PEOPLE OF MI V DAVID BLAIR MILLIRON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 17, 2002
Plaintiff-Appellee,
v
No. 233341
Presque Isle Circuit Court
LC No. 99-091786-FH
DAVID BLAIR MILLIRON,
Defendant-Appellant.
Before: Whitbeck, C.J., and Sawyer and Kelly, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of one count of delivery of morphine,
MCL 333.7401(2)(b), and three counts of resisting and obstructing a police officer, MCL
750.479. The trial court sentenced him to twenty-three to eighty-four months imprisonment on
the delivery conviction and sixteen to twenty-four months’ imprisonment on each count of
resisting and obstructing. Defendant appeals as of right. We affirm. This appeal is being
decided without oral argument pursuant to MCR 7.214(E).
The convictions arose out of a controlled buy by undercover informant Josh Hincka, who
had known defendant for about a year, and defendant’s arrest four months later. At issue on
appeal is a remark made by the prosecutor during his opening statement concerning the evidence
he would present:
The second witness that I’m going to introduce to you today is the young
man named Josh Hincka. You saw him in the courtroom earlier this morning.
You will learn when Josh testifies that he had been involved for some period of
time with drugs, personally involved with them. He had a problem. There were
some things that had gone poorly in his personal life. He hadn’t responded in a
good way. He was involved with – with drugs. The defendant was a friend and
an occasional user with him –
Defense counsel objected and the prosecutor changed the subject when he resumed his opening
statement. Defendant subsequently moved for a mistrial, arguing that any evidence of his drug
use would be inadmissible under MRE 404(b) because the prosecutor failed to notify defense
counsel that he intended to introduce it. The trial court denied the motion.
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On appeal, defendant argues that the prosecutor’s reference to defendant’s drug use
without notice of intent to introduce the evidence denied him a fair trial. He contends that the
lack of notice contrary to MRE 404(b)(2) unfairly prejudiced the defense because it prevented
counsel from questioning potential jurors about that information and it was unrealistic to expect
the jurors to disregard the prosecutor’s statement. We decline to reverse on this basis.
Under MRE 404(b)(2), the prosecution must provide in advance of trial reasonable notice
of the general nature of any other acts evidence it intends to introduce at trial and the rationale
for its admission. This Court has treated noncompliance with the notice requirement as an
evidentiary error subject to nonconstitutional harmless error analysis. See People v Hawkins,
245 Mich App 439, 453; 628 NW2d 105 (2001). In order to overcome the presumption that a
preserved nonconstitutional error is harmless, a defendant must persuade the reviewing court that
it is more probable than not that the error in question was outcome determinative. People v
Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999). An error is deemed to have been
outcome determinative if it undermined the reliability of the verdict. See People v Snyder, 462
Mich 38, 45; 609 NW2d 831 (2000).
Assuming that evidence of defendant’s prior drug use was otherwise admissible other
acts evidence – and defendant does not contend otherwise – the lack of notice in this case was
harmless error. The remark was brief and evidence of defendant’s drug use, albeit after the buy
in this case, was admitted at trial. Defendant’s claim that defense counsel may have asked the
potential jurors different questions had he known of the prosecutor’s intent to produce evidence
of defendant’s drug use is speculative and, in any event, the judge questioned the jurors about
whether they could set aside their opinions in favor of or opposed to drug use and delivery.
Under these circumstances, defendant has failed to establish that it is more probable than not that
the error was outcome determinative. Lukity, supra.
Affirmed.
/s/ William C. Whitbeck
/s/ David H. Sawyer
/s/ Kirsten Frank Kelly
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