                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 24, 2015
               Plaintiff-Appellee,

v                                                                  No. 318566
                                                                   Wayne Circuit Court
RUSSELL JOSEPH GERMANO,                                            LC No. 13-003496-FH

               Defendant-Appellant.


Before: SERVITTO, P.J., and STEPHENS and M. J. KELLY, JJ.

PER CURIAM.

        Defendant Russell Joseph Germano appeals by right his jury convictions of torture, MCL
750.85, unlawful imprisonment, MCL 750.349b, and felonious assault, MCL 750.82. The trial
court sentenced him to serve 13 to 20 years in prison for the torture conviction, to serve 4 to 15
years in prison for the unlawful imprisonment conviction, and to serve one to four years in prison
for the felonious assault conviction. Because we conclude there were no errors warranting relief,
we affirm.

        Germano first argues that there was insufficient evidence for a rational jury to convict
him of torture. Specifically, he contends that there was no evidence that Joseph Cox suffered an
injury when he put Cox’s hand into a bucket of water with a submerged extension cord. He
further maintains that there was also no evidence Cox experienced severe mental pain or
suffering as a result of the incident.

        When reviewing a challenge to the sufficiency of the evidence, this Court reviews the
record evidence de novo in the light most favorable to the prosecution to determine whether a
rational trier of fact could have found that the essential elements of the crime were proved
beyond a reasonable doubt. People v Roper, 286 Mich App 77, 83; 777 NW2d 483 (2009).

        In order to convict Germano of torturing Cox, the prosecution had to prove that Germano
intended “to cause cruel or extreme physical or mental pain and suffering” to Cox, inflicted
“great bodily injury or severe mental pain or suffering” upon Cox, and did so while Cox was in
Germano’s “custody or physical control . . . .” MCL 750.85(1). There is no evidence that
Germano and his codefendant, Cody Smith, caused great bodily injury to Cox as that term is
defined under MCL 750.85(2)(c). As such, the issue on appeal is whether there was evidence
from which a reasonable jury could find that Germano intended to cause Cox cruel or extreme
severe mental pain or suffering and actually caused him to suffer severe mental pain or suffering.
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        The legislature defined the term “[c]ruel” to mean “brutal, inhuman, sadistic, or that
which torments.” MCL 750.85(2)(a). “Severe mental pain or suffering” means “a mental injury
that results in a substantial alteration of mental functioning that is manifested in a visibly
demonstrable manner caused by or resulting from any of the following:”

       (i) The intentional infliction or threatened infliction of great bodily injury.

       (ii) The administration or application, or threatened administration or application,
       or mind-altering substances or other procedures calculated to disrupt the senses or
       the personality.

       (iii) The threat of imminent death.

       (iv) The threat that another person will imminently be subjected to death, great
       bodily injury, or the administration or application of mind-altering substances or
       other procedures calculated to disrupt the senses or personality. [MCL
       750.85(2)(d).]

        Cox testified that when Germano dipped his hand into the bucket of water with the
extension cord, he feared that he was going to die. Cox also stated that he considered jumping
from his second story window in order to escape Germano and Smith. Cox reported the attack to
a police officer shortly afterward and the officer testified that Cox was teary-eyed and emotional;
he stated that Cox’s eyes appeared bloodshot and that he had to calm Cox down before he could
take the report. Although the prosecution did not present any medical evidence regarding Cox’s
mental injury, taking the evidence in the light most favorable to the prosecution, a rational jury
could have concluded that Cox did, in fact, experience severe mental pain or suffering. Germano
confronted Cox with the threat of imminent death under MCL 750.85(2)(d)(iii) or the threat of
great bodily injury under MCL 750.85(2)(d)(i) when he placed Cox’s hand in the water with the
extension cord. There was no evidence that Germano knew or believed the extension cord could
not harm Cox. Further, Cox stated that he was so traumatized by the incident that he could no
longer bear to live in the apartment, and was forced to move. Cox testified that he believed he
was going to die, and the officer’s testimony established that Cox’s mental anguish was visible
within the meaning of MCL 750.85(2)(d). There was sufficient evidence to support the jury’s
finding that Germano tortured Cox. Roper, 286 Mich App at 83.

       In a brief submitted on his own behalf, Germano argues that the trial court impermissibly
abandoned the bench during the trial and illegally reassigned the case to another judge without a
written order or good cause. Specifically, he maintains the trial court violated the court rules
when it asked another judge to take the jury’s verdict.

        After the trial court sent the jury for deliberations, it informed the parties that it would be
out of the building later in the day and that a different judge would “take the verdict or handle
any questions that come up . . . .” Germano’s lawyer did not object to the trial court’s handling
of the situation. Accordingly, this claim of error is unpreserved. This Court reviews
unpreserved claims of error for plain error affecting the defendant’s substantial rights. People v
Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). In order to warrant relief, Germano



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must demonstrate that the trial court made an obvious error and that the error affected the
outcome of the lower court proceedings. Id. at 763.

        Generally, “a judge cannot finish the performance of a duty already entered upon by his
predecessor where that duty involves the exercise of judgment and the application of legal
knowledge to, and judicial deliberation of, facts known only to the predecessor.” People v
McCline, 442 Mich 127, 133; 499 NW2d 341 (1993) (quotation marks and citation omitted).
There are circumstances when a judge may be substituted for another after trial begins, but the
substitution must meet certain criteria. See MCR 6.440(A); MCR 8.111(C). But a trial court’s
failure to comply with these procedures does not automatically warrant a new trial; rather, the
defendant must demonstrate that the reassignment of trial court judges prejudiced him or her.
People v Bell, 209 Mich App 273, 275; 530 NW2d 167 (1995).

        In this case, Judge Parker presided over jury selection, opening statements, the trial,
closing arguments, and the charging of the jury. After the jury was sent to deliberate, Judge
Parker noted that she had to leave and stated that she had arranged for Judge Ewell to “take the
verdict or handle any questions that come up . . . .” Approximately two hours later, Judge Ewell
took the jury’s verdict and polled the jurors; beyond that, Judge Ewell had no involvement in the
case. Given this record, even assuming that Judge Parker failed to follow the court rules when
she arranged for Judge Ewell to take the verdict, Germano has failed to show that the substitution
had any effect—let alone prejudicial effect—on the proceedings. Judge Ewell did not make any
rulings and was only on the record for approximately five minutes while the verdict was read and
the jurors polled. A defendant cannot demonstrate prejudice where the substituting judge “did
nothing that required his presence at the trial and did not make any decision that was dependent
in any way on any information presented during the trial.” People v Wilson, 265 Mich App 386,
390; 695 NW2d 351 (2005). Because Germano has not demonstrated that he was prejudiced by
Judge Ewell taking the bench in this case, he is not entitled to a new trial.

        Germano also argues that his trial lawyer did not provide effective assistance.
Specifically, he contends that his lawyer failed to investigate and produce several pieces of
exonerating evidence. Because the trial court did not hold an evidentiary hearing on this claim
of error, our review is limited to mistakes that are apparent on the record. People v Gioglio (On
Remand), 296 Mich App 12, 20; 815 NW2d 589 (2012), vacated not in relevant part 493 Mich
864.

        In order to establish ineffective assistance warranting relief, Germano must demonstrate
that his lawyer’s acts or omissions fell below an objective standard of reasonableness under
prevailing professional norms and that there is a reasonable probability that, but for the acts or
omissions, the result of the proceeding would have been different. Id. at 22. He must also
overcome the strong presumption that his lawyer’s acts or omissions constituted sound strategy.
See People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). “Reviewing courts are not
only required to give counsel the benefit of the doubt with this presumption, they are required to
‘affirmatively entertain the range of possible’ reasons that counsel may have had for proceeding
as he or she did.” Gioglio, 296 Mich App at 22. We must conclude that Germano’s lawyer’s
acts or omissions “fell within the range of reasonable professional conduct if, after affirmatively
entertaining the range of possible reasons for the act or omission under the facts known to [us],
there might have been a legitimate strategic reason for the act or omission.” Id. at 22-23.

                                                -3-
         Germano argues that his lawyer failed to investigate evidence that would have
undermined Cox’s credibility; specifically, he contends that his lawyer should have produced
evidence regarding Cox’s phone records to prove that he and Smith never robbed Harbor Freight
and that Cox never called the police department. However, Cox testified at trial that he called
Harbor Freight, not the police department, to warn about Germano and Smith’s plan to rob the
store. Further, there was no testimony that they actually robbed Harbor Freight, nor is it
apparent how that fact would be relevant to Germano’s guilt. Because the phone records had
little or no relevance, we must conclude that Germano’s lawyer reasonably concluded that it was
unnecessary to obtain these records. Gioglio, 296 Mich App at 22-23.

         Germano similarly argues that his lawyer should have called Cox’s neighbors as
witnesses because they would have been able to hear loud noises coming from the apartment
during the attack. However, he does not identify any specific people who were in the vicinity at
the time of the incident, nor what their potential testimony would be or how it would have any
relevance to the facts of this case. Accordingly, he has failed to establish the factual predicate
for this claim. Id. at 24-25.

        Germano argues that his lawyer should have presented evidence regarding the inability of
the extension cord to actually deliver an electric shock to Cox. However, it was evident from the
testimony at trial that the cord did not physically harm Cox and testimony that the electric cord
could not deliver a dangerous shock would not have been particularly useful to the defense.
Here there was no evidence that Cox knew with certainty that the electrical cord could not harm
him. To the contrary, Cox testified that he believed that he was about to be electrocuted and
would die. Because the primary issue at trial involved the effect that Germano and Smith’s
actions had on Cox, a reasonable trial lawyer could conclude that expert testimony explaining
that Germano’s method of choice for tormenting Cox was unlikely to actually harm him was not
relevant. Instead, Germano’s lawyer could reasonably conclude that the best way to defend
Germano was to highlight inconsistencies in Cox’s testimony to show that he did not actually
suffer physically or mentally. Id. at 22-23.

       Germano failed to establish that his trial lawyer’s decisions concerning the evidence fell
below an objective standard of reasonableness. Id.

        For his final argument, Germano asserts that he was deprived of counsel during a critical
stage of the trial. He specifically states that his lawyer’s failure to object to the substitution of
trial court judges constituted a constructive deprivation of counsel. Further, he argues that his
lawyer had a conflict of interest because he could not object to the substitution without risking
future hostility from the judge.

         Germano had the right to have counsel at all critical stages of the criminal process.
People v Willing, 267 Mich App 208, 219; 704 NW2d 472 (2005). Here, it is plain that Germano
had his trial lawyer present and available when the trial court elected to substitute another judge
for the taking of the verdict. Germano’s lawyer’s failure to object to the substitution did not
constitute constructive deprivation of counsel; rather, the failure to object must be assessed, if at
all, in light of the constitutional right to the effective assistance of counsel, which Germano has
not done.


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There were no errors warranting relief.

Affirmed.



                                                /s/ Deborah A. Servitto
                                                /s/ Cynthia Diane Stephens
                                                /s/ Michael J. Kelly




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