PEOPLE OF MI V BRIAN CONDRON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 26, 2001
Plaintiff-Appellee,
v
No. 217760
Oakland Circuit Court
LC No. 97-155548 FH
BRIAN CONDRON,
Defendant-Appellant.
Before: Sawyer, P.J., and Jansen and Gage, JJ.
PER CURIAM.
After a jury trial, defendant was convicted of operating a water vessel under the influence
of liquor and causing incapacitating injury, MCL 324.80176(5); MSA 13A.80176(5). The trial
court sentenced defendant to forty to sixty months’ imprisonment. Defendant appeals as of right.
We affirm.
Defendant first contends that the trial court erred in failing to grant his motion for a
directed verdict at the close of the prosecutor’s proofs. In reviewing a decision on a motion for
directed verdict, this Court reviews the record de novo and considers the evidence presented by
the prosecutor in the light most favorable to the prosecution to determine whether a rational trier
of fact could find that the essential elements of the crime charged were proved beyond a
reasonable doubt. People v Mayhew, 236 Mich App 112, 124; 600 NW2d 370 (1999).
Defendant claims that the prosecutor failed to present sufficient evidence, including the
testimony of a medical expert, that the victim suffered a “long-term incapacitating injury”. MCL
324.80176(5); MSA 13A.80176(5). “Long-term incapacitating injury” is defined as “an injury
that causes serious impairment of a body function.” MCL 324.80102(f); MSA 13A.80102(f).
Due to scheduling conflicts, the victim’s doctor could not testify concerning the extent of
the victim’s injuries. Without foundational testimony from the victim’s doctor, the trial court
refused to admit the doctor’s report describing the victim’s injuries. According to MRE 701,
however, the victim himself properly testified regarding the existence of several injuries he
suffered after the accident. Howard v Feld, 100 Mich App 271, 273; 298 NW2d 722 (1980)
(observing that “[a] lay witness generally may testify to something he knows and that does not
require expert testimony to establish, such as the existence of a physical injury”). The victim
testified, “I guess I was in a coma for like four or five days, I’m not for sure. I think it was five.”
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The victim stated that he underwent several surgeries at Pontiac Osteopathic Hospital, and that
he broke his neck and for more than three months had to wear a halo to immobilize his head and
neck. Doctors informed him that he suffered an incomplete spinal injury and that they were
unsure of his prognosis. At trial, the victim utilized a wheelchair, but stated that he could “get
around a little bit with a quad cane.” The victim asserted that he had difficulty moving his right
arm because some nerves were torn from his spinal cord, but could “grip some things”. The
victim additionally recounted that he lost feeling in at least one leg and could not detect bleeding
or temperature changes in parts of his body. From September 1, 1997 through February 13, 1998
the victim was admitted to St. Joseph’s Hospital. At the time of trial, approximately sixteen
months after the accident, the victim still had to catheterize himself to release bodily waste.
We reject defendant’s suggestion that as a matter of law the existence of a long-term
incapacitating injury could not be established absent expert medical testimony. This Court
previously declined to accept a defendant’s argument that expert testimony was necessary to
establish a “serious or aggravated injury” constituting an element of an aggravated assault
charge:
The defendant also argues that expert testimony is required on the question
of whether a serious or aggravated injury has been inflicted. We know of no such
requirement, and decline to imply one. Expert testimony is important if it can aid
the trier of fact in resolving complex issues beyond the experience of a person not
trained in a specific field. See MRE 702. We believe, however, that a jury is
normally capable of applying the statutory language involved in the instant case
without the need of expert testimony. [People v Brown, 97 Mich App 606, 611612; 296 NW2d 121 (1980).]
While some of the victim’s testimony constituted repetition of diagnoses of his conditions, we
similarly find that in this case the remainder of the victim’s appropriate testimony concerning his
many and continuing injuries and their effects on him,1 when considered in the light most
favorable to the prosecution, supported the jury’s determination beyond a reasonable doubt that
the victim suffered from a long-term incapacitating injury.2 We therefore conclude that the trial
court properly denied defendant’s motion for directed verdict. Mayhew, supra.3
1
We note that the jury also had the opportunity to observe the victim’s physical appearance,
condition and demeanor and determine whether the victim’s testimony regarding his injuries was
credible.
2
Defendant in his brief on appeal mentions other statutory requirements that a certain level of
injury exist. We do not here declare that the meaning of the phrase “serious impairment of a
body function” found in MCL 324.80102(f); MSA 13A.80102(f) should be interpreted in light of
similar phrases found in MCL 500.3135(7); MSA 24.13135(7) and MCL 257.625(5); MSA
9.2325(5), but note our finding that the victim’s testimony alone provided sufficient evidence
from which the jury could have found either definition of injury satisfied beyond a reasonable
doubt.
3
With respect to defendant’s further assertions in his brief on appeal that “several other factors
combined to prejudice [defendant] and require reversal of his conviction,” including that (a)
(continued…)
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Defendant next argues that the police department and prosecutor violated his due process
rights by failing to thoroughly investigate the accident. Defendant specifically argues that despite
the fact that the boat driver’s identity was at issue the police failed to examine the boat’s steering
wheel for fingerprints, and that the police failed to interview a key witness who arrived on the
scene shortly after the accident and administered first aid to defendant. Although defendant
failed to properly preserve this issue for appeal, People v Grant, 445 Mich 535, 546; 520 NW2d
123 (1994), we will briefly consider his arguments. Whether defendant’s right to due process
was violated is a question of law that we review de novo. People v Walker, 234 Mich App 299,
302; 593 NW2d 673 (1999).
With respect to fingerprinting the boat’s steering wheel, the sheriff’s deputy who
investigated the accident scene, a boat accident reconstruction expert, acknowledged that he did
not attempt to lift fingerprints from the wheel. He explained his inaction due to the facts that (1)
in his experience it is virtually impossible to fingerprint vessels involved in water-related
accidents, (2) it was unlikely that the wheel would have yielded usable fingerprints because it
was damaged after the boat landed on the ground upside down, and (3) even if fingerprints were
lifted they would not have dispositively established the identity of the driver at the time of the
accident because boats often are utilized by many people.4 Regarding the alleged failure to
interview an important witness who arrived on the scene shortly after the accident, defendant
himself called this witness to testify at trial, and we detect no significant exculpatory testimony
recounted by this witness that was not otherwise presented at trial.5 Because we find no
indication of any bad faith actions by the prosecutor or police or that any novel and significant
exculpatory evidence was lost or suppressed, we reject defendant’s allegations of a due process
violation. People v Johnson, 197 Mich App 362, 365; 494 NW2d 873 (1992).
Lastly, defendant asserts that several remarks made by the prosecutor during his closing
argument constituted prosecutorial misconduct. Because defendant did not object at trial to the
prosecutor’s comments, this Court will review defendant’s claim only for plain error. People v
(…continued)
“[t]he prosecutor promised the jury evidence of a life-long incapacitating injury,” then failed to
produce such evidence; (b) “the prosecutor assured the court and defense counsel that Dr.
Fergotas’ testimony was forthcoming despite his inability to locate the doctor,” but ultimately
failed to secure the doctor’s presence; and (c) the trial court’s instructions did not explain to the
jury the meaning of an incapacitating injury, we decline to consider these questions because
defendant failed to raise any of these in his statement of questions presented. Greathouse v
Rhodes, 242 Mich App 221, 240; 618 NW2d 106 (2000). Furthermore, at trial defendant voiced
no objection to the trial court’s jury instructions.
4
Defendant notes in his brief on appeal that “the presence of other prints would not be
dispositive on its own,” but suggests that other prints on the wheel “would be important in
conjunction with other facts” to “challenge the prosecution’s circumstantial evidence that only
[defendant] drove his boat.”
5
Defendant argues that the uninterviewed witness’ testimony was important because he “testified
about [defendant]’s incoherence and unconsciousness, helping the jury consider the existence
and reliability of [defendant]’s words.” Other trial testimony from the first witness on the scene
already established, however, that defendant had suffered a severe head injury.
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Schutte, 240 Mich App 713, 720; 613 NW2d 370 (2000), citing People v Carines, 460 Mich 750,
761-762; 597 NW2d 130 (1999). The test of prosecutorial misconduct is whether the defendant
was denied a fair and impartial trial. People v Reid, 233 Mich App 457, 466; 592 NW2d 767
(1999).
We reject defendant’s claims of prosecutorial misconduct. After reviewing the record,
we find that (1) the prosecutor did not improperly vouch for a witness’ credibility, but
appropriately argued from the evidence that certain witness testimony and certain inferences
arising therefrom appeared worthy of belief, People v Howard, 226 Mich App 528, 548; 575
NW2d 16 (1997); and (2) the prosecutor did not denigrate defense counsel and shift the burden
of proof to defendant, but appropriately responded to defense counsel’s argument and properly
commented on the validity of the defense theory that someone other than defendant drove the
boat at the time of the accident. People v Fields, 450 Mich 94, 115; 538 NW2d 356 (1995);
People v Kennebrew, 220 Mich App 601, 608; 560 NW2d 354 (1996).
Affirmed.
/s/ David H. Sawyer
/s/ Kathleen Jansen
/s/ Hilda R. Gage
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