider
and abetter to be convicted of, for example, armed robbery, even though that person did not hold
the gun or take the money.” People v Greaux, 461 Mich 339, 344-345; 604 NW2d 327 (2000).

       Sufficient evidence was presented at trial to convict defendant of armed robbery under, at
the very least, an aiding and abetting theory. Evidence was presented that defendant rented a
2013 Hyundai Sonata with license plate number 459KXE from July 5, 2014, until July 14, 2014.
On July 8, 2014, a vehicle with license plate number 459KXE was observed approximately ¾ of
a mile from the Shell station just a few minutes after the station was robbed at gunpoint. The
robber of the Shell station was dressed in all black with a hoodie and a black nylon mask. When

                                                -6-
the police searched defendant’s car, they found a black hoodie and a black do-rag. Defendant
had previously been suspected of an armed robbery, and, in that case, when the police stopped
defendant and searched his car, they also found clothing that matched the clothing worn by the
robber. Defendant was also suspected of being involved in the July 2014 armed robbery in
Norton Shores as previously discussed. While defendant is correct that none of this evidence
directly places defendant at the scene of the July 8, 2014 armed robbery, “the prosecution need
not negate every reasonable theory consistent with the defendant’s innocence, but need merely
introduce evidence sufficient to convince a reasonable jury in the face of whatever contradictory
evidence the defendant may provide.” Hardiman, 466 Mich at 424 (citation omitted). So, based
on the evidence presented in this case, we conclude there was sufficient circumstantial evidence
for a rational trier of fact to find defendant guilty beyond a reasonable doubt of, at the very least,
aiding and abetting the July 8, 2014 armed robbery. Wolfe, 440 Mich at 515.

        In his Standard 4 brief, defendant also contends that evidence of his sleeping while at
work should not have been admitted because it was unfairly prejudicial. “Although 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.” MRE 403.

        Whether defendant was closely supervised at work was a crucial factor in this case.
Defendant’s alibi was premised on his assertion that he was at work and unable to leave for
longer than ½ hour without his supervisor noticing. Proof that he was not closely supervised and
therefore had more flexibility to leave and return without notice brought his alibi into question.
Thus, the evidence was not unfairly prejudicial because it focused on a fact relevant to the case,
not on something extraneous. See Fisher, 449 Mich at 452 (observing that unfair prejudice
under MRE 403 refers to the tendency of proposed evidence to adversely affect the objecting
party’s position by injecting matters extraneous to the merits of the case, such the jury’s bias,
sympathy, anger, or shock). Moreover, defendant has failed to establish that this error, if any,
was outcome determinative. Consequently, relief would not be available on review for plain
error. Carines, 460 Mich at 763. Because this evidence was admissible, defendant’s argument
that counsel was ineffective for failing to object to its admission is also without merit. Unger,
278 Mich App at 257 (counsel is not ineffective when failing to assert futile objections).

         Defendant next argues that his right to confrontation was violated when Detective Neher
testified regarding information about a traffic stop involving defendant that Detective Neher
obtained from a deputy with the Ottawa Sheriff’s Department. Because defendant failed to
object to Detective Neher’s testimony regarding his conversation with Deputy Wendt, this issue
is unpreserved, and our review is limited to plain error affecting substantial rights. Carines, 460
Mich at 762-764; Aldrich, 246 Mich App at 113.

         The Confrontation Clause is primarily function is to promote reliability in criminal trials
al right by permitting an accused to confront and cross-examine witnesses. People v Nunley, 491
Mich 686, 697; 821 NW2d 642 (2012). But the protections of the Confrontation Clause apply
only to statements that are used as substantive evidence. People v Fackelman, 489 Mich 515,
528; 802 NW2d 552, 559 (2011). Thus, the Confrontation Clause does not “bar the use of out-
of-court testimonial statements for purposes other than establishing the truth of the matter
asserted.” People v Putman, 309 Mich App 240, 246; 870 NW2d 593 (2015). So, an out-of-

                                                 -7-
court statement used to show its effect on the hearer is not hearsay and does not violate the
Confrontation Clause. See People v Henry (After Remand), 305 Mich App 127, 154; 854 NW2d
114 (2014), and People v Chambers, 277 Mich App 1, 11; 742 NW2d 610 (2007).

        In this case, Detective Neher offered the information he received from the Ottawa
Sheriff’s deputy to explain why he proceeded with the investigation in the way that he did, not to
prove the truth of the matter asserted. Detective Neher did not testify that defendant and
Muhammad were driving to Muskegon to prove that they were going towards the location of the
Norton Shores robbery. Rather, it was offered to explain why the detective contacted GRPD;
after running their names, Detective Neher saw that most of their contacts and residences were in
Grand Rapids, not Muskegon, and Detective Neher was aware of similar robberies that occurred
in Grand Rapids. This, in turn, explained why the GRPD ran defendant’s plates. When they
found that his vehicle was near the site of the July 8 robbery, it triggered the rest of the GRPD’s
investigation. Accordingly, because Detective Neher’s testimony was limited to showing why he
proceeded in a certain direction with his investigation, it did not violate the Confrontation
Clause. See Chambers, 277 Mich App at 10-11; see also Henry, 305 Mich App at 154 (“Had
[the detective] limited his testimony to an explanation that, on the basis of the information he
received from the informant he proceeded in a certain direction with his investigation, it may
have been admissible.”). As such, to the extent that defendant argues that defense counsel was
ineffective for failing to object to the admission of these statements, that argument is also
without merit because any objection would have been futile. See Unger, 278 Mich App at 257.

        Lastly, defendant argues in his Standard 4 brief that trial counsel was ineffective for
failing to investigate certain evidence that would have confirmed his alibi defense. Although
defendant has preserved the issue by filing a motion for remand in this Court, this Court denied
the motion. Consequently, our review is limited to mistakes apparent on the lower court record.
See People v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009).

        To establish ineffective assistance of counsel, “a defendant must show that (1) counsel’s
performance fell below an objective standard of reasonableness and (2) but for counsel’s
deficient performance, there is a reasonable probability that the outcome would have been
different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Strickland v
Washington, 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). A defendant must
overcome a strong presumption that counsel employed sound trial strategy. Id. at 689;
Trakhtenberg, 493 Mich at 52. Thus, effective assistance of counsel is presumed, and a
defendant bears a heavy burden of proving otherwise. People v McGhee, 268 Mich App 600,
625; 709 NW2d 595 (2005).

       Defendant first argues that trial counsel was ineffective for failing to investigate and call
four witnesses who could have confirmed his alibi. “Failure to make a reasonable investigation
can constitute ineffective assistance of counsel.” Id. at 626. But counsel’s “[d]ecisions
regarding what evidence to present and whether to call or question witnesses are presumed to be
matters of trial strategy, and this Court will not substitute its judgment for that of counsel
regarding matters of trial strategy.” People v Davis, 250 Mich App 357, 368; 649 NW2d 94
(2002). “[T]he failure to call witnesses only constitutes ineffective assistance of counsel if it
deprives the defendant of a substantial defense.” People v Dixon, 263 Mich App 393, 398; 688

                                                -8-
NW2d 308 (2004). “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, defendant argues that defense counsel’s failure to investigate and call four
witnesses deprived him of his alibi defense because the witnesses could have testified that
defendant was working the night of the robbery. But it was uncontested at trial that defendant
was at work on the night of the robbery. The prosecution’s theory at trial was that defendant left
work, committed the robbery, and then returned to work. Therefore, the only way that these
witnesses could have provided testimony of a substantial defense was if they could have testified
that they were with defendant at the time of the robbery.

       Defendant only claims that one of the four witnesses could have confirmed that he was at
work at the time of the robbery. According to defendant, he had a conversation with this
coworker during his break on the night of the robbery, thereby proving that he did not leave the
premises and commit the robbery. But this witness, Shelly Cox, was called and testified at
defendant’s trial. Specifically, Cox testified that he was unsure whether he had any conversation
with defendant on July 8, the night of the robbery. Therefore, based on the record, further
testimony from Cox could not have established a substantial defense.

        Defendant also argues that defense counsel was ineffective for failing to interview Cox
before trial. However, defendant has not provided any evidence, other than his own statements,
that defense counsel failed to interview Cox before he testified. Therefore, without more than
defendant’s assertions, defendant failed to establish that defense counsel was ineffective. See
People v Meissner, 294 Mich App 438, 460; 812 NW2d 37 (2011) (holding that trial counsel was
not ineffective for failing to interview witnesses because defendant provided “nothing beyond his
assertions to establish” that the witnesses could have provided different evidence).

         Defendant also argues that defense counsel was ineffective for failing to investigate
security footage from his workplace on the night of the robbery. However, Detective DeVries
testified at defendant’s preliminary examination that the surveillance videos did not provide any
insight into the investigation. Defendant has presented no evidence other than his assertions that
the surveillance video would have proved that he was at his work at the time of the robbery.
Without anything to substantiate defendant’s assertions, defendant cannot establish counsel’s
decisions regarding what evidence to present were not sound trial strategy, Trakhtenberg, 493
Mich at 52, and this Court will not substitute its judgment for that of counsel regarding matters
of trial strategy, Davis, 250 Mich App at 368. As such, because defendant provided nothing
beyond his assertions regarding the surveillance video, defense counsel was not ineffective in
failing to present this evidence. See Meissner, 294 Mich App at 460.

       We affirm.

                                                            /s/ Jane M. Beckering
                                                            /s/ Jane E. Markey
                                                            /s/ Douglas B. Shapiro




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