                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 16, 2016
               Plaintiff-Appellee,

v                                                                  No. 320467
                                                                   Wayne Circuit Court
WILLIAM KEITH HAYGOOD,                                             LC No. 13-008659-FC

               Defendant-Appellant.


Before: JANSEN, P.J., and SAWYER and FORT HOOD, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of felonious assault, MCL 750.82,
assaulting, resisting, or obstructing a police officer, MCL 750.81d(1), possession with the intent
to deliver or manufacture less than five kilograms of marijuana, MCL 333.7401(2)(d)(iii), felon
in possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of
a felony (felony-firearm), MCL 750.224b. Defendant was sentenced, as a third habitual
offender, MCL 769.11, to time served for his felonious assault, assaulting, resisting, or
obstructing a police officer, and possession with intent to deliver or manufacture less than five
kilograms of marijuana convictions, 14 months to 5 years’ imprisonment for his felon in
possession of a firearm conviction, and two years’ imprisonment for his felony-firearm
conviction. We affirm.

        Defendant contends that insufficient evidence was presented to convict him of felonious
assault, felon in possession of a firearm, and felony-firearm because he did not possess a gun.
We disagree.

       A defendant's challenge to the sufficiency of the evidence is reviewed de novo on appeal.
People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011), citing People v Cline, 276
Mich App 634, 642; 741 NW2d 563 (2007). In reviewing the sufficiency of the evidence, this
Court must view the evidence in the light most favorable to the prosecutor and determine
whether any trier of fact could find that the essential elements of the crime were proven beyond a
reasonable doubt. People v Meshell, 265 Mich App 616, 619; 696 NW2d 754 (2005), citing
People v Bulls, 262 Mich App 618, 623; 687 NW2d 159 (2004). Circumstantial evidence and
reasonable inferences arising from that evidence can constitute satisfactory proof of the elements
of the crime. People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999), citing People v
Allen, 201 Mich App 98, 100; 505 NW2d 869 (1993). Additionally, this Court should not

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interfere with the fact-finder’s role of determining the weight of evidence or the credibility of
witnesses. People v Eisen, 296 Mich App 326, 331; 820 NW2d 229 (2012), citing People v
Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).

        The elements of felonious assault are “(1) an assault, (2) with a dangerous weapon, and
(3) with the intent to injure or place the victim in reasonable apprehension of an immediate
battery.” People v Bosca, __ Mich App __, __; __ NW2d __ (2015); slip op at 8, citing People v
Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999). A pistol or other firearm is a dangerous
weapon. Bosca, __ Mich App at __; slip op at 8, citing MCL 750.226.

        Detroit Police Officers Reginald Dyas and Sean Hochradel testified that while they were
conducting surveillance at 6418 Vancourt, they saw defendant walk out of the house and walk
across the street with an AK-47. After going to the house across the street, defendant walked to
the middle of the road and had a .357 magnum revolver in his right hand. After a few seconds,
defendant began to run at Officer Dyas’s unmarked police vehicle and pointed the gun at Officer
Dyas’s police vehicle twice while running. As such, a rational trier of fact could find that
defendant assaulted Officer Dyas with a .357 magnum revolver, a dangerous weapon. Defendant
contends that there was insufficient evidence because Officer Dyas’s testimony that defendant
had a gun was not credible and because there was no fingerprint evidence to prove that defendant
was actually in possession of a gun. However, these challenges relate to the weight and
credibility of the evidence and this Court will not interfere with the fact-finder’s role of
determining the weight of evidence of the credibility of witnesses. Eisen, 296 Mich App at 331,
citing Kanaan, 278 Mich App at 619. Therefore, sufficient evidence was presented to establish
defendant assaulted Officer Dyas with a .357 magnum revolver, a dangerous weapon.

        Sufficient evidence was presented to convict defendant of felon in possession of a firearm
and felony-firearm. The felon in possession of a firearm statute prohibits a person convicted of a
felony from possessing a firearm. People v Dupree, 284 Mich App 89, 120; 771 NW2d 470
(2009), citing MCL 750.224f. “The elements of felony-firearm are that the defendant possessed
a firearm during the commission of, or the attempt to commit, a felony.” Bosca, __ Mich App at
__; slip op at 9, quoting Avant, 235 Mich App at 505. Possession encompasses both actual and
constructive possession, and can be established by circumstantial evidence of either. People v
Burgenmeyer, 461 Mich 431, 437; 606 NW2d 645 (2000).

       As stated above, evidence was presented that defendant ran toward Officer Dyas’s car
and pointed a .357 magnum revolver at Officer Dyas’s car twice while defendant was running.
Further, when Officer Dyas ran after defendant, Officer Dyas saw defendant throw the .357
magnum revolver in a vacant field. The parties stipulated that defendant had been previously
convicted of a felony. Accordingly, a rational trier of fact could find that defendant was in
possession of a firearm and that defendant was a convicted felon. As such, sufficient evidence
was presented to convict defendant of felon in possession of a firearm. Because sufficient
evidence was presented to establish that defendant possessed a firearm during the commission of
felonious assault and felon in possession, sufficient evidence was also presented to convict
defendant of felony-firearm.




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       Defendant also contends that insufficient evidence was presented to convict him of
possession with intent to deliver or manufacture less than five kilograms of marijuana because no
evidence was presented that defendant actually possessed the marijuana. We disagree.

        The elements of possession with intent to deliver marijuana are: (1) the defendant
knowingly possessed a controlled substance, (2) the defendant intended to deliver the substance
to someone else, (3) the substance possessed was marijuana, and (4) the substance was in a
mixture that weighed less than 5 kilograms. People v Williams, 268 Mich App 416, 419-420;
707 NW2d 624 (2005), citing MCL 333.7401(2)(d)(iii). Possession may be actual or
constructive. People v Wolfe, 440 Mich 508, 520; 489 NW2d 748 (1992), citing People v
Harper, 365 Mich 494, 506-507; 113 NW2d 808 (1962). Constructive possession exists if the
defendant knew that the substance was present and had the right to exercise control over it.
Wolfe, 440 Mich at 520. Said differently, constructive possession exists if “the totality of the
circumstances indicates a sufficient nexus between the defendant and the contraband.” Id. at
521. While Officers Dyas and Hochradel were conducting surveillance of the house, they saw a
lot of foot traffic and believed drugs were being sold out of the house and saw defendant leave
the vacant house. When Detroit Police Officers Paul West and Hochradel went inside the vacant
house, 1.74 grams of marijuana were found in 28 Zip-loc bags, on the dining room table. A
rational trier of fact could find that defendant knew the marijuana was present and had the right
to exercise control over it as the marijuana was on the kitchen table inside the vacant house
defendant was seen leaving. A rational trier of fact could find there was a sufficient nexus
between the marijuana and defendant to conclude that defendant had constructive possession of
the marijuana. Although there were no fingerprints on the bags of marijuana to establish
defendant was in actual possession of the bags of marijuana and nobody saw defendant in actual
possession of the marijuana, a rational trier of fact could find that defendant constructively
possessed the marijuana. Wolfe, 440 Mich at 520, citing Harder, 365 Mich at 506-507.
Therefore, when viewed in the light most favorable to the prosecution, sufficient evidence was
presented to convict defendant of possession with intent to deliver or manufacture less than five
kilograms of marijuana.

      Defendant next asserts he was denied the effective assistance of counsel on multiple
grounds. We disagree.

        A timely motion for a new trial, raising the issue of ineffective assistance of counsel, is
sufficient to preserve the issue for appellate review. People v Wilson, 242 Mich App 350, 352;
619 NW2d 413 (2000), citing People v Hurst, 205 Mich App 634, 641; 517 NW2d 858 (1994).
Defendant timely filed a motion for a new trial which raised the issue of ineffective assistance of
counsel on the basis that counsel was ineffective for failing to request fingerprint analysis of the
gun and for advising and convincing defendant not to testify. Those two issues are preserved.

        When a defendant does not move for a Ginther1 hearing or a new trial on the basis of
ineffective assistance of counsel, appellate review is limited to mistakes apparent on the record.
People v Rodgers, 248 Mich App 702, 713-714; 645 NW2d 294 (2001), citing Hurst, 205 Mich


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


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App at 641. Defendant did not raise the issue that counsel was ineffective for failing to move to
suppress evidence of the .357 magnum revolver in a timely motion for a new trial. Thus, the
issue is not preserved. Therefore, appellate review of this issue is limited to mistakes apparent
on the record. Rodgers, 248 Mich App at 713-714, citing Hurst, 205 Mich App at 641. Whether
a defendant has been deprived of the effective assistance of counsel presents a mixed question of
fact and constitutional law. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). A
trial court’s findings of fact are reviewed for clear error, and questions of constitutional law are
reviewed de novo. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).

         The United States and Michigan Constitutions guarantee a defendant the right to effective
assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20; Trakhtenberg, 493 Mich at 51.
To establish ineffective assistance of counsel, the defendant must show that “(1) defense
counsel’s performance was so deficient that it fell below an objective standard of reasonableness
and (2) there is a reasonable probability that defense counsel’s deficient performance prejudiced
the defendant.” People v Heft, 299 Mich App 69, 80-81; 829 NW2d 266 (2012). A defendant is
prejudiced if, but for defense counsel’s errors, the result of the proceeding would have been
different. Id. at 81. Effective assistance of counsel is presumed, and a defendant bears a heavy
burden of proving otherwise. Eisen, 296 Mich App at 329, citing People v Solmonson, 261 Mich
App 657, 663; 683 NW2d 761 (2004). A defendant must also overcome a strong presumption
that the assistance of his counsel was sound trial strategy. People v Sabin, 242 Mich App 656,
659; 620 NW2d 19 (2000). This Court will not substitute its judgment for trial counsel regarding
trial strategy. People v Unger, 278 Mich App 210, 242-243; 749 NW2d 272 (2008). Counsel is
not required to raise meritless or futile objections. Eisen, 296 Mich App at 329, citing People v
Moorer, 262 Mich App 64, 76; 683 NW2d 736 (2004).

       Defendant first contends he was denied the effective assistance of counsel when he failed
to request a fingerprint analysis on the revolver. Defense counsel’s decision not to pursue
fingerprint analysis of the gun is sound trial strategy because the analysis could have potentially
revealed that defendant’s fingerprints were, in fact, the only prints on the gun and marijuana,
which would have certainly been more damaging to defendant’s case. As such, defendant cannot
overcome the strong presumption that counsel’s assistance was sound trial strategy. Sabin, 242
Mich App at 659. Therefore, defense counsel’s performance did not fall below an objective
standard of reasonableness in this regard.

         Defendant also contends that he was denied the effective assistance of counsel because
counsel advised and convinced defendant not to testify at trial. This Court has held that advising
a defendant not to testify is presumed to be sound trial strategy. People v Tommolino, 187 Mich
App 14, 17; 466 NW2d 315 (1991). This Court will not substitute its judgment for trial counsel
regarding trial strategy. Unger, 278 Mich App at 242-243. Defendant has failed to demonstrate
that counsel’s performance fell below an objective standard of reasonableness by advising
defendant not to testify. Further, defense counsel was not ineffective for not allowing defendant
to testify as “the ultimate decision whether to testify at trial remains with the defendant,” not
defense counsel. People v Bonilla-Machado, 489 Mich 412, 419; 803 NW2d 217 (2011). The
record indicates that the trial court informed defendant of his absolute right to testify. Defendant
then informed the trial court that he did not want to testify. Accordingly, defendant has failed to
demonstrate that counsel’s performance fell below an objective standard of reasonableness for
advising and convincing defendant not to testify at trial.

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        Lastly, defendant asserts he was denied the effective assistance of counsel when counsel
failed to suppress evidence of the gun because it was “clearly tainted” because “there was no
fingerprint analysis ever done on the alleged weapon.” Defendant has not advanced any basis
upon which counsel could have objected or why the evidence was improper. As such, defendant
has not established that a motion to suppress would have been successful. Because counsel is
not required to file meritless motions or make meritless objections, Eisen, 296 Mich App at 329,
citing Moorer, 262 Mich App at 76, defense counsel’s performance did not fall below an
objective standard of reasonableness.

       Defendant next argues that the trial court abused its discretion when it denied defendant’s
motion for a Ginther hearing. We disagree.

        A trial court's decision whether to hold an evidentiary hearing is reviewed for an abuse of
discretion. Unger, 278 Mich App at 216-217, citing People v Mischley, 164 Mich App 478, 481-
482; 417 NW2d 537 (1987). An abuse of discretion occurs when the trial court chooses an
outcome outside the principled range of outcomes. Unger, 278 Mich App at 217, citing People v
Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).

        A defendant may be granted an evidentiary hearing if the record has not been sufficiently
developed, and the defendant can show evidence of a factual dispute which might, if further
developed, possibly be resolved in his favor. People v McMillan, 213 Mich App 134, 141-142;
539 NW2d 553 (1995). A remand is not necessary in this case because there was no dispute of
fact; only legal questions were presented before the trial court. The facts were already
established and the trial court was only required to determine the legal questions of whether
counsel’s performance fell below an objective standard of reasonableness and if defendant was
prejudiced when counsel failed to request fingerprint analysis on the revolver and when counsel
advised and convinced defendant not to testify. Defendant did not argue that a development of
the record was needed, rather, defendant argued that there can be no justification for the various
acts of trial counsel and those acts rendered counsel constitutionally ineffective. Defendant also
failed to provide the trial court any specifics on what additional facts might be developed at a
Ginther hearing. Because defendant did not show evidence of a factual dispute which might, if
further developed, possibly be resolved in his favor, McMillan, 213 Mich App at 141-142, the
trial court did not abuse its discretion when it denied defendant’s motion for a Ginther hearing.

       Affirmed.



                                                            /s/ Kathleen Jansen
                                                            /s/ David H. Sawyer
                                                            /s/ Karen Fort Hood




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