People v. Murphy

• Decision Date: 19 September 2017
• Docket Number: No. 331620,331620
• Citation: 910 N.W.2d 374,321 Mich.App. 355
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kimberly Anitra MURPHY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

321 Mich.App. 355

910 N.W.2d 374

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Kimberly Anitra MURPHY, Defendant-Appellant.

No. 331620

Court of Appeals of Michigan.

Submitted July 12, 2017, at Detroit.

Decided September 19, 2017, 9:05 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Eric J. Smith, Prosecuting Attorney, Joshua D. Abbott, Chief Appellate Attorney, and Joshua Van Laan, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Kristin LaVoy) for defendant.

Before: Gleicher, P.J., and M. J. Kelly and Shapiro, JJ.

M. J. Kelly, J.Defendant, Kimberly Murphy, was convicted following a jury trial of second-degree child abuse, MCL 750.136b(3). Murphy was sentenced to 36 to 120 months’ imprisonment, with 76 days of credit for jail time served. Because the jury verdict is not supported by sufficient evidence, we vacate Murphy’s conviction and sentence.

I. BASIC FACTS

This case arises from the death of Murphy’s 11-month-old daughter, Trinity Murphy.¹ The prosecutor presented evidence showing that Trinity died after ingesting a toxic quantity of morphine.² The prosecutor’s theory was that Trinity died because of her parents’ "reckless acts," which she contended consisted of "their inaction" and their inability to protect their child and provide a safe home environment. In support of her theory, the prosecutor presented substantial evidence showing that the home was in a deplorable and filthy condition, that there were prescription morphine pills in the home, and that Trinity’s parents had failed to clean the home to ensure that the morphine pills were removed after Trinity’s grandmother (who was prescribed the medication and had been living in the home) passed away. The defense theory was that no reckless act taken by Murphy caused Trinity’s death.

II. SUFFICIENCY OF THE EVIDENCE

A. STANDARD OF REVIEW

Murphy argues that there was insufficient evidence to convict her of second-degree child abuse. We review de novo challenges to the sufficiency of the evidence. People v. Ericksen , 288 Mich.App. 192, 195, 793 N.W.2d 120 (2010). When reviewing a challenge to the sufficiency of the evidence, "[a]ll conflicts in the evidence must be resolved in favor of the prosecution, and circumstantial evidence and all reasonable inferences drawn therefrom can constitute satisfactory proof of the crime." People v. Solloway , 316 Mich.App. 174, 180–181, 891 N.W.2d 255 (2016) (citations omitted). " ‘It is for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded those inferences.’ " People v. Henry , 315 Mich.App. 130, 135, 889 N.W.2d 1 (2016), quoting People v. Hardiman , 466 Mich. 417, 428, 646 N.W.2d 158 (2002).

B. ANALYSIS

Under MCL 750.136b(3), a person is guilty of second-degree child abuse under any one of three circumstances:

(a) The person’s omission causes serious physical harm or serious mental harm to a child or if the person’s reckless act causes serious physical harm or serious mental harm to a child.

(b) The person knowingly or intentionally commits an act likely to cause serious physical or mental harm to a child regardless of whether harm results.

(c) The person knowingly or intentionally commits an act that is cruel to a child regardless of whether harm results.

Only Subdivision (a) is applicable in this case. Under Subdivision (a), a person can be convicted of second-degree child abuse if his or her "omission causes serious physical harm or serious mental harm to a child" or if his or her "reckless act causes serious physical harm or serious mental harm to a child." MCL 750.136b(3)(a).³

The prosecutor proceeded under the theory that Murphy had committed a reckless act causing serious physical harm to Trinity, not that her omission caused serious physical harm to Trinity, and that was the only theory on which the jury was instructed.⁴ To establish second-degree child abuse based on a reckless act, the prosecution must prove (1) that the defendant was a parent or a guardian of the child or had care or custody of or authority over the child, (2) that the defendant committed a reckless act, (3) that, as a result, the child suffered serious physical harm, and (4) that the child was under 18 years old at the time. See M. Crim. J.I. 17.20. Generally, determining whether an act was reckless is a jury question. See People v. Edwards , 206 Mich.App. 694, 696–697, 522 N.W.2d 727 (1994).

The question in this case, however, is not whether Murphy was "reckless."⁵ Instead, it is whether she committed a "reckless act ." The statute does not define what constitutes an "act" for purposes of MCL 750.136b(3)(a). Black’s Law Dictionary (10th ed.) defines "act" as "1. Something done or performed, esp. voluntarily; a deed," or "2. The process of doing or performing; an occurrence that results from a person’s will being exerted on the external world[.]" Thus, in order to constitute a "reckless act" under the statute, the defendant must do something and do it recklessly. Simply failing to take an action does not constitute an act. In this case, the prosecutor presented no evidence that any affirmative act taken by Murphy led to Trinity’s death. Instead, she only directed the jury to Murphy’s reckless inaction , i.e., her failure to clean her house to ensure that morphine pills were not in Trinity’s reach.

Because there is no evidence in the record of a reckless act taken by Murphy that caused Trinity to suffer serious physical harm, we vacate her conviction and sentence for second-degree child abuse.⁶

Shapiro, J., concurred with M.J. Kelly, J.

Gleicher, P. J. (concurring).

I fully concur with the majority’s determination that Kimberly Murphy did not engage in an affirmative act that caused harm to Trinity. I write separately to express my view that even if Murphy’s failure to clean her home could be regarded as an "act," it did not meet the applicable mens rea standard: recklessness. This alternative ground also supports vacating Murphy’s conviction.

I. FACTUAL BACKGROUND

No one knows how or where Trinity found the morphine pill that the prosecution theorizes took the child’s life. The investigators’ best guess is that the pill landed on the floor of Murphy’s mother’s bedroom at some unknown point in time, and that Trinity found it when she crawled around on the room’s unvacuumed carpet. But this is truly a guess, as the investigators noted that the pills were otherwise contained in a child-proof vial kept in a closet on a shelf above Trinity’s reach.

The trial evidence focused relentlessly on the conditions of the home—the filthy kitchen and bathroom, the smelly garbage bags in the laundry room, and the unpleasant, dirty, and, as characterized by an investigator, altogether "deplorable" state of the home. No evidence was presented, however, about any specific circumstances that led to Trinity’s ingestion of the pill. After Murphy’s mother, Muriel Cheeks, died of cancer, one of Murphy’s adult children moved into Cheeks’s bedroom. Trinity watched television in that room during the evening before the child died. The lead investigator speculated that Cheeks or one of her caregivers may have accidentally dropped one of Cheeks’s brownish-colored morphine pills on the brown carpet and that two weeks later, Trinity ate it.

During her closing argument, the prosecutor strenuously maintained that Murphy’s tolerance of the filthy living conditions equated with a reckless act consistent with second-degree child abuse: "Their recklessness was their inability to care. Their indifference to consequence. Their inability to go in and make sure that medication was taken out of the house. Make sure that room was kept in an environment fit for children." The prosecutor emphasized the filthy conditions in the home and that Child Protective Services had previously intervened for that reason:

There was evidence in the case that talked about the defendants’ prior Child Protective Service history. And that’s really important because we know that this isn’t a onetime thing. This is how they’ve always been. Their whole entire lives.

Services were provided to this family. Is there anything we can do to help you make your home conditions more fit? More fit for your children. We will do anything we need to do. We will help you pay your rent. We will help you with your heating bill. We will provide you beds. But every [sic] their hands out to get any of these services, they don’t turn around and do anything to better their children. In fact, their children were consistently sent to school in unkempt conditions.

And why is that important? It leads directly back to their lifestyle. The lifestyle they’ve always had. One in which that was reckless and one that is just indifferent to the consequences of their actions.^[1]

In her rebuttal argument, the prosecutor persisted in hammering this theme:

Their recklessness was their inability to care. Their indifference to consequence. Their inability to go in and make sure that medication was taken out of the house. Make sure that room was kept in an environment fit for children. An environment that they were taught about. Child Protective Services comes in their house. Let’s help fix this. Let’s do what we need to do. Here’s an intensive program. Here’s another program. Here’s another program. This isn’t an accident. This isn’t some oh well we didn’t know. It’s not cleaning day. It’s not laundry day. We just didn’t vacuum. They didn’t even find a vacuum in the house. There’s a brand new broom.

* * *

There were no cleaning supplies in the house. Police said that and found nothing in the (inaudible).

That’s the defendant’s [sic] recklessness. That’s what they did. They’re [sic] unkempt house. They’re [sic] inability to clean. They’re [sic] inaction caused Trinity to die. It was not Trinity’s time to go. That baby is not here today because of what they failed to do. Give her living conditions that

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