Michigan Supreme Court Lansing, Michigan

Bridget M. McCormack

, Chief Justice

David F. Viviano,
Chief Justice Pro Tem

Stephen J. Markman

Brian K. Zahra

Richard H. Bernstein

Elizabeth T. Clement Megan K. Cavanagh,
Justices 

# Order

June 5, 2020

159619

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff

- Appellee,

v SC: 159619 COA: 340377 Macomb CC: 2016

- 000712

- FC BRAD STEPHEN HAYNIE, Defendant

- Appellant.

_________________________________________/

On order of the Court, leave to appeal having been granted and the briefs and oral arguments of the parties having been considered by the Court, we REVERSE that part of

the April 16, 2019 judgment of the Court of Appeals addressing jury instructions and we REMAND this case to the Macomb Circuit Court for a new trial before a properly instructed jury. See M Crim JI 17.2.

On the basis of the prosecutor’s concession, we assu me without deciding that assault and battery, MCL 750.81(1), is a lesser included offense of assault with intent to commit murder, MCL 750.83. The trial court erred by refusing to give the requested jury

instruction because a rational view of the evidence supported a conviction for assault and battery. See People v Cornell , 466 Mich 335, 357 (2002). This error was not harmless as the evidence clearly supported an instruction on assault and battery. See id

. at 363

- 366.

A requested instruction on a lesser included offense is proper if the greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support it. Id . at 357. T here was evidence presented at trial that defendant had the intent necessary for assault and battery

— that he either intended to commit a battery upon his mother, Patricia, or intended to make her reasonably fear an immediate battery. See People v Johnson

, 407 Mich 196, 210 (1979). However, the prosecutor argued that no rational view of the evidence in this case supports a conviction for anything less than assault with intent to commit great bodily harm less than murder. Whether the instruction on the les ser included offense should have been given thus turns on whether a rational view of the evidence supported the conclusion that defendant lacked both the intent to kill and the intent to do great bodily harm. See Cornell , 466 Mich at 345. Patricia testif ied that she believed defendant lacked even the intent to commit great bodily harm against her

— he had “gone out of his way his whole life, even as a toddler, to keep [her] from any kind of pain.” Defendant’s sister testified that defendant and Patricia ha d a loving relationship, and there was no testimony that defendant and Patricia had any kind of falling out that might have motivated an intent to seriously harm or murder her. Defendant’s statements2

to Patricia during the assault suggested that his inten ded purpose was to help his mother by ridding her of the devil

— “[M]om, I’ve got to save you, Lucifer has you . . . .” Because “believability is for the jury to decide, not appellate judges,” People v Silver

, 466 Mich 386, 394 (2002), the jury could have c hosen to believe this testimony. A rational view of these facts regarding defendant’s intent would allow a jury to conclude that defendant committed assault and battery.

The dissenting statement argues that defendant has offered insufficient evidence to obtain the instruction on the lesser offense, relying on the severity of Patricia’s injuries in contrast. But, as observed by the dissenting opinion in the Court of Appeals, “there is no quantum of injury necessarily associated with an assault and batt ery.” People v Haynie

, 327 Mich App 555, 571 (2019) (G LEICHER , J., dissenting). While the severity of injury bears on intent, it is not necessarily dispositive, and the jury should be free to make its own determination after weighing the evidence.

We further conclude that this error was not harmless given that the evidence clearly supported an instruction on assault and battery. See Cornell , 466 Mich at 363

- 366. 1 As was the case in Silver , defendant’s alleged victim corroborated his theory of the

cas e by testifying that she did not believe defendant intended to injure her. In addition, defendant’s sister’s testimony and the absence of testimony indicating a heightened intent supported defendant’s theory. Not giving the jury an instruction that allow ed them to consider defendant’s comparative guilt as to assault and battery undermines the reliability

of the verdict. See Silver , 466 Mich at 393. Accordingly, we REVERSE the judgment of the Court of Appeals and REMAND to the circuit court for a new tri al.

We do not retain jurisdiction.

C LEMENT , J. ( concurring ).

I concur in full with the Court’s order. Because the People have conceded the issue of whether assault and battery is a necessarily included lesser offense of assault

with intent to murder, we do not decide the issue today. I write separately to go over the questions that I believe will need answering if we take up this issue in the future.

1 In his partial dissent, Justice Z AHRA challenges whether “ this Court can simply make a determination as to whether instructional error of this kind undermines the reliability of the verdict without prior appellate review,” given that the Court of Appeals in Silver had considered the issue. However, the Court of Appeals did not consider whether the error

in Cornell was harmless, yet that was the dispositive reason for this Court denying that defendant a new trial, so we believe that there is ample precedent for this Court resolving the question “without prior appe llate review.”3

As a general matter, when an offense consists of “different degrees,

. . . the jury, or

the judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment and may find the accused person guilty of a degree of that offense inferior to that charged in the indictment

. . . .” MCL 768.32(1). There has, over the years, been much debate about how to implement this statute, which, as we

noted in People v Cornell , 466 Mich 335, 341 (2002), has been around in substantially identical form since 1846. The recurring issue is how to identify which les ser offenses a jury should be instructed upon, such that it could return a verdict as to an “offense inferior to that charged in the indictment.”

One rule is to instruct on “cognate” offenses based on the facts adduced at trial. Thus, in People v Jones

, 395 Mich 379 (1975), overruled by Cornell , 466 Mich at 357, the defendant was charged with second

- degree murder. The trial testimony was that the defendant shared an apartment with the victim; on a particular day, a friend of the victim’s came to visit, and while the victim and her friend were chatting in the kitchen, the defendant got a shotgun from a closet, aimed it at the victim, and fired it, killing her.

Id . at 384

- 385. The defendant testified on his own behalf and conceded that he had

obtained th e shotgun from the closet, but claimed that he had only intended to brandish it for the purpose of scaring the visitor into leaving; he asserted that he did not know the weapon was loaded, that he did not intentionally aim it at anyone, and that the weapon only accidentally discharged when he was bumped by the visitor (who he had successfully induced into fleeing). Id . at 385. The jury was instructed as to second

degree murder and voluntary manslaughter, but the trial court rejected the defendant’s

reques t to instruct the jury as to MCL 752.861, which criminalizes killing or injuring a person with the careless, reckless, or negligent discharge of a firearm. Id . at 385

- 386. We adopted a rule that “[i]f the lesser offense is of the same class or category, or closely related to the originally charged offense, so as to provide fair notice to the defendant that he will be required to defend against it, the lesser offense is or may be included within the greater.” Id . at 388. While MCL 752.861 is not a necess arily included lesser offense of

second

- degree murder

— because MCL 752.861 requires the use of a firearm, while

second

- degree murder does not

— we held under this test that the jury should have been instructed as to MCL 752.861 anyway. “Because the evidence adduced at trial would have supported a guilty verdict on the offense of careless, reckless or negligent discharge of firearms causing death, the trial court was required to

. . . instruct the jury that such

offense was a lesser included offense of the cha rge of second

- degree murder.” Id . at 390.

In Cornell , we rejected this rule of “cognate” lesser offenses. Instead, we held that a jury could only be instructed under MCL 768.32(1) as to necessarily included lesser offenses. We repudiated the Jones rul e and said a regime of necessarily included lesser

offenses was more faithful to the text of the statute. Cornell , 466 Mich at 354. In doing so, we also concluded that requiring that a lesser included offense be necessarily included

was more consistent w ith Hanna v People , 19 Mich 316 (1869), an early case that had construed what is now codified as MCL 768.32(1). Cornell remains our controlling4

interpretation of the statute, so Michigan requires that a lesser offense be necessarily included in the charge d offense for a jury to be instructed as to a lesser offense.

This contrast between Cornell ’s “necessarily included” rule and the preceding caselaw played out in the Court of Appeals’ disposition of this case. The majority, which

held that assault and b attery is not a lesser included offense of assault with intent to murder, did so on the basis of People v Ross , 73 Mich App 588 (1977). In Ross , the Court of Appeals was implementing our rule from Jones . In particular, Ross drew on

some discussion in Jones of People v McDonald , 9 Mich 150 (1861). In McDonald , the defendant had been charged with assault with intent to murder, and we held that the defendant could also be convicted of assault and battery on such a charge. We observed

in Jones that “unde r a strict ‘ necessarily included’ test, an assault and battery offense would not be included, as battery is an element not required for the higher assault with intent to murder offense,” and concluded that McDonald was evidence that we had not always consi stently adhered to a line between “cognate” lesser included offenses and “necessarily” included lesser offenses. Jones , 395 Mich at 389. On the strength of the

remark in Jones

, Ross then remarked that “[a]ssault and battery is not an offense necessarily included within the crime of assault with intent to murder.” Ross , 73 Mich App at 592. And, on the strength of Ross , the Court of Appeals here held that “assault and battery is not a lesser included offense of assault with intent to murder.” People v

Ha ynie , 327 Mich App 555, 561 (2019). Judge G LEICHER dissented. She observed that

Ross had depended upon Jones , and Jones was overruled in Cornell . She preferred to

look to Hanna , a case in which the defendant was charged with assault with intent to

murde r and, we held, was properly convicted of assault and battery. Since we had expressly looked to Hanna as the controlling law in Cornell , she argued that “ Hanna answers the question presented in this case.” Id . at 569 (G LEICHER , J., dissenting).

The pro blem is that Jones misconstrued McDonald , and Cornell misconstrued

Hanna . If Jones stands for the proposition that a jury can be instructed on cognate lesser offenses based on the facts adduced at trial, and Cornell stands for the proposition that the jur y can be instructed only on necessarily included lesser offenses, then McDonald

and Hanna employed a third rule: that a jury can be instructed on lesser offenses that are

included within the narrative allegations of the charging document . This rule “look s to the pleadings to determine whether the offense has been sufficiently alleged and allows any lesser included offenses if alleged in the information” and is described as “the

cognate

- pleadings theory.” Koenig, The Many

- Headed Hydra of Lesser Included

O

ffenses: A Herculean Task for the Michigan Courts , 1975 Det C L Rev 41, 43, 49. Thus, in McDonald , the information alleged that the defendant “unlawfully ma[d]e an assault” on the victim and, in doing so, did “beat, wound and ill treat, with intent . . . unlawfully, feloniously and carnally to know and abuse.” McDonald , 9 Mich at 150. In other words, the defendant was charged with assault with intent to rape, in violation of 1857 CL 5730. But, in the course of making such a charge, the information alleg ed that he “beat, wound[ed] and ill treat[ed]” the victim, so the jury could find the defendant guilty of simple assault and battery, since physical contact was alleged. Similarly, in5

Hanna , 19 Mich at 317, it was alleged that the defendant “ ‘with a cert ain piece of iron, the same being a dangerous weapon, which he,

. . . in his right hand then and there held, feloniously did beat, bruise and wound one John Shine, with intent

. . . feloniously, wilfully, and of his malice aforethought, to kill and murder the said John Shine,’ ” as well

as that he “ ‘did make an assault, and did beat, choke, wound and strike him, the said John Shine, with intent

. . . then and there feloniously, wilfully, and of his malice aforethought, to kill and murder’ ” the victim. In other words, he was charged with assault with intent to murder while armed, and assault with intent to murder, in violation of 1857 CL 5724 and 5726. We held “that assaults are substantially and in effect divided by the statute into degrees; and that an indictment for any of the higher grades, or assaults with various degrees of aggravation, must include the inferior degree of simple assault; or, if the higher degree is charged including a battery, as in the present case, the simple assault and battery ar e included

. . . .” Id . at 322

- 323. The juries in McDonald and

Hanna could convict on assault and battery, not because it was necessarily included in the charged offenses, but rather, because the factual allegations in each information supporting the cha rged offenses recited a battery. 2

To say that Cornell misunderstood Hanna is not to say that Cornell misinterpreted MCL 768.32(1), however. It seems apparent that criminal charges are made somewhat differently today than they were at the time of Hanna . What I do not know is what, exactly, has changed

— is it simply a matter of convention? Have the legal standards changed? Perhaps a law or court rule has been amended? And when did that occur? The

rule in Hanna does not seem to map all that well onto contemporary criminal procedure, meaning that it requires a degree of “translation” to apply it today

— but to do so, I would certainly find it helpful to learn more about what changed and when it changed.

In addition, translating the rule under Hanna and its progeny to contemporary practice requires getting to the bottom of what the actual rule was. There are, unfortunately, many mysteries in the cases that follow. The actual assault and battery statute, MCL 750.81(1), provides that “a person who assault s or assaults and batters an individual . . . is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both.” Per the terms of the statute, then, it

is a matter of indifference whether a batter y occurred; a simple assault, whether or not paired with a battery, is a 93

- day misdemeanor. Much as with MCL 768.32(1), this has basically been the case since 1846; at that time, the maximum punishments were one year in jail or $200, but the statute was equally indifferent to whether a battery occurred. See

2 To the extent there is any doubt that this was the rule being employed in McDonald and

Hanna , it is put to rest by People v Ellsworth , 90 Mich 442 (1892). There, we held that while the information was “not as clear and precise as it might have been,” it alleged that

the defendant “ ‘bruise[d], wound[ed], and ill

- treat[ed]’ ” the victim, i d . at 447, and thus a

conviction for assault and battery was available under Hanna when the defendant was charged with assault with intent to do great bodily harm less than murder.6

1846 RS, ch 153, § 29. As we noted in McDonald and Hanna , where a complaint alleged some more serious assault, this statute put simple assault (or assault and battery) at the

bottom of the stack of c rimes for which the defendant could be convicted. At times, though, our cases have suggested that we are not as indifferent to the distinction between simple assault and assault and battery as the statute appears to be. In Turner v Muskegon Circuit Judge , 88 Mich 359 (1891), the defendant was charged with assault with intent to do great bodily harm less than murder, and she was found guilty of assault and battery. The defendant moved to have the verdict set aside, because the charging document did

not sp ecifically allege a battery. The prosecutor moved to amend the information to insert battery

- specific language (“did beat, wound, and ill treat”), but the trial court released the defendant without ruling on the prosecutor’s motion. Id . at 360. The

pros ecutor sought a writ of mandamus in this Court against the circuit judge to compel the circuit court to vacate its order releasing the defendant and issue a judgment on the verdict, 3 but we held that the writ must be denied because “[i]t [was] plain that t he information could not be amended so as to include the offense for which the jury convicted the [defendant].” Id . at 361. However, in People v Andre , 194 Mich 524 (1917), the defendant was charged with assault with intent to do great bodily harm less

t han murder, and he was ultimately convicted of assault and battery. Relying on Turner

, we said that he could not be convicted of assault and battery if no battery was alleged in the charging document. However, we held that “[i]t does not follow

. . . tha t the verdict must fail entirely,” because “[t]he jury could not have returned a verdict of assault and battery without finding that an assault had been committed,” meaning that “[t]he verdict

should stand as a conviction for an assault.” Id . at 527.

I struggle to reconcile Turner and Andre . On first glance, it appears that in

Turner , the defendant walked free on the technicality that the jury had returned a verdict of guilty on assault and battery , and the narrative in the information alleged no batter y as such. Yet in Andre , I gather that the same technical defect was in the pleadings, but we held not that the defendant would go free, but rather that the verdict would be amended to a conviction for simple assault. Andre also confuses me because the d efendant was sentenced to 60 days in jail, id . at 526, and we set aside that sentence because it “was greater than is allowed in case of an assault,” id . at 527. But 1915 CL 15220 provided that the maximum punishment for simple assault was one year in jai l, which is much greater than 60 days. We cited People v Harrington , 75 Mich 112 (1889), in support, but

I do not see how Harrington fits

— it held that “for a conviction at the circuit of a crime within the jurisdiction of a justice [of the peace] no great er punishment can be given than could be imposed by a justice,” id . at 113

- 114, and because the sentence in Harrington

was for four months in jail but a justice of the peace could impose no more than three months, the sentence was not “wholly void” but rat her capped at three months, id . at 114.

3 Incidentally, it is also not clear to me why this argument came before this Court in the form of a complaint for mandamus against the trial court judge, rather than an appeal from the trial court’s order releasing the defendant.7

Given that the 60 days in Andre is less than the three months in Harrington , I do not see

how Andre follows from Harrington

.

A common theme of the cases that seem to insist upon a technical distinction

between “as sault” and “assault and battery” is that they pay little heed to the statutory text, which, as noted, imposes no different punishment for assaults and assaults paired with batteries. This appears to me to be the case in Turner and Andre , but it is not lim ited

to them. In People v Burk , 238 Mich 485 (1927), the defendant was charged with assault with a dangerous weapon, and the trial judge charged the jury to determine whether, if they could not find him guilty of that, they could find him guilty of assaul t and battery; and, if they could not find him guilty of that, to determine whether he was guilty of simple assault. While this clearly seems to contemplate them as different crimes, it offers little insight into why the jury would need to be instructed i n this fashion in light of the statutory text. I face similar confusion in People v Kynerd , 314 Mich 107 (1946), in which the defendant was charged with assault with a dangerous weapon, and the judge charged the jury to consider whether the defendant was either guilty as charged, guilty of assault and battery, or not guilty. He was convicted as charged, but he argued on appeal that the judge should have given the jury the option of convicting him of assault and battery. We rejected his argument, but agai n did little to analyze the actual statutory text.

Of course, perhaps there is a reason these cases did not engage with the statutory text. It could be that the outcome in those cases turned on our use of the “cognate

pleadings” rule. If so, the result s in those cases may offer us little illumination about how things should work today

— although to decide that with confidence, it would be helpful to learn how and when we moved away from our prior practices in charging defendants with crimes. Perhaps we w ould learn instead that the older cases are applicable to today, but some of them were simply wrong when they were decided

— for example, perhaps

Turner and Andre are not reconcilable. Or perhaps there are appropriate analogies to

draw

— for example, if in An dre the defendant’s conviction of assault and battery could be amended to a simple assault, perhaps we can conclude that where (as here) a defendant asks for an assault and battery instruction when a simple assault instruction may have been more precise, t hat should not be fatal to his appeal. Then again, maybe all of these

cases are flawed

— not just Turner and Andre , but also Burk and Kynerd

— for not having been as attentive to the statutory text as we are now. Maybe there is a ghost in this particular law machine that I simply have not identified which connects these dots in some other fashion. I have no particular view on what the “right” answer is

— but I believe that for this Court to find that answer, we will benefit from assistance answering these ques tions.

Z AHRA , J. ( concurring in part and dissenting in part ).8

I concur with the majority’s decision to accept, without deciding, the prosecution’s concession that assault and battery 4 is a lesser included offense of assault with intent to

commit murder. 5 I also concur with the majority’s determination that “a rational view of the evidence supported a conviction for assault and battery.” I write separately to express my opinion that t he case should be remanded to the Court of Appeals for a determination

as to whether the trial court’s instructional error was harmless.

In this case, the Court of Appeals, in a split decision, held that “[b]ecause of the brutality of the assault, no rational view of the evidence could support a finding of simple assault and battery.” 6 Having made this determination, the majority concluded “that the trial court did not err by refusing to give an instruction on assault and battery.” 7

Under this Court ’s guidance in People v Cornell , if an instruction on a lesser included offense should have been given to the jury at trial, but was not, reversal is not

warranted unless the instructional error was not harmless. 8 This Court explained that even if a jury should have been given a requested instruction, a trial court’s error in failing to give the instruction is not grounds for reversal of criminal convictions unless

the error was “ ‘outcome determinative’ because it undermined the reliability of the

verdict ,” stating:

[T]he reliability of the verdict is undermined when the evidence “clearly” supports the lesser included instruction, but the instruction is not given. In other words, it is only when there is substantial evidence to support the requested inst ruction that an appellate court should reverse the conviction. As we must consider the “entire cause” pursuant to MCL 769.26, in analyzing this question, we also invariably consider what evidence has been offered to support the greater offense.

Also, it is important to note that this “substantial evidence” standard for determining whether reversal is required on the basis of an instructional error differs from the standard for determining whether the error occurred. As discussed, an evidentiary dispute s upported by a rational view of the evidence regarding the element that differentiates the lesser from the greater offense will generally require an instruction on the lesser offense. However, more than an evidentiary dispute regarding the element that

dif ferentiates the lesser from the greater offense is required to reverse a

4 MCL 750.81(1).

5 MCL 750.83.

6 People v Haynie , 327 Mich App 555, 563 (2019).

7 Id

.

8 People v Cornell , 466 Mich 335, 363

- 365 (2002).9

conviction; pursuant to MCL 769.26, the “entire cause” must be surveyed. [ 9 ]

Because a majority of this Court has indicated its belief that a rational view of the evidence supported t he requested instruction on assault and battery, it may be said that the Court of Appeals majority erred in its holding to the contrary. But neither the Court of Appeals majority nor the dissenting judge, for that matter, applied the second step of

the Co rnell analysis at all

. 10 Thus, at this juncture, a majority in this Court has decided

the harmless

- error question without any prior appellate review from the Court of Appeals. The decision to remand the case to the trial court is therefore, in my view,

pr emature.

The majority cites this Court’s decision in People v Silver

, 11 seemingly as support for the notion that this Court can simply make a determination as to whether instructional error of this kind undermines the reliability of the verdict without pr ior appellate review. But even in that case, the Court of Appeals devoted some analysis to whether the

instructional error involved constituted harmless error. 12 This is not the case here. In the instant matter, absolutely no prior appellate review as to whether the instructional error at issue was harmless has taken place. And, given the nature of the facts under review, I am

hard

- pressed to conclude, as the majority has, that the trial court’s failure to provide a jury instruction on assault and batter y undermined the reliability of the verdict, entitling

defendant to a new trial.

Moreover, I am not satisfied by the majority’s response that Cornell , itself, supplies “ample precedent” for this Court’s undertaking of the harmless

- error issue without pri or appellate review. I acknowledge that the Court of Appeals, in Cornell , did

9 Id . at 365

- 366.

10 See Haynie , 327 Mich App at 563; id . at 571

- 572 ( G LEICHER , J., dissenting).

11 People v Silver , 466 Mich 386 (2002).

12 People v Silver , unpublished per curiam opinion of the Court of Appeals, issued May 23, 2000 (Docket No. 212508), pp 2

- 3, rev’d 466 Mich 386 (2002). Admittedly, the Court of Appeals in Silver assessed the harmlessness of the instructional error not via the

Cornell “substantial evidence” test, but rather by the standard set forth by this Court in People v Lukity , 460 Mich 484, 496 (1999): “whether it is more probable than not that a

different outcome would have resulted without the error.” Silver , unpub op at 2. This is likely because the Court of Appeals decided Silver more than two years before this

Court’s decision in Cornell

. Nevertheless, the point remains that when this Court addressed the issues presented in Silver , it did so after the Court of Appeals had already given some measure of discussion to whether the instructional error under review was

harmless.10

not consider whether any instructional error was harmless. 13 But at the time, Michigan jurisprudence lacked uniformity as to the correct analysis applicable to claims of

instruc tional errors involving lesser included offenses. 14 This Court was accordingly tasked with clarifying the proper analytical framework in the first instance. 15 It is not at all remarkable or surprising that the Court of Appeals failed to apply a harmless

- er ror analysis when the rules governing the outcome of the case were as of yet unclear. Further, as the majority points out, this Court denied the defendant a new trial in

Cornell

. 16 I question whether this Court would have addressed the harmless

- error issu e without prior appellate review if it had determined

— as the majority has in the instant

matter

— that the defendant might have shown that he was entitled to a new trial.

I would reverse that part of the Court of Appeals’ judgment addressing jury

instructi ons and would remand the case to the Court of Appeals for consideration of whether the trial court’s instructional error was harmless under this Court’s guidance in

Cornell

.

M ARKMAN , J. ( dissenting ).

As with the majority, I accept the prosecutor’s conc ession that assault and battery constitutes a necessary lesser included offense of assault with intent to commit murder (AWIM) and assault with intent to do great bodily harm (AWIGBH). However, I respectfully disagree that defendant here was entitled to a n instruction on mere assault and battery and that both the trial court and the Court of Appeals erred by understanding differently. I further disagree with the Court’s decision to reach the harmless

- error issue rather than remanding to the Court of Appea ls for initial consideration of this issue.

An instruction on a lesser included offense is proper “if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser

included offense and a rational view of the evidence would support it.” People v Cornell

, 466 Mich 335, 357 (2002). For a rational view of the evidence to support the lesser offense, there must be conflicting evidence on the element that varies in degree between the charged offense and the les ser included offense. Id . at 361. The element in dispute between the three aforementioned offenses is the extent of apprehension or injury

13 See People v Cornell , unpublished per curiam opinion of the Court of Appeals, issued November 2, 1999 (Docket No. 211215), p 3, rev ’d in part 466 Mich at 361.

14 Cornell , 466 Mich at 353 (“[M]any of our more recent decisions concerning lesser

included offenses have di sregarded the statute and much of the older case law. Having done so, we now must decide how to reconcile these divergent approaches to lesser included offense instructions.”)

.

15 Id . at 353

- 361.

16 Id . at 367.11

intended by the defendant. For an assault and battery, a defendant need only intend “either to commit a battery up on [the complainant] or to make [the complainant] reasonably fear an immediate battery.” M Crim JI 17.2(3). Meanwhile, the offenses of AWIM and AWIGBH require respectively, as their names suggest, a showing that defendant “intended to kill the person he assaulted” or “intended to cause great bodily harm.” M Crim JI 17.3(4), 17.7(4). “Great bodily harm means any physical injury that could seriously harm the health or function of the body.” M Crim JI 17.7(4).

The trial court concluded that a rational v iew of the evidence did not support defendant’s having possessed only an intent to commit a battery or place the victim in fear of a battery. And this Court reviews such a determination for an abuse of discretion. People v Gillis , 474 Mich 105, 113 (2006 ) (“[A] trial court’s determination whether a jury instruction is applicable to the facts of the case is reviewed for an abuse of discretion.”) (quotation marks and citation omitted). “ ‘An abuse of discretion occurs

when the trial court’s decision falls outside the range of principled outcomes.’ ” People v

Anderson , 501 Mich 175, 182 (2018), quoting People v Seewald , 499 Mich 111, 116 (2016).

After review of the evidence, I cannot agree that the trial court abused its

discretion. “Intent to cause seri ous harm can be inferred from the defendant’s actions, including the use of a dangerous weapon or the making of threats.” People v Stevens

, 306 Mich App 620, 629 (2014). The injuries a victim sustains are also indicative of a defendant’s intent to injure

. Id .; see also M Crim JI 17.7(4) (“Actual injury is not necessary, but if there was an injury, [the jury] may consider it as evidence in deciding whether the defendant intended to cause great bodily harm.”). Here, moments before commencing his attack on his 76

- year

- old mother, defendant stated that he “was going to have to twist [her] arms into knots and lift [her] up and shake [her] until he got Lucifer to let go.” Thereafter, defendant picked the victim up by the arms and shook her violently.

While t he victim was calling the police, defendant punched the victim with such force as to knock her unconscious with a single blow. And then, while the victim lay unconscious, defendant retrieved a “fairly heavy” wooden and metal bar with horseshoes

welded ont o it and struck the victim with sufficient force to crack and splinter the bar. As a result of the attack, the victim suffered two broken arms, a 4

- centimeter cut near her eye, a fracture to her C6 vertebra, and a 10

- centimeter laceration to her head. Th e police found the victim covered in blood, and the head laceration was of sufficient severity to necessitate paramedics inserting 17 staples into the victim’s head on the scene. Finally, as a result of these injuries, the victim was in intensive care for several days, in the hospital for two weeks, and in a nursing home/rehabilitation center for several months.

Under these circumstances, I cannot agree that the trial court reached a decision “outside the range of principled outcomes” when it determined that a rational view of the evidence did not support defendant intending a mere battery or placing the victim in fear of a mere battery. Most significantly, defendant’s use of the wooden and metal bar, after12

having rendered the victim unconscious, signifi es a clear intention to “seriously harm the health or function of the [victim’s] body.” M Crim JI 17.7(4).

Defendant in opposition cites two pieces of evidence. First, he points to the victim’s own testimony that she did not believe that defendant intended to cause her great bodily harm. Although this testimony certainly suggests a lesser intention, it is subjective and speculative (not to mention that the most severe of defendant’s predations occurred after he had rendered the victim unconscious) and the trial court was not obliged to have found this testimony to be of determinative value. 17 Second, he points to the testimony of three experts who testified as to his mental health, with two of these opining that defendant was legally insane at the t ime of the offense. While this testimony certainly afforded the jury a basis

-- arguably a strong basis

-- for concluding that defendant could not form any criminal intent, these expert opinions were ultimately rejected by the jury. Moreover, they cannot s erve as a legal basis for concluding that defendant possessed a

lesser criminal intent. For this Court has concluded that the Legislature,

by enacting a comprehensive statutory scheme setting forth the requirements for and the effects of asserting a defe nse based on either mental illness or mental retardation, . . . has signified its intent not to allow

a defendant to introduce evidence of mental abnormalities short of legal insanity to avoid or reduce criminal responsibility by negating specific

intent. [ People v Carpenter , 464 Mich 223, 226 (2001) (emphasis added).]

In other words, “the Legislature has created an all or nothing insanity defense.”

Id . at 237. And where this defense enables a jury to conclude that a defendant is devoid of criminal liability upon a finding of insanity, it does not allow a lessening or diminishing of the defendant’s specific intent based upo n his or her mental condition. Thus, the trial judge herself would clearly have erred had she relied upon defendant ’s mental health issues and claims of insanity to conclude that a rational view of the evidence supported the finding that defendant intended merely to batter the victim. Neither of the pieces of evidence relied upon by defendant gives rise to a reasonabl e conflict that would transform the trial court’s exercise of judgment into an “abuse of

discretion.”

17 Similarly, because defendant’s attack was ap parently a “spur of the moment” action and his sister was not present to witness it, the trial court was not obliged to accept that her testimony as to the relationship between the defendant and the victim was particularly

relevant to the court’s assessmen t of what had taken place.I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and co mplete copy of the order entered at the direction of the Court.

June 5, 2020

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Clerk For the above reasons, I respectfully disagree that the trial court here abused its discretion by concluding that a rational view of the evidence did not support instructing the jury on mere assault and battery. Accordingly, I would affirm defendant’s conviction.

However, even if I were to agree with the majority that the trial court abused its discretion by concluding that a rational view of the evidence did not support instructing the jury on assault and battery, I would dissent nonetheless from this Court’s decision to

reach the issue of whether the trial court’s fai lure to instruct the jury on assault and battery constituted harmless error. Not only do I concur with the observations in this regard in Justice Z AHRA ’s statement, but I also question whether this issue is even properly before this Court. Our grant orde r identified two questions for review: “(1) whether assault and battery is a necessarily included offense of assault with intent to commit murder; and if so (2) whether a rational view of the evidence in this case could support a conviction for assault and battery.” People v Haynie , 504 Mich 974, 974 (2019). The order clearly did not identify the harmless

- error issue as one for review, and thus the majority’s reliance on the fact that we reached the same issue in Silver and

Cornell

, despite the same lack of review below, is misplaced because our orders in both

of those cases expressly identified for review whether any error in failing to provide a

lesser

- included

- offense instruction was harmless. People v Silver , 463 Mich 959 (2001); People v Cornell , 463 Mich 958 (2001).

For the stated reasons, I respectfully dissent from the Court’s determination that the trial court abused its discretion by not instructing the jury on the offense of assault and battery. And I further dissent from its decision to reac h the issue of whether any error in failing to instruct the jury on assault and battery was harmless rather than remanding to the Court of Appeals for initial consideration of this issue.