PEOPLE OF MI V LORA JUNIOR HUDDLESTON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 12, 2009
Plaintiff-Appellee,
v
No. 285961
Berrien Circuit Court
LC No. 2007-405687-FH
LORA JUNIOR HUDDLESTON,
Defendant-Appellant.
Before: Servitto, P.J., and Bandstra and Markey, JJ.
PER CURIAM.
Defendant appeals by right his jury trial conviction of assaulting a jail employee, MCL
750.197c. Defendant was sentenced as an habitual offender, fourth offense, MCL 769.12, to 4 to
15 years’ imprisonment. We affirm.
Defendant first contends that there was insufficient evidence to sustain his conviction.
We review a challenge to the sufficiency of the evidence de novo. People v Lueth, 253 Mich
App 670, 680; 660 NW2d 322 (2002). In determining whether the prosecution has presented
sufficient evidence to sustain a conviction, we construe the evidence in a light most favorable to
the prosecution and consider whether there was sufficient evidence to justify a rational trier of
fact in finding all of the elements of the crime beyond a reasonable doubt. People v Wolfe, 440
Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992).
MCL 750.197c, provides in relevant part, “[a] person lawfully imprisoned in a jail, . . .
who . . . through the use of violence, threats of violence or dangerous weapons, assaults an
employee of the place of confinement . . . knowing the person to be an employee . . . is guilty of
a felony . . . .”
To support a conviction of assault of an employee of a place of confinement, the
prosecution must prove that the defendant: (1) was lawfully imprisoned in a place
of confinement; (2) used violence, threats of violence, or dangerous weapons to
assault an employee of the place of confinement or other custodian; and (3) knew
that the victim was an employee or custodian. [People v Neal, 232 Mich App
801, 802; 592 NW2d 92 (1998), adopted by special panel 233 Mich App 649; 592
NW2d 95 (1999).]
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The first element is not at issue in this case. The second element involves two separate
inquiries: first, whether defendant acted with “violence” within the meaning of the statute, and
second, whether defendant committed an assault against an employee. A simple assault may be
committed either by an attempt to commit a battery or by an unlawful act that places another in
reasonable apprehension of receiving an immediate battery. People v Terry, 217 Mich App 660,
662; 553 NW2d 23 (1996). “A battery is an intentional, unconsented and harmful or offensive
touching of the person of another, or of something closely connected with the person.” People v
Reeves, 458 Mich 236, 240 n 4; 580 NW2d 433 (1998).
We conclude the evidence was sufficient to allow a rational trier of fact to find beyond a
reasonable doubt that defendant acted with violence under the statute when he threw feces and
urine at Sergeant John McCoy. See People v Boyd, 102 Mich App 112; 300 NW2d 760 (1980)
(throwing a container of liquid presumed to be urine amounted to violence under the statute);
Terry, supra at 662-663 (spitting in the face of an officer amounted to violence under the
statute). We also find that there was sufficient evidence to allow a rational jury to conclude
beyond a reasonable doubt that defendant committed an assault against McCoy, an employee of
the jail. Three deputies and McCoy testified that McCoy was hit with fecal matter and urine,
which is an offensive touching. See Terry, supra at 663, and Boyd, supra at 117. Additionally,
evidence showed defendant acted with intent because he was aware the deputies were prepared
to enter his cell. McCoy instructed defendant to turn and face the back wall of the cell and
defendant refused. Other testimony established that the officers warned defendant they were
going to enter his cell, and officers instructed defendant to stop throwing feces. After deputies
entered the cell, however, defendant took time to scoop fecal matter and urine out of the sink and
throw it in the exact location where McCoy was standing, evincing that he acted with intent.
Although defendant testified otherwise, this Court will not interfere with the factfinder’s role of
determining the weight of evidence or credibility of witnesses. Wolfe, supra at 514-515.
Finally, the evidence was more than ample for the jury to reasonably infer that defendant
knew that the assault victims were jail employees. McCoy and three other deputies testified that
all the officers involved in the incident were in full uniform. “[A] reviewing court is required to
draw all reasonable inferences and make credibility choices in support of the jury verdict.”
People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). In sum, we find the prosecutor
presented sufficient evidence to allow a rational trier of fact to conclude beyond a reasonable
doubt that defendant assaulted McCoy within the meaning of MCL 750.197c.
Next, defendant contends that the trial court denied him his right to due process and a fair
trial by admitting other-acts evidence, improperly instructing the jury, and failing to “control the
prosecutor.” We review each of the alleged instances of error separately.
The trial court admitted evidence of an incident that occurred in 2006 at the Berrien
County Jail, during which defendant used a Styrofoam cup to throw feces into the face of a
deputy as the deputy attempted to serve him lunch. The trial court admitted the evidence to show
common scheme, plan or system and to show motive and intent. MRE 404(b). We review a trial
court’s decision to admit evidence for an abuse of discretion. People v Crawford, 458 Mich 376,
383; 582 NW2d 785 (1998).
In order for evidence of a defendant’s other crimes, wrongs, or bad acts to be admissible
pursuant to MRE 404(b), the evidence must meet the following requirements: 1) it must be
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offered for a proper purpose; 2) it must be relevant; 3) the probative value of the evidence must
not be substantially outweighed by the danger of unfair prejudice; and 4) the trial court may
provide a limiting instruction. People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993),
amended 445 Mich 1205 (1994). In this case, evidence of the 2006 assault shares significant
common features with the charged offense and shows defendant effectuated both assaults in a
unique and distinctive manner. In both instances defendant was incarcerated at the Berrien
County Jail and both times he saved feces and urine in containers inside his jail cell and waited
for the opportunity to throw it at a deputy. Additionally, in both instances, defendant was angry.
The similarities of the other-acts evidence and the charged offense in this case share a
“‘concurrence of common features’” such that they are “‘naturally to be explained as caused by a
general plan of which they are individual manifestations.’” People v Sabin (After Remand), 463
Mich 43, 64-65; 614 NW2d 888 (2000), quoting 2 Wigmore, Evidence (Chadbourn rev), § 304, p
249. The evidence was logically relevant to show common scheme, plan or system. In addition,
the other acts evidence was logically relevant to show defendant intended to throw the feces at
the deputies. Finally, the probative value of the other-acts evidence was not substantially
outweighed by the danger of unfair prejudice. “Evidence is unfairly prejudicial when there
exists a danger that marginally probative evidence will be given undue or preemptive weight by
the jury.” Crawford, supra at 398. In this case, the evidence was more than marginally
probative; the trial court also provided a limiting instruction to the jury. In sum, the trial court
did not abuse its discretion in admitting the challenged evidence pursuant to MRE 404(b).
With regard to defendant’s contention that the trial court improperly instructed the jury,
we conclude that defendant waived appellate review of this argument because his defense
counsel affirmatively indicated that he had no objection to the instructions. Lueth, supra at 688.
Where there is waiver, there is no error to review. People v Carter, 462 Mich 206, 215; 612
NW2d 144 (2000). Even were we to review defendant’s argument, it lacks merit. Specifically,
defendant argues that the trial court failed to instruct the jury according to the language of MCL
750.197c that it find he assaulted the deputy “through the use of violence, threats of violence or
dangerous weapons.” Jury instructions must be reviewed in their entirety and, even if imperfect,
do not require reversal if they sufficiently protect the defendant’s rights by fairly presenting the
issues being tried. People v Canales, 243 Mich App 571, 574; 624 NW2d 439 (2000). In this
case, the trial court instructed the jury that a “battery” is a “forceful, or violent, or offensive
touching.” The trial court also informed the jury that defendant had to intend to commit a battery
or place McCoy in fear of an imminent battery. Therefore, we conclude that the trial court
effectively informed the jury that defendant must have intended a forceful, violent, or offensive
touching, or intended to place McCoy in fear of an imminent battery. The court’s instructions
fairly presented the issues being tried and protected defendant’s rights. Id.
Defendant did not preserve his argument that the trial court erred in failing to “control the
prosecutor,” which we review for plain error affecting substantial rights. People v Carines, 460
Mich 750, 763; 597 NW2d 130 (1999). As discussed, infra, the prosecutor did not commit
misconduct that denied defendant his right to a fair trial; therefore, defendant cannot show that
the trial court committed any error in this regard that affected his substantial rights. Id.
Next, defendant contends the prosecutor made four statements that denied him his right to
a fair trial and his constitutional right to due process. Defendant did not preserve this issue for
appellate review because he did not make timely and contemporaneous objections to the
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challenged statements. People v Callon, 256 Mich App 312, 329; 662 NW2d 501 (2003). This
Court reviews unpreserved claims of prosecutorial misconduct for outcome-determinative plain
error. Id. Pursuant to the plain-error standard, a defendant must show: 1) that an error occurred,
2) the error was plain, 3) and the plain error affected substantial rights in that it affected the
outcome of the lower court proceedings. Carines, supra. After reviewing the alleged improper
statements, we find that defendant has failed to show plain error affecting his substantial rights.
Specifically, defendant first contends that the prosecutor improperly referenced facts not
in the record when the prosecutor stated during closing argument that defendant did not like
being in jail and that he was going to “punish” the deputies by throwing feces at them.
“Prosecutors cannot make statements of fact unsupported by the evidence, but remain free to
argue the evidence and all reasonable inferences arising from it as they relate to the theory of the
case.” People v Schultz, 246 Mich App 695, 710; 635 NW2d 491 (2001). “The prosecutor’s
comments must be considered as a whole and evaluated in light of defense arguments and the
relationship they bear to the evidence admitted at trial.” Id. In this case, the prosecutor merely
stated his theory of the case and a reasonable inferences arising from the evidence. Id. Also, the
prosecutor’s statement was a proper response to defense counsel’s closing argument that
defendant did not intentionally throw feces at the deputies, but rather he acted to keep “the walls
from closing in.” Id.; Callon, supra at 330.
Second, defendant alleges that the prosecutor improperly appealed to the jury’s “civic
duty” to obtain a verdict and injected sympathy into the proceedings when he argued that the
deputies have a difficult job and did not deserve to have feces thrown at them and by arguing that
being hit with feces is disgusting. It is improper for a prosecutor to appeal to the jury to
sympathize with a victim or to urge the jury to convict as part of its civic duty. People v Unger,
278 Mich App 210, 237; 749 NW2d 272 (2008). In this case, it was improper for the prosecutor
to reference the difficulty of the deputies’ responsibility at the jail because it interjected issues
broader than guilt or innocence. People v McGhee, 268 Mich App 600, 636; 709 NW2d 595
(2005). But this remark was brief and isolated, and the trial court instructed the jury that,“[t]he
lawyers’ statements and arguments are not evidence” and that, “[y]ou must not let sympathy or
prejudice influence your decision.” Because the prejudicial effect of most improper
prosecutorial statements can be eliminated by a curative instruction, and because jurors are
presumed to follow their instructions, defendant cannot show that plain error affected his
substantial rights. Unger, supra at 235. The prosecutor’s statement describing defendant’s act
of throwing feces and urine into McCoy’s face and mouth as “violent, disgusting, revolting or
humiliating” was “permissible commentary on the evidence and the inferences drawn from the
evidence.” McGhee, supra.
Third, defendant contends that the prosecutor impermissibly shifted the burden of proof
when he argued that defendant was “using that stuff about the walls moving in as an excuse. He
could’ve brought a doctor in here to say that he has those problems and he didn’t.” A prosecutor
may not attempt to shift the burden of proof to defendant by commenting on defendant’s failure
in general to present evidence. People v Abraham, 256 Mich App 265, 273; 662 NW2d 836
(2003). However, “[w]here a defendant testifies at trial or advances, either explicitly or
implicitly, an alternate theory of the case that, if true, would exonerate the defendant, comment
on the validity of the alternate theory cannot be said to shift the burden of proving innocence to
the defendant.” People v Fields, 450 Mich 94, 115; 538 NW2d 356 (1995). In this case,
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defendant advanced an alternative theory of the case at trial that he needed to spread feces on the
wall of his cell because of a mental condition. If the jury were to believe this theory, it would
have accepted that defendant did not act with the intent to assault McCoy. Id. The prosecutor’s
remark was a proper comment on the validity of defendant’s theory and did not shift the burden
of proof in this case. Callon, supra at 331. “‘[I]t is not error to comment on the failure of the
defense to produce evidence on a phase of the defense upon which the defendant seeks to rely.’”
Fields, supra at 111 n 21, quoting United States v Bright, 630 F2d 804, 825 (CA 5, 1980).
Fourth, defendant contends that the prosecutor improperly asked him to comment on the
credibility of witnesses when he asked defendant if he believed the officers lied during their
testimony. It is improper for a prosecutor to ask a defendant to comment on the credibility of
other witnesses because the defendant’s opinion is not relevant to the fact finder’s determination
of witness credibility. People v Knapp, 244 Mich App 361, 384; 624 NW2d 227 (2001).
Although the prosecutor improperly questioned defendant as to whether he believed the deputies
were dishonest in their testimony, defendant has failed to show that the improper questioning
amounted to plain error affecting his substantial rights. Carines, supra at 763. On direct
examination, defendant himself accused the deputies of lying; the prosecution’s questions were
isolated, and there was overwhelming evidence in this case that would allow a rational trier of
fact to conclude beyond a reasonable doubt that defendant committed the charged offense. Any
error did not affect defendant’s substantial rights because it did not affect the outcome of the
lower court proceedings. Id.
Defendant next contends that he was denied the effective assistance of counsel when his
counsel failed to object to any of the alleged errors that he raises on appeal. Defendant failed to
preserve the issue of whether he was denied the effective assistance of counsel for review
because he did not move in the lower court for a new trial or an evidentiary hearing. People v
Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). This Court’s review is therefore limited to
mistakes apparent on the record. Id. “Whether a person has been denied the effective assistance
of counsel is a mixed question of fact and constitutional law.” People v LeBlanc, 465 Mich 575,
579; 640 NW2d 246 (2002). We review a trial court’s findings of fact for clear error and
questions of constitutional law de novo. Id.
In order to demonstrate that he was denied the effective assistance of counsel a defendant
must first show that trial counsel’s performance was “deficient,” and second, a defendant must
show that the “deficient performance prejudiced the defense.” People v Carbin, 463 Mich 590,
599-600; 623 NW2d 884 (2001). Whether defense counsel’s performance was deficient is
measured against an objective standard of reasonableness. People v Toma, 462 Mich 281, 302;
613 NW2d 694 (2000). To prove prejudice, the defendant must demonstrate the existence of a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. Id. at 302-303.
Defense counsel objected to admission of the other-acts evidence at trial; however, he did
not object to the jury instructions, any of the alleged improper statements made by the
prosecutor, and he failed to object to the scoring of two offense variables raised in defendant’s
sentencing issue infra. As discussed already, defendant has failed to show that the prosecutor’s
conduct amounted to plain error affecting his substantial rights. Therefore, he cannot show that
defense counsel’s failure to object to the statements, or to the trial court’s failure to control the
prosecutor, prejudiced his defense by affecting the outcome of the lower court proceedings.
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Toma, supra at 302-303. With regard to defense counsel’s failure to object to the jury
instructions, defense counsel’s performance did not fall below an objective standard of
reasonableness because, as discussed supra, the trial court did not err in instructing the jury. Id.
Similarly, defense counsel’s failure to object to the scoring of offense variable (OV) 1 and OV
19 was not below an objective standard of reasonableness because, as discussed infra, we find
these variables were properly scored. See Knapp, supra at 386 (a defense counsel is not required
to advocate a meritless position or make a frivolous objection).
Finally, defendant contends that the trial court erroneously scored OV 1, OV 9, and
OV 19. We review “a sentencing court’s scoring decision to determine whether the trial court
properly exercised its discretion and whether the record evidence adequately supports a
particular score.” People v McLaughlin, 258 Mich App 635, 671; 672 NW2d 860 (2003).
“Scoring decisions for which there is any evidence in support will be upheld.” People v Endres,
269 Mich App 414, 417; 711 NW2d 398 (2006). Additionally, we review the interpretation of
the applicable statutes de novo. Id.
MCL 777.31 governs the scoring of OV 1. Twenty points are scored if “[t]he victim was
subjected or exposed to a harmful biological substance . . . .” Pursuant to the statute “harmful
biological substance” is defined according to MCL 750.200h which defines the phrase as a
“bacteria, virus, or other microorganism or a toxic substance derived from or produced by an
organism that can be used to cause death, injury, or disease in humans . . . .” The trial court
scored OV 1 at 20 points, and defense counsel affirmatively indicated on the record that he did
not have any objection to the score. Defendant has therefore waived review of the scoring of
OV 1. Carter, supra at 214-215. Moreover, defendant’s argument lacks merits. We take
judicial notice of the fact that human fecal matter contains harmful bacteria that could cause
disease in another human being, and conclude that it amounts to a “harmful biological
substance” for purposes of scoring OV 1. In People v Odom, 276 Mich App 407; 740 NW2d
557 (2007), this Court affirmed the trial court’s 20-point score for OV 1 where the defendant
spat HIV-infected blood on a corrections officer. The Court took judicial notice that HIVinfected blood could spread the disease, and that therefore, it was a “harmful biological
substance” under MCL 750.200h and MCL 777.31. Similarly, defendant exposed McCoy to
harmful biological substance when he threw fecal matter into the face and mouth of the deputy.
This evidence supports the trial court’s finding that defendant exposed McCoy to a “harmful
biological substance” within the meaning of MCL 777.31.
MCL 777.39 governs the application of OV 9, which is scored at ten points where two to
nine persons are placed in danger of physical injury or death. MCL 777.39. In this case, McCoy
and the three other deputies who entered defendant’s cell were placed in danger of injury
because the cell was covered in feces and urine and the deputies could have fallen on the floor or
suffered injury in subduing defendant. Also, when defendant threw the feces and urine, he could
have hit any of the deputies in the eyes or the mouth, causing them injury. In fact, two deputies
were actually hit with the feces and urine. The record evidence thus supports the trial court’s
scoring of this variable at ten points.
Finally, MCL 777.49 governs the scoring of OV 19, which requires scoring 25 points
when “[t]he offender by his or her conduct threatened the security of a penal institution . . . .”
Defendant did not object to the scoring of OV 19 at the sentencing hearing and our review is
limited to plain error affecting substantial rights. People v Kimble, 470 Mich 305, 312; 684
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NW2d 669 (2004). Here, defendant spread feces and urine all over his cell and the mixture
leaked under the cell door into the hallway. McCoy required the assistance of four other
deputies to assist in controlling defendant so that the unsanitary and risky situation could be
corrected. This diverted staff from other areas of the jail, which left the facility more susceptible
to a security breach. This evidence supports the trial court’s assessment of 25 points for OV 19.
We affirm.
/s/ Deborah A. Servitto
/s/ Richard A. Bandstra
/s/ Jane E. Markey
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