PEOPLE OF MI V LEE LAWRENCE CALLON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
April 15, 2003
9:15 a.m.
Plaintiff-Appellee,
v
No. 234421
Oakland Circuit Court
LC No. 1999-169408-FH
LEE LAWRENCE CALLON,
Defendant-Appellant.
Updated Copy
May 23, 2003
Before: Markey, P.J., and Smolenski and Meter, JJ.
PER CURIAM.
Defendant Lee L. Callon appeals by right his conviction by a jury of operating a vehicle
under the influence of intoxicating liquor or while having a blood alcohol content of 0.10 grams
or more per 100 milliliters of blood (OUIL/UBAL), MCL 257.625(1). Defendant was sentenced
to two years probation, with 273 days in jail, as a third-time offender, MCL 257.625(8)(c), but
the trial court stayed the sentence and granted defendant bond pending appeal. We affirm.
I. THE BASIC FACTS
The facts of the present case are simple. Defendant was stopped on October 9, 1999, by
Farmington Hills Police Officer Matthew Parsons for erratic driving and speeding. Defendant
was arrested for OUIL after an investigation that included the administration of field sobriety
tests. When defendant did not take an offered breath test, Parsons obtained a search warrant for
his blood. Parsons transported defendant to Botsford Hospital where Daniel Quinn, a hospital
phlebotomist, executed the search warrant in Parsons' presence, drawing two vials of defendant's
blood that Parsons sealed in a Michigan State Police blood-urine test kit and mailed to the
Michigan State Police crime lab. 1
Kimberly Dailey, a Michigan State Police forensic scientist, testified that as a forensic
scientist she analyzes blood and urine for the presence of drugs and alcohol. After the trial court
accepted Dailey as an expert in determining blood alcohol content, she testified that she
1
Quinn also drew a third vial of blood from defendant but it was not provided to the police.
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conducted various tests on the blood sample the police seized from defendant, obtaining a result
of 0.16 grams of alcohol per 100 milliliters of blood.
II. THE EX POST FACTO CHALLENGE
Defendant first argues that 1998 PA 350, effective October 1, 1999, which included
impaired-driving convictions in the definition of "prior conviction" that may be used to enhance a
conviction of OUIL/UBAL to a felony, operates as an ex post facto law. Interpretation of
constitutional provisions and statutory construction are both questions of law we review de novo.
People v Sierb, 456 Mich 519, 522; 581 NW2d 219 (1998). We conclude that defendant's
argument has no merit because the legal consequences of 1998 PA 350 attached to defendant
only as a result of acts committed by defendant after the effective date of the statute. Carmell v
Texas, 529 US 513, 519-520; 120 S Ct 1620; 146 L Ed 2d 577 (2000); People v Harvey, 174
Mich App 58, 61; 435 NW2d 456 (1989).
Before his arrest on October 9, 1999, defendant had been convicted of impaired driving2
on April 6, 1993, and of operating with an unlawful blood alcohol level on May 25, 1995. After
his conviction of OUIL/UBAL, defendant was subject to MCL 257.625(8)(c), which provides in
part, "[i]f a person is convicted of violating subsection (1), all of the following apply: . . . (c) If
the violation occurs within 10 years of 2 or more prior convictions, the person is guilty of a
felony . . . ." Before October 1, 1999, a prior conviction for impaired driving could not be used
to enhance a conviction for OUIL/UBAL, MCL 257.625(6)(f), as amended by 1991 PA 98.
Rather, the conviction could only be used to enhance a subsequent conviction of impaired driving
from a ninety-day misdemeanor to a one-year misdemeanor, MCL 257.625(10), as amended by
1991 PA 98. Defendant argues that 1998 PA 350, effective October 1, 1999, operates as an ex
post facto law because it modified the definition of "prior conviction" to include a prior
conviction of impaired driving under MCL 257.625(3) for purposes of enhancing a subsequent
conviction of OUIL/UBAL, MCL 257.625(1), to a felony conviction, MCL 257.625(8)(c). The
statute now provides, in part:
(23) . . . as used in this section, "prior conviction" means a conviction for
any of the following, whether under a law of this state, a local ordinance
substantially corresponding to a law of this state, or a law of another state
substantially corresponding to a law of this state:
2
At the time of the instant offense, and each of defendant's prior convictions, MCL 257.625(3)
prohibited operating a vehicle while "the person's ability to operate the vehicle is visibly
impaired" due to consumption of intoxicating liquor, a controlled substance, or a combination
thereof. Before 1991, the offense of impaired driving was found in MCL 257.625b. See People
v Pomeroy (On Rehearing), 419 Mich 441, 446; 355 NW2d 98 (1984), overruled in part People v
Wood, 450 Mich 399, 405; 538 NW2d 351 (1995).
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(a) . . . a violation or attempted violation of subsection (1), (3), (4), (5),
(6), or (7), section 625m, former section 625(1) or (2), or former section 625b.
[MCL 257.625(23), as amended by 1998 PA 350.]
Ex post facto laws are prohibited by both the Michigan Constitution, Const 1963, art 1, §
10 ("no bill of attainder, ex post facto law or law impairing the obligation of contract shall be
enacted"), and United States Constitution, US Const, art I, § 10 ("no state shall . . . pass any Bill
of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts . . . ."). Michigan
does not interpret its constitutional provision more expansively than its federal counterpart.
Attorney General v Pub Service Comm, 249 Mich App 424, 434; 642 NW2d 691 (2002); People
v Pennington, 240 Mich App 188, 191 n 1; 610 NW2d 608 (2000). Both ex post facto clauses
are designed to secure substantial personal rights against arbitrary and oppressive legislation,
People v Russo, 439 Mich 584, 592; 487 NW2d 698 (1992); Pennington, supra, and to ensure
fair notice that conduct is criminal, People v Stevenson, 416 Mich 383, 396; 331 NW2d 143
(1982); People v Davis, 181 Mich App 354, 357; 448 NW2d 842 (1989).
The seminal case interpreting the federal Ex Post Facto Clause is Calder v Bull, 3 US
386, 390; 1 L Ed 648 (1798), in which Justice Chase described four categories of ex post facto
laws. The Supreme Court recently reaffirmed these four categories in Carmell, supra, quoting
Justice Chase's opinion in Calder, supra, as follow:
"I will state what laws I consider ex post facto laws, within the words and
the intent of the prohibition. 1st. Every law that makes an action done before the
passing of the law, and which was innocent when done, criminal; and punishes
such action. 2d. Every law that aggravates a crime, or makes it greater than it
was, when committed. 3d. Every law that changes the punishment, and inflicts a
greater punishment, than the law annexed to the crime, when committed. 4th.
Every law that alters the legal rules of evidence, and receives less, or different,
testimony, than the law required at the time of the commission of the offence, in
order to convict the offender." [Carmell, supra at 522, quoting Calder, supra at
390 (emphasis in original).]
See also Collins v Youngblood, 497 US 37, 42, 49; 110 S Ct 2715; 111 L Ed 2d 30 (1990)
(finding departures from Justice Chase's original understanding of the Ex Post Facto Clause to be
unjustified), and Stevenson, supra at 396 (finding that In re Hoffman, 382 Mich 66, 71 n 1; 168
NW2d 229 (1969), adopted Justice Chase's definition of ex post facto laws by reference). All ex
post facto laws share two elements: (1) they attach legal consequences to acts before their
effective date, and (2) they work to the disadvantage of the defendant. Weaver v Graham, 450
US 24, 29; 101 S Ct 960; 67 L Ed 2d 17 (1981); People v Slocum, 213 Mich App 239, 243; 539
NW2d 572 (1995).
Defendant first argues the amended definition of "prior conviction" is an ex post facto
law within the meaning of the second Calder category, a "law that aggravates a crime, or makes
it greater than it was, when committed," and the third Calder category, a "law that changes the
punishment, and inflicts a greater punishment, than the law annexed to the crime, when
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committed." Defendant's argument fails. "The critical question [for an ex post facto violation] is
whether the law changes the legal consequences of acts completed before its effective date."
Carmell, supra at 520, quoting Weaver, supra at 31. Here, the amended statute did not attach
legal consequences to defendant's prior impaired-driving conviction, but attached legal
consequences to defendant's future conduct of driving under the influence or with an unlawful
blood alcohol level. "'[R]ecidivist statutes . . . do not change the penalty imposed for the earlier
conviction.'" People v Reichenbach, 459 Mich 109, 124-125; 587 NW2d 1 (1998), quoting
Nichols v United States, 511 US 738, 747; 114 S Ct 1921; 128 L Ed 2d 745 (1994). See also
People v Tice, 220 Mich App 47, 51; 558 NW2d 245 (1996) (holding that MCL 750.224f
prohibiting possession of a firearm by a felon was not an ex post facto law when applied to the
defendant whose felony conviction occurred before the effective date of the statute, because
punishment was assessed for conduct committed after the effective date of the statute), and
Harvey, supra at 61 (no ex post facto violation occurred by applying the parental kidnapping
statute, MCL 750.350a, to the defendant's retention of a child in violation of a divorce decree for
more than twenty-four hours after the effective date of the new statute).
Similarly, defendant's argument that his impaired-driving conviction is an element of
OUIL/UBAL, third offense, must also fail. First, defendant's reliance on People v Bewersdorf,
438 Mich 55, 68; 475 NW2d 231 (1991), is misplaced because in that case our Supreme Court
addressed MCL 257.625 as it existed before its amendment by 1991 PA 98, which made the
existence of prior convictions only part of a sentence-enhancement scheme. See People v
Weatherholt, 214 Mich App 507, 511-512; 543 NW2d 35 (1995) (conflict-resolution panel), and
People v Fish (On Second Remand), 220 Mich App 569; 560 NW2d 76 (1996). Second, the
conduct for which defendant is being punished is driving while intoxicated or with an unlawful
blood alcohol level after having fair notice that the statute had been amended to permit
enhancement of an OUIL/UBAL conviction with a prior impaired-driving conviction.
Defendant's argument, in essence, is that the quantum of evidence necessary to convict of
OUIL/UBAL, third offense (the elements), was lessened by the amendment (the fourth Calder
category). However, the lesser evidentiary burden applies only to future conduct and, therefore,
does not violate the Ex Post Facto Clause. Carmell, supra at 519.
Moreover, our Supreme Court has rejected a similar ex post facto challenge to a statutory
amendment that permitted enhancement with a prior conviction not previously included in the
definition of a prior offense. In People v Miller, 357 Mich 400, 402; 98 NW2d 524 (1959), the
defendant was charged with violating MCL 257.625 by driving in a drunken state on February
23, 1957. The defendant was sentenced as a second-time offender because a 1954 amendment
added violations of local ordinances substantially similar to the Motor Vehicle Code to the
definition of second or subsequent conviction, thus permitting the defendant's 1949 cityordinance conviction for drunken driving to elevate his 1957 conviction to a second offense.
Miller, supra at 409-410. Our Supreme Court rejected the defendant's ex post facto challenge,
opining:
Heavier penalties for a second offense are well known to the law. They
are in no manner ex post facto, nor do such amendments as we have before use
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[sic] have a retroactive effect. It is the subsequent offense that is punished more
harshly, not the first. [Id. at 410.]
Similar ex post facto challenges to habitual-offender statutes have been rejected by
analogy. People v Palm, 245 Mich 396, 402-403; 223 NW 67 (1929). See also In re Brazel, 293
Mich 632, 636-637; 292 NW 664 (1940) (use of convictions obtained before the adoption of the
habitual-offender act did not offend the Ex Post Facto Clause), and to the same effect, Gryger v
Burke, 334 US 728, 732; 68 S Ct 1256; 92 L Ed 1683 (1948) (reviewing Pennsylvania's habitualoffender act). Simply put, there is no retroactive application of the law where a prior conviction
is used to enhance the penalty for a new offense committed after the effective date of the statute.
Therefore, there was no violation of the Ex Post Facto Clauses of the Michigan or United States
Constitutions in this case.
III. THE SEARCH-WARRANT CHALLENGE
Next, defendant argues that the trial court erred by not suppressing the blood-test results
because defendant's blood was not drawn by "a licensed physician, or an individual operating
under the delegation of a licensed physician" as required by the search warrant, which
incorporated MCL 257.625a(6)(c). We disagree. Ordinarily, a trial court's ruling on a motion to
suppress evidence is reviewed with deference and will not to be disturbed unless clearly
erroneous, People v Hamilton, 465 Mich 526, 529; 638 NW2d 92 (2002), but where admissibility
depends on a question of law, our review is de novo, id. at 529-530; People v Stevens (After
Remand), 460 Mich 626, 631; 597 NW2d 53 (1999). Clear error exists where the reviewing
court is left with a definite and firm conviction that a mistake has been made. People v Parker,
230 Mich App 337, 339; 584 NW2d 336 (1998).
After defendant was arrested for OUIL, he refused Officer Parsons' request to take a
breath test, so Parsons obtained a search warrant for defendant's blood. Defendant does not
contest that probable cause existed both for his arrest and the issuance of the search warrant,
which provided: "it is further ordered that the said (blood/urine) sample be taken, pursuant to
MCLA 257.625a(6)(c) at BOTSFORD hospital." The referenced statute provides:
A sample or specimen of urine or breath shall be taken and collected in a
reasonable manner. Only a licensed physician, or an individual operating under
the delegation of a licensed physician under section 16215 of the public health
code, 1978 PA 368, MCL 333.16215, qualified to withdraw blood and acting in a
medical environment, may withdraw blood at a peace officer's request to
determine the amount of alcohol or presence of a controlled substance or both in
the person's blood, as provided in this subsection. Liability for a crime or civil
damages predicated on the act of withdrawing or analyzing blood and related
procedures does not attach to a licensed physician or individual operating under
the delegation of a licensed physician who withdraws or analyzes blood or assists
in the withdrawal or analysis in accordance with this act unless the withdrawal or
analysis is performed in a negligent manner. [MCL 257.625a(6)(c).]
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Defendant moved in the trial court to suppress the blood-test results, claiming that
defendant's blood was not drawn by a licensed physician or individual delegated by a licensed
physician in compliance with MCL 257.625a(6)(c). In rejecting defendant's motion, the trial
court reasoned:
Although the technician testified that no doctor told him to withdraw
Defendant's blood, it is clear that there was a doctor present in the room when
Defendant's blood was drawn and that the doctor signed off on the medical record.
Taking blood samples falls within the job description of a medical technician.
Further, the fact that the doctor was present and signed the record supports
delegation and supervision. Verbal delegation is not required by the statute.
Defendant's argument fails for several reasons. First, defendant refused a chemical test
offered pursuant to MCL 257.625a(6); instead, his blood was obtained pursuant to a search
warrant as authorized by MCL 257.625d(1). Therefore, MCL 257.625a(6)(c), the impliedconsent statute, does not govern admissibility of the test results. People v Snyder, 181 Mich App
768, 770; 449 NW2d 703 (1989); People v Hempstead, 144 Mich App 348, 352-353; 375 NW2d
445 (1985). See also People v Borchard-Ruhland, 460 Mich 278, 285; 597 NW2d 1 (1999)
(because the defendant was not under arrest, the implied-consent statute was not implicated).
Constitutional principles govern the admissibility of test results from a blood sample obtained by
consent. See Manko v Root, 190 Mich App 702, 704-705; 476 NW2d 776 (1991) (the impliedconsent statute is inapplicable to blood seized pursuant to a search warrant). Therefore, the rules
of evidence, as limited by constitutional principles, govern the admissibility of blood-test results
obtained under a search warrant. Borchard-Ruhland, supra at 293; People v Campbell, 236
Mich App 490, 503-504; 601 NW2d 114 (1999). Because defendant does not argue that the
search warrant was unsupported by probable cause or otherwise suffered from a constitutional
deficiency, and because the alleged deviations from MCL 257.625a(6)(c) do not implicate the
relevancy or reliability of the blood-test results, exclusion of the evidence was not required.
People v Fosnaugh, 248 Mich App 444, 450; 639 NW2d 587 (2001); People v Jenne, 168 Mich
App 518, 522; 425 NW2d 116 (1988).
Second, even if MCL 257.625a(6)(c) applied to this case because of its incorporation in
the search warrant, the trial court did not err by concluding it had not been violated. The statute
requires that blood be drawn only by "a licensed physician, or an individual operating under the
delegation of a licensed physician" under MCL 333.16215, which authorizes licensed physicians
to delegate selected acts, tasks, or functions to individuals who are qualified by education,
training, or experience to perform the acts, tasks, or functions within the scope of the practice of
the licensee's profession and that will be performed under the licensee's supervision. The Public
Health Code defines "supervision" as requiring the licensee to be continuously available directly
or through electronic means, to regularly review, consult, and educate the supervised individual,
and further requires that procedures and a drug protocol be established. MCL 333.16109. Thus,
the statute does not require direct supervision by a licensed physician of the qualified person to
whom the task of drawing blood has been delegated, nor does the statute require that a licensed
physician specifically delegate an individual to draw blood in each individual case. Rather, the
statute permits delegation of "acts, tasks or functions," in this case the function of drawing blood,
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the task of phlebotomy. This interpretation is consistent with the plain language of the statute,
Borchard-Ruhland, supra at 284, and with the ordinary definition of "delegation." The Random
House Webster's College Dictionary (1997) defines "delegation" as "the state of being
delegated," and "delegate," as "to commit (powers, functions, etc.) to another as agent."
In this case, there was ample evidence from which the trial court could conclude that
Daniel Quinn, the phlebotomist on duty in the emergency room of Botsford Hospital, was
"operating under the delegation of a licensed physician" when he withdrew blood from
defendant. A doctor was present in the emergency room of the hospital when Officer Parsons
arrived and presented the search warrant. After the doctor directed Parsons and defendant to a
room, Quinn drew defendant's blood. Quinn's testimony established that he had been employed
by the hospital for several years and regularly engaged in assisting patient care, including acting
as a phlebotomist on numerous occasions. Further, one doctor dictated and signed a report
concerning the blood draw. Nothing in the statute requires that a physician specifically directed
Quinn to draw defendant's blood, only that he be delegated to perform that task. The trial court
did not clearly err by ruling that the statute had not been violated. Jenne, supra at 521.
In summary, defendant's blood was drawn pursuant to a valid search warrant, and the
statutory provisions regarding implied consent are inapplicable. However, even if MCL
257.625a6(c) applied to this case, the trial court did not clearly err by finding that it had been
complied with, because the statute does not require verbal direction or immediate supervision of
phlebotomists delegated to withdraw blood. Finally, the alleged statutory violation does not
implicate the reliability or relevancy of the blood testing performed in this case, and, therefore,
the evidence was properly admitted. People v Wager, 460 Mich 118, 126; 594 NW2d 487
(1999); Fosnaugh, supra at 450.
IV. AMENDMENT TO THE PROSECUTOR'S WITNESS LIST
Next, defendant argues that the trial court abused its discretion when it permitted the
prosecutor to amend her trial witness list during the course of opening statements to add as a trial
witness Kimberly Dailey, the state police laboratory technician who tested defendant's blood.
The trial court's decision to permit the prosecutor to add or delete witnesses to be called at trial is
reviewed for an abuse of discretion, People v Burwick, 450 Mich 281, 291; 537 NW2d 813
(1995); People v Herndon, 246 Mich App 371, 402; 633 NW2d 376 (2001). An abuse of
discretion is found when the trial court's decision is so grossly contrary to fact and logic that it
evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias, or when
an unprejudiced person, considering the facts on which the trial court acted, would say that there
was no justification or excuse for the ruling, People v Gadomski, 232 Mich App 24, 32-33; 592
NW2d 75 (1998). We conclude that the trial court did not abuse its discretion by allowing the
late endorsement of a critical prosecution witness where the witness was known to the defense,
had been subjected to cross-examination at the preliminary examination, and where no
continuance was requested and no unfair prejudice resulted to defendant. MCL 767.40a(4);
Herndon, supra at 403; Gadomski, supra.
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There is no question that the prosecutor violated both MCL 767.40a(1), "[t]he
prosecuting attorney shall attach to the filed information a list of all witnesses known to the
prosecuting attorney who might be called at trial and all res gestae witnesses known to the
prosecuting attorney or investigating law enforcement officers," and MCL 767.40a(3), "[n]ot less
than 30 days before the trial, the prosecuting attorney shall send to the defendant or his or her
attorney a list of the witnesses the prosecuting attorney intends to produce at trial." However, the
Legislature established a statutory scheme whereby the prosecutor is required to provide early
notice to the accused of potential witnesses, Burwick, supra at 288-289, and reasonable
assistance to produce witnesses upon request, id. at 289; MCL 767.40a(5). See also Gadomski,
supra at 35-36 ("The prosecution's duty under the statute is to provide notice of known witnesses
and reasonable assistance to locate witnesses on a defendant's request."), and People v Koonce,
466 Mich 515, 523; 648 NW2d 153 (2002) (The prosecutor's statutory duty to provide
"reasonable assistance" applies even to a witness alleged to be an accomplice.) Here, the
underlying purpose of the statute, notice to the accused of potential witnesses, was satisfied
because Dailey's identity was disclosed through the toxicology report the prosecutor furnished
the defense, and the substance of her testimony was discovered through direct testimony and
cross-examination at the preliminary examination.
Whether the Legislature intended a statutory violation like that in the present case to be a
bar to the admission of relevant evidence is a question of legislative intent, Burwick, supra at
287. The answer, found in the plain language of the statute, is no, id.; Koonce, supra at 518.
The statute clearly vests the trial courts of this state with the discretion to permit the prosecution
to amend its witness list at any time. Burwick, supra at 289, 291. "The prosecuting attorney may
add or delete from the list of witnesses he or she intends to call at trial at any time upon leave of
the court and for good cause shown or by stipulation of the parties." MCL 767.40a(4). The trial
court did not abuse its discretion by finding "good cause" for granting leave to the prosecutor to
amend her notice of witnesses based on "inadvertence" of the prosecutor to list Dailey, a witness
critical to the prosecutor's case. An unprejudiced person considering the facts on which the trial
court acted would be unable to say there was no justification or excuse for the ruling. Gadomski,
supra at 33. Mere negligence of the prosecutor is not the type of egregious case for which the
extreme sanction of precluding relevant evidence is reserved. Burwick, supra at 294.
Moreover, to establish that the trial court abused its discretion, defendant must
demonstrate that the court's ruling resulted in prejudice. People v Williams, 188 Mich App 54,
59-60; 469 NW2d 4 (1991). The record here fails to establish any unfair prejudice to the
defense. Defense counsel's assertion that he would have subjected the seized blood to DNA
testing to verify its authenticity as defendant's blood is specious. Counsel indicated at the
preliminary examination that the defense intended to test the seized blood, pursued discovery to
obtain the blood sample for that purpose, and did not contradict the prosecutor's averment that a
vial of the seized blood was furnished to an independent expert at defense counsel's request.
Further, because the statute permits a prosecutor to file his trial witness list thirty days before
trial, and permits amendment on leave of the trial court at any time for good cause, defense
counsel could not rely on the prosecutor's negligence to preclude testimony of a known, essential
prosecution witness. Rather, the record indicates that by waiting to object until after the jury was
sworn and the prosecutor started her opening statement, defense counsel was engaging in the
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"gamesmanship" that MCL 767.40a was designed to preclude. Burwick, supra at 290. In sum,
the trial court did not abuse its discretion by finding good cause to permit the prosecutor to
amend her witness list, and defendant has not demonstrated unfair prejudice that would warrant a
new trial. MCL 767.40a(4); Herndon, supra at 403.
V. PROSECUTORIAL MISCONDUCT
Defendant asserts that the prosecutor improperly argued to the jury that he could have
performed his own testing of the blood tested by the police to verify whether it was his, and that
the prosecutor's closing argument denied him a fair trial by shifting the burden of proof to him.
We find that defendant failed to preserve this issue by making a timely, contemporaneous
objection and request for a curative instruction. Instead, defendant waited until the trial court had
completed its instructions to the jury, and then moved for a mistrial. Review of alleged
prosecutorial misconduct is precluded unless the defendant timely and specifically objects,
except when an objection could not have cured the error, or a failure to review the issue would
result in a miscarriage of justice. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557
(1994); People v Kelly, 231 Mich App 627, 638; 588 NW2d 480 (1998). Because the alleged
error was not preserved by a contemporaneous objection and a request for a curative instruction,
appellate review is for plain (outcome-determinative) error. People v Watson, 245 Mich App
572, 586; 629 NW2d 411 (2001); People v Schutte, 240 Mich App 713, 720; 613 NW2d 370
(2000). Reversal is warranted only when plain error resulted in the conviction of an actually
innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial
proceedings. People v Carines, 460 Mich 750, 763, 774; 597 NW2d 130 (1999); Schutte, supra
at 720. Further, we cannot find error requiring reversal where a curative instruction could have
alleviated any prejudicial effect. Watson, supra; Schutte, supra at 721.
When reviewing a claim of prosecutorial misconduct, this Court must examine the
pertinent portion of the record and evaluate a prosecutor's remarks in context. People v Bahoda,
448 Mich 261, 267; 531 NW2d 659 (1995); People v Noble, 238 Mich App 647, 660; 608 NW2d
123 (1999). Further, the propriety of a prosecutor's remarks will depend upon the particular facts
of each case. People v Johnson, 187 Mich App 621, 625; 468 NW2d 307 (1991). In addition, a
prosecutor's comments must be read as a whole and evaluated in light of defense arguments and
the relationship they bear to the evidence admitted at trial. Schutte, supra at 721. Furthermore,
otherwise improper remarks by the prosecutor might not require reversal if they respond to issues
raised by the defense. People v Duncan, 402 Mich 1, 16; 260 NW2d 58 (1977); Schutte, supra at
721. Although a prosecutor may not argue a fact to the jury that is not supported by evidence, a
prosecutor is free to argue the evidence and any reasonable inferences that may arise from the
evidence. Bahoda, supra at 282; Schutte, supra at 721.
In the instant case, the prosecutor's argument that the blood in the possession of the police
was available to defendant for purposes of independent testing, while legally and factually
accurate, was nonetheless unsupported by evidence adduced at trial. However, a timely objection
and cautionary instruction could have cured any possible prejudice from the prosecutor's
comments. Kelly, supra at 638; People v Rivera, 216 Mich App 648, 651-652; 550 NW2d 593
(1996). Moreover, the trial judge properly instructed the jury regarding the presumption of
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innocence and burden of proof, and further instructed the jury that the attorneys' statements were
not evidence, and that "[y]ou should only accept things that an attorney said that are supported by
the evidence or by your own common sense and general knowledge." Thus, the trial court's
instructions dispelled any prejudice arising from the prosecutor's comment, Bahoda, supra at
281; People v Green, 228 Mich App 684, 693; 580 NW2d 444 (1998), and defendant received a
fair and impartial trial, Watson, supra at 586.
Defendant's argument that the prosecutor's statements shifted the burden of proof is
without merit. The prosecutor merely argued that the evidence proved defendant's guilt beyond a
reasonable doubt despite defendant's exculpatory version of events. People v Nowack, 462 Mich
392, 400; 614 NW2d 78 (2000). A prosecutor's argument that inculpatory evidence is undisputed
does not constitute improper comment. People v Perry, 218 Mich App 520, 538; 554 NW2d 362
(1996). Here, the prosecutor did not shift the burden of proof; she merely attacked the credibility
of a theory defendant advanced at trial that there was a mistake made in the custody or testing of
the blood seized by the police. People v Fields, 450 Mich 94, 107, 115; 538 NW2d 356 (1995).
Finally, even if the comments by the prosecutor were prejudicial, reversal is not
warranted because the alleged error was forfeited and did not result in the conviction of an
actually innocent defendant, or seriously affect the fairness, integrity, or public reputation of
judicial proceedings independent of defendant's innocence. Carines, supra at 763-764; Schutte,
supra at 720.
VI. PROOF OF DEFENDANT'S PRIOR CONVICTIONS
Finally, defendant argues that the trial court erred by sentencing him for felony OUIL
because the court did not find by a preponderance of evidence that he had prior convictions.
Defendant contends, therefore, that his conviction must be set aside and that he be resentenced
for misdemeanor OUIL. We disagree. Defendant has failed to preserve this issue by objecting at
or before sentencing to the accuracy of his prior convictions as alleged in the information (and
presumed to be included in the presentence report). MCR 6.429(C); MCL 771.14(6); People v
McCrady, 244 Mich App 27, 32; 624 NW2d 761 (2000); People v Bailey (On Remand), 218
Mich App 645, 647; 554 NW2d 391 (1996). Moreover, defendant has not properly perfected his
appeal of this issue by filing a copy of the presentence report with this Court, MCL 769.34(8)(b),
and any other reports or documents that the trial court relied on at sentencing, MCL 769.34(8)(c).
See, e.g., People v Anderson, 209 Mich App 527, 535; 531 NW2d 780 (1995) (failing to provide
this Court with the relevant record waives further review). Alleged sentencing errors that have
been not been preserved are reviewed for plain error affecting substantial rights. McCrady, supra
at 32.
At the preliminary examination, the prosecutor showed defense counsel certified copies
of prior convictions, and defense counsel stipulated that defendant was previously convicted of
(1) operating while impaired on April 6, 1993 in 48th District Court and (2) operating with an
unlawful blood alcohol level (UBAL) on May 25, 1995 in 51st District Court. Although defense
counsel limited the stipulation to "purposes of preliminary exam only," defendant referred to
these same prior convictions in his circuit court motions to dismiss felony charges, specifically
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referring to the preliminary-examination stipulation. The prosecutor alleged the prior
convictions in the original and amended informations, and defendant never challenged the
accuracy of the prior convictions.
Defendant now argues on appeal that his prior convictions were not established by a
preponderance of evidence at sentencing, and that the prosecutor did not meet the requirement of
MCL 257.625(16) that prior convictions be established by one of three methods: (a) an abstract
of conviction, (b) a copy of the defendant's driving record, or (c) an admission by the defendant.
Defendant's argument fails.
In Weatherholt, supra, this Court construed subsections 11 and 123 of MCL 257.625, as
amended by 1991 PA 98, and held that the Legislature made the existence of prior convictions
only part of a sentence-enhancement scheme. This Court analogized enhancement of offenses
under MCL 257.625 to enhancement under the habitual-offender act, and enhancement of drug
offenses under the Public Health Code. Weatherholt, supra at 510-511. We concluded that the
statute did not require separate findings of fact and that "'due process neither compels a separate
charge nor imposes trial-type evidentiary burdens on the sentencing process.'" Id. at 511, quoting
People v Eason, 435 Mich 228, 244; 458 NW2d 17 (1990).
Our Supreme Court in People v Walker, 428 Mich 261, 267-268; 407 NW2d 367 (1987),
established the preponderance-of-evidence standard to determine contested factual matters at
sentencing proceedings by adopting Standard 18-6.4(c) of the American Bar Association
Standards for Criminal Justice (2d ed). However, it is incumbent on a defendant to first mount
an effective challenge to invoke his right to a hearing on a contested fact at sentencing and, thus,
the need for an evidentiary hearing with a finding by the trial court based upon the preponderance
of evidence. People v Ewing (After Remand), 435 Mich 443, 472; 458 NW2d 880 (1990) (Boyle,
J.); Walker, supra at 268. "Whether that requirement is satisfied with a flat denial of an adverse
factual assertion, or whether an affirmative factual showing is required, will depend upon the
nature of the disputed matter." Walker, supra at 268. Here, defendant never challenged the
accuracy of the alleged prior convictions. Moreover, defendant did not challenge the accuracy of
the presentence report, which the prosecutor avers also listed defendant's prior convictions. A
presentence report is presumed to be accurate and may be relied on by the trial court unless
effectively challenged by the defendant. People v Grant, 455 Mich 221, 233-234; 565 NW2d
389 (1997).
Moreover, the record here establishes that each of the three statutory methods of proving
defendant's prior convictions was either readily at hand, or was provided to the trial court. The
stipulation placed on the record at the preliminary examination was based on certified copies of
convictions that would qualify as an abstract of conviction. MCL 257.625(16)(a). The defense
stipulation incorporated into circuit court pleadings together with defendant's acknowledgement
at sentencing of "two previous drunk driving convictions," qualified as an admission by
defendant. MCL 257.625(16)(c). Further, defendant's driving record was provided to the trial
3
Now codified at MCL 257.625 (14) and (16), respectively.
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court at sentencing because the court noted defendant's lack of a conviction for driving without a
license as a reason for granting bond pending appeal. MCL 257.625(16)(b). Thus, the record
establishes that a defense challenge to defendant's prior convictions would have been futile.
Plain error affecting defendant's substantial rights did not occur. McCrady, supra at 32.
We affirm defendant's conviction and sentence.
/s/ Jane E. Markey
/s/ Michael R. Smolenski
/s/ Patrick M. Meter
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