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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v WILLIAM EDWIN JACOB, Defendant-Appellant.

UNPUBLISHED March 1, 2011

No. 295760 Bay Circuit Court LC No. 08-011160-FH

Before: HOEKSTRA, P.J., and FITZGERALD and BECKERING, JJ. PER CURIAM. Defendant appeals as of right from his jury-trial conviction and sentence for assault with intent to commit great bodily harm, MCL 750.84.1 Following his conviction, defendant was sentenced, as a fourth habitual offender, MCL 769.12, to serve 152 to 228 months in prison. We affirm. I Defendant's conviction resulted from a domestic altercation between defendant and his ex-wife, Christina Alvarado, on November 28, 2008. Alvarado testified that defendant slapped her across the left side of her face, strangled her, called her names, and repeatedly threatened to kill her. Defendant had recently begun residing with Alvarado because he was having marital difficulties with his current wife, Shannon Gallagher.2 Alvarado testified at trial that on the day in question, defendant called her several times while she was at work, showed up at her work, and brought her home. He told her that "everything was getting to" him and that they had to talk. Alvarado asked defendant if he was going back to his wife; defendant said that he was "done." Defendant threw a Christmas decoration at Alvarado and began swearing at her. He told Alvarado that he was leaving, and he went upstairs to pack his things. Alvarado followed

1

Defendant was also charged with extortion, but was acquitted of this charge and it is not at issue in this appeal. Alvarado indicated that defendant had been staying with her for approximately two and a half weeks; defendant testified that he been staying with Alvarado for ten days.

2

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defendant so that he would not take, or break, any of her belongings. Defendant continued calling Alvarado names. After Alvarado attempted to convince defendant that he did not have to leave, he hit her across the left side of her face. Alvarado began crying. Defendant hugged her and said he was sorry and that he loved her. He then said that he "can't do this" and that he had to go. Alvarado testified further that she sat on the bed so that defendant could pack his belongings. Defendant again began swearing at her. Later, as Alvarado was attempting to convince defendant not to leave, he began shoving her face, taunting her and laughing at her, and telling her to hit him. Defendant continued pushing and shoving Alvarado. She asked him to stop and pushed him away from her. Defendant then laughed, threw Alvarado on the bed, and began strangling her. Defendant asked her, "[b]itch, how do you like that bitch," "[h]ow do you like that, you fucking bitch"; he told her "[t]his is what you deserve bitch," and "I'm gonna kill you bitch. This is what you get." This lasted a few seconds. Alvarado did not know whether defendant stopped of his own accord or whether she pushed him off of her. She told defendant that she was going to call 911. When she did, he called her a "rat-ass bitch." He continuously called her names and tried to intimidate her. While Alvarado was speaking with the 911 operator, defendant again said that he was going to kill her.3 Defendant's neck was scratched during the altercation in the area where he had Shannon's name tattooed. During cross-examination, Alvarado denied that she became angry when defendant continued packing despite her attempts to get him to stay; she denied that she attacked defendant, or that she intentionally scratched his neck where Shannon's name is tattooed. Alvarado thought she must have unintentionally scratched defendant when he was strangling her, as a "natural reaction." In sharp contrast, defendant testified that he merely pushed Alvarado away from him after she twice attacked him, scratching his neck in the area where Shannon's name was tattooed. Defendant testified that Alvarado became angry after he informed her that he was getting back together with Shannon. Defendant denied arguing with Alvarado, hitting her across the face, choking her, or threatening to kill her at any time. He acknowledged calling her a name, but indicated that it was only after, and in response to, her scratching his neck severely enough to draw blood. Bay City police officer Kristin Thomas was dispatched to Alvarado's home following a 911 call for a domestic assault complaint. Thomas testified that upon her arrival, she found Alvarado to be very frightened. Alvarado told Thomas that defendant was going to kill her because she had called the police. She told Thomas that she had gotten into a verbal argument with defendant that had escalated into a physical assault, during which defendant had slapped her across the face, pushed her down onto the bed, and choked her. Alvarado also said that while defendant was choking her she could not breathe, and that she was afraid she was going to die.

3

The recorded 911 call was admitted into evidence and played for the jury.

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Thomas testified that she observed and photographed red marks, and possible swelling, on Alvarado's neck, along with some marking on the left side of her face.4 Bobbi Rood, Alvarado's employer, testified that the day after the assault, she noticed bruising under Alvarado's left eye, as well as "four bruises

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