PEOPLE OF MI V CHRISTIAN ELLIS JOHNSON
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 13, 2007
Plaintiff-Appellee,
v
No. 271410
Saginaw Circuit Court
LC No. 05-026914-FH
CHRISTIAN ELLIS JOHNSON,
Defendant-Appellant.
Before: Talbot, P.J., and Fitzgerald and Kelly, JJ.
PER CURIAM.
A jury convicted defendant of possession with intent to deliver less than 50 grams of
cocaine, MCL 333.7401(2)(a)(iv), maintaining a drug house, MCL 333.7405(1)(d), and resisting
or obstructing a police officer, MCL 750.81d(1). The trial court sentenced defendant as an
habitual offender, third offense, MCL 769.11, to concurrent prison terms of 85 months to 40
years for the possession with intent to deliver cocaine conviction and 32 to 48 months for the
maintaining a drug house and resisting or obstructing convictions. Defendant appeals as of right.
We affirm.
I
On November 22, 2005, Saginaw police officers conducted a surveillance investigation
after receiving complaints that drugs were being sold out of an apartment. A vehicle occupied
by two individuals stopped outside the apartment. One occupant entered the apartment, returned
to the vehicle, and drove off. Police officers found a crack cocaine rock in the vehicle after
stopping it for traffic violations. Saginaw Police Sergeant Kevin Revard used information
provided by the occupants of the vehicle to obtain a search warrant for the apartment. The police
executed the warrant during the early morning hours of November 23, 2005. Defendant was in a
common area of the building when the police announced the warrant. He was shot with a Taser
gun after stepping back and turning toward the apartment, but managed to run to the apartment
before he fell down. The police found another individual, Estelita Pham, in the southwest
bedroom of the apartment.
The police seized crack cocaine from defendant’s shirt pocket. Defendant also possessed
a key that fit a lock on a toolbox that contained various amounts of crack cocaine packaged in
paper. The toolbox was located near a scale in the southwest bedroom. Mail addressed to
defendant was found in the apartment.
-1-
II
Defendant first argues that the evidence was insufficient to support his conviction for
resisting or obstructing a police officer. We disagree. “[W]hen determining whether sufficient
evidence has been presented to sustain a conviction, a 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 proven beyond a reasonable doubt.” People v
Wolfe, 440 Mich 508; 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). MCL
750.81d(1) provides that “an individual who assaults, batters, wounds, resists, obstructs, opposes,
or endangers a person who the individual knows or has reason to know is performing his or her
duties is guilty of a felony.” See also People v Ventura, 262 Mich App 370, 374-376; 686
NW2d 748 (2004). The word “obstruct” includes “the use or threatened use of physical
interference or force or a knowing failure to comply with a lawful command.” MCL
750.81d(7)(a).
The testimony at trial indicated that the police officers who had the initial contact with
defendant wore black shirts and baseball hats with the word “police” written in large white
letters on the shirts and hats. Officer Ryan Oberle yelled “stop, police, search warrant.” Rather
than stop, defendant turned in the direction of the apartment. According to Sergeant Revard,
defendant “backed up quickly a couple of steps and then started to turn away.” Both police
officers indicated that, even after being shot with the Taser gun, defendant continued toward the
apartment. He subsequently fell down and was taken into custody.
Viewed in a light most favorable to the prosecution, the evidence was sufficient for the
jury to conclude beyond a reasonable doubt that defendant failed to comply with Officer
Oberle’s lawful command. The evidence was therefore sufficient to support defendant’s
conviction of the charged offense. Because the resisting or obstructing conviction was supported
by sufficient evidence, we reject defendant’s request for resentencing predicated on the use of
the conviction to score prior record variable 7, MCL 777.57, of the sentencing guidelines for the
possession with intent to deliver cocaine conviction.
III
Defendant argues that the prosecutor engaged in misconduct by interjecting the issue of
race during his direct examination of Detective Mark Walker. Because defendant did not object
to the prosecutor’s questioning of Detective Walker, we consider defendant’s claim under the
plain error doctrine in People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
Defendant has not established a plain error. The test of prosecutorial misconduct is
whether a defendant was denied a fair and impartial trial. People v Dobek, 274 Mich App 58,
63; 732 NW2d 546 (2007). The right to a fair trial can be jeopardized if a prosecutor interjects
issues broader than the defendant’s guilt or innocence. Id. at 63-64. The injection of racial
remarks is improper because it may arouse the jurors’ prejudice against a defendant and, thus,
lead to a decision based on prejudice rather than guilt or innocence. People v Bahoda, 448 Mich
261, 266; 531 NW2d 659 (1995); see also People v Cooper, 236 Mich App 643, 651; 601 NW2d
409 (1999). But “[i]issues of prosecutorial misconduct are decided case by case, and this Court
must examine the entire record and evaluate a prosecutor’s remarks in context.” Dobek, supra at
64. Further, “[a] prosecutor’s good-faith effort to admit evidence does not constitute
-2-
misconduct.” Id. at 70. A prosecutor is entitled to attempt to introduce evidence that he or she
legitimately believes will be accepted by the court so long as the attempt does not prejudice the
defendant. People v Noble, 238 Mich App 647, 660-661; 608 NW2d 123 (1999).
Detective Walker testified as an expert witness in the area of packaging and trafficking of
narcotics. Such testimony is permitted in drug cases to aid the jury in understanding the
evidence. People v Murray, 234 Mich App 46, 53; 593 NW2d 690 (1999). Examined in this
context, we find no basis for concluding that the prosecutor made a bad-faith effort to admit
evidence by asking Detective Walker to explain the differences between $10 and $20 rocks of
crack cocaine. Detective Walker merely responded to the prosecutor’s question by testifying that
the price can be affected by differences in race between the buyer and seller or the buyer’s
neighbor. There is no indication that the prosecutor or Detective Walker attempted to appeal to
racial sentiments, if any, that jurors might have for the purpose of obtaining a conviction.
Defendant has failed to establish a plain error.
Furthermore, the trial court instructed the jury before deliberations that “you must not let
sympathy or prejudice influence your decision.” Even if there was plain error, the instruction
was sufficient to dispel any prejudice. People v Watson, 245 Mich App 572, 591-592; 629
NW2d 411 (2001); see also People v Abrahams, 256 Mich App 265, 279; 662 NW2d 836 (2003)
(jurors are presumed to follow their instructions and instructions presumably cure most errors).
IV
Defendant contends that the trial court erred by denying defendant’s motion for a new
trial or Ginther1 hearing with respect to his claim of ineffective assistance of counsel. In general,
we review a trial court’s denial of a motion for a new trial for an abuse of discretion. People v
Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). The trial court may order a new trial on any
ground that supports appellate reversal of the conviction, or because it believes that the verdict
resulted in a miscarriage of justice. MCR 6.431(B).
A claim of ineffective assistance of counsel presents a mixed question of fact and
constitutional law. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). We
review the trial court’s factual findings for clear error and its constitutional determination de
novo. Id. “To prove that counsel has been ineffective, defendant must show that his counsel’s
performance was deficient, and that there is a reasonable probability that but for that deficient
performance, the result of the trial would have been different.” Id. at 57-58. A Ginther hearing
is appropriate when the defendant’s claim of ineffective assistance of counsel depends on facts
not of record. People v Ginther, 390 Mich 436, 442-443; 212 NW2d 922 (1973). The trial court
should take testimony if there is a factual dispute. Id. at 442. In general, it is incumbent on a
defendant seeking an evidentiary hearing to show where further elicitation of facts would
advance his or her position. See People McMillan, 213 Mich App 134, 142; 539 NW2d 553
(1995).
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
-3-
Here, defendant has not established any error in the trial court’s decision to resolve his
ineffective assistance of counsel claim without conducting a Ginther hearing. The trial court
considered the undisputed evidence that the fax transmission date imprinted on the search
warrant and supporting affidavit prepared by Sergeant Revard was November 21, 2005.
Although defense counsel suggested at the hearing regarding his motion for a new trial that the
“relevant person” from the judge’s chambers or prosecutor’s office could be called as a witness
to provide testimony regarding whether the fax machine was working properly, defense counsel
neither identified any potential witness who could advance his position, nor established the
materiality of the fax transmission date to the validity of the search warrant.
Further, upon de novo review, defendant has not established that he was denied the
ineffective assistance of counsel. Because the trial court did not conduct a Ginther hearing,
review is limited to the facts of record. People v Wilson, 242 Mich App 350, 352; 619 NW2d
413 (2000). It is apparent from the record that defendant’s proposed use of the imprinted fax
transmission date to challenge the probable cause for the search warrant would have been futile.
To pass constitutional muster, there must be a substantial basis for the magistrate’s
conclusion that a fair probability exists that contraband or evidence will be found in a particular
place. People v Russo, 439 Mich 584, 604; 487 NW2d 698 (1992); see also People v Keller, 479
Mich 467; ___ NW2d ___ (2007), slip op pp 8-9. Pursuant to MCL 780.653(1), a magistrate
determines if there is probable cause for a search warrant based on the facts related within the
affidavit. MCL 780.653. Evidence of a facsimile transmission becomes relevant when the
magistrate issues the search warrant, although “hypertechnical” violations of the statutory
procedures do not affect the validity of the warrant. See People v Barkley, 225 Mich App 539,
542; 571 NW2d 561 (1997); see also MCL 780.651(3) (upon finding probable cause for the
search warrant, a magistrate may issue it by an electronic or electromagnetic means of
communication, including a facsimile transmission); MCL 780.651(4) (“peace officer or
department receiving an electronically or electromagnetically issued search warrant shall receive
proof that the issuing judge or district court magistrate has signed the warrant before the warrant
is executed. . . .”).
Here, the magistrate signed the search warrant and Sergeant Revard’s supporting affidavit
with a handwritten date of November 22, 2005. The contents of Sergeant Revard’s affidavit
similarly indicate that it was based on events that occurred on November 22, 2005. Looking to
the facts provided to the magistrate within the affidavit, defendant has not presented any basis for
contesting the magistrate’s finding of probable cause.
We find no merit to defendant’s argument that defense counsel should have argued that
the magistrate somehow approved the search warrant a full day before the occurrence of the
events on which the search warrant was based. Any challenge to the accuracy of the magistrate’s
handwritten date of approval would have been meaningless unless accompanied by a challenge
to the accuracy of the information in the affidavit on which it was based. A defendant claiming
that a search warrant was based on false information must show that the affiant knowingly and
intentionally, or with reckless disregard for the truth, made a false statement or omission that was
necessary to the finding of probable cause. People v Martin, 271 Mich App 280, 311; 721
NW2d 815 (2006).
-4-
Because defendant offered no evidence that Sergeant Revard’s affidavit was based on
false information, it would have been futile for defense counsel to challenge the validity of the
search warrant. The circumstances of this case indicate nothing more than that the fax machine
was misadjusted relative to the date in question. Defense counsel is not required to make a
meritless motion. People v Ish, 252 Mich App 115, 118-119; 652 NW2d 257 (2002). Therefore,
defendant’s claim of ineffective assistance of counsel on this ground is without merit.
V
Finally, defendant challenges the scoring of three offense variables, OV 14, OV 15, and
OV 19, used by the trial court to determine the sentencing guidelines range for the possession
with intent to deliver cocaine conviction. Defendant argues that he is entitled to resentencing if
any one of challenges succeed because any error will reduce the applicable sentencing guidelines
range.
We review de novo issues involving the interpretation of the sentencing guidelines.
People v Endres, 269 Mich App 414, 417; 711 NW2d 398 (2006). But a trial court has
discretion in determining the points to be scored for offense variables. People v Hornsby, 251
Mich App 462, 468; 650 NW2d 700 (2002). “Scoring decisions for which there is any evidence
in support will be upheld.” Endres, supra at 417.
MCL 777.44(1)(a) provides that OV 14 is scored at ten points if the “offender was a
leader in a multiple offender situation.” The entire criminal transaction may be considered in
scoring this variable. MCL 777.44(2)(a). The trial court scored ten points for OV 14 based on
the prosecutor’s assertion that defendant’s girlfriend, Pham, was also charged with maintaining
the apartment as a drug house. The presentence report indicates that Pham was dating defendant
and temporarily living with him at the time the search warrant was executed. Defendant
admitted that he was dealing in drugs, and the information in the presentence report regarding the
basis for the search warrant indicates that defendant was the individual who sold drugs out of the
apartment. The trial testimony indicates that Pham was found in the bedroom where the scale
and toolbox containing the cocaine were found. Similar testimony was presented at defendant’s
preliminary examination, where Pham waived her right to a preliminary examination.
Considering the evidence that illegal drug dealing was being conducted out of the
apartment that Pham temporarily shared with defendant, we conclude that there was evidence to
support the trial court’s determination that this was a multiple offender situation. Because the
entire transaction should be considered, it was not necessary that Pham be implicated in
possessing the particular cocaine underlying defendant’s drug conviction. In the context of a
claim that a person was implicated in knowingly maintaining the place to sell the illegal drugs,
the focus is on whether there exists some degree of continuity in doing so. See People v
Thompson, 477 Mich 146; 730 NW2d 708 (2007) (construing the elements of MCL
333.7405(1)(d)). Further, the evidence that defendant dealt directly with purchasers supports the
trial court’s determination that defendant had a leadership role in the situation. Therefore, we
uphold the trial court’s score of ten points for OV 14.
Next, with respect to OV 15, MCL 777.45(1)(g) provides for a score of five points where
-5-
[t]he offense involved the delivery or possession with intent to deliver marihuana
or any other controlled substance or a counterfeit controlled substance or
possession of controlled substances or counterfeit controlled substances having a
value or under such circumstances as to indicate trafficking.
“Trafficking” is statutorily defined as “the sale or delivery of controlled substances or
counterfeit controlled substances on a continuing basis to 1 or more other individuals for further
distribution.” MCL 777.45(2)(c). The record does not support defendant’s claim on appeal that
the trial court misunderstood how to apply this variable. In response to defense counsel’s
objection at sentencing that there must be evidence of “further distribution” or wholesale
activity, the trial court ruled that a score of five points was appropriate because defendant
admitted that he was dealing in drugs.
A court’s fundamental obligation in construing a statute is to ascertain the legislative
intent that may be reasonably inferred from the words expressed in the statute. Thompson, supra
at 151. A statute is ambiguous if it irreconcilability conflicts with another provision or is equally
susceptible to more than a single meaning. Mayor of Lansing v Pub Service Comm, 470 Mich
154, 166; 680 NW2d 840 (2004). “If the statute is unambiguous, it must be enforced as written.”
Title Office, Inc v Van Buren Co Treasurer, 469 Mich 516; 676 NW2d 207 (2004). A court must
give effect to every word, phrase, and clause in a statute, and avoid an interpretation that renders
any part of the statute surplasage or nugatory. People v Perkins, 473 Mich 626, 638; 703 NW2d
448 (2005). Both the plain meaning of a critical word and phrase and its placement and purpose
in the statutory scheme are considered. Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596
NW2d 119 (1999). As a general rule of grammar and statutory construction, “a modifying word
or clause is confined solely to the last antecedent, unless a contrary intention appears.” Id. at
237.
The word “or” is generally a disjunctive term in a statute. People v Gatski, 260 Mich
App 360, 365; 677 NW2d 357 (2004). The plain language of MCL 777.45(1)(g) reveals that the
Legislature intended the word “or” to establish alternative means for scoring five points. The
statutory provision applies to three types of offenses, namely, offenses involving delivery,
offenses involving possession with intent to deliver, and offenses involving simple possession, as
well as three classes of substances, namely, marijuana, controlled substances other than
marihuana, and counterfeit controlled substances.
But it does not follow that the phrase “having a value or under such circumstances as to
indicate trafficking” applies to each offense. MCL 777.45(1)(g) contains the only aggravating
circumstance that specifically uses the word “trafficking” in relation to listed offenses, although
it could be inferred from the content of other provisions that they involve some form of
trafficking. For instance, ten points is scored under MCL 777.45(1)(e) if the “offense involved
the sale, delivery, or possession with intent to sell or deliver 45 kilograms or more of marihuana
or 200 or more of marihuana plants.” Further, without regard to the amount, MCL 777.45(1)(d)
provides for a score of 25 points where the “offense involved the sale or delivery of a controlled
substance other than marihuana or a mixture containing a controlled substance other than
marihuana by the offender who was 18 years of age or older to a minor who was 3 or more years
younger than the offender.”
-6-
Had the Legislature intended to treat an offense involving simple possession the same as
an offense involving delivery or possession with intent to deliver in MCL 777.45(1)(g), there
would have been no need to set it apart from those offenses when listing the applicable classes of
substances. Further, a “trafficking” instruction for offenses involving delivery or possession
with intent to deliver is unnecessary because theses types of offenses, by their nature, already
carry an inference that the offender was involved in some form of trafficking.
Examined in the proper context, we conclude that MCL 777.45(1)(g) is not ambiguous.
The phrase “having a value or under such circumstances as to indicate trafficking” applies only
to an offense involving “possession of controlled substances or counterfeit controlled
substances.” Because defendant’s offense involved possession with intent to deliver cocaine, the
trial court did not err in scoring five points for OV 15. The trial court correctly rejected
defendant’s claim that OV 15 required that he act in a wholesale capacity. Therefore, it is
unnecessary to consider the prosecutor’s argument that it could be inferred from the trial
evidence regarding the amount of drugs and their packaging that defendant made sales for further
distribution as well as to users.
Turning to defendant’s challenge to the score of ten points for OV 19, MCL 777.49(c)
provides that ten points are to be scored if the offender “interfered with or attempted to interfere
with the administration of justice.” The investigation of a crime is a critical part of the
administration of justice. People v Barbee, 470 Mich 283, 288; 681 NW2d 348 (2004).
Therefore, the evidence underlying defendant’s conviction for resisting or obstructing a police
officer supports the score of ten points.
Affirmed.
/s/ Michael J. Talbot
/s/ E. Thomas Fitzgerald
/s/ Kirsten Frank Kelly
-7-
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.