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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 17, 2015

v No. 318642 Oakland Circuit Court MELVIN JAMES WOFFORD, LC No. 2012-241569-FC

Defendant-Appellant.

Before: D ONOFRIO , P.J., and R IORDAN and G ADOLA , JJ.

P ER C URIAM

. Defendant, Melvin James Wofford, appeals as of right his convi ction of first-degree premeditated murder, MCL 750.316(1 )(a) and (b). During the cou rse of burglarizing the victim’s, Thomas Gilmore’s, pla ce of business on June 22 or 23, 1993, defendant fatally strangled Gilmore. Defendant w as sentenced to life in prison. We affirm.

I. JURY DELIBERATIONS

A. STANDARD OF REVIEW

Defendant first contends that he was denied due process when t he trial court removed a juror during deliberations and replaced her with an alternate i nstead of granting a mistrial. We review the trial court’s decision on a motion for a mistrial an d decision to remove a juror for an abuse of discretion. People v Coy , 258 Mich App 1, 17; 669 NW2d 831 (2003); People v Tate
, 244 Mich App 553, 559-560; 624 NW 2d 524 (2001). “An abuse of d iscretion occurs when the court chooses an outcome that falls outside the range of reason able and principled outcomes.” People v Unger , 278 Mich App 210, 217; 749 NW2d 272 (2008). “A trial court s hould grant a mistrial only for an irregularity that is prejudicial to the ri ghts of the defendant and impairs his ability to get a fair trial.” People v Schaw , 288 Mich App 231, 236; 791 NW2d 743 (2010) (quotation marks and citation omitted).

B. ANALYSIS

On the second day of jury deliberations, the jury sent a note to the court indicating that the jurors were 11 to 1, with no chance of the one changing his or her view. The court instructed the jury to resume deliberations in the hope that further discu ssion would result in a verdict. An hour later, the court received another note in which the jury i ndicated that the doubts of one of-2- the jurors were unreasonable, a nd requested advice regarding ho w to proceed. The court instructed the jury that, if it wished to communicate with the court, any note had to come from the foreperson. The court also rem inded the jury that it must not let anyone know how the voting stands.

The next day, the court received several notes from the jury. The first noted stated that one juror was not cooperating, refused to deliberate or prove h er vote, “she just wants a hung jury,” and she had “looked up the phrase to see what it meant b efore” deliberations started. Another note stated: “We have a [juror] who SERIOUSLY doesn’t u nderstand what Reasonable Doubt is!! We have a hung jury [a]nd we need instructions!!! HELP!!!” The trial court reread the reasonable doubt instruction, reread the aiding and abettin g instruction, and instructed the jury that it must follow the law and not obtain information fro m any outside source. The court also read a second deadlock instr uction, encouraging the jurors to continue deliberations.

Two days later, an attorney appeared at court and indicated th at one of the jurors—Ms. McGraw—had contacted him and said that she was being harassed and verbally abused. Defendant stated that he assumed McGraw was the holdout, and re quested a mistrial because of the potential for a coercive verdict. Yet, the court noted tha t no one knew if McGraw was the holdout, and that for all they knew the vote could be equally d ivided at that point. The court noted that McGraw violated its explicit instructions about cont acting anyone about the case, which constituted good cause to remove her. The court then rep laced McGraw with an alternate, and gave the following instruction:

We now have a reconstituted jury pool. A juror has been excus ed for cause and replaced with an alternate. This has nothing to do w ith your deliberations and you should not allow this fact to influence y our deliberations in any way. You must start your deliberations from the beginning. You should not discuss among you, nor with the new juror, any of your prior de liberations. Again, you must begin your de liberations anew.

More than an hour and a half later , the jury returned its guilt y verdict.

Defendant first contends that th e trial court erred in removin g the juror because, unlike other cases involving the removal of a juror, McGraw was not si ck. See, e.g., People v Tate , 244 Mich App 553; 624 NW2d 524 (2001). However, defendant has not supported his argument that only severe sickness can serve as the basis for juror removal a fter deliberations have begun. See,
e.g., People v Harvey , 167 Mich App 734, 744; 423 NW2d 335 (1988) (reasons for disch arging a juror include “personal disability or legal disqualification.”) . In fact, MCL 768.18 provides: “Should any condition arise during the trial of the cause which in the opinion of the trial court justifies the excusal of any of the jurors so impaneled from fu rther service, he may do so and the trial shall proceed, unless the number of jurors be reduced to less than 12.” As this Court explained in Tate :
[W]hile a defendant has a funda mental interest in retaining th e composition of the jury as originally chosen, he has an equally fundamental right to have a fair and impartial jury made up of persons able and w illing to cooperate, a right that is protected by removing a juror unable or unwilli ng to cooperate.-3- Removal of a juror under Michigan law is therefore at the discr etion of the trial court, weighing a defendant’s fundamental right to a fair and i mpartial jury with his right to retain the jury originally chosen to decide his fa te. [244 Mich App at 562 (quotation marks and citation omitted).]

Also, the court rules broadly permit the trial court to retain alternate jurors dur ing deliberations, presumably in case of removal. MCR 6.411.

Contrary to defendant’s assertion on appeal, the trial court di d not remove McGraw because she was a lone hold-out who was standing in the way of conviction. In fact, defendant’s basic premise is flawed. Early on in the deliberations, the ju ry informed the court that they were 11 to 1. However, the jury did not reveal which way the majori ty was leaning or the identity of the hold-out. Several days of continued deliberation then ensu ed. As the trial court found, there was no evidence at the time of McGraw’s removal what way the ju ry was leaning, or the potential division.

Moreover, the record clearly demonstrates that the trial court removed this juror because she flagrantly violated the court’s instructions by discussing the deliberations with a non-juror. Neither party contests McGraw’s blatant disregard for the court ’s instructions, nor that it implicated her ability to follow jury instructions. Thus, the trial court protected defendant’s right to a fair and impartial jury “by removing a juror unable or unw illing to cooperate.” Tate, 244 Mich App at 562.

Defendant, however, contends that the trial court still should have granted a mistrial because of the danger that the alternate juror would be influen ced when faced with 11 jurors who were convinced of his guilt. Yet, as discussed supra , there is no evidence regarding what way the jury was leaning at the tim e of McGraw’s removal. Thus, to conclude that there was only one hold-out, or that it was McGraw, is mere speculation. Sign ificantly, the trial court properly instructed the newly configured jury that it must deliberate an ew, and disregard its prior deliberations. See MCR 6.411; Tate , 244 Mich App at 567 (“the j ury in such situations should be instructed to begin deliberations anew.”). As we have recog nized, “[j]urors are presumed to follow their instructions, and instructions are presumed to cur e most errors.” People v Abraham
, 256 Mich App 265, 279; 662 NW2d 836 (2003). “Because it is . . . pure speculation that the alternate juror was coerced, we conclude that defendant was not prejudiced by the substitution of the alternate juror.” People v Mahone , 294 Mich App 208, 218; 816 NW2d 436 (2011).

II. SUFFICIENCY O F THE EVIDENCE

A. STANDARD OF REVIEW

Defendant next contends that the evidence was insufficient to support his conviction. We review de novo a challenge to the sufficiency of the evidence. People v Ericksen , 288 Mich App 192, 195; 793 NW2d 120 (2010). “In determining whether the pro secutor has presented sufficient evidence to sustain a conviction, an appellate court is required to take the evidence in the light most favorable to the prosecutor” to ascertain “wheth er a rational trier of fact could find the defendant guilty be yond a reasonable doubt.” People v Tennyson , 487 Mich 730, 735; 790 NW2d 354 (2010) (quotation marks and citations omitted). We re solve conflicts of the evidence-4- in favor of the prosecution, “and we will not interfere with th e jury’s determinations regarding the weight of the evidence and the credibility of the witnesses .” Unger , 278 Mich App at 222. Furthermore, circumstantial evidence and reasonable inferences arising from them can constitute sufficient proof of the elements of a crime. People v Allen , 201 Mich App 98, 100; 505 NW2d 869 (1993).

B. ANALYSIS

The only element defendant challenges regarding his first-degr ee murder conviction is identity. “[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).

The prosecutor’s theory at trial was that the person who broke into the building also killed the victim. Although this theory involves multiple laye rs of inferences, it is supported with evidence. After the break-in, the victim was not seen or heard from until his body was discovered. Moreover, the DNA from the blood found on the work bench and tool room wall matched defendant’s DNA. The hair on the duct tape near the po int of entry also matched defendant’s DNA. The jury could infer from this evidence that defendant entered through the metal-covered window, cut himself on the broken glass fragments , caught his hair on the duct tape that had secured the metal to the window, removed the saw, and dripped small quantities of blood on the workbench and wall. The DNA evidence established defendant’s identity as the perpetrator of the break-in.

The similarity of footwear impressions near the victim’s body, on the shovel found near the bent metal covering, and the metal covering further establi sh the common identity of the perpetrator. Furthermore, as the perpetrator of the break-in, defendant had a motive to kill the victim because the victim could identify him. The jury could i nfer that a stranger would have chosen imme diate flight instead of murder, as the victim would not have recognized the perpetrator. Additionally, defe ndant had a motive to steal bec ause the testimony indicated that he was chronically short of money in 1993. Defendant often borrowed money from coworkers and others. He also admitted to the grand jury that he might h ave given his car to his brother in payment of a loan. The victim’s wallet was never found.

Moreover, although defendant was with another employee the nig ht of the break-in, he left that person’s house claiming he had something to do. When the coworker woke up in the morning, he found defendant asl eep on the living room floor. T he jury could infer that defendant committed the offenses between the time he left the house and r eturned. The jury also could have found relevant that defendantmissed work after the murder , he was uninterested in a coworker’s distress over the victim’s death, and he was unchara cteristically ingratiating toward the police.

On appeal, defendant highlights contrary evidence, such as the fact that other DNA samples collected from the building did not match his DNA, he w as excluded as the person who left the fingerprint or palm pri nt on the vestibule door, the f ootwear he was wearing at the time of the police interview was not a match to the footwear impress ions at the scene, the lack of eyewitnesses, and that the coworker—whose house defendant slept at—was intoxicated. However, these arguments involve the weight of evidence and the credibility of witnesses. “We-5- do not interfere with the jury’s assessment of the weight and c redibility of witnesses or the evidence[.]” People v Dunigan , 299 Mich App 579, 582; 831 NW2d 243 (2013). “[T]he prosecution is only required to produce sufficient evidence to establish guilt; it is not required to negate every reasonable theory consistent with a defendant's in nocence.” People v Hardiman
, 466 Mich 417, 430; 646 NW2d 158 (2002).

III. CONCLUSION

The trial court did not abuse its discretion in replacing a ju ror with an alternate or in declining to grant a mistrial . Sufficient evidence supported d efendant’s conviction. We affirm.

/s/ Pat M. Donofrio /s/ Michael J. Riordan /s/ Michael F. Gadola