                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 19, 2017
              Plaintiff-Appellee,

v                                                                  No. 329678
                                                                   Muskegon Circuit Court
ADRAIN TAYLOR WAYNE,                                               LC No. 15-066296-FC

              Defendant-Appellant.


Before: MURPHY, P.J., and METER and RONAYNE KRAUSE, JJ.

PER CURIAM.

        Defendant was convicted by a jury of assault with intent to commit murder (AWIM),
MCL 750.83, felon in possession of a firearm (felon-in-possession), MCL 750.224f, and two
counts of possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. He was sentenced to 25 to 50 years’ imprisonment for the AWIM conviction, one to
five years’ imprisonment for the felon-in-possession conviction, and to two years’ imprisonment
for each of the felony-firearm convictions. Defendant appeals as of right, and we affirm.

        This case arises out of a shooting that occurred in Muskegon. There was evidence that
the victim and defendant had an altercation about 40 to 50 days before the shooting, where the
victim hit defendant and “knocked him out.” The victim testified that he has known defendant
since childhood and that they grew up in the same neighborhood. On the day of the shooting, the
victim was walking to his grandmother’s residence when he saw defendant approach in his white
Chevrolet S-10 pickup truck. Defendant stopped, exited his vehicle, and began running toward
the victim in a crouched position. The victim thought that defendant wanted to engage in a
physical fight in revenge for the earlier incident. The victim headed in defendant’s direction
prepared to fight, but he then heard a gunshot and started running away from defendant. In his
attempt to retreat from defendant, who was now chasing the victim, the victim tried to get behind
a telephone pole, tripped on a curb, did a somersault, bounced back up, and kicked at defendant.
Around the time of the tumble, defendant heard a second gunshot. While the victim testified that
the sound of the gunshots seemed close in proximity to the victim, about two to three feet away,
he never actually saw a firearm in defendant’s possession. The victim, who feared he had been
shot, was not struck by any bullets. According to the victim, after the second shot, defendant
went back to his truck and drove away. The victim entered the nearby residence of his uncle,
who had heard two “pop[s].” The uncle testified that the victim stated, “I just got shot at.”

       A neighbor who lived across the street from the scene of the shooting identified
defendant as the shooter from a photograph of defendant. The neighbor watched the whole
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shooting episode transpire while sitting outside on the curb. He testified that defendant, after
arriving in a pickup truck and exiting the vehicle, ran behind the victim, held a gun out, pointed
it, and “fired two shots,” with the victim falling “on the second shot,” leaving the neighbor to
believe that the victim had been shot. According to the neighbor, defendant returned to his truck
after the victim went to the ground. Later, the neighbor was specifically asked whether the shots
were fired toward the victim, and the neighbor replied, “Yes.”

        On appeal, defendant first argues that there was insufficient evidence to show that he had
the intent to kill relative to the AWIM offense. Defendant contends, therefore, that the AWIM
conviction must be vacated, as well as the one felony-firearm conviction for which AWIM was
the predicate felony. AWIM is a specific intent crime. People v Lipps, 167 Mich App 99, 105;
421 NW2d 586 (1988). “The elements of assault with intent to commit murder are: (1) an
assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder.”
People v Brown, 267 Mich App 141, 147-148; 703 NW2d 230 (2005) (citations and quotation
marks omitted). With respect to the intent to kill, it is well settled that such intent may be
inferred from any facts in evidence. People v Unger, 278 Mich App 210, 223; 749 NW2d 272
(2008). “Because of the difficulty of proving an actor’s state of mind, minimal circumstantial
evidence is sufficient to establish a defendant’s intent to kill.” Id. In general, the intent to kill
may be gleaned from the nature of the acts that constituted the assault, the temper or disposition
of mind with which the acts were apparently performed, whether the means used would naturally
produce death, use of a dangerous weapon, any declarations by the defendant, and all other
circumstances calculated to throw light upon the intention with which an assault was made.
Brown, 267 Mich App at 149 n 5; People v DeLisle, 202 Mich App 658, 672; 509 NW2d 885
(1993).

        Here, there was evidence that defendant, who had previously been assaulted by the
victim, wielded a firearm, which constitutes a dangerous weapon, and that defendant discharged
the gun twice in the direction of the victim, which is an act that would have a natural tendency to
produce death, with defendant fleeing after the victim went down, giving rise to a reasonable
inference that defendant thought that he had hit the victim, as was the neighbor’s belief.
Viewing the direct and circumstantial evidence in a light most favorable to the prosecution,
People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012); People v Hardiman, 466 Mich 417,
428; 646 NW2d 158 (2002), taking into consideration all reasonable inferences arising from the
evidence, People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999), resolving all conflicts in
the evidence in favor of the prosecution, People v Kanaan, 278 Mich App 594, 619; 751 NW2d
57 (2008), and deferring to the jury’s assessment of the weight of the evidence and the credibility
of the witnesses, People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992), a rational juror
could have found that defendant intended to kill the victim. Accordingly, there was sufficient
evidence to support the AWIM conviction, as well as the associated felony-firearm conviction.

        Next, defendant argues that he was denied due process and a fair trial by the
impermissibly suggestive pretrial identification procedure relative to the neighbor’s
identification of defendant as the shooter, i.e., a single photograph of defendant that was first
shown to the victim, which in turn tainted the neighbor’s identification of defendant at trial.
There is no basis to find plain error affecting defendant’s substantial rights with respect to this
unpreserved issue. Carines, 460 Mich at 763-764. At trial, defendant never really disputed that
he was at the scene of the crime and that an incident occurred between defendant and the victim.
Instead, defendant, as he does on appeal, claimed a lack of evidence showing an intent to kill,
highlighting that defendant never saw a gun and arguing that the neighbor was not that close and
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was distracted by children who were present. Defendant grew up in the victim’s neighborhood
and the two men were well acquainted; there was no evidence suggesting that defendant may
have been elsewhere. Even if the neighbor could not have specifically identified defendant and
assuming an impermissibly suggestive identification procedure, the neighbor would not have
been prevented from testifying to his observance of a person arriving in a truck and shooting
twice at the victim, which evidence, when contemplated in conjunction with the victim’s
testimony, would have pointed to defendant as the shooter. And the neighbor accurately
described defendant’s vehicle. The requisite prejudice simply cannot be established.1 Moreover,
considering the neighbor’s more-than-adequate opportunity to observe the shooter during the
offense and the short period of time between the offense and the photo identification, there was a
sufficient independent basis for the neighbor’s in-court identification of defendant. People v
Gray, 457 Mich 107, 115-116; 577 NW2d 92 (1998). Reversal is unwarranted.

        Next, defendant argues that his rights to due process and a fair trial were violated because
the trial court improperly admitted, under the excited utterance exception to hearsay, MRE
803(2), the victim’s statement to his uncle that he had “just [been] shot at.” The uncle did testify
that the victim had calmed down by the time that the statement was made. Nevertheless,
assuming error, it was entirely harmless. MCL 769.26; People v Lukity, 460 Mich 484, 495; 596
NW2d 607 (1999). Between the victim and neighbor’s testimony, it was shown that defendant
had shot at the victim, and the statement by the victim to his uncle added little and was
inconsequential.

        Finally, defendant asserts that he was denied the effective assistance of counsel because
his trial counsel failed to remove two venirepersons who were acquainted with the victim’s
uncle. Defendant concedes that one of those venirepersons was excused by the prosecutor, but
the other one was allowed to serve on the jury. That juror, however, specifically stated that she
did not know and had never spoken to the victim’s uncle. Rather, she simply disclosed that the
victim’s uncle had a child with a girl that she had gone to high school with years earlier, while
expressing that the connection would not affect her role as an impartial juror. On this record,
there is no basis to find deficient performance or prejudice. People v Carbin, 463 Mich 590,
599-600; 623 NW2d 884 (2001); see also Unger, 278 Mich App at 258 (“this Court has been
disinclined to find ineffective assistance of counsel on the basis of an attorney’s failure to
challenge a juror”).

       Affirmed.



                                                             /s/ William B. Murphy
                                                             /s/ Patrick M. Meter
                                                             /s/ Amy Ronayne Krause



1
  For this same reason, we reject defendant’s associated argument that defense counsel was
ineffective for failing to challenge the neighbor’s pretrial identification of defendant. People v
Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001) (to show ineffective assistance of
counsel, a defendant must demonstrate deficient performance and prejudice).

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