PEOPLE OF MI V JASMENE ARNAYE CLAY
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 11, 2004
Plaintiff-Appellee,
v
No. 247394
Saginaw Circuit Court
LC No. 02-021827-FH
JASMENE ARNAYE CLAY,
Defendant-Appellant.
Before: Murray, P.J., and Neff and Donofrio, JJ.
PER CURIAM.
Defendant appeals as of right from her jury trial convictions for possession with intent to
deliver less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv), possession of marijuana, MCL
333.7403(2)(d), maintaining a drug house, MCL 333.7405(d), and possession of a firearm during
the commission of a felony, MCL 750.227b. Defendant was sentenced to 180 days’ jail for the
cocaine conviction, two days’ jail for the marijuana conviction, two days’ jail for the maintaining
a drug house conviction, and two years’ imprisonment for the felony-firearm conviction. We
affirm.
I. Material Facts
On March 8, 2002, a search warrant was executed at 2702 South Jefferson for narcotics.
At the time the search warrant was executed, defendant and a small child were present in the
house. Several documents were in defendant’s name and indicated her residency at 2702 South
Jefferson, including a receipt from Consumers Energy, a Team One Credit Union joint account
between defendant and Gwendolyn Clay, and a cellular telephone bill in defendant’s name. In
the master bedroom, there were two containers on the dresser, one containing a number of small
Ziploc bags containing marijuana, and the other containing a number of empty Ziploc bags.
Also on the dresser was a small pile of unpackaged marijuana, some currency, and a single-edge
razor blade. An unloaded handgun1 and four rounds of .357 ammunition were located in the
dresser along with two hand-held scales and defendant’s driver’s license. A large sum of
1
The handgun located in the drawer had been reported as stolen in 2001.
-1-
currency was located in a dresser drawer. In the bottom of the dresser, Detective Mark Garabelli
located a piece of suspected crack cocaine, weighing approximately 5.41 or 5.5 grams.
Detective Gary May spoke with defendant on the day the search warrant was executed.
Defendant indicated that all the drugs were in the southeast bedroom of the house, along with the
firearm and money. Defendant also admitted that the drugs and weapon were hers. Defendant
affirmatively stated that she used marijuana, and that she also sold a small amount of marijuana
on the side. Regarding the firearm, defendant stated that it was not registered to her, and that it
was given to her by a friend for protection because she had previously been robbed.
Following laboratory analysis, it was determined that there were 1.01 grams of
marijuana, along with another unidentified amount of marijuana that was not analyzed.
Additionally, upon analysis, it was determined that there were 5.41 grams of cocaine.
Rafiki Laury testified that, on approximately March 7 or 8, 2002, defendant resided at
2702 South Jefferson with defendant’s child and the child’s father, Micah Washington.
Defendant moved in with Laury at one point because defendant was having problems with
Washington, and defendant could not get him to move out of the house. Defendant returned to
her home the night of March 7, 2002.
Defendant testified that she had a dispute with Washington in March 2002, and that she
attempted to evict him. Defendant began staying with Laury on March 5, 2002, and stayed with
her approximately three or four days. According to defendant, Washington2 used the right side
of the dresser. Defendant further testified that the money and firearm found in the dresser were
not hers. Defendant admitted that the marijuana found on the dresser was hers, and also admitted
that she smoked marijuana at the time the search warrant was executed. Defendant denied using
cocaine, and further denied that the cocaine was hers. Defendant then denied maintaining a drug
house, or that she or Washington sold drugs from her house. Defendant admitted that she
informed May of the location of the marijuana, but denied informing him that there were other
drugs and a firearm inside the dresser. Defendant testified that she did not know why there were
extra Ziploc bags, numerous sets of scales, and a razor blade in or on her dresser.
II. Analysis
A. Drug Profile Evidence
Defendant first argues that the trial court committed reversible plain error by permitting
Garabelli to testify regarding drug profile evidence. We disagree.
Defendant failed to raise a timely objection to Garabelli’s testimony at trial; therefore,
this issue has not been properly preserved for appellate review. MRE 103(a)(1); People v
Aldrich, 246 Mich App 101, 110, 113; 631 NW2d 67 (2001). An unpreserved issue is reviewed
2
However, no residency papers were located for Washington, defendant never mentioned
Washington at the time the search warrant was executed, and Garabelli testified that he did locate
any men’s clothing in the house or in the dresser.
-2-
for plain error. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). In order to
establish plain error and avoid forfeiture of an unpreserved issue, a defendant must show that (1)
an error occurred, (2) the error was plain, i.e., “clear or obvious,” and (3) the plain error affected
defendant’s substantial rights by prejudicing the outcome of the trial. Id. at 763.
Defendant contends that Garabelli, permitted to testify as an expert in the field of
packaging and delivering drugs, testified beyond the scope of his expertise. Defendant further
contends that, since she maintained her innocence at trial, there was a possibility that she would
not have been convicted if Garabelli had not testified that defendant was “guilty” of operating a
“typical drug house.”
In determining whether drug profile evidence should be admitted, a court should consider
the following factors:
First, the drug profile evidence must be offered as background or modus
operandi evidence, and not as substantive evidence of guilt, and the distinction
must be carefully maintained by the attorneys and the court. Second, something
more than drug profile evidence must be admitted to prove a defendant’s guilt;
multiple pieces of profile do not add up to guilt without something more. Third,
the trial court must make clear to the jury what is and is not an appropriate use of
the drug profile evidence by, e.g., instructing the jury that drug profile evidence is
properly used only as background or modus operandi evidence and should not be
used as substantive evidence of guilt. Fourth, the expert witness should not be
permitted to express an opinion that, on the basis of the profile, the defendant is
guilty, and should not expressly compare the defendant’s characteristics to the
profile in a way that implies that the defendant is guilty. [People v Williams, 240
Mich App 316, 320-321; 614 NW2d 647 (2000), citing People v Murray, 234
Mich App 46, 56-57; 593 NW2d 690 (1999).]
Much of the complained of testimony (regarding the purpose and significance of
reinforced doors, razor blades, and plastic bags near the drugs to the delivery of drugs) was not
within the knowledge of the average person, and was offered as background or modus operandi
evidence (relating to the issues of delivery and maintaining a drug house3) and not as substantive
evidence of guilt. However, Garabelli also testified that it was his expert opinion that
defendant’s residence was a “typical drug house.” Based on the Murray factors, Garabelli’s
opinion testimony that defendant’s residence was a drug house was improper.
Regardless of whether the admission of the evidence was erroneous, defendant has failed
to demonstrate that the admission of the evidence affected her substantial rights, e.g., prejudiced
the outcome of the trial. Carines, supra. Here, there was substantial other evidence supporting
3
The maintaining a drug house statute instructs, “A person . . . [s]hall not knowingly keep or
maintain a store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or
place, which is resorted to by persons using controlled substances in violation of this article for
the purpose of using these substances, or which is used for keeping or selling them in violation of
this article.” MCL 333.7405(d).
-3-
defendant’s convictions, including evidence that marijuana and cocaine were found in
defendant’s dresser, defendant’s admission to Garabelli and May that there were drugs on her
dresser, numerous items utilized for drug packaging and distributing found adjacent to the drugs,
and defendant’s admission at trial that the marijuana was hers. Accordingly, defendant has failed
to demonstrate a plain error affecting her substantial rights.
B. Field Test Evidence
Defendant also contends that she should be afforded a new trial because May was
improperly permitted to testify regarding the results of a chemical field test. We disagree.
Defendant properly preserved this issue by raising a timely objection to May’s testimony
therefore, this evidentiary issue is reviewed for an abuse of discretion. People v Hine, 467 Mich
242, 250; 650 NW2d 659 (2002).
At trial, May testified that field test kits are chemically activated by the presence of
narcotics, and that a field test was performed on some of the items found in defendant’s house,
which tested positive for the presence of marijuana and cocaine. Defendant contends that the
results of the field test were introduced to the jury without any evidence of the validity or
reliability of the test, or that the test was properly performed and that May was qualified to
administer the test.
Regardless of whether the trial court abused its discretion in admitting May’s testimony,
we find that any error would be harmless. A nonconstitutional error, even if preserved, is not
grounds for reversal unless it affirmatively appears more probable than not that it was outcome
determinative. People v Krueger, 466 Mich 50, 54; 643 NW2d 223 (2002); People v Lukity, 460
Mich 484, 495-496; 596 NW2d 607 (1999). Here, Sheila Smith, of the Michigan State Police
Forensic Laboratory, testified without objection (prior to May) as an expert witness in the field
of narcotics and dangerous drugs. Upon conducting several methods of analyses on the plant
material, “chunky” material, and “crystal” material submitted to Smith in connection with this
case, Smith affirmatively determined that the plant material was marijuana, that the “crystal”
material was cocaine, and that the “chunky” material was not a controlled substance. Since there
was ample expert testimony regarding the content of the substances retrieved from defendant’s
house aside from May’s testimony, reversal is unwarranted because the admission of the field
test testimony was not outcome determinative. Krueger, supra; Lukity, supra.
Affirmed.
/s/ Christopher M. Murray
/s/ Janet T. Neff
/s/ Pat M. Donofrio
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
