This case has been remanded to us by the Michigan Supreme Court for a determination of whether a jury instruction on gross negligence, which we found erroneous, was harmless.
The facts of this case are set forth in our prior opinion,
People v Thinel,
At trial, the court instructed the jury that it was gross negligence for a person to operate his automobile while under the influence of liquor. We reversed and remanded for a new trial on the ground that the instruction took the determination of gross negligence, an essential element of involuntary manslaughter, away from the jury. Citing
People v Reed,
"Implied malice is where the law draws inferences and conclusions from the act itself. For instance A meets B on the street. A is armed with a revolver. A takes the gun out of his pocket and shoots and kills B without any provocation, without any explanation or justifícation. This is a showing that this is done with malice. And it’s said to be implied malice because the law will imply the existence of malice from the very act itself, from the circumstances under which it was committed.
"The proof of either expressed or implied malice is all the law requires in order to have malice.” [Woods, supra, 595-596.]
The Supreme Court stated that it was error to instruct that the law will imply malice from the unprovoked, inexcusable, unjustifiable killing of another. Woods, supra, 597. The Court then stated:
Given that the instruction was erroneous, the issue becomes whether this error was harmless. The standard applied on appellate review is whether the error was prejudicial. People v Robinson,386 Mich 551 ;194 NW2d 709 (1972).
Under the facts of the immediate case, the defendants were not prejudiced by the erroneous instruction, for the testimony of Willie Lee Lewis, which must have been believed by the jury to find the defendants guilty as accomplices . . ., indicated acts of express malice. No acts supported or allowed the implication of malice; thus the instruction on implied malice was completely superfluous.
A per se harmless error rule cannot be justified by quoting the general rule from cases such as *721 People v Visel,275 Mich 77 , 81;265 NW 781 (1936), that a "[defendant has a right to have a [properly instructed] jury pass upon the evidence.” Whether an instruction is reversible depends on whether it was prejudicial, and no reasoning or case law suggests that we should now discard that sound approach. [Woods, supra, 597-598, 600-601.]
In Alexander, the defendant was charged with second-degree murder after shooting the victim, her boyfriend, after an argument at the defendant’s house. The defendant claimed the shooting was accidental. The trial court instructed the jury that people are presumed to intend the consequences of their acts. The Supreme Court held that this instruction was error, as it infringed upon the defendant’s right to be found guilty of the crime beyond a reasonable doubt. Id., 612-613. The Court then stated:
We must next determine whether the error was harmless beyond a reasonable doubt. "[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt,” by a showing that "the error complained of did not contribute to the verdict obtained.” Chapman v California,386 US 18 , 24;87 S Ct 824 ;17 L Ed 2d 705 (1967). When the improper evidence is merely cumulative and the admissible evidence overwhelming, a constitutional error may be deemed harmless. Harrington v California,395 US 250 ;89 S Ct 1726 ;23 L Ed 2d 284 (1969).
In the immediate case, the defendant was charged with and convicted of second-degree murder. Intent was an element of the offense. However, this essential element was directly disputed by the defendant, for one of her theories of defense was that the killing was accidental. Because the erroneous instruction allowed the shifting of the prosecutor’s burden on a critical element of the *722 case, we cannot say that it did not contribute to the verdict obtained.
This conclusion is further supported by the lack of overwhelming evidence on the element of intent. [Woods, supra, 613-614.]
The Court went on to state that the evidence supported the defendant’s theory of accident, and that, thus, the error was not harmless as the testimony on the defendant’s intent was conflicting.
In the instant case, we find the instructional error to be harmless because of the overwhelming evidence of defendant’s guilt. Defendant had a blood-alcohol level of 0.23 percent. At the accident site, defendant was staggering and incoherent. His eyes were bloodshot and watery, and he smelled of alcohol. He was verbally abusive to the police officers, and thought he was registering for classes at the police station. He did not know why his car was damaged. The accident reconstruction expert testified that defendant’s car was struck by Ms. Anderson’s vehicle when he made a left turn into her path under circumstances such that she had no time to apply her brakes. This case is not similar to Alexander, in which the crucial issue of intent was hotly disputed by the defendant. Rather, defendant in the instant case admitted drinking before driving and stated only that he thought he had enough distance to turn in front of Ms. Anderson. We feel that the instructional error was not one which likely affected the verdict.
Since we find the instructional error to be harmless, we must consider the other issues raised by defendant which were not addressed in our prior opinion. First, defendant claims that there was insufficient evidence that he committed involuntary manslaughter and that the jury’s verdict was against the great weight of the evidence. The
*723
standard of review in a sufficiency claim is whether a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
People v Hampton,
(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another.
(2) Ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand.
(3) The omission to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. [People v Orr,243 Mich 300 , 307;220 NW 777 (1928).] [Harris, supra, 406.]
In
People v Allan,
*724 To preserve the issue of a verdict being against the great weight of the evidence, the losing party must file a motion for a new trial, and the standard of review is whether the court abused its discretion in denying the motion. Ross, supra, 493-494. Defendant in the instant case did file a motion for a new trial, setting forth many claims of error, including a great weight argument. We find that the evidence adduced at trial supports the trial court’s decision that the verdict was not against the great weight of the evidence. Thus, we find no abuse of discretion.
Next, defendant claims that he was denied the effective assistance of counsel because his counsel failed to move for a directed verdict of acquittal on the grounds of insufficient evidence. However, since we have already determined that there was sufficient evidence to convict defendant of involuntary manslaughter, defendant’s claim of ineffective assistance of counsel must fail.
People v Viaene,
The next three issues raised by defendant involve sentencing. Defendant was sentenced to seven to fifteen years imprisonment. According to the sentencing transcript, the probation department found defendant to fall within the C-2 sentencing guideline block, which results in a minimum sentence recommendation of thirty-six to eighty-four months, and the court found defendant to fall within the C-l block, resulting in a recommended minimum of twelve to sixty months. The sentencing judge stated:
I have exceeded the sentencing guidelines because of the defendant’s actions in this case and because of his prior record and because of the *725 great tragedy that involved so many people and the Court believes in light of what happened with the department of corrections in any event the defendant will probably be released fairly early.
The judge did not explain what she meant by her comment regarding the Department of Corrections. On appeal, defendant argues that the court was referring to the Prison Overcrowding Emergency Powers Act, MCL 800.71
et seq.;
MSA 28.1437(1)
et seq.,
and that this was an improper sentencing consideration, citing
People v Fleming,
We also disagree with defendant that his sentence of seven to fifteen years was an abuse of discretion. Defendant had a prior criminal record going back four years, including a conviction for assault. Defendant was on probation at the time of the accident, and admitted he had a substance abuse problem. The sentence does not shock our conscience.
People v Coles,
*726
Finally, we disagree with defendant’s contention that the sentencing court stated insufficient reasons for departure. To the extent that the court considered factors already taken into consideration by the guidelines, i.e., defendant’s prior record, this is permitted.
People v Ridley,
The judgment of the circuit court is affirmed.