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People v. Schaub11/15/2002
FOR PUBLICATION
Defendant's appeal is before us by an order of the Supreme Court that, in lieu of granting leave to appeal, remanded the case to this Court for consideration as on leave granted. People v Schaub, 463 Mich 910; 620 NW2d 305 (2000). The issue presented on appeal is, in essence, whether the prosecution introduced sufficient evidence at the preliminary examination to require defendant to stand trial on the charge of child abandonment, MCL 750.135. After taking testimony at the preliminary examination, the district court dismissed the charge. The prosecution appealed to the circuit court and that court reversed the district court and reinstated the charge against defendant. On application for interlocutory leave to appeal, this Court denied the application. People v Schaub, unpublished order of the Court of Appeals, entered October 9, 2000 (Docket No. 229502). After consideration of the merits of the appeal, we agree with defendant and reverse the circuit court's ruling.
The charge against defendant of child abandonment stems from an allegation that defendant transferred possession of his ten-month-old daughter to an undercover police officer for financial gain. At the preliminary examination, the prosecution introduced testimony from defendant's daycare provider, who had contacted the police after defendant asked her if she knew anyone who wanted to buy his youngest child, and a police officer, who posed as a well-to- do real estate broker that desired to obtain a baby for his childless "son" and "daughter-in-law." These witnesses testified that defendant willingly agreed to sell his daughter for $60,000 without verifying the background of the prospective buyer and his "son" and "daughter-in-law" and to relinquish all his parental rights to the child.
After negotiating the terms and conditions for the "sale," defendant gave his daughter to a police officer posing as the buyer's son in exchange for $10,000 in cash and the promise to pay an additional $50,000 within two days. Defendant also reduced to writing the financial terms of the agreement. The undercover police officer "buyer" testified that the child was not without care, having been transferred directly from defendant's presence to the buyer's "son." In addition, defendant informed them of the child's food requirements and discussed feeding and other procedures.
After hearing the witnesses' testimony and the arguments of the parties, the district court dismissed the child abandonment charge against defendant. The district court found that the prosecution had not met its burden of proof to show evidence of the elements of child abandonment. Specifically, the district court found that the term "wholly abandoned" in the child abandonment statute indicated placing the child in a situation where there is no one to care for it and concluded that at no time was the child placed in a situation where she was without care.
The prosecution appealed as of right to the circuit court, and that court reversed the district court's dismissal of the child abandonment charge. The circuit court found that the district court erred in its interpretation of the child abandonment statute. According to the circuit court, "intent to wholly abandon" concerns only the defendant's conduct and the defendant's actions "must be analyzed without reference to the likelihood or unlikelihood that his child would befall harm at the hands of the prospective parents." The circuit court concluded that the prosecution presented sufficient evidence on that element to bind over defendant for trial. In addition, the circuit court found that the element of exposure was adequately shown by defendant's failure to protect his daugh
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