-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 31, 2016

v No. 323920 Wayne Circuit Court TONI ALICIA LILEY, LC No. 13-011474-FH

Defendant-Appellant.

Before: R ONAYNE K RAUSE , P.J., and S AWYER and S TEPHENS , JJ.

P ER C URIAM

.
Defendant appeals as of right her bench trial convictions of c arrying a concealed weapon, MCL 750.227, felonious assault, M CL 750.82, and possession of afirearm during the commission of a felony (felony- firearm), MCL 750.227b. Defenda nt was sentenced to 37 days, time served, for the carrying a concealed weapon and felonious assault convictions and to two years’ imprisonment for the felony-firearm conviction. We affi rm defendant’s convictions and sentences, but remand for the m inisterial task of correcting th e presentence investigation report.

At approximately 2:40 p.m. on December 7, 2013, the victim, La nnie Dalton, arrived at her boyfriend’s home located at 5334 Chene in Detroit, Michigan . Dalton was living at the home with her boyfriend, Leon Tyner, a s well as other individuals th at Leon rented rooms to. When Dalton entered the home, she greeted a few friends who were in the living room and then observed defendant exiting a bathroom down the hall. Dalton be came upset upon seeing defendant because she had previously told defendant not to come to Leon’s home. Dalton approached defendant and stated, “Excuse me. Didn’t I tell you you cannot be here when I’m here?” In response, defendant lifted up her sweater to reveal a weapon in a holster on her left hip. Defendant then told Dalt on that she was going to pistol w hip her with the weapon.

Dalton then began to walk out t owards the front door where she was followed by defendant. As the women exited the front door, Dalton heard de fendant rack the gun and fire it
one time into the air. Dalton then turned around and observed defendant about to strike her with the weapon. The women began str uggling over the weapon and fel l to the ground. As they continued to fight over the weapon, two more shots were fired t owards Dalton, but Dalton was able to avoid being struck. The women were eventually separate d and defendant drove away
from the scene.-2- During trial, counsel for defendant did not present any witnes ses for defendant. However, Sergeant Detective Nathan Duda of the Detroit Police D epartment read into the record an interrogation that he conducte d with defendant three days af ter the incident i n question. In the interrogation, defendant stated that she was confronted and pus hed by Dalton and that she struck Dalton with a glass bottle in resp onse. Defendant then stated that she walked outside to put things away in her trunk and told Dalton that she was going to shoot her with a gun she had in the trunk. According to defendant, a man at the house, Jimmy T yner, then took the gun from
defendant. Defendant stated tha t she never fired any shots fro m the gun.

After she was convicted and sentenced, defendant filed a motio n for a new trial and resentencing in the trial court. In her brief in support, defe ndant argued that she was denied her constitutional right to the e ffective assistance of counsel whe re her trial attorney failed to properly investigate the charges and procure readily accessible evidence. Defendant also argued
that she was entitled to a new t rial or evidentiary hearing bec ause her convictions were based upon legally insufficient evidence. Defendant also argued that she was denied due process through acts of prosecutorial misconduct. Finally, defendant a rgued that the presentence investigation report was incomplete and based upon inaccurate a nd false information.

The trial court subsequently entered an opinion and order deny ing defendant’s motion.
The trial court held that defendant’s trial counsel was not ine ffective when she chose not to offer
evidence that was inadmissible. The trial court also held that there was sufficient evidence for a conviction. The court noted that even if the testimony of Dalt on and other eyewitnesses was discounted, defendant’s own statement was sufficient for a conv iction. The trial court declined to address defendant’s argument in regard to the presentence in vestigation report.

Defendant first argues that she is entitled to a new trial on the basis of newly discovered evidence, ineffective assistan ce of counsel, and actual innocen ce. We disagree.

This Court reviews for an abuse of discretion a trial court’s decision to grant or deny a motion for a new trial on the basis of newly discovered evidenc e. People v Grissom , 492 Mich 296, 312; 821 NW2d 50 (2012). The u ltimate const itutional issu e arising from an ineffective
assistance of counsel claim is reviewed de novo. People v LeBlanc , 465 Mich 575, 582; 640 NW2d 246 (2002). Any findings of fact are reviewed for clear e rror. Id . at 583.

Defendant did not raise a claim of actual innocence in the tri al court. Therefore it is unpreserved for appeal. People v Giovannini , 271 Mich App 409, 414; 722 NW2d 237 (2006) (“Appellate review is generally limited to issues raised before and decided by the trial court.”). This Court reviews unpreserved issues for plain error affecting a defendant’s substantial rights. People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). In order to avoid fo rfeiture of the issue, (1) error must have occurred (2) the error must have bee n plain, i.e., clear or obvious and (3) the plain error affected the defendant’s substantial rights

. Id . (citation omitted). This third requirement is satisfied if the d efendant can demonstrate preju dice, i.e., that the error affected the outcome of the lower court proceedings. Id . If the defendant satisfied these three requirements, this Court will only grant reversal when the plain error result ed in the conviction of an innocent defendant or “‘seriously affected [ed] the fairness, integrity, or public reputation of judicial proceedings’. . . .” Id . at 763-764, quoting United States v Olano , 507 US 725, 736-737; 113 S Ct 1770; 123 L Ed 2d 508 (1993).-3- In order to be entitled to a new trial on the basis of newly d iscovered evidence, a defendant must meet the following requirements: (1) the evidenc e itself, not merely its materiality, was newly discovered, (2) the newly discovered evi dence was not cumulative, (3) the party could not, using reas onable diligence, have discovere d and produced the evidence at trial, and (4) the new evidence makes a different result probab le on retrial. Grissom , 492 Mich at 313 (quoting People v Cress , 468 Mich 678, 692; 664 NW2d 174 (2003)). While newly discovered impeachment evidence is generally insufficient to wa rrant a new trial, this evidence may be grounds for a new trial if it satisfies the four part te st set forth in Cress . However, “[n]ewly discovered impeachment evidence concerning immaterial or collateral matters cannot satisfy Cress . But if it has an exculpatory connection to testimony concern ing a material matter and a different result is probabl e, a new trial is warranted.” Grissom , 492 Mich at 321.

The purported new evidence that defendant provides consists of three items: (1) an affidavit sworn by Edward Jones, (2) a petition for a personal protection order (PPO) signed by Roy Frank Adler seeking protection from Dalton because she alle gedly attacked him with a knife, and (3) defendant’s medical records which she claims dem onstrate that she was suffering from alcoholism, taking tranquilizers, and suffering from posttraumatic stress disorder (PTSD) and thought disorders at the time she gave her incriminating st atement to Duda.

Both Jones’s affidavit and Adler’s petition are new impeachmen t evidence. Therefore, in addition to satisfying the four part test set forth in Cress , defendant must prove that this evidence has an exculpatory connection to testimony concerning a materia l matter and that a different result would be probable on retrial. Id . Neither the affidavit of J ones nor Adler’s petition can satisfy these requirements. Jones’s affidavit attempts to impe ach the credibility of Dalton by claiming that he has witnessed her “physically attack, bully, a nd threaten Ms. Liley on several occasions.” On one such occasion, according to Jones, Dalton t hreatened defendant with a meat
cleaver. Jones also claims thatDalton is known as being viole nt, aggressive, and untruthful.

Jones’s affidavit also attempts to impeach the credibility of Eugene Tyner and Dwayne Stewart. Jones states that he has witnessed both men using dru gs on a regular basis and knows them both to be drug addicts and alcoholics. He also claims th at, according to the “word around the neighborhood,” Dalton paid both men in liquor in exchange f or testimony that defendant was carrying a gun. Finally, Jones cl aims that Eugene and Stewart have a reputation for being
dishonest.

Even assuming that the testimony of Jones was newly discovered , not cumulative, and could not have been discovered with reasonable diligence, it do es not make a different result probable on retrial. To start w ith, Jones’s claim that Dalton previously attacked defendant on multiple occasions would not be admissible to impeach Dalton un der MRE 608. MRE 608(b) states that specific instances of the conduct of a witness, for the purpose of attacking the witness’s credibility, may not be proved by extrinsic evidence. Therefore, testimony by Jones regarding specific attacks co mmitted by Dalton against defendan t would not be admissible.

In addition, Jones’s claim thatDalton has a reputation for be ing violent and aggressive would not be admissible under MRE 608. MRE 608(a) states that the credibility of a witness may only be attacked in the form of opinion or reputation testi mony if the testimony refers to the
witness’s character for truthful ness or untruthfulness. Dalton ’s reputation of being violent and-4- aggressive has no bearing on her character for truthfulness, an d thus, would be barred under MRE 608(a). Jones’s testimony that Dalton is known for being u ntruthful would be admissible under MRE 608(a). However, this assertion has no “exculpatory connection to testimony concerning a material matter” and a different result on retrial is not probable. Grissom , 492
Mich at 321.

Jones’s statements regarding the alleged drug and alcohol use by Eugene and Stewart would also be barred by MRE 608. As stated above, MRE 608(b) f orbids attacking a witness’s credibility with extrinsic evidence of specific instances of co nduct. The rule only allows an inquiry into specific instances o f conduct on cross-examinationif the conduct is probative of the
witness’s character for truthf ulness. The testimony of Jones i s extrinsic evidence and is thus barred. It also is not probative of Eugene’s or Stewart’s char acter for truthfulness, and thus, could not be inquired about on cross-examination.

Jones’s statement that he heard from around the neighborhood t hat Dalton paid off Eugene and Stewart in liquor for favorable testimony would also be barred as hearsay. MRE 801(c) defines hearsay as “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 802 states that hearsay is not admi ssible unless otherwise provided by rule. This statement by Jones is clearly being offered for its truth, i.e., that Eugene and S tewart lied about defendant carrying a gun in exchange for liquor from Dalton. Since this statement w as inadmissible, it would not have made a different result on retrial probable. While Jones’ s statement that Eugene and Stewart both had reputations for dishonesty would have been adm issible under MRE 608(a), this testimony also has no “exculpatory connection to testimony conc erning a material matter” and a
different result on retri al would not be probable. Grissom , 492 Mich at 321.

Adler’s petition for a PPO against Dalton also would not have been admissible to impeach Dalton’s testimony at trial. Like with Jones’s stateme nt that he witnessed Dalton attack defendant on multiple occasions, Adler’s petition states that h e was attacked by Dalton with a knife. However, as stated above, MRE 608(b) prohibits extrinsi c evidence of a witness’s specific instances of conduct for impeachment purposes. Theref ore, this newly discovered
evidence would have been inadmi ssible and does not satisfy the requirements set forth in Cress

.
The last piece of newly discovered evidence consists of defend ant’s medical records. According to defendant, these records demonstrate that she was suffering from alcoholism, multiple mental disorders, and was taking tranquilizers at the time she gave her statement to Duda. Defendant does not explai n why these records could not h ave been discovered with reasonable diligence. Considering that these were defendant’s own medical records, it seems clear that they could have been procured at trial with reasonab le diligence. Therefore, defendant has failed to satisfy the requirements set forth in Cress and is not entitled to a new trial on the basis of newly discovered evidence.

Defendant also claimed that she was denied her constitutional right to the effective assistance of counsel. In order to prevail on an ineffective a ssistance of counsel claim, “a defendant must show that counsel’s performance fell below an ob jective standard of reasonableness, and that the repre sentation so prejudiced the d efendant as to deprive him of a fair
trial.” People v Pickens , 446 Mich 298, 338; 521 NW2d 797 (1994). “Because of the-5- difficulties inherent in making the evaluation, a court must in dulge a strong presumption that counsel’s conduct falls within the wide range of reasonable pro fessional assistance.” Strickland v Washington , 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984). In or der for the defendant to satisfy the prejud ice prong of the analysis, “a co urt must conclude that there is ‘a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.’” Pickens , 446 Mich at 312 (citing Strickland

, 466 US at 695).

Defendant claims that her trial counsel was ineffective when s he failed to “investigate this matter, failed to subpoena any witnesses, failed to impeac h witnesses with readily accessible evidence, and failed to obtain other court documents/records th at would have otherwise
demonstrated the lack of credibi lity in the witness testimony p resented to the Court.”

Defendant argues that her tri al counsel’s failure to subpoena any witnesses constituted deficient performance because there were two individuals, Jimmy Tyner and another man named “Jo Jo,” who could have testified that defendant never had a gu n on the date in question. In support of this claim, defendant a ttached a statement by Jimmy given to police af ter the shooting. Contrary to defendant’s assertion, Jimmy’s statement does not e xplicitly state that defendant did not have a gun during the inciden t. Jimmy merely stated that h e did not see if e ither defendant or Dalton was carrying a weapon during their altercation. Signifi cantly, Jimmy stated that he heard three gun shots fired during the fight. This number of shots i s consistent with what Dalton claimed, and thus, corroborates her testimony. In addition, de fendant admits that both Jimmy and Jo Jo refused to come to court to testify because they were on parole. Although defendant argues that she explicitly reque sted her trial counsel to call these witnesses, “[d]ecisions regarding what evidence to present, whether to call witnesses, and how to question witnesses are presumed to be matters of trial strategy.” People v Horn , 279 Mich App 31, 39; 755 NW2d 212 (2008). Therefore, it cannot be said that the decision of defe ndant’s trial counsel not to call Jimmy and Jo Jo to testify “fell below an objective standard of reasonableness.” Pickens , 446 Mich 298, 338.

Defendant also argues that the performance of her trial counse l was deficient when she failed to properly investigate and impeach the credibility of t he prosecution’s witnesses. The brief submitted by defendant’s appellate counsel does not speci fy exactly what defendant’s trial counsel failed to investigate and impeach, however, the brief d oes note slight variations in Dalton’s statements to police, p reliminary examination testimon y, and her testimony at trial. Defendant notes that Dalton gave multiple statements and testim ony in which the number of shots allegedly fired by defendant varied. In addition, at def endant’s preliminary examination,
Dalton stated that the women walked out of the back of the hous e, as opposed to the front as
Dalton testified at trial.

Despite defendant’s claims, the record demonstrates that defen dant’s trial counsel attempted to impeach Dalton with at least some of these prior i nconsistent statements. On crossexamination at trial, defendant’s trial counsel asked Dalton if she was sure that she walked out of the front door of the house pri or to the shooting. Dalton stat ed that she was sure she went out of the front door, to which defense counsel responded that Dalton had given testimony at the preliminary examination that the women exited the back of the h ome prior to the shooting. Defense counsel then subsequently impeached Dalton by noting th at in a prior statement to police, Dalton claimed that defendant pointed the weapon at her and fired immediately after-6- racking and shooting the gun in the air. Despite defendant’s c laims, there is evidence in the record demonstrating defense counsel’s attempts to impeach Dalt on with her prior statements. Thus it cannot be said that defense counsel’s performance in cr oss-examining Dalton “fell below an objective standard of reasonableness.” Pickens , 446 Mich 298, 338.

Defendant also argues that the performance of her trial counse l was deficient where counsel failed to adequately impeach Eugene and Stewart. Defen dant claims that defense counsel should have impeached Eugene with a prior inconsistent statement given to police after the shooting. However, a review o f the statement demonstrates that there are not any
inconsistencies between the sta tement and his testimony at tria l. In both his statement and in his testimony, Eugene stated that both defendant and Dalton were ar guing and they both walked from the bathroom of the home to the outside of the home. Euge ne stated in his statement and in
court that he heard “three to four” shots fired.

Defendant also claims that her trial counsel failed to properl y impeach Eugene with an armed robbery conviction as well as five convictions involving alcohol related misdemeanors. However, none of these convictions would have been admissible f or impeachment. MRE 609 only allows for impeachment by evidence of a criminal convictio n where the crime contained an element of dishonesty or false statement, or the crime containe d an element of theft and was punishable by more than one year in prison and the evidence has significant probative value on the issue of credibility. MRE 609(a)(1)-(2). Eugene’s alcohol related offenses do not contain an element of dishonesty or false statement or theft. While Eugen e’s armed robbery conviction involves an element of theft, the conviction is well beyond the 10-year time limit set forth in MRE 609(c), thus making it inadmissible for impeachment as well

.
Defendant also argues that her trial counsel should have impea ched Stewart with evidence of his previous criminal convictions. However, these convictions also are barred by MRE 609. Most of Stewart’s previous convictions are alcohol re lated offenses and thus do not involve an element of dishonesty, false statement, or theft. While Stewart was convicted of second-degree retail fraud, this c onviction occurred in 1998 an d Stewart was not subject to any incarceration. Thus, this conviction is also inadmissible unde r MRE 609. MRE 609(c).
Because defendant has failed to demonstrate that her trial coun sel’s performance was deficient,
this Court need not address whet her defendant was prejudiced by this performance.

Defendant also is not entitled to a new trial on the grounds t hat she has satisfied the
“actual innocence” standard. Reviews of an actual innocence cl aim are only to be conducted in “extraordinary cases.” People v Swain , 288 Mich App 609, 638; 794 NW2d 92 (2010). Defendant “must show that it is more likely than not that no re asonable juror would have found [the defendant] guilty beyond a reasonable doubt.” Id . Defendant claims that if the testimony of Jimmy, Adler, and Jones had been i ntroduced at trial, it is mor e likely than not t hat no reasonable
trier of fact would have found de fendant guilty. However, as s tated above, the testimony of Adler and Jones simply consisted of inadmissible impeachment ev idence and Jimmy’s testimony actually corroborated the testim ony of Dalton. Therefore, defe ndant is unable to satisfy the
“actual innocence” standard.

Defendant next argues that the evidence relied upon by the tri al court was insufficient to convict her of any of the three o ffenses with which she was cha rged. We disagree.-7- When reviewing a claim of insufficient evidence, this Court re views the record de novo. People v Mayhew , 236 Mich App 112, 124; 600 NW2d 370 (1999). This Court revie ws the evidence in the light most favor able to the prosecutor and dete rmines whether a rational trier of fact could find that the essential elements of the crime were p roven beyond a reasonable doubt. People v Johnson , 460 Mich 720, 723; 597 NW2d 73 (1999).

MCL 750.227(1) prohibits a person from carrying a “dangerous w eapon . . . concealed on or about his or her person, or whether concealed or otherwise i n any vehicle operated or occupied by the person.” “Carry ing a concealed weapon is a gen eral intent crime. The only intent necessary is an intent to do the act prohibited, to know ingly carry the weapon on one’s person or in an automobile.” People v Combs , 160 Mich App 666, 673; 408 NW2d 420 (1987) (citation omitted). As the trial court noted in reaching its v erdict, defendant admitted in her statement to police that she had been carrying the weapon in th e trunk of her vehicle prior to entering the home. Therefore, there was sufficient evidence to prove beyond a reasonable doubt that defendant knowingly carrie d a concealed weapon in the trun k of her vehicle.

There was also sufficient evidence to convict defendant of fel onious assault. The elements of felonious assault are as follows: (1) an assault, ( 2) with a dangerous weapon, and (3) with the intent to injure or pla ce the victim in reasonable app rehension of an immediate battery. People v Avant , 235 Mich App 499, 505; 597 NW2d 864 (1999) (citation omitted) . “[F]elonious assault is a specific intent crime. Thus, felonious assault re quires the additional showing that the defendant intended to injure or i ntended to put the victim in r easonable fear or apprehension of an immediate battery. The statute also requires the use of a d angerous weapon in carrying out
the assault.” People v Robinson , 145 Mich App 562, 564; 378 NW2d 551 (1985) (quotation marks and citation omitted). Dalton testified that defendant l ifted up her shirt to show Dalton that she was carrying a gun. Dalton testified that defendant then told Dalton that she was going to “pistol whip” her and followed her out of the home where she fired the weapon in the air.
Dalton also described how defenda nt attempted to strike her with the weapon and fired multiple shots towards her while they w ere wrestling over the weapon. M ost significantly, the trial court properly relied on defendant’s own statement to police that she had a weapon in the trunk of her car and was threatening Dalton with it. Therefore, there was s ufficient evidence to convict
defendant of felonious assault.

The elements of felony-firearm are that the defendant possesse d a firearm during the commission or attempt to commit a felony. People v Davis , 216 Mich App 47, 53; 549 NW2d 1 (1996). “Possession may be actual or constructive and may be p roved by circumstantial
evidence.” People v Burgenmeyer , 461 Mich 431, 437; 606 NW2d 645, 648 (2000) (citations and quotations omitted). “[A] defendant has constructive posse ssion of a firearm if the location of the weapon is known and it is reasonably accessible to the d efendant.” Id . at 438. Here, there is direct evidence of both actual and constructive possession o f a weapon by defendant during
the commission of her felonious assault. Dalton testified thatdefendant had a firearm in a
holster under her shirt and threatened Dalton with it. Dalton testified that defendant then proceeded to attack her with the weapon. In addition, defendan t’s own statement to police established constructive possess ion. Defendant told police tha t she was going through her trunk while the weapon was in it and was threatening Dalton with it. This shows that defendant knew the location of the weapon and it was readily accessible to her . Therefore, there was sufficient
evidence to convict defenda nt of felony-firearm.-8- Defendant also argues that she is entitled to resentencing bec ause her presentence investigation report (PSIR) was i ncomplete and was based upon i naccurate and false information. We disagree, but rem and for the ministerial task of correcting the PSIR.

“We review the sentencing court’s response to a claim of inacc uracies in defendant’s
PSIR for an abuse of discretion.” People v Spanke , 254 Mich App 642, 648; 658 NW2d 504 (2003).

“The sentencing court must respond to challenges to the accura cy of information in a presentence report; however, the court has wide latitude in res ponding to these challenges.” Id

. at 648-649. The trial court has the option to determine the ac curacy of the information, accept defendant’s version, or simply disregard the challenged informa tion. Id . If the trial court chooses to disregard the challenged information, it must clearl y indicate that it did not consider the alleged inaccuracy in determining the defendant’s sentence. Id

.
While defendant did raise an issue in regard to the inaccuracy of her PSIR in her motion for resentencing, the trial court declined to address it becaus e it was not supported by affidavit. However, it is clear from the record and from defendant’s sente nces that any inaccuracies in the
PSIR did not affect defendant’s s entences. To the contrary, in formation regarding defendant’s background seemed to help defendant receive a favorable sentenc e. The trial court sentenced defendant to time served for her carrying a concealed weapon an d felonious assault convictions and noted that she was sentencing defendant to two year’s impri sonment for the felony-firearm conviction because “that’s a mandatory two years. I have no co ntrol over that.” Therefore, it is clear that the trial court did not rely on any challenged infor mation because the only punishment handed down was the two years’ imprisonment for the felony-fire arm conviction that the trial court was bound by statute to impose. Because the trial court did not rely on any challenged information during sentencing, resentencing is not required. People v Harmon , 248 Mich App 522, 533; 640 NW2d 314 (2001). However, the information regard ing defendant’s THC use, lack of substance abuse treatment, and lack of history of physi cal abuse must be stricken from the PSIR. Therefore, we remand for the ministerial task of cor recting the PSIR.

In a Standard 4 brief, defendant argues that she suffered from temporary insanity at the time she gave her incriminating statement to Duda. Defendant a rgues that this insanity was caused by involuntary intoxication and other mental and medical disorders and thus she could not have validly waived her Miranda 1 rights. We disagree.

At trial, defendant’s counsel s tipulated on the record that de fendant was given her
Miranda rights prior to her interrogation by Duda and that defendant v oluntarily waived these rights. Although defendant’s trial counsel seemingly waived th is issue by stipulating to defendant’s voluntary waiver, de fendant now contends on appeal that her attorney ignored her requests to object to the admission of the statement based on d efendant’s mental condition at the time of the interrogation. Because defendant did not raise thi s objection at trial, this issue is

1 Miranda v Arizona , 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).-9- unpreserved for appeal. Giovannini , 271 Mich App at 414. We review unpreserved issues for plain error affecting s ubstantial rights. Carines , 460 Mich at 763.

Two requirements must be met before an individual can effectiv ely waive his or her
Miranda rights. The Supreme Court has held that first, “the relinquis hment of the right must have been voluntary in the sense that it was the product of a f ree and deliberate choice rather than intimidation, coercion, or deception.” Moran v Burbine , 475 US 412, 421; 106 S Ct 1135, 1141; 89 L Ed 2d 410 (1986). In addition to being voluntary, t he defendant’s waiver must be knowing and intelligent, i.e., it “must have been made with a f ull awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Id.

In determining whether both the requirements of a voluntary an d knowing waiver have been met, the court must consider the totality of the circumsta nces surrounding the interrogation. People v Daoud , 462 Mich 621, 634; 614 NW2d 152 (2000). This is an objective inquiry and
includes circumstances such as the suspect’s age, experience, e ducation, background, and intelligence. Id . It also includes an evaluation of whether the suspect has th e capacity to understand the warnings given to him, the nature of his rights, and the consequences of waiver.
Id. “Only if the totality of the c ircumstances surrounding the in terrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that
the Miranda rights have been waived.” Id

.
Because no single factor is determinative, the fact that a per son is under the influence of intoxicants does not per se re nder a statement involuntary. People v Lumley , 154 Mich App 618, 624; 398 NW2d 474 (1986). While a suspect’s level of intoxicat ion is one factor to consider in reviewing the objective circumstances of a suspect’s waiver, it cannot be the only factor in concluding that a waiver was made involuntarily. People v Cheatham , 453 Mich 1, 43; 551 NW2d 355 (1996). “[A] deficiency in the defendant that is not exploited by the police cannot
annul the voluntariness of a conf ession unless there is evidenc e of police coercion.” People v
Fike , 228 Mich App 178, 182; 577 NW2d 903 (1998).

Despite defendant’s claims, t here is no evidence to suggest th at she was coerced into giving a statement or that she did not comprehend the nature of her rights and the consequences of abandoning them when she signed her Advice of Rights. While defendant did attach a psychiatric evaluation conducted by Dr. Stephanie Stevenson of the Northeast Guidance Center to her brief on appeal as proof of her impaired mental state, t his simply confirms that defendant was on medication to help her with the side effects of her with drawal from alcohol. There is no indication that at the time she signed the waiver of her rights and gave her statement that she was unaware of the consequences of abandoning her rights. Moran , 475 US at 421.

To the contrary, her statements to Duda indicate that she was aware of the consequences of speaking with police and attempted to give an exculpatory ve rsion of events. Defendant told Duda that Dalton started pushing her and that she struck Dalton with a glass bottle in response. She then stated that she went outside to her car and, although she did threaten to shoot Dalton, Jimmy took the gun away from her. Defendant denied ever pointi ng or firing the gun at Dalton. When asked if her fingerprints would be found on the gun, defen dant told Duda that they would only be found because she had previously put bullets in the wea pon. Even if there was evidence of intoxication or other mental disorders causing temporary ins anity, the totality of the-10- circumstances, including the subs tance of defendant’s statement , indicates that her waiver was given voluntarily and was knowing and intelligent. Therefore, it was not plain error for the trial
court to allow defendant’s state ment to Duda to be read into th e record.

Affirmed, but remanded for the ministerial task of correcting the PSIR. We do not retain jurisdiction.

/s/ Amy Ronayne Krause /s/ David H. Sawyer /s/ Cynthia Diane Stephens