PEOPLE OF MI V PEGGY GARZA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
May 6, 1997
Plaintiff-Appellee,
v
No. 192270
Sanilac Circuit Court
LC No. 95-004361-FH
PEGGY GARZA,
Defendant-Appellant.
Before: Wahls, P.J., and Hood and Jansen, JJ.
PER CURIAM.
A jury convicted defendant of four counts of first-degree child abuse, MCL 750.136b(2); MSA
28.331(2)(2), one count of third-degree child abuse, MCL 750.136b(4); MSA 28.331(2)(4), three
counts of fourth-degree child abuse, MCL 750.136b(5); MSA 28.331(2)(5), one count of assault with
intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and three counts of
assault and battery, MCL 750.81; MSA 28.276. The charges arose out of defendant’s alleged
conduct toward her stepdaughters between October of 1994 and July of 1995. The trial court imposed
sentences of seven to fifteen years’ imprisonment for the first-degree child abuse convictions, five to ten
years’ imprisonment for the assault with intent to do great bodily harm conviction, one year jail terms for
the third- and fourth-degree child abuse convictions, and ninety day jail terms for the assault and battery
convictions. Defendant appeals as of right. We reverse defendant’s conviction for first-degree child
abuse with regard to Count VII of the complaint, remand for entry of a modified order of judgment of
conviction of third-degree child abuse and resentencing with regard to this count, and affirm defendant’s
other convictions and sentences.
Defendant first claims that the trial court abused its discretion when it disallowed defense
counsel’s questions regarding alleged prior inconsistent statements made by one complainant during her
probate court testimony. A party whose evidence is excluded must make an offer of proof to preserve
the issue for appeal. MRE 103(a)(2); People v Stacy, 193 Mich App 19, 31; 484 NW2d 675
(1992). In this case, defense counsel stated that she “would like to make an offer of proof,” but failed
to state on the record or otherwise make known to the court the substance of the excluded testimony.
Defense counsel merely stated that the complainant was “not giving the same story as she had in
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Probate Court,” and that it was necessary for the jury to hear what the complainant had said in Probate
Court. It is not apparent from the record what the complainant’s testimony had been in Probate Court,
what questions defense counsel would have asked, or how their omission prejudiced defendant.
Accordingly, this issue has not been preserved for review. Stacy, supra, p 31. Furthermore, in light of
the overwhelming evidence of defendant’s guilt, any error would not require reversal of the jury verdict.
MCL 769.26; MSA 29.1096; see People v Mateo, 453 Mich 203, 221; 551 NW2d 891 (1996).
Defendant next contends that the prosecution failed to introduce sufficient evidence of first
degree child abuse. We agree in part and disagree in part. When reviewing a claim regarding the
sufficiency of the evidence, we examine the evidence in a light most favorable to the prosecution to
determine whether a rational trier of fact could find the essential elements of the crime proved beyond a
reasonable doubt. People v Baker, 216 Mich App 687, 689; 551 NW2d 195 (1996). A person
commits first-degree child abuse if she knowingly or intentionally causes serious physical or serious
mental harm to a child. MCL 750.136b(2); MSA 28.331(2)(2). Defendant disputes only the “serious
physical harm” element of the crime.
In interpreting penal statutes, courts cannot expand the scope of the statutory prohibition.
People v Reeves, 448 Mich 1, 8; 528 NW2d 160 (1995). The courts’ construction of the statutory
language must further the legislative intent and purpose. Id. Here, the statute defines “serious physical
harm” to mean “an injury of a child’s physical condition or welfare that is not necessarily permanent but
constitutes substantial bodily disfigurement, or seriously impairs the function of a body organ or limb.”
MCL 750.136b(1)(e); MSA 28.331(2)(1)(e). In comparison, third-degree child abuse occurs where a
person “knowingly or intentionally causes physical harm to a child.” MCL 750.136b(4); MSA
28.331(2)(4). The statute defines “physical harm” as “any injury to a child’s physical condition.” MCL
750.136b(1)(d); MSA 28.331(2)(1)(d). Our research has uncovered no case addressing the severity
of injury required to support a conviction for first-degree, as opposed to third-degree, child abuse.
Defendant argues that case law interpreting similar language in the no-fault insurance statute
should be viewed as instructive in construing the requirement of “serious physical injury” in the child
abuse statute. Under MCL 500.3135; MSA 24.13135, an automobile driver or owner is liable in tort
for noneconomic damages “only if the injured person has suffered death, serious impairment of body
function, or permanent, serious disfigurement.” This language is facially similar to the definition of
serious physical injury in the child abuse statute, MCL 750.136b(1)(e); MSA 28.331(2)(1)(e), as one
that “seriously impairs the function of a body organ or limb.”
Statutes are in pari materia when they relate to the same person or thing, to the same class of
persons or things, or have the same purpose or act. People v Pitts, 216 Mich App 229, 233; 548
NW2d 688 (1996). One act is not in pari materia with another, even if it incidentally refers to the same
subject, if the scope and aim of the two are distinct and unconnected. Id. Whereas the no-fault statute
deals with negligently caused injuries in a civil context, the child abuse statute deals with intentionally
caused injuries in a criminal context. In addition, the State’s interest in compensating victims of
automobile accidents for noneconomic losses is substantively d
ifferent than its interest in protecting
children from intentional abuse. Because the scope and aim of the two statutes are distinct and
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unconnected, they should not be read in pari materia. Id. We need not consider cases interpreting the
no-fault statute when construing the child abuse statute. See Reeves, supra, pp 14-15; People v
Young, 418 Mich 1, 13; 340 NW2d 805 (1983).
In this case, defendant’s convictions for first-degree child abuse arose out of incidents in which
she intentionally burned the complainant’s hand with a clothes iron (Count I), pushed the same
complainant down a flight of stairs and cut her face and hand with a utility knife (Count III), cut her hand
across the knuckles with a butcher knife (Count IV), and hit her with a meat tenderizer mallet (Count
VII). When the evidence is viewed in a light most favorable to the prosecution, the severe burns and
cuts on the complainant’s hands and face and the black eyes and bruises which gave rise to Counts I, II,
and IV of the complaint were sufficient to satisfy the “serious physical injury” element of first-degree
child abuse. The injuries certainly would have impaired the complainant’s use of her limbs for several
weeks after they were inflicted, in addition to resulting in substantial disfigurement. See MCL
750.136b(1)(e); MSA 28.331(2)(1)(e).
However, the evidence introduced with regard to the incident with the meat tenderizer mallet
was insufficient to support defendant’s conviction for first-degree child abuse on Count VII of the
complaint. Serious physical injury must result in substantial disfigurement or serious impairment of a
bodily function or limb. MCL 750.136b(1)(e); MSA 28.331(2)(1)(e). Although bruising at the time of
the injury can be inferred from the imprints that remained on the complainant’s arm at the time the
photographs were taken, the complainant never testified as to the severity of her injuries from being hit
with the wooden mallet. She stated only that defendant hit her on the arm and head with the tenderizer
and identified photographs showing a pattern of dots in two places on her arm. The other stepdaughter
testified only that she saw “marks” on the complainant’s arm and at her hairline from the blows. There
was no testimony regarding the effect of the injury on the complainant’s use of her arm. The marks on
her arm and head were gone at the time of trial. Therefore, there was no evidence establishing that the
injury was a serious physical injury sufficient to support defendant’s conviction for first-degree child
abuse with regard to Count VII.
Although the evidence was insufficient to support a conviction for first-degree child abuse with
regard to Count VII, the jury necessarily concluded that the prosecution proved the elements of third
degree child abuse when it convicted defendant of first-degree child abuse. See MCL 750.136b(2)
and (4); MSA 28.331(2)(2) and (4). In addition, the evidence of physical injury was sufficient to
support a conviction of third-degree child abuse. Therefore, we remand the case for entry of a
judgment of conviction of third-degree child abuse and resentencing on this count. People v
Hoffmeister, 394 Mich 155, 162; 229 NW2d 305 (1975).
Finally, defendant contends that the court abused its discretion in sentencing her to seven to
fifteen years’ imprisonment for the first-degree child abuse convictions. We disagree. A trial court
abuses its discretion when it imposes a sentence that is not proportional to the seriousness of the matter.
People v Houston, 448 Mich 312, 319; 532 NW2d 508 (1995).
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It is apparent from the sentencing transcript that the court considered only permissible factors in
determining defendant’s sentence.
The sentencing court properly considered the severity of the
crime, the circumstances surrounding defendant’s criminal behavior, the effect of defendant's crime on
her victims, the protection of society, the State’s interest in deterrence, and the necessity of disciplining
the wrongdoer. People v King, 158 Mich App 672, 679-680; 405 NW2d 116 (1987); People v
Ross, 145 Mich App 483, 495; 378 NW2d 517 (1985). In addition, the court’s comments indicate
that it balanced defendant's lack of a criminal history against these factors in declining to impose the
statutory maximum. See People v Cervantes, 448 Mich 620, 632; 532 NW2d 831 (1995)
(Cavanagh, J.); People v Hughes, 160 Mich App 117, 120; 407 NW2d 638 (1987). After reviewing
the record, we believe that the sentences imposed by the trial court reflect the seriousness of the matter,
and do not violate the principle of proportionality. Houston, supra, p 319.
We reverse defendant’s conviction for first-degree child abuse on Count VII of the complaint
and remand for entry of a modified judgment of conviction for third-degree child abuse and for
resentencing with regard to that count. Defendant’s other convictions and sentences are affirmed. We
do not retain jurisdiction.
/s/ Myron H. Wahls
/s/ Harold Hood
/s/ Kathleen Jansen
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