            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     February 19, 2019
               Plaintiff-Appellee,

v                                                                    No. 340031
                                                                     Wayne Circuit Court
TODD GREGORY HODGES,                                                 LC No. 17-001788-01-FC

               Defendant-Appellant.


Before: GLEICHER, P.J., and K. F. KELLY and LETICA, JJ.

PER CURIAM.

        Following a bench trial, the circuit court convicted defendant of armed robbery and
possession of a firearm during the commission of a felony (felony-firearm). Defendant contends
that his trial counsel was ineffective, that the police withheld exculpatory evidence, and that the
court erroneously scored two offense variables when calculating his sentence. We discern no
error and affirm.

                                        I. BACKGROUND

        Defendant answered a Facebook advertisement posted by Tayjona Smith, who was
selling an iPhone 7 for $375. Smith drove to meet defendant near defendant’s house to finalize
the purchase. Defendant took the cell phone and exited the vehicle without paying. He then
pulled out a gun and instructed Smith, “[G]et off my block before I shoot this bitch up.” At trial,
defendant admitted to stealing the phone, but adamantly denied using a gun.

                                II. ASSISTANCE OF COUNSEL

        Defendant contends that his trial counsel was ineffective for failing to request the court to
consider the lesser offense of larceny by conversion. Defendant further asserts that his counsel
should have sought the exclusion of any statements made by defendant during his police
interrogation as the prosecution did not present the recorded police interview into evidence.
        Defendant moved in this Court for a Ginther1 hearing, but this Court denied that motion.
People v Hodges, unpublished order of the Court of Appeals, entered October 25, 2018 (Docket
No. 340031). Because we agree that a Ginther hearing is unnecessary, we limit our review to
mistakes apparent on the existing record. People v Horn, 279 Mich App 31, 38; 755 NW2d 212
(2008).

         “Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
“ ‘[I]t has long been recognized that the right to counsel is the right to the effective assistance of
counsel.’ ” United States v Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984),
quoting McMann v Richardson, 397 US 759, 777 n 14; 90 S Ct 1441; 25 L Ed 2d 763 (1970). In
Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984), the United
States Supreme Court held that a convicted defendant’s claim of ineffective assistance of counsel
includes two components: “First, the defendant must show that counsel’s performance was
deficient. . . . Second, the defendant must show that the deficient performance prejudiced the
defense.” To establish the first component, a defendant must show that counsel’s performance
fell below an objective standard of reasonableness under prevailing professional norms. People
v Solomonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). To establish prejudice, the
defendant must demonstrate a reasonable probability that but for counsel’s errors the result of the
proceedings would have differed. Id. at 663-664. The defendant must overcome the strong
presumptions that his “counsel’s conduct falls within the wide range of professional assistance,”
and that his counsel’s actions represented “sound trial strategy.” Strickland, 466 US at 689.

        We cannot conclude on this record that defense counsel was ineffective for failing to
request that the court consider a lesser offense; counsel’s decision was obviously strategic. The
prosecutor charged defendant with armed robbery and felony-firearm and no lesser included
robbery charges. In order to convict, the prosecutor had to convince the trial court that defendant
used a gun in the course of the robbery based solely on the word of the victim. Defense counsel
likely employed an “all or nothing” strategy, which made sense under the circumstances. If the
court did not believe the victim’s version of events, specifically that defendant had produced a
gun, it would have to acquit defendant of the charged offenses. This backfired as the court found
Smith credible. However, a strategy’s failure does not mean that the strategist was
constitutionally ineffective. People v Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d
715 (1996).

        Defense counsel also was not ineffective for failing to seek exclusion of defendant’s
statements during his police interrogation. Defendant contends that he requested an attorney, but
that the police continued the inquiry without counsel, violating his Fifth Amendment rights.
Defendant’s claim fails for two reasons: defendant failed to establish that the police actually
violated his rights and even if the police did, defendant’s statements were admissible for
impeachment purposes.




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


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        “A statement obtained from a defendant during a custodial interrogation is admissible
only if the defendant voluntarily, knowingly, and intelligently waived his Fifth Amendment
rights.” People v Akins, 259 Mich App 545, 564; 675 NW2d 863 (2003), citing Miranda v
Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966). If a statement is obtained in
violation of a defendant’s right to counsel, the prosecution may not use that statement in its case-
in-chief. People v Frazier, 270 Mich App 172, 179; 715 NW2d 341 (2006), rev’d in part on
other grounds 478 Mich 231 (2007). However, those statements may be used for impeachment
purposes on cross-examination as long as the defendant made the statements voluntarily. Id. at
181.

         Defendant has not supported his claim that he requested counsel during his custodial
interrogation or that the police continued the questioning after he made such a request.
However, even if defendant had requested counsel, the prosecution would be able to use his
statements to impeach his testimony. The prosecutor did not elicit testimony about defendant’s
custodial statements during the state’s case-in-chief; rather, the chief investigating officer
testified only that he spoke to defendant and “collect[ed] [his] personal information,” including
his phone number. Only during cross-examination of defendant did the prosecutor recite
statements allegedly made by defendant during his interrogation. As the prosecutor was free to
use these statements for impeachment purposes, defense counsel had no ground to object.
Counsel is not ineffective for failing to raise meritless objections or motions. People v Unger,
278 Mich App 210, 255; 749 NW2d 272 (2008).

                                    III. BRADY VIOLATION

        At trial, the prosecution presented into evidence screenshots from the text message
conversation defendant had with Smith. Smith testified regarding other messages that were not
included in the presented screenshots. Defendant contends that these additional text messages
could have been exculpatory and that the police and the prosecutor violated Brady v Maryland,
373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), by failing to disclose them during discovery.
Defendant failed to preserve his challenge by raising it in the trial court, limiting our review to
plain error affecting defendant’s substantial rights. People v Cox, 268 Mich App 440, 448; 709
NW2d 152 (2005).

        In Brady, the United States Supreme Court held that “the suppression by the prosecution
of evidence favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” Brady, 373 US at 87. To establish that a Brady violation occurred, the defendant
must show that “(1) the prosecution has suppressed evidence; (2) that is favorable to the accused;
and (3) that is material.” People v Chenault, 495 Mich 142, 150; 845 NW2d 731 (2014).

       The prosecution in this case could not have suppressed the subject evidence because the
evidence was also in defendant’s control. The evidence was text messages between defendant
and Smith. Smith provided to the police screenshots of the text messages from the phones she
used. She sent these messages directly to defendant’s phone. Defendant therefore should have
had a copy of each message in the possession of the police and the prosecution. Yet, defendant
never presented those messages, either as an offer of proof or to impeach Smith’s testimony.


                                                -3-
        Moreover, defendant did not establish that the “suppressed” screenshots were
exculpatory. Rather, the text messages that were presented revealed that defendant and Smith
arranged a meeting for the purchase of a cell phone. In a final exchange presented at trial, Smith
advised defendant that she had contacted the police and defendant claimed, “I ain[’]t do shit” and
“Why they coming to me.” Smith testified that other messages showed that defendant thought
his conduct was “funny,” that he would not return the phone to Smith, and that defendant
threatened to “shoot that bitch up” if Smith returned to his neighborhood. If these messages
were actually sent, they were not exculpatory. And if the messages read as described by Smith,
they would not have changed the outcome of defendant’s trial; they would have been another
nail in his convictions. Further, Smith’s testimony standing alone was not as strong as her earlier
corroborated testimony about the text messages

       Overall, defendant has not established that the prosecution suppressed any evidence, let
alone exculpatory evidence, or that he was prejudiced by the prosecution’s actions. He is
therefore not entitled to relief.

                                  IV. OFFENSE VARIABLES

        Defendant also challenges the trial court’s assessment of 15 points for offense variable
(OV) 1 and 10 points for OV 13 when calculating his sentence. “Under the sentencing
guidelines, the circuit court’s factual determinations are reviewed for clear error and must be
supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d
340 (2013). “Whether the facts, as found, are adequate to satisfy the scoring conditions
prescribed by statute, i.e., the application of the facts to the law, is a question of statutory
interpretation, which an appellate court reviews de novo.” Id.

        OV 1 is scored for the aggravated use of a weapon. MCL 777.31(1). The assessment of
15 points is warranted if “[a] firearm was pointed at or toward a victim . . . .” MCL 777.31(1)(c).
The record evidence supports this score. Smith testified that defendant exited her car with a gun
in his hand and threatened to shoot her. She pantomimed defendant’s motions and the prosecutor
described on the record that Smith demonstrated that defendant was “holding a gun toward [the]
seat area.” The court could reasonably infer from the testimony and demonstration that
defendant pointed a gun at Smith and therefore did not err in scoring this variable.

        An assessment of 10 points is required for OV 13 when the sentencing “offense was part
of a pattern of felonious criminal activity involving a combination of 3 or more crimes against a
person or property.” MCL 777.43(1)(d). “For determining the appropriate points under this
variable, all crimes within a 5-year period, including the sentencing offense, shall be counted
regardless of whether the offense resulted in a conviction.” MCL 777.43(2)(a). “[T]he plain
language of the statute does not require a criminal conviction to score 10 points, but only
requires ‘criminal activity.’ ” People v Harverson, 291 Mich App 171, 180; 804 NW2d 757
(2010). Criminal activity includes offenses committed as a juvenile that resulted in a juvenile
adjudication, as well as offenses that did not result in a conviction. Id.

        Within the five years preceding the crimes underlying this case, defendant committed two
others. On August 26, 2012, defendant committed second-degree home invasion as a juvenile, a
crime against a person. MCL 777.16f. On February 14, 2015, defendant was charged with

                                                -4-
receiving and concealing stolen property, a crime against property. MCL 777.16z. Defendant
then committed the offense in this case, armed robbery, which is a crime against a person. MCL
777.16y. These offenses were sufficient to establish a pattern of criminal behavior and support
defendant’s OV 13 score.

       We affirm.



                                                          /s/ Elizabeth L. Gleicher
                                                          /s/ Kirsten Frank Kelly
                                                          /s/ Anica Letica




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