People of Michigan v. Brian Richard Fortner ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 13, 2021
Plaintiff-Appellee,
v No. 350381
Alpena Circuit Court
BRIAN RICHARD FORTNER, LC No. 19-008819-FH
Defendant-Appellant.
Before: SAWYER, P.J., and STEPHENS and RICK, JJ.
PER CURIAM.
Defendant appeals as of right his conviction of assault with a dangerous weapon (felonious
assault), MCL 750.82, following a jury trial. The trial court sentenced defendant to 10 months’
imprisonment. We affirm.
I. BACKGROUND
This case arises out of defendant assaulting Paul and Tina Greenway (collectively, the
victims) from his apartment window with his shotgun. Paul testified that he and his wife lived in
a house next to defendant, who rented an apartment on the second floor. Sometime before the
assault, defendant had shown Paul his shotgun, which had a flashlight attached.
On the night of the assault, the victims were in their yard, after the sun had set. They heard
a big booming firework noise similar to other fireworks that were shot off earlier in the day. After
that noise, Paul heard someone say, “[S]hoot that again and I’m gonna kill both of you” and “I’m
gonna kill both of you fucking, motherfuckers,” and he saw a light was shining on Tina’s head.
The light shining on Tina’s head was coming from defendant’s upstairs window. Tina identified
defendant as the person yelling because she recognized defendant’s voice. Paul did not see a gun,
but he recognized the light being shined on Tina’s head as being identical with the kind of light
that would shine from the flashlight that was attached to defendant’s shotgun. Similarly, Tina did
not see defendant pointing a gun at her and Paul, but she thought that it was a gun because
defendant yelled that he was going to shoot both of them. Paul responded by saying that he did
not own a gun and then told Tina to duck because he thought that defendant was going to shoot
them. Tina called 911 and then she and Paul ran into the house.
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Police arrived and spoke with defendant. Defendant said that he heard a noise that he
believed was a gunshot fired toward his apartment. Defendant told the police officers that he
grabbed his shotgun that had a flashlight attached, loaded it, and pointed it out of his apartment
window at the victims. A jury ultimately found defendant guilty, and this appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
Defendant first argues that his conviction of felonious assault should be overturned because
there was insufficient evidence presented for a jury to find that he used a dangerous weapon and
the prosecutor presented insufficient evidence to rebut his claim of self-defense.
A. STANDARD OF REVIEW
“Challenges to the sufficiency of the evidence are reviewed de novo.” People v Wang, 505
Mich 239, 251; 952 NW2d 334 (2020). “When reviewing a defendant’s challenge to the
sufficiency of the evidence, we review the evidence in a light most favorable to the prosecutor to
determine whether any trier of fact could find the essential elements of the crime were proven
beyond a reasonable doubt.” People v Williams, 294 Mich App 461, 471; 811 NW2d 88 (2011)
(cleaned up). The standard of review is deferential, and this Court “is required to draw all
reasonable inferences and make credibility choices in support of the jury verdict.” People v
Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). “A prosecutor need not present direct evidence
of a defendant’s guilt.” Williams, 294 Mich App at 471. “Circumstantial evidence may sustain
criminal convictions, but the circumstantial proof must facilitate reasonable inferences of
causation, not mere speculation.” Wang, 505 Mich at 251 (cleaned up).
B. ANALYSIS
1. FELONIOUS ASSAULT
MCL 750.82(1) states that “a person who assaults another person with a gun, revolver,
pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon without intending to
commit murder or to inflict great bodily harm less than murder is guilty of a felony . . . .” The
elements of felonious assault are: “(1) an assault, (2) with a dangerous weapon, and (3) with the
intent to injure or place the victim in reasonable apprehension of an immediate battery.” People v
Bosca, 310 Mich App 1, 20; 871 NW2d 307 (2015) (cleaned up). It is undisputed that a shotgun
is a dangerous weapon as defined by MCL 750.82. “Felonious assault is defined as a simple
assault aggravated by the use of a weapon.” People v Jones, 443 Mich 88, 100; 504 NW2d 158
(1993). “An assault is made out from either an attempt to commit a battery or an unlawful act
which places another in reasonable apprehension of receiving an immediate battery.” People v
Nickens, 470 Mich 622, 628; 685 NW2d 657 (2004) (cleaned up). “Intent may be inferred from a
defendant’s words, acts, means, or the manner used to commit the offense.” Bosca, 310 Mich App
at 21 (cleaned up).
Defendant argues that there was insufficient evidence to prove that he used a dangerous
weapon because the victims did not see a gun. We disagree.
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Although the victims testified that they did not actually see defendant with a gun, they both
believed that defendant pointed a gun at them. They knew that defendant owned a gun. Defendant
had shown Paul the gun with the flashlight attachment prior to the assault. Furthermore, both
victims heard defendant say that he was going to shoot them. Additionally, Paul testified that he
saw a light shining on Tina’s head and both victims testified that they thought defendant was going
to shoot them. Further, multiple police officers testified that defendant told them that he loaded
his shotgun with the attached flashlight and aimed it at the victims out of his window. One of the
police officers also testified that he saw the shotgun that defendant used inside defendant’s home
on the night of the incident and that it was loaded. Neither MCL 750.82 nor Michigan caselaw
regarding felonious assault require that the victims see the dangerous weapon that defendant used.
Therefore, viewing this evidence in the light most favorable to the prosecution, any trier of fact
could find that defendant used a dangerous weapon when he assaulted the victims. See Williams,
294 Mich App at 471.
2. SELF DEFENSE
Defendant also argues that the prosecution failed to present sufficient evidence to disprove
his claims of statutory self-defense under the Self-Defense Act (SDA), MCL 780.971 et seq., and
common-law self-defense.
“As a general matter, a defendant who asserts the affirmative defense of self-defense
admits the crime but seeks to excuse or justify its commission.” People v Triplett, 499 Mich 52,
57; 878 NW2d 811 (2016) (cleaned up).
At common law, the affirmative defense of self-defense justifies otherwise
punishable criminal conduct . . . if the defendant honestly and reasonably believes
his life is in imminent danger or that there is a threat of serious bodily harm and
that it is necessary to exercise deadly force to prevent such harm to himself. [People
v Dupree, 486 Mich 693, 707; 788 NW2d 399 (2010) (cleaned up).]
This includes the exercise of nondeadly force. See People v Riddle, 467 Mich 116, 119; 649 NW2d
30 (2002). Under common-law self-defense, “unless attacked inside one’s own home, or subjected
to a sudden, fierce, and violent attack, a person has a common-law duty to retreat, if possible, as
far as safely possible.” People v Conyer, 281 Mich App 526, 530 n 2; 762 NW2d 198 (2008).
“With the enactment of the [SDA], the Legislature codified the circumstances in which a
person may use deadly force in self-defense or in defense of another person without having the
duty to retreat.” Dupree, 486 Mich at 708. The SDA also governs self-defense with nondeadly
force. Specifically, MCL 780.972(2) states:
An individual who has not or is not engaged in the commission of a crime
at the time he or she uses force other than deadly force may use force other than
deadly force against another individual anywhere he or she has the legal right to be
with no duty to retreat if he or she honestly and reasonably believes that the use of
that force is necessary to defend himself or herself or another individual from the
imminent unlawful use of force by another individual.
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“[O]nce a defendant satisfies the initial burden of producing some evidence from which a jury
could conclude that the elements necessary to establish a prima facie defense of self-defense exist,
the prosecution bears the burden of disproving the affirmative defense of self-defense beyond a
reasonable doubt.” People v Rajput, 505 Mich 7, 11; 949 NW2d 32 (2020) (cleaned up). “In
general, a defendant does not act in justifiable self-defense when he or she uses excessive force or
when the defendant is the initial aggressor.” People v Guajardo, 300 Mich App 26, 35; 832 NW2d
409 (2013).
In this case, the prosecution presented sufficient evidence to rebut defendant’s claim of
self-defense. Both common-law self-defense and the SDA require that defendant establish that he
had an honest and reasonable belief that the force he used was necessary to defend himself.
Although there was evidence presented that defendant may have had a belief that his force was
necessary, the prosecution presented evidence that defendant’s use of force was not reasonable.
Namely, the victims testified that fireworks had been going off that night and that they believed
the noise that they heard was a firework from a house behind defendant’s apartment complex.
Additionally, there was sufficient evidence presented for a trier of fact to conclude that defendant’s
assumption was unreasonable because Paul told defendant that he did not own a gun and also told
defendant that the noise was just a firework. The jury was entitled to find the victims more credible
than the other witnesses. See People v Eisen, 296 Mich App 326, 331; 820 NW2d 229 (2012).
The prosecutor presented sufficient evidence for a rational trier of fact to find beyond a
reasonable doubt that defendant was the initial aggressor or that the amount of force that defendant
used was excessive and unnecessary. Therefore, when viewing the evidence in the light most
favorable to the prosecutor, a rational trier of fact could have found that the prosecutor proved
beyond a reasonable doubt that defendant did not act in self-defense.
III. PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE OF COUNSEL
Next, defendant argues that his conviction should be overturned because of prosecutorial
misconduct or, in the alternative, remanded for a Ginther1 hearing for ineffective assistance of
counsel. We disagree.
A. STANDARD OF REVIEW
Generally, preserved “[i]ssues of prosecutorial misconduct are reviewed de novo to
determine whether the defendant was denied a fair and impartial trial.” People v Bennett, 290
Mich App 465, 475; 802 NW2d 627 (2010). “In order to preserve a claim of prosecutorial
misconduct for appellate review, a defendant must have timely and specifically objected below,
unless objection could not have cured the error.” People v Brown, 294 Mich App 377, 382; 811
NW2d 531 (2011). Defendant did not object to the alleged prosecutorial misconduct below.
Therefore, this issue is unpreserved.
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People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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Unpreserved issues are reviewed for plain error. People v Cain, 498 Mich 108, 116; 869
NW2d 829 (2015). Requirements for reversal under the plain-error rule are “1) error must have
occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial
rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). An error affects substantial
rights when “the error affected the outcome of the lower court proceedings.” Id. The defendant
bears the burden to demonstrate that an error occurred, that the error was clear or obvious, and that
the error affected his or her substantial rights. Id. “Reversal 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.” People v Callon, 256 Mich App 312, 329;
662 NW2d 501 (2003). “Further, [this Court] cannot find error requiring reversal where a curative
instruction could have alleviated any prejudicial effect.” Id. at 329-330.
Whether a defendant has been deprived of effective assistance of counsel is “a mixed
question of law and fact[.]” People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). “A
judge first must find the facts, and then must decide whether those facts constitute a violation of
the defendant’s constitutional right to effective assistance of counsel.” People v LeBlanc, 465
Mich 575, 579; 640 NW2d 246 (2002). Appellate courts review the trial court’s factual findings
for clear error, while questions of constitutional law are reviewed de novo. Id. A factual finding
is clearly erroneous if this Court is “left with a definite and firm conviction that the trial court made
a mistake.” People v Franklin, 500 Mich 92, 100; 894 NW2d 561 (2017) (cleaned up). Defendant
did not move for a new trial or evidentiary hearing. Therefore, our review “is limited to mistakes
apparent from the record.” People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012).
B. ANALYSIS
In general, prosecutors are given great latitude regarding their conduct and arguments
during trial. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). Prosecutors are “free
to argue the evidence and all reasonable inferences from the evidence as it relates to their theory
of the case.” Id. (cleaned up). When reviewing closing arguments for prosecutorial error, this
Court must examine the prosecutor’s remarks as a whole and in context to determine if the
defendant received a fair trial. Id. at 267.
Prosecutors may argue that a defendant’s theory of the case should not be believed as long
as such argument is based on the evidence. People v Meissner, 294 Mich App 438, 457-458; 812
NW2d 37 (2011). “A prosecutor may not make a factual statement to the jury that is not supported
by the evidence, but he or she is free to argue the evidence and all reasonable inferences arising
from it as they relate to his or her theory of the case.” People v Dobek, 274 Mich App 58, 66; 732
NW2d 546 (2007) (cleaned up). Additionally, an improper comment by the prosecutor may not
rise to the level of an error requiring reversal if the prosecutor is responding to arguments made
by defense counsel. People v Watson, 245 Mich App 573, 593; 629 NW2d 411 (2001).
Defendant argues that the prosecutor committed misconduct during his rebuttal closing
argument. During closing arguments, defense counsel argued the following:
But [defendant] believed, he honestly believed he was being attacked and that he
was shot at. His actions were in self-defense. It’s clear.
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Judge Mack and, and the prosecutor (inaudible) he’ll, he’ll instruct you on
self-defense instruction. What the law is. And specifically it states remember to
judge the defendant’s conduct according to how the circumstances appeared to him
at the time he acted. I think it’s clear from the evidence how, how it appeared to
him from the time he reacted.
In a rebuttal closing argument, the prosecution responded with the following:
Just briefly. Counsel doesn’t want you to remember honestly and
reasonably. Just, he just wants you to think what’s in the defendant’s own mind.
Well just because the defendant’s a little bit nutty doesn’t mean that you have to go
along with what he believes. It’s what reasonably and honestly he believed.
Reasonably means reason and common sense what you would believe.
Defendant argues that the prosecution committed prosecutorial misconduct with two separate
statements. First, defendant argues that the prosecution denigrated defense counsel by suggesting
to the jury that defense counsel was being deceitful in its recitation of the elements for self-defense.
Second, defendant argues that the prosecution denigrated defendant by suggesting that his belief
was “nutty.”
The prosecution was permitted to respond to defense counsel’s theory of the case and argue
all reasonable inferences arising from the evidence. Meissner, 294 Mich App at 456. The
prosecutor’s comments, when viewed in context, responded to defense counsel’s argument.
Although the prosecution’s comments regarding defense counsel’s reference to the elements of
self-defense suggested that defense counsel was trying to distract the jury from the significant
elements of self-defense, the prosecution recited the accurate elements of that defense—that
defendant’s belief needed to be “honest” and “reasonable.” The prosecutor did not commit
misconduct by reiterating the accurate elements of an affirmative defense. While the prosecution
could have been more tactful, it was also permitted to argue from the facts that defendant or
defendant’s arguments were unworthy of belief. See id. at 457-458. Therefore, we reject
defendant’s claim of prosecutorial misconduct. Moreover, if this Court were to find that the
prosecutor’s statements exceeded the permissible bounds, defendant has not established that he
was prejudiced. The trial court instructed the jury that the attorneys’ closing arguments were not
evidence. See Callon, 256 Mich App at 329-330; People v Abraham, 256 Mich App 265, 279;
662 NW2d 836 (2003) (“Jurors are presumed to follow their instructions, and instructions are
presumed to cure most errors.”).
Defendant also argues, in the alternative, that he was denied the effective assistance of
counsel because defense counsel failed to object to the alleged prosecutorial misconduct. Because
we conclude that there was no prosecutorial misconduct, defendant’s claim of ineffective
assistance of counsel must fail. “[C]ounsel does not render ineffective assistance by failing to
raise futile objections.” People v Ackerman, 257 Mich App 434, 455; 669 NW2d 818 (2003).
Further, defendant has not established that, but for counsel’s alleged error, “a different result would
have been reasonably probable.” Trakhtenberg, 493 Mich at 55-56 (cleaned up). There was
substantial evidence against defendant given the testimonies of the police officers and victims.
Therefore, defendant’s claim of ineffective assistance of counsel fails.
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Affirmed.
/s/ David H. Sawyer
/s/ Cynthia Diane Stephens
/s/ /Michelle M. Rick
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