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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v GREGORY JAMES CROZIER, Defendant-Appellant.

UNPUBLISHED November 19, 2009

No. 287516 St. Clair Circuit Court LC No. 08-001063-FH

Before: Talbot, P.J., and O'Connell and Davis, JJ. PER CURIAM. Defendant was found guilty by a jury of felonious assault, MCL 750.82, and domestic assault, MCL 750.81, for which he was sentenced as an habitual offender, fourth offense, MCL 769.12, to concurrent terms of 2 to 15 years' imprisonment. He appeals as of right. We affirm. This appeal has been decided without oral argument pursuant to MCR 7.214(E). Defendant's convictions arise out of a domestic incident involving himself, his girlfriend, and his girlfriend's roommate. The girlfriend and roommate provided slightly contradictory testimony. But they generally agreed that the girlfriend had gotten into an argument with defendant, and defendant became physically aggressive and attacked her. The roommate intervened, whereupon defendant retrieved a large meat fork from the kitchen and stabbed the roommate. The roommate then used a large bamboo stick to force defendant to leave the residence. Defendant contended that his girlfriend had been the person to initiate both the argument and the physical aggression, and that he only used the fork in self-defense because the roommate attacked him with the bamboo stick. The evidence showed that defendant and his girlfriend had had a long, dysfunctional history that included other acts of violence by defendant against her. The jury clearly found that defendant did not act in self-defense. Defendant argues on appeal that he was entitled to a jury instruction on the lesser included offense of simple assault. We disagree. "Necessarily included lesser offenses are offenses in which the elements of the lesser offense are completely subsumed in the greater offense." People v Mendoza, 468 Mich 527, 532; 664 NW2d 685 (2003). An instruction on a lesser offense is proper where "all the elements of the lesser offense are included in the greater offense, and a rational view of the evidence would support such an instruction." Id. at 533. The elements of felonious assault are: "(1) an assault, (2) with a dangerous weapon, and (3) with an intent to injure or place the victim in -1-

reasonable apprehension of an immediate battery." People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999). Since an assault is the first element of felonious assault, its elements are completely subsumed by felonious assault. Thus, it is a necessarily included lesser offense. However, no rational view of the evidence supports a jury instruction on simple assault. There is no dispute that the meat fork was a dangerous weapon, nor is there any serious dispute that it was in some way involved in the altercation. If defendant's version of events was to be believed, he acted in self defense and therefore committed no assault of any kind. If defendant's roommate's and girlfriend's versions of events were to be believed, defendant attacked the roommate with a dangerous weapon and was consistently the aggressor. Either way, no simple assault occurred. Consequently, defendant was not entitled to any such instruction. Defendant contends that trial counsel was nevertheless ineffective for failing to obtain an instruction on simple assault. We disagree. Such an instruction would have been inconsistent with a self-defense defense. Defense counsel's decision to pursue an "all or nothing" verdict based on self-defense, rather than requesting a simple assault instruction, was a matter of sound trial strategy. People v Gonzalez, 468 Mich 636, 645; 664 NW2d 685 (2003); People v Lavearn, 448 Mich 207, 214-216; 528 NW2d 721 (1995). This Court will not second-guess matters of trial strategy. Gonzalez, supra at 644-645. Furthermore, the mere fact that a strategy did not work does not render counsel ineffective. See People v Kevorkian, 248 Mich App 373, 415; 639 NW2d 291 (2001). Defendant next argues the trial court erred in enhancing his sentence under MCL 769.12, fourth habitual offender, based on two out-of-state convictions. We disagree. Statutory construction is an issue of law reviewed de novo. People v Morales, 240 Mich App 571, 575; 618 NW2d 10 (2000). The trial court's factual findings at sentencing are reviewed for clear error. MCR 2.613(C); People v Houston, 261 Mich App 463, 471; 683 NW2d 192 (2004). Prior to trial, the prosecution sought to treat defendant as an habitual fourth offender in accordance with MCL 769.13(1). Defense counsel stipulated that defendant had previously been convicted of interference with electronic communications equipment. The prosecutor brought two other convictions

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