                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    December 18, 2018
               Plaintiff-Appellee,

v                                                                   No. 339760
                                                                    Isabella Circuit Court
DONALD RAY BEBEE II,                                                LC No. 2016-000734-FC

               Defendant-Appellant.


Before: SWARTZLE, P.J., and SAWYER and RONAYNE KRAUSE, JJ.

PER CURIAM.

       Defendant, Donald Ray Bebee II, appeals by right his convictions, following a jury trial,
of first-degree child abuse, MCL 750.136b(2), and second-degree child abuse, MCL
750.136b(3), involving his son. We affirm.

                                       I. BACKGROUND

         When the child was two years old, he suffered life-threatening seizures and brain
bleeding. The child was taken to the hospital, and emergency workers discovered that he was
covered in bruises at various stages of healing. Following this discovery, the child was removed
from his parents’ care and defendant was charged with committing the aforementioned crimes.
At trial, defendant presented expert testimony from Dr. James Downs, opining that defendant did
not intentionally cause the child’s head injury. Rather, Dr. Downs opined that the child’s injuries
resulted from his accidental ingesting of cocaine and heroin used by his parents, which caused
the child to suffer a seizure during which he fell and injured his head. The prosecutor countered
this testimony with the expert testimony of the child’s treating physician, Dr. James Inman, and a
child-abuse-and-neglect pediatrician, Dr. Angela May. Both of the prosecutor’s experts testified
that the child’s injuries were the result of a rapid acceleration-deceleration injury, colloquially
known as “shaken-baby syndrome.” Accordingly, both experts opined that the child had been
abused.

       The jury found defendant guilty of one count of first-degree and one count of second-
degree child abuse. The trial court sentenced defendant as a fourth-offense habitual offender,
MCL 769.12, to serve 33 to 50 years of imprisonment for his first-degree child-abuse conviction
and 25 to 50 years of imprisonment for his second-degree child-abuse conviction.


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       This appeal followed.

                                          II. ANALYSIS

        Jury Instruction. On appeal, defendant first argues that the trial court erred by declining
to issue a modified jury instruction on “knowingly” causing harm for first-degree child abuse.
This Court reviews for an abuse of discretion the trial court’s decision regarding whether a
specific jury instruction applies in a defendant’s case. People v Armstrong, 305 Mich App 230,
239; 851 NW2d 856 (2014). The trial court abuses its discretion when its decision falls outside
the range of reasonable and principled outcomes or when it makes an error of law. People v
Duncan, 494 Mich 713, 722-723; 835 NW2d 399 (2013).

        The trial court issued the model jury instruction for first-degree child abuse, which
provides in pertinent part:

       The defendant is charged with the crime of first-degree child abuse. To prove this
       charge, the prosecutor must prove each of the following elements beyond a
       reasonable doubt:

                                              * * *

        . . . that the defendant either knowingly or intentionally caused [serious physical
       harm/serious mental harm] to [name child]. [M Crim JI 17.18(1) and (4)
       (brackets in original).]

Defendant argued that the trial court should issue an additional instruction indicating that the
statute required the prosecutor to prove that defendant “did an act or acts intending to cause
serious physical harm or did an act or acts knowing it would cause serious physical harm.” The
trial court declined defendant’s proposed supplemental instruction and issued the standard jury
instruction.

        Defendant argues that the trial court erred by denying his motion to supplement the
standard jury instruction. We disagree. It is hard to tell what is captured by defendant’s
proposed instruction that was not already presented by the standard instruction. Given the
Supreme Court’s conclusion in People v Maynor, 470 Mich 289, 295-296; 683 NW2d 565
(2004), that the standard jury instruction for first-degree child abuse correctly focuses the jury’s
analysis on the issue of intent, we are unable to conclude that the trial court’s decision is outside
the range of reasonable and principled outcomes. Defendant’s claim is without merit.

       Expert Testimony. Defendant next challenges the trial court’s admission of the expert
testimonies of Dr. Inman and Dr. May. Defendant did not challenge the admission of this
testimony at trial. Thus, our review is for plain, outcome-determinative error. People v Carines,
460 Mich 750, 763; 597 NW2d 130 (1999).

       Defendant argues that the trial court abused its discretion by admitting the expert
testimonies because there is a controversy in the medical field regarding acceleration-
deceleration injuries. Defendant further argues that the trial court erred by failing to hold a


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Daubert1 hearing before admitting the evidence, and that such a hearing would have revealed
this controversy. We disagree.

        First, defendant has waived any challenge to the lack of a Daubert hearing by his
counsel’s statement to the trial court that defendant would not seek such a hearing. 2 People v
Szalma, 487 Mich 708, 726; 790 NW2d 662 (2010). Second, even if defense counsel had sought
a Daubert hearing, the record confirms that the expert testimony was admissible. The Supreme
Court has recognized that there is a “prominent controversy within the medical community”
regarding acceleration-deceleration injury diagnoses. People v Ackley, 497 Mich 381, 391-392;
870 NW2d 858 (2015). Yet, this controversy does not preclude the trial court from admitting the
expert testimony if it is based upon reliable scientific principles. People v Unger, 278 Mich App
210, 217-218; 749 NW2d 272 (2008). Here, defendant has not provided any evidence from
which this Court could conclude that the experts’ testimony was not based upon reliable
scientific principles. Indeed, it is hard to conclude that the experts’ testimony was unreliable
when the experts themselves acknowledged the controversy surrounding acceleration-
deceleration injury diagnoses. Defendant’s claim is without merit.

        Photographic Evidence. Defendant argues that the trial court erred by admitting more
than 100 photographs depicting the child’s injuries. “Photographic evidence is generally
admissible as long as it is relevant, MRE 401, and not unduly prejudicial, MRE 403. Exclusion
is required under MRE 403 when the danger of unfair prejudice substantially outweighs the
probative value of the evidence.” People v Brown, ___ Mich App ___, ___; ___ NW2d ___
(2018) (Docket No. 339318); slip op at 3 (cleaned up). “Generally, photographs that are merely
calculated to arouse the sympathies or prejudices of the jury should not be admitted.” Id. at ___;
slip op at 4 (cleaned up). Nevertheless, “if a photograph is otherwise admissible for a proper
purpose, it is not rendered inadmissible merely because it brings vividly to the jurors the details
of a gruesome or shocking accident or crime.” Id. (cleaned up). “A decision on the admissibility
of photographs cannot be based solely on the graphic nature of photographs.” Id. We review the
trial court’s decision to admit photograph evidence for an abuse of discretion. People v
McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003).

       In this case, defendant—on his own behalf, before trial—specifically objected to
admitting photographs on the ground that they were substantially more prejudicial than
probative. The trial court failed to rule on the issue. The trial court has a responsibility to


1
 Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993).
MRE 702 incorporates the Daubert standards of reliability. Gilbert v DaimlerChrysler Corp,
470 Mich 749, 781; 685 NW2d 391 (2004).
2
  We earlier denied defendant’s motion to remand for a Daubert hearing and to present a claim
of ineffective assistance of counsel for his counsel’s decision to forego a Daubert hearing.
People v Bebee, unpublished order of the Court of Appeals, entered October 30, 2018 (Docket
No. 339760). Because a Daubert hearing would not have resulted in the exclusion of the
challenged expert testimony, defendant’s claim of ineffective assistance of counsel would
likewise be without merit.


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carefully review proffered photographs and determine whether they are admissible. See People v
Mills, 450 Mich 61, 78; 537 NW2d 909 (2008), mod 450 Mich 1212 (1995). Accordingly, we
conclude that the trial court erred by admitting the photographs without reviewing them.
Nonetheless, this error is harmless because we conclude that the photographs were admissible.
MCL 769.26.

        Each photograph here depicts either a different injury or pattern of bruises on a specific
part of the child’s body or a different angle of the injury. In a case, such as this one, where the
defendant is charged with abusing a child, photographic evidence of the child’s injuries is
particularly probative. See Brown, ___ Mich App at ___; slip op at 4. Indeed, experts in this
case testified that the number and location of the child’s injuries formed the basis of their
conclusion that the child had been abused. The admission of these photographs corroborated the
experts’ testimony and demonstrated defendant’s intent to cause serious harm to the child. See
id. The photographs were not inadmissible merely because they were numerous or because they
depicted the graphic injuries defendant inflicted upon the child. Id. Defendant’s claim is
without merit.

        Testimony of the Child’s Mother. In a brief filed in propria persona, defendant argues
that the trial court should not have allowed the child’s mother to testify because she had been
coerced into testifying by having her parental rights threatened. The record does not support
defendant’s argument.

         Prosecutorial intimidation of witnesses may violate a defendant’s constitutional right to a
fair trial. People v Pena, 383 Mich 402, 406; 175 NW2d 767 (1970). In this case, the child’s
mother testified that there was a petition to terminate her parental rights, but that she was not
receiving any consideration regarding that petition for testifying against defendant. Rather, the
child’s mother stated that she was testifying because she had not been a good mother and “it’s
my last chance or opportunity to protect [the child] the best that I can and be that voice he
needs.” Because the record is devoid of any indication that the child’s mother was coerced into
testifying, defendant’s claim is without merit.

        Sentencing. Defendant argues that the record did not support assessing points under
offense variables (OVs) 3, 4, and 10, and that trial counsel rendered ineffective assistance by
failing to challenge these assessments. The proper interpretation and application of the
sentencing guidelines is a legal question that this Court reviews de novo. People v Morson, 471
Mich 248, 255; 685 NW2d 203 (2004). “Under the sentencing guidelines, the circuit court’s
factual determinations are reviewed for clear error and must be supported by a preponderance of
the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts,
as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application
of the facts to the law, is a question of statutory interpretation which an appellate court reviews
de novo.” Id. A claim of ineffective assistance of counsel presents a mixed question of law and
fact. People v Hunter, 493 Mich 1015; 829 NW2d 871 (2013). We review questions of law de
novo and the trial court’s factual findings for clear error. Id.

       The trial court assessed 25 points under OV 3. MCL 777.33(c) requires that the trial
court assess OV 3 at 25 points when “[l]ife threatening or permanent incapacitating injury
occurred to a victim.” Defendant argues that 25 points was inappropriate because there was no

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evidence that the child received a life-threatening or permanent injury. We disagree. Dr. Inman
testified that the child’s injuries were life threatening. Indeed, the doctor was “surprised” that
the child survived, given the “extent of his injuries.” Dr. Inman’s testimony was corroborated by
other witnesses and, given the fact that the child had severe bleeding in his brain, a conclusion
that the child’s injuries were life-threatening appears inescapable. 25 points was appropriate
under OV 3.

        The trial court scored OV 4 at 10 points. MCL 777.34(1)(a) requires the trial court to
score 10 points for OV 4 if a “[s]erious psychological injury requiring professional treatment
occurred to a victim.” “The trial court may assess 10 points for OV 4 if the victim suffers, among
other possible psychological effects, personality changes, anger, fright, or feelings of being hurt,
unsafe, or violated.” Armstrong, 305 Mich App at 247.

        Defendant argues that the trial court erred by assessing 10 points because there was no
record evidence that the child suffered a psychological injury. We disagree. The child’s injuries
occurred, at least in part, in the bathtub. The child’s foster parent testified at defendant’s
sentencing that the child responded to attempts to take baths by fighting, kicking, screaming, and
yelling, “[N]o, good boy.” The child’s foster parent also testified that the child did not sleep well
and had nightmares, presumably resulting from his time with defendant. See People v
McChester, 310 Mich App 354, 363; 873 NW2d 646 (2015). The record supports the trial
court’s score of 10 points for OV 4.

        The trial court scored OV 10 at 10 points. MCL 777.40(1)(b) directs the trial court to
assess 10 points under OV 10 if “[t]he offender exploited a victim’s disability, mental disability,
youth or agedness, or a domestic relationship.” Defendant argues that scoring 10 points was
inappropriate under OV 10 because a difference in age does not automatically equate to
exploiting a vulnerability. We disagree that 10 points was not appropriate under OV 10.
Defendant is the child’s father and, until the child’s removal from his care, was the child’s
caregiver. By perpetrating the abuse on his son on what appears to be multiple occasions,
defendant exploited his parental relationship with the child. The young child simply could not
escape the abuse given the familial relationship and his youth. Moreover, the child’s aversion to
baths, specifically his comment to his foster parents that he was a “good boy,” indicates that the
abuse took place, at least in part, in the context of defendant disciplining the child. Defendant
exploited his right to discipline the child to perpetrate the abuse for which he was convicted. Ten
points was appropriate under OV 10.

       Finally, in a brief filed in propria persona, defendant argues that his sentences were not
proportionate to the seriousness of his offense. Because defendant’s sentence was within the
guidelines range, it is presumed proportionate and must be affirmed on appeal. People v
Schrauben, 314 Mich App 181, 196; 886 NW2d 173 (2016). Defendant’s claim is without merit.




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Affirmed.



                  /s/ Brock A. Swartzle
                  /s/ David H. Sawyer
                  /s/ Amy Ronayne Krause




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