                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 30, 2014
              Plaintiff-Appellee,

v                                                                  No. 311753
                                                                   Wayne Circuit Court
MATILDA JANE BROWN GARDNER,                                        LC No. 11-005770-FC

              Defendant-Appellant.


Before: GLEICHER, P.J., and SERVITTO and RONAYNE KRAUSE, JJ.

PER CURIAM.

       A jury convicted defendant of first-degree felony murder, MCL 750.316(1)(b), torture,
MCL 750.85, and first-degree child abuse, MCL 750.136b(2),1 in connection with the death of
her four-year-old nephew, RB. The prosecutor presented sufficient admissible evidence to
support defendant’s convictions and did not violate defendant’s constitutional rights by removing
witnesses from its witness list at trial. We affirm.

                                      I. BACKGROUND

        In October 2009, defendant and her husband, Randy Gardner, took custody of her
nephews—then two-year-old RB and his older brother. Defendant and Gardner also had four
biological children. Until RB’s death in May 2011, Gardner subjected the toddler to brutal
beatings and often restrained him with handcuffs. Defendant permitted the physical abuse to
continue and withheld food and water from the child for extended periods. At the age of four,
RB died of starvation and neglect, with physical abuse as a contributing factor. Gardner pleaded
guilty to second-degree murder, torture, and first-degree child abuse in connection with RB’s
death before defendant’s trial.




1
  Defendant was also charged with an alternative count of first-degree premeditated murder,
MCL 750.316(1)(a). The jury found defendant guilty of the lesser offense of second-degree
murder, MCL 750.317, with respect to that charge. At sentencing, the trial court granted the
prosecutor’s motion to vacate that conviction.


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                      II. ADMISSION OF PHOTOGRAPHIC EVIDENCE

         Defendant challenges the trial court’s admission of several “autopsy” photographs at her
trial, claiming that these photographs were overly prejudicial. First and foremost, we note that
defendant mischaracterizes the nature of these photographs; they were taken prior to RB’s
autopsy to document the nature of his injuries and the small size of his body due to
malnourishment. They were not “autopsy” photographs. Second, defendant erroneously
concludes that it was unnecessary to establish the nature and extent of RB’s injuries based on the
incorrect assumption that she was convicted solely on an aiding and abetting theory. Defendant
directly committed first-degree child abuse, and therefore first-degree felony murder, by
withholding food and water from a young child otherwise unable to secure these needs for
himself.

        We further note that defendant has been unable to present the challenged photographs on
appeal, due to no fault of her own. Nevertheless, we are satisfied that the record testimony and
arguments describing the nature and contents of the photographs, and their purpose, is sufficient
to review the admissibility of this evidence. See People v Drake, 64 Mich App 671, 679; 236
NW2d 537 (1975) (holding that a defendant’s inability to secure the challenged transcript for the
appellate court does not automatically entitle the defendant to a new trial); see also People v
Wilson (On Rehearing), 96 Mich App 792, 797; 293 NW2d 710 (1980) (finding that “not every
gap in a record on appeal requires reversal of a conviction”).

       We review for an abuse of discretion a trial court’s decision to admit photographic
evidence. People v Gayheart, 285 Mich App 202, 227; 776 NW2d 330 (2009). A trial court
abuses its discretion when it chooses an outcome that “falls outside of the range of reasonable
and principled outcomes.” People v Duncan, 494 Mich 713, 723; 835 NW2d 399 (2013).

              Photographic evidence is generally admissible as long as it is relevant,
       MRE 401, and not unduly prejudicial, MRE 403. [People v Unger, 278 Mich
       App 210, 257; 749 NW2d 272 (2008).] “‘Photographs may . . . be used to
       corroborate a witness’ testimony,’ and ‘[g]ruesomeness alone need not cause
       exclusion.’” Id., quoting People v Mills, 450 Mich 61, 76; 537 NW2d 909 (1995).
       [Gayheart, 285 Mich App at 227.]

        Evidence is relevant under MRE 401 if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.” MRE 403 provides that “[a]lthough relevant, evidence may
be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice . . . or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Evidence is unfairly prejudicial where there exists “a danger that the jury
would give undue or preemptive weight to marginally probative evidence.” People v Mesik (On
Reconsideration), 285 Mich App 535, 544; 775 NW2d 857 (2009).

        According to the medical examiner’s testimony, the 11 photographs depicted the extreme
state of RB’s malnutrition, as well as various scars, ulcerations, and other injuries at various
stages of healing. We reject defendant’s argument that there was no evidentiary need for the
photographs simply because the medical examiner could describe his findings without the aid of

                                               -2-
the photographs. “The jury is not required to depend solely on the testimony of experts, but is
entitled to view the severity and vastness of the injuries for itself.” Gayheart, 285 Mich App at
227. And although the photographs do not reveal the identity of the assailant, the prosecutor was
still required to prove each element of each charged offense. Mesik, 285 Mich App at 544. The
nature of RB’s various injuries and his condition were relevant in this case to establish that RB
was starved, abused, and tortured. We are satisfied that the probative value of the photographs
was not substantially outweighed by the danger of unfair prejudice. MRE 403.

                           III. SUFFICIENCY OF THE EVIDENCE

        Defendant next argues that the evidence at trial was insufficient to support any of her
convictions.2 When considering a challenge to the sufficiency of the evidence, an appellate court
“reviews the evidence in a light most favorable to the prosecutor to determine whether any trier
of fact could find the essential elements of the crime were proven beyond a reasonable doubt.”
People v Robinson, 475 Mich 1, 5; 715 NW2d 44 (2006). The prosecution need not negate every
theory consistent with innocence, but must prove its own “theory beyond a reasonable doubt in
the face of whatever contradictory evidence the defendant may provide.” People v Kissner, 292
Mich App 526, 534; 808 NW2d 522 (2011) (quotation marks and citation omitted). Questions of
credibility are for the jury to decide. Id.

        As noted, defendant approaches this appeal with the incorrect assumption that she was
convicted only as an aider and abettor to Gardner’s physical abuse. The prosecutor’s theory at
trial was that defendant committed first-degree child abuse by intentionally not feeding the
victim. “A person is guilty of child abuse in the first degree if the person knowingly or
intentionally causes serious physical or serious mental harm to a child.” MCL 750.136b(2). “A
fact-finder may infer a defendant’s intent from all of the facts and circumstances.” Kissner, 292
Mich App at 534. To be convicted of first-degree child abuse, the defendant must have both an
intent to commit the act and an intent to cause serious physical or mental harm to the child or
know that the act would cause serious mental or physical harm. People v Maynor, 470 Mich
289, 295; 683 NW2d 565 (2004); see also People v Portellos, 298 Mich App 431, 444; 827
NW2d 725 (2012) (“A defendant must not only act, but must know that the act will cause serious
physical harm.”). “Serious physical harm” is defined as:

       [A]ny physical injury to a child that seriously impairs the child’s health or
       physical well-being, including, but not limited to, brain damage, a skull or bone
       fracture, subdural hemorrhage or hematoma, dislocation, sprain, internal injury,
       poisoning, burn or scald, or severe cut. [MCL 750.136b(1)(f).]

      The prosecutor’s theory in this case was that defendant knowingly and intentionally
caused serious physical harm to the victim by intentionally failing to provide food and


2
  Defendant challenges the sufficiency of the evidence to support a first-degree premeditated or
second-degree murder charge. Because the jury acquitted defendant of first-degree premeditated
murder and the court vacated her second-degree murder conviction, we need not consider those
challenges.


                                               -3-
nourishment necessary for the victim’s well being. An “[o]mission” is defined in MCL
750.136b(1)(c) as “a willful failure to provide food, clothing, or shelter necessary for a child’s
welfare or willful abandonment of a child.” An “omission” may form the basis for a conviction
of first-degree child abuse. See Portellos, 298 Mich App at 444-445 (finding that a parent’s
failure to summon medical assistance could support a conviction of first-degree child abuse).

        The parties stipulated that defendant received custody of the victim on October 21, 2009.
Medical records indicated that RB weighed 33 pounds on April 24, 2010. According to
defendant’s sister, RB and his brother stayed with her off and on between December 2009 and
May 2010, and she fed the children during this period. Defendant’s sister testified that RB
appeared to be “getting real small” at some point before his death, and that defendant told her
that RB would drink water from the toilet and eat dog food. RB’s brother testified that defendant
fed him and his four cousins but would not give RB the same food. After RB’s death, defendant
told a Child Protective Services (CPS) worker that she had used a false name to contact a
hospital two or three days before RB’s death to report that the child was experiencing flu-like
symptoms. Defendant admitted that she did not follow through with the nurse’s instruction to
feed RB ice chips. The medical examiner testified that RB lost weight between his hospital visit
on April 24, 2010, and his death on May 8, 2011, and that his malnutrition was so severe that it
could not have resulted from a short flu beginning two days before his death. Moreover,
evidence established that the day before RB’s death, defendant went to a beauty parlor and
shopping with her sister. The next day, defendant found RB lying unconscious on the kitchen
floor and finally took the child to a hospital where he died.

       The evidence, viewed in a light most favorable to the prosecution, indicates that
defendant did not feed four-year-old RB while he was in her custody despite having appropriate
food in the home, and that RB resorted to finding dog food or toilet water for nourishment when
he could. The physical consequences of defendant’s failure to feed RB and his severe
malnutrition would have been apparent from his weight loss and small appearance. Defendant
ignored RB’s rapidly deteriorating condition and went on a pampering day instead of securing
medical assistance. The evidence was sufficient to enable a reasonable jury to find beyond a
reasonable doubt that defendant acted intentionally, and knew or intended that serious physical
harm would be caused by this omission. Therefore, the evidence was sufficient to establish first-
degree child abuse.

        Defendant was convicted of torture under an aiding and abetting theory (i.e., that she
aided and abetted Gardner’s torture of young RB). A conviction under an aiding and abetting
theory requires proof of the following elements:

               (1) the crime charged was committed by the defendant or some other
       person; (2) the defendant performed acts or gave encouragement that assisted the
       commission of the crime; and (3) the defendant intended the commission of the
       crime or had knowledge that the principal intended its commission at the time that
       [the defendant] gave aid and encouragement. [Robinson, 475 Mich at 6
       (quotation marks and citations omitted).]

       The crime of torture requires proof that “[a] person who, with intent to cause cruel or
extreme physical or mental pain and suffering, inflicts great bodily injury or severe mental pain

                                               -4-
or suffering upon another person within his or her custody or physical control. . . .” MCL
750.85(1). “Custody or physical control” is defined as “the forcible restriction of a person’s
movements or forcible confinement of the person so as to interfere with that person’s liberty,
without that person’s consent or without lawful authority.” MCL 750.85(2)(b). “Great bodily
injury” includes “internal injury, poisoning, serious burns or scalding, severe cuts, or multiple
puncture wounds.” MCL 750.85(2)(c)(ii). “Severe mental pain or suffering” includes “a mental
injury that results in a substantial alteration of mental functioning that is manifested in a visibly
demonstrable manner caused by or resulting from . . . [t]he intentional infliction or threatened
infliction of great bodily injury.” MCL 750.85(2)(d)(i).

       Defendant does not dispute that Gardner tortured the victim. Rather, defendant argues
that the prosecutor’s aiding and abetting theory was based on the faulty premise that she
approved of Gardner’s actions, with the requisite intent to cause cruel or extreme physical or
mental pain and suffering. Defendant attributes her failure to interfere with or report Gardner’s
criminal conduct to her alleged fear of Gardner.3

        “The phrase ‘aids and abets’ is used to describe any type of assistance given to the
perpetrator of a crime by words or deeds that are intended to encourage, support, or incite the
commission of that crime.” People v Moore, 470 Mich 56, 63; 679 NW2d 41 (2004). “An aider
and abettor’s state of mind may be inferred from all the facts and circumstances.” People v
Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). Relevant factors include the closeness of
the relationship between the defendant and the principal, the defendant’s role in planning or
executing the crime, and whether the defendant flees after the crime. Id. at 757-758.

        Defendant, as RB’s guardian, had the authority to discipline RB. See MCL 750.136b(9)
(child abuse statute does not prohibit reasonable discipline, including the use of reasonable
force). Defendant could also authorize Gardner’s discipline of RB. Id. But viewed in a light
most favorable to the prosecution, the evidence established that defendant did not place any
constraints on or stop Gardner’s repeated use of unreasonable force against the child. Defendant
told her sister that RB’s behavior was “so bad,” and told a CPS worker that she allowed Garnder
to discipline RB and chose not to intervene. RB’s brother testified that defendant was home
when Gardner whipped RB with an extension cord and did not stop Gardner.

        The evidence permitted the jury to reject defendant’s argument that her actions or
omissions were attributed only to fear of Gardner. Although there was evidence of domestic
violence in the home, it did not indicate that Gardner was the sole perpetrator. Both defendant’s
sister and RB’s father testified that defendant physically assaulted Gardner as well. Defendant’s
sister even testified that defendant was the aggressor in the relationship.

        Viewed in a light most favorable to the prosecution, the evidence was sufficient to enable
a jury to find beyond a reasonable doubt that defendant aided and abetted Gardner’s torture by
authorizing him to physically discipline RB, with knowledge that Gardner intended to cause


3
  We note that defendant’s theory that her fear of Gardner excused any criminal conduct was
presented to the jury and the court instructed the jury on the defense of duress.


                                                -5-
cruel or extreme physical or mental pain and suffering, and was actually inflicting great bodily
injury. Moreover, defendant’s own conduct of intentionally failing to provide food and water to
the extent that RB became severely malnourished and eventually died supports the jury’s finding
that defendant shared the same intent to cause cruel or extreme physical or mental pain and
suffering.

       We also reject defendant’s argument that the evidence was insufficient to support her
conviction of first-degree felony murder. The elements of felony murder are:

       (1) the killing of a human being, (2) with the intent to kill, to do great bodily
       harm, or to create a very high risk of death or great bodily harm with knowledge
       that death or great bodily harm was the probable result [i.e., malice], (3) while
       committing, attempting to commit, or assisting in the commission of any of the
       felonies specifically enumerated in [the statute, including armed robbery].
       [Carines, 460 Mich at 758-759 (quotation marks and citation omitted).]

        Both first-degree child abuse and torture are enumerated felonies in MCL 750.316(1)(b).
The jury was permitted to consider both of these offenses as underlying felonies supporting a
felony murder conviction. Further, the evidence that defendant acted with the requisite intent to
support convictions for both first-degree child abuse and torture is also sufficient to establish the
requisite malice to sustain the felony-murder conviction.

                           IV. DEFENDANT’S STANDARD 4 BRIEF

      Defendant raises three additional issues in a pro se supplemental brief filed pursuant to
Supreme Court Administrative Order No. 2004-6, Standard 4.

        Defendant frames her first issue as a challenge to the prosecutor’s elicitation of testimony
regarding objects not introduced into evidence at trial. Because defendant did not object to the
challenged testimony, this issue is unpreserved and defendant has the burden of showing plain
error affecting her substantial rights. Carines, 460 Mich at 763. Defendant contends that the
evidence technicians proffered by the prosecution improperly testified about various items
collected from defendant’s home that were not actually placed into evidence. However, MRE
602 permits a witness to testify about matters within his or her personal knowledge. Because the
collection of the subject items was within the personal knowledge of the testifying witnesses,
there was no plain error. MRE 602. And defendant does not describe how she was prejudiced
by the failure to produce these items in the courtroom.

        Defendant next argues that the prosecution deprived her of defense witnesses by listing
her four children on its witness list, but then declining to call them at trial. The record discloses
that defense counsel affirmatively agreed to waive these witnesses’ presence at trial. After the
prosecutor announced her intent not to call the remaining witnesses, defense counsel stated, “We
have no objection to all of the remaining witnesses being waived.” Thus, any error related to the
prosecutor’s failure to produce the remaining witnesses has been waived and extinguished,
leaving nothing for our review. People v Carter, 462 Mich 206, 215-216; 612 NW2d 144
(2000).



                                                -6-
         Defendant finally claims that the prosecutor falsely told defense counsel that the video
recordings of her children’s and RB’s brother’s forensic interviews were incriminating.
Defendant contends that the prosecutor should have introduced the recordings at trial, or her
counsel should have done so. The record does not factually support defendant’s suggestion that
the prosecution suppressed, lost, or destroyed this evidence. Rather, the record clearly
demonstrates that defense counsel viewed the recorded interviews and opposed their admission
at trial. Accordingly, those interviews must not have been exculpatory as claimed by defendant.
Although the prosecutor originally planned to offer into evidence portions of the children’s
interviews for impeachment purposes or as a recorded recollection under MRE 803(5), the
prosecutor ultimately did not use this evidence at trial. Because defense counsel viewed the
interviews and expressly opposed their presentation at trial, defendant waived any claim of error.
Id. To hold otherwise would allow defendant to harbor error as an appellate parachute. Id. at
214.

       We affirm.



                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Deborah A. Servitto
                                                            /s/ Amy Ronayne Krause




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