People v. Moseler, Docket No. 137266

• Decision Date: 01 November 1993
• Docket Number: Docket No. 137266
• Citation: 202 Mich.App. 296,508 N.W.2d 192
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dorothy Jane MOSELER, a/k/a Dorothy Jane Moseller, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 192

508 N.W.2d 192

202 Mich.App. 296

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dorothy Jane MOSELER, a/k/a Dorothy Jane Moseller Defendant-Appellant.

Docket No. 137266.

Court of Appeals of Michigan.

Submitted Sept. 8, 1993, at Grand Rapids.

Decided Nov. 1, 1993, at 9:30 a.m.

Released for Publication Dec. 3, 1993.

[202 Mich.App. 297] Patrick W. Priest, Three Rivers, for defendant-appellant on appeal.

Before MURPHY, P.J., and MacKENZIE and RICHARD ALLEN GRIFFIN, JJ.

MacKENZIE, Judge.

Following a jury trial, defendant was convicted of involuntary manslaughter with a motor vehicle, M.C.L. § 750.321; M.S.A. § 28.553, and was sentenced to six to fifteen years' imprisonment. She appeals as of right.

This case arises out of a fatal traffic accident that occurred when defendant, driving her car at a high rate of speed after drinking six beers, ran four red lights and struck a vehicle driven by Marion Pusley. Pusley died as a result of the accident. Defendant testified that after drinking the six beers, she drove to a park to find her boyfriend. She and her boyfriend got into an argument, and she inadvertently backed her car into his car, at which time he became angry, called her "a bitch," and threatened to "kick her ass." Defendant drove off with her boyfriend in pursuit. Defendant testified that her boyfriend had been violent toward her in the past and that she feared he would carry out his threat to "kick her ass"; therefore, she fled at excessive rates of speed and ignored traffic signals, causing Pusley's death.

Defendant first argues that there was insufficient evidence admitted at trial to support her conviction of involuntary manslaughter with a motor vehicle. We disagree.

In determining a question regarding the sufficiency of evidence, we review the evidence in a light most favorable to the prosecution to determine whether a rational trier of fact could conclude that the elements of the crime were proven beyond a reasonable doubt. People v. Wolfe, 440 Mich. 508, 489 N.W.2d 748 (1992); People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979). Involuntary manslaughter is established if the defendant acts in a grossly negligent, wanton, or reckless manner, causing the death of another. People v. Rettelle, 173 Mich.App. 196, 433 N.W.2d 401 (1988); People v. Harris, 159 Mich.App. 401, 406 N.W.2d 307 (1987). Gross negligence is required to sustain defendant's conviction. People v. Zak, 184 Mich.App. 1, 457 N.W.2d 59 (1990). Having reviewed the evidence in a light most favorable to the prosecution, we conclude that a rational trier of fact could find that defendant had been grossly negligent in failing to stop at four red traffic lights, thereby causing the collision that resulted in decedent's death. Defendant's argument that she feared for her own safety because she was being chased by her boyfriend in his vehicle is unpersuasive. As the trial judge stated:

[I]f you were in fear, you can always just stop at red lights. He has got to be in his car. If he does step out of his car, at least you could look both ways before you go through a red light. You don't have to go 50, 60 miles an hour endangering everybody. It takes some time to leave a vehicle, to close a car door and walk up to a car You could have gone to a police station or sheriff's department or pulled up and start honking a horn. There are many different ways you could have dealt with this, but instead you are driving at this very high rate of speed going through red light after red light at 45, 50, 55 miles an hour--somewhere in those ranges--and endangering someone.

                in front.   Your car could be locked.   You could look and drive on
                

We find that a rational trier of fact could find that the elements of gross negligence were satisfied in this case and therefore decline to disturb the jury's verdict. See generally In re Summerville, 148 Mich.App. 334, 339, 384 N.W.2d 152 (1986).

Defendant next argues that she was denied the effective assistance of counsel because her attorney failed to introduce expert testimony regarding the "battered women's syndrome" to show that her actions were not grossly negligent, but rather the result of duress. Because defendant failed to request an evidentiary hearing concerning her claim of ineffective assistance of counsel, our review is limited to errors apparent on the record. People v. Wilson, 196 Mich.App. 604, 612, 493 N.W.2d 471 (1992). The record in this case is clear that although defendant was being chased by her boyfriend, she was the one who drank six beers before confronting him, she was the one who backed her car into his car, and she was the one who elected to drive in excess of the speed limit and to run red lights rather than adopt any of the other options available to her. On the basis of the existing record, we do not find any error in counsel's trial strategy that prejudiced defendant's case. Defendant's claim of ineffective assistance of counsel fails on this record.

Defendant next argues that the trial court erred in refusing to instruct the jury concerning duress. We disagree. Duress is not a valid defense to homicide. People v. Dittis, 157 Mich.App. 38, 41, 403 N.W.2d 94 (1987).

Because we have found no error requiring reversal as a result of defendant's individual claims, her argument that the cumulative effect of the alleged errors requires reversal is without merit.

Defendant next claims the trial court erred in scoring five points for offense variable 13 for psychological injury to the victim's fiancee. We disagree. The scoring of five points for offense variable 13 is proper where there is "[s]erious psychological injury to the victim or the victim's family necessitating professional treatment." "Victim" is defined as anyone who was placed in danger of injury or loss of life. Here, the decedent's fiancee was a passenger in the car decedent was driving, was injured and transported to the hospital after the accident, and later sought psychological counseling after having nightmares and sleeping difficulties. The decedent's fiancee was therefore a victim, and we find the scoring of five points for offense variable 13 appropriate.

Defendant's last argument is that her sentence of six to fifteen years' imprisonment is disproportionate. People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990). The minimum sentence range provided by the sentencing guidelines in this case was two to seven years. Being within the guidelines' range, defendant's sentence is presumptively proportionate. People v. Broden, 428 Mich. 343, 354-355, 408 N.W.2d 789 (1987). Even though this was defendant's first offense, the fact that her actions needlessly cost the life of another human should not be disregarded. We find no abuse of discretion in the sentence imposed.

Affirmed.

MURPHY, P.J., concurred.

RICHARD ALLEN GRIFFIN, Judge (concurring in part and dissenting in part ).

I concur in that portion of the majority's opinion that affirms defendant's conviction. However,...