People v. Webb

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CAMERON MATTHEW WEBB, Defendant-Appellant.

No. 356943

Court of Appeals of Michigan

September 22, 2022

UNPUBLISHED

Ionia Circuit Court LC No. 2019-017905-FH

Before: Murray, P.J., and O'Brien and Redford, JJ.

PER CURIAM

A jury found defendant guilty of assaulting a prison employee in violation of MCL 750.197c(1). The trial court sentenced defendant as a third-offense habitual offender, MCL 769.11 to 43 months to 10 years' imprisonment. Defendant appeals of right his conviction and sentence. We affirm both.

1. BACKGROUND FACTS AND PROCEDURE

This case stems from an incident at the Michigan Reformatory, a Michigan Department of Corrections prison in Ionia. Defendant initially refused a female corrections officer's order to come over to her for a routine identification and pat-down search called a "shakedown." Defendant eventually went over to the officer but said: "You're not going to stop me from paroling. I'm paroling in 27 days bitch." Because of defendant's statements, the officer did not feel comfortable completing the shakedown or trying to put defendant into handcuffs herself, so she called for assistance. Two officers responded to escort defendant to the segregation unit. On the way there, defendant lunged at and spat in the face of one of the officers. Additional officers were needed to complete the escort. The events were video recorded and played for the jury to view at the trial.

The jury rejected defendant's denial of the incident and found him guilty of assaulting a prison employee in violation of MCL 750.197c. The investigating agent who interviewed defendant recommended assessing defendant 25 points under Offense Variable (OV) 19, which pertains to a threat to the security of a penal institution.^[1] Defendant attended the sentencing hearing via Zoom from the Ionia County Jail. At the sentencing hearing, the parties agreed to amend two prior record variables resulting in a reduction of the sentencing guidelines minimum range to 12 to 36 months. The court and the parties did not address the assessment of points for OV 19. The prosecution requested that the trial court sentence defendant to 36 months to the statutory maximum of 10 years' imprisonment. Defense counsel argued for a minimum sentence in the middle of the sentencing guidelines range on the ground that defendant had not physically assaulted the prison employee or physically injured him. The trial court addressed defendant and reflected upon his extensive criminal history which indicated to the court that defendant had contempt for authority. The court also considered the trial evidence including the video recording of the incident including defendant's disrespectful treatment of the female officer at the outset which signified to the court that defendant lacked respect for authority and women particularly the female officer by calling her names and disrespectfully eating an apple when she called defendant over. The trial court, therefore, departed upward from the sentencing guidelines range and sentenced defendant to a minimum 43 months' imprisonment to the statutory maximum of 10 years with credit for 506 days served. This appeal followed.

II. ANALYSIS

A. SUFFICIENCY OF THE EVIDENCE

Defendant argues that the prosecution presented insufficient evidence to prove an essential element of the crime of assaulting a prison employee. Defendant contends that spitting is not an act of violence or a threat of violence. We disagree.

Defendant's argument essentially is that Michigan's Model Criminal Jury Instructions (M Crim JI) 17.14 arbitrarily defines "violence" to include conduct "so as to . . . embarrass." He takes issue with the definition because the case cited in support of the definition, People v Burk, 238 Mich. 485, 487; 213 N.W. 717 (1927), says nothing about the victim being embarrassed, and caselaw that followed, including People v Terry, 217 Mich.App. 660, 662-663; 553 N.W.2d 23 (1996), which held that spitting on a prison hearing officer clearly constituted an act of violence, only seized on M Crim JI 17.14's definition of "violence." He contends that, had the M Crim JI and courts used a dictionary definition of violence, they would have found no reference to embarrassing a victim. Defendant asks this Court to indicate that, although it is obligated to follow Terry, that Terry was erroneously decided.

This Court reviews de novo questions of statutory interpretation. People v Gubachy, 272 Mich.App. 706, 708; 728 N.W.2d 891 (2006). This Court also reviews de novo challenges regarding sufficiency of the evidence. People v Evans, 335 Mich.App. 76, 85; 966 N.W.2d 402 (2020). On review of an evidence sufficiency challenge, the Court must view the evidence "in the light most favorable to the prosecutor" to determine "whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt." People v Smith-Anthony, 494 Mich. 669, 676; 837 N.W.2d 415 (2013) (quotation marks and citation omitted).

The statute governing the charge of assaulting a prison employee, MCL 750.197c(1), states in pertinent part, as follows:

A person lawfully imprisoned in a jail, other place of confinement established by law for any term, or lawfully imprisoned for any purpose at any other place . . . who . . . through the use of violence, threats of violence or dangerous weapons, assaults an employee of the place of confinement . . . is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $2,500.00, or both.

The crime of assault of a prison employee requires proof that the defendant "(1) was lawfully imprisoned in a place of confinement, (2) used violence, threats of violence, or dangerous weapons to assault an employee of the place of confinement or other custodian, and (3) knew that the victim was an employee or custodian." People v Kammeraad, 307 Mich.App. 98, 145; 858 N.W.2d 490 (2014); see also MCL 750.197c(1). The term "violence," as used in MCL 750.197c, has been defined as meaning "any wrongful application of physical force against another person so as to harm or embarrass him." Terry, 217 Mich.App. at 662.

Because MCL 750.197(c)(1) requires the use of violence, threat of violence, or dangerous weapons, defendant challenges the definition of "force and violence" featured in M Crim JI 17.14 which states, "As used in these instructions, the words 'force and violence' mean any use of physical force against another person so as to harm or embarrass [him / her]." Defendant points out that the model instruction's reference guide cites Burk, 238 Mich. at 487, which does not mention the word "embarrass." In Burk, a case in which the defendant sat accused of using a dangerous weapon, the defendant contested the trial court's jury instructions for felonious assault and the lesser-included offenses of assault and battery and simple assault. Id. The trial court charged the jury by reading the applicable statute of the Compiled Laws of 1915, which stated,

Whoever shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon, but without intending to commit the crime of murder, and without intending to commit great bodily harm less than the crime of murder, shall be deemed guilty of felonious assault, and upon conviction shall be punished. [Id. at 487.]

The court instructed that the weapon used in that case, an iron bar, constituted a dangerous weapon, and further instructed that in cases involving a "[b]attery, the person has to be-some damage has to be done to the person himself, some corporal hurt; in other words, an assault may be made without striking a person, like an attempt to strike. In other words, this is what we call the major crime, felonious assault." Id. at 488.

Defendant argues that the term "embarrass" is not contemplated in Burk making it improper for that term to be featured in the criminal jury instruction. Indeed, in Burk, our Supreme Court did not state the term "embarrass," but neither did it consider, explain, or provide a definition of the term "violence" or "threats of violence," terms not in the applicable 1915 statute or the instruction given by the lower court. Further, the Court, obviously, did not consider, explain, or provide a definition of the term "violence" as used in MCL 750.197c, which first became law in 1966 and has been amended several times since. Nor did the Court consider, explain, or provide a definition of "force and violence," the terms defined in M Crim JI 17.14.^[2]

In Terry, this Court explained what constitutes violence under MCL 750.197c:

In People v Boyd, 102 Mich.App. 112; 300 N.W.2d 760 (1980), this Court reviewed whether throwing a liquid alleged to be urine constituted "violence" under the statute. The Boyd Court looked to the Criminal Jury Instructions to help define violence as "any wrongful application of physical force against another person so as to harm or embarrass him." Id. at 116. Thus, this Court found that the defendant violated the act by throwing liquid that was alleged to be urine. There is no logical distinction that can be drawn between the action of the defendant in Boyd and defendant's act of spitting on Palus. In this case, it is clear that defendant spit on Palus to "harm or embarrass him," and thus, his action constituted violence under the statute. Defendant's claim to the contrary is without merit.

Defendant next contends that no "assault" occurred under the statute because Palus did not suffer any physical injuries. We disagree. A simple assault is either an attempt to commit a battery or an unlawful act that places another in reasonable apprehension of receiving an immediate battery. People v Robinson,

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