                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     May 10, 2016
               Plaintiff-Appellee,

v                                                                    No. 324836
                                                                     Wayne Circuit Court
NATHAN LAVERN DUREN,                                                 LC No. 14-005911-FC

               Defendant-Appellant.


Before: BOONSTRA, P.J., and METER and BECKERING, JJ.

PER CURIAM.

        Defendant appeals by right his convictions, following a bench trial, of possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b, felon in possession
of a firearm (felon-in-possession), MCL 750.224f, and two counts of felonious assault,
MCL 750.82. The trial court sentenced him as a fourth-offense habitual offender, MCL 769.12,
to five years in prison for the felony-firearm conviction, to be served consecutive to concurrent
prison sentences of 1 to 10 years each for the felon-in-possession and felonious assault
convictions. We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

         This case arises out of the discharge of a firearm following an argument. Joseph Fleming
testified that he had a verbal altercation with a neighbor, who he primarily referred to as “Miss
Kisha,” about her using profanity around children who were staying at his house. He testified
that Kisha was on his porch swearing at the children, and that when he approached Kisha and
asked her why she was using profane language around the children, she responded: “[O]ld man,
bad mouth mother f**ker, I got something for you.” She then said that she was “going to put
eight of them, that makes sixteen, I’m going to put all of them in your bad mouth a**.” He
testified that he understood this as a threat to shoot him. He testified that Kisha went back to her
house and spoke with defendant. Fleming went inside and called the police, who responded,
stayed 15 to 20 minutes, went to Kisha’s house, and left.

        Fleming testified that, almost immediately after the police left, defendant came out of
Kisha’s house, which was across the street and a few houses away, and walked toward his house.
According to Fleming, defendant was wearing dark clothing and had a small white bag tied to his
coat, and Fleming thought there was a gun in the bag, although he never actually saw a gun.

                                                -1-
Fleming testified that defendant “told us what he was going to do,” although he did not elaborate
on the meaning of this statement. Fleming also testified that defendant said “I done been to the
penitentiary and I don’t care.” Fleming testified that defendant then walked toward a black Jeep
parked in Kisha’s driveway and went behind it, where Fleming lost sight of him. Fleming then
heard two gunshots, and recalled that he told the woman staying with him (Lakisha Beauford,
hereinafter “Beauford”), who was in the yard with her children at the time,1 to “cover her babies”
(i.e., protect her children). Fleming testified that he never actually saw defendant fire the shots,
but that the shots had come from behind the Jeep and defendant was the only one behind the Jeep
at the time, as Kisha had gone into the backyard through a gate. Fleming testified that defendant
went into Kisha’s house after the shots were fired, as did Kisha. Fleming also testified that
another man was on the porch of Kisha’s house when the shots were fired, and that when police
arrived, they handcuffed that man first, until he told police that they had the wrong man.

      Responding police officers recovered a .45 caliber handgun from a closet in Kisha’s
home and two spent .45 caliber shell casings from Kisha’s driveway. Police arrested defendant,
who was wearing all black clothing, in Kisha’s house.

        Defendant presented the testimony of a friend, Keith Holcomb, that he and defendant
were in the backyard “fixing [defendant’s] lights” when they heard the shots and went to the
front yard to see where they had come from. He also testified that he did not observe any
altercation between Fleming and Kisha. He testified that he was handcuffed by police when they
arrived, but was later released, and that he did not inform the police, either on the day of the
shooting or at any point prior to trial, that he was with defendant in the backyard when the shots
were fired.

       Defendant was charged with assault with intent to commit murder, MCL 750.83, felony-
firearm,2 felon in possession of a firearm, and two counts of felonious assault, on Fleming and
Beauford. The parties stipulated that defendant had a prior felony conviction and that his right to
possess a firearm had not been restored. At trial, the trial court also considered the lesser offense


1
  The trial transcript does not reflect Beauford’s location during the initial argument between
Kisha and Fleming. Fleming stated at one point when describing the initial argument that “Kisha
had her back to the door.” The record is unclear as to whether this refers to Beauford (whom
Fleming also called Kisha) or his neighbor Kisha; despite Fleming’s claim that he always
referred to his neighbor as “Miss Kisha”, the record reflects that he referred to her as merely
“Kisha” on one other occasion. Additionally Fleming’s testimony immediately following the
above statement concerned the actions of his neighbor Kisha, not Beauford. Although the fact
that Beauford’s children were outside during the initial argument, as well as the fact that
Beauford was outside when the shots were fired, could support the inference that Beauford was
also outside or on the porch during the argument and thus heard the threat, it is not clear from the
record that the trial court made such an inference, and we find it unnecessary to draw such an
inference in holding that the evidence against defendant was sufficient.
2
 Defendant originally was charged with carrying a dangerous weapon with unlawful intent,
MCL 750.226, but that charge was subsequently amended.


                                                -2-
of assault with intent to do great bodily harm less than murder, MCL 750.84. The trial court
found defendant not guilty of assault with intent to commit murder and assault with intent to do
great bodily harm. The trial court reasoned that “there’s been no evidence presented of where
these shots were fired to. For all we know, the shots were fired up into the air.” However, the
trial court found Fleming’s testimony credible and concluded that defendant had fired the shots,
noting that Fleming had testified that Kisha had gone to the backyard when the shots were fired
from behind the Jeep. With regard to felonious assault, the trial court concluded that there was
proof beyond a reasonable doubt that defendant, not Kisha, possessed a handgun, and that
defendant intended to create fear or apprehension in Fleming and Beauford by firing the weapon
and making threats to Fleming beforehand. The trial court cited Fleming’s testimony that
defendant told people what he was going to do and, more specifically, that he had been to the
penitentiary and “didn’t care.” The trial court thus convicted defendant of two counts of
felonious assault, and one count each of felon in possession of a firearm and felony-firearm.

       This appeal followed.

                           II. SUFFICIENCY OF THE EVIDENCE

       On appeal, defendant first argues that there was insufficient evidence to support his
convictions. We disagree. This Court reviews de novo the sufficiency of the evidence in a
bench trial. People v Lanzo Constr Co, 272 Mich App 470, 473-474; 726 NW2d 746 (2006).

       This Court will not interfere with the trier of fact’s role of determining the weight
       of the evidence or the credibility of witnesses. Circumstantial evidence and
       reasonable inferences that arise from such evidence can constitute satisfactory
       proof of the elements of the crime. All conflicts in the evidence must be resolved
       in favor of the prosecution. [People v Kanaan, 278 Mich App 594, 619; 751
       NW2d 57 (2008).]

       “The elements of felony-firearm are that the defendant possessed a firearm during the
commission or attempt to commit a felony.” People v Davis, 216 Mich App 47, 53; 549 NW2d
1 (1996). The elements of felon in possession of a firearm are (1) the defendant was in
possession of a firearm and (2) the defendant had previously been convicted of a specified
felony. MCL 750.224f; see also People v Perkins, 262 Mich App 267, 269; 686 NW2d 237
(2004), abrogated on other grounds by People v Smith-Anthony, 494 Mich 669; 837 NW2d 415
(2013). Finally, “[t]he elements of felonious assault are: (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.” People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999).

       [F]elonious assault is a specific intent crime. Thus, felonious assault requires the
       additional showing that the defendant intended to injure or intended to put the
       victim in reasonable fear or apprehension of an immediate battery. The statute
       also requires the use of a dangerous weapon in carrying out the assault. [People v
       Robinson, 145 Mich App 562, 564; 378 NW2d 551 (1985) (quotations marks and
       citations omitted).]



                                               -3-
Identity is an element of every crime. People v Yost, 278 Mich App 341, 356; 749 NW2d 753
(2008). On appeal, defendant argues that his identity as the person who had fired the gun was
not established by sufficient evidence, and also that the evidence was insufficient to show that he
had the necessary intent to injure Beauford and Fleming or put them in fear of an immediate
battery.

        There was sufficient evidence to conclude that defendant was the perpetrator of the
felonious assaults on Beauford and Fleming. Fleming testified that he was certain of his
identification of defendant as the person who walked behind the Jeep—the area where shots were
fired—at the time of the shooting. Fleming described defendant’s clothing during the shooting,
which matched the clothing defendant was wearing when he was arrested shortly thereafter.
Although defendant argues that it was dark outside and notes Fleming’s age (mid-70s) as a
reason to call the identification into question, Fleming testified that he was familiar with
defendant, who he said was a frequent visitor of Kisha’s. In any event, we will not interfere with
the trier of fact’s role of determining the weight of the evidence or the credibility of witnesses.
Kanaan, 278 Mich App at 619.

        The trial court could infer that defendant had a motive to fire the shots on behalf of
Kisha, in light of evidence that she had argued with Fleming on Fleming’s porch, issued what
Fleming took as a threat to shoot him, and spoke with defendant shortly before the shooting took
place. People v Unger, 278 Mich App 210, 223; 749 NW2d 272 (2008) (“[i]n cases in which the
proofs are circumstantial, evidence of motive is particularly relevant”). Moreover, the record
demonstrated that defendant was the only person with an opportunity to fire shots from behind
the Jeep. Defendant claims that the evidence supports the finding that Kisha was actually the
shooter, because she was involved in the earlier conflict with Fleming. As defendant notes,
Fleming’s testimony regarding Kisha’s whereabouts during the shooting was at first somewhat
confused. A careful review of the record, however, demonstrates that Fleming testified that,
before the shooting, Kisha and defendant were both outside and initially both walked behind the
Jeep. But according to Fleming, “[w]hen [he] heard the shots fired,” Kisha was walking through
her backyard and only defendant was behind the Jeep. Resolving all conflicts in evidence in
favor of the prosecution, the evidence that defendant was the shooter was sufficient to support
the element of identity. Kanaan, 278 Mich App at 619.

        Defendant also argues that he could not have been the perpetrator because Fleming did
not see him with a gun. But circumstantial evidence and reasonable inferences arising from that
evidence can be used to establish the elements of a crime. People v McRunels, 237 Mich App
168, 181; 603 NW2d 95 (1999). The trial court could infer that a .45-caliber handgun was used
during the shooting based on the .45-caliber shells recovered from the driveway. The record
demonstrates that defendant had access to a .45-caliber gun, which was recovered from Kisha’s
closet in her home, where defendant was arrested after the shooting. Additionally, even though
Fleming did not see defendant carrying a gun, the trial court could infer that defendant concealed
or obtained a gun and used it to fire the shots from behind the Jeep.

        Next, defendant argues that the prosecution failed to establish that he intended to injure
or intended to put Beauford and Fleming in reasonable fear or apprehension of an immediate
battery. “Intent, like any other fact, may be proven indirectly by inference from the conduct of
the accused and surrounding circumstances from which it logically and reasonably follows.”

                                                -4-
People v Lawton, 196 Mich App 341, 349; 492 NW2d 810 (1002). Intent can be inferred from
the use of a dangerous weapon or threats. See People v Stevens, 306 Mich App 620, 629; 858
NW2d 98 (2014). Further, because of the difficulty in proving an actor’s state of mind, minimal
circumstantial evidence of intent is sufficient. Kanaan, 278 Mich App at 622. Given the fact
that defendant had some sort of relationship with Kisha and fired the shots almost immediately
after the police left, the trial court could infer that defendant was carrying out her threats against
Fleming. This inference was further bolstered by the fact that, as he walked toward the Jeep just
before shots were fired, defendant expressed nonchalance about the possibility of being
imprisoned. Further, both Fleming and Beauford were outside the home at the time the shots
were fired; and Fleming’s testimony that he told Beauford to protect her children supports the
inference that both Fleming and Beauford could reasonably have feared an imminent battery. In
sum, the trial court could have reasonably inferred that defendant fired the gun, even into the air,
intending to injure or place Beauford and Fleming in fear and that Beauford and Fleming could
have reasonably feared an imminent battery. See Avant, 235 Mich App at 505.

        Viewing the record as a whole and resolving all conflicts in favor of the prosecution,
there was sufficient evidence for the trial court to conclude that defendant was the perpetrator in
possession of a gun and that he intended to injure the victims or put them in fear of an immediate
battery.

                           III. GREAT WEIGHT OF THE EVIDENCE

       Defendant also argues that his convictions are against the great weight of the evidence,
which he contends pointed toward Kisha’s guilt. We disagree.

        A new trial may be granted if a verdict is against the great weight of the evidence.
MCR 2.611(A)(1)(e); Domako v Rowe, 184 Mich App 137, 144; 457 NW2d 107 (1990), aff’d
438 Mich 347 (1991). Such a motion should be granted only when the evidence preponderates
heavily against the verdict and a serious miscarriage of justice would otherwise result. People v
Lemmon, 456 Mich 625, 639, 642; 576 NW2d 129 (1998); Unger, 278 Mich App at 232. Where
a challenge to the great weight of the evidence follows a bench trial, this Court examines the trial
court’s findings for clear error, giving regard to the court’s special opportunity to judge the
credibility of witnesses. MCR 2.613(C); see Phardel v State of Michigan, 120 Mich App 806,
811; 328 NW2d 108 (1982).

       As discussed previously, Kisha had a verbal altercation with Fleming and made threats;
however, defendant also made statements to Fleming that could have been interpreted as a threat.
The trial court found that only defendant, and not Kisha, was behind the Jeep when and from
where the shots were fired. We do not find that evidence that Kisha may have also possessed a
motive to fire the shots preponderates so heavily against the verdict that a new trial is required.
Lemmon, 456 Mich at 639.

       Defendant also argues that the verdict was against the great weight of the evidence
because Holcomb testified that he was with defendant at the time of the shooting and that
defendant did not possess or shoot a gun. Conflicting testimony does not render a verdict
suspect; rather, a verdict may be overturned based on the lack of credibility of witnesses only
under “exceptional circumstances” such as testimony that “contradicts indisputable facts or

                                                 -5-
laws” or “is so patently implausible it could not be believed by a reasonable juror” or is
“seriously impeached” and the case is “marked by uncertainties and discrepancies.” Lemmon,
456 Mich at 643-644, 647 (quotation marks and citations omitted). From the trial court’s
thorough recapitulation of the testimony presented at trial, it is clear that the court was aware of
and considered the differences in the evidence before finding Fleming’s testimony credible and
therefore disregarding Holcomb’s conflicting testimony, as was its prerogative.                 See
MCR 2.613(C); People v Sexton (On Remand), 461 Mich 746, 752; 609 NW2d 822 (2000). Nor
were any of the “exceptional circumstances” discussed in Lemmon implicated by Fleming’s
testimony. Lemmon, 456 Mich at 643-644, 647 (quotation marks and citations omitted). Thus,
the evidence produced at trial did not preponderate so heavily against the verdict that it would be
a miscarriage of justice to allow the verdict to stand. Lemmon, 456 Mich at 639. Accordingly,
defendant is not entitled to a new trial.

                                IV. PROSECUTORIAL ERROR3

        Defendant argues that the prosecution committed error when arguing against a directed
verdict and making statements in closing argument that were inconsistent with the record. We
disagree.

       Defendant did not object to the prosecution’s conduct below. Accordingly, defendant’s
unpreserved claim of prosecutorial error is reviewed for plain error affecting substantial rights.
People v Abraham, 256 Mich App 265, 274, 662 NW2d 836 (2003).

        This Court examines a claim of prosecutorial error to determine whether a defendant was
denied a fair and impartial trial. Abraham, 256 Mich App at 272. The prosecution is given
latitude with regard to its arguments. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659
(1995). “[Prosecutors] are free to argue the evidence and all reasonable inferences from the
evidence as it relates to their theory of the case.” Id. The prosecution may use “hard language”
or “[e]motional language” if the language does not interfere with the defendant’s right to a fair
trial and is supported by the evidence. People v Ullah, 216 Mich App 669, 678-679; 550 NW2d
568 (1996).

        Defendant first objects to the prosecution’s argument, in opposing his motion for a
directed verdict, regarding the two incidents that had brought the police to Fleming’s
neighborhood on the night of the shooting. The prosecution stated:



3
  Although defendant refers to his claim on appeal as one of “prosecutorial misconduct,” this
Court held in People v Cooper, 309 Mich App 74, 87–88; 867 NW2d 452 (2015), that the term
“prosecutorial error” is preferred over the more commonly used phrase of “prosecutorial
misconduct,” which should be reserved for only the most extreme cases when a prosecutor's
conduct violates the rules of professional conduct or constitutes illegal conduct. See also People
v Bosca, 310 Mich App 1, 25–26; 871 NW2d 307 (2015). As violation of the rules of
professional conduct or illegal conduct is not at issue here, we therefore refer to defendant’s
claim as one of prosecutorial error.


                                                -6-
       The police came to the location two different times that day. Once because of the
       argument between [Beauford] and Miss Kisha. And the second time was after the
       shots were fired.

                                             * * *

               Second, there was, it wasn’t just a matter of Miss Kisha went home [after
       the altercation on the porch]. Somebody else came out and shot. There was a
       substantial amount of commentary between Mr. Fleming and Miss Kisha, and
       then Mr. Fleming and [defendant].

               At some point there was a threat lodged against Mr. Fleming that was
       essentially, the quotation I believe was, I got something for you . . . And then it
       was after that point that the two shots were fired.

        Defendant claims that the prosecution’s argument suggested that defendant was involved
in the initial incident on Fleming’s porch. But reading the prosecution’s argument in context, the
prosecution never stated that defendant was present during that incident and in fact specifically
stated that the argument was between Fleming and Kisha. Moreover, from the trial court’s
factual findings, the court clearly understood that the initial argument on the porch did not
involve defendant.

        Defendant also claims that the prosecution’s argument attributed threats to defendant that
he did not make. Defendant claims that the prosecution’s reference to “a substantial amount of
commentary between Mr. Fleming and Miss Kisha, and then Mr. Fleming and [defendant]” was
inconsistent with the record because defendant only made one statement about being in the
penitentiary. But the prosecution was referencing the statements made by both Kisha and
defendant collectively. Considering both Kisha’s statements that caused Fleming to fear that he
would be shot, and defendant’s statement demonstrating his nonchalance regarding incarceration,
the prosecution’s argument about a “substantial amount of commentary” was not erroneous.
Moreover, defendant claims that the prosecution erroneously attributed Kisha’s threat, “I got
something for you,” to defendant. But again, the prosecution argued that both Kisha and
defendant made threats, and did not specify who made this particular threat. It was clear from
the trial court’s factual findings, however, that it understood that Kisha, not defendant, was
responsible for this threat.

      Defendant also argues that the prosecution mischaracterized the evidence regarding when
Fleming saw defendant. The prosecution argued:

       Miss Kisha then came back from across the street and said something to the
       effect, of I’ve got sixtteen [sic] for you. Or, I’ve got something for you.

               Mr. Fleming indicated that he saw [defendant] outside on his porch across
       the street when that happened. He then indicated that Kisha, defendant’s
       girlfriend, went back across the street. She and the defendant went into the house.
       The defendant came out of the house, went behind a car that was parked in the
       driveway and fired two shots at him while he was on the porch.

                                               -7-
The record demonstrates that Fleming did not testify to seeing defendant when Kisha threatened
the victims on the porch, but that Fleming saw Kisha join defendant across the street afterward.
However, even if the prosecution mischaracterized when Fleming first saw defendant, the trial
court did not rely on this mistake in rendering its verdict; in fact, it was clear that the trial court
understood that the initial altercation was between Kisha and Fleming. Accordingly, any error
did not affect defendant’s substantial rights. Abraham, 256 Mich App at 274.

        Defendant also argues that the prosecution made statements inconsistent with the record
to the effect that defendant came out of the house with a gun after being with Kisha. Defendant
claims that Fleming testified that defendant came from Kisha’s front yard. However, the
prosecution asked Fleming, “Where did he, did you see where he came out of?” Fleming
responded, “He came out of the house.” And when asked to specify which house, Fleming
responded, “Miss Kisha [sic] house.” Therefore, the prosecution did not err in describing the
location from which defendant had come before ultimately going behind the Jeep.

       Defendant further contends that the prosecution misrepresented evidence by arguing:

       It sounds like it wasn’t a dispute that was over something important, but it
       sounded like it was a heated dispute. She goes across the street, comes back and
       tells Mr. Fleming, “I’ve got sixteen for you.” The Court can infer what it wants.
       But that sounds like a reference to, I’ve got sixteen bullets for you. The handgun
       is brought out by [defendant] and it’s shot at the direction of Mr. Fleming and the
       three kids on the porch.

Defendant claims this argument was prejudicial because Fleming did not actually see who fired
the gun. But, as discussed previously, the trier of fact could infer that defendant was the shooter,
and, again, the prosecution was free to argue all reasonable inferences from the evidence as it
related to his theory of the case. Bahoda, 448 Mich at 282. Moreover, the trial court
demonstrated no confusion regarding the testimony on this point. It cited Fleming’s testimony
that he did not see defendant with a gun, but nevertheless found that defendant was the shooter
based on the location of the gunfire and defendant’s presence behind the Jeep.

       In the alternative, defendant argues that defense counsel was ineffective for failing to
object to the prosecution’s statements that he contends constituted prosecutorial error. We
disagree. Defendant moved this Court for an evidentiary hearing regarding ineffective assistance
of counsel, which motion was denied.4 This Court’s review of defendant’s ineffective assistance
claim is therefore limited to mistakes apparent on the record. People v Davis, 250 Mich App
357, 368; 649 NW2d 94 (2002). In People v Gaines, 306 Mich App 289, 300; 856 NW2d 222
(2014), this Court stated:

              Effective assistance of counsel is presumed, and defendant bears a heavy
       burden of proving otherwise. To demonstrate ineffective assistance, defendant


4
 People v Duren, unpublished order of the Court of Appeals, entered August 20, 2015 (Docket
No. 324836).


                                                 -8-
       must show: (1) that his attorney’s performance fell below an objective standard of
       reasonableness, and (2) that this performance so prejudiced him that he was
       deprived of a fair trial. “To demonstrate prejudice, the defendant must show the
       existence of a reasonable probability that, but for counsel’s error, the result of the
       proceeding would have been different.” [Citation omitted.]

Counsel is not ineffective for failing to raise meritless or futile objections. People v Eisen, 296
Mich App 326, 329; 820 NW2d 229 (2012). Because defendant cannot demonstrate
prosecutorial error, defendant’s claim that defense counsel was ineffective for not objecting to
the claimed prosecutorial error is meritless.

       Affirmed.



                                                             /s/ Mark T. Boonstra
                                                             /s/ Patrick M. Meter
                                                             /s/ Jane M. Beckering




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