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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UNPUBLISHED 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: RIORDAN, P.J., and JANSEN and FORT HOOD, JJ. 

PER CURIAM. 

 Defendant appeals as of right his jury trial convictions of three counts of assault with 

intent to commit murder, MCL 750.83, three counts of assault with 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 sentenced defendant to 14 to 25 years’ 

imprisonment for each assault with intent to commit murder conviction, and 1 to 4 years’ 

imprisonment for each felonious assault conviction, to be served concurrently with each other 

but consecutive to a sentence of two years’ imprisonment for the felony-firearm conviction. We 

affirm. 

I. FACTUAL BACKGROUND 

 This case arises from a nonfatal shooting that occurred on July 10, 2012, in Detroit, 

Michigan. That afternoon, complainants 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 Alexis, which had resulted in a physical altercation two weeks earlier. 

 When the Bohanens initially drove past Alexis’s and Harris’s home, Harris, Alexis, 

Tanisha Woodward (Alexis’s and Harris’s mother), their cousin Sonovia, and two other women 
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(collectively, “the Woodwards”) were outside. 1 The Woodwards threw canned food, sticks, and 

rocks at the Bohanens’ vehicle. 

 The Bohanens parked their car two blocks away from the Woodwards’ house, and most 

of the group started walking toward the Woodwards, who were still 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 defendant (Harris’s boyfriend) emerge 

from behind a red car, which was parked on the side of the Woodward home, with a rifle. The 

Bohanens ran, and defendant fired multiple shots toward them, striking Onjdua in the back of the 

leg. 

 All three complainants identified defendant as the gunman in photographic lineups and at 

trial. Harris, however, testified that the shooter was her brother, James Bosely, not defendant. 

The prosecution impeached Harris with prior inconsistent testimony that she gave during an 

earlier juvenile court proceeding concerning charges that Alexis was facing for her involvement 

with the shooting. During the juvenile proceedings, Harris claimed that she did not see the 

shooter and did not know who he was. 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 all testified pursuant to investigative subpoenas, during which they 

identified James as the shooter. Based on this testimony, defendant filed a motion to remand in 

this Court, indicating that he would file a motion for a new trial on the basis of newly discovered 

evidence in the lower court if this Court granted his motion, which we did.2

 On remand, defendant filed a motion for a new trial. The trial court held a hearing on 

defendant’s motion, during which it heard testimony from Woodward and Alexis. Both 

witnesses provided inconsistent or contradictory testimony, and the prosecutor impeached 

numerous portions of their testimony with previous statements from Alexis’s juvenile proceeding 

and the investigative subpoenas. 

 Ultimately, the trial court denied defendant’s motion for a new trial. The court concluded 

that defendant had failed to establish the four elements necessary 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 inconsistencies 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 credibly 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, the entire group will be referred to 

as “the Woodwards.” 

2 People v McHenry, unpublished order of the Court of Appeals, entered May 27, 2015 (Docket 

No. 318852). 
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inconsistent. When they were questioned by [defendant’s appellate counsel,] they had responses. 

When they were questioned by the prosecutor, they had memory problems.” Accordingly, it 

determined that the testimony would not have made any difference upon retrial. 

II. SUFFICIENCY OF THE EVIDENCE 

 Defendant contends that the prosecution 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 convictions, 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 NW2d 757 (2010). We review the evidence in the light most 

favorable to the prosecution and determine whether a rational jury could have found that the 

essential elements of the crime were proven beyond a reasonable doubt. Id. at 175. 

“Circumstantial evidence and reasonable inferences that arise from 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 regarding the weight of 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 offense.” People v Yost, 278 

Mich App 341, 356; 749 NW2d 753 (2008). Identity may be established 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 NW2d 381 (2000). Further, 

“credibility of identification testimony is a question for the trier of fact that we do not resolve 

anew.” Id. 

 Onjdua identified defendant as the gunman hours after the shooting while she was still in 

the hospital. Although she could not make out the man’s face when he initially emerged from 

behind the red car, she had an opportunity to 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 went 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 defendant called her 45 minutes to an 

hour after the shooting to deny involvement. The jury could reasonably infer from this phone 

call that defendant had some connection with—or, at the very least, knowledge of—the shooting. 

See Williams, 268 Mich App at 419. Debbie, who had seen defendant in person once before, 

also testified that he was the shooter and that James was not at the scene. Further, all three 

witnesses identified defendant in separate photographic lineups. 
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 Defendant asserts that the evidence did not prove beyond a reasonable doubt that he was 

the shooter because the witnesses’ testimony was neither credible nor reliable. He emphasizes 

that Onjdua initially told police that she believed that James could be the shooter, that Alyssa and 

Debbie gave conflicting testimony regarding defendant’s clothing, and that Harris, who testified 

that James was the shooter, was the most reliable witness. However, Onjdua explained that she 

was distracted by her injuries when she first spoke to the police. Further, these inconsistencies 

are relevant to the finder of fact’s assessment of the weight and credibility of the identification 

testimony, and we will not reassess that determination on appeal. Davis, 241 Mich App at 700; 

see also Unger, 278 Mich App at 222. Likewise, the jury could reasonably credit the 

complainants’ testimony over Harris’s claim that her brother was 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 whole or in part, any of the evidence 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 conclude 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 disagree. 

A. STANDARD OF REVIEW 

 To preserve a claim of constitutional error in sentencing, a defendant 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 did not object on the ground that 

his sentences amounted to cruel and/or unusual punishment. Thus, this issue is unpreserved and 

reviewed for plain error affecting defendant’s substantial rights. People v Carines, 460 Mich 

750, 764-765; 597 NW2d 130 (1999). To demonstrate such an error, 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 showing 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 resulted in the conviction of an actually innocent defendant or when an 

error seriously affect[ed] the fairness, integrity or public reputation 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 punishments,” and the 

Michigan Constitution forbids “cruel or unusual punishment.” US Const, Am VIII; Const 1963, 

art 1, § 16. Michigan’s prohibition against cruel or unusual punishment is interpreted more 
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broadly than the federal prohibition. People v Bullock, 440 Mich 15, 30-35; 485 NW2d 866 

(1992). Accordingly, if a sentence is constitutional under Michigan’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 cruel or unusual, this Court looks to the gravity of the 

offense and the harshness of the penalty, comparing the punishment 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. 322280); 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 rehabilitation in determining whether a 

punishment is cruel or unusual). Defendant has not demonstrated, or even argued, “that his 

sentences are cruel or unusual by comparing them to the penalties 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 may not merely announce his position and leave it to this 

Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment 

with little or no citation of supporting authority.” [Quotation marks and citation omitted.]). 

Moreover, a sentence within the range calculated under the sentencing guidelines is 

presumed to be proportionate, and a proportionate sentence is not cruel or unusual punishment. 

People v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008).3

 To overcome this 

presumption, a defendant “must present unusual circumstances that would render the 

presumptively proportionate sentence 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 “questionable 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 relationships, and his employment 

history. None of these factors constitute “unusual circumstances” sufficient to overcome the 

presumption of proportionality or demonstrate that his sentences are cruel or unusual. See 

People v Lemons, 454 Mich 234, 258-259; 562 NW2d 447 (1997) (“find[ing] no principled 

reason to require that a judge treat similar offenses that are committed by similarly depraved 

 

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 “[U]nder the Michigan Constitution, the prohibition against cruel or unusual punishment 

included a prohibition on grossly disproportionate sentences. But . . . ‘the constitutional concept 

of “proportionality” under Const 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 share 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 No. 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)). 
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persons differently solely on the basis of the age of the defendant 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 sufficient, . . . the remedy would be to 

vacate [the defendant’s] conviction[,]” not to remand for resentencing); People v Daniel, 207 

Mich App 47, 54; 523 NW2d 830 (1994) (stating that the defendant’s employment and lack of 

criminal history “are not unusual circumstances that would overcome” the presumption of 

proportionality). 

Therefore, defendant has not demonstrated a plain error affecting his substantial rights, as 

he has failed to overcome the presumption of proportionality or establish that his sentences 

constitute cruel or unusual punishment under the circumstances.4

 

IV. MOTION FOR A NEW TRIAL 

 In a supplemental brief, defendant contends that the trial court clearly erred when it found 

on remand that (1) the testimony of Tanisha Woodward and Alexis was not newly discovered 

evidence, (2) their testimony was cumulative, and (3) their testimony would not have affected the 

result of defendant’s trial. As such, defendant argues that the court abused its discretion in 

denying his motion for a new trial. We disagree. 

A. STANDARD OF REVIEW 

 We review for an abuse of discretion 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 discretion 

occurs when the trial court’s decision is outside the range of principled outcomes.” Id. at 559. 

We review a trial court’s factual 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) (quotation marks and citation omitted). 

B. APPLICABLE LAW 

 

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 To the extent that defendant suggests that his sentences for assault 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 length of consecutive sentences is not 

considered when determining whether individual sentences are proportionate. 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 murder 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 the 

mandatory two-year minimum term of imprisonment for felony-firearm does not constitute cruel 

or unusual punishment). 
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 “Historically, Michigan courts have been reluctant to grant new 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 there 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 evidence 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 obligation of the parties to undertake 

all reasonable efforts to marshal all the 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 discovered 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 different result probable on retrial.” 

People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003) (quotation marks and citation 

omitted); see also Terrell, 289 Mich App at 559. The defendant bears the burden of satisfying 

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, that Woodward’s and Alexis’s 

testimony constituted newly discovered evidence,5

 it is apparent that defendant did not establish 

 

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 It is clear that Harris’s testimony was not newly discovered evidence, as she testified at 

defendant’s trial, and appellate counsel stipulated that any testimony that she would have 

provided at a postconviction hearing would have been virtually identical to her trial testimony. 

 Additionally, it is noteworthy that “Michigan caselaw makes clear 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 the evidence is newly discovered, 

even if the evidence is claimed to have been ‘unavailable’ at the time of trial.” Id. at 282. 

Likewise, this Court has recognized a distinction between “newly discovered” and “newly 

available evidence,” warning that courts “must exercise great caution in considering evidence to 

be ‘newly discovered’ when it existed all along and was unavail[a]ble only because a codefendant . . . had availed himself of his privilege not to testify.” Terrell, 289 Mich App at 567 

(quotation marks and citation omitted, alteration in original). 

Without fully analyzing this prong of the test, we find it important to note that Woodward 

initially was subpoenaed as a defense witness at defendant’s trial, 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 perjury 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, defendant explained in his motion for 
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that the evidence was not cumulative or that it is probable that 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 Alexis said “let that b---- go,” ran back to Woodward’s house, 

left the gun inside, and ran down the street to a cousin’s house. Except for some minor 

differences, this testimony was virtually identical to that offered by Woodward and Alexis at the 

evidentiary hearing. We are unconvinced by defendant’s argument that Woodward’s testimony 

was not cumulative because Woodward had a different relationship with defendant and James 

than Harris, or because Woodward’s motivation for testifying differed from Harris’s motive. 

Likewise, defendant has not provided 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 differ from those of a previous witness. See Payne, 285 Mich App at 

195. Thus, defendant failed to establish the second element of the Cress test. Cress, 468 Mich at 

692. 

 Furthermore, regarding the fourth 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 their previous sworn testimony. 

Both admitted to lying under oath, for various reasons, when they 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 testified regarding a written statement 

that she allegedly gave to police officers at her house on February 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 appellate counsel acknowledged at the hearing on defendant’s motion 

that he “will be the first to tell this Court and acknowledge that [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 testify at defendant’s trial, and was not called as a defense witness, 

because she was facing prosecution in juvenile court for charges related to the July 10, 2012 

incident, not because defendant was unaware of her potential testimony. 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. 

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 Additionally, we note that the testimony of both women—which indicated that defendant was 

not involved in the incident at all—was undermined by the handwritten letter that defendant sent 

to the court following his conviction, in which he described the confrontation, identified James 

as the shooter, said that he had heard Alexis tell James to shoot, and recalled hearing James fire 

four or five shots. 

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 Counsel ultimately argued that the trial court should consider Alexis’s testimony to the extent 

that it was corroborated by Woodward’s testimony. 
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 In sum, we are not definitely and firmly convinced that the trial court made a mistake in 

finding that a jury would fail to credit Woodard’s and Alexis’s dubious and impeached testimony 

upon retrial. Reese, 491 Mich at 139. Thus, the trial court’s denial of defendant’s motion for a 

new trial did not fall outside the range of principled outcomes. Terrell, 289 Mich App at 558. 

V. CONCLUSION 

 Defendant has failed to establish that his convictions were supported by insufficient 

evidence, or that the sentences imposed for his assault with intent to commit murder convictions 

constituted cruel or unusual punishment. In addition, the trial court did not abuse its discretion 

when it denied defendant’s motion for a new trial because defendant failed to establish the four 

elements of the Cress test. 

 Affirmed. 

/s/ Michael J. Riordan 

/s/ Kathleen Jansen 

/s/ Karen M. Fort Hood