Concurrence

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION

March 23, 2023
Plaintiff-Appellee,
v No. 362210
Oakland Circuit Court
JAMES ROBERT CRUMBLEY, LC No. 2022-279989-FH
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 362211
Oakland Circuit Court
JENNIFER LYNN CRUMBLEY, LC No. 2022-279990-FH
Defendant-Appellant.
Before: MURRAY, P.J., and RIORDAN and YATES, JJ.
RIORDAN, J. (concurring).
I concur with JUDGE MURRAY’s opinion and join it in full, but write separately to explain
why I do so.
The difficult question in this case is whether the prosecution presented sufficient evidence
at the preliminary examination to establish probable cause with respect to proximate causation,
which is “a legal construct designed to prevent criminal liability from attaching when the result of
the defendant’s conduct is viewed as too remote or unnatural.” People v Schaefer, 473 Mich 418,
436; 703 NW2d 774 (2005). Proximate causation may be disputed when “the death is so remote
from the defendant’s conduct that it would be unjust to permit conviction. In such a case, the
question for the jury is whether the defendant’s conduct was the proximate or legal cause of the
decedent’s death.” People v Tims, 449 Mich 83, 95; 534 NW2d 675 (1995). This ordinarily is an
issue of reasonable foreseeability. See People v Head, 323 Mich App 526, 533; 917 NW2d 752
-1-
(2018).1 Ultimately, however, “[t]he decision to attach causal responsibility for social harm . . . is
made in a, hopefully, common sense manner, or by application of moral intuitions, a community
sense of justice, and/or public policy considerations.” Dressler, Understanding Criminal Law (3d
ed.), Section 14.03[A], p. 187.
In the typical case, of course, the parents of a child, who might be characterized as troubled,
cannot be held criminally liable for that child’s own crime. “Criminal guilt under our law is
personal fault. It is highly individualistic. It comes not from association, without more, be it with
family or friends.” People v Sobczak, 344 Mich 465, 470; 73 NW2d 921 (1955). See also People
v Gordon, 60 Mich App 412, 419; 231 NW2d 409 (1975) (“Under our system of criminal justice,
association with evil men [is] not sufficient to establish an inference of guilty participation.”).
Moreover, it long has been recognized that the failure of a parent to provide proper care for a child
generally “is not a crime.” See Pierce Co v Magnuson, 70 Wash 639, 644; 127 P 302 (1912). In
a nutshell, the law simply does not permit criminal liability for poor parenting or insensitivity when
confronted with a child’s emotional swings or mental-health issues such as depression. Nor does
the law permit criminal liability for parental irresponsibility with respect to a difficult, aggressive,
or angry child. The fact that a child with such issues also may have access to a potentially
dangerous instrumentality made available by his or her parents, such as a motor vehicle, a knife,
or even a gun, does not necessarily affect these principles. If we do not prohibit a troubled child
of driving age from operating a car provided by his or her parents, I discern no principled reason
why those parents should automatically be subject to criminal liability if the troubled child uses
the car to cause harm. So too with a gun, or any other commonly available instrumentality.
The difference between this case and the typical case in which a child commits a crime
with a potentially dangerous mechanism, however, is that EC was not merely a troubled child with
obvious mental-health problems. Instead, the morning of the shooting, EC drew a picture of a
body that appeared to have two bullet holes in the torso, apparently with blood streaming out of
them, which was near another drawing of a handgun that resembled the gun his parents, defendants
James Crumbley and Jennifer Crumbley, had very recently gifted to him. The body in the drawing
obviously could not have inflicted such wounds upon itself, so the logical inference is that the
body was shot by another. Thus, this drawing suggests that EC not only was potentially suicidal,
as school counselor Shawn Hopkins believed at the time, but also that he presented a danger to
others with his handgun.2 In other words, there was visual evidence, known by defendants, that
EC was contemplating the act of gunshot wounds being inflicted upon someone.
1
Much of our case law discussing proximate causation concerns whether an intervening cause of
harm constitutes a superseding cause that severs the causal link because it is not “reasonably
foreseeable.” See, e.g., Head, 323 Mich App at 533-535. Defendants frame this appeal in such
terms. As JUDGE MURRAY notes, however, it is arguable that this framework does not apply here
because the conduct of defendants and EC was so intertwined. See People v Rideout, 272 Mich
App 602, 609-610; 727 NW2d 630 (2006), rev’d in part on other grounds, 477 Mich 1062 (2007)
(comparing “responsive intervening cause” with “coincidental intervening cause”).
2
Some of the other drawings and statements on the math worksheet, such as the statement, “My
life is useless,” clearly reflected EC’s inner thoughts. It is reasonable to infer that the drawing of
the body similarly reflected EC’s inner thoughts.
-2-
In my view, this drawing, coupled with the other evidence aptly discussed by JUDGE
MURRAY in the majority opinion, establishes probable cause that EC’s conduct on the afternoon
of November 30, 2021, was reasonably foreseeable by defendants. Simply put, this discrete
evidence of considered harm to others distinguishes the situation here from the overwhelming
majority of cases in which parents may not, and should not, be criminally liable for a child’s crime.
In the absence of such discrete evidence as is before us, the outcome of the instant appeal easily
may have been different.
But the drawing itself is not sufficient to establish probable cause of proximate causation.
While a prosecutor has wide discretion in deciding whom to charge with a crime, see People v
Farmer, 193 Mich App 400, 402; 484 NW2d 407 (1992), I note that Hopkins conspicuously was
not charged by the prosecution in this case despite his encounters with EC on November 29 and
November 30, the day before and the day of the shooting, respectively. Although it is not the role
of the judiciary to review prosecutorial charging decisions absent rare circumstances that are not
present here, see People v Perry, 317 Mich App 589, 595; 895 NW2d 216 (2016), the preliminary
examination indicates that Hopkins only was aware that EC engaged in “shooting” as “a hobby.”
He did not know that defendants recently had purchased a handgun for EC. Thus, Hopkins did not
know that EC had immediate access to an unsecured handgun at home. It is reasonable that he
may have assumed the gun that EC used for his shooting hobby only was accessible by defendants.
As a result, while Hopkins perhaps could have inferred that EC contemplated harming others on
the basis of the drawing of the body,3 there is nothing to suggest that Hopkins also knew that EC
had the means to effectuate this conduct. This is quite in contrast to the knowledge defendants
possessed. In other words, the record suggests that it was far less foreseeable from the perspective
of Hopkins, as opposed to defendants, that EC would harm others that day.4
In the end, our decision today is consistent with principles of proximate causation and
individual responsibility in criminal law. Our legal system does not, nor should it, criminally
punish people for subpar, odd, or eccentric parenting, or require that children be deprived of any
instrumentality that otherwise is legal to possess and use. Moreover, I suspect that parents do not
reasonably assume, as a matter of course, that their children will commit violent crimes. However,
before us is the unusual case. EC was extraordinarily troubled, yet defendants nonetheless
provided him with a handgun and, despite having discrete, disturbing evidence that EC
contemplated harming others, did nothing when confronted with that evidence.
For these reasons, the prosecution established probable cause of proximate causation.
Therefore, I concur.
/s/ Michael J. Riordan
3
Before defendants arrived at the school that morning, EC personally assured Hopkins that he was
not a threat to himself or others.
4
The decision not to charge Hopkins, but charge defendants, can be justified by this distinction.
-3-

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What evidence was presented that indicated Ethan Crumbley contemplated harming others?

What distinction did Judge Riordan draw between the Crumbleys and Ethan Crumbley's counselor?

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION

PEOPLE OF THE STATE OF MICHIGAN,

Before: MURRAY, P.J., and RIORDAN and YATES, JJ.

/s/ Michael J. Riordan

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