            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PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  May 30, 2019
              Plaintiff-Appellee,

v                                                                 No. 339131
                                                                  St. Clair Circuit Court
DOUGLAS EDWIN BALL JR.,                                           LC No. 16-002322-FC

              Defendant-Appellant.


Before: STEPHENS, P.J., and GLEICHER and BOONSTRA, JJ.

PER CURIAM.

       Defendant appeals as of right his jury convictions of first degree murder, MCL 750.316,
under multiple theories: (a) premeditation (MCL 750.316(1)(a)) and (b) felony murder (MCL
750.316(1)(b)), and of torture, MCL 750.85. The offense of torture was the predicate felony for
purposes of establishing first-degree murder under a felony murder theory. He was sentenced as
a second offense habitual offender, MCL 769.10, to life imprisonment for the murder charge and
19 to 30 years’ imprisonment for the torture charge. We affirm.

                                     I. BACKGROUND

       Defendant’s convictions arise from the death of his wife Lydia Ball that occurred in the
basement of the home, which they shared with their five-year-old son and her parents, Larry and
Roxanne. Lydia was last seen alive in the home on the night of August 18, 2016. The next
morning defendant told Lydia’s parents that Lydia had risen early to apply for a job. Throughout
the day of August 19, defendant told Lydia’s parents that he was receiving text messages from
Lydia. He reported to them that Lydia was out with a friend and later that night that Lydia had
decided to stay over at the friend’s house. The following morning, defendant told Lydia’s
parents that Lydia needed to be picked up from her friend’s house an hour and a half away.
When her parents left, defendant packed up their son’s belongings and took multiple items from
the house to a local pawnshop. After pawning the items, defendant drove to his mother’s place
of employment and asked her if he could stay at her home. Defendant told his mother that he
and Lydia had an argument, and that out of fear of losing his son he was considering going to
Tennessee. Lydia’s parents followed the directions given by the defendant to retrieve Lydia but



                                              -1-
discovered that the address was to the Ira Township Fire Department. When they returned,
Roxanne discovered Lydia’s body in the basement with a bag over her head and bound at the
hands and feet. Roxanne testified that it appeared as if bleach had been poured over Lydia’s
clothes. Defendant was arrested at his mother’s home the following day, August 20.

        The trial testimony from the medical examiner was that Lydia was struck 14 times in the
scalp with a heavy blunt object that left a pattern similar to that of the homemade mallet
discovered near her body. Without objection, law enforcement witnesses testified that
defendant’s cellular phone had not received text messages from Lydia asking to be picked up
from Ira Township. Further, the friend whom defendant said Lydia was with testified that she
had not seen Lydia in months and was not with her on the days in question. Lydia’s cellphone
was never recovered, however phone records established that all but one of the texts sent from
her phone to defendant’s phone were affiliated with a tower near her parent’s residence. Other
evidence was presented including several bottles of bleach found during the crime scene
investigation. The jury found defendant guilty of first-degree murder and torture. He appeals
from these convictions.

             II. SUFFICIENCY OF THE EVIDENCE, INSTRUCTIONAL ERROR
                             AND VERDICT UNANIMITY

        Defendant first argues that there was insufficient evidence to support his conviction for
torture, and therefore that it is impossible to know whether the jury reached a unanimous verdict
on the first-degree murder conviction.

                                 A. STANDARDS OF REVIEW

        “We review de novo a challenge on appeal to the sufficiency of the evidence.” People v
Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). “We examine the evidence in a light
most favorable to the prosecution, resolving all evidentiary conflicts in its favor, and determine
whether a rational trier of fact could have found that the essential elements of the crime were
proved beyond reasonable doubt.” Id. at 196. “Circumstantial evidence and reasonable
inferences therefrom may be sufficient to prove all the elements of an offense beyond a
reasonable doubt.” People v Schumacher, 276 Mich App 165, 167; 740 NW2d 534 (2007).
“[I]n reviewing a sufficiency-of-the-evidence claim, we must defer to the fact-finder by drawing
all reasonable inferences and resolving credibility conflicts in support of the jury verdict.” Id.

        We also review claims of instructional error and issues of constitutional and statutory
interpretation de novo. People v Kowalski, 489 Mich 488, 501; 803 NW2d 200 (2011); People v
Gayheart, 285 Mich App 202, 207; 776 NW2d 330 (2009).

                                          B. ANALYSIS

        Defendant challenges his conviction for torture on the ground that there was insufficient
evidence that he tortured Lydia. He additionally argues that if this Court agrees that there was
insufficient evidence of torture, it should also find that the trial court committed reversible error
by allowing the jury to deliberate on multiple theories of first degree murder, i.e., felony murder
and premeditated murder, to convict him. Defendant contends that if there was insufficient

                                                -2-
evidence of torture, then it would be impossible to determine under which theory of murder the
jury convicted him, thereby denying him his right to a unanimous verdict.

        At trial, defendant requested the jury be given Criminal Jury Instruction 16.25; an
instruction that the jury’s verdict must be unanimous with respect to premeditated murder or
felony murder.1 The court denied defendant’s request and the jury was instructed that defendant
was “charged with the crime of first degree murder under either the legal theory of premeditated
murder or felony murder.”

        Michigan law provides criminal defendants the right to a unanimous jury verdict. MCR
6.410(B). “In order to protect a defendant’s right to a unanimous verdict, it is the duty of the
trial court to properly instruct the jury regarding the unanimity requirement.” People v Cooks,
446 Mich 503, 511; 521 NW2d 275 (1994). Typically, this duty is fulfilled when the trial court
provides the jury with a general instruction on unanimity. Id. at 512. “A general verdict of
guilty is erroneous when the offenses charged are separate and distinct in character, provable by
substantially different evidence, and punishable by different penalties.” People v Fullwood, 51
Mich App 476, 481; 215 NW2d 594 (1974). On the other hand, “where materially identical
evidence is presented with respect to each act, and there is no juror confusion, a general
unanimity instruction will suffice.” Cooks, 446 Mich at 512-513.

       The court was not required to give a specific unanimity instruction in defendant’s case
because there was sufficient evidence to establish both first-degree premeditated murder and
felony murder, the charges were proved by substantially the same evidence, and there was no
evidence of juror confusion. The elements of premeditated first-degree murder are that the
defendant killed the victim and that the killing was either “willful, deliberate, and premeditated.”
MCL 750.316(1)(a); People v Bowman, 254 Mich App 142, 151; 656 NW2d 835 (2002).



1
    M Crim JI 16.25 provides:
         (1) You have been instructed on the two types of first-degree murder. Those two
         types are premeditated murder and felony murder.

         (2) A verdict in a criminal case must be unanimous. To be unanimous, each of
         you must agree upon which type of first-degree murder has been proved or that
         both types of first-degree murder have been proved.

         (3) If you return a verdict of guilty of first-degree murder, your unanimous verdict
         must specify whether all of you have found the defendant guilty of:

         (a) premeditated murder, or

         (b) felony murder, or

         (c) both.



                                                 -3-
        Viewing the evidence in a light most favorable to the prosecution, there was sufficient
evidence to support that defendant was Lydia’s murderer. The exact time of Lydia’s death was
unknown. Dr. Spitz opined that the timeframe however, was narrow, being sometime between
August 18, when Lydia was last seen alive, “[p]ossibly going into the 19th.” The evidence
supports that only the defendant, his five-year-old son, Larry and Roxanne were in the home
during that period. Expert testimony established that Lydia was murdered in the basement and
her body was found there on August 20. According to the testimony of Lydia’s parents, the
defendant was the only person with access to the basement between the afternoon of April 18
until August 19. Specifically, Roxanne testified that the defendant prohibited her from entering
the basement when she wanted to do laundry. Defendant’s fingerprints were found on those
trash bags containing bleach recovered by the police. The victim’s blood was found on clothing
connected to the defendant. A footprint matching the defendant’s was found in the basement
near the body of the deceased. There was also evidence presented that at some point Lydia’s
blood came in contact with the defendant’s fingers. Additionally, defendant’s only theories, that
Lydia was killed by an outside intruder or by their brother Edward, were unsupported. There
was no evidence of outside entry by an intruder and Edward’s alibi that he was at work or at
home during the period at issue was supported by his employer and roommates.

        There was also sufficient evidence of premeditation in defendant’s case.                To
“premeditate” is to “think about beforehand” and to “deliberate” is to “measure and evaluate the
major facets of a choice or problem.” People v Bass, 317 Mich App 241, 266; 893 NW2d 140
(2016) (quotation marks and citation omitted). Premeditation “may be established by an interval
of time between the initial homicidal thought and ultimate action, which would allow a
reasonable person time to subject the nature of his or her action to a ‘second look.’ ” People v
Oros, 502 Mich 229, 242; 917 NW2d 559 (2018) quoting People v Gonzalez, 468 Mich 636,
641; 664 NW2d 159 (2003); People v Tilley, 405 Mich 38, 45; 273 NW2d 471 (1979). The jury
could first infer premeditation from the weapon used in the killing. People v Jackson, 171 Mich
App 191, 199; 429 NW2d 849 (1988). Dr. Spitz concluded that Lydia’s scalp injuries, which led
to her death, were caused by the welding hammer found in the basement near her body. Both
defendant and Lydia’s brother Edward owned a welding hammer. Edward identified the hammer
found near Lydia’s body as his. Both Edward and Larry testified that Edward’s hammer was last
seen in Larry’s vehicle where it was normally kept because Larry had driven Edward and
defendant to work. Edward had since moved out of his parents’ home, was no longer working as
a welder, and had left his mallet behind in the vehicle. No one testified to having brought the
hammer into the house nor was there testimony that the vehicle had been broken into to support
anyone else having had possession of it. The jury could infer that defendant, who still lived with
Edward’s parents in their home with Lydia, had access to the murder weapon. Premeditation
could be established either by the time that it took to retrieve the weapon or in the decision and
plan to take the weapon to the basement to murder Lydia. Lydia’s defensive wounds, in the form
of bruises and abrasions on her fingers, hands and arms, were further evidence of premeditation.
People v Johnson, 460 Mich 720, 733; 597 NW2d 73 (1999). The time in which Lydia was
defending herself was the same time allotted defendant to measure and evaluate his actions.
“[E]vidence that a victim sustained multiple violent blows may support an inference of
premeditation and deliberation” as well. People v Unger, 278 Mich App 210, 231; 749 NW2d
272 (2008). Dr. Spitz testified that Lydia suffered “14 severe lacerating wounds” to her scalp.
Again, each blow to the head was an interval of time in which defendant could take a second
look. This Court has also held that evidence of a struggle between the defendant and the victim
                                               -4-
can be evidence of premeditation and deliberation. People v Johnson, 460 Mich 720, 733; 597
NW2d 73 (1999). Here, law enforcement and Dr. Spitz observed that Lydia’s pants were torn
from the back. Roxanne testified that items she kept stored in the basement were knocked over
on the floor. Forensic scientists noted blood spatter in multiple areas throughout the basement.
This evidence showed that a struggled ensued between defendant and Lydia. It also supported
the jury finding that defendant had time to think beforehand.

        A substantial amount of circumstantial evidence showing consciousness of guilt was also
submitted to the jury. The jury was allowed to infer consciousness of guilt from evidence of
defendant’s lying and deception as to Lydia’s whereabouts. Unger, 278 Mich App at 227.
Defendant’s effort to destroy evidence of the murder with bleach also showed consciousness of
guilt. See People v Usher, 121 Mich App 345, 351; 328 NW2d 628 (1982), overruled in part on
other grounds People v Perry, 460 Mich 55, 64-65; 594 NW2d 477 (1999). Evidence that
defendant fled the home after Lydia’s parents left and told his mother he intended to leave the
state further inferred consciousness of guilt. People v McGhee, 268 Mich App 600, 613; 709
NW2d 595 (2005). “Michigan authority appears uniform in holding that actions by the
defendant such as flight to avoid lawful arrest, procuring perjured testimony and attempts to
destroy evidence, while possibly as consistent with innocence as with guilt, may be considered
by the jury as evidence of guilt.” People v Casper, 25 Mich App 1, 7; 180 NW2d 906 (1970).

        Viewing the evidence in a light most favorable to the prosecution, it was sufficient for the
jury to find that defendant premeditated Lydia’s murder.

         “The elements of felony murder are (1) the killing of a human being, (2) with the intent to
kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with
knowledge that death or great bodily harm was the probable result, (3) while committing,
attempting to commit, or assisting in the commission of any of the felonies specifically
enumerated in MCL 750.316(1)(b).” People v Gayheart, 285 Mich App 202, 210; 776 NW2d
330 (2009). The predicate felony relied on by the prosecution was torture. A person is guilty of
torture if “with the intent to cause cruel or extreme physical or mental pain and suffering, [he]
inflicts great bodily injury or severe mental pain or suffering upon another person within his . . .
custody or physical control....” MCL 750.85(1).

        There was sufficient evidence of the underlying felony of torture for the jury to find
defendant guilty both of that underlying offense and of first-degree murder under a felony
murder theory. Defendant concedes that Lydia’s injuries support finding that there was the
intent to cause extreme physical pain and suffering, and that great bodily injury was inflicted.
Defendant therefore disputes only that Lydia was under his custody and control. MCL 750.85
defines “custody or physical control” as “the forcible restriction of a person’s movements or
forcible confinement of the person so as to interfere with that person’s liberty, without that
person’s consent or without lawful authority.” MCL 750.85(2)(b). Defendant argues that the
statute requires that the element of “forcible restriction or forcible confinement” be construed as
separate acts from the attack itself. Defendant cites no authority for this interpretation and when
plainly read, there is no temporal requirement in the statute. Defendant’s choice of location to
commit the murder as well as evidence at the crime scene however support finding that Lydia’s
movements were forcibly restricted or confined.


                                                -5-
       The evidence of confinement was significant. Defendant and Lydia lived with their son
and Lydia’s parents. Confining Lydia to a single area was necessary to avoid detection and
complete the murder in the home. Forensic Scientists Shane Hill and Teresa Scott testified that
the murder occurred in the basement. Edward and Roxanne testified that they would not have
been able to hear anything occurring in the basement from the second story. The basement was
an area of seclusion. The location was also easier for defendant to exert control over Lydia
because there was only one way out, by use of the stairway, which was easy for defendant to
block.

         There was considerable evidence of the victim’s struggle with her assailant. Dr. Spitz
testified that the back waistband of Lydia’s pants was torn. Hill and Scott testified that there was
blood spatter throughout the basement. From this evidence, the jury could infer that Lydia tried
to escape from defendant.

        There was, also, evidence of torture. As noted above, the deceased was found bound.
She was subjected to no less than 14 blows to the head. Contrary to defendant’s position, this
evidence also illustrates the forcible confinement of an active victim, and not someone who was
unable to escape merely because she lay dying. At some point however, Lydia became inactive
as implied by Dr. Spitz’s testimony that the zip tie ligatures on Lydia’s wrists and ankles
indicated that she was no longer struggling at the time of their application. Dr. Spitz did not
conclude that Lydia was already deceased when she was bound, rather only that there was no
evidence of a struggle at that point. The use of zip ties was a clear application of force to restrict
Lydia’s movement and forcibly confine her to the basement. It would have been very difficult
for Lydia to traverse the staircase with her feet and hands bound behind her. In this case,
defendant prolonged the confinement by refusing to allow Roxanne entry to the basement to do
laundry on August 19. Further, there was no evidence of jury confusion where defendant was
separately charged and convicted of the crime of torture. The fact that the jury found defendant
guilty of first-degree murder and the underlying felony used to charge him with felony murder
supports that the jury found the theory of felony murder proved beyond a reasonable doubt.

                                   III. EVIDENTIARY ERROR

        Defendant’s shorts were admitted into evidence. The DNA analysis of those shorts was
that the shorts had the blood of the deceased on them. Defendant argues that the trial court erred
in allowing the admission of DNA evidence found on a pair of his blue gym shorts because there
was no proper foundation laid to admit the evidence and Roxanne’s handling of the shorts before
their collection by forensic scientists contaminated the shorts and broke the chain of custody.
We disagree.

                                  A. STANDARD OF REVIEW

        Defendant acknowledges that he did not preserve his evidentiary challenge by
contemporaneous objection below. We review for plain error affecting a defendant’s substantial
rights unpreserved evidentiary errors. People v Jones, 468 Mich 345, 355; 662 NW2d 376
(2003). Substantial rights are affected when the defendant is prejudiced, meaning the error
affected the outcome of the trial. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
The burden is on defendant to demonstrate prejudice. Id.

                                                 -6-
                                         B. ANALYSIS

        The police establish a chain of custody by tracing the possession of an item from the time
it was discovered until the time it was presented into evidence. People v Prast, 114 Mich App
469, 491; 319 NW2d 627 (1982). Admission of evidence “does not require a perfect chain of
custody” and “any deficiency in the chain of custody goes to the weight of the evidence rather
than its admissibility once the proffered evidence is shown to a reasonable degree of certainty to
be what its proponent claims.” People v White, 208 Mich App 126, 130-131; 527 NW2d 34
(1994). “A break in the chain of custody of evidence does not require automatic exclusion of the
proffered evidence.” People v Jennings, 118 Mich App 318, 322; 324 NW2d 625 (1982). In
order to obtain the admission of real evidence, a prosecutor must lay a foundation identifying
“[t]he object which was involved in the incident, and further that the condition of the object is
substantially unchanged.” People v Beamon, 50 Mich App 395, 398; 213 NW2d 314 (1973)
citing McCormick, Evidence (2d ed), s 212, p. 527.

        Defendant’s contention that there was a break in the chain of custody is misplaced where
his claim that the shorts were mishandled by Roxanne points to the time before the evidence was
seized by law enforcement. Prast, 114 Mich App at 491. The chain of custody does not begin
until the evidence is seized by police.

        Defendant next challenges the forensic finding of Lydia’s blood on his shorts by arguing
the shorts were contaminated either by Roxanne or by their placement in the cardboard box.
There was no evidence, however, that the shorts were contaminated by either. Roxanne testified
that she found the shorts in the cardboard box and placed them in a Kroger bag by the front door
before she went into the basement and found Lydia. There was no testimony that her hands got
blood on them from contact with Lydia’s body or that she handled the Kroger bag or shorts after
she came up from the basement. Further, the shorts were later found by forensic scientist Lisa
Mayfield in the same location as Roxanne testified she left them, near the front door in a Kroger
bag. Defendant’s argument that the shorts were contaminated by their placement in the box is
also unsupported because forensic scientist Hill testified that he searched the large cardboard box
and found mostly children’s toys and nothing of evidentiary value.

        The prosecutor laid the proper foundation for the DNA’s admission. The testimony
established that the defendant was wearing shorts with Lydia’s blood on them around the time of
her disappearance and murder. Further, the testimony established that Roxanne’s handling of the
shorts had not substantially changed their condition before they were collected by law
enforcement. Defendant has thus not identified any error, much less outcome determinative
error, on this record and the trial court did not err in allowing the DNA evidence to be admitted.

       Affirmed.



                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Mark T. Boonstra



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