People v. Terry , 217 Mich. App. 660 ( 1996 )

553 N.W.2d 23 (1996) 217 Mich. App. 660

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Adrian Roosevelt TERRY, also Known as Adrian X, Defendant-Appellant.

Docket No. 178366.

Court of Appeals of Michigan.

Submitted May 16, 1996, at Grand Rapids. Decided July 23, 1996, at 9:20 a.m. Released for Publication September 13, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Dennis M. Swain, Prosecuting Attorney, and Michael E. Moody, Assistant Attorney General, for the people.

State Appellate Defender by Ronald J. Bretz, Lansing, for defendant on appeal.

Before DOCTOROFF, C.J., and NEFF and FITZGERALD, JJ.

PER CURIAM.

Defendant appeals as of right from his conviction following a bench trial of assault of a prison employee, M.C.L. § 750.197c; M.S.A. § 28.394(3). Defendant was also found guilty of being a second-offense habitual offender pursuant to M.C.L. § 769.10; M.S.A. § 28.1082. He was sentenced to imprisonment for a term of three to six years. On appeal, defendant claims that his actions did not fall under the conduct prohibited by the statute. He also argues that his sentence was disproportionate. We affirm.

On November 2, 1993, the Michigan Department of Corrections held a major misconduct hearing with regard to a prior infraction committed by defendant. The hearing was conducted by hearing officer Martin Palus, who had introduced himself to defendant on a previous occasion. At the end of the hearing, as defendant was being escorted out of the room by two officers, defendant spit on Palus' shoulder. Although Palus did not see defendant spit on his shoulder, he heard the sound of a person spitting and smelled the spit on his sport coat. The two escorting officers witnessed defendant spitting on Palus.

M.C.L. § 750.197c; M.S.A. § 28.394(3) is violated when a person lawfully imprisoned in a place of confinement uses violence to assault an employee of the place of confinement. People v. Williams, 173 Mich.App. 312, 318, 433 N.W.2d 356 (1988). Defendant argues that spitting does not constitute "violence" under the statute and does not constitute an assault. We disagree. In People v. Boyd, 102 Mich.App. 112, 300 N.W.2d 760 (1980), this Court reviewed whether throwing a liquid alleged to be urine constituted "violence" under the statute. The Boyd Court looked to the Criminal Jury Instructions to help define violence as "any wrongful application of physical force against another person so as to harm or embarrass him." Id. at 116, 300 N.W.2d 760. Thus, this Court found that the defendant violated the act by throwing liquid that was alleged to be urine. There is no logical distinction that can be drawn between the action of the defendant in Boyd and defendant's act of spitting on Palus. In this case, it is clear that defendant spit on Palus to "harm or embarrass him," and, thus, his action constituted violence under the statute. Defendant's claim to the contrary is without merit.

Defendant next contends that no "assault" occurred under the statute because Palus did not suffer any physical injuries. We disagree. A simple assault is either an attempt to commit a battery or an unlawful act that places another in reasonable apprehension of receiving an immediate battery. People v. Robinson, 145 Mich.App. 562, 564, 378 N.W.2d 551 (1985). A battery is the consummation of an assault. People v. Rivera, 120 Mich.App. 50, 55, 327 N.W.2d 386 (1982). For assault and battery, intent is an element of the crime to be proved. 2A Michigan Criminal Law & Procedure, Assaults (2d ed, 1992 rev ed), § 1024, p 668. Thus, the prosecution needed only to prove that defendant intended to spit on Palus; the lack of physical injury was irrelevant. See People v. Datema, 448 Mich. 585, 592, n. 8, 533 N.W.2d 272 (1995). The intent of the defendant may be established by circumstantial evidence. People v. Barclay, 208 Mich.App. 670, 674, 528 N.W.2d 842 (1995). In this case, the evidence showed that, as defendant was about to leave the hearing, "[h]e yelled profanities at [Palus,] stood up, and then spit on Mr. Palus." This evidence was clearly sufficient to support a finding that defendant intentionally spit on Palus. Because spitting upon a person is a battery, which is a consummated assault, spitting falls within the prohibitions of the statute. Accordingly, defendant's contention that no "assault" was shown under M.C.L. § 750.197c; M.S.A. § 28.394(3) is without merit.

Finally, defendant contends that his prison sentence of three to six years violated the principle of proportionality. We disagree. Sentencing guidelines do not apply to habitual offenders, because "[t]here was no consideration of habitual offender sentencing in the creation of the existing sentencing guidelines." People v. Cervantes, 448 Mich. 620, 625, 532 N.W.2d 831 (1995). The Legislature intended to afford the trial court discretion to punish more severely those who have committed more serious crimes and who have more extensive prior records of such crimes. Id. at 628-629, 532 N.W.2d 831. In sentencing defendant, the trial court noted that defendant had been involved in numerous instances of misconduct, including ten acts of threatening behavior, ten acts of destruction or misuse of property over $10, and two acts of assault and battery on staff. The trial court also took into consideration the offensive nature of the act of spitting on another and the lack of remorse shown by defendant. These were proper factors to consider in sentencing defendant. People v. Houston, 448 Mich. 312, 323-324, 532 N.W.2d 508 (1995); Cervantes, supra at 628, 532 N.W.2d 831. In light of defendant's excessive misconduct in prison, including threatening and assaultive behavior, we find that the sentence was proportionate to defendant and the crime he committed. Thus, the trial court did not abuse its discretion in imposing a sentence of three to six years for defendant's violation of M.C.L. § 750.197c; M.S.A. § 28.394(3).

Affirmed.