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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 12, 2015

v No. 318211 Kent Circuit Court WILLIE LEE-WILSON WILLIAMS, LC No. 12-007416-FC; 12-007417-FC; 12-007418-FC; 12-007499-FC; 12-007619-FC; 12-010250-FC Defendant-Appellant.

Before: O’C ONNELL , P.J., and S AWYER and M ARKEY , JJ.

P ER C URIAM

. Defendant appeals by right his c onvictions following two separ ate jury trials. He was sentenced as a fourth-offense habitual offender, MCL 769.12. I n trial I, which included all lower court docket numbers except 12-010250-FC, defendant was convict ed of four separate counts of armed robbery, MCL 750.529, assault with intent to rob while ar med, MCL 750.89, and receiving and concea ling stolen property of a value $1,000 or m ore but less than $20,000, MCL 750.535(3)(a). The trial court sentenced defendant to 30 to 60 years’ imprisonment for each of his four armed robbery convictions, to 30 to 60 years’ imprison ment for his assault with intent to rob while armed conviction, and to 5 to 30 years’ imprisonment for his receiving and concealing stolen property conviction. In trial II, defendant was convict ed of: assault with intent to murder, MCL 750.83, and sentenced to 50 to 100 years’ imprisonment, ass ault of a prison employee, MCL 750.197c, and sentenced to 5 to 30 years’ imprisonment, and escape from jail through violence, MCL 750.197c, and sente nced to 5 to 30 years’ impriso nment. We affirm.

Defendant first argues that he is entitled to a new trial beca use his constitutional and statutory right to be present at both trials was violated. Thi s issue is unpreserve d, and we review it for plain error affecting a defendant’s substantial rights. People v Carines , 460 Mich 750, 763- 764; 597 NW2d 130 (1999).

A defendant has a constitutional right, guaranteed by the Sixt h Amendment, to be present at trial. People v Staffney , 187 Mich App 660, 663; 468 NW2d 238 (1990), citing Illinois v Allen , 397 US 337, 338; 90 S Ct 1057; 25 L Ed 2d 353 (1970). A defe ndant also has a statutory-2- right to be present during trial. MCL 768.3. Only the defenda nt may waive both his constitutional and statutory right to be present during his tri al. People v Buie (On Remand) , 298 Mich App 50, 56-57; 825 NW2d 361 (2012). Waiver requires the i ntentional relinquishment or abandonment of a known right. Carines , 460 Mich at 762, n 7. A defendant may waive his right to be present at trial by (1) be ing voluntarily absent after th e trial has begun, or (2) becoming so disorderly or disruptive that his trial cannot be continued whi le he is present. Buie , 298 Mich App at 57. Similarly, a defendant m ay waive his s tatutory righ t to be present at trial. Id. Thus, a defendant validly waives the righ t to be present at trial when, with specific knowledge of this constitutional right, he or sh e intentionally abandons it. Id. “One who waives his rights under a rule may not then seek appellate review of a claimed deprivatio n of those rights, for his waiver has extinguished any error.” Id. (citation and quotation omitted).

In trial I, although defendant was apprised of his constitutio nal right to be present at trial, he told the trial court that he did not wish to be present. De fendant proceeded to return to his holding cell. Every day of trial, the trial court attempted to secure defendant’s presence. Further, each time defendant was brought into the courtroom, fo r in-court identification purposes, the trial court asked defendant whether he wanted to stay. On each occasion, defendant refused to participate, and he returned to his holdin g cell. The record reflects that having knowledge of his constituti onal right, defendant intelli gently and voluntarily waived his right to be present at trial. A ccordingly, defendant waived hi s constitutional and statutory right to be present at trial I

. Buie , 298 Mich App at 56-57.

In trial II, defendant was not specifically apprised of his co nstitutional right to be present. 1 Where a defendant is not specifically apprised of his right to be present at trial, defendant cannot knowingly waive that right. Id. at 58. Nevertheless, defendant’s absence from trial II does not require reversal because his substantial righ ts were not affected. Carines , 460 Mich at 763.

To show an error affected a defendant’s substantial rights, it is necessary to show prejudice, specifically “that the error affected the outcome of the lower court proceedings.” Id

. In Buie , this Court in a similar situation stated the test for whether defendant’s absence from a part of his trial requires reversal is whether there was any re asonable possibility that his absence prejudiced the defendant. Buie , 298 Mich App at 59.

In this case, nothing in the record supports a finding that th ere was any “reasonable possibility” that defendant was prejudiced by his absence. Id . The evidence of defendant’s guilt was overwhelming. Defendant assaulted a corrections officer, c hoked her to the point of unconsciousness, and attempted to escape. Inmate witnesses con firmed the corrections officer’s testimony. Further, the trial court made every attempt to incl ude defendant in the trial court proceedings. The court, in trial II, asked defendant at the be ginning of each day of trial whether he wanted to participate. Defendant indicated that he did not. The trial court also excused the

1 We recognize that the second trial began four days after trial I ended and that at the beginning of trial II, the trial court referenced defendant’s choice not to attend the first trial. But, defendant was not specifically appraise d regarding his right to be presen t at the second trial.-3- jury before bringing defendant into the courtroom to try to avo id any prejudice that may have resulted from seeing defendant in shackles. Additionally, the trial court instructed the jury not to consider defendant’s absence in coming to a verdict. See People v Benton , 294 Mich App 191, 202; 817 NW2d 599 (2011) (“jurors are presumed to have followed their instructions”). Accordingly, defendant is not entitled to a reversal of his con victions in trial II because there is no reasonable possibility that hi s absence was prejudicial. Buie , 298 Mich App at 59.

Next, defendant argues that the prosecution presented insuffic ient evidence of his specific intent to kill to convict him of assault with intent to commit murder. This Court reviews de novo the sufficiency of the evidence in a criminal case. People v Ericksen , 288 Mich App 192, 195; 793 NW2d 120 (2010). The evidence is sufficient to sustain a c onviction if, when viewed in a light most favorable to the prosecution, it would permit a rati onal trier of fact to find all essential elements of the crime were proved beyond reasonable doubt. Id . at 196.

A conviction of assault with int ent to commit murder requires proving (1) an assault, (2) with the actual intent to kill, and (3) that would make the kil ling murder if successful. People v Brown , 267 Mich App 141, 147; 703 NW2d 230 (2005). Although the pro secution must prove that defendant had the specific intent to kill, minimal circums tantial evidence is sufficient to establish an actor’s state of mind. People v Unger , 278 Mich App 210, 223; 749 NW2d 272 (2008).

While in jail before trial I, defendant assaulted the Kent Cou nty corrections officer, who was working third shift. Defendant requested to use a bathroom outside of his cell, and the officer unlocked defendant’s cell and allowed him to use the ba throom. Thereafter, the officer performed a block check, during which she saw defendant out of his cell. Defendant walked over to the officer, grabbed her by the neck, and choked her un til she lost conscious. He only stopped choking the victim because another inmate broke out of his cell and intervened. When the officer regained consciousness, defendant grabbed her by th e neck and dragged her out of the cell block. He choked her two more times before other correcti ons officers intervened and apprehended defendant.

The record established that defendant choked the officer, and after she was unconscious, defendant continued to choke her. According to the testimony o f several of the inmates, if the victim had not been rescued, she would have died. At trial, an expert testified that there is a high potential of death if a victim is choked for an additional 2 to 5 minutes after losing consciousness. The victim also testified that she thought defe ndant was “going to break her neck.” Viewing the evidence in a light most favorable to the p rosecution, a reasonable jury could have found that defendant intended to kill the victim. A ccordingly, defendant’s assault with intent to murder convict ion was supported by sufficient ev idence.

We affirm.

/s/ Peter D. O'Connell /s/ David H. Sawyer /s/ Jane E. Markey