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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED December 22, 2016

v No. 329383 Wayne Circuit Court KARLTON TERRY LEWIS, LC No. 15-002576-02-FH

Defendant-Appellant.

Before: J ANSEN , P.J., and C AVANAGH and B OONSTRA , JJ.

J ANSEN
, P.J. ( dissenting ).

I respectfully dissent. I conclude that Simpson’s conduct of turning directly in front of or swerving into the path of an oncoming vehicle while intoxicated constituted gross negligence and superseded defendant’s condu ct such that the causal link be tween defendant’s conduct and the victim’s death was broken. Therefore, I would reverse defe ndant’s conviction and sentence, and remand for entry of an order of conviction for operating a motor vehicle while intoxicated, MCL 257.625(1), and for resentencing.

The sole issue is whether def endant’s conduct constituted a pr oximate cause of the victim’s death. As explained in the majority opinion, proximat e cause exists when the victim’s injury is a “ ‘direct and natur al result’ ” of the defendant’s conduct. People v Schaefer , 473 Mich 418, 436; 703 NW2d 774 (2005) (citation omitted). In determini ng whether a defendant was a proximate cause of the victim’s injury, it is necessary to dete rmine whether there existed an intervening cause that superseded the defendant’s actions, brea king the causal link between the defendant’s conduct and the victim’s injury. Id . at 436-437. The test to determine whether an intervening cause superseded the defendant’s conduct is whether the intervening cause was reasonably foreseeable. Id . at 437. As the majority recognizes, ordinary negligence is reasonably foreseeable, but gross negligence on the part of a third party is not. Id . at 437-438. Our Supreme Court has defined “gross negligence” as “ ‘wantonne ss and disregard of the consequences which may ensue, and indifference to the rights of others that is equivalent to a
criminal intent.’ ” Id . at 438 (citation omitted).

In People v Feezel , 486 Mich 184, 188; 783 NW2d 67 (2010) (opinion by C AVANAGH
, J.), the defendant was convicted of operating a motor vehicle w hile intoxicated, second offense, MCL 257.625(1), among other convic tions. The defendant was dri ving in the early hours of the morning when he struck and killed a pedestrian who was walking in the middle of the road with-2- his back to oncoming traffic. Id . at 188-189. The victim was extremely intoxicated at the time
he was hit. Id . Our Supreme Court determined t hat the fact that the victim w as intoxicated at the time he was hit was relevant to the issue of proximate causatio n, specifically with regard to whether he was conducting himself in a grossly negligent manner at the time he was hit. Id . at 198-199. Our Supreme Court stated:

[w]hile intoxication may explain why a person acted in a partic ular manner, being intoxicated, by itself, is not conduct amounting to gross negli gence. In this case, however, the victim’s extreme intoxication was highly probative of the issue of gross negligence, and therefore causation, because the victim’s intoxication would have affected his ability to perc eive the risks posed by his co nduct and diminished his capacity to react to the world around him. [ Id . at 199.]

I conclude that Simpson was grossly negligent when she turned or swerved in front of an oncoming vehicle while intoxicat ed, and Simpson’s actions super seded defendant’s conduct. The majority recognizes that, for the purposes of MCL 257.625(4 ), gross negligence is presumed
when an individual “acted knowi ngly in consuming an intoxicatin g liquor or a controlled substance, and acted voluntarily in deciding to drive after suc h consumption.” People v Lardie

, 452 Mich 231, 251, 256; 551 NW2d 656 (1996), overruled in part on other grounds by Schaefer

, 473 Mich at 433. In this case, it is undisputed that Simpson w as operating her motor vehicle
while intoxicated and that she vol untarily decided to drive aft er knowingly consuming alcohol.
Like the victim in Feezel , Simpson’s intoxication would ha ve affected her ability to per ceive the risks posed by her conduct and diminished her ability to react to the world around her. See Feezel , 486 Mich at 199.

Further, Simpson’s conduct of turning in front of or swerving directly into oncoming traffic while intoxicated was the result of her gross negligenc e. Simpson’s conduct amounted to more than simply a judgment call regarding the speed of the onc oming car. 1 Instead, Simpson’s actions of driving while intoxicated and turning or swerving in to oncoming traffic demonstrated a wantonness and disregard for the consequences which may ensue from her actions, and indifference to the rights of others. Although defendant was d riving while intoxicated at a high rate of speed, defendant drove straight through an amber light, and he had the right of way. It was not reasonably foreseeable that an intoxicated driver would cross the center line of the road into oncoming traffic or turn directly into the path of an onco ming car. Therefore, I conclude
that the victim’s death was not the natural and direct result o f defendant’s conduct. Accordingly, I believe that the trial court’s findings were clearly erroneou s and that the verdict was against the

1 The majority points out that S impson’s expert testified that S impson could not judge the speed of defendant’s vehicle and that it is more difficult to judge t he speed of an oncoming vehicle at night. However, Simpson’s expert explained that when a driver is intoxicated, his or her vision and perception may be affected due to the alcohol. Also, the e xpert did not opine regarding the effect that Simpson’s intoxicatio n would have had on her abilit y to judge the speed of defendant’s vehicle or her ability to make the decision to turn or swerve in front of an oncoming

car.-3- great weight of the evidence. F or the reasons stated, I would reverse defendant’s conviction and sentence, and remand for entry of an order of conviction for op erating a motor vehicle while
intoxicated and resentenci ng for that conviction.

/s/ Kathleen Jansen