                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 24, 2018
              Plaintiff-Appellee,

v                                                                  No. 336504
                                                                   Kalamazoo Circuit Court
WILLIAM CALOGERO ADAMS, JR.,                                       LC No. 2016-000940-FH

              Defendant-Appellant.


Before: GLEICHER, P.J., and M. J. KELLY and CAMERON, JJ.

PER CURIAM.

         A jury convicted defendant of felonious assault, MCL 750.82, and use of a firearm during
the commission of a felony (felony-firearm), MCL 750.227b, for pulling a gun on and
threatening his sister’s boyfriend. Defendant challenges the sufficiency of the evidence
supporting his assault conviction, the jury’s rejection of his self-defense theory, and counsel’s
failure to present his other sister as a corroborating witness. We discern no error and affirm.

                                      I. BACKGROUND

       On July 10, 2016, Alisha Adams drove to the home of her mother to pick up her two
children. The father of Alisha’s youngest child, Cormariest Jones, was in the passenger seat.
When they arrived, Jones waited outside in the parked vehicle. Alisha’s siblings, defendant and
Caterrina Adams, were inside. Alisha testified that as she collected her children, defendant
passed her in the hallway and headed out of the home “in a rush.”

        Jones described that defendant stormed up to the car and started yelling at him.
Defendant filmed this interaction and the video indeed depicts defendant confronting Jones.
When the interaction began, Jones had an unlit cigarette in his mouth. He reached into the car’s
center console and, as clearly depicted in defendant’s video, removed a blue lighter to light the
cigarette. Defendant testified that he believed Jones was reaching for a gun. This fear was
founded, defendant claimed, because the parties had a strained relationship. On Mother’s Day,
defendant had pulled a gun on Jones during an argument. A few days later, Jones arrived at
defendant’s place of employment with a group of friends, seeking to fight defendant.

       As Jones attempted to light his cigarette, defendant withdrew a handgun. He turned his
back on Jones’s car and cocked the weapon before turning back to face the victim. Jones left the
car and went to the vehicle’s far side for shelter. Alisha and Caterrina ran out and attempted to

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restrain defendant while he waved his gun in the air and shouted threats at Jones. Jones called
911 and the operator advised him to leave with Alisha and their children. When the police
arrived, defendant told the officers that he heard someone screaming and came outside to
investigate, bringing his gun because “he thought he had to” given his relationship with Jones.

                                II. ASSISTANCE OF COUNSEL

        Defendant first contends that defense counsel provided constitutionally deficient
assistance because she failed to present the testimony of Caterrina to support his theory of self-
defense. Defendant raised this issue below and the trial court conducted a hearing pursuant to
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). At the hearing, Caterrina testified that
she heard Jones yelling at defendant and then saw him reach under his seat. Caterrina then
turned her back to walk toward defendant and did not see what Jones did next. However,
Caterrina admitted that she had made inconsistent statements about whether she saw defendant
holding a gun, describing that she “saw a gun, forgot [she] saws a gun, remembered [she] saw a
gun.”

        Counsel described that she repeatedly tried to contact Caterrina, but she would not return
the attorney’s calls. Counsel listed Caterrina as a potential witness, but intended to call her to
establish the factual basis for the self-defense theory only if defendant did not take the stand.
Counsel was concerned about Caterrina’s credibility based on her reaction to defendant’s acts in
defendant’s self-recorded video, her changing story to the police, and her unwillingness to return
counsel’s calls. The trial court found that counsel acted reasonably and that Caterrina’s
testimony would have been cumulative in any event.

         “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). We
review the lower court’s factual findings for clear error and legal conclusions de novo, deferring
to that court’s unique opportunity to judge the credibility of witnesses appearing before it. Id.
We review for an abuse of discretion the lower court’s denial of defendant’s motion for a new
trial. People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003).

        “[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) (quotation marks and citation omitted). 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 ineffective assistance challenge 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). With respect to the prejudice prong, 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 (quotation marks and citation omitted).


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         “Decisions regarding whether to call or question witnesses are presumed to be matters of
trial strategy.” People v Russell, 297 Mich App 707, 716. Failing to call a witness may only be
deemed ineffective “if it deprives the defendant of a substantial defense.” Id. (quotation marks
and citation omitted). Defense counsel more than adequately presented the theory of self-
defense at trial. Jones admitted that there was “friction” or “tension” between he and defendant
that had led to violent interactions in the past. Defendant took the stand and explained that he
had a concealed weapons license and brought his handgun outside because he feared Jones might
act violently again. Defendant further described his belief that Jones was reaching for a gun,
leading defendant to pull out and cock his own weapon. Caterrina would have added nothing to
this testimony. Indeed, her testimony may have hindered the defense as she previously lied to
the police and told them defendant did not possess a gun that day.

        That the defense theory was unsuccessful does not render counsel’s assistance
ineffective. People v Matuszak, 263 Mich App 42, 61; 687 NW2d 342 (2004). Defendant’s own
video recording of his interaction with Jones likely destroyed his defense. The video showed
that Jones clearly had an unlit cigarette in his mouth and that when Jones reached over, his hand
came back into view holding a lighter. Only then did defendant turn his back on Jones (even
though he claimed he was afraid Jones would shoot him), pull out his gun and cock it. Despite
that defendant knew or should have known that Jones was holding only a lighter, defendant
proceeded to stalk Jones around the car while yelling and waving his gun in the air. Given this
record, Caterrina’s absence at trial was not prejudicial and defendant was not entitled to a new
trial.

                            III. SUFFICIENCY OF THE EVIDENCE

        Defendant further contends that the prosecution presented insufficient evidence to
support his felonious assault conviction. We review de novo a challenge to the sufficiency of the
evidence, examining the “record evidence . . . in the light most favorable to the prosecution to
determine 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). “Circumstantial evidence and reasonable inferences drawn from it may be
sufficient to prove the elements of the crime.” People v Wilkens, 267 Mich App 728, 738; 705
NW2d 728 (2005). We “must draw all reasonable inferences and make credibility choices in
support of the jury verdict.” People v Cameron, 291 Mich App 599, 613; 806 NW2d 371 (2011)
(quotation marks and citation omitted). We “will not interfere with the trier of fact’s role of
determining the weight of the evidence or the credibility of witnesses.” People v Kanaan, 278
Mich App 594, 619; 751 NW2d 57 (2008).

        To convict a defendant of felonious assault, the prosecution must establish “(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, 9; 742
NW2d 610 (2007), citing People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999). The
felonious assault statute, MCL 750.82, specifically includes “a gun, revolver, [or] pistol” as a per
se dangerous weapon. MCL 750.82(1).

         Defendant admitted at trial that he brandished a dangerous weapon, a handgun. Jones
testified that when he saw defendant pull out his handgun and heard him cock it, he felt fear and

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anger and fled to the far side of the car to protect himself. Moreover, because defendant
continued to threaten Jones and wave his gun in the air after it was clear that Jones only reached
for a cigarette lighter, the jury could infer that defendant intended to “place [Jones] in reasonable
apprehension of an immediate battery.” Viewing this evidence in the light most favorable to the
prosecution, the jury’s verdict was well supported.

        However, in a somewhat awkwardly worded third appellate issue, defendant challenges
the jury’s rejection of his self-defense claim. To establish a claim of self-defense, a defendant
must show that (1) he “has not or is not engaged in the commission of a crime at the time” he
uses force, (2) he is somewhere he “has a legal right to be with no duty to retreat,” and (3) he
“honestly and reasonably believed that the use of . . . force is necessary” to defend himself from
imminent death or imminent great bodily harm. MCL 780.972; People v Conyer, 281 Mich App
526, 529-530; 762 NW2d 198 (2008). The only element at issue here is whether defendant
“honestly and reasonably believed” he needed to brandish a weapon and threaten Jones in order
to prevent an act of violence on Jones’s part.

        The jury heard the conflicting testimony of the witnesses and apparently credited Jones
and Alisha over defendant. As noted, defendant’s self-recorded video corroborated Jones’s and
Alisha’s claims that defendant overreacted and did not take “defensive” action until after it was
clear that Jones only grabbed a cigarette lighter. We may not interfere with the jury’s assessment
of the witnesses’ credibility and resolution of this credibility contest. See People v Lemmon, 456
Mich 625, 637; 576 NW2d 129 (1998); Cameron, 291 Mich App at 613; Kanaan, 278 Mich App
at 619; . Accordingly, defendant has not established that he is entitled to relief.

       We affirm.



                                                              /s/ Elizabeth L. Gleicher
                                                              /s/ Michael J. Kelly
                                                              /s/ Thomas C. Cameron




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