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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v KEVIN DEWAYNE ARNOLD, Defendant-Appellant.

UNPUBLISHED February 22, 2007

No. 265907 Wayne Circuit Court LC No. 05-004763-01

Before: Owens, P.J., and Neff and White, JJ. PER CURIAM. After a jury trial, defendant Kevin Dewayne Arnold was convicted of three counts of assault with a dangerous weapon (felonious assault), MCL 750.82, one count of intentional discharge of a firearm at a dwelling or an occupied structure, MCL 750.234b, and one count of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced to concurrent terms of 28 months' to four years' imprisonment for each felonious assault conviction and for the discharge of a firearm conviction, and a consecutive term of two years' imprisonment for the felony-firearm conviction. We affirm. I. Facts Defendant resides with his wife, his children, his brother-in-law, and his brother-in-law's children at their home in Detroit. Celestine Burkes lives next door. Burkes' brother, Paul Clay, does not live with her, but Burkes baby-sits his children at her home. At the time of the events in question, Clay was engaged to Chastity Cross, defendant's niece. Clay and defendant had known each other for some time. Clay described defendant as a friend, but he and defendant's brother-in-law (who is also Cross's father) had an altercation approximately one week before the events in question. According to the prosecution's witnesses, on the evening of April 25, 2005, Burkes was baby-sitting four of Clay's minor children. At about 9:30 p.m., Clay and Cross arrived at Burkes' house to pick up his children. When they arrived, defendant was standing in his driveway drinking and yelling in the direction of Burkes' house. Clay approached defendant, who began yelling that others thought that defendant was "a joke" and warned that he would "kill me a bitch today." When Clay asked if he was "all right," defendant responded that he was "about to f--- me somebody up." Clay did not respond.

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Clay and Cross entered Burkes' house. Clay continued to watch defendant from a window of Burkes' house. Defendant loudly threatened to shoot Burkes' house. He then opened the trunk of a white Dodge Intrepid parked in his driveway. The trunk contained two weapons, a gray semi-automatic handgun and an AK-47 rifle. Defendant repeatedly opened and closed the trunk, grabbed the weapons inside the trunk and then put them back, and walked around the Intrepid, yelling profanities at Burkes' house. At some point, defendant took the handgun from the trunk, waved it and aimed it at Burkes' house, and threatened, "I'm going to kill that m----- f----." He ran toward Burkes' house, pointed the handgun at an upstairs story of the house, and fired twice. Defendant then walked back to the Intrepid, took a drink from a bottle of liquor, opened the trunk, and placed the handgun inside. Defendant also retrieved the AK-47 from the trunk and gave it to an unidentified individual seated on the porch of his home. As these events occurred, Clay called the police to report the shooting. Soon after defendant fired the handgun, Bruce Perfect stopped his truck in Burkes' driveway. Clay and Perfect were friends, and Perfect had planned to stop by Burkes' home to visit Clay and his children. When Perfect arrived, Clay walked outside and approached the truck to talk. Perfect did not leave the truck at this time. Shortly thereafter, the police arrived. When they arrived, defendant yelled "y'all m----- f----- can't get me" and went inside his house. After Clay informed the officers that defendant had fired two shots at the house, the officers approached defendant's house to speak with him. Defendant's son answered the door and refused to let the officers enter. Clay also heard defendant argue with the officers and tell them to get away from his house. The officers discontinued the interview with defendant and told Clay that there was "nothing they could do." Before leaving, they told Clay to call if defendant again came outside. Perfect sat in his truck as Clay reentered Burkes' home and prepared his children to leave. Clay then went back outside. As he approached Perfect's truck, defendant came back outside and ran toward Perfect and Clay, holding a handgun. When he was approximately 25 feet away from Clay and Perfect, defendant pointed the handgun at the men, stating, "You m----f------ thought that the police was [sic] going to get me, they can't get me, I'm a lion, I'm a god, you thought that was [sic] going to take my guns." As Clay ducked behind his vehicle, which was parked in front of Perfect's truck, defendant retrieved the AK-47 rifle. Clay then ran across the street and hid behind a large tree. Defendant, holding the rifle, advanced toward Perfect, who was still in the truck. Perfect backed his truck approximately 20 feet. Then, defendant pointed the rifle at him and yelled, "I see you little fat h-----, I'll shoot you're [sic] ass." Perfect quickly exited his vehicle and ran to the tree where Clay was hiding. After reaching the tree, Perfect called "911" and informed the operator that defendant was threatening him with an "assault rifle." Defendant then returned to his house and set the AK-47 rifle down on his porch. At this point, Shanise Tramble was walking down the street toward Burkes' house. She planned to visit Burkes' daughter, a close friend. When Tramble passed defendant's house, he pointed a handgun at her and asked, "Who that?" Defendant then stated, "Who the f--- that . . . I'll kill you, bitch." Tramble was shaken by the encounter but managed to identify herself. Defendant responded, "You little bitch, you almost got shot, get the f--- away from here, I'll kill you." Tramble ran inside Burkes' house. -2-


Soon thereafter, the police arrived. When defendant saw the first squad car approach, he ran inside his house and shut the door. After the officers arrived, Clay and Perfect informed them of defendant's actions. The officers surrounded defendant's home and told him to come outside. Defendant opened his door and stood in the entryway, yelling at the officers when they approached. After a short struggle, the police handcuffed and arrested defendant. II. Sufficiency of the Evidence/Great Weight of the Evidence Defendant argues that the prosecution presented insufficient evidence to support his convictions. He also argues that he is entitled to a new trial because his convictions are against the great weight of the evidence. We disagree. A. Standards of Review We review de novo claims of insufficient evidence in a criminal trial. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). We view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v Tombs, 472 Mich 446, 459; 697 NW2d 494 (2005). Because defendant failed to move for a new trial, and because this Court previously denied defendant's motion to remand this case to the trial court to permit him to file and argue a motion for a new trial, this issue is not preserved. People v Musser, 259 Mich App 215, 218; 673 NW2d 800 (2003). We review an unpreserved claim that a conviction is contrary to the great weight of the evidence for plain error affecting defendant's substantial rights. Id. Reversal is warranted only when a plain error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of the judicial proceedings. People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999). To determine whether a verdict is contrary to the great weight of the evidence, we review the whole body of proofs. People v Herbert, 444 Mich 466, 475; 511 NW2d 654 (1993), overruled on other grounds People v Lemmon, 456 Mich 625; 576 NW2d 129 (1998). A verdict is contrary to the great weight of the evidence if "the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand." Musser, supra at 218-219. B. Felonious Assault "The elements of felonious assault are (1) an assault, (2) with a dangerous weapon, and (3) with the intent to injure or place the victim in reasonable apprehension of an immediate battery." People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999). To commit an assault, one must show "either an attempt to commit a battery or an unlawful act that places another in reasonable apprehension of receiving an immediate battery." People v Grant, 211 Mich App 200, 202; 535 NW2d 581 (1995), quoting People v Johnson, 407 Mich 196, 210; 284 NW2d 718 (1979). "Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime." Carines, supra at 757, quoting People v Allen, 201 Mich App 98, 100; 505 NW2d 869 (1993).

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In this case, the prosecution presented sufficient evidence to permit a reasonable juror to conclude that defendant assaulted Clay, Perfect, and Tramble with a dangerous weapon. First, defendant pointed a firearm at each victim. A reasonable juror could conclude that these actions placed the victims in reasonable apprehension of being shot. Second, each victim testified that defendant held a gun during the assault. A gun is considered a dangerous weapon for purposes of the felonious assault statute. MCL 750.82(1); People v Smith, 231 Mich App 50, 53; 585 NW2d 755 (1998). Finally, a reasonable juror could conclude that defendant either intended to hurt each victim or intended to place each victim in reasonable apprehension of an immediate battery. Defendant was angry regarding a prior altercation between Clay and his brother-in-law and threatened Clay when he arrived at Burkes' home. When defendant assaulted Clay and Perfect, he pointed a handgun at the men and threatened to kill them. Shortly thereafter, he again assaulted Perfect by pointing a rifle at him and threatening to shoot him. Later, when Tramble walked near defendant's home, he pointed a handgun at her and threatened to kill her if she didn't "get . . . away from here." After considering evidence that defendant repeatedly threatened to shoot or to kill the victims, a reasonable juror could conclude that defendant intended to either injure them or to place them in reasonable fear and apprehension of an immediate battery. Accordingly, the prosecution presented sufficient evidence to establish that defendant committed felonious assault against Clay, Perfect, and Tramble. Similarly, we conclude that defendant's convictions for felonious assault are not against the great weight of the evidence. Although defendant presented witnesses who testified that he did not confront Clay or Perfect with a weapon, that they did not hear shots fired that evening, and that defendant was arrested because he was intoxicated, the question whether the sequence of events presented by his witnesses should be believed instead of the testimony presented by the victims is one of credibility. "Questions of credibility are left to the trier of fact and will not be resolved anew by this Court." Avant, supra at 506. Similarly, although defendant argues that the victims' statements at trial were inconsistent and that they were not credible witnesses, we will not question the jury's assessments regarding the credibility of witnesses or the weight ascribed to their testimony. See People v Palmer, 392 Mich 370, 375-376; 220 NW2d 393 (1974). "Conflicting testimony, even when impeached to some extent, is an insufficient ground for granting a new trial" based on the weight of the evidence. People v McCray, 245 Mich App 631, 638; 630 NW2d 633 (2001), quoting Lemmon, supra at 647. Defendant failed to show that the evidence preponderates so heavily against his convictions for felonious assault that it would be a miscarriage of justice to allow the verdict to stand. See Musser, supra at 218-219. Accordingly, the trial court did not plainly err when it upheld defendant's convictions, and he is not entitled to a new trial. C. Discharge of a Firearm at a Dwelling or an Occupied Structure The prosecution presented sufficient evidence to support defendant's conviction for discharge of a firearm at a dwelling or an occupied structure. A defendant is guilty of this offense if he "intentionally discharges a firearm at a facility that he . . . knows or has reason to believe is a dwelling or an occupied structure . . . ." MCL 750.234b(1). In this case, Clay's testimony was sufficient to establish that defendant committed this offense. Defendant was Burkes' next-door neighbor and was outside when Clay entered her home. Clay watched from inside Burkes' house as defendant removed a handgun from the trunk of a car, ran toward the -4-


house pointing the handgun at the upper story of the house, and fired two shots. At the time, at least seven individuals, including several minor children, were inside the house. Accordingly, a reasonable juror could conclude that defendant shot at Burkes' house, although he knew or reasonably should have known that the Burkes' house was a dwelling and was occupied at the time of the shooting. Similarly, defendant's conviction for this offense is not against the great weight of the evidence. Defendant argues that Clay testified that defendant shot at Burkes' house, but stated on cross-examination that he shot in the air in the direction of Burkes' house. However, the prosecution was not required to show that defendant actually struck the house when he fired the handgun at Burkes' residence. See People v Wilson, 230 Mich App 590, 592-593; 585 NW2d 24 (1998) (holding that evidence that the defendant was shooting toward or in the direction of an occupied house was sufficient to support the defendant's conviction for intentionally discharging a firearm at a dwelling or occupied structure). Further, when Clay acknowledged, in response to defense counsel's question, that he "guess[ed] you could say that" the shots were fired in the air, he qualified his statement by adding, "But it was fired in the direction of the house, at the top of the house." This is consistent with Clay's earlier testimony that defendant shot at the upper part of the house. Defendant failed to show that the evidence preponderates so heavily against his conviction for intentionally discharging a firearm at a dwelling or an occupied structure that it would be a miscarriage of justice to allow the verdict to stand. Musser, supra at 218-219. Accordingly, the trial court did not plainly err when it upheld defendant's conviction, and he is not entitled to a new trial. D. Felony-Firearm Finally, the prosecution presented sufficient evidence to establish defendant's felonyfirearm conviction. A defendant commits felony-firearm when he "carries or has in his . . . possession a firearm when he . . . commits or attempts to commit a felony . . . ." MCL 750.227b. Several witnesses testified that defendant carried and possessed a gun at the time of the events in question. Because the prosecution presented sufficient evidence to find defendant guilty of felonious assault and discharge of a firearm at a dwelling or an occupied structure, either offense may serve as the underlying felony for the felony-firearm conviction. People v Guiles, 199 Mich App 54, 58-59; 500 NW2d 757 (1993). Similarly, defendant failed to show that the evidence preponderates so heavily against his felony-firearm conviction that it would be a miscarriage of justice to allow the verdict to stand, and the trial court did not plainly err when it upheld defendant's conviction. Musser, supra at 218-219. He is not entitled to a new trial on this charge. III. Motion for Mistrial Defendant argues that the trial court erroneously denied his motion for a mistrial. We disagree. We review the trial court's denial of defendant's motion for a mistrial for an abuse of discretion. People v Haywood, 209 Mich App 217, 228; 530 NW2d 497 (1995). Defendant argues that the trial court should have granted his motion for a mistrial because Perfect made an unsolicited comment that defendant "had just got out of prison for murder" when testifying at trial. "A mistrial should be granted only for an irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a fair trial." Id. (citations -5-


omitted). However, an unresponsive, volunteered answer that injects improper evidence in a trial is generally not grounds for a mistrial, especially if the prosecutor did not know in advance that the witness would give the unresponsive testimony or did not otherwise encourage the witness to give the testimony. See People v Griffin, 235 Mich App 27, 36-37; 597 NW2d 176 (1999). The determination whether to grant a mistrial because an unresponsive answer has been given is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. People v Lumsden, 168 Mich App 286, 298-299; 423 NW2d 645 (1988). Perfect's comment was unsolicited, and defendant does not argue, nor does the trial court record indicate, that the prosecutor knew that Perfect planned to make this comment or attempted to elicit this testimony. The line of questioning that the prosecutor followed before Perfect made the unsolicited comment, and the question to which Perfect gave the unsolicited response, were proper and did not appear to be calculated to elicit improper testimony. Defendant's counsel immediately objected and the trial court told the jury to ignore Perfect's statement. The prosecutor did not mention Perfect's comment at any point during the trial. Further, the trial court administered an additional cautionary instruction to the jury the following day. Jurors are presumed to follow the trial court's instructions. People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Although the unsolicited statement might be construed as an irregularity, it was not so egregious that it denied defendant a fair trial. The trial court did not abuse its discretion when it denied defendant's motion for a mistrial. IV. Right to Fair and Impartial Trial Defendant argues that, in several respects, the trial court denied his constitutional right to a fair and impartial trial. Specifically, defendant contends that the trial court failed to remain impartial when making its evidentiary rulings, repeatedly disparaged defense counsel and defense witnesses' testimony, exhibited partiality toward the prosecution and the prosecution's witnesses, permitted the prosecutor to make arguments unsupported by the evidence in her closing argument, and gave an improper missing witness instruction. Defendant's arguments are without merit.

A. General Law and Standard of Review "The Sixth Amendment of the United States Constitution and article 1,

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