People v. McFarlane

• Decision Date: 19 June 2018
• Docket Number: No. 336187,336187
• Citation: 325 Mich.App. 507,926 N.W.2d 339
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony Ray MCFARLANE, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

325 Mich.App. 507
926 N.W.2d 339

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Anthony Ray MCFARLANE, Jr., Defendant-Appellant.

No. 336187

Court of Appeals of Michigan.

Submitted June 5, 2018, at Grand Rapids.
Decided June 19, 2018.
Approved for publication August 7, 2018, 9:10 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Myrene K. Koch, Prosecuting Attorney, and Jonathan K. Blair, Assistant Prosecuting Attorney, for the people.

Ronald D. Ambrose, Livonia, for defendant.

Anthony R. McFarlane, Jr., Lanham, in propria persona.

Before: Murray, C.J., and Markey and Tukel, JJ.

Per Curiam.

325 Mich.App. 512

Defendant, Anthony Ray McFarlane, Jr., appeals by right his jury conviction of first-degree child abuse involving his then nine-week-old infant, KM. See MCL 750.136b(2). The trial court sentenced defendant to serve 15 to 25 years in prison for his conviction. On appeal, defendant raises several claims of error that he argues warrant a new trial or resentencing. For the reasons explained below, we affirm defendant’s conviction but remand for resentencing.

325 Mich.App. 513

I. SUFFICIENCY OF THE EVIDENCE

A. STANDARD OF REVIEW

Defendant first argues that the prosecution presented insufficient evidence to support his conviction of first-degree child abuse. This Court reviews a challenge to the sufficiency of the evidence by examining the "record evidence de novo in the light most favorable to the prosecution to determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt." People v. Roper , 286 Mich. App. 77, 83, 777 N.W.2d 483 (2009). This Court must resolve all conflicts in the evidence in favor of the prosecution. See People v. Wilkens , 267 Mich. App. 728, 738, 705 N.W.2d 728 (2005).

B. ANALYSIS

To establish the elements of first-degree child abuse, the prosecution had to prove—in relevant part—that defendant "knowingly or intentionally cause[d] serious physical ... harm" to KM. MCL 750.136b(2). Serious physical harm means "any physical injury to a child that seriously impairs the child’s health or physical well-being, including, but not limited to, brain damage, a skull or bone fracture, subdural hemorrhage or hematoma, dislocation, sprain, internal injury, poisoning, burn or scald, or severe cut." MCL 750.136b(1)(f). Because the Legislature provided that the perpetrator must "knowingly or intentionally" cause the serious physical harm, it is not sufficient for the prosecution to prove that a defendant intended to commit the act that caused the physical harm; the prosecution must prove that the "defendant intended to cause serious physical harm or knew that serious physical harm would be

325 Mich.App. 514

caused by [his or] her act." People v. Maynor , 470 Mich. 289, 291, 683 N.W.2d 565 (2004).

In this case, the prosecution presented evidence that tended to suggest that defendant injured KM at some point on December 6, 2013, or early in the day on December 7, 2013.

KM’s half-sister, KD, who was five years old on the day at issue, testified that she wanted defendant to play with her, but he wanted to play video games. After she began to cry, defendant became angry

926 N.W.2d 346

with her, punished her, and eventually spanked her. She said she went to her room but peeked into the living room when she heard KM crying. She saw defendant shaking KM.

Defendant suggests that KD’s testimony was improbable because her timing was off and she failed to earlier disclose the shaking incident. When reviewing challenges to the sufficiency of the evidence, this Court must not interfere with the fact-finder’s role in deciding the weight and credibility to give to a witness’s testimony—"no matter how inconsistent or vague that testimony might be." People v. Mehall , 454 Mich. 1, 6, 557 N.W.2d 110 (1997) ; see also People v. Lemmon , 456 Mich. 625, 646-647, 576 N.W.2d 129 (1998). Rather, this Court must view the evidence in the light most favorable to the prosecution and uphold the verdict if a reasonable finder of fact could have found that the elements were proved beyond a reasonable doubt. See People v. Wolfe , 440 Mich. 508, 514-515, 489 N.W.2d 748 (1992), amended 441 Mich 1201 (1992). Therefore, we cannot disregard KD’s testimony; instead, we must make every reasonable inference from her testimony in favor of the verdict. See id.

KD’s testimony about the timing was not entirely clear. She did at first imply that the shaking incident occurred sometime immediately before defendant took

325 Mich.App. 515

her to his mother’s house, which would have been early on Saturday, December 7, 2013. The children’s mother, Dakota Chitwood, testified that KM was already showing signs of fussiness and pain by that time, and Chitwood was home and would likely have been in a position to witness the discipline had it occurred Saturday morning. However, KD later testified that the discipline occurred after she got home from school and before her mother got home from work. From KD’s testimony a reasonable finder of fact could infer that the shaking incident occurred on Friday.

The prosecution also presented expert testimony that KM had several injuries. Sarah Brown, D.O., a child abuse pediatrician, testified that KM had blood in the "space between her brain and her skull"—the "subdural space." The bleeding was "all over both sides of her brain." She also had a suspected tibia fracture, and Brown stated that an ophthalmologist observed bleeding in the back of KM’s eye, which was referred to as retinal hemorrhages. Brown stated that KM’s injuries could have been caused by someone violently shaking KM or by throwing her onto a couch or other soft surface. Brown acknowledged that KM had had a prenatal stroke, which caused the left hemisphere of KM’s brain to shrink substantially. But she opined that KM’s subdural hematomas and retinal hemorrhages were not attributable to her stroke. There was also testimony that the latter injuries arose during the time frame set forth in KD’s testimony. Thus, when Brown’s testimony is considered with KD’s testimony that she saw defendant shake KM, a jury could reasonably, infer that defendant violently shook KM and that his acts caused her to suffer the identified injuries.

Further, it does not matter that the finder of fact must make multiple inferences to establish these elements.

325 Mich.App. 516

When considering the sufficiency of the evidence, this Court must consider the inferences that can be fairly drawn from the evidence, and "it does not matter that the evidence gives rise to multiple inferences or that an inference gives rise to further inferences." People v. Hardiman , 466 Mich. 417, 428, 646 N.W.2d 158 (2002). Finally, the Legislature specifically defined serious physical harm to include subdural hematoma. See MCL 750.136b(1)(f). Therefore, the prosecution presented sufficient evidence to establish defendant’s identity as the person

926 N.W.2d 347

who inflicted an act that caused a serious physical injury to KM. See People v. Yost , 278 Mich. App. 341, 356, 749 N.W.2d 753 (2008) (noting that "identity is an element of every offense"). The only remaining issue is whether the prosecution presented sufficient evidence to establish that defendant intended to cause serious physical harm or knew that serious physical harm would result. See Maynor , 470 Mich. at 291, 295, 683 N.W.2d 565.

Because it is difficult to prove an actor’s state of mind, the prosecution may rely on minimal circumstantial evidence to prove that the defendant had the required mental state. See People v. Unger , 278 Mich. App. 210, 223, 749 N.W.2d 272 (2008). The evidence that defendant shook KM and that his shaking caused her injuries was sufficient to establish that defendant acted intentionally and caused her serious physical harm. Brown further opined that the acts that caused KM’s injuries had to be violent. There was expert opinion to the contrary, but this Court must resolve that dispute in the prosecution’s favor. Wilkens , 267 Mich. App. at 738, 705 N.W.2d 728. A reasonable finder of fact could find Brown’s testimony credible and find that defendant shook KM violently. It could then further infer from the violence of the act that he either intended to cause her

325 Mich.App. 517

serious injury or knew that it was likely to do so. See Unger , 278 Mich. App. at 223, 749 N.W.2d 272.

The prosecution presented sufficient evidence to permit a rational trier of fact to find that each element of first-degree child abuse had been proved beyond a reasonable doubt. See Roper , 286 Mich. App. at 83, 777 N.W.2d 483.

II. INVADING THE PROVINCE OF THE JURY

A. STANDARD OF REVIEW

Defendant next argues that the trial court erred when it allowed Brown to testify that she diagnosed KM with "definite...