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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED October 11, 2016

v No. 328235 Kalamazoo Circuit Court CALEB NUQUAY MACKEY, LC No. 2015-000023-FC

Defendant-Appellant.

Before: S HAPIRO , P.J., and H OEKSTRA and S ERVITTO , JJ.

P ER C URIAM

. Defendant appeals as of right his conviction of armed robbery, MCL 750.529. Defendant was sentenced as a fourth-offense habitual offender to 20 to 50 years’ imprisonment. Because the verdict was not against the great weight of the evidence, t he prosecutor did not impermissibly vouch for its main witness, and defendant was not denied the ef fective assistance of counsel, we affirm.

According to the evidence intr oduced at trial, on January 5, 2 015, defendant went to a jewelry store where an employee, Robert Mitchell, allowed him t o try on a Rolex watch. Defendant “took off running” with t he watch and Mitchell ran af ter him. Notably, Mitchell testified that, during the chase, defendant placed his hand in the breast area of his jacket and stated, “I’ve got a gun, I’ve go t a gun.” Mitchell testified that he feared being shot, but he continued to follow defendant. Mitchell saw defendant get into a white car and he memorized the license plate number. Based on information provided by Mit chell, the police soon located the vehicle and apprehended defe ndant. Police recovered the wa tch from defendant, but they did not find a gun. The jury convict ed defendant of armed robbery.

On appeal, defendant first claims that the jury’s verdict was against the great weight of the evidence. In particular, de fendant contends that Mitchell’ s description of h is fear during the chase is incredible because a person in fear of being shot woul d not continue in pursuit of an armed robber. According to defendant, it follows that no one c ould believe Mitchell was placed “in fear” and thus the verdict was against the great weight of the evidence. We disagree.

A verdict is against the greatweight of the evidence when “th e evidence preponderates so heavily against the verdict that it would be a miscarriage of j ustice to allow the verdict to stand.” People v Lacalamita , 286 Mich App 467, 469; 780 NW2d 311 (2009). “New trial motio ns based solely on the weight of the evidence regarding witness credibil ity are not favored.” People v-2- Lemmon , 456 Mich 625, 639; 576 NW2d 129 (1998). “[A]bsent exceptiona l circumstances, issues of witness credibility are for the jury, and the trial c ourt may not substitute its view of the credibility for the constitutiona lly guaranteed jury determinat ion thereof.” Id. at 642 (citation omitted). To constitute “exceptional circumstances,” “the witn ess testimony must ‘contradict[ ] indisputable physical facts or la ws,’ be ‘patently incredible o r def[y] physical realities,’ be ‘so inherently implausible that it could not be believed by a reaso nable juror,’ or have been ‘seriously impeached’ in a case that was ‘marked by uncertainti es and discrepancies.’” People v Bosca , 310 Mich App 1, 13; 871 NW2d 307 (2015) (citation omitted).

To convict a defendant of arme d robbery, the prosecution must prove that:

(1) the defendant, in the course of committing a larceny . . . used force or violence against any person who was present or assaulted or put the pers on in fear, and (2) the defendant, in the course of committing the larceny, either possessed a dangerous weapon . . . or represe nted orally or otherwise that he or she was in possession of a dangerous weapon. [ People v Chambers , 277 Mich App 1, 7; 742 NW2d 610 (2007); see also MCL 750.529.]

In this case, the prosecution’s theory of the case was that Mit chell was placed “in fear,” and the jury was instructed that armed robbery required them to find th at “defendant put in fear Robert Mitchell” during the course of committing a larceny. Actions t aken “in the course of committing a larceny” include “acts that occur in an attempt to commit the larceny, or during commission of the larceny, or in flight or attempted flight after the commiss ion of the larceny, or in an attempt to retain possession of t he property.” MCL 750.530.

As noted, in this case, Mitchell testified that he chased defe ndant from the store and, during defendant’s flight with the watch, defendant placed his hand in his jacket and said “I’ve got a gun, I’ve got a gun.” Mitche ll testified that defendant’ s statement “scared” and “intimidated” him. He specified that he was “scared” “of being shot.” In short, Mitchell’s testimony, if believed, establishe d that he was placed in fear by defendant during the course of the larceny as a result of defendant’s representations about ha ving a gun. Cf. People v Williams

, 491 Mich 164, 183; 814 NW2d 270 (2012); People v Jury , 3 Mich App 427, 429-432; 142 NW2d 910 (1966). This evidence provided ample support for the jury’s verdict.

In contrast, defendant maintai ns that no one could reasonably believe Mitchell was “in fear” because he continued to pursue defendant, even after defe ndant stated that he had a gun. In making this argument, defendant ignores evidence that Mitchell took reasonable protective measures in response to defendant’s statement that in fact supp ort the conclusion that Mitchell feared for his safety. For example, Mitchell testified that he slowed down to a walk, kept a “safer distance” between himself and defendant, and did not sta rt running again until defendant was “far enough away that . . . [defendant] would have a hard t ime shooting [Mitchell] from that distance.” In any event, even if Mitchell was arguably reckles s in his pursuit of defendant, Mitchell’s persistence does not necessarily demonstrate a lack of fear or contradict Mitchell’s testimony that he was “scared.” Humans are known to possess “c ourage” in varying degrees, People v Coleman , 350 Mich 268, 280-281; 86 NW2d 281 (1957), and it is the very definition of “courage” to persevere and withstand danger, fear, or difficult y, Merriam-Webster’s Collegiate Dictionary (2014). In other words, we see nothing inherently implausible, patently incredible, or-3- violative of a physical reality in an individual undertaking ac tion in the face of fear. Instead, it was for the jury to assess the significance of Mitchell’s conti nued pursuit and to decide whether Mitchell was placed “in fear” dur ing the course of the larceny. In sum, this case does not involve exceptional circumstances warranting a new trial on the basis o f defendant’s credibility challenges. See Bosca , 310 Mich App at 13.

Defendant next argues that the prosecutor improperly vouched f or Mitchell’s credibility during closing arguments. Defendant failed to object in the tr ial court, meaning that defendant’s claims of prosecutorial misconduct are unpreserved. People v Bennett , 290 Mich App 465, 475; 802 NW2d 627 (2010). We review unpreserved claims of prosecuto rial misconduct for plain

error. People v Unger , 278 Mich App 210, 235; 749 NW2d 272 (2008). “Reversal is warranted only when plain error resulted i n the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of judic ial proceedings.” People v Callon

, 256 Mich App 312, 329; 662 NW2d 501 (2003). “Further, we canno t find error requiring reversal where a curative instru ction could have alleviated any prejudicial effect.” Id. at 329- 330.

“Prosecutors are typically afforded great latitude regarding t heir arguments and conduct at trial.” Unger , 278 Mich App at 236. “[T]he prosecutor cannot vouch for the credibility of his witnesses to the effect that he has some special knowledge conc erning a witness’ truthfulness.” People v Bahoda , 448 Mich 261, 276; 531 NW2d 659 (1995). However, “a prosecut or may comment on his own witnesses’ cre dibility during closing argume nt, especially when there is conflicting evidence and the quest ion of the defendant’s guilt depends on which witnesses the jury believes.” People v Thomas , 260 Mich App 450, 455; 678 NW2d 631 (2004).

In this case, defendant presents this Court with several quote s selected from the prosecutor’s closing argument in which the prosecutor stated th at Mitchell had “no special reason to lie” and, more specifically, that Mitchell did not kn ow defendant, Mitchell did not receive any type of bonus or gift if defendant was found guilty , and Mitchell had no “motivation to tell [the jury] something that’s not true about the way he f elt.” Considering the statements in context, the prosecutor did not personally vouch for Mitchell o r suggest any special knowledge concerning Mitchell’s credibility, but instead accurately recou nted Mitchell’s testimony that he did not know defendant and would not receive a bonus from his i nvolvement. From the evidence, the prosecutor reasonably argued that Mitchell had no reason to lie. This was not improper, particularly when Mitchell’s credibility was an impor tant and contested issue at trial. See id. ; Bennett , 290 Mich App at 478-479. Moreover, any prejudice could have been relieved by a curative instruction, Callon , 256 Mich App at 329-330, and the jury was in fact instructed that the lawyers’ arguments were not evidence. On this record, defendant has not shown plain error and he is not ent itled to relief. See id.

Finally, defendant argues in a Standard 4 brief that defense c ounsel was ineffective for several reasons. Because defendant failed to preserve his clai ms, our review is limited to errors apparent on the record. People v Heft , 299 Mich App 69, 80; 829 NW2d 266 (2012). To demonstrate ineffective assistan ce of counsel, “the defendant m ust show that counsel’s performance fell below an objective standard of reasonableness” and “that, but for counsel’s deficient performance, a different result would have been reaso nably probable.” People v Armstrong , 490 Mich 281, 290; 806 NW2d 676 (2011). “The defendant must overcome a strong-4- presumption that counsel's performance constituted sound trial strategy.” People v Matuszak

, 263 Mich App 42, 58; 687 NW2d 342 (2004). Defendant also bears the burden of establishing the factual predicate of his claim. People v Hoag , 460 Mich 1, 6; 594 NW2d 57 (1999).

Defendant first claims that couns el did not properly investiga te and had “no strategy whatsoever” at trial. However , defendant does not explain how the investigation was deficient or how more thorough investigation would have affected the outcome . Furthermore, there is no information on the record before this Court regarding defense c ounsel’s investigation of this case, meaning that defendant has failed to establish the factua l predicate of his claim. See id. Regarding counsel’s strategy, co ntrary to defendant’s represent ations on appeal, counsel presented a reasonable defense to the jury, arguing that, while defendant committed a larceny, he was not guilty of armed robbery because there “never was a gun” and Mitchell’s claims of “fear” did not “make sense” given that he continued to pursue defendan t. “A particular strategy does not constitute ineffective assistance of counsel simply because it does not work.” Matuszak , 263 Mich App at 61.

Defendant also raises some cursory challenges to counsel’s dil igence and commitment to the case, claiming that counsel d id not visit him with enough f requency in jail, counsel was “preoccupied” with his cell phone during the jury selection, co unsel made a joke to one of the deputies about defendant stealing watches, counsel had a “suspi ciously cocky attitude about himself during trial,” and counsel sent a paralega l to represen t defendant at sentencing. By failing to provide any authority in support of his arguments, d efendant has abandoned these claims. See id. at 59. In any event, defendant has failed to establish the fa ctual predicate of his claims because there is no record evidence to support these ass ertions. See Hoag , 460 Mich at 6. Moreover, defendant makes no effort to establish how he was pre judiced by these supposed occurrences. Thus, he has not established his ineffective assi stance claim. Armstrong , 490 Mich at 290.

Lastly, defendant argues that h is trial counsel was ineffectiv e for failing to advise him of the potential sentencing consequences of rejecting the plea off er. Defendant fails to provide a citation to legal authority and leaves it to this Court to disc over and rationalize the basis for his claims. This type of cursory treatment constitutes abandonment of the issue. Matuszak , 263 Mich App at 59. Nevertheless, the argument fails because nothi ng on the record demonstrates that defense counsel failed to properly inform defendant of the information necessary to enable him to make an informed and voluntary choice between trial and a guilty plea. See generally People v Fonville , 291 Mich App 363, 384-385; 804 NW2d 878 (2011). In fact, bef ore trial, defense counsel indicated on the record that he had discussed t he final plea offer “at length” with defendant, but that defendant chose to reject it and go to tria l. On the available record, defendant’s claims of ineffectiv e assistance are without merit.

Affirmed.

/s/ Douglas B. Shapiro /s/ Joel P. Hoekstra /s/ Deborah A. Servitto