PEOPLE OF MI V JERMAINE MELTON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 7, 2004
Plaintiff-Appellee,
v
No. 247535
Wayne Circuit Court
LC No. 02-05487-01
JERMAINE MELTON,
Defendant-Appellant.
Before: Schuette, P.J., and Bandstra and Meter, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial convictions of second-degree murder, MCL
750.317, and possession of a firearm during the commission of a felony, MCL 750.227b.
Defendant was sentenced to 17 to 25 years in prison for the second-degree murder conviction, to
run consecutive to two years in prison for the felony-firearm conviction. We affirm.
Defendant first argues that the evidence at trial was insufficient to support his conviction
for second-degree murder. We disagree. “This Court reviews a challenge to the sufficiency of
the evidence at a bench trial by viewing the evidence presented in the light most favorable to the
prosecution to determine whether a rational trier of fact could find that the essential elements of
the crime were proven beyond a reasonable doubt.” People v Kemp, 202 Mich App 318, 322;
508 NW2d 184 (1993). The trial court “must find the facts specially, state separately its
conclusions of law, and direct entry of the appropriate judgment.” MCR 6.403. “Factual
findings are sufficient as long as it appears that the trial court was aware of the issues and
correctly applied the law.” Kemp, supra at 322.
The elements of second-degree murder are: (1) a death, (2) caused by an act of the
defendant, (3) absent circumstances of justification, excuse, or mitigation, (4) done with malice.
People v Bailey, 451 Mich 657, 669; 549 NW2d 325, amended on denial of rehearing 453 Mich
1204; 551 NW2d 163 (1996). “Malice is the intent to kill, the intent to do great bodily harm, or
the intent to create a high risk of death or great bodily harm with knowledge that death or great
bodily harm will be the probable result.” Kemp, supra at 322. “Malice may be inferred from the
facts and circumstances of the killing.” Id.
Defendant argues that insufficient evidence existed to convict him of second-degree
murder because the prosecution failed to prove defendant bore any malice toward the victim.
We disagree and find that the prosecution presented sufficient evidence from which the trial
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court could infer the element of malice. Defendant’s brother called defendant and asked
defendant to come over to his apartment following an incident with the victim, who was upset
because defendant’s brother would not allow the victim to use his phone. Defendant testified
that he brought a handgun along because he did not think the area where his brother lived was
safe. As defendant and his brother encountered the victim in the hallway of the apartment
complex, the victim yelled obscenities at defendant and defendant’s brother, and defendant
confronted the victim. Defendant maintains that the victim then brandished a knife and lunged at
him, and that he shot the victim in self-defense. The victim died as the result of five gunshot
wounds: one to the abdomen; one to the front left shoulder; one to the front right shoulder; one to
the back right shoulder; and one to the back right arm. Based on the evidence adduced at trial,
sufficient evidence existed from which the trial court could infer the element of malice as
defined by case law.
Defendant next argues that the trial court clearly erred in finding that he did not act in
self-defense. We disagree. A trial court’s finding of fact is clearly erroneous only if the
reviewing court is left with a definite and firm conviction that a mistake has been made. People
v Lombardo, 216 Mich App 500, 504; 549 NW2d 596 (1996). “[T]he killing of another person
in self-defense is justifiable homicide only 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 Riddle, 467 Mich 116, 127;
649 NW2d 30 (2002). However, “Michigan law imposes an affirmative obligation to retreat
upon a nonaggressor . . . in one narrow set of circumstances: A participant in voluntary mutual
combat will not be justified in taking the life of another until he is deemed to have retreated as
far as safely possible.” Id. at 120. (Emphasis deleted.) That is to say, “[o]ne who is involved in
a physical altercation in which he is a willing participant . . . is required to take advantage of any
reasonable and safe avenue of retreat before using deadly force against his adversary, should the
altercation escalate into a deadly encounter.” Id. (Emphasis deleted.)
Here, defendant testified that after the victim lunged at him with a knife, he backed seven
feet away from the victim and was one foot from the door of his brother’s apartment. Defendant
testified that nothing prevented him from going into his brother’s apartment when confronted by
the victim. Defendant had sufficient distance to safely retreat through the door directly behind
him. Accordingly, the trial court’s finding that defendant did not act in reasonable self-defense
because he failed to pursue an available, safe avenue of escape, was not clearly erroneous.
Defendant next argues that the trial court clearly erred by discrediting the testimony
given by himself and his brother, and instead concluding that a prosecution witness’ version of
events was reliable. But “[i]n a bench trial, it is the role of the trial judge sitting as the trier of
fact to observe the witnesses and decide the weight and credibility to be given to their
testimony,” and we will not disturb that decision on appeal. People v Garcia, 398 Mich 250,
262-263; 247 NW2d 547 (1976), overruled in part on other grounds, People v D’Alessandro, 165
Mich App 569; 419 NW2d 609 (1988).
In sum, viewing the evidence in a light most favorable to the prosecution, a rational trier
of fact could conclude that defendant caused the victim’s death, without justification, excuse, or
mitigation, and that he had the intent to kill, the intent to do great bodily harm, or the intent to
create a high risk of death or great bodily harm with knowledge that death or great bodily harm
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would be the probable result. There was sufficient evidence to sustain defendant’s conviction for
second-degree murder, and defendant is not entitled to relief on this basis.
Defendant next argues that his sentence for the second-degree murder conviction was
disproportionate. We disagree. If the minimum sentence imposed is within the appropriate
guidelines sentence range, this Court must affirm the sentence unless the trial court erred in
scoring the sentencing guidelines or relied on inaccurate information in determining the
defendant’s sentence. MCL 769.34(10); People v Babcock, 469 Mich 247, 261; 666 NW2d 231
(2003).
Defendant’s guidelines sentencing range was 144 to 240 months, or 12 to 20 years.
Defendant was sentenced to 17 to 25 years in prison. The seventeen-year minimum falls within
the guidelines range. Therefore, we must affirm defendant’s sentence because he raises no
challenge to the trial court’s guideline scoring and points to no inaccuracies in the information
relied on in imposing sentence. MCL 769.34(10).
We affirm.
/s/ Bill Schuette
/s/ Richard A. Bandstra
/s/ Patrick M. Meter
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