                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    October 14, 2014
               Plaintiff-Appellee,

v                                                                   No. 315947
                                                                    Wayne Circuit Court
NIKKO CARTENUS FOREMAN,                                             LC No. 12-010359-FC

               Defendant-Appellant.


Before: STEPHENS, P.J., and TALBOT and BECKERING, JJ.

PER CURIAM.

         After a jury trial, defendant was convicted of first-degree murder, MCL 750.316; and
possession of a firearm during the commission of a felony, MCL 750.227b. He was sentenced to
life in prison without parole for his first-degree murder conviction; and two years’ imprisonment
for his felony-firearm conviction. Defendant appeals as of right. We affirm.

       Defendant first argues that the prosecution failed to present sufficient evidence to convict
him of first-degree murder. This Court reviews a challenge to the sufficiency of the evidence in
a criminal case de novo. People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010).
The test for determining such a challenge is, “whether the evidence, viewed in a light most
favorable to the [prosecution], would warrant a reasonable juror in finding guilt beyond a
reasonable doubt.” People v Nowack, 462 Mich 392, 399; 614 NW2d 78 (2000).

       The elements of first-degree murder are (1) an intentional killing of a human being (2)
with premeditation and deliberation. People v Hoffmeister, 394 Mich 155, 158; 229 NW2d 305
(1975); People v DeLisle, 202 Mich App 658, 660; 509 NW2d 885 (1993). Defendant’s sole
argument on appeal is that the prosecution failed to produce sufficient evidence of premeditation
and deliberation.

       The premeditation and deliberation element requires “sufficient time to allow the
defendant to take a second look.” People v Jackson, 292 Mich App 583, 588; 808 NW2d 541
(2011) (citation omitted). The finder of fact may find the following factors persuasive: “(1) the
prior relationship of the parties; (2) the defendant's actions before the killing; (3) the
circumstances of the killing itself; and (4) the defendant's conduct after the homicide.” People v
Anderson, 209 Mich App 527, 537; 531 NW2d 780 (1995).



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       A couple of weeks before the shooting, which occurred on September 27, 2012,
defendant and Derek Johnson, the victim’s brother, were in an altercation over a drug deal in
which Derek took marijuana from defendant and did not pay. According to defendant’s
statement made to police, “[Derek] robbed me. And everybody in the neighborhood said he was
looking for me. And I felt threatened by him.”

       On September 27, 2012, defendant thought he saw Derek at a BP gas station. Defendant
pulled into the gas station and went inside the store. Defendant got in-line behind Derek’s
brother, Jeremy Johnson, whom he believed to be Derek. Defendant removed a .38 caliber
revolver from his clothing and shot Jeremy six times, including a fatal shot to the head.
Defendant subsequently admitted to the shooting and claimed that Derek, rather than Jeremy,
was the intended target.

        Based on the prior altercation between Derek and defendant; the lapse of time between
the altercation and the shooting; the statements made to police, including that he thought he saw
Derek in the store and went inside; and the dangerous weapon used, there was sufficient
evidence proving that defendant premeditated and deliberated before shooting Jeremy. See
Anderson, 209 Mich App at 537. Accordingly, defendant’s sufficiency of the evidence challenge
as to his first-degree murder conviction fails.

        Defendant also makes the unpreserved argument that the jury’s verdict is against the
great weight of the evidence. This issue is abandoned. Defendant cites the law for his challenge,
but he fails to explain, rationalize, or assert a basis for his claims. See People v Kevorkian, 248
Mich App 373, 389; 639 NW2d 291, 303 (2001). Nevertheless, “when a party fails to preserve a
great-weight issue for appeal, an appellate court will look for ‘plain error affecting the
defendant’s substantial rights.’ ” People v Cameron, 291 Mich App 599, 616-617; 806 NW2d
371 (2011), quoting Musser, 259 Mich App at 218. To avoid forfeiture under the plain error
standard, a defendant must establish that: (1) an error occurred, (2) the error was plain (i.e., clear
or obvious); and (3) the plain error affected the defendant’s substantial rights. People v Carines,
460 Mich 750, 763-764; 597 NW2d 130 (1999).

        This is not a case where the evidence preponderates so heavily against the verdict that it
would be a miscarriage of justice to allow it to stand. Cameron, 291 Mich App at 616-617.
Rather, defendant relies on the same reasoning employed for his argument that there was
insufficient evidence to sustain his convictions. We find that the evidence strongly supports the
verdict. Defendant has not demonstrated plain error.

       Defendant also argues that one of the prosecution’s statements, during closing argument,
denied defendant his due process right to a fair trial because it improperly appealed to juror
sympathy. Defendant did not object to the challenged statement or request a curative instruction,
and therefore, the issue is unpreserved. See People v Brown, 279 Mich App 116, 134; 755
NW2d 664 (2008).

       The test for prosecutorial misconduct is generally whether defendant was denied a fair
and impartial trial. People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). Unpreserved
claims of prosecutorial misconduct, however, are reviewed for plain error. Carines, 460 Mich at
763. It is improper for a prosecutor to make blatant appeals to the jury’s sympathy. People v

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Mayhew, 236 Mich App 112, 123; 600 NW2d 370 (1999). The prosecution improperly appeals
to the jury’s sympathy when it repeatedly attempts to have the jury sympathize with the victim.
See People v Unger, 278 Mich App 210, 237; 749 NW2d 272 (2008); see also People v
Dalessandro, 165 Mich App 569, 581; 419 NW2d 609 (1988). In contrast, isolated statements
do not appeal to the jury’s sympathy, especially when the trial court instructs the jury not to be
influenced by sympathy or prejudice. See People v Watson, 245 Mich App 572, 591; 629 NW2d
411 (2001); see also Mayhew, 236 Mich App at 123. Furthermore, where a timely objection or a
request for a curative instruction could have alleviated any prejudicial effect the improper
prosecutorial statement may have had, there is no error requiring reversal. Unger, 278 Mich App
at 238.

       In this case, defendant argues that the prosecution appealed to the jury’s sympathy by
making the statement that, “this was a brutal murder. It was conducted brutally. It was
conducted brazingly [sic]. And it left the 22-year-old son, father, and brother dead, on the floor
of the BP Gas Station, in the City of Detroit.” The prosecution made this statement once. The
statement was based on evidence and reasonable inferences drawn therefrom.1 And while the
statement used dramatic language, it was permissible. People v Ullah, 216 Mich App 669, 678-
679; 550 NW2d 568 (1996). Furthermore, the trial court specifically instructed the jury, “you
must not let sympathy or prejudice influence your decision.” On the record, we find no plain
error because the statement was not an improper appeal to the jury’s sympathy for the victim.
Watson, 245 Mich App at 591.

       Affirmed.

                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Michael J. Talbot
                                                            /s/ Jane M. Beckering




1
  The record never established that Jeremy was a father. Thus, the prosecutor’s statement in that
respect argued facts not in evidence, which is improper. Dobek, 274 Mich App at 66. Defendant
does not argue that this error constitutes plain error requiring reversal.


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