PEOPLE OF MI V GORDON GRAHAMLATTA WELLS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 14, 2010
Plaintiff-Appellee,
v
No. 293182
Oakland Circuit Court
LC No. 2008-220867-FH
GORDON GRAHAMLATTA WELLS,
Defendant-Appellant.
Before: ZAHRA, P.J., and TALBOT and METER, JJ.
PER CURIAM.
Defendant appeals as of right from his conviction by a jury of third-degree child abuse,
MCL 750.136b(5). The trial court sentenced him to two years’ probation and 90 days in jail.
We affirm.
Defendant claims that the prosecutor presented insufficient evidence to support the
conviction. We review insufficiency claims de novo. People v McGhee, 268 Mich App 600,
622; 709 NW2d 595 (2006). We review the evidence in the light most favorable to the
prosecutor “to determine whether the evidence would justify a rational jury’s finding that the
defendant was guilty beyond a reasonable doubt.” Id. Questions concerning witness credibility
are to be resolved by the trier of fact. People v Givans, 227 Mich App 113, 124; 575 NW2d 84
(1997).
At the time of the offense, MCL 750.136b(5) stated, in relevant part, that “[a] person is
guilty of child abuse in the third degree if the person knowingly or intentionally causes physical
harm to a child.”1 Defendant contends that the prosecutor presented insufficient evidence
1
MCL 750.136b(5) has since been amended and now reads:
(5) A person is guilty of child abuse in the third degree if any of the
following apply:
(a) The person knowingly or intentionally causes physical harm to a child.
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regarding the issue of intent. He contends that the prosecutor merely showed that defendant
spanked the child “on the bottom over his clothes.” He cites MCL 750.136b(9), which states that
“[t]his section does not prohibit a parent or guardian . . . from taking steps to reasonably
discipline a child, including the use of reasonable force.” Defendant claims that “[b]ruising
exclusively on the buttocks as a result of one act of discipline does not constitute sufficient
evidence from which a rational jury could reasonably conclude beyond a reasonable doubt that
[defendant] intended to harm [the child].”
In People v Sherman-Huffman, 241 Mich App 264, 266; 615 NW2d 776 (2000), the
Court stated that a third-degree child-abuse conviction under the pre-amendment statute required
proof “that [the] defendant subjectively desired or knew that the prohibited result would occur”
(emphasis added). The Court stated:
[D]efendant testified that the spankings were hard enough to cause a blood clot
that was in her daughter’s nose from an earlier nosebleed to dislodge, and that her
nose bled for a short time. Moreover, the bruising to her daughter was sufficient
to raise the suspicion of her daughter’s teacher, a child protective services
investigator, a police officer, and an emergency room physician. Defendant
contends that her daughter bruises easily because of her asthma medication;
however, defendant certainly was aware of this before spanking her. At the very
least, defendant’s decision to spank her daughter with enough force to actually
cause substantial bruising and dislodge a blood clot from her nose, when viewed
in a light most favorable to the prosecution, supports the trial court’s conclusion
that defendant possessed the requisite specific intent to harm her child. [Id. at
266-267.]
Here, the child testified that defendant spanked him more than ten times during the
incident. He testified that his buttocks were so sore that he had to sit on his knees for the rest of
the day. There was evidence that defendant told the child to sit on his knees because of the pain
in the child’s buttocks. The child’s mother testified that she “wanted to throw up” when she saw
the child’s buttocks after the spanking. The nurse who examined the child testified that she had
to work to control the outward expression of her feelings when she saw the child’s buttocks
because she had “never seen anything like it” in 19 years of nursing. She stated: “The bruising that
I saw was a week old and it was consistent with what week old bruising would be as far as color,
it was brownish, purple, yellow, green but the depth of this bruising I had never seen before on
soft tissue.” The prosecutor introduced photographs of the bruising and this Court has reviewed
them; the photographs depict extensive bruising over the child’s buttocks.
(b) The person knowingly or intentionally commits an act that under the
circumstances poses an unreasonable risk of harm or injury to a child, and the act
results in physical harm to a child.
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The victim’s sister testified that the victim was screaming and crying during the incident
and that this lasted about five to ten minutes. The victim testified that defendant apologized to
him after the hitting, and he indicated that he believed that defendant told him not to talk about
the incident. There was evidence that defendant admitted to taking out his anger on his son and
evidence that he told his son “he would never do it again.”
As in Sherman-Huffman, 241 Mich App at 267, the extent of the bruising in this case,
along with the pain experienced by the child and the evidence of defendant’s consciousness of
guilt, adequately supported the jury’s finding regarding the element of intent or knowledge. We
note that “[c]ircumstantial evidence and reasonable inferences arising from that evidence can
constitute satisfactory proof of the elements of a crime.” People v Allen, 201 Mich App 98, 100;
505 NW2d 869 (1993). Moreover, “[a]n actor's intent may be inferred from all of the facts and
circumstances . . . and because of the difficulty of proving an actor's state of mind, minimal
circumstantial evidence is sufficient.” People v Fetterley, 229 Mich App 511, 517-518; 583
NW2d 199 (1998). We find no basis for reversal.
Defendant next contends that an error requiring reversal occurred when the victim’s sister
testified about an “improper other act” committed by defendant. This issue is unpreserved and is
therefore reviewed under the plain-error doctrine. People v Borgne, 483 Mich 178, 196; 768
NW2d 290 (2009), amended on reh 485 Mich 686 (2009). To warrant reversal, there must have
been a clear or obvious error that affected the outcome of the proceedings. Id. Moreover, the
error must have resulted in the conviction of an actually innocent person or seriously affected the
fairness, integrity or reputation of judicial proceedings. Id. at 197.
The victim’s sister testified that, several days after the spanking, she and defendant and
the victim were in the checkout line at a grocery store when she said “move it” to the victim.
She stated that, after they left the store, defendant reprimanded her and said, “I’m going to smack
you so hard . . . .” She also testified that he said, “I want you the [f--k] out of my house . . . .”
We find that the sister’s testimony does not require reversal, for two separate reasons.
First, defense counsel raised the issue of the grocery-store incident as a matter of trial strategy.
He argued in his opening statement that after the grocery-store incident, the children’s mother
decided to file a complaint against defendant for his alleged abuse of the sister, and only after
this was unsuccessful did she come to the conclusion that the brother had been abused. Defense
counsel was trying to impugn the mother’s credibility and suggest that she was “out to get”
defendant in any way she could. After the prosecutor elicited testimony about the grocery-store
incident on direct examination, defense counsel delved into it and its aftermath in greater detail
and further expounded on his theory in his closing statement.
Because defendant himself raised the issue, we decline to find a clear or obvious error in
this case. See People v Knapp, 244 Mich App 377-378; 624 NW2d 227 (2001).
Secondly, given the evidence of extensive bruising, pain, and consciousness of guilt on
the part of defendant, we cannot conclude that the testimony regarding the grocery-store incident
affected the outcome of the proceedings. Borgne, 483 Mich 196.
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Defendant also contends that defense counsel provided ineffective assistance of counsel
by failing to object to the testimony regarding the grocery-store incident.
To establish ineffective assistance of counsel, defendant must show that counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms. Defendant must further demonstrate a reasonable probability
that, but for counsel’s error, the result of the proceedings would have been
different, and the attendant proceedings were fundamentally unfair or unreliable.
Effective assistance of counsel is presumed, and the defendant bears a heavy
burden of proving otherwise. [People v Rodgers, 248 Mich App 702, 714; 645
NW2d 294 (2001) (citations omitted; emphasis removed).]
Defense counsel’s conduct did not fall below an objective standard of reasonableness because he
used the grocery-store incident to try to impugn the mother’s credibility regarding the hitting
incident. Moreover, defendant has failed to demonstrate that the failure to object affected the
outcome of the proceedings.
Affirmed.
/s/ Brian K. Zahra
/s/ Michael J. Talbot
/s/ Patrick M. Meter
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