                            STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  July 20, 2017
                 Plaintiff-Appellee,

v                                                                 No. 329847
                                                                  Wayne Circuit Court
DAVID RAMON COLEMAN,                                              LC No. 15-001347-01-FC

                 Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

                 Plaintiff-Appellee,

v                                                                 No. 330129
                                                                  Wayne Circuit Court
JABARI HASSEN REGAINS,                                            LC No. 15-001347-02-FC

                 Defendant-Appellant.


Before: MARKEY, P.J., and METER and SHAPIRO, JJ.

PER CURIAM.

        Defendants David Coleman and Jabari Regains were tried jointly, before separate juries.
Each defendant was convicted of first-degree felony murder based on larceny, MCL
750.316(1)(b); first-degree home invasion, MCL 750.110a; armed robbery, MCL 750.529; felon
in possession of a firearm, MCL 750.224f; and possession of a firearm during the commission of
a felony, MCL 750.227b.1 The trial court sentenced Coleman to life imprisonment without
parole for the felony-murder conviction and to concurrent prison terms of 15 to 25 years for the
armed robbery conviction, 12 to 20 years for the home invasion conviction, and 2-1/2 to 5 years
for the felon-in-possession conviction, to be served consecutively to a two-year term of
imprisonment for the felony-firearm conviction. The court sentenced Regains to life
imprisonment without parole for the felony-murder conviction and to concurrent prison terms of


1
    Regains was convicted of felony-firearm, second offense.


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15 to 30 years for the armed robbery conviction, 10 to 20 years for the home invasion conviction,
and 2 to 5 years for the felon-in-possession conviction, to be served consecutively to a five-year
term of imprisonment for the felony-firearm conviction.2 Coleman appeals as of right in Docket
No. 329847, and Regains appeals as of right in Docket No. 330129. We affirm in both appeals
but remand in Docket No. 330129 for the ministerial task of correcting the judgment of sentence.

        Defendants’ convictions arose from the robbery and shooting death of William Fultz
inside the Detroit apartment of Johnnie Mae Parrott, where Fultz had been living. The
prosecutor’s theory at trial was that the defendants were aided by Fultz’s friend, Sharnethia
Wells, who visited Parrott’s apartment on the night of December 28, 2014, and engaged in sexual
relations with Fultz. Wells pleaded guilty to second-degree murder, MCL 750.317, in exchange
for her testimony against defendants at trial.

       Wells testified that she helped arrange for defendants to rob Fultz. At some point during
the night of December 28, 2014, Wells left Parrott’s apartment, but left the doors to the
apartment and the building open or unlocked, enabling defendants to enter. Parrott testified that
she woke up and discovered two men in her apartment, whom she was unable to identify at trial.
One of the men pointed a gun at her and told her to be quiet. Fultz came out of his bedroom and
asked the men what they wanted. The second man began going through Fultz’s bedroom. Fultz
charged at one of the men, and Parrott ran out of the apartment. As Parrott ran, she heard
multiple gunshots. Parrott ran to another apartment and saw the two suspects leave her
apartment, run to a car, and leave. When Parrott returned to her apartment, she searched for
Fultz and eventually discovered his body in the basement of the building. He had received two
gunshot wounds that caused his death.

                            I. SUFFICIENCY OF THE EVIDENCE

        Both defendants challenge the sufficiency of the evidence offered in support of their
convictions. In reviewing a challenge to the sufficiency of the evidence in support of a
conviction, this Court reviews the evidence de novo, viewing it 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 charged crime were proven beyond a reasonable doubt. People v Schaw, 288
Mich App 231, 233; 791 NW2d 743 (2010). Circumstantial evidence and any reasonable
inferences arising from the evidence may be sufficient to prove the elements of a crime. People
v Abraham, 234 Mich App 640, 656; 599 NW2d 736 (1999). “This Court will not interfere with
the trier of fact’s role of determining the weight of the evidence or the credibility of witnesses.”
People v John Williams, Jr, 268 Mich App 416, 419; 707 NW2d 624 (2005). “All conflicts in
the evidence must be resolved in favor of the prosecution.” Id.

       Defendants do not dispute that sufficient evidence was presented to establish that each of
the charged crimes were committed by someone. They argue only that the evidence was


2
  The judgment of sentence for Regains does not accurately reflect the sentences imposed for the
felon-in-possession and felony-firearm convictions. Accordingly, we remand in Docket No.
330129 for the ministerial task of correcting the clerical errors in the judgment of sentence.


                                                -2-
insufficient to establish their identities as participants in the crimes. We disagree. Identity is an
essential element of every offense. People v Yost, 278 Mich App 341, 356; 749 NW2d 753
(2008). Positive identification by a witness can be sufficient to support a conviction. People v
Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000). The credibility of identification
testimony is for the trier of fact to resolve and this Court will not resolve the issue anew. People
v Dunigan, 299 Mich App 579, 582; 831 NW2d 243 (2013); Davis, 241 Mich App at 700.

        Parrott’s testimony indicated that two men were involved in the offense, one of whom
pointed a gun at her during the offense. Although Parrott was not able to identify the assailants,
Wells expressly identified the robbers as defendants Coleman and Regains. Wells testified that
she was with Coleman and Regains before the robbery, told defendants that Fultz had money,
and helped plan the robbery. Wells testified, “I set up the murder.” Wells testified that when she
left the apartment, she left the apartment doors unsecured, thereby allowing Coleman and
Regains to gain entry into the apartment. Parrott’s testimony corroborated that Wells was at the
apartment shortly before the robbery. The evidence was sufficient to permit the jury to find
beyond a reasonable doubt that Coleman and Regains were the two men who broke into Parrott’s
apartment and murdered Fultz.

        Defendants argue that the testimony of Wells and Parrott was not credible because they
admitted to consuming drugs or alcohol on the night of the offense, and Wells had a motive to
falsify her testimony to obtain the benefit of a favorable plea agreement, which allowed her to
avoid a potential life sentence. However, the credibility of witness testimony is for the jury to
resolve and this Court does not resolve it anew. Dunigan, 299 Mich App at 582; Williams, 268
Mich App at 419. In any event, we note that Parrott testified that she “barely touched” the crack
cocaine offered by Wells that night, and she denied being “high” at the time of the offense. In
addition, Wells testified that she had a high tolerance for alcohol, and she denied using any drugs
before she went to see Fultz at Parrot’s apartment that night.3

         Further, Parrott’s and Wells’s accounts were consistent, and they were corroborated by
other evidence. Wells and Parrot both testified about Wells’s visits to Parrott’s apartment on the
night of the robbery. Wells testified that she used her cellular telephone to communicate with
Coleman and Regains on the night of the robbery, Parrott testified that she saw Wells using her
cellular telephone while she was at the apartment before the robbery, and cellular telephone
records corroborated that Wells communicated with both Coleman and Regains that night.
Coleman’s involvement in the offense was further supported by the testimony of Deandre Driver
and Deshawn Leath, each of whom testified that Coleman made statements to them in which
Coleman admitted his involvement in an offense similar to that described by Wells. Leath
testified that Coleman admitted shooting a man during the offense and that items taken were “a
few 8 balls, couple ounces of weed, and some money.”



3
   Coleman makes reference to Wells having consumed substances before her interview with
police. We note that Wells described her state on the date of the interview as merely “buzz[ed].”
At any rate, this interview was conducted well after the events in question, and Wells testified at
trial, in person.


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        In addition, Wells testified that both defendants retrieved guns from underneath the hood
of a car before the two defendants went into the apartment building. Testing of the two bullet
fragments recovered from Fultz’s body indicated that the bullets were fired by two different
weapons. This evidence allowed the jury to infer that both defendants were armed during the
offense and that each defendant shot Fultz.4

       The prosecution presented sufficient evidence to establish defendants’ guilt of the
charged crimes beyond a reasonable doubt.5




4
 Coleman points out that Parrot was not able to identify the two robbers, and that Wells was not
present inside the apartment during the offenses. Coleman is potentially suggesting that the
evidence therefore failed to show what role he may have played during the events. Even
disregarding that Coleman’s appellate arguments are focused on identity, we note for the sake of
completeness that there was sufficient evidence regarding his role. “The elements of felony
murder are: (1) the killing of a human being, (2) with the intent to kill, to do great bodily harm,
or to create a very high risk of death or great bodily harm with knowledge that death or great
bodily harm was the probable result [i.e., malice], (3) while committing, attempting to commit,
or assisting in the commission of any of the felonies specifically enumerated . . . .” People v
Carines, 460 Mich 750, 759; 597 NW2d 130 (1999) (quotation marks and citation omitted).
“The facts and circumstances of the killing may give rise to an inference of malice.” Id. “A jury
may infer malice from evidence that the defendant intentionally set in motion a force likely to
cause death or great bodily harm.” Id. “Malice may also be inferred from the use of a deadly
weapon.” Id.

        As previously indicated, Wells testified that both defendants were armed with guns when
they entered the apartment building. The medical examiner recovered two bullets from Fultz’s
body, and ballistics testing of those bullets showed that they were fired by two different guns.
Consistent with this evidence, Leath testified that Coleman told him that, during the incident, the
victim began “tussling” with Coleman’s cousin, so Coleman shot the victim. Leath also testified
about the items taken. The evidence as a whole was sufficient to enable the jury to find beyond a
reasonable doubt that Coleman committed a home invasion and armed robbery and killed Fultz
during the commission of a larceny, and that Coleman acted with the requisite malice to be guilty
of felony murder. Similarly, Wells’s testimony that both defendants were armed with guns when
they entered the apartment building, and the ballistics evidence that Fultz was shot by bullets
fired from two different guns, support Regains’s convictions.
5
  We reject Coleman’s very cursory argument that the verdicts were against the great weight of
the evidence.


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                              II. PHOTOGRAPHIC EVIDENCE

       Both defendants argue that the trial court erred in admitting several photographs of the
crime scene, which included photos of the victim’s naked body, as well as photographs taken
during the victim’s autopsy. A trial court’s decision to admit or exclude evidence is reviewed for
an abuse of discretion. People v Duncan, 494 Mich 713, 722; 835 NW2d 399 (2013). A trial
court abuses its discretion when its decision falls outside the range of reasonable and principled
outcomes. Id. at 722-723.

       “Photographs are admissible if substantially necessary or instructive to show material
facts or conditions.” People v Hoffman, 205 Mich App 1, 18; 518 NW2d 817 (1994). “If
photographs are otherwise admissible for a proper purpose, they are not rendered inadmissible
merely because they vividly portray the details of a gruesome or shocking accident or crime,
even though they may tend to arouse the passion or prejudice of the jurors.” Id. Whether
relevant photographic evidence should be excluded depends on whether the probative value of
the photographs is substantially outweighed by the danger of unfair prejudice. People v Mills,
450 Mich 61, 76; 537 NW2d 909 (1995), mod 450 Mich 1212 (1995). Photographs that depict
the gruesome nature of the crime and are not pertinent, relevant, or material to any issue in the
case, but serve only to inflame the jurors’ minds and prejudice them against the defendant,
should be excluded. Id. at 76-77.

        Having reviewed the challenged photographs, we cannot conclude that the trial court
abused its discretion in allowing their admission. An evidence technician referred to the
photographs of the crime scene in his testimony, and the medical examiner referred to the
autopsy photographs in his testimony. Autopsy photographs are considered relevant when they
are instructive in depicting the nature and extent of the victim’s injuries. People v Flowers, 222
Mich App 732, 736; 565 NW2d 12 (1997). Moreover, “[p]hotographs are not excludable simply
because a witness can orally testify” about the same information; photographs may be admitted
to corroborate a witness’s testimony. Mills, 450 Mich at 76.

        Further, we are not persuaded that the probative value of the photos was substantially
outweighed by the danger of unfair prejudice under MRE 403. The record discloses that the trial
court took care to exercise its discretion in deciding whether to admit the photographs; it did
exclude some photos that were offered by the prosecution. The photographs that were admitted
were not overly gruesome or bloody. Although two crime scene photographs depict the victim’s
genitals, those photographs were taken from a distance and were relevant to show how the victim
was found at the scene. Because those two photographs were taken from different angles, they
were not required to be excluded on the ground that they were cumulative. In sum, the trial court
did not abuse its discretion by admitting the challenged photographs.

                   III. DEFENDANT COLEMAN’S STANDARD 4 BRIEF

       Defendant Coleman raises an additional issue of prosecutorial misconduct in a pro se
supplemental brief, filed pursuant to Supreme Court Administrative Order No. 2004-6, Standard
4. He argues that the prosecutor misstated the evidence in both her opening statement and
closing argument, which denied him a fair trial. Because Coleman did not object to any of the
challenged statements at trial, his claims are unpreserved. We review unpreserved claims of

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prosecutorial misconduct for plain error affecting substantial rights. People v Abraham, 256
Mich App 265, 274; 662 NW2d 836 (2003). An error is plain if it is clear or obvious, and an
error affects substantial rights if it is prejudicial, i.e., if it affects the outcome of the proceedings.
People v Jones, 468 Mich 345, 355-356; 662 NW2d 376 (2003). This Court will not reverse if
the prejudicial effect of any improper comment could have been cured by a timely instruction
from the trial court. People v Joezell Williams II, 265 Mich App 68, 70-71; 692 NW2d 722
(2005), aff’d 475 Mich 101 (2006).

        Claims of prosecutorial misconduct are decided case by case and the challenged
comments must be read in context. People v McElhaney, 215 Mich App 269, 283; 545 NW2d 18
(1996). The test for prosecutorial misconduct is whether the defendant was denied a fair trial.
People v Bahoda, 448 Mich 261, 266-267; 531 NW2d 659 (1995). A prosecutor is afforded
great latitude when making arguments at trial, and the prosecutor is permitted to argue the
evidence and reasonable inferences arising from the evidence in support of her theory of the
case. Id. at 282.

        Coleman argues that the prosecutor misstated the evidence in her opening statement when
she stated that Parrott would describe the vehicle that Wells arrived in as a four-door vehicle.6
Coleman correctly observes that, at trial, Parrott testified that Wells arrived in a gray two-door
vehicle. Parrott also testified that when Wells left the first time, she got into the same two-door
vehicle. “[T]his Court has held that when a prosecutor states that evidence will be submitted to
the jury, and the evidence is not presented, reversal is not warranted if the prosecutor did so
acting in good faith.” People v Wolverton, 227 Mich App 72, 75; 574 NW2d 703 (1997). In this
case, although Parrott’s description of the vehicle associated with Wells varied from the
description offered by the prosecutor in her opening statement, there is no indication that the
prosecutor acted in bad faith by referring to the vehicle that Wells arrived in and returned to as a
four-door vehicle, inasmuch as other evidence established that Coleman’s vehicle, a silver Buick,
was a four-door model. Moreover, Coleman was not prejudiced by the misstatement because the
number of doors was a minor detail in the context of this case. The significance of Parrot’s
testimony was that she saw Wells arrive and leave in the same vehicle, which Wells testified
belonged to Coleman. In addition, the trial court later instructed Coleman’s jury that “[t]he
lawyers’ statements and arguments are not evidence” and that the jury “should only accept things
the lawyers say that are supported by evidence . . . .” These instructions were sufficient to
protect Coleman’s substantial rights.

        Coleman’s next claim relates to the prosecutor’s discussion of “physical evidence” at the
crime scene. However, the challenged remarks were made only to the Regains’s jury, and
therefore could not have prejudiced Coleman. Looking at comparable remarks to Coleman’s
jury, the prosecutor did not misstate the evidence by stating that the two bullets removed from
Fultz’s body came from two different guns, because the prosecution’s firearm expert testified



6
  We note that Coleman erroneously cites excerpts from the prosecutor’s opening statement and
closing arguments to Regains’s jury in support of his arguments on appeal. We have reviewed
Coleman’s claims by considering the prosecutor’s comparable statements to Coleman’s jury.


                                                   -6-
that ballistics testing confirmed that the bullets were fired by two different firearms. Further,
because Wells identified the two robbers as Coleman and Regains, it was reasonable for the
prosecutor to infer that Coleman and Regains were the two shooters.

       Coleman also argues that the prosecutor improperly stated in her closing argument that
“Johnnie Mae tells us that she sees and she hears the victim rush at Mr. Coleman.” Coleman
argues that this statement is inaccurate because Parrott could not identify either of the two men.
However, the prosecutor’s comments reflect her argument that Coleman was the suspect Parrott
described as fighting with Fultz. The prosecutor was permitted to argue from the evidence that
Coleman was the suspect who fought with Fultz. To the extent that the evidence could be
viewed differently, the trial court’s instructions that “[t]he lawyers’ statements and arguments are
not evidence” and that the jury “should only accept things the lawyers say that are supported by
evidence . . . .” were sufficient to protect Coleman’s substantial rights.

       Coleman also argues that the prosecutor misstated the evidence during closing argument
when she stated that Parrott testified that “when I look out, I see her [Wells] associated with this
gray car,” which the prosecutor had earlier said was Coleman’s “little gray Buick.” There was
nothing improper about this argument because Parrott testified that Wells arrived in and left in
the same vehicle, which was the same vehicle the two suspects entered when they fled the
building after the robbery, and Wells testified that the vehicle was Coleman’s car.

        Coleman argues that the prosecutor also improperly referred to physical evidence of the
shooting in her closing argument when she stated that both defendants shot the victim. Coleman
argues that this argument was improper because the firearms expert admitted that he could not
say who shot the victim. However, the prosecutor properly argued that the evidence supported
that both defendants shot Fultz. She stated:

               What’s important about these bullets is that we know that it’s both
       defendants who were shooters. It wasn’t just one person who was pulling the
       trigger. We know that it was two people that were pulling the trigger.

The prosecutor discussed the firearm expert’s testimony about the differences between the two
bullets that were recovered from the victim. From that evidence, the prosecutor theorized as
follows:

              So what does that tell us? We know that there are two different guns that
       were being fired into Mr. Fultz the night of December 28th showing that there
       were two people there both firing their weapons, both intending to kill Mr. Fultz.

Again, the prosecutor’s argument is supported by the ballistics evidence, which indicated that the
two bullets recovered from the victim were fired by two different firearms. It was reasonable to
infer from the evidence that two different people shot the victim, and that those people were
Coleman and Regains. Accordingly, the remarks were proper.




                                                -7-
        We affirm in both appeals but remand in Docket No. 330129 for the ministerial task of
correcting the judgment of sentence.


                                                           /s/ Jane E. Markey
                                                           /s/ Patrick M. Meter
                                                           /s/ Douglas B. Shapiro




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