                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    January 14, 2016
               Plaintiff-Appellee,

v                                                                   No. 323613
                                                                    Kalamazoo Circuit Court
BRIAN DAVID BRUGH,                                                  LC No. 2014-000646-FH

               Defendant-Appellant.


Before: BOONSTRA, P.J., and SAWYER and MARKEY, JJ.

PER CURIAM.

        Defendant was convicted by a jury of operating a motor vehicle with the presence of a
controlled substance in his body, third offense, MCL 257.625(8), (9)(c); and operating a motor
vehicle without a license, MCL 257.301(1). He was acquitted of an additional charge of
operating a motor vehicle while visibly impaired, third offense, MCL 625.625(3), (11)(c). He
was sentenced as a fourth-offense habitual offender, MCL 769.12, to 2 to 30 years’
imprisonment for his conviction under MCL 257.625(8), (9)(c). He now appeals by right his
convictions and sentence. We affirm.

        Defendant was pulled over by Kalamazoo Township Police Officer Michael Vasilovski at
approximately 2:30 a.m. on November 15, 2015. Upon making contact with Vasilovski,
defendant immediately admitted that he did not have a driver’s license and Vasilovski detected
the odor of intoxicants. Defendant initially told Vasilovski that he had consumed three 12-ounce
beers that evening, but later admitted that he had actually consumed “closer to a six pack” of tall
draft beers. According to Vasilovski, defendant also admitted that he would probably “be over”
the legal alcohol limit. After administering various standard field sobriety tests, some of which
defendant failed, Vasilovski arrested defendant and took him to the hospital, where samples of
his blood were collected. Those samples revealed that defendant had a blood-alcohol content of
.06 grams per 100 milliliters and a THC1 content of one nanogram per milliliter. At trial,


1
  “Tetrahydrocannabinol, or THC, is the physiologically active component of marijuana.”
People v Koon, 494 Mich 1, 9 n 3; 832 NW2d 724 (2013), citing Stedman’s Medical Dictionary
(26th ed), p 1791. THC is a schedule 1 controlled substance. MCL 333.7212(1)(c).


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defendant admitted smoking marijuana approximately two days before being pulled over.
Additionally, as to the night in question, he admitted that he was driving without a valid license
and that he had consumed approximately 48 ounces of beer in a five-hour span before driving.
He asserted, however, that he was not impaired at the time he was pulled over. He attributed his
poor performance on the field sobriety tests to various medical conditions which affected his
balance and made his body jerk. Defendant was ultimately convicted as noted above.

        On appeal, defendant first argues that he was deprived of a fair trial when the trial court
denied his motion for a mistrial after the prosecution introduced improper other acts evidence.
We disagree. We review a trial court’s decision whether to grant a mistrial for an abuse of
discretion. People v Schaw, 288 Mich App 231, 236; 791 NW2d 743 (2010). A trial court
abuses its discretion when its decision falls “outside the range of principled outcomes.” Id.

        Defendant’s claimed error occurred during the prosecution’s cross-examination of
defendant. After defendant acknowledged laboratory reports indicating that he had alcohol and
THC in his system the night he was arrested, the prosecution asked if defendant had also used
methamphetamine that day or any time leading up to it. Defendant responded that he had used
methamphetamine in the past, but not on the night in question or any recent time leading up to it.
He was then asked if there was “any reason” that methamphetamine would have been in his
system at the time he was arrested, to which he responded “not that I know of.” Upon defense
counsel’s objection to this line of questioning, a conference was held outside the jury’s presence,
at which the prosecution asserted that it was in possession of an additional laboratory report—
apparently generated from the same blood samples taken from defendant at the hospital on the
night of his arrest but not received by the prosecution until the eve of trial—which indicated that
defendant also had 170 nanograms per milliliter of methamphetamine in his blood on the night
he was arrested. After concluding that defense counsel was not provided this additional report,
the trial court ruled that it could not be admitted into evidence. However, the prosecution was
allowed to use the report “for questioning purposes.” At that point, defense counsel requested a
mistrial, but the trial court denied the request and indicated that it would give a limiting
instruction. When the jury returned, the prosecution asked defendant the following questions:

              Q. Mr. Brugh, if I were in possession of a Michigan State Police
       laboratory report saying that there was an amount of—detectable amount of
       methamphetamine in your blood, would you have any reason to dispute that?

               A. Yes, I would.

              Q. So, it’s your testimony that you—you didn’t use methamphetamine
       around this time?

               A. No, I did not. Not—if somebody put some in my beer or somethin’ at
       the bar, I don’t know. But I did not knowingly use any methamphetamine that
       day.

Immediately following this line of questioning, the trial court instructed the jury that it could
only use the evidence in deciding whether defendant was telling the truth in his testimony, and
not for any other purpose.

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       Defendant argues that the trial court erred in denying his motion for a mistrial because
evidence regarding the existence of methamphetamine in his system at the time of his arrest was
impermissible under MRE 404(b) and was highly prejudicial. We disagree.

        A mistrial should be granted only for an irregularity that is prejudicial to the defendant’s
rights and impairs his ability to a fair trial. Schaw, 288 Mich App at 236. Here, no such
irregularity occurred. Contrary to defendant’s argument, no “evidence” of the presence of
methamphetamine in defendant’s system was actually introduced. Instead, the prosecutor merely
questioned defendant about whether he had methamphetamine in his system on the night in
question and asked whether he would dispute a report purportedly evidencing that fact. The
prosecution’s questions were not evidence. People v Mesik (On Reconsideration), 285 Mich
App 535, 541; 775 NW2d 857 (2009). Had defendant confirmed the prosecution’s questions and
admitted using methamphetamine around the time of his arrest, any such assertion by defendant
would have constituted evidence. Id. at 540-541. Instead, defendant denied such use, and the
prosecution was left to accept defendant’s answer without being able to admit the laboratory
report to contradict it. Because no actual evidence of the presence of methamphetamine in
defendant’s system at the time of his arrest was introduced, there was no basis for declaring a
mistrial. In sum, there was no “irregularity,” let alone one which was prejudicial to defendant’s
rights, and the trial court did not abuse its discretion in denying defendant’s request for a
mistrial. This is especially true where, as the trial court correctly reasoned, a cautionary
instruction was sufficient to cure any potential prejudice. People v Horn, 279 Mich App 31, 36;
755 NW2d 212 (2008).

        Defendant next argues that he is entitled to resentencing because the trial court, in
imposing sentence, admonished defendant that his repeated drinking and driving endangered
society. According to defendant, such statements suggest that the trial court improperly made an
independent finding of defendant’s guilt on the charge of operating while visibly impaired—a
charge for which he was acquitted—and then used that finding as a basis for imposing a harsher
sentence. We disagree. “Although a trial court may not make an independent finding of guilt
with respect to a crime for which a defendant has been acquitted, and then sentence the
defendant on the basis of that finding, the court in fashioning an appropriate sentence may
consider the evidence offered at trial, including other criminal activities established even though
the defendant was acquitted of the charges . . . .” People v Compagnari, 233 Mich App 233,
236; 590 NW2d 302 (1998)(internal citation omitted). See also People v Shavers, 448 Mich 389,
393-394; 531 NW2d 165 (195) (highlighting the difference between an independent finding of
guilt and the mere consideration of evidence in the record as an aggravating factor in deciding an
appropriate sentence). Here, the trial court’s statements were consistent with the evidence
introduced at trial and contained in the presentence investigation report. As such, there is no
support for defendant’s assertion that the trial court made an independent finding of guilt on a




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charge for which he was acquitted. Because defendant’s sentence fell within the legislative
guidelines, it must be affirmed. MCL 769.34(10).

      We affirm.



                                                       /s/ Mark T. Boonstra
                                                       /s/ David H. Sawyer
                                                       /s/ Jane E. Markey




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