            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    February 19, 2019
               Plaintiff-Appellee,

v                                                                   No. 340196
                                                                    Wayne Circuit Court
MARCUS BARHAM,                                                      LC No. 17-002250-01-FC

               Defendant-Appellant.


Before: GLEICHER, P.J., and K. F. KELLY and LETICA, JJ.

PER CURIAM.

        A jury acquitted defendant of assault with intent to murder, but convicted him of assault
with intent to do great bodily harm, carrying a concealed weapon, felon in possession of a
firearm (felon-in-possession), and possession of a firearm during the commission of a felony
(felony-firearm). Defendant contends that the prosecutor failed to sufficiently refute his claim of
self-defense and made improper statements during closing argument. He further challenges the
trial court’s jury instruction on a defendant’s duty to retreat. We affirm.

                                       I. BACKGROUND

       Defendant shot his boss, Johnie Towns, in the face during a worksite altercation.
Defendant was supposed to be hanging drywall in a second-story bedroom but instead loitered on
the house’s porch. Towns became irritated and told defendant’s coworkers, Phil Boble and
Derek Thomas, that he would not allow defendant to work the next day. Defendant testified that
he and Towns then crossed paths in the house. Towns is much larger than defendant (but also
much older), and defendant asserted that Towns “was clenching [a] box cutter.” The men argued
and parted ways.

        Defendant, Boble, and Thomas testified that defendant left the house and went outside to
the garage. Boble and Thomas heard Towns speaking to himself, colorfully threatening to attack
defendant. Towns, on the other hand, claimed that he left first and that defendant followed him
downstairs. Whoever left first, all agreed that defendant and Towns continued their argument in
the garage. At some point, Towns walked to his truck to retrieve his cell phone to call his
brother, who was in charge of the business. When he returned to the garage, defendant rushed
him.

       Defendant described that Towns “got in [his] face” and made further threatening
statements. When Towns returned from his truck, he carried a “shiny” object that looked like a
blade. Fearing for his safety, defendant claimed that he pulled his gun from his pocket. Towns
continued to approach him and so defendant fired a shot in Towns’s direction. The bullet struck
Towns in the face.

        Despite being shot, Towns tackled defendant and the men wrestled on the floor. Towns
asserted that the men grappled for defendant’s gun. Defendant contended that Towns was
attempting to stab him with a box cutter. Thomas and Boble came into the garage. They saw
Towns holding a box cutter with the blade extended; they did not see a gun. Defendant fled the
scene before Towns’s brother arrived to take him to the hospital.

                             II. SUFFICIENCY OF THE EVIDENCE

       Defendant contends that the prosecution presented insufficient evidence to support his
convictions for assault, felon-in-possession, and felony-firearm because it failed to disprove his
claim that he acted in self-defense. 1 Defendant centers his challenge, however, on his claim that
Towns was not a credible witness as defendant’s witnesses, Boble and Thomas, corroborated his
version of events, rather than Towns’s.

         We review de novo challenges to the sufficiency of the evidence, “[t]aking the evidence
in the light most favorable to the prosecution” to determine “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). We must defer to the fact finder’s assessment of witness credibility in
making our review. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992), amended
441 Mich 1201 (1992).

        “Once a defendant raises the issue of self-defense and satisfies the initial burden of
producing some evidence from which a jury could conclude that the elements necessary to
establish a prima facie defense of self-defense exist, the prosecution must exclude the possibility
of self-defense beyond a reasonable doubt.” People v Stevens, 306 Mich App 620, 630; 858
NW2d 98 (2014) (quotation marks and citation omitted). MCL 780.972(1) governs self-defense
as follows:

                  An individual who has not or is not engaged in the commission of a crime
         at the time he or she uses deadly force may use deadly force against another
         individual anywhere he or she has the legal right to be with no duty to retreat
         if . . .




1
    Defendant did not argue self-defense was a defense to carrying a concealed weapon.


                                                -2-
                 (a) The individual honestly and reasonably believes that the use of deadly
         force is necessary to prevent the imminent death of or imminent great bodily harm
         to himself or herself or to another individual.

        Towns testified that defendant shot him in the face after an argument. Immediately
before the shooting, defendant “walked into [Towns],” and Towns “pushed [defendant] off.”
While Towns did testify somewhat inconsistently about the precise moment he retrieved a box
cutter from his sweatshirt pocket, Towns unequivocally testified that the he did not pull out the
box cutter until after defendant shot him. Only defendant testified that Towns attacked him with
a box cutter before defendant shot Towns. Thomas and Boble were not present when the
shooting occurred, and their testimony that Towns was the original aggressor was limited to
overhearing Towns threaten defendant before the shooting. Thomas overheard Towns angrily
say, “[defendant] don’t [sic] know who the f*** he talkin’ to, and he’ll f*** [defendant] up.”
And Boble overheard Towns threaten to “f*** that little mother f***** up.”

        Ultimately, both the defense and the prosecution presented evidence to support their
theories on who was the initial aggressor and whether defendant had to the right to resort to
force. The jury credited Towns’s testimony and we may not interfere with that assessment.
Accordingly, we have no ground to reverse defendant’s convictions.

                            III. IMPROPER CLOSING ARGUMENTS

        Defendant further contends that the prosecutor made improper statements during closing
argument, denying him a fair trial. Defendant failed to preserve his challenges with timely
objections and our review is limited to plain error affecting defendant’s substantial rights.
People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2000). In the alternative, defendant
contends that his counsel was constitutionally ineffective as he failed to object. Defendant
sought a Ginther2 hearing from this Court, but his motion was denied. People v Barham,
unpublished order of the Court of Appeals, entered May 17, 2018 (Docket No. 340196). As we
agree that a remand is unnecessary, defendant’s challenge in this regard is limited to errors
apparent on the existing record. People v Horn, 279 Mich App 31, 37-38; 755 NW2d 212
(2008).

        Defendant contends that the prosecutor twice implied that she had additional information
upon which the jury could rely. First, the prosecutor argued that defendant’s testimony was not
credible because he did not tell his family members certain details about the assault. The
prosecutor reminded the jury that she played a recorded jailhouse telephone call between
defendant and his mother. During that conversation, defendant told his mother that Towns had a
box cutter inside the house and that Towns’s “veins were popping out of his head” while he
yelled at defendant. However, during the recording, defendant did not tell his mother that Towns
retrieved a box cutter from his truck or that Towns attempted to slice his throat. On appeal,
defendant argues that the prosecutor presented only three minutes of one conversation, omitting



2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                -3-
the other 26 minutes of that call and all other calls defendant made from jail, exaggerating her
implication that defendant was untruthful.

       Second, defendant challenges the prosecutor’s argument in rebuttal that defendant
expected the jury “to believe . . . that after [67] years Mr. Towns just lost his dang mind” and
decided “to get a box cutter, wildly attack [defendant] and slice his throat.” This was improper,
defendant contends, because defendant never claimed that Towns lost his mind and presented no
argument or evidence impugning Towns’s mental health. The prosecutor thereby improperly
implied that she knew and understood Towns’ character, beyond that shown at trial.

        These arguments are more correctly characterized as the prosecutor disparaging
defendant’s credibility and bolstering that of the victim. It is improper for the prosecutor to
vouch for the credibility of her witnesses or to imply special knowledge about a witness’s
veracity. People v Bennett, 290 Mich App 465, 476; 802 NW2d 627 (2010). However, we must
consider the prosecutor’s statements in context after reviewing the parties’ arguments as a whole.
People v Solloway, 316 Mich App 174, 201; 891 NW2d 255 (2016).

         The prosecutor did not improperly imply that defendant’s testimony was incredible. The
prosecutor selected a portion of defendant’s recorded jailhouse conversations to play for the jury.
During that conversation, defendant gave his mother information that was inconsistent with his
trial testimony. The prosecutor cross-examined defendant about those inconsistencies. The
prosecutor could therefore refer to those inconsistencies in her closing argument.

        And the prosecutor did not improperly vouch for Towns’s veracity. The prosecutor did
not suggest that she had secret knowledge about Towns’s mental health. Rather, the prosecutor
relied on a colloquialism—“lost his dang mind”—to discredit defendant’s self-defense theory.
This interpretation is supported by the prosecutor’s next sentence, inquiring, “Does that make
common sense and reasonableness [sic] or is it more likely, makes more common sense, that
[Towns] went to go get his phone” to call his business partner about his employee’s poor
behavior.

       As the prosecutor did not make improper arguments, counsel had no ground to object and
cannot be deemed ineffective for failing to do so. See People v Ericksen, 288 Mich App 192,
201; 793 NW2d 120 (2010). And we have no ground to grant defendant relief.

                            IV. INCORRECT JURY INSTRUCTION

        Defendant finally contends that the trial court incorrectly instructed the jury that he “had
a duty to retreat from the sudden, violent attack,” and that defense counsel was ineffective for
failing to object. However, defendant mischaracterizes the court’s instruction. The court’s
instruction on self-defense spanned more than three pages of the transcript. In relation to a
person’s duty to retreat, the court stated:

       A person can use deadly force in self-defense only where it is necessary to do so.
       If the Defendant could have safely retreated, but did not do so you may consider
       that fact in deciding whether the Defendant honestly and reasonably believed he
       needed to use deadly force in self-defense.


                                                -4-
             However, a person is never required to retreat if attacked in his own home
      nor if a person reasonably believes that an attacker is about to use a deadly
      weapon, nor if a person is subject to a sudden fierce and violent attack. Further, a
      person is not required to retreat if the person, A, has not or is not engaged in the
      commission of a crime at the time the deadly is used and, B, has a legal right to be
      where a person is at that time and, C, has an honest and reasonable belief that the
      use of deadly force is necessary to prevent imminent death . . . or great bodily
      harm of the person of another.

              . . . An individual who is not or is not engaged in the commission of the
      crime at the time he or she uses deadly force may use deadly force against another
      individual anywhere he or she has the legal right to be with no duty to retreat if
      either of the following applies; the individual honestly and reasonably believes
      that the deadly force is necessary to prevent the imminent death of or imminent
      great bodily harm to himself or herself or to another individual. [Emphasis
      added.]

      The court’s instruction is exactly opposite of defendant’s description on appeal.
Accordingly, his claim completely lacks merit.

      We affirm.



                                                           /s/ Elizabeth L. Gleicher
                                                           /s/ Kirsten Frank Kelly
                                                           /s/ Anica Letica




                                              -5-
