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148674 - People v Borom

The People of the State of Michigan,
 
Timothy A. Baughman
 
Plaintiff-Appellee,
 
v
(Appeal from Ct of Appeals)
 
 
(Wayne – Parker, L.)
 
Shawquanda Borom,
 
Valerie R. Newman
 
Defendant-Appellant.
 

Summary

​Defendant, 21-year-old Shawquanda Borom, lived with her mother, her sixteen-month-old son Davion, her brothers, and her 17-year-old boyfriend, Daniel McCullough. In early July 2011, Davion, who was in the care of her boyfriend, suffered a broken bone in his arm. Within a few weeks, Davion suffered third-degree burns on the back of his head and second-degree burns across his face. Two days later, Davion suffered massive head injuries, which resulted in his death. Numerous conflicting statements exist regarding how the injuries occurred, who was with Davion at the time, and whether Borom and McCullough hesitated before seeking help or completely failed to seek medical assistance for the child.

According to McCullough, the first incident occurred when Davion fell off the side of the stairs leading to the basement. McCullough told the police he was cleaning and doing laundry and was alone with the child when this incident occurred. Borom took the child to the hospital only when her mother told her that she had to take him, and drove them to the hospital. Borom initially told a Child Protective Services psychiatrist that she was home, but not in the basement; it was later that she revealed that McCullough was alone with Davion.

The second incident, a burn to Davion’s head, occurred two weeks later. McCullough told the police he was alone with Davion at the time of the injury. Several times Borom admitted she was present when Davion received the burns to his head and face. She told her mother that she had been bathing the child and when she left the room, Davion turned on the hot water faucet. Borom told the Child Protective Services worker that Davion burned himself on the bathtub hose after she left to grab a new diaper. She told the investigating Detroit police officer that she was the only one with the child when he received second- and third-degree burns to his head. Later, McCullough claimed that he was the only one with the child when he suffered the arm injury and burns. McCullough told police that he placed Davion in the bathtub and started to run water, then left the room to get a change of clothes for him. He heard Davion scream, and when he reached him, he saw that Davion had turned on the hot water and burned himself in the process. Because Davion had no burns on his hands or elsewhere, the medical examiner concluded that Davion was facing the floor with hot water applied to the back of his head. Borom never sought medical care for the burns on the day they happened. According to Borom, on advice from her mother, a health care worker, she treated Davion’s burns with salve and bandages supplied by her mother.

Borom and McCullough made several conflicting statements regarding the third, and fatal, incident of child abuse. During questioning, McCullough told police he was the sole caretaker for Davion. Borom testified at various times that nothing happened to cause the child’s massive head trauma. She also stated that she was with the child and he was following her up the porch steps when he fell. On another occasion, she testified that she was in the kitchen when she heard Davion cry outside, she ran to him, and McCullough told her the child had fallen down the porch steps, but that the child was easily comforted and was fine the rest of the evening. In addition, she also stated that she was not at home when Davion was injured.
 
Borom’s mother urged her daughter and McCullough to call 911 immediately. The couple had yet to call for help when, fifteen or twenty minutes later, the mother again urged them to call. Defendant did not tell the 911 operator about Davion’s injured humerus or burns from the bathtub water, nor did she tell the paramedic who arrived at the house that Davion had fallen. McCullough claimed he was not present at the time of the fatal injury. In a conflicting statement, McCullough told a detective that he was alone with Davion for all three incidents. During a videotaped reenactment, McCullough admitted to the Wayne County Medical Examiner that he was alone with Davion for all three incidents.

Borom was charged with felony-murder and two counts of first-degree child abuse.  To the extent that she was not directly responsible for Davion’s injuries, the prosecutor argued that she was nevertheless responsible, under an aiding and abetting theory, for allowing McCullough, who was not the child’s father, to have access to Davion knowing that the child had suffered serious injuries while in McCullough’s care. The district court presided over a preliminary examination held on April 26, May 1, and May 11, 2012, and bound Borom over to the Wayne County Circuit Court for trial.

In the circuit court, Borom filed a motion to quash the charges, arguing that the district court abused its discretion in binding her over for trial, because her alleged failure to act could not provide the basis for charges of first-degree child abuse.  Borom’s motion was denied on November 16, 2012. The defense counsel then filed an application for leave to appeal that decision. On January 31, 2013, the Court of Appeals denied defendant’s application for leave to appeal. Borom then appealed to the Supreme Court. On May 29, 2013, the Supreme Court ordered the case remanded to the Court of Appeals for consideration.

In an unpublished December 2013 opinion, the Court of Appeals affirmed the trial court’s ruling that the district court did not abuse its discretion in binding over defendant for trial.  In its opinion, the Court of Appeals held that a parent has a common law duty to prevent injury to his or her child, and that a parent who fails to act according to that legal duty can be guilty of aiding and abetting first-degree child abuse, even if that parent provided no other form of assistance to the person who abused their child. The Court of Appeals explained that, in order to prove that defendant aided and abetted first-degree child abuse, the prosecutor must show (1) that first-degree child abuse was committed by defendant or someone else; (2) that defendant “performed acts or gave encouragement that assisted the commission of first-degree child abuse”; and (3) that the defendant intended the commission of first-degree child abuse or had knowledge that the perpetrator intended the commission of first-degree child abuse.  “By leaving the child with the person, the defendant assists in the commission of the crime,” held the panel.  In light of the evidence in this case, the Court of Appeals concluded that the district court did not abuse its discretion in binding over defendant for trial, because there was probable cause to believe that defendant committed first-degree child abuse herself, or aided and abetted in the commission of first-degree child abuse.

Defendant appealed. In an order dated April 25, 2014, the Supreme Court directed the Clerk to schedule oral argument on the application.   The parties were directed to address “whether aiding and abetting under MCL 767.39 can be proven where the defendant failed to act according to a legal duty, but provided no other form of assistance to the perpetrator of the crime.”