(concurring). I agree with Judge Kelly and write separately to place in perspective the underlying facts of this case.
*235Defendant was convicted of assault on a prison employee. MCL 750.197(c); MSA 28.394(3).1
During its opening statement, the prosecution told the jury that the prosecution was required to prove beyond a reasonable doubt, that defendant was a person lawfully imprisoned in a jail or other place of confinement. Then, during its closing arguments, the prosecution argued that defendant was an inmate who was lawfully confined at the maximum security facility and that it seemed unlikely that somebody would be confined other than in a lawful manner.2 Defendant argued that he was not required to prove anything3 and that there was no evidence of lawful *236confinement.4
While some of the witnesses referred to the defendant as a “prisoner” or “inmate,” the prosecution curiously failed to offer into evidence any proof that defendant was lawfully imprisoned. The defendant was not present during the trial, did not testify, and did not offer any evidence.5
Finally, the jury was instructed by the trial court that one of the elements of the charge required that the prosecution prove that defendant was lawfully confined.6
Defendant was convicted and immediately stood trial before the same jury, again in absentia, as a fourth-offense habitual offender.
At the habitual offender stage of the proceedings, the prosecution brought forward six exhibits, consisting of four fingerprint records and two certified records of defendant’s previous convictions. When confronted with the fact that it was unable to produce a certified record of an October 14, 1982, con*237viction, the prosecution withdrew that charge and went to the jury on the charge of being a third-offense habitual offender rather than being a fourth-offense habitual offender, which had been originally charged.7 The jury then returned a verdict finding defendant guilty of being an habitual offender, third offense.
This case raises the question: What evidence is sufficient to support a finding that a person has been lawfully incarcerated? Restated in the context of the proofs presented in this case: Is the incarcerated status of an individual sufficient evidence that the incarceration was lawful? The answer to that question is no. People v Hamaker 92 Mich 11; 52 NW 82 (1892). Sufficiency of evidence is reviewed to determine, on the basis of all the evidence viewed in a light most favorable to the prosecution, if a reasonable trier of fact could conclude that all required elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979), reh den 407 Mich 1164 (1980), cert den 449 US 885; 101 S Ct 239; 66 L Ed 2d 110 (1980).
Both the prosecution and the defense recognized during their opening and closing statements the necessity of proof that the incarceration was lawful, as did the trial court in its instructions.
In a criminal case, the prosecution is required to introduce evidence sufficient to establish each element of the crime charged beyond a reasonable *238doubt. “The law is clear that the prosecution has the burden of proving each and every element of a charged offense beyond a reasonable doubt.” People v Taylor, 176 Mich App 374, 376; 439 NW2d 370 (1989). The legality of the incarceration is an element of this offense. Just as it was improper for the trial judge in Taylor to take judicial notice of the necessary elements of an offense, it is improper not to require the prosecution to prove the necessary elements before the jury in this case. While I do not suggest that a jury leave its common sense on the steps of the courthouse, proof of incarceration does not denote the legality of the incarceration.8
The term “lawfully imprisoned” is contained within the statute of assault on a prison employee, making lawfulness an element of the offense. Unlike statutes in which the Legislature chose not to make the lawfulness of confinement an element of the offense, the issue must then be raised by the defendant at trial,9 the Legislature included the lawfulness of confinement as an element of assault on a prison employee, placing the burden on the prosecution.
The prosecution has available to it many avenues by which it may prove that an individual has been lawfully incarcerated. Some are more cumbersome to navigate than others. For instance, it may elect to bring forward witnesses who were present at the time a sentence was imposed, or those who were present when an individual was otherwise confined by lawful *239authority. Others may take the more convenient route of simply producing a certified record of the sentence or other commitment.
Here, the prosecution waited until the trial of the habitual charge to come forward with certified copies of defendant’s prior convictions and sentences. The record offers no explanation why these documents were not offered as evidence of lawful incarceration in the trial of the underlying assault charge. Otherwise, the evidence in this case was overwhelming. A complete reading of the transcript demonstrates the difficulty that both the prison system and the courts have had in their dealings with defendant. It is unfortunate that the prosecution’s failure to offer available evidence dictates this result.
A person lawfully imprisoned in a . . . place of confinement established by law for any term, or lawfully imprisoned ... for a crime or offense, or charged with a crime or offense who, . . . through the use of violence, . . . assaults an employee of the place of confinement. . . knowing the person to be an employee ... is guilty of a felony.
You’re being asked to determine, was Mr. Gaines lawfully confined at the Ionia Maximum Security Facility. Well, Mr. Gaines was in the courtroom. He was transported by the transport officers. The witnesses that testified said that he occupied a cell at I-Max ....
Your common sense would tell you that he was lawfully confined at the maximum security facility. It seems extremely unlikely that somebody would not be confined in a lawful manner, at I-Max, and I would ask you to use your common sense and that we have proven to you that he was confined at I-Max, and that he’s been there and that’s how he got to the courtroom here today.
That argument is basically ridiculous. He was a prisoner at the time of the assault and he remains a prisoner at this time and I’m asking you to consider that and use your common sense.
That gets back to lack of evidence. Mr. Gaines doesn’t have to prove anything. Always keep that in mind. Now, the specific statute with which Mr. Gaines is charged states that Mr. Gaines, being a person lawfully confined or lawfully imprisoned, did assault an employee of the place of confinement.
What proof was there that Mr. Gaines was lawfully confined at the Ionia Maximum Facility? Sure he was here. Sure the transportation officers were with him, but the Prosecutor still has the burden to prove beyond a reasonable doubt that he was lawfully or is lawfully confined and there was absolutely no evidence presented on that issue.
Defendant was brought into the courtroom in handcuffs, belly chains, and leg irons. The prosecution insisted that he remain shackled during the trial, even though the corrections officers indicated that they thought they could control him with just the leg irons. Following other colloquy, defendant was allowed to return to the prison, during which time the trial proceeded without him being present.
Now to prove this charge, the Prosecutor must prove each of the following elements beyond a reasonable doubt. First, that the defendant was confined at the Ionia Maximum Facility, lawfully confined.
Second, that he was legally confined there.
[W]e do need to supply proof of that conviction to this Court and we’ve been unable to do so — and upon reviewing the law, it does require me to do so. So I’m not going to offer any objection to defense Counsel’s motion as to that particular prior conviction.
See People v Hamaker, 92 Mich 11; 52 NW 82 (1892); see also Cross v Dep’t of Corrections, 103 Mich App 409; 303 NW2d 218 (1981); People v Alexander, 39 Mich App 607; 197 NW2d 831 (1972).
People v Hurst, 59 Mich App 441; 229 NW2d 492 (1975), referencing prison escape, MCL 750.193; MSA 28.390.