                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 8, 2015
              Plaintiff-Appellee,

v                                                                  No. 321917
                                                                   Wayne Circuit Court
SEAN ANDRE-GEORGE CAMPBELL,                                        LC No. 13-010047-FH

              Defendant-Appellant.


Before: BORRELLO, P.J., and JANSEN and OWENS, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial convictions of felonious assault, MCL 750.82,
and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.
Defendant was sentenced to one day in jail, time served, for the felonious assault conviction and
two years’ imprisonment for the felony-firearm conviction. We affirm.

        This case arises from an altercation between defendant and Brandon Mellin at a gas
station in Melvindale, Michigan. Defendant and Mellin exchanged words when the latter
brushed past defendant on his way out of the gas station, and the argument quickly escalated.
Defendant hit Mellin in the face, then drew a handgun from the waistband of his pants and
pushed the gun barrel into Mellin’s face.



                            I. PROSECUTORIAL MISCONDUCT

        Defendant contends that the prosecutor improperly influenced the jury by arguing facts
not in evidence, vouching for Mellin’s credibility, and appealing to the jurors’ sense of civic
duty, thereby depriving him of a fair and impartial trial. We disagree.

       A defendant must “contemporaneously object and request a curative instruction” to
preserve an issue of prosecutorial misconduct for appellate review. People v Bennett, 290 Mich
App 465, 475; 802 NW2d 627 (2010). Defense counsel did not object to any of the prosecutor’s
comments that defendant complains of on appeal. Thus, the issue is not preserved for appellate
review. See id.



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        We review unpreserved claims of prosecutorial error for plain error affecting substantial
rights. People v Gaines, 306 Mich App 289, 308; 856 NW2d 222 (2014). To show plain error, a
defendant must establish that “1) error . . . occurred, 2) the error was plain, i.e., clear or obvious,
3) and the plain error affected substantial rights.” People v Carines, 460 Mich 750, 763; 597
NW2d 130 (1999). An error affects the defendant’s substantial rights if it prejudiced the
defendant by affecting the outcome of the trial. Id. Even if a defendant can satisfy all three
requirements, appellate reversal is warranted only when the plain error resulted in the conviction
of an actually innocent defendant or when the error seriously affected the “fairness, integrity or
public reputation of judicial proceedings independent of the defendant’s innocence.” Id. at 763
(citation and quotation marks omitted).

        “The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial.” People v Brown, 294 Mich App 377, 382; 811 NW2d 531 (2011). Generally,
however, a court gives a prosecutor “great latitude regarding his or her arguments and conduct at
trial.” People v Fyda, 288 Mich App 446, 461; 793 NW2d 712 (2010). In determining whether
a prosecutor’s comments were improper, we “evaluate the prosecutor’s remarks in context, in
light of defense counsel’s arguments and the relationship of these comments to the admitted
evidence.” People v Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009). A prosecutor need not
confine his or her arguments to the blandest terms possible. Bennett, 290 Mich App at 475. “
‘[A]n otherwise improper remark may not rise to an error requiring reversal when the prosecutor
is responding to the defense counsel’s argument.’ ” People v Watson, 245 Mich App 572, 593;
629 NW2d 411 (2001) (citation omitted; alteration in original). Finally, “[c]urative instructions
are sufficient to cure the prejudicial effect of most inappropriate prosecutorial statements[,]”
Seals, 285 Mich App at 22, and a jury is presumed to follow the trial court’s instructions, People
v Wood, 307 Mich App 485, 506; 862 NW2d 7 (2014).

                           A. ARGUING FACTS NOT IN EVIDENCE

       Defendant first contends that the prosecutor committed misconduct by stating that
defendant shot Mellin and by arguing, without the benefit of supporting lay or expert testimony,
that Mellin would have dropped his gloves if he intended to fight defendant.

        A prosecutor is “generally free to argue the evidence and all reasonable inferences from
the evidence as it relates to [his or her] theory of the case.” People v Unger, 278 Mich App 210,
236; 749 NW2d 272 (2008). A prosecutor, however, may not make a statement of fact to the
jury that is unsupported by evidence presented at trial, nor may the prosecutor argue the effect of
testimony that was not entered into evidence. Id. at 241. “It is well known that factfinders may
and should use their own common sense and everyday experience in evaluating evidence.”
People v Simon, 189 Mich App 565, 567; 473 NW2d 785 (1991).

       During his closing argument, the prosecutor discussed the elements of the offenses with
which defendant was charged. Regarding the charge of felonious assault, the prosecutor said,

       Did the [d]efendant, Mr. Campbell, either attempt to commit a battery on Brandon
       Mellin or did [sic] an act that would cause a reasonable person to fear an
       immediate battery? Battery is a harmful or offensive touching.


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       I think we would all agree that being shot is a harmful or offensive touching. I
       think we’d all agree that being punched in the face with a gun would be a harmful
       or offensive touching.

         Contrary to defendant’s argument on appeal, the prosecutor was not actually arguing that
defendant shot Mellin. There was no question that defendant’s conduct was restricted to
punching Mellin and then shoving the gun in Mellin’s face, two actions that the prosecutor
referenced time and again throughout the trial and that the jurors had seen for themselves
numerous times on the gas station video. Imprecise though his language may have been, the
prosecutor was simply remarking that it was reasonable for Mellin to fear being shot, and thus,
that defendant intended to put Mellin in reasonable apprehension of an immediate battery. See
MCL 750.82; People v Chambers, 277 Mich App 1, 8; 742 NW2d 610 (2007) (listing the
elements of felonious assault as “(1) an assault, (2) with a dangerous weapon, and (3) with the
intent to injure or place the victim in reasonable apprehension of an immediate battery”).
Defendant’s own admission that he intended to make Mellin think that defendant would shoot
him if he failed to move away from the door buttresses this conclusion, as does the fact that the
prosecutor highlighted defendant’s admission immediately after he discussed harmful or
offensive touching. Thus, rather than arguing a fact not in evidence, the prosecutor was simply
drawing a reasonable inference—that defendant intended to make Mellin fear being shot—from
facts firmly in evidence. This is a permissible strategy during closing argument. See Unger, 278
Mich App at 236, 241.

        Later in his closing argument, the prosecutor stated, “But everybody knows if you’re
going to fight somebody and you’re holding gloves, not even with balled fists in your hands
[sic], what’s the first thing you’re going to do before you fight somebody? You drop your
gloves. First thing you do in a fight is you protect your face.” The prosecutor was merely
calling on the jurors to use their common sense and everyday experience to draw an inference
that Mellin did not make an aggressive move toward defendant, not that some ironclad rule
existed whereby one only fights after dropping one’s gloves. See Simon, 189 Mich App at 567.
Additionally, the video showed, and defendant testified, that Mellin never dropped his gloves
during the confrontation, entitling the prosecutor to argue a reasonable inference based on that
fact. See Unger, 278 Mich App at 236, 241.

         Moreover, the trial court instructed the jury that the lawyers’ statements, arguments, and
commentary were not evidence. Thus, assuming that the prosecutor’s comments were somehow
improper, this curative instruction was sufficient to cure any prejudicial effect, and defendant
fails to rebut the presumption that the jury followed the court’s instruction. See Wood, 307 Mich
App at 506; Seals, 285 Mich App at 22. Accordingly, defendant fails to establish plain error
affecting his substantial rights. See Carines, 460 Mich at 763.

                       B. VOUCHING FOR MELLIN’S CREDIBILITY

       “A prosecutor may not vouch for the credibility of a witness by implying that the
prosecution has some special knowledge that the witness is testifying truthfully.” People v
Rodriguez, 251 Mich App 10, 31; 650 NW2d 96 (2002). “A prosecutor may, however, argue
from the facts and testimony that the witnesses are credible or worthy of belief.” People v
Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007). During closing argument, a prosecutor

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may comment on the credibility of a prosecution witness “especially when there is conflicting
evidence and the question of the defendant’s guilt depends on which witnesses the jury
believes.” People v Thomas, 260 Mich App 450, 455; 678 NW2d 631 (2004).

        The comments the prosecutor made about Mellin during his closing argument did not
constitute improper vouching. At no point did the prosecutor imply that he possessed special
knowledge of Mellin’s honesty. See Rodriguez, 251 Mich App at 31. Instead, he pointed out
that Mellin, despite his personality quirks and medical issues, was credible or worthy of belief
based on his consistent and candid testimony. See Dobek, 274 Mich App at 66. This was
particularly appropriate because Mellin’s account of the confrontation differed substantially from
defendant’s account and because the question of defendant’s guilt depended on which of them
the jury believed. See Thomas, 260 Mich App at 455.

        Additionally, as noted earlier, the trial court instructed the jurors that the lawyers’
statements, arguments, and commentary were not evidence. The court also instructed the jurors
that “You must decide which witnesses you believe and how important you think their testimony
is” and exhorted them to rely on their own common sense and everyday experience when
evaluating witness credibility. This was sufficient to cure any potential prejudicial effect, and
defendant again fails to rebut the presumption that the jury followed the court’s instruction. See
Wood, 307 Mich App at 506; Seals, 285 Mich App at 22. Accordingly, defendant fails to
establish plain error affecting his substantial rights. See Carines, 460 Mich at 763.

                       C. APPEALING TO A SENSE OF CIVIC DUTY

       “[I]t is improper for a prosecutor to appeal to the jury’s civic duty by injecting issues
broader than guilt or innocence or encouraging jurors to suspend their powers of judgment.”
Thomas, 260 Mich App at 455-456. It is proper, however, for a prosecutor to ask a jury to
convict a defendant on the basis of evidence produced at trial. People v Bahoda, 448 Mich 261,
284-285; 531 NW2d 659 (1995).

        Defendant argues that the prosecutor made an improper civic-duty appeal when he urged
the jury to find defendant guilty on the basis of a belief in responsible gun ownership. This
Court, however, does not review a prosecutor’s comments in isolation, but evaluates them in
context and in light of the arguments and evidence. See Seals, 285 Mich App at 22.

        Throughout the case, the prosecutor employed the themes of accountability and taking
responsibility for one’s actions, as did defense counsel. Thus, the prosecutor was not
encouraging the jury to convict defendant based on the abstract principles that he was generally
an irresponsible gun owner and that the jury should encourage responsible gun ownership
through a guilty verdict. Rather, the prosecutor was urging the jurors to use their reason and
common sense to find beyond a reasonable doubt that defendant committed the charged offenses,
notwithstanding the fact that he possessed a valid CPL. His argument was specifically premised
on the video, the testimony, and the reasonable inference that defendant acted as the aggressor,
rather than in self-defense, on that particular occasion. See Bahoda, 448 Mich at 284-285.
Accordingly, the prosecutor did not make an improper civic-duty argument because he neither
encouraged the jurors to suspend their powers of judgment nor injected issues broader than
defendant’s guilt or innocence. See Thomas, 260 Mich App at 455-456.

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        Furthermore, as with the other comments of which defendant complains, the trial court’s
instructions cured any potential prejudicial effect. See Seals, 285 Mich App at 22. The trial
judge instructed the jurors that they were to rely solely on the evidence in making their
determination of guilt, that the attorneys’ statements and arguments were not evidence, that they
were to employ their own reason and common sense, and that they were not to be swayed by bias
or prejudice. Defendant contends, without support, that these instructions were insufficient to
cure the prejudicial effect of the prosecutor’s statements, but he again fails to rebut the
presumption that the jury indeed relied upon the instructions. See Wood, 307 Mich App at 506.
Consequently, defendant again fails to establish plain error affecting his substantial rights. See
Carines, 460 Mich at 763.

                            II. SUFFICIENCY OF THE EVIDENCE

       Defendant does not contend that the prosecution failed to prove beyond a reasonable
doubt the elements of the offenses with which he was charged, but, instead, that the prosecution
presented insufficient evidence to refute his self-defense claim. We disagree.

        We review de novo a challenge to the sufficiency of the evidence in a jury trial, viewing
the evidence in the light most favorable to the prosecution to determine whether the trier of fact
could have found that the prosecution proved beyond a reasonable doubt the essential elements
of the crime. Gaines, 306 Mich App at 296. Moreover, this Court will not interfere with the
fact-finder’s role of determining the weight of evidence or the credibility of witnesses. People v
Eisen, 296 Mich App 326, 331; 820 NW2d 229 (2012).

        At common law, self-defense has three elements: (1) the defendant honestly and
reasonably believed that he or she was in imminent danger; (2) the danger was serious bodily
harm, a sexual assault, or death; and (3) the defendant honestly and reasonably believed that his
or her actions were necessary to prevent the imminent danger. People v Heflin, 434 Mich 482,
502, 508-509; 456 NW2d 10 (1990); People v Guarjado, 300 Mich App 26, 35-36; 832 NW2d
409 (2013). In a self-defense context, this Court has held that reasonableness “depends on what
an ordinarily prudent and intelligent person would do on the basis of the perceptions of the
actor.” People v Orlewicz, 293 Mich App 96, 102; 809 NW2d 194 (2011).

       The Self–Defense Act, MCL 780.971 et seq., “codified the circumstances in which a
person may use self-defense.” Guarjado, 300 Mich App at 35 (citation and quotation marks
omitted). MCL 780.972(2), which applies to the use of nondeadly force in self-defense,
provides:

       An individual who has not or is not engaged in the commission of a crime at the
       time he or she uses force other than deadly force may use force other than deadly
       force against another individual anywhere he or she has the legal right to be with
       no duty to retreat if he or she honestly and reasonably believes that the use of that
       force is necessary to defend himself or herself or another individual from the
       imminent unlawful use of force by another individual.

A defendant charged with felony-firearm may raise self-defense under the SDA. Guarjado, 300
Mich App at 40.

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        A person who uses excessive force or acts as the initial aggressor does not act in
justifiable self-defense. People v Dupree, 486 Mich 693, 707; 788 NW2d 399 (2010); see also
Guarjado, 300 Mich App at 35. An aggressor may still claim self-defense if he or she
“withdraws from any further encounter with the victim and communicates such withdrawal to
the victim.” People v Kemp, 202 Mich App 318, 323; 508 NW2d 184 (1993), abrogated on other
grounds by People v Reese, 491 Mich 127 (2012). Once a defendant claims that he or she acted
in self-defense, the prosecution bears the burden of disproving the defense beyond a reasonable
doubt. People v Fortson, 202 Mich App 13, 20; 507 NW2d 763 (1993).

        Defendant testified on cross-examination that he feared serious injury or death when
Mellin struck an alleged martial arts pose. The surveillance video reveals, however, that
Mellin’s gestures appeared to be more bizarre or humorous than threatening or indicative of a
background in any known form of martial art. Mellin never touched defendant, nor did he raise
his hands, other than to hit himself emphatically in the chest. And the only time that Mellin took
a step toward defendant was immediately after defendant hit him in the face. Additionally, the
video shows that Mellin was almost completely outside when defendant took several steps
toward him and punched him. And despite his alleged fear, defendant twice turned away to talk
to other onlookers, even after hitting and pulling the gun on Mellin. Mellin may have been
cursing at defendant and challenging him to fight throughout the encounter, but the video
evidence belies defendant’s claim that he honestly and reasonably feared serious injury or death
at Mellin’s hands. Thus, the jury could reasonably have concluded that he did not act in self-
defense. See MCL 780.972(2); Guarjado, 300 Mich App at 35.

        Furthermore, defendant himself testified that he pulled the gun in an attempt to get Mellin
to move away from the door so that defendant could leave the situation. But Mellin was only
standing in front of one of the gas station’s doors, leaving another available, and defendant’s
testimony that he repeatedly asked Mellin to “move from in front of the door, let me out” seems
unlikely, given that defendant had not yet paid for the drink he held in his hand. Defendant
further testified that he punched Mellin “[t]o try to get him off balance and get out of the gas
station. . . . To remove him from in front of the door. I figured if I got him off balance I can get
out of the gas station cause he wasn’t letting anyone out.” Yet when defendant hit Mellin, the
next thing he did was step further into the store and pull out his gun. And after pushing the gun
into Mellin’s face, defendant still chose not to exit, but turned away from Mellin to talk to
another customer and then eventually paid for his drink. Mellin left the gas station first.
Defendant also testified that he did not know what Mellin might do after the latter failed to back
down when defendant showed him the gun, that he intended to make Mellin think he would
shoot him if Mellin failed to move away from the door, and that he pulled the gun out to defuse
the situation. Even if the jury credited all of these explanations from defendant, none of them
speaks to an honest and reasonable fear of imminent death or serious bodily harm. Guarjado,
300 Mich App at 35.

        Moreover, the jury could have concluded that defendant acted as the initial aggressor in
the encounter. Mellin may have initiated contact by brushing past defendant in the gas station—
which led to their argument—but the surveillance video shows that the contact was extremely
slight. Mellin also took clear efforts to get out of defendant’s way when defendant first entered
the gas station and walked to the drink cooler, then again when defendant moved past Mellin to
stand in line. Given that defendant stepped toward Mellin and hit him in the face when Mellin

                                                -6-
was already partly outside the station door, the jury could reasonably have concluded that
defendant was the aggressor, and there is no evidence suggesting that defendant withdrew and
notified Mellin of the withdrawal. See Dupree, 486 Mich at 707; Kemp, 202 Mich App at 323.

        The jurors heard testimony from defendant and Mellin, and they watched the video
numerous times throughout the trial. The trial court also instructed them on self-defense, and we
presume that they followed their instructions and properly considered the defense. People v
Abraham, 256 Mich App 265, 278-279; 662 NW2d 836 (2003). Having considered all of the
evidence, the jury simply found the prosecution’s version more credible than defendant’s, and
we will not interfere in the jury’s role of determining witness credibility. Eisen, 296 Mich App
at 331. Accordingly, viewed in a light most favorable to the prosecution, ample evidence existed
to prove beyond a reasonable doubt that defendant failed to act in self-defense. See Gaines, 306
Mich App at 296; Fortson, 202 Mich App at 20.

       Affirmed.


                                                           /s/ Stephen L. Borrello
                                                           /s/ Kathleen Jansen
                                                           /s/ Donald S. Owens




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