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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED November 19, 2015

v No. 322291 Kent Circuit Court QUARAWN RASHAUD CAMP, LC No. 13-009323-FC

Defendant-Appellant.

Before: M ARKEY , P.J., and O WENS and R ONAYNE K RAUSE , JJ.

P ER C URIAM

. Defendant appeals by right his j ury trial convictions of assau lt with intent to rob while armed (AWIRA), MCL 750.89; carrying a concealed weapon (CCW), M CL 750.227; and possession of a firearm during t he commission of a felony, MCL 750.227b(1). We affirm.

Detrice Murdaugh and Demarrious Weems lived together in a hous e in Kentwood, Michigan. On July 20, 2013, Murdaugh’s brother, Demari Brown, visited them at that house. Murdaugh, Weems, and Brown planne d to go to a barbeque together . Before they left, defendant sent Murdaugh a text message asking to purchase marijuana from him. Murdaugh agreed to the sale and waited for defendant to arrive. After waiting a while , Murdaugh, Weems, and Brown got into Murdaugh’s automobile, and Murdaugh began to drive to the barbeque. Shortly after leaving, they saw defendant wal king toward the house, so Murdau gh turned around and returned to meet him. Murdaugh got out of the automobile and went into the house. Weems and Brown remained in the automobile, and defendant spoke with them brief ly. Weems showed defendant a nine-millimeter Kel Tec firearm that he found in the woods near the house of a friend where a shooting had previously occurred. Defendant then went inside t he house while Weems and Brown stayed in the automobile.

Murdaugh testified that he showed defendant the marijuana for sale; defendant then indicated that he did not have money and asked to have the mari juana but pay for it later. Murdaugh did not agree to this, and defendant subsequently poin ted a firearm in his face and said “give me everything.” Mur daugh grabbed defendant and wres tled with him, trying to get the firearm away from him. Murdaugh was shot twice in the ribs and once in the back of his neck. Brown and Weems heard gunshots and shouts for help. Bro wn recognized the shouts as Murdaugh’s. Brown ran from the automobile into the house, and Weems ran to the side of the house. Weems loaded his Kel Tec, waited 30 or 40 seconds, and then went into the house. He-2- testified that he did not bring his Kel Tec into the house beca use he thought that he did not need it. Brown and Weems saw defendant and Murdaugh struggling witheach other for the firearm that defendant had in his hand. Weems hit defendant until defe ndant dropped his firearm, and Weems dragged defendant out onto the sidewalk.

Defendant admitted that he shot Murdaugh, but claimed that he fired in self-defense. Defendant testified that while he was in the house, Murdaugh at tacked him by surprise. They fought with each other for one or two minutes, then Weems, Brow n, and a man with dreadlocks came running into the house. Defendant testified that he saw W eems with a firearm in his hand. Defendant testified that he pulled out his firearm and shot Mur daugh because he was “outnumbered,” and “there couldn’ t be any more one-on-one fight in’ between me and him.”

Defendant first argues that the evidence was insufficient for the jury to find him guilty of AWIRA or felony-firearm. When assessing the sufficiency of the evidence, this Court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could find that all of the essential elements of the crime were proven beyond a reasonable doubt. People v Railer , 288 Mich App 213, 216-217; 792 NW2d 776 (2010). This Court “is required to draw all reasonable inferences and make c redibility choices in support of the jury verdict. The scope of review is the same whether the evidence is direct or circumstantial.” People v Nowack , 462 Mich 392, 400; 614 NW2d 78 (2000). It is for the jury, not this Court, to assess the credibility of witnesses. People v Eisen , 296 Mich App 326, 331; 820 NW2d 229 (2012).

Defendant argues that because the prosecution relied on circum stantial evidence to prove its case, an inference of criminality may be drawn from such ev idence only if it follows as an impelling certainty. This misstates the law: circumstantial e vidence and reasonable inferences drawn from it will support a convi ction if the evidence proves the elements of the offense beyond a reasonable doubt. People v Ericksen , 288 Mich App 192, 196; 793 NW2d 120 (2010).

The elements of AWIRA, MCL 750.89, are as follows: “(1) an as sault with force and violence; (2) an intent to rob or steal; and (3) the defendant’ s being armed.” People v Akins , 259 Mich App 545, 554; 675 NW2d 863 (2003). Proof of this offense requires evidence that the defendant intended to rob or steal. Id

. There was sufficient evidence from which the jury could find that defendant assaulted Murdaugh with force and violence because the circumstances indi cate that defendant, by overt conduct, caused Murdaugh to reasonably believe that defendant w ould do what he threatened, i.e., shoot him. See People v Reeves , 458 Mich 236, 244; 580 NW2d 433 (1998) (noting that an assault is established when the victim reasonably apprehends animminent battery). Murdaugh testified that defendant pointed a firearm in his face and said “give me everything.” Brown and Weems testified that they heard yells for help, heard gun shots , and saw defendant and Murdaugh wrestling with each other. There is no dispute that d efendant pointed a gun at Murdaugh and shot him. There was also sufficient evidence for the jury to find that defendant intended to rob or steal from Mu rdaugh because he told Murdaugh to give him “everything” after Murdaugh showed defendant marijuana and defendant asked for mar ijuana without paying at that time. This supports that defendant intended to rob Murdaugh or steal his property, permanently depriving him of it. People v King , 210 Mich App 425, 428; 534 NW2d 534 (1995).-3- Defendant nevertheless argues that the evidence was insufficie nt to find that defendant intended to rob or steal because Murdaugh testified that he did not know what exactly defendant wanted when he said “give me everything.” “Minimal circumstant ial evidence is sufficient to prove an actor’s state of mind.” People v Ortiz , 249 Mich App 297, 301; 642 NW2d 417 (2001). When viewed in a light most favorable to the prosecution, Railer , 288 Mich App at 216, evidence that defendant pointed afirearm at Murdaugh and said “give me everything” after asking for marijuana was sufficient to allow the jury to find t hat defendant intended to steal or permanently deprive Murdaugh of his property, King , 210 Mich App at 428. Moreover, there is no dispute that defendant was arm ed during the incident. Thus, the evidence was sufficient for the jury to find all the essentia l elements of AWIRA were prove d beyond a reasonable doubt.

“The elements of felony-firearm are that the defendant possess ed a firearm during the commission or attempt to commit a felony.” People v Davis , 216 Mich App 47, 53; 549 NW2d 1 (1996). There is no dispute that defendant carried and had i n his possession a firearm during the incident. Because the evidence was sufficient to find defe ndant guilty of AWIRA, which is a felony not excluded under MCL 750.227b(1), we conclude that the re was sufficient evidence to find defendant guilty of felony-firearm. Id. ; Railer , 288 Mich App at 217.

Defendant argues that the evide nce is insufficient because def endant did not admit to committing the crimes, and there was no scientific evidence sug gesting guilt. There is no requirement that a defendant admit to a crime to be convicted o f it, and there is no requirement for scientific evidence. Defendant also discusses at length inhis brief on appeal various reasons why the testimony of Murdaugh, Weems, and Brown was not credibl e, and numerous alternative scenarios—all suggesting defenda nt’s innocence—that could be in ferred from the evidence. But, it is for the jury, not this Court, to assess the credibility o f witnesses. Eisen , 296 Mich App at 331. “[I]f evidence is relevant a nd admissible, it does not ma tter that the evidence gives rise to multiple inferences or that an inference gives rise to further inferences.” People v Hardiman
, 466 Mich 417, 428; 646 NW2d 158 (2002). And, “the prosecution is only required to produce sufficient evidence to establish guilt; it is not required to n egate every reasonable theory consistent with a defendant’s innocence.” Id. at 430.

Defendant next argues that the trial court abused its discreti on in admitting photographs of Murdaugh’s wounds. Photographs are generally admissible as long as they are relevant, MRE 401, and not unfairly prejudicial, MRE 403. People v Gayheart , 285 Mich App 202, 227; 776 NW2d 330 (2009). “Photographs may properly be used to corrobor ate other evidence and are not excludable simply because they are cumulative of a witness’ s oral testimony.” Id. In this case, the prosecution introduce d six photographs of Murdaugh’s wounds. They depict Murdaugh unconscious and are not overly gruesome. The photographs are r elevant because they helped prove the first and third elements of AWIRA—specifically, that defendant assaulted Murdaugh and that defendant was armed. Akins , 259 Mich App at 554. They also helped to prove the felony-firearm charge because they showed that defendant most l ikely possessed or carried a firearm while committing AWIRA. For the same reason, the photo graphs were relevant to prove the CCW charge. MCL 750.227(2). Moreover, the probative value of the photographs was not “substantially outweighed by the danger of unfair prejudice . . . .” MRE 403. Therefore, the trial court did not abuse its discretion in admitting them. Gayheart , 285 Mich App at 228.-4- Defendant next alleges numerous instances of prosecutorial mis conduct. First, he argues that the prosecution committed misconduct by introducing the ph otographs of Murdaugh’s injuries. The test to determine if alleged prosecutorial misco nduct requires reversal is whether, viewed in context, the conduct denied defendant a fair and impartial trial. People v Dobek , 274 Mich App 58, 63-64; 732 NW2d 546 (2007). “The prosecution has wide latitude in arguing the facts and reasonable inferences, and need not confine argument to the blandest possible terms.” Id . at 66. Furthermore, a “prosecutor is entitled to attempt to introduce evidence that he legitimately believes will be accepted by the court, as long as that attempt does not prejudice the defendant.” People v Noble , 238 Mich App 647, 660-661; 608 NW2d 123 (1999). In this case

, the prosecution acted in good faith in presenting relevant evid ence, so there is no prosecutorial misconduct

. Defendant’s argument that the prosecution improperly appealed to the jury’s sympathy by introducing the photographs fails because there is no indication that the prosecution made any appeal to the jury’s sympathy in introducing them. De fendant has not shown that the prosecution committed misconduct with regard to introducing the photographs into evidence.

Second, defendant argues that the prosecution committed miscon duct when it argued that Murdaugh was threatened in the courtroom. Specifically, in its closing argument, the prosecution argued that Murdaugh was threatened outside the doo r of the courtroom before he testified in this case. In making this argument, the prosecuti on was referring to the following exchange that occurred at the b eginning of the prosecution’s di rect examination of Murdaugh:

Q . Who was that out in the e ntryway between the two doors?

A . I don’t know.

Q . Who?

A . I said I don’t know his name.

Q . Do you know if he’s relat ed to the defendant?

A . I don’t know. They look alike.

Q . What did he say to you? Call you a snitch ?

A . Yeah. I ain’t hear the words.

Q . What did he say to you?

A . I ain’t hear the words.

Although a prosecutor may not mischaracterize the evidence pre sented, the prosecutor has wide latitude in arguing reasonable inferences from the evi dence. Dobek , 274 Mich App at 66; People v Watson , 245 Mich App 572, 588; 629 NW2d 411 (2001). Clearly, Murdaug h did not testify that he was threatened. Nevertheless, it could rea sonably be inferred the entryway comment contained a veiled threat such that it cannot be conclu ded that plain error occurred. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999). Moreover, even i f plain error occurred, there is no indication that this comment affected “th e outcome of the lower court-5- proceedings.” Id. As discussed already, substantial evidence supported defendan t’s convictions of AWIRA, CCW, and felony-firear m. Moreover, the trial court p roperly instructed the jury to consider only properly admitted evidence and that the attorneys ’ argument were not evidence. “Jurors are presumed to follow their instructions, and instruct ions are presumed to cure most errors.” People v Abraham , 256 Mich App 265, 279; 662 NW2d 836 (2003). Consequently, if error occurred, it does not warrant reversal. Carines , 460 Mich at 763. For the same reasons, defendant’s arguments that misconduct occurred because the evid ence was inadmissible must fail. Id .; Noble , 238 Mich App at 660-661.

Third, defendant argues that the prosecution committed miscond uct when it argued that defendant had a self-serving memory. There is, however, abunda nt evidence in the record from which the prosecution could reas onably infer that defendant’s m emory was self-serving. The prosecutor has wide latitude in arguing reasonable inferences f rom the evidence. Dobek , 274 Mich App at 66; Watson , 245 Mich App at 588. No error occurred.

Fourth, defendant argues that the prosecution committed miscon duct when it argued that this case was a matter of three witnesses testifying that event s happened one way, and one witness testifying that events happened another way, which was not a fact in evidence. This argument is utterly without merit. The record is replete with testimony from Brown, Weems, and Murdaugh directly contradict ing defendant’s testimony. Def endant has failed to establish plain error in this regard. Watson , 245 Mich App at 588; Carines , 460 Mich at 763-764.

Fifth, defendant argues that the prosecution committed miscondu ct when it improperly appealed to jurors’ “civic duty” by telling them that the case needed to be resolved in the courtroom rather than in the streets. A prosecutor may not adv ocate that it is the jury’s civic duty to convict a defendant. People v Ackerman , 257 Mich App 434, 452; 669 NW2d 818 (2003). A prosecutor’s comments must be viewed in context and evaluated in light of “the relationship they bear to the evidence admitted at trial.” Id

. Murdaugh admitted in testimony that he did not want to testify and was only doing so at the behest of his probation o fficer. Although there is no dire ct evidence that Murdaugh wanted to inflict violence to settle the case, we conclude that the ch allenged argument by the prosecutor was a reasonable inference from the evidence at trial that Murd augh, Weems, Brown, and defendant lived in a community where drugs, firearms, and viole nce were prevalent. Therefore, “the prosecutor’s remarks were not a call to convict as a matte r of civic duty, but rather, argument based on the evidence and reasonable inferences” from the evidence presented at trial. Ackerman , 257 Mich App at 454. The pros ecution was not “encouraging jurors to suspend their powers of judgment.” People v Thomas , 260 Mich App 450, 455-456; 678 NW2d 631 (2004). Rather, the prosecution’s “remarks fell within the boundaries r egarding the proper use of emotional language in prosecutorial argument, and did not deny defendant a fair trial[.]” Ackerman , 257 Mich App at 454. Moreover, even if improper, the comment s did not affect the outcome so would not warrant reversal. Id . at 448-449; Abraham , 256 Mich App at 279.

Sixth, defendant argues that the prosecution committed miscondu ct when it asked defendant his opinion regarding the truthfulness of Murdaugh’s testimony. It is generally improper for a witness to comment or provide an opinion on the credibility of another witness because the jury determines the credibility of witnesses. Dobek , 274 Mich App at 71. But-6- defendant fails to cite any instance where the prosecution aske d him to comment on the credibility of any witness; therefore, he has not established p lain error, and he has not shown that the prosecutor’s conduct denied him a fair trial. Dobek , 274 Mich App at 63-64. Further, defendant’s argument that the trial court interfered with the j ury’s role as factfinder is abandoned. People v Payne , 285 Mich App 181, 188; 774 NW2d 714 (2009).

Defendant next argues that his trial counsel was ineffective fo r failing to object to the prosecution’s errors. “To prevail on a claim of ineffective as sistance, a defendant must, at a minimum, show that (1) counsel’s performance was below an objec tive standard of reasonableness and (2) a reasonable probability that the outcom e of the proceeding would have been different but for trial counsel’s errors.” Ackerman , 257 Mich App at 455.

Defendant failed to identify the remarks that he believes couns el was ineffective for failing to object to, and has thus abandoned the issue. People v Kevorkian , 248 Mich App 373, 389; 639 NW2d 291 (2001). To the extent that defendant argues that counsel was ineffective for failing to object to the pros ecution’s conduct discussed supra , this argument fails. Defendant has established no errors of counsel and certainly none for which a reasonable probability exists that the outcome of the proceeding would have been different. Ackerman , 257 Mich App at 455. First, defendant has not overcom e the presumption that counsel’ s failure to object was reasonable trial strategy. People v Matuszak , 263 Mich App 42, 58; 687 NW2d 342 (2004). Second, as discussed already, an objection by counsel to the prosecution’s remarks would have been futile because they were not improper, and “[c]ounsel is not ineffecti ve for failing to make a futile objection.” Thomas , 260 Mich App at 457.

Finally, we find without merit defendant’s argument that counse l was ineffective for failing to call an expert witness to testify that defendant’s m emory problems could have resulted from the beating defendant received from Weems and Brown. Agai n, defendant has failed to overcome the presumption that this was trial strategy. Payne , 285 Mich App at 190. More importantly, defendant has not established the factual predicat e of his claim. Ackerman , 257 Mich App at 455. In sum, defendant has not shown that counsel’ s performance fell below an objective standard of reasonableness. Id

.
We affirm.

/s/ Jane E. Markey /s/ Donald S. Owens /s/ Amy Ronayne Krause