                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 20, 2017
              Plaintiff-Appellee,

v                                                                  No. 330603
                                                                   Oakland Circuit Court
TRAVIS LAMAR HUDSON,                                               LC No. 2014-252721-FC

              Defendant-Appellant.


Before: SAWYER, P.J., and SAAD and RIORDAN, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of involuntary manslaughter, MCL
750.321, and possession of a firearm during the commission of a felony (“felony-firearm”), MCL
750.227b. Before trial, defendant pleaded guilty to charges of carrying a concealed weapon,
MCL 750.227, felon in possession of a firearm, MCL 750.224f, and an additional count of
felony-firearm, MCL 750.227b, all of which arose from the same incident as his other
convictions. The trial court sentenced defendant, as a fourth habitual offender, MCL 769.12, to
25 to 40 years’ imprisonment for his involuntary manslaughter conviction, 5 to 40 years’
imprisonment for his felon in possession of a firearm conviction, 5 to 40 years’ imprisonment for
his carrying a concealed weapon conviction, and 2 years’ imprisonment for each felony-firearm
conviction. We affirm.

                                I. FACTUAL BACKGROUND

        In the afternoon on September 28, 2014, defendant was attempting to locate his stolen
iPhone. Using a “Find my Phone” application, defendant believed that he had traced the phone
to the residence of Armon Parker, who was at home playing videogames with his friends, Steffon
Causey and Davion Witherspoon.          Defendant, who was not acquainted with Parker,
Witherspoon, or Causey, knocked on Parker’s front door and asked Parker and Witherspoon
whether they had any information about his missing phone. While Parker and Witherspoon were
conversing with defendant, Causey also came to the door, telling Parker and Witherspoon to stop
talking with defendant and to shut the door. Causey tried to close the door, and Parker and
Witherspoon told Causey to “chill out.” As defendant gestured during the conversation, his shirt
came up, and Parker and Witherspoon both noticed that he was carrying a gun.

       Ultimately, Parker let defendant inside the home. Then, defendant and Causey got into a
confrontation regarding who should go down the stairs to the basement first. During the
                                               -1-
altercation, defendant felt scared in light of Causey’s aggressive behavior, so he pulled out his
loaded gun.1 He claimed that he held the gun by his side, pointing downward; that his hand was
not on the trigger; and that he did not point the gun at Causey. Defendant and Causey exchanged
more words, and Causey stepped toward defendant twice. Both times, defendant pushed Causey
away with his forearm. Defendant eventually said, “I’m going to get with you later,” and
lowered his head, intending to step away. At that moment, Causey rushed toward defendant,
reached for the gun, and grabbed defendant’s arm, instigating a struggle over the weapon.
Defendant said his back ended up against the front door during the struggle for the gun, and he
attempted to retreat from Causey, but he could not reach the latch with his back arm to get out
the door. Then, the gun went off. Defendant claimed that his hands and Causey’s hands were
both on the weapon when it fired. Causey was struck by the discharged bullet, which entered his
abdomen and exited through his buttocks. Defendant fled from the scene. The next day, Causey
died from the gunshot wound.

        Defendant eventually surrendered to the police. He was charged with felony murder for
Causey’s death, with home invasion as the predicate felony, MCL 750.316(1)(b), as well as felon
in possession of a firearm, carrying a concealed weapon, and two counts of felony-firearm. As
stated, defendant pleaded guilty to carrying a concealed weapon, felon in possession of a firearm,
and one count of felony-firearm. The case then proceeded to trial on the remaining charges.
Defendant was convicted and sentenced as discussed above.

                                   II. JURY INSTRUCTIONS

        Defendant’s sole claim on appeal is that the trial court improperly instructed the jury on
the causation element of involuntary manslaughter. Specifically, defendant claims that the trial
court erred when it failed to provide an instruction on the issue of proximate causation related to
Causey’s allegedly negligent conduct of rushing toward defendant and grabbing for the gun.

       Defendant has failed to establish that he is entitled to a new trial on this basis.

                                       A. PRESERVATION

        The substance of defendant’s claim is that the trial court erred when it failed to provide a
jury instruction on contributory negligence in accordance with M Crim JI 16.20. At the end of
the trial, the defense objected to the trial court’s instructions, contending that they were
insufficient on the issue of causation, and requested an instruction in accordance with M Crim JI
16.15. However, the defense failed to request an instruction in accordance with M Crim JI
16.20, or object to the trial court’s failure to provide that instruction. Thus, defendant’s claim of
instructional error based on M Crim JI 16.20 is unpreserved, as “[a]n objection based on one


1
 According to defendant, he pulled the gun out because he wanted Causey to leave him alone.
He also testified that (1) he was not prepared to actually use it; (2) he did not knowingly put his
hand on the trigger; (3) he did not deliberately shoot Causey, intend to kill him, or intend to
cause him great bodily harm; (4) he did not know how the gun discharged; and (5) the shooting
was an accident.


                                                 -2-
ground is usually considered insufficient to preserve an appellate attack based on a different
ground.” People v Kimble, 470 Mich 305, 309; 684 NW2d 669 (2004); see also MCL 768.29;
MCR 2.512(C); People v Gonzalez, 256 Mich App 212, 225; 663 NW2d 499 (2003); People v
Aldrich, 246 Mich App 101, 124-125; 631 NW2d 67 (2001). Even so, defendant’s general claim
that the trial court failed to adequately instruct the jury on causation is preserved.

                   B. STANDARD OF REVIEW AND APPLICABLE LAW

       “A criminal defendant has the right to have a properly instructed jury consider the
evidence against him.” People v Rodriguez, 463 Mich 466, 473; 620 NW2d 13 (2000). As we
explained in People v Bartlett, 231 Mich App 139, 143-144; 585 NW2d 341 (1998):

       This Court reviews jury instructions as a whole to determine whether there is
       error requiring reversal. The instructions must include all the elements of the
       charged offense and must not omit material issues, defenses, and theories if the
       evidence supports them. Even if somewhat imperfect, instructions do not create
       error if they fairly present to the jury the issues tried and sufficiently protect the
       defendant’s rights. [Citations omitted.]

        In general, claims of instructional error are reviewed de novo, Bartlett, 231 Mich App at
143, but “we review for an abuse of discretion a trial court’s determination that a specific
instruction is inapplicable given the facts of the case,” People v Hartuniewicz, 294 Mich App
237, 242; 816 NW2d 442 (2011).

        “Under MCL 769.26, a preserved nonconstitutional error is not grounds for reversal
unless, after an examination of the entire cause, it affirmatively appears that it is more probable
than not that the asserted error was outcome determinative.” People v Dupree, 486 Mich 693,
710; 788 NW2d 399 (2010). “An error is deemed to have been ‘outcome determinative’ if it
undermined the reliability of the verdict.” Rodriguez, 463 Mich at 474 (citation omitted). See
also Bartlett, 231 Mich App at 143-144 (“A conviction shall not be reversed where the error is
harmless . . . . In reviewing a claim that the jury was improperly instructed, we will not reverse a
verdict or order a new trial unless, after reviewing the record, it appears to this Court that the
error resulted in a miscarriage of justice. A miscarriage of justice, or manifest injustice, occurs
when an erroneous or omitted instruction pertained to a basic and controlling issue in the case.
The defendant usually bears the burden of establishing error requiring reversal stemming from
the issuance of an inappropriate jury instruction.”) (citations omitted).2



2
  Instructional error may be “of constitutional magnitude.” See People v Carines, 460 Mich 750,
761; 597 NW2d 130 (1999). “It is structural error requiring automatic reversal to allow a jury to
deliberate a criminal charge where there is a complete failure to instruct the jury regarding any of
the elements necessary to determine if the prosecution has proven the charge beyond a
reasonable doubt.” People v Duncan, 462 Mich 47, 48; 610 NW2d 551 (2000); see also People v
Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011) (“[A] jury instruction that improperly
omits an element of a crime amounts to a constitutional error.”) However, “an instructional error

                                                -3-
        Defendant’s unpreserved claim is reviewed for plain error affecting his substantial rights.
People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). To demonstrate plain error, a
defendant must show that (1) an error occurred, (2) the error was clear or obvious, and (3) “the
plain error affected [the defendant's] substantial rights,” which “generally requires a showing of
prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Id. at 763.
Even if a defendant establishes a plain error that affected his substantial rights, “[r]eversal is
warranted only when the plain, forfeited error resulted in the conviction of an actually innocent
defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of
judicial proceedings independent of the defendant's innocence.” Id. at 763-764 (quotation marks
and citation omitted; second alteration in original).

       We have previously held that jury instructions that were somewhat deficient may
       nonetheless, when viewed as a whole, have sufficed to protect a defendant’s rights
       when the jury would have convicted the defendant on the basis of the evidence
       regardless of the instructional error. If the evidence related to the missing element
       was overwhelming and uncontested, it cannot be said that the error affected the
       defendant’s substantial rights or otherwise undermined the outcome of the
       proceedings. [People v Kowalski, 489 Mich 488, 506; 803 NW2d 200 (2011)
       (citations omitted).]

                                         C. ANALYSIS

        “Involuntary manslaughter is the unintentional killing of another without malice in
combination with a specified culpable act or mental state, which includes a causation
component.” People v Tims, 449 Mich 83, 94; 534 NW2d 675 (1995) (quotation marks, citation,
and emphasis omitted). More specifically, involuntary manslaughter consists of “[a]n unlawful
act, committed with the intent to injure or in a grossly negligent manner, that proximately causes
death . . . .” People v McCoy, 223 Mich App 500, 502; 566 NW2d 667 (1997). Causation,
including factual and proximate causation, is generally an issue that is determined by the finder
of fact. See People v Feezel, 486 Mich 184, 194-196, 201-202; 783 NW2d 67 (2010); People v
McKenzie, 206 Mich App 425, 431; 522 NW2d 661 (1994).

      The causation element of involuntary manslaughter is construed “in accordance with its
common-law meaning.” Tims, 449 Mich at 94. “The common-law causation element is
comprised of two components, cause-in-fact or proximate/legal cause.” Id. at 95. Thus, to prove
regarding one element of a crime, whether by misdescription or omission, is subject to a
harmless error analysis,” id. at 54, and unpreserved constitutional errors are subject to the plain
error rule, Carines, 460 Mich at 764, 768. In sum:
       Instructional errors that omit an element of an offense, or otherwise misinform the
       jury of an offense’s elements, do not necessarily render a criminal trial
       fundamentally unfair or an unreliable vehicle for determining guilt or innocence.
       Accordingly, an imperfect instruction is not grounds for setting aside a conviction
       if the instruction fairly presented the issues to be tried and adequately protected
       the defendant’s rights. [Kowalski, 489 Mich at 501-502 (quotation marks and
       citations omitted).]


                                                -4-
causation in the criminal context of this case, the prosecution was required to show that the
defendant’s conduct was both a factual and proximate cause of Causey’s death. See Feezel, 486
Mich at 193-195. Notably,

       [i]n assessing criminal liability for some harm, it is not necessary that the party
       convicted of a crime be the sole cause of that harm, only that he be a contributory
       cause that was a substantial factor in producing the harm. The criminal law does
       not require that there be but one proximate cause of harm found. Quite the
       contrary, all acts that proximately cause the harm are recognized by the law.
       [People v Bailey, 451 Mich 657, 676; 549 NW2d 32 (1996), amended 453 Mich
       1204 (1996) (emphasis added).]

See also Tims, 449 Mich at 94-97.

        With regard to cause-in-fact, the prosecution is required to prove that but for the
defendant’s act, the victim’s death would not have occurred. See Feezel, 486 Mich at 194-195,
citing People v Schaefer, 473 Mich 418, 435-436; 703 NW2d 774 (2005); see also People v
Hudson, 241 Mich App 268, 284-285; 615 NW2d 784 (2000); People v Zak, 184 Mich App 1, 9-
11; 457 NW2d 59 (1990). With regard to proximate cause, the prosecution is required to prove
that the defendant’s act was a foreseeable cause of the death, Feezel, 486 Mich at 195, 201-202,
citing Schaefer, 473 Mich at 436; see also Zak, 184 Mich App at 11-14, meaning that the
prosecution must show that the victim’s death was a “direct and natural” consequence of the
defendant’s conduct, Schaefer, 473 Mich at 436 (quotation marks and citations omitted). As the
Michigan Supreme Court explained in Feezel, 486 Mich at 195-196:

       Proximate causation is a legal construct designed to prevent criminal liability
       from attaching when the result of the defendant's conduct is viewed as too remote
       or unnatural. If the finder of fact determines that an intervening cause supersedes
       a defendant’s conduct such that the causal link between the defendant’s conduct
       and the victim’s injury was broken, proximate cause is lacking and criminal
       liability cannot be imposed. Whether an intervening cause supersedes a
       defendant’s conduct is a question of reasonable foreseeability. Ordinary
       negligence is considered reasonably foreseeable, and it is thus not a superseding
       cause that would sever proximate causation. In contrast, “gross negligence” or
       “intentional misconduct” on the part of a victim is considered sufficient to break
       the causal chain between the defendant and the victim because it is not reasonably
       foreseeable. . . . Therefore, while a victim’s negligence is not a defense, it is an
       important factor to be considered by the trier of fact in determining whether
       proximate cause has been proved beyond a reasonable doubt. [Quotation marks,
       citations, and footnote omitted; emphasis added.]

See also Schaefer, 473 Mich at 436-438.

       Defendant is correct that the trial court did not specifically instruct the jury that the
prosecution must prove both factual and proximate causation, and that the jury could not be
expected to understand from the instructions provided by the court that the prosecution was
required to prove both factual and proximate causation. See Feezel, 486 Mich at 203 (noting that

                                               -5-
a jury cannot be expected to understand, without specific instruction, that “cause” is a legal term
of art and, therefore, the prosecution is required to prove both factual and proximate causation);
Schaefer, 473 Mich at 441 (“[T]he trial court erred because the word ‘cause’ . . . is a legal term
of art normally not within the common understanding of jurors, and thus, simply reading the
statute to the jury was insufficient. The jury could not be expected to understand that the statute
required the prosecutor to prove both factual causation and proximate causation.”). Providing an
instruction in accordance with M Crim JI 16.15,3 as requested by defendant, would have made
the jury aware that both factual and proximate causation were required to find that defendant
“caused” Causey’s death.

        On appeal, however, defendant now claims that the trial court’s failure to instruct the jury
in accordance with M Crim JI 16.20, regarding the victim’s contributory negligence,4 is an error
requiring reversal. Specifically, he argues that providing an instruction regarding Causey’s
contributory negligence under M Crim JI 16.20 was necessary for the jury to properly determine
factual and proximate causation in this case. M Crim JI 16.20 accounts for negligent conduct of
the victim that causes or contributes to his death. It states, “If you find that [the deceased] was
negligent, you may only consider that negligence in deciding whether the defendant’s conduct
was a substantial cause of the accident.” M Crim JI 16.20. Accordingly, the instruction reflects
the law that (1) a defendant’s conduct must only be a proximate cause, or a substantial factor, of
a victim’s death in order for the defendant to have “caused” the victim’s death, and (2) the
victim’s negligence is not a defense, but is only a factor to be considered in evaluating whether
the defendant’s conduct is a proximate cause of the victim’s death. Feezel, 486 Mich at 196;
Tims, 449 Mich at 97-99. “[T]he contributory negligence of a decedent will not exonerate a
defendant of criminal responsibility, where the defendant’s negligence is a proximate cause of
the decedent’s death.” Bailey, 451 Mich at 678; Tims, 449 Mich at 97-99. Thus, an instruction
in accordance with M Crim JI 16.20 is appropriate when there is evidence suggesting that
negligent conduct of the victim may be relevant to the determination of whether the defendant
proximately caused the victim’s death. Cf. Hartuniewicz, 294 Mich App at 249-250 (indicating
that there must be evidence in the record supporting a proposed instruction that is not an essential
element of the charged offense).


3
    M Crim JI 16.15 provides:
         [There may be more than one cause of death.] It is not enough that defendant’s
         act made it possible for the death to occur. In order to find that the death of
         [name deceased] was caused by the defendant, you must find beyond a reasonable
         doubt that the death was the natural or necessary result of the defendant’s act.
The use note accompanying the instruction explains that the “instruction is designed for use
where there is an issue as to whether the act of the defendant caused death, or whether death was
caused by some intervening cause.”
4
  The use note for M Crim JI 16.15 provides, “Where the conduct of the deceased may have
caused or contributed to death, give M Crim JI, 16.20.” Additionally, the use note for M Crim JI
16.20 states, “This instruction is for use when involuntary manslaughter or negligent homicide is
charged.”


                                                -6-
        Notably, it is within a trial court’s discretion to determine whether a specific instruction
is applicable under the particular facts of a case. Dupree, 486 Mich at 702. A trial court would
act reasonably in declining to give M Crim JI 16.20 if there is no evidence from which the trier
of fact could reasonably infer that the victim’s conduct was an intervening cause that superseded
the defendant’s conduct and broke the causal link between the defendant’s conduct and the
victim’s injury. See Feezel, 486 Mich at 195-196; Hartuniewicz, 294 Mich App at 249-250.

        Even in crediting defendant’s version of the incident, the evidence in this case did not
support an instruction concerning Causey’s alleged contributory negligence in grabbing for the
gun. Bartlett, 231 Mich App at 143-144. Accordingly, defendant is unable to demonstrate a
plain error affecting his substantial rights, as there is no basis for concluding that the trial court’s
omission of this instruction affected the outcome of the trial. See Carines, 460 Mich at 763-764.

        Defendant brought a loaded gun into Parker’s house knowing that Causey, who was
acting aggressively, did not want him to come inside. Causey and defendant engaged in a
dispute regarding who would proceed down the stairs first, and defendant pulled out his loaded
gun. Causey “rushed” at defendant, reached for the gun, and grabbed defendant’s arm. The two
men began “struggling” and “tussling” over the gun, and, while both men’s hands were on the
gun, the gun discharged accidentally or unintentionally, directly causing Causey’s death.5 Given
this evidence, there is no question that defendant’s direct participation in the incident was a
cause-in-fact of the gunshot that caused Causey’s death. See Feezel, 486 Mich at 193-195;
Schaefer, 473 Mich at 435-436; Zak, 184 Mich App at 9-14. There is no dispute that Causey’s
death was the result of the gunshot wound, and this wound would not have occurred but for
defendant’s act of pulling out the loaded gun, which prompted Causey to approach defendant and
struggle for control of the gun.

        More importantly, the record includes no basis for concluding that Causey’s acts of
rushing toward defendant and grabbing for the gun constituted a sufficient “intervening cause
[that] supersede[d] . . . defendant’s conduct” and broke “the causal link between the defendant’s
conduct and the victim’s injury,” so that “proximate cause is lacking and criminal liability cannot
be imposed.” Feezel, 486 Mich at 195-196. There can be no dispute as to whether Causey’s
death was a “direct and natural,” or a foreseeable, result of defendant’s act of pulling out the
loaded gun during the altercation, Feezel, 486 Mich at 195, 201-202; Schaefer, 473 Mich at 438,
or whether defendant’s conduct was a substantial cause of Causey’s gunshot-related death,
Bailey, 451 Mich at 676; Tims, 449 Mich at 96-97.

       The linchpin in the superseding cause analysis . . . is whether the intervening
       cause was foreseeable based on an objective standard of reasonableness. If it was
       reasonably foreseeable, then the defendant’s conduct will be considered a
       proximate cause. If, however, the intervening act by the victim or a third party
       was not reasonably foreseeable—e.g., gross negligence or intentional


5
  Defendant denied that he knowingly put his hand on the trigger or deliberately shot Causey,
and he did not know how the gun was discharged. There was no testimony that Causey fired the
gun.


                                                  -7-
       misconduct—then generally the causal link is severed and the defendant's conduct
       is not regarded as a proximate cause of the victim’s injury or death. [Schaefer,
       473 Mich at 437-438.]

        Given the evidence in this case, we cannot conclude that Causey’s acts of rushing toward
defendant and grabbing for the gun were unforeseeable. Instead, we find it highly foreseeable
that an individual in Causey’s situation, faced with a gun displayed during an altercation, would
(1) perceive the danger presented by the gun, (2) fear that defendant might use the gun against
him, and (3) react by attempting to disarm defendant by grabbing for the gun, thereby prompting
a struggle for control of the gun. Furthermore, it is undoubtedly foreseeable that such a struggle
could result in the discharge of a loaded gun. Therefore, given the objective foreseeability of
Causey’s conduct, his acts of rushing toward defendant and grabbing for the gun cannot
constitute an intervening, superseding cause sufficient to break the causal chain between
defendant’s conduct and Causey’s death that would eliminate defendant’s criminal responsibility
for the death. Feezel, 486 Mich at 193-195; Schaefer, 473 Mich at 437-438.

        A “merely . . . contributory cause of death, in addition to the defendant’s conduct,” is not
sufficient to cut off criminal liability. Bailey, 451 Mich at 678-681. Defendant’s conduct did not
have to be the proximate cause of the victim’s death for criminal liability to attach. Instead, his
conduct only needed to be a proximate cause, i.e., a substantial factor in producing the harm.
Bailey, 451 Mich at 676; Tims, 449 Mich at 95-97. Again, “the contributory negligence of a
decedent will not exonerate a defendant of criminal responsibility, where the defendant’s
negligence is a proximate cause of the decedent’s death.” Bailey, 451 Mich at 678, citing Tims,
449 Mich 83.

        For all of these reasons, the evidence did not support an additional instruction in
accordance with M Crim JI 16.20 regarding Causey’s alleged contributory negligence, and the
trial court’s failure to provide such an instruction did not constitute a plain error affecting
defendant’s substantial rights. See Carines, 460 Mich at 763-764.

        We note that even though defendant broadly characterizes his claim on appeal by stating
that the trial court failed to adequately instruct the jury on the issue of proximate causation, the
gravamen of his claim is that the instructions provided by the trial court were insufficient on the
issue of proximate cause because they failed to instruct the jury to take into account the role of
Causey’s conduct in his own death as an “intervening cause” that broke the causal connection
between defendant’s actions and Causey’s death. We find it especially noteworthy that defendant
does not contend that his conduct would have been insufficient on its own to constitute a
proximate cause of Causey’s death. For example, he does not contend that, without considering
Causey’s conduct, “the death is so remote from the defendant’s conduct that it would be unjust to
permit conviction.” Tims, 449 Mich at 95. Accordingly, defendant has not identified any further
error in the trial court’s instructions on the issue of proximate causation, and we need not further
consider whether the trial court adequately instructed the jury on the issue of causation.

         Nevertheless, we note that defendant’s constitutional rights were protected in this case, as
the trial court provided an instruction that stated all of the elements of involuntary manslaughter
in accordance with M Crim JI 16.10. See People v Duncan, 462 Mich 47, 48; 610 NW2d 551
(2000); Kowalski, 489 Mich at 503. The trial court also instructed the jury on defendant’s theory

                                                -8-
of self-defense. See Bartlett, 231 Mich App at 143-144. Again, reversal is not warranted by the
court’s failure to provide any supplemental or additional instructions on the issue of proximate
causation, whether under M Crim JI 16.15 or M Crim JI 16.20, as the only rational view of the
evidence is that defendant’s conduct was the proximate cause of Causey’s death. See id.
Therefore, under the circumstances of this case, we conclude that the instructions provided by
the trial court, “[e]ven if somewhat imperfect, . . . fairly present[ed] to the jury the issues tried
and sufficiently protect[ed] the defendant’s rights.” Id.

                                        III. CONCLUSION

        Defendant is not entitled to a new trial based on the trial court’s failure to further instruct
the jury on the issue of proximate causation.

       Affirmed.

                                                               /s/ David H. Sawyer
                                                               /s/ Henry William Saad
                                                               /s/ Michael J. Riordan




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