            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 PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                     March 12, 2020
                Plaintiff-Appellee,

 v                                                                   No. 346777
                                                                     Wayne Circuit Court
 EDWIN EUGENE ZEHFUSS,                                               LC No. 18-006434-01-FH

                Defendant-Appellant.


Before: STEPHENS, P.J., and CAVANAGH and SERVITTO, JJ.

PER CURIAM.

        Defendant appeals as of right his bench trial conviction of operating while intoxicated
(OWI) MCL 257.625(1), third-offense MCL 257.625(9)(c). Defendant was sentenced to two
years’ probation. We affirm.

                                            I. FACTS

       On June 25, 2018, at approximately 9:26 p.m., city of Canton Police Officer Matthew
Delong (Delong) responded to a 911 call made by Robert Taipalus stating that defendant was
passed out on the sidewalk at a rest stop located at I-275 and Palmer Road in Canton, Michigan.
Delong’s body camera recorded defendant’s statements and the events that transpired upon
DeLong’s arrival. Delong observed defendant standing outside near the driver’s side of
defendant’s vehicle. The vehicle was not running and the keys were in the center console.
Defendant’s speech was slurred, he reeked of alcohol, and his eyes were bloodshot. Defendant
told Delong that he drove to the I-275 rest stop and thought that he had been there since 7:30 p.m.
There was no indication that someone else drove defendant to the rest stop. Defendant failed
numerous field sobriety tests, and refused to take the DataMaster breathalyzer test.

         Defendant gave multiple conflicting statements as to where he consumed alcohol.
Defendant told Delong that 1) he was drinking at the rest stop, 2) that he was drinking at a Hungry
Howie’s parking lot, 3) that he was drinking at a barbeque place, and 4) that he had seven shots of
vodka at Buffalo Wild Wings. At trial, Delong agreed that, based on defendant’s statements, he
did not know where defendant had been drinking. At one point, defendant told Delong that he had
his last drink at 6:30 p.m. “prior to leaving the bar.” When Delong asked defendant, why he drove


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to the rest stop, defendant responded, “I wanted to be smart. I did not want to be on the road.” and
that he did not want “to kill anyone.” Delong searched defendant’s vehicle for liquor, but found
none. Delong arrested defendant, and obtained a search warrant to draw defendant’s blood. At
12:50 a.m., defendant’s blood contained .283 grams of alcohol per 100 milliliters of blood.

         At trial, Taipalus and defendant’s mother, Linda Zehfuss, testified on defendant’s behalf.
Taipalus testified that he was working out of his vehicle and had been staying at the I-275 rest stop
since May 2018. He testified that defendant was at the rest stop so often, approximately three to
four times a week, that he thought defendant was living there too. On the day defendant was
arrested, Taipalus arrived at the rest stop at 5:30 p.m. Taipalus testified that defendant was already
there. He testified that defendant appeared normal. While sitting at a picnic table with the
defendant, Taipalus observed defendant to be drinking from a red cup and that defendant went
back and forth to defendant’s vehicle to refill the cup. Taipalus denied knowing what was in the
cup. Taipalus testified that he left the rest stop at approximately 8:15 p.m., and when he returned
it was dark out, the police and ambulance were there, and he did not see the defendant. Mrs.
Zehfuss agreed that her son had an alcohol problem and testified that defendant had been sleeping
at the rest stop. She testified that she went to the impound to retrieve defendant’s vehicle after his
arrest and that while there, she searched defendant’s vehicle because she figured that if defendant
were arrested for “a DUI”, there had to be “something in the car.” She testified that her search of
the vehicle was lengthy because defendant “had so much stuff in the back of his car”. She stated
that she found a “VO bottle” underneath a sweatshirt tucked under the backseat that was three-
fourths full. Mrs. Zehfuss testified that this was not the first time she had found whiskey bottles
in defendant’s vehicle. She brought defendant’s vehicle back to her home and cleaned it out. After
it was clean, she placed the VO bottle back underneath the sweatshirt, tucked it back under the
backseat, and took a photograph of it. That photograph was introduced into evidence.

        Defendant was found guilty of OWI. The court found that defendant’s statements to
Delong established that defendant believed he was under the influence while driving and arrived
at the rest stop intoxicated. The court considered Taipalus’s and Mrs. Zehfuss’s conflicting
testimony concerning whether defendant further consumed liquor while at the rest stop. The court
found Taipalus’s testimony regarding defendant’s behavior and demeanor on the night of incident
and having never seen defendant consume alcohol at the rest stop incredible.

                             II. SUFFICIENCY OF THE EVIDENCE

        On appeal, defendant contends that the prosecution failed to present sufficient evidence to
sustain defendant’s conviction. We disagree.

                                  A. STANDARD OF REVIEW

         This Court reviews de novo a challenge to the sufficiency of the evidence in a bench trial.
People v Lanzo Constr Co, 272 Mich App 470, 473-474; 726 NW2d 746 (2006). “[W]hen
reviewing sufficiency of the evidence claims, courts should view all the evidence--whether direct
or circumstantial--in a light most favorable to the prosecution to determine whether the prosecution
sustained its burden.” People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). “It is for
the trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the
evidence and to determine the weight to be accorded those inferences.” Id. We “will not interfere

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with the trier of fact’s role of determining the weight of the evidence or the credibility of
witnesses.” People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008). “Circumstantial
evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of
the elements of a crime.” People v Allen, 201 Mich App 98, 100; 505 NW2d 869 (1993). “All
conflicts in the evidence must be resolved in favor of the prosecution.” Kanaan, 278 Mich App at
618–619.

        Defendant implies that his conviction was also contrary to the great weight of the evidence.
“A trial court may grant a motion for a new trial based on the great weight of the evidence only if
the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice
to allow the verdict to stand.” People v Unger, 278 Mich App 210, 232; 749 NW2d 272 (2008)
(citation omitted). A “[d]efendant preserve[s] his argument that the verdict was against the great
weight of the evidence by moving for a new trial on this ground.” Id. Unpreserved challenges to
the great weight of the evidence are reviewed for plain error affecting the defendant’s substantial
rights. People v Lopez, 305 Mich App 686, 695; 854 NW2d 205 (2014) (citation omitted). “To
avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have
occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial
rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999) (citation omitted). “The
third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome
of the lower court proceedings.” Id. “Reversal is warranted only when the plain, forfeited error
resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed]
the fairness, integrity or public reputation of judicial proceedings’ independent of the defendant’s
innocence.” Id. at 763–764 (citation and quotation marks omitted). Defendant did not move for a
new trial, thus, defendant’s great weight of the evidence issue is unpreserved. Because defendant’s
issue is unpreserved, this Court’s review is for plain error affecting defendant’s substantial rights.
Id. “Generally, to preserve an issue for appellate review, it must be raised, addressed, and decided
by the trial court.” People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61
(2007).
        “Whether a defendant’s conduct falls within the scope of a penal statute is a question of
statutory interpretation that is reviewed de novo.” People v Rea, 500 Mich 422, 427; 902 NW2d
362 (2017) (citation omitted). “Because courts are wary of creating crimes, penal statutes are to
be strictly construed and any ambiguity is to be resolved in favor of lenity[.]” People v Gilbert,
414 Mich 191, 211; 324 NW2d 834 (1982). Defendant failed to raise the issue of lenity in the trial
court, therefore, this portion of defendant’s issue is also unpreserved and is reviewed for plain
error affecting defendant’s substantial rights. Lopez, 305 Mich App at 695 (citation omitted).
                                          B. ANALYSIS

       “The Michigan Vehicle Code, MCL 257.1 et seq., prohibits a person from operating a
motor vehicle while intoxicated.” Rea, 500 Mich at 428. Defendant was convicted of OWI, third-
offense, under MCL 257.625, which states, in part:

       (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 if the
       person is operating while intoxicated. As used in this section, “operating while
       intoxicated” means any of the following:

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       (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, 2021, 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.

“OWI is a hybrid version of two offenses: MCL 257.625(1)(a) prohibits operating a motor vehicle
under the influence of intoxicating liquor (OUIL) and MCL 257.625(1)(b) prohibits operating with
an unlawful bodily alcohol content (UBAL).” People v Hyde, 285 Mich App 428, 447-448; 775
NW2d 833 (2009). “Therefore, under MCL 257.625(1), OWI requires proof of three elements:
(1) the defendant operated a motor vehicle (2) on a highway or other place open to the general
public or generally accessible to motor vehicles (3) while under the influence of liquor or a
controlled substance, or a combination of the two, or with a blood alcohol content of 0.08 grams
or more per 100 milliliters of blood. Notably, the third element is disjunctive; that is, it can be
satisfied in either of the two ways.” Id. at 448.

       Defendant argues that he became intoxicated at the rest stop and asserts that if his
statements to Delong are excluded, there was insufficient evidence to support the trial court’s
finding that defendant was operating a vehicle while intoxicated. We disagree.

         Defendant first told Delong that he consumed vodka at the rest stop. However, after a
search for evidence of vodka in defendant’s vehicle turned up nothing, defendant told Delong he
drank seven shots of vodka at a local restaurant, consumed too many shots too quickly, and then
drove his vehicle to the I-275 rest stop because he wanted to be smart, get off the road and not kill
anyone. A logical inference from defendant’s statements was that defendant understood that he
had consumed a large amount of alcohol before driving his vehicle to the rest stop and that he was
conscious of his inebriated state and continued to drive. However, unlike cases cited by the
defendant where the only evidence of operation while intoxicated was a statement from a
defendant, here, there was additional evidence to support the trial court’s finding that defendant
operated his vehicle while intoxicated. It is uncontroverted that defendant was visibly intoxicated
when found at the rest stop. His speech was slurred, his eyes were bloodshot, and he reeked of
alcohol. He also failed numerous field sobriety tests and refused to undergo the DataMaster
breathalyzer test. A blood test later confirmed that defendant’s UBAL was above the legal limit
of .08, specifically, that defendant’s blood contained .283 grams of alcohol per 100 milliliters of
blood. Defendant’s alternative versions of having become intoxicated at the rest stop were in
conflict with the officer finding no alcohol on site. We acknowledge that defendant’s mother
provided testimony that she later found a vodka bottle that was three-fourths full in the rear of the
vehicle under clothing. We also note that Taipalus offered evidence supporting the alternative
theory that defendant became intoxicated at the rest stop. No expert witness testimony was offered
in this case. The court made a credibility finding. We defer to the court’s special ability to make
credibility determinations in the first instance. Kanaan, 278 Mich App at 619. Since the ultimate
verdict was supported by more than a statement by the admittedly intoxicated defendant, we will
not disturb the verdict. This evidence was sufficient for the trial court to properly find that the


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prosecution proved that defendant was driving under the influence of intoxicating liquor, in
violation of MCL 257.625(1)(a).

      Defendant also argues that the rule of lenity militates in favor of finding that MCL
257.625(1) does not include the conduct charged. We find this contention meritless.

        “The rule of lenity provides that criminal statutes cannot be extended to cases not included
within the clear and obvious import of their language and that if there is doubt as to whether the
act charged is embraced in the prohibition, that doubt is to be resolved in favor of the defendant.”
Rea, 500 Mich at 451 n 10 (McCormack, J., dissenting); (citations and quotation marks omitted).
A “statute is sufficiently definite if its meaning can be fairly ascertained by reference to judicial
interpretations, the common law, dictionaries, treatises, or the commonly accepted meanings of
the words.” People v Lueth, 253 Mich App 670, 676; 660 NW2d 322 (2002).

        A plain reading of the Motor Vehicle statute prohibits individuals from driving while
intoxicated on a highway. MCL 257.625(1) (“A person . . . shall not operate a vehicle upon a
highway or other place open to the general public . . . including an area designated for the parking
of vehicles, within this state if the person is operating while intoxicated.”). The statute is not
ambiguous as applied here. Defendant stated that he consumed a large amount of alcohol and then
drove himself to the rest stop. He was visibly intoxicated and had an UBAL over twice the legal
limit. Because defendant’s conduct fell within the statutory language of MCL 257.625(1), the rule
of lenity is inapplicable to his case. People v Wakeford, 418 Mich 95, 113-114; 341 NW2d 68
(1983) (“The rule of levity properly applies only in the circumstances of an ambiguity, or in the
absence of any firm indication of legislative intent.”).

        We further reject defendant’s contention that the verdict was against the great weight of
the evidence where other than defendant’s mention within the standard of review section of his
appellate brief, defendant failed to support his argument with legal analysis. People v Johnson,
315 Mich App 163, 199; 889 NW2d 513 (2016). Consequently, defendant fails to show that the
evidence preponderates so heavily against the trial court’s verdict “that it would be a miscarriage
of justice to allow the verdict to stand.” Unger, 278 Mich App at 232 (citation omitted). As
already indicated, the evidence presented was sufficient to support defendant’s OWI conviction.

       Affirmed.



                                                              /s/ Cynthia Diane Stephens
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Deborah A. Servitto




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