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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

September 19, 2017

v No. 330405

Ingham Circuit Court

DEREK AARON RIVERA, LC No. 15-000280-FC

Defendant-Appellant.

Before: HOEKSTRA, P.J., and METER and K. F. KELLY, JJ.

PER CURIAM.

Following a jury trial, defendant appeals as of right his conviction of second-degree 

murder, MCL 750.317. For the reasons explained in this opinion, we affirm.

This case arises from the death of Terry Alber. At the time of Alber’s death, Alber and 

defendant were both homeless, and they spent time with several other individuals at a shack 

behind the Volunteers of America building in Lansing. Defendant and Alber had a history of 

conflict stemming from defendant’s jealousy of Alber’s friendship with Mersaides Schmit, 

defendant’s former girlfriend. According to the evidence introduced at trial, on the night of May 

3, 2014, in front of witnesses at the shack, defendant beat Alber. He punched him, hit him 

(possibly with a golf club), and stomped and kicked him in the head. The evidence suggested 

that Alber did not immediately die from this beating. Instead, he went to sleep outside the shack. 

He later awoke, took a few steps, and then fell to the ground. A few minutes later, one of the 

other men shook Alber as though to wake him and discovered that Alber was dead. The 

prosecution’s expert, forensic pathologist Dr. John Bechinski, detailed Alber’s numerous 

injuries, including at least 9 blows to the head, and he opined that Alber died from blunt force 

trauma to the head. More specifically, Bechinski explained that blows to the head caused 

subdural and subarachnoid bleeding, that Alber could have lived with this bleeding for minutes 

or hours, and that it was this bleeding that led to death. In contrast, the defense presented an 

expert, forensic pathologist Dr. Ronald Horowitz, who opined that Alber died from falling and 

hitting his head on a cinder block. Defendant was charged with open murder, and the jury 

returned a verdict of second-degree murder. Defendant now appeals as of right.

I. OTHER ACTS EVIDENCE

On appeal, defendant argues the court abused its discretion by admitting other-acts 

testimony from Schmit and Angela Lewis, both of whom testified about other physical assaults 
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perpetrated by defendant. Defendant argues that this evidence was improper propensity evidence 

and that, given the violent nature of the assaults, the prejudicial effect of this evidence 

outweighed any probative value.

“The decision whether to admit evidence is within the discretion of the trial court and 

will not be disturbed on appeal absent a clear abuse of discretion.” People v Aldrich, 246 Mich 

App 101, 113; 631 NW2d 67 (2001). “The trial court abuses its discretion when its decision falls 

outside the range of principled outcomes or when it erroneously interprets or applies the law.” 

People v Lane, 308 Mich App 38, 51; 862 NW2d 446 (2014). “When the decision involves a 

preliminary question of law however, such as whether a rule of evidence precludes admission, 

we review the question de novo.” People v Mardlin, 487 Mich 609, 614; 790 NW2d 607 (2010).

“As a general rule, evidence of other crimes, wrongs, or acts of an individual is 

inadmissible to prove a propensity to commit such acts.” People v Kelly, 317 Mich App 637, 

643; 895 NW2d 230 (2016) (citation and quotation marks omitted). However, the evidence may 

be admitted for other purposes under MRE 404(b)(1), such as proof of motive or intent. When 

evidence is introduced under MRE 404(b), it must satisfy a four-pronged standard:

First, that the evidence be offered for a proper purpose under Rule 404(b); second, 

that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the 

probative value of the evidence is not substantially outweighed by unfair 

prejudice; fourth, that the trial court may, upon request, provide a limiting 

instruction to the jury. [People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 

(1993), amended 445 Mich 1205; 520 NW2d 338 (1994).] 

In this case, the trial court admitted the other acts evidence in question as evidence of 

whether defendant “had a reason to commit the crime,” i.e., motive, and whether defendant 

“specifically meant to commit the crime,” i.e., intent. Both motive and intent are proper 

purposes under MRE 404(b). Moreover, the other acts evidence in question was logically 

relevant to these purposes. See People v Crawford, 458 Mich 376, 388; 582 NW2d 785 (1998). 

The jury was instructed on first-degree murder which requires a premediated intent to kill the 

victim that may be shown from all the facts and circumstances surrounding the killing, including 

the prior relationship of the parties, a preconceived motive, and a defendant’s conduct after the 

crime. People v Orr, 275 Mich App 587, 591; 739 NW2d 385 (2007); People v Taylor, 275 

Mich App 177, 180; 737 NW2d 790 (2007). In this context, defendant’s violence toward Lewis 

and the accompanying threat—that if she ever spoke “a word” to the police “about what 

happened with [Alber] the same thing would happen to” her—belies the defense’s theory that 

Alber’s death was an accident and it is relevant to show defendant’s intent. Likewise, Schmit’s 

testimony about defendant’s assault on her and Alber on a previous occasion provided evidence 

of defendant’s motive for killing Alber—an explosive jealousy of the friendship between Schmit 

and Alber; and, this preconceived motive bears on whether defendant intended to kill Alber. See 

Orr, 275 Mich App at 592. In short, the evidence was logically relevant.

Contrary to defendant’s arguments, the probative value of this evidence was not 

“substantially outweighed by the danger of unfair prejudice . . . .” MRE 403. “Evidence is 

unfairly prejudicial when there exists a danger that marginally probative evidence will be given 

undue or preemptive weight by the jury.” Crawford, 458 Mich at 398. As discussed, the other 
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acts evidence offered by Schmit and Lewis was highly probative to material issues at trial, 

namely defendant’s intent and motive. Even if relevant for these purposes, defendant appears to 

believe that Schmit and Lewis could have presented their testimony without reference to the 

violence they suffered and thus he argues that descriptions of the assaults were unfairly 

prejudicial. But, the violence inflicted against these women was probative—it demonstrated the 

nature of the threat against Lewis as part of defendant’s efforts to conceal his guilt and it 

established the extent of his jealousy over the relationship between Alber and Schmit. Such 

evidence may have been detrimental to defendant, but it had strong probative value and was not 

unfairly prejudicial. Finally, the trial court gave an instruction limiting the use of the other acts 

evidence to its proper purposes. See Orr, 275 Mich App at 592. Overall, the trial court did not 

abuse its discretion by admitting this evidence. 

II. EXPERT REPORT

Next, defendant argues the trial court erred by requiring his medical expert, Ronald 

Horowitz, M.D., to prepare a report even though plaintiff did not request a report and even 

though, under MCR 6.201(A)(3), defendant could also have provided a written description in 

lieu of a report. Defendant maintains that this error affected his substantial rights because the 

prosecutor used errors in the report to attack the credibility of Horowitz’s opinions. 

Alternatively, defendant argues that his trial counsel was ineffective for failing to timely object 

to the trial court’s improper action. 

“A trial court's decision regarding discovery is reviewed for an abuse of discretion.” 

People v Green, 310 Mich App 249, 252; 871 NW2d 888 (2015). The proper interpretation of a 

court rule is a question of law which we review de novo. Id. However, while defendant now 

claims he had no obligation under MCR 6.201(A)(3) to provide the prosecutor with a report from 

Horowitz, defendant failed to raise this argument in the trial court, meaning that his claim is 

unpreserved and defendant must show plain error affecting his substantial rights. People v 

Bulmer, 256 Mich App 33, 35; 662 NW2d 117 (2003).

MCR 6.201 governs matters related to discovery in criminal cases. People v Phillips, 

468 Mich 583, 589; 663 NW2d 463 (2003). MCR 6.201(A)(3) provides that, upon request, a 

party must provide “the curriculum vitae of an expert the party may call at trial and either a 

report by the expert or a written description of the substance of the proposed testimony of the 

expert, the expert’s opinion, and the underlying basis of that opinion.” Under MCR 6.201(J), if a 

party fails to comply with the discovery rules, the court has discretion to fashion an appropriate 

remedy, which can include ordering the party to provide discovery or prohibiting the party from 

introducing the material not disclosed. People v Jackson, 292 Mich App 583, 591; 808 NW2d 

541 (2011).

Under MCR 6.201(A)(3), it is clear that, upon request, defendant had an obligation to 

provide the prosecutor with Horowitz’s curriculum vitae and either a report or a written 

description of his proposed testimony. Nevertheless, defendant claims that he did not have to 

provide a report for two reasons. First, defendant argues that the rule does not apply because 

there was no request from the prosecutor. However, the record shows that the prosecutor did 

make a request before trial. Indeed, on the first day of trial, defense counsel admitted that he 
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knew “that the Prosecutor wants a report.” To now claim that there had been no request is 

simply disingenuous. 

Second, defendant argues that he did not have to supply a “report” because, under MCR 

6.201(A)(3), in lieu of a report, he could have provided “a written description of the substance” 

of Horowitz’s testimony. We agree that MCR 6.201(A)(3) is written in the alternative; that is, a 

party must provide either a report or a written description of the proposed testimony. See People 

v Nicholson, 297 Mich App 191, 199; 822 NW2d 284 (2012) (“The word ‘or’ is disjunctive and, 

accordingly, it indicates a choice between alternatives.”). However, defendant did not object 

when the trial court ordered him to provide the prosecutor with a “report,” and he did not, in lieu 

of a report, attempt to provide the prosecutor with a written description of Horowitz’s testimony. 

Instead, Horowitz produced a report, and he testified to his causation theory on defendant’s 

behalf at trial. On this record, we fail to see how defendant was prejudiced by being required to 

produce a report, and we cannot conclude that defendant has shown plain error. 

In arguing to the contrary, defendant’s claim of prejudice rests on the assertion that 

Horowitz’s report was somehow inadequate due to the time crunch in which he drafted the report 

and that no such shortcomings would have occurred in a “written description” of Horowitz’s 

testimony. This argument assumes, without any basis in the evidence, that any deficiencies in 

Horowitz’s report were attributable to being rushed as opposed to errors that he would have 

made even with more time. We will not make such an assumption.1 Moreover, defendant’s 

argument improperly assumes that a written description of Horowitz’s testimony—as opposed to

a “report”—would have been less prone to criticism by the prosecutor’s expert because it is 

somehow a less demanding disclosure. Defendant’s argument oversimplifies what is required of 

a written description of expert testimony. MCR 6.201(A)(3) requires “a written description of 

the substance of the proposed testimony of the expert, the expert’s opinion, and the underlying 

basis of that opinion.” While not specifically formatted as a “report,” such a written description 

would contain much of the same information found in a report and Horowitz’s opinions, stated in 

a written description, would have been equally susceptible to criticisms by the prosecutor’s 

expert. Overall, defendant has not shown plain error arising from the trial court’s order to 

provide a report to the prosecutor. 

It also follows that defendant has not established that counsel’s failure to object to the 

report requirement constituted ineffective assistance of counsel. Counsel is presumed effective, 

and defendant has not overcome the presumption that there were strategic reasons for providing a 

report as opposed to a written description of Horowitz’s testimony. See People v Cooper, 309

Mich App 74, 80; 867 NW2d 452 (2015). In any event, as discussed, defendant has not shown 

 1 To the contrary, most of what defendant characterizes as “inadequacies” were in fact matters on 

which the prosecutor’s expert simply disagreed with Horowitz’s opinions and observations, such 

as Horowitz’s assertion that Alber had advanced liver disease, Horowitz’s disregard of the 

impact sites on the sides and back of Alber’s head, Horowitz’s use of the medical term 

“contrecoup,” the extent of Alber’s facial injuries, etc. 
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prejudice given that the report was produced and Horowitz was able to testify on defendant’s 

behalf. See id. Thus, his ineffective assistance claim must fail. 

III. SUFFICIENCY OF THE EVIDENCE

In a Standard 4 brief, defendant also argues that the evidence was insufficient to support 

his conviction and, relatedly, that the trial court erred by denying defendant’s motion for a 

directed verdict. Specifically, according to defendant, there was insufficient evidence to prove 

that he caused Alber’s death because Alber died as a result of a “terrible accident” that occurred 

when Alber fell and hit his head on a cinder block. 

This Court reviews de novo challenges to the sufficiency of the evidence. People v 

Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). We review “the evidence in the light 

most favorable to the prosecution and determine[] whether a rational trier of fact could find that 

the essential elements of the crime were proven beyond a reasonable doubt.” People v 

McKinney, 258 Mich App 157, 165; 670 NW2d 254 (2003). “All conflicts in the evidence must 

be resolved in favor of the prosecution and we will not interfere with the jury's determinations 

regarding the weight of the evidence and the credibility of the witnesses.” People v Unger, 278 

Mich App 210, 222; 749 NW2d 272 (2008). We apply the same standards when reviewing a 

trial court’s ruling on a motion for a directed verdict, except that we only consider the evidence 

presented up to the time the motion is made. People v Schultz, 246 Mich App 695, 702; 635 

NW2d 491 (2001).

Defendant’s conviction of second-degree murder required the jury to find that (1) the 

victim died, (2) the death was caused by an act of defendant, (3) done with malice, and (4) 

without justification or excuse. People v Goecke, 457 Mich 442, 463-464; 579 NW2d 868 

(1998). The crux of defendant’s argument is the second of these four elements. 

In this case, Mark Cobb, Arthur Devine, and Lawrence Fisher saw defendant hit Alber. 

In an interview with police, defendant admitted that he also kicked Alber in the head, both in an 

up-and-down stomping motion and a kick that was compared to kicking a football. Alber’s

blood was found on defendant’s shoes and on a nearby golf club, and the prosecution offered 

detailed testimony of Alber’s numerous injuries to his face, head, brain, and body. While there 

was evidence that Alber did not immediately die from this beating, Bechinski identified the 

cause of death as “blunt force trauma of the head, and the manner of death was classified as a 

homicide.” Bechinski explained that Alber could have lived for minutes or hours with the 

subdural and subarachnoid bleeding that led to his death, and he indicated that Alber’s various 

injuries could not be explained by a single fall. There was also evidence that defendant had a 

motive for killing Alber insofar as he was jealous of Alber’s relationship with Schmit. Viewing 

the evidence in a light most favorable to the prosecutor, this evidence was sufficient to establish 

that an act of defendant, done with malice and without justification or excuse, caused Alber’s 

death. It also follows that the trial court did not err by denying defendant’s motion for a directed 

verdict at the close of the prosecutor’s case-in-chief. Schultz, 246 Mich App at 702.
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In contrast, defendant highlights the evidence favorable to his position and asserts that 

Alber died as a result of falling and striking his head on a cinder block. Certainly, Horowitz 

offered causation testimony to this effect.2 But, his credibility was a question for the jury. 

People v Stevens, 306 Mich App 620, 628; 858 NW2d 98 (2014). And, indeed, Bechinski 

specifically testified on rebuttal that Alber’s numerous injuries were consistent with being 

brutally beaten and that these injuries could not be explained by falling once on a cinder block. 

Resolving all conflicts in the evidence in favor of the jury verdict, Unger, 278 Mich App at 222, 

there was sufficient evidence to support defendant’s convictions.

IV. INEFFECTIVE ASSISTANCE

In his Standard 4 brief, defendant also argues that defense counsel provided ineffective 

assistance (1) by failing to sequester witnesses, (2) by stating that defendant would exercise his 

right to remain silent by not testifying, and (3) by advising defendant not to testify.3

In order to establish a denial of the effective assistance of counsel, a defendant must show 

that: “(1) the performance of his counsel was below an objective standard of reasonableness 

under prevailing professional norms and (2) a reasonable probability exists that, in the absence of 

counsel’s unprofessional errors, the outcome of the proceedings would have been different.” 

People v Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000). “A 

defendant must overcome a strong presumption that the assistance of his counsel was sound trial 

strategy[.]” Id. A defendant also has the burden of establishing the factual predicate of an 

ineffective assistance claim. People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014).

To the extent defendant argues counsel was ineffective with regard to the sequestration of 

witnesses, his argument is abandoned. In full, defendant states that counsel “was ineffective for 

not Having [sic] a sequester witnesses in this case. Witnesses should not have been aloud [sic] in 

the court room while other witnesses were testifying.” Defendant fails to support this assertion 

with relevant legal authority or cogent argument. He does not even identify what witnesses 

should have been sequestered and he makes no effort to explain how counsel’s failure to 

 2 On appeal, defendant notes that defense counsel moved for a directed verdict at the close of the 

prosecutor’s case-in-chief; and defendant argues that counsel provided ineffective assistance by 

failing to wait until after Horowitz testified to make this motion. This argument is without merit. 

At most, Horowitz’s testimony created a question of fact for the jury with regard to the cause of 

Alber’s death. Viewing the evidence in a light most favorable to the prosecution, this difference 

in expert opinion when compared to Bechinski’s would not have entitled defendant to a directed 

verdict, and counsel was not ineffective for failing to make a meritless motion for a directed 

verdict after Horowitz testified. See People v Riley, 468 Mich 135, 142; 659 NW2d 611 (2003).

3 Along with his Standard 4 brief, defendant submitted a motion to remand for an evidentiary 

hearing, which we denied. People v Rivera, unpublished order of the Court of Appeals, entered 

April 20, 2017 (Docket No. 330405). Insofar as defendant reiterates his request for a remand in 

his Standard 4 brief, his request is again denied because we see no need for the development of a 

factual record to resolve defendant’s claims. 
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somehow effectuate a sequestration prejudiced his case. This cursorily briefed argument is 

abandoned. See People v Watson, 245 Mich App 572, 587; 629 NW2d 411 (2001).

Defendant also argues his trial counsel was ineffective for telling the jury that defendant 

has a right to remain silent. He cites as support the following exchange between defense counsel 

and the trial court, which occurred in front of the jury:

The Court: Okay. Any further evidence for the Defense?

[Defense counsel:] No, Your Honor, I have advised my client of his rights 

to remain silent and he will follow that and we will rest.

The Court: You shouldn’t put that on the record, sir?

This exchange does not entitle defendant to relief. Essentially, defense counsel stated that 

defendant would not be testifying and that he had the right not to testify. When a defendant does 

not testify, whether to inform the jury that he or she has a right not to testify is a matter of trial 

strategy. See People v Hampton, 394 Mich 437, 438; 231 NW2d 654 (1975). Indeed, consistent 

with counsel’s statement, the trial court expressly instructed the jury, under M Crim JI 3.3, that: 

“Every Defendant has the absolute right not to testify. When you decide the case you must not

consider the fact[] that he did not testify. It must not affect your verdict in any way.” On this 

record, defendant has not established his ineffective assistance claim based on counsel’s 

reference to defendant’s decision to remain silent at trial. 

On appeal, defendant also argues that his trial counsel was ineffective because he 

“erroneously advise[d] [defendant] that if he testified that the Prosecution would impeach him 

with his criminal past, when the prosecutor used his criminal past against him anyway.” 

However, he cites no record evidence that counsel gave such advice, and thus he has failed to 

establish the factual predicate of his claim. Douglas, 496 Mich at 592. Further, even assuming 

that counsel gave such advice, advice regarding the decision to testify is a matter of trial strategy, 

and defendant has not overcome the presumption that counsel was effective. Cf. People v 

Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991). Moreover, there is no indication that, 

but for counsel’s advice, defendant would have testified. Nor can we see a reasonable 

probability that his unspecified testimony would have changed the outcome of the proceedings. 

His claim is without merit. Sabin (On Second Remand), 242 Mich App at 659.

V. CUMULATIVE EFFECT

Finally, defendant argues that the cumulative impact of the errors he has identified 

warrants reversal. As discussed, defendant has failed to establish that error occurred. “Thus, 

there are no individual errors that can be aggregated to form a cumulative effect.” Unger, 278 

Mich App at 258.
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Affirmed.

/s/ Joel P. Hoekstra

/s/ Patrick M. Meter

/s/ Kirsten Frank Kelly