Opinion
No. 348631
08-20-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee v. MICHAEL JOSEPH KERNAHAN, Defendant-Appellant
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 18-005975-01-FH Before: GLEICHER, P.J., and STEPHENS and CAMERON, JJ. PER CURIAM.
Following a bench trial, the trial court convicted defendant Michael Kernahan of assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84, and aggravated domestic assault, MCL 750.81a(2). Defendant challenges the sufficiency of the evidence supporting his AWIGBH conviction, and raises hearsay and Confrontation Clause challenges to the admission of the absent victim's out-of-court statements. We affirm.
I. BACKGROUND
Defendant's convictions arise from the assault of his mother on July 17, 2018. Defendant lived with his mother, Theresa Kernahan, in her home. On the day in question, defendant and Theresa argued about their pets. During this argument, defendant pushed Theresa down the stairs into the basement.
Theresa did not appear for defendant's trial. Evidence of the assault was introduced through the testimony of her neighbors, the Dalfonsis. Cynthia Dalfonsi testified that she looked out her window because her dog was barking and saw Theresa walking down the steps of the Dalfonsis' front porch. Cynthia went outside and observed that Theresa "seemed distraught," "she was physically shaking" and "she was just kind of like cowering and kind of walking away." David Dalfonsi returned home at that time and also observed that Theresa "looked a little distressed, a little confused, nervous" and "was shaking like something . . . happened." Theresa told the Dalfonsis that defendant "grabb[ed] her by the hair" and "pulled her back into the house" where "he pushed her down the stairs." Moreover, while Theresa waited for the Dalfonsis to come out of their house, Theresa observed defendant leave the home and walk away carrying a bow and arrow. Theresa expressed fear that defendant would use the weapon against her. Theresa also stated that "[s]he was afraid of" her son and "that something similar to this had happened before."
Ultimately, Cynthia took Theresa for medical treatment. Doctors initially thought Theresa's left shoulder was dislocated, but an x-ray revealed a lesser injury that still required a sling. Theresa also had "gashes" and bruises on her arms and legs.
Theresa requested a police escort into her home so she could retrieve her purse and cell phone. Officers arrested defendant on the scene. Defendant made unprompted statements on the way to the police station and repeated those statements the next morning after waiving his Miranda rights. During his custodial interview, defendant was angry and hostile, and the officer was required to instruct defendant to stop yelling at her. Defendant claimed that Theresa had abused him for 25 years and therefore he could not be blamed or held responsible for domestic violence. Defendant further asserted that Theresa adopted him when he was young, that he was a Canadian citizen, and that he would return to Canada and never come back if he was released on bond. Defendant blamed Theresa for everything that had gone wrong in his life and claimed that Theresa had "ruined every opportunity that he's had to make something of himself."
In relation to the evening in question, defendant admitted that he and his mother were arguing about their pets, including Theresa's alleged refusal to clean the cat litter box. Defendant described that the argument moved to the top of the stairs because the litter box was in the basement. Defendant denied touching his mother and claimed that Theresa "all of a sudden . . . just fell down the stairs." Defendant "couldn't understand how [Theresa] could have been injured because she" cleaned the litter box after her fall. And defendant admitted to leaving the house with a crossbow and an arrow, but claimed he took the weapon only so Theresa would not find it.
II. THERESA'S STATEMENTS
Defendant contends that the court violated his constitutional right to confront the witnesses against him by allowing the Dalfonsis to testify regarding Theresa's statements in her absence at trial. Defendant also contends that this testimony amounted to improperly admitted hearsay evidence. Defendant raised these challenges below, but the trial court ultimately admitted the Dalfonsis' testimonies in this regard. The court found the Confrontation Clause inapplicable because the statements were made to Theresa's neighbors, rather than law enforcement, and therefore were not testimonial in nature. And the court found that Theresa's statements to the Dalfonsis qualified as "excited utterances," which were excepted from the hearsay exclusion. We review for an abuse of discretion the trial court's evidentiary rulings, People v Thorpe, 504 Mich 230, 251; 934 NW2d 693 (2019)., and review the constitutional question de novo. People v Shafier, 483 Mich 205, 211; 768 NW2d 305 (2009).
As noted, Theresa did not appear on the first day of defendant's trial. An officer had personally served a subpoena on Theresa and verbally explained the date and time of the trial. The day before the trial, Theresa told the Dalfonsis that she would not attend, and the Dalfonsis advised the prosecutor. The officer in charge of the investigation telephoned Theresa twice on the morning of the second day of trial and stopped by Theresa's home on the way to court. However, Theresa did not answer her phone or the door and the officer could not secure her presence.
The Confrontation Clause states that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." US Const, Am VI. The Michigan Constitution also "afford[s] a criminal defendant the right to be confronted with the witnesses against him, [and] adopt[s] th[e] language of the federal Confrontation Clause verbatim . . . ." People v Nunley, 491 Mich 686, 697; 821 NW2d 642 (2012) (quotation marks and citation omitted). To protect the defendant's rights, "the Confrontation Clause bars out-of-court statements that are testimonial in nature unless the declarant is unavailable to testify but the defendant had a prior opportunity to cross-examine the declarant." People v Spangler, 285 Mich App 136, 142; 774 NW2d 702 (2009). The Confrontation Clause does not, however, bar out-of-court statements that are nontestimonial in nature. People v Taylor, 482 Mich 368, 374; 759 NW2d 361 (2008). "While nontestimonial statements are subject to traditional rules limiting the admissibility of hearsay, they do not implicate the Confrontation Clause." Id. at 377.
The trial court correctly determined that the Confrontation Clause did not limit the admission of Theresa's statements to the Dalfonsis because those statements were not testimonial in nature. "Statements are testimonial if the 'primary purpose' of the statements or the questioning that elicits them 'is to establish or prove past events potentially relevant to later criminal prosecution.' " People v Garland, 286 Mich App 1, 10; 777 NW2d 732 (2009), quoting Davis v Washington, 547 US 813, 822; 126 S Ct 2266; 165 L Ed 2d 224 (2006). Theresa did not tell the Dalfonsis about the assault and her fear of her son in an effort to prove that the events actually occurred or in preparation of criminal prosecution. Rather, Theresa was seeking safe haven after being assaulted by her son in the home they shared. Theresa sought advice on whether to obtain medical care and then a ride to urgent care. Statements like these need not be excluded on constitutional grounds.
Nor did these statements qualify as inadmissible hearsay. The rules of evidence exclude the admission of a declarant's out-of-court statements to prove the truth of the matters asserted absent an exception. MRE 801(c); MRE 802. "A statement relating to a startling event or condition made while the declarant was under the stress of excitement by the event or condition" is admissible as an "excited utterance," even if the declarant is available to testify. MRE 803(2). "A statement is admissible under this exception if (1) there was a startling event and (2) the resulting statement was made while the declarant was under the excitement caused by that event." People v Layher, 238 Mich App 573, 582; 607 NW2d 91 (1999). Before admitting a statement as an excited utterance, the court must determine that other evidence supports the existence of the startling event; the statements themselves cannot be the only proof that the events occurred. People v Barrett, 480 Mich 125, 133-134; 747 NW2d 797 (2008). "While the time that passes between the event and the statement is important in determining whether the declarant was still under the stress of the excitement when the statement was made, the focus of the exception is on the declarant's lack of capacity to fabricate, not the lack of time to fabricate." Layher, 238 Mich App at 583 (quotation marks and citation omitted).
Here, there was evidence beyond Theresa's statements that she fell down the stairs and that defendant pushed her. Theresa suffered injuries to her shoulder, arm, and leg. Defendant admitted that Theresa fell down the stairs. Although defendant denied pushing Theresa, he also expressed incredulity that he could be held responsible "for what he did," implicitly admitting his role in Theresa's fall.
Moreover, Theresa was still under the stress of excitement when she made her statements to the Dalfonsis. Theresa asserted that the assault had occurred less than hour earlier. The Dalfonsis described Theresa as fearful; Theresa was physically shaking, cowering, pale, and distraught. On this record, the trial court did not abuse its discretion in admitting this evidence under the hearsay exception. Accordingly, defendant is not entitled to relief.
III. SUFFICIENCY OF THE EVIDENCE
Defendant further contends that the prosecutor presented insufficient evidence to support his AWIGBH conviction. Defendant complains that "[t]he only evidence that was presented came from the neighbors, who repeated hearsay statements made by the complaining witness." As noted, however, Theresa's out-of-court statements to the Dalfonsis were properly admitted into evidence. Defendant then argues that there was insufficient evidence that he had the specific intent to do great bodily harm. In this regard, defendant asserts that Theresa's injuries were rather minor considering the allegations she raised, calling into question the credibility of Theresa's tale.
We review de novo a defendant's challenge to the sufficiency of the evidence, "view[ing] the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the crime to have been proved beyond a reasonable doubt." People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). In making this assessment, we do "not interfere with the factfinder's role of determining the weight of the evidence and the credibility of witnesses." People v Kosik, 303 Mich App 146, 150; 841 NW2d 906 (2013). "It is for the trier of fact, rather than this Court, to determine what inferences can be fairly drawn from the evidence and to determine the weight to be afforded to the inferences." Id. at 150-151. "Circumstantial evidence and reasonable inferences arising therefrom may constitute proof of the elements of the crime." People v Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010).
"AWIGBH is a specific intent crime." People v Stevens, 306 Mich App 620, 628; 858 NW2d 98 (2014). "The intent to do great bodily harm less than murder is an intent to do serious injury of an aggravated nature." Id. (quotation marks and citation omitted). "[O]nly minimal circumstantial evidence is necessary to show a defendant entertained the requisite intent." People v Harverson, 291 Mich App 171, 178; 804 NW2d 757 (2010). "Intent to cause serious harm can be inferred from the defendant's actions . . . ." Stevens, 306 Mich App at 629. "Although actual injury to the victim is not an element of the crime, injuries suffered by the victim may also be indicative of a defendant's intent." Id. (citations omitted).
The prosecutor presented evidence that defendant was angry with his mother, pushed her down the stairs into the basement, and felt justified in his actions. Officers arrested defendant approximately six hours after the assault. The officers testified that defendant attempted to flee and resisted being taken into custody. See People v Unger, 278 Mich App 210, 226; 749 NW2d 272 (2008) ("[E]vidence of flight is admissible to support an inference of consciousness of guilt . . . .") (quotation marks and citation omitted). In the patrol car, defendant angrily asserted that he could not be held responsible for his actions. The officer in charge of the investigation testified that even the following morning, defendant was angry with and hostile toward his mother. She described defendant's intense anger as he told the officer about the argument over the cat litter box. It could be reasonably inferred from defendant's intense anger that he bore an intent to severely injure Theresa when he pushed her down the stairs.
Theresa's description of the incident also supported that defendant bore the specific intent to cause a serious injury of an aggravated nature. Theresa told the Dalfonsis that as she tried to leave the house, defendant grabbed her by the hair, pulled her back inside, and pushed her down the stairs into the basement. This evidence supported that defendant acted purposefully with an intent to cause his mother serious harm.
Evidence of defendant's intent to do great bodily harm is not negated simply because Theresa suffered rather minor injuries. As described by this Court in People v Dillard, 303 Mich App 372, 378; 845 NW2d 518 (2013), abrogated in part on other grounds People v Barrera, 500 Mich 14; 892 NW2d 789 (2017).:
Notably, the "assault" element of [AWIGBH] need only fit the traditional definition of an assault, which "is usually defined as an attempt or offer with force and violence to do a corporal hurt to another." People v Smith, 217 Mich 669, 673; 187 NW 304 (1922). Consequently, it is not necessary for any actual injury to occur. Furthermore, any injury that a defendant does inflict is not necessarily proof of any intent beyond that necessary to inflict the particular injury. Id. at 674. However, the extent of any injury and the presumption that one intends the natural consequences of one's acts are both proper considerations for the jury. People v Resh, 107 Mich 251, 253-254; 65 NW 99 (1895). Indeed, the injury actually inflicted need not be an injury specifically intended, but it can nevertheless be strongly probative of the intent to cause the requisite quantum of harm. See People v Miller, 91 Mich 639, 642-645; 52 NW 65 (1892).The manner in which defendant pushed his mother down the stairs supports that he either intended to cause great bodily harm or intended the natural consequences of his actions. That she did not suffer broken bones, head injuries, or death does not mean that the act did not occur. Rather, the nature of Theresa's injuries was but one factor for the court to consider in assessing and weighing the evidence.
We affirm.
/s/ Elizabeth L. Gleicher
/s/ Cynthia Diane Stephens
/s/ Thomas C. Cameron
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).