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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 23, 2016

v No. 323795 Wayne Circuit Court CYNTHIA ILENE FLEMING, LC No. 13-001653-FC

Defendant-Appellant.

Before: G LEICHER , P.J., and J ANSEN and S HAPIRO , JJ.

P ER C URIAM

. Defendant appeals as of right herbench trial convictions of s econd-degree murder, MCL 750.317, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b(1). Defendant was sentenced to 13 1⁄2 to 24 years’ impr isonment for the second-degree murder conviction, to be served c onsecutively to the mandatory two-year term of imprisonment for the felony-firearm convicti on. We affirm defendant’s convi ctions and sentence, but remand for the limited purpose of correct ing the presentence investiga tive report (PSIR) to reflect that defendant was convicted following a bench trial and that she di d not have any outstanding warrants at the tim e of sentencing.

I. OFFENSE VARIABLE 5

In the brief submitted by appellant counsel, defendant argues that the trial court erred in scoring 15 points under o ffense variable (OV) 5. 1 We disagree.

1 We review for clear error the trial court’s findings of fact, and such findings require support by a preponderance of the record evidence. People v Steanhouse , ___ Mich App ___, ___; ___ NW2d ___ (2015); slip op at 19. The application of the facts t o the law, namely whether the facts are sufficient to meet the scoring conditions set forth i n the pertinent statute, presents a question of law that this Court reviews de novo. Id . This Court will also review de novo the trial court’s interpretation of the sentencing guidelines. Id . A trial court’s findings of fact are clearly erroneous where, after a review o f the record as a whole, “this Court is left with a definite and firm conviction that a mistake has been made.” People v Givans , 227 Mich App 113, 119; 575 NW2d 84 (1997) (citation omitted).-2- OV 5 addresses psychological injury to a member of a victim’s family. MCL 777.35. A trial court must assess 15 points if a “[s]erious psychological injury requiring professional treatment occurred” to a member of the victim’s family. MCL 77 7.35(1)(a). The court must “[s]core 15 points if the serious psychological injury to the v ictim’s family may require professional treatment.” MCL 777.35(2). “In making this determination, the fact that treatment has not been sought is not conclusive.” MCL 777.35(2).

Here, the victim’s daughter gav e a statement at sentencing. S he explained that after her mother’s death, the victim reached out to her and provided emot ional support. She stated that although she was in counseling before the victim’s death, she h ad to increase her counseling to three days a week because she could not get out of her head wha t she thought the victim’s thoughts must have been when he died. In People v Steanhouse , ___ Mich App ___, ___; ___ NW2d ___ (2015); slip op at 19-20, we affirmed a trial court’s assessment of 15 points for OV 5 where the victim’s parents were present in the home when their son’s throat was slashed, and they discovered the crime was committed by someone they believe d was a close friend of their son. The Steanhouse Court noted “the trial court’s opportunity to observe the deme anor of [the victim’s] parents during their testimony” supported the trial c ourt’s finding regarding their psychological injuries. Id . at ___; slip op at 20. Here, the trial court was in the uniq ue position to hear the daughter’s testimony both at trial and at the sente ncing hearing, and so the court was able to observe her demeanor and make a credibility determinati on. Id . Given the record, the trial court’s finding that the v ictim’s daughter suffered serio us psychological harm requiring a score of 15 points under OV 5 was supported by a preponderance of the evidence. 2

II. STANDARD 4 BRIEF

Defendant next raises several issues in a brief submitted purs uant to Administrative Order No. 2004-6, Standard 4. After revie w, we conclude that the iss ues raised in defendant’s Standard 4 brief do not warrant reversal.

A. INEFFECTIVE ASSISTANCE OF COUNSEL

First, defendant argues that defense counsel was ineffective f or a number of reasons. Because no Ginther 3 hearing was conducted, “our revie w of the defendant’s claim of ineffective assistance of counsel is limited to mistakes that are apparent on the record.” People v Mack , 265 Mich App 122, 125; 695 NW2d 342 (2005).

To prevail on a claim of ineffective assistance of counsel, a defendant must establish that trial defense counsel’s conduct did not meet an objective stand ard of reasonableness, and that, but for defense counsel’s error, there is a reasonable probabil ity that the result of the trial would have been different. People v Lopez , 305 Mich App 686, 694; 854 NW2d 205 (2014), quoting

2 Defendant has not raised a challenge to the scoring of OV 5 ba sed on the court’s potential use of judicial factfinding and we dec line to raise it sua sponte.

3 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-3- Strickland v Washington , 466 US 668, 688; 104 S Ct 2052; 80 L Ed 2d 674 (1984). There is a strong presumption that defense counsel’s actions are pursuant to sound trial strategy. People v Unger , 278 Mich App 210, 242-243; 749 NW2d 272 (2008). We will not interfere with defense counsel’s judgment regarding matters of trial strategy or secon d-guess defense counsel’s decisions with the benefit of hindsight. Id . at 242-243. Moreover, a criminal defendant must establish the factual predicate for his or her claim. People v Hoag , 460 Mich 1, 6; 594 NW2d 57 (1999).

Defendant first argues that defense counsel was ineffective fo r not retaining and presenting an expert witness on battered woman syndrome.

In People v Christel , 449 Mich 578, 591; 537 NW2d 194 (1995), the Michigan Supreme Court held that expert testimony concerning battered woman syndrome is admissible when relevant to an issue before the factfinder. The Court limited such testimony to a description of “the generalities or character istics of the syndrome” and its p ossible relationship to “a specific behavior brought out at trial.” Id . (quotation omitted). The Court also barred expert opinion testimony on whether a person was , in fact, a battered woman. Id

. Defense counsel did present evide nce that defendant had endure d prior physical abuse from the victim. The victim’s daughter and one of the victim’s neighbors testified about defendant and the victim’s vola tile relationship. Defense coun sel also extensively questioned a police detective about prior domestic dispute calls originating from defendant and the victim’s apartment. While it is conceivable that expert testimony may h ave bolstered the defense, defendant has failed to provide us with a basis upon which we c ould reach this conclusion, let alone to determine whether it affected the outcome of the case. Defendant has not presented an affidavit or any other material to indicate that such an expert exists and what the substance of his or her testimony would have been. Defendant filed a pro per mo tion to remand for a Ginther hearing, which also contained no such material. On August 14, 2015, we denied her motion without prejudice stating that w e “will consider another motion to remand if it is filed by defendant-appellant’s counsel and is supported by affidavits to show the testimony that could have been presented at trial and is available to place on the r ecord on remand.” 4 Such material has not been submitted. Accordingly, we cannot conclude that d efense counsel’s failure to call an expert as to battered woman syndrome was ineffective or thatit was reasonably likely to be outcome determinative. Lopez , 305 Mich App at 694.

Defendant next argues that defense counsel was ineffective bec ause he did not communicate with her and because she was unaware of the trial s trategy, the anticipated defenses, or the evidence that would be admitted at trial. In support of her claim, defendant provided letters that she sent to the trial court and to defens e counsel. There is nothing on the record to suggest that defendantsent the letters to the trial court before trial. Although one of the letters attached to defendant’s S tandard 4 brief is dated befor e the trial, her second appended letter is dated after proofs were closed, and it expressly stat es that the other letter was not

4 People v Fleming , unpublished order of the Cour t of Appeals, entered August 14, 2015 (Docket No. 323795).-4- previously sent to the trial court. The letter to defense coun sel, which is dated June 20, 2014 (before trial), does indicate that defendant had some confusion about what defense was going to be presented at trial. Copies of the letters are not included in the lower court file, nor is there anything on the letters, such as a court stamp, to indicate tha t they were actually received by the trial court. Moreover, given that defense counsel appears to h ave presented the defense that defendant wanted him to present at trial, we are not persuaded that the outcome of the trial would have been different had defense counsel communicated with defen dant more before trial. Accordingly, defendant’s claim o f ineffective assistance is wit hout merit. Id

. Defendant next argues that defense counsel was ineffective bec ause he did not object to hearsay statements related by a police officer and a firefighte r. The police officer testified that while defendant was in his squad car she stated that she hoped the victim died. This statement is not hearsay because it is a party-opponent admission under MRE 801(d)(2) and is, by definition, not hearsay. The firefighter testified that he asked the victi m if defendant shot him and the victim responded by nodding. This nonverbal response is an out of court statement introduced for the truth of the matter asserted, so it is hearsay. MRE 80 1(c). However, it was admissible as a statement made under belief of impending death. MRE 804(b)(2 ). Because both statements were admissible, defense counsel was not ineffective for failin g to object. People v Collins , 298 Mich App 458, 470; 828 NW2d 392 (2012) (stating that defense co unsel is not ineffective for failing to raise a meritless objection).

Admission of those statements did not deprive defendant of her right to confront the witnesses against her. Defendant’s own statements to the polic e do not implicate the Confrontation Clause. See People v Fackelman , 489 Mich 515, 524-525; 802 NW2d 552 (2011) (recognizing that the United Stat es and Michigan constitutions provide a criminal defendant with the right to confront the witnesses against him or her). And the victim’s nonverbal statement to the firefighter identifying defe ndant as his assailant is nonte stimonial. See People v Taylor , 275 Mich App 177, 182; 737 NW2d 790 (2007) (holding that the victim ’s statements identifying his assailant as he was dying of his gunshot wounds were nontestimo nial under Crawford v Washington , 541 US 36, 68; 124 S Ct 1354; 158 L Ed 2d 177 (2004) and were admissible pursuant to MRE 804(b)(2)). Accordingly, because the Confronta tion Clause was not violated, defense counsel was not ineffective for failing to object to th e testimony on grounds that it violated the Confrontation Clause. Collins , 298 Mich App at 470.

Defendant next argues that defense counsel was ineffective for failing to have an expert witness testify at her sentencing hearing about mitigating fact ors that bore on the trial court’s sentencing decision. Defendant acknowledges that while prepari ng for sentencing, defense counsel did consult with a psychologist to determine whether th ere was a reason for a downward departure. Defense counsel, however, ultimately decided not to present an expert in support of his request for a downward depart ure. Instead, he prepared a m emorandum presenting his argument and then orally argued in favor of a downward departur e. On appeal, defendant argues that if a psychologist were contacted mitigating factors may ha ve been expounded upon by the expert. Defendant suggests that the mitigating factors might h ave included the fact she allegedly had post-traumatic stress disord er (PTSD). However, besides de fendant’s unsupported assertion, there is nothing in the record indicating what a psychologist w ould have actually stated. Accordingly, defendant has not e stablished the factual predicat e for her claim, Hoag , 460 Mich at 6, and has not overcome the presumption that defense counsel was acting pursuant to a valid-5- strategy when he decided not to present a psychologist at sente ncing. Unger , 278 Mich App at 242.

Defendant also argues that defense counsel was ineffective for failing to suppress her statements to the police officer i n the squad car and her state ments during the booking process on the grounds that the statements were made when she had not been advised of her Miranda 5 rights. However, Miranda warnings are not required unless the accused is subject to a c ustodial interrogation. See People v Hill , 429 Mich 382, 397-399; 415 NW2d 193 (1987). Here, the police officer testified that defendant was talking to herself in the back of the squad car when she made the statement that she hoped the victim died and that he s hould not have lost all their money at the casino. The officer testified that defendant was not being questioned when she made the statement. Further, during the booking procedure, a b ooking officer asked defendant general identification questions , but did not question defendan t about the shooting. The officer testified that defendant made se veral unsolicited statements during the booking procedure that pertained to the shooting, including statements that the victim grabbed the gun and attempted to shoot himself and statements that the victim had asked defendan t to shoot him. Because none of the challenged statements was so licited during a custodial inte rrogation, we conclude that defense counsel was not ineffective for failing to suppress the statements.

Defendant next argues that defense counsel was ineffective for failing to call her mother, two neighbors, and the victim’s c ousin. Defendant asserts that her mother would have corroborated her testimony that the victim was angry about vari ous issues. Defendant asserts that one neighbor would have testified that on the day of the s hooting, (1) the victim was angry about various issues, (2) defenda nt seemed shaky and “out of it ” when approached by the victim, and (3) that defendant did not make sense when she was talking to the neighbor. Defendant asserts that another neighbor woul d have testified that she had witnessed the victim abusing defendant on multiple occasions and that she did not visit defe ndant and the victim because she was sick of seeing the victim beat defendant. 6 Finally, defendant asserts that the victim’s cousin could have testified that the victim never told him that defend ant shot at him on a previous occasion. Defendant argues that the testimony from these witne sses would have impacted her credibility at trial. However, there is nothing in the record to indicate that the potential witnesses would have testified in the manne r that defendant asserts they would have testified, and defendant has not attached any affidavits from the potential wi tnesses. Thus, defendant has failed to supply the factual predicate for her claim. Hoag , 460 Mich at 6. Moreover, assuming arguendo that the witnesses would have t estified as indicated by defend ant and that defense counsel was ineffective for failing to present their testimony, defendant has nevertheless failed to establish that, but for the alleged error, the outcome of the t rial would have been different. Lopez , 305 Mich App at 694. Defense counsel presented testimony sup porting defendant’s testimony that the victim was angry with her and that he had pr eviously abused her, including presenting a personal protection order that defendant had obtai ned against the victim following one incident of abuse. The trial court never expressed any dou bt with regard to that testimony;

5 Miranda v Arizona , 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

6 Defendant concedes that defens e counsel unsuccessfully attempt ed to locate this neighbor.-6- however, the court found that defendant’s testimony lacked cred ibility, in main part because she testified that the victim was s hot twice in the living room, bu t there was no blood actually found in the living room. The court also noted that defendant’s stor ies about what occurred during the shooting were inconsistent. On t hese facts, defense counsel wa s not ineffective. Id

. Defendant next argues that defense counsel was ineffective for failing to request a continuance during the trial w hen he was feeling ill. Defendan t asserts, without support, that five days after the trial, defense c ounsel told her he did not objec t to “certain witnesses” on July 17, 2014, the last day of trial, because he was not feeling well. It is not clear which witnesses defense counsel apparently failed to object to because of illne ss. The record shows that defendant was the only witness that testified on July 17, 2014. Moreover, there is nothing on the record to indicate that defense counsel was, in fact, ill, or that, if he was ill, it affected his ability to effectively represent defendant. Given that defendant has n ot identified the witnesses that apparently should have been objected to or what portions of the ir testimony was objectionable, defendant has not established the factual predicate for her cla im, Hoag , 460 Mich at 6, and so relief is not warranted on this claim.

Finally, defendant argues that t he cumulative effect of defens e counsel’s errors mandates reversal. However, given that we have not found any errors, we decline to reverse on that basis.

B. SUFFICIENCY OF THE EVIDENCE

Defendant argues that there was insufficient evidence to suppo rt her conviction for second-degree murder. 7 She asserts that there was insufficient evidence to show mali ce, that the prosecution failed to negate her claim of self-defense, and tha t the record evidence only supported a manslaughter c onviction. We disagree.

“The elements of second-degree murder consist of (1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or ex cuse.” People v Henderson , 306 Mich App 1, 9; 854 NW2d 234 (2014) (quotation omitted). “The t erm ‘malice’ has been defined as the intent to kill, the intent to do cause great bodily harm , or the intent to do an act in wanton and willful disregard of the likelihood that the natural tenden cy of such behavior is to cause death or great bodily harm.” Id . at 9-10 (quotation omitted).

There was sufficient evidence to establish that defendant acte d with malice when she shot the victim. Although defendant presents her trial testimony as support for a finding that she did not act with malice, we must view the evidence in the light mos t favorable to the prosecution.

7 Challenges to the sufficiency of the evidence are reviewed de novo. People v Ericksen , 288 Mich App 192, 195; 793 NW2d 120 (2010). Due process requires, that when the evidence is viewed in the light most favorable to the prosecution, a reason able trier of fact could find each element of the crime establis hed beyond a reasonable doubt. People v Lundy , 467 Mich 254, 257; 650 NW2d 332 (2002). It is the trier of fact’s role to ju dge credibility and weigh the evidence. People v Jackson , 292 Mich App 583, 587; 808 NW2d 541 (2011).-7- People v Lundy , 467 Mich 254, 257; 650 NW2d 332 (2002). Here, defendant call ed 911 after the shooting and stated that she had shot the victim. Then, wh en she was placed in a police car, she stated that she hoped defenda nt died and that he should not have lost all of their money at the casino. Further, during the booki ng procedure at the police st ation, defendant also made unsolicited statements about how the victim told her to shoot h im. The record also established that defendant was shot twice, once in the back and once in his left leg. Viewed in the light most favorable the prosecution, the evidence supports a finding that when defendant shot the victim she intended to kill him a nd, in fact, wanted him to die. 8

Defendant also argues that the prosecution failed to disprove that she acted in selfdefense. Whether a defendant acted in self-defense is an issue reserved to the trier of fact. People v Prather , 121 Mich App 324, 330; 328 NW2d 556 (1982). In People v Roper , 286 Mich App 77, 86; 777 NW2d 483 (2009), this Court set forth the relev ant law on the defense of selfdefense:

“In Michigan, the killing of anot her person in self-defense is justifiable homicide if the defendant honestly and reas onably believes that his life is in imminent danger or that there is a thr eat of serious bodily harm.” People v Heflin , 434 Mich 482, 502; 456 NW2d 10 (1990); see also MCL 780.972(1)(a) (provi ding that a person may use deadly force against another if the person “hone stly and reasonably believes that the use of deadly force is necessary t o prevent the imminent death of or imminent gr eat bodily harm to himself or h erself or to another individual”). “Once evid ence of self-defense is introd uced, the prosecutor bears the burden of disproving it beyond a reasonable doubt.” People v Fortson

, 202 Mich App 13, 20; 507 NW2d 763 (1993).

At trial, defendant testified that she came out of the bedroom and saw her gun on a TV table. She stated that she had left her gun in her jacket and that it had not been in the “firing” position. She testified that when she saw the gun she became c oncerned and started to ask the victim about it but that before finishing her question, she and the victim moved towards the gun. She testified the victim reached the gun first and that she gra bbed his hand and a mutual struggle ensued during which the victim pulled her hair and swore at her . Defendant stated that the gun went off twice during the struggl e at which point the victim ac cused her of shooting him in the leg and she responded he had shot himself in the leg. Whether or not to accept this version of events was for the factfinder, People v Jackson , 292 Mich App 583, 587; 808 NW2d 541 (2011), and in rendering its verdict, the trial court stated that it fo und defendant’s testimony not credible. Moreover, the forensic evidence strongly indicated that the sho ts were fired from a distance of feet, not inches and were unlikely to have been fired during a close struggle. We conclude that the trial court did not err in f inding that the prosecutor had proven beyond a reasonable doubt that defendant was not acting in self-defense.

8 Defendant also argues that, at best, she should have only been convicted of manslaughter. However, given our conclusion that sufficient evidence existed to support her conviction for second-degree murder, we decline to address this argument furth er.-8- C. DENIAL OF REQUEST T O REOPEN THE PROOFS

Defendant argues that the trial court erred when it refused to reopen the proofs several days after closing arguments were finished. Defense counsel ex plained that he wanted to reopen the proofs to provide a brief dem onstration to the trial court to show that defendant’s version of events could have led to the injuries sustained by the victim. Defendant asserts that the trial court’s refusal deprived her of her constitutional right to a f air trial and to present a defense. 9

“Relevant in ruling on a motion to reopen proofs is whether an y undue advantage would be taken by the moving party and whether there is any showing o f surprise or prejudice to the nonmoving party.” People v Herndon , 246 Mich App 371, 420; 633 NW2d 376 (2001) (quotation omitted). When we review a trial court’s decision o n a motion to reopen the proofs, we consider several factors, including: “whether conditions hav e changed or undue advantage would result, whether newly discovered and material evidence is sought to be admitted, whether surprise would result, and the timing of the motion during the trial.” People v Moore , 164 Mich App 378, 383; 417 NW2d 508 (1987), mod on other grounds 433 Mic h 851 (1989).

Here, the motion to reopen the proofs was heard over a week af ter the trial court heard closing arguments. The proposedevidence was not newly discove red and was, in fact, cumulative to defendant’s trial testimony. Accordingly, on the se facts, the trial court did not abuse its discretion in denying defendant’s motion to reopen th e proofs. Id . at 384 (concluding the trial court did not abuse its discretion in not reopening the proofs to allow the defendant to testify where the motion to reope n the proofs was filed after c losing arguments and there was no newly discovered evidence or change in circumstances). Moreove r, the trial court’s denial did not deprive defendant of her right to present a defense because she was, in fact, allowed to present her defense through her testimony, which was then argue d by defense counsel during closing argument.

D. ACCURACY OF SENTEN CING INFORMATION

Defendant also argues that she was sentenced on the basis of i naccurate information. To the extent that defendant is refe rring to the court’s scoring d ecision on OV 5, there was sufficient evidence to support the court’s scoring decision. Thus, defend ant was not sentenced on inaccurate information with regard to OV 5.

E. DOWNWARD DEPARTURE

9 This Court reviews for an abuse of discretion the trial court’ s determination concerning the reopening of the proofs. People v Herndon , 246 Mich App 371, 419; 633 NW2d 376 (2001). “An abuse of discretion occurs when a court chooses an outcome that falls outside the range of reasonable and principled outcomes.” People v White , 307 Mich App 425, 429; 862 NW2d 1 (2014). Unpreserved claims of constitutional error are reviewe d for plain error affecting defendant’s substantial rights. People v Costner , 309 Mich App 220, 232; 870 NW2d 582 (2015).-9- Defendant next argues that the trial court abused its discreti on when it failed to depart downward from the sentencing guid elines range. Defendant asser ts that a downward sentence was required because (1) she appeared intoxicated during the bo oking procedure, (2) she was 58 years old, (3) she had hypertension and clinical depression, (4 ) she had previously been abused by the victim, and (5) she did nothave a prior criminal record . Regardless of whether those circumstances would have supported a downward departure, defend ant cannot establish that the trial court’s decision to sentence within the guidelines range was an abuse of discretion. The trial court stated that, after considering the trial testimony and the arguments presented in favor of a downward departure, it did not think a downward departure was warranted and it did not think that a sentence at the top of the guidelines was warrante d. The guidelines range was 162 to 270 months. The court sentenced defendant to a minimum of 162 months, a sentence at the bottom of the guidelines range. Given the facts of this case, the court’s decision was not an abuse of discretion.

F. ACCURACY OF THE PRESENTENCE INVEST IGATIVE REPORT

Finally, defendant argues that the PSIR was incorrect. She as serts that it incorrectly stated that she had an outstanding warrant at the time she was sentenced and that her convictions were the result of a guilty plea.

It is apparent that defendant w as convicted by the court, not on the basis of a plea. Moreover, at sentencing, the cour t, defense counsel, and the pr osecution all stated that defendant did not have a prior criminal his tory, which suggests that at t he time of sentencing there was not an outstanding warrant against d efendant. Accordingly, there a re factual errors in the PSIR. Defense counsel did not challenge the accuracy of the statement s. However, where the trial court “did not rely on the challenged information in the PSIR i n sentencing defendant, resentencing is not required; rather the remedy is to remand fo r the limited purpose of correcting the PSIR.” People v Spanke , 254 Mich App 642, 650; 658 NW2d 504 (2003) (citation omitted)

. In this case, the trial court affirmatively stated that defendant had no prior criminal history. The court also referenced the testimony at the bench trial over whi ch it presided. Accordingly, we conclude that the trial court di d not rely on the incorrect inf ormation in the PSIR. Therefore, we remand for the ministerial t ask of correcting the PSIR. Id

. 10

10 Defendant argues that defense counsel was ineffective for fail ing to challenge the accuracy of the PSIR. However, given that the trial court did not rely on the inaccurate statements, we conclude that defendant cannot s how that she was prejudiced by defense counsel’s failure.-10- III. CONCLUSION

We affirm defendant’s convictions and sentence, but remand for the limited purpose of correcting the PSIR to reflect that defendant was convicted fol lowing a bench trial and that she did not have any outstanding warrants at the time of sentencing . We do not retain jurisdiction.

/s/ Elizabeth L. Gleicher /s/ Kathleen Jansen /s/ Douglas B. Shapiro