                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 21, 2016
               Plaintiff-Appellee,

v                                                                   No. 325935
                                                                    Wayne Circuit Court
DARNELL HENRY CHEATHAM,                                             LC No. 13-010689-FC

               Defendant-Appellant.


Before: MURPHY, P.J., and SAAD and BORRELLO, JJ.

PER CURIAM.

        Defendant appeals his jury trial convictions of first-degree felony-murder, MCL
750.316(1)(b), first-degree arson, MCL 750.72(1)(a) (arson of a dwelling house), torture, MCL
750.85, first-degree child abuse, MCL 750.136b(2), and mutilation of a human body, MCL
750.160.1 The trial court sentenced defendant to concurrent sentences of life in prison without
parole for the felony-murder conviction, 7 to 20 years for the arson conviction, life in prison for
the torture conviction, 10 to 15 years for the first-degree child abuse conviction, and 23 months
to 10 years for the mutilation of a human body conviction. We vacate defendant’s torture
conviction and affirm in all other respects.

        Defendant’s convictions arise from the death of the five-year old victim. The victim was
discovered missing from her home on Burlingame Street in Detroit on July 24, 2011, and her
burned body was found later that day in an abandoned house on Waverly Street, which is 14
streets away. According to Dr. Leigh Hlavaty, the medical examiner, the victim died of
asphyxiation related to being strangled before her body was burned.

      Defendant challenges the sufficiency of the evidence to support his convictions of felony-
murder, first-degree child abuse, and torture. As this Court stated in People v Lane, 308 Mich
App 38, 57; 862 NW2d 446 (2014):



1
  The jury also convicted defendant of second-degree murder, MCL 750.317, but the trial court
vacated that conviction at sentencing. These convictions stem from defendant’s second jury
trial. The first trial resulted in a mistrial after the jury was unable to reach a verdict.


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               A claim that the evidence was insufficient to convict a defendant invokes
       that defendant’s constitutional right to due process of law. This Court reviews de
       novo a defendant’s challenge to the sufficiency of the evidence supporting his or
       her conviction. We review the evidence in a light most favorable to the
       prosecution to determine whether a rational trier of fact could find that the
       prosecution had proved the crime’s elements beyond a reasonable doubt.
       [Citations omitted.]

When reviewing a challenge to the sufficiency of the evidence,

       [a]ll conflicts in the evidence must be resolved in favor of the prosecution and we
       will not interfere with the jury’s determinations regarding the weight of the
       evidence and the credibility of the witnesses. Circumstantial evidence and
       reasonable inferences arising from that evidence can constitute satisfactory proof
       of the elements of a crime. [B]ecause it can be difficult to prove a defendant’s
       state of mind on issues such as knowledge and intent, minimal circumstantial
       evidence will suffice to establish the defendant’s state of mind, which can be
       inferred from all the evidence presented. [People v Bosca, 310 Mich App 1, 16;
       871 NW2d 307 (2015), appeal held in abeyance ___ Mich ___; 872 NW2d 492
       (2015) (citations and quotation marks omitted).]

“Even in a case relying on circumstantial evidence, the prosecution need not negate every
reasonable theory consistent with the defendant’s innocence, but need merely introduce evidence
sufficient to convince a reasonable jury in the face of whatever contradictory evidence the
defendant may provide.” People v Hardiman, 466 Mich 417, 423-424; 646 NW2d 158 (2002).
Nor is the prosecution required to prove a negative. Id. at 424. “[I]t is for the trier of fact, not
the appellate court, to determine what inferences may be fairly drawn from the evidence and to
determine the weight to be accorded those inferences,” and there is no prohibition on building
inference upon inference. Id. at 428.

      “To evaluate the sufficiency of the evidence, we review the evidence in the context of the
elements of the charged crimes.” Bosca, 310 Mich App at 16.

                            I. FIRST-DEGREE FELONY-MURDER

               The elements of felony murder are (1) the killing of a person, (2) with the
       intent to kill, do great bodily harm, or create a high risk of death or great bodily
       harm with the knowledge that death or great bodily harm was the probable result,
       (3) while committing, attempting to commit, or assisting in the commission of an
       enumerated felony. First-degree child abuse is an enumerated felony. [Lane, 308
       Mich App at 57-58 (citations omitted).]

       Defendant does not dispute that the victim was killed, but argues that there was no
evidence that he was the person who killed her. “[I]dentity is an element of every offense.”
People v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008). Quanita Smith, who was
defendant’s girlfriend, identified defendant in a video that was taken at a gas station near the
Waverly house at approximately 7:44 a.m. Notably, this individual in the video purchased $2

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worth of gas but only pumped $0.41 worth. Additionally, Terrena Long testified that she saw
defendant before 8:00 a.m. walk up the street carrying an Arizona Iced Tea can. She noted that
defendant had “a funny walk,” which she described as “not a limp but a dip in the walk.” She
saw defendant walk inside the vacant house on Waverly with the can and then shortly thereafter
leave with nothing in his hands. Approximately 10 minutes later, Long saw that the house was
smoking. There also was evidence introduced that defendant received a bullet wound to his knee
two months before this incident, which caused him to walk with a limp of some kind thereafter.2
All of this evidence, although circumstantial, was sufficient for the jury to find that defendant
went into the Waverly house with an Arizona Iced Tea can full of gasoline and set the fire, which
burned the victim’s body.

       In addition to the evidence that defendant burned the victim’s body on the morning of
July 24, 2011, Quanita testified that she saw defendant with the victim on top of him in the bed
sometime in the early morning of July 24, 2011. Based on the victim’s movement, the fact that
she was sitting on defendant’s private area, and the placement of defendant’s hands on the
victim’s waist, the jury reasonably could infer that, despite the lack of any DNA evidence
implicating defendant, defendant was engaged in sexual contact with the victim.

       Based on the reasonable inference that defendant had some kind of sexual contact with
the victim that morning and the circumstantial evidence that he later burned her body, the
question is whether it can reasonably be inferred that defendant was the person who killed the
victim by strangling or smothering her. The record is devoid of evidence, however, regarding
where or when the victim was killed, how she was taken to the house on Waverly, or whether she
was alive at that time.

        Although there is no direct evidence that defendant killed the victim, the inescapable
inference from defendant’s sexual contact with the victim, which placed him as the last person
with the victim alive, and his subsequent burning of her (already deceased) body shortly
thereafter, is that defendant also killed the victim in the interim. Defendant’s setting of the fire
can be considered as evidence of defendant’s guilt of murder because it demonstrates that
defendant was attempting to destroy evidence. See People v Lytal, 119 Mich App 562, 575; 326
NW2d 559 (1982). Although the evidence established that defendant did not have a car, and it
was not clear exactly how defendant transported the victim to the house, this is not an element of
any of the offenses. In any event, there was evidence that a white Crown Victoria was seen in
the early morning hours at the Waverly house before the fire was set, and there was evidence that
defendant was associated with a white Crown Victoria. Therefore, we hold that there was
sufficient evidence to support the finding that defendant was the one who killed the victim.

                              II. FIRST-DEGREE CHILD ABUSE

       Defendant also argues that there was insufficient evidence of the intent element of first-
degree child abuse. MCL 750.136b(2) provides the following: “A person is guilty of child


2
  While defendant testified that at the time of the victim’s death, he no longer had the limp, the
jury was free to not believe this assertion.


                                                -3-
abuse in the first degree if the person knowingly or intentionally causes serious physical or
serious mental harm to a child. Child abuse in the first degree is a felony punishable by
imprisonment for life or any term of years.” Thus, “[t]he elements of first-degree child abuse are
(1) the person, (2) knowingly or intentionally, (3) causes serious physical or mental harm to a
child.” People v Gould, 225 Mich App 79, 87; 570 NW2d 140 (1997) (footnote omitted).

        “The plain language of the statute requires that to be convicted of first-degree child
abuse, a person knowingly or intentionally causes serious physical harm or serious mental harm
to a child.” People v Maynor, 470 Mich 289, 295; 683 NW2d 565 (2004) (citations and
quotation marks omitted). “ ‘Serious physical harm’ means any physical injury to a child that
seriously impairs the child’s health or physical well-being, including, but not limited to, brain
damage, a skull or bone fracture, subdural hemorrhage or hematoma, dislocation, sprain, internal
injury, poisoning, burn or scald, or severe cut.” MCL 750.136b(1)(f).

       Dr. Hlavaty testified that the victim died of asphyxiation related to being strangled and
possibly smothered. The victim had five hemorrhages, or areas of bleeding, in her neck. Dr.
Hlavaty was certain that strangulation was part of the victim’s death, but she could not exclude
smothering as a cause. Dr. Hlavaty testified that in order to strangle someone, pressure must “be
constantly maintained tightly on the neck” for 2 or 2-1/2 minutes before the person would die.

       Viewing the evidence in the light most favorable to the prosecution, the jury could have
found that pressure was applied to the victim’s neck long enough to cause the hemorrhages.
From these injuries, the jury could reasonably infer that defendant intended to cause, or at least
had knowledge that he was causing, internal injury to the victim. Only minimal circumstantial
evidence is required to establish intent and intent may be inferred from all the facts, including the
nature of the injuries. See Bosca, 310 Mich App at 16; People v Howard, 226 Mich App 528,
550; 575 NW2d 16 (1997) (stating that nature and extent of injuries is probative of intent).

        Defendant argues that, even accepting Andre Hall’s impeachment testimony that Quanita
said that defendant had his hand over the victim’s mouth and nose, this testimony suggests that
the death was inadvertent. Hall’s testimony was admitted for impeachment only and cannot be
used to establish the elements of the crime. Nonetheless, while Quanita’s statements perhaps
suggested that defendant lacked the intent to kill, the nature of the victim’s injuries lead to the
reasonable inference that defendant at least knowingly caused internal injury to the victim.

                                          III. TORTURE

        Defendant further argues that there was insufficient evidence to prove the elements of
torture. The statute proscribing torture, MCL 750.85(1), provides:

               A person who, with the intent to cause cruel or extreme physical or mental
       pain and suffering, inflicts great bodily injury or severe mental pain or suffering
       upon another person within his or her custody or physical control commits torture
       and is guilty of a felony punishable by imprisonment for life or any term of years.

Thus, the elements of torture are (1) the intent to cause cruel or extreme physical or mental pain
and suffering, (2) the infliction of great bodily injury or severe mental pain or suffering, and (3)
the victim is within the person’s custody or physical control.
                                                -4-
        Defendant’s argument relates to the mens rea element, which requires that the
prosecution prove that defendant intended to cause cruel or extreme physical or mental pain and
suffering. And with regard to this element, “ ‘[c]ruel’ means brutal, inhuman, sadistic, or that
which torments.” MCL 750.85(2)(a). Even if defendant intended to cause internal injury when
he strangled or suffocated the victim, there is nothing to suggest that he intended to cause the
victim pain, let alone “cruel or extreme” pain. Also, relying on the nature of the victim’s injuries
alone does not lead to an inference that defendant intended to cause cruel or extreme physical
pain and suffering. Accordingly, we vacate defendant’s conviction for torture.

       We vacate defendant’s torture conviction but affirm his remaining convictions.



                                                             /s/ William B. Murphy
                                                             /s/ Henry William Saad
                                                             /s/ Stephen L. Borrello




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