                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    December 2, 2014
               Plaintiff-Appellee,                                  9:00 a.m.

v                                                                   No. 314579
                                                                    Ingham Circuit Court
YUMAR ANTONIO BURKS,                                                LC No. 11-000565-FC

               Defendant-Appellant.


Before: WILDER, P.J., and FITZGERALD and MARKEY, JJ.

WILDER, J.

       Defendant appeals as of right his convictions by a jury of felony murder of his six-month-
old son Antonio Burks, MCL 750.316, and first-degree child abuse, MCL 750.136b(2). On the
felony murder conviction, the trial court sentenced defendant to life imprisonment. Defendant
was sentenced to 50 to 180 months in prison on the first-degree child abuse conviction. We find
that while the trial court erred by refusing to instruct the jury regarding second-degree child
abuse, MCL 750.136b(3), the error was harmless. Accordingly, we affirm.

                                                 I

         The evidence at trial demonstrated that defendant had been feeling stress and frustration
because he could not find a job that would provide for his family. Sheretta Lee, who is
defendant’s ex-wife and Antonio’s mother, testified that several weeks before Antonio’s death,
when defendant drove her to work with two of their children, he threatened to drop her and the
children off and then drive off a cliff. Lee was frightened because of his statements and his
erratic driving, and when she got to work, defendant drove away with the children at such a high
rate of speed that the tires on the car left skid marks. Lee called the police, who later confirmed
the children were not harmed. While Lee never saw defendant slap or punch Antonio, when
Antonio was three months old, defendant began giving the baby hickies on his cheeks. Lee also
testified that Antonio cried a lot and that defendant would get frustrated trying to calm the baby
down.

        Lee further testified that, on the morning of March 24, 2011, defendant expressed
frustration with his temporary employment agency, punched several holes in the walls, and told
her “that could have been you.” When Lee thought that defendant had calmed down, she left to
take the couple’s two older children to daycare and to go to work, leaving Antonio in defendant’s
sole care and custody.
                                                -1-
        Travis Parris, defendant’s friend and neighbor, testified that defendant came over to play
video games at around 5:00 p.m. A few hours later, Parris told defendant to go home and check
on Antonio. Parris called defendant several times after he left, but defendant did not answer.
When Lee returned home with the older children around midnight, defendant put one of the
children to bed while the child was still fully clothed with his coat and shoes. Defendant also
instructed Lee not to wake Antonio.

        Lee testified that she went to bed, while Parris testified that defendant again visited his
house. However, Parris said that on this visit, instead of playing video games, defendant just sat
on the couch, which was not normal for him. Lee testified that she woke up at around 3:00 a.m.,
when she heard defendant pacing the room, and again, at around 10:00 a.m., when she got up for
the day. When she touched Antonio, she discovered that he was very cold, and that he had
bruising all over his body that had not been there the previous day. Lee called 911, and relayed
instructions to defendant on how to perform CPR on a baby by using only two fingers.1

        Upon arriving on the scene, the police found defendant performing adult CPR on the
infant. A responding officer pulled defendant off the baby so that he could perform infant CPR,
but the baby was cold and lifeless. Officer Scott Sexton observed injuries on the baby’s body,
but significantly, there was no bruising in the area where defendant was performing CPR. A
firefighter who had responded to the scene testified that, when he removed the baby’s diaper, he
noticed that the diaper was dry and the baby had been freshly powdered. He found this unusual
because the bowels and bladder release upon death. In the aftermath of the police arrival at the
scene, defendant was observed punching holes in the drywall.

        The baby was then taken to the hospital by paramedics. The treating emergency
physician, Dr. Martin Romero, declared the baby dead and opined that he had been dead for
between 4 and 24 hours. Dr. Romero observed multiple bruises and abrasions on the baby’s
face, abdomen, and legs, healing bruises on his arms, a torn frenulum,2 and “Cullen’s sign,” a
purple discoloration of the abdomen that indicates internal bleeding. Dr. Romero also observed
that Antonio’s diaper was clean and testified that stool and urine are expelled at the time of
death.

         The forensic pathologist, Dr. John Bechinski, who performed the autopsy on the baby,
testified that Antonio had died as a result of multiple blunt force trauma. The doctor’s internal
examination revealed two areas of bleeding under the scalp, a full thickness tear of the superior
vena cava, bleeding in the cavity next to the heart, bruises to the surface of the lungs, bleeding
within the lungs, four liver lacerations, two spleen lacerations, bleeding in the abdominal cavity,
a thick hemorrhage around the left testicle, bruising on the diaphragm, thymus, colon, and


1
  A police officer testified at trial that the method for performing CPR on an adult differs from
the method for performing CPR on a child or an infant. Chest compressions for an adult involve
both hands, but only two fingers for a child or an infant. Moreover, to perform mouth-to-mouth
on a child or infant, both the mouth and nose should be covered to create a seal.
2
    Dr. Romero testified that the frenulum is a tag of skin under the upper lip.


                                                   -2-
duodenum, bleeding around the right adrenal gland, and pulpification of that same adrenal gland.
Dr. Bechinski opined that the number, location, and severity of the internal injuries were
inconsistent with improperly performed CPR and were possibly caused by squeezing, punching,
shaking, or being struck against a wall. Dr. Bechinski equated the force required to cause the
injuries to Antonio’s vena cava and next to his heart to the force involved with a high-speed
vehicle collision. Dr. Bechinski testified that the photos of Antonio’s injuries resembled those in
forensic pathology textbooks of battered children.

        Defendant made several conflicting statements to the police. When first interviewed,
defendant only admitted giving Antonio hickies on the cheek and occasionally pinching and
slapping Antonio when he was fussy. In a second interview, defendant stated that he did not slap
Antonio and that he was always gentle with him. Defendant further stated that Antonio had
fallen off of the bed five different times in the past and that was how he had become so bruised.
In a third interview, defendant stated that Antonio must have been injured by his three-year old
sibling who pulled him off the bed and punched him. Defendant later changed his story again
and said that he had fallen asleep next to Antonio and had accidently rolled on top of him. When
he awoke, Antonio was gasping for air. Defendant said he shook Antonio and punched his sides
in an effort to revive him. Defendant also said he put Antonio in the bath to revive him and that
he dropped Antonio onto the side of the tub when he attempted to lift him out. Defendant further
stated that he cleaned the baby and put him to bed, intending to take him an urgent care facility
in the morning.

       At trial, defendant admitted that he had not been completely truthful in his interviews
with the police, but asserted that his third statement to the police had been the most truthful.
Defendant testified that around 10:00 p.m., he lay down on the bed with Antonio to take a nap
and that he rolled over onto Antonio for a roughly a minute. When he awoke, Antonio was
having difficulty breathing. Defendant testified that he performed CPR on Antonio, who
appeared to be alright afterward. Defendant further testified that he then gave Antonio a bath,
and that he stepped out of the bathroom momentarily, at which time Antonio became partially
submerged in the bathtub. Defendant claimed he pulled Antonio out of the water and again
successfully performed CPR. But defendant also admitted that he had struck Antonio while
performing CPR to get the baby to breathe. Defendant testified that Antonio appeared to be
breathing fine and went to sleep. Defendant further testified that he went to bed around 3:00
a.m. When he woke up in the morning, he learned that his son had died. Defendant denied that
he had intended to hurt or to harm Antonio, or that he knew his actions would harm Antonio.

        After the close of the proofs, defense counsel requested that the jury be instructed on the
offense of second-degree child abuse, arguing that the jury could find defendant’s actions had
only been reckless. The trial court denied the request, finding that, according to the pathologist’s
testimony, blunt force trauma caused Antonio’s death, that defendant admitted intentionally
striking the baby, and that therefore, defendant’s act resulting in death was intentional. The trial
court further concluded that, given these findings, there was no evidence that any reckless act by
defendant resulted in serious injury to Antonio, and that, therefore, the jury should not be
instructed on second-degree child abuse. The jury subsequently convicted defendant of felony
murder and first-degree child abuse.



                                                -3-
                                                II

       Defendant first argues that there was insufficient evidence to support his convictions,
arguing that he struck Antonio but he did not intend to cause serious physical or mental harm to
the baby. We disagree.

        “A challenge to the sufficiency of the evidence in a jury trial is reviewed de novo, in the
light most favorable to the prosecution, to determine whether the trier of fact could have found
that the essential elements of the crime were proved beyond a reasonable doubt.” People v
Gaines, ___ Mich App ___; ___ NW2d ___ (2014), slip op at 3. Under MCL 750.136b(2), “[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.”

       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, (3) while committing, attempting to commit, or assisting in the
       commission of any of the felonies specifically enumerated in MCL 750.316(1)(b)
       [including first-degree child abuse]. [People v Gayheart, 285 Mich App 202,
       210; 776 NW2d 330 (2009).]

        Although defendant claims that he only struck the baby when performing CPR and that
he lacked the necessary intent to cause serious physical harm, a reasonable trier of fact could
conclude that defendant knowingly or intentionally caused serious physical harm to Antonio.
The record demonstrated that defendant was under stress, which he had demonstrated by recently
threatening suicide, driving erratically with his children in the car, and expressing frustration
when Antonio would not stop crying. On the morning of March 24, defendant was so angry that
he punched holes in the walls of the family home, and when Lee left for work, Antonio was in
defendant’s sole care and custody. That evening, defendant played videogames at Parris’s home
for several hours without checking on Antonio, and when Lee arrived home around midnight,
defendant instructed her to not wake the baby up. Defendant behaved uncharacteristically
afterward—just sitting on the couch when he returned to Parris’s house and pacing the couple’s
bedroom at 3:00 a.m. Lee found the baby cold and covered with bruises about seven hours later,
but Officer Sexton observed that none of the bruises were in the area where defendant performed
CPR on Antonio. Further, Dr. Bechinski opined that the baby’s injuries were caused by
squeezing, punching, shaking, or being struck against a wall, and that some of the injuries would
have required the force comparable to a high-speed vehicle collision. And, Officer Sexton and a
responding firefighter observed that Antonio’s diaper was clean, not soiled as would be expected
after death, consistent with expert testimony that the baby could have been dead up to 24 hours
before arriving to the hospital.

        From this plethora of evidence, the jury could properly infer that defendant knowingly or
intentionally caused serious harm to Antonio when he was in defendant’s sole care and custody
on March 24. The fact that defendant claimed he merely struck the baby while performing CPR,
and that this testimony conflicts with the other testimony in the case, does not render the
evidence insufficient to convict defendant of felony murder and first-degree child abuse. Rather,
we must resolve all conflicts in the evidence in favor of the prosecution and we will not interfere

                                                -4-
with the jury’s determinations regarding the weight of the evidence or the credibility of
witnesses. People v Stevens, ___ Mich App ___; ___ NW2d ___ (2014), slip op at 4-5.

                                                 III

       Defendant next argues that the trial court committed error requiring reversal when it
refused to instruct the jury on second-degree child abuse. Although we agree that the trial court
erred by refusing to provide the instruction, we conclude that the error does not require reversal.

       We review de novo issues of law arising from jury instructions, but a trial court’s
determination whether an instruction is applicable to the facts of the case is reviewed for an
abuse of discretion. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006). The trial court
abuses its discretion when its decision is outside the range of principled outcomes. People v
Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).

       When issuing jury instructions, a trial court must instruct on all relevant issues, defenses,
and theories if they are supported by the evidence. People v McGhee, 268 Mich App 600, 606;
709 NW2d 595 (2005).

        Under the Code of Criminal Procedure, when a person is charged with an offense that
consists of different degrees, the jury or judge in a trial without a jury may find the defendant
guilty of a degree of that offense inferior to that charged in the indictment or information. MCL
768.32(1); People v Smith, 478 Mich 64, 69; 731 NW2d 411 (2007). Generally, a lesser offense
is necessarily included when the elements of the lesser offense are subsumed within the elements
of the greater offense. People v Wilder, 485 Mich 35, 41; 780 NW2d 265 (2010); People v
Mendoza, 468 Mich 527, 540; 664 NW2d 685 (2003). A requested instruction on a necessarily
included lesser offense should be given if the charged greater offense requires the jury to find a
disputed factual element that is not part of the included lesser offense, and a rational view of the
evidence would support it. People v Cornell, 466 Mich 335, 357; 646 NW2d 127 (2002).3 If the
trial court does not instruct the jury on a lesser included offense, this Court must review the error


3
  We note that many unpublished opinions of this Court cite Cornell as having been overruled in
part by People v Mendoza, 468 Mich 527; 664 NW2d 685 (2003). See, e.g., People v Giles,
unpublished opinion per curiam of the Court of Appeals issued December 17, 2013 (Docket No.
309338), p 6. We read nothing in Mendoza as overruling any part of Cornell. In fact, the
Cornell decision was the cornerstone of the Court’s analysis in Mendoza. Perhaps this citation
confusion arose from a statement in People v Dixon, unpublished opinion per curiam of the
Court of Appeals issued November 23, 2004 (Docket No. 249954), p 2, that Mendoza “overruled
Cornell and [People v] Van Wyck, [402 Mich 266; 262 NW2d 638 (1978),] holding that when a
defendant is charged with murder, an instruction for manslaughter must be given if supported by
the evidence because manslaughter is a necessarily included lesser offense of murder.” While
Mendoza, 468 Mich at 543-544, overruled Van Wyck, it did so by citing and relying on Cornell.
At any rate, our Supreme Court does not cite Cornell as being overruled even in part by
Mendoza. See Wilder, 485 Mich at 41, n 12 & n 14; see also People v Nyx, 479 Mich 112, 114;
734 NW2d 548 (2 007).


                                                -5-
for harmless error. Id. at 361-362, citing People v Mosko, 441 Mich 496, 503; 495 NW2d 534
(1992). To prove that the error is harmful rather than harmless, “a defendant must persuade the
reviewing court that it is more probable than not that the error . . . was outcome determinative.
An error is deemed ‘outcome determinative’ if it undermined the reliability of the verdict.”
People v Rodriguez, 463 Mich 466, 473-474; 620 NW2d 13 (2000) (quotation marks and
citations omitted). “In other words, it is only when there is substantial evidence to support the
requested instruction that an appellate court should reverse the conviction.” Cornell, 466 Mich.
at 365.4 Substantial evidence exists when upon review of the ‘ “entire cause,” ’ we determine
that the failure to provide the instruction resulted in a miscarriage of justice. Id., quoting MCL
769.26.

                                                  A

        Second-degree child abuse can be proved by showing a person acted knowingly and
intentionally, or by showing that the person acted recklessly. We conclude that either theory of
second-degree child abuse is a necessarily included lesser offense of first-degree child abuse, and
that a rational view of the evidence in this case would have supported a jury instruction on
second-degree child abuse.

        MCL 750.136b(2) provides that “[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.”
In People v Maynor, 470 Mich 289, 291; 683 NW2d 565 (2004), our Supreme Court held that to
be convicted of this offense the prosecution must prove and the jury must find “not only that
[the] defendant intended to commit the act, but also that [the] defendant intended to cause serious
physical harm or knew that serious physical harm would be caused by [his or] her act.”
Although the jury need not be instructed regarding “specific intent,” it must be “instructed that it
must find that defendant either knowingly or intentionally caused the harm.” Id. at 296.

        MCL 750.136b(3) provides that a person is guilty of second-degree child abuse when any
of the following apply:




4
  In People v Heft, 299 Mich App 69, 73; 829 NW2d 266 (2012), this Court held that “[i]f the
trial court [errs by failing to] instruct the jury on a lesser included offense, the error requires
reversal if the evidence at trial clearly supported the instruction.” (Emphasis added.) Heft
follows People v Silver, 466 Mich 386, 388 n 2; 646 NW2d 150 (2001) (opinion by TAYLOR,
J.), for this proposition. The Silver/Heft standard differs, however, from the standard articulated
in Cornell, in that Cornell provides that reversal is warranted, not when there was clearly
evidence in support of the instruction, but only when there is substantial evidence to support the
instruction. Silver is a plurality opinion, and as such, it did not overrule or modify the rule of law
set forth in Cornell. Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich, 492 Mich 503,
535; 821 NW2d 117 (2012) (holding that a plurality opinion is not authoritative beyond the
immediate parties). Thus, because Cornell continues to be good and binding law, we decline to
follow either Silver or Heft.


                                                 -6-
               (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.[5]

        The element distinguishing first-degree child abuse from second-degree child abuse in
MCL 750.136b(3)(b) is harm. A person who knowingly or intentionally causes serious physical
or serious mental harm to a child is guilty of first-degree child abuse whereas a person can be
convicted of second-degree child abuse for an intentional act likely to cause serious harm,
regardless of actual harm. MCL 750.136b(3)(b). In other words, this alternative version of
second-degree child abuse is completely subsumed in first-degree child abuse.

        In addition, the element distinguishing first-degree child abuse from second-degree child
abuse resulting from a reckless act in MCL 750.136b(3)(a) is the offender’s state of mind.
Specifically, as the Maynor Court held, to be convicted of first-degree child abuse, the defendant
must not only cause “serious physical or serious mental harm to a child” but must also either
have acted intending to cause serious harm or knowing that his actions would cause serious
harm. Maynor, 470 Mich at 291, 296. Absent proof of this necessary element of intent or
knowledge, a person is guilty of second-degree child abuse where his or her reckless act causes
serious physical harm or serious mental harm to a child. MCL 750.136b(3)(a).

       Consequently, the variants of second-degree child abuse in MCL 750.136b(3)(b)
(involving an intentional act which is likely to cause serious harm) and MCL 750.136b(3)(a)
(involving a reckless act) are necessarily included offenses of first-degree child abuse. Wilder,
485 Mich at 41; Mendoza, 468 Mich at 540.

                                                     B

        As we noted earlier, the trial court reasoned when it declined to grant defendant’s request
to instruct the jury regarding second-degree child abuse that it was undisputed that defendant
acted intentionally and that defendant’s intentional act resulted in Antonio’s death. But
defendant’s statements to the police and his testimony at trial that the baby was fine after
defendant rolled over him while they were sleeping, and after defendant had momentarily left the
baby alone in the bath, were evidence that, if believed, could have supported a jury verdict
finding defendant guilty of second-degree child abuse under MCL 750.136b(3)(b). Likewise,
defendant’s testimony that he struck Antonio while performing CPR to try to get him to breathe,
if believed by the jury, could have supported a jury verdict finding defendant guilty of second-


5
 We list this form of second-degree child abuse only for completeness. Neither party asserts it
applies to the facts of this case.


                                               -7-
degree child abuse under MCL 750.136b(3)(a). Thus, the trial court erred by not instructing the
jury on second-degree child abuse as requested by defendant.

                                                 C

        Despite the trial court’s error, however, reversal is not warranted. Defendant has not
sustained his burden of demonstrating that, properly instructed, it was more probable than not
that the jury would have convicted him of second-degree child abuse under MCL 750.136b(3)(b)
rather than first-degree child abuse. None of defendant’s inconsistent depictions of his care of
Antonio before his death explain the injuries Antonio sustained. In particular, Dr. Bechinski
opined Antonio’s injuries were caused by squeezing, punching, shaking, or being struck against a
wall, and that some of the injuries would have required the force comparable to a high-speed
vehicle collision. In addition, contrary to defendant’s testimony, the baby was not fine after
being in defendant’s care. Antonio’s injuries after being in defendant’s care were extensive, as
he was covered with bruises and abrasions and had internal injuries described as “textbook” for
battered children.

       Similarly, defendant has not sustained his burden of demonstrating that it was more
probable than not that the jury would have convicted him of second-degree child abuse under
MCL 750.136b(3)(a) rather than first-degree child abuse. Despite defendant’s testimony that he
struck Antonio while performing CPR merely to try to get him to breathe, the evidence
demonstrated the baby’s injuries were inconsistent with improper CPR. Further, the jury was
unlikely to believe defendant’s inconsistent explanations for the baby’s injuries in light of
defendant’s history of violence, the anger and violence he exhibited on the morning before he
was entrusted to care for Antonio, and evidence that defendant grew frustrated when attempting
to calm the baby who cried often.

        A review of the entire cause does not show that defendant merely committed an act likely
to cause serious harm, regardless of actual harm, or that defendant acted recklessly, not
knowingly, in causing injury Antonio. As such, the trial court’s failure to instruct the jury on the
necessarily included lesser offense of second-degree child abuse did not undermine the reliability
of the verdict, and that failure was harmless.

                                                      IV

       For all of the foregoing reasons, we affirm.

                                                             /s/ Kurtis T. Wilder
                                                             /s/ E. Thomas Fitzgerald




                                                -8-
