People v. Albers
| Decision Date | 26 November 2003 |
| Docket Number | Docket No. 236882. |
| Citation | 258 Mich. App. 578,672 N.W.2d 336 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Karen Sue ALBERS, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Keith J. Kushion, Prosecuting Attorney, and William E. Molner, Assistant Attorney General, for the people.
State Appellate Defender(by Gail Rodwan), for the defendant on appeal.
Before: NEFF, P.J., and FORT HOOD and BORRELLO, JJ.
DefendantKaren S. Albers appeals as of right from a conviction of involuntary manslaughter, M.C.L. § 750.321, following a jury trial.Defendant was sentenced to four to fifteen years of imprisonment, with credit for forty days served.We affirm.
Defendant was convicted of involuntary manslaughter on the basis of an incident in which her six-year-old son, Brent, obtained a lighter and started a fire in their apartment complex, resulting in the death of a twenty-two-month old child, Christopher Byers.The victim resided in another apartment within the same complex occupied by the defendant and her son.
Brent testified that he obtained a cigarette lighter from underneath a sofa cushion on which the defendant was sleeping.He further testified that he jumped onto a kitchen counter to obtain a candle that had been placed on top of the refrigerator, presumably out of his reach.He then took the candle and lighter to the bedroom of the defendant and lit the candle.Shortly thereafter, the bedroom curtains caught fire, and the fire eventually spread throughout the apartment complex.
Christopher and his parents lived in the apartment directly above the defendant's apartment.On the night of the fire, Melissa Byers, the victim's mother, awoke to find smoke in her apartment and the hallway too hot and smoke-filled to attempt an exit.Ms. Byers took her son Christopher and another child, Jeremiah, who was a guest in the apartment, to the bathroom along with a telephone to call 911.In her effort to save the children, Ms. Byers lost consciousness and was rescued by the firefighters who arrived on the scene.Christopher was taken to the hospital where his parents were informed that he had sustained permanent brain damage.Christopher died soon after the decision was made to remove him from life support.The coroner ruled the cause of death to be from "smoke inhalation and a lack of oxygen to his brain."
On appeal, defendant argues that she was denied due process because her conviction was based on legally insufficient evidence, and because the court failed to instruct the jury that it must agree on one of the prosecution's two alternative theories of guilt.The prosecution set forth two alternative theories of guilt: (1) that defendant was grossly negligent in failing to exercise ordinary care to avert dangers posed by her child, CJI2d 16.10, or (2) that defendant was grossly negligent in failing to perform a legal duty to Christopher under her lease agreement.CJI2d 16.13.However, defendant failed to object at trial to the prosecutor's alternative theories of guilt and also failed to object to the instructions given to the jury by the trial judge.
Regarding the issue of insufficient evidence to support a conviction, this Court views the evidence in the light most favorable to the prosecution to decide whether any rational fact-finder could have found that the essential elements of the crime were proven beyond a reasonable doubt.People v. Hunter,466 Mich. 1, 6, 643 N.W.2d 218(2002).To prove gross negligence amounting to involuntary manslaughter, the prosecution must establish: (1)defendant's knowledge of a situation requiring the use of ordinary care and diligence to avert injury to another, (2) her ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand, and (3) her failure to use care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.People v. McCoy,223 Mich.App. 500, 503, 566 N.W.2d 667(1997);See also,CJI2d 16.10
The evidence that defendant had knowledge of a situation requiring the use of ordinary care and diligence to avert the threatened injury to another was overwhelming.Brent testified that he had burnt the carpet many times in a prior apartment, set a bed ablaze while one of his stepfathers was sleeping on it, and he had burnt numerous holes in the carpeting of a motel in which his family was temporarily staying.Testimony at trial clearly demonstrated that defendant was aware of all of these incidences and was repeatedly warned to keep all flammable materials and incendiary devices (including cigarette lighters) out of Brent's reach.
Defendant had been warned on several occasions that she should lock up all lighters to prevent Brent from having access to them.Defendant stated that she was "not going to live like that," and "[her children] know better than to play with matches or lighters."This tragedy demonstrated that the children clearly did not know not to play with matches or lighters.Locking up the lighters and matches was a means by which defendant could have used ordinary care and diligence to prevent Brent from obtaining a lighter and thereby starting yet another fire.The evidence on this issue was, again, overwhelming.Not only did the defendant have trouble with Brent starting fires, the evidence demonstrated that her other children were prone to acts of arson as well.Against the backdrop of the clear danger that her children's firestarting proclivities posed, the defendant's repeated refusal to take necessary precautionary measures demonstrated her complete failure to acknowledge the threat posed and to exercise any level of diligence to prevent the behavior her children had demonstrated on numerous occasions.
Defendant's conduct in leaving the lighter in a location easily accessible to Brent rather than locking it up was a direct cause of Brent being able to use the lighter to start the fire.Again, the defendant had been advised to keep these materials locked up at all times.She refused.As a direct result of her refusal to undertake a very reasonable step in averting danger, Brent was able to grab the lighter from underneath a sofa cushion and light a candle that then lit the curtains on fire, resulting in the death of a baby.In People v. Tims,449 Mich. 83, 95, 534 N.W.2d 675(1995), the Michigan Supreme Court held that, "In order to convict a defendant of a criminal negligence offense, the prosecutor must prove beyond a reasonable doubt that the defendant's conduct was a factual cause of the fatal accident."In this case, the defendant(1) knew of the danger posed by leaving lighters within reach of her children, (2) failed to heed any warnings to lock up the lighters and matches, (3) kept the lighter in a place that was easily accessible to her children, (4) failed to exercise due diligence to prevent Brent from having access to the lighter, and (5) failed to properly supervise Brent after he had access to the lighter.All of these factors together constitute the cause in fact of the fatal accident.Therefore, there was more than sufficient evidence to support defendant's involuntary manslaughter conviction.
Defendant's argument regarding the trial court's failure to require jury unanimity on one of the two alternative theories of guilt advanced by the prosecution is not properly presented for review because it is not within the scope of the questions presented.See, e.g., People v. Miller,238 Mich.App. 168, 172, 604 N.W.2d 781(1999)().In particular, defendant's statement of the question presented correlating with the present issue refers only to a sufficiency of the evidence claim, not to any claim of error regarding jury instructions failing to require a unanimous verdict.Thus, this Court would be justified in declining to consider this argument on this basis alone.
However, even if this Court were to consider the merits of this issue, we would conclude that defendant is not entitled to relief under People v. Carines,460 Mich. 750, 597 N.W.2d 130(1999), which enunciated the standard of review for unpreserved error.In the relevant jury instructions, the trial court first said that defendant was charged with involuntary manslaughter committed in one or both of two ways: (1)"by doing a grossly negligent act causing death" or (2)"by gross negligence in failing to perform a legal duty."With regard to the first theory, the trial court instructed the jury:
As discussed above, there was sufficient evidence to support defendant's conviction of involuntary manslaughter under this theory.The trial court further instructed the jury with regard to the second theory:
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