Circuit Court LC No. 16-010157-FH
Before: Meter, P.J., and Gadola and Tukel, JJ.
appeals as of right his conviction by a jury of committing a
motor-vehicle moving violation and thereby causing a serious
impairment of a body function, MCL 257.601d(2). The trial
court sentenced him to 18 months' probation. We reverse
defendant's conviction and remand for a new trial.
was driving on Center Avenue in Hampton Township on June 15,
2015, approaching Scheurman Road, when he struck James
Stivenson with his vehicle. Stivenson broke his legs in eight
places, suffered a head injury, and now has difficulty
walking. A police officer testified that immediately after
the accident, defendant seemed "sleepy, drowsy, [or]
slow." The officer testified that defendant did not know
what he had hit and "thought somebody had thrown a bag
of garbage at him." Defendant stated at trial that he
had taken a pill to help him "relax" and that it
was a "sleeping aid" but "not a sleeping
pill." It also is not disputed that defendant had
consumed some beer prior to driving that night. However,
Stivenson was dressed in dark clothing, and witnesses stated
that Stivenson tried to rush across the street in front of
defendant's car. Stivenson also had a 0.19 blood-alcohol
analysis of the crash-data-retrieval system from
defendant's car revealed that defendant had been
traveling at a speed of 41 miles per hour, without hitting
the brakes, before the crash. The speed limit before the
intersection was 35 miles per hour. In addition, Center
Avenue had a blinking yellow light at the time of the crash.
A police officer explained that when a driver is faced with a
flashing yellow light, he or she is "supposed to proceed
with caution . . . and continue through if it's . . .
charges were submitted to the jury: "operating a motor
vehicle while visibly impaired causing serious impairment of
a body function to another person" (Count I) and
"committing a moving violation causing serious
impairment of a body function" (Count II). The jury
acquitted defendant on Count I but convicted him on Count II,
and this appeal followed.
PROPRIETY OF MICHIGAN CRIMINAL JURY INSTRUCTION 15.19
argues that M Crim JI 15.19, defining "moving violation
causing serious impairment of a body function" was
erroneous. Defendant also argues that the trial court
compounded the error in M Crim JI 15.19 in answer to a jury
question during deliberations, when it again emphasized the
erroneous portion of the instruction. We agree.
review the proper interpretation of a statute de novo.
People v Barrera, 278 Mich.App. 730, 735; 752 N.W.2d
485 (2008). "[J]ury instructions that involve questions
of law are also reviewed de novo." People v
Gilis, 474 Mich. 105, 113; 712 N.W.2d 419 (2006)
(quotation marks and citation omitted). When interpreting a
statute, it is the court's duty to give effect to the
intent of the Legislature as expressed in the actual language
used in the statute. People v Calloway, 500 Mich.
180, 184; 895 N.W.2d 165 (2017). "It is the role of the
judiciary to interpret, not write, the law." People
v Schaefer, 473 Mich. 418, 430; 703 N.W.2d 774 (2005).
If the statutory language is clear and unambiguous, the
statute is to be enforced as written. People v
Laney, 470 Mich. 267, 271; 680 N.W.2d 888 (2004). In
those circumstances, judicial construction is neither
necessary nor permitted because it is presumed that the
Legislature intended the clear meaning it expressed.
People v Stone, 463 Mich. 558, 562; 621 N.W.2d 702
right to a trial by a jury is one of the lodestar concepts of
Anglo-American jurisprudence and has historical roots that
grow as deep as the Magna Carta of 1215." People v
Antkoviak, 242 Mich.App. 424, 441; 619 N.W.2d 18 (2000).
"A criminal defendant is entitled to have a properly
instructed jury consider the evidence against him."
People v Riddle, 467 Mich. 116, 124; 649 N.W.2d 30
(2002). Jury instructions must include all elements of the
charged offenses and any material issues, defenses, and
theories if there is evidence to support them. People v
Jackson (On Reconsideration), 313 Mich.App. 409, 421;
884 N.W.2d 297 (2002), citing People v Reed, 393
Mich. 342, 349-350; 224 N.W.2d 867 (1975). Absent proper
instruction, a defendant might be convicted of an
"offense" which our Legislature has not in fact
criminalized. And perhaps most importantly for this case,
"[a]n omission, or an incomplete instruction, is less
likely to be prejudicial than a misstatement of the
law." Henderson v Kibbe, 431 U.S. 145, 155; 97
S.Ct. 1730; 52 L.Ed.2d 203 (1977).
issue is whether the provided jury instruction adequately
informed the jury of what the statute requires for a
defendant to have caused the serious impairment of a body
function under MCL 257.601d(2).
statute under which defendant was convicted, MCL 257.601d(2),
A person who commits a moving violation while operating a
vehicle upon a highway or other place open to the general
public, including, but not limited to, an area designated for
the parking of motor vehicles, that causes serious impairment
of a body function to another person is guilty of a
misdemeanor punishable by imprisonment for not more than 93
days or a fine of not more than $500.00, or both.
trial court instructed the jury that to prove the charge, the
prosecution had to establish beyond a reasonable doubt the
First, that the defendant committed one or more of the
following moving violations: Failing to proceed through a
flashing yellow signal with caution or failing to observe an
authorized speed or traffic control sign, signal, or device;
second, that the defendant's operation of the vehicle
caused a serious impairment of a body function to James Scott
Stivenson. Again, to cause such injury, the defendant's
operation of a vehicle must have been a factual
cause of the injury. That is, but for the defendant's
operation of the vehicle, the injury would not have
occurred. In addition, operation of the vehicle must
have been a proximate cause of the injury, that is, the
injury must have been a direct and natural result of
operating the vehicle. [Emphasis added.]
trial court's instruction was a verbatim recitation of
the model instruction, modified to include the specific
moving violations charged in this case, as well as the name
of the accident victim. See M Crim JI 15.19.
first part of the phrase in MCL 257.601d(2) has two
predicates to the causation requirement because
"operating a vehicle" is tied to "moving
violation" through the word "while." Thus,
neither a moving violation alone, nor the operation of a
vehicle alone satisfies the statute; rather, both of those
predicates must be present in conjunction with each other-a
moving violation while operating a vehicle.
statute then has a causation requirement. The causation
requirement is potentially ambiguous. What is it that must
"cause" the injury: the conjoined "moving
violation" while "operating a vehicle," or is
merely "operating a vehicle . . . that causes serious
impairment of a body function" sufficient? This issue is
critical because M Crim JI 15.19 addresses causation as it
relates to the operation of a vehicle but does not do so as
to the moving violation.
general rule is that, based on common grammatical usage,
"a modifying clause will be construed to modify only the
last antecedent unless some language in the statute requires
a different interpretation." People v Small,
467 Mich. 259, 263; 650 N.W.2d 328 (2002). If read that way,
"causes serious impairment of a body function"
would modify only "operating a motor vehicle" and
would not modify "commits a moving violation." If
that is the correct reading, then the moving violation
requirement would not play a part in the causation analysis;
that is, the statute would not require that the moving
violation give rise to or cause the accident.
Schaefer, 473 Mich. 418, our Supreme Court
interpreted a different statute as not requiring that the
first predicate of that statute, being under the influence of
alcohol, be a cause of an accident resulting in an injury.
The statute at issue in Schaeffer, MCL 257.625,
addresses Michigan's so-called "OUIL causing death
statute," found in subsection (4). Id. at
427-428. That statute provides that "[a] person, whether
licensed or not, who operates a motor vehicle in violation of
[various subsections relating to alcohol or controlled
substances], and by the operation of that motor vehicle
causes the death of another person is guilty of a
crime." (Emphasis added.) Based on that language,
the Schaefer Court held that the statute has
"no causal link between the defendant's intoxication
and the victim's death." Id. at 431.
"Accordingly, it is the defendant's
operation of the motor vehicle that must cause the
victim's death, not the defendant's
'intoxication.'" Id. (emphasis in
operative language of the statute at issue in
Schaefer is quite different than the language of the
statute at issue here. The present statute links the moving
violation to the operation of the vehicle and thus requires
that those linked elements cause the injury; the statute at
issue in Schaefer, by contrast, unlinked a
defendant's alcohol or drug use from the operation of the
vehicle. As the Supreme Court noted in Schaefer,
"Section 625(4) plainly requires that the victim's
death be caused by the defendant's operation of
the vehicle, not the defendant's intoxicated
operation. Thus, the manner in which the defendant's
intoxication affected his or her operation of the vehicle is
unrelated to the causation element of the crime."
Id. at 433. Here, by contrast, a moving violation
"while operating" a vehicle must "cause"
the "serious impairment of a body function."
if the first requirement, the moving violation, does not play
a part in the causation analysis, then its occurrence in any
particular case could be merely coincidental to the serious
impairment of a body function, and yet a defendant would
still be guilty of the offense. In other words, it would be
the operation of the vehicle that would constitute the
critical component of causation, but a defendant nevertheless
would not be guilty of an offense unless, at a minimum, it
just so happened that he or she also committed a moving
violation. Of course, in some cases, such a moving violation
could be completely unrelated to the resulting accident and
injury. That lack of a causation requirement made sense as
part of the overall statutory scheme in Schaefer
because the Legislature sought to criminalize a status crime,
driving while intoxicated. See id. at 433 n 46.
Operating a motor vehicle, when the driver has the status of
being intoxicated, is tailored to the conduct the Legislature
wished to deter even absent a causation requirement.
however, violation of the statute is not tied to a status
offense. Rather, the statute requires that a defendant have
committed a particular predicate act, a moving violation.
Thus, on the basis of its language, the statute supports an
interpretation that the moving violation and operation of the
motor vehicle together must cause the serious bodily