                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 28, 2015
               Plaintiff-Appellee,

v                                                                  No. 319988
                                                                   Wayne Circuit Court
TERESA HURTADO ALVAREZ,                                            LC No. 13-005816-FC

               Defendant-Appellant.


Before: BECKERING, P.J., and CAVANAGH and SAAD, JJ.

PER CURIAM.

       Defendant, Teresa Hurtado Alvarez, appeals as of right from her jury trial convictions of
second-degree murder, MCL 750.317, and felony murder, MCL 750.316(1)(b). The trial court
sentenced defendant to life in prison without parole. We affirm, but remand for the
administrative task of correcting defendant’s judgment of sentence.

                                           I. FACTS

        Defendant’s conviction arises out of the death of Margaret Theut shortly after the
Thanksgiving holiday in 2011. Theut, the adoptive parent of defendant’s brother, also cared for
defendant, providing her with clothing, gifts, and financial assistance into her adulthood. In the
weeks prior to Theut’s disappearance, defendant told several people that Theut had passed away
and had left defendant a portion of her estate. In interviews with police, defendant admitted that
she was with Theut at her home the night of November 26, 2011, the last day Theut was seen
alive. The morning of November 27, 2011, a neighbor noticed that Theut’s gate was open, and
upon further investigation, discovered that Theut was missing, along with her car, a Chevrolet
Impala. While Theut’s neighbors were looking for Theut and her missing vehicle, defendant was
driving the vehicle, showing it to friends and claiming that she had inherited it from Theut.
Theut’s purse, which contained her identification, credit cards, and cash, was in the trunk of the
car. In the early morning hours of the following day, a witness saw what appeared to be Theut’s
car stuck in the mud and marsh in a field near the northern end of Rouge Park, a park located
around one-quarter mile from Theut’s home. In addition, the witness saw what appeared to be a
black tarp approximately 50 feet away from the car, near a line of trees. Approximately six
months later, Theut’s body was recovered underneath a tarp in a marshy area at the northern end
of the park. By this time, all that remained of Theut’s body was a partial skeleton, and a precise



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cause of death could not be established. But based on the circumstances, Theut’s death was
ruled a homicide.

                                           II. DISCUSSION

                              A. SUFFICIENCY OF THE EVIDENCE

        Defendant first argues that the prosecutor did not present sufficient evidence to support
her convictions of felony murder and second-degree murder. We review de novo challenges to
the sufficiency of the evidence to determine if any rational trier of fact could determine that the
essential elements of the crime were proven beyond a reasonable doubt. People v Lockett, 295
Mich App 165, 180; 814 NW2d 295 (2012). All conflicts in the evidence are resolved in favor
of the prosecution. Id.

          As our Supreme Court stated in People v Smith, 478 Mich 292, 318-319; 733 NW2d 351
(2007):

          The elements of first-degree felony murder are: (1) the killing of a human being,
          (2) with the intent to kill, to do great bodily harm, or to create a very high risk of
          death or great bodily harm with knowledge that death or great bodily harm was
          the probable result [i.e., malice], (3) while committing, attempting to commit, or
          assisting in the commission of any of the felonies specifically enumerated in MCL
          750.316(1)(b), here larceny. [Quotation marks and citation omitted; alteration in
          original.]

        The prosecution charged defendant as a principal and under an aiding and abetting
theory, and the trial court instructed the jury accordingly. In People v Riley (On Remand), 468
Mich 135, 140; 659 NW2d 611 (2003), our Supreme Court explained the elements required to
prove felony murder under an aiding and abetting theory:

          To prove felony murder on an aiding and abetting theory, the prosecution must
          show that the defendant (1) performed acts or gave encouragement that assisted
          the commission of the killing of a human being, (2) with the intent to kill, to do
          great bodily harm, or to create a high risk of death or great bodily harm with
          knowledge that death or great bodily harm was the probable result, (3) while
          committing, attempting to commit, or assisting in the commission of the predicate
          felony.

         The prosecution presented sufficient evidence for a rational jury to convict defendant of
felony murder, either as a principal or under an aiding and abetting theory. Weeks before Theut
disappeared, defendant began telling those close to her that Theut had committed suicide and that
she inherited a portion of Theut’s estate. Defendant went so far as to dress for and attend a fake
funeral for Theut. Defendant acknowledged that she was with Theut in her home the night of her
disappearance. Her cellular telephone records revealed that she placed several telephone calls to
Theut that afternoon, and that she did so in a manner that blocked the incoming number from
appearing on caller ID. Dontaye Hardeman, defendant’s boyfriend, testified that defendant had
left his mother’s home the last day that Theut was seen alive, and that he expected defendant to
return that night. However, she never did, and when defendant appeared the following morning,
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she was driving Theut’s Impala, explaining to others that she had inherited the vehicle from
Theut. Theut’s purse, including her identification, credit cards, and money, was in the trunk.
Hardeman saw defendant take “hundreds” of dollars from the purse. In the early morning hours
of the following day, a witness saw what appeared to be Theut’s automobile stuck near a marshy
area of Rouge Park, as well as what appeared to be a tarp, which was left near the car. The
witness believed that the driver of the car was a six-foot-tall male. The car had to be towed out
of the area that morning, and within hours, defendant was in possession of Theut’s car, having it
professionally cleaned. Despite this cleaning, when the vehicle was recovered by police, it was
still partially covered in mud and grass.

         Soon after her arrest, defendant told Hardeman that Theut was dead. At the time, Theut’s
body had not been recovered, and it was not known if she was dead or only missing. A rational
juror could conclude that defendant knew Theut was dead at this time because she was present
when Theut died. After her arrest, defendant asked Kimberly Brooks, Hardeman’s mother, to
hide the Impala for her and keep anyone else from accessing it, further demonstrating that
defendant was conscious of her own guilt. Defendant gave multiple explanations of her
whereabouts the night Theut disappeared. When asked during a police interview to explain what
happened at Theut’s home on the night of her disappearance, defendant stated that it was her
fault, that she might as well die in prison, and that had she not gone to Theut’s home that night,
Theut would still be alive. In another police interview, which was attended by Janet Jenkins,
defendant’s former legal guardian, defendant indicated to Jenkins that if she told the police what
happened to Theut, Jenkins would be in danger of physical harm. While defendant maintained
that she had not killed Theut, her conduct and statements provided strong circumstantial
evidence of her guilt.

        Blood and DNA evidence also supported defendant’s felony murder conviction.
Investigators found blood on pillows and a blanket in Theut’s home belonging to an unidentified
female. While DNA analysis was unable to confirm that this blood belonged to Theut, this was
because there were no known samples of Theut’s DNA to which it could be compared.
However, given the circumstances, a rational juror could conclude that the blood on the pillow
and blanket belonged to Theut. DNA from the same person was found on a pair of gloves left
inside Theut’s Impala, along with that of two other individuals, indicating that two people were
involved with Theut’s death, or at a minimum, disposing of her body in Rouge Park. While the
person who disposed of Theut’s body was clearly not defendant, from the remaining
circumstances, such as defendant’s possession of Theut’s vehicle, her presence in Theut’s home
the night of her disappearance, and her admission that Theut’s death was her fault, a rational
juror could infer that defendant was one of at least two people involved with Theut’s death.
Taking the evidence as a whole, a rational juror could conclude that defendant intended to kill
Theut, given that she told others weeks before Theut’s disappearance that Theut had died, that
she either killed Theut herself or assisted another person in doing so, and that she did so in the
process of committing a larceny, that being stealing Theut’s vehicle and purse. Accordingly, the
prosecution presented sufficient evidence to support defendant’s felony murder conviction, either
as having murdered Theut herself or by assisting another person in doing so. See Smith, 478
Mich at 318-319; Riley, 468 Mich at 140.

       Defendant essentially argues that her convictions cannot stand because the prosecutor did
not present direct evidence linking her to Theut’s death. While it is true that the prosecutor never

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presented evidence of anyone witnessing defendant kill Theut or participating in her murder,
“[t]he prosecution need not present direct evidence linking a defendant to the crime in order to
provide sufficient evidence to support a conviction . . . .” People v Kissner, 292 Mich App 526,
534; 808 NW2d 522 (2011). Rather, “[c]ircumstantial evidence and reasonable inferences drawn
from it may be sufficient to prove the elements of the crime.” People v Wilkens, 267 Mich App
728, 738; 705 NW2d 728 (2005). “It is for the trier of fact, not the appellate court, to determine
what inferences may be fairly drawn from the evidence and to determine the weight to be
accorded to those inferences.” People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002).
As such, when reviewing claims based on sufficiency of the evidence, we view all the evidence
in a light most favorable to the prosecution and draw all reasonable inferences in its favor. Id.
As explained, using reasonable inferences drawn from the evidence presented, a rational juror
could conclude that defendant, either directly or by assisting another person, committed felony
murder. Defendant’s argument lacks merit.

        Defendant also challenges the sufficiency of the evidence with regard to her second-
degree murder conviction. She was charged with and convicted of the lesser offense of second-
degree murder arising out of Theut’s death. While defendant does not expressly raise a double
jeopardy challenge, we note that “[m]ultiple murder convictions arising from the death of a
single victim violate double jeopardy.” People v Clark, 243 Mich App 424, 429; 622 NW2d 344
(2000). “Thus, defendant cannot properly be convicted of both first-degree murder and the lesser
included offense of second-degree murder for the death of a single victim.” Id. The proper
remedy in such a situation is to vacate the second-degree murder conviction. Id. At sentencing,
the trial court recognized as much and explained that the sentences for defendant’s convictions
would merge, necessitating only a single sentence for felony murder. Thus, it appears that the
trial court intended that defendant stand convicted only of felony murder. However, while
noting that the convictions merge, defendant’s judgment of sentence reflects two convictions and
two sentences of life without parole. We remand for the administrative task of amending
defendant’s judgment of sentence to vacate the second-degree murder conviction and sentence.

                         B. AIDING AND ABETTING INSTRUCTION

         Defendant argues that the trial court erred when it instructed the jury regarding the theory
of aiding and abetting. We disagree. Claims of instructional error involving a question of law
are reviewed de novo, but a trial court’s determination that a jury instruction applies to the facts
of a particular case is reviewed for an abuse of discretion. People v Dupree, 486 Mich 693, 702;
788 NW2d 399 (2010). “The defendant bears the burden of establishing that the asserted
instructional error resulted in a miscarriage of justice.” Id. An abuse of discretion occurs “when
the trial court chooses an outcome falling outside [the] principled range of outcomes.” People v
Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).

        “A criminal defendant has the right to have a properly instructed jury consider the
evidence against him [or her].” People v Rodriguez, 463 Mich 466, 472; 620 NW2d 13 (2000)
(citation and quotation omitted). When a trial court is asked to give a particular instruction, the
instruction must be given if it is supported by the evidence. Id. “To place the issue of aiding and
abetting before a trier of fact, the evidence need only tend to establish that more than one person
committed the crime, and that the role of a defendant charged as an aider and abettor amounts to
something less than the direct commission of the offense.” People v Vaughn, 186 Mich App

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376, 382; 465 NW2d 365 (1990). See also Riley, 468 Mich at 140 (explaining the elements of
felony murder under an aiding and abetting theory). It was not necessary for the prosecutor to
demonstrate precisely who other than defendant participated in the crime. Vaughn, 186 Mich
App at 382. Rather, it was sufficient for the prosecutor to present evidence tending to show that
“some individual was a guilty principal.” Id.

        There was ample evidence suggesting that another individual was involved in Theut’s
death. A man was seen driving what appeared to be Theut’s car and leaving a tarp in Rouge Park
shortly after Theut’s disappearance. DNA evidence taken from gloves found inside the Impala
demonstrated that at least three people had come in contact with the gloves. One of these three
was likely Theut, leading to a conclusion that two people used the gloves, either when killing
Theut or when disposing of her body. Defendant also indicated that if she told police everything
that happened, Jenkins would be in danger. This statement would suggest that someone who was
not in police custody was also involved in the murder, someone who had threatened defendant if
she implicated him or her. Thus, there was evidence indicating that someone other than
defendant was involved in Theut’s murder.

        The evidence also demonstrated that defendant’s role in Theut’s death may have been
less than directly committing the murder. While describing Theut’s death as being her own fault,
defendant maintained that she had not actually killed Theut. Defendant acknowledged being
present in Theut’s home the night she disappeared. She admitted to having keys to Theut’s
house, which showed no signs of forced entry. The day after Theut disappeared, defendant had
possession of Theut’s car, a car that appeared to have been used by someone else to dispose of
Theut’s body and then returned to defendant’s possession. In a conversation that took place
shortly after her arrest, defendant stated that Theut was dead. Because Theut’s body had not
been found, defendant’s knowledge of this fact would likely only have come from her having
been involved in Theut’s murder. Taken together, this evidence suggested that if, as she told
police, defendant did not kill Theut herself, she assisted someone else in committing the murder
by granting him or her access to Theut’s home and providing a vehicle with which to dispose of
the body. Because the evidence supported a theory that defendant aided and abetted an unknown
principal in the murder, Vaughn, 186 Mich App at 382, once the instruction was requested, the
trial court was required to provide it, Rodriguez, 463 Mich at 472, and the trial court did not
abuse its discretion by doing so.

       Affirmed, but remanded for the administrative task of amending defendant’s judgment of
sentence in accordance with this opinion. We do not retain jurisdiction.

                                                           /s/ Jane M. Beckering
                                                           /s/ Mark J. Cavanagh
                                                           /s/ Henry William Saad




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