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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 10, 2017

v No. 329996 Washtenaw Circuit Court VINCENT EDWARD DUNLAP, LC No. 13-001157-FH

Defendant-Appellant.

Before: W ILDER , P.J., and B ORRELLO and G LEICHER , JJ.

P ER C URIAM

. A jury convicted defendant, Vi ncent Edward Dunlap, of two coun ts of delivering less than 50 grams of heroin, MCL 333.7401(2)(a)(iv), following two controlled buys with an undercover officer. Defendant claimed mistaken identity and na med his brother, Virgil Dunlap, as the actual perpetrator. On appeal, defendant challenges tri al counsel’s failure to adequately investigate his mistaken identity defense and to present Virgil as a witness. He also contests the sufficiency of the evidence to establish his identity. We affi rm.

I. BACKGROUND

On two separate occasions in 2013, Ypsilanti Police Sergeant Z achary Allen purchased heroin from an individual nickna med “Vito.” Sergeant Allen pai d $50 and $60 for the drugs, which were provided in small amounts folded inside lottery tick ets. After the first transaction, a surveillance team followed the seller back to an apartment.

The day after the second transa ction, Sergeant Allen led a tea m to execute a search warrant at the apartment. Inside, the officers found Virgil Du nlap in the living room and Virgil’s brother, defendant Vincent Edward Dunlap, in a bedroom. Sergea nt Allen recognized defendant as the man who sold him the heroin. Defendant provided his ide ntification to the officers, establishing that he was Vincent Edward Dunlap. Police officer s waited six weeks to arrest defendant, pending laboratory testing of the alleged heroin. I n the meantime, Sergeant Allen authored a report outlining his investigation. In the report, Allen identified the heroin seller as “Virgil Edward Dunlap.” The prosecutor’s office caught the dis crepancy. Allen then prepared a supplemental report identifying defendant by name as the seller . At trial, Allen acknowledged the misnomer in his first report, but emphatically identified d efendant as the individual from whom he purchased heroin.-2- II. ASSISTANCE OF COUNSEL

Defendant contends that trial counsel was ineffective because he failed to interview Virgil and present him as a witness at trial, despite defendant ’s request that he do so. Defendant asserted in an affidavit that he told his attorney “that if his brother was called to testify at his trial he would have testified that he w as the person known as ‘Vito’ and that he did the drug sales.”

A claim of ineffective assistance of counsel is a mixed questi on of fact and constitutional law and we generally review the trial court’s findings of fact for clear error and questions of constitutional law de novo. People v Trakhtenberg , 493 Mich 38, 47; 826 NW2d 136 (2012). However, because this Court denied defendant’s motion to remand for a Ginther 1 hearing, our review is limited to mistakes apparent on the record. See People v Payne , 285 Mich App 181, 188; 774 NW2d 714 (2009).

To merit relief due to ineff ective assistance of counsel, a de fendant must prove: (1) that the attorney made an error, and (2) that the error was prejudic ial to defendant. Strickland v Washington , 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens , 446 Mich 298, 311, 314; 521 NW2d 797 (1994). Specifically, the def endant must demonstrate that counsel’s performance fell below an objective standard of reaso nableness. People v Russell , 297 Mich App 707, 715-716; 825 NW2d 623 (2012). Then, defendant must demonstrate that, but for counsel’s deficient performance , a different result would have been reasonably probable. Id

. Here, even if we assume that counsel’s performance was deficie nt, defendant has not overcome his burden of establishing prejudice. Defendant swore in an affidavit that Virgil would have taken the fall for him on the stand. However, defen dant never presented an affidavit from Virgil describing what testimony Virgil would have actually pr ovided. Defendant’s speculation that his brother would have selflessly inculpated h imself is insufficient to establish entitlement to a new trial.

III. SUFFICIENCY OF THE EVIDENCE

Defendant further contends tha t the prosecution presented insu fficient identification evidence to support his convicti ons. We review challenges to t he sufficiency of the evidence de novo, viewing the evidence “in the light most favorable to the prosecution” to determine whether a rational trier of fact “could have found that the essential e lements of the crime were proven beyond a reasonable doubt.” People v Odom , 276 Mich App 407, 418; 740 NW2d 557 (2007). “Conflicts in the evidence must be resolved in favor of the pro secution,” and “[c]ircumstantial evidence and reasonable inferences arising therefrom may consti tute proof of the elements of the crime.” People v Bennett , 290 Mich App 465, 472; 802 NW2d 627 (2010).

Identity is an element of every criminal offense. People v Yost , 278 Mich App 341, 356; 749 NW2d 753 (2008). “[P]ositive identification by witnesses m ay be sufficient to support a conviction. . . .” People v Davis , 241 Mich App 697, 700; 617 NW2d 381 (2000). The

1 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-3- credibility of that identification testimony “is a question for the trier of fact that we do not resolve anew.” Id

. Sergeant Allen testified that he met defendant on two separate occasions to buy heroin. During both transactions, Allen wa s in close proximity to the s eller. Knowing his identification of the seller would be a crucial piece of evidence, Allen purpo sefully examined the seller’s face to memorize his appearance. When Allen entered the apartment t o execute the search warrant, he was positive defendant was the individual who sold him heroi n, not Virgil. Sergeant Allen asserted that he became confused when drafting his report becau se of the alliteration of names in this case—Vito, Virgil, and Vincent. Accordingly, he accidenta lly combined the name “Virgil” with defendant’s middle name “Edward” in the report. Sergeant Allen rectified this error because he was confident defendant, Vincent Edward Dunlap, was the person who sold him heroin. The jury accepted this evidence and we may not interfe re with that credibility judgment.

We affirm.

/s/ Kurtis T. Wilder /s/ Stephen L. Borrello /s/ Elizabeth L. Gleicher