People v. Portellos
298 Mich. App. 431
| Mich. Ct. App. | 2012Background
- Portellos was convicted after a jury trial of second-degree murder and first-degree child abuse; she was sentenced to 10–20 years for murder and 86–180 months for child abuse, with a downward departure from guidelines for the murder sentence.
- The prosecution appealed the trial court’s downward departure and its scoring of OV 3, OV 5, and OV 19, and this Court affirmed the convictions but vacated the murder sentence and remanded for resentencing.
- The death of Baby Portellos occurred in October 2008; investigators found the baby’s body in a garbage bag next to Portellos’s bed, wrapped in towels.
- Medical testimony showed the baby was born full term, breathed, and died of asphyxia by smothering, with evidence suggesting Portellos may have smothered or otherwise caused the death.
- Portellos had hidden her pregnancy from her mother, prepared for an at-home delivery, and delayed seeking medical help after the baby’s birth, actions central to the state of mind issues on appeal.
- The trial court scored OV 3, OV 5, and OV 19 and departed downward from guidelines; this Court held the OV 3 scoring was erroneous and remanded for resentencing, while upholding the convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for malice and state of mind | Portellos lacked evidence of intent to kill or harm. | (not applicable; use last name) | Sufficient evidence supported second-degree murder and first-degree child abuse. |
| OV 3 scoring — life-threatening injury | OV 3 should be 25 points for death caused. | 0 points appropriate because of conflicting death cause evidence. | OV 3 must be 25 points; error requiring remand for resentencing. |
| OV 5 scoring — psychological injury to family | OV 5 should be 15 points because family sought/needed support. | No clear evidence family required professional treatment. | Trial court did not clearly err; OV 5 remains 0 points. |
| OV 19 scoring — interference with administration of justice | OV 19 should be 10 points for deception about pregnancy. | Lying to officials does not fit OV 19 under cited provision. | No clear error; OV 19 correctly scored 0 points. |
| Remand for resentencing required | Downward departure and OV 3 error affect guideline range. | (not applicable; use last name) | Sentence vacated; remand for resentencing consistent with corrected OV 3 scoring. |
Key Cases Cited
- People v Wolfe, 440 Mich 508 (1992) (concerning sufficiency and appellate review standards)
- In re Winship, 397 U.S. 358 (1970) (standard of proof beyond a reasonable doubt)
- People v Hawkins, 245 Mich App 439 (2001) (relevance of sentencing guidelines and factors)
- People v Tombs, 472 Mich 446 (2005) (application of evidence and state-of-mind standards)
- People v Reese, 491 Mich 127 (2012) (sufficiency and appellate review of evidence)
- People v Goecke, 457 Mich 442 (1998) (evidence and proof standards in criminal causation)
- People v Hess, 214 Mich App 33 (1995) (guidelines and sentencing considerations)