            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    September 17, 2019
               Plaintiff-Appellee,

v                                                                   No. 344701
                                                                    Kalamazoo Circuit Court
JERMAL DONTE CLARK,                                                 LC No. 2013-001512-FC

               Defendant-Appellant.


Before: MURRAY, C.J., and METER and FORT HOOD, JJ.

PER CURIAM.

        Defendant was convicted in a bench trial of guilty but mentally ill, MCL 768.36, of first-
degree premeditated murder, MCL 750.316. He was sentenced as a fourth habitual offender,
MCL 769.12, to life in prison without the possibility of parole. The trial focused on the defense
of legal insanity, MCL 768.21a, and entailed only stipulated facts and expert testimony from Dr.
Martha Smith, called by the defense, and Dr. Jeffrey Wendt, called by the prosecution. The trial
court found that defendant had a substantial capacity to appreciate the wrongfulness of his
conduct, and thus failed to meet his burden of showing that he was legally insane. On direct
appeal, this Court vacated and remanded “for a finding by the trial court regarding whether
defendant established by a preponderance of the evidence that he lacked the substantial capacity
to conform his conduct to the requirements of the law.” People v Clark, unpublished per curiam
opinion of the Court of Appeals, issued August 10, 2017 (Docket No. 332297), p 3. On remand, the
trial court affirmed defendant’s conviction, finding that he failed to establish by a preponderance
of the evidence that he lacked the substantial capacity to conform his conduct to the requirements
of the law. Defendant appeals as of right. We affirm.

       Defendant was previously diagnosed with schizophrenia and bipolar disorder, and
suffered from symptoms of acute psychosis, including hallucinations and delusional beliefs.
Despite being prescribed medications to treat the disease, defendant was unmedicated the month
leading up to the offense. On October 6, 2013, defendant lived with his brother, Damien Clark,
Damien’s girlfriend, Taneasha Sanders, and Taneasha’s mother, Rita Williams. Several times
throughout that day, defendant was found resting his hands on, picking up, and holding kitchen
knives. Clark and Sanders redirected defendant’s behavior away from the knives by telling him


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to stop, or to put them down. Later that day, after Clark and Sanders left for the Kalamazoo
Transportation Center, defendant stabbed and killed Williams. After the murder, defendant
cleaned and put away the knife, and dragged Williams’s body to the basement. He then walked
to the Kalamazoo Transportation Center, and purchased a bus ticket to Chicago.

       Defendant argues that a preponderance of the evidence demonstrates that he lacked the
substantial capacity, because of his mental illness, to conform his conduct to the requirements of
the law, and that the trial court clearly erred by failing to accept Dr. Smith’s opinion that
defendant was legally insane at the time of the offense. In the alternative, defendant asserts that
his conviction was against the great weight of the evidence regarding insanity.

        “We review de novo a challenge to the sufficiency of the evidence in a bench trial,
viewing the evidence in the light most favorable to the prosecution[.]” People v Ventura, 316
Mich App 671, 678; 894 NW2d 108 (2016). In actions tried without a jury, this Court reviews a
trial court’s factual findings for clear error, and its conclusions of law de novo. MCR 2.613(C);
People v Connor, 209 Mich App 419, 423; 531 NW2d 734 (1995). “A finding is clearly
erroneous when, although there is evidence to support it, the reviewing court is left with a
definite and firm conviction that a mistake has been made.” People v Lanzo Constr Co, 272
Mich App 470, 473; 726 NW2d 746 (2006).

        To be determined legally insane, under MCL 768.21a(1), a person must first establish the
existence of mental illness at the time of the offense. However, this alone is not enough. The
person must, because of his mental illness, lack the substantial capacity, at the time of the
offense, to either (1) appreciate the nature and quality or the wrongfulness of the conduct at
issue, or (2) conform his conduct to the requirements of the law. MCL 768.12a(1). “The
defendant has the burden of proving the defense of insanity by a preponderance of the evidence.”
MCL 768.21a(3); see also People v Fackelman, 489 Mich 515, 544; 802 NW2d 552 (2011).

        The pertinent question on appeal is whether defendant proved, by a preponderance of the
evidence, the second element of legal insanity, specifically, whether he lacked the substantial
capacity to conform his conduct to the requirements of the law. MCL 768.21a(1), (3). Factors
that weigh against a finding of the second element include, but are not limited to: (1) defendant’s
appreciation of the nature of his conduct and his understanding that the conduct was criminal; (2)
the ability to control his own behavior; and (3) his ability to restrain himself until the threat of
immediate detection has passed. People v Jackson, 245 Mich App 17, 24-26; 627 NW2d 11
(2001).

       The trial court did not clearly err in ruling that defendant presented insufficient evidence
that he lacked the substantial capacity to conform his conduct to the requirements of the law
because a preponderance of the evidence demonstrates that he “appreciated the nature of his
conduct, as well as an understanding that such conduct is criminal.” Id. at 24. This Court has
said that expert testimony that a defendant would not have committed a crime had an armed
deputy been in the room demonstrates an appreciation of his conduct and an understanding that
such conduct is criminal. Id. at 24-25. Dr. Wendt testified at trial that defendant would not have
committed the murder had a police officer been in the home with him and Williams on
October 6, 2013. Dr. Wendt’s theory that defendant could conform his conduct to the
requirements of the law is also supported by the evidence that defendant actively resisted

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command hallucinations on the morning of the offense, and later surrendered to officers of his
own accord. The trial court may infer, from defendant’s appreciation of the criminality of his
actions, that he also understood the widespread societal prohibition against such immoral or
wrongful conduct. Id. at 24-25.

        The evidence further supports the conclusion that defendant had the ability to control his
behavior in front of others. Defendant acknowledged, during an interview with Dr. Wendt, that
he has a choice to follow the command hallucinations. And he resisted certain command
hallucinations on the day of the murder. Voices allegedly commanded defendant to cut
Williams’s head off, but he did not. Defendant explained to Dr. Wendt that he did not do so
because he thought it was too outrageous. Dr. Wendt opined that if defendant’s actions were
directed exclusively by the command hallucinations, as the defense argues, then his conduct
would have entirely conformed to those hallucinations.

         Additionally, defendant’s “declaration that he could control himself in front of others
evidences a level of capacity to refrain that rises to and beyond being substantial.” Id. at 25.
Defendant’s medical history supports the finding that defendant could refrain from following
what his hallucinations commanded. In the past, voices commanded defendant to kill himself, to
shoot himself, to jump off a bridge, and to attack a fellow inmate at the jail, but resisted each
time. In the vast majority of recorded command hallucinations, defendant chose to resist, and
took steps to stop them. In one instance, he called 911 for help, and in another, he voluntarily
committed himself to the hospital. Dr. Wendt asked defendant why a command to murder
Williams was any different from those directed at him, and defendant answered, “Well, I guess
‘cause it was somebody else and not me.” Dr. Wendt reasoned that defendant’s response
indicated “an analysis of the pain involved, the consequences personally, and it involves an
ability to reflect and make a decision about it in contrast to an immediate and unstoppable urge
to do what he’s told to do.” Viewed in the light most favorable to the prosecution, defendant’s
exhibited ability to make a choice proves that he had the substantial capacity to conform his
conduct to the requirements of the law.

        Finally, the evidence supports a finding that at the time of the murder, defendant had the
“ability to restrain himself until the threat of immediate detection by others had passed . . . .” Id.
That morning, defendant experienced auditory hallucinations commanding him to kill Williams,
but he initially resisted. Defendant did not act until he was alone with Williams—noting to Dr.
Wendt that he believed that his brother would have tried to stop him from killing Williams if he
was home. Dr. Wendt explained that defendant’s capacity to predict that the best time to kill
Williams was when they were alone indicates that he was able to plan what he is going to do and
when he is going to do it.

       Furthermore, defendant’s “purposeful behavior to avoid discovery only further confirms
the conclusion that defendant had an appreciable ability to stop himself when he chose to do so.”
Id. Immediately after the murder, defendant engaged in goal-oriented and organized behaviors.
Defendant cleaned the murder weapon to avoid leaving a clue, concealed Williams’s body by
moving her to the basement, and attempted to flee to a larger city where it would be harder to
find him. Defendant’s purposeful behavior demonstrated his ability to think clearly and
cohesively, and the capacity to control his conduct.


                                                 -3-
        In light of the evidence presented, we affirm the trial court’s order denying defendant’s
motion for a new trial on the basis that the verdict was against the great weight of the evidence.
The trial court did not err in concluding that defendant failed to prove by a preponderance of the
evidence that he lacked the substantial capacity to conform his conduct to the requirements of the
law, and therefore could not establish that “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).

       Affirmed.



                                                            /s/ Christopher M. Murray
                                                            /s/ Patrick M. Meter
                                                            /s/ Karen M. Fort Hood




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