            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 13, 2020
               Plaintiff-Appellee,

v                                                                  No. 331602
                                                                   Wayne Circuit Court
KELLI MARIE WORTH-MCBRIDE,                                         LC No. 13-000575-02-FC

               Defendant-Appellant.


                                         ON REMAND

Before: GADOLA, P.J., and METER and FORT HOOD, JJ.

PER CURIAM.

        Defendant was convicted by bench trial of first-degree child abuse, MCL 750.136b(2),
and second-degree murder, MCL 750.317, arising out of the death of her three-month-old son,
Joshua Wilson, Jr. (Junior). Defendant was sentenced to 25 to 40 years’ imprisonment for her
conviction of first-degree child abuse and 15 to 30 years’ imprisonment for her conviction of
second-degree murder. On July 13, 2017, this panel affirmed defendant’s convictions, rejecting
an argument that the evidence was insufficient to sustain them. People v Worth-McBride,
unpublished per curiam opinion of the Court of Appeals, issued July 13, 2017 (Docket No.
331602) (Worth-McBride I), vacated 929 NW2d 285 (Mich, 2019). On June 28, 2019, our
Supreme Court vacated this panel’s opinion and remanded the case for us to consider whether, in
light of the fact that the prosecution proceeded only on a theory that defendant aided and abetted
Junior’s father, Joshua Wilson, Sr. (Wilson), in committing the crimes, defendant’s due-process
right to be informed of the nature of the charges against her was violated when the trial court
convicted defendant as a principal. People v Worth-McBride, 929 NW2d 285 (Mich, 2019)
(Worth-McBride II). We again affirm.

        In analyzing whether defendant’s due-process right was violated, our Supreme Court has
directed us to Cole v Arkansas, 333 US 196, 201; 68 S Ct 514; 92 L Ed 644 (1948). In Cole, the
United States Supreme Court considered whether the petitioners were denied due process
because their convictions were affirmed under a criminal statute that they had not been charged
with violating. The petitioners had originally been tried and convicted under a statutory section


                                               -1-
referred to in Cole as “s 2 of Act 193 of the 1943 Arkansas Legislature.” Id. at 197, 200-201.1
However, on appeal to the Arkansas Supreme Court, the convictions were affirmed as though the
petitioners had been tried for violating another statutory section—“s 1.” Id. at 201.2 The United
States Supreme Court reversed the Arkansas Supreme Court’s decision, reasoning:

                  No principle of procedural due process is more clearly established than
          that notice of the specific charge, and a chance to be heard in a trial of the issues
          raised by that charge, if desired, are among the constitutional rights of every
          accused in a criminal proceeding in all courts, state or federal. If, as the State
          Supreme Court held, petitioners were charged with a violation of s 1, it is doubtful
          both that the information fairly informed them of that charge and that they sought
          to defend themselves against such a charge; it is certain that they were not tried
          for or found guilty of it. It is as much a violation of due process to send an
          accused to prison following conviction of a charge on which he was never tried as
          it would be to convict him upon a charge that was never made. [Id. (citations
          omitted).]

In short, the due-process violation in Cole involved convictions under one statutory section being
upheld on the basis of a violation of another statutory section. That holding is inapplicable in the
present case, where the prosecution theorized that defendant aided and abetted a crime, but
defendant was ultimately convicted as a principal.

       Importantly, in Michigan, aiding and abetting does not constitute a separate offense but is
merely a theory of criminal liability. See People v Perry, 460 Mich 55, 63 n 20; 594 NW2d 477
(1999) (noting that “being an aider and abettor is simply a theory of prosecution, not a separate
substantive offense”). “Michigan has, by statute, abolished all common-law distinctions between




1
    As quoted in Cole, s 2 provided, in relevant part:
          It shall be unlawful for any person acting in concert with one or more other
          persons, to assemble at or near any place where a “labor dispute” exists and by
          force or violence prevent . . . any person from engaging in any lawful vocation, or
          for any person acting . . . in concert with one or more other persons, to promote,
          encourage or aid any such unlawful assemblage. [Cole, 333 US at 198.]
2
    According to Cole, s 1 provided:
          It shall be unlawful for any person by the use of force or violence, or threat of the
          use of force or violence, to prevent or attempt to prevent any person from
          engaging in any lawful vocation within this State. Any person guilty of violating
          this section shall be deemed guilty of a felony, and upon conviction thereof shall
          be punished by confinement in the State Penitentiary for not less than one (1)
          year, nor more than two (2) years. [Cole, 333 US at 199 n 2.]


                                                   -2-
principals and accessories.” People v Mann, 395 Mich 472, 476; 236 NW2d 509 (1975).3 “A
person who aids and abets is guilty as a principal.” Id. at 477.

        Indeed, in a recent unpublished opinion,4 this Court rejected the applicability of Cole in a
situation similar to the present case. In People v McCants, unpublished per curiam opinion of
the Court of Appeals, issued July 17, 2018 (Docket No. 331248), p 15, the defendant argued that
the prosecutor tried the case on a theory that the defendant directly committed the crimes, but
after the close of proofs, moved to include jury instructions on an aiding-and-abetting theory.
The defendant contended that this amounted to a violation of his due-process right to reasonable
notice of the charges against him. Id. In rejecting the defendant’s argument, this Court stated, in
relevant part:

                 Defendant’s reliance on decisions from the United States Supreme Court
         [including Cole] and from Michigan’s Supreme Court to support his position is
         misplaced. The cases defendant relies on involve defendants charged with one
         crime or violation but convicted, or whose convictions were upheld, based on
         another crime or violation, or who were convicted on inadequate statements of the
         charges against them. These cases involved charges for distinct crimes about
         which the defendants were not informed and against which they could not
         properly defend themselves. They are inapplicable here because aiding and
         abetting is not a distinct crime, see People v Greaux, 461 Mich 339, 344-345; 604
         NW2d 327 (2000), but a theory of criminal liability, see People v Robinson, 475
         Mich 1, 15; 715 NW2d 44 (2006). [McCants, unpub op at 16 (citations omitted).]

Notably, our reasoning from McCants conforms to longstanding and well-established Michigan
caselaw.

        In People v Wright, 90 Mich 362, 363-364; 51 NW 517 (1892),5 the defendant was
convicted of keeping a house of ill fame, and on appeal, challenged the trial court’s decision to
instruct the jury on an aiding-and-abetting theory in the absence of an actual charge of aiding and


3
    MCL 767.39 states:

         Every person concerned in the commission of an offense, whether he directly
         commits the act constituting the offense or procures, counsels, aids, or abets in its
         commission may hereafter be prosecuted, indicted, tried and on conviction shall
         be punished as if he had directly committed such offense.


4
 Although unpublished opinions are not binding precedent, MCR 7.215(C)(1), such opinions
may be considered for their persuasive value, People v Green, 260 Mich App 710, 720 n 5; 680
NW2d 477 (2004).
5
  “Michigan’s aiding[-]and[-]abetting statute has been in force and substantively unchanged
since the mid-1800s.” Robinson, 475 Mich at 7-8.


                                                  -3-
abetting. Our Supreme Court rejected the argument, noting that the aiding-and-abetting statute
provided that an aider and abettor “may be indicted, tried, and punished as [a] principal,” and
that the charge was supported by proof that the defendant aided or assisted others in committing
the offense. Id.

        In People v McKeighan, 205 Mich 367, 369-370; 171 NW 500 (1919), the defendant was
convicted of assault and unarmed robbery on a theory that he had induced other persons to
commit the crimes. The defendant argued on appeal that the felony information was required to
allege sufficient facts to inform him of the exact nature of the charges against him, and that his
felony information was defective because it did not inform him of what connection he allegedly
had to the commission of the offenses other than as a direct participant. Id. at 370. Our Supreme
Court held that the aiding-and-abetting “statute ha[d] clearly abolished all distinctions previously
existing between principals and accessories, and in express terms applie[d] to indictments
(including informations).” Id. at 370-371. “The information was clearly sufficient to warrant the
conviction” because, under the statute, a defendant “who aids and abets is now a principal.” Id.
at 371 (quotation marks and citation omitted).

          In Mann, 395 Mich at 474-475, the defendant was convicted of larceny in a building after
walking out of a store with a box containing a tape recorder. The defendant testified at trial that
a friend had asked him to carry the box out of the store. Id. On appeal to our Supreme Court,
the defendant argued “that it was error for the trial court to instruct the jury on aiding and
abetting when neither party had requested such an instruction, that theory had not been advanced
at trial, and there was no opportunity to argue the matter to the jury.” Id. at 475. The defendant
contended that “the trial judge did not inform counsel before closing arguments that such
instruction would be given. Therefore, [the] defendant had no opportunity to rebut that charge,
or to submit instructions on aiding and abetting.” Id. The prosecutor responded that it was the
defendant’s own testimony and defense counsel’s closing argument that justified the aiding-and-
abetting instruction. Id. The defendant replied that the prosecution theory was that the
defendant himself had committed the offense, not that he was an accessory. Id. at 477. In
rejecting the defendant’s argument, our Supreme Court summarized its decisions in Wright and
McKeighan. Id. The Court concluded that, given the defendant’s testimony suggesting that his
friend might have stolen the tape recorder, there was evidence to support the aiding-and-abetting
instruction. Id. at 478.

         In People v Lamson, 44 Mich App 447, 449; 205 NW2d 189 (1973), the defendant
argued that he was denied due process because the felony information did not identify an aiding-
and-abetting theory and the prosecutor failed to raise that theory until after the close of evidence
at trial. This Court quoted the reasoning contained in People v Dockery, 20 Mich App 201, 207;
173 NW2d 726 (1969), which emphasized the abolition of the distinction between principals and
accessories. “The statute makes an aider and abettor into a principal and it is unnecessary to
charge the defendant in any form other than as a principal. Therefore, the fact that the
information failed to charge aiding and abetting is not relevant to the issue raised.” Lamson, 44
Mich App at 450, quoting Dockery, 20 Mich App at 207.

       Finally, in People v Hooper, 50 Mich App 186, 191; 212 NW2d 786 (1973), the
defendant argued that he was denied his due-process right to notice of the nature of the charges
against him because the trial court instructed the jury on aiding and abetting even though the

                                                -4-
defendant was not charged in the felony information as an aider and abettor. This Court rejected
the defendant’s argument, noting that “[i]t is well settled that an aider and abettor may be
indicted, tried, and on conviction punished as a principal and no denial of due process results
from charging an aider and abettor as a principal.” Id. See also People v Clark, 57 Mich App
339, 343-344; 225 NW2d 758 (1975) (rejecting a similar due-process argument and quoting the
analysis in Hooper); Hack v Elo, 38 F Appx 189, 193 (CA 6, 2002) (citing Hooper and noting
that when the petitioner went to trial, he “knew that under Michigan law he would be guilty” of
the same crime if “the jury found that he was either the principal or an individual who aided and
abetted principals in the conduct of the crime”).6

        Similarly, in this case, defendant’s conviction as a principal based upon a theory of aiding
and abetting does not give rise to a due-process violation. Moreover, we note the clear evidence
that defendant was fully informed of the nature of the charges against her, including the fact that
she could be found guilty as either a principal or an aider and abettor. Defendant presented
arguments in her motion to quash and at trial that she was not guilty as either an aider and
abettor or a principal.7 Defendant has not identified any different arguments that she would have
made or any additional evidence that she would have presented if aiding and abetting had not
been identified by the prosecution as a theory of liability, or if the theory had been that she acted
as a principal. In short, defendant was on notice of the charges for which she was on trial, and
she has not established a due-process violation.

       Additionally, we note, consistent with our prior opinion, that there was substantial
evidence to support defendant’s convictions under the aiding-and-abetting theory. Worth-
McBride I, unpub op at 4 n 3. With respect to first-degree child abuse, we noted:

       [T]here was ample record evidence to support the trial court's determination that
       defendant knew that Wilson would cause serious physical harm to Junior. For
       example, Sergeant David Dinsmore of the Westland Police Department testified
       at trial that while he interviewed defendant, she admitted that she had thrown
       Junior down herself, and that she had seen Wilson throw Junior and “bear hug”


6
 Although lower federal court opinions are not binding on this Court, they may be considered
persuasive. People v Jackson, 292 Mich App 583, 595 n 3; 808 NW2d 541 (2011).
7
  In her motion to quash, defendant argued that “[b]ecause there was insufficient evidence
adduced at the preliminary examination of [defendant’s] culpability as either a principle [sic] or
as an aider and abettor, the examining magistrate committed a clear abuse of discretion in
binding defendant over for trial.” At trial, defense counsel noted in his closing argument that the
prosecution theory was aiding and abetting, but defense counsel nonetheless went on in his
closing argument to state, “I don’t believe that the Prosecution has established all the elements of
First[-]Degree Child Abuse especially with regard to this woman’s participation either as an
aider and abettor or as a direct participant.” Therefore, although the prosecution theory was
aiding and abetting, and although the major focus of the parties’ arguments concerned aiding and
abetting, defendant nonetheless made arguments in her motion to quash and at trial disputing the
idea that she acted as a principal.


                                                -5-
       Junior by folding the infant in half, apparently to stop him from breathing so that
       he would not cry. At the time of his death, Junior also had serious injuries in
       various stages of healing, including fractures to his wrist, legs, ribs, and clavicles,
       which were estimated to be about two weeks old. Specifically, Dr. Jeffrey
       Jentzen, M.D., a forensic pathologist with the University of Michigan, conducted
       the autopsy on Junior. According to Dr. Jentzen, the injuries to Junior's tibia were
       consistent with “a twisting or torque injury that occurs in a child.” While
       defendant offers myriad explanations regarding how Junior incurred these injuries
       that were healing at the time of his death, and claims that she was not aware of the
       severity of these injuries until his autopsy was performed, we are required to view
       the record evidence in the light most favorable to the prosecution, resolving any
       conflicts in the evidence in favor of the prosecution. [People v] Kaanan, 278
       Mich App [594,] 619[; 751 NW2d 57 (2008)]. Put simply, the horrific and severe
       nature of the healing fractures were such that the trial court could reasonably infer
       that defendant knew of their existence on her infant's body, particularly where she
       informed the police investigating her son's murder that she personally witnessed
       Wilson's brutal and callous treatment of her child in the days leading up to his
       death. Additionally, the fact that defendant initially lied about not being present
       in the apartment when Junior was murdered, and then admitted that she was, is
       indicative of her consciousness of guilt. See People v. Unger, 278 Mich App 210,
       227; 749 NW2d 272 (2008) (“[The fact-finder] may infer consciousness of guilt
       from evidence of lying or deception.”). On this record, there is ample evidence to
       support the trial court's verdict convicting defendant of first-degree child abuse.
       [Worth-McBride I, unpub op at 2-3 (fourth alteration in original).]

On remand, our Supreme Court has reminded us of People v Burrell, 253 Mich 321, 323; 235
NW 170 (1931), which adopted the idea that “[m]ere presence, even with knowledge that an
offense is about to be committed or is being committed, is not enough to make a person an aider
or abettor . . . nor is mere mental approval, sufficient, nor passive acquiescence or consent.”
(Quotation marks and citation omitted.) We would still find the evidence sufficient, as the trial
court could still have found defendant was beyond merely present when Junior was abused,
particularly given defendant’s admission that she had personally thrown the infant into a
bassinet, combined with the myriad of injuries to Junior’s body at different stages of healing.

        With respect to second-degree murder, we noted that defendant “acted in wanton and
willful disregard of the likelihood that the natural tendency of her behavior was to cause death or
great bodily harm to Junior when she entrusted Junior to Wilson’s care, knowing Wilson’s
history as a violent abuser of her infant son.” Worth-McBride I, unpub op at 3 (quotation marks
and citation omitted).

       [D]efendant admitted that she personally witnessed Wilson physically abuse
       Junior on more than one occasion. Specifically, defendant saw Wilson throw
       Junior and “bear hug” the child by folding him in half on multiple occasions to
       essentially stop him from breathing so he could no longer cry. Defendant
       witnessed some of this behavior the morning of Junior's murder. Additionally,
       Junior's multiple healing fractures, which Dr. Jentzen opined were approximately


                                                -6-
       two weeks old, were so severe that defendant's argument that she was not aware
       of their severity is implausible. [Id. at 3-4.]

As with her child abuse conviction, we noted that “[t]he record evidence amply supported
defendant’s conviction of second-degree murder.” Id. at 4. We would again conclude that the
evidence was sufficient to support a conviction of second-degree murder.

        Additionally, in our prior opinion, we noted defendant’s cursory suggestion that the trial
court rendered an inconsistent verdict by acquitting her of felony murder based upon her lack of
the requisite mens rea, but nonetheless convicting her of second-degree murder. We declined to
address the argument, concluding that defendant had waived it by specifically requesting “the
trial court consider the charge of second-degree murder in deciding the case.” Id. at 4 n 4.
Defendant suggested in a footnote in her brief that the trial court had impermissibly rewarded her
for waiving a jury trial by acquitting her of felony murder. The prosecution then conceded in its
brief that the trial court had issued an inconsistent verdict via a “waiver break.”

        A waiver break occurs when a defendant waives his or her right to a jury trial and is
rewarded by being acquitted of one charge and found guilty of a lesser charge, where the
acquittals are inconsistent with the court’s factual findings. People v Ellis, 468 Mich 25, 27; 658
NW2d 142 (2003). Our Supreme Court has noted that the practice of waiver breaking “violates
the law and a trial judge’s ethical obligations,” and could be a “ground for referral to the Judicial
Tenure Commission.” Id. at 26, 28. “A decision to drop or plea bargain charges is one that lies
with one or both of the parties, not the court.” Id. at 27. However, because “a trial court’s
decision of not guilty, whether proper or not, is constitutionally protected by double jeopardy
principles,” “a trial judge that rewards a defendant for waiving a jury trial by ‘finding’ [her] not
guilty of a charge for which an acquittal is inconsistent with the court’s factual findings cannot
be corrected on appeal.” Id. at 28. Thus, even ignoring defendant’s waiver of this argument, we
are unable to “correct the effects of an improper ‘waiver break’ on appeal.” Id.

         Lastly, we note that, in a supplemental brief filed after this case was remanded, defendant
raises a number of issues outside the scope of the remand and that could have been raised in her
initial appeal. See People v Russell, 297 Mich App 707, 714; 825 NW2d 623 (2012) (noting
that, ordinarily, “[w]hen an appellate court remands a case with specific instructions, it is
improper for a lower court to exceed the scope of the order”). See also VanderWall v Midkiff,
186 Mich App 191, 201-202; 463 NW2d 219 (1990) (“[T]he principles of res judicata require
that a party bring in the initial appeal all issues which were then present and could have and
should have been raised.”). Although we note that the substantive merit of defendant’s
ineffective assistance claim and the suggestion that the trial court changed the basis for its
conviction post-trial can be made out from this opinion, we decline to specifically address those
arguments because they are not properly before us.

        To summarize, defendant’s due-process right to be informed of the nature of the charges
against her was not violated by the trial court’s conviction of defendant as a principal, despite the
prosecution proceeding solely on an aiding-and-abetting theory. First, aiding and abetting is
merely a theory of prosecution, and second, defendant has not identified any different arguments
that she would have made or any additional evidence that she would have presented if the
prosecution had preceded as though defendant had acted as the principal. Further, in finding

                                                -7-
defendant guilty as a principal, the trial court utilized the same evidence that was pertinent to the
aiding-and-abetting theory, including defendant leaving Junior in the care of Wilson after having
seen Wilson’s serial acts of horrific abuse of Junior and despite Junior’s severe injuries and
extensive bruising. Defendant was clearly on notice of the charges for which she was on trial,
and has not established a due-process violation. Additionally, and as we concluded in our
previous opinion, the evidence was sufficient to support both of defendant’s convictions under a
theory of aiding and abetting. Finally, with respect to the verdict—and noting that the evidence
is sufficient to support a conviction of first-degree child abuse—we are unable on appeal to
correct the effects of an improper waiver break.

       Affirmed.



                                                              /s/ /Michael F. Gadola
                                                              /s/ Patrick M. Meter
                                                              /s/ Karen M. Fort Hood




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