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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 27, 2017

v No. 329448 Wayne Circuit Court CLIFFORD DANIEL THOMAS, LC No. 15-001020-01-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 329449 Wayne Circuit Court JASMINE GORDON, LC No. 15-001020-02-FC

Defendant-Appellant.

Before: O’C ONNELL , P.J., and G LEICHER and B OONSTRA , JJ.

P ER C URIAM

. Defendants Jasmine Gordon and Clifford Daniel Thomas jointly s tood trial for the death of three-year-old Jamila Smith. The prosecution attributed Jam ila’s death to child abuse. Separate juries convicted Gordon of first-degree child abuse an d involuntary manslaughter, and Thomas of involuntary manslaught er and assaulting, resisting or obstructing a police officer. In these consolidated appeals defendants raise several challenges to their convictions, and Thomas additionally challenges his invo luntary manslaughter sentence. Thomas’s claims lack merit, and in Docket No. 329448, we affirm Tho mas’s convictions and senten ces.
Gordon, on the other hand, raises a valid constitutional chall enge to the performance of her trial counsel. Counsel abandoned a viable defense strategy supported by expert testimony. Thomas’s jury heard this evidence and acquitted him of the chil d abuse charge. Gordon’s attorney fabricated a causation theory and presented no evidenc e to support his personal hypothesis. As a result, Gordon had no defense at all. In Dock et No. 329449, we vacate Gordon’s convictions and sentenc es and remand for a new trial.-2- I. BACKGROUND

A. JAMILA’S MEDICAL HISTORY

Jamila’s cause of death formed the central contested issue in the joint trials. The prosecution asserted that the immediate cause was bilateral bro nchial pneumonia, and that the pneumonia resulted from an infection (sepsis) triggered by a la ceration of her pancreas. Thomas inflicted the pancreatic lacer ation, the prosecution argued, an d Gordon aided and abetted Thomas by turning a blind eye to indications that he was physically ab using the child. The defense contended that Jamila died a natural death due to pneumonia and that the incidental pancreatic laceration did not contribute to her demise.

Jamila’s unusual medical history supplied the backdrop for the se competing claims. Jamila weighed just over eight pounds at birth and appeared to be a normal newborn. But at 22 months of age she could not talk, walk, or stand without suppor t. Her height, weight and head circumference were well below normal limits. Physicians at Chi ldren’s Hospital of Michigan (CHM) labeled her as “failure to thrive.” Further evaluation r evealed that she had a brain malformation of the frontal lobes resulting in a 30% loss of br ain matter. Children with this disorder have delayed motor and language development and are intellectually disabled. Gordon and Smith were provided with nutritional counseling and encoura ged to enroll Jamila in the Early On program, which offers s pecial education programming fo r very young children.

Jamila’s medical history incl uded two additional diagnoses tha t became significant during the trial. At five months of age, Jamila had been treat ed for nummular eczema, which manifests with coin-shaped lesions on the skin that can itch an d crust over. Two months before her death, Jamila contracted hand, foot and mouth disease, a vi ral illness featuring a rash. Whether the lesions on Jamila’s body were bruises or a rash was a subject of disagreement after her death.

Gordon and Smith separated in March 2014. Jamila and her olde r brother remained with Gordon. Several months later, Gordon and Thomas began living t ogether. Gordon was the breadwinner of this new family unit. While Gordon worked, her sister and father sometimes cared for her children. At other times, Thomas was in charge. Over time, Thomas became Jamila’s regular caregiver.

In August 2014, Gordon took Jamila to CHM after Smith expresse d concern about a bruise on Jamila’s left inner thigh. A doctor measured the bru ise at four by five centimeters, and noted the presence of a rash in the same area. A report of sus pected child abuse was made to Child Protective Services (CPS) . When CPS came to Gordon’s hom e to investigate, Gordon neglected to mention that Thomas provided care for her children . CPS did not substantiate the child abuse report. One month la ter, Jamila was dead. And aft er calling Gordon about the bruise, Smith never saw his daughter again.

B. THE DAY OF JAMILA’S DEATH

During the afternoon of September 18, 2014, Thomas drove Gordo n to work. Gordon testified that she called home s everal times that afternoon and evening to check on the children, and Thomas reassured her that all was well. At approximately 9 :00 p.m., Thomas called Gordon-3- and told her to “come outside” as he had arrived with her car a nd the children, and something was wrong with Jamila. Gordon quickly ascertained that Jamila was not breathing. She “hopped” into the back s eat and started CPR.

Thomas claimed that Jamila had been well throughout that day. He recounted that after taking Gordon to work, he and the children went to a park. Jami la fell while they were there, but he believed nothing was wrong with her. Later, Thomas fed Jami la and she vomited. Thomas described that when he and the children set out to retrieve Gor don from work, Jamila walked to the car under her own power. As they were driving on the freew ay, Jamila’s older brother told Thomas that Jamila had stopped breathing or was “playing sleepi ng.” Thomas claimed that he began driving with one hand and administering CPR with the othe r, reaching into the backseat to do so.

When they arrived at Henry Ford Hospital, Thomas pulled into a back parking lot instead of the emergency room entrance. Jessica Vollstaedt, an emergen cy medical technician, was making her way to the back of the hospital when she heard yelli ng and screaming that a child was not breathing. She responded, determined that Jamila had n o pulse, and started CPR. Neither Vollsteadt nor the code t eam could revive Jamila. Voll steadt recalled that Jamila had “an abrasion to her forehead a nd several bruises throughout her body.” She wore only a diaper.

The police were summoned afte r hospital personnel observed bru ising on Jamila’s body and a wound on her forehead. 1 When asked where they lived, Thomas offered an incorrect address on Webb in Detroit. The police found only an abandoned house. Thomas eventually admitted that he lived on Rockdale; when the police went to the home they found a bucket containing water and vom it near the bedrooms.

C. THE WEEKS BEFOR E JAMILA’S DEATH

Thomas and Gordon were separat ely interrogated w ithin hours of Jamila’s death. Gordon submitted to a second interview several months later while in c ustody. All three lengthy interrogations were pl ayed for the jury.

Thomas reported that during the last two weeks of Jamila’s lif e, he cared for her “every other day.” He claimed that about a week and a half earlier, J amila had hit her head on a doorknob, door edge, or some other part of a door; the exact me chanism changed several times during the interrogation. He put ice and witch hazel on the he ad bump and administered Benadryl and Pedialyte for her subsequent vomiting. The head i njury swelled to the size of a golf ball. “Ever since she hit her head she’s been going down, ” Thomas admitted. Jamila did not want to eat and vomited. Thom as further conceded that he m ade a “bad judgment call” in not taking Jamila to the hospital. He agreed that it was his “ responsibility to see that they were cared for during the times” that he had the children.

1 A large, open head wound is read ily visible in the autopsy pho tographs. Two smaller head wounds are also visible.-4- Gordon claimed that that she did not take Jamila to the hospit al after first seeing the head wound because she was “impaired” when she came home from work that evening due to her ingestion of wine and marijuana. Thomas told her that Jamila r an into the wall or the door while being chased by her brother. Gordon had no explanation for whyshe did not take Jamila to a doctor the next day, when she was no longer impaired. Instead, Gordon treated Jamila’s head bump with cocoa butter and witch hazel and believed that the wi tch hazel caused the bump to scab and bleed.

Two days after hitting her head, Jamila’s stomach bloated. Tw o or three days before her death, the child started vomiting. Gordon volunteered that she planned to take Jamila to the doctor “on my day off,” as she t hought the child had only a sto mach virus. She described that Jamila “would lay down. She wouldn’t sleep and she had a fever and her bowel movements was a little irregular as well.” Gordon insisted during her interv iews that Jamila had rashes, not bruises. She stressed that Jamila suffered from eczema and had recently been treated for hand, foot and mouth disease. At the t rial, however, she expressed t hat she had changed her mind, and believed the marks to be bruises. She blamed Thomas for what h appened, asserting that she went to work every day, regularly called to check on her childr en, and did not know about the pancreatic injury until after the autopsy.

D. THE MEDICAL TESTIMONY

Dr. Kilak Kesha, a forensic pathologist employed by the Wayne County Medical Examiner’s Office, performed an autopsy on Jamila. He found 18 to 23 abrasions (“scrapes”) on her face, back, left thigh and right arm. Dr. Kesha attributed all of the abrasions to blunt force trauma. He also observed 10 to 15 contusions (bruises) on the child’s chest and abdomen, and 12 contusions on her thighs and forearms. The abrasions, too, were caused by “a blunt object.” The bruises were of “varying age s,” Dr. Kesha explained, “from weeks before death until death.”

Most notably, Dr. Kesha discovered a one-half inch tear or lac eration of Jamila’s pancreas and fresh blood in her abdominal cavity. The pancreat ic laceration had occurred about one week prior to death, he opine d. Dr. Kesha described the me chanics of this injury as follows:

A laceration of the pancreas is extremely rare. It usually oc curs when a blunt object or force is applied to the front of the abdomen an d the back is supported by either [sic] like a throw to the wall. The reason for this is the pancreas is a long organ that crosses the midline of the back. When there’s pressure from the front the pancreas rubs up against the spine. The spine is a bone, it’s hard and this causes t he pancreas to split into two.

A child cannot tear her pancreas by playing or f alling; this in jury requires “significant” force, Dr. Kesha insisted. “It’s rarely seen,” he indicated, other than i n car accidents where “a child is unrestrained and the vehicle is t ravelling at a high rate of sp eed.” A child with a pancreatic injury would appear ill, have abnormal bowel movements or urina tion, pain, drowsiness, lethargy, vomiting or a desire to be held all the time. The ch ild’s illness would have been obvious to a caretaker, he concluded.-5- Evidence of bleeding was also discovered in Jamila’s mesentery , which is the “fat in the abdomen.” According to Dr. Kesha, “blunt trauma to the abdomen ” caused this bleeding, as the mesentery is “very close” to the pancreas. One blow could have caused both areas to bleed, but there was also a second, fresh area of hemorrhage in the mesent ery, which means that there were “[m]ultiple blows.” Dr. Kesha conceded that the newer bleeding alternatively could have occurred during “play,” as the pancreas was already injured; he admitted that he did not know how much pressure would be required to reinjure a lacerated pan creas. The first injury to Jamila’s pancreas initiated the infection that led to her death , in his view.

Dr. Kesha found additional bleeding between Jamila’s scalp and skull bones caused by blunt trauma to the head. The magnitude of the hemorrhage was inconsistent with a fall. A knee, foot, fist, piece of wood or bat could have caused her he ad injuries, which appeared to be about a week old. He conceded that the head injuries did not c ause Jamila’s death, nor did the bruising or the abrasions. The b ruising on her abdomen may hav e been related to the pancreatic laceration, however.

The pancreatic laceration “was [the] initiating factor” that t riggered “the cascade that led to . . . death.” Dr. Kesha posited that after Jamila’s pancrea s was lacerated, she developed sepsis (“an infection in her blood”), a nd “[t]here was also necrosis o r death of her bowel or large colon and she had pneumonia. So the lacerated pancreas caused the se psis, which caused the pneumonia, which killed the decedent.” Jamila could have devel oped pneumonia absent the pancreatic laceration, but Dr. Kesha had no reason to think tha t she would have. Jamila’s multiple injuries demonstrated that she was the victim of child abuse, in Dr. Kesha’s estimation. He ruled her death a homicide.

Dr. Kesha denied that the abrasions or bruises he delineated w ere rashes, and he saw no evidence of eczema. He admitted that when he first examined Ja mila’s brain, he did not appreciate that it was malformed. Only after reading Jamila’s medical record and examining the autopsy photographs did Dr. Kesha realize that there were “deve lopmental issues.” Those issues did not impact Jamila’s pancreatic function or the cause of her death, he stated.

Dr. Ljuvisa Dragovic, the chief forensic pathologist and chief medical examiner for Oakland County, testified only on Thomas’s behalf. He stated that Gordon’s attorney, John McWilliams, had retained him to review Jamila’s medical records and Dr. Kesha’s autopsy report. Like Dr. Kesha, Dr. Drag ovic concluded that bronchial pneumonia caused Jamila’s death. His opinion departed from Dr. Kesha’s in several import ant ways, however. In Dr. Dragovic’s view, Jamila did not h ave sepsis. Rather, she “had bronchial pneumonia and that’s it, so there is no sense to conclude that the child died of sepsis. ” Dragovic conceded that Jamila “might have sustained blunt force trauma in some point in time to her belly,” but she died of pneumonia, and not from the pancreatic laceration. Dr. Dragovi c expressed strong disagreement with Dr. Kesha’s opinion that the pancreatic laceration led to the pneumonia, terming it “a quantum leap.” If Jamila truly had sepsis, Dragovic opined, sh e would not have been able to walk or run around, and may have been unconscious.

Further, Dr. Dragovic disagreed that the pancreatic injury was inflicted by a blunt object such as a fist. In his view, th e source had to have been a sma ller, “very focused ” object such as a stick, a broomstick, or a tricycle handlebar. Had it been a fi st, neighboring anatomical structures,-6- such as the liver, also would have sustained injury. Jamila co uld “have been pushed against something by someone or ran into something . . . that is being held or some exposing type of profile or structure, it’s hard enough to render this type of i njury.” While Jamila could not have injured her own pancreas, another child could have done it duri ng play or a confrontation. Alternatively, she may have run into something while being chas ed by someone. He emphasized that had he performed the autops y, he would not have called Jam ila a victim of child abuse.

Dr. Dragovic also took issue with Dr. Kesha’s determination th at all of the marks on Jamila’s body represented bruising or trauma. If a pathologistwants “to be sure about the nature of the lesion you have to take amicroscopic section, that’s th e main tool in any pathologist’s evaluation, tissue sample.” Dr. Kesha did not create any micro scopic slides of the bruises. Although Dr. Dragovic’s testimony on this point is somewhat unc lear, he suggested that Jamila’s skin conditions could account for some of the marks found at au topsy:

Q . What is your opinion as to the scars or discolorations throu ghout her abdomen or chest area?

A . The discolorations that we refer to in medicine is a hyperpi gmentation in heavily pigmented areas of the skin are actually healed drie r diseases or conditions of the skin or injuries of the skin. So the scar is something that occurs up for healing. . . . So those are the categories that are att ributable to the appearance of the body of the deceased daughter.

Dr. Dragovic conceded that one of the “lesions” on Jamila’s ab domen “overlies” the general area where the head of the pancreas meets the body of the pancreas. He explained that he could not call it a “bruise:” “This particular lesion, and I have to call it lesion because that’s what it is, it’s a change in the skin. I cannot know exactly h ow it was generated because clearly there was some pressure, something that allowed the blood vesse ls to break down and create this bruise appearance.” Although the lesion was consistent with so meone doing CPR compressions in that area, the pancreatic laceration beneath it was not “fre sh.” A small amount of bleeding near the pancreas may have been t he result of the resuscitative efforts.

The prosecutor cross-examined D r. Dragovic extensively regardi ng other cases in which he had testified against the Wayne County medical examiner’s of fice, and brought out that he had been turned down for the position of Wayne County Medical E xaminer many years earlier. Dr. Dragovic was combative, as was the prosecutor.

E. THE REMAINING EVIDENCE, AND THE VERDICTS

Gordon’s sister, Lakisha Thaxt on, testified that she and Gordo n’s father frequently babysat for Jamila before Gordon became involved with Thomas. Thaxton recalled that Jamila had rashes on her body at various times. She last saw Jamila a week or two before the child’s death, and recounted that the child had “rashes or bumps” on he r legs and arms that did not concern her. At that time, Jamila, had no bruises or “open mar ks on her face.” Although the prosecution contended that Gordon had deliberately isolated Jam ila during the last weeks of Jamila’s life, Thaxton testifie d that Gordon had asked her to b abysit on the day Jamila died.-7- Gordon and Thomas both testified before their respective jurie s. Thomas vehemently denied ever harming Jamila, and Gordon insisted that she was un aware of any abuse. The juries were also provided with extensive medical records and records g enerated by personnel with the Early On program. None of the Early On evaluators testified at the trial. Their records established that Jamila was severely developmentally delayed. When she died at the age of 3 years and 4 months, Jamila was nonverbal, could not feed hersel f, could not follow directions or make her needs known, was not toilet trained, and functioned at the intellectual level of an 11 month old. Nevertheless, the evi dence supported that Jamila wa s able to walk and run.

Ultimately, the two juries rendered somewhat inconsistent verd icts. Thomas’s jury convicted him of involuntary manslaughter, MCL 750.321 (neglige nt failure to perform a legal duty), and assaulting, resisting or obstructing a police office r (arising from his attempt to flee from arrest at the hospital), but acquitted him of felony murde r, MCL 750.316(1)(b), and firstdegree child abuse, MCL 750.136b(2) . The trial court sentenced Thomas to 57 months to 15 years’ imprisonment for involuntary manslaughter.

Gordon’s jury convicted her firs t-degree child abuse as an aid er and abettor, MCL 750.136b(2), and involuntary manslaughter, MCL 750.321 (neglige nt failure to perform a legal duty). She was acquitted of felony murder. The trial court se ntenced Gordon to 14 to 25 years’ imprisonment on the first-degree child abuse conviction and sev en to 15 years’ imprisonment on the involuntary mansl aughter conviction.

Both defendants now appeal.

II. DEFENDANT THOMAS

A. SUFFICIENCY OF THE EVIDENCE

Thomas challenges the sufficien cy of the evidence underlying h is involuntary manslaughter conviction. We review challenges to the sufficien cy of the evidence de novo. People v Meissner , 294 Mich App 438, 452; 812 NW2d 37 (2011) . “Even though unpr eserved, a question of sufficiency of evidence may be reviewed de novo by this Court in a criminal case.” People v Osby , 291 Mich App 412, 415; 804 NW2d 903 (2011).

The crime of involuntary manslaughter is not defined by statut e. 2 Under the common law:

[I]nvoluntary manslaughter is the unintentional killing of anot her, without malice, during the commission of an unlawful act not amounting to a fel ony and not naturally tending to c ause great bodily harm; or during the com mission of some

2 MCL 750.321 provides: “Any person who shall commit the crime o f manslaughter shall be guilty of a felony punishable by imprisonment in the state pris on, not more than 15 years or by fine of not more than 7,500 dollars , or both, at the discretion of the court.”-8- lawful act, negligently performed; or in the negligent omissionto perform a legal duty. [ People v Mendoza , 468 Mich 527, 536; 664 NW2d 685 (2003).]

1. LEGAL DUTY

Thomas first challenges the sufficiency of the evidence suppor ting that he negligently omitted to perform a legal duty. Thomas claims that he merely served as Jamila’s occasional babysitter, and therefore di d not have a duty, or even the righ t, to seek medical assistance for her.

“The law recognizes that under some circumstances the omissionof a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter.” People v Beardsley , 150 Mich 206, 209; 113 NW 1128 (1907). This rule “is always based on the pro position that the duty neglected must be a legal duty, and not a mere moral obligation.” Id . The Supreme Court catalogued the legal relationships giving r ise to a legal duty as follows:

If a person who sustains to another the legal relation of prot ector, as husband to wife, parent to child, master to seaman, etc., knowi ng such person to be in peril, willfully and negligently fails to make such reaso nable and proper efforts to rescue him as he might have done, without jeopardizi ng his own life, or the lives of others, he is guilty of manslaughter at least, if by reason of his omission of duty the dependent person dies.

So one who from domestic relationship , public duty, voluntary choice , or otherwise, has the custody and care of a human being, helpless either from imprisonment, infancy, sickness, age, imb ecility, or other incapacity of mind or body is bound to execute the charge with proper diligence, and will be held guilty of manslaughter, if by culpable neglig ence he lets the he lpless creature die . [ Id

. at 209-210 (quotation marks and citation omitted, emphasis adde d).]

As examples of omissions that could support liability for invo luntary manslaughter, Beardsley invoked cases involving a husband who allowed his intoxicated w ife to die in the snow, a husband who neglected to p rovide clothing and shelter f or his “insane wife,” and a mother who exposed “her infant child without protection.” Id . at 210. In contrast, the Court agreed with the holding in a Vermont case that the employers of “a maid servant” who lived in their home had no duty to supply the maid servant’s child with “proper care.” Id . at 210-211.

Applying these principles, the Beardsley Court reversed the defendant’s manslaughter conviction. The victim in that case was an adult woman who spe nt a night or two drinking with the defendant while the defendant ’s wife was “temporarily absen t from the city.” Id . at 207. She paid a third person to purchase some morphine tablets for her u se. Id . The victim unsuccessfully attempted to conceal her ingestion of the morphine from the def endant, and he unsuccessfully tried to prevent her from taking it. Id . at 208. When she passed into a s tupor, the defendant “was too intoxicated to be of any assistance.” A third person took her to someone else’s room, where she died. Id . In setting aside the defendant ’s manslaughter conviction the Supreme Court held that the defendant had no duty to prevent the victim’s death. The Court explained:-9- [T]he deceased was a woman past 30 years of age. She had been twice married. She was accustomed to visiting saloons and to the use of intoxi cants. She previously had made assignations with this man in Detroit at le ast twice. There is no evidence or claim from this record that any duress, fraud, o r deceit had been practiced upon her. On the contra ry it appears that she went u pon this carouse with respondent voluntarily and s o continued to remain with him

. . . . . . . Respondent had assumed eith er in fact or by implication n o care or control over his companion. Had this been a case where two men under l ike circumstances had voluntarily gone on a debauch together, and o ne had attempted suicide, no one would claim that this doctrine of legal duty co uld be invoked to hold the other criminally responsible for omitting to make effo rt to rescue his companion. How can the fact that in this case one of the parti es was a woman change the principle of law app licable to it? Deriving and app lying the law in this case from the principle of decided cases, we do not find that such legal duty as is contended for existed in fact or by implication on the part of respondent towards the deceased, the omission of w hich involved criminal liability . [ Id. at 214-215 (emphasis added).]

The defendant may have had a moral duty to intervene, the Court opined, but he did not have a legal one. Id . at 215.

Thomas asserts that as Jamila’s “occasional babysitter” he had no legal duty to obtain medical care for her “absent express consent from her parent.” Beardsley supports that Thomas’s “domestic relationshi p” with Jamila, coupled with her “helpless[ness],” could give rise to a duty. More specifically, the in loco parentis doctrine imposes the legal duty that applies in this case and is fully consistent with the duty principles set forth in Beardsley . Recall that in Beardsley , the Supreme Court opined that a person who “has the custody a nd care” of a human being unable to care for herself due to “infancy [or] age . . . is bound to execute the charge with proper diligence[.]” The in loco parentis doctrine stands for the same proposition.

“The intimate relationship between parent and child can surely arise outside genetic bonds.” Hush v Devilbiss Co , 77 Mich App 639, 647; 259 NW2d 170 (1977). This Court explained in Hush that whether an adult stands in loco parentis to a child depends, in part, on the adult’s intent:

Legally, the assumption of in loco parentis status 1 is a question of intent. Intent to assume parental status can be inferred from the acts and declarations of the parties. Some factors to consider are the age of the child ; the degree to which the child is dependent on the person claiming to be standing in loco parentis ; the amount of support, if any, provided; the extent to which duties commonly associated with parenthood are exercised. Providing financial support may be an unimportant consideration in li ght of the relative situations o f the person standing in loco parentis and the real parents. In some cases, while providing financia l support may be unnecessary, the benefits flowing to the child b y reason of someone’s assumption of the other infinitely various parental d uties may be most essential.-10- _______________________________________________________________

1 The various definitions of the term “ in loco parentis ” were compiled in 67 CJS Parent and Child, § 71, pp 803-804:

The term ‘in loco parentis’ has been defined as in the place of a parent; instead of a parent; charged, f actitiously, with a parent’s rig hts, duties, and responsibilities; more specifica lly, the relationship which a p erson assumes toward a child not his own, holding the child out to the world as a member of his family toward whom he owes the discharge of parental dut ies. It has been said that the accepted defi nition of a person in loco pare ntis is one who means to put himself in the situation of a lawful parent to the child with respect to the office and duty of making provision for it; one assuming the parental character and dischargi ng parental duties; a person st anding in loco parentis to a child is one who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental rel ation, without going through the formalities ne cessary to a legal adoption.

Distinctions . One standing in loco parentis has been distinguished from a brother or sister, cousin, or natural parent. Loco parentis di ffers from adoption in that the one is temporary and the other permanent i n nature. (Footnotes omitted.) [ Id . at 649 (citations omitted).]

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In People v Thomas , 85 Mich App 618, 624; 272 NW2d 157 (1978), this Court applied the in loco parentis doctrine in a criminal case, holding that a person who has “vo luntarily assumed a parental function” bears a legal duty to obtain neces sary medical attention for one not otherwise able to obtain it on his or her own. The defendant i n Thomas was “the work coordinator” at a “religious pr actical training school” who had obtained permission from the victim’s parents to discipline their mentally ill son “if neces sary.” Id . at 621. After a severe beating administered in the gui se of discipline, the victim cou ld not walk and gradually became ill with flu-like symptoms. The defendant failed to arrange fo r any medical intervention, and the young man died. Id . at 622. Medical evidence linke d the beating to the death. Id . at 623. This Court upheld the defendant’s conviction for involuntary manslau ghter premised on his failure to perform a legal duty, explaining:

Defendant was a supervisor of Oak Haven, stood in a position of authority over the victim and, by talking with t he victim’s parents and obtain ing their permission to discipline the decedent, he directly and voluntarily assumed a parental function, and stood in a position of loco parentis to the decedent. Under such circumstances, defendant’s beating of the victim coupled with h is failure to provide medical attention, when decedent was unable to obtain s ame himself, violated defendant’s legal duty to care for the victim. The ele ments of involuntary manslaughter were adequately established. [ Id . at 624.]-11- In Beardsley ’s parlance, Thomas’s legal dutyarose “by implication . . . fr om the facts and circumstances of the case.” He voluntarily undertook a parenta l function to care for Jamila in her mother’s absence, acting as her sole caretaker during porti ons of the day. Despite his protestations that he had not caused Jamila’s head injury, he a cknowledged that Jamila’s condition began to deteriorate after the head injury occurred a nd that her mother had decided against medical consultation. Thom as actively participated in “treating” Jamila with ice, cocoa butter and Pedialyte, acting as a parent toward an ill and inju red child.

This evidence substantiated that Thomas intentionally and voluntarily undertook a duty of care, and had more than a moral obligation to seek medical c are for the child. That Gordon failed to provide necessary care does not excuse Thomas from hi s independent obligation, as one standing in loco parentis , to react appropriately to the child’s symptoms of serious ill ness. Further, Thomas was not a mere “babysitter” for Jamila. He coh abitated with her mother, cared for her on a regular basis, and voluntarily addressed her medic al needs. These facts suffice to give rise to a legal duty of care for an obviously ill child.

Nor did the prosecutor neglect to introduce sufficient evidenc e regarding Thomas’s legal duty. The evidence substantiated that Thomas voluntarily assum ed the obligations of a parent; he admitted that when Gordon was at work, it was his “responsib ility to see that [the children] were cared for[.]” He “cooked and . . . cleaned” for them, cha nged Jamila’s clothes when she vomited on them, and treated Jamila’s head wound by icing it wh en it occurred under his watch. Thomas admitted during his interrogation that he “should have” taken Jamila to the hospital. In the fourth hour of questioning he stated: “I shoulda just took her to the hospital” when she did not get better after she had hit her head. He continued: “I ma de a bad judgment call . . . on not taking her to the hospital.” He explained that ever since she hit her head, “she’s been going down.” Accordingly, we reject Tho mas’s arguments that he had n o legal duty, or that the prosecution failed to present e vidence substantiating it.

2. CAUSATION

Thomas further contends that insufficient evidence supported t hat his omission caused Jamila’s death. This claim also lacks merit.

Dr. Kesha testified that Jamila ’s pancreatic injury would have caused symptoms of illness obvious to a caretaker. He explained that “depending on the ag e of the child and the development of the child,” she would exhibit “fever, can have a bnormal bowel movement, abnormal urination, pain, be drowsy, lethargic, wants to sleep all the time, wants to be held all the time, can have many different symptoms.” In response to th e prosecutor’s questioning, Dr. Kesha stated that a child with a pancreatic injury “might vomit or she might not.” If Jamila had received treatment after the f irst pancreatic injury, Dr. Keshaopined, she would have survived.

The trial evidence substantiated that Jamila had been vomiting since sustaining her head injury, and did not appear to be as energetic as she normally w as. Thomas admitted that the child had been sick “that last couple of weeks.” In combinatio n with Dr. Kesha’s testimony, this evidence sufficed to demonstrate a causal relationship between Thomas’s omission and Jamila’s death.-12- B. OV 10

Thomas further contends that the trial court improperly assess ed 10 points for offense variable 10.

Under the sentencing guidelines, the circuit court’s factual de terminations are reviewed for clear error and must be supported by a preponderan ce of the evidence. Whether the facts, a s found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpret ation, which an appellate court reviews de novo. [ People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013).]

MCL 777.40 provides for the scoring of OV 10 as follows:

(1) [OV] 10 is exploitation of a vulnerable victim. Score [OV] 10 by determining which of the following apply and by assigning the n umber of points attributable to the one that ha s the highest number of points:

(a) Predatory conduct was involved.... 15 points

(b) The offender exploited a victim’s physical disability, mental disability, youth or agedness, or a domestic r elationship, or the offender abused his or her authority status........ 10 points

(c) The offender exploited a victim by his or her differenc e in size or strength, or both, or exploited a victim who was intoxicated, under the i nfluence of drugs, asleep, or unconscious...... 5 points

(d) The offender did not explo it a victim’s vulnerability.. ........ 0 points

(2) The mere existence of 1 or more factors described in subse ction (1) does not automatically equate with victim vulnerability.

(3) As used in this section:

* * *

(b) “Exploit” means to manipul ate a victim for selfish or un ethical purposes.

(c) “Vulnerability” means th e readily apparent susceptibilit y of a victim to injury, physical restraint, persuasion, or temptation.

The text of OV 10 permits a score of 10 points when “[t]he off ender exploited a victim’s . . . youth or agedness[.]” MCL 777.40(1)(b). MCL 777 .40(3)(b) defines “exploit” as “to manipulate a victim for sel fish or unethical purposes.” “A ccordingly, to merit a score of 10 points for OV 10, a defendant must have manipulated a young vic tim for a selfish or unethical purpose and the victim’s vulnerability must have been readily a pparent.” People v Needham
, 299 Mich App 251, 255; 829 NW2d 329 (2013).-13- Thomas admitted that Jamila had been vomiting during the last week of her life and “[s]he just wasn’t running around busy like she usually be.” D uring his interview, Thomas had no excuse for failing to obtain medical care for the child, oth er than that doing so was her mother’s responsibility. Even if Thomas did not inflict any of Jamila’s injuries, he selfishly neglected to meaningfully attend to Jamila’s obvious medical ne eds. The trial court did not err in scoring OV 10 at 10 points. A ccordingly, we affirm both his convictions and his sentences.

III. DEFENDANT GORDON

Gordon contends that her trial counsel’s performance was const itutionally deficient, leading to her convictions. Gordon preserved this issue by suc cessfully moving in this Court for remand to conduct a hearing on this issue. People v Armisted , 295 Mich App 32, 46; 811 NW2d 47 (2011), citing People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).

“Whether a person has been denied the effective assistance of counsel is a mixed question of fact and constitutional law.” People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002). Findings of fact are reviewed for clear error, while determinat ions of constitutional law are reviewed de novo. Id . “ ‘[I]t has long been recogni zed that the right to counsel i s the right to the effective assistance of counsel.’ ” United States v Cronic , 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984), quoting McMann v Richardson , 397 US 759, 771 n 14; 90 S Ct 1441; 25 L Ed 2d 763 (1970). In Strickland v Washington , 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984), the United States Supreme Court set forth the now famil iar formula for an ineffective assistance claim: “First, the defendant must show that counsel’ s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense.” To establish the first component, a defendant must show that couns el’s performance fell below “an objective standard of reasonableness” under “prevailing profess ional norms.” People v Solmonson , 261 Mich App 657, 663; 683 NW2d 761 (2004). With respect to the prejudice aspect, the defendant must demonstrate “a reasonable probabilit y that but for counsel’s . . . errors,” the result of the proceedings would have differed. Id . at 663-664. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland , 466 US at 694. The defendant must overcome the strong presumptions that his “counsel’s conduct falls within the wide range of re asonable professional assistan ce,” and that counsel’s actions represented sound trial strategy. Id. at 689.

A defense counsel possesses “wid e discretion in matters of tri al strategy.” People v Odom , 276 Mich App 407, 415; 740 NW2d 557 (2007). And decisions re garding what witnesses to present are generally considered strategic, supporting relie f only when the defendant is denied a substantial defense based on a witness’s absence. People v Payne , 285 Mich App 181, 190; 774 NW2d 714 (2009). This Court may not “substitute our judgme nt for that of counsel on matters of trial strategy, nor will we use the benefit of hinds ight when assessing counsel’s competence.” Id. (quotation marks and citation omitted). However, “even delibe rate trial tactics may constitute ineffective assistance of counsel if they fall o utside of the wide range of professionally competent assistance.” Martin v Rose , 744 F2d 1245, 1249 (CA 6, 1984) (quotation marks and citation omitted).-14- A. GINTHER HEARING

Pursuant to this Court’s order, the trial court conducted a Ginther hearing. Gordon’s trial attorney, John McWilliams, testified that his theory of the def ense was that Jamila died due to “natural causes from a congenita l birth defect.” The “congenit al birth defect” was the child’s underlying brain malformation. McWilliams constructed his caus ation hypothesis from two facts: Jamila’s brain abnormality and her “failure to thrive” d iagnosis at the time the brain abnormality was diagnosed. He postulated “that with the missin g 30 percent of a person’s brain that that could, in fact, cause a downward cascading condition of the various systems of a human body, which would and possibly [did] account for the fact that there was a diagnosis by Children’s Hospital that the child was failing to thrive.”

When Jamila was admitted to CHM and the “failure to thrive” di agnosis rendered, McWilliams continued, the treatment was to “pack[] that child w ith calories.” Yet she lost weight, he observed, “because [she] was failing to thrive.” He concluded from these facts that Jamila’s failure to thrive “was the cause and effect of the 30 percent [loss of b rain matter] and the downward cascade of a child w ho was born with a congenital birth defect, unfortunately.” He elaborated:

These downward cascading symptoms that eventually led to, in myestimation, the breakdown of various not only body functions, but system fu nctions within the child’s body, which included nutrition, failure to thrive, and I thought better explained why the child, when seen in the emergency [room] on t he night in question, the child is there deceased, and that had all of thes e bruises on the interior and back side of the child, and why the child had pneu monia, that all of that was in conjunction with w hat had previously happened.

No expert witness testified in support of McWilliams’ theory that Jamila’s 2014 pancreatic laceration was related to the 2013 “failure to thriv e” diagnosis or to her brain malformation. More importantly, McWilliams knew his theory was scientifically bankrupt before he decided to employ it, but he rested Gordon’s defense on it nonetheless.

McWilliams conceded at the Ginther hearing that he unsuccessf ully consulted several medical experts in his search for validation of his idea that J amila’s brain disorder and failure to thrive caused her death. In addition to Dr. Dragovic, he conta cted Dr. Werner Spitz 3 and at least one medical malpractice lawyer at the Charfoos & Christensen la w firm, which specializes in plaintiffs’ medical malpractice work:

I also showed the morgue pictures and the Autopsy Report of [t o?] Dr. Spitz.

3 McWilliams saw Dr. Spitz and another well-known forensic patho logist, Dr. Michael Baden, at a conference. He showed them the autopsy report and the photog raphs and they told him: “this child was abused.”-15- I also submitted the file to the Charfoos & Christensen law fi rm, wellknown for childbirth defects as li tigators in these kinds of ca ses.
And none of them would agree with me that other than - - and a lso the fact that there was a lacerated pancreas on this particular child, w hich everybody, including all of the literature that I researched all over the place, could - - no lacerated pancreas could not ha ppen in any child, except for bl unt force trauma, improper blunt force trauma, excep t what I believed was the pro per theory that the pancreas received this lacerati on because of the medical condit ion, the breakdown cascading of being one of the functions of nutrition, that that caused the laceration, which I thought Dr. D ragovic was going to back me up on. [4]

McWilliams testified that his own research led him to conclude that the pancreas cannot be injured except through trauma. Nevertheless, he believed th at “because of a birth defect” and his personal experience with acid reflux, he could explain Jami la’s injury as nontraumatic:

And [I] did a great deal of res earch, and especially through D r. Werner Spitz’ Medicolegal book, his te xtbook, and also looking through many journals, and journal articles with regard to specifically trying to dete rmine how it was otherwise that a pancreas, which is placed uniquely in a human body between - - I’m not exactly sure between what and what - - but it is so dee ply embedded in the human body that unless there is some type of either intenti onal or major accidental injury, trauma, force, that usually a pancreas is no t otherwise damaged, except possibly - - it’s my belief - - because of a birth defec t, which has a cascading effect not only upon the lungs and not only upon the whatever, blood flow and things like that, but a lso upon the nutritional value of the child.

And nutrition has to do with the pancreas. The pancreas has t o do with breaking down the intake material from the mouth from eating. And it contains many acid enzymes which break down food, which is very volatile because I, you know, from time to time I get th is thing called “acid reflux”.

I think that stuff is battery acid in my throat or stomach. W here the heck did it come from? I find out it comes partially from your panc reas. That stuff is really - - and I thought to be truthful and fully disclosing th at that, in fact, could have been part of what caused the lacerated pancreas, as oppose d to blunt force
trauma. [5]

4 The Charfoos attorneys also concluded that the child had been abused, McWilliams volunteered.

5 McWilliams’ flawed understanding of medical facts permeated bo th Gordon’s trial and the Ginther hearing. McWilliams auditioned his idea that the pancreas “ha s to do with breaking down the intake material from the mouth when eating” when he cr oss-examined Dr. Kesha. Dr. Kesha told him that the pancreas secretes enzymes but the enzym es are not used in digestion:-16- On cross-examination, the prosecuting attorney summarized thes e theories with McWilliams:

Q . Now, let me just recap the theories. Your theory was the ch ild died based on the congenital birth defe ct, which deteriorated from t he point of birth until the child eventually succumbed to it partially due to the breakdown of the pancreas and that this was all based on a congenital birth defe ct?

A . Correct, sir.

McWilliams expressed confidence that the hundreds of pages of m edical records introduced into evidence proved him right.

Despite having told Gordon’s jury in his opening statement tha t the medical examiner for an “adjoining county” would test ify as a defense expert witness , McWilliams elected against calling Dr. Dragovic. 6 McWilliams justified this decision in several ways. First, h e claimed that his causation theory was more likely to lead to a defense verdi ct than would Dr. Dragovic’s testimony. Second, McWilliams was aware of Dr. Dragovic’s “per sonal animosity” toward the Wayne County Medical Examiner’s O ffice and believed that this w ould negatively impact his
Q . . . . Probably a common thing that happens to people is this thing called acid reflux?

A . That’s correct.

Q . I call it battery acid because that’s how bad it burns my th roat when I get it. And I have the feeling that something like that has to do with the emanation of that material that emanates from the pancreas, is that true or not?

A . No, the acid is produced by the stomach.

Q . Okay. But some of the enzymes which produce that has come f rom the pancreas originall y, would you agree with me?

A . No.

In fact, the pancreas secretes insulin into the duodenum, not t he mouth. Enzymes produced in the mouth and stomach create the “stuff” McWilliams called “aci d reflux.” Basic research would have readily revealed to McWilliams that his pancreas/aci d reflux theory had no merit whatsoever. See Acid Reflux, available at <http://patients.gi. org/topics/acid-re flux/> (accessed March 29, 2017).

6 McWilliams’ opening included his explanation of his natural-cause of death theory. He advised the jury that they woul d learn that Jamila had “congeni tal” birth defects “which caused a vital internal organ to self-des truct, became infected, injecti ng and collapsing the health of other organs resulting in the child’s death. In other words, natural cause of death.” Her “pancreas was part and parcel and caused by . . . 36 months of congenital bir th condition, not blunt force trauma,” he asserted. None of the se contentions were validated during the trial.-17- cross-examination. Third, Dr. Dragovic “had no explanation as to why and how all of these horrible bruises were on this child.” And fourth, McWilliams b elieved that he had scored points with the jury that would lead him to victory: Gordon had provid ed “very fine testimony” and Dr. Kesha had agreed that the child’s brain anomaly “would, in fact , have some effect upon the various aspects of the human development and the system of a hu man being, which included the pancreas[.]” McWilliams reasoned:

I gained knowledge and information from [Dr. Dragovic], which was extremely helpful, which was the key to other cases, which was the key in my belief to the defense of Ms. Gordon, okay, which I then went on and developed as a strategy and a theory of the defense of Ms. Gordon and I beli eve also the vindication of not only Ms. Gordon, but the vindication of Mr. Thomas, her codefendant, her boyfriend.

* * *

. . . I did not call him because three days before the trial I received a letter from Dr. Dragovic. I had anticipated that he would agree with me an d reinforce the theory of the defense which I had had. And when I read his lett er, I looked at it and thought to myself, as the trial lawyer working the strategy and in conjunction with many conversations with Ms . Gordon, that I had the better strategy.

McWilliams claimed that he discussed this approach with Gordon, and predicted that Dr. Dragovic would get into a “rout” with the prosecutor on the wit ness stand. The actual events proved him right, McWilliams asserted.

Appellate counsel also questioned McWilliams regarding his dec ision not to call Rose Bonaci, who worked in the Early On program, despite that she wa s present in the courthouse and prepared to testify on Gordon’s behalf. Bonaci’s report, prepa red for the Detroit Public Schools 10 days before Jamila’s death, did not reference abuse or any s igns of abuse. McWilliams testified that he decided agai nst calling Bonaci because had he done so, he believed that the prosecutor would have introduced photos of Gordon and Thomas’s home that were “very unflattering.” McWilliams understood that Jamila had been full y clothed when Bonaci evaluated her, eliminating any chance thatBonaci would have seen the chi ld’s bruises.

Gordon was the only other witness who testified at the Ginther hearing. She claimed that McWilliams did not tell her that he had decided against calling Bonaci and Dr. Dragovic until after Gordon had testified, when he “whispered” it to her at co unsel table. Further, Bonaci had never visited the home in which Gordon lived at the time of Jam ila’s death; any home visits occurred at a previous apartme nt. The last evaluation occurred at the school.

The trial court concluded that given McWilliams’ concerns abou t Dr. Dragovic’s demeanor, Dr. Dragovic’s failure to explain the bruises, and th e positive things about Gordon that appeared in the medical a nd school records introduced in e vidence, “I can’t find that it was not sound trial strategy” to forego calling him as a witness. The trial court continued, “It may be that in hindsight maybe calling them might have possibly made a difference, but it might not-18- have either.” Gordon’s own stat ement that “she didn’t want to take her daughter to the doctor because she didn’t want CPS called in” likely had an impact on the jury, the court observed.

B. COUNSEL’S PERFORMANCE WAS DEFICIENT

People v Ackley , 497 Mich 381, 383; 870 NW2d 858 (2 015), also involved a child ’s death due to alleged abuse. In that case, as here, “expert tes timony was critical to explain whether the cause of death was intentional[.]” Counsel in Ackley consulted an expert witness, Dr. Hunter, who advised that he could not help the defense, butsuggested another physician who would “ ‘give you your best shot.’ ” Id . at 386. Counsel never consulted that expert, or any other. Instead, he determined to present an accident defense t hrough cross-examination of the prosecution experts. Id . at 386-387. After the defenda nt was convicted of felony murd er and first-degree child abuse, appellate counsel consulted an expertwitness (Dr. Werner Spitz) whose affidavit supported that the child’s injury was accidental. Id . The trial court granted the defendant a new trial, finding co unsel’s failure to consult wit h a different medical expert objectively unreasonable. Id . at 387. This Court reversed , holding that counsel’s “decisio n not to consult a second expert const ituted trial stra tegy[,]” and t hat no prejudice had resulted. People v Ackley , unpublished opinion per curiam of the Court of Appeals, issue d April 22, 2014 (Docket No 318303), unpub op at 4.

The Supreme Court reversed, explaining that “a court cannot in sulate the review of counsel’s performance by calling it trial strategy; counsel’s s trategy must be sound, and the decisions as to it objectively reasonable.” Id . at 388-389 (quotation marks and citation omitted). Although the selection of an expert is a “paradigmatic example” of trial strategy, the Court determined that the record in Ackley “betray[ed] no objectively reasonable explanation for counsel’s decision to confine his pursuit of expert assistance to Hunter, a self-proclaimed opponent of the very defense theory couns el was to employ at trial, des pite Hunter’s referral to at least one other expert who could provide qualified and suitable assistance to the defendant.” Id

. at 390-391 (emphasis in origina l, citation omitted). The Supre me Court unanimously determined that Ackley’s counsel had performed ineffectively, summarizing:

In this case involving such “subs tantial contradiction in a giv en area of expertise,” counsel’s failure to engage “expert testimony rebutting the sta te’s expert testimony” and to become “versed in [the] technical subject mat ter” most critical to the case resulted in two things: a defense theory without ob jective, expert testimonial support, and a defense counsel insufficiently equip ped to challenge the prosecution’s experts because he possessed only Dr. Hunter’ s reluctant and admittedly ill-suited input as his guide. Knott v Mabry , 671 F2d 1208, 1212-1213 (CA 8, 1982). This “constitute[d] a constitutional flaw in the representation” of the defendant, not reasonable strategy. Id. at 1213. [ Ackley , 497 Mich at 392.]

Arguably, McWilliams’ decision not to present expert testimonyrepresents more egregious ineffectiveness than t hat of Ackley’s counsel, as McW illiams had actually retained expert support for an exculpatory theory and the expert appeare d at the trial ready to testify. Against that backdrop, McWilliams’ strategic decision to forego the expert and instead present an unsupportable medical theory through his argument and cross- examination constituted-19- ineffective performance. As discussed in greater detail below, McWilliams deprived Gordon of a substantial defense because hi s “strategy” actually amounted to no defense at all.

In defending his strategy at the Ginther hearing, McWilliams asserted that he capably advanced an exculpatory defense despite having no witness suppo rt for it, and the trial court apparently agreed. But our review of McWilliams’ cross-examina tion of Dr. Kesha reveals that the trial court clearly erred in this regard, as McWilliams mad e no evidentiary headway whatsoever in advancing his personal hypothesis that Jamila’s d eath and her pancreatic laceration evolved naturally from her “congenital brain anomaly .”

Dr. Kesha firmly rejected that Jamila had “a congenital birth defect.” Nor did Dr. Kesha concede that the “failure to thrive” diagnosis made at CHM had anything to do with the cause of the child’s death:

Q . Okay. Did you see that the child was suffering from some ty pe of generalized congenital birth defect?

A . No.

Q . No, you didn’t see that?

A. I didn’t see any congen ital birth defect, no.

Q . Well, you saw a description of a condition severally [sic] developmentally disabled; didn’t you see that?

A. Yes.

Q . Okay. And would that be any - - within the realm of being a congenital birth defect?

A . It’s not considered a birth defect.

Q . Okay.

A . A cleft palate, a cleft lip is a birth defect.

Q . Okay, I understand that. But you did see that there was som e problem with regard to this child’s brai n functioning or brain makeup; isn’t that true?

A . That’s correct.

* * *

Q . . . . [T]he parents of this child came to Children’s Hospita l in April 2013, something was not functioning right with regard to this c hild’s digestive process?

A . I don’t know that.-20- Q . Okay. It could have though; isn’t that true?

A . It could have.

Q . Right. And that may be one of t he reasons why the child was failing to thrive; isn’t that true?

A . That’s true.

Q . Especially if the child was demonstrating flu-like symptoms, vomiting, diarrhea, temperature, fever, throwing up?

A . Yeah, but it would have to be over a long period of time, no t sporadic.

Q . Not sporadic?

A . Not sporadic.

* * *

Q . . . . [I] just need your frank opinion, should you have gone back and taken a look at the Children’s Hospital records at the time tha t you did this autopsy?

A . It wouldn’t have changed the cause and manner of death.

Q . Okay. I understand that. Because you at the time of making the opinion as to cause and manner of death are only looking at that child as she presented on the day and at the time you made that autopsy; isn ’t that true?

A . No.

Q . It’s not?

A . No.

Q . Why not?

A . We have to look at medical records to see any progression orany reason that can account - - anyt hing that can change or make a cause and manner of death.

These excerpts are representative of McWilliams’ unsuccessful efforts to elicit admissions from Dr. Kesha consis tent with this theory that Jami la’s brain abnormality was a “congenital defect,” that somehow damaged her pancreas. Viewedindulgently, his questions may have laid the groundwork for his theory. But the answers o ffered no support for it. His-21- cross-examination yielded no concessions or actual evidence tha t Jamila’s death was natural rather than the result of abuse. 7

Furthermore, the jury was twice instructed that counsel’s stat ements and questions are not evidence, and that only the testimony of witnesses and exhibits admitted in evidence could be considered as such. See M Crim JI 2.5 (“Evidence includes only the sworn testimony of the witnesses, the exhibits admitted into evidence, and anything el se I tell you to consider as evidence.”); M Crim JI 2.7 (“The questions the lawyers ask the witnesses are not evidence. Only the answers are evidence. You should not think that something is true just because one of the lawyers asks questions that assume or suggest that it is.”), an d M Crim JI 3.5(5) (“The lawyers’ statements and arguments [and any commentary] are not evidence. They are only meant to help you understand the evidence and each side’s legal theories. You should only accept things the lawyers say that are supported by the evidence or by your own c ommon sense and general knowledge. The lawyers’ questions to the witnesses [your questi ons to the witnesses,] and my questions to the witnesses are also not evidence. You should c onsider these questions only as they give meaning to the witnesses’ answers.”). The jurors are presumed to have followed their instructions. People v Graves , 458 Mich 476, 486; 581 NW2d 229 (1998)

. Lacking a witness to corroborate his theory of the case, McWilliams had no actual evidence to support his selected defense, as Dr. Kesha never testified in conformity with McWill iams’ medical theory. Thus, the uncorroborated “defense” McWilliams offered the jury was no def ense at all.

McWilliams accurately predicted Dr. Dragovic and the prosecuti ng attorney’s quarrel during cross-examination regardin g Dragovic’s history with the Wayne County Medical Examiner’s Office. McWilliams claimed he had seen this mutual h ostility unfold in other trials. The prosecutor argues that McWilliams’ knowledge that Dragovic would be a “problematic” witness justifies his decision not to call him. But this reaso ning begs the questions: why did McWilliams consult Dragovic in the first place if he knew that Dragovic’s cross-examination would be treacherous, and why did he promise the jury that Drag ovic would testify?

Despite Dr. Dragovic’s scrappiness, as an experienced patholog ist he would have provided Gordon with an actual defense to the charge that she h ad aided and abetted Thomas’s first-degree child abuse and to the charge of felony murder, wi th child abuse in the first degree serving as the underlying felony. In his report and his testimo ny, Dr. Dragovic offered that Jamila had not been the victim of child abuse, and that the pancreatic injury did not cause her

7 In his closing argument, McWilliams admitted that his cross-ex amination had been less than convincing: I wish I could have done a better job of cross examining the me dical physician from the medical examiner’s office to demonstrate to you the li nk between the child losing 30 percent or missi ng some 30 percent of its brain wave [sic] and a pancreas that was defective, did not mature, was not creating t he necessary things to do the digestiv e system.-22- death. His expert testimony was truly exculpatory, in contrast to McWilliams’ unsupported theory. 8

Dr. Dragovic’s report put McWilliams on notice that Dragovic c ould be helpful to the defense in multiple respects. The prosecution relied on an all eged link—sepsis—between the pancreatic injury and the pneumonia to prove that Thomas had fa tally abused the child. Dragovic opined that Jamila had not died of sepsis caused by he r pancreatic laceration: “The professed dubious patho-physiology of alleged ‘sepsis’ as a plausible cause of bilateral bronchopneumonia of this severely mentally retarded child is wi thout scientific basis and is devoid of common sense.” In his report (and at the trial) he t ermed Dr. Kesha’s opinion connecting the fatal pneumonia with the pancreatic injury “a qu antum leap.” Although he conceded that the child had sustained trauma to her abdomen res ulting in the pancreatic laceration, Dr. Dragovic’s report and his testimony supported t hat this injury could have occurred in an innocent manner, such as a “toddler running into ” or being pushed into an object. Further, at the trial, he forcefully contradicted Dr. Kesha’s t estimony that the injury could have been inflicted with a fist, expl aining that a punch necessarily would have damaged nearby organs. He raised the possibility that Jamila’s head wounds we re self-inflicted, stating in his report: “ Children with severe mental retardation are known for their propensity to have bouts of head-banging .” (Emphasis in original.) Dr. Dragovic also opined that had he done the autopsy, he would not have called Jamila a victim of child abuse, and th at Dr. Kesha had not properly documented that the lesions Dr. K esha called bruises were actua lly bruises.

Perhaps equally helpful to the defense, Dr. Dragovic also call ed into question the competency of Dr. Kesha’s autops y report. Dr. Dragovic pointed out that when he performed the autopsy, Dr. Kesha did not realize that Jamila’s brain was malf ormed; Dr. Kesha admitted this rather striking oversight at the trial. 9 Further, Dr. Dragovic is a far more experienced pathologist than is Dr. Kesha. Despite his antagonism toward Wayne County, he has served as the Oakland County Medical Examiner for many years, and has a much broader range of experience than did Dr. Kesha, who finished his residency training in 2012.

By rejecting Dr. Dragovic’s t estimony and proceeding to defendGordon with his madeup, evidence-free theory, McWilliams fought a duel with an unlo aded gun, and with the bullets in his pocket. McWilliams’ ineffectiveness is particularly gl aring in light of the fact that he had promised the jury in his opening statement that it would hear f rom an expert witness who disagreed with Dr. Kesha.

8 By casting doubt on whether Jamila had been the victim of chil d abuse, Dr. Dragovic’s report and testimony rebutted the first element of an aiding and abett ing charge: that the crime was committed by another person.

9 Dr. Dragovic’s report states: “Despite the severe mental retar dation and the obvious microcephaly with the documented brain weight of 843 grams, (i. e. about 30% of the brain tissue missing because it never developed), this child’s brain is deem ed without abnormality.”-23- Several courts of appeal have held that a defense attorney’s d ecision to break a promise made during opening statement may qualify as ineffective assist ance of counsel. In United States ex rel Hampton v Leibach , 347 F3d 219, 257 (CA 7, 2003), the Court of Appeals for the Seventh Circuit found counsel ineffective for having “reneged o n his promises” to present evidence through certain witnesse s “without explaining to the j ury why he did so.” “Turnabouts of this sort may be justified wh en ‘unexpected developments . . . warrant . . . changes in previously announced trial strateg ies,’ ” the Seventh Circuit e xplained, but “when the failure to present the promised testimony cannot be chalked up to unforese eable events, the attorney’s broken promise may be unreasonable, for ‘little is more damagin g than to fail to produce important evidence that had been promised in an opening.’ ” Id . (citations omitted, alterations in original). See also Johnson v State , 145 SW3d 97, 119 (Tenn Crim App, 2004) ( “ In the instant case, trial counsel failed to keep their promises to the jury, without a reasonable basis for such departure. All potential pitfal ls regarding Dr. Schacht’s test imony were known and considered by counsel prior to trial .”).

We are unpersuaded by McWilliams’ claim that Dragovic’s report supported his decision against calling Dragovic at trial. McWilliams received Dragovic’s report several days before the trial. He knew what Dr. Dragovic had to say, which was that pn eumonia caused Jamila’s death and was unrelated to the pancr eatic laceration, and that Dr. Ke sha’s autopsy was incorrect in other respects. Nothing changed during the trial, other than M cWilliams’ failure to elicit any concessions supporting his theory from Dr. Kesha. Nor did McWi lliams ever explain what had happened to the expert he promised to produce. But McWilliams’ broken promise, standing alone, would not require us to rev erse Gordon’s conviction.

McWilliams’ strategic decision to rest Gordon’s defense on a s cientific theory that lacked any evidentiary support was fundamentally unsound strategy and constitutionally ineffective, given that an expert was prepare d to testify that the child’s d eath was not the result of child abuse. The Supreme Court’s holding in Ackley is instructive:

Given the centrality of expert t estimony to the prosecution’s p roofs and the highly contested nature of the underl ying medical issue, counsel commi tted exactly that kind of error by failing to consult an expert who could meaning fully assist him in advancing his theory of defens e and in countering the prosecuti on’s theory of guilt. [ Ackley , 497 Mich at 393-394.]

Here, the jury heard only the prosecution’s evidence that a vi olently inflicted kick or punch to Jamila’s abdomen lacerated her pancreas, which led to pneumonia and her death. Dr. Dragovic disagreed that a punch or a kick were ever delivered, given that no other organs were injured, and that the laceration led to pneumonia. We conclude that McWilliams’ decision not to present Dr. Dragovic’s testimony fell below an objective standa rd of reasonableness. Strickland
, 466 US at 688.

C. PREJUDICE

But for McWilliams’ deficient performance there is a reasonabl e probability that the outcome of Gordon’s trial w ould have been different.-24- Gordon’s conviction for first-degree child abuse turned on whe ther the jury believed that she had aided and abetted Thomas’s physical abuse of the child. Her jury heard only the testimony of Dr. Kesha, which supported that Thomas had intenti onally harmed Jamila by delivering a blow that lacerated her pancreas. 10 Dr. Dragovic cast consid erable doubt on whether Jamila’s pancreatic injury had been intentionally inflicted. H e offered innocent explanations for the pancreatic tear, and testif ied that as an experienced patho logist he would not have deemed her a victim of child abuse. This evidence “would have provide d the jury with another viable and impartial perspective on the facts of the case while contra dicting the prosecution’s theory[.]” Ackley , 497 Mich at 394.

No direct evidence supported th at Thomas had abused the child, or that Gordon had aided and abetted him. While the circu mstantial evidence suggested that Gordon was grossly negligent in failing to obtain medical attention for Jamila, that evidenc e supported only her conviction for involuntary manslaughter. To prove that Gordon aided and abett ed Thomas in abusing the child, the prosecution had to convince the jury that Thomas had, in fa ct, intentionally or knowingly perpetrated the abuse. As McWilliams recognized, creating a re asonable doubt as to whether Jamila was abused was the key to Gordon’s defense of this charg e. The only evidence McWilliams employed was Gordon’s own testimony. And her credib ility was seriously damaged by her admission that due to her intoxication, she had neglected to take Jamila to the doctor for her head injury.

“Had an impartial, scientifica lly trained expert corroborated the defendant’s theory, the defendant’s account of the child’s death would not have existedin a vacuum of [her] own selfinterest.” Id . Gordon testified that she did not perceive the lesions on Ja mila’s body as bruises. Dragovic supported this percepti on, suggesting that other condi tions could account for the changes in the appearance of Jam ila’s skin, and that Dr. Kesha had failed to properly document that the lesions were actually bruises by studying them microsc opically. Gordon also professed her disbelief that Thomas had i ntentionally abuse d her daughter ; again, this testimony would have been corroborated and bolstered by Dr. Dragovic. As in Ackley
, “expert testimony was not only integral to the prosecution’s ability to supply a narrativ e of the defendant’s guilt, it was likewise integral to the defenda nt’s ability to counter that narrative and supply his own.” Id . In other words, without Dr. Dragovic’s support for her defense tha t she had not aided or abetted intentional abuse of the child, Gordon had no defense at all. To satisfy Strickland ’s second prong she need not show that Dr. Dragovic’s “more likely than n ot” would have produced an acquittal, 466 US at 693, only th at there exists “a probability sufficient to undermine confidence” in the verdict. Id . at 694.

We know that another jury saw the same documentary evidence an d heard the same testimony—other than Gordon’s but including Dragovic’s—and acqu itted Thomas on the charge of first-degree child abuse. In a sense, that jury serves as a control for Strickland ’s second prong. Evaluating whether a reasonable probability of a different outc ome exists is always a speculative

10 Under MCL 750.136b(2), “A person is guilty of child abuse in t he first degree if the person knowingly or intentionally cause s serious physical or serious m ental harm to a child.”-25- endeavor, but here, irrefutable evidence exists that a jury exp osed to Dr. Dragovic’s views rendered a different verdict.

In summary, the crux of the prosecution’s case was Dr. Kesha’s testimony that Jamila’s pancreatic laceration was delibe rately inflicted, a necessary e lement of first-degree child abuse. Dr. Dragovic countered this evid ence with his testimony that th e laceration could have occurred accidentally, and that Dr. Kesha’s theory of how the injury occ urred was not scientifically valid. A jury that heard both Drs. Kesha and Dragovic apparently rejec ted Dr. Kesha’s view. In light of their verdict, Dragovic’s ab sence during Gordon’s trial rais es a reasonable probability of her acquittal and undermines confidence in the jury’s guilty verdic t. 11

D. ROSE BONACI

We need not consider whether McWilliams performed ineffectivel y by failing to call Bonaci as a witness, because her testimony is not reasonably li kely to have altered the outcome. Bonaci last saw Jamila before the child had sustained her head wound, and likely before the serious abuse occurred.

We affirm in Docket No. 329448, but vacate defendant Gordon’s convictions and sentences and remand for a ne w trial in Docket No. 329449. We do not retain jurisdiction.

/s/ Peter D. O'Connell /s/ Elizabeth L. Gleicher /s/ Mark T. Boonstra

11 Although Dr. Dragovic’s testimony most readily applied to the child abuse charge, counsel’s constitutionally deficient per formance requires vacation of bot h convictions. “Unless the accused receives the effective assistance of counsel, ‘a seriou s risk of injustice infects the trial itself.’ ” Cronic , 466 US at 656, quoting Cuyler v Sullivan , 446 US 335, 343; 100 S Ct 1708; 64 L Ed 2d 333 (1980). See also People v Dixon , 263 Mich App 393; 688 NW2d 308 (2004) (B ANDSTRA , J. concurring and S CHUETTE , J. concurring in part a nd dissenting in part).