            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


In re DEMETRIOS LASHAUN TRIPLETT, JR.,
Minor.


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 30, 2019
              Petitioner-Appellee,

v                                                                  No. 342645
                                                                   Van Buren Circuit Court
DEMETRIOS LASHAUN TRIPLETT, JR.,                                   Family Division
                                                                   LC No. 15-018396-DL
              Respondent-Appellant.


Before: SHAPIRO, P.J., and BORRELLO and BECKERING, JJ.

PER CURIAM.

        Respondent appeals by right the order of adjudication sustaining the charges of fourth-
degree fleeing and eluding, MCL 257.602a(2), and possession of tobacco by a minor, MCL
722.642, and dismissing the charge of possession of marijuana, MCL 333.7403(2)(d). The trial
court entered an order of disposition requiring that respondent abide by the guidelines of
behavior including attendance and participation in school, complete 20 hours of community
service, and write a 2-page essay on “What I Have Learned From My Court Experience.” We
affirm.

                                       I. BASIC FACTS

         This case arises from an August 20, 2017 traffic stop. Respondent, sixteen years old at
the time, was driving a red Ford Mustang with a defective headlight westbound on County Road
380 in Colombia Township, Van Buren County. Van Buren Sheriff’s Deputy Daniel Rowse
testified at respondent’s trial that he was patrolling eastbound on County Road 380 in a fully
marked police car when he passed the Mustang and, noticing the defective headlight, attempted
to turn around and catch up with it. However, while executing a multi-point turn on the narrow
road, the deputy lost sight of the car. After briefly searching the area, Deputy Rowse saw a Ford
Mustang in a private drive, a couple hundred feet from the road (“the first driveway”). The
vehicle’s taillights were on and the car appeared to be running. Deputy Rowse explained that he


                                               -1-
then positioned himself approximately 100 yards west of that driveway, on the edge of a
blueberry field, and watched the driveway to see what the vehicle would do.

        Approximately three minutes later, Deputy Rowse testified, he saw the Mustang, with its
defective headlight, pull out of the driveway and continue traveling westbound on County Road
380. Deputy Rowse pursued the vehicle and accelerated in an attempt to catch up, but the
Mustang was also accelerating in what the deputy believed was an attempt to evade a traffic stop.
Deputy Rowse activated his overhead flashing lights to conduct a stop of the Mustang. The
Mustang did not stop right away, and to the backdrop of the sound of respondent’s Mustang
engine accelerating, Deputy Rowse can be heard in a video recording inside his vehicle reporting
on his dispatch radio that “I’ve got one not stopping.”1 Right then, rather than pulling onto the
side of the road, respondent very swiftly pulled into a private drive on the north side of County
Road 380. Deputy Rowse testified that as respondent’s car entered the dirt portion of the
driveway it fishtailed, kicking up a cloud of dust. Deputy Rowse followed and initiated contact
with respondent and his passenger and can be heard in the video asking them “why you guys
trying to dip out?” and “you pulled in here hot.”

         Respondent testified that he was going 55 miles per hour when the officer activated his
overhead flashing lights and that he stopped about “nine seconds” after the lights were activated.
Deputy Rowse testified that it was about 15 seconds. The video showed a lapse of 15 seconds
from the time the deputy activated his overhead lights until respondent turned into the second
driveway. Respondent testified that when he saw that the patrol car’s lights had activated, he
slowed down as safely as he thought he could and pulled into his friend’s driveway to stop. He
stated that his destination was “just where they happened to catch-pull me over at.” Respondent
insisted that he was not attempting to run or hide from the police. Asked why he pulled into the
first driveway, respondent indicated that he knew his headlight was defective, he did not have the
money to have it repaired, and he thought he would pull in and let the deputy go past him,
reasoning, “No need to pull me over if I’m not doing nothing wrong, but going home.”

       Respondent was charged, convicted after a bench trial, and sentenced as indicated. This
appeal followed.

                                         II. ANALYSIS

        Respondent argues that his trial counsel was ineffective for failing to advise him of the
pros and cons of testifying in his own defense and for failing to discuss possible defense
strategies with him. We disagree. In general, a determination whether a respondent received
effective assistance of counsel “is a mixed question of fact and constitutional law.” People v
LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). “This Court reviews findings of fact for



1
  The prosecution admitted into evidence and played for the trial court a video of the pursuit,
starting with Deputy Rowse’s waiting near the blueberry field, and the eventual stop produced by
the dash camera of Deputy Rowse’s patrol car.



                                               -2-
clear error and questions of law de novo.” People v Heft, 299 Mich App 69, 80; 829 NW2d 266
(2012).

        In order to prevail on his claim of ineffective assistance of counsel, respondent had to
prove: “(1) counsel’s performance fell below an objective standard of reasonableness and (2) but
for counsel’s deficient performance, there is a reasonable probability that the outcome would
have been different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). The
“effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise.” People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001).

        Even if we assume for the sake of argument that respondent’s trial counsel did not
discuss with him the advantages and disadvantages of testifying in his own defense, respondent
has failed to present evidence that, but for this alleged deficiency, the outcome of the bench trial
would have been different. Contrary to respondent’s assumption, the trial court did not rely on
respondent’s trial testimony to find him guilty of fleeing and eluding a police officer, but on the
properly admitted dash camera video from Deputy Rowse’s patrol vehicle. Ruling from the
bench, the court said that it found respondent’s reply to Deputy Rowse’s question about why he
pulled into the first driveway indicative of respondent’s frame of mind. Referring to the video,
the court said:

       I remembered him saying that he pulled into that driveway because he knew that
       he was gonna be stopped. And so, um, that shows then when he pulled out and
       suddenly the police officer was around him, he certainly had plenty of time. The
       officer turned on his lights right away. He had plenty of time to pull to the side of
       the road or to slow down and slowly go down the road to where he knew there
       was a driveway. Either way would’ve been fine, but it’s very clear to me that it
       appears he was thinking hey, it worked once, I sped away and drove – pulled into
       a driveway, maybe it will work again. Unfortunately, this officer was too close
       behind him and he was not able to get away at that point. And, um, for whatever
       reason, he decided to speed down the road, pull into that driveway, where he was
       gonna apparently drop off his friend.

         The court continued by noting that it had counted the lapse of time between when the
deputy activated his lights and when respondent pulled into the second driveway and concluded
that respondent had had plenty of time to stop before getting to the second driveway. The fact
that he did not stop, coupled with his statement indicating, in the words of the court, “that he
knew he was being followed earlier or that he would be . . . and he did not want to be pulled
over,” proved beyond a reasonable doubt that respondent was guilty of fleeing and eluding. In
light of the fact that the trial court based its guilty verdict on the dash camera video and not on
respondent’s testimony, even if respondent’s counsel had discussed with him the pros and cons
of testifying, and even if respondent had elected not to testify, there is no reasonable probability
that the outcome would have been different.




                                                -3-
        Respondent also contends that counsel rendered ineffective assistance by failing to
discuss possible defenses with him. This contention is without merit. Respondent’s counsel
provided a defense consistent with respondent’s explanation of events, arguing that respondent’s
pulling into the first driveway did not satisfy the elements of fourth-degree fleeing and eluding2
because Deputy Rowse had not signaled respondent to bring his car to a stop, and that when the
deputy did signal respondent to stop, respondent did so within seconds. Respondent does not
indicate what other reasonable defenses might have been available under the circumstances, nor
has he proven that, but for counsel’s failure to discuss defenses with him, the outcome of the
case would have been different. For the reasons stated above, respondent’s claim of ineffective
assistance must fail.

       Affirmed.



                                                            /s/ Douglas J. Shapiro
                                                            /s/ Stephen L. Borrello
                                                            /s/ Jane M. Beckering




2
  Absent aggravating factors inapplicable here, a driver is guilty of fourth-degree fleeing and
eluding if the driver violates MCL 257.602(a)(1), which provides:
       A driver of a motor vehicle who is given by hand, voice, emergency light, or siren
       a visual or audible signal by a police or conservation officer, acting in the lawful
       performance of his or her duty, directing the driver to bring his or her motor
       vehicle to a stop shall not willfully fail to obey that direction by increasing the
       speed of the motor vehicle, extinguishing the lights of the motor vehicle, or
       otherwise attempting to flee or elude the officer. This subsection does not apply
       unless the police or conservation officer giving the signal is in uniform and the
       officer’s vehicle is identified as an official police or department of natural
       resources vehicle.



                                               -4-
