People of Michigan v. Victoria Joan Foster
331148
| Mich. Ct. App. | Jun 29, 2017Background
- Seven‑year‑old Immanuel Foster was found malnourished, immobilized with numerous lesions and traumatic injuries, and died from infection/sepsis; autopsy evidence indicated prolonged neglect and abuse.
- Cory Rimson and Victoria Foster were tried together (separate juries). Rimson convicted of involuntary manslaughter and second‑degree child abuse; Foster convicted of involuntary manslaughter, first‑degree child abuse, and torture.
- Rimson was sentenced to concurrent terms (10–15 years involuntary manslaughter; 5–10 years child abuse). Foster received concurrent terms (minimums: 5–15 years involuntary manslaughter; 27–50 years for first‑degree child abuse and torture).
- Rimson challenged OV 3 scoring (100 points assessed) and the reasonableness of his upward departure sentence.
- Foster raised multiple claims on appeal: judicial bias for the trial judge’s questioning, sufficiency of the evidence for torture and first‑degree child abuse, refusal to strike a juror for cause (Jehovah’s Witness), instructional error (added language on capacity to consent), departure‑sentence proportionality, and ineffective assistance for failing to request lesser‑included instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| OV 3 scoring (Rimson) | Prosecutor: 100 points properly assessed for ‘‘physical injury to a victim’’ because victim died. | Rimson: 100 points improper because involuntary manslaughter is a homicide for guidelines purposes; should be 25 points. | Court: Trial court erred in assigning 100 points; involuntary manslaughter is a homicide under MCL 777.1(c). But error was harmless because corrected OV score did not change guidelines column. |
| Reasonableness of departure sentence (Rimson & Foster) | State: departure permissible post‑Lockridge; trial court justified reasons. | Defendants: upward departures excessive/unreasonable and punitive to compensate for acquitted murder charges. | Court: Under Milbourn proportionality standard (applied in Steanhouse), departures were reasonable given offense seriousness, additional factors (lack of remorse, prolonged suffering, effect on siblings), and trial court’s stated reasons. |
| Judicial questioning/bias (Foster) | State: judge’s questioning was clarifying and appropriate. | Foster: frequent questioning (and one comparison question) manifested bias denying fair trial. | Court: No bias—questions aimed at clarification, no tone or conduct showing partiality, and jury instructions cured any remote appearance of opinion. |
| Sufficiency—Torture (Foster) | State: evidence showed forcible restriction, great bodily injury, and intent to cause extreme pain. | Foster: argued lack of proof that Immanuel lacked capacity to consent and lack of intent to cause extreme pain. | Court: Evidence sufficient—child’s age/care dependency established lack of consent capacity; circumstantial evidence (prolonged malnutrition, immobilization, knowledge and inaction, fear of CPS) supported intent. |
| Juror for cause (Jehovah’s Witness) (Foster) | State: trial court reasonably disbelieved late assertion; no prejudice. | Foster: juror’s faith would preclude judging others; should have been excused or questioned. | Court: No plain error—record does not establish juror actually was Jehovah’s Witness, and if so, juror likely favored defendant; no prejudice shown. |
| Instructional amendment re: capacity/"dependent" (Foster) | State: added language clarifying that jurors may consider child’s age/dependency for consent capacity. | Foster: now contends extra language was erroneous and prejudicial. | Court: Foster waived challenge by counsel’s agreement in the trial court; no preserved error. |
| Sufficiency—First‑degree child abuse (Foster) | State: evidence showed defendant knowingly caused serious physical/mental harm. | Foster: lacked intent to cause serious harm; she did not intend death. | Court: Evidence sufficient—circumstantial proof of knowledge/intent supports conviction; jury resolved credibility. |
| Ineffective assistance—failure to request lesser‑included instructions (Foster) | State: trial counsel not ineffective; evidence only established greater offense. | Foster: counsel should have requested instructions for 3rd/4th degree child abuse. | Court: Even assuming lesser offenses existed, evidence proved serious harm only; omission was not deficient or prejudicial. |
Key Cases Cited
- People v Hardy, 494 Mich 430 (court reviews sentencing guidelines factual findings for clear error; statutory interpretation de novo)
- People v Datema, 448 Mich 585 (involuntary manslaughter defined as an unintentional killing; death is element)
- People v Houston, 473 Mich 399 (limitations on OV scoring for homicide)
- People v Lockridge, 498 Mich 358 (sentencing guidelines rendered advisory; appellate review for reasonableness)
- People v Steanhouse, 313 Mich App 1 (appellate standard—Milbourn proportionality—for review of post‑Lockridge departures)
- People v Milbourn, 435 Mich 630 (proportionality principle for sentencing departures)
- People v Francisco, 474 Mich 82 (harmlessness of scoring errors that do not alter guidelines range)
- People v Stevens, 498 Mich 162 (limits and review of judicial questioning for bias)
- People v Henderson, 306 Mich App 1 (intent may be inferred from circumstantial evidence)
- People v Maynor, 470 Mich 289 (intent standard for first‑degree child abuse)
- People v Unger, 278 Mich App 210 (conflicts in evidence resolved in favor of prosecution)
- People v Trakhtenberg, 493 Mich 38 (standard for claims of ineffective assistance of counsel)
- People v Carines, 460 Mich 750 (plain‑error standard)