                           STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      FOR PUBLICATION
                                                                      September 19, 2017
               Plaintiff-Appellee,

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.

GLEICHER, J. (concurring).

        I fully concur with the majority’s determination that Kimberly Murphy did not engage in
an affirmative act that caused harm to Trinity. I write separately to express my view that even if
Murphy’s failure to clean her home could be regarded as an “act,” it did not meet the applicable
mens rea standard: recklessness. This alternative ground also supports vacating Murphy’s
conviction.

                                 I. FACTUAL BACKGROUND

        No one knows how or where Trinity found the morphine pill that the prosecution
theorizes took the child’s life. The investigators’ best guess is that the pill landed on the floor of
Murphy’s mother’s bedroom at some unknown point in time, and that Trinity found it when she
crawled around on the room’s un-vacuumed carpet. But this is truly a guess, as the investigators
noted that the pills were otherwise contained in a child-proof vial kept in a closet, on a shelf
above Trinity’s reach.

        The trial evidence focused relentlessly on the conditions of the home—the filthy kitchen
and bathroom, the smelly garbage bags in the laundry room, and the unpleasant, dirty, and, as
characterized by an investigator, altogether “deplorable” state of the home. No evidence was
presented, however, about any specific circumstances that led to Trinity’s ingestion of the pill.
After Murphy’s mother, Muriel Cheeks, died of cancer, one of Murphy’s adult children moved
into Cheeks’s bedroom. Trinity watched television in that room during the evening before the
child died. The lead investigator speculated that Cheeks or one of her caregivers may have
accidentally dropped one of Cheeks’s brownish-colored morphine pills on the brown carpet, and
that two weeks later, Trinity ate it.



                                                 -1-
        During her closing argument, the prosecutor strenuously maintained that Murphy’s
tolerance of the filthy living conditions equated with a reckless act consistent with second-degree
child abuse: “Their recklessness was their inability to care. Their indifference to consequence.
Their inability to go in and make sure that medication was taken out of the house. Make sure
that room was kept in an environment fit for children.” The prosecutor emphasized the filthy
conditions in the home and that Child Protective Services had previously intervened for that
reason:

                There was evidence in the case that talked about the defendants’ prior
       Child Protective Service history. And that’s really important because we know
       that this isn’t a onetime thing. This is how they’ve always been. Their whole
       entire lives.

              Services were provided to this family. Is there anything we can do to help
       you make your home conditions more fit? More fit for your children. We will do
       anything we need to do. We will help you pay your rent. We will help you with
       your heating bill. We will provide you beds. But every [sic] their hands out to
       get any of these services, they don’t turn around and do anything to better their
       children. In fact, their children were consistently sent to school in unkempt
       conditions.

                And why is that important? It leads directly back to their lifestyle. The
       lifestyle they’ve always had. One in which that was reckless and one that is just
       indifferent to the consequences of their actions.[1]

In her rebuttal argument the prosecutor persisted in hammering this theme:

               Their recklessness was their inability to care. Their indifference to
       consequence. Their inability to go in and make sure that medication was taken
       out of the house. Make sure that room was kept in an environment fit for
       children. An environment that they were taught about. Child Protective Services
       comes in their house. Let’s help fix this. Let’s do what we need to do. Here’s an
       intensive program. Here’s another program. Here’s another program. This isn’t
       an accident. This isn’t some oh well we didn’t know. It’s not cleaning day. It’s
       not laundry day. We just didn’t vacuum. They didn’t even find a vacuum in the
       house. There’s a brand new broom.

                                              * * *

              There were no cleaning supplies in the house. Police said that and found
       nothing in the (inaudible).



1
  The trial court sustained an objection to this argument but did not instruct the jury to disregard
it.


                                                -2-
               That’s the defendant’s recklessness. That’s what they did. They’re [sic]
       unkempt house. They’re [sic] inability to clean. They’re [sic] inaction caused
       Trinity to die. It was not Trinity’s time to go. That baby is not here today
       because of what they failed to do. Give her living conditions that were safe.

       The trial court instructed the jury that it could find Murphy guilty if it determined that
Murphy had committed “some reckless act,” as a result of which “Trinity Murphy suffered a
serious physical harm.” The court defined “reckless” as “[u]tterly unconcerned about the
consequences of some action. Indifferent to consequences.”

             II. RECKLESSNESS, NEGLIGENCE, AND THE CRIMINAL LAW

       According to the prosecutor’s brief on appeal, “[a]t trial, the People argued that
Defendant’s ‘reckless act’ was her failure to protect Trinity by maintaining a safe living
environment, and that such recklessness ultimately allowed Trinity to find and ingest the
morphine.” The majority correctly rejects this argument, summarizing that “[s]imply failing to
take an action does not constitute an act.” I would add that even if Murphy “acted” by
permitting Trinity access to Cheeks’ bedroom, as a matter of law that act was not reckless.

        Unfortunately, the Legislature did not provide a definition of the term “reckless” used in
the second-degree child abuse statute, MCL 750.136b(3)(a). In People v Gregg, 206 Mich App
208; 520 NW2d 690 (1994), this Court considered whether the fourth-degree child abuse statute,
MCL 750.136b(5), was unconstitutionally vague because it too lacks a definition of “reckless.”
We concluded that a dictionary definition sufficed to explain the term, and cited two dictionaries
for guidance:

       Black’s Law Dictionary (6th ed) defines “reckless” as:

          Not recking; careless, heedless, inattentive; indifferent to consequences.
          According to circumstances it may mean desperately heedless, wanton or
          willful, or it may mean only careless, inattentive, or negligent. For conduct
          to be “reckless” it must be such as to evince disregard of, or indifference to,
          consequences, under circumstances involving danger to life or safety to
          others, although no harm was intended.

       The Random House College Dictionary, Revised Edition, defines “reckless” as:

          1. utterly unconcerned about the consequences of some action; without
          caution; careless . . . . 2. characterized by or proceeding from such
          carelessness. [Id. at 212.]

“Given these dictionary definitions of the word ‘reckless’ and applying its plain and ordinary
meaning to the language of the statute,” this Court upheld the statute’s constitutionality. Id.

       In the years since Gregg was decided, a number of unpublished decisions have cited it for
the proposition that garden-variety carelessness is included in the definition of “recklessness”
under the second or fourth-degree child abuse statutes. Here, the trial court used the first


                                               -3-
Random House College Dictionary definition to instruct the jury as to the term’s meaning
(“utterly unconcerned about the consequences of some action”).

        I respectfully suggest that Gregg was wrongly decided, and that this case showcases the
need for a definition of “reckless” consistent with fundamental criminal law principles rather
than dictionary definitions.2

        The Legislature is free to make certain acts criminal regardless of intent, People v Quinn,
440 Mich 178, 189; 487 NW2d 194 (1992), just as it may decide to “impose a criminal
responsibility for a tort that theretofore carried with it only civil liability.” People v McMurchy,
249 Mich 147, 162; 228 NW 723 (1930). This Court has similarly expounded that “[t]he
Legislature has the power to define a crime without regard to the presence or absence of criminal
intent or culpability in its commission.” People v McKee, 15 Mich App 382, 385; 166 NW2d
688 (1968). When the Legislature identifies a requisite intent without defining it, I submit that
the legal definition of that intent must comport with the common law. Under the common law,
“recklessness” and “carelessness” involve different and distinct mental states, and this Court
erred in Gregg by conflating them.

         When a statute omits a definition of a legal term of art, our Supreme Court looks to the
common law for guidance. In McMurchy, 249 Mich at 169-170, our Supreme Court elucidated
the definition of “negligence” that applied to the negligent homicide statute under consideration.
“Negligence . . . consists of a want of reasonable care or in the failure of duty which a person of
ordinary prudence should exercise under all the existing circumstances in view of the probable
injury.” Id. The “settled” law regarding negligence “is neither vague, uncertain, or indefinite,”
the McMurchy Court explained, and “[j]ust as we can ascertain civil liability by certain rules, so
also can we determine criminal liability by similar rules.” Id. at 170-171. And “[t]he very same
evidentiary facts required to prove civil liability for negligence may be used to prove criminal
liability.” Id. at 170.

        Recklessness and negligence are not interchangeable legal concepts, however. Our
Supreme Court has defined reckless misconduct in the civil context as bordering on willfulness;
the reckless actor appreciates that harm may result from his act, but does not care:


2
  Gregg relied in part on the sixth edition of Black’s Law Dictionary, which was published in
1990. The current edition defines “reckless” differently, and in a manner consistent with use of
the term by most courts:
       Characterized by the creation of a substantial and unjustifiable risk of harm to
       others and by a conscious (and sometimes deliberate) disregard for or indifference
       to that risk; heedless; rash. Reckless conduct is much more than mere negligence;
       it is a gross deviation from what a reasonable person would do. [Black’s Law
       Dictionary (10th ed), p 1462.]

The dictionary then directs readers to compare—“Cf.”—the contrasting definition of “careless.”




                                                -4-
       “One who is properly charged with recklessness or wantonness is not simply more
       careless than one who is only guilty of negligence. His conduct must be such as
       to put him in the class with the wilful doer of wrong. The only respect in which
       his attitude is less blameworthy than that of the intentional wrongdoer is that,
       instead of affirmatively wishing to injure another, he is merely willing to do so.
       The difference is that between him who casts a missile intending that it shall
       strike another and him who casts it where he has reason to believe it will strike
       another, being indifferent whether it does so or not.” [Gibbard v Cursan, 225
       Mich 311, 321; 196 NW 398 (1923), quoting Atchison, Topeka & Sante Fe R Co v
       Baker, 79 Kan 183; 98 P 804 (1908).]

The Legislature’s approach to the gross negligence exception to governmental immunity sheds
further light on the meaning of “recklessness” under Michigan law by equating the two concepts.
Gross negligence is defined by the statute as “conduct so reckless as to demonstrate a substantial
lack of concern for whether an injury results.” MCL 691.1407(2)(c). The Supreme Court has
followed the Legislature’s lead, using the terms “gross negligence” and “reckless”
interchangeably when interpreting the meaning of “gross negligence.” See Maiden v Rozwood,
461 Mich 109, 123; 597 NW2d 817 (1999) (“In addition to requiring that a plaintiff show
reckless conduct, the content or substance of the evidence proffered must be admissible in
evidence.”).

       This Court has applied the gross negligence/recklessness standard quite rigorously:

       Gross negligence is defined as “conduct so reckless as to demonstrate a
       substantial lack of concern for whether an injury results.” Simply alleging that an
       actor could have done more is insufficient under Michigan law, because, with the
       benefit of hindsight, a claim can always be made that extra precautions could have
       influenced the result. However, saying that a defendant could have taken
       additional precautions is insufficient to find ordinary negligence, much less
       recklessness. Even the most exacting standard of conduct, the negligence
       standard, does not require one to exhaust every conceivable precaution to be
       considered not negligent.

       The much less demanding standard of care—gross negligence—suggests, instead,
       almost a willful disregard of precautions or measures to attend to safety and a
       singular disregard for substantial risks. It is as though, if an objective observer
       watched the actor, he could conclude, reasonably, that the actor simply did not
       care about the safety or welfare of those in his charge. [Tarlea v Crabtree, 263
       Mich App 80, 90; 687 NW2d 333 (2004) (citation omitted).]

Assuming that under Michigan law gross negligence and reckless are roughly congruent
concepts, the standard they describe differs substantially from that of general negligence. A
grossly negligent or reckless individual is willfully indifferent to the safety of others, while a
negligent actor merely fails to measure up to the standard of ordinary care.

      The United States Supreme Court explored the meaning of the term “recklessness” in
Farmer v Brennan, 511 US 825; 114 S Ct 1970; 128 L Ed 2d 811 (1994), a case addressing the

                                               -5-
liability of prison officials for assaults committed by inmates against a transsexual prisoner.
Longstanding Supreme Court precedent established that to state a claim under the Eighth
Amendment, a prisoner must prove that prison officials were deliberately indifferent to his or her
medical needs. Id. at 834. In Farmer, the Court explored the meaning of “deliberate
indifference,” honing in on the mental state required to justify liability. The Court explained that
the deliberate indifference standard “entails something more than mere negligence,” and
something less than “purpose or knowledge.” Id. at 835-836. The Court observed that many
Courts of Appeal had “routinely equated deliberate indifference to recklessness,” and turned to a
detailed examination of the contours of that standard. Id. at 836.

        “[T]he term recklessness is not self-defining,” the Court began, and its characteristics
differ depending on whether the underlying case is civil or criminal:

       The civil law generally calls a person reckless who acts or (if the person has a
       duty to act) fails to act in the face of an unjustifiably high risk of harm that is
       either known or so obvious that it should be known. See Prosser and Keeton § 34,
       pp 213-214; Restatement (Second) of Torts § 500 (1965). The criminal law,
       however, generally permits a finding of recklessness only when a person
       disregards a risk of harm of which he is aware. See R. Perkins & R. Boyce,
       Criminal Law 850-851 (3d ed 1982); J. Hall, General Principles of Criminal Law
       115-116, 120, 128 (2d ed 1960) . . .; American Law Institute, Model Penal Code §
       2.02(2)(c), and Comment 3 (1985); but see Commonwealth v. Pierce, 138 Mass
       165, 175-178 (1884) (Holmes, J) (adopting an objective approach to criminal
       recklessness). [Id. at 836-837 (emphasis added).]

The prisoner-petitioner in Farmer urged the Court to adopt the civil-law recklessness paradigm,
while the warden-respondent advocated the approach consistent with the criminal law. The
Court chose a definition much closer to the latter:

       We hold . . . that a prison official cannot be found liable under the Eighth
       Amendment for denying an inmate humane conditions of confinement unless the
       official knows of and disregards an excessive risk to inmate health or safety; the
       official must both be aware of facts from which the inference could be drawn that
       a substantial risk of serious harm exists, and he must also draw the inference. [Id.
       at 837.]

Summarizing, the Court held, “subjective recklessness as used in the criminal law is a familiar
and workable standard that is consistent with the Cruel and Unusual Punishments Clause as
interpreted in our cases, and we adopt it as the test for ‘deliberate indifference’ under the Eighth
Amendment.” Id. at 839-840.

        Drawing on these precedents, I suggest that the “reckless” standard incorporated in MCL
750.136b(a) requires proof that a defendant disregarded a known, substantial, and unjustifiable
risk of serious injury. In my view, recklessness requires conscious disregard of risk—anything




                                                -6-
less, such as mere “indifference,” is more consistent with negligence.3 A second aspect of the
“recklessness” concept bears emphasis. When used in civil cases in Michigan or by the United
States Supreme Court, determining whether conduct is “reckless” inherently involves an
assessment of risk. Shortcutting the analysis to “carelessness” or “utter indifference to
consequences” omits this critical component of the concept.4

         The portion of the second-degree child abuse statute governing Murphy’s prosecution
does not criminalize parental negligence. Rather, the prosecutor charged Murphy under the
subsection of the statute declaring that “a person is guilty of child abuse in the second degree if
. . . the person’s reckless act causes serious physical harm or serious mental harm to a child.”
MCL 750.136b(3)(a). The same subsection of the statute permits conviction on proof that “the
person’s omission causes serious physical harm or serious mental harm to a child.” Notably, the
Legislature specifically defined the “omission” in this context as “a willful failure to provide the
food, clothing, or shelter necessary for a child’s welfare or the willful abandonment of a child.”
MCL 750.136b(c).

        The statutory language leads to two inescapable conclusions: the Legislature intended
that a person could be convicted under MCL 750.136b(c) only on proof of “recklessness” or
“willful” failure to provide for a child’s needs. The statute simply does not countenance
conviction based on mere negligence, despite Gregg.

       The Model Penal Code supplies a definition of “recklessly” that comports with Michigan
law and, in my view, merits adoption:

       A person acts recklessly with respect to a material element of an offense when he
       consciously disregards a substantial and unjustifiable risk that the material


3
  Although somewhat difficult to parse, obiter dictum in People v Datema, 448 Mich 585, 598-
599; 533 NW2d 272 (1995), seems to signal the Court’s approval of a definition of “reckless”
that incorporated the concepts of “wantonness” and “willfulness.” “Wilful and wanton
misconduct . . . describes conduct that is either wilful—i.e., intentional, or its effective
equivalent. ‘Willful and wanton misconduct is made out only if the conduct alleged shows an
intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent
of a willingness that it does.’ ” Jennings v Southwood, 446 Mich 125, 140; 521 NW2d 230
(1994) (emphasis in original).
4
 These ideas are neither new nor my own. As a justice of the Massachusetts Supreme Court,
Oliver Wendell Holmes described the role of risk as follows:
       If men were held answerable for everything they did which was dangerous in fact,
       they would be held for all their acts from which harm in fact ensued. The use of
       the thing must be dangerous according to common experience, at least to the
       extent that there is a manifest and appreciable chance of harm from what is done,
       in view either of the actor’s knowledge or of his conscious ignorance.
       [Commonwealth v Pierce, 138 Mass 165, 179 (1884).]



                                                -7-
         element exists or will result from his conduct. The risk must be of such a nature
         and degree that, considering the nature and purpose of the actor’s conduct and the
         circumstances known to him, its disregard involves a gross deviation from the
         standard of conduct that a law-abiding person would observe in the actor’s
         situation. [Model Penal Code, § 2.02(c).]

Many states have adopted this definition, either statutorily or under the common law. See State v
O’Connell, 149 Vt 114, 115 n 1; 540 A2d 1030 (1987); People v Hall, 999 P2d 207, 217 (Colo,
2000); State v Chavez, 146 NM 434, 445-446; 211 P3d 891 (2009).

        Chavez supplies valuable insights applicable in child abuse cases. The defendant in that
case was convicted of child abuse by endangerment based on “impoverished and dirty living
conditions that, in the State’s opinion, posed a significant danger” to Chavez’s children. Id. at
436. One of the children, Shelby, died after having been placed to sleep in a dresser drawer
filled with blankets and padding when her bassinet broke. Id. The jury acquitted the defendant
of child abuse resulting in death, but found him guilty of child abuse by endangerment regarding
that child and two other surviving children. Id.

        The New Mexico Supreme Court granted leave to “explore the sufficiency and nature of
the evidence necessary to sustain a child endangerment conviction when it is based only on filthy
living conditions and without any underlying criminal conduct.” Id. The Court observed that the
applicable jury instruction directs the jury that to convict of child endangerment, it must find that
“defendant’s conduct created a substantial and foreseeable risk of harm.” Id. at 440 (emphasis
in original, quotation marks omitted). Whether the charged conduct meets that standard, the
Court explained, depends on “the gravity of the risk that serves to place an individual on notice
that his conduct is perilous, and potentially criminal[.]” Id. at 441. The Court reviewed cases
from New Mexico and other jurisdictions in which convictions had been reversed because the
risk of harm was “too remote, which may indicate that the harm was not foreseeable.” Id. As
applied to cases involving “filthy living conditions,” the Court concluded that the state bears the
burden of proving “a substantial and foreseeable risk that such filthy living conditions
endangered the child.” Id. at 442.

        The Chavez Court also addressed in detail the charge levied against the defendant arising
from his daughter’s death. The state pursued that prosecution “under a criminal negligence
theory and, therefore, was required to prove beyond a reasonable doubt that Defendant ‘knew or
should have known of the danger involved and acted with a reckless disregard for the safety and
health of the child.’ ” Id. at 445.5 The Court summarized this burden as follows:

         Thus, the State had the burden to first establish the actus reus of endangerment—
         that the drawer created a substantial and foreseeable risk of harm. Once the
         danger is established, the State must also show that a reasonable person would
         have apprehended the risk, and that Defendant recklessly disregarded the risk by
         allowing Shelby to sleep in the drawer.


5
    The Court specifically noted that this requirement was based on Model Penal Code, § 2.02(c).


                                                -8-
               The State sought to show that the sleeping arrangement created a serious
       danger to Shelby due to Shelby’s size in relation to the drawer and bedding. At
       five months old, Shelby was approximately twenty-six inches long. The drawer
       that Defendant chose for his daughter measured 29–by–15 inches. Several
       witnesses testified that the drawer, particularly when filled with soft bedding and
       a blanket, did not allow Shelby much room to move around. The State presented
       testimony that if the bedding blocked Shelby’s nose and mouth, she may not have
       had room to free herself, creating a possibility that she could suffocate. In
       addition, witnesses testified that if Shelby became pressed up against the wall of
       the drawer, she might re-breathe her expelled air, high in carbon dioxide, creating
       a risk of asphyxiation. This is the sort of substantial injury contemplated by our
       endangerment statute.

               However, in addition to the gravity of the potential injury, we must also
       consider whether it was foreseeable that an injury would actually occur. In
       performing this review, we note the absence of evidence in the record to indicate
       that the sleeping conditions presented anything more than a mere possibility of
       harm. [Id. at 446.]

        The trial evidence supported only that placing a child to sleep in a drawer carried a “very
small, unpredictable and unmeasurable” degree of risk, especially when compared with “failing
to secure a child in a car seat.” Id. Further, the Court expounded, “[t]he elevated risk, if any,
created by the small size of the drawer in relation to Shelby’s body, and by including soft
bedding in the drawer which restricted the infant’s ability to move, is not quantifiable based
solely on common knowledge or experience.” Id. at 446-447. In language I find directly
pertinent here, the Court expressed:

       Specific evidence was needed to assist the jury in ensuring that a conviction
       would be based on science and not emotion. This is particularly important in this
       case, where the trial focused on the death of an infant and the level of parenting
       was easy to criticize. Natural factors of sympathy and even outrage in the face of
       an infant death can create a perilous situation where judgment is based on
       emotion and not evidence. [Id. at 447.]

                                       III. APPLICATION

        Applying the legal framework I have described, I conclude that Murphy’s failure to
vacuum her mother’s bedroom or otherwise locate the stray pill did not evidence conscious
disregard of a substantial and unjustifiable risk that death would result from her conduct.
Perhaps Murphy was negligent in failing to clean Cheeks’ room, and in permitting Trinity to
crawl on a dirty carpet. But the standard is recklessness, not negligence. It stretches credulity
that Murphy or any objective, reasonable person would have perceived that allowing the child in
that room would expose her to a substantial and unjustifiable risk of serious harm. No evidence
supports that Murphy consciously disregarded a foreseeable risk that the child would find
something fatally toxic on the carpet and die; the pills were in a child-proof container and on a
shelf above Trinity’s reach. Nor can such awareness on Murphy’s part be inferred. What
occurred here was unforeseen, wholly unanticipated, and shocking. While most people

                                                -9-
understand that filthy living conditions are not healthy for a child, it is a quantum leap to
conclude that a dirty home necessarily presents a substantial and foreseeable risk of serious
injury. And in this case, the harm was simply not predictable or foreseeable.

       To demonstrate that Murphy’s conduct created a substantial and unjustifiable risk of
serious harm, the prosecutor would have had to produce some fact or create some inference
supporting that Murphy knew or should have known that a pill had fallen on the carpet, or likely
had fallen. No such facts or inferences exist. Even after all of the evidence collection and
analysis had been completed, the source of the pill remains unclear. Assuming it was on the
carpet—a good guess, but a guess nevertheless—no one knows when, how, or why that
happened. The evidence did not come close to establishing a foreseeable danger or that Murphy
disregarded a known, substantial and unjustifiable risk.

       As in Chavez, this was a case built on emotion rather than fact or law. See id. at 447.
Because any possible “act” that Murphy engaged in did not qualify as reckless, I would vacate
her conviction on this ground.



                                                           /s/ Elizabeth L. Gleicher




                                             -10-
