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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 12, 2016

v No. 323335
Kent Circuit Court KYLE ALAN WILSON, LC Nos. 13-010129-FC;

14-002308-FH Defendant-Appellant.

Before: B OONSTRA , P.J., and S AWYER and M ARKEY , JJ.

P ER C URIAM

.

Defendant appeals by right his convictions, following a jury t rial, of second-degree murder, MCL 750.317; larceny in a building, MCL 750.360; posses sion of marijuana, MCL 333.7403(2)(d); and possession of methadone less than 25 gr ams, MCL 333.7403(2)(a)(5). Defendant was sentenced as a second-offense habitual offender, MCL 769.10, to 46 to 150 years’ imprisonment for second-degree murder, two to six years’ imprisonment for larceny in a building, two to eight years’ i mprisonment for possession of me thadone less than 25 grams, and time served for possession of marijuana. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case arises out of the death of defendant’s roommate, Bra ndon Nelson. Defendant admitted to having had an altercation with Nelson in their apar tment over defendant’s failure to pay rent and his spending of money instead on other things. De fendant stated to police that Nelson had charged him, causing defendant to duck and hit him w ith his elbow. Defendant told police that, although Nelson yelle d that he was going to kill d efendant, he did not believe that Nelson actually intended to kill him. Defendant stated that Ne lson charged him a second time, that he hit Nelson twice on the side of his head, and that Nels on fell to the ground and began snoring. Defendant denied striking Nelson while Nelson was pro ne. Defendant told police that he left the apartment, and upon his return found Nelson dead. Defendant stated that, after fruitlessly performing CPR, he took Nelson’s telephone and wall et and left the apartment because he was scared. Defendant was later apprehended. Polic e recovered a bag from the area where defendant was arrested; th e bag contained contents of Nel son’s wallet.

Several experts for the prosecution testified that Nelson’s in juries and the crime scene were consistent with him having been struck several times while lying on the ground. A forensic-2- pathologist concluded that Nels on’s death was caused by head in jury from repeated blows to the head, which could have been done by a fist. The pathologist te stified that Nelson sustained at least 7 and as many as 13 blows to the face, and had extensive bruising and lacerations around his eye and cheekbone. The pathologist testified that Nelson’s injuries were inconsistent with
defendant’s statement that Nelson had sustained the injuries wh ile standing, and that Nelson’s eye lacerations could not have been caused by him falling again st a wall. A blood- spatter analyst testified that the blood splatters at the scene were consistent with Nelson having been struck several times while on the ground.

The jury was instructed regarding both the affirmative defense of self-defense and the lesser-included offense of voluntary manslaughter. The jury co nvicted defendant as described above. This appeal followed. On appeal, defendant challenges only the sufficiency of the evidence in support of his murder conviction.

II. STANDARD OF REVIEW

This Court reviews de novo a challenge to the sufficiency of t he evidence. People v

Ericksen , 288 Mich App 192, 195; 793 NW2d 120 (2010). It “examine[s] t he evidence in a light most favorable to the prosecution, resolving all evidentiary co nflicts in its favor, and determine[s] whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt.” Id . at 196.

III. ANALYSIS

Defendant argues that his second-degree murder conviction was not supported by sufficient evidence because the prosecutor failed to disprove b eyond a reasonable doubt that he had acted in self-defense, or al ternatively because the evidenc e only supported a conviction for voluntary manslaughter. We disagree.

“Once evidence of self-defense is introduced, the prosecutor b ears the burden of disproving it beyond a reasonable doubt.” People v Fortson , 202 Mich App 13, 20; 507 NW2d 763 (1993). Self-defense is justifiable only when the defendan t “honestly and reasonably
believes his life is in imminent d anger or that there is a thre at of serious bodily h arm and that it is necessary to exercise deadly force to prevent such harm to hims elf.” People v Riddle , 467 Mich 116, 127; 649 NW2d 30 (2002). “A defendant does not act in jus tifiable self-defense when he or
she uses excessive force.” People v Guajardo , 300 Mich App 26, 35; 832 NW2d 409 (2013).

Defendant told police that he had hit Nelson in self-defense. He claimed that he hit Nelson only three times and did not hit him while he was on the ground. However, defendant’s statements to police conflict with expert testimony indicating that Nelson was struck several times while on the ground. Although defendant was not required to retreat from Nelson’s attack without responding with force, see People v Riddle , 467 Mich 116, 130; 649 NW2d 30 (2002), the jury could rationally conclude, in light of this evidence, that defendant’s use of force went-3- beyond that necessary to protect himself from death or severe b odily harm. 1 Although defendant is correct that our Supreme Court has stated that a person acti ng in self-defense need not “draw very fine distinctions concerning the extent of the injury that an infuriated and reckless assailant may probably inflict,” see id

. at 130, the jury in this case co uld rationally conclude based o n the
evidence that defendant continued to strike Nelson several time s after he no longer posed a threat, and thus used excessive force. See People v Collins, 300 Mich 34, 53; 5 NW2d 556 (1942) (sufficient evidence to negate self-defense found when t he defendant continued his assault against a victim who had fallen to the sidewalk); Guajardo , 300 Mich App at 35. Viewing the evidence in a light most favorable to the prosecuti on, and resolving all evidentiary conflicts in its favor, a rational trier of fact could have fou nd that the prosecution disproved
defendant’s self-defense th eory beyond a reasonable doubt. Ericksen , 288 Mich App at 196.

Alternatively, defendant argues that there was insufficient ev idence to prove that the killing was not done in a heat of passion, thus reducing the se cond-degree murder conviction to voluntary manslaughter. We disagree.

“Voluntary manslaughter is an intentional killing committed un der the influence of passion or hot blood produced by adequate provocation, and befo re a reasonable time has passed
for the blood to cool and reason to resume its habitual control .” People v Fortson , 202 Mich App 13, 19; 507 NW2d 763 (1993). A fact-finder must examine al l the circumstances surrounding the killing to determine whether the homicide was c ommitted in the heat of passion. People v Townes , 391 Mich 578, 589; 218 NW2d 136 (1974). “The determination o f what is reasonable provocation is a ques tion of fact for the factfinder ,” People v Pouncey , 437 Mich 382, 390; 471 NW2d 346 ( 1991), as is the determ ination regarding whe ther “a lapse of time” occurred “during which a reasonable pers on could control his passions.” Id

. at 388.

Defendant claims that Nelson’s actions of shoving him in the c hest and rushing at him were adequate provocation to make a reasonable person act out o f passion rather than reason. However, even if Nelson’s actions perhaps provoked defendant’s initial response, the evidence indicates, as stated above, that defendant continued to strike Nelson once he fell to the ground. The jury thus could have rati onally found that a lapse of time had occurred during which a reasonable person could regain control of his passions. See id . at 388. Further, defendant told police that he and Nelson did not get along very well and that Nelson was always trying to boss and push him around. Based on the circumstances of the killing , which involved a roommate dispute, and defendant’s actions following the killing, a ratio nal trier of fact could find that defendant was provoked by the ar gument, monetary issues, or exi sting bad blood between him and Nelson, but that he was not adequately provoked so as to re duce his offense to voluntary manslaughter. Fortson , 202 Mich App at 19. Viewing the evidence in the light most f avorable to the prosecution, resolving all evidentiary conflicts in its favor, a rational tr ier of fact could find

1 We note that defendant stated to police that he did not believ e that Nelson honestly intended to kill him; presumably, defendant was thus in fear that Nelson in tended to commit severe bodily harm upon him.-4- that defendant did not kill Nel son while under the influence of passion produced by adequate provocation. Ericksen , 288 Mich App at 196.

Affirmed.

/s/ Mark T. Boonstra /s/ David H. Sawyer /s/ Jane E. Markey