                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   FOR PUBLICATION
                                                                   September 19, 2017
              Plaintiff-Appellee,                                  9:05 a.m.

v                                                                  No. 331620
                                                                   Macomb Circuit Court
KIMBERLY ANITRA MURPHY,                                            LC No. 2015-000548-FH

              Defendant-Appellant.


Before: GLEICHER, P.J., and M. J. KELLY and SHAPIRO, JJ.

M. J. KELLY, J.

        Defendant, Kimberly Murphy, was convicted following a jury trial of second-degree
child abuse, MCL 750.136b(3). Murphy was sentenced to 36 to 120 months’ imprisonment, with
76 days of credit for jail time served. Because the jury verdict is not supported by sufficient
evidence, we vacate Murphy’s conviction and sentence.

                                       I. BASIC FACTS

       This case arises from the death of Murphy’s 11-month-old daughter, Trinity Murphy.1
The prosecutor presented evidence showing that Trinity died after ingesting a toxic quantity of
morphine.2 The prosecutor’s theory was that Trinity died because of her parents’ “reckless acts,”


1
  Trinity’s father, Harold Murphy, was also charged in connection with her death. He was tried
jointly with Murphy, convicted of second-degree child abuse, and sentenced. He has not
appealed.
2
  It is not clear where Trinity found the morphine pill. However, there was testimony that her
grandmother, who had been living in the home, had been prescribed morphine for pain
management. The grandmother had colon cancer and had passed away about a month before
Trinity’s death. Murphy admitted to a police detective that a pill could have possibly fallen on
the floor in the grandmother’s bedroom. The police also located a prescription pill bottle
containing morphine pills in a closet in the grandmother’s former bedroom, but they appeared to
be out of reach of an 11-month-old child. Thus, although speculative, the prosecutor argued that
a pill had likely fallen to the floor and because Trinity’s parents failed to clean the bedroom
Trinity was able to find and consume it.


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which she contended consisted of “their inaction” and their inability to protect their child and
provide a safe home environment. In support of her theory, the prosecutor presented substantial
evidence showing that the home was in a deplorable and filthy condition, that there were
prescription morphine pills in the home, and that Trinity’s parents had failed to clean the home to
ensure that the morphine pills were removed after Trinity’s grandmother (who was prescribed
the medication and had been living in the home) passed away. The defense theory was that no
reckless act taken by Murphy caused Trinity’s death.

                            II. SUFFICIENCY OF THE EVIDENCE

                                  A. STANDARD OF REVIEW

        Murphy argues that there was insufficient evidence to convict her of second-degree child
abuse. We review de novo challenges to the sufficiency of the evidence. People v Ericksen, 288
Mich App 192, 195; 793 NW2d 120 (2010). When reviewing a challenge to the sufficiency of
the evidence, “[a]ll conflicts in the evidence must be resolved in favor of the prosecution, and
circumstantial evidence and all reasonable inferences drawn therefrom can constitute satisfactory
proof of the crime.” People v Solloway, 316 Mich App 174, 180-181; 891 NW2d 255 (2016)
(citations omitted). “ ‘It is for the trier of fact, not the appellate court, to determine what
inferences may be fairly drawn from the evidence and to determine the weight to be accorded
those inferences.’ ” People v Henry, 315 Mich App 130, 135; 889 NW2d 1 (2016), quoting
People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002).

                                          B. ANALYSIS

       Under MCL 750.136b(3), a person is guilty of second-degree child abuse under three
circumstances:

               (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.

               (c) The person knowingly or intentionally commits an act that is cruel to a
       child regardless of whether harm results.

Only subsection (a) is applicable in this case. Under subsection (a), a person can be convicted of
second-degree child abuse if his or her “omission causes serious physical harm or serious mental
harm to a child” or if his or her “reckless act causes serious physical harm or serious mental
harm to a child.” MCL 750.136b(3)(a).3 The prosecutor proceeded under a theory that Murphy


3
  Person is defined as “a child’s parent or guardian or any other person who cares for, has
custody of, or has authority over a child regardless of the length of time that a child is cared for,
in the custody of, or subject to the authority of that person.” MCL 750.136b(1)(d). There is no


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had committed a reckless act causing serious physical harm to Trinity, not that her omission
caused serious physical harm to Trinity, and that was the only theory that the jury was instructed
on.4 To establish second-degree child abuse based on a reckless act, the prosecution must prove
that a defendant (1) was a parent or a guardian of the child or had care or authority over the
child; (2) that he or she committed a reckless act, (3) that as a result, the child suffered serious
physical harm; and (4) that the child was under 18 years old at the time. See M Crim JI 17.20.
Generally, a determination of whether an act is reckless is a jury question. See People v
Edwards, 206 Mich App 694, 696-697; 522 NW2d 727 (1994).

       The question in this case, however, is not whether Murphy was “reckless.”5 Instead, it is
whether she committed a “reckless act.” The statute does not define what constitutes an “act”
for purposes of MCL 750.136b(3)(a). Black’s Law Dictionary (10th ed) defines “act” as “1.
Something done or performed, esp. voluntarily; a deed” or “2. The process of doing or
performing; an occurrence that results from a person’s will being exerted on the external world.”
Thus, in order to constitute a “reckless act” under the statute, the defendant must do something
and do it recklessly. Simply failing to take an action does not constitute an act. The prosecutor
presented no evidence that any affirmative act taken by Murphy led to Trinity’s death. Instead,
she only directed the jury to Murphy’s reckless inaction, i.e., her failure to clean her house to
ensure that morphine pills were not in reach of Trinity.




dispute in this case that Murphy qualifies as a “person” under the statute. Nor is there any
dispute that she suffered serious physical harm.
4
  We note that under the facts presented to the jury, Murphy could not have been convicted of
second-degree child abuse on an omission theory because the statute 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(1)(c). Here, there is no evidence that Murphy
willfully failed to provide food, clothing, or shelter to Trinity or that she willfully abandoned her.
5
  The concurrence takes issue with the definition of “reckless” set forth in People v Gregg, 206
Mich App 208; 520 NW2d 690 (1994) and the definition of “reckless” adopted by the trial court
in this case. We also have serious concerns about the loose definition in Gregg and the
definition adopted by the trial court. However, given that the issue is not outcome determinative,
we decline to address it now, especially in the absence of briefing on the issue.


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        Because there is no evidence in the record of a reckless act taken by Murphy that caused
Trinity to suffer serious physical abuse, we vacate her conviction and sentence for second-degree
child abuse.6

                                                            /s/ Michael J. Kelly
                                                            /s/ Douglas B. Shapiro




6
   Given our resolution of this issue we need not address Murphy’s argument that she was
completely deprived of the assistance of a lawyer during a portion of the trial or that her jail-
credit was improperly calculated. Nevertheless, we are compelled to briefly discuss the
ineffective assistance claim. Here, it is undisputed that for approximately 27-minutes during the
trial, Murphy’s lawyer was completely absent while her co-defendant’s lawyer cross-examined a
police detective and while the prosecutor conducted a re-direct examination of the detective.
The questions asked during Murphy’s lawyer’s absence included questions pertaining to Murphy
that were arguably inculpatory. Although the lawyer’s absence likely did not amount to a
complete denial of counsel so as to constitute a structural error under United States v Cronic, 466
US 648, 659-662; 104 S Ct 2039; 80 L Ed 2d 657 (1984), we find the court’s willingness to
proceed without Murphy’s lawyer disturbing. A criminal defendant should not be punished for
his or her lawyer’s failure to timely appear for court proceedings. While the absence was
undoubtedly inconvenient for the court, the jury, opposing lawyers, and the witnesses, the
proposition that the presence of a lawyer in the courtroom is necessary for a party’s proper
defense is so fundamental that it hardly requires a citation to authority and it should not have
been so lightly ignored by the trial court.


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