                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 24, 2018
               Plaintiff-Appellee,

v                                                                  No. 335131
                                                                   Washtenaw Circuit Court
DANIEL WEBSTER WOOD,                                               LC No. 15-000154-FH

               Defendant-Appellant.


Before: MURPHY, P.J., and JANSEN and SWARTZLE, JJ.

PER CURIAM.

        Defendant appeals as of right his conviction of operating a motor vehicle while
intoxicated (OWI), third offense, MCL 257.625(1) and (9). We affirm.

        On January 4, 2015, defendant consumed alcohol at a restaurant and at a friend’s
apartment while watching a football game on television. Defendant admitted that he consumed
three beers and three shots of vodka during the course of the evening and admitted that he got
into his SUV and attempted to drive home after consuming the alcohol. The police found
defendant sleeping or unconscious, slumped over the steering wheel of his vehicle while it was
parked in the parking lot of a supermarket one mile from his friend’s apartment. The engine was
running, and defendant’s foot was on the brake. Defendant admitted to the arresting officer that
he had driven the vehicle from his friend’s apartment to the supermarket. The evidence, while
not entirely clear, indicated that approximately two hours elapsed from the time that defendant
drove and parked at the supermarket and the time that he was discovered by police.1 The police
administered field sobriety tests and arrested defendant for OWI. At the police station, defendant
took two DataMaster tests and his bodily alcohol content was 0.13%.

        At trial, defendant admitted that he was intoxicated when the arresting officer found him
in his parked SUV. However, defendant interposed a rising-alcohol-content defense, arguing
that his bodily alcohol content was less than 0.08% at the time he drove the vehicle and that he
did not operate the SUV under the influence of alcohol because his ability to drive was not


1
  Defendant testified that he sat in his parked SUV for about an hour listening to the radio and
then he fell asleep.


                                               -1-
substantially and materially impaired at that point. Defendant argued that he drove the vehicle at
approximately 9:00 p.m. and that he pulled off the road and parked the SUV when he began to
feel the impact of the alcohol on his system. Defendant contended that his bodily alcohol level
rose as his body metabolized the alcohol over the next few hours, resulting in a DataMaster test
result of 0.13% three hours later, shortly after midnight. Defendant maintained that he did not
operate the motor vehicle after the point in time when his bodily alcohol content exceeded legal
limits. The jury found defendant guilty of OWI. MCL 257.625(1). Defendant appeals as of
right.

       MCL 257.625 provides, in pertinent part, as follows:

               (1) A person, whether licensed or not, shall not operate a vehicle upon a
       highway or other place open to the general public or generally accessible to motor
       vehicles, including an area designated for the parking of vehicles, within this state
       if the person is operating while intoxicated. As used in this section, "operating
       while intoxicated" [OWI] means any of the following:

               (a) The person is under the influence of alcoholic liquor, a controlled
       substance, or other intoxicating substance or a combination of alcoholic liquor, a
       controlled substance, or other intoxicating substance [OUIL].

                (b) The person has an alcohol content of 0.08 grams or more per 100
       milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine [UBAL] .
       ...

        As gleaned from the statutory language, OWI can be established pursuant to either an
OUIL theory of criminal liability or a UBAL theory.2 Defendant argues that the evidence was
insufficient to sustain his conviction of OWI under a UBAL theory, considering that the ticket
from the DataMaster did not contain the measurement of alcohol in defendant’s breath and that
the only prosecution witness did not offer testimony showing the units of measurement of
alcohol the DataMaster used. Defendant additionally contends that the evidence was insufficient
to sustain his conviction of OWI under an OUIL theory, given that the arresting officer never
observed any impaired or intoxicated driving and did not offer any testimony that he knew
defendant had operated the vehicle while under the influence.


2
  We note that M Crim JI 15.6(2)(f) effectively provides that a jury need not be unanimous on
which of these two theories apply, so long as all of the jurors agree that a defendant committed
OWI under at least one of the theories. See also Use Note 2 to M Crim JI 15.6, citing People v
Nicolaides, 148 Mich App 100; 383 NW2d 620 (1985). “When a statute lists alternative means
of committing an offense which in and of themselves do not constitute separate and distinct
offenses, jury unanimity is not required with regard to the alternate theory.” People v Johnson,
187 Mich App 621, 629-630; 468 NW2d 307 (1991). Ultimately, even if six jurors found that
UBAL alone was proven and the other six jurors found that only OUIL was proven, you would
still have a unanimous jury finding that the crime of OWI had been committed premised on a
single act of driving a motor vehicle.


                                                -2-
       At the outset, we address defendant’s argument that it is impossible to know whether
defendant was convicted of OWI under an OUIL or a UBAL theory, because the verdict form
did not specify whether the jury found him guilty under an OUIL or a UBAL theory. Thus,
according to defendant, his OWI conviction can only be affirmed if there was sufficient evidence
to support the OUIL theory and the UBAL theory.

        The verdict form indicated that the jury found defendant guilty of “Operating Under the
Influence/Unlawful Blood Alcohol Level.” Thus, it is impossible to tell from the verdict form
which theory or theories of OWI the jury based its verdict upon. Further, when the jury foreman
read the verdict, he stated, “We, the jury, find the Defendant ah – guilty operating under the
influence, unlawful blood alcohol level.” The foreman was obviously reading from the verdict
form, so the transcript does not provide any further insight. Therefore, we agree with defendant
that the panel is presented with a situation wherein we cannot discern whether the jury convicted
defendant of OWI on an OUIL theory or a UBAL theory, or a combination thereof. We
disagree, however, with defendant’s position that this conundrum requires a determination that
both theories were sufficiently supported by the evidence; the law is just the opposite,
considering that defendant is arguing factual insufficiency and not legal insufficiency.

        In People v Chelmicki, 305 Mich App 58, 64-65; 850 NW2d 612 (2014), the defendant
was convicted, in general, of unlawful imprisonment, MCL 750.349b, which allows for a
conviction when, as pertinent to the charges in Chelmicki, a defendant knowingly restrains
another person either by means of a weapon or dangerous instrument or in order to facilitate the
commission of another felony. The defendant argued that there was insufficient evidence with
respect to both circumstances or theories, but the Chelmicki panel declined to address whether
there was sufficient evidence of restraint by means of a weapon or dangerous instrument,
because there was sufficient evidence of restraint to facilitate the commission of another felony,
arson. Chelmicki, 305 Mich App at 65. In a footnote, this Court explained why it was
unnecessary to reach both theories of the unlawful-imprisonment conviction, either of which
could have served to support the conviction:

               If there was any deficiency regarding the sufficiency of the evidence of
       restraint by means of a weapon or dangerous instrument under subsection (1)(a),
       it was evidentiary in nature and went to the issue of whether restraint was actually
       accomplished through use of the BB gun, when the victim testified that she knew
       the BB gun was broken, unloaded, and could not hurt her, and physical force was
       used to restrain the victim. Accordingly, we find that our ruling does not offend
       Griffin v United States, 502 US 46; 112 S Ct 466; 116 L Ed 2d 371
       (1991) (discussing due process concerns in the context of a general verdict with
       alternative bases of criminal liability and the sufficiency thereof). [Chelmicki,
       305 Mich App at 65 n 1.]

        A concise and accurate statement of the principles that were expressed in the United
States Supreme Court’s decision in Griffin was set forth in United States v Garcia, 992 F2d 409,
416 (CA 2, 1993), wherein the Second Circuit of the United States Court of Appeals observed:

              [T]he teaching of Griffin is that when disjunctive theories are submitted to
       the jury and the jury renders a general verdict of guilty, appeals based on

                                               -3-
       evidentiary deficiencies must be treated differently than those based on legal
       deficiencies. If the challenge is evidentiary, as long as there was sufficient
       evidence to support one of the theories presented, then the verdict should be
       affirmed. However, if the challenge is legal and any of the theories was legally
       insufficient, then the verdict must be reversed. [See also United States v Tomblin,
       46 F3d 1369, 1385-1386 (CA 5, 1995), and United States v Self, 2 F3d 1071,
       1092-1093 (CA 10, 1993).]

        The reason for treating an evidentiary deficiency claim different than a legal deficiency
claim “is that jurors can, from their own experience, weed out evidentiary deficiencies, but not
legal insufficiencies.” Tomblin, 46 F3d at 1385; see also Self, 2 F3d at 1093 (“factual
insufficiency . . . does not require reversal as we will presume that the jury rejected the factually
inadequate theory and convicted on an alternative ground for which the evidence was
sufficient”).3

        Here, we conclude that, assuming any factual deficiency with respect to the UBAL theory
of OWI, there was adequate evidence to support the OUIL theory. Defendant’s deficiency
arguments concerning UBAL are “evidentiary” in character, where he asserts that there was
insufficient evidence relative to the measurement of alcohol in his breath and the units of
measurement of alcohol used by the DataMaster. Defendant argues that this evidence was
necessary to support a UBAL-based conviction of OWI, as MCL 257.625(1)(b) requires proof
that a person have “an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210
liters of breath, or per 67 milliliters of urine.” We now proceed to provide our reasoning for
concluding that there was sufficient evidence to support the OUIL theory of OWI.

        We review de novo the issue regarding whether there was sufficient evidence to sustain a
conviction. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). In reviewing the
sufficiency of the evidence, this Court must view the evidence – whether direct or circumstantial
– in a light most favorable to the prosecutor and determine whether a rational trier of fact could
find that the essential elements of the crime were proven beyond a reasonable doubt. People v
Reese, 491 Mich 127, 139; 815 NW2d 85 (2012); People v Hardiman, 466 Mich 417, 428; 646
NW2d 158 (2002). A jury, and not an appellate court, observes the witnesses and listens to their
testimony; therefore, an appellate court must not interfere with the jury’s role in assessing the
weight of the evidence and the credibility of the witnesses. People v Wolfe, 440 Mich 508, 514-
515; 489 NW2d 748 (1992). Circumstantial evidence and the reasonable inferences that arise



3
  Defendant cites People v Vandenberg, 307 Mich App 57; 859 NW2d 229 (2014), in arguing
that reversal is necessary when a defendant stands convicted on one of two theories, one of
which is permissible and one of which is not, where it cannot be ascertained which theory the
conviction rested upon. Defendant’s reliance on Vandenberg is misplaced, given that the theory
found to be improper in that case concerned statutory language that was constitutionally
overbroad. Id. at 67. This would constitute a “legal” deficiency or insufficiency, and jurors
would not be expected to weed out that the problematic theory should not be contemplated
because it was unconstitutional.


                                                -4-
from such evidence can constitute satisfactory proof of the elements of a crime. People v
Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). The prosecution need not negate every
reasonable theory of innocence, but need only prove the elements of the crime in the face of
whatever contradictory evidence is provided by the defendant. People v Nowack, 462 Mich 392,
400; 614 NW2d 78 (2000). We resolve all conflicts in the evidence in favor of the prosecution.
People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008). We review de novo the proper
interpretation of a statute. People v Martin, 271 Mich App 280, 286-287; 721 NW2d 815
(2006).

        MCL 257.625(1)(a) prohibits a person from operating a motor vehicle upon a highway or
other place open to the general public when “[t]he person is under the influence of alcoholic
liquor . . . .” A person is driving under the influence of alcohol when his or her “ability to drive
[is] substantially and materially affected by consumption of intoxicating liquor.” People v
Lambert, 395 Mich 296, 305; 235 NW2d 338 (1975) (quotation marks omitted). A driver is
under the influence of alcohol when the driver’s “ability to operate a motor vehicle in a normal
manner [is] substantially lessened” or the driver’s “mental or physical condition [is] significantly
affected” and the driver is “no longer able to operate a vehicle in a normal manner.” M Crim JI
15.3(2); see also People v Walters, 160 Mich App 396, 402; 407 NW2d 662 (1987); People v
Raisanen, 114 Mich App 840, 844; 319 NW2d 693 (1982).

        Defendant argues that the evidentiary burden was not shown because the arresting officer
did not observe defendant driving erratically on the road and no one from the supermarket saw
defendant parking his vehicle in an unusual manner. In both People v Solmonson, 261 Mich App
657; 683 NW2d 761 (2004), and People v Stephen, 262 Mich App 213; 685 NW2d 309 (2004),
this Court found that there was adequate evidence supporting OUIL-based charges, even though
the defendants were first seen and discovered by police merely parked in their vehicles, given
that there was circumstantial evidence, along with reasonable inferences, that the defendants had
driven under the influence of alcohol to the locations where they parked. And in both cases, the
defendants made incriminating statements indicative of having committed OUIL. Stephen, 262
Mich App at 215, 219-220; Solmonson, 261 Mich App at 660-663.

        In the instant case, the prosecutor presented sufficient evidence showing that defendant
drove his SUV, while under the influence of alcohol, to the supermarket where the police later
found him. Defendant indicated that he had driven the vehicle from a friend’s apartment to the
parking lot of the market a few minutes away, where he eventually passed out with the engine
running and his foot on the brake. He admitted to drinking three shots of vodka and three beers
during the evening and prior to driving. Defendant testified that he had his third shot of liquor
five to ten minutes before leaving the apartment in his SUV. The arresting officer testified that
when he arrived at the market, there was vomit right next to the driver’s side door of defendant’s
vehicle. The officer described defendant as smelling of intoxicants, having bloodshot eyes, and
looking confused and a bit dazed. The officer further testified, “Driver stated that, as he was
driving from [the apartment] to home, he realized that he had consumed too much alcohol and
pulled off to the side to sleep it off.” On cross-examination, the officer similarly testified to the
following regarding a statement made by defendant at the scene, “He said he was driving,
realized he drank too much, and pulled to the side to sleep it off.” The officer acknowledged that
he previously testified at the preliminary examination that defendant indicated that he had
“started off fine” when leaving the apartment. Defendant testified that he felt fine when he left

                                                -5-
his friend’s apartment, but then he pulled over, “knowing that [he] had started to feel like [he]
had too much to drink.”

         Viewing this evidence in a light most favorable to the prosecution, deferring to the jury’s
assessments of witness credibility and evidentiary weight, resolving all conflicts in the evidence
in favor of the prosecution, and understanding that circumstantial evidence and the reasonable
inferences arising from the evidence can establish the elements of the crime, there was more than
sufficient evidence supporting defendant’s conviction of OWI under an OUIL theory of criminal
liability. Even if, due to the lapse of time between the driving and defendant being discovered in
the parking lot, we eliminate consideration of the testimony about defendant’s appearance and
behavior when the officer found defendant in his SUV, there was still evidence that defendant
had consumed alcohol before driving and that he told the officer that he had consumed too much
alcohol, which is why he parked his SUV in the market’s lot. And even if we accept defendant’s
testimony that he was or felt fine when he first left the apartment, he also testified that he pulled
over when he started to feel like he had too much to drink, which, even if it was a short period of
time between coming to this realization and actually parking the vehicle, showed the operation of
his SUV when he felt intoxicated. Reversal is unwarranted.

        Defendant next argues that his trial counsel rendered ineffective assistance because he (1)
failed to object to the admissibility of the DataMaster test results, where the prosecution did not
lay a proper foundation for their admissibility, (2) failed to object to the arresting officer’s
improper testimony regarding the reliability of the DataMaster, the maintenance logs, and the
calibration of the machine, (3) failed to challenge the admissibility of an improperly
administered field sobriety test (HGN), and (4) failed to discover that the DataMaster ticket
lacked the necessary measurement of alcohol in the breath as expressed in grams per 210 liters of
breath.

        Whether counsel was ineffective presents a mixed question of fact and constitutional law,
which we review, respectively, for clear error and de novo. People v LeBlanc, 465 Mich 575,
579; 640 NW2d 246 (2002). In People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884
(2001), our Supreme Court, addressing the basic principles governing a claim of ineffective
assistance of counsel, observed:

               To justify reversal under either the federal or state constitutions, a
       convicted defendant must satisfy the two-part test articulated by the United States
       Supreme Court in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed
       2d 674 (1984). See People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797
       (1994). “First, the defendant must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was not
       performing as the ‘counsel’ guaranteed by the Sixth Amendment.” Strickland,
       supra at 687. In so doing, the defendant must overcome a strong presumption that
       counsel’s performance constituted sound trial strategy. Id. at 690. “Second, the
       defendant must show that the deficient performance prejudiced the defense.” Id.
       at 687. To demonstrate prejudice, the defendant must show the existence of a
       reasonable probability that, but for counsel’s error, the result of the proceeding
       would have been different. Id. at 694. “A reasonable probability is a probability
       sufficient to undermine confidence in the outcome.” Id. Because the defendant

                                                -6-
       bears the burden of demonstrating both deficient performance and prejudice, the
       defendant necessarily bears the burden of establishing the factual predicate for his
       claim. See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

        An attorney’s performance is deficient if the representation falls below an objective
standard of reasonableness. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000).
Decisions to introduce or challenge evidence are presumed to be matters of trial strategy, and this
Court will not substitute its judgment for that of counsel regarding matters of trial strategy.
People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002). And we will not “assess
counsel’s competence with the benefit of hindsight.” People v Rockey, 237 Mich App 74, 76-77;
601 NW2d 887 (1999). We cannot insulate, however, the review of counsel's performance
by simply calling it trial strategy. People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136
(2012). Initially, this Court must determine whether strategic choices were made after less than
complete investigation, with any choice being reasonable only to the extent that reasonable
professional judgment supported the limitations on investigation. Id.; see also People v Ackley,
497 Mich 381, 389; 870 NW2d 858 (2015).

        Defendant testified that he was intoxicated and under the influence of alcohol when the
arresting officer discovered him in the market’s parking lot, and the officer’s testimony also
evidenced that defendant was intoxicated at that time. Accordingly, the defense strategy in the
case was to present a rising-alcohol-content defense, which would have been premised on
defendant being under the influence by the time he was subjected to the sobriety and DataMaster
tests. The defense fit neatly with the inescapable facts, and defendant presented an expert
witness in support of the rising-alcohol-content defense. Under the circumstances, therefore, it
would have made little sense, nor would there have been a need, to challenge the tests that
established defendant’s intoxication. Although defendant frames this issue in terms of counsel’s
failure to object to evidence and make evidentiary challenges, he is effectively suggesting that
counsel was ineffective for presenting a rising-alcohol-content defense, yet there is no specific
argument to that effect. And we have no basis to conclude that defense counsel was ineffective
for presenting a rising-alcohol-content defense, especially given the overwhelming evidence of
defendant’s intoxication when he was found by police at the market a couple of hours after
driving his SUV. “The fact that defense counsel's strategy may not have worked does not
constitute ineffective assistance of counsel.” People v Stewart (On Remand), 219 Mich App 38,
42; 555 NW2d 715 (1996). Assuming that all of the evidentiary issues raised by defendant in the
context of this ineffective assistance claim are valid, e.g., the HGN sobriety test would have been
excluded if objected to by counsel, we simply cannot conclude that defense counsel’s
performance was deficient or that the requisite prejudice was established in light of the nature of
the defense that was presented in this case. Moreover, given defendant’s concession that he had
consumed alcohol that evening, along with the evidence of his inebriated and intoxicated state as
described by the arresting officer and defendant himself, we cannot conclude that prejudice could
be established as to OUIL, even if the HGN sobriety test and the DataMaster results were
excluded.




                                                -7-
        Finally, we reject defendant’s argument that the trial court erred in refusing to conduct a
Ginther4 hearing. In light of our reasoning set forth above in rejecting the contention that
defense counsel was ineffective, we fail to see how a Ginther hearing would have been of any
benefit or result in a different outcome. Accordingly, the trial court did not abuse its discretion
in denying the motion for a Ginther hearing. People v Unger, 278 Mich App 210, 216-217; 749
NW2d 272 (2008).

         Affirmed.


                                                            /s/ William B. Murphy
                                                            /s/ Kathleen Jansen
                                                            /s/ Brock A. Swartzle




4
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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