                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 19, 2015
               Plaintiff-Appellee,

v                                                                  No. 319640
                                                                   Muskegon Circuit Court
CRAIG REGINALD LEWIS,                                              LC No. 12-062459-FC

               Defendant-Appellant.


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

PER CURIAM.

       Defendant appeals as of right his jury trial convictions for 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 as a fourth habitual offender, MCL 769.12, to 39 to 63 years’
imprisonment for the murder conviction and to 2 years’ imprisonment for the felony-firearm
conviction. We affirm.

        Defendant was at the house of Frank Harris in Muskegon Heights on the night of August
15, 2012. Defendant was in the possession of a firearm that night. Several other people were
also at Harris’s house that night. Most of the people there were outside, milling about the yard
and drinking alcohol, but Harris, his fiancé Kourtney Perry, and Dominique Smith were inside
the house. At around midnight, Derico Ruff and a man known as Kool-Aid had an altercation
outside the home. Davitta Jones entered Harris’s house and told Harris about the altercation.
Harris proceeded outside, followed by Smith, and Harris attempted to stop the fighting.
Defendant told Harris and Smith that they could not stop the fighting. Defendant then began to
argue with Smith, and Harris pleaded with defendant and Smith not to fight. Defendant
responded by telling Harris, “you can get it too boy.” Defendant next turned to his friend Tarnaz
Johnson, who had defendant’s gun, and asked Johnson to give him the gun. Harris then fled,
running toward his house in an effort to get away from defendant. Defendant fired his gun
multiple times in Harris’s direction. Harris was found shot in the head just inside his house near
the side door on the south side of the home. Harris died of this wound on August 28, 2012.
Russell Karsten, a Michigan State Trooper, found seven bullet holes in the south side of the
house, two of which were in the side door. While there was some evidence that conflicted with a
portion of the events described in the preceding passage, the passage is nevertheless fully
supported by record testimony.


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        Defendant admitted that he shot his gun in Harris’s direction, but claimed that he did so
in self-defense. Defendant testified that after Harris told defendant and Smith to stop fighting,
Harris shoved defendant, and then Harris returned to his home. According to defendant, he then
retrieved his gun from Johnson and harmlessly fired one shot into the air. Next, defendant
headed to his car to leave, but Harris began shooting at defendant from the side door of the
house. Defendant fell down by the rear of his vehicle and returned fire in Harris’s direction.
Defendant claimed that he discharged his gun solely in self-defense. Defendant testified that he
was shot in the leg. After the shooting, defendant drove to Detroit. He visited a friend and then
traveled to his brother Stanley Rayford’s house, arriving there at about 9:00 or 10:00 a.m. on the
morning after the shooting. Trooper Karsten testified that there was damage to the rear of
defendant’s automobile consistent with the car having been hit with gunfire from the outside, but
Karsten could not determine whether this damage occurred on the night of the incident.

        On appeal, defendant first argues that there was insufficient evidence showing that he did
not act in self-defense when shooting at Harris. We review de novo the issue regarding whether
there was sufficient evidence to sustain a conviction. People v Lueth, 253 Mich App 670, 680;
660 NW2d 322 (2002). In reviewing the sufficiency of the evidence, this Court must view the
evidence – whether direct or circumstantial – in a light most favorable to the prosecutor and
determine whether a rational trier of fact could find that the essential elements of the crime were
proved beyond a reasonable doubt. People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012);
People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). A jury, and not an appellate
court, observes the witnesses and listens to their testimony; therefore, an appellate court must not
interfere with the jury’s role in assessing the weight of the evidence and the credibility of the
witnesses. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992). Circumstantial
evidence and the reasonable inferences that arise from such evidence can constitute satisfactory
proof of the elements of the crime. People v Carines, 460 Mich 750, 757; 597 NW2d 130
(1999). The prosecution need not negate every reasonable theory of innocence, but need only
prove the elements of the crime in the face of whatever contradictory evidence is provided by the
defendant. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). We resolve all
conflicts in the evidence in favor of the prosecution. People v Kanaan, 278 Mich App 594, 619;
751 NW2d 57 (2008).

        To convict a defendant of second-degree murder, “the prosecution must prove: ‘(1) a
death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or
excuse.’ ” People v Roper, 286 Mich App 77, 84; 777 NW2d 483 (2009), quoting People v
Mayhew, 236 Mich App 112, 125; 600 NW2d 370 (1999). An act of true self-defense can
“justify” or “excuse” a crime. People v Dupree, 284 Mich App 89, 99-100; 771 NW2d 470
(2009), aff’d 486 Mich 693; 788 NW2d 399 (2010). The Self-Defense Act (SDA), MCL
780.971 et seq., governed this case, and it provides in relevant part as follows:

               (1) An individual who has not or is not engaged in the commission of a
       crime at the time he or she uses deadly force may use deadly force against another
       individual anywhere he or she has the legal right to be with no duty to retreat if . . .
       the following applies:




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               (a) The individual honestly and reasonably believes that the use of deadly
       force is necessary to prevent the imminent death of or imminent great bodily harm
       to himself or herself or to another individual. [MCL 780.972.]

       “In general, a defendant does not act in justifiable self-defense when he or she uses
excessive force or when the defendant is the initial aggressor.” People v Guajardo, 300 Mich
App 26, 35; 832 NW2d 409 (2013) (emphasis added), citing Dupree, 486 Mich at 707. “[T]he
aggressor is the one who first does acts of such nature as would ordinarily lead to a deadly
combat or as would put the other person involved in fear of death or serious bodily injury.”
People v Van Horn (On Remand), 64 Mich App 112, 115; 235 NW2d 80 (1975) (citation and
quotation marks omitted). “ ‘Once evidence of self-defense is introduced, the prosecutor bears
the burden of disproving it beyond a reasonable doubt.’ ” Roper, 286 Mich App at 86, quoting
People v Fortson, 202 Mich App 13, 20; 507 NW2d 763 (1993).

        Defendant injected the issue of self-defense by testifying that he shot at Harris only
because Harris first shot at him and defendant feared for his life. This placed the burden on the
prosecution to prove beyond a reasonable doubt that defendant did not act in self-defense. The
prosecution met that burden. Smith and Ruff both testified that defendant was the only person
whom they saw with a gun at Harris’s house that night. And Perry testified that Harris did not
have a gun that night. Further, officers found no bullet casings outside the house in the area in
which defendant claimed Harris had been shooting. Based on this testimony and the testimony
discussed earlier in this opinion, there was abundant evidence showing that defendant was the
aggressor, that Harris never shot at defendant or did anything that justified or excused
defendant’s actions, and that defendant shot at Harris multiple times after Harris had fled back to
his house. Viewing the evidence in a light most favorable to the prosecution, resolving all
conflicts in the evidence in the prosecution’s favor, and deferring to the jury’s assessments of
witness credibility, we hold that there was sufficient evidence establishing that the killing was
not justified or excused, as defendant did not act in an honest and reasonable belief that the use
of deadly force was necessary. Reversal is unwarranted.

        Next, defendant argues that the trial court abused its discretion in excluding as hearsay
Rayford’s proffered testimony that defendant told him that he had been shot when defendant
arrived at Rayford’s house. Assuming that the trial court erred in excluding the testimony, we
hold that the error was harmless, as defendant has not established the requisite prejudice, i.e., that
it is more probable than not that he would have been acquitted but for the presumed error. MCL
769.26; People v Lukity, 460 Mich 484, 495; 596 NW2d 607 (1999). Defendant already testified
that he had been shot in the leg, and Rayford was able to testify that defendant’s leg was
bandaged and that, when the bandage was removed, he observed a bleeding gash across
defendant’s leg. Rayford was also allowed to testify that defendant told him how he incurred the
injury. Under these circumstances, having Rayford testify to defendant’s actual statement about
being shot would have added little to the defense. Taking that into consideration in conjunction
with the strong evidence of guilt, reversal is unwarranted as any assumed error was harmless.

       Next, defendant raises some issues in his standard 4 brief. First, he challenges the trial
court’s decision to allow jurors to submit questions for the witnesses. This issue was not
preserved, and is reviewed for plain error affecting substantial rights. Carines, 460 Mich at 763-
764. MCR 2.513(I) expressly provides that “the court may permit the jurors to ask questions of

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witnesses.” Furthermore, our Supreme Court has held that “[t]he practice of permitting
questions to witnesses propounded by jurors should rest in the sound discretion of the trial
court.” People v Heard, 388 Mich 182, 187; 200 NW2d 73 (1972). Therefore, there was no
plain error when the trial court allowed jurors to submit questions for the witnesses.
Additionally, while defendant argues a due process violation related to the allowance of juror
questions, he has not shown a plain constitutional error in this regard.

        Next, defendant argues that the prosecution committed misconduct when, in its opening
statement, the prosecution described Harris as having tried to calm the altercations in his yard,
depicted defendant as having acted aggressively toward Harris, and stated that Harris had run
back to the house when defendant retrieved his gun from Johnson. However, in making these
statements, the prosecution was merely stating the facts to be proven at trial, summarizing the
anticipated testimony. People v Ericksen, 288 Mich App 192, 200; 793 NW2d 120 (2010).
These statements were nothing more than “proper comments regarding the evidence the
prosecutor intended to present.” Mayhew, 236 Mich App at 123. And, there is evidence in the
record to support each of these statements. Therefore, the prosecution did not commit
misconduct in its opening statement.

        Finally, defendant argues that defense counsel was ineffective for failing to object to the
juror questions that were directed to Rayford and for failing to object to the prosecution’s alleged
misconduct in the opening statement with respect to the remarks discussed in the preceding
paragraph. Given that, for the reasons discussed above, there was nothing improper about the
juror-submitted questions and the prosecutor’s opening statement, counsel’s performance was
not deficient, People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001), as any
objections would have been futile, People v Chambers, 277 Mich App 1, 11; 742 NW2d 610
(2007). Reversal is unwarranted.

       Affirmed.



                                                             /s/ Michael J. Kelly
                                                             /s/ William B. Murphy
                                                             /s/ Joel P. Hoekstra




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