PEOPLE OF MI V TRAVIS ALLEN BULMER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 19, 2000
Plaintiff-Appellant,
v
No. 226796
Eaton Circuit Court
LC No. 99-000353-FH
TRAVIS ALLEN BULMER,
Defendant-Appellee.
Before: Murphy, P.J., and Griffin and Wilder, JJ.
PER CURIAM.
The prosecution appeals by leave granted from a circuit court order affirming the district
court magistrate’s decision to bind defendant over on a charge of involuntary manslaughter,
MCL 750.321; MSA 28.553, and the circuit court’s refusal to reinstate the original charge of
second-degree murder, MCL 750.317; MSA 28.549. We affirm.
This case arises out of the death of the fifteen-month-old son of defendant’s girlfriend.
Testimony presented at the preliminary examination indicated that the child died from brain
injuries consistent with shaken baby syndrome. Following the preliminary examination, the
magistrate determined that the prosecution presented insufficient evidence of defendant’s malice
to support the second-degree murder charge.
"A magistrate's ruling that alleged conduct falls within the scope of a criminal statute is a
question of law reviewed for error, and a decision to bind over a defendant is reviewed for abuse
of discretion." People v Orzame, 224 Mich App 551, 557; 570 NW2d 118 (1997). In reviewing
the district court's decision to bind over a defendant, a circuit court may reverse only if it appears
on the record that the district court abused its discretion. Id. "An abuse of discretion is found
only where an unprejudiced person, considering the facts upon which the court acted, would say
there was no justification or excuse for the ruling." Id. "Similarly, this Court reviews the circuit
court's decision de novo to determine whether the district court abused its discretion." Id.
It is the magistrate’s duty to bind a defendant over for trial if, at the conclusion of the
hearing, it appears to the magistrate that there is probable cause to believe that a felony was
committed and that the defendant committed it. MCL 766.13; MSA 28.931; MCR 6.110(E);
People v Goecke, 457 Mich 442, 469; 579 NW2d 868 (1998). Probable cause is established by
evidence sufficient to cause a person of ordinary prudence and caution to conscientiously
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entertain a reasonable belief in the defendant’s guilt. People v Justice (After Remand), 454 Mich
334, 344; 562 NW2d 652 (1997). To establish that a crime has been committed, the prosecution
need not prove each element beyond a reasonable doubt but must present some evidence on each
element. People v Hill, 433 Mich 464, 469; 446 NW2d 140 (1989); People v Reigle, 223 Mich
App 34, 37; 566 NW2d 21 (1997). Circumstantial evidence and reasonable inferences from the
evidence may suffice. People v Terry, 224 Mich App 447, 451; 569 NW2d 641 (1997). In
determining whether the crime has been established, the magistrate is not limited to determining
whether evidence on each element has been presented. Rather, the magistrate must make his
determination after an examination of the whole matter. People v Stafford, 434 Mich 125, 133;
450 NW2d 559 (1990). Although the magistrate may weigh the credibility of the witnesses, if
the evidence conflicts or raises a reasonable doubt, the defendant should be bound over for
resolution of the questions by the trier of fact. Goecke, supra at 469-470; In re Abraham, 234
Mich App 640, 657; 599 NW2d 736 (1999).
The elements of second-degree murder are (1) a death, (2) caused by an act of the
defendant, (3) with malice, and (4) without justification or excuse. Goecke, supra at 463-464;
See also People v Bailey, 451 Mich 657, 669; 549 NW2d 325 (1996). Malice is the intent to kill,
the intent to cause great bodily harm, or the intent to do an act in wanton and willful disregard of
the likelihood that the natural tendency of such behavior is to cause death or great bodily harm.
Goecke, supra at 464. The element of malice necessary for second-degree murder reflects the
principle that criminal culpability must be tied to the actor's state of mind. Id. at 466. The
offense, however, does not require the specific intent to harm or kill. It is enough that the actor
possesses an intent to do an act that is in obvious disregard of life-endangering consequences. Id.
As an alternative way to view this mental state, malice can be implied when a defendant does an
act with a high probability that it will result in death and does it with a base antisocial motive and
with wanton disregard for human life. Id. at 467.
The prosecution contends that in reaching his conclusion that insufficient evidence
supported the element of malice, the magistrate erred by ignoring the forensic pathologist’s
testimony and instead focusing solely on defendant's statement to police that he gently shook the
child. We disagree. Although the forensic pathologist did testify that the child's injuries were
inflicted by another and were not the result of an accidental event, she was then equivocal in her
testimony regarding the extent of action necessary to cause such injuries. As to causation, her
testimony included a statement that "[t]he injuries to the head most likely occurred with a
shaking, a violent shaking, and there may have been impact during the course of this shaking of
the forehead" (emphasis added). She went on to describe the amount of force that would have to
be applied to cause the types of injuries, stating, "[i]t's a violent shaking that requires—a gentle
shaking doesn't typically cause these types of injuries. And often it's a violent shaking that is
sustained for—for typically over a minute" (emphasis added). We agree with the circuit court
that in light of the equivocal nature of the pathologist's testimony, the magistrate did not abuse
his discretion in determining that the evidence could not support an inference that defendant
possessed the requisite malice.
The prosecution also argues that because defendant stated that he only shook the baby
gently, while the pathologist testified that the injuries she observed are not typically caused by a
gentle shaking, the magistrate was required to bind defendant over for the jury’s resolution of this
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factual issue. However, we do not agree that the magistrate’s decision against bindover on the
second-degree murder charge was based on defendant’s statement that he only shook the baby
gently. We believe, rather, that the magistrate's conclusion was based on a finding that
presuming defendant's shaking of the baby was more violent than he described, the totality of the
evidence was not sufficient to provide probable cause that defendant acted with wanton disregard
of human life or a base antisocial motive, or that defendant knew that the natural consequence of
his act would be great bodily harm or death. Id.
In defendant's statement to police, he indicated that at no time was he angry with or
frustrated by the baby, rather he was merely trying to help the baby who was coughing forcefully.
Defendant stated that he did not know what the result of his shaking would be, and his
description of the subsequent events indicates that he responded immediately and appropriately
when he realized moments later that the baby was in distress. We are not convinced that the
magistrate’s determination to bind defendant over on a charge of involuntary manslaughter after
his examination of the whole matter constituted an abuse of discretion. Stafford, supra at 133;
Orzame, supra at 557.
Affirmed.
/s/ William B. Murphy
/s/ Richard Allen Griffin
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