People of Michigan v. Samantha Renee Eubanks ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 10, 2020
Plaintiff-Appellant,
v No. 350344
Wayne Circuit Court
SAMANTHA RENEE EUBANKS, LC No. 18-000727-02-FH
Defendant-Appellee.
Before: STEPHENS, P.J., and SERVITTO and LETICA, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting defendant’s motion to quash the
information and dismissing eight counts of second-degree child abuse, MCL 750.136b(3), and two
counts of possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. On appeal, plaintiff argues the trial court abused its discretion by dismissing the second-
degree child abuse charges because this Court already determined there was probable cause to bind
over defendant for trial on those charges when we concluded there was probable cause to bind
over defendant on the felony-firearm charges. Plaintiff also argues the trial court abused its
discretion by concluding defendant did not commit an “act” for purposes of MCL 750.136b(3) by
allowing children to play unsupervised where loaded guns were kept unsecured. We affirm in part
and reverse in part, and remand for further proceedings consistent with this opinion.
I. FACTUAL BACKGROUND
This case arises from the shooting of two three-year-old children, KD and DG, by
defendant’s three-year-old son, CE. Defendant, the mother of six children, was operating an
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unlicensed family child care home.1 The parents of six other children paid defendant to watch and
care for their children.
At about 10:15 a.m., on Wednesday, September 27, 2017, while defendant’s four older
children were at school, defendant was engaged in a cell phone conversation. Defendant’s twin
three-year-old boys were upstairs playing unsupervised with KD and DG in defendant’s bedroom.
Inside the top drawer of a thirty-inch high dresser CE discovered a loaded .45 caliber Smith &
Wesson handgun. CE pulled the trigger and shot DG in the shoulder, fracturing his clavicle. The
bullet passed through DG and struck KD in the face, resulting in the loss of KD’s right eye and
necessitating facial reconstructive surgeries.
After the police arrived, they located the .45 caliber Smith & Wesson handgun on
defendant’s bedroom floor. It was jammed with a spent shell casing stuck in its slide. The police
also observed a loaded 9-millimeter Glock 19 handgun in the open top dresser drawer from which
CG had previously removed the Smith and Wesson. They secured the Glock by removing the
round in the chamber along with the magazine. Additionally, the police located two empty holsters
in defendant’s bedroom—one on the floor and one inside a Pack ’n Play. The dresser was the only
one in defendant’s bedroom and defendant later told the police that her husband used one of
dresser’s top drawers as a junk drawer. Defendant also later told the police KD napped in
defendant’s bed and another child in her care slept in the Pack ’n Play.
Inside defendant’s home, the police discovered four additional firearms. In the upstairs
closet, located just outside defendant’s bedroom, the police found a Savage bolt-action rifle and a
1
MCL 722.111(p)(iii) provides:
“Family child care home” means a private home in which 1 but fewer than 7 minor
children are received for care and supervision for compensation for periods of less
than 24 hours a day, unattended by a parent or legal guardian, except children
related to an adult member of the household by blood, marriage, or adoption.
Family child care home includes a home in which care is given to an unrelated
minor child for more than 4 weeks during a calendar year. A family child care
home does not include an individual providing babysitting services for another
individual. As used in this subparagraph, “providing babysitting services” means
caring for a child on behalf of the child’s parent or guardian if the annual
compensation for providing those services does not equal or exceed $600.00 or an
amount that would according to the internal revenue code of 1986 obligate the
child’s parent or guardian to provide a form 1099-MISC to the individual for
compensation paid during the calendar year for those services.
Below and on appeal, defendant contends that she was simply “babysitting for friends.” In
defendant’s police interview, she admits to caring for unrelated children, being
compensated for care, and planning on opening a daycare facility in the future.
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Thompson muzzle-loader rifle. The police also found a locked gun safe. Although several
handguns would have fit inside the safe, it contained a single Caltech 9-millimeter handgun.
Defendant had a key to the gun safe on her keychain; her codefendant husband, had the other key.
On the main floor, the police found a second Smith & Wesson revolver inside the linen closet.
This revolver was on a shelf that was five-feet, four inches off the ground, and, thus, outside the
reach of the younger children in the home. Nevertheless, the revolver was visible when the closet
was opened.
In defendant’s later police interview, defendant claimed she was terrified of guns, did not
like them, and tried “not to know where they” were. Defendant thought her husband had three
guns, not six. Defendant admitted that she recently overheard her husband tell her oldest child that
there was a single loaded gun inside the locked gun safe. Defendant acknowledged that not all
three of the guns she was aware of were in the safe.
Defendant also told the police that she had cautioned her husband regarding the guns
because CE was so curious about them and always tried to touch the gun when her husband carried
one. Defendant also cautioned CE about the weapon her husband carried, telling him it was for
bad guys.
Defendant was further aware that her husband had recently had one of his guns in his work
backpack. Although not one-hundred percent certain, defendant thought that perhaps her husband
had put the gun in the dresser drawer. According to defendant, her husband also knew that their
boys went into that drawer. Defendant was aware that, in the past, her husband had a gun in the
drawer. Defendant had warned her husband about CE and had reminded her husband that he had
said he would store the guns in the gun safe he had purchased for that purpose. Defendant
eventually agreed that she knew certain guns inside her home were unsecured, but she did not
know exactly where they were. In her written statement, defendant again admitted that she knew
that not all three of the guns, that she was aware of, were in the gun safe.
Defendant told the police that, if she had known that the guns were in the drawer, she would
not have let the boys play upstairs. Defendant simply would not have put the children “in danger
like that.”
II. LEGAL PROCEEDINGS
Plaintiff charged defendant with 12 counts of second-degree child abuse and two counts of
felony-firearm.2 At defendant’s preliminary examination, defendant opposed bindover on the
2
Regarding her own children, defendant was charged with “knowingly or intentionally committing
an act likely to cause serious physical harm to a child by maintaining a home environment without
ensuring that her child was protected from known hazards, to wit: loaded firearms accessible to
her child.” Regarding the daycare children, defendant was charged with “knowingly or
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child abuse charges, relying on People v Murphy, 321 Mich App 355; 910 NW2d 374 (2017). In
Murphy, this Court held that in order to convict a parent of second-degree child abuse involving
the parent’s commission of a reckless act requires a parent to “do something and do it recklessly.”
Id. at 361. Therefore, “[s]imply failing to take an action [did not] constitute an act.” Defense
counsel argued that here, defendant’s failure to act was not child abuse. The district court rejected
defendant’s argument and bound her over on eight counts of child abuse. The district court found
that defendant told the police that “she knew at some point in time [that] the gun was in that
drawer” and “she said . . . that her husband kept the guns in that drawer sometimes.” But the
district court dismissed the four counts of second-degree child abuse involving defendant’s older
children, who were not inside the home when the shooting occurred. The district court also
dismissed the two felony-firearm counts, concluding that defendant did not have actual or
constructive possession of the firearms that belonged to her husband. In particular, the district
court reasoned that it had no “evidence that the gun was accessible and available to [defendant]
when these crimes were committed.”
In the circuit court, plaintiff moved to reinstate the two dismissed felony-firearm charges.
The circuit court denied plaintiff’s motion and plaintiff sought leave to appeal with this Court.
During the time that plaintiff was attempting to restore the felony-firearm charges,
defendant moved to quash or reduce the remaining child abuse counts.3 Defendant argued that her
actions were not reckless because she had no knowledge that there was a loaded firearm in the
dresser, she thought or assumed that the guns were in the gun safe, and she committed no act which
was reckless. Defendant continued to rely on Murphy. In response, plaintiff argued that Murphy
was distinguishable. In this case, plaintiff asserted that the record was clear that defendant knew
two guns inside her home were unsafe and yet allowed the children in her care free rein therein
sans her supervision.
In May 2018, then Wayne County Circuit Court Judge Cynthia Gray Hathaway heard and
denied defendant’s motion to quash the child abuse charges. Judge Hathaway explained that the
evidence presented during the preliminary examination established that defendant knew there were
unsecured guns in her home, that defendant allowed multiple young children inside, and that
defendant allowed the children to play unsupervised, placing them in danger. Judge Hathaway
intentionally commit an act likely to cause serious physical harm to a child by agreeing to provide
daycare and accepting the child into her home without ensuring that the child was protected from
known hazards, to wit: loaded firearms accessible to children.”
Codefendant was charged with six counts of second-degree child abuse by “knowingly or
intentionally committing an act likely to cause serious physical harm to a child by leaving loaded
firearms accessible to his child.”
3
Defendant filed identical motions and memorandums of law on April 16 and May 1, 2018.
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determined that Murphy was distinguishable. Rather than this case being about defendant’s failure
to act, Judge Hathaway determined that it was about defendant’s actions. In sum, Judge Hathaway
decided that the magistrate had not abused his “discretion by binding this over with all of those
factors at play.” Finding no abuse of discretion, Judge Hathaway also declined to reduce the
charges. On May 18, 2018, the circuit court entered an order denying defendant’s motion to quash.
A few weeks later, this Court issued an order of preemptory reversal as to the felony-
firearm charges, concluding:
Circumstantial evidence, coupled with the reasonable inferences derived
therefrom, may support a bindover. People v Waterstone, 296 Mich App 121, 152;
818 NW2d 432 (2012). Record evidence established that defendant was aware that
her husband kept loaded handguns in the drawer of their bedroom dresser, which
was only 30 inches tall and accessible to their three-year-old son. Although
defendant may not have known that a specific firearm was in the drawer on the date
of the shooting, she was aware that her husband had several guns and knew he did
not keep all of them locked in the safe. Under the circumstances, a rational trier of
fact could find beyond a reasonable doubt that defendant constructively possessed
the firearm. People v LaFountain, 495 Mich 968; 844 NW2d 5 (2014). The trier
of fact is to decide what inferences may be appropriately drawn from the evidence
and the weight to be given to those inferences. People v Hardiman, 466 Mich 417,
428; 646 NW2d 158 (2002). The evidence thus was sufficient to create logical
inferences to show probable cause for a reasonable person to believe that firearm
felonies were committed and that defendant committed those felonies.
Accordingly, the district court abused its discretion in declining to bind over
defendant on the firearm charges. [People v Eubanks, unpublished order of the
Court of Appeals, entered June 8, 2018 (Docket No. 343714).]
On the same day that this Court issued this order, defendant filed an interlocutory
application for leave to appeal the circuit court’s denial of her motion to quash or reduce the child
abuse charges. Plaintiff opted not to respond.
Defendant also moved for reconsideration of this Court’s order pertaining to the felony-
firearm counts. Defendant argued that this Court misapprehended the evidence presented at
preliminary examination, more specifically, that this Court misconstrued defendant’s statements
during the police interview. This Court denied defendant’s motion for reconsideration. People v
Eubanks, unpublished order of the Court of Appeals, entered July 16, 2018 (Docket No. 343714).
On the same day, this Court also denied defendant’s amended application for leave to
appeal from the circuit court’s order denying her motion to reduce or quash the child abuse charges
for failing to persuade it of the need for immediate appellate review. People v Eubanks,
unpublished order of the Court of Appeals, entered July 16, 2018 (Docket No. 344193).
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Defendant filed applications for leave to appeal with our Supreme Court in both appeals.
Thereafter, in lieu of granting defendant’s application pertaining to the felony-firearm counts, our
Supreme Court vacated that part of this Court’s order that reversed the circuit court’s order, and
remanded for “reconsideration in light of People v Anderson, 501 Mich 175[; 912 NW2d 503]
(2018).” People v Eubanks, 503 Mich 893; 919 NW2d 286 (2018). In Anderson, our Supreme
Court held “that a magistrate’s duty at a preliminary examination is to consider all the evidence
presented, including the credibility of witnesses’ testimony, and to determine on that basis whether
there is probable cause to believe that the defendant committed a crime, i.e., whether the evidence
presented is ‘sufficient to cause a person of ordinary prudence and caution to be conscientiously
entertain a reasonable belief of the accused’s guilt.’ ” Id. at 178, quoting People v Yost, 468 Mich
122, 126; 659 NW2d 604 (2003) (quotation marks and citation omitted). However, our Supreme
Court denied defendant’s application for leave to appeal from the circuit court’s order denying
defendant’s motion to quash or reduce the child abuse charges against her because it was “not
persuaded that the question should be reviewed . . . .” Eubanks, 503 Mich at 893.
On remand, this Court once again considered plaintiff’s application for leave to appeal as
to the felony-firearm charges, and again reversed the circuit court’s decision to deny plaintiff’s
motion to reinstate them:
Pursuant to the Supreme Court’s order of November 16, 2018, this Court
has reconsidered the application in light of People v Anderson, 501 Mich 175; 912
NW2d 503 (2018). The Court again orders, pursuant to MCR 7.205(E)(2), that the
April 18, 2018 order of the Wayne Circuit Court denying the motion to reinstate
the two counts of felony firearm is REVERSED.
The magistrate found credible defendant’s statements that she was afraid of
guns and she did not know the gun was in the drawer on the shooting date. Under
Anderson, the magistrate properly could make that determination. Anderson, 501
Mich at 188 (ruling that, when reviewing that evidence, a magistrate has the duty
to pass judgment regarding witness’ credibility). However, the magistrate’s
ultimate ruling was not based on credibility, but instead was based on the
magistrate’s inference that the gun was not “accessible and available” to defendant
based on the facts of the case. Notwithstanding, record evidence established that
defendant was aware that her husband kept loaded handguns in the drawer of their
bedroom dresser, which was only 30 inches tall and therefore accessible to their
three-year-old son. Although defendant may not have known that the specific
firearm was in the drawer on the date of the shooting, the evidence was undisputed
that defendant was aware that her husband had several guns and knew he did not
keep all of his guns locked in the safe. The gun was accessible and available to
defendant’s son to use to shoot the other children. Therefore, an inference may be
drawn that the gun was accessible and available to defendant, who was with her son
in the home. The evidence thus supported logical inferences to show probable
cause for a reasonable person to believe that defendant committed firearm felonies.
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The trier of fact, not the magistrate, is to determine which inferences may be drawn
from the evidence. People v LaFountain, 495 Mich 968, 969; 844 NW2d 5 (2014).
The trier of fact also is to decide the weight to be given to those inferences. People
v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). Accordingly, the district
court abused its discretion in declining to bind over defendant on the firearm
charges and the circuit court should have reinstated the charges. The case is
REMANDED to the district court for further proceedings consistent with this order.
[People v Eubanks, unpublished order of the Court of Appeals, entered December
12, 2018 (Docket No. 343714).]
Defendant did not file an application for leave to appeal with our Supreme Court regarding
this Court’s order.
In the interim, Judge Michael Hathaway had taken over Judge Cynthia Gray Hathaway’s
docket. At that point, the parties were waiting for the Supreme Court’s ruling on plaintiff’s appeal
and they agreed to a bench trial.
In April 2019, consistent with this Court’s December 2018 remand order as to the felony-
firearm charges, the district court bound over defendant for trial on two counts of felony-firearm.
During that proceeding, defense counsel repeated her belief that this Court had made an inference
that was a mischaracterization of the evidence presented during the preliminary examination. The
district court reiterated that it had reviewed the videotape of defendant’s police interview and its
“memory of that was that [defendant] knew that at times [her husband] kept weapons in that dresser
drawer.”
Later, defendant was scheduled to be arraigned on the felony-firearm charges and waived
formal arraignment. During that proceeding, Judge Michael Hathaway requested a second
amended information.4 And, after the parties explained the appellate history of this case as it
related to the felony-firearm charges, Judge Hathaway asked for copies of the appellate courts’
orders, which he was informed had been provided to his clerk via email. Defense counsel further
indicated that she would file a motion to quash.
In June 2019, defendant filed her third motion to quash or reduce the charges. This motion
largely mirrored defendant’s earlier motions to quash or reduce the child abuse charges, but added
allegations that defendant did not have actual or constructive possession of the firearm as to the
felony-firearm charges. In particular, defendant argued that her statements during the police
interview had been misconstrued and were clear that she had no idea where the firearm was
located. Consequently, defendant asserted that she could not have constructively possessed the
4
No second amended information appears in the record below.
It was also mentioned that the codefendant had pleaded and was sentenced to two years’
probation.
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firearm. Despite these additional allegations in the motion to quash, defendant’s supporting
memorandum of law was identical to those previously filed. In other words, defendant’s
memorandum only addressed the child abuse charges and Murphy. Nowhere in the motion or
memorandum did defendant disclose that she had filed earlier motions to quash and reduce the
charges, that Judge Cynthia Gray Hathaway had denied defendant’s motion, or that this Court and
our Supreme Court had declined to review the circuit court’s denial order on interlocutory appeal.
On top of that, plaintiff never responded to defendant’s third motion to quash.
At the final pretrial conference, Judge Michael Hathaway granted defendant’s motion to
quash and dismissed the second-degree child abuse charges after determining that Murphy
controlled the outcome in this case because defendant did not commit an act. During the hearing,
Judge Hathaway mentioned that the magistrate had “rightly” dismissed the felony-firearm charges,
seemingly failing to recollect that defendant had waived formal arraignment on the felony-firearm
counts and that the appellate courts’ orders, including this Court’s order of peremptory reversal
regarding the felony-firearm charges had been provided to his clerk. Judge Hathaway then entered
an order dismissing five counts of child abuse.5
Plaintiff filed a motion for reconsideration, arguing that, under the law-of-the-case
doctrine, the trial court was obligated to conclude there was probable cause for the second-degree
child abuse charges on the basis of this Court’s earlier conclusion that there was sufficient evidence
to bindover the felony-firearm charges. In plaintiff’s motion for reconsideration, plaintiff never
mentioned defendant’s prior motions to quash or reduce the child abuse charges, Judge Cynthia
Gray Hathaway’s denial of defendant’s motion to quash or reduce the child abuse charges, or
defendant’s subsequent failed appellate challenge.
Judge Michael Hathaway scheduled oral argument on plaintiff’s motion so that he “could
figure out” what was “going on with this case” as plaintiff’s request for reconsideration had
“blind[]sided him with some information that [he] never knew about or had before.” During the
hearing, defendant’s attorney represented that she had spoken to this Court’s staff, who advised
that she had “the right to do the motion to quash and start the process over.” Judge Hathaway then
stated that he had reviewed the appellate history of this case, adding: “I had absolutely no idea that
any of that had gone on.” Judge Hathaway questioned plaintiff’s failure to respond to defendant’s
motion to quash or reduce the charges, noting that, at least, plaintiff should have mentioned the
law-of-the-case doctrine if it believed it applicable and plaintiff should have responded to the
court’s earlier statement that the magistrate had “rightly” dismissed the felony-firearm counts.
Judge Hathaway frankly admitted that, when he granted defendant’s motion to quash, he thought
he was only doing so as to the child abuse charges. Judge Hathaway further questioned how the
law-of-the-case doctrine could apply when this Court had never ruled upon the child abuse counts.
5
Defendant had been charged with eight counts of second-degree child abuse and two counts of
felony-firearm.
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Judge Hathaway also questioned why there were two different Court of Appeals’ numbers, but
plaintiff did not have an answer without reviewing the appellate order.6 Again noting that this
Court’s orders “never addressed the viability of the child abuse . . . cases,” Judge Hathaway denied
plaintiff’s motion for reconsideration and amended his earlier order to dismiss to include the
felony-firearm counts. At plaintiff’s request, pursuant to its discussion with this Court’s Clerk’s
Office, Judge Hathaway entered a nunc pro tunc order dismissing all charges against defendant,
including the felony-firearm counts.
This appeal followed.
III. DISCUSSION
A. LAW-OF-THE-CASE DOCTRINE
Plaintiff first argues the law-of-the-case doctrine required the trial court to conclude there
was probable cause with regard to the second-degree child abuse charges. Plaintiff’s argument
rests on the proposition that when this Court reversed the decision of the trial court denying
plaintiff’s motion to amend the information to add the felony-firearm charges, it implicitly
concluded there was probable cause to bind over defendant on the second-degree child abuse
charges. In other words, because this Court concluded there was probable cause that the crime of
felony-firearm was committed, it necessarily concluded there was probable cause that the
underlying charged felony (second-degree child abuse) was committed as well. Recognizing that
its argument logically applied to only two counts of second-degree child abuse, plaintiff
maintained that there was no factual difference as to the remaining child abuse counts, and,
therefore, they too should stand.
Initially, we note that “[f]or an issue to be preserved for appellate review, it must be raised,
addressed, and decided by the lower court.” People v Danto, 294 Mich App 596, 605; 822 NW2d
600 (2011) (quotation marks and citation omitted). In this case, plaintiff raised the issue in a
motion for reconsideration and the trial court addressed it. Consequently, this issue is preserved
for our review. Id. See generally People v Conner, 209 Mich App 419, 422; 531 NW2d 734
(1995).
We review de novo the issue of whether the law-of-the-case doctrine applies. See People
v Robinson (After Second Remand), 227 Mich App 28, 33-37; 575 NW2d 784 (1997) (appearing
6
As the record below contains no copy of defendant’s appellate filings in Docket No. 344193 and
the parties failed to mention any appellate proceedings pertaining to the child abuse charges, the
trial court’s confusion is somewhat understandable given its high-volume docket. Nevertheless,
the record contains Judge Cynthia Gray Hathaway’s order denying defendant’s motion to quash
the child abuse charges along with a transcript of that proceeding as well as the appellate courts’
subsequent orders.
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to review application of the law-of-the-case doctrine de novo); see also Duncan v Michigan, 300
Mich App 176, 188; 832 NW2d 761 (2013) (“Whether the law of the case doctrine applies is a
question of law that [this Court] review[s] de novo.”). The law of the case doctrine “bars
reconsideration of an issue [decided] by an equal or subordinate court during subsequent
proceedings in the same case.” People v Mitchell, 231 Mich App 335, 340; 586 NW2d 119 (1998).
“Under the law of the case doctrine, ‘if an appellate court has passed on a legal question and
remanded the case for further proceedings, the legal questions thus determined by the appellate
court will not be differently determined on a subsequent appeal in the same case where the facts
remain materially the same.’ ” Grievance Administrator v Lopatin, 462 Mich 235, 259-260; 612
NW2d 120 (2000), quoting CAF Investment Co v Saginaw Twp, 410 Mich 423, 454; 302 NW2d
164 (1981). “Law of the case applies . . . only to issues actually decided, either implicitly or
explicitly, in the prior appeal.” Id. at 260. However, “[p]articularly in criminal cases, the law of
the case doctrine is not inflexible and need not be applied if it will create an injustice.” Robinson
(Aft Second Rem), 227 Mich App at 33.
When plaintiff initially sought leave to appeal the trial court’s denial of its motion to amend
the information, it framed the issue as follows:
A defendant has constructive possession of a firearm when it can be inferred that
the defendant had knowledge of the firearm’s location and access to that location.
Here, defendant knew that the firearm was in the dresser drawer in her bedroom.
Did the trial court abuse its discretion when it denied the People’s motion to amend
the information?
The sole legal issue from plaintiff’s prior appeal was whether the trial court abused its discretion
in determining that there was no probable cause to conclude that defendant had constructive
possession of the firearms in her house. This Court agreed with plaintiff that the trial court abused
its discretion in denying plaintiff’s motion to reinstate the felony-firearm charges. Eubanks, unpub
order of the Court of Appeals, entered December 12, 2018 (Docket No. 343714). In doing so, this
Court’s recitation of the relevant facts was limited to the question of defendant’s constructive
possession of the firearm as was this Court’s dispositional ruling. Id. Therefore, this Court did
not explicitly decide whether probable cause existed regarding the child abuse charges. Id.
Plaintiff, however, argues that this Court implicitly found the existence of probable cause
regarding the child abuse charges. Plaintiff is correct that the law-of-the-case doctrine applies to
issues decided, either explicitly or implicitly. Lopatin, 462 Mich at 260. But when the Supreme
Court remanded this case to this Court to reconsider plaintiff’s application for leave to appeal
regarding the felony-firearm charges, the district court had already determined that there was
probable cause as to the second-degree child abuse charges. Moreover, the trial court had denied
defendant’s first attempt to have the child abuse charges dismissed, and this Court, as well as our
Supreme Court, had passed on reviewing defendant’s separate interlocutory challenge to that
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decision.7 Eubanks, unpublished order of the Court of Appeals, entered July 16, 2018 (Docket
No. 344193), lv den 503 Mich at 893. Therefore, in issuing our December 2018 order as to the
felony-firearm charges, this Court accepted the existence of probable cause for the underlying
felony charge of second-degree child abuse as a factual matter rather than rendering an implicit
legal decision on that question.8 Accordingly, under the circumstances presented in this criminal
case, we conclude that the circuit court correctly decided that the law-of-the-case doctrine did not
preclude later dismissal of the second-degree child abuse charges. See e.g., People v Garcia, 203
Mich App 420, 426; 513 NW2d 425 (1994).
B. SECOND-DEGREE CHILD ABUSE
Next, plaintiff argues the trial court erred when it granted defendant’s motion to quash the
second-degree child abuse charges because it incorrectly relied on Murphy. Plaintiff asserts that
the evidence presented at preliminary examination was sufficient to support the district court’s
bind over on second-degree child abuse charges, citing People v Head, 323 Mich App 526; 917
NW2d 752 (2018).
This Court reviews for an abuse of discretion a trial court’s decision on a motion to quash
the information. People v Zitka, 325 Mich App 38, 43; 922 NW2d 696 (2018). “An abuse of
discretion occurs when a decision falls outside the range of reasonable and principled
outcomes . . . .” Id. (quotation marks and citation omitted). And “[t]o the extent that a lower
7
We note that plaintiff has never contended that Judge Michael Hathaway did not have the
authority to set aside Judge Cynthia Gray Hathaway’s order denying defendant’s initial motions
to quash or reduce the child abuse charges. See MCR 2.613(B) (“A judgment or order may be set
aside or vacated, . . . only by the judge who entered the judgment or order, unless that judge is
absent or unable to act. If the judge who entered the judgment or order is absent or unable to act,
an order vacating or setting aside the judgment or order or staying proceedings under the judgment
or order may be entered by a judge otherwise empowered to rule in the matter.”). Indeed, from
Judge Michael Hathaway’s on-the-record comments, it appears that he was unaware of defendant’s
interlocutory application for leave to appeal Judge Cynthia Gray Hathaway’s order denying
defendant’s motion to quash or reduce the child abuse charges. Consequently, we offer no opinion
on the propriety of defendant filing a third motion to quash or reduce the charges without disclosing
that the prior judge had denied an earlier motion grounded on the same facts and identical
arguments.
8
Because neither this Court’s order nor the Supreme Court’s order expressed an opinion on the
merits in declining to review defendant’s interlocutory challenge to Judge Cynthia Gray
Hathaway’s denial of defendant’s initial motion to quash or reduce the second-degree child abuse
charges, the law-of-the-case doctrine does not apply as to those orders. Lopatin, 462 Mich at 260.
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court’s decision on a motion to quash the information is based on an interpretation of the law,
appellate review of the interpretation is de novo.” Id. at 44 (quotation marks and citation omitted).
Under MCL 750.136b(3), a person is guilty of second-degree child abuse under any of the
three listed circumstances:
(a) The person’s omission causes serious physical harm or serious mental harm to
a child or if the person’s reckless act causes serious physical harm or serious mental
harm to a child.
(b) The person knowingly or intentionally commits an act likely to cause serious
physical or mental harm to a child regardless of whether harm results.
(c) The person knowingly or intentionally commits an act that is cruel to a child
regardless of whether harm results. [MCL 750.136b(3).]
A child is an unemancipated person under 18. MCL 750.136b(1)(a). A person is “a child’s parent
or guardian or any other person who cares for, has custody of, or has authority over a child
regardless of the length of time that a child is cared for, in the custody of, or subject to the authority
of that person.” MCL 750.136b(1)(d). Serious physical harm is “any physical injury to a child
that seriously impairs the child’s health or physical well-being, including, but not limited
to, . . . a . . . bone fracture, [or] . . . internal injury . . . .”
The child-abuse statute also specifically defines an omission as “a willful failure to provide
food, clothing, or shelter necessary for a child’s welfare or willful abandonment of a child.” MCL
750.136b(1)(c).
In this case, although the prosecution charged defendant under MCL 750.136b(3)(b), the
parties and courts below repeatedly referred to defendant’s reckless acts, implicating MCL
750.136b(3)(a). In light of the magistrate’s ability to amend the charge at the conclusion of the
preliminary examination and the reliance below on cases addressing the commission of a reckless
act, we will consider this matter under MCL 750.136b(3)(a) as well. See MCL 766.13.
“MCL 750.136b(3)(b) requires evidence that a defendant’s act could probably result in
serious harm to the child, regardless of whether the harm actually occurs.” People v Nix, 301 Mich
App 195, 202; 836 NW2d 224 (2013). Second-degree child abuse is a general intent crime and
requires merely the intent to do an act, “but perhaps not the consequences of the act.” People v
Maynor, 256 Mich App 238, 242; 662 NW2d 468 (2003), aff’d 470 Mich 289 (2004).
“Generally, determining whether an act was reckless is a jury question.” Murphy, 321
Mich App at 360, citing People v Edwards, 206 Mich App 694, 696-697; 522 NW2d 727 (1994).
In Murphy, the defendant was charged with second-degree child abuse under MCL 750.136b(3)(a),
after her 11-month-old daughter ingested a morphine pill that was laying on the carpet and died.
321 Mich App at 357-358. The prosecutor argued defendant’s daughter “died because of her
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parents’ ‘reckless acts,’ which she contended consisted of ‘their inaction’ and their inability to
protect their child and provide a safe home environment.” Id. at 358. The defendant challenged
the sufficiency of the evidence of her conviction, and this Court vacated her conviction. Id. at 358-
359.
This Court held that “[t]o establish second-degree child abuse based on a reckless act, the
prosecution must prove (1) that the defendant was a parent or a guardian of the child or had care
or custody of or authority over the child, (2) that the defendant committed a reckless act, (3) that,
as a result, the child suffered serious physical harm, and (4) that the child was under 18 years old
at the time.” Id. at 360. This Court defined the term “act” as “ ‘1. Something done or performed,
esp. voluntarily; a deed,’ or ‘2. The process of doing or performing; an occurrence that results from
a person’s will being exerted on the external world[.]’ ” Id. at 361, quoting Black’s Law Dictionary
(10th ed.) (alteration in original). Thus, this Court held that “in order to constitute a ‘reckless act’
under the statute, the defendant must do something and do it recklessly.” Id. “Simply failing to
take an action [did] not constitute an act.” Id. Because the prosecutor failed to present any
evidence of an affirmative act by the defendant that led to her child’s death, and, instead, “directed
the jury to Murphy’s reckless inaction, i.e., her failure to clean her house to ensure that morphine
pills were not in [her child’s] reach,” the defendant’s conviction had to be vacated. Murphy, 321
Mich App at 361.
In Head, this Court once again addressed the question of whether there was sufficient
evidence to sustain the defendant’s conviction under MCL 750.136b(3)(a) (reckless act), when the
defendant’s stored an illegal, loaded, and unsecured shotgun in his accessible bedroom closet and
left his 10-year-old daughter and 9-year-old son unsupervised; the defendant’s daughter then
fatally shot her brother. Head, 323 Mich App at 530-531. This Court rejected the defendant’s
argument that Murphy required reversal of his second-degree child abuse conviction, holding:
Defendant committed reckless acts by storing a loaded, short-barreled shotgun in
his unlocked bedroom closet and then allowing his children to play in the room
while unsupervised. Contrary to defendant’s argument, the present case is nothing
like Murphy, in which this Court held that the prosecutor presented no evidence of
an affirmative act by the defendant that led to the child’s death but instead presented
evidence only of the defendant’s inaction, i.e., failing to clean her house to ensure
that morphine pills were not in reach of the child. Id. The key evidence here
consisted not only of defendant’s inaction but of his affirmative acts of storing a
loaded shotgun in an unlocked closet of defendant’s bedroom and allowing his
children to play in that bedroom while unsupervised. Moreover, defendant
knowingly and intentionally committed an act that was likely to cause serious
physical harm to a child because defendant stored a loaded, illegal, short-barreled
shotgun in a readily accessible location where he allowed his young children to play
while unsupervised. [Head, 323 Mich App at 536.]
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As to defendant’s own children, plaintiff charged defendant with “knowingly or
intentionally commit[ting] an act likely to cause serious physical harm to a child by maintaining a
home environment without ensuring that her child was protected from known hazards, to wit:
loaded firearms accessible to her child.” Regarding the daycare children, defendant was charged
with “knowingly or intentionally commit[ting] an act likely to cause serious physical harm to a
child by agreeing to provide daycare and accepting the child into her home without ensuring that
the child was protected from known hazards, to wit: loaded firearms accessible to children.” The
gravamen of these charges is defendant’s affirmative act (having children in her home) coupled
with her failure to act to ensure loaded guns were not accessible to them. This is no different than
the prosecution’s allegations in Murphy, permitting a child to play without cleaning and identifying
hazards, including the morphine pill.
But, in light of the magistrate’s ability to amend the charge at the conclusion of the
preliminary examination, MCL 766.13, and the parties’ and courts’ repeated discussion of whether
defendant committed a reckless act, we also consider whether bindover was warranted under MCL
750.136b(3)(a).
Defendant accepted six children under the age of four into her unlicensed home daycare
with knowledge that her husband kept unsecured, loaded weapons therein. Defendant knew that
only one loaded gun was secured in her husband’s gun safe. Defendant deliberately chose not to
know specifically where her husband had placed the remaining guns or ensure that the fully loaded,
unsecured weapons were inaccessible to her young charges and her own young children.
Defendant further admitted that she knew her husband had placed unsecured guns in their
bedroom’s dresser drawer, which was easily accessible to a toddler, on prior occasions.
Furthermore, defendant was aware that 3-year-old CE, who shot the other children, was fascinated
with guns. Defendant had warned her husband about CE’s interest in guns and warned her husband
that CE was able to access that particular dresser drawer—one that contained two fully-loaded,
unsecured handguns on the morning of the shooting. Moreover, defendant knew that CE was
upstairs in their bedroom with the other children without adult supervision at the time of the
shooting. This evidence demonstrates that defendant committed a reckless act that resulted in CE
shooting and wounding the two other children.
The facts here are more akin to Head, where this Court recognized the danger an accessible
loaded weapon poses to young children who are unsupervised by an adult. 323 Mich App at 533.
As in Head, defendant allowed the children to play in her room unsupervised while knowing that
her husband sometimes stored a loaded gun in the accessible dresser drawer. And while defendant
had not personally stored the guns in this manner as in Head, defendant consciously chose not to
ascertain that the guns were inaccessible when she allowed the children to play upstairs
unsupervised.
To the extent that defendant argues that she was not aware of the location of the firearm or
that she assumed her husband had safely stored the firearm, those arguments are unavailing
because the district court found that there was probable cause to support the finding that defendant
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“knew at times that the guns were in the door [sic drawer] in the upstairs bedroom or in [her
husband’s] backpack.” The circuit court did not find that the district court clearly erred in that
finding. Whether a factfinder will conclude that defendant was aware of the loaded unsecured
firearm beyond a reasonable doubt is a question for a future date.
Considering all of the evidence presented during the preliminary examination, two charges
of second-degree child abuse under MCL 750.136b(3)(a) (reckless act) were supported by a
preponderance of the evidence. Accordingly, the circuit court erred in granting defendant’s motion
to quash or reduce two second-degree child abuse charges and the accompanying felony-firearm
charges against defendant.9 The trial court properly dismissed the remaining six child-abuse
counts.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion.
We do not retain jurisdiction.
/s/ Cynthia Diane Stephens
/s/ Deborah A. Servitto
/s/ Anica Letica
9
To the extent that defendant argues that bindover on the felony-firearm counts was not supported,
this issue is not properly before us, and, in any event, on this question, we are bound by the law-
of-the-case doctrine.
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