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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 27, 2017

v No. 331310 Wayne Circuit Court STEVE TREADWELL, JR., LC No. 15-004946-01-FC

Defendant-Appellant.

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

P ER C URIAM

. Defendant appeals as of right his bench trial convictions of v oluntary manslaughter, 750.321, 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 to of 41⁄2 to 15 years’ imprisonment for the manslaughter conviction, two to five years’ imprisonment for the felon in possession of a firearm conviction, and two years’ imp risonment for the felony-firearm conviction. For the reasons set forth in this opinion, we affi rm. 1

I. BACKGROUND
This appeal arises from the shooting death of Raychel McCoy on April 29, 2014 in the City of Detroit. On that date, d efendant requested that his br other Odell and Od ell’s girlfriend Eubeka Strickland accompany defendant’s live-in girlfriend Mala yshia Melton 2 in dropping of defendant’s children to McCoy’s mother’s home. Defendant had c hildren with both McCoy and Melton and in the past there had be en violent incidents betweenMelton and McCoy.

1 We note that in footnotes throughout their brief plaintiff att empts to file a cross appeal. By way of example, plaintiff requests of this Court that we: (1) chang e the name of the defendant to reflect defendant’s testimony; (2) change the sentencing guidel ines; (3) change the judgment of sentence. Because plaintiff failed to file a cross appeal or o therwise attempt to comply with our court rules, we did not consider any of plaintiff’s footnote re quests.

2 Melton was initially a co-defendant in this case. However, pr ior to trial, she accepted a plea deal for which she was senten ced to probation in exchange for t estifying.-2- On that date, Odell, Strickland and Melton went to McCoy’s mot her’s house whereupon McCoy allegedly tried to stab Melton through the open driver’s side window. Melton tried to disarm McCoy and when that did not work, Melton pulled her nine -millimeter and aimed it at McCoy. According to testimony McCoy backed off the automobile and the three drove back to the home where defendant and Melton lived.

Apparently, McCoy arrived at the home before ODell, Strickland and Melton. According to a neighbor of defendant, McCoy came speeding into defendant’ s driveway. The neighbor saw McCoy leave her vehicle where she was confronted by defendant. Testimony next reveals that when the three arrived back at defendant’s home, defendant and McCoy were arguing. While doing so, Melton testified that she placed her gun in a downsta irs closet. While the arguing was continuing, the neighbor heard McCoy ask “so you gonna get a gu n,” and the sound of glass shattering. According to Melt on, McCoy threw a brick through t he dining room window causing Melton to throw a brick at McCoy’s windshield. According to Me lton, defendant must have run into the house and grabbed her gun. According to testimony fro m the neighbor, he heard a scream and shots fired, one of which came through his dining ro om window. According to the neighbor, he saw McCoy lying on the ground but did not see Melt on. The neighbor testified that he did not see a gun or who shot the gun.

According to Melton, defendant came into the house, put the gu n back in the closet and told Melton to confess to the crime because she did not have a criminal record. Melton testified that defendant then left the house. When the police arrived, M elton told them that she had shot McCoy.
Additional testimony varied, quite significantly. One of defe ndant’s minor sons testified that he saw Melton shoot McCoy. Strickland testified that she saw defendant shoot into the air. Strickland testified that they c ould see McCoy hunched over as they were driving away and that defendant eventually ended up in the car somewhere down the str eet from his home and dropped him off at his uncle’s house.

The trial court found defendant guilty and sentenced him as st ated above. This appeal then ensued.

II. ANALYSIS
On appeal, defendant first argue s that there was insufficient evidence to convict him of voluntary manslaughter and felony-fi rearm. This Court will re view a challenge to the sufficiency of the evidence in a bench trial de novo. People v Lanzo Constr Co , 272 Mich App 470, 473; 726 NW2d 746 (2006). “The evidence is viewed in a li ght 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 . at 474. It is the role of the trier of fact to weigh evidence and evaluate the credibility of witnesses. People v Kanaan , 278 Mich App 594, 618-619; 751 NW2d 57 (2008).

When sufficiency of the evidence is challenged, “the question on appeal is whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” People v Hardiman , 466 Mich 417, 421; 646 NW2d 158 (2002). Further, “[c]ircumst antial evidence and-3- the reasonable inferences it permits are sufficient to support a conviction, provided the prosecution meets its constitutionally based burden of proof be yond a reasonable doubt.” People v Ericksen , 288 Mich App 192, 196; 793 NW2d 120 (2010).

Under Michigan law, the manslaughter statute, MCL 750.321, enc ompasses two types of manslaughter at common law: voluntary and involuntary. People v Townes , 391 Mich 578, 588- 89; 218 NW2d 136 (1974). Though the sentencing for manslaughte r is outlined in the aforementioned statute, courts must look to common law to expla in the elements. Id

. at 588. The Michigan Supreme Court ha s defined voluntary manslaughter a s follows:

[I]f the act of killing, though intentional, be committed underthe influence of passion or in heat of blood, produced by an adequate or reasona ble provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement, by which the control of reason was disturbed . . . then the law, o ut of indulgence to the frailty of human nature . . . regards the offense as of a l ess heinous character than murder, and gives it the designation of manslaughter. [ People v Pouncey
, 437 Mich 382, 388; 471 NW2d 346 (1991) (quotations and citation s omitted).]

Put another way, “to show volunt ary manslaughter, one must sho w that the defendant killed in the heat of passion, the passion was caused by adequa te provocation, and there was not a lapse of time during which a r easonable person could control his passions.” People v Mendoza
, 468 Mich 527, 535; 664 NW2d 685 (2003). While murder and volun tary manslaughter share the element of intent, the presence of provocation, not malice, dis tinguishes voluntary manslaughter. Pouncey , 437 Mich at 388-389. However, “provocation is not an elementof voluntary manslaughter.” Mendoza , 468 Mich at 536. Instead, “provocation is the circumstance t hat negates the presence of malice.” Id

. Our review of the record evidence presented in this matter lea ds us to conclude that legally sufficient evidence was presented at trial such that th e trial court could rationally find defendant guilty of voluntary manslaughter beyond a reasonable doubt. Melton testified that defendant had removed her gun from the downstairs closet and ha d gone outside to continue arguing with McCoy while Melton remained inside with the childr en. Melton also testified that defendant returned to the house immediately after the shooting, returned her gun to the closet, and told her to lie to the police about who was responsible for McCoy’s death. Though defendant argues on appeal that Melton’s testimony was not cred ible—and indeed, that Melton herself was the “logical” killer—this argument has no bearing o n this Court’s consideration. As referenced above, “[t]his Court will not interfere with the tri er of fact’s role of determining the weight of the evidence or the credibility of witnesses.” Kanaan , 278 Mich App at 619.

In addition to Melton’s testimony, there were also the observa tions made by defendant’s neighbor. According to the neighb or, defendant and McCoy were arguing outside just minutes prior to the shooting; he even heard McCoy ask if defendant was planning on going to get a gun. Just a short time later, the nei ghbor heard three or four shots , and saw McCoy had fallen on the ground outside. Furthermore, though Eubeka Strickland stated under the court’s questioning that she did not hear gunshots or see defendant shoot McCoy, she adm itted she observed defendant shooting “into the air.” A ra tional trier of fact could infer from this testimony that defendant was-4- the shooter who fatally shot McCoy. And as this Court has stat ed, “the reasonable inferences [circumstantial evidence] permits are sufficient to support a c onviction.” Ericksen , 288 Mich App at 196. Therefore, relevant testimony from these witnesses provided sufficient evidence for the trial court to infer tha t defendant in fact killed McCoy.

As far as the remaining elements of voluntary manslaughter—tha t the killing occurred in the heat of passion, with adequate provocation, with no cooling off period, Mendoza , 468 Mich at 535—the trial court repeatedly noted evidence of the content ious situation between defendant, Melton, and McCoy. By several accounts, all three parties were embroiled in heated arguments throughout the altercation, all of w hich provided ample evidenc e for the trial court to find that McCoy’s shooting occurred in the heat of the moment. Though th is Court has held that provocation is not an element of voluntary manslaughter, but gi ves rise to the circumstance that mitigates the killing from murder to manslaughter, id . at 536, there was sufficient evidence offered to support a finding of provocation on defendant’s beha lf as well. For example, Melton testified that McCoy had thrown a brick through defendant’s din ing room window. In fact, this brick injured defendant and Melton’s son. Glass was shattering , tempers were flaring; thus, a rational trier of fact could conclude that defendant was adequa tely provoked. See Pouncey , 437 Mich at 389-390.

Finally, the timing element—where case law explaining voluntar y manslaughter disallows a reasonable time to c ool down before the killing occ urred, People v Fortson , 202 Mich App 13, 19; 507 NW2d 763 (1993) (“Voluntary manslaughter i s an intentional killing committed . . . before a reasonable time has passed for the blo od to cool and reason to resume its habitual control.”)—is not d isputed. Testimony by both Melton and the neighbor reveals that the entire altercation, from the time McCoy arrived at defendant’s house to the time of the shooting, all occurred within a matter of minutes. Within this short tim e frame, defendant did not have the opportunity to cool down and resume rational thought. Thus, th ere was sufficient evidence presented at trial to satisfy all the elements of voluntary man slaughter, such that a rational trier of fact could find defendant guilty.

Notably, defendant does not argue on appeal that one or more e lements of voluntary manslaughter were not sufficiently established at trial; rather , defendant argues that Melton was the more logical killer, and mu ch more likely to be guilty of c ausing McCoy’s death than defendant. However, this Court’s review is limited to whether sufficient evidence was presented at trial to support a rational tr ier of fact’s finding of defen dant’s guilt beyond a reasonable doubt. See Ericksen , 288 Mich App at 196. Having found that such evidence exists, defendant is not entitled to relie f on this issue.

Defendant also challenges the sufficiency of the evidence for his felony-firearm conviction. Under the felony-fire arm statute, “[a] person who carries or has in his or her possession a firearm when he or she commits or attempts to comm it a felony . . . is guilty of a felony and shall be punished by imprisonment. . . .” MCL 750.2 27b. “The elements of felonyfirearm are that the defendant possessed a firearm during the c ommission, or the attempt to commit, a felony. One must carry or possess the firearm when c ommitting or attempting to commit a felony.” People v Johnson , 293 Mich App 79, 82-83; 808 NW2d 815 (2011) (quotations and citations omitted). Since sufficient evidence existed to convict defendant of voluntary manslaughter, as discussed supra , and the felony in this case was carried out with a-5- firearm, it follows that both elements discussed above were met . Therefore, sufficient evidence was established to convict de fendant of felony-firearm.

Next, defendant argues his waiver of a jury trial was not know ing and voluntary, and a new trial is thus required. “For an issue to be preserved for appellate review, it must be raised, addressed, and decided by the lower court.” People v Metamora Water Serv, Inc , 276 Mich App 376, 382; 741 NW2d 61 (2007). On the first day of trial, befor e opening statements were given, defendant’s counsel informed the trial court judge that defendant wished to withdraw his waiver of a jury trial, which the court denied. As such, because this issue was “raised, addressed, and decided by the lower court[,]” id ., this issue was preserved.

“The trial court’s determination that a defendant validly waiv ed his right to a jury trial is reviewed for clear error.” People v Leonard , 224 Mich App 569, 595; 569 NW2d 663 (1997). “Clear error exists when the reviewing court is left with the d efinite and firm conviction that a mistake has been made.” People v Kurylczyk , 443 Mich 289, 303; 505 NW2d 528 (1993).

“The adequacy of a jury trial w aiver is a mixed question of fa ct and law.” People v Cook
, 285 Mich App 420, 422; 776 NW2d 164 (2009). All criminal defen dants are guaranteed the right to a trial by a jury, as p rescribed by the United States Constitution. Id . “However, with the consent of the prosecutor and th e approval of the trial court, a defendant may waive his right to a jury trial.” Id . The Michigan Court Rules have codified the procedural requir ements of a defendant’s waiver of ajury trial as follows:

Before accepting a waiver, the court must advise the defendant in open court of the constitutional right to trial by jury. The court must also ascertain, by addressing the defendant persona lly, that the defendant underst ands the right and that the defendant voluntarily chooses to give up that right an d to be tried by the court. A verbatim record must be made of the waiver proceeding . [MCR 6.402(B).]

As the rule above states, a defe ndant’s waiver must be knowing and voluntary. MCR 6.402(B). A court’s compliance with the requirements listed supra ensures that a defendant’s waiver of a jury trial is knowing and voluntary; such complianc e creates a presumption that a defendant’s waiver was indeed knowingly and voluntarily made. Id . See also People v Mosly
, 259 Mich App 90, 96; 672 NW2d 897 (2003).

In the case before us, the reco rd reveals that the trial court complied with the requirements outlined in MCR 6.402(B). It appears that defenda nt’s argument is based on an incomplete transcript of the waiver taking. The amended transc ript, as displayed below, reveals the full record of defendant’s jury waiver. Though defendant a sserts that the record does not reflect that any oral colloquy oc curred between himself and the trial judge, the amended transcript of the November 20, 2015 hearing demonstrates otherw ise:

THE COURT : What is your full name?

DEFENDANT TREADWELL : Steve Treadwell.

THE COURT : What is your address?-6- DEFENDANT TREADWELL : It’s 18653 Ke lly Street.

THE COURT : What is your age?

DEFENDANT TREADWELL : Twenty-seven.

THE COURT : How far did you go in school?

DEFENDANT TREADWELL : The ninth grade.

THE COURT : Other than being locked up and the pressure of being incarcerated, are you under a ny other kind of undue pressure?

DEFENDANT TREADWELL : No.

THE COURT : Your attorney, Jennifer Colthirst, tells me that you want to waive your right to a trial by jury and allow me to be the find er of fact. Do you agree with that?

DEFENDANT TREADWELL : Yes.

THE COURT : Do you understand that a finding of guilt or innocence by me has the same force and effect as if you were found guilty or innocent by a jury. Do you understand that?

DEFENDANT TREADWELL : Yes.

THE COURT : And, you understand that by tendering that waiver to the court that you and your attorney have executed here today, I wi ll make a determination as to your guilt or innocence, and a determinatio n of guilt or innocence by me has the same force and effect as if you were fo und guilty or innocent by a jury? Do you understand that?

DEFENDANT TREADWELL : Yes.

THE COURT : Is it your desire to do that?

DEFENDANT TREADWELL : Yes.

THE COURT : Now, even though I expect you to counsel and advise with Miss Colthirst, as your lawyer, the ultimate decision as to whe ther or not you waive your right to a tria l by jury has to be yours. Do you un derstand that?

DEFENDANT TREADWELL : Yes.

THE COURT : Is that your desire?

DEFENDANT TREADWELL : Yes.-7- THE COURT : Okay. I’ll accept his waiv er as being knowingly and intelligently waived.

MS. COLTHIRST : Thank you, Your Honor.

In reviewing the exchange above, it is evident that the trial court complied with MCR 6.402(B). Additionally, we find the trial court’s line of ques tioning is similar, if not more in depth, than other colloquies this Court has accepted as conform ing to the court rule in the past. See, e.g., People v Shields , 200 Mich App 554, 560-61; 504 NW2d 711 (1993); People v Reddick , 187 Mich App 547, 550; 468 NW2d 278 (1991).

Furthermore, defendant contends that his right to a jury trial was not knowingly waived because there is no record of his understanding of the nature o f a jury trial—for example, that a jury’s verdict must be unanimous. Relevant case law reveals th is argument carries no weight with this Court: “[A] trial court is not required to explain th e unanimity required in a jury trial as compared to a bench trial . . . .” Leonard , 224 Mich App at 596. Rather, what is necessary for a valid jury trial waiver is eviden ce showing that defendant both understood he had a right to a trial by jury, and that defendant freely and voluntary waived that right. Reddick , 187 Mich App at 550. Upon questioning, defendant repeatedly affirmed his de sire to waive his right to a jury trial and demonstrated his understanding of the matter. The tr ial court record reflects that the necessary requirements were met at the time the waiver was made , and thus, defendant’s claims to the contrary are meritless . Accordingly, defendant is not e ntitled to relief on this issue.

Affirmed.

/s/ Kathleen Jansen /s/ William B. Murphy /s/ Stephen L. Borrello