            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED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. 339258
                                                                    Wayne Circuit Court
JOHN EDWARD KIRK,                                                   LC No. 16-007400-01-FC

               Defendant-Appellant.


Before: CAVANAGH, P.J., and BORRELLO and REDFORD, JJ.

PER CURIAM.

       Defendant appeals as of right his bench trial convictions 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 25 to 50 years in
prison for the murder conviction, time served for the felon-in-possession conviction, and a
consecutive two-year term of imprisonment for the felony-firearm conviction. We affirm.

                                       I. BACKGROUND

         Defendant’s convictions arose from the fatal shooting of Jevonta Malone in Malone’s
Detroit home on July 19, 2016. The principal issue at trial was defendant’s identity as the
shooter. The prosecution presented evidence that, days before the shooting, defendant and
Malone exchanged hostile Facebook messages. On the day of the shooting, Elisha Perry, a
friend to both men, fell asleep while riding in defendant’s car. When she awoke to the sound of
gunfire, she found that defendant’s car was parked just down the street from Malone’s house and
defendant was not in the car. Defendant then rushed into the car, breathing heavily, and stated
that he “got that bitch-ass n-----.” Malone died in his backyard, having been shot 10 times.
After the shooting, defendant fled the state but police ultimately apprehended him in Indiana. At
trial, the defense argued that the prosecution witnesses were unreliable, that no physical evidence
linked defendant to the crime scene, and that defendant was misidentified.

                            II. SUFFICIENCY OF THE EVIDENCE
       Defendant first argues that the prosecution failed to present sufficient evidence to support
his convictions by failing to establish his identity. 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 sufficient evidence
supported a conviction, this Court must 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. Id. “The standard of review is deferential: a
reviewing court is required to draw all reasonable inferences and make credibility choices in
support of the [trier of fact’s] verdict.” Id. (quotation marks and citation omitted). “Further,
circumstantial evidence and reasonable inferences arising from that evidence can constitute
satisfactory proof of the elements of a crime.” Id. (quotation marks and citations omitted).

        Defendant does not challenge any of the specific elements of the offenses of which he
was convicted but only argues that the prosecution failed to prove his identity as the shooter.
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). Circumstantial evidence and reasonable inferences arising
from that evidence can support a conviction of a crime. People v Nowack, 462 Mich 392, 400;
614 NW2d 78 (2000) (citation omitted). “The credibility of identification testimony is a
question for the trier of fact that we do not resolve anew.” People v Davis, 241 Mich App 697,
700; 617 NW2d 381 (2000).

         Viewed in a light most favorable to the prosecution, the evidence supported the trial
court’s determination that the prosecution proved defendant’s identity as the person who shot
Malone. Evidence established that defendant and Malone exchanged hostile Facebook messages
in which defendant’s messages were threatening and indicated that he had a dispute with
Malone. Perry’s testimony established that defendant parked his car near Malone’s house and
returned to it after the shooting and essentially admitted to her that he shot Malone. Perry also
testified that defendant cautioned her not to say anything. In addition to Perry’s testimony, the
prosecution presented evidence of Perry’s and defendant’s presence within the vicinity of the
shooting. We hold that the circumstantial evidence presented by the prosecution provided a
reasonable basis upon which the trier of fact, in this case, the trial court, could rationally
conclude beyond a reasonable doubt that defendant shot Malone.

        Defendant argues further that the evidence was insufficient to sustain his convictions
because the prosecution presented no direct evidence that he was the person who shot Malone.
When evaluating the sufficiency of the 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. Nowack, 462 Mich at 400. We find no merit to defendant’s argument because
the prosecution established his guilt through circumstantial evidence. Moreover, to the extent
that defendant challenges the weight of the evidence rather than its sufficiency, we 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). We hold that the prosecution presented
sufficient evidence to convict defendant beyond a reasonable doubt.

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                                III. DENIAL OF DUE PROCESS

        Defendant also argues that he was denied his constitutional right to due process because
the prosecution failed to locate and produce a res gestae witness named Kenneth Salter who the
prosecution listed as a witness and had subpoenaed but failed to appear at the trial. If the
prosecution endorses a witness, it must exercise due diligence to produce the witness at trial.
MCL 767.40a; People v Eccles, 260 Mich App 379, 388; 677 NW2d 76 (2004). “The underlying
purpose of the statute is to provide notice to the accused of potential witnesses.” People v
Everett, 318 Mich App 511, 518; 899 NW2d 94 (2017). “If a prosecutor fails to produce a
witness who has not been properly excused, the trial court has discretion in fashioning a remedy
for the violation of MCL 767.40a, which may include a missing witness instruction.” Id. at 519.

        Although defendant requested the adverse inference instruction, M Crim JI 5.12, as a
result of Salter’s failure to appear, he did not argue that Salter’s failure to appear violated his
constitutional right to due process. Therefore, we review defendant’s unpreserved constitutional
claim for plain error affecting his substantial rights. People v Carines, 460 Mich 750, 763-764;
597 NW2d 130 (1999). Under the plain error rule, defendant bears the burden to prove: 1) an
error occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected
substantial rights, i.e., prejudiced defendant by affecting the outcome or seriously affected the
fairness, integrity, or public reputation of the judicial proceedings independent of defendant’s
innocence. Id. (citation omitted).

         In this case, after the prosecution rested, defense counsel informed the trial court that the
defense wanted to call Salter but had not been able to locate him. The prosecution informed the
trial court that it tried unsuccessfully to contact the witness for weeks. The trial court adjourned
the trial and instructed the prosecution to assist the defense in locating Salter. When trial
resumed more than a month later, Salter remained unavailable. Defense counsel requested that
the trial court give itself the adverse instruction on witness unavailability. The trial court granted
defendant’s request, over the prosecutor’s objection, and indicated that it would instruct itself as
defendant requested. The record does not establish that plain error occurred. Therefore,
defendant has failed to meet his burden. We hold that the trial court did not deny defendant his
right to due process.

                       IV. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant alternatively argues that trial counsel provided him ineffective assistance by
failing to investigate and locate Salter so that Salter could be called at 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). Defendant bears the burden of establishing ineffective assistance by showing that
(1) his counsel’s performance fell below an objective standard of reasonableness, and (2) there is
a reasonable probability that defense counsel’s performance prejudiced defendant because, but
for defense counsel’s defective performance, the result of the proceeding would have been
different. Id. at 80-81. Defendant must prove the factual predicate of his ineffective assistance
claim. People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014).

                                                 -3-
       “The failure to make an adequate investigation is ineffective assistance of counsel if it
undermines confidence in the trial’s outcome.” People v Russell, 297 Mich App 707, 716; 825
NW2d 623 (2012) (citation omitted). Similarly, defense counsel’s failure to a call a witness is
considered ineffective assistance only if it deprived 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).

        The record reflects that defense counsel knew of Salter and demanded his appearance at
trial but, despite the trial’s adjournment and the prosecution’s and defense counsel’s efforts to
locate Salter and hail him into court, Salter remained unavailable. Trial counsel requested that
the trial court, as the trier of fact, instruct itself in accordance with the adverse inference
instruction, which the court agreed to do. The record does not support defendant’s contention
that his counsel provided ineffective assistance. Defense counsel’s conduct did not fall below an
objective standard of reasonableness. Nothing in the record establishes that trial counsel could
have done anything more to produce Salter and the adverse inference instruction properly
remedied the inability of the prosecution to produce him as a witness. Everett, 318 Mich App at
519. Therefore, defendant is not entitled to a new trial on the basis of ineffective assistance of
counsel.

       Affirmed.

                                                            /s/ Mark J. Cavanagh
                                                            /s/ Stephen L. Borrello
                                                            /s/ James Robert Redford




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