                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     September 1, 2016
               Plaintiff-Appellant,

v                                                                    No. 330730
                                                                     Livingston Circuit Court
TAMI SUE LIVINGSTON,                                                 LC No. 15-022986-AR

               Defendant-Appellee.


Before: OWENS, P.J., and SAWYER and SHAPIRO, JJ.

PER CURIAM.

       In this case involving the corpus delicti rule, the circuit court dismissed the charge of
operating while intoxicated, second offense (OWI), MCL 257.625, because absent defendant’s
statements to the police there was no independent evidence to establish that she had operated a
vehicle under the influence of alcohol. The prosecution appeals by leave granted.1 We reverse
and remand for further proceedings.

       The basic facts are undisputed. On May 3, 2015, someone called 911 about a female
passed out in a vehicle in a bar parking lot. When the responding police officer arrived,
defendant was in the front passenger seat, the vehicle was running, and the driver’s door was
open. Defendant was the only occupant of the vehicle and no one else was around. EMS
personnel were attempting to talk to defendant. The officer testified that defendant appeared to
be “very intoxicated,” and he noted that she had bloodshot eyes and smelled strongly of
intoxicants.

        The officer asked defendant to step out of the vehicle and she did so. The officer also
asked if defendant had consumed alcohol that evening and she replied that she “had too much to
drink” and added that she “had a total of six drinks and that she had started drinking earlier in the
morning.” Defendant also told the officer that she had started driving home from a bar because
her friends had not given her a ride, but that she had pulled over because she was tired. The
police officer administered a series of field sobriety tests, which she was unable to successfully


1
  People v Livingston, unpublished order of the Court of Appeals, entered March 11, 2016
(Docket No. 330730).



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complete. The officer than placed her under arrest. Further, the officer administered a
breathalyzer test, which registered that defendant’s blood alcohol level was 0.21.

        Defendant moved to suppress her statements to the police officer, arguing before the
district court that they were barred by the corpus delicti rule and that, absent the barred
statements, there was not probable cause to support her arrest. The district court disagreed and
defendant appealed the decision to the circuit court, which reversed the district court after
finding that the statements were barred by corpus delicti rule.2

         The purpose of the corpus delicti rule is not to determine a defendant’s guilt or
innocence. It is to “to prevent the use of a defendant’s confession to convict him of a crime that
did not occur.” People v Konrad, 449 Mich 263, 269; 536 NW2d 517 (1995). Accordingly, the
rule requires that a defendant’s inculpatory statements are inadmissible unless a preponderance
of direct or circumstantial evidence “establish the occurrence of a specific injury and criminal
agency as the source of the injury[.]” People v Burns, 250 Mich App 436, 438; 647 NW2d 515
(2002). However, “the corpus delicti rule does not bar admissions of fact that do not amount to a
confession of guilt.” People v Schumacher, 276 Mich App 165, 180-181; 740 NW2d 534
(2007). A statement is a confession “[i]f the fact admitted necessarily amounts to a confession of
guilt[.]” People v Porter, 269 Mich 284, 290; 257 NW 705 (1934). A statement is an admission
if “the fact admitted does not of itself show guilt, but needs proof of other facts, which are not
admitted by the accused, in order to show guilt[.]” Id. Thus, resolution of this case turns on
whether defendant’s statements amounted to admissions of fact or a confession.

        Sufficient proof of defendant’s intoxication existed apart from any statements she made.
She appeared intoxicated, failed the field sobriety tests, and her blood alcohol level was found to
be 0.21. There was no alcohol or empty bottles found in the vehicle and based on her level of
intoxication it was evident that she had consumed a large amount of alcohol before entering the
vehicle. The only element of the offense as to which defendant’s statements were necessary
proofs was whether or not she had been driving since her alcohol consumption. In that regard,
her statement that she had driven the vehicle to the location where she was found was an
admission of fact, not a confession. Had the only proof of her intoxication been her statement
that she had been drinking earlier and had drank too much, then the corpus delicti rule would be
implicated because the only evidence of OWI would have come from defendant’s statements,
meaning that the facts admitted would necessarily show guilt. But that is not the case because




2
  This Court reviews de novo the trial court’s ultimate decision on a motion to suppress evidence
and the court’s findings of fact are reviewed for clear error. People v Barbarich, 291 Mich App
468, 471; 807 NW2d 56 (2011). “Clear error exists when the reviewing court is left with the
definite and firm conviction that a mistake has been made.” People v Kurylczyk, 443 Mich 289,
303; 505 NW2d 528 (1993) (opinion by GRIFFIN, J). “To the extent that a trial court’s ruling on
a motion to suppress involves an interpretation of the law or the application of a constitutional
standard to uncontested facts, our review is de novo.” People v Tanner, 496 Mich 199, 206; 853
NW2d 653 (2014) (citation omitted).



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defendant’s drinking and intoxication were shown by independent evidence.         Under these
circumstances, the corpus delicti rule was not violated.

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.



                                                         /s/ Donald S. Owens
                                                         /s/ David H. Sawyer
                                                         /s/ Douglas B. Shapiro




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