People of Michigan v. Tatiana Elena Fusari

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 23, 2023
Plaintiff-Appellee,
v No. 359610
Kent Circuit Court
TATIANA ELENA FUSARI, LC No. 18-009246-FC
Defendant-Appellant.
Before: K. F. KELLY, P.J., and BOONSTRA and REDFORD, JJ.
PER CURIAM.
Defendant appeals by right her jury-trial convictions of felony murder, MCL 750.316(b),
and first-degree child abuse, MCL 750.136b(2). The trial court sentenced defendant to life
imprisonment for the felony murder conviction and a prison term of 180 to 360 months for the
first-degree child-abuse conviction. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Defendant and her husband, Seth Welch, had a daughter, MA, in 2017.1 In 2018, ten-
month old MA was found dead from malnourishment and dehydration. Defendant and Welch
were arrested and charged with felony murder and first-degree child abuse. Shortly after Welch
was convicted of the charged crimes, defendant pled no contest to second-degree child abuse and
second-degree murder, with an agreed-upon minimum sentence of 25 years’ imprisonment.
Approximately four months after defendant entered her plea, she moved to withdraw it,
based on the Michigan Supreme Court’s recent holding that “duress may be asserted as an
affirmative defense to felony murder if it is a defense to the underlying felony.” See People v
Reichard, 505 Mich 81, 96; 949 NW2d 64 (2020), overruling People v Reichard, 323 Mich App
613, 619; 919 NW2d 417 (2018) (in which this Court concluded that the trial court had erred by
allowing the defendant to raise duress as an affirmative defense to felony murder). On the basis
1
Defendant and Welch also have two older children.
-1-
of this change in the law, defendant moved to withdraw her plea under MCR 6.310(B), which
allows a defendant to withdraw a plea before sentencing if justice will be served and the
prosecution will not be substantially prejudiced. In a supplemental affidavit submitted in support
of her motion to withdraw, defendant asserted that Welch had “systematically and continuously
physically, emotionally, and mentally abused [her]. That abuse prevented [her] from caring for
the proper health and welfare of [her] child . . . .” The trial court concluded that defendant had
met her burden under MCR 6.310(B) and allowed defendant to withdraw her plea, but it cautioned
her that she was risking life in prison and that if she did not establish a sufficient factual predicate
for a duress instruction, the trial court would not give one.
At trial, several witnesses testified to their observations that MA had an emaciated
appearance in the months before her death: she was small, had sunken eyes and cheeks, her spine
was visible, and she lacked muscle mass. MA’s autopsy showed external and internal signs of
malnourishment that would have taken weeks to develop, and the medical examiner testified that
any adult who saw MA would know that she was malnourished. Several witnesses also testified
that they knew defendant before and after she met Welch, and that her personality had changed
noticeably after she started dating him. Defendant presented the testimony of an expert witness
about the dynamics of domestic violence. Defendant testified regarding Welch’s physical
violence, rulemaking and rule enforcement, threats, and economic and emotional abuse.
Defendant testified that she had internalized Welch’s narrative and that, out of fear of physical
punishment, she did not question him when he told her that MA’s weight and listlessness were not
a cause for concern and prohibited her from taking the child to the doctor. Defendant also denied
that she had withheld food from MA, stating that she breastfed, gave MA infant formula, and fed
MA jars of liquified fruit and vegetables multiple times per day. She testified that she took the
children, including MA, out in public frequently during June and July 2019, unaccompanied by
Welch.
After defendant testified, defense counsel requested that the jury be instructed regarding
the affirmative defense of duress. The trial court declined to give the instruction, concluding that
defendant had maintained that she had not abused or neglected MA and that she therefore had not
established her entitlement to an affirmative defense instruction. The jury convicted defendant as
described. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
Defendant argues that there was insufficient evidence presented at trial to maintain her
conviction of first-degree child abuse. We disagree. This Court reviews a challenge to the
sufficiency of the evidence by reviewing the evidence de novo “in the light most favorable to the
prosecution to determine whether a rational trier of fact could have found the essential elements
of the crime to have been proved beyond a reasonable doubt.” See People v Meissner, 294 Mich
App 438, 452; 812 NW2d 37 (2011). “Because it is difficult to prove an actor’s state of mind, the
prosecution may rely on minimal circumstantial evidence to prove that the defendant had the
required mental state.” People v McFarlane, 325 Mich App 507, 516; 926 NW2d 339 (2018).
“Intent and knowledge can be inferred from one’s actions.” People v Gould, 225 Mich App 79,
87; 570 NW2d 140 (1997).
-2-
A person who “knowingly or intentionally causes serious physical harm or serious mental
harm to a child” is guilty of first-degree child abuse. MCL 750.136b(2). Defendant does not deny
that MA suffered serious physical harm, but contends that sufficient evidence was not presented
that she had intentionally or knowingly starved her daughter to death. The record does not support
her position. Numerous witnesses testified that they observed obvious physical signs of
malnourishment in MA. A witness who saw MA the month before her death testified that she
thought the child was “too small” and did not look right, and that she never saw the child move.
Another witness described MA as “a little ashy” and said that she appeared to be losing weight. A
friend of defendant’s who saw MA at a June 2018 barbeque said that the child felt very small and
that one could feel her spine. A paramedic called to the scene of the child’s death testified that the
10-month-old MA appeared to be the size of a newborn and that she had sunken cheeks and was
emaciated. The medical examiner testified that any adult interacting with MA would recognize
that she was severely malnourished. The jury also heard testimony indicating that defendant knew
that her daughter’s condition was atypical. Defendant would explain her daughter’s small size by
saying that she had been born prematurely (although the midwife testified that MA was born at 37
weeks and would not experience long-term developmental delays), or insist that she had been
feeding her. The jury also heard evidence that MA’s dehydrated and malnourished condition
developed over time. The medical examiner testified that the infant’s eyes were sunken, her ribs
and spine were visible, she lacked muscle tissue in her arms and legs, her skin was wrinkled and
tented, and she weighed only eight pounds. The medical examiner further testified that it would
have taken weeks for external signs of malnutrition and dehydration to develop. Defendant
testified that she fed MA the majority of the time, apart from when she was at work.
Viewing this evidence in the light most favorable to the prosecution, Meissner, 294 Mich
App at 452, and drawing all reasonable inferences in favor of the jury verdict, People v Oros, 502
Mich 229, 239; 917 NW2d 559 (2018), a rational jury could determine that defendant was, or
should have been, aware that MA was suffering increasingly severe harm, in the form of
malnourishment, as a result of her care. The evidence was therefore sufficient to support her
conviction of first-degree child abuse.
III. DURESS INSTRUCTION
Defendant also argues that the trial court erred by refusing to instruct the jury on the defense
of duress. We disagree. “Claims of instructional error are generally reviewed de novo by this
Court, but the trial court’s determination that a jury instruction is applicable to the facts of the case
is reviewed for an abuse of discretion.” People v Dobek, 274 Mich App 58, 82; 732 NW2d 546(2007). A trial court does not abuse its discretion if its decision results in an outcome within the
range of reasonable and principled outcomes. People v Duncan, 494 Mich 713, 723; 835 NW2d
399 (2013).
Duress is a common-law affirmative defense that may apply when a crime is committed to
avoid a greater harm. People v Lemons, 454 Mich 234, 245-246; 562 NW2d 447 (1997). “In order
to properly raise the defense, the defendant has the burden of producing some evidence from which
the jury can conclude that the essential elements of duress are present.” Id. at 246 (quotation marks
and citation omitted). A defendant meets this burden by introducing some evidence from which
the jury could conclude the following:
-3-
A) The threatening conduct was sufficient to create in the mind of a
reasonable person the fear of death or serious bodily harm;
B) The conduct in fact caused such fear of death or serious bodily harm in
the mind of the defendant;
C) The fear or duress was operating upon the mind of the defendant at the
time of the alleged act; and
D) The defendant committed the act to avoid the threatened harm. [Id.
at 247.]
In addition, the threatening conduct must be “present, imminent, and impending,” in that a “threat
of future injury is not enough.” Id. (quotation marks, citations, and brackets omitted).
In this case, defendant testified at length about Welch’s domestic violence and emotional
and sexual abuse. However, defendant repeatedly insisted that she did not commit first-degree
child abuse, that she did not participate in MA’s death by starvation and dehydration, and that she
did not kill her baby. Despite evidence that MA had been malnourished for weeks, defendant
insisted that she nursed her at least twice a day and gave her four to six jars of fruit and vegetables,
along with formula, right up until the day before MA’s death. Defendant testified that she fed her
daughter as often as she could and as often as the infant would eat.
To be entitled to raise a duress defense, defendant had to present some evidence on each
of the elements identified in Lemons, including that she knowingly or intentionally caused serious
physical harm to her daughter in order to avoid a greater harm. See id. at 246. By denying that
she participated in MA’s death in any way, defendant failed to present evidence that she
“committed the act to avoid the threatened harm.” Id. at 247. Accordingly, defendant’s testimony
did not warrant a duress instruction. See id. at 249. Because defendant did not establish a prima
facie defense of duress, the trial court did not abuse its discretion by rejecting her request for an
instruction on duress. See id. at 250.
Defendant argues in the alternative that if the trial court did not abuse its discretion by
denying her request for a duress instruction, then her vacated plea should be reinstated. Defendant
argues that the trial court’s grant of her motion to withdraw her plea entitled her to assume that she
had established a prima facie defense of duress so as to be entitled to a jury instruction. The record
does not support defendant’s argument.
Defendant moved to withdraw her plea under MCR 6.310(B) on the basis of the change in
law resulting from the Michigan Supreme Court’s holding in Reichard, 505 Mich at 96. Whether
defendant’s affidavit established a prima facie defense of duress, or whether defendant could
present evidence at trial that was legally sufficient to warrant a duress instruction, was not relevant
to her burden under MCR 6.310(B)(1). Further, the trial court clearly stated that its decision to
allow defendant to withdraw her plea was based on this change in the law, and that the availability
of a duress instruction was a fact-specific inquiry that would be conducted at trial. The trial court
-4-
explicitly warned defendant of the risk that she might not receive such an instruction. Her
argument that her plea-based convictions and sentences should be reinstated is without merit.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Mark T. Boonstra
/s/ James Robert Redford
-5-