PEOPLE OF MI V JERMAINE RAYMOND MOORE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 27, 2007
Plaintiff-Appellee,
v
No. 272400
Wayne Circuit Court
LC No. 06-002667-02
JERMAINE RAYMOND MOORE,
Defendant-Appellant.
Before: Murray, P.J., and Hoekstra and Wilder, JJ.
PER CURIAM.
Defendant was convicted by jury of attempted possession with intent to deliver under 50
grams of heroin, MCL 333.7401(2)(a)(iv), attempted possession with intent to deliver under 50
grams of cocaine, MCL 333.7401(2)(a)(iv), and attempted possession with intent to deliver
marijuana, MCL 333.7401(2)(d)(iii). He was subsequently sentenced to concurrently serve
prison terms of 18 to 60 months for the heroin and cocaine convictions and 12 to 24 months for
the marijuana conviction. Defendant appeals as of right. We affirm. This appeal is being
decided without oral argument pursuant to MCR 7.214(E).
Defendant was present in a “drug house” when police entered to execute a search warrant
that described another man as the suspected seller. The first two policemen who entered the
home testified that defendant and his co-defendant, Mr. Sims, were seated at a table in the dining
room. On the table between the men were marijuana, cocaine, heroin, packaging materials, a
large amount of cash, and a scale. Another co-defendant, Mr. McKnight, fled to the kitchen and
was found with baggies of cocaine on his person. Other people were in the living room of the
home. Defendant was tried with Mr. Sims and Mr. McKnight.
Defendant first argues that the evidence was insufficient to support his convictions for
attempted possession with intent to deliver marijuana, cocaine, and heroin because there was no
evidence that he knowingly possessed the drugs. This Court reviews sufficiency of the evidence
issues de novo in the light most favorable to the prosecution to determine whether a rational trier
of the fact could find that the essential elements of the crime were proven beyond a reasonable
doubt. People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999). “To convict a defendant of
possession with intent to deliver, the prosecution must prove (1) that the recovered substance is 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); see also People v Wolfe, 440
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Mich 508, 516-517; 489 NW2d 748, amended 441 Mich 1201 (1992). The elements of an
attempt are “(1) an intent to do an act or to bring about certain consequences which would in law
amount to a crime; and (2) an act in furtherance of that intent which, as is most commonly put,
goes beyond mere preparation.” People v Jones, 443 Mich 88, 100; 504 NW2d 158 (1993).
When the evidence is viewed in a light most favorable to the prosecution, there is no
question that defendant was seated at the table with Mr. Sims when the police entered the home.
Both the first and second police officers to enter the home so testified, and defendant’s
compliance with the first officer’s order to the ground explains the other officers’ testimony that
he was on the floor when they entered. There is also no question that heroin, marijuana, cocaine,
a large amount of cash, packaging materials, and a scale were on the table between defendant
and Mr. Sims. There were other people on the first floor of the home, but they were in the living
room area, not in the dining room. While defendant’s mere presence in the home would not be
sufficient to establish possession of the drugs, his presence at the table surrounded by drugs,
money, and drug paraphernalia is sufficient to infer that defendant either possessed or attempted
to possess the heroin, marijuana, and cocaine, with intent to deliver.
Defendant also argues that the trial court abused its discretion by denying defendant’s
motion for severance. Co-defendant McKnight moved for severance at a pretrial conference and
the trial court denied that motion, requesting that defense counsels discuss their defenses and file
a written motion if necessary. No motion was filed. Defendant’s trial counsel renewed the
motion just before the start of trial and the trial court denied that motion as untimely.
Severance is mandated under MCR 6.121(C) only when a defendant provides the
court with a supporting affidavit, or makes an offer of proof, that clearly,
affirmatively, and fully demonstrates that his substantial rights will be prejudiced
and that severance is the necessary means of rectifying the potential prejudice.
The failure to make this showing in the trial court, absent any significant
indication on appeal that the requisite prejudice in fact occurred at trial, will
preclude reversal of a joinder decision.
***
Inconsistency of defenses is not enough to mandate severance; rather, the
defenses must be “mutually exclusive” or “irreconcilable.’” [People v Hana, 447
Mich 325, 346-347, 349; 524 NW2d 682 (1994).]
Here, defendant did not provide the court with a supporting affidavit or make an offer of
proof that demonstrated prejudice because the motion was denied as untimely on the morning of
trial. However, this Court has the benefit of reviewing the co-defendants’ defenses in total.
Defendant and Mr. Sims argued that their presence in the home, or even at the table, did not
constitute possession of the drugs. Mr. McKnight argued that he possessed cocaine only, and not
the other drugs. These defenses are not mutually exclusive; the co-defendants did not argue that
they did not possess the drugs because defendant did. Mr. McKnight was the only defendant to
testify and he testified that he purchased the cocaine from Mr. Fluker, that he did not know
where defendant was when the police entered, and that he did not see Mr. Sims handle drugs that
night. Mr. McKnight’s testimony may have assisted defendant because he testified that he did
not purchase the drugs from defendant. Defendant has not shown any prejudice from the lack of
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severance and he may have even benefited from the joint trial. Because the co-defendants’
defenses were not mutually exclusive and defendant has shown no prejudice from the joint trial,
the trial court did not abuse its discretion by denying the motion to sever.
Defendant also argues that his counsel was ineffective for failing to file a written motion
to sever and because trial counsel stipulated to admission of the search warrant after the
prosecution closed its case. This Court was not provided with a copy of the search warrant, and
defendant does not specify what about the search warrant was prejudicial. The search warrant
may have been helpful to defendant because he did not fit the description of the person listed as
the suspected drug seller, and Mr. McKnight testified that Mr. Fluker, whom he purchased drugs
from, did fit that description. Admission of the search warrant in this case was a matter of trial
strategy, and this Court will not substitute its judgment for trial counsel’s in that regard. People
v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999).
Next defendant argues that his counsel was ineffective for failing to file a written motion
to sever defendant’s trial from his co-defendants. Ineffective assistance of counsel cannot be
predicated on the failure to make a frivolous or meritless motion. People v Darden, 230 Mich
App 597, 605; 585 NW2d 27 (1998). As discussed above, the trial court did not abuse its
discretion in denying defendant’s motion to sever, and therefore, the motion would have been
meritless. Although presumably a written motion for severance would have contained an
affidavit detailing the prejudice and need for severance, in finding that the trial court did not
abuse its discretion, this Court has the benefit of reviewing the trial transcript for prejudice to
defendant. As discussed above, we find no prejudice. Therefore, defendant did not establish that
trial counsel was ineffective for failing to file a written motion to sever the codefendants’ trials.
Affirmed.
/s/ Christopher M. Murray
/s/ Joel P. Hoekstra
/s/ Kurtis T. Wilder
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