                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     February 23, 2016
               Plaintiff-Appellee,

v                                                                    No. 324117
                                                                     Branch Circuit Court
TREVOR WILLIAM-EUGENE HEWITT,                                        LC No. 13-111049-FH

               Defendant-Appellant.


Before: HOEKSTRA, P.J., and METER and M. J. KELLY, JJ.

PER CURIAM.

       Defendant, Trevor William-Eugene Hewitt, appeals by right his jury convictions of two
counts of being a prisoner in possession of a weapon. See MCL 801.262(2). The trial court
sentenced Hewitt as a third-offense habitual offender, MCL 769.11, to concurrent prison terms of
43 to 120 months on each conviction. Because Hewitt has not established any errors at trial that
warrant relief, we affirm.

       The jury found Hewitt guilty of possessing two weapons in jail cell B68 at the Branch
County jail: a portion of a T-shirt that had been knotted and fashioned into a “strangulation
device” and a towel containing four batteries, which is referred to as a “sap.” At trial, Hewitt
argued that the knotted T-shirt was left in the cell by a previous inmate, Cody Savage, and that
the towel containing batteries was not a weapon.

                                I. INEFFECTIVE ASSISTANCE

        Hewitt first argues that his trial lawyer’s failure to call Savage as a witness amounted to
ineffective assistance. Because the trial court did not hold an evidentiary hearing to determine
the facts underlying this claim of error, our review is limited to mistakes that are apparent on the
record alone. People v Gioglio (On Remand), 296 Mich App 12, 20; 815 NW2d 589 (2012),
remanded for resentencing 493 Mich 864. In order to establish error warranting relief, Hewitt
must show that his lawyer’s decision fell below an objective standard of reasonableness under
prevailing professional norms and that there is a reasonable probability that, but for the
unprofessional error, the outcome of his trial would have been different. Id. at 22.




                                                -1-
        In this case, there is evidence that Savage previously occupied the cell at issue. A
corrections officer, Wesley Pope, also testified at the preliminary examination that, as he
questioned Hewitt about the knotted T-shirt at the jail, Savage “volunteered” that the knotted T-
shirt was his and that he had left it in B68. At trial, Hewitt’s lawyer attempted to question Pope
about Savage’s statement, but the trial court sustained the prosecution’s hearsay objection.
Hewitt now maintains that his lawyer should have called Savage directly to testify about the T-
shirt.

       “[D]ecisions regarding what evidence to present and which witnesses to call are
presumed to be matters of trial strategy, and we will not second-guess strategic decisions with
the benefit of hindsight.” People v Dunigan, 299 Mich App 579, 589-590; 831 NW2d 243
(2013). Indeed, if we can conceive of a legitimate strategic reason for Hewitt’s lawyer’s
decision under the known facts, we must conclude that the decision was within the range of
reasonable professional conduct. Gioglio, 296 Mich App at 22-23.

         Hewitt has the burden to establish the factual predicate for his claim of error on appeal,
but he has not presented any evidence that Savage would have testified favorably to him, if
called. People v Carbin, 463 Mich 590, 601; 623 NW2d 884 (2001). Moreover, even if
Hewitt’s lawyer could have questioned Pope about Savage’s statement after calling Savage to
testify, see, e.g., MRE 804(b)(3), it is not reasonably probable that the admission of the hearsay
statement would have altered the outcome of the trial. Gioglio, 296 Mich App at 22. “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).

         There was testimony at trial that Savage was a volatile inmate who had previously
“destroyed” the cell. And the totality of the circumstances surrounding Savage’s claim of
ownership suggest that he blurted out his statement in order to interfere with Pope’s
investigation. Further, Rhonda Nadle and Richard Fillmore, two jail corrections officers, both
testified that B68 was completely searched and cleaned after Savage was removed from the cell.
Pope opined that it was nearly impossible that a maintenance worker or other inmate concealed
the knotted T-shirt under the stool in B68, and Nadle and Fillmore both stated that they inspected
the underside of the stool after Savage was removed from the cell and found nothing. In light of
these facts, even had the jury heard Savage’s claim of ownership, it is not reasonably likely that
the jury would have reached a different result on the charge related to the T-shirt. Id.

                            II. SUFFICIENCY OF THE EVIDENCE

       Hewitt next argues that his convictions were not supported by sufficient evidence. This
Court reviews a challenge to the sufficiency of the evidence by reviewing the “record evidence
de novo in the light most favorable to the prosecution” and determining “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).




                                                -2-
       A prisoner is generally prohibited from possessing or having “under his or her control
any weapon or other item that may be used to injure a prisoner or other person, or used to assist a
prisoner in escaping from jail.” MCL 801.262(2); People v Gratsch, 299 Mich App 604, 616;
831 NW2d 462 (2013), vacated not in relevant part 495 Mich 876.1

        Hewitt conceded that the towel and batteries were his and Pope testified that, in his
opinion, the towel containing batteries, as he found it, could be grabbed and swung as a weapon.
The jury was free to conclude from this testimony that Hewitt possessed the towel with the
batteries and that it was configured for use as a weapon or constituted an item that may be used
to injure a prisoner or other person. See Roper, 286 Mich App at 88.

        The prosecution also presented evidence from which the jury could rationally infer that
Hewitt purposely possessed or controlled the knotted T-shirt. Gratsch, 299 Mich App at 616.
Nadle and Fillmore testified that cell B68 was completely searched and cleaned before Hewitt
was moved there. Both officers testified that they checked under the cell’s metal stools and
found nothing. Nadle stated that all maintenance personnel had been fully monitored while
repairing the cell, and Pope opined that it was nearly impossible that anyone other than Hewitt
placed the knotted T-shirt in the cell.

        The prosecution also presented evidence sufficient to allow the jury to reasonably
conclude that the knotted T-shirt was a “weapon or other item that may be used to injure”
another person. MCL 801.262(2). Pope described the item as “what appeared to be a section of
tee-shirt that had been torn into some sort of a rope with knots on the end”; he further termed the
item a “strangulation device.” The knotted T-shirt itself was introduced into evidence and
Hewitt does not allege that Pope’s description of the item was inaccurate. And we must defer to
the jury’s apparent decision to credit Pope’s testimony and similarly conclude that the item was a
“strangulation device” capable of injuring a person. Roper, 286 Mich App at 89 (stating that this
Court will not second-guess the jury’s determinations). Viewing the evidence in the light most
favorable to the prosecution, id. at 83, there was sufficient evidence to allow the jury to
rationally conclude that the knotted T-shirt was a “weapon” within the meaning of MCL
801.262(2).

                                III. INSTRUCTIONAL ERRORS

        Hewitt next argues that the trial court erred in instructing the jury. Specifically, he
asserts that the trial court failed to instruct the jury on the essential “authorization” element and
that the court impermissibly characterized the items at issue as a “sap” and “strangulation
device,” or “weapon.” We review these unpreserved claims for plain error. People v Aldrich,
246 Mich App 101, 124-125; 631 NW2d 67 (2001).



1
  We reject Hewitt’s argument that the prosecution was required to prove that he was not
“authorized” to possess a weapon because Hewitt presented no evidence that he was authorized
to possess the items as configured. See People v Perry, 145 Mich App 778, 785; 377 NW2d 911
(1985).


                                                -3-
        Contrary to Hewitt’s assertion, “authorization” is not an element of the crimes as charged
and he presented no evidence tending to suggest that he was authorized to possess the items in a
configuration that permitted the items to be used as a weapon. See People v Perry, 145 Mich
App 778, 785; 377 NW2d 911 (1985). Therefore, the trial court cannot be faulted for failing to
give an “authorization” instruction. The trial court also did not commit any errors amounting to
plain error warranting relief when it in passing characterized the two items as a “sap,”
“strangulation device,” or “weapon.” In reviewing the instructions as a whole, this phrasing was
limited and the trial court instructed the jury that it was required to find that both items were
“weapons” within the meaning of MCL 801.262(2). It also instructed the jury that its comments
were not evidence. Accordingly, if the comments were erroneous, any prejudice was minimal
and does not warrant relief. Aldrich, 246 Mich App at 124-125. Likewise, Hewitt’s lawyer was
not ineffective for failing to object to these alleged errors because in one case there was no error
and, in the other case, any error would not warrant relief. Gratsch, 299 Mich App at 617;
Gioglio, 296 Mich App at 22.

                                IV. PROSECUTORIAL ERROR

       Hewitt additionally argues that the prosecutor improperly prejudiced his trial when he
picked up the towel containing batteries and struck a table, thereby demonstrating its ability to be
wielded as a weapon. This Court reviews claims of prosecutorial error to determine whether the
prosecutor’s acts or omissions denied the defendant a fair trial. Dunigan, 299 Mich App at 588.

        “In general, prosecutors are afforded great latitude regarding their arguments and conduct
during closing argument.” People v Bosca, 310 Mich App 1, 34-35; 871 NW2d 307 (2015)
(quotation marks and citation omitted; emphasis added). “Generally, remarks induced by and
made in response to statements made by defense counsel are not subject to reversal.” People v
Foster, 77 Mich App 604, 614; 259 NW2d 153 (1977). “A prosecutor’s comments are to be
evaluated in light of defense arguments and the relationship the comments bear to the evidence
admitted at trial. Otherwise improper prosecutorial conduct or remarks might not require
reversal if they address issues raised by defense counsel.” People v Dobek, 274 Mich App 58,
64; 732 NW2d 546 (2007) (citation omitted; emphasis added).

        The prosecutor here demonstrated the possible use of the towel and batteries as a weapon
in direct response to an argument raised by Hewitt’s trial lawyer. In closing, Hewitt’s trial
lawyer argued that the towel containing batteries could not be used as a weapon, particularly
because Pope testified that, when he picked it up, it “fell apart.” The prosecutor countered this
contention by demonstrating that the towel containing batteries could in fact be used as a
weapon. While the conduct of the prosecutor was allegedly charged with emotion (which is
unclear from the transcript), prosecutors are not required to “phrase arguments in the blandest of
all possible terms.” People v Ullah, 216 Mich App 669, 678; 550 NW2d 568 (1996). Therefore,
there was no prosecutorial error. Moreover, even if we were to conclude that it was error for the
prosecutor to demonstrate the use of the towel and batteries in this way, we cannot conclude that
the error “so infected the trial with unfairness as to make the resulting conviction a denial of due
process of law.” People v Blackmon, 280 Mich App 253, 262; 761 NW2d 172 (2008).
Accordingly, there was no prosecutorial error warranting relief.



                                                -4-
                                 V. SUBSTITUTE COUNSEL

       Hewitt also argues on his own behalf that the trial court erred when it denied his motion
for substitute appointed counsel. “A trial court’s decision regarding substitution of counsel will
not be disturbed absent an abuse of discretion.” People v Traylor, 245 Mich App 460, 462; 628
NW2d 120 (2001). An indigent defendant is not entitled to substitute counsel unless he can
demonstrate “good cause” for substitution. Id.

         Having reviewed Hewitt’s arguments and the record, we can discern no good cause,
which would have required the trial court to provide substitute counsel. There is no indication
that Hewitt’s lawyer failed to communicate any plea offers or proceeded against Hewitt’s wishes.
There is no evidence in the record that Hewitt’s lawyer made disparaging comments about him.
Finally, Hewitt was not entitled to relief under the 180-day rule, MCR 6.004(C), at the time the
trial court denied his request for substitute counsel, and Hewitt did not renew his motion for
substitute counsel at any point after he had been incarcerated for 180 days or more. Accordingly,
the trial court did not abuse its discretion in denying his request for substitute counsel.

       There were no errors warranting a new trial.

       Affirmed.

                                                            /s/ Joel P. Hoekstra
                                                            /s/ Patrick M. Meter
                                                            /s/ Michael J. Kelly




                                               -5-
