STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     January 19, 2017
               Plaintiff-Appellee,

v                                                                    No. 329704
                                                                     Saginaw Circuit Court
ARTHUR LEE WILLIAMS,                                                 LC No. 15-041096-FC

               Defendant-Appellant.


Before: O’CONNELL, P.J., and MARKEY and MURRAY, JJ.

PER CURIAM.

        Defendant appeals by right from his convictions following a jury trial of assault with
intent to do great bodily harm less than murder, MCL 750.84, carrying a deadly weapon with
unlawful intent, MCL 750.226, felon in possession of a firearm, MCL 750.224f, and three counts
of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.
The trial court sentenced defendant as a fourth habitual offender, MCL 769.12, to serve
concurrent terms of imprisonment of 10 to 20 years each for the assault, armed with unlawful
intent, and felon in possession convictions, to be served consecutively to concurrent terms of two
years for each of the associated felony-firearm convictions. We affirm.

        This case arises out of the shooting of Demarcus Williams at a Speedway gas station.
Aaron Smith testified that he, Demarcus Williams, and two other men were at the gas station
between 1:30 and 2:00 a.m. the day of the shooting. Christopher Macon testified that he arrived
at the gas station around 1:30 a.m. Macon testified he became involved in an “altercation” with
someone and was “jumped” by several people; a fight ensued. Reginald Grady, who drove
Macon to the gas station, testified that that during the fight he saw a person in a black hoodie and
shorts point at someone and yell, “Somebody got a gun.” Macon testified that he saw defendant
at the gas station before the fight started and that he was wearing white shorts and a “black
hoodie” and had what “looked like a gun” in the pocket of the hoodie. According to Smith, as he
was talking to a girl and pumping gasoline for her, he heard several people yelling, followed by
gunshots. Demarcus Williams testified that he remembered being shot twice in the leg and
grazed on the arm, but that he did not recall precisely when that happened.

       Defendant’s sole argument on appeal is that the trial court denied him his rights to due
process and a jury trial by denying his request to instruct the jury on self-defense. The court

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explained its reasoning for denying to instruct the jury on self-defense as follows: “Well, my
position is that, yes, a felon in possession of a firearm can assert self-defense, but I don’t think
the evidence in this case sufficiently establishes the elements necessary for it and I’ll deny the
motion.” This Court generally reviews de novo a claim of instructional error, but “the trial
court’s determination that a jury instruction is applicable to the facts of the case is reviewed for
an abuse of discretion.” People v Dobek, 274 Mich. App. 58, 82; 732 NW2d 546 (2007). “The
trial court abuses its discretion when its decision falls outside the range of principled outcomes
or when it erroneously interprets or applies the law.” People v Lane, 308 Mich. App. 38, 51; 862
NW2d 446 (2014).

       MCL 780.972 governs whether an individual may raise a claim of self-defense:
               (1) An individual who has not or is not engaged in the commission of a
       crime at the time he or she uses deadly force may use deadly force against another
       individual anywhere he or she has the legal right to be with no duty to retreat if
       either of the following applies:

               (a) The individual honestly and reasonably believes that the use of deadly
       force is necessary to prevent the imminent death of or imminent great bodily harm
       to himself or herself or to another individual.

               (b) The individual honestly and reasonably believes that the use of deadly
       force is necessary to prevent the imminent sexual assault of himself or herself or
       of another individual.

              (2) An individual who has not or is not engaged in the commission of a
       crime at the time he or she uses force other than deadly force may use force other
       than deadly force against another individual anywhere he or she has the legal right
       to be with no duty to retreat if he or she honestly and reasonably believes that the
       use of that force is necessary to defend himself or herself or another individual
       from the imminent unlawful use of force by another individual.

        In this case, defendant stipulated to being a felon ineligible to possess a firearm;
therefore, he was “engaged in the commission of a crime at the time he or she use[d] deadly
force.” MCL 780.972(1).
        But as the trial court recognized, felons not allowed generally to possess firearms may
assert self-defense where there is evidence that would “allow a jury to conclude that criminal
possession of a firearm was justified because the accused had an honest and reasonable belief
that the use of deadly force was necessary to prevent imminent death, great bodily harm, or
sexual assault to himself or herself or to another.” People v Guajardo, 300 Mich. App. 26, 40;
832 NW2d 409 (2013). In Guajardo, this Court explained the relationship between the felon and
possession of a weapon for this purpose:
              We note that the temporal relationship between the time the accused came
       into possession of the firearm and the time he or she deployed deadly force is




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       relevant to determining whether the accused had an honest and reasonable belief
       that possession of a firearm was justified to prevent imminent death, great bodily
       harm, or sexual assault. . . . Thus, both the amount of time an accused possessed
       a firearm and the manner in which an accused came into possession of the firearm
       can be part of a totality-of-the-circumstances inquiry into whether there is
       evidence that a felon’s possession of a firearm was justified because the felon
       honestly and reasonably believed that the use of deadly force was necessary to
       prevent imminent death, great bodily harm, or sexual assault. [Id. at 40 n 4.]

       Defendant’s argument fails in two respects. First, defendant possessed the weapon in
advance of its becoming necessary, an act that fails Guajardo’s “amount of time” inquiry.
Macon testified that he saw defendant with what looked like a gun before the fight, and thus
before any threat was apparent in response to which defendant might have had a need to act in
defense of himself or another. And no evidence supported an inference that defendant acquired
the weapon immediately before, or during, the fight. Accordingly, nothing in evidence would
have allowed the jury to conclude that defendant took and maintained possession of a firearm
only for the time necessary to respond to an imminent threat.

       Second, there was no evidence to suggest that defendant’s resort to potentially lethal
force satisfied the legal standard for necessity. “The reasonableness of a person’s belief
regarding the necessity of deadly force depends on what an ordinarily prudent and intelligent
person would do on the basis of the perceptions of the actor.” Id. at 42 (internal quotation marks
and citation omitted). In this case, no witness testified that anyone assaulted defendant.
Although a person who witnessed Macon being struck by several others might reasonably
conclude that he was under a risk of great bodily harm, defendant presented no evidence that he
thought Macon was in any such danger or otherwise fired his gun in hopes of rescuing Macon.
Further, had that been defendant’s concern, he could have taken non-lethal actions, such as
attempting to pull the attackers away from Macon.

       Moreover, one witness testified that defendant told him he shot Demarcus Williams “over
a female.” There might be circumstances were a dispute over a woman could lead to a situation
where a person might reasonably believe that the use of deadly force was necessary. But absent
such evidence (as is the case here), shooting someone “over a female” does not, in and of itself,
implicate self-defense.

       Given the “totality-of-the-circumstances,” it would not be reasonable for a person in
defendant’s position to think that firing a handgun into a group of people at a gas station was
necessary to fend off a severe threat to himself or another. Therefore, the trial court did not




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abuse its discretion when it determined that the evidence did not support a claim of self-defense
and so declined to instruct the jury on it.1

       We affirm.

                                                           /s/ Peter D. O'Connell
                                                           /s/ Jane E. Markey
                                                           /s/ Christopher M. Murray




1
  Defendant grafts onto his argument the assertion that various witnesses lacked credibility, but
does not explain how his credibility attacks bear on the question whether an instruction on self-
defense would have been appropriate. While the credibility of the prosecution’s witnesses may
affect whether the jury finds guilt beyond a reasonable doubt, “[c]redibility is a matter for the
trier of fact to ascertain. [This Court] will not resolve it anew.” People v Vaughn, 186 Mich
App 376, 380; 465 NW2d 365 (1990).


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