PEOPLE OF MI V JAMES ANTHONY HILL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 18, 2008
Plaintiff-Appellee,
v
No. 276205
Kent Circuit Court
LC No. 06-005827-FH
JAMES ANTHONY HILL,
Defendant-Appellant.
Before: O’Connell, P.J., and Borrello and Gleicher, JJ.
PER CURIAM.
Following a jury trial, defendant appeals as of right his conviction of assault with intent
to do great bodily harm less than murder, MCL 750.84. The trial court sentenced defendant to
one year in jail, to be served at boot camp, and three years of probation. We reverse and remand.
This appeal is being decided without oral argument pursuant to MCR 7.214(E).
Defendant argues on appeal that the trial court committed reversible error when it
instructed the jury regarding the meaning of great bodily harm. We review jury instructions de
novo. People v Milton, 257 Mich App 467, 475; 668 NW2d 387 (2003). Great bodily harm is
defined as “a physical injury that could seriously and permanently harm the health or function of
the body.” CJI2d 17.7(4). In giving its instruction, the trial court stated the following, among
other explanations:
Frankly, the law says, if someone is rendered unconscious or semi-conscious,
that’s enough. But any significant injury or impairment of health or body
function is sufficient.
We have reviewed the entire explanation of great bodily harm given by the trial court and
find that the instruction could not have misled the jury except for this statement regarding the
victim’s state of unconsciousness or semi-consciousness being sufficient to establish intent to do
great bodily harm. In overruling defendant’s objection to the instruction, the trial court cited
People v Brown, 97 Mich App 606, 611; 296 NW2d 121 (1980), which held that evidence was
sufficient to establish “a serious or aggravated injury” where the victim was rendered
unconscious by a blow to the head, the victim’s head hit concrete as he fell, and the victim
suffered cuts to the face, an eye injury, and a bruised neck. It should be noted that the Brown
court did not find that unconsciousness or semi-unconsciousness on its own was sufficient to
establish a serious injury, but that the victim’s constellation of injuries was sufficient. The trial
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court’s instruction that the law said that unconsciousness or semi-consciousness was a serious
injury equal to great bodily harm was inaccurate and more importantly, misleading to the jury.
Further, this Court has held that a trial court may not give examples that remove an
element from the jury’s consideration. Where a trial court uses an example, the court must
“‘clearly indicate’” that the example is only an example and that the jury must follow the
instructions as a whole to determine guilt or innocence. People v Edwards, 206 Mich App 694,
696; 522 NW2d 727 (1994), quoting People v Shepherd, 63 Mich App 316, 322; 234 NW2d 502
(1975). In Shepherd, supra, this Court stated: [T]he jury is likely to give undue weight to
examples, since they are easier to comprehend, and it may simply compare the defendant’s
conduct with the example. To prevent these adverse effects, the trial judge must clearly indicate
that the examples are only examples, and that the jury must determine guilt or innocence by
following the jury instructions as a whole. Id. at 696-697; (internal citations omitted). In
Edwards, at issue was whether a mother’s act in leaving a bucket of boiling hot water where it
was easily accessible to her children was reckless under a child abuse statute. The trial court
stated in its jury instruction that leaving a bucket of hot water in an area accessible to small
children was reckless. Id. at 695-696. This Court determined that using the defendant’s conduct
as an example of a reckless act took the determination of one of the elements of the offense away
from the jury and reversed the defendant’s conviction. Id. at 697.
Here, the victim testified that he was thrown to the ground, did not remember whether he
was kicked in the head, and was wobbly when he tried to get up. Others testified that the victim
was kicked in the head after he was thrown to the ground. It was implicit in this testimony that
the victim was at least semi-conscious for a moment. Therefore, as in Edwards, the trial court’s
example too closely mirrored the facts of the case and took away the jury’s ability to make a
critical determination in the case. The trial court also did not follow the requirement that it
explain that examples were just examples, and that the jury instructions as a whole were to be
followed.
This error is not harmless where, but for the directions to jurors, which almost mandated
a finding of intent to do great bodily harm, the jury may have found defendant guilty of assault
and battery. As previously stated, the trial court also failed to instruct the jury that examples are
nothing more than an illustration not intended as a substitute for the requirement that the jury
must find each element of the crime beyond a reasonable doubt by considering the court’s
instructions as a whole. Thus, we conclude, as we did in Edwards, supra, [that] “. . . the court’s
‘example’ made a determination regarding one of the elements of the charged offense.” Id. at
697. Accordingly, we reverse defendant’s conviction and remand the matter to the trial court for
a new trial.
In light of our decision on the error of the trial court in giving its “example” during the
reading of the jury instructions, it is unnecessary to address defendant’s remaining issue on
appeal.
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Reversed and remanded for a new trial. We do not retain jurisdiction.
/s/ Peter D. O’Connell
/s/ Stephen L. Borrello
/s/ Elizabeth L. Gleicher
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