People of Michigan v. Brent Alan Owings

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 14, 2019
Plaintiff-Appellee,

v No. 340111
Oakland Circuit Court
BRENT ALAN OWINGS, LC No. 2017-262837-FH

Defendant-Appellant.

Before: BORRELLO, P.J., and SWARTZLE and CAMERON, JJ.

PER CURIAM.

A jury convicted defendant of first-degree home invasion, MCL 750.110a(2), and assault
by strangulation, MCL 750.84(1)(b). The trial court sentenced defendant to 10 to 20 years’
imprisonment for the home invasion conviction and 6 to 10 years’ imprisonment for the assault
conviction, to be served consecutively. Defendant appeals as of right, and we affirm.

I. OVERVIEW OF THE FACTS

The jury convicted defendant of breaking into the mobile home of Alexandra Wilhelme
and strangling her during the early morning hours of April 2, 2017. Defendant and Wilhelme
were former romantic partners and they had a daughter together. They continued to see each
other, but at the time of the assault they were no longer involved in a romantic relationship.
Although defendant had been trying to get back together with Wilhelme, she had repeatedly
rejected his attempts.

Wilhelme lived in a mobile home with her three children, her mother Windy Marion, and
a younger sister. On the evening of April 1, 2017, Wilhelme’s brother, Gregory Marion, and his
girlfriend, Jessica Papuga, also stayed at the mobile home. Wilhelme attended a bonfire
gathering that evening. During the evening, she communicated with defendant by text message
and contemplated meeting with defendant later that night. However, Wilhelme denied that she
invited defendant to her home, and denied that she gave defendant permission to enter the home.
After Wilhelme returned home that night, she received a telephone call from defendant, who
wanted to come over to talk about their relationship and possibly getting back together.
According to Wilhelme, she told him that she was going to bed and was not in a state of mind to
discuss their relationship at that time.

After Wilhelme was in bed, she saw defendant inside her home, crouched down behind a
fish tank near Wilhelme’s bedroom door. Defendant then emerged and told Wilhelme that he
was there to talk about their relationship. Wilhelm did not immediately ask defendant to leave,
but after they began to argue, she told defendant to leave and that their relationship was over.
According to Wilhelme, defendant got on top of her and placed his hand on her throat and began
to strangle her, to the point that she was unable to scream or talk. She eventually was able to roll
over, get away from defendant, and scream. At that point, defendant left. Wilhelme ran into the
living room, woke up her brother, and repeatedly told him, “He’s gonna kill me.” Wilhelme’s
screaming also woke up Windy and Papuga. Gregory called the police. Gregory and the police
later discovered footprints in the wet or frozen grass that led from a nearby clubhouse up the
back steps to the home’s rear entrance, which was rarely used.

Photographs of Wilhelme after the incident showed that she had red marks on one side of
her neck and collarbone. Her left arm was also red. For a few days afterward, she told family
members that her throat hurt, that it was difficult to swallow or eat, and her voice was raspy. She
also complained of a headache, and soreness and numbness on one side of her body. At trial,
Wilhelme denied that she had any problems with her throat for more than a day and generally
denied experiencing any other physical ailments after the incident.

II. SUFFICIENCY OF THE EVIDENCE

Defendant argues that the trial court erred by failing to direct a verdict on the first-degree
home invasion charge. He contends that the evidence did not support the charge because there
was insufficient evidence that he did not have permission to enter Wilhelme’s home. We
disagree.

This Court reviews a challenge to the sufficiency of the evidence de novo. People v
Hammons, 210 Mich App 554, 556; 534 NW2d 183 (1995). We must determine whether the
evidence, viewed in a light most favorable to the prosecution, was sufficient to justify a rational
trier of fact in finding the defendant guilty beyond a reasonable doubt. People v Wolfe, 440
Mich 508, 513-515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). “This Court will
not interfere with the trier of fact’s role of determining the weight of the evidence or the
credibility of witnesses.” People v Williams, 268 Mich App 416, 419; 707 NW2d 624 (2005).
“Any conflict in the evidence must be resolved in the prosecutor’s favor.” People v Jackson, 292
Mich App 583, 587-588; 808 NW2d 541 (2011).

In People v Wilder, 485 Mich 35, 43; 780 NW2d 265 (2010), our Supreme Court
identified the elements of first-degree home invasion as follows:

The alternative elements of first-degree home invasion can be broken
down as follows:

Element One: The defendant either:

1. breaks and enters a dwelling or

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 2. enters a dwelling without permission.

Element Two: The defendant either:

1. intends when entering to commit a felony,
larceny, or assault in the dwelling or

2. at any time while entering, present in, or exiting
the dwelling commits a felony, larceny, or assault.

Element Three: While the defendant is entering, present in,
or exiting the dwelling, either:

1. the defendant is armed with a dangerous weapon
or

2. another person is lawfully present in the
dwelling.

Defendant challenges only the first element, arguing that the evidence was insufficient to show
that he did not have permission to enter Wilhelme’s home.

At trial, Wilhelme testified that, before the assault, she and defendant had discussed
defendant’s desire to come over to her house to talk about their relationship. But according to
Wilhelme, when she spoke to defendant on the telephone after she returned home, she explained
that she was going to bed and did not want to discuss their relationship at that time. Although
defendant is correct that Wilhelme admitted at trial that after she ended her conversation with
defendant she “kinda” expected him to show up at her home, she did not testify that she had
invited defendant there or given him permission to enter her home. To the contrary, she made it
clear in her testimony that she did not invite defendant over to the house, and she did not expect
him to be inside her home when she discovered him peeking through the fish tank. Moreover,
the testimony established that defendant did not have free access to the house, and none of the
other occupants had allowed defendant to enter.

The circumstantial evidence also supported a reasonable inference that defendant entered
the home without permission. First, there were footsteps found leading from the complex’s
clubhouse to a rarely used back entrance to the mobile home. Moreover, when Wilhelme
discovered defendant, he was crouched down behind a fish tank outside her bedroom door
around 3:00 a.m. Defendant’s attempt to conceal himself behind a fish tank outside Wilhelme’s
bedroom allowed the jury to infer that defendant knew that he was not supposed to be inside
Wilhelme’s home.

Defendant argues that when denying his motion for a directed verdict, the trial court
inaccurately stated that Wilhelme “unequivocally instructed the defendant that he was not to
come over to the house, that she was done talking about it.” Although defendant takes exception
to the trial court’s use of the word “unequivocally,” the court’s word choice is immaterial
because our review is de novo. As indicated, Wilhelme testified at trial that she told defendant
that she was going to bed and did not want to further discuss their relationship that night, and she

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made it clear that she did not invite defendant to her home. In fact, she testified that she told
defendant multiple times to leave. 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
entered Wilhelme’s home without permission. Accordingly, the trial court did not err by
denying defendant’s motion for a directed verdict.

III. TELEPHONE RECORDINGS

Defendant next argues that a new trial is required because the prosecutor improperly
played several recorded telephone conversations between defendant and Wilhelme at trial.
Defendant argues that it was improper to play those recordings for the jury because they were
offered only for the purpose of refreshing Wilhelme’s memory regarding her conversations with
defendant. Defendant concedes that there was no objection to the introduction of the recordings
at trial, leaving this issue unpreserved. We review unpreserved issues for plain error affecting a
defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130
(1999). An error is plain if it is clear or obvious, and an error affects substantial rights if it is
prejudicial, i.e., if it affects the outcome of the proceedings. People v Jones, 468 Mich 345, 355-
356; 662 NW2d 376 (2003).

At trial, Wilhelme admitted receiving about 144 telephone calls from defendant after he
was arrested, between April 11 and June 8 of 2017. When Wilhelme testified that she could not
remember some of her conversations with defendant, the prosecutor played recorded portions of
some of the calls to refresh her memory. After playing the calls, Wilhelme admitted to having
the conversations with defendant.

The prosecutor offered the recordings under MRE 612, which permits a party to use a
“writing or object to refresh memory,” but that rule does not permit the jury to consider the
content of the material used to refresh a witness’s memory as substantive evidence. People v
Favors, 121 Mich App 98, 109; 328 NW2d 585 (1982). Further, defendant is correct that it is
procedurally improper to publish the substance of the material used to refresh a witness’s
memory to the jury. Id. at 107-109. However, the witness’s refreshed recollection is admissible
as substantive evidence. Id. at 109.

In this case, the recordings were offered for the purpose of refreshing Wilhelme’s
recollection of her conversations with defendant. Defendant’s statements during those
conversations were themselves admissible under MRE 801(d)(2)(A), as admissions by a party-
opponent. As to Wilhelme’s statements during the phone calls, she confirmed their accuracy at
trial, and therefore, they could be considered as substantive evidence. Thus, any procedural error
involving the manner in which the recordings were used to refresh Wilhelme’s memory did not
affect defendant’s substantial rights. Therefore, defendant cannot show prejudice, i.e., that the
outcome of the proceedings would have been different absent the error. Accordingly, defendant
is not entitled to relief with respect to this unpreserved issue.

IV. PROSECUTORIAL MISCONDUCT

Defendant next argues that the prosecutor engaged in misconduct during her questioning
of Wilhelme by referring to her prior conversations with Wilhelme. According to defendant, the

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prosecutor’s references to those conversations were the functional equivalent of improper
testimony and constituted improper vouching for the factual statements mentioned in the
questions. Again, defendant concedes that this issue is unpreserved because there was no
objection to the prosecutor’s questions at trial. Therefore, review is limited to plain error
affecting defendant’s substantial rights. Carines, 460 Mich at 763-764; People v Abraham, 256
Mich App 265, 274-275; 662 NW2d 836 (2003).

The test for prosecutorial misconduct is whether the defendant was denied a fair trial.
People v Bahoda, 448 Mich 261, 266-267; 531 NW2d 659 (1995). Claims of prosecutorial
misconduct are decided case by case and the challenged conduct must be viewed in context.
People v McElhaney, 215 Mich App 269, 283; 545 NW2d 18 (1996). Prosecutorial misconduct
may not be predicated on good-faith efforts to admit evidence. People v Dobek, 274 Mich App
58, 70; 732 NW2d 546 (2007); People v Noble, 238 Mich App 647, 660; 608 NW2d 123 (1999).
The prosecutor is entitled to attempt to introduce evidence that she legitimately believes will be
accepted by the trial court, so long as it does not prejudice the defendant. Id. at 660-661. It is
improper for a prosecutor to express her personal belief regarding evidence or a witness’s
credibility, or to suggest that she has some special knowledge about a witness’s truthfulness.
People v Meissner, 294 Mich App 438, 456; 812 NW2d 37 (2011); People v Thomas, 260 Mich
App 450, 455; 678 NW2d 631 (2004).

Defendant argues that the prosecutor effectively testified as a witness when she referred
to her prior conversations with Wilhelme when questioning Wilhelme about telephone calls
between herself and defendant and why she felt threatened by him. We disagree with
defendant’s argument that the prosecutor’s questions were the functional equivalent of
testimony. The prosecutor’s questions were leading, but that was not improper because
Wilhelme could be characterized as a hostile witness, given that at the time of trial she appeared
to align herself with defendant. MRE 611(d)(3). The use of leading questions is also permitted
to develop a witness’s testimony. MRE 611(d)(1). Although defendant argues that the
prosecutor’s questions allowed her to vouch for her own version of events, the trial court
instructed the jury on what constitutes evidence and specifically stated that “[t]he lawyers’
questions to the witnesses . . . are . . . not evidence” and the questions could be considered “only
as they give meaning to the witnesses [sic] answers.” The court’s instructions were sufficient to
protect defendant’s substantial rights.

In sum, defendant has not established plain error because the prosecutor was not
prohibited from asking leading questions. In addition, the trial court protected defendant’s
substantial rights by instructing the jury that the attorneys’ questions are not evidence.
Accordingly, defendant is not entitled to relief with respect to this unpreserved issue.

V. INEFFECTIVE ASSISTANCE OF COUNSEL

Next, defendant raises several claims of ineffective assistance of counsel. Because
defendant did not raise these claims in a motion for a new trial or request for an evidentiary
hearing in the trial court, our review of this issue 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

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denied the 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 was a reasonable probability that, but for his counsel's
error, the result of the proceeding would have been different. People v Johnson, 451 Mich 115,
124; 545 NW2d 637 (1996).

Defendant first argues that counsel was ineffective for failing to object when the
prosecutor played the recorded telephone conversations between defendant and Wilhelme for the
purpose of refreshing Wilhelme’s memory. As discussed earlier, although it was procedurally
improper for the prosecutor to play the recordings before the jury, Wilhelme confirmed the
accuracy of the conversations, her testimony related to those conversations could be considered
as substantive evidence, and defendant’s statements were themselves admissible as substantive
evidence under MRE 801(d)(2). Under these circumstances, defendant was not prejudiced by
defense counsel’s failure to object.

Defendant next argues that defense counsel was ineffective for failing to object to the
prosecutor’s references to her prior conversations with Wilhelme when questioning Wilhelme at
trial. As explained previously, the prosecutor was not prohibited from asking leading questions.
Therefore, it was reasonable that defense counsel would not object to the questioning. Further,
even without an objection by counsel, the trial court’s instructions made it clear to the jury that
the prosecutor’s questions were not themselves evidence. Accordingly, there is no reasonable
probability that the outcome of defendant’s trial would have been different had counsel objected.

Next, defendant argues that defense counsel was ineffective for failing to raise a hearsay
objection to the testimony of Gregory, Papuga, and Windy regarding Wilhelme’s statements
shortly after the 911 call on the night of the incident. The record does not support this claim. On
the contrary, the record reveals that defense counsel raised a hearsay objection when Gregory
testified regarding Wilhelme’s statements after the 911 call. The trial court overruled the
objection, finding that, because Wilhelme was still under the stress or excitement of the event,
her statements were admissible under the excited utterance exception to the hearsay rule, MRE
803(2). Although counsel did not object when Windy and Papuga testified regarding Wilhelme’s
statements, because the testimony involved the same statements that Gregory had heard and the
trial court had already ruled that the statements were admissible as excited utterances, it was not
objectively unreasonable for counsel to not object again when Windy and Papuga testified.
Given the trial court’s prior ruling, any objection would have been futile. Counsel is not
ineffective for failing to make a futile objection. People v Darden, 230 Mich App 597, 605; 585
NW2d 27 (1998).

We also reject defendant’s argument that counsel was ineffective for failing to object to
testimony from Gregory, Papuga, and Windy that, a couple of days after the incident, Wilhelme
still had a raspy voice and complained about having a sore throat, difficulty eating and
swallowing, having a headache, and suffering from soreness and numbness on the left side of her
body. Wilhelme’s statements describing her physical ailments were admissible under MRE
803(3), the hearsay exception for “a statement of the declarant’s then existing . . . sensation, or
physical condition (such as . . . mental feeling, pain, and bodily health), . . . .” Therefore, any
objection by defense counsel would have been futile. Darden, 230 Mich App at 605.

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 Next, defendant argues that defense counsel was ineffective for failing to object to the
scope of the testimony offered by the prosecution’s expert witness, Diane Zalecki Bertalan, who
was qualified as an expert in the field of forensic nursing, with a focus on strangulation.
Defendant argues that the following testimony exceeded the scope of Bertalan’s expertise:

Q. As far as — counsel was asking you questions about the fact that when
[Wilhelme] was interviewed by the police she said she couldn’t breathe and then
at the exam she said she could lightly breathe.

A. Correct.

Q. And you talked about well, that was later —

A. Right.

Q. — because he said is that significant to you and you said well, that was
later, why is it because it’s later significant to you?

A. Well, it’s important because that’s part of the cycle of domestic
violence. You know, initially, there is the fear, which usually, you know, call
911, I need help, followed by anger, followed by an understanding that, wait a
minute, this is gonna really impact my life, and so individuals start to weigh what
are some of the consequences, and it could be, you know, money, it could be child
care that this person provides, it could be a lot of different things that this person
provides to their life. It could be just the stability of the family. And so it is not
unusual at all that we find victims of domestic violence backtracking a little bit
because of the fact that they start to realize just what the impact will mean.

Bertalan was qualified as an expert in forensic nursing to address strangulation, and she
was also the program director of the forensic nursing program at HAVEN, an agency that serves
victims of domestic violence, where she had worked for almost 11 years. Bertalan testified that
in her role as a forensic nurse, “we are concerned with the medical needs of a patient, and we
also have specialized training in forensics, so we gather evidence and make observations, along
those lines.” Bertalan’s qualification as a forensic nurse with a focus on strangulation was
intertwined with her background and experience in treating victims of domestic violence. We
are not persuaded that the challenged testimony was clearly outside the scope of her expertise.

Moreover, defense counsel had earlier questioned Bertalan about what conclusions could
be drawn from Wilhelme’s testimony at the preliminary examination that she could only
“breathe lightly,” as opposed to being unable to breathe. By asking Bertalan about Wilhelme’s
apparent change in her account of the incident, defense counsel opened the door to Bertalan’s
testimony about the cycle of domestic violence to explain why Wilhelme might have changed
her account. Counsel reasonably may have refrained from objecting for this reason. Moreover,
after Bertalan offered the challenged testimony, defense counsel, on recross-examination,
elicited Bertalan’s admission that her testimony applied to domestic violence cases in general,
and she did not base her testimony on any information available to her in this case. The record
does not support defendant’s claim that defense counsel’s performance with regard to Bertalan’s
testimony was objectively unreasonable.
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 Defendant also asks this Court to remand this case for an evidentiary hearing on his
ineffective assistance claims. We are satisfied, however, that the record is sufficient to address
and decide his claims. Further, defendant has not provided any affidavits or other offers of proof
to explain how he would further develop the record on remand. Therefore, we deny defendant’s
request for a remand. See People v McMillan, 213 Mich App 134, 141-142; 539 NW2d 553
(1995).

VI. OTHER-ACTS EVIDENCE

Next, defendant argues that the trial court erred by allowing the prosecutor to present
evidence of prior incidents of domestic violence between defendant and Wilhelme. We review
the trial court’s decision to admit evidence for an abuse of discretion, but any preliminary
questions of law are reviewed de novo. People v Washington, 468 Mich 667, 670-671; 664
NW2d 203 (2003).

The prosecution presented evidence that on April 3, 2016, Wilhelme contacted the police
when defendant confronted her as she sat in her vehicle, after she had been at a boyfriend’s home
the night before. On April 5, 2016, defendant followed Wilhelme home after he texted her about
why she was not at work (indicating that he was following her), and he then cut her vehicle off in
an attempt to stop her. On March 17, 2017, Wilhelme saw defendant at a bar and then
discovered the next morning that someone had slashed the headboard in her bedroom and stolen
some of her personal items. Defendant later admitted to taking the items. According to
Wilhelme, defendant also later threatened to slash Wilhelme’s boyfriend as he had the
headboard. On March 31, 2017, just a few days before the charged incident, defendant
confronted Wilhelme outside her home after he told her he was at work. When she refused to
talk to him, he attempted to open her car door. He held onto the door when she tried to drive off
and, when she threatened to call the police, he told her that she would be dead before the police
arrived.

The trial court granted the prosecutor’s motion to admit this evidence under MCL
768.27b, as other acts of domestic violence. Unlike MRE 404(b), which prohibits evidence of a
defendant’s other crimes, wrongs, or acts to show the defendant’s propensity to commit a crime,
in cases involving domestic violence, MCL 768.27b permits evidence of prior acts of domestic
violence to show a defendant’s character or propensity for committing the same offense. People
v Railer, 288 Mich App 213, 219-220; 792 NW2d 776 (2010). However, such evidence is still
subject to exclusion under MRE 403 if its probative value is substantially outweighed by the
danger of unfair prejudice. Id. at 220. To determine if evidence should be excluded under MRE
403, a trial court should balance several factors, including

the time required to present the evidence and the possibility of delay, whether the
evidence is needlessly cumulative, how directly the evidence tends to prove the
fact for which it is offered, how essential the fact sought to be proved is to the
case, the potential for confusing or misleading the jury, and whether the fact can
be proved in another manner without as many harmful collateral effects. [People
v Blackston, 481 Mich 451, 462; 751 NW2d 408 (2008).]

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“Unfair prejudice may exist where there is a danger that the evidence will be given undue or
preemptive weight by the jury or where it would be inequitable to allow use of the evidence.” Id.

Under MCL 768.27b, evidence may be admissible against a defendant who has
committed past acts of domestic violence against a “family or household member.” See MCL
768.27b(5). In this case, Wilhelme and defendant qualify as “family” under MCL 768.27b due
to their past dating relationship, the fact that they had lived together, and the fact that they share
a child. MCL 768.27b(5)(b)(ii), (iii), and (iv). The evidence was not inadmissible simply
because the prior incidents did not involve actual physical acts of violence. Under MCL
768.27b(5)(a), domestic violence includes mental harm, attempts to cause physical harm, and
conduct that would cause a reasonable person to feel terrorized, frightened, intimidated,
threatened, harassed. The prior incidents in this case included direct physical confrontations,
threats of physical violence and death, and conduct that would cause a reasonable person to feel
frightened or terrorized.

Moreover, the probative value of the evidence was not substantially outweighed by the
danger of unfair prejudice. The alleged motive for the charged offense was defendant’s anger
that Wilhelme was unwilling to continue a romantic relationship with defendant. The prior
incidents similarly involved defendant’s efforts to re-establish such a relationship with
Wilhelme, and showed how he would become angry or jealous when she refused to do so or
when she pursued a romantic relationship with someone else. The evidence showed a pattern of
escalating intimidating and harassing conduct by defendant against Wilhelme. All of the prior
incidents admitted at trial occurred within a year of the charged offenses. Even though the prior
acts did not involve actual acts of physical violence, the evidence was relevant to show
defendant’s propensity to react violently against Wilhelme when she refused his requests to get
back together. The evidence supported the credibility of her testimony in this case. See People v
Cameron, 291 Mich App 599, 612; 806 NW2d 371 (2011). Further, the evidence of the prior
headboard incident was relevant to show that defendant was able to access Wilhelme’s home.
The trial court also instructed the jury on the limited permissible purpose of the evidence,
thereby alleviating any risk of unfair prejudice. Accordingly, the trial court did not abuse its
discretion by admitting this evidence at trial.

VII. REQUEST FOR COUNSEL

Defendant argues that the trial court erred by denying his midtrial request to adjourn the
trial to afford him an opportunity to consult with another attorney to assist him in deciding
whether to testify. We disagree. This Court generally reviews a trial court’s decision regarding
a defendant’s request for new counsel, or right to counsel of choice, for an abuse of discretion.
People v Mack, 190 Mich App 7, 14; 475 NW2d 830 (1991); People v Akins, 259 Mich App 545,
556; 675 NW2d 863 (2003).

After the prosecution presented its case, but before the defense rested, defense counsel
questioned defendant on the record regarding his decision whether to testify. Defendant
acknowledged that he had discussed the matter with counsel throughout trial, and that he
understood that he had a constitutional right not to testify. When asked whether he wished to
testify, defendant said that he had not made a decision yet, and he asked for an opportunity to
speak with another attorney because he felt “like I could use some more consultation” on that

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issue. Defendant explained that he did not fully understand how testifying might impact the
case, given what he believed were “wishy washy” statements, different witness accounts, and
other issues that came up during trial.

The trial court denied defendant’s request to adjourn trial so that he could consult with
another attorney because of the late timing of his request, defendant had not complained of any
disagreement with appointed counsel’s representation, and defendant had been afforded plenty of
time to discuss the issue with counsel and make a decision as to whether he would testify. The
trial court also observed that new counsel would need to become familiar with the case and the
issues to properly advise defendant, otherwise it could lead to a claim of ineffective assistance of
counsel. The court denied the motion on the grounds that it was “waived, unduly delayed,
negligent and without good cause or prejudice to the defendant.”

Initially, we note that it is unclear whether defendant was requesting the appointment of
new counsel to advise him whether to testify, or was requesting an opportunity to retain counsel
of his own choice for this purpose. Either way, defendant has not demonstrated that the trial
court abused its discretion by denying defendant’s request.

In cases where a defendant is represented by appointed counsel, the defendant must meet
certain standards before new counsel may be appointed. This Court has explained:

“An indigent defendant is guaranteed the right to counsel; however, he is
not entitled to have the attorney of his choice appointed simply by requesting that
the attorney originally appointed be replaced.” Traylor, 245 Mich App at 462
(quotation marks and citation omitted). Substitution of counsel “is warranted only
upon a showing of good cause and where substitution will not unreasonably
disrupt the judicial process.” Id. (quotation marks and citation omitted). Good
cause may exist when “a legitimate difference of opinion develops between a
defendant and his appointed counsel as to a fundamental trial tactic,” when there
is a “destruction of communication and a breakdown in the attorney-client
relationship,” or when counsel shows a lack of diligence or interest. People v
Ginther, 390 Mich 436, 442; 212 NW2d 922 (1973). “A mere allegation that a
defendant lacks confidence in his or her attorney, unsupported by a substantial
reason, does not amount to adequate cause. Likewise, a defendant’s general
unhappiness with counsel’s representation is insufficient.” People v Strickland,
293 Mich App 393, 398; 810 NW2d 660 (2011) (citation omitted). [People v
McFall, 309 Mich App 377, 382-383; 873 NW2d 112 (2015).]

In this case, the trial court did not err by finding that defendant had delayed raising this
issue. Before jury selection began, defense counsel stated on the record that defendant was “still
mulling over his decision of whether or not to testify, when that moment comes, but we’ll
address that at that time.” Defendant did not request an opportunity to consult with another
attorney until after the prosecution had presented its case and rested, and it was time for him to
decide whether to testify. Although defendant argues that the court could have easily adjourned
trial for one afternoon to accommodate his request, as the trial court observed, in order to
properly advise defendant, another attorney would necessarily have to become familiar with the
case and the issues therein. Also, any new attorney would not have had the benefit of having

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heard the prosecution’s witnesses. Therefore, substantial time would have been required for a
new attorney to become familiar with the facts and evidence in the case. Otherwise, as the trial
court noted, allowing defendant to confer with an attorney who was not fully versed in the facts
and issues could lead to a claim of ineffective assistance of counsel. Under these circumstances,
granting defendant’s midtrial request to adjourn trial would have unreasonably disrupted the
judicial process.

Furthermore, the trial court did not abuse its discretion by finding that defendant had
failed to show good cause to warrant the appointment of another attorney. Defendant did not
express any dissatisfaction with appointed counsel’s representation, but rather was simply
undecided about whether to testify. Moreover, defendant had ample time to make that decision.
Defense counsel’s statements on the record before jury selection indicated that they had
discussed the matter before trial, defendant was still contemplating what to do, and defendant
had two full days during trial to make a decision.

To the extent that defendant’s request can be viewed as a request for an opportunity to
retain counsel of his own choice for the purpose of advising him whether to testify, defendant
has also failed to demonstrate that the court abused its discretion by denying his request. In
Akins, 259 Mich App at 557, this Court stated:

“The Sixth Amendment guarantees an accused the right to retain counsel
of choice.” Id. at 80. “However, the right to counsel of choice is not absolute.”
Id. at 84. “ ‘A balancing of the accused’s right to counsel of his choice and the
public’s interest in the prompt and efficient administration of justice is done in
order to determine whether an accused’s right to choose counsel has been
violated.’ ” Id., quoting People v Krysztopaniec, 170 Mich App 588, 598; 429
NW2d 828 (1988).

When reviewing a trial court’s decision to deny a defense
attorney’s motion to withdraw and a defendant’s motion for a
continuance to obtain another attorney, we consider the following
factors: (1) whether the defendant is asserting a constitutional
right, (2) whether the defendant has a legitimate reason for
asserting the right, such as a bona fide dispute with his attorney,
(3) whether the defendant was negligent in asserting his right, (4)
whether the defendant is merely attempting to delay trial, and (5)
whether the defendant demonstrated prejudice resulting from the
trial court’s decision. [People v Echavarria, 233 Mich App 356,
369; 592 NW2d 737 (1999).]

Again, considering that defendant did not identify a bona fide dispute with his appointed
attorney, that he failed to raise the issue until midtrial after the prosecution had rested, and that
an opportunity to consult with new counsel would have substantially disrupted the trial, the trial
court did not abuse its discretion by denying defendant’s request. Further, defendant has not
shown prejudice, given that he does not claim that appointed counsel failed to adequately or
properly advise him with regard to his decision whether to testify.

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 VIII. SENTENCING GUIDELINES

Defendant argues that the trial court erred in scoring offense variables (OVs) 13 and 19
of the sentencing guidelines. Because consecutive sentencing was authorized, the trial court
scored the guidelines for defendant’s convictions of both first-degree home invasion and assault
by strangulation. For each conviction, the court assessed 25 points for OV 13, and 10 points for
OV 19. Defendant challenges each of these assessments.

When reviewing a trial court’s scoring decision, the trial court’s “factual determinations
are reviewed for clear error and must be supported by a preponderance of the evidence.” People
v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “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.

The scoring of OV 13 is governed by MCL 777.43, which provides, in relevant part:

(1) Offense variable 13 is continuing pattern of criminal behavior. Score
offense variable 13 by determining which of the following apply and by assigning
the number of points attributable to the one that has the highest number of points:

* * *

(c) The offense was part of a pattern of felonious criminal activity
involving 3 or more crimes against a person . . . . . . . . . . . . . . . . . . . . . . 25 points

* * *

(2) All of the following apply to scoring offense variable 13:

(a) For determining the appropriate points under this variable, all crimes
within a 5-year period, including the sentencing offense, shall be counted
regardless of whether the offense resulted in a conviction.

Under MCL 777.43(1)(d), only 10 points should be assessed if the offense “was part of a pattern
of felonious criminal activity involving a combination of 3 or more crimes against a person or
property . . . .”

In scoring OV 13, the trial court considered the two sentencing offenses, both of which
are classified as crimes against a person. MCL 777.16d; MCL 777.16f. The trial court also
found that the evidence supported a finding that defendant committed an additional home
invasion approximately three weeks before the charged offenses. According to testimony at trial,
Wilhelme and defendant saw each other at a bar on St. Patrick’s Day in 2017. When Wilhelme
returned home the next day, she discovered that someone had entered her bedroom, slashed the
headboard on her bed, and had taken some of her personal belongings. Defendant later admitted
that he took the items. He also later threatened to slash her boyfriend as he had her headboard.
This evidence supports the trial court’s finding that defendant was responsible for the break-in on
St. Patrick’s Day, and that he committed either a second- or third-degree home invasion, MCL
750.110a(3) and (4)(a), each of which is classified as a felony against a person. MCL 777.16f.

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Although defendant claimed that he had permission to enter Wilhelme’s home that night,
Wilhelme and her mother both claimed otherwise and the circumstances also supported a finding
that defendant was inside the home without permission. A preponderance of the evidence
supports the trial court’s finding that defendant committed a home invasion in relation to the St.
Patrick’s Day incident. Further, it was not necessary that defendant be convicted of home
invasion in relation to that incident for the court to use that conduct when scoring OV 13.
People v Golba, 273 Mich App 603, 614; 729 NW2d 916 (2007). Accordingly, the trial court
did not err in assessing 25 points to OV 13.

MCL 777.49 provides that “[o]ffense variable 19 is threat to the security of a penal
institution or court or interference with the administration of justice or the rendering of
emergency services.” The court is directed to score 10 points for OV 19 where “[t]he offender
otherwise interfered with or attempted to interfere with the administration of justice.” MCL
777.49(c). An offender who does not so interfere should receive zero points. MCL 777.49(d).

The evidence at trial supported the trial court’s assessing 10 points for OV 19. At trial,
the prosecutor introduced recorded telephone conversations between defendant and Wilhelme,
during which defendant attempted to influence Wilhelme’s testimony or dissuade her from
cooperating with the prosecution. There was also evidence that defendant asked his mother to
provide him with a false alibi after he discovered that she had not yet spoken to the police. Such
conduct interferes with the administration of justice. See People v Hershey, 303 Mich App 330,
342-345; 844 NW2d 127 (2013); People v Ericksen, 288 Mich App 192, 203-204; 793 NW2d
120 (2010). Accordingly, the trial court did not err in scoring OV 19.

IX. REASONABLENESS OF DEFENDANT’S SENTENCES

Defendant argues that the trial court imposed an unreasonable sentence for his assault by
strangulation conviction when it exceeded the guidelines minimum sentence range of 29 to 57
months’ imprisonment and sentenced him to a prison term of 6 to 10 years for that conviction.
He also argues that the trial court erred by ordering that his sentences for assault by strangulation
and first-degree home invasion be served consecutively. We disagree.

A trial court’s departure sentence is reviewed for reasonableness by determining whether
the trial court abused its discretion by violating the principle of proportionality, “which requires
sentences imposed by the trial court to be proportionate to the seriousness of the circumstances
surrounding the offense and the offender.” People v Steanhouse, 500 Mich 453, 459-460; 902
NW2d 327 (2017), quoting People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). A trial
court’s decision whether to impose a discretionary consecutive sentence is also reviewed for an
abuse of discretion. People v Norfleet, 317 Mich App 649, 654; 897 NW2d 195 (2016).

In People v Dixon-Bey, 321 Mich App 490, 520-521; 909 NW2d 458 (2017), this Court
explained:

“A sentence that departs from the applicable guidelines range will be
reviewed by an appellate court for reasonableness.” People v Lockridge, 498
Mich 358, 392; 870 NW2d 502 (2015). “[T]he standard of review to be applied
by appellate courts reviewing a sentence for reasonableness on appeal is abuse of

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 discretion.” People v Steanhouse, 500 Mich 453, 471; 902 NW2d 327 (2017). In
Steanhouse, the Michigan Supreme Court clarified that “the relevant question for
appellate courts reviewing a sentence for reasonableness” is “whether the trial
court abused its discretion by violating the principle of proportionality . . . .” Id.
The principle of proportionality is one in which

“a judge helps to fulfill the overall legislative scheme of criminal
punishment by taking care to assure that the sentences imposed
across the discretionary range are proportionate to the seriousness
of the matters that come before the court for sentencing. In
making this assessment, the judge, of course, must take into
account the nature of the offense and the background of the
offender.” [Id. at 472, quoting People v Milbourn, 435 Mich 630,
651; 461 NW2d 1 (1990).]

Under this principle, “ ‘the key test is whether the sentence is proportionate to the
seriousness of the matter, not whether it departs from or adheres to the guidelines’
recommended range.’ ” Steanhouse, 500 Mich at 472, quoting Milbourn, 435
Mich at 661. Part of the Steanhouse Court’s reasoning for adopting the
“principle-of-proportionality test” for reviewing a sentence for reasonableness
was “its history in our jurisprudence.” Steanhouse, 500 Mich at 471.
Accordingly, although the Lockridge Court corrected a constitutional flaw in the
sentencing guidelines by making them fully advisory,

nothing else in [that] opinion indicated we were jettisoning any of
our previous sentencing jurisprudence outside the Sixth
Amendment context. Moreover, none of the constitutional
principles announced in [United States] v Booker [543 US 220;
125 S Ct 738; 160 L Ed 2d 621 (2005)] or its progeny compels us
to depart from our longstanding practices applicable to sentencing.
Since we need not reconstruct the house, we reaffirm the
proportionality principle adopted in Milbourn and reaffirmed in
[People v Babcock, 469 Mich 247; 666 NW2d 231 (2003)] and
[People v Smith, 482 Mich 292; 754 NW2d 284 (2008)].
[Steanhouse, 500 Mich at 473.].

We are not persuaded that defendant’s sentence for the assault by strangulation
conviction, a 15-month departure from the minimum sentence guidelines range, is unreasonable.
The court found that the instant offenses were a continuation of similar offenses committed by
defendant as both an adult and a juvenile, and that defendant had not benefitted from past efforts
at rehabilitation. Defendant had a juvenile record for second-degree home invasion and
malicious destruction of a building less than $200. He also had prior adult convictions for
aggravated assault, assault and battery, and harassment. Although the sentencing guidelines
reflected that defendant had a criminal history, they did not take into account the assaultive
nature of defendant’s prior convictions, or the fact that the instant convictions demonstrated a
continuing pattern of assaultive conduct towards Wilhelme which was escalating in severity.
The court properly recognized that defendant had not benefited from prior attempts to address his

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assaultive conduct and that his assaultive behavior was becoming more serious. Further,
evidence at trial revealed a history of prior acts of domestic violence by defendant against
Wilhelme that did not result in criminal charges. Defendant’s conduct during this case, notably
his attempts to get his mother and Wilhelme to lie for him, also reflected negatively on his
prospects for rehabilitation. Considering these factors in conjunction with the seriousness of the
offense and defendant’s criminal history, it was not unreasonable for the trial court to exceed the
guidelines by 15 months for the assault by strangulation conviction.

Defendant also argues that the trial court abused its discretion by imposing consecutive
sentences. MCL 750.110a(8) provides that “[t]he court may order a term of imprisonment
imposed for home invasion in the first degree to be served consecutively to any term of
imprisonment imposed for any other criminal offense arising from the same transaction.” The
trial court recognized that it had discretion to impose consecutive sentences and invited the
parties’ input on this matter. Ultimately, the court decided that consecutive sentences were
appropriate in light of defendant’s history of similar offenses and the severity of the instant
assault. Given defendant’s history of assaultive conduct, including his history of domestic
violence against Wilhelme, he has not shown that the trial court abused its discretion by
imposing consecutive sentences.

Affirmed.

/s/ Stephen L. Borrello
/s/ Brock A. Swartzle
/s/ Thomas C. Cameron

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