PEOPLE OF MI V HOLLY ANN GEIGER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 14, 2000
Plaintiff-Appellee,
v
No. 212334
Monroe Circuit Court
LC No. 97-028640-FH
HOLLY ANN GEIGER,
Defendant-Appellant.
Before: Hoekstra, P.J., and Cavanagh and White, JJ.
PER CURIAM.
Defendant was convicted by a jury of possession of less than twenty-five grams of
cocaine, MCL 333.7403(2)(a)(v); MSA 14.15(7403)(2)(v). She was sentenced as a second
controlled substance offender, MCL 333.7413(2); MSA 14.15(7413)(2), to a term of two to eight
years’ imprisonment. She appeals as of right. We affirm.
Defendant argues that the trial court abused its discretion in allowing evidence of a prior
similar act pursuant to MRE 404(b). We conclude, however, that any error in the admission of
the similar acts testimony was harmless under People v Lukity, 460 Mich 484, 495-496; 596
NW2d 607 (1999).
In the instant case, Officer Foley testified that as defendant walked to a white vehicle
after speaking with Officer Foley, she slipped her left hand into her left front pocket. Defendant
opened the car door with her right hand and kept her left hand in her pocket as she entered the
vehicle. Foley observed the seat when defendant opened the door and saw nothing in the seat
when defendant entered the vehicle. Foley then began talking with the driver, Blake Morrow,
and saw defendant ease her hand out of her pocket and slip it down towards her leg and under her
left thigh. As this occurred, Morrow reached to the rear of the car with his right hand and
retrieved a black and red vest out of the back seat, which he placed over defendant’s left hand
and leg. After searching defendant and Morrow and finding nothing, Foley checked the vehicle.
In the front right passenger seat, underneath the vest, on top of the seat where defendant’s hand
had been, Foley found a crack pipe. Foley further testified that when he found the pipe he asked
defendant whose pipe it was, and she first stated that she did not know because a lot of people
had been in and out of the vahicle. Defendant said she needed to talk to Foley immediately,
apparently regarding James Baker, another man at the scene who defendant said had threatened
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her. Foley told her it was not an appropriate time and informed her of his observations made
with respect to the pipe. Foley remarked to defendant that the pipe was more than likely hers,
and defendant said “yeah it’s probably mine, but I still need to talk to you right away.” The pipe
was not dusted for fingerprints. Over defendant’s objection, the prosecutor was permitted to
introduce the testimony of Jennifer Bartley, a former police officer, that two years earlier she had
transported defendant in the back of her car to be “lodged” on a complaint, and that when she
checked the back of her car after removing defendant, she found a crack pipe. It was stipulated
that defendant pled guilty to possession of cocaine as a result.
Defendant denied putting her hand in her pocket or under her thigh, as described by
Foley, and testified that it was too dark out for Foley to have seen what he said he observed. She
denied admitting that the pipe was hers. She testified that she had known Morrow for a few
years and that he used cocaine and had used a crack pipe that night. She testified that the vest
belonged to Morrow, and that she did not have a crack pipe on her when she entered the vehicle.
She stated that she “had a chance to throw one out if I had one way before I came upon Officer
Foley.” The owner of the car testified in defendant’s behalf that on a different occasion, shortly
after the incident in question, he picked Morrow up with defendant and Morrow got out after a
few blocks. The owner was pulled over by police a few blocks down the road, and police found
a crack pipe in the back seat where Morrow had been sitting.
With or without the prior acts testimony, the evidence depicted a situation where the pipe
might have belonged to either defendant, Morrow, or some other previous occupant of the
vehicle, and the question who actually possessed it depended on the credibility of Foley’s
testimony regarding his observations. If the jury believed that the seat was empty before
defendant entered the vehicle, and that Foley observed the movements he testified he saw, then
the evidence strongly supported defendant’s guilt. Morrow’s hand was never observed under the
vest. Defense counsel argued that it was likely that the pipe fell out of the vest. However, it is
highly unlikely that Morrow would have retrieved a vest containing a pipe from the back seat
only to place it even closer to him in the front seat. The circumstances are far more consistent
with the view that Morrow had observed, and was assisting, defendant’s efforts to conceal the
pipe. Further, defense counsel made a strong argument to the jury focusing the jury’s attention
on the point that regardless of defendant’s background, the only question for the jury was
whether the pipe found in the car that night was hers. Under the circumstances presented here,
where there was testimony that defendant and the vehicle were involved with drug dealers and
users, and where apart from the physical circumstances testified to by Foley, the pipe could just
as likely have belonged to Morrow, we conclude that testimony that defendant had possessed a
different crack pipe two years before added little to the case and most likely was not outcome
determinative. Lukity, supra at 495-496.
Next, defendant contends that the trial court plainly erred in using an improper sentencing
guidelines grid for possession of over twenty-five grams of a controlled substance, rather than
possession of less than twenty-five grams. This issue is without merit. The judicial sentencing
guidelines do not apply to defendants whose sentences are enhanced under the subsequent
offender provisions of the controlled substances act. People v Edgett, 220 Mich App 686, 691,
694; 560 NW2d 360 (1996). Defendant’s sentence is within the statutory maximum for a second
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possession offense and does not represent an abuse of the sentencing court’s discretion. People v
Hansford (After Remand), 454 Mich 320, 326; 562 NW2d 460 (1997).
Affirmed.
/s/ Mark J. Cavanagh
/s/ Helene N. White
I concur in the result only.
/s/ Joel P. Hoekstra
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