                            STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     October 23, 2014
               Plaintiff-Appellee,

v                                                                    No. 313075
                                                                     Kent Circuit Court
ANDREW PEDRO VALDEZ,                                                 LC No. 11-010829-FH

               Defendant-Appellant.


Before: FITZGERALD, P.J., and SAWYER and SHAPIRO, JJ.

SHAPIRO, J. (dissenting).

        I agree with the majority that there was sufficient evidence from which the jury could
convict defendant of second-degree child abuse, MCL 750.136b(3)(a), on the basis of reckless
behavior resulting in serious harm. However, I do not agree with the majority that there was
sufficient evidence that defendant acted with the intent to seriously injure the child as is required
for a first-degree child abuse conviction, MCL 750.136b(2). Accordingly, I would vacate
defendant’s conviction for first-degree child abuse and enter a judgment of conviction of second-
degree child abuse.

         There were several individuals who were alone with the child during the relevant days
and who, therefore, could have inflicted some or even all of the child’s injuries. No witnesses
testified that they saw defendant mishandling or hurting the child. During the course of a
several-hour police interrogation, defendant was repeatedly asked if he did anything that could
have caused any of the child’s injuries. He eventually stated that on the day before the child was
taken to the hospital, he yanked on the child’s arm and leg while trying to remove him from a car
seat and ultimately grabbed him around the torso to get him out. He stated that, at that time, he
did not think he had injured the child, but agreed he had been rough during this incident and that,
at the time, he was feeling frustrated with the child’s mother. The officers indicated their
satisfaction that the actions defendant described were the likely cause of the child’s injuries. It
was at that point that defendant said that he was the “one that did it.” Defendant never stated that
he intended to harm the child, and certainly not that he intended to cause serious harm.

       There was no evidence that defendant ever expressed a wish to harm the child or that he
had ever been seen harming the child on some other occasion. The prosecution introduced
evidence that defendant had an argument with the child’s mother on the same date and that he
had ripped her glasses from her face during the argument. The prosecution also introduced the



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testimony of a hospital pediatrician who specializes in child abuse and examined the child. She
testified that it was unlikely that merely trying to pull a child from a car seat when a strap was
still on the child’s arm or leg would cause this degree of injury, but agreed that it was possible.
She did not testify that the injuries had to have been intentionally caused. Accordingly, the
prosecution presented insufficient evidence to allow a reasonable jury to conclude beyond a
reasonable doubt that defendant committed first-degree child abuse.

        The defendant also raises an issue based on MRE 404(b). I believe that allowing
evidence of defendant’s altercation with the child’s mother in the time frame at issue was not
error because it went to defendant’s state of mind. However, it is very troubling that the
prosecution’s closing argument suggested that there was evidence that defendant poisoned his
girlfriend’s cat and that he had disciplined his girlfriend’s older child by twisting her fingers. A
review of the record reveals that there was never any such testimony. Rather, a police officer
accused defendant of these actions during the videotaped interrogation and defendant denied
them. Those accusations should not have been played for the jury nor described in the
prosecutor’s closing argument. However, for purposes of a second-degree child abuse
conviction, I would find this error harmless. See MCL 769.26.

        I also disagree with the majority as to the scoring of offense variable (OV) 3, MCL
777.33. There was neither testimony nor medical records that described the child’s injuries as
life-threatening and the child was never placed in an intensive care unit. The sole “evidence”
that the injuries were life-threatening was contained in a sentencing letter written by the child’s
mother in which she stated that a “hospital staffer” told her this. I do not agree that a hearsay
report of a statement by an unidentified person at the hospital, who may not even have been a
medical professional, is sufficient to amount to the preponderance of evidence necessary to
support the scoring of OV 3. See People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).

      I would vacate defendant’s first-degree child abuse conviction and remand for entry of a
judgment of conviction for second-degree child abuse and sentencing on that conviction.

       Accordingly, I respectfully dissent.



                                                             /s/ Douglas B. Shapiro




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