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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 26, 2016

v No. 318852 Wayne Circuit Court MARWIN TERRELLE MCHENRY, LC No. 13-004171-FC

Defendant-Appellant.

Before: R IORDAN , P.J., and J ANSEN and F ORT H OOD , JJ.

P ER C URIAM

. Defendant appeals as of right hi s jury trial convictions of th ree counts of assault with intent to commit murder, MCL 750.83, three counts of assault wi th a dangerous weapon (“felonious assault”), MCL 750.82, and possession of a firearm during the commission of a felony (“felony-firearm”), MCL 750.227b. The trial court sente nced defendant to 14 to 25 years’ imprisonment for each assault with intent to commit murder conv iction, and 1 to 4 years’ imprisonment for each felonious assault conviction, to be serve d concurrently with each other but consecutive to a sentence of two years’ imprisonment for th e felony-firearm conviction. We affirm.

I. FACTUAL BACKGROUND

This case arises from a nonfatal shooting that occurred on Jul y 10, 2012, in Detroit, Michigan. That afternoon, compla inants Onjdua Bohanen, Alyssa Bohanen, and Debbie Bohanen drove to Tanisha Harris’s house with three other women (collectively, “the Bohanens”) to fight Harris and her sister, Alexis Woodward. The Bohanens were engaged in an ongoing dispute with Harris and Alex is, which had resulted in a physica l altercation two weeks earlier.

When the Bohanens initially dro ve past Alexis’s and Harris’s h ome, Harris, Alexis, Tanisha Woodward (Alexis’s and Harris’s mother), their cousin S onovia, and two other women-2- (collectively, “the Woodwards”) were outside. 1 The Woodwards threw canned food, sticks, and rocks at the Bohanens’ vehicle.

The Bohanens parked their car t wo blocks away from the Woodwar ds’ house, and most of the group started walking toward the Woodwards, who were sti ll outside their home. The Woodwards also began walking toward the Bohanens. When the two groups were within close proximity of each other, Onjdua, Alyssa, and Debbie saw defenda nt (Harris’s boyfriend) emerge from behind a red car, which was parked on the side of the Wood ward home, with a rifle. The Bohanens ran, and defendant fired multiple shots toward them, s triking Onjdua in the back of the leg.

All three complainants identif ied defendant as the gunman in p hotographic lineups and at trial. Harris, however, testified that the shooter was her bro ther, James Bosely, not defendant. The prosecution impeached Harris with prior inconsistent testim ony that she gave during an earlier juvenile court proceeding concerning charges that Alexi s was facing for her involvement with the shooting. During the juvenile proceedings, Harris cla imed that she did not see the shooter and did not know who he wa s. At defendant’s trial, Harris admitted she lied in the juvenile proceeding to protect James.

Following defendant’s convictions, the Wayne County Prosecutor ’s Office received new information regarding the case and initiated an investigation. During that investigation, Harris, Woodward, and Alexis a ll testified pursuant to investigative su bpoenas, during which they identified James as the shooter. Based on this testimony, defe ndant filed a motion to remand in this Court, indicating that he would file a motion for a new tr ial on the basis of newly discovered evidence in the lower court if this Court granted his motion, w hich we did. 2

On remand, defendant filed a motion for a new trial. The tria l court held a hearing on defendant’s motion, during which it heard testimony from Woodwa rd and Alexis. Both witnesses provided inconsistent or contradictory testimony, and the prosecutor impeached numerous portions of their tes timony with previous statements f rom Alexis’s juvenile proceeding and the investigativ e subpoenas.

Ultimately, the trial court deni ed defendant’s motion for a ne w trial. The court concluded that defendant had failed to establish the four elements necess ary to warrant a new trial, finding that the testimony was not newly discovered and was cumulative to Harris’s previous testimony. Additionally, it highlighted specific examples of the inconsist encies in Woodward’s and Alexis’s testimony and the various statements with which the prosecutor had impeached them. Given these discrepancies, it “found [Woodward and Alexis] to be cred ibly not credible. They were

1 In the interest of clarity, Tanisha Harris will be referred to as “Harris” and Tanisha Woodward will be referred to as “Woodward” in this opinion. However, th e entire group will be referred to as “the Woodwards.”

2 People v McHenry , unpublished order of the Court of Appeals, entered May 27, 20 15 (Docket No. 318852).-3- inconsistent. When they were que stioned by [defendant’s appell ate counsel,] the y had responses. When they were questioned by the prosecutor, they had memory pr oblems.” Accordingly, it determined that the testimony w ould not have made any differenc e upon retrial.

II. SUFFICIENCY OF THE EVIDENCE

Defendant contends that the pros ecution presented insufficient evidence to support his convictions for assault with intent to commit murder, felonious assault, and felony-firearm. However, he only contests the identity element of his convictio ns, arguing that the prosecution failed to prove his identity as the gunman beyond a reasonable doubt. We disagree.

A. STANDARD OF REVIEW

We review a challenge to the sufficiency of the evidence de novo

. People v Harverson
, 291 Mich App 171, 175-177; 804 NW 2d 757 (2010). We review the evidence in the light most favorable to the prosecution and determine whether a rational j ury could have found that the essential elements of the crime were proven beyond a reasonable doubt. Id . at 175. “Circumstantial evidence and reas onable inferences that arise f rom such evidence can constitute satisfactory proof of the elements of the crime.” People v Williams , 268 Mich App 416, 419; 707 NW2d 624 (2005). We resolve all conflicts in the evidence in favor of the prosecution and will not interfere with the trier of fact’s “determinations reg arding the weight o f evidence and the credibility of the witnesses.” People v Unger , 278 Mich App 210, 222; 749 NW2d 272 (2008).

B. ANALYSIS

“[I]t is well settled that identity is an element of every off ense.” People v Yost , 278 Mich App 341, 356; 749 NW2d 753 (2008). Identity may be establ ished by either direct testimony or circumstantial evidence. People v Kern , 6 Mich App 406, 409-410; 149 NW2d 216 (1967). Likewise, “positive identification by witnesses may be sufficient to support a conviction of a crime.” People v Davis , 241 Mich App 697, 700; 617 NW 2d 381 (2000). Further, “credibility of identification te stimony is a question for the trier of fact that we do not resolve anew.” Id

. Onjdua identified defendant as the gunman hours after the shoo ting while she was still in the hospital. Although she could not make out the man’s face w hen he initially emerged from behind the red car, sh e had an opportunity t o view the shooter when he approached the group and aimed his weapon at the Bohanens before she ran from the scene. Onjdua knew defendant was Harris’s boyfriend and that he we nt by the name “Mo.” She had previously seen defendant in person on another occasion and had seen his picture on Facebook . Alyssa, who had known defendant for more than 10 years, also identified him as the man who came out from behind the red car and shot at the group. She further testified that defe ndant called her 45 minutes to an hour after the shooting to deny involvement. The jury could re asonably infer from this phone call that defendant had some conn ection with—or, a t the very le ast, knowledge of—the shooting. See Williams , 268 Mich App at 419. Debbie, who had seen defendant in perso n once before, also testified that he was the shooter and that James was not a t the scene. Further, all three witnesses identified defendant i n separate photog raphic lineups

.-4- Defendant asserts that the evidence did not prove beyond a rea sonable doubt that he was the shooter because the witnesses’ testimony was neither credib le nor reliable. He emphasizes that Onjdua initially told poli ce that she believed that James could be the shooter , that Alyssa and Debbie gave conflicting testimony regarding defendant’s clothin g, and that Harris, who testified that James was the shooter, was the most reliable witness. How ever, Onjdua explained that she was distracted by her injuries w hen she first spoke to the poli ce. Further, these inconsistencies are relevant to the finder of fact’s assessment of the weight a nd credibility of the identification testimony, and we will not reassess that determination on appea l. Davis , 241 Mich App at 700; see also Unger , 278 Mich App at 222. Likewise, t he jury could reasonably cre dit the complainants’ testimony over Harris’s claim that her brother wa s the gunman, especially given Harris’s admission that she provided false testimony about the identity of the shooter during a prior proceeding. See People v Perry , 460 Mich 55, 63; 594 NW2d 477 (1999) (“[A] jury is free to believe or disbelieve, in w hole or in part, any of the evide nce presented.”)

Viewing the complainants’ identification testimony in the light most favorable to the prosecution, Harverson , 291 Mich App at 175-176, and resolving all conflicts in favor of the prosecution, Unger , 278 Mich App at 222, a reasonable trier of fact could conclud e that defendant was the gunman. Thus, we reject defendant’s argument that his convictions were supported by insufficient evidence.

III. CRUEL OR UNUSUAL PUNISHMENT

Defendant next argues that the sentences for his assault with intent to commit murder convictions constitute cruel or unusual punishment. We disagre e.

A. STANDARD OF REVIEW

To preserve a claim of constitu tional error in sentencing, a d efendant must object in the trial court. People v McLaughlin , 258 Mich App 635, 669-670; 672 NW2d 860 (2003). Although defendant maintained his innocence at sentencing, he d id not object on the ground that his sentences amounted to cruel and/or unusual punishment. Thu s, this issue is unpreserved and reviewed for plain error affecting defendant’s substantial righ ts. People v Carines , 460 Mich 750, 764-765; 597 NW2d 130 (1999). To demonstrate such an erro r, a defendant must show that (1) an error occurred, (2) the error was clear or obvious, and (3) “the plain error affected [the defendant’s] substantial rights,” which “generally requires a s howing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Id . at 763. Even if a defendant establishes a plain error that affected his substantial rights, “[r]eversal is warranted only when the plain, forfeited error resu lted in the conviction of an act ually innocent defendant or when an error seriously affect[ed] the f airness, integrity or public re putation of judicial proceedings independent of the defendant’s innocence.” Id . at 763-764 (quotation marks and citation omitted; second alteration in original).

B. ANALYSIS

The United States Constitution prohibits “cruel and unusual pu nishments,” and the Michigan Constitution forbids “cruel or unusual punishment.” U S Const, Am VIII; Const 1963, art 1, § 16. Michigan’s prohibitio n against cruel or unusual p unishment is interpreted more-5- broadly than the federal prohibition. People v Bullock , 440 Mich 15, 30-35; 485 NW2d 866 (1992). Accordingly, if a sentence is constitutional under Mic higan’s Constitution, it is also constitutional under the federal Constitution. People v Nunez , 242 Mich App 610, 618 n 2; 619 NW2d 550 (2000).

“In deciding if punishment is cr uel or unusual, this Court look s to the gravity of the offense and the harshness of the penalty, comparing the punishm ent to the penalty imposed for other crimes in this state, as well as the penalty imposed for the same crime in other states.” People v Masroor , ___ Mich App at ___, ___; ___ NW2d ___ (2015) (Docket No. 322 280); slip op at 23; see also People v Dipiazza , 286 Mich App 137, 153-154; 778 NW2d 264 (2009) (also noting that this Court will consider the goal of rehabilitationin determining whether a punishment is cruel or unusual). Defendant has not demonstrate d, or even argued, “that his sentences are cruel or unusual by comparing them to the penalti es imposed for other crimes in this state and the same crime in other states,” id . at ___; slip op at 23, and we are not required to search for support for a defendant’s arguments, People v Payne , 285 Mich App 181, 195; 774 NW2d 714 (2009) (“An appellant m ay not merely announce his posi tion and leave it to this Court to discover a nd rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of s upporting authority.” [Quotatio n marks and citation omitted.]).

Moreover, a sentence within the range calculated under the sent encing guidelines is presumed to be proportionate, and a proportionate sentence is n ot cruel or unusual punishment. People v Powell , 278 Mich App 318, 323; 750 NW2d 607 (2008). 3 To overcome this presumption, a defendant “must pr esent unusual circumstances th at would render the presumptively proportionate sen tence disproportionate.” People v Lee , 243 Mich App 163, 187; 622 NW2d 71 (2000).

Defendant only argues on appeal that his sentences, which were well within the guidelines, are cruel or unusual given his age, the “questionab le reliability” of his convictions (based on his arguments supra regarding the sufficiency of the evidence presented at trial), his lack of a significant criminal history, his positive family rel ationships, and his employment history. None of these factors constitute “unusual circumstanc es” sufficient to overcome the presumption of proportionality or demonstrate that his sentence s are cruel or unusual. See People v Lemons , 454 Mich 234, 258-259; 562 NW2d 447 (1997) (“find[ing] no pri ncipled
reason to require that a judge treat similar offenses that are committed by simi larly depraved

3 “[U]nder the Michigan Constitution, the prohibition against c ruel or unusual punishment included a prohibition on grossly disproportionate sentences. But . . . ‘the constitutional concept of “proportionality” under Cons t 1963, art 1, § 16 is distinct from the nonconstitutional “principle of proportionality” discussed in People v Milbourn , 435 Mich 630, 650; 461 NW2d 1 (1990), although the concepts s hare common roots.’ ” People v Benton , 294 Mich App 191, 204; 817 NW2d 599 (2011) (citation omitted). See also People v Steanhouse , ___ Mich App ___, ___; ___ NW2d ___ (2015) (Docket N o. 318329); slip op at 23-25 (discussing the Milbourn principle of proportionality and adopting that standard as the method for reviewing the reasonableness of a sentence under People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015)).-6- persons differently solely on the basis of the age of the defen dant at sentencing where the Legislature has authorized the judge to impose life or any term of years.”); Powell , 278 Mich App at 323 (noting that “[i]f the evidence was not legally suff icient, . . . the remedy would be to vacate [the defendant’s] convict ion[,]” not to remand for resen tencing); People v Daniel , 207 Mich App 47, 54; 523 NW2d 830 (1994) (stating that the defendan t’s employment and lack of criminal history “are not unusual circumstances that would over come” the presumption of proportionality).

Therefore, defendant has not dem onstrated a plain error affecti ng his substantial rights, as he has failed to overcome the presumption of proportionality or establish that his sentences constitute cruel or unusual punish ment under the circumstances. 4

IV. MOTION FOR A NEW TRIAL

In a supplemental brief, defenda nt contends that the trial cou rt clearly erredwhen it found on remand that (1) the testimony of Tanisha Woodward and Alexis was not newly discovered evidence, (2) their testimony was c umulative, and (3) their tes timony would not have affected the result of defendant’s trial. As such, defendant argues that th e court abused its discretion in denying his motion for a new trial. We disagree.

A. STANDARD OF REVIEW

We review for an abuse of discr etion a trial court’s decision on a motion for a new trial. People v Terrell , 289 Mich App 553, 558; 797 NW2d 684 (2010). “An abuse of dis cretion occurs when the trial court’s decision is outside the range of principled outcomes.” Id . at 559. We review a trial court’s fact ual findings for clear error, but review de novo underlying questions of law. Id ., citing MCR 2.613(C). A finding “is clearly erroneous if the reviewing court is left with a definite and firm conviction that the trial court made a mistake.” People v Reese , 491 Mich 127, 139; 815 NW2d 85 (2012) (quota tion marks and citation omitted).

B. APPLICABLE LAW

4 To the extent that defendant suggests that his sentences for a ssault with intent to commit murder are cruel and/or unusual when considered in combination with his consecutive two-year sentence for felony-firearm, we disagree. The cumulative lengt h of consecutive sentences is not considered when determining whether individual sentences are pr oportionate. Rather, each sentence is examined individually. People v Miles , 454 Mich 90, 95; 559 NW2d 299 (1997). As explained supra , defendant’s sentences for assault with intent to commit murde r are proportionate. Further, defendant’s two-year sentence for his felony-firearm conviction does not constitute cruel or unusual punishment. See Wayne County Prosecutor v Recorder’s Court Judge (People v Meeks) , 92 Mich App 433, 438-441; 285 NW2d 318 (1979) (holding that t he mandatory two-year minimum term of imprisonment for felony-fire arm does not constitute cruel or unusual punishment).-7- “Historically, Michigan courts have been reluctant to grant ne w trials on the basis of newly discovered evidence,” People v Grissom , 492 Mich 296, 312; 821 NW2d 50 (2012), and “the cases where [the Michigan Supreme Court] has held that the re was an abuse of discretion in denying a motion based on such grounds are few and far between, ” People v Rao , 491 Mich 271, 280; 815 NW2d 105 (2012). This reluctance to grant new trials on the basis of newly discovered evidence stems from the parties’ legal obligation to “secure ev idence and prepare for trial with the full understanding that, absent unusual circumstances, the trial will be the one and only opportunity to present their case.” Id . Likewise, “[i]t is the oblig ation of the parties to undertak e all reasonable efforts to marshal allthe relevant evidence for that trial,” as “[e]vidence will not normally be allowed in installments.” Id

. However, a new trial is warranted if the defendant shows that “(1) the evidence itself, not merely its materiality, was newly discovered; (2) the newly dis covered evidence was not cumulative; (3) the party could not, using reasonable diligence , have discovered and produced the evidence at trial; and (4) the new evidence makes a differe nt result probable on retrial.” People v Cress , 468 Mich 678, 692; 664 NW2d 174 (2003) (quotation marks and c itation omitted); see also Terrell , 289 Mich App at 559. The defendant bears the burden of satis fying each part of the test. Rao , 491 Mich at 279.

C. APPLICATION

Here, the trial court did not abuse its discretion in denying defendant’s motion for a new trial. Even if we assume, solely for the sake of argument, tha t Woodward’s and Alexis’s testimony constituted newly discovered evidence, 5 it is apparent that defendant did not establish

5 It is clear that Harris’s tes timony was not newly discovered e vidence, as she testified at defendant’s trial, and appellat e counsel stipulated that any te stimony that she would have provided at a postconviction hear ing would have been virtually identical to her trial testimony. Additionally, it is noteworthy that “Michigan caselaw makes cl ear that evidence is not newly discovered if the defendant or defense counsel was aware of the evidence at the time of trial.” Rao , 491 Mich at 281. “Further, Michigan courts have held that a defendant’s awareness of the evidence at the time of trial precludes a finding that t he evidence is newly discovered, even if the evidence is claimed to have been ‘unavailable’ at t he time of trial.” Id . at 282. Likewise, this Court has recognize d a distinction between “newl y discovered” and “newly available evidence,” warning that courts “must exercise great c aution in considering evidence to be ‘newly discovered’ when it e xisted all along and was unavail [a]ble only because a codefendant . . . had availed himself of his privilege not to te stify.” Terrell , 289 Mich App at 567 (quotation marks and citation omitted, alteration in original). Without fully analyzing this pr ong of the test, we find it impo rtant to note that Woodward initially was subpoenaed as a defense witness at defendant’s tr ial, but defense counsel ultimately decided not to call her as a witness after Woodward’s attorney informed the court that she would invoke her Fifth Amendment right to remain silent due to perjur y concerns and the fact that she was still awaiting sentencing before the same trial court judge on a nolo contendere plea to one or more charges arising from the same incident. Similarly, def endant explained in his motion for-8- that the evidence was not cumulative or that it is probable tha t the evidence would have affected the result of his trial. Cress , 468 Mich at 692.

At trial, Harris testified that James arrived at the scene of the confrontation, shot at the Bohanens with a long gun after Al exis said “let that b---- go,” ran back to Woodward’s house, left the gun inside, and ran dow n the street to a cousin’s hous e. Except for some minor differences, this testimony was virtually identical to that off ered by Woodward and Alexis at the evidentiary hearing. We are unconvinced by defendant’s argumen t that Woodward’s testimony was not cumulative because Woodwa rd had a different relationshi p with defendant and James than Harris, or because Woodward’s motivation for testifying di ffered from Harris’s motive. Likewise, defendant has not provi ded any authority in the trial court or on appeal for the proposition that a witness’s testimony is not cumulative if the witness’s relationships or motivations for testifying diffe r from those of a previous witn ess. See Payne , 285 Mich App at 195. Thus, defendant failed to es tablish the second element of the Cress test. Cress , 468 Mich at 692.

Furthermore, regarding the four th element, the trial court did not clearly err in concluding that Woodward’s and Alexis’s testimony did not make a different result probable on retrial. Cress , 468 Mich at 692. As the trial court noted, the testimony of both witnesses was inconsistent and unconvincing, and it repeatedly contradicted t heir previous sworn testimony. Both admitted to lying under oath, for various reasons, when th ey found it necessary or expedient. Woodward and Alexis also contradicted each other at the hearing, particularly on the issue of whether Woodward was present for the shooting. 6 In addition, Alexis initially lied during the July 23, 2015 postconviction hearing when she testif ied regarding a written statement that she allegedly gave to police officers at her house on Febr uary 15, 2014. She later admitted on cross-examination that she had written the statement herself , had it notarized at a bank, and then gave it to Harris, believing that Harris would give it to the police. Given these credibility issues, even defendant’s appella te counsel acknowledged at the hearing on defendant’s motion that he “will be the first to tell this Court and acknowledge t hat [Alexis] was not a good witness for the defense. She was not helpful in the least bit.” 7

a new trial that Alexis did not t estify at defendant’s trial, a nd was not called as a defense witness, because she was facing prosecution in juvenile court for charge s related to the July 10, 2012 incident, not because defendantwas unaware of her potential te stimony. Therefore, it is apparent that defendant was, at a minimum, aware of Woodward’s and Alexis’s potential testimony at the time of his trial. See Rao , 491 Mich at 281.

6 Additionally, we note that the t estimony of both women—which i ndicated that defendant was not involved in the incident at all—was undermined by the handw ritten letter that defendant sent to the court following his conviction, in which he described th e confrontation, identified James as the shooter, said that he had h eard Alexis tell James to sho ot, and recalled hearing James fire four or five shots.

7 Counsel ultimately argued that the trial court should consider Alexis’s testimony to the extent that it was corroborated by Woodward’s testimony.-9- In sum, we are not definitely and firmly convinced that the tr ial court made a mistake in finding that a jury w ould fail to credit W oodard’s and Alexis’s dubious and impeached testimony upon retrial. Reese , 491 Mich at 139. Thus, the tr ial court’s denial of defendant ’s motion for a new trial did not fall outside t he range of principled outcomes

. Terrell , 289 Mich App at 558.

V. CONCLUSION

Defendant has failed to establish that his convictions were su pported by insufficient evidence, or that the sentences imposed for his assault with in tent to commit murder convictions constituted cruel or unusual punishment. In addition, the tria l court did not abuse its discretion when it denied defendant’s motion for a new trial because defen dant failed to establish the four elements of the Cress test.

Affirmed.

/s/ Michael J. Riordan /s/ Kathleen Jansen /s/ Karen M. Fort Hood