PEOPLE OF MI V TERESA LEAANN KLEINE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 31, 2009
Plaintiff-Appellee,
v
No. 284221
St Joseph Circuit Court
LC No. 07-014438-FH
TERESA LEAANN KLEINE,
Defendant-Appellant.
Before: Wilder, P.J., and Meter and Servitto, JJ.
PER CURIAM.
Defendant appeals as of right her jury trial conviction of failure to stop at the scene of an
accident resulting in serious impairment of body function, MCL 257.617. We affirm. This
appeal has been decided without oral argument pursuant to MCR 7.214(E).
Frieda Borkholder and her children were riding in a horse and buggy driven by her
husband when defendant approached at a high rate of speed and sideswiped the buggy.
Defendant allegedly backed up slightly and put her head out the window, but then left the scene.
Frieda Borkholder’s ankle was broken in two places. She underwent surgery, spent two days in
the hospital, and needed six to eight weeks for her ankle to heal. She testified that she continued
to experience difficulty when using stairs.
During trial, defendant challenged whether the extent of Frieda’s injuries were so
extensive as to constitute serious impairment. MCL 257.58c. Defendant requested that the trial
court give a necessarily lesser included instruction on the offense of failure to stop at the scene of
an accident resulting in personal injury, MCL 257.617a. The trial court gave the instruction over
the prosecution’s objection, and read the following single instruction for both offenses:
The defendant is charged with failing to stop after an accident involving
serious impairment of a body function or personal injury. To prove this charge,
the Prosecutor must prove each of the following elements beyond a reasonable
doubt:
First: That the Defendant of the--was the driver of a motor vehicle.
Second: That the motor vehicle driven by the Defendant was involved in
an accident.
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Third: That the Defendant knew or had reason to know that she had been
involved in an accident on a public road, or on any property open to travel by the
public.
Fourth: That the accident resulted in a serious impairment of a body
function or personal injury to another.
Fifth: That the Defendant failed to immediately stop her motor vehicle at
the scene of the accident in order to render assistance and give information as
required by law. The requirement that the driver immediately stop means that the
driver must stop and park the car as soon as practical and reasonable under the
circumstances, and without obstructing traffic more than is necessary.
Serious impairment of a body function has been defined by the statute and
it includes, but is not limited, to more than one of the following:
Loss of a limb or loss of the use of a limb. Loss of a foot, hand, or finger,
or thumb, or loss of a foot--loss of use of a foot, hand, finger, or thumb. Loss of
an eye or ear, or loss of use of an eye or ear. Loss of [sic] substantial impairment
of a bodily function. Serious visible disfigurement. A comatose state that lasts
for more than three days. Measurable brain or mental impairment. A skull
fracture or other serious bone fracture. Subdural hemorrhage or subdural
hematoma, loss of an organ.
The trial court informed the jury that it could consider two crimes. The jury should first
consider the crime of leaving the scene of an accident involving a serious impairment of a body
function. If the jury agreed that defendant was guilty of that crime, the jury could stop its
discussions and return a verdict. If the jury could not agree, it was then to consider the lesser
crime of leaving the scene of an accident involving personal injury. The trial court informed the
jury that it could return to the more serious charge if it chose to do so. The trial court discussed
the verdict form and told the jury that it could return one of three verdicts: guilty of the greater
charge, guilty of the lesser charge, or not guilty. When asked whether counsel had any
objections to the instructions, defense counsel indicated that he did not.
Defendant now argues that this blended instruction, which is modeled on the recent
version of CJI2d 15.14, was insufficient under the circumstances to delineate the lesser included
offense of failure to stop causing personal injury from the more serious crime.
A party waives review of the propriety of jury instructions when he approves the
instructions at trial. People v Lueth, 253 Mich App 670, 688; 660 NW2d 322 (2002). Defendant
admits that counsel waived this claim of error by agreeing to the instructions as given, but argues
that defense counsel’s waiver of any claim of error constituted ineffective assistance of counsel.
In order to preserve the issue of ineffective assistance of counsel, a defendant must move
for a new trial or a Ginther hearing, People v Ginther, 390 Mich 436, 443; 212 NW2d 922
(1973), before the trial court. People v Cox, 268 Mich App 440, 453; 709 NW2d 152 (2005). If
the defendant fails to preserve the issue, appellate review is “limited to mistakes apparent on the
record.” Id. “If the record does not contain sufficient detail to support defendant’s ineffective
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assistance claim, then he has effectively waived the issue.” People v Davis, 250 Mich App 357,
368; 649 NW2d 94 (2002). Because defendant did not move for a new trial or a Ginther hearing
on this ground before the trial court, our review of his ineffective assistance claim is limited to
mistakes apparent on the record. “Whether a person has been denied effective assistance of
counsel is a mixed question of fact and constitutional law. A court first must find the facts, and
then must decide whether those facts constitute a violation of the defendant’s constitutional right
to effective assistance of counsel.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246
(2002). We review questions of constitutional law de novo. Id.
“Effective assistance of counsel is presumed, and [a] defendant bears a heavy burden of
proving otherwise.” People v McGhee, 268 Mich App 600, 625; 709 NW2d 595 (2005). “In
order to overcome this presumption, defendant must first show that counsel’s performance was
deficient as measured against an objective standard of reasonableness under the circumstances
and according to prevailing professional norms.” Id. “Second, defendant must show that the
deficiency was so prejudicial that he was deprived of a fair trial such that there is a reasonable
probability that but for counsel’s unprofessional errors the trial outcome would have been
different.” Id.
Trial counsel’s decision to not challenge the instruction did not constitute ineffective
assistance. We review jury instructions as a whole, rather than piecemeal. People v Henry, 239
Mich App 140, 151; 607 NW2d 767 (1999). Although an instruction may be somewhat
imperfect, “there is no error if the instructions fairly presented the issues to be tried and
sufficiently protected the defendant’s rights.” Id. Here, defendant argues that the initial blended
jury instruction was confusing, and could be read to allow the jury to find her guilty of the
greater charge even if the jury determined that Frieda Borkholder suffered a bodily injury that
was less severe than that necessary to support a conviction for the greater charge. However, the
trial court clearly delineated the two possible offenses when it stated that the jury could consider
two crimes, explained that one involved serious impairment of a body function and the other
involved only personal injury, and provided the definition of serious impairment. The jury
verdict form also clearly differentiated between the two offenses, and specifically described
leaving the scene of an accident involving personal injury as a lesser offense. As a whole, the
jury instructions fairly presented the issues to the jury. Thus, we find that trial counsel did not
provide objectively unreasonable representation when he did not object to the instructions. Nor
can defendant show that, had counsel requested further clarification of the jury instructions, the
outcome of the trial would likely have been different.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Patrick M. Meter
/s/ Deborah A. Servitto
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