                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    April 20, 2017
               Plaintiff-Appellee,

v                                                                   No. 330780
                                                                    Macomb Circuit Court
RUSSELL HUMES,                                                      LC No. 2014-001817-FH

               Defendant-Appellant.


Before: FORT HOOD, P.J., and JANSEN and HOEKSTRA, JJ.

PER CURIAM.

        Defendant was convicted of reckless driving causing death, MCL 257.626(4), and
violating licensing restrictions, MCL 257.312. He was sentenced to 7 to 15 years’ imprisonment
for reckless driving and 90 days in jail for violating his licensing restrictions. He appeals as of
right. Because defendant was not denied the effective assistance of counsel, we affirm.

        Defendant’s convictions arise from a September 2013 car accident, which resulted in the
death of the driver of another vehicle. Specifically, the evidence showed that, while travelling
westbound on 19 Mile Road at 50 mph, defendant drifted across three lanes of traffic, crossed the
centerline, and crashed into a vehicle traveling in the opposite direction. The driver of the other
vehicle died as a result of the crash. After the crash, defendant was taken to a hospital. He
acknowledged that he had taken two medications that morning: Lyrica and Prozac, both of which
come with warnings not to use with alcohol. Although defendant denied the use of alcohol, a
serum blood test at the hospital showed that defendant’s blood-alcohol level was .06. Defendant
pleaded guilty to violating licensing restrictions, and a jury convicted defendant of reckless
driving causing death.1 Defendant now appeals as of right.

       On appeal, defendant argues that he was denied the effective assistance of counsel on two
bases. First, defendant maintains that his attorney provided ineffective assistance by stipulating
to the admission of the hospital blood test, which involved less “elaborate” testing than that
employed by the Michigan State Police for criminal purposes. According to defendant, counsel


1
 Defendant was found not guilty of operating a vehicle while intoxicated causing death, MCL
257.625(4).


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should have challenged the reliability of the testing method in view of the superior forensic
testing available and “highlighted the deficiencies in the chain of evidence.” Defendant asserts
that the test results were inadmissible or that, at a minimum, defense counsel should have
pursued these issues through cross-examination of the prosecution’s expert. Second, defendant
also contends that counsel provided ineffective assistance by failing to object to the scoring of
offense variables (OVs) 3 and 18 because, considering only the evidence relating to the
sentencing offense, the evidence does not establish that he was visibly impaired. We disagree.

        Defendant failed to move the trial court for a new trial or a Ginther2 hearing, meaning
that he failed to preserve his ineffective assistance of counsel claim.3 People v Petri, 279 Mich
App 407, 410; 760 NW2d 882 (2008). In the absence of a Ginther hearing, our review of
defendant’s ineffective assistance claim is limited to mistakes apparent on the record. People v
Woolfolk, 304 Mich App 450, 454; 848 NW2d 169 (2014); People v Payne, 285 Mich App 181,
188; 774 NW2d 714 (2009).

        “Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.” People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012). “To
establish an ineffective assistance of counsel claim, a defendant must show that (1) counsel’s
performance was below an objective standard of reasonableness under prevailing professional
norms and (2) there is a reasonable probability that, but for counsel’s error, the result of the
proceedings would have been different.” Id. A defendant claiming ineffective assistance also
bears the burden of establishing the factual predicate for the claim. People v Carbin, 463 Mich
590, 600; 623 NW2d 884 (2001). Decisions regarding what evidence to present, and what
objections to make, are considered matters of trial strategy, and this Court will not substitute its
judgment for counsel’s regarding matters of trial strategy. People v Unger, 278 Mich App 210,
242; 749 NW2d 272 (2008); People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002).

        On appeal, defendant first argues counsel erred by stipulating to the hospital blood test
results. He claims the test results were inadmissible because the serum blood test at the hospital
for medical treatment purposes was unreliable as compared to whole blood testing done by the
Michigan State Police and that the prosecutor failed to establish the appropriate chain of custody.
However, defendant offers mere speculation to support his claim; that is, there is nothing in the
record to support the assertion that the blood serum test was unreliable or that a defect in the
chain of custody rendered the test inadmissible. In particular, admission of chemical test results
is authorized by MCL 257.625a(6), which provides, in part:




2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
3
 Defendant moved this Court to remand for an evidentiary hearing, but that motion was denied.
People v Humes, unpublished order of the Court of Appeals, entered August 16, 2016 (Docket
No. 330780). Although we denied his motion, to the extent defendant’s appeal involves a
challenge to the scoring of sentencing variables, that issue is considered preserved. Id. See also
MCL 769.34(10); People v Kimble, 470 Mich 305, 310; 684 NW2d 669 (2004).


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       (6) The following provisions apply with respect to chemical tests and analysis of a
       person’s blood, urine, or breath, other than a preliminary chemical breath
       analysis:

                                               ***

       (e) If, after an accident, the driver of a vehicle involved in the accident is
       transported to a medical facility and a sample of the driver's blood is withdrawn at
       that time for medical treatment, the results of a chemical analysis of that sample
       are admissible in any civil or criminal proceeding to show the amount of alcohol
       or presence of a controlled substance or other intoxicating substance in the
       person's blood at the time alleged, regardless of whether the person had been
       offered or had refused a chemical test. . . .

To be admissible under MCL 257.625(6), the test results must be both relevant and reliable.
People v Fosnaugh, 248 Mich App 444, 450; 639 NW2d 587 (2001). “[S]uppression of test
results is required only when there is a deviation from the administrative rules that call into
question the accuracy of the test.” Id.

        In this case, defendant makes no claim of a deviation from rules governing testing
procedures and simply relies on the fact that the hospital conducted the blood testing rather than
the state police. However, as written, the statute plainly contemplates testing at a medical
facility by medical personal. See People v Kulpinski, 243 Mich App 8, 26; 620 NW2d 537
(2000). There is certainly no statutory requirement for whole blood testing as opposed to serum
testing. Defendant fails to specifically identify anything in the record to support a conclusion
that the hospital test was unreliable so as to be rendered inadmissible and he has not made an
offer of proof from an expert that would tend to support this assertion.4 See People v Ackerman,
257 Mich App 434, 455; 669 NW2d 818 (2003). Likewise, defendant points to nothing in the
record to suggest that there was a break in the chain of custody that would affect the
admissibility of the test results. See generally People v White, 208 Mich App 126, 130; 527
NW2d 34 (1994). Without such evidence, defendant has failed to establish the factual predicate
of his claim, and he has failed to show that counsel erred in stipulating to the admission of those
results or that counsel performed unreasonably in his cross examination of the prosecutor’s
expert. Given that defendant has not shown the test was unreliable or otherwise inadmissible, he
has also failed to show that any challenge by counsel would have succeeded, meaning that
defendant has not shown a reasonable probability of a different outcome. See Ackerman, 257
Mich App at 455-456. Thus, his ineffective assistance claim must fail.


4
  While the testimony at trial indicated that there are differences between a serum test and a
whole blood test in how they are conducted and the results they produce, contrary to defendant’s
arguments, nothing in the testimony suggests that the serum test is considered unreliable.
Rather, an expert in toxicology was able to apply a standard conversion between the tests,
explaining that the difference between the two tests is approximately 16 percent, such that a .06
level on a serum blood test (often used by hospitals in the course of medical treatment) equates
to closer to a .05 level on a whole blood test (of the type more often used in law enforcement).


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        Defendant next argues that counsel erred in failing to object to the scoring of OV 3 and
OV 18. Specifically, defendant claims these offense variables did not apply because there was
no evidence to support a finding that he was under the influence of, or visibly impaired by,
alcohol and/or a controlled substance, especially where the jury acquitted him of driving while
intoxicated causing death. Defendant contends that the variables may only be scored in
reference to the sentencing offense and that any alcohol impairment or use of a controlled
substance related not to the sentencing offense but solely to the charge of driving while
intoxicated causing death.

        “A trial court determines the sentencing variables by reference to the record, using the
standard of preponderance of the evidence.” People v Osantowski, 481 Mich 103, 111; 748
NW2d 799 (2008). “A sentencing court may consider all record evidence before it when
calculating the guidelines, including, but not limited to, the contents of a presentence
investigation report, admissions made by a defendant during a plea proceeding, or testimony
taken at a preliminary examination or trial.” People v Ratkov (After Remand), 201 Mich App
123, 125; 505 NW2d 886 (1993). “Under the sentencing guidelines, the circuit court's factual
determinations are reviewed for clear error[.]” People v Hardy, 494 Mich 430, 438; 835 NW2d
340 (2013). “Whether the facts, as found, are adequate to satisfy the scoring conditions
prescribed by statute, i.e., the application of the facts to the law, is a question of statutory
interpretation, which an appellate court reviews de novo.” Id.

       OV 3 concerns physical injury to a victim. MCL 777.33(1). The trial court scored
defendant at 50 points for OV 3. Under OV 3, fifty points should be scored:

       if death results from the commission of a crime and the offense or attempted
       offense involves the operation of a vehicle . . . and any of the following apply:

              (i) The offender was under the influence of or visibly impaired by the use
       of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor
       and a controlled substance.

                (ii) The offender had 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 . . . .

               (iii) The offender’s body contained any amount of a controlled substance
       listed in schedule 1 under section 7212 of the public health code, 1978 PA 368,
       MCL 333.7212, or a rule promulgated under that section, or a controlled
       substance described in section 7214(a)(iv) of the public health code, 1978 PA 368,
       MCL 333.7214. [MCL 777.33(c).]

        In comparison, OV 18 addresses an operator’s ability as affected by alcohol or drugs.
MCL 777.48(1). The variable applies to the offense categories of crimes against a person and
crimes against public safety, if the offense or attempted offense involved the operation of a
vehicle. MCL 777.22(1), (5). The trial court scored defendant at 5 points for OV 18. Five
points is scored if the “offender operated a vehicle . . . while he or she was visibly impaired by
the use of alcoholic or intoxicating liquor or a controlled substance or a combination of alcoholic



                                                -4-
or intoxicating liquor and a controlled substance, or was less than 21 years of age and had any
bodily alcohol content.” MCL 777.48(1)(d).

        In this case, a preponderance of evidence supported the court’s assignment of points for
OV 3 and 18. The evidence established defendant had consumed alcohol, as he had a blood
alcohol level of .06. That he was visibly impaired by this alcohol consumption is clear from his
observable conduct. See generally People v Lambert, 395 Mich 296, 305; 235 NW2d 338
(1975). That is, while driving on the afternoon of a clear day, defendant crossed the center lane,
veered across several lanes of traffic, and caused a collision, killing the driver of the other car.
All of this supports a finding that defendant was visibly impaired at the time of the accident and
fully justified the court’s scoring decision. Moreover, contrary to defendant’s arguments, this
visible impairment occurred during his reckless driving causing death, and all of defendant’s
conduct in relation to the sentencing offense is properly considered when scoring OV 3 and OV
18. Cf. People v Chelmicki, 305 Mich App 58, 72; 850 NW2d 612 (2014). See also People v
McGraw, 484 Mich 120, 124; 771 NW2d 655 (2009). In short, OV 3 and OV 18 were properly
scored. It follows that any objection by defense counsel to the scoring of these variables would
have been futile, and counsel is not considered ineffective for failing to offer a futile objection.
People v Odom, 276 Mich App 407, 416; 740 NW2d 557 (2007). Thus, defendant’s ineffective
assistance claim is without merit.

       Affirmed.



                                                             /s/ Karen M. Fort Hood
                                                             /s/ Kathleen Jansen
                                                             /s/ Joel P. Hoekstra




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