                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 16, 2014
               Plaintiff-Appellee,

v                                                                    No. 317805
                                                                     Wayne Circuit Court
DANIEL THOMAS WANSHON, also known as                                 LC No. 13-002114-FC
DANIEL WASHINGTON,

               Defendant-Appellant.


Before: RIORDAN, P.J., and BECKERING and BOONSTRA, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of armed robbery, MCL 750.529,
first-degree home invasion, MCL 750.110a, possession of a firearm during the commission of a
felony (felony-firearm), MCL 750.227b, felonious assault, MCL 750.82, and larceny in a
building, MCL 750.360. Defendant was sentenced to 51 months to 10 years for armed robbery,
45 months to 20 years for first-degree home invasion, two years for felony-firearm, 175 days for
felonious assault, and 175 days for larceny in a building. These convictions stem from defendant
breaking and entering into his neighbor’s house while armed with a gun. We affirm.

                                        I. SUFFICIENCY

                                  A. STANDARD OF REVIEW

        Defendant first contends that his convictions were not supported with sufficient evidence.
We review de novo a challenge to the sufficiency of the evidence. People v Ericksen, 288 Mich
App 192, 195; 793 NW2d 120 (2010). “In determining whether the prosecutor has presented
sufficient evidence to sustain a conviction, an appellate court is required to take the evidence in
the light most favorable to the prosecutor” to ascertain “whether a rational trier of fact could find
the defendant guilty beyond a reasonable doubt.” People v Tennyson, 487 Mich 730, 735; 790
NW2d 354 (2010) (quotation marks and citations omitted). We resolve evidence conflicts 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).

                                          B. ANALYSIS


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        Defendant does not identify the elements of his convictions nor raise any specific
arguments relating to the elements of his crimes. Instead, he merely identifies perceived
weakness in the prosecution’s case and alleges conflicts in the evidence. However, as noted
above, we resolve all conflicts of the evidence in favor of the prosecution and draw all credibility
inferences in favor of the jury’s verdict. Tennyson, 487 Mich at 735. Furthermore, there was
sufficient evidence to support defendant’s conviction.

          The elements of armed robbery are:

                  [U]sing force or violence against any person who is present at a larceny or
          assaulting or putting the person in fear, in the course of committing a larceny. To
          commit an armed robbery, the defendant must also either (1) possess a dangerous
          weapon or an article used or fashioned in a manner to lead any person present to
          reasonably believe the article is a dangerous weapon, or (2) represent orally or
          otherwise that he or she is in possession of a dangerous weapon. [People v
          Hardy, 494 Mich 430, 446; 835 NW2d 340 (2013) (quotation marks and brackets
          omitted).]

A conviction of armed robbery may be based on an attempt to commit a larceny rather than the
completion of such an act. People v Williams, 491 Mich 164, 172-175; 814 NW2d 270 (2012).
Here, the victim testified that defendant entered his home without permission, attempted to carry
away a television, and pointed a shotgun at the victim. The victim’s cellular phone and the
victim’s girlfriend’s purse also were taken. When defendant was arrested, the police officers
recovered the victim’s stolen cellular phone in the home. Thus, the evidence shows that during
the course of stealing these things, defendant possessed a dangerous weapon, the shotgun, and
pointed it at the victim. MCL 750.529. Accordingly, the evidence was sufficient to support an
armed robbery conviction.

        The elements of first-degree home invasion are: (1) defendant either broke and entered a
dwelling or entered a dwelling without permission; (2) defendant either intended when entering
to commit a felony, larceny, or assault in the dwelling or at any time while entering, present in,
or exiting the dwelling committed a felony, larceny, or assault; and (3) while defendant was
entering, present in, or exiting the dwelling, he was either armed with a dangerous weapon or
another person was lawfully present in the dwelling. People v Wilder, 485 Mich 35, 43; 780
NW2d 265 (2010).

        The victim and his girlfriend testified that defendant did not have permission to be in
their home. Defendant pointed a gun at the victim while inside the home. Further, defendant’s
intent to commit a larceny can be inferred from his attempt to carry away the complainants’
television and the fact that he was in possession of victim’s cellular phone.1 See People v
Lawton, 196 Mich App 341, 349; 492 NW2d 810 (1992) (“Intent, like any other fact, may be
proven indirectly by inference from the conduct of the accused and surrounding circumstances



1
    The victim’s girlfriend’s purse was not found.


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from which it logically and reasonably follows.” (Quotation marks and citation omitted.))
Defendant’s first-degree home invasion conviction was supported with sufficient evidence.

        As for felony-firearm, “one must carry or possess the firearm, and must do so when
committing or attempting to commit a felony.” People v Burgenmeyer, 461 Mich 431, 438; 606
NW2d 645 (2000) (emphasis omitted). The victim testified that defendant possessed, and
threatened him with, a firearm while committing the felonies of first-degree home invasion and
armed robbery. The police recovered a bullet casing in the victim’s backyard. There was
sufficient evidence to support defendant’s felony-firearm conviction.

        “The elements of felonious assault are (1) an assault, (2) with a dangerous weapon, and
(3) with the intent to injure or place the victim in reasonable apprehension of an immediate
battery.” People v Chambers, 277 Mich App 1, 8; 742 NW2d 610 (2007) (quotation marks and
citation omitted). The victim testified that defendant pointed a shotgun at him and the victim
feared defendant would shoot him. Further, defendant’s intent to place the victim in
apprehension of a battery can be inferred from this conduct. See, e.g., People v Avant, 235 Mich
App 499, 505-506; 597 NW2d 864 (1999); see also Lawton, 196 Mich App at 349. In light of
the foregoing, we find sufficient evidence to support defendant’s felonious assault conviction.

       Lastly, larceny in a building, MCL 750.360, states: “Any person who shall commit the
crime of larceny by stealing in any dwelling house . . . shall be guilty of a felony.” Again, the
victim saw defendant inside his living room attempting to carry away his television. Defendant
did not have permission to take the victim’s cellular phone. There was sufficient evidence to
support defendant’s conviction for larceny in a building.

                              II. IDENTIFICATION EVIDENCE

                                 A. STANDARD OF REVIEW

        “The trial court’s decision to admit identification evidence will not be reversed unless it
is clearly erroneous.” People v Harris, 261 Mich App 44, 51; 680 NW2d 17 (2004). “Clear
error exists if the reviewing court is left with a definite and firm conviction that a mistake has
been made.” Id.

                                         B. ANALYSIS

        “A photographic identification procedure violates a defendant’s right to due process of
law when it is so impermissibly suggestive that it gives rise to a substantial likelihood of
misidentification.” People v Gray, 457 Mich 107, 111; 577 NW2d 92 (1998). However,
“[s]imply because an identification procedure is suggestive does not mean it is necessarily
constitutionally defective.” People v Colon, 233 Mich App 295, 304; 591 NW2d 692 (1998).
Even if the identification is unduly suggestive, suppression of the witness’s identification
testimony is not required where there is an untainted, independent basis for the identification.
Gray, 457 Mich at 115. The factors considered in determining whether there is an independent
basis for the admission of an in-court identification include:

              (1) prior relationship with or knowledge of the defendant; (2) opportunity
       to observe the offense, including length of time, lighting, and proximity to the

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       criminal act; (3) length of time between the offense and the disputed
       identification; (4) accuracy of description compared to the defendant's actual
       appearance; (5) previous proper identification or failure to identify the defendant;
       (6) any prelineup identification lineup of another person as the perpetrator; (7) the
       nature of the offense and the victim's age, intelligence, and psychological state;
       and (8) any idiosyncratic or special features of the defendant. [People v Davis,
       241 Mich App 697, 702-03; 617 NW2d 381 (2000).]

       On appeal, defendant argues that the identification was unfairly suggestive and not
supported with an independent basis. However, the witness had a prior relationship with the
defendant and “the photograph was used only to help confirm the identity of the person the
witness had already identified[.]” People v Woolfolk, 304 Mich App 450, 457-458; 848 NW2d
169 (2014) (“[t]he witness testified that he knew, and grew up with, the shooter. Under these
circumstances, the use of a single photograph did not create a substantial likelihood of
misidentification and, therefore, did not violate defendant’s right to due process.”).

        The victim knew defendant as his neighbor of the past four to five months before the
robbery. The victim and defendant had spoken multiple times previously. The victim also told
the responding officers that the robber was his neighbor and reiterated this belief when making
the identification. When viewing defendant’s license photograph, the victim identified defendant
as his neighbor and as the robber, with no inappropriate suggestion from the officer. The victim
also had a good opportunity to view defendant during the home invasion. We find that under
these circumstances, the use of a single photograph was not unduly suggestive.

                              III. PHOTOGRAPHIC EVIDENCE

                                 A. STANDARD OF REVIEW

        Defendant next argues that the trial court abused its discretion in admitting into evidence
a photograph of him and a black male, with defendant holding a gun. We review evidentiary
issues for an abuse of discretion. People v Benton, 294 Mich App 191, 199; 817 NW2d 599
(2011). “A trial court abuses its discretion when it chooses an outcome that is outside the range
of reasonable and principled outcomes.” People v Orr, 275 Mich App 587, 588-589; 739 NW2d
385 (2007).

                                         B. ANALYSIS

        On appeal, defendant contends that the photograph was irrelevant. However, in the lower
court, defense counsel stated that the evidence was “certainly relevant.” “A defendant should not
be allowed to assign error to something that his own counsel deemed proper.” People v
Breeding, 284 Mich App 471, 486; 772 NW2d 810 (2009). Moreover, the relevancy “threshold
is minimal: any tendency is sufficient probative force.” People v Feezel, 486 Mich 184, 197;
783 NW2d 67 (2010) (quotation marks and citation omitted). The photograph tended to prove
that defendant lived in the home the police searched, in which the victim’s cellular telephone was
found, and that defendant had access to weapons.

      Nor was the relevance substantially outweighed by the danger of unfair prejudice. MRE
403. The trial court properly exercised its discretion in admitting the photograph. “Rule 403
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determinations are best left to a contemporaneous assessment of the presentation, credibility, and
effect of testimony[.]” People v VanderVliet, 444 Mich 52, 81; 508 NW2d 114 (1993) amended
445 Mich 1205 (1994). Here, the evidence was relevant to show defendant’s residence, his
access to guns, and to corroborate the victim’s testimony. Furthermore, “[a]ll relevant evidence
is prejudicial; it is only unfairly prejudicial evidence that should be excluded. Unfair prejudice
exists when there is a tendency that evidence with little probative value will be given too much
weight by the jury.” People v McGhee, 268 Mich App 600, 613-614; 709 NW2d 595 (2005)
(citation omitted). The trial court properly exercised its discretion in determining that any
prejudicial effect was not substantially outweighed by its probative value. The trial court also
gave the jury a cautionary instruction to prevent it from considering the evidence for an
improper, unfairly prejudicial purpose. Accordingly, defendant cannot establish error requiring
reversal.

                            IV. PROSECUTORIAL MISCONDUCT

                                  A. STANDARD OF REVIEW

       Defendant next contends that the prosecution committed misconduct during cross-
examination. Because defendant did not object based on prosecutorial misconduct grounds, our
review is for plain error affecting substantial rights. People v Brown, 279 Mich App 116, 134;
755 NW2d 664 (2008).

                                          B. ANALYSIS

        During cross-examination, the prosecutor highlighted the contradiction between
defendant’s testimony and the notice of alibi he filed prior to trial. The key distinction is that in
his alibi notice, defendant claimed that he and his girlfriend were together in bed at the time of
the crime. However, at trial, defendant admitted that his girlfriend was not present and that he
was lying down alone. “[A]s a party-opponent admission, the notice of alibi may be used to
impeach defendant's credibility at trial when his testimony is inconsistent with the contents of the
alibi notice.” People v McCray, 245 Mich App 631, 636-37; 630 NW2d 633 (2001).
Defendant’s Fifth Amendment right was not infringed upon because the prosecution impeached
defendant only after he testified contrary to the alibi notice. Id. The prosecutor’s use of the
notice of alibi to impeach defendant was not improper and did not impair his right to a fair trial.

                       V. INEFFECTIVE ASSISTANCE OF COUNSEL

                                  A. STANDARD OF REVIEW

        Lastly, defendant asserts a claim of ineffective assistance of counsel. Because defendant
failed to preserve this issue by moving for a new trial or evidentiary hearing, our review is
limited to errors apparent on the record. People v Sabin (On Second Remand), 242 Mich App
656, 659; 620 NW2d 19 (2000).

                                          B. ANALYSIS

       “Effective assistance of counsel is presumed, and the defendant bears a heavy burden to
prove otherwise.” People v Mack, 265 Mich App 122, 129; 695 NW2d 342 (2005). To establish

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a claim for ineffective assistance of counsel, a defendant first must establish that “counsel’s
representation fell below an objective standard of reasonableness.” People v Vaughn, 491 Mich
642, 669; 821 NW2d 288 (2012) (quotation marks and citation omitted); see also Strickland v
Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Second, the defendant
must show that trial counsel’s deficient performance prejudiced his defense, meaning “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Vaughn, 491 Mich at 669 (quotation marks and citation omitted);
see also Strickland, 466 US at 687.

        On appeal, defendant does not clearly identify the basis for his ineffective assistance of
counsel claim, nor adequately support it. See People v Payne, 285 Mich App 181, 195; 774
NW2d 714 (2009). To the extent that it is mentioned at all, defendant appears to suggest that his
defense attorney should have known that defendant and his girlfriend would testify contrary to
the alibi notice. But, defendant admitted that he informed defense counsel that he was with his
girlfriend at the time of the robbery. Furthermore, defendant cannot show that, but for the
claimed error, the outcome at trial would have been different. Vaughn, 491 Mich at 669.
Defendant’s convictions were supported by sufficient evidence, as discussed supra. Defendant
has not demonstrated that but for the relatively limited impeachment, the outcome of the trial
would have been different.

                                      VI. CONCLUSION

        There was sufficient evidence to support defendant’s convictions. Furthermore, the
identification evidence as well as the photographic evidence was properly admitted. Nor were
there any instances of prosecutorial misconduct or ineffective assistance of counsel. We affirm.

                                                            /s/ Michael J. Riordan
                                                            /s/ Jane M. Beckering
                                                            /s/ Mark T. Boonstra




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