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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 10, 2015

v No. 306989 Wayne Circuit Court COREY O’NEIL WATSON, LC No. 11-002920-FC

Defendant-Appellant.

Before: C AVANAGH , P.J., and M ETER and S HAPIRO , JJ.

P ER C URIAM

. Defendant appeals as of right h is jury convictions of first-de gree premeditated murder, MCL 750.316(1)(a), two counts of assault with intent to commit murder, MCL 750.83, intentional discharge of firear m at dwelling or occupied struct ure, MCL 750.234b, and felonyfirearm, MCL 750.227b. We affirm.

This case involves two street gangs, Killers Mean Business (KM B) and Second to None (220), and an incident that resulted in the death of Reese Will iams, a member of 220. During a party for a KMB member, a fight broke out between members of th e two gangs. Shots were fired and the party dispersed. Later on, while Williams was dr iving his vehicle with other members in his car, gunshots were heard coming from the directi on of a house that was a hangout for 220 members. Williams began driving toward the han gout and, as he passed by a nearby alley, he was shot through the vehicle. He ultimately d ied from the bullet that penetrated his heart and both lungs. Defe ndant was identified by witnesse s as the shooter.

On appeal, defendant argued that his mandatory life sentence w ithout parole for firstdegree murder violated the Eighth Amendment. See Miller v Alabama , 567 US ___; 132 S Ct 2455, 2475; 183 L Ed 2d 407 (2012). He concedes, however, that this issue is moot because he was subsequently resentenced to 36 to 60 years’ imprisonment fo r his first-degree murder conviction.

Defendant also argues that a s upplemental jury instruction pro vided in response to a juror’s question during deliberati ons was improper. We disagre e.

“This Court reviews de novo claims of instructional error.” People v Dupree , 284 Mich App 89, 97; 771 NW2d 470 (2009). “[J]ury instructions that inv olve questions of law are also reviewed de novo.” People v Schaefer , 473 Mich 418, 427; 703 NW2d 774 (2005). A trial-2- court’s decision regarding whether a jury instruction is applic able to the facts of the case is reviewed for an abuse of discretion. People v Gillis , 474 Mich 105, 113; 712 NW2d 419 (2006).

The court initially instructed the jury regarding the elements of first-degree premeditated murder. Later, the court received the following question from a juror: “For the second element of first degree murder does Defendant specifically have to inte nd to kill Reese or intend to kill any person for it to satisfy the s econd element?” The court ad vised counsel as follows:

[T]his Court believes that the proper response to that is the reading of the transferred intent instruction si xteen point twenty-two which r eads as follows[:] [“]If the Defendant intended to kill one person, but by mistake or accident killed another person the crime is the same as if the first person had actually been killed.[”] . . .

Defense counsel objected to the reading of the transferred inte nt instruction arguing that, because it was not included in the original instructions, it should not be provided as a supplemental instruction. The court noted the objection, but concluded that the instruction was proper and gave the instruction. Defendant argues that the supplemental i nstruction on transferred intent violated his Sixth Amendment right s to a fair trial and effecti ve assistance of counsel.

A defendant is entitled to have a jury determine his guilt or innocence after considering every essential element of the charged offense. People v Kowalski , 489 Mich 488, 501; 803 NW2d 200 (2011). When a trial court’s supplemental instruction s are responsive to a request from the jury and are not misleading, there is no need to set a side a conviction. People v Parker
, 133 Mich App 358, 362; 349 NW2d 514 (1984). The Michigan Cour t Rules give trial courts discretion to decide whether a supplemental instruction during deliberations is proper. Specifically, MCR 2.513(N)(1) provides: “After jury deliberati ons begin, the court may give additional instructions that are appropriate.” More specifical ly, MCR 2.513(N)(2) states:

If questions arise, the court and the parties shall convene, i n the courtroom or by other agreed-upon means. The question shall be read into the record, and the attorneys shall offer comme nts on an appropriate response. The court may, in its discretion, provide the jury with a specific response to th e jury’s question, but the court shall respond to all questions asked, even if the res ponse consists of a directive for the jury to c ontinue its deliberations.

Here, the supplemental jury instruction provided by the court regarding transferred intent was appropriate and was not misleading. As this Court has held , under the doctrine of transferred intent it is suffici ent for a prosecutor to show th at a defendant had the requisite state of mind to kill; it is not nece ssary to show that a defendant’s state of mind was directed at a specific person or the actual victim. See People v Abraham , 256 Mich App 265, 270; 662 NW2d 836 (2003); People v Lawton , 196 Mich App 341, 350-351; 492 NW2d 810 (1992).

Defendant does not argue that th e court erred in its descripti on of the doctrine of transferred intent, or that there was insufficient evidence of his intent to kill. Rather, defendant argues that the supplemental jury instruction added a new theor y of liability after closing arguments and without allowing defense counsel to argue the new theory. Defendant cites to-3- Loveless v United States , 260 F2d 487 (DC CA, 1958), in whi ch the court reversed the defendant’s manslaughter conviction when the court informed the parties it would only provide an instruction on second-degree murder, then chose to include a manslaughter instruction after closing arguments. Unlike manslaughter, however, the doctrine of transferred intent is not itself a separate substantive offense; it is a mechanism of proving in tent, one element within the substantive offense of first-degree murder.

Defendant also relies on United States v Horton , 921 F2d 540 (CA 4, 1990) and United States v Fontenot , 14 F3d 1364 (CA 9, 1994), to support his claim that he should have been given an opportunity to provide additional comment following th e supplemental instruction. But these authorities do not support his argument. To the contrary

, Horton and Fontenot stand for the proposition that “[a] supplem ental instruction which merely clarifie[s] an existing theory does not mandate additional arguments.” Fontenot , 14 F3d at 1368, citing Horton , 921 F2d at 547. Accordingly, in Horton , a case involving a first-degree murder charge, the circuit co urt held that a supplemental jury instruction on aiding and abettin g, which is not a separate substantive offense, was appropriate. Horton , 921 F2d at 543-544; see also People v Robinson
, 475 Mich 1, 6; 715 NW2d 44 (2006) (explaining that aiding and a betting is not itself a substantive offense).

Defendant also argues that F RCP 30 and MCR 2.513(N)(1) require d the lower court to provide him with opportunity to address the supplemental instru ction before the jury. However, “an opportunity to argue” a supplem ental jury instruction “is n ot dictated by Rule 30.” Fontenot
, 14 F3d at 1368. Moreover, althou gh defendant references the fi rst half of MCR 2.513(N)(1), which states that a “court must inform the parties of its propo sed action . . . before their closing arguments,” he ignores the second half of the subrule, which st ates that “[a]fter jury deliberations begin, the court may give additional instructions that are appr opriate.” Neither rule cited by defendant required the lower court to provide him the opportuni ty to argue the supplemental instruction bef ore the jury.

Finally, reversal for instructi onal error is only required if the error was prejudicial to a defendant. People v Clark , 453 Mich 572, 587; 556 NW2d 820 (1996). Defendant does not argue that the lower court’s supplemental jury instruction on t ransferred intent affected the outcome of his case. Further d efendant does not suggest that d efense counsel h ad any additional arguments to make even if the court had given him the opportuni ty.

In summary, defendant’s claim of instructional error is withou t merit.

Affirmed.

/s/ Mark J. Cavanagh /s/ Patrick M. Meter /s/ Douglas B. Shapiro