                            STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  January 3, 2019
                 Plaintiff-Appellee,

v                                                                 No. 337758
                                                                  Wayne Circuit Court
JENNIFER LEA HEAVLIN,                                             LC No. 15-003247-01-FH

                 Defendant-Appellant.


Before: MURRAY, C.J., and SHAPIRO and RIORDAN, JJ.

PER CURIAM.

       Defendant appeals by right her jury trial convictions of operating while intoxicated
(OWI) causing death, MCL 257.625(4), and leaving the scene of a motor-vehicle accident
causing death, MCL 257.617(3). The trial court sentenced defendant to concurrent terms of 7 to
15 years’ imprisonment for her convictions. We affirm but remand for correction of the
presentence investigation report (PSIR) consistent with this opinion.

                                         I. BACKGROUND

        This case arises out of a motor-vehicle accident in the early hours of November 8, 2014,
which caused the death of Michelle Smith. Smith was in the front-passenger seat of a vehicle
driven by her boyfriend, Mark Pagan.1 A vehicle owned by defendant was traveling in the
opposite direction. As Pagan was making a left turn, the front-passenger corner of defendant’s
vehicle struck the front-passenger side of Pagan’s vehicle, causing Smith’s death. Inspector
James Pouliot, head of the “Downriver Crash Response Team,” determined that both drivers
were at-fault in the accident. Pagan made an improper left-hand turn by “cutting it sharp”
instead of making a 90-degree turn at the intersection. Officer Aaron Biniarz, another member
of the Crash Response Team, determined that at the time of impact defendant’s vehicle was
traveling 34 miles per hour in a 25 miles-per-hour zone. According to Pouliot, if defendant’s
vehicle was traveling the speed limit, the collision “probably” would not have occurred.
Similarly, if Pagan made a proper left turn, the accident would not have occurred because
defendant’s vehicle “would have already passed” the intersection.



1
    Pagan’s cousin, Joseph Yates, was also in the vehicle.



                                                 -1-
        The primary question raised by the defense at trial was whether defendant was the driver
of her vehicle at the time of the accident. Brian Tarcia testified that he came upon the accident
and exited his vehicle to see if he could offer help. Tarcia observed defendant exiting her vehicle
through the driver-side door.2 Tarcia said that defendant told him that she had called an
ambulance and that he should leave. Tarcia then heard people from the other vehicle yelling for
help, and he called 911. Tarcia said that defendant offered him money for a ride and tried to
enter his vehicle. After Tarcia directed her away from his vehicle, defendant “took off running.”
Based on descriptions obtained from witnesses at the scene, law enforcement found defendant at
a nearby gas station. Defendant denied that she had been drinking and that she was involved in
an accident. She was taken to the hospital, where she submitted to a blood test. The results were
0.192 grams of alcohol per 100 milliliters of blood, more than twice the legal limit.

        In an interview with law enforcement the next day, defendant admitted to being in her
vehicle at the time of the accident but denied that she was the driver. About a year after the
accident, defendant identified Bradley Williamson as the driver. Williamson testified that on the
night of accident he drove defendant in her vehicle to a friend’s house. However, he said that
defendant left the house without him and he denied being the driver of the vehicle. Williamson
willingly provided a DNA sample.

        DNA evidence was recovered from defendant’s vehicle’s airbags. Jennifer Jones, a
forensic biologist for the Michigan State Police, found that defendant’s DNA matched the major
donor to the driver-side airbag. Both airbags contained minor donor DNA profiles, but Jones
was unable to make any conclusions regarding those profiles. Defendant presented the testimony
of a DNA expert, Mark Perlin, who used probabilistic genotyping technology to analyze the
DNA collected from the airbags.3 Using this technology, Perlin found “strong” statistical
evidence that both defendant’s and Williamson’s DNA were present in the mixture obtained
from the driver-side airbag. Perlin estimated that 85% of the DNA corresponded to defendant
and 15% corresponded to Williamson. As for the passenger-side airbag, Perlin found statistical
support that defendant’s DNA was present on the airbag but “no support and some exclusionary
support” that Williamson’s DNA was part of the mixture obtained from that airbag. Perlin
estimated that “[r]oughly 40 percent” of the DNA found on the passenger-side airbag was
attributable to defendant.

       Closing arguments focused in large part on the interpretation of DNA evidence. The jury
heard testimony about two types of DNA transfers, direct and secondary. A direct transfer is
when a person transfers his or her DNA directly to an object. A secondary transfer occurs when
that DNA is then transferred to a different object. The prosecutor argued that, even if the jury
accepted Perlin’s conclusions, it did not mean that Williamson was driving at the time of the


2
 It was undisputed that the front-passenger door to defendant’s vehicle was stuck shut and that
defendant would have exited through the driver-side door even if she was a passenger in the
vehicle.
3
 The state did not yet have their probabilistic genotyping software “online” when it analyzed the
DNA evidence in this case.



                                                -2-
accident. The prosecutor stated that it was more likely that Williamson’s DNA was transferred
to the driver-side airbag through a secondary transfer, via the prior occasions that he was in
defendant’s vehicle. The defense explained that defendant’s DNA was on the driver-side airbag
because, as a passenger in the vehicle, she crawled over the driver’s seat, thereby wiping her face
on the airbag.

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant first argues that trial counsel was ineffective for failing to call Noami
Gonzalez as a witness. Reviewing the present record, we disagree, as it appears that there were
strategic reasons for not calling Gonzalez. Defendant provides an offer of proof suggesting that
counsel was not acting strategically, but we decline to remand for a Ginther4 hearing because
defendant does not demonstrate a reasonable probability that Gonzalez’s testimony would have
resulted in a different outcome.

        “A claim of ineffective assistance of counsel is a mixed question of law and fact.”
People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). “A trial court’s findings of fact,
if any, are reviewed for clear error, and this Court reviews the ultimate constitutional issue
arising from an ineffective assistance of counsel claim de novo.” Id. Because the trial court did
not conduct an evidentiary hearing on defendant’s claims of ineffective assistance of counsel, our
review is limited to mistakes apparent on the record. People v Lane, 308 Mich App 38, 68; 862
NW2d 446 (2014).

        “To establish a claim of ineffective assistance of counsel, a defendant must show both
that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the
defense.” People v Riley (After Remand), 468 Mich 135, 140; 659 NW2d 611 (2003). A defense
counsel’s performance was deficient if “it fell below an objective standard of reasonableness
under prevailing professional norms.” Id. To show 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.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).
“Decisions regarding whether to call or question a witness are presumed to be matters of trial
strategy.” People v Putnam, 309 Mich App 240, 248; 870 NW2d 593 (2015). “This Court will
not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess
counsel’s competence with the benefit of hindsight.” People v Garza, 246 Mich App 251, 255;
631 NW2d 764 (2001).

        At the preliminary examination, Gonzalez testified that she came upon the crash scene
and saw someone leaving defendant’s vehicle with “a jacket and a hood on.” Gonzalez said she
did not see the person’s face, nor could she identify the person’s gender. This testimony is
arguably favorable to the defense’s theory that Williamson was the driver of the vehicle.
However, upon closer examination, Gonzalez’s testimony is not consistent with that theory.
Gonzalez testified that she saw only one person leave defendant’s vehicle and did not see anyone
else in the vehicle. Yet, according to the defense, Williamson would have been the first person


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



                                                 -3-
to leave the vehicle, followed by defendant, as the passenger door was stuck shut. So, viewed in
context, Gonzalez’s testimony offers little, if any, support for the defense theory. Rather, her
testimony was consistent with the prosecution’s theory that there was only one person in
defendant’s vehicle at the time of the accident.

         Further, Gonzalez’s description of the person leaving defendant’s vehicle was consistent
with other witness’s descriptions. Again, Gonzalez said that the person exiting defendant’s
vehicle was wearing a jacket with a “hood on.” Other witnesses told law enforcement that the
person fleeing the crash scene was wearing a plaid jacket. Further, Gonzalez said that the person
she saw left the crash scene on Porter Ave., which was consistent with the witnesses who
testified at trial that defendant traveled in that direction. Gonzalez also testified that the person
she saw was “a little bit” taller than her, which accurately describes defendant’s height.
Moreover, an officer testified that when defendant was brought back to crash scene, Gonzalez
identified defendant as “the person that fled from the scene.”5 Thus, had Gonzalez testified at
trial, she could have been impeached with her police statement.

        In sum, Gonzalez’s preliminary examination testimony was somewhat favorable to
defendant because she could not identify the gender of the person leaving the car. However, she
saw only one person, which was inconsistent with defendant’s theory. In addition, Gonzalez
provided no evidence affirmatively supporting the defense. Further, there is evidence that on the
date of the incident she had identified defendant as the person fleeing the scene. One may argue
with counsel’s decision not to call Gonzalez as a witness, but the decision, when viewed solely
on the basis of the present record, had a strategic basis.

         In support of her motion to remand to the trial court for an evidentiary hearing, defendant
provides an offer of proof that trial counsel wanted to call Gonzalez as a witness but lost her
contact information and failed to reobtain it.6 Assuming that this is true, counsel’s actions were
not objectively reasonable. However, for the reasons discussed, we conclude that Gonzalez did
not offer defendant a substantial defense, i.e., “one that could have affected the outcome of the
trial,” Putnam, 309 Mich App at 248, and therefore defendant was not prejudiced by the alleged
error. Further, we note that, on appeal, the prosecutor provides Gonzalez’s handwritten
statement to the police in which she identifies defendant as the person she saw leaving the
vehicle. Accordingly, we decline to remand to the trial court for further factual development.
MCR 7.211(C)(1)(a)(ii).




5
    There was no objection to the officer’s recounting of Gonzalez’s statement.
6
  Although a party may not expand the record on appeal, People v Powell, 235 Mich App 557,
561 n 4; 599 NW2d 499 (1999), defendant was required to submit an “affidavit or offer of proof
regarding the facts to be established at a hearing” in support of her motion to remand. MCR
7.211(C)(1). It is appropriate for this Court to consider an offer of proof in deciding whether to
remand for a Ginther hearing. See People v Traver, 316 Mich App 588, 602; 894 NW2d 89
(2016), rev’d in part on other grounds 502 Mich 23 (2018).



                                                 -4-
         Defendant, in her Standard 4 brief, also argues that trial counsel was ineffective for
failing to retain an accident reconstruction expert. An attorney’s decision on whether to call an
expert witness is a matter of trial strategy. People v Payne, 285 Mich App 181, 190; 774 NW2d
714 (2009). The record does not reveal whether trial counsel consulted an accident
reconstruction expert. We note that trial counsel’s cross-examination of the prosecution’s
accident reconstruction witnesses was very limited. However, while it is possible that a different
expert would have reached different conclusions, e.g., that defendant was traveling less than 34
miles per hour, defendant does not present an offer of proof as to the expected testimony of a
defense accident reconstruction expert. “Without some indication that a witness would have
testified favorably, a defendant cannot establish that counsel’s failure to call the witness would
have affected the outcome of his or her trial.” People v Carll, 322 Mich App 690, 703; 915
NW2d 387 (2018). Thus, even assuming that trial counsel erred by not retaining an expert
witness, defendant fails to establish that she was prejudiced by that error.

                                  III. JURY INSTRUCTIONS

       Defendant argues that the trial court plainly erred by not instructing the jury on
contributory negligence in accordance with M Crim JI 16.20. We disagree.

        “A defendant in a criminal trial is entitled to have a properly instructed jury consider the
evidence against him or her.” People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007).
We review “jury instructions as a whole to determine whether there is error requiring reversal.”
People v Bartlett, 231 Mich App 139, 143; 585 NW2d 341 (1998). However, defendant did not
raise this issue below and therefore our review is for plain error affecting substantial rights.
People v Jackson, 313 Mich App 409, 421; 884 NW2d 297 (2015). The defendant must
establish that the alleged error more likely than not affected the outcome of the lower court
proceedings. People v Houthoofd, 487 Mich 568, 590; 790 NW2d 315 (2010). “Even if
somewhat imperfect, instructions do not warrant reversal if they fairly presented the issues to be
tried and sufficiently protected the defendant’s rights.” People v Kurr, 253 Mich App 317, 327;
654 NW2d 651 (2002).

        MCL 257.625(4) provides that “[a] person, whether licensed or not, who operates a motor
vehicle in violation of subsection (1), (3), or (8) and by the operation of that motor vehicle
causes the death of another person is guilty of a crime as follows[.]” “In criminal jurisprudence,
the causation element of an offense is generally comprised of two components: factual cause and
proximate cause.” People v Schaefer, 473 Mich 418, 435; 703 NW2d 774 (2005). “Factual
causation exists if a finder of fact determines that ‘but for’ defendant's conduct the result would
not have occurred.” People v Feezel, 486 Mich 184, 194-195; 783 NW2d 67 (2010). “For a
defendant’s conduct to be regarded as a proximate cause, the victim’s injury must be a direct and
natural result of the defendant’s actions, and an intervening cause must not sever the causal
link.” People v Laidler, 491 Mich 339, 346 n 2; 817 NW2d 517 (2012) (quotation marks and
citation omitted).

        In this case, the jury was instructed that it was required to find that defendant was both a
factual and proximate cause of Smith’s death and was given accurate definitions of those terms.
The jury was also instructed in accordance with M Crim JI 16.15:



                                                -5-
              There may be more than one cause of death. It is not enough that the
       defendant’s act made it possible for the death to occur. In order to find that the
       death of Michelle Smith was caused by the defendant, you must find beyond a
       reasonable doubt that the death was the natural or necessary result of defendant’s
       acts.

Defendant argues that the trial court erred in failing to also give the jury M Crim JI 16.20, which
provides:

       If you find that [named deceased] was negligent, you may only consider that
       negligence in deciding whether the defendant’s conduct was a substantial cause of
       the accident.

This instruction is based on the decision in People v Tims, 449 Mich 83, 97-99; 534 NW2d 675
(1995), which reaffirmed that negligence on the part of the decedent is not an affirmative
defense, but that a jury may consider the decedent’s negligence in determining whether the
defendant’s actions were a proximate cause of death. Defendant’s argument that the trial court
could have given a modified version of this instruction, i.e., with reference to the negligence of
the other driver, has some merit. However, M Crim JI 16.15 accurately explains the proximate
cause standard and it was not plain error not to give M Crim JI 16.20. No error results from the
omission of an instruction if the instructions as a whole covered the substance of the omitted
instruction. Kurr, 253 Mich App at 327.7
         Even if M Crim JI 16.20 (or some variation thereof) should have been presented to the
jury, it is not more probable than not that the instruction would have led to a different outcome.
“[T]he contributory negligence of a decedent will not exonerate a defendant of criminal
responsibility, where the defendant’s negligence is a proximate cause of the decedent’s death.”
People v Bailey, 451 Mich 657, 678; 549 NW2d 325 (1996) (citation omitted). There was
substantial evidence presented to the jury from which it could find that defendant was a
proximate cause of the victim’s death. Defendant was highly intoxicated and driving 10 miles
per hour over the speed limit around 3.00 a.m. She had a BAC of .192, over twice the legal
limit. When officers found defendant at the gas station, she was “staggering, unbalanced.”
Officers declined to perform a field sobriety test because it was apparent that defendant was
intoxicated and that it would have been unsafe to perform those tests. Officer Biniarz testified
that there was no evidence of “any pre-impact braking,” which allowed the jury to infer that
defendant was so intoxicated that she made no effort to avoid the collision. Thus, substantial
evidence supported the conclusion that a death arising from a motor-vehicle accident was a direct
and natural result of defendant’s actions.

       Defendant also suggests that the court should have instructed the jury that a defendant is
not a proximate cause of the accident if there was an intervening, superseding cause. As the
Supreme Court stated in Feezel:



7
  For the same reasons, we reject defendant’s alternative argument that trial counsel was
ineffective for not requesting the instruction.



                                                -6-
         Whether an intervening cause supersedes a defendant’s conduct is a question of
         reasonable foreseeability. [Schaefer, 473 Mich at 437]. Ordinary negligence is
         considered reasonably foreseeable, and it is thus not a superseding cause that
         would sever proximate causation. Id. at 436-437. In contrast, “gross negligence”
         or “intentional misconduct” on the part of a victim is considered sufficient to
         “break the causal chain between the defendant and the victim” because it is not
         reasonably foreseeable. Id. Gross negligence, however, is more than an enhanced
         version of ordinary negligence. Id. at 438. “It means wantonness and disregard
         of the consequences which may ensue . . . .” People v Barnes, 182 Mich 179, 198;
         148 NW 400 (1914). “Wantonness” is defined as “[c]onduct indicating that the
         actor is aware of the risks but indifferent to the results” and usually “suggests a
         greater degree of culpability than recklessness . . . .” Black’s Law Dictionary (8th
         ed). [Feezel, 486 Mich at 195-196.]

         Thus, in order for a jury to have found Pagan’s actions to be a superseding intervening
cause they would have needed to conclude that his conduct constituted gross negligence. Pagan
had a BAC of .08, just over the legal limit. MCL 257.625(1)(b). The Supreme Court has
declined to decide “[w]hether, in a multiple vehicle accident, a victim-driver’s intoxication raises
a presumption of gross negligence . . . .” Feezel, 486 Mich at 196 n 5. Defendant also points out
that Pagan made an improper left turn even though he could see headlights of an oncoming
vehicle “coming towards [him] from behind the train tracks,” or, as one officer put it, “a little
over the length of a yard of a house.” Defendant argues this was grossly negligent because
Pagan saw the danger of executing a turn when he could see approaching traffic. However,
Pagan’s testimony indicates that his error was in underestimating how fast defendant’s vehicle
was traveling, an explanation that is certainly consistent with the fact that defendant was
speeding. Moreover, Pagan was traveling at a safe speed and a reasonable jury could not
conclude that an action as common as cutting a turn short constitutes gross negligence rather
than ordinary negligence. Pagan’s turn was not so unforeseeable that defendant should not be
considered the proximate cause of the victim’s death, especially considering that defendant was
so intoxicated that she made no effort to avoid the crash.8 For those reasons, even if the trial
court should have given a jury instruction on superseding intervening cause, it is unlikely that the
jury would have found that defendant was not a substantial cause of the accident. Accordingly,
if there was an instructional error, defendant was not prejudiced.

                                             IV. PSIR

        In her Standard 4 brief, defendant argues that we should remand to the trial court for
correction of her PSIR. We agree.


8
    Section 627 of the Michigan Vehicle Code, MCL 257.1 et seq., provides in part:
       (1) A person operating a vehicle on a highway shall operate that vehicle at a careful and
prudent speed . . . having due regard to the traffic . . . and any other condition existing at the
time. A person shall not operate a vehicle upon a highway at a speed greater than that which will
permit a stop within the assured, clear distance ahead. [MCL 257.627(1).]



                                                 -7-
         If a defendant challenges information in the PSIR and the trial court “finds the challenged
information inaccurate or irrelevant, it must strike that information from the PSIR before sending
the report to the Department of Corrections.” People v Maben, 313 Mich App 545, 554; 884
NW2d 314 (2015) (quotation marks and citation omitted). At sentencing, defendant challenged
the scoring of her prior record variables (PRV) on the ground that the PSIR inaccurately stated
that she was on probation at the time of the accident. The prosecutor agreed to rescore the PRVs
in accordance with defendant’s assertion. Thus, although the trial court did not expressly find
that defendant was not on probation at the time of the offenses, the court effectively made that
determination by rescoring the PRVs and sentencing defendant within the minimum sentencing
guidelines range. Accordingly, we remand to the trial court so that it may amend the PSIR to
reflect that defendant was not on probation.

                            V. SUFFICIENCY OF THE EVIDENCE

        Defendant contends via her Standard 4 brief that there was insufficient evidence to
sustain her convictions. We disagree.

        We review de novo claims of insufficient evidence. People v Kloosterman, 296 Mich
App 636, 639; 823 NW2d 134 (2012). Reviewing the evidence in a light most favorable to the
prosecution, we “determine whether the evidence was sufficient to allow any rational trier of fact
to find guilt beyond a reasonable doubt.” Id.

        Defendant argues that there was insufficient evidence for the jury to find that she was
driving her vehicle at the time of the accident. Contrary to defendant’s assertion on appeal, her
expert’s DNA analysis did not definitively establish that Williamson was the driver of the
vehicle. As the prosecutor argued at trial, one could accept Perlin’s findings and still conclude
that defendant—not Williamson—was in the driver’s seat when the vehicles collided and the
airbags deployed. Although Perlin found that both defendant’s and Williamson’s DNA was on
the driver-side airbag, defendant was a major donor while Williamson was a minor donor. This
evidence supports the conclusion that defendant was the driver of the vehicle.

        Defendant argues that her DNA transferred to the airbag when she climbed over the
driver’s seat to exit the vehicle. However, “it is unnecessary for the prosecutor to negate every
reasonable theory consistent with the defendant’s innocence. It is sufficient if the prosecution
proves its own theory beyond a reasonable doubt in the face of whatever contradictory evidence
the defendant may provide.” People v Carson, 189 Mich App 268, 269; 471 NW2d 655 (1991).
Further, if defendant was in the passenger seat when the airbags deployed, one would expect that
the amount of DNA mixture attributable to her would be more than 40%. Regardless if 40%
constitutes a major or minor donor in this case, it is significantly less DNA than what defendant
left on the driver-side airbag. Thus, even accepting Perlin’s findings, the DNA evidence is more
consistent with defendant being the driver of the vehicle than Williamson. Moreover, the jury
heard testimony about how Williamson’s DNA could have been present in the vehicle when the
airbags deployed even if he was not in the vehicle at the time of accident. In addition to driving
the vehicle the night of the accident, Williamson estimated that he had driven the vehicle on
about 15 other occasions. Additionally, in an interview with law enforcement, defendant
disclosed that she and Williamson had sex in her vehicle.



                                                -8-
        Setting aside the DNA evidence, substantial circumstantial evidence supported the jury’s
finding that defendant was the driver of the vehicle. Defendant was the owner of the vehicle.
Tarcia stopped at the crash and observed defendant exiting the vehicle. No witness saw anyone
else exiting the vehicle. Defendant then fled the scene, which was evidence of guilty knowledge.
People v Coleman, 210 Mich App 1, 4; 532 NW2d 885 (1995). Initially, she denied to the police
that she was even involved in the accident, and she did not identify Williamson as the purported
driver of the vehicle until a year after the accident. Williamson testified and denied being the
driver of the vehicle, which the jury apparently found credible. “This Court will not interfere
with the trier of fact’s role of determining the weight of the evidence or the credibility of
witnesses.” Kanaan, 278 Mich App at 619. Viewing the evidence in a light most favorable to
the prosecution, there was sufficient evidence presented for a rational jury to find that defendant
was the driver of the vehicle. For the reasons discussed above, there was also sufficient evidence
presented for a rational jury to find that defendant was a proximate cause of the accident.

                            VI. PROSECUTORIAL MISCONDUCT

       Defendant also argues in her Standard 4 brief that the prosecution engaged in improper
cross-examination of her expert witness and made multiple improper comments. We disagree.

        We review de novo allegations of prosecutorial misconduct “to determine whether the
defendant was denied a fair and impartial trial.” People v Atkins, 259 Mich App 545, 562; 675
NW2d 863 (2003). “Prosecutorial misconduct issues are decided case by case.” People v
Grayer, 252 Mich App 349, 357; 651 NW2d 818 (2002). “A prosecutor’s remarks must be
examined in context and evaluated in light of defense arguments and the relationship they bear to
the evidence admitted at trial to determine whether a defendant was denied a fair and impartial
trial.” People v Brown, 267 Mich App 141, 152; 703 NW2d 230 (2005). “Generally,
prosecutors are accorded great latitude regarding their arguments, and are free to argue the
evidence and all reasonable inferences from the evidence as they relate to their theory of the
case.” People v Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009). “[P]rosecutors may use
‘hard language’ when it is supported by evidence and are not required to phrase arguments in the
blandest of all possible terms.” People v Ullah, 216 Mich App 669, 678; 550 NW2d 568 (1996).

        Defendant presents numerous allegations of prosecutorial misconduct, primarily focusing
on the prosecutor’s cross-examination of defense expert Perlin. Specifically, the prosecutor
asked Perlin whether TrueAllele’s scientific reliability had been proven in a Michigan court
through a Daubert9 hearing, and he answered negatively. Defendant argues that this line of
questioning was improper considering that the prosecutor declined to request a Daubert hearing
for her expert.10 On cross-examination, a party “has a right to draw out from the witness and lay
before the jury anything tending or which may tend to contradict, weaken, modify, or explain the


9
    Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993).
10
   Because the prosecutor did not request a Daubert hearing, the trial court did not rule on the
reliability of Perlin’s methods. Therefore, TrueAllele’s reliability is not properly before us, and
we decline to make a ruling on that matter as defendant requests.



                                                -9-
testimony of the witness on direct examination or which tends or may tend to elucidate the
testimony or affect the credibility of the witness.” People v Bell, 88 Mich App 345, 349; 276
NW2dd 605 (1979) (quotation marks and citation omitted). The prosecutor’s questions on this
matter properly highlighted for the jury that TrueAllele is a new and novel way to analyze DNA
evidence. Trial counsel could have requested a curative instruction to inform the jury that the
prosecution declined to request a Daubert hearing, and reversal is not warranted when the
prejudicial effect of the prosecutor’s statement could be cured by a curative instruction. People v
Unger, 278 Mich App 210, 235; 749 NW2d 272 (2008). Further, during redirect, Perlin testified
that TrueAllele has been ruled reliable in several other states and that no such hearing has been
held in Michigan. Thus, to the extent that the prosecutor’s question was improper or misleading,
trial counsel cured any harm to defendant.

        Next, defendant argues that it was improper for the prosecutor to ask Perlin about his
compensation and to argue that the jury should consider the fact that he was being paid for his
testimony in weighing his credibility. MRE 611(c) provides that “[a] witness may be cross-
examined on any matter relevant to any issue in the case, including credibility.” Evidence of a
witness’s bias is “almost always relevant.” People v Layher, 464 Mich 756, 764; 631 NW2d 281
(2001) (quotation marks and citation omitted). The fact that an expert witness is being paid to
testify is relevant to his or her credibility because an expert witness may slant his or her
testimony in favor of the retaining party. See id. at 763. Thus, it was not improper for the
prosecutor to question Perlin about his compensation. Further, once evidence of an expert’s
compensation was elicited, the prosecutor was “free to argue from the evidence presented at trial
that an expert witness had a financial motive to testify.” Unger, 278 Mich App at 237.

         Defendant takes issue with the prosecutor confirming with Perlin that he did not have a
“wet laboratory” and asking questions about his staff member’s degrees. There was nothing
improper about these questions. On direct examination, Perlin testified at length about
TrueAllele and how this program works and therefore opened the door to questions about his
work facility and the people who execute the TrueAllele software. More generally, defendant
contends that the prosecutor impermissibly denigrated Perlin. As noted, the prosecutor had a
right to a thorough cross-examination and he was not required to do so in the blandest possible
terms. We also note that defendant does not argue that the prosecutor denigrated her or her
counsel. Viewed in context, the prosecutor’s cross-examination of Perlin did not deny defendant
a fair trial.

         Defendant also argues that the prosecutor mischaracterized the DNA evidence.
“The prosecutor may not make a statement of fact that is unsupported by the evidence. But
the prosecutor may argue reasonable inferences arising from the evidence to the extent that the
inferences relate to the prosecutor’s theory of the case.” People v Lane, 308 Mich App 38, 67;
862 NW2d 446 (2014) (footnotes omitted). Defendant contends that the prosecutor erred in
telling the jury that Williamson’s DNA could have transferred to the airbag without him being in
the vehicle at the time of the accident. However, while the experts testified that a secondary
transfer of DNA was less probable than a direct transfer, they also agreed that such a transfer is
possible. Thus, the prosecutor did not commit misconduct in making this argument to the jury.
Rather, the prosecutor made a reasonable inference from the evidence that Williamson’s DNA
was deposited on the driver-side airbag through a secondary transfer.



                                               -10-
       Defendant also argues that the prosecutor erred in stating that defendant was not a major
DNA contributor to the passenger-side airbag. Perlin estimated that about 40% of the DNA
found on that airbag belonged to defendant. Perlin conceded that it was unclear whether 40%
meant that defendant should be considered a major contributor, considering that the other
contributors were minor: “[T]he terminology is ambiguous. You could say she’s the
predominant contributor. Because some people call it major; some people call it minor.” Perlin
and the prosecutor also disagreed over whether Perlin referred to defendant as a “minor
contributor” in his report. So there was evidentiary support for the prosecutor’s argument that
defendant was not a major contributor to the passenger-side airbag. In sum, the prosecutor did
not misstate the DNA evidence.

        We have reviewed the remainder of defendant’s claims of prosecutorial misconduct and
conclude that they are without merit. Defendant argues that numerous comments by the
prosecutor in opening statements and closing arguments were either misleading or
misrepresentations of the evidence. Again, the prosecutor was allowed to make reasonable
inferences from the evidence and he was not required to state his arguments in the blandest terms
possible.11 We also conclude that there is no merit in defendant’s claim that the prosecutor
elicited false testimony from Tarcia.12

        We affirm defendant’s convictions and remand for correction of the PSIR. We do not
retain jurisdiction.



                                                           /s/ Christopher M. Murray
                                                           /s/ Douglas B. Shapiro
                                                           /s/ Michael J. Riordan




11
   For instance, defendant objects to the prosecutor stating that she “creamed” the other vehicle
in the crash.
12
   Defendant argues that Tarcia’s testimony that he saw defendant leaving the vehicle was “false”
because Tarcia did not report that observation to law enforcement. However, there is nothing in
the record to support this assertion. Officer Ron Wise was cross-examined about whether Tarcia
told him that defendant offered money for a ride from the accident scene; he did not testify that
Tarcia did not report seeing defendant exit the vehicle.



                                              -11-
