DocketNumber： 329449
Filed Date： 4/27/2017
Status： Non-Precedential
Modified Date： 5/1/2017
STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED April 27, 2017 Plaintiff-Appellee, v No. 329448 Wayne Circuit Court CLIFFORD DANIEL THOMAS, LC No. 15-001020-01-FC Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v No. 329449 Wayne Circuit Court JASMINE GORDON, LC No. 15-001020-02-FC Defendant-Appellant. Before: O’CONNELL, P.J., and GLEICHER and BOONSTRA, JJ. PER CURIAM. Defendants Jasmine Gordon and Clifford Daniel Thomas jointly stood trial for the death of three-year-old Jamila Smith. The prosecution attributed Jamila’s death to child abuse. Separate juries convicted Gordon of first-degree child abuse and involuntary manslaughter, and Thomas of involuntary manslaughter and assaulting, resisting or obstructing a police officer. In these consolidated appeals defendants raise several challenges to their convictions, and Thomas additionally challenges his involuntary manslaughter sentence. Thomas’s claims lack merit, and in Docket No. 329448, we affirm Thomas’s convictions and sentences. Gordon, on the other hand, raises a valid constitutional challenge to the performance of her trial counsel. Counsel abandoned a viable defense strategy supported by expert testimony. Thomas’s jury heard this evidence and acquitted him of the child abuse charge. Gordon’s attorney fabricated a causation theory and presented no evidence to support his personal hypothesis. As a result, Gordon had no defense at all. In Docket No. 329449, we vacate Gordon’s convictions and sentences and remand for a new trial. -1- I. BACKGROUND A. JAMILA’S MEDICAL HISTORY Jamila’s cause of death formed the central contested issue in the joint trials. The prosecution asserted that the immediate cause was bilateral bronchial pneumonia, and that the pneumonia resulted from an infection (sepsis) triggered by a laceration of her pancreas. Thomas inflicted the pancreatic laceration, the prosecution argued, and Gordon aided and abetted Thomas by turning a blind eye to indications that he was physically abusing the child. The defense contended that Jamila died a natural death due to pneumonia and that the incidental pancreatic laceration did not contribute to her demise. Jamila’s unusual medical history supplied the backdrop for these competing claims. Jamila weighed just over eight pounds at birth and appeared to be a normal newborn. But at 22 months of age she could not talk, walk, or stand without support. Her height, weight and head circumference were well below normal limits. Physicians at Children’s Hospital of Michigan (CHM) labeled her as “failure to thrive.” Further evaluation revealed that she had a brain malformation of the frontal lobes resulting in a 30% loss of brain matter. Children with this disorder have delayed motor and language development and are intellectually disabled. Gordon and Smith were provided with nutritional counseling and encouraged to enroll Jamila in the Early On program, which offers special education programming for very young children. Jamila’s medical history included two additional diagnoses that became significant during the trial. At five months of age, Jamila had been treated for nummular eczema, which manifests with coin-shaped lesions on the skin that can itch and crust over. Two months before her death, Jamila contracted hand, foot and mouth disease, a viral illness featuring a rash. Whether the lesions on Jamila’s body were bruises or a rash was a subject of disagreement after her death. Gordon and Smith separated in March 2014. Jamila and her older brother remained with Gordon. Several months later, Gordon and Thomas began living together. Gordon was the breadwinner of this new family unit. While Gordon worked, her sister and father sometimes cared for her children. At other times, Thomas was in charge. Over time, Thomas became Jamila’s regular caregiver. In August 2014, Gordon took Jamila to CHM after Smith expressed concern about a bruise on Jamila’s left inner thigh. A doctor measured the bruise at four by five centimeters, and noted the presence of a rash in the same area. A report of suspected child abuse was made to Child Protective Services (CPS). When CPS came to Gordon’s home to investigate, Gordon neglected to mention that Thomas provided care for her children. CPS did not substantiate the child abuse report. One month later, Jamila was dead. And after calling Gordon about the bruise, Smith never saw his daughter again. B. THE DAY OF JAMILA’S DEATH During the afternoon of September 18, 2014, Thomas drove Gordon to work. Gordon testified that she called home several times that afternoon and evening to check on the children, and Thomas reassured her that all was well. At approximately 9:00 p.m., Thomas called Gordon -2- and told her to “come outside” as he had arrived with her car and the children, and something was wrong with Jamila. Gordon quickly ascertained that Jamila was not breathing. She “hopped” into the back seat and started CPR. Thomas claimed that Jamila had been well throughout that day. He recounted that after taking Gordon to work, he and the children went to a park. Jamila fell while they were there, but he believed nothing was wrong with her. Later, Thomas fed Jamila and she vomited. Thomas described that when he and the children set out to retrieve Gordon from work, Jamila walked to the car under her own power. As they were driving on the freeway, Jamila’s older brother told Thomas that Jamila had stopped breathing or was “playing sleeping.” Thomas claimed that he began driving with one hand and administering CPR with the other, reaching into the backseat to do so. When they arrived at Henry Ford Hospital, Thomas pulled into a back parking lot instead of the emergency room entrance. Jessica Vollstaedt, an emergency medical technician, was making her way to the back of the hospital when she heard yelling and screaming that a child was not breathing. She responded, determined that Jamila had no pulse, and started CPR. Neither Vollsteadt nor the code team could revive Jamila. Vollsteadt recalled that Jamila had “an abrasion to her forehead and several bruises throughout her body.” She wore only a diaper. The police were summoned after hospital personnel observed bruising on Jamila’s body and a wound on her forehead.1 When asked where they lived, Thomas offered an incorrect address on Webb in Detroit. The police found only an abandoned house. Thomas eventually admitted that he lived on Rockdale; when the police went to the home they found a bucket containing water and vomit near the bedrooms. C. THE WEEKS BEFORE JAMILA’S DEATH Thomas and Gordon were separately interrogated within hours of Jamila’s death. Gordon submitted to a second interview several months later while in custody. All three lengthy interrogations were played for the jury. Thomas reported that during the last two weeks of Jamila’s life, he cared for her “every other day.” He claimed that about a week and a half earlier, Jamila had hit her head on a doorknob, door edge, or some other part of a door; the exact mechanism changed several times during the interrogation. He put ice and witch hazel on the head bump and administered Benadryl and Pedialyte for her subsequent vomiting. The head injury swelled to the size of a golf ball. “Ever since she hit her head she’s been going down,” Thomas admitted. Jamila did not want to eat and vomited. Thomas further conceded that he made a “bad judgment call” in not taking Jamila to the hospital. He agreed that it was his “responsibility to see that they were cared for during the times” that he had the children. 1 A large, open head wound is readily visible in the autopsy photographs. Two smaller head wounds are also visible. -3- Gordon claimed that that she did not take Jamila to the hospital after first seeing the head wound because she was “impaired” when she came home from work that evening due to her ingestion of wine and marijuana. Thomas told her that Jamila ran into the wall or the door while being chased by her brother. Gordon had no explanation for why she did not take Jamila to a doctor the next day, when she was no longer impaired. Instead, Gordon treated Jamila’s head bump with cocoa butter and witch hazel and believed that the witch hazel caused the bump to scab and bleed. Two days after hitting her head, Jamila’s stomach bloated. Two or three days before her death, the child started vomiting. Gordon volunteered that she planned to take Jamila to the doctor “on my day off,” as she thought the child had only a stomach virus. She described that Jamila “would lay down. She wouldn’t sleep and she had a fever and her bowel movements was a little irregular as well.” Gordon insisted during her interviews that Jamila had rashes, not bruises. She stressed that Jamila suffered from eczema and had recently been treated for hand, foot and mouth disease. At the trial, however, she expressed that she had changed her mind, and believed the marks to be bruises. She blamed Thomas for what happened, asserting that she went to work every day, regularly called to check on her children, and did not know about the pancreatic injury until after the autopsy. D. THE MEDICAL TESTIMONY Dr. Kilak Kesha, a forensic pathologist employed by the Wayne County Medical Examiner’s Office, performed an autopsy on Jamila. He found 18 to 23 abrasions (“scrapes”) on her face, back, left thigh and right arm. Dr. Kesha attributed all of the abrasions to blunt force trauma. He also observed 10 to 15 contusions (bruises) on the child’s chest and abdomen, and 12 contusions on her thighs and forearms. The abrasions, too, were caused by “a blunt object.” The bruises were of “varying ages,” Dr. Kesha explained, “from weeks before death until death.” Most notably, Dr. Kesha discovered a one-half inch tear or laceration of Jamila’s pancreas and fresh blood in her abdominal cavity. The pancreatic laceration had occurred about one week prior to death, he opined. Dr. Kesha described the mechanics of this injury as follows: A laceration of the pancreas is extremely rare. It usually occurs when a blunt object or force is applied to the front of the abdomen and the back is supported by either [sic] like a throw to the wall. The reason for this is the pancreas is a long organ that crosses the midline of the back. When there’s pressure from the front the pancreas rubs up against the spine. The spine is a bone, it’s hard and this causes the pancreas to split into two. A child cannot tear her pancreas by playing or falling; this injury requires “significant” force, Dr. Kesha insisted. “It’s rarely seen,” he indicated, other than in car accidents where “a child is unrestrained and the vehicle is travelling at a high rate of speed.” A child with a pancreatic injury would appear ill, have abnormal bowel movements or urination, pain, drowsiness, lethargy, vomiting or a desire to be held all the time. The child’s illness would have been obvious to a caretaker, he concluded. -4- Evidence of bleeding was also discovered in Jamila’s mesentery, which is the “fat in the abdomen.” According to Dr. Kesha, “blunt trauma to the abdomen” caused this bleeding, as the mesentery is “very close” to the pancreas. One blow could have caused both areas to bleed, but there was also a second, fresh area of hemorrhage in the mesentery, which means that there were “[m]ultiple blows.” Dr. Kesha conceded that the newer bleeding alternatively could have occurred during “play,” as the pancreas was already injured; he admitted that he did not know how much pressure would be required to reinjure a lacerated pancreas. The first injury to Jamila’s pancreas initiated the infection that led to her death, in his view. Dr. Kesha found additional bleeding between Jamila’s scalp and skull bones caused by blunt trauma to the head. The magnitude of the hemorrhage was inconsistent with a fall. A knee, foot, fist, piece of wood or bat could have caused her head injuries, which appeared to be about a week old. He conceded that the head injuries did not cause Jamila’s death, nor did the bruising or the abrasions. The bruising on her abdomen may have been related to the pancreatic laceration, however. The pancreatic laceration “was [the] initiating factor” that triggered “the cascade that led to . . . death.” Dr. Kesha posited that after Jamila’s pancreas was lacerated, she developed sepsis (“an infection in her blood”), and “[t]here was also necrosis or death of her bowel or large colon and she had pneumonia. So the lacerated pancreas caused the sepsis, which caused the pneumonia, which killed the decedent.” Jamila could have developed pneumonia absent the pancreatic laceration, but Dr. Kesha had no reason to think that she would have. Jamila’s multiple injuries demonstrated that she was the victim of child abuse, in Dr. Kesha’s estimation. He ruled her death a homicide. Dr. Kesha denied that the abrasions or bruises he delineated were rashes, and he saw no evidence of eczema. He admitted that when he first examined Jamila’s brain, he did not appreciate that it was malformed. Only after reading Jamila’s medical record and examining the autopsy photographs did Dr. Kesha realize that there were “developmental issues.” Those issues did not impact Jamila’s pancreatic function or the cause of her death, he stated. Dr. Ljuvisa Dragovic, the chief forensic pathologist and chief medical examiner for Oakland County, testified only on Thomas’s behalf. He stated that Gordon’s attorney, John McWilliams, had retained him to review Jamila’s medical records and Dr. Kesha’s autopsy report. Like Dr. Kesha, Dr. Dragovic concluded that bronchial pneumonia caused Jamila’s death. His opinion departed from Dr. Kesha’s in several important ways, however. In Dr. Dragovic’s view, Jamila did not have sepsis. Rather, she “had bronchial pneumonia and that’s it, so there is no sense to conclude that the child died of sepsis.” Dragovic conceded that Jamila “might have sustained blunt force trauma in some point in time to her belly,” but she died of pneumonia, and not from the pancreatic laceration. Dr. Dragovic expressed strong disagreement with Dr. Kesha’s opinion that the pancreatic laceration led to the pneumonia, terming it “a quantum leap.” If Jamila truly had sepsis, Dragovic opined, she would not have been able to walk or run around, and may have been unconscious. Further, Dr. Dragovic disagreed that the pancreatic injury was inflicted by a blunt object such as a fist. In his view, the source had to have been a smaller, “very focused” object such as a stick, a broomstick, or a tricycle handlebar. Had it been a fist, neighboring anatomical structures, -5- such as the liver, also would have sustained injury. Jamila could “have been pushed against something by someone or ran into something . . . that is being held or some exposing type of profile or structure, it’s hard enough to render this type of injury.” While Jamila could not have injured her own pancreas, another child could have done it during play or a confrontation. Alternatively, she may have run into something while being chased by someone. He emphasized that had he performed the autopsy, he would not have called Jamila a victim of child abuse. Dr. Dragovic also took issue with Dr. Kesha’s determination that all of the marks on Jamila’s body represented bruising or trauma. If a pathologist wants “to be sure about the nature of the lesion you have to take a microscopic section, that’s the main tool in any pathologist’s evaluation, tissue sample.” Dr. Kesha did not create any microscopic slides of the bruises. Although Dr. Dragovic’s testimony on this point is somewhat unclear, he suggested that Jamila’s skin conditions could account for some of the marks found at autopsy: Q. What is your opinion as to the scars or discolorations throughout her abdomen or chest area? A. The discolorations that we refer to in medicine is a hyperpigmentation in heavily pigmented areas of the skin are actually healed drier diseases or conditions of the skin or injuries of the skin. So the scar is something that occurs up for healing. . . . So those are the categories that are attributable to the appearance of the body of the deceased daughter. Dr. Dragovic conceded that one of the “lesions” on Jamila’s abdomen “overlies” the general area where the head of the pancreas meets the body of the pancreas. He explained that he could not call it a “bruise:” “This particular lesion, and I have to call it lesion because that’s what it is, it’s a change in the skin. I cannot know exactly how it was generated because clearly there was some pressure, something that allowed the blood vessels to break down and create this bruise appearance.” Although the lesion was consistent with someone doing CPR compressions in that area, the pancreatic laceration beneath it was not “fresh.” A small amount of bleeding near the pancreas may have been the result of the resuscitative efforts. The prosecutor cross-examined Dr. Dragovic extensively regarding other cases in which he had testified against the Wayne County medical examiner’s office, and brought out that he had been turned down for the position of Wayne County Medical Examiner many years earlier. Dr. Dragovic was combative, as was the prosecutor. E. THE REMAINING EVIDENCE, AND THE VERDICTS Gordon’s sister, Lakisha Thaxton, testified that she and Gordon’s father frequently babysat for Jamila before Gordon became involved with Thomas. Thaxton recalled that Jamila had rashes on her body at various times. She last saw Jamila a week or two before the child’s death, and recounted that the child had “rashes or bumps” on her legs and arms that did not concern her. At that time, Jamila, had no bruises or “open marks on her face.” Although the prosecution contended that Gordon had deliberately isolated Jamila during the last weeks of Jamila’s life, Thaxton testified that Gordon had asked her to babysit on the day Jamila died. -6- Gordon and Thomas both testified before their respective juries. Thomas vehemently denied ever harming Jamila, and Gordon insisted that she was unaware of any abuse. The juries were also provided with extensive medical records and records generated by personnel with the Early On program. None of the Early On evaluators testified at the trial. Their records established that Jamila was severely developmentally delayed. When she died at the age of 3 years and 4 months, Jamila was nonverbal, could not feed herself, could not follow directions or make her needs known, was not toilet trained, and functioned at the intellectual level of an 11 month old. Nevertheless, the evidence supported that Jamila was able to walk and run. Ultimately, the two juries rendered somewhat inconsistent verdicts. Thomas’s jury convicted him of involuntary manslaughter, MCL 750.321 (negligent failure to perform a legal duty), and assaulting, resisting or obstructing a police officer (arising from his attempt to flee from arrest at the hospital), but acquitted him of felony murder, MCL 750.316(1)(b), and first- degree child abuse, MCL 750.136b(2). The trial court sentenced Thomas to 57 months to 15 years’ imprisonment for involuntary manslaughter. Gordon’s jury convicted her first-degree child abuse as an aider and abettor, MCL 750.136b(2), and involuntary manslaughter, MCL 750.321 (negligent failure to perform a legal duty). She was acquitted of felony murder. The trial court sentenced Gordon to 14 to 25 years’ imprisonment on the first-degree child abuse conviction and seven to 15 years’ imprisonment on the involuntary manslaughter conviction. Both defendants now appeal. II. DEFENDANT THOMAS A. SUFFICIENCY OF THE EVIDENCE Thomas challenges the sufficiency of the evidence underlying his involuntary manslaughter conviction. We review challenges to the sufficiency of the evidence de novo. People v Meissner,294 Mich. App. 438
, 452; 812 NW2d 37 (2011). “Even though unpreserved, a question of sufficiency of evidence may be reviewed de novo by this Court in a criminal case.” People v Osby,291 Mich. App. 412
, 415; 804 NW2d 903 (2011). The crime of involuntary manslaughter is not defined by statute.2 Under the common law: [I]nvoluntary manslaughter is the unintentional killing of another, without malice, during the commission of an unlawful act not amounting to a felony and not naturally tending to cause great bodily harm; or during the commission of some 2 MCL 750.321 provides: “Any person who shall commit the crime of manslaughter shall be guilty of a felony punishable by imprisonment in the state prison, not more than 15 years or by fine of not more than 7,500 dollars, or both, at the discretion of the court.” -7- lawful act, negligently performed; or in the negligent omission to perform a legal duty. [People v Mendoza,468 Mich. 527
, 536; 664 NW2d 685 (2003).] 1. LEGAL DUTY Thomas first challenges the sufficiency of the evidence supporting that he negligently omitted to perform a legal duty. Thomas claims that he merely served as Jamila’s occasional babysitter, and therefore did not have a duty, or even the right, to seek medical assistance for her. “The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter.” People v Beardsley,150 Mich. 206
, 209;113 N.W. 1128
(1907). This rule “is always based on the proposition that the duty neglected must be a legal duty, and not a mere moral obligation.”Id. The Supreme
Court catalogued the legal relationships giving rise to a legal duty as follows: If a person who sustains to another the legal relation of protector, as husband to wife, parent to child, master to seaman, etc., knowing such person to be in peril, willfully and negligently fails to make such reasonable and proper efforts to rescue him as he might have done, without jeopardizing his own life, or the lives of others, he is guilty of manslaughter at least, if by reason of his omission of duty the dependent person dies. So one who from domestic relationship, public duty, voluntary choice, or otherwise, has the custody and care of a human being, helpless either from imprisonment, infancy, sickness, age, imbecility, or other incapacity of mind or body is bound to execute the charge with proper diligence, and will be held guilty of manslaughter, if by culpable negligence he lets the helpless creature die. [Id. at 209-210 (quotation marks and citation omitted, emphasis added).] As examples of omissions that could support liability for involuntary manslaughter, Beardsley invoked cases involving a husband who allowed his intoxicated wife to die in the snow, a husband who neglected to provide clothing and shelter for his “insane wife,” and a mother who exposed “her infant child without protection.”Id. at 210.
In contrast, the Court agreed with the holding in a Vermont case that the employers of “a maid servant” who lived in their home had no duty to supply the maid servant’s child with “proper care.”Id. at 210-211.
Applying these principles, the Beardsley Court reversed the defendant’s manslaughter conviction. The victim in that case was an adult woman who spent a night or two drinking with the defendant while the defendant’s wife was “temporarily absent from the city.”Id. at 207.
She paid a third person to purchase some morphine tablets for her use.Id. The victim
unsuccessfully attempted to conceal her ingestion of the morphine from the defendant, and he unsuccessfully tried to prevent her from taking it.Id. at 208.
When she passed into a stupor, the defendant “was too intoxicated to be of any assistance.” A third person took her to someone else’s room, where she died.Id. In setting
aside the defendant’s manslaughter conviction the Supreme Court held that the defendant had no duty to prevent the victim’s death. The Court explained: -8- [T]he deceased was a woman past 30 years of age. She had been twice married. She was accustomed to visiting saloons and to the use of intoxicants. She previously had made assignations with this man in Detroit at least twice. There is no evidence or claim from this record that any duress, fraud, or deceit had been practiced upon her. On the contrary it appears that she went upon this carouse with respondent voluntarily and so continued to remain with him . . . . . . . Respondent had assumed either in fact or by implication no care or control over his companion. Had this been a case where two men under like circumstances had voluntarily gone on a debauch together, and one had attempted suicide, no one would claim that this doctrine of legal duty could be invoked to hold the other criminally responsible for omitting to make effort to rescue his companion. How can the fact that in this case one of the parties was a woman change the principle of law applicable to it? Deriving and applying the law in this case from the principle of decided cases, we do not find that such legal duty as is contended for existed in fact or by implication on the part of respondent towards the deceased, the omission of which involved criminal liability. [Id. at 214-215 (emphasis added).] The defendant may have had a moral duty to intervene, the Court opined, but he did not have a legal one.Id. at 215.
Thomas asserts that as Jamila’s “occasional babysitter” he had no legal duty to obtain medical care for her “absent express consent from her parent.” Beardsley supports that Thomas’s “domestic relationship” with Jamila, coupled with her “helpless[ness],” could give rise to a duty. More specifically, the in loco parentis doctrine imposes the legal duty that applies in this case and is fully consistent with the duty principles set forth in Beardsley. Recall that in Beardsley, the Supreme Court opined that a person who “has the custody and care” of a human being unable to care for herself due to “infancy [or] age . . . is bound to execute the charge with proper diligence[.]” The in loco parentis doctrine stands for the same proposition. “The intimate relationship between parent and child can surely arise outside genetic bonds.” Hush v Devilbiss Co,77 Mich. App. 639
, 647; 259 NW2d 170 (1977). This Court explained in Hush that whether an adult stands in loco parentis to a child depends, in part, on the adult’s intent: Legally, the assumption of in loco parentis status1 is a question of intent. Intent to assume parental status can be inferred from the acts and declarations of the parties. Some factors to consider are the age of the child; the degree to which the child is dependent on the person claiming to be standing in loco parentis; the amount of support, if any, provided; the extent to which duties commonly associated with parenthood are exercised. Providing financial support may be an unimportant consideration in light of the relative situations of the person standing in loco parentis and the real parents. In some cases, while providing financial support may be unnecessary, the benefits flowing to the child by reason of someone’s assumption of the other infinitely various parental duties may be most essential. -9- _______________________________________________________________ 1 The various definitions of the term “in loco parentis” were compiled in 67 CJS Parent and Child, § 71, pp 803-804: The term ‘in loco parentis’ has been defined as in the place of a parent; instead of a parent; charged, factitiously, with a parent’s rights, duties, and responsibilities; more specifically, the relationship which a person assumes toward a child not his own, holding the child out to the world as a member of his family toward whom he owes the discharge of parental duties. It has been said that the accepted definition of a person in loco parentis is one who means to put himself in the situation of a lawful parent to the child with respect to the office and duty of making provision for it; one assuming the parental character and discharging parental duties; a person standing in loco parentis to a child is one who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption. Distinctions. One standing in loco parentis has been distinguished from a brother or sister, cousin, or natural parent. Loco parentis differs from adoption in that the one is temporary and the other permanent in nature. (Footnotes omitted.) [Id. at 649 (citations omitted).] ________________________________________________________________ In People v Thomas,85 Mich. App. 618
, 624; 272 NW2d 157 (1978), this Court applied the in loco parentis doctrine in a criminal case, holding that a person who has “voluntarily assumed a parental function” bears a legal duty to obtain necessary medical attention for one not otherwise able to obtain it on his or her own. The defendant in Thomas was “the work coordinator” at a “religious practical training school” who had obtained permission from the victim’s parents to discipline their mentally ill son “if necessary.”Id. at 621.
After a severe beating administered in the guise of discipline, the victim could not walk and gradually became ill with flu-like symptoms. The defendant failed to arrange for any medical intervention, and the young man died.Id. at 622.
Medical evidence linked the beating to the death.Id. at 623.
This Court upheld the defendant’s conviction for involuntary manslaughter premised on his failure to perform a legal duty, explaining: Defendant was a supervisor of Oak Haven, stood in a position of authority over the victim and, by talking with the victim’s parents and obtaining their permission to discipline the decedent, he directly and voluntarily assumed a parental function, and stood in a position of loco parentis to the decedent. Under such circumstances, defendant’s beating of the victim coupled with his failure to provide medical attention, when decedent was unable to obtain same himself, violated defendant’s legal duty to care for the victim. The elements of involuntary manslaughter were adequately established. [Id. at 624.] -10- In Beardsley’s parlance, Thomas’s legal duty arose “by implication . . . from the facts and circumstances of the case.” He voluntarily undertook a parental function to care for Jamila in her mother’s absence, acting as her sole caretaker during portions of the day. Despite his protestations that he had not caused Jamila’s head injury, he acknowledged that Jamila’s condition began to deteriorate after the head injury occurred and that her mother had decided against medical consultation. Thomas actively participated in “treating” Jamila with ice, cocoa butter and Pedialyte, acting as a parent toward an ill and injured child. This evidence substantiated that Thomas intentionally and voluntarily undertook a duty of care, and had more than a moral obligation to seek medical care for the child. That Gordon failed to provide necessary care does not excuse Thomas from his independent obligation, as one standing in loco parentis, to react appropriately to the child’s symptoms of serious illness. Further, Thomas was not a mere “babysitter” for Jamila. He cohabitated with her mother, cared for her on a regular basis, and voluntarily addressed her medical needs. These facts suffice to give rise to a legal duty of care for an obviously ill child. Nor did the prosecutor neglect to introduce sufficient evidence regarding Thomas’s legal duty. The evidence substantiated that Thomas voluntarily assumed the obligations of a parent; he admitted that when Gordon was at work, it was his “responsibility to see that [the children] were cared for[.]” He “cooked and . . . cleaned” for them, changed Jamila’s clothes when she vomited on them, and treated Jamila’s head wound by icing it when it occurred under his watch. Thomas admitted during his interrogation that he “should have” taken Jamila to the hospital. In the fourth hour of questioning he stated: “I shoulda just took her to the hospital” when she did not get better after she had hit her head. He continued: “I made a bad judgment call . . . on not taking her to the hospital.” He explained that ever since she hit her head, “she’s been going down.” Accordingly, we reject Thomas’s arguments that he had no legal duty, or that the prosecution failed to present evidence substantiating it. 2. CAUSATION Thomas further contends that insufficient evidence supported that his omission caused Jamila’s death. This claim also lacks merit. Dr. Kesha testified that Jamila’s pancreatic injury would have caused symptoms of illness obvious to a caretaker. He explained that “depending on the age of the child and the development of the child,” she would exhibit “fever, can have abnormal bowel movement, abnormal urination, pain, be drowsy, lethargic, wants to sleep all the time, wants to be held all the time, can have many different symptoms.” In response to the prosecutor’s questioning, Dr. Kesha stated that a child with a pancreatic injury “might vomit or she might not.” If Jamila had received treatment after the first pancreatic injury, Dr. Kesha opined, she would have survived. The trial evidence substantiated that Jamila had been vomiting since sustaining her head injury, and did not appear to be as energetic as she normally was. Thomas admitted that the child had been sick “that last couple of weeks.” In combination with Dr. Kesha’s testimony, this evidence sufficed to demonstrate a causal relationship between Thomas’s omission and Jamila’s death. -11- B. OV 10 Thomas further contends that the trial court improperly assessed 10 points for offense variable 10. 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. 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. [People v Hardy,494 Mich. 430
, 438; 835 NW2d 340 (2013).] MCL 777.40 provides for the scoring of OV 10 as follows: (1) [OV] 10 is exploitation of a vulnerable victim. Score [OV] 10 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points: (a) Predatory conduct was involved.... 15 points (b) The offender exploited a victim’s physical disability, mental disability, youth or agedness, or a domestic relationship, or the offender abused his or her authority status........ 10 points (c) The offender exploited a victim by his or her difference in size or strength, or both, or exploited a victim who was intoxicated, under the influence of drugs, asleep, or unconscious...... 5 points (d) The offender did not exploit a victim’s vulnerability.......... 0 points (2) The mere existence of 1 or more factors described in subsection (1) does not automatically equate with victim vulnerability. (3) As used in this section: *** (b) “Exploit” means to manipulate a victim for selfish or unethical purposes. (c) “Vulnerability” means the readily apparent susceptibility of a victim to injury, physical restraint, persuasion, or temptation. The text of OV 10 permits a score of 10 points when “[t]he offender exploited a victim’s . . . youth or agedness[.]” MCL 777.40(1)(b). MCL 777.40(3)(b) defines “exploit” as “to manipulate a victim for selfish or unethical purposes.” “Accordingly, to merit a score of 10 points for OV 10, a defendant must have manipulated a young victim for a selfish or unethical purpose and the victim’s vulnerability must have been readily apparent.” People v Needham,299 Mich. App. 251
, 255; 829 NW2d 329 (2013). -12- Thomas admitted that Jamila had been vomiting during the last week of her life and “[s]he just wasn’t running around busy like she usually be.” During his interview, Thomas had no excuse for failing to obtain medical care for the child, other than that doing so was her mother’s responsibility. Even if Thomas did not inflict any of Jamila’s injuries, he selfishly neglected to meaningfully attend to Jamila’s obvious medical needs. The trial court did not err in scoring OV 10 at 10 points. Accordingly, we affirm both his convictions and his sentences. III. DEFENDANT GORDON Gordon contends that her trial counsel’s performance was constitutionally deficient, leading to her convictions. Gordon preserved this issue by successfully moving in this Court for remand to conduct a hearing on this issue. People v Armisted,295 Mich. App. 32
, 46; 811 NW2d 47 (2011), citing People v Ginther,390 Mich. 436
; 212 NW2d 922 (1973). “Whether a person has been denied the effective assistance of counsel is a mixed question of fact and constitutional law.” People v LeBlanc,465 Mich. 575
, 579; 640 NW2d 246 (2002). Findings of fact are reviewed for clear error, while determinations of constitutional law are reviewed de novo.Id. “ ‘[I]t
has long been recognized that the right to counsel is the right to the effective assistance of counsel.’ ” United States v Cronic,466 U.S. 648
, 654;104 S. Ct. 2039
; 80 L Ed 2d 657 (1984), quoting McMann v Richardson,397 U.S. 759
, 771 n 14;90 S. Ct. 1441
;25 L. Ed. 2d
763 (1970). In Strickland v Washington,466 U.S. 668
, 687;104 S. Ct. 2052
;80 L. Ed. 2d 674
(1984), the United States Supreme Court set forth the now familiar formula for an ineffective assistance claim: “First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense.” To establish the first component, a defendant must show that counsel’s performance fell below “an objective standard of reasonableness” under “prevailing professional norms.” People v Solmonson,261 Mich. App. 657
, 663; 683 NW2d 761 (2004). With respect to the prejudice aspect, the defendant must demonstrate “a reasonable probability that but for counsel’s . . . errors,” the result of the proceedings would have differed.Id. at 663-664.
“A reasonable probability is a probability sufficient to undermine confidence in the outcome.”Strickland, 466 U.S. at 694
. The defendant must overcome the strong presumptions that his “counsel’s conduct falls within the wide range of reasonable professional assistance,” and that counsel’s actions represented sound trial strategy.Id. at 689.
A defense counsel possesses “wide discretion in matters of trial strategy.” People v Odom,276 Mich. App. 407
, 415; 740 NW2d 557 (2007). And decisions regarding what witnesses to present are generally considered strategic, supporting relief only when the defendant is denied a substantial defense based on a witness’s absence. People v Payne,285 Mich. App. 181
, 190; 774 NW2d 714 (2009). This Court may not “substitute our judgment for that of counsel on matters of trial strategy, nor will we use the benefit of hindsight when assessing counsel’s competence.”Id. (quotation marks