PEOPLE OF MI V LAWRENCE B SCHAUB
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
November 15, 2002
9:10 a.m.
Plaintiff-Appellee,
v
No. 231009
Macomb Circuit Court
LC No. 00-001037-AR
LAWRENCE B. SCHAUB,
Defendant-Appellant.
Updated Copy
February 14, 2003
Before: O'Connell, P.J., and Griffin and Hoekstra, JJ.
HOEKSTRA, J.
Defendant's appeal is before us by an order of the Supreme Court that, in lieu of granting
leave to appeal, remanded the case to this Court for consideration as on leave granted. People v
Schaub, 463 Mich 910 (2000). The issue presented on appeal is, in essence, whether the
prosecution introduced sufficient evidence at the preliminary examination to require defendant to
stand trial on the charge of child abandonment, MCL 750.135. After taking testimony at the
preliminary examination, the district court dismissed the charge. The prosecution appealed to
the circuit court and that court reversed the order of the district court and reinstated the charge
against defendant. On application for interlocutory leave to appeal, this Court denied leave.
People v Schaub, unpublished order of the Court of Appeals, entered October 9, 2000 (Docket
No. 229502). After consideration of the merits of the appeal, we agree with defendant and
reverse the circuit court's order and remand the matter for further proceedings.
The charge against defendant of child abandonment stems from an allegation that
defendant transferred possession of his ten-month-old daughter to an undercover police officer
for financial gain. At the preliminary examination, the prosecution introduced testimony from
defendant's daycare provider, who had contacted the police after defendant asked her if she knew
anyone who wanted to buy his youngest child, and a police officer, who had posed as a well-todo real estate broker that desired to obtain a baby for his childless "son" and "daughter-in-law."
These witnesses testified that defendant willingly agreed to sell his daughter for $60,000 without
verifying the background of the prospective buyer and his "son" and "daughter-in-law" and to
relinquish all his parental rights to the child. After negotiating the terms and conditions of the
"sale," defendant gave his daughter to a police officer posing as the buyer's son and received in
exchange $10,000 in cash and the promise of an additional $50,000 within two days. Defendant
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also reduced to writing the financial terms of the agreement. The undercover police officer
"buyer" testified that the child was never without care, having been transferred directly from
defendant's presence to the buyer's "son." In addition, defendant informed them of the child's
food requirements and discussed feeding and other procedures.
After hearing the witnesses' testimony and the arguments of the parties, the district court
dismissed the child abandonment charge against defendant. The district court found that the
prosecution had not met its burden of proof to show evidence of the elements of child
abandonment. Specifically, the district court found that the term "wholly abandoned" in the
child abandonment statute indicated placing the child in a situation where there is no one to care
for it, and concluded that at no time was the child placed in a situation where she was without
care.
The prosecution appealed as of right to the circuit court, and that court reversed the
district court's order dismissing the child abandonment charge. The circuit court found that the
district court erred in its interpretation of the child abandonment statute. According to the circuit
court, "intent to wholly abandon" concerns only the defendant's conduct and the defendant's
actions "must be analyzed without reference to the likelihood or unlikelihood that his child
would befall harm at the hands of the prospective parents." The circuit court concluded that the
prosecution presented sufficient evidence on that element to bind over defendant for trial. In
addition, the circuit court found that the element of exposure was adequately shown by
defendant's failure to protect his daughter from danger by failing to make reasonable inquiries
into the moral and financial fitness of the prospective parents.
On appeal, defendant argues that the circuit court erred in reversing the district court's
dismissal of the child abandonment charge because the circuit court's interpretation of the
elements of child abandonment was incorrect. Specifically, the parties dispute whether the
evidence established the elements of (1) exposure and (2) intent to wholly abandon. Ordinarily,
the decision of the district court on a motion to bind over is reviewed for an abuse of discretion.
People v Stone, 463 Mich 558, 561; 621 NW2d 702 (2001). However, here the decision to deny
binding over defendant involved a determination by the district court that defendant's alleged
conduct did not fit within the scope of the child abandonment statute, which raises a question of
statutory interpretation that we review de novo. Id.
At the time that the alleged offense occurred, the child abandonment statute, MCL
750.135, provided:
Any father or mother of a child under the age of 6 years, or any other
person who shall expose such child in any street, field, house or other place, with
intent to injure or wholly to abandon it, shall be guilty of felony, punishable by
imprisonment in the state prison not more than 10 years.
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MCL 750.135 has remained basically unchanged since it was first interpreted in 1858, in
Shannon v People, 5 Mich 71 (1858).1 We are aware of no other precedential Michigan case that
has addressed the statute. In Shannon, our Supreme Court explained that once the person that is
alleged to have abandoned the child is found to be either the child's parent or guardian, there are
two additional elements of the crime of child abandonment. These elements are (1) exposing the
child and (2) the intent to wholly abandon the child. Id. at 81, 89. According to the Shannon
Court, "to 'expose' the child is the substantive act—the 'intent to abandon' is the secondary
ingredient; both must concur to complete the offense." Id. at 89.
Here, with respect to whether defendant intended to wholly abandon the child, we agree
with the circuit court that sufficient evidence was introduced to satisfy that element of the
charged offense. The proofs showed that defendant sold his child to an undercover police officer
for $10,000 cash and a note for $50,000, with the understanding that defendant did not retain any
ability to visit the child or exercise his parental rights. The police officer testified that defendant
was informed and agreed that the police officer's "family" was planning to raise the child as their
own, without any intervention by defendant. From this evidence it is reasonable to conclude that
defendant intended to "renounce all care or protection of" the child. See id. Although defendant
1
The statute, as it read in 1858, stated:
"If the father or mother of any child under the age of six years, or any
person to whom such child shall have been confided, shall expose such child in
any street, field, house, or other place, with the intent wholly to abandon it, he or
she shall be punished by imprisonment in the state prison not more than ten
years." [Shannon, supra at 81.]
In relevant part, the statute currently reads:
A father or mother of a child under the age of 6 years, or another
individual, who exposes the child in any street, field, house, or other place, with
intent to injure or wholly to abandon the child, is guilty of a felony, punishable by
imprisonment for not more than 10 years. [MCL 750.135(1).]
Further, in 2000, the statute, MCL 750.135, was amended to add the following section
encouraging parents of unwanted newborns to deliver them to emergency service providers
instead of abandoning them:
(2) Except for a situation involving actual or suspected child abuse or
child neglect, it is an affirmative defense to a prosecution under subsection (1)
that the child was not more than 72 hours old and was surrendered to an
emergency service provider under chapter XII of the probate code of 1939, 1939
PA 288, MCL 712.1 to 712.20. A criminal investigation shall not be initiated
solely on the basis of a newborn being surrendered to an emergency service
provider under chapter XII of the probate code of 1939, 1939 PA 288, MCL 712.1
to 712.20.
Emergency service providers are defined in subsection 3 of the statute, MCL 750.135(3).
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asked for the address where the child would be located, the record reveals that the reason that
defendant requested that information was to cover up the sale, if the child's mother returned from
Texas and wanted to see her. It is clear from the evidence that defendant did not intend to
participate in the child's life after the sale. Therefore, we conclude that the prosecution's proofs
established the element that defendant intended to wholly abandon his daughter.
However, we conclude that the evidence presented did not establish the element of
exposure.2 With regard to exposure, the Shannon Court stated:
The connection in which this section stands in our statute, in the chapter
entitled, "Of Offenses against the Lives and Persons of Individuals," as well as the
severity of the punishment, we think very clearly indicate that the exposure
contemplated by this section must be such as may subject the child to hazard of
personal injury—such as may peril the life or health of the child, or produce
severe suffering or serious bodily harm; and, hence, that to leave a child, with the
intent wholly to abandon it, "in a house (or other place) where it would be certain
to be cared for," would not constitute the exposure contemplated by the statute.
2
Although the dissent states that "the Shannon Court's definition of the term 'expose' is dicta,"
post at ___, we disagree. In People v Higuera, 244 Mich App 429, 437-438; 625 NW2d 444
(2001), this Court explained:
Black's Law Dictionary (7th ed) defines obiter dictum as "[a] judicial
comment made during the course of delivering a judicial opinion, but one that is
unnecessary to the decision in the case and therefore not precedential (though it
may be considered persuasive)." The Michigan Supreme Court has declared,
however, that " '[w]hen a court of last resort intentionally takes up, discusses and
decides a question germane to, though not necessarily decisive of, the
controversy, such decision is not a dictum but is a judicial act of the court which it
will thereafter recognize as a binding decision.' " Detroit v Michigan Public
Utilities Comm, 288 Mich 267, 299-300; 286 NW 368 (1939), quoting Chase v
American Cartage Co, Inc, 176 Wis 235, 238; 186 NW 598 (1922). A decision of
the Supreme Court is authoritative with regard to any point decided if the Court's
opinion demonstrates "application of the judicial mind to the precise question
adjudged, regardless of whether it was necessary to decide the question to decide
the case." People v Bonoite, 112 Mich App 167, 171; 315 NW2d 884 (1982).
We believe that the Shannon Court's analysis with respect to the term "expose" in the statute
under which the defendant was charged is authoritative. After finding one exception decisive to
the cause, the Court continued to address, discuss, and decide other issues that were germane to
the controversy. As the Shannon Court itself stated, "there are other important questions
presented by the exceptions . . . ." Shannon, supra at 82, 88. We believe that the Shannon
Court's analysis is binding. Higuera, supra at 437.
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We can not suppose the legislature intended to inflict so severe a punishment, to
protect "persons not parents or guardians from being burdened with the care and
custody of children," if they choose to assume that care and custody; or, in other
words, from an unexpected demand upon their benevolence, from which they
might rid themselves at any time by applying to the officers having charge of the
poor. Such severity, for such a purpose, would be unprecedented in the history of
legislation. On the other hand, it is perfectly clear that no actual injury need
ensue from the exposure. Id. at 90.
The Court then looked further at the Legislature's intent in passing the child abandonment
statute, concluding that "[t]he object of the statute obviously was to meet the exposure in injury
in limine; to prevent the hazard of injury, and to punish as a crime the act creating the hazard."
Id. at 91. The Court continued:
The question, therefore, upon this point, is simply this: Did the acts of the
party leaving or abandoning the child, viewed in connection with the time, place,
and all the accompanying and surrounding circumstances, subject the child to the
hazard of such personal injury? If so, this is an exposure. . . .We do not intend, by
this, to say that a bare possibility of injury would constitute the exposure; but the
only safe and practical rule upon this point, we think, is this: If, from the time,
place, and manner of leaving the child—its age, dress, the state of the weather,
and all the circumstances surrounding and accompanying the transaction—the
jury shall believe that there was reasonable ground to apprehend, or fear, that such
injury might thereby happen to the child, then, if accompanied with the intent
wholly to abandon, it is an exposure within the statute, and the crime is complete;
but if, judging from the like premises, there was no reasonable ground to fear or
apprehend that such injury might occur, then the exposure required by the statute
did not exist. This may be rendered more definite by saying, that if the child be
left at such a time, in such a place, and under such circumstances, as would render
a parent, or other person (to whom it is confided) of ordinary prudence and
humanity, reasonably apprehensive of such injury to the child, then the hazard
may be said to exist, and it is an exposure within the statute.
*
*
*
No parent, or other person entrusted with the custody and protection of
helpless infancy, can be permitted to divest himself of the responsibility which this
trust imposes, until that custody and protection have been committed to or
assumed by other hands. And if, in the attempt to throw off the responsibility, he
abandons the child, he must be required first to see that there is at least a
reasonable certainty that some other person will assume it before the risk of
injury shall occur from the abandonment; he must be held to the highest degree of
diligence. The safety of a human being depends upon his acts. The law extends
its protection only to acts which are legal; he is in the performance of an illegal
act—he has renounced the protection of the law, and must look to his own acts
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and his own diligence alone to protect him from criminal responsibility. [Id. at
91-92, 95-96 (emphasis supplied).]
From Shannon, it is apparent that the child abandonment statute was implemented to
prevent young children from being left unattended, with the intent to wholly abandon them,
without some arrangements being made to ensure the children's safety and minimize the hazards
of personal injury from the abandonment. Although society may have changed since 1858, the
statute has remained basically the same, and we are bound by our Supreme Court's interpretation
of the statute. See People v Beasley, 239 Mich App 548, 556; 609 NW2d 581 (2000). Here,
unlike the circuit court, we conclude that defendant's minimal inquiry into the moral and
financial background of the police officer and his "family" cannot be construed as "exposing" the
child to the possibility of personal injury as anticipated under this statute. The testimony at the
preliminary examination demonstrated that defendant handed over his child to a person to care
for her. Under these circumstances, there is no basis on which to find that the child would be left
without care, putting the child at risk of personal injury from abandonment. Although
defendant's actions were repugnant, the evidence does not support the required statutory element
of exposure as interpreted by our Supreme Court in Shannon. Therefore, the circuit court's
reversal of the district court's order dismissing the charge against defendant is reversed.
In response to this case and the publicity it generated, the Legislature enacted with
unusual quickness a specific criminal statute that prohibits the sale or purchase of people, MCL
750.136c.3 While the ex post facto guarantees of our state (Const 1963, art 1, § 10) and federal
(US Const, art I, § 10) constitutions bar defendant's prosecution under this new criminal
provision, others who commit the proscribed conduct after the effective date of the act are
subject to the new criminal penalties.
In addition, defendant may have committed a common-law felony by his attempt to sell
his child. In particular, MCL 750.505 provides:
Any person who shall commit any indictable offense at the common law,
for the punishment of which no provision is expressly made by any statute of this
state, shall be guilty of a felony, punishable by imprisonment in the state prison
3
MCL 750.136c provides:
(1) A person shall not transfer or attempt to transfer the legal or physical custody of an
individual to another person for money or other valuable consideration, except as otherwise
permitted by law.
(2) A person shall not acquire or attempt to acquire the legal or physical custody of an
individual for payment of money or other valuable consideration to another person, except as
otherwise permitted by law.
(3) A person who violates this section is guilty of a felony punishable by imprisonment
for not more than 20 years or a fine of not more than $100,000.00, or both.
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not more than 5 years or by a fine of not more than $10,000.00, or both in the
discretion of the court.
See, generally, People v Coutu (On Remand), 235 Mich App 695, 704-707; 599 NW2d 556
(1999); People v Cunningham, 201 Mich App 720, 722-723; 506 NW2d 624 (1993).
Because defendant has not been charged with committing a common-law felony and the
prosecutor has not raised the issue, we express no opinion on the question whether attempted
child selling was in indictable offense at common law. Rather, we note that our reversal is
without prejudice to the filing of common-law felony charges in the event it is determined that
defendant's actions were indictable at common law.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
Griffin, J., concurred.
/s/ Joel P. Hoekstra
/s/ Richard Allen Griffin
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