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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UNPUBLISHED 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: MURPHY, P.J., and MURRAY and M. J. KELLY, JJ. 

PER CURIAM. 

 Defendant appeals as of right her bench trial convictions of assault and battery, MCL 

750.81(1), and fourth-degree child abuse, MCL 750.136b(7). She was sentenced to two years’ 

probation for both convictions. We affirm. 

 There was evidence that, during an unusual game called “lockout” 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, then grabbed and held her by the 

collar, causing JC to feel as if she were choking, and subsequently held a butcher’s knife against 

JC’s throat at the kitchen counter. There was also testimony that defendant had been drinking 

heavily and that she was angry at JC for supposedly choosing her father over defendant. The 

prosecution charged four counts in the information: count 1 charged 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 and 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 felonious 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 “either the choking and/or the holding 

[of] the knife up to [JC’s] throat.” 

 In deciding defendant’s motion for directed verdict, the trial court first noted that it was 

“concerned about those multiple counts of assault and battery.” The court subsequently ruled 
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that “Count 4 will be dismissed.” Given the prosecutor’s description of the counts, the trial court 

necessarily dismissed the assault and battery count connected to 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 trial, the court acquitted defendant of 

felonious assault, concluding that she lacked the intent to actually 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 guilty, 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 it playing.” Finally, absent any 

elaboration, the trial court found defendant guilty of assault and battery. In light of the fact that 

count 3 was still unresolved at that point, and considering that 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 that 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 directed verdict that there was just 

“one occurrence of assaultive behavior” does not and cannot change 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 lack of intent to injure JC or place 

her in reasonable apprehension of an immediate battery, there was likewise insufficient evidence 

to convict her of assault and battery and fourth-degree child abuse. 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 constitutional 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 reconciled” with the court’s factual 

findings. Id. at 27. If there is no inconsistency in the trial court’s factual findings and its 

verdicts, reversal is not required. People v Smith, 231 Mich App 50, 53; 585 NW2d 755 (1998). 

 Defendant was acquitted of felonious assault, the elements of which are “(1) an assault, 

(2) with a dangerous weapon, and (3) the intent to injure or place 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 not sufficiently established here 

according to the trial court. An assault and battery, entailing 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 an immediate battery. M Crim JI 17.2. The problematic aspect 

of defendant’s argument is that the trial court found a specific failure to show the requisite intent 

relative to defendant placing 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 battery arising out of the pushing and 

dragging of JC, but given the conviction, we must assume that the court found that there was 

sufficient evidence of intent on that particular offense. Defendant’s appellate argument simply 

does not reach the assault and battery conviction and the facts underlying that conviction; there 

was no inconsistency in finding a lack of intent as to felonious assault while implicitly finding 

that intent was proven with respect to the assault and battery charge. We note that our analysis 
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and ruling would necessarily be the same if the choking incident was the basis for the assault and 

battery charge that went to verdict 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 reckless 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 knowingly or intentionally 

created an unreasonable risk of harm or injury to a child is not inconsistent with a finding that, 

under the same circumstances, the person lacked the intent to injure or to place the child in 

reasonable apprehension of an immediate battery. While defendant may not have had the intent 

to injure JC or to place her in reasonable apprehension of an immediate battery when defendant 

put the butcher’s knife to JC’s throat, the evidence could still 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 supported a ruling that defendant’s act 

of placing the butcher’s knife to JC’s throat constituted the knowing and intentional commission 

of an act that posed an unreasonable risk of harm or injury to JC. Reversal is unwarranted. 

 Affirmed. 

/s/ William B. Murphy 

/s/ Christopher M. Murray 

/s/ Michael J. Kelly 

 

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 We do note that this case has been somewhat difficult to analyze, considering the trial court’s 

lack of elaboration and clarity in ruling on the motion for directed verdict and in rendering the 

final verdicts.