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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

April 21, 2015 

v No. 319725 

Wayne Circuit Court 

JOSE ALFREDO CORTES-AZCATL, LC No. 13-004761-FH 

 Defendant-Appellant. 

Before: HOEKSTRA, P.J., and MARKEY and DONOFRIO, JJ. 

PER CURIAM. 

 Defendant appeals by right his jury trial conviction of operating a motor vehicle while 

intoxicated causing death, MCL 257.625(4). Defendant was sentenced to 5 to 15 years’ 

imprisonment for his conviction. We affirm the conviction but remand for resentencing. 

I. FACTS 

 This case is the result of a deadly automobile accident that occurred in Woodhaven 

around 11:00 p.m. on May 14, 2013. A Ford Focus, travelling between 47 to 53 miles per hour, 

driven by Logan Harbeck, hit a Saturn van, travelling between 15 and 22 miles per hour, driven 

by defendant. Defendant was travelling west on Van Horn Road and turning left into 

Woodhaven Place Mobile Home Park; Harbeck was travelling east on Van Horn Road. 

Harbeck’s vehicle “t-boned” defendant’s vehicle on the passenger side, where defendant’s 

fiancée, Laura Erwin, sat. Harbeck and his passenger, Jordan Taylor, were injured in the crash. 

Defendant sustained a head injury, and Erwin died in the accident. 

 Taylor testified that the Saturn did not signal at all before turning into the mobile home 

park. Taylor and Harbeck both testified that the Ford Focus’ headlights were on. Defendant 

maintained that he could not see the Ford Focus or any other vehicle travelling east on Van Horn 

Road before he turned, indicating that the Ford Focus did not have its headlights on. 

 Although the headlights were destroyed in the accident, Kevin Lucidi, traffic crash 

reconstructionist for the Michigan State Police, testified that, in his expert opinion, the Ford 

Focus’s headlights were on at the time of impact. Lucidi examined the one light that was not 

destroyed, the front left marker lamp, and it showed evidence of “hot shock.” He explained hot 

shock as what happens when “the Tungsten that . . . produces the light . . . stretches [at impact] 

because the filament is hot.” The filament is hot when it’s illuminated, which makes it pliable. 
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Therefore, evidence of hot shock suggests that the lights were on at the time of impact. The front 

left marker lamp functions “at least as a parking lamp. Which means it would be illuminated in 

the parking position or the headlight position.” Lucidi explained that, in his experience, it was 

not unusual to find evidence of hot shock in vehicles where the headlight switch was turned to 

off. He testified that there are various reasons that this might occur, including that the driver of 

the vehicle, the emergency personnel, or the wrecker driver could have turned the lights off 

before the vehicle was towed. 

 At the crash site, defendant told Sergeant Dennis DeWeese that he had drunk beer. 

DeWeese smelled intoxicants on defendant’s breath. Due to defendant’s head injury, DeWeese 

declined to request that defendant perform field sobriety tests but blood analysis later revealed 

that defendant had a blood alcohol level of .15 grams of alcohol per 100 milliliters of blood. 

II. SUFFICIENCY OF THE EVIDENCE 

 Defendant argues that there was insufficient evidence for the jury to find that he 

proximately caused Erwin’s death because the evidence does not support beyond a reasonable 

doubt that his intoxication was the cause of the accident. Although defendant admits that he was 

intoxicated at the time of the accident, he argues that there was insufficient evidence for a jury to 

find that the Ford Focus’s headlights were on at the time of the accident. Defendant argues that 

the lack of headlights was the cause of the accident and that the prosecution failed to prove, 

beyond a reasonable doubt, that the headlights were on at the time of the accident. While the 

prosecution’s expert, Lucidi, opined that the Ford Focus’s headlights were on at the time of the 

accident, the basis of the opinion that one intact light extracted from one of the headlights 

exhibited “hot shock” is unreliable. 

 This Court reviews the record de novo when addressing a claim of insufficient evidence. 

People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). The Court construes the 

evidence in the light most favorable to the prosecutor in determining if a rational trier of fact 

could find that the essential elements of the crime were proven beyond a reasonable doubt. Id. at 

196; People v Nowack, 462 Mich 392, 399; 614 NW2d 78 (2000). 

 To convict a defendant of operating while intoxicated causing death, the prosecution 

must prove beyond a reasonable doubt that the defendant (1) operated a motor vehicle (2) on a 

highway or other place open to the public (3) while intoxicated; (4) the defendant voluntarily 

made the decision to drive knowing that he had consumed alcohol and might be intoxicated, and 

(5) defendant’s operation of the motor vehicle caused the death. MCL 257.625; People v Feezel, 

486 Mich 184, 193; 783 NW2d 67 (2010). To prove that the defendant’s operation of the motor 

vehicle caused the death, the prosecution must establish that the defendant’s conduct was a 

proximate cause of the accident or victim’s death. Id. at 195. “If the finder of fact determines 

that an intervening cause supersedes a defendant’s conduct such that the causal link between the 

defendant’s conduct and the victim’s injury was broken, proximate cause is lacking and criminal 

liability cannot be imposed.” Id. (quotations omitted). 

 Defendant’s argument fails for two reasons. First, Lucidi’s testimony was just one part of 

the evidence that supported the prosecution’s theory that the Ford Focus’s headlights were on. 

Taylor and Harbeck, the passenger and the driver in the Ford Focus, testified that the headlights 
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were on. Defendant testified that he could not see the Ford Focus approaching. The jury plainly 

determined that Taylor and Harbeck were credible, and defendant was not. This Court must 

view all evidence in a light most favorable to the prosecution, drawing “all reasonable inferences 

and [making] credibility choices in support of the jury verdict.” Nowack, 462 Mich at 400. 

 Second, defendant asks this Court to rely on information that was not before the jury in 

order to find that there was insufficient evidence to convict him. Defendant did not crossexamine Lucidi regarding the phenomenon of false positive results during hot shock tests. 

Therefore, defendant’s theory that Lucidi’s test results were unreliable was not presented to the 

jury. Lucidi did, however, testify to other inconsistencies that might suggest to the jury that the 

headlights were off. For example, Lucidi testified that he observed the headlight switch in the 

off position at the towing station after the accident. He also testified that there were various 

reasons that this might occur, including that the driver of the vehicle, the emergency personnel, 

or the wrecker driver could have turned the lights off before the vehicle was towed. Nonetheless, 

Lucidi indicated that he had 18 years of experience reconstructing crash scenes, and from this 

experience, he believed that at the time of impact, the left lower fender light of the Ford Focus 

was on, functioning as either a parking lamp or in headlight position. The jury verdict supports 

that it accepted his testimony as credible, which this Court will not disturb. 

III. GREAT WEIGHT OF THE EVIDENCE 

 Defendant argues that the evidence does not support that his intoxicated operation of his 

vehicle was a proximate cause of the accident. Instead, defendant argues, the evidence supports 

that the Ford Focus did not have its headlights on, so defendant was unable to see it, which 

caused the accident. We disagree. 

 This Court reviews “a denial of a motion for a new trial based on a great weight of the 

evidence argument under an abuse of discretion standard.” People v DeLisle, 202 Mich App 

658, 661; 509 NW2d 885 (1993). But defendant failed to preserve the issue by moving for a new 

trial in the trial court, and our review is limited to plain error affecting defendant’s substantial 

rights. People v Musser, 259 Mich App 215, 218; 673 NW2d 800 (2003). Defendant must 

establish that 1) an error occurred; 2) the error was plain, clear or obvious, and 3) the plain error 

affected the out of the proceedings. People v Carines, 460 Mich 750, 763; 597 NW2d 130 

(1999). Even so, reversal will be warranted only when the plain error resulted in the conviction 

of an actually innocent defendant or when the error seriously affected the fairness, integrity or 

public reputation of judicial proceedings regardless of the defendant’s innocence. Id. 

 A jury verdict will be vacated only when the evidence does not reasonably support it, and 

the verdict more likely resulted from extraneous causes such as passion, prejudice, or sympathy. 

DeLisle, 202 Mich App at 661. The test is “whether the verdict was manifestly against the clear 

weight of the evidence.” Id. The trial court may not set aside a jury verdict on the basis that the 

court disbelieves the testimony of certain witnesses. People v Lemmon, 456 Mich 625, 636; 576 

NW2d 129 (1998). 

 As discussed already, the jury’s verdict was supported by the evidence, including that 

defendant proximately caused the accident. Both Harbeck and Taylor testified that the 

headlights of the Ford Focus were on. The only evidence that directly refutes this is defendant’s 
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testimony that he did not see any other vehicles on the road when he made the turn that caused 

the accident. Notably, defendant did not directly testify that the Ford Focus’s headlights were 

off. Although Lucidi testified that he observed the headlight switch in the off position at the 

towing station after the accident, he also testified that it is “not uncommon to find physical 

evidence suggestive of light usage with the headlight switch in the actual off position” and 

provided various explanations as to how this could occur. Lucidi also testified that in his expert 

opinion, based on 18 years of experience, at the least, the left front lower fender light of the Ford 

Focus was on at the time of impact. Conflicting testimony on its own is insufficient grounds for 

a finding of a jury verdict against the great weight of the evidence. Lemmon, 456 Mich at 647; 

Musser, 259 Mich App at 219. Therefore, there is no plain error. 

IV. INSTRUCTIONAL ERROR 

 Defendant argues that the jury should not have been instructed on flight because the 

evidence does not support that he fled. We disagree. 

 This Court reviews de novo a claim of instructional error. People v Kowalski, 489 Mich 

488, 501; 803 NW2d 200 (2011). In reviewing such a claim of error, the instructions are read as 

a whole, rather than piecemeal. Id. An instructional error will warrant reversal only when it 

undermines the reliability of the verdict, i.e., when the error is outcome determinative. People v 

Mitchell, 301 Mich App 282, 288-289; 835 NW2d 615 (2013). 

 “It is well established in Michigan law that evidence of flight is admissible.” People v 

Coleman, 210 Mich App 1, 4; 532 NW2d 885 (1995). Furthermore, a trial court may instruct a 

jury that flight may be evidence of consciousness of guilt so long as it also instructs the jury that 

evidence of flight does not prove guilt because a defendant may flee for other reasons. People v 

Taylor, 195 Mich App 57, 63-64; 489 NW2d 99 (1992). 

 Defendant attempts to rely on case law regarding the admissibility of evidence of flight, 

not whether the jury instruction should be given, to support his argument. We note that 

defendant did not object to evidence of his attempts to flee during questioning.1

 The relevant 

issue is not whether evidence of defendant’s attempts to leave the crash site should have been 

admissible, but whether the evidence that was admitted supported the flight instruction. 

 The evidence supported the instruction. Several witnesses testified that defendant 

attempted to leave the crash site. Harbeck testified that defendant “tried to get out of his car and 

leave. And the officer was telling him not to go anywhere. And bystanders were kinda trying’ 

[sic] to keep him there.” Although Harbeck also testified that defendant was not running, he also 

reiterated that “[p]eople stopped [defendant] from gettin’ away.” Mark Irvin, a witness at the 

crash site, testified that defendant kept distancing himself from the accident and was talking on 

his cell phone. Irvin explained that defendant attempted to leave on three occasions, and on the 

third occasion, a police officer went over to defendant and instructed him to sit down and not 

 

1

 Defendant did object to some hearsay statements but not to the testimony regarding defendant’s 

attempts to flee. 
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leave the area. Irvin explained that defendant was walking towards a “tree line” where, on the 

other side, a person that Irvin thought was defendant’s son had pulled up in a car. DeWeese 

testified that defendant “kept trying to walk, like toward the street . . . into the trailer park.” 

Even defendant testified that he could not remember if he attempted to leave the crash site, but 

that he “vaguely” remembered a police officer telling him to stay still. 

 Moreover, even if the evidence did not support a finding that defendant attempted to flee 

the accident and the jury received the instruction in error, this error was not outcome 

determinative. The trial court instructed the jury, “[t]here has [sic] some evidence that the 

defendant tried to run away at the alleged crimes. This evidence does not prove guilt. A person 

m[a]y run for innocent reasons, such as panic, mistake or fear. However, a person may also run 

because of a consciousness of guilt.” The trial court’s instruction was not prejudicial to 

defendant because it presented both the possibility of innocence and guilt. See Taylor, 195 Mich 

App at 63-64. Even if the evidence did not actually support finding that defendant attempted to 

flee, the jury was properly instructed that the evidence of flight could support either defendant or 

the prosecution’s theory of the case. Therefore, the instruction does not undermine the reliability 

of the jury’s verdict. In fact, if the trial court had not instructed on flight at all, the jury may have 

simply considered this evidence as consciousness of guilt, without being reminded that the 

evidence could also be consistent with innocence. 

V. PRIOR RECORD VARIABLE (PRV) 5 SCORE 

 Defendant argues that defendant’s Wisconsin misdemeanor charge the prosecution relied 

on was not a criminal case in Wisconsin at the time of its disposition; therefore, it does not 

qualify as a prior misdemeanor conviction. We agree. 

 The trial court’s factual determinations when determining the applicable sentencing 

guidelines “are reviewed for clear error and must be supported by a preponderance of the 

evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). Additionally, 

“[w]hether the facts . . . are adequate to satisfy the scoring conditions prescribed by statute . . . is 

a question of statutory interpretation, which an appellate court reviews de novo.” Id. 

 PRV 5 addresses prior misdemeanor convictions and prior misdemeanor juvenile 

adjudications. MCL 777.55(1); People v Gibbs, 299 Mich App 473, 485; 830 NW2d 821 (2013). 

A “prior misdemeanor conviction” is “a conviction for a misdemeanor under a law of this state, a 

political subdivision of this state, another state, a political subdivision of another state, or of the 

United States if the conviction was entered before the sentencing offense was committed.” MCL 

777.55(3)(a). For the purpose of PRV 5, a prior misdemeanor conviction or prior misdemeanor 

juvenile adjudication may be considered only if it is an offense against a person or property, a 

controlled substance offense, a weapon offense, or an operating or attempting to operate a 

vehicle while under the influence offense. MCL 777.55(2)(a) and (b); People v Crews, 299 Mich 

App 381, 397; 829 NW2d 898 (2013). Under PRV 5, if the defendant has one prior 

misdemeanor conviction or prior misdemeanor juvenile adjudication, then the defendant is 

assessed two points. MCL 777.55(1)(e). Defendant was assessed two points under PRV 5. 

 When this Court reviews sentencing decisions, it looks to the evidence of record at the 

time of sentencing. Hardy, 494 Mich at 444-447. Defendant claims that his conviction in
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Wisconsin was not for a misdemeanor, but instead, for a civil infraction. In support of his 

argument, defendant submits printouts from the Wisconsin Circuit Court Access website, which 

states “DISORDERLY CONDUCT. This is not a criminal offense and results only in a money 

penalty . . . .” But the trial court was not provided with this evidence when it made its sentencing 

decision. The documents the prosecution provided to the trial court before sentencing indicate 

that defendant pleaded no contest to the Wisconsin charge, which was predicated on a domestic 

violence incident. The documents also indicate that if defendant successfully completed a 

domestic violence counseling program that the charge would be amended to a county ordinance 

disorderly conduct violation. The charge was, in fact, amended on May 26, 2009 as defendant’s 

documentation verifies. So, while defendant was originally charged with a Wisconsin 

misdemeanor of disorderly conduct, Wis Stat Ann § 947.01, he ultimately was convicted of the 

local version of that offense, Waukesha County Ordinances, ch 13, art II, § 13-102(c)(8), the 

penalty for which is limited to a monetary “forfeiture”—i.e., a civil infraction “offense” under 

Wisconsin law. 

 In a similar circumstance, this Court ruled that a trial court abused its discretion where it 

scored PRV 5 at two points for a misdemeanor conviction that was later dismissed and the 

defendant discharged upon fulfillment of the terms and conditions of probation. People v James, 

267 Mich App 675, 678-679; 705 NW2d 724 (2005). In James, the misdemeanor charge was 

deferred under MCL 333.7411(1), which specifically provides that “[d]ischarge and dismissal 

under this section shall be without adjudication of guilt and, except as otherwise provided by 

law, is not a conviction for purposes of this section or for purposes of disqualifications or 

disabilities imposed by law upon conviction of a crime . . . .” See James, 267 Mich App at 679. 

The situation at hand appears analogous: Essentially, defendant’s no contest plea to the 

Wisconsin misdemeanor charge was dismissed and replaced with the civil infraction of 

disorderly conduct under a county ordinance because defendant fulfilled the terms and conditions 

required of him by the Wisconsin court. Hence, he did not have a prior misdemeanor conviction 

as required for scoring points under PRV 5. Under these facts, we conclude that defendant 

should not be scored two points for PRV 5 for a misdemeanor conviction which was later 

amended to a county ordinance violation that is only a civil infraction. 

 Defendant also argues that disorderly conduct is not the type of misdemeanor that 

qualifies for scoring under PRV 5 because it does fit any of the types of crimes under MCL 

777.55(2)(a) and (b). In view of our discussion above, we need not further address this issue. 

 Because scoring PRV 5 at zero points results in a lower guidelines recommended 

sentence range, defendant is entitled to resentencing. People v Francisco, 474 Mich 82, 89-90; 

711 NW2d 44 (2006). 

VI. INEFFECTIVE ASSISTANCE OF COUNSEL 

 Defendant asserts that his trial counsel’s performance fell below an objective standard of 

reasonableness because trial counsel failed to cross-examine the prosecution’s expert on the 

possibility of false positive results in examining the Ford Focus for hot shock and the effect of 

turning the light on and off after the accident, but before the investigation, and failed to argue the 

issue of proximate cause to the jury in her closing argument. We disagree. 
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 To preserve the issue of ineffective assistance of counsel, a defendant must file a timely 

motion in the trial court for a new trial raising the issue. People v Wilson, 242 Mich App 350, 

352; 619 NW2d 413 (2000). A defendant may also seek an evidentiary hearing when he wishes 

to support a claim that is not supported by the record. People v Ginther, 390 Mich 436, 443-444; 

212 NW2d 922 (1973). Because this Court denied defendant’s motion to remand for an 

evidentiary hearing,2 our review is limited in its review of the issue to mistakes apparent on the 

record. Wilson, 242 Mich App at 352. 

 When presented an issue of whether a defendant received the effective assistance of 

counsel, we review any of the trial court’s factual findings for clear error and the constitutional 

question de novo. People v Douglas, 496 Mich 557, 566; 852 NW2d 587 (2014). 

 Both the United States and Michigan Constitutions grant criminal defendants the right to 

the effective assistance of counsel at trial. US Const, Am VI; Const 1963, art 1, § 20. A 

defendant claiming ineffective assistance of counsel must establish (1) that “counsel’s 

performance fell below an objective standard of reasonableness, and (2) but for counsel’s 

deficient performance, there is a reasonable probability that the outcome would have been 

different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). “A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.” Strickland v 

Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). This Court does not 

apply the benefit of hindsight when determining whether trial counsel performed competently. 

People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). 

 “In examining whether defense counsel’s performance fell below an objective standard of 

reasonableness, a defendant must overcome the strong presumption that counsel’s performance 

was born from a sound trial strategy.” Trakhtenberg, 493 Mich at 52. Still, this Court must 

determine if trial counsel’s strategic choices were made on the basis of incomplete investigation. 

Id. Defense counsel “always retains the duty to make reasonable investigations or to make a 

reasonable decision that makes particular investigations unnecessary.” Id. (quotations omitted). 

 Defendant’s claim that his trial counsel’s failure to “stress the proximate cause argument 

in closing argument” amounted to ineffective assistance of counsel is without merit. Defendant’s 

trial counsel argued the issue of proximate cause to the jury at length in closing argument. 

Defendant’s trial counsel did not use the words “proximate cause” to argue defendant’s theory 

that the Ford Focus was being driven in the dark without headlights, and that that driver’s action 

was the proximate cause of the accident, not defendant’s intoxicated operation of a motor 

vehicle. Instead, trial counsel stated, “[i]n regards to the cause of the accident” and then 

continued to argue that there was evidence to support that Harbeck was the proximate cause of 

the accident, perhaps either for the speed he travelled or for failing to turn on the headlights of 

the Ford Focus. 

 

2 People v Cortes-Azcatl, unpublished order of the Court of Appeals, entered July 22, 2014 

(Docket No. 319725). 
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 The content of closing argument is trial strategy, which this Court will not second guess. 

Horn, 279 Mich App at 39. Furthermore, this Court will only find that trial counsel was 

ineffective on the basis of strategy if the strategy employed was unreasonable or unsound. 

People v Cline, 276 Mich App 634, 637; 741 NW2d 563 (2007). Here, trial counsel presented 

not one, but two possible theories to support that defendant’s driving while intoxicated was not a 

proximate cause of Erwin’s death. Her strategy was not unreasonable. Although his trial 

counsel may not have argued the issue to his standards, defendant fails to overcome the strong 

presumption that his trial counsel’s closing arguments were sound trial strategy. Horn, 279 Mich 

App at 39. 

 Defendant claims that trial counsel was ineffective for failing to completely investigate 

the phenomenon of “hot shock” which would have resulted in her conducting a stronger crossexamination of Lucidi on specific issues and potentially discrediting his testimony. Defendant’s 

claim fails. Defendant relies wholly on extra-record evidence in the form of articles from the 

internet to support his claims that trial counsel was ineffective. We cannot address this issue, 

however, because a party may not expand the record on appeal. People v Gingrich, 307 Mich 

App 656, 659 n 1; ___ NW2d ___ (2014). And, we will not employ hindsight to assess 

counsel’s competence regarding matters of trial strategy. Horn, 279 Mich App at 39. 

 On the basis of the record as it stands, trial counsel’s cross-examination of Lucidi was not 

unreasonable. Trial counsel asked several questions of Lucidi regarding the position of the 

headlight switch, apparently attempting to point out that the headlight switch on the Saturn 

remained in the on position even two days after the accident, while the Ford Focus’s headlight 

switch was off, to indicate that no one had tampered with the switches. 

 In any event, even if defendant could establish that trial counsel’s performance was 

deficient for failing to question Lucidi on the phenomenon of false positives and the effect of 

turning the headlights on and off after an accident, defendant cannot establish that “but for 

counsel’s deficient performance, there is a reasonable probability that the outcome would have 

been different.” Trakhtenberg, 493 Mich at 51. Lucidi’s expert testimony was not the sole 

evidence that the Ford Focus’s headlights were on at the time of the accident. Taylor and 

Harbeck, the passenger and the driver in the Ford Focus, testified that the headlights were on. 

Although expert testimony supported the prosecution’s theory of proximate cause, the expert 

testimony was not integral for the jury’s finding defendant guilty. Even if trial counsel had 

expertly cross-examined Lucidi on hot shock, there was sufficient evidence in the record upon 

which the jury could reasonably rely to determine that defendant’s intoxicated operation of his 

vehicle was a proximate cause of the accident. 

 We affirm defendant’s conviction but remand for resentencing. We do not retain 

jurisdiction. 

/s/ Joel P. Hoekstra 

/s/ Jane E. Markey 

/s/ Pat M. Donofrio