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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v DONALD NELSON CLEMENS, JR., Defendant-Appellant.

UNPUBLISHED November 19, 2009

No. 288217 Lake Circuit Court LC No. 08-004622-FH

Before: Talbot, P.J., and O'Connell and Davis, JJ. PER CURIAM. After a jury trial, defendant was convicted of one count of operation of a vehicle while under the influence of liquor (OUIL), third offense, MCL 257.625, and one count of resisting and obstructing a police officer, MCL 750.81d(1). Defendant appeals as of right. We affirm. This appeal has been decided without oral argument pursuant to MCR 7.214(E). I. Facts A prosecution witness testified that he observed defendant's car swerving on the road on the afternoon of March 16, 2008. According to the witness, defendant's car then turned, pulled off the road, and struck a mailbox. Defendant appeared to be intoxicated, and the witness contacted the police to report defendant's behavior. As the witness was contacting the police, defendant backed his vehicle into a snowy yard and got stuck. He walked to a nearby house, returned with a shovel, and was attempting to free his car from the snow when Lake County Sheriff Deputy Donald Maiville arrived. Maiville testified that defendant did not notice his arrival. Maiville spoke to defendant, who appeared to have a hard time standing up and was stumbling around. Defendant said he was trying to back into his driveway but got stuck. Defendant appeared to Maiville to be "highly intoxicated." His eyes were glassy and red, his speech was slurred, and he smelled of intoxicants. In response to the prosecutor's question at trial concerning whether Maiville then directed defendant to do anything, Maiville stated: At that point, we engaged in a brief conversation. Like, again, I had asked what had happened. I had also brought up the fact of him hitting a mailbox, which he stated to me he didn't recall hitting any mailbox, but that if he hit a -1-

mailbox that he was sorry. Through the course of the conversation, he proceeded to ask me why I was doing this to him and that he was going to go back to prison. And I asked him, you know, for doing what, and

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