STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    January 10, 2017
               Plaintiff-Appellee,

v                                                                   No. 329996
                                                                    Washtenaw Circuit Court
VINCENT EDWARD DUNLAP,                                              LC No. 13-001157-FH

               Defendant-Appellant.


Before: WILDER, P.J., and BORRELLO and GLEICHER, JJ.

PER CURIAM.

        A jury convicted defendant, Vincent Edward Dunlap, of two counts of delivering less
than 50 grams of heroin, MCL 333.7401(2)(a)(iv), following two controlled buys with an
undercover officer. Defendant claimed mistaken identity and named his brother, Virgil Dunlap,
as the actual perpetrator. On appeal, defendant challenges trial counsel’s failure to adequately
investigate his mistaken identity defense and to present Virgil as a witness. He also contests the
sufficiency of the evidence to establish his identity. We affirm.

                                       I. BACKGROUND

        On two separate occasions in 2013, Ypsilanti Police Sergeant Zachary Allen purchased
heroin from an individual nicknamed “Vito.” Sergeant Allen paid $50 and $60 for the drugs,
which were provided in small amounts folded inside lottery tickets. After the first transaction, a
surveillance team followed the seller back to an apartment.

        The day after the second transaction, Sergeant Allen led a team to execute a search
warrant at the apartment. Inside, the officers found Virgil Dunlap in the living room and Virgil’s
brother, defendant Vincent Edward Dunlap, in a bedroom. Sergeant Allen recognized defendant
as the man who sold him the heroin. Defendant provided his identification to the officers,
establishing that he was Vincent Edward Dunlap. Police officers waited six weeks to arrest
defendant, pending laboratory testing of the alleged heroin. In the meantime, Sergeant Allen
authored a report outlining his investigation. In the report, Allen identified the heroin seller as
“Virgil Edward Dunlap.” The prosecutor’s office caught the discrepancy. Allen then prepared a
supplemental report identifying defendant by name as the seller. At trial, Allen acknowledged
the misnomer in his first report, but emphatically identified defendant as the individual from
whom he purchased heroin.


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                                  II. ASSISTANCE OF COUNSEL

        Defendant contends that trial counsel was ineffective because he failed to interview
Virgil and present him as a witness at trial, despite defendant’s request that he do so. Defendant
asserted in an affidavit that he told his attorney “that if his brother was called to testify at his trial
he would have testified that he was the person known as ‘Vito’ and that he did the drug sales.”

        A claim of ineffective assistance of counsel is a mixed question of fact and constitutional
law and we generally review the trial court’s findings of fact for clear error and questions of
constitutional law de novo. People v Trakhtenberg, 493 Mich. 38, 47; 826 NW2d 136 (2012).
However, because this Court denied defendant’s motion to remand for a Ginther1 hearing, our
review is limited to mistakes apparent on the record. See People v Payne, 285 Mich. App. 181,
188; 774 NW2d 714 (2009).

        To merit relief due to ineffective assistance of counsel, a defendant must prove: (1) that
the attorney made an error, and (2) that the error was prejudicial to defendant. Strickland v
Washington, 466 U.S. 668, 687; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984); People v Pickens, 446
Mich. 298, 311, 314; 521 NW2d 797 (1994). Specifically, the defendant must demonstrate that
counsel’s performance fell below an objective standard of reasonableness. People v Russell, 297
Mich. App. 707, 715-716; 825 NW2d 623 (2012). Then, defendant must demonstrate that, but for
counsel’s deficient performance, a different result would have been reasonably probable. Id.

        Here, even if we assume that counsel’s performance was deficient, defendant has not
overcome his burden of establishing prejudice. Defendant swore in an affidavit that Virgil
would have taken the fall for him on the stand. However, defendant never presented an affidavit
from Virgil describing what testimony Virgil would have actually provided. Defendant’s
speculation that his brother would have selflessly inculpated himself is insufficient to establish
entitlement to a new trial.

                              III. SUFFICIENCY OF THE EVIDENCE

        Defendant further contends that the prosecution presented insufficient identification
evidence to support his convictions. We review challenges to the sufficiency of the evidence de
novo, viewing the evidence “in the light most favorable to the prosecution” to determine whether
a rational trier of fact “could have found that the essential elements of the crime were proven
beyond a reasonable doubt.” People v Odom, 276 Mich. App. 407, 418; 740 NW2d 557 (2007).
“Conflicts in the evidence must be resolved in favor of the prosecution,” and “[c]ircumstantial
evidence and reasonable inferences arising therefrom may constitute proof of the elements of the
crime.” People v Bennett, 290 Mich. App. 465, 472; 802 NW2d 627 (2010).

       Identity is an element of every criminal offense. People v Yost, 278 Mich. App. 341, 356;
749 NW2d 753 (2008). “[P]ositive identification by witnesses may be sufficient to support a
conviction. . . .” People v Davis, 241 Mich. App. 697, 700; 617 NW2d 381 (2000). The


1
    People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).


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credibility of that identification testimony “is a question for the trier of fact that we do not
resolve anew.” Id.

        Sergeant Allen testified that he met defendant on two separate occasions to buy heroin.
During both transactions, Allen was in close proximity to the seller. Knowing his identification
of the seller would be a crucial piece of evidence, Allen purposefully examined the seller’s face
to memorize his appearance. When Allen entered the apartment to execute the search warrant,
he was positive defendant was the individual who sold him heroin, not Virgil. Sergeant Allen
asserted that he became confused when drafting his report because of the alliteration of names in
this case—Vito, Virgil, and Vincent. Accordingly, he accidentally combined the name “Virgil”
with defendant’s middle name “Edward” in the report. Sergeant Allen rectified this error
because he was confident defendant, Vincent Edward Dunlap, was the person who sold him
heroin. The jury accepted this evidence and we may not interfere with that credibility judgment.

       We affirm.



                                                           /s/ Kurtis T. Wilder
                                                           /s/ Stephen L. Borrello
                                                           /s/ Elizabeth L. Gleicher




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