                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    October 21, 2014
               Plaintiff-Appellee,

v                                                                   No. 315763
                                                                    Genesee Circuit Court
RAPHEL DANGELO DORROUGH,                                            LC No. 12-030958-FH

               Defendant-Appellant.


Before: JANSEN, P.J., and SAAD and DONOFRIO, JJ.

PER CURIAM.

       Defendant appeals by right his jury-trial convictions of operating while intoxicated
causing death, MCL 257.625(4), and reckless driving causing death, MCL 257.626(4), for which
he was sentenced to concurrent prison terms of 86 months to 15 years. We affirm.

        During the early morning hours of June 7, 2011, Jaryn Stevens asked his best friend,
Larenzo Bradford, for help because Stevens’s car had run out of gas. Bradford responded to
Stevens’s plight, and Stevens got out of his car as Bradford filled the gas tank for him. Bradford
noticed a car approaching from behind Stevens’s car “faster than normal.” Bradford, concerned
that the oncoming vehicle was going to hit Stevens’s car, told Stevens, “[W]e got to move out of
the road.” Just as the oncoming car was about to hit Stevens’s disabled car, it swerved into the
lane where both men were standing, hitting them. Bradford was injured and Stevens was killed.

        Defendant argues that the trial court erred by declining his request to instruct the jury
regarding the alleged contributory negligence of Stevens. In particular, defendant maintains that
the jury should have been permitted to determine (1) whether Stevens was grossly negligent in
jumping out in front of defendant’s vehicle, and (2) whether Stevens’s alleged gross negligence
was an intervening, superseding cause that displaced defendant’s driving as the proximate cause
of Stevens’s death. We disagree.

        Issues of law arising from jury instructions are reviewed de novo on appeal, but the trial
court’s determination whether an instruction is applicable to the facts of the case is reviewed for
an abuse of discretion. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006); People v
Hartuniewicz, 294 Mich App 237, 242; 816 NW2d 442 (2011).

      A defendant is entitled to have a properly instructed jury consider the evidence against
him. People v Riddle, 467 Mich 116, 124; 649 NW2d 30 (2002). The trial court must instruct

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the jury not only on all the elements of the charged offense, but also on material issues, defenses,
and theories that are supported by the evidence. People v Anstey, 476 Mich 436, 453; 719 NW2d
579 (2006). The trial court is only required to give an instruction if it is supported by the
evidence. People v McKinney, 258 Mich App 157, 163; 670 NW2d 254 (2003). “Even if the
instructions are imperfect, there is no error if they fairly presented the issues to be tried and
sufficiently protected the defendant’s rights.” People v Milton, 257 Mich App 467, 475; 668
NW2d 387 (2003).

        Causation is an issue for the finder of fact. People v McKenzie, 206 Mich App 425, 431;
522 NW2d 661 (1994). “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), modified on other grounds by People v
Derror, 475 Mich 316 (2006). A defendant’s conduct is a factual cause of an injury if the injury
would not have occurred but for the defendant’s conduct. Schaefer, 473 Mich at 436. 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. Id. In determining whether proximate causation exists,
“it is necessary to examine whether there was an intervening cause that superseded the
defendant’s conduct such that the causal link between the defendant’s conduct and the victim’s
injury was broken.” Id. at 436-437. “The standard by which to gauge whether an intervening
cause supersedes, and thus severs the causal link, is generally one of reasonable foreseeability.”
Id. at 437.

        “Proximate causation ‘is a legal construct designed to prevent criminal liability from
attaching when the result of the defendant’s conduct is viewed as too remote or unnatural.’ ”
People v Feezel, 486 Mich 184, 195; 783 NW2d 67 (2010), quoting Schaefer, 473 Mich at 436.
“Ordinary negligence is considered reasonably foreseeable, and it is thus not a superseding cause
that would sever proximate causation.” Id. Gross negligence is “more than an enhanced version
of ordinary negligence” and means “ ‘wantonness and disregard of the consequences which may
ensue. . . .’ ” Id., quoting People v Barnes, 182 Mich 179, 198; 148 NW 400 (1914).

        The contributory negligence instruction requested by defendant, CJI2d 16.20, provides:
“If you find that [the deceased] was negligent, you may only consider that negligence in deciding
whether the defendant’s conduct was a substantial cause of the accident.” Both crimes for which
defendant was charged contain an element of causation. The court instructed the jury according
to CJI2d 15.11, operating while intoxicated causing death, and specifically recited the causation
element relevant to the issue:

               Fifth, that the defendant’s operation of the vehicle caused the victim’s
       death. To “cause” the victim’s death, the defendant’s operation of the vehicle
       must have been a factual cause of the death, that is, but for the defendant’s
       operation of the vehicle the death would not have occurred. In addition,
       operation of the vehicle must have been a proximate cause of death, that is, death
       or serious injury must have been a direct and natural result of operating the
       vehicle. [Emphasis added.]

        Likewise, the court instructed the jury according to CJI2d 15.16, reckless driving causing
death, including the causation requirement of that offense:

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               Third, that the defendant’s operation of the vehicle caused the victim’s
       death. To “cause” the victim’s death, the defendant’s operation of the vehicle
       must have been a factual cause of the death, that is, but for the defendant’s
       operation of the vehicle the death would not have occurred. In addition,
       operation of the vehicle must have been a proximate cause of death, that is, death
       or serious injury must have been a direct and natural result of operating the
       vehicle. [Emphasis added.]

       Stevens’s alleged contributory negligence was only relevant, if at all, to the issue of
whether defendant’s driving was a proximate cause of Stevens’s death. The record shows that
Stevens remained inside his disabled car until Bradford arrived with the gasoline necessary to get
the vehicle running again. Stevens got out of the car as Bradford filled the gas tank for him.
When Bradford noticed defendant’s car approaching from behind at a high rate of speed,
Bradford told Stevens, “[W]e got to move out of the road.” This statement was presumably
made with great urgency. The record shows that, while Bradford sought protection from
Stevens’s car, Stevens “made a run for it” in reaction to the imminent danger.

        Applying the reasoning of Feezel and Schaefer to the facts of this case, it is clear that the
factual cause of Stevens’s death was defendant’s conduct, because the death would not have
occurred but for defendant’s driving. Schaefer, 473 Mich at 436. In addition, Stevens’s death
was the direct and natural result of defendant’s driving; therefore, defendant’s driving constituted
the proximate cause of Stevens’s death as well. Id. Even viewing the evidence in a light most
favorable to defendant, reasonable minds could not logically conclude that Stevens’s actions, in
attempting to flee the imminent danger posed by defendant’s rapidly approaching vehicle, were
grossly negligent or in “wanton disregard of the consequences.” To the contrary, Stevens was
reacting to Burton’s warning and likely his own perception of the danger when he tried to avoid
it. Thus, Stevens’s actions were not a superseding, intervening cause sufficient to break the
causal chain between defendant’s conduct and Stevens’s death, Schaefer, 473 Mich at 438, and
did not support the requested contributory-negligence jury instruction. And even if Stevens’s
actions could be viewed as rising to the level of ordinary negligence, those actions were
reasonably foreseeable by defendant under the circumstances and accordingly not a superseding
cause that would sever proximate causation. Feezel, 486 Mich at 193, citing Schaefer, 473 Mich
at 437-438. Because the record does not show that the actions of Stevens rose to the level of
gross negligence, as is required to constitute an intervening, superseding cause sufficient to break
the causal chain, the trial court properly declined to give the contributory negligence instruction.

       Defendant next argues that, because the offenses of operating while intoxicated1 and
reckless driving are, by definition, necessarily included lesser offenses of operating while



1
  Defendant frames the issue on appeal as an error in failing to instruct on “operating while
impaired.” This is incorrect, as the record quite clearly reveals that the instruction requested by
defendant’s trial counsel was for “operating while intoxicated,” and that he cited CJI2d 15.1
numerous times. This Court assumes, based on the record, that the challenged instruction is the
“operating while intoxicated” offense of MCL 257.625(1) and CJI2d 15.1.


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intoxicated causing death and reckless driving causing death, the jury should have been
instructed on these lesser offenses. Again, we disagree.

        Whether an offense is a lesser-included offense is a question of law that this Court
reviews de novo. People v Heft, 299 Mich App 69, 73; 829 NW2d 266 (2012). “[A] trial court’s
determination whether a jury instruction is applicable to the facts of the case is reviewed for an
abuse of discretion.” Gillis, 474 Mich at 113. Whether instructional error violates a defendant’s
constitutional rights is a question of law that this Court reviews de novo. Heft, 299 Mich App at
73.

         The trier of fact may find a defendant guilty of a lesser offense if the lesser offense is
necessarily included in a greater offense. Heft, 299 Mich App at 73. To be a lesser included
offense, the elements necessary for commission of the greater offense must subsume the
elements necessary for commission of the lesser offense. Id. The elements of the lesser offense
are subsumed when all the elements of the lesser offense are included in the greater offense. Id.
If the trial court does not instruct the jury on a lesser included offense, the error requires reversal
if the evidence at trial clearly supported the instruction. Id. “However, the trier of fact may only
consider offenses that are ‘inferior to the greater offense charged.’ The trier of fact may not
consider cognate offenses.” Heft, 299 Mich App at 74, citing People v Cornell, 466 Mich 335,
354–355; 646 NW2d 127 (2002). Cognate offenses share several elements, and are of the same
class or category as the greater offense, but the cognate lesser offense has some elements not
found in the greater offense. People v Mendoza, 468 Mich 527, 532 n 4; 664 NW2d 685 (2003).

        A requested instruction on a necessarily included lesser offense is proper if the charged
greater offense requires the jury to find a disputed factual element that is not part of the lesser
included offense and a rational view of the evidence would support it. Cornell, 466 Mich at 357.
To be supported by a rational view of the evidence, a lesser included offense must be justified by
the evidence. People v Steele, 429 Mich 13, 20; 412 NW2d 206 (1987), overruled in part on
other grounds by Cornell, 466 Mich at 335. Proof of an element differentiating the two crimes
must be in dispute sufficiently to allow the jury to consistently find the defendant not guilty of
the charged offense but guilty of the lesser offense. Steele, 429 Mich at 20; Heft, 299 Mich App
at 77.

      Defendant was charged with operating a vehicle while intoxicated causing death, MCL
257.625(4), which is made up of the following elements:

              (1) the defendant was operating his or her motor vehicle in violation of
       MCL 257.625(1), (3), or (8); (2) the defendant voluntarily decided to drive,
       knowing that he or she had consumed an intoxicating agent and might be
       intoxicated; and (3) the defendant’s operation of the motor vehicle caused the
       victim’s death. [Schaefer, 473 Mich at 434.]

The lesser offense of operating a vehicle while intoxicated, MCL 257.625(1), is made up of the
following elements:
               (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

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       if the person is operating while intoxicated. As used in this section, “operating
       while intoxicated” means either 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.

                (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, or,
       beginning October 1, 2018, the person has an alcohol content of 0.10 grams or
       more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of
       urine.

See also Bloomfield Twp v Kane, 302 Mich App 170, 182; 839 NW2d 505 (2013).

       Defendant was also charged with reckless driving causing death, which requires that (1)
the defendant operates a motor vehicle “in willful or wanton disregard for the safety of persons
or property,” and (2) the defendant’s operation “causes the death of another person.” MCL
257.626(4); see also People v Jones, 302 Mich App 434, 439; 839 NW2d 51 (2013). To be
convicted of reckless driving, a defendant must have operated a vehicle with “willful or wanton
disregard for the safety of persons or property.” MCL 257.626(1). The language of the
misdemeanor reckless driving offense is identical to the more serious offense of reckless driving
causing death, except for the “causing death” element.

        Defendant requested that the trial court instruct the jury on the crimes of operating while
intoxicated, CJI2d 15.1, and reckless driving, CJI2d 15.15, as necessarily included lesser
offenses. We agree that operating a motor vehicle while intoxicated is a necessarily included
lesser offense of operating a motor vehicle while intoxicated causing death, and that reckless
driving is a necessarily included lesser offense of reckless driving causing death. See Heft, 299
Mich App at 73. However, we cannot conclude that the trial court abused its discretion by
declining to give the requested instructions because, as the trial court observed, they were not
supported by a rational view of the evidence:

               Since the evidence is overwhelming that the deceased died as a result of
       being struck by the motor vehicle in this case—there is definitely a death. He was
       struck by a motor vehicle. There is no evidence other than that this defendant is
       the one driving the motor vehicle, the Nissan, at the time. I think a rational view
       of the evidence does not support the lesser includeds.

        The record supports the court’s finding in this regard and we perceive no error. The
“causing death” element, which differentiated the charged offenses from the lesser offenses in
question, was not sufficiently in dispute to allow the jury to find defendant not guilty of the
charged offenses but guilty of the lesser offenses. Steele, 429 Mich at 20; Heft, 299 Mich App at
77. The trial court did not err by determining that the requested instructions were not supported
by a rational view of the evidence. Cornell, 466 Mich at 357.




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Affirmed.

                  /s/ Kathleen Jansen
                  /s/ Henry William Saad
                  /s/ Pat M. Donofrio




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