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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED October 1, 2015

v No. 321200 Genesee Circuit Court TMANDO ALLEN DENSON, LC No. 13-032919-FH

Defendant-Appellant.

Before: M URRAY , P.J., and M ETER and O WENS , JJ.

P ER C URIAM

. A jury convicted defendant of assault with the intent to do gr eat bodily harm less than murder, MCL 750.84. The trial court sentenced defendant as a f ourth-offense habitual offender, MCL 769.12, to 60 to 240 months’ impri sonment. Defendant appea ls as of right, and we affirm.

I. SELF-DEFENSE

Defendant first argues that the prosecution failed to satisfy its burden of presenting sufficient evidence to prove that defendant did not assault the victim, Shamark Woodward II, who defendant maintains was an intruder in his house, in object ively reasonable defense of himself and his children. We review de novo a defendant’s cont ention that the prosecutor introduced insufficient evidence to rebut a self-defense claim. People v Stevens , 306 Mich App 620, 628; 858 NW2d 98 (2014). In determining whether sufficien t evidence supported a conviction, a court must view the evidence in the light most fa vorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt or, in the context of this case, that the prosecution disproved defendant’s claim of self-defense bey ond a reasonable doubt. See, generally, People v Nowack , 462 Mich 392, 399-400; 614 NW2d 78 (2000). “The standard of review is deferential: a reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict. The scope of review is the same w hether the evidence is direct or circumstantial.” Id . at 400. “It is for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the evidence and to determi ne the weight to be accorded those inferences.” People v Hardiman , 466 Mich 417, 428; 646 NW2d 158 (2002).

The record discloses that the prosecutor introduced ample evid ence from which the jury could reasonably conclude be yond a reasonable doubt that defend ant had no reasonable basis for his theory. Defendant does not challenge the prosecutor’s intr oduction of evidence sufficient to-2- prove his guilt of assaulting Woodward while intending to infli ct great bodily harm less than murder. He argues only that the prosecutor

failed to rebut his assertion that he used force other than dea dly force against another individual in a place he had the legal right to be with no duty to retreat while he honestly and reasonably believe[d] that the use of tha t force was necessary to defend himself and/ or his children from the immine nt unlawful use of force by [Woodward].

The Michigan common law affords a person the right to employ f orce against another person if the first person posse sses an honest and reasonable b elief that he or another person faces an imminent risk of death or serious bodily harm, and the first person honestly and reasonably believes that he must employ “force to prevent such harm to himself” or another
person. People v Guajardo , 300 Mich App 26, 35; 832 NW2d 409 (2013) (internal quotation marks and citations omitted); People v Kurr , 253 Mich App 317, 320-321; 654 NW2d 651 (2002). A person can use even deadly force “to repel an immine nt forcible sexual penetration.” Id . at 321 (internal quotation marks and citation omitted). Howe ver, a person generally “does not act in justifiable self-defense when he . . . uses excessiv e force or when [he] is the initial aggressor.” Guajardo , 300 Mich App at 35. “[O]nce the defendant injects the issue of selfdefense and satisfies the initia l burden of producing some evid ence from which a jury could conclude that the elements necessary to establish a prima facie defense of self-defense exist,” the prosecutor “bears the burden of disproving . . . self-defense b eyond a reasonable doubt.” People v Dupree , 486 Mich 693, 709-710; 788 NW2d 399 (2010).

In the Self-Defense Act (SDA), MCL 780.971 et seq ., the Michigan Legislature

codified certain circumstances i n which a person may use . . . force in self-defense of another person without having the duty to retreat. Specific ally, the SDA modified the common law’s duty to retreat that was imposed on i ndividuals who were attacked outside their own home or were not subjected to a sudden, fierce, and violent attack. [ Guajardo , 300 Mich App at 35 (internal quotation marks and citations omitted).]

In this case, the parties do not dispute that defendant used no ndeadly force against Woodward. MCL 780.972(2) provides:

An individual who has not or i s not engaged in the commission of a crime at the time he or she uses force other than deadly force may us e force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.

Defendant claims that MCL 780.951( 1) applies in the present cas e; this statute stat es, in pertinent part:

Except as provided in subsectio n (2) [not applicable here], itis a rebuttable presumption in a civil or criminal case that an indi vidual who uses-3- deadly force or force other than deadly force under section 2 o f the self-defense act has an honest and reasonable belief that imminent death of, sexual assault of, or great bodily harm to himself or herself or another individua l will occur if both of the following apply:

(a) The individual against who m deadly force or force other th an deadly force is used is in the process of breaking and entering a dwelling or business premises or committing home invasion or has broken and entered a dwelling or business premises or committed home invasion and is still present in the dwelling or business premises, or is unlawfully attempting to remove another individual from a dwelling, busin ess premises, or occupied vehi cle against his or her will.

(b) The individual using deadly force or force other than dead ly force honestly and reasonably believes that the individual is engagin g in conduct described in subdivision (a).

Woodward testified that on October 22, 2012, he was 17 years o ld. Woodward and DD, defendant’s 15-year-old daughter, agreed that they had met at s chool, had been dating, and that DD had invited Woodward to her Flint home the evening of Octobe r 22, 2012. Woodward and DD further agreed that they talke d in the living room, heard a car outside, and subsequently went upstairs to DD’s bedroom.

Woodward testified that while he and DD were in the living roo m, they talked, kissed, and hugged, and after he heard a car outside, DD suggested that they “go upstairs and . . . do it.” Woodward recalled that after he and DD went upstairs, they talk ed again, hugged and kissed again, and then removed their pants and underwear. Woodward te stified that he heard footsteps on the stairs, DD got up and replaced her “bottoms,” and he was in shock in the middle of DD’s bedroom with his “bottoms” off. Woodward testified that he did nothing to fight back against defendant when defendant assaulted him. Woodward further testi fied that defendant “bash[ed]” him with a lamp, forced both him and DD to get naked, and then took photographs of them, after which defendant told him that Woodward had to deal with “[defen dant’s] homeboys” or with defendant. According to Woodwar d, defendant then began slashin g him with a knife.

Woodward testified that when defe ndant first observed him upst airs in DD’s bedroom, he was sitting on the floor several feet away from DD. Woodward d enied that he ever moved toward DD after defendant came upstairs and denied that he trie d to force DD into having sex. Woodward also denied possessing a weapon during the incident.

Defendant testified that when he arrived upstairs on the nightof October 22, 2012, Woodward was on top of DD, who was calling for assistance and l ooked scared. DD corroborated defendant’s testimony.

The jury apparently credited Woodward’s account of events, whi ch was buttressed by evidence of Woodward’s injuries. We will not revisit the jury’ s credibility determination. Hardiman , 466 Mich at 428; Nowack , 462 Mich at 400. The jury could have reasonably-4- concluded beyond a reasonable doubt that defendant had no reaso nable ground for his theory that, in assaulting Woodward, he acted to protect himself or hi s children.

II. OTHER-ACTS EVIDENCE

Defendant next argues that the trial court erred in admitting evidence of the circumstances underlying a 2002 conviction of assault with inte nt to do great bodily harm. Defendant asserts that the evidence lacked relevance toward a m aterial issue in dispute and unfairly prejudiced him. An appellate court considers de novo “[p]reliminary questions of law, including whether a rule of evidence precludes the admission of evidence . . . .” People v Burns
, 494 Mich 104, 110; 832 NW2d 738 (2013). We review for a clear abuse of discretion a trial court’s ultimate decision whether to admit evidence. People v Waclawski , 286 Mich App 634, 670; 780 NW2d 321 (2009). An abuse of discretion exists when t he court selects an outcome that falls outside the range of principled and reasonable outco mes. Id

. The trial court acted within its discretion in admitting under MRE 404(b) the other-acts evidence regarding defendant’s 2 002 assault of Tyrone Bush, whi ch the prosecutor offered to rebut defendant’s self-defense theory. “MRE 404(b) permits the admission of [other-acts] evidence on any ground that does not risk impermissible inferen ces of character to conduct.” Waclawski , 286 Mich App at 671 (internal quotation marks and citations o mitted). MRE 404(b)(1) prohibits the admission of evidence of a defendant’s other acts or crimes when introduced solely for the purpose of showing the defendant’s ac tion in conformity with his criminal character. People v Sabin (After Remand) , 463 Mich 43, 56; 614 NW2d 888 (2000). However, evidence of a defendant’s other acts or crimes qualifi es as admissible under the following circumstances: (1) the prosecutor offers the evidence for a proper purpose under MRE 404(b)(1); 1 (2) the evidence is relevant; and (3) any unfair prejudice ari sing from the admission of the other-acts evidence doe s not substantially outweigh its probative value, in accordance with MRE 403; in addition, when requested by a litigant, the court c an give the jury a limiting instruction. People v Starr , 457 Mich 490, 496; 577 NW2d 673 (1998); Waclawski , 286 Mich App at 671. “The determination whether the probative value of evidence is substantially outweighed by its prejudicial eff ect is best left to a contempo raneous assessment of the presentation, credibility, and effect of the testimony.” Waclawski , 286 Mich App at 670.

1 According to MRE 404(b)(1):

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity the rewith. It may, however, be admissible for other purposes, such as proof of mot ive, opportunity, intent, preparation, scheme, plan, or system in doing an act, k nowledge, identity, or absence of mistake or accident when the same is material, wh ether such other crimes, wrongs, or acts are contemporaneous with, or prior or s ubsequent to the conduct at issue in the case.-5- The prosecutor offered the other-acts evidence to disprove def endant’s proffered defense that he assaulted Woodward in de fending himself or his children . The prosecutor explained that in 2002 defendant had become “upset with . . . Tyrone Bush,” de fendant drove to Bush’s Whitney Street home in Detroit a nd “bashed out . . . Bush’s . . . car window,” “B ush came out on his porch,” Bush attempted to go back inside the house, and def endant “pulled out a gun and shot [Bush] in the stomach.” Defendant characterized the 2002 assau lt as solely evidence of his violent propensity and urged th e trial court to deem the 2002 a ssault irrelevant and inadmissible under MRE 403. The trial court rul ed that “[t]he Prosecutor ca n show facts of the previous assault if he wishes to show tha t [defendant] has some kind of temper [or bad judgment],” and ordered that the prosecutor coul d only ask defendant about the 2002 conviction if defendant denied the occurrence of the f acts underlying the assault.

The prosecutor offered the facts surrounding defendant’s 2002 assault of Bush to rebut defendant’s primary defense theor y at trial, that defendant ass aulted Woodward only after discovering him in DD’s bedroom about to sexually assault her. The contradiction of the selfdefense theory constituted a proper, noncharacter purpose for a dmission under MRE 404(b). The facts surrounding defendant’s 2002 assault of Bush had sign ificant probative value toward contradicting the significant te stimony that defendant introduc ed in support of the primary defense theory. People v Knox , 469 Mich 502, 511; 674 NW2d 366 (2004) (explaining that other-acts evidence must qualify a s “probative of something oth er than the defendant’s character or propensity to commit the charged crime”). The circumstances surrounding defendant’s 2002 altercation with Bush necessarily produced a level of prejudice to the defense. However, considering the substantial prob ative force toward disproving d efendant’s self-defense theory, we detect no “unfair prejudice, confusion of the issues, or mis leading the jury.” MRE 403. To the extent that defendant complains about the injection of refe rences to a purported bribery of Bush, we conclude that the trial court’s instructions that the jury not consider a bribery cured any potential unfair prejudice. People v Abraham , 256 Mich App 265, 279; 662 NW2d 836 (2003).

Defendant mistakenly characterizes this case as analogous to Knox , in which a jury convicted the defendant “of first -degree felony murder . . . wi th first-degree child abuse . . . as the predicate.” Id . at 504. The trial court admitted other-acts evidence consist ing of “[the] defendant’s past anger . . . .” Id . The Supreme Court concluded that “[t]he evidence of [the] defendant’s past demonstrations of anger were not relevant to a ny material fact at issue and did not meet the requirements” to establish a plan, scheme, or syst em. Id . at 512. The Supreme Court held that “[u]nder these circumstances, the evidence of d efendant’s past anger could only serve the improper purpose of dem onstrating that he had the bad character or propensity to harm his son.” Id . at 512-513. Unlike in Knox , the acts underlying defendant’s 2002 assault of Bush had significant probative value concerning a specialized matterin dispute: defendant’s selfdefense claim. Despite the trial court’s rather inartful wordi ng in its ruling admitting the evidence, we nonetheless find that the evidence was admissible under the unique circumstances of this case.

III. RIGHT OF CONFRONTATION

Defendant additionally argues th at the trial court’s admissionof testimony by an emergency room doctor, Dr. Faisal Mawri, about treatment render ed by another physician, Dr. Tammy Chen, violated defendant’s right of confrontation. Defen dant theorizes that the violation-6- prejudiced him in light of the prosecutor’s significant relianc e on the nontreating doctor’s testimony regarding the seriousne ss of Woodward’s injuries. We review de novo “[a] preliminary issue of law regarding admissibility based on construction of a constitutional provision . . . .” People v Jambor (On Remand) , 273 Mich App 477, 481; 729 NW2d 569 (2007). We review for a clear abuse of discretion a trial cour t’s ultimate decision whether to admit evidence. Waclawski , 286 Mich App at 670.

We conclude that the trial court acted within its discretion i n admitting the evidence in question.

Both the United States and Michigan constitutions guarantee a criminal defendant the right to confront t he witnesses against him or he r. US Const, Am VI; Const 1963, art 1, § 20. To preserve this right, testimoni al hearsay is inadmissible against a criminal defendant unless the declarant is unavailable at trial and the defendant had a prior opportunity to cross-examin e the declarant. However, if the hearsay is nontestimonial, the Confrontation Cl ause does not restrict state law from determining admissibility.

Statements are testimonial if the “primary purpose” of the sta tements or the questioning that elicits them is to establish or prove past events potentially relevant to later criminal prosecution. [ People v Garland , 286 Mich App 1, 10; 777 NW2d 732 (2009) (internal quota tion marks and citations omi tted).]

Statements also qualify as “testimonial” if the circumstances s urrounding their making “objectively indicated that the s tatement[] would be available for use in a later prosecution . . . .” Id . (internal quotation marks and citation omitted).

On September 3, 2013, the prosecutor filed a motion to remove from his witness list Dr. Tammy Chen. The prosecutor stated that he had intended to call at trial two docto rs “involved in [Woodward’s] treatment: Dr. Tammy Chen, a resident, who did the actual stitching and stapling; and Dr. Faisal Mawri, the atte nding physician who observed the victim’s injuries and supervised Dr. Chen.” The prosecutor averred that Dr. Chen lived in Calif ornia, her testimony concerning Woodward’s injures and treatment w as cumulative of Dr. Mawri’s testimony, and the requirement that the prosecutor produce Dr. Chen would involve “an expensive and timeconsuming waste of resources.” D efendant objected that his rig ht of confrontation gave him the right to question Dr. Chen, who “personally interacted with [Wo odward], even at times when . . . Dr. Mawri was not present.” The trial court ruled from the ben ch that the prosecutor “can use the medical reports . . . and . . . can delete [Dr. Chen] as a witness.” The court did not specifically address defendant ’s right of confrontation.

Dr. Mawri testified at trial regarding a medical examination o f Woodward at the Flint Hurley Hospital’s emergency department. Dr. Mawri clarified th at he personally observed Woodward’s lacerations and watche d Dr. Chen staple and suture t he lacerations. Both counsel elicited from Dr. Mawri that wh en Woodward arrived at the hospi tal, he seemed disoriented, and Dr. Mawri opined that, without t reatment, Woodward’s injuries w ould endanger his health. Significantly, Dr. Mawri testifie d that he helped Dr. Chen prep are Woodward’s medical records.-7- Because Dr. Mawri’s testimony concerned his personal observatio ns, defendant has not established any viol ation of the right of confrontation.

IV. SCOPE OF CROSS-EXAMINATION

Defendant further challenges the trial court’s refusal to perm it questioning of Woodward about a prosecutorial grant of i mmunity or other promise not to charge him for assaulting DD.

The trial court acted within its discretion in refusing defend ant’s request to question Woodward about a potential deal w ith the prosecutor. The prose cutor posited as irrelevant to any issue in the case “the fact that the Genesee County Prosecu tor’s Office made a decision not to charge” Woodward or offer him immunity or a plea deal. Defe ndant responded that the promise not to charge Woodward constituted an incentive “to not tell the truth” and was relevant to Woodward’s credibility. Def endant elaborated as follows:

[W]hen a person consents to sex and then subsequently changes t heir mind and say [sic] “no” and you continue, thenthat is clearly a crime .

. . . And if that’s the case, . . . and if . . . [DD] then files a c omplaint with the police and if the Prosecutor decides not to charge, . . . and a dvises the alleged . . . witness [Woodward] that . . . they’re not going to charge, . . . that’s an incentive not to tell the truth. And so I think that it is important and . . . probative especially . . . when it comes to me having to cross-examine [W oodward] in this case as to the fact that he’s not being charged in this matter.

The prosecutor replied:

[I]f the witness is told that you give . . . truthful testimony and you’re not going to be charged, a hundred percent the jury should know that. But w hen the witness is told, “Hey, our office isn’t charging you, we could change our minds. But I’m not aware of any plan to charge you and there’s no immunity her e . . . there’s no connection.” I don’t think that you can make a reasonable argu ment that somehow that affects the witness’s credibility.

Outside the jury’s presence, Woodward denied that anyone had t old him he would face prosecution. Woodward also denied that anyone had told him he would receive immunity in exchange for testifying against defendant. Woodward confirmed that the prosecutor had advised him that “[the prosecutor] did not expect you to be prosecuted, ” but “someone could change their mind later and decide to prosecu te you.” The trial court ruled , “I don’t see where it’s relevant. We’re not going to use it.”

Because no evidence substantiated that Woodward received any s pecific plea deal or promise not to charge him for his sexual contact with DD, the trial court did not abuse its discretion in characterizing the proposed inquirie s as irreleva nt to Woodward’s credibility. MRE 401 & 402; Waclawski , 286 Mich App at 670. Given the absence of evidence regarding a plea deal or promise made to Woodward, the trial court’s ruling did not violate defendant’s right to present a defense or to cross-examine Woodward.-8- V. EXCLUSION OF E XPERT TESTIMONY

Defendant next maintains that he established a sufficient basi s for Christina Delikta’s expertise in the area of sexual assault, and the trial court th erefore erred by not allowing Delikta to testify about DD’s feelings of guilt after an assault. We r eview for an abuse of discretion a trial court’s ultimate ruling to admit or exclude expert testim ony. People v Dobek , 274 Mich App 58, 93; 732 NW2d 546 (2007).

The trial court did not abuse its discretion in excluding the proposed expert testimony from Delikta, which did not quali fy for admissi bility under MRE 702, which provides :

If the court determines that sc ientific, technical, or other s pecialized knowledge will assist the trier of fact to understand the evide nce or to determine a fact in issue, a witness qualified as an expert by knowledge, s kill, experience, training, or education may testify thereto in the form of an op inion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliabl y to the facts of the case.

Delikta testified that she worked for two years as “the sexual assault crisis counselor” at the Flint YWCA. Before starting work at the YWCA, she worked f or three years at the Judson Center providing “in-home services for families,” which she des cribed as services designed to help families “make the proper adjustments for [their homes] to be a safe and healthy environment” for child ren. Delikta a dded that she had also worked as a counselor i n a residential facility for children between 8 and 14 years of age, providing therapy for behavioral and emotional issues. With respectto her educational background, Delikta testified that she had obtained a bachelor’s degree in family life education from Spri ng Arbor University, which focused on “how the family unit works together” and was “similar to a social work bachelor’s level or . . . psychology.”

The trial court would not certify Delikta as an expert witness in the area of s exual assault, stating, “I don’t have a foundation for that,” “she has no spec ialized degree, she has no specialized training,” and she “only . . . has . . . about two years of experience in a field that’s quite new to her.” Although Delikta possessed some experience as a sexual assault counselor, the parties simply did not elaborate concerning the scope of th is experience or her qualifications for the position. In light of the dearth of evidence in the re cord of Delikta’s qualification as an expert in sexual abuse, the trial court acted within its discre tion in refusing to admit her testimony.

VI. FLIGHT INSTRUCTION

Defendant next argues that no evidence supported the flight in struction that the trial court read to the jury. Defendant argues that he left the assault sc ene only to report to the police the sexual assault of DD and get medical attention and that he voluntarily surrendered to the police. The determination whether a jury instruction applies to the fac ts of a particular case lies within the sound discretion of the trial court. People v Ho , 231 Mich App 178, 189; 585 NW2d 357 (1998).-9- The trial court did not abuse its discretion in finding that t he record supported a jury instruction regarding flight. D efendant testified that immedia tely after the assault, he called his sister, called the police, and went to the police station, but found it closed. The prosecutor called as a rebuttal witness a police officer who testified that defen dant gave a statement in which he admitted to going to a different home and trying to avoid the p olice after the assault. In light of the police officer’s rebuttal te stimony that defendant avoided the police after the assault, the trial court acted within its discretion in finding that the record su pported the standard jury instruction regarding flight. See, generally, People v Goodin , 257 Mich App 425, 432; 668 NW2d 392 (2003) (explaining that the term “flight” includes such actions as fleeing the scene of the crime). “The instruction also fairly encompassed a theory of the case,” specifically “the prosecutor’s theor[y] . . . that [defendant’s ] decision to [avoid the police ] showed his consciousness of guilt.” Armstrong , 305 Mich App at 240.

VII. CUMULATIVE ERROR

Defendant lastly argues that the existence of the many trial c ourt errors combined to deprive him of a fair trial. When a defendant sets forth a cla im that cumulative errors deprived him of a fair trial, “[r]eversal is warranted only if the effec t of the errors was so seriously prejudicial that the defendant was denied a fair trial.” People v Werner , 254 Mich App 528, 544; 659 NW2d 688 (2002). The “cumulative effect of several errors can constitute sufficient prejudice to warrant reversal where the prejudice of any one error would not.” People v LeBlanc , 465 Mich 575, 591; 640 NW2d 246 (2002). In attempting to asc ertain the impact of “cumulative error,” an appellate court may consider only actual errors. Id . at 591 n 12. We conclude that because no actual errors marred defendant’s trial , no cumulative prejudicial effect exists that deprived him of a fair trial.

Affirmed.

/s/ Christopher M. Murray /s/ Patrick M. Meter /s/ Donald S. Owens