            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 9, 2020
               Plaintiff-Appellee,

v                                                                  No. 345146
                                                                   Wayne Circuit Court
MARCUS BROWN,                                                      LC No. 18-001397-01-FC

               Defendant-Appellant.


Before: CAMERON, P.J., and CAVANAGH and SHAPIRO, JJ.

PER CURIAM.

      A jury convicted defendant of multiple felonies including assault with intent to commit
murder (AWIM), MCL 750.83, assault with intent to do great bodily harm less than murder
(AWIGBH), first-degree home invasion, MCL 750.110a(2), unlawful imprisonment, MCL
750.349b, and weapons charges. Defendant appeals. We vacate his conviction and sentence for
AWIGBH, but affirm in all other respects.

                                           I. FACTS

       Octavia Evans, the mother of defendant’s children, broke up with defendant in December
2017 because she believed he had been unfaithful. Around 10:30 p.m. on January 29, 2018,
Evans and her friend, Michael Reed, were at the apartment of another friend in Detroit. Evans
and Reed heard a knock at the front door, looked through the peephole, and saw defendant.
Promptly thereafter, three gunshots were fired through the back door of the apartment, one
wounding Reed in the side. Defendant then entered the home through the back door and Evans
and Reed ran upstairs. Evans hid in a bedroom closet; Reed hid in the bathroom with the door
closed. After speaking with Reed through the bathroom door, defendant fired two shots through
the door, one striking Reed in the leg. Reed then heard defendant say to Evans that if she did not
come out, he was going to kill Reed.

      Evans opened the closet and, against her will, defendant took her to a duplex at 12244
Burt Road. One side of the duplex was abandoned. Defendant took Evans to a home on the
abandoned side where he held her against her will for several hours. After she was released,



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Evans called the police. Several hours later, the police went to the home of defendant’s friend,
Sasha Coward, and arrested defendant who was found hiding behind a refrigerator in the kitchen.

                       II. SUFFICIENCY OF THE EVIDENCE—AWIM

     Defendant argues that there was insufficient evidence of an intent to kill to convict him of
AWIM. We disagree.1

       “The elements of [AWIM] are (1) an assault, (2) with an actual intent to kill, (3) which, if
successful, would make the killing murder.” People v Ericksen, 288 Mich App 192, 195-196;
793 NW2d 120 (2010). Intent to kill may be inferred from any facts in evidence. Id. at 196.

        Here, there was evidence that defendant shot through the back door of the apartment
three times, striking Reed once in the side. After Reed ran upstairs and hid in the bathroom,
defendant—knowing Reed was already wounded and hiding in the bathroom—fired two shots
through the bathroom door, wounding Reed in his leg. He then made an explicit threat to kill
Reed. A reasonable jury could certainly infer an intent to murder from these actions.

               III. INSTRUCTIONAL ERROR—FLIGHT JURY INSTRUCTION

       Defendant argues that the trial court erred by giving a flight instruction because there was
no evidence to support it. We disagree with defendant’s view of the evidence.2

       At the end of defendant’s trial, the court instructed the jury as follows:

               There has been some evidence that the defendant tried to run away or hide
       after the alleged crime.

               This evidence does not prove guilt.

               A person may run or hide for innocent reasons, such as panic, mistake, or
       fear.

               However, a person may also run or hide because of consciousness of guilt.

              You must decide . . . whether the evidence is true; and, if true, whether it
       shows that the defendant had a guilty state of mind.



1
  “When reviewing a defendant’s challenge to the sufficiency of the evidence, we review the
evidence in a light most favorable to the prosecutor to determine whether any trier of fact could
find the essential elements of the crime were proven beyond a reasonable doubt.” People v
Williams, 294 Mich App 461, 471; 811 NW2d 88 (2011) (quotation marks and citation omitted).
2
 Unpreserved claims of instructional error are reviewed for plain error. People v Matuszak, 263
Mich App 42, 48; 687 NW2d 342, 354 (2004).


                                                -2-
        We agree with defendant that to give a particular instruction to the jury, there must be
evidence to support it. People v Johnson, 171 Mich App 801, 804; 430 NW2d 828 (1988). In
this case the evidence readily supports the instruction. Defendant does not dispute that he was
hiding behind the refrigerator when the police arrived at Coward’s home in an attempt to avoid
detection. “The term ‘flight’ has been applied to such actions as fleeing the scene of the crime,
leaving the jurisdiction, running from the police, resisting arrest, and attempting to escape
custody.” People v Coleman, 210 Mich App 1, 4; 532 NW2d 885 (1995). We see no material
difference between fleeing the crime scene to avoid detection and hiding from the police for the
same purpose. Both are indicative of a guilty conscience. And because the instruction was
proper, defendant’s claim of ineffective assistance in failing to object to it is without basis. See
People v Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004).

                                  IV. GREAT BODILY HARM

          Defendant’s brief argued that the jury should have been instructed on AWIGBH as a
lesser included offense of AWIM and that counsel’s failure to seek such an instruction
constituted ineffective assistance of counsel. At oral argument, however, both parties recognized
that the jury had in fact been instructed on, and convicted defendant of, AWIGBH, though not as
a lesser included offense. Given this understanding, defendant withdrew his original argument
and asserted instead that the AWIGBH conviction should be vacated because the defendant’s
actions were presented as a single continuous assault. The prosecution agreed that this relief
should be granted. We agree with the parties that the conviction of AWIGBGH should be
vacated because by convicting defendant of two offenses, one included in the other, the verdict
improperly imposed multiple punishments.3 See People v Herron, 464 Mich 593, 609-610; 628
NW2d 528 (2001); People v Gibbs, 299 Mich App 473, 491; 830 NW2d 821 (2013).

       Finally, defendant argues that the trial court erred by making his AWIGBH sentence run
consecutively to his felony-firearm sentence. However, this is a moot issue given that we vacate
defendant’s AWIGBH conviction and sentence.




3
  “The elements of [AWIGBH] are: (1) an attempt or threat with force or violence to do corporal
harm to another (an assault), and (2) an intent to do great bodily harm less than murder.” People
v Brown, 267 Mich App 141, 147; 703 NW2d 230 (2005) (quotation marks and citation omitted).
“The elements of [AWIM] are: (1) an assault, (2) with an actual intent to kill, (3) which, if
successful, would make the killing murder.” Id. (quotation marks, citation, and footnote
omitted). AWIGBH is a necessarily included lesser offense of AWIM. Id. at 150-151. These
offenses “are distinguishable from each other by the intent required of the actor at the time of the
assault.” Id. at 148. AWIM requires an actual intent to kill that is not a part of AWIGBH. Id. at
151.




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       Affirmed in part, reversed in part, and remanded for correction of the judgment of
sentence. We do not retain jurisdiction.



                                                      /s/ Thomas C. Cameron
                                                      /s/ Mark J. Cavanagh
                                                      /s/ Douglas B. Shapiro




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