              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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED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. 338889
                                                                    Wayne Circuit Court
JAMAR WALKER,                                                       LC No. 16-002600-01-FC

                 Defendant-Appellant.


Before: JANSEN, P.J., and BECKERING and O’BRIEN, JJ.

PER CURIAM.

        Defendant appeals by right his jury convictions of assault with intent to do great bodily
harm less than murder (AWIGBH), MCL 750.84(1)(a); assault with a dangerous weapon without
intending to commit murder or inflict great bodily harm less than murder (felonious assault),
MCL 750.82; carrying a concealed pistol (CCW), MCL 750.227(2); carrying or possessing a
firearm while ineligible to do so (felon-in-possession), MCL 750.224f(1); and carrying or
possessing a firearm during the commission of a felony (felony-firearm), MCL 750.227b(1).1
The trial court sentenced defendant as a fourth-offense habitual offender, see MCL 769.12, to 2
years’ imprisonment for his felony-firearm conviction, 6 to 15 years’ imprisonment for his
AWIGBH conviction, and 2 to 15 years’ imprisonment for each of his remaining convictions.

        Defendant’s convictions arise from his participation in a bar fight. Testimony at trial
showed that he drew a handgun and shot another patron, Daniel Shelton. On appeal, defendant
raises several claims of error. We conclude that none of his claims of error warrant a new trial or
resentencing, but we agree that his conviction for felonious assault must be vacated. For the
reasons explained in this opinion, we vacate defendant’s conviction and sentence for felonious
assault, but affirm in all other respects.




1
    The jury found Defendant not guilty of assault with intent to commit murder, MCL 750.83.
                      I. INEFFECTIVE ASSISTANCE: IMPEACHMENT

                                 A. STANDARD OF REVIEW

        Defendant first argues that his trial counsel should have impeached one of the witnesses
against him, Antoine Shelton, with Antoine’s prior conviction of breaking and entering with the
intent to commit larceny. Because the trial court did not hold an evidentiary hearing on this
claim of error, there are no factual findings to which this Court must defer, and this Court’s
review is for mistakes apparent on the record. People v Gioglio (On Remand), 296 Mich App
12, 20; 815 NW2d 589 (2012), remanded for resentencing 493 Mich 864 (2012). This Court
reviews de novo whether defense counsel provided ineffective assistance. Id. at 19-20.

                                         B. ANALYSIS

        “To establish a claim of ineffective assistance of counsel, the defendant must show that
‘counsel’s representation fell below an objective standard of reasonableness’ under prevailing
professional norms and that there is a ‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’ ” Gioglio, 296
Mich App at 22, quoting Strickland v Washington, 466 US 668, 688, 694; 104 S Ct 2052; 80 L
Ed 2d 674 (1984). Under the first prong, defendant must identify those acts or omissions that he
contends were not the result of reasonable professional judgment. Gioglio, 296 Mich App at 22.
The reviewing court must then determine whether the identified acts or omissions were outside
the wide range of professionally competent assistance under the totality of the circumstances. Id.

        On appeal, defendant presented evidence that suggests that Antoine had, in fact, been
convicted of a theft offense that might fall within the parameters stated under MRE 609(a)(2).
But the evidence defendant presents is not part of the lower court record, and this Court normally
does not permit a party to expand the record on appeal. See People v Nix, 301 Mich App 195,
203; 836 NW2d 224 (2013). Thus, defendant has not established the factual predicate of his
claim—namely, that Antoine actually had a prior conviction with which he could have been
impeached. See People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001) (explaining that
“the defendant necessarily bears the burden of establishing the factual predicate for his claim” of
ineffective assistance). It is also not clear that Antoine’s prior conviction—if applicable—“has
significant probative value on the issue of credibility,” as required to be admissible under MRE
609(a)(2)(B). In any event, assuming that Antoine’s prior conviction was admissible
impeachment evidence and that it was objectively unreasonable for defense counsel to not
present this evidence, defendant cannot establish that he was prejudiced by defense counsel’s
performance.

       As this Court has explained:

              [I]t is not enough that the defendant showed that the act or omission had
       some conceivable effect on the outcome of the proceeding. Rather, the defendant
       must show that there is a reasonable probability that the outcome would have
       been different in the absence of the deficient performance. A reasonable
       probability is a probability sufficient to undermine confidence in the outcome.
                                                -2-
       Further, this determination must be made in consideration of the totality of the
       evidence presented to the jury and keeping in mind that some errors will have had
       a pervasive effect on the inferences to be drawn from the evidence, altering the
       entire evidentiary picture, and some will have had an isolated, trivial effect.
       [Gioglio, 296 Mich App at 23 (quotation marks and citations omitted).]

        Defendant cannot establish that defense counsel’s failure to impeach Antoine with
evidence of a prior conviction would have affected the outcome at trial because defense counsel
sufficiently brought Antoine’s credibility—as well as the credibility of Daniel and Andrew
Shelton, who was Antoine’s brother and the prosecution’s third witness—into question. Defense
counsel vigorously cross-examined Antoine. He elicited testimony that the situation at the bar
was confused and chaotic. He got Antoine to admit that he left Daniel, his cousin, bleeding on
the floor and avoided contact with the police officers after the shooting. He also examined him
about his motive to mislead the jury and the fact that he had the opportunity to discuss his
testimony with Daniel and Andrew, who were the prosecution’s only two other witnesses present
during the altercation. Defense counsel further attacked Antoine’s credibility in his closing
argument by suggesting to the jury that he did not really know what happened and reiterating that
he may have coordinated his testimony with Daniel and Andrew. Defense counsel also focused
heavily on Daniel’s lack of credibility, including Daniel’s testimony that he was the initial
aggressor in the altercation. In short, defense counsel tried to emphasize the evidence that
Daniel provoked a fight and that the scene was so chaotic that it was simply not credible that
Antoine or Andrew knew who shot Daniel, and that they only identified defendant because
Daniel wanted them to do so. Thus, the record is clear that defense counsel sufficiently brought
Antoine’s credibility into question, and we are unpersuaded that the additional impeachment
evidence of Antoine’s prior conviction would have affected the outcome of these proceedings.

         We further note that the evidence strongly supported defendant’s guilt. Although defense
counsel argued that Daniel, Andrew, and Antoine coordinated their testimony, the record shows
that Andrew and Antoine differed in significant respects from Daniel. The differences suggested
that Daniel was trying to mitigate his role in precipitating a barroom brawl. The differences also
suggested that Andrew and Antoine had not discussed their testimony with each other or Daniel.
For example, although Andrew agreed that Antoine hit someone with a pool stick, he thought
Antoine hit defendant. Antoine said that he hit one of defendant’s companions. Nevertheless,
they all agreed on certain key points. They all agreed that defendant was armed with a handgun.
They also agreed that Daniel was fighting with defendant and that they heard multiple shots—
albeit in different order. Finally, they agreed that Daniel ended up shot.

        The blood evidence also corroborated their testimony. The evidence of a blood trail was
consistent with Daniel’s testimony about how he moved through the bar during the course of the
struggle with defendant, was shot, hid behind the bar, and then came to lay down in the middle
of the floor. It was also consistent with the testimony that Andrew was struck in the head and
bled near the bar stools by the pool tables. The eye witnesses’ testimony, when considered with
the blood evidence, suggested that defendant was armed and shot Daniel during the struggle. In
light of this evidence, it cannot be said that there was a reasonable probability that introduction
of impeachment evidence on one of the three witnesses to the altercation would have affected the
outcome of this case.


                                                -3-
                                  II. OFFENSE VARIABLE 3

                                 A. STANDARD OF REVIEW

        Defendant next argues that the trial court erred when it assigned 25 points under Offense
Variable (OV) 3 of the sentencing guidelines because, according to defendant, there was no
evidence that Daniel suffered a life-threatening injury. This Court reviews for clear error a trial
court’s findings in support of a particular score under the sentencing guidelines, but it reviews de
novo whether the trial court properly interpreted and applied the sentencing guidelines to the
findings. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).

                                         B. ANALYSIS

        Although the sentencing guidelines are now advisory, trial courts must still properly
score the guidelines by assessing the highest number of points possible under the facts for all
offense variables. See People v Lockridge, 498 Mich 358, 392 n 28; 870 NW2d 502 (2015).
Under MCL 777.33(1)(c), the trial court must assign 25 points under OV 3 if it finds that “[l]ife
threatening or permanent incapacitating injury occurred to a victim” and no victim was killed.

         Here, there was significant evidence from which the trial court could have found that
Daniel suffered a life-threatening injury. Daniel testified that he was shot in the abdomen.
Although he initially fled and hid, he left a blood trail and eventually came to lay down on the
floor until emergency personnel arrived. He testified that he had to have two surgeries to correct
the damage and that he was hospitalized for two weeks. Photos from the scene showed Daniel’s
blood loss, and the prosecutor admitted Daniel’s medical records at trial. This evidence
sufficiently demonstrated that Daniel suffered an injury that threatened his life in the absence of
medical intervention. It was unnecessary to have medical testimony to prove that the injuries
were life threatening. See People v McCuller, 479 Mich 672, 697 & n 19; 739 NW2d 563
(2007) (explaining that the severity of the injuries alone was sufficient to conclude that they were
life threatening and noting that the statute does not require medical testimony). Based on this
evidence, the trial court did not clearly err when it found that Daniel suffered a life threatening
injury, see Hardy, 494 Mich at 438, and assigned 25 points under OV 3.

                                   III. STANDARD 4 BRIEF

      Defendant has also raised several claims of error in a brief that he submitted under
Administrative Order No. 2004-6, Standard 4, 471 Mich c, cii (2004).

                            A. PROSECUTORIAL MISCONDUCT

       Defendant claims that the prosecutor engaged in misconduct by eliciting perjured
testimony from Daniel. He also claims that the prosecutor improperly appealed to the jury’s
sympathy for the victim. To preserve a claim that the prosecution wrongfully relied on perjured
testimony at trial, the defendant must raise the issue before the trial court. See People v Bass,
317 Mich App 241, 272; 893 NW2d 140 (2016). Defendant did not object to the conduct about
which he now complains. Similarly, to preserve a claim of prosecutorial misconduct, the

                                                -4-
defendant must object to the conduct at trial, see People v Cain, 498 Mich 108, 114-115; 869
NW2d 829 (2015), and defendant did not object to the prosecutor’s failure to correct Daniel’s
testimony, nor did he object to the prosecutor’s closing argument. Therefore, these claims of
error are unpreserved. See id.

        This Court reviews unpreserved claims of error for plain error affecting the defendant’s
substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). In order to
establish a plain error that warrants relief, the defendant must show that there was a plain or
obvious error and that the error affected the outcome of the lower court proceedings. Id.

         A prosecutor violates a defendant’s right to due process of law when he or she obtains a
conviction through the knowing use of perjured testimony. People v Aceval, 282 Mich App 379,
389; 764 NW2d 285 (2009). The focus is on the fairness of the trial and not the culpability of
the prosecutor or the trial court. Id. at 390. When the prosecutor knows that a witness has
testified falsely, the prosecutor has an affirmative duty to correct the testimony. People v Smith,
498 Mich 466, 475-476; 870 NW2d 299 (2015).

        Defendant argues on appeal that Daniel must have been lying—and that the prosecutor
must have known that Daniel was lying—because Daniel stated that he had been shot twice even
though, in defendant’s view, the medical evidence showed otherwise. Defendant’s interpretation
of the medical records and his disagreement with Daniel’s recollection does not establish that
Daniel committed perjury. Initially, it is not clear that the medical records actually established
that Daniel suffered only one gunshot injury. Defense counsel asserted outside the presence of
the jury that the medical records, in his view, established that Daniel suffered two injures—one
to the abdomen and one to the buttocks—but he opined that the bullet might have been a
“through-and-through,” and so the injuries might have been caused by a single gunshot. For that
reason, he asked the trial court to reconsider its earlier denial of his motion for a directed verdict.
The court concluded that whether both injuries were from a single gunshot, as suggested by
defense counsel, or whether they were from two separate gunshots, as Daniel testified, was a
factual dispute for the jury.

        But even assuming that Daniel had only been shot once, Daniel might merely have been
mistaken about the number of times that he was struck. See People v Lively, 470 Mich 248, 253-
254; 680 NW2d 878 (2004) (providing that perjury is a willfully false statement). Further, a
prosecutor has no obligation to disbelieve his or her own witnesses. See People v Lester, 232
Mich App 262, 278-279; 591 NW2d 267 (1998), overruled not in relevant part People v
Chenault, 495 Mich 142; 845 NW2d 731 (2014). The prosecutor could reasonably conclude
that, under the totality of the circumstances, Daniel was telling the truth to the best of his ability.
And the prosecutor could proceed on that assumption without violating due process so long as
she did not conceal the conflicting evidence from the jury. See People v Parker, 230 Mich App
677, 690; 584 NW2d 753 (1998). Thus, especially given the differing interpretations of the
medical evidence, defendant has failed to establish that the prosecutor knowingly elicited
perjured testimony or committed misconduct by not correcting Daniel’s testimony. See Aceval,
282 Mich App at 389.




                                                 -5-
      Defendant additionally argues that the prosecutor made an improper appeal to sympathize
with Daniel by telling the jury: “It’s snitches get stitches. So, he’s got to sit on this stand now,
come and talk in front of the person that pulled out a gun and shot him twice . . . .”

        A prosecutor’s role in our criminal justice system is not merely to convict; it is to seek
justice. People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). A prosecutor may
jeopardize the defendant’s right to a fair trial by interjecting issues broader than the defendant’s
guilt or innocence, id., so it is generally improper for a prosecutor to try and arouse the prejudice
of jurors against the defendant, People v Bahoda, 448 Mich 261, 266; 531 NW2d 659 (1995), or
appeal to the jury’s sympathy for the victim, People v Dalessandro, 165 Mich App 569, 581; 419
NW2d 609 (1988).

        In determining whether a prosecutor’s remarks rose to the level of prosecutorial
misconduct, this Court must review the remarks in context. See Bahoda, 448 Mich at 266-267.
And when read in context, the prosecutor’s reference to “snitches” and her statement about
Daniel’s demeanor on the stand during rebuttal were not improper in light of defense counsel’s
arguments during closing. See Dobek, 274 Mich App at 64 (noting that a prosecutor’s comments
must be evaluated in light of defense arguments and stating that a comment that might be
improper in one context might be proper if made in answer to issues raised by defense counsel).
The prosecutor made the contested remarks during rebuttal after defense counsel vigorously
argued that Daniel, Antoine, and Andrew could not be believed. The prosecutor’s remarks were
in response to the contentions that Daniel was trying to put a “case” on defendant, and that
Antoine and Andrew were not credible because they did not go out of their way to cooperate
with police officers. The prosecutor suggested that their lack of cooperation was understandable
given the culture of silence with which they were raised:

               Crowded bar, Ms. Livingston. Why don’t you have fifteen people sitting
       in this chair [the witness chair]? The family of Daniel Shelton, as they seen him
       almost die that night, didn’t even want to talk to the police. They tried to avoid
       Detective Mayes as much as they could. Do you think that felt good for `em? Do
       you think they were happy about that? No.

               But as we go with our sayings that actions speak louder than words,
       pictures are worth a thousand words, there’s another saying. It’s snitches get
       stitches. So, he’s got to sit on this stand now, come and talk in front of all ya’ll
       and tell you what happened in front of the person that pulled out a gun and shot
       him twice, to where they’re beating people in the face. He said: Oh, well,
       Andrew Shelton didn’t say in his statement that he had gotten pistol whipped.
       Where were you standing, sir? He’s by the bar stools. I got hit so hard, I had to
       wipe the blood from my face. Were you bleeding? Yes, sir. Where’s the blood?
       You didn’t write it down. Can’t be sure. Can’t be sure.

               His own family didn’t want to come in here and testify because they aren’t
       raised that way. He didn’t want to pick up the phone and call the police and say,
       hey, the guy who just, you know, robbed me six months ago, he’s in the bar right
       now. Could you please send some police cars down here? Thank you. No.


                                                -6-
       That’s not how they do things. That’s not how this works. They tried to just
       squash it. . . .

        At trial, Antoine testified on redirect examination that he did not go to the police
department with his information because he “wasn’t raised like to talk to the police.” Therefore,
there was evidence from which the prosecutor could argue that the witnesses’ evasive
interactions with police officers might best be explained by their background rather than because
they were not telling the truth. See Dobek, 274 Mich App at 66 (recognizing that courts afford
wide latitude to prosecutors to argue the facts and the inferences to be drawn from the evidence).
The comment about “snitches” and “stitches” can best be described as a colorful reminder of the
culture within which the witnesses were raised. The prosecutor was not required to state her
arguments in the blandest possible terms. See id.; see also People v Allen, 351 Mich 535, 544;
88 NW2d 433 (1958) (“Criminal trials are not basket luncheons, and we seem faintly to recall
that in our experience opposing lawyers rarely if ever pelted each other with rose petals.”). The
prosecutor’s remarks were proper commentary on the evidence stated in response to the
arguments by defense counsel. See Dobek, 274 Mich App at 64. Defendant has not established
that the prosecutor engaged in conduct that amounted to plain error.

                                   B. DOUBLE JEOPARDY

        Defendant next argues that it was a violation of the Double Jeopardy Clause to punish
him for both felonious assault and AWIGBH arising from the same act. In a recent decision
from this Court, a majority recognized that our Supreme Court has rejected the contention that it
is a violation of the prohibition against being placed in double jeopardy for a jury to convict a
defendant of both felonious assault under MCL 750.82 and AWIGBH under MCL 750.84. See
People v McKewen, ___ Mich App ___, ___; ___ NW2d ___ (2018) (Docket No. 339068); slip
op at 4, citing People v Strawther, 480 Mich 900; 739 NW2d 82 (2007), and People v Wilson,
496 Mich 91, 102; 852 NW2d 134 (2014), abrogated on other grounds by Bravo-Fernandez v
United States, 137 S Ct 352 (2016). Nevertheless, the majority held that a jury cannot convict a
defendant of both offenses for the same conduct because the two offenses are mutually
exclusive. The Court explained that, in order to be guilty of AWIGBH, a jury must find that the
defendant had the intent to do great bodily harm, but the jury would have to simultaneously find
that the defendant did not intend to do great bodily harm to find the defendant guilty of felonious
assault. See McKewen, ___ Mich App at ___; slip op at 4-5. The Court held that the proper
solution for a trial court confronted with a verdict of guilty on both offenses arising from the
same conduct was to enter judgment of conviction on the AWIGBH charge, but not felonious
assault. Id.; slip op at 5.

        Although defendant framed this claim of error as involving double jeopardy, he also
challenged whether a jury could find both intents. Therefore, we conclude that he sufficiently
raised the issue to apply the decision in McKewen. Although the trial court did not have the
benefit of McKewen, we conclude that it was plain error for it to allow the jury to convict
defendant of both AWIGBH and felonious assault, and that the error prejudiced defendant. See
Carines, 460 Mich at 763. Consequently, we vacate defendant’s conviction of felonious assault
and remand this case to the trial court for the ministerial task of correcting the judgment of
sentence as stated in McKewen, ___ Mich App at ___; slip op at 7. Vacating this conviction does
not affect defendant’s minimum guidelines range, so resentencing is not required.

                                                -7-
                                C. OTHER ACTS TESTIMONY

        Defendant next complains that defense counsel’s response to the prosecution’s notice of
intent to admit evidence that defendant robbed Daniel at gunpoint months before the altercation
in the bar was inadequate. Defendant contends that defense counsel’s response was deficient
because he did not respond to the prosecutor’s notice in writing. Defendant cites no authority for
the proposition that defense counsel had to respond in writing, nor does he offer any argument as
to how defense counsel’s approach prejudiced his trial. By failing to offer any meaningful
discussion of the facts and law, defendant has abandoned this claim of error. See People v
Martin, 271 Mich App 280, 315; 721 NW2d 815 (2006).

        In any event, as our Supreme Court has stated, other-acts evidence is generally
admissible unless offered solely to prove action in conformity with character. See People v
VanderVliet, 444 Mich 52, 62-64; 508 NW2d 114 (1993); see also People v Jackson, 498 Mich
246, 276; 869 NW2d 253 (2015) (“As we have made clear, however, MRE 404(b) does not
prohibit all other-acts evidence ‘that may . . . give rise to an inference about the defendant’s
character,’ but only that which is ‘relevant solely to the defendant’s character or criminal
propensity.’ ”) (Citation omitted.)

        Here, the prosecutor stated that she intended to offer the other-acts testimony for several
reasons other than to prove action in conformity with character. She stated that the testimony
would provide essential context that would allow the jury to understand Daniel’s testimony. The
evidence would establish how it was that Daniel recognized defendant when he entered the bar,
why Daniel feared defendant, and why defendant might have decided to approach Daniel in the
bar. The proposed other-acts testimony was relevant and otherwise admissible for these
purposes under MRE 401 and MRE 402. See VanderVliet, 444 Mich at 74-75. The mere fact
that the evidence implicated defendant’s character did not make the evidence inadmissible under
MRE 403. Indeed, the importance of the testimony to prove matters in contention outweighed
the danger that the jury might make an improper inference, and a jury instruction would plainly
be adequate to ensure that the jury appropriately used the evidence. See People v Roper, 286
Mich App 77, 106; 777 NW2d 483 (2009). Because the other-acts evidence was admissible,
defendant cannot show that his trial counsel’s failure to file a written response or argue more
vigorously for the preclusion of the other-acts testimony prejudiced his trial. See People v
Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (recognizing that defense counsel does
not have an obligation to make a meritless objection). Defendant has thus failed to show that
defense counsel’s response to the prosecutor’s notice was deficient and prejudiced his trial. See
Gioglio, 296 Mich App at 19-20.

                                   D. SUGGESTIVE PHOTO

        Defendant also argues in an unpreserved claim that Daniel’s identification of him at trial
was tainted by Daniel’s earlier exposure to an unduly suggestive photo that Daniel obtained from
his cousin. However, the constitutional principles that defendant discusses in his brief for this
issue apply to identifications that were made by a witness after an impermissibly suggestive
lineup that was conducted by police officers. In the absence of state action, a defendant does not
have a due-process right to have a court review the reliability of the identification. See Perry v
New Hampshire, 565 US 228, 245; 132 S Ct 716; 181 L Ed 2d 694 (2012) (“The fallibility of

                                                -8-
eyewitness evidence does not, without the taint of improper state conduct, warrant a due process
rule requiring a trial court to screen such evidence for reliability before allowing the jury to
assess its creditworthiness.”). Rather, the weaknesses in the identification are a matter of weight
and credibility to be tested through the adversarial process. See id. at 245-247. It is undisputed
that there was no state action involved. Therefore, there was no plain error. See Carines, 460
Mich at 763.

       Defendant also briefly states that Daniel’s identification of him was also tainted by an
impermissibly suggestive confrontation at the preliminary examination. However, he has
abandoned that claim—to the extent that it is an independent claim of error—by failing to
provide any context or meaningful discussion of the issue. See Martin, 271 Mich App at 315.

                                 E. COMPETENCY HEARING

       Defendant also claims that defense counsel provided ineffective assistance by failing to
request a competency examination.

          A defendant is presumed to be competent and will only be determined to be incompetent
if it is found that, because of his or her mental condition, he or she is incapable of understanding
the nature and object of the proceedings against him or her, or of assisting in his or her defense in
a rational manner. See MCL 330.2020(1).

        Defendant claims that defense counsel knew about his mental health history through his
presentence investigation report and his status at the jail, and he complains that defense counsel
failed to request his mental health records. Yet defendant does not state that he was actually
incompetent at any point in the lower court proceedings. And even addressing defendant’s
arguments, defense counsel does not have to assume that his or her client should have a
competency hearing simply because his or her client has a history of mental illness. Our caselaw
is clear that, instead, there must be some indicia of the need for a competency hearing. See
People v Mette, 243 Mich App 318, 331-332 & n 8; 621 NW2d 713 (2000). In the absence of
evidence to establish that defendant’s trial counsel should have been aware that defendant might
not have been competent to stand trial, defendant cannot establish his claim of ineffective
assistance. See id. at 332 n 8. Rather, this Court must presume that defense counsel did not
request a competency hearing because it appeared to him that defendant was capable of
understanding the proceedings and participating in his own defense. See Gioglio, 296 Mich App
at 22. Therefore, defendant has not shown that his trial counsel’s failure to request a competency
hearing amounted to ineffective assistance. See id. at 19-20.

                                     F. IMPARTIAL JUDGE

        Finally, defendant argues that the trial court deprived him of a fair trial by exhibiting
favoritism and limiting defense counsel’s cross-examination of Daniel. Defendant did not
preserve this claim of error by raising the issue before the trial court. See People v Paquette, 214
Mich App 336, 340; 543 NW2d 342 (1995). He also did not object to the trial court’s comments
or its decision to limit the line of questioning. Therefore, this claim of error is unpreserved. See
id.



                                                 -9-
       This Court reviews unpreserved claims of error for plain error affecting the defendant’s
substantial rights. Carines, 460 Mich at 763.

       A trial judge’s conduct at a jury trial can interfere with the defendant’s right to a fair and
impartial trial. See Stevens, 498 Mich at 164. The test for judicial misconduct that deprives a
defendant of a fair trial depends on whether the judge’s conduct pierced the veil of judicial
impartiality:

               A trial judge’s conduct deprives a party of a fair trial if the conduct pierces
       the veil of judicial impartiality. A judge’s conduct pierces this veil and violates
       the constitutional guarantee of a fair trial when, considering the totality of the
       circumstances, it is reasonably likely that the judge’s conduct improperly
       influenced the jury by creating the appearance of advocacy or partiality against a
       party. In evaluating the totality of the circumstances, the reviewing court should
       inquire into a variety of factors including, but not limited to, the nature of the trial
       judge’s conduct, the tone and demeanor of the judge, the scope of the judicial
       conduct in the context of the length and complexity of the trial and issues therein,
       the extent to which the judge’s conduct was directed at one side more than the
       other, and the presence of any curative instructions, either at the time of an
       inappropriate occurrence or at the end of trial. [Id.]

       On appeal, defendant cites to four pages of defense counsel’s cross-examination of
Daniel in support of his claim that the trial court was biased and made improper rulings.
However, the court’s rulings and comments cannot be read in isolation, and instead must be
understood in light of defense counsel’s prior questioning, which began approximately 40 pages
before the comments at issue. See id. at 171-172 (stating that the inquiry into judicial
misconduct is fact specific and courts must consider the comments in context). When read in
context, we conclude that the trial court’s comments did not pierce the veil of judicial
impartiality.

       From the very start, defense counsel vigorously challenged Daniel’s credibility, and his
questioning frequently resulted in argumentative exchanges. The trial court had to remind
Daniel to just answer defense counsel’s questions on some occasions and sustained objections to
the nature of defense counsel’s questioning on other occasions. Defense counsel’s questioning
made it clear that he did not believe Daniel when he testified that he saw that defendant had a
gun in his pocket before the fight, and did not believe his identification testimony.

        After approximately 40 pages of contentious questioning, defense counsel again began to
ask Daniel questions about the sequence of events that Daniel had already answered on direct
examination. Defense counsel, however, couched his question in terms suggesting incredulity:
“So, then you’re saying that you let go of him, is that correct? During this fight.” At that point,
the trial court stated that it would not allow that type of questioning to “go on again.” When
defense counsel began posing questions that, although not necessarily covered by defense
counsel during cross-examination, had been covered on direct examination, the trial court asked
defense counsel to move on. But then after this exchange, the trial court allowed defense counsel
to question Daniel for some time more and did not prevent defense counsel from again
questioning Daniel about the circumstances under which he purportedly saw a gun.

                                                -10-
        On this record, defendant has not shown that the trial judge’s comments pierced the veil
of judicial impartiality. The judge’s comments were not intemperate and were directed to the
witness at some points and to defense counsel at others. It is evident from the record that there
was tension between the witness and defense counsel, and the trial judge’s comments were
intended to control the interrogation and ensure that defense counsel and the witness did not
inhibit the progress of the case. See Rose, 289 Mich App at 509. Nothing on this record
suggests that the jury might have inferred that the trial court favored the prosecution. See
Stevens, 498 Mich at 164.

       To the extent that the trial court might have erred by instructing defense counsel to move
on to a new line of questioning, that error was minor and did not prevent defense counsel from
continuing his interrogation of Daniel. Defense counsel had already thoroughly cross-examined
Daniel about the deficiencies in his version of events and, even though the trial court told
defense counsel to move on, it did not actually prevent defense counsel from continuing his
cross-examination. Defense counsel made it abundantly clear that it was the defense’s
contention that Daniel started the bar fight, and that Daniel was lying or mistaken about seeing
defendant with a gun. Defendant has not shown that the trial court’s decision to instruct defense
counsel to move to a new line of questioning prejudiced his defense. See Carines, 460 Mich at
763.

                                       IV. CONCLUSION

        Defendant cannot be convicted of both AWIGBH and felonious assault arising from the
same conduct. Therefore, we vacate the lesser conviction of felonious assault. Because
defendant did not identify any errors that otherwise warrant a new trial or resentencing, we
affirm his remaining convictions and sentences.

        Vacated in part, affirmed in part, and remanded to the trial court for the ministerial task
of correcting the judgment of sentence consistent with this opinion. This does not affect
defendant’s minimum guidelines range, so resentencing is not required. We do not retain
jurisdiction.



                                                            /s/ Kathleen Jansen
                                                            /s/ Colleen A. O’Brien




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