            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 22, 2019
               Plaintiff-Appellee,

v                                                                  No. 344003
                                                                   Wayne Circuit Court
MARK GLENN WASHINGTON,                                             LC No. 17-010174-01-FC

               Defendant-Appellant.


Before: BECKERING, P.J., and SAWYER and CAMERON, JJ.

PER CURIAM.

       Defendant appeals his jury-trial convictions of second-degree murder, MCL 750.317, and
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.
Defendant was sentenced to 240 to 480 months’ imprisonment for second-degree murder and
two years’ imprisonment for felony-firearm. We affirm.

       On appeal, defendant argues that there was insufficient evidence of his malicious intent to
sustain his conviction for second-degree murder, that the trial court abused its discretion by
admitting autopsy photographs and photographs of Dawn Washington (the victim) in the
hospital, and that his sentence was unreasonable and disproportionate. We disagree.

                                      I. BACKGROUND

        This matter arises from the fatal shooting of the victim. Defendant and the victim were
married for approximately 20 years. However, in September 2017, the victim decided to divorce
defendant and move to Georgia with a man whom she had been dating. On September 17, 2017,
defendant and the victim engaged in a contentious argument about their impending divorce.
When Paige Foster, the victim’s friend, FaceTimed the victim, she heard defendant and the
victim arguing and saw defendant point a handgun in the victim’s direction. Around the same
time, the victim posted a Facebook Live video on her Facebook page, which Diamond Sanders,
the victim’s neighbor, watched. The short video showed the victim standing in front of the
bathroom mirror and arguing with a man whom she believed to be defendant. Sanders tried to
show the video to her mother, Tenisha Donaldson, but the victim ended the live-stream video.
Approximately 10 minutes later, Sanders heard a loud noise, similar to a gunshot. When


                                               -1-
Donaldson looked out her front door, defendant was running toward her house. Defendant
knocked on Donaldson’s door to ask if she could call the police because he had shot the victim.

        Once police officers arrived at the victim’s house, defendant was taken into custody and
transported to the police station. During a police interview with Detective Melissa Toro,
defendant claimed that his handgun accidentally fired when he attempted to put it on a shelf
above the toilet. When police officers entered the victim’s house, they recovered a .38 Taurus
revolver from the hallway floor, which contained four live rounds and one spent cartridge. The
police also recovered one spent bullet casing. The victim was found lying on the floor, partially
inside the bathroom and partially inside the hallway. The victim had been shot in the head.
Medical personnel transported the victim to Beaumont Hospital in Dearborn. On September 19,
2017, Detective Kenneth May went to the hospital and took photographs of the victim, who was
on life support and breathing through a ventilator. The victim was pronounced dead later that
day.

        Assistant medical examiner Dr. Avneesh Gupta determined that the cause of the victim’s
death was a gunshot wound above her left eye and the manner of death was homicide. The bullet
penetrated the victim’s skull and fractured the victim’s frontal, parietal, and occipital bones. The
direction of the bullet’s trajectory “was from the front to the back . . . going from left to right and
slightly downward.” However, Dr. Gupta could not tell, with any degree of medical certainty,
whether the gunshot wound to the victim’s head was the result of an accident.

        Jeffrey Bedell, firearms and toolsmarks examiner, determined that defendant’s handgun
functioned properly, and therefore, defendant had to pull the trigger to fire the handgun.
However, it was possible for the handgun to unintentionally fire if defendant continually pressed
the trigger and then let go of the hammer.

                             II. SUFFICIENCY OF THE EVIDENCE

       Defendant argues that there was insufficient evidence to support his conviction for
second-degree murder because the prosecution failed to prove beyond a reasonable doubt that he
possessed malicious intent. We disagree.

         When reviewing a challenge to the sufficiency of the evidence, this Court reviews the
record de novo. People v Mayhew, 236 Mich App 112, 124; 600 NW2d 370 (1990). This Court
must review the evidence in a light most favorable to the prosecution, and ask whether a rational
trier of fact could find that the essential elements of the crime were proven beyond a reasonable
doubt. People v Hutner, 209 Mich App 280, 282; 530 NW2d 174 (1995). It is the role of the
fact-finder, rather than this Court, to determine the weight of the evidence and the credibility of
witnesses. People v Lee, 243 Mich App 163, 167; 622 NW2d 71 (2000). “Circumstantial
evidence and the reasonable inferences that arise from that evidence can constitute satisfactory
proof of the elements of the crime.” People v Henderson, 306 Mich App 1, 9; 854 NW2d 234
(2014). This Court resolves any evidentiary conflicts in favor of the prosecution. Id.

        For a defendant to be found guilty of second-degree murder, the prosecution must prove
the following elements: “ ‘(1) a death, (2) the death was caused by an act of the defendant, (3)
the defendant acted with malice, and (4) the defendant did not have lawful justification or excuse

                                                 -2-
for causing the death.’ ” People v Bergman, 312 Mich App 471, 487; 879 NW2d 278 (2015),
quoting People v Smith, 478 Mich 64, 70; 731 NW2d 411 (2007). “ ‘Malice is defined as the
intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and wilful
disregard of the likelihood that the natural tendency of such behavior is to cause death or great
bodily harm.’ ” Bergman, 312 Mich App at 487, quoting People v Goecke, 457 Mich 442, 464;
579 NW2d 868 (1998). Malice is shown when the defendant intended to harm or kill the victim,
or when the defendant possessed the intent to commit an act that “ ‘is in obvious disregard of
life-endangering consequences.’ ” Bergman, 312 Mich App at 487, quoting People v Werner,
254 Mich App 528, 531; 659 NW2d 688 (2002). It is often difficult to prove a defendant’s intent
and therefore, “minimal circumstantial evidence will suffice to establish the defendant’s state of
mind, which can be inferred from all the evidence presented.” People v Kanaan, 278 Mich App
594, 622; 751 NW2d 57 (2008).

       There is no dispute that defendant used a handgun to shoot and kill the victim. Defendant
argues that he cannot be guilty of second-degree murder because the fatal gunshot wound was
the result of an accidental shooting and therefore, there was insufficient evidence of his
malicious intent. Defendant claims the handgun accidentally fired when he placed it on a shelf
above the toilet.

        The prosecution presented evidence that defendant and the victim were arguing about
their impending divorce in front of Foster shortly before the shooting occurred. During Foster’s
FaceTime call with the victim, Foster saw defendant point a black handgun in the victim’s
direction. The victim also live-streamed her argument with defendant on Facebook, which was
viewed by Sanders. Moments after the Facebook video ended, Sanders heard a loud noise,
similar to a gunshot. Defendant knocked on Donaldson’s door minutes later to ask if she could
call the police because he had shot the victim. On the basis of this evidence alone, a rational trier
of fact could conclude that defendant possessed the malicious intent to kill the victim.

       Although Bedell testified that it is possible that the handgun accidentally fired when
defendant placed it on the shelf, he also testified that the handgun was functioning properly and
therefore, the shooter would have had to have pulled the trigger to fire the handgun. The
prosecution also presented evidence that there was a layer of undisturbed dust on the shelf where
defendant claimed to have placed the handgun when it fired, indicating that defendant did not put
the handgun where he claimed he did. The jury considered the evidence, heard arguments on
both theories, and determined that defendant possessed the requisite malice to be found guilty of
second-degree murder. Viewing the evidence in a light most favorable to the prosecution, there
was sufficient evidence that defendant possessed the intent to kill or harm the victim or acted in
obvious disregard of life-endangering consequences.1




1
  We also note that the trial court specifically instructed the jury that it could find defendant not
guilty of second-degree murder if it found that the victim’s death was accidental or if defendant
did not intend to pull the trigger.


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                                    III. THE PHOTOGRAPHS

       Defendant next argues that the trial court abused its discretion when it admitted the
hospital and autopsy photographs because they were irrelevant, cumulative, and prejudicial. We
disagree that the trial court abused its discretion by admitting the autopsy photographs. We
agree that the trial court abused its discretion by admitting the hospital photographs, but
conclude that reversal is unwarranted because the trial court’s error was harmless.

       At the outset, defendant has violated MCR 7.210(C) by failing to provide this Court with
the photographs that he challenges on appeal. Therefore, this Court may consider this issue
abandoned or waived. See People v Wilson, 196 Mich App 604, 615; 493 NW2d 471 (1992).

        Nevertheless, we have reviewed the record and the trial court’s decision to admit the
autopsy photographs and have determined that there was no error. This Court reviews a trial
court’s decision to admit photographic evidence for an abuse of discretion. People v Davis, 320
Mich App 484, 488; 905 NW2d 482 (2017), vacated in part on other grounds 503 Mich 984
(2019), citing People v Mills, 450 Mich 61, 76; 537 NW2d 909 (1995), mod on other grounds
450 Mich 1212 (1995), and People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001).
“ ‘An abuse of discretion occurs when the court chooses an outcome that falls outside the range
of reasonable and principled outcomes.’ ” Davis, 320 Mich App at 488, quoting People v Unger,
278 Mich App 210, 217; 749 NW2d 272 (2008). The trial court also abuses its discretion “when
it makes an error of law in the interpretation of a rule of evidence.” People v Jackson, 498 Mich
246, 257; 869 NW2d 253 (2015), citing People v Duncan, 494 Mich 713, 723; 835 NW2d 399
(2013). However, even if the trial court errs in admitting evidence, this Court presumes that the
error is not “a ground for reversal unless it affirmatively appears that, more probably than not, it
was outcome determinative—i.e., that it undermined the reliability of the verdict.” Jackson, 498
Mich at 257, citing People v Douglas, 496 Mich 557, 565-566; 852 NW2d 587 (2014) (quotation
marks omitted).

        “The ‘[g]ruesomeness’ of a photograph standing alone is insufficient to merit its
exclusion.” Davis, 320 Mich App at 488, quoting Mills, 450 Mich at 76. The autopsy
photographs were relevant to the issue of defendant’s intent and directly contradicted defendant’s
claim that the victim died by accidental shooting. Defendant’s intent was made more probable
by the nature and extent of the victim’s injuries as depicted in the autopsy photographs. People v
Gayheart, 285 Mich App 202, 227-228; 776 NW2d 330 (2009) (holding that the trial court
properly admitted photographs depicting the nature and extent of the victim’s injuries because
they were relevant to establish the defendant’s intent to kill).

        The prosecution may also admit photographs to corroborate a witness’s testimony. Mills,
450 Mich at 76. Here, the prosecution admitted the autopsy photographs to corroborate the
medical examiner’s testimony that the victim died from a gunshot wound above her left eye, and
that the fatal bullet penetrated the victim’s skull and fractured her frontal, parietal, and occipital
bones. The probative value of the autopsy photographs was not substantially outweighed by
unfair prejudice because there was no danger that the jury would give the photographs undue
weight. People v Dixon-Bey, 321 Mich App 490, 513; 909 NW2d 458 (2017). Accordingly, the
autopsy photographs were properly admitted.


                                                 -4-
        Defendant further asserts that the hospital photographs, allegedly showing the victim in
the intensive care unit and on a ventilator, were improperly admitted. In the photographs, the
victim was alive but unresponsive. Photographs of the victim in the hospital do not seem to have
“any tendency to make the existence of” defendant’s intent, more or less probable without the
evidence. MRE 401. Even if the hospital photographs were inadmissible, reversal is not
warranted because the trial court’s error was harmless in light of the overwhelming evidence of
defendant’s guilt. See People v Lukity, 460 Mich 484, 496; 596 NW2d 607 (1999) (noting that
an evidentiary error is not a basis for reversal unless it affirmatively appears that “it is more
probable than not that the error was outcome determinative.”).

                                       IV. SENTENCING

        Defendant argues that although his minimum sentence was within the guidelines range,
his sentence was unreasonable and violated the principle of proportionality. We disagree.

       “This Court is required to review for reasonableness only those sentences that depart
from the range recommended by the statutory guidelines.” People v Anderson, 322 Mich App
622, 636; 912 NW2d 607 (2018), citing People v Lockridge, 498 Mich 358, 365; 870 NW2d 502
(2015). This Court must affirm a minimum sentence that is within the recommended guidelines
range “unless there was an error in scoring or the trial court relied on inaccurate information.”
People v Schrauben, 314 Mich App 181, 196; 886 NW2d 173 (2016), citing MCL 769.34(10).
A minimum sentence that is within the recommended guidelines range is presumptively
proportionate. People v Jackson, 320 Mich App 514, 527; 907 NW2d 865 (2017), citing MCL
769.34(10). Defendant’s minimum sentence of 240 months’ imprisonment was within the
recommended guidelines range of 144 to 240 months. Defendant does not argue that there was
an error in scoring the guidelines or claim that trial court relied on inaccurate information.
Therefore, defendant’s sentence must be affirmed.

         We do not address defendant’s challenge to the validity of MCL 769.34(10). Schrauben
impliedly declared that MCL 769.34(10) is constitutional and consistent with Lockridge because
it affirmed the defendant’s sentence by strictly applying the statute. Schrauben, 314 Mich App
at 196. This Court is bound to follow Schrauben pursuant to MCR 7.215(C)(2).2

         Affirmed.

                                                           /s/ Jane M. Beckering
                                                           /s/ David H. Sawyer
                                                           /s/ Thomas C. Cameron


2
    MCR 7.215(C)(2) states:
         A published opinion of the Court of Appeals has precedential effect under the
         rule of stare decisis. The filing of an application for leave to appeal to the
         Supreme Court or a Supreme Court order granting leave to appeal does not
         diminish the precedential effect of a published opinion of the Court of Appeals.



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