People v. Nix

836 N.W.2d 224, 301 Mich. App. 195
CourtMichigan Court of Appeals
DecidedMay 23, 2013
DocketDocket No. 311102
StatusPublished
Cited by293 cases

This text of 836 N.W.2d 224 (People v. Nix) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Nix, 836 N.W.2d 224, 301 Mich. App. 195 (Mich. Ct. App. 2013).

Opinion

PER CURIAM.

A jury convicted defendant, Paul William Nix, of two counts of second-degree child abuse in violation of MCL 750.136b(3)(b), and one count of third-degree fleeing and eluding a police officer in violation of MCL 257.602a(3)(a). Defendant’s convictions stem from a high-speed chase with several deputies instigated by defendant’s flight. Defendant’s infant son and four-year-old stepson were in the vehicle at the time and were not restrained by either seatbelts or legally mandated child safety seats. See MCL 257.710d.

Defendant contends that the prosecution presented insufficient evidence that the high-speed chase was “likely to cause serious physical or mental harm to a child.” The prosecution successfully established that such harm could probably occur based on evidence regarding the nature of this incident. Defendant also argues that the trial court erroneously assigned 25 points for offense variable (OV) 13, MCL 777.43 (continuing pattern of criminal behavior), based on a felonious assault charge that was dismissed in an earlier criminal matter. MCL 777.43(2)(a), however, specifically permits a court to consider “all crimes within a 5-year period . . . regardless of whether the offense resulted in a conviction.” Finally, defendant challenges his trial counsel’s failure to address the fact that the circuit court did not conduct an arraignment on the information. The [198]*198record demonstrates that defendant waived his arraignment. Moreover, defendant had full notice of the charges against him and cannot establish the requisite prejudice to warrant relief. We affirm defendant’s convictions and sentences.

I. BACKGROUND

In the early morning hours of June 1, 2011, defendant, his wife, and their two children were sitting in a Chevy Blazer in a city park. A patrolling Grand Traverse County sheriffs deputy attempted to approach the vehicle because its license plate bore expired tags. Defendant drove away because he feared that there was an outstanding warrant for his arrest based on an armed altercation he had engaged in three days before.

Defendant raced through a maze of streets, taking many twists and turns, with several patrol cars joining the pursuit. During the 24-mile chase, defendant reached speeds of up to 100 miles an hour, crossed the centerline, and disregarded traffic signals and signs. Defendant veered to avoid “stop sticks” a deputy had placed in his path and drove off the roadway and into a private yard. Defendant attempted to “ram” a patrol car that attempted to “box in” the Blazer and nearly caused “a devastating accident.” Defendant led the deputies through two downtown areas and past civilian vehicles unlucky enough to be on the road.

Ultimately, defendant drove into Benzie County and to the Crystal Mountain Resort. Defendant drove his vehicle up a hill and crashed into the resort’s large “Alpine Slide.” Defendant escaped on foot and was not captured that night. Defendant’s wife and children also fled on foot but were discovered shortly thereafter. The deputies searched the vehicle and found no child safety [199]*199seats for the two small children. One week later, an Arkansas state trooper arrested defendant while he attempted to escape to Mexico with his wife and their children.

II. SUFFICIENCY OF THE EVIDENCE

Defendant contends that the prosecution presented insufficient evidence that his actions were likely to cause serious harm to his child passengers in support of the second-degree child abuse charges. When examining a challenge to the sufficiency of the evidence, we must review the evidence de novo in the light most favorable to the prosecution to determine whether a rational trier of fact could find that the prosecutor proved the elements of the charged offense beyond a reasonable doubt. People v Tombs, 472 Mich 446, 459; 697 NW2d 494 (2005).

Statutory interpretation questions are also generally reviewed de novo. People v Idziak, 484 Mich 549, 554; 773 NW2d 616 (2009). The goal of statutory interpretation is to discern the Legislature’s intent based on the statutory language. “If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written.” Rose Hill Ctr, Inc v Holly Twp, 224 Mich App 28, 32; 568 NW2d 332 (1997).

Defendant was convicted of second-degree child abuse under MCL 750.136b(3), which provides, in relevant part:

(3) A person is guilty of child abuse in the second degree if any of the following apply:
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[200]*200(b) The person knowingly or intentionally commits an act likely to cause serious physical or mental harm to a child regardless of whether harm results.[1]

A. INTERPRETATION OF THE SECOND-DEGREE CHILD ABUSE STATUTE

Defendant contends that his act of engaging in a high-speed chase with the police with his young children unrestrained in his vehicle was not “likely” to cause harm to the children as required to establish a violation of MCL 750.136b(3)(b).

There is no binding precedent defining the term “likely” in this statute. In Moll v Abbott Laboratories, 444 Mich 1, 22; 506 NW2d 816 (1993), the Supreme Court defined the word “likely” (as used in the phrase “likely cause” of an injury) by quoting Black’s Law Dictionary (6th ed), p 925 (citations omitted): “ ‘Probable. . . . Likely is a word of general usage and common understanding, broadly defined as of such nature or so circumstantial as to make something probable and having better chance of existing or occurring than not.’ ” Moll, 444 Mich at 22, compared the term “likely” to the term “possible” which “connotes a lesser standard of information needed to provide knowledge of causation.” Again quoting Black’s Law Dictionary, p 1166, the Moll Court defined the lower “possibility” standard as: “ ‘Capable of existing, happening, being, becoming or coming to pass; feasible, not contrary to nature of things; neither necessitated nor precluded; free to happen or not; contrasted with impossible.’ ”

[201]*201Moll’s interpretation is consistent with the definition of “likely” in various lay dictionaries. See MCL 8.3a (“All words and phrases shall be construed and understood according to the common and approved usage of the language . . . .”). Webster’s New Universal Unabridged Dictionary (Deluxe 2d ed), p 1048, defines “likely” as “probably” and “seeming as if it would happen or make happen; reasonably to be expected; apparently destined.” Random House Webster’s Unabridged Dictionary (2d ed), p 1114, similarly defines “likely” as “probably or apparently destined.” Random House Webster’s also includes an instructive usage note stating that one need not qualify the term “likely” with words such as “very” or “quite.” Id. The American Heritage Dictionary of the English Language (1969), p 757, defines “likely” as “[hjaving, expressing, or exhibiting an inclination or probability; apt” and “[p]rob-ably.”

Treating the terms “likely” and “probably” as synonymous is also consistent with precedent defining the term “likely” in relation to second-degree murder. In People v Goecke,

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Bluebook (online)
836 N.W.2d 224, 301 Mich. App. 195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-nix-michctapp-2013.