                          STATE OF MICHIGAN

                           COURT OF APPEALS
In re FRAZIER, Minor.


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 7, 2017
              Petitioner-Appellee,

v                                                                  No. 334850
                                                                   Wayne Circuit Court
                                                                   Family Division
DWIGHT FRAZIER,                                                    LC No. 16-522322-DL

              Respondent-Appellant.


Before: GLEICHER, P.J., and GADOLA and O’BRIEN, JJ.

PER CURIAM.

        The family division of the Wayne Circuit Court adjudicated Dwight Frazier responsible
for assault and battery, MCL 750.81, and creating a disturbance in school, Detroit Ordinance, §
38-7-2, following a bench trial. The trial court placed Dwight on intensive probation in his
parents’ home. Dwight now challenges his adjudication on the assault and battery charge alone.
We discern no error and affirm.

                                      I. BACKGROUND

        Dwight’s troubles began when he got into a fight with another student in his fifth grade
classroom. Dwight’s teacher, Beverly Robinson, had briefly gone next door to ask another
teacher, Valerie Searles, for assistance. In Robinson’s absence, Dwight began to attack another
child. Robinson testified that she grabbed Dwight by “the back of his shirt and arms” to stop the
fight. Robinson described that as she pulled Dwight into the hallway, Dwight shouted
profanities at her and once in the hallway, punched her in the shoulder or chest. Robinson and
the school’s janitor responded by pushing Dwight against a locker. Robinson denied grabbing
Dwight by the neck.

        Searles saw Dwight “bec[o]me irate” when Robinson broke up his fight with Timothy.
Searles did not follow Robinson and Dwight into the hallway, however, and did not see Dwight
punch Robinson. Ronita Thomas, a teacher across the hall, testified that she went into the
classroom when she heard the commotion. Thomas saw Dwight’s fist hit Robinson in the side of
the face when he jumped off of a desk during his attack on the other student. Thomas did not see
what happened once Robinson removed Dwight to the hallway.


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        The prosecutor’s office filed a petition charging Dwight with assault and battery and
creating a disturbance in a school. At trial, Dwight did not contest that he created a disturbance,
but he argued that Robinson grabbed and choked him in the hallway and he punched Robinson
while defending himself. The trial court rejected this defense and found beyond a reasonable
doubt that Dwight committed an assault and battery against Robinson and created a disturbance
at school.

                                       II. SELF-DEFENSE

        Dwight contends that there was insufficient evidence that he committed assault and
battery because the prosecution did not prove beyond a reasonable doubt that he did not act in
self-defense. On appeal, Dwight changes his theory from that raised in the trial court. Dwight
now claims that he acted in self-defense because “Robinson was the aggressor” as she grabbed
him by the shirt and arm.

       The availability of an affirmative defense is a legal question that we review de novo.
People v Dupree, 486 Mich 693, 702; 788 NW2d 399 (2010). We review the trial court’s
underlying factual findings for clear error, reversing only if we are “left with a definite and firm
conviction that a mistake has been made.” People v Wilkens, 267 Mich App 728, 732; 705
NW2d 728 (2005) (quotation marks and citation omitted).

       [The] affirmative defense of self-defense justifies otherwise punishable criminal
       conduct . . . if the defendant honestly and reasonably believes his life is in
       imminent danger or that there is a threat of serious bodily harm and that it is
       necessary to exercise deadly force to prevent such harm to himself. [Dupree, 486
       Mich at 707 (quotation marks and citation omitted).]

“[T]he prosecution bears the burden of disproving the common law defense of self-defense
beyond a reasonable doubt” once respondent “produc[es] some evidence from which a jury could
conclude that the elements necessary to establish a prima facie defense of self-defense exist[.]”
Id. at 709-710.

        The evidence substantiated that Robinson grabbed Dwight by the back of his shirt and his
arm to pull him away from the student Dwight was physically attacking. Dwight does not
claim that his life was in imminent danger or that he feared serious bodily harm from the
particular force applied by Robinson. He also does not identify the danger imposed or harm
threatened by Robinson removing him from a fight. Dwight simply cannot justify his use of
force. As Dwight did not produce evidence of an honest and reasonable belief that he faced
serious harm, he never triggered the prosecutor’s duty to disprove self-defense.

        Dwight argues that Robinson’s testimony was inconsistent, impeding his ability to
establish his defense. We will not disturb the factfinder’s credibility determinations or resolution
of conflicting evidence. People v Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008).
However, we note that Robinson did testify at one point, “I didn’t touch him at all.” This
statement was in response to the question: “Did you ever pick him up at all by his neck[.]” The
trial court reasonably concluded that Robinson’s absolute language responded only to the
question asked and not to the entirety of her contact with Dwight.

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        Dwight further contends that his self-defense claim is supported by the fact that neither
Searles nor Thomas saw him punch Robinson in the shoulder or chest as Robinson described.
Again, this goes to credibility and we will not interfere with the factfinder’s judgment in this
regard. In any event, Thomas’s testimony is even more damaging than Robinson’s. Thomas saw
Dwight punch Robinson in the face before Robinson even grabbed him to pull him away from
the fight.

                            III. SUFFICIENCY OF THE EVIDENCE

        Dwight argues that the prosecutor presented insufficient evidence to support his
adjudication for assault and battery because he touched Robinson accidentally, rather than
intentionally. We review “a challenge to the sufficiency of the evidence in a bench trial de novo
and in a light most favorable to the prosecution to determine whether the trial court could have
found that the essential elements of the crime were proved beyond a reasonable doubt.” Wilkens,
267 Mich App at 738 (quotation marks and citation omitted). Conflicting evidence “must be
resolved in favor of the prosecution.” Id.

        MCL 750.81(1) proscribes assault and battery. A battery is “an intentional, unconsented
and harmful or offensive touching of the person of another[.]” People v Cameron, 291 Mich
App 599, 614; 806 NW2d 371 (2011) (quotation marks and citation omitted). An assault is “an
attempt to commit a battery or an unlawful act that places another in reasonable apprehension of
receiving an immediate battery.” Id.

        Robinson’s statements support the trial court’s finding that Dwight committed assault and
battery by intentionally striking her.1 Robinson testified that Dwight hit her once in the shoulder
or chest. Although some of the details in Robinson’s written statement conflict with her
testimony, she consistently stated that Dwight purposefully punched her in the shoulder or chest.

        Dwight notes that Searles testified that he appeared to be pulling away from Robinson
and that she did not see Dwight hit Robinson. Dwight suggests that Searles’ observation of the
struggle supports his theory that he accidentally hit Robinson. However, Dwight allegedly




1
  While the trial court erroneously credited a statement to Thomas that Dwight punched
Robinson on the shoulder, this error does not warrant reversal because Robinson’s testimony
alone sufficiently supported Dwight’s adjudication.


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punched Robinson in the chest or shoulder in the hallway. Searles’ testimony does not contradict
this version of events. And again, we will not disturb the factfinder’s resolution evidentiary
conflicts. See Unger, 278 Mich App at 222.

       We affirm.



                                                           /s/ Elizabeth L. Gleicher
                                                           /s/ Michael F. Gadola
                                                           /s/ Colleen A. O'Brien




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