Sufficiency of the evidence; Assault of a prison employee; MCL 750.197c; People v Kammeraad; “Violence”; People v Terry; Jury instructions; Waiver of an instructional error; People v Kowalski; Sentencing; Scoring of OV 19; MCL 777.49(a) (offender threatened the security of a penal institution); Resentencing; People v Francisco

The court held that there was sufficient evidence to support defendant’s conviction of assault of a prison employee, but that the trial court erred by scoring OV 19, which altered his guidelines range. Thus, it affirmed his conviction, but vacated his sentence and remanded for resentencing. He swiped the inside of a prison nurse’s “leg, starting from above the knee, moving upward, and ending near her groin area.” The trial court sentenced him as a fourth-offense habitual offender to 4 to 10 years. He argued that there was no evidence the alleged assault involved the use of violence, a threat of violence, or a dangerous weapon as required to support such a conviction. The trial court “instructed the jury that the prosecutor had to prove that defendant committed a battery against the nurse, defining a battery as ‘a forceful or violent or offensive touching of the person of another.’ Thus, the jury may have convicted defendant absent a finding that the assault involved the use of violence, a threat of violence, or a dangerous weapon. Defense counsel, however, expressed that he had no challenges to the jury instructions when queried by the trial court.” Further, defendant did “not even raise any claim of instructional error in connection with his sufficiency argument, and even if he had, we would deem the issue waived in light of counsel’s affirmative indication to the trial court that the jury instructions were acceptable.” Moreover, the nurse’s testimony “provided sufficient evidence demonstrating the wrongful application of physical force against her so as to harm or embarrass her.” But the court found that the trial court erred by scoring 25 points for OV 19, noting there was “no evidence that the nurse’s act of calling upon another nurse to monitor [him] while she reported the incident created a threat to the security of the prison.” And there was “no evidence that corrections officers were diverted to the examination room, which, had it occurred, may have given rise to a security threat.” There was “very little disruption caused by the incident. While an assault upon a prison healthcare worker could in some circumstances result in a disruption so as to create a threat to a penal institution, the facts” here did not reach that level. Further, there was “no evidence that would support a score of 10 or 15 points for OV 19” and the prosecution did not “claim that a score other than 25 points is appropriate.” Resentencing was required because the guidelines range was altered.