                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 20, 2017
               Plaintiff-Appellant,

v                                                                  No. 330192
                                                                   Macomb Circuit Court
JOHNATHAN LAMONTE SAILS,                                           LC No. 2014-000550-FH

               Defendant-Appellee.


Before: FORT HOOD, P.J., and JANSEN and HOEKSTRA, JJ.

PER CURIAM.

        The prosecution appeals as of right the trial court’s opinion and order granting
defendant’s motion for reconsideration and motion to quash the information, and dismissing the
charge of one count of involuntary manslaughter, MCL 750.321. We reverse and remand for
further proceedings consistent with this opinion.

        This case arises from the drowning death of KeAir Swift in a swimming pool at East
Detroit High School. Defendant was a substitute teacher at East Detroit High School and was
the only teacher supervising the pool area when the incident occurred. Defendant was charged
with one count of involuntary manslaughter stemming from the incident. Defendant was bound
over to the trial court. The trial court initially denied defendant’s motion to quash the
information. However, after defendant filed a motion for reconsideration, the trial court quashed
the information and dismissed the charge. The prosecution contends that the trial court
improperly quashed the information and dismissed the case because sufficient evidence existed
for the district court to bind defendant over for trial on the involuntary manslaughter charge. We
agree.

        “ ‘[We review] for an abuse of discretion both a district court’s decision to bind a
defendant over for trial and a trial court’s decision on a motion to quash an information.’ ”
People v Waterstone, 296 Mich App 121, 131; 818 NW2d 432 (2012) (citation omitted).
Likewise, we review a trial court’s ruling on a motion for reconsideration for an abuse of
discretion. People v Perkins, 280 Mich App 244, 248; 760 NW2d 669 (2008), aff’d 482 Mich
1118 (2008). “An abuse of discretion occurs when the court chooses an outcome that falls
outside the range of reasonable and principled outcomes.” People v Unger, 278 Mich App 210,
217; 749 NW2d 272 (2008). “A trial court necessarily abuses its discretion when it makes an
error of law.” Waterstone, 296 Mich App at 132. However, “[t]o the extent that a lower court’s

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decision on a motion to quash the information is based on an interpretation of the law, appellate
review of the interpretation is de novo.” People v Miller, 288 Mich App 207, 209; 795 NW2d
156 (2010).

        “[T]he primary function of a preliminary examination ‘is to determine if a crime has been
committed and, if so, if there is probable cause to believe that the defendant committed it.’ ”
People v McGee, 258 Mich App 683, 696; 672 NW2d 191 (2003) (citation omitted). Probable
cause exists when the evidence presented is “sufficient to cause a person of ordinary prudence
and caution to conscientiously entertain a reasonable belief of the accused’s guilt.” People v
Yost, 468 Mich 122, 126; 659 NW2d 604 (2003) (quotation marks and citation omitted).
Probable cause is a lesser standard of proof than guilty beyond a reasonable doubt because
evidence that allows at least an inference to be drawn establishing the elements of the crime
charged is sufficient. Id. In other words, “[t]he prosecutor need not establish beyond a
reasonable doubt that a crime was committed. He need present only enough evidence on each
element of the charged offense to lead a person of ordinary prudence and caution to
conscientiously entertain a reasonable belief of [the defendant’s] guilt.” People v Perkins, 468
Mich 448, 452; 662 NW2d 727 (2003) (citation and quotation marks omitted; alteration in
original). If conflicting evidence is presented or a reasonable doubt is raised concerning the
defendant’s guilt, the defendant should be bound over for trial for the trier of fact to resolve those
questions. People v Redden, 290 Mich App 65, 84; 799 NW2d 184 (2010). “Thus, charges
should not be dismissed merely because the prosecutor has failed to convince the reviewing
tribunal that it would convict. That question should be reserved for the trier of fact.” Perkins,
468 Mich at 452.

        When charging a defendant with involuntary manslaughter, there are multiple theories
that are not mutually exclusive that may be appropriate under the circumstances. People v
Datema, 448 Mich 585, 595-596; 533 NW2d 272 (1995). In the present case, the prosecution
advanced a theory of gross negligence in failing to perform a legal duty.

       To support a bindover on involuntary manslaughter based on [the defendant’s]
       omission to perform a duty, the prosecutor [is] required to submit evidence
       indicating the existence of a legal duty, [the defendant’s] knowledge of the duty,
       that [the defendant] wilfully neglected or refused to perform said duty, that such
       failure was grossly negligent of human life, and that death was caused by [the
       defendant’s] failure to perform [his] duty. [People v Giddings, 169 Mich App
       631, 634-635; 426 NW2d 732 (1988).]

See also M Crim JI 16.13 (providing the elements for involuntary manslaughter for the failure to
perform a legal duty).

        The trial court granted defendant’s motion for reconsideration and motion to quash the
information and dismiss the case because it found that the prosecution failed to present sufficient
evidence to establish probable cause that defendant was the proximate cause of Swift’s death.
The trial court erred because the evidence establishes probable cause that defendant was grossly
negligent in his omission to perform a legal duty, and specifically, that defendant proximately
caused Swift’s death.


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        First, evidence was presented that defendant owed a legal duty to his students as their
teacher. Under common law, “[a] teacher owes a duty to exercise reasonable care over students
in his or her charge.” Cook v Bennett, 94 Mich App 93, 98; 288 NW2d 609 (1979). Defendant
concedes that he owed his students a duty of reasonable care. However, defendant disagrees that
he owed the students a legal duty as a swim instructor under the Michigan Administrative Code.
In relevant part, Mich Admin Code, R 325.2198(3)(e) provides that an instructor shall directly
supervise his physical education class and that he must not engage in “[a]ctivities that would
distract from the proper supervision of persons using the swimming pool or prevent immediate
attention to a person in distress.” The Michigan Public Pool Safety Guidelines for Schools, 2007
edition, clarifies that if a school staff member is instructing a physical education class involving
a swimming pool, that instructor must also possess a lifeguard certification unless a separate
lifeguard is also present. Michigan Public Pool Safety Guidelines for Schools, 2007 edition, pp
1-2. See also Rule 325.2198(3)(e). Additionally, if the swim instructor assumes the role of both
instructor and lifeguard, he “must be watching all the students at the same time, which translates
to having the students do the same activities throughout class or practice.” Michigan Public Pool
Safety Guidelines for Schools, 2007 edition, p 2.

        Contrary to defendant’s contention, he was acting in the capacity of a swim instructor at
the time of the incident. Defendant was informed that he could not teach the swim class because
he was a substitute teacher, but he chose to disregard that warning and teach the swim class.
Defendant argues on appeal that James Reed was the individual who had the legal duty to act as
the swim instructor because he was hired as the full-time physical education teacher. Defendant
further points out that Reed was supervising the gym area at the time of the incident. It is
irrelevant that Reed was hired as the full-time physical education and health teacher and that he
left the swimming pool area on the day of the incident. The facts presented established
defendant was still in charge of the swim class and had been for at least three weeks. Defendant
chose to act in the capacity of a swim instructor without the proper certification. Had defendant
undergone the proper training to supervise and instruct the swim class, he would have known
that he was required to watch all of the students at the same time if a separate lifeguard was not
present. Thus, defendant owed his students a duty to exercise reasonable care and a duty under
the administrative code because he undertook the role of swim instructor on his own volition.

        Second, evidence was presented that defendant knew of the facts that gave rise to his
duties to exercise reasonable care over his students and to possess the necessary certification and
training as a swim instructor. The principal’s secretary, Sharon Oliver, testified that when
defendant was hired on September 30, 2013, as a temporary long-term substitute teacher, he was
explicitly informed that his role was limited to that of a substitute teacher and, as such, he was
not allowed to teach the swim portion of the physical education and health class. In fact, Oliver
stated that defendant was never issued a key to the pool. Shortly before the incident, when
Oliver found out that defendant had been teaching the swim class, she told him “two or three
times” to always be with Reed. This implies that (1) defendant knew he was in the supervisory
role of a teacher, and (2) defendant was keenly aware that he was not granted permission to
instruct the swim class because it may pose a risk to the students.

       Third, evidence was presented that established defendant willfully neglected or refused to
perform his duty of adequately supervising his students, i.e., providing reasonable care in his role


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as a teacher, and obtain the necessary certification to render adequate assistance in the event of
an emergency, which was grossly negligent to human life. Willful neglect or gross negligence

       requires evidence that [a defendant] had knowledge of the danger [his] failure to
       act would cause the child, the ability to avoid the harm, and that [he] failed to use
       care and diligence to prevent the danger when, to the ordinary mind, it must have
       been apparent that the result was likely to cause harm to the child. [Giddings, 169
       Mich App at 635.]

See also M Crim JI 16.18. Generally, a violation of a rule, by itself, does not amount to gross
negligence as courts must look to a defendant’s actions under the totality of the circumstances,
which may rise to the level of gross negligence and is a question of a fact ordinarily left for the
jury to decide. People v McCoy, 223 Mich App 500, 504; 566 NW2d 667 (1997).

        The prosecution presented evidence establishing probable cause that defendant knew of
the danger that his failure to act could cause and had the ability to avoid the harm. Defendant
knew that teaching a swim class was a dangerous activity that required him to exercise ordinary
care to avoid the risk of injury to any of his students. Oliver stressed the importance of
defendant never being alone while instructing the swim class. Additionally, the athletic director
and two physical education teachers asked defendant on two occasions if he had his lifeguard
certification, to which defendant replied, “Yes, I got this,” and “[Y]es I have it.” This implies
that defendant knew he was placed in a situation that required ordinary care to avoid injury to
those under his care. Defendant could have avoided the ultimate death of Swift by using
ordinary care in properly supervising his classroom and implementing control in the classroom,
rather than letting the students roam free. Likewise, defendant could have avoided the harm to
Swift if he had undergone the proper training and certification to adequately render immediate
assistance to Swift. Evidence was presented that defendant never received a lifeguard
certification despite defendant’s multiple statements that he had obtained the proper certification
through the American Red Cross.

        Furthermore, defendant failed to use care and diligence to prevent the danger when, to the
ordinary mind, it would have been apparent that the result was likely to cause harm to the child.
At the time of the incident, defendant was not in close proximity to the pool. He was in the
bleachers with his back turned to the students in the pool who were swimming, which is contrary
to the requirements of the code and guidelines. When several students alerted defendant that
Swift was drowning, defendant leisurely walked down the stairs claiming that the students were
“just playing.” When defendant finally made it to the pool deck, he stood there for a moment
before turning around and heading into the locker room for an unidentified amount of time.
Defendant walked out of the locker room, removed his shirt, and “belly flopped” into the water.
According to one student, defendant only went under the water once for about three seconds, but
according to another student, defendant went under at least two or three times. However, all
three students consistently testified at the preliminary examination that defendant claimed that
the water was “too deep.” Additionally, one student testified to hearing defendant say he could
not swim.

       A reasonable person under the circumstances would have adequately supervised the
students by watching all of the students at the same time—especially those students in the

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swimming pool—and appreciated the risk of potential harm by refusing to teach the swim class
until he or she had obtained the proper certification required by the state. Defendant made the
conscious decision, regardless of whether he was directed by another teacher to teach the class,
to exceed the scope of his position as a substitute teacher, and to supervise and instruct the
students despite knowing that he was not properly certified to instruct the students. Thus, when
viewed in the totality of the circumstances, sufficient evidence was presented to establish that
defendant willfully acted with disregard to the results that may follow his failure to adequately
supervise the students and obtain the proper certification.

        Finally, evidence was presented that established Swift’s death was caused by defendant’s
failure to provide reasonable care over the students and obtain the necessary certification in order
to instruct a swim class alone.

       [I]n the criminal law context, the term cause has acquired a unique, technical
       meaning. Specifically, the term and concept have two parts: factual causation and
       proximate causation. Factual causation exists if a finder of fact determines that
       “but for” defendant’s conduct the result would not have occurred. A finding of
       factual causation alone, however, is not sufficient to hold an individual criminally
       responsible. The prosecution must also establish that the defendant’s conduct was
       a proximate cause of, in this case, the accident or the victim’s death. [People v
       Feezel, 486 Mich 184, 194-195; 783 NW2d 67 (2010) (opinion by CAVANAGH, J.)
       (quotation marks and citations omitted).]

“Proximate causation is a legal construct designed to prevent criminal liability from attaching
when the result of the defendant’s conduct is viewed as too remote or unnatural.” Id. at 195
(quotation marks and citation omitted). “The phrase ‘the proximate cause’ is a legal
colloquialism reflecting the reality that, particularly in homicide cases, there is almost invariably
only one culpable act that could be considered a direct cause,” but the “phrase does not imply
that a defendant is responsible for harm only when his act is the sole antecedent.” People v Tims,
449 Mich 83, 96; 534 NW2d 675 (1995) (second and third emphasis added).

       We conclude that the prosecution established probable cause that, but for defendant’s
conduct, Swift’s death would not have occurred. Under proper supervision, defendant would
have coordinated the swim class and advised Swift not to jump into the deep end of the pool.
Even if Swift did jump into the pool, defendant could have saved him utilizing the pool’s safety
equipment. Accordingly, we conclude that the prosecution presented sufficient evidence
regarding factual causation.

       The trial court believed the ultimate issue was whether defendant was the proximate
cause of Swift’s death. In resolving the issue, the trial court relied on Beals v Michigan, 497
Mich 363; 871 NW2d 5 (2015), ultimately finding the holding in Beals instructive in this case
despite the fact that Beals dealt with proximate cause in a civil case involving a governmental
employee. In Beals, the decedent, who had been swimming independently for years and who
was known as an “accomplished swimmer,” drowned while the defendant, a certified lifeguard,
was on duty. Id. at 366-367. In relevant part, the decedent’s mother brought an action for gross
negligence against the lifeguard for failing to act. Id. at 367-368. The Beals Court ultimately
held that the lifeguard’s failure to intervene in the decedent’s drowning was not “the one most

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immediate, efficient, and direct cause” of the decedent’s death. Id. at 373. The Beals Court
reasoned that the lifeguard did not cause the decedent to enter the pool and swim to the deep end,
nor did the lifeguard cause the decedent to remain submerged in the water. Id.

        The trial court erred by relying on Beals for several reasons. First, the test for proximate
cause in Beals differs from the test for proximate cause in this case. Namely, in a criminal case,
the proper test is whether the defendant’s conduct was “a” proximate cause of the victim’s death.
See Tims, 449 Mich at 96-97. In contrast, in Beals, our Supreme Court was interpreting the
phrase “the proximate cause,” which appears in the relevant statute governing tort liability for
the gross negligence of a governmental employee. Beals, 497 Mich at 372. In order to establish
that the defendant was “the” proximate cause, the plaintiff was required to establish that the
defendant’s grossly negligent conduct was “the one most immediate, efficient, and direct cause”
of the injury. Id. at 371 (citation and quotation marks omitted). Such a requirement does not
exist in this case. Moreover, Beals is factually distinguishable from the present case. Unlike the
decedent in Beals, there was no evidence presented that Swift was an accomplished swimmer.
Quite the contrary, as evidence was presented that Swift did not know how to swim. It can be
inferred that as Swift’s swim instructor, defendant should have been privy to this information
and, as such, supervised the students who could not swim more closely. Likewise, unlike the
lifeguard in Beals who possessed a lifeguard certification, defendant did not. See id. at 367.
Additionally, the lifeguard in Beals reacted immediately once he was alerted the decedent was
drowning, whereas defendant did not. See id.

        The trial court improperly chose to focus on defendant’s “brief hesitation” before
attempting to save Swift in resolving the proximate cause issue, but the facts established much
more than that. Evidence was presented that defendant’s cumulative omissions were “a” direct
cause in Swift’s death. It was foreseeable that defendant’s failure to properly instruct and test
the students on their swimming ability would result in injury when students were required to
swim every day. This foreseeability of injury was heightened when defendant would regularly
allow the students to do whatever they pleased, such as the students “[d]iving off the diving
board, students throwing the knee boards, using the shepherds hook to trip people, [and] people
being in the locker rooms.” Additionally, on the day in question, it was foreseeable that a
student in the pool or around the pool would be injured when defendant had his back toward the
pool making him oblivious to what the students were doing, and that defendant would be unable
to save a student in peril when he could not swim himself.

        While it could be argued that Swift was also negligent in jumping into the pool knowing
that he could not swim, a victim’s negligence is only a factor to consider in evaluating a
defendant’s actions, but it is not a defense. See Tims, 449 Mich at 97-99. Thus, the district court
did not abuse its discretion by binding defendant over for trial. Sufficient evidence, and
inferences arising therefrom, was presented that defendant was grossly negligent in his failure to
supervise and provide immediate assistance to a child under his care. Accordingly, the trial court
abused its discretion by quashing the information and dismissing the case. The prosecution is
entitled to the reinstatement of the sole charge of involuntary manslaughter against defendant.




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        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.


                                                         /s/ Karen M. Fort Hood
                                                         /s/ Kathleen Jansen
                                                         /s/ Joel P. Hoekstra




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