PEOPLE OF MI V TIMOTHY PAUL BAY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 16, 2006
Plaintiff-Appellee,
v
No. 266739
Ingham Circuit Court
LC No. 05-000286-FH
TIMOTHY PAUL BAY,
Defendant-Appellant.
Before: Whitbeck, C.J., and Saad and Schuette, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of felonious driving, MCL 257.626c.
Defendant was sentenced to 12 months probation, community service, and restitution.
Defendant appeals as of right. We affirm. This case is being decided without oral argument
under MCR 7.214(E).
I. FACTS
On October 27, 2004, Molly Wiersema was struck by defendant’s motorcycle as she
attempted to cross Wilson Road at the Farm Lane intersection on the campus of Michigan State
University. The evidence produced at trial established the following: (1) defendant was driving
his motorcycle between 25 and 35 mph; (2) the speed limit through the intersection was 25 mph;
(3) the intersection was busy with vehicular and pedestrian traffic; (4) as he approached the
intersection, the motorcycle engine’s rpm revved; (5) no eyewitness observed defendant either
increase or decrease his speed at any time; (6) defendant did not stop at the intersection, even
though the light was red; (7) Wiersema waited for the crosswalk signal to change to the walk
sign, looked left toward defendant, and took one or two steps into the crosswalk; (8) there were
other people standing behind Wiersema at the intersection; (9) as he approached Wiersema,
defendant’s “eyes got very large”; and (10) defendant did not stop, slow down, or swerve to
avoid hitting Wiersema.
Defendant’s sole argument on appeal is that the evidence presented at trial was
insufficient to convict him. Specifically, defendant argues that the prosecution failed to present
evidence that he was driving his motorcycle in a grossly negligent manner. We disagree.
II. STANDARD OF REVIEW
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We review a claim of insufficient evidence in the light most favorable to the prosecution
to determine whether a rational trier or fact could find the defendant guilty beyond a reasonable
doubt. People v Fletcher, 260 Mich App 531, 559; 679 NW2d 127 (2004). We do not interfere
with the jury’s role in determining the weight of the evidence or the credibility of witnesses. Id.
at 561.
III. ANALYSIS
To obtain a conviction for felonious driving, the prosecution is required to produce proof
of gross negligence. People v McCoy, 223 Mich App 500, 502; 566 NW2d 667 (1997). The
following elements are required to establish gross negligence:
“‘(1) Knowledge of a situation requiring the exercise of
ordinary care and diligence to avert injury to another.
(2) Ability to avoid the resulting harm by ordinary care and
diligence in the use of the means at hand.
(3) The omission to use such care and diligence to avert the
threatened danger when to the ordinary mind it must be apparent
that the result is likely to prove disastrous to another.’” [Id. at 503,
quoting People v Lardie, 452 Mich 231, 251-252; 551 NW2d 656
(1996), quoting People v Orr, 243 Mich 300, 307; 220 NW2d 777
(1928).]
Here, a jury could reasonably infer that defendant had “[k]nowledge of a situation
requiring the exercise of ordinary care and diligence to avert injury to another” because “a jury
could properly infer that defendant knew that the act of driving requires the exercise” of such
care. Id. Likewise, the jury could reasonably infer that defendant had the ability to avoid hitting
Wiersema with his motorcycle by exercising “ordinary care and diligence,” but failed to do so.
Id. For example, there is no evidence that defendant could not have stopped at the red light,
could not have slowed down through the intersection, and could not have steered his motorcycle
away from Wiersema.
Finally, a jury could reasonably infer that it must have been apparent to the ordinary mind
that the result of defendant failing to exercise ordinary care and diligence in this situation was
“likely to prove disastrous to another.” Id. McCoy concluded that this element was satisfied
when the defendant drove his van at 55 mph in a 35 mph zone (a speed described as
“significantly faster than the average speed” of 40 to 45 mph on the road) through heavy traffic
and struck two women who had been standing in the same place for several seconds. Id. at 504.
We stated that “[t]he fact that defendant did not slow down or swerve in an attempt to avoid
striking [the women] . . . suggests that he was traveling at a reckless speed.” Id. Similarly, here,
a jury could reasonably find that defendant drove recklessly because he was traveling at up to 10
mph over the speed limit through an intersection that was busy with vehicular and pedestrian
traffic, and he failed to either slow down or swerve in an attempt to avoid striking Wiersema. In
addition, defendant increased his motorcycle engine’s rpm before entering the intersection,
which a jury could reasonably infer signaled an attempt by defendant to accelerate through the
red light.
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Therefore, when viewing the evidence in the light most favorable to the prosecution, we
hold that a rational fact-finder could conclude beyond a reasonable doubt that defendant was
grossly negligent in driving his motorcycle.
Affirmed.
/s/ William C. Whitbeck
/s/ Henry William Saad
/s/ Bill Schuette
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