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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 18, 2017

v No. 331182 Wayne Circuit Court HARRELL ROBERT WRIGHT, LC No. 15-007229-01-FC

Defendant-Appellant.

Before: R IORDAN , P.J., and R ONAYNE K RAUSE and S WARTZLE , JJ.

P ER C URIAM

. Defendant appeals as of right his jury trial convictions for a ssault with intent to do great bodily harm less than murder, MCL 750.84, felon in possession o f a firearm, MCL 750.224f, carrying a concealed weapon, MCL 750.227, assault with a danger ous weapon, MCL 750.82, and possession of a firearm during the commission of a felony ( felony-firearm), MCL 750.227b. Defendant was sentenced to 38 to 120 months’ imprisonment for a ssault with intent to do great bodily harm less than murder, one to five years’ imprisonment f or felon in possession of a firearm, one to five years’ imprisonment for carrying a conceal ed weapon, one to four years’ imprisonment for assault with a dangerous weapon, and two years ’ imprisonment for felonyfirearm. We affirm.

This case arises from the assault of the victim while he was d riving on his way home from work. The victim’s first contact with defendant was defen dant using his sport utility vehicle to push the victim into an intersection and then pullin g up beside the victim and pointing a gun at him. The victim called 911 and stopped across the str eet from a gas station, where defendant had stopped, in order to get defendant’s license plat e number. While the victim was on the phone with the 911 operator, defendant sped out of the g as station and again pulled up behind the victim, who had started driving away. While the vic tim was trying to get away from defendant, and while he was still on the phone with 911, defend ant fired shots at the victim. The victim testified that he had never met defendant before this in cident. At trial, the 911 call and video surveillance of defendant at the gas station were admitte d into evidence.

I. PROSECUTORIAL MISCONDUCT

Defendant argues that he was denied a fair trial when the pros ecutor engaged in misconduct by arguing facts not in evidence during his rebuttal closing argument, which went-2- directly to the defense’s theory that, due to the timing of the 911 call and gas station video surveillance, defendant could not have been shooting at the vic tim as described in the 911 call. We disagree.

In his closing argument, defense counsel argued that it was ph ysically impossible for defendant to have followed the victim and fired shots at him be cause the time stamp on the gas station’s video surveillance system shows that defendant was at the station until 11:55 p.m. and the time stamp on the recording of the 911 call describing the incident indicates that the call concluded about 11:53 p.m. In hi s rebuttal closing argument, t he prosecutor gave an example from his personal sailing experience that a person can get a GP S navigation program for his or her cellular telephone that will display two different times, t hose times being GPS time and the time from a cellular telephone tow er. The prosecutor also note d that a VCR and cable box can display two different times. The prosecutor went on to argue t hat there was no te stimony that the gas station video was synced up to the 911 system and that a tw o minute difference does not provide reasonable doubt.

“Defendant failed to object to the comment at trial; therefore , this issue is forfeited unless defendant demonstrates outcome-determinative plain error.” People v Watson , 245 Mich App 572, 588; 629 NW2d 411 (2001). “On plain-error review, the bur den is on the defendant to establish (1) error; (2) that wa s plain, meaning clear or obvio us; (3) and that caused prejudice, meaning that the error affected the outcome of the lower court proceedings.” People v Jones

, ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 332018); slip op at 3 (internal quotation marks and citation omitted). This Court will only re verse where the error resulted in the conviction of an innocent de fendant or it “seriously affect ed the fairness, integrity or public reputation of judicial proceedings independent of the defendant ’s innocence.” Id . “[T]his Court cannot find error requiring reversal where a curative instructi on could have alleviated any prejudicial effect.” People v Bennett , 290 Mich App 465, 476; 802 NW2d 627 (2010) (internal quotation notation and citation omitted).

“A prosecutor may not make a statement of fact to the jury tha t is not supported by evidence presented at trial.” People v Unger , 278 Mich App 210, 241; 749 NW2d 272 (2008). “Although a prosecutor may not argue facts not in evidence or m ischaracterize the evidence presented, the prosecutor may argue reasonable inferences from the evidence.” Watson , 245 Mich App at 588. Prosecutors are generally given a lot of leew ay and are “free to argue the evidence and all reasonable inferences from the evidence as it relates to their theory of the case.” Unger , 278 Mich App at 236. “To determine if a prosecutor’s comment s were improper, we evaluate the prosecutor’s remarks in context, in light of defen se counsel’s arguments and the relationship of these comments to the admitted evidence.” People v Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009).

Defendant has not met his burden to prove the prosecutor erred when he made these comments. A prosecutor is allowed to offer theories based on r easonable inference from the evidence to explain inconsistencies. People v Lee , 212 Mich App 228, 254–55; 537 NW2d 233 (1995); People v Lane , 308 Mich App 38, 67; 862 NW2d 446 (2014) (explaining that a prosecutor was not arguing facts in evidence, but rather, was o ffering a theory where a witness had testified that the victim’s eyes were open, and the prosecu tor argued that a deceased person’s eyes could be open). Furthermore, an “otherwise improper comme nt may not rise to an error-3- requiring reversal when the pros ecutor is responding to the def ense counsel’s argument.” Watson , 245 Mich App at 593 (in ternal quotation marks and citation om itted).

The 911 call and the surveillance video from the gas station w ere admitted into evidence and the jury heard testimony regarding the timing of each of th ese pieces of evidence. The majority of defense counsel’s closing argument was devoted to t he timing of the 911 call versus the gas station surveillance video, and how this proved that de fendant could not have been chasing and shooting at the victim. The prosecutor’s comments were made in rebuttal to defense counsel’s argument, and provided a theory explaining why the ti mestamps on the 911 call and surveillance video may have been inconsistent. The prosecutor was “not required to phrase [his] argument[] in the blandest of all possible terms.” People v Ullah , 216 Mich App 669, 678; 550 NW2d 568 (1996). Therefore, we conclude that the prosecutor’s comments were not plain error.

Moreover, “a timely objection an d curative instruction would h ave been sufficient to alleviate any prejudicial effect of these inappropriate prosecu torial arguments.” Unger , 278 Mich App at 241. Even though defense counsel did not object an d request a curative instruction, the trial court, nevertheless, instructed the jury at the begin ning and end of the trial that the lawyers’ statements and arguments are not evidence. These inst ructions “dispelled any prejudice” to defendant and preclude defendant from meeting his burden to show plain error affecting his substantial rights. People v Bahoda , 448 Mich 261, 281; 531 NW2d 659 (1995).

II. JURY INSTRUCTIONS

Defendant argues that he was denied a fair trial because the t rial court did not follow the model criminal jury instructions , and, instead, gave excessivel y lengthy and unclear instructions, and an inappropriate instruction on specific intent where the m odel instructions state that no instruction is to be gi ven. We disagree.

“[T]his Court has consistently held that an affirmative state ment that there are no objections to the jury instructions constitutes express approva l of the instructions, thereby waiving review of any error on appeal.” People v Hershey , 303 Mich App 330, 351; 844 NW2d 127 (2013) (internal quotation marks and citation omitted). Be cause defense counsel stated on the record that he had no objecti ons to any of the jury instruc tions that the court had just read, and he made no request for the m odel jury instructions, defenda nt has waived appellate review of this issue.

Nonetheless, even had defendant not waived review of this issu e, we would still find no merit in his claim on appeal. “This Court reviews unpreserved challenges to jury instructions for plain error affecting a part y’s substantial rights.” People v Jackson , 313 Mich App 409, 421; 884 NW2d 297 (2015). Again, we not e that, “[o]n plain-error re view, the burden is on the defendant to establish (1) error; (2) that was plain, meaning c lear or obvious; (3) and that caused prejudice, meaning that the error affected the outcome of the l ower court proceedings.” Jones , ___ Mich App at ___; slip op at 3 (internal quotation marks a nd citation omitted). However, even where a defendant meets these three requirements, this Court will only reverse where the error resulted in the conviction of an innocent defen dant or it “seriously affected the fairness, integrity or public reputation of judicial proceeding s independent of the defendant’s innocence.” Id

.-4- MCR 2.512(D)(2) requires that the Model Criminal Jury Instruct ions be used when they (1) are applicable, (2) accurate ly state the applicable law, an d (3) are requested by a party. People v Traver , 316 Mich App 588, ___; ___ NW2d ___ (2016) (Docket No. 325883 ); slip op at 5. There is nothing in the l ower court record to support th at either party requested that the trial court use the Model Criminal Jury Instructions. Thus, the tria l court was not required to use the model instructions.

Even though the trial court was not required to use the model jury instructions, defendant is still entitled “to have a pr operly instructed jury consider the evidence against him.” People v Mills , 450 Mich 61, 80-81; 537 NW2d 909 (1995). Jury instructions s hould be considered as a whole when reviewed for er ror requiring reversal. People v Richardson , 490 Mich 1 15, 119; 803 NW2d 302 (2011). The trial court’s instructions to the jury mu st include all elements for each offense charged. People v Bartlett , 231 Mich App 139, 143; 585 NW2d 341 (1998). The instructions also must not omit material issues, defenses, or t heories that are supported by the evidence. Id . “Even if somewhat imperfect, instructions do not create erro r if they fairly present to the jury the issues tried a nd sufficiently protect defendant ’s rights.” Id . at 143-144.

Defendant argues that the trial court’s jury instructions were not understandable and concise as required for nonmode l instructions. Additionally, d efendant argues that the trial court failed to instruct the jury that a defendant is not required to prove his innocence and that exhibits are evidence, and statements by t he attorneys or the judge are not evidence. We disagree.

The trial court’s instructions to the jury, reviewed in their entirety, adequately presented the issues and elements, and sufficiently protected defendant’s rights. The jury instructions presented the elements of each crime. The trial court instruct ed that defendant was presumed innocent, that defendant was not required to present any eviden ce in his own defense, and that the prosecution had the burden to prove each element of each cr ime beyond a reasonable doubt. The trial court also instructed the jurors that they were to ba se their decision on the evidence, which included witness testimony and exhibits, and that the att orney’s statements were not evidence. While the trial court’s instructions may not have be en at all times concise, they were clear and understandable and addr essed all the areas in which d efendant argues the trial court erred. When read in their entiret y, the jury instructions pres ented all the material issues and defenses to the jury and suffici ently protected defendant’s rig hts.

Defendant also argues that the trial court erred when it gave an instruction for “specific intent,” relying on MCR 2.512(D)(3), People v Maynor , 470 Mich 289; 683 NW2d 565 (2004), and the Committee on Model Jury Instructions’ deletion 1 of the jury instruction for specific intent, CJI2d 3.9, in support of t his argument. Again, we disa gree.
Under MCR 2.512(D)(3), whenever the committee “recommends that no instruction be given on a particular matter, the court shall not give an instr uction unless it specifically finds for

1 Instructions that were deleted by an amendment to the Model Cr iminal Jury Instructions are noted as “[deleted]” next to the title of the former instructio n.-5- reasons stated on the record that” (a) the instruction is neede d to accurately state the law and (b) the issue is not adequately covered by another jury instruction . Defendant argues that MCR 2.512(D)(3) provides guidance for the use of deleted instructio ns. The plain and unambiguous language of MCR 2.512(D)(3), however, does not address deleted instructions; rather, it only requires that an instruction shal l not be given where the commi ttee recommends that no instruction be given.

The committee states that no instruction be given in exactly t wo instructions. In the note to M Crim JI 3.3, which addresse s a defendant’s right not to te stify, the committee states, “If the defendant or counsel requests that no instruction be given, no instruction shall be given.” And, in the note to M Crim JI 7.20, the committee similarly states, “If there is no evidence of selfdefense, no instructions on self-defense should be given.” The se statements make plain that, if a trial court should not give an instruction, the notes to the mo del instructions will expressly state as much. See People v Peltola , 489 Mich 174, 185; 803 NW2d 140, 146 (2011) (“Generally, when language is included in one section of a statute but omitt ed from another section, it is presumed that the drafters acted intentionally and purposely in their inclusion or exclusion.”). That no express restriction pertaining to specific intent is st ated in the notes for assault with intent to do great bodily harm, M Crim JI 17.7, or assault with intent to murder, M Crim JI 17.3, confirms that the committee did not intend to preclude the tria l court from providing an intent instruction.

Further, while defendant relies on Maynor to support his position that the committee’s deletion of CJI2d 3.9 from the Model Criminal Jury Instructions evidences the committee’s intent to preclude the trial court from giving a specific inten t instruction, neither Maynor nor the committee state that giving an instruction on specific intent i s an error. The Maynor court explained that an additional instruction on specific intent is not necessary where the trial court has included the requisite intent needed as an element of a par ticular crime in the jury instructions. Maynor , 470 Mich at 295-297. The committee noted that CJI2d 3.9 was “redundant at best and potential ly confusing at worst.” CJI2d 3.9 (Committee Note). These sources support that an instruction on specific intent is unnec essary, possibly redundant, and potentially confusing; yet, neith er source states that a trial court’s instruction on specific intent that is not redundant or confusing is reversible error. On app eal, defendant has not shown that the trial court’s specific intent instruction improperly stated the law, confused the jury, or otherwise prejudiced his defens e. Accordingly, the trial court ’s instruction was not plain error.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Finally, defendant argues that he was unconstitutionally depri ved of the effective assistance of counsel in that his trial counsel failed to objec t to the prosecution’s improper argument regarding facts not in evidence and that his trial cou nsel failed to object to the nonmodel jury instructions give n by the trial court. We disagr ee.-6- Because, there is nothing in the record to indicate that defen dant requested a new trial or

a Ginther 2 hearing, this issue is unpreserved. People v Petri , 279 Mich App 407, 410; 760 NW2d 882 (2008). “Appellate review of an unpreserved argument of in effective assistance of counsel, like this one, is limited to mistakes apparent on the record.” People v Johnson , 315 Mich App 163, 174; 889 NW2d 513 (2016).

Regarding the prosecutor’s statements in rebuttal, as discusse d above, we are unable to conclude that the prosecutor’s statements were improper or that , even if improper, these statements prejudiced defendant i n any way. Accordingly, trial counsel was not ineffective by not objecting to the pros ecutor’s statements.

Concerning defense counsel’s dec ision not to request the model instructions, while defendant is correct that, had c ounsel requested these instruct ions, the trial court would have been required to provide them, see Traver , 316 Mich App at ___; slip op at 5, as explained above, defendant was not prejudiced by the lack of model instru ctions. Accordingly, defense counsel was not ineffective for not requesting them.

Affirmed.

/s/ Michael J. Riordan /s/ Amy Ronayne Krause /s/ Brock A. Swartzle

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