Opinion
No. 349778
12-22-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ALEKSANDR ANATOULYEVICH ZAGORODNYY, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Kent Circuit Court
LC No. 18-006381-FH Before: FORT HOOD, P.J., and SAWYER and SERVITTO, JJ. PER CURIAM.
Following a jury trial, defendant was convicted of operating while under the influence of liquor (OUIL), third offense, MCL 257.625. The trial court sentenced defendant as a habitual fourth offender, MCL 769.12, to serve 46 months to 30 years in prison. Defendant appeals as of right, and we affirm.
In the early hours of June 3, 2018, a motorist was nearing his home when he had to drive around a vehicle that was obstructing his lane of travel. The motorist observed a person slumped in the driver's seat and notified the police. The police arrived to find defendant asleep in the driver's seat, and woke him. Defendant was visibly impaired and failed a field sobriety test. According to the responding officers, defendant stated that he was unsure how the vehicle had arrived at this location before stating that his daughter had been driving. After defendant was taken to jail, his blood alcohol level was determined to be .227 grams of alcohol per 100 milliliters of blood. At trial, defendant stated that he had been asleep for approximately four hours in the vehicle. Defendant claimed that he had walked to the location to secure the van after a friend, who had been loaned and was driving the van, called to tell him that it had broken down and that he was leaving it. Defendant claimed that he wanted to make sure tools in the van were secure.
On appeal, defendant argues that the evidence was insufficient to demonstrate that he was operating the vehicle, and that the trial court erred by instructing the jury that the evidence was sufficient to consider whether he was guilty of OUIL. Defendant also argues that his trial counsel provided ineffective assistance by failing to object to the trial court's comment. We disagree.
This Court reviews de novo a challenge to the sufficiency of the evidence. People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). Due process requires that evidence of every element of a crime be proved beyond a reasonable doubt in order to sustain a criminal conviction. People v Hampton, 407 Mich 354, 366; 285 NW2d 284 (1979), citing In re Winship, 397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970). To determine if the prosecutor produced evidence sufficient to support a conviction, this Court considers "the evidence in the light most favorable to the prosecutor" to ascertain " 'whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' " People v Tennyson, 487 Mich 730, 735; 790 NW2d 354 (2010), quoting People v Hardiman, 466 Mich 417, 429; 646 NW2d 158 (2002). "[A] reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict." People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). Direct and circumstantial evidence, as well as all reasonable inferences that may be drawn from the evidence, are considered to determine whether the evidence was sufficient to sustain the conviction. Hardiman, 466 Mich at 429.
MCL 257.625(1) states:
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.Defendant argues that he was not operating a motor vehicle when he was found intoxicated while sleeping in the vehicle.
In People v Wood, 450 Mich 399, 404-405; 538 NW2d 351 (1995), the Supreme Court overruled previous cases and determined that a person sleeping in a motionless car could "be held to be presently operating a vehicle while sleeping." The Court reasoned that operating a vehicle "should be defined in terms of the danger the OUIL statute seeks to prevent: the collision of a vehicle being operated by a person under the influence of an intoxicating liquor with other persons or property." Id . at 404. For the purposes of the OUIL statute, the term "operating" means:
Once a person using a motor vehicle as a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of causing a collision, such a person continues to operate it until the vehicle is returned to a position posing no such risk. [City of Plymouth v Longeway, 296 Mich App 1, 8; 818 NW2d 419 (2012), quoting Wood, 450 Mich at 404-405.]A "risk" is "the probability that some type of harm or loss will occur," and "significant" means "that the risk of occurrence is more likely than not" or "higher than remote, speculative, or merely possible." People v Burton, 252 Mich App 130, 144; 651 NW2d 143, (2002) (citations omitted).
Defendant argues that there was no evidence that he was operating the vehicle, considering that there was no testimony that he had driven the vehicle, the vehicle was found turned off and parked, and defendant was found sleeping inside. As stated above, defendant's claim was that a friend had communicated that he was abandoning the van because it had broken down while the friend was returning it to defendant, that defendant walked a half-hour to the van because he wanted to secure the tools inside, and that he then fell asleep inside the van. While, if believed, this set of facts might exonerate defendant, "the prosecution need not disprove all theories consistent with defendant's innocence; it need only introduce sufficient evidence to convince a reasonable jury of its theory of guilt despite the contradictory theory or evidence a defendant may offer." People v Solmonson, 261 Mich App 657, 662-663; 683 NW2d 761 (2004), citing Hardiman, 466 Mich at 423-424.
In this case, the prosecutor presented sufficient circumstantial evidence to support, beyond a reasonable doubt, that defendant had operated the vehicle while intoxicated and had yet to put the vehicle in a position posing no significant risk of collision. There was no dispute that defendant was intoxicated. Also, the vehicle was in a location that created a significant risk of a collision. It had come to rest in a driving lane, a hundred yards from a stop sign. The motorist who alerted the police had to drive around the vehicle because it obstructed the lane of travel. The vehicle was not running and there was evidence that only its parking lights were on. Moreover, keys were in the vehicle's ignition. This evidence demonstrated that someone had operated the vehicle.
The evidence and reasonable inferences also demonstrated beyond a reasonable doubt that defendant was the operator of the vehicle who placed it in the subject location. Most importantly, as stated, defendant was found in the driver's seat of the vehicle and his keys were in the ignition. Defendant asserted that he put a padlock key in the ignition and not the van key, which he said was hidden under the vehicle. However, the impound document for defendant's vehicle indicated that the ignition key was present in the vehicle. Because defendant admitted that he had placed a key in the ignition and the ignition key was found in the vehicle, because defendant was in the driver's seat of the vehicle, which had stopped in a roadway, and because the vehicle was .7 miles from defendant's residence, it was reasonable to infer that defendant had been driving the vehicle.
Further, although defendant testified that he had not driven the vehicle and that a friend had abandoned it, according to a responding officer, defendant reported at the time that he was unsure of how the vehicle came to be on the street before reporting that his daughter had been driving. This was inconsistent with his testimony at trial. The jury was empaneled to determine defendant's credibility, and an appellate court will not second-guess this determination. People v Dunigan, 299 Mich App 579, 582; 831 NW2d 243 (2013), citing People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992) (This Court "does not interfere" with the fact-finder's "assessment of the weight and credibility of witnesses or the evidence"). Thus, the evidence and reasonable inferences supported the jury's determination that defendant "put the vehicle in motion, or in a position posing a significant risk of causing a collision," while intoxicated.
Next, defendant argues that the trial court erred by informing the jury of its opinion of the evidence. There was no objection to the subject comment below. Unpreserved claims are reviewed for plain error affecting substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Reversal is warranted only if the plain error resulted in the conviction of an innocent defendant or if "the error seriously affected the fairness, integrity, or public reputation of judicial proceedings independent of the defendant's innocence." Id. Defendant also claims that the failure to object constituted ineffective assistance of counsel. The constitutional question of whether an attorney's ineffective assistance deprived a defendant of his Sixth Amendment, US Const, Am VI, right to counsel is reviewed de novo. People v Unger (On Remand), 278 Mich App 210, 242; 749 NW2d 272 (2008).
A defendant has a right to a neutral and detached judge and a trial court may not "pierce the veil of judicial impartiality." People v McDonald, 303 Mich App 424, 437; 844 NW2d 168 (2013), citing People v Davis, 216 Mich App 47, 50; 549 NW2d 1 (1996). The trial court "must not allow its views on disputed issues of fact to become apparent to the jury." Cole v Detroit Auto Inter-Ins Exch, 137 Mich App 603, 610; 357 NW2d 898 (1984). However, a defendant claiming judicial bias must overcome "a heavy presumption of judicial impartiality." People v Jackson, 292 Mich App 583, 598; 808 NW2d 541 (2011).
In this case, defendant argues that the trial judge errantly gave his opinion on the strength of the evidence of the OUIL charge. The trial court had granted defendant's motion for a directed verdict of acquittal on an open container charge, but denied defendant's motion as it pertained to the OUIL charge. After the jury returned, the trial court instructed the jury, stating:
Ladies and Gentlemen, I want to clarify something before we proceed any further in this matter. There was an information filed which we went over at the beginning of trial that charged the defendant, Mr. Zagorodnyy, with two counts. One is operating while intoxicated. That's Count I. The Second Count is Alcohol -- open container in a vehicle. That's Count II. The Court has found -- I have found that there's insufficient evidence of open container in a vehicle. That includes, like, having an open container of alcohol in the vehicle. I didn't feel that there was sufficient evidence to support that, so that claim is being dismissed by the Court. So, the only matter that you're going to have to consider is operating while intoxicated. That is the only count that you'll have to consider in whether [defendant] is guilty or not guilty of that count.Given the important role of the trial judge, "jurors look to the judge for guidance and instruction" and "are very prone to follow the slightest indication of bias or prejudice upon the part of the trial judge." People v Stevens, 498 Mich 162, 174; 869 NW2d 233 (2015) (quotation marks and citation omitted). The conduct of a trial judge can violate a defendant's "constitutional guarantee of a fair trial when, considering the totality of the circumstances, it is reasonably likely that the judge's conduct improperly influenced the jury by creating the appearance of advocacy or partiality against a party." Id. at 171.
In this case, the trial court did not give an opinion regarding its analysis of the evidence presented at trial as it pertained to the OUIL charge. Defendant argues that the trial court implied that it thought the evidence of OUIL was strong, because it told the jury that the evidence was insufficient to try defendant for having an open container, and defendant suggests that this gave rise to a negative inference that the opposite was true for the OUIL charge. However, the most that the jury could infer from the trial court's statement was that there was sufficient evidence for a trial on the OUIL charge. The jury was already aware that there was sufficient evidence to charge defendant with OUIL because they were informed of the two charges against defendant that they were empaneled to decide. The trial court's comments were regarding the threshold of the evidence needed for submission to the jury, rather than the strength of the evidence regarding conviction. The trial court simultaneously informed the jury that it was responsible for determining "whether [defendant] is guilty or not guilty of [OUIL]," and the court later instructed that its comments were not evidence and that the jury should disregard any opinion that the jury might believe the trial court had about the case. Jurors are presumed to follow their instructions, and instructions are presumed to cure most errors. People v Bauder, 269 Mich App 174, 195; 712 NW2d 506 (2005). Thus, defendant's claim that the trial court influenced the jury with the announcement of its ruling relative to the open intoxicants charge is without merit.
Regarding the ineffective assistance of counsel claim, defendant argues that his trial counsel should have objected to the trial court's comment. A defendant's right to counsel is guaranteed by the United States and Michigan Constitutions. US Const, Am VI; Const 1963 art 1, § 20. This "right to counsel encompasses the right to the effective assistance of counsel." People v Cline, 276 Mich App 634, 637; 741 NW2d 563 (2007) (quotation marks omitted). In order to demonstrate an ineffective assistance of counsel claim, a defendant must show (1) "that counsel's performance was deficient" and (2) "that counsel's deficient performance prejudiced the defense." People v Taylor, 275 Mich App 177, 186; 737 NW2d 790 (2007) (quotation marks and citation omitted).
The right to the effective assistance of counsel is substantive and focuses on "the actual assistance received." People v Pubrat, 451 Mich 589, 596; 548 NW2d 595 (1996). In this case, an objection would have been without merit. The trial court's comment properly informed the jury that there was insufficient evidence for them to consider the open intoxicants charge, and implied that there was sufficient evidence for them to consider whether the evidence demonstrated that defendant was guilty beyond a reasonable doubt of OUIL. "Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel." Ericksen, 288 Mich App at 201, citing People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000).
Affirmed.
/s/ Karen M. Fort Hood
/s/ David H. Sawyer
/s/ Deborah A. Servitto