People v. Shelton

• Decision Date: 07 January 1985
• Docket Number: Docket No. 69170
• Citation: 138 Mich.App. 510,360 N.W.2d 234
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sidney SHELTON, Defendant-Appellant. 138 Mich.App. 510, 360 N.W.2d 234
• Court: Court of Appeal of Michigan — District of US

Page 234

360 N.W.2d 234

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sidney SHELTON, Defendant-Appellant.

Docket No. 69170.

138 Mich.App. 510, 360 N.W.2d 234

Court of Appeals of Michigan.

Submitted Feb. 21, 1984.

Decided Nov. 5, 1984.

Released for Publication Jan. 7, 1985.

[138 MICHAPP 512] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Jeffrey Caminsky, Asst. Pros. Atty., for the People.

Carl R. Meyer, Southfield, for defendant-appellant on appeal.

Before HOLBROOK, P.J., and MacKENZIE and QUINNELL ^*, JJ.

MacKENZIE, Judge.

Defendant, charged with child torture, appeals as of right from his jury conviction of attempted child torture. M.C.L. Sec. 750.136a; M.S.A. Sec. 28.331(1); M.C.L. Sec. 750.92; M.S.A. Sec. 28.287. The victim, who was two years old at the time of the alleged offense and three years old at the time of trial, was found incompetent to testify as a witness because he could not understand the difference between lying and telling the truth. The main prosecution witness was the victim's mother, who testified that in July of 1981 defendant was living with her and her two children. She testified to a series of physical abuses of the victim by defendant during the period of July 14 to July 17, 1981, which included numerous whippings of the child on his back and buttocks; forced stays in a closed closet, once with the child's feet tied together and on another occasion handcuffed to the doorknob; and beatings wherein defendant punched the child in the chest numerous times, knocking him to the floor and aggravating a prior injury to the child's ear, and dug his fingernails into the child's mouth.

[138 MICHAPP 513] There was also testimony by physicians who treated the victim shortly after the alleged abuse occurred indicating that the victim's ear, where an old burn wound was healing, was swollen, that his mouth was swollen and bleeding, and that he had many marks and bruises on his body. Defendant admitted having accidentally, on an earlier occasion, burned the victim's ear with a hair blow dryer and admitted having caused some injury to the victim's mouth on July 15 or 16 when removing rat poison which the victim had put in his mouth. Defendant, however, denied having ever intentionally abused the child, and the defense theory suggested that it was the victim's mother who had abused the victim.

The trial court instructed the jury on the charged offense of child torture, and also on attempted child torture as a lesser included offense, of which lesser offense defendant was convicted. The court refused defendant's request that the jury be instructed on child cruelty, M.C.L. Sec. 750.136; M.S.A. Sec. 28.331, as a lesser included offense. Defendant contends that the court's refusal to instruct was error since child cruelty is a necessarily, or at least a cognate, lesser included offense of child torture.

The child torture statute provides as follows:

"Any parent or guardian or person under whose protection or control any child may be, who tortures such child, shall be guilty of a felony and may be punished by imprisonment for not more than 10 years." M.C.L. Sec. 750.136a; M.S.A. Sec. 28.331(1).

The child cruelty statute provides in pertinent part as follows:

"Any parent or guardian or person under whose [138 MICHAPP 514] protection any child may be, who cruelly or unlawfully punishes, or wilfully, unlawfully or negligently deprives of necessary food, clothing or shelter, or who wilfully abandons a child under 16 years of age, or who habitually causes or permits the health of such child to be injured, his or her life endangered by exposure, want or other injury to his or her person, or causes or permits him or her to engage in any occupation that will be likely to endanger his or her health, or deprave his or her morals or who habitually permits him or her to frequent public places for the purpose of begging or receiving alms, or to frequent the company of or consort with reputed thieves or prostitutes, or by vicious training depraves the morals of such child, shall, upon conviction, be deemed guilty of a felony * * *." M.C.L. Sec. 750.136; M.S.A. Sec. 28.331. (Emphasis added.)

The maximum sentence for child cruelty is four years. M.C.L. Sec. 750.503; M.S.A. Sec. 28.771.

In People v. Biegajski, 122 Mich.App. 215, 223, 332 N.W.2d 413 (1982), lv. den. 417 Mich. 1080 (1983), a panel of this Court reasoned that the difference between child cruelty and child torture is that the former applies where the abuse is inflicted with a punishment motive while the latter applies to abuse inflicted with a sadistic motive or purpose other than punishment. In People v. Webb, 128 Mich.App. 721, 727, 341 N.W.2d 191 (1983), another panel disagreed with the Biegajski panel's distinguishing between the two offenses based on the defendant's motive, and instead interpreted the child torture statute as applying to the "intentional infliction of intense or severe pain for various purposes such as sadistic pleasure, coercion, and punishment", and determined that this high degree of pain or injury is the additional element required for conviction of child torture in contrast to child cruelty. We agree with the Webb panel. If the two offenses were to be distinguished based on the defendant's motive, this would lead to the [138 MICHAPP 515] anamolous result that so long as the defendant acted with the motive of punishing the child for some real or perceived infraction, the defendant could be convicted only of child cruelty and not the higher offense of child torture, regardless of how extreme the injury inflicted upon the child, while a defendant acting with some motive other than punishment could be convicted only of child torture regardless of how minor the injury inflicted.

Given our conclusion that child torture requires the infliction of extreme or severe pain or injury above and beyond the degree of pain or injury required for conviction of child cruelty, it is clear that child cruelty is a necessarily lesser included offense of child torture. An offense is a necessarily lesser included offense of another if it is impossible to commit the greater offense without also committing the lesser offense. People v. Ora Jones, 395 Mich. 379, 387, 236 N.W.2d 461 (1975). A necessarily lesser included offense is one which emerges when some element or elements of the greater offense are eliminated, People v. Adams, 416 Mich. 53, 58-59, 330 N.W.2d 634 (1982), and therefore evidence which supports the greater offense will always support a necessarily lesser included offense, People v. Ora Jones, supra, 395 Mich. p. 390, 236 N.W.2d 461. Once the extreme or severe pain or injury element of child torture is eliminated, the offense of child cruelty emerges, and if there is evidence of infliction of extreme pain or injury supporting a child torture conviction, the evidence also necessarily will show infliction of pain or injury to a lesser degree so as to support a conviction of child cruelty.

It is error for a trial judge to refuse a defendant's request for an instruction on a necessarily lesser included offense, People v. Kamin, 405 Mich. 482, 493, 275 N.W.2d 777 (1979), and the trial [138 MICHAPP 516] court's...