Background
Monae Sharae Foster appealed as of right from jury convictions on two counts of assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84, and two counts of felony-firearm, MCL 750.227b(1). The trial court sentenced her to 3 to 10 years’ imprisonment on one AWIGBH conviction, 23 months to 10 years on the other, and two years on each felony-firearm conviction. The unpublished per curiam decision arose from Wayne Circuit Court case No. 21-004082-01-FC.
The charges stemmed from an early-morning fight at a Detroit gas station on November 14, 2020. According to the prosecution’s evidence, Foster and Marquise Barner argued with Shannon Harden, Barner threw a drink and tried to hit her, and Foster attacked Harden after Harden struck Barner. Rayshannon Woods intervened, and Foster threatened to “pistol whip” her before swinging a handgun at Woods’s head; Woods moved, and the gun struck her shoulder. Foster later shot Harden once in the stomach. Officers recovered a handgun from Foster’s home, and a firearms examiner determined that a cartridge case recovered at the gas station had been fired from that gun.
The jury acquitted Foster of assault with intent to murder and its attendant felony-firearm charge but convicted her of both AWIGBH counts and two felony-firearm counts. The trial court had directed a verdict on the carrying-with-unlawful-intent charge and its associated felony-firearm count. On appeal, Foster challenged only the sufficiency of the evidence supporting the convictions involving Woods, the denial of her request to recall Woods as a defense witness, and trial counsel’s effectiveness.
The Court’s Holding
The Court of Appeals affirmed. Reviewing sufficiency de novo and viewing the evidence in the light most favorable to the prosecution, the panel held that the jury could infer an intent to cause serious injury of an aggravated nature from Foster’s threat and her swing of a handgun at Woods’s head. Actual injury is not an element of AWIGBH, and missing Woods’s head did not negate Foster’s intent when she swung. Because Foster’s felony-firearm argument depended entirely on her AWIGBH argument, and the testimony established that she possessed a handgun during the confrontation, the associated felony-firearm conviction also was supported by sufficient evidence.
The court separately addressed the preserved evidentiary ruling and the unpreserved constitutional claim concerning Woods’s recall. It found no abuse of discretion in excluding cumulative testimony about whether Woods had received a preliminary-examination subpoena, a collateral matter on which she had already been examined. Foster conceded on appeal that no subpoena was issued. The constitutional claim failed at the first step of plain-error review because the routine exclusion of cumulative testimony was neither arbitrary nor disproportionate and did not infringe a weighty interest of the accused. The court additionally concluded that Foster could not show outcome-determinative error under either standard, given the existing impeachment and corroborating testimony and surveillance footage.
Foster’s ineffective-assistance claims were unpreserved because she sought neither a new trial or Ginther hearing below nor a remand, so the court reviewed for errors apparent on the record. It rejected the bindover claim for lack of prejudice without deciding whether the limited preliminary-examination testimony established probable cause or counsel performed deficiently. A successful challenge would not have barred reprosecution, and a fair conviction on sufficient trial evidence foreclosed relief based on the earlier probable-cause showing. The court also found no ineffective assistance concerning Juror One: the record did not show actual bias or overcome the presumption that counsel’s decision to retain her was strategic. A separate argument that the trial court had an independent duty to excuse the juror was treated as abandoned because it was omitted from the statement of questions presented.
Key Takeaways
- A handgun swung at a victim’s head, accompanied by a threat, can support an inference of intent to do great bodily harm even when the blow misses its target and causes no treated injury.
- The court applied abuse-of-discretion review to the preserved evidentiary ruling and plain-error review to the unpreserved constitutional claim.
- The ineffective-assistance claims failed on prejudice and strategy grounds; the court did not decide whether the preliminary examination established probable cause.
Why It Matters
The decision illustrates how Michigan appellate courts separate preserved evidentiary challenges from unpreserved constitutional claims and how those standards can independently defeat relief. It also underscores that a defendant claiming ineffective assistance for failure to challenge a bindover or remove a juror must establish prejudice, not merely identify a different tactical choice counsel could have made.
The juror ruling was tied to this record: Juror One expressed uncertainty, denied other disqualifying beliefs, disclosed a concealed pistol license, and was not shown to be actually biased. The opinion does not establish a universal rule that uncertainty during voir dire can never demonstrate bias or require further inquiry.