                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    August 2, 2018
               Plaintiff-Appellee,

v                                                                   No. 336883
                                                                    Bay Circuit Court
EDWARD MICHAEL CZUPRYNSKI,                                          LC No. 16-010157-FH

               Defendant-Appellant.


Before: METER, P.J., and GADOLA and TUKEL, JJ.

METER, P.J. (concurring in part and dissenting in part).

        I concur in all aspects of the majority opinion aside from the analysis and conclusion
concerning the effect of the trial court’s supplemental jury instruction regarding causation.
Because I believe that the jury instructions as a whole fairly presented the issues to be tried and
sufficiently protected defendant’s rights, see People v Aldrich, 246 Mich App 101, 124; 631
NW2d 67 (2001), I would affirm defendant’s conviction.

       MCL 257.601d(2), the statute under which defendant was convicted, states:

               A person who commits a moving violation while operating a vehicle upon
       a highway or other place open to the general public, including, but not limited to,
       an area designed for the parking of motor vehicles, that causes serious impairment
       of a body function to another person is guilty of a misdemeanor punishable by
       imprisonment for not more than 93 days or a fine of not more than $500.00, or
       both.

The statute requires a punishable violation to involve a moving violation that causes a serious
impairment of a body function to another person. The trial court, following M Crim JI 15.19,
instructed the jury as follows with regard to MCL 257.601d(2):

               The defendant is also charged with the crime of committing a moving
       violation causing serious impairment of a body function. To prove this charge,
       the prosecutor must prove each of the following elements beyond a reasonable
       doubt: First, that the defendant committed one or more of the following moving
       violations: Failing to proceed through a flashing yellow signal with caution or
       failing to observe an authorized speed or traffic control sign, signal, or device;

                                                -1-
       second, that the defendant’s operation of the vehicle caused a serious impairment
       of a body function to James Scott Stivenson. Again, to cause such injury, the
       defendant’s operation of a vehicle must have been a factual cause of the injury.
       That is, but for the defendant’s operation of the vehicle, the injury would not have
       occurred. In addition, operation of the vehicle must have been a proximate cause
       of the injury, that is, the injury must have been a direct and natural result of
       operating the vehicle. [Emphasis added.]

        To the extent these instructions allowed the jury to convict defendant if they found that
he committed a moving violation and then also found that his operation of the vehicle, aside
from the moving violation, caused the serious impairment of a body function, this error was
adequately rectified when the trial court reinstructed the jurors. After the start of deliberations,
the jury posed the following question: “Would [a] moving violation be a criminal offense in all
cases[?] What makes this criminal[?]” The court replied:

               You have another question for us: Would a moving violation be a criminal
       offense in all cases? What makes this criminal? When a moving violation causes
       a serious impairment of a body function, seems to answer your question.

               I would redirect you back to Criminal Jury Instruction 15.19, which is the
       full instruction on Count 2, which includes in particular, after defining the two
       moving violations, what -- what constitutes that element of the charge. So, in
       response to your questions seems to me [sic], a moving violation that is
       committed that causes a serious impairment of a body function. [Emphasis
       added.]

         We review jury instructions “in their entirety to determine if error requiring reversal
occurred.” Aldrich, 246 Mich App at 124 (emphasis added). “The instructions must not be
extracted piecemeal to establish error.” Id. (quotation marks and citations omitted). By way of
its supplemental instruction, the court properly informed the jury that to convict defendant, it
needed to find that the moving violation caused a serious impairment of a body function. While
it is true that the court referred the jurors back to its initial instruction on Count II, the court
clarified and added to this initial instruction by explicitly stating, two times in the course of its
short reply, that the answer to the jurors’ question was that a criminal offense involves a moving
violation that causes a serious impairment of a body function. The initial, poorly-worded
instruction indicated that a conviction would require that defendant’s operation of the vehicle
caused the injury, and the court, by way of its response, clarified that this “operation” must have
consisted of the moving violation. I do not view this situation as one involving a court’s having
given two conflicting instructions and ordering the jury to follow both. Instead, I view it as a
situation in which the court defined and clarified an element of the crime as previously set forth.
In other words, the court, in essence, explained that the “operation” of the vehicle as discussed in
M Crim JI 15.19 refers to the moving violation. The instructions could have been worded in a
more straightforward fashion, but, in my opinion, they “fairly presented the issues to be tried and
sufficient protected . . . defendant’s rights.” Aldrich, 246 Mich App at 124.




                                                -2-
I would affirm.



                        /s/ Patrick M. Meter




                  -3-
