                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 18, 2017
               Plaintiff-Appellee,

v                                                                  No. 331603
                                                                   Wayne Circuit Court
DEXTER SUMTER,                                                     LC No. 15-000188-01-FH

               Defendant-Appellant.


Before: FORT HOOD, P.J., and JANSEN and HOEKSTRA, JJ.

PER CURIAM.

       Defendant appeals as of right his bench trial convictions of attempted assault by
strangulation or suffocation, MCL 750.92; MCL 750.84(1)(b), and domestic violence, MCL
750.81(2). We affirm.

       Defendant argues that the prosecution did not present sufficient evidence to support his
convictions. We disagree.

        Challenges to the sufficiency of the evidence are reviewed de novo. People v McGhee,
268 Mich App 600, 622; 709 NW2d 595 (2005). Evidence should be viewed “in a light most
favorable to the prosecution to determine whether the trial court could have found that the
essential elements of the crime were proved beyond a reasonable doubt.” People v Sherman-
Huffman, 241 Mich App 264, 265; 615 NW2d 776 (2000) (citation omitted), aff’d 466 Mich 39
(2002). “The standard of review is differential: a reviewing court is required to draw all
reasonable inferences and make credibility choices in support of the verdict.” People v Nowack,
462 Mich 392, 400; 614 NW2d 78 (2000). A “prosecutor need not negate every reasonable
theory consistent with innocence.” Id. (citation omitted). An appellate court “is required to draw
all reasonable inferences and make credibility choices in support of the jury verdict.” Id.
“Circumstantial evidence and reasonable inferences arising from that evidence can constitute
satisfactory proof of the elements of a crime.” People v Allen, 201 Mich App 98, 100; 505
NW2d 869 (1993) (citation omitted).

        MCL 750.84(1)(b) provides that any person who is guilty of assaulting another person by
strangulation or suffocation is guilty of a felony. An assault is defined as “an attempt to commit
a battery or an unlawful act that places another in reasonable apprehension of receiving an
immediate battery.” People v Cameron, 291 Mich App 599, 614; 806 NW2d 371 (2011)
(quotation marks, footnote and citation omitted). A battery is “an intentional, uncontested and
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harmful or offensive touching of the person of another, or of something closely connected with
the person.” Id. (quotation marks, footnote and citation omitted). MCL 750.84(2) defines
strangulation or suffocation as “intentionally impeding normal breathing or circulation of the
blood by applying pressure on the throat or neck or by blocking the nose or mouth of another
person.” Pursuant to MCL 750.92, “an ‘attempt’ consists of (1) an attempt to commit an offense
prohibited by law, and (2) any act towards the commission of the intended offense.” People v
Thousand, 465 Mich 149, 164; 631 NW2d 694 (2001).

         Anecea Collins Carpenter, defendant’s girlfriend at the time of these offenses, testified
that during the course of a violent assault that included multiple encounters spanning a one-day
period, defendant choked her and she couldn’t breathe. According to Carpenter, defendant only
stopped choking her when her daughter, Kenecea Carpenter, sixteen-years-old at the time of the
charged offenses, came into the room. This testimony was corroborated by Kenecea, who
testified that she observed defendant choking her mother, and that Kenecea told defendant to
stop, at which point defendant left the home. The trial court specifically noted that it found
Carpenter and Kenecea’s testimony in this regard to be credible, and this Court will not interfere
in the fact-finder’s determinations regarding credibility. See People v Unger, 278 Mich App
210, 222; 749 NW2d 272 (2008). Additionally, photographs taken at the hospital showing
Carpenter’s injuries were admitted into evidence, and they confirm significant bruising and signs
of a vicious beating on Carpenter’s body, including her neck. We are therefore satisfied that the
record evidence amply supported defendant’s conviction of attempted assault by strangulation or
suffocation.

        While defendant appears only to challenge the sufficiency of the evidence with regard to
his conviction of attempted assault by strangulation or suffocation,1 we also address whether
sufficient evidence supported defendant’s conviction of domestic violence. To prove defendant
guilty beyond a reasonable doubt of domestic violence under MCL 750.81(2), the prosecution
has to establish that defendant and Carpenter were involved, or had previously been involved, in
a dating relationship, and that defendant assaulted or assaulted and battered Carpenter.
Cameron, 291 Mich App at 614. An assault is defined as “an attempt to commit a battery or an
unlawful act that places another in reasonable apprehension of receiving an immediate battery.”
Id. (quotation marks, footnote and citation omitted). A battery is “an intentional, uncontested
and harmful or offensive touching of the person of another, or of something closely connected
with the person.” Id. (quotation marks, footnote and citation omitted).

        Carpenter testified that on the date in question, she and defendant were involved in a
dating relationship. Carpenter testified that defendant grabbed her by the arms, pulled her by her
hair, punched her in the ribs, face, and jaw, and choked her repeatedly throughout the day on
November 23, 2014. Officer Lashaundra Ferguson testified that Carpenter had a bruise on the
left side of her face, which Carpenter told her she had received when defendant slapped her with
an open hand. Kenecea also testified that she observed defendant choke her mother on the bed



1
  We note that in his brief on appeal, defendant concedes “there might have been enough
evidence of domestic violence[.]”


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and punch her in the ribs. Thus, sufficient evidence was presented to find defendant guilty
beyond a reasonable doubt of domestic violence.

      Defendant next argues that his convictions2 were against the great weight of the evidence.
We disagree.

       A new trial may be granted if a verdict is against the great weight of the evidence. MCR
2.611(A)(1)(e). In determining whether a trial court’s verdict was against the great weight of the
evidence, “[t]he test is whether the evidence preponderates so heavily against the verdict that it
would be a miscarriage of justice to allow the verdict to stand.” People v McCray, 245 Mich
App 631, 637; 630 NW2d 633 (2001) (citation omitted). “Generally, a verdict may be vacated
only when the evidence does not reasonably support it and it was more likely the result of causes
outside the record, such as passion, prejudice, sympathy, or some other extraneous influence.”
People v Lacalamita, 286 Mich App 467, 469; 780 NW2d 311 (2009) (citation omitted).

        As previously discussed, the prosecution presented the testimony of Carpenter, who
stated that defendant choked her, and that defendant’s hands were around her neck to the point
where she could not breathe. Kenecea also testified that she witnessed defendant choke her
mother. On the basis of this testimony, the trial court reasonably concluded that defendant
attempted to assault Carpenter by suffocating or strangling her. MCL 750.84(1)(b); MCL
750.92. As discussed above, the record evidence also supported the trial court’s finding that
defendant had engaged in domestic violence. Accordingly, we conclude that the record evidence
did not preponderate against defendant’s convictions.

       Finally, defendant argues that he was denied the effective assistance of counsel.3 We
disagree.

        “Whether a defendant has been denied the effective assistance of counsel is a mixed
question of fact and constitutional law.” People v Solloway, 316 Mich App 174, 187; 891 NW2d
255 (2016), citing People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). “Generally, a
trial court’s findings of fact, if any, are reviewed for clear error, and questions of law are
reviewed de novo.” Solloway, 316 Mich App at 188 (citation omitted). Defendant did not move
for a new trial on the basis of ineffective assistance of counsel or a Ginther4 hearing. Where no
factual record was created in regard to defendant’s claim of ineffective assistance of counsel,
“this Court’s review is limited to mistakes apparent on the lower court record.” Id. (citation and
footnote omitted).


2
  While defendant’s arguments on appeal pertain only to his conviction of attempted assault by
strangulation or suffocation, we also address whether his conviction of domestic violence was
against the great weight of the evidence.
3
 Where defendant did not present this issue in his statement of the issues presented, it was not
properly preserved and effectively waived. MCR 7.212(C)(5); People v Fonville, 291 Mich App
363, 383; 804 NW2d 878 (2011). However, we will address this issue briefly on the merits.
4
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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        “Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.” People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012) (citation
omitted). When claiming ineffective assistance of counsel, defendant must establish that “(1)
counsel’s performance was deficient, meaning that it fell below an objective standard of
reasonableness and (2) but for counsel’s error, there is a reasonable probability that the outcome
of the defendant’s trial would have been different.” Solloway, 316 Mich App at 188 (citations
omitted). “[D]efendant has the burden of establishing the factual predicate for his claim of
ineffective assistance of counsel[.]” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). We
also presume that counsel’s actions were the result of sound trial strategy. People v Cooper, 309
Mich App 74, 80; 867 NW2d 452 (2015).

        On appeal, defendant argues that trial counsel was ineffective where he did not move for
a directed verdict. A review of the record confirms that at the close of the prosecution’s case,
defense counsel gave a lengthy closing argument attacking Carpenter’s credibility. Specifically,
defense counsel questioned why Carpenter did not leave the home and seek refuge elsewhere
after defendant first assaulted her in the early morning hours of November 23, 2014. Defense
counsel also portrayed Carpenter as a scorned woman, angry at defendant for his infidelity, who
was taking her revenge by pursuing criminal charges against defendant. Further, defense counsel
pointed to the lack of medical records corroborating Carpenter’s allegations that defendant
strangled her, as well as the fact that Carpenter did not seek medical attention for her injuries
after she was first assaulted during the morning of November 23, 2014. Under the circumstances
of this case, defense counsel may have surmised that attacking Carpenter’s credibility had a
better chance of success than requesting that the trial court enter a directed verdict. Accordingly,
from a review of the record as a whole, it appears that defense counsel, rather than moving for a
directed verdict, decided to pursue the strategy of strenuously attacking the strength of the
prosecution’s case on the basis of Carpenter’s credibility, how she and Kenecea recalled the
pertinent events, and Carpenter’s motives for testifying the way she did. Such action does not
amount to deficient performance on the part of defense counsel. Id. Moreover, where the record
evidence amply supported defendant’s convictions, defense counsel was not ineffective for not
moving for a directed verdict where any effort to do so would have been futile. See People v
Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010), where this Court, citing People v
Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000), recognized that “[f]ailing to advance a
meritless argument or raise a futile objection does not constitute ineffective assistance of
counsel.” Therefore, defendant’s claim of ineffective assistance of counsel is without merit.

       Affirmed.



                                                             /s/ Karen M. Fort Hood
                                                             /s/ Kathleen Jansen
                                                             /s/ Joel P. Hoekstra




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