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Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v GEORGE EVAN FEEZEL, Defendant-Appellant.

Chief Justice:

Justices:

Marilyn Kelly

Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway

FILED JUNE 8, 2010

No. 138031

BEFORE THE ENTIRE BENCH CAVANAGH, J. Defendant struck and killed a pedestrian when he was operating his vehicle while intoxicated. A jury convicted defendant of failing to stop at the scene of an accident that resulted in death, MCL 257.617(3), operating while intoxicated (OWI), second offense, MCL 257.625(1), and operating a motor vehicle with the presence of a schedule 1 controlled substance in his body, causing death, MCL 257.625(4) and (8). The Court of Appeals affirmed defendant's convictions. We granted leave to appeal. People v Feezel, 483 Mich 1001 (2009). We hold that the trial court abused its discretion by failing to admit evidence of the victim's intoxication because it was relevant to the element of causation in MCL 257.617(3) and MCL 257.625(4) and (8). We hold that the error resulted in a miscarriage

of justice, which therefore requires reversal under MCL 769.26. In addition, defendant's conviction under MCL 257.625(4) and (8) was based on an improper interpretation of MCL 257.625(8) and must be vacated on that ground also. We overrule People v Derror, 475 Mich 316; 715 NW2d 822 (2006), to the extent that it is inconsistent with this opinion. Accordingly, we reverse the judgment of the Court of Appeals, vacate

defendant's convictions under MCL 257.617(3) and MCL 257.625(4) and (8), and remand the case to the trial court for further proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY Shortly before 2:00 a.m. on July 21, 2005, defendant struck and killed a pedestrian, Kevin Bass, with his car while traveling on Packard Road in Ypsilanti Township in Washtenaw County. At the time of the accident, Packard Road was an unlit, five-lane road, and it was dark outside and raining heavily. Although there was a sidewalk adjacent to Packard Road, the victim was walking down the middle of the road, with his back to oncoming traffic. The victim was extremely intoxicated, and his blood alcohol content (BAC) was at least 0.268 grams per 100 milliliters of blood. Although defendant initially left the scene of the accident after hitting the victim, he later returned while the police were investigating the incident and was arrested. Defendant's BAC at the time of the accident was an estimated 0.091 to 0.115 grams per 100 milliliters. There were also 6 nanograms of 11-carboxy-tetrahydrocannabinol (11-carboxy-THC) per milliliter in defendant's blood. Defendant was charged with several offenses, including OWI causing death; operating a motor vehicle with the presence of a schedule 1

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controlled substance in his body, causing death; and failure to stop at the scene of an accident that resulted in death. Before trial, the prosecutor filed a motion in limine to preclude evidence related to the victim's intoxication. The prosecutor argued that the victim's intoxication was

irrelevant to whether defendant caused the accident or caused the victim's death. The trial court agreed and suppressed the evidence. At trial, testimony revealed that defendant had been at two bars earlier that evening. At one bar, defendant was accompanied by Nicole Norman. Norman testified that she and defendant were at the bar from 11 p.m. to 1:30 a.m. At no time did she see defendant smoke marijuana, and defendant did not smell of marijuana. Norman further testified that after they left the bar, defendant drove her to Stephanie Meyers's house. After picking up Meyers, defendant dropped Norman and Meyers off at Norman's car. Meyers testified that she was a passenger in Norman's car and Norman was driving down Packard Road moments before the accident. Meyers stated that it was pouring outside, and she did not see the victim until he was alongside the driver's side door. It was then that Meyers and Norman "snapped [their] necks backwards noticing him . . . ." Meyers also recalled that when Norman saw the victim, she stated, "That man's going to get killed." In addition, Norman testified that had she been driving in the lane that the victim was walking in, she probably would not have been able to stop her vehicle in time to avoid hitting him. Defendant was traveling down Packard Road moments after Norman's car had passed the victim. Defendant's accident reconstruction expert found that defendant would have had 3

to have been driving 15 miles per hour to avoid hitting the victim. The prosecution's accident reconstruction expert agreed with defense counsel that if defendant first saw the victim from 30 feet away, then defendant would have had to have been traveling at a rate of 10 to 15 miles per hour to avoid the accident. Defendant was convicted of failing to stop at the scene of an accident that resulted in death; OWI, second offense; and operating a motor vehicle with the presence of a schedule 1 controlled substance in his body, causing death. Defendant appealed,

claiming, in relevant part, that the trial court abused its discretion by refusing to admit evidence of the victim's BAC, that the trial court erred by failing to instruct the jury on proximate cause with respect to the charges of failing to stop at the scene of an accident that resulted in death and operating a motor vehicle with a schedule 1 controlled substance, causing death, and that his conviction of operating a motor vehicle, causing death, based on the presence of 11-carboxy-THC in his body violated his due process rights under the Fifth and Fourteenth amendments of the United States Constitution. In a divided decision, the Court of Appeals affirmed defendant's convictions. Noting that it is foreseeable for a pedestrian to be in a roadway, the majority reasoned that the trial court did not abuse its discretion by suppressing the evidence of the victim's BAC because the victim's level of "intoxication was not relevant to the critical issue in the proximate cause analysis, which is whether the victim's death was a foreseeable consequence of defendant's conduct of driving while intoxicated . . . ." People v Feezel, unpublished opinion per curiam of the Court of Appeals, issued November 13, 2008 (Docket No. 276959), p 12. Moreover, the majority concluded that the trial court did not 4

err by failing to reinstruct the jurors on proximate causation because proximate causation is not an element of MCL 257.617(3) and any error related to MCL 257.625(8) was harmless. Finally, the majority concluded that defendant's due process arguments had been rejected by this Court in Derror. The partial dissent argued that the trial court's deficient instruction with respect to MCL 257.625(8) and its incorrect evidentiary ruling deprived defendant of a substantial defense and thus denied defendant his right to a fair trial. Feezel, unpub op at 1, 6 (SAAD, C.J., concurring in part and dissenting in part). application for leave to appeal. 483 Mich 1001 (2009). II. ANALYSIS A. THE CAUSATION ELEMENT The first issue presented in this appeal is whether the trial court abused its discretion by refusing to admit evidence of the victim's BAC. We hold that, under the facts of this case, the trial court abused its discretion by refusing to admit the evidence because it was relevant to the element of proximate causation in MCL 257.617(3) and MCL 257.625(4) and (8). Moreover, because the error resulted in a miscarriage of justice, it requires reversal under MCL 769.26. 1. STANDARD OF REVIEW A trial court's decision to either admit or exclude evidence "will not be disturbed absent an abuse of . . . discretion." People v McDaniel, 469 Mich 409, 412; 670 NW2d We granted defendant's

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659 (2003). A trial court abuses its discretion when its decision falls "outside the range of principled outcomes." People v Smith, 482 Mich 292, 300; 754 NW2d 284 (2008). If a reviewing court concludes that a trial court erred by excluding evidence, under MCL 769.26 the verdict cannot be reversed "unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice." In examining whether a miscarriage of justice occurred, the relevant inquiry is "the `effect the error had or reasonably may be taken to have had upon the jury's decision.'" People v Straight, 430 Mich 418, 427; 424 NW2d 257 (1988), quoting Kotteakos v United States, 328 US 750, 764; 66 S Ct 1239; 90 L Ed 1557 (1946). If the evidentiary error is a nonconstitutional, preserved error, then it "is presumed not to be a ground for reversal unless it affirmatively appears that, more probably than not, it was outcome determinative." People v Krueger, 466 Mich 50, 54; 643 NW2d 223 (2002). An error is "outcome determinative if it undermined the

reliability of the verdict"; in making this determination, this Court should "focus on the nature of the error in light of the weight and strength of the untainted evidence." Id. (quotation marks and citations omitted). 2. OVERVIEW OF CAUSATION Three of the offenses with which defendant was charged contain an element of causation, so the prosecution was required to prove causation beyond a reasonable doubt for each offense. The Court of Appeals erred to the extent that it held otherwise. The plain language of the statutes that prohibit OWI causing death, MCL 257.625(1) and (4),

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and the statutes that prohibit operating a motor vehicle with the presence of a schedule 1 controlled substance in one's body, causing death, MCL 257.625(4) and (8), requires that the defendant's operation of a motor vehicle have caused the death of another person.1 Likewise, the plain language of MCL 257.617(3) contains an element of causation. Specifically, the statute imposes criminal liability if an individual fails to stop "following an accident caused by that individual and the accident results in the death of another . . . ." MCL 257.617(3) (emphasis added).2 Thus, because the statute specifically

1

MCL 257.625 states, in relevant part:

(1) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person is operating while intoxicated. . . . * * * (4) A person, whether licensed or not, who operates a motor vehicle in violation of subsection (1), (3), or (8) and by the operation of that motor vehicle causes the death of another person is guilty of a crime . . . . * * * (8) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person has in his or her body any amount of a controlled substance listed in schedule 1 under section 7212 of the public health code, 1978 PA 368, MCL 333.7212, or a rule promulgated under that section, or of a controlled substance described in section 7214(a)(iv) of the public health code, 1978 PA 368, MCL 333.7214. [Emphasis added.]
2

The statute provides, in relevant part:

(1) The driver of a vehicle who knows or who has reason to believe that he or she has been involved in an accident upon public or private

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requires the prosecution to establish that the accident was "caused" by the accused, the Court of Appeals ignored the plain language of the MCL 257.617(3) and erred by holding that it does not contain a causation element. Having determined that each of the statutes contains a causation element, we now turn to the definition of the term "cause." In People v Schaefer, we stated that, in the criminal law context, the term "`cause' has acquired a unique, technical meaning." People v Schaefer, 473 Mich 418, 435; 703 NW2d 774 (2005). Specifically, the term and concept have two parts: factual causation and proximate causation. Id. at 435-436. Factual causation exists if a finder of fact determines that "but for" defendant's conduct the result would not have occurred. Id. A finding of factual causation alone, however, is not sufficient to hold an individual criminally responsible. Id. at 436. The prosecution must also establish that the

property that is open to travel by the public shall immediately stop his or her vehicle at the scene of the accident and shall remain there until the requirements of [MCL 257.619] are fulfilled or immediately report the accident to the nearest or most convenient police agency or officer to fulfill the requirements of [MCL 257.619(a)] and (b) if there is a reasonable and honest belief that remaining at the scene will result in further harm. The stop shall be made without obstructing traffic more than is necessary. * * * (3) If the individual violates subsection (1) following an accident caused by that individual and the accident results in the death of another individual, the individual is guilty of a felony punishable by imprisonment for not more than 15 years or a fine of not more than $10,000.00, or both. [MCL 257.617 (emphasis added).]

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defendant's conduct was a proximate cause of, in this case, the accident or the victim's death. Id.3 Proximate causation "is a legal construct designed to prevent criminal liability from attaching when the result of the defendant's conduct is viewed as too remote or unnatural." Id. If the finder of fact determines that an intervening cause supersedes a defendant's conduct "such that the causal link between the defendant's conduct and the victim's injury was broken," proximate cause is lacking and criminal liability cannot be imposed. Id. at 436-437. Whether an intervening cause supersedes a defendant's

conduct is a question of reasonable foreseeability. Id. at 437. Ordinary negligence is considered reasonably foreseeable, and it is thus not a superseding cause that would sever proximate causation. Id. at 437-438. In contrast, "gross negligence" or "intentional misconduct" on the part of a victim is considered sufficient to "break the causal chain between the defendant and the victim" because it is not reasonably foreseeable. Id. Gross negligence, however, is more than an enhanced version of ordinary negligence. Id. at 438. "It means wantonness and disregard of the consequences which may ensue . . . ." People v Barnes, 182 Mich 179, 198; 148 NW 400 (1914).4 "Wantonness" is defined as

While there are competing positions regarding the law of proximate causation, and I personally remain committed to my position regarding proximate causation presented in Schaefer, 473 Mich at 450-452 (CAVANAGH, J., concurring in part and dissenting in part), and People v Tims, 449 Mich 83, 110-125; 534 NW2d 675 (1995) (CAVANAGH, J., dissenting), this Court's decision in Schaefer is the current law in the state of Michigan. This case is distinguishable from Barnes, in which this Court defined "gross negligence" as "wantonness and disregard of the consequences which may ensue, and
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"[c]onduct indicating that the actor is aware of the risks but indifferent to the results" and usually "suggests a greater degree of culpability than recklessness . . . ." Black's Law Dictionary (8th ed). Therefore, while a victim's negligence is not a defense, it is an important factor to be considered by the trier of fact in determining whether proximate cause has been proved beyond a reasonable doubt. See, e.g., People v Campbell, 237 Mich 424, 430-431; 212 NW 97 (1927).5 3. SUPPRESSION OF THE EVIDENCE We must examine whether, in this case, the victim's BAC was a relevant and admissible fact for the jury's consideration when determining whether the prima facie element of proximate causation was proved beyond a reasonable doubt. We hold that it was. However, we caution that trial courts must make a threshold determination that there is a jury-submissible question of fact regarding gross negligence before such

indifference to the rights of others that is equivalent to a criminal intent." Barnes, 182 Mich at 198 (emphasis added). In that case, the issue was whether a defendant's conduct amounted to gross negligence, therefore warranting a conviction for involuntary homicide. Id. Thus, the Court's definition of "gross negligence" provided the appropriate standard to hold a defendant criminally responsible for his or her careless acts. Id. The operative question here is whether the victim's conduct was grossly negligent and, therefore, cut off proximate cause and relieved defendant of criminal liability. Thus, because the conduct of the victim is at issue when determining whether there was a superseding cause, the latter portion of the Court's definition of "gross negligence" in Barnes is not applicable. Whether, in a multiple vehicle accident, a victim-driver's intoxication raises a presumption of gross negligence is a question that we need not and do not reach in this case. See People v Lardie, 452 Mich 231, 251; 551 NW2d 656 (1996), overruled on other grounds by Schaefer, 473 Mich at 422.
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evidence becomes relevant and admissible. Under the Michigan Rules of Evidence, evidence is admissible only if it is relevant as defined by MRE 401 and is not otherwise excluded under MRE 403.6 In People v Crawford, 458 Mich 376, 388; 582 NW2d 785 (1998), we explained that "[p]ursuant to MRE 401, evidence is relevant if two components are present, materiality and probative value." "Materiality is the requirement that the proffered evidence be related to `any fact that is of consequence' to the action." Id., quoting MRE 401. This Court has stated that "[b]ecause the prosecution must carry the burden of proving every element beyond a reasonable doubt, . . . the elements of the offense are always `in issue' and, thus, material." Crawford, 458 Mich at 389. When examining whether the

proffered evidence is probative, a court considers whether the "evidence tends `to make
6

MRE 402 provides:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court. Evidence which is not relevant is not admissible. MRE 401 provides: "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. MRE 403 provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

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the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence,'" and "[t]he threshold is minimal: `any' tendency is sufficient probative force." Id. at 389-390 (citations omitted). Moreover, MRE 403 excludes evidence, even if relevant, only if its probative value is "substantially outweighed" by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Thus, MRE 403 "does not prohibit prejudicial evidence; only evidence that is unfairly so." Crawford, 458 Mich at 398. Further, "[e]vidence is unfairly prejudicial when there exists a danger that marginally probative evidence will be given undue or preemptive weight by the jury." Id. (emphasis added). Under these rules of evidence, a court must make a threshold determination in cases such as this of whether evidence of the victim's intoxication is relevant to the element of proximate causation. If the evidence is relevant, a court must also determine whether the evidence is nevertheless inadmissible under MRE 403. We conclude that, under the facts of this case, the evidence of the victim's BAC was relevant because it was both material and probative. In addition, its probative value was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury because the evidence was highly probative of the element of proximate causation. First, the materiality requirement of MRE 401 was met because, as explained earlier, the charges at issue required the prosecution to prove an element of causation beyond a reasonable doubt. See Crawford, 458 Mich at 389. In addition, under the broad definition of "probative," evidence of the victim's BAC must merely have any 12

tendency to make gross negligence on the part of the victim more or less probable. See id. at 389-390. Depending on the facts of a particular case, there may be instances in which a victim's intoxication is not sufficiently probative, such as when the proofs are insufficient to create a question of fact for the jury about whether the victim was conducting himself or herself in a grossly negligent manner. Generally, the mere fact that a victim was intoxicated at the time a defendant committed a crime is not sufficient to render evidence of the victim's intoxication admissible. While intoxication may explain why a person acted in a particular manner, being intoxicated, by itself, is not conduct amounting to gross negligence. 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 perceive the risks posed by his conduct and diminished his capacity to react to the world around him.7 Indeed, in this case, the proffered superseding cause was the victim's presence in the middle of the road with his back to traffic at night during a rain storm with a sidewalk nearby. Thus, the proofs were sufficient to create a jury-submissible question about whether the victim was grossly negligent, and the victim's high level of intoxication would have aided the jury in determining whether the victim acted with The National Highway Traffic Safety Administration has stated that at a BAC of 0.08 percent a person's "[m]uscle coordination becomes poor (e.g., balance, speech, vision, reaction time, and hearing)," it is "[h]arder to detect danger," and a person's "[j]udgment, self-control, reasoning, and memory are impaired[.]" National Highway Traffic Safety Administration, The ABCs of BAC: A Guide to Understanding Blood Alcohol Concentration and Alcohol Impairment, available at <http://www. stopimpaireddriving.org/ABCsBACWeb/images/ABCBACscr.pdf> (accessed June 2, 2010).
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"wantonness and a disregard of the consequences which may ensue . . . ." Barnes, 182 Mich at 198. Second, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The evidence was not unfairly prejudicial because, as explained earlier, the victim's high level of intoxication went to the heart of whether the victim was grossly negligent; thus, the evidence was not merely marginally probative, but instead was highly probative of the element of causation. In addition, the probative value of the evidence was not, as the prosecution argues, substantially outweighed by the danger of confusion of the issues or misleading the jury. The prosecution's argument that the admission of evidence of the victim's BAC would "shift responsibility" from defendant ignores that under the circumstances of this case, the victim's conduct directly related to the disputed element of proximate causation and, therefore, whether the victim's actions amounted to ordinary or gross negligence. See, e.g., May v Goulding, 365 Mich 143, 148; 111 NW2d 862 (1961) (describing the difference between wanton misconduct and ordinary negligence as "`faults of different hues in the spectrum of human conduct'") (citation omitted). As a result, the probative value of the victim's high level of intoxication was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury because, under the facts of this case, the victim's BAC was highly probative of the element of proximate causation, which necessarily required the trier of fact to determine whether the victim's

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own behavior amounted to a superseding cause.8 For all these reasons, we disagree with the conclusion of the Court of Appeals that the evidence was irrelevant because the "victim's intoxication, or lack thereof, does not impact the foreseeability of an intoxicated driver striking a pedestrian in the road." Feezel, unpub op at 11. While it is true that when a person drives intoxicated it is foreseeable that the person may cause an accident or possibly strike a pedestrian, this general premise ignores the fact that proximate causation must be decided on a case-bycase basis. See Stoll v Laubengayer, 174 Mich 701, 705; 140 NW 532 (1913) (stating that "[w]hile this court has never apparently attempted to accurately define the term `proximate cause,' it has in many cases applied the principle as enunciated in the authorities to the particular facts under consideration") (emphasis added).9 Indeed, this principle is embedded within the concept of proximate causation, which requires the trier of fact to determine whether the victim's own conduct amounted to a superseding cause.
8

See Schaefer, 473 Mich at 438-439 (stating that gross negligence "by the

We stress that ordinary negligence on the part of a victim is insufficient to exculpate an intoxicated driver. See Schaefer, 473 Mich at 437-438 (stating that "gross negligence" or "intentional misconduct" on the part of a victim is sufficient to "break the causal chain between the defendant and the victim" because it is not reasonably foreseeable). In fact, this Court has previously stated that while "[p]edestrians in a public highway have a right to assume that the driver of an automobile will use ordinary care for their protection, . . . they may not rest content on that assumption and take no care for their own safety." Campbell, 237 Mich at 432. Thus, "[t]he driver of an automobile has a right to assume that a pedestrian will use ordinary care for his own safety, and any assumption that he has a right to indulge in may be considered by the jury with the other facts . . . ." Id. at 431-432.
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victim . . . will generally be considered a superseding cause") (emphasis added). Thus, to hold defendant criminally responsible, the trier of fact must find beyond a reasonable doubt that defendant's conduct was a proximate cause of this victim's death or of this accident given the particular facts of the case. Therefore, while the victim's intoxication is not a defense, under the facts of this case it should have been a factor for the jury to consider when determining whether the prosecution proved beyond a reasonable doubt that defendant's conduct was a proximate cause of the accident, under MCL 257.617(3), or a proximate cause of the victim's death, under MCL 257.625(4) and (8). We emphasize, however, that evidence of a victim's intoxication may not be relevant or admissible in all cases. Indeed, the primary focus in a criminal trial remains on the defendant's conduct. Accordingly, any level of intoxication on the part of a victim is not automatically relevant, and the mere consumption of alcohol by a victim does not automatically amount to a superseding cause or de facto gross negligence. Instead, under MRE 401, a trial court must determine whether the evidence tends to make the existence of gross negligence more probable or less probable than it would be without the evidence and, if relevant, whether the evidence is inadmissible under the balancing test of MRE 403. Thus, when determining whether evidence of a victim's intoxication is admissible, the trial court must make a threshold determination that evidence of the victim's conduct is sufficiently probative for a proper purpose--to show gross negligence. In other words, the trial court must determine that the issue of gross 16

negligence is "in issue." See People v McKinney, 410 Mich 413, 418; 301 NW2d 824 (1981). The court may allow the admission of evidence of the victim's intoxication to aid the jury in determining whether the victim's actions were grossly negligent only when the proofs are sufficient to create a question of fact for the jury. If a trial court cannot come to the conclusion that a reasonable juror could view the victim's conduct as demonstrating a wanton disregard of the consequences that may ensue, however, then the evidence of intoxication is not admissible. Applying these standards to the facts of this case, we hold that the trial court abused its discretion by failing to admit the evidence of the victim's BAC. In excluding the evidence, the trial court deprived the jury of its ability to consider an important, relevant factor in determining whether the victim was grossly negligent. As a result, the error undermined the reliability of the verdict. We therefore reverse the judgment of the Court of Appeals and vacate defendant's convictions of those offenses. 4. JURY INSTRUCTIONS To aid the trial court on remand, we note that in this case, the jury instructions, when read as a whole, may have been confusing. In Schaefer, we stated that the term "cause" is "a legal term of art normally not within the common understanding of jurors . . . ." Schaefer, 473 Mich at 441. As a result, a jury could not be expected to understand that the term "required the prosecutor to prove both factual causation and proximate causation." Id.

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The trial court instructed the jury and gave the jury a written instruction on the term's unique meaning, but the instruction was buried within the elements of the charge of OWI causing death and not included in the instructions for MCL 257.617(3) and MCL 257.625(4) and (8). Moreover, the instructions for these other charges were separated from the causation instruction by instructions on lesser included offenses and a jury verdict form. Because the potential deprivation of personal rights in criminal cases is extreme and a defendant is "entitled to have all the elements of the crime submitted to the jury in a charge which [is] neither erroneous nor misleading," People v Pepper, 389 Mich 317, 322; 206 NW2d 439 (1973), we caution the trial court on remand to avoid possible confusion by either reinstructing the jury on causation for each crime that contains a causation element or by referring the jurors back to its earlier causation instruction. B. DEFENDANT'S CONVICTION UNDER MCL 257.625(4) AND (8) The next issue presented in this appeal is whether defendant's conviction under MCL 257.625(4) and (8) was proper.10 In Derror, a majority of this Court held that 1110

Although this Court is vacating defendant's conviction under MCL 257.625(4) and (8) because the trial court abused its discretion by failing to admit evidence of the victim's intoxication, this Court is not prevented from considering whether Derror was wrongly decided because the possibility remains that defendant will be retried under MCL 257.624(4) and (8) on remand. Thus, we disagree with the partial dissent that it is unnecessary to reach this issue. Moreover, although defendant had trace amounts of THC in his system, the amount of THC was below the threshold of the Michigan State Police's reporting protocol, and the prosecution only charged defendant with having 11carboxy-THC in his system. The partial dissent's statement that "it is undisputed that defendant was guilty of violating this statute by virtue of the presence of actual THC" in his blood is disingenuous at best.

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carboxy-THC, a byproduct of metabolism created when the body breaks down the psychoactive ingredient of marijuana, is a schedule 1 controlled substance under MCL 333.7212 of the Public Health Code. Derror, 475 Mich at 319-320. Derror also clarified Schaefer by holding that in prosecutions involving a violation of MCL 257.625(8), "the prosecution is not required to prove beyond a reasonable doubt that a defendant knew he or she might be intoxicated" because the section does not require intoxication or impairment. Id. at 334. Thus, because the prosecution need only establish that a

defendant had any amount of a schedule 1 controlled substance in his or her body while operating a motor vehicle, under Derror, a person who operates a motor vehicle with the presence of any amount of 11-carboxy-THC in his or her system violates MCL 257.625(8). Id. at 320. We hold that 11-carboxy-THC is not a schedule 1 controlled substance under MCL 333.7212 and, therefore, a person cannot be prosecuted under MCL 257.625(8) for operating a motor vehicle with any amount of 11-carboxy-THC in his or her system. As a result, Derror was wrongly decided, and because the doctrine of stare decisis supports overruling Derror, we overrule Derror to the extent that it is inconsistent with this opinion. 1. STANDARD OF REVIEW AND THE RULES OF STATUTORY INTERPRETATION Questions of statutory interpretation are reviewed de novo. Potter v McLeary, 484 Mich 397, 410; 774 NW2d 1 (2009). The primary goal is to give effect to the intent of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515;

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573 NW2d 611 (1998). When a statute is ambiguous, judicial construction is appropriate to determine the statute's meaning. See id. When determining the Legislature's intent, the "`statutory language is given the reasonable construction that best accomplishes the purpose of the statute.'" Id. (citation omitted). Indeed, "[i]t is a well-established rule of statutory construction that provisions of a statute must be construed in light of the other provisions of the statute to carry out the apparent purpose of the Legislature." Farrington v Total Petroleum, Inc, 442 Mich 201, 209; 501 NW2d 76 (1993). As a result, "the entire act must be read, and the interpretation to be given to a particular word in one section arrived at after due consideration of every other section so as to produce, if possible, a harmonious and consistent enactment as a whole." Grand Rapids v Crocker, 219 Mich 178, 182-183; 189 NW 221 (1922). 2. BACKGROUND: MCL 257.625(8) AND DERROR MCL 257.625(8) states, in relevant part: A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person has in his or her body any amount of a controlled substance listed in schedule 1 under section 7212 of the public health code, 1978 PA 368, MCL 333.7212, or a rule promulgated under that section . . . . [Emphasis added.] Under

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