PEOPLE OF MI V DEBORAH MARIE ALLEN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 14, 2010
Plaintiff-Appellee,
v
No. 292295
Wayne Circuit Court
LC No. 09-001753-FH
DEBORAH MARIE ALLEN,
Defendant-Appellant.
Before: OWENS, P.J., and WHITBECK and FORT HOOD, JJ.
PER CURIAM.
Defendant was convicted, following a bench trial, of operating while impaired, MCL
257.625(3), third offense, MCL 257.625(11). She was sentenced to two years of probation and
30 days in jail. Defendant appeals as of right, and we affirm.
A pedestrian was walking on a sidewalk near a park with his headphones on when he had
an “eerie feeling” that he was being watched. He turned and looked behind him to see a vehicle
driven by defendant traveling on the sidewalk. He moved out of the way, and defendant drove
by him. Defendant drove her vehicle into a construction zone where the vehicle became lodged
on a curb with the front tires spinning. The pedestrian told defendant to place the vehicle in park
and asked her if she had been drinking. She responded that she had not been drinking alcohol,
but she had taken some cough medicine. Defendant said that a relative would help tow her
vehicle and that the police did not need to be called. Police received a radio bulletin of a single
car crash and found defendant approximately three blocks from the scene of the accident. The
pedestrian identified defendant as the driver of the vehicle that was stuck in the construction
zone.
A police officer who apprehended defendant testified that she exhibited signs of being
under the influence of intoxicating liquor or a controlled substance, which included slurred
speech, unsteady gait, and failed field sobriety tests. When interviewed by a police officer near
the scene, defendant stated that she had taken cough medicine with codeine. However,
defendant later reported that she was a limited sighted person who mistakenly took her
granddaughter’s dental sedation medication, Midazolam, instead of cough medicine. Following
a bench trial, defendant was acquitted of the charged crime of operating while intoxicated, MCL
257.625(1), but was convicted of the offense of operating while impaired (OWI), MCL
257.625(3), third offense, MCL 257.625(11). When finding defendant guilty of the lesser
offense, the trial court seemingly gave credence to defendant’s testimony that she had mistakenly
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ingested the sedation medication. However, the trial court held that defendant chose to drive
home from cheerleading practice knowing that she was experiencing ill effects from medication,
regardless of the type of medication ingested.
Defendant filed a motion for new trial, asserting that the trial court should have acquitted
defendant of the driving while intoxicated offense upon finding that defendant mistakenly
ingested Midazolam. The trial court denied the motion for new trial. In denying the motion, the
trial court made clear that defendant’s testimony was not credible. The trial judge stated that he
acknowledged defendant’s characterization of the ingestion as a mistake, but he found that “she
deliberately took the substance.”
Defendant first alleges that the trial court was required to acquit defendant upon
accepting defendant’s testimony that she accidentally ingested Midazolam. We disagree. A
challenge to the sufficiency of the evidence is reviewed de novo. People v Martin, 271 Mich
App 280, 340; 721 NW2d 815 (2006). When reviewing a claim of insufficient evidence, this
Court reviews the record in a light most favorable to the prosecution to determine whether a
rational trier of fact could find that the essential elements of the crime were proven beyond a
reasonable doubt. In re Contempt of Henry, 282 Mich App 656, 677; 765 NW2d 44 (2009).
Appellate review of a challenge to the sufficiency of the evidence is deferential. People v
Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). The reviewing court must draw all
reasonable inferences and examine credibility issues in support of the jury verdict. Id. When
assessing a challenge to the sufficiency of the evidence, the trier of fact, not the appellate court,
determines what inferences may be fairly drawn from the evidence and the weight to be accorded
those inferences. People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). This Court
must not interfere with the jury’s role as the sole judge of the facts when reviewing the evidence.
People v Meshell, 265 Mich App 616, 619; 696 NW2d 754 (2005). A trial court’s factual
findings may not be set aside unless they are clearly erroneous. People v Lanzo Constr Co, 272
Mich App 470, 473; 726 NW2d 746 (2006). “A finding is clearly erroneous when, although
there is evidence to support it, the reviewing court is left with a definite and firm conviction that
a mistake has been made.” Id.
A defendant commits OWI by driving when the defendant’s ability to drive was so
weakened or reduced by the consumption of intoxicating liquor, a controlled substance, or a
combination of the two, that defendant drove with less ability than would an ordinary, careful
and prudent driver. MCL 257.625(3); Oxendine v Secretary of State, 237 Mich App 346, 354;
602 NW2d 847 (1999). The weakening or reduction in the ability to drive must be visible to an
ordinary, observant person. Oxendine, 237 Mich App at 354. In the present case, a pedestrian
walking on the sidewalk near the park turned around to find defendant driving her vehicle on the
sidewalk behind him. He moved out of the way and observed defendant drive into a construction
zone where her vehicle became lodged on a curb with the wheels spinning. A blood test revealed
the presence of Midazolam. Additionally, in her own testimony, defendant acknowledged that
she was not feeling well, but chose to drive home anyway. There was sufficient evidence to
support the conviction for OWI. Defendant admitted that she consumed a controlled substance,
and she operated her vehicle with less ability than an ordinary, prudent driver when she drove on
a park sidewalk instead of the designated roadway.
Defendant contends that she mistakenly took the Midazolam instead of cough syrup
because she was not wearing her glasses. However, the offense at issue punishes the weakened
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or reduction in the ability to drive because of the consumption of a controlled substance. The
statute at issue places no qualification on the circumstances surrounding the consumption of the
intoxicating liquor or controlled substance.1 More importantly, the trial court expressly stated
that it did not believe that defendant’s consumption of the controlled substance was accidental.
Rather, the trial court held that it merely acknowledged defendant’s testimony of mistake, but the
consumption of the granddaughter’s sedation medication was conscious and deliberate.
Therefore, defendant’s reliance on the trial court’s factual findings is misplaced.2
Next, defendant alleges that the OWI statute violates due process rights if an individual is
unable to “raise the defense of accident or involuntary ingestion and lack of knowledge of having
ingested a controlled substance.” Appellate courts do not unnecessarily decide constitutional
issues. People v Riley, 465 Mich 442, 447; 636 NW2d 514 (2001). Judicial review of
constitutional questions must not be decided if a case may be disposed of on other grounds. J &
J Constr Co v Bricklayers & Allied Craftsmen, Local 1, 468 Mich 722, 733-734; 664 NW2d 728
(2003). The trier of fact determines the weight of the evidence and the credibility of the
witnesses. People v Williams, 268 Mich App 416, 419; 707 NW2d 624 (2005). We defer to the
trial court’s credibility determinations, and any conflicts in the evidence must be resolved in
favor of the prosecution. People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).
It is unnecessary for us to address the constitutional issue raised here because the facts do
not support the claimed denial of due process of law. The trial court considered the claim of
accidental or involuntary ingestion, but concluded that the testimony offered in support of that
theory was not credible. Defendant’s challenge to the constitutionality of the statute based on
mistake is contrary to the factual findings of the trial court. Because defendant cannot support
the factual predicate to challenge the statute, this issue is without merit.
1
The text of MCL 257.625(3) provides, in relevant part: “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 when, due to the consumption of alcoholic liquor, a controlled substance, or a combination
of alcoholic liquor and a controlled substance, the person’s ability to operate the vehicle is
visibly impaired.”
2
Defendant contends that the prosecutor had to prove that she knowingly took a controlled
substance and made the decision to drive after knowingly ingesting the controlled substance,
relying on People v Derror, 475 Mich 316; 715 NW2d 822 (2006), overruled in part by People v
Feezel, 486 Mich 184; 783 NW2d 67 (2010), and People v Schaefer, 473 Mich 418; 703 NW2d
774 (2005) overruled in part by Derror, 475 Mich at 334. However, the case law relied upon by
defendant addressed the crimes of operating a motor vehicle causing death or serious impairment
of a body function and operating a motor vehicle with the presence of a schedule 1 controlled
substance in the body, MCL 257.625(4), (5), and (8), crimes not at issue here. The plain
language of the operating while impaired statute, MCL 257.625(3), does not contain any
qualification regarding the knowing consumption of alcoholic liquor or a controlled substance.
Irrespective of the language of the statute, the prosecutor presented police testimony wherein
defendant admitted that she took cough medicine with codeine, a controlled substance.
Therefore, the requirement that defendant seeks to impose was satisfied by the proofs presented
at trial, and this claim of error is without merit.
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Lastly, defendant contends that trial counsel was ineffective for failing to call defendant’s
daughter as a witness and failed to introduce defendant’s vision records into evidence. We
disagree. To establish a claim of ineffective assistance of counsel, a defendant must demonstrate
that counsel’s performance was objectively unreasonable compared to prevailing professional
norms, and that, but for counsel’s errors, a different outcome reasonably would have resulted.
People v McCauley, 287 Mich App 158, 162; 782 NW2d 520 (2010). The outcome of the
proceedings would not be different when the claimed deficiency involves the failure to seek
admission of cumulative evidence. See People v Hill, 257 Mich App 126, 140; 667 NW2d 78
(2003). In the present case, defendant testified that she was a limited sighted person because she
was legally blind in her left eye and that she mistakenly took the wrong medication. The
proposed evidence was cumulative to the evidence admitted at trial and did not impact the
outcome.
Affirmed.
/s/ Donald S. Owens
/s/ William C. Whitbeck
/s/ Karen M. Fort Hood
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