COA 366322 PEOPLE OF MI V KEVIN L LACROIX Opinion - Per Curiam - Unpublished 8/31/2026

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UNPUBLISHED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 31, 2026
9:47 AM
v No. 366322
Washtenaw Circuit Court
KEVIN L. LACROIX, LC No. 21-000546-FH
Defendant-Appellant.
Before: KOROBKIN, P.J., and RIORDAN and MARIANI, JJ.
PER CURIAM.
Defendant, Kevin L. LaCroix, was convicted by a jury of assault with intent to do great
bodily harm less than murder (AWIGBH), MCL 750.84(1)(a); third-offense domestic violence,
MCL 750.81(5); unlawful imprisonment, MCL 750.349b; and two counts of assault by
strangulation, MCL 750.84(1)(b). The trial court sentenced defendant to serve concurrent terms
of 5 to 10 years’ imprisonment for AWIGBH, 3 to 5 years’ imprisonment for third-offense
domestic-violence, 9 to 15 years’ imprisonment for unlawful imprisonment, and 5 to 10 years’
imprisonment for each count of assault by strangulation. Defendant now appeals his convictions
and sentences by right. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises from a domestic-violence incident between defendant and his then-
girlfriend (the victim) that occurred in July 2021. It is undisputed that, shortly before the incident,
defendant drove the two to a lake for a gathering; that they both drank alcohol while there; and
that defendant drove them home later that evening. At defendant’s jury trial in February 2023,
both he and the victim testified about the ensuing incident; their respective accounts differed
significantly.

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The victim’s testimony and a video recording1 captured by a surveillance camera outside
the home established that, shortly before entering the home, defendant became violent with the
victim in the carport by the home; defendant yelled at the victim, dragged her on the ground by
her hair toward the home, and physically assaulted her until she relented and entered the home
with him. According to the victim, defendant initiated the assault after accusing her of
“embarrassing” him at the gathering, and the assault then continued inside the home, with
defendant repeatedly striking, kicking, and choking her throughout the ordeal. Specifically, the
victim testified that defendant forced her into the home and then placed his arm around her neck
and choked her. Defendant eventually released the victim, and she fell to the floor. While she was
on the floor, defendant stomped on her hand, kicked her in the head with his steel-toed boot, and
placed his hands around her neck and choked her; she could not breathe and she involuntarily
urinated. Defendant did not stop choking her until he noticed that she was bleeding from her head,
at which point he forced her to shower and go to bed. Several hours later, while defendant was in
bed, the victim fled the home and reported the incident to the police.
The prosecution also presented testimony at trial from the officer who responded to the
incident. The officer, among other things, recounted what the victim told him at that time about
the incident, which was consistent with her trial testimony. In addition, the prosecution introduced
as evidence photos taken of the victim by the responding officer, which depicted injuries to her
arm, face, and head.
Defendant’s primary theory at trial was that the victim was highly intoxicated at the time
of the incident and that her memory of the incident was therefore inaccurate and unreliable. To
advance this theory, defendant relied heavily on cross-examination of the victim and his own
testimony, as well as closing argument. Defendant testified that the victim was very intoxicated
and became violent toward him during the drive home, and he tried “deescalating the situation”
once in the home by “hugging” her from behind. Defendant also admitted to kicking the victim in
the head but maintained that he had done so accidentally, testifying that the victim had thrown
herself onto the hallway floor and that he had tripped as he was trying to step over her.
Defendant was convicted and sentenced as previously described.2 This appeal followed.3
1 The victim testified that defendant installed a video-surveillance system on the inside and outside
of the home that they both had access to via a mobile application on their phones. The victim
testified that she obtained the video recorded by the outdoor camera by accessing the mobile
application; the victim later provided that video footage to the police and the prosecution, but she
was unable to recover any video from the indoor cameras because those cameras were “disabled”
or “not on.”
2 Defendant, in propria persona, filed a myriad of motions throughout the pretrial and posttrial
proceedings raising nearly all of the issues now presented on appeal.
3 When filing his brief on appeal with this Court, defendant also filed a motion to remand to the
trial court on several different grounds. This included a request to remand for him to view, or for
the trial court to conduct an in camera review of, the victim’s unredacted medical records to

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II. SPECIFIC UNANIMITY INSTRUCTION
We start with defendant’s argument in his Standard 4 brief4 that the trial court improperly
responded to a jury question regarding the unlawful-imprisonment charge. According to
defendant, this question suggested that the jury was confused about whether the elements of
unlawful imprisonment could be established by defendant dragging the victim by her hair toward
the home or by choking her inside the home, and the court should have responded to this confusion
by providing a specific unanimity instruction. Defendant, however, has failed to provide us with
the record necessary to verify the factual predicate of this claim. See People v Elston, 462 Mich
751, 762; 614 NW2d 595 (2000) (stating that a defendant-appellant bears “the burden of furnishing
the reviewing court with a record to verify the factual basis of any argument upon which reversal
was predicated”). The record before us contains neither a copy of the jury’s question nor a
recorded transcription of it. The record does contain a transcript of a posttrial hearing at which the
trial court briefly discussed its response to the jury’s question, but over the course of that hearing,
neither the parties nor the court stated the substance of the jury’s question.5 The precise question
posed by the jury is thus unknown.
As the appellant, defendant bore the burden of providing the question to us, securing a
stipulation about its content, or taking steps to settle the record so that we can duly review the issue
on appeal. MCR 7.210(B)(1)-(2) and (C); see also Elston, 462 Mich at 752. Defendant, however,
has done none of this, and has instead offered only a rough paraphrasing of what he believes the
jury’s question to have been based on what his trial counsel apparently told to him off the record
after the jury rendered its verdict. This is wholly inadequate to permit due appellate review of
determine if any of the redacted information would be helpful to his defense. After reviewing
defendant’s motion, this Court remanded this case for the limited purpose of an in camera review
of the redacted portion of the victim’s medical records. People v LaCroix, unpublished order of
the Court of Appeals, entered January 27, 2025 (Docket No. 366322). The trial court conducted
that review and concluded that the redacted portion of the records did not contain any information
that would have been helpful to the defense. Accordingly, while this issue appears in defendant’s
appellate brief, he has already received his requested relief as to it, and he has not challenged the
decision reached by the trial court on remand. The issue is thus moot, and we will not address it
further. See People v Gonzalez, 256 Mich App 212, 235 n 8; 663 NW2d 499 (2003).
4 In addition to filing an appellate brief with the assistance of counsel, defendant filed a
supplemental Standard 4 brief pursuant to Michigan Supreme Court Administrative Order No.
2004-6, 471 Mich c, cii (2004).
5 Additionally, the court’s discussion of its response to the jury’s question does not, on its face,
demonstrate any juror confusion regarding unanimity or the factual basis of defendant’s guilt as to
the unlawful-imprisonment charge, as claimed by defendant. See People v Cooks, 446 Mich 503,
516-518, 522, 524; 521 NW2d 275 (1994). It, at most, demonstrates that the jury had a question
regarding the unlawful-imprisonment charge during deliberations and that the court instructed the
jury to re-read its copy of the instructions for the definition of “restrain” as an element of unlawful
imprisonment and to continue its deliberations.

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defendant’s claim, and we thus cannot conclude that defendant has shown entitlement to relief on
its basis. See Elston, 462 Mich at 752.6
III. PROSECUTORIAL MISCONDUCT
Defendant next contends, in both his brief filed by counsel and his Standard 4 brief, that
the prosecutor made several remarks during her rebuttal argument that amounted to misconduct,
thereby depriving him of a fair trial. Because defendant failed to contemporaneously object and
request a curative instruction with respect to these comments, his challenge to them is unpreserved
and thus reviewed for plain error affecting substantial rights. See People v Bennett, 290 Mich App
465, 475; 802 NW2d 627 (2010). To obtain appellate relief under this standard, defendant must
show: (1) an error occurred, (2) the error was clear or obvious, and (3) the error affected substantial
rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). “The third requirement
generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower
court proceedings.” Id. And even when these three requirements are met, “[r]eversal is warranted
only when plain error resulted in the conviction of an actually innocent defendant or seriously
affected the fairness, integrity, or public reputation of judicial proceedings.” Bennett, 290 Mich
App at 475-476 (quotation marks and citation omitted).
Claims of prosecutorial misconduct are reviewed on a case-by-case basis by examining
pertinent portions of the record and evaluating the prosecutor’s remarks “in their proper context.”
People v Wisniewski, ___ Mich App ___, ___; ___ NW3d ___ (2025) (Docket No. 361978); slip
op at 13. “This Court also must review the prosecution’s comments in light of the arguments made
by defense counsel and the relationship they bear to the evidence admitted at trial.” Id. at ___; slip
op at 13 (quotation marks and citations omitted). Prosecutors are generally “afforded great latitude
regarding their arguments” and are “free to argue the evidence and all reasonable inferences from
the evidence as it relates to their theory of the case.” People v Unger, 278 Mich App 210, 236;
749 NW2d 272 (2008). But a prosecutor “may not appeal to the jury to sympathize with the
victim” or “urge the jury to convict as part of its civic duty or on the basis of its prejudices,” id. at
237, because doing so “injects issues broader than the guilt or innocence of the accused into the
trial,” People v McGhee, 268 Mich App 600, 636; 709 NW2d 595 (2005). Nor may a prosecutor
“argu[e] facts not in evidence,” “mischaracteriz[e] the evidence presented” at trial, Wisniewski,
___ Mich App at ___; slip op at 13, or suggest that he or she “has some special knowledge
concerning a witness’[s] truthfulness,” People v Isrow, 339 Mich App 522, 529; 984 NW2d 528
(2021) (quotation marks and citation omitted).
Defendant argues that the prosecutor, during her rebuttal argument, impermissibly
bolstered the victim’s credibility and appealed to the jury’s sympathies by repeatedly opining on
the veracity of the victim’s memory of the incident. But it is clear from the record that the
prosecutor’s statements regarding the victim’s memory were in direct response to defendant’s
assertions during closing argument that the victim “really didn’t have a memory of that day” and
6 Defendant’s corresponding claim that his trial counsel was ineffective for not requesting a
specific unanimity instruction fails for the same fundamental reasons. See People v White, 331
Mich App 144, 148; 951 NW2d 106 (2020) (confirming that the defendant bears the burden of
establishing the factual predicate of his or her ineffective-assistance-of-counsel claim).

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that her testimony was not worthy of belief because of her inability to remember certain things that
occurred shortly before the incident. See Wisniewski, ___ Mich App at ___; slip op at 13; Isrow,
339 Mich App at 529-530. Given defendant’s attempt during closing argument to impugn the
victim’s credibility in recounting the charged offenses, the prosecutor was permitted to argue that,
based on the admitted evidence, the victim rather than defendant was worthier of belief. See Isrow,
339 Mich App at 529-530 (noting that the prosecution “may comment on his [or her] own
witnesses’ credibility during closing argument, especially when there is conflicting evidence and
the question of the defendant’s guilt depends on which witnesses the jury believes”) (quotation
marks and citation omitted). Accordingly, defendant has not shown misconduct in this regard.
See Bennett, 290 Mich App at 475-476.7
That said, we see merit in defendant’s challenge to certain comments made by the
prosecutor during rebuttal argument regarding her own traumatic experiences. The prosecutor
stated:
[T]he thing about trauma is, this happened almost two years ago. We have all have
had events in our life and maybe they haven’t been as bad as [the victim] and maybe
they have been worse, but I remember as a kid that I’ve had pretty terrible things
happen to me and I can’t tell you what I was wearing that day, I can’t tell you the
date, I can’t tell you, you know, how I—I could probably tell you how I felt, but if
you start probing me and asking me questions, I’ll probably shutdown [sic] and not
even want to talk about it. I’ve had things happen four years ago that—that same
thing. I couldn’t remember every detail the day, I couldn’t remember if I went
bowling in the morning or what, but I can remember that exact event and I can
remember parts of it and I wanted to shut it down, I wouldn’t be able to tell you
especially if you start probing me questions, I probably wouldn’t want to talk about
it. This is trauma. This is someone who was abused by someone that she loved.
This is someone who was abused by someone that she had lived with and that’s
how trauma works. Trauma works in the fact that you remember specific details,
you shutout [sic] the other details, you don’t remember specifics of early in the
morning because they don’t even matter to you at that point. That’s trauma. She
had a traumatic experience happen to her and for this defense attorney to suggest
that everything she had said on the stand or parts of what she said on the stand or
don’t believe her story on the stand because she doesn’t remember, you know, . . .
that’s absolutely ridiculous.
7 Also unavailing is defendant’s unpreserved argument, in his Standard 4 brief, that the prosecutor
committed misconduct by asking the victim leading questions during direct examination.
Defendant does not provide any meaningful argument or identify any legal or factual support for
this claim, leaving it improperly presented for this Court’s review. See People v Burkett, 337 Mich
App 631, 639 n 4; 976 NW2d 864 (2021) (explaining that a party may not simply announce his
position and expect this Court “to discover and rationalize the basis for his claims, or unravel and
elaborate for him his arguments, and then search for authority either to sustain or reject his
position”) (quotation marks and citation omitted).

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Although made in response to defense counsel’s argument regarding the victim’s memory, these
comments focused on the prosecutor’s own personal experiences and struggles with trauma, which
the prosecutor offered to bolster the witness’s credibility but which themselves bore no relation to
the events underlying the charged offenses or the evidence adduced at trial. Indeed, the jury never
received testimony from any witnesses, or any other evidence, explaining how a traumatic event
might affect a person’s memory. The comments thus, at minimum, chafed against core limitations
on the scope of proper argument by the prosecutor. See Wisniewski, ___ Mich App at ___; slip op
at 13 (a prosecutor may not argue facts not in evidence); Isrow, 339 Mich App at 529 (a prosecutor
may not suggest he or she has special knowledge of witness’s truthfulness); Unger, 278 Mich App
at 237 (a prosecutor may not appeal to the jury to sympathize with the victim).
To the extent the comments “exceeded the bounds of proper argument,” Unger, 278 Mich
App at 237, however, defendant has not shown entitlement to relief on that basis. As discussed,
the comments were made in response to defense counsel’s arguments regarding the unreliability
of the victim’s memory, and “an otherwise improper remark may not rise to an error requiring
reversal when the prosecutor is responding to the defense counsel’s argument.” Id. at 238 (cleaned
up). The trial court also instructed the jury that the attorneys’ statements and arguments were not
to be considered as evidence and that it could not render a decision based on bias or sympathy, and
“jurors are presumed to follow their instructions.” Id. at 237. Furthermore, the prosecution
presented ample admissible evidence of defendant’s guilt at trial, which included the victim’s
detailed testimony regarding the events at issue, testimony from the responding officer and photos
of the victim’s injuries that were supportive of the victim’s account, and video footage showing
defendant yelling at and physically assaulting the victim in the carport immediately before the two
entered the home—footage which, we note, defendant has failed to provide to this Court for our
own review on appeal, despite our repeated requests that he do so. In light of these considerations,
defendant has failed to show that any impropriety in the prosecutor’s comments during rebuttal
denied him a fair trial or seriously affected the outcome of the proceedings. See Bennett, 290 Mich
App at 475-476; Unger, 278 Mich App at 237-238.8
IV. SUFFICIENCY OF THE EVIDENCE
Defendant argues that the prosecution presented insufficient evidence to support his
convictions of assault by strangulation. In determining whether the evidence is sufficient to sustain
a conviction, we review the record evidence de novo “in the light most favorable to the
8 We also find no basis for relief in defendant’s corresponding claim that his trial counsel was
ineffective for failing to object to these comments. To start, the record reflects that counsel did
object, but only when he moved for a mistrial after closing arguments had concluded rather than
in the midst of the prosecutor’s rebuttal. As counsel later explained, he did not contemporaneously
object to the comments because the prosecutor had an “emotional tone” and he “felt that a man
jumping up to silence her may have played bad in that moment.” The record thus demonstrates
that counsel made a strategic decision not to contemporaneously object, and defendant has offered
nothing to overcome the strong presumption that this strategic decision was reasonable. See
Unger, 278 Mich App at 242-243. Nor has he shown how it was reasonably probable that, had
counsel contemporaneously objected, the outcome of his trial would have been different. See id.

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prosecution” and consider whether it was sufficient “to justify a rational trier of fact in finding
guilt beyond a reasonable doubt.” People v Harris, 495 Mich 120, 126; 845 NW2d 477 (2014).
“Circumstantial evidence and reasonable inferences arising therefrom may constitute proof of the
elements of a crime, and it does not matter that the evidence gives rise to multiple inferences or
that an inference gives rise to further inferences.” People v Walker, 330 Mich App 378, 382; 948
NW2d 122 (2019) (cleaned up). It is the jury’s role, as factfinder, to determine “the weight of the
evidence [and] the credibility of witnesses,” People v Kanaan, 278 Mich App 594, 619; 751 NW2d
57 (2008), and “a reviewing court is required to draw all reasonable inferences and make
credibility choices in support of the jury verdict,” People v Oros, 502 Mich 229, 239; 917 NW2d
559 (2018) (quotation marks and citation omitted).
Defendant concedes that the prosecution presented sufficient evidence to demonstrate an
assault by strangulation. He argues, however, that the evidence was sufficient to support only one
of his convictions for assault by strangulation, not both. As explained in People v Lydic, 335 Mich
App 486, 498 n 9; 967 NW2d 847 (2021):
MCL 750.84(1)(b) criminalizes “assaulting another person by strangulation
or suffocation.” An assault is either an attempt to commit a battery or an unlawful
act that places another in reasonable apprehension of receiving an immediate
battery. And a battery is the consummation of an assault. Additionally, MCL
750.84(2) defines “strangulation or suffocation” as “intentionally impeding normal
breathing or circulation of the blood by applying pressure on the throat or neck or
by blocking the nose or mouth of another person.” [(Cleaned up.)]
Here, the prosecution presented sufficient evidence from which a rational jury could
conclude beyond a reasonable doubt that defendant committed two separate acts of “intentionally
impeding” the victim’s “normal breathing or circulation of [her] blood by applying pressure on
[her] throat or neck.” MCL 750.84(2). Testimony from both the victim and defendant established
that immediately after entering the home, defendant wrapped his arm around the victim’s neck
from behind, and the victim testified that her breathing was constricted when defendant did so.
Defendant eventually let go of the victim, who ended up on the hallway floor, and defendant then
kicked her in the head. The victim testified that after kicking her, defendant placed his hands
around her throat and squeezed, causing her to be unable to breathe and to involuntarily urinate.
Given this evidence, a rational jury could have found beyond a reasonable doubt that defendant
intentionally impeded the victim’s breathing or blood flow by applying pressure to her throat or
neck twice. See id. Accordingly, there was sufficient to support defendant’s two convictions of
assault by strangulation. See Harris, 495 Mich at 126.
V. SUBSTITUTION OF COUNSEL
Defendant next argues that the trial court abused its discretion by denying his pro per
motion to substitute defense counsel before sentencing.9 “The decision regarding substitution of
9 Defendant labeled his motion as a motion to “dismiss” counsel and did not expressly request
substitute counsel. Because, however, defendant did not unequivocally waive his right to counsel

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counsel is within the sound discretion of the trial court and will not be upset on appeal absent a
showing of an abuse of that discretion.” People v Buie (On Remand), 298 Mich App 50, 67; 825
NW2d 361 (2012) (quotation marks and citation omitted). A trial court abuses its discretion when
it renders a decision outside the range of reasonable and principled outcomes, which necessarily
occurs when it makes an error of law. Wisniewski, ___ Mich App at ___; slip op at 7.
Although “[a]n indigent criminal defendant is guaranteed the right to counsel[,]” he or she
“is not entitled to have the attorney of his [or her] choice.” People v McFall, 309 Mich App 377,
382; 873 NW2d 112 (2015) (quotation marks and citation omitted). As this Court has explained:
Substitution of counsel is warranted only upon a showing of good cause and where
substitution will not unreasonably disrupt the judicial process. Good cause may
exist when a legitimate difference of opinion develops between a defendant and his
[or her] appointed counsel as to a fundamental trial tactic, when there is a
destruction of communication and a breakdown in the attorney-client relationship,
or when counsel shows a lack of diligence or interest. A mere allegation that a
defendant lacks confidence in his or her attorney, unsupported by a substantial
reason, does not amount to adequate cause. Likewise, a defendant’s general
unhappiness with counsel’s representation is insufficient. [Id. at 382-383
(quotation marks and citations omitted).]
“The circumstances that would justify good cause rest on the individual facts in each case.” Buie,
298 Mich App at 67.
Shortly before sentencing, defendant filed a pro per motion requesting, among other things,
that his counsel be discharged due to alleged ineffective assistance at trial. The trial court properly
declined to consider the motion at that time because defendant was not permitted to file such a
motion while represented by counsel. See People v Kevorkian, 248 Mich App 373, 422; 639
NW2d 291 (2001). In any event, defense counsel subsequently noticed the motion so that the court
could consider and rule on it before sentencing. After considering the parties’ written submissions
and corresponding oral arguments on the matter, the court denied defendant’s motion.
The trial court did not abuse its discretion by denying defendant’s motion, as defendant
offered no argument to establish good cause to appoint new counsel for sentencing. See McFall,
309 Mich App at 382-383; Buie, 298 Mich App at 67. Although defendant raised claims about his
counsel’s performance at trial, he did not explain why those complaints rendered counsel unable
to adequately represent him at sentencing. Nor did he cite to a difference of opinion with counsel
about any fundamental issue that would impact his sentence. See McFall, 309 Mich App at 383.
Defendant’s assertions about counsel’s trial decisions may well have demonstrated that he
“lack[ed] confidence” in counsel, but those allegations must be supported with “a substantial
and ask to represent himself, see People v Anderson, 398 Mich 361, 367-368; 247 NW2d 857
(1976), and he additionally argued that he had “good cause” to dismiss the counsel appointed to
him at that time—a necessary element for substitution of counsel, see People v McFall, 309 Mich
App 377, 382-383; 873 NW2d 112 (2015)—we treat defendant’s motion as one to substitute
counsel.

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reason” to establish good cause, and defendant did not offer such support. Id. Moreover, the
record reflects that defense counsel vigorously represented defendant’s interests at sentencing by
voicing various arguments about the scoring of offense variables and by arguing for a lower
sentence on the basis of defendant’s military service. Accordingly, defendant has not shown that,
under the circumstances, the trial court abused its discretion by denying his motion. See id. at 382-
384; Buie, 298 Mich App at 67, 69-70.
VI. PRESENCE DURING JURY DELIBERATION AND SENTENCING
Defendant next argues in his Standard 4 brief that the trial court denied him his
constitutional right to be physically present during his criminal proceedings by holding him in
custody outside the courtroom during jury deliberations and by conducting his sentencing hearing
remotely via Zoom. “[A] criminal defendant has a constitutional right to be present at any stage
of a trial during which [his or her] substantial rights might be adversely affected, including during
sentencing.” People v Anderson, 341 Mich App 272, 281; 989 NW2d 832 (2022). We ordinarily
review issues implicating a criminal defendant’s constitutional rights de novo. People v
McKinney, ___ Mich App ___, ___; ___ NW3d ___ (2026) (Docket No. 371378); slip op at 4.
But because defendant failed to raise the issue of his physical presence when the exclusions at
issue occurred, his challenges are unpreserved and thus reviewed for plain error affecting
substantial rights. See Anderson, 341 Mich App at 279-281.
Defendant argues that he was excluded from the courtroom at a critical point in the trial
proceedings because he was not present when the trial court responded to the jury’s question about
the necessary elements of his unlawful-imprisonment charge. Defendant is generally correct that
a criminal defendant has the right to be present when the trial court instructs the jury. See People
v Powell, 303 Mich App 271, 275; 842 NW2d 538 (2013). But reversal is warranted on this ground
only if defendant can show that he was prejudiced by his absence—i.e., that had he been physically
present in the courtroom during jury deliberations, there is a reasonable probability that the
outcome of the proceedings would have been different and that that error seriously affected the
fairness, integrity, or public reputation of the proceedings. See Anderson, 341 Mich App at 283-
284. Defendant makes no meaningful argument, legally or factually, regarding prejudice. See
People v Burkett, 337 Mich App 631, 639 n 4; 976 NW2d 864 (2021). Defendant, at best, suggests
in other portions of his brief that had he been present during deliberations, he would have asked
for a specific unanimity instruction in response to the jury’s question. But, as discussed, we cannot
conclude that a specific unanimity instruction was warranted under the circumstances of this case,
as defendant failed to establish the factual predicate of that claim. Furthermore, any presumption
of prejudice from defendant’s absence was overcome by his counsel’s presence when the court
answered the jury’s question. See, e.g., People v France, 436 Mich 138, 165; 461 NW2d 621
(1990); see also People v Rodriguez, 251 Mich App 10, 32; 650 NW3d 96 (2002) (“A defendant
may not claim error regarding an issue on appeal where his lawyer deemed the action proper at
trial or otherwise acquiesced.”). Accordingly, defendant has not shown that reversal is warranted
on this basis.
Defendant also argues that the trial court violated his right to be physically present at
sentencing by only allowing him to be present remotely via Zoom. Again, defendant is generally
correct that he was entitled to be physically present at sentencing, as he was convicted of felonies
and did not expressly waive his right to be physically present. See Anderson, 341 Mich App

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at 281-283; see also MCR 6.006(A). Defense counsel, however, made clear at the first sentencing
hearing that defendant would be appearing remotely via Zoom for sentencing, and defendant did
not object to this arrangement, even after the court mentioned the possibility of an in-person
hearing for the second sentencing hearing. See Anderson, 341 Mich App at 283-285. The court
also permitted and encouraged defendant to fully participate in sentencing as if he was physically
present, and defense counsel both actively participated and vigorously advocated on defendant’s
behalf at the sentencing hearings. See, e.g., id. at 285-288 (concluding that the defendant was not
entitled to relief on his unpreserved challenge to remote sentencing because, in relevant part, both
he and his counsel had the opportunity to—and did—actively participate in the hearing as if they
were physically present and were able to make the arguments necessary to support his position).
Furthermore, the record reflects that defendant intentionally and voluntarily left Zoom in
the midst of both sentencing hearings.10 After defendant did so during the second sentencing
hearing, the court got defendant back on Zoom and instructed him that he could either voluntarily
participate in the proceedings or they would put him back in his jail cell and set up a monitor by
his door so that he could see and hear the proceedings. Defendant refused to voluntarily
participate, and so he was returned to his cell, and a monitor streaming the sentencing hearing was
placed by his door. But defendant again refused to participate in even that, intentionally covering
his cell window to completely block the monitor. Thus, even if defendant had experienced any
prejudice from his remote, rather than physical, presence at sentencing, defendant’s own conduct
undermines his attempt to now challenge his ability to participate in the proceedings. See People
v Witherspoon, 257 Mich App 329, 333; 670 NW2d 434 (2003) (explaining that “an appellant may
not benefit from an alleged error that the appellant contributed to by plan or negligence”).
In sum, defendant does not point to, nor do we see, anything in the record demonstrating
that his remote appearance affected the trial court’s determination of an appropriate sentence or
was connected to any other “irregularities with the sentencing other than that he was not
[physically] present in the courtroom at the time of sentencing.” Anderson, 341 Mich App at 287.
“There is no evidence, inference, or indication that defendant’s treatment likely would have been
different had he been face-to-face with the sentencing judge.” Id. Accordingly, defendant has not
demonstrated that he is entitled to relief on this basis, either. See id. at 287-288.
VII. EFFECTIVE ASSISTANCE OF COUNSEL
In his Standard 4 brief, defendant argues, on multiple different bases, that he was denied
the effective assistance of counsel. We have already addressed some of these challenges, and turn
now to the remainder of them.
10 Defendant left the first sentencing hearing after the trial judge refused to rule on his pro per
motion, which requested, among other things, that the judge recuse himself from the case due to
an alleged disqualification; the trial court ended the sentencing hearing shortly after it learned that
defendant had left the proceeding. Defendant left the second sentencing hearing after the trial
court substantively addressed—and denied—defendant’s pro per motions that, as discussed,
defense counsel had noticed for the court’s consideration.

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Whether counsel was ineffective presents a mixed question of fact and law, with factual
findings reviewed for clear error and questions of law reviewed de novo. People v Head, 323
Mich App 526, 539; 917 NW2d 752 (2018). “The trial court’s findings are clearly erroneous if
this Court is definitely and firmly convinced that the trial court made a mistake.” People v Shaw,
315 Mich App 668, 672; 892 NW2d 15 (2016).
“To establish ineffective assistance of counsel, a defendant must show (1) that counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms and (2) that there is a reasonable probability that, but for counsel’s error, the result of the
proceedings would have been different.” Id. “Reasonable probability means a probability
sufficient to undermine confidence in the outcome.” People v Leffew, 508 Mich 625, 637; 975
NW2d 896 (2022) (quotation marks and citation omitted). This Court presumes counsel was
effective, and a defendant carries a heavy burden to overcome that presumption. People v Muniz,
343 Mich App 437, 448; 997 NW2d 325 (2022). This burden includes “overcom[ing] the strong
presumption that counsel’s performance was born from a sound trial strategy.” People v
Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). That said, “a court cannot insulate the
review of counsel’s performance by calling it trial strategy; counsel’s strategy must be sound, and
the decisions as to it objectively reasonable.” People v Ackley, 497 Mich 381, 388-389; 870 NW2d
858 (2015) (quotation marks and citation omitted). The defendant also bears the burden of
establishing the factual predicate of his claim. People v White, 331 Mich App 144, 148; 951 NW2d
106 (2020).
A. FAILURE TO INVESTIGATE AND RESULTING FAILURE TO IMPEACH THE
VICTIM ON INCONSISTENT STATEMENTS
Defendant argues that his counsel failed to adequately investigate before trial. According
to defendant, had counsel conducted an adequate investigation, he would have found inconsistent
statements by the victim in police reports, medical records, body camera footage, preliminary
examination testimony, and phone call records. Defendant contends that as a result of the
inadequate investigation, defense counsel was unable to use the victim’s inconsistent statements
to impeach her at trial. But defendant has failed to establish the factual predicate of this claim, as
he has not provided any of the records allegedly containing inconsistent statements or otherwise
described the alleged statements in those records for our review. See id.; see also Burkett, 337
Mich App at 639 n 4. Furthermore, the record before us demonstrates that, during cross-
examination, defense counsel relied heavily on statements the victim had previously made to
police and medical personnel, as well as on her testimony at the preliminary hearing, to impeach
the victim’s trial testimony and undermine her credibility as a witness.
In making this argument, defendant primarily focuses on the cause of an injury to the
victim’s finger; defendant emphasizes that, while the victim testified at trial that defendant had
“bit” her finger, the records show the victim reporting that defendant had “stomped” on her finger.
But defense counsel used prior statements by the victim regarding her finger injury to impeach her
testimony on that topic at trial. When questioned about the inconsistency of her statements
regarding the injury, the victim conceded that she never told an officer or a treating physician that
defendant bit her finger and that she could not recall defendant ever biting her finger on the night
of the incident. She further testified that she later developed an infection in her finger and that a
physician had surmised, based on a photo of her finger injury, that the injury may have come from

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a bite. Defendant has not shown how counsel’s performance in this regard was ineffective, and
we see no basis for relief as to this claim.
B. FAILURE TO REQUEST BILL OF PARTICULARS
Defendant also argues that his trial counsel was ineffective for not requesting a bill of
particulars11 because “[w]ithout a bill of particulars, defense counsel couldn’t form a cohesive
defense strategy.” But defendant fails to acknowledge that he exercised his right to a preliminary
examination at which the victim testified about the incident, which adequately informed him (and
his counsel) of the nature of the charges against him and therefore obviated the need for a bill of
particulars. See People v Van Net, ___ Mich App ___, ___; ___ NW3d ___ (2026) (Docket No.
374944); slip op at 9. Accordingly, we see no basis for relief as to this claim, either.
VIII. SPEEDY TRIAL
In both his brief filed by counsel and his Standard 4 brief, defendant argues that he was
denied his constitutional right to a speedy trial, and the trial court therefore erred by denying his
motion to dismiss on that basis. We review de novo whether a defendant was denied his or her
constitutional right to a speedy trial, and review for clear error the trial court’s underlying factual
findings. People v Smith, 351 Mich App 1, 9; 34 NW3d 593 (2024).
A criminal defendant’s right to a speedy trial is guaranteed by the United States and
Michigan Constitutions, statute, and court rule. See US Const, Am VI; Const 1963, art 1, § 20;
MCL 768.1; MCR 6.004(A). “The time for judging whether the right to a speedy trial has been
violated runs from the date of the defendant’s arrest.” People v Williams, 475 Mich 245, 261; 716
NW2d 208 (2006) (quotation marks and citation omitted). To determine whether a defendant has
been denied the right to a speedy trial, a court must balance the four factors set forth in Barker v
Wingo, 407 US 514, 530; 92 S Ct 2182; 33 L Ed 2d 101 (1972): “(1) the length of delay, (2) the
reason for delay, (3) the defendant’s assertion of the right, and (4) the prejudice to the defendant.”
Smith, 351 Mich App at 9 (quotation marks and citation omitted). “Following a delay of eighteen
months or more, prejudice is presumed, and the burden shifts to the prosecution to show that there
was no injury.” Williams, 475 Mich at 262. “[A] presumptively prejudicial delay triggers an
inquiry into the other factors to be considered in the balancing of the competing interests to
determine whether a defendant has been deprived of the right to a speedy trial.” Id. (quotation
marks and citation omitted).
Applying this analytical framework to the instant case, we see no reversible error in the
trial court’s conclusion that defendant was not denied the right to a speedy trial.12 The near-19-
11 MCR 6.112(E) provides that “[t]he court, on motion, may order the prosecutor to provide the
defendant a bill of particulars describing the essential facts of the alleged offense.”
12 Defendant contends that the trial court did not itself adequately consider each of the Barker
factors in rejecting his speedy-trial claim. We agree with defendant that the court’s articulation of
its analysis was not as thorough in some respects as it could (or perhaps should) have been, but

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month delay between defendant’s arrest and trial gave rise to the presumption of prejudice, and
the burden of proof therefore shifted to the prosecution to show that there was no injury and that
defendant’s speedy-trial rights had not been violated. See id. As the trial court found,
approximately 14 months of the pretrial delay is attributable to defendant due to his significant
pretrial motion practice, which resulted in an adjournment on nine separate occasions, and his
request to adjourn trial due to his counsel’s scheduling conflicts. See People v Walker, 276 Mich
App 528, 542-543; 741 NW2d 843 (2007), vacated in part on other grounds 480 Mich 1059 (2008);
People v Cain, 238 Mich App 95, 113; 605 NW2d 28 (1999). The remainder of the delay is
“technically attributable to the prosecution” because it was the result of matters such as scheduling
“delays and docket congestion inherent in the court system,” but those delays “are given a neutral
tint and are assigned only minimal weight” in the speedy-trial analysis. Smith, 351 Mich App at
10 (quotation marks and citation omitted). The reasons for delay therefore do not support
defendant’s claim of a speedy-trial violation. Defendant did, however, assert his right to a speedy
trial when he moved to dismiss on that basis, which weighs in his favor. See id. at 15.
Finally, regarding prejudice, a defendant may experience two types: “prejudice to his
person and prejudice to the defense.” Williams, 475 Mich at 264 (quotation marks and citation
omitted). Although both types must be considered, “the most serious inquiry is whether the delay
has impaired the defendant’s defense.” People v Simpson, 207 Mich App 560, 564; 526 NW2d 33
(1994). Defendant argues that he suffered prejudice to his person because he experienced
increased anxiety and depression during his pretrial incarceration. While we do not doubt that
defendant may well have experienced anxiety and depression from his incarceration throughout
the proceedings, that “alone cannot establish a speedy-trial violation.” Smith, 351 Mich App at
15. And although defendant attempts to argue that he suffered prejudice to his defense by asserting
that he could not obtain video footage that was recorded on the date of the incident by the
surveillance cameras inside the home, he offers nothing to indicate that the video footage would
have been helpful to his defense, nor does he explain how its absence at trial was due to the delay.
By his own admissions at pretrial motion hearings, any alleged video footage from inside the home
was within his control since the date of the incident, as he had purchased and installed the
surveillance system and had access to the mobile application that stored any recorded footage.
Furthermore, the record reflects that the prosecution was unaware of any potential video footage
from inside the home until defendant first mentioned it in his motion to dismiss. The prosecution
then promptly obtained a search warrant to obtain that footage from the surveillance company, but
there ultimately was no video footage to obtain because the surveillance system had either been
turned off or disabled at the time of the incident. On this record, we cannot conclude that defendant
has shown he suffered any prejudice to his defense, let alone prejudice sufficient to entitle him to
relief. See People v Chism, 390 Mich 104, 115; 211 NW2d 193 (1973) (“[O]n the matter of
prejudice to [the] defendant because of the length of time before his trial, the most important thing
is that there is no evidence that a fair trial was jeopardized by delay[.]”).
defendant has not identified, and we have not found, grounds for relief on that basis alone in this
case. See Burkett, 337 Mich App at 639 n 4.

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Accordingly, under our review of the Barker factors, we agree with the trial court that
defendant’s claim of a speedy-trial violation fails. See Williams, 475 Mich at 262.
IX. SENTENCING
Finally, in his Standard 4 brief, defendant argues for the first time on appeal that he is
entitled to resentencing because the trial court erroneously assessed 15 points for offense variable
(OV) 8, MCL 777.38 (victim asportation or captivity). According to defendant, the trial court
must assess zero points for OV 8 if the sentencing offense is kidnapping, and unlawful
imprisonment is a form of kidnapping. But this Court squarely addressed—and rejected—this
exact argument in People v Kosik, 303 Mich App 146, 157-159; 851 NW2d 906 (2013). Kosik is
a precedentially binding case, and defendant does not identify, nor do we see, any reason why it
would not control our disposition here. See MCR 7.215(C)(2) and (J)(1). Accordingly, we
conclude that the trial court’s assessment of 15 points for OV 8 was not in error.
Affirmed.
/s/ Daniel S. Korobkin
/s/ Michael J. Riordan
/s/ Philip P. Mariani

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