PEOPLE OF MI V DANIEL SMITH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 18, 2008
Plaintiff-Appellee,
v
No. 278580
Wayne Circuit Court
LC No. 07-003565-01
DANIEL SMITH,
Defendant-Appellant.
Before: Whitbeck, P.J., and Bandstra and Donofrio, JJ.
PER CURIAM.
Defendant Daniel Smith appeals as of right his jury convictions of possession of a
controlled substance with intent to deliver1 and possession of a firearm during the commission of
a felony.2 The trial court sentenced Smith to two years’ imprisonment for the felony-firearm
conviction and five years’ probation for the possession of a controlled substance with intent to
deliver. We affirm.
I. Basic Facts And Procedural History
On the afternoon of September 5, 2005, police entered a house located in Detroit to
execute a narcotics search warrant. On their arrival, the police officers found approximately six
people on the first floor. On further searching the house, officers found Smith and an
unidentified woman in an upstairs bedroom. During a search of the room, Officer Booker Tooles
found a slipper that contained three plastic sandwich bags holding narcotics. In one plastic bag,
there were “twelve lottery packs” of powdered narcotics. Another plastic bag contained “22
paper wraps” of cocaine. Each paper wrap contained an amount of either powder or rock
cocaine. Officer Tooles testified that each paper wrap and each lottery pack at that time would
have had a street value of $10. The powdered form of cocaine generally has a higher street value
than rock cocaine. The third plastic bag held approximately “three to four chunks of cocaine.”
In Officer Tooles’ opinion, these chunks would be worth anywhere from $400 to $600 in total
and all the seized drugs would be worth approximately $1,000.
1
MCL 333.7401(2)(a)(iv).
2
MCL 750.227b.
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During direct examination at trial, Officer Tooles noted that he had executed well over
5,000 narcotics search warrants and had seized narcotics over 10,000 times. In his experience,
Officer Tooles testified, the chunks would be broken down and packaged in paper packs. He
went on to testify that, in his opinion, the drugs found in the home were being used for individual
narcotic sales. Officer Tooles reached this conclusion by considering:
[T]he way they were packaged, the sandwich baggies, how they were broken
down, the 22, and they were packaged all the same. The other sandwich bag that
had 12 packs, they were different types, and I have seen that type used in many,
many times in narcotic sales.
In further elaboration, Officer Tooles testified that, in his individual experience, the amount of
narcotics found indicated that these drugs were not for personal usage.
Both parties stipulated that the forensic services section of the Detroit Police Department
had conducted laboratory testing and that the testing concluded the bag with 12 paper packs held
.61 grams of cocaine, the bag with 22 paper packs contained .92 grams of cocaine, and the third
sandwich bag contained 6.89 grams of cocaine.
During cross-examination, Officer Tooles noted that he did not know for sure whether the
narcotics were for personal use. In addition, Officer Tooles admitted that, in his experience, he
has come across a large quantity of cocaine for a party before and that he did not know if the
narcotics in this case were to be used for that purpose. The police’s search of the home did not
yield any tally sheets, scales, money, or anything related to the manufacture of any narcotics.
During redirect questioning, however, Officer Tooles testified that money is often kept separate
from the narcotics to prevent the loss of both during a police investigation.
In addition to the narcotics, the police also found three firearms in the second floor
bedroom where Smith was found. The firearms included: 1) a .22-caliber pistol found on top of
the entertainment system; 2) “a Russian-made 7.62 semi-automatic rifle,” also known as an
AK47, found behind the door; and 3) a semi-automatic .22-caliber rifle found behind the bed.
All the firearms were unloaded, and the record does not support that any ammunition was found.
Officer Philip Rodriguez was one of the officers who searched the house on September 5,
2005. After advising him of his Miranda3 rights, Rodriguez interviewed Smith. Smith admitted
that he lived at the home and that he was “in possession of cocaine,” as well as several weapons.
When Rodriquez asked him what he was doing with the cocaine, Smith answered that he was
“holding it.” In addition, Smith claimed he was “holding [the weapons] for protection.”
Rodriquez testified that Smith did not appear to be under the influence of any narcotics or
alcohol. Further, Smith denied that he was under the influence of any drugs.
At the conclusion of the prosecutor’s case, Smith moved for a directed verdict. The
defense argued that the prosecution failed to show sufficient evidence to prove Smith intended to
deliver the narcotics. The prosecution disagreed, arguing that the quantity of narcotics, the
3
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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packaging of the narcotics, and Officer Tooles’ testimony were sufficient to demonstrate intent.
The trial court denied the motion, acknowledging the packaging and the quantity of the seized
narcotics as well as the street value of the narcotics were evidence of Smith’s intention to deliver
the narcotics. Smith now appeals.
II. Sufficiency Of The Evidence
A. Standard Of Review
Smith argues that there was insufficient evidence to support his convictions for
possession of narcotics with an intent to deliver and felony-firearm. This Court reviews de novo
a challenge to the sufficiency of the evidence.4 When assessing a sufficiency of the evidence
challenge, 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 proven beyond a reasonable doubt.”5
B. Analysis
To prove possession with the intent to deliver less than 50 grams of cocaine, the
prosecution must show beyond a reasonable doubt that: 1) the substance found was cocaine,
2) the cocaine weighed less than 50 grams; 3) the defendant was not authorized to possess the
cocaine, and 4) the defendant knowingly possessed the cocaine with intent to deliver.6
The first three required elements are not in dispute. During trial, the parties stipulated
that laboratory tests confirmed that the substance found in the second floor bedroom was cocaine
and that the cocaine weighed less than 50 grams. And Smith does not argue that he was
authorized to possess the cocaine.
The fourth element of the crime requires that Smith both knowingly possessed cocaine
and had intent to deliver.7 Smith did not at trial, nor does he now on appeal, dispute that he was
in possession of the cocaine found during the search. Indeed, in his initial statement to police,
Smith admitted that he possessed the cocaine. Therefore, the only element at issue is Smith’s
intent to deliver.
To prove intent to deliver, actual delivery is not required.8 Possession with intent to
deliver may be inferred from circumstantial evidence “and reasonable inferences arising from
that evidence[.]”9 “[B]ecause of the difficulty of proving an actor’s state of mind, minimal
4
People v Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001).
5
People v Nowack, 462 Mich 392, 399-400; 614 NW2d 78 (2000).
6
People v Wolfe, 440 Mich 508, 516-517; 489 NW2d 748 (1992), amended 441 Mich 1201
(1992); People v Gonzalez, 256 Mich App 212, 225-226; 663 NW2d 499 (2003).
7
Wolfe, supra at 519.
8
Id. at 524.
9
Id. at 526.
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circumstantial evidence is sufficient.”10 “Intent to deliver has been inferred from the quantity of
narcotics in a defendant’s possession, from the way in which those narcotics are packaged, and
from other circumstances surrounding the arrest.”11
In People v Wolfe, the police had purchased cocaine from the apartment where the
defendant was arrested, and upon arrest, the defendant had the police’s marked money.12 The
defendant did not contradict that cocaine was actually sold from the apartment.13 Moreover,
there was evidence that the cocaine was packaged for sale, and none of the evidence suggested
that the cocaine was possessed for personal use: “[n]o glass pipes or other paraphernalia
typically used to smoke cocaine were found.”14 Accordingly, the Michigan Supreme Court held
that there was sufficient evidence to prove possession with intent to deliver.15 Likewise, in
People v Hardiman,16 there was evidence that drug packaging occurred in the defendant’s
apartment, and a large sum of money was found in the apartment. Additionally, no paraphernalia
associated with use of drugs was found in the apartment.17 The Michigan Supreme Court found
that the evidence was sufficient to justify a finding that the defendant intended to deliver the
drugs.18 Further, in People v Gonzalez, this Court considered the quantity of cocaine, along with
a sifter containing cocaine residue, weapons, and other drug paraphernalia to conclude that the
defendant intended to deliver the cocaine, not merely possess it.19
Here, viewing the evidence in a light most favorable to the prosecution, we conclude that
there was sufficient evidence of intent based upon: 1) the amount, packaging, and street value of
the cocaine found; 2) the presence of multiple firearms; 3) Smith’s admission that he possessed
the cocaine and the firearms, and 4) Smith’s denial of any narcotics usage.
We affirm.
/s/ William C. Whitbeck
/s/ Richard A. Bandstra
/s/ Pat M. Donofrio
10
People v Fetterley, 229 Mich App 511, 518; 583 NW2d 199 (1998).
11
Wolfe, supra at 524.
12
Id. at 511-512, 523-524.
13
Id. at 524.
14
Id. at 524-525.
15
Id. at 525.
16
People v Hardiman, 466 Mich 417, 419-420; 646 NW2d 158 (2002).
17
Id. at 422 n 5.
18
Id. at 422.
19
Gonzalez, supra at 226.
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