                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    April 27, 2017
               Plaintiff-Appellee,

v                                                                   No. 330327
                                                                    Wayne Circuit Court
TONYA MALLETT-RATHELL, also known as                                LC No. 15-005035-01-FH
TONYA YVONNE MALLET-RATHELL, also
known as TONYA RATHELL, and also known as
TONYA AUBERT,

               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




1
  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.


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