                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 March 28, 2017
              Plaintiff-Appellee,

v                                                                No. 330747
                                                                 Muskegon Circuit Court
TRENT MICH HUMPHREYS-MCPHERSON,                                  LC No. 15-066031-FC

              Defendant-Appellant.


Before: STEPHENS, P.J., and SHAPIRO and GADOLA, JJ.

PER CURIAM.

       Defendant appeals as of right his conviction of first-degree felony murder, MCL
750.316(1)(b). The trial court sentenced defendant as a third-offense habitual offender, MCL
769.11, to life imprisonment. We affirm.

                                     I. BACKGROUND

        This case arises from the homicide of Dennis McPherson, defendant’s grandfather, on
January 9, 2015. According to testimony from defendant’s then-fiancée, Kerri Crawford, she
and defendant went to Dennis’s home in the early morning hours so that defendant could ask
Dennis for money to purchase cocaine. Defendant went into Dennis’s home alone and returned
with a television that they eventually sold for cocaine. Crawford, who was given a plea deal in
exchange for her testimony, was a significant witness at trial. Over objection, she provided
testimony after a 404(b) hearing, regarding other breaking and entering crimes committed by
defendant and herself against her grandfather. Crawford’s grandfather corroborated her
testimony by both acknowledging the breaking and entry and identifying knives stolen from him
which were found at defendant’s residence.

        Numerous other laypersons and law enforcement officers provided testimony. Forensic
evidence was admitted regarding the victim’s blood being found on a hatchet recovered secreted
in the residence of defendant. Multiple witness offered testimony regarding a 10-year-old
conflict between defendant and Dennis over the insurance proceeds from the death of
defendant’s father. Several of defendant’s jail phone calls and letters were admitted into
evidence that included admissions against interest. Defendant did not testify.

       The parties contested the jury instructions. The prosecution requested and was given a
non-standard jury instruction on the element of malice. Defendant requested but was denied


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instructions on manslaughter. Both instructional issues were briefed and argued in open court.
Subsequent to his conviction defendant raises two issues on appeal.

                                         II. MRE 404(B)

       Defendant first argues that the trial court erred in allowing the submission of prior bad-
acts evidence. Specifically, defendant argues that the trial court should not have allowed the
introduction of evidence that he and Crawford committed two home invasions against
Crawford’s grandfather two weeks before Dennis’s murder. We disagree.

                                 A. STANDARD OF REVIEW

        “The decision whether evidence is admissible is within the trial court’s discretion and
should only be reversed where there is a clear abuse of discretion.” People v Starr, 457 Mich
490, 494; 577 NW2d 673 (1998). An abuse of discretion exists if a trial court’s decision falls
outside the range of principled outcomes. People v Feezel, 486 Mich 184, 192; 783 NW2d 67
(2010). “However, where decisions regarding the admissibility of evidence involve preliminary
questions of law such as whether a rule of evidence or statute precludes admissibility, our review
is de novo.” People v Layher, 464 Mich 756, 761; 631 NW2d 281 (2001). An evidentiary error
only merits reversal where, after an examination of the entire record, “it is more probable than
not that the error was outcome determinative.” People v Lukity, 460 Mich 484, 495-496; 596
NW2d 607 (1999); see also MCL 769.26.

                                         B. ANALYSIS

       At trial, Crawford’s grandfather testified that, on two occasions, his home was broken
into and items were stolen. These home invasions occurred approximately two weeks before
Dennis’s murder. Knives collected from defendant and Crawford’s bedroom after Dennis’s
death matched those stolen from Crawford’s grandfather. Crawford also testified that she and
defendant were responsible for the home invasions and that they had stolen the property in order
to exchange it for cocaine.

        Generally, relevant evidence is admissible. MRE 402; People v Roper, 286 Mich App
77, 91; 777 NW2d 483 (2009). Relevant evidence is “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” MRE 401. Relevant evidence may be
excluded, however, if its probative value is substantially outweighed by the danger of unfair
prejudice. MRE 403. “Assessing probative value against prejudicial effect requires a balancing
of several factors, including the time required to present the evidence and the possibility of
delay, whether the evidence is needlessly cumulative, how directly the evidence tends to prove
the fact for which it is offered, how essential the fact sought to be proved is to the case, the
potential for confusing or misleading the jury, and whether the fact can be proved in another
manner without as many harmful collateral effects.” People v Blackston, 481 Mich 451, 462;
751 NW2d 408 (2008). The determination of whether the probative value of the evidence is
substantially outweighed by its prejudicial effect is best left to the trial court’s contemporaneous
assessment of the evidence. People v Waclawski, 286 Mich App 634, 670; 780 NW2d 321
(2009).



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       Despite its relevancy, evidence of a person’s character is generally not admissible to
prove the propensity of a defendant to act accordingly. MRE 404(a). Michigan excludes such
evidence for substantive purposes “to avoid the danger of conviction based upon a defendant’s
history of other misconduct.” People v Golochowicz, 413 Mich 298, 308; 319 NW2d 518
(1982). However, MRE 404(b) provides that evidence of other crimes, wrongs, or acts may be
admissible for other purposes:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the character
       of a person in order to show action in conformity therewith. It may, however, be
       admissible for other purposes, such as proof of motive, opportunity, intent,
       preparation, scheme, plan, or system in doing an act, knowledge, identity, or
       absence of mistake or accident when the same is material, whether such other
       crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
       conduct at issue in the case. [MRE 404(b)(1).]

For evidence of other acts to be admissible under MRE 404(b), it must be (1) offered for a proper
purpose; (2) be relevant under MRE 402; and (3) not have a probative value substantially
outweighed by its potential for unfair prejudice. People v VanderVliet, 444 Mich 52, 55; 508
NW2d 114 (1993).

        Evidence of misconduct similar to the charged crimes is relevant to demonstrate that the
charged crimes occurred so long as the misconduct and charged crimes “are sufficiently similar
to support an inference that they are manifestations of a common plan, scheme, or system.”
People v Sabin (After Remand), 463 Mich 43, 63-64; 614 NW2d 888 (2000). “There must be
such a concurrence of common features that the charged acts and the other acts are logically seen
as part of a general plan, scheme, or design.” People v Steele, 283 Mich App 472, 479; 769
NW2d 256 (2009). “The evidence of uncharged acts needs only to support the inference that the
defendant employed the common plan in committing the charged offense.” People v Hine (After
Remand), 467 Mich 242, 253; 650 NW2d 659 (2002). Although general similarity alone is not
sufficient to establish a common plan, scheme, or system, “the plan need not be unusual or
distinctive.” Sabin (After Remand), 463 Mich at 66 (quotation marks and citation omitted).

        We conclude that the prior acts and the instant case bear sufficient similarity to suggest a
common plan, scheme, or system. See Hine (After Remand), 467 Mich at 253. In both
instances, defendant and Crawford broke into a relative’s home to acquire money or property to
exchange for cocaine. Although the initial home invasions involved an unoccupied home and
the home invasion involving Dennis’s murder involved an occupied home, it is not required that
the prior acts and the charged crimes share every detail. Sabin (After Remand), 463 Mich at 64,
66. Given the “concurrence of common features” between the prior acts and the charged crime,
a logical inference exists that the crimes in this case were part of a common plan or system of
breaking into relatives’ homes to steal property to sell or exchange for drugs. Steele, 283 Mich
App at 479. Moreover, a trial court does not abuse its discretion in admitting other-acts evidence
where “reasonable persons could disagree on whether the charged and uncharged acts contained
sufficient common features to infer the existence of a common system used by defendant in
committing the acts.” Sabin (After Remand), 463 Mich at 67. For these reasons, we conclude
that the other-acts evidence was admitted for a proper purpose. Moreover, the evidence was



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logically relevant as to defendant’s intent and motive in entering Dennis’s home, as well as to
whether defendant committed the charged acts as part of a common plan, scheme, or system.

        In addition to being offered for a proper purpose and being relevant under MRE 402, the
testimony must also satisfy the balancing test of MRE 403. See id. All relevant evidence is
prejudicial; only unfairly prejudicial evidence should be excluded. People v Mills, 450 Mich 61,
75; 537 NW2d 909 (1995). The fact that defendant was previously involved with breaking and
entering into a relative’s home in order to steal property to exchange for drugs was highly
probative because it was relevant to the issue of whether defendant broke into Dennis’s home
and stole his property as part of a common plan, scheme, or system. The evidence was also
probative of defendant’s intent and motive in visiting Dennis in order to acquire the means of
obtaining more cocaine. As to prejudicial effect, Crawford’s and her grandfather’s testimonies
regarding the December 2014 home invasions were a brief portion of a seven-day trial and were
not particularly detailed or inflammatory. See Blackston, 481 Mich at 462. Additionally, any
danger of unfair prejudice was minimized by the trial court’s limiting instruction, in which the
trial court specified that the evidence could only be considered in determining motive, intent, or
whether defendant used a plan, system, or characteristic scheme that had been used before or
since. See VanderVliet, 444 Mich at 74-75. Therefore, the probative value of the evidence was
not substantially outweighed by the danger of unfair prejudice. MRE 403. As such, the other-
acts evidence was properly admitted under MRE 404(b).

                                 III. INSTRUCTIONAL ISSUES

       Defendant next argues that the trial court erred when it declined to issue a jury instruction
on voluntary manslaughter and, also erred in giving a non-standard instruction defining malice.
We disagree.

                                  A. STANDARD OF REVIEW

        Issues of law arising from jury instructions are reviewed de novo on appeal, but a trial
court’s determination whether an instruction was applicable to the facts of the case is reviewed
for an abuse of discretion. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006). Reversal
based on instructional error is merited only where the defendant demonstrates “that the asserted
instructional error resulted in a miscarriage of justice.” People v Dupree, 486 Mich 693, 702;
788 NW2d 399 (2010), citing Lukity, 460 Mich at 493-494. A miscarriage of justice occurs
where “it is more probable than not that a different outcome would have resulted without the
error.” Lukity, 460 Mich at 495.

        “In reviewing a trial court’s jury instructions, this Court examines the instructions as a
whole, and, even if there are some imperfections, there is no basis for reversal if the instructions
adequately protected the defendant’s rights by fairly presenting to the jury the issues to be tried.”
People v Dumas, 454 Mich 390, 396; 563 NW2d 31 (1997). However, defendant objected only
to the non-standard second-degree murder instruction, not the non-standard first-degree felony
murder instruction. As such, defendant’s argument is unpreserved. We review unpreserved jury
instruction challenges for plain error affecting the defendant’s substantial rights. People v
Aldrich, 246 Mich App 101, 124-125; 631 NW2d 67 (2001). Therefore, defendant may obtain
relief only if “(1) error . . . occurred, (2) the error was plain, i.e., clear or obvious, (3) and the


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plain error affected substantial rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130
(1999).

                            B. VOLUNTARY MANSLAUGHTER

        “A criminal defendant has the right to have a properly instructed jury consider the
evidence against him.” People v Rodriguez, 463 Mich 466, 472; 620 NW2d 13 (2000)
(quotation marks and citation omitted). Jury instructions must include all of the elements of the
crimes charged and “must not exclude material issues, defenses, and theories if the evidence
supports them.” People v Canales, 243 Mich App 571, 574; 624 NW2d 439 (2000). Where the
evidence supports a lesser included offense and a party so requests, an instruction on the lesser
included offense should be given. People v Pouncey, 437 Mich 382, 387; 471 NW2d 346
(1991). Because voluntary manslaughter is a lesser included offense of murder, “when a
defendant is charged with murder, an instruction for voluntary and involuntary manslaughter
must be given if supported by a rational view of the evidence.” People v Mendoza, 468 Mich
527, 541; 664 NW2d 685 (2003).

       Voluntary manslaughter occurs where a defendant “act[s] out of a temporary excitement
induced by an adequate provocation and not from the deliberation and reflection that marks the
crime of murder.” People v Townes, 391 Mich 578, 590; 218 NW2d 136 (1974). In other
words, “homicide may be reduced to voluntary manslaughter if the circumstances . . .
demonstrate that malice was negated by adequate and reasonable provocation, that the killing
was done in the heat of passion, and that there was not a lapse of time during which a reasonable
person could control his passions.” People v Etheridge, 196 Mich App 43, 55; 492 NW2d 490
(1992). Provocation, for purposes of voluntary manslaughter, is only “that which would cause
the reasonable person to lose control.” Pouncey, 437 Mich at 389 (emphasis added).

        The trial court did not err in refraining from instructing the jury as to voluntary
manslaughter because the evidence does not support a voluntary manslaughter instruction.
Evidence of a 10-year-old monetary dispute between defendant and Dennis regarding
defendant’s father’s life insurance is not provocation sufficient to cause a reasonable person to
lose control and murder. See id. Moreover, even if defendant had presented evidence of
adequate provocation, a voluntary manslaughter instruction still would have been unsupported by
the evidence because defendant had a significant amount of time for his passions to cool. See
Etheridge, 196 Mich App at 55. Defendant was in Dennis’s home for 30 minutes. Further,
defendant chopped Dennis with a hatchet approximately 30 times in the head, neck, trunk, and
extremities, and defensive wounds on Dennis’s body indicate that he survived some initial blows
and attempted to fight defendant. During this extensive struggle, defendant would have had
sufficient time to reconsider his actions. Because the evidence heard at trial would not support
finding defendant guilty of voluntary manslaughter, the trial court was correct in refusing the
requested instruction. See Pouncey, 437 Mich at 387.

                     C. NON-STANDARD INSTRUCTION ON MALICE

        Finally, defendant argues that the trial court erred by providing the jury a non-standard
instruction on the element of malice of first-degree felony murder. We disagree.




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         MCR 2.512(D)(2) requires that pertinent portions of the Michigan Model Criminal Jury
Instructions must be given if “(a) they are applicable, (b) they accurately state the applicable law,
and (c) they are requested by a party.” Because defendant failed to specifically request the
reading of M Crim JI 16.4, the standard jury instruction for first-degree felony murder, the trial
court was not required to read the standard jury instruction. See MCR 2.512(D)(2)(c).
Therefore, the non-standard jury instruction is sufficient so long as it fairly presented the issues
to be tried and sufficiently protected the defendant’s rights. See Dumas, 454 Mich 396.

        The trial court instructed the jury that it must find that defendant had one of the three
following states of mind in order to find defendant guilty of first-degree felony murder: “(a) he
intended to kill Dennis McPherson, or (b) he intended to do great bodily harm to Dennis
McPherson, or (3) he acted in wanton and willful disregard of the likelihood that the natural
tendency of such behavior was to cause death or great bodily harm.” Defendant argues that the
standard jury instruction should have been given instead. The standard jury instruction defining
malice states in relevant part: “[he / she] intended to kill, or [he / she] intended to do great
bodily harm to [name deceased], or [he / she] knowingly created a very high risk of death or
great bodily harm knowing that death or such harm would be the likely result of [his / her]
actions.” M Crim JI 16.4(3). The malice element found in M Crim JI 16.4(3) reflects our
Supreme Court’s statement in People v Dykhouse, 418 Mich 488, 495; 345 NW2d 150 (1984),
defining the third form of malice as “the intent to create a very high risk of death or great bodily
harm with the knowledge that death or great bodily harm is the probable result.” The definition
of malice given by the trial court comports with the definition of malice set forth in People v
Aaron, 409 Mich 672, 728; 299 NW2d 304 (1980), decided four years before Dykhouse. Aaron
and Dykhouse have both been cited for their respective definitions of malice,1 and neither has
been overruled. Because the trial court instructed the jury on the definition of malice as set forth
in an opinion of our Supreme Court that has not been overruled, we conclude that the trial court
did not plainly err in declining to use the standard jury instruction.

         Insofar as defendant’s argument implies that the trial court erred by failing to define
“wanton and willful,” we similarly note that defendant did not request such an instruction and, in
the absence of a request for such an instruction and in the absence of any dispute as to malice at
trial, the trial court did not commit plain error in failing to define these terms. See Carines, 460
Mich at 763. Nevertheless, even if this Court were to determine that the trial court improperly
instructed the jury with a nonstandard jury instruction, defendant is still not entitled to reversal
because the error was harmless. See MCR 2.613(A) (“An error . . . or defect in anything done or
omitted by the court or the parties is not ground for granting a new trial, for setting aside a
verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to

1
 Using Aaron’s malice definition: People v Robinson, 475 Mich 1, 14; 715 NW2d 44 (2006);
People v Datema, 448 Mich 585, 601; 533 NW2d 272 (1995), reh den 449 Mich 1206 (1995);
People v Fyda, 288 Mich App 446, 451; 792 NW2d 712 (2010), lv den 488 Mich 948 (2010);
People v Bailey, 207 Mich App 8, 9; 523 NW2d 798 (1994), rev’d on other grounds 451 Mich
657 (1996); People v Langworthy, 416 Mich 630, 650-651; 331 NW2d 171 (1982).
       Using Dykhouse’s malice definition: People v Reese, 491 Mich 127, 154-155; 815
NW2d 85 (2012); People v Gillis, 474 Mich 105, 138; 712 NW2d 419 (2006); Mendoza, 468
Mich at 540; People v Ramsey, 422 Mich 500, 517; 375 NW2d 297 (1985).


                                                -6-
take this action appears to the court inconsistent with substantial justice.”) (emphasis added). In
the present case, defendant chopped Dennis with a hatchet approximately 30 times, and
defensive wounds on Dennis’s body indicate that Dennis survived some initial blows. The
extensive violence of this attack is sufficient to demonstrate malice under both the Aaron and
Dykhouse definitions, as it cannot be seriously contended in this case that defendant was not
subjectively aware that chopping a person with a hatchet in the head, neck, and torso 30 times
would cause serious bodily injury or death. Further, defense counsel argued only that defendant
was not present at the home and did not dispute that the murderer acted with malice.

       Affirmed.

                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Douglas B. Shapiro
                                                            /s/ Michael F. Gadola




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