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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 1, 2017

v No. 330710 Wayne Circuit Court DORIAN LAMARR PRICE, LC No. 15-004825-01-FC

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and B ECKERING and S HAPIRO , JJ.

P ER C URIAM

. Following a bench trial, defendant, Dorian Lamarr Price, was c onvicted of assault with intent to do great bodily harm less than murder (AWIGBH), MCL 7 50.84, felonious assault, MCL 750.82, carrying a concealed weapon, MCL 750.227, possessio n of a firearm during the commission of a felony, second of fense (felony-firearm), MCL 75 0.227b, and possession of a firearm by a person convicted o f a felony (felon-in-possession) , MCL 750.224f. The court sentenced defendant as a four th habitual offender, MCL 769.12, to 7 to 15 years’ imprisonment for the AWIGBH conviction, 2 to 10 years’ imprisonment for the felonious assault conviction, 30 months to 10 years’ imprisonment for th e carrying a conceale d weapon convicti on, five years’ imprisonment for the felony-firearm, second offense, conviction , and 30 months to 10 years’ imprisonment for the felon-in -possession conviction. We affirm

. This appeal arises out of the nonfatal shooting of Clyde Beauc hamp on September 29, 2014, in Detroit, Michigan. On appeal, defendant argues that h e was denied the effective assistance of counsel, that the t rial court’s verdicts are inco nsistent, and that his AWIGBH and felonious assault convictions vi olate his protection against do uble jeopardy. We disagree.

I. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that, where the prosecution failed to admit e vidence of defendant’s prior qualifying felony conviction during her case-in chief, de fense counsel was ineffective by failing to move for a directed verdict of acquittal of the felo n-in-possession charge after the close of the prosecution’s proofs. Def endant claims that by failing to move for a direc ted verdict at the appropriate time, defense counsel “supplied the missing evidenc e for the felon-in-possession charge” by allowing defendant to testify regarding, and be cros s-examined about, his criminal history. He claims this resulted in deficient representation a nd that defendant was prejudiced as a result. We disagree.-2- “Whether a defendant has been denied the effective assistance of counsel is a mixed question of fact and constitutional law.” Id . at 187, citing People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002). “Effective assistance of counsel is presu med, and the defendant bears a heavy burden of proving otherwise.” People v Lockett , 295 Mich App 165, 187; 814 NW2d 295 (2012). To establish ineffectiv e assistance of counsel, a defe ndant must show that counsel’s performance “fell below an objective standard of reasonableness ” and that, but for the deficient representation, “there is a reasonable probability that the out come of defendant’s trial would have been different.” Solloway , 316 Mich App at 188, citing People v Carbin , 463 Mich 590, 600; 623 NW2d 884 (2001), citing Strickland v Washington , 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Because defendant failed to raise this issue in the trial court in connection with a motion for a new trial or an evidentiary hear ing, this Court’s review is limited to mistakes on the record. See People v Solloway , 316 Mich App 174, 188; 891 NW2d 255 (2016).

In the case at bar, while it certainly would have been desirab le from defendant’s perspective for defense counsel to move for a directed verdict after the prosecution’s case-inchief, and even if we assumed for the sake of argument that fai lure to do so was deficient, defendant has not met his burden to prove that, but for trial c ounsel’s deficient representation, “there is a reasonable probability that the outcome of defendan t’s trial would have been different.” Solloway , 316 Mich App at 188.

Defendant assumes that, had trial counsel moved for a directedverdict on the felon-inpossession charge after the close of the prosecution’s case, it is reasonably probable that the court would have granted the motion. However, the trial court might also have reserved its ruling until after the close of all the evidence. MCR 6.419(B) . Further, it is highly likely that the prosecution would have sought to co rrect its oversight by movin g to reopen the proofs to present evidence of defendant’s ineligi bility to possess a firearm, and that the trial court would have granted its motion. See, e.g., People v Keeth , 193 Mich App 555, 560; 484 NW2d 761 (1992). 1

“The reopening of proofs rests within the sound discretion of the trial court.” Id . “The relevant factors are whether any undue advantage would be taken by the party moving to reopen the proofs and whether there is any showing of surprise or prej udice to the nonmoving party.” Id . Here, the prosecution’s failure to present evidence of defen dant’s ineligibility to possess a firearm was an oversight, and defendant was aware of his prior felony record and of the charges against him. Accordingly, neither undue advantage to the prose cution nor surprise or prejudice to defendant would have barred the trial court from exercising its discretion to reopen the proofs to allow the prosecution to correct its omission. In light of the foregoing, we conclude that defendant has not met his burden of establishing that, even if defense counsel had moved for a

1 See also People v Bryant , unpublished opinion of the Court of Appeals, issued April 12, 2007 (Docket No. 265908), p 8, where the prosecution moved to reopen the proofs to present evidence of the defendant’s ineligibil ity to possess a firearm. Unpubli shed opinions of this Court have no precedential effect, but may be considered persuasive. MCR 7.2 15(C)(1).-3- directed verdict after the prosecution closed its case, there i s a reasonable probability that the outcome of the trial would have been different. Solloway , 316 Mich App at 188.

II. INCONSISTENT VERDICTS

Next, defendant argues that the trial judge rendered inconsist ent verdicts when he found defendant guilty of both AWIGBH and felonious assault. We disa gree. Defendant failed to preserve this issue for appellate review by raising it in the t rial court. People v Metamora Water Serv Inc. , 276 Mich App 376, 382; 741 NW2d 61 (2007). Consequently, our review is limited to plain error affecting defenda nt’s substantial rights. People v Cameron , 291 Mich App 599, 617; 806 NW2d 371 (2011). Generally, to show that error affected su bstantial rights, it must be proven “that the error affected the outcome of the lower court proceedings.” Id . (citation omitted).

Although juries may render inconsistent or illogical verdicts, our Supreme Court has held that “a trial judge sitting as the trier of fact may not enter an inconsistent verdict.” People v Ellis , 468 Mich 25, 26; 658 NW2d 142 (2003) (quotation marks and cit ation omitted). A verdict is inconsistent when it “cannot b e rationally reconciled” with the factual findings. Id . at 27. If there is a factual inconsistency between the trial court’s fact ual findings and its verdicts, reversal is required. See People v Smith , 231 Mich App 50, 53; 585 NW2d 755 (1998).

Defendant argues that where AWI GBH requires defendant to have acted with the intent to commit great bodily harm, felonious assault, “by statutory d efinition, occurs when a person commits an assault with a dangerous weapon but without the intent to do great bodily harm.” Thus, defendant argues, “[t]he factual underpinnings for the tw o verdicts were inconsistent.” Defendant errs by assuming that the absence of an element const itutes an element that the prosecutor must prove beyond a rea sonable doubt in a criminal t rial.

In People v Doss , 406 Mich 90, 96-99; 276 NW2d 9 (1979), our Supreme Court held that the absence of an element is not an additional element that the prosecution must prove beyond a reasonable doubt. The Court in Doss considered whether the absence of malice from the crime of manslaughter was, in fact, an essential element of manslaugh ter. Id. at 97. In other words, must a prosecutor prove that a d efendant acted without malice i n order to obtain a conviction for manslaughter? The court concluded that, “[w]hile the absence o f malice is fundamental to manslaughter in a general definitional sense, it is not an actu al element of the crime itself [that] the people must establis h beyond a reasonable doubt.” Id. at 99.

The same reasoning applies in t he case at bar. The absence of intent to commit murder or to inflict great bodily harm less than murder is fundamental to felonious assault “in a general definitional sense,” but it is not an actual element of the cri me itself. Id . The elements of felonious assault are “(1) an a ssault, (2) with a dangerous wea pon, and (3) the intent to injure or place the victim in reasonable apprehension of an immediate bat tery.” People v Nix , 301 Mich App 195, 205; 836 NW2d 224 (2013). The elements of AWIGBH are “(1) an attempt or threat with force or violence to do corporal harm to another (an assau lt), and (2) an intent to do great bodily harm less than murder.” People v Stevens , 306 Mich App 620, 628; 858 NW2d 98 (2014) (quotation marks and citation omitted). Felonious assault requ ires the use of a dangerous weapon, but not the intent to do great bodily harm; AWIGBH does not require the use of a-4- dangerous weapon, but it does requ ire the intent to do great bo dily harm less than murder. The trial court found that defendant assaulted the victim with a da ngerous weapon, and thus that he was guilty of felonious assault. The trial court further found that defendant assaulted the victim intending to do him great bodily harm less than murder, and so found him guilty of AWIGBH. The trial court’s verdicts may be reconciled with its factual f indings, it did not render inconsistent verdicts. Ellis , 468 Mich at 27. Accordingly, defendant has failed to demonst rate a plain error affecting hi s substantial rights. People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).

III. DOUBLE JEOPARDY

Finally, defendant argues that his AWIGBH and felonious assaul t convictions violate double jeopardy principles. Again , we disagree. Defendant fai led to preserve this issue for appellate review by raising it in the trial court. See People v Strickland , 293 Mich App 393, 401; 810 NW2d 660 (2011). Consequently, our review is limited to pl ain error affecting defendant’s substantial rights. Id . at 401. Generally, to show th at error affected substantial r ights, it must be proven “that the error affected the outcome of the lower court proceedings.” People v Carines

, 460 Mich at 763.

Both the United States and Michigan Constitutions prohibit pla cing a defendant twice in jeopardy for a single offense. US Const, Am V; Const 1963, art 1, § 15; Blueford v Arkansas

, 566 US 599; 132 S Ct 2044, 2050; 182 L Ed 2d 937 (2012); People v Ream , 481 Mich 223, 227; 750 NW2d 536 (2008). “The Double Jeopardy Clause affords indiv iduals three related protections: (1) it protects agai nst a second prosecution for t he same offense after acquittal; (2) it protects against a second prosecution for the same offense afte r conviction; and (3) it protects against multiple punishments for the same offense.” People v Smith , 478 Mich 292, 299; 733 NW2d 351 (2007) (quotation marks and citation omitted). At iss ue in this case is the third element: whether defendant’s AWIGBH and felonious assault convi ctions violate defendant’s protection against multiple punish ments for the same offense.

“The validity of multiple puni shments under the double jeopard y provisions of the United States and Michigan Constitutions is generally determined under the ‘same-elements test,’ which requires the reviewing court to determine ‘ “whether each provi sion requires proof of a fact which the other does not.” ’ ” Strickland , 293 Mich App at 401, quoting Smith , 478 Mich at 305, 315-316, quoting Blockburger v United States , 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932). “Michigan’s Supreme Court has determined that convicti on of both [AWIGBH] and felonious assault does not violate the constitutional double je opardy protections because the two crimes have different elements.” Strickland , 293 Mich App at 401-402, citing People v Strawther (Mem), 480 Mich 900; 739 NW2d 82 (2007). 2 “This Court is bound to follow the

2 Defendant acknowledges that the prevailing law in Michigan dir ectly conflicts with his argument; nevertheless, he urges t his Court to “express reserva tions about following” that jurisprudence. Defendant bases h is request on his contention t hat our Supreme Court has never examined the issue of intent as it relates to felonious assault , which specifically requires a defendant to have acted without the intent to murder or to do g reat bodily harm less than murder.-5- decisions of our Supreme Court.” Strickland , 293 Mich App at 402. Acc ordingly, defendant has failed to show plain error affec ting his substantial rights.

III. CONCLUSION

We conclude that defendant has not met his burden to establish that, but for trial counsel’s failure to move for a directed verdict after the pros ecution’s case, there is a reasonable probability that the outcome of the trial would have been diffe rent. Nor has he demonstrated error in the trial court’s finding him guilty of both felonious assault and AWIGBH, or that such convictions violated his double jeopardy protections.

Affirmed.

/s/ Michael J. Kelly /s/ Jane M. Beckering

As indicated above, however, this absence of intent to murder, or to do great bodily harm less than murder, is not an element in the crime of felonious assaul t. As also indicated above, the crimes of felonious assault and AWIGBH have different elements and therefore meet the Blockburger test. Accordingly, convictions f or both do not violate a defe ndant’s double jeopardy protections.