People v. Magyar

• Citation: 648 N.W.2d 215,250 Mich. App. 408
• Decision Date: 26 June 2002
• Docket Number: Docket No. 224664.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Christopher Gerard MAGYAR, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

648 N.W.2d 215

250 Mich. App. 408

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Christopher Gerard MAGYAR, Defendant-Appellant.

Docket No. 224664.

Court of Appeals of Michigan.

Submitted November 8, 2001, at Lansing.

Decided March 12, 2002, at 9:05 a.m.

Released for Publication June 26, 2002.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and David A. King, Senior Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Douglas W. Baker, Detroit) and Christopher G. Magyar, Baraga, in propria persona.

Before: FITZGERALD, P.J., and HOEKSTRA and MARKEY, JJ.

PER CURIAM.

Defendant appeals by right from his jury trial conviction of first-degree felony murder, M.C.L. § 750.316(1)(b), and his sentence of life in prison without parole. We affirm.

Defendant first asserts that his conviction of felony murder is improper because his conviction of murder and the predicate felony, in this case first-degree child abuse, arise out of the same act — a blow to the skull of Crystal Goble, who was 3-years old when she died as a result of bleeding and swelling in her brain. Defendant argues that the felony-murder statute does not permit a conviction where there are not two distinct crimes: rather, felony murder applies only where a second-degree murder is committed in the perpetration of one of the enumerated felonies in the statute. We disagree with defendant's argument.

At the time of this offense,¹ the Michigan felony-murder statute provided:

(1) A person who commits any of the following is guilty of first degree murder and shall be punished by imprisonment for life:

* * *

(b) Murder committed in the perpetration of, or attempt to perpetrate, arson, criminal sexual conduct in the first, second, or third degree, child abuse in the first degree, a major controlled substance offense, robbery, breaking and entering of a dwelling, home invasion in the first or second degree, larceny of any kind, extortion, or kidnapping. [MCL 750.316(1)(b).]

In People v. Jones, 209 Mich.App. 212, 214, 530 N.W.2d 128 (1995), this Court addressed a defendant's argument that his conviction of felony murder was improper because "the predicate felony of breaking and entering with the intent to commit an assault is not a felony independent of the homicide" that occurred in that case. Similarly, instant defendant complains that his assault that fractured Goble's skull cannot support "both the predicate felony and the murder itself." The defendant in Jones relied on People v. Wilson, 1 Cal.3d 431, 82 Cal.Rptr. 494, 462 P.2d 22 (1969), in which the Supreme Court of California applied the merger doctrine to ameliorate the effect of that state's felony-murder law. Jones, supra at 214, 530 N.W.2d 128. The California Court reasoned that "[w]here a person enters a building with an intent to assault his victim with a deadly weapon, he is not deterred by the felony-murder rule. That doctrine can serve its purpose only when applied to a felony independent of the homicide." Wilson, supra at 440, 82 Cal.Rptr. 494,462 P.2d 22. This Court in Jones distinguished the Michigan felony-murder statute from the California law on the basis of their purposes. While the Michigan statute was designed to "`graduate punishment and ... [to serve] to raise an already established murder to the first-degree level,'" the California common-law rule was designed to have a deterrent effect. Jones, supra at 215, 530 N.W.2d 128, quoting People v. Aaron, 409 Mich. 672, 719, 299 N.W.2d 304 (1980). This Court also noted that "[g]iven our requirement that first-degree felony murder requires an additional mens rea besides the intent to commit the underlying felony, we conclude that defendant's reliance on Wilson is misplaced." Jones, supra at 215, 530 N.W.2d 128. This Court found further support for its conclusion in the language of the statute itself, stating that "the statute clearly allows all murder committed in the perpetration or attempted perpetration of the enumerated felonies to be treated as first-degree murder." Id.

The rationale of Jones applies to the instant case. Here, defendant asserts that because his crime was a single blow to Goble's head that fractured her skull, he cannot be simultaneously convicted of first-degree child abuse and second-degree murder resulting in a conviction of felony murder. However, as this Court noted in Jones, Michigan's felony-murder statute serves to raise an established murder to first-degree murder and "makes no distinctions for the commission of enumerated felonies with assaultive intent against the murder victim." Id. In the present case, the jury convicted defendant of second-degree murder. In order to convict defendant of this crime, the jury must have concluded that defendant acted with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with the knowledge that death or great bodily harm was the probable result. People v. Djordjevic, 230 Mich. App. 459, 461-462, 584 N.W.2d 610 (1998). The jury was thus satisfied that defendant had acted with malice. Moreover, the jury convicted defendant of felony murder, which required it to find that defendant had committed first-degree child abuse. That crime requires that a defendant knowingly or intentionally causes a child serious physical harm. MCL 750.136b(2). Thus, the jury's verdict supports the conclusion that defendant committed murder while perpetrating one of the enumerated felonies in the statute. Moreover, because the jury found that defendant possessed both the malice to commit murder and the intent necessary to commit first-degree child abuse, defendant's argument is without merit.

Defendant next argues that the trial court abused its discretion by admitting evidence that defendant had faced previous allegations of child abuse. Defendant asserts that the evidence of the previous incident should not have been admitted because it was not probative of any material issue and because its probative value was substantially outweighed by the prejudicial effect inflicted on defendant's case. We disagree.

MRE 404(b) governs admission of evidence of bad acts. It provides:

(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.

Use of bad acts as evidence of character is excluded, except as allowed by MRE 404(b)(1), to avoid the danger of conviction based on a defendant's history of misconduct. People v. Golochowicz, 413 Mich. 298, 308, 319 N.W.2d 518 (1982). To be admissible under MRE 404(b)(1), bad acts evidence must satisfy three requirements: (1) it must be offered for a proper purpose, (2) it must be relevant, and (3) its probative value must not be substantially outweighed by its potential for unfair prejudice. A proper purpose is one other than establishing the defendant's character to show his propensity to commit the offense. People v. VanderVliet, 444 Mich. 52, 74-75, 508 N.W.2d 114 (1993), amended 445 Mich. 1205, 520 N.W.2d 338 (1994).

The evidence at issue here was testimony from defendant's former wife, Lynn Vitanovski, who testified that in 1992, while she was defendant's girlfriend, defendant had been charged with abusing her daughter, Nikolina. Vitanovski testified regarding the abusive acts and defendant's urging delay in treating the child's injuries. The evidence that defendant inflicted the injuries on Nikolina was materially relevant. The prosecution offered this evidence to show that Goble's injury was not the result of an accident. The case against defendant relied on circumstantial evidence that tended to show that defendant was caring for Goble when she was struck on the head and the testimony of medical experts who testified unequivocally that her injuries could not have been caused by a simple fall. Defendant claimed that he was in the shower when Goble was injured and that Goble's mother, Julie Woodbury, accidentally injured Goble while she was disciplining her. However, Woodbury testified that she was not present when Goble was injured and that defendant told her that Goble was accidentally injured while he was in the shower....