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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED December 29, 2016

v No. 327669 Wayne Circuit Court TERRELL THORNTON, LC No. 12-004642-01-FC

Defendant-Appellant.

Before: G ADOLA , P.J., and F ORT H OOD and R IORDAN , JJ.

P ER C URIAM

. In 2012, a jury convicted defendant of attempted murder, MCL 7 50.91, and arson of a dwelling house, MCL 750.72(1)(a). In a prior appeal, this Cour t vacated defendant’s convictions and remanded for a new trial because it agreed with the trial c ourt that defense counsel provided ineffective assistance when he failed to investigate an alibi d efense. People v Thornton
, unpublished opinion per curiam of the Court of Appeals, issued May 27, 2014 (Docket No. 313070). Defendant was retried in November 2014 and again conv icted of attempted murder and arson of a dwelling house. He was sentenced to 25 to 50 ye ars in prison for the attempted murder conviction and 10 to 20 years in prison for the arson co nviction, to be served concurrently.

Defendant again appeals as of right. We affirm.

I. FACTUAL BACKGROUND

Defendant’s convictions arise fro m a fire at a Detroit apartme nt building on Springle Street in the early evening on August 9, 2011. I nvestigators c oncluded that the fi re was an arson, discovering that accelerants were used inside the building, nea r the exit. No one died in the fire, but many individuals escaped fro m the building through apartmen t windows and suffered various injuries.

The prosecution’s theory of the case was that defendant attempt ed to murder Jeffrey White because White had renounced a Nation of Islam group that defendant led. There was testimony that defendant threaten ed White in the past and threa tened him again fr om inside a van or SUV, with two other men inside, in front of the apartment bu ilding shortly before the fire. Numerous witnesses te stified regarding the ir observations befor e, during, and after the incident.-2- II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that defense c ounsel provided ineffective ass istance at the second trial by failing to investigat e and present an alibi defense and fail ing to adequately impeach two of the prosecution’s witnesses. We disagree.

A. STANDARD OF REVIEW

Because a Ginther 1 hearing was not held in the trial court following defendant’s s econd trial, our review is limited to errors apparent on the record. People v Jordan , 275 Mich App 659, 667; 739 NW2d 706 (2007). “A claim of ineffective assistance o f counsel is a mixed question of law and fact. A trial court’s findings of fact, if any, are reviewed for cle ar error, and this Court reviews the ultimate constitutional issue arising from an ineff ective assistance of counsel claim de novo.” People v Petri , 279 Mich App 407, 410; 760 NW2d 882 (2008), citing People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002).

Effective assistance of counsel is presumed, and defendant bear s a heavy burden of proving otherwise. To demonstrate ineffective assistance, d efendant must show: (1) that his attorney’s performance fell below an objecti ve standard of reasonableness, and (2) that this performance so prejudiced him that he was deprived of a fair trial. To demonstrate prejudice, the defend ant must show the existence of a reasonable probability that, but for counsel’s e rror, the result of the proceeding would have been different. [ People v Gaines , 306 Mich App 289, 300; 856 NW2d 222 (2014) (quotation marks and citations omitted ).]

B. ALIBI DEFENSE

Defendant first claims that defense counsel was ineffective fo r failing to investigate and present an alibi defense. We disagree.

Defendant raised this argument in his prior appeal, claiming t hat his former defense attorney was also ineffective for failing to investigate an ali bi defense. Thornton , unpub op at 2. This Court agreed and remanded the case for a new trial. Id . at 3-4. However, the record developed after remand does not support defendant’s contention that his newly appointed defense counsel failed to inve stigate an alibi defense.

Before defendant’s second trial, defense counsel filed a notice of intent to claim an alibi defense, identifying four witne sses who may offer testimony tha t defendant was on Olga Street in Detroit, Michigan, at the time of the offense. During the r etrial, however, de fense counsel and defendant stated the f ollowing on the record:

[Defense counsel] : Secondly, we have filed a no tice of intent to claim the defense of alibi. After reviewing[,] considering[,] and weighi ng all the pros and

1 People v Ginther , 390 Mich 436, 443; 212 NW2d 922 (1973).-3- cons, it is also our decision, in consultation with [defendant] , that we not raise the alibi defense.

Am I right, [defendant]?

DEFENDANT : That is correct, sir.

* * *

[Defense Counsel] : Anybody promise anything threaten coerce you in any weapon [sic] to make these d ecisions we just talked about p ut on the record.

DEFENDANT : No sir.

Defendant asserts on appeal that he only agreed to abandon the alibi defense because counsel was unprepared a t retrial to present that theory, but t his claim is inconsistent with defendant’s own statements on the record that he was not coerce d into abandoning the alibi defense. Further, unlike defendant’s first attorney, who faile d to investigate the defense, defendant’s new counsel stated th at he and defendant had review ed, considered, and weighed all the pros and cons of presenting an alibi defense, and defendant expressly confirmed on the record that he agreed with that statement.

Given this evidence, d efendant has not overc ome the strong pres umption that the decision not to present the alibi defense was sound trial strategy, see Gaines , 306 Mich App at 300, as defendant’s wholly unsupported claim that counsel was unprepare d is insufficient to rebut the record evidence confirming that c ounsel investigated the defens e and made an informed decision not to present it. 2

Defendant has failed to establish that he received ineffectiv e assistance on this ground.

C. IMPEACHMENT

Next, defendant argues that counsel was ineffective because co unsel did not use several pieces of evidence to impeach White and Myra Owens, a resident of the apartment complex. Defendant argues that this error is egregious in light of the f act that their credibility was critical in this case because they were the only witnesses who saw defen dant with a gas can. We reject defendant’s claim.

“Counsel may provide ineffective assistance if counsel unreason ably fails to develop the defendant’s defenses by adequately impeaching the witnesses aga inst the defendant.” People v

2 Again, our review is limited to errors apparent on the record . See Jordan , 275 Mich App at 667. We may not consider the affidavits proffered by defendant on appeal, as doing so would constitute an impermissible expansion of the record. See People v Powell , 235 Mich App 557, 561 n 4; 599 NW2d 499 (1999).-4- Lane , 308 Mich App 38, 68; 862 NW2d 446 (2014). However, “[d]ecisi ons regarding whether to call or question a witness are presumed to be matters of tri al strategy.” People v Putman , 309 Mich App 240, 248; 870 NW2d 593 (2015). “We will not substitut e our judgment for that of defendant’s counsel, nor will we use the benefit of hindsight t o assess counsel’s performance.” People v Unger , 278 Mich App 210, 258; 749 NW2d 272 (2008) . “A particular st rategy does not constitute ineffective assistance of counsel simply because it does not work.” People v Matuszak , 263 Mich App 42, 61; 687 NW2d 342 (2004).

First, prosecution witness White testified that he was approac hing the apartment building to visit his soon-to-be mother-in-law, Brenda Andrews, when an SUV driven by defendant approached him. Defendant spoke to White, and a man in the bac kseat of the vehicle cocked a gun during the encounter. Defenda nt argues that counsel should have cross-examined White and the reporting officer about White’s statement to the police tha t the encounter actually occurred as he was leaving the apartment building. At the first trial, for mer defense counsel elicited testimony from Officer Anthony Murray that White told him that he saw defendant as he walked out of the building. When prior counsel asked White about the police statement, he explained that he talked to a lot of officer s, he denied that he explaine d the encounter as it was written in the report, and he noted that he d id not write the statement hi mself.

Defendant cannot establish that his new attorney unreasonably failed to develop defendant’s defenses by failing to impeach White with his previ ous statement to the police. The record shows that, in the altern ative, defendant’s new counsel elicited testimony from White that he was not sure, in some instances, what he told the police, an d that it is possible that he did not mention seeing defendant with a gas can until about a year afte r the fire. Counsel also elicited testimony from White that he had a cellular phone, but did not personally call the police after he was threatened outside the apart ment building. In addition, co unsel questioned whether White was just after a Crime Stoppe rs’ reward in this case.

Counsel also pursued other theories to impeach White’s credibi lity. To attack the theory that defendant targeted White f or leaving the Nation of Islam, counsel elicited testimony from White that he did not call the police when defendant had threat ened him in the past and that he failed to obtain a personal protection order. In addition, as discussed further below, counsel attempted to establish that White blamed defendant in order to avoid being investigated as the true perpetrator of the arson. For example, counsel offered ot her-acts evidence establishing that White had lied in the past by using an alias. Defense counsel also elicited testimony that White smoked marijuana, and that it was not uncommon for him to carry a lighter. Moreover, counsel questioned White regarding whethe r he told medical professional s that he burned himself
, indicating that the fire occurred due to his own acts. Additio nally, counsel elicited testimony that White could have been described as “stocky” at the time of the fire, and that Owens described the perpetrator as “st ocky.” The defense also evokedtestimony that White was familiar with the general layout of the building and that he ha d a friend drop him off a distance away, from which a jury could in fer that his behavior was suspi cious and not simply a visit to his future mother-in-law. On this r ecord, given defense counsel’s attempted impeachment of White through numerous other means, defendant has failed to demonstra te that defense counsel’s decision not to impeach White with one prior inconsistent state ment from a police report was an unsound trial strategy. See Putman , 309 Mich App at 248; Lane , 308 Mich App at 68-5- In addition, defendant argues that counsel should have impeach ed Owens with her prior police statement that the perpe trator was wearing a black t-shi rt on the day of the fire. Defendant fails to recognize that counsel est ablished through cross-exami nation that Owens was confused about the perpetrator’s clothi ng. He elicited from Owens that she thought that she saw defendant wearing a white t-shirt when he entered the apartment building, but was wearing a blue t-shirt when he left. Defendant cannot e stablish that counsel’s strate gy fell below an objective standard of reasonableness on this basis. See Gaines , 306 Mich App at 300.

Defendant also argues that counsel should have impeached Owens with her prior testimony that defendant arrived around 9:00 a.m. when she repe atedly testified on crossexamination at the second trial that she was not sure when he arrived. However, defense counsel elicited testimony from Owens that she could not remember the t ime at which defendant arrived, and counsel may have believed, in a reasonable exercise of tria l strategy, that leaving this testimony untouched would generate more doubt in the minds of t he jurors than impeaching Owens with a prior inconsistent statement that specifically ide ntified the timi ng of the day’s events. See Putman , 309 Mich App at 248. Further, while defendant claims that es tablishing that Owens saw him earlier in the day would contradict the othe r witnesses’ testimony—which placed defendant at the apartment building only at the time of the fire—to such an extent that the jury would find her testimony unbelievable, Owens was the only witness to testify that she spent the whole day looking out the w indow at Springle Street. There fore, she was the only witness with an opportunity to see defe ndant earlier in the day. Furth er, as the prosecution argues, focusing on Owens’ testimony that defendant was at the apartmen t the whole day may have increased the risk that the jury would believe her testimony th at defendant wore two different shirts and had time to change, as she claimed.

Most importantly, counsel pursu ed alternative methods to impea ch Owens’ credibility. Counsel elicited testimony that: (1) she thought that defendant’s vehic le was green while other witnesses testified that it was silver or white; (2) she could not rememb er any additional details about the other men in the vehicle besides their race; (3) she only repor ted her observations to the authorities when officers visited her months after the fire; an d (4) she did not know defendant’s height or hairstyle and testified that he did not have any faci al hair. Given this vigorous crossexamination, defendant cannot est ablish that counsel unreasonab ly failed to develop the defense that Owens’ observations w ere not credible. See Gaines , 306 Mich App at 300.

Lastly, it is noteworthy, in the words of the prosecutor at th e Ginther hearing after the first trial, that defendant’s former counsel was “almost overly aggressive” in his crossexamination of the witnesses, and he made—or at least attempted to make—“mincemeat” out of Owens. It is apparent that this aggressive cross-examination s trategy was not successful during the first trial, and the same lines of questioning that defenda nt claims that his new counsel should have pursued while cross-examining White and Owens were, in fac t, pursued by his former counsel in the first trial, whic h resulted in defendant’s convi ction.

Accordingly, we conclude that de fendant has failed to establish the requisite prejudice to substantiate his ineffective assistance claims. See Gaines , 306 Mich App at 300. Moreover, given this record, defendant cannot overcome the strong presump tion that, on retrial, his new counsel made a strategic decision to strike a careful balance b etween impeachment and bullying. “That the strategy [defense counsel] chose ultimately failed do es not constitute ineffective-6- assistance of counsel.” People v Kevorkian , 248 Mich App 373, 414-415; 639 NW2d 291 (2001)

.

III. MOTION TO SUPPRESS OWENS’ IDENTIFICATION

Next, defendant argues that the trial court should have grante d his motion to suppress Owens’ in-court identification. We disagree.

A. STANDARD OF REVIEW

“A trial court’s determination in a suppression hearing regardi ng the admission of identification evidence will generally not be reversed unless c learly erroneous. Issues of law relevant to a motion to suppress are reviewed de novo. Clear e rror exists when the reviewing court is left with a definite and firm conviction that a mistak e was made.” People v McDade
, 301 Mich App 343, 356; 836 NW2d 266 (2013).

B. ANALYSIS

In the trial court, the parties stipulated that the prosecutio n may not present evidence of Owens’ identification of defendant in a photographic lineup at a time when defendant was already in custody, as using a photographic lineup at that time was improper. See People v Kurylczyk , 443 Mich 289, 298; 505 NW2d 528 (1993) (“Subject to certain e xceptions, identification by photograph should not be used where the accus ed is in custody.”) (quotation marks, citation, and emphasis omitted). In general, if a witne ss identifies a defendant through an improper pretrial identification procedure, the prosecution mus t establish an independent basis for any subsequent in-court id entification of the defendant by that witness. See People v Kachar
, 400 Mich 78, 92-94; 252 NW2d 807 (1977). Courts should conside r the following factors when determining whether an independent basis exists for the admissi on of an in-court identification: (1) the witness’s prior knowledge of the defendant, (2) the wit ness’s opportunity to observe the perpetrator during the crime (including the duration of the obs ervation, the lighting, any noise or other factors affecting sensor y perception, and the proximity t o the alleged criminal act), (3) the length of time between the crime and the disputed identificatio n, (4) discrepancies between the pretrial identification descrip tion and the defendant’s actual appearance, (5) any prior proper identification or failure to id entify the defendant, (6) any pr ior identification of another as the perpetrator, (7) the mental stat e of the witness at the time of the crime (considering factors such as fatigue, nervous exhaustion, i ntoxication, and the age and i ntelligence of the witness), and (8) any special features of the defendant. People v Gray , 457 Mich 107, 116; 577 NW2d 92 (1998), quoting Kachar , 400 Mich at 95-96. Courts will also consider the witness’s l evel of certainty at the prior identification. See Kurylczyk , 443 Mich at 306; People v Colon , 233 Mich App 295, 304-305; 591 NW2d 692 (1998). The inqui ry focuses on the total ity of the circumstances. Gray
, 457 Mich at 115. 3

3 On appeal, defendant argues that the trial court misapplied co ntrolling law by failing to determine if Owens had an independent basis for her in-court id entification before concluding-7- The trial court properly admitted Owens’ in-court identificati on of defendant, as it is clear from the record that Owens had an independent basis for the ide ntification that was untainted by the improper pretrial procedure. 4 Multiple factors suppor t this conclusion.

First, the testimony at the first trial demonstrated that Owens had an extended opportunity to observe defendant. Owens liv ed in the first-floor apartment in the front of the building. Owens testified that she had not hing to do on the day of the fi re—which began as a rainy day but grew more pleasant as the hours passed—so she sat in a chair an d looked out her front window. Thus, she had an opportunity to observe defendant repeatedly, i n daylight, when he first arrived and entered the building, when he left after Owens heard an arg ument between two men, and again, closer to 6:00 p.m., when he exited the building with a gas can. As the prosecutor emphasized at the motion hearing, defendant was only a short di stance away from where Owens was watching when he entered and exited the building. Moreover , as defendant ran with the gas can toward Warren Avenue, Owens kept her eyes on him for about half a block. 5 Owens’

that the fact that her identific ation occurred months after the fire was relevant to the weight, and not the admissibility, of her i n-court identification. The tri al court did not expressly restate the Kachar “independent basis” standard when it admitted the in-court iden tification, but it is overwhelmingly apparent from the parties’ arguments and the tri al court’s questions on the record that the court understood that this standard was at issu e.

4 Defendant argues that the trial court erred by failing to hold an evidentiary hearing to review Owens’ testimony outside the presence of the jury, and that we should remand for such a hearing. Defendant relies on Gray , which stated that an evident iary hearing is required if counsel was not present at the pr etrial identification or if th e pretrial identification procedures were unnecessarily suggestive or conductive to irreparable misi dentification. Gray , 457 Mich at 115, quoting People v Anderson , 389 Mich 155, 169; 205 NW2d 461 (1973) , overruled in part on other grounds People v Hickman , 470 Mich 602, 603; 684 NW2d 267 (2004). Here, however, defendant did not contest Owens’ pretrial identification or in- court identification based on those types of circumstances. Further, in Anderson , 389 Mich at 169, the Suprem e Court explained, “ If the record is not complete and a determination either way cannot be made, the court shoul d vacate the conviction and remand to the trial court for a heari ng on the issue.” (Emphasis added.) Most notably, in People v Johnson , 202 Mich App 281, 287; 508 NW2d 509 (1993), this Court explained, “We do not believe that a defendant is entitle d to an evidentiary hearing where the defendant fails to support th e allegation of impropriety wi th factual support or where it is clear from the record that such a hearing would be futile in light of s ubstantial evidence that there exists an independent basis for the identification .” (Emphasis added.) We agree with the prosecution tha t the record was more than suf ficient to decide the issue at the time of the pretrial mo tion to suppress because Owens al ready had testified at the first trial. Although defendant claims that certain facts were not presented to the trial court when it considered the motion to suppress, the trial court stated that it took judicial notice of the entire record from the earlier trial. Accordingly, an evidentiary hearing was not necessary, and remand for an evidentiary hearing is not warranted.

5 Defendant attempts to undermine Owens’ testimony that she saw defendant throughout the day by arguing that other witnesses only saw him at the apartment b uilding at the time of the fire. However, again, Owens was the only witness to testify that she spent the whole day looking out-8- opportunity to observe defendant weighed in favor of finding anindependent basis for the incourt identification.

The record at the first trial demonstrated that Owens’ descrip tion to police was corroborated by other witnesses’ accounts and defendant’s actua l appearance. Defendant is a 5’4” black man who, according to the lower court file, weighed 140 pounds. Owens accurately told the police that defendant was short, with a heavyset or me dium build, and was “dark complected.” Owens estimated that defendant was between 20 and 30 years old, and he was 32 years old at the time of the fir e. Owens reportedly saw defend ant in different clothing throughout the day, but suspected that he had changed. Just li ke several other witnesses, Owens saw defendant exit a van or S UV with out-of-state plates. 6

Additionally, Owens’ confidence in the identification, her prev ious identification of defendant, and the fact that sh e never identified anyone else a s the perpetrator further weigh in favor of finding that an independent basis existed for the in-c ourt identification. Owens confirmed at the first trial t hat she was 100 percent certain o f her identification, stating that there was “no doubt” in her mind. Additionally, when she viewed the photographic array, which nobody argues was inherently sugg estive (only conducted at an i mproper time when defendant could have participated in a live lineup), she positively ident ified defendant. There is no evidence that Owens ever identif ied someone other than defendan t as the perpetrator.

Because Owens had an opportunity to observe defendant before t he fire, there is no indication that her identificati on was impaired by fear or othe r emotions related to the fire. Moreover, Owens testified that because she did not know defenda nt, she had no biases against him. Although defense counsel argued at the motion hearing tha t Owens was “in advanced years,” she was only in her mid-50s when the fire occurred, and there is no evidence that her age affected her observations. Thus, Owens’ mental state weighed i n favor of finding an independent basis for the in -court identification.

Some factors weighed against a finding of an independent basis . Owens did not know defendant and had never seen him before the day of the fire. I n addition, Owens’ initial statement to the police and iden tification of defendant occurre d months after the fire. However, the prosecutor explained that the delay occurred because Owens sought medical treatment on the day of the fire and the investig ation of witnesses was stalled due to the fact that the witnesses were displaced from the gutted apartment building. And, again, even though Owens had not
the window at Springle Street. Thus, she was the only witness who had an opportunity to see defendant earlier.

6 On appeal, defendant focuses on one discrepancy between Owens’ report and testimony—she did not tell the police that she saw defendant with a gas can. She first mentioned this observation at the first trial. On cross-examination at the first trial, O wens acknowledged the discrepancy and, in the same line of questioning, admitted that she heard W hite talking about the case. But on redirect examination, Owens testified that White did not tel l her what to say at trial and she confirmed that her testimony consisted of what she saw “with [h er] own eyes.” Despite Owens’ omission, the overall consistency of Owens’ reporting of defend ant’s appearance and the crime weighed in favor of finding an inde pendent basis for the in-court identification.-9- seen defendant previously, she had an extended opportunity to s ee him throughout the day of the fire.

In considering all of these circumstances, see Gray , 457 Mich at 115, we are not left with a definite and firm conviction that the trial court clearly err ed when it denied defendant’s motion to suppress because the testimonial record made at the first tr ial established that Owens had an independent basis for her in -court identification. See McDade , 301 Mich App at 356.

IV. JURY INSTRUCTION

Lastly, defendant argues that t he trial court erred by denying his request for a jury instruction based on his defense theory that evidence admitted at trial indicated that White was the actual perpetrator. Even if the trial court erred, reversa l is not warranted.

A. STANDARD OF REVIE W AND APPLICABLE LAW

“Claims of instructional error are generally reviewed de novo by this Court, but the trial court’s determination that a jury instruction is applicable to the facts of the case is reviewed for an abuse of discretion.” People v Dobek , 274 Mich App 58, 82; 732 NW2d 546 (2007).

“A defendant in a criminal trial is entitled to have a properly instructed jury consider the evidence against him or her.” Id. It is the trial court’s duty to instruct the jury on the law applicable to the case. MCL 768.2; Dobek , 274 Mich App at 82. “Jury i nstructions must include all the elements of the offenses charged against the defendant and any material issues, defenses, and theories that are supp orted by the evidence.” Dobek , 274 Mich App at 82. See also People v Riddle , 467 Mich 116, 124; 649 NW2d 30 (2002) (“When a defendant requ ests a jury instruction on a theory or defense that is supported by the evidence, the t rial court must give the instruction.”). However, an instruction must be supported by arational view of the evidence. People v Pinkney , ___ Mich App ___, ___; ___ N W2d ___ (2016) (Docket No. 325856 ); slip op at 9.

“Even if the instructions are somewhat imperfect, reversal is n ot required as long as they fairly presented the issues to be tried and sufficiently protec ted the defendant’s rights.” Id

. (quotation marks and citation omitted). Additionally, in Riddle , 467 Mich at 124-125, the Michigan Supreme Court explained:

[I]f an applicable instruction was not given, the defendant bea rs the burden of establishing that the trial court’s failure to give the request ed instruction resulted in a miscarriage of justice. The defendant’s conviction will n ot be reversed unless, after examining the nature of the error in light of the weight and strength of the untainted evidence, it a ffirmatively appears that it is more probable than not that the error was outcome determinative.

B. ANALYSIS

It is unnecessary to determine whether the requested instructi on was supported by a rational view of the evidence. Even if we assume, without deci ding, that the trial court erred by failing to provide the instructi on, the error was not outcome d eterminative.-10- Defendant’s defense theory that Smith started the fire was clea r from defense counsel’s arguments and questioning of the w itnesses during the trial. H owever, the evidence negating this theory was overwhelming. Althoug h one officer observed that Wh ite ran, while on fire, from the burning building—which, according to the defense, demonstrated consciousness of guilt—White testified that he was not fleeing the scene, but, instead, was trying to escape from the fire and save his life. Law enforcement officers testified that it is c ommon for individuals to run away from a burning building and common for people burned in a fire to run for cover. Additionally, Chief Charles Simms also testified that the officers’ reports t o him did not “give any type of inclination that [White] was running from them.” When White wa s ordered to come out from some bushes (in which he had been rolling in order to extinguis h the fire on himself), he followed the order.

Additionally, although a medical r eport stated that White’s pri mary complaint was, “I burned myself,” White testified that he did not make that state ment in an interview, and the other, more detailed medical records explained that White repor ted that someone set fire to the building and White thought he was the target. White’s injuries also were consistent with his description of his escape from t he apartment building. Specifi cally, his burns were consistent with a defensive posture, and the presence of carbonaceous stai ning on his mouth was consistent with running in a burning building and inhaling smoke. Further , Chief Simms testified that White’s burns were not consistent with someone who set a fire. Normally, people he has arrested who have set fires have lower-extremity burns.

Chief Simms also testified that White was never a suspect in t his case. There was no physical evidence that the fire was ignited near Andrews’ apartment, where White had been present immediately before the f ire. In addition, Chief Simms testified that paramedics customarily alert the arson department if they transport someon e who smells like gasoline, and the paramedics made no such report about White.

It is noteworthy that defense c ounsel expressly argued during h is closing argument that it was likely, based on the prosecutio n’s evidence, that White sta rted the fire. Subsequently, the trial court instructed the jury that defendant enjoyed a presum ption of innocence and that the prosecutor had the burden of proof . The jury was told that “[t ]his presumption continues throughout the trial and entitles the Defendant to a verdict of not guilty, unless you are satisfied beyond a reasonable doubt that he is guilty.” The trial court instructed the jury that defendant was not required to prove his i nnocence or “to do anything.”

Despite defense counsel’s closing argument and the trial court’ s instructions, the jury still found defendant guilty. Given the overwhelming evidence agains t White’s guilt, defendant cannot establish that it is more probable than not that any ref usal to provide the requested instruction concerning his defense theory was outcome determina tive. See Riddle , 467 Mich at 124-125.

V. CONCLUSION

Defendant has failed to establi sh that any of his claims on app eal warrant relief.-11- Affirmed.

/s/ Michael F. Gadola /s/ Karen M. Fort Hood /s/ Michael J. Riordan