                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 10, 2016
              Plaintiff-Appellee,

v                                                                  No. 325732
                                                                   Wayne Circuit Court
ANTHONY TONY ROGERS,                                               LC No. 14-007704-FH

              Defendant-Appellant.


Before: MURPHY, P.J., and CAVANAGH and RONAYNE KRAUSE, JJ.

PER CURIAM.

       Defendant appeals as of right his bench trial convictions of felon in possession of a
firearm, MCL 750.224f, three counts of felonious assault, MCL 750.82, possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b, and reckless use of a
firearm, MCL 752.863a. We affirm.

        On August 24, 2014, defendant went to the home of Jacqueline Davis with a loaded gun.
Davis is the sister of Lakiesha Cross, the mother of defendant’s four children. Defendant was
intoxicated and agitated because he believed Lakiesha was cheating on him. He threatened to
shoot Lakiesha and to shoot up Davis’s home. After Lakiesha and her mother, Patricia Cross,
arrived at Davis’s house, Lakiesha began to prepare food while defendant sat at the kitchen table
with Davis and Davis’s friend, Henry Martin. At some point defendant became agitated and
pointed his gun at Martin. Davis stood in between defendant and Martin, and defendant then
pointed the gun at everyone in the home. Lakiesha took her child and ran upstairs. Defendant
began to chase Lakiesha up the stairs and Davis followed him. Martin then went outside and
called the police. When Martin went back into the house, he saw Davis and defendant fighting
over defendant’s gun. Defendant wrestled the gun away from Davis, ran outside, and fired
multiple shots in the air. Defendant then began piling up bricks outside of the house and
threatened to throw them if Lakiesha did not come outside. After Martin exited the home,
defendant followed him down the sidewalk, threatening to shoot him. Police eventually arrived
and apprehended defendant. At trial, defendant denied being in possession of a gun, pointing a
gun at anyone, or firing a gun.

       On appeal, defendant argues that none of his convictions were supported by sufficient
evidence. We disagree.



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       This Court reviews de novo a claim of insufficient evidence. People v Ericksen, 288
Mich App 192, 195; 793 NW2d 120 (2010). We consider the evidence presented in the light
most favorable to the prosecution and determine whether a rational trier of fact could have found,
including through reasonable inferences from the evidence, that the essential elements of the
crime were proven beyond a reasonable doubt. People v Hutner, 209 Mich App 280, 282; 530
NW2d 174 (1995).

        First, we turn to defendant’s felon in possession of a firearm conviction. At trial,
defendant stipulated that he was ineligible to possess a firearm. On appeal, he only argues that
the evidence was insufficient to establish that he possessed a gun. However, Davis, Martin, and
Patricia all testified that defendant had a gun. While the testimony of Lakiesha and Davis was
inconsistent at times, the testimony of Martin and Patricia was consistent and the trial court
found Martin to be especially credible. Therefore, there was sufficient evidence to support
defendant’s felon in possession of a firearm conviction.

        Second, we turn to defendant’s felonious assault convictions. “The elements of felonious
assault are (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 Avant, 235 Mich App
499, 505; 597 NW2d 864 (1999). According to the testimony of Davis, Martin, and Patricia,
defendant pointed a gun at everybody in the house, threatened everyone in the house, pointed the
gun at Martin, and went outside and fired the gun in the air. Lakiesha also testified that
defendant had a gun, had threatened to kill her, and that he went outside and fired the gun in the
air. Defendant’s intent to injure or place Davis, Martin, and Lakiesha in apprehension of an
immediate battery can clearly be inferred from his actions. People v Jory, 443 Mich 403, 419;
505 NW2d 228 (1993) (“Intent generally may be inferred from the facts and circumstances of a
case.”). Therefore, there was sufficient evidence to support defendant’s felonious assault
convictions.

        Third, we turn to defendant’s felony-firearm conviction. “The elements of felony-firearm
are that the defendant possessed a firearm during the commission of, or the attempt to commit, a
felony.” Avant, 235 Mich at 505. Again, the evidence included that defendant possessed a black
.25 caliber pistol when he was assaulting Davis, Martin, and Lakiesha. Martin, Patricia, and
Davis all testified that defendant stood up in the kitchen and pointed the weapon first at Martin
and then at everyone else in the room. Although defendant testified that he was never in
possession of a weapon, the trial court was entitled to believe the testimony of the other
witnesses over his testimony. See People v McGhee, 268 Mich App 600, 624; 709 NW2d 595
(2005). Thus, defendant’s felony-firearm conviction was supported by sufficient evidence.

         And fourth, we turn to defendant’s reckless use of a firearm conviction. MCL 752.863a
provides: “Any person who shall recklessly or heedlessly or wilfully or wantonly use, carry,
handle or discharge any firearm without due caution and circumspection for the rights, safety or
property of others shall be guilty of a misdemeanor.” Testimony from Martin and Patricia
established that, after pointing his gun directly at Martin, defendant pointed the gun at everyone
in the home. There was also testimony that defendant ran out of the home and fired multiple
gunshots in the air. Therefore, there was sufficient evidence to support defendant’s reckless use
of a firearm conviction.


                                                -2-
        In his Standard 4 brief, defendant argues that the trial court’s verdict was inconsistent and
illogical. Defendant notes that the trial court found Lakiesha’s testimony to be incredible but
nevertheless found him guilty on all counts. Defendant argues that this constituted an
inconsistent verdict requiring reversal. This argument has no merit. While the trial court did
find that Lakiesha’s testimony was not credible, the court was presented with, and credited, the
testimony of other witnesses, including Martin, Davis, and Patricia. Furthermore, the court
found defendant’s own testimony to be harmful. Therefore, the trial court’s verdict was not
inconsistent with its findings.

        In his Standard 4 brief, defendant also argues that he was denied his right to the effective
assistance of counsel. We disagree. Our review is limited to errors apparent on the record
because a Ginther1 hearing was not held. See People v Riley, 468 Mich 135, 139; 659 NW2d
611 (2003).

       To succeed on a claim of ineffective assistance of counsel, a defendant must show that
his counsel’s performance fell below an objective standard of reasonableness and there is a
reasonable probability that, but for counsel’s error, the result would have been different. People
v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). “Effective assistance of counsel is
presumed, and the defendant bears a heavy burden of proving otherwise.” People v Solmonson,
261 Mich App 657, 663; 683 NW2d 761 (2004).

        Defendant first argues that his trial counsel was deficient because he failed to petition the
Wayne County Gun Board after defendant informed him that he did not possess a gun and the
gun board could have had his felon in possession of a firearm charge dismissed. Defendant is
mistaken regarding the role of the gun board. Pursuant to MCL 28.424, the board had the power
to reinstate an individual’s gun rights after they had been revoked following a felony conviction.
MCL 28.424(4), as amended by 2015 PA 3. However, at trial it was stipulated that defendant
was ineligible to possess a gun at the time of the crime. Therefore, even if counsel had
petitioned the gun board, defendant’s gun rights would not have been restored because he did not
meet the requirements for restoration under MCL 28.424(4). Thus, this claim is without merit.

        Defendant also argues that the performance of his trial counsel was deficient because he
failed to move for a directed verdict. However, for the reasons discussed above, sufficient
evidence supported defendant’s convictions thus a motion for directed verdict would have been
futile. See Riley, 468 Mich at 142.

         Affirmed.



                                                              /s/ William B. Murphy
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Amy Ronayne Krause


1
    People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).


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