PEOPLE OF MI V KYALL WILLIAM ALDRICH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
May 18, 2001
9:05 a.m.
Plaintiff-Appellee,
v
No. 216402
Saginaw Circuit Court
LC No. 98-015911-FC
KRIS MICHAEL ALDRICH,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 216403
Saginaw Circuit Court
LC No. 98-015912-FC
KYALL WILLIAM ALDRICH,
Defendant-Appellant.
Updated Copy
July 20, 2001
Before: M.J. Kelly, P.J., and Whitbeck and Collins, JJ.
M.J. KELLY, P.J.
Defendants Kris M. Aldrich and Kyall W. Aldrich were originally charged with seconddegree murder, MCL 750.317, and, alternatively, with involuntary manslaughter or manslaughter
committed with a motor vehicle, MCL 750.321. Following a jury trial, both defendants were
convicted of involuntary manslaughter. Kris Aldrich was sentenced as an habitual offender,
fourth offense,1 to fifteen to thirty years' imprisonment. Kyall Aldrich was sentenced as an
1
MCL 769.12.
-1-
habitual offender, third offense,2 to fifteen to thirty years' imprisonment. Defendants now appeal
as of right. Their appeals have been consolidated for review. We affirm.
I. Facts
Defendants' involuntary manslaughter convictions stem from a two-car collision that
occurred during a drag race between defendants, who are brothers,3 on the evening of May 6,
1998. The victim was a fifteen-year-old girl, Jennifer Fear, who was a passenger in Kris
Aldrich's vehicle at the time of the collision. The prosecutor's theory of the case was that
defendants picked up Jennifer, bought and consumed some whiskey, then went drag racing at
speeds up to one hundred miles an hour, when defendant Kris Aldrich, with Jennifer in his
vehicle, ran a stop sign and collided with another vehicle, causing Jennifer's death. Counsel for
defendant Kris Aldrich conceded that defendants were drinking and engaging in "horseplay,"
including exceeding the speed limit, but argued that any reckless driving had ended at the time of
the accident and that the accident was the result of brake failure. Defendant Kyall Aldrich also
claimed that any reckless driving had ceased before the accident.
At trial, many witnesses testified that they observed defendants drag racing down a twolane stretch of Roosevelt Road on May 6, 1998, at approximately 8:30 p.m. Defendants'
vehicles4 were racing side by side along Roosevelt Road, thereby occupying the whole roadway
including the lane reserved for oncoming traffic. Kris Aldrich's vehicle was occupying the lane
reserved for oncoming traffic. Witnesses indicated that the vehicles were traveling "extremely"
fast, at speeds approaching ninety miles an hour. Kris Aldrich's vehicle was observed ducking in
and out of the oncoming traffic lane to avoid colliding with vehicles traveling in the opposite
direction.
The vehicles approached the intersection of Roosevelt and Hemlock.5 There is a stop
sign at this intersection for vehicles traveling on Roosevelt Road; Hemlock has the right of way.
Witnesses testified that the drag race was ongoing as the vehicles approached the intersection.
Melissa Musick and her mother, Sherry Musick, were traveling along Hemlock Road
approaching the intersection at Roosevelt Road. As they passed through the intersection, Kris
Aldrich's Beretta failed to stop at the stop sign and collided with the Musicks' vehicle. The
Musicks' vehicle spun out of control "and ended up upside down in the ditch, on fire."6 Kris
2
MCL 769.11.
3
Kyall was twenty-one years old at the time of the incident in question. Kris, was twenty years
old.
4
Kris Aldrich was driving a blue Beretta and Kyall Aldrich was driving a red pickup truck.
5
This section of Roosevelt is gravel; Hemlock is paved.
6
Fortunately, onlookers were able to pull the Musicks from the burning vehicle. The Musicks
(continued…)
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Aldrich's vehicle ended up in the field alongside the roadway. Jennifer Fear, the passenger in
Kris Aldrich's vehicle, was killed in the accident and her body was found lying outside the
Beretta.
Although Kyall Aldrich denied drag racing and told police that he had been driving 1 1/2
miles behind his brother at the time of the accident, witnesses testified that defendants' vehicles
were still engaged in the drag race just before the accident. In fact, witness Nicholas Scoles
observed defendants' vehicles racing seconds before the accident occurred, just as the vehicles
approached the intersection of Hemlock and Roosevelt Roads. Melissa Musick, the driver of the
vehicle that collided with Kris Aldrich's vehicle, confirmed that in the seconds before the
accident, defendants' vehicles were speeding along the roadway, side by side, although she
admitted that Kyall Aldrich's vehicle did not stop at the stop sign.
Kris Aldrich told police at the scene that Jennifer had been driving his vehicle at the time
of the accident and that he was sitting in the back seat. He also told police that he could not
remember if he had been drag racing. Neither defendant could remember where they were going
when the accident occurred.
At trial, Kris Aldrich admitted that beginning around 7:00 p.m. on the night of the
incident in question, he, Kyall, and Jennifer had been drinking whiskey mixed with Pepsi. At
around 8:30 p.m., the three decided to go to Kyall's house. Kris and Jennifer took the Beretta,
with Kris driving, and Kyall drove the red pickup truck. According to Kris, he was driving on
Roosevelt at approximately fifty-five or sixty miles an hour. Kris testified that he attempted to
pass Kyall's red pickup truck, but pulled back in behind Kyall when another vehicle appeared.
Subsequently, Kyall slowed down to approximately twenty miles an hour and signaled for Kris to
pull alongside him, and that the two conversed about stopping at a convenience store. Kris stated
that he then "took off first and got in front of Kyall's car." Kris testified that as he approached the
intersection, at approximately fifty miles an hour, he started to slow down for a stop sign, but that
"the brake pedal went right to the floor and wasn't stopping no more." He then entered the
intersection and collided with the vehicle being driven by Melissa Musick.7
After hearing the above evidence, the jury convicted both defendants of involuntary
manslaughter. Defendants received fifteen- to thirty-year sentences. They appeal as of right.
(…continued)
were then transported to the hospital for treatment.
7
The prosecutor presented the rebuttal testimony of Gary Dudicz, an expert in the area of
automobile mechanics (including brake systems), who testified that he had examined the Beretta
and that the brakes should have been functioning properly at the time of the accident. Dudicz
also testified that the vehicle had an adequate supply of brake fluid, that his inspection turned up
no leaks, and that the brake pads were fairly new and in good condition.
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II. Prosecutorial Misconduct
A. Preservation of the Issue and Standard of Review
This Court reviews claims of prosecutorial misconduct case by case, examining the
remarks in context, to determine whether the defendant received a fair and impartial trial. People
v Bahoda, 448 Mich 261, 266-267; 531 NW2d 659 (1995). Concerning preserved issues of
prosecutorial misconduct, this Court evaluates the challenged conduct in context to determine if
the defendant was denied a fair and impartial trial. People v Truong (After Remand), 218 Mich
App 325, 336; 553 NW2d 692 (1996). Where a defendant fails to object to an alleged
prosecutorial impropriety, the issue is reviewed for plain error. People v Carines, 460 Mich 750,
752-753, 764; 597 NW2d 130 (1999); People v Schutte, 240 Mich App 713, 720; 613 NW2d 370
(2000). Thus, to avoid forfeiture of the issue, defendant must demonstrate plain error that
affected his substantial rights, i.e., that affected the outcome of the proceedings. Carines, supra
at 763-764; Schutte, supra at 720.
B. Presentation of Deputy Kevin Campbell's Testimony
Defendant Kyall Aldrich argues that it was improper for the prosecutor to present the
testimony of Deputy Kevin Campbell because the prosecutor should have known that Deputy
Campbell would present invalid information.8 Specifically, Kyall points to Deputy Campbell's
concession on cross-examination that certain ambiguities attended his speed calculations. Kyall
also points to the prosecutor's presentation of Sergeant William Brandt of the Michigan State
Police, whose opinions concerning speed contradicted those of Campbell. However, Kyall
withdrew his objection to the presentation of Deputy Campbell's testimony because he wanted to
refer to Deputy Campbell's speed calculations during closing argument.9 He has, therefore,
waived this claim of error on appeal. A defendant may not waive objection to an issue before the
trial court and then raise the issue as an error on appeal. People v Fetterley, 229 Mich App 511;
583 NW2d 199 (1998).
C. Prosecutor's Duty to Disclose Evidence
After trial had commenced in this matter, Sgt. Brandt generated a statistical report by
using the Win Crash computer program. The last page of the report contained an error message,
indicating that the results contained in the report were not valid. Sgt. Brandt never provided the
prosecutor with a copy of the invalid report.
8
Defendant Kris Aldrich does not challenge the prosecution's presentation of Deputy Campbell's
testimony on appeal.
9
During closing argument, counsel for Kyall Aldrich referred to Deputy Campbell's testimony in
arguing to the jury that the prosecution's case was weak.
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A prosecutor has a duty to "make timely disclosure to the defense of all evidence or
information known to the prosecutor that tends to negate the guilt of the accused or mitigates the
degree of the offense[.]" MRPC 3.8(d). There is no dispute in this case that any reports or test
results prepared for the case by law enforcement officers were subject to discovery. However,
Sgt. Brandt's attempt to generate an accurate report in this case was unsuccessful. There is no
dispute that the computer printout contained invalid test results and was therefore disregarded by
Sgt. Brandt. Hence, it seems the prosecutor's witness did not suppress material evidence.
Instead, he disregarded invalid evidence. In any event, we cannot see how defendants were
denied a fair trial by the prosecutor's failure to provide them with a report containing invalid
information.
D. Closing Argument
Defendants challenge the prosecutor's implication during closing argument that they had
sexual designs on the victim on the evening of the incident in question. Defendants did not
object to the prosecutor's remarks below. A review of the prosecutor's remarks, in context,
reveals that the prosecutor was merely summarizing the facts in evidence and encouraging the
jury to draw reasonable inferences from those facts. This was not improper. A prosecutor need
not confine argument to the "blandest of all possible terms," but has wide latitude and may argue
the evidence and all reasonable inferences from it. People v Marji, 180 Mich App 525, 538; 447
NW2d 835 (1989); Bahoda, supra at 282. Because the prosecutor's remarks were not improper,
defendants have failed to show plain error affecting their substantial rights. Carines, supra at
763-764.
III. Evidentiary Issues
A. Preservation of the Issue and Standard of Review
To preserve an evidentiary issue for review, a party opposing the admission of evidence
must object at trial and specify the same ground for objection that it asserts on appeal. MRE
103(a)(1); People v Grant, 445 Mich 535, 545, 553; 520 NW2d 123 (1994); People v Griffin,
235 Mich App 27, 44; 597 NW2d 176 (1999). On the basis of the objections made by defendants
at trial, it appears, unless indicated later in this opinion, that the evidentiary issues raised by
defendants are preserved for appellate review. The decision whether to admit evidence is within
the discretion of the trial court and will not be disturbed on appeal absent a clear abuse of
discretion. People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998), reh den 459 Mich 1203
(1998). An abuse of discretion is found only if an unprejudiced person, considering the facts on
which the trial court acted, would say that there was no excuse for the ruling made. People v
Snider, 239 Mich App 393, 419; 608 NW2d 502 (2000). A decision on a close evidentiary
question ordinarily cannot be an abuse of discretion. People v Sabin (After Remand), 463 Mich
43, 67; 614 NW2d 888 (2000).
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B. Photograph of the Victim and Evidence of the Musicks' Rescue
Defendants claim that the prosecutor's repeated reliance on the photograph of the
decedent and reference to the Musicks' burning vehicle and their rescue contributed nothing to
the jury's inquiry and served only to prejudice defendants.
At a pretrial hearing regarding the admissibility of evidence of the Musicks' burning
vehicle and evidence of heroic rescue efforts by onlookers that resulted in the Musicks being
pulled from their burning vehicle, the trial court ruled that the evidence was relevant because it
demonstrated the "force and violence" of the collision and could assist the jury in assessing
defendants' recklessness in the incident. The court additionally ruled that the probative value of
the evidence was not substantially outweighed by any possible prejudice. However, the court
cautioned the prosecutor against "overusing" the evidence.
Generally, all relevant evidence is admissible at trial. Starr, supra at 497. Evidence is
relevant if it has any tendency to make the existence of a fact that is of consequence to the action
more probable or less probable than it would be without the evidence. MRE 401; People v
Crawford, 458 Mich 376, 388; 582 NW2d 785 (1998). Under this broad definition, evidence is
admissible if it is helpful in throwing light on any material point. People v Kozlow, 38 Mich App
517, 524-525; 196 NW2d 792 (1972). However, even if relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative
evidence. Sabin, supra at 57-58.
We agree with the trial court that evidence regarding the condition of the Musicks'
vehicle was relevant to the jury's determination of facts at issue in this case such as defendants'
recklessness or carelessness and the speed of the vehicles at the time of the impact. Moreover,
defendants have not convinced us that the relevancy of the evidence was substantially
outweighed by any prejudicial effect or that they were prejudiced by the cumulative nature of the
evidence.
With regard to the evidence of the Musicks' rescue from the burning vehicle, a jury is
entitled to hear the "complete story" of the matter in issue. People v Sholl, 453 Mich 730, 742;
556 NW2d 851 (1996), reh den 454 Mich 1211 (1997); People v Delgado, 404 Mich 76, 83; 273
NW2d 395 (1978). It would have been perplexing to the jury to learn that a violent two-car
collision had occurred but not what became of the occupants of one of the vehicles. In any event,
defendants have not demonstrated that they were prejudiced by the admission of evidence, from
several sources, concerning the Musicks' rescue from their vehicle after the collision. This
evidence did not bear on defendants' guilt or innocence.
With regard to Kris Aldrich's unpreserved challenge to the admissibility of the
photographs of the victim and Kris' damaged vehicle, we have reviewed the photographs in
question and conclude that they are neither shocking nor inherently prejudicial. Nor does it
appear from the record that the photographs were offered with the intention of inflaming the jury.
People v Hall, 83 Mich App 632; 269 NW2d 476 (1978). The photographs were offered to aid
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witnesses in their description of the victim's condition at the accident scene as well as the
condition of Kris' vehicle after the collision, both matters that were relevant to physical facts.
Any prejudice resulting from the use of the photographs did not substantially outweigh their
probative value. MRE 403. It appears that the photographs would have aided the jury in
explaining and comprehending all circumstances of the incident. See People v Schmitz, 231
Mich App 521, 534; 586 NW2d 766 (1998). We find no error in the trial court's admission of the
challenged photographs.
IV. Admissibility of Blood Alcohol Test Results
A. Preservation of the Issue and Standard of Review
To preserve an evidentiary issue for review, a party opposing the admission of evidence
must object at trial and specify the same ground for objection that it asserts on appeal. MRE
103(a)(1); Grant, supra at 545, 553; Griffin, supra at 44. On the basis of the objections made by
defendants at trial, it appears unless indicated later in this opinion, that the evidentiary issues
raised by defendants are preserved for appellate review.10 A reviewing court may not disturb a
trial court's ruling at a suppression hearing unless that ruling is clearly erroneous. People v
Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). Where a trial court's decision concerned a
mixed question of fact and law, the court's findings are reviewed for clear error, while its
application of the law to the facts is reviewed de novo. People v Barrera, 451 Mich 261, 269;
547 NW2d 280 (1996). Where an evidentiary decision lies within the trial court's discretion, the
court's exercise of that discretion is reviewed for an abuse of discretion. Bahoda, supra at 288.
B. MCL 257.625a(6)(e)
Defendants raise various claims regarding the admissibility of their blood alcohol test
results, including claims of statutory construction involving MCL 257.625a(6)(e). The primary
rule of statutory construction is to ascertain and give effect to the intent of the Legislature.
People v Borchard-Ruhland, 460 Mich 278, 284; 597 NW2d 1 (1999). To determine the
Legislature's intent, we first examine the language of the statute. Id. "If the language of the
statute is unambiguous, the statute should be applied as written and judicial construction is not
permitted. However, if the statutory language is ambiguous, a court may go beyond the words of
the statute to determine the Legislature's intent." People v Oliver, 242 Mich App 92, 96; 617
NW2d 721 (2000).
To the extent that defendants claim that the results of their blood alcohol tests were
inadmissible because defendants were not under arrest at the time their blood alcohol levels were
10
Kris Aldrich moved to suppress the blood alcohol test results on the ground that there was a
delay between the accident and the blood alcohol test. Kyall Aldrich argued below that because
he was not involved in the accident in question, his blood alcohol test results were inadmissible
at trial.
-7-
tested, we reject that claim. Section 625a of the Vehicle Code, MCL 257.625a, reads in pertinent
part as follows:
(6) The following provisions apply with respect to chemical tests and
analysis of a person's blood . . .
* * *
(e) If, after an accident, the driver of a vehicle involved in the accident is
transported to a medical facility and a sample of the driver's blood is withdrawn at
that time for medical treatment, the results of a chemical analysis of that sample
are admissible in any civil or criminal proceeding to show the amount of alcohol
or presence of a controlled substance or both in the person's blood at the time
alleged, regardless of whether the person had been offered or had refused a
chemical test. The medical facility or person performing the chemical analysis
shall disclose the results of the analysis to a prosecuting attorney who requests the
results for use in a criminal prosecution[.]
Our Supreme Court recently ruled that "only persons who have been arrested fall within
the purview of the implied consent statute." Borchard-Ruhland, supra at 285, citing MCL
257.625c and 257.625a(6)(b). However, the Court was construing the provision of the statute
that sets forth the presumption of consent to testing, § 625c, and the provision that establishes the
notice rights of the suspect, subsection 625a(6)(b), both of which expressly concern only persons
who have been "arrested." In contrast, subsection 625a(6)(e) does not mention arrest, and it
provides for the admissibility of blood alcohol test results in any "civil or criminal proceeding,"
where the blood on which the test was run was drawn "for medical treatment" from a driver
"involved in" an accident. By its plain terms, therefore, subsection 6(e) concerns tests done on
blood drawn not for legal responsibility reasons, but for medical purposes, and is not limited to
those under arrest.
Next, defendants claim that their blood alcohol test results were inadmissible under
subsection 625a(6)(e) because the prosecutor failed to prove that the blood tests in the instant
case were conducted for medical treatment. Defendants failed to raise this issue below. Because
they failed to raise the issue at trial, this issue is not preserved for appellate review. People v
Morey, 230 Mich App 152, 163; 583 NW2d 907 (1998), aff 'd 461 Mich 325; 603 NW2d 250
(1999). Regardless, it appears from the testimony presented at trial that the medical procedures
performed on defendants, including the withdrawing of their blood, were done for medical
reasons.11 In any event, even if the trial court erred in admitting the defendants' blood alcohol
11
We note that Kris makes no argument concerning foundational requirements, or the alleged
lack thereof, or concerning the lapse of time between the accident and the blood alcohol test,
perhaps eschewing those lines of argument in light of People v Wager, 460 Mich 118; 594 NW2d
487 (1999), and People v Campbell, 236 Mich App 490; 601 NW2d 114 (1999). To the extent
(continued…)
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test results, any error in this regard was harmless in light of the other evidence presented to
indicate that defendants had been drinking before the collision, including Kris' own admission
that he and Kyall had been drinking whiskey before the crash, and the fact that legal intoxication
is not an element of the charges against defendants.
Finally, Kyall claims that because he was not "involved in" the accident, i.e., his vehicle
did not come into contact with the Musicks' vehicle, his blood alcohol tests were inadmissible
under subsection 625a(6)(e). A similar claim was rejected by this Court in Oliver, supra at 9698. In Oliver, the defendant, driving a Jeep Wagoneer, was pushing a small Honda driven by his
friend down the westbound lane of US-12. The defendant's Jeep would bump the Honda, which
would then coast along for awhile. When the Honda would slow down, the Jeep would again
bump the Honda. After being bumped by the Jeep, the Honda driver lost control of the Honda,
veered into the path of oncoming traffic, and stuck another vehicle, killing its driver. The
defendant stopped off the highway, put his head out of the window, looked back toward the
accident, and then drove off, hiding his Jeep behind a friend's shed. He was subsequently
discovered and charged with failure to stop at an accident involving serious injury, MCL
257.617.
On appeal, the defendant argued that he was not "involved in" the accident, as required by
subsection 617(1), "because his vehicle was not in contact with the Honda when the Honda
swerved onto the right shoulder immediately before it veered into the eastbound lane and struck
the decedent's vehicle." Oliver, supra at 96. This Court rejected the defendant's claim:
[W]e reject defendant's contention that a vehicle cannot be "involved in"
an accident if it does not strike or physically touch another automobile. There are
no reported cases in this state that construe the phrase "involved in" as it is used in
MCL 257.617(1); MSA 9.2317(1). Our construction of that phrase is governed by
the rules of statutory construction.
* * *
The phrase "involved in" is not defined in the statute. Therefore, we look
to a dictionary for its definition. The relevant dictionary definitions of "involved"
include "implicated," and "concerned in some affair, esp. in a way likely to cause
danger or unpleasantness." Random House Webster's College Dictionary (2d ed,
1997). According to the plain meaning of the term "involved," defendant's
conduct falls within MCL 257.617(1); MSA 9.2317(1). The prosecutor presented
(…continued)
that Kyall claims on appeal that his blood alcohol test was not performed within a reasonable
time, we note that our Supreme Court has recently ruled that for purposes of admitting the results
of blood alcohol tests performed on a driver, there is no requirement that such tests be given
within a reasonable time. Wager, supra at 122-124. The delay of approximately 3 1/2 hours
between the accident and the test bears on the weight of the evidence, not its admissibility.
-9-
evidence that defendant's Jeep pushed the Honda, which could not run on its own
power, down the highway at approximately fifty-seven miles an hour. The driver
of a vehicle traveling behind defendant's Jeep testified that he witnessed the Jeep
strike the rear bumper of the Honda just before the Honda began to veer off the
road and out of control. Alexander testified that it was the impact of defendant's
Jeep that caused him to begin to lose control of the Honda.
The evidence indicated that defendant clearly played a part in the accident
despite the fact that his vehicle did not strike or come into contact with another
vehicle. We conclude that defendant was "involved in" the accident because the
evidence demonstrated that he was implicated in or connected with the accident in
a logical or substantial manner . . . . Defendant need not have caused the accident
in order to have been "involved in" the accident. [Oliver, supra at 96-98 (citations
omitted).]
Although the Oliver Court construed the phrase "involved in" contained in another
provision of the Vehicle Code, the statute addressing the failure to stop at a serious injury
accident, MCL 257.617(1), the reasoning and analysis contained in Oliver applies with equal
force to the term "involved in" contained in subsection 625a(6)(e). We, therefore, adopt the
Oliver Court's analysis.12 Like the defendant in Oliver, Kyall Aldrich in this case clearly played a
part in the accident at issue despite the fact that his vehicle did not strike or come into contact
with the Musicks' vehicle. The prosecutor presented evidence to indicate that in the seconds
before the accident, defendants' vehicles continued to be engaged in a high-speed drag race. In
fact, in the seconds before the collision, defendants' vehicles were speeding along side by side
down Roosevelt Road, thereby occupying the whole roadway including the lane reserved for
oncoming traffic. Even though Kyall's vehicle did stop at the stop sign at the intersection of
Roosevelt and Hemlock Roads, he was involved in the accident because his conduct was
connected to the accident in a natural and logical manner. In fact, had defendants not been
12
We acknowledge the holding in Robinson v Detroit, 462 Mich 439, 456-457, 468; 613 NW2d
307 (2000), reh den 463 Mich 1211 (2000). In Robinson, a case involving liability for injuries
sustained as a result of a police chase of a fleeing vehicle, our Supreme Court construed the
motor vehicle exception to governmental immunity, MCL 691.1405. The motor vehicle
exception requires that a plaintiff 's injuries "result from" the negligent operation of a government
vehicle. The Robinson Court, without much elaboration, determined that the plaintiffs could not
satisfy the "resulting from" language of the statute "where the pursuing police vehicle did not hit
the fleeing car or otherwise physically force it off the road into another vehicle or object."
Robinson, supra at 456-457, 468. Robinson is distinguishable from the present case. The
Robinson decision narrowly construed the motor vehicle exception to governmental immunity
and involved police chases of fleeing vehicles and the issue of liability for injuries that resulted.
Here, the issue is whether, under the Vehicle Code, Kyall was "involved in" an accident even
though his vehicle did not come into contact with the Musicks' vehicle. For the reasons set forth
above, we believe that Kyall was "involved in" the accident. Oliver, supra at 96-98.
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engaged in a high-speed drag race, this accident would never have occurred. In light of the
Oliver decision, Kyall's claim that he was not involved in the accident must fail.
V. Directed Verdict
A. Preservation of The Issue and Standard of Review
At the close of the prosecution's case, defendants moved for directed verdicts on the
second-degree murder charges, thus preserving this issue for appellate review. When reviewing a
trial court's decision on a motion for a directed verdict, this Court reviews the record de novo to
determine whether the evidence presented by the prosecutor, viewed in the light most favorable
to the prosecutor, could persuade a rational trier of fact that the essential elements of the crime
charged were proved beyond a reasonable doubt. People v Mayhew, 236 Mich App 112, 124125; 600 NW2d 370 (1999).
B. Second-Degree Murder
The offense of second-degree murder consists of the following elements: "(1) a death, (2)
caused by an act of the defendant, (3) with malice, and (4) without justification or excuse." Id.,
quoting People v Goecke, 457 Mich 442, 463-464; 579 NW2d 868 (1998). Defendants claim
that there was insufficient evidence regarding the element of malice. The element of malice is
defined as "the intent to kill, the intent to cause great bodily harm, or the intent to do an act in
wanton and wilful disregard of the likelihood that the natural tendency of such behavior is to
cause death or great bodily harm." Id. at 464; Mayhew, supra at 125. Malice for second-degree
murder can be inferred from evidence that the defendant "intentionally set in motion a force
likely to cause death or great bodily harm." People v Djordjevic, 230 Mich App 459, 462; 584
NW2d 610 (1998). The offense of second-degree murder "does not require an actual intent to
harm or kill, but only the intent to do an act that is in obvious disregard of life-endangering
consequences." Mayhew, supra at 125. See also Goecke, supra at 466.
Here, there was evidence to indicate that defendants intentionally committed an act, drag
racing at very high speeds into an intersection while intoxicated, that was in disregard of lifeendangering consequences and that was in "wanton and wilful disregard of the likelihood that the
natural tendency of such behavior [was] to cause death or great bodily harm." Id. at 464;
Mayhew, supra at 125. See also People v Vasquez, 129 Mich App 691, 694; 341 NW2d 873
(1983). Although Kyall claims that he had ceased any reckless driving before the accident, the
prosecutor presented evidence to indicate that the drag race continued up until seconds before the
crash. It is the province of the jury to determine questions of fact and assess the credibility of
witnesses. People v Lemmon, 456 Mich 625, 637; 576 NW2d 129 (1998). Because there was
evidence to infer the element of malice with regard to both defendants, the question was one for
the jury. Mayhew, supra at 126.
In sum, viewing the evidence in a light most favorable to the prosecution, as we are
constrained to do in this context, we believe that the evidence was sufficient for a rational trier of
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fact to find that the essential elements of second-degree murder, including malice, were proved
beyond a reasonable doubt. Id.
-12-
VI. Jury Instructions
A. Preservation of The Issue and Standard of Review
We review jury instructions in their entirety to determine if error requiring reversal
occurred. People v Brown, 239 Mich App 735, 746; 610 NW2d 234 (2000). The instructions
must not be "'extracted piecemeal to establish error.'" Id., quoting People v Caulley, 197 Mich
App 177, 184; 494 NW2d 853 (1992). Even if the instructions are somewhat imperfect, reversal
is not required as long as they fairly presented the issues to be tried and sufficiently protected the
defendant's rights. Brown, supra at 746. Defendants' claims of instructional error are, for the
most part, preserved for appellate review. With regard to unpreserved claims of instructional
error, this Court reviews such claims for plain error that affected substantial rights. Carines,
supra at 761-764, 774; Snider, supra at 420.
B. Alleged Instructional Errors
Defendants first claim that the trial court should have given their requested, modified
abandonment instruction. We have reviewed the instructions in their entirety and conclude that
the instructions given by the trial court substantially covered the instruction requested by
defendants and the trial court's failure to give the abandonment instruction did not seriously
impair defendants' ability to effectively present a given defense. People v Moldenhauer, 210
Mich App 158, 159-160; 533 NW2d 9 (1995).
With regard to Kris' claim that because there was evidence that he failed to stop at the
stop sign because of brake failure, the trial court should have instructed the jury on intervening
cause. Kris did not request such an instruction below and has not shown that the trial court's
failure to give such an instruction amounted to plain error affecting Kris' substantial rights.
Carines, supra at 761-764, 774. With regard to Kyall's claim that the trial court erred in failing
to give his requested instruction on intervening cause, the instructions given adequately covered
the substance of the instruction requested by Kyall. The trial court's instruction that Kyall's mere
presence was not enough to implicate him in the crime, and that his responsibility for the victim's
death required that it have resulted from "common" unlawful activity accompanied by the
required intent element, covered the defense theory that Kyall was not participating in a drag race
at the time of the fatal collision.
Having reviewed the jury instructions in their entirety, we do not believe that Kyall was
prejudiced by the trial court's failure to instruct the jury on the uncharged offense of furnishing
alcohol to a minor.
VII. Sentencing
Lastly, Kris Aldrich argues that his sentence for involuntary manslaughter is excessive.
Provided that permissible factors are considered, appellate review of prison sentences is limited
to whether the sentencing court abused its discretion. People v Coles, 417 Mich 523, 550; 339
NW2d 440 (1983), overruled in part on other grounds, People v Milbourn, 435 Mich 630; 461
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NW2d 1 (1990). A sentencing court abuses its discretion when it violates the principle of
proportionality. A sentence must be proportionate to the seriousness of the crime and the
defendant's prior record. Milbourn, supra at 635-636, 654. The senseless crime in this case
resulted in the death of a fifteen-year-old girl. Defendant, therefore, committed a very serious
offense. Moreover, defendant had a rather extensive criminal history for a twenty-year-old man.
Under these circumstances, the sentence imposed for involuntary manslaughter, fifteen to thirty
years, is proportionate to the seriousness of the crime and to defendant's prior record.
VIII. Conclusion
Having found no error requiring reversal, we conclude that defendants' convictions and
sentences must be affirmed.
Collins, J., concurred.
/s/ Michael J. Kelly
/s/ Jeffrey G. Collins
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