If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

March 18, 2021

V No. 350817

Wayne Circuit Court

SEAN MARTIN, LC No. 19-003410-01-FH

Defendant-Appellant.

Before: SWARTZLE, P.J., and MARKEY and TUKEL, JJ.

PER CURIAM.

Defendant appeals by right his bench trial convictions of unlawful imprisonment, MCL 

750.349b, assault with a dangerous weapon (felonious assault), MCL 750.82, intent to commit 

arson (preparation to burn a dwelling), MCL 750.79(1)(d)(vi), and domestic violence, MCL 

750.81(2). He was sentenced as a fourth-offense habitual offender, MCL 769.12, to 12 to 20 years’

imprisonment for the unlawful imprisonment conviction, 5 to 15 years’ imprisonment for the 

felonious assault conviction, 12 to 20 years’ imprisonment for the preparation-to-burn conviction, 

and 137 days’ incarceration for the domestic violence conviction. On appeal, defendant solely 

contends that the evidence was insufficient to support the preparation-to-burn conviction. We 

disagree. Accordingly, we affirm.

Police officers were dispatched to the home of Rose Fox after receiving reports of “a 

cutting.” Officers found Fox in the street outside her home with a gash on her face and blood 

splattered on her clothing. Defendant was inside Fox’s residence with her children. The police 

ordered defendant, who had been living with Fox and her children, to vacate the home. Defendant 

refused and instead squirted lighter fluid on the front door of the residence. A police officer 

testified that defendant “poured [lighter fluid] on the front door, and [then] left a trail leading to 

the upstairs.” Officers entered the home where they found defendant in an upstairs bedroom 

holding Fox’s two young sons, EF and NF, at knifepoint.

The police negotiated with defendant in an effort to free the children, and defendant 

eventually did allow EF to leave. NF, however, remained with defendant. During the negotiation 

period, defendant repeatedly asked officers for a lighter or a lit cigarette. Believing that defendant
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might use a lighter or lit cigarette to start a fire, the police refused to supply him with either ignition 

mechanism. When officers voiced their refusal, defendant stated, “I got gas up here, too. I’m

gonna torch this bitch.”

1

 Defendant had also poured an unknown liquid on the carpet of the upstairs 

hallway, which the officers believed was a fire accelerant. Defendant testified on his own behalf, 

and he asserted that he did not intend to burn the home—it was merely a scare tactic. At one point, 

defendant did tell the officers, “I ain’t gonna do that,” referring to setting a fire. Defendant did not 

have in his possession anything with which to ignite the flammable liquid. The police were 

subsequently able to subdue defendant, and he was arrested. Defendant was convicted and 

sentenced as indicated earlier. This appeal ensued.

On appeal, defendant argues that the evidence was insufficient to sustain the preparationto-burn conviction because the evidence failed to show that he had the requisite intent considering 

that he lacked the ability or tools to ignite or start a fire, e.g., a lighter, matches, or lit cigarette, 

despite pouring flammable liquids in the dwelling.

In People v Kanaan, 278 Mich App 594, 618-619; 751 NW2d 57 (2008), this Court 

addressed a claim of insufficient evidence in the context of a bench trial, stating as follows:

We review claims of insufficient evidence de novo. When ascertaining 

whether sufficient evidence was presented in a bench trial to support a conviction, 

this Court must view the evidence in a light most favorable to the prosecution and 

determine whether a rational trier of fact could find that the essential elements of 

the crime were proven beyond a reasonable doubt. This Court will not interfere with 

the trier of fact’s role of determining the weight of the evidence or the credibility 

of witnesses. Circumstantial evidence and reasonable inferences that arise from 

such evidence can constitute satisfactory proof of the elements of the crime. All 

conflicts in the evidence must be resolved in favor of the prosecution. [Citations 

omitted.2]

“[B]ecause it can be difficult to prove a defendant’s state of mind on issues such as 

knowledge and intent, minimal circumstantial evidence will suffice to establish the defendant’s 

state of mind, which can be inferred from all the evidence presented.” Id. at 622. “A factfinder 

can infer a defendant’s intent from his words or from the act, means, or the manner employed to 

commit the offense.” People v Hawkins, 245 Mich App 439, 458; 628 NW2d 105 (2001) (citation 

omitted).

“A person who uses, arranges, places, devises, or distributes an inflammable, combustible, 

or explosive material, liquid, or substance or any device in or near a building, structure, other real 

property, or personal property with the intent to commit arson in any degree . . . is guilty of a crime 

 

1 This statement by defendant was picked up by the audio of an officer’s body camera. A DVD of 

the officer’s body camera footage was admitted into evidence.

2 This standard derives from Jackson v Virginia, 443 US 307, 319; 99 S Ct 2781; 61 L Ed 2d 560 

(1979). Our Supreme Court has also expressly held that the Jackson standard applies to bench 

trials. People v Petrella, 424 Mich 221, 269-270; 380 NW2d 11 (1985).
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. . . .” MCL 750.79(1) (emphasis added). The trial court, sitting as factfinder, concluded that 

defendant had the requisite intent on the bases that he expressly threatened to torch the home and

that he had asked the police for a lighter, matches, and a lit cigarette. The trial court opined that if 

defendant had found “the means to burn the house to the ground, he would have done that[.]” 

Although the court indicated that it believed that defendant threatened to burn the dwelling as a 

scare tactic, it also determined that he did in fact have the intent to burn the home and that 

defendant did not do so only because he did not have access to anything to ignite the flammable 

liquid.

In light of defendant’s threat that he was going to “torch” the home and the evidence that 

defendant specifically asked the police for an item that could be used to ignite the flammable liquid 

that he poured around the home, there was more than sufficient evidence to support the 

preparation-to-burn conviction. The “torch” statement constituted direct evidence of an intent to 

commit arson, and the evidence regarding defendant’s requests for a lighter and a lit cigarette 

constituted circumstantial evidence of an intent to burn the home. The fact that defendant did not 

have the immediate or present means to start a fire did not negate his willingness and intention to 

commit arson. Although there was also evidence that defendant did not intend to burn the 

dwelling, credibility issues were for the trial court to assess as the trier of fact and all conflicts in 

the evidence must be resolved in favor of the prosecution. Kanaan, 278 Mich App at 618-619.

Defendant contends that his conviction must be reversed under our Supreme Court’s 

decision in People v Reeves, 458 Mich 236; 580 NW2d 433 (1998). We conclude that defendant’s 

reliance on Reeves is entirely misplaced. The Reeves Court stated and ruled:

We are asked to consider whether evidence of a victim’s reasonable 

apprehension of an immediate battery satisfies the assault element of assault with 

intent to rob while unarmed (AWIR-U). The Court of Appeals reversed defendant’s 

conviction of that offense on the basis that there was no proof that defendant 

possessed the actual ability to carry out the threatened battery. We conclude that an 

assailant’s undisclosed inability to do harm to an intended victim does not preclude 

a conviction of an AWIR-U offense, as long as the victim’s apprehension of 

imminent injury was reasonable. We reverse the decision of the Court of Appeals 

and remand this case to the trial court for reinstatement of defendant’s conviction. 

[Id. at 237.]

Here, defendant argues that “[u]nlike Reeves, an attempt to commit arson does not involve 

the reasonableness of whether the officers believed that an actual arson would occur. In fact, the 

opposite is true.” Defendant is contending, apparently, that because this case is unlike or the 

opposite of Reeves, the absence of an actual ability to burn the home precluded conviction as intent 

could not be established. We can make no sense of this argument. Reeves has absolutely no 

application to or bearing on resolution of this appeal. Reeves did not speak to the issue regarding 

whether a defendant’s inability to actually perform an act precludes a determination that the 

defendant intended to perform the act. Rather, Reeves merely indicated that a defendant’s inability 

to perform an act does not preclude, in the context of the assault element of assault with intent to 

rob, a determination that the victim was under a reasonable apprehension of imminent injury under 

the surrounding circumstances, which is a matter that does not concern the defendant’s intent. The 

fact that the preparation-to-burn charge does not include a reasonable-apprehension element from 
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a victim’s viewpoint does not logically mean that an inability to start a fire precludes a finding of 

an intent to start a fire. A person can have the intent to commit a criminal act before obtaining the 

ability to carry out the act. And in this case, we think it clear that defendant could have had the 

intent—and, more to the point, that there was sufficient evidence from which the factfinder could 

conclude that he did have the intent—to burn the home, even though he may not have had the 

present ability to set the dwelling on fire.

Defendant also points to our Supreme Court’s holding in People v Jones, 443 Mich 88, 

100; 504 NW2d 158 (1993), in which the Court stated:

An attempt consists of: (1) an intent to do an act or to bring about certain 

consequences which would in law amount to a crime; and (2) an act in furtherance 

of that intent which, as it is most commonly put, goes beyond mere preparation. 

Mere preparation is distinguished from an attempt in that the former consists of 

making arrangements or taking steps necessary for the commission of a crime, 

while the attempt itself consists of some direct movement toward commission of 

the crime that would lead immediately to the completion of the crime. [Quotation 

marks and citations omitted.]

Once again, defendant relies on a case that has no pertinence to the instant appeal. We are 

not addressing a case involving a charge of an attempted offense. Jones stands for the 

unremarkable proposition that to be guilty of an attempted crime, a defendant must have the intent 

to commit a particular offense and must take a step toward commission of the crime beyond mere 

preparation. The Jones Court did not indicate that taking a step toward the commission of a crime 

beyond mere preparation is required to establish the “intent” element; rather, it is required to prove 

the “attempt” element. We have no “attempt” element in this case. The crime of preparation-toburn requires an affirmative physical act involving, for example, the placement of a flammable or 

inflammable liquid in a structure, accompanied by an intent to burn, which does not require proof 

of some additional act or of an ability to act, only some evidence of intent. And in this case there 

was proof of an intent to burn by the words spoken by defendant himself, including his requests to 

police for an item that could be used to start a fire and his threat to set the home on fire.

We affirm.

/s/ Brock A. Swartzle

/s/ Jane E. Markey

/s/ Jonathan Tukel