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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 28, 2016

v No. 325975 Wayne Circuit Court LULA MAE SMITH, LC No. 14-004304-FC

Defendant-Appellant.

Before: M URPHY , P.J., and S AAD and B ORRELLO , JJ.

P ER C URIAM

. Defendant appeals as of right her jury trial convictions of se cond-degree murder, MCL 750.317, felon in possession of a firearm, MCL 750.224f, and po ssession of a firearm during the commission of a felony (felony- firearm), MCL 750.227b. Defenda nt was sentenced, as a fourth habitual offender, MCL 769.12, to 20 to 30 years’ imprisonment for her second-degree murder conviction, three to five years’ imprisonment for her felon in possession of a firearm conviction, and two years’ imprisonment fo r her felony-firearm conviction. For the reasons set forth in this opinion, we affirm.

I. FACTS

On April 13, 2013, defendant’s nephew, Brandon Smith, brought over dinner for defendant and her husband, Dennis Neubia. Brandon attempted to give the food to defendant, but defendant was asleep on the living room couch. Neubia thentook the food from Brandon and threw it on the couch. Brandon told officers that defendan t was upset with Neubia because Neubia had been stealing her me dication and selling it in excha nge for crack cocaine.

Early the next morning, Officer Anthony Byrd of the Detroit Po lice Department responded to a 911 call at defendant’s home. Defendant indicat ed that she had shot Neubia. Defendant led Byrd to a bedroom i n the downstairs flat of the h ome. Upon entering the bedroom, Byrd observed Neubia lying face down on the floor. Wh en Neubia was turned over, Byrd observed that Neubia had b een shot once in the chest.

Two other officers, Cheryl Pe oples and Gary Przybyla, spoke wi th defendant at the scene. When Peoples approached defendant, defendant was upset and aske d, “am I going to jail?” Defendant told Przybyla that she was home alone with Neubia at the time of the shooting. As Przybyla was speaking with defendant, Neubia’s phone began to r ing. Przybyla answered the-2- phone and began speaking with defe ndant’s sister, Debra Smith. Debra lived in the upper flat of the home and returned upon speaking with Przybyla. When she ar rived, Debra led Przybyla upstairs to her bedroom. Przybyl a then searched Debra’s room a nd discovered a .38 caliber revolver hidden underneath the m attress. The revolver had one spent casing and fi ve live bullets. Debra testified that she did not place the weapon there. In a jailhouse phone conversation, defendant told Debra that “it was an accident.” During his clo sing argument, defense counsel argued that the evidence supporte d a finding that defendant acc identally discharged the firearm while in bed with Neubia. Howev er, counsel did not request an accident instruction.

II. ANALYSIS

Defendant first argues that there was insufficient evidence to support her second-degree murder and felony-firearm convictions.

We review de novo a challenge to the sufficiency of the eviden ce. People v Mayhew , 236 Mich App 112, 124; 600 NW2d 370 (1999). In reviewing a challen ge to the sufficiency of the evidence, we view the evidence ina light most favorable to the prosecution to determine whether a rational trier of fact could find that all of the essential e lements of the crime were proven beyond a reasonable doubt. People v Johnson , 460 Mich 720, 723; 597 NW2d 73 (1999).

The elements of second-degree murder are as follows: (1) a dea th, (2) caused by an act of the defendant, (3) with malice, and (4) without justification. People v Goecke , 457 Mich 442, 463-464; 579 NW2d 868 (1998). 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 willful d isregard of the likelihood that the natural tendency of such behavior is to cause death or great bo dily harm. Id . at 464. “The facts and circumstances of a killing may give rise to an inference of malice.” People v Flowers , 191 Mich App 169, 176; 477 NW2d 473 (1991).

Defendant does not contest that her actions caused the death o f Neubia. Rather, defendant contends that she acci dentally killed Neubia and that the element of malice was not supported by sufficient evidence. Viewed in a light most favor able to the prosecution, a rational juror could have concluded beyond a reasonable doubt that defen dant acted with either the intent to kill, intent to cause great bodily harm, or in wanton and wi llful disregard of the likelihood of death or great bodily harm. Goecke , 457 Mich at 464. The medical examiner testified that the victim died of a gunshot to the ch est; the medical examiner exp lained that the gunshot was fired from a gun that was a distance of three to four feet away. In addition, police found a gun hidden under a mattress in the upstairs of the home, which was indicat ive of defendant’s consciousness of guilt. See People v Kowalski , 489 Mich 488, 508-509; 803 NW2d 200 (2011) (noting that concealment of evidence is probative of a defendant’s conscious ness of guilt). Finally, Brandon’s statement to police that defendant was upset with Neu bia for stealing her medication supported the inference that defe ndant had motive to kill Neubi a. See People v Unger , 278 Mich App 210, 223; 749 NW2d 272 (2008) (“[a]lthough motive is not an essential element of the crime, evidence of motive in a prosecution for murder is always relevant.”). In short, on this record, there was sufficient ev idence to support defendant’s co nviction of second-degree murder.

There was also sufficient evidence to support defendant’s felo ny firearm conviction. “The elements of felony-firearm are that the defendant possesse d a firearm during the-3- commission of, or the attem pt to commit, a felony.” People v Johnson , 293 Mich App 79, 82-83; 808 NW2d 815 (2011). Defendant does not dispute that she was i n possession of a firearm, and as stated above, there was sufficient evidence to prove that de fendant committed second-degree murder. Therefore, there was sufficient evidence to support de fendant’s felony-firearm conviction.

Defendant next argues that the t rial court erred when it allow ed the prosecution to reopen proofs to introduce evidence of defendant’s prior felony convic tion for purposes of the felon in possession of a firearm charge.

We review a trial court’s decision to reopen the proofs for an abuse of discretion. People v Herndon , 246 Mich App 371, 419; 633 NW2d 376 (2001). “An abuse of dis cretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes.” Unger , 278 Mich App at 217.

“Relevant in ruling on a motion to reopen proofs is whether an y undue advantage would be taken by the moving party and whether there is any showing o f surprise or prejudice to the nonmoving party.” Herndon , 246 Mich App at 420 (citations and quotation marks omitted). Here, before the prosecution moved to reopen proofs, defendant had already stip ulated to the introducing of her prior felony c onviction in order to establis h that defendant was ineligible to possess a firearm at the time of Neubia’s death. Thus, defenda nt cannot show that she was surprised or prejudiced or that the prosecution was afforded an undue advantage when the trial court reopened proofs and the tri al court did not abuse its dis cretion in so doing. Id

. Defendant next argues that she was denied her right to the eff ective assistance of counsel when trial counsel failed to re quest a jury instruction on the defense of accident.

Whether a defendant was denied the effective assistance of cou nsel involves a mixed question of fact and constitutional law. People v LeBlanc , 465 Mich 575, 582; 640 NW2d 246 (2002). We review constitutional issues de novo while a trial court’s findings of fact, if any, are reviewed for clear error. Id . at 583. “When no Ginther hearing has been conducted, our review [] is limited to mistakes that are apparent on the record.” People v Mack , 265 Mich App 122, 125; 695 NW2d 342 (2005).

In order to prevail on an ineffective assistance of counsel cl aim, a defendant must show that counsel rendered deficient performance on an object standard and that there is a reasonable probability that, but for counsel’s deficient performance, “the result of the proceeding would have been different.” People v Carbin , 463 Mich 590, 600; 623 NW2d 884 (2001), citing Strickland v Washington , 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984).

“A criminal defendant has the right to have a properly instruc ted jury consider the evidence against him.” People v Mills , 450 Mich 61, 80-81; 537 NW2d 909 (1995), modified on other grounds, 450 Mich 1212 (1995). “The trial court’s role i s to clearly present the case to the jury and to instruct it on the applicable law.” People v Dobek , 274 Mich App 58, 82; 732 NW2d 546 (2007). “Jury instructions must include all the elements o f the offenses charged against the defendant and any material issues, defenses, and theories that are supported by the evidence.” Id. “Jury instructions are reviewe d in their entirety, and there is no error requiring reversal if the-4- instructions sufficiently protect ed the rights of the defendant and fairly presented the triable issues to the jury.” Id

. In this case, during closing argument, defense counsel argued that the shooting was accidental, stating that the gun went off while defendant was l ying in the same bed with the victim. However, defense counsel did not request an accident i nstruction. There was no strategic reason why counsel woul d have argued that the death r esulted from an accident, yet at the same time fail to request an instruction on the defense of accident. When presenting a defense theory it is objectively reasonable to request instruct ions on that defense theory in order to present the theory to the jury as a whole. Thus, given that there was no strategic reason to justify counsel’s failure, counsel acted deficiently on an obje ctive standard of reasonableness when he failed to request the instruction. Carbin , 463 Mich at 600.

Having concluded that counsel rendered deficient performance, we must proceed to determine whether counsel’s defi cient performance prejudiced th e defense. Id . This requires that we determine whether there is a reasonable likelihood that but for counsel’s failure to request the instruction, the result of the proceeding would hav e been different. Id

. Michigan Model Criminal Jury In struction 7.1 requires a descri ption of the accident that caused the death of the victim. M Crim JI 7.1. This Court has defined “accident” as “an event happening without any human agency, or if happening wholly or p artly through human agency, an event which under the circumstances is unusual and unexpecte d by the person to whom it happens.” People v Hess , 214 Mich App 33, 37; 543 NW2d 332 (1995).

In this case, we cannot find that defendant has met his burdenof proving that but for counsel’s failure, the result of the proceedings would have bee n different. Carbin , 463 Mich at 600. The jury instructions which set forth the intent element of murder made it clear to the jury that a finding of accident would be inconsistent with a finding that defendant was guilty of second-degree murder. Simply stated, if the jury had doubts re garding whether defendant had the requisite malice for second-degree murder, it would have ac quitted defendant of seconddegree murder. Instead, the ju ry found that defendant possesse d a mental state greater than accidently shooting the victim. See, People v Hawthorne , 474 Mich 174, 184; 713 NW2d 724 (2006); People v Lukity , 460 Mich 484; 596 NW2d 607 (1999); People v Rodriguez , 463 Mich 466; 620 NW 2d 13 (200), (setting forth the principle that defe ndant has the burden of demonstrating that the failure to instruct on the accident defe nse undermined the reliability of the verdict). In conclusion, while defense counsel rendered defici ent performance on an objective standard of reasonableness by failing to request an accident in struction, defendant has failed to show that counsel’s deficient p erformance prejudiced the defens e and she is not entitled to a new trial. Carbin , 463 Mich at 600. Accordingly, defenda nt is not entitled to r elief on this issue.

Finally, defendant argues that she is entitled to a new trial because trial counsel was denied the full allotment of pe remptory challenges during voir dire.

We review unpreserved constitu tional issues for plain error af fecting defendant’s substantial rights. People v Carines , 460 Mich 750, 762-763; 597 NW2d 130 (1999).-5- MCR 6.412 states that a defendant who is charged with an offen se punishable by life imprisonment is entitled to 12 peremptory challenges. MCR 6.41 2(E). MCR 2.511(E) provides that peremptory challenges are to be exercised as follows: “[f] irst the plaintiff and then the defendant must exercise one or more peremptory challenges until each party successfully waives further peremptory challenges or all of the challenges have bee n exercised, at which point jury selection is complete.” MCR 2.511(E)(3)(a). When a party indi cates a “pass,” the pass “is not counted as a challenge but is a waiver of further challenge to the panel as constituted at that time.” MCR 2.511(E)(3)(b). Because the right to peremptory ch allenges is provided by statute and court rule, the right is of non-constitutional dimension. Therefore, any error by the trial court does not entitle the defendant to automatic reversal. People v Bell , 473 Mich 275, 294- 295; 702 NW2d 128 (2005), opinion co rrected on reh 474 Mich 120 1 (2005).

A review of the record demonstrates that the trial court did n ot deny defense counsel her full number of peremptory challenges. During voir dire, defens e counsel used peremptory challenges on two prospective jurors. Towards the end of voir dire, defense counsel passed on any further peremptory challenge s and the trial court believed that the jury was empaneled. However, prospective juror 13 indicated that he had a schedulin g conflict and could not serve. Prospective juror 13 was replaced and the new prospective juror was questioned by the prosecution. The prosecution and defense passed on any challen ges to the new prospective juror, but the prosecution used a perem ptory challenge on prospective juror nine. The replacement for prospective juror nine then read aloud her answers to her quest ionnaire. The prosecution then asked all of the prospective jurors if they had been the victim s of domestic violence. After the prospective jurors answered, defense counsel asked if any of th em had been married for 20 years or more. After hearing all of the answers, the trial court ask ed the prosecution and defense if they had any challenges for cause. After the prosecution and d efense passed, the trial court stated, “this is our jury.”

While the trial court failed to ask if the parties wished to e xercise any more peremptory challenges, defense counsel clear ly indicated that he was satis fied with the jury and did not wish to make additional challenges. Defense counsel had time to rai se any issues regarding peremptory challenges prior to the commencement of opening argu ments and he did not do so. In sum, the trial court did not pl ainly err with respect to def endant’s peremptory challenges.

Affirmed.

/s/ William B. Murphy /s/ Henry William Saad /s/ Stephen L. Borrello