People v. Schaub

• Decision Date: 20 February 2003
• Docket Number: Docket No. 231009.
• Citation: 656 N.W.2d 824,254 Mich. App. 110
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence B. SCHAUB, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

656 N.W.2d 824

254 Mich. App. 110

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence B. SCHAUB, Defendant-Appellant.

Docket No. 231009.

Court of Appeals of Michigan.

Submitted September 10, 2002, at Detroit.

Decided November 15, 2002, at 9:10 a.m.

Released for Publication February 20, 2003.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Carl J. Marlinga, Prosecuting Attorney, Robert John Berlin, Chief Appellate Lawyer, and Joshua D. Abbott, Assistant Prosecuting Attorney, for the people.

David Pietroski, Warren, for the defendant.

Before: O'CONNELL, P.J., and RICHARD ALLEN GRIFFIN and HOEKSTRA, JJ.

HOEKSTRA, J.

Defendant's appeal is before us by an order of the Supreme Court that, in lieu of granting leave to appeal, remanded the case to this Court for consideration as on leave granted. People v. Schaub, 463 Mich. 910, 620 N.W.2d 305 (2000). The issue presented on appeal is, in essence, whether the prosecution introduced sufficient evidence at the preliminary examination to require defendant to stand trial on the charge of child abandonment, M.C.L. § 750.135. After taking testimony at the preliminary examination, the district court dismissed the charge. The prosecution appealed to the circuit court and that court reversed the order of the district court and reinstated the charge against defendant. On application for interlocutory leave to appeal, this Court denied leave. People v. Schaub, unpublished order of the Court of Appeals, entered October 9, 2000 (Docket No. 229502). After consideration of the merits of the appeal, we agree with defendant and reverse the circuit court's order and remand the matter for further proceedings.

The charge against defendant of child abandonment stems from an allegation that defendant transferred possession of his ten-month-old daughter to an undercover police officer for financial gain. At the preliminary examination, the prosecution introduced testimony from defendant's daycare provider, who had contacted the police after defendant asked her if she knew anyone who wanted to buy his youngest child, and a police officer, who had posed as a well-to-do real estate broker that desired to obtain a baby for his childless "son" and "daughter-in-law." These witnesses testified that defendant willingly agreed to sell his daughter for $60,000 without verifying the background of the prospective buyer and his "son" and "daughter-in-law" and to relinquish all his parental rights to the child. After negotiating the terms and conditions of the "sale," defendant gave his daughter to a police officer posing as the buyer's son and received in exchange $10,000 in cash and the promise of an additional $50,000 within two days. Defendant also reduced to writing the financial terms of the agreement. The undercover police officer "buyer" testified that the child was never without care, having been transferred directly from defendant's presence to the buyer's "son." In addition, defendant informed them of the child's food requirements and discussed feeding and other procedures.

After hearing the witnesses' testimony and the arguments of the parties, the district court dismissed the child abandonment charge against defendant. The district court found that the prosecution had not met its burden of proof to show evidence of the elements of child abandonment. Specifically, the district court found that the term "wholly abandoned" in the child abandonment statute indicated placing the child in a situation where there is no one to care for it, and concluded that at no time was the child placed in a situation where she was without care.

The prosecution appealed as of right to the circuit court, and that court reversed the district court's order dismissing the child abandonment charge. The circuit court found that the district court erred in its interpretation of the child abandonment statute. According to the circuit court, "intent to wholly abandon" concerns only the defendant's conduct and the defendant's actions "must be analyzed without reference to the likelihood or unlikelihood that his child would befall harm at the hands of the prospective parents." The circuit court concluded that the prosecution presented sufficient evidence on that element to bind over defendant for trial. In addition, the circuit court found that the element of exposure was adequately shown by defendant's failure to protect his daughter from danger by failing to make reasonable inquiries into the moral and financial fitness of the prospective parents.

On appeal, defendant argues that the circuit court erred in reversing the district court's dismissal of the child abandonment charge because the circuit court's interpretation of the elements of child abandonment was incorrect. Specifically, the parties dispute whether the evidence established the elements of (1) exposure and (2) intent to wholly abandon. Ordinarily, the decision of the district court on a motion to bind over is reviewed for an abuse of discretion. People v. Stone, 463 Mich. 558, 561, 621 N.W.2d 702 (2001). However, here the decision to deny binding over defendant involved a determination by the district court that defendant's alleged conduct did not fit within the scope of the child abandonment statute, which raises a question of statutory interpretation that we review de novo. Id.

At the time that the alleged offense occurred, the child abandonment statute, M.C.L. § 750.135, provided:

Any father or mother of a child under the age of 6 years, or any other person who shall expose such child in any street, field, house or other place, with intent to injure or wholly to abandon it, shall be guilty of felony, punishable by imprisonment in the state prison not more than 10 years.

MCL 750.135 has remained basically unchanged since it was first interpreted in 1858, in Shannon v. People, 5 Mich. 71 (1858).¹ We are aware of no other precedential Michigan case that has addressed the statute. In Shannon, our Supreme Court explained that once the person that is alleged to have abandoned the child is found to be either the child's parent or guardian, there are two additional elements of the crime of child abandonment. These elements are (1) exposing the child and (2) the intent to wholly abandon the child. Id. at 81, 89. According to the Shannon Court, "to `expose' the child is the substantive act—the `intent to abandon' is the secondary ingredient; both must concur to complete the offense." Id. at 89.

Here, with respect to whether defendant intended to wholly abandon the child, we agree with the circuit court that sufficient evidence was introduced to satisfy that element of the charged offense. The proofs showed that defendant sold his child to an undercover police officer for $10,000 cash and a note for $50,000, with the understanding that defendant did not retain any ability to visit the child or exercise his parental rights. The police officer testified that defendant was informed and agreed that the police officer's "family" was planning to raise the child as their own, without any intervention by defendant. From this evidence it is reasonable to conclude that defendant intended to "renounce all care or protection of" the child. See id. Although defendant asked for the address where the child would be located, the record reveals that the reason that defendant requested that information was to cover up the sale, if the child's mother returned from Texas and wanted to see her. It is clear from the evidence that defendant did not intend to participate in the child's life after the sale. Therefore, we conclude that the prosecution's proofs established the element that defendant intended to wholly abandon his daughter.

However, we conclude that the evidence presented did not establish the element of exposure.² With regard to exposure, the Shannon Court stated:

The connection in which this section stands in our statute, in the chapter entitled, "Of Offenses against the Lives and Persons of Individuals," as well as the severity of the punishment, we think very clearly indicate that the exposure contemplated by this section must be such as may subject the child to hazard of personal injury—such as may peril the life or health of the child, or produce severe suffering or serious bodily harm; and, hence, that to leave a child, with the intent wholly to abandon it, "in a house (or other place) where it would be certain to be cared for," would not constitute the exposure contemplated by the statute. We can not suppose the legislature intended to inflict so severe a punishment, to protect "persons not parents or guardians from being burdened with the care and custody of children," if they choose to assume that care and custody; or, in other words, from an unexpected demand upon their benevolence, from which they might rid themselves at any time by applying to the officers having charge of the poor. Such severity, for such a purpose, would be unprecedented in the history of legislation. On the other hand, it is perfectly clear that no actual injury need ensue from the exposure. Id. at 90.

The Court then looked further at the Legislature's intent in passing the child abandonment statute, concluding that "[t]he object of the statute obviously was to meet the exposure in injury in limine; to prevent the hazard of injury, and to punish as a crime the act creating the hazard." Id. at 91. The Court continued:

The question, therefore, upon this point, is simply this: Did the acts of the party leaving or abandoning the child, viewed in connection with the time, place, and all the accompanying and surrounding circumstances, subject the child to the hazard of such personal injury? If so, this is an exposure.... We do not intend, by this, to say that a bare possibility of injury would constitute the exposure; but the only safe and practical rule upon this point, we think, is this: If, from the time, place, and manner of leaving

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