People v. McKewen

Citation326 Mich.App. 342,926 N.W.2d 888
Decision Date25 October 2018
Docket NumberNo. 339068,339068
Parties PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Benjamin Keith MCKEWEN, Defendant-Appellant.
CourtCourt of Appeal of Michigan (US)

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, B. Eric Restuccia, Chief Legal Counsel, and David Porter, Assistant Attorney General, for the people.

F. Mark Hugger, Ann Arbor, for defendant.

Before: Stephens, P.J., and Shapiro and Gadola, JJ.

Shapiro, J.

Following a jury trial, defendant appeals his convictions of assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84(1)(a), and felonious assault, MCL 750.82. The trial court sentenced defendant to concurrent prison terms of 5 to 10 years for the AWIGBH conviction and two to four years for the felonious-assault conviction. For the reasons set forth in this opinion, we affirm defendant’s conviction for AWIGBH but vacate his conviction for felonious assault.


Defendant’s convictions arose from an altercation between himself and the complainant, Aristotle Zarkin, at a birthday party. Zarkin confronted defendant after Zarkin’s girlfriend told him that defendant’s conduct toward her made her feel uncomfortable. According to witnesses, the two pushed or punched each other, after which Zarkin fell to the ground. When he got back up, witnesses noticed that he was bleeding profusely from his chest. Although Zarkin initially thought he had cut himself from landing on a broken shard of glass, witnesses and investigators did not find any glass or other sharp object in the area where Zarkin fell. Medical providers believed that Zarkin received a stab wound

to his chest. The object made a clean cut, and it traveled through muscle, fascia, and cartilage and then severed his mammary artery. None of the witnesses to the altercation observed defendant armed with a knife, but a witness testified that after Zarkin fell to the ground, defendant kept his right hand behind his back as if trying to conceal something and that he continued to keep his right hand concealed from view as he walked away after the altercation.


On appeal, defendant first argues that the trial court erred by denying his motion for a directed verdict. Defendant argues that the evidence was insufficient to show that he actually possessed a knife and stabbed Zarkin, which in turn rendered the evidence insufficient to support his convictions. We disagree.1

Various witnesses testified that after defendant either pushed or punched Zarkin in the chest during the altercation, Zarkin got up from the ground with a chest wound

that bled profusely. It is undisputed that none of the witnesses actually saw defendant with a knife. However, an emergency medical technician, who was present at the party and provided assistance after Zarkin was injured, testified that the wound appeared to be a stab wound that was made by something very sharp, narrow, long, and skinny. The emergency room physician, who treated Zarkin at McLaren Hospital, similarly testified that the wound was a stab wound with clean edges made by something sharp and that Zarkin sustained a laceration to his mammary artery.

Dr. Daniel Meldrum, M.D., a board-certified cardiothoracic and general trauma surgeon who treated Zarkin at Covenant Medical Center, testified on the basis of his observations during the physical examination that Zarkin was stabbed with a knife about three to four inches long, approximately an inch in width, and three to four millimeters thick. Dr. Meldrum also explained that the trajectory of the wound

was at an angle from "outside to inside" rather than "straight on," and the trajectory would be "counterintuitive" with falling directly onto glass. One of the eyewitnesses testified that she saw defendant strike Zarkin in the chest, but defendant did not throw a "normal" punch with his knuckles "straight to whatever body part he was hitting." Instead, he struck at Zarkin "sideways" with the thumb and forefinger of his hand using a roundhouse punch.

Although defendant and other witnesses initially thought that defendant had fallen on a piece of glass, witnesses and investigators did not see any large shards of glass or other items on the ground that might have caused Zarkin’s injury when he fell. And although none of the witnesses actually saw a knife, a witness testified that after the altercation, defendant held his right hand behind his back and appeared to be trying to conceal something as he argued with bystanders and as he left the scene.

Viewed in a light most favorable to the prosecution, the testimony of the emergency room physician and the surgeon combined with the evidence that defendant was concealing his right hand behind his back following the altercation was sufficient to enable the jury to infer, and to conclude beyond a reasonable doubt, that defendant stabbed Zarkin in the chest with a knife. Thus, the jury could reasonably conclude that defendant’s use of a knife to stab Zarkin in the chest proved that he assaulted Zarkin with a dangerous weapon and that he did so with the intent to cause great bodily harm less than murder. People v. Stevens , 306 Mich. App. 620, 629, 858 N.W.2d 98 (2014).

Accordingly, sufficient evidence supports defendant’s convictions.


Defendant next argues that the trial court abused its discretion by determining that Dr. Meldrum was qualified to offer his expert opinion that Zarkin’s wound

was a stab wound from a knife.2

The admissibility of expert testimony is governed by MRE 702, which provides:

If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Before admitting expert testimony, a trial court must "ensure that the testimony (1) will assist the trier of fact to understand a fact in issue, (2) is provided by an expert qualified in the relevant field of knowledge, and (3) is based on reliable data, principles, and methodologies that are applied reliably to the facts of the case." People v. Kowalski , 492 Mich. 106, 120, 821 N.W.2d 14 (2012) (opinion by MARY BETH KELLY , J.). In this case, defendant challenges the second and third requirements. He argues that Dr. Meldrum was not qualified to testify as an expert and that his opinion testimony was not based on reliable principles and methods. We disagree.

With respect to the second requirement, the trial court found that Dr. Meldrum was qualified to render an opinion regarding the nature of Zarkin’s wound

on the basis of his training and decades of experience as a cardiothoracic surgeon, general surgeon, and trauma surgeon. Dr. Meldrum testified about his qualifications and board certifications, including the fact that he is required to address identification of the instrumentality that caused a particular wound as part of a periodic recertification process. Dr. Meldrum also testified that he trained under a preeminent expert in trauma surgery and that he received instruction in distinguishing different types of wounds.

Defendant argues that Dr. Meldrum was not qualified because he did not possess the same qualifications as, for example, a medical examiner. Defendant appears to conflate the qualifications for testifying as an expert under MRE 702 with the requirements of MCL 600.2169, which governs a witness’s qualifications for testifying about the standard of care in a medical malpractice case. In contrast to MCL 600.2169, however, nothing in MRE 702 requires that a medical expert be board certified in a particular specialty, such as forensic pathology, or that a medical expert have devoted a majority of his or her practice to a given specialty to be qualified to offer expert testimony. The trial court did not abuse its discretion by ruling that Dr. Meldrum’s training, education, and experience qualified him as an expert in determining the nature of Zarkin’s wound


With respect to the third requirement, the trial court found that Dr. Meldrum’s opinion was based on sound scientific principles. The court noted that Dr. Meldrum had investigated other possible causes of the wound

. Specifically, he testified that he had checked whether glass or other particles were present in the wound to make sure that no particles were left behind to cause further injury and that he found none. Dr. Meldrum also explained his process of ruling out other potential explanations for Zarkin’s wound through differential diagnosis, a well-recognized process. See Lowery v. Enbridge Energy Ltd. Partnership , 500 Mich. 1034, 1046, 898 N.W.2d 906 (2017) ( MARKMAN , J. concurring).

For these reasons, the trial court did not abuse its discretion by finding that Dr. Meldrum’s opinion testimony was based on reliable data, principles, and methodologies and that Dr. Meldrum was qualified to offer his opinion regarding the cause of Zarkin’s wound



Defendant raises two arguments challenging his convictions for both AWIGBH and felonious assault arising out of a single incident with one victim. First, defendant argues that his conviction for both offenses for a single act violates the constitutional double-jeopardy protection against multiple punishments for the same offense. However, this argument was rejected by the Supreme Court in People v. Strawther , 480 Mich. 900, 739 N.W.2d 82 (2007), and it was more fully discussed in People v. Wilson , 496 Mich. 91, 102, 852 N.W.2d 134 (2014), abrogated on other grounds by ...

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