                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  May 22, 2018
              Plaintiff-Appellee,

v                                                                 No. 338425
                                                                  Ingham Circuit Court
TIMOTHY COURDRE MATTHEWS,                                         LC No. 16-000631-FH

              Defendant-Appellant.


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

PER CURIAM.

        Defendant, Timothy Courdre Matthews, appeals as of right his conviction by a jury of
assault with a dangerous weapon (felonious assault), MCL 750.82(1). Defendant was sentenced
to six months in jail and a 24-month period of probation.1 We affirm.

        Defendant’s conviction arises from an incident that occurred at Happy’s Pizza in
Lansing, Michigan, on June 30, 2016. According to Lakeshia Acree, an employee at the
restaurant, defendant was a regular customer who often returned to complain after receiving his
pizza order. On that day, after earlier purchasing a pizza, defendant entered the restaurant
brandishing a golf club, apparently disgruntled about his pizza. Acree testified that defendant
jumped over the service counter near Acree. As the customers ran from the store, defendant
walked past Acree toward where the other employees were working and yelled “[W]ho made my
pizza?” Defendant then confronted employee Bryann Lee, stating “[Y]ou’re the one that messed
up my food.” Defendant was holding the golf club in a “batter’s position.” Lee testified that he
put his hands up in a defensive position because he feared being hit by the golf club. Defendant
swung the golf club at Lee, who jumped back. Defendant’s swing missed Lee, but the golf club
struck a microwave. Lee and Acree both ran from the restaurant, and the door locked behind
them. Defendant broke the window of the restaurant’s door with the golf club and kicked the


1
  Defendant was also convicted of one count of malicious destruction of a building causing
damage or injury between $200 and $1000, MCL 750.380(4)(a), and one count of malicious
destruction of personal property valued less than $200, MCL 750.377a(1)(d), and the sentence
imposed was for the three convictions. Defendant does not challenge these convictions on
appeal.


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remaining glass from the door, then left the restaurant. Lee testified that as defendant broke the
door and left the restaurant, he was afraid of what defendant would do and therefore moved
farther away. After leaving the restaurant, defendant broke the passenger-side window of
Acree’s car and dented the car door with the golf club before driving away.

        Defendant was convicted of felonious assault with respect to Lee, but was acquitted of a
second charge of felonious assault with respect to Acree. Defendant was also convicted of two
counts of malicious destruction of property. On appeal, defendant challenges only his conviction
of felonious assault, arguing that there was insufficient evidence to support the conviction. We
disagree.

        We review a challenge to the sufficiency of the evidence presented at trial de novo,
viewing the evidence in a light most favorable to the prosecution, to determine whether a rational
fact-finder could find that the essential elements of the crime were proven beyond a reasonable
doubt. People v Ericksen, 288 Mich App 192, 195-196; 793 NW2d 120 (2010). In doing so, we
draw all reasonable inferences in support of the jury verdict, People v Nowack, 462 Mich 392,
400; 614 NW2d 78 (2000), and resolve all conflicts in the evidence in favor of the prosecution.
People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).

       MCL 750.82(1), the felonious assault statute, provides that “a person who assaults
another person with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other
dangerous weapon without intending to commit murder or to inflict great bodily harm less than
murder is guilty of a felony. . . .” The elements of felonious assault are “(1) an assault, (2) with a
dangerous weapon, and (3) with the intent to injure or place the victim in reasonable
apprehension of an immediate battery.” People v Bosca, 310 Mich App 1, 20; 871 NW2d 307
(2015), quoting People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999).

        The first element, an assault, is demonstrated by showing “either an attempt to commit a
battery or an unlawful act which places another in reasonable apprehension of receiving an
immediate battery . . . .” People v Johnson, 407 Mich 196, 210; 284 NW2d 718 (1979)
(quotation marks and citation omitted). Thus, to satisfy the assault element of felonious assault,
the prosecution need only have proved that defendant either attempted to commit a battery, or
placed Lee in reasonable apprehension of receiving an immediate battery. Here, the prosecution
presented sufficient evidence to satisfy this element. According to the testimony at trial,
defendant jumped over the service counter of the restaurant while brandishing a golf club,
demanding to know who had made his pizza. Defendant then made his way to the back of the
restaurant holding the golf club over his shoulder in a “batter’s position,” accused Lee of having
“messed up [his] food,” and swung the golf club at Lee. Lee jumped back, and the golf club
missed him but hit a microwave instead. From this evidence a rational fact-finder could infer
that had Lee not stepped out of the way of defendant’s swing, the golf club would have hit him,
and not the microwave, and thus defendant was attempting a battery on Lee. Defendant’s
contention that he merely sought to destroy the restaurant’s property, and not commit an assault,
is not supported by the facts, given defendant’s statement to Lee immediately before he swung
the golf club evidencing that defendant’s aggression was directed at the person who made his
pizza.



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        A rational fact-finder also could find that Lee was placed in reasonable apprehension of
receiving an immediate battery. Lee testified that after being confronted by defendant, he raised
his hands in fear because he thought defendant might hit him with the golf club. Acree testified
that defendant then swung the golf club in Lee’s direction and that Lee moved out of the way to
avoid the golf club swing. Lee then fled the restaurant to avoid defendant, and moved farther
away when defendant followed the employees outside. This evidence, viewed in a light most
favorable to the prosecution, is sufficient to show that defendant attempted to commit a battery,
and in doing so placed Lee in reasonable apprehension of receiving an immediate battery.
Defendant’s presence in a non-public area of the restaurant, his threatening posture while holding
a golf club, the golf club swing toward Lee, destruction of a glass door to follow the employees
outside, destruction to Acree’s vehicle with the golf club, and Lee’s testimony that he was afraid,
would permit a reasonable trier of fact to conclude that Lee was in reasonable apprehension of
receiving an immediate battery.

        The second element, that the object used in the assault was a dangerous weapon, was also
supported by sufficient evidence. A dangerous weapon is defined as “a pistol or other firearm, or
a pneumatic gun, dagger, dirk, razor, stiletto, or knife having a blade over 3 inches in length, or
any other dangerous or deadly weapon or instrument” carried with the intent to unlawfully use
the weapon against another person. MCL 750.226; see also Bosca, 310 Mich App at 21. A
dangerous weapon can also be “ ‘an instrumentality which, although not designed to be a
dangerous weapon, is used as a weapon and, when so employed, is dangerous.’ ” Id., quoting
People v Barkley, 151 Mich App 234, 238; 390 NW2d 705 (1986). Viewing the evidence in a
light most favorable to the prosecution, defendant’s golf club fits this definition. Using the golf
club, defendant broke a microwave, broke through a glass door, and shattered a vehicle window.
The damage caused by the golf club evidences the effectiveness and potential harm the object
poses. Further, defendant’s actions with the golf club demonstrated his intent to unlawfully use
the weapon against another person.

        The third element of felonious assault is the intent to injure or place the victim in
reasonable apprehension of an immediate battery. We note that intent can be inferred from a
defendant’s conduct. People v Parcha, 227 Mich App 236, 239; 575 NW2d 316 (1998). Here,
defendant’s actions evidence his intent: defendant entered the restaurant brandishing a golf club
in an aggressive fashion, he jumped over the service counter of the establishment, found his way
to the back of the restaurant, accused Lee of having “messed up” his pizza, and proceeded to
swing the club in Lee’s direction. After Lee and Acree fled the store, defendant broke through a
locked glass door with the golf club to follow the employees into the parking lot. A rational trier
of fact could find on these facts that defendant carried a dangerous weapon with the requisite
intent to injure Lee or place him in reasonable apprehension of an immediate battery.

        We reject defendant’s contention that the evidence was insufficient because it was
circumstantial. Circumstantial evidence, and the reasonable inferences arising from that
evidence, can constitute sufficient evidence to prove the elements of a crime. Nowack, 462 Mich
at 400. But in this case, defendant’s conviction rests in large part upon direct evidence, such as
eyewitness testimony and photographic evidence of defendant taken by the restaurant’s security
camera and showing, for example, defendant in the restaurant leaping over the counter with a
golf club. We also reject defendant’s argument that because the jury found the evidence
insufficient to convict him of assault upon Acree, the evidence could not support a conviction for

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assault upon Lee. Defendant’s actions toward Lee were different than his actions toward Acree.
Defendant singled Lee out as the person whom defendant believed had made his pizza, and
directed the attack with the golf club specifically at Lee. We therefore find no inconsistency in
the jury finding that the evidence demonstrated an assault upon Lee, but not upon Acree.

       Affirmed.



                                                           /s/ Patrick M. Meter
                                                           /s/ Michael F. Gadola
                                                           /s/ Jonathan Tukel




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