            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PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  May 23, 2019
              Plaintiff-Appellee,

v                                                                 No. 342178
                                                                  Wayne Circuit Court
ALVIN LEE DOSTER,                                                 LC No. 17-005894-01-FC

              Defendant-Appellant.


Before: REDFORD, P.J., and MARKEY and K. F. KELLY, JJ.

PER CURIAM.

         Defendant appeals as of right a jury’s conviction of defendant of second-degree murder,
MCL 750.317, felon in possession of a firearm, MCL 750.224f, and possession of a firearm
during the commission of a felony, MCL 750.227b. The trial court sentenced defendant to
concurrent prison terms of 28 to 56 years for the murder conviction, and three to five years for
the felon-in-possession conviction, to be served consecutive to a two-year term of imprisonment
for his felony-firearm conviction. We affirm.

        Defendant fatally shot his 33-year-old nephew, Michael Wilson, outside defendant’s
Detroit home on June 11, 2017. The prosecution presented evidence that Wilson drove to
defendant’s home, which was formerly the home of Wilson’s grandmother before her death.
When Wilson arrived, his cousin, Darius Loving, and a close family friend, Demetrious Johnson,
were outside working on mini bikes. Eventually, the three men went inside the house. After a
brief cordial exchange between defendant and Wilson, an argument ensued and defendant
demanded that Wilson leave the house. When Wilson did not leave, defendant left the room,
retrieved a gun from a back room, and upon his return repeated his demand that Wilson leave as
he pointed the gun toward the ground and pulled the trigger. The gun dry fired and Loving and
Johnson quickly left the house. Because Wilson did not leave, Loving cautiously re-entered the
house to get Wilson who was still standing face-to-face with the armed defendant. At Loving’s
urging, Wilson left the house with Loving, using the back door. After they walked out, Loving
heard defendant lock the back door behind them. Wilson and Loving walked from the backyard
toward the street using a path between defendant’s house and the house next door. While
walking, Loving heard a gunshot and defendant’s voice, originating from the front of the house.


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He then saw that Wilson had been shot in the chest. A neighbor heard two men arguing before
an approximate one-minute pause, a gunshot, and one of the men state, “Motherf***er, I told
you to go home.” Defendant shot Wilson, his nephew, in the chest with a .44 magnum caliber
handgun. The shot proved fatal.

        Loving went inside after the shooting where he saw defendant still holding the firearm.
Defendant left the house and walked to a nearby store, disposing of his firearm in a garbage can
along the way. He then went to work and hours later took an Uber ride to the police station
where he requested a police escort to his home because he heard there had been a shooting. In a
statement to the police, defendant denied being involved in the shooting, being home at the time
of the shooting, or seeing Wilson on the day of the shooting. At trial, defendant asserted a self-
defense theory. Consistent with that theory, defendant testified that he shot the angry,
aggressive, and weightier Wilson in self-defense, and explained that he initially lied to the police
because he was nervous and confused.

                  I. INEFFECTIVE ASSISTANCE – JURY INSTRUCTIONS

       Defendant first argues that defense counsel provided ineffective assistance by failing to
request a jury instruction on the necessarily included lesser offense of voluntary manslaughter.
We disagree.

         To preserve a claim of ineffective assistance of counsel, defendant must move in the trial
court for a new trial or an evidentiary hearing.1 People v Petri, 279 Mich App 407, 410; 760
NW2d 882 (2008). Here, defendant did not move in the trial court for a new trial or an
evidentiary hearing. However, defendant filed two motions to remand his case to permit him to
move in the trial court for a new trial or an evidentiary hearing. This Court denied defendant’s
motions because he failed to persuade the Court of the necessity of remanding the case.
Consequently, no testimonial record was made in the trial court pursuant to a motion for new
trial or evidentiary hearing. Therefore, our review is limited to errors apparent on the record.
People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009).

        “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. The effective assistance of counsel is presumed, and the burden
is on the defendant to establish otherwise. People v Roscoe, 303 Mich App 633, 644; 846 NW2d
402 (2014).

       Defendant correctly notes that voluntary manslaughter is a necessarily included lesser
offense of murder, distinguished by the element of malice. People v Mendoza, 468 Mich 527,
533-534, 536, 540-541; 664 NW2d 685 (2003). “Voluntary manslaughter requires a showing


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


                                                -2-
that (1) defendant killed in the heat of passion, (2) this passion was caused by an adequate
provocation, and (3) there was no lapse of time during which a reasonable person could have
controlled his passions.” People v Roper, 286 Mich App 77, 87; 777 NW2d 483 (2009). At
trial, defendant testified that he acted in self-defense because he was afraid of what Wilson might
do to him, and not that he discharged his firearm at Wilson in the heat of passion following
sufficient and adequate provocation. Indeed, defense counsel vigorously argued self-defense in
closing argument and the jury was instructed on this defense. The record reflects that counsel
contemplated whether to request a manslaughter instruction and considered whether inclusion of
such instruction fit this case. Defense counsel decided against requesting that the jury be
instructed on this lesser offense. Counsel reasonably could have chosen not to attempt to
mitigate the charged greater offense by requesting that the jury be instructed on the lesser
included offense of manslaughter. Doing so, however, could have confused the jury by
undermining defendant’s asserted self-defense theory.

        Counsel’s decision to forgo requesting the manslaughter instruction fell within the range
of reasonable professional conduct because a legitimate strategic reason existed for the omission.
Defense counsel has wide discretion regarding matters of trial strategy and “[t]his Court will not
substitute its judgment for that of defense counsel or review decisions with the benefit of
hindsight.” People v Heft, 299 Mich App 69, 83; 829 NW2d 266 (2012). The fact that the
strategy chosen by defense counsel did not work does not constitute ineffective assistance of
counsel. People v Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996).
Defendant has not overcome the strong presumption that defense counsel provided
constitutionally effective assistance in this regard.

              II. DEFENDANT’S SECOND-DEGREE MURDER CONVICTION

                            A. SUFFICIENCY OF THE EVIDENCE

       Defendant argues that the prosecution failed to present sufficient evidence to prove
beyond a reasonable doubt that he acted with the requisite malice to sustain his conviction of
second-degree murder. We disagree.

        We review de novo a challenge to the sufficiency of the evidence. People v Bailey, 310
Mich App 703, 713; 873 NW2d 855 (2015). When ascertaining whether the prosecution
presented sufficient evidence to support a conviction, this Court reviews the evidence in a light
most favorable to the prosecution and determines whether a rational trier of fact could find that
the essential elements of the crime were proven beyond a reasonable doubt. Id. “[A] reviewing
court is required to draw all reasonable inferences and make credibility choices in support of the
jury’s verdict.” Id. In Bailey, this Court explained:

       the prosecutor is not obligated to disprove every reasonable theory consistent with
       innocence to discharge its responsibility; it need only convince the jury in the face
       of whatever contradictory evidence the defendant may provide. Further,
       circumstantial evidence and reasonable inferences arising from that evidence can
       constitute satisfactory proof of the elements of a crime. [Id. (quotation marks,
       alterations, and citations omitted.]


                                                -3-
        The elements of second-degree murder are “(1) a death, (2) the death was caused by an
act of the defendant, (3) the defendant acted with malice, and (4) the defendant did not have
lawful justification or excuse for causing the death.” People v Smith, 478 Mich 64, 70; 731
NW2d 411 (2007). Defendant argues only that the prosecution did not prove beyond a
reasonable doubt that he acted with the malice necessary to establish second-degree murder.
“Malice is defined as ‘the intent to kill, the intent to cause great bodily harm, or the intent to do
an act in wanton and willful disregard of the likelihood that the natural tendency of such
behavior is to cause death or great bodily harm.’ ” People v Werner, 254 Mich App 528, 531;
659 NW2d 688 (2002) (citation omitted). “The prosecution is not required to prove that the
defendant actually intended to harm or kill. Instead, the prosecution must prove the intent to do
an act that is in obvious disregard of life-endangering consequences.” Id. (quotation marks and
citations omitted). Malice may be inferred from facts in evidence, including the use of a
dangerous weapon. People v Bulls, 262 Mich App 618, 627; 687 NW2d 159 (2004). “[M]inimal
circumstantial evidence will suffice to establish the defendant’s state of mind, which can be
inferred from all the evidence presented.” People v Kanaan, 278 Mich App 594, 622; 751
NW2d 57 (2008).

        In this case, the prosecution presented evidence that established that, after the argument
between defendant and Wilson ended, Wilson exited defendant’s house. Wilson was unarmed
and walking away from defendant’s house when defendant went outside and discharged his gun
toward Wilson, lethally striking him in his chest. Witnesses heard defendant declare,
“Motherf***er, I told you to go home.” This evidence, viewed in a light most favorable to the
prosecution, sufficed to permit a rational trier of fact to infer beyond a reasonable doubt that
defendant possessed the requisite malicious intent for second-degree murder. Further, evidence
showed that after the crime defendant fled the scene, hid the firearm, and lied to the police about
his involvement. Such evidence further supports a finding of malice. In sum, the evidence of the
nature and circumstances surrounding Wilson’s killing sufficed to enable a jury to rationally
infer that, at a minimum, defendant acted with the intent to cause great bodily harm when he
discharged a loaded handgun at an unarmed man as the man was walking away.

        Defendant essentially argues that the evidence failed to sustain his conviction because the
jury should have believed his version of the events. However, defendant’s reliance on the weight
and credibility of his own testimony ignores that when evaluating the sufficiency of evidence,
this Court must resolve all conflicts in the evidence in favor of the prosecution. People v
Lockett, 295 Mich App 165, 180; 814 NW2d 295 (2012). This deferential standard of review is
the same whether the evidence is direct or circumstantial. Id. “Circumstantial evidence and
reasonable inferences arising from that evidence can constitute satisfactory proof of the elements
of a crime.” People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). Properly understood,
defendant’s challenge relates to the weight of the evidence rather than its sufficiency. The jury,
however, heard defendant’s testimony and accorded the weight it saw fit, and this Court will not
interfere with the trier of fact’s role of determining issues of weight and credibility. People v
Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008). The record reflects that the prosecution
presented sufficient evidence to support defendant’s conviction of second-degree murder.




                                                -4-
                           B. GREAT WEIGHT OF THE EVIDENCE

         In a related claim of error, defendant argues that the verdict of second-degree murder was
against the great weight of the evidence because no evidence established that he acted with the
required malice. Defendant did not move for a new trial in the trial court to preserve his great-
weight claim. Therefore, we may only review this unpreserved claim for plain error affecting
defendant’s substantial rights. People v Cameron, 291 Mich App 599, 617-618; 806 NW2d 371
(2011). Defendant bears the burden to show that (1) an error occurred, (2) the error was plain,
i.e., clear or obvious, and (3) the plain error prejudiced substantial rights, i.e., the error affected
the outcome of the lower court proceedings. Id. at 618. A verdict may be vacated only when it
“does not find reasonable support in the evidence, but is more likely to be attributed to causes
outside the record such as passion, prejudice, sympathy, or some extraneous influence.” People
v DeLisle, 202 Mich App 658, 661; 509 NW2d 885 (1993) (citation omitted).

         In this case, sufficient evidence established that defendant possessed the requisite
malicious intent for second-degree murder. The evidence supported the jury’s finding beyond a
reasonable doubt for each of the elements of the charged offenses. The evidence presented at
trial did not weigh in defendant’s favor. Defendant’s great-weight arguments essentially consist
of an attack on the prosecution witnesses’ credibility and an implication that his own testimony
was more credible. Conflicting testimony and questions regarding the credibility of witnesses,
however, are not sufficient grounds for granting a new trial. Lemmon, 456 Mich at 643. The
record reflects that defense counsel cross-examined the witnesses at length and presented
credibility arguments to the jury, including why defendant’s self-defense theory should be
believed. A reviewing court should ordinarily defer to the jury’s determination of credibility
“unless it can be said that directly contradictory testimony was so far impeached that it ‘was
deprived of all probative value or that the jury could not believe it,’ or contradicted indisputable
physical facts or defied physical realities[.]” Id. at 644-646 (citation omitted). That is not the
case here. Nothing in the record warrants overriding the jury’s credibility determinations.
Accordingly, the jury’s verdict was not against the great weight of the evidence. Defendant has
failed and cannot establish the existence of any plain error that affected his substantial rights.

              III. DISPROPORTIONATE AND UNREASONABLE SENTENCE

       Defendant argues that his combined 30-year minimum sentence—28 years for murder
and two years for felony-firearm—is disproportionate and unreasonable. We disagree.

        Preliminarily, defendant’s 28-year minimum sentence for second-degree murder is within
his applicable sentencing guidelines range of 225 to 375 months. Because defendant did not
receive a sentence that exceeds the advisory sentencing guidelines range, his sentence is
presumptively reasonable. “[T]his Court is required to review for reasonableness only those
sentences that depart from the range recommended by the statutory guidelines.” People v
Anderson, 322 Mich App 622, 636; 912 NW2d 607, 614 (2018). If a trial court does not depart
from the recommended minimum sentence range, we need not evaluate the defendant’s sentence
for reasonableness and must affirm unless there was an error in scoring the guidelines or the trial
court relied on inaccurate information. Id. at 636-637.



                                                 -5-
        Defendant does not argue that the trial court erred in calculation of his minimum sentence
range and he has not demonstrated that the trial court relied on inaccurate information.
Defendant’s primary argument—that his sentence is disproportionate on the basis of his
sufficiency of the evidence argument—lacks merit. Each of the factors defendant points to as
justifying a reduced minimum sentence was known to the trial court because it was identified in
defendant’s presentence investigation report or otherwise discussed at trial and sentencing.
Accordingly, defendant lacks entitlement to resentencing. Id. at 637.

                          IV. DEFENDANT’S STANDARD 4 BRIEF

        In a pro se supplemental brief filed pursuant to Supreme Court Administrative Order No.
2004-6, Standard 4, defendant raises additional issues challenging the effectiveness of defense
counsel’s assistance. None of the issues have merit. Because defendant failed to raise these
ineffective-assistance claims in the trial court, our review is limited to mistakes apparent on the
record. Heft, 299 Mich App at 80.

                             A. FAILURE TO IMPEACH LOVING

        Defendant argues that defense counsel provided ineffective assistance by failing to
impeach Loving with three different statements that Loving made, including a statement he gave
to a police detective and statements at trial. Decisions regarding how to impeach witnesses and
what questions to ask are matters of trial strategy. People v Rockey, 237 Mich App 74, 76; 601
NW2d 887 (1999). Preliminarily, other than merely observing that Loving gave a prior
statement and testimony, defendant does not identify any inconsistencies or otherwise explain
how defense counsel could have used Loving’s police statement or prior testimony to undermine
Loving’s credibility. “An appellant may not merely announce his position and leave it to this
Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment
with little or no citation of supporting authority.” People v Kelly, 231 Mich App 627, 640-641;
588 NW2d 480 (1998). “The failure to brief the merits of an allegation of error constitutes an
abandonment of the issue.” People v McPherson, 263 Mich App 124, 136; 687 NW2d 370
(2004).

        We nonetheless observe that defense counsel knew of Loving’s police statement and
prior testimony because he brought them up during cross-examination. Defense counsel brought
out minor inconsistencies. Thus, the record indicates that defense counsel did use Loving’s
police statement and prior testimony in an attempt to impeach his credibility. The record does
not indicate additional lines of questioning that could have been pursued and, again, defendant
has not suggested what other questions counsel could have asked that would have undermined
Loving’s credibility in this regard. Therefore, defendant has failed to establish that defense
counsel’s conduct fell below the applicable standard.

                              B. FAILURE TO CALL EXPERTS

        Defendant also argues that defense counsel should have sought an expert investigator “to
go to the mall and get cop[ies] of the v[i]deo and DVDs” to show that defendant “couldn’t be at
two places at the same time.” “An attorney’s decision whether to retain witnesses, including
expert witnesses, is a matter of trial strategy.” People v Payne, 285 Mich App 181, 190; 774

                                                -6-
NW2d 714 (2009). A defense counsel’s failure to present a witness can constitute ineffective
assistance only where it deprives the defendant of a substantial defense. Id. “A substantial
defense is one that might have made a difference in the outcome of the trial.” People v Chapo,
283 Mich App 360, 371; 770 NW2d 68 (2009) (citation omitted).

        Defendant has not made an offer of proof regarding the substance of any favorable
testimony that a defense expert could have offered. In addition, assuming such video evidence
existed, defendant has not explained why the defense needed an expert investigator to obtain it.
Further, defendant admitted at trial that he shot Wilson which occurred at his house.
Defendant’s mere speculation that an expert could have provided unspecified favorable
testimony is insufficient to show that defense counsel’s failure to call an expert was objectively
unreasonable, or that a reasonable probability exists that the outcome of trial would have been
different if an expert had been called. Payne, 285 Mich App at 190. Thus, defendant has not
overcome the strong presumption that defense counsel provided constitutionally effective
assistance.

        Defendant makes an additional cursory complaint that defense counsel should have
obtained an expert to analyze the evidence presented by the prosecution’s DNA expert. Again,
defendant does not provide any proper analysis, including the substance of any favorable
testimony that an expert on DNA analysis could have offered. Defendant improperly fails to do
more than merely announce his position and leave it to this Court to discover and rationalize the
basis for his claims. Kelly, 231 Mich App at 640-641. Defendant, therefore, abandoned this
claim of ineffective assistance of counsel. McPherson, 263 Mich App at 136.

                   C. FAILURE TO CHALLENGE THE CAUSE OF DEATH

        In his last ineffective-assistance claim, defendant argues that defense counsel provided
ineffective assistance by failing to adequately investigate and rebut the medical examiner’s
conclusion regarding Wilson’s cause of death and for failing to adequately prepare an expert
witness for trial. Preliminarily, the defense did not call any expert witnesses; therefore, defense
counsel cannot be deemed ineffective for failing to adequately prepare a nonexistent witness.
Regarding the cause of death, the parties stipulated to the autopsy report prepared by the medical
examiner. Defendant does not identify any factual or legal ground on which defense counsel
could have successfully challenged the cause of death. In fact, defendant does not even discuss
the medical examiner’s findings. Defendant has not demonstrated a cognizable basis for
challenging the cause of death. Consequently, this claim of ineffective assistance of counsel
cannot succeed. Kelly, 231 Mich App at 640-641; McPherson, 263 Mich App at 136.

       Affirmed.

                                                            /s/ James Robert Redford
                                                            /s/ Jane E. Markey
                                                            /s/ Kirsten Frank Kelly




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