                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 10, 2016
               Plaintiff-Appellee,

v                                                                  No. 328475
                                                                   Wayne Circuit Court
HARRY MAINE, JR.,                                                  LC No. 15-000907-FC

               Defendant-Appellant.



Before: STEPHENS, P.J., and SAAD and METER, JJ.

PER CURIAM.

       Defendant was convicted of armed robbery, MCL 750.529, assault with a dangerous
weapon (felonious assault), MCL 750.82, and assault with intent to do great bodily harm less
than murder (assault GBH), MCL 750.84, as a lesser included offense of assault with intent to
murder, MCL 750.83. Defendant was sentenced, as a fourth habitual felony offender, MCL
769.12, to concurrent prison terms of 25 to 75 years for his armed robbery conviction, 42 months
to 10 years for his assault GBH conviction, and 1 to 4 years for his felonious assault conviction.
Defendant appeals as of right. We affirm.

       Defendant’s convictions stem from the stabbing of Latonya Gardner at the apartment of
Gardner’s boyfriend, Bruce Ready. Gardner and Ready both testified that defendant came into
the apartment threatening to kill Gardner if Ready did not give defendant money. Defendant
denied this version of events, testifying instead that Gardner had a gun and was attempting to rob
him, so, fearing for his life, he stabbed her in an attempt to disarm her. Defendant admitted that
he panicked, ran from the apartment, and did not call the police.

        Defendant asserts that he was deprived of a fair trial because the trial court did not
instruct the jury regarding how to consider evidence of his flight from the scene. Defendant
recognizes that a direct challenge to the jury instructions was waived when his trial counsel
expressed satisfaction with the instructions as given. People v Kowalski, 489 Mich 488, 503;
803 NW2d 200. Consequently, he argues that his trial counsel was ineffective for not requesting
the flight instruction. To preserve an ineffective-assistance-of-counsel claim, a defendant must




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move for a new trial or a Ginther1 hearing. People v Cox, 268 Mich App 440, 453; 709 NW2d
152 (2005). Defendant failed to do so. As a result, our review is limited to errors apparent on
the existing record. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).

       “A defendant in a criminal trial is entitled to have a properly instructed jury consider the
evidence against him or her.” People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007).
The trial court must instruct the jury on the applicable law, including “all the elements of the
offenses charged . . . and any material issues, defenses, and theories that are supported by the
evidence.” Id. Reversal is not required “if the instructions sufficiently protected the rights of the
defendant and fairly presented the triable issues to the jury.” Id.

         At trial, defendant testified that he stabbed Gardner accidentally in the chest when he was
trying to “poke[]” her arm so as to make her drop a gun. Defendant stated that he was in fear of
his life. He testified that he “panicked” after the struggle and “thought she might be dead,” so he
left the building and did not call the police. The prosecutor referred to defendant’s flight in his
closing argument, arguing that it showed that defendant did not act in self-defense. The jury was
instructed on self-defense. The parties agree that evidence of flight—such as fleeing the crime
scene—is admissible. People v Coleman, 210 Mich App 1, 4; 532 NW2d 885 (1995).

        Defendant suggests that the trial court should have instructed the jury about how to
consider his leaving the scene in evaluating all of the evidence. Because “[f]light can result from
factors other than guilt, and it is for the jury to determine what caused defendant to flee.” People
v Taylor, 195 Mich App 57, 63; 489 NW2d 99 (1992), he argues, the court should have given an
instruction consistent with M Crim JI 4.4, which states, in relevant part, as follows:

                (1) There has been some evidence that the defendant ran away after the
         alleged crime.

                 (2) This evidence does not prove guilt. A person may run or hide for
         innocent reasons, such as panic, mistake, or fear. However, a person may also run
         or hide because of a consciousness of guilt.

                (3) You must decide whether the evidence is true, and, if true, whether it
         shows that the defendant had a guilty state of mind.

Because there was no such instruction, defendant claims that the jury had no choice but to accept
the prosecutor’s argument that his flight inferred his guilt.

       To show that defense counsel was ineffective and to be afforded a new trial, a defendant
must establish (1) that counsel’s performance fell below an objective standard of reasonableness
and (2) that the defendant was prejudiced as a result of counsel’s performance. People v
Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012). A showing of prejudice means that “ ‘there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the


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



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proceeding would have been different.’ ” Id., quoting Strickland v Washington, 466 US 668,
694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).

        While there is evidence to support a flight instruction, a flight instruction may have been
detrimental to defendant’s case, as it instructs that “a person may also run or hide because of a
consciousness of guilt.” M Crim JI 4.4(2). Defense counsel may have weighed the benefit of
providing an instruction that the jury could conclude that he ran from the scene because he
panicked, included in a list of “innocent reasons” to run away after the crime, against the cost of
informing the jury that defendant’s having run could have been “because of a consciousness of
guilt.” He could have reasonably concluded it would be in defendant’s best interests not to offer
the instruction and allow the issue to be addressed in closing argument. Therefore, defense
counsel’s decision not to request the flight instruction should be presumed to be a reasonable
strategy, Vaughn, 491 Mich at 669, a decision the Court should “not second-guess . . . with the
benefit of hindsight,” People v Dunigan, 299 Mich App 579, 589-590; 831 NW2d 243 (2013).
Thus, defense counsel’s performance in this regard did not fall below an objective standard of
reasonableness.

        Furthermore, defendant was not prejudiced as there was substantial evidence of his guilt.
Both Gardner and Ready testified that defendant attacked Gardner at Ready’s apartment and
demanded money from Ready. Defendant admitted that he stabbed Gardner, and Ready
admitted that he owed defendant $10. The police did not find a gun or any other weapon at the
crime scene. Therefore, even if defense counsel had successfully requested to include a flight
instruction, the result of the proceeding would not have been different.

       Affirmed.

                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Henry William Saad
                                                            /s/ Patrick M. Meter




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