After hearing oral arguments on the application for leave to appeal, in lieu of granting the application the Michigan Supreme Court, in People v. Burks, No. 150857, vacated that part of the Court of Appeals opinion holding that second-degree child abuse under MCL 650.136B(3)(b) is a necessarily included lesser offense of first-degree child abuse for which jury instructions may be required. The Court of Appeals did not need to reach this issue because the defendant never requested instructions on second-degree child abuse in the trial court. The Court denied the defendant’s leave to appeal.
Defendant Burks was convicted of first-degree child abuse, MCL 750.136b(2), for the death of his six-month-old son. At trial, the defendant requested a jury instruction on second-degree child abuse, rather than first-degree child abuse alone. The trial court denied the request because the defendant admitted that he had intentionally struck the baby and therefore there was no evidence from which a jury could find that the baby’s death resulted from a reckless act. An intentional act is required for first-degree child abuse, while a reckless act will support a conviction for second-degree child abuse.
Defendant’s leave to appeal was denied.
