Jury instructions; Right to a properly instructed jury; Lesser included offense instruction; MCL 768.32(1); People v Smith; Instruction on the lesser included offense of second-degree child abuse; M Crim JI 17.20 (reckless act or omission); M Crim JI 17.20a (act likely to cause serious harm); State of mind; MCL 750.136b(2); Reckless act; MCL 750.136b(3)(a); “Reckless”; Harmless error; People v Cornell; Prosecutorial misconduct; Admission of the victim’s photo into evidence; Relevance; MRE 401; Unfair prejudice; MRE 403

The court held that (1) the trial court did not err by refusing to read the proposed reckless-act second-degree child abuse instruction to the jury, (2) the prosecutor’s statement about defendant’s dishonesty did not violate his right to a fair trial, and (3) the trial court did not abuse its discretion by admitting a pre-crime photo of the victim into evidence. He was convicted of felony murder and first-degree child abuse in the death of his girlfriend’s young child. On appeal, the court rejected his argument that the trial court violated his due-process rights by refusing to read his requested jury instruction for second-degree child abuse on the basis of a reckless-act theory. “Even if some of defendant’s acts could be defined as reckless, the fact [he] injured the victim multiple times strongly supported the trial court’s conclusion that [his] actions went beyond mere recklessness. In addition, the manner in which [he] demonstrated to police officers how he twice banged the victim’s head against the table also indicates intentional or knowing conduct.” Further, any error was harmless. The court also rejected defendant’s claim as to the prosecutor’s statement regarding his alleged dishonesty, noting that while it “was likely inappropriate, it did not violate” his right to a fair trial. Finally, the court rejected his contention that the trial court abused its discretion when it admitted a pre-crime photo of the victim into evidence. “Showing before and after pictures of the victim, relative to when the crime occurred, is relevant to establishing the severity of the victim’s injuries and defendant’s state of mind.” Even if he had established the photo “was unfairly prejudicial,” he failed to show “how the jury’s viewing of [it] would have rendered the verdict unreliable.” Affirmed.