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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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 4, 2021
Plaintiff-Appellee,
v No. 351800
Genesee Circuit Court
ALA ELIA DABISH, LC No. 17-042433-FH
Defendant-Appellant.
Before: SWARTZLE, P.J., and MARKEY and TUKEL, JJ.
PER CURIAM.
Defendant appeals as of right his jury-trial convictions of arson of insured real property,
MCL 750.76(1)(b), and third-degree arson, MCL 750.74. Defendant was sentenced to
imprisonment of one year and five years of probation for each offense. Defendant argues that the
evidence presented at trial was insufficient to prove his guilt beyond a reasonable doubt and that
he was denied the effective assistance of counsel because his trial counsel failed to object to
improper closing arguments by the prosecution. We affirm.
I. UNDERLYING FACTS
This case arises out of a fire at defendant’s business, called “Snack Depot.” Security
footage showed defendant, who was alone in the store, walk behind a curtain and then exit the
store. The fire appeared to start behind the curtain immediately after defendant left. Two expert
witnesses testified for the prosecution that the fire was intentionally set by a human being.
Defendant presented his own expert witness who testified that, while it was possible that defendant
started the fire, it was also possible that a light fixture started the fire. Defendant purchased the
building earlier in the year for $84,000 and had an insurance policy worth more than $1 million.
As discussed above, the jury found defendant guilty of both counts. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
Defendant first argues that the prosecution failed to present sufficient evidence to sustain
his convictions. We disagree.
-1-
A. STANDARD OF REVIEW
A valid criminal conviction requires proof beyond a reasonable doubt of every element of
every crime. People v Jaffray, 445 Mich 287, 296; 519 NW2d 108 (1994). A challenge to the
sufficiency of the evidence to support a criminal conviction presents a question of law subject to
review de novo, People v Herndon, 246 Mich App 371, 415; 633 NW2d 376 (2001), and rests on
constitutional grounds, as “[d]ue process requires the prosecution in a criminal case to introduce
sufficient evidence to justify a trier of fact in its conclusion that the defendant is guilty beyond a
reasonable doubt.” People v Breck, 230 Mich App 450, 456; 584 NW2d 602 (1998).
When reviewing the sufficiency of the evidence in a criminal case, a court must view the
evidence of record in the light most favorable to the prosecution to determine whether a rational
trier of fact could find that each element of the crime was proved beyond a reasonable doubt. Id.
A reviewing court “must consider not whether there was any evidence to support the conviction
but whether there was sufficient evidence to justify a rational trier of fact in finding guilt beyond
a reasonable doubt.” People v Wolfe, 440 Mich 508, 513-514; 489 NW2d 748, amended 441 Mich
1201 (1992) (citation and quotation marks omitted). Our “standard of review is deferential: a
reviewing court is required to draw all reasonable inferences and make credibility choices in
support of the jury verdict.” People v Oros, 502 Mich 229, 239; 917 NW2d 559 (2018) (citation
omitted). “Conflicting evidence and disputed facts are to be resolved by the trier of fact. Minimal
circumstantial evidence and reasonable inferences can sufficiently prove the defendant’s state of
mind, knowledge, or intent.” People v Miller, 326 Mich App 719, 735; 929 NW2d 821 (2019)
(citations omitted). Similarly, “[c]ircumstantial evidence and reasonable inferences that arise from
such evidence can constitute satisfactory proof of the elements of the crime.” People v Kanaan,
278 Mich App 594, 619; 751 NW2d 57 (2008). As such, a conviction based on insufficient
evidence violates due process. See id.
B. ANALYSIS
Third-degree arson is defined by MCL 750.74, which provides, in relevant part:
(1) Except as provided in sections 72 and 73, a person who does any of the
following is guilty of third degree arson:
(a) Willfully or maliciously burns, damages, or destroys by fire or explosive
any building or structure, or its contents, regardless of whether it is occupied,
unoccupied, or vacant at the time of the fire or explosion.
As explained by this Court in People v Nowack, 462 Mich 392, 409; 614 NW2d 78 (2000):
To establish that a defendant acted wilfully or maliciously and voluntarily, the
prosecution must prove one of the following: 1) that the defendant intended to do
the physical act constituting the actus reus of arson, i.e., starting a fire or doing an
act that results in the starting of a fire (intentional arson); or 2) that the defendant
intentionally committed an act that created a very high risk of burning a dwelling
house, and that, while committing the act, the defendant knew of the risk and
disregarded it (wanton arson).
-2-
Consequently, the elements of third-degree arson are: (1) a defendant willfully or maliciously and
voluntarily; (2) burns, damages, or destroys by fire or explosive; (3) any building. MCL 750.74.
Arson of insured real property, MCL 750.76, adds two additional elements to third-degree
arson and provides, in relevant part:
(1) A person who willfully or maliciously burns, damages, or destroys by
fire or explosive any of the following or the contents of any of the following is
guilty of arson of insured property:
* * *
(b) Except as provided in subdivision (a), any building, structure, or other
real property that is insured against loss from fire or explosion if the person caused
the fire or explosion with the intent to defraud the insurer.
Consequently, the elements of arson of an insured dwelling are that a defendant: (1) willfully or
maliciously and voluntarily; (2) burns, damages, or destroys by fire or explosive; (3) any building;
(4) that is insured against loss from fire or explosion; (5) with the intent to defraud the insurer.
MCL 750.76.
It is undisputed that the building was burned and that it was insured. Defendant disputes
the other two elements of the offense, asserting that he did not start the fire and that the prosecution
failed to establish that, even if he had burned the building, he had any intent to defraud his insurer.
Consequently, we review only the contested facts relating to whether he had burned the building
and whether he had fraudulent intent.
The prosecution presented testimony from two expert witnesses that the fire was
intentionally set by a human being. These experts explained that they could not determine certain
facts, including whether an accelerant was used, and the initial source of the fire. Nevertheless,
the prosecution experts were certain that a human started the fire. The prosecution also presented
security footage of defendant walking behind a curtain and then exiting the building. The footage
showed what appeared to be a fire on the other side of the curtain immediately after defendant left.
This evidence was sufficient for a rational jury to infer that defendant intentionally, i.e. willfully,
set the fire.1
1
Defendant asserts that because he had an expert witness who testified contrary to the
prosecution’s expert witnesses that there necessarily was reasonable doubt as a matter of law, and
thus insufficient evidence: “If there were conflicting evidence, and two experts disagree on the
point, that in and of itself is reasonable doubt.” Defendant cites no authority for that proposition,
because it is utterly incorrect:
Of course, appellate courts are not juries, and even when reviewing the
sufficiency of the evidence they must not interfere with the jury’s role:
-3-
“[An appellate court] must remember that the jury is the sole judge
of the facts. It is the function of the jury alone to listen to testimony,
weigh the evidence and decide the questions of fact . . . . Juries, not
appellate courts, see and hear witnesses and are in a much better
position to decide the weight and credibility to be given to their
testimony.” [People v Wolfe, 440 Mich 508, 514-515; 489 NW2d
748 (1992) (citation omitted; alteration in original), amended on
other grounds 441 Mich 1201 (1992).]
“Indisputably, ‘a jury may disbelieve the most positive evidence, even when it stands
uncontradicted.’ ” People v Cain, 238 Mich App 95, 118; 605 NW2d 28 (1999) (citation omitted).
“In short, the jury is free to credit or discredit any testimony,” Kelly v Builders Square, Inc, 465
Mich 29, 39; 632 NW2d 912 (2001), and “[w]ith regard to expert testimony, after the expert has
been properly qualified by the court, credibility determinations are generally handled in the same
manner as for lay witnesses.” People v Yost, 468 Mich 122, 128; 659 NW2d 604, 608 (2003)
(footnote omitted). Thus, juries are instructed, with regard to expert witnesses, that
(1)You have heard testimony from a witness, _____, who has given you [his / her]
opinion as an expert in the field of ________. Experts are allowed to give opinions
in court about matters they are experts on.
(2) However, you do not have to believe an expert’s opinion. Instead, you should
decide whether you believe it and how important you think it is. When you decide
whether you believe an expert’s opinion, think carefully about the reasons and facts
[he / she] gave for [his / her] opinion, and whether those facts are true. You should
also think about the expert’s qualifications, and whether [his / her] opinion makes
sense when you think about the other evidence in the case. [M Crim JI 5.10 Expert
Witness.]
Indeed, the trial judge instructed the jury, without objection from defendant, based on this model
jury instruction, stating:
You have heard testimony from several witnesses who have given you their
opinions as experts in the field of origin and cause of fire investigation. Experts
are allowed to give opinions in Court about matters they are experts on.
However, you do not have to believe in an expert’s opinion. Instead, you
should decide whether you believe it and how important you think it is. When you
decide whether you believe an expert’s opinion, think carefully about the reasons
and facts that he gave for his opinion, and whether those facts are true. You should
also think about the expert’s qualifications, and whether his opinion makes sense
when you think about the other evidence in the case.
“[J]urors are presumed to follow their instructions.” People v Unger, 278 Mich App 210, 235;
749 NW2d 272 (2008). Thus, if the jury rejected defendant’s expert’s testimony, it was entirely
within its rights to do so; and more to the point, for purposes of determining the sufficiency of the
-4-
Furthermore, circumstantial evidence and reasonable inferences that could be drawn from
circumstantial evidence were sufficient for a rational juror to find that defendant intended to
defraud his insurer by setting the fire and burning his building. See Miller, 326 Mich App 719,
735. Defendant acquired the building for $84,000, but had an insurance policy worth more than
$1 million. Moreover, defendant had a conversation with his insurance representatives about his
policy within the month preceding the fire. A jury could reasonably infer from this evidence that
defendant wanted to burn down his building because the insurance proceeds would have resulted
in a substantial profit. Additionally, the lack of any other apparent motive for defendant to set the
fire makes such a finding by the jury more reasonable.
The prosecution offered sufficient evidence for a rational juror to find all of the elements
of the offense, beyond a reasonable doubt: that defendant (1) willfully set a fire in the building; (2)
the fire burned the building; (3) the building was insured; (4) and defendant set the fire to defraud
his insurer. Thus, the prosecution offered sufficient evidence to convict defendant of third-degree
arson and arson of insured real property.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant additionally argues that his trial counsel was ineffective because his trial counsel
failed to object to allegedly improper comments made by the prosecution during closing arguments
that shifted the burden of proof to defendant. We disagree.
A. STANDARD OF REVIEW
Regardless of whether a claim of ineffective assistance is properly preserved, if the trial
court did not hold a Ginther2 hearing, “our review is limited to the facts on the record.” People v
Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000). “A claim of ineffective assistance of
counsel is a mixed question of law and fact. A trial court’s findings of fact, if any, are reviewed
for clear error, and this Court reviews the ultimate constitutional issue arising from an ineffective
assistance of counsel claim de novo.” People v Petri, 279 Mich App 407, 410; 760 NW2d 882
(2008).
B. ANALYSIS
A “defendant has the burden of establishing the factual predicate for his claim of ineffective
assistance of counsel.” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
Effective assistance of counsel is presumed, and the defendant bears a heavy
burden of proving otherwise. To establish an ineffective assistance of counsel
evidence, insofar as expert testimony is concerned, only the prosecution’s expert testimony is
properly considered.
2
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). No Ginther hearing was held in this
case.
-5-
claim, a defendant must show that (1) counsel’s performance was below an
objective standard of reasonableness under prevailing professional norms and (2)
there is a reasonable probability that, but for counsel’s error, the result of the
proceedings would have been different. [People v Lockett, 295 Mich App 165, 187;
814 NW2d 295 (2012) (citations omitted).]
The “reasonable probability” standard can be satisfied by less than a preponderance of the
evidence. People v Trakhtenberg, 493 Mich 38, 56; 826 NW2d 136 (2012). Finally, “[f]ailing to
advance a meritless argument or raise a futile objection does not constitute ineffective assistance
of counsel.” People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).
Defendant argues that his trial counsel’s performance fell below an objective standard of
reasonableness because the prosecutor improperly shifted the burden of proof to the defense during
closing arguments, and defense counsel failed to object. Resolution of this issue requires an
examination of whether the prosecutor’s comments were improper. This Court reviews “claims
of prosecutorial misconduct case by case, examining the remarks in context, to determine whether
the defendant received a fair and impartial trial.” People v Watson, 245 Mich App 572, 586; 629
NW2d 411 (2001). “A prosecutor may not imply in closing argument that the defendant must
prove something or present a reasonable explanation for damaging evidence because such an
argument tends to shift the burden of proof.” People v Fyda, 288 Mich App 446, 463-464; 793
NW2d 712 (2010). Furthermore, it is permissible for the prosecution to make arguments relating
to the credibility of a defendant’s witnesses. People v Dobek, 274 Mich App 58, 67; 732 NW2d
546 (2007). This is true “especially when there is conflicting evidence and the question of the
defendant’s guilt depends on which witnesses the jury believes.” People v Thomas, 260 Mich App
450, 455; 678 NW2d 631 (2004).
Defendant argues that the prosecutor’s comments during closing arguments about
defendant’s expert witness shifted the burden of proof to defendant. We disagree. In closing
arguments, the prosecutor challenged the credibility of defendant’s expert witness by pointing out
that defendant’s expert witness did not write a report explaining his findings in this case; the
prosecutor also criticized defendant’s expert for failing to contact the prosecutor’s expert witnesses
to discuss the fire. While one could argue that these attacks on defendant’s expert in some way
communicated that defendant was required to produce evidence supportive of his position, our
Supreme Court has in fact rejected that argument. See People v Fields, 450 Mich 94, 107; 538
NW2d 356 (1995) (“Arguments regarding the weight and credibility of the witnesses and evidence
presented by defendant do not shift the burden to the defendant to prove his innocence, but rather
question the reliability of the testimony and evidence presented.”). Thus, any objection that the
prosecutor’s comments during closing argument shifted the burden of proof to defendant would
have been futile. Consequently, defendant’s trial counsel was not ineffective for failing to make
such an objection. See Ericksen, 288 Mich App at 201.
-6-
IV. CONCLUSION
There was sufficient evidence to support defendant’s convictions, and he received the
effective assistance of counsel. Consequently, for the reasons stated in this opinion, defendant’s
convictions are affirmed.
/s/ Brock A. Swartzle
/s/ Jane E. Markey
/s/ Jonathan Tukel
-7-