If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED September 09, 2026 Plaintiff-Appellee, 8:52 AM
v No. 369675 Kent Circuit Court GENESIS KEVIN XAVIER LEWIS, LC No. 22-007617-FC
Defendant-Appellant.
Before: BOONSTRA, P.J., and YOUNG and KOROBKIN, JJ.
PER CURIAM.
Defendant, Genesis Kevin Xavier Lewis, appeals by right following his jury-trial convictions on one count of second-degree murder, MCL 750.317; three counts of assault with intent to commit murder (AWIM), MCL 750.83; and four of counts of possessing a firearm during the commission of a felony (felony-firearm), MCL 750.227b. On appeal, among other issues, defendant contends that the information was improperly amended during his trial and that the jury was erroneously instructed. For the reasons stated in this opinion, we agree that the jury was improperly instructed, and conclude that the error was not harmless. We therefore vacate defendant’s convictions and remand for a new trial.
I. BACKGROUND AND FACTS
The facts as testified to at defendant’s trial and demonstrated through video evidence presented to the jury are as follows. Following the wedding of Faith and Marcellous Suttles1 on June 5, 2022, the couple and various members of their wedding party, including Richard Caldwell and Marcellus Wilkerson-Allen, continued the celebrations at a nightclub, Ambiance, in Grand Rapids. Defendant and his father, Jerome Lewis, operated a clothing business and also traveled to Ambiance that evening to deliver a clothing order to a security guard at Ambiance. Upon arriving, defendant and Lewis parked their truck in front of Ambiance, delivered the items, and remained outside of their truck to speak with potential customers. Armonie Acklin, a close friend of
1 “Suttles” hereinafter refers only to Marcellous Suttles.
-1- defendant, happened to drive by Ambiance and, noticing defendant and Lewis, circled back to retrieve his own clothing order and remained there to socialize with defendant and Lewis.
After talking with potential customers for about 45 minutes, Lewis noticed a man smoking outside the Ambiance entrance and staring at him and defendant, which Lewis testified “puzzled” him because he did not recognize the individual. Lewis described the atmosphere as one with “no hostility” until the man he saw smoking “made sure” to look at him with his glasses off. Defendant identified the man as a Wilkerson-Allen, a former classmate of his. A verbal argument ensued and turned into a physical fight in which defendant, Lewis, and Acklin fought against Suttles, Caldwell, and Wilkerson-Allen. Defendant explained at trial that he had a valid concealed pistol license on the night of the shooting and that, during the altercation, he retrieved two guns from his truck and returned to the ongoing fight. As shown in the video footage presented at trial, upon his return, defendant fired shots into the melee, and a crime scene technician testified that she found 13 casings on the scene. Caldwell had tackled Lewis while Lewis was fighting Suttles, and defendant stated that his “intended target” was Caldwell in order to “[g]et him away from” Lewis. Defendant testified that he was not shooting to kill, but that he was shooting to seriously hurt someone and understood that there were consequences of shooting 13 rounds into a crowd of people. The shooting resulted in Acklin’s death and injuries to Suttles, Caldwell, and Wilkerson-Allen.
Defendant was charged in June 2022 with one count of second-degree murder, three counts of AWIM, and one count of felony-firearm in connection with the second-degree murder charge. Defendant proceeded to trial by jury in October 2023, and the defense’s main argument was that defendant’s actions were justified in defense of Lewis. The prosecution requested at the close of its case-in-chief that the information be amended to add three felony-firearm counts for each of the AWIM charges “to conform with the proofs that ha[d] been presented,” which the trial court allowed. The trial court instructed the jury on second-degree murder, AWIM, felony-firearm, involuntary manslaughter, and transferred intent, among other instructions, but declined defense counsel’s request that the jury be provided a mitigating-circumstances instruction, M Crim JI 17.4. The jury ultimately found defendant guilty on all charges, and defendant was later sentenced to concurrent two-year sentences for the felony-firearm convictions, followed by concurrent sentences of 28 to 90 years’ imprisonment for the second-degree murder conviction and 18 to 70 years’ imprisonment for each AWIM conviction.
Defendant now appeals.
II. ANALYSIS
A. AMENDMENT OF INFORMATION
Defendant first contends that he was deprived of due process when the trial court allowed the prosecution to amend the information during trial to add three felony-firearm counts. We disagree.
This Court reviews a trial court’s decision to grant a motion to amend an information for an abuse of discretion. People v McGee, 258 Mich App 683, 686-687; 672 NW2d 191 (2003). “The trial court abuses its discretion when its decision falls outside the range of principled outcomes.” People v Perry, 317 Mich App 589, 594; 895 NW2d 216 (2016). We review de novo,
-2- however, constitutional questions, People v Darden, 230 Mich App 597, 600; 585 NW2d 27 (1998), and the interpretation of court rules and statutes, McGee, 258 Mich App at 686.
Our court rules give trial courts discretion to, “before, during, or after trial[,] . . . permit the prosecut[ion] to amend the information . . . unless the proposed amendment would unfairly surprise or prejudice the defendant.” MCR 6.112(H). As we have explained, a trial court is authorized to allow the prosecution to amend an information only “if amendment would not cause ‘unacceptable prejudice to the defendant because of unfair surprise, inadequate notice, or insufficient opportunity to defend.’ ” People v Carlton, 313 Mich App 339, 353; 880 NW2d 803 (2015), quoting People v Hunt, 442 Mich 359, 364; 501 NW2d 151 (1993). “No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, . . . are among the constitutional rights of every” criminal defendant. Cole v Arkansas, 333 US 196, 201; 68 S Ct 514; 92 L Ed 644 (1948); see also Darden, 230 Mich App at 601 (“Lack of adequate notice violates a defendant’s right to due process . . . .”). Thus, MCR 6.112(H) must “give[] effect to a defendant’s right to know and respond to the charges against him.” Darden, 230 Mich App at 601.
We are unpersuaded that defendant was deprived of due process as a result of inadequate notice of the charges against him. See Darden, 230 Mich App at 603; Carlton, 313 Mich App at 353. As we have described, the information initially charged defendant with only one felony- firearm count, in connection with his second-degree murder charge. The trial court permitted the information to be amended to add three felony-firearm counts for each of the AWIM charges pursuant to the prosecution’s request after the close of its case-in-chief. To convict defendant of those three additional counts, the jury would need to find beyond a reasonable doubt that defendant committed AWIM and that he possessed a firearm while doing so. See People v Jackson, ___ Mich App ___, ___; ___ NW3d ___ (2024) (Docket No. 366078); slip op at 4. And to in turn secure those additional convictions, the prosecution would thus largely emphasize the same facts as those relied upon in the prosecution’s attempt to secure AWIM convictions, the only difference being the possession of a firearm in committing the assaults.
Further, the prosecution focused throughout its case-in-chief on defendant’s alleged intent to kill via the use of a firearm, presumably both because defendant’s AWIM charges arose out the use of a firearm and because defendant was already charged with a felony-firearm count in connection with the second-degree murder charge. Given defendant’s awareness throughout trial that the prosecution’s theory was that he committed AWIM using a firearm and that he was charged with a felony-firearm count in connection with a second-degree murder charge that arose out of the same incident as the AWIM charges, defendant cannot be considered to have been unfairly surprised or given an inadequate opportunity to defend against the additional felony-firearm counts. Cf. McGee, 258 Mich App at 691 (finding record support for the defendant’s claim of surprise regarding an offense added during trial when the charged offenses had “clearly differ[ing]” elements and “might require preparation of a different defense strategy”). The three felony-firearm counts concerned the same conduct underlying the AWIM charges and were alleged to have occurred at the same date and time, at the same location, and with the same witnesses and victims—in short, there was one shooting “incident,” and four people were shot. Defendant thus had an opportunity to defend against these additional charges via his examination of witnesses and presentation of evidence on the same underlying facts. Cf. People v Adams, 202 Mich App 385, 390-391; 509 NW2d 530 (1993) (concluding that notice of an additional charge
-3- was inadequate when the charged crimes were “not particularly similar in their elements” and the facts to be emphasized at trial for the crimes “significantly differe[d]”). Indeed, defendant fails to articulate how earlier notice would have in any way changed his actions, strategy, or theory during trial. See McGee, 258 Mich App at 693 (concluding that a trial court did not abuse its discretion in allowing an amendment to the information when the defendant failed to explain “how added time to prepare . . . would have benefited the defense”).
We thus conclude that the trial court did not abuse its discretion in permitting the amendment of the information to add three felony-firearm counts during trial, see id. at 686-687, and that defendant was not deprived of due process as a result of this amendment, see Darden, 230 Mich App at 601, 603.
B. JURY INSTRUCTIONS
In defendant’s supplemental brief filed in propria persona, otherwise known as a “Standard 4” brief,2 defendant contends that he should receive a new trial due to various jury-instruction errors. We agree. The trial court erred in declining to provide a mitigating-circumstances instruction, and correspondingly a voluntary-manslaughter instruction. These errors were not harmless, so a new trial is required.
This Court reviews claims of instructional error de novo. People v Rosa, 322 Mich App 726, 738 n 6; 913 NW2d 392 (2018). In doing so, we consider the jury “instructions as a whole, rather than piecemeal, to determine whether any error occurred.” People v Joesel, 36 NW3d 293, 297 (Mich, 2026).3 We review for an abuse of discretion, however, a trial court’s determination of whether a jury instruction applies to the facts of the case. People v Mitchell, 301 Mich App 282, 286; 835 NW2d 615 (2013). Reversal on the basis of an instructional error is warranted when “after an examination of the entire cause, it shall affirmatively appear that it is more probable than not that the error was outcome determinative.” Id. (quotation marks and citation omitted).
“A criminal defendant is entitled to have a properly instructed jury consider the evidence against him.” People v Czuprysnki, 325 Mich App 449, 456; 926 NW2d 282 (2018) (quotation marks and citation omitted). “A court must properly instruct the jury so that it may correctly and intelligently decide the case.” People v Clark, 453 Mich 572, 583; 556 NW2d 820 (1996). Jury instructions must thus “include all elements of the charged offenses and any material issues, defenses, and theories if there is evidence to support them.” Czuprysnki, 325 Mich App at 456. Moreover, “MCR 2.512(D)(2) requires that that the jury be instructed using the Michigan Model Criminal Jury Instructions if ‘(a) they are applicable, (b) they accurately state the applicable law, and (c) they are requested by a party.’ ” Rosa, 322 Mich App at 739. And, relevant for our purposes, our Supreme Court has mandated that when a “lesser offense is necessarily included in the greater offense, meaning, all the elements of the lesser offense are included in the greater
2 See Administrative Order No. 2004-6, 471 Mich c, cii (2004). 3 “An order of th[e] [Supreme] Court is binding precedent if it constitutes a final disposition of an application and contains a concise statement of the applicable facts and reasons for the decision.” DeFrain v State Farm Mut Auto Ins Co, 491 Mich 359, 369; 817 NW2d 504 (2012).
-4- offense, and a rational view of the evidence would support such an instruction[,]” an inferior- offense instruction is appropriate. People v Mendoza, 468 Mich 527, 533; 664 NW2d 685 (2003), citing People v Cornell, 466 Mich 335, 357; 646 NW2d 127 (2002).
In analyzing defendant’s challenges to the jury instructions provided at his trial, we recall that the jury was instructed on the charged offenses—second-degree murder, AWIM, and felony- firearm—in addition to involuntary manslaughter as a lesser-included offense of second-degree murder, among other instructions. The second-degree murder charge related to Acklin’s death, and the AWIM charges related to the injuries to Suttles, Caldwell, and Wilkerson-Allen.
1. MITIGATING CIRCUMSTANCES
We first consider the propriety of the mitigating-circumstances instruction requested by defendant at trial. The elements of AWIM “are: (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder.” People v Brown, 267 Mich App 141, 147; 703 NW2d 230 (2005) (quotation marks and citation omitted). An AWIM conviction thus requires the jury to conclude beyond a reasonable doubt that the defendant committed an assault with “the specific intent to kill.” Id. at 149. But “if a defendant would have been guilty of manslaughter” rather than murder “had the assault resulted in death (due to an absence of malice), there can be no conviction of [AWIM].” People v Lipps, 167 Mich App 99, 106; 421 NW2d 586 (1988). A mitigating-circumstances instruction should therefore be given if a jury could find that “the assault took place under circumstances that would have reduced the charge to manslaughter if the person had died.” M Crim JI 17.4.4 That is, a mitigating-circumstances instruction is proper when a
4 M Crim JI 17.4 provides in full:
(1) The defendant can only be guilty of the crime of assault with intent to commit murder if [he / she] would have been guilty of murder had the person [he / she] assaulted actually died. If the assault took place under circumstances that would have reduced the charge to manslaughter if the person had died, the defendant is not guilty of assault with intent to commit murder.
(2) Voluntary manslaughter is different from murder in that for manslaughter, the following things must be true:
(3) First, when the defendant acted, [his / her] thinking must have been disturbed by emotional excitement to the point that an ordinary person might have acted on impulse, without thinking twice, from passion instead of judgment. This emotional excitement must have been caused by something that would cause an ordinary person to act rashly or on impulse. The law does not say what things are enough to do this. That is for you to decide. . . .
(4) Second, the killing itself must have resulted from this emotional excitement. The defendant must have acted before a reasonable time had passed to calm down and before reason took over again. The law does not say how much time is needed.
-5- defendant is charged with AWIM and there is “evidence [(1)] that [the] defendant acted in the heat of passion, [(2)] which was caused by something that would create such a state in an ordinary person[,] Rosa, 322 Mich App at 740, (3) that the assault at issue resulted from this “emotional excitement,” and (4) that the defendant acted before a reasonable amount of time had passed to allow the defendant to calm down. M Crim JI 17.4.
The principles underlying the mitigating-circumstances instruction flow from our state’s voluntary-manslaughter jurisprudence. See Rosa, 322 Mich App at 740, citing People v Pouncey, 437 Mich 382; 471 NW2d 346 (1991); Lipps, 167 Mich App at 106, citing Maher v People, 10 Mich 212, 218-219 (1862). As our Supreme Court recently explained in reversing for failure to give a voluntary-manslaughter instruction, “[a] ‘heat of passion’ killing is one that occurs as a result of ‘temporary excitement, by which the control of reason was disturbed.’ ” Joesel, 36 NW3d at 298, quoting Maher, 10 Mich at 219. There is no “ ‘requisite emotional state’ to establish responding in the heat of passion,” but the voluntary-manslaughter “ ‘model jury instruction specifically acknowledges anger as an emotional state that may serve to mitigate murder to voluntary manslaughter.’ ” Joesel, 36 NW3d at 298, quoting People v Yeager, 511 Mich 478, 492- 493; 999 NW2d 490 (2023). Moreover, whether “provocation was adequate is a question of fact” and “[i]t is sufficient that reason is disturbed or obscured by passion to an extent which might render ordinary people, of fair average disposition, liable to act rashly or without due deliberation or reflection.” Joesel, 36 NW3d at 298 (cleaned up).
The evidence presented at defendant’s trial supported the requested mitigating- circumstances jury instruction for defendant’s three AWIM charges. See Rosa, 322 Mich App at 739; Czuprysnki, 325 Mich App at 456. Defendant’s AWIM charges were premised on the injuries he was alleged to have inflicted on Suttles, Caldwell, and Wilkerson-Allen by shooting into the area in which they were fighting with Lewis and Acklin. At trial, the jury was presented video evidence showing defendant, Lewis, and Acklin fighting against Suttles, Caldwell, and Wilkerson-Allen. When defendant momentarily left the altercation to retrieve his guns from his truck, the fighting remained ongoing, and by the time defendant was shown to have shot his weapon, Lewis had been tackled by Caldwell. Acklin’s girlfriend, Angelica Enriquez, who was near defendant’s truck and uninvolved in the fighting, testified that she approached defendant as he returned to the truck during the fight to make sure he was okay. Enriquez stated that when she asked defendant “if he was fine,” defendant was not listening to what she had to say and that he “continued to walk to the truck, opened up the truck[,] and then grabbed the two guns.” Enriquez further explained that she “told him not to,” and “was trying to hold him back” but defendant “just pushed [her] back and kept going.” Enriquez described defendant’s demeanor when he came back
That is for you to decide. The test is whether a reasonable time passed under the circumstances of this case.
(5) If you find that the crime would have been manslaughter had the person died, then you must find the defendant not guilty of assault with intent to murder [and decide whether (he / she) is guilty of any lesser offense.]
M Crim JI 17.4 explains that the bracketed material at the end of this instruction should only be used when the trial court is instructing on lesser-included offenses.
-6- to the truck as “[j]ust very angry.” Defendant’s testimony corroborated this account, as he explained that he was angry when Wilkerson-Allen threatened him and that when he saw “what was happening to” Lewis, he was focused on “doing something about it immediately.” Defendant agreed with Enriquez’s testimony that defendant was “extremely angry when [he] came back to the truck and picked up the” guns. Defendant further stated that as he approached the fight with his weapons, he “was angry” and that when he was firing his gun, he was “emotionally involved because [he] had just seen” what Lewis was “going through.”
This testimony and video footage constitutes evidence from which a jury could have found that defendant acted in the heat of passion, caused by an adequate provocation, that the alleged assaults of Suttles, Caldwell, and Wilkerson-Allen resulted from this emotional excitement, and that the defendant acted before a reasonable amount of time had passed to allow the defendant to calm down. See M Crim JI 17.4; Rosa, 322 Mich App at 740. First, defendant’s and Enriquez’s testimonies indicate that defendant acted in a spit of anger as a result of the fighting in which he was involved and specifically due to the attacks upon his father, Lewis, such that his reason was disturbed to the extent that defendant was not hearing Enriquez’s pleas to “not to,” and that he remained “emotionally involved” as he was firing his weapon. There is thus evidence supporting a finding that defendant acted in the heat of passion. Cf. Rosa, 322 Mich App at 731, 740 (finding a mitigating-circumstances instruction unwarranted when the defendant was “calm” when he entered the victim’s room before strangling her).
Second, in light of defendant’s heightened emotions and the ongoing physical altercation in which defendant, Lewis, and Acklin were involved, a jury could have found that these circumstances are those in which “ordinary people, of fair average disposition,” may be “liable to act rashly or without due deliberation or reflection.” Joesel, 36 NW3d at 298 (cleaned up). Indeed, “[j]urors are ‘much better qualified to judge . . . the sufficiency and tendency of a given provocation’ ” and “there are myriad examples in Michigan caselaw where a physical altercation has been deemed adequate provocation . . . .” Id. at 298-299, quoting Maher, 10 Mich at 222. Thus, there was evidence of adequate provocation.
Third, the evidence was sufficient to support a finding by a jury that defendant responded to the ongoing fighting with intense emotions of fear for Lewis and anger, and that defendant’s shooting of the victims resulted from this provocation and resulting emotional excitement. See Joesel, 36 NW3d at 298; Mitchell, 301 Mich App at 286; People v Holmes, 111 Mich 364, 367- 369; 69 NW 501 (1896) (concluding that there was sufficient evidence of provocation to warrant a voluntary-manslaughter instruction when the victim punched the defendant multiple times, and the defendant then left the scene of the altercation to retrieve his weapon and shot the victim upon his return). Thus, the jury could have found that the assault at issue resulted from the “emotional excitement.” M Crim JI 17.4.
Finally, given the evidence we have described, we cannot “conclude as a matter of law that defendant had sufficient time to control his passions such that the issue was properly withheld from jury consideration.” Joesel, 36 NW3d at 300; see also Holmes, 111 Mich at 367-369. Specifically, the video evidence showed that the physical altercation was ongoing when defendant both went to retrieve his weapons and when he fired the shots. The jury therefore could have found inadequate cooling-off time. Joesel, 36 NW3d at 300.
-7- Again, “MCR 2.512(D)(2) requires that that the jury be instructed using the Michigan Model Criminal Jury Instructions if ‘(a) they are applicable, (b) they accurately state the applicable law, and (c) they are requested by a party.’ ” Rosa, 322 Mich App at 739. For the reasons discussed, the mitigating-circumstances instruction requested by defendant was applicable, and the prosecution makes no argument that the instruction inaccurately states the relevant law—nor do we discern any inaccuracy. Therefore, the trial court abused its discretion by refusing to provide this instruction. See id. at 739; Mitchell, 301 Mich App at 286.
2. VOLUNTARY MANSLAUGHTER
Our conclusion that the mitigating-circumstances instruction should have been given logically and necessarily compels our consideration of whether a voluntary-manslaughter instruction should have been provided at defendant’s trial. Although generally, a trial court need not instruct a jury sua sponte on a lesser-included offense, in this case the trial court declined to provide the mitigating-circumstances instruction as to AWIM because a voluntary-manslaughter instruction was not being given in conjunction with defendant’s second-degree murder charge.5 And it is true that these instructions ought to have traveled together in the present case because the circumstances that resulted in the injuries of Suttles, Caldwell, and Wilkerson-Allen and the death of Acklin were the same. Therefore, for the same reason it was error to reject the mitigating- circumstances instruction for the AWIM charge, it was likewise error not to provide a voluntary- manslaughter instruction for the murder charge.6
5 Much of the discussion between counsel and the trial court regarding jury instructions appears to have taken place in chambers and off the record. After the jury had been instructed, the parties then attempted to make a record of what had transpired. In a nutshell, defense counsel had requested the mitigating-circumstances instruction, the prosecution had objected, and the trial court sustained the objection. According to the prosecution, the instruction was improper because it “refers specifically to voluntary manslaughter, that is not an instruction that given to the jury. This jury was given an involuntary manslaughter [instruction].” The trial court agreed, stating, “I think this applies specifically to voluntary manslaughter, and we’re dealing with involuntary manslaughter.” 6 Defendant’s counsel raised the issue of the propriety of a voluntary-manslaughter instruction for the first time at oral argument. Ordinarily, we do not decide issues that are not raised in the parties’ briefs. See People v McGraw, 484 Mich 120, 131 n 36; 771 NW2d 655 (2009). This Court, however, possesses the discretion to review a legal issue not properly raised by the parties. Tingley v Kortz, 262 Mich App 583, 588; 688 NW2d 291 (2004); see also In re Walters, ___ Mich App ___, ___; ___ NW3d ___ (2025) (Docket No. 369318); slip op at 2-3; People v Musico, unpublished per curiam opinion of the Court of Appeals, issued July 20, 2026 (Docket No. 364567), p 4. And before issuing this opinion, following the discussion regarding the propriety of a voluntary-manslaughter instruction at oral argument, we invited supplemental briefing on this issue so that all parties could be adequately heard. People v Lewis, unpublished order of the Court of Appeals, entered August 6, 2026 (Docket No. 369675). Because in this case the failure to provide an involuntary-manslaughter instruction is factually and legally intertwined with the
-8- To explain, the mitigating-circumstances instruction provides that “if the assault took place under circumstances that would have reduced the charge to manslaughter if the person had died,” then “the defendant is not guilty of [AWIM].” M Crim JI 17.4. Thus, when given, the instruction mandates the jury’s consideration of whether, had a victim of a charged AWIM offense died, that death would have resulted from murder or voluntary manslaughter. In the present case, there was no voluntary-manslaughter instruction given for defendant’s charged responsibility for the death of Acklin. But clearly, the circumstances in which that death occurred were the same as those in which the charged assaults against Suttles, Caldwell, and Wilkerson-Allen occurred.7 If there was sufficient evidence to support a jury finding that defendant shot Suttles, Caldwell, and Wilkerson- Allen as the result of provocation and in the heat of passion, there was likewise sufficient evidence to support a jury finding that defendant shot Acklin as the result of provocation and in the heat of passion. Put differently, logic dictates that under these facts, the mitigating-circumstances instruction and voluntary-manslaughter instruction rise or fall together; either both instructions should have been provided, or neither instruction should have been provided.8
Having already examined the evidence supporting a mitigating-circumstances instruction on the AWIM charges, we turn now to consider the propriety of a voluntary-manslaughter instruction for the murder charge. To find defendant guilty of second-degree murder, as the jury was instructed, the prosecution needed to establish the following elements: “(1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse.” People v Goecke, 457 Mich 442, 464; 579 NW2d 868 (1998). “Malice is defined as the intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and wilful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm.” Id. Both involuntary manslaughter,9 on which the jury was instructed, and voluntary manslaughter,
failure to provide a mitigating-circumstances instruction, and because retrial is required, we exercise our discretion under these unique circumstances to decide the issue in the interest of justice. Cf. Equity Funding, Inc v Village of Milford, 342 Mich App 342, 354; 994 NW2d 859 (2022) (“[W]e have authority to . . . address issues we believe necessary to resolve a case.”). 7 The circumstances were so similar that a transferred-intent instruction was given both as to the second-degree and AWIM charges. The principle of transferred intent holds that a defendant may be convicted of an offense against an individual even though the defendant’s actual intent was to commit that offense against another individual. See People v Lovett, 90 Mich App 169, 171; 283 NW2d 357 (1979). There appeared to be no disagreement in the trial court that defendant intended to harm, to a disputed degree, Caldwell and perhaps Suttles and Wilkerson-Allen, but not Acklin, who was fighting alongside defendant and Lewis. 8 This case thus differs from circumstances in which an individual kills and assaults individuals in various locations, at different times, or in diverse other manners. In such an instance, the lack of a voluntary-manslaughter instruction may not logically bear upon whether a mitigating- circumstances instruction should be provided in conjunction with an AWIM instruction. 9 Involuntary manslaughter differs from murder in that “involuntary manslaughter contemplates an unintended result and thus requires something less than an intent to do great bodily harm, an intent to kill, or the wanton and wilful disregard of its natural consequences.” People v Datema,
-9- on which the jury was not instructed, are necessarily included lesser offenses of murder. Mendoza, 468 Mich at 541. The elements of voluntary manslaughter mirror those of murder except that voluntary manslaughter, unlike murder, does not have malice as an element. See id. at 540. Rather, as we described with regards to the mitigating-circumstances instruction, voluntary manslaughter occurs when a defendant kills “in the heat of passion, the passion was caused by adequate provocation, and there was not a lapse of time during which a reasonable person could control his passions.” Mitchell, 301 Mich App at 286 (quotation marks and citation omitted). “[T]he element distinguishing murder from manslaughter—malice—is [thus] negated by the presence of provocation and heat of passion.” Mendoza, 468 Mich at 540. Because voluntary and involuntary manslaughter are necessarily included lesser offenses of murder, our Supreme Court has required that “when a defendant is charged with murder, an instruction for voluntary and involuntary manslaughter must be given if supported by a rational view of the evidence.” Id. at 541.
For the same reason that the mitigating-circumstances instruction was warranted by a rational view of the evidence, so was a voluntary-manslaughter instruction. As we have described, there was evidence that the shooting occurred amidst a physical altercation that defendant, Lewis, and Acklin were involved in, that defendant intended to come to his father’s aid in the fight, and that defendant was angry and “emotionally involved” when shooting the various victims. This evidence could support findings that defendant acted in the heat of passion when shooting, that defendant’s emotions were caused by adequate provocation, and that there was insufficient time for a reasonable person to cool off from this emotional excitement. See Rosa, 322 Mich App at 740; Joesel, 36 NW3d at 298; Mitchell, 301 Mich App at 286. A rational view of the evidence presented at trial thus supported a voluntary-manslaughter instruction. See Yeager, 511 Mich at 491-492, 494 (concluding that a rational view of the evidence would have supported a voluntary- manslaughter instruction when the defendant shot the victim after the victim had physically assaulted the defendant); Mitchell, 301 Mich App at 287-288 (finding a voluntary-manslaughter instruction warranted when there was evidence that the defendant hit the victim with a baseball bat after the victim had struck the defendant with the bat).
Although defendant was charged with second-degree murder and a rational view of the evidence could support a conclusion that defendant killed “in the heat of passion, the passion was caused by adequate provocation, and there was not a lapse of time during which a reasonable person could control his passions[,]” the trial court failed to provide a voluntary-manslaughter instruction. Mitchell, 301 Mich App at 286 (quotation marks and citation omitted). Because a
448 Mich 585, 606; 533 NW2d 272 (1995). Involuntary manslaughter in turn may be distinguished from voluntary manslaughter in that, unlike voluntary manslaughter, “the absence of malice in involuntary manslaughter arises not because of provocation induced passion, but rather because the offender’s mental state is not sufficiently culpable to reach the traditional malice requirements.’ ” Mendoza, 468 Mich at 541, quoting United States v Browner, 889 F2d 549, 553 (CA 5, 1989).
-10- rational view of the evidence supported a voluntary-manslaughter instruction, the trial court erred in failing to provide one. See Mendoza, 468 Mich at 541.10
3. HARMLESS ERROR
We will only reverse for instructional error when we conclude that, “after examin[ing] the entire cause,” it appears “more probable than not that the error was outcome determinative.” Mitchell, 301 Mich App at 286 (quotation marks and citation omitted); see also Joesel, 36 NW3d at 300-302 (applying harmless-error analysis in deciding that reversal was warranted for failure to provide a voluntary-manslaughter instruction). This Court evaluates the impact of instructional errors by considering them “in the context of the untainted evidence to determine whether it is more probable than not that a different outcome would have resulted without the error.” Mitchell, 301 Mich App at 286 (quotation marks and citation omitted).
“[A] failure to instruct on a lesser included offense results in error requiring reversal . . . because it is impossible to know what a jury would do if it had been properly apprised of the lesser included offense.” Yeager, 511 Mich at 503. Our Supreme Court recently explained in Joesel that “[u]nlike in other cases of instructional error where a substantial evidence standard is applied to a disputed factual element, instruction on voluntary manslaughter requires a harmless-error analysis that rests on a legal question regarding the defendant’s required state of mind.” Joesel, 36 NW3d at 300-301 (cleaned up). Thus, “where a rational view of the evidence supports a voluntary- manslaughter instruction, the trial court’s refusal to provide the instruction is not ‘harmless’ because” an appellate court cannot be sure what a jury would have done if it had been properly instructed on this lesser-included offense. Id. at 300, quoting Yeager, 511 Mich at 503.
Applying these principles, we conclude that in this case the failure to provide jury instructions for mitigating circumstances and, correspondingly, voluntary manslaughter, was not harmless. See Mitchell, 301 Mich App at 286. Because the jury was not provided a mitigating- circumstances instruction, it is impossible to know whether the jury would have found that defendant acted under circumstances that would have reduced the charges to manslaughter if Suttles, Caldwell, and Wilkerson-Allen had died. M Crim JI 17.4. If the jury would indeed have found that the circumstances here would have reduced the charges to manslaughter if Suttles, Caldwell, and Wilkerson-Allen had died, id., then the conviction for AWIM was improper, as the requisite element of malice would not be present. Lipps, 167 Mich App at 106. Correspondingly, because the circumstances under which the charged assaults of Suttles, Caldwell, and Wilkerson- Allen occurred were the same as those under which Acklin died, if mitigating circumstances were present to undermine the AWIM convictions, such mitigating circumstances would necessarily reduce defendant’s second-degree murder conviction to voluntary manslaughter. See Joesel, 36
10 We disagree with the prosecution that defendant is not entitled to relief because the issue was not preserved. The trial court was aware that voluntary manslaughter was at issue because defendant had requested the mitigating-circumstances instruction. On the specific facts of this case, where the trial court erred in denying the requested mitigating-circumstances instruction and all charges arose from a single incident as previously described, the failure to instruct the jury on voluntary manslaughter was plain error affecting defendant’s substantial rights. See People v Carines, 460 Mich 750, 769; 597 NW2d 130 (1999).
-11- NW3d at 301-302. Accordingly, the failure to instruct on voluntary manslaughter likewise requires reversal because “it is impossible to know what a jury would do if it had been properly apprised of the lesser included offense.” Yeager, 511 Mich at 503.
Because these jury-instruction errors were not harmless, defendant is entitled to a new trial. Joesel, 36 NW3d at 302; Yeager, 511 Mich at 503.
4. ASSAULT WITH INTENT TO DO GREAT BODILY HARM
Defendant also challenges the lack of an AWIGBH instruction via his complaint that his trial counsel rendered ineffective assistance in failing to request this instruction on the record. To succeed on an ineffective-assistance-of-counsel claim, a defendant must show that his trial counsel’s performance “fell below an objective standard of reasonableness,” in other words, that it was deficient, and that this deficient performance prejudiced the defense. Yeager, 511 Mich at 488 (quotation marks and citation omitted). There is a strong presumption that a trial counsel’s actions constituted reasonable trial strategy. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994). The failure to request a jury instruction may constitute deficient performance. Yeager, 511 Mich at 490; see also, e.g., People v Kilgore, ___ Mich App ___, ___; ___ NW3d ___ (2024) (Docket No. 365881); slip op at 5.
As we have described, the elements of AWIM, on which the jury was instructed, “are: (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder.” Brown, 267 Mich App at 147 (quotation marks and citation omitted). AWIGBH is a necessarily included lesser offense of AWIM, the elements of which “are: (1) an attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an intent to do great bodily harm less than murder.” Id. at 147, 151 (quotation marks and citation omitted). AWIM and AMIGBH thus differ in “the intent required of the actor at the time of the assault.” Id. at 148. More specifically, the specific intent to do great bodily harm as required for an AWIGBH offense “is less than the specific intent to kill necessary to sustain” an AWIM conviction. Id. at 149; see also People v Everett, 318 Mich App 511, 529; 899 NW2d 94 (2017) (“AWIM requires an actual intent to kill that is not a part of AWIGBH.”). Because AWIGBH is a necessarily included lesser offense of AWIM, when a rational view of the evidence supports an AWIGBH charge, an AWIGBH instruction should be provided for a defendant charged with AWIM. See Brown, 267 Mich App at 151-152.
Reviewing video footage of the incident underlying his charges, defendant testified that he shot at Caldwell because he was “seeing [his] dad attempted to be stomped to the ground” and answered affirmatively when asked if he was trying to hurt someone seriously. Defendant clarified that he was “not shooting to kill” and that his “intentions were not to murder anybody.” Evidence we detailed with respect to the mitigating-circumstances and voluntary-manslaughter instructions would also support allowing a jury to find that defendant intended only to seriously injure a victim rather than to kill. This view of the evidence would in turn support a conclusion that defendant was guilty of AWIGBH but not AWIM. See id. at 147. Therefore, an AWIGBH instruction would have been proper in light of the evidence presented at trial. See Czuprysnki, 325 Mich App at 456; Rosa, 322 Mich App at 739.
-12- But we cannot say that defendant’s counsel performed deficiently on the record before us given the limited evidentiary development of this claim. See People v Collins, 298 Mich App 458, 468 n 5; 828 NW2d 392 (2012) (explaining that in reviewing unpreserved ineffective-assistance- of-counsel claims, our review is limited to the facts on the record before us). That is, although the evidence would have supported giving the instruction, defendant has not established on this record that failing to request it was not a reasonable trial strategy. See Stanaway, 446 Mich at 687. Therefore, although defendant is correct that a rational view of the evidence presented at trial would have supported an AWIGBH instruction, defendant is not entitled to relief on this issue. However, because the case is being remanded for a new trial, defendant will have an opportunity to request the instruction.
III. CONCLUSION
We find no error in the trial court’s allowance of an amendment to the information during trial. But we conclude that the trial court erred by failing to instruct the jury on mitigating circumstances and voluntary manslaughter, and that these errors were not harmless. We accordingly vacate defendant’s convictions and remand for a new trial.11 We do not retain jurisdiction.
/s/ Adrienne N. Young /s/ Daniel S. Korobkin
11 In light of this disposition, it is unnecessary to address the remaining issues raised by defendant and his appellate counsel.
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