                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 21, 2015
               Plaintiff-Appellee,

v                                                                  No. 319725
                                                                   Wayne Circuit Court
JOSE ALFREDO CORTES-AZCATL,                                        LC No. 13-004761-FH

               Defendant-Appellant.


Before: HOEKSTRA, P.J., and MARKEY and DONOFRIO, JJ.

PER CURIAM.

       Defendant appeals by right his jury trial conviction of operating a motor vehicle while
intoxicated causing death, MCL 257.625(4). Defendant was sentenced to 5 to 15 years’
imprisonment for his conviction. We affirm the conviction but remand for resentencing.

                                            I. FACTS

       This case is the result of a deadly automobile accident that occurred in Woodhaven
around 11:00 p.m. on May 14, 2013. A Ford Focus, travelling between 47 to 53 miles per hour,
driven by Logan Harbeck, hit a Saturn van, travelling between 15 and 22 miles per hour, driven
by defendant. Defendant was travelling west on Van Horn Road and turning left into
Woodhaven Place Mobile Home Park; Harbeck was travelling east on Van Horn Road.
Harbeck’s vehicle “t-boned” defendant’s vehicle on the passenger side, where defendant’s
fiancée, Laura Erwin, sat. Harbeck and his passenger, Jordan Taylor, were injured in the crash.
Defendant sustained a head injury, and Erwin died in the accident.

       Taylor testified that the Saturn did not signal at all before turning into the mobile home
park. Taylor and Harbeck both testified that the Ford Focus’ headlights were on. Defendant
maintained that he could not see the Ford Focus or any other vehicle travelling east on Van Horn
Road before he turned, indicating that the Ford Focus did not have its headlights on.

       Although the headlights were destroyed in the accident, Kevin Lucidi, traffic crash
reconstructionist for the Michigan State Police, testified that, in his expert opinion, the Ford
Focus’s headlights were on at the time of impact. Lucidi examined the one light that was not
destroyed, the front left marker lamp, and it showed evidence of “hot shock.” He explained hot
shock as what happens when “the Tungsten that . . . produces the light . . . stretches [at impact]
because the filament is hot.” The filament is hot when it’s illuminated, which makes it pliable.

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Therefore, evidence of hot shock suggests that the lights were on at the time of impact. The front
left marker lamp functions “at least as a parking lamp. Which means it would be illuminated in
the parking position or the headlight position.” Lucidi explained that, in his experience, it was
not unusual to find evidence of hot shock in vehicles where the headlight switch was turned to
off. He testified that there are various reasons that this might occur, including that the driver of
the vehicle, the emergency personnel, or the wrecker driver could have turned the lights off
before the vehicle was towed.

        At the crash site, defendant told Sergeant Dennis DeWeese that he had drunk beer.
DeWeese smelled intoxicants on defendant’s breath. Due to defendant’s head injury, DeWeese
declined to request that defendant perform field sobriety tests but blood analysis later revealed
that defendant had a blood alcohol level of .15 grams of alcohol per 100 milliliters of blood.

                            II. SUFFICIENCY OF THE EVIDENCE

        Defendant argues that there was insufficient evidence for the jury to find that he
proximately caused Erwin’s death because the evidence does not support beyond a reasonable
doubt that his intoxication was the cause of the accident. Although defendant admits that he was
intoxicated at the time of the accident, he argues that there was insufficient evidence for a jury to
find that the Ford Focus’s headlights were on at the time of the accident. Defendant argues that
the lack of headlights was the cause of the accident and that the prosecution failed to prove,
beyond a reasonable doubt, that the headlights were on at the time of the accident. While the
prosecution’s expert, Lucidi, opined that the Ford Focus’s headlights were on at the time of the
accident, the basis of the opinion that one intact light extracted from one of the headlights
exhibited “hot shock” is unreliable.

        This Court reviews the record de novo when addressing a claim of insufficient evidence.
People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). The Court construes the
evidence in the light most favorable to the prosecutor in determining if a rational trier of fact
could find that the essential elements of the crime were proven beyond a reasonable doubt. Id. at
196; People v Nowack, 462 Mich 392, 399; 614 NW2d 78 (2000).

         To convict a defendant of operating while intoxicated causing death, the prosecution
must prove beyond a reasonable doubt that the defendant (1) operated a motor vehicle (2) on a
highway or other place open to the public (3) while intoxicated; (4) the defendant voluntarily
made the decision to drive knowing that he had consumed alcohol and might be intoxicated, and
(5) defendant’s operation of the motor vehicle caused the death. MCL 257.625; People v Feezel,
486 Mich 184, 193; 783 NW2d 67 (2010). To prove that the defendant’s operation of the motor
vehicle caused the death, the prosecution must establish that the defendant’s conduct was a
proximate cause of the accident or victim’s death. Id. at 195. “If 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, proximate cause is lacking and criminal
liability cannot be imposed.” Id. (quotations omitted).

       Defendant’s argument fails for two reasons. First, Lucidi’s testimony was just one part of
the evidence that supported the prosecution’s theory that the Ford Focus’s headlights were on.
Taylor and Harbeck, the passenger and the driver in the Ford Focus, testified that the headlights

                                                -2-
were on. Defendant testified that he could not see the Ford Focus approaching. The jury plainly
determined that Taylor and Harbeck were credible, and defendant was not. This Court must
view all evidence in a light most favorable to the prosecution, drawing “all reasonable inferences
and [making] credibility choices in support of the jury verdict.” Nowack, 462 Mich at 400.

         Second, defendant asks this Court to rely on information that was not before the jury in
order to find that there was insufficient evidence to convict him. Defendant did not cross-
examine Lucidi regarding the phenomenon of false positive results during hot shock tests.
Therefore, defendant’s theory that Lucidi’s test results were unreliable was not presented to the
jury. Lucidi did, however, testify to other inconsistencies that might suggest to the jury that the
headlights were off. For example, Lucidi testified that he observed the headlight switch in the
off position at the towing station after the accident. He also testified that there were various
reasons that this might occur, including that the driver of the vehicle, the emergency personnel,
or the wrecker driver could have turned the lights off before the vehicle was towed. Nonetheless,
Lucidi indicated that he had 18 years of experience reconstructing crash scenes, and from this
experience, he believed that at the time of impact, the left lower fender light of the Ford Focus
was on, functioning as either a parking lamp or in headlight position. The jury verdict supports
that it accepted his testimony as credible, which this Court will not disturb.

                          III. GREAT WEIGHT OF THE EVIDENCE

        Defendant argues that the evidence does not support that his intoxicated operation of his
vehicle was a proximate cause of the accident. Instead, defendant argues, the evidence supports
that the Ford Focus did not have its headlights on, so defendant was unable to see it, which
caused the accident. We disagree.

         This Court reviews “a denial of a motion for a new trial based on a great weight of the
evidence argument under an abuse of discretion standard.” People v DeLisle, 202 Mich App
658, 661; 509 NW2d 885 (1993). But defendant failed to preserve the issue by moving for a new
trial in the trial court, and our review is limited to plain error affecting defendant’s substantial
rights. People v Musser, 259 Mich App 215, 218; 673 NW2d 800 (2003). Defendant must
establish that 1) an error occurred; 2) the error was plain, clear or obvious, and 3) the plain error
affected the out of the proceedings. People v Carines, 460 Mich 750, 763; 597 NW2d 130
(1999). Even so, reversal will be warranted only when the plain error resulted in the conviction
of an actually innocent defendant or when the error seriously affected the fairness, integrity or
public reputation of judicial proceedings regardless of the defendant’s innocence. Id.

        A jury verdict will be vacated only when the evidence does not reasonably support it, and
the verdict more likely resulted from extraneous causes such as passion, prejudice, or sympathy.
DeLisle, 202 Mich App at 661. The test is “whether the verdict was manifestly against the clear
weight of the evidence.” Id. The trial court may not set aside a jury verdict on the basis that the
court disbelieves the testimony of certain witnesses. People v Lemmon, 456 Mich 625, 636; 576
NW2d 129 (1998).

       As discussed already, the jury’s verdict was supported by the evidence, including that
defendant proximately caused the accident. Both Harbeck and Taylor testified that the
headlights of the Ford Focus were on. The only evidence that directly refutes this is defendant’s

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testimony that he did not see any other vehicles on the road when he made the turn that caused
the accident. Notably, defendant did not directly testify that the Ford Focus’s headlights were
off. Although Lucidi testified that he observed the headlight switch in the off position at the
towing station after the accident, he also testified that it is “not uncommon to find physical
evidence suggestive of light usage with the headlight switch in the actual off position” and
provided various explanations as to how this could occur. Lucidi also testified that in his expert
opinion, based on 18 years of experience, at the least, the left front lower fender light of the Ford
Focus was on at the time of impact. Conflicting testimony on its own is insufficient grounds for
a finding of a jury verdict against the great weight of the evidence. Lemmon, 456 Mich at 647;
Musser, 259 Mich App at 219. Therefore, there is no plain error.

                                 IV. INSTRUCTIONAL ERROR

       Defendant argues that the jury should not have been instructed on flight because the
evidence does not support that he fled. We disagree.

       This Court reviews de novo a claim of instructional error. People v Kowalski, 489 Mich
488, 501; 803 NW2d 200 (2011). In reviewing such a claim of error, the instructions are read as
a whole, rather than piecemeal. Id. An instructional error will warrant reversal only when it
undermines the reliability of the verdict, i.e., when the error is outcome determinative. People v
Mitchell, 301 Mich App 282, 288-289; 835 NW2d 615 (2013).

        “It is well established in Michigan law that evidence of flight is admissible.” People v
Coleman, 210 Mich App 1, 4; 532 NW2d 885 (1995). Furthermore, a trial court may instruct a
jury that flight may be evidence of consciousness of guilt so long as it also instructs the jury that
evidence of flight does not prove guilt because a defendant may flee for other reasons. People v
Taylor, 195 Mich App 57, 63-64; 489 NW2d 99 (1992).

        Defendant attempts to rely on case law regarding the admissibility of evidence of flight,
not whether the jury instruction should be given, to support his argument. We note that
defendant did not object to evidence of his attempts to flee during questioning.1 The relevant
issue is not whether evidence of defendant’s attempts to leave the crash site should have been
admissible, but whether the evidence that was admitted supported the flight instruction.

         The evidence supported the instruction. Several witnesses testified that defendant
attempted to leave the crash site. Harbeck testified that defendant “tried to get out of his car and
leave. And the officer was telling him not to go anywhere. And bystanders were kinda trying’
[sic] to keep him there.” Although Harbeck also testified that defendant was not running, he also
reiterated that “[p]eople stopped [defendant] from gettin’ away.” Mark Irvin, a witness at the
crash site, testified that defendant kept distancing himself from the accident and was talking on
his cell phone. Irvin explained that defendant attempted to leave on three occasions, and on the
third occasion, a police officer went over to defendant and instructed him to sit down and not


1
  Defendant did object to some hearsay statements but not to the testimony regarding defendant’s
attempts to flee.


                                                -4-
leave the area. Irvin explained that defendant was walking towards a “tree line” where, on the
other side, a person that Irvin thought was defendant’s son had pulled up in a car. DeWeese
testified that defendant “kept trying to walk, like toward the street . . . into the trailer park.”
Even defendant testified that he could not remember if he attempted to leave the crash site, but
that he “vaguely” remembered a police officer telling him to stay still.

        Moreover, even if the evidence did not support a finding that defendant attempted to flee
the accident and the jury received the instruction in error, this error was not outcome
determinative. The trial court instructed the jury, “[t]here has [sic] some evidence that the
defendant tried to run away at the alleged crimes. This evidence does not prove guilt. A person
m[a]y run for innocent reasons, such as panic, mistake or fear. However, a person may also run
because of a consciousness of guilt.” The trial court’s instruction was not prejudicial to
defendant because it presented both the possibility of innocence and guilt. See Taylor, 195 Mich
App at 63-64. Even if the evidence did not actually support finding that defendant attempted to
flee, the jury was properly instructed that the evidence of flight could support either defendant or
the prosecution’s theory of the case. Therefore, the instruction does not undermine the reliability
of the jury’s verdict. In fact, if the trial court had not instructed on flight at all, the jury may have
simply considered this evidence as consciousness of guilt, without being reminded that the
evidence could also be consistent with innocence.

                        V. PRIOR RECORD VARIABLE (PRV) 5 SCORE

        Defendant argues that defendant’s Wisconsin misdemeanor charge the prosecution relied
on was not a criminal case in Wisconsin at the time of its disposition; therefore, it does not
qualify as a prior misdemeanor conviction. We agree.

        The trial court’s factual determinations when determining the applicable sentencing
guidelines “are reviewed for clear error and must be supported by a preponderance of the
evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). Additionally,
“[w]hether the facts . . . are adequate to satisfy the scoring conditions prescribed by statute . . . is
a question of statutory interpretation, which an appellate court reviews de novo.” Id.

        PRV 5 addresses prior misdemeanor convictions and prior misdemeanor juvenile
adjudications. MCL 777.55(1); People v Gibbs, 299 Mich App 473, 485; 830 NW2d 821 (2013).
A “prior misdemeanor conviction” is “a conviction for a misdemeanor under a law of this state, a
political subdivision of this state, another state, a political subdivision of another state, or of the
United States if the conviction was entered before the sentencing offense was committed.” MCL
777.55(3)(a). For the purpose of PRV 5, a prior misdemeanor conviction or prior misdemeanor
juvenile adjudication may be considered only if it is an offense against a person or property, a
controlled substance offense, a weapon offense, or an operating or attempting to operate a
vehicle while under the influence offense. MCL 777.55(2)(a) and (b); People v Crews, 299 Mich
App 381, 397; 829 NW2d 898 (2013). Under PRV 5, if the defendant has one prior
misdemeanor conviction or prior misdemeanor juvenile adjudication, then the defendant is
assessed two points. MCL 777.55(1)(e). Defendant was assessed two points under PRV 5.

       When this Court reviews sentencing decisions, it looks to the evidence of record at the
time of sentencing. Hardy, 494 Mich at 444-447. Defendant claims that his conviction in

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Wisconsin was not for a misdemeanor, but instead, for a civil infraction. In support of his
argument, defendant submits printouts from the Wisconsin Circuit Court Access website, which
states “DISORDERLY CONDUCT. This is not a criminal offense and results only in a money
penalty . . . .” But the trial court was not provided with this evidence when it made its sentencing
decision. The documents the prosecution provided to the trial court before sentencing indicate
that defendant pleaded no contest to the Wisconsin charge, which was predicated on a domestic
violence incident. The documents also indicate that if defendant successfully completed a
domestic violence counseling program that the charge would be amended to a county ordinance
disorderly conduct violation. The charge was, in fact, amended on May 26, 2009 as defendant’s
documentation verifies. So, while defendant was originally charged with a Wisconsin
misdemeanor of disorderly conduct, Wis Stat Ann § 947.01, he ultimately was convicted of the
local version of that offense, Waukesha County Ordinances, ch 13, art II, § 13-102(c)(8), the
penalty for which is limited to a monetary “forfeiture”—i.e., a civil infraction “offense” under
Wisconsin law.

        In a similar circumstance, this Court ruled that a trial court abused its discretion where it
scored PRV 5 at two points for a misdemeanor conviction that was later dismissed and the
defendant discharged upon fulfillment of the terms and conditions of probation. People v James,
267 Mich App 675, 678-679; 705 NW2d 724 (2005). In James, the misdemeanor charge was
deferred under MCL 333.7411(1), which specifically provides that “[d]ischarge and dismissal
under this section shall be without adjudication of guilt and, except as otherwise provided by
law, is not a conviction for purposes of this section or for purposes of disqualifications or
disabilities imposed by law upon conviction of a crime . . . .” See James, 267 Mich App at 679.
The situation at hand appears analogous: Essentially, defendant’s no contest plea to the
Wisconsin misdemeanor charge was dismissed and replaced with the civil infraction of
disorderly conduct under a county ordinance because defendant fulfilled the terms and conditions
required of him by the Wisconsin court. Hence, he did not have a prior misdemeanor conviction
as required for scoring points under PRV 5. Under these facts, we conclude that defendant
should not be scored two points for PRV 5 for a misdemeanor conviction which was later
amended to a county ordinance violation that is only a civil infraction.

        Defendant also argues that disorderly conduct is not the type of misdemeanor that
qualifies for scoring under PRV 5 because it does fit any of the types of crimes under MCL
777.55(2)(a) and (b). In view of our discussion above, we need not further address this issue.

       Because scoring PRV 5 at zero points results in a lower guidelines recommended
sentence range, defendant is entitled to resentencing. People v Francisco, 474 Mich 82, 89-90;
711 NW2d 44 (2006).

                       VI. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant asserts that his trial counsel’s performance fell below an objective standard of
reasonableness because trial counsel failed to cross-examine the prosecution’s expert on the
possibility of false positive results in examining the Ford Focus for hot shock and the effect of
turning the light on and off after the accident, but before the investigation, and failed to argue the
issue of proximate cause to the jury in her closing argument. We disagree.


                                                 -6-
       To preserve the issue of ineffective assistance of counsel, a defendant must file a timely
motion in the trial court for a new trial raising the issue. People v Wilson, 242 Mich App 350,
352; 619 NW2d 413 (2000). A defendant may also seek an evidentiary hearing when he wishes
to support a claim that is not supported by the record. People v Ginther, 390 Mich 436, 443-444;
212 NW2d 922 (1973). Because this Court denied defendant’s motion to remand for an
evidentiary hearing,2 our review is limited in its review of the issue to mistakes apparent on the
record. Wilson, 242 Mich App at 352.

       When presented an issue of whether a defendant received the effective assistance of
counsel, we review any of the trial court’s factual findings for clear error and the constitutional
question de novo. People v Douglas, 496 Mich 557, 566; 852 NW2d 587 (2014).

        Both the United States and Michigan Constitutions grant criminal defendants the right to
the effective assistance of counsel at trial. US Const, Am VI; Const 1963, art 1, § 20. A
defendant claiming ineffective assistance of counsel must establish (1) that “counsel’s
performance fell below an objective standard of reasonableness, and (2) but for counsel’s
deficient performance, there is a reasonable probability that the outcome would have been
different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Strickland v
Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). This Court does not
apply the benefit of hindsight when determining whether trial counsel performed competently.
People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008).

       “In examining whether defense counsel’s performance fell below an objective standard of
reasonableness, a defendant must overcome the strong presumption that counsel’s performance
was born from a sound trial strategy.” Trakhtenberg, 493 Mich at 52. Still, this Court must
determine if trial counsel’s strategic choices were made on the basis of incomplete investigation.
Id. Defense counsel “always retains the duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” Id. (quotations omitted).

        Defendant’s claim that his trial counsel’s failure to “stress the proximate cause argument
in closing argument” amounted to ineffective assistance of counsel is without merit. Defendant’s
trial counsel argued the issue of proximate cause to the jury at length in closing argument.
Defendant’s trial counsel did not use the words “proximate cause” to argue defendant’s theory
that the Ford Focus was being driven in the dark without headlights, and that that driver’s action
was the proximate cause of the accident, not defendant’s intoxicated operation of a motor
vehicle. Instead, trial counsel stated, “[i]n regards to the cause of the accident” and then
continued to argue that there was evidence to support that Harbeck was the proximate cause of
the accident, perhaps either for the speed he travelled or for failing to turn on the headlights of
the Ford Focus.




2
  People v Cortes-Azcatl, unpublished order of the Court of Appeals, entered July 22, 2014
(Docket No. 319725).


                                                -7-
        The content of closing argument is trial strategy, which this Court will not second guess.
Horn, 279 Mich App at 39. Furthermore, this Court will only find that trial counsel was
ineffective on the basis of strategy if the strategy employed was unreasonable or unsound.
People v Cline, 276 Mich App 634, 637; 741 NW2d 563 (2007). Here, trial counsel presented
not one, but two possible theories to support that defendant’s driving while intoxicated was not a
proximate cause of Erwin’s death. Her strategy was not unreasonable. Although his trial
counsel may not have argued the issue to his standards, defendant fails to overcome the strong
presumption that his trial counsel’s closing arguments were sound trial strategy. Horn, 279 Mich
App at 39.

        Defendant claims that trial counsel was ineffective for failing to completely investigate
the phenomenon of “hot shock” which would have resulted in her conducting a stronger cross-
examination of Lucidi on specific issues and potentially discrediting his testimony. Defendant’s
claim fails. Defendant relies wholly on extra-record evidence in the form of articles from the
internet to support his claims that trial counsel was ineffective. We cannot address this issue,
however, because a party may not expand the record on appeal. People v Gingrich, 307 Mich
App 656, 659 n 1; ___ NW2d ___ (2014). And, we will not employ hindsight to assess
counsel’s competence regarding matters of trial strategy. Horn, 279 Mich App at 39.

       On the basis of the record as it stands, trial counsel’s cross-examination of Lucidi was not
unreasonable. Trial counsel asked several questions of Lucidi regarding the position of the
headlight switch, apparently attempting to point out that the headlight switch on the Saturn
remained in the on position even two days after the accident, while the Ford Focus’s headlight
switch was off, to indicate that no one had tampered with the switches.

        In any event, even if defendant could establish that trial counsel’s performance was
deficient for failing to question Lucidi on the phenomenon of false positives and the effect of
turning the headlights on and off after an accident, defendant cannot establish that “but for
counsel’s deficient performance, there is a reasonable probability that the outcome would have
been different.” Trakhtenberg, 493 Mich at 51. Lucidi’s expert testimony was not the sole
evidence that the Ford Focus’s headlights were on at the time of the accident. Taylor and
Harbeck, the passenger and the driver in the Ford Focus, testified that the headlights were on.
Although expert testimony supported the prosecution’s theory of proximate cause, the expert
testimony was not integral for the jury’s finding defendant guilty. Even if trial counsel had
expertly cross-examined Lucidi on hot shock, there was sufficient evidence in the record upon
which the jury could reasonably rely to determine that defendant’s intoxicated operation of his
vehicle was a proximate cause of the accident.

        We affirm defendant’s conviction but remand for resentencing.          We do not retain
jurisdiction.



                                                            /s/ Joel P. Hoekstra
                                                            /s/ Jane E. Markey
                                                            /s/ Pat M. Donofrio


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