*1 PEOPLE v MAYNOR April February 12, 2003, Decided at Detroit. Docket No. 244435. Submitted appeal granted, 8, 2003, Mich 943. at 9:15 Leave to A.M. Maynor by Tarajee the for trial S. bound over district court the was involuntary manslaughter on two counts of Oakland Circuit Court children, regarding on the the of her two rather than two deaths prosecution. first-degree felony sought by murder the counts of abuse, first-degree court that child MCL The district concluded felony, crime, 750.136b(2), underlying specific-intent a is probable there was cause to believe that the defendant that not requisite with the intent when the defendant left her children acted pros- they exposure. car died due to alone a hot where heat felony-murder charges in moved to the circuit ecution reinstate Wendy charges, court, Potts, L. The circuit J. court reinstated concluding first-degree general-intent crime, child abuse is a probable and that there was cause believe the defendant com- first-degree abuse, second-degree as well as murder. mitted child appealed by granted. leave The defendant Appeals of held: The Court concluding 1. The circuit erred as a matter of law in court first-degree A child abuse is a crime. is required specific-intent be committed is first-degree governing abuse, 750.136b(2), child The statute MCL person provides guilty first-degree if that a is of child abuse intentionally knowingly physical person causes harm serious mental serious harm to child. Felony 750.316, essentially murder, second-degree 2. MCL mur- felonies in MCL der elevated one of the enumerated 750.316. felony First-degree child in MCL abuse is a enumerated 750.316. correctly The circuit court ruled that the defendant could be support charged felony with murder because there was evidence to finding probable regarding charges second-degree cause first-degree Thus, abuse. murder and the order circuit reinstating charges first-degree felony must murder court be result, right affirmed because the circuit court reached the albeit wrong for reason. Affirmed.
Opinion of the Court C.J., concurring, agrees stated that while he with majority’s abuse, conclusion if 750.136b(2), is a crime there was circum- sufficient jury requisite stantial evidence which a from could infer the *2 believes, crime, conflicting for that he after case law review and legislative development statute, the of the child-abuse that first- general-intent degree crime, child abuse is and the circuit court’s should be affirmed on order that basis. First-Degree — — Specific Criminal Law Child Abuse Intent. First-degree specific-intent (MCL 750.136b[2]). is a child abuse A. Cox, Attorney Michael General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Pros- ecuting Attorney, Joyce F. Todd, Chief, Appellate Divi- sion, Letica, and Anica Assistant Prosecuting Attor- ney, people. for the
Hatchett, Dewalt & Hatchett Elbert L. (by Hatchett) for the defendant. C.J.,
Before: Whttbeck, and Griffin and JJ. Owens, Owens, J. Tarajee Maynor Defendant S. appeals by leave granted the circuit court’s order granting the prosecution’s motion reinstate the charges, consist- ing of felony two counts of first-degree murder, MCL 750.316(l)(b), underlying with the felony being first- degree abuse, MCL 750.136b(2). We affirm.
On 28, 2002, June defendant left her ten-month-old daughter three-year-old son alone in a hot car for approximately 3V2 hours. When defendant returned to car, she found both children dead back seat. The medical examiner determined that cause of death was hyperthermia, exposure, or heat from being left the hot car. prosecution sought The bind defendant on over two counts of first-degree fel- ony murder, with first-degree child abuse as the felony. underlying The district court ruled that first-
Opinion of the Court
degree
crime,
awas
child abuse
probable
believe
was not
cause to
found that there
requisite
The
with
intent.
defendant acted
only
that there was
court further concluded
district
involuntary manslaughter.
probable
Accord-
cause for
ingly,
two
on
court bound defendant over
the district
involuntary manslaughter.
counts
prosecution
rein-
the circuit court for
The
moved in
felony-murder charges.
The circuit
statement
prosecutor’s
holding
granted
motion,
court
first-degree
abuse is a
probable
found
there was
circuit court also
had committed this
to believe defendant
cause
second-degree
offense,
Thus,
as
as
murder.
well
felony-murder charges.
court reinstated the
appeal, defendant
the circuit
On
contends
ruling
*3
a
child abuse is
court erred in
Ordinarily,
general-intent
the
the decision of
crime.
for
motion
bind over is reviewed
district court on a
to
People Stone,
558,
an abuse of discretion.
v
(2001). However, we review this
561;
750.136b(2),provides guilty as “A follows: person degree child in the first if the know- of abuse intentionally physical ingly or serious or seri- causes specific- Generally, ous mental harm to child.” requires beyond act intent crime a criminal intent the only requires done, whereas a crime proscribed physical perform the Peo- the intent act. App ple Whitney, 230, 254; v 228 Mich 578 NW2d329 (1998). People Maynor Opinion Court 86;
In People Gould, App 79, 225 Mich 570 NW2d we opined that (1997), first-degree abuse was a in However, denying Supreme leave, our Court observed our ruling “that is a specific-intent abuse is dictum, light panel’s of the that, conclusion even under standard, the circuit court not err in did denying the defendant’s motion for directed verdict.” People Gould, Accordingly, Mich 955 (1999). Gould construction of the statute governing first- degree precedent. child abuse is not binding People v Borchard-Ruhland, 286; NW2d 1
Nevertheless, we analysis believe that our in Gould fact, adopt was following portion sound. In we analysis the Gould as our own: “knowingly” The word is not defined in statute. statute, every Unless defined in the word of the statute plain ordinary meaning. should be accorded its and 8.3a; 2.212(1); People Gregg, 208, 211; MSA expressly If a statute does not define may terms, dictionary Id., pp its a court consult definitions. 211-212. Dictionary (6th ed) “knowingly”
Black’s Law
defines
as:
knowledge; consciously; intelligently; willfully;
“With
inten-
tionally” (emphasis
dictionary
supplied). Given the
defini-
plain
“knowingly”
applying
tion of the word
and
ordinary meaning
language
to the
word
the stat-
ute,
we
conclude
as contained
the stat-
thing
“intentionally.”
ute means the same
as the word
According
dictionary definition,
words
“know-
“intentionally”
ingly”
synonymous. [Gould, supra,
are
*4
App
84.]
that,
We further note
although
Dictionary
Black’s Law
(7th
does not define
does
ed)
“knowingly,” it
define
App
242
238
Mich
Opinion
the Court
showing
“[hjaving
“knowing”
or
awareness
as
understanding;
con-
deliberate;
. .
.
well-informed
College
Similarly,
Webster’s
House
Random
scious.”
pertinent part
“knowing”
Dictionary (2001)
defines
“intentional,” and “deliberate.”
“conscious,”
as
panel
support
also
the Gould
conclusion,
of its
In
repeatedly
opined
concluded
has
“that this Court
‘knowingly’
required to be committed
that is
a crime
supra
specific
at 85. We
Gould,
intent crime.”
ais
“
typically
recently recognized
found
‘[w]ords
“knowingly,”
specific
“will-
statutes include
’ ” People
“intentionally.”
“purposely,”
fully,”
App
650 NW2d
605, 611;
Mich
Disimone, 251
Davenport,
People
quoting
(2002),
App
579-580;
Generally, magistrate must bind a defendant over for trial if, preliminary at of the conclusion exami- nation, probable “there cause to believe that a fel- ony has been committed and that defendant commit- ted it.” People v 250 Carter, App 510, Mich 521; 655 NW2d 236 766.13. cause “Probable exists when there is a ground suspicion reasonable sup- ported by sufficiently circumstances strong to war- person rant a cautious to believe that the accused is guilty of the offense charged.” Carter, supra at 521.
As above, noted defendant was with charged felony murder, felony MCL 750.316. haveWe defined murder as follows:
(1)
killing
being; (2)
of a human
with the intent
kill,
bodily harm,
great
high
to do
or to create a
risk of
bodily
great
knowledge
death or
harm with
death
great bodily
probable result;
harm
(3)
was the
while com-
commit,
mitting, attempting
assisting
commis-
any
specifically
sion of
of the felonies
enumerated in MCL
[People Hutner,
App 280, 282-283;
750.316 ....
(1995).]
In other essentially murder is second- degree murder, by elevated one of the felonies enu- App 244 Mich Opinion of the Court People Magyar, See merated in MCL 750.316. First-degree 412; 648 NW2d 408, Mich in MCL enumerated child abuse is one felonies 750.316(l)(b). “(1) murder are: second-degree
The elements of with defendant, (3) an death, (2) caused act of justification or excuse.” Peo- malice, without (4) 463-464; ple Goecke, *6 kill, defined as the intent to “Malice is do bodily harm, to or intent to great intent cause likeli- disregard act in and wilful an wanton tendency that of such behavior is to hood the natural Here, at bodily harm.” Id. 464. great cause death or dispute tragic is no that defendant caused the there at In addi- Goecke, supra children. 463. death her justification a tion, indicating there was no evidence killing. noted, excuse Id. As malice includes for the an act in wanton and wilful disre- “the to do tendency of of the likelihood that the natural gard bodily cause harm.” great such behavior is to death during Id. at 464. the evidence introduced Among preliminary examination was defendant’s admission in a for she her children unattended hot car left approximately hours. Her act of the chil- leaving intentional, was rather than acciden- dren unattended tal.1 there was sufficient evidence that Accordingly, mal- conduct fell within the definition of defendant’s we was Consequently, ice. Id. conclude there support ample finding probable evidence to at second-degree Carter, supra for murder.2 cause 521. supra Goecke, Second-degree at 464. murder is 2 Thus, reasons, for we conclude that the district court the same only finding supported involun-
abused its discretion in the evidence Opinion of the Court prosecution determine whether
Next, we must during preliminary evidence presented sufficient support probable cause finding examination to already concluded Having for child abuse. requires specific intent, primary the crime specifically intended to question is whether defendant seriously children, 750.136b(2). harm her “Cir- aris- evidence and reasonable inferences cumstantial support a from the evidence are sufficient ing People Terry, App 447, 451; bindover.” Moreover, if “there is credible evi- NW2d 641 support and to the existence of negate dence both question a factual exists that crime, an element of the jury.” be left to the Id. should stated that she did not Here, although defendant die, her state- self-serving intend for the children to obviously inquiry. end the Again, ment does not her children in evidence indicated that defendant left approximately fact, regard- a hot car for 3V2hours. In weather, leaving less of the the children unattended long in a car for such a time raises considerable *7 merely respect negli- doubt with to whether she was her Furthermore, defendant did not check on gent. left children, although the evidence indicated that she In get something the salon to herself to eat and drink. suggested defendant’s statement addition, although not have known that the children were might that she evidence also risk, noting sug- at it is worth of the car that she rolled down at least one gested an inch and a half. These acts belie windows about supra prob- taiy manslaughter. Stone, very least, At the there was at 561. support charges second-degree murder. cause to able by Whitbeck, C.J. her ignorance claim of risks.3 Accordingly, there was sufficient circumstantial evidence from jury which a requisite could infer the intent for first- degree child abuse.4 Carter, supra at 521. Conse- quently, we conclude that the circuit court did not err felony-murder charges. Jory, supra reinstating at 425.
Affirmed. J., concurred.
Griffin, Whitbeck, I (concurring). agree major- with the ity’s conclusion that, assuming first-degree specific-intent abuse is a crime, there was sufficient circumstantial evidence from jury which a could infer the requisite intent for that crime. I do not agree, however, with the majority’s conclusion that first- degree child abuse is a Rather, I believe the trial court was correct in its conclusion that first-degree child abuse is a general-intent crime, and I would affirm on that basis. questionable ignorance It is whether her claim of is even sufficient to very defeat the rather obvious fact that hot weather makes cars hot. The prosecution compellingly argued people below that know not to leave days. Indeed, every milk quickly in their cars on hot new driver learns that, days, temperatures on hot inside a car will exceed the outside temperature relatively period. words, in a short In other it does not require background get very a scientific to know that cars hot on summer days. knowledge required Nor is extensive medical to realize that such
temperatures people, especially Thus, are harmful to children. we believe jury appraise veracity should regarding of defendant’s statements knowledge risks, her or lack thereof. very least, At the the issue of defendant’s intent should be left to a jury. Terry, supra at 451. *8 People 247 v by Whitbeck, C.J. Concurrence SHEKMAN-HUFFMAN, GOULD, AND LERMA IN
I. THE REASONING that provides statute child abuse first-degree The degree in the first of child abuse guilty is person “[a] intentionally causes seri- or person knowingly if the a child.”1 In mental harm to or serious physical ous specific examine its we must interpreting statute, and every meaning, word has presume that language,2 would render a statute any avoid construction surplusage nugatory.3 any part of it opin- this Court’s majority approval cites with The this Court held that There, v Gould4 People ion in crime.5 was a child abuse first-degree its panel explained majority notes, the Gould As the reasoning as follows: Dictionary “knowingly” as: (6th ed) defines Law
Black’s willfully; knowledge; consciously; intelligently, inten- “With dictionary tionally" supplied). defini- (emphasis Given applying plain “knowingly” and tion of the word language ordinary meaning of the stat- of the word to in the stat- ute, as contained we conclude “intentionally.” thing word the same as the ute means dictionary definition, the words “know- According to the “intentionally” synonymous. Thus, we con- ingly” are specific required first-degree under the clude that a words, in order to convict abuse statute. In other abuse, it must be shown defendant of 1 750.136b(2). 2 App 229, 232; (1996). People Pitts, 216 Mich 3 (1999). Borchard-Ruhland, 285; People NW2d 1 597 4 Gould, App 79, 86; People 570 NW2d notes, correctly, Supreme majority classified this Court also Gould, Mich 955 in Gould as dictum. See Court’s conclusion supra Gould, at 84-85. 256 by Whttbeck, *9 child, merely
the defendant intended to harm the not harm.[6] engaged the defendant in conduct that caused problem analysis, apart ques- with this from its disjoined tionable conflation of the terms “intentionally,” appear- is its assertion that the “intentionally,” syno- arguable ance of the word or its nym “knowingly,”unambiguously Legis- indicates the first-degree spe- lature’s intent to make child abuse a Although may cific-intent crime. this conclusion be intuitively appealing, a closer look at this Court’s varying determining requisite methods for given under a simple. statute reveals that the answer is not so panel’s approach
While the Gould is not entirely unsupported, diverging line of cases, which explore depth, I will in some holds that the mere presence dispositive making of certain words is not in this determination. suggest,
I
therefore, that the dictum in Gould is not
persuasive. My
strength
view on this is somewhat
by subsequent jurisprudential history.
ened
This Court
People
in
v
relied on Gould and
Sherman-Huffman
language
gov
that,
held
because the
of the statute
erning first-degree
nearly
child abuse was
identical to
language
governing third-degree
of the statute
third-degree
specific-
child abuse,
child abuse was a
Supreme
regardless
intent crime. The
Court
that,
held
third-degree
specific-
of whether
child abuse is a
general-intent crime, there was sufficient evidence to
third-degree
convict the defendant of
child abuse.8
6 Id.
7 People
Sherman-Huffman,
App 264, 266;
14Lerma, supra at 568.
15Id. at 569. 256 by Whitbeck,
“knowingly,” general encompass while intent crimes would “recklessly” which those crimes can be committed either “negligently.” Thus, specific in order commit a intent crime, subjectively an offender would have to desire or prohibited occur, know will result whereas in a general crime, prohibited only result need be rea sonably expected voluntary to follow from the offender’s act, any irrespective subjective have desire to accom result.[16] plished such Using approach, panel this the Lerma then found “willfully” the term fell within its definition of a First, crime.17 and specifically, most I note the Lerma decision under is, MCR not 7.215(I)(1), binding precedent. Second, and more generally, Delphic reference to mental states set proposed out in “various criminal presumably codes” includes Model Code, Penal which, apart from the fact adopted that it has not been Michigan, actually takes the view that the term “knowingly” indicates what have would been a crime at com- mon law.18 Third, quite broadly, Lerma panel’s suggestion that “purposefully” the words are, respectively, antonyms for the words “recklessly” and “negligently” is an opaque such dichotomy to prevent analysis. as meaningful my
Thus, view, Gould, neither nor Sherman- Huffman, nor Lerma requires finding first- degree child abuse is a specific-intent crime. If this is
16 Id. at 569-570. 17 Id. at 570. 18 394, v Bailey, 405; 624; United States See 444 US 100 S Ct 62 L Ed 2d (1980), citing 2.02, (Tent. Comments, p 575 Model Penal Code § 125 Draft 4, 1955); Scott, 28, pp No. LaFave & on § Handbook Criminal Law 201-202 (1972) (“In general sense, ‘purpose’ corresponds loosely with the com specific concept intent, ‘knowledge’ corresponds mon-law loosely while concept general intent”). with the 251 People v meaning words anew the must consider so, we “intentionally.” majority turns to initially, dictionary at least turn, I would definitions. sparse might as be. law, case as it relevant to VERSUS SPECIFIC INTENT H. GENERAL INTENT A. OVERVIEW particular Specific criminal as a intent is defined beyond general intent is done, whereas the act intent merely physical perform itself.19 act
the intent to succinctly People v “A statute Herndon. As stated prosecutor prove requires a to that the defendant perform general the criminal act creates intended requires proof that the A intent crime. statute beyond ‘particular had a criminal intent defendant specific intent creates a crime.”20 act done’ B. CASES THE SPECIFIC-INTENT pointed Judge, Justice, Markman out As then now People this has vacillated Perez-DeLeon,21 Court regarding knowl- whether the existence of issue specific edge makes a crime one of as an element general cases intent. There a line of rather than “pur- words, such as refers to certain touchstone that posefully,” “knowingly,” “willfully,”“purposely,” specific- “intentionally,” signal that the offense is People Centers In v American Medical intent crime. [19] People People Perez-DeLeon, Lardie, Herndon, 231, 240; App 371, 385; 55; 568 NW2d NW2d 376 (1996). *12 252 238 256 Mich C.J. by Concurrence Whitbeck, Michigan, charged Ltd,22 the defendants were with fraud. Medicaid The elements of offense are that person employee makes a claim to an state knowing under the Social Welfare Act23 the claim to Judge, false, fictitious, be or Then fraudulent.24 now Kelly, citing Justice, Lerma, stated that when a stat- requires ute that be the criminal act committed either “purposefully” “knowingly,” specific- the crime is a intent crime.25
Similarly, People in this Court held Ainsworth,26 stealing retaining that the offense of a financial- (more commonly transaction device known as a card) specific-intent given credit constitutes a crime, knowledge part is an essential of the crime, requires person because ingly” statute27 “know- Thus, commit the offense.28 under this line of presence cases, the of certain touchstone words signals Legislature’s statute intent that the crime specific-intent is a crime. are
There also cases address the issue from opposite although using direction, the same People touchstone words. In v Davenport,29 this Court interpreted carjacking statute30and found that the carjacking crime of Citing was not a People American Medical Centers and v Nor- App 135; [22] 24 MCL 400.607. People v [23] MCL 400.1 et [324] NW2d American Medical Centers seq. [782] (1982). Michigan, Ltd, People Ainsworth,
[26]
[28]
at 325.
Ainsworth, supra
[25]
American Medical
MCL
750.157n(l).
Centers, supra
App 321;
at 153.
495 NW2d
[29]
People Davenport,
750.529a(1).
App 577;
stated,
typically
Davenport panel
“[w]ords
man,31
‘know-
statutes
include
specific
found
”
‘intentionally.’
‘willfully,’ ‘purposely,’
ingly,’
were absent
these words
panel
then observed
found that
statute and therefore
carjacking
from the
*13
specific-intent
carjacking was not
crime.32
in
cited
Similarly, this Court
Disimone,33
in
approach
the same
by
majority,
here
the
used
makes it a crime to offer
the statute that
interpreting
once in the
attempt
to vote more than
to vote
voting
either in the same or another
election,
same
panel,
Davenport,
citing
The Disimone
precinct.34
refrained from
the
Legislature
using
noted that “the
or ‘inten-
‘willfully,’ ‘purposefully’
‘knowingly,’
words
phrase
vote,’
in
‘offer to
tionally’
reference to
specific
intent
typically
words
found
statutes.”35
panel
proving
The Disimone
concluded that
vote,”
prosecutor
defendant made an “offer to
required
not
to establish that the defendant had
was
cases,
specific
Thus,
criminal intent.
under this line of
same touchstone words in a stat-
the absence of the
ute
intent that the crime is
signals
Legislature’s
C. THE GENERAL-INTENT CASES
cases,
of
is, however,
There
another line of
some
rely
presence
which do not
on the
absence of
In
words to
intent.
Peo-
signal legislative
touchstone
[31]
People Norman,
[32]
Davenport, supra at 580.
App 271, 275;
It is fair to conclude, I believe, that had the ccw
“knowingly,”
statute used the touchstone word
panel
Lane
would have reached the same result, for
clearly
judicially imposed
it found that the
“knowl-
edge element” was insufficient to convert the crime
specific-intent
Similarly,
People
to a
in
v
“knowledge
Karst,40 the Court found that the
ele-
36People Lane,
App 11;
(1980).
v
102 Mich
40People Karst, App 413; People Maynor 255 by Whttbeck, only specific-intent, general-intent, a ment” is not requirement.41 general-intent cases, however, do refer to Other words. In some of the touchstone Henry,42 example, construed the statute43 mak- for this Court occupied discharge ing firearm in an struc- of a in asserted Lane, ture a crime. As the defendant ruled defense, intoxication as a but the trial court question in was a that the crime therefore, that intoxication was not a defense.44 and, discharge-of-firearm stat- However, Lane, unlike specifically the word ute included “intentionally.”45 panel Davenport, Henry that, noted in this Court The “intentionally” stated that the use of the word is one typically in of those included statutes.46 panel say: went on to However, we do not believe the use of the word “inten tionally” discharge-of-firearm in indicates that statute] [the require specific Legislature intended the offense to “intentionally” Rather, intent. the use of the word [the discharge-of-firearm prevent was intended to an statute] discharge innocent or accidental of a firearm an occu crime.[47] pied constituting structure from Accordingly, Henry panel held that proof require
because the statute not of the intent to does specific particular cause a result or the intent that a conse- quence performance prohib- occur as a result of the 41Id. at 416. 140; People Henry, NW2d 750.234b(2). supra Henry, at 143. *15 45Id. 46Id. at 144-145. 47Id. at 145. act, intentionally only requires proof
ited but defendant discharged firearm, correctly the trial court concluded discharge occupied the crime of of a firearm in an crime.[48] general is a structure D. SUMMARY say, Judge, believe, It is fair to I that then now Jus- tice, Markman’s statement that this Court “vacil- has specific- lated” on how to define something intent crimes is of an understatement. Put bluntly, appears marching more this Court to be in two different directions on the issue. We have said spe- “knowingly” signals that the use of the word a cific-intent crime, see American Medical Centers. “knowledge However, we have also said that the ele- specific- ment” is insufficient to convert crime to a crime, intent implied, see Lane and said, Karst. We have “intentionally” spe- signals
that the word cific-intent crime, see American Centers, Medical Davenport, However, Disimone. we have also “intentionally” signal said that the word does not Henry. crime, see occasionally I conclude that, as is case published opinions provide law, of this Court two approaches, reasoning different or “ladders” of in Karl Llewellyn’s phrase,49 dealing felicitous with this approach, presence issue. Under one or absence of certain touchstone words will determine the out- Henry panel 2d, Law, Id. The § also cited 21 Am Jur Criminal p 215, that, provisions, qualifying which states the absence of “[i]n general terms ‘intent’ and ‘intentional’ a criminal statute refer to crimi nal intent.” Llewellyn, Study (New See The Bramble Bush: On Our Law And Its Publications) (1960), p York: Oceana 72. *16 People Maynor by
Concurrence C.J. Whitbeck, or opposite approach, presence come. Under the mat- words alone will not decide absence of these I majority adopts approach; here the first ter. The reluctantly Moreover, I con- adopt would the second. first- governing of the statute clude that the words words “know- specifically, child degree abuse — alone, us suffi- “intentionally” not, give ingly” —do the Legisla- cient to ascertain the of guidance to certain Therefore, I believe that we must turn ture. interpretation to the of statutes. relating canons III. THE HISTORY OF THE CHILD-ABUSE STATUTE CHILD
A.
AND CHILD TORTURE
CRUELTY
statutory
original
provisions relating
child
abuse were contained in
Any parent
person
protection
guardian
under
or
or
whose
any
may
tortures, cruelly
unlawfully pun
be,
who
or
unlawfully
deprives
ishes, wilfully,
negligently
or
or
of nec
essary food, clothing
shelter,
wilfully
or
or who
abandons a
years
habitually
age,
child under sixteen
or who
causes
permits
injured,
or
the health of such child to be
his or her
by
injury
endangered
exposure,
life
want or other
to his or
person,
permits
any
engage in
her
or cause or
him or her to
occupation
likely
health,
endanger
that will be
his or her
deprave
habitually permits
or
his or her morals or who
him
frequent public places
purpose
begging
or her to
for the
receiving alms,
frequent
company
or
or to
of or consort
by
reputed
prostitutes,
training
thieves or
or
vicious
with
child, shall, upon conviction,
depraves the morals of such
felony.[50]
guilty
be deemed
of a
MCL 750.136
(emphasis
added).
Legislature
separate
In 1958, created a
crime of
provided
child torture. Section 136a of
or control who tortures ,”51 felony guilty child, such . shall be . . This act also amended MCL 750.136to remove the word “tor- quoted portion tures,” but left the of the statute other- unchanged. wise interpreted child-cruelty
In 1985, this Court *17 People Despite statute, 750.136, MCL in v Jackson52 presence the fully,” of one of the touchstone words, “will- panel specific
the Jackson found that intent is cruelty.53 not an element of the crime of child Two years interpreted earlier, this Court had the child-tor- People statute, ture in 750.136a, Webb,54 v required showing found that it that a defendant “intentionally inflicted extreme, intense, or severe pain injury upon the victim.”55
Relying precedent, among majority on this others, panel People Kelley56 of the in reached the conclu- sion that child torture is a crime.57Vis- iting Judge Grathwohl, however, dissented. He noted upon dictionary that the in decision Webbwas based definitions, none of which used the term “intent.”58He specific also noted that, Jackson, under intent is not cruelty.59 an element of child He then stated that, “[i]f 51 MCL 750.136a.
[52] Id.
[53]
at 287.
Jackson,
140 Mich
App 283;
[58] Id. at 225.
[59] Id. People v cruelty specific is not a intent crime and the dif- cruelty child torture and child ferentiation between severity injury inflicted,’ of the . . . ‘the of the degree specific one wonders how child torture can be a intent crime.”60
Approximately later, Supreme seven months majority in Kelley Court reversed the decision I believe it Thus, “for reasons stated its dissent.”61 Jackson, in the view of this Court in conclude, fair to cruelty crime, and, was a in the general-intent Supreme Kelley, view of the Court in child torture there, was a crime. If the matter rested I think the outcome in this case would be clear: of this nature children would be against gen- crimes not However, eral-intent crimes. the matter does rest there.
B. THE
AMENDMENTS
September
Effective
this Court’s
1988—after
decision in Jackson and
this Court’s decision in
after
Kelley,
Supreme
but
Court’s reversal
before
Kelley
repealed
child-cruelty
Legislature
—the
statute and the child-torture
and replaced
statute
*18
In
provisions
degrees
these
with four
of child abuse.62
phrase
used the
doing,
Legislature
“knowingly
so
intentionally”63
or
when
the crime of first-
creating
today.
child abuse that we consider
degree
Legis-
phrase
lature did not use this
when
the crime
creating
abuse,64
child
but returned to its use
second-degree
[60]
Id. at 225-226.
[61]
People Kelley,
[62]
[64]
[63]
MCL
MCL
MCL
750.136b;
750.136b(2).
750.136b(3).
see also
[433]
Mich
People Kelley, supra,
882;
If the matter rested there, we well be at sea. interpret first-degree Should we the crime of cruelty abuse to be more akin to the crime of child despite phrase and therefore, the use of the “know- ingly intentionally,” to be a crime? Alternatively, interpret should we the crime of first- degree child abuse to be more akin to the crime of child torture and therefore to be a although crime? I lean to the conclusion, it is admit- tedly call, close that the crime of originates mainly child-cruelty abuse from the statute. Frankly, statutory interpreta- however, the canons of People Babcock, [66] People Lange, 750.136b(4). App 247, 255; 64, 74-75; 624 NW2d (2002), citing *19 People Maynor 261 C.J. by Concurrence Whitbeck,
tion us not at all in help answering questions. these Fortunately, once the again, matter does not rest there.
C. THE 1999 AMENDMENTS In 1999, 3, effective April Legislature amended the again child-abuse statute. The amend- ments did not change the of the section on language first-degree However, abuse. the amendments the section changed on child abuse second-degree and, at several points, phrase utilized the “knowingly intentionally.”67 Applying the same canon statu- tory interpretation, presume we can that the Legisla- ture was aware this diverging views of Court regarding meaning of touchstone words such as “intentionally.” More to the point, we can however, presume that was Legislature aware Gould68 this Court held the crime of be a abuse to upon but that, review, Supreme Court classified holding this as Indeed, dicta.69 I note Supreme Court took action on 9, 1999, this March well the Legislature changes made its to the before statute. child-abuse
D. SUMMARY
Considering
history
totality
this
in its
to the
—and
extent that we are able
read
legis-
the tea leaves of
by
statutory
lative intent
applying
interpre-
canons of
tation —I conclude
phrase
use of the
Legislature’s
[68]
Gould, supra,
[69]
Gould, supra,
750.136b(3)(b)
IV. CONCLUSION opinion a cer- A careful reader of this will discern skepticism process in which courts tain about legislative engage ascertain I view the use to intent. history particularly legislative made of statements — by legislators in the course of floor debate or staff- analyses reports generated be, best, and at —to judi- undertaking. Further, various most dubious inteipretation particu- cially constructed canons — larly making presumptions those that involve based upon knowledge imputed Legislature to the —some- to invite in crea- times are so theoretical as exercises wholeheartedly tivity. I The canon to which most sub- simplest: presumed Legislature is the is scribe plainly expressed70 meaning intended the it and have statutory language unambiguous, when is clear and [70] People Venticinque, 99-100; by judicial required construction is neither nor permitted.71
Here, while the words “intention- ally" simple are enough, meaning is, their in context, far from clear and unambiguous. Nonetheless, I my believe conclusion that abuse is be the First, correct one. I persuaded by am not in Gould, Sher- analyses man-Huffman, Lerma. My conclusion in this considerably regard strengthened the fact that Supreme Court has twice labeled the specific- portions analyses these to be dicta. Second, Court this has on vacillated whether presence or absence of touchstone words as such *21 “intentionally” signals the Legisla- ture means to make the crimes at issue to be general- or specific-intent American crimes; every for Medical Centers there Karst, is a Lane or a for and every Davenport or Disimone Henry. there is Con- I sequently, majority think the errs when it adopts the Gould analysis as its own.
Third, finally, I believe that when we view the histoiy legislation in this area aas whole —and I emphasize here I am not referring “legislative history” in the sense of floor debates or staff reports history leads to the conclusion, —this although admittedly it is call, a close first-degree child originates mainly abuse from child-cruelty statute. reluctantly Accordingly, applying presumption knowledge Legis- lature the decisions of this Court and the Supreme Court, I believe trial court was correct in catego-
[71] People Philabaun, 255, 261; by Whitbeck, as child abuse rizing first-degree affirm that and I would on basis. crime,