-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 11, 2016

v No. 323323 Otsego Circuit Court BRUCE ALLEN COOPER, LC No. 14-004804-FH

Defendant-Appellant.

Before: B OONSTRA , P.J., and K. F. K ELLY and M URRAY , JJ.

P ER C URIAM

. Defendant appeals as of right his conviction following a jury trial of felonious assault, MCL 750.82. The trial court sentenced defendant as a habitual offender, fourth offense, MCL 769.12, to 24 months’ to 15 years’ imp risonment. We affirm.

This prosecution stems from an incident occurring outside a Ko hl’s department store. Defendant and a female companion had been under surveillance by Ryan Wright, a lossprevention agent. At a certain point, Wright approached the wo man after she left the store and asked her to return. She declined and climbed into a car drive n by defendant that was waiting at the curb. Wright stepped behind the vehicle and recorded its l icense plate number. Wright testified that he made eye contac t with defendant in the vehicl e’s rearview mirror, an assertion defendant denied. According to Wright, the vehicle started to come back toward him “very rapidly,” and he had to “jump out of the way.” He testified th at he feared he might be killed or injured. Defendant testified that he went in reverse because h e “didn’t want him to get the plate number.” Defendant denied that he was trying to hit Wright or frighten him.

Defendant raises two challenges to the adequacy of the evidenc e adduced in favor of the verdict. He first contends that there was insufficient evidenc e to convict him of felonious assault because the evidence did not establish beyond a reasonable doub t that he acted “wi th the intent to injure or place the victim in reasonable apprehension of an imm ediate battery.” People v Avant
,-2- 235 Mich App 499, 505; 597 NW2d 864 (1999). 1 We review this assertion de novo. People v Cline , 276 Mich App 634, 642; 741 NW2d 563 (2007).

When reviewing a challenge to the sufficiency of the evidence, this Court reviews “the evidence in a light most favorable to the prosecutor to determi ne whether any trier of fact could find the essential elements of the crime were proven beyond a r easonable doubt.” People v Robinson , 475 Mich 1, 5; 715 NW2d 44 (2 006). “Circumstantial evidence and reasonable inferences therefrom may be sufficient to prove all the element s of an offense beyond a reasonable doubt.” People v Schumacher , 276 Mich App 165, 167; 740 NW2d 534 (2007). Any conflicting evidence must be resolved in favor of the prosecuti on. People v Terry , 224 Mich App 447, 452; 569 NW2d 641 (1997). “Questions of credibility a re left to the trier of fact and will not be resolved anew by this Court

. ” Avant , 235 Mich App at 506.

“[B]ecause it can be difficult to prove a defendant’s state of mind on issues such as knowledge and intent, minimal circumstantial evidence will suff ice to establish the defendant’s state of mind, which can be infe rred from all the evidence pres ented.” People v Kanaan , 278 Mich App 594, 622; 751 NW2d 57 (2008). Defendant testified tha t he never made eye contact with Wright and had no intent to hit or frighten him. By contr ast, Wright testified that he made eye contact with defendant in the vehicle’s rearview mirror whi le he was standing behind the vehicle. These conflicting assert ions are an issue of credibil ity that is “left to the trier of fact and will not be resolved anew by this Court

. ” Avant , 235 Mich App at 506. The jury could reasonably infer from Wright’s t estimony that defendant knew Wr ight was present and intended to hit him or cause him to fear an immediate battery when he pl aced the car into reverse and accelerated suddenly. Viewing the evidence in the light most f avorable to the prosecution, there was sufficient evidence for the jury to find that defendant had the requisite intent to commit felonious assault.

Defendant also argues that the trial court abused its discreti on in denying his motion for a new trial based on the argument that the verdict was against th e great weight of the evidence. We review a denial of a motion for new trial for an abuse of di scretion. People v Unger , 278 Mich App 210, 232; 749 NW2d 272 (2008). “A trial court abuses its discretion when it selects an outcome that does not fall within the range of reasonable an d principled outcomes.” People v Young , 276 Mich App 446, 448; 740 NW2d 347 (2007).

A trial court “may grant a new trial only if the evidence prep onderates heavily against the verdict so that it would be a miscarriage of justice to allow t he verdict to stand.” People v Lemmon , 456 Mich 625, 627; 576 NW2d 129 (1998). If the “ ‘evidence i s nearly balanced, or is such that different minds would naturally and fairly come to di fferent conclusions,’ the judge may not disturb the jury findings although his judgment might i ncline him the other way.” Id . at 644, quoting State v Kringstad , 353 NW2d 302, 307 (ND, 1984).

1 “The elements of felonious assau lt are (1) an assault, (2) wit h a dangerous weapon, and (3) with the intent to injure or place the victim in reasonable apprehen sion of an immediate battery.” Avant , 235 Mich App at 505. Defendant only challenges the sufficien cy of the evidence with respect to intent.-3- Defendant contends that the verdict was against the great weig ht of the evidence because he testified that he was distracted by an injury his female com panion had sustained, 2 did not make eye contact with Wright, and continued to reverse the car beyond the place where Wright was standing. As with defendant’s sufficiency of the evidence challenge, this is an argument predicated on an assessment of the credibility of the witnesses , a matter left to the fact-finder to resolve. Lemmon , 456 Mich at 637.

For the same reasons set forth with respect to defendant’s suf ficiency of the evidence challenge, we conclude the trial court did not err in denying defendant’s motion for new trial. The verdict was well supported by the evidence presented and th e reasonable inferences arising therefrom.

Affirmed.

/s/ Mark T. Boonstra /s/ Kirsten Frank Kelly /s/ Christopher M. Murray

2 Defendant’s female companion accidentally cut her finger open while trying to cut off merchandise security tags in the dressing room.