                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 August 28, 2018
              Plaintiff-Appellee,

v                                                                No. 334746
                                                                 Wayne Circuit Court
DEVONTA MALIK LOVE,                                              LC No. 15-007627-02-FJ

              Defendant-Appellant


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                                No. 334958
                                                                 Wayne Circuit Court
TYJUAN DAMARIOUS-ROBERT MOORE,                                   LC No. 15-007627-01-FC

              Defendant-Appellant


Before: CAVANAGH, PJ., and STEPHENS and SWARTZLE, JJ.

PER CURIAM.

       Defendants appeal as of right their bench trial convictions of second degree murder, MCL
750.317 and felony firearm, MCL 750.227b. Defendant Love was sentenced to 6-15 years for
the murder charge and the mandatory two years for the felony firearm charge. Defendant Moore
was sentenced to 9-15 years for the murder charge and the mandatory 2 years for the felony
firearm charge. In both docket numbers 33476 and 334958, we affirm.

                                     I. BACKGROUND

        Defendants’ convictions arise from the shooting death of Frederick Ricks in the city of
Detroit between 4:43 and 5:00 a.m. on August 16, 2015. The victim was shot while riding in a
van being driven by Courtney Morrison as they approached the intersection of Westfield and
Stout. Upon crossing the intersection Morrison heard gunshots and the back window of the van
shattered. She did not see who fired the shots or any other cars on the road so she continued
down Westfield making first a right turn onto Burt Road, and then a left through the alley. The

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victim initially told her he was okay but later said that he had been shot in the leg. He then told
Morrison to take him home, which was a few blocks away at 9378 Trinity instead of to the
hospital. Morrison complied and the victim ultimately bled to death in the van due to the
gunshot wound to his calf that went through two arteries. There was a path of blood from the
van, down the driveway, northbound onto Trinity to west of Burt Road showing where the victim
had started to bleed out on Burt Road. The police had followed this blood trail to the home on
Trinity.

        The police theorized that the shots that killed Mr. Ricks were fired by someone at the
home of James Bosley located at 9312 Stout Street sometime between 4:43 and 5:00 a.m. The
Stout address was between three and six blocks away from the victim’s home depending on the
route taken. Around 4:43 a.m. the police received an anonymous call that shots had been fired
from the area of Westfield and Stout Streets. Upon arriving at the 9312 Stout address, they
recovered guns hidden in the drop ceiling of the basement and one under a mattress upon which
Bosley and his fiancée, Deanna Bridges had been sleeping. The police also located a bullet
riddled minivan across the street in front of the house at 9303 Stout. Bosley and Bridges were
taken into custody for interrogation and later released. Bosley subsequently testified at trial.

         At trial, Bosley testified that earlier on the evening of August 15th, he and some of his
acquaintances and family members filmed a rap video at his house. In the video young men,
including both defendants, took turns passing guns around. On that same day there was also a
fund-raising event held at the house to raise money to pay for the funeral expenses of Bosley’s
cousin who had recently been killed in a car accident. Bosley’s brother was the driver in the
fatal accident. Bosley indicated that due to the circumstances surrounding his cousin’s death
someone had recently shot at the house on Stout Street a few days prior to the video shoot. After
the video shoot ended Bosley and his fiancée went down in the basement and went to sleep. He
testified that he had taken three or four sleeping pills prior to going to sleep. He was awakened
sometime later by the defendants coming downstairs. According to Bosley, defendant Love was
in possession of a revolver when he came downstairs and made the statement “I let a couple go.”
Defendant Moore was in possession of an AK assault rifle type of weapon that he referred to as a
“Chopper” and made the statement “I banged that ni**er.” Both defendants then went to the
other side of the basement and Bosley went back to sleep. He stated that he was awakened later
that morning by someone telling him to wake up because the house was surrounded by police.
He and his fiancée went outside and were taken into custody. Bosley claimed that it was not
until he arrived at the police department that he found out that somebody at his house was
accused of shooting at a van resulting in a death. Bridges asserted her Fifth Amendment Right
not to testify at trial and the trial court admitted her preliminary examination testimony. The
court, also allowed the parties to use her statement pursuant to the investigatory subpoena to
impeach that exam testimony which they did.

       Officer Erik Peterson testified that when he arrived at the Trinity address around 5:15
a.m. he discovered bullet holes on the front passenger side of the Town and Country van in
which the victim had been found. He also indicated that he did not find any weapons inside the
van but that he had located a blood trail from Trinity to west of Burt Road.

       Forensic evidence was also presented. Forensic technician, William Creer, testified that
he found three projectile impacts and one strike mark on the passenger-side door of the victim’s

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vehicle at the Trinity address. At the Stout address, Creer testified that he found three 9mm
Aguilar shell casings and a 38 Winchester shell casing near the porch, a copper shell casing in
the street, and a box of live 38 mm auto PMC cartridges. He also found one 9mm Star SA gun
under the mattress in the basement and a 9mm, a 38 caliber, and a long gun with black electrical
tape inside the drop ceiling in the basement. Forensic scientist, Brian Grabowski, testified that
he examined the seized firearms and the recovered casings and the tests were inconclusive as to
whether the guns recovered fired into the van.

        At the close of the prosecutor’s proofs and after the denial of both defendants’ motions
for directed verdict the defense rested. The parties asked the court to consider lesser offenses
which it agreed to do. On June 29, 2016 the trial court returned a guilty verdict for both
defendants and defendant Love was sentenced on July 29, 2016. Defendant Moore filed a
motion for new trial based upon an affidavit from Bosley recanting his testimony stating that it
was not accurate because the police pressured him into testifying. The trial court denied the
motion and defendant Moore was sentenced on August 24, 2016. Both defendants now appeal as
of right.

                                 II. INSUFFICIENT EVIDENCE

        In docket number 33476, defendant Love seeks reversal of his conviction on the grounds
that there was insufficient evidence upon which to convict him of second degree murder and
felony firearm under an aiding and abetting theory because the prosecution failed to both provide
sufficient evidence that the victim was killed by anyone at the 9312 Stout address or that he
aided and abetted in that crime. In docket number 334958, defendant Moore seeks reversal of
his conviction on the ground that the trial court based its finding that defendant aided and abetted
in second degree murder on circumstantial evidence. We reject both arguments.

        This Court reviews a claim of insufficient evidence de novo, in the light most favorable
to the prosecution; the test being whether a rational trier of fact could have found that the
essential elements of the crime were proven beyond a reasonable doubt. People v Wolfe, 440
Mich 508, 515; 489 NW2d 748 amended on other grounds 441 Mich 1201 (1992).

        Contrary to defendants’ arguments, sufficient evidence was presented to convict both
defendants of second degree murder and felony firearm under an aiding and abetting theory.
Second degree murder requires proof that: (1) a death occurred, (2) the death was caused by an
act of the defendant, (3) the defendant acted with malice, and (4) the defendant did not have
lawful justification or excuse for causing the death. People v Smith, 478 Mich 64, 70; 731
NW2d 411 (2007). “To support a finding that a defendant aided and abetted a crime, the
prosecutor must show that: (1) the crime charged was committed by the defendant or some other
person, (2) the defendant performed acts or gave encouragement that assisted the commission of
the crime, and (3) the defendant intended the commission of the crime or had knowledge that the
principal intended its commission at the time he gave aid and encouragement.” People v Turner,
213 Mich App 558, 568-569; 540 NW2d 728 (1995). “An aider and abettor's state of mind may
be inferred from all the facts and circumstances.” Id.

       First, there was sufficient evidence for a trier of fact to conclude that the shots fired at the
victim were fired from the house at 9312 Stout at a time when both defendant Love and

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defendant Moore were present at the home. The physical evidence supported a finding that shots
were fired within the Stout household and that those shots were from the weapons possessed by
the two defendants at a time contemporaneous to the fatal shots. While there was no direct
evidence as to which weapon caused the death, the trier of fact could reasonably infer that one of
the guns fired from within the house caused that death and both defendants participated for
whatever reason in releasing the barrage of fire which resulted in the death.

        There was competent testimony presented from Bosley that upon entering the basement,
defendant Love was in possession of a revolver and made an admission that “I let a couple go”
shortly after shots were heard. Testimony was also presented from Bosley that defendant Moore
also came into the basement immediately after shots were heard in possession of an assault rifle
he referred to as a “Chopper ” and made an admission that he “banged that ni**er.” This was
buttressed by the video played for the court, shot earlier in the evening on the 15th showing both
defendants in possession of a revolver and an assault rifle respectively. The assault rifle
defendant Moore was holding in the video had the clips taped together. The police later
recovered three guns, one being a revolver and one being described as an AK-47 type rifle with
the clips taped together, hidden in the drop ceiling of the basement. There was also testimony
from Morrison placing the van in proximity to Bosley’s Stout address at the time of the weapons
being fired. Specifically Morrison testified that she heard shots and then the back of her window
breaking as she was approaching the intersection of Westfield and Stout. The court found this
testimony to be credible.

        Additionally, there was significant physical evidence presented to the court. The court,
noted the fact that the victim was shot near Westfield and Stout and started to bleed out on Burt
Road as evidenced by the blood trail from Burt leading to the house on Trinity. There were two
spent thirty-eight caliber casings found just north of the porch on Stout. A box of thirty-eight
caliber ammunition that could be fired from a revolver was also found on the front porch of the
house suggesting that a revolver was involved in the shooting. Defendant Moore’s gun was later
identified as a Zastava MP 92. One of the clips of the Zastava MP 92 was empty, and a clip
holds 25 bullets. Twenty three shell casings were recovered from the front porch of the house on
Stout and one shell casing was recovered from a Chevy Uplander parked across the street.
        When viewed in the light most favorable to the prosecution, there was sufficient evidence
to support that all of the essential elements of the crime were proven beyond a reasonable doubt.

                                   III. DOCKET NO. 334958

        In docket number 334958, defendant Moore argues that the verdict was against the great
weight of the evidence because Bosley’s testimony was not credible due to his consumption of
sleeping pills on the night of the shooting. Additionally, he argues that he is entitled to a new
trial or at least an evidentiary hearing based on Bosley’s recantation of his testimony. We
disagree.

                          A. GREAT WEIGHT OF THE EVIDENCE

        In a bench trial, to determine if the verdict was against the great weight of the evidence,
we first review the court’s findings of fact for clear error. See Ambs v Kalamazoo Co Rd Comm,
255 Mich App 637, 651; 662 NW2d 424 (2003). A finding is clearly erroneous if the reviewing

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court is left with a definite and firm conviction that a mistake was made. People v Allen, 295
Mich App 277, 281; 813 NW2d 806 (2011). The determination of whether a verdict is against
the great weight of evidence requires review of the whole body of proofs. People v Herbert, 444
Mich 466, 475; 511 NW2d 654 (1993), overruled on other grounds by People v Lemmon, 456
Mich 625 (1998). A verdict is against the great weight of evidence if “the evidence
preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the
verdict to stand.” People v Lacalamita, 286 Mich App 467, 469; 780 NW2d 311 (2009). If the
evidence conflicts, the issue of credibility ordinarily should be left for the trier of fact. Lemmon,
456 Mich at 642-643.

         Defendant’s argument requires us to find that Bosley’s testimony was unbelievable. We
acknowledge that Bosley’s testimony had inconsistencies. We also agree that Bosley’s ability to
accurately recount the events was impaired by his consumption of sleeping aides. However,
“conflicting testimony, even when impeached to some extent, is an insufficient ground for
granting a new trial” absent exceptional circumstances, as where the testimony contradicts
indisputable physical facts or laws, the testimony is patently incredible or defies physical
realities, the testimony is material and is so inherently implausible that it could not be believed
by a reasonable juror, or the testimony has been seriously impeached and the case is marked by
uncertainties and discrepancies. Id. at 643-644, 647.

         As noted above, the trial court found Bosley’s statements pertaining to what defendant
Moore said in the basement to be credible. The court found that his testimony was supported by
the physical evidence found at the scene, such as the bullet holes in the minivan parked across
the street and the shell casings found outside the house. The trial court was entitled to make the
determination that Bosley’s testimony was credible. Credibility of a witness is a matter for the
trier of fact to ascertain. Id. at 642-643. This Court will not resolve it anew.

                               B. MOTION FOR A NEW TRIAL

        This Court reviews the denial of a motion for a new trial for an abuse of discretion.
People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). “An abuse of discretion occurs
when the trial court renders a decision falling outside the range of principled decisions.” People
v Rao, 491 Mich 271, 279; 815 NW2d 105 (2012). Similarly, the decision “to grant a new trial
on the basis of recanting testimony is a decision committed to trial court discretion.” People v
Canter, 197 Mich App 550, 560; 496 NW2d 336 (1992). “In reviewing the trial court’s decision,
due regard must be given to the trial court’s superior opportunity to appraise the credibility of the
recanting witness and other trial witnesses.” Id.

         Traditionally, this Court has been reluctant to grant new trials on the basis of newly
discovered evidence. People v Grissom, 492 Mich 296, 312; 821 NW2d 50 (2012). “Where
newly discovered evidence takes the form of recantation testimony, it is traditionally regarded as
suspect and untrustworthy.” Canter, supra at 559. The trial court declined to grant defendant’s
motion for new trial making a credibility determination that the complainant’s subsequent
recanting affidavit was unbelievable due to the circumstances of the recantation and it not being
newly discovered evidence. There was record evidence that the defendant contacted Bosley after
the trial through a three way call and told him that he knew the police pressured him to testify. A
few days later, defendant’s mother and father appeared at Bosley’s house unannounced and told

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him to come with them in their car. They then drove him to a different location and had him sign
an affidavit recanting his trial testimony. Once Bosley returned home he called the police officer
in charge and stated that he was “forced to do that,” referring to signing the recantation. When
the police officer asked if he was in fear for his safety Bosley stated “Yeah, because I’ve been
receiving threats, and she just popped up at my house.”

        Accordingly it was not an abuse of discretion for the trial court to make the determination
that the complainant’s trial testimony was more credible than his statements contained in the
recanting affidavit. This Court must defer to the trial court’s superior ability to assess the
credibility of the witnesses testifying before it. Canter, supra at 560.

Affirmed.

                                                            /s/ Mark J. Cavanagh
                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Brock A. Swartzle




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