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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 19, 2016

v No. 323333 Kent Circuit Court ADAM ANDREW PHILLIPS, LC No. 13-011001-FC

Defendant-Appellant.

Before: B OONSTRA , P.J., and S AWYER and M ARKEY , JJ.

P ER C URIAM

.
Defendant was convicted of assault with intent to commit murde r, MCL 750.83, after a bench trial, and was sentenced to 17-1/2 to 70 years’ imprisonm ent. He appeals as of right. We affirm.

Defendant first argues that the trial court abused its discret ion when it admitted evidence of defendant’s prior acts of dom estic violence, including two p rior incidences of violence between defendant and the victim, as well as various threats to kill the victim. The court found that the evidence was admissible under MCL 268.27b.

Decisions about the admissibility of evidence are within the t rial court’s discretion and should only be reversed where there is a clear abuse of discret ion. People v Starr , 457 Mich 490, 494; 577 NW2d 673 (1998). When a trial court chooses an outcom e that is outside the range of reasonable and principled outcomes, there has been an abuse of discretion. People v Orr , 275 Mich App 587, 588-589; 739 NW2d 385 (2007). Preliminary questi ons of law are reviewed de

novo. People v Katt , 468 Mich 272, 278; 662 NW2d 12 (2003).

In general, evidence of other crimes, wrongs, or acts is admiss ible under MRE 404(b) if the evidence is (1) offered for a proper purpose rather than to prove the defendant’s character or propensity to commit the crime, (2) relevant to an issue or fac t of consequence at trial, and (3) sufficiently probative to preva il under the balancing test of M RE 403. People v Hoffman, 225 Mich App 103, 105; 570 NW2d 146 (1997), lv den 459 Mich 857 (19 98). When a defendant is accused of an offense involving domestic assault, however, “evi dence of the defendant’s commission of other acts of domes tic violence is admissible for any purpose for which it is relevant, if it is not otherwise excluded under Michigan rule o f evidence 403.” MCL 768.27b. The statute defines acts of domestic violence to include “[c]au sing or attempting to cause physical or mental harm to a family or household member” or “[e ]ngaging in activity toward a-2- family or household member that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested.” MCL 768.27b(5 )(a). The category “family or household member” includes individuals with whom the person has or has had a dating relationship or a child in common. MCL 768.27b(5)(b). Under t he statute, trial courts can exercise their discretion to admit evidence of other domestic a ssaults “to prove any issue, even the character of the accused.” People v Cameron , 291 Mich App 599, 609; 806 NW2d 371 (2011) (internal citations omitted). Prior acts of domestic vi olence can be admissible regardless of whether the acts were identical to the charged offense. People v Meissner , 294 Mich App 438, 452; 812 NW2d 37 (2011).

Defendant was charged with an offense involving domestic violen ce as defined by MCL 768.27b. That is, he was charged with “causing physical harm” to the victim, a “family or household member.” The victim is a “family or household member ” because she had a dating relationship and a child in common with defendant. The prior a cts presented by the prosecution at trial also qualify as acts of domestic violence, since defen dant “caus[ed] physical harm” to the victim and made death threats toward her “that would make a rea sonable person feel terrorized, frightened, intimidated, threatened, harassed, or molested.” T herefore, this evidence is admissible for any reason for whi ch it is relevant, as long as it satisfies MRE 403.

Under MRE 403, the Court must first determine whether the intro duction of defendant’s prior acts of domestic violence was unfairly prejudicial and th en “weigh the probativeness or relevance of the evidence” against the unfair prejudice. Cameron , 291 Mich App at 610. Evidence is unfairly prejudicial when it presents a danger that a jury will give marginally probative evidence undue or preemptive weight. People v Lane , 308 Mich App 38, 55; 862 NW2d 446 (2014). Although evidence of defendant’s prior abuse could create the risk of prejudice, all relevant evidence is damaging to some extent and the fact that evidence is prejudicial does not make its admission unfair . People v Murphy (On Remand) , 282 Mich App 571, 583; 766 NW2d 303 (2009). The evidence at issue here was not marginally probative and there is no evidence on the record that it was given undue or p reemptive weight at trial. “The determination whether the probative value of evidence is substa ntially outweighed by its prejudicial effect is best left to a contemporaneous assessmentof the presentation, credibility, and effect of the testimony.” People v Waclawski , 286 Mich App 634, 670; 780 NW2d 321 (2009). The trial court found, and the record supports, that t his evidence was important to prove an essential element of the case, defendant’s intent to kill th e victim. The probative value here outweighed any danger of unfair prejudice, and therefore the tr ial court did not abuse its discretion in admitting this evidence. Because MCL 768.27b pro perly applies here, no analysis of 404(b) is required. See People v Pattison , 276 Mich App 613, 616; 741 NW2d 558 (2007).

Defendant next argues that there was insufficient evidence to s ustain his conviction. A challenge to the sufficiency of the evidence requires this Cour t to view the evidence de novo in a light most favorable to the prosecution and determine whether a ny reasonable juror would be warranted in finding that the essential elements of the crime w ere proven beyond a reasonable doubt. People v Harverson , 291 Mich App 171, 177; 804 NW2d 757 (2010).

To convict defendant of assault wi th intent to commit murder, t he prosecution was required to prove that defendant committed (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder. People v Henderson , 306 Mich App 1, 9;-3- 854 NW2d 234 (2014). Defendant argues that he did not have the requisite intent to kill. The intent required to convict defenda nt of assault with intent to kill must be an actual intent to kill and “may not be proven by an intent to inflict great bodily har m or a wanton and wilful disregard of the likelihood that the natural tendency of the acts will li kely cause death or great bodily harm.” People v Brown , 267 Mich App 141, 150; 703 NW2d 230 (2005). Intent may be pr oven by inference from any facts in evidence, People v Lawton , 196 Mich App 341, 350; 492 NW2d 810 (1992), and because of the difficulty of proving an actor’s state of mind, minimal circumstantial evidence is s ufficient to prove intent, People v Fetterley , 229 Mich App 511, 517- 518; 583 NW2d 199 (1998).

The testimony in this case could cause a reasonable jury to inf er that defendant intended to commit murder. The prosecution presented evidence that defe ndant previously assaulted the victim when he believed she had cheated on him and made various threats to kill the victim. The assault at issue here occurred when defendant found naked photo graphs on the victim’s cellular telephone. He responded by slamming her into the wall multiple times and repeatedly kicking and punching her in the head, even after she became unconscious . When she arrived at the hospital, the victim was comatose and in the process of dying. Without medical intervention, the victim would have died. A trier of fact could reasonably infer from this evidence that defendant had the requisite inte nt to kill when he ass aulted the victim. Therefore, the prosecution presented sufficient evidence to convict de fendant of assault with intent to commit murder.

Affirmed.

/s/ Mark T. Boonstra /s/ David H. Sawyer /s/ Jane E. Markey