             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PEOPLE OF THE STATE OF MICHIGAN,                                          UNPUBLISHED
                                                                          April 16, 2020
                Plaintiff-Appellee,

v                                                                         No. 346404
                                                                          Macomb Circuit Court
JOHN MATTHEW WAGNER,                                                      LC No. 2017-002325-FH

                Defendant-Appellant.


Before: SAWYER, P.J., and LETICA and REDFORD, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial convictions of assault with intent to do great
bodily harm less than murder, MCL 750.84, and unarmed robbery, MCL 750.530. The trial court
sentenced defendant as a third-offense habitual offender, MCL 769.11, to 160 to 240 months’
imprisonment for assault with intent to do great bodily harm, and to 171 to 360 months’
imprisonment for unarmed robbery. We affirm.

                                          I. BACKGROUND

        This case arises from injuries sustained by Julio Cesar Leyva-Nino from defendant’s
conduct at their friend, Joseph Serra’s home. Julio, Donny Locke, Sierra Stacey and defendant
spent an afternoon at Serra’s house swimming. Serra and his neighbor, Sal Napoltano, were also
present. After defendant, Julio, Locke, and Stacey changed into dry clothes and prepared to leave,
Julio gave defendant who had his phone in his pocket, “a shove or . . . a slight tackle” into the pool.
Defendant became angry and screamed that Julio needed to replace his phone. Julio apologized
to defendant and attempted to give defendant $60 or $70 despite having around $700 to $1000
cash in his wallet. Witnesses recalled differently Julio’s conduct but they testified that defendant
flipped Julio onto the ground, straddling him, punched him in the face a few times, and then
stomped Julio’s head.

        Hours after the incident someone dropped Julio at the hospital emergency room where
neurosurgeon Dr. Richard Veyna examined and treated him for a skull fracture and brain injury.
Dr. Veyna testified that the back of Julio’s skull fractured, his brain hit the front of his skull, shifted
significantly, and hemorrhaged in a life-threatening manner. Dr. Veyna performed emergency


                                                   -1-
surgery. Because of the injuries he sustained from the incident, Julio required physical,
occupational, and speech therapy and suffers from ongoing memory loss.

       The day after the incident, Detective Christopher Delor recovered Julio’s empty wallet.
When arrested, defendant had $938 in cash. Detective Delor interrogated defendant after reading
him his Miranda1 rights and upon defendant’s affirmation that he understood his rights. Defendant
denied that he kicked, punched, or intentionally hurt Julio. Defendant admitted that he took “a
couple hundred” bucks that had fallen on the ground. The jury convicted defendant of the charged
offenses. Defendant now appeals.

                                          II. ANALYSES

        Defendant argues that 1) the prosecution failed to produce sufficient evidence to convict
him of both charged offenses; 2) the trial court erred by admitting the recorded video of his
statements made during his custodial interrogation on the ground that he involuntarily waived his
Miranda rights; and 3) his trial counsel provided ineffective assistance by failing to convey a plea
deal to defendant and for failing to move to suppress the statements made in the interrogation
video. We disagree regarding all claims of error.

                             A. SUFFICIENCY OF THE EVIDENCE

        Defendant first argues that the prosecution failed to produce sufficient evidence of
defendant’s intent to do great bodily harm. In support of his claim of error, defendant asserts that
the assault lasted a short duration, and no one present at the scene, including Julio himself, believed
that Julio needed medical attention. Further, he relies on Dr. Julie Burnham’s opinion testimony
that Julio’s medical records were inconsistent with Serra’s and Napoltano’s accounts of the assault,
and that Julio’s brain injury could have been caused by a slip and fall. He contends that Dr.
Veyna’s testimony to the contrary was based on observations made when Julio’s condition had
worsened because of his own failure to seek treatment.

        We review de novo whether the prosecution presented sufficient evidence to convict
defendant. People v Harverson, 291 Mich App 171, 175-176; 804 NW2d 757 (2010). We review
the evidence “in a light most favorable to the prosecutor to determine whether any trier of fact
could find the essential elements of the crime were proven beyond a reasonable doubt.” People v
Reese, 491 Mich 127, 139; 815 NW2d 85 (2012) (quotation marks and citation omitted).
“Questions regarding the weight of the evidence and credibility of witnesses are for the jury, and
this Court must not interfere with that role even when reviewing the sufficiency of the evidence.”
People v Carll, 322 Mich App 690, 696; 915 NW2d 387 (2018) (citation omitted). “[A] reviewing
court is required to draw all reasonable inferences and make credibility choices in support of the
jury verdict.” Id. (citation omitted).

        “The elements of assault with intent to do great bodily harm less than murder are: (1) an
attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an
intent to do great bodily harm less than murder.” People v Brown, 267 Mich App 141, 147; 703


1
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


                                                 -2-
NW2d 230 (2005) (quotation marks and citations omitted, emphasis in original). “This Court has
defined the intent to do great bodily harm as an intent to do serious injury of an aggravated nature.”
Id. (quotation marks and citations omitted).

       Because of the difficulty in proving an actor’s intent, only minimal circumstantial
       evidence is necessary to show that a defendant had the requisite intent. Intent to
       cause serious harm can be inferred from the defendant’s actions, including the use
       of a dangerous weapon or the making of threats. Although actual injury to the
       victim is not an element of the crime, injuries suffered by the victim may also be
       indicative of a defendant’s intent. [People v Stevens, 306 Mich App 620, 629; 858
       NW2d 98 (2014) (citations omitted).]

        Defendant essentially argues that the prosecution failed to invalidate his theory that he
accidentally “fell on top” of Julio in the course of an insignificant scuffle. The prosecution,
however, “is bound to prove the elements of the crime beyond a reasonable doubt,” and “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.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000) (quotation
marks and citation omitted).

        At trial, Serra testified that he “will never forget” the sound of Julio’s head hitting the
cement when defendant “flipped [Julio] onto his back.” According to Serra, Julio was “thrown,”
he did not “trip” or “fall” or “get his legs tangled up.” Defendant, still “screaming,” “got over the
top of [Julio]” and punched him “a few” times “in the right side of his head, his face.” Defendant
then “curb stomp[ed]” Julio—he “raised [his shoe] high and slammed it down onto [Julio’s] face.”
Serra “didn’t want to go near [defendant]” because “[t]he look in his eyes was that he wanted to
kill.” Serra’s testimony alone sufficed to establish defendant’s intent to do serious injury of an
aggravated nature.

        Napoltano’s testimony, while differing from Serra’s on some details, also independently
sufficed to establish defendant’s intent to do great bodily harm. Napoltano disagreed with Serra
that Julio’s head hit the cement “on the initial flip.” He heard Julio’s head hit the cement when
defendant stomped, not when defendant “flipped” Julio. Napoltano testified that defendant
stomped on Julio’s head with “a hard stomp,” not “a little kick”—defendant had “his knee up [to
his] chest area” before bringing his foot down on Julio’s head.

        The nature of Julio’s injuries also served as evidence of defendant’s intent to do great
bodily harm. Stevens, 306 Mich App at 629. Dr. Veyna testified regarding Julio’s severe skull
and brain injury caused by trauma associated with his skull “hitting the pavement so hard, so it
was a pretty traumatic blunt force to the brain.” Julio’s CT scan showed that his brain had swollen
and shifted 13.6 millimeters. According to Dr. Veyna, a 13.6-millimeter shift is “big trouble” and
“life-threatening.” Dr. Veyna opined, based upon his 20 years of experience as a neurosurgeon,
that such a severe injury would not be caused by “just a slip and fall.”

         Although Dr. Burnham offered opinion testimony that differed from Dr. Veyna, the jury
was charged with deciding the weight such testimony deserved in light of the evidence presented
at trial. The record reflects that Dr. Burnham admitted that there was no testimony indicating that


                                                 -3-
defendant’s stomp hit Julio’s nose, as she had assumed. She agreed that the bone under Julio’s
eye would not necessarily be fractured by two or three punches. She also admitted that she based
her opinion, that neck injuries should have been present, on her erroneous belief that defendant
had placed his knee on Julio’s throat rather than his chest.

       The possibility that Julio’s delay in seeking treatment might have exacerbated his
symptoms does not undermine the evidence that established that he sustained severe injuries when
defendant assaulted him. Based on Serra’s, Napoltano’s, and Dr. Veyna’s testimonies, the jury
could reasonably find beyond a reasonable doubt that defendant assaulted Julio with the intent to
do him great bodily harm less than murder. Therefore, the prosecution presented sufficient
evidence of defendant’s guilt regarding that charged offense.

        Next, defendant argues that the prosecution failed to produce sufficient evidence of a
robbery because Julio agreed that defendant should be compensated for his phone before the
assault and no one saw defendant take Julio’s wallet after the assault. We disagree.

       MCL 750.530, defines unarmed robbery as follows:

               (1) A person who, in the course of committing a larceny of any money or
       other property that may be the subject of larceny, uses force or violence against any
       person who is present, or who assaults or puts the person in fear, is guilty of a felony
       punishable by imprisonment for not more than 15 years.

               (2) As used in this section, “in the course of committing a larceny” includes
       acts that occur in an attempt to commit the larceny, or during commission of the
       larceny, or in flight or attempted flight after the commission of the larceny, or in an
       attempt to retain possession of the property.

       In Harverson, 291 Mich App at 177-178 (citations omitted), this Court summarized:

              To be guilty of unarmed robbery, a defendant must (1) feloniously take the
       property of another, (2) by force or violence or assault or putting in fear, and (3) be
       unarmed. Unarmed robbery is a specific intent crime for which the prosecution
       must establish that the defendant intended to permanently deprive the owner of
       property. Because intent may be difficult to prove, only minimal circumstantial
       evidence is necessary to show a defendant entertained the requisite intent.

         The elements of unarmed robbery may be satisfied “even where a defendant uses force for
the first time after completing a taking.” People v Smith-Anthony, 494 Mich 669, 686; 837 NW2d
415 (2013). The use of “force” means “nothing more than the exertion of strength or physical
power.” People v Passage, 277 Mich App 175, 178; 743 NW2d 746 (2007).

        Julio testified that, on the day of the incident, he had “[b]etween $700 and $1,000” in his
wallet and that he offered defendant $60 or $70 to replace his phone. According to Napoltano,
Julio was “already taking money out of his wallet and throwing it on the ground” when the enraged
defendant exited the pool and approached Julio. Napoltano denied that Julio made any aggressive
movements or that he threw the money to mock defendant’s anger. The evidence established that
defendant assaulted Julio. Defendant admitted that he took the money after the assault. The


                                                 -4-
evidence established that the detective recovered Julio’s empty wallet and that same day the Shelby
Township Police arrested defendant who had $938 in cash.

       Detective Delor asked defendant about the money during his interrogation:

              Q. So you’re saying he took some money out of his wallet while you were
       arguing to pay for the phone?

              A. No. He never was gonna. Yeah, he did but it was a $50. I was like,
       “Dude this not enough, why are you doing this? You know my phone’s worth a lot
       more than $50, obviously.” Couple hundred dollars easy.

                                                   * * *

                 Q. You don’t know how much money you grabbed?

                 A. A couple hundred bucks, tops.

                                                   * * *

                 Q. When you grabbed the couple hundred bucks, that was in [Julio’s]
       wallet?

               A. It fell it out. He had his wallet out originally to, like, pay me, and I was
       like “Julio, I’m taking this. You owe me. You made it a joke to throw the $50 at
       me.”

               Q. So that couple hundred was on the ground? And [Julio] didn’t throw it
       out, that you know of? It must have just fell out?

                 A. He did not. He was not giving it to me. He wasn’t offering it to me.

        At trial, defendant testified that when he told Detective Delor that Julio did not give him
the money, he meant “that he wasn’t like giving it to me like . . . if you were going to do a financial
transaction with someone . . . .” The jury could reasonably interpret defendant’s statement to the
detective as an admission that he intentionally took Julio’s money and that he knew the money did
not belong to him. The record establishes that the prosecution presented sufficient evidence from
which the jury could find beyond a reasonable doubt that defendant committed unarmed robbery.

                               B. WAIVER OF MIRANDA RIGHTS

        Defendant argues that he involuntarily waived his Miranda rights because a police report
and his presentence investigation report indicate that he used LSD and drank alcohol on the day of
the incident, and because the video of his interrogation the day after the incident indicated that he
appeared confused and complained that he had not eaten in five hours. Defendant’s argument
lacks merit.




                                                 -5-
       Defendant failed to object or to move for a Walker2 hearing in the trial court. See People
v Todd, 186 Mich App 625, 628; 465 NW2d 380 (1990) (“Because the Miranda rule is only a
procedural safeguard to protect constitutional rights, a Miranda argument does not implicate the
“important constitutional question” exception to the preservation requirement.”) Therefore,
defendant failed to preserve this issue for review. This court reviews unpreserved issues for plain
error. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). “To avoid forfeiture
under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error
was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third
requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of
the lower court proceedings.” Id. at 763.

       “Statements of an accused made during custodial interrogation are inadmissible unless the
accused voluntarily, knowingly, and intelligently waived his or her Fifth Amendment rights.”
People v Gipson, 287 Mich App 261, 264-265; 787 NW2d 126 (2010), citing Miranda v Arizona,
384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

                 Whether a waiver of Miranda rights is voluntary depends on the absence of
         police coercion. A waiver is voluntary if it was the product of a free and deliberate
         choice rather than intimidation, coercion, or deception. The voluntariness of a
         defendant’s statements is determined by examining the totality of the circumstances
         surrounding the interrogation. A court should consider factors such as: the duration
         of the defendant’s detention and questioning; the age, education, intelligence, and
         experience of the defendant; whether there was unnecessary delay of the
         arraignment; the defendant’s mental and physical state; whether the defendant was
         threatened or abused; and any promises of leniency.

                 Whether a waiver was made knowingly and intelligently requires an inquiry
         into defendants level of understanding, irrespective of police conduct. A defendant
         does not need to understand the consequences and ramifications of waiving his or
         her rights. A very basic understanding of those rights is all that is necessary.
         Intoxication from alcohol or other substances can affect the validity of a waiver,
         but is not dispositive. [Id. at 264-265 (quotation marks, citations, and alteration
         omitted.]

        Defendant seeks to rely on a police report and his presentence investigation report that were
not introduced or admitted at trial. “However, to consider evidence presented on appeal that the
parties failed to present to the trial court would be an impermissible expansion of the lower court
record.” People v Morrison, ___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket No. 344531),
slip op at 4, citing MCR 7.210(A)(1).

        Defendant also argues that he appeared intoxicated and confused in the video of his
interrogation which indicates he did not validly waive his Miranda rights. That contention is
unsupported by the record. The video shows that Detective Delor behaved appropriately
throughout defendant’s interrogation. He read defendant his Miranda rights and asked defendant


2
    People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).


                                                 -6-
if he understood them. Defendant first responded, “I’m not being detained, am I?” Detective
Delor explained that defendant was under arrest for assault and asked again, “I just read you your
rights; do you understand your rights?” Defendant responded, “Yeah.” At the beginning of the
interrogation defendant claimed that he was not at Serra’s house on the day of the incident.
Detective Delor inquired further without aggressive or coercive conduct or statements to
defendant. In fact, the video reflects that the detective sought to make defendant comfortable.
During the recorded video, defendant hung his head, placed his hands on his forehead, and paused
on occasion for an extended period. One time, defendant declared that the detective had no proof
to which Detective Delor replied that proof included eyewitnesses. After pausing, defendant
voluntarily engaged in conversation with the detective. Another time, after similarly pausing,
defendant looked up and began to explain his version of events. He spoke rapidly causing some
slurring but he ably communicated not unlike at trial, during which defense counsel frequently
implored him to “stop mumbling.” The record does not reflect that during the interview defendant
suffered from disability associated with intoxication by drugs or alcohol.

         Even if defendant were intoxicated and hungry during his interrogation, those factors alone
would not be sufficient to establish that he involuntarily waived his Miranda rights. In Gipson,
the defendant testified that he had ingested four 40-ounce beers, 25 Vicodin pills, and smoked 12
joints in the 24 hours before his interrogation. Id. at 265. The police interviewers testified that
the defendant communicated effectively and did not appear to be under the influence of drugs and
alcohol. Id. at 266. This Court held that the trial court did not err in denying the defendant’s
motion to suppress his statements because “he was in his mid-20s, had a GED, had some limited
prior contact with the police, was interviewed within a short time after being taken into custody,
and . . . his interviews, which were about three hours apart, lasted approximately an hour each.”
Id. at 266. The trial court was not required to credit the defendant’s testimony that he was
intoxicated over the interviewers’ testimony that he was not. Id.

         In this case, defendant initially testified that he “spent hours in jail with no food” before
his interrogation. He later admitted that he was arrested at 11:00 a.m. and interrogated at 2:00 p.m.
Defendant also admitted that he had been convicted of a felony in the past, so the interrogation
was not his first interaction with police. Defendant was 28 years old at the time of trial, and there
is no indication on the record that he suffers from any cognitive deficit. The video does not indicate
that defendant suffered from inebriation that limited or interfered with his ability to rationally
decide to waive his Miranda rights and talk with the police. Review of the totality of the
circumstances in this case does not support defendant’s contention that he involuntarily waived
his Miranda rights because of intoxication, hunger, or coercion. The record indicates that
defendant voluntarily, knowingly, and intelligently waived his Miranda rights. Therefore,
defendant has failed to establish that the trial court erred. Moreover, the record reflects that, even
if the trial court erred, defendant cannot establish that he suffered prejudice, i.e., that the error
affected the outcome of the lower court proceedings. The prosecution presented substantial
evidence other than the video evidence from which reasonable jurors could find beyond a
reasonable doubt defendant’s guilt on the charged offenses. Accordingly, defendant is not entitled
to any relief in this regard.




                                                 -7-
                        C. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant argues that his trial counsel provided ineffective assistance by failing to
communicate a plea offer to defendant and because he failed to file a motion to suppress
defendant’s statements to the police contained in the video of his interrogation. We disagree.

        Criminal defendants are constitutionally guaranteed the right to effective assistance of
counsel. People v Vaughn, 491 Mich 642, 669-670; 821 NW2d 288 (2012). “Whether a person
has been denied effective assistance of counsel is a mixed question of fact and constitutional law.”
People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). Findings of fact “are reviewed
for clear error,” while “constitutional determinations are reviewed de novo.” Id. A finding is
clearly erroneous if this Court is “left with a definite and firm conviction that a mistake was made.”
Gipson, 287 Mich App at 264.

        In People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012) (citations omitted), our
Supreme Court explained that, to obtain a new trial on the ground that defense counsel provided
ineffective assistance, a defendant “must show that (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.” Defendant “must overcome
the strong presumption that counsel’s performance was born from a sound trial strategy.” Id. at
52 (citation omitted). This standard requires a reviewing court “to affirmatively entertain the range
of possible ‘reasons . . . counsel may have had for proceeding as they did.’ ” Vaughn, 491 Mich
at 670, quoting Cullen v Pinholster, 563 US 170, 196; 131 S Ct 1388; 179 L Ed 2d 557 (2011).
“This Court will not substitute its judgment for that of counsel regarding matters of trial strategy,
nor will it assess counsel’s competence with the benefit of hindsight.” People v Rockey, 237 Mich
App 74, 76-77; 601 NW2d 887 (1999) (citation omitted).

        “[A]s a general rule, defense counsel has the duty to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may be favorable to the accused.”
Missouri v Frye, 566 US 134, 145; 132 S Ct 1399; 182 L Ed 2d 379 (2012). “When defense
counsel allow[s] the offer to expire without advising the defendant or allowing him to consider it,
defense counsel [does] not render the effective assistance the Constitution requires.” Id. “To show
prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected
because of counsel’s deficient performance, defendants must demonstrate a reasonable probability
they would have accepted the earlier plea offer” and “also demonstrate a reasonable probability
the plea would have been entered without the prosecution canceling it or the trial court refusing to
accept it, if they had the authority to exercise that discretion under state law.” Id. at 147. A
defendant, however, has no right to be offered a plea. Id. at 148.

       In Michigan, a trial counsel’s assistance must enable “the defendant to make an informed
and voluntary choice between trial and a guilty plea.” People v Corteway, 212 Mich App 442,
446; 538 NW2d 60 (1995). Although a claim of ineffective assistance of counsel may be based
on counsel’s failure to communicate a plea offer, defendant must prove by a preponderance of the
evidence that a plea offer was made and that his counsel failed to communicate to him. People v
Williams, 171 Mich App 234, 242; 429 NW2d 649 (1988). “Because the defendant bears the
burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears



                                                 -8-
the burden of establishing the factual predicate for his claim.” People v Carbin, 463 Mich 590,
600; 623 NW2d 884 (2001).

        Defendant argues that his trial counsel provided him ineffective assistance on the ground
that he did not want to go to trial and desired a plea agreement but his counsel told him that plea
deals were not offered to prior felons which he contends cannot be accurate. Defendant does not
identify an actual plea offer that the prosecution made that defense counsel failed to communicate.
The trial court record contains no evidence that the prosecution ever extended a plea offer to
defendant, that defense counsel failed to convey a plea offer, or that defense counsel performed
deficiently in any other manner regarding plea negotiations. Therefore, defendant has failed to
establish by a preponderance the necessary factual predicate for this claim that his trial counsel
provided him ineffective assistance of counsel.

        Defendant also argues that his trial counsel provided ineffective assistance by failing to
move to suppress defendant’s statements to the police contained in the interrogation video. As
stated earlier, there is no reasonable basis on which to conclude that defendant involuntarily made
his statements to the police. “Obviously, defense counsel is not required to make frivolous or
meritless motions or objections.” People v Knapp, 244 Mich App 361, 386; 624 NW2d 227
(2001).

        Further, the record reflects that defendant’s trial counsel did not object to the admission of
the interrogation video based upon a reasonable trial strategy. He stipulated to the admission of
the video and used its contents as part of the defense. During his closing argument, trial counsel
referred to the interrogation multiple times to bolster defendant’s credibility, emphasize the
consistency of his statements to the detective with his trial testimony, and instill in the jurors’
minds that defendant lacked the requisite intent to commit the charged offenses. Defendant’s trial
counsel argued to the jury: “Even in his interview with the detective, [defendant] asked the
detective if Julio was okay. [Defendant] never called Julio a liar, not once.” He argued that the
prosecution minimized how statements defendant made in his interview were consistent with his
testimony at trial. Regarding the unarmed robbery charge, defense counsel argued:

       [Defendant] explained in his interview, you know, he told the detective [Julio]
       wasn’t offering or giving [him the money]. So, [defendant] interpreted that as not
       offering or giving it to him in that way, but it was a disrespectful way of just sort
       of belittling him or, you know, demeaning him; here you go, here’s your money,
       stuff like that. That’s what [Julio] did.

        Respecting both claims of ineffective assistance, defendant has failed to establish that his
trial counsel’s performance fell below an objective standard of reasonableness or that but for his
counsel’s performance the outcome of his trial would have been different. Therefore, defendant
has not established that defense counsel provided ineffective assistance.

       Affirmed.

                                                              /s/ David H. Sawyer
                                                              /s/ Anica Letica
                                                              /s/ James Robert Redford



                                                 -9-
