If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

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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- Appellee, UNPUBLISHED August 19, 2021

v Nos. 353053
Monroe Circuit Court JOHN ALLEN LAKE, LC Nos. 19

- 245406

- FH

Defendant

- Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee,

v No. 353058
Monroe Circuit Court JOHN ALLEN LAKE, LC No. 19

- 245410

- FH

Defendant

- Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee,

v No. 353225
Monroe Circuit Court JOHN ALLEN LAKE, LC No. 19

- 245411

- FH

Defendant

- Appellant.

Before: C AVANAGH

, P .J., M URRAY

, C.J. and R EDFORD , J.

P ER C URIAM

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-

In these consolidated appeals

, 1 in Docket No. 353053 defenda nt appeals as of right his jury trial convictions of unlawful imprisonment, MCL 750.349b, and assault with intent to do great bodily harm less than murder or by strangulation (AWIGBH), MCL 750.84 . Defendant also appeals as of right his convictions of domesti c violence, MCL 750.81(2), and third

- offense domestic violence, MCL 750.81(4) , in Docket Nos. 353058 and 353225 . The trial court sentenced
defendant as a fourth

- offense habitual offender, MCL 769.12, to 48 to 1 2 0 month s’ imprisonment

each for his domestic violence and third

- offense domestic violence conviction s, and 148 months

to 300 month s’ imprisonment each for his AWIGBH and false imprisonment conviction s

. D efendant ’s appeal focuses solely on challenges to his conviction of unlawful imprisonment , and alternatively argues ineffective assistance of counsel

. W e affirm defendant’s conviction and

sentence

.

I. BACKGROUND

This case arises out of three domestic violence incidents that occurred on June 28, 2019, August 16, 2019, and August 30, 2019. 2 As no ted, d efendant challenges only his unlawful imprisonment conviction, which arose out of two separate incidents on August 30, 2019.
Defendant had two minor children with the victim of these incidents

, LLB

.

A. THE BASEMENT INCIDENT

Defendant was staying a t LLB ’s house on the evening August 30, 2019 . A bout 8:30 p.m. that evening

, LLB heard a knock at the door. Looking out the window

, she saw a uniformed police
officer

, Officer Scott Pitcher of the Monroe Police Department

, who had come to serve a subpoena

on LLB

. 3

1 People v Lake , unpublished order of the Court of Appeals, entered April 1, 2020 (Docket Nos. 353053, 353058, 353225).

2 Each incident was initially charged as a separate case and the cases were later consolidated for
trial and tried before a single jury.

3 The subpoena was to summon LLB to testify about an earlier domestic violence incident involving defendant. According to LL B , once alerted of the officer’s presence, defendant ushered

LLB and the children down to the basement and told them to keep quiet. LLB testified that defendant wanted to prevent her from being subpoenaed. According to defendant, however, it was

LLB who did not want to answer the door, as she did not want to get in trouble for having defendant over in violation of his bond. Thus, according to defendant, LLB and the children went downstairs on their own volition. Once in the basement, LLB tried to g o upstairs, but according to LLB

, defendant blocked the doorway and would not let her pass. Though she could not recall what defendant said, she testified that defendant threatened to harm her should she go upstairs. Defendant denied threatening harm to LLB or preventing her from going upstairs

. Officer Pitcher left about two or three minutes after knocking on the front door, and defendant allowed LLB and the children to come upstairs.- 3

- B. THE CLOSET INCIDENT

A few hours later, LLB and defendant started to argue. At some point during th e argument, defendant grabbed LLB by the throat and lifted her off the ground. Suddenly

, LLB ’s daughter entered the room, and defendant rele ased LLB

. Shortly thereafter

, LLB slipped one of her children her cell phone and told him to call 911, which he successfully did.

In response to the child’s 911 call, Officer s Daniel Clanton, Tyler Kleinert, and Pitcher were dispatched to LLB ’s house about midnight. Officer Clanton testified that the officers knocked on the front door and announced their presence but received no response. The officers surveyed the exterior of the house and knocked on different doors and windows to see if anyone
would respond, but no one did. The doors and windows were covered with curtain s , so the officers
could not see inside the house.

When defendant saw that the police had arrived, according to LLB defendant ushered her
and the children into the children’ s shared bedroom , and instructed them to get into the bedroom closet. They complied, and defendant stood in front of the closet door to prevent them from leaving. About 20 minutes later

, LLB asked defendant if she could take a child to use the bathroom, w hich defendant permitted. But defendant required the other child to stay in the closet. Once in the bathroom, LLB accidentally knocked over a towel rack. Defendant heard this and asked about the noise. When defendant came to investigate, LLB struck def endant two or three
times with the towel rack , after which she ran to the front door. Defendant followed her. LLB testified that she could not get the front door open

— either because defendant was holding it shut
or because the door’s latch was stuck. Sh e screamed for help, and then ran to the sliding glass
door at the back of the house. Officer Pitcher was outside the sliding glass door , and h e testified
that LLB yanked back the curtains covering the sliding glass door and began fumbling to get the
lock undone to let him in. He testified that LLB appeared “[p]anicked, frenzied, hysterical.” After

LLB opened the sliding glass door, Officer Pitcher observed defendant “pushing up against the [front door] trying to keep it closed. ” Just then, Officers Cla nton and Kleinert broke down the
front door. The officers arrested defendant without further incident.

At trial, defendant denied confining LLB and the children in the closet. He testified that the closet has a dresser and stackable shelves in it, so according to defendant, three people could
not fit inside the closet. When asked why he did not open the door for police, defendant testified “[b] ecause I was in violation of my bond.” 4 He also testified that

, had he known LLB had told one of the children to call the police, he would have opened the door for police

.

C. INSTRUCTIONS

D uring final instructions, the trial court instructed the ju ry on the element s of each crime with which defendant was charge d . Afterward, the trial court instructed the jur y that its verdict on the false imprisonment charge must be unanimous to convict :

4 Defendant was out on bond for a prior domestic violence incident at the time of this alleged
offense. One of the conditions of his bond was that he was to have no contact with LLB

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A verdict in a criminal case must be unanimous. In order to ret urn a verdict, it is necessary that each of you agrees on that verdict. In the jury room, you’ll discuss the case amongst yourselves, but ultimately, each of you will have to make up your own mind. A verdict must represent the individual considered judgm ent of each and every juror.

The trial court, however, did not instruct the jury that its verdict must be unanimous as to the factual basis for defendant’s guilt. The trial court excused the jur y to deliberate. About two

and

- a

- half hours later, the ju r y sent a note to the trial court stating it was having difficulty reaching
a consensus “on at least one count.” The trial court instruct ed the jury to keep in mind its
instructions from earlier and invited it to submit a written list of issues that were bothering or confusing the jury

. After lunch, the jury returned , but it appears the jur y never ac t ed on the trial
court’s invitation to ask further about any issues. About a half

- hour after resuming deliberati ons, the jur y reached a verdict , finding defendant guilty o f all counts. The trial court polled the jurors after the verdict, and each juror agreed that this was their verdict

.

II. ANALYSIS

Before this Court defendant argues that, although he was convic ted of only one count of unlawful imprisonment, the prosecution presented evidence of two or more acts that could have
served as the actus reus for that count: the basement incident and t he closet incident. Yet the trial court did not instruct the jury t hat it must unanimously agree on the same specific act s forming the

actus reus for defendant’s conviction. Defendant concedes that his trial counsel did not request a specific unanimity instruction, but defendant argues that it was plain error for the tri al court not to have provided one sua sponte. In the alternative, defendant argues that his trial counsel rendered ineffective assistance by failing to request a specific unanimity instruction.

A. JURY INSTRUCTIONS

We review de novo “jury instructions t hat involve questions of law . . . .” People v Gillis

, 474 Mich 105, 113; 712 NW2d 419 (2006) (citation omitted). “But a trial court’s determination whether a jury instruction is applicable to the facts of the case is reviewed for an abuse of
discretion. ” Id

.

To preserve a challenge to jury instructions, a party must object to or request an instruction before the jury deliberates. People v Sabin (On Second Remand) , 242 Mich App 656, 657; 620 NW2d 19 (2000) . If a party fails to do so, relief is only wa rranted if the alleged error was plain and it affected defendant’s substantial rights. MCL 768.29; People v Kowalski , 489 Mich 488,
505

- 506; 803 NW2d 200 (2011); see also People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). Defendant concedes that his trial counsel did not request a specific unanimity instruction. We therefore review for plain error. Under plain

- error review, reversal is warranted only if the defendant can establish the following: (1) an error occurred; ( 2) that error was plain; and (3) that error affected the defendant’s substantial rights. Id. at 763. “The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Id

. If the defendant successfully carries this burden, this Court should reverse if- 5

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“ the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an

error ‘ seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant ’ s innocence. ’” Id.

, quoting United States v Olano , 507 US 725, 736

- 7 37; 113 S Ct 1770; 123 L Ed 2d 508 (1993) ( quotations marks and citation omitted ).

Both the Michigan Constitution and the United States Constitu tion require all criminal convictions to be secured by a unanimous jury verdict. Const 1963, art I, § 14; US Const, Am VI; People v Cooks , 446 Mich 503, 524; 521 NW2d 275 (1994); Ramos v Louisiana

, ___ US ___, ___; 140 S Ct 1390, 1397; 206 L Ed 2d 583 (2 020)

. When the prosecution presents evidence of two or
more acts that could serve as the actus reus element of the charged offense,

a general instruction to the jury that its decision must be unanimous will be adequate unless 1) the alternative acts are materially distinct (where the acts themselves are conceptually distinct or where either party has offered materially distinct proofs regarding one of the alternatives), or 2) there is reason to believe the jurors might be confused or disagree about the fa ctual basis of defendant’s guilt

. [ Cooks , 446 Mich at 524].

When the alternative acts are materially distinct

, or if there is reason to believe the jurors might be confused or disagree about the factual basis of a defendant’s guilt, “the trial court is re quired to instruct the jury that it must unanimously agree on the same specific act.” Id . at 530. In other words, it must give a specific unanimity instruction. Id

.

As noted , the prosecution presented evidence of two or more acts that could have served
as the actus reus for unlawful imprisonment: the basement incident and the closet incident. Defendant argues the trial court plainly erred by giving only a general unanimity instruction
because these incidents were materially distinct and because there is reason to believe the jurors might have been confused or disagreed about the factual basis of defendant’s guilt. We conclude
that defendant was not prejudiced when the trial court did not sua sponte instruct the ju ry in that regard.

D efendant has failed to show that the absence of a specific unanimity instruction had any effect on the outcome. Noting the jur y indicated it was having trouble reaching a consensus on one of the counts during deliberations, defendant argues the jur y must have been divided on the
factual basis for finding defendant guilt y of unlawful imprisonment.

It is true that

, d uring its deliberation, the jur y inform ed the trial court that it w as having trouble coming to a consensus on one of the c harges

, b ut it did not specify which c harge . In response to the note from the jury , the trial court told the jury that, if helpful, it could submit a
written list of issues for clarification. The jur y never followed up. The fact that the jur y indicate d
it was having trouble reaching a consensus on one of the counts, by itself, does not mean it must have been divided as to the factual basis for defendant’s unlawful imprisonment count. Defendant assumes that this was the case, but offers no reason to ju stify t his assumption.

More to the point, however, is the strength of the evidence against defendant

. We hold that in light of the significant evidence as to both incidents, even if the trial court sh ould have given a- 6

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specific unanimity instruction, there is no reason to believe the jur y would have been incapable of reaching a consensus on the unlawful imprisonment charge.

Taken as true, LLB ’s testimony established the elements for unlawful imprisonment. The jury was instructed that a person is guil ty of unlawful imprisonment if the prosecution proves two elements beyond a reasonable doubt: (1) that the person knowingly restrained another person; and (2) that the restrained person was secretly confined

. See People v Railer , 288 Mich App 213, 217;

79 2 NW2d 776 (2010) ; see also M Crim JI 19.8. Regarding the basement incident, LLB testified
that defendant ordered her and her children into the basement to hide LLB from the police. She testified that defendant prevented her from going upstairs by blocki ng the door , and that he threatened to harm her should she go upstairs. For the closet incident, LLB testified that defendant
order ed her and the children into the closet and threatened to hurt LLB if she did not comply.
Defendant then sat in front of th e entrance to the closet to prevent LLB and the children from leaving, all in an effort to again hide LLB from police.

Other than defendant’s testimony, all other evidence corroborated LLB ’s version of events

, and undermined defendant’s version of event s. LLB testified that, after hitting defendant with the towel rack, she ran to the front door. Defendant followed her. She could not get the front door

open

— either because defendant was holding it shut or because the door’s latch was stuck. Officer

Pit cher testified that, after LLB let him inside the home, he observed defendant pushing against the front door, trying to keep it closed. W hen LLB could not open the front door, she ran to the sliding glass door at the back of the house and screamed for hel p. Officer Pitcher corroborated this, testifying that after he hear d a female scream, LLB appeared at the sliding glass door in the back of the house. In addition, Officers Clanton, Kleinhart, and Pitcher all testified they heard a female scream for help . Defendant, on the other hand, denied any wrongdoing. He denied constraining LLB and the children in the basement or choking LLB , and he denied constraining

LLB and the children in the closet. This is belied by Officers Kleinert’s testimony that, when he entered the house that night, he found LLB “crying hysterically,” and Officer Alexander McKenzie’s testimony that he “thought [ LLB ] may be seriously injured because of how distraught she was acting.” Equally important, defendant had no explanation for why LLB ’s son called 911

, and told the operator that defendant was trying to kill him, his sister, and his mo ther

.

D efendant has offered no reason for us to conclude that the jury would have reached a
different verdict regarding the unlawful imprisonment c harge had the trial court provided a specific unanimity instruction.

B. INEFFECTIVE ASSISTANCE

We likewise reject defendant ’s argu m e nt that his trial counsel was inef fective for failing to request a specific unanimity instruc tion.

To preserve a n ineffective assistance of counsel argument , a defendant must move in the trial court for a new trial or evidentiary hearing, or move for remand with this Court. People v
Head , 323 Mich App 526, 538

- 539; 917 NW2d 752 (2018)

. Becaus e defendant did not move for a new trial or evidentiary hearing in the trial court, and he did not move this Court for remand, his
argument is unpreserved

. W e therefore review only for errors apparent on the record. I neffective
assistance of counsel argu ments present mixed question s of fact and constitutional law. See People- 7

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v Trakhtenberg , 493 Mich 38, 47; 826 NW2d 136 (2012). We review de novo whether a particular act or omission fell below an objective standard of reasonableness under prevailing pro fessional norms and prejudiced the defendant. Id. at 19

- 20.

Both the Michigan and United States Constitutions require that a criminal defendant be provided effective assistance of counsel in his or her defense. US Const Am VI; Const 1963, art 1, § 20 ; see also People v Ackley , 497 Mich 381, 388; 870 NW2d 858 (2015) . Because this Court presumes that counsel’s assistance was effective, a criminal defendant bears the burden of proving

otherwise. People v Lockett , 295 Mich App 165, 187; 814 NW2d 295 (2012 ) (citations omitted)

. Establishing ineffective assistance of counsel requires a defendant to show: (1) counsel ’ s performance fell below an objective standard of reasonableness under prevailing professional norms and (2) that counsel’s performance prejudi ced defendant. Id . A defendant is prejudiced if there is a reasonable probability that the outcome of a proceeding would have been different had counsel performed effectively. Trakhtenberg , 493 Mich at 51. “A reasonable probability is a probability suf

ficient to undermine confidence in the outcome.” Ackley , 497 Mich at 389.

Even if defendant’s trial counsel’s performance fell below an objective standard of reasonableness, defendant has failed to show a reasonable probability that the outcome would have been different had trial counsel requested a specific unanimity jury instruction. Defendant argues there is a reasonable probability of a different outcome because, had the trial court given such instruction, “the jury would have been required to agr ee on which of the factual instances, the basement or the closet, supported their guilty verdict.” While true, defendant has provided no reason to believe the jur y would not have still come to a unanimous verdict on one of the factual
bases. For the reas ons discussed above, the evidence for each factual basis was sufficiently strong
that there is no reasonable probability that defendant’s convictions would have been defective had the instructions been given

.

D efendant has failed to establish plain erro r or show that he was deprived of effective
assistance of counsel

.

Affirmed.

/s/ Mark J. Cavanagh /s/ Christopher M. Murray
/s/ James Robert Redford