PEOPLE OF MI V AMER ELIAS ALBAKAL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 17, 2004
Plaintiff-Appellee,
v
No. 247349
Macomb Circuit Court
LC No. 01-001406-FH
AMER ELIAS ALBAKAL,
Defendant-Appellant.
Before: Griffin, P.J., and Cavanagh and Fort Hood, JJ.
PER CURIAM.
Defendant was convicted, following a jury trial, of possession of marijuana, MCL
333.7403(2)(d), and maintaining a drug house, MCL 333.7405(1)(d). He was sentenced to two
years’ probation.1 Defendant appeals as of right, and we affirm.
Prior to trial, defendant moved for specific performance of dismissal of the charges,
alleging that he entered into a cooperative agreement with the prosecutor’s office. Defendant
purportedly agreed to arrange one hundred pounds of marijuana sales in exchange for dismissal
of the charges. Defendant alleged that the money was to be provided by the Warren Police
Department and federal authorities. It was further asserted that there was no time frame for
performance, and complete performance became impossible when defendant’s cooperation with
authorities was revealed to individuals with whom defendant had arranged a purchase.
Defendant alleged that the individuals with whom he arranged drug transactions would not be
arrested. In support of the motion, the defense relied on the testimony of a retired prosecutor and
defense counsel both of whom addressed the terms of the agreement,2 the delay due to the death
of a Warren police detective, defendant’s cooperation, and the lack of fault attributed to the
defense when additional purchases did not occur.
1
Defendant was charged with the offense of possession with intent to deliver more than five, but
less than forty-five kilograms of marijuana. MCL 333.7401(2)(d)(ii). Defendant was convicted
of the lesser offense.
2
The defense asserted that the prosecution refused to reduce the agreement to writing and
indicated that they would act in good faith.
-1-
On the contrary, the prosecution asserted that the time frame for performance was not
infinite, and defendant’s arrest was publicized by members of his own family, thereby
compromising his informant status. Moreover, Warren Police Officer Robert McCauley testified
that defendant’s status with his sources was compromised by his excessive contacts with them.
Additionally, defendant was expressly advised that the police department could not allow the
funds utilized in the drug buys to remain on the streets. Therefore, the participants in the drug
sales would be arrested following the drug transactions. Officer McCauley testified that
defendant was advised of the limits of police department resources and knew that the sellers
involved in the drugs sales would be arrested. Officer McCauley opined that defendant stopped
contacting the department to continue to arrange drug transactions. After a two-day evidentiary
hearing, the lower court concluded that defendant failed to perform his part of the agreement,
and this failure could not be attributed to the prosecutor or police. It was concluded that
defendant was not given an unlimited time period to perform his portion of the agreement, and
the preliminary examination was delayed on seven occasions during a reasonable nine-month
period to allow defendant to complete the drug purchases.
At trial, police officers testified that a confidential informant made a controlled purchase
of $300 of marijuana at defendant’s residence on April 20, 2000. Additionally, police
surveillance of the home on April 20, 2000, revealed that several individuals drove to the home,
entered the home for a short period, and returned to their vehicles within a short period of time.
The next day, a search warrant was executed at the residence. During the search of the premises,
approximately eighteen pounds of marijuana was discovered. Additionally, police recovered
$19,721 in cash from the home. Officers opined, based on their training and experience that the
amount of marijuana and cash coupled with the surveillance from the day before indicated that
defendant was engaged in the sale of drugs not merely the personal use of marijuana. Although
defendant was not home at the time of the execution of the search warrant, there was evidence of
his possession and control of the premises based on the clothing, mail, and driver’s license found
in the home. Defendant was convicted of the lesser offense of possession of marijuana and
maintaining a drug house.
Defendant first alleges that the trial court erred in denying the motion to dismiss the
charges based on specific performance when defendant complied with the terms of the
cooperation agreement. We disagree. We review the trial court’s factual findings regarding the
existence and terms of a cooperation agreement under the clearly erroneous standard. People v
Hannold, 217 Mich App 382, 388; 551 NW2d 710 (1996). The application of strict contract
principles and theories peculiar to commercial transactions may not be appropriate in this
context. People v Jackson, 192 Mich App 10, 15; 480 NW2d 283 (1991). Rather, review is
based on the existence and terms of the agreement as well as whether the ends of justice are
served by enforcing the terms of the agreement. Id. A defendant does not have any entitlement
to specific performance of a cooperation agreement where he fails to meet the conditions
precedent to the bargained exchange. People v Walton, 176 Mich App 821, 825-826; 440 NW2d
114 (1989). The assessment of credibility, when presented by two diametrically opposed
versions of events, rests with the trier of fact. People v Lemmon, 456 Mich 625, 646; 576 NW2d
129 (1998). We will not interfere with the trier of fact’s role of determining the weight of the
evidence or the credibility of the witnesses. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d
748, amended 441 Mich 1201 (1992).
-2-
Under the circumstances of this case, we cannot conclude that the trial court’s denial of
the motion to dismiss based on specific performance of the cooperation agreement was clearly
erroneous. Hannold, supra. The cooperation agreement was never reduced to writing.
Therefore, the issue involved the submission of two diametrically opposed versions of events
that the trial court resolved in favor of the prosecution. Lemmon, supra. While the defense
asserted that his performance was not given a specific time frame and that his performance was
defeated through no fault of his own, the prosecution asserted that the agreement did not change
based on the prosecutor and police officer handling the matter at any given time.3 The trial court
implicitly rejected the testimony provided by the defense and found the testimony of the
prosecution witnesses to be credible. We cannot conclude that the findings were clearly
erroneous under the circumstances. Hannold, supra; Wolfe, supra.
Defendant next alleges that the evidence was insufficient to support the convictions. We
disagree. Our review of a challenge to the sufficiency of the evidence is de novo. People v
Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). When examining the sufficiency of the
evidence, we must view the evidence in the light most favorable to the prosecution to determine
whether a rational trier of fact could find that the essential elements of the crime were proven
beyond a reasonable doubt. People v Johnson, 460 Mich 720, 722-723; 597 NW2d 73 (1999).
With regard to the conviction for possession of marijuana, defendant contends that there
was insufficient evidence of possession to support the conviction where he was found with
“clean hands,” and there was no evidence of control over the marijuana. A person need not have
actual possession of a controlled substance to be convicted of a possession charge. Wolfe, supra.
Possession may be actual or constructive, and constructive possession exists when the totality of
the circumstances presents a sufficient nexus between a defendant and the contraband. Id. at
520-521. Constructive possession may be proven by circumstantial evidence and reasonable
inferences drawn from the evidence. People v Nunez, 242 Mich App 610, 615; 619 NW2d 550
(2000).
Viewing the evidence in the light most favorable to the prosecution, there was sufficient
circumstantial evidence and reasonable inferences from which the jury could conclude that
defendant possessed the marijuana found in the home. Johnson, supra. After the police received
information, a confidential informant made a controlled purchase from the home where
defendant resided. The next day, a large quantity of marijuana and cash were retrieved during
the execution of a search warrant. Evidence of defendant’s residence and use of the home was
established through the mail, his clothing, and his expired driver’s license. Although defendant
offered his wife and another associate as the source of the marijuana, the resolution of that
dispute was presented to and rejected by the jury. Lemmon, supra.
3
The handling of the case was allegedly hampered by the frequent change in prosecutors due to
death, retirement, and change of command of the drug unit. Additionally, the police contact also
varied due to a death, promotion, and change in handler.
-3-
Defendant also contends that the intent requirement to support the maintaining a drug
house conviction was not supported with sufficient evidence. Intent may be inferred from all of
the facts and circumstances. People v Hardrick, 258 Mich App 238, 246; 671 NW2d 548
(2003). Where there is credible evidence presented that both supports and negates the intent
requirement, a factual question exists that is left for resolution by the jury. People v Neal, 201
Mich App 650, 655; 506 NW2d 618 (1993). Because of the difficulty of proving a defendant’s
state of mind, minimal circumstantial evidence is sufficient. People v McRunels, 237 Mich App
168, 181; 603 NW2d 95 (1999). Viewing the evidence in the light most favorable to the
prosecution, Johnson, supra, we cannot conclude that the trier of fact’s factual determination
regarding the intent requirement was clearly erroneous.
Affirmed.
/s/ Richard Allen Griffin
/s/ Mark J. Cavanagh
/s/ Karen M. Fort Hood
-4-
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