                              STATE OF MICHIGAN

                               COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      October 18, 2018
                  Plaintiff-Appellee,

v                                                                     No. 339562
                                                                      Wayne Circuit Court
ERIC GERARD ELDER,                                                    LC No. 17-000987-01-FC

                  Defendant-Appellant.


Before: O’BRIEN, P.J., and K. F. KELLY and FORT HOOD, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial convictions of first-degree murder, MCL
750.316, felonious assault, MCL 750.82, felon in possession of a firearm (felon-in-possession),
MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b. Defendant was sentenced to concurrent sentences of life imprisonment without
the possibility of parole for the first-degree murder conviction, two to four years’ imprisonment
for the felonious assault conviction, and two to five years’ imprisonment for the felon-in-
possession conviction, to be served consecutively to the mandatory two-year term of
imprisonment for felony-firearm. We affirm.

                                                I. FACTS

        This case arises from the shooting death of Samuel Patton, Sr. (Patton, Sr.), who was shot
multiple times from behind on December 19, 2016, while sitting in his motor vehicle with his 11-
year-old son, S.P.,1 in the backseat. Patton Sr. had just returned to his home at 12145 Stout
Street in Detroit, Michigan at approximately 9:00 p.m. after having dinner with his long-time
girlfriend, Chandra Young, and their other child, Samuel Patton, Jr (Patton, Jr.), when the
shooter approached his vehicle, shooting Patton Sr. multiple times in the back and neck and
shattering the back window of the vehicle. Young and Patton Jr. had just entered the family
home when the shooting began, but ran out of the home when they heard shots fired and Young
was able to see the shooter as he fired the final shots and fled the scene.



1
    Because S.P. is a minor he will be referred to by his initials.


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                          II. GREAT WEIGHT OF THE EVIDENCE

            A. PRESERVATION OF THE ISSUE AND STANDARD OF REVIEW

       Defendant first argues that his convictions should be vacated because the jury’s verdict
was against the great weight of the evidence where the identification of defendant as the shooter
was unreliable. We disagree.

       A defendant must raise the argument that a jury’s verdict was against the great weight of
the evidence in a motion for a new trial in order to preserve that issue for appellate review.
People v Lopez, 305 Mich App 686, 695; 854 NW2d 205 (2014). Before filing his appeal,
defendant moved the trial court for a judgment notwithstanding the verdict (JNOV) on the basis
that the prosecution did not establish that the shooting of Patton Sr. was deliberate and
premediated. Notably, defendant did not challenge the prosecution’s evidence identifying
defendant as the shooter. Therefore, the issue is not preserved for appellate review.

        This Court reviews an unpreserved challenge to the great weight of the evidence for plain
error affecting the defendant’s substantial rights. People v Musser, 259 Mich App 215, 218; 673
NW2d 800 (2003). Under the plain error standard, the defendant must satisfy three
requirements: “1) error must have occurred, 2) the error was plain, i.e., clear or obvious, and 3)
the plain error affected substantial rights.” People v Carines, 460 Mich 750, 763; 597 NW2d
130 (1999). The third prong requires that the defendant establish prejudice where “the error
affected the outcome of the lower court proceedings.” People v Borgne, 483 Mich 178, 196-197;
768 NW2d 290, reh gtd on other grounds 485 Mich 868 (2009). Even if all three requirements
are met, “[r]eversal is warranted only when plain error resulted in the conviction of an actually
innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” People v Callon, 256 Mich App 312, 329; 662 NW2d 501 (2003).

        A new trial may be granted if the verdict is against the great weight of the evidence.
MCR 2.611(A)(1)(e). The relevant inquiry “to determine whether a verdict is against the great
weight of the evidence is whether 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). A verdict is against the great weight of the evidence
“only when the evidence does not reasonably support it and it was more likely the result of
causes outside the record, such as passion, prejudice, sympathy, or some other extraneous
influence.” Id. A new trial is only appropriate if the witness testimony contradicts “indisputable
physical facts or laws,” is “patently incredible” or defies physical realities, is “so inherently
implausible that it could not be believed by a reasonable juror,” or was “seriously impeached in a
case that was marked by uncertainties and discrepancies.” People v Bosca, 310 Mich App 1, 13;
871 NW2d 307 (2015) (citations and quotation marks omitted).

                                         B. ANALYSIS

        The thrust of defendant’s argument on appeal is that Young’s identification of defendant
was unreliable and consisted of numerous frailties. For example, defendant alleges that Young
was not present when the shooter fired shots at Patton, Sr., and that because Patton, Jr. testified
that he could not see the shooter as the shooter left the scene and where the shooter’s face was

                                                -2-
obscured by a hoody, that Young likewise would not have been able to clearly identify the
shooter. Defendant also points out that Young saw the shooter for a very short time under
stressful circumstances, and therefore her identification of defendant is “patently incredible.”
While cognizant of defendant’s arguments, our review of the record confirms that the jury’s
verdict is not against the great weight of the evidence. Young testified that she ran outside the
family home when she heard shooting and that she clearly saw the shooter’s face as he shot into
the back of Patton, Sr.’s car. Young confirmed during her trial testimony that the area outside
the home was well-illuminated2 and during her cross-examination by defense counsel stated that
she had “clear sight” to see the shooter. Additionally, Patton, Jr. testified that Young was the
first to run outside and that the shooter stopped shooting when Young yelled out, which allowed
Young to see the shooter’s face. After identifying the shooter to the police in the hours after the
shooting, Young was subsequently able to identify defendant from a “six-pack” photographic
lineup that the police prepared for her. During cross-examination, Young also denied defense
counsel’s allegations that she could only see the shooter for a very short period of time and that
she was unable to see the shooter’s face because he was wearing a hoody. Defense counsel spent
a significant amount of time questioning S.P., Young and Patton Jr. regarding the circumstances
under which they were able to view the shooter. While we acknowledge that S.P. and Patton Jr.
gave identifications of the shooter that may not have been consistent with defendant’s
appearance, these inconsistencies were for the jury to evaluate and consider.3 People v
Harverson, 291 Mich App 171, 179; 804 NW2d 757 (2010).

        To the extent that defendant, in a cursory fashion, appears to challenge Young’s
identification of him from the photographic array on the basis that her identification was the
product of impermissibly suggestive pretrial procedures, we observe that defendant has not
presented legal authority in support of this contention. “An appellant may not merely announce
his position and leave it to this Court to discover and rationalize the basis for his claims, nor may
he give only cursory treatment [of an issue] with little or no citation of supporting authority.”
People v Watson, 245 Mich App 572, 587; 629 NW2d 411 (2001) (citation and quotation marks
omitted). In any event, our review of the record evidence confirms that the photographic array
and the procedures that the police undertook with regard to it were not unduly suggestive. This
Court evaluates the fairness of an identification procedure “in light of the total circumstances to
determine whether the procedure was so impermissibly suggestive that it led to a substantial
likelihood of misidentification.” People v Hornsby, 251 Mich App 462, 466; 650 NW2d 700
(2002) (citations omitted). “Physical differences among the lineup participants do not
necessarily render the procedure defective and are significant only to the extent that they are


2
  Detective Jesus Colon with the Detroit Police Department attended the scene shortly after the
shooting and during his trial testimony he confirmed that the scene of the shooting was well-
illuminated by both a porch light on the family home as well as street lights.
3
  During his trial testimony S.P. testified that the shooter had dark skin and facial hair, and
during cross-examination agreed that at the preliminary examination he stated that the shooter
was “short” and “fat” and looked to be 20 years old. The record reflects that defendant was born
May 22, 1965. Patton Jr. testified that he could not see the shooter’s face as his view was
obstructed by the shooter’s hoody, but he also described the shooter’s build as “chubby.”


                                                -3-
apparent to the witness and substantially distinguish the defendant from the other lineup
participants.” Id. Similarly, any physical differences will generally pertain to the weight of the
identification as opposed to its admissibility. Id.

        During trial, defense counsel questioned Young, as well as Detroit Police Department
Detective Scott Shea, the officer in charge of this investigation, concerning the circumstances
giving rise to Young’s identification of defendant from the photographic array. Specifically,
Detective Shea testified that after Young identified the shooter in an interview shortly after the
shooting, he returned to the police station, and in accordance with usual police procedures, he put
together a photographic array of defendant with five other individuals. Detective Shea reported
that once presented with the photographic array, Young immediately identified defendant.
Defense counsel also questioned Detective Shea regarding how he prepared the photographic
array and the circumstances under which he presented it to Young. Further, defense counsel
attempted to challenge Young’s identification of defendant as the shooter by questioning Young
during cross-examination regarding how she did not tell the 911 operator when she called 911
immediately after the shooting that she could identify the shooter. Defense counsel also asked
Young extensively about the circumstances of her identification of defendant from the
photographic array and if she was influenced by the police or her sons to identify defendant as
the shooter. In response to defense counsel’s questioning on the issue of defendant’s appearance
in the photographic array, Young also confirmed that the fact that defendant wore bright clothing
in his photograph in no way distinguished him from the other individuals in the photographic
array. All six individuals in the photographic array were African-American males with facial
hair and shortly-cropped hair. While defendant’s shirt was brightly colored, at least one other
participant in the photographic array had a brightly colored shirt. Thus, there is no suggestion
from the record that the composition of the photographic array was impermissibly suggestive to
the extent that it would have given rise to a substantial likelihood of misidentification. See id.
Accordingly, we are not persuaded that the jury’s verdict is against the great weight of the
evidence.

                           III. SUFFICIENCY OF THE EVIDENCE

                                 A. STANDARD OF REVIEW

        Defendant next argues that there was insufficient evidence to support his convictions of
first-degree murder, felonious assault, felon-in-possession, and felony-firearm. We disagree.

        We review de novo defendant’s challenge to the sufficiency of the evidence. People v
Carll, 322 Mich App 690, 694 n 1; 915 NW2d 387 (2018). Reviewing the evidence in a light
most favorable to the prosecution, this Court asks whether a “rational trier of fact could find the
defendant guilty beyond a reasonable doubt.” People v Hardiman, 466 Mich 417, 421; 646
NW2d 158 (2002). It is the role of the factfinder, rather than this Court, to determine the weight
of the evidence and the credibility of witnesses. People v Lee, 243 Mich App 163, 167; 622
NW2d 71 (2000). “Circumstantial evidence and the reasonable inferences that arise from that
evidence can constitute satisfactory proof of the elements of the crime.” People v Henderson,
306 Mich App 1, 9; 854 NW2d 234 (2014). This Court resolves any evidentiary conflicts in
favor of the prosecution. Id.


                                                -4-
                                          B. ANALYSIS

        Echoing his arguments presented in support of his challenge with regard to the great
weight of the evidence, defendant contends there was insufficient evidence to establish that
defendant was the shooter. Defendant points to the same evidence that he relied on in arguing
that the jury’s verdict was against the great weight of the evidence—mainly, that the evidence
was insufficient to support his convictions because Young’s identification of defendant was
“inherently implausible.” Defendant does not challenge the sufficiency of the evidence with
respect to any other specific element of any of the crimes of which he was convicted.

        “[I]dentity is an element of every offense,” People v Yost, 278 Mich App 341, 356; 749
NW2d 753 (2008), and the burden is on the prosecution to establish the identity of the accused in
order to prove the defendant’s guilt beyond a reasonable doubt, People v Kern, 6 Mich App 406,
409; 149 NW2d 216 (1967). Contrary to defendant’s arguments, there was ample direct and
circumstantial evidence presented to the jury to establish that defendant was the shooter. For
example, Young testified when she came out of her house, she saw defendant shooting into the
back of Patton, Sr.’s car. Young identified defendant from the photographic array shortly after
the shooting. Young also clearly, and without hesitation, identified defendant as the shooter at
trial. A witness’s positive identification may be sufficient to support a guilty conviction. See
People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000) (recognizing that “this Court
has stated that positive identification by witnesses may be sufficient to support a conviction of a
crime.”). “The credibility of identification testimony is a question for the trier of fact that [this
Court does] not resolve anew.” Id.

        That defendant was the individual who shot Patton Sr. multiple times was also
established by circumstantial evidence. In addition to direct evidence, identity can be established
by circumstantial evidence. See People v Bass, 317 Mich App 241, 264-265; 893 NW2d 140
(2016) (concluding that there was sufficient circumstantial evidence, even if based on inferences,
to establish the defendant’s identity as the perpetrator of the charged offenses). This is because
circumstantial evidence is, at times, stronger than direct evidence. People v Wolfe, 440 Mich
508, 526; 489 NW2d 748, amended 441 Mich 1201 (1992). During defendant’s police
interrogation, defendant admitted that he has had the same cellular telephone number for several
years and that he had his cellular telephone with him on December 19, 2016. Defendant also
admitted that he drove past Anthony Vaughn’s house, where his wife Ebony Bradley worked,
which is across the street from Patton, Sr.’s house, on December 19, 2016. Special Agent Stan
Brue testified that he analyzed the cellular telephone records for the cellular telephone number
that defendant gave to the police during his interrogation. Significantly, Special Agent Brue also
confirmed that defendant’s cellular telephone was within .8 miles of 12145 Stout Street at the
time of the shooting. Special Agent Brue also noted that defendant’s cellular telephone number
made three phone calls at the same time that a black Hummer was seen driving past 12145 Stout
Street earlier in the evening. The record evidence established that defendant drove a black
Hummer. In addition, defendant stated during his police interrogation that he knew Patton, Sr.
and Bradley had a relationship at one point before defendant met and married Bradley. From the
questioning in his police interrogation, it was very apparent that Bradley and defendant have
significant trust issues in their marriage, as both would routinely check up on the other to make
sure that the other was being truthful about their location. Although defendant was adamant that
he did not have any hostility towards Patton, Sr., Bradley’s previous relationship with Patton, Sr.

                                                -5-
was one more piece of evidence that the jury could consider to conclude that defendant had a
motive to shoot Patton, Sr. Therefore, when viewing the record evidence, and the reasonable
inferences arising from that evidence, in the light most favorable to the prosecution, Hardiman,
466 Mich at 421, a rational trier of fact could reasonably conclude that defendant shot and killed
Patton, Sr.

                                      IV. CONCLUSION

       We affirm, but remand for the limited purpose of correcting the judgment of sentence,
which reflects that defendant was convicted of first-degree murder, felonious assault, felon-in-
possession and felony-firearm after tendering a plea of guilt. People v Avant, 235 Mich App
499, 521-522; 597 NW2d 864 (1999). We do not retain jurisdiction.



                                                            /s/ Colleen A. O'Brien
                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Karen M. Fort Hood




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