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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

April 21, 2015 

v No. 319667 

Ingham Circuit Court 

NOE DAMACIO ARCAUTE, LC No. 13-000299-FC 

 Defendant-Appellant. 

Before: OWENS, P.J., and JANSEN and MURRAY, JJ. 

PER CURIAM. 

 Defendant appeals as of right his convictions, following a jury trial, of second-degree 

murder, MCL 750.317, carrying a concealed weapon (CCW), MCL 750.227 and possession of a 

firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court 

sentenced defendant to 225 to 720 months’ imprisonment for the second-degree murder 

conviction, a concurrent term of 18 to 60 months for the CCW conviction, and 24 months for the 

felony-firearm conviction, consecutive to his second-degree murder conviction. We affirm. 

I. BACKGROUND 

 This case stems from an altercation at the “Save On Market” convenience store on New 

Year’s Day, during which several men were shot, including Nicholas Jones who was mortally 

wounded. Three groups of men were involved, each of which entered the store around 2:00 a.m. 

The first group to arrive intended to buy liquor after leaving a house party. Soon after the second 

group arrived, Keith Houston, a member of the second group, had a discussion with Delvanta 

Mitchell, a member of the first group. Keith Houston testified that while holding a gun, he told 

Mitchell that he did not like one of Mitchell’s acquaintances and that he was going to shoot the 

acquaintance when and where he found him. Mitchell denied that Keith Houston showed him a 

gun or threatened to kill his friend. Group three, which included defendant and codefendant 

Delon Miller, entered the store last. Charles Mattox, a member of group one, testified that he 

and defendant exchanged dirty looks after which defendant said that he “had a Magic Johnson 

for anybody,” which Mattox understood to mean that defendant was armed with a gun and clip 

holding 32 bullets. 

 Soon thereafter, a fight broke out. One of the combatants, Alim Muhammad, testified 

that while he was being hit by multiple people, he pulled out a knife and started “stabbing air” 

with his eyes “basically closed.” Keith Houston testified that he was standing near the door 
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when the fight began, with his back to the fight. He said he turned around when he heard a 

commotion and took a couple steps closer to watch. As he was approaching the fight, Keith 

Houston testified, he saw Miller “come back shooting” after “[a] couple, like seconds.” Keith 

Houston said he was shot while trying to run away. 

 Jerome Houston testified that he was standing by the cash register when the fight broke 

out, and “then all of a sudden a gun came up” and he heard shots fired. Jerome Houston said 

Miller shot first, aiming at Tyrazes Brown and Shawon Calvin, and fired two shots before Brown 

pulled out a gun and returned fire. Jerome Houston estimated that Miller and Brown each fired a 

total of five or six rounds while inside the store. Jerome Houston said Miller approached him, 

pointed his weapon at him and pulled the trigger, but that defendant’s gun “didn’t go off 

anymore.” Jerome said defendant then bent over near the victim, who was shot and lying on the 

ground, and said, “they shouldn’t have jumped on me” and “sorry.” Jerome Houston said he 

then went back to his car while defendant and another man exchanged fire by their respective 

vehicles. Medical evidence established that the victim was shot on the left side of his chest, and 

that the bullet entered his body “closer to his back than to his front.” Medical evidence also 

established that Brown sustained gunshot wounds to the chest and arm, Terreon Smith was 

wounded in his leg and buttocks, and Keith Houston had a gunshot wound to his leg. 

 Several residents of a house located next to the store testified to what happened outside of 

the store. One witness said she saw a group of people running from the store after hearing two 

gunshots. The witness testified that two men then exited the store, with the bigger man 

exchanging gunfire with someone else while he and his companion were standing behind a van. 

Three witnesses testified that a third man approached the smaller of the two by the van and shot 

him in the back. The smaller man was defendant. 

 Portions of the video surveillance footage from the store were played during trial, with 

Lansing Police Department Detective Mark Lewandowsky providing narration. The officer 

testified that he spent 30 to 40 hours reviewing the videos and could identify the people shown in 

the videos based on his investigation of the case and personal interactions with many of them. In 

one segment taken from inside the store, Lewandowsky testified, defendant can be seen with his 

hand on a long, metallic object tucked horizontally in his waistband, which appeared to 

Lewandowsky as the handle of a pistol and a magazine. Lewandowsky also testified that the 

video showed Miller separating himself from the “fighting mass of people” and then he and 

defendant going down to the end of an aisle, where defendant handed something to Miller. 

According to Lewandowsky, the footage shows Miller going back to the front of the store and 

raising his arms. Seconds later, the officer explained, the victim is seen falling to the floor. 

Lewandowsky further testified that Miller is seen a few seconds later holding a gun with an 

“extra long magazine protruding from the bottom of the gun” and Brown attempting to shoot 

Miller. According to Lewandowsky, defendant is observed hiding by a cooler while these shots 

were fired. Lewandowsky said exterior video footage showed five people with guns, including 

Miller. 

II. ANALYSIS 

 Defendant first argues that reversal is warranted because there was insufficient evidence 

to sustain his conviction for second-degree murder on an aiding and abetting theory. This Court 
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reviews sufficiency of the evidence issues de novo. People v Ericksen, 288 Mich App 192, 195-

196; 793 NW2d 120 (2010). 

 “To determine whether the prosecutor has presented sufficient evidence to sustain a 

conviction, [appellate courts] review the evidence in the light most favorable to the prosecutor 

and determine whether a rational trier of fact could find the defendant guilty beyond a reasonable 

doubt.” People v Smith-Anthony, 494 Mich 669, 676; 837 NW2d 415 (2013) (citation and 

internal quotation marks omitted). “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.” People v Nowak, 462 Mich 392, 400; 614 NW2d 78 (2000). Further, “[c]ircumstantial 

evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of 

the elements of a crime,” People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999) (citation 

and internal quotation marks omitted), and “there is absolutely nothing wrong with conviction[s] 

built on inferences derived from circumstantial evidence . . . ,” People v LaFountain, 495 Mich 

968, 969; 844 NW2d 5 (2014) (citation and internal quotation marks omitted). 

 “The elements of second-degree murder are: (1) a death, (2) caused by an act of the 

defendant, (3) with malice, and (4) without justification or excuse.” People v Goecke, 457 Mich 

442, 463-464; 579 NW2d 868 (1998). “Malice is defined as the intent to kill, the intent to cause 

great bodily harm, or the intent to do an act in wanton and wilful disregard of the likelihood that 

the natural tendency of such behavior is to cause death or great bodily harm.” Id. at 464. A 

person who aids or abets in the commission of a second-degree murder may be convicted and 

punished “as if he had directly committed such offense.” MCL 767.39. To convict a defendant 

under an aiding and abetting theory, the prosecution must prove beyond a reasonable doubt three 

elements: 

 (1) the crime charged was committed by the defendant or some other 

person; (2) the defendant performed acts or gave encouragement that assisted the 

commission of the crime; and (3) the defendant intended the commission of the 

crime or had knowledge that the principal intended its commission at the time that 

[the defendant] gave aid and encouragement. [People v Robinson, 475 Mich 1, 7; 

715 NW2d 44 (2006) (citation and internal quotation marks omitted).] 

 Defendant first argues that his conviction under an aiding and abetting theory cannot 

stand because there was insufficient evidence to convict Miller of second-degree murder, 

explaining that it is not clear whether Miller killed Jones without justification or excuse.1

 We 

conclude that there was ample evidence supporting the finding that Miller shot Jones without 

justification or excuse. 

 Our Supreme Court discussed justifiable homicide in People v Riddle, 467 Mich 116, 

119; 649 NW2d 30 (2002), stating as follows: 

 

1

 Miller was actually convicted of first-degree premeditated murder, MCL 750.316(1)(a). 
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 As a general rule, the killing of another person in self-defense by one who 

is free from fault is justifiable homicide if, under all the circumstances, he 

honestly and reasonably believes that he is in imminent danger of death or great 

bodily harm and that it is necessary for him to exercise deadly force. The 

necessity element of self-defense normally requires that the actor try to avoid the 

use of deadly force if he can safely and reasonably do so, for example by applying 

nondeadly force or by utilizing an obvious and safe avenue of retreat. 

There is no evidence supporting defendant’s position that Miller reasonably believed he needed 

to use deadly force to avoid imminent danger of death or great bodily harm. Although the 

evidence showed that Miller was punched during a brawl between several men who were 

carrying guns, video surveillance footage showed that Miller and defendant were able to remove 

themselves from the brawl and retreated to safety behind the end of an aisle inside the store. At 

that point, there was no evidence suggesting that Miller or defendant was in imminent danger of 

any harm. To the contrary, Miller left this place of safety and returned to the brawl. 

 Moreover, there was no evidence that Miller could have reasonably believed he faced 

death or great bodily harm, or that using deadly force was necessary. The evidence suggested 

that Jones was armed while inside the store, and although the testimony showed that other men 

in the store possessed guns, there was no evidence that these guns were displayed to Miller or 

defendant in a threatening manner before Miller opened fire. There was no evidence that any 

shots were fired until Miller returned to the brawl—after retreating—and opened fire. 

 Moreover, Miller’s malice is evident from the manner in which he opened fire. Although 

defendant contends that Miller shot Jones and others in self-defense, the physician who 

examined Jones after the shooting opined that Jones was mortally wounded from a bullet that 

entered his body “closer to his back than to his front.” Further, testimonial, medical, and video 

evidence showed that Miller shot his victims as they were attempting to run away. 

 Additionally, evidence regarding statements Miller made after shooting Jones further 

indicate that he shot Jones and others in retaliation for being punched, rather than in self-defense. 

Indeed, Miller was heard telling Jones after shooting him, “they shouldn’t have jumped on me.” 

Additionally, the jury heard evidence that Miller gave two statements to a police detective after 

the shooting, during which he concealed his involvement in the shootings and never once stated 

that he feared for his life or shot someone in self-defense. In sum, there was an absence of 

evidence that Miller shot Jones with justification or excuse and an abundance of evidence that he 

did so with malice. 

 Alternatively, defendant argues that there was insufficient evidence that he aided and 

abetted a second-degree murder because he did not aid or encourage the shooting and could not 

have reasonably known that Miller would use his gun to shoot anyone. This argument is without 

merit. First and foremost, video evidence showed defendant handing Miller the murder 

weapon—without hesitation—moments after Miller had been punched, and after previously 

announcing that he “had a Magic Johnson for anybody,” meaning a gun and clip holding 32 

bullets. The video evidence also showed defendant hiding for some 25 seconds after handing 

Miller his weapon, which supports the conclusion that he knew Miller planned to use the 

weapon. 
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 Defendant also argues that the trial court committed error in declining to depart below the 

sentencing guidelines. Defendant was sentenced within the guidelines. Because defendant does 

not claim that the guidelines were improperly scored or that sentencing was predicated on 

inaccurate information, appellate review of this issue is precluded under MCL 769.34(10). 

 Affirmed. 

/s/ Donald S. Owens 

/s/ Kathleen Jansen 

/s/ Christopher M. Murray