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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v LORA JUNIOR HUDDLESTON, Defendant-Appellant.

UNPUBLISHED November 12, 2009

No. 285961 Berrien Circuit Court LC No. 2007-405687-FH

Before: Servitto, P.J., and Bandstra and Markey, JJ. PER CURIAM. Defendant appeals by right his jury trial conviction of assaulting a jail employee, MCL 750.197c. Defendant was sentenced as an habitual offender, fourth offense, MCL 769.12, to 4 to 15 years' imprisonment. We affirm. Defendant first contends that there was insufficient evidence to sustain his conviction. We review a challenge to the sufficiency of the evidence de novo. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). In determining whether the prosecution has presented sufficient evidence to sustain a conviction, we construe the evidence in a light most favorable to the prosecution and consider whether there was sufficient evidence to justify a rational trier of fact in finding all of the elements of the crime beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). MCL 750.197c, provides in relevant part, "[a] person lawfully imprisoned in a jail, . . . who . . . through the use of violence, threats of violence or dangerous weapons, assaults an employee of the place of confinement . . . knowing the person to be an employee . . . is guilty of a felony . . . ." To support a conviction of assault of an employee of a place of confinement, the prosecution must prove 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 Neal, 232 Mich App 801, 802; 592 NW2d 92 (1998), adopted by special panel 233 Mich App 649; 592 NW2d 95 (1999).]

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The first element is not at issue in this case. The second element involves two separate inquiries: first, whether defendant acted with "violence" within the meaning of the statute, and second, whether defendant committed an assault against an employee. A simple assault may be committed either by an attempt to commit a battery or by an unlawful act that places another in reasonable apprehension of receiving an immediate battery. People v Terry, 217 Mich App 660, 662; 553 NW2d 23 (1996). "A battery is an intentional, unconsented and harmful or offensive touching of the person of another, or of something closely connected with the person." People v Reeves, 458 Mich 236, 240 n 4; 580 NW2d 433 (1998). We conclude the evidence was sufficient to allow a rational trier of fact to find beyond a reasonable doubt that defendant acted with violence under the statute when he threw feces and urine at Sergeant John McCoy. See People v Boyd, 102 Mich App 112; 300 NW2d 760 (1980) (throwing a container of liquid presumed to be urine amounted to violence under the statute); Terry, supra at 662-663 (spitting in the face of an officer amounted to violence under the statute). We also find that there was sufficient evidence to allow a rational jury to conclude beyond a reasonable doubt that defendant committed an assault against McCoy, an employee of the jail. Three deputies and McCoy testified that McCoy was hit with fecal matter and urine, which is an offensive touching. See Terry, supra at 663, and Boyd, supra at 117. Additionally, evidence showed defendant acted with intent because he was aware the deputies were prepared to enter his cell. McCoy instructed defendant to turn and face the back wall of the cell and defendant refused. Other testimony established that the officers warned defendant they were going to enter his cell, and officers instructed defendant to stop throwing feces. After deputies entered the cell, however, defendant took time to scoop fecal matter and urine out of the sink and throw it in the exact location where McCoy was standing, evincing that he acted with intent. Although defendant testified otherwise, this Court will not interfere with the factfinder's role of determining the weight of evidence or credibility of witnesses. Wolfe, supra at 514-515. Finally, the evidence was more than ample for the jury to reasonably infer that defendant knew that the assault victims were jail employees. McCoy and three other deputies testified that all the officers involved in the incident were in full uniform. "[A] reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict." People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). In sum, we find the prosecutor presented sufficient evidence to allow a rational trier of fact to conclude beyond a reasonable doubt that defendant assaulted McCoy within the meaning of MCL 750.197c. Next, defendant contends that the trial court denied him his right to due process and a fair trial by admitting other-acts evidence, improperly instructing the jury, and failing to "control the prosecutor." We review each of the alleged instances of error separately. The trial court admitted evidence of an incident that occurred in 2006 at the Berrien County Jail, during which defendant used a Styrofoam cup to throw feces into the face of a deputy as the deputy attempted to serve him lunch. The trial court admitted the evidence to show common scheme, plan or system and to show motive and intent. MRE 404(b). We review a trial court's decision to admit evidence for an abuse of discretion. People v Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998). In order for evidence of a defendant's other crimes, wrongs, or bad acts to be admissible pursuant to MRE 404(b), the evidence must meet the following requirements: 1) it must be -2-

offered for a proper purpose; 2) it must be relevant; 3) the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice; and 4) the trial court may provide a limiting instruction. People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994). In this case, evidence of the 2006 assault shares significant common features with the charged offense and shows defendant effectuated both assaults in a unique and distinctive manner. In both instances defendant was incarcerated at the Berrien County Jail and both times he saved feces and urine in containers inside his jail cell and waited for the opportunity to throw it at a deputy. Additionally, in both instances, defendant was angry. The similarities of the other-acts evidence and the charged offense in this case share a "`concurrence of common features'" such that they are "`naturally to be explained as caused by a general plan of which they are individual manifestations.'" People v Sabin (After Remand), 463 Mich 43, 64-65; 614 NW2d 888 (2000), quoting 2 Wigmore, Evidence (Chadbourn rev),

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