            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 21, 2020
               Plaintiff-Appellee,

v                                                                  No. 347302
                                                                   Emmet Circuit Court
SHAWN EDWARD HOFFMAN,                                              LC No. 18-004808-FH

               Defendant-Appellant.


Before: TUKEL, P.J., and MARKEY and GADOLA, JJ.

PER CURIAM.

       Defendant appeals by right his conviction of domestic violence, third offense, MCL
750.81(2) and (5). He was sentenced as a fourth-offense habitual offender, MCL 769.12, to 3 to
15 years’ imprisonment. We affirm.

        Defendant’s son was engaged in an argument with defendant’s wife when both stumbled
and fell to the ground. As defendant’s wife was in the process of standing back up, defendant
pushed her back down on the ground, jumped on top of her, squeezed her face, which left red
marks, and threatened to kill her. Defendant claimed that he was acting in defense of his son. The
jury was instructed on defense of others and that the prosecution had to prove beyond a reasonable
doubt that defendant did not act in justifiable defense of his son.

        On appeal, defendant argues that there was insufficient evidence to show that he committed
an assault on his wife that was not done in reasonable and lawful defense of another. Defendant
contends that he used a minimal and appropriate amount of force to intercede in what appeared to
him to be a physical confrontation between his wife and son. Defendant further maintains that the
incident was over in seconds and that his act of physical intervention was not objectively harmful
or offensive.

        This Court reviews de novo the issue regarding whether there was sufficient evidence to
support a conviction. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). In
reviewing the sufficiency of the evidence, this Court must view the evidence—whether direct or
circumstantial—in a light most favorable to the prosecutor and determine whether a rational trier
of fact could find that the essential elements of the crime were proven beyond a reasonable doubt.


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People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012); People v Hardiman, 466 Mich 417,
428; 646 NW2d 158 (2002). A jury, and not an appellate court, observes the witnesses and listens
to their testimony; therefore, an appellate court must not interfere with the jury's role in assessing
the weight of the evidence and the credibility of the witnesses. People v Wolfe, 440 Mich 508,
514-515; 489 NW2d 748 (1992). Circumstantial evidence and any reasonable inferences that arise
from such evidence can constitute satisfactory proof of the elements of a crime. People v Carines,
460 Mich 750, 757; 597 NW2d 130 (1999). The prosecution need not negate every reasonable
theory of innocence, but need only prove the elements of the crime in the face of whatever
contradictory evidence is provided by the defendant. People v Nowack, 462 Mich 392, 400; 614
NW2d 78 (2000). “All conflicts in the evidence must be resolved in favor of the prosecution.”
People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).

        The offense of domestic violence is committed when “an individual . . . assaults or assaults
and batters his or her spouse.” MCL 750.81(2). A “battery is an intentional, unconsented and
harmful or offensive touching of the person of another,” and an “assault” is either an attempt to
commit a battery or an unlawful act that places another person in reasonable apprehension of an
immediate battery. People v Nickens, 470 Mich 622, 628; 685 NW2d 657 (2004) (quotation marks
and citation omitted). MCL 780.972(2) provides:

                An individual who has not or is not engaged in the commission of a crime
       at the time he or she uses force other than deadly force may use force other than
       deadly force against another individual anywhere he or she has the legal right to be
       with no duty to retreat if he or she honestly and reasonably believes that the use of
       that force is necessary to defend himself or herself or another individual from the
       imminent unlawful use of force by another individual. [Emphasis added.]

Once a defendant injects the issue of self-defense or defense of others and satisfies the initial
burden of producing some supporting evidence, the prosecution bears the burden of proof to
exclude the possibility that the use of force was done in self-defense or defense of others. See
People v Dupree, 486 Mich 693, 709-710; 788 NW2d 399 (2010). A determination that a
defendant acted in justifiable self-defense or defense of others necessarily requires a finding that
the defendant acted intentionally, but that the circumstances of the case justified his actions. See
People v Heflin, 434 Mich 482, 503; 456 NW2d 10 (1990). The touchstone of any claim of self-
defense or defense of others is necessity. Reese, 491 Mich at 144.

        Once again, defendant argues that his use of force was justifiable to protect his son. There
was evidence, however, that at the time defendant physically engaged his wife, the conflict
between his wife and son had ended and that the son was not in physical peril. Further, there was
evidence that defendant sat on top of his wife for three to four minutes and then squeezed her face,
which caused red marks along her cheekbones. Defendant also threatened to kill her. Viewing
the evidence in a light most favorable to the prosecution, resolving all factual conflicts in the
prosecution’s favor, and deferring to the jury on credibility assessments, we find there was
sufficient evidence for the jury to conclude that the prosecution proved beyond a reasonable doubt
that defendant’s use of force was neither honest nor reasonable. Stated otherwise, we hold that the
prosecution presented sufficient evidence to establish that defendant did not act in defense of his
son. We further hold that the evidence sufficiently established that defendant committed an
intentional, unconsented, harmful, and offensive touching of his wife, i.e., a battery, as well as


                                                 -2-
committing an unlawful act that placed his wife in reasonable apprehension of an immediate
battery, i.e., an assault.

      We affirm.



                                                       /s/ Jonathan Tukel
                                                       /s/ Jane E. Markey
                                                       /s/ Michael F. Gadola




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