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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v AUBREY JILES STANLEY, JR., Defendant-Appellant.

UNPUBLISHED February 12, 2009

No. 276208 Chippewa Circuit Court LC No. 06-008216-FH

Before: Sawyer, P.J., and Servitto and M. J. Kelly, JJ. PER CURIAM. Following a jury trial, defendant was convicted of assaulting a prison employee, MCL 750.197c. Defendant was sentenced as a habitual offender, fourth offense, MCL 769.12, to serve four years and ten months to 15 years consecutive to his current sentence. Defendant appeals as of right and we affirm. Defendant's arguments on appeal are that his conviction was not sufficiently supported by the evidence against him, that the guilty verdict was against the great weight of the evidence, and that trial counsel's assistance was ineffective. We disagree. In reviewing the sufficiency of the evidence, this Court must view the evidence de novo, People v Cline, 276 Mich App 634, 642; 741 NW2d 563 (2007), to determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt, People v Tombs, 472 Mich 446, 459; 697 NW2d 494 (2005). A trial court's denial of a motion for a new trial is reviewed for an abuse of discretion. People v Lemmon, 456 Mich 625, 648 n 27; 576 NW2d 129 (1998). And the constitutional question of whether an attorney's ineffective assistance deprived a defendant of his Sixth Amendment1 right to counsel is reviewed de novo. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). On January 14, 2006, defendant was serving sentences at the Chippewa Regional Correctional Facility for his 1997 convictions of assault with intent to do great bodily harm and possession of a firearm during the commission of a felony. On that day, defendant returned from dinner with several other prisoners to find another prisoner was in a physical altercation with one

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US Const, Am VI.

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of the resident unit officers. When running to assist in the initial altercation, officer Kevin Volz was struck by an inmate (not defendant) on the side of the jaw. At the scene of the altercation, defendant disregarded orders to leave the area. At one point, defendant physically resisted an attempt by officers to restrain him. Officer Richard Reed testified that during the confrontations and struggle with defendant, Reed clearly saw defendant punch Volz in the mouth. Volz required six stitches to close the resulting cut on his lip. Eventually, defendant was restrained and dragged from the scene. A videotape of the incident was played in court, and during his testimony Volz pointed out where on the tape he believes defendant struck him. Defendant contends that there is insufficient evidence to conclude beyond a reasonable doubt that he struck Volz. Due process requires that a prosecutor's evidence is sufficient for a trier of fact to conclude that the defendant is guilty beyond a reasonable doubt. Tombs, supra at 459. On appeal, the evidence presented is reviewed in the light most favorable to plaintiff, id., with all conflicts in the evidence resolved in favor of the prosecution, People v Fletcher, 260 Mich App 531, 562; 679 NW2d 127 (2004). Circumstantial evidence and reasonable inferences that result from this evidence can constitute satisfactory proof of the elements of the crime. People v Fennell, 260 Mich App 261, 270; 677 NW2d 66 (2004). Reed testified that he clearly saw defendant punch Volz in the face. Reed was approaching the altercation when he saw defendant's coat in the hands of an officer and saw defendant attempting to elude restraint. Then he saw the punch and helped restrain defendant thereafter. Volz said that he was sure that defendant punched him in the altercation, and he pointed out on the video when he saw this occurring. Moreover, the jury viewed the videotape of the incident. Defendant attempts to characterize the evidence of the testifying corrections officers as contradictory and thus implausible. However, the testimony of the officers is not contradictory because of the different times they arrived at the altercation, their different physical positions, and the chaos and speed of the physical altercation. Despite defendant's sworn denials, the jury determined that the evidence established beyond a reasonable doubt that defendant struck Volz. We will not interfere with the jury's role in determining the credibility of witnesses. People v Passage, 277 Mich App 175, 177; 743 NW2d 746 (2007). Accordingly, there was sufficient evidence for the jury to determine defendant struck Volz beyond a reasonable doubt. Defendant also contends that the great weight of this evidence is against the finding of defendant's guilt and, therefore, the trial judge should have granted a new trial. A new trial based upon the weight of the evidence should be granted only where the evidence preponderates heavily against the verdict and a serious miscarriage of justice would otherwise result. Lemmon, supra at 642. As noted above, Reed testified that he saw defendant strike Volz and Volz pointed out on the video where he was struck. Defendant asserts that finding him guilty is a miscarriage of justice because Reed's testimony is contradicted by indisputable physical facts, and no other witness saw defendant strike Volz. "[W]hen testimony is in direct conflict and testimony supporting the verdict has been impeached, if `it cannot be said as a matter of law that the testimony thus impeached was deprived of all probative value or that the jury could not believe it,' the credibility of witnesses is for the jury." Id. at 643, quoting Anderson v Conterio, 303 -2-

Mich 75, 79; 5 NW2d 572 (1942). As discussed above, Reed's testimony and the testimony of the other officers were not contradictory. Further, while an alternative version of the events was provided by defendant, he did not effectively impeach the officers' testimony. Defendant's assertions also do not demonstrate that the testimony contradicts indisputable physical facts or law. Lemmon, supra at 643. That one person has a different account of an event than another does not render either account physically implausible. Accordingly, defendant fails to establish that the trial court abused its discretion in denying the motion for new trial on the ground that the verdict was against the great weight of the evidence. Finally, defendant asserts that his counsel provided him ineffective assistance. A defendant's right to counsel is guaranteed by the United States and Michigan Constitutions. US Const, Am VI; Const 1963 art 1,

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