PEOPLE OF MI V VICTOR MAURICE LINDSEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 18, 2008
Plaintiff-Appellee,
v
No. 275841
Wayne Circuit Court
LC No. 06-010460-01
GREGORY LEROY HAWKINS,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 275842
Wayne Circuit Court
LC No. 06-010460-02
VICTOR MAURICE LINDSEY,
Defendant-Appellant.
Before: Murray, P.J., and Bandstra and Fort Hood, JJ.
PER CURIAM.
Codefendants, Gregory Leroy Hawkins and Victor Maurice Lindsey, were tried together
for multiple narcotics and firearm offenses. In Docket No. 275841, Hawkins was convicted of
possession with intent to deliver ecstasy, MCL 333.7401(2)(b)(i), possession with intent to
deliver less than five kilograms of marijuana, MCL 333.7401(2)(d)(iii), and possession of a
firearm during the commission of a felony, MCL 750.227b. Hawkins was sentenced to 3 to 20
years’ imprisonment for the possession with intent to deliver ecstasy conviction, 30 to 48
months’ imprisonment for the possession with intent to deliver marijuana conviction and to two
years’ imprisonment for the felony-firearm conviction. In Docket No. 275842, Lindsey was
convicted of possession with intent to deliver ecstasy, MCL 333.7401(2)(b)(i), possession with
intent to deliver less than five kilograms of marijuana, MCL 333.7401(2)(d)(iii), felon in
possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a
felony, MCL 750.227b. Lindsey was sentenced to 50 to 240 months’ imprisonment for the
possession with intent to deliver ecstasy conviction, 30 to 48 months’ imprisonment for the
possession with intent to deliver marijuana conviction, 40 to 60 months’ imprisonment for the
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felon in possession of a firearm conviction and to two years’ imprisonment for the felony-firearm
conviction. Both defendants appeal as of right. We affirm.
Hawkins argues on appeal that there was insufficient evidence to convict him of
possession with intent to deliver ecstasy and felony-firearm. We disagree. This Court reviews
claims of insufficient evidence de novo, viewing the evidence in the light most favorable to the
prosecutor, 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 Osantowski, 274 Mich App 593,
612-613; 736 NW2d 289 (2007).
It is for the trier of fact rather than this Court to determine what inferences can be fairly
drawn from the evidence and to determine the weight to be accorded to the inferences. People v
Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). Circumstantial evidence and reasonable
inferences that arise from it can establish elements of a crime beyond a reasonable doubt. People
v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999).
The elements of possession with intent to deliver a controlled substance generally include
(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, 622-623;
709 NW2d 595 (2005). However, where the controlled substance is ecstasy, its weight is
irrelevant. See MCL 333.7401(2)(b). “The elements of felony-firearm are 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); MCL 750.227b.
Actual physical possession of a controlled substance or a firearm is not required; rather,
constructive possession may be sufficient to establish guilt. People v Burgenmeyer, 461 Mich
431, 437-439; 606 NW2d 645 (2000); McGhee, supra at 622-623. Constructive possession
includes the knowledge of the presence of the substance or firearm coupled with the right to
control it. Burgenmeyer, supra; People v Meshell, 265 Mich App 616, 621-622; 696 NW2d 754
(2005).
To establish constructive possession of a controlled substance, there must be some
connection, or a “sufficient nexus,” between the defendant and the contraband other than his
mere presence or physical proximity to where the substance was found. Meshell, supra; see also
People v Wolfe, 440 Mich 508, 520; 489 NW2d 748 (1992); US v White, 932 F2d 588, 589 (CA
6, 1991). Possession of a controlled substance can be joint, and “constructive possession may be
found even if the defendant is not the owner of the controlled substance.” People v Williams,
268 Mich App 416, 421; 707 NW2d 624 (2005); see also Wolfe, supra. Constructive possession
of a firearm can be established by showing that the defendant knew the location of the weapon
and that it was “reasonably accessible” to the defendant or at his disposal. Burgenmeyer, supra
at 437.
Hawkins specifically argues that the evidence was insufficient to show that he possessed
the ecstasy or the firearms found in the raided house. He contends that he was not a resident of
the raided house and “constructive possession ‘should not be lightly imputed to one found in
another’s apartment or home.’” US v Dunlap, 28 F3d 823, 826 (CA 8, 1994) (quoting US v
Johnson, 952 F2d 1407, 1411 (CA DC, 1992)). He observes that there were other people in the
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raided house that could have possessed the ecstasy and firearms. In addition, police did not see
Hawkins handle those items. Finally, Hawkins argues that there was no evidence that he had any
role in obtaining the firearms and he did not attempt to use the AK-47 assault rifle or even reach
for it when police entered the house.
Considering that Hawkins confessed to possessing and selling the marijuana and was
observed by police sitting at the table containing the marijuana and the ecstasy, we find that a
sufficient nexus exists between the ecstasy and Hawkins such that a jury could infer that he
possessed the ecstasy. While Hawkins was not a resident of the raided house, police testified
that it was a drug house and Hawkins admitted to selling drugs out of it. In addition, a jury could
infer that Hawkins had constructive possession of the AK-47 assault rifle because he would have
known the location of the rifle, a mere five to eight feet from the table at which Hawkins
admittedly sat packaging marijuana, and he had reasonable access to it. Contrary to Hawkins’s
argument, to prove possession of a firearm, it is not necessary to show that the defendant
obtained the firearm or attempted to use it. Consequently, viewing the evidence in the light most
favorable to the prosecutor, we hold that a rational trier of fact could find that the essential
elements of possession with intent to deliver ecstasy and felony-firearm were proven beyond a
reasonable doubt. Osantowski, supra.
Hawkins also argues on appeal that the trial court improperly instructed the jury by
failing to adequately define the “right to control” when defining “possession” for the charged
offenses of possession with intent to deliver marijuana and ecstasy and of possession of a firearm
during the commission of a felony. We disagree. This Court reviews an unpreserved claim of
instructional error for plain error affecting defendant’s substantial rights. People v Hawthorne,
474 Mich 174, 176 n 1; 713 NW2d 724 (2006); Carines, supra at 763-764.
Jury instructions are read in their entirety to determine if error occurred. McGhee, supra
at 606. The trial court must clearly present the case and the applicable law to the jury. Id.
“[E]ven ‘if the instructions are imperfect, there is no error if they fairly presented the issues to be
tried and sufficiently protected the defendant's rights.’” Osantowski, supra at 611 (quoting
People v Milton, 257 Mich App 467, 475; 668 NW2d 387 (2003)). “The instructions must
include all elements of the charged offenses and any material issues, defenses, and theories if
supported by the evidence.” McGhee, supra. When a word or term is not defined by statute,
“this Court presumes that the word is subject to ordinary comprehension and there will be no
error warranting reversal as a result of a trial court’s failure to define a term that is generally
familiar to lay persons and is susceptible of ordinary comprehension.” People v Martin, 271
Mich App 280, 352; 721 NW2d 815 (2006).
“Possession” is not defined in any of the statutes Hawkins was convicted of violating.
However, the trial court read the standard instruction on possession to the jury on five occasions.
When asked to define “right to control” in the context of that instruction, the trial court instructed
the jurors to use their own common sense and experience. We hold that the term “right to
control” is susceptible to ordinary comprehension. Therefore, the trial court did not commit
error warranting reversal by declining to define it. Martin, supra.
Lindsey argues on appeal that he was denied his right to a unanimous verdict. We
disagree. The Michigan Constitution provides that a criminal jury be composed of 12 jurors and
a criminal verdict must be unanimous. People v Cooks, 446 Mich 503, 510-511; 521 NW2d 275
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(1994); Const 1963, art 1, § 14; see also MCR 6.410. The original trial transcript indicates that
only 11 jurors were polled regarding their guilty verdicts. However, the prosecutor asked the
court reporter to investigate her notes to determine whether that transcript was accurate. In
response, the court reporter provided a corrected transcript, which indicates that, indeed, 12
jurors were polled, and that they reached unanimous guilty verdicts. Thus, Lindsey was properly
convicted.
We affirm.
/s/ Christopher M. Murray
/s/ Richard A. Bandstra
/s/ Karen M. Fort Hood
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