                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    February 12, 2015
               Plaintiff-Appellee,

v                                                                   No. 318211
                                                                    Kent Circuit Court
WILLIE LEE-WILSON WILLIAMS,                                         LC No. 12-007416-FC;
                                                                             12-007417-FC;
                                                                             12-007418-FC;
                                                                             12-007499-FC;
                                                                             12-007619-FC;
                                                                             12-010250-FC
               Defendant-Appellant.


Before: O’CONNELL, P.J., and SAWYER and MARKEY, JJ.

PER CURIAM.

        Defendant appeals by right his convictions following two separate jury trials. He was
sentenced as a fourth-offense habitual offender, MCL 769.12. In trial I, which included all lower
court docket numbers except 12-010250-FC, defendant was convicted of four separate counts of
armed robbery, MCL 750.529, assault with intent to rob while armed, MCL 750.89, and
receiving and concealing stolen property of a value $1,000 or more but less than $20,000, MCL
750.535(3)(a). The trial court sentenced defendant to 30 to 60 years’ imprisonment for each of
his four armed robbery convictions, to 30 to 60 years’ imprisonment for his assault with intent to
rob while armed conviction, and to 5 to 30 years’ imprisonment for his receiving and concealing
stolen property conviction. In trial II, defendant was convicted of: assault with intent to murder,
MCL 750.83, and sentenced to 50 to 100 years’ imprisonment, assault of a prison employee,
MCL 750.197c, and sentenced to 5 to 30 years’ imprisonment, and escape from jail through
violence, MCL 750.197c, and sentenced to 5 to 30 years’ imprisonment. We affirm.

         Defendant first argues that he is entitled to a new trial because his constitutional and
statutory right to be present at both trials was violated. This issue is unpreserved, and we review
it for plain error affecting a defendant’s substantial rights. People v Carines, 460 Mich 750, 763-
764; 597 NW2d 130 (1999).

         A defendant has a constitutional right, guaranteed by the Sixth Amendment, to be present
at trial. People v Staffney, 187 Mich App 660, 663; 468 NW2d 238 (1990), citing Illinois v
Allen, 397 US 337, 338; 90 S Ct 1057; 25 L Ed 2d 353 (1970). A defendant also has a statutory

                                                -1-
right to be present during trial. MCL 768.3. Only the defendant may waive both his
constitutional and statutory right to be present during his trial. People v Buie (On Remand), 298
Mich App 50, 56-57; 825 NW2d 361 (2012). Waiver requires the intentional relinquishment or
abandonment of a known right. Carines, 460 Mich at 762, n 7. A defendant may waive his right
to be present at trial by (1) being voluntarily absent after the trial has begun, or (2) becoming so
disorderly or disruptive that his trial cannot be continued while he is present. Buie, 298 Mich
App at 57. Similarly, a defendant may waive his statutory right to be present at trial. Id. Thus, a
defendant validly waives the right to be present at trial when, with specific knowledge of this
constitutional right, he or she intentionally abandons it. Id. “One who waives his rights under a
rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver
has extinguished any error.” Id. (citation and quotation omitted).

        In trial I, although defendant was apprised of his constitutional right to be present at trial,
he told the trial court that he did not wish to be present. Defendant proceeded to return to his
holding cell. Every day of trial, the trial court attempted to secure defendant’s presence.
Further, each time defendant was brought into the courtroom, for in-court identification
purposes, the trial court asked defendant whether he wanted to stay. On each occasion,
defendant refused to participate, and he returned to his holding cell. The record reflects that
having knowledge of his constitutional right, defendant intelligently and voluntarily waived his
right to be present at trial. Accordingly, defendant waived his constitutional and statutory right
to be present at trial I. Buie, 298 Mich App at 56-57.

         In trial II, defendant was not specifically apprised of his constitutional right to be
present.1 Where a defendant is not specifically apprised of his right to be present at trial,
defendant cannot knowingly waive that right. Id. at 58. Nevertheless, defendant’s absence from
trial II does not require reversal because his substantial rights were not affected. Carines, 460
Mich at 763.

        To show an error affected a defendant’s substantial rights, it is necessary to show
prejudice, specifically “that the error affected the outcome of the lower court proceedings.” Id.
In Buie, this Court in a similar situation stated the test for whether defendant’s absence from a
part of his trial requires reversal is whether there was any reasonable possibility that his absence
prejudiced the defendant. Buie, 298 Mich App at 59.

        In this case, nothing in the record supports a finding that there was any “reasonable
possibility” that defendant was prejudiced by his absence. Id. The evidence of defendant’s guilt
was overwhelming. Defendant assaulted a corrections officer, choked her to the point of
unconsciousness, and attempted to escape. Inmate witnesses confirmed the corrections officer’s
testimony. Further, the trial court made every attempt to include defendant in the trial court
proceedings. The court, in trial II, asked defendant at the beginning of each day of trial whether
he wanted to participate. Defendant indicated that he did not. The trial court also excused the


1
 We recognize that the second trial began four days after trial I ended and that at the beginning
of trial II, the trial court referenced defendant’s choice not to attend the first trial. But, defendant
was not specifically appraised regarding his right to be present at the second trial.


                                                  -2-
jury before bringing defendant into the courtroom to try to avoid any prejudice that may have
resulted from seeing defendant in shackles. Additionally, the trial court instructed the jury not to
consider defendant’s absence in coming to a verdict. See People v Benton, 294 Mich App 191,
202; 817 NW2d 599 (2011) (“jurors are presumed to have followed their instructions”).
Accordingly, defendant is not entitled to a reversal of his convictions in trial II because there is
no reasonable possibility that his absence was prejudicial. Buie, 298 Mich App at 59.

        Next, defendant argues that the prosecution presented insufficient evidence of his specific
intent to kill to convict him of assault with intent to commit murder. This Court reviews de novo
the sufficiency of the evidence in a criminal case. People v Ericksen, 288 Mich App 192, 195;
793 NW2d 120 (2010). The evidence is sufficient to sustain a conviction if, when viewed in a
light most favorable to the prosecution, it would permit a rational trier of fact to find all essential
elements of the crime were proved beyond reasonable doubt. Id. at 196.

        A conviction of assault with intent to commit murder requires proving (1) an assault, (2)
with the actual intent to kill, and (3) that would make the killing murder if successful. People v
Brown, 267 Mich App 141, 147; 703 NW2d 230 (2005). Although the prosecution must prove
that defendant had the specific intent to kill, minimal circumstantial evidence is sufficient to
establish an actor’s state of mind. People v Unger, 278 Mich App 210, 223; 749 NW2d 272
(2008).

        While in jail before trial I, defendant assaulted the Kent County corrections officer, who
was working third shift. Defendant requested to use a bathroom outside of his cell, and the
officer unlocked defendant’s cell and allowed him to use the bathroom. Thereafter, the officer
performed a block check, during which she saw defendant out of his cell. Defendant walked
over to the officer, grabbed her by the neck, and choked her until she lost conscious. He only
stopped choking the victim because another inmate broke out of his cell and intervened. When
the officer regained consciousness, defendant grabbed her by the neck and dragged her out of the
cell block. He choked her two more times before other corrections officers intervened and
apprehended defendant.

        The record established that defendant choked the officer, and after she was unconscious,
defendant continued to choke her. According to the testimony of several of the inmates, if the
victim had not been rescued, she would have died. At trial, an expert testified that there is a high
potential of death if a victim is choked for an additional 2 to 5 minutes after losing
consciousness. The victim also testified that she thought defendant was “going to break her
neck.” Viewing the evidence in a light most favorable to the prosecution, a reasonable jury
could have found that defendant intended to kill the victim. Accordingly, defendant’s assault
with intent to murder conviction was supported by sufficient evidence.

       We affirm.

                                                               /s/ Peter D. O'Connell
                                                               /s/ David H. Sawyer
                                                               /s/ Jane E. Markey




                                                 -3-
