# People of Michigan v. Dominique Rashard Rountree

> Michigan Court of Appeals · August 17, 2023

URL: https://www.frixlaw.com/law-library/cases/9556653

## Case

- **Court:** Michigan Court of Appeals
- **Decided:** August 17, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9556653

## How later opinions describe it (automated extraction)

- concluding that an out of court statement cannot be hearsay if it “is incapable of being true or false”
- stating that the failure to give an accident instruction can be harmless when the trial court properly instructs the jury about the specific intent
- stating that a trial court abuses its discretion when it fails to exercise its discretion in accordance with the law
- stating that whether to apply the habitual offender enhancements is discretionary

## Opinion text

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 17, 2023
Plaintiff-Appellee,

v No. 354035
Washtenaw Circuit Court
DOMINIQUE RASHARD ROUNTREE, LC No. 19-000375-FC

Defendant-Appellant.

Before: GLEICHER, C.J., and O’BRIEN and MALDONADO, JJ.

PER CURIAM.

Defendant, Dominique Rashard Rountree, appeals by right his jury convictions of first-
degree home invasion, MCL 750.110a(2); being a felon in possession of a firearm (felon-in-
possession), MCL 750.224f; being a felon in possession of ammunition (felon-in-possession of
ammunition), MCL 750.224f(6); and three counts of possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant as
a second-offense habitual offender, MCL 769.10, to serve concurrent prison terms of 10 to 30
years for his home-invasion conviction and 40 months to 7 years and 6 months each for his felon-
in-possession convictions. The trial court also sentenced defendant to serve 2 years’ imprisonment
for each his felony-firearm convictions, with 294 days of credit for time already served, to be
served concurrent to each other and consecutive to the underlying felonies. On appeal, defendant
argues that he did not have a fair trial on a variety of grounds and also challenges his sentences.
We affirm defendant’s convictions, vacate defendant’s sentences, and remand for resentencing.

I. FACTS

A. BACKGROUND

This case arises from a shooting that occurred at a townhouse located in Superior Township
in March 2019. Carmen Cruz lived in the townhouse with her three children and Joshua Anderson,
the father of two of her children, but she was no longer in a romantic relationship with him. At
the time of the shooting, Cruz was dating a man named Brian Jackson. Defendant was also a
former intimate partner of Cruz, and he had previously lived with her at the townhouse. On the

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morning in question, defendant parked his SUV in front of the townhouse, then walked directly to
the back of the building and entered it through a broken ground level window that had been covered
by a piece of wood. A police officer who investigated the scene testified that the wood had been
secured to the window and was broken off upon defendant’s entry. The circumstances surrounding
defendant’s entry into the townhouse were hotly contested. It was undisputed that defendant no
longer lived at the townhouse. Cruz testified1 that defendant was not welcome there, and his entry
through the window reflected his status as an intruder. Defendant testified that, despite having
broken up with Cruz, he continued to be welcome in her home, he went over frequently, he still
received his mail there, his state ID was registered at that address, he was previously paroled to
that address, and he had permission to come and go as he pleased. Defendant testified that he
always entered the townhouse through this window because his copy of the key was lost and that
Cruz had also entered through the window multiple times.

After entering the townhouse, defendant let himself into Cruz’s bedroom where she was
naked in her bed with Brian Jackson. It is undisputed that defendant found himself in a physical
altercation with Jackson that ended with Jackson suffering a gunshot wound. The balance of the
testimony opened the jury to starkly different sets of potential findings. Cruz testified that she
panicked when she saw defendant in the doorway because, while she did not see a gun, he “kept
grabbing his waist.” She got out of bed and began to frantically search for her clothes. Then,
Defendant walked around to the other side of the bed, and while she was looking down trying to
find her clothing, Cruz heard the gunshot. Upon hearing the gunshot, Cruz then ran out of the room
to check on her children.

Defendant, however, testified that he went to the townhouse to get his mail and did not
expect anybody to be home. After realizing that the kids were home, defendant went upstairs and
found Cruz in bed with Jackson. Cruz ran out of the room, and defendant noticed that there was a
gun and some cash on the window sill next to Jackson. Defendant told Jackson to leave, and when
Cruz reentered the room, Jackson “cocked” the gun. Defendant tried to take the gun from Jackson,
a struggle ensued, and the gun “went off.” The struggle ended when defendant saw that Jackson
was bleeding. It is undisputed that Jackson then drove himself to the hospital, that the police
subsequently found a gun in a bush outside the townhouse, and that there was surveillance footage
of defendant exiting the townhouse and walking to the area where the gun was found. However,
defendant could not be seen possessing the gun in this footage.

B. PROCEDURAL HISTORY

Defendant was charged with assault with intent to murder (AWIM), first-degree home
invasion, carrying a concealed weapon, felon-in-possession, felon-in-possession of ammunition,
and four counts of felony-firearm. Cruz did not appear at the trial and over defendant’s objections,
her testimony from the preliminary examination was read into the record at the trial. Defendant

1
As will be discussed in detail below, Cruz’s testimony was offered at the preliminary
examination, and she did not appear at trial. At the trial, her preliminary examination testimony
was read into the record.

-2-
was found not guilty of AWIM, carrying a concealed weapon, and the accompanying felony-
firearm charges, but he was found guilty of all remaining counts. On appeal, defendant raised
claims of ineffective assistance of counsel and moved for a remand to conduct a Ginther2 hearing,
predicated primarily on his assertion that his trial attorney should have called numerous witnesses
to testify that he had a right to enter the townhouse. The motion was granted, and the trial court
conducted a two-day evidentiary hearing, after which he was not granted a new trial. Defendant
subsequently filed a motion in this Court seeking a second remand predicated on his assertion that
David Goldstein, defendant’s attorney, could and should have called Carmen Cruz to testify on his
behalf. Included with this motion was an affidavit signed by Cruz, in which she recanted her prior
testimony. In this affidavit, Cruz asserted that defendant had a right to enter the townhouse and
did so regularly. The motion was granted and Cruz was called to testify at the second evidentiary
hearing, but she appeared with an attorney and asserted her fifth amendment rights. Accordingly,
she did not offer any useful testimony. The circuit court then denied defendant’s request to admit
Cruz’s affidavit into evidence, and this appeal continued.

The record having been fully developed and the issues having been thoroughly briefed, this
case is now before us fully ripe for appellate review.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that his trial attorney—David Goldstein—provided ineffective assistance
of counsel. We disagree.

Claims of ineffective assistance of counsel present mixed questions of fact and law. People
v Head, 323 Mich App 526, 539; 917 NW2d 752 (2018). Factual findings are reviewed for clear
error and legal conclusions are reviewed de novo. Id.

“To prevail on a claim of ineffective assistance, a defendant must, at a minimum, show that
(1) counsel’s performance was below an objective standard of reasonableness and (2) a reasonable
probability exists that the outcome of the proceeding would have been different but for trial
counsel’s errors.” Head, 323 Mich App at 539 (quotation marks, citation, and alteration omitted).
“[A] reasonable probability is a probability sufficient to undermine confidence in the outcome.”
People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018). “A convicted defendant making a
claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not
to have been the result of reasonable professional judgment.” Strickland, 466 US at 690. This
Court then evaluates “whether the trial attorney’s acts or omissions were outside the wide range
of professionally competent assistance.” People v Green, 322 Mich App 676, 684; 913 NW2d 385
(2018) (quotation marks and citation omitted). This Court presumes counsel was effective, and
defendant carries a heavy burden to overcome this presumption. Head, 323 Mich App at 539.

A. FAILURE TO CALL WITNESSES

2
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

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Defendant argues that Goldstein rendered ineffective assistance by failing to call numerous
witnesses to testify that defendant was entitled to enter the townhouse. We disagree.

“Decisions regarding what evidence to present, whether to call witnesses, and how to
question witnesses are presumed to be matters of trial strategy.” People v Horn, 279 Mich App
31, 39; 755 NW2d 212 (2008). Counsel’s decisions regarding the choice of theories to present are
likewise presumed to be sound exercises of trial strategy, People v Davis, 250 Mich. App. 357,
368; 649 N.W.2d 94 (2002). “This Court does not second-guess counsel on matters of trial
strategy, nor does it assess counsel’s competence with the benefit of hindsight.” People v Traver,
328 Mich App 418, 422-423; 937 NW2d 398 (2019). “A failed strategy does not constitute
deficient performance.” People v Petri, 279 Mich App 407, 412; 760 NW2d 882 (2008).
However, “[c]ounsel always retains the duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” People v Trakhtenberg,
493 Mich 38, 52; 826 NW2d 136 (2012) (quotation marks and citation omitted). “[A] sound
defense strategy cannot follow an incomplete investigation of the case when the decision to forgo
further investigation was not supported by reasonable professional judgment.” Id. at 55.

1. CHRISTINA KUCHARSKI AND JOSHUA ANDERSON

Defendant argues that Goldstein should have called Christina Kucharski, Cruz’s mother,
and Joshua Anderson to testify that he had the right to enter and be present in the townhouse. At
the Ginther hearing, Goldstein testified that defendant wanted him to call witnesses who would
testify that defendant had permission to be present at Cruz’s home, but defendant did not provide
any “specific names.” They had “talked about a family member,” and it may have been Cruz’s
mother. Goldstein did not believe these witnesses would be helpful:

I do a lot of drug cases; and in drug cases, there’s an issue sometimes of whether
an individual lives at a particular location, so you talk about indicia of residents.
[sic] And I had that kind of discussion with Mr. Rountree. Did he get his mail
there? Was his driver’s license—have that address on it or his ID card? Did he
have rent receipts? Did he pay rent? Did he keep clothing there? When I had that
kind of discussion and I said will this other person, the mother or Carmen’s mother,
whichever it was, would that person know any of those things? And he said, no;
basically he told that person that he lived there. And I explained to him that was
not helpful.

Goldstein did not recall ever having personally spoken with Kucharski.

Defendant testified that he gave Goldstein the names of several people who could
corroborate his right to be present in the townhouse, including Christina Kucharski. Defendant
alleged that Goldstein told him he would call these witnesses, but defendant found out the day of
the trial that this was untrue. Kucharski, purportedly, would have testified that defendant regularly
entered the townhouse through the window. Kucharski testified at the Ginther hearing that she
viewed herself as defendant’s mother-in-law, and defendant would come and go from the
townhouse as he pleased. She asserted that defendant had his own key, received mail there, had
the townhouse’s address on his driver’s license, and paid for rent and utilities. Kucharski testified
that anybody, not just defendant, would enter through the window if they were locked out.

-4-
Defendant testified that he likewise gave the name of Joshua Anderson, the father of two of Cruz’s
children, to Goldstein prior to the trial. Anderson, according to defendant, lived at the townhouse
and could have testified that defendant routinely came and went from the townhouse. Anderson
testified during the Ginther hearing that he did not pay any rent but was nevertheless on Cruz’s
lease at the townhouse. He further stated that defendant had permission to come over and that he
did so even after breaking up with Cruz. Defendant received his mail at the townhouse and even
helped babysit. Anderson also testified that it was not unusual for defendant to enter the townhouse
through the window.

Whether the testimony by Christina Kucharski and Joshua Anderson offered at the Ginther
hearing would have been helpful to defendant had it been offered at trial -is immaterial to our
analysis because defendant has failed to establish that Goldstein erred by failing to procure it.3
Goldstein testified that defendant did not supply him with any information identifying these
witnesses or suggesting that their testimony would have been helpful. According to Goldstein,
defendant only relayed to him that there were “family members,” possibly including Cruz’s
mother, who would testify that defendant told them he was entitled to be at the townhouse. The
trial court was in the best position to judge the credibility of Goldstein and defendant, and it
resolved the conflict between their versions of events in favor of Goldstein; that resolution is
entitled to deference. People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). Accepting
Goldstein’s version of events, a reasonable lawyer in Goldstein’s position would not further
investigate these proposed witnesses because there was no reason to believe that they had direct
evidence to support defendant’s contention, and a reasonable trial lawyer would understand that
this testimony—as described to Goldstein by defendant—was likely inadmissible hearsay. See
MRE 801(c); MRE 802.

For these reasons, defendant has failed to establish that Goldstein’s failure to contact
Kucharski and Anderson and call them as witnesses constituted ineffective assistance of counsel.

2. CARMEN CRUZ

Defendant argues that Goldstein provided ineffective assistance by failing to investigate
Cruz and determine whether she would be ready, willing, and able to testify on defendant’s behalf
at trial. Defendant supports this argument with an affidavit, signed by Cruz, in which she recants
her preliminary examination testimony and asserts that defendant had the right to enter the
townhouse. Upon receipt of a motion to remand, to which this affidavit was appended, this Court
granted a remand for a second evidentiary hearing for the limited purpose of exploring the
availability of Carmen Cruz as a witness for the defense. Cruz, however, appeared at the hearing
with counsel, invoked her fifth amendment rights, and declined to offer any meaningful testimony.

As was already discussed, Goldstein had an obligation to “make reasonable investigations
or to make a reasonable decision that makes particular investigations unnecessary.” Trakhtenberg,
493 Mich at 52 (quotation marks and citation omitted). The failure to conduct an adequate
investigation is an omission that falls below an objective standard of reasonableness under

3
We do note, however, that the trial court did not find any of this testimony credible.

-5-
prevailing professional norms. Id. at 52-53. No reasonable person could conclude—on the
evidence then before Goldstein—that it fell below an objective standard of reasonableness for him
to refrain from interviewing Cruz. The record showed that Cruz told police officers that defendant
did not have permission to enter her townhouse. She also testified against defendant at the
preliminary examination and repeated that defendant did not have permission to enter her
townhouse. Indeed, she testified that they had been broken up for a year. This, combined with the
rest of the damaging testimony she offered at the preliminary examination, supported Goldstein’s
conclusion that she would not offer helpful testimony. Goldstein also testified at the evidentiary
hearing and related that the prosecutor informed him about the difficulties with getting Cruz to
appear to testify. Additionally, defendant told him that he was confident that Cruz would not
appear, and there was evidence presented at the trial suggesting that defendant might have procured
Cruz’s absence.4 On the basis of this evidence, it was entirely reasonable for Goldstein to conclude
that Cruz had no helpful testimony. It was, therefore, reasonable for him to refrain from
investigating further. See id.

Furthermore, the record showed that—when properly advised about the ramifications of
her testimony—Cruz asserted her privilege under the Fifth Amendment and refused to testify in
contradiction to her preliminary examination testimony. Given Cruz’s assertion of her privilege
at the evidentiary hearing, defendant cannot establish that there was a reasonable probability that,
but for Goldstein’s failure to investigate, Cruz would have testified at his trial, let alone that she
would have testified favorably to defendant. Moreover, Goldstein testified that he typically
obtained better results for his clients when alleged victims did not appear at trial, and we do not
second guess counsel on issues of trial strategy. Traver, 328 Mich App 422-423.5 Consequently,
defendant has not shown that Goldstein’s failure, if any, prejudiced him at trial.6

4
At the trial, defendant admitted during cross examination that he had spoken on the phone with
Cruz “dozens” of times since he was arrested. During these phone calls, defendant instructed Cruz
to contact the prosecutor’s office and inform them that she did not want to be involved with the
case any further and wanted the no-contact order to be lifted.
5
The effectiveness of defense counsel is not evaluated based on the success or failure of counsel’s
strategy, Petri, 279 Mich App at 412, but nevertheless we note that this strategy was largely
successful as defendant was acquitted of the most serious charge.
6
After Cruz invoked her right to remain silent at the evidentiary hearing, defendant attempted to
admit her affidavit into evidence, but it was not admitted because the trial court sustained the
prosecution’s hearsay objection. Defendant asserts the trial court’s failure to admit the affidavit
as a separate claim of error. We decline to review the trial court’s decision not to admit the
affidavit because, even if it had been admitted, it would not have helped defendant establish his
claim of ineffective assistance. To reiterate: we review Goldstein’s performance based exclusively
on the information available to him at the time. Prior to the trial, this affidavit did not exist, and
as we discussed above, Goldstein had no reason to believe that attempting to procure Cruz’s
testimony would be worthwhile.

-6-
B. DEFENDANT’S TESTIMONY

Prior to the trial, defendant told Goldstein that he took the gun from Jackson after the
struggle, during which Jackson was shot, and he subsequently threw it behind the townhouse.
Defendant argues that Goldstein rendered ineffective assistance of counsel by advising defendant
that he should not testify about having ever been in possession of the gun unless specifically asked.
Goldstein testified at the Ginther hearing that he was concerned about defendant admitting to
having had possession of the gun because none of the prosecution’s witnesses would be able to
testify that defendant shot Jackson. Accordingly, he felt that making such a concession would be
self-defeating. It is wholly unclear to us how this testimony could possibly have been helpful to
defendant. If anything, testifying that he took possession of the gun after the struggle with Jackson
and then underwent steps to hide it from police, in part because “he knew he wasn’t allowed to
possess firearms,”7 was an admission of guilt to the felon-in-possession charge. It also could have
been used by the prosecution as consciousness-of-guilt evidence in support of the more serious
charges. Therefore, assuming arguendo that defendant gave this information to Goldstein who
advised him not to admit to it on the stand,8 this did not constitute ineffective assistance of counsel
because it would have been a reasonable strategic decision to which we defer. See Traver, 328
Mich App 422-423

C. FAILURE TO REQUEST INSTRUCTIONS

Defendant argues that Goldstein provided ineffective assistance by failing to request
several jury instructions. We disagree.

At the conclusion of a trial, the court is required to “instruct the jury as required and
appropriate . . .” MCR 2.513(N)(1). Defendant had the right to have “a properly instructed jury
consider the evidence against him,” and the instructions had to “include all elements of the crime
charged . . . and must not exclude from jury consideration material issues, defenses or theories if
there is evidence to support them.” People v Ogilvie, ___ Mich App ___, ___; ___ NW2d ___
(2022) (Docket No. 354355); slip op at 2 (quotation marks and citations omitted). A defendant
may advance inconsistent defenses such as accident and self-defense, but there must be support
for the instructions. People v Guajardo, 300 Mich App 26, 43; 832 NW2d 409 (2013). “[J]ury
instructions must not exclude consideration of material issues, defenses, and theories for which
there is supporting evidence.” People v Kurr, 253 Mich App 317, 327; 654 NW2d 651 (2002).
“In reviewing a trial court’s jury instructions, this Court examines the instructions as a whole, and,
even if there are some imperfections, there is no basis for reversal if the instructions adequately
protected the defendant’s rights by fairly presenting to the jury the issues to be tried.” People v
Dumas, 454 Mich 390, 396; 563 NW2d 31 (1997). Put differently, “[e]ven if somewhat imperfect,
instructions do not warrant reversal if they fairly presented the issues to be tried and sufficiently
protected the defendant’s rights.” Kurr, 253 Mich App at 327.

7
This is a direct quotation from defendant’s Standard 4 brief.
8
There was no testimony about this particular claim of error at either evidentiary hearing.

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1. SELF-DEFENSE AND ACCIDENT

Defendant argues that Goldstein should have requested a jury instruction on self-defense
or accident.

Goldstein testified at the Ginther hearing that he did not recall the specifics of any
conversations he may have had with defendant about the possibility of requesting a self-defense
instruction. Defendant testified that he was adamant with Goldstein from the case’s inception that
he was defending himself. However, there was no evidence at trial that would have supported a
finding that defendant acted in self-defense. “A finding that a defendant acted in justifiable self-
defense necessarily requires a finding that the defendant acted intentionally, but that the
circumstances justified his actions.” Guajardo, 300 Mich App at 43 (quotation marks and citation
omitted). Defendant did not testify that he intentionally shot Jackson; Jackson did not testify; and
Cruz testified that she did not see the who fired the gun. Moreover, as Goldstein aptly stated at
the evidentiary hearing, it was an important part of the defense to the assault with the intent to
murder charge to avoid having defendant testify that he intentionally shot Jackson. Rather, it was
Goldstein’s strategy to emphasize that defendant did not intentionally shoot Jackson, so he could
argue defendant did not have the intent necessary for the more serious assault charge or its lesser
included offense.

On the other hand, there was evidence that could have supported an accident instruction.
An instruction on accident is appropriate when there is evidence that the defendant and his or her
victim struggled over a gun and the gun went off accidentally. See People v Hawthorne, 474 Mich
174, 179-180; 713 NW2d 724 (2006). Defendant testified that—contrary to Cruz’s statement that
she saw him grabbing for something at his waist and then heard a shot—he was unarmed when he
confronted Cruz and Jackson in Cruz’s bedroom. Defendant asserted that Jackson had a gun next
to the window and that he grabbed it when defendant entered the bedroom and held it by his side.
Defendant said that he told Jackson that he had to leave, and Jackson responded by “cocking” the
gun. Defendant tried to take the gun at that point, and they struggled over it. While an accident
instruction would have been appropriate, defendant has failed to establish that the outcome of the
proceedings would have been different if such an instruction had been offered. The trial court
instructed the jury that it had to find that defendant had the specific intent to commit those crimes,
which naturally would not be the case had the gun discharged accidentally. See Id. at 185 (stating
that the failure to give an accident instruction can be harmless when the trial court properly
instructs the jury about the specific intent). Additionally, the jury apparently accepted Goldstein’s
theory of the case and determined that the prosecutor had not established beyond a reasonable
doubt that defendant intended to kill Jackson or intended to cause him great bodily harm.
Consequently, any error was harmless because the accident instruction plainly applied only to the
charges for which defendant was acquitted. See Id.

2. RIGHT TO ENTER

Defendant argues that Goldstein should have requested instructions clarifying that he could
not be convicted of home invasion if he had permission to be at the townhouse or honestly and
reasonably believed that he had the right to be there.

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A person commits first-degree home invasion, in relevant part, if he or she “breaks and
enters a dwelling or enters a dwelling without permission and, at any time while he or she is
entering, present in, or exiting the dwelling, commits a felony, larceny, or assault.” MCL
750.110a(2). By using the common-law element “breaks and enters,” the Legislature incorporated
the body of law defining what it means to break and enter. See People v Riddle, 467 Mich 116,
125-126; 649 NW2d 30 (2002). Accordingly, the common-law defense of permission applied to
the element of breaking and entering. See Id. at 126.

The trial court instructed the jury that the prosecutor had to prove, in relevant part, that
defendant “broke into a dwelling or entered a dwelling without permission.” Notably, the trial
court did not instruct the jury using language from the statute concerning “breaking and entering”
or “entering without permission,” which would have suggested to those unfamiliar with the
common law that breaking and entering—even with permission—might satisfy the element.
Rather, the trial court referred to breaking into a dwelling and entering a dwelling together, which
it then followed with the qualifier “without permission.” The phrasing of the instruction actually
given, although it could have been more clearly stated, indicated that the limiting phrase “without
permission” applied in this context to both the act of breaking and the act of entering.
Consequently, the instruction put the defense of permission before the jury and protected
defendant’s rights. See Dumas, 454 Mich at 396.

It might have been better practice for Goldstein to have requested a specific instruction
informing the jury that a person cannot commit first-degree home invasion if he or she had a good-
faith belief that he or she had the right to break or enter the dwelling, but the question is not whether
the instruction was perfect—it is whether the instructions, when read as a comprehensive whole,
adequately protected defendant’s rights. See People v McFall, 224 Mich App 403, 412-413; 569
NW2d 828 (1997). A reasonable defense lawyer in Goldstein’s position might have felt that the
instruction adequately covered the defense under the circumstances. See People v Dunigan, 299
Mich App 579, 584; 831 NW2d 243 (2013) (“Failing to request a particular jury instruction can
be a matter of trial strategy.”). A reasonable defense lawyer may have preferred to keep the
emphasis on whether defendant ever had a gun in his possession before the struggle with Jackson.
Indeed, the record showed that Goldstein focused his arguments on precisely that; he argued that
there was not any credible evidence to establish that defendant committed an assault. He told the
jury, for example, that, if it found that the gun accidentally discharged, then it should find
defendant not guilty of first-degree home invasion: “If my client did not commit an assault, in
other words, if you find that the struggle over the gun caused the gun to discharge accidentally
regardless of whose hand was on the gun, regardless of whose hand was on the trigger, it’s not an
assault, then he’s not guilty of” first-degree home invasion. Given the strong evidence that no
reasonable person in defendant’s position would have a good-faith belief that he had the right to
enter into Cruz’s townhouse, barge into her bedroom in an intimate moment, and demand that her
new boyfriend leave, it was reasonable for Goldstein to focus on the assault charges and the assault
element of first-degree home invasion, which could have successfully resulted in an acquittal of
all the most serious charges. Consequently, defendant has not shown that Goldstein’s failure to
request a more accurate or thorough instruction on the defense of permission fell below an
objective standard of reasonableness under prevailing professional norms.

3. POSSESSION OF FIREARM

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In his Standard 4 brief, defendant argues that Goldstein rendered ineffective assistance by
failing to request the trial court to instruct the jury that it was permissible for him to possess a
firearm under certain limited circumstances. We disagree.

At trial, defendant testified that he went outside to “look” for a gun—presumably because
he did not know where it was—after Jackson left for the hospital. He also testified that he did not
“handle” or “use” guns. Despite the testimony he offered while under oath at the trial, defendant
subsequently testified at the evidentiary hearing that he told Goldstein he had briefly possessed the
gun. He asserts in his Standard 4 brief that he took the gun from Jackson to protect himself and
later threw it outside the townhouse because Cruz panicked about the shooting and because he
knew he was not supposed to possess a gun. Based on this new version of events, defendant asserts
that Goldstein should have requested an instruction on temporary possession of a firearm as a
defense to the various firearm charges and that Goldstein erred by instructing him not to admit that
he carried the gun unless directly asked.

For the reasons discussed above, if it is true that Goldstein instructed defendant not to
testify to having possessed the gun unless directly asked, this was not ineffective assistance.
Goldstein also cannot be faulted for declining to request an instruction about temporary possession.
This Court has stated that a felon may momentarily possess a firearm, even though contrary to the
statutes prohibiting such possession, when compelled by certain circumstances to do so. See
People v Dupree, 284 Mich App 89, 104-108; 771 NW2d 470 (2009) (opinion by M.J. KELLY, J.).
This defense, however, is quite circumscribed and requires evidence that the defendant only
possessed the firearm to avoid a threatened harm, did not recklessly or negligently place himself
in the situation at issue, had no reasonable opportunity to avoid possessing the firearm, and
terminated the possession once the danger had passed. Id. at 107-108 (opinion by M.J. KELLY, J.).
In this case, there was no trial testimony that defendant possessed the gun and hid it outside. The
evidence that he did so depended on inferences drawn from the testimony about where the gun
was found and the video evidence. Although this circumstantial evidence might have been
sufficient to warrant an instruction to the jury, if requested, see Ogilvie, ___ Mich App at ___; slip
op at 2, in order to argue it effectively to the jury, Goldstein would have had to address defendant’s
inconsistent testimony and would have had to concede that there was evidence that defendant
carried the gun outside and hid it. The very fact that he took the gun outside permitted an inference
that he retained it well past the time when he was plausibly justified in retaining possession and
suggested a guilty conscience beyond that for a mere possession offense. Therefore, raising the
issue implicated the defense to the more serious charges. An argument concerning such an
instruction might even have amounted to a concession to the elements of the very charges for
which the instruction was intended to be a defense. Under these circumstances, a defense lawyer
in Goldstein’s position might reasonably conclude that requesting the instruction was not worth
the harm that it might cause to the defense given that he could not effectively argue to the jury
how the instruction might apply. Accordingly, defendant has not shown that Goldstein’s decision
to refrain from requesting an instruction on momentary possession fell below an objective standard
of reasonableness under prevailing professional norms.

D. PLEA NEGOTIATIONS

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Defendant argues in his supplemental brief that defense counsel provided ineffective
assistance involving his plea negotiations. We disagree.

“As at trial, a defendant is entitled to the effective assistance of counsel in the plea-
bargaining process.” People v Douglas, 496 Mich 557, 591-592; 852 NW2d 587 (2014). In this
context, the defendant must still satisfy the test articulated in Strickland. Id. at 592. During the
plea-bargaining process, defense counsel’s duty is to “properly advise defendant regarding the
nature of the charges or the consequences of the guilty plea and the possible defenses to the charges
to which the defendant is pleading guilty, so defendant has the ability to make an intelligent and
informed choice from among his alternative courses of action.” People v White, 331 Mich App
144, 148; 951 NW2d 106 (2020) (quotation marks and citation omitted). An ineffective assistance
of counsel claim can be based on the rejection of a plea offer if the rejection is the result of an
unprofessional error by defense counsel and if it results in a more severe sentence following a trial.
Lafler v Cooper, 566 US 156, 166; 132 S Ct 1376; 182 L Ed2d 398 (2012). To establish prejudice,
defendant must specifically demonstrate that, but for Goldstein’s poor advice, he would have
accepted the plea, the prosecution would not have withdrawn the plea, the trial court would have
accepted the plea, and he would have received a lesser punishment. Douglas, 496 Mich at 592.

Goldstein testified that he could not remember exactly what the prosecution’s plea offer
was but that it involved “a plea to a felony firearm and a substantive count” and a minimum
sentence of “three and a half [years]: two on the felony firearm, one and a half on the substantive
count.” Goldstein said that it was his habit to inform his clients about the upsides and downsides
of going to trial and allow the client to make the final decision. Goldstein testified that he had
several conversations with defendant about the plea offer and recalled that defendant was
“confident” Cruz would not appear at the trial. Goldstein also knew that there was a possibility
that Jackson—the gunshot victim—would not appear. He explained to defendant that he usually
obtained better results for his clients when a victim does not appear, that prosecutors sometimes
dismiss their charges if a witness does not appear, that there were no indications that the prosecutor
in this case would do so, and that the prosecutor might use Cruz’s preliminary examination
testimony at trial. Defendant, according to Goldstein, rejected the offer because he believed he
would prevail at trial. Defendant, however, testified at the hearing that he wanted to accept the
plea agreement until Goldstein told him the case would be dismissed if the prosecution’s witnesses
did not appear and that Goldstein did not explain that Cruz’s testimony from the preliminary
examination could be used; had he known this, he would have accepted the plea agreement.

On appeal, defendant contends that, because the trial court did not specifically find that
Goldstein advised him that the prosecutor could admit Cruz’s testimony from the preliminary
examination at his trial, the trial court’s findings did not establish that Goldstein actually did. It is
true that the trial court did not make that exact finding. However, the trial court did find that
Goldstein properly advised defendant concerning the plea negotiations. As stated, Goldstein
testified that he advised defendant about the risks of proceeding to trial and noted that the
prosecutor might try to use Cruz’s preliminary examination testimony. He further stated that
defendant rejected the offer, despite his advice, because defendant thought he could win. By
finding that Goldstein properly advised defendant during the plea negotiations, the trial court
impliedly found that defendant was aware of the risks of proceeding, which included the risk that
the prosecutor would be able to introduce Cruz’s testimony from the preliminary examination.
The trial court was in the best position to judge the conflict between the testimony by Goldstein

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and defendant, and it resolved that conflict in favor of Goldstein; we will not second-guess that
finding. See People v White, 3341 Mich App 144, 150; 951 NW2d 106 (2020) (“This Court defers
to the trial court's superior position to evaluate the credibility of witnesses who testified before
it.”). Consequently, defendant failed to establish that Goldstein’s advice fell below an objective
standard of reasonableness. See Douglas, 496 Mich at 592.

For these reasons, defendant has failed to establish that Goldstein did not provide effective
assistance during plea negotiations.

E. MISTAKE OF LAW

Defendant argues in his Standard 4 brief that Goldstein did not understand that the
prosecutor could establish the assault element of first-degree home invasion by presenting
evidence of a simple assault even though the prosecutor did not charge defendant with a simple
assault. This contention is unsupported by the record.

To convict defendant of first-degree home invasion, the prosecutor had to prove that he, in
relevant part, broke and entered the townhouse without permission, or entered the townhouse
without permission, and “at any time while he . . . [was] entering, present in, or exiting the
dwelling,” committed “a felony, larceny, or assault” while he was either “armed with a dangerous
weapon” or while another “person [was] lawfully present.” MCL 750.110a(2). The record does
not show that Goldstein misunderstood the relevant elements of MCL 750.110a(2), which
prevented him from pursing a reasonable trial strategy. Goldstein testified at the evidentiary
hearing that it was his “view of the case” that a successful attack on the assault with the intent to
murder and its lesser offense would also serve as a defense to the assault element of the home
invasion charge. He further testified that he discussed whether the prosecutor could establish the
assault element of the home invasion charge with defendant and told defendant that, in his view,
any rational jury that acquitted him of the charged assaults would also acquit him of the home
invasion. Goldstein also stated that he thought he had “good reason to argue” in his motion for
judgment notwithstanding the verdict that, if the jury acquitted defendant of the predicate felony,
the first-degree home invasion charge should be dismissed. Goldstein explained that he would not
make a statement that the jury had to acquit under those circumstances—only that it “probably” or
“should” acquit. In his motion for a directed verdict before the trial court, Goldstein indicated that
he knew that the prosecutor had to prove that defendant committed a “specified crime.” Notably,
he did not state that the prosecutor had to prove a predicate felony.

Goldstein’s testimony at the Ginther hearing suggested that he was focused on the fact that
the prosecutor charged defendant with committing a felony, which would meet the requirement
that defendant committed a felony, larceny, or assault while entering, present in, or exiting the
townhouse. He also recognized that the assault with the intent to murder and assault with the intent
to commit great bodily harm charges necessarily encompassed a simple assault. See People v
Brown, 267 Mich App 141, 148; 703 NW2d 230 (2005). Goldstein explained that he thought that
a defense to the assault charges would serve as well as a defense to the home invasion because it
would undermine an essential element of the home invasion charge—namely, whether defendant
committed a felony or assault while in the townhouse. As already discussed, that was a rational
choice even though it did not ultimately sway the jury. See People v Stewart, 219 Mich App 38,

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42; 555 NW2d 715 (1996) (“The fact that defense counsel’s strategy may not have worked does
not constitute ineffective assistance of counsel.”).

Additionally, as noted, Goldstein argued to the jury that it should acquit defendant of the
home invasion charge if it believed that the shooting was an accident. Goldstein could reasonably
focus the jury’s attention on defendant’s version of events, which, if accepted by the jury, would
have established that defendant never took any actions that would have placed Jackson in
reasonable apprehension of a battery or amounted to an attempt to commit a battery. See People
v Grant, 211 Mich App 200, 202; 535 NW2d 581 (1995) (stating the elements of a simple assault).
Under defendant’s version of events, he and Jackson struggled over a gun and the gun accidentally
discharged—there was no indication that it was brandished at all. The fact that Goldstein did not
anticipate the jury finding that defendant brandished a firearm but did not otherwise have the intent
to murder or cause great bodily harm did not establish that his defense strategy was unreasonable.

In conclusion, while Goldstein did not believe a rational jury would acquit defendant of
AWIM and convict him of first-degree home invasion, nothing in the record suggests that he
believed no jury legally could.

III. EVIDENTIARY ERROR

Defendant argues that the trial court abused its discretion when it prevented him from
testifying about statements Jackson and Cruz made when defendant entered the bedroom. We
agree. However, this error does not warrant reversal because it was harmless.

Evidentiary challenges are reviewed for abuse of discretion. People v Thorpe, 504 Mich
230, 251; 934 NW2d 693 (2019). “The decision to admit evidence is within the trial court's
discretion and will not be disturbed unless that decision falls ‘outside the range of principled
outcomes. A decision on a close evidentiary question ordinarily cannot be an abuse of discretion.”
Id. at 251-252 (quotation marks and citation omitted). However, a trial court’s interpretation of
the rules of evidence is reviewed de novo. People v Edwards, 328 Mich App 29, 34; 935 NW2d
419 (2019). A ruling based on an erroneous interpretation of the law is “necessarily an abuse of
discretion.” People v Grissom, 492 Mich 296, 321; 821 NW2d 50 (2012).

Defendant testified that Cruz initially left the bedroom after he entered, that he told Jackson
to leave, and that Cruz subsequently returned. Defendant sought admission of his testimony
concerning an exchange between Cruz and Jackson, and the court instructed the jury to leave so
there could be an offer of proof. Goldstein asked defendant to explain what happened beginning
with when Cruz returned to the room:

A. She came back into the—not the house, into the room and said to Mr.
Jackson, you just need to leave. And she asked us not to do this here and basically
just asked him could he leave.

Q. Okay. Then what?

A. And then he said what the fuck you mean I got to leave.

Q. Okay, then what?

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A. He cocked the gun.

Q. I’m sorry?

A. He said—I said he cocked the gun.

Q. Okay. When did he—when did he—when did he actually take the gun?

A. He had grabbed the gun as soon as I said that he had to leave and then
she came in there she said please don’t do this here, you just need to leave, that’s
when he cocked the gun.

Goldstein argued that the out-of-court statements were being offered purely for contextual reasons,
but the court concluded that they were inadmissible hearsay. On appeal, defendant argues that the
trial court erred by concluding that these statements were hearsay, and this error deprived him of
his constitutional right to present a defense.

“ ‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). “A
‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended
by the person as an assertion.” MRE 801(a). “Hearsay is not admissible except as provided by”
the Michigan Rules of Evidence. MRE 802. There were three out-of-court statements that the
trial court deemed hearsay: (1) Cruz told Jackson that he needed to leave; (2) Cruz asked defendant
and Jackson “not to do this here”; (3) Jackson said “what the fuck you mean I got to leave.” None
of the statements were hearsay because none of them were assertions. See MRE 801(a). The first
two statements were commands, and the third statement was a question; commands and questions
are not hearsay. See People v Jones, 228 Mich App 191, 204-205; 579 NW2d 82 (1998)
(concluding that an out of court statement cannot be hearsay if it “is incapable of being true or
false”).9

However, this error by the trial court does not warrant reversal of defendant’s convictions
because it was harmless. Defendant argues this was a constitutional error because it deprived him
of his right to present a defense. “Few rights are more fundamental than that of an accused to
present evidence in his or her own defense.” People v Unger, 278 Mich App 210, 249; 749 NW2d
272 (2008). Nonetheless, in this instance this was not a constitutional error because the wrongful
exclusion of such insignificant testimony did not deprive defendant of “a meaningful opportunity
to present a complete defense.” People v Aspy, 292 Mich App 36, 49; 808 NW2d 569 (2011)
(quotation marks and citation omitted). “[I]t is patent from a review of the trial record that
defendant was allowed to present evidence . . . which, if the jury believed, would have provided
defendant a complete defense to the charges brought against him.” People v King, 297 Mich App
465, 474; 824 NW2d 258 (2012). The defense in this case was that defendant had the right to enter
the townhouse, the gun belonged to Jackson, and Jackson initiated the struggle that resulted in the
gunshot. Defendant’s testimony clearly made these same assertions. The success or failure of his

9
The parties’ arguments pertaining to whether the statements were offered “to prove the matter
asserted” are irrelevant because nothing was asserted.

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defense hinged on whether the jury deemed his testimony credible, and his assertion that Cruz told
Jackson to leave would have done little if anything to bolster his credibility. Therefore, this was a
non-constitutional, and “a preserved, nonconstitutional error is not grounds for reversal unless,
after an examination of the entire cause, it affirmatively appears that it is more probable than not
that the error was outcome determinative.” People v Williams, 483 Mich 226, 243; 769 NW2d
605 (2009). The above discussion of why the exclusion of this evidence did not deprive defendant
of his right to present a defense likewise instructs our conclusion that the error was harmless.
IV. SENTENCING

A. HABITUAL OFFENDER ENHANCEMENT

Defendant argues that the trial court enhanced his maximum sentences under MCL 769.10
under the mistaken belief that it did not have the discretion to do otherwise. As the prosecutor
concedes on appeal, that was error. See People v Mack, 265 Mich App 122, 125; 695 NW2d 342
(2005) (stating that whether to apply the habitual offender enhancements is discretionary); see also
People v Green, 205 Mich App 342, 346; 517 NW2d 782 (1994) (stating that a trial court abuses
its discretion when it fails to exercise its discretion in accordance with the law). Accordingly, we
vacate the maximum sentences applicable to Defendant’s indeterminate sentences and remand for
recalculation of the maximum sentences.

B. USE OF ACQUITTED CONDUCT

Defendant argues in his Standard 4 brief that the trial court improperly considered acquitted
conduct when scoring OVs one, two, and three. We disagree.

The trial court’s factual findings at sentencing are reviewed for clear error and must be
supported by a preponderance of the evidence. People v Sours, 315 Mich App 346, 348; 890
NW2d 401 (2016). “A sentencing court may consider all record evidence before it when
calculating the guidelines, including, but not limited to, the contents of a presentence investigation
report, admissions made by a defendant during a plea proceeding, or testimony taken at a
preliminary examination or trial.” People v Johnson, 298 Mich App 128, 131; 826 NW2d 170
(2012) (quotation marks and citation omitted). “Whether the facts, as found, are adequate to satisfy
the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question
of statutory interpretation, which an appellate court reviews de novo.” Id. (quotation marks and
citation omitted). Criminal defendants are entitled to a sentence that is based on accurate
information and accurate scoring of the sentencing guidelines. People v McGraw, 484 Mich 120,
131; 771 NW2d 655 (2009).

In People v Beck, 504 Mich 605, 626; 939 NW2d 213 (2019), our Supreme Court held that
“the use of acquitted conduct to sentence a defendant more harshly violates due process . . . .” This
Court provided guidance on the application of Beck when it decided People v Brown, 339 Mich
App 411; ___ NW2d ___ (2021). “The Beck majority described ‘acquitted conduct’ as conduct
that has been formally charged and specifically adjudicated not guilty by a jury,” but this Court
stated that there are “several epistemological and practical problems with this definition . . . .” Id.
at 421 (quotation marks, citation, and alteration omitted). This Court decided to adopt a “rational
jury approach” that would focus “on what the parties actually disputed at trial.” Id. at 423.

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This approach moves away from prohibiting any and all facts and circumstances
related to any element of the crime, and instead focuses on the key facts and
circumstances that the parties argued about during the trial. This approach is
similar to the “rational jury” standard used in the double-jeopardy context, which
requires examining the record to determine the ground or grounds upon which a
rational jury could have acquitted the defendant. Rather than focus on all of the
conceivable grounds upon which a jury could have theoretically acquitted the
defendant—even those grounds, for example, that were conceded by the defense or
otherwise uncontested by the parties—the focus would be on the grounds that the
parties actually put in dispute at trial. The inquiry must be set in a practical frame
and viewed with an eye to all the circumstances of the proceedings.

* * *

. . . [U]nder the rational-jury approach, the sentencing court could consider facts
and circumstances that were not, in a practical sense, put in dispute at trial, as long
as those facts and circumstances were otherwise consistent with the jury’s acquittal
on a particular charge. Moreover, if a specific fact or circumstance was relevant to
both the acquitted charge and the convicted charge—i.e., if there was an overlap of
relevant conduct—then the trial court could consider that fact or circumstance when
sentencing on the convicted charge. [Id. at 423-425 (quotation marks and citations
omitted).]

When the rational-jury approach described in Brown is applied to the facts of this case, it is clear
the court’s decisions on the relevant variables did not run afoul of the bar on the consideration of
acquitted conduct.

For OV 1, the trial court had to score 25 points if a “firearm was discharged at or toward a
human being.” MCL 777.31(1)(a). The jury found beyond a reasonable doubt that defendant
carried or possessed a firearm during the commission of his home invasion, and whether defendant
assaulted or assaulted and battered Jackson was clearly at issue. It was also undisputed that
Jackson was shot by the weapon that the jury necessarily found defendant carried or possessed
during the commission of the home invasion. The statute’s use of passive voice is crucial; MCL
777.31(1)(a) does not require a finding that a particular person caused the firearm to be
discharged—rather, it must be scored if the defendant made “use of a weapon” during the
commission of an offense and a “firearm was discharged” at a “human being.” The evidence
concerning the overlapping relevant conduct supported a finding that a firearm “was discharged”
toward Jackson. MCL 777.31(1)(a). Therefore, the trial court was not precluded by the jury’s
acquittals from assigning 25 points under that variable.

The trial court assigned five points under OV 2, which must be done if the trial court found,
in relevant part, that defendant “possessed” a firearm during the commission of the home invasion.
See MCL 777.32(1)(d). The jury found beyond a reasonable doubt that defendant in fact carried
or possessed a gun during the home invasion even though it acquitted him of carrying it concealed.
So, it cannot be said that the trial court improperly scored this variable on the basis of acquitted
conduct.

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Finally, OV 3 provides that the trial court must assess 25 points if it finds that a victim
suffered a “[l]ife threatening” injury during the commission during the commission of the
sentencing offense. See MCL 777.33(1)(c). The overwhelming evidence established that Jackson
suffered a gunshot wound during the altercation at issue and that he required surgery and intensive
care, and defendant does not dispute the trial court’s finding that this injury was life threatening.
There is no reason why the following cannot all be true: defendant did not intend to murder
Jackson; defendant did not conceal a weapon; and Jackson suffered a life threatening injury.
Accordingly, defendant’s argument that the two acquittals necessarily meant that Jackson did not
suffer a life threatening injury is without merit.

V. SUFFICIENCY OF THE EVIDENCE

Defendant next argues in his Standard 4 brief that there was insufficient evidence to
establish that he put anyone in fear of an immediate battery or had the intent to do so, which was
an essential element of the home invasion charge. We disagree.

“Due process requires that a prosecutor introduce evidence sufficient to justify a trier of
fact to conclude that the defendant is guilty beyond a reasonable doubt.” People v Tombs, 260
Mich App 201, 206-207; 679 NW2d 77 (2003). “This Court reviews a challenge to the sufficiency
of the evidence by examining the record evidence de novo in the light most favorable to the
prosecution to determine whether a rational trier of fact could have found that the essential
elements of the crime were proved beyond a reasonable doubt.” People v Clark, 330 Mich App
392, 436; 948 NW2d 604 (2019) (quotation marks and citation omitted). To prove first-degree
home invasion in the context of this case, the prosecutor had to prove that defendant committed a
felony, larceny, or assault while he was wrongfully present in the townhouse. MCL 750.110a(2).
There was no evidence that defendant committed a larceny in the townhouse, and the jury acquitted
defendant of the more serious assault charge and its lesser offense, which were felonies. For that
reason, defendant asserts that the only remaining possibility for establishing this element of home
invasion was simple assault, and he claims that there was no evidence to establish a simple assault.
Defendant’s argument overlooks the fact that the jury might have concluded that defendant brought
the firearm at issue to the townhouse based on Cruz’s testimony that Jackson did not own a gun,
she saw defendant grabbing at his waist, and she almost immediately heard a gunshot. That
evidence, combined with the other evidence, was sufficient to allow the jury to find that defendant
committed a felony while in the townhouse—namely, felon-in-possession. See MCL 750.224f(6)
(classifying felon-in possession as a felony). As such, the jury was not restricted to finding a
simple assault to convict defendant of first-degree home invasion.

VI. SIMPLE ASSAULT INSTRUCTION

In his Standard 4 brief, defendant raises three claims of error involving the trial court’s
response to a jury request for a definition of simple assault. Each claim of error is without merit.

During deliberations, the jury requested a definition of simple assault. The trial court and
the parties all agreed that the jury should be given the simple assault instruction stated under

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M Crim JI 17.1, 10 and the trial court provided a written copy of that instruction to the jury. The
record does not show that the trial court read the instruction to the jury in open court, and, on
appeal, defendant argues that this was an error warranting reversal. Our Supreme Court has stated
that a trial court must instruct the jury orally in open court. See Traver, 502 Mich at 40. However,
our Supreme Court also held that defense counsel can waive the right. Id. at 40-41. The record
clearly demonstrates that Goldstein affirmatively waived defendant’s right to have the jury
instructed orally in open court and agreed that the court should provide M Crim JI 17.1 in writing.
As such, there is no error to review. See Id.

Defendant suggests that the trial court may have given M Crim JI 17.2 rather than M Crim
JI 17.1 on the basis of statements made by the trial court at a hearing that occurred after trial. The
trial court at the later hearing said that it gave the jury an instruction on “simple assault and
battery.” Defendant claims that, because the trial court did not give the instruction to which
Goldstein agreed, the trial court’s error can be reviewed. However, the court unambiguously stated
on the record that it would provide the jury with M Crim JI 17.1. Even assuming that the trial
court’s subsequent statement established that the court gave the assault and battery instruction
rather than the simple assault instruction, that claim of error would be unpreserved because it was
not raised in the trial court, People v Carines, 460 Mich 750, 763; 597 NW2d 120 (1999), and
defendant cannot establish that this alleged instructional error affected the outcome of the trial.11

10
That instruction provides:
(1) The defendant is charged with the crime of assault. To prove this charge,
the prosecutor must prove each of the following elements beyond a reasonable
doubt:
(2) First, that the defendant either attempted to commit a battery on [name
complainant] or did an act that would cause a reasonable person to fear or
apprehend an immediate battery. A battery is a forceful, violent, or offensive
touching of the person or something closely connected with the person of another.
(3) Second, that the defendant intended either to commit a battery upon
[name complainant] or to make [name complainant] reasonably fear an immediate
battery. [An assault cannot happen by accident.]
(4) Third, that at the time, the defendant had the ability to commit a battery,
appeared to have the ability, or thought [he / she] had the ability.
11
For similar reasons, defendant’s corresponding claim of ineffective assistance of counsel is
without merit because we can simply discern no basis upon which to conclude that this
instructional issue could have had an impact on the proceedings’ outcome. Defendant also
maintains that Goldstein should have requested a special instruction telling the jury that it could
only find him guilty of first-degree home invasion if it found him guilty of assault with intent to
murder or assault with intent to cause great bodily harm. Because such an instruction would have
contradicted MCL 750.110a(2), it would have been error for the trial court to give it. Goldstein
cannot be faulted for failing to request a special instruction that was contrary to law. See People
v Knapp, 244 Mich App 361, 386; 624 NW2d 227 (2001).

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Indeed, he does not even attempt to do so. Therefore, defendant cannot carry his burden to
establish plain error, and we reject this argument.

VII. NEWLY DISCOVERED EVIDENCE

For the first time on appeal, defendant argues that Cruz’s affidavit, which was discussed
above, amounts to newly discovered evidence warranting the grant of a new trial. We disagree.

This Court reviews for an abuse of discretion a trial court’s decision on a motion for a new
trial premised on newly discovered evidence. People v Cress, 468 Mich 678, 691; 664 NW2d 174
(2003). A trial court abuses its discretion when its decision falls outside the range of reasonable
outcomes. Clark, 330 Mich App at 432. Defendant did not, however, move for a new trial
premised on newly discovered evidence and did not assert that argument at the evidentiary hearing;
accordingly, this issue is unpreserved. People v Darden, 230 Mich App 597, 605-606; 585 NW2d
27 (1998). Therefore, we review for plain error. See Carines, 460 Mich at 763.

“[M]otions for a new trial on the ground of newly-discovered evidence are looked upon
with disfavor, and the cases where this court has held that there was an abuse of discretion in
denying a motion based on such grounds are few and far between.” People v Rao, 491 Mich 271,
279-280; 815 NW2d 105 (2012) (quotation marks and citation omitted). There is a four-part test
to determine whether a defendant is entitled to a new trial on the basis of newly discovered
evidence.

For a new trial to be granted on the basis of newly discovered evidence, a defendant
must show that: (1) the evidence itself, not merely its materiality, was newly
discovered; (2) the newly discovered evidence was not cumulative; (3) the party
could not, using reasonable diligence, have discovered and produced the evidence
at trial; and (4) the new evidence makes a different result probable on retrial.
[People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003) (quotation marks and
citation omitted).]

Defendant bears the burden to establish each part of this test. Rao, 491 Mich at 279.

“In order to determine whether newly discovered evidence makes a different result
probable on retrial, a trial court must first determine whether the evidence is credible.” People v
Johnson, 502 Mich 541, 566-567; 918 NW2d 676 (2018). The newly discovered evidence upon
which defendant bases his motion for a new trial comes in the form of a recantation. “[W]here
newly discovered evidence takes the form of recantation testimony, it is traditionally regarded as
suspect and untrustworthy.” People v Canter, 197 Mich App 550, 559; 496 NW2d 336 (1992).
“There is no form of proof so unreliable as recanting testimony. In the popular mind it is often
regarded as of great importance. Those experienced in the administration of the criminal law know
well its untrustworthy character.” People v Van Den Dreissche, 233 Mich 38, 46; 206 NW 339
(1925) (quotation marks and citation omitted). For that reason, “[a]s a rule the court is not
impressed by the recanting affidavits of witnesses who attempt to show that they perjured

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themselves at the trial.” People v Norfleet, 317 Mich App 649, 661; 897 NW2d 195 (2016)
(quotation marks and citation omitted).12

There is nothing about this affidavit making stand apart from those upon which this Court
looks with great skepticism. Looking purely at the face of this affidavit, it simply has a list of
statements essentially repeating what defendant has been claiming since his conviction.13 Cruz
asserted the reason she testified that she hadn’t given permission to defendant to enter her home
was “because Dominique did not need me to give permission; he always had that.” Cruz offered
no other explanation for why she purportedly lied at the preliminary examination nor for why she
refused to appear at trial. Additionally, as is discussed above, there was evidence that defendant
discouraged Cruz from appearing at trial or otherwise cooperation with the prosecution. It
therefore stands to reason that he may also have pressured her to sign this affidavit. Because of
the inherit unreliability of recantations, combined with the particular unreliability of this
recantation, it does not justify granting defendant a new trial.

VII. CONCLUSION

We affirm defendant’s convictions and vacate his maximum sentences for the home
invasion conviction and for the felon-in-possession convictions. We remand this case to the trial
court to hold a hearing, at which it will determine whether to enhance the maximum sentences as
permitted by MCL 769.10, or retain the applicable statutory maximums. We do not retain
jurisdiction.

/s/ Colleen A. O’Brien
/s/ Allie Greenleaf Maldonado

12
Those who have practiced in criminal law would likely attest to the fact that recantations in cases
involving intimate partner violence stand out as being particularly suspect.
13
Cruz asserts that defendant was allowed in the townhouse after they broke up, that he had his
mail sent there, that he regularly entered through the basement window without knocking, and that
she would have spoken with defendant’s attorney had he reached out.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9556653. Public record. Not legal advice.