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150857 - People v Yumar Antonio Burks

The People of the State of Michigan,
 
Nicole Matusko
 
Plaintiff-Appellee,
 
v
(Appeal from Ct of Appeals)
 
 
(Ingham – Canady, C.)
 
Yumar Antonio Burks,
 
Daniel J. Rust
 
Defendant-Appellant.
 

Summary

Defendant Yumar Antonio Burks was convicted by a jury of felony murder, MCL 750.316(1)(b), and first-degree child abuse, MCL 750.136b(2). The convictions stem from the death of his infant son, Antonio.  Burks raised several issues in the Court of Appeals, including a claim that the trial court should have instructed the jury on second-degree child abuse.  In a split, published opinion, the Court of Appeals agreed that the trial court erred.  It held that second-degree child abuse was a necessarily included lesser offense of first-degree child abuse, and that a rational view of the evidence would have supported the jury instruction.  The Court of Appeals ruled that the error was harmless, however, because Burks did not establish that it was more probable than not that the jury would have convicted him of second-degree child abuse rather than first-degree child abuse.  The Supreme Court will consider whether the trial court erred in refusing Burk’s request for a jury instruction on the offense of second-degree child abuse.