PEOPLE OF MI V ROY ALEXANDER CHARLES

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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED May 18, 2004 Plaintiff-Appellee, v No. 246034 Oakland Circuit Court LC No. 01-177229-FH ROY ALEXANDER CHARLES, Defendant-Appellant. Before: Cooper, P.J., and Griffin and Borrello, JJ. PER CURIAM. Defendant appeals as of right from his jury trial convictions of operating a motor vehicle while under the influence of intoxicating liquor (OUIL) causing death, MCL 257.625(4), and operating a motor vehicle while license suspended causing death, MCL 257.904(4). Defendant was sentenced to 4 to 15 years in prison on each conviction. We affirm. This case arises out of an accident on Interstate 75. At the time of the accident, defendant was intoxicated and asleep behind the wheel of his car which was motionless in the right lane of the interstate. The victim, who was approaching defendant’s car, attempted to go around the stopped car, when a second driver, himself intoxicated, struck the victim’s car from behind and killed her. Defendant first argues that the trial court abused its discretion in denying defendant’s motion to quash the charge of operating a motor vehicle while license suspended causing death. We disagree. A circuit court’s decision to deny a motion to quash is reviewed de novo to determine if the district court abused its discretion in binding over the defendant for trial in circuit court. People v Libbett, 251 Mich App 353, 357; 650 NW2d 407 (2002). Nonetheless, “a magistrate’s erroneous conclusion that sufficient evidence was presented at the preliminary examination is rendered harmless by the presentation at trial of sufficient evidence to convict. Id., citing People v Meadows, 175 Mich App 355, 359; 437 NW2d 405 (1989); see also People v Hall, 435 Mich 599, 604; 460 NW2d 520 (1990). In pertinent part, MCL 257.904 reads as follows: -1- (1) A person whose operator’s or chauffeur’s license or registration certificate has been suspended or revoked and who has been notified as provided in section 212 of that suspension or revocation, whose application for license has been denied, or who has never applied for a license, shall not operate a motor vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of motor vehicles, within this state. *** (4) A person who operates a motor vehicle in violation of subsection (1) and who, by operation of that motor vehicle, causes the death of another person is guilty of a felony punishable by imprisonment for not more than 15 years or a fine of not less than $2,500.00 or more than $10,000.00, or both. This subsection does not apply to a person whose operator’s or chauffeur’s license was suspended because that person failed to answer a citation or comply with an order or judgment pursuant to section 321a. [Id.] Defendant argues that the trial court improperly denied his motion to quash where his license was suspended for failure to comply with court judgment (FCJ) and failure to appear in court (FAC), which suspensions are exceptions to MCL 257.904(4). But defendant’s certified driving record from the Secretary of State indicated that defendant’s license was suspended on the date of the accident, April 26, 2000, as a result of a conviction for operating a motor vehicle while impaired by liquor. The suspension was originally imposed from March 24, 1998, through June 21, 1998, and carried the notation that the suspension would continue until payment of a reinstatement fee. Defendant accumulated additional suspensions for: 1) FCJ on a city of Detroit ticket for prohibited turn; 2) FAC on a city of Detroit ticket for failure to display a valid license; and 3) FCJ on a ticket for registration and/or plate violation. The driving record noted an additional suspension from a February 26, 2000 failure to display a valid driver’s license. That additional suspension was from April 13, 2000 to May 13, 2000. While defendant’s license was also suspended for defendant’s failure to pay the reinstatement fee from his February 16, 1998, conviction of operating a motor vehicle while impaired by liquor, we need not consider that issue to decide this case.1 Because the February 26, 2000 suspension was still in effect on the date of the accident, the trial court did not abuse its discretion in denying defendant’s motion to quash. Thus, we find that the certified copy of defendant’s driving record admitted at trial was sufficient to support defendant’s conviction for operating a motor vehicle while license suspended causing death. See generally People v Hunter, 466 Mich 1, 6; 643 NW2d 218 (2002); People v Herndon, 246 Mich App 371, 415; 633 NW2d 376 (2001). 1 Defendant argues that failure to pay a reinstatement fee is the equivalent of FAC/FCJ for purposes of the exclusions set forth in MCL 257.904(4). Because we find that defendant was also suspended by his failure to display a valid driver’s license on February 26, 2000, we need not address this issue. -2- Next, we find that there was sufficient evidence that defendant was operating a motor vehicle at the time of the accident to support his conviction of OUIL causing death and driving while license suspended causing death. MCL 257.625 reads, in pertinent part: (1) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place, open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if either of the following applies: (a) The person is under the influence of intoxicating liquor, a controlled substance, or a combination of intoxicating liquor and a controlled substance. (b) The person has an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. *** (4) A person, whether licensed or not, who operates a motor vehicle in violation of subsection (1) or (3) and by the operation of that motor vehicle causes the death of another person is guilty of a crime as follows: (a) Except as provided in subdivision (b), the person is guilty of a felony punishable by imprisonment for not more than 15 years or a fine of not less than $2,500.00 or more than $10,000.00, or both. [Id.]. MCL 257.904 reads, in pertinent part: (1) A person whose operator’s . . . license . . . has been suspended . . . and who has been notified as provided in section 212 of that suspension . . . shall not operate a motor vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles . . . . *** (4) A person who operates a motor vehicle in violation of subsection (1) and who, by operation of that motor vehicle, causes the death of another person is guilty of a felony punishable by imprisonment for not more than 15 years or a fine of not less than $2,500.00 or more than $10,000.00, or both. [Id.] Defendant asserts that because he was not driving at the time of the accident and because there was no evidence that the vehicle was operable, he was not operating a motor vehicle within the meaning of the statute. The test for what constitutes operating a motor vehicle is set forth in People v Wood, 450 Mich 399; 538 NW2d 351 (1995), which states that the definition of “operating” should take into account the danger the OUIL statute seeks to prevent: the collision of a car being operated by a person under the influence of liquor with persons or property. The Wood Court also stated: -3- Once a person using a motor vehicle as a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of causing a collision, such a person continues to operate it until the vehicle is returned to a position posing no such risk. [Id. at 405] The Wood Court specifically overruled People v Pomeroy (On Rehearing), 419 Mich 441; 355 NW2d 98 (1984), to the extent that Pomeroy held that a person asleep in a motionless car cannot be held to be operating a vehicle. Wood concerned a man found unconscious in his van at a McDonald’s drive-through window with the engine running, the transmission in drive, and the defendant’s foot on the brake. The Supreme Court found that because the defendant had put the vehicle in motion and in a position posing a significant risk of collision and had not returned the vehicle to a position of safety, he was operating the vehicle for the purposes of the OUIL statute even though he was asleep. Wood, supra at 405. In this case, by passing out in his running car in the right lane of I-75, defendant put his car in a position posing significant risk of collision and defendant had not removed his car from this position of danger at the time of the accident. Therefore, there was sufficient evidence that defendant was operating the vehicle within the meaning of MCL 257.625(4) and MCL 257.904(4). Defendant further argues that his car stalled on the freeway and that there was no proof that his car was operable. We note that there was testimony that the engine of defendant’s car stopped working when defendant’s wife drove the vehicle before the accident. We further note that defendant worked on the car after the accident to replace the alternator. However, at trial, defendant himself denied that his vehicle was stopped for mechanical reasons. He insisted that he stopped his car to help with the accident. Further, a witness to the accident testified that defendant’s car was running and that the dash and headlights were on when the witness looked in the car immediately after the accident. Neither the evidence nor defendant’s testimony support defendant’s argument that his car was inoperable. Defendant also asserts that there was insufficient evidence of causation to support his conviction for OUIL causing death. Defendant argues that a second driver’s decision to drive drunk was an intervening and superseding cause of the victim’s death. In People v Lardie, 452 Mich 231, 251; 551 NW2d 656 (1996), our Supreme Court held that driving while intoxicated is gross negligence as a matter of law. The Court also held that causation is determined by establishing that the defendant’s intoxicated driving was a substantial cause of the victim’s death. Id. at 259-260. Causation is a question of fact for the jury. Id. at 267. Further, to convict a defendant of a criminal negligence offense, the prosecutor must prove beyond a reasonable doubt that the defendant’s conduct was a cause in fact and a proximate or legal cause of the death. People v Tims, 449 Mich 83, 95; 534 NW2d 675 (1995). The negligent act of a third party is not a defense but is only one factor to be considered in ascertaining whether the defendant’s negligence caused the victim’s death. Id. at 99. The prosecutor presented sufficient evidence at trial to support a finding by the jury that defendant’s decision to drive drunk substantially contributed to the victim’s death. His falling asleep in his car due to intoxication and his failure to move the car out of traffic on I-75 set up the series of foreseeable events which followed. A car, without its lights on, stopped on a major freeway, will cause a traffic backup, and it is foreseeable that someone may not be able to stop in time to avoid an accident due to inattention, faulty equipment, or intoxication. If defendant had not been asleep in the right lane of I-75, the victim would not have died. The second driver’s -4- behavior did not absolve defendant of responsibility where defendant was the substantial cause of the victim’s death. See Lardie, supra at 259-260. Moreover, we find that the trial court did not err in failing to instruct the jury with CJI2d 16.15 regarding causation. Claims of instructional error are reviewed de novo. People v Hall, 249 Mich App 262, 269; 643 NW2d 253 (2002), on rem 256 Mich App 674 (2003). Jury instructions are to be read as a whole rather than extracted piecemeal to establish error. People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001). Even if somewhat imperfect, instructions do not create error if they fairly present the issues to be tried and sufficiently protect the defendant’s rights. Id. The instructions must include all elements of the crime charged and must not exclude consideration of material issues, defenses, and theories for which there is evidence in support. People v Canales, 243 Mich App 571, 574; 624 NW2d 439 (2000). The trial court’s instruction on causation, that the jury must find that defendant’s intoxicated driving was a substantial cause of the victim’s death, was legally accurate according to the legal standard set forth in Lardie, supra at 259-260. Defendant argues that the trial court’s instruction did not fully present the defense that the second driver’s intoxicated driving was an intervening cause that absolved defendant of responsibility. But in People v Bailey, 451 Mich 657, 676-678; 549 NW2d 325, on rem 218 Mich App 645 (1996), our Supreme Court stated 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.” The evidence adduced at trial showed that there were two causes of harm to the victim: defendant’s motionless car in the right lane of traffic and the second driver’s inability to stop in time to avoid hitting the victim. While defendant was free to argue that the second driver’s drunk driving was primarily responsible for the victim’s death and that defendant’s drunk driving was not a substantial cause, there was no evidence to support an instruction that the second driver was an intervening and superseding cause. The instructions fully and fairly presented the issues to be tried. Defendant next claims that the trial court erred in failing to instruct the jury that defendant’s failure to submit to a breath test may be considered only to show that a test was offered and not as evidence of defendant’s guilt. While we find that the failure to give this instruction constituted error, People v McDonald, 201 Mich App 270; 505 NW2d 903 (1993), this error did not result in a miscarriage of justice where defendant did not contest the fact that he was intoxicated on the night of the accident but only disputed the element of causation. People v Rodriguez, 463 Mich 466, 473-474; 620 NW2d 13 (2000); People v McDaniel, 256 Mich App 165, 170; 662 NW2d 101, lv in abeyance 668 NW2d 909 (2003). Finally, we find that the trial court did not abuse its discretion in admitting evidence of defendant’s prior conviction of operating a motor vehicle while impaired by liquor. People v Katt, 468 Mich 272, 278; 662 NW2d 12 (2003). Defendant’s certified driving record, which showed that defendant had been convicted of operating a motor vehicle while impaired by liquor, was not admitted as evidence of defendant’s character to show that he acted in conformity therewith on the date of the accident, and therefore, did not violate MRE 404(b). The prior conviction was admitted for the proper purpose of establishing that defendant’s license was suspended at the time of the accident. Defendant’s denial that his license was suspended for any reason other than failure to comply with a court judgment or failure to appear in court put the matter at issue and made the fact that his license was suspended for this prior conviction relevant -5- and admissible under MRE 401. Further, the admission of the prior conviction did not result in unfair prejudice to defendant where defendant did not dispute that he had been drinking on the night of the accident or that he might have been drunk, but contested only the causation element of the offense. Affirmed. /s/ Jessica R. Cooper /s/ Richard Allen Griffin /s/ Stephen L. Borrello -6-

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