People v. Porterfield
420 N.W.2d 853
Mich. Ct. App.
1988
Check Treatment
Per Curiam.

Following a bench trial, defendant was convicted of child torture, MCL 750.136a; MSA 28.331(1). Defendant was sentenced to from three to ten years’ imprisonment. We affirm.

Defendant first claims that there was insufficient evidence to convict him of the crime. In reviewing a sufficiency of the evidence question following a bench trial, this Court must consider the evidence in the light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Petrella, 424 Mich 221, 268-270; 380 NW2d 11 (1985). Defendant first contends that, to be convicted of child torture, the prosecution must prove not only that he intentionally inflicted extreme, intense, or severe pain upon the victim but also that he did so for various purposes, such as sadistic pleasure, coercion, or punishment. In People v Biegajski, 122 Mich App 215, 223; 332 NW2d 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 where abuse is inflicted for sadistic purposes or for a purpose other than punishment. The Biegajski panel adopted the dictionary definition of torture even *565 though it noted that Black’s Law Dictionary defined torture as "the infliction of violent bodily pain upon a person.” Biegajski, supra, p 223. In People v Webb, 128 Mich App 721, 727, n 3; 341 NW2d 191 (1983), lv den 418 Mich 966 (1984), and People v Shelton, 138 Mich App 510, 514-515; 360 NW2d 234 (1984), other panels of this Court rejected the reasoning of the Biegajski panel and held that the degree of severity of the injury inflicted rather than the defendant’s motive in perpetrating the oifense distinguished child torture from child cruelty. Hence, before a defendant may be convicted of child torture, it need only be shown that he intentionally inflicted extreme, intense or severe pain or injury upon the victim. Id. We agree with the Webb and Shelton panels. Because defendant concedes and the trial court found that his conduct satisfies the Webb-Shelton standard, no error occurred when defendant was convicted of child torture. Petrella, supra.

Defendant further contends that there was insufficient evidence to establish that he fractured his six-week-old son’s ribs and leg. After reviewing the trial transcript, we can only conclude that, when the evidence is viewed in the light most favorable to the prosecution, a rational trier of fact could have found that defendant was the person responsible for both of those acts. Moreover, defendant’s single act of fracturing the child’s skull also constitutes child torture. We reject defendant’s argument that multiple acts are required. Biegajski, supra, p 223.

Defendant next claims that the magistrate abused his discretion in binding him over on a child torture charge. An examining magistrate’s function is to determine whether a crime has been committed and whether there is probable cause for charging the defendant with its commission. Peo *566 pie v Makela, 147 Mich App 674, 679; 383 NW2d 270 (1985). In doing so, the magistrate may pass upon the credibility of the witnesses; however, where the evidence conflicts or raises reasonable doubt concerning the defendant’s guilt, the magistrate should bind the defendant over because such issues are to be decided by the trier of fact. Id. A magistrate’s decision to bind a defendant over will not be overturned absent an abuse of discretion. Id.

Defendant again claims the prosecutor failed to prove that he acted for various purposes, such as sadistic pleasure or coercion. As noted above, defendant’s motive is not an element of the crime. Shelton, supra; Webb, supra.

Likewise, defendant again claims that there was no probable cause to believe that he was the person guilty of the crime charged insofar as it related to the child’s ribs and leg. Having reviewed the preliminary examination testimony, we hold that the magistrate did not abuse his discretion in binding defendant over. Makela, supra. Again, we note that proof of the child’s fractured skull was sufficient in and of itself to support binding defendant over even though defendant claimed the injury was accidental. Id.

Defendant next claims a protective services worker’s testimony concerning a statement defendant made in the course of a child-neglect proceeding was inadmissible because he was not informed of his Miranda rights (Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 [1966]) at the time he gave the statement. Defendant had been arrested and bound over at the time of the interview, but was out on bond. The caseworker advised defendant that he did not have to answer her questions. Before speaking with defendant, the caseworker obtained defense counsel’s consent. *567 The caseworker stated that defendant was not in custody and added that she was not a law enforcement officer and did not work for any police agency. We agree with the prosecutor that, although the caseworker was a state employee, she was not charged with enforcement of criminal laws and she was not acting at the behest of the police; therefore, she need not have advised defendant of his Miranda rights. See and compare Grand Rapids v Impens, 414 Mich 667; 327 NW2d 278 (1982); People v Grevious, 119 Mich App 403; 327 NW2d 72 (1982); People v Faulkner, 90 Mich App 520; 282 NW2d 377 (1979), lv den 408 Mich 916 (1980); People v Hardenbrook, 68 Mich App 640; 243 NW2d 705 (1976). See also 1 LaFave & Israel, Criminal Procedure (1985), § 6.10(c), pp 316-317.

Finally, defendant claims his jury waiver was insufficient because there is no written waiver form in the court file. MCL 763.3; MSA 28.856. People v Pasley, 419 Mich 297; 353 NW2d 440 (1984). The transcript of the jury waiver proceedings indicates that defendant properly waived his right to a jury trial. Id. Apparently, the jury waiver form was misfiled in the trial court’s private file. It has now been properly filed. No error requiring reversal has occurred.

Affirmed.