            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 PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                       February 4, 2020
                Plaintiff-Appellee,

 v                                                                     No. 341417
                                                                       Wayne Circuit Court
 WILLIE JOSEPH GRIMES,                                                 LC No. 17-004669-01-FC

                Defendant-Appellant.


Before: JANSEN, P.J., and METER and GLEICHER, JJ.

PER CURIAM.

        Following a bench trial, the trial court found defendant guilty but mentally ill of two counts
of assault with intent to commit murder (AWIM), MCL 750.83, two counts of assault with intent
to do great bodily harm less than murder (AWIGBH), MCL 750.84, and three counts of felonious
assault, MCL 750.82. At sentencing, the trial court vacated the AWIGBH convictions and
sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to concurrent prison terms
of 450 to 720 months for each AWIM conviction, and 60 to 180 months for each felonious-assault
conviction. Defendant appeals as of right. We affirm.

                                        I. BACKGROUND

       Defendant has a history of mental illness, which includes diagnoses of schizophrenia,
schizoaffective disorder, and bipolar disorder. Defendant had been receiving injections of the
psychotropic drug Prolixin to manage his schizophrenia, but he discontinued those injections in
August 2016, allegedly because he could not afford to travel to the provider’s facility. When
defendant was not taking Prolixin, he self-medicated with drugs and alcohol.

       In October 2016, defendant was residing in the Dorchester Arms apartments in Detroit.
Around 5:30 a.m. on October 18, 2016, the building’s caretaker, Deborah Taiwo, discovered
defendant standing on a second-story ledge, calling out his daughter’s name. A few hours later,
around 10:30 a.m., defendant confronted a tenant, Margo Speight, with a knife. Speight went to
Taiwo’s apartment to report defendant’s behavior. While Speight and Taiwo were talking by the
door, defendant forced his way into Taiwo’s apartment. He stabbed Speight in her arm and side,
and stabbed Taiwo in her arms, back, shoulder, and face. Taiwo called out to her boyfriend, Andre


                                                 -1-
Talley, for help. Talley grabbed a bat and repeatedly swung it at defendant, forcing defendant out
of the apartment. Defendant tried to force his way back inside until Talley warned him that he had
a gun and was prepared to use it. At this point, defendant retreated to his apartment, where police
officers eventually arrested him. Defendant informed the officers that he had not taken his
medication and was hallucinating and the officers transported defendant to a hospital for treatment.
The prosecution later charged defendant with two counts of AWIM, two counts of AWIGBH, and
three counts of felonious assault.

        Before trial, defendant informed the trial court of his intention to assert a defense of
criminal insanity. Ellen Garver, Ph.D., evaluated defendant for criminal responsibility. Defendant
reported that he had been having visual hallucinations of raccoons on the day of the stabbing
incident and that he believed that his daughter had been transformed into a raccoon. According to
defendant, he was trying to rescue his daughter when he climbed onto the ledge. He claimed that
he stabbed Speight and Taiwo because he thought they were involved in his daughter’s
transformation into a raccoon. Defendant also reported to Dr. Garver that he had consumed
alcohol, marijuana, and the drug “Lean,” a mixture of cough syrup containing promethazine with
codeine. Dr. Garver concluded that defendant was mentally ill within the definition of MCL
330.1400(g) on the date of the offense, but she was unable to conclude with medical certainty that
he was legally insane pursuant to MCL 768.21a. She found that defendant’s voluntary intoxication
made it impossible to conclude within a reasonable clinical certainty that defendant lacked the
capacity to appreciate the nature and quality or wrongfulness of his conduct or to conform his
conduct to the law.

        Defendant also underwent an independent evaluation by Patricia Wallace, Ph.D. In the
evaluation, defendant acknowledged that he had consistently used alcohol, marijuana, and Lean
for the past three years. Defendant informed Dr. Wallace that he had consumed alcohol on the day
before the incident, but told Dr. Wallace that he did not consume alcohol on the day of the offense.
Defendant could not provide details of the offense to Dr. Wallace; he only remembered generally
that he assaulted Taiwo. Based upon defendant’s mental-health history, his inability to describe
his state of mind at the time of the offense, and the absence of any provocation, “preparation,
strategy, reason, or explanation” for the offense, Dr. Wallace concluded that defendant was legally
insane.

        Defendant waived his right to a jury trial. The trial court found that defendant had proven
by a preponderance of the evidence that he was mentally ill, but failed to prove that he lacked
substantial capacity either to appreciate the nature and quality or wrongfulness of his conduct or
to conform his conduct to the requirements of the law. Accordingly, the trial court rejected
defendant’s insanity defense. The trial court found defendant guilty but mentally ill of all the
charged counts. At sentencing, the trial court vacated the AWIGBH convictions because they were
lesser included offenses of AWIM.1 The trial court sentenced defendant as a fourth-offense




1
  The parties have not raised any cognate-offense issue with regard to the felonious-assault
convictions.

                                                -2-
habitual offender to concurrent prison terms of 450 to 720 months for each AWIM conviction and
60 to 180 months for each felonious-assault conviction. This appeal followed.

                                          II. ANALYSIS

                            A. SUFFICIENCY OF THE EVIDENCE

        Defendant argues that the evidence at trial did not support his convictions because the
prosecution failed to rebut his evidence of legal insanity. He further argues that the evidence was
insufficient to support his convictions of AWIM because the evidence failed to show that he
assaulted the victims with the intent to commit murder. He also challenges the adequacy of the
trial court’s findings of fact and conclusions of law. “We review de novo a challenge to the
sufficiency of the evidence in a bench trial, viewing the evidence in the light most favorable to the
prosecution and determining whether the trial court could have found the essential elements proved
beyond a reasonable doubt.” People v Ventura, 316 Mich App 671, 678; 894 NW2d 108 (2016).

                                   1. DEFENDANT’S SANITY

       MCL 768.21a provides:

               (1) It is an affirmative defense to a prosecution for a criminal offense that
       the defendant was legally insane when he or she committed the acts constituting
       the offense. An individual is legally insane if, as a result of mental illness . . . that
       person lacks substantial capacity either to appreciate the nature and quality or the
       wrongfulness of his or her conduct or to conform his or her conduct to the
       requirements of the law. Mental illness or having an intellectual disability does not
       otherwise constitute a defense of legal insanity.

               (2) An individual who was under the influence of voluntarily consumed or
       injected alcohol or controlled substances at the time of his or her alleged offense is
       not considered to have been legally insane solely because of being under the
       influence of the alcohol or controlled substances.

             (3) The defendant has the burden of proving the defense of insanity by a
       preponderance of the evidence.

 “Mental illness” is defined in MCL 330.1400(g) as “a substantial disorder of thought or mood that
significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the
ordinary demands of life.” Drs. Garver and Wallace both agreed that defendant suffered from a
mental illness as provided in these statutes. The doctors disagreed, however, whether defendant,
as a result of his mental illness, lacked substantial capacity either to appreciate the nature and
quality or the wrongfulness of his conduct or to conform his conduct to the requirements of the
law.

       In his brief on appeal, defendant argues that he satisfied his initial burden to set forth
evidence of his insanity and that the prosecution failed to rebut this evidence. Defendant, however,
misunderstands the insanity defense. Insanity is an affirmative defense. People v Mette, 243 Mich
App 318, 324; 621 NW2d 713 (2000). As such, the defendant bears the burden of proving his
                                                 -3-
insanity by a preponderance of the evidence. Id. at 324, 328. To be entitled to raise this defense,
the defendant must set forth evidence from which a reasonable factfinder may conclude that the
defendant was legally insane. People v Kolanek, 491 Mich 382, 411; 817 NW2d 528 (2012). The
prosecution bears no burden to refute the defendant’s claimed defense. Mette, 243 Mich App at
330. Rather, once the defendant produces sufficient evidence of the elements of the defense, then
the question whether he has asserted a valid defense is for the factfinder. Kolanek, 491 Mich at
411-412.

        Here, defendant met his initial burden to set forth evidence of his insanity by introducing
the expert opinion of Dr. Wallace that defendant was unable to understand what he was doing and
unable to control himself when he was under the delusion that his daughter had been transformed
into a raccoon. By setting forth this evidence, however, defendant did not shift the burden to the
prosecutor. Rather, the question of defendant’s sanity was for the trial court, sitting as factfinder,
to decide.

        The trial court considered Dr. Wallace’s opinion as well as the contrary opinion of Dr.
Garver, crediting the latter over the former. This Court will not interfere with a factfinder’s
credibility determinations. People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008). The
rule is especially applicable in this case, where two qualified experts offer reasonable, but
divergent opinions. Moreover, while Dr. Wallace opined that defendant lacked the capacity to
appreciate the nature or wrongfulness of his conduct or to conform his conduct to the law, Dr.
Garver’s testimony revealed potential errors in that conclusion. There was no reasonable
explanation why defendant could recall the details of the offense with Dr. Garver, but not during
his later interview with Dr. Wallace. Additionally, defendant did not inform Dr. Wallace that he
had voluntarily consumed intoxicants on the day of the offense, which precluded Dr. Garver from
making a determination as to whether defendant’s intoxication caused his aggression.

        Defendant argues that the trial court’s finding that he was not legally insane misapplied
MCL 768.21a because his intoxication was not the sole reason for his behavior. According to
defendant, “a mixture of mental illness and substance abuse” does not disqualify a defendant from
claiming mental insanity. Nonetheless, even if defendant’s interpretation of MCL 768.21a is
correct, there was sufficient evidence in the record to conclude that defendant’s voluntary
intoxication was the sole reason for his behavior. Dr. Garver testified that defendant revealed that
he drank a pint of liquor between midnight and 7:00 a.m. before the incident. Defendant also
revealed that he was feeling the effects of Lean during the incident and that his hallucinations and
the stabbings were possibly related to the influence of Lean. Dr. Garver stated that most persons
feel relaxed when they use Lean, but some users hallucinate and behave erratically. While
defendant had been off his psychotropic medication for several months before the incident,
residents reported that he was generally amicable with them. Given defendant’s generally
agreeable pre-offense disposition, a rational factfinder could conclude that defendant’s Lean use—
rather than his long-term mental illness—was the cause of defendant’s hallucinations and violent
outburst. Thus, we conclude that the record evidence supports the trial court’s finding that
defendant had not proven his insanity defense by a preponderance of the evidence.




                                                 -4-
                                   2. DEFENDANT’S INTENT

        Defendant also argues that the evidence was insufficient to support his AWIM convictions
because the prosecution did not prove that defendant had an intent to kill Taiwo or Speight. The
elements of AWIM are “(1) an assault, (2) with an actual intent to kill, (3) which, if successful,
would make the killing murder.” People v Brown, 267 Mich App 141, 147-148; 703 NW2d 230
(2005) (internal citation and quotation marks omitted). A defendant must possess the specific
intent to kill, rather than merely a wanton and willful disregard of the likelihood that his actions
will result in death. Id. at 149-150. “Because of the difficulty of proving an actor’s state of mind,
minimal circumstantial evidence is sufficient.” People v Ericksen, 288 Mich App 192, 197; 793
NW2d 120 (2010) (internal citation, quotation marks, and brackets omitted).

        Defendant argues that his conduct was surprising and inconsistent with his amicable past
relationships with the victims. While this may be true, it does not mean that defendant lacked an
intent to kill during this particular incident. Testimony indicated that defendant pursued Speight
and Taiwo into Taiwo’s apartment and stabbed them repeatedly and violently. The attack did not
end until Talley forced defendant out of the apartment with a bat. Defendant then tried to reenter
the apartment, and left only after Talley threatened to shoot him with a gun. Defendant’s persistent
and aggressive attempts to harm Taiwo and Speight were sufficient for a rational factfinder to
conclude that defendant intended to murder the victims.2

                    3. ADEQUACY OF THE TRIAL COURT’S FINDINGS

         Defendant alternatively challenges the adequacy of the trial court’s findings of fact
regarding his sanity and intent. In a bench trial, “[t]he court must find the facts specially, state
separately its conclusions of law, and direct entry of the appropriate judgment. The court must
state its findings and conclusions on the record or in a written opinion made part of the record.”
MCR 6.403. The trial court is not required to make specific findings of fact regarding each element
of the crime charged, People v Legg, 197 Mich App 131, 134; 494 NW2d 797 (1992), but its
findings should show how it resolved credibility issues and other conflicts in the evidence, People
v Ramsey, 89 Mich App 468, 477; 280 NW2d 565 (1979). “Factual findings are sufficient as long
as it appears that the trial court was aware of the issues in the case and correctly applied the law.”
Legg, 197 Mich App at 134.




2
  By arguing that his conduct was surprising and inconsistent with his past relationships with the
victims, defendant appears to imply that his mental illness prevented him from purposefully
forming an intent to murder. In People v Carpenter, 464 Mich 223, 236; 627 NW2d 276 (2001),
our Supreme Court concluded that “the Legislature’s enactment of a comprehensive statutory
scheme concerning defenses based on either mental illness or mental retardation demonstrates the
Legislature’s intent to preclude the use of any evidence of a defendant’s lack of mental capacity
short of legal insanity to avoid or reduce criminal responsibility by negating specific intent.”
Consequently, defendant’s mental impairment short of insanity is irrelevant to determining
whether he had an intent to kill.

                                                 -5-
       The two principal issues at trial were (1) whether defendant was legally insane, and (2)
whether defendant intended to kill Taiwo and Speight. During closing arguments, in addition to
arguing the issue of defendant’s sanity, the parties addressed whether the appropriate offense was
AWIM or AWIGBH. Because both of these issues were contested, the trial court was required to
make pertinent findings of fact and conclusions of law regarding both matters.

        With regard to defendant’s sanity, the trial court found that defendant had proven by a
preponderance of the evidence that he was mentally ill, but failed to prove that he lacked
substantial capacity either to appreciate the nature and quality or wrongfulness of his conduct or
to conform his conduct to the law. Although the trial court did not comment on the conflicting
testimony regarding this issue, its questioning of witnesses indicated that it was fully aware of the
two doctor’s findings and conclusions. The trial court’s conclusion that defendant was not legally
insane indicates that it found Dr. Garver’s opinion more credible that Dr. Wallace’s opinion. We
are satisfied that the trial court was aware of the factual issue regarding defendant’s sanity and
resolved it. Legg, 197 Mich App at 134-135. Remand for further factual findings is unnecessary.
Id.

        Regarding defendant’s intent, the parties did not disagree that defendant committed the
assaults. The parties acknowledged in their closing arguments that the trial court’s duty was to
make a factual determination whether defendant had an intent to kill or only an intent to do great
bodily harm less than murder. Initially, the trial court shirked this duty by finding defendant guilty
of both AWIM and AWIGBH for the same conduct. The trial court corrected this mistake,
however, by striking the AWIGBH convictions, indicating that it found that defendant had an
intent to kill the victims. Accordingly, we are satisfied that the trial court was aware of the factual
issue regarding defendant’s intent and resolved it. Id. Remand for a more definite statement of
factual findings is not necessary. Id.

                                 B. ASSISTANCE OF COUNSEL

                               1. EFFECTIVENESS OF COUNSEL

       Defendant argues that he was denied the effective assistance of counsel. A defendant
requesting reversal of an otherwise valid conviction bears the burden of establishing “(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).

       Defendant argues that trial counsel was ineffective for failing to present additional and
more specific evidence in support of his legal insanity defense. Defendant argues that trial counsel
should have questioned the expert witnesses regarding defendant’s diagnoses of schizophrenia,
schizoaffective disorder, and bipolar disorder, but fails to explain what additional information
could have been gleaned from this questioning or how further questioning would have aided his
defense. Defendant argues that trial counsel was ineffective for failing to retain a third expert to
evaluate Dr. Garver’s and Dr. Wallace’s opinions, but has not provided any evidence of an expert
that would benefit his defense more than Dr. Wallace.


                                                 -6-
        Defendant also argues that trial counsel should have presented statistical evidence
concerning the effects of alcohol, marijuana, and Lean. According to defendant, trial counsel
should have elicited defendant’s testimony regarding how recently he used Lean and marijuana
before the incident. Again, however, defendant has not provided any evidence of studies beneficial
to his defense, and defendant has not shown that further testimony on his Lean and marijuana use
would have aided his defense. Finally, defendant argues that trial counsel should have questioned
the witnesses regarding defendant’s sleep deprivation and how it might have affected his behavior
and state of mind. Sleep deprivation, however, is not a defense to assault and is not evidence of
legal insanity. Defendant fails to explain how this evidence would have aided his defense.

        Defendant “bears the burden of establishing the factual predicate for his claim.” People v
Putman, 309 Mich App 240, 248; 870 NW2d 593 (2015) (internal citation and quotation marks
omitted). Because defendant has failed to show this Court that trial counsel failed to present
evidence beneficial to defendant’s case, his claim of ineffective assistance is without merit. For
this same reason, defendant has also failed to demonstrate that remand for an evidentiary hearing3
is warranted. See People v McMillan, 213 Mich App 134, 141-142; 539 NW2d 553 (1995).

                               2. SUBSTITUTION OF COUNSEL

        Next, defendant argues that the trial court erred by denying his request for new appointed
counsel without adequately inquiring into the reasons for his dissatisfaction. The trial court’s
decision regarding substitution of counsel is reviewed for an abuse of discretion. People v Traylor,
245 Mich App 460, 462; 628 NW2d 120 (2001). “An abuse of discretion occurs when the trial
court’s decision is outside the range of principled outcomes.” People v Daniels, 311 Mich App
257, 265; 874 NW2d 732 (2015).

        To be entitled to substitute counsel, an indigent defendant must show good cause for the
substitution. People v Buie (On Remand), 298 Mich App 50, 67; 825 NW2d 361 (2012) (internal
citation and quotation marks omitted). “Good cause may exist when a legitimate difference of
opinion develops between a defendant and his appointed counsel as to a fundamental trial tactic,
when there is a destruction of communication and a breakdown in the attorney-client relationship,
or when counsel shows a lack of diligence or interest.” People v McFall, 309 Mich App 377, 383;
873 NW2d 112 (2015) (internal citations and quotation marks omitted). “A mere allegation that a
defendant lacks confidence in his or her attorney, unsupported by a substantial reason, does not
amount to adequate cause. Likewise, a defendant’s general unhappiness with counsel’s
representation is insufficient.” Id. (internal citation and quotation marks omitted). “When a
defendant asserts that his assigned lawyer is not adequate or diligent or asserts . . . that his lawyer
is disinterested, the judge should hear his claim and, if there is a factual dispute, take testimony
and state his findings and conclusions.” People v Ginther, 390 Mich 436, 441-442; 212 NW2d
922 (1973).

       In the instant case, the trial court inquired into defendant’s reasons for wanting new
counsel. Defendant complained that defense counsel had not provided him with the discovery



3
    See People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).

                                                 -7-
packet and had only visited him once. The trial court confirmed that defense counsel would
provide defendant with the discovery packet and visit defendant to discuss the case. There is no
evidence that defense counsel failed to do so and defendant did not raise any issue regarding his
counsel at any subsequent conference. Because the trial court addressed defendant’s concerns to
defendant’s apparent satisfaction, we are unable to conclude that the trial court abused its
discretion by denying defendant’s motion to substitute counsel or by not inquiring into the matter
further.

                        C. HABITUAL-OFFENDER ENHANCEMENT

        Finally, defendant challenges his sentencing-guidelines range. Defendant’s total Offense
Variable (OV) score under the guidelines was 75 points, placing him in OV Level IV. His Prior
Record Variable (PRV) score was 52 points, placing him in PRV Level E. These scores resulted
in a minimum sentence range of 135 to 225 months for AWIM. MCL 777.62. Enhanced for a
fourth-offense habitual offender, defendant was subjected to a mandatory 25-year minimum
sentence, MCL 769.12(1)(a), and an increase in the upper end of his guidelines range to 450
months, MCL 777.21(3)(c). Defendant does not challenge his PRV or OV scores. Rather,
defendant argues that the prosecution’s failure to comply with the notice provisions of MCL
769.13 precluded the trial court from applying the fourth-habitual sentence enhancement, MCL
769.12.

       MCL 769.13 provides, in pertinent part:

               (1) In a criminal action, the prosecuting attorney may seek to enhance the
       sentence of the defendant as provided under section 10, 11, or 12 of this chapter,
       by filing a written notice of his or her intent to do so within 21 days after the
       defendant's arraignment on the information charging the underlying offense or, if
       arraignment is waived, within 21 days after the filing of the information charging
       the underlying offense.

               (2) A notice of intent to seek an enhanced sentence filed under subsection
       (1) shall list the prior conviction or convictions that will or may be relied upon for
       purposes of sentence enhancement. The notice shall be filed with the court and
       served upon the defendant or his or her attorney within the time provided in
       subsection (1). The notice may be personally served upon the defendant or his or
       her attorney at the arraignment on the information charging the underlying offense,
       or may be served in the manner provided by law or court rule for service of written
       pleadings. The prosecuting attorney shall file a written proof of service with the
       clerk of the court.

In this case, the prosecution sought the fourth-offender enhancement in the felony warrant and
information, which complied in all relevant aspects to the form requirements set forth in MCL
769.13(2). Defendant does not challenge the trial court’s compliance with MCL 769.13’s form
provision; rather, on appeal, defendant argues that he was not served with an amended information
after the arraignment. The prosecution “impliedly concede[s]” that defendant was not properly
served. Despite this apparent error, we conclude that defendant is not entitled to resentencing.
“The failure to file a proof of service of the notice of intent to enhance the defendant's sentence

                                                -8-
may be harmless if the defendant received the notice of the prosecutor's intent to seek an enhanced
sentence and the defendant was not prejudiced in his ability to respond to the habitual-offender
notification.” People v Head, 323 Mich App 526, 543-544; 917 NW2d 752 (2018). Here,
defendant was arraigned on the information, which contained the relevant material required by
MCL 769.13(2). Indeed, the habitual-offender enhancement was discussed at the arraignment in
the context of plea negotiations between the parties. Moreover, the case was flagged by the register
of actions as involving a habitual-offender enhancement. Defendant raised no substantive
challenge to the enhancement at sentencing and, on appeal, makes no showing that the service
error prejudiced his ability to present any relevant argument at sentencing. Accordingly, because
the prosecution’s apparent failure to serve post-arraignment notice of the its intent to seek an
enhanced sentence did not prejudice defendant’s ability to respond to the enhancement sought, we
conclude that he is not entitled to resentencing. See id. at 542-547.

       Affirmed.



                                                             /s/ Kathleen Jansen
                                                             /s/ Patrick M. Meter
                                                             /s/ Elizabeth L. Gleicher




                                                -9-
