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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 16, 2017

v No. 329447 Wayne Circuit Court ANTHONY LEE-VICTOR WILLIAMS, LC No. 15-003401-FC

Defendant-Appellant.

Before: W ILDER , P.J., and C AVANAGH and K. F. K ELLY , JJ.

P ER C URIAM

.

Defendant appeals as of right his jury trial convictions of ki dnapping, MCL 750.349, and first-degree criminal sexua l conduct (CSC), MCL 750.520b(1)(c). We affirm.

Defendant first argues that there was insufficient competent e vidence that he committed the offenses. We disagree. As explained in People v Bailey , 310 Mich App 703; 873 NW2d 855 (2015):

This Court reviews de novo suffic iency-of-the-evidence issues. To determine whether the prosecutor has presented sufficient evide nce to sustain a conviction, [appellate courts] review the evidence in the light most favorable to the prosecutor and determine whether a rational trier of fact c ould find the defendant guilty beyond a reasonable doubt. The standard of re view is deferential: a reviewing court is required to draw all reasonab le inferences and make credibility choices in suppor t of the jury verdict. Notab ly, the prosecutor is not obligated to disprove every reasonable theory consistent wi th innocence to discharge its responsibility; it need only convince the jury in the face of whatever contradictory evidence the defen dant may provide. Further, [c] ircumstantial evidence and reasonable inferences arising from that evidence c an constitute satisfactory proof of the elements of a crime. [ Id . at 713 (internal quotation marks and citations omitted).]

Defendant does not challenge the sufficiency of the evidence i n support of the specific elements of kidnapping and first- degree CSC. Instead, he asser ts that the victim’s testimony was incompetent or incredible, and he also suggests that there was insufficient evidence that he was the perpetrator of the offenses. “[I]dentity is an element of every offense.” People v Yost , 278 Mich App 341, 356; 749 NW2d 753 (2008).-2- Defendant argues that the victim’s testimony was not “competen t” because she changed her story, she could not initially identify him, she could only identify him in court, and only one of eight samples from the victim was DNA-tested. The alleged d eficiencies in the victim’s testimony relate to her credibility, and the fact that only one of the samples from the victim was DNA-tested goes to the weight of the evidence. “This Court wil l not interfere with the trier of fact’s determinations regarding the weight of the evidence or t he credibility of witnesses.” People v Stevens , 306 Mich App 620, 628; 858 NW2d 98 (2014).

Further, defendant admitted to having sex with the victim, but claimed that he paid her for sex; thus, defendant’s challenge regarding the DNA evidence linking him to the victim is not persuasive. Moreover, the victi m testified that she was unable to identify defendant from the pre-trial photographic lineup because of the poor quality of th e black and white photographs. However, she saw and spoke to defendant before he attacked her and she testified that she was 100 percent certain that defendant was her attacker. Viewing t he evidence in the light most favorable to the prosecution, Bailey , 310 Mich App at 713, the jury c ould have reasonably found beyond a reasonable doubt that defe ndant committed the charged crimes of kidnapping and firstdegree CSC based on the victim’s identification of defendant, p olice testimony, and the DNA evidence indicating that defenda nt’s DNA matched the DNA from t he victim’s vaginal swab.

Defendant next argues that he is entitled to resentencing beca use the trial court engaged in improper judicial fact-finding in scoring offense variables (OVs) 1, 3, 4, 8, 10, and 11, which affected his sentencing guide lines range. We disagree.

Whether a defendant’s sentence violates the Sixth Amendment is reviewed de novo. People v Lockridge , 498 Mich 358, 373; 870 NW2d 502 (2015). “[A] preserved, nons tructural error is subject to the harmle ss beyond a reasonable doubt test .” People v Terrell , 312 Mich App 450, 464; 879 NW2d 294 (2015), lv hel d in abeyance ___ Mich ___ ; 878 NW2d 480 (2016).

In Lockridge , 498 Mich at 389, our Supreme Court concluded that Michigan’s sentencing guidelines violate the Sixth Amendment. To remedy the constitu tional violation, the Court held that the sentencing guide lines are advisory only. Id . at 391. However, sentencing courts must “continue to consult the applicable guidelines range and take i t into account when imposing a

sentence.” Id . at 392. Further, the sentencing court is permitted to score the OVs based on facts not admitted by defendant or found by the jury beyond a reasona ble doubt. Id . at 392 n 28.

When a defendant’s sentence is calculated using a guidelines mi nimum sentence range in which OVs have been scored on the basis of facts not a dmitted by the defendant or found beyond a reasonable doubt by the jury, the s entencing court may exercise its discretion to depart from that guidelines rang e without articulating substantial and co mpelling reasons for doing so. A sentence that departs from the applicable guidelines range will be reviewed b y an appellate court for reasonableness. [ Id . at 391-392 (footnote omitted).]

Contrary to defendant’s assertion, then, the trial court was r equired to score the OVs on the basis of judicially-found facts under Lockridge , 498 Mich at 392 n 28 (“Our holding today does nothing to undercut the requirement that the highest numbe r of points possible must be assessed for all OVs, whether using judge-found facts or not.”) . As long as the trial court-3- recognized and treated the guidelines as advisory, any judicial fact-finding did not violate the Sixth Amendment. And it is apparent from the parties’ argument s and the court’s remarks at sentencing that the trial court wa s aware that the guidelines r ange should be treated as merely advisory under Lockridge . Thus, the trial court did not err to the extent that it reli ed on judicial fact-finding to score the OVs, and it properly considered defen dant’s guidelines range based on those scores. Accordingly, there was no error. 1

We also reject defendant’s claim that his sentence is unreason able. The trial court sentenced defendant within the guidelines range. Because there was no departure, it is unnecessary to review defendant’s sentence for reasonableness. See Lockridge , 498 Mich at

392. 2

Finally, in a supplemental brief filed pursuant to Supreme Cou rt Administrative Order No. 2004-6, Standard 4, defendant a rgues that trial counsel was ineffective for failing to investigate the case, challenge the prosecution’s evidence, int roduce defendant’s medical records as evidence, and interview or r etain an expert. We disagree.

“A claim of ineffective assist ance of counsel should be raised by a motion for a new trial or an evidentiary hearing.” People v Rodriguez , 251 Mich App 10, 38; 650 NW2d 96 (2002).

Defendant raised the issue of i neffective assistance of counsel and requested a Ginther 3 hearing in his pro se motion to remand, but this Court treated the moti on as a motion for leave to file an untimely pro se motion to remand, denied the motion for leave, and did not accept the pro se motion to remand for filing. People v Williams , unpublished order of the Court of Appeals, entered November 30, 2016 (Doc ket No. 329447). Therefore, our review of this issue is limited to errors apparent from the record. People v Wilson , 242 Mich App 350, 352; 619 NW2d 413 (2000). In People v Jackson (On Reconsideration) , 313 Mich App 409; 884 NW2d 297 (2015), this Court explained:

It is strongly presumed that defense counsel rendered adequate assistance and made all significant decisio ns in the exercise of reasonabl e professional judgment. When reviewing defense counsel’s performance, the re viewing court

1 After Lockridge , a party may still raise evidentiary challenges to the scoring of the OVs, separate from a constitutional challenge. See People v Biddles , ___ Mich App ___, ___; ___ NW2d ___ (Docket No. 326140); slip op at 4. In this case, howe ver, defendant only alleges improper judicial fact-finding w ith regard to the scoring of OV s 1, 3, 4, 8, 10, and 11, and does not contend that the scoring of the OVs was unsupported by the evidence.

2 Moreover, in People v Steanhouse , 313 Mich App 1, 47-48; 880 NW2d 297 (2015), lv gtd 499 Mich 934 (2016), this Court held “that a sentence that fulfills the principle of proportionality under [ People v Milbourn , 435 Mich 630; 461 NW2d 1 (1990)], and its progeny, constitute s a reasonable sentence under Lockridge .” Under Milbourn and its progeny, a sentence that falls within the guidelines range is presumptively proportionate. People v Dukes , 189 Mich App 262, 266; 471 NW2d 651 (1991).

3 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-4- must first objectively determine whether, in light of all the c ircumstances, the identified acts or omissions were outside the wide range of pro fessionally competent assistance. Next, the defendant must s how that trial counsel’s deficient performance prejudiced his defen se—in other words, that there i s a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The defendant must estab lish both prongs of this test to prevail on his cl aim of ineffective assistance of counsel. In addition, to persuade a reviewing court that counsel was ineffective, a d efendant must also overcome the presumption that the challenged action was trial s trategy[.] [ Id . at 431 (internal quotation marks and citations omitted).]

Defendant complains that trial counsel failed to call any witn esses at trial. However, trial counsel called both the victim and defendant to testify. Defen dant fails to identify any witnesses that trial counsel should have called, other than an identifica tion expert, a crime scene reconstruction expert, and a me dical expert. But the decision regarding what witnesses to call is presumed to be a matter of trial strategy. Id . at 432 (citation omitted). Failure to call a witness will constitute ineffective assistance of counsel only if it de prives a defendant of a substantial

defense. Id. (citation omitted). Defendant does not describe what testimon y those experts could have provided or how their testi mony would have affected the ou tcome of the trial. Thus,

defendant fails to establish th at trial counsel’s performance w as deficient or that counsel’s failure to call additional witnesses deprived him of a substantial defe nse.

Defendant also argues that trial counsel failed to present any exculpatory evidence. The decision regarding what evidence to present is presumed to be a matter of trial strategy. Id

. (citation omitted). Failure to present evidence will constitut e ineffective assistance of counsel only if it deprives a defendant of a substantial defense. Id. (citation omitted). The only evidence that defendant identifies is his medical records, which he clai ms would have shown that his hand was paralyzed and, thus, that he was unable to commit the charg ed offenses. Defendant, however, has not submitted his medical records and, nonetheless , this Court’s review is limited to mistakes apparent on the record. Moreover, defendant appear s to say that his hand was partially or practically paralyzed (he says “partically [sic] paralyzed”), but he fails to explain how this would have rendered him unable to commit the charged o ffenses. Thus, defendant fails to establish that trial counsel’s performance was deficient, or that failure to present the medical records deprived him of a substantial defense.

Finally, defendant complains that trial counsel “barely made a ny objections,” but he fails to identify any objections that trial counsel should have made. He also fails to identify any other challenges to the prosecution’s evidence that trial counsel sho uld have made, or what any further-5- investigation would have revea led. Accordingly, defendant has failed to establish that trial counsel’s performance was defici ent or that any d eficient perfo rmance prejudiced his defense.

Affirmed.

/s/ Kurtis T. Wilder /s/ Mark J. Cavanagh /s/ Kirsten Frank Kelly