People v. Mikulen

• Court: Court of Appeal of Michigan
• Writing for the Court: Murphy, P.J.
• Citation: People v. Mikulen, 324 Mich.App. 14, 919 N.W.2d 454 (Mich. App. 2018)
• Decision Date: 24 April 2018
• Docket Number: No. 337003,337003
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Gregory Scott MIKULEN, Defendant-Appellee.

324 Mich.App. 14

919 N.W.2d 454

PEOPLE of the State of Michigan, Plaintiff-Appellant,

v.Gregory Scott MIKULEN, Defendant-Appellee.

No. 337003

Court of Appeals of Michigan.

Submitted April 12, 2018, at Lansing.

Decided April 24, 2018, 9:05 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Jerard M. Jarzynka, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.

Michael Skinner and Barone Defense Firm (by Mike Boyle ) for defendant.

Before: Murphy, P.J., and Jansen and Swartzle, JJ.

Murphy, P.J.

The prosecution appeals by leave granted the circuit court’s order that vacated defendant’s conviction in the district court of operating a motor vehicle while visibly impaired (OWVI), MCL 257.625(3).¹ The district court jury acquitted defendant of the greater charge of operating a motor vehicle while intoxicated (OWI), MCL 257.625(1). The prosecution argues that the circuit court erred by ruling that there was insufficient evidence to convict defendant of OWVI. The circuit court concluded that it was necessary for the prosecution to present evidence showing that defendant was seen operating his vehicle in an impaired manner in order to obtain a conviction for OWVI. The circuit court found that no such evidence was submitted to the jury. Indeed, according to the circuit court, the only evidence regarding defendant’s actual driving was the arresting officer’s testimony that indicated that defendant was not driving in an erratic, improper, or impaired manner. The circuit court therefore determined that the district court erred by submitting the OWVI offense to the jury. We hold that the circuit court misconstrued MCL 257.625(3), given that the crime of OWVI does not require proof that a person was operating a motor vehicle in an impaired manner. The offense does require proof that a person’s ability to operate a motor vehicle was visibly impaired, and we conclude that this evidentiary mandate compels the prosecution to proffer evidence of a visual or observational nature, i.e., evidence describing or depicting actions, conduct, characteristics, or movements of the person during the pertinent time period, revealing an impaired ability relevant to operating a vehicle. In the instant case, the prosecution presented, in part, evidence that defendant had glassy, bloodshot eyes and failed sobriety tests, and while there was evidence of errors by the arresting officer in conducting the tests, those errors went to the weight of the evidence. Moreover, the jury was permitted to assess whether defendant’s ability to operate his vehicle was visibly impaired based on its viewing of the videotape of the stop and sobriety tests. We hold that there was sufficient evidence to support the conviction of OWVI and that there was no error in instructing the jury on OWVI. The circuit court also ruled that the district court erred by admitting blood-test evidence because of a foundational flaw, specifically that the prosecution failed to provide the testimony of the phlebotomist who drew defendant’s blood and that the lapse was not overcome through the testimony of other witnesses. We conclude that, assuming error, it was harmless for purposes of OWVI, considering the OWI acquittal and that untainted evidence established that defendant had consumed alcohol before driving. In sum, we reverse the circuit court’s decision and remand for reinstatement of defendant’s OWVI conviction.

The arresting officer observed defendant driving satisfactorily; he was not swerving, speeding, or driving abnormally in any way. The officer initiated a traffic stop because defendant’s vehicle had a corroded, obscured license plate. The officer spoke with defendant and saw that defendant had glassy, bloodshot eyes and smelled of intoxicants. Defendant admitted to the officer that he had consumed two or three beers. Consequently, the officer administered a few sobriety tests, the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-legged-stand test, which indicated to the officer’s satisfaction that defendant was intoxicated. On cross-examination, the officer acknowledged that he made errors in conducting the HGN test and that he did not fully understand the clues of alcohol consumption relative to the walk-and-turn and one-legged-stand tests. The officer arrested defendant and, with defendant’s consent, took him to a local hospital where a phlebotomist drew defendant’s blood in the officer’s presence. The officer sealed defendant’s blood sample and mailed it to the Michigan State Police Crime Lab where a forensic scientist tested the sample and determined that defendant’s blood alcohol content was 0.109 grams, exceeding the legal limit of 0.08 grams per 100 milliliters of blood, MCL 257.625(1)(b).

The prosecution charged defendant with OWI, and over defendant’s objection, the district court also instructed the jury on the lesser charge of OWVI. Defendant was convicted of OWVI, and he appealed the conviction in the circuit court. The circuit court interpreted MCL 257.625(3) —the OWVI provision—to require testimony by a witness who actually observed defendant driving in an impaired manner. Stated otherwise, the circuit court construed the statutory provision to demand proof of bad or erratic driving, i.e., impaired driving. The circuit court found that no such evidence was submitted to the jury and that, to the contrary, the arresting officer testified that defendant was not driving in an impaired manner. Accordingly, the circuit court concluded that the district court should never have instructed the jury on OWVI. The circuit court also ruled that the district court erred by admitting the blood-test evidence on the ground that there was no testimony that properly established the method and procedure used in conducting the blood draw, given that the phlebotomist who drew defendant’s blood did not testify. The circuit court concluded that the absence of the phlebotomist at trial deprived defendant of his constitutional right of confrontation. In light of its rulings, the circuit court vacated defendant’s OWVI conviction.

We review de novo whether there was sufficient evidence to sustain a conviction. People v. Lueth , 253 Mich. App. 670, 680, 660 N.W.2d 322 (2002). In reviewing the sufficiency of the evidence, this Court must view the evidence—whether direct or circumstantial—in a light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v. Reese , 491 Mich. 127, 139, 815 N.W.2d 85 (2012) ; People v. Hardiman , 466 Mich. 417, 428, 646 N.W.2d 158 (2002). A jury, and not an appellate court, observes the witnesses and listens to their testimony; therefore, an appellate court must not interfere with the jury’s role in assessing the weight of the evidence and the credibility of the witnesses. People v. Wolfe , 440 Mich. 508, 514–515, 489 N.W.2d 748 (1992). Circumstantial evidence and the reasonable inferences that arise from such evidence can constitute satisfactory proof of the elements of a crime. People v. Carines , 460 Mich. 750, 757, 597 N.W.2d 130 (1999). The prosecution need not negate every reasonable theory of innocence; instead, it need only prove the elements of the crime in the face of whatever contradictory evidence is provided by the defendant. People v. Nowack , 462 Mich. 392, 400, 614 N.W.2d 78 (2000). We resolve all conflicts in the evidence in favor of the prosecution. People v. Kanaan , 278 Mich. App. 594, 619, 751 N.W.2d 57 (2008). We review de novo the proper interpretation of a statute. People v. Martin , 271 Mich. App. 280, 286–287, 721 N.W.2d 815 (2006). The determination regarding whether a jury instruction is applicable to the facts of a case is reviewed for an abuse of discretion; however, questions of law relative to jury instructions are reviewed de novo. People v. Gillis , 474 Mich. 105, 113, 712 N.W.2d 419 (2006).

The primary goal when interpreting a statute is to ascertain and give effect to the intent of the Legislature. People v. Williams , 475 Mich. 245, 250, 716 N.W.2d 208 (2006). To determine legislative intent, we first examine the specific language of the statute. People v. Lively , 470 Mich. 248, 253, 680 N.W.2d 878 (2004). The Legislature is presumed to have intended the meaning that it plainly expressed. Rowland v. Washtenaw Co. Rd. Comm. , 477 Mich. 197, 219, 731 N.W.2d 41 (2007). Judicial construction is only appropriate if reasonable minds could differ concerning the statute’s meaning. People v. Warren , 462 Mich. 415, 427, 615 N.W.2d 691 (2000).

MCL 257.625 provides, in pertinent part, as follows:

(1) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person is operating while intoxicated. As used in this section, "operating while intoxicated" means any of the following:

(a) The person is under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance [OUIL].

(b) The person has an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine [UBAL] ....

* * *

(3) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state when, due to the consumption of alcoholic liquor, a controlled substance, or other intoxicating substance, or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance, the person’s ability to operate the vehicle is visibly

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