PEOPLE OF MI V RONALD JACK VARNEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 17, 2004
Plaintiff-Appellee,
v
No. 247986
Oakland Circuit Court
LC No. 91-107235-FH
RONALD JACK VARNEY,
Defendant-Appellant.
Before: Cavanagh, P.J., and Jansen and Saad, JJ.
PER CURIAM.
A jury convicted defendant of possession with intent to deliver more than 50 but less that
225 grams of cocaine1 and of possession of a firearm during the commission of a felony
(“felony-firearm.”)2 The trial court sentenced defendant to eight to twenty years in prison for the
possession with intent to deliver cocaine conviction, and to two years in prison for the felonyfirearm conviction. Defendant appeals his convictions and sentences, and we affirm.
I. Intent
Despite Michigan law to the contrary, defendant argues that he was denied his
constitutional right to present a defense when the trial court instructed the jury that knowledge of
the amount of cocaine was not required to convict defendant of possession with intent to deliver
between 50 to 224 grams of cocaine.3 In People v Marion, 250 Mich App 446, 450-451; 647
NW2d 521 (2002), we held that knowledge of the amount of a controlled substance is not an
element of a possession with intent to deliver charge.
1
MCL 333.7401(2)(a)(iii)
2
MCL 750.227b
3
The elements of possession with intent to deliver more than 50, but less than 225 grams of
cocaine are: "(1) the defendant knowingly possessed a controlled substance; (2) the defendant
intended to deliver this substance to someone else; (3) the substance possessed was cocaine and
the defendant knew it was cocaine; and (4) the substance was in a mixture that weighed between
50 and 225 grams." People v Crawford, 458 Mich 376, 389; 582 NW2d 785 (1998).
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During deliberations, the jury asked the trial court whether defendant had to know the
amount of cocaine to be convicted of possession with intent to deliver between 50 to 224 grams
of cocaine, and the trial court properly answered no. Under Marion, the trial court properly
instructed the jury that defendant did not have to know that the mixture weighed between 50 to
224 grams. The trial court did not deny defendant his constitutional right to present his case
because the trial court correctly instructed the jury.4
II. Possession
Defendant maintains that there was insufficient evidence to show that he possessed
cocaine, and therefore, his conviction for possession with intent to deliver cocaine should be
reversed. When we review claims that the prosecution presented insufficient evidence to support
a conviction, we view the evidence presented in the light most favorable to the prosecution to
determine whether a rational fact-finder could have found that the essential elements of the crime
were proven beyond a reasonable doubt. People v Knowles, 256 Mich App 53, 58; 662 NW2d
824 (2003), citing People v Hunter, 466 Mich 1, 6; 643 NW2d 218 (2002).
Constructive possession exists when the totality of the circumstances indicates a
sufficient nexus between the defendant and the contraband. Id. at 521. Evidence that defendant
had the right to exercise control over the narcotics and knew that they were present is sufficient
to establish constructive possession. Id. at 520. Likewise, possession may be found even when
the defendant is not the owner of the recovered narcotics. Id. at 520-521. Moreover, possession
may be joint, with more than one person actually or constructively possessing the controlled
substance. Id. at 520.
We conclude that there is a sufficient nexus between defendant and the contraband to
support the inference that defendant had control over it and knew that it was present. Here,
although there was no direct evidence that defendant actually possessed the cocaine, the evidence
showed that he had the right to exercise control over the cocaine, and that he knew the cocaine
was in the house. Defendant resided at the house and was present when the warrant was
executed. Defendant’s parents owned the house in which the cocaine was found. Moreover,
defendant’s driver’s license was in the same safe as the cocaine, and the safe was in the master
bedroom, which also contained men’s clothing and pictures that belonged to defendant. Police
found $1,000 inside a man’s duffle bag on the dresser in the master bedroom, and paperwork in
the kitchen that showed that defendant’s friend Robert Tripp, a known drug dealer, had wired
defendant $1,000. A reasonable jury could infer that a narcotics sale had recently taken place.
Packaging materials and materials used to mix, cut, and weigh narcotics were found throughout
the upper floor of the house. Therefore, we hold that a rational jury could have found beyond a
4
Defendant also erroneously asserts that this Court, in a prior appeal, erred when it reversed the
trial court's order that granted defendant's motion for a new trial on the basis that the law requires
knowledge of the amount of cocaine in order to be convicted of possession with intent to deliver
between 50 to 224 grams of cocaine. A question of law decided by an appellate court will not
be decided differently on a subsequent appeal in the same case where the facts, as here, remain
materially the same. People v Ham-Ying, 178 Mich App 601, 606; 444 NW2d 529 (1989).
Moreover, as stated above, People v Marion controls and disposes of defendant's claim of error.
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reasonable doubt that defendant had the right to exercise control of the narcotics, and that he
knew they were present in the house.5
III. Felony Firearm
Defendant asserts that there was insufficient evidence to support his felony-firearm
conviction. To support a felony-firearm conviction, the prosecution must prove that the
defendant possessed a firearm during the commission of, or the attempt to commit, a felony.
People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999), citing People v Davis, 216
Mich App 47, 53; 549 NW2d 1 (1996); MCL 750.227b. As with the question of possession of
drugs, possession of a firearm may be actual or constructive and may be proved by
circumstantial evidence. People v Burgenmeyer, 461 Mich 431, 437; 606 NW2d 645 (2000),
citing People v Hill, 433 Mich 464, 469-471; 446 NW2d 140 (1989). A defendant may have
constructive possession of a firearm if its location is known to the defendant and if it is
reasonably accessible to him at the time of the commission of the felony. Burgenmeyer, supra at
438. “A drug possession offense can take place over an extended period, during which an
offender is variously in proximity to the firearm and at a distance from it.” Id. at 439.
Here, the evidence is sufficient to show that defendant had constructive possession of a
firearm during the commission of a felony. A loaded rifle and a box of ammunition were located
under defendant’s bed. Police found approximately 120 grams of cocaine, together with scales
and packaging materials, in defendant’s bedroom closet. Defendant was in the living room at the
time the warrant was executed, but one need not be in close proximity to the firearm at the time.
The prosecution need only show that defendant knew of the firearm and had access to it at any
point during the offense. Because drug possession offenses can take place over a period of time
and because both the firearm and the cocaine were found in defendant’s bedroom, a rational jury
could conclude, based on the evidence, that defendant knew of the rifle and had access to it
during the commission of the offense.
Additionally, a loaded firearm was located in a kitchen drawer. Though defendant’s
friend testified that the firearm belonged to him, and that he left it there over the holiday, the jury
could have chosen not to believe the testimony. Regardless of whether the jury believed the
testimony, ownership is not an element of felony-firearm. So long as defendant had possession,
actual or constructive, of the firearm during the commission of a felony, he can be convicted of
felony-firearm. Because defendant resided at the house in question, it is reasonable to assume
that he had access to the kitchen drawers. Because there was testimony that the gun was left at
defendant’s house for an extended period of time, a reasonable jury could conclude that
defendant knew of the gun and had access to it during the commission of the offense.
5
Evidence showed that Tripp may have resided at defendant's house, and that he was involved in
narcotics trafficking. Defendant also claimed that the cocaine belonged to Tripp. However,
possession may be found even when the defendant is not the owner of the recovered narcotics.
Wolfe, supra at 520-521. Moreover, possession may be joint, with more than one person actually
or constructively possessing the controlled substance. Id. at 520. Therefore, were it true that
Tripp was the "true owner" of the cocaine, there was nevertheless sufficient evidence to show
that defendant had the right to exercise control over the narcotics.
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IV. Aiding and Abetting
Defendant says that the trial court erroneously instructed the jury regarding aiding and
abetting felony-firearm. However, defendant waived his right to appellate review on this issue
by stipulating to the aiding and abetting instruction and by approving of the jury instructions in
the lower court. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). Defendant’s
waiver “extinguished” any error, and we are precluded from reviewing this issue. Id. at 215-216.
V. Sentencing
Defendant claims that the trial court erred in failing to sentence defendant pursuant to the
amended narcotics sentencing statutes. On March 3, 2003, the court sentenced defendant to
eight to twenty years in prison for possession with intent to deliver more than 50 but less that 225
grams of cocaine under MCL 333.7401(2)(a)(iii). This statute requires a mandatory minimum
sentence of not less than ten years, nor more than twenty years. On March 1, 2003, before
defendant’s sentencing, but after his conviction, an amendment that eliminated the mandatory
minimum became effective. Defendant now argues that the amendment should apply to his case
because it was in effect before he was sentenced.
Whether a statute should be applied retroactively is a legal issue that is reviewed de novo.
People v Thomas, 260 Mich App 450, 458; 678 NW2d 631 (2004). The court is generally
required to impose a sentence “within the appropriate sentence range under the version of those
sentencing guidelines in effect on the date the crime was committed.” MCL 769.34(2) (emphasis
added). Furthermore, this Court, in Thomas, supra, 260 Mich App at 459, held that the amended
sentencing provisions of MCL 333.7401(2)(a)(iii) do not apply retroactively. The Thomas Court
reasoned that the Legislature declined to specifically apply the amendments retroactively and
instead provided early parole eligibility to such defendants. Id. Here, defendant was properly
sentenced under the version of MCL 333.7401(2)(a)(iii) in effect at the time he committed the
offense in accordance with MCL 769.34(2)6.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Kathleen Jansen
/s/ Henry William Saad
6
Defendant also claims erroneously that the trial court's downward departure was insufficient.
Defendant was sentenced to eight to twenty years in prison for possession with intent to deliver
between 50 to 224 grams of cocaine. The trial court sentenced defendant below the mandatory
minimum, which was ten to twenty years in prison, and gave substantial and compelling reasons
for its departure, as required by MCL 333.7401(4). On appeal, defendant erroneously claims that
the trial court erred in failing to further depart from the mandatory minimum. Defendant has
waived this issue and moreover, the trial court properly departed downward and no further
downward departure is warranted.
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