                         STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  December 27, 2016
              Plaintiff-Appellee,

v                                                                 No. 332115
                                                                  Chippewa Circuit Court
DONALD NELSON II,                                                 LC No. 15-013895-AR

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                                 No. 332116
                                                                  Chippewa Circuit Court
MARY JOANNA PLIS,                                                 LC No. 15-013896-AR

              Defendant-Appellant.


Before: MARKEY, P.J., and MURPHY and KRAUSE, JJ.

MARKEY, P.J. (dissenting).

        I respectfully disagree with the majority because I will not substitute my judgment for
that of the magistrate. See People v Doss, 406 Mich 90, 101; 276 NW2d 9 (1979), citing People
v Dellabonda, 265 Mich 486, 491; 251 NW 594 (1933). I conclude that the record of the
preliminary examination in this case does not demonstrate that the magistrate clearly abused its
discretion, id., when it discharged defendants Donald Nelson II and Mary Joanna Plis from the
accusation of involuntary manslaughter, MCL 750.321, in connection with the death of Plis’s
2½-year-old son. I would therefore reverse the circuit court and affirm the district court.

       Throughout its history Michigan has had the same two basic requirements to hold an
accused for trial in the circuit court for an offense not cognizable in the district court. See
People v Yost, 468 Mich 122, 125-126; 659 NW2d 604 (2003) (“[T]he preliminary examination
has a dual function, i.e., to determine whether a felony was committed and whether there is
probable cause to believe the defendant committed it.”); Yaner v People, 34 Mich 286, 288-289
(1876) (“[I]t is only when it shall appear from such examination that an offense not cognizable

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by a justice of the peace has been committed, and that there is probable cause to believe the
prisoner guilty thereof, that he can be held for trial.”). The current iteration of the statute
concerning binding an accused over to circuit court expresses these two requirements in its first
sentence:

               If the magistrate determines at the conclusion of the preliminary
       examination that a felony has not been committed or that there is not probable
       cause for charging the defendant with committing a felony, the magistrate shall
       either discharge the defendant or reduce the charge to an offense that is not a
       felony. . . . [MCL 766.13.]

         Although it is often stated that the magistrate must find “probable cause” to believe that a
crime has occurred, see MCR 6.110(E) & (F), the statutory probable cause requirement relates to
whether there is reason to believe the accused has committed the crime the magistrate determines
has occurred. See People v Paille, 383 Mich 621, 628; 178 NW2d 465 (1970) (“The magistrate
was aware that in the light of our decisions, defendants should not be bound over for trial if the
people merely proved that there was ‘probable cause’ to believe that the crime . . . charged in the
warrant had been established.”); see also Doss, 406 Mich at 100-101, citing People v Asta, 337
Mich 590, 609-610; 60 NW2d 472 (1953), and People v Oster, 67 Mich App 490, 495; 241
NW2d 260 (1976). Still, at the preliminary examination, evidence sufficient to prove the
accused guilty beyond a reasonable doubt of the crime charged is not required for a bindover.
See Yost, 468 Mich at 126 (“At the examination, evidence from which at least an inference may
be drawn establishing the elements of the crime charged must be presented.”); Doss, 406 Mich at
100 (“The object of a preliminary examination is not to prove guilt or innocence beyond a
reasonable doubt, nor should a magistrate discharge a defendant when evidence conflicts or
raises reasonable doubt of his guilt; such questions should be left for the jury upon the trial.”);
Yaner, 34 Mich at 289 (The magistrate need not “nicely weigh evidence as a petit jury would, or
. . . discharge the accused where there is a conflict of evidence, or where there is a reasonable
doubt as to his guilt; all such questions should be left for the jury upon the trial.”).

        In this case, defendants were charged with involuntary manslaughter, MCL 750.321, an
offense found within Chapter XLV of Michigan’s Penal Code addressing homicide. Homicide is
one of four categories by which human deaths are classified, the others being natural, accidental,
and suicide. See Brown v People, 17 Mich 429, 433 (1868); People v Yost, 278 Mich App 341,
395; 749 NW2d 753 (2008). “Homicide is the killing of a human being by a human being. It
may, or may not, be felonious. If felonious, it is either murder or manslaughter, dependent upon
the facts and circumstances surrounding the killing.” People v Austin, 221 Mich 635, 644; 192
NW 590 (1923); see also People v Cambell, 124 Mich App 333, 338; 335 NW2d 27 (1983).
When a person is charged with a homicide, “it is both the right and the duty of the prosecution to
give evidence of all those surrounding facts and circumstances which have any bearing upon the
manner of the death, and any tendency to show whether it was natural, accidental, or
felonious[.]” Brown, 17 Mich at 433.

        A magistrate’s decision on whether there is sufficient evidence to determine that the
crime charged has been committed and probable cause to believe the accused committed the
charged crime is reviewed for a clear abuse of discretion. Doss, 406 Mich at 101. An abuse of
discretion occurs when a court makes a decision that “falls outside the range of reasonable and

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principled outcomes.” People v Waterstone, 296 Mich App 121, 131-132; 818 NW2d 432
(2012). When this Court reviews the magistrate’s decision, we accord no deference to the circuit
court’s decision regarding the magistrate’s bindover decision. People v Harlan, 258 Mich App
137, 145; 669 NW2d 872 (2003). This Court essentially sits in the same position as the circuit
court when determining whether the magistrate’s bindover decision was an abuse of discretion.
People v Hudson, 241 Mich App 268, 276; 615 NW2d 784 (2000). “The magistrate has the duty
to pass judgment on the credibility of witnesses as well as the weight and competency of the
evidence,” People v Crippen, 242 Mich App 278, 282; 617 NW2d 760 (2000), and the reviewing
court may not substitute its judgment for that of magistrate absent a clear abuse of discretion.
Doss, 406 Mich at 101; see also Yost, 468 Mich at 131-133 (holding that the magistrate abused
its discretion rejecting expert testimony and not binding the defendant over to circuit court).

        In this case, the magistrate dismissed the charges against both defendants after
concluding that there was insufficient evidence to find that a crime had been committed. On
appeal by the prosecutor, the circuit court disagreed, concluding that there was “ample evidence
to establish probable cause” that the child had died as the result of criminal activity, and also
probable cause to believe that defendants had committed the crime. Accordingly, the circuit
court ruled that the district court had abused its discretion by “ignoring the evidence,” and it
remanded the case to the district court for further proceedings.

       As noted already, at the preliminary examination, the prosecutor must present evidence
from which at least an inference may be drawn establishing each element of the crime charged.
Yost, 468 Mich at 126; Doss, 406 Mich 101. Thus, in People v Henderson, 282 Mich App 307,
312; 765 NW2d 619 (2009), the Court wrote concerning the preliminary examination:

                To establish that a crime has been committed, a prosecutor need not prove
       each element beyond a reasonable doubt, but must present some evidence of each
       element. Circumstantial evidence and reasonable inferences from the evidence
       can be sufficient. If the evidence conflicts or raises a reasonable doubt, the
       defendant should be bound over for trial, where the questions can be resolved by
       the trier of fact. [Citations omitted.]

        To prove a charge of involuntary manslaughter, MCL 750.321, the prosecution must
establish that the defendant acted “in a grossly negligent, wanton, or reckless manner, causing
the death of another.” People v Moseler, 202 Mich App 296, 298; 508 NW2d 192 (1993). This
requires a showing that (1) defendant knew of a situation that required the use of ordinary care
and diligence to avoid injuring someone, (2) defendant would have been able to avoid the harm
that resulted by using, and (3) defendant failed to use the ordinary care and diligence to avoid the
threatened harm when to the ordinary mind it must be apparent that the disastrous result would
be likely. People v Albers, 258 Mich App 578, 582; 672 NW2d 336 (2003).

        I conclude that the magistrate did not clearly abuse its discretion by dismissing the
charges against defendants. Even assuming that the prosecution’s theory that Ethan had died
from suffocation as the result of defendants’ conduct was correct, there was no evidence to
indicate that either defendant knew that wrapping a child in blankets on a soft couch could result
in the child’s death. Although it was the current practice of the Chippewa County CPS to teach
caregivers to put babies to sleep on their backs without blankets, pillows, or other soft items,

                                                -3-
testimony indicated that this “safe sleep” policy had been instituted within the last five years, and
applied only to children less than one year old. In this case, there was no evidence that either
defendant had received this information, and even if they had, it would not have applied to Plis’s
child, who was 2½ years old. Indeed, there is no evidence at all that Ethan’s death was anything
more than a tragic accident.

        Unlike the situation presented in Albers, which involved a parent who repeatedly allowed
a six-year-old child access to matches and cigarette lighters, id. at 581-582, the dangers of
blankets and soft couches are not something a parent should intuitively know, as demonstrated
by the fact that CPS finds it necessary to instruct against their use. Without such instruction, I
believe it would not be apparent to the ordinary mind that placing a blanket-wrapped 2½-year-
old child on a soft couch would “likely to prove disastrous[.]” Id. at 582. Because there was no
evidence that defendants knew or should have known that the manner in which they put the child
to sleep could have resulted in his death, the prosecution failed to establish that defendants acted
“in a grossly negligent, wanton, or reckless manner,” Moseler, 202 Mich App at 298, and the
magistrate did not clearly abuse its discretion by determining that the evidence was insufficient
to determine the crime of manslaughter occurred or in finding that probable cause did not exist to
believe that defendants committed that crime. Doss, 406 Mich at 101; Waterstone, 296 Mich
App at 131.

        Moreover, unlike the circumstances in Yost, 468 Mich at 129, where the prosecution’s
forensic pathologist testified that he “concluded that a crime, homicide, had taken place,” and the
magistrate abused its discretion by rejecting this testimony, id. at 129-130, 133, in this case, the
magistrate accepted the testimony of the prosecution’s expert witness, a forensic pathologist with
twenty-plus years of experience. Dr. David Start testified that, in his opinion, “the cause of death
was indeterminate or undetermined cause of death as was the manner of death.” Further, when
asked about the prosecution’s “swaddling” theory, Dr. Start could only say that it “may be a
factor in the death yes.” (Emphasis added). Finally, Dr. Start corroborated that positional
asphyxiation, which “safe sleep” programs are designed to prevent, was most common in
younger infants less than six months old and that such deaths of children two to three years old
“would be less common.” Again, this testimony does not support finding that defendants knew
or should have known their actions or inactions in this case would create a danger that is likely to
prove disastrous to another. Albers, 258 Mich App at 582. In my opinion, therefore, the record
supports the magistrate’s decision that there is insufficient evidence to determine that the crime
charged was committed. The prosecutor did not present evidence from which at least an
inference may be drawn establishing each element of the crime charged. Yost, 468 Mich at 126;
Doss, 406 Mich 101. I conclude that the magistrate most certainly did not clearly abuse its
discretion by finding that the evidence was insufficient to determine the crime of manslaughter
occurred or finding that probable cause was lacking to believe that defendants committed that
crime. Doss, 406 Mich at 101; Waterstone, 296 Mich App at 131.

       I would reverse the circuit court and affirm the district court’s order dismissing the
criminal charges against defendants.

                                                              /s/ Jane E. Markey



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