                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    September 1, 2016
               Plaintiff-Appellee,

v                                                                   No. 327039
                                                                    Genesee Circuit Court
ERVIN JOVAN MARKS, JR.,                                             LC No. 13-034107-FC

               Defendant-Appellant.


Before: K. F. KELLY, P.J., and M. J. KELLY and RONAYNE KRAUSE, JJ.

PER CURIAM.

       At defendant’s second trial, a jury convicted defendant of second-degree murder, MCL
750.317, assault with intent to commit murder, MCL 750.83, felon in possession of a firearm,
MCL 750.224f, and possession of a firearm during the commission of a felony, MCL 750.227b.1
The trial court sentenced defendant as a third-offense habitual offender, MCL 769.11, to
concurrent prison terms of 30 to 60 years each for the murder and assault convictions, and 1 to
10 years for the felon-in-possession conviction, to be served consecutive to a two-year term of
imprisonment for the felony-firearm conviction. Defendant appeals as of right. We affirm in
part and remand for possible resentencing.

        A jury convicted defendant of fatally shooting Deonta Blackmon in the head and
shooting Albert Calhoun in the arm and leg outside Mona’s Cocktail Lounge in Flint at
approximately 2:00 a.m. on October 21, 2013. The prosecution presented evidence that
Blackmon was robbed by two men in the lounge parking lot. After the robbery, Blackmon
entered the lounge, reported that he had been robbed and, minutes later, went outside with
Calhoun and additional men. As the group walked toward the parking lot, Blackmon announced
that he saw the robbers, and, in turn, either one or both of the identified men began shooting,
killing Blackmon and injuring Calhoun. Michigan State Police troopers arrived during the


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  At an earlier trial, another jury acquitted defendant of charges of first-degree felony murder,
MCL 750.316(1)(b), and armed robbery, MCL 750.529, but was unable to reach a verdict on the
remaining charges, resulting in defendant being retried on the remaining charges. The jury at
defendant’s second trial acquitted him of an additional charge of resisting or obstructing a police
officer, MCL 750.81d(1).


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shooting. Upon seeing the troopers, the shooter, who was wearing a gray hooded sweatshirt and
a white baseball cap, fled on foot. The troopers gave chase, ultimately catching defendant. The
defense theory at trial was that defendant was misidentified as the shooter. No witnesses
identified defendant by facial characteristics, but provided general clothing descriptions, skin
color, and height.

                            I. SUFFICIENCY OF THE EVIDENCE

       Defendant first argues that there was insufficient evidence of his identity as the shooter to
support his convictions. We disagree. When ascertaining whether sufficient evidence was
presented at trial to support a conviction, we view the evidence in a light most favorable to the
prosecution and determine whether a rational trier of fact could find that the essential elements of
the crime were proven beyond a reasonable doubt. People v Reese, 491 Mich 127, 139; 815
NW2d 85 (2012). Circumstantial evidence and reasonable inferences arising from the evidence
may constitute satisfactory proof of the elements of the crime. People v Brantley, 296 Mich App
546, 550; 823 NW2d 290 (2012). “[A] reviewing court is required to draw all reasonable
inferences and make credibility choices in support of the jury’s verdict.” People v Nowack, 462
Mich 392, 400; 614 NW2d 78 (2000).

        Identity is an essential element in a criminal prosecution, People v Oliphant, 399 Mich
472, 489; 250 NW2d 443 (1976), and the prosecution must prove the identity of the defendant as
the perpetrator of a charged offense beyond a reasonable doubt. People v Kern, 6 Mich App 406,
409-410; 149 NW2d 216 (1967). Positive identification by a witness or circumstantial evidence
and reasonable inferences arising from it may be sufficient to support a conviction of a crime.
People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000); Nowack, 462 Mich at 400. The
credibility of identification testimony is for the trier of fact to resolve and this Court will not
resolve it anew. Id.

       The prosecution presented strong circumstantial evidence that defendant was the shooter.
Two Michigan State Police troopers and a civilian witness, who was a former marine, described
the shooter as a black man, wearing a gray hooded sweatshirt and a white or light-colored
baseball hat, which matched defendant’s description. The troopers were on patrol when they
observed two men in the lounge parking lot, one being the man in the gray hooded sweatshirt and
baseball cap. Soon thereafter, the troopers heard several gunshots, immediately returned to the
lounge area, and Sergeant Geoffrey Boyer observed the man in the gray hooded sweatshirt and
baseball cap, whom he had just seen in the parking lot, firing a suspected firearm. The civilian
witness had also observed this man shooting. Upon seeing the troopers, the man stopped
shooting and fled on foot. Sgt. Boyer immediately chased the man, which led to defendant’s
apprehension. Sgt. Boyer identified defendant as the same person whom he had observed
shooting, flee on foot, and eventually apprehended. In addition to Sgt. Boyer’s identification
testimony, there was evidence that defendant was missing a shoe when apprehended, and the
shoe was found by a canine unit on the path of the chase. Keys found in defendant’s possession
belonged to a vehicle that was parked near Mona’s Lounge.

       The reasonable inferences arising from this evidence were sufficient to enable the jury to
find beyond a reasonable doubt that defendant was the gunman from Mona’s Cocktail Lounge
who shot the two victims. Although defendant argues that different inferences could be drawn

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from the evidence, those challenges are related to the weight rather than the sufficiency of the
evidence. People v Scotts, 80 Mich App 1, 9; 263 NW2d 272 (1977). The same challenges to
the identification testimony that defendant raises on appeal were presented to the jury during trial
and specifically argued to the jury during closing argument. We will not interfere with the jury’s
role of determining issues of weight and credibility, nor resolving conflicts in the evidence.
People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992), amended 441 Mich 1201
(1992). Rather, this Court is required to draw all reasonable inferences and make credibility
choices in support of the jury’s verdict. Nowack, 462 Mich at 400. There was sufficient
evidence of defendant’s identity.

                           II. DEFENDANT’S STANDARD 4 BRIEF

       Defendant raises additional issues of effective assistance of counsel and prosecutorial
misconduct in a pro se supplemental brief filed pursuant to Supreme Court Administrative Order
No. 2004-6, Standard 4. We disagree with defendant’s additional claims.

                         A. EFFECTIVE ASSISTANCE OF COUNSEL

        Defendant argues that defense counsel was ineffective because he was not given
sufficient preparation time and was therefore unprepared for trial. Because defendant did not
raise an ineffective assistance of counsel claim in the trial court, our review of this issue is
limited to mistakes apparent on the record. People v Heft, 299 Mich App 69, 80; 829 NW2d 266
(2012). “To demonstrate ineffective assistance of counsel, a defendant must show that his or her
attorney’s performance fell below an objective standard of reasonableness under prevailing
professional norms and that this performance caused him or her prejudice.” People v Nix, 301
Mich App 195, 207; 836 NW2d 224 (2013) (citation omitted). “To demonstrate prejudice, a
defendant must show the probability that, but for counsel’s errors, the result of the proceedings
would have been different.” Id. “A defendant must meet a heavy burden to overcome the
presumption that counsel employed effective trial strategy.” People v Payne, 285 Mich App
181, 190; 774 NW2d 714 (2009).

        “A defendant is entitled to have his counsel prepare, investigate, and present all
substantial defenses.” People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990). When
claiming ineffective assistance due to defense counsel’s unpreparedness, a defendant must show
prejudice resulting from the lack of preparation. People v Caballero, 184 Mich App 636, 640,
642; 459 NW2d 80 (1990). The record does not support defendant’s assertion that defense
counsel was unprepared to try the case. First, defendant has not provided any citation to the
record supporting his claim that defense counsel either expressed or demonstrated that he was
unprepared for trial or needed more time. To the contrary, defense counsel’s questions, remarks,
and arguments throughout trial demonstrate that he was familiar with the case and had prepared
for trial. Indeed, this was defendant’s second jury trial and defense counsel represented
defendant at his first trial, at which a jury acquitted defendant of the armed robbery and felony-
murder charges. This fact further demonstrates counsel’s familiarity with the case. Although
defendant argues that defense counsel failed to “investigate and prepare for testimony from the
police evidence technician concerning the gunshot powder residue test,” no gunpowder residue
testimony was presented at defendant’s trial. Counsel cannot be deemed ineffective for failing to
adequately prepare to address a matter that was not presented at trial. Defendant has not

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otherwise demonstrated that he was prejudiced by counsel’s alleged unpreparedness in that
regard. Caballero, 184 Mich App at 642.

        Defendant also argues that defense counsel was ineffective for failing to prepare for the
testimony of a proposed witness, Shinika Taylor. Taylor, who was listed on the prosecution’s
witness list, was not called to testify. Defendant claims that Taylor would have testified that he
was not the shooter. Again, however, defendant has not demonstrated how he was prejudiced by
counsel’s alleged unpreparedness to question this witness when the witness was never called at
trial. Caballero, 184 Mich App at 642. To the extent that defendant is arguing that defense
counsel should have called Taylor as a defense witness, decisions regarding whether to call
witnesses are presumed to be matters of trial strategy, People v Rockey, 237 Mich App 74, 76;
601 NW2d 887 (1999), and the failure to call a witness can constitute ineffective assistance only
where it deprives the defendant of a substantial defense. Payne, 285 Mich App at 190. Although
defendant asserts that Taylor would have testified that he was not the shooter, he has not
provided a witness affidavit, or identified any other evidence of record establishing that Taylor
actually would have provided favorable testimony. Absent such a showing, defendant has not
established that he was prejudiced by defense counsel’s failure to call the proposed witness at
trial. Defendant has not overcome the strong presumption that defense counsel provided
constitutionally effective assistance.

                            B. PROSECUTORIAL MISCONDUCT

       Defendant also argues that the prosecution violated Brady v Maryland, 373 US 83; 83 S
Ct 1194; 10 L Ed 2d 215 (1963), by withholding the exculpatory results from a gunpowder
residue test. Because defendant did not raise a Brady violation in the trial court, this claim is
unpreserved and our review is limited to plain error affecting defendant’s substantial rights.
People v Carines, 460 Mich 750, 752-753, 763-764; 597 NW2d 130 (1999).

        A criminal defendant has a due process right of access to certain information possessed
by the prosecution if that evidence might lead a jury to entertain a reasonable doubt about a
defendant’s guilt. People v Lester, 232 Mich App 262, 278-279; 591 NW2d 267 (1998),
overruled in part on other grounds in People v Chenault, 495 Mich 142; 845 NW2d 731 (2014),
citing Brady. To establish a Brady violation, a defendant must prove: (1) that the state possessed
evidence favorable to the defendant; (2) that the prosecution suppressed the favorable evidence;
and (3) that had the evidence been disclosed to the defense, a reasonable probability exists that
the outcome of the proceedings would have been different. Chenault, 495 Mich at 150.

         Defendant has not established that the prosecutor committed a Brady violation.
Defendant’s argument is supported only by his own unsubstantiated statement that, after his
arrest, he was tested for gunpowder residue and heard a police evidence technician state that no
residue was found. To the extent defendant relies on this alleged statement, he cannot establish
that this evidence was suppressed because he admits having heard the statement. Defendant has
not offered any proof that any other evidence of a gunshot residue test or any test results actually
exist, let alone that the prosecution concealed the information. No gunpowder residue testimony
was presented at defendant’s trial. Therefore, defendant’s claim based on a Brady violation
necessarily fails.


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                                        III. SENTENCE

       Defendant argues that he is entitled to resentencing because the trial court “was
mistaken” about the correct guidelines range and erroneously believed that the guidelines range
was 315 to 787 months, when it was actually 270 to 675 months after the court made corrections
to the scoring of the guidelines variables. This claim of sentencing error has been waived.
However, we conclude that counsel’s performance was ineffective in this regard. Consequently,
we conclude that defendant is entitled to resentencing.

        “[A] party cannot request a certain action of the trial court and then argue on appeal that
the action was error.” People v McCray, 210 Mich App 9, 14; 533 NW2d 359 (1995). At
sentencing, defense counsel expressly represented that even after the court’s adjustments to the
scoring of certain offense variables, the guidelines range would still be 315 to 787 months. Trial
counsel’s waiver would ordinarily extinguish any error. People v Carter, 462 Mich 206, 215-
216; 612 NW2d 144 (2000). However, we agree with defendant that his corrected guidelines
range was actually 270 to 675 months. Given the circumstances, we find trial counsel’s
performance to have been ineffective in this regard. Stipulating to the wrong guidelines range
was objectively unreasonable and obviously affected the outcome of the proceedings. See Nix,
301 Mich App at 207. Under the circumstances, we find defendant entitled to relief irrespective
of his counsel’s waiver. Therefore, we find defendant entitled to a remand for resentencing.
However, on remand, defendant shall have the opportunity to avoid resentencing by promptly
notifying the trial court if he does not seek resentencing. People v Lockridge, 498 Mich 358,
398; 870 NW2d 502 (2015).

       We remand for resentencing, unless defendant notifies the court that he does not wish
resentencing, and in all other respects we affirm.

                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Michael J. Kelly
                                                            /s/ Amy Ronayne Krause




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