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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v WILLIAM AERRON BRADY, Defendant-Appellant.

UNPUBLISHED October 20, 2009

No. 285640 Macomb Circuit Court LC No. 2007-003158-FC

Before: Donofrio, P.J., and Wilder and Owens, JJ. PER CURIAM. Defendant was convicted by a jury of assault with intent to do great bodily harm less than murder, MCL 750.84, unlawful imprisonment, MCL 750.349b, felon in possession of a firearm, MCL 750.224f, felonious assault, MCL 750.82, possession of a firearm during the commission of a felony, MCL 750.227b, and two counts of resisting or obstructing a police officer, MCL 750.81d(1). He was acquitted of three additional counts of felonious assault. He was sentenced as a fourth habitual offender, MCL 769.12, to concurrent prison terms of 19 to 60 years each for the assault with intent to do great bodily harm, unlawful imprisonment, and felon in possession convictions, and 5 to 15 years each for the felonious assault and resisting or obstructing convictions, to be served consecutive to a two-year term of imprisonment for the felony-firearm conviction. He appeals as of right. We now affirm. Defendant was convicted of physically assaulting and confining a 77-year-old woman who had befriended him and allowed him to stay in her home. The evidence indicated that during an approximate 12-hour period beginning on June 6, 2007, and continuing until the early morning hours of June 7, 2007, defendant assaulted and forcibly confined the woman inside her own home, except for a brief period when he forcibly took her to a party store. On the morning of June 7, after defendant left for work, the police were contacted and later arrested defendant at his worksite. I. Sufficiency of the Evidence Defendant first argues that there was insufficient evidence to support his convictions for assault with intent to do great bodily harm less than murder, unlawful imprisonment, and

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resisting or obstructing a police officer and, accordingly, the trial court erred in denying his motion for a directed verdict on those charges.1 An appellate court's review of the sufficiency of the evidence to sustain a conviction should not turn on whether there was any evidence to support the conviction, but whether there was sufficient evidence to justify a rational trier of fact in finding the defendant guilty beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 513; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). We must review the evidence in a light most favorable to the prosecution to determine whether a rational trier of fact could find that the elements of the charged crime were proven beyond a reasonable doubt. Id. at 514-515. To prove the crime of assault with intent to do great bodily harm, the prosecution was required to prove (1) an assault with (2) a specific intent to do great bodily harm less than murder. People v Bailey, 451 Mich 657, 668-669; 549 NW2d 325 (1996), amended 453 Mich 1204 (1996). Defendant concedes that there was sufficient evidence of an assault, but argues that there was insufficient evidence of his intent to do great bodily harm. We disagree. Assault with intent to do great bodily harm is a specific intent crime. People v Parcha, 227 Mich App 236, 239; 575 NW2d 316 (1997). As plaintiff correctly argues, the offense depends on the defendant's intent, not any actual harm to the victim. See People v Harrington, 194 Mich App 424, 429-430; 487 NW2d 479 (1992). In this case, testimony that defendant attempted to smother the victim several times with a pillow, and that he loaded a gun, pointed it at the victim, and pulled the trigger, was sufficient to enable the jury to find beyond a reasonable doubt that defendant assaulted the victim with the intent to do great bodily harm. The facts that the victim was able to resist defendant's attempts to smother her, and that the gun did not fire when defendant pointed it and pulled the trigger, does not negate defendant's intent. Accordingly, the evidence was sufficient to support defendant's conviction of assault with intent to do great bodily less than murder. The unlawful imprisonment statute, MCL 750.349b, provides, in relevant part: (1) A person commits the crime of unlawful imprisonment if he or she knowingly restrains another person under any of the following circumstances: (a) The person is restrained by means of a weapon or dangerous instrument. (b) The restrained person was secretly confined.

Defendant was convicted of assault with intent to do great bodily harm less than murder as a lesser offense to an original charge of assault with intent to commit murder, MCL 750.83. At trial, defendant moved for a directed verdict of the assault with intent to commit murder count, arguing that, at most, the evidence only supported a finding of assault with intent to do great bodily harm less than murder. The trial court denied defendant's motion. Despite defendant's apparent concession at trial that the evidence supported a finding of assault with intent to do great bodily harm less than murder, defendant properly may challenge the sufficiency of the evidence for that offense on appeal. People v Wolfe, 440 Mich 508, 516 n 6; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992).

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(c) The person was restrained to facilitate the commission of another felony or to facilitate flight after commission of another felony. *** (3) As used in this section: (a) "Restrain" means to forcibly restrict a person's movements or to forcibly confine the person so as to interfere with that person's liberty without that person's consent or without lawful authority. The restraint does not have to exist for any particular length of time and may be related or incidental to the commission of other criminal acts. (b) "Secretly confined" means either of the following: (i) To keep the confinement of the restrained person a secret. (ii) To keep the location of the restrained person a secret. Although defendant argues that unlawful imprisonment was not proven because the victim was allowed to move around her house during the 12-hour period defendant was present, MCL 750.349b(3)(a) specifically provides that a defendant need not restrain the victim for any particular length of time. The testimony indicated that defendant restrained the victim in her home by taking her from room to room with him several times, and by disabling the telephones, during which time he threatened her with a gun. Also, he forced her to accompany him to the store by not letting go of her arm while they went there. Although defendant contends that the victim was not secretly confined because one of the telephones was not immediately disabled, thereby enabling the victim to call her employer, defendant was not charged with secret confinement imprisonment, but rather with knowingly restraining the victim through the use of a weapon under MCL 750.349b(1)(a). Viewed in a light most favorable to the prosecution, the evidence was sufficient to enable the jury to find beyond a reasonable doubt that defendant was guilty of unlawful imprisonment for restraining the victim under circumstances involving the use of a weapon. The evidence was also sufficient to support defendant's two convictions of resisting or obstructing a police officer, MCL 750.81d(1). A person is guilty of this crime if he knowingly resists or obstructs a police officer in the performance of his duties. People v Ventura, 262 Mich App 370, 375-376; 686 NW2d 748 (2004). For purposes of the statute, "obstruct" includes "the use or threatened use of physical interference or force or a knowing failure to comply with a lawful command." MCL 750.81d(7); People v Chapo, 283 Mich App 360, 367; ___ NW2d ___ (2009). The evidence that two officers repeatedly ordered defendant to get down on the ground, and that defendant ignored those commands, stood up, and continued standing until the officers physically placed him on the ground, and that defendant thereafter refused to comply with the officers' commands to place his arms at his side, viewed in a light most favorable to the prosecution, was sufficient to enable the jury to find that the essential elements of this offense were proven beyond a reasonable doubt.

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II. Failure to Produce a Witness Next, defendant argues that the prosecution failed to provide reasonable assistance in attempting to locate a res gestae witness, David Wilson, and that defense counsel was ineffective for not attempting to secure Wilson's appearance at trial, and for not requesting either a hearing on the matter or an instruction that would have allowed the jury to infer that Wilson's testimony would not have been favorable to the prosecution. Although defendant requested assistance in locating Wilson before trial, he did not object when Wilson was not produced at trial, or protest that the prosecution failed to provide reasonable assistance in attempting to locate Wilson and secure his appearance at trial. Therefore, this issue is not preserved and defendant must demonstrate a plain error affecting his substantial rights. People v Carines, 460 Mich 750, 761-767; 597 NW2d 130 (1999). Under MCL 767.40a, the prosecution is not required to produce all known res gestae witnesses for trial, but rather is only required to identify those witnesses and produce them for trial if they are included on the prosecution's witness list. See People v Perez, 469 Mich 415, 418-419; 670 NW2d 655 (2003). Wilson was not named on the prosecution's witness list. Therefore, the prosecutor did not have a duty to produce him at trial. Upon request by a defendant, the prosecution must also provide reasonable assistance in attempting to locate and serve process upon a witness. MCL 767.40a(5); see also People v Lawton, 196 Mich App 341, 347-348; 492 NW2d 810 (1992). If a defendant requests assistance in locating a witness and that witness is not produced, a hearing may be appropriate to determine whether the prosecution provided reasonable assistance in attempting to locate and secure that witness's appearance at trial. People v Cook, 266 Mich App 290, 295-296 n 7; 702 NW2d 613 (2005). If it is determined that the prosecutor failed to provide reasonable assistance in attempting to locate a witness, an instruction informing the jury that it may infer that the missing witness's testimony would have been favorable to the defendant may be appropriate. See CJI2d 5.12; Perez, supra at 420. Whether such an instruction is appropriate depends on the facts of each particular case. Id. at 420-421. In this case, defendant never requested a hearing to determine what efforts were made to attempt to locate Wilson and secure his appearance at trial. Thus, there is no basis for concluding that reasonable assistance was not provided, or that a missing witness instruction would have been appropriate. Furthermore, it is apparent that Wilson's nonappearance did not affect defendant's substantial rights. Where a witness has not been produced despite a duty to do so, a defendant must demonstrate that he was prejudiced by the failure to produce the witness. People v Bonita Jackson, 178 Mich App 62, 66; 443 NW2d 423 (1989). It follows that a showing of prejudice is likewise necessary when the prosecution fails to provide reasonable assistance in attempting to locate a witness. The record discloses that Wilson's only connection to this case was that he was present at the house where defendant was later arrested. Thus, the only charges to which his testimony possibly could have been relevant are the two charges of resisting or obstructing a police officer. Even then, however, the evidence indicated that Wilson was in the basement of the house when defendant was arrested in the upstairs kitchen. Thus, he was not in a position to observe the circumstances surrounding defendant's arrest. At most, Wilson could have offered testimony -4-

about what he heard, if anything. The principal issue at trial, however, was not whether the officers made a lawful command, but whether defendant failed to comply with the officers' commands. Because Wilson was in the basement, he was not in a position to observe defendant's conduct in reaction to the officers' commands. For these reasons, there is no basis for concluding that defendant was prejudiced by the failure to locate Wilson, or by Wilson's absence at trial. Indeed, defense counsel acknowledged at a pretrial hearing that Wilson was not a necessary witness. Accordingly, defendant is not entitled to relief with respect to this unpreserved issue. Defendant alternatively argues that defense counsel was ineffective for not securing Wilson's appearance, not requesting a hearing regarding the prosecution's efforts to locate Wilson, and not requesting a missing witness instruction. Because defendant did not raise this ineffective assistance of counsel issue in the trial court, our review is limited to errors apparent from the record. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). To establish ineffective assistance of counsel, defendant must show that counsel's performance fell below an objective standard of reasonableness, and that the representation so prejudiced defendant that he was denied his right to a fair trial. People v Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994). Defendant must overcome the presumption that the challenged action might be considered sound trial strategy. People v Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991). To establish prejudice, defendant must show that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. People v Johnnie Johnson, Jr, 451 Mich 115, 124; 545 NW2d 637 (1996). A defendant is entitled to have his counsel prepare, investigate, and present all substantial defenses. Where there is a claim that counsel was ineffective for failing to raise a defense, the defendant must show that he made a good-faith effort to avail himself of the right to present a particular defense and that the defense of which he was deprived was substantial. A substantial defense is one that might have made a difference in the trial's outcome. People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990). This Court is reluctant to substitute its judgment for that of trial counsel in matters of trial strategy and ineffective assistance of counsel will not be found merely because a strategy backfires. People v Duff, 165 Mich App 530, 545-546; 419 NW2d 600 (1987). As discussed previously, the record indicates that Wilson was not in a position to observe the circumstances surrounding defendant's arrest, and that Wilson was not present when the remaining charged offenses were committed. Thus, there is no basis for finding that Wilson could have provided a substantial defense to any of the charges. Similarly, there is no reasonable probability that the outcome of the trial would have been different had Wilson been located and testified at trial, or had counsel requested the missing witness instruction, CJI2d 5.12. We therefore reject defendant's claim that defense counsel was ineffective. III. Prosecutor's Conduct Defendant next argues that he is entitled to a new trial because of improper comments by the prosecutor during closing and rebuttal arguments. We disagree. Preserved claims of prosecutorial misconduct are reviewed de novo to determine whether the defendant was denied a fair and impartial trial. People v Bahoda, 448 Mich 261, 266-267; 531 NW2d 659 (1995); People v Abraham, 256 Mich App 265, 272; 662 NW2d 836 (2003). Where an alleged error is -5-

not preserved with an appropriate objection at trial, our review is limited to plain error affecting the defendant's substantial rights. Id. at 274. Further, this Court will not reverse if the prejudicial effect of the prosecutor's comments could have been cured by a timely instruction upon request. People v Joezell Williams II, 265 Mich App 68, 70-71; 692 NW2d 722 (2005), aff'd 475 Mich 101 (2006). Claims of prosecutorial misconduct are decided case by case and the challenged comments must be considered in context. People v McElhaney, 215 Mich App 269, 283; 545 NW2d 18 (1996). A prosecutor is afforded great latitude in closing argument. She is permitted to argue the evidence and reasonable inferences that arise from the evidence in support of her theory of the case. Bahoda, supra at 282. However, the prosecutor must refrain from making prejudicial remarks. Id. at 283. While prosecutors have a duty to see that a defendant receives a fair trial, they may use "hard language" when it is supported by the evidence and they are not required to phrase their arguments in the blandest of terms. People v Ullah, 216 Mich App 669, 678; 550 NW2d 568 (1996). "A prosecutor may not make a statement of fact to the jury that is unsupported by evidence, but she is free to argue the evidence and any reasonable inferences that may arise from the evidence." People v Ackerman, 257 Mich App 434, 450; 669 NW2d 818 (2003). "A defendant's right to a fair trial may be violated when the prosecutor interjects issues broader than the guilt or innocence of the accused." People v Rice (On Remand), 235 Mich App 429, 438; 597 NW2d 843 (1999). Defendant first argues that the prosecutor improperly appealed to the jurors' sympathy for the victim by describing the offense in her closing argument as a horror, and asking the jury to "send a message" and find defendant guilty if the jury believed the victim. Because there was no objection to these remarks, defendant must show a plain error that affected his substantial rights, and must also show that a cautionary instruction could not have cured any possible prejudice. Abraham, supra; Williams, supra. It is improper for the prosecutor to appeal to the jury to sympathize with the victim. People v Watson, 245 Mich App 572, 591; 629 NW2d 411 (2001). It is also generally improper for the prosecutor to ask the jurors to place themselves in the role of the victim when arriving at a verdict. People v Buckey, 133 Mich App 158, 167; 348 NW2d 53 (1984), rev'd on other grounds 424 Mich 1 (1985). Here, the prosecutor's comments did not involve an obvious plea to the jury to sympathize with the victim. The prosecutor merely urged the jury to consider all of the circumstances of the case and find defendant guilty. The descriptions of the offense as "torture" and "horror" were supported by the evidence and, therefore, were not improper. Also, the prosecutor did not ask the jurors to place themselves in the victim's shoes, nor were her arguments calculated to ask the jurors to suspend their judgment and decide the case based on sympathy for the victim. People v Hoffman, 205 Mich App 1, 21; 518 NW2d 817 (1994). Accordingly, no plain error has been shown. Defendant next argues that the prosecutor improperly denigrated defense counsel through the following remarks during her rebuttal argument: Talked about this burden, and I welcome this burden, and this burden is used to convict people everyday across America. He says it is our burden to take -6-

finger prints [sic]. No, it is not. That's -- it's not a legal burden. Testimony is evidence and he wants you to forget that. He wants you to forget about Chris Genna's testimony, just forget about that testimony. He wants you to forget about the gun that he says the officers planted on him. Ladies and Gentlemen, did the officers appear to be evading the questions or lying? Are they going to risk their jobs for him? This isn't TV, this is

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