                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     April 25, 2017
               Plaintiff-Appellee,

v                                                                    No. 326890
                                                                     Wayne Circuit Court
TERRELL MARK CAJAR,                                                  LC No. 14-000303-02-FC

               Defendant-Appellant.


Before: MURPHY, P.J., and MURRAY and M. J. KELLY, JJ.

PER CURIAM.

        Following a bench trial, defendant was convicted of second-degree murder, MCL
750.317, and possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. He was sentenced to 18 years and 9 months to 30 years’ imprisonment for the murder
conviction and two years’ imprisonment for the felony-firearm conviction. Defendant appeals as
of right. We affirm.

        The shooting victim was shot in the back of the head during an exchange of gunfire
between two groups of people on opposite ends of a city street. There was an initial eruption of
gunfire just outside of the victim’s home in which a motor vehicle was shot up, and shortly
thereafter, there was the full barrage of gunfire that resulted in the victim’s death. Numerous
witnesses took the stand, including friends, acquaintances, neighbors, and family members of the
victim and defendant, and the testimony was often conflicting. We have thoroughly reviewed all
of the testimony and recognize the discrepancies in the various accounts of the shootings, which
certainly can be explained, in part, by the chaotic and frightening nature of the events that
unfolded. That said, there was testimony that defendant fired a handgun in the air and at a motor
vehicle during the initial eruption of gunfire in front of the victim’s house and that defendant was
firing a handgun from his home toward the general area of the victim and others during the
subsequent exchange of gunfire. There was also testimony that defendant’s brother was firing in
the same direction with some type of rifle.

        The trial court acquitted defendant of first-degree murder, but found him guilty of
second-degree murder on the prosecution’s aiding and abetting theory, concluding that defendant
had the intent to provide assistance in an act that reflected wanton and willful disregard of the
likelihood that the natural tendency of the behavior was to cause death or great bodily harm. The
court also found defendant guilty of felony-firearm.

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        On appeal, defendant frames his argument as a challenge to the trial court’s finding that
defendant had the requisite mens rea for second-degree murder. First, defendant contends that,
with respect to the initial gunfire, the natural and probable consequence of damaging property,
i.e., shooting at the vehicle, was not the shooting of another person. The second and final
component to defendant’s argument is that the evidence failed to establish beyond a reasonable
doubt that defendant discharged a firearm or participated in the subsequent gun battle that
resulted in the victim’s death. This argument does not go directly to the issue of intent, but
rather questions the court’s finding that defendant continued to wield and use a firearm during
the exchange of gunfire. Given the nature of the argument, defendant apparently and implicitly
concedes that the requisite mens rea or intent would be sufficiently established if defendant
indeed fired a gun from his home in the gun battle.

       In People v Kanaan, 278 Mich App 594, 618-619; 751 NW2d 57 (2008), this Court
addressed a sufficiency argument in the context of a bench trial, observing:

               We review claims of insufficient evidence de novo. When ascertaining
       whether sufficient evidence was presented in a bench trial to support a conviction,
       this Court must view the evidence in a light most favorable to the prosecution and
       determine whether a rational trier of fact could find that the essential elements of
       the crime were proven beyond a reasonable doubt. This Court will not interfere
       with the trier of fact's role of determining the weight of the evidence or the
       credibility of witnesses. Circumstantial evidence and reasonable inferences that
       arise from such evidence can constitute satisfactory proof of the elements of the
       crime. All conflicts in the evidence must be resolved in favor of the prosecution.
       [Citations omitted.]

A trial court’s factual findings in a bench trial are reviewed for clear error, which occurs “if the
reviewing court is left with a definite and firm conviction that the trial court made a mistake.”
People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012) (citation omitted). “[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.” Kanaan, 278 Mich App at 622
(citations omitted).

        The elements of second-degree murder are: “(1) a death, (2) caused by an act of the
defendant, (3) with malice, and (4) without justification or excuse.” People v Henderson, 306
Mich App 1, 9; 854 NW2d 234 (2014) (citations and quotation marks omitted). Malice can be
established by showing either an intent to kill, an intent to cause great bodily harm, or an intent
to do an act in wanton and willful disregard of the likelihood that the natural tendency of such
behavior is to cause death or great bodily harm. Id. at 9-10. With respect to aiding and abetting,
as statutorily authorized under MCL 767.39, the prosecution’s theory is to impose vicarious
criminal liability for accomplices. People v Robinson, 475 Mich 1, 5-6; 715 NW2d 44 (2006).
Aiding and abetting includes “any type of assistance given to the perpetrator of a crime by words
or deeds that are intended to encourage, support, or incite the commission of that crime.” People
v Moore, 470 Mich 56, 63; 679 NW2d 41 (2004). To support a conviction under an aiding and
abetting theory, the prosecution must prove that (1) the crime charged was committed by the
defendant or another person, (2) the defendant performed acts or gave encouragement which

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assisted in the commission of the crime, and (3) the defendant intended the commission of the
crime or had knowledge that the principal intended its commission at the time the defendant gave
aid and encouragement. People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). The
third element is also satisfied if the charged offense is a “natural and probable consequence of
the commission of the intended offense.” Robinson, 475 Mich at 15.

        Assuming for the sake of argument that defendant’s initial gunfire into the air and at the
vehicle, standing alone, did not suffice to establish the conviction, the additional evidence
showing him and his brother discharging firearms from their home as part of a gun battle was
more than adequate to support the conviction. The evidence reflected that defendant initiated
and then aided and abetted in the shooting melee, along with an intent to provide assistance and
otherwise engage in acts of wanton and willful disregard of the likelihood that the natural
tendency of such behavior was to cause death or great bodily harm. The natural and probable
consequence of defendant firing his weapon as he did was that a death would result. Again, as to
the exchange of gunfire and not the initial shooting, defendant merely argues that the evidence
was insufficient to show that he displayed or fired a gun, all the while acknowledging the
testimony to the contrary, which defendant characterizes as questionable and lacking credibility.
However, it was for the trial court, sitting as the trier of fact in the bench trial, to assess the
credibility of the witnesses and the weight of the evidence, and not us on appeal. Kanaan, 278
Mich App at 619. Reversal is unwarranted.

       For his second claim of error, defendant maintains that the trial court erred by assessing
25 points for offense variable (OV) 6, MCL 777.36, and that the sentence imposed by the trial
court was unreasonable. In People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013), our
Supreme Court clarified the proper review standards, stating:

              Under the sentencing guidelines, the circuit court's factual determinations
       are reviewed for clear error and must be supported by a preponderance of the
       evidence. Whether the facts, as found, are adequate to satisfy the scoring
       conditions prescribed by statute, i.e., the application of the facts to the law, is a
       question of statutory interpretation, which an appellate court reviews de novo.

“We review for an abuse of discretion whether a sentence is proportionate to the seriousness of
the offense.” People v Armisted, 295 Mich App 32, 51; 811 NW2d 47 (2011).

        OV 6 addresses a defendant’s intent to kill or injure another individual and requires the
trial court to assess 25 points if the defendant “had unpremeditated intent to kill, the intent to do
great bodily harm, or created a very high risk of death or great bodily harm knowing that death
or great bodily harm was the probable result.” MCL 777.36(1)(b). Sitting as the finder of fact in
defendant’s bench trial, the trial court found defendant guilty of second-degree murder for aiding
and abetting in the victim’s death, concluding that his participation in, and instigation of, the
shootout created a high risk of death or great bodily harm. For the reasons already explained, the
trial court did not err in its findings regarding defendant’s intent and participation. Thus, the
court properly assessed 25 points for OV 6.

      Finally, defendant contends that his sentence was unreasonable in light of his age,
minimal prior record, educational level, and the fact that the evidence suggested that the victim

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was killed by friendly fire. Although defendant frames the argument in terms of reasonableness,
he is essentially challenging his sentence on the basis of proportionality. Defendant was
sentenced within the appropriate minimum sentence guidelines range. In light of defendant’s
failure to establish a scoring error or to show inaccurate sentencing information, MCL
769.34(10) would generally mandate affirmance of the sentence. However, a proportionality
argument implicates constitutional protections, and so we must continue with our analysis.

       “A sentence within the guidelines range is presumptively proportionate, and a
proportionate sentence is not cruel or unusual.” People v Bowling, 299 Mich App 552, 558; 830
NW2d 800 (2013). A defendant can only overcome the presumption by presenting unusual
circumstances that would render a presumptively proportionate sentence disproportionate. Id.
Here, defendant has not presented us with unusual circumstances such that we can find his
sentence of 18 years and 9 months to 30 years’ imprisonment disproportionate. Resentencing is
unwarranted.

       Affirmed.



                                                          /s/ William B. Murphy
                                                          /s/ Christopher M. Murray
                                                          /s/ Michael J. Kelly




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