PEOPLE OF MI V JAMES RICHARD STIEHL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 15, 2009
Plaintiff-Appellee,
v
No. 283641
Kent Circuit Court
LC No. 07-008151-FH
JAMES RICHARD STIEHL,
Defendant-Appellant.
Before: Davis, P.J., and Murphy and Fort Hood, JJ.
PER CURIAM.
Defendant appeals as of right his convictions for operating a motor vehicle while
intoxicated, third offense (OWI 3rd), MCL 257.625(1) and (9), and driving a motor vehicle with
a suspended license (DWLS), MCL 257.904(1). We affirm.
I. Ex Post Facto Challenge
This Court has concluded that the amendment to MCL 257.625(9)(c) that eliminated the
ten-year limitation on prior convictions for enhancement purposes does not violate due process
or the prohibition against ex post facto laws. People v Sadows, 283 Mich App 65, 67-70; 768
NW2d 93 (2009); People v Perkins, 280 Mich App 244, 251-252; 760 NW2d 669 (2008), aff’d
482 Mich 1118 (2008). This challenge is without merit, MCR 7.215(C)(2).
II. Sufficiency of the Evidence
Defendant argues that there was insufficient evidence to support his conviction for OWI
3rd when the prosecutor relied upon circumstantial evidence, the credibility of the evidence was
lacking, and the expert’s “relation back” testimony was speculative. We disagree. When the
sufficiency of the evidence to sustain a conviction is questioned, we review the evidence in the
light most favorable to the prosecution to determine if a rational trier of fact could have found
that the essential elements of the crime were proven beyond a reasonable doubt. People v Cline,
276 Mich App 634, 642; 741 NW2d 563 (2007). It is acceptable for the elements of the crime to
be proven by circumstantial evidence and reasonable inferences that arise from the evidence.
People v Schumacher, 276 Mich App 165, 167; 740 NW2d 534 (2007). The standard of review
defers to the determination rendered by the jury. That is, we must draw all reasonable inferences
and make credibility assessments in support of the jury verdict. People v Nowack, 462 Mich
392, 400; 614 NW2d 78 (2000). The prosecutor must prove the elements of the crime beyond a
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reasonable doubt; it is unnecessary for the prosecutor to disprove every reasonable theory
consistent with innocence. Id. Therefore, the prosecutor need only convince the jury in light of
whatever contradictory evidence that is presented by the defense. Id.
OWI requires proof beyond a reasonable doubt that defendant drove with a blood alcohol
content (BAC) of .08 grams or more of alcohol per 100 milliliters of blood, or that defendant
drove while under the influence of alcohol, controlled substances, or a combination of both.
MCL 257.625(1). The prosecutor is permitted to allege both alternate theories, and the jury may
return a general verdict. People v Nicolaides, 148 Mich App 100, 103-104; 383 NW2d 620
(1985). Viewing the evidence in the light most favorable to the prosecution, Cline, supra, there
was sufficient evidence presented to enable a rational trier of fact to conclude that defendant was
guilty of OWI under either alternate theory. The evidence indicated that defendant had a BAC of
.06 two hours after the accident, and based on a standard elimination rate, as testified to by the
prosecutor’s expert, his BAC was .09 at the time of the accident. The challenge to the expert’s
testimony as speculative is without merit; rather, the weight and credibility of the evidence
presented an issue for the jury to resolve. People v Wager, 460 Mich 118, 126; 594 NW2d 487
(1999). Further, defendant failed to avoid the collision that ultimately led the police to come into
contact with defendant, despite the fact that a car further ahead of him was able to stop in time.
Defendant’s breath smelled strongly of alcohol, and he admitted that he drank beer and vodka
until the early morning hours on the day of the accident. Blood tests revealed that defendant was
taking a prescription antidepressant, which was known to enhance the effect of alcohol. Viewing
the circumstantial evidence and reasonable inferences, Schumacher, supra, in the light most
favorable to the prosecution, Cline, supra, there was sufficient credible evidence to support the
OWI 3rd conviction.
III. Errors Committed at Trial
Defendant next raises several alleged errors made by the trial court. In light of the fact
that defendant dismissed his counsel during trial and proceeded in propria persona, the issues
were not preserved by objection at trial. Defendant’s unpreserved instructional errors are
reviewed for plain error affecting his substantial rights. People v Carines, 460 Mich 750, 762764; 597 NW2d 130 (1999).
The trial court’s instructions did not violate defendant’s right to a unanimous verdict.
People v Cooks, 446 Mich 503, 510-511; 521 NW2d 275 (1994); US Const, Am VI; Const 1963,
art 1, § 14. Jury unanimity is not required for alternate theories when the statute under which a
defendant is charged lists alternate ways to commit the offense, but do not constitute separate
and distinct offenses. People v Asevedo, 217 Mich App 393, 397; 551 NW2d 478 (1996).
Defendant was permissibly charged with one count of OWI predicated on alternate theories
(unlawful BAC or operating under the influence of alcohol), and the jury returned a general
verdict. Nicolaides, supra at 103-104. There was no plain error.
We reject defendant’s contention that the trial court improperly instructed regarding
additional theories without notice to the defense. US Const, Am VI; Const 1963, art 1, § 20;
People v Unger, 278 Mich App 210, 221; 749 NW2d 272 (2008). The trial court read MCL
257.625(1), the statute under which defendant was charged, to the jury. Defendant was not
charged with driving while under the influence of a controlled substance, and the prosecutor
never advanced that theory at trial. Moreover, the trial court instructed the jury that a
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prescription drug is not a controlled substance, and the prosecutor merely argued that the
prescription antidepressant enhanced the effect of the alcohol, not that it was a controlled
substance. Viewing the instructions as a whole, we find no error requiring reversal because the
jury was not improperly allowed to convict defendant on a theory that he drove under the
influence of a controlled substance or a combination of alcohol and a controlled substance.
People v Henry, 239 Mich App 140, 151; 607 NW2d 767 (1999).
Furthermore, the trial court’s instructions did not deprive defendant of a defense. US
Const, Ams, VI, XIV; Const 1963, art 1, §§ 13, 17, 20; People v Anstey, 476 Mich 436, 460; 719
NW2d 579 (2006). The trial court correctly instructed the jury that “under the influence” means
that a defendant’s ability to drive was substantially lessened. Oxendine v Secretary of State, 237
Mich App 346, 353-354; 602 NW2d 847 (1999); CJI 2d 15.3(2). Defendant has failed to show
that his alleged unpreserved instructional errors constituted plain error that affected his
substantial rights.1 Carines, supra at 763-764.
Defendant next argues that the trial court erred in admitting the testimony of Dr. Felix
Adatsi because his testimony was not reached through reliable principles and methodology and
sufficient facts and data. MRE 702 provides that the trial court may admit helpful expert
testimony if “(1) the testimony is based on sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.” See also Gilbert v DaimlerChrysler Corp, 470 Mich
749, 779-780; 685 NW2d 391 (2004). Defendant failed to raise an objection on this ground in
the trial court, and we reviewed it for plain error. Carines, supra at 763-764.
Adatsi was properly qualified as an expert in toxicology based on his extensive
experience and knowledge of the interaction between drugs and the human body. Further, his
testimony about the average elimination rate of alcohol was based on his scientific knowledge,
and there is no indication that his mathematical estimate of defendant’s BAC two hours before
the blood draw using the well-known standard elimination rate was unreliable. Moreover, the
Antsey Court held that a defendant may challenge the elimination rate and extrapolation evidence
with a toxicology expert and methodology challenges. Anstey, supra at 454 n 20. See also
Wager, supra at 124-125. Defendant offers no authority to support that Adatsi’s testimony was
unreliable because defendant alleged that he drank NyQuil. An appellant “may not merely
announce his position and leave it to this Court to discover and rationalize the basis for his
1
Defendant also contends that he was denigrated by the trial court’s instruction that fault was not
an element of the crime. However, defendant also concedes that “[a]ll of this may be technically
true, but the effect on the jury is devastating, and very unfair.” In light of defendant’s concession
that the trial court’s instruction was correct, we cannot conclude that defendant was denigrated as
a result of a proper instruction. We also note that we have addressed the instructional issues in
accordance with the plain error standard when defendant waived instructional error by failing to
object with specificity. People v Carter, 462 Mich 206, 215-216; 612 NW2d 144 (2000).
Defendant objected to the instructions, and when the trial judge requested specifics, defendant
told the judge that he had to go “smoke.” The right of self-representation does not excuse one
from compliance with relevant rules and procedural law. People v Kevorkian, 248 Mich App
373, 419; 639 NW2d 291 (2001).
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claims, nor may he give only cursory treatment with little or no citation of supporting authority.”
People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998). We note, however, that
NyQuil would have increased defendant’s BAC,2 and defendant failed to establish at trial that he
drank the Nyquil so close to the time of the accident that his BAC was actually increasing
instead of decreasing after the accident.
We also hold that Adatsi was properly allowed to testify about the effect of the
antidepressant in defendant’s bloodstream because of his extensive knowledge in toxicology, his
specific knowledge of amitriptyline, the studies performed on the drug, and its known effects
when combined with alcohol. Gilbert, supra at 780-781. Defendant has failed to establish that
the testimony was unreliable. Adatsi specified the amount of alcohol and then merely indicated
that the antidepressant was “present.” This fact was relevant because of the drug’s known
interaction with alcohol, specifically that it would enhance defendant’s susceptibility to the
influence of alcohol. Therefore, this evidence was relevant to whether defendant drove under the
influence of alcohol. MRE 401. In addition, this challenged testimony was cumulative of
Jennifer Waggoner’s testimony, to which defendant did not object. Cumulative evidence is not
prejudicial even if erroneously admitted. People v Rodriquez (On Remand), 216 Mich App 329,
332; 549 NW2d 359 (1996). There was no plain error requiring reversal.3
Finally, with respect to Adatsi, we hold that the trial court did not abuse its discretion in
denying defendant’s motion and request for a hearing related to the alleged prosecutor’s
discovery violation for failing to disclose the contents of Adatsi’s testimony. People v Lemcool
(After Remand), 445 Mich 491, 498; 518 NW2d 437 (1994). The statements of defendant’s trial
counsel and the prosecutor indicate that the prosecutor properly provided defense counsel with
the requisite information. Defendant cannot demonstrate the existence of a discovery violation
based on the record, nor can he demonstrate that a hearing on this issue was necessary.
Defendant next argues that the trial court improperly handled the presentation of the
videotape. This claim is abandoned because defendant failed to cite any authority in support of
his position. Kelly, supra at 640-641. We note, however, that defendant actually agreed to the
admission of the videotape, requested that the entire tape be played, and knew its contents. He
cannot now claim impropriety. Further, “a trial court has the inherent power to control the
admission of evidence in order to promote the interests of justice.” People v Greenfield, 271
Mich App 442, 455 n 10; 722 NW2d 254 (2006).
Defendant argues that the trial court violated his due process rights in refusing to excuse
a juror. There is no constitutional right to exercise a peremptory challenge; Michigan grants the
right to peremptory challenges by statute and court rule, but the right expires when the jury is
sworn. People v Daoust, 228 Mich App 1, 7; 577 NW2d 179 (1998), overruled on other gds
2
Medicinal alcohol is considered an “alcoholic liquor.” MCL 257.1d.
3
To the extent that defendant also argued that the admission of this evidence by the prosecutor
constituted prosecutorial misconduct, we disagree. There can be no prosecutorial misconduct
when evidence is properly admitted. People v Dobek, 274 Mich App 58, 70; 732 NW2d 546
(2007).
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People v Miller, 482 Mich 540, 561; 759 NW2d 850 (2008). Defense counsel did not exercise a
peremptory challenge to remove the juror, and defendant did not raise his challenge until after
the jury was sworn. The trial court did not err in later ruling that there was no basis to find
prejudice, where the juror indicated that her husband was a road patrol police officer in a
different city and that this would not affect her judgment.
Defendant claims that the trial court improperly curtailed his questioning of the witness
involved in the accident. The trial court has a duty to limit evidence and arguments to relevant
matters. People v Ullah, 216 Mich App 669, 673; 550 NW2d 568 (1996). A defendant’s right to
cross-examine a witness is not unlimited; the trial court has wide discretion to limit crossexamination because of harassment, prejudice, confusion, repetitive or irrelevant questions, or
concerns for the witness’s safety. People v Adamski, 198 Mich App 133, 138; 497 NW2d 546
(1993). We conclude that the trial court properly limited defendant’s questioning. The record
reflects that defendant repeatedly posed inappropriate questions that amounted to testifying or
arguing with the witness, and the trial court cautioned defendant that this was improper. The
trial court also twice permitted defendant to resume questioning after he indicated that he was
done with the witness. The trial court limited defendant when he continued to ask improper
questions. Ullah, supra at 674. Further, the trial court’s ruling that it was irrelevant who was at
fault for the accident is correct; it was not an element of the crimes for which defendant was
charged, and the prosecutor never argued that defendant was at fault in the accident. Adamski,
supra at 138. Although defendant argues that the trial court violated due process by informing
defendant that he could subpoena the witness to reappear if he wanted to ask more questions,
defendant cites absolutely no authority to support this position, and therefore abandoned that
argument. Kelly, supra at 640-641.
IV. Prosecutorial Misconduct
On appeal, defendant also argues that his constitutional rights were violated by the
prosecution’s plea offer.4 The prosecutor offered to allow defendant to plead guilty to OWI 3rd,
and in turn, the DWLS and habitual offender charge would be dismissed. Defendant waived his
preliminary examination in order to preserve the plea offer for later decision, and signed the
waiver. The trial court thereafter held the plea offer open past the deadline. Ultimately,
defendant rejected the offer. The prosecution upheld its promise to defendant by keeping the
offer open. Defendant waived any claim that he was coerced into waiving his preliminary
examination, and he cannot now raise it as an error. People v Carter, 462 Mich 206, 215-216;
612 NW2d 144 (2000). The prosecutor’s offer to dismiss two charges in exchange for a plea to
one charge was not unduly coercive. People v Ryan, 451 Mich 30, 36; 545 NW2d 612 (1996).
Further, any error would not amount to plain error requiring reversal where defendant was
convicted as charged based on sufficient evidence, rendering any claim related to the preliminary
examination harmless. People v Libbett, 251 Mich App 353, 357; 650 NW2d 407 (2002).
Defendant’s waiver of the preliminary examination authorized the prosecution to file the
information, and defendant was properly bound over and went to trial. People v Hunt, 442 Mich
359, 362; 501 NW2d 151 (1993); MCR 6.110(A); MCR 6.112(B). Additionally, we cannot
4
This argument was raised in the supplement brief filed by defendant.
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conclude that defendant was deprived of a fair trial based on the prosecutor’s questioning of the
witnesses, including the experts, when the evidence was relevant and admissible, MRE 401;
MRE 403.
V. Defendant’s Supplemental Brief
Although we cannot locate defendant’s arraignment on the information in the circuit
court in the record, his constitutional right to notice of the charges against him was not violated.
People v Darden, 230 Mich App 597, 600; 585 NW2d 27 (1998); US Const, Ams VI, XIV;
Const 1963, art 1, § 20. Where a defendant “[goes] to trial as if an issue were formed, all
participants acting as if all formalities had been complied with, [this] is equivalent to an
arraignment and plea.” People v Weeks, 165 Mich 362, 365; 130 NW 697 (1911) (citations
omitted). The record reflects that defendant was arraigned in district court, he was advised of the
charges against him at his preliminary examination waiver hearing, he moved to dismiss the
charges, and he appeared before the trial court to reject the prosecution’s plea offer. Defendant
did not raise the arraignment issue until the third day of trial. Reversal is not required. Id. In
addition, we conclude that the prosecution did not surpass its authority; the information
adequately set forth the charges against defendant, and the prosecutor was authorized to file the
information after the preliminary examination waiver. Hunt, supra at 362; MCR 6.112(D).
Lastly, defendant has failed to demonstrate that his due process, equal protection, or
double jeopardy rights were violated when the trial court instructed the jury that the BAC
evidence may be considered in relation to both the OWI charge and the lesser alternative offense
of operating a vehicle while impaired. Defendant was not convicted of both crimes, and the
BAC evidence was relevant to establishing each offense. People v Nutt, 469 Mich 565, 574; 677
NW2d 1 (2004); CJI 2d 15.5. The trial court’s instruction also did not classify defendant in a
way that burdened a fundamental right. People v McFall, 224 Mich App 403, 413; 569 NW2d
828 (1997).
Affirmed.
/s/ Alton T. Davis
/s/ William B. Murphy
/s/ Karen M. Fort Hood
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