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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v PAUL PETERSEN, Defendant-Appellant.

UNPUBLISHED July 5, 1996

No. 180207 LC No. 93-0006431-FH

Before: Smolenski, P.J., and Holbrook, Jr., and F. D. Brouillette,* JJ. PER CURIAM. Defendant was charged with forgery, MCL 750.248; MSA 28.445, uttering and publishing, MCL 750.249; MSA 28.446, and larceny by conversion, MCL 750.362; MSA 28.594. A jury found defendant guilty as charged. The trial judge sentenced defendant to serve concurrent prison terms of three to fourteen years for the forgery conviction, three to fourteen years for the uttering and publishing conviction, and one to five years for the larceny by conversion conviction. Defendant appeals as of right from his convictions and sentences. We affirm. Defendant, as director of a nonprofit corporation, managed a senior citizen complex in Traverse City. In April 1992, defendant's contract was terminated, and a new management company was installed. In August of that year, defendant used his employment position at a local brokerage firm to transfer a treasury note from the complex's reserve fund, required by its Farmers Home Administration (hereinafter "FmHA") loan, to an account maintained by one of defendant's other business entities. Subsequently, defendant used the proceeds from the sale of this note for personal expenses. At trial, defendant argued that the various contracts between the nonprofit corporation and the complex allowed him to make this transfer to extinguish an unsatisfied debt owed to him by the complex. The jury rejected this claim of right defense and found defendant guilty as charged.

* Circuit judge, sitting on the Court of Appeals by assignment. -1

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Defendant argues that his right to a fair trial was infringed by his trial attorney's ineffective assistance. We disagree. This Court reviews de novo the record below to determine whether the defendant was prejudiced by the alleged ineffective assistance of counsel so as to deprive the defendant of a fair trial. People v Barclay, 208 Mich App 670, 672; 528 NW2d 842 (1995). To establish a claim that the assistance of one's counsel was ineffective, the defendant must first show that counsel's assistance fell below the objective standard of reasonableness. Id. In other words, the defendant must overcome the presumption that his counsel's actions were the product of sound trial strategy. People v Hurst , 205 Mich App 634, 641; 517 NW2d 858 (1994). Second, the defendant must establish that his counsel's representation prejudiced him so as to have deprived him of a fair trial. People v McMillan, 213 Mich App 134, 141; 539 NW2d 553 (1995). If this element cannot be established, the defendant's claim must fail. People v Pickens, 446 Mich 298, 333; 521 NW2d 797 (1994). Defendant asserts that his trial counsel's failure to introduce the various contracts between the nonprofit corporation and failure to hire an accountant to act as an expert witness vitiated his claim of right defense. We disagree. For the most part, the introduction of evidence and the decision to call witnesses are part of counsel's trial strategy. People v Lavearn, 201 Mich App 679, 684; 506 NW2d 909 (1993), rev'd on other grounds 448 Mich 207; 528 NW2d 721 (1995). In order to overcome the presumption that failure to introduce evidence or call a witness was sound trial strategy, the defendant must show that the failure deprived him of a substantial defense that would have affected the outcome of the proceedings. People v Daniel, 207 Mich App 47, 58; 523 NW2d 830 (1994). Defendant asserts that the actions of his trial attorney deprived him of the use of the claim of right defense. A claim of right defense is defined as: "Where one, in good faith, takes the property of another and converts it to his own use, believing it to be legally his own, or that he has a legal right to its possession, he is not guilty of larceny ... It is necessary, however, in all cases that the claim of right be a bona fide one and not a mere cover for a felonious taking. The taker's claim of right must be something more than a vague impression, it must amount to an honest conviction." [People v Karasek , 63 Mich App 706, 713; 234 NW2d 761 (1975), quoting 52A CJS, Larceny,

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