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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED May 26, 2016

v No. 326216 Wayne Circuit Court JAMES PATRICK AUVIL, LC No. 14-008690-FH Defendant-Appellant.

Before: O WENS , P.J., and B ORRELLO and S TEPHENS , JJ.

P ER C URIAM

. Following a jury trial, defendant was convicted of one count o f malicious destruction of property between $1,000 and $20,000, MCL 750.377a(1)(b)(1). He was sentenced to three years’ probation. Defendant now appeals as of right. For the reasons set forth in this opinion, we affirm defendant’s convi ctions and sentence.

I. BACKGROUND This appeal arises from an inci dent which occurred between two neighbors, defendant and Ryan McLeod in Redford Township on December 5, 2013. On th at evening the two neighbors had been drinking and n ear midnight, the two were arg uing over a negative remark about a girlfriend and cigarettes when they began to fight. Al though the alleged victim’s testimony was seemingly in a state of flux as to the particular s as to what was said, or if defendant had a gun, or how the fight actually began, the alleg ed victim was consistent in stating that the fight culminated in def endant striking McLeod’s vehicl e with a wrench and kicking out the taillight. According to McL eod, the total damage to the ve hicle was approximately $4,200. After the first day of trial, Juror 11 disclosed that he reali zed throughout the first day of trial that he may have been involved in a heated incident with defendant in 2006, during which defendant deliberately ran him off the road and the police were called. Juror 11 was not certain that defendant was the person i nvolved in the incident, but agr eed that the situation was in the back of his mind and might affect his decision-making. When as ked whether he spoke to any other jurors about his possible c onfrontation with defendant, J uror 11 admitted that he told Juror 12 that defendant might be an individual he had a confrontation with in the past. The court excused Juror 11 from the jury.-2- The court then questioned Juror 12. Juror 12 stated that Juro r 11 told him that he might have recognized defendant from a prior incident during which de fendant ran him off the road. Juror 12 stated that, given the information he received from Ju ror 11, he “[a]bsolutely” could be fair and impartial and could decide the case based only on the evidence presented in court. Both the prosecutor and defense counsel agreed that trial should not continue with only 11 jurors, however, defense counsel moved fo r a mistrial, noting that, in this case where defendant was alleged to have damaged a car af ter losing his temper, Juror 12 had been exposed to information that defendant may have been involved in a road rage incident i n the past. The court denied defense counsel’s motion for a mistrial on the basis of Juror 1 2’s “affirmative statement that he can base this case only upon the evidence.” The court then que stioned each juror with respect to whether he or she overheard anyt hing regarding one of the juror s knowing defendant. A few jurors indicated that they had heard that one of the jurors mig ht have known defendant, but indicated that they did not know any details regarding how the juror knew defendant. Defendant was subsequently convicted and s entenced as indicated above.

II. JUROR BIAS On appeal, defendant first argues that his due process rights w ere violated because the trial court failed to excuse a juror after the juror was expose d to extrinsic facts that were likely to prejudice the juror against defe ndant. This Court reviews de n ovo a claim of an extraneous influence on the jury. See People v Budzyn , 456 Mich 77, 88-100; 566 NW2d 229 (1997); People v Fletcher , 260 Mich App 531, 540-541; 679 NW2d 127 (2004). During deliberations, jurors may only consider evidence presen ted to them in open court. Budzyn , 456 Mich at 88. To establish that an extrinsic influence on a juror requires reversal, a defendant must show (1) that a juror was exposed to an extraneo us influence, and (2) that there was a real and substantial possibi lity that the extraneous infl uence could have affected the jury’s verdict. Id. at 89. To demonstrate such a “ real and substantial possibility ,” the defendant should demonstrate that the extraneous influence is substantially rela ted to a material aspect of the case and that there is a direct conn ection between the extrinsic mat erial and the adverse verdict. Id. If the defendant establishes this initial burden, the burden then shifts to the prosecutor to show that the error was harmless beyond a reasonable doubt by showing tha t either the extraneous influence was duplicative of evidence produced at trial or the evidence of guilt was overwhelming. Id. at 89-90.
Review of the record leads us to conclude that Juror 12 was ex posed to an extraneous influence when another juror told him that defendant might have run him off the road in the past. Because the offense for which defendant was being tried and the extraneous information both related to defendant acting viol ently after becoming angry, the re appears to be a real and substantial possibility that the extraneous information could h ave affected the verdict. Budzyn , 456 Mich at 89. The trial court erred in not making such a fin ding. However, such a finding does not end our inquiry of the issue. Next, we must determine whether the evidence against defendant was overwhelming. We therefore turn to the record to determine whether the evidence of defendant’s guilt was overwhelming such that it rendered the trial court’s error harmless beyond a reasonable doubt. Budzyn , 456 Mich at 89-90.-3- The record reveals that Ryan M cLeod presented clear testimony t hat, during an argument, defendant damaged the windshield and roof of McLeod’s car with wrenches and kicked out the taillight. While McLeod was the only eyewitness to the inciden t, there was evidence that Officer Ditzhazy observed wrenches in the driveway and damage to the ve hicle when he arrived on the scene, that defendant returned home after the incident “yelling and screaming,” and that defendant bought a new taillight for the car and offered to pay for the damages after the incident. Given this overwhelming evidence as to whether defendant violat ed MCL 750.377a(1)(b)(1), we conclude that any error caused by Juror 12’s exposure to an ext raneous influence was harmless beyond a reasonable doubt.

III. ADJOURNMENT Defendant next argues that the trial court erred in denying hi s motion to adjourn trial because Officer Daniel Bailey, the officer in charge of the cas e, was unavailable due to emergency surgery. This Court re views a trial court’s decision to grant or deny an adjournment for an abuse of discretion. People v Snider , 239 Mich App 393, 421; 608 NW2d 502 (2000). MCR 2.503(C)(2) provides that “[a]n adjournment may be granted on the ground of unavailability of a witness or e vidence only if the court finds that the evidence is material and that diligent efforts have been made to produce the witness or evidence.” Similarly, this Court has stated that an adjournment will be granted on the ground of unavailability of a witness only for good cause shown and if diligent efforts have been made to produce the witness. People v Coy , 258 Mich App 1, 18-19; 669 NW2d 831 (2003); MCL 768.2. To de termine whether a defendant had good cause for an adjournment, a court should con sider whether defendant (1) asserted a constitutional right, (2) had a legitimate reason fo r asserting the right, (3) had been negligent, and (4) had requested previous adjournments. Coy , 258 Mich App at 18. “Even with good cause and due diligence, the trial court’s denial of a req uest for an adjournment or continuance is not grounds for r eversal unless the defendant de monstrates prejudice as a result of the abuse of discretion.” Id. at 18-19.
We conclude that defendant is not entitled to reversal on the basis of the trial court’s denial of an adjournment due to Officer Bailey’s unavailability where, even assuming the trial court erred in denying the adjournment, 1 defendant has not shown prejudice from the denial.

1 To the extent the trial court ruled that Bailey’s testimony wa s impeachment for a collateral matter, the trial court appears to have erred. A fact is not c ollateral if it “consists of any part of the witness’s account of the back ground and circumstances of a material transaction which as a matter of human experience he wo uld not have been mistaken abou t if his story were true.” People v Guy , 121 Mich App 592, 604; 329 NW2d 435 (1982). Even though defe ndant was not charged with felonious assault, testimony regarding whether def endant hit McLeod with a wrench during the incident pro vides “the background and circums tances” of the damage to the car, which “as a matter of human experience he would not have b een mistaken about if his story were true.” Id. Therefore, whether defendant hit McLeod with a wrench during th e incident-4- Before defendant requested the adjournment, defense counsel tho roughly cross-examined McLeod with respect to whether defendant hit him with a wrench. Further testimony regarding that issue would have been merel y cumulative. Furthermore, giv en defense counsel’s impeachment of McLeod on other issues, defendant was not prejud iced by his inability to further impeach McLeod’s credibility with respect to whether he spoke t o Officer Bailey about the amount of damage to the car. Because defendant has not shown p rejudice from the denial of the adjournment, we conclude that he is not entitled to reversal on the basis of this issue. Id.

IV. JUDICIAL BIAS Defendant next argues that he is entitled to a new trial becau se the trial court pierced the veil of judicial impartiality by making a negative comment abou t the defense in front of the jury. The question whether judicial misconduct denied a defendant a f air trial is a question of constitutional law that this Court reviews de novo. People v Stevens , 498 Mich 162, 168; 869 NW2d 233 (2015). Because defense counsel did not object to the trial court’s comment, however, this issue was not preserved for review. Therefore, t he issue is reviewed for plain error that affected defendant ’s substantial rights. People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). During defense counsel’s cross-examination of McLeod regarding whether defendant hit him with a wrench during the incid ent, the following exchange o ccurred:

WITNESS : I don’t remember him touching m e with the wrench, that is co rrect.

DEFENSE COUNSEL : But now you’re saying that he may have touched you in the arm with the wrench?

WITNESS : I didn’t say that, sir. I s aid he had a wrench in his hand.

DEFENSE COUNSEL : Okay. So your testimony today is he never touched you with a wrench in any way?

WITNESS : No.

DEFENSE COUNSEL : That’s not your testimony?

WITNESS : Can you repeat the question, sir.

PROSECUTOR : Objection. Argumentative. He said—

COURT : Well, I think he’s confusing the jury.

DEFENSE COUNSEL : I’m trying to clarify, your Honor. If I could clarify.

does not appear to be a collateral matter. Hence, for purposes of this appeal we presume error and still find that defendant is not entitled to relief as he c annot show prejudice.-5- COURT : I think your question asks for a negative response. I didn’ t understand the answer.

DEFENSE COUNSEL : Okay.

In Stevens , 498 Mich 162, our Supreme Court clarified the standard for eval uating whether a trial court’s conduct before a jury deprives a defend ant of a fair and impartial trial. A trial judge’s conduct deprives a party of a fair trial if a tri al judge’s conduct pierces the veil of judicial impartiality. Id. at 170. “A judge’s conduct pierces this veil and violates the constitutional guarantee of a fa ir trial when, considering the totality of the circumstances, it is reasonably likely that the judge ’s conduct improperly influence d the jury by creating the appearance of advocacy or partiality against a party.” Id. at 171. When evaluating the totality of the circumstances, a court should consider (1) the nature of th e trial judge’s conduct, (2) the tone and demeanor of the judge, (3) the scope of the judicial conduc t in the context of the length and complexity of the trial and issues therein, (4) the extent to w hich the judge’s conduct was directed at one side more than the other, and (5) the presence of any curative instructions. Id. at 172-178. Having reviewed these factors, we are not persuaded that the t rial court’s comment denied defendant a fair and impa rtial trial. The comment was b rief and isolated and did not appear to belittle defense counsel or unfairly influence the ju ry. The trial court did not state that defense counsel was deliberately confusing the jury, but merely indicated that defense counsel’s questioning was confusing to the jury. Furthermore, the record did not reveal a pattern of negativity against the defense. U nder these circumstances, def endant has not shown plain error that affected his substantial rights. Carines , 460 Mich at 763.

V. PROSECUTORIAL ERROR Defendant next argues that he was denied a fair trial because t he prosecutor belittled defense counsel by stating in front of the jury that defense co unsel’s questioning was “disrespectful.” Because defendant failed to object to the pro secutor’s comment, this issue is reviewed for plain error that aff ected defendant’s substantial rights. Carines , 460 Mich at 763. The prosecutor’s comment occurr ed during the following cross-e xamination of McLeod by defense counsel with respect to whether defendant had any re ason for damaging McLeod’s
car:
DEFENSE COUNSEL : Isn’t it true that there really was no reason for my client to do this?

PROSECUTOR : Objection. How can he ask that. And motive is not even—the People don’t have to prove motive, so how is that relevant? An d how is this witness supposed to get i n the mind of his client?

COURT : Sustained.

DEFENSE COUNSEL : Well, could I ask him if t here was no objective reason?-6- COURT : No.

DEFENSE COUNSEL : I’m not asking to get in my client’s mind.

COURT : This is argument. You can’t ask that question, it’s not rel evant. It’s speculative, and you can’t get in t he mind of th e defendant.

DEFENSE COUNSEL : Okay.

DEFENSE COUNSEL : So you have no idea why my c lient did this to you?

PROSECUTOR : Is that not the same question.

COURT : It is the same question.

PROSECUTOR : It’s disrespectful.

DEFENSE COUNSEL : Your Honor, it’s not disrespectful. This is a court of law, I’m trying to argue legally.

COURT : Okay, I’m going to have you approach. The prosecutor’s comment that defense counsel’s question was “ disrespectful” does not appear to have denied defendant a fair trial. The comment was brief and isolated. Furthermore, the jury heard defense counsel’s response that his question was not disrespectful, and that he was merely attempting to “argue legally.” Defendant has not shown plain error that affected his substantial rights. Carines , 460 Mich at 763.
Affirmed.

/s/ Donald S. Owens /s/ Stephen L. Borrello /s/ Cynthia Diane Stephens