                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      FOR PUBLICATION
                                                                      December 2, 2014
               Plaintiff-Appellee,

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

               Defendant-Appellant.


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

MARKEY, J. (concurring in part and dissenting in part).

        I concur with the majority’s conclusion that the trial court erred by refusing to instruct the
jury on the lesser-included offense of second-degree child abuse, MCL 750.136b(3). I, do,
however, respectfully disagree that the error was harmless. On the facts of this case, the only
difference between first and second-degree child abuse, MCL 750.136b(2), was defendant’s state
of mind. See People v Maynor, 470 Mich 289, 291; 683 NW2d 565 (2004) (A conviction for
first-degree child abuse requires proof “not only that defendant intended to commit the act, but
also that defendant intended to cause serious physical harm or knew that serious physical harm
would be caused by her act.”). Defendant testified at trial that he acted without the requisite state
of mind. Although the jury clearly rejected defendant’s testimony on this point, they were faced
with the prospect of finding defendant not guilty on these egregious facts or convicting defendant
of what in Michigan is a capital offense, felony-murder supported by first-degree child abuse.

        In finding the error in this case harmless, the majority relies on People v Cornell, 466
Mich 335, 361; 646 NW2d 127 (2002), which held that the harmless error analysis applies “to
instructional errors involving necessarily included lesser offenses.” The Court applied MCL
769.26, which provides: “No judgment or verdict shall be set aside or reversed or a new trial be
granted by any court of this state in any criminal case, on the ground of misdirection of the jury, .
. . , unless in the opinion of the court, after an examination of the entire cause, it shall
affirmatively appear that the error complained of resulted in a miscarriage of justice.” See
Cornell, 466 Mich at 362. The Court also discussed People v Lukity, 460 Mich 484; 596 NW2d
607 (1999), a case in which the Court applied MCL 769.26 to evidentiary error. Cornell, 466
Mich at 363-364. The Court held in that case that under § 26, “a preserved, nonconstitutional
error is not a ground for reversal unless ‘after an examination of the entire cause, it shall
affirmatively appear’ that it is more probable than not that the error was outcome determinative.”
Lukity, 460 Mich at 495-496. The majority applies this last formulation to conclude on review of

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the evidence at trial that defendant “has not sustained his burden of demonstrating that, properly
instructed, it was more probable than not that the jury would have convicted him of second-
degree child abuse under MCL 750.136b(3)(b) rather than first-degree child abuse.”

         In my opinion, it is not the result that the jury reached in this case that is a miscarriage of
justice, but rather the process by which the result was reached. In our system of criminal justice,
in which the right to a trial by jury is guaranteed by both the federal, US Const, AM 6 & 14, and
Michigan Constitution, Const 1963, art 1, §§ 14, 20, the jury and not judges decide the facts of
the case. It is the responsibility of the jury alone to determine the weight and credibility of all
testimony, including that of a defendant regarding his actions and intent. People v Wolfe, 440
Mich 508, 514-515; 489 NW2d 748 (1992), mod 441 Mich 1201 (1992). In this case, in refusing
to instruct on second-degree child abuse, the trial court determined that defendant’s testimony
was not credible in light of the other evidence. But defendant’s credibility was for the jury, not
the judge, to determine. And, while the majority may be correct in finding that it is more
probable than not that even if instructed regarding second-degree child abuse the jury would
have reached the same result, this conclusion is based on a judicial assessment of defendant’s
credibility and the strength of the other evidence.

        The Cornell Court opined that “the reliability of the verdict is undermined when the
evidence ‘clearly’ supports the lesser included instruction, but the instruction is not given.”
Cornell, 466 Mich at 365. “In other words, it is only when there is substantial evidence to
support the requested instruction that an appellate court should reverse the conviction.” Id. The
Court further noted that in applying this “substantial evidence” test, an appellate court must
consider the “entire cause,” as MCL 769.26 requires. Cornell, 466 Mich at 365-366. Also,
“more than an evidentiary dispute regarding the element that differentiates the lesser from the
greater offense is required to reverse a conviction.” Id. (Emphasis in original). But the Court
cautioned that “substantial evidence in support of one offense does not necessarily preclude there
also being substantial evidence in support of the other offense.” Id., n 20. "[T]here may be cases
where both the lesser and the greater offenses are supported by substantial evidence.” Id.

        In my view, the majority misapplies the “substantial evidence” test as explained in
Cornell by sanctioning a judicial assessment regarding the probability of outcomes on the basis
of the evidence at trial, including the judicial assessment of defendant’s credibility. Rather, in
this case, in reviewing the “entire cause,” MCL 769.26, I am compelled to conclude there was
the requisite substantial evidence supporting both first-degree and second-degree child abuse.
Cornell, 466 Mich at 366, n 20. The difference between the two offenses was whether defendant
acted intending to commit the harm inflicted or knew that such harm would occur. Maynor, 470
Mich at 291, 296. Defendant’s own testimony certainly supported his theory of the case;
consequently, I conclude it was error warranting reversal for the trial court to refuse to instruct
on second-degree child abuse where substantial evidence supported convicting on that offense if
the jury either believed defendant’s testimony or harbored reasonable doubt regarding his mental
state. Accordingly, I would reverse and remand for a new trial.

                                                               /s/ Jane E. Markey




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