                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 15, 2017
               Plaintiff-Appellee,

v                                                                   No. 331593
                                                                    Wayne Circuit Court
RASSOULL OMARI JAMES,                                               LC No. 15-004256-01-FH

               Defendant-Appellant.


Before: MARKEY, P.J., and METER and SHAPIRO, JJ.

PER CURIAM.

       Defendant appeals by right his conviction following a bench trial of operating a vehicle
while intoxicated, MCL 257.625(1)(c), and having two or more prior similar convictions, MCL
257.625(9)(c). The court sentenced defendant to three years’ probation. We affirm.

       At trial, George Brandau testified that he drove home from work on April 23, 2015.
When Brandau was a little more than a mile from his home, he noticed that another vehicle was
following him. Brandau pulled into the driveway of his home and the other vehicle followed and
parked behind Brandau’s car in the driveway. Defendant was the driver of the other vehicle.
Defendant did not know Brandau, had no reason to go to Brandau’s house, and did not get out of
his vehicle after he entered the driveway. Brandau’s wife called the police while Brandau
remained in his vehicle. After the police arrived, they administered two field sobriety tests to
defendant, which he failed. Testing revealed that defendant’s blood-alcohol level was .32 grams
per 210 liters of breath.

       At the first hearing in circuit court, defendant was prepared to stand mute and waive
reading of the information. However, the prosecutor had not yet received the case file, so the
arraignment was not held. A formal arraignment was not conducted at any subsequent court
hearing. Defendant later waived his right to a jury and opted for a bench trial, at which the court
found him guilty of operating a vehicle while intoxicated.

                          II. ARRAIGNMENT ON INFORMATION

       Defendant first argues that his conviction must be vacated and the case dismissed because
he was never properly arraigned on the information pursuant to MCR 6.113. Because defendant
never sought dismissal or other relief below due to the lack of an arraignment, this issue is
                                                -1-
unpreserved. We review unpreserved issues for plain error affecting the defendant’s substantial
rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). An error is plain if it is
clear or obvious, and an error affects substantial rights if it is prejudicial, i.e., if it affects the
outcome of the proceedings. Id.; People v Jones, 468 Mich 345, 355; 662 NW2d 376 (2003).

        Although the record supports defendant’s claim that he was never formerly arraigned on
the information, “[a] showing of prejudice is required to merit relief for the failure to hold a
circuit court arraignment.” People v Nix, 301 Mich App 195, 208; 836 NW2d 224 (2013), citing
MCR 6.113(A). Defendant does not provide any basis for finding that he was prejudiced. The
record discloses that he was prepared to waive a formal reading of the information and allow the
trial court to enter a plea of not guilty on his behalf at the hearing on May 26, 2015, but he did
not do so only because the prosecutor was not prepared for the hearing. No prejudice is evident
from the record. Defendant’s counsel was prepared for trial, and it is apparent that defendant had
notice of the charge against him. Thus, the failure to conduct a proper arraignment did not affect
defendant’s substantial rights, and defendant is not entitled to relief on the basis of this issue.

                            III. SUFFICIENCY OF THE EVIDENCE

         Defendant also argues that the prosecution failed to present sufficient evidence to convict
him of operating a vehicle while intoxicated. We review de novo a claim that the evidence was
insufficient to support a defendant’s conviction. People v Lueth, 253 Mich App 670, 680; 660
NW2d 322 (2002). “When ascertaining whether sufficient evidence was presented in a bench
trial to support a conviction, this Court must view the evidence in a light most favorable to the
prosecution 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 Kanaan, 278 Mich App 594, 618;
751 NW2d 57 (2008). The elements of a crime may be proved with circumstantial evidence and
reasonable inferences arising therefrom. Carines, 460 Mich at 757.

       Defendant was convicted under MCL 257.625(1)(c), which provides, in pertinent part:

              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 . . . while . . . [t]he person has an alcohol content of 0.17 grams or more
       per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

       Defendant relies on People v Burton, 252 Mich App 130, 142; 651 NW2d 143 (2002), in
which this Court held that the defendant could not be convicted of operating a vehicle while
intoxicated where the intoxicated defendant was found behind the wheel of his vehicle at a golf
course parking lot with his seatbelt fastened while the engine of the stationary vehicle running
and the vehicle’s transmission in either park or neutral. This Court concluded:

       The evidence does not sufficiently establish that defendant was intending to use
       his truck as a motor vehicle as opposed to just a shelter. The mere fact that the
       engine was running does not sufficiently establish that defendant had or was
       intending to put the vehicle in motion. As one of the arresting officers conceded,
       it was possible that defendant was simply keeping the truck warm while he slept.
       [Id. at 143.]

                                                 -2-
      The instant case is factually distinguishable from Burton and more akin to People v
Solmonson, 261 Mich App 657; 683 NW2d 761 (2004), where the police found the defendant

       unconscious in the driver’s seat of a Chevrolet Cavalier station wagon with an
       open can of beer between his legs at 3:45 a.m. The car was parked just outside
       the white fog lines but was still on the road pavement. Although the engine was
       off, the keys were in the ignition and the engine was still warm. Defendant was
       alone but there were five full cans of cold beer on the passenger seat and one
       empty can in the back. The police found no one else in the area. [Id. at 660.]

The defendant failed field sobriety tests. He admitted drinking six beers since 6:00 p.m. the
previous night. His blood alcohol content was 0.21 and 0.22 grams per one hundred milliliters of
blood. Id. at 660-661. This Court distinguished Burton on the ground that “the prosecutor [in
Solmonson] did not claim that the evidence established defendant was operating the vehicle at
the point the police found him unconscious . . . .” Instead, the prosecutor in Solmonson “argued
that the evidence at trial presented a compelling circumstantial case that defendant had driven
while intoxicated to the location where the police found him.” Id. at 662.

        In this case, the prosecutor did not claim that defendant was operating the vehicle at the
point the police arrived at Brandau’s residence and found defendant intoxicated inside his parked
truck. Rather, as in Solmonson, the prosecutor maintained that defendant actually operated his
vehicle while intoxicated before the police arrived. In her closing argument, the prosecutor
reviewed the evidence that Brandau saw defendant’s vehicle being driven behind him, and that
the vehicle pulled into Brandau’s driveway. There was no evidence that any person other than
defendant operated his vehicle at any time during this sequence of events. The prosecutor argued
that Brandau’s testimony was direct evidence that defendant drove his vehicle, and that
circumstantial evidence proved that he did so while intoxicated.

        The evidence of defendant driving while intoxicated in this case is more compelling than
it was in Solmonson. Defendant was not merely found intoxicated in a stationary car, with no
evidence of how long he had been there, or whether he was intoxicated when he drove to his
location. Rather, Brandau observed defendant driving behind him on public streets and then
pulling into the driveway behind him. The police arrived shortly thereafter and defendant failed
two field sobriety tests. A blood alcohol test revealed that defendant had a blood alcohol level of
.32 grams per 210 liters of breath. Defendant’s test results and the officer’s observations were
sufficient to prove that defendant was intoxicated when the officer arrived. Moreover, unlike in
Solmonson, the prosecutor in this case presented direct evidence that defendant was driving his
car on public roads immediately before he stopped in Brandau’s driveway and before the police
arrived. The trial court, as the trier of fact, expressly found that defendant was operating his
vehicle “in Wayne County on streets open to the public,” and this finding is supported by
Brandau’s testimony. A reasonable trier of fact could also infer from defendant’s intoxicated
state when he was found in Brandau’s driveway that he was intoxicated while he was driving
behind Brandau shortly beforehand. Defendant’s confusion in following someone he did not
know to a private residence for no apparent purpose further supported that defendant was




                                                -3-
intoxicated when he drove his vehicle. Accordingly, the evidence was sufficient to support
defendant’s conviction.

      We affirm.

                                                       /s/ Jane E. Markey
                                                       /s/ Patrick M. Meter
                                                       /s/ Douglas B. Shapiro




                                           -4-
