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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 20, 2017

v No. 330603 Oakland Circuit Court TRAVIS LAMAR HUDSON, LC No. 2014-252721-FC

Defendant-Appellant.

Before: S AWYER , P.J., and S AAD and R IORDAN , JJ.

P ER C URIAM

. Defendant appeals as of right h is jury trial c onvictions of in voluntary manslaughter, MCL 750.321, and possession of a firearm during the commission of afelony (“felony-firearm”), MCL 750.227b. Before trial, defendant p leaded guilty to charges of carrying a concealed weapon, MCL 750.227, felon in possession o f a firearm, MCL 750.224f, an d an additional count of felony-firearm, MCL 750.227b, all of which arose from the same incident as his other convictions. The trial court se ntenced defendant, as a fourth habitual offender, MCL 769.12, to 25 to 40 years’ imprisonment for his involuntary manslaughter c onviction, 5 to 40 years’ imprisonment for his felon in possession of a firearm convictio n, 5 to 40 years’ imprisonment for his carrying a concealed weapon conviction, and 2 years’ impris onment for each felony-firearm conviction. We affirm.

I. FACTUAL BACKGROUND

In the afternoon on September 28, 2014, defendant was attempti ng to locate his stolen iPhone. Using a “Find my Phone” application, defendant believe d that he had traced the phone to the residence of Armon Parke r, who was at home playing video games with his friends, Steffon Causey and Davion Witherspoon. Defendant, who was not acquaint ed with Parker, Witherspoon, or Causey, knocked on Parker’s front door and aske d Parker and Witherspoon whether they had any information about his missing phone. Whil e Parker and Witherspoon were conversing with defendant, Causey also came to the door, tellin g Parker and Witherspoon to stop talking with defendant and to s hut the door. Causey tried to c lose the door, and Parker and Witherspoon told Causey to “chill out.” As defendant gestured during the conversation, his shirt came up, and Parker and Withers poon both noticed that he was ca rrying a gun.

Ultimately, Parker let defendant inside the home. Then, defen dant and Causey got into a confrontation regarding who s hould go down the stairs to the ba sement first. During the-2- altercation, defendant felt scared in light of Causey’s aggress ive behavior, so he pulled out his loaded gun. 1 He claimed that he held the gun by his side, pointing downwar d; that his hand was not on the trigger; a nd that he did not poi nt the gun at Causey . Defendant and Causey exchanged more words, and Causey stepped toward defendant twice. Both ti mes, defendant pushed Causey away with his forearm. Defendant eventually said, “I’m going t o get with you later,” and lowered his head, intending to step away. At that moment, Caus ey rushed toward defendant, reached for the gun, and grabbed defendant’s arm, instigating astruggle over the weapon. Defendant said his back ended up against the front door during the struggle for the gun, and he attempted to retreat from Causey, but he could not reach the la tch with his back arm to get out the door. Then, the gun went off. Defendant claimed that his hands and Causey’s hands were both on the weapon when it fired. Causey was struck by the dis charged bullet, which entered his abdomen and exited through his buttocks. Defendant fled from t he scene. The next day, Causey died from the gunshot wound.

Defendant eventually surrendered to the police. He was charge d with felony murder for Causey’s death, with home inva sion as the predicate felony, MCL 750.316(1)(b), as well as felon in possession of a firearm, carrying a concealed weapon, and tw o counts of felony-firearm. As stated, defendant pleaded guilt y to carrying a concealed weapon , felon in possessi on of a firearm, and one count of felony-firearm. The case then proceeded to tr ial on the remaining charges. Defendant was convicted and sen tenced as discussed above.

II. JURY INSTRUCTIONS

Defendant’s sole claim on appeal is that the trial court impro perly instructed the jury on the causation element of involunt ary manslaughter. Specificall y, defendant claims that the trial court erred when it failed to provide an instruction on the iss ue of proximate causation related to Causey’s allegedly negligent c onduct of rushing toward defendan t and grabbing for the gun.

Defendant has failed to establis h that he is entitled to a new trial on this basis.

A. PRESERVATION

The substance of defendant’s cla im is that the trial court erre d when it failed to provide a jury instruction on contributory negligence in accordance with M Crim JI 16.20. At the end of the trial, the defense objected to the trial court’s instructio ns, contending that they were insufficient on the issue of causation, and requested an instru ction in accordance with M Crim JI 16.15. However, the defense failed to request an instruction i n accordance with M Crim JI 16.20, or object to the trial court’s failure to provide that i nstruction. Thus, def endant’s claim of instructional error based on M Crim JI 16.20 is unpreserved, as “[a]n objection based on one

1 According to defendant, he pulled the gun out because he wante d Causey to leave him alone. He also testified that (1) he was not prepared to actually use it; (2) he did not knowingly put his hand on the trigger; (3) he did not deliberately shoot Causey, intend to kill him, or intend to cause him great bodily harm; (4) he did not know how the gun di scharged; and (5) the shooting was an accident.-3- ground is usually considered insufficient to preserve an appell ate attack based on a different ground.” People v Kimble , 470 Mich 305, 309; 684 NW2d 669 (2004); see also MCL 768.29; MCR 2.512(C); People v Gonzalez , 256 Mich App 212, 225; 663 NW2d 499 (2003); People v Aldrich , 246 Mich App 101, 124-125; 631 NW2d 67 (2001). Even so, defe ndant’s general claim that the trial court failed to a dequately instruct the jury on causation is preserved.

B. STANDARD OF REVIEW AND APPLICABLE LAW

“A criminal defendant has the right to have a properly instruct ed jury consider the evidence against him.” People v Rodriguez , 463 Mich 466, 473; 620 NW2d 13 (2000). As we explained in People v Bartlett , 231 Mich App 139, 143-144; 585 NW2d 341 (1998):

This Court reviews jury instructio ns as a whole to determine wh ether there is error requiring reversal. The instructions must include all th e elements of the charged offense and must not omit material issues, defenses, an d theories if the evidence supports them. Even if somewhat imperfect, instructio ns do not create error if they fairly present to the jury the issues tried and s ufficiently protect the defendant’s rights. [Citations omitted.]

In general, claims of instructional error are reviewed de novo
, Bartlett , 231 Mich App at 143, but “we review for an abuse of discretion a trial court’s determination that a specific instruction is inapplicable g iven the facts of the case,” People v Hartuniewicz , 294 Mich App 237, 242; 816 NW2d 442 (2011).

“Under MCL 769.26, a preserved nonconstitutional error is not g rounds for reversal unless, after an examination of the entire cause, it affirmativ ely appears that it is more probable than not that the asserted error was outcome determinative.” People v Dupree , 486 Mich 693, 710; 788 NW2d 399 (2010). “An error is deemed to have been ‘ou tcome determinative’ if it undermined the reliability of the verdict.” Rodriguez , 463 Mich at 474 (citation omitted). See also Bartlett , 231 Mich App at 143-144 (“A conviction shall not be reversed where the error is harmless . . . . In re viewing a claim that the jury was improp erly instructed, we will not reverse a verdict or order a new trial unless, after reviewing the record , it appears to this Court that the error resulted in a miscarriage of justice. A miscarriage of j ustice, or manifest injustice, occurs when an erroneous or omitted instruction pertained to a basic a nd controlling issue in the case. The defendant usually bears the burden of establishing error re quiring reversal stemming from the issuance of an ina ppropriate jury instru ction.”) (citations omitted). 2

2 Instructional error may be “of constitutional magnitude.” See People v Carines , 460 Mich 750, 761; 597 NW2d 130 (1999). “It is st ructural error requiring au tomatic reversal to allow a jury to deliberate a criminal charge wher e there is a complete failure to instruct the jur y regarding any of the elements necessary to determine if the prosecution has prov en the charge beyond a reasonable doubt.” People v Duncan , 462 Mich 47, 48; 610 NW2d 551 (2000); see also People v Kowalski , 489 Mich 488, 503; 803 NW2d 200 (2011) (“[A] jury instructionthat improperly omits an element of a crime am ounts to a constitutional error.” ) However, “an in structional error-4- Defendant’s unpreserved claim is reviewed for plain error affec ting his substantial rights. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999). To demonstrate plain error, a defendant must show that (1) an e rror occurred, (2) the error w as clear or obvious, and (3) “the plain error affected [the defendant's] substantial rights,” whi ch “generally requires a showing of prejudice, i.e., that the error affected the outcome of the low er 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, fo rfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, i ntegrity 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).

We have previously held that jur y instructions that were somewh at deficient may nonetheless, when viewed as a w hole, have sufficed to protect adefendant’s rights when the jury would have convict ed the defendant on the basis o f the evidence regardless of the instructional error. If the evidence related to the missing element was overwhelming and uncontested, it cannot be said that the er ror affected the defendant’s substantial rights or otherwise undermined the outc ome of the proceedings. [ People v Kowalski , 489 Mich 488, 506; 803 NW2d 200 (2011) (citations omitted).]

C. ANALYSIS

“Involuntary manslaughter is the unintentional killing of anoth er without malice in combination with a specified culpable act or mental state, whic h includes a causation component.” People v Tims , 449 Mich 83, 94; 534 NW2d 675 (1995) (quotation marks, citati on, and emphasis omitted). More specifically, involuntary manslaug hter consists of “[a]n unlawful act, committed with the intent to injure or in a grossly neglig ent manner, that proximately causes death . . . .” People v McCoy , 223 Mich App 500, 502; 566 NW2d 667 (1997). Causation, including factual and proximate causation, is generally an issu e that is determined by the finder of fact. See People v Feezel , 486 Mich 184, 194-196, 201-202; 783 NW2d 67 (2010); People v McKenzie , 206 Mich App 425, 431; 522 NW2d 661 (1994).

The causation element of involuntary manslaughter is construed “in accordance with its common-law meaning.” Tims , 449 Mich at 94. “The common-law causation element is comprised of two components, cau se-in-fact or proximate/legal c ause.” Id . at 95. Thus, to prove
regarding one element of a crime, whether by misdescription or omission, is subject to a harmless error analysis,” id . at 54, and unpreserved constitu tional errors are subject to the plain error rule, Carines , 460 Mich at 764, 768. In sum:

Instructional errors that omit anelement of an offense, or oth erwise misinform the jury of an offense’s elements, do not necessarily render a crim inal trial fundamentally unfair or an unrelia ble vehicle for determining g uilt or innocence. Accordingly, an imperfect instru ction is not grounds for settin g aside a conviction if the instruction fairly present ed the issues to be tried and adequately protected the defendant’s rights. [ Kowalski , 489 Mich at 501-502 (quotation marks and citations omitted).]-5- causation in the criminal context of this case, the prosecution was required to show that the defendant’s conduct was both a factual and proximate cause of C ausey’s death. See Feezel , 486 Mich at 193-195. Notably,

[i]n assessing criminal liability for some harm, it is not nece ssary that the party convicted of a crime be the sole cause of that harm, only that he be a contributory cause that was a substantial factor in producing the harm . The criminal law does not require that there be but one proximate cause of harm found . Quite the contrary, all acts that proximately cause the harm are recogniz ed by the law. [ People v Bailey , 451 Mich 657, 676; 549 NW2d 32 (1996), amended 453 Mich 1204 (1996) (emphasis added).]

See also Tims , 449 Mich at 94-97.

With regard to cause-in-fact, th e prosecution is required to pr ove that but for the defendant’s act, the victim’s death would not have occurred. See Feezel , 486 Mich at 194-195, citing People v Schaefer , 473 Mich 418, 435-436; 703 NW2d 774 (2005); see also People v Hudson , 241 Mich App 268, 284-285; 615 NW2d 784 (2000); People v Zak , 184 Mich App 1, 9- 11; 457 NW2d 59 (1990). With regard to proximate cause, the pr osecution is required to prove that the defendant’s act was a f oreseeable cause of the death, Feezel , 486 Mich at 195, 201-202, citing Schaefer , 473 Mich at 436; see also Zak , 184 Mich App at 11-14, meaning that the prosecution must show that the victim’s death was a “direct and natural” consequence of the defendant’s conduct, Schaefer , 473 Mich at 436 (quotation marks and citations omitted). As the Michigan Supreme Court explained in Feezel , 486 Mich at 195-196:

Proximate causation is a le gal construct designed to prevent criminal liability from attaching when the result of the de fendant's conduct is view ed as too remote or unnatural. If the finder of fact determ ines that an intervening cause supersedes a defendant’s conduct such t hat the causal link betw een the defendant’s conduct and the victim’s injury wa s broken, proximate cause is lacking and criminal liability cannot be imposed. Whether an intervening cause supersedes a defendant’s conduct is a question of reasonable foreseeability. Ordinary negligence is considered reasonably foreseeable, and it is thus not a superseding cause that would sever proximate causation. In contrast, “gros s negligence” or “intentional misconduct” on the part of a victim is considered sufficient to break the causal chain between the defendant and the victim because i t is not reasonably foreseeable. . . . Therefore, while a victim’s negligence is n ot a defense, it is an important factor to be considered by the trier of fact in deter mining whether proximate cause has been proved beyond a reasonable doubt. [Qu otation marks, citations, and footnote omitted; emphasis added.]

See also Schaefer , 473 Mich at 436-438.

Defendant is correct that the trial court did not specifically instruct the jury that the prosecution must prove both factual and proximate causation, an d that the jury could not be expected to understand from the instructions provided by the co urt that the prosecution was required to prove both factual and proximate causation. See Feezel , 486 Mich at 203 (noting that-6- a jury cannot be expected to unde rstand, without specific instr uction, that “cause” is a legal term of art and, therefore, the prosecution is required to prove bot h factual and proximate causation); Schaefer , 473 Mich at 441 (“[T]he trial court erred because the word ‘c ause’ . . . is a legal term of art normally not within the common understanding of jurors, and thus, simply reading the statute to the jury was insufficient. The jury could not be ex pected to understand that the statute required the prosecutor to prove both factual causation and proximate causation.”). Providing an instruction in accordance with M Crim JI 16.15, 3 as requested by defendant, would have made the jury aware that both factual and proximate causation were r equired to find that defendant “caused” Causey’s death.

On appeal, however, defendant now claims that the trial court’ s failure to instruct the jury in accordance with M Crim JI 16.20, regarding the victim’s contributory negligence, 4 is an error requiring reversal. Specifically, he argues that pr oviding an instruction regarding Causey’s contributory negligence under M Crim JI 16.20 was necessary for the jury to properly determine factual and proximate causation in this case. M Crim JI 16.20 accounts for negligent conduct of the victim that causes or contributes to his death. It states, “If you find that [ the deceased ] was negligent, you may only consider that negligence in deciding wh ether the defendant’s conduct was a substantial cause of the accident.” M Crim JI 16.20. Ac cordingly, the instruction reflects the law that (1) a defendant’s conduct must only be a proximate cause, or a substantial factor, of a victim’s death in order for the defendant to have “caused” th e victim’s death, and (2) the victim’s negligence is not a defense , but is only a factor to be considered in evaluating whether the defendant’s conduct is a proximate cause of the victim’s de ath. Feezel , 486 Mich at 196; Tims , 449 Mich at 97-99. “[T]he contributory negligence of a deced ent will not exonerate a defendant of criminal responsibility, where the defendant’s neg ligence is a proximate cause of the decedent’s death.” Bailey , 451 Mich at 678; Tims , 449 Mich at 97-99. Thus, an instruction in accordance with M Crim JI 16.20 is appropriate when there is evidence suggesting that negligent conduct of the victim m ay be relevant to the determin ation of whether the defendant proximately caused the victim’s death. Cf. Hartuniewicz , 294 Mich App at 249-250 (indicating that there must be evidence in the record supporting a proposed instruction that is not an essential element of the charged offense).

3 M Crim JI 16.15 provides: [There may be more than one cause of death.] It is not enough that defendant’s act made it possible for the death to occur. In order to find that the death of [ name deceased ] was caused by the defendant, you must find beyond a reasonabl e doubt that the death was the natural or necessary result of the defendant’s act. The use note accompanying the instruction explains that the “in struction is designed for use where there is an issue as to whether the act of the defendant caused death, or whether death was caused by some intervening cause.”

4 The use note for M Crim JI 16.15 provides, “Where the conduct of the deceased may have caused or contributed to death, give M Crim JI, 16.20.” Additi onally, the use note for M Crim JI 16.20 states, “This instruction is for use when involuntary man slaughter or negligent homicide is charged.”-7- Notably, it is within a trial court’s discretion to determine w hether a specific instruction is applicable under the particular facts of a case. Dupree , 486 Mich at 702. A trial court would act reasonably in declining to give M Crim JI 16.20 if there is no evidence from which the trier of fact could reasonably infer that the victim’s conduct was an intervening cause that superseded the defendant’s conduct and broke the causal link between the d efendant’s conduct and the victim’s injury. See Feezel , 486 Mich at 195-196; Hartuniewicz , 294 Mich App at 249-250.

Even in crediting defendant’s version of the incident, the evi dence in this case did not support an instruction concerning Causey’s alleged contributory negligence in grabbing for the
gun. Bartlett , 231 Mich App at 143-144. Accor dingly, defendant is unable to demonstrate a plain error affecting his substantial rights, as there is no ba sis for concluding that the trial court’s omission of this instruction aff ected the outcome of the trial. See Carines , 460 Mich at 763-764.

Defendant brought a loaded gun into Parker’s house knowing thatCausey, who was acting aggressively, did not want him to come inside. Causey a nd defendant engaged in a dispute regarding who would proceed down the stairs first, and defendant pulled out his loaded gun. Causey “rushed” at defendant, reached for the gun, and gr abbed defendant’s arm. The two men began “struggling” and “tussling” over the gun, and, while both men’s hands were on the gun, the gun discharged accidentally or unintentionally, direct ly causing Causey’s death. 5 Given this evidence, there is no question that defendant’s direct par ticipation in the incident was a cause-in-fact of the gunshot tha t caused Causey’s death. See Feezel , 486 Mich at 193-195; Schaefer , 473 Mich at 435-436; Zak , 184 Mich App at 9-14. There is no dispute that Causey’s death was the result of the gunshot wound, and this wound would not have occurred but for defendant’s act of pulling out t he loaded gun, which prompted C ausey to approach defendant and struggle for control of the gun.

More importantly, the record inc ludes no basis for concluding that Causey’s acts of rushing toward defendant and grabbing for the gun constituted asufficient “intervening cause [that] supersede[d] . . . defe ndant’s conduct” and broke “the c ausal link between the defendant’s conduct and the victim’s injury,” so that “proximate cause is l acking and criminal liability cannot be imposed.” Feezel , 486 Mich at 195-196. There can be no dispute as to whether C ausey’s death was a “direct and natural,” or a foreseeable, result of d efendant’s act of pulling out the loaded gun during the altercation, Feezel, 486 Mich at 195, 201-202; Schaefer , 473 Mich at 438, or whether defendant’s conduct was a substantial cause of Cause y’s gunshot-related death, Bailey , 451 Mich at 676; Tims , 449 Mich at 96-97.

The linchpin in the superseding cause analysis . . . is whether the intervening cause was foreseeable based on an objective standard of reasonableness. If it was reasonably foreseeable, then the defendant’s conduct will be co nsidered a proximate cause. If, however, the intervening act by the victi m or a third party was not reasonably foreseeable—e.g., gross negligence or intent ional

5 Defendant denied that he knowingly put his hand on the trigger or deliberately shot Causey, and he did not know how the gun was discharged. There was no t estimony that Causey fired the
gun.-8- misconduct—then generally the causal link is severed and the de fendant's conduct is not regarded as a proximate cause of the victim’s injury or death. [ Schaefer
, 473 Mich at 437-438.]

Given the evidence in this cas e, we cannot conclude that Causey ’s acts of rushing toward defendant and grabbing for the gun were unforeseeable. Instead , we find it highly foreseeable that an individual in Causey’s situation, faced with a gun disp layed during an altercation, would (1) perceive the danger presented by the gun, (2) fear that def endant might use the gun against him, and (3) react by attempting to disarm defendant by grabbin g for the gun, thereby prompting a struggle for control of the gun. Furthermore, it is undoubte dly foreseeable that such a struggle could result in the discharge of a loaded gun. Therefore, give n the objective foreseeability of Causey’s conduct, his acts of rushing toward defendant and grab bing for the gun cannot constitute an intervening, supers eding cause sufficient to brea k the causal chain between defendant’s conduct and Causey’s death that would eliminate def endant’s criminal responsibility for the death. Feezel , 486 Mich at 193-195; Schaefer , 473 Mich at 437-438.

A “merely . . . contributory cause of death, in addition to the defendant’s conduct,” is not sufficient to cut off criminal liability. Bailey , 451 Mich at 678-681. Defenda nt’s conduct did not have to be the proximate cause of the victim’s death for criminal liability t o attach. Instead, his conduct only needed to be a proximate cause, i.e. , a substantial factor in producing the harm. Bailey , 451 Mich at 676; Tims , 449 Mich at 95-97. Again, “the c ontributory ne gligence of a decedent will not exonerate a defendant of criminal responsibil ity, where the defendant’s negligence is a proximate cause of the decedent’s death.” Bailey , 451 Mich at 678, citing Tims
, 449 Mich 83.

For all of these reasons, the evidence did not support an addit ional instruction in accordance with M Crim JI 16.20 regarding Causey’s alleged cont ributory negligence, and the trial court’s failure to provide such an instruction did not co nstitute a plain error affecting defendant’s substantial rights. See Carines , 460 Mich at 763-764.

We note that even though defendant broadly characterizes his cl aim on appeal by stating that the trial court failed to ad equately instruct the jury on the issue of proximate causation, the gravamen of his claim is that the instructions provided by the trial court were insufficient on the issue of proximate cause because they failed to instruct the ju ry to take into account the role of Causey’s conduct in his own death as an “intervening cause” that broke the causal connection between defendant’s actions and Causey’s death. We find it espe cially noteworthy that defendant does not contend that his conduct would have been insufficient on its own to constitute a proximate cause of Causey’s death. For example, he does not co ntend that, without considering Causey’s conduct, “the death is so remote from the defendant’s conduct that it would be unjust to permit conviction.” Tims , 449 Mich at 95. Accordingly, defendant has not identified an y further error in the trial court’s instru ctions on the issue of proxima te causation, and we need not further consider whether the trial court adequately instructed the jury on the issue of causation.

Nevertheless, we note that defe ndant’s constituti onal rights we re protected in this case, as the trial court provided an instruction that stated all of the elements of involuntary manslaughter in accordance with M Crim JI 16.10. See People v Duncan , 462 Mich 47, 48; 610 NW2d 551 (2000); Kowalski , 489 Mich at 503. The trial court also instructed the jury ondefendant’s theory-9- of self-defense. See Bartlett , 231 Mich App at 143-144. Again, reversal is not warranted by the court’s failure to provide any s upplemental or additional instr uctions on the issue of proximate causation, whether under M Crim JI 16.15 or M Crim JI 16.20, as the only rational view of the evidence is that defendant’s conduct was the proximate cause of Causey’s death. See id

. Therefore, under the circumstances of this case, we conclude th at the instructions provided by the trial court, “[e]ven if somewhat imperfect, . . . fairly pr esent[ed] to the jury the issues tried and sufficiently protect[ed] the defendant’s rights.” Id

.

III. CONCLUSION

Defendant is not entitled to a new trial based on the trial co urt’s failure to further instruct the jury on the issue of p roximate causation.

Affirmed.

/s/ David H. Sawyer /s/ Henry William Saad /s/ Michael J. Riordan