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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v PATRICK WADE STEVENS, Defendant-Appellant.

UNPUBLISHED December 1, 2011

No. 299384 St. Joseph Circuit Court LC No. 10-016276-FH

Before: WILDER, P.J., and HOEKSTRA and BORRELLO, JJ. PER CURIAM. Defendant appeals as of right his jury trial convictions of, and sentences for, two counts of assault with a dangerous weapon (felonious assault), MCL 750.82, and one count each of intentional discharge of a firearm from a motor vehicle, MCL 750.234a, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. For the reasons set forth in this opinion, we affirm defendant's convictions but vacate the sentences imposed for his assault with a dangerous weapon and intentional discharge of a firearm from a motor vehicle convictions and remand to the trial court for resentencing consistent with this opinion. Defendant first argues that there was insufficient evidence to sustain his convictions. This Court reviews de novo defendant's challenge to the sufficiency of the evidence presented at trial, viewing the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010); People v Cline, 276 Mich App 634, 642; 741 NW2d 563 (2007). "The elements of felonious assault are (1) an assault, (2) with a dangerous weapon, and (3) with intent to injure or place the victim in reasonable apprehension of an immediate battery." People v Chambers, 277 Mich App 1, 8; 742 NW2d 610 (2007), quoting People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999). For felonious assault, MCL 750.82 provides in relevant part that, "a person who assaults another person with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon without intending to commit murder or to inflict great bodily harm less than murder is guilty of a felony . . . ." The elements of intentional discharge of a firearm from a motor vehicle are that the defendant "intentionally discharge[d] a firearm from a motor vehicle . . . in such a manner as to endanger the safety of another individual." MCL 750.234a; People v Cortez, 206 Mich App 204, 205-206; 520 NW2d 693 (1994). "The elements of felony-firearm are that the

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defendant possessed a firearm during the commission of, or the attempt to commit, a felony." Avant, 235 Mich App at 505. Though there were some weaknesses in the prosecutor's case against defendant, when determining whether sufficient evidence was presented to support the jury's verdicts, this Court must view the evidence in the light most favorable to the prosecution, People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992), and must make credibility choices in support of those verdicts, People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). The testimony at trial established that there was a confrontation between Sherry Hernandez's boyfriend and Michelle Rutter at Kroger. After the confrontation, Hernandez trailed the Oldsmobile in which Rutter and defendant were riding for approximately 10 to 15 minutes. When Hernandez stopped the van behind the Oldsmobile at a stop sign, defendant leaned out of the automobile window, yelled "[t]his is what you're gonna get . . . bitch," and shot at the van with a small black handgun; the Oldsmobile then sped away. Both Hernandez and Rutter identified defendant as the shooter. Hernandez testified that she saw the tattoos on defendant's face, neck and arms when he emerged from the automobile window to fire the gun at her van. Rutter, who was in the automobile with defendant at the time the gun was fired, testified that she saw defendant shoot the handgun and that defendant subsequently threatened her about testifying against him at trial. Finally, another witness, Roy Wood, testified that defendant asked him to testify falsely in order to provide defendant with an alibi for the time of the shooting. Based on this evidence, viewed most favorably to the prosecutor, a rational jury could infer that defendant intentionally discharged a firearm from a motor vehicle with the intent to injure or place the victims in reasonable apprehension of an immediate battery. See People v Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005). Hence, viewed in the light most favorable to the prosecution, there was sufficient evidence for a rational jury to find beyond a reasonable doubt that defendant committed felonious assault, intentionally discharged a firearm from a motor vehicle and possessed a firearm during the commission of a felony. Next, defendant argues that he was denied effective assistance of counsel based on defense counsel's failure to call witnesses and present an alibi defense and his failure to object to impermissible evidence. Whether a person has been denied effective assistance of counsel is [generally] a mixed question of fact and constitutional law." People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). "[A] trial court's findings of fact are reviewed for clear error," and questions of constitutional law are reviewed de novo. Id. In the absence of an evidentiary hearing regarding defendant's claim of ineffective assistance of counsel, our review is limited to errors apparent on the record. People v Seals, 285 Mich App 1, 19-20; 776 NW2d 314 (2009). While there was no separate evidentiary hearing regarding defendant's claim of ineffective assistance of counsel, we take note in reviewing this issue, that, during the trial, the trial court engaged defense counsel in a discussion, outside the presence of the jury, of perceived deficiencies in his representation of defendant, made pertinent findings of fact regarding the efficacy of that representation, and offered cautionary instructions to the jury regarding inadmissible hearsay testimony that it felt defense counsel had allowed the prosecutor to get in "through the back door." The denial of effective assistance of counsel violates a defendant's constitutional rights. US Const, Am VI; Const 1963, art 1,

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