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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 20, 2017

v No. 330752 Oakland Circuit Court AKASH L. SHAH, LC No. 2015-254680-FH

Defendant-Appellant.

Before: S AWYER , P.J., and S AAD and R IORDAN , JJ.

P ER C URIAM

. Defendant appeals as of right his conviction for operating whi le visibly impaired (OWVI), MCL 257.625(3). We affirm defendant’s conviction, but we remand for the administrative correction of t he judgment of sentence.

On July 5, 2013, defendant worked at his job from 9 a.m. to 6 p.m., then went home and entertained out-of-state family members until he went to bed ar ound midnight. Defendant woke up at 5 a.m. the next day and worked from 7 a.m. to 4 p.m. Tha t evening, after defendant got home from work, he hosted a dinner for his out-of-state family. Around 8 p.m., while cleaning up from dinner, defendant’s friend invited him to a bar to play darts. Defendant met his friend at around 9 p.m. Between 9 p.m. and 11 p.m., defendant consumed t hree to four 16-ounce light beers. Around 11 p.m., defendant switched to drinking water. Defendant eventually left the bar around 1 a.m. On his way home, defendant remembered that his w ife had mentioned that she was still hungry because she was not able to eat much at dinner . Defendant pulled over and texted his wife to see if she was still hungry. While waiting for his wife to respond, defendant fell asleep.

Officer Robert Manar, a police o fficer for the city of Novi, s potted defendant’ s vehicle on the side of the road, angled so that its front end was towards the middle of the road. The vehicle’s lights were on and its engine was running. Officer M anar approached the vehicle and saw that the driver’s side window was open. In the vehicle, Of ficer Manar saw that defendant was asleep in the driver’s seat and the vehicle was in park. O fficer Manar first attempted to wake defendant by speaking to him. When that did not work, Off icer Manar reached in and shook defendant awake. Officer Man ar asked defendant to step o ut of the vehicle and give the officer his identification. When defendant got out of the vehi cle, Officer Manar smelled the odor of intoxicants on defendant’s bre ath. Defendant seemed confuse d about where his wallet was,-2- and Officer Manar told him that it was on his person. Defendan t then took his wallet out and began fumbling with his identif ication until Officer Manar told defendant that his ID was showing. When Officer Manar asked defendant if he had been dri nking, defendant responded by saying that “he had too much of everything.”

Officer Manar then administered a field sobriety test. Office r Manar could not remember whether defendant passed his Ho rizontal Gaze Nystagmus (HGN) te st. After the HGN, Officer Manar had defendant perform a walk and turn. When defendant be gan the walk and turn, he stumbled to the point that the officer believed that defendant was going to fall over. Officer Manar also noticed that defendant was constantly stepping off t he line and that he appeared unable to keep a straight line. The officer also had defendantperform a one-leg stand. Defendant failed to perform the test and explained to the offic er that he did not have the balance for it. Officer Manar next asked defendant to recite the ABC’s , starting with the letter “C” and ending at “L.” Defendant was una ble to finish on his first att empt but completed the sequence on his second attempt. Officer Manar next asked defendant to coun t backwards starting at 78 and ending at 67. Defendant continued counting past 67, and the of ficer eventually stopped defendant when he reached 62. At trial, defendant explained th at he was tired when the officer roused him from his sleep, that he had bad balance due to an in jury on his foot, and that he was confused regarding the officer’s instructions for the ABCs and counting tests.

Based on defendant’s admission that he was drinking, the posit ion of his car, his performance on the field sobriety tests, and his general confus ion, Officer Manar believed that defendant was likely intoxicate d. Officer Manar placed defenda nt under arrest and took him back to the police station. Once there, Officer Manar procured a warrant for defendant’s blood. The results of defendant’s blood samples revealed a blood alcoh ol level of 0.23 grams per 100 milliliters of blood. An expert testified on behalf of defenda nt that the amount of alcohol defendant consumed that night could not have resulted in this h igh of an alcohol content. The expert explained that the sampl e was likely tainted by bacteria and then fermented, causing the level to appear higher than defendant’s actual level at the tim e the blood was drawn. The prosecution’s expert disagreed with this suggestion.

Before trial, defendant was cha rged with operating while intox icated (OWI), MCL 257.625(1). The prosecution did not submit jury instructions b efore trial, and the defense counsel only submitted instructions for OWI. At trial, after b oth parties presented proofs but before closing arguments, defense counsel objected to the prose cution’s proposal to include the elements of OWVI. The trial c ourt overruled defendant’s object ions and gave instructions for both OWI and OWVI. The jury found defendant guilty of only OWV I. Defendant then filed a motion for a directed verdict o f acquittal after jury trial, ju dgment notwithstandi ng the verdict, or new trial, which the trial court denied.

On appeal, defendant argues th at the trial court erred by inst ructing the jurors regarding OWVI because it is not a necessarily included lesser offense of OWI. This Court “review[s] de novo a trial court’s ruling on a necessarily included lesser of fense instruction.” People v Walls

, 265 Mich App 642, 644; 697 NW2d 535 (2005).-3- Defendant was charged with OWI under MCL 257.625(1). 1 MCL 257.625(3), the OWVI statute, states in pertinent part, “If a person is charged with violating subsection (1), a finding of guilty under this subsection may be rendered.” Generally, MCL 768.32(1) 2 controls the determination of whether a particular crime is a necessarily in cluded lesser offense. People v Cornell , 466 Mich 335, 353-354; 646 NW2d 127 (2002) (stating that “MCL 768.32 only allows a jury to consider necessarily i ncluded lesser offenses”). How ever, in People v Martin , 271 Mich App 280, 294-295; 721 NW2d 815 (2 006), this Court stated t hat “where the statutory language of a particular offense indicates a contrary intent, t hat specific intent will control over the general rule stated under MCL 768.32(1).” Thus, as the tex t of MCL 257.625(3) makes clear, the Legislature intende d for OWVI to be a necessarily in cluded lesser offense of OWI.

Moreover, our Courts have recognized that OWVI meets the test for a necessarily included lesser offense. In People v Lambert , 395 Mich 296, 305; 235 NW2d 338 (1975), our Supreme Court stated, “The distinction between [MCL 257.625(1)] and the lesser included offense of [MCL 257.625(3)] is the degree of intoxication which the people must prove.” More recently, in Oxendine v Secretary of State , 237 Mich App 346, 354-355; 602 NW2d 847 (1999), this Court reiterated that “[OWVI] and the ‘under the influence ’ version of [OWI] are in a hierarchical relationship, because any person who drives while so affected by consumption of alcohol or a controlled substance as to be substantially and ma terially affected and thus commit [OWI] would plainly always also be so affected that the person’ s driving ability would be

1 MCL 257.625(1) states as follows:

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 sta te if the person is operating while intoxicated. As used in this section, “operating while i ntoxicated” means any of the following:

(a) The person is under the influence of alcoholic liquor, a c ontrolled substance, or other intoxicating substance or a combination of alcoholic l iquor, a controlled substance, or other in toxicating substance.

(b) The person has an alcohol content of 0.08 grams or more pe r 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or, b eginning October 1, 2018, the person has an alcohol content of 0.10 grams or more per 100 milliliter s of blood, per 210 liters of breath, or per 67 milliliters of urine

2 MCL 768.32(1) states as follows: Except as provided in subsection (2), upon an indictment for a n offense, consisting of different degrees, as prescribed in this chapter, the jury, or the judge in a trial without a jury, may find the accused not guilty of the offense in the degree charge d in the indictment and may find the accused person guilty of a degree of that offense inferior to that charged in the indictment, or of an attempt to commit that offense.-4- ‘visibly impaired’ and thus cons titute [OWVI].” Accordingly, t he trial court did not err by holding that OWVI was a necessaril y included lesser offense of OWI.

Defendant also argues that the trial court erred by instructin g the jury regarding OWVI because he was not given notice of the charge. This claim lack s merit. “[A] defendant is on notice when charged that he or she may be found guilty of a nec essarily included lesser offense of the offense charged.” Martin , 271 Mich App at 288. “Hence, it is not error to instruct the jury on such necessarily incl uded lesser offenses.” Id . “In general, the duty of the trial court to instruct with regard to lesser included offenses is determined by the evidence.” People v Torres

, 222 Mich App 411, 416; 564 NW2d 149 (1997). “When an offense i s necessarily included, the evidence will always support the lesser offense if it supports the greater.” Id . Thus, if evidence supports instruction for the grea ter offense, the trial court m ust instruct the jury on a necessarily lesser included offense at t he request of either party. Id

. Here, as previously discussed, OWVI is a necessarily included lesser offense of OWI. See Lambert , 395 Mich at 305; see also Oxendine , 237 Mich App 354-355. Defendant does not contest that the instructions for OWI were proper. See Torres , 222 Mich App at 416. Thus, because the prosecution requested the instruction for OWVI, the trial court did not err by giving the instruction. See Martin , 271 Mich App at 288.

Defendant also argues that there was insufficient evidence to support his conviction for OWVI. “Challenges to the sufficiency of the evidence are revie wed de novo.” People v Cline

, 276 Mich App 634, 642; 741 NW2d 563 (2007). “To determine whet her the prosecutor has presented sufficient evidence to sustain a conviction, we revie w the evidence in the light most favorable to the prosecutor and determine whether a rational tr ier of fact could fi nd the defendant guilty beyond a reasonable doubt.” People v Smith-Anthony , 494 Mich 669, 676; 837 NW2d 415 (2013) (citation and quotation marks omitted).

This “review is deferential: a reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict.” People v Gonzalez , 468 Mich 636, 640-641; 664 NW2d 159 (2003) (citation and quotation marks omitted). “It is for the trier of fact, not the appellate court, to determine what infer ences may be fairly drawn from the evidence and to determine the we ight to be accorded those infer ences.” People v Hardiman , 466 Mich 417, 428; 646 NW2d 158 (2002). “The scope of review is th e same whether the evidence is direct or circumstantial. Circumstantial evidence and reaso nable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime.” People v Nowack , 462 Mich 392, 400; 614 NW2d 78 (2000) (citation and quotation marks omitted). “Even in a case relying on circumstantial evidence, the prosecution need not ne gate every reasonable theory consistent with the defendant’s innocence, but need merely intr oduce evidence sufficient to convince a reasonable jury in the face of whatever contradictor y evidence the defendant may provide.” Hardiman , 466 Mich at 423-424 (citation and quotation marks omitted).

To convict a defendant of OWVI, the prosecution must prove tha t, “due to the consumption of alcoholic liquor . . . or other intoxicating sub stance, the person’s ability to operate the vehicle is visibly impaired.” MCL 257.625(3). In other words, the prosecution must prove that, due to intoxication, the defendant “drove with less ability than would an ordinary, careful and prudent driver.” Lambert , 395 Mich at 305.-5- Here, Officer Manar found defenda nt’s vehicle par ked on the si de of the road, the car was running, and defendant was asleep. Although, as defendant corr ectly points out, no one saw defendant drive his car, this is not a requirement under MCL 25 7.625(3). MCL 257.625(3) only requires that “the person’s abili ty to operate the vehicle is v isibly impaired,” not that a person witness defendant’s ability be visibly impaired. See People v Stephen , 262 Mich App 213, 219; 685 NW2d 309 (2004) (holding that an officer does not need to a ctually witness a person driving a vehicle to arrest the person for OWI). Officer Manar testifi ed that he believed that defendant was intoxicated based on defenda nt’s performance on his field s obriety tests, and defendant testified that he drove. Moreove r, defendant’s blood tested po sitive for the presence of alcohol. See People v Miller , 357 Mich 400, 407; 98 NW2d 524 (1959) (blood alcohol concentr ation “is properly admissible as bearing upon the issue of intoxication”) . Based on this circumstantial evidence, the jury could have concluded that defendant operated his vehicle with less ability than an ordinary careful driver. Nowack , 462 Mich at 400.

Further, defendant testified that he drank three or four beers at a bar before driving. Based on this evidence, if the jury concluded that defendant’s ability to drive was weakened, evidence supported the fact that this weakened ability was due to defendant’s consumption of alcohol. Although defendant present ed evidence at trial that h is ability was impaired due to sleepiness rather than alcohol, “the prosecution need not negat e every reasonable theory consistent with the defendant’s innocence.” Hardiman , 466 Mich at 423-424 (citation and quotation marks omitted). A jury is “free to believe or disbel ieve, in whole or in part, any of the evidence presented,” People v Perry , 460 Mich 55, 63; 594 NW2d 477 (1999), and in a light most favorable to the prosecution, the jury could have reasonab ly inferred that defendant was operating his vehicle in a manne r less than that of an “ordinar y, careful and prudent driver,” Lambert , 395 Mich at 305.

For the foregoing reasons, there were no errors in the three i ssues defendant has raised on appeal. Therefore, the trial court did not abuse its discretio n by refusing to grant defendant’s motion for a new trial. People v Miller , 482 Mich 540, 544; 759 NW2d 850 (2008).

In reviewing the record to analyze the issues raised on appeal , we came across an error in defendant’s judgment of sentence that, while not meriting subst antive relief, nevertheless requires us to remand this case to the trial court to correct t he administrative error. Specifically, defendant’s judgment of sentence reflects a conviction under MC L 257.625(6)(d), which is not the relevant section for OWVI. Accordingly, we remand this cas e to the trial court for the administrative task of correcting defendant’s judgment of sente nce. See People v Herndon , 246 Mich App 371, 392-393; 633 NW2d 376 (2001).

Remanded for the task of correcting the error in the judgment of sentence. Otherwise, affirmed. We do not retain jurisdiction.

/s/ David H. Sawyer /s/ Henry William Saad /s/ Michael J. Riordan