James Crumbley Appeal

STATE OF MICHGIAN
IN THE COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v COA Docket No.:

Lower Court No.: 2022-279989-FH
JAMES ROBERT CRUMBLEY,
Defendant-Appellant.
KAREN D. McDONALD (P59083) MARIELL R. LEHMAN (P74760)

Prosecuting Attorney Attorney for Defendant-Appellant
Attorney for Plaintiff-Appellee Lehman Law Firm, PLLC
Oakland County Prosecutor’s Office 8113 Wilson Street
1200 N. Telegraph Road Shelby Township, MI 48316
Pontiac, MI 48341 (586) 291-3414
(248) 858-0656
______________________________________________________________________________
DEFENDANT-APPELLANT’S INTERLOCUTORY APPLICATION FOR LEAVE TO

APPEAL
RECEIVED by MCOA 7/18/2022 8:14:07 PM

*** A Motion for Immediate Consideration has been filed with this Interlocutory
Application for Leave to Appeal ***
*** ORAL ARGUMENT REQUESTED ***
MARIELL R. LEHMAN (P74760)

Attorney for Defendant-Appellant
Lehman Law Firm, PLLC
8113 Wilson Street
Shelby Township, MI 48316
(586) 291-3414
Dated July 18, 2022

TABLE OF CONTENTS
INDEX OF AUTHORITIES ....................................................................................................... ii

STATEMENT OF JURISDICTON ............................................................................................iv
STATEMENT OF QUESTIONS PRESENTED ........................................................................ v
I. Whether The Trial Court Erred When It Denied Defendants’ Motion To Quash,
Holding That People V Marshall, 362 Mich 170; 106 NW2d 842 (1961) Does Not Preclude
The State’s Ability To Prosecute Mr. And Mrs. Crumbley, That The Premeditated Murders
Committed By EC Did Not Disrupt The Causal Link Between Defendants And The Murders,
And That The Involuntary Manslaughter Statue, As Applied To Defendants, Is
Unconstitutionally Vague?........................................................................................................... v
II. Whether The Trial Court Erred When It Determined Certain Statements Made By EC
In His Journal And Texts Messages Admissible Pursuant To Exceptions To The General
Prohibition Again Hearsay, Determined That The Statements Are Relevant, Determined
That The Statements Are More Probative Than Prejudicial, And Determined That The
Statements Do Not Violate The Confrontation Clause? .............................................................. v
STATEMENT OF FACTS AND PROCEEDINGS ................................................................... 1
I. The Trial Court Erred When It Denied Defendants’ Motion To Quash Due To The Fact
People V Marshall, 362 Mich 170; 106 Nw2d 842 (1961), Forecloses The State’s Ability To
Prosecute Mr. And Mrs. Crumbley For Involuntary Manslaughter, The State Cannot
Demonstrate Causation, And The Involuntary Manslaughter Statute Is Unconstitutionally
Vague As Applied To Defendants. .............................................................................................. 6
Issue Preservation / Standard of Review ................................................................................. 6
Law and Argument .................................................................................................................. 6
II. The Trial Court Erred When It Deemed Admissible Various Text Messages And

Journal Entries Authored By Ec Because They Do Not Satisfy Any Exception To The
Prohibition Of Hearsay, The Statements Are Not Relevant, The Statements Are Not
Admissible Pursuant To Mre 403, And The Statements, If Admitted, Violate The
Confrontation Clause Of The United States And Michigan Constitutions. ............................... 16
Issue Preservations / Standard of Review: ............................................................................ 16
Law and Argument: ............................................................................................................... 17
CONCLUSION AND RELIEF REQUESTED ......................................................................... 32
INDEX OF AUTHORITIES
Cases
1373 Moulin, LLC v Wolf, ___ Mich App ___, issued May 26, 2022 (Docket No. 360569) ....... 20
Apanovitch v Houk, 466 F3d 460 (CA6, 2006) ............................................................................. 24
Burger v. Ford Motor Co., unpublished per curium opinion of the Court of the Appeals, issued
Jan. 14, 2014 (Docket No. 307312) ........................................................................................... 21
City of Chicago v Morales, 527 US 41 (1999) .............................................................................. 15
Crawford v Washington, 541 US 36; 124 S Ct 1354 (2004) ................................................... 31, 32
Davis v Alaska, 415 US 308; 94 S Ct 1105; 39 L Ed 2d 347 (1974) ............................................ 32
Hill v Colorado, 530 US 703 (2000) ............................................................................................. 15
Idaho v Wright, 497 US 823; 110 SCt 3139 (1990) ...................................................................... 30
Kloian v Schwartz, 272 Mich App 232; 725 NW2d 671 (2006) ..................................................... 6
Kolender v Lawson, 461 US 352 (1983) ....................................................................................... 15
Lee v Illinois, 476 US 530; 106 S Ct 2056; 90 L Ed 2d 514 (1986) ............................................. 32
Michigan v Lucas, 500 US 45; 111 S Ct 1743; 114 L Ed 2d 205 (1991)...................................... 32
Moskal v United States, 498 US 103 (1990) ................................................................................. 16
Navarette v California, 572 US 393 (2014) .................................................................................. 19
People v Austin, 185 Mich App 334; 460 NW2d 607 (1990) ....................................................... 14
People v Babcock, 469 Mich 247; 666 NW2d 231 (2003).............................................................. 6
People v Barnes, 182 Mich 179; 148 NW 400 (1914) .................................................................. 12
People v Campbell, 237 Mich 424; 212 NW 97 (1927) ................................................................ 12
People v Chelmicki, 305 Mich App 58; 850 NW2d 612 (2014) ................................................... 22
People v Crawford, 458 Mich 376; 582 NW2d 785, 790–91 (1998) ............................................ 33
People v Daniels, 172 Mich App 374; 431 NW2d 846 (1988) ....................................................... 7
People v Deneweth, 14 Mich App 604; 165 NW2d 910 (1968) ................................................... 17
People v Derror, 475 Mich 316; 715 NW2d 822 (2006) .............................................................. 11

People v Dowdy, 489 Mich 373; 802 NW2d 239 (2011) ................................................................ 6
People v Duncan, 494 Mich 713; 835 NW2d 399 (2013) ............................................................... 6
People v Feezel, 486 Mich 184; 783 NW2d 67 (2010) ........................................................... 11, 25
People v Fisher, 449 Mich 441; 537 NW2d 577 (1995) (Fisher II) ............................................. 27
People v Head, 323 Mich App 526; 917 NW2d 752 (2018) ..................................................... 3, 13
People v Hendrickson, 459 Mich 229; 586 NW2d 906 (1998) ......................................... 19, 22, 23
People v Hudson, 241 Mich App 268; 615 NW2d 784 (2000) ..................................................... 14
People v Katz, 468 Mich 272; 662 NW2d 12 (2003) .................................................................... 29
People v Marshall, 362 Mich 170; 106 NW2d 842 (1961) ............................................... 4, 7, 8, 16
People v McKinney, 410 Mich 413; 301 NW2d 824 (1981) ......................................................... 31
People v Moorer, 262 Mich App 64; 683 NW2d 736 (2004) ................................................. 23, 25
People v Pittinger, 105 Mich App 736; 307 NW2d 715 (1981) ............................................. 10, 11
People v Pitts, 84 Mich App 656; 270 NW2d 482 (1978) .............................................................. 9
People v Redden, 290 Mich App 65; 799 NW2d 184 (2010) ......................................................... 3
People v Reed, 393 Mich 342; 224 NW2d 867 (1975) ................................................................. 32
People v Retelle, 173 Mich App 196; 433 NW2d 401 (1988) ...................................................... 10
People v Ryczek, 224 Mich 106 (1923) ........................................................................................... 7
People v Schaefer 473 Mich 418 (2005) ........................................................................... 11, 12, 13
People v Scott, 29 Mich App 549; 185 NW2d 576 (1971) ....................................................... 7, 10
People v Selwa, 214 Mich App 451; 543 NW2d 321 (1995) ........................................................ 14
People v Smelley, 285 Mich App 314; 775 NW2d 350 (2009) ..................................................... 27
People v Sobczak, 344 Mich 465; 73 NW2d 921 (1955) ................................................................ 7
People v Stone, 463 Mich 558; 621 NW2d 702 (2001) .................................................................. 6
People v Turner, 125 Mich App 8; 336 NW2d 217 (1983) ............................................................ 9
People v Waltonen, 272 Mich App 678; 728 NW2d 881 (2006) .................................................... 6
People v Yost, 278 Mich App 341; 749 NW2d 753 (2008)........................................................... 24
People v Zak, 184 Mich App 1; 457 NW2d 59 (1990) ................................................................. 13
People v. Lukity, 460 Mich. 484; 596 N.W.2d 607 (1999) ........................................................... 18
People v. Starr, 457 Mich. 490; 577 N.W.2d 673 (1998) ............................................................. 18
Skilling v United States, 561 US 358 (2010) ................................................................................. 15
Solomon v Shuell, 435 Mich 104; 457 NW2d 669 (1990) ............................................................ 31
Williamson v United States, 512 US 594; 114 SCt 2431 (1994) ................................................... 25
Statutes
MCL 767.39 .................................................................................................................................. 10
Other Authorities
43 Harvard Law Review 689, 716 (1930) ....................................................................................... 7
Federal Rules of Evidence Manual (Matthew Bender Co., Inc, 2002), § 807.02(4)(3) ................ 28
M Crim JI 16.10 ............................................................................................................................ 10
M Crim JI 16.13 ............................................................................................................................ 10
Rules
FRE 803(1) .................................................................................................................................... 18
MRE 401 ................................................................................................................................... 5, 22
MRE 402 ................................................................................................................................... 5, 22
MRE 403 ................................................................................................................................... 5, 31
MRE 801(c) ................................................................................................................................... 17

MRE 802 ....................................................................................................................................... 17
MRE 803(1) ................................................................................................................. 18, 19, 20, 21
MRE 803(24) ................................................................................................................................. 27
MRE 803(3) ............................................................................................................................passim
STATEMENT OF JURISDICTON
The Honorable Cheryl A. Matthews issued an opinion and order denying Defendants’
Motion to Quash on June 22, 2022. (Order, attached as Appendix A). With respect to Defendants’
Motion to Quash, this Interlocutory Appeal is being filed pursuant to MCR 7.205(A)(4), within
six months of the entry of the judgment by the trial court. The reason for delay in filing Defendants’
Interlocutory Appeal is that the trial court denied various other pre-trial motions on June 27, 2022,
and Defendants simultaneously appeal an additional ruling by the trial court. Thus, for purposes
of judicial economy, Defendants now file both Interlocutory Appeals together, in this single
pleading.
The Honorable Cheryl A. Matthews issued an order denying in part and granting in part
Defendants’ Motion in Limine to Exclude Evidence that Would Violate Hearsay and
Confrontation Rules. (Order attached as Appendix B and Motion Hearing Transcript, in relevant
part, attached as Appendix C). This Interlocutory Appeal, as it pertains the Defendants’ Motion in
Limine, is being filed pursuant to MCR 7.205(A)(1), within 21 days of the trial court order.

This Court has jurisdiction pursuant to Mich Const 1963, art 1, § 20 (as amended at the
November 1994 general election) and as implemented by MCL 600.308(2)(c); MCL 770.3; MCR
7.203(B)(1); MCR 7.205(A)(1); and MCR 7.205(A)(4).

STATEMENT OF QUESTIONS PRESENTED
I. Whether the trial court erred when it denied Defendants’ Motion to Quash, holding that
People v Marshall, 362 Mich 170; 106 NW2d 842 (1961) does not preclude the State’s ability to
prosecute Mr. and Mrs. Crumbley, that the premeditated murders committed by EC did not disrupt
the causal link between Defendants and the murders, and that the involuntary manslaughter statue,
as applied to Defendants, is unconstitutionally vague?
Defendants Answer: Yes.
The People Answer: No.
The Trial Court Answers: No.
II. Whether the trial court erred when it determined certain statements made by EC in his
journal and texts messages admissible pursuant to exceptions to the general prohibition again
hearsay, determined that the statements are relevant, determined that the statements are more
probative than prejudicial, and determined that the statements do not violate the Confrontation
Clause?
Defendants Answer: Yes.
The People Answer: No.
The Trial Court Answers: No.

STATEMENT OF FACTS AND PROCEEDINGS
On Tuesday, November 30, 2021, fifteen-year-old EC perpetrated a mass shooting at
Oxford High School, located in Oxford Township, Michigan. At approximately 12:51 p.m., EC
emerged from a bathroom and began firing into a hallway. On that fateful day, EC killed four of
his classmates and injured seven others, including one teacher. On December 1, 2021, Oakland
County Prosecuting Attorney Karen McDonald (hereinafter Prosecutor McDonald) announced
that her office was charging EC, as an adult, with one count of terrorism causing death, four counts
of first-degree murder, seven counts assault with intent to murder, and twelve counts of use of a
firearm during the commission of a dangerous felony.1 (12/1/21 press conference at 3:45).
Not surprisingly, the horrific events of November 30, 2021 sparked national outrage and
generated state-wide calls to strengthen gun safety legislation.2 During her initial press conference,
Prosecutor McDonald acknowledged that “we have watched school shootings unfold in
communities across this country for far too long,” and that “to prevent further tragedies like the
one we witnessed yesterday, and at large, we have got to address responsible gun ownership in

this country and in Oakland County.” (12/1/21 press conference at 1:15, 6:22). Prosecutor
McDonald made it clear that she would “speak out and say that we need better gun laws.” (Id. at
11:15). She continued by stating that because “we really can’t train ourselves out of this tragedy[,]”
1
Oakland County Prosecuting Attorney Karen McDonald’s press conference, Dec. 1, 2021,
available at: https://www.clickondetroit.com/news/local/2021/12/01/live-stream-oakland-county-
prosecutors-office-announces-charges-in-oxford-high-school-shooting/, hereinafter 12/1/21 press
conference.
2
See Krause, Sheldon. “House Democrats discuss gun safety legislation in wake of Oxford
hooting.” State News, Jan. 11, 2022, available at https://statenews.com/article/2022/01/house-
democrats-discuss-gun-safety-legislation-in-wake-of-oxford-shooting?ct=content_open &c=cbox
_latest;
1
“we have to address the fact that people should be held accountable who own guns and are not
responsible.” (Id. at 12:40).
Two days later, EC’s parents, James and Jennifer Crumbley were charged with four counts
of involuntary manslaughter.3 (12/3/21 press conference at 2:02). In announcing the charges,
Prosecutor McDonald stated that “[w]hile the shooter was the one who entered the high school and
pulled the trigger, there [were] other individuals who contributed to the events on November 30th,
and it’s my intention to hold them accountable as well.” (Id. at 1:30). She continued, “[i]t’s
imperative we prevent this from happening again.” (Id.). Thus, the charges, in part, were meant to
“send a message that gun owners have a responsibility.” (Id. at 7:48).
On February 8, 2022, and February 24, 2022, a preliminary examination in the matter was
held, and in part, the prosecution sought to demonstrate:
• That in the days leading up to EC committing the murders, Mr. Crumbley purchased
the firearm EC used to kill the victims;
• That Mr. and Mrs. Crumbley failed to properly secure the firearm that EC used to
commit the murders and knew that EC had access to the firearm;

• That Mr. and Mrs. Crumbley were largely indifferent as parents and disregarded
the fact that EC was experiencing mental health issues;
• That Mr. and Mrs. Crumbley, after learning of the school shooting, both suspected
EC was the shooter;
• That Mr. and Mrs. Crumbley should have uncovered EC’s journal, wherein he
repeatedly referenced a school shooting, as well as other videos and social media
posts made by EC, evidencing a fascination with firearms; and,
3
Oakland County Prosecuting Attorney Karen McDonald’s press conference, Dec. 3, 2021,
available at: https://www.freep.com/story/news/local/michigan/oakland/2021/12/03/oxford-high-
school-shooting-oakland-county-prosecutor-karen-mcdonald/8854395002/, hereinafter 12/3/21
press conference.
2
• That Mr. and Mrs. Crumbley could have taken EC home when they learned of the
disturbing drawings EC made on his math homework.4
At the exam, the prosecution introduced various journal entries and text messages authored
by EC. After EC committed the school shooting at Oxford High School, law enforcement found
EC’s backpack in a school bathroom and seized a journal from the backpack. The journal contains
writings by EC. A copy of the 22-page journal was given to the defense as discovery.5 The journal
has EC’s detailed plans to commit a mass murder at the school (Preliminary Examination
Transcript, Vol. II (PET II) at 224-233). It also contains writings about past events including
actions and statements of his parents, criticisms of school officials and his parents, and other,
highly disturbing and offensive material. There is no evidence that EC’s parents knew about or
ever saw EC’s journal. The prosecution also elicited testimony from law enforcement recounting
various text messages EC sent to a friend nearly eight months prior to the school shooting. There
is no evidence that EC’s parents knew about or ever saw EC’s text messages.
The prosecution argued alternate theories and claimed it demonstrated “two ways” in
which the Crumbleys were guilty of involuntary manslaughter: the first being gross negligence in

the performance of a lawful act, and the second being gross negligence in the failure to perform a
legal duty. (PET II at 242).
Ultimately, the defendants were bound over on all four counts of involuntary manslaughter.
The Honorable Julie Nicholson relied heavily on People v Head, 323 Mich App 526; 917 NW2d
4
As required to litigate certain dispositive motions, for purposes of this instant motion only, the
defense accepts the prosecution’s allegations as true. (See People v Redden, 290 Mich App 65, 83;
799 NW2d 184 (2010) (“When a defense is complete and there are no conflicting facts regarding
the defense, it could be argued that there was no probable cause to believe
that a crime had been committed.” (citation omitted)).
5
A copy of the 22-page journal will be provided to this Court under separate cover. For reasons
stated further in Defendants’ Brief, disseminating the journal to the public only furthers EC’s goal
to get attention and add to his “legacy.”
3
752 (2018), where this Court upheld a father’s conviction for involuntary manslaughter, after his
ten-year-old daughter found a loaded gun within the family home and accidentally shot and killed
her nine-year-old brother. (PET II at 266). The District Court analogized the Head Court’s analysis
of gross negligence and causation to the facts before it.
Thus, the District Court determined that “the deaths of the four victims could have been
avoided if the Crumbleys exercised ordinary care and diligence in the care of their son.” (PET II
at 269). The court stated:
Specifically, the Court finds that the prosecutor has shown by a probable cause
standard that, one, the defendant’s son [EC], presented a danger to the community;
number two, that the danger was apparent to an ordinary mind; number three, that
the defendants James and Jennifer Crumbley neglected to diligently address and/or
divert that danger; and, number four, that the danger resulted in the four deaths of
the young children at Oxford High School.
There was extensive testimony that [EC] was certainly a troubled young man and
that the defendants had knowledge of that situation, but they purchased a gun which
he believed was his and that he was free to use. Therefore, the Court is binding the
defendants over as charged. (PET II 269-270).
Once in the Circuit Court, Mr. and Mrs. Crumbley filed a Motion to Quash and a Motion in Limine

to Exclude Evidence that Would Violate Hearsay and Confrontation Rules. (Attached as
Appendices D and E).
Defendants’ Motion to Quash contended that the District Court abused its discretion in
finding probable cause to bind Mr. and Mrs. Crumbley over based on People v Marshall, 362 Mich
170; 106 NW2d 842 (1961), as well as the fact that the prosecution could not, as a matter of law,
demonstrate causation where the intentional misconduct of EC’s was an intervening cause and the
sole cause of harm to the victims. The Motion likewise argued that the charge of involuntary
manslaughter was unconstitutionally vague as applied to Mr. and Mrs. Crumbley. The People
responded to Defendants’ Motion to Quash, and on June 22, 2022, the trial court issued an opinion
4
and order denying Defendants’ Motion. (People’s Response Attached as Appendix F, Order
attached as Appendix A).
Defendants’ Motion in Limine to Exclude Evidence that Would Violate Hearsay and
Confrontation Rules argued that the journal entries and text messages offered by the prosecution
did not fall within a hearsay exception and were not admissible at trial. The Motion also argued
that texts and journal entries were more prejudicial than probative pursuant to MRE 403 and not
relevant pursuant to MRE 401 and 402. The People responded, and on June 27, 2022, the trial
court held a hearing where the Court granted in part and denied in part Defendants’ Motion.
(People’s response attached as Appendix G, Motion Hearing Transcript, in relevant part, attached
as Appendix C, and Order attached as Appendix B).
Mr. and Mrs. Crumbley now file this interlocutory application for leave to appeal the orders
denying Defendants’ Motion to Quash and Defendants’ Motion in Limine to Exclude Evidence
that Would Violate Hearsay and Confrontation Rules. On June 27, 2022, the trial court denied
Defendants’ Motion to Stay.
5
I. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANTS’ MOTION TO
QUASH DUE TO THE FACT PEOPLE V MARSHALL, 362 MICH 170; 106 NW2d 842
(1961), FORECLOSES THE STATE’S ABILITY TO PROSECUTE MR. AND MRS.
CRUMBLEY FOR INVOLUNTARY MANSLAUGHTER, THE STATE CANNOT
DEMONSTRATE CAUSATION, AND THE INVOLUNTARY MANSLAUGHTER
STATUTE IS UNCONSTITUTIONALLY VAGUE AS APPLIED TO DEFENDANTS.
Issue Preservation / Standard of Review
Mr. and Mrs. Crumbley litigated a Motion to Quash at the trial court, and the issue is
preserved. A district court’s decision to bind over a defendant is reviewed for an abuse of
discretion. People v Dowdy, 489 Mich 373, 379; 802 NW2d 239 (2011). A trial court abuses it
discretion by choosing an outcome that falls outside the range of reasonable and principled
outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). “A trial court necessarily
abuses its discretion when it makes an error of law.” People v Duncan, 494 Mich 713, 723; 835
NW2d 399 (2013).
Moreover, where the decision entails a question of statutory interpretation, i.e., whether
the alleged conduct falls within the scope of a penal statute, the issue is a question of law that is
reviewed de novo. See People v Stone, 463 Mich 558, 561; 621 NW2d 702 (2001); People v

Waltonen, 272 Mich App 678, 683; 728 NW2d 881 (2006). Likewise, constitutional issues are
reviewed de novo. Kloian v Schwartz, 272 Mich App 232, 244; 725 NW2d 671 (2006).
Law and Argument
A. The Supreme Court of Michigan’s Holding in People v Marshall, 362 Mich

170; 106 NW2d 842 (1961), Forecloses the State’s Ability to Prosecute Mr. and
Mrs. Crumbley for Involuntary Manslaughter.
In Michigan, involuntary manslaughter is a common-law crime and defined as follows:
[T]he killing of another without malice and unintentionally, but in doing some
unlawful act not amounting to a felony nor naturally tending to cause death or great
bodily harm, or in negligently doing some act lawful in itself, or by the negligent
omission to perform a legal duty. (People v Ryczek (1923), 224 Mich 106, 110
(1923).
6
“The usual situations in which involuntary manslaughter arises are either when death results from
a direct act not intended to produce great bodily harm or when death results from criminal
negligence.” People v Daniels, 172 Mich App 374, 379; 431 NW2d 846 (1988). In this case, the
prosecution sets forth two theories it claims gives rise to involuntary manslaughter liability: (1)
gross negligence, and/or (2) gross negligence in the failure to perform a legal duty. (See 3/1/22
Felony Information). Nevertheless, the Information here must be quashed, as neither of the
prosecution’s theories are legally sustainable.
The Supreme Court of Michigan has made clear that “[c]riminal guilt under our law is
personal fault.” People v Sobczak, 344 Mich 465, 470; 73 NW2d 921 (1955). “It is the very essence
of our deep-rooted notions of criminal liability that guilt be personal and individual.” People v
Scott, 29 Mich App 549, 555; 185 NW2d 576 (1971), quoting Sayre, “Criminal Responsibility for
the Acts of Another,” 43 Harvard Law Review 689, 716 (1930). Moreover, “[i]t is highly
individualistic” and “comes not from association, without more, be it with family or friends.”
Sobczak, 344 at 470.

The Supreme Court of Michigan reinforced the long-standing tenet of personal guilt when
it decided People v Marshall, 362 Mich 170; 106 NW2d 842 (1961), the legal theory of which is
remarkably similar to the prosecution of Mr. and Mrs. Crumbley. In Marshall, at approximately 3
a.m., Neal McClary drove a car the wrong direction on an expressway and crashed head on into a
car driven by James Coldiron. Id. at 171. Both drivers were killed. Id. As a result of the accident,
William Marshall was found guilty of involuntary manslaughter. Id. As explained by the Court:
At the time the fatal accident took place, he, the defendant, William Marshall, was
in bed at his place of residence. His connection with [the accident] was that he
owned the car driven by McClary, and as the evidence tended prove, he voluntarily
gave his keys to the car to McClary, with knowledge that McClary was drunk. (Id.
at 171-172).
7
Ultimately, the Supreme Court determined that Marshall, as a matter of law, was not guilty
of involuntary manslaughter. Id. at 173. Given the importance of the Marshall Court’s analysis, it
will be fully recounted here, beginning with the arguments of the prosecution:
The State relies on a case, Story v United States, in which the owner, driving with
a drunk, permitted him to take the wheel, and was held liable for aiding and abetting
him “in his criminal negligence.” The owner, said the court, sat by his side and
permitted him “without protest so recklessly and negligently to operate the car as
to cause the death of another.” If defendant Marshall had been by McClary’s side
an entirely different case would be presented, but on the facts before us Marshall,
as we noted was at home in bed.
The State also points out that although it is only a misdemeanor to drive while
drunk, convictions for manslaughter arising out of drunk driving have often been
sustained. It argues from these cases that although it was only a misdemeanor for
an owner to turn his keys over to a drunk driver, nevertheless a conviction for
manslaughter may be sustained if such driver kills another. This does not follow
from such cases as Story, supra.
In the case before us death resulted from the misconduct of the driver. The
accountability of the owner must rest as a matter of general principle, upon his
complicity in such misconduct. In turning his keys over, he was guilty of a specific
offense, for which he incurred a specific penalty. Upon these facts he cannot be
held a principal with respect to the fatal accident: the killing of Coldiron was
not counseled by him, accomplished by another acting jointly with him, nor

did it occur in the attempted presence of some common enterprise. (Id. at 172-
173) (internal citations omitted) (emphasis added).
The significance of such a holding cannot be understated here, where the prosecution seeks
to hold Mr. and Mrs. Crumbley criminally liable for the independent acts of EC. In the same vein
as Marshall, the prosecution seeks to tether liability to the Crumbleys on the basis that they failed
to appropriately secure a firearm while knowing that EC posed a risk to others. The same is true
for the defendant in Marshall, who voluntarily turned over his vehicle to a visibly intoxicated third
party. Yet, the Court in Marshall found these facts insufficient to find one guilty of involuntary
manslaughter. Instead, the Court required the State to demonstrate either: (1) physical presence,
(2) counseling in the killing, (3) joint action, and/or (4) common enterprise.
8
Of course, the Crumbleys did not counsel EC in the commission of the school shooting or
act jointly with EC in any way; to the contrary, the Crumbleys had no knowledge that their son
intended to commit multiple homicides on November 30, 2021. Nor did any common enterprise
exist.
As evidenced by the limited cases interpreting Marshall, the legal standard pronounced has
typically been supported in analyses pertinent to accomplice liability and proximate causation. See
People v Turner, 125 Mich App 8, 12; 336 NW2d 217 (1983) (noting that unlike Marshall, the
physical presence of the defendant and his direction to point the gun at another was clearly
sufficient to establish liability as an accomplice to involuntary manslaughter); People v Pitts, 84
Mich App 656; 270 NW2d 482 (1978) (addressing whether guilt as an aider and abettor requires
that the accused share the requisite criminal intent with the principal and distinguishing Marshall
on the lack of common enterprise and physical presence); People v Scott, 29 Mich App 549, 552;
185 NW2d 576 (1971) (addressing proximate causation).
Nonetheless, the lack of caselaw interpreting Marshall is to be expected, given that

prosecutors do not typically attempt to hold persons who lacked any participation liable for the
premeditated homicides of others. Instead, one is typically only held criminally responsible for the
premeditated murder of another where the person “procure[d], counsel[ed], aid[ed], or abet[ted]”
in the commission of the offense. MCL 767.39. Certainly, if the prosecution could directly link
Mr. or Mrs. Crumbley to the mass shooting, they would be prosecuted for first-degree murder as
if they had directly committed the offense. However, because the prosecution cannot support such
a claim, they are left attempting to fit a square peg into a round hole, and the Information must be
quashed.
9
Nevertheless, the trial court found Marshall inapposite to Mr. and Mrs. Crumbley’s
criminal prosecution. This was in error. In support of its opinion, the trial court cited to People v
Retelle, 173 Mich App 196; 433 NW2d 401 (1988) and People v Pittinger, 105 Mich App 736;
307 NW2d 715 (1981) to explain that “[i]f negligence exists to such a degree that it rises to gross
negligence resulting in death, then there is not just civil liability but also criminal culpability under
an involuntary manslaughter theory.” (Opinion and Order, Appendix A, at 3-4). Retelle and
Pittinger, however, both involved defendants who were directly involved in and responsible for
the deaths of others. (See Retelle, 173 Mich App at 200 (where the defendant was driving drunk
and killed a passenger when he got into an accident) and Pittinger, 105 Mich App at 737 (where
defendant was driving drunk and killed another)). Moreover, Retelle involved a defendant
attempting to withdraw a guilty plea because of intoxication and an insufficient factual basis,
Retelle, 173 Mich App at 198-99, and Pittinger also involved a defendant attempting to withdraw
a plea, Pittinger, 105 Mich App at 741. Thus, those cases cannot be used to support the trial court’s
finding here, where the facts were analogous to those in Marshall.

B. The Information Must Be Quashed because the Prosecution Cannot, as a
Matter of Law, Demonstrate Causation, Whether the Intentional Misconduct
of EC Constitutes an Intervening Cause, and EC’s Criminal Conduct was the
“Sole Cause of Harm” to the Victims.
Involuntary manslaughter contains an element of causation that must be proven beyond a
reasonable doubt.6 In People v Schaefer, the Supreme Court of Michigan stated that in the criminal
law context, the term “ ‘cause’ has acquired a unique, technical meaning.” 473 Mich 418, 435
(2005), modified in part on other grounds by People v Derror, 475 Mich 316, 334; 715 NW2d 822
6
See M Crim JI 16.10, stating that the prosecutor must prove beyond a reasonable doubt “that the
defendant caused the death[,] and M Crim JI 16.13, stating that the prosecutor must prove beyond
a reasonable doubt that “the death was directly caused by defendant’s failure to perform this
duty[.]”
10
(2006), overruled in part on other grounds by People v Feezel, 486 Mich 184, 207; 783 NW2d 67
(2010). Specifically, the term and concept has two parts: factual causation and proximate
causation. Id. at 435-436. In People v Feezel, while relying heavily on Schaefer, the Supreme Court
of Michigan explained:
Factual causation exists if a finder of fact determines that "but for" a

defendant's conduct the result would not have occurred. [Schaefer, 473 Mich at
435-436.] A finding of factual causation alone, however, is not sufficient to hold
an individual criminally responsible. Id. at 436. The prosecution must also establish
that the defendant's conduct was a proximate cause of…the victim's death. Id.
Proximate causation "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." Id. If the finder of fact determines that an intervening cause supersedes
a defendant's conduct "such that the causal link between the defendant's conduct
and the victim's injury was broken," proximate cause is lacking and criminal
liability cannot be imposed. Id. at 436-437. Whether an intervening cause
supersedes a defendant's conduct is a question of reasonable foreseeability. Id. at
437. Ordinary negligence is considered reasonably foreseeable, and it is thus not a
superseding cause that would sever proximate causation. Id. at 437-438. In
contrast, "gross negligence" or "intentional misconduct" on the part of a
victim is considered sufficient to "break the causal chain between the
defendant and the victim" because it is not reasonably foreseeable. Id. Gross
negligence, however, is more than an enhanced version of ordinary negligence. Id.
at 438. "It means wantonness and disregard of the consequences which may ensue. .

. ." People v Barnes, 182 Mich 179, 198; 148 NW 400 (1914). "Wantonness" is
defined as "[c]onduct indicating that the actor is aware of the risks but indifferent
to the results" and usually "suggests a greater degree of culpability than
recklessness. . . ." Black's Law Dictionary (8th ed). Therefore, while a victim’s
negligence is not a defense, it is an important factor to be considered by the trier of
fact in determining whether proximate cause has been proved beyond a reasonable
doubt. See, e.g., People v Campbell, 237 Mich 424, 430-431; 212 NW 97 (1927)
(People v. Feezel, 486 Mich. 184, 194-95; 783 NW2d 67 (Mich. 2010) (internal
footnotes omitted) (emphasis added).
Significantly, Schaefer’s analysis was not limited to the gross negligence or intentional
misconduct of victims, but also applied to the gross negligence or intentional misconduct of third
parties. The Court explained:
The linchpin in the superseding cause analysis, therefore, is whether the intervening
cause was foreseeable based on an objective standard of reasonableness. If it was
11
reasonably foreseeable, then the defendant’s conduct will be considered a
proximate cause. If, however, the intervening act by the victim or a third party
was not reasonably foreseeable -- e.g. gross negligence or intentional
misconduct -- then generally the causal link is severed and the defendant’s
conduct is not regarded as a proximate cause of the victim’s injury or death.
(Schaefer, 473 Mich at 437.).
In this case, EC engaged in four counts of first-degree premeditated murder in connection with a
mass shooting. It is difficult to fathom a more deliberate and calculated act constituting intentional
misconduct.
Notably, the conduct of EC is inapposite to the conduct at issue in People v Head, where a
ten-year-old “retrieved a loaded shot gun” from her father’s closet and “accidentally” shot and
killed her nine-year-old brother. 323 Mich 526, 533; 917 NW2d 752 (2018). Clearly, in Head, the
ten-year-old’s conduct, i.e. the third party conduct, was not grossly negligent or intentional
misconduct. Instead, the case is clear that the killing was wholly accidental, and thus insufficient
to break the causal link between the actions of the defendant father and his child.
Moreover, the facts and circumstances presented here fit squarely within the strictures of
People v Bailey, where the Supreme Court held that “[w]here an independent act of a third party

intervenes between the act of a criminal defendant and the harm to a victim, that act may only
serve to cut off the defendant’s criminal liability where the intervening act is the sole cause of
harm.” 451 Mich 657, 676 (1996), amended in part on other grounds 453 Mich 1204 (1996).
Here, the “independent act”, the mass shooting perpetrated by EC, and the “sole cause of
harm” lay solely with EC’s horrific acts. See People v Zak, 184 Mich App 1; 457 NW2d 59 (1990)
(determining that a third party’s voluntary act of shooting and killing the victim constituted the
intervening and proximate cause of the victim’s death, where the defendant sold the firearm used
to commit the murder to the third party and accompanied the third party to the home of the victim,
where the murder took place).
12
Thus, the trial court erred when it upheld the District Court’s decision to bind Defendants
over for trial, given that the prosecution cannot, as a matter of law, meet their burden in
demonstrating Mr. and Mrs. Crumbley were the cause of the victims’ deaths. Despite the low level
of proof required at preliminary examination, “the magistrate must always find that there is
‘evidence regarding each element of the crime charged or evidence from which the elements
may be inferred’ in order to bind over a defendant.” People v Hudson, 241 Mich App 268; 615
NW2d 784 (2000), quoting People v Selwa, 214 Mich App 451, 457; 543 NW2d 321 (1995)
(emphasis added). Where, however, such evidence is lacking, review is appropriate, and a trial
court must quash the Information. See Hudson, 241 Mich App at 284, (interlocutory appeal where
the court concluded that the district court abused its discretion when it bound defendant over for
trial, where the evidence was lacking to demonstrate the defendant “actually” caused the victim’s
injuries).
C. The Information Must also Be Quashed Because the Charge of Involuntary

Manslaughter is Unconstitutionally Vague as Applied to Mr. and Mrs.
Crumbley and Only the Legislature Can Define a New Crime.

The Due Process Clause forbids punishing a criminal defendant for conduct that he or she
could not reasonably understand to be proscribed. See People v Austin, 185 Mich App 334, 336;
460 NW2d 607 (1990). As the United States Supreme Court has stated, due process requires that
a penal statute define a criminal offense “‘(1) with sufficient definiteness that ordinary people can
understand what conduct is prohibited and (2) in a manner that does not encourage arbitrary and
discriminatory enforcement.’” Skilling v United States, 561 US 358, 402-403 (2010), quoting
Kolender v Lawson, 461 US 352, 357 (1983). In essence, a criminal law must provide the public
with fair notice as to what is prohibited and limit the potential for arbitrary enforcement. City of
13
Chicago v Morales, 527 US 41, 56 (1999). A law is impermissibly vague if it fails to do either.
Hill v Colorado, 530 US 703, 732 (2000).
Here, neither Mr. and Mrs. Crumbley, nor an ordinary person, would have understood that
the conduct alleged by the prosecution would subject a parent to the charge of involuntary
manslaughter. In addition, the prosecution of Mr. and Mrs. Crumbley highlights the perils of
permitting a statute to be enforced in a wholly arbitrary manner. In reviewing the prosecution’s
offer of proofs at the preliminary examination, it begs the question of when a parent will cross the
subjective line of “good parenting” and render himself or herself criminally liable for the
independent acts of a teenager. Of course, for parents, this interpretation should be particularly
troubling, given that the line-crossing is not dependent on the act of the parent, but of the teenager.
The desire to hold someone accountable for the tragedy that occurred at Oxford High
School on November 30, 2021 is certainly understandable, but “[t]he temptation to stretch the law
to fit the evil is an ancient one, and it must be resisted.” Moskal v United States, 498 US 103, 132
(1990) (Scalia, J., dissenting). In Marshall, supra, for example, the State urged the Supreme Court

of Michigan to find that the defendant’s penalty for knowingly permitting an intoxicated person to
drive an automobile was not sufficient punishment, where the third party’s drunk driving resulted
in another’s death. Marshall, 362 Mich at 173. In striking similarity to what the prosecution has
represented in this case, the State in Marshall claimed that their theory of manslaughter “was borne
of necessity,” and that the urgency of the drunk-driver problem “made it incumbent upon
responsible and concerned law enforcement officials to seek new approaches to a new problem
within the limits of our law.”
14
In resisting the urge to extend the law, however, the Supreme Court noted that to interpret
the manslaughter statute in such a way would impose “open-ended criminal liability.” The Court
explained:
That is to say, whether the owner may ultimately go to prison for manslaughter or
some lesser offense will depend upon whatever unlawful act the driver commits
while in the car. Such a theory may be defensible as a matter of civil liability but
Gellhorn's language in another criminal context is equally applicable here: "It is a
basic proposition in a constitutional society that crimes should be defined in
advance, and not after action has been taken." [See US Const, art 1, §§ 9, 10; Mich
Const 1908, art 2, § 9.] We are not unaware of the magnitude of the problem
presented, but the new approaches demanded for its solution rest with the
legislature, not the courts. (Id. at 174).
The same is true here.
As explained by Prosecutor McDonald at the December 4, 2021 press conference, the intent
in charging Mr. and Mrs. Crumbley with involuntary manslaughter was “to hold the individuals
who contributed to this tragedy accountable, and also send a message that gun owners have a
responsibility.” (12/4/21 press conference at 7:48). She likewise indicated that “Michigan’s laws
are woefully inadequate[,]” referencing the fact that Michigan does not have a “safe storage law”

that would “legally require” gun owners to store their firearms “in a safe manner.” (Id. at 17:00).
Thus, there can be little doubt that the charges against Mr. and Mrs. Crumbley, like the
charge in Marshall, are borne out of a desire to hold persons accountable for criminal acts, where
no legal justification exists to do so. However, to extend the law in such a way involves important
policy decisions of broad social consequences, reaching far beyond this single case. Such a task,
then, should be resolved through the legislative process, and not judicial innovation. See People v
Deneweth, 14 Mich App 604; 165 NW2d 910 (1968) (“Only the legislature can define a new crime.
The courts may not.”).
15
Nevertheless, the trial court determined that “the elements of gross negligence and
causation are a well-established pare of Michigan jurisprudence” and “the fact that one may be
grossly negligent in a variety of ways does not make the law impermissibly vague.” (Opinion and
Order, Appendix A, at 6). This conclusion, however, fails to explain how a parent would
understand criminal liability in a situation such as this, when their son, acted as an intervening
force in causing the deaths of others. Moreover, the trial court did not address the arbitrariness of
the prosecution’s decision to charge Mr. and Mrs. Crumbley.
II. THE TRIAL COURT ERRED WHEN IT DEEMED ADMISSIBLE VARIOUS

TEXT MESSAGES AND JOURNAL ENTRIES AUTHORED BY EC BECAUSE THEY
DO NOT SATISFY ANY EXCEPTION TO THE PROHIBITION OF HEARSAY, THE
STATEMENTS ARE NOT RELEVANT, THE STATEMENTS ARE NOT ADMISSIBLE
PURSUANT TO MRE 403, AND THE STATEMENTS, IF ADMITTED, VIOLATE THE
CONFRONTATION CLAUSE OF THE UNITED STATES AND MICHIGAN
CONSTITUTIONS.
Issue Preservations / Standard of Review:
Mr. and Mrs. Crumbley litigated a Motion in Limine to Exclude Evidence that Would
Violate Hearsay and Confrontation Rules at the trial court, and this issue is preserved. The Court

of Appeals reverses a district court’s decision to admit evidence only where there has been an
abuse of discretion. People v Lukity, 460 Mich 484, 488; 596 N.W.2d 607 (1999). However, as is
the case here, the decision frequently involves a preliminary question of law, such as whether a
rule of evidence or statute precludes the admission of the evidence. This Court reviews questions
of law de novo. Id.; People v. Starr, 457 Mich 490, 494; 577 N.W.2d 673 (1998). Therefore, when
such preliminary questions are at issue, the Court will find an abuse of discretion when a trial court
admits evidence that is inadmissible as a matter of law. Id.
16
Law and Argument:
“Hearsay” is a statement, other than the one made by the declarant while testifying at trial
or hearing, offered into evidence to prove the truth of the matter asserted. MRE 801(c). Under
Michigan’s rules of evidence, hearsay is inadmissible unless a valid exception applies. MRE 802.
Here, the journal entries and text messages at issue are clearly hearsay. They are statements of the
declarant, EC, made prior to any trial, offered to prove the truth of the matters asserted therein.
The prosecution does not dispute the same and categorizes the statements as “relevant
evidence showing that [Defendants] failed to use ordinary care and, perhaps even more
importantly, that their use of ordinary care would have prevented these murders.” (People’s
Response, Appendix G, at 2-3) (emphasis in original). Thus, in holding the statements in question
admissible, the trial court relied on three exceptions to the hearsay rule: (1) the exception for
present sense impression; (2), the exception for then-existing mental, emotional, or physical
condition, and (3) the residual hearsay exception. Each will be discussed in turn below. (See
Appendix C).

A. The Present-Sense Impression Exception:
A present sense impression is “[a] statement describing or explaining an event or condition
made while the declarant was perceiving the event or condition, or immediately thereafter.” MRE
803(1). It allows for the admission of hearsay if the statement at issue provides an explanation or
description of the perceived event or condition, the declarant personally perceived the event or
condition, and the explanation or description was made “substantially contemporaneous” with the
event or condition. People v Hendrickson, 459 Mich 229; 586 NW2d 906 (1998).
Courts have not prescribed a precise time limit within which a statement must be made in
order to qualify as a present sense impression. Instead, courts look to the rationale behind the
17
exception and the facts of each particular case. As the Supreme Court of Michigan has explained,
the principle underlying the exception is the idea that statements about an event and made soon
after perceiving that event are especially trustworthy because substantial contemporaneity of the
event and statement negate the likelihood of deliberate or conscious misrepresentation. See Id. at
235, quoting FRE 803(1) advisory committee note; Navarette v California, 572 US 393, 400
(2014). Moreover, the “[p]ermissible subject matter” of a present-sense impression is “limited…to
description or explanation of the event or condition, the assumption being that spontaneity, in the
absence of a startling event, may extend no farther.” FRE 803, advisory committee’s note.
Here, however, the journal entries related to EC’s mental health are not admissible pursuant
to MRE 803(1) because they are not statements describing an event or condition. This is clear from
the face of the statements proffered by the prosecution:
• “I want help but my parents don’t listen to me so I can’t get any help.”
• “I have ZERO help for my mental problems and it’s causing me to SHOOT UP
THE FUKING SCHOOL.”
• “My parents won’t listen to me to me about help or a therapist.”

Certainly, these statements do not describe an event.7 What condition, then, are these statements
meant to describe?
The prosecution, relying on Random House Webster’s College Dictionary (1997), defines
“condition” “in relevant part” as “a particular mode of being of a person or thing; existing state;
situation with respect to circumstances[.]” (People’s Response, Appendix G, at 8-9). The
prosecution goes on to note that each statement regarding EC’s mental health “describes the
7
The prosecution concedes the same in its response. (See People’s Response, Appendix G, at 8-
9).
18
‘situation with respect to circumstances’ of the defendant’s [sic] mental health and desire to obtain
such help.” (Id. at 9).
On two other occasions, however, this Court, relying on the same dictionary cited by the
People, has defined “condition” as “a restricting, limiting, or modifying, circumstance[.]” See 1373
Moulin, LLC v Wolf, ___ Mich App ___, issued May 26, 2022 (Docket No. 360569), p 7; Burger
v. Ford Motor Co., unpublished per curium opinion of the Court of the Appeals, issued Jan. 14,
2014 (Docket No. 307312), p 10 (also defining “condition” as “a circumstance indispensable to
some result; prerequisite.”). Thus, the prosecution either incorrectly incorporates the phrase
“situation with respect to circumstances” into their definition of choice or misinterprets the
phrase.8
The prosecution’s error is highlighted when one tries to marry the journal entries with MRE
803(1)’s additional requirement of substantial contemporaneity. Specifically, what event or
occurrence was EC perceiving when he wrote the entry, “I want help but my parents don’t listen
to me so I can’t get any help”? What event or occurrence did EC perceive immediately prior to

writing the statement? The answer, of course, is that these statements do not concern events or
occurrences. The same is true regarding the two remaining statements, as neither recounts an event
or occurrence happening in tandem with an observation made by EC. There is not an event or
condition EC could have perceived, prompting him to write: “I have ZERO help for my mental
problems and it’s causing me to SHOOT UP THE FUKING SCHOOL.” Nor is there an event or
condition prompting EC to write “My parents won’t listen to me about help or a therapist.” Thus,
8
This proposition is supported by the fact that a search of Michigan caselaw reveals that the phrase
“situation with respect to circumstances” has never appeared in an opinion of this Court or the
Supreme Court of Michigan.
19
MRE 803(1) does not apply to EC’s journal entries because they do not describe events or
conditions.
Similarly, EC’s statement, “I have access to the gun and ammo[,]” is not admissible
pursuant to MRE 803(1). Unlike the mental health journal entries, however, the statement could,
conceivably, describe an event. Nevertheless, the context of the statement in the journal makes it
clear that the statement was not made in requisite contemporaneity with the Oxford High School
shooting to qualify under MRE 803(1).
EC’s journal is clear that the entry referring to gun and ammo was written over twenty-
four hours prior to the horrific shooting on November 30, 2021. This is known because the
journal’s final entry was written on November 29, 2021, at 1:23 p.m. (EC Journal at 775). The
timestamp, written by EC, is in the same entry where EC claims that he has “access to the gun and
ammo[.]” Also in this entry, however, is EC’s representation: “I was just looking up some bullet
calibers in ELA and got called down to the office for it.” (EC Journal at 775-776) (emphasis
added). Testimony at Mr. and Mrs. Crumbley’s preliminary examination established that the ELA

incident occurred prior to 11:53 a.m. on November 29, 2021. (PET I at 180-181). Thus, the entry
in question, where EC states, “I have access to the gun and ammo[,]” was written when EC was at
school, the day before the shooting, and could not have been written contemporaneously with the
event being described, i.e. actively accessing the gun and ammo.
Of course, “a slight lapse is allowable” if “precise contemporaneity is not possible.”
Hendricks, 459 Mich at 236 (holding a victim’s statements on a 911 call admissible where the
beating had just taken place, and the defendant was in the process of leaving the house as the victim
spoke), see also People v Chelmicki, 305 Mich App 58, 63; 850 NW2d 612 (2014) (finding 15
minutes between the event and the statement was substantially contemporaneous). Here, however,
20
the journal entry was written by EC at least a full day prior to when he committed the school
shooting.
Assuming, arguendo, then, that the prosecution seeks to admit the statement that EC had
access to the gun and ammunition at school on the day before the shooting, the same cannot be
independently corroborated, and a present sense impression cannot provide its own foundation for
admissibility. Hendrickson, 259 Mich at 237. Likewise, if the prosecution claims that EC’s journal
entry represents a blanket statement that EC always had unfettered access to the “gun and ammo,”
as explained above, the journal entry would no longer pertain to an event or condition.
As a result, and for the reasons stated above, the trial court erred when it determined EC’s
journal entries admissible pursuant to MRE 803(1).
B. The Then-Existing Mental State Exception:
The exception for a then-existing mental, emotional, or physical condition applies to “[a]
statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition
(such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a

statement of memory or belief to prove the fact remembered or believed…” MRE 803(3)
(emphasis added). Here, the trial court ruled three categories of statements admissible pursuant to
MRE 803(3): (1) the aforementioned mental health journal entries, (2) journal entries about EC’s
future plans to commit the school shooting, and (3) text messages EC sent to his friend in April of
2021, nearly eight months prior to the school shooting. (Motion Hearing Transcript, Appendix C,
at 30-31).
As this Court noted in People v Moorer, 262 Mich App 64, 73; 683 NW2d 736 (2004),
MRE 803(3) is identical to the federal rule for “state of mind” exceptions to hearsay evidence, and
21
“[c]omments accompanying the federal rule make it clear that the general use of statements of
mind that are based on past events…violate the purpose of the rule.” This Court explained:
The exclusion of statements of memory or belief to prove the fact remembered or

believed is necessary to avoid the virtual destruction of the hearsay rule which
would otherwise result from allowing state of mind, provable by a hearsay
statement, to serve as the basis for an inference of the happening of the event which
produced the state of mind. (Id. at 73-74, quoting FRE 803(3), Advisory
Committee’s Note, 56 FRD 183, 305 (internal quotation marks omitted)).
In other words, although the exception allows hearsay statements that show the declarant’s
then-existing mental condition, the rule does not permit evidence explaining why the declarant
held a particular state of mind. See Apanovitch v Houk, 466 F3d 460, 487 (CA6, 2006) (“That is
to say, a witness may testify that someone expressed to them fear of someone or something, but
they may not testify as to that person’s explanation of why they were afraid.”). The exception is
limited to statements showing the mental state, not its cause.
Additionally, even where a statement expresses a declarant’s mental state, the state of mind
must be relevant. Relevant evidence is generally admissible, and irrelevant evidence is not. MRE
401 and MRE 402. Evidence is relevant if it has “any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” MRE 401. Relevance and materiality are governed by the
relationship of the elements of the charge, the theories of admissibility, and the defenses. People
v Yost, 278 Mich App 341, 403; 749 NW2d 753 (2008).
Here, it is important to remember that the question before the jury is not whether EC was
homicidal and suffered from mental illness. Instead, the requisite mental state for the type of
involuntary manslaughter charged is gross negligence on behalf of Mr. and Mrs. Crumbley. Gross
negligence means wantonness and a disregard for consequences that may ensue. Feezel, 486 Mich
at 195. Wantonness exists when the defendant is aware of the risks but indifferent to the results[.]”
22
Id. at 196 (emphasis added). Thus, with these principles in mind, each statement deemed
admissible will be discussed below.9
(1) Journal Entry: “I want help but my parents don’t listen to me so I can’t get
any help.”
The defense does not dispute that EC’s statement, “I want help[,]” is a then-existing mental
state; however, the balance of the statement is historical in nature, referencing past events, i.e. my
parents don’t listen to me, to substantiate a present belief, i.e. so I can’t get any help. This is
expressly precluded by MRE 803(3).
What is left, then is the portion of the journal entry stating, “I want help[.]” EC’s state of
mind, however, is not relevant because his mental state is not at issue in this case. Here, the
prosecution does not, and cannot, offer evidence that either Mr. or Mrs. Crumbley were aware of
EC’s journal or the entries therein. Therefore, the statement is not relevant as it does not reflect
upon Mr. or Mrs. Crumbley’s state of mind.
(2) Journal Entry: “I have zero HELP for my mental problems and it’s causing

me to SHOOT UP THE FUKCING SCHOOL.”
The statement “I have zero help for my mental problems” is likewise a statement of belief
based on past events, which MRE 803(3) prohibits. This is clear when one considers the purpose
for which the People seek its admission: to demonstrate that EC, historically and repeatedly, had
been denied mental health treatment by his parents. And like the statements referenced above,
9
In Williamson v United States, 512 US 594; 114 SCt 2431 (1994), the Supreme Court required
consideration of each individual statement where the Court wrestled with the hearsay exception
for statements against interest. That exception, like the one for present-sense impressions, applies
only to a “statement.” Similarly, in People v Moorer, 262 Mich App 64, 66; 683 NW2d 736 (2004),
this Court noted that a proper analysis of admissibility requires that the nature of each statement
be considered specifically, as well as the purpose for each statement’s admission.
23
EC’s representation about mental health, in his journal that his parents were not aware of, is not
relevant to a fact of consequence.
Moreover, the statement about what EC’s belief is causing him to do is not a then-existing
mental state. It does not evidence an existing mental, emotional, or physical condition, nor does it
evidence a future intent or plan. The statement is also not relevant due to the fact neither Mr. or
Mrs. Crumbley were aware of the statements, and therefore, the statement cannot be admissible to
show the effect it had on EC’s parents.
(3) Journal Entry: “My parents won’t listen to me about help or a therapist.”
Here, again, EC’s statement is a belief based on past events, and statements of belief are
not allowed to prove facts remembered. Admission of statements that are simply perceptions or
beliefs a declarant has of events is not justified under the rationale for the state of mind exception.
This statement does not express an existing state of mind, emotion, sensation, or physical
condition. Instead, it is a thought.
(4) Journal Entries About EC’s Plans to Commit the School Shooting:

EC made the following statements in his journal:
• “…the shooting is tomorrow”;
• “I’m about to shoot up the fucking school and spend the rest of my life in prison”:
As per People v Fisher, 449 Mich 441, 453; 537 NW2d 577 (1995) (Fisher II), these statements
likely qualify as a then-existing mental state because the statements represent EC’s then-existing
plan.10
10
The defense, in recognizing People v Fisher, 449 Mich 441, 453; 537 NW2d 577 (1995) (Fisher
II), does not waive future argument that Fisher II was incorrectly decided. Not surprisingly, this
Court has previously taken issue with Fisher II’s holding. People v Smelley, 285 Mich App 314;
775 NW2d 350 (2009), vacated in part on other grounds 485 Mich 1023. For purposes of this
24
Nevertheless, these statements should be excluded because they are not relevant to any fact
that is of consequence in this case. Again, the prosecution does not, and cannot, offer evidence that
either Mr. or Mrs. Crumbley were aware of EC’s journal or the statements therein, and EC’s state
of mind is not at issue in this case. Any statements EC made that Mr. and Mrs. Crumbley were not
aware of bear no effect on whether either parent acted wantonly. Again, wantonness exists when
the defendant is aware of the risks but indifferent to the results, and here, the prosecution cannot
demonstrate knowledge on behalf of Mr. or Mrs. Crumbley.
(5) Text Messages Stating That EC Was Going to Ask to go to a Doctor and Heard
Voices:11
Nearly eight months prior to the school shooting, EC sent the following texts to his friend:
[EC]: I am going to ask my parents to go to the doctor’s tomorrow or Tuesday again
[EC]: But this time I am going to tell them about the voicees [sic]
These text messages were not addressed by the trial court when issuing its holding. Assumedly,
however, the statements were found admissible as EC’s future plan. The future plans, however,
were undoubtedly based upon past events. This is clear from EC’s usage of the words “again” and

“this time.” Accordingly, the statements are inadmissible under MRE 803(3). Moreover, EC’s
then-existing mental state, nearly eight months prior to the school shooting, is simply not relevant.
(6) Text Message: “Like it’s at the point that I am asking to got [sic] the doctor”
This statement is clearly a narrative account of past events formulated after time for
reflection, and inadmissible under MRE 803(3). Here, EC is recounting for his friend that he has,
in the past, asked to go to the doctor. This is evidenced from the surrounding text messages, which
Application, since this Court is bound by Supreme Court precedent, and because Fisher II is
distinguishable, Defendants will not put forth that argument here.
11
All text messages hereafter referenced were sent by EC to his friend between 11:56 p.m. and
12:39 a.m. on April 4, 2021, and April 5, 2021, nearly eight months prior to the school shooting.
25
are part of the same conversation and discussed below, that state EC asked his father to take him
to the doctor “yesterday.” Again, MRE 803(3) does not apply to beliefs or statements based on
past events. Moreover, a text sent nearly eight months prior to the school shooting is not relevant.
(7) Text Message: “Like I hear people talking to me and see someone in the
distenct [sic]”
This text message also recounts a past event and is specifically excluded under MRE
803(3). Here, EC is explaining to his friend that he has, in the past, heard people talking to him
and seen people in the distance. There is nothing to suggest, especially in the context of the
surrounding text messages, that EC was hearing voices or hallucinating as he was texting with his
friend, as is required for the then-existing state of mind exception to apply. Moreover, a text sent
by EC nearly eight months prior to the school shooting is not relevant.
(8) Text Messages Evidencing EC’s Mental Health Struggles:
The defense does not dispute that the following text messages are representative of EC’s
then-existing mental state and admissible under MRE 803(3):
• “But I am having bad insomnia rn and parinoa [sic]”

• “I need help”
• “Like I am mentally and physically dying”
However, EC’s mental state, eight months prior to the school shooting is not relevant to the instant
criminal prosecution. Even where a statement expresses a declarant’s mental state, the state of
mind must be relevant. Here, where no evidence to suggest that EC’s parents were aware of what
their son was texting his friend, the text messages regarding his mental state do not impact any fact
of consequence.
(9) Text Messages About Calling 911:
The trial court also held the following text messages admissible:
26
• “I was thinking of calling 911 so I could got [sic] the hospital”
• “But then my parents would be really pissed”
Again, these statements do not evidence a then-existing state of mind, emotion, sensation, or
physical condition. They also are not indicative of a future plan, motive, intent, or design, nor does
it concern a mental feeling, pain, or physical condition. Here, EC is telling his friend that he had
considered, in the past, calling 911, but decided not to. Again, this is a narrative of past events and
not admissible under MRE 803(3). Moreover, a text sent nearly eight months prior to the school
shooting is not relevant.
3. The Residual Exception:
Evidence offered under MRE 803(24), the residual exception, must satisfy four elements
to be admissible: (1) it must have circumstantial guarantees of trustworthiness equal to the
categorical exceptions, (2) it must tend to establish a material fact, (3) it must be the most probative
evidence on that fact that the offering party could produce through reasonable efforts, and (4) its
admission must serve the interests of justice.” MRE 803(24); People v Katz, 468 Mich 272, 290;

662 NW2d 12 (2003). The trial court determined that the following two text messages, sent by EC
to his friend nearly eight months prior to the school shooting, admissible pursuant to MRE 803(24):
• “I actually asked my dad to take me to the Doctor yesterday but he just gave me
some pills and told me to ‘Suck it up’ ”, and
• “My mom laughed when I told her”
As Michigan’s Supreme Court has cautioned, the requirements of the residual exception
“are stringent and will rarely be met, alleviating concerns that [it] will ‘swallow’ the categorical
[hearsay] exceptions through overuse.” Id. at 289. Thus, in Katz, the Court explained that ‘[t]he
first and most important requirement is that the proffered statement have circumstantial guarantees
27
of trustworthiness equivalent to those of the categorical hearsay exceptions.” Id. at 290. The Court
continued by noting that the limitation set forth in Idaho v Wright applies to the residual exception,
and “the use of corroborative evidence to determine the trustworthiness of statements offered under
the residual exception in criminal cases if the declarant does not testify at trial” is not permitted.
Id. at 292, citing Idaho v Wright, 497 US 823; 110 SCt 3139 (1990).
Here, however, the trial court failed to address whether the statements had circumstantial
guarantees of trustworthiness. Instead, the trial court stated the following:
The texts are offered as evidence that the shooter was in communication with his
parents about his mental health issues. They are more probative on the issue of
whether the declarant shooter made the Defendants aware – Defendants aware of
his mental health challenges than another other evidence that the Prosecutor may
procure. And the rule (ph) and interest of justice will be best be served by their
admission. (Motion Hearing Transcript, at p 31).
In discussing the trustworthiness requirement, the Federal Rules of Evidence Manual asks
courts, in part, to consider “[t]he personal truthfulness of the declarant.” Federal Rules of Evidence
Manual (Matthew Bender Co., Inc, 2002), § 807.02(4)(3) (citations omitted), as cited in Katz, 468
Mich, at 292, n 11. The Manual explains:

If the declarant is an untruthful person, this cuts against admissibility, while the
unimpeachable character for veracity cuts in favor of admitting the statement. The
government cannot seriously argue that the trust due an isolated statement should
not be colored by compelling evidence of the lack of credibility of its source:
although a checkout aisle tabloid might contain unvarnished truth, even a devotee
would do well to view its claims with a measure of skepticism. (Id.).
Here, the declarant, EC, is a mass murderer, yet the People asked the trial Court, and will likely
ask this Court, to categorize his statements as unquestionably truthful and honest.
Moreover, the statement attributed to Mr. Crumbley is hearsay within hearsay, given that
an officer or agent will be called to testify about the statement made by EC to recount the statement
made by his father. No exception to the rule prohibiting hearsay applies to the statement “suck it
28
up[,]” and hearsay within hearsay is excluded where no foundation has been established to bring
each independent statement within the hearsay exception. Solomon v Shuell, 435 Mich 104, 129;
457 NW2d 669 (1990).
The statements outlined above are also not admissible as they are not relevant to Mr. and
Mrs. Crumbley’s prosecution. In People v McKinney, the Michigan Supreme Court issued
guidelines on relevance and materiality of evidence:
[E]vidence proffered at trial must bear a particularly sufficient correspondence or

connection to a case before it can be properly admitted. This threshold
requirement represents the application of two distinct rules: first, the matter sought
to be established must be ‘in issue’; and, second, the proffered evidence must have
probative value with respect to that matter. (410 Mich 413, 418; 301 NW2d 824
(1981)).
Again, the text messages were sent to EC’s friend nearly eight months prior to the school shooting.
Thus, whether this alleged conversation occurred or not, it is not relevant to the school shooting
that occurred nearly eight months later.
D. The Confrontation Clause
In Crawford v Washington, 541 US 36; 124 SCt 1354 (2004), the Supreme Court concluded

that when the prosecution seeks to introduce “testimonial” statements against a criminal defendant,
the “accused” is being subjected to “witnesses against him,” and the defendant generally has a
right to confront those witnesses, without regard to whether the statements fall under a hearsay
exception. See also Const 1963, Art I, §20. The Confrontation Clause, then, bars the “admission
of testimonial statements of a witness who does not appear at trial unless he was unavailable to
testify, and the defendant had a prior opportunity for cross-examination.” Crawford, 541 US at 53-
54.
The right of defendants to cross-examine the witnesses against them is recognized as being
the most fundamental of constitutional rights. Crawford v Washington, 541 US 36; 124 S Ct 1354
29
(2004); Davis v Alaska, 415 US 308; 94 S Ct 1105 (1974); Lee v Illinois, 476 US 530; 106 SCt
2056 (1986); People v Reed, 393 Mich 342; 224 NW2d 867 (1975). “Restrictions on a criminal
defendant’s rights to confront adverse witnesses and to present evidence 'may not be arbitrary or
disproportionate to the purposes they are designed to serve.' ” Michigan v Lucas, 500 US 45; 111
S Ct 1743 (1991).
Unless EC testifies at trial and can be cross-examined, there will be no way to test the
reliability of the statements in the journal and the text messages to EC’s friend. EC makes claims
within his journal and texts about how his parents did various things, that they said various things,
and that he told his parents certain information. Mr. and Mrs. Crumbley dispute things that EC
writes and must have the ability to confront this evidence if it will be used at trial. The only witness
who can explain the content of the journal and the text messages is EC. If EC does not testify, and
cannot be cross-examined, the statements must be excluded. Moreover, if Mr. and Mrs. Crumbley
testify in their own defense, it would be their word against the word of someone who cannot be
cross-examined. If the parents do not testify, they would be convicted on the basis of words they

did not author, or even know about, which were not subject to cross-examination.
Importantly, as per the prosecution, the murders perpetrated by EC were premeditated.
EC’s journal was recovered in the backpack that EC brought to school on the day of the school
shooting, and his cell phone was recovered from his person. In his journal, EC represents that he
will spend the rest of his life in prison, evidencing EC’s intent not to be shot by the police or take
his own life. Consequently, without question, EC intentionally brought his journal and phone to
the school on November 30, 2021, for the sole purpose that they be found and analyzed by law
enforcement. Thus, the statements in the journal and the text messages are testimonial, as EC
would have known that the statements would be available for use at a later trial.
30
5. MRE 403
Even if any of the statements outlined above are deemed admissible, the trial court should
have barred their admission under MRE 403 since the “probative value” of the evidence is
“substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury…” Again, unless EC testifies at trial and can be cross-examined, there will be no way to
test the reliability of the statements in the journal and the text messages to EC’s friend. Such a
result is necessarily unfairly prejudicial.
“Evidence is unfairly prejudicial when there exists a danger that marginally probative
evidence will be given undue or preemptive weight by the jury.” People v Crawford, 458 Mich
376, 385; 582 NW2d 785 (1998). Here, the texts and journal entries, if found to be relevant, are
only marginally probative, given that there is no evidence that Mr. or Mrs. Crumbley ever saw the
text messages or journals, and EC’s mental state is not at issue in this case. Likewise, the text
messages occurred nearly eight months prior to trial.
31
CONCLUSION AND RELIEF REQUESTED
WHEREFORE, Defendants request that this Court grant leave to appeal.
Respectfully Submitted,
Dated: July 18, 2022 Mariell R. Lehman________

MARIELL R. LEHMAN (P74760)
Attorney for Defendant-Appellant
Lehman Law Firm, PLLC
8113 Wilson Street
Shelby Township, MI 48316
(586) 291-3414
32

James Crumbley Appeal

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James Crumbley Appeal

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STATE OF MICHGIAN

IN THE COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

v COA Docket No.:

JAMES ROBERT CRUMBLEY,

KAREN D. McDONALD (P59083) MARIELL R. LEHMAN (P74760)

DEFENDANT-APPELLANT’S INTERLOCUTORY APPLICATION FOR LEAVE TO

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*** ORAL ARGUMENT REQUESTED ***

MARIELL R. LEHMAN (P74760)

Dated July 18, 2022

INDEX OF AUTHORITIES ....................................................................................................... ii

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7.203(B)(1); MCR 7.205(A)(1); and MCR 7.205(A)(4).

Defendants Answer: Yes.

The People Answer: No.

The Trial Court Answers: No.

Defendants Answer: Yes.

The People Answer: No.

The Trial Court Answers: No.

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On Tuesday, November 30, 2021, fifteen-year-old EC perpetrated a mass shooting at

County Prosecuting Attorney Karen McDonald (hereinafter Prosecutor McDonald) announced

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responsible.” (Id. at 12:40).

of involuntary manslaughter.3 (12/3/21 press conference at 2:02). In announcing the charges,

“send a message that gun owners have a responsibility.” (Id. at 7:48).

held, and in part, the prosecution sought to demonstrate:

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legal duty. (PET II at 242).

of gross negligence and causation to the facts before it.

at 269). The court stated:

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Appendices D and E).

attached as Appendix A).

as Appendix C, and Order attached as Appendix B).

Defendants’ Motion to Stay.

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Issue Preservation / Standard of Review

NW2d 399 (2013).

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Law and Argument

A. The Supreme Court of Michigan’s Holding in People v Marshall, 362 Mich

In Michigan, involuntary manslaughter is a common-law crime and defined as follows:

prosecution’s theories are legally sustainable.

Sobczak, 344 at 470.

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sufficient to establish liability as an accomplice to involuntary manslaughter); People v Pitts, 84

185 NW2d 576 (1971) (addressing proximate causation).

Nonetheless, the lack of caselaw interpreting Marshall is to be expected, given that

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finding here, where the facts were analogous to those in Marshall.

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Involuntary manslaughter contains an element of causation that must be proven beyond a

Factual causation exists if a finder of fact determines that "but for" a

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parties. The Court explained:

* ORAL ARGUMENT REQUESTED *