                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0490n.06

                                          No. 16-1441
                                                                                       FILED
                                                                                 Aug 23, 2017
                                                                             DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

JENNIFER GALVAN,                                        )
                                                        )
       Petitioner-Appellant,                            )
                                                        )
v.                                                      )       ON APPEAL FROM THE
                                                        )       UNITED STATES DISTRICT
ANTHONY STEWART, Warden,                                )       COURT FOR THE EASTERN
                                                        )       DISTRICT OF MICHIGAN
       Respondent-Appellee.                             )
                                                        )
                                                        )

BEFORE:        SUHRHEINRICH, GILMAN, and McKEAGUE, Circuit Judges.

       SUHRHEINRICH, Circuit Judge.

       Petitioner Jennifer Galvan appeals the district court’s denial of her § 2254 habeas

petition, asserting that the Michigan Court of Appeals unreasonably applied Jackson v. Virginia,

443 U.S. 307 (1979), in holding that there was sufficient evidence in support of her Michigan

first-degree felony murder conviction. We affirm.

                                                I.

       Petitioner and Joe Galvan (Petitioner’s husband) were both charged with first-degree

felony murder, Mich. Comp. Laws § 750.316(1)(b), based on the predicate felony of first-degree

child abuse, Mich. Comp. Laws § 750.136b(2), or torture, Mich. Comp. Laws § 750.85, which

resulted in the death of Joe’s biological daughter, and Petitioner’s step-daughter, Prhaze Galvan.
No. 16-1441
Galvan v. Stewart

At a joint trial, a jury found both Petitioner and Joe guilty.1 Both Petitioner and Joe appealed,

challenging, among other things, the sufficiency of the evidence sustaining their convictions.

We repeat verbatim the relevant facts as found by that court, which we presume correct on

habeas review. See 28 U.S.C. § 2254(e)(1).

        Prhaze Galvan died on January 15, 2010. The medical examiner, Daniel Spitz,
        M.D., concluded that the death was a homicide and that she died of “multiple
        blunt force head injuries.” More specifically, Dr. Spitz concluded that she died of
        “impact involving the right side of the head,” which resulted in “injury to the
        brain, bleeding over the surface of the brain, and then the reaction of the brain to
        that bleeding which is brain swelling.” Dr. Spitz noted that Prhaze had injuries
        and bruising all over her body in various stages of healing. The injuries included
        pattern injuries, several of which were caused by “a white plastic spatula type
        spoon with a fairly long handle.” Dr. Spitz estimated that there were 20 or
        more injuries to her head and neck. Defendants initially reported that Prhaze had
        fallen in the bathroom and hit her head. However, Dr. Spitz and a pediatric expert
        both concluded that the bathtub injury story “didn’t fit” and could not account for
        the type of trauma that existed.

        Other evidence indicated that the abuse had been unrelenting. Defendant Jennifer
        Galvan’s sister, Kathleen LaFave, had on one occasion seen Prhaze with two
        black eyes, on another with one black eye, and on still another saw her with a
        bruise that covered her whole butt cheek. On another occasion she discovered
        Prhaze in the shower in her clothes; defendant Jennifer Galvan explained that she
        had wet her pants. Another sister witnessed a scabbed chin with a mark by her
        eye, a bruise on her lower back and blackened eyes. John Mugnano, a longtime
        friend of defendant Jennifer Galvan who sometimes watched Prhaze, said that
        “[a]nytime that I ever had her her left eye was black or her right eye was black.”
        Further, he once observed Prhaze standing with her nose to the wall for 30 to 40
        minutes. Mugnano testified that defendant Jennifer Galvan dropped Prhaze off at
        his home and asked for masking tape. After Jennifer left his home, he called out
        to Prhaze, but she did not answer. He found Prhaze with her mouth, arms, and
        knees taped together. He later made an anonymous report to Child Protective
        Services because he did not see the couple’s treatment of Prhaze improving.

        Defendant Jennifer Galvan’s mother twice saw Prhaze with black eyes; Jennifer
        explained that on one occasion she fell in the tub. She also noted a bruise on
        Prhaze’s hip and one on her butt. A babysitter, noted “[b]lack eyes, like horrible
        bruises like on her head,” including “a tennis ball swelling out of her head,” and
        bruising “[o]n her butt. Bruises everywhere,” including her arms, legs, thighs and
1
 Michigan has abolished the distinction between being the principal offender versus aiding the abetting the principle
offender. Mich. Comp. Laws § 767.39. Thus, neither Petitioner nor Joe were charged or convicted specifically as
principals or as aiders and abettors.

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No. 16-1441
Galvan v. Stewart

       back. On one occasion, Prhaze explained the presence of a bruise by saying she
       had been spanked with a spoon when she tried to get out of a cold shower. When
       family members questioned defendant Jennifer Galvan about the condition of the
       child, she claimed that the child was clumsy and received bruises from playing
       with the family puppy. Other family members never saw Prhaze after they
       complained about the child’s condition.

       There was also evidence that Prhaze was not being fed. She weighed 32 pounds
       14 months before her death and 32 pounds at the time of death. Indeed, family
       members testified that Prhaze frequently woke up at night and would search the
       home, even the garbage can for food. As a result, defendant Jennifer Galvan
       would withhold meals from the child as a punishment. The couple would force
       their children to face a wall as a form of punishment. Witnesses testified that
       Prhaze was consistently on punishment and for extended periods of time. There
       was also testimony that defendant Jennifer Galvan’s biological children were not
       dressed or treated the same as Prhaze. Also, witnesses observed Prhaze transform
       during the course of the ongoing abuse from a happy child to a child who was
       withdrawn, non-interactive, not playful, and “emotionless.”

       Defendant Jennifer Galvan was a licensed practical nurse. Her co-workers
       testified that Jennifer hated Prhaze, referred to the child as the devil, blamed
       Prhaze for the death of the couple’s infant son, and claimed that the child was
       ruining her marriage. Defendant Jennifer Galvan testified in her own defense and
       denied the claims raised by family, friends, and coworkers. She asserted that she
       loved Prhaze and claimed that the witnesses were mistaken or misconstrued her
       statements. She denied ever calling Prhaze the devil, but rather mentioned that the
       child would dress as the devil for Halloween. Additionally, she denied
       withholding meals from the child as a form of punishment or that the duration of
       time standing at the wall was ever excessive. She also denied ever tying or
       restraining the child. However, when confronted with a text that she sent to
       defendant Joe Galvan wherein she purportedly referred to Prhaze as an expletive
       brat who could walk while tied up, she could not recall what the text meant.
       Rather, defendant Jennifer Galvan questioned the conduct of babysitters and
       family members, claiming that one family member left Prhaze on the porch at
       night. Defendant Joe Galvan did not testify, but his history of abuse with Prhaze's
       half-brother and others was presented during trial, and his admission to hitting
       Prhaze with a belt to defendant Jennifer Galvan’s co-worker was admitted at trial.

People v. Galvan, Nos. 299814, 299822, 2013 WL 5338520, at *1-2 (Mich. Ct. App. Sept. 24,

2013) (per curiam).

       Like the district court, we also take particular note that first responders testified that

Petitioner showed little to no concern for Prhaze’s condition upon their arrival; and that, when


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No. 16-1441
Galvan v. Stewart

initially questioned on the scene by a detective, Petitioner’s first instincts were to ask whether

she needed an attorney, and to manufacture defenses for Prhaze’s injuries.

        Furthermore, we highlight the fact that Petitioner’s mother, sisters, and friend testified

that, when they first met Prhaze, she was a normal, happy child, and that Petitioner treated

Prhaze lovingly, just like her other children.2 They all stated that it was only after the death of

Petitioner and Joe’s son, Joe Jr., that Petitioner and Joe began to treat Prhaze differently. It was

then that Petitioner told them that she didn’t want to have Prhaze anymore; that she couldn’t

stand to look at Prhaze; that Prhaze was a devil child; that she hated Prhaze; that she wished

Prhaze had died instead of Joe Jr.; and that she blamed Prhaze for Joe Jr.’s death.

        Lastly, we summarize Petitioner’s version of events on January 15, 2010. Petitioner

testified that she arrived home from her night shift as a licensed practical nurse around 8:15 A.M.

After doing a few household chores, she went into the master bedroom, around 9:15 or 9:30

A.M., and found Joe there in bed, and Prhaze standing with her nose against the wall—a standard

punishment for Prhaze. Petitioner then went to sleep. Petitioner woke at 10:30 A.M., and went

to pick up her daughter C.G. from kindergarten around 11:15 A.M. Before she left, Joe told

Petitioner that he was going to make Prhaze some food and put her down for a nap. Petitioner

and C.G. arrived back home at 12:15 or 12:20 P.M. Petitioner and C.G. then watched TV in the

living room next to the master bedroom and dozed off until 2:30 P.M. Petitioner claimed that

she didn’t see Prhaze during that two-hour stretch. After she got up, Petitioner and C.G. put their

coats on and Petitioner opened the door to her bedroom and told Joe that she was going to go

pick up her other children, B.G. and A.G. Petitioner said that she knew Prhaze had wet herself,

that Joe was going to make her take a shower, and that Petitioner could hear the shower running.
2
  Petitioner had three of her own children from a previous relationship as well: A.G., B.G., and C.G. These names
are redacted pursuant to Fed. R. Civ. P. 12. Prhaze’s is not, however, because she is deceased, and her name was
used in state court proceedings and the district court’s opinion.

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No. 16-1441
Galvan v. Stewart

Petitioner testified that when she got to the car, she heard Joe scream and she ran back inside to

find Prhaze on the floor of the master bathroom. Joe then carried Prhaze into the bedroom, and

Prhaze puked onto Petitioner. Petitioner claimed she then performed CPR on Prhaze until the

paramedics arrived, at around 2:54 P.M.

        The Michigan Court of Appeals affirmed both convictions. In reviewing whether there

was sufficient evidence (i.e., probable cause) to bind Petitioner over on the charge of open

murder (which was later dropped), the court unanimously found that:

        Dr. Spitz’s testimony was competent to establish that someone abused this child
        causing her death. Moreover, there was evidence giving rise to a reasonable
        suspicion that defendant Jennifer Galvan encouraged the fatal blow. Accepting for
        purposes of discussion the version of events that defendants gave to police,
        Prhaze was injured when she was told to get in the shower after wetting her pants,
        and defendant Jennifer Galvan was present at this point. There was evidence that
        Prhaze was punished with cold showers, while clothed, for wetting her pants.
        Furthermore, defendant Joe Galvan had previously beat her with a belt resulting
        in welts on her bottom, and the child had injuries in various stages of healing
        indicative of acute and chronic child abuse. There was testimony that defendant
        Jennifer Galvan hated Prhaze, withheld meals from the child, forced the child to
        put her nose against the wall for long periods, forced the child to take cold
        showers, and bound the child’s hands, knees, and mouth with masking tape. There
        was also evidence that someone had spanked her with a spoon for trying to get out
        of a cold shower, and that she was repeatedly seen with bruising, including many
        black eyes. This evidence, coupled with defendant Jennifer Galvan’s inferred
        presence in the home at the time the fatal injury was sustained, was sufficient to
        create an inference that she was complicit with respect to the “discipline” that led
        to the fatal injury. . . .

        Presuming defendant Joe Galvan inflicted the fatal injuries, defendant Jennifer
        Galvan’s history of abuse and/or encouragement and tolerance of abuse, coupled
        with knowledge that defendant Joe Galvan was going to “discipline” the child for
        wetting her pants in a manner consistent with the past, gave rise to an inference
        that she had knowledge he intended to abuse or torture Prhaze. A natural and
        probable consequence of the abuse and torture was that defendant Joe Galvan
        might escalate the assault into a murder. Thus, there was sufficient evidence for
        the bindover.

Id. at *4-5.



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            On the issue of whether there was sufficient evidence to support Petitioner’s conviction,

the court split. The majority, affirming the verdict, found that:

            Consistent with the preliminary examination testimony, Dr. Spitz testified that the
            injury was probably within minutes to an hour but could have occurred up to eight
            hours earlier and that Prhaze would have been symptomatic during this time. The
            first responder noted that her eyes were “open, extremely dilated, nonmoving,”
            that her color was monotone or gray, which is a sign of shock and “a late sign in
            the body” and “it takes a while to get to that point,” and that it “definitely
            indicates she was down for awhile.” The EMT who greeted her at the ambulance
            did not believe she was alive at first because she was pale, limp, not moving, and
            had dilated and non-reactive pupils. Also, her sclera was drying. The EMT
            indicated that the sclera is usually wet in a patient who has just died but will be
            dry in a patient who has been dead for hours or longer. Defendant Jennifer Galvan
            indicated to an investigator that she had been home that morning, stating that she
            had left out toast and jam for Prhaze for breakfast although she did not know if
            Prhaze ate it. Moreover, she reported to the same investigator that she was getting
            ready to pick her kids up from school when she heard defendant Joe Galvan
            screaming and “came back” inside, suggesting she had been home immediately
            beforehand. Given her own indication that she had been there on the morning in
            question, coupled with evidence that the injury occurred well before responders
            arrived, there was sufficient evidence to give rise to an inference that she was
            present at the time of the injury. Irrespective of her statement regarding her
            location at the time of the fatal injury, the credibility of that assertion presented an
            issue for the trier of fact. . . .

            Moreover, even if she did not inflict the fatal blow, given the extensive evidence
            of ongoing abuse in the household and her mistreatment of the child, coupled with
            her disdain for the child, an inference arises that she was complicit in the abuse, a
            natural consequence of which would be death.

Id. at *11. Judge Shapiro dissented, finding insufficient evidence that Petitioner “participated, or

assisted, in the assault on January 15, 2010, or that any of the incidents of abuse before that date

caused Prhaze’s death.” Id. at *15.

            After an unsuccessful application for leave to appeal to the Michigan Supreme Court, see

People v. Galvan, 843 N.W.2d 749 (Mich. 2014) (unpublished table decision), Petitioner filed

this federal habeas petition,3 raising a number of challenges to the Michigan Court of Appeals’


3
    Joe did not join Petitioner in filing this petition.

                                                           -6-
No. 16-1441
Galvan v. Stewart

decision. The District Court rejected them all, and issued a certificate of appealability only on

the sufficiency–of–the–evidence claim.

                                                II.

                                                A.

       We review a district court's denial of a petition for a writ of habeas corpus de

novo. Adams v. Bradshaw, 826 F.3d 306, 309 (6th Cir. 2016). Because the Michigan Court of

Appeals adjudicated Petitioner’s sufficiency–of–the–evidence claim on the merits, the

Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254, applies, making our

scope of review extremely narrow and “doubl[y] deferen[tial].” See Davis v. Lafler, 658 F.3d

525, 535 (6th Cir. 2011) (en banc).

       First, we must defer to the jury. We must assume that the jury weighed the evidence,

resolved conflicts in the testimony, and drew reasonable inferences in favor of the prosecution.

Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do not reweigh the evidence or redetermine

the credibility of witnesses. Marshal v. Lonberger, 459 U.S. 422, 434 (1983). Circumstantial

evidence is entitled to the same weight as direct evidence, Desert Palace, Inc. v. Costa, 539 U.S.

90, 100 (2003), and is sufficient to support a conviction as long as the jury is convinced of guilt

beyond a reasonable doubt, see Holland v. United States, 348 U.S. 121, 140 (1954); see also

Tucker v. Palmer, 541 F.3d 652, 657 (6th Cir. 2008) (and cases cited therein).

       Second, we also defer to the Michigan Court of Appeals’ determination that, per Jackson,

“after viewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S.

at 319. Habeas relief is available only if this conclusion is “objectively unreasonable.” Cavazos

v. Smith, 565 U.S. 1, 2 (2011) (per curiam). That is, we must respect the state court’s decision


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Galvan v. Stewart

“so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”

Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652,

664 (2004)). Stated differently, only if every fairminded jurist would agree, after construing the

evidence in the light most favorable to the prosecution, that there was insufficient evidence to

convict Petitioner, may we grant relief. See id. This is an extremely high bar.

       Although Petitioner’s sufficiency–of–the–evidence claim is grounded in the Fourteenth

Amendment, Jackson’s standard must be applied with “explicit reference to the substantive

elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16.

Petitioner was charged with being a principal or an aider and abettor in the felony murder of

Prhaze. This charge involves several component crimes.

       The principal crime is felony murder, the elements of which 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 . . . specifically enumerated [predicate felonies] in M[ich]. C[omp]. Laws
       § 750.3161(1)(b) . . . .

People v. Smith, 733 N.W.2d 351, 365 (Mich. 2007) (internal brackets omitted).

       Among these predicate felonies are first-degree child abuse and torture. See Mich.

Comp. Laws § 750.3161(1)(b). “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.” Mich.

Comp. Laws § 750.136b(2). This is a specific intent crime. People v. Maynor, 662 N.W.2d 468,

471 (Mich. Ct. App. 2003). “Serious physical harm” is “any 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.” Mich. Comp. Laws § 750.136b(1)(f).

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Galvan v. Stewart

       A person is guilty of torture if the person “with the intent to cause cruel or extreme

physical or mental pain and suffering, inflicts great bodily injury or severe mental pain or

suffering upon another person within his or her custody or physical control.” Mich. Comp.

Laws § 750.85(1). An “internal injury” meets the standard of “great bodily injury” for the

purpose of torture. Id. § 750.85(c)(ii).

       Under Mich. Comp. Laws § 767.39, to support a finding that a defendant aided and

abetted in the commission of a crime, the prosecutor must show that: “(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 had knowledge

that the principal intended its commission at the time he gave aid and encouragement.” People v.

Carines, 597 N.W.2d 130, 135 (Mich. 1999). “‘Aiding and abetting’ describes all forms of

assistance rendered to the perpetrator of a crime and comprehends all words or deeds that might

support, encourage, or incite the commission of a crime.” Id. A defendant’s close association

with the principal, and the defendant’s participation and planning of the crime, are factors to be

considered. Id. Although mere presence is insufficient, even with knowledge of the offense,

being present and giving silent moral support is enough. Sanford v. Yukins, 288 F.3d 855, 858,

862-63 (6th Cir. 2002). To be found guilty of aiding and abetting felony murder, the accomplice

must have had the same mens rea as that required of the principal, that is, malice. People v.

Barrera, 547 N.W.2d 280, 297 (Mich. 1996).

       Thus, for Petitioner to have been found guilty, she must have directly participated in the

fatal child abuse or torture of Prhaze on January 15, 2010, or aided and abetted Joe in

committing the fatal child abuse or torture, and in doing so, intended to kill, do great bodily harm

to, or create a very high risk of great bodily harm for, Prhaze. We conclude that, at a minimum,


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a reasonable jury could find that Petitioner aided and abetted Joe in the fatal abuse on January

10, 2015, because she was complicit in the discipline that led to Prhaze’s death.

                                                          B.

         Petitioner argues that there is insufficient evidence to prove the necessary elements to

sustain her conviction. Specifically, she claims that she was not present when the fatal blow was

struck, and that she did not otherwise participate in the abuse of Prhaze that led to Prhaze’s death

on January 10, 2015. In essence, she argues that there is insufficient evidence to support the

actus reus or the mens rea of aiding and abetting felony murder predicated on child-abuse or

torture. We disagree.

         First, Petitioner performed acts or gave encouragement that assisted in the fatal abuse,

with the knowledge that Joe was going to abuse Prhaze, the required actus reus. According to

Petitioner’s own testimony, on January 15, 2010, she was home for the majority of the day. That

morning, after arriving home from her job as a licensed practical nurse, instead of ensuring that

her starving step-child ate, Petitioner merely set out only toast with jam on the counter, leaving it

up to three year-old Prhaze to feed herself.4 Petitioner also admittedly witnessed Joe punishing

Prhaze by having her stand with her nose to the bedroom wall for an extended period of time.

She did not intervene, and instead took a nap. Later, around 2:30 PM, just before leaving to pick

up her other children, Petitioner observed that Joe was punishing Prhaze with a cold shower for

having wet herself—a punishment that in the past had led to beatings. Again, she chose not to

intervene, allowing the ultimately fatal abuse to proceed.

         Michigan has a broad definition of “aiding and abetting,” which includes “all forms of

assistance rendered to the perpetrator of a crime and comprehends all words or deeds that might
4
  According to the medical testimony, Prhaze had not gained a pound for over the year, and numerous witnesses
testified that they had seen Prhaze eating out of the garbage. Jam and toast are simple carbohydrates, not suitable
for a starving child. This indicates that Petitioner was actively participating in abuse or torture on January 10, 2015.

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support, encourage, or incite the commission of a crime.”         Carines, 597 N.W.2d at 135

(emphases added). This “easily encompasses situations where the alleged aider and abettor,

although silent and not committing acts directly related to the crime, was not ‘merely’ present,

but providing emotional encouragement and support. This is true particularly where, as here, the

person present is the mother, and has beaten the victim in the past.” Sanford, 288 F.3d at 862.

Thus, even if Petitioner did not say anything else to Joe when she allegedly was going to pick up

her other children, or strike the fatal blow herself, given these facts—and especially the close

relationship between Petitioner and Joe and the extensive history of their joint abuse—this rises

to the level of silent moral support, which is sufficient to show aiding and abetting. Id. at 863.

In the words of the District Court (albeit in the context of determining probable cause to bind

Petitioner over for trial), all of this evidence “was sufficient to create an inference that

[Petitioner] was complicit with respect to the ‘discipline’ that led to the fatal injury.” Galvan,

2013 WL 5338520, at *4.

       Second, the evidence supports the inference that Petitioner intended Prhaze to suffer great

bodily harm during the fatal abuse, the required mens rea. One witness testified how Prhaze had

told the witness how she was beaten for trying to get out of a cold shower. In aiding Joe in

giving Prhaze a cold shower for wetting herself, Petitioner therefore knew that great bodily harm

was a natural and probable consequence of initiating this punishment, especially considering that

Prhaze was an extremely malnourished three–year-old who had suffered chronic physical and

psychological abuse for over a year. Furthermore, as the Michigan Court of Appeals and District

Court found, the history of abuse, and Petitioner’s statements about how much she hated Prhaze,

demonstrated that Petitioner consistently and continuously intended Prhaze to suffer great bodily

harm. For example, Petitioner told a number of people how much she hated Prhaze, blamed her


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Galvan v. Stewart

for Joe Jr.’s death, and wished Prhaze had died instead of Joe Jr.; after Joe Jr.’s death, Petitioner

and Joe jointly and systematically abused and starved Prhaze for over a year; as a three year old,

Prhaze did not gain a pound in fourteen months; Prhaze had deep bruising all over her body;

Petitioner and Joe frequently gave this three-year-old black eyes and head lacerations; they

would bind, gag, and leave her alone in a room as a form of punishment, and would instruct

others watching Prhaze to do likewise. Consequently, Petitioner’s knowledge of the natural and

probable consequence of the shower punishment, combined with this history of abuse, torture,

and hatred, supported the jury’s influence that Petitioner intended that the abuse occurring on

January 15, 2010 would cause Prhaze great bodily harm.5

        As the Michigan Court of Appeals and the District Court held, the evidence supported the

jury’s conclusion that Petitioner intended that Joe cause great bodily harm to Prhaze, Petitioner

encouraged Joe in carrying out the abuse, and the abuse resulted in Prhaze’s death. This is all

that is required for sustaining a conviction for aiding and abetting felony murder predicated on

first-degree child abuse or torture in Michigan. See Smith, 733 N.W.2d at 365; Carines 597

N.W.2d at 135.

        Petitioner argues, however, that she could not have aided and abetted because (contrary

to the finding of the Michigan Court of Appeals) there is no evidence that she was present for the

fatal blow. Putting aside the question of whether there was evidence of Petitioner’s presence for

the fatal blow, under an aiding and abetting theory, Petitioner need not have actually been


5
  Petitioner argues on appeal that the history of past abuse of Prhaze was impermissible prior bad-acts evidence.
The District Court did not grant a certificate of appealability on this challenge, but only on the sufficiency of the
evidence. Nonetheless, as the Michigan Court of Appeals and the District Court both held, the evidence of past
abuse here was proper res gestae evidence and proper for the jury—and us—to consider. See People v. Knox, 674
N.W.2d 366, 370 (Mich. 2004) (quoting People v. Sabin (After Remand), 614 N.W.2d 888, 899 (Mich. 2000)
(“[E]vidence of similar misconduct is logically relevant to show that the charged act occurred where the uncharged
misconduct and the charged offense are sufficiently similar to support an inference that they are manifestations of a
common plan, scheme or system.”).

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present. Rather, she need only have given aid or encouragement in the abuse, knowing that Joe

intended to commit first-degree child abuse or torture, and that abuse must have resulted in

Prhaze’s death. See Carines, 597 N.W.2d at 135. In other words, under this theory, she is guilty

if she went to the bedroom, aided or encouraged the abuse, and then left the room before it

actually occurred and resulted in Prhaze’s death. As discussed above, there was sufficient

evidence that she aided or encouraged the fatal abuse.

       The cases that Petitioner cites do not help her. In Brown v. Palmer, while sitting in the

driver’s seat at a Detroit gas station, the petitioner’s passenger, who petitioner claimed to have

met only minutes before when he offered to give him a ride, got out of the car, fired shots at

another individual and stole that individual’s car. 441 F.3d 347, 349 (6th Cir. 2006). This court

granted habeas relief and held that, even under AEDPA’s deferential standard of review,

evidence showing only the petitioner’s presence and mere acquaintance with the passenger was

insufficient to support a theory that petitioner aided and abetted his passenger. Id. at 351-52.

Here, by contrast, Petitioner and Joe were not mere acquaintances, but spouses who coordinated

their “care” of Prhaze on a daily basis. Furthermore, there was substantial evidence that they

jointly and systematically abused Prhaze for over a year, and that, on the day in question,

Petitioner knew that Joe was engaging in the child abuse that led to Phraze’s death, and she

supported Joe in committing that abuse. Thus, unlike Brown, here the jury’s conclusion that

Petitioner aided and abetted Joe was not “speculative.” See id. at 351.

       In State v. Maupin, the Tennessee Criminal Court of Appeals overturned the aiding and

abetting first-degree murder conviction of a mother who was at work when her live-in boyfriend

beat her two-year-old son for wetting himself, and where the blows ultimately killed the boy.

No. 272, 1991 WL 197420, at *1 (Tenn. Crim. App. Oct. 7, 1991). Extensive testimony showed


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that the boyfriend abused the son, but not the defendant, and because the crime there was first-

degree murder, the state had to prove that the defendant intended the death of her son. Id. at *1-

2. Here, the evidence indicated that Petitioner was present immediately before—if not during—

the fatal abuse. Further, because the crime in this case was felony murder based on first-degree

child abuse or torture, the state needed to show only that Petitioner, in aiding or encouraging the

fatal abuse, had the intent to cause great bodily harm to Prhaze. Thus, Maupin is distinguishable.

       Nor does this court’s recent decision in Tanner v. Yukins, No. 15-1691, 2017 WL

3481867 (6th Cir. Aug. 15, 2017), persuade us that sufficient evidence is lacking in this case. In

Tanner, the State failed to present any evidence that the defendant herself murdered the victim

(as a principal) or helped the principal commit the fatal assault (as an aider and abettor). Slip op.

16-17. The “three pieces of inculpatory evidence” that the State presented—the defendant’s

admission that she was in this parking lot of the building when the murder occurred, her

statements that the murder weapon was hers, and blood near the scene matching her blood

type—established at most “reasonable speculation” that she was present at the scene of the

murder.    Slip op 16-17.      Here, however, overwhelming evidence supported Petitioner’s

conviction under the aiding and abetting theory. The testimony from the medical personnel

placed Petitioner inside the home at the time of Prhaze’s murder and Petitioner admitted that she

was present. Combined with the longstanding history of Petitioner encouraging Joe to abuse

Prhaze, a reasonable jury could find the elements of felony murder were satisfied beyond a

reasonable doubt. See Davis, 658 F.3d at 533.




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                                              III.

       The jury and the Michigan Court of Appeals determined that there was sufficient

evidence to support Petitioner’s convictions.    Like the District Court, we do not find this

conclusion objectively unreasonable. Therefore, we affirm the judgment of the District Court.




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