PEOPLE OF MI V ALEEM AKRAM
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 20, 2007
Plaintiff-Appellee,
v
No. 267730
Wayne Circuit Court
LC No. 05-003404-02
AMEER AKRAM,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 267731
Wayne Circuit Court
LC No. 05-003404-03
ALEEM AKRAM,
Defendant-Appellant.
Before: White, P.J., and Zahra and Fort Hood, JJ.
PER CURIAM.
In Docket Nos. 267730 and 267731, defendants, Ameer Akram and Aleem Akram,
appeal as of right their bench trial convictions of possession with intent to deliver less than 50
grams of cocaine, MCL 333.7401(2)(a)(iv), possession with intent to deliver less than 50 grams
of heroin, MCL 333.7401(2)(a)(iv), and possession with intent to deliver marijuana, MCL
333.7401(2)(d)(iii). Each defendant was sentenced to a total of three years’ probation. In both
cases, we affirm.
Detroit police received numerous complaints of shootings, the sale of narcotics, and
loitering in the area of 1927 Highland Street. As a result of the complaints, Officer McKinney
established surveillance of the area on January 12, 2005, at approximately 8:30 p.m. Officer
McKinney acknowledged that it was dark at the time of her surveillance, but asserted that the
available lighting from within the building itself and the street lighting allowed her to observe
three individuals in front of that address. The building observed was a four-unit apartment in a
residential area. Officer McKinney was watching the scene from approximately sixty feet away
and, although she had binoculars with her, she did not need them to view the actions of
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defendants. Officer McKinney testified that she saw defendants in front of the apartment
building engage in palm-to-palm narcotic transactions with individuals who approached them.
However, her opinion regarding narcotic transactions was based on lengthy experience in the
narcotics division. Specifically, she saw individuals provide currency to defendants, defendants
entered the building and proceeded to the upper left apartment, and defendants returned to the
front of the building and passed something back to the alleged buyer. Officer McKinney was
unable to see the actual transfer of drugs back to the purported buyer by defendants.
Officer McKinney alerted the arrest team to move in after observing each defendant
engage in a purported drug transaction. Officer Stephen Jackson, a member of the narcotics
team, exited the van and observed defendant Aleem Akram drop a key and two packets of
marijuana to the ground. The officer found that the key fit a silver padlock from the security
grate of the upstairs unit in the apartment building. Another packet containing marijuana was
found on defendant Aleem’s person. There was $36 in currency also found on defendant Aleem.
However, there were no drugs or currency found on defendant Ameer Akram.
Police proceeded to investigate the upstairs apartment unit where defendants were
observed after they received currency. Police did not need to break open the door to the
apartment when they arrived because the door was open. Packets containing heroin, cocaine,
and marijuana were found on a table and a television in the apartment. It was opined that the
drugs, in ziplock bags, were packaged for sale and would net approximately $8 to $10 per bag
depending on the drug for sale. There was a shotgun located between six and eight feet from the
drugs.
The defense called one witness, a retired detective sergeant who visited the scene of the
alleged drug transactions. His testimony attacked the credibility of Officer McKinney when he
opined that there was never a light in the area in question and the actions that she viewed were
not visible from her location because of the limited lighting and the angle of her observations.
At the conclusion of the bench trial, the court ruled as follows:
Now, I don’t think that this particular building was picked at random. It
seems that there had been complaints and they organized a crew to go out and do
a raid. And Officer McKinney and her testimony as an 18-year veteran of the
Police Department, with nine years, having seen hundreds, as she said, of
transactions.
So I would have to infer by the Defense argument that Officer McKinney
and a crew of veteran officers randomly decided to frame these three gentlemen,
to come in here and lie on them, and that – not only that, but they took the dope
out there with them and left it at the apartment.
Now, that is what I’m supposed to assume, but since I wasn’t born last
night, I can’t make that kind of finding.
As a matter of fact, I even said while [Officer McKinney] was testifying,
if this case depended on her testimony, I would have – I would have rendered a
directed verdict at that time. She never saw anybody selling dope to anybody.
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She said she saw someone hand somebody some currency, someone go
into an apartment and come back and hand something to someone.
They didn’t stop the buyer because they weren’t interested in the buyer.
They were interested in the seller.
She then gave information to the officers who went inside. And these
officers’ testimony has been completely ignored. Officer McKinney didn’t find
anything. She didn’t take any money from anybody. She never testified about a
gun. All she did was transfer some information to some officers, who made the
raid.
Now suppose Officer McKinney had not been involved in this situation at
all, she hadn’t even come in here and testified, and those other officers had gone
into this place and arrested someone. Even taking her testimony out of it
completely, they found stuff in the apartment. They had a right to be there.
The testimony was that this is an abandoned building, that no one live
there. [Defense counsel] even argued that they were there to buy something,
which indicates that they had no right to be there. They never said they had a
right to be there; therefore, they had no right of privacy in that apartment.
The officers were inside, they found narcotics. The testimony was that it
was packaged in such a way to indicate that they were packaged for sale.
Now, sale, intent can be determined by circumstantial evidence. You take
the amount of dope that was in there and the way it was packaged. It can be
inferred from that evidence that this was packaged for possession with intent to
deliver.
Now, the fact that all three of these gentlemen were in there, aiding and
abetting each other, in the packaging and the distribution of dope indicates that
they were all involved in it; in for a penny, in for a pound.
So, according to the officer’s testimony, which – which is being attacked,
that she saw three people doing this, I’m stating in my opinion that that doesn’t
make any difference. All three of them were in there. And I know that people
who run dope houses don’t have company over to act as disinterested witnesses.
This apartment was the one that was vacant. I don’t care about that other
one next door. There was no one living in this, because according to the officer’s
testimony, it was unfurnished, it was smelly in there, it was – there was no
furniture. And I know from my experience that this kind of place is used for the
sale of narcotics.
So from the – totally ignoring what Officer McKinney said, and I accept
her testimony, the other officers found it, they found dope, they found packages,
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they found money, they found a key and they found a lock that – the key that fit
the lock. They found all of that. That’s not in dispute.
Now, the Defendants can all be found guilty of aiding and abetting in the
possession for distribution of cocaine and heroin.
However, you – it has not been fully established who was in possession of
the firearm. You cannot aid and abet in a possession of a felony firearm; there
has to be definitely one person who was in possession.
Or if there are three people, you have to show that all three in possession,
but can’t establish that by aiding and abetting.
And so far no one has been seen to have been in possession. I can’t infer
one or the other.
On appeal, defendants argue that there was insufficient evidence to convict them of the
crimes charged. However, both defendants contest the sufficiency of the evidence only with
regard to the possession element of each crime.
When reviewing a claim of insufficient evidence, this Court reviews the record de novo.
See People v Mayhew, 236 Mich App 112, 124; 600 NW2d 370 (1999). In determining whether
the prosecution has presented sufficient evidence to sustain a conviction, this Court must view
the evidence in a light most favorable to the prosecution and determine whether any rational trier
of fact could have found that the essential elements of the crime were proved beyond a
reasonable doubt. People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999). In a bench trial,
the credibility of the witnesses presents an issue for the trier of fact, and we do not resolve the
issue anew. People v Daniels, 172 Mich App 374, 378; 431 NW2d 846 (1988). However, when
we review the trial court’s factual findings, we determine whether the trial court correctly
applied the facts to the law. Id.
To convict a defendant of possession with intent to deliver a controlled substance, the
prosecution must prove: (1) that the substance was a narcotic, (2) the weight of the substance,
(3) that the defendant was not authorized to possess the substance, and (4) that the defendant
knowingly possessed the substance intending to deliver it. People v McGhee, 268 Mich App
600, 622; 709 NW2d 595 (2005); MCL 333.7401(2)(a)(iv). Again, the only challenge to the
elements of the convicted offenses is the possession requirement.
Possession of narcotics may be actual or constructive, joint or exclusive. People v
Meshell, 265 Mich App 616, 622; 696 NW2d 754 (2005). Constructive possession exists when
the totality of the circumstances indicates a sufficient nexus between the defendant and the
controlled substance. Id. A person’s presence at a location where drugs are found is alone
insufficient to prove that he constructively possessed the drugs. People v Echavarria, 233 Mich
App 356, 370; 592 NW2d 737 (1999). Instead, some additional connection between the
defendant and the contraband must be shown. Id. Proof of possession of a controlled substance
requires a showing of dominion or right of control over the drug with knowledge of its presence
and character. Meshell, supra at 621.
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In People v Wolfe, 440 Mich 508, 511-512; 489 NW2d 748, amended 441 Mich 1201
(1992), the defendant was arrested after an undercover officer made a controlled purchase of
crack cocaine at a second floor apartment. When a search warrant was executed on the premises,
six individuals were found with cocaine packaged for individual sale and a shotgun. The
apartment contained only a couch, refrigerator, and a broken television. There was no
functioning toilet, but the bathtub was filled with excrement. The defendant was arrested with
$265 in cash including the marked funds used in the undercover purchase. The defendant also
had a beeper and a key to the back door of the apartment.
The defendant testified that he was merely entertaining friends at the apartment, but he
was nonetheless convicted of possession with intent to deliver less than fifty grams of cocaine.
His challenge to the sufficiency of the evidence to support his conviction was rejected by the
Supreme Court:
A person need not have actual physical possession of a controlled
substance to be guilty of possessing it. Possession may be either actual or
constructive. Likewise, possession may be found even when the defendant is not
the owner of recovered narcotics. Moreover, possession may be joint, with more
than one person actually or constructively possessing a controlled substance.
In this case, there was no direct evidence that defendant Wolfe actually
possessed the cocaine. Rather, the evidence produced at trial showed that he
constructively possessed the cocaine, i.e., that he “had the right to exercise control
of the cocaine and knew that it was present.” The courts have frequently
addressed the concept of constructive possession and the link between a defendant
and narcotics that must be shown to establish constructive possession. It is well
established that a person’s presence, by itself, at a location where drugs are found
is insufficient to prove constructive possession. Instead, some additional
connection between the defendant and the contraband must be shown.
Any one of various factors may be sufficient under given circumstances to
establish this connection. For example, constructive possession of cocaine was
shown … where, in addition to the defendant’s presence at the location where the
cocaine was found, traces of cocaine were discovered on shirts stored in his
pickup truck. … [C]onstructive possession was shown where the defendant was
found in a sparsely furnished apartment that contained cocaine packets and large
sums of money lying about in plain view. … [C]onstructive possession of cocaine
was established when the defendant drove a codefendant to a location where
cocaine was being processed and then remained at that location despite the
obvious and nauseating smell of ether, which is an integral component in the
processing of cocaine. As these cases suggest, constructive possession exists
when the totality of the circumstances indicates a sufficient nexus between the
defendant and the contraband. [Wolfe, supra at 520-521 (citations omitted).]
The Wolfe Court upheld the conviction of defendant for possession with intent to deliver less
than fifty grams of cocaine even though the case was circumstantial, concluding that
“[p]ossession with intent to deliver can be established by circumstantial evidence and reasonable
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inferences arising from that evidence, just as it can be established by direct evidence.” Id. at
526.
Viewing the evidence in the light most favorable to the prosecution, both Ameer and
Aleem were seen conducting suspected drug transactions outside an apartment building. At
different times, each was approached by a suspected buyer while standing outside of the
building, and, after a brief conversation, was seen entering the building, going into the same
apartment on the second floor, and returning with suspected narcotics. Police later raided the
sparsely furnished apartment and found marijuana, heroin, and cocaine. Case law provides that
possession may be found even if the defendant is not the owner of the recovered narcotics and
possession may be joint. Wolfe, supra. Consequently, the fact that defendants were not found in
the room with the drugs does not hinder the sufficiency of the proofs with regard to the
possession requirement.
Accordingly, the trial court properly convicted defendant Aleem Akram in light of the
proofs that established that he dropped packets of drugs when police pulled up in front of the
building to arrest the men, had a packet of drugs on his person, and had a key to the upstairs
residence where more drugs were discovered and packaged for sale even though it was open at
the time of the raid.
We note that the conviction with regard to defendant Ameer Akram presents a different
question where he was not apprehended with any drugs or cash on his person. Therefore, the
only evidence against this defendant was the testimony of Officer McKinney wherein she opined
based on her observations and experience, that he was engaging in hand to hand narcotics
transactions. However, his conviction was premised on an aiding and abetting theory. An aider
and abettor may be convicted and punished as if he directly committed the offense. MCL
767.39; People v Mass, 464 Mich 615, 628; 628 NW2d 540 (2001). A conviction of aiding and
abetting may be established when the prosecutor proves: (1) the crime charged was committed
by the defendant or another person; (2) the defendant performed the acts or gave encouragement
that assisted the commission of the crime; and (3) the defendant intended the commission of the
crime or had knowledge that the principal intended its commission at the time aid and
encouragement was given. People v Moore, 470 Mich 56, 67-68; 679 NW2d 41 (2004).
Defendant Ameer does not dispute the elements to support a conviction based on an aiding and
abetting theory.1
Affirmed.
/s/ Helene N. White
/s/ Brian K. Zahra
/s/ Karen M. Fort Hood
1
Reliance on the decision in People v Lewis, 178 Mich App 464; 444 NW2d 194 (1989), is
misplaced because it is not binding precedent where it was decided prior to 1990. MCR
7.215(J)(1).
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