PEOPLE OF MI V MARQUEL ANTHONY REED (Per Curiam Opinion)

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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 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED November 24, 2020 Plaintiff-Appellee, v No. 348920 Wayne Circuit Court LC No. 18-008107-01-FJ MARQUEL ANTHONY REED, Defendant-Appellant. Before: GLEICHER, P.J., and K. F. KELLY and SHAPIRO, JJ. PER CURIAM. Defendant appeals his jury-trial convictions of assault with intent to commit great bodily harm less than murder (AWIGBH), MCL 750.84, and two counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant, age 16 at the time of the offense, was sentenced as an adult to 2 to 10 years’ imprisonment for the AWIGBH conviction, to be served consecutive to concurrent 2-year terms of imprisonment for the two counts of felonyfirearm. Defendant pleaded guilty to carrying a concealed weapon (CCW), MCL 750.227, and was sentenced to 3 months to 5 years’ imprisonment for that conviction, which runs concurrent to his sentence for AWIGBH. Defendant challenges his jury-trial convictions and the trial court’s decision to sentence him as an adult. We affirm. I. BACKGROUND This action arises from the shooting of Tyler Smith in Detroit during the early morning hours of July 15, 2018. The events leading up to the shooting are mostly undisputed. A party that began elsewhere moved to Devante Wilson’s home. Wilson’s ex-girlfriend, Crystal Rials, lived down the street and was acting erratically. Wilson eventually went down the street to speak to Rials outside of her home. A commotion began involving Wilson, Rials and her daughter, DT. At some point DT called her boyfriend, defendant, asking him to come to that location. Wilson, age 32, asked DT not to call defendant because the two were not on good terms. Defendant and Wilson confronted one another and a heated exchanged ensued. When they were on verge of fighting, defendant gave a handgun he was carrying to the friend who had driven him to Rials’s home. DT successfully prevented the fight by pushing Wilson and defendant apart. -1- Friends of Wilson’s, including Darius Williams and Smith, came down from the party to act as backup for Wilson. Eventually, Wilson, Williams and Smith began to disperse and walk away from defendant. Defendant then retrieved his gun. The record indicates that when gunshots fired out, Smith and Williams were closer to defendant than Wilson. Multiple witnesses testified that after the initial gun shots they saw defendant with a gun in the middle of the street. Smith was struck by a bullet and paralyzed from the waist down as a result. Williams pulled out his gun and fired it at defendant, but did not hit him. Defendant’s gun jammed, and Wilson unsuccessfully chased him down the street. Defendant was arrested and claimed that he acted in self-defense. At trial, defendant testified that when he arrived on the scene Wilson came up to him and called him vulgar names in an attempt to provoke a fight. Defendant explained that he tried to call his stepfather on his cellular telephone instead of fighting because he wanted to go home, but his stepfather did not answer. According to defendant, while he was trying to call his stepfather, he noticed Williams was standing near him and “fidgeting” with a gun concealed in the waistband of his pants. Defendant said that he heard one shot as he was putting his phone in his pocket and that he then took his gun from his friend, closed his eyes, and fired four shots, at which point his gun jammed and he ran. After the close of testimony, the jury acquitted defendant of assault with intent to murder (AWIM), MCL 750.83, but convicted him of AWIGBH and two counts of felony-firearm. Before trial, defendant pleaded guilty to CCW in order to seek sentencing under the Holmes Youthful Trainee Act, MCL 762.11 et seq. At the sentencing hearing, however, the trial court decided to sentence defendant as an adult. This appeal followed. II. INEFFECTIVE ASSISTANCE OF COUNSEL Defendant first argues that the trial court effectively directed the jury to find him guilty of AWIGBH if it concluded that he was not guilty of AWIM and that his trial counsel was ineffective for failing to object. Defendant also argues that his counsel was ineffective for not objecting to the verdict form on the same basis. Because the instructions and verdict form were proper, trial counsel’s lack of objection was not ineffective.1 To establish a claim of ineffective assistance of counsel, a defendant is required to demonstrate “that (1) counsel’s performance fell below an objective standard of reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability that the outcome would have been different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). Generally, when examining a defendant’s claim of ineffective assistance of counsel, “this Court reviews for clear error the trial court’s findings of fact and reviews de novo questions of constitutional law.” People v Dixon-Bey, 321 Mich App 490, 515; 909 NW2d 458 (2017). However, because a Ginther hearing was not held regarding defendant’s claims, our review is “limited to mistakes apparent on the record.” People v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009). 1 -2- “Challenges to jury instructions are considered in their entirety to determine whether the trial court committed error requiring reversal.” People v Eisen, 296 Mich App 330, 329; 820 NW2d 229 (2012) (quotation marks citation and omitted). “[A]n imperfect instruction is not grounds for setting aside a conviction if the instruction fairly presented the issues to be tried and adequately protected the defendant’s rights.” People v Kowalski, 489 Mich 488, 501-502; 803 NW2d 200 (2011). A verdict form is considered part of the jury instructions. See People v Garcia, 448 Mich 442, 483-484; 531 NW2d 683 (1995). The trial court instructed the jury as follows: [Y]ou must consider the crime of assault with intent to murder first. If you all agree that the defendant is guilty of that crime, you may stop your discussions and return your verdict. If you believe that the defendant is not guilty of assault with intent to murder, or if you cannot agree about that crime, you should consider the less serious crime of assault with intent to do great bodily harm less than murder . . . . You can go back to assault with intent to murder after discussing assault with intent to do great bodily harm less than murder if you want to. Defendant takes issue with the trial court telling the jury that it should “consider” AWIGBH without expressly telling the jury that it could find defendant not guilty of that charge. However, any error was cured by the trial court’s later instruction that the jury “must consider each crime separately in light of all the evidence in the case” and “may find the defendant guilty of all or any one, any combination of these crimes, guilty of a less serious crime, or not guilty.” That the jury could find defendant not guilty of AWIGBH was also made by clear by the verdict form, which the trial court explained as follows: I have prepared a Verdict Form listing the possible verdicts. In Counts One and Two . . . you may return only one verdict on this count. So you’re gonna mark only one box. The options are not guilty of either, or guilty of Count One, assault with intent to murder, or guilty of Count Two, the lesser offense assault with intent to do great bodily harm less than murder. The jury verdict form stated as follows: COUNT 1 AND COUNT 2: Assault with Intent to Murder AND Assault with Intent to Do Great Bodily Harm Less Than Murder You may return only ONE verdict on this count. Mark ONLY ONE of the following boxes: NOT GUILTY OR GUILTY of COUNT 1, Assault with Intent to Murder OR -3- GUILTY of COUNT 2, GUILTY of the lesser offense of COUNT 1, Assault with Intent to Do Great Bodily Harm Less Than Murder Defendant argues that the jury verdict form used in this case is similar to the form that was found to be improper in People v Wade, 283 Mich App 462, 465; 771 NW2d 447 (2009). In Wade, the verdict form was defective “because it did not give the jury the opportunity to return a general verdict of not guilty” of premeditated murder and the lesser included offenses. Id. at 468. In contrast, the verdict form in this case allowed the jury to return a general verdict of not guilty for AWIM and the lesser included offense of AWIGBH. Therefore, the defect that required reversal in Wade is not present here. In sum, the trial court correctly informed the jury it could return one of three verdicts: guilty of AWIM, guilty of the lesser included offense of AWIGBH, or not guilty of either crime. The trial court explicitly instructed the jury it could choose only one of these three separate options, and the verdict form allowed the jury to return a general verdict of not guilty. Accordingly, defense counsel did not commit professional error by declining to object to the jury instructions or the verdict form. People v Knapp, 244 Mich App 361, 386; 624 NW2d 227 (2001) (“[D]efense counsel is not required to make frivolous or meritless motions or objections.”). Given that the trial court accurately instructed the jury, defendant also cannot show any prejudice from the alleged error. III. JURY INSTRUCTIONS Defendant next argues the trial court erred by failing to inform the jury that he could only be found guilty of AWIM or AWIGBH if it concluded that he specifically intended to kill or greatly harm Smith, the complainant. We find no error.2 Defendant contends that the jury instructions and verdict form confused and misled the jury because neither expressly indicated that Smith was defendant’s intended victim. Defendant raised this objection before the trial court, and the court ruled that it would follow the model jury instructions for AWIM and AWIGBH, which provide that the prosecutor must prove that “the defendant tried to physically injure another person.” M Crim JI 17.3 & M Crim JI 17.7 (emphasis added). The pertinent portions of a model jury instruction “must be given” if the instruction is (a) applicable, (b) accurately states the applicable law, and (c) is requested by a party. MCR 2.512(D)(2)(a)-(c). “Claims of instructional error are generally reviewed de novo by this Court, but the trial court’s determination that a jury instruction is applicable to the facts of the case is reviewed for an abuse of discretion.” People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007). “An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes.” People v Bass, 317 Mich App 241, 256; 893 NW2d 140 (2016) (quotation marks and citation omitted). 2 -4- The model jury instructions for AWIM and AWIGBH accurately state the law and were applicable to the facts of this case. It is well-settled that to prove those offenses the prosecution need only show that defendant intended to kill or greatly harm someone, not necessarily the eventual victim. See People v Abraham, 256 Mich App 265, 270; 662 NW2d 836 (2003); People v Lawton, 196 Mich App 341, 350-351; 492 NW2d 810 (1992); People v Lovett, 90 Mich App 169, 172; 283 NW2d 357 (1979). The doctrine of transferred intent allows for conviction when the defendant intends to assault one individual, but by mistake or accident assaults another person. See Lovett, 90 Mich App at 171-172. As we explained in Lovett regarding AWIGBH: Before defendant can be convicted it must first be shown that he had the intention to cause great bodily harm to someone. Merely because he shot the wrong person makes his crime no less heinous. It is only necessary that the state of mind exist, not that it be directed at a particular person. [Id. at 172.] Accordingly, the jury did not necessarily have to find that defendant intended to shoot Smith; rather, defendant could be found guilty if he intended to shoot someone else and shot Smith by mistake or accident. Under those circumstances, the trial court did not err by declining to grant defendant’s request to specify in the jury instructions and verdict form that Smith needed to be the intended target. The jury instructions and verdict form fairly and sufficiently presented the issues to the jury. IV. SUFFICIENCY AND GREAT WEIGHT OF THE EVIDENCE Defendant next argues that sufficient evidence was not presented to support his conviction of AWIGBH and that the prosecution failed to rebut his claim of self-defense. Defendant also argues that the jury’s verdict for AWIGBH was against the great weight of the evidence. Having reviewed the record, we find that the evidence was sufficient and that the great weight of the evidence supported the jury’s verdict.3 “The elements of assault with intent to do great bodily harm less than murder are: (1) an attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an intent to do great bodily harm less than murder.” People v Blevins, 314 Mich App 339, 357; 886 NW2d 456 (2016) (quotation marks and citation omitted). Circumstantial evidence and reasonable 3 We review de novo a challenge to the sufficiency of the evidence. People v Gaines, 306 Mich App 289, 296; 856 NW2d 222 (2014). In doing so, we view the evidence “in the light most favorable to the prosecution[] to determine whether the trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt.” Id. “We review a properly preserved great-weight issue by deciding whether the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand.” People v Cameron, 291 Mich App 599, 617; 806 NW2d 371 (2011). But while a defendant need not take any action to preserve a challenge to the sufficiency of the evidence, People v Williams, 294 Mich App 461, 471; 811 NW2d 88 (2011), defendant failed to preserve his great-weight-of-the-evidence argument by bringing a motion for a new trial, People v Musser, 259 Mich App 215, 218; 673 NW2d 800 (2003). Unpreserved issues are reviewed by this Court for plain error affecting the defendant’s substantial rights. See People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). -5- inferences arising from that evidence may provide sufficient proof to meet the elements of a crime. People v Henderson, 306 Mich App 1, 9; 854 NW2d 234 (2014). Defendant first contends that there was no evidence that he shot Smith. This argument ignores the substantial circumstantial evidence on that matter. Williams testified that he heard gunshots as he was walking away from defendant and when he turned around he saw defendant shooting. Williams began shooting at defendant and testified that he did not see anyone else shooting at that time. Wilson similarly testified that he heard gunshots and when he turned around and went back toward Rials’s home he saw defendant in the middle of the street trying to unjam his gun. Smith’s girlfriend, AN, testified that she was with Smith when he was shot and that she only saw defendant, and then Williams, with a gun. It is also clear from the testimony that defendant was shooting in Smith’s direction. Defendant points out that one witness testified that defendant’s girlfriend, DT, was the one who shot Smith. However, “it is the role of the jury, not this Court, to determine the weight of the evidence or the credibility of witnesses.” People v Eisen, 296 Mich App 326, 331; 820 NW2d 229 (2012). And given the testimony that defendant was the only one shooting in Smith’s direction, there was sufficient circumstantial evidence for the jury to find that defendant shot Smith. Defendant next argues that there was no evidence that he intended to harm anyone. “Intent to do great bodily harm is intent to do serious injury of an aggravated nature.” People v Russel, 297 Mich App 707, 721; 825 NW2d 623 (2012). “Intent to cause serious harm can be inferred from the defendant’s actions, including the use of a dangerous weapon or the making of threats.” People v Stevens, 306 Mich App 620, 629; 858 NW2d 98 (2014). “Because of the difficulty in proving an actor's intent, only minimal circumstantial evidence is necessary to show that a defendant had the requisite intent.” Id. Defendant was in a heated confrontation with Wilson; Smith and Williams eventually came and provided backup for Wilson. According to the prosecutor’s proofs, as Wilson, Williams and Smith walked away from defendant, defendant retrieved a gun from his friend. He then fired multiple shots, at least some of which were in the direction of Smith, until his gun jammed. This evidence was more than sufficient for the jury to infer that defendant intended to do great bodily harm to either Smith or one of his companions. Defendant also argues that the prosecutor did not rebut the evidence supporting defendant’s claim of self-defense. Deadly force may be used in self-defense if the defendant “honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.” MCL 780.972(1)(a). “Once 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 Dupree, 486 Mich 693, 712; 788 NW2d 399 (2010). The jury’s consideration of self-defense rested on its evaluation of defendant’s credibility since his claim hinged on his testimony that he did not fire the first shots. The prosecution presented testimony that defendant shot first, which the jury found more credible than defendant’s testimony that he only fired the gun to protect himself. As previously stated, matters of witness credibility fall within the province of the jury. Eisen, 296 Mich App at 331. -6- In sum, sufficient evidence was presented to allow the jury to find that defendant intended great bodily harm to another and that he was not acting in self-defense. And given the testimony at trial, the jury’s verdict was not against the great weight of the evidence, i.e., the evidence did not preponderate so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand. People v Cameron, 291 Mich App 599, 617; 806 NW2d 371 (2011). V. JUVENILE SENTENCING Finally, defendant argues the trial court abused its discretion by sentencing him as an adult instead of as a juvenile. We do not find an abuse of discretion.4 Defendant was 16 years old when the shooting took place, and he was tried and convicted as an adult. Because adult sentencing is not mandated for AWIGBH, the trial court was required to “conduct a hearing at the juvenile’s sentencing to determine if the best interests of the public would be served by placing the juvenile on probation and committing the juvenile to an institution or agency described in the youth rehabilitation services act . . . .” MCL 769.1(3). The court was required to sentence defendant as an adult unless it found, by a preponderance of the evidence, that the interests of the public would be better served by sentencing the defendant as a juvenile. See MCL 769.1(3). When determining whether to sentence a juvenile as an adult, the trial court must consider the following factors: (a) The seriousness of the alleged offense in terms of community protection, including, but not limited to, the existence of any aggravating factors recognized by the sentencing guidelines, the use of a firearm or other dangerous weapon, and the impact on any victim. (b) The juvenile’s culpability in committing the alleged offense, including, but not limited to, the level of the juvenile’s participation in planning and carrying out the offense and the existence of any aggravating or mitigating factors recognized by the sentencing guidelines. (c) The juvenile’s prior record of delinquency including, but not limited to, any record of detention, any police record, any school record, or any other evidence indicating prior delinquent behavior. (d) The juvenile’s programming history, including, but not limited to, the juvenile’s past willingness to participate meaningfully in available programming. “In reviewing a trial court’s decision to sentence a minor as a juvenile or as an adult, this Court applies a bifurcated standard of review.” People v Cheeks, 216 Mich App 470, 474; 549 NW2d 584 (1996). That is, we “review the trial court’s findings of fact under the clearly erroneous standard and the ultimate decision to sentence the minor as a juvenile or as an adult for an abuse of discretion.” Id. 4 -7- (e) The adequacy of the punishment or programming available in the juvenile justice system. (f) The dispositional options available for the juvenile. [MCL 769.1(3).] At sentencing, the trial court discussed the factors set forth in MCL 769.1(3) at length. The court reviewed defendant’s prior juvenile record, which included two counts of assault and battery, larceny from a person, and unlawfully taking possession and driving away a motor vehicle. The court found that defendant had not benefited from his time in the juvenile justice system and opined that, instead of taking responsibility for his actions and attempting to change, defendant chose to involve himself in situations in which he felt it necessary to carry and use a gun. The court concluded that defendant knew he should not be carrying a gun as a minor and opined that the shooting could have been avoided at multiple points if defendant had exercised better judgment. Ultimately, defendant’s choices led to Smith being paralyzed. The trial court recognized that defendant may have panicked and that he did not appear to be a naturally violent person. Defendant emphasizes these mitigating facts, but the court also found that defendant was aware of the risk of going to the contentious scene with a gun and that he did so knowing he might have to fire it and that he was not afraid to do so. The court also considered the severity of the crime and its impact on Smith’s quality of life in determining that adult sentencing was warranted. Viewing the totality of the factors, the mitigating facts relied on by defendant does not establish an abuse of discretion. Defendant further contends the trial court should have considered a report from Dr. Bruce Howard, who recommended defendant would benefit from counseling and services and should be sentenced as a juvenile. We presume that the trial court considered Dr. Howard’s report because it was included in the presentence investigation report, which the court reviewed. The lack of discussion of Dr. Howard’s report at the hearing does not require reversal of the court’s decision to sentence defendant as an adult. In sum, considering defendant’s past juvenile criminal record, his escalating incidents of misconduct, and the severity of the crime, the trial court did not abuse its discretion by sentencing him as an adult. VI. CONCLUSION Defense counsel was not ineffective for declining to object to the language and formatting used in the jury instructions and verdict form regarding the charges of AWIM and AWIGBH, and the trial court did not err by declining to name Smith in the jury instructions and on the jury verdict form. Sufficient evidence was presented to support defendant’s conviction of AWIGBH, and the jury’s verdict was not against the great weight of the evidence. Finally, the trial court did not abuse its discretion by electing to sentence defendant as an adult. Affirmed. /s/ Elizabeth L. Gleicher /s/ Kirsten Frank Kelly /s/ Douglas B. Shapiro -8-

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