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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- Appellee, UNPUBLISHED

January 2, 2018

v No. 333826

Kent Circuit Court

DARIN ALEXANDER BROWN, LC No. 16

- 001646

- FH

Defendant

- Appellant.

Before: H OEKSTRA

, P .J., and S TEPHENS and S HAPIRO

, JJ.

P ER C URIAM

.

Defendant appeals his convictions, after a bench trial, of one count of larceny in a

building, MCL 750.360, and three counts of stealing a financial transaction device, MCL

750.157n(1)

. Defendant was sentenced, as a fourth

- offense habitual offender, MCL 769.12, to

concurrent prison terms of 34 to 180 months for each conviction. We affirm.

I. FACTS

On February 2, 2016, around 9:30 p.m., the victim went to a bar with some friends and

f amily to celebrate a friend’s wedding. On arrival, the victim put her purse over her coat on the

back of her chair. After about an hour, the victim got up to use the restroom and noticed that her

purse was still where she left it on her chair. She also noticed defendant and at least three to four

other men sitting at a booth directly behind the table where she and her friends were seated.

About an hour later, the victim got up to use the restroom a second time, but when she went to

grab her purse to tak e it with her, she discovered that it was gone from where she left it.

One of the victim’s friends commented that she had seen defendant rummaging through

papers over at his table. When the victim and her friends went over to defendant’s table, which

was unoccupied at that time, they found the victim’s purse and some of its contents under the

table, but her credit cards were gone. As they were reporting the theft to the security guards,

they spotted defendant and two of his friends 1 coming from the restr oom area, and pointed them

out to the security guards. Defendant’s two friends were searched

, but nothing was found on

them. At first, defendant refused to be searched, but when he was informed that the police was

1 At that point, defendant’s other two friends had left the bar.- 2

- on their way, he agreed to a search. Wh en the security guards searched defendant, they found

some of the victim’s credit cards and her cellphone on him.

II. SUFFICIENCY OF EVIDENCE

On appeal, defendant only challenges his larceny conviction, 2 arguing that it was against

the great weight of the evidence because the verdict was based on a clearly erroneous finding of

fact

— that defendant was rifling through the victim’s purse when the prosecution witness

testified that she saw defendant rifling through papers

. However, the prosecution maintains t hat

defendant’s argument is better characterized as a challenge to the sufficiency of the evidence.

Nevertheless, we will address defendant’s challenge under both standards.

In reviewing a challenge to the sufficiency of the evidence, 3 “this Court review s the

evidence in the light most favorable to the prosecution to determine whether any rational trier of

fact could find the essential elements of the crime were proven beyond a reasonable doubt.”

People v Robinson

, 475 Mich 1, 5; 715 NW2d 44 (2006). “[C ]ircumstantial evidence and

reasonable inferences arising from that evidence can constitute satisfactory proof of the elements

of a crime.” People v Lee

, 243 Mich App 163, 167

- 168; 622 NW2d 71 (2000).

MCL 750.360 provides that “[a]ny person who shall com mit the crime of larceny by

stealing in

. . . any building used by the public shall be guilty of a felony.” The essential

elements of larceny in a building are “(a) a trespassory taking and (b) the carrying away (c) of

the personal property (d) of another (e) with intent to steal that property” and (f) the taking

occurred “within the confines of [a] building.” People v March

, 499 Mich 389, 401; 886 NW2d

396 (2016)

. Larceny is a specific

- intent crime, and the intent required is “to permanently deprive

the owner of his [or her] property.” People v Cain

, 238 Mich App 95, 119; 605 NW2d 28 (1999)

(quotation marks and citation omitted). “[T]he intent to permanently de prive includes the

retention of property without the purpose to return it within a reasonable time

. . . .” People v

Harverson

, 291 Mich App 171, 178; 804 NW2d 757 (2010). “Because intent may be difficult to

prove, only minimal circumstantial evidence is necessary to show a defendant entertained the

requisite intent.” Id

. Criminal intent can be inferred from a defendant’s “words or from the act,

means, or the manner employed to commit the offense.” People v Hawkins

, 245 Mich App 439,

458; 628 NW2d 105 (2001).

Here, the evidence presented shows that defendant took the victim’s purse, removed the

victim’s credit cards from the purse, and took the victim’s cell phone from her coat pocket. The

victim’s coat

, containing her cell phone and her purse

, was dr aped over the back of her chair, and

defendant sat at the booth directly behind the victim’s chair. The victim’s friend testified that

she saw defendant rifling through papers, and that once the victim realized her purse was

missing, she and her friend fo und papers and other items from the purse beneath the booth where

2 Defendant does not challenge his convictions for three counts of stealing a financial transaction

device as being against the great weight of the evidence.

3 We review de novo a challenge to the sufficiency of the evidence. People v Meissner

, 294

Mich App 438, 452; 812 NW2d 37 (2011).- 3

- defendant had been sitting. The victim’s purse was also found against the wall under the booth.

The victim’s cellphone and credit cards were recovered from defendant’s possession.

We find unpersuasive, defendant’s theory that one of the other men with him that night

could have taken the taken the purse, removed the credit cards, and then given defendant the

credit cards without defendant’s knowledge that they were stolen, which would negat e the

elements of a trespassory taking, a carrying away, and a specific intent to permanently deprive

the victim of her personal property. This is because this theory negates the direct evidence

offered at trial, through testimonies of the three prosecut ion witnesses at trial and the inferences

arising from that evidence. Moreover, the prosecution is not required to disprove every

conceivable alternate theory. People v Nowack

, 462 Mich 392, 400; 614 NW2d 78 (2000).

We also hold that sufficient evidence was presented to show that defendant had the

requisite intent to permanently deprive the victim of her purse, her credit cards, and her cell

phone. In the instant case, defendant left the purse under the booth and against the wall, in a

dark club, rather than return the purse to the victim. Therefore, a rational trier of fact could find

that defendant did not intend to return the purse within a reasonable time, which demonstrates

the specific intent to permanently deprive. Harverson

, 291 Mich App at 178

. Moreover, with

regard to the cell phone and credit cards, defendant had them in his possession and did not offer

them to the security guards when he and his friends were confronted about the missing items.

Defendant’s refusal to reveal the contents of his right pants pocket and possession of the stolen

items surpasses the requirement of minimal circumstantial evidence needed to demonstrate

defendant’s intent.

Reasonable inferences drawn from evidence presented through the testimony of the three

prosecu tion witnesses provided sufficient evidence to support defendant’s larceny conviction.

III. GREAT WEIGHT OF EVIDENCE

We also reject defendant’s argument that the trial court’s verdict was against the great

weight of the evidence. 4

“The test to determine whether a verdict is against the great weight of the evidence is

whether the evidence preponderates so heavily against the verdict that it would be a miscarriage

of justice to allow the verdict to stand.” People v Musser

, 259 Mich App 215, 218

- 219; 673

NW 2d 800 (2003). Determining whether a verdict is against the great weight of the evidence

requires review of the whole body of proofs. People v Herbert

, 444 Mich 466, 475; 511 NW2d

654 (1993), overruled in part on other grounds in People v Lemmon

, 456 Mic h 625; 576 NW2d

129 (1998). The issue usually involves matters of credibility or circumstantial evidence, In re

Robinson

, 180 Mich App 454, 463; 447 NW2d 765 (1989), but if there is conflicting evidence,

the question of credibility should be left for the fact

- finder, Dawe v Bar

- Levav & Assoc (On

Remand), 289 Mich App 380, 401; 808 NW2d 240 (2010).

4 Although defendant did not move for a new trial at t he trial court level, defendant’s great

weight argument is preserved on appeal because he was convicted following a bench trial. MCR

7.211(C)(1)(c).- 4

- There was direct evidence that the victim’s cellphone and credit cards were recovered

from defendant’s possession, that he was seen rifling through papers at hi s booth, and that the

purse was found beneath the booth where he had been sitting. There was also evidence of intent

given defendant’s failure to provide information about the missing items when questioned. By

contrast, defendant offers only the wholly u nsupported claim that others stole the property and

that he accepted receipt of them not knowing they were stolen. The evidence does not

preponderate heavily against the verdict.

IV. RIGHT TO COUNSEL

Finally, defendant argues that he was entitled to subs titute counsel because defense

counsel was unprepared and there had been a complete breakdown in the relationship between

defendant and defense counsel. 5

The federal and State constitutions grant the right to counsel in all criminal prosecutions.

US Cons t, Am VI; Const 1963, art 1, § 20. While an indigent defendant is guaranteed the right

to counsel, a defendant is not necessarily guaranteed the attorney of his or her choice. People v Traylor

, 245 Mich App 460, 462; 628 NW2d 120 (2001), and is not entit led to substitution of

appointed counsel merely because the defendant is dissatisfied with appointed counsel. People v Bradley

, 54 Mich App 89, 95; 220 NW2d 305 (1974). However, a defendant is entitled to

substitution of defense counsel if the discharge of the first attorney is for (1) good cause and (2)

does not disrupt the judicial process. People v Buie (On Remand)

, 298 Mich App 50, 67; 825

NW2d 361 (2012).

On the first day of trial, defendant informed the court that he was not ready for trial and

wa s unhappy with defense counsel’s performance. According to defendant, “I have not even

been warned that I had court or told that I had court today. Nobody has told me. I did not

receive any mail from the courts or my lawyer. I have not seen my lawyer s ince the trial

conference hearing. I haven’t talked to him or any of that.” Defense counsel asked the court if

he could “address the concerns raised by defendant,” but the trial court stated that it would allow

counsel to put the concerns on the record a t the conclusion of trial. However, this issue was

never raised or addressed afterwards.

When defendant asserted that his counsel did not inform him of the trial date, did not

meet him to prepare for trial, and did not provide him with discovery material s, the trial court

was obligated to “hear his claim and, if there is a factual dispute, take testimony and state his

findings and conclusions.” People v Ginther

, 390 Mich 436, 442; 212 NW2d 922 (1973). In the

instant case, the trial court did not determi ne whether defendant’s allegation s were true and did

not allow defense counsel to address the concerns. Although the trial court stated that it would

allow defense counsel to address the concerns at the conclusion of trial, this issue was never

revisited prior to the verdict. The court made no fact finding as to the veracity of the defendant‘s

5 A trial court’s decision regarding a defendant’s request for substitution of appointed counsel is

review ed for an abuse of discretion. People v Traylor

, 245 Mich App 460, 462; 628 NW2d 120

(2001). A trial court abuses its discretion if its decision falls outside the range of principled

outcomes. People v Babcock

, 469 Mich 247, 269; 666 NW2d 21 (2003).- 5

- claims and made no ruling on the implied request to substitute counsel. Accordingly, the trial

court did not exercise its discretion.

Failure to exercise discretion is an abuse of discretion. Loutts v Loutts

, 298 Mich App

21, 24; 826 NW2d 152 (2012). Despite this error, we do not reverse. We recognize that

although a complete breakdown of the attorney

- client relationship may justify a ppointing a new

counsel, Buie

, 298 Mich App at 67, however, a trial court’s failure to explore a defendant’s claim

that his assigned counsel should be replaced does not necessarily require setting aside a subsequent conviction. Ginther

, 390 Mich at 442. In the instant case, defendant did not

categorically request for the removal of counsel. Rather he complained about counsel’s

performance. A “mere allegation that a defendant lacks confidence in his or her attorney” or “a

defendant’s general unhappiness with counsel’s representation is insufficient” to find good cause

for substitution of counsel. People v Strickland

, 293 Mich App, 393, 398; 810 NW2d 660.

Nevertheless, even if we were to treat defendant’s dissatisfaction with counsel as a request for a

n ew counsel, there was no prejudice because defense counsel proceeded to adequately represent

defendant, was familiar with the facts of the case, thoroughly cross examined witnesses, and

acted diligently to protect defendant’s rights. In fact, the trial co urt described defense counsel’s

closing argument as “penetrating,” and praised him for “present[ing] a well

- articulated defense

theory.” Buie

, 298 Mich App at 67 (stating that where defense counsel performs adequately to

protect defendant’s interests at t rial, the conviction should not be set aside even where the trial

court did not consider defendant’s allegations of attorney disinterest). Accordingly, we find no

abuse of discretion.

Affirmed.

/s/ Joel P. Hoekstra

/s/ Cynthia Diane Stephens

/s/ Dougl as B. Shapiro