PEOPLE OF MI V TERRY A HANNAFORD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 16, 2003
Plaintiff-Appellee,
v
No. 240817
Wayne Circuit Court
LC No. 01-007546-01
TERRY A. HANNAFORD,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Griffin and Saad, JJ.
PER CURIAM.
Defendant Terry A. Hannaford appeals as of right her bench trial convictions of operating
a vehicle under the influence of intoxicating liquor (OUIL) causing death, MCL 257.625(4),
operating a vehicle with license suspended causing death, MCL 257.904(4), and failure to stop at
the scene of a personal injury accident, MCL 257.617a. The trial court sentenced defendant to
concurrent sentences of ten to fifteen years’ imprisonment on the convictions for OUIL causing
death and operating a vehicle with license suspended causing death, and 240 days in jail with
credit for time served on the conviction for failure to stop at a personal injury accident. We
affirm.
On January 25, 2001, on Mt. Elliott Street in the City of Detroit, defendant’s vehicle
crossed the median at a high rate of speed and collided with a Geo automobile driven by Suzie
Coleman. As a result of the collision, Coleman’s four-year-old grandson, asleep in the back seat,
was killed. Coleman was ejected from the car and suffered numerous injuries, and her niece, a
front-seat passenger, was also injured.
On appeal, defendant first contends that the trial court erred in denying her motion for a
directed verdict as to the charges of OUIL causing death and operating a motor vehicle with
license suspended causing death. In a related argument, defendant also argues that the evidence
was insufficient to support her convictions on these two charges. We disagree.
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 prosecution,
viewed in the light most favorable to the prosecution, could persuade a rational trier of fact that
the essential elements of the crime charged were proved beyond a reasonable doubt. People v
Werner, 254 Mich App 528, 530-531; 659 NW2d 688 (2002); People v Aldrich, 246 Mich App
101, 122; 631 NW2d 67 (2001). Similarly, a challenge to the sufficiency of the evidence in a
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bench trial is reviewed de novo on appeal. People v Sherman-Huffman, 241 Mich App 264, 265;
615 NW2d 776 (2000), aff’d 466 Mich 39 (2002). This Court reviews the evidence in a light
most favorable to the prosecution to determine whether a rational trier of fact could have found
that each element of the crime was proved beyond a reasonable doubt. People v Harmon, 248
Mich App 522, 524; 640 NW2d 314 (2001). The trial court’s findings of fact are reviewed for
clear error, giving regard “to the special opportunity of the trial court to judge the credibility of
the witnesses who appeared before it.” MCR 2.613(C); People v Gistover, 189 Mich App 44,
46; 472 NW2d 27 (1991). A finding of fact is clearly erroneous if, after review of the entire
record, this Court is left with a definite and firm conviction that a mistake has been made. Id.
Circumstantial evidence and the reasonable inferences arising from the evidence can constitute
satisfactory proof of the elements of the crime. People v Lee, 243 Mich App 163, 167; 622
NW2d 71 (2000). All conflicts in the evidence must be resolved in favor of the prosecution.
People v Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997).
The requisite elements of the offense of OUIL causing death are (1) the defendant was
operating a motor vehicle on a public highway or other place open to the general public while
under the influence of intoxicating liquor, (2) the defendant voluntarily decided to operate the
vehicle knowing that he or she had consumed alcohol and might be intoxicated, and (3) the
defendant’s intoxicated driving was a substantial cause of the victim’s death. MCL 257.625(4);
People v Lardie, 452 Mich 231, 234, 259-260; 551 NW2d 656 (1996).
Here, defendant maintains that there was no evidence that she was under the influence of
intoxicating liquor or was impaired at the time of this collision. She notes that she was arrested a
substantial time later in the day after the accident, at which time a police officer smelled alcohol
on her breath. However, defendant contends that neither witnesses at the scene nor the owner of
the house she went to immediately after the accident testified that she was under the influence at
that time. Thus, defendant argues that the prosecution failed to show what her condition was at
the time of the accident. We disagree.
In its findings of fact, the trial court set forth in summarized fashion the evidence that
supported the conclusion that defendant had been intoxicated while driving that day. Two
witnesses testified that defendant smelled strongly of alcohol. One witness, an acquaintance of
defendant, testified that she smelled a beer odor on defendant within minutes of the crash when
defendant came to her house near the accident scene. The second witness, a police officer, stated
that he smelled a very strong odor of intoxicants on defendant when he took her to a police
station approximately two hours after the crash. He further testified that defendant had slurred
speech at that time.
Although defendant testified that she had not been drinking and that after the accident she
walked around and did not eat or drink anything, the trial court found her denial to be incredible
in light of the evidence introduced at trial. Witnesses to the accident testified that defendant was
driving at a high rate of speed on a residential street – an estimated eighty to ninety miles per
hour – and crossed into the opposing lane of Mt. Elliott where her car struck the victim’s
automobile. Defendant walked toward the crowd of people around the cars, asked if everybody
was all right, and then walked away in the opposite direction.
Viewing the evidence in the light most favorable to the prosecution, we conclude that a
rational trier of fact could be persuaded that the essential elements of OUIL causing death were
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proved beyond a reasonable doubt, and thus the trial court did not err in denying defendant’s
motion for directed verdict. Although defendant offered a different account, the trial court found
her testimony to be incredible. After a bench trial, this Court will not resolve witness credibility
anew. People v Jackson, 178 Mich App 62, 64-65; 443 NW2d 423 (1989); People v Daniels,
172 Mich App 374, 378; 431 NW2d 846 (1988). Although no breathalyzer or field sobriety tests
were ever administered to defendant, it can reasonably be inferred that defendant was driving
while intoxicated in light of the evidence regarding defendant’s erratic driving at a very high
speed immediately before the accident, a witness’ unequivocal testimony that she smelled a
noticeable beer odor on defendant when she arrived at the witness’ house minutes after the
accident, and the police officer’s testimony that when he arrested defendant two hours later, she
had slurred speech and a very strong odor of intoxicants. The evidence viewed in a light most
favorable to the prosecution is sufficient to sustain defendant’s conviction for OUIL causing
death.
With regard to the charge of operating a motor vehicle with license suspended causing
death, defendant nebulously asserts on appeal that her driver’s license was not suspended at the
time of the accident. However, a review of the record indicates that a certified copy of
defendant’s driving record was admitted at trial, which indicated that defendant’s license was
indefinitely suspended at the time of the fatal accident. Thus, there was sufficient evidence
produced to allow a rational trier of fact to find guilt beyond a reasonable doubt on this charge.
Next, defendant argues that her convictions for operating a vehicle with license
suspended causing death and OUIL causing death violate the prohibition against double jeopardy
set forth in the Michigan Constitution, Const 1963, art 1, § 15. Contrary to defendant’s
assertion, the instant case does not implicate the double jeopardy protection against successive
prosecutions after a conviction, but rather involves the protection against multiple punishments
for the same offense. See, generally, People v Herron, 464 Mich 593, 599-600; 628 NW2d 528
(2001).
A double jeopardy challenge constitutes a question of law that this Court reviews de novo
on appeal. Herron, supra at 599; People v Kulpinski, 243 Mich App 8, 12; 620 NW2d 537
(2000). “Statutes prohibiting conduct that is violative of distinct social norms can generally be
viewed as separate and amenable to permitting multiple punishments.” People v Robideau, 419
Mich 458, 487; 355 NW2d 592 (1984). As this Court explained in People v Squires, 240 Mich
App 454, 457; 613 NW2d 361 (2000):
Although the Double Jeopardy Clause restricts courts from imposing more
punishment than that intended by the Legislature, the Legislature may authorize
cumulative punishment of the same conduct under two different statutes. People
v Denio, 454 Mich 691, 709; 564 NW2d 13 (1997). Whether the Legislature
intended multiple punishments at a single trial for persons who commit the
offenses in question is the determining factor under the Double Jeopardy Clause.
Id. at 706. Determination of legislative intent involves traditional considerations
of the subject, language, and history of the statutes. Id. at 708. Factors to
consider include whether each statute prohibits conduct violative of a social norm
distinct from the norm protected by the other, the amount of punishment
authorized by each statute, whether the statutes are hierarchical or cumulative, the
elements of each offense, and any other factors indicative of legislative intent. Id.
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See also Kulpinski, supra at 12-13.
Here, distinct societal norms are targeted by each statute. MCL 257.625(4) aims at
preventing the operation of a motor vehicle with or without a license where the operation causes
the death of another and the driver is under the influence of an intoxicating liquor. MCL
257.904(4) was enacted to address the operation of a motor vehicle by a person whose license
has been suspended and where death occurs as a result of the vehicle operation. In the former, it
is the operation of a vehicle under the influence of liquor that is prohibited. See Kulpinski, supra
at 22. In the latter, it is the simple operation of a motor vehicle with a suspended driver’s license
that is the central focus of the statute.
Moreover, for a conviction under MCL 257.904(4), the prosecution must prove that the
driver had a suspended license. Under MCL 257.625(4), that fact is inconsequential because it is
the operation of a vehicle while under the influence of alcohol that is banned. Thus, operating a
vehicle with license suspended causing death requires proof of an element that the other does
not. Finally, we note that the amount of punishment for each statute does not involve a hierarchy
of offenses with staggered or increased punishment. Squires, supra. Accordingly, where
legislative intent reveals conduct addressed by statutory language violative of distinct social
norms, we conclude that the Legislature intended that the offenses in question be punished
separately. Thus, defendant’s convictions for OUIL causing death and driving with license
suspended causing death do not violate double jeopardy. Id.; Kulpinski, supra.
Defendant lastly maintains that the trial court abused its discretion in sentencing her to a
term of imprisonment substantially longer than the highest end of the sentencing guidelines.
Defendant contends that there were no objective and verifiable factors constituting substantial
and compelling reasons for the trial court to make an upward departure from the highest end of
the sentencing guidelines in imposing sentence. We disagree.
In reviewing a departure from the guidelines range, the existence of a sentencing factor is
a factual determination subject to review for clear error, the determination that the factor is
objective and verifiable is reviewed as a matter of law, and the trial court’s determination that the
factors constitute substantial and compelling reasons for departure is reviewed for an abuse of
discretion. People v Babcock, ___ Mich ___; 666 NW2d 231 (2003) (Docket No. 121310,
issued 7/31/03), slip op at 18. “An abuse of discretion occurs when the trial court chooses an
outcome falling outside the permissible principled range of outcomes.” Id., slip op at 29.
Under the legislative sentencing guidelines, a trial court is required to impose a sentence
within the guidelines range unless there is a “substantial and compelling” reason for departing
from this range. MCL 769.34(3); Babcock, supra, at slip op at 7; People v Hedgewood, 465
Mich 432, 439; 636 NW2d 127 (2001). A “substantial and compelling” reason must be objective
and verifiable and must irresistibly hold the attention of the court. Id., slip op at 8-9, quoting
People v Fields, 448 Mich 58, 62; 528 NW2d 176 (1995). A trial court may not depart from a
sentencing guidelines range based on an offense characteristic or offender characteristic already
considered in determining the guidelines range unless the court finds, based on the facts in the
record, that the characteristic was given inadequate or disproportionate weight. MCL
769.34(3)(b); Babcock, supra, slip op at 12, 21.
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In this case, the trial court sentenced defendant to 240 days in jail with credit for time
served on the conviction for failure to stop at a personal injury accident, and to concurrent terms
of imprisonment of ten to fifteen years on her convictions for OUIL causing death and operating
a vehicle with license suspended causing death.
The sentencing information report
recommended a minimum sentence range of four years two months to eight years four months
for these latter two convictions. Thus, the trial court exceeded the calculated sentencing
guidelines range by approximately twenty months, imposing a minimum sentence of ten years
for the two felony convictions.
In sentencing defendant, the trial court, having heard defendant testify at trial and during
allocution, noted that defendant’s conduct showed total disregard for the law and life and safety
of others. Defendant had an “outrageous driving record” – she repeatedly drove a car after being
convicted of other drunk driving offenses and having her license suspended. The court stated
that defendant was in total denial regarding the fatal accident – she continuously claimed,
contrary to the testimony of witnesses at trial, that she was not intoxicated at the time of the
accident; she refused to undergo a psychiatric examination; she alleged that the police tampered
with the accident scene by placing an unknown and smashed vehicle at the scene; and she
maintained that the complainant had stopped in front of her, causing the accident. The trial court
concluded that defendant was “unredeemable and unrepentant” and therefore exceeded the
guidelines range in sentencing defendant.
Faced with defendant’s horrible driving record which showed other offenses of driving
while under the influence and driving continually with her license suspended, the court voiced its
reasons for exceeding the guidelines. We are satisfied that these factors articulated by the trial
court – defendant’s poor driving record and her action of driving continually with her license
suspended – are objective and verifiable, either from physical evidence, testimonial evidence, or
documentary evidence, and present substantial and compelling reasons for the upward departure
under circumstances where a five-year-old boy was killed by defendant’s conduct. The trial
court therefore did not abuse its discretion when departing from the sentencing guidelines.
Babcock, supra.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Richard Allen Griffin
/s/ Henry William Saad
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