Court LC No. 14-010339-FH
Before: Beckering, P.J., and Markey and Shapiro, JJ.
Anita Diane Lawhorn, was convicted by a jury of third-degree
child abuse, MCL 750.136b(5). Defendant was sentenced to 365
days in jail with credit for 36 days served and 60
months' probation. The trial court ordered defendant to
serve 150 days of her jail sentence immediately with the
remainder to be served at the end of probation or upon court
order, whichever occurs first. Defendant now appeals by
argues that her conviction should be vacated because the
third-degree child abuse statute, MCL 750.136b(5), is
unconstitutionally vague as it does not provide fair notice
of the prohibited conduct and because it is so indefinite
that it gives unstructured and unlimited discretion to the
trier of fact to arbitrarily determine whether an offense was
committed. We disagree and so affirm.
750.136b defines the crime of third-degree child abuse as
(5) A person is guilty of child abuse in the third degree if
any of the following apply:
(a) The person knowingly or intentionally causes physical
harm to a child.
(b) The person knowingly or intentionally commits an act that
under the circumstances poses an unreasonable risk of harm or
injury to a child, and the act results in physical harm to a
(6) Child abuse in the third degree is a felony punishable by
imprisonment for not more than 2 years.
'Child' means a person who is less than 18 years of
age and is not emancipated by operation of law . . . ."
MCL 750.136b(1)(a). " 'Person' means a
child's parent or guardian or any other person who cares
for, has custody of, or has authority over a child regardless
of the length of time that a child is cared for, in the
custody of, or subject to the authority of that person."
MCL 750.136b(1)(d). For purposes of MCL 750.136b, the term
"physical harm" is defined as "any injury to a
child's physical condition." MCL 750.136b(1)(e). In
addition, MCL 750.136b(9) provides that "[t]his section
does not prohibit a parent or guardian, or other person
permitted by law or authorized by the parent or guardian,
from taking steps to reasonably discipline a child, including
the use of reasonable force."
statute is presumed to be constitutional and is so construed
unless its unconstitutionality is clearly apparent."
People v Boomer, 250 Mich.App. 534, 538; 655 N.W.2d
255 (2002). "To determine whether a statute is
unconstitutionally vague, this Court examines the entire text
of the statute and gives the words of the statute their
ordinary meanings." People v Lockett, 295
Mich.App. 165, 174; 814 N.W.2d 295 (2012). A court must also
consider any judicial constructions of the statute when
determining if it is unconstitutionally vague.
Boomer, 250 Mich.App. at 539.
void for vagueness doctrine is derived from the
constitutional guarantee that the state may not deprive a
person of life, liberty, or property, without due process of
law. U.S. Const, Am XIV; Const 1963, art 1, § 17."
People v Roberts, 292 Mich.App. 492, 497; 808 N.W.2d
290 (2011) (quotation marks and citation omitted). As
explained by the United States Supreme Court in Grayned v
City of Rockford, 408 U.S. 104, 108-109; 92 S.Ct. 2294,
33 L.Ed.2d 222 (1972):
It is a basic principle of due process that an enactment is
void for vagueness if its prohibitions are not clearly
defined. Vague laws offend several important values. First,
because we assume that man is free to steer between lawful
and unlawful conduct, we insist that laws give the person of
ordinary intelligence a reasonable opportunity to know what
is prohibited, so that he may act accordingly. Vague laws may
trap the innocent by not providing fair warning. Second, if
arbitrary and discriminatory enforcement is to be prevented,
laws must provide explicit standards for those who apply
them. A vague law impermissibly delegates basic policy
matters to policemen, judges, and juries for resolution on an
ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application. Third, but related,
where a vague statute "abut[s] upon sensitive areas of
basic First Amendment freedoms, " it "operates to
inhibit the exercise of [those] freedoms." Uncertain