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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ASHTON ARNIZE SMITH, Defendant-Appellant.

UNPUBLISHED January 19, 2012

No. 298157 Wayne Circuit Court LC No. 08-016177-FC

Before: SAAD, P.J., and STEPHENS and RONAYNE KRAUSE, JJ. PER CURIAM. Defendant appeals his bench trial convictions of second-degree murder, MCL 750.317, assault with intent to do great bodily harm less than murder, MCL 750.84, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to 230 months to 30 years in prison for the second-degree murder conviction, 2 to 10 years in prison for the assault with intent to do great bodily harm less than murder conviction, and two years in prison for the felony-firearm conviction. For the reasons set forth below, we affirm. I. SELF DEFENSE AND GREAT WEIGHT OF THE EVIDENCE In a bench trial, this Court reviews the trial court's findings of fact under the clearly erroneous standard, giving consideration to the special opportunity of the trial court to judge the credibility of the witnesses. MCR 2.613(C); People v Robinson, 475 Mich 1, 5; 715 NW2d 44 (2006). "A finding is clearly erroneous if, after a review of the entire record, the appellate court is left with a definite and firm conviction that a mistake has been made." People v Gistover, 189 Mich App 44, 46; 472 NW2d 27 (1991). This Court may grant a new trial if the verdict was manifestly against the clear weight of the evidence, i.e., the evidence so clearly weighed in the defendant's favor that it would be a miscarriage of justice to allow the verdict to stand. People v Gadomski, 232 Mich App 24, 28; 592 NW2d 75 (1998). Defendant claims that the trial court erred in ruling that he did not act in self-defense. He maintains that the evidence showed he feared for his life and that he was justified in using force. A self-defense claim "requires that a defendant has acted in response to an assault." Detroit v Smith, 235 Mich App 235, 238; 597 NW2d 247 (1999). A defendant acts in self-defense when he "honestly and reasonably believes that his life is in imminent danger or that there is a threat of serious bodily harm." People v Roper, 286 Mich App 77, 86; 777 NW2d 483 (2009), citing -1-

People v Heflin, 434 Mich 482, 502; 456 NW2d 10 (1990). The use of deadly force in selfdefense is justified if: (1) the defendant honestly and reasonably believed that he was in danger, (2) the danger which the defendant feared was serious bodily harm or death, and (3) the action taken by the defendant appeared at the time to be immediately necessary, i.e., the defendant is only entitled to use the amount of force necessary to defend himself. MCL 780.972(1)(a); Heflin, 434 Mich at 502. Here, defendant testified that Wilson threatened to shoot him, but that defendant quickly disarmed Wilson. The trial court accepted defendant's testimony, but did not believe that either Wilson or Almond then reached for a shotgun. The prosecution's witnesses testified that no one in the house made any threats to defendant and that no one rushed toward the shotgun. Almond further testified that he never threatened defendant and that he did not have a gun. The trial court ruled that, after he disarmed Wilson, defendant was no longer in imminent danger and that he did not act in self-defense. It is well established that the trier of fact is in the best position to evaluate the credibility of witnesses before it. People v Geno, 261 Mich App 624, 629; 683 NW2d 687 (2004); MCR 2.613(C). Further, it is for the trier of fact to determine what inferences can be fairly drawn from the evidence and to determine the weight to be accorded to the inferences. People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). In light of the great deference given to the trial court's credibility assessments, and in light of other supporting testimony, the trial court did not clearly err in rejecting defendant's testimony that Wilson and Almond reached for a shotgun and that defendant shot them in self-defense. For similar reasons, the verdict was not against the great weight of the evidence. "Conflicting testimony, even when impeached to some extent, is an insufficient ground for granting a new trial." People v Lemmon, 456 Mich 625, 647; 576 NW2d 129 (1998). In order to discount testimony that supports a verdict and grant a new trial, the testimony must either contradict indisputable physical facts, or be so patently incredible or inherently implausible that a reasonable trier of fact could not believe it. Id. at 643-644. The prosecution's witnesses provided ample evidence that supported the verdict, and defendant failed to show that their testimony contradicted indisputable physical facts or was patently incredible or inherently implausible. We hold that the evidence supported the verdict and defendant is not entitled to relief on his great weight of the evidence claim. II. VOLUNTARY MANSLAUGHTER Defendant argues that his second-degree murder conviction should be reduced to voluntary manslaughter because he acted in the heat of passion when he shot Wilson. This Court reviews de novo a challenge to the sufficiency of the evidence in a bench trial. People v Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005). The evidence is viewed in a light most favorable to the prosecution to determine whether the trial court could have found that the essential elements of the crime were proven beyond a reasonable doubt. Id. To find defendant guilty of second-degree murder, the prosecution must prove that the defendant's act, with malice and without justification or excuse, caused the death of another. Roper, 286 Mich App at 84. Here, defendant challenges the element of malice. "Malice is defined as 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 -2-

bodily harm." Id., citing People v Goecke, 457 Mich 442, 464; 579 NW2d 868 (1998). Malice may be "inferred from evidence that the defendant intentionally set in motion a force likely to cause death or great bodily harm." People v Mayhew, 236 Mich App 112, 125; 600 NW2d 370 (1999). "The offense of second-degree murder does not require an actual intent to harm or kill, but only the intent to do an act that is in obvious disregard of life-endangering consequences." Id. at 125. The evidence that defendant disarmed Wilson and subsequently fired the gun at Wilson causing his death was sufficient to allow the trier of fact to find the requisite malice for seconddegree murder beyond a reasonable doubt. Defendant pointed a gun at Wilson and pulled the trigger--an act in obvious disregard of life-endangering consequences. Further, defendant's use of a deadly weapon supports an inference of malice. See People v Turner, 213 Mich App 558, 567; 540 NW2d 728 (1995), overruled in part on other grounds People v Mass, 464 Mich 615; 628 NW2d 540 (2001). Defendant maintains that adequate provocation can negate the presence of malice, and thereby reduce a defendant's culpability in causing the death of another person to that of manslaughter. People v Mendoza, 468 Mich 527, 535

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