            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     April 23, 2020
               Plaintiff-Appellee,

v                                                                    No. 345633
                                                                     Monroe Circuit Court
TODD MATTHEW MOYER,                                                  LC No. 18-244207-FH

               Defendant-Appellant.


Before: RIORDAN, P.J., and FORT HOOD and SWARTZLE, JJ.

PER CURIAM.

        This case involves the tragic death of a woman and her young child when defendant rear-
ended them on the expressway, resulting in a multi-vehicle accident. Defendant, who was
traveling at high speed and texting on his cellphone, failed to brake before the impact. The jury
convicted defendant of two counts of reckless driving causing death. On appeal, defendant argues
that the trial court erroneously failed to instruct the jury that another driver was an intervening
cause between his conduct and the victims’ deaths. In addition, defendant argues that the
prosecutor violated his due-process rights because police did not preserve two of the other vehicles
involved in the crash. Because we discern no merit in defendant’s arguments, we affirm.

                                       I. BACKGROUND

        Defendant’s convictions arise from the deaths of Gladys Johnson and her five-year-old
daughter on July 14, 2017. On that afternoon, Johnson was traveling southbound on US-23, a two-
lane highway, when her vehicle was involved in a multi-vehicle accident. Johnson was driving a
Hyundai Elantra and defendant was driving a Dodge pickup truck directly behind her vehicle.
Other vehicles involved in the collision included a Cadillac driven by Michael Huffer and a Toyota
Solara operated by Chase Miller. Keith Godfrey and Harvey Moskowitz were also traveling
southbound on US-23 that day. Although their vehicles did not sustain any damage, from their
vantage points ahead of and behind the collision, Godfrey and Moskowitz claimed to have
witnessed some of the events that occurred before impact.

      In the minutes before the accident, the vehicles were approaching a construction zone that
would ultimately shut down the right lane of southbound US-23. As part of this lane closure,


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traffic was required to merge into the left lane. Moments before the collision, Godfrey, Huffer,
Johnson, defendant, and Moskowitz, in that order, were traveling in the left lane of southbound
US-23. Chase Miller was traveling in the right lane.

        Several witnesses testified that before the fatal collision, the surrounding traffic had
reduced its speed in anticipation of the impending right-lane closure. At least three witnesses
recalled that the merging traffic was unusually polite and orderly. Miller testified that he had
reduced his speed considerably as he approached the lane closure. This testimony was
corroborated by Patricia Huffer, who testified that consistent with the other drivers, Miller was
operating his vehicle in a polite fashion and he had reduced his speed to merge in behind the
vehicle her husband was driving. Additionally, Miller testified that he saw that Johnson
acknowledged his presence, gestured to him, and then reduced her speed to allow him to merge in
front of her.

         Howard Moskowitz, who testified for the defense, claimed that he had been traveling in
the left lane, behind defendant’s pickup truck, for about two or three miles. He further testified
that the traffic was moving fast, about 70 to 75 mph, but it was slowing. Moskowitz claimed that
he saw an 18-wheel semitruck in the right lane of travel. He also claimed that he saw in his mirror
a “dot” coming toward him in the right lane, moving a lot faster than he was. Moskowitz testified
that the vehicle was traveling 75 to 80 mph. According to Moskowitz, after this vehicle passed
him, it turned sharply to the left in front of the Johnson vehicle. Moskowitz admitted that he never
saw any impact between the Johnson and Miller vehicles. He also did not see defendant’s pickup
truck rear-end the Johnson vehicle, a fact that was undisputed. Immediately after the accident,
while speaking to a police officer, Moskowitz did not mention the presence of a semitruck in the
right lane.

        Moskowitz’s testimony was inconsistent with virtually every other witness who was
traveling on US-23 near the time of the accident. No other witness mentioned the presence of the
semitruck. Indeed, the three witnesses in closest proximity to the events testified that there were
no other vehicles in the right lane. Further, three witnesses testified that the traffic had slowed
considerably. Both Patricia Huffer and Miller testified that the Miller vehicle had slowed as well.
Moskowitz also admitted that from his vantage point, he never actually saw a collision. Further,
Moskowitz’s claim that the Miller vehicle was traveling at a high rate of speed and then turned
sharply into the left lane was inconsistent with the unrefuted expert opinion of the accident
reconstructionist who testified that the tire mark left by the Miller vehicle was not consistent with
a vehicle being driven in the manner suggested by Moskowitz.

        When the first police officer at the scene asked defendant if he had been using his cell
phone before the accident, defendant replied, “yes,” and then hung his head down. Police obtained
access to defendant’s cellphone, and discovered that he sent a text message to his friends
immediately before the fatal crash. Within minutes after the crash, defendant texted his friends:
“Just got accident,” “Not coming. Car is totoaled [sic].” One minute later, defendant texted his
friends: “OMG. I’m f*cke [sic]. Two ppl killed.” And then two minutes later, he texted to this
same group, “I’m going to jail.”

       After the accident, the police secured, photographed, and measured Miller’s vehicle. When
they completed their investigation, the police released the vehicle because they determined that it


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was not relevant to the criminal charges against defendant. Specifically, the police concluded that
Miller’s operation of his vehicle did not precipitate the multi-vehicle collision. Deputy Brian
Quinn, an accident reconstructionist, testified that he examined all of the vehicles at the scene. He
explained that he did not request the event data recorder (EDR) from the Miller vehicle because
there was no airbag deployment and, thus, it was unlikely that the EDR was activated. Sergeant
David Raymond testified that he did not attempt to recover the EDR from the Miller vehicle
because there was no reason to believe that information from Miller’s EDR would be relevant. He
noted that there was no evidence that Miller was on his phone or that the operation of his vehicle
caused the collision.

        At trial, the prosecutor argued that the multi-car collision occurred when defendant,
traveling 78 mph while texting on his cell phone, rear-ended the Johnson vehicle. Defendant
admitted that he rear-ended the Johnson vehicle. He also admitted that he was using his cell phone
at different points of his drive that day. He argued, however, that there was no proof that he was
using his phone at the time of the collision. Instead, defendant argued that Miller caused the chain
of events that led to the Johnsons’ deaths when he failed to merge into the left lane of travel in an
orderly fashion and, instead, cut off the Johnson vehicle.

       The jury convicted defendant of two counts of reckless driving causing death, MCL
257.626(4), for which the trial court sentenced him to concurrent prison terms of 86 months to 15
years each. This appeal followed.

                                           II. ANALYSIS

                                     A. INTERVENING ACTS

       Defendant first argues that the trial court erroneously denied his request to instruct the jury
regarding the allegedly intervening acts of Miller. We find no instructional error warranting relief.

        This Court reviews de novo jury instructions that involve questions of law, but reviews for
an abuse of discretion a trial court’s decision that a jury instruction is applicable to the facts of the
case. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006). A defendant is entitled to have
a properly instructed jury consider the evidence against him. People v Riddle, 467 Mich 116, 124;
649 NW2d 30 (2002). The trial court must instruct the jury on all the elements of the charged
offense, as well as on material issues, defenses, and theories that are supported by the evidence.
People v Rodriguez, 463 Mich 466, 472-473; 620 NW2d 13 (2000). A trial court is only required
to give a requested instruction if it is warranted by the evidence presented. Riddle, 467 Mich at
124. “Even if the instructions are imperfect there is no error if they fairly presented the issues to
be tried and sufficiently protected the defendant’s rights.” People v Milton, 257 Mich App 467,
475; 668 NW2d 387 (2003).

        The trial court instructed the jury according to M Crim JI 15.16 as follows:

                The defendant is charged in Counts I and II with the crimes of Reckless
        Driving Causing Death. To prove these charges, the prosecutor must prove each of
        the following elements – each of the following elements beyond a reasonable doubt:




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              First, that the defendant drove a motor vehicle on a highway or other place,
       open to the public.

              Second, that the defendant drove the motor vehicle in willful or wanton
       disregard for the safety of persons or property. Willful or wanton disregard means
       more than simple carelessness, but does not require proof of an intent to cause harm.
       It means knowingly disregarding the possible risks to the safety of people or
       property.

               Third, that the defendant’s operation of the vehicle caused the victim’s
       death. To cause the victim’s death, the defendant’s operation of the vehicle must
       have been a factual cause of the death, that is, but for the defendant’s operation of
       the vehicle, the death would not have occurred. In addition, operation of the vehicle
       must have been a proximate cause of the death, that is, death or serious injury must
       have been a direct and natural result of operating the vehicle.

The trial court’s instruction included the causation requirements of the charged offenses of reckless
driving causing death. That is, the trial court properly instructed the jury that it could only convict
defendant of the charged offenses if it found that defendant’s conduct was both a factual and a
proximate cause of the Johnsons’ deaths.

       Defendant asserts, however, that the trial court should have instructed the jury regarding
Miller’s allegedly intervening and superseding actions. At trial, defendant argued that Miller’s
attempt to merge into the left lane of travel broke the causal link between his conduct and the
Johnsons’ deaths. Defendant requested the following special jury instruction:

       Defendant Moyer claims that a 3rd party, Chase Miller, was negligent in causing
       the deaths of Gladys Johnson and [ZK] Johnson. Whether a 3rd party’s conduct
       rendered the defendant’s conduct too remote to be a proximate cause of the deaths
       is for you to decide. If you find that this 3rd party was negligent, you may only
       consider that negligence in deciding whether Defendant Moyer’s conduct was a
       substantial cause of the accident.

The trial court was not required to instruct the jury in the manner suggested by defendant. The
instructions given, particularly M Crim JI 15.16, accurately explained the proximate-cause
standard. In any event, as explained below, the evidence at trial did not support the requested
instruction because, as a matter of law, Miller’s conduct could not be considered an intervening
and superseding cause of the Johnsons’ deaths.

        Defendant’s claim of instructional error is related to the causation element of the charged
offenses. Causation is an issue for the finder of fact. People v McKenzie, 206 Mich App 425, 431;
522 NW2d 661 (1994). The causation element of a criminal offense encompasses two
components: factual cause and proximate cause. People v Feezel, 486 Mich 184, 194; 783 NW2d
67 (2010). “Factual causation exits if a finder of fact determines that ‘but for’ defendant’s conduct
the result would not have occurred.” Id. at 194-195. At a pretrial hearing, defendant conceded
that the impact of his vehicle caused the Johnsons’ deaths. Factual causation alone, however, is



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not sufficient to find a defendant criminally responsible. Id. 195. The prosecutor was also required
to demonstrate that the defendant’s actions were “a proximate cause” of the victims’ deaths. Id.

        A defendant’s conduct qualifies as a proximate cause when the victim’s injury or death is
a direct and natural result of the defendant’s actions. “Proximate causation is a legal construct
designed to prevent criminal liability from attaching when the result of the defendant’s conduct is
viewed as too remote or unnatural.” Id. at 195. Accordingly, proximate cause will be lacking “[i]f
the finder of fact determines that an intervening cause supersedes a defendant’s conduct such that
the causal link between the defendant’s conduct and the victim’s injury was broken.” Id. (cleaned
up). Under that circumstance, criminal liability cannot be imposed. Id.

        “Whether an intervening cause supersedes a defendant’s conduct is a question of
reasonable foreseeability.” Id. Intervening acts of ordinary negligence, because they are
reasonably foreseeable, are insufficient to constitute a superseding cause that severs proximate
causation. Id. By contrast, gross negligence or intentional misconduct can be sufficient to break
the causal connection between a defendant’s conduct and a victim’s death or injury. Id. But gross
negligence is not merely an enhanced version of ordinary negligence. It encompasses those actions
that evidence a “wantonness and disregard for the consequences which may ensue.” Id. Indeed,
“wantonness” includes conduct “indicating that the actor is aware of the risks but indifferent to the
results.” Id.

         Applying the foregoing principles, the instruction requested by defendant would have been
warranted only if the evidence was sufficient for the jury to conclude that Miller’s conduct
constituted gross negligence. The evidence, however, did not support defendant’s position that
Miller’s operation of his vehicle was grossly negligent. As explained above, several witnesses
testified that before the collision, the surrounding traffic had reduced its speed in anticipation of
the impending right-lane closure, and the merging traffic was unusually polite and orderly. The
testimony given by Miller, as well as that of Patricia Huffer, indicated that Miller was not operating
his vehicle in an imprudent manner, let alone a manner that could be considered grossly negligent.

        From the testimony and evidence in the record, a jury could not conclude that Miller’s
action of merging in anticipation of a lane closure, even in the manner described by Moskowitz,
constituted gross negligence. Miller’s conduct was not so unforeseeable that it should sever the
connection between defendant’s conduct and the victims’ deaths. Indeed, all witnesses agreed that
appropriate signage beginning a couple of miles in advance warned motorists of the right-lane
closure and the need to merge into the left lane. Thus, it was foreseeable that motorists would be
merging from the right to the left lane. Further, the evidence of defendant’s conduct indicated that
mere moments before rear-ending the Johnson vehicle, defendant was traveling at 78 mph and
texting from his cell phone. In addition, there was no evidence that defendant took any evasive
maneuvers before impact. He neither reduced his speed, applied his breaks, nor changed his course
of travel to avoid rear-ending the Johnson vehicle.

         Reasonable minds could not logically conclude that Miller’s actions while merging into
the left lane in anticipation of the right lane’s closure were grossly negligent or in “wanton
disregard” of the consequences. At most, the manner in which Miller operated his vehicle might
rise to the level of ordinary negligence. Ordinary negligence is considered reasonably foreseeable
and is thereby deemed insufficient to constitute a superseding cause that would thereby sever the


                                                 -5-
causal connection between defendant’s conduct and the victims’ deaths. Because the record does
not show that Miller’s actions rose to the level of gross negligence, which is required to constitute
an intervening and superseding cause sufficient to break the chain of causation, the trial court
properly declined to give the special instruction requested by defendant.

                              B. PRESERVATION OF EVIDENCE

        Defendant next argues that he is entitled to appellate relief because the prosecutor failed to
preserve potentially exculpatory evidence, specifically, the Miller and Johnson vehicles. In a
pretrial motion, defendant requested that the trial court instruct the jury that it could infer that
evidence from those vehicles would have been favorable to defendant. The trial court denied
defendant’s request based on its finding that the Johnson vehicle was still available for defendant’s
inspection and because there had been no showing of bad faith when the police released the Miller
vehicle to its owner. On appeal, defendant argues that the prosecutor violated his rights to due
process by failing to preserve the vehicles. He further contends that the trial court erred by failing
to give an adverse-inference instruction. We find no merit to defendant’s claims of error.

        In Arizona v Youngblood, 488 US 51, 57; 109 S Ct 333; 102 L Ed 2d 281 (1988), the United
States Supreme Court held that “unless a criminal defendant can show bad faith on the part of the
police, failure to preserve potentially useful evidence does not constitute a denial of due process
of law.” Consistent with this ruling, this Court held in People v Hank, 276 Mich App 91, 95; 740
NW2d 530 (2007), that “in order to warrant reversal on the claimed due process violation, a
defendant must prove that the missing evidence was exculpatory or that law enforcement personnel
acted in bad faith.” In this case, defendant has not demonstrated that access to the vehicles would
have yielded exculpatory evidence or that law enforcement acted in bad faith when it released the
Miller vehicle to it owner.

       At the outset, defendant has failed to show that the Johnson vehicle was destroyed or was
otherwise unavailable for inspection. Indeed, the prosecutor represents that defendant inspected
the Johnson vehicle and that it remains available for further inspection. To the extent that
defendant argues that the evidentiary value of the Johnson vehicle was compromised by the failure
of the police to properly store the vehicle, defendant has provided nothing to substantiate this
claim. Ultimately, on multiple fronts, defendant has not established the factual predicate necessary
to support any request for relief related to the Johnson vehicle.

        With respect to the Miller vehicle, the record indicates that this vehicle was released only
after the police determined that continued storage and preservation were unnecessary because the
vehicle did not represent relevant evidence. The police concluded that Miller’s operation of his
vehicle did not precipitate the multi-vehicle collision. Given that the vehicle was secured,
photographed, and measured, and the absence of information that the Miller vehicle represented
relevant evidence, defendant has failed to establish that the police or the prosecutor acted in bad
faith when they released the vehicle to its owner.

        Defendant has also failed to sustain his burden of showing that an examination of the Miller
vehicle would have yielded exculpatory evidence. Defendant simply asserts that the evidence was
potentially exculpatory. He provides nothing to substantiate this assertion. His declaration that
the Miller vehicle could have exonerated him is mere speculation. Instead, the existing record


                                                 -6-
demonstrates that an examination of the Miller vehicle would not have provided evidence
exonerating defendant or even helpful to his defense. Defendant has failed to demonstrate that the
Miller vehicle was exculpatory, potentially exculpatory, or that the police acted in bad faith.
Consequently, he has not established a due-process violation.

       Defendant also argues that the trial court erred by denying his request for an adverse-
inference instruction regarding the Miller and Johnson vehicles. This argument is without merit.

        “Michigan courts have long recognized that when material evidence in control of a party
is not produced at trial, the opposing party is entitled to an adverse inference instruction.” People
v Cress, 250 Mich App 110, 157 n 27; 645 NW2d 669 (2002), rev’d on other grounds 468 Mich
678 (2003). Such an instruction is only permitted, however, when the prosecutor acts in bad faith.
Id. at 157-158. There is no evidence that the sheriff’s department or the prosecutor acted in bad
faith when it released the Miller vehicle to its owner. Further, there is no support for the
proposition that the Miller vehicle contained exculpatory evidence or that the sheriff’s department
knew that it contained exculpatory evidence when it released the vehicle. Accordingly, the trial
court properly declined to instruct the jury that any evidentiary material related to the vehicle
would have been favorable to defendant.

       Affirmed.

                                                              /s/ Michael J. Riordan
                                                              /s/ Karen M. Fort Hood
                                                              /s/ Brock A. Swartzle




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