            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 5, 2019
               Plaintiff-Appellant,

v                                                                  No. 347429
                                                                   Lapeer Circuit Court
KENNETH EDWARD RUSSELL,                                            LC No. 18-013340-FC

               Defendant-Appellee.


Before: BECKERING, P.J., and SAWYER and CAMERON, JJ.

PER CURIAM.

        In this interlocutory appeal, the prosecution appeals by leave granted1 from an opinion
denying the prosecution’s motion to amend the felony information. Defendant, Kenneth Edward
Russell, was charged with second-degree murder, MCL 750.317, operating while intoxicated
(“OWI”) causing death, MCL 257.625(4)(a), reckless driving causing death, MCL 257.626(4),
and carrying a concealed weapon (“CCW”), MCL 750.227. However, following the preliminary
examination, the district court declined to bind defendant over on the charge of second-degree
murder, and the circuit court declined to grant the prosecution’s motion to amend the information
and reinstate the charge. For the reasons stated below, we affirm.

                                I. FACTUAL BACKGROUND

       This case arises out of a fatal car accident that occurred in Lapeer, Michigan. Defendant
was driving east on a street that had a posted speed limit of 25 miles per hour. Defendant was
driving approximately 49 miles per hour. A witness who was driving ahead of defendant at the
time of the accident testified at the preliminary examination that he was driving along the street
when a flatbed truck in front of him slowed down, prompting him to slow down and to look in



1
 People v Kenneth Edward Russell, unpublished order of the Court of Appeals, entered March
13, 2019 (Docket No. 347429).




                                               -1-
his rearview mirror. As he looked in his rearview mirror, he saw “a car slamming on his brakes
and turning right and striking a tree.” The evidence established that, before hitting the tree,
defendant’s car struck the victim, a pedestrian on the sidewalk, sweeping her up onto the car’s
hood and crushing her against the tree, severing her legs and partially disemboweling her. The
passenger side of defendant’s car struck the tree, causing it to go into a rotation, where it then
struck a wood sign, a wood railing for a pedestrian bridge, and a steel guardrail before coming to
a stop. Tragically, the victim died before emergency medical services could be called.

        Police officer Jason Miner attempted to speak to defendant at the scene of the accident.
Defendant, who was 65-years old at the time of the accident, was incoherent and did not appear
to know that he was at the scene of an accident. Defendant could not name the location he was
driving from when the accident occurred. Defendant was so disoriented that he believed the
victim might be his sister, and he did not know whether anyone had been in the car with him. It
was unclear to Officer Miner whether defendant’s mental confusion was caused by the collision
or some other reason. Defendant was removed from his car using the Jaws of Life and taken to
the hospital. Officer Miner and Detective Sergeant Craig Gormley spoke to defendant at the
hospital, where defendant remained confused but began to make more sense. Defendant
remembered stopping at a three-way stop immediately before the accident occurred, but the next
thing he recalled was having been in an accident; he did not remember the accident itself or what
lead to its occurrence. At the hospital he was able to recall where he had been coming from at
the time of the accident. Defendant’s blood was tested for the presence of drugs and alcohol. No
alcohol was found; however, the test indicated that defendant’s blood contained compounds
typically found in marijuana, including 14 nanograms of THC per milliliter of blood.

        The prosecution charged defendant with second-degree murder, MCL 750.317, operating
while intoxicated (“OWI”) causing death, MCL 257.625(4)(a), reckless driving causing death,
MCL 257.626(4), and carrying a concealed weapon (“CCW”), MCL 750.227. Following
preliminary examination, the district court bound defendant over on all charges except for
second-degree murder. The prosecution filed a motion in the circuit court seeking to amend the
information to reinstate the second-degree murder charge, but the circuit court ruled that the
district court did not misinterpret the legal standard for second degree murder or abuse its
discretion in declining to bind defendant over on the second-degree murder charge.

                               II. MALICE – LEGAL STANDARD

         The prosecution argued in the circuit court and maintains before this Court that the
district court abused its discretion by using an incorrect legal standard in determining whether
the prosecution showed that defendant acted with malice with respect to the second degree
murder charge. We disagree.

         “A district court’s decision to bind a defendant over for trial will not be disturbed absent
an abuse of discretion.” People v Green, 260 Mich App 710, 713; 680 NW2d 477 (2004). “A
district court abuses its discretion if its decision ‘falls outside the range of principled outcomes.’
” People v Shami, 501 Mich 243, 251; 912 NW2d 526 (2018) (quotation marks and citation
omitted). This Court reviews de novo the circuit court’s decision concerning the question
whether the district court abused its discretion in deciding whether to bind a defendant over for


                                                 -2-
trial. People v Norwood, 303 Mich App 466, 468; 843 NW2d 775 (2013). We review questions
of law de novo. People v Armisted, 295 Mich App 32, 37; 811 NW2d 47 (2011).

       The district court declined to bind over defendant on a charge of second-degree murder.
The elements of second-degree murder are as follows:

       (1) a death, (2) the death was caused by an act of the defendant, (3) the defendant
       acted with malice, and (4) the defendant did not have lawful justification or
       excuse for causing the death. [People v Smith, 478 Mich 64, 70; 731 NW2d 411
       (2007).]

It is undisputed that a death caused by an act of the defendant occurred. At issue is whether the
prosecution presented sufficient evidence at the preliminary examination to establish probable
malice. “Malice is defined as ‘the intent to kill, the intent to cause great bodily harm, or the
intent to do an act in wanton and willful disregard of the likelihood that the natural tendency of
such behavior is to cause death or great bodily harm.’ ” People v Werner, 254 Mich App 528,
531; 659 NW2d 688 (2002) (citation omitted).

        The prosecution argues that, rather than adhering to the “willful and wanton” standard to
establish malice, the district court committed an abuse of discretion by holding the prosecution to
a higher standard than that required by law. In support of this contention, the prosecution directs
this Court to the following portion of the district court’s comments regarding whether bindover
on the second-degree murder charge was appropriate:

       [T]he situation with respect to homicide, 2nd degree murder, is that there be
       something in addition to [the] willful and [] wanton requirement. And this was
       not a fleeing and eluding situation. This was not something that shocks the
       conscience, other than the THC, which is why we do have laws that charge people
       with operating while intoxicated causing death, reckless driving causing death.

               And I’m going to respectfully not bind over on the 2nd degree murder. I
       don’t think that it comes to that level at this point in time. You can always -- if
       there’s something more that comes up, gentleman, you can bring it back to me.

        We agree with the circuit court that, viewed in context, and although inelegantly stated,
the district court was attempting to explain the existing state of the law that, in cases where an
intoxicated driver causes a death, the prosecution must show that the defendant’s actions were
uniquely egregious by demonstrating that the defendant engaged in “a level of misconduct that
goes beyond that of drunk [or intoxicated] driving.” People v Goecke, 457 Mich 442, 469; 579
NW2d 868 (1998).2 The district court’s use of phrases such as “fleeing and eluding,” and




2
  Goecke will be discussed later in this opinion. Of note with respect to drunk driving and a
second-degree murder charge, the Supreme Court noted in Goecke the following:



                                                -3-
“shocks the conscience,” appear to be legal colloquialisms used to express the district court’s
understanding that the prosecution was required to show that “malice requires egregious
circumstances” in cases involving drunk or intoxicated driving. Id. at 467. There is no evidence
that the district court actually applied an incorrect legal standard in determining whether
defendant should be bound over on the second-degree murder charge. Accordingly, the
prosecution’s first argument lacks merit.

                                         III. BINDOVER

        The prosecution next argues that the district court abused its discretion by finding that the
prosecution failed to present sufficient evidence to support a decision to bind defendant over on
the second-degree murder charge. We disagree.

        Generally, “[t]he purpose of a preliminary examination is to determine whether there is
probable cause to believe that a crime was committed and whether there is probable cause to
believe that the defendant committed it.” People v Perkins, 468 Mich 448, 452; 662 NW2d 727
(2003). The prosecution is not required to prove beyond a reasonable doubt that the defendant
committed a crime; rather, the prosecution “need present only enough evidence on each element
of the charged offense to lead a person of ordinary prudence and caution to conscientiously
entertain a reasonable belief of [the defendant’s] guilt.” Id. (quotation marks and citations
omitted). Therefore, charges may not be dismissed “merely because the prosecutor has failed to
convince the reviewing tribunal that it would convict.” Id. The question whether a defendant is
guilty beyond a reasonable doubt must always be reserved for the trier of fact. Id.

       The prosecution contends that the district court failed to follow the framework regarding
malice set forth in Werner, 254 Mich App at 531. In Werner, this Court defined malice as
follows:




       That the OUIL, causing death, statute does not limit the ability of the prosecution
       to charge an intoxicated driver with common-law offenses such as murder does
       not eliminate the people’s burden of proving beyond a reasonable doubt that the
       defendant engaged in wanton misconduct. More important, for purposes of
       avoiding the temptation to overcharge, it does not dilute the prosecutor's
       responsibility to be mindful that “[t]he preliminary examination should identify
       not simply those who are probably guilty but more precisely those who are
       probably convictable. The dissent contends that by finding sufficient evidence to
       support a bindover and the convictions today we adopt the position
       that drunk driving alone is sufficient to establish probable cause of malice. We
       disagree. The cases before us today involve a level of misconduct that goes
       beyond that of drunk driving [Goecke, 457 Mich at 468-469 (quotation marks and
       citations omitted).]




                                                -4-
       Malice is defined as the intent to kill, the intent to cause great bodily harm, or the
       intent to do an act in wanton and willful disregard of the likelihood that the
       natural tendency of such behavior is to cause death or great bodily harm. Malice
       may be inferred from evidence that the defendant intentionally set in motion a
       force likely to cause death or great bodily harm. The prosecution is not required
       to prove that the defendant actually intended to harm or kill. Instead, the
       prosecution must prove the intent to do an act that is in obvious disregard of life-
       endangering consequences. [Werner, 254 Mich App at 531.]

At issue is whether the prosecution presented sufficient evidence of the third type of malice, i.e.,
of defendant’s “intent to do an act in wanton and willful disregard of the likelihood that the
natural tendency of such behavior is the cause of death or great bodily harm.” Id. In order for a
defendant’s actions to rise to the level sufficient to satisfy this definition of malice, the defendant
must do more than merely drive while intoxicated, as “not every intoxicated driving case
resulting in a fatality constitutes second-degree murder.” Id. at 533 The prosecution must prove
that the defendant’s actions “disclosed ‘a level of misconduct that goes beyond that of drunk
driving.’ ” Id. (citation omitted).

        The Michigan Supreme Court addressed this very issue in People v Goecke, 457 Mich
442 (1998), which consolidated three cases involving drunk driving, traffic violations, collisions,
and fatalities. The first of the consolidated cases, People v Goecke, involved the question of
what level of conduct beyond that of driving while intoxicated provides evidence of malice
sufficient to bind a defendant over on a charge of second-degree murder. The defendant in
Goecke had a blood-alcohol level of .17 when he sped through a red light at approximately 70 to
80 miles per hour and struck another car, killing the driver. Goecke, 457 Mich at 449. The
prosecution presented evidence that, prior to the accident, defendant consumed between seven
and nine beers while he and a friend sat in defendant’s vehicle in the parking lot of a liquor store.
When a police cruiser drove into the parking lot, defendant and his friend drove out, looking for
another place to drink while drinking along the way. Id. at 448-449. After consuming even
more alcohol, defendant drove at high speeds along a main artery in Pontiac, nearly striking a
witness’s van. Id. at 449. Even after this near miss, the defendant continued to drive, eventually
speeding through a red light before crashing into the victim’s car. Id. After the crash, witnesses
heard the defendant say that he knew he should not have been driving, that he was too drunk and
was driving too fast. Id. at 470.

        The Supreme Court reasoned that the defendant’s pre-accident conduct of evading the
police by leaving the parking lot of the liquor store permitted the reasonable inference that the
defendant was aware that his level of intoxication was too great to drive. Id. at 470. The Court
further reasoned that the defendant was “aware of the extent of his impairment and lack of
control after [he] narrowly missed hitting another vehicle . . . .” Id. Disregarding these
warnings, defendant continued to drive, with a fatal result. The Supreme Court found in these
facts sufficient evidence of probable malice to support a bindover on a charge of second-degree
murder.” Id. at 471.

       The two cases consolidated with Goecke, People v Baker and People v Hoskinson,
addressed whether the prosecution had presented evidence sufficient to support the respective


                                                 -5-
defendants’ convictions for second-degree murder. We understand that the evidence required to
prove malice beyond a reasonable doubt at trial differs from that necessary to support a finding
of probable malice at a preliminary examination. See Perkins, 468 Mich at 452. We briefly
discuss Baker and Hoskinson merely to illustrate the type of evidence presented in cases such as
the one at bar, and because the prosecution argues on appeal in the instant case that the facts here
are “remarkably similar” to those our Supreme Court found to support a conviction for second-
degree murder in Baker.

        In Baker, the jury convicted the defendant of two counts of second-degree murder for
driving drunk and speeding at approximately 60 to 70 miles per hour through a 35-mile-per-hour
speed zone before colliding with another car and killing both its occupants. Id. at 451-452. The
prosecution presented evidence that the defendant lived about a mile from the site of the
accident, that other cars had been going across the intersection at the traffic light the defendant
ran before striking the victims’ car, and that he struck the victims’ car with extreme force. Id. at
471. Our Supreme Court concluded that one might reasonably infer from these facts that the
defendant was aware of the intersection and the traffic light, that he probably was driving faster
than approximated, and that as he approached the intersection, he likely could have seen the
other cars going through it across his path of travel. Id. Furthermore, the Court noted that the
defendant narrowly missed hitting two other cars before he hit the victims’ car, yet he kept
driving. Failing to heed any of these circumstances and warnings, Baker “placed himself in a
position, the results of which a reasonable person would know had the natural tendency to cause
death or great bodily harm.” Id. at 472. Although both Baker and the case at bar involve high-
speed driving and forceful collisions, as will be discussed more thoroughly below, the
prosecution in the case at bar identified no circumstances from which to infer probable malice.

        In Hoskinson, our Supreme Court likewise concluded that the prosecution presented
evidence from which the jury could reasonably infer that the defendant had acted with malice.
Hoskinson drank, and drove through a residential neighborhood at varying speeds between 40
and 60 miles per hour. Id. Hoskinson swerved to avoid an oncoming vehicle and lost control of
his car. Id. at 454. His car jumped over the curb and struck a four-year-old girl who was riding
her tricycle on the sidewalk. Id. Hoskinson’s vehicle dragged the girl’s body across two
residential lawns before he was able to regain control of the car. Id. The prosecution presented
evidence showing that, prior to the accident, Hoskinson had staggered from the bar at which he
had been drinking, and backed into the same parked car twice as he was attempting to leave the
bar’s parking lot. In addition, he was familiar with the residential neighborhood through which
he had driven, and was aware that it had speed dips at almost every intersection. He had swerved
to avoid hitting a car at a stop sign, which he then ran, and swerved again to avoid hitting an
oncoming car. In addition, the passengers in his car told him that he was driving too fast and
should slow down. All of this happened before the fatal accident and, according to the Supreme
Court’s reasoning, should have put Hoskinson on notice that he should not be driving.
Disregarding these circumstances, the defendant continued to drive. Id. at 471-472. The
Supreme Court held that, viewed in the light most favorable to the prosecution, this evidence was
sufficient to support the jury’s conviction of Hoskinson of second-degree murder. Id. at 472.

       In Werner, this Court relied on Goecke to determine whether a trial court erred in denying
the defendant’s motion for a directed verdict on a charge of second-degree murder. The


                                                -6-
evidence showed that the defendant had driven his truck on the wrong side of the road while
intoxicated and collided head-on with another vehicle, killing a passenger and seriously injuring
the driver. Werner, 254 Mich App at 530. Unlike in Goecke, Baker, and Hoskinson, the
prosecution did not present evidence of the Werner defendant’s behavior immediately prior to
the accident. Id. at 533-534. However, the prosecution did present evidence of a prior recent
instance in which the defendant experienced an alcohol-induced blackout while driving and
crashed his vehicle. Id. at 533. From this, the Court reasoned as followed:

       This is not a case where a defendant merely undertook the risk of driving after
       drinking. Defendant knew, from a recent prior incident, that his drinking did
       more than simply impair his judgment and reflexes. He knew that he might
       actually become so overwhelmed by the effects of alcohol that he would
       completely lose track of what he was doing with his vehicle. If defendant knew
       that drinking before driving could cause him to crash on boulders in front of a
       house, without any knowledge of where he was or what he was doing, he knew
       that another drunken driving episode could cause him to make another major
       mistake, one that would have tragic consequences. [Id.]

        In all of the aforementioned cases, the prosecution presented evidence of pre-accident
behavior that put the defendants on notice, or should have put them on notice, that they should
not have been driving and that the likely result of their driving or continuing to drive would be
death or great bodily harm. In each case, the defendant ignored the circumstances and warnings
and continued to drive, with tragic results. By contrast, the prosecution in the case at bar
presented no evidence of circumstances from which a factfinder could reasonably infer that
defendant willfully and wantonly disregarded the likelihood that his actions would result in death
or great bodily harm. As defendant notes, there was no proof admitted at the preliminary
examination that defendant had any prior incidents of impaired driving or that he had any
difficulties driving on the day of the incident preceding the accident at issue. The prosecution
stresses the speed at which defendant was traveling, defendant’s loss of control of his vehicle
during the crash, the force of the crash, and the severity of the victim’s injuries. 3 However, as
our Supreme Courts’ analysis of the consolidated cases in Goecke and this Court’s analysis in
Werner illustrates, speed and the horrific results of a crash, alone, are insufficient “to lead a
person of ordinary prudence and caution to conscientiously entertain a reasonable belief” that
defendant acted with probable malice. If they were, then every defendant in a drunk driving case
involving speeding and fatal results would be subject to a charge of second-degree murder. See
Werner, 254 Mich App at 533 (recognizing that “not every intoxicated driving case resulting in a
fatality constitutes second-degree murder”). Stated differently, although this case entails a


3
  Contrary to the prosecution’s contention, the fact that defendant’s cell phone was located on the
floor board of the driver’s side of the vehicle after the crash, without more, does not lead to the
“obvious inference” that he was using his phone while driving. No cell phone records were
admitted establishing use. In light of the car’s sudden and violent movements, and in the
absence of cell phone records establishing use of the phone before the crash, inferring that
defendant’s use of the phone from its post-crash position in the car is mere speculation.



                                                -7-
gruesome, tragic, and avoidable death at the hands of defendant, we cannot conclude from the
facts presented at the preliminary examination that the district court abused its discretion in
finding insufficient evidence of egregious circumstances that would distinguish this case from
other cases of operating while intoxicated causing death. See Goecke, 457 Mich at 469.

       Affirmed.



                                                          /s/ Jane M. Beckering
                                                          /s/ David H. Sawyer
                                                          /s/ Thomas C. Cameron




                                              -8-
