                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     October 20, 2016
               Plaintiff-Appellee,

v                                                                    No. 328047
                                                                     Wayne Circuit Court
PATRICK DEWAYNE WILSON,                                              LC No. 14-009079-FC

               Defendant-Appellant.


Before: GADOLA, P.J., and BORRELLO and STEPHENS, JJ.

PER CURIAM.

        Following a bench trial, defendant was convicted of unlawful imprisonment, MCL
750.349b, assault with intent to do great bodily harm less than murder, MCL 750.84, and assault
by strangulation, MCL 750.84(1)(b). He was sentenced as a fourth habitual offender, MCL
769.12, to 15 to 30 years’ imprisonment for each conviction. Defendant appeals as of right. For
the reasons set forth in this opinion, we affirm the convictions and sentences of defendant.

                                       I. BACKGROUND

         This appeal arises out of a domestic assault that occurred on September 24, 2014,
between defendant and his wife, Algina Wilson. At defendant’s trial, Algina testified that
defendant choked her with an exercise cord and that, after seeing a knife in his hand pointed
toward her stomach, she believed he was going to stab her. She used her hands to block the
knife and sustained severe injuries to her hands in the process. Algina indicated that she lost
consciousness after cutting her hands and, when she woke up, defendant swallowed a bottle of
prescription pills before eventually allowing her to leave the house. By contrast, defendant
testified that Algina threatened him on the date of the incident, then attacked him with a knife as
he was putting away laundry. According to defendant, Algina cut her hands when he tried to
remove it from her hands. Defendant admitted that he put his hands on her neck in anger, but
asserted that he was acting in self-defense.

         After both parties rested and made their closing arguments, the trial court adjourned the
trial to review the medical records and photographic exhibits presented by the prosecutor, and
advised the parties that the court would announce a verdict the following week. When the trial
recommenced four days later, defense counsel moved to reopen the proofs for the purpose of
providing character evidence regarding defendant’s character for truthfulness and being a law-
abiding citizen. Noting that it had already reached a decision in the matter, the trial court denied
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defendant’s motion and found defendant guilty of unlawful imprisonment, assault with intent to
do great bodily harm less than murder, and assault by strangulation. This appeal then ensued.

                                          II. ANALYSIS

         On appeal, defendant argues two related claims of error. First, defendant argues that the
trial court erred by denying his motion to reopen the proofs because the character evidence was
critical to the success of his self-defense theory. Alternatively, defendant asserts that he was
denied the effective assistance of counsel when his trial counsel failed to properly interview or
call his mother, Elma Jean Wilson Thomas, to testify as a character witness on defendant’s
behalf.

        This Court reviews a trial court’s ruling on a motion to reopen proofs for an abuse of
discretion. People v Herndon, 246 Mich App 371, 419; 633 NW2d 376 (2001). “An abuse of
discretion occurs when the court chooses an outcome that falls outside the range of reasonable
and principled outcomes.” People v Bergman, 312 Mich App 471, 483; 879 NW2d 278 (2015),
quoting People v Unger, 278 Mich App 210, 216; 749 NW2d 272 (2008). It is within the sound
discretion of the trial court whether to allow a party to reopen the proofs after having rested.
People v Solomon, 220 Mich App 527, 532; 560 NW2d 651 (1996), citing People v Collier, 168
Mich App 687, 694; 425 NW2d 118 (1988). The trial court should consider “whether any undue
advantage would be taken by the moving party and whether there is any showing of surprise or
prejudice to the nonmoving party.” Herndon, 246 Mich App at 420. When this Court reviews a
trial court’s exercise of discretion in this regard, several factors are pertinent, including “whether
conditions have changed or undue advantage would result, whether newly discovered and
material evidence is sought to be admitted, whether surprise would result, and the timing of the
motion during the trial.” People v Moore, 164 Mich App 378, 383; 417 NW2d 508 (1987), mod
on other grounds by 433 Mich 851 (1989).

        In Collier, this Court found an abuse of discretion where the trial court denied the
defendant’s request to reopen the proofs for testimony from a late-arriving character witness.
Collier, 168 Mich App at 694, 697. After both parties had rested, but before closing arguments
were made, defense counsel moved to reopen the proofs to proffer character evidence. Id. at
694. In support of its conclusion that the trial court abused its discretion by denying the
defendant’s motion, the Collier court noted the following: the defendant’s character for
truthfulness and honesty was particularly relevant because his testimony regarding the altercation
was completely disparate with the account provided by the complaining witness; the court had
ruled that the defendant’s previous character witness did not provide proper character evidence
and, therefore, did not issue a character evidence instruction to the jury; having cross-examined
defendant’s previous character witness, the prosecutor was on notice that character evidence
would be introduced in the case; and the request was made before closing arguments were made
or jury instructions were issued. Id. at 695-696.

        The facts presented in this case are far different than the facts presented to this Court in
Collier. By way of example, in this matter, defendant failed to make his request until after
closing arguments. Next, defendant never named his character witness, and he failed to notify
the prosecutor that character evidence was likely to be introduced. Additionally, defendant never
demonstrated, or even suggested that the reason for bringing such a late request was based on a

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change of circumstances or newly discovered evidence which would warrant the reopening of
proofs. Moreover, in this case, had the trial court granted defendant’s motion, he likely would
have received an unfair advantage. In moving to reopen the proofs, defense counsel explained
that defendant wished to call character witnesses regarding his own character, as well as Algina’s
character, because he was not happy with the pretrial investigation or his communications with
defense counsel. On appeal, defendant identified only one witness—Thomas—who would have
provided such testimony. However, Thomas attended the trial, had spoken to defense counsel on
several occasions, and could have been called to testify before the proofs were closed. Thus, this
was not a situation involving a late-arriving witness or newly discovered evidence, but rather
defendant’s attempt to take a second bite at the apple.

        Following our review of the record and the reasons set forth by the trial court in rendering
its opinion relative to the reopening of proofs, we cannot find that the trial court abused its
discretion by denying defendant’s request to reopen the proofs for purposes of presenting
character evidence from an arguably biased witness, which was made just before the trial court
announced its verdict and without any suggestion that the conditions had changed or new
evidence had been discovered. Furthermore, contrary to his assertions on appeal, in so ruling,
the trial court did not deprive defendant of his right to present a defense because defendant’s
self-defense theory was presented to the trial court by way of defendant’s testimony, defense
counsel’s cross-examination of Algina, and defense counsel’s closing argument. See People v
Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004) (finding that the defendant was not
deprived of a substantial defense where defense counsel raised the defense through cross-
examination of the complainant and in his closing argument). Accordingly, defendant is not
entitled to relief on this issue.

        Next, defendant argues that his counsel’s failure to interview his mother and call her to
the witness stand constituted ineffective assistance of counsel. To preserve a claim of ineffective
assistance of counsel, the defendant must bring a motion for a new trial or request a Ginther1
hearing to establish the basis for his claim. People v Sabin (On Second Remand), 242 Mich App
656, 658; 620 NW2d 19 (2000). Defendant failed to request a new trial or Ginther hearing in the
trial court, and this Court denied his motion to remand for that purpose. Therefore, this issue is
not preserved for appeal.

        Ineffective assistance of counsel claims present a mixed question of fact and
constitutional law. People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). Findings
of fact are generally reviewed for clear error, and rulings on questions of constitutional law are
reviewed de novo. Id. However, when the defendant’s ineffective assistance of counsel claim
was not preserved at the trial court level, as is the case here, this Court’s review is limited to
errors that are apparent from the record on appeal. People v Matuszak, 263 Mich App 42, 48;
687 NW2d 342 (2004).

      To establish a claim of ineffective assistance of counsel, the defendant must show that:
(1) counsel’s representation at the proceeding “fell below an objective standard of


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


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reasonableness”; and (2) but for counsel’s deficient performance, there is a reasonable
probability that the outcome of the proceeding would have been different. People v Vaughn, 491
Mich 642, 670; 821 NW2d 288 (2012), citing Strickland v Washington, 466 US 668, 688-694;
104 S Ct 2052; 80 L Ed 2d 674 (1984). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884
(2001), quoting Strickland, 446 US at 694. This Court presumes that defense counsel rendered
effective assistance and exercised reasonable professional judgment in all significant decisions.
Vaughn, 491 Mich at 670. The defendant must “overcome the strong presumption that counsel’s
performance was born from a sound trial strategy.” People v Trakhtenberg, 493 Mich 38, 52;
826 NW2d 136 (2012). “Because the defendant bears the burden of demonstrating both deficient
performance and prejudice, the defendant necessarily bears the burden of establishing the factual
predicate for his claim.” Carbin, 463 Mich at 600.

         On appeal, defendant argues that defense counsel’s performance was deficient because he
failed to discuss the possibility of presenting character evidence with Thomas during their
pretrial conversations or call her as a character witness to bolster the credibility of his self-
defense theory. However, in support of his claim of error, defendant relies solely on the affidavit
provided by Thomas for the instant appeal, rather than evidence contained in the lower court
record. Pursuant to MCR 7.210(A)(1), the record on appeal consists of “the original papers filed
in [the lower] court or a certified copy, the transcript of any testimony or other proceedings in the
case appealed, and the exhibits introduced.” Thus, defendant’s reliance on Thomas’s affidavit is
misplaced, as it constitutes an improper attempt to expand the record on appeal beyond the
information presented in the lower court. See People v Williams, 241 Mich App 519, 524 n 1;
616 NW2d 710 (2000) (providing that parties may not expand the lower court record by
attaching affidavits to their briefs on appeal).

        Relying solely on information contained in the lower court record, defendant has failed to
establish the factual predicate for his ineffective assistance of counsel claim. Generally,
“[d]ecisions regarding whether to call or question witnesses are presumed to be matters of trial
strategy.” People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). Although defense
counsel’s decision not to call a witness can result in ineffective assistance if it deprives the
defendant of a substantial defense, id., it is clear from the record that defendant’s self-defense
theory was adequately developed at trial.

       To avoid criminal liability for an assault based on a claim of self-defense, the defendant
must present evidence demonstrating that a prima facie case of self-defense exists. People v
Stevens, 306 Mich App 620, 630; 858 NW2d 98 (2014).

       Under MCL 780.972(1):

       “An individual who has not or is not engaged in the commission of a crime at the
       time he or she uses deadly force may use deadly force against another individual
       anywhere he or she has the legal right to be with no duty to retreat if . . .

       (a) The individual honestly and reasonably believes that the use of deadly force is
       necessary to prevent the imminent death of or imminent great bodily harm to


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       himself or herself or to another individual.” [Stevens, 306 Mich App at 630
       (alteration in original).]

Defense counsel elicited testimony from defendant indicating that the incident occurred while he
and Algina were in their home, a place he had a legal right to be, and that he believed he was in
danger based on Algina’s alleged threats and previous assaults against him. Defendant further
testified that, though he did put his hands on Algina’s neck, he was only trying to defend himself
after Algina attacked him with a knife. Defense counsel also argued defendant’s self-defense
theory during his closing arguments. Thus, defendant’s self-defense claim was adequately
developed and presented at trial.

       Because defendant was not deprived of a substantial defense by defense counsel’s
decision not to call Thomas as a witness at trial, defendant has failed to overcome the strong
presumption that the decision was born from sound trial strategy.

        However, even if we were to find that defense counsel’s decisions relative to the matter
of defendant’s mother’s testimony fell below an objective standard of reasonableness such that
they constituted ineffective assistance of counsel, defendant has not overcome his burden of
demonstrating the prejudice necessary to grant him relief. Vaughn, 491 Mich at 670. In this
case, the trial court, sitting as the fact-finder, found that the physical evidence led the court to
believe the victim’s testimony. In support of this conclusion, the trial court stated it relied on
photographs and medical records in order to properly assess which witnesses were truthful. The
trial court found that during his testimony, defendant admitted to choking the victim, though he
stated he had done so with his hands. However, the medical records indicated that the marks
around the neck were more consistent with a cord---the same type of cord the victim testified
defendant used to choke her. Additionally, medical records reveal that the type of wounds on the
victim’s hands were consistent with a defensive wound. This evidence was consistent with the
victim’s testimony. The trial court also noted that photographs of the bedroom revealed that all
of the phones had been placed in the bedroom. Again, the trial court found that the physical
evidence was consistent with the victim’s testimony. From these findings made by the trial
court, it is obvious that the trial court relied on the physical evidence in order to gauge the
truthfulness of the witnesses and ultimately base its findings of guilt relative to this defendant.
Therefore, even if we presume that defendant’s mother did testify, and that she testified that her
son was the most peaceful person she had ever encountered in her life, and a man who would
never do harm to another, such evidence would not rebut the physical evidence which formed
basis on which the trial court reached its decision relative to defendant’s guilt. It therefore
becomes obvious to this Court that even assuming ineffective assistance of counsel in this case,
the record does not support defendant’s contention that he was prejudiced by defense counsel’s
performance at trial. In the absence of this Court having any factual or legal basis on which we
could find that but for counsel’s deficient performance, there was a reasonable probability that
the outcome of the proceeding would have been different, we must conclude that defendant is not
entitled to relief on this issue. Vaughn, 491 Mich at 670.




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Affirmed.



                  /s/ Michael F. Gadola
                  /s/ Stephen L. Borrello
                  /s/ Cynthia Diane Stephens




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