                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 19, 2017
               Plaintiff-Appellee,

v                                                                  No. 330405
                                                                   Ingham Circuit Court
DEREK AARON RIVERA,                                                LC No. 15-000280-FC

               Defendant-Appellant.


Before: HOEKSTRA, P.J., and METER and K. F. KELLY, JJ.

PER CURIAM.

       Following a jury trial, defendant appeals as of right his conviction of second-degree
murder, MCL 750.317. For the reasons explained in this opinion, we affirm.

        This case arises from the death of Terry Alber. At the time of Alber’s death, Alber and
defendant were both homeless, and they spent time with several other individuals at a shack
behind the Volunteers of America building in Lansing. Defendant and Alber had a history of
conflict stemming from defendant’s jealousy of Alber’s friendship with Mersaides Schmit,
defendant’s former girlfriend. According to the evidence introduced at trial, on the night of May
3, 2014, in front of witnesses at the shack, defendant beat Alber. He punched him, hit him
(possibly with a golf club), and stomped and kicked him in the head. The evidence suggested
that Alber did not immediately die from this beating. Instead, he went to sleep outside the shack.
He later awoke, took a few steps, and then fell to the ground. A few minutes later, one of the
other men shook Alber as though to wake him and discovered that Alber was dead. The
prosecution’s expert, forensic pathologist Dr. John Bechinski, detailed Alber’s numerous
injuries, including at least 9 blows to the head, and he opined that Alber died from blunt force
trauma to the head. More specifically, Bechinski explained that blows to the head caused
subdural and subarachnoid bleeding, that Alber could have lived with this bleeding for minutes
or hours, and that it was this bleeding that led to death. In contrast, the defense presented an
expert, forensic pathologist Dr. Ronald Horowitz, who opined that Alber died from falling and
hitting his head on a cinder block. Defendant was charged with open murder, and the jury
returned a verdict of second-degree murder. Defendant now appeals as of right.

                                 I. OTHER ACTS EVIDENCE

       On appeal, defendant argues the court abused its discretion by admitting other-acts
testimony from Schmit and Angela Lewis, both of whom testified about other physical assaults
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perpetrated by defendant. Defendant argues that this evidence was improper propensity evidence
and that, given the violent nature of the assaults, the prejudicial effect of this evidence
outweighed any probative value.

        “The decision whether to admit evidence is within the discretion of the trial court and
will not be disturbed on appeal absent a clear abuse of discretion.” People v Aldrich, 246 Mich
App 101, 113; 631 NW2d 67 (2001). “The trial court abuses its discretion when its decision falls
outside the range of principled outcomes or when it erroneously interprets or applies the law.”
People v Lane, 308 Mich App 38, 51; 862 NW2d 446 (2014). “When the decision involves a
preliminary question of law however, such as whether a rule of evidence precludes admission,
we review the question de novo.” People v Mardlin, 487 Mich 609, 614; 790 NW2d 607 (2010).

       “As a general rule, evidence of other crimes, wrongs, or acts of an individual is
inadmissible to prove a propensity to commit such acts.” People v Kelly, 317 Mich App 637,
643; 895 NW2d 230 (2016) (citation and quotation marks omitted). However, the evidence may
be admitted for other purposes under MRE 404(b)(1), such as proof of motive or intent. When
evidence is introduced under MRE 404(b), it must satisfy a four-pronged standard:

       First, that the evidence be offered for a proper purpose under Rule 404(b); second,
       that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the
       probative value of the evidence is not substantially outweighed by unfair
       prejudice; fourth, that the trial court may, upon request, provide a limiting
       instruction to the jury. [People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114
       (1993), amended 445 Mich 1205; 520 NW2d 338 (1994).]

        In this case, the trial court admitted the other acts evidence in question as evidence of
whether defendant “had a reason to commit the crime,” i.e., motive, and whether defendant
“specifically meant to commit the crime,” i.e., intent. Both motive and intent are proper
purposes under MRE 404(b). Moreover, the other acts evidence in question was logically
relevant to these purposes. See People v Crawford, 458 Mich 376, 388; 582 NW2d 785 (1998).
The jury was instructed on first-degree murder which requires a premediated intent to kill the
victim that may be shown from all the facts and circumstances surrounding the killing, including
the prior relationship of the parties, a preconceived motive, and a defendant’s conduct after the
crime. People v Orr, 275 Mich App 587, 591; 739 NW2d 385 (2007); People v Taylor, 275
Mich App 177, 180; 737 NW2d 790 (2007). In this context, defendant’s violence toward Lewis
and the accompanying threat—that if she ever spoke “a word” to the police “about what
happened with [Alber] the same thing would happen to” her—belies the defense’s theory that
Alber’s death was an accident and it is relevant to show defendant’s intent. Likewise, Schmit’s
testimony about defendant’s assault on her and Alber on a previous occasion provided evidence
of defendant’s motive for killing Alber—an explosive jealousy of the friendship between Schmit
and Alber; and, this preconceived motive bears on whether defendant intended to kill Alber. See
Orr, 275 Mich App at 592. In short, the evidence was logically relevant.

        Contrary to defendant’s arguments, the probative value of this evidence was not
“substantially outweighed by the danger of unfair prejudice . . . .” MRE 403. “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. As discussed, the other

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acts evidence offered by Schmit and Lewis was highly probative to material issues at trial,
namely defendant’s intent and motive. Even if relevant for these purposes, defendant appears to
believe that Schmit and Lewis could have presented their testimony without reference to the
violence they suffered and thus he argues that descriptions of the assaults were unfairly
prejudicial. But, the violence inflicted against these women was probative—it demonstrated the
nature of the threat against Lewis as part of defendant’s efforts to conceal his guilt and it
established the extent of his jealousy over the relationship between Alber and Schmit. Such
evidence may have been detrimental to defendant, but it had strong probative value and was not
unfairly prejudicial. Finally, the trial court gave an instruction limiting the use of the other acts
evidence to its proper purposes. See Orr, 275 Mich App at 592. Overall, the trial court did not
abuse its discretion by admitting this evidence.

                                      II. EXPERT REPORT

         Next, defendant argues the trial court erred by requiring his medical expert, Ronald
Horowitz, M.D., to prepare a report even though plaintiff did not request a report and even
though, under MCR 6.201(A)(3), defendant could also have provided a written description in
lieu of a report. Defendant maintains that this error affected his substantial rights because the
prosecutor used errors in the report to attack the credibility of Horowitz’s opinions.
Alternatively, defendant argues that his trial counsel was ineffective for failing to timely object
to the trial court’s improper action.

       “A trial court's decision regarding discovery is reviewed for an abuse of discretion.”
People v Green, 310 Mich App 249, 252; 871 NW2d 888 (2015). The proper interpretation of a
court rule is a question of law which we review de novo. Id. However, while defendant now
claims he had no obligation under MCR 6.201(A)(3) to provide the prosecutor with a report from
Horowitz, defendant failed to raise this argument in the trial court, meaning that his claim is
unpreserved and defendant must show plain error affecting his substantial rights. People v
Bulmer, 256 Mich App 33, 35; 662 NW2d 117 (2003).

        MCR 6.201 governs matters related to discovery in criminal cases. People v Phillips,
468 Mich 583, 589; 663 NW2d 463 (2003). MCR 6.201(A)(3) provides that, upon request, a
party must provide “the curriculum vitae of an expert the party may call at trial and either a
report by the expert or a written description of the substance of the proposed testimony of the
expert, the expert’s opinion, and the underlying basis of that opinion.” Under MCR 6.201(J), if a
party fails to comply with the discovery rules, the court has discretion to fashion an appropriate
remedy, which can include ordering the party to provide discovery or prohibiting the party from
introducing the material not disclosed. People v Jackson, 292 Mich App 583, 591; 808 NW2d
541 (2011).

       Under MCR 6.201(A)(3), it is clear that, upon request, defendant had an obligation to
provide the prosecutor with Horowitz’s curriculum vitae and either a report or a written
description of his proposed testimony. Nevertheless, defendant claims that he did not have to
provide a report for two reasons. First, defendant argues that the rule does not apply because
there was no request from the prosecutor. However, the record shows that the prosecutor did
make a request before trial. Indeed, on the first day of trial, defense counsel admitted that he


                                                -3-
knew “that the Prosecutor wants a report.” To now claim that there had been no request is
simply disingenuous.

        Second, defendant argues that he did not have to supply a “report” because, under MCR
6.201(A)(3), in lieu of a report, he could have provided “a written description of the substance”
of Horowitz’s testimony. We agree that MCR 6.201(A)(3) is written in the alternative; that is, a
party must provide either a report or a written description of the proposed testimony. See People
v Nicholson, 297 Mich App 191, 199; 822 NW2d 284 (2012) (“The word ‘or’ is disjunctive and,
accordingly, it indicates a choice between alternatives.”). However, defendant did not object
when the trial court ordered him to provide the prosecutor with a “report,” and he did not, in lieu
of a report, attempt to provide the prosecutor with a written description of Horowitz’s testimony.
Instead, Horowitz produced a report, and he testified to his causation theory on defendant’s
behalf at trial. On this record, we fail to see how defendant was prejudiced by being required to
produce a report, and we cannot conclude that defendant has shown plain error.

        In arguing to the contrary, defendant’s claim of prejudice rests on the assertion that
Horowitz’s report was somehow inadequate due to the time crunch in which he drafted the report
and that no such shortcomings would have occurred in a “written description” of Horowitz’s
testimony. This argument assumes, without any basis in the evidence, that any deficiencies in
Horowitz’s report were attributable to being rushed as opposed to errors that he would have
made even with more time. We will not make such an assumption. 1 Moreover, defendant’s
argument improperly assumes that a written description of Horowitz’s testimony—as opposed to
a “report”—would have been less prone to criticism by the prosecutor’s expert because it is
somehow a less demanding disclosure. Defendant’s argument oversimplifies what is required of
a written description of expert testimony. MCR 6.201(A)(3) requires “a written description of
the substance of the proposed testimony of the expert, the expert’s opinion, and the underlying
basis of that opinion.” While not specifically formatted as a “report,” such a written description
would contain much of the same information found in a report and Horowitz’s opinions, stated in
a written description, would have been equally susceptible to criticisms by the prosecutor’s
expert. Overall, defendant has not shown plain error arising from the trial court’s order to
provide a report to the prosecutor.

        It also follows that defendant has not established that counsel’s failure to object to the
report requirement constituted ineffective assistance of counsel. Counsel is presumed effective,
and defendant has not overcome the presumption that there were strategic reasons for providing a
report as opposed to a written description of Horowitz’s testimony. See People v Cooper, 309
Mich App 74, 80; 867 NW2d 452 (2015). In any event, as discussed, defendant has not shown




1
 To the contrary, most of what defendant characterizes as “inadequacies” were in fact matters on
which the prosecutor’s expert simply disagreed with Horowitz’s opinions and observations, such
as Horowitz’s assertion that Alber had advanced liver disease, Horowitz’s disregard of the
impact sites on the sides and back of Alber’s head, Horowitz’s use of the medical term
“contrecoup,” the extent of Alber’s facial injuries, etc.


                                                -4-
prejudice given that the report was produced and Horowitz was able to testify on defendant’s
behalf. See id. Thus, his ineffective assistance claim must fail.

                           III. SUFFICIENCY OF THE EVIDENCE

        In a Standard 4 brief, defendant also argues that the evidence was insufficient to support
his conviction and, relatedly, that the trial court erred by denying defendant’s motion for a
directed verdict. Specifically, according to defendant, there was insufficient evidence to prove
that he caused Alber’s death because Alber died as a result of a “terrible accident” that occurred
when Alber fell and hit his head on a cinder block.

        This Court reviews de novo challenges to the sufficiency of the evidence. People v
Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). We review “the evidence in the light
most favorable to the prosecution and determine[] whether a rational trier of fact could find that
the essential elements of the crime were proven beyond a reasonable doubt.” People v
McKinney, 258 Mich App 157, 165; 670 NW2d 254 (2003). “All conflicts in the evidence must
be resolved in favor of the prosecution and we will not interfere with the jury's determinations
regarding the weight of the evidence and the credibility of the witnesses.” People v Unger, 278
Mich App 210, 222; 749 NW2d 272 (2008). We apply the same standards when reviewing a
trial court’s ruling on a motion for a directed verdict, except that we only consider the evidence
presented up to the time the motion is made. People v Schultz, 246 Mich App 695, 702; 635
NW2d 491 (2001).

       Defendant’s conviction of second-degree murder required the jury to find that (1) the
victim died, (2) the death was caused by an act of defendant, (3) done with malice, and (4)
without justification or excuse. People v Goecke, 457 Mich 442, 463-464; 579 NW2d 868
(1998). The crux of defendant’s argument is the second of these four elements.

        In this case, Mark Cobb, Arthur Devine, and Lawrence Fisher saw defendant hit Alber.
In an interview with police, defendant admitted that he also kicked Alber in the head, both in an
up-and-down stomping motion and a kick that was compared to kicking a football. Alber’s
blood was found on defendant’s shoes and on a nearby golf club, and the prosecution offered
detailed testimony of Alber’s numerous injuries to his face, head, brain, and body. While there
was evidence that Alber did not immediately die from this beating, Bechinski identified the
cause of death as “blunt force trauma of the head, and the manner of death was classified as a
homicide.” Bechinski explained that Alber could have lived for minutes or hours with the
subdural and subarachnoid bleeding that led to his death, and he indicated that Alber’s various
injuries could not be explained by a single fall. There was also evidence that defendant had a
motive for killing Alber insofar as he was jealous of Alber’s relationship with Schmit. Viewing
the evidence in a light most favorable to the prosecutor, this evidence was sufficient to establish
that an act of defendant, done with malice and without justification or excuse, caused Alber’s
death. It also follows that the trial court did not err by denying defendant’s motion for a directed
verdict at the close of the prosecutor’s case-in-chief. Schultz, 246 Mich App at 702.




                                                -5-
        In contrast, defendant highlights the evidence favorable to his position and asserts that
Alber died as a result of falling and striking his head on a cinder block. Certainly, Horowitz
offered causation testimony to this effect.2 But, his credibility was a question for the jury.
People v Stevens, 306 Mich App 620, 628; 858 NW2d 98 (2014). And, indeed, Bechinski
specifically testified on rebuttal that Alber’s numerous injuries were consistent with being
brutally beaten and that these injuries could not be explained by falling once on a cinder block.
Resolving all conflicts in the evidence in favor of the jury verdict, Unger, 278 Mich App at 222,
there was sufficient evidence to support defendant’s convictions.

                               IV. INEFFECTIVE ASSISTANCE

        In his Standard 4 brief, defendant also argues that defense counsel provided ineffective
assistance (1) by failing to sequester witnesses, (2) by stating that defendant would exercise his
right to remain silent by not testifying, and (3) by advising defendant not to testify.3

        In order to establish a denial of the effective assistance of counsel, a defendant must show
that: “(1) the performance of his counsel was below an objective standard of reasonableness
under prevailing professional norms and (2) a reasonable probability exists that, in the absence of
counsel’s unprofessional errors, the outcome of the proceedings would have been different.”
People v Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000). “A
defendant must overcome a strong presumption that the assistance of his counsel was sound trial
strategy[.]” Id. A defendant also has the burden of establishing the factual predicate of an
ineffective assistance claim. People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014).

       To the extent defendant argues counsel was ineffective with regard to the sequestration of
witnesses, his argument is abandoned. In full, defendant states that counsel “was ineffective for
not Having [sic] a sequester witnesses in this case. Witnesses should not have been aloud [sic] in
the court room while other witnesses were testifying.” Defendant fails to support this assertion
with relevant legal authority or cogent argument. He does not even identify what witnesses
should have been sequestered and he makes no effort to explain how counsel’s failure to


2
  On appeal, defendant notes that defense counsel moved for a directed verdict at the close of the
prosecutor’s case-in-chief; and defendant argues that counsel provided ineffective assistance by
failing to wait until after Horowitz testified to make this motion. This argument is without merit.
At most, Horowitz’s testimony created a question of fact for the jury with regard to the cause of
Alber’s death. Viewing the evidence in a light most favorable to the prosecution, this difference
in expert opinion when compared to Bechinski’s would not have entitled defendant to a directed
verdict, and counsel was not ineffective for failing to make a meritless motion for a directed
verdict after Horowitz testified. See People v Riley, 468 Mich 135, 142; 659 NW2d 611 (2003).
3
  Along with his Standard 4 brief, defendant submitted a motion to remand for an evidentiary
hearing, which we denied. People v Rivera, unpublished order of the Court of Appeals, entered
April 20, 2017 (Docket No. 330405). Insofar as defendant reiterates his request for a remand in
his Standard 4 brief, his request is again denied because we see no need for the development of a
factual record to resolve defendant’s claims.


                                                -6-
somehow effectuate a sequestration prejudiced his case. This cursorily briefed argument is
abandoned. See People v Watson, 245 Mich App 572, 587; 629 NW2d 411 (2001).

        Defendant also argues his trial counsel was ineffective for telling the jury that defendant
has a right to remain silent. He cites as support the following exchange between defense counsel
and the trial court, which occurred in front of the jury:

               The Court: Okay. Any further evidence for the Defense?

              [Defense counsel:] No, Your Honor, I have advised my client of his rights
       to remain silent and he will follow that and we will rest.

               The Court: You shouldn’t put that on the record, sir?

This exchange does not entitle defendant to relief. Essentially, defense counsel stated that
defendant would not be testifying and that he had the right not to testify. When a defendant does
not testify, whether to inform the jury that he or she has a right not to testify is a matter of trial
strategy. See People v Hampton, 394 Mich 437, 438; 231 NW2d 654 (1975). Indeed, consistent
with counsel’s statement, the trial court expressly instructed the jury, under M Crim JI 3.3, that:
“Every Defendant has the absolute right not to testify. When you decide the case you must not
consider the fact[] that he did not testify. It must not affect your verdict in any way.” On this
record, defendant has not established his ineffective assistance claim based on counsel’s
reference to defendant’s decision to remain silent at trial.

        On appeal, defendant also argues that his trial counsel was ineffective because he
“erroneously advise[d] [defendant] that if he testified that the Prosecution would impeach him
with his criminal past, when the prosecutor used his criminal past against him anyway.”
However, he cites no record evidence that counsel gave such advice, and thus he has failed to
establish the factual predicate of his claim. Douglas, 496 Mich at 592. Further, even assuming
that counsel gave such advice, advice regarding the decision to testify is a matter of trial strategy,
and defendant has not overcome the presumption that counsel was effective. Cf. People v
Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991). Moreover, there is no indication that,
but for counsel’s advice, defendant would have testified. Nor can we see a reasonable
probability that his unspecified testimony would have changed the outcome of the proceedings.
His claim is without merit. Sabin (On Second Remand), 242 Mich App at 659.

                                   V. CUMULATIVE EFFECT

        Finally, defendant argues that the cumulative impact of the errors he has identified
warrants reversal. As discussed, defendant has failed to establish that error occurred. “Thus,
there are no individual errors that can be aggregated to form a cumulative effect.” Unger, 278
Mich App at 258.




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Affirmed.



                  /s/ Joel P. Hoekstra
                  /s/ Patrick M. Meter
                  /s/ Kirsten Frank Kelly




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