Opinion
No. 335330
10-17-2017
ERIC THIES, Plaintiff-Appellant, v. KENNETH MACHIELA, Defendant-Appellee.
UNPUBLISHED Ottawa Circuit Court
LC No. 15-004336-NF Before: MURRAY, P.J., and SAWYER and MARKEY, JJ. PER CURIAM.
Plaintiff Eric Thies appeals by right a judgment of no cause of action entered after a jury determined that defendant Kenneth Machiela was not negligent when his motor vehicle collided with a bicycle plaintiff was riding. Plaintiff argues that the trial court abused its discretion in permitting city of Holland Officer Casey Howe to testify. We affirm.
The accident occurred on October 17, 2013. Plaintiff testified that he was riding his bicycle on Cherry Street approaching the intersection with Michigan Avenue; he shifted the gears on his 14-speed bicycle, looked south on Michigan Avenue but saw that it was "clear to go," turned right into the right-hand lane of Michigan Avenue, shifted his gears again, and was one-third of the way to the next intersection when he was hit from the left and behind. Plaintiff introduced a photograph depicting a mark on the right front bumper of defendant's van underneath the front right headlight that plaintiff testified was "from the front of my bike." There was also damage to the right quarter panel of defendant's van, and plaintiff acknowledged that the damage to his bicycle occurred to its front wheel but not the fork. Plaintiff testified that proposed Exhibit B accurately depicted the intersection but not where the collision occurred.
Defendant testified that he was driving his van north on Michigan Avenue near Cherry Street in the city of Holland. Traffic entering Michigan Avenue from Cherry Street was required by a stop sign to yield to traffic on Michigan Avenue, which was not required to stop. Defendant testified he did not see plaintiff until he was about 10 feet away when plaintiff was on Cherry Street. He estimated that plaintiff was traveling about 15 miles per hour. Defendant testified that plaintiff rode his bicycle into the right front of his van. According to defendant, the damage to the right side of his van was from the accident, but that the mark on the right front of his bumper was made in an earlier incident when he "hit a snow bank," and "I never did have that repaired." Defendant denied as untrue plaintiff's version of the accident—that both plaintiff and defendant were traveling north on Michigan Avenue when the collision occurred. Defendant testified that if the accident happened as plaintiff said it did, "[m]y car damage would be different." Defendant further testified that Exhibit B accurately depicted the scene of the accident, and the trial court admitted it as a demonstrative exhibit.
After the presentation of the evidence at trial, during closing arguments, both parties asserted that their version of how the accident happened was supported by the physical evidence. Neither party objected to the trial court's final jury instructions. The jury deliberated for less than 40 minutes and returned with its verdict that defendant had not been negligent.
Based on the jury's verdict, a judgment of no cause of action was entered on October 11, 2016. Plaintiff now appeals by right.
I. PRESERVATION AND STANDARD OF REVIEW
To preserve an evidentiary issue for appellate review, the party claiming error must have objected at trial and specified the same ground for objection that the party asserts on appeal. MRE 103(a)(1); Genna v Jackson, 286 Mich App 413, 422; 781 NW2d 124 (2009). In this case, plaintiff preserved some but not all of the arguments he presents on appeal. Plaintiff preserved his argument that the testimony of Officer Howe was inadmissible because Howe lacked personal knowledge (MRE 602), was not a qualified expert (MRE 702), and that his testimony would be cumulative (MRE 403). Plaintiff also preserved an objection regarding relevance (MRE 401; MRE 402), and that the diagram that Howe prepared, Exhibit B, was inadmissible because it was hearsay (MRE 802). Plaintiff did not preserve, by presenting them to the trial court, his arguments that Howe's testimony was inadmissible lay opinion testimony (MRE 701), that it constituted improper comment on the credibility of another witness, or that the danger of unfair prejudice from the fact that the witness was a police officer substantially outweighed the probative value of the testimony (MRE 403).
A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion, which occurs "when the trial court chooses an outcome falling outside the range of principled outcomes." Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010). But a preliminary issue of law regarding the admissibility evidence, such as the construction of a rule of evidence, court rule or statute is reviewed de novo. Waknin v Chamberlain, 467 Mich 329, 332; 653 NW2d 176 (2002).
Unpreserved allegations of evidentiary error are reviewed for plain error affecting substantial rights. MRE 103(d); Wolford v Duncan, 279 Mich App 631, 637; 760 NW2d 253 (2008). To warrant relief, the appellant must show (1) there was an error; (2) the error was plain (i.e., clear or obvious), and (3) that the error affected substantial rights (i.e., that the error affected the outcome). People v Coy, 258 Mich App 1, 12; 669 NW2d 831 (2003).
Appellate relief on the basis of an error in the admission or exclusion of evidence at trial is not warranted "unless refusal to take this action appears . . . inconsistent with substantial justice," MCR 2.613(A), or the error affects "a substantial right of the party," MRE 103(a). Craig v Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004); Miller v Hensley, 244 Mich App 528, 531; 624 NW2d 582 (2001). In short, an evidentiary error will not warrant relief unless, in light of all the evidence admitted at trial, the challenged evidence affected the outcome of the trial. Shaw v Ecorse, 283 Mich App 1, 27-28; 770 NW2d 31 (2009); Lewis v LeGrow, 258 Mich App 175, 202, 208; 670 NW2d 675 (2003).
II. ANALYSIS
We must affirm the trial court because, with respect to his preserved arguments, plaintiff has not shown that the evidence was inadmissible. And, with respect to plaintiff's unpreserved arguments, he has not shown that an error occurred, much less one that was clear or plain. So plaintiff has not established that the trial court abused its discretion by permitting Officer Howe to testify. Moreover, even if parts of Howe's testimony were inadmissible, plaintiff has not established that any error affected the outcome of the trial in light of the properly admitted evidence. Craig, 471 Mich at 76; Shaw, 283 Mich App at 27-28; MCR 2.613(A).
Plaintiff's first argument, that the trial court abused its discretion permitting Officer Howe to give an opinion regarding fault, fails. Officer Howe did not offer an opinion on fault for the accident. Rather, he testified that the physical evidence he found at the accident scene did not support plaintiff's version of how the accident occurred. Only when plaintiff's counsel cross-examined Officer Howe did he essentially concede that the diagram he drew, Exhibit B, was based on his opinion of what he saw and heard, including his observation at the scene, the damage to the vehicles, and what the parties told him. Exhibit B depicted the collision as occurring while defendant was driving through the intersection with the right of way and plaintiff on a bicycle was entering the intersection from Cherry Street.
Although Exhibit B was consistent with defendant's version of how the accident happened and inconsistent with plaintiff's version, it was offered and admitted through defendant's testimony and not as Officer Howe's opinion. Further, to the extent it was opinion, Officer Howe's testimony was rationally based on his perceptions and was helpful to the determination of a fact in issue; the testimony was therefore admissible as lay opinion under MRE 701. In particular, Howe formed his "opinion" on the basis of his personal observations at the scene of the accident, with particular emphasis on the damage to the vehicles and the intersection's traffic controls. Officer Howe's "opinion was rationally based on his perception of the evidence that he found at the scene of the accident." Chastain v General Motors Corp Corp (On Remand), 254 Mich App 576, 589; 657 NW2d 804 (2002). Further, Officer Howe's conclusions were not only rationally based on his perceptions, they were also based on facts that ordinary people could understand. Mitchell v Stewart Oldford & Sons, Inc, 163 Mich App 622, 629-630; 415 NW2d 224 (1987). Howe's "testimony was not overly dependent on scientific, technical or other specialized knowledge[,]" and as such, he did not need to be qualified as an expert under MRE 702. Id. We conclude that the trial court did not abuse its discretion by permitting Officer Howe to testify.
Plaintiff also argues that the trial court abused its discretion by admitting Exhibit B. Whether evidence has been sufficiently authenticated to be admitted into evidence is determined by MRE 901. People v Berkey, 437 Mich 40, 50; 467 NW2d 6 (1991). A litigant sufficiently authenticates evidence as a condition precedent to its admission when testimony by a witness with knowledge is sufficient to support a finding that the matter in question is what its proponent claims. MRE 901(a)(1); Haberkorn v Chrysler Corp, 210 Mich App 354, 366; 533 NW2d 373 (1995). Whether an item of evidence has been properly authenticated is a matter within the trial court's discretion. Id. In this case, defendant testified that Exhibit B accurately depicted the scene of the accident. Plaintiff admitted that Exhibit B accurately depicted the intersection but disputed that that collision occurred where indicated on the diagram. The trial court did not abuse its discretion by admitting the exhibit as demonstrative evidence because it was relevant to the material facts of where and how the accident occurred.
Demonstrative evidence may be admitted where it aids the trier of fact in reaching a conclusion on an issue that is material to the case. Lopez v General Motors Corp, 224 Mich App 618, 627-629, n 16; 569 NW2d 861 (1997). Because the diagram that defendant offered, Exhibit B, was admitted as demonstrative evidence, it depended for its probative value on defendant's credibility. See People v Unger, 278 Mich App 210, 247; 749 NW2d 272 (2008) (demonstrative evidence is used as an aid to illustrate the witness's testimony). Demonstrative evidence is only a nonverbal way of expressing a witness' testimony. Finch v WR Roach Co, 295 Mich 589, 595; 295 NW 324 (1940). Consequently, the weight to be assigned the evidence was properly left to the jury to determine based on its assessment of the credibility of the witnesses and other properly admitted evidence. See Mitchell v Kalamazoo Anesthesiology, PC, ___ Mich App ___; ___ NW2d ___ (2017), slip op at 5-6. The trial court did not abuse its discretion. Edry, 486 Mich at 639; Haberkorn, 210 Mich App at 366-367.
Additionally, plaintiff's unpreserved arguments do not establish plain error. Contrary to plaintiff's argument, Officer Howe did not improperly offer an opinion regarding plaintiff's credibility. See People v Buckey, 424 Mich 1, 17; 378 NW2d 432 (1985) (holding it improper for one witness to comment on or offer an opinion on the credibility of another witness). Although Officer Howe's testimony called into question plaintiff's testimony, it did not do so on the basis of a personal opinion suggesting that plaintiff was not telling the truth. Rather, as noted, Officer Howe testified that the physical evidence, in particular, the damage to the accident vehicles, did not support plaintiff's version of events. A party may always present evidence to contradict the testimony of a witness provided it is on a point that is relevant and material to the case. See People v Vasher, 449 Mich 494, 504; 537 NW2d 168 (1995). In this case, how the accident happened was extremely relevant. Plaintiff has not established plain error on the basis of his argument that Howe improperly commented on his credibility.
Plaintiff also presents the unpreserved argument that his case was unfairly prejudiced by Officer Howe's testimony because police officers have an " 'aura of special reliability and trustworthiness.' " People v Murray, 234 Mich App 46; 593 NW2d 690 (1999), quoting People v Hubbard, 209 Mich App 234, 241, 530 NW2d 130 (1995). This appears to be an argument based on MRE 403, which permits the trial court to exclude otherwise admissible evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Id. " 'Evidence is unfairly prejudicial when there exists a danger that marginally probative evidence will be given undue or preemptive weight by the jury.' " Shaw, 283 Mich App at 26, quoting Waknin, 467 Mich at 334 n 3. In this case, the evidence was not marginally probative and did not focus the jury's attention on deciding the case on an improper basis. The evidence did not present the danger of unfair prejudice or threaten the "fundamental goals of MRE 403: accuracy and fairness." Waknin, 467 Mich at 334 n 3. Plain error did not occur, MRE 103(d); Wolford, 279 Mich App at 637, and the trial court did not abuse its discretion by permitting Howe to testify, Edry, 486 Mich at 639.
In sum, to the extent Officer Howe's testimony was in the form of an opinion, it was properly admitted as lay opinion testimony under MRE 701 because Howe's conclusions were rationally based on his perceptions and material to the case. Chastain, 254 Mich App at 589; Mitchell, 163 Mich App at 629-630. Similarly, defendant's Exhibit B was properly authenticated as what it purported to be. MRE 901(a)(1); Haberkorn, 210 Mich App at 366. The trial court did not abuse its discretion by admitting Exhibit B as demonstrative evidence because it was relevant to the material facts of where and how the accident occurred. Lopez, 224 Mich App at 627-629, n 16; Haberkorn, 210 Mich App at 366. It was for the jury to determine the credibility of all witnesses and the weight to assign to all the evidence. See Mitchell, ___ Mich App at ___, slip op at 5-6. Plaintiff has failed to establish that an error occurred, or if an error occurred, that it affected the outcome of the case in light of all the properly admitted evidence. Craig, 471 Mich at 76; Shaw, 283 Mich App at 27-28; MCR 2.613(A); MRE 103(a), (d).
We affirm. As the prevailing party, defendant may tax his cost pursuant to MCR 2.719.
/s/ Christopher M. Murray
/s/ David H. Sawyer
/s/ Jane E. Markey