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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 27, 2017

v No. 330327 Wayne Circuit Court TONYA MALLETT-RATHELL, also known as TONYA YVONNE MALLET-RATHELL, also known as TONYA RATHELL, and also known as TONYA AUBERT, LC No. 15-005035-01-FH

Defendant-Appellant.

Before: M URPHY , P.J., and M URRAY and M. J. K ELLY , JJ.

P ER C URIAM

.

Defendant appeals as of right her bench trial convictions of a ssault and battery, MCL 750.81(1), and fourth-degree child abuse, MCL 750.136b(7). She was sentenced to two years’ probation for both convic tions. We affirm.

There was evidence that, during an unusual game called “lockou t” in which persons attempted to chase and force opposing “team” members out of the family home, defendant physically pushed and dragged her 14-year-old daughter, JC, the n grabbed and held her by the collar, causing JC to feel as if she were choking, and subseque ntly held a butcher’s knife against
JC’s throat at the kitchen counter . There was also testimony t hat defendant had been drinking heavily and that she was angry at JC for supposedly choosing he r father over defendant. The prosecution charged four counts in the information: count 1 cha rged assault with a dangerous weapon (felonious assault), MCL 750.82; count 2 charged fourth- degree child abuse; count 3 charged assault and battery; and count 4 also charged assault a nd battery. The factual theory behind each count did not become entirely clear until the trial . In addressing defendant’s motion for a directed verdict, the prosecutor indicated that the felon ious assault count concerned, of course, defendant’s employment of the butcher’s knife, that the “first assault” regarded the pushing and dragging of JC, that the “second assault” concerned the “grabbing of the collar” or choking incident, and that the child abuse count regarded “eith er the choking and/or the holding [of] the knife up to [JC’s] throat.”

In deciding defendant’s motion fo r directed verdict, the trial court first noted that it was “concerned about those multiple counts of assault and battery.” The court subsequently ruled-2- that “Count 4 will be dismissed.” Given the prosecutor’s descr iption of the counts, the trial court necessarily dismissed the assaul t and battery count connected t o the choking incident. The court denied the motion for directed verdict on the remaining counts. The trial court did state that “there’s just nothing . . . to suggest that this was more than one occurrence of assaultive behavior
on behalf of the . . . defendant.” At the conclusion of the tr ial, the court acquitted defendant of felonious assault, concluding that she lacked the intent to act ually injure JC or to place her in reasonable apprehension of an immediate battery. With respect to fourth-degree child abuse, the trial court found defendant gui lty, given that “an unreasonable risk of harm . . . occur[s] . . . when you put a knife up to your child’s neck, even if you’re doing i t playing.” Finally, absent any elaboration, the trial court f ound defendant guilty of assault and battery. In light of the fact that count 3 was still unresolved at that point, and considering tha t count 3 was predicated on, according to the prosecutor, an assault and battery arising out of defendant’s act of pushing and dragging JC through the house, we must necessarily conclude tha t the trial court found that defendant committed the offense of assault and battery when she pushed and dragged JC. The trial court’s earlier comment when addressing the motion for di rected verdict that there was just
“one occurrence of assaultive behavior” does not and cannot cha nge this conclusion.

On appeal, defendant argues that because the trial court found that there was insufficient evidence to convict defendant of felonious assault, due to a la ck of intent to injure JC or place her in reasonable apprehension of an immediate battery, there w as likewise insufficient evidence to convict her of assault and battery and fourth-degree child a buse. Therefore, defendant argues that the trial court’s verdicts were inconsistent, and thus the child abuse and assault and battery
convictions must be reversed.

A claim of error premised on inconsistent verdicts is a consti tutional issue subject to de
novo review. People v Russell , 297 Mich App 707, 722; 825 NW2d 623 (2012). Our Supreme Court has held that “a trial judge sitting as the trier of fact may not enter an inconsistent verdict.” People v Ellis , 468 Mich 25, 26; 658 NW2d 142 (2003) (citation and quotation marks omitted). A verdict is inconsistent when it “cannot be rationally reconci led” with the court’s factual findings. Id. at 27. If there is no inconsistency in the trial court’s factu al findings and its verdicts, reversa l is not required. People v Smith , 231 Mich App 50, 53; 585 NW2d 755 (1998).

Defendant was acquitted of fel onious assault, the elements of which are “(1) an assault, (2) with a dangerous weapon, and (3) the intent to injure or pl ace the victim in reasonable apprehension of an immediate battery.” People v Avant , 235 Mich App 499, 505; 597 NW2d 864 (1999). The third or “intent” element of the offense was n ot sufficiently established here according to the trial court. An assault and battery, entailin g an actual battery as opposed to a mere assault absent a battery, does require proof of an intent to either commit a battery or to make the victim reasonably fear a n immediate battery. M Crim J I 17.2. The problematic aspect of defendant’s argument is that the trial court found a specifi c failure to show the requisite intent relative to defendant placi ng the knife to JC’s throat . The trial court did not expressly speak to the issue of criminal intent in regard to the assault and batte ry arising out of the pushing and dragging of JC, but given the conviction, we must assume that t he court found that there was sufficient evidence of intent on that particular offense. Defe ndant’s appellate argument simply
does not reach the assault and ba ttery conviction and the facts underlying that conviction; there was no inconsistency in finding a lack of intent as to feloniou s assault while implicitly finding that intent was proven with resp ect to the assault and battery charge. We note that our analysis-3- and ruling would necessarily be the same if the choking inciden t was the basis for the assault and battery charge that went to ve rdict following trial. Reversal is unwarranted. 1

With respect to the conviction for fourth-degree child abuse, MCL 750.136b provides, in relevant part, as follows:

(7) A person is guilty of child abuse in the fourth degree if any of the following apply:

(a) The person's omission or reck less act causes physical harm to a child.

(b) The person knowingly or intentionally commits an act that under the circumstances poses an unreasonable risk of harm or injury to a child, regardless of whether physical harm results.

Concluding, under a set of circumstances, that a person knowin gly or intentionally created an unreasonable risk of harm or injury to a child is no t inconsistent with a finding that, under the same circumstances, the person lacked the intent to i njure or to place the child in reasonable apprehension of an immediate battery. While defenda nt may not have had the intent to injure JC or to place her in reasonable apprehension of an i mmediate battery when defendant put the butcher’s knife to JC’s t hroat, the evidence could stil l support, absent contradiction, a finding that defendant knowingly or intentionally committed an act that posed an unreasonable risk of harm or injury to JC. And the evidence certainly suppo rted a ruling that defendant’s act of placing the butcher’s knife to JC’s throat constituted the k nowing and intentional commission of an act that posed an unreasona ble risk of harm or injury to JC. Reversal is unwarranted.

Affirmed.

/s/ William B. Murphy /s/ Christopher M. Murray /s/ Michael J. Kelly

1 We do note that this case has been somewhat difficult to analy ze, considering the trial court’s lack of elaboration and clarity in ruling on the motion for dir ected verdict and in rendering the
final verdicts.