PEOPLE OF MI V KEVIN D WEATHERSPOON
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 9, 2001
Plaintiff-Appellee,
V
No. 225190
Oakland Circuit Court
LC No. 99-165163-FC
KEVIN D. WEATHERSPOON,
Defendant-Appellant.
Before: Doctoroff, P.J., and Wilder and Schmucker*, JJ.
PER CURIAM.
Defendant appeals as of right his jury convictions of assault with intent to do great bodily
harm less than murder, MCL 750.84, and possession of a firearm during the commission of a
felony, MCL 750.227b. The trial court sentenced defendant to imprisonment for fifty-seven
months’ to ten years’ for assault with intent to do great bodily harm and two years’ for felonyfirearm. We affirm. This appeal is being decided without oral argument pursuant to MCR
7.214(E).
Defendant is the former boyfriend of Tashyla Jamison, with whom he lived before their
break-up about a month before this incident. Jamison and Christinian Hughes were at Jamison’s
house in the bedroom. They heard a tapping sound, and Jamison got up to investigate. She did
not hear anyone at the door. However, she saw the back window being opened and then saw
defendant in the window. Defendant asked her who was in the house, and Jamison told him it
was a female.
Defendant’s arm came through the window, and Jamison saw that he had a gun. At trial,
Jamison testified that she grabbed defendant’s wrist and they struggled. During the struggle, the
gun discharged. The bullet struck Hughes in her chest. Hughes said, “Don’t shoot again, I’m a
girl.” Defendant then said to Jamison, “Look what you made me do,” and he ran away.
Jamison admitted that in her statements to police she mentioned nothing about struggling
with defendant. She testified that a few weeks after the shooting, she contacted the police to tell
them that she wanted to change her statement. The police invited her to come to the station and
change her statement, but she never followed through.
* Circuit judge, sitting on the Court of Appeals by assignment.
-1-
Hughes testified that she heard a tapping sound and Jamison got up to investigate.
Hughes saw a person coming through the window, but because of the lighting she could only
generally describe the man.
Hughes heard Jamison talking to the man (defendant), but she could not hear what they
were saying. She saw defendant’s head come through the window and then saw his hands. He
was holding a gun. He had his arms up, and Jamison had her hands on his arms, with one hand
on defendant’s right wrist. Defendant, holding the gun in his right hand, then brought the gun
down and shot Hughes. According to Hughes, based on their positions, defendant had to let his
arm down, aim and shoot her. She saw no struggling.
Defendant argues that his trial counsel was ineffective for failing to request an instruction
on the defense of accident as a defense to a specific intent crime. We disagree.
To preserve a claim of ineffective assistance of counsel, a defendant must move in the
trial court for a new trial or an evidentiary hearing pursuant to People v Ginther, 390 Mich 436,
443; 212 NW2d 922 (1973). People v Sabin (On Second Remand), 242 Mich App 656, 658; 620
NW2d 19 (2000). Because defendant failed to make such a motion, the issue is waived unless
the record supports defendant’s claim. Id. at 658-659.
To establish that his counsel was ineffective, a defendant must first demonstrate, through
the record, that his counsel’s performance was deficient by showing that counsel made errors so
serious that he was not functioning as the counsel to which the defendant is constitutionally
guaranteed. People v Hoag, 460 Mich 1, 5; 594 NW2d 57 (1999), citing Strickland v
Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Next, the defendant must
establish that counsel’s deficient performance prejudiced the defense by showing that the errors
were so serious that they deprived the defendant of a fair trial whose result is reliable. Id. That
is, defendant must demonstrate that there is a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different. People v Toma, 462 Mich 281,
302-303; 613 NW2d 694 (2000). Defendant also must overcome the strong presumption that his
trial counsel’s actions constituted sound trial strategy under the circumstances. Id. at 302.
The trial court instructed the jury, at defense counsel’s request, on the offense of careless,
reckless or negligent discharge of a firearm. MCL 752.861. This instruction applies where the
defendant, “because of carelessness, recklessness or negligence, but not wilfully or wantonly,
shall cause or allow any firearm under his immediate control, to be discharged so as to kill or
injure another person . . . .” MCL 752.861. Having been given this instruction, the jury could
have convicted defendant of the lesser offense if it found that defendant did not have the specific
intent to do great bodily harm and the shooting was accidental. The jury rejected this option, and
clearly found that defendant had the required specific intent. In light of the fact that the jury was
instructed on an offense that does not require specific intent, he cannot demonstrate that trial
counsel was constitutionally deficient or that, but for counsel’s failure to request the instruction
on accident, the outcome of the trial would have been different. He has therefore failed to
establish ineffective assistance of counsel.
Defendant also argues that the prosecution presented insufficient evidence to support his
conviction of assault with intent to do great bodily harm less than murder. We disagree.
-2-
To determine whether the prosecution presented sufficient evidence of guilt to sustain a
conviction, this Court must consider the evidence in a light most favorable to the prosecution and
determine whether a rational trier of fact could have concluded that all the elements of the
offense were proven beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 513-514; 489
NW2d 748 (1992). Assault with intent to do great bodily harm less than murder requires proof
of “(1) an assault, i.e., ‘an attempt or offer with force and violence to do corporal hurt to another’
coupled with (2) a specific intent to do great bodily harm less than murder.” People v Bailey,
451 Mich 657, 668-669; 549 NW2d 325 (1996).
Hughes testified that defendant moved his arm to aim the gun in her direction and then
fired it. She saw no sign of a struggle between defendant and Jamison. The jury could have
found from this evidence that defendant deliberately aimed and fired the gun at Hughes.
Viewing the evidence in a light most favorable to the prosecution, the evidence presented is
sufficient to find defendant guilty beyond a reasonable doubt of assault with intent to do great
bodily harm less than murder.
Affirmed.
/s/ Martin M. Doctoroff
/s/ Kurtis T. Wilder
/s/ Chad C. Schmucker
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
