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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED December 10, 2015

v No. 322939
Delta Circuit Court KYLEE LYNN INGEBRIGTSEN, LC No. 14-008925-FH

Defendant-Appellant.

Before: S AAD , P.J., and S TEPHENS and O’B RIEN , JJ.

P ER C URIAM

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Defendant appeals her convictions following a jury trial for o perating while intoxicated, third offense (OWI 3d), MCL 257.625(1)(a), (9)(c), unlawful pos session of a controlled substance (Valium or diazepam), MCL 333.7403(2)(b)( ii ), and driving while license suspended, second offense, MCL 257.904(3)(b) (DWLS). Defendant was acquit ted of unlawful use of a controlled substance (Focalin o r dexmethylphenidate), MCL 333.7 404(2)(b). Defendant was sentenced as a third-offense habitual offender, MCL 769.11, to 2 to 10 years’ imprisonment for OWI 3d and to 146 days for her possession and DWLS convictions. For the reasons provided below, we affirm.

Defendant’s charges stem from a February 25, 2014, motor vehic le accident. Defendant drove a truck off the road into a snowy ditch. Defendant conte nded that the accident was the result of a seizure, but the police officers who responded to t he scene believed that she was intoxicated. An empty Focalin capsule and an empty Suboxone pa cket were found in her vehicle, along with a used needle, a plunger for the needle, an d cotton-lined box. A Focalin pill and a baggie containing Valium were also found near where defen dant had been seated in the interview room at the police station. Defendant only had a pre scription for Suboxone. 1

On appeal, defendant contends that there was insufficient evid ence to convict her of OWI 3d. We review this claim de novo, People v Kanaan , 278 Mich App 594, 618; 751 NW2d 57 (2008), and consider “the evidence in the light most favorable to the prosecution,” People v

1 Suboxone was prescribed for defendant to treat her addiction t o pain-killer medication, stemming from an earlier motorcycle accident.-2- Fennell , 260 Mich App 261, 270; 677 NW2d 66 (2004). We look to see wh ether given the record evidence, “a rational trie r of fact could find that the essential elements of the crime were proven beyond a reasonable doubt.” Id.

Defendant was convicted of vi olating MCL 257.625(1)(a), which provides:

(1) A person, whether licensed or not, shall not operate a vehi cle upon a highway or other place open to the general public or generally accessib le to motor vehicles, including an area designated for the parking of vehicles, withi n this state if the person is operating while intoxicated. As used in this section , “operating while intoxicated” means any of the following:

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

The parties agree that the disputed element on this charge is w hether defendant was “under the influence,” where that term means that “defendant’s ability to drive was substantially and materially affected” by a controlled substance or some combinat ion of controlled substances. People v Lambert , 395 Mich 296, 305; 235 NW2d 338 (1975). The jury was instruc ted as follows: “The test is whether, because of the use or consumpti on of a controlled substance, the defendant’s mental or physical condition was significantly affe cted and the defendant was no longer able to operate a vehicle in a normal manner.” See also People v Walters , 160 Mich App 396, 402; 407 NW2d 66 2 (1987) (stating that “the inability to d rive normally is an element of the offense of OUIL”).

Defendant argues that there was no evidence presented that the specific symptoms of defendant’s alleged state of impairment are symptoms that arise as a result of consuming or abusing diazepam, Focalin, or Suboxone. Although defendant is correct that no one with expert knowledge of the substances testif ied regarding the effects of those drugs, and no documents listing side effects were entered into evidence, defendant is m istaken about the absence of any evidence as to the drugs’ effect s. Contrary to defendant’s arg ument, direct evidence is not required. “Circumstantial evidence and reasonable inferences d rawn from it may be sufficient to
establish the elements of a crime.” Fennell , 260 Mich App at 270.

At least five active or retired police officers testified that defendant displayed signs consistent with being intoxicate d. Defendant herself testified that she recalled th ere being a label on the Suboxone containers when she first began taking it that advised users to “use caution when you first start taking this medication when operating a mo tor vehicle.” In addition, the prosecution presented evidence that it was possible for defenda nt to have concentrated and injected the Suboxone. Moreover, defendant admitted that she l ikes the way Valium makes her feel, and that she told a friend that she would never lose 24 V alium; she would instead consume them and be “out” for days. The jurors could reasonably infer from this evidence that plaintiff ingested one or more controlled substances and experienced effe cts that manifested as intoxication, which resulted in d efendant “no longer [being] ab le to operate a vehicle in a normal
manner.”-3- Defendant also argues that she was denied a fair trial because of the admission of evidence suggesting she was an intravenous (IV) drug user. Def endant never objected to the admission of the evidence, so this evidentiary issue is not pre served, People v Knox , 469 Mich 502, 508; 674 NW2d 366 (2004), and our review is for plain erro r affecting defendant’s substantial rights, People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).

Defendant claims that the evide nce of her prior IV drug usage was inadmissible under MRE 404(b). MRE 404(b) prohibits u sing evidence of past, speci fic acts to prove that the person later acted in conformity with those prior acts. People v Sabin (After Remand) , 463 Mich 43, 56; 614 NW2d 888 (2000). In other words, “[w]here the only relevan ce of the proposed evidence is
to show the defendant’s charact er or the defendant’s propensity to commit crime, the evidence
must be excluded.” Knox , 469 Mich at 510. Thus, for evidence that potentially implica tes MRE 404(b) to be admissible, the evidence must be offered for a pro per purpose, id. at 509, and a proper purpose is one other tha n establishing a defendant’s cha racter to show his propensity to commit the charged offense, People v Johnigan , 265 Mich 463, 465; 696 NW2d 724 (2005).

Looking first at a proper purpose, knowledge and lack of accid ent or mistake are permissible uses of character evidence under MRE 404(b)(1). He re, a used hypodermic needle was found in the truck defendant was driving, along with Suboxo ne, a cotton lined box, and a cigarette filter. Two Delta Count y Sheriff Department officers testified about the process of liquefying drugs, filtering them, and then injecting them using such materials. The scars on defendant’s arms were indicia of previous injections that showe d she knew how to use the components found in the vehicle to inject the controlled substa nces at issue in this case. It further provided context to defe ndant’s references to “rigs” in recorded jailhouse calls and discounted her explanation, in conjunction with the evidence of a recent injection, that the
discussion with a friend that he r ability to perform an injecti on while driving was a joke.

Furthermore, the evidence related to the observations of defen dant’s scarred veins was directly relevant to the lack of blood evidence regarding what substances were in defendant’s system the day of the accident. The likely origin of the scars was relevant to explain why the blood draw was so difficult and, ultimately unsuccessful. Had the prosecution not been able to present the evidence regarding defendant’s scarred veins, the j ury would likely have been confused as to why so little blood had been drawn, or why the t esting lab indicated that there was not enough blood to test for cont rolled substances even though it had been tested for alcohol.

Additionally, as the prosecution notes, defendant’s former dru g use was already known because it was necessary to explain why defendant was prescribe d Suboxone. The prescription was relevant because defendant had gone to Marquette to get it filled and was returning from having it filled when she drove off the road. Suboxone was fou nd in the truck and was alleged to
be one of the substances defendant had taken.

Though relevant, MRE 404(b) evidence may be excluded if its pr obative value is substantially outweighed by the danger of unfair prejudice. MR E 403; Knox , 469 Mich at 509. Unfair prejudice exists where there is “a danger that marginall y probative evidence will be given undue or preemptive weight by the jury,” or “it would be inequi table to allow the proponent of
the evidence to use it.” People v Mills , 450 Mich 61, 75-76; 537 NW2d 909, mod on other grounds 450 Mich 1212 (1995) (quotat ion marks and citation omit ted). Defendant asserts that-4- “the probative value of the scars would be limited, as they are evidence of past events, rather than the present.” But the evidence of the scars was highly pr obative to demonstrate defendant’s knowledge, to explain the difficulty of the blood draw, and it also provided context to defendant’s need for the Suboxone prescription. Defendant furt her claims that the evidence was
needed to show that defendant “mu st have been acting in accorda nce with her usual behavior.” But, as already discussed, the evidence was not offered for tha t purpose. Consequently, MRE
403 would not bar the admissi on of the evidence.

Therefore, we hold that defendant has failed to show how the a dmission of the evidence
constituted plain error.

Defendant also argues that her trial counsel was ineffective b y failing to object to the admission of the IV drug usage evidence. But because admission of the evidence was proper, defense counsel was not ineffective for failing to raise a futi le objection, People v Fike , 228 Mich App 178, 182; 577 NW2d 903 (1998), or for failing “to advo cate a meritless position,” People v Snider , 239 Mich App 393, 425; 608 NW2d 502 (2000).

Defendant’s final claim on appeal is that her counsel was inef fective for failing to object to the inclusion of a juror who was the first cousin of the pro secutor’s mother-in-law, i.e., a fifthdegree relative of the prosecuto r. Because no evidentiary hear ing was held, our review is limited to errors apparent on the record. People v Jordan , 275 Mich App 659, 667; 739 NW2d 706 (2007). “To establish a claim of ineffective assistance of cou nsel, a defendant must demonstrate that counsel’s performance was deficient in that it fell below an objective standard of professional reasonableness, and that it is reasonably probable that, but for counsel’s ineffective assistance, the result of the proceeding would have been differ ent.” Id.

Defendant relies on MCR 2.511(D) w hich provides, in relevant p art, as follows:

The parties may challenge jurors for cause, and the trial court shall rule on each challenge. A juror challenged for cause may be directed t o answer questions pertinent to the inquiry. It is grounds for a challenge for ca use that the person:

(1) is not qualif ied to be a juror;

(2) is biased for or aga inst a party or attorney;

* * *

(8) is related within the ninth degree (civil law) of consangu inity or affinity to one of the pa rties or attorneys.

Defendant is correct that MCR 2.511(D) permits an attorney to challenge a juror for cause if the juror is related to any of the parties within the ninth degree. Although trial courts
have no discretion whether to str ike for cause if a party shows that a juror falls within one of the subsections of MCR 2.511(D), People v Walker , 162 Mich App 60, 64; 412 NW2d 244 (1987), the rule does not require counsel to make such a challenge. MC R 2.511(D) is a permissive rule, not a mandatory one, providing that “the parties may challenge jurors for cause.” (Emphasis-5- added.) See In re Bail Bond Forfeiture , 496 Mich 320, 328; 852 NW2d 747 (2014) (stating that “may” is a permissive term, not a mandatory one).

Here, there is no question that counsel recognized his ability to exercise juror challenges and, in fact, utilized them where he was concerned about possib le bias based on a relationship with the prosecutor. One potenti al juror stated that she knew the prosecutor’s brother, having graduated with him. The potenti al juror stated that she could set that aside and decide the case based solely on the facts and evidence, but defense counsel non etheless used a peremptory challenge to excuse her. And when another potential juror stat ed that she could be fair and impartial despite knowing the pr osecutor both personally and pr ofessionally, defense counsel again used a peremptory cha llenge to excuse her.

Accordingly, because the relationship between the prosecutor a nd the juror in issue was fully disclosed, it is reasonable to conclude that defense coun sel would have excused the juror
were he concerned about the re lationship. In fact, upon furthe r questioning by defense counsel, the juror stated that he had never met the prosecutor and would have no problem voting not guilty if he thought the evidence was insufficient. With these facts, we cannot conclude that defense counsel’s failure to challenge the juror was objectivel y unreasonable, especially in light of the remoteness of the juror’s relationship to the prosecutor and the juror’s assurance of being impartial. See People v Miller , 482 Mich 540, 561; 759 NW2d 850 (2008) (rejecting view that a new trial is always required whe never a juror would have been e xcusable for cause and, instead, stating that “the proper inquiry is whether the defendant was d enied his right to an impartial jury”).

Affirmed.

/s/ Henry William Saad /s/ Cynthia Diane Stephens
/s/ Colleen A. O’Brien