If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

January 28, 2021

v No. 348588

Wayne Circuit Court

TONYA DESIRAE PETERSON, LC No. 18-006116-02-FH

Defendant-Appellant.

Before: JANSEN, P.J., and SERVITTO and RIORDAN, JJ.

PER CURIAM.

Defendant appeals as of right her jury trial conviction of involuntary manslaughter, MCL 

750.321. Defendant was sentenced to 17 months to 15 years’ imprisonment. We reverse, vacate 

defendant’s conviction and sentence, and remand for a new trial. 

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from the July 2018 death of the minor victim, who died after falling 

through a hole in defendant’s home. When the incident occurred, the victim lived in defendant’s 

home with her mother, Dasiah Jordan. Defendant, Tanisha Epps, Epps’s four children, and 

Jordan’s two other children also lived there. A room on the main floor of the house, “the blue 

room,” had a 13-inch by 16-inch hole in the floor that led directly to the basement. Before Jordan 

moved in, Epps covered the hole, and she and defendant used the blue room exclusively for 

storage. After Jordan moved into defendant’s home in March 2018, she converted the blue room 

into a bedroom for herself and her children. Jordan changed the lock on the door and was the only 

person in the house who had a key. By July 2018, the hole was covered with a piece of cardboard, 

and the basement was flooded with about a foot of standing water. Although it is unclear how 

long before the incident the basement flooded, Jordan’s 11-year-old daughter, SJ, testified that it 

was already flooded when she and her family moved in.

The night the incident occurred, defendant and Epps left Jordan at home with six of the 

children. Jordan later left as well, leaving the children home alone. The two oldest children, SJ 

and one of Epps’s daughters, were 10 years old. The youngest child, the victim, was 11 months 

old. SJ testified that Jordan did not lock the door to the blue room before she left. After defendant 
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returned home, one of the children stated that it appeared as though someone fell through the hole. 

Epps found the victim in the basement. The victim was declared dead later that night. Her cause 

of death was drowning.

At trial, the prosecution, defense counsel, and the trial court discussed the jury instructions. 

The prosecution’s proposed instructions described defendant as a “landlord.” At the prosecution’s 

request, the trial court changed the word “landlord” to “homeowner.” Defense counsel objected 

to the change, arguing that it also changed the prosecution’s theory of the case. The trial court 

instructed the jury as follows:

The defendant Tonya Peterson is charged with Count 2, the crime of Involuntary 

Manslaughter resulting from failure to perform a legal duty. To prove this charge 

the prosecutor much [sic: must] prove each of the following elements beyond a 

reasonable doubt.

First, that the defendant had a legal duty to [the victim]. The legal duty 

charged here is to provide a safe environment as the homeowner and the babysitter 

of [the victim]. Second, the defendant knew of the facts that gave rise to the 

duty . . . .

Third, that the defendant willfully neglected or refused to perform that duty. 

And her failure to perform it was grossly negligent to human life. Forth [sic], that 

the death of [the victim] was directly caused by the defendant’s failure to perform 

this duty. That is, that [the victim] died as a result of the defendant’s failure to 

provide a safe environment.

During closing arguments, the prosecution defined gross negligence, and defense counsel briefly 

applied the concept of gross negligence to the facts of the case. Defense counsel primarily focused 

on the defense theory that Jordan, not defendant, caused the victim’s death. Ultimately, the jury 

convicted defendant of involuntary manslaughter, and the trial court sentenced defendant as noted 

supra. This appeal followed. 

II. STANDARD OF REVIEW

Defendant first argues the trial court erroneously instructed the jury on the duty element of 

involuntary manslaughter. We agree. 

“Generally, [t]his Court reviews de novo claims of instructional error. People v Spaulding, 

___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 348500); slip op at 7 (quotation 

marks and citation omitted; alteration in original). “Jury instructions are reviewed in their entirety 

to determine if there is error requiring reversal.” Id. at ___; slip op at 8 (quotation marks and 

citation omitted).

III. ANALYSIS 

“A criminal defendant has a constitutional right to have a jury determine his or her guilt 

from its consideration of every essential element of the charged offense.” People v Miller, 326 

Mich App 719, 727; 929 NW2d 821 (2019), citing People v Kowalski, 489 Mich 488, 501; 803 
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NW2d 200 (2011) (quotation marks omitted). “A court must properly instruct the jury so that [it] 

may correctly and intelligently decide the case. The instruction to the jury must include all 

elements of the crime charged, and must not exclude from jury consideration material issues, 

defenses or theories if there is evidence to support them.” People v Traver, 502 Mich 23, 31; 917 

NW2d 260 (2018) (quotation marks and citations omitted) (alteration in original). “[I]nstructional 

errors that omit an element of an offense, or otherwise misinform the jury of an offense’s elements, 

do not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for 

determining guilt or innocence.” Id. at 34 (quotation marks, citation, and emphasis omitted). 

“[A]n imperfect instruction is not grounds for setting aside a conviction if the instruction fairly 

presented the issues to be tried and adequately protected the defendant’s rights.” Id. (quotation 

marks and citation omitted). Reversal is only warranted if, “after an examination of the entire 

cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of 

justice.” MCL 769.26. 

A conviction of involuntary manslaughter can be based on a defendant’s failure to perform 

a legal duty. See People v Holtschlag, 471 Mich 1, 16; 684 NW2d 730 (2004) (discussing how 

failure to perform a legal duty has been cited as one theory giving rise to involuntary 

manslaughter); People v Zak, 184 Mich App 1, 14; 457 NW2d 59 (1990) (“[I]nvoluntary 

manslaughter can be established on the basis of the failure to perform a legal duty . . . .”).1 “[A] 

duty of care may arise by way of statute, a contractual relationship, or the common law.” PowellMurphy v Revitalizing Auto Communities Environmental Response Trust, ___ Mich App ___, ___; 

___ NW2d ___ (2020) (Docket No. 348690); slip op at 3. Here, the prosecution’s theory of the 

case was that defendant failed to perform the legal duty she owed the victim as the owner of the 

home in which the victim lived. 

Defendant correctly argues that the trial court erroneously instructed the jury that defendant 

owed the victim the common-law duty owed to an invitee, when the correct common-law duty was 

that owed to a licensee. The distinction between a licensee and an invitee is generally governed 

by principles set forth in Stitt v Holland Abundant Life Fellowship, 462 Mich 591; 614 NW2d 88 

(2000). See Sanders v Perfecting Church, 303 Mich App 1, 4-5; 840 NW2d 401 (2013) (quoting 

Stitt for the definitions of licensee and invitee and the legal duties associated therewith). In Stitt, 

our Supreme Court stated that “a landowner’s duty to a visitor depends on that visitor’s status.” 

Stitt, 461 Mich at 596. A visitor may be a trespasser, a licensee, or an invitee.2 Id. As the Stitt

Court explained: 

A “licensee” is a person who is privileged to enter the land of another by 

virtue of the possessor’s consent. A landowner owes a licensee a duty only to warn 

the licensee of any hidden dangers the owner knows or has reason to know of, if 

the licensee does not know or have reason to know of the dangers involved. The 

landowner owes no duty of inspection or affirmative care to make the premises safe 

 

1

“Although not binding authority, decisions of this Court before November 1, 1990, may be 

persuasive.” People v Morrison, 328 Mich App 647, 651 n 1; 939 NW2d 728 (2019).

2 Licensee and invitee are the only categories at issue in this case.
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for the licensee’s visit. Typically, social guests are licensees who assume the 

ordinary risks associated with their visit . . . .

An “invitee” is a person who enters upon the land of another upon an 

invitation which carries with it an implied representation, assurance, or 

understanding that reasonable care has been used to prepare the premises, and make 

[it] safe for [the invitee’s] reception. The landowner has a duty of care, not only to 

warn the invitee of any known dangers, but the additional obligation to also make 

the premises safe, which requires the landowner to inspect the premises and, 

depending upon the circumstances, make any necessary repairs or warn of any 

discovered hazards. Thus, an invitee is entitled to the highest level of protection 

under premises liability law. [Id. at 596-597 (quotation marks and citations 

omitted) (alterations in original).] 

Significantly, “[i]n order to establish invitee status, a plaintiff must show that the premises were 

held open for a commercial purpose.” Id. at 605.

In this case, the evidence showed that defendant did not charge Jordan rent to live in her 

home. Defendant therefore did not hold open her home to the victim and her family for a 

“commercial purpose,” and, accordingly, they were not invitees. Id. Rather, the victim and her 

family were licensees because they were in defendant’s home “by virtue of [defendant’s] consent.” 

Id. at 596. Because the victim and her family were licensees, defendant did not have a commonlaw duty of “affirmative care to make the premises safe” for the victim. Id. The trial court 

therefore erroneously instructed the jury that defendant had a legal duty “to provide a safe 

environment” to the victim.

We conclude that where the duty instruction given to the jury was based on the commonlaw duty defendant owed the victim as a homeowner, the trial court’s instructions on involuntary 

manslaughter, taken as a whole, did not fairly present the issue for trial and protect defendant’s 

rights. Again, the prosecution charged defendant with involuntary manslaughter on the basis of

the theory that defendant failed to perform a legal duty that she owed to the victim. Thus, the 

jury’s understanding of the legal duty defendant owed the victim was therefore a central issue at 

trial. 

As stated supra, the trial court instructed the jury on involuntary manslaughter as follows:

The defendant Tonya Peterson is charged with Count 2, the crime of Involuntary 

Manslaughter resulting from failure to perform a legal duty. To prove this charge 

the prosecutor much [sic: must] prove each of the following elements beyond a 

reasonable doubt.

First, that the defendant had a legal duty to [the victim]. The legal duty 

charged here is to provide a safe environment as the homeowner and the babysitter 

of [the victim]. Second, the defendant knew of the facts that gave rise to the 

duty . . . .

Third, that the defendant willfully neglected or refused to perform that duty. 

And her failure to perform it was grossly negligent to human life. Forth [sic], that 
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the death of [the victim] was directly caused by the defendant’s failure to perform 

this duty. That is, that [the victim] died as a result of the defendant’s failure to 

provide a safe environment. 

Each of the other elements of involuntary manslaughter relied on the premise that defendant owed 

the victim a duty to “provide a safe environment.” Although the conditions within defendant’s 

home were undeniably dangerous, defendant did not owe the victim—a licensee—a common-law 

duty of affirmative care to make the home safe.

On the basis of the foregoing, we conclude that in this case, after a thorough examination 

of the entire record before us, to allow the trial court’s instructional error regarding the duty 

defendant owed to the victim to stand would result in a miscarriage of justice. Thus, reversal is 

warranted, and defendant is entitled to a new trial. 

Defendant also argues on appeal that the trial court erred by failing to instruct the jury on 

proximate causation and gross negligence, and that defense counsel was ineffective for failing to 

ask the trial court to change its instruction on duty, and failing to request instructions on proximate 

causation and gross negligence. However, having determined that the trial court’s failure to 

properly instruct the jury on the element of duty requires defendant receive a new trial, we need 

not address the remainder of defendant’s claims on appeal. 

We do briefly note, however, that we take judicial note of the fact that the victim’s mother, 

Jordan, pleaded guilty to second-degree child abuse, MCL 750.136b(3), and involuntary 

manslaughter, MCL 750.321c, in connection with her involvement in the incident resulting in 

victim’s death. As our Supreme Court explained in People v Feezel, 486 Mich 184, 195; 783 

NW2d 67 (2010), citing People v Schaefer, 473 Mich 418, 436-437; 703 NW2d 774 (2005), 

“[p]roximate causation ‘is a legal construct designed to prevent criminal liability from attaching 

when the result of the defendant’s conduct is viewed as too remote or unnatural.’ If the finder of 

fact determines that an intervening cause supersedes a defendant’s conduct ‘such that the casual 

link between the defendant’s conduct and the victim’s injury was broken,’ proximate cause is 

lacking and criminal liability cannot be imposed.” On remand for a new trial, the parties, and the 

trial court, may wish to evaluate whether any of defendant’s alleged criminal conduct was 

superseded by Jordan’s criminal conduct. 

We reverse, vacate defendant’s conviction and sentence, and remand for a new trial. We 

do not retain jurisdiction. 

/s/ Kathleen Jansen

/s/ Deborah A. Servitto

/s/ Michael J. Riordan