Full Opinion (html_with_citations)

Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  December 29, 2014                                                                  Robert P. Young, Jr.,
                                                                                                Chief Justice

  148674                                                                              Michael F. Cavanagh
                                                                                      Stephen J. Markman
                                                                                          Mary Beth Kelly
                                                                                           Brian K. Zahra
                                                                                   Bridget M. McCormack
  PEOPLE OF THE STATE OF MICHIGAN,                                                       David F. Viviano,
            Plaintiff-Appellee,                                                                      Justices

  v                                                       SC: 148674
                                                          COA: 313750
                                                          Wayne CC: 12-004559-FC
  SHAWQUANDA BOROM,
          Defendant-Appellant.

  _________________________________________/

         On October 22, 2014, the Court heard oral argument on the application for leave to
  appeal the December 19, 2013 judgment of the Court of Appeals. On order of the Court,
  the application is again considered. MCR 7.302(H)(1). In this case, the defendant is
  charged with two counts of first-degree child abuse, as both a principal and an aider and
  abettor, and one count of first-degree felony murder, the predicate felony being the
  second count of first-degree child abuse occurring on July 26, 2011. In lieu of granting
  leave to appeal, if the prosecutor proceeds to trial on an aiding and abetting theory, we
  DIRECT the Wayne Circuit Court, pursuant to MCR 7.301(A), to require that, if the jury
  finds the defendant guilty of the second count of first-degree child abuse or felony
  murder, the jury return a special verdict form specifying whether any such verdict was
  premised on a theory that the defendant acted as a principal or that the defendant aided or
  abetted the commission of either of the offenses. See MCR 2.515(A) and MCR
  6.001(D). In all other respects, the application for leave to appeal is DENIED, because
  we are not persuaded that the questions presented should now be reviewed by this Court.

         MARKMAN, J. (concurring).

         I concur in this Court’s interlocutory denial and write separately only to respond to
  the dissent, which concludes that there was not probable cause that defendant possessed
  the necessary intent to sustain a charge of first-degree child abuse.

         Defendant, her 17-year-old boyfriend, and her 16-month-old child lived in the
  home of defendant’s mother. In July 2011, the child was injured on three separate
  occasions while at the home. First, the child suffered an injury to his shoulder on July 9,
  for which he was treated at a hospital and returned home. Second, on or about July 23,
  the child suffered second- and third-degree burns to the back of his head and face, for
  which he was not treated. Third, the child suffered a skull fracture on July 26, for which
  he was brought again to the hospital, where he died two days later.
                                                                                           2

        Authorities investigated the injuries that led to the child’s death, and defendant
was eventually charged with three counts of first-degree child abuse and one count of
first-degree felony murder. 1

        At her preliminary examination, several witnesses testified concerning the
circumstances, and likely causes, of the child’s injuries, and the district court considered
various out-of-court statements of defendant and her boyfriend. The evidence generally
indicated that the child suffered the first injury while in the boyfriend’s care and that it
was not deemed suspicious at the time. However, the facts surrounding the second and
third injuries were of greater concern. Concerning the second injury, both defendant and
her boyfriend asserted that the child was burned when the child accidentally turned on the
hot water during a bath. The boyfriend indicated that he was the only person bathing the
child at the time the child was burned, while defendant indicated that she was the only
person bathing the child. The medical examiner opined that it was unlikely that the child
had accidentally turned on the hot water and burned himself. Concerning the third and
fatal injury, the testimony indicated that the child had been left alone in the boyfriend’s
care. He stated that he saw the child strike his head when he accidentally fell off the
porch stairs. Defendant, on the other hand, stated variously that nothing caused the
injury, that she saw the child fall off the porch stairs and injure himself, and that she was
not at home when the injury occurred. Defendant, at her mother’s urging, eventually
called 911 that evening. According to the medical examiner, the fatal injury was most
consistent with the child being thrown against a “firm object,” and the death was the
result of homicide.

      The prosecutor moved the district court to dismiss the charge of first-degree child
abuse arising out of the first injury and bind defendant over to the circuit court for trial
1
  In Michigan, murder is divided into two degrees: first and second. First-degree murder
is defined in MCL 750.316 and includes “premeditated murder” and “felony murder.”
People v Williams,
475 Mich 101, 103
 (2006). “All other murders” that are not first-
degree murder “are murders in the second degree.” People v Mendoza,
468 Mich 527, 534
 (2003). “First-degree felony murder is the killing of a human being with malice
while committing, attempting to commit, or assisting in the commission of any of the
felonies specifically enumerated in [MCL 750.316(1)(b)].” People v Ream,
481 Mich 223, 241
 (2008) (citation, quotation marks, and emphasis omitted). One felony
specifically enumerated in MCL 750.316(1)(b) is “child abuse in the first degree.”
“[M]alice is a term of art.” People v Aaron,
409 Mich 672, 712
 (1980). “A legal term of
art is a technical word or phrase that has acquired a particular and appropriate meaning in
the law.” People v Law,
459 Mich 419
, 425 n 8 (1999). “[M]alice is the intention to kill,
the intention to do great bodily harm, or the wanton and willful disregard of the
likelihood that the natural tendency of [the] defendant’s behavior is to cause death or
great bodily harm.” Aaron,
409 Mich at 728
.
                                                                                         3

only on the remaining three charges, and the district court did so. Defendant then moved
the circuit court to dismiss the charges in their entirety, and the motion was denied. The
Court of Appeals affirmed.

        “The purpose of a preliminary examination is to determine whether there is
probable cause to believe that a crime was committed and whether there is probable cause
to believe that the defendant committed it.” People v Perkins,
468 Mich 448, 452
 (2003).
“Probable cause requires a quantum of evidence ‘sufficient to cause a person of ordinary
prudence and caution to conscientiously entertain a reasonable belief’ of the accused’s
guilt.” People v Yost,
468 Mich 122, 126
 (2003), quoting People v Justice (After
Remand),
454 Mich 334, 344
 (1997). “The prosecutor need not establish beyond a
reasonable doubt that a crime was committed.” Perkins,
468 Mich at 452
. “Absent an
abuse of discretion, reviewing courts should not disturb a magistrate’s decision to bind a
criminal defendant over for trial.” People v Plunkett,
485 Mich 50, 57
 (2010). “A mere
difference in judicial opinion does not establish an abuse of discretion.” People v Cress,
468 Mich 678, 691
 (2003).

      At the time relevant to this case, the first-degree child abuse statute, MCL
750.136b(2), read as follows:

            A person is guilty of child abuse in the first degree if the person
      knowingly or intentionally causes serious physical 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. [As amended by
2008 PA 577
.]

To prove first-degree child abuse, the prosecutor must show that the “defendant intended
to commit the act” and that the “defendant intended to cause serious physical [or serious
mental] harm or knew that serious physical [or serious mental] harm would be caused by”
the act. People v Maynor,
470 Mich 289, 291
 (2004). 2

       According to the dissent, defendant did not possess the necessary intent to sustain
the first-degree child abuse charge arising out of the third injury. First, the dissent
contends that defendant did not possess the necessary intent as a principal because she
did not intend to cause serious physical or serious mental harm by leaving the child with
her boyfriend, nor did she know that serious physical or serious mental harm would be
caused by doing so. Second, the dissent contends that defendant did not possess the
2
  According to the dissent, “only acts by which a defendant specifically intended to harm
the child are punishable under the first-degree child abuse statute.” In the law, “specific
intent . . . involve[s] a particular criminal intent beyond the act done . . . .” People v
Beaudin,
417 Mich 570, 573-574
 (1983). “Specific intent” is distinguishable from
“general intent,” which “involve[s] merely the intent to do the physical act.”
Id.
                                                                                           4

necessary intent as an aider and abettor because she did not have knowledge of her
boyfriend’s intent to commit first-degree child abuse.

        Concerning the first contention, I do not believe the district court erred by finding
probable cause that defendant had knowledge that serious physical or serious mental
harm would be caused by leaving the child with her boyfriend. The evidence indicated
that the child had suffered two serious injuries in a two-week period, each time while in
the boyfriend’s care. The second injury in particular cast the first injury in a suspicious
light. In addition, defendant’s mother had warned her that bringing the child to the
hospital following the second injury could result in Children’s Protective Services
removing the child from the home. Given the successive injures, and given the warning
about Children’s Protective Services intervention, it is not unreasonable to infer that
defendant knew that her boyfriend was abusing the child and causing him serious
physical harm. Given defendant’s knowledge of the ongoing serious physical harm
caused by her boyfriend on two prior and recent occasions on which the child was left
alone with him, there was sufficient probable cause to believe that she “knew that serious
physical harm would be caused by” leaving the child in her boyfriend’s exclusive care on
a third occasion. Maynor,
470 Mich at 291
.

        Concerning the second contention, I again do not believe the district court erred by
finding probable cause that defendant had knowledge of her boyfriend’s intent to commit
first-degree child abuse. The aiding-and-abetting statute, MCL 767.39, reads as follows:

              Every person concerned in the commission of an offense, whether he
       directly commits the act constituting the offense or procures, counsels, aids,
       or abets in its commission may hereafter be prosecuted, indicted, tried and
       on conviction shall be punished as if he had directly committed such
       offense.

Aiding and abetting “is simply a theory of prosecution, not a separate substantive
offense.” People v Perry,
460 Mich 55
, 63 n 20 (1999). “[A] defendant is liable for the
crime the defendant intends to aid or abet . . . .” People v Robinson,
475 Mich 1, 14-15
(2006). “This includes both intending to commit the crime and aiding someone with
knowledge that he or she intends to commit the crime.”
Id.
 at 15 n 39 (emphasis added).

       As already noted, the evidence here indicated that defendant knew that her
boyfriend was physically abusing the child and causing him serious physical harm. If so,
there was obviously probable cause to believe that defendant knew that her boyfriend
harbored an intent to cause the child such harm. By placing the child in his care on the
day in question, defendant “aid[ed] someone with knowledge that he or she intend[ed] to
commit the crime” of first-degree child abuse.
Id.
                                                                                            5

        In conclusion, and contrary to the dissent, I do not believe the district court abused
its discretion by binding defendant over on the charge of first-degree child abuse arising
out of the fatal injury either as a principal or on an aiding-and-abetting theory.
Furthermore, because I disagree that the district court abused its discretion by binding
defendant over on the predicate felony, I similarly disagree that it abused its discretion by
binding defendant over on the charge of first-degree felony murder. Therefore, I concur
in this Court’s order denying interlocutory leave to appeal. 3

       CAVANAGH, J. (dissenting).

       I disagree with the majority’s interlocutory denial of leave to appeal in this case.
Instead, I would hold that the facts alleged are insufficient to bind defendant over on
charges of first-degree child abuse and felony murder under an aiding-and-abetting
theory. Therefore, I respectfully dissent.

                                     BACKGROUND

       Defendant and her 16-month-old son were living in the home of defendant’s
mother. Defendant’s 17-year-old boyfriend also lived with them. In July 2011,
defendant’s son suffered three injuries over the course of several weeks while under her
boyfriend’s supervision.

      The first injury resulted in a broken arm and shoulder. Defendant’s boyfriend
claimed that the injury occurred when the child fell off the side of the stairs. Defendant
and her boyfriend did not initially take the child to the hospital; however, defendant’s
mother later discovered the injury and took defendant, defendant’s boyfriend, and the
3
  I concur in the Court’s order for another reason. The prosecutor may present alternative
theories to the jury that defendant was guilty of the charges either as a principal or as an
aider and abettor. See People v Gadomski,
232 Mich App 24, 31
 (1998). Ordinarily,
“the jury in a criminal prosecution . . . return[s] a general verdict—guilty or not guilty.”
People v Ramsey,
422 Mich 500, 525
 (1985) (LEVIN, J., dissenting). Thus, when the
prosecutor presents alternative theories of guilt and the jury returns a general verdict of
guilty, the jury does not specify under which theory it found the defendant guilty. See,
e.g., People v Booker (After Remand),
208 Mich App 163, 170
 (1994). However, MCR
2.515(A) provides that “[t]he court may require the jury to return a special verdict in the
form of a written finding on [an] issue of fact, rather than a general verdict.” Under this
Court’s order, therefore, if the prosecutor presents alternative theories of guilt and the
jury finds defendant guilty of one or more of the charges, the lower courts will be able to
identify whether the verdicts were based on defendant’s being a principal or an aiding-
and-abetting theory. Put simply, this Court’s order provides guidance for the lower
courts in any proceedings that might arise after trial. For this additional reason, I concur.
                                                                                         6

child to the hospital where the child was treated for the injury.

       The second injury occurred two weeks later. The child suffered third-degree burns
on the back of his head and second-degree burns across his face. Defendant’s boyfriend
claimed that the burn injuries were caused when he put the child in the bathtub and
started the water before leaving the room to get a diaper; he returned to discover that the
child had turned on the hot water, burning his face and head. Defendant’s mother talked
to defendant about taking the child to the doctor, but warned defendant that the child
would be taken by Child Protective Services for having sustained a second serious injury.
Defendant treated the burns with salve and bandages at the advice of her mother, who
was a healthcare worker, instead of taking the child to the doctor. The medical examiner
later determined that the burn pattern was consistent with a situation in which the child’s
face was toward the floor and hot water was poured on the back of his head and flowed
down both sides of his head.

       The third injury occurred a week later where the child suffered a blow to the head
and became unresponsive. Defendant’s mother received a panicked telephone call from
defendant, saying that she could not wake the child. After speaking with defendant’s
boyfriend, during two separate phone calls defendant’s mother told him and defendant
each to call 911. Defendant called 911, and an ambulance arrived and took the child to
the hospital, where he died days later. Defendant’s boyfriend explained that the third
injury had occurred when he and the child were playing with a ball, while defendant’s
boyfriend was in the yard and the child was on the porch. When defendant’s boyfriend
went to retrieve the ball after the child threw it past him, the child fell off the porch.
During a police interview, defendant’s boyfriend wrote a statement explaining that
defendant was not present when any of the injuries occurred. Defendant’s boyfriend and
defendant told police that defendant had initially lied about being present during the
injuries because she was afraid that she would lose custody of the child because her
boyfriend was not old enough to be watching the child alone.

       The medical examiner opined that the child’s death was caused by a massive
subdural hematoma that occurred as the result of a blunt-force blow to the head powerful
enough to fracture the skull. The examiner concluded that the injury did not result from a
four- or five-foot fall, as described by defendant and defendant’s boyfriend. After
reviewing a reenactment by defendant’s boyfriend of how the injuries allegedly occurred,
the medical examiner concluded that the injuries did not occur as described. The medical
examiner opined that it was more likely that the child had been thrown with force against
a hard object. The medical examiner determined that the death was a homicide.

        Defendant was charged with two counts of first-degree child abuse, premised on
the first and third incidents, and one count of felony murder based on the first-degree
child abuse charge stemming from the third incident. The district court bound defendant
over for trial, but dismissed the count of first-degree child abuse stemming from the first
                                                                                          7

incident. Defendant moved to quash all charges, alleging in part that her failure to act
could not constitute first-degree child abuse. The circuit court denied the motion, and the
Court of Appeals affirmed.

                               STANDARD OF REVIEW

       Issues of statutory interpretation are reviewed de novo. People v Tennyson,
487 Mich 730, 735
 (2010). A district court’s decision whether to bind over a defendant is
reviewed for an abuse of discretion. People v Perkins,
468 Mich 448, 452
 (2003). A
bindover is sufficient if the offense charged has been committed and there is probable
cause to believe that the defendant committed it. See People v Stafford,
434 Mich 125, 133
 (1990).

                                       ANALYSIS

       As stated, under the prosecution’s theory of the case, first-degree child abuse
serves as the predicate felony for the charge of felony murder. The prosecution attempts
to establish first-degree child abuse in two alternative ways. First, the prosecution
contends that defendant committed first-degree child abuse as a principal by leaving the
child in her boyfriend’s care with knowledge that serious injury would likely result.
Second, the prosecution attempts to establish first-degree child abuse under an aiding-
and-abetting theory. For the reasons stated below, I do not think that the prosecution can
establish first-degree child abuse by defendant and, therefore, defendant cannot be bound
over for first-degree child abuse or felony murder. I will address both of these theories in
turn.

                  FIRST-DEGREE CHILD ABUSE AS A PRINCIPAL

       First-degree child abuse, MCL 750.136b(2), requires that a person “knowingly or
intentionally cause serious physical or serious mental harm to a child.” In my view, it is
helpful in resolving this case to compare the first- and second-degree child abuse
provisions. See G C Timmis & Co v Guardian Alarm Co,
468 Mich 416, 421
 (2003)
(explaining that individual statutory provisions “must be read in context with the entire
act, and the words and phrases used there must be assigned such meanings as are in
harmony with the whole of the statute”) (quotation marks and citation omitted). People v
Maynor,
470 Mich 289, 291
 (2004), examined MCL 750.136b(2), and a majority held
that first-degree child abuse “requires the prosecution to establish . . . not only that
defendant intended to commit the act, but also that defendant intended to cause serious
physical harm or knew that serious physical harm would be caused by her act.”
Although the Maynor majority did not expressly compare first-degree child abuse to
second-degree child abuse, I believe that such an approach supports the Maynor
majority’s holding.
                                                                                         8

      Specifically, the second-degree child abuse statute, MCL 750.136b(3), states:

              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 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.

       The Maynor concurrence analyzed the second-degree child abuse statute and noted
that “the words ‘knowingly’ and ‘intentionally’ modify the phrase commits an act.’ ”
Maynor,
470 Mich at 300
 (WEAVER, J., concurring). Accordingly, the concurrence
explained that in order to establish second-degree child abuse, the prosecution must prove
only that a defendant intended to commit an act likely to cause harm, not that a defendant
actually intended serious physical or mental harm.
Id. at 300-301
. The concurrence
concluded that the Legislature could have included within the first-degree child abuse
provision language similar to that within the second-degree child abuse provision if first-
degree child abuse, like second-degree child abuse, only required proof that a defendant
intended to commit the act that caused harm.
Id. at 301
.

        As the Maynor concurrence demonstrates, when the first- and second-degree
provisions of the child abuse statute are read together, it is clear that the first-degree
provision is intended to punish conduct by which a defendant actually intended to cause
harm, whereas the second-degree provision specifically criminalizes both omissions and
reckless acts. Thus, when viewing the first- and second-degree child abuse provisions
together, it defies logic to conclude that the Legislature would intend to punish as first-
degree child abuse acts of recklessness or omission when the defendant lacks the specific
intent that the harm would result as required under the first-degree child abuse provision.
Because the Legislature decided to place acts of omission and recklessness in the second-
degree provision, and not the first-degree provision, that conduct is only punishable as
second-degree child abuse. See Robinson v City of Lansing,
486 Mich 1, 15
 (2010)
(stating that the Court “may not read into the statute what is not within the Legislature’s
intent as derived from the language of the statute”) (quotation marks and citation
omitted); see, also, Jennings v Southwood,
446 Mich 125, 142
 (1994) (“[E]xpress
mention in a statute of one thing implies the exclusion of other similar things.”)
(quotation marks and citation omitted). Accordingly, only acts by which a defendant
                                                                                           9

specifically intended to harm the child are punishable under the first-degree child abuse
statute.

       In my view, defendant’s alleged conduct may be, at most, characterized as
reckless. See Black’s Law Dictionary (8th ed) (defining “reckless” as “[c]haracterized by
the creation of a substantial and unjustifiable risk of harm to others and by a conscious
(and sometimes deliberate) disregard for or indifference to that risk”). While there may
be sufficient evidence to establish probable cause for a charge of second-degree child
abuse based on defendant’s decision to leave the child with her boyfriend, in my opinion
defendant’s potentially reckless conduct does not give rise to the level of intent necessary
to bind her over as a principal under the first-degree child abuse statute. Therefore,
because I believe defendant’s alleged conduct is, at most, reckless, which does not rise to
the level of first-degree child abuse, there is not, as a matter of law, probable cause to
bind defendant over on a charge of first-degree child abuse as a principal. 4

          FIRST-DEGREE CHILD ABUSE AS AN AIDER AND ABETTOR

       People v Kelly,
423 Mich 261, 278
 (1985), generally explains that there are two
forms of requisite intent under an aiding-and-abetting theory. First, a defendant may
have the criminal intent necessary to be convicted of the crime as the principal.
Id.
Second, a defendant may also be convicted of a crime under an aiding-and-abetting
theory if he or she has knowledge of a principal’s intent to commit a crime when
performing acts or giving encouragement that assisted the commission of that crime.
Id. at 278-279
. See, also, People v Burrel,
253 Mich 321, 322-323
 (1931) (explaining that,
had the defendant known of the principal’s intentions when providing his aid, he could
have been charged under an aiding-and-abetting theory); Perkins & Boyce, Criminal Law
(3d ed), p 743. However, even if a defendant aids in the principal’s resulting crime, the
4
  The prosecution also argues that defendant’s actions constituted an omission punishable
by the child abuse statute. MCL 750.136b(1)(c) defines “omission” for purposes of the
child abuse statute as “a willful failure to provide food, clothing, or shelter necessary for
a child’s welfare or willful abandonment of a child.” The prosecution argues that any
omission by a defendant that falls outside the definition of “omission” in MCL
750.136b(1)(c) can constitute first-degree child abuse. However, the inclusion of acts of
omission within the second-degree child abuse provision implies the exclusion of those
acts from the first-degree child abuse provision because the express mention in a statute
of one thing implies the exclusion of other similar things. Jennings, 446 at 142. And the
prosecution’s argument also ignores the rule that when a statute specifically defines a
given term, that definition alone controls. Addison Twp v Barnhart,
495 Mich 90, 98
(2014), quoting Tryc v Mich Veterans’ Facility,
451 Mich 129, 136
 (1996). Thus, reading
the word “omission” into the first-degree child abuse statute and giving it a different
meaning than the statutory definition violates the rules of statutory interpretation.
                                                                                         10

defendant cannot be guilty as an aider and abettor if the defendant provided an “unwitting
contribution.” Perkins & Boyce, p 740. Thus, in order to bind a defendant over under an
aiding-and-abetting theory when the defendant only had knowledge of the principal’s
intent, there must be probable cause that at the time of aiding and abetting the crime, the
defendant not only knew or had reason to know of the principal’s intentions but also
shared the principal’s purpose. See
id.

        Applying these basic elements, in my view the prosecution has not established
probable cause to show that defendant’s actions constitute aiding and abetting first-
degree child abuse because the prosecution has not shown probable cause that defendant
either (1) had the requisite intent to commit first-degree child abuse at the time that she
left the child in her boyfriend’s care or (2) knew that her boyfriend had the intent to
commit first-degree child abuse at the time that defendant left the child in his care. As to
the first form of intent, the prosecution does not argue that defendant specifically
intended to cause serious physical or mental harm to the child by leaving the child with
her boyfriend, and, as explained, defendant’s actions do not support the argument that she
had the intent required to bind her over under the first-degree child abuse statute as a
principal. As to the second form of intent, the prosecution has offered no evidence to
show that when defendant left the child with her boyfriend on the day in question, she
knew of her boyfriend’s intent to commit first-degree child abuse. In fact, there is no
evidence that defendant’s boyfriend himself had the requisite intent to commit first-
degree child abuse at that time. 5 Although defendant perhaps should have known that her
boyfriend posed a potential danger to the child, the knowledge of mere potential danger
does not sufficiently inform defendant of her boyfriend’s later-to-be-formed specific
intent, nor does knowledge of potential danger bring defendant’s purpose in line with her
boyfriend’s alleged purpose to harm the child as required by our aiding-and-abetting
jurisprudence. Therefore, the prosecution has not established probable cause to show that
defendant committed first-degree child abuse under an aiding-and-abetting theory.

       The prosecution, however, cites People v Robinson,
475 Mich 1, 6
 (2006), to
argue that to bind a defendant over on felony murder under an aiding-and-abetting theory,
the prosecution only needs to show probable cause of malice. However, that argument is
contrary to our caselaw. In People v Riley (After Remand),
468 Mich 135, 140
 (2003),
we explained that in order to convict a defendant of felony murder under an aiding-and-
abetting theory, the prosecution must prove that the defendant



5
  Indeed, there is no evidence of defendant’s boyfriend’s intent and defendant’s
knowledge of that intent beyond the prosecution’s argument that defendant should have
known that her boyfriend might pose a danger to the child, which is not the standard
under the aiding-and-abetting theory.
                                                                                         11

       (1) performed acts or gave encouragement that assisted the commission of
       the killing of a human being, (2) with the intent to kill, to do great bodily
       harm, or to create a high risk of death or great bodily harm with knowledge
       that death or great bodily harm was the probable result, (3) while
       committing, attempting to commit, or assisting in the commission of the
       predicate felony. [Emphasis added.]

Thus, to convict defendant under an aiding-and-abetting theory of felony murder, the
prosecution must still show that defendant committed, attempted to commit, or assisted in
committing the predicate felony: first-degree child abuse. Therefore, while it is true that
the prosecution in this case must establish probable cause of at least malice to fulfill the
second element under the Riley test, 6 this does not relieve the prosecution of the duty to
nonetheless establish probable cause of commission of the predicate felony (first-degree
child abuse) and its requisite intent in order to fulfill the third Riley requirement. 7
Because the prosecution is unable to establish probable cause regarding defendant’s
specific intent or knowledge of her boyfriend’s specific intent to commit first-degree
child abuse, it is my view that the trial court erred by binding defendant over on charges
of first-degree child abuse and felony murder.




6
  I note that it is questionable whether the prosecution can establish the second element of
the Riley test. It appears that defendant did not actually intend to kill or do great bodily
harm to the child in the instance underlying the charge at issue. Further, I question
whether defendant’s omission of leaving the child in the care of her boyfriend created a
high risk of death or great bodily harm with the knowledge that death or great bodily
harm was the probable result. However, because the parties were not directed to, and did
not, address this point, I will not address it at this time.

7
  Further, the prosecution misreads the Robinson majority’s opinion. While I continue to
stand by my Robinson dissent, the reason that the prosecution in Robinson had to prove
only malice is because felony murder and the underlying felony, assault with intent to do
great bodily harm less than murder, shared the same intent—i.e., malice. Thus, when the
prosecution established malice for one crime in Robinson, it also necessarily established
the intent for the other. However, in this case, the specific intent of first-degree child
abuse is a higher standard than the malice required for felony murder, see Robinson,
475 Mich at 14
, and, as noted within, the prosecution must establish both: the malice related
to felony murder and the intent required by the predicate felony.
                                                                                                               12



                                          CONCLUSION

        For these reasons, I do not believe that there is sufficient evidence to show
probable cause that defendant possessed the necessary intent to be bound over as a
principle of first-degree child abuse or under an aiding-and-abetting theory. As a result,
there is also insufficient evidence to establish probable cause that defendant committed
first-degree child abuse as the predicate felony to felony murder. Therefore, I would
reverse the judgment of the Court of Appeals and remand to the trial court with the
instruction to dismiss the first-degree child abuse and felony-murder charges stemming
from the child’s death.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         December 29, 2014
       p1226
                                                                             Clerk