            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED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 30, 2020
               Plaintiff-Appellee,

v                                                                  No. 344197
                                                                   Wayne Circuit Court
MARCUS RONNELL CROFF,                                              LC No. 17-009474-01-FC

               Defendant-Appellant.


Before: METER, P.J., and FORT HOOD and REDFORD, JJ.

PER CURIAM.

       Defendant appeals by right his convictions following a bench trial of second-degree
murder, MCL 750.317, and possession of a firearm during the commission of a felony (felony-
firearm), MCL 750.227b. The trial court sentenced defendant to consecutive prison terms of 17
to 30 years for the second-degree murder conviction and two years for the felony-firearm
conviction. We affirm.

                                           I. FACTS

         Defendant attended a birthday party for his cousin at a bar. When defendant went
outside, he and Antonio Hamilton had a verbal altercation that escalated into a fight that
bystanders eventually broke up. Defendant then retrieved his gun from a vehicle. Witnesses
testified at trial that defendant approached Hamilton with the gun, at which point defendant and
Hamilton struggled for the gun. Defendant shot the gun a few times during the struggle striking
Hamilton in the face, chest, and abdomen. Defendant fled. Police and emergency medical
personnel arrived at the scene and rendered first aid, but Hamilton later died en route to a
hospital. The following day, defendant’s attorney contacted the police and defendant agreed to
be interviewed by the police during which he surrendered his gun. Defendant claimed that he
acted in self-defense. At trial, defendant testified that Hamilton followed him after their fight;
and that after he retrieved his gun from a car, he fired warning shots in the air. Hamilton
attempted to take the gun from defendant, and during the struggle the gun discharged
accidentally. Defendant then intentionally shot Hamilton fearing that he would take the gun and
shoot defendant. The gun went off a third time accidentally.



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                           II. GREAT WEIGHT OF THE EVIDENCE

        Defendant first argues that the trial court’s verdict was against the great weight of the
evidence because he acted in self-defense, the prosecution’s witnesses lacked credibility, and if
the evidence established that defendant did not act in lawful self-defense, the evidence supported
a voluntary manslaughter conviction, not a second-degree murder conviction. We disagree.

        A verdict is against the great weight of evidence when the “evidence preponderates so
heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand.”
People v McCray, 245 Mich App 631, 637; 630 NW2d 633 (2001); quoting People v Gadomski,
232 Mich App 24, 27-28; 592 NW2d 75 (1998). We review for clear error a trial judge’s
findings of fact in a bench trial and review de novo its conclusions of law. People v Pennington,
323 Mich App 452, 464 n 7; 917 NW2d 720 (2018). A factual finding is clearly erroneous if,
after review of the entire record, an appellate court is left with a definite and firm conviction that
an error occurred. People v Gingrich, 307 Mich App 656, 661; 862 NW2d 432 (2014).

         To establish that a defendant committed second-degree murder, the prosecution must
prove beyond a reasonable doubt: “(1) a death, (2) the death was caused by an act of the
defendant, (3) the defendant acted with malice, and (4) the defendant did not have lawful
justification or excuse for causing the death.” People v Smith, 478 Mich 64, 70; 731 NW2d 411
(2007). A defendant acts with malice where he acts with “the intent to kill, the intent to cause
great bodily harm, or the intent to do an act in wanton and wilful disregard of the likelihood that
the natural tendency of such behavior is to cause death or great bodily harm.” People v
Henderson, 306 Mich App 1, 9-10; 854 NW2d 234 (2014) (quotation marks and citation
omitted). However, “the killing of another person in self-defense is justifiable homicide if the
defendant honestly and reasonably believes that his life is in imminent danger or that there is a
threat of serious bodily harm.” People v Heflin, 434 Mich 482, 502-503; 456 NW2d 10 (1990)
(citations omitted). “A finding that a defendant acted in justifiable self-defense necessarily
requires a finding that the defendant acted intentionally, but that the circumstances justified his
actions.” Id. at 503.

         To prove self-defense, the evidence must demonstrate that the defendant “reasonably
believes (a) that he is in immediate danger of unlawful bodily harm from his adversary and (b)
that the use of such force is necessary to avoid this danger.” People v Dupree, 486 Mich 693,
707; 788 NW2d 399 (2010) (quotation marks and citation omitted). Generally, an individual
who is “not the aggressor in an encounter is justified in using a reasonable amount of force
against his adversary,” but only if the individual believes that he is in immediate danger of
bodily harm and that the use of force is necessary to avoid said danger. Id. Defendant has the
initial burden of production of “some evidence from which a [fact-finder] could conclude that the
elements necessary to establish a prima facie defense of self-defense exist.” People v Reese, 491
Mich 127, 155-156; 815 NW2d 85 (2012). “Once a defendant raises the issue of self-defense
and satisfies the initial burden of producing some evidence from which a jury could conclude
that the elements necessary to establish a prima facie defense of self-defense exist, the
prosecution must exclude the possibility of self-defense beyond a reasonable doubt.” People v
Stevens, 306 Mich App 620, 630; 858 NW2d 98 (2014) (quotation marks and citation omitted).


                                                 -2-
Evidence of flight is admissible to support an inference of a consciousness of guilt. People v
Goodin, 257 Mich App 425, 432; 668 NW2d 392 (2003).

        Because deadly force self-defense is justified only where it is necessary to avoid
immediate danger, it is required that “the actor try to avoid the use of deadly force if he can
safely and reasonably do so, for example by applying nondeadly force or by utilizing an obvious
and safe avenue of retreat.” People v Riddle, 467 Mich 116, 119; 649 NW2d 30 (2002).
However, “a person is never required to retreat from a sudden, fierce, and violent attack; nor is
he required to retreat from an attacker who he reasonably believes is about to use a deadly
weapon.” Id. In the Self-Defense Act (SDA), MCL 780.971 et seq. the Legislature “codified the
circumstances in which a person may use deadly force in self-defense or in defense of another
person without having the duty to retreat.” Dupree, 486 Mich at 708. The SDA modified the
common law duty to retreat, but the SDA continues to require that a person have an honest and
reasonable belief that there is a danger of death, great bodily harm, or a sexual assault to justify
the use of deadly force. MCL 780.972(1). The statute 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
       either of the following applies:

       (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.

       (b) The individual honestly and reasonably believes that the use of deadly force is
       necessary to prevent the imminent sexual assault of himself or herself or of
       another individual. [MCL 780.972(1).]

        Generally, questions of witness credibility are for the fact-finder. People v Unger, 278
Mich App 210, 232; 749 NW2d 272 (2008). Witness credibility is determined by not only their
words, but also features such as tonal quality, volume, speech patterns, and the witness’s
demeanor. People v Lemmon, 456 Mich 625, 646; 576 NW2d 129 (1998). Conflicts in witness
testimony and questions regarding witness credibility are generally insufficient grounds for a
new trial. Id. at 647. We “will not interfere with the trier of fact’s role of determining the
weight of the evidence or the credibility of witnesses.” People v Eisen, 296 Mich App 326, 331;
820 NW2d 229 (2012), quoting People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57
(2008). We give deference to the trier of fact’s determination of credibility unless material
testimony contradicted indisputable physical facts or laws, defied physical realities, was patently
incredible, was so inherently implausible that it could not be believed by a reasonable fact-finder,
or was seriously impeached in a case marked by uncertainties and discrepancies. Lemmon, 456
Mich at 642-644. That was not the case here. The record indicates that the trial court reasonably
based its decision on the testimony and evidence at trial which did not preponderate so heavily
against the verdict that it would be a miscarriage of justice to allow the verdict to stand.

       The record reflects that, following the parties’ submissions of all the evidence, the trial
court made findings of fact and conclusions of law. The trial court recounted witnesses’

                                                -3-
testimonies that established that defendant and Hamilton engaged in an altercation that escalated
into a fistfight, Hamilton throwing the first punch after defendant flicked his hat. Bystanders
broke up that fight, but afterward defendant retrieved his phone and his gun from a vehicle and
initiated a further altercation between defendant and Hamilton.

        The trial court noted that one witness testified that he and Hamilton were about 12 feet
away from their vehicle on the street when he suddenly saw defendant approach with a gun,
heard gunshots, and saw defendant and Hamilton struggling for a gun. Another witness told the
police that he saw one of the two people who fought outside the bar move toward the other
fighter with a gun before he heard gunshots. Witnesses testified that, as defendant and Hamilton
struggled, defendant held the gun in one hand and struck Hamilton with his other hand. Shots
were then fired and Hamilton fell down in the street. The record indicates that some
inconsistencies in witnesses’ testimonies existed but most of their testimonies of the events were
consistent with other evidence presented regarding the events that occurred on the night of the
incident. The trial court acknowledged the variation in testimonies but appropriately determined
that the material facts were not disputed.

        The record reflects that the trial court viewed the video evidence of the incident that
depicted the argument and first fight between defendant and Hamilton and indicated that, at its
conclusion, defendant had the advantage and a position on top of Hamilton inflicting blows and
had to be restrained and removed off of him. Such video footage provided evidence that did not
establish a basis for defendant to reasonably fear for his safety.

        The trial court correctly found based upon the evidence that when defendant retrieved his
gun the safety was off and a round was loaded in the chamber. Defendant testified that he fired
one or more warning shots. Defendant admitted that Hamilton was unarmed and that he could
have walked away after the first fight and even again when he noticed Hamilton coming toward
him. Defendant testified that he and Hamilton fought for the gun. Although defendant’s
testimony established that he shot one shot accidentally, he admitted that he intentionally fired a
second shot that struck Hamilton. He also admitted that he fired a third shot but asserted the gun
fired accidentally. The record indicates that the trial court considered defendant’s explanation
but found defendant’s testimony regarding the involuntariness of the last shot lacking in
credibility because evidence established that Hamilton was not touching defendant at the time.
Further, defendant admitted that he could have rendered aid to Hamilton but instead fled the
scene.

        The trial court found that testimony established that Hamilton never possessed a gun and
that only defendant had a gun. Hamilton was highly intoxicated but defendant was not. The
record reflects that the trial court considered the forensic evidence and testimony presented by
investigators that established that the handle of defendant’s gun featured only defendant’s DNA.
The trial court found that such evidence indicated that defendant had control over the gun at all
times. The trial court also found, based on witnesses’ testimonies that defendant acted as the
aggressor during the second fight and a struggle ensued over the gun which defendant
brandished. The trial court found that defendant failed to act reasonably under the circumstances
by escalating the situation by bringing his gun into the situation; and regardless whether
defendant fired his gun into the air initially as he claimed or pointed it at another witness,


                                                -4-
defendant acted unreasonably by firing his gun and using deadly force when the circumstances
did not require such conduct.

       The trial court’s factual findings were well supported by the evidence presented at the
bench trial. The trial court sat in the best position to consider the witnesses’ credibility by
observing and hearing them testify. Lemmon, 456 Mich at 646. The great weight of the evidence
supported the trial court’s finding that defendant escalated the situation by retrieving his gun and
acting as the aggressor. Although defendant testified in support of his self-defense theory, the
record evidence does not support his contention that the circumstances justified his conduct. The
prosecution presented evidence that excluded defendant’s self-defense claim beyond a
reasonable doubt. The trial court’s findings were not clearly erroneous. The great weight of the
evidence established all of the elements of second-degree murder and defendant’s guilt beyond a
reasonable doubt.

        Defendant argues that, even if he was not justified in using deadly force he was justified
in using deadly force to protect himself once Hamilton attempted to disarm him. The evidence,
however, established that Hamilton neither had a weapon nor charged at defendant nor attacked
him. Although Hamilton grappled with defendant over the gun, defendant maintained his
possession and control of it and intentionally fired and struck Hamilton. Because the trial court
did not clearly err by finding that the evidence did not support defendant’s claim of self-defense,
the evidence did not preponderate so heavily against the verdict that it would be a serious
miscarriage of justice to allow the verdict to stand. See Gadomski, 232 Mich App at 27-28.

        Defendant argues in the alternative that the great weight of the evidence demonstrated
that he committed voluntary manslaughter rather than second-degree murder. A voluntary
manslaughter conviction requires the same proofs as a second-degree murder conviction, but it
also requires “evidence of provocation as a mitigating factor.” People v Darden, 230 Mich App
597, 602-603, 585 NW2d 27 (1998).                “[T]he element distinguishing murder from
manslaughter—malice—is negated by the presence of provocation and heat of passion.” Reese,
491 Mich at 152, quoting People v Mendoza, 468 Mich 527, 540; 664 NW2d 685 (2003)
(quotation marks omitted). Voluntary manslaughter occurs when “the defendant killed in the
heat of passion, the passion was caused by adequate provocation, and there was not a lapse of
time during which a reasonable person could control his passions.” Id. at 535-536. Rather than
being an element of voluntary manslaughter, “provocation is the circumstance that negates the
presence of malice.” Id. at 536. A person acts in the heat of passion when a reasonable person
in the defendant’s situation would lose control and act out of passion rather than reason. People
v Roper, 286 Mich App 77, 86-87; 777 NW2d 483 (2009).

        Defendant argues that Hamilton provoked him into the heat of passion by using upsetting
words about defendant’s cousins, by fighting defendant and using threatening language, and only
a few minutes elapsed between the first fight and Hamilton’s attempt to disarm defendant. The
record, however, indicates that defendant admitted that, following Hamilton’s disparaging
remarks and the first fight, the two separated, defendant thought that the fight had ended, and he
prepared to leave. The evidence does not support his contention that he was compelled by the
heat of passion to act. The evidence establishes that he rationally planned to leave the location
and time elapsed before Hamilton approached him. Additional evidence established that when
defendant encountered Hamilton again at his cousin’s vehicle, he did not act in the heat of

                                                -5-
passion. Defendant took time to retrieve his phone and his gun from the vehicle without haste.
Evidence indicates that Hamilton stood in the street. Defendant testified that he shot his gun in
the air to warn Hamilton who then grappled with defendant who then intentionally shot Hamilton
because Hamilton attempted to dispossess him of his gun. Defendant’s testimony, however, did
not reveal that he lacked the rational capacity to consider his action before and during the second
altercation with Hamilton. Therefore, the trial court did not clearly err by finding that defendant
did not act out of passion.

        Defendant also argues that his “imperfect self-defense” mitigated second-degree murder
to manslaughter. However, “the doctrine of imperfect self-defense does not exist as a
freestanding defense that mitigates a murder to manslaughter because it was not recognized as
such under the common law at the time the Legislature codified the crimes of murder and
manslaughter.” Reese, 491 Mich at 150. “[T]he operative analysis for the fact-finder is not
whether the circumstances involving ‘imperfect self-defense’ exist,” but whether “the
prosecution has proved the element of malice beyond a reasonable doubt.” Id. at 151.

        In this case, the evidence established that defendant acted in wanton and wilful disregard
of the likelihood that the natural tendency of his behavior would cause death or great bodily
harm to Hamilton. See Henderson, 306 Mich App at 9-10. Additionally, because the intent to
kill may be inferred from the use of a deadly weapon, a defendant’s use of a gun is evidence of
malice. Henderson, 306 Mich App at 11. The fact-finder may infer malice from evidence “that
a defendant intentionally set in motion a force likely to cause death or great bodily harm.”
People v Stiller, 242 Mich App 38, 43; 617 NW2d 697 (2000) (quotation marks and citation
omitted). Defendant admitted at trial that he intentionally shot Hamilton once. The record
indicates that the prosecution proved the malice element of the charged offense beyond a
reasonable doubt. Accordingly, the trial court appropriately found defendant guilty of second-
degree murder, rather than voluntary manslaughter.

                                       III. SENTENCING

       Defendant argues that the trial court imposed a sentence disproportionate to his crime.
We disagree because the trial court sentenced defendant within the minimum sentencing
guidelines range.

        This Court reviews 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). A
trial court abuses its discretion when it chooses an outcome falling outside the range of
principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). A sentence
that fulfills the principle of proportionality under People v Milbourn, 435 Mich 630, 636; 461
NW2d 1 (1990), is reasonable under People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015).
In Babcock, 469 Mich at 263, our Supreme Court held that the Legislature had incorporated the
principle of proportionality into the sentencing guidelines. Thus, a “sentence that falls within the
appropriate sentencing guidelines range is presumptively proportionate.” Armisted, 295 Mich
App at 51, citing People v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008).

       Under MCL 769.34(10),


                                                -6-
               If a minimum sentence is within the appropriate guidelines sentence range,
       the court of appeals shall affirm that sentence and shall not remand for
       resentencing absent an error in scoring the sentencing guidelines or inaccurate
       information relied upon in determining the defendant’s sentence. A party shall
       not raise on appeal an issue challenging the scoring of the sentencing guidelines
       or challenging the accuracy of information relied upon in determining a sentence
       that is within the appropriate guidelines sentence range unless the party has raised
       the issue at sentencing, in a proper motion for resentencing, or in a proper motion
       to remand filed in the court of appeals.

In People v Schrauben, 314 Mich App 181, 196 n 1; 886 NW2d 173 (2016), this Court explained
that Lockridge did not alter or diminish MCL 769.34(10). Therefore, we must affirm
defendant’s sentence, unless the trial court erred in scoring under the guidelines, or relied on
inaccurate information when determining defendant’s sentence. Armisted, 295 Mich App at 52,
citing MCL 769.34(10), and People v Kimble, 470 Mich 305, 310-311; 684 NW2d 669 (2004).
Defendant’s argument that MCL 769.34(10) is invalid following Lockridge is unavailing.
Further, defendant has failed to prove that the trial court erred in scoring under the guidelines or
that it relied on inaccurate information when determining his sentence. Accordingly, the trial
court did not abuse its discretion when it sentenced defendant within the sentencing guidelines
range.

       Affirmed.

                                                             /s/ Karen M. Fort Hood
                                                             /s/ James Robert Redford




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