People v. Borom

• Decision Date: 29 December 2014
• Docket Number: COA No. 313750.,Docket No. 148674.
• Citation: People v. Borom, 497 Mich. 931, 857 N.W.2d 2 (Mich. 2014)
• Parties: PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Shawquanda BOROM, Defendant–Appellant.
• Court: Michigan Supreme Court

497 Mich. 931

857 N.W.2d 2 (Mem)

PEOPLE of the State of Michigan, Plaintiff–Appellee

v.Shawquanda BOROM, Defendant–Appellant.

Docket No. 148674.

COA No. 313750.

Supreme Court of Michigan.

Dec. 29, 2014.

Order

On October 22, 2014, the Court heard oral argument on the application for leave to appeal the December 19, 2013 judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.302(H)(1). In this case, the defendant is charged with two counts of first-degree child abuse, as both a principal and an aider and abettor, and one count of first-degree felony murder, the predicate felony being the second count of first-degree child abuse occurring on July 26, 2011. In lieu of granting leave to appeal, if the prosecutor proceeds to trial on an aiding and abetting theory, we DIRECT the Wayne Circuit Court, pursuant to MCR 7.301(A), to require that, if the jury finds the defendant guilty of the second count of first-degree child abuse or felony murder, the jury return a special verdict form specifying whether any such verdict was premised on a theory that the defendant acted as a principal or that the defendant aided or abetted the commission of either of the offenses. See MCR 2.515(A) and MCR 6.001(D). In all other respects, the application for leave to appeal is DENIED, because we are not persuaded that the questions presented should now be reviewed by this Court.

MARKMAN, J. (concurring).

I concur in this Court's interlocutory denial and write separately only to respond to the dissent, which concludes that there was not probable cause that defendant possessed the necessary intent to sustain a charge of first-degree child abuse.

Defendant, her 17–year–old boyfriend, and her 16–month–old child lived in the home of defendant's mother. In July 2011, the child was injured on three separate occasions while at the home. First, the child suffered an injury to his shoulder on July 9, for which he was treated at a hospital and returned home. Second, on or about July 23, the child suffered second- and third-degree burns to the back of his head and face, for which he was not treated. Third, the child suffered a skull fracture on July 26, for which he was brought again to the hospital, where he died two days later.

Authorities investigated the injuries that led to the child's death, and defendant was eventually charged with three counts of first-degree child abuse and one count of first-degree felony murder.¹

At her preliminary examination, several witnesses testified concerning the circumstances, and likely causes, of the child's injuries, and the district court considered various out-of-court statements of defendant and her boyfriend. The evidence generally indicated that the child suffered the first injury while in the boyfriend's care and that it was not deemed suspicious at the time. However, the facts surrounding the second and third injuries were of greater concern. Concerning the second injury, both defendant and her boyfriend asserted that the child was burned when the child accidentally turned on the hot water during a bath. The boyfriend indicated that he was the only person bathing the child at the time the child was burned, while defendant indicated that she was the only person bathing the child. The medical examiner opined that it was unlikely that the child had accidentally turned on the hot water and burned himself. Concerning the third and fatal injury, the testimony indicated that the child had been left alone in the boyfriend's care. He stated that he saw the child strike his head when he accidentally fell off the porch stairs. Defendant, on the other hand, stated variously that nothing caused the injury, that she saw the child fall off the porch stairs and injure himself, and that she was not at home when the injury occurred. Defendant, at her mother's urging, eventually called 911 that evening. According to the medical examiner, the fatal injury was most consistent with the child being thrown against a “firm object,” and the death was the result of homicide.

The prosecutor moved the district court to dismiss the charge of first-degree child abuse arising out of the first injury and bind defendant over to the circuit court for trial only on the remaining three charges, and the district court did so. Defendant then moved the circuit court to dismiss the charges in their entirety, and the motion was denied. The Court of Appeals affirmed.

“The purpose of a preliminary examination is to determine whether there is probable cause to believe that a crime was committed and whether there is probable cause to believe that the defendant committed it.” People v. Perkins, 468 Mich. 448, 452, 662 N.W.2d 727 (2003). “Probable cause requires a quantum of evidence ‘sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.” People v. Yost, 468 Mich. 122, 126, 659 N.W.2d 604 (2003), quoting People v. Justice

(After Remand ), 454 Mich. 334, 344, 562 N.W.2d 652 (1997). “The prosecutor need not establish beyond a reasonable doubt that a crime was committed.” Perkins, 468 Mich. at 452, 662 N.W.2d 727. “Absent an abuse of discretion, reviewing courts should not disturb a magistrate's decision to bind a criminal defendant over for trial.” People v. Plunkett, 485 Mich. 50, 57, 780 N.W.2d 280 (2010). “A mere difference in judicial opinion does not establish an abuse of discretion.” People v. Cress, 468 Mich. 678, 691, 664 N.W.2d 174 (2003).

At the time relevant to this case, the first-degree child abuse statute, MCL 750.136b(2), read as follows:

A person is guilty of child abuse in the first degree if the person knowingly or intentionally causes serious physical or serious mental harm to a child. Child abuse in the first degree is a felony punishable by imprisonment for not more than 15 years. [As amended by 2008 PA 577.]

To prove first-degree child abuse, the prosecutor must show that the “defendant intended to commit the act” and that the “defendant intended to cause serious physical [or serious mental] harm or knew that serious physical [or serious mental] harm would be caused by” the act. People v. Maynor, 470 Mich. 289, 291, 683 N.W.2d 565 (2004).²

According to the dissent, defendant did not possess the necessary intent to sustain the first-degree child abuse charge arising out of the third injury. First, the dissent contends that defendant did not possess the necessary intent as a principal because she did not intend to cause serious physical or serious mental harm by leaving the child with her boyfriend, nor did she know that serious physical or serious mental harm would be caused by doing so. Second, the dissent contends that defendant did not possess the necessary intent as an aider and abettor because she did not have knowledge of her boyfriend's intent to commit first-degree child abuse.

Concerning the first contention, I do not believe the district court erred by finding probable cause that defendant had knowledge that serious physical or serious mental harm would be caused by leaving the child with her boyfriend. The evidence indicated that the child had suffered two serious injuries in a two-week period, each time while in the boyfriend's care. The second injury in particular cast the first injury in a suspicious light. In addition, defendant's mother had warned her that bringing the child to the hospital following the second injury could result in Children's Protective Services removing the child from the home. Given the successive injures, and given the warning about Children's Protective Services intervention, it is not unreasonable to infer that defendant knew that her boyfriend was abusing the child and causing him serious physical harm. Given defendant's knowledge of the ongoing serious physical harm caused by her boyfriend on two prior and recent occasions on which the child was left alone with him, there was sufficient probable cause to believe that she “knew that serious physical harm would be caused by” leaving the child in her boyfriend's exclusive care on a third occasion. Maynor, 470 Mich. at 291, 683 N.W.2d 565.

Concerning the second contention, I again do not believe the district court erred by finding probable cause that defendant had knowledge of her boyfriend's intent to commit first-degree child abuse. The aiding-and-abetting statute, MCL 767.39, reads as follows:

Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.

Aiding and abetting “is simply a theory of prosecution, not a separate substantive offense.” People v. Perry, 460 Mich. 55, 63 n. 20, 594 N.W.2d 477 (1999). “[A] defendant is liable for the crime the defendant intends to aid or abet....” People v. Robinson, 475 Mich. 1, 14–15, 715 N.W.2d 44 (2006). “This includes both intending to commit the crime and aiding someone with knowledge that he or she intends to commit the crime. ' ” Id. at 15 n. 39, 715 N.W.2d 44 (emphasis added).

As already noted, the evidence here indicated that defendant knew that her boyfriend was physically abusing the child and causing him serious physical harm. If so, there was obviously probable cause to believe that defendant knew that her boyfriend harbored an intent to cause the child such harm. By placing the child in his care on the day in question, defendant “aid[ed] someone with knowledge that he or she intend[ed] to commit the crime” of first-degree child abuse. Id.

In conclusion, and contrary to the dissent, I do not believe the district court abused its discretion by binding defendant over on the charge of first-degree child abuse arising out of the fatal injury either as a principal or on an aiding-and-abetting theory. Furthermore, because I disagree that the district...