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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 23, 2017

v No. 329960 Kent Circuit Court RICHARD MICHAEL KESSLER, LC No. 15-002957-FH

Defendant-Appellant.

Before: B ORRELLO , P.J., and M ARKEY and M. J. K ELLY , JJ.

P ER C URIAM

. Defendant appeals by right his conviction of operating a vehic le while intoxicated, MCL 257.625(1). Defendant was sente nced to 4 to 20 years’ imprison ment. We affirm.

This case arises out of a traffic stop that occurred in northe rn Kent County. First, defendant argues that the prosecution presented insufficient ev idence at trial to support his operating a vehicle while intoxi cated conviction. Specifically , defendant asserts that there was not sufficient evidence to est ablish that he w as intoxicated. We disagree.

When reviewing a sufficiency of the evidence claim, this Court reviews the evidence de

novo. People v Lane , 308 Mich App 38, 57; 862 NW2d 446 (2014). This Court reviews “the evidence in a light most favorable to the prosecution to determ ine whether a rational trier of fact could find that the prosecution ha d proved the crime’s elements beyond a reasonable doubt.” Id

. Operating a vehicle while intoxicated “is a hybrid version of two offenses: MCL 257.625(1)(a) prohibits operating a motor vehicle under the inf luence of intoxicating liquor (OUIL) and MCL 257.625(1)(b) prohi bits operating with an unlawf ul bodily alcohol content (UBAL).” People v Hyde , 285 Mich App 428, 447-448; 775 NW2d 833 (2009). Thus, pursua nt to MCL 257.625(1), the elements of operating a vehicle while in toxicated are:

(1) the defendant operated a motor vehicle (2) on a highway or other place open to the general public or generally accessible to motor vehicles (3) while under the influence of liquor or a controlled substance, or a combination of the two, or with a blood alcohol content of 0.08 gr ams or more per 100 millilite rs of blood. [ Id . at 448.]-2- “[T]he third element is disjuncti ve; that is, it can be satisfi ed in either of the two ways.” Id

. First, there was sufficient evidence presented at trial to sup port a conviction under the theory that defendant operated a vehicle while under the influe nce of alcohol. At trial, the police officer testified that he could smell intoxicants on defendant’ s breath and that defendant had bloodshot, glassy eyes. In addition, defendant admitted to dri nking three or four 12-ounce mixed drinks made with rum. The police officer also testified regard ing defendant’s performance on the sobriety tests. For instance, he testified that defendant’ s eyes were jerky or jumpy during the nystagmus tests and that defenda nt could not complete the one-l eg stand test. Finally, the jury was able to view the patrol car dash cam video and observe defe ndant’s performance on the sobriety tests. From this evide nce, the jury could reasonably conclude that defendant was operating a vehicle while under the influence of alcohol. See id . at 449 (concluding that the police officer’s observations, th e defendant’s own admissions, the defendant’s “slurred speech and failure of two sobriety tests, and the physical beer bottle evidence” supported a conviction of operating a vehicle while under the influence of liquor). Thus , the evidence, viewed in a light most favorable to the prosecuti on, supported a reasonable jury’ s finding that defendant operated a vehicle while under the influence of alcohol. Id .; Lane , 308 Mich App at 57.

In addition, there was sufficient evidence presented at trial to support a conviction under the theory that defendant operated a vehicle with a blood alcoh ol content of 0.08 or more. At trial, the prosecution admitted the toxicology laboratory repor t into evidence, which showed that defendant’s blood alcohol content was 0.109 after his arrest. From this evidence, the jury could have reasonably concluded that defendant operated a vehicle wit h a blood alcohol content of 0.08 or more. Therefore, the evidence, viewed in a light most favorable to the prosecution, would support a reasonable jury’ s finding that defendant operat ed a vehicle with a blood alcohol content of 0.08 or more. Id

. Next, defendant argues that the trial court’s instruction to t he jury that they could find defendant guilty if some jurors believed defendant was operatin g the vehicle under the influence of alcohol and other jurors believed defendant was operating th e vehicle with a blood alcohol content of 0.08 or more was improper. We disagree.

In criminal cases, a jury verdi ct must be unanimous, and a jury must be instructed on that requirement. Const 1963, art 1, § 14; People v Cooks , 446 Mich 503, 510-511; 521 NW2d 275 (1994). Generally, this duty is fulfilled though a general ins truction on unanimity, even when different acts might support a conviction. Id . at 512-513, 530. It is not required that the jurors unanimously agree on every fact supporting a conviction. People v Gadomski, 232 Mich App 24, 31; 592 NW2d 75 (1998). “[I]t is well settled that when a statute lists alternative means of committing an offense, which means in and of themselves do not constitute separate and distinct offenses, jury unanimity is not r equired with regard to the alt ernate theories.” Id

. Defendant asserts that he was entitled to a specific unanimity instruction. But as discussed above, the third element of operating a vehicle while intoxicated “is disjunctive; that is, it can be satisfied in either of the two ways.” Hyde , 285 Mich App at 448. The third element can be satisfied by showing that defendant was either operating a vehicle under the influence of alcohol or that defendant operated a vehicle with a blood alcoh ol content of 0.08 or more. Id

. Furthermore, the Michigan Model Criminal Jury Instructions stat e that “[i]f you all agree that the-3- defendant operated a motor vehicle either with an unlawful bodi ly alcohol level or while under the influence of” alcohol “it is not necessary that you agree o n which of these violations occurred,” but “you must all agree that one of those violations did occur.” M Crim JI 15.6(f). Therefore, the trial did not err by instructing the jurors that they could find defendant guilty if some jurors believed defendant was operating the vehicle under the influence of alcohol and others believed that he was opera ting the vehicle with a blood alcohol content of 0.08 or more.

Defendant next asserts that the trial court improperly omitted paragraphs (2) and (3) from section 15.5 of the Michigan Model Criminal Jury Instructions. We disagree.

Defendant objected to the omissi on of the paragraphs at trial, so this issue is preserved for appellate review. People v Sabin (On Second Remand) , 242 Mich App 656, 657; 620 NW2d 19 (2000). Claims of instructional error are reviewed de novo. People v Kowalski , 489 Mich 488, 501; 803 NW2d 200 (2011). But the trial court’s determination t hat a jury instruction is applicable to the facts of the case is reviewed for an abuse of discretion. People v Gillis , 474 Mich 105, 113; 712 NW2d 419 (2006).

“A criminal defendant is entitled to have a properly instructe d jury consider the evidence against him.” People v Riddle , 467 Mich 116, 124; 649 NW2d 30 (2002). Jury instructions “must cover each element of each offense charged, along with al l material issues, defenses, and theories that have evidentiary support.” People v Wess , 235 Mich App 241, 243; 597 NW2d 215 (1999). However, “an instruction that is without evidentiary s upport should not be given.” Id

. “This Court reviews jury instruc tions in their entirety to dete rmine if there is error requiring reversal.” Id . Even if imperfect, an instr uction “is not grounds for settin g aside a conviction if the instruction fairly presented the issues to be tried and ade quately protected the defendant’s rights.” Kowalski , 489 Mich at 501-502. “[I]f an applicable instruction is not given, the defendant bears the burden of esta blishing that the trial court ’s failure to give the requested instruction resulted in a miscarriage of justice.” Riddle , 467 Mich a 124. A conviction will be reversed only if, “after examini ng the nature of the error in l ight of the weight and strength of the untainted evidence, it affirmatively appears that it is more pr obably than not that the error was outcome determinative.” Id . at 124-125; see also MCL 769.26.

In this case, the trial court omitted from its instructions ov er defendant’s objection:

(2) You may also consider bod ily alcohol content in reaching yo ur verdict. In that regard, [was / were] the test(s) technically accurate? Was the equipment properly assembled and maintained and in good working order when the tes t(s) [was / were] given?

(3) Were the test results reliable? Was the test given correct ly? Was the person who gave it properly trained? Did the circumstances under whic h the test was given affect the accuracy of the results? [M Crim JI 15.5.]

Here, the trial court opined that “there was no evidence from which the jury could determine the accuracy or reliab ility of the test because neith er the person who withdrew the sample or analyzed it were ava ilable to give testimony, subject to cross examination.” In addition, the trial court noted t hat notice was given at the be ginning of trial that the laboratory-4- analyst was not going to be calle d absent an objection, and def endant did not object. There is support for the trial court’s determination that there was no e vidence that supported the inclusion of paragraphs (2) and (3) because the laboratory technician did not testify. Wess , 235 Mich App at 243 (jury instructions require evidentiary support). But ev en if the trial court abused its discretion by omitting the requested instructions, defendant ca nnot demonstrate that doing so was outcome determinative. As noted, even without considering the blood test, th e evidence was sufficient for a reasonable jury to conclude that defendant was operating a vehicle while under the influence of alcohol. First, the police officer testified that he smelled alcohol on defendant’s breath, that defendant had bloodshot, glassy eyes, and that def endant performed poorly on the sobriety tests. In addition, defendant admitted to drinking mi xed drinks made with rum that evening. The jury also saw defendant’s performance on the sobr iety tests at trial. In light of all the “untainted evidence,” defe ndant cannot establish that the o utcome of his trial would have been different if the trial court had given the requested instr uctions that lacked evidentiary support. Riddle , 467 Mich a 124-125. As a result, r eversal is not required. Id

. In addition, defendant argues that the trial court failed to p roperly instruct the jury on an inference concerning defendant’s blood alcohol test. However, the trial court’s final instructions stated that the jurors “may infe r that the defendant’s bodily a lcohol content at the time of the test was the same as his bodily alcohol content at the time he opera ted the motor vehicle.” This statement directly mirrors M CL 257.625a(6)(a), which states:

The amount of alcohol or presenc e of a controlled substance or other intoxicating substance in a driver’s blood or urine or the amount of alcohol in a person’s breath at the time alleged as shown by chemical analysis of the person’s blood, urine, or breath is admissible in to evidence in any civil or cr iminal proceeding and is presumed to be the same as at the time the person operated the vehicle.

Thus, the trial court’s instructions were not improper.

Next, defendant argues that the trial court erred by not givin g him jail credit for the 168 days he was incarcerated between his arrest and his sentencing. Because defendant failed to object to the calculation of jail credit at sentencing, this is sue is unpreserved. People v Meshell
, 265 Mich App 616, 638; 696 NW2d 754 (2005). “Unpreserved sente ncing errors are reviewed for plain error.” Id . Whether a defendant is entitle d to jail credit is a questionof statutory interpretation, which is rev iewed de novo by this Court. People v Seiders , 262 Mich App 702, 705; 686 NW2d 821 (2004).

The pertinent statute provides:

Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being de nied or unable to furnish bond for the offense of which he is convicted, the tria l court in imposing sentence shall specifically grant credit against the sentence f or such time served in jail prior to sentencing. [MCL 769.11b.]-5- Our Supreme Court held that the jail credit statute does not apply to a parolee who is convicted and sentenced for a new felony that was committed whi le on parole. People v Idziak
, 484 Mich 549, 562-563; 773 NW2d 616 (2009). MCL 791.238(2) pro vides in part:

A prisoner violating the provisi ons of his or her parole and fo r whose return a warrant has been issued by the deputy director of the bureau of field services is treated as an escaped prisoner and is liable, when arrested, to serve out the unexpired portion of his or her maximum imprisonment.

Accordingly, when a parolee is a rrested, the parolee resumes se rving the unexpired portion of the parolee’s maximum imprisonment for the original offense. Idziak , 484 Mich at 566. As a result, the “parolee is not incarcerated ‘because of being denied or un able to furnish bond for the offense of which he is convicted.’ ” Id . at 566-567, quoting MCL 769.11b. “Because the parolee is required to remain in jail pending the resolution of the new criminal charge for reasons independent of his eligibility for or ability to furnish bond f or the new offense, the jail credit statute does not apply.” Idziak , 484 Mich at 567.

In this case, defendant was on parole when he committed the in stance offense. He was arrested on March 12, 2015, and remained in jail until his sent encing on September 3, 2015. Defendant seeks credit for the 168 days he was incarcerated aga inst his sentence for the instance offense. But pursuant to MCL 791.238(2), “defendant resumed se rving the remaining portion of his earlier sentence when he was arrested.” Idziak , 484 Mich at 568. He was not incarcerated “because of being denied or unable to post bond” for the instan t offense. MCL 769.11b. Consequently, defendant is notentitled to 168 days of jail cre dit.

Defendant also asserts that the trial court’s failure to credi t him for time served before his sentencing violated his rights under the due process, equal pro tection, and double jeopardy clauses; however, the Supreme Court thoroughly discussed and re jected these challenges. Idziak
, 484 Mich at 568-574. In addition, defendant argues that by den ying him jail credit, the trial court punished him for exercising his constitutional right to a jury trial. But this argument has also been rejected. See People v Priekskorn , 424 Mich 327, 341; 381 NW2d 646 (1985) (noting that the motivation for a defenda nt to plead guilty to start “t he sentencing clock running” on an offense does not alter the language of the statute and/or preve nt the statute from applying). Accordingly, the trial court wa s correct in denying defendant j ail credit for the time he was incarcerated before his senten cing in the instant case.

Defendant next argues that at trial the prosecution made state ments that were improper and denied defendant of a fair trial and his due process rights . We disagree.

Defendant’s trial counsel objec ted to the prosecutor’s stateme nt regarding the presumption that defendant’s blood alcohol content set forth th e lab report would be the same as defendant’s blood alcohol content at the time of the traffic st op; therefore, this error was preserved. People v Bennett , 290 Mich App 465, 475; 802 NW2d 627 (2010). Trial counsel, however, did not object to the sta tement that the jurors did no t have to unanimously agree on one theory to establish the elemen t of intoxication. Thus, this is sue was not preserved. Id

.-6- “A prosecutor’s clear misstatement of the law that remains unc orrected may deprive a defendant of a fair trial.” People v Grayer , 252 Mich App 349, 357; 651 NW2d 818 (2002). But the misstatement may be cured “if the jury is correctly instruc ted on the law.” Id

. The prosecutor did not misstate the law concerning defendant’s blood test results. The prosecutor stated that “Michigan law presumes that at the time that the blood was drawn, . . . [the jurors were] to presume that [the lab result] was what he was a t the time of the stop.” This statement reflects the language of MCL 257.625a(6)(a), which st ates that the “chemical analysis of [defendant’s] blood . . . is presumed to be the same as at t he time the person operated the vehicle.” Furthermore, as discussed above, the trial court pro perly instructed the jury on this presumption; therefore, no error occurred.

In addition, the prosecutor’s statement that the jurors did no t need to be unanimous in regards to what theory they found had established that defendan t was intoxicated was an accurate reflection of the law. Hyde , 285 Mich App at 448 (stating that the intoxication element “i s disjunctive; that is, it can be satisfied in either of the two ways”). Further, as discussed above, the trial court correctly instructed the jury on the elements o f operating a vehicle while intoxicated. Accordingly, no trial error occurred, and defenda nt was not denied due process or a fair trial by the complained of actions of the prosecutor.

Finally, defendant claims that he was denied effective assista nce of counsel because his trial counsel failed to object to the prosecutor’s statements a nd the trial court’s instructions discussed above. We disagree.

“Whether a person has been denied effective assistance of coun sel is a mixed question of fact and constitutional law.” People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002). The trial court’s “factual findings are reviewed for clear error, w hile its constitutional determinations are reviewed de novo.” People v Matuszak , 263 Mich App 42, 48; 687 NW 2d 342 (2004). Here, because defendant failed to move for a new trial or an evidenti ary hearing, this Court’s review of his ineffective assistance of counsel claim is limited to error s apparent on the record. Sabin ( On Second Remand) , 242 Mich App at 659.

To prevail on a claim of ineffective assistance of counsel, a defendant must establish that “(1) the performance of his counsel was below an objective stan dard of reasonableness under prevailing professional norms and(2) a reasonable probability exists that, in the absence of counsel’s unprofessional errors, the outcome of the proceedings would have been different.” Id

. “A defendant must overcome a strong presumption that the assist ance of his counsel was sound trial strategy, and he must show that, but for counsel’s error, the outcome of the trial would have been different.” Id.

First, trial counsel did object to the prosecutor’s statement that Michigan law presumes that defendant’s blood alcohol test result was the same as defe ndant’s blood alcohol content when he was operating the vehicle. In addition, trial counsel also objected to the trial court’s omission of paragraphs (2) and (3 ) from the final jury instruct ions (M Crim JI 15.5). Thus, defendant cannot establish that trial counsel fell “below an ob jective standard of reasonableness under prevailing professional norms.” Sabin (On Second Remand) , 242 Mich App at 659.-7- Second, trial counsel did not obj ect to the prosecutor’s state ment and the trial court’s instruction that jury unanimity was not required as to which th eory the jury found that the element of intoxication was me t. So, as discussed above, that instruction was accurate. Ineffective assistance of counsel cannot be based on trial coun sel’s failure to raise a meritless objection. People v Eisen , 296 Mich App 326, 329; 820 NW2d 229 (2012). Thus, defendant cannot establish that his tria l counsel was not effective. Id

.
We affirm.

/s/ Stephen L. Borrello /s/ Jane E. Markey /s/ Michael J. Kelly