               If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                    revision until final publication in the Michigan Appeals Reports.




                             STATE OF MICHIGAN

                               COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     August 1, 2019
                  Plaintiff-Appellee,

v                                                                    No. 334320
                                                                     Saginaw Circuit Court
DANE RICHARD KRUKOWSKI,                                              LC No. 15-041274-FH

                  Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

                  Plaintiff-Appellee,

v                                                                    No. 337120
                                                                     Saginaw Circuit Court
CODIE LYNN STEVENS,                                                  LC No. 15-041275-FH

                  Defendant-Appellant.


Before: TUKEL, P.J., and SERVITTO and RIORDAN, JJ.

PER CURIAM.

       In these consolidated appeals, defendants appeal as of right their jury trial convictions of
second-degree child abuse, MCL 750.136b(3).1 The trial court sentenced defendant Dane
Krukowski to 36 months to 10 years’ imprisonment and sentenced defendant Codie Stevens to
18 months to 10 years’ imprisonment as well. We reverse, vacate defendants’ convictions and
sentences, remand, and direct the trial court to enter judgements of acquittal in both cases.




1
    Defendants had a joint jury trial before separate juries.



                                                    -1-
                                       I. BACKGROUND

        Defendants are the biological parents of RK. RK was born after a 19-hour labor and,
according to Stevens, was bruised from forehead to mid-chest from the cesarean section delivery.
A few days after his birth, Stevens took RK to see pediatrician Elvira M. Dawis. According to
Stevens, the baby was having trouble keeping formula down and was not easily comforted. Dr.
Dawis testified that, despite being slightly jaundiced, RK was a “well-child” with a “normal-
sized” head. Over time, RK became less fussy.

        On Saturday, February 7, 2015, Krukowski was bathing approximately two-month-old
RK in the bathtub. At some point, RK “jerked” and fell from Krukowski’s soapy hands. RK hit
his head on the side of the bathtub and fell facedown into the water. Krukowski immediately
“scooped” him out of the water and called out to Stevens. The couple dried and dressed the baby
and checked him for injuries. According to Krukowski, RK’s head was “a little red” and “in due
time, bruising started and swelling” and a “dime-sized bruise” eventually appeared. Stevens said
that she observed “slight swelling” and a “tiny little dot” that was yellow in color on RK’s head.
Defendants placed a cool cloth on the baby’s head and then later a frozen bag of peas.
According to Stevens, after the fall RK was a little fussy and would not take a bottle, but his
breathing was normal and he ate later that day. Stevens contacted her mother, who advised that
defendants take the baby to the hospital “just to be safe.” The grandmother visited the home
later that day and observed a “dime-sized” bump on the baby’s head that was not “really raised
up high” with “slight shadowing.” Stevens and Krukowski said that the infant was awake,
smiling, and acting normal by the next day.

         It is undisputed that defendants did not seek medical attention after the bathtub incident
on either February 7 or February 8, 2015. On Monday, February 9, 2015, Stevens, accompanied
by her mother, took RK to see Dr. Dawis for a previously scheduled appointment. The “bump”
on RK’s head was gone. Stevens said that she told the doctor that RK was still somewhat
colicky and that he would not sleep on his back, but that a new formula was working. According
to Dr. Dawis, Stevens reported that RK was fussy, irritable, and could not be pacified. Stevens
testified and her mother confirmed that Stevens told the doctor about RK’s “incident in the tub”
explaining that the baby “had fallen out of [Krukowski’s] arms and had hit his head.” However,
Dr. Dawis denied that Stevens told her about the accident and the doctor’s notes from the visit
stated that “mom denies any fall.”

        Because RK was fussy and irritable, Dr. Dawis recommended that he see a chiropractor.
Later that day, chiropractor Michael J. Dense performed chiropractic adjustments on the baby.
He explained that to treat an infant he suspends the baby by their feet and “give[s] a little pump,”
which makes “the baby arch its back” and causes the spine to align. He said it would make a
sound like “a little click.” Dr. Dense said that the baby “seemed to be relieved after the first
adjustment” and that he was not crying. The maternal grandmother testified that she was
“shocked” at the adjustment and heard RK’s back “crack” at least twice; Stevens said she was
“skeptical” and also heard RK’s back “crack.” RK attended a second and third chiropractic
appointment with another chiropractor in the practice, Dr. Jason Barrigar, on February 10, 2015
and February 18, 2015. Dr. Barrigar observed RK to be “very happy” and “looking around the
room.” He said that he was not informed that RK had hit his head and he said that he did not
personally observe any bumps or bruises on the baby.

                                                -2-
       On February 21, 2016, RK vomited after Stevens fed him. When she attempted to feed
him three or four hours later, he vomited again. She laid him in his crib and when she checked
on him later he was “covered in vomit.” She testified that she was concerned, but thought he
might have the flu. She made him a bottle of peppermint water, which he was able to keep
down. At 10:30 p.m., she made him a smaller bottle of peppermint water. She said he kept it
down and slept through the night, but the next morning she awoke to him “whimpering.” RK
was “lying on his side, [and] his arm was twitching.” She told Krukowski that it looked like the
baby was having a seizure. According to defendants, they immediately took RK to the
emergency room.

        Emergency room nurse Sara Markle testified that RK was alert, his vital signs were
stable, and he did not have any outward signs of trauma. She did not recall defendants disclosing
that RK had suffered a fall weeks earlier. Dr. Jessica Kirby, the emergency room physician, also
said that RK had no obvious signs of trauma, but was exhibiting shaking activity. Her initial
thought was that low-sodium levels or an electrolyte abnormality could be causing the seizures.
According to Stevens, RK was administered Ativan intravenously to stop the seizures.
Krukowski testified that RK’s hand or arm was “cranked” back in an “abnormal position” in
order to insert the needle.

        The baby’s laboratory results were normal, so Dr. Kirby ordered a CAT scan, which
revealed that the baby’s brain was bleeding. Dr. Kirby was concerned that the brain bleeds were
caused by “non-accidental trauma” and suspected abuse right away. After defendants were
informed of the CAT scan results, they relayed to Dr. Kirby that RK had fallen in the bathtub
approximately two weeks earlier. RK was transferred to the pediatric intensive care unit (PICU)
where his condition “deteriorated” to the point that he needed a ventilator and a feeding tube and
had to have a catheter inserted into his fontanelle to relieve pressure and remove fluid from his
skull. Pediatrician Michael Fiore testified that RK had bleeding in the brain, multiple rib
fractures, ongoing seizure activity, and retinal hemorrhages, all of which were assessed as being
the result of “non-accidental trauma.” According to Dr. Fiore, the baby would have died if he
had not received medical treatment when he did.

        Ophthalmologist Majed Sahouri performed diagnostic testing and took “RetCam”
photographs of the back of the baby’s eye. He said that RK had multiple retinal hemorrhages
that were “too numerous to count” and severe enough to be characterized as nonaccidental. He
said that shaking could cause the hemorrhages, but in his opinion, blunt-force trauma could not.
He testified that the hemorrhages were “very consistent . . . with non-accidental trauma, and
shaking” and that he doubted that chiropractic treatment could cause the hemorrhages. He
indicated that some of the hemorrhages appeared darker, which could indicate different ages;
however, he could not specify with medical certainty the ages of the hemorrhages.

       Radiologist Gerard Farrar testified about MRI images of RK’s brain taken on February
22, 2015, which showed “subdural hygroma” or abnormal “fluid around the brain,” as well as
more recent “acute blood.” He said these were from at least two separate injuries. He said there
was “a possibility” that either the subdural hygroma or the acute blood could have been caused
by the bathtub fall. The prosecutor asked him if he had heard of shaken baby syndrome (SBS)
and whether that could have caused the injuries. Dr. Farrar said that SBS could have caused the


                                               -3-
injuries. He also said it was possible that the older fluid was caused by a rough delivery, but that
the newer fluid was “unlikely” to be from delivery.

        Neurological surgeon Frank Paul Schinco testified that the hemorrhages in RK’s brain
were 36 to 48 hours old. He estimated that the older bleed was at least more than a week old.
He said that the blood clots in RK’s brain, in conjunction with the retinal hemorrhages, “would
indicate a very significant probability and likelihood that the child had been shaken in a typical
manner . . . that is highly diagnostic of that shaken baby syndrome.”

        Radiologist Kristin Constantino interpreted a skeletal survey x-ray of the baby’s entire
body taken on March 1, 2015. RK had a new fracture on the left side of his skull, an old one on
his left forearm, and old ones on multiple ribs. She opined that the skull fracture could
“potentially” have been from the bathtub fall.

        RK ultimately spent nine days in the PICU. Shortly after he was released, defendants
were charged with second-degree child abuse, MCL 750.136b(3). At trial, the prosecution called
the child’s treating doctors as witnesses, including Dr. Sahouri (ophthalmology), Dr. Dawis
(pediatric medicine), Dr. Kirby (emergency medicine), Dr. Dense (chiropractic medicine), Dr.
Barrigar (chiropractic medicine), Dr. Farrar (neuroradiology), Dr. Constantino (radiology), Dr.
Schinco (neurosurgery), and Dr. Fiore (pediatric critical care). They also called the maternal
grandmother. Defendants both testified on their own behalf and police interviews recorded at the
hospital were played for the jury. The defense did not call any expert witnesses. At the
conclusion of the six-day trial, both defendants were found guilty of second-degree child abuse.

        Defendants appealed as of right. On appeal, they both moved this Court to remand for a
Ginther2 hearing, claiming that their attorneys were ineffective for failing to obtain an expert to
dispute the prosecution’s evidence that RK had been shaken. Alternatively, they argued that
their attorneys were ineffective for failing to object to the shaking evidence as irrelevant and
unfairly prejudicial. We consolidated3 the appeals and remanded to the trial court for an
evidentiary hearing.4 These matters now return to this Court.




2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
3
 People v Krukowski, unpublished order of the Court of Appeals, entered May 4, 2017 (Docket
Nos. 334320; 337120).
4
 People v Krukowski, unpublished order of the Court of Appeals, entered May 19, 2017 (Docket
No. 334320); People v Stevens, unpublished order of the Court of Appeals, entered May 19,
2017 (Docket No. 337120).


                                                -4-
                             II. SUFFICIENCY OF THE EVIDENCE

        In supplemental briefs, defendants contend that there was insufficient evidence to support
their convictions because the alleged omission of failing to seek medical attention for RK is not
proscribed in the second degree child abuse statute, MCL 750.136b(3). We agree.5

        We review a challenge to the sufficiency of the evidence de novo. People v Martin, 271
Mich App 280, 340; 721 NW2d 815 (2006). When reviewing such a claim, this Court reviews
the record in a light most favorable to the prosecution to determine whether a rational trier of fact
could find that the essential elements of the crime were proven beyond a reasonable doubt. Id.
This Court also reviews issues of statutory interpretation de novo. People v Williams, 475 Mich
245, 250; 716 NW2d 208 (2006).

        The statute under which defendants were convicted, MCL 750.136b, states, in relevant
part:

               (3) A person is guilty of child abuse in the second degree if any of the
        following apply:

                (a) The person’s omission causes serious physical harm or serious mental
        harm to a child or if the person’s reckless act causes serious physical harm or
        serious mental harm to a child.

                (b) The person knowingly or intentionally commits an act likely to cause
        serious physical or mental harm to a child regardless of whether harm results.

In addition, MCL 750.136b(1)(c) defines “omission” as “a willful failure to provide food,
clothing, or shelter necessary for a child’s welfare or willful abandonment of a child.”

        As previously stated, the prosecutor set forth three theories of second-degree child abuse:
an “abandonment” theory, a “reckless act” theory, and an “intentional act” theory. During final
jury instructions, the trial court also stated that the jurors had three theories to consider in support
of second-degree child abuse. It said that the first theory was an “abandonment” theory, and that
to convict under this theory, one needed to find that defendants “wilfully abandoned” RK and
thereby caused him serious physical harm. It defined “abandon” as “to withdraw one’s support
or one’s help, especially to do so despite a duty, allegiance, or responsibility.” The trial court
identified the second theory as a “reckless act” theory, and stated that to convict under this
theory, one needed to find that the child was seriously harmed because defendants “did some
reckless act, consisting of treating [the child] . . . with inadequate home remedy for an obvious
head injury, rather than seeking professional medical treatment.” The trial court stated that, to
convict under the third theory, one needed to find that defendants “knowingly or intentionally


5
  Defendant have raised additional arguments on appeal, but due to our complete resolution of
these matters on the arguments based on sufficiency of the evidence, we need not address the
additional arguments.


                                                  -5-
did an act likely to cause serious physical harm to” RK, and that the “intentional act alleged
consists of treating [the child] . . . with inadequate home remedy for an obvious head injury,
rather than seeking professional medical treatment.” Defendants contend that the prosecutor’s
theories in this case were all theories of omission, and that such theories under the facts of the
present case do not comport with the wording of MCL 750.136b because of the way that statute
defines the term “omission.”

        People v Murphy, 321 Mich App 355, 357-359, 910 NW2d 374 (2017), provides this
Court with guidance on this issue. In that case, the defendant was convicted of second-degree
child abuse under MCL 750.136b(3)(a) based on the death of her child, which occurred after the
child ingested a toxic amount of morphine. The child’s grandmother had been living in the home
of the defendant and the child, and the grandmother, who died before the child did, had been
prescribed morphine. Id. at 358. The prosecutor “argued that a [morphine] pill had likely fallen
to the floor and that because [the child’s] parents had failed to clean the bedroom, [the child]
found the pill and consumed it.” Id. at 358 n 2. The prosecutor contended that the defendant
committed a reckless act because the home was in a deplorable condition and the defendant
“failed to clean the home to ensure that the morphine pills were removed . . . .” Id. at 358.

        This Court noted that the “omission” portion of MCL 750.136b(3)(a) was inapplicable
because there was “no evidence that [the defendant] willfully failed to provide food, clothing, or
shelter to [the child] or that she willfully abandoned her.” Id. at 360 n 4. This Court stated that
“the only theory on which the jury was instructed” was the theory of “a reckless act causing
serious physical harm . . . .” Id. at 360. The Court concluded that “[s]imply failing to take an
action does not constitute an act” and that “the prosecutor presented no evidence that any
affirmative act taken by [the defendant] led to [the child’s] death.” Id. at 361. The Court stated
that the prosecutor “only directed the jury to [the defendant’s] reckless inaction, i.e., her failure
to clean her house to ensure that morphine pills were not in [the child’s] reach.” Id.
Accordingly, the Court vacated the defendant’s conviction of second-degree child abuse. Id.

        The statutory language encompasses an “act” which is, according to Murphy, id.,
“[s]omething done or performed.” (Quotation marks and citation omitted.). As implied by the
Murphy Court, the “act” alleged must be the causative factor in causing serious harm, MCL
750.136b(3)(a), or in being likely to cause serious harm, MCL 750.136b(3)(b). Here, the
prosecutor identified the use of home remedies, specifically using cold peas as a compress and
giving the child peppermint water, as the affirmative “acts” at issue. The problem, however, is
that there was no allegation that the use of these home remedies is what harmed the child or was
likely to harm the child. Indeed, as a matter of pure common sense, applying a cold compress to
a child’s head or giving a child peppermint water is not likely to lead to seizures and severe
swelling of the brain or otherwise lead to harm. It is overwhelmingly clear that the causative
factor as alleged by the prosecutor was the failure to seek professional medical treatment.6


6
  This is reinforced by the prosecutor’s various arguments at trial. In addition, the felony
information in each case lists the relevant misdeed as “failing to seek medical treatment after
significant trauma which resulted in further or exacerbated physical injuries or deterioration of
the child’s health and/or intentionally causing physical trauma.” And, at the preliminary


                                                -6-
Indeed, the trial court explicitly incorporated this failure to seek professional medical treatment
into its instructions for the prosecutor’s second and third theories. The Murphy Court has clearly
stated that inaction cannot be equated with an “act” for purposes of the child-abuse statute.
Murphy, 321 Mich App at 361. Accordingly, the “reckless act” and “intentional act” theories set
forth by the prosecutor were not encompassed by the language of MCL 750.136b.

         Although defendants do not specifically mention the prosecutor’s “abandonment” theory
in their supplemental briefs, an argument about this theory is encompassed by way of their
argument that “a failure to provide medical treatment is not covered under the definition of
omission in MCL 750.136b(1)(c).”             Indeed, the prosecutor’s allegation regarding the
“abandonment” theory was that defendants abandoned the child by failing to provide him with
adequate medical care. MCL 750.136b(1)(c) defines “omission” as “a willful failure to provide
food, clothing, or shelter necessary for a child’s welfare or willful abandonment of a child.”
MCL 750.136b does not define “abandonment.” However, unambiguous statutory language
must be enforced as written. Williams, 475 Mich at 250. In addition, terms not expressly
defined in a statute are to be interpreted in accordance with their ordinary meaning and the
context in which they are used. People v Lewis, 302 Mich App 338, 342; 839 NW2d 37 (2013).
It is a stretch to equate the failure to seek medical care with the plain and ordinary meaning of
the term “abandonment.” And, “when a term is not defined in a statute, the dictionary definition
of the term may be consulted or examined.” Id. Merriam-Webster’s Collegiate Dictionary (11th
ed.) defines “abandon,” in part, as “to give up with the intent of never again claiming a right or
interest in; to withdraw protection, support, or help from.” The failure to seek a certain type of
medical care is not equivalent to withdrawing protection, help, or support from a child, or giving
a child up with the intent never to claim an interest in the child.

        Moreover, under the doctrine of expressio unius est exclusion alterius, the “express
mention of one thing implies the exclusion of another.” Coalition Protecting Auto No-Fault v
Mich Catastrophic Claims Ass’n (On Remand), 317 Mich App 1, 15 n 6; 894 NW2d 758 (2016)
(quotation marks and citations omitted). The Legislature has defined omission to encompass the
willful failure to provide “food, clothing, or shelter” but does not mention the willful failure to
provide medical care. MCL 750.136b(1)(c). Finally, statutes should be interpreted in order to
give effect to every term. People v Peltola, 489 Mich 174, 181; 803 NW2d 140 (2011). Under
the prosecutor’s overarching theory, “abandonment” of a child would encompass not only the
failure to provide medical care, but also the failure to provide, for example, food, because both
these failures would represent the shirking of parental duties. Yet, this would render the
delineation of “a willful failure to provide food” in MCL 750.136b(1)(c) surplusage, which is to
be avoided. Id.

       Clear statutory language is to be enforced as written, Williams, 475 Mich at 250, and
Murphy is binding under MCR 7.215(J)(1). Under the factual circumstances in this case, and
based on the theories presented, the prosecutor failed to present sufficient evidence under which



examination, the prosecutor argued for a bindover based on an “omission” theory, and the court
authorized the bindover without much explanation regarding its reasoning.


                                                -7-
to convict defendants of second-degree child abuse. Accordingly, defendants cannot be retried
for second-degree child abuse, MCL 750.136b(3) as dictated by double jeopardy principles.
People v Mitchell, 301 Mich App 282, 294; 835 NW2d 615 (2013). See also, Burks v United
States, 437 US 1; 98 S Ct 2141; 57 L Ed 2d 1 (1978) (when an appellate court finds that the
evidence is insufficient to sustain guilt, that court determines that the prosecution has failed to
prove guilt beyond a reasonable doubt and to permit a second trial would negate the purpose of
the Double Jeopardy Clause); Lockhart v Nelson, 488 US 33; 33-34; 109 S Ct 285; 102 L Ed 2d
265 (1988) (A reversal for evidentiary insufficiency “is the functional equivalent of a trial court’s
granting a judgment of acquittal at the close of all the evidence.”).

        Reversed. We vacate defendants’ convictions and sentences, remand, and direct the trial
court to enter judgements of acquittal in both cases. We do not retain jurisdiction.



                                                              /s/ Jonathan Tukel
                                                              /s/ Deborah A. Servitto
                                                              /s/ Michael J. Riordan




                                                -8-
