PEOPLE OF MI V DEON CALVIN LARKINS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 7, 2010
Plaintiff-Appellant,
v
No. 292799
Wayne Circuit Court
LC No. 09-006223-FH
DEON CALVIN LARKINS,
Defendant-Appellee.
Before: TALBOT, P.J., and METER and DONOFRIO, JJ.
PER CURIAM.
The prosecution appeals as of right from an order dismissing negligent homicide charges
without prejudice against defendant. Because the circuit court did not err in finding that there
was insufficient evidence to support a bind over for negligent homicide, we affirm. This appeal
has been decided without oral argument pursuant to MCR 7.214(E).
Defendant was a driver involved in a motor accident in the area of I-96 and I-94 on
October 30, 2008. The accident resulted in a fatality and defendant was charged with negligent
homicide, a violation of MCL 750.324. To prove negligent homicide, the prosecution must
show: (1) defendant was operating a motor vehicle; (2) defendant was operating the vehicle at an
immoderate rate of speed or in a careless, reckless, or negligent manner; (3) defendant’s
negligence was a substantial cause of an accident resulting in injuries to the victim; and, (4)
those injuries caused the victim’s death. People v Tims, 449 Mich 83, 95, 99, 103-104; 534
NW2d 675 (1995). There is no need for the prosecution to prove that defendant’s acts were
intentional, reckless, or grossly negligent; rather, proof of ordinary negligence is sufficient to
allow for prosecution under the statute. People v Clark, 171 Mich App 656, 659; 431 NW2d 88
(1988). Ordinary negligence is the failure to take reasonable care under the circumstances.
People v Traughber, 432 Mich 208, 217; 439 NW2d 231 (1989).
Probable cause that the defendant has committed the crime is established by evidence
sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a
reasonable belief of the defendant’s guilt. People v Yost, 468 Mich 122, 126; 659 NW2d 604
(2003); People v Henderson, 282 Mich App 307, 312; 765 NW2d 619 (2009). To establish that
a crime has been committed, a prosecutor need not prove each element beyond a reasonable
doubt, but he must present some evidence of each element. Yost, 468 Mich at 126; Henderson,
282 Mich App at 312. “Circumstantial evidence and reasonable inferences from the evidence
can be sufficient.” Henderson, 282 Mich App at 312. Although the magistrate may weigh the
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credibility of the witnesses, if the evidence conflicts or raises a reasonable doubt, the defendant
should be bound over for resolution of the questions by the trier of fact. Yost, 468 Mich at 128;
People v Goecke, 457 Mich 442, 469-470; 579 NW2d 868 (1998); Henderson, 282 Mich App at
312.
The prosecution’s evidence was lacking at the preliminary examination. All that was
shown was that a multi-vehicle accident occurred and another driver, Brian Melville, died.
There was no evidence concerning defendant’s alleged negligence. Defendant told Officer
Gregory Primeau that he was traveling behind the victim’s vehicle, which was traveling behind a
tractor-trailer. Officer Primeau reported the following about his discussion with defendant:
“The tanker was stopped and the vehicle that was directly in front of [defendant’s] vehicle ran
into the back of the tanker. After that, he said as a result of that first crash or first initial
collision, he said that he struck the other vehicle.” Contrary to the prosecution’s argument on
appeal, defendant did not “say anything about brakes.” Defendant was not sure how fast he was
driving but claimed to have three vehicle lengths between his car and the victim’s car.
Officer Lamarr Johnson admitted that he was not an accident reconstructionist and that
the only specialized training he received was a two-week course in accident investigation,
including estimating the parties’ speeds. Johnson, however, offered absolutely no evidence
regarding defendant’s rate of speed at the time of the accident. He readily admitted that he did
not know. Still, based on hearsay statements he received from the truck driver, Johnson made
the ultimate conclusion that the accident resulted from defendant’s vehicle rear-ending the
victim’s vehicle and forcing it into the tractor-trailer. Johnson concluded, “[t]here were two
impacts but the semi truck driver says only one impact, leaving me to believe that Mr. Larkins
ran into Mr. Melville, pushing him into the semi.” Johnson testified that there was no physical
evidence in terms of skid marks that defendant made any attempt to brake.
These bold conclusions are troubling, especially in light of the absence of any eyewitness
testimony. For whatever reason, the truck driver was not called as a witness. There were no
other witnesses presented who may have been traveling in the area and could have testified about
the degree of care defendant was using while driving. It is undisputed that the tractor-trailer was
at a complete stop in front of the victim’s vehicle. However, there was no definitive answer
regarding whether Melville’s vehicle was at a complete stop behind the tractor-trailer, as the
prosecution would allege, or whether it was moving and ran into the tractor-trailer first, as
defendant contends. Melville’s vehicle suffered extensive damage to both the front and rear of
the vehicle. Further complicating the situation was the fact that Melville was not wearing a seat
belt. The medical examiner could not say whether the first impact would have caused the
victim’s injuries, or the second. In any event, Officer Johnson’s testimony regarding the cause of
the accident was insufficient to bind defendant over on a charge of negligent homicide. Defense
counsel asked Officer Johnson:
Q. Without any interview and without looking at the ground or anything on the
ground, just by looking at the accident, you can’t tell which vehicle hit which
vehicle first, could you?
A. No.
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Beyond the fact that there was an accident and a dead driver there was simply no
evidence to conclude that defendant was driving at an immoderate rate of speed or in a negligent
manner. The prosecutor asks the court to draw too many inferences and assume too much. The
prosecution’s duty was to present at least a modicum of evidence with regard to each element of
negligent homicide, which it failed to do. For these reasons, the district court judge abused her
discretion in binding defendant over on the charge. The circuit court properly dismissed the
case.
Affirmed.
/s/ Patrick M. Meter
/s/ Pat M. Donofrio
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