PEOPLE OF MI V MICHAEL JOHN NYE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 17, 1997
Plaintiff-Appellee,
v
No. 176943
LC No. 94-36648-FH
MICHAEL JOHN NYE,
Defendant-Appellant.
Before: Saad, P.J., and Corrigan and R. A. Benson,* JJ.
PER CURIAM.
Defendant’s two-year-old daughter and a nineteen-year-old driver of another car both died in a
head-on collision on December 10, 1993. Defendant appeals from his conviction for involuntary
manslaughter, MCL 750.321; MSA 28.553, negligent homicide, MCL 750.324; MSA 28.556, and
operating a vehicle while under the influence of alcohol, MCL 257.625(1); MSA 9.2325(1). We
affirm.
I
Defendant first contends that the trial court erroneously instructed the jury. Defendant asserts
that the instructions caused the jurors to incorrectly believe that the contributory negligence of Ann
Marie Sorenson (the driver of the other car) could not be considered in relation to defendant’s
negligence. Because defendant failed to object to the court's instruction, he waived any error unless he
can show that it would be manifestly unjust to allow his conviction to stand. People v Van Dorsten,
441 Mich 540, 544-545; 494 NW2d 737 (1993). As a preliminary matter, it must be noted that it is
rare that an improper instruction will justify reversal of a criminal conviction when no objection has been
made in the trial court. Id., 441 Mich at 545. Because the instructions presented here were proper, we
do not believe that this case presents one of those rare instances.
We review the instructions in their entirety to determine if there is error requiring reversal.
People v Daniel, 207 Mich App 47, 53; 523 NW2d 830 (1994). We note that the instructions
* Circuit judge, sitting on the Court of Appeals by assignment.
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regarding contributory negligence limited the jury’s consideration of Sorenson’s contributory negligence
only to counts that pertain to Sorenson. However, contributory negligence is not a defense, but is “only
one factor” for the jury to consider in determining whether defendant’s conduct caused Nicole Nye’s
death, People v Tims, 449 Mich 83, 99; 534 NW2d 675 (1995). Therefore, the court was not
required to instruct on a theory of contributory negligence unless defendant made a request, People v
Mills, 450 Mich 61, 80-81; 537 NW2d 909 (1995), modified on other grounds 450 Mich 1212; 539
NW2d 504 (1995), and defendant did not make that request.
The court is required to instruct the jury regarding the law applicable to the case and to fully and
fairly present the case to the jury in an understandable manner. People v Moore, 189 Mich App 315,
319; 472 NW2d 1 (1991). The court did instruct the jury more than once that defendant’s conduct
must be a substantial cause. Taken as a whole, the instructions did address the applicable law and did
fully and fairly present the case to the jury. Accordingly, there was no error and no manifest injustice.
II
Defendant next claims that the court erred in sentencing. Defendant alleges that the court relied
on erroneous information in reaching a sentence, and that the court imposed a disproportionately harsh
sentence. We review a sentence for abuse of discretion. People v Antolovich, 207 Mich App 714,
720; 525 NW2d 513 (1994). Defendant’s sentence was within the guidelines, and defendant has not
overcome the presumption that his sentence is not excessively severe or unfairly disparate. See People
v Poppa, 193 Mich App 184, 190; 483 NW2d 667 (1992). Even though defendant contends that the
court did not properly consider the facts in sentencing, the court did state the criteria it considered and
the facts supporting the sentence. See Id., 193 Mich App at 189-190. The court referred to
defendant’s prior record, his substance abuse problem, his poor prospects for rehabilitation, and the
circumstances leading to the incident, which included speeding, driving without insurance, driving on a
suspended license, and driving while impaired. There is no requirement that the court only consider the
facts that defendant favors. The record supports the court’s reasoning. In addition, defendant
incorrectly contends that the court did not consider his employment -- the record shows that it was
considered. In any event, the court’s reference to the guidelines alone is sufficient explanation for the
sentence when the sentence is within the guidelines. Poppa, 193 Mich App at 190.
Defendant also argues that his sentence was inconsistent with the jury’s verdict. Defendant
reasons that the jury necessarily concluded that his blood alcohol content was below .1 percent and that
he did not cause the accident because the jury convicted him of negligent homicide of Ann Marie
Sorenson, not involuntary manslaughter. Defendant’s contention is pure speculation; the jury could
have instead concluded that defendant’s impairment, even if it was below .1 percent, caused the
accident.
Affirmed.
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/s/ Henry William Saad
/s/ Maura D. Corrigan
/s/ Robert A. Benson
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