Plea withdrawal; Second-degree murder by omission; Manslaughter; Malice; Felony murder by omission; First-degree child abuse; MCL 750.136b(2); People v Maison (Unpub); People v Welch (Unpub); Additional affirmative act

The court concluded that because “the facts supported a finding that defendant was guilty of the offense that he pleaded to [second-degree murder], the trial court did not abuse its discretion by denying [his] motion to withdraw his plea.” Also, it found that “the facts clearly satisfy the requirements of first-degree child abuse under MCL 750.136b(2).” Finally, it disagreed “that even if he were guilty of first-degree child abuse by omission, a felony-murder conviction would require an additional affirmative act.” The case arose from defendant’s neglect of his eight-year-old child, who died of starvation and malnutrition. He pled nolo contendere to second-degree murder. On appeal, he argued “that the trial court abused its discretion by denying his motion to withdraw his plea because first-degree child abuse and second-degree murder both require an affirmative act that seriously harmed the victim, and in this case, the facts merely indicated that the child’s death was caused by defendant’s omission or failure to act.” The court found that “the facts supported a finding that defendant was guilty of second-degree murder because there was evidence for each element of manslaughter, plus malice.” As to the elements of manslaughter, the facts and inferences “established that: (1) defendant had a legal duty to care for the child; (2) [he] knew of that duty because, in addition to it being common knowledge, CPS contacted [him] in the past regarding his care of the child; (3) [his] failure to care for the child was grossly negligent because the child was obviously extremely ill, as observed by multiple childcare and healthcare professionals, family members, and defendant himself; and (4) the child died of malnourishment caused by defendant’s neglect.” Thus, there was evidence for each manslaughter element. “There was also evidence—beyond the child’s proof of death—that supported an inference of malice. The child weighed just 31 pounds at the time of his death, despite being eight years old. He threw up frequently and would eat his own vomit and feces. He was discolored, smelled of urine, and had loose skin. He did not eat or drink for several days leading up to his death, and he had breathing problems on the night of his death. His declining health was obvious and graphic, occurring over a period of months. Defendant’s failure to feed the child or seek medical attention supported the inference that defendant intended ‘to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result.’” Thus, a sufficient factual basis supported his plea for second-degree murder. Affirmed.