People v. Solmonson

• Decision Date: 04 March 2004
• Docket Number: Docket No. 245178.
• Citation: People v. Solmonson, 261 Mich.App. 657, 683 N.W.2d 761 (Mich. App. 2004)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Danny Boyd SOLMONSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan

683 N.W.2d 761

261 Mich.App. 657

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Danny Boyd SOLMONSON, Defendant-Appellant.

Docket No. 245178.

Court of Appeals of Michigan.

Submitted February 4, 2004, at Grand Rapids.

Decided March 4, 2004.

Approved for Publication April 29, 2004, at 9:05 a.m.

Released for Publication July 7, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, and T. Lynn Hopkins, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Randy E. Davidson), for the defendant on appeal.

Before: MURRAY, P.J., and MURPHY and MARKEY, JJ.

PER CURIAM.

Defendant appeals by right his convictions following a jury trial of operating a motor vehicle while under the influence of intoxicating liquor or while having an alcohol content of 0.10 grams or more per 100 milliliters of blood, third offense, M.C.L. §257.625(1), (8); operating a motor vehicle while his license was suspended or revoked, second offense, M.C.L. §257.904(1), (3)(b); and possessing open intoxicants in a motor vehicle on a highway, M.C.L. §257.624a. Defendant also appeals his sentence of two to ten years imprisonment for OUIL, third offense, enhanced as a third felony offender, M.C.L. §769.11, because it exceeded the sentence guidelines range of zero to seventeen months. We affirm defendant's convictions because they were supported by sufficient evidence and because defendant has failed to establish that his trial counsel was constitutionally deficient. We also affirm defendant's sentence for his OUIL conviction because the trial court did not clearly err as matter of fact or law by finding defendant's criminal history was an objective, verifiable, substantial, and compelling reason to depart from the sentencing guidelines range and because the sentence imposed was among the range of permissible principled outcomes.

The testimony at trial established that the police found defendant unconscious in the driver's seat of a Chevrolet Cavalier station wagon with an open can of beer between his legs at 3:45 a.m. The car was parked just outside the white fog lines but was still on the road pavement. Although the engine was off, the keys were in the ignition and the engine was still warm. Defendant was alone but there were five full cans of cold beer on the passenger seat and one empty can in the back. The police found no one else in the area.

When two deputy sheriffs woke defendant and identified themselves, defendant replied, "You guys are f___ing ass holes." The deputies testified that defendant tried to turn the ignition key but one of the deputies prevented him from doing so. Defendant failed sobriety tests of reciting the alphabet and counting backwards. Defendant told the deputies that, "This is bullshit," and to just take him to "f___ing jail." Defendant also told the deputies that he was coming from a neighboring county, where he had been working, that he had started drinking at 6:00 p.m. that night, and that he had consumed six beers. Both deputies testified without objection that defendant never denied being the driver of the Cavalier.

The deputies honored defendant's request to be taken to jail and obtained a search warrant for two vials of defendant's blood, which were mailed to the Michigan State Police crime laboratory. A state police crime lab forensic scientist testified that she tested the blood samples and obtained results of 0.21 and 0.22 grams per one hundred milliliters of blood.

Defense counsel acknowledged that defendant was drunk and belligerent, and that defendant's driver's license was revoked, but he also claimed defendant was not operating the vehicle. Defense counsel theorized that someone else had driven defendant to where the police found him but he presented no evidence to support this theory. Defendant did not testify.

Defendant first argues that insufficient evidence supported his convictions. We disagree. This Court reviews de novo a claim that the evidence at trial was insufficient to support a conviction. People v. Herndon, 246 Mich.App. 371, 415, 633 N.W.2d 376 (2001). We must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found all the elements of the offense proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); People v. Wolfe, 440 Mich. 508, 515, 489 N.W.2d 748 (1992), mod. 441 Mich. 1201, 489 N.W.2d 748 (1992). All the elements of an offense may be proved beyond a reasonable doubt by circumstantial evidence and reasonable inferences therefrom. People v. Nowack, 462 Mich. 392, 400, 614 N.W.2d 78 (2000). Further, when reviewing claims of insufficient evidence, this Court must make all reasonable inferences and resolve all credibility conflicts in favor of the jury verdict. Id.; Wolfe, supra at 514-515, 489 N.W.2d 748. "`Even in a case relying on circumstantial evidence, the prosecution need not negate every reasonable theory consistent with the defendant's innocence, but need merely introduce evidence sufficient to convince a reasonable jury in the face of whatever contradictory evidence the defendant may provide.'" People v. Hardiman, 466 Mich. 417, 423-424, 646 N.W.2d 158 (2002), quoting People v. Konrad, 449 Mich. 263, 273 n. 6, 536 N.W.2d 517 (1995). Defendant relies on People v. Wood, 450 Mich. 399, 404-405, 538 N.W.2d 351 (1995), and People v. Burton, 252 Mich.App. 130, 651 N.W.2d 143 (2002), to argue that he was not "operating" the parked car when the police found him unconscious in the driver's seat, and there was reasonable doubt that he drove to that location while intoxicated. Defendant's reliance on Wood and Burton is misplaced. In Wood our Supreme Court limited People v. Pomeroy (On Rehearing), 419 Mich. 441, 444, 355 N.W.2d 98 (1984), which held, "a person sleeping in a motionless car cannot be held to be presently operating a vehicle while sleeping." In Burton the prosecutor charged that defendant was attempting to drive while intoxicated at the time the police found him unconscious in his lawfully parked vehicle with its engine running. This Court held that the prosecution failed to prove its theory that the unconscious defendant specifically intended to operate the vehicle while intoxicated at some point in the future but the police intervened before he could do so. Burton, supra at 143-144, 651 N.W.2d 143. But here, the prosecutor did not claim that the evidence established defendant was operating the vehicle at the point the police found him unconscious or that the police found defendant attempting to operate a vehicle while intoxicated. Here, the prosecutor argued that the evidence at trial presented a compelling circumstantial case that defendant had driven while intoxicated to the location where the police found him.

Although defense counsel argued below that someone else drove defendant to where the police found him, he presented no evidence at trial to support that theory. Moreover, the prosecution need not disprove all theories consistent with defendant's innocence; it need only introduce sufficient evidence to convince a reasonable jury of its theory of guilt despite the contradictory theory or evidence a defendant may offer. Hardiman, supra at 423-424, 646 N.W.2d 158; Konrad, supra at 273 n. 6, 536 N.W.2d 517. Also, the trial court specifically instructed the jury regarding the element of "operating" that a person "sleeping in a motionless car ... cannot be held to be presently operating a vehicle." Thus, because jurors are presumed to follow the trial court's instructions, People v. Dennis, 464 Mich. 567, 581, 628 N.W.2d 502 (2001), the jury must have concluded from the circumstantial evidence and reasonable inferences that the prosecutor met his burden of proving defendant was operating the vehicle in an intoxicated state before the police arrived. Because this Court must draw all reasonable inferences in favor of the jury verdict, Nowack, supra at 400, 614 N.W.2d 78, defendant's conviction must be affirmed.

Next, defendant argues he was denied a fair trial because his trial counsel failed to object to the use of his silence as a tacit admission of guilt. We disagree.

Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise. People v. LeBlanc, 465 Mich. 575, 578, 640 N.W.2d 246 (2002). In order to overcome this presumption, defendant must first show that counsel's performance was deficient as measured against an objective standard of reasonableness under the circumstances and according to prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); People v. Pickens, 446 Mich. 298, 312-313, 521 N.W.2d 797 (1994). Second, defendant must show that the deficiency was so prejudicial that he was deprived of a fair trial such that there is a reasonable probability that but for counsel's unprofessional errors the trial outcome would have been different. Id. at 314, 521 N.W.2d 797; People v. Toma, 462 Mich. 281, 302-303, 613 N.W.2d 694 (2000).

Defendant argues that allowing testimony that he never denied being the driver of the Cavalier violated the rule of People v. Bigge, 288 Mich. 417, 285 N.W. 5 (1939). Bigge, as modified by MRE 801(d)(2)(B), precludes the admission of a defendant's silence in the face of an accusation as an adoptive or tacit admission unless the defendant has manifested his adoption or belief in its truth. People v. Hackett, 460 Mich. 202, 213-215, n. 6, 596 N.W.2d 107 (1999); People v. McReavy, 436 Mich. 197, 213, 462 N.W.2d 1 (1990). Although defendant does not directly argue his constitutional rights were violated, the Bigge decision rested upon "constitutional limitations" and the right of fair trial and due process of law. Bigge, supra at 421, 285 N.W. 5.

A defendant's right to due process guaranteed by the ...