People v. Maynor

WEAVER, J.

(concurringj. I concur in the result of the majority opinion, but write separately because the majority fails to state whether first-degree child abuse1 is a general intent crime or a specific intent crime.2 The failure to address this aspect of the case will cause *298confusion in the lower courts when attorneys and trial judges attempt to determine what instructions must be provided to the jury. Contrary to the majority’s assertion, the standard jury instruction for first-degree child abuse, CJI2d 17.18, does not clearly explain that the prosecution must establish both that defendant intended to leave her children in the car and that by doing so, she intended to cause harm or knew that serious physical harm would be caused. Consequently, attorneys and trial judges will be at a loss about how the proper burden of proof can be explained to the jury.

I would hold that pursuant to the current language of the statute, first-degree child abuse is a crime of specific intent, requiring the prosecution to establish not only that defendant intended to leave her children in the car, but also that by doing so, defendant intended to cause serious physical harm or that she knew that serious physical harm would be caused. Additionally, I would hold that, because first-degree child abuse is a specific intent crime, it is appropriate to provide the jury with an instruction on specific intent. For these reasons, I would affirm the Court of Appeals decision affirming reinstatement of the felony-murder charges3 against defendant.

When construing a statute, this Court’s primary goal is to give effect to the intent of the Legislature. We begin by construing the language of the statute itself. Where the language is unambiguous, we give the words their plain meaning and apply the statute as written. In re MCI, 460 Mich 396, 411; 596 NW2d 164 (1999).

*299Traditionally, general intent crimes involve merely the intent to do the physical act, while specific intent crimes involve a particular criminal intent beyond the act done. People v Beaudin, 417 Mich 570, 574; 339 NW2d 461 (1983). Black’s Law Dictionary further explains that “general intent” is “the intent to do that which the law prohibits. It is not necessary for the prosecution to prove that the defendant intended the precise harm or the precise result which eventuated.” Black’s Law Dictionary (6th ed). Specific intent is “[t]he mental purpose to accomplish a specific act prohibited by law.” Id. Specific intent designates “a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime.” Id.

The child abuse statute provides:

A person is guilty of child abuse in the first degree if the person knowingly or intentionally causes serious physical harm or serious mental harm to a child. Child abuse in the first degree is a felony punishable by imprisonment for not more than 15 years. [MCL 750.136h(2) (emphasis added).]

The prosecution contends that the italicized language only requires a general intent on defendant’s part— that is, the prosecution must only prove that defendant intended to leave her children in the car, not that she intended to seriously harm them by leaving them in the car. I disagree with this argument because it is contrary to the plain language of the statute.

The plain language of the current statute requires that to be convicted of first-degree child abuse, a person “knowingly or intentionally causes serious physical harm or serious mental harm to a child.” MCL 760.136b(2). In People v Whitney, 228 Mich App 230, 255; 578 NW2d 329 (1998), the Court of Appeals concluded that MCL 15.272, which addresses violations of *300the Open Meetings Act, was a specific intent crime because the word “intentionally” modified the word “violates.” Similarly, in the first-degree child abuse statute, the words “knowingly or intentionally” modify the phrase “causes serious physical or mental harm to a child.” Thus, this language requires more from defendant than a general intent to commit an act. The prosecution must prove that by leaving her children in the car, the defendant intended to cause serious physical or mental harm to the children or that she knew that serious mental or physical harm would be caused by leaving them in the car.

Contrasting the language of the first-degree child abuse provision with the language of the second-degree child abuse provision further demonstrates that first-degree requires more than simply an intent on the part of defendant to leave her children in the car. The language of the second-degree child abuse provision provides:

A person is guilty of child abuse in the second degree if any of the following apply:
(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 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) (emphasis added).]

In the second-degree child abuse provision, the words “knowingly” and “intentionally” modify the phrase “commits an act.” Thus, to establish second-degree child abuse, the prosecution must prove only that a defendant intended to commit an act likely to cause *301harm. The prosecution does not have to prove that a defendant intended serious physical or mental harm.

Had the Legislature intended that it be enough to sustain a conviction for first-degree child abuse by proving only that the person intended to commit the act that caused harm, the Legislature could have included language similar to the language used in the second-degree child abuse provision and stated: it is first-degree child abuse to “knowingly or intentionally commit an act that causes serious physical or mental harm to a child.” But the Legislature chose not to include this phrasing, and I will not usurp the Legislature’s role by reading this additional language into the statute.4

Because I would hold that first-degree child abuse is a specific intent crime, I would further conclude that it is appropriate to provide the jury with the instruction on specific intent, CJI2d 3.9, which states:

(1) The crime of_requires proof of a specific intent. This means that the prosecution must prove not only that the defendant did certain acts, but that [he / she] did the acts with the intent to cause a particular result.
(2) For the crime of_this means that the prosecution must prove that the defendant intended to [state the required specific intent].
*302(3) The defendant’s intent may be proved by what [he / she] said, what [he / she] did, how [he / she] did it, or by any other facts and circumstances in evidence.[5]

I disagree with the majority’s assertion that the standard jury instruction for first-degree child abuse, CJI2d 17.18,6 is sufficient instruction regarding intent. As is evidenced by this case, CJI2d 17.18 offers no clear *303explanation of intent for the jury. Accordingly, providing a specific intent instruction is necessary to guide the jury regarding what the prosecutor must prove under MCL 750.136b(2)—in this case, that defendant not only intended to leave her children in the car, but also that, by doing so, she intended to cause serious physical harm or knew that serious physical harm would be caused.7 The majority’s conclusion that such an instruction is not necessary will only result in confusion at the trial court level.

CONCLUSION

I would conclude that first-degree child abuse is a crime of specific intent, requiring in this case that the prosecution establish not only that defendant intended to leave her children in the car, but also that, by doing so, defendant intended to cause serious physical harm *304or knew that serious physical harm would be caused. Additionally, I would conclude that because first-degree child abuse is a specific intent crime, it is appropriate to provide the jury with an instruction on specific intent. Accordingly, I concur in the result of the majority opinion, which affirms the Court of Appeals decision affirming the circuit court’s reinstatement of the felony-murder charges against defendant.

CAVANAGH and KELLY, JJ., concurred with WEAVER, J.

MCL 750.136b(2). This statute provides:

A person is guilty of child abuse in the first degree if the person knowingly or intentionally causes serious physical harm or serious mental harm to a child. Child abuse in the first degree is a felony punishable by imprisonment for not more than 15 years.

The Court also declined to reach this issue in People v Sherman-Huffman, 466 Mich 39, 40; 642 NW2d 339 (2002), because we concluded that there was sufficient evidence in that case to convict the defendant of third-degree child abuse regardless of whether the crime was a specific intent crime or a general intent crime.

MCL 750.316(l)(b). This statute provides in part that a person commits murder in the first-degree if the murder is committed “in the perpetration of, or attempt to perpetrate.. . child abuse in the first degree ....”

Several house bills have been introduced to amend the child abuse statute. See HB 4327, HB 4468, and HB 4583. Interestingly, one of these bills, HB 4468, would add an additional means for establishing first-degree child abuse: it is child abuse in the first degree if “the person knowingly or intentionally commits an act that causes serious physical or serious mental harm to a child.” (Emphasis added.) On April 1, 2004, consideration of HB 4468 was postponed temporarily. 2004 Journal of the House of Representatives 623 (No. 30, April 1, 2004).

A House Bill has also been introduced that would make it a crime to leave a child unattended in a vehicle. See HB 4499.

I note that because MCL 750.136b(2) makes it a crime to “knowingly or intentionally” cause harm, I would instruct the trial court to include both aspects—intentionally causing harm and knowingly causing harm —when it states the required specific intent in § 2.

CJI2d 17.18 provides:

(1) The defendant is charged with the crime of first-degree child abuse. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

[Choose (2) or (3):]

(2) First, that [name defendant] is the [parent/ guardian] of [name child],
(3) First, that [name defendant] had care or custody of or authority over [name child] when the abuse allegedly happened.
(4) Second, that the defendant either knowingly or intentionally caused [serious physical harm / serious mental harm] to [name child],

[Choose (a) or (b):]

(a) By “serious physical harm” I mean any physical injury to a child that seriously impairs the child’s health or physical well-being, including, but not limited to, brain damage, a skull or bone fracture, subdural hemorrhage or hematoma, dislocation, sprain, internal injury, poisoning, burn or scald, or severe cut.
(b) By “serious mental harm” I mean an injury to a child’s mental condition that results in visible signs of an impairment in the child’s judgment, behavior, ability to recognize reality, or ability to cope with the ordinary demands of life.
(5) Third, that [name child] was at the time under the age of 18.

I also note that I agree with the Court of Appeals that there is sufficient evidence from which the jury could conclude that defendant acted with the requisite intent for first-degree child abuse. In the present case, defendant left her children, ages ten months and three years, in a car for approximately 3V2 hours on a day in late June, when temperatures were in the eighties. Defendant admitted that she made up the story about being abducted so that people would not think that she was a horrible person “who left [her] children in a hot car.” She also explained that she had never left her children alone in the car before. These statements suggest that defendant was aware of the risks to her children if they were left alone in a hot car. Additionally, the fact that at least one of the car windows was rolled down an inch or two suggests that defendant had knowledge that the inside of the car would become hot while it sat in an unshaded, asphalt parking lot on a hot June day. Moreover, given the children’s very young ages, leaving these children unattended anywhere for 3V2 hours could be considered questionable conduct that might harm the children. Although defendant left the salon to purchase a snack, she did not check on her children during the 3V2 hours that she was in the salon. From all this evidence, a jury could infer that, by leaving her children in a hot car for 3V2 hours, defendant intended to cause harm or knew that harm would be caused to her children.