                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  January 26, 2016
              Plaintiff-Appellee,

v                                                                 No. 318852
                                                                  Wayne Circuit Court
MARWIN TERRELLE MCHENRY,                                          LC No. 13-004171-FC

              Defendant-Appellant.


Before: RIORDAN, P.J., and JANSEN and FORT HOOD, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of three counts of assault with
intent to commit murder, MCL 750.83, three counts of assault with a dangerous weapon
(“felonious assault”), MCL 750.82, and possession of a firearm during the commission of a
felony (“felony-firearm”), MCL 750.227b. The trial court sentenced defendant to 14 to 25 years’
imprisonment for each assault with intent to commit murder conviction, and 1 to 4 years’
imprisonment for each felonious assault conviction, to be served concurrently with each other
but consecutive to a sentence of two years’ imprisonment for the felony-firearm conviction. We
affirm.

                               I. FACTUAL BACKGROUND

        This case arises from a nonfatal shooting that occurred on July 10, 2012, in Detroit,
Michigan. That afternoon, complainants Onjdua Bohanen, Alyssa Bohanen, and Debbie
Bohanen drove to Tanisha Harris’s house with three other women (collectively, “the Bohanens”)
to fight Harris and her sister, Alexis Woodward. The Bohanens were engaged in an ongoing
dispute with Harris and Alexis, which had resulted in a physical altercation two weeks earlier.

       When the Bohanens initially drove past Alexis’s and Harris’s home, Harris, Alexis,
Tanisha Woodward (Alexis’s and Harris’s mother), their cousin Sonovia, and two other women




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(collectively, “the Woodwards”) were outside. 1 The Woodwards threw canned food, sticks, and
rocks at the Bohanens’ vehicle.

       The Bohanens parked their car two blocks away from the Woodwards’ house, and most
of the group started walking toward the Woodwards, who were still outside their home. The
Woodwards also began walking toward the Bohanens. When the two groups were within close
proximity of each other, Onjdua, Alyssa, and Debbie saw defendant (Harris’s boyfriend) emerge
from behind a red car, which was parked on the side of the Woodward home, with a rifle. The
Bohanens ran, and defendant fired multiple shots toward them, striking Onjdua in the back of the
leg.

         All three complainants identified defendant as the gunman in photographic lineups and at
trial. Harris, however, testified that the shooter was her brother, James Bosely, not defendant.
The prosecution impeached Harris with prior inconsistent testimony that she gave during an
earlier juvenile court proceeding concerning charges that Alexis was facing for her involvement
with the shooting. During the juvenile proceedings, Harris claimed that she did not see the
shooter and did not know who he was. At defendant’s trial, Harris admitted she lied in the
juvenile proceeding to protect James.

        Following defendant’s convictions, the Wayne County Prosecutor’s Office received new
information regarding the case and initiated an investigation. During that investigation, Harris,
Woodward, and Alexis all testified pursuant to investigative subpoenas, during which they
identified James as the shooter. Based on this testimony, defendant filed a motion to remand in
this Court, indicating that he would file a motion for a new trial on the basis of newly discovered
evidence in the lower court if this Court granted his motion, which we did.2

       On remand, defendant filed a motion for a new trial. The trial court held a hearing on
defendant’s motion, during which it heard testimony from Woodward and Alexis. Both
witnesses provided inconsistent or contradictory testimony, and the prosecutor impeached
numerous portions of their testimony with previous statements from Alexis’s juvenile proceeding
and the investigative subpoenas.

        Ultimately, the trial court denied defendant’s motion for a new trial. The court concluded
that defendant had failed to establish the four elements necessary to warrant a new trial, finding
that the testimony was not newly discovered and was cumulative to Harris’s previous testimony.
Additionally, it highlighted specific examples of the inconsistencies in Woodward’s and Alexis’s
testimony and the various statements with which the prosecutor had impeached them. Given
these discrepancies, it “found [Woodward and Alexis] to be credibly not credible. They were


1
 In the interest of clarity, Tanisha Harris will be referred to as “Harris” and Tanisha Woodward
will be referred to as “Woodward” in this opinion. However, the entire group will be referred to
as “the Woodwards.”
2
 People v McHenry, unpublished order of the Court of Appeals, entered May 27, 2015 (Docket
No. 318852).


                                                -2-
inconsistent. When they were questioned by [defendant’s appellate counsel,] they had responses.
When they were questioned by the prosecutor, they had memory problems.” Accordingly, it
determined that the testimony would not have made any difference upon retrial.

                            II. SUFFICIENCY OF THE EVIDENCE

        Defendant contends that the prosecution presented insufficient evidence to support his
convictions for assault with intent to commit murder, felonious assault, and felony-firearm.
However, he only contests the identity element of his convictions, arguing that the prosecution
failed to prove his identity as the gunman beyond a reasonable doubt. We disagree.

                                 A. STANDARD OF REVIEW

        We review a challenge to the sufficiency of the evidence de novo. People v Harverson,
291 Mich App 171, 175-177; 804 NW2d 757 (2010). We review the evidence in the light most
favorable to the prosecution and determine whether a rational jury could have found that the
essential elements of the crime were proven beyond a reasonable doubt. Id. at 175.
“Circumstantial evidence and reasonable inferences that arise from such evidence can constitute
satisfactory proof of the elements of the crime.” People v Williams, 268 Mich App 416, 419;
707 NW2d 624 (2005). We resolve all conflicts in the evidence in favor of the prosecution and
will not interfere with the trier of fact’s “determinations regarding the weight of evidence and the
credibility of the witnesses.” People v Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008).

                                         B. ANALYSIS

        “[I]t is well settled that identity is an element of every offense.” People v Yost, 278
Mich App 341, 356; 749 NW2d 753 (2008). Identity may be established by either direct
testimony or circumstantial evidence. People v Kern, 6 Mich App 406, 409-410; 149 NW2d 216
(1967). Likewise, “positive identification by witnesses may be sufficient to support a conviction
of a crime.” People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000). Further,
“credibility of identification testimony is a question for the trier of fact that we do not resolve
anew.” Id.

        Onjdua identified defendant as the gunman hours after the shooting while she was still in
the hospital. Although she could not make out the man’s face when he initially emerged from
behind the red car, she had an opportunity to view the shooter when he approached the group and
aimed his weapon at the Bohanens before she ran from the scene. Onjdua knew defendant was
Harris’s boyfriend and that he went by the name “Mo.” She had previously seen defendant in
person on another occasion and had seen his picture on Facebook. Alyssa, who had known
defendant for more than 10 years, also identified him as the man who came out from behind the
red car and shot at the group. She further testified that defendant called her 45 minutes to an
hour after the shooting to deny involvement. The jury could reasonably infer from this phone
call that defendant had some connection with—or, at the very least, knowledge of—the shooting.
See Williams, 268 Mich App at 419. Debbie, who had seen defendant in person once before,
also testified that he was the shooter and that James was not at the scene. Further, all three
witnesses identified defendant in separate photographic lineups.



                                                -3-
        Defendant asserts that the evidence did not prove beyond a reasonable doubt that he was
the shooter because the witnesses’ testimony was neither credible nor reliable. He emphasizes
that Onjdua initially told police that she believed that James could be the shooter, that Alyssa and
Debbie gave conflicting testimony regarding defendant’s clothing, and that Harris, who testified
that James was the shooter, was the most reliable witness. However, Onjdua explained that she
was distracted by her injuries when she first spoke to the police. Further, these inconsistencies
are relevant to the finder of fact’s assessment of the weight and credibility of the identification
testimony, and we will not reassess that determination on appeal. Davis, 241 Mich App at 700;
see also Unger, 278 Mich App at 222. Likewise, the jury could reasonably credit the
complainants’ testimony over Harris’s claim that her brother was the gunman, especially given
Harris’s admission that she provided false testimony about the identity of the shooter during a
prior proceeding. See People v Perry, 460 Mich 55, 63; 594 NW2d 477 (1999) (“[A] jury is free
to believe or disbelieve, in whole or in part, any of the evidence presented.”)

       Viewing the complainants’ identification testimony in the light most favorable to the
prosecution, Harverson, 291 Mich App at 175-176, and resolving all conflicts in favor of the
prosecution, Unger, 278 Mich App at 222, a reasonable trier of fact could conclude that
defendant was the gunman. Thus, we reject defendant’s argument that his convictions were
supported by insufficient evidence.

                          III. CRUEL OR UNUSUAL PUNISHMENT

       Defendant next argues that the sentences for his assault with intent to commit murder
convictions constitute cruel or unusual punishment. We disagree.

                                 A. STANDARD OF REVIEW

        To preserve a claim of constitutional error in sentencing, a defendant must object in the
trial court. People v McLaughlin, 258 Mich App 635, 669-670; 672 NW2d 860 (2003).
Although defendant maintained his innocence at sentencing, he did not object on the ground that
his sentences amounted to cruel and/or unusual punishment. Thus, this issue is unpreserved and
reviewed for plain error affecting defendant’s substantial rights. People v Carines, 460 Mich
750, 764-765; 597 NW2d 130 (1999). To demonstrate such an error, a defendant must show that
(1) an error occurred, (2) the error was clear or obvious, and (3) “the plain error affected [the
defendant’s] substantial rights,” which “generally requires a showing of prejudice, i.e., that the
error affected the outcome of the lower court proceedings.” Id. at 763. Even if a defendant
establishes a plain error that affected his substantial rights, “[r]eversal is warranted only when
the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an
error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings
independent of the defendant’s innocence.” Id. at 763-764 (quotation marks and citation
omitted; second alteration in original).

                                         B. ANALYSIS

        The United States Constitution prohibits “cruel and unusual punishments,” and the
Michigan Constitution forbids “cruel or unusual punishment.” US Const, Am VIII; Const 1963,
art 1, § 16. Michigan’s prohibition against cruel or unusual punishment is interpreted more

                                                -4-
broadly than the federal prohibition. People v Bullock, 440 Mich 15, 30-35; 485 NW2d 866
(1992). Accordingly, if a sentence is constitutional under Michigan’s Constitution, it is also
constitutional under the federal Constitution. People v Nunez, 242 Mich App 610, 618 n 2; 619
NW2d 550 (2000).

         “In deciding if punishment is cruel or unusual, this Court looks to the gravity of the
offense and the harshness of the penalty, comparing the punishment to the penalty imposed for
other crimes in this state, as well as the penalty imposed for the same crime in other states.”
People v Masroor, ___ Mich App at ___, ___; ___ NW2d ___ (2015) (Docket No. 322280); slip
op at 23; see also People v Dipiazza, 286 Mich App 137, 153-154; 778 NW2d 264 (2009) (also
noting that this Court will consider the goal of rehabilitation in determining whether a
punishment is cruel or unusual). Defendant has not demonstrated, or even argued, “that his
sentences are cruel or unusual by comparing them to the penalties imposed for other crimes in
this state and the same crime in other states,” id. at ___; slip op at 23, and we are not required to
search for support for a defendant’s arguments, People v Payne, 285 Mich App 181, 195; 774
NW2d 714 (2009) (“An appellant may not merely announce his position and leave it to this
Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment
with little or no citation of supporting authority.” [Quotation marks and citation omitted.]).

      Moreover, a sentence within the range calculated under the sentencing guidelines is
presumed to be proportionate, and a proportionate sentence is not cruel or unusual punishment.
People v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008).3 To overcome this
presumption, a defendant “must present unusual circumstances that would render the
presumptively proportionate sentence disproportionate.” People v Lee, 243 Mich App 163, 187;
622 NW2d 71 (2000).

        Defendant only argues on appeal that his sentences, which were well within the
guidelines, are cruel or unusual given his age, the “questionable reliability” of his convictions
(based on his arguments supra regarding the sufficiency of the evidence presented at trial), his
lack of a significant criminal history, his positive family relationships, and his employment
history. None of these factors constitute “unusual circumstances” sufficient to overcome the
presumption of proportionality or demonstrate that his sentences are cruel or unusual. See
People v Lemons, 454 Mich 234, 258-259; 562 NW2d 447 (1997) (“find[ing] no principled
reason to require that a judge treat similar offenses that are committed by similarly depraved



3
   “[U]nder the Michigan Constitution, the prohibition against cruel or unusual punishment
included a prohibition on grossly disproportionate sentences. But . . . ‘the constitutional concept
of “proportionality” under Const 1963, art 1, § 16 is distinct from the nonconstitutional
“principle of proportionality” discussed in People v Milbourn, 435 Mich 630, 650; 461 NW2d 1
(1990), although the concepts share common roots.’ ” People v Benton, 294 Mich App 191, 204;
817 NW2d 599 (2011) (citation omitted). See also People v Steanhouse, ___ Mich App ___,
___; ___ NW2d ___ (2015) (Docket No. 318329); slip op at 23-25 (discussing the Milbourn
principle of proportionality and adopting that standard as the method for reviewing the
reasonableness of a sentence under People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015)).


                                                -5-
persons differently solely on the basis of the age of the defendant at sentencing where the
Legislature has authorized the judge to impose life or any term of years.”); Powell, 278 Mich
App at 323 (noting that “[i]f the evidence was not legally sufficient, . . . the remedy would be to
vacate [the defendant’s] conviction[,]” not to remand for resentencing); People v Daniel, 207
Mich App 47, 54; 523 NW2d 830 (1994) (stating that the defendant’s employment and lack of
criminal history “are not unusual circumstances that would overcome” the presumption of
proportionality).

        Therefore, defendant has not demonstrated a plain error affecting his substantial rights, as
he has failed to overcome the presumption of proportionality or establish that his sentences
constitute cruel or unusual punishment under the circumstances.4

                               IV. MOTION FOR A NEW TRIAL

        In a supplemental brief, defendant contends that the trial court clearly erred when it found
on remand that (1) the testimony of Tanisha Woodward and Alexis was not newly discovered
evidence, (2) their testimony was cumulative, and (3) their testimony would not have affected the
result of defendant’s trial. As such, defendant argues that the court abused its discretion in
denying his motion for a new trial. We disagree.

                                  A. STANDARD OF REVIEW

       We review for an abuse of discretion a trial court’s decision on a motion for a new trial.
People v Terrell, 289 Mich App 553, 558; 797 NW2d 684 (2010). “An abuse of discretion
occurs when the trial court’s decision is outside the range of principled outcomes.” Id. at 559.
We review a trial court’s factual findings for clear error, but review de novo underlying questions
of law. Id., citing MCR 2.613(C). A finding “is clearly erroneous 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) (quotation marks and citation omitted).

                                     B. APPLICABLE LAW




4
  To the extent that defendant suggests that his sentences for assault with intent to commit
murder are cruel and/or unusual when considered in combination with his consecutive two-year
sentence for felony-firearm, we disagree. The cumulative length of consecutive sentences is not
considered when determining whether individual sentences are proportionate. Rather, each
sentence is examined individually. People v Miles, 454 Mich 90, 95; 559 NW2d 299 (1997). As
explained supra, defendant’s sentences for assault with intent to commit murder are
proportionate. Further, defendant’s two-year sentence for his felony-firearm conviction does not
constitute cruel or unusual punishment. See Wayne County Prosecutor v Recorder’s Court
Judge (People v Meeks), 92 Mich App 433, 438-441; 285 NW2d 318 (1979) (holding that the
mandatory two-year minimum term of imprisonment for felony-firearm does not constitute cruel
or unusual punishment).


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        “Historically, Michigan courts have been reluctant to grant new trials on the basis of
newly discovered evidence,” People v Grissom, 492 Mich 296, 312; 821 NW2d 50 (2012), and
“the cases where [the Michigan Supreme Court] has held that there was an abuse of discretion in
denying a motion based on such grounds are few and far between,” People v Rao, 491 Mich 271,
280; 815 NW2d 105 (2012). This reluctance to grant new trials on the basis of newly discovered
evidence stems from the parties’ legal obligation to “secure evidence and prepare for trial with
the full understanding that, absent unusual circumstances, the trial will be the one and only
opportunity to present their case.” Id. Likewise, “[i]t is the obligation of the parties to undertake
all reasonable efforts to marshal all the relevant evidence for that trial,” as “[e]vidence will not
normally be allowed in installments.” Id.

       However, a new trial is warranted if the defendant shows that “(1) the evidence itself, not
merely its materiality, was newly discovered; (2) the newly discovered evidence was not
cumulative; (3) the party could not, using reasonable diligence, have discovered and produced
the evidence at trial; and (4) the new evidence makes a different result probable on retrial.”
People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003) (quotation marks and citation
omitted); see also Terrell, 289 Mich App at 559. The defendant bears the burden of satisfying
each part of the test. Rao, 491 Mich at 279.

                                        C. APPLICATION

       Here, the trial court did not abuse its discretion in denying defendant’s motion for a new
trial. Even if we assume, solely for the sake of argument, that Woodward’s and Alexis’s
testimony constituted newly discovered evidence,5 it is apparent that defendant did not establish


5
  It is clear that Harris’s testimony was not newly discovered evidence, as she testified at
defendant’s trial, and appellate counsel stipulated that any testimony that she would have
provided at a postconviction hearing would have been virtually identical to her trial testimony.
        Additionally, it is noteworthy that “Michigan caselaw makes clear that evidence is not
newly discovered if the defendant or defense counsel was aware of the evidence at the time of
trial.” Rao, 491 Mich at 281. “Further, Michigan courts have held that a defendant’s awareness
of the evidence at the time of trial precludes a finding that the evidence is newly discovered,
even if the evidence is claimed to have been ‘unavailable’ at the time of trial.” Id. at 282.
Likewise, this Court has recognized a distinction between “newly discovered” and “newly
available evidence,” warning that courts “must exercise great caution in considering evidence to
be ‘newly discovered’ when it existed all along and was unavail[a]ble only because a co-
defendant . . . had availed himself of his privilege not to testify.” Terrell, 289 Mich App at 567
(quotation marks and citation omitted, alteration in original).
         Without fully analyzing this prong of the test, we find it important to note that Woodward
initially was subpoenaed as a defense witness at defendant’s trial, but defense counsel ultimately
decided not to call her as a witness after Woodward’s attorney informed the court that she would
invoke her Fifth Amendment right to remain silent due to perjury concerns and the fact that she
was still awaiting sentencing before the same trial court judge on a nolo contendere plea to one
or more charges arising from the same incident. Similarly, defendant explained in his motion for

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that the evidence was not cumulative or that it is probable that the evidence would have affected
the result of his trial. Cress, 468 Mich at 692.

        At trial, Harris testified that James arrived at the scene of the confrontation, shot at the
Bohanens with a long gun after Alexis said “let that b---- go,” ran back to Woodward’s house,
left the gun inside, and ran down the street to a cousin’s house. Except for some minor
differences, this testimony was virtually identical to that offered by Woodward and Alexis at the
evidentiary hearing. We are unconvinced by defendant’s argument that Woodward’s testimony
was not cumulative because Woodward had a different relationship with defendant and James
than Harris, or because Woodward’s motivation for testifying differed from Harris’s motive.
Likewise, defendant has not provided any authority in the trial court or on appeal for the
proposition that a witness’s testimony is not cumulative if the witness’s relationships or
motivations for testifying differ from those of a previous witness. See Payne, 285 Mich App at
195. Thus, defendant failed to establish the second element of the Cress test. Cress, 468 Mich at
692.

        Furthermore, regarding the fourth element, the trial court did not clearly err in concluding
that Woodward’s and Alexis’s testimony did not make a different result probable on retrial.
Cress, 468 Mich at 692. As the trial court noted, the testimony of both witnesses was
inconsistent and unconvincing, and it repeatedly contradicted their previous sworn testimony.
Both admitted to lying under oath, for various reasons, when they found it necessary or
expedient. Woodward and Alexis also contradicted each other at the hearing, particularly on the
issue of whether Woodward was present for the shooting.6 In addition, Alexis initially lied
during the July 23, 2015 postconviction hearing when she testified regarding a written statement
that she allegedly gave to police officers at her house on February 15, 2014. She later admitted
on cross-examination that she had written the statement herself, had it notarized at a bank, and
then gave it to Harris, believing that Harris would give it to the police. Given these credibility
issues, even defendant’s appellate counsel acknowledged at the hearing on defendant’s motion
that he “will be the first to tell this Court and acknowledge that [Alexis] was not a good witness
for the defense. She was not helpful in the least bit.”7



a new trial that Alexis did not testify at defendant’s trial, and was not called as a defense witness,
because she was facing prosecution in juvenile court for charges related to the July 10, 2012
incident, not because defendant was unaware of her potential testimony. Therefore, it is apparent
that defendant was, at a minimum, aware of Woodward’s and Alexis’s potential testimony at the
time of his trial. See Rao, 491 Mich at 281.
6
  Additionally, we note that the testimony of both women—which indicated that defendant was
not involved in the incident at all—was undermined by the handwritten letter that defendant sent
to the court following his conviction, in which he described the confrontation, identified James
as the shooter, said that he had heard Alexis tell James to shoot, and recalled hearing James fire
four or five shots.
7
  Counsel ultimately argued that the trial court should consider Alexis’s testimony to the extent
that it was corroborated by Woodward’s testimony.


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       In sum, we are not definitely and firmly convinced that the trial court made a mistake in
finding that a jury would fail to credit Woodard’s and Alexis’s dubious and impeached testimony
upon retrial. Reese, 491 Mich at 139. Thus, the trial court’s denial of defendant’s motion for a
new trial did not fall outside the range of principled outcomes. Terrell, 289 Mich App at 558.

                                       V. CONCLUSION

        Defendant has failed to establish that his convictions were supported by insufficient
evidence, or that the sentences imposed for his assault with intent to commit murder convictions
constituted cruel or unusual punishment. In addition, the trial court did not abuse its discretion
when it denied defendant’s motion for a new trial because defendant failed to establish the four
elements of the Cress test.

       Affirmed.



                                                            /s/ Michael J. Riordan
                                                            /s/ Kathleen Jansen
                                                            /s/ Karen M. Fort Hood




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