PEOPLE OF MI V GREGORY ROGERS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 18, 2008
Plaintiff-Appellee,
v
No. 279245
Wayne Circuit Court
LC No. 07-003158-01
GREGORY ROGERS,
Defendant-Appellant.
Before: Whitbeck, P.J., and Bandstra and Donofrio, JJ.
PER CURIAM.
Defendant Gregory Rogers appeals as of right his bench trial convictions for possession
of hydrocodone,1 possession of codeine,2 possession of alprazolam,3 possession of less than 25
grams of heroin,4 possession of less than 25 grams of cocaine,5 and possession of marijuana.6
The trial court sentenced Rogers to 18 months’ probation. We affirm.
I. Basic Facts And Procedural History
Rogers’s convictions arise from an arrest that occurred in September 2006, at a house in
Detroit, Michigan. Detroit Police Officer Andrew White coordinated the execution of a search
warrant at the home. Officer White conducted pre-raid surveillance from a nearby location,
using a pair of binoculars to watch the back door of the property. He saw two different people
approach that door, and each exchanged paper currency with Rogers for suspected narcotics.
Rogers received money from the buyers and gave each something in the “cuffed hand position.”
Rogers stepped away from the door for a few seconds, returning to give each buyer what White
1
MCL 333.7403(2)(b)(ii).
2
Id.
3
Id.
4
MCL 333.7403(2)(a)(v).
5
Id.
6
MCL 333.7403(2)(d).
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suspected were narcotics. This was consistent with Officer White’s experience with street sales
of narcotics. Officer White described Rogers to the other officers on his team and sent them in
to execute the warrant.
Detroit Police Officer Aubrey Sargent was the first member of the arrest team to enter the
residence. She entered through the door where the transactions had occurred, which opened into
the kitchen, and she saw Rogers standing there alone. She pointed her shotgun at Rogers, told
him not to move, and watched Detroit Police Officer Keith Marshall handcuff and arrest him.
Officer Marshall searched Rogers and recovered a pill vial containing “Tylenol Number 3.”
Officer White confiscated $1,922 from Rogers. Detroit Police Officers Tyrone Bates and
Demetrius Brown were also members of the arrest team. Officers Sargent, Marshall, Bates, and
Brown all saw Rogers in the kitchen and a bag of narcotics on the stovetop when they entered the
property. Officer Sargent noted that Rogers was less than two feet away from the bag when she
entered the kitchen. After Rogers was secured, Officer Sargent moved into the living room,
where she encountered three people. Detroit Police Officer Keba Rhone served as outside
security during the police raid and only entered after the property had been cleared. When she
entered the kitchen, Rogers and four others were lined up against the wall in handcuffs, and she
saw a bag on the stove.
Alan Williams, a friend of Rogers, was in the living room when the police arrived. He
testified that Rogers arrived at the property only ten minutes before the police raid was executed.
According to Williams, Rogers went to a first floor bedroom when he arrived and was still in that
bedroom when he was arrested.
Rogers testified that he had been home for approximately 30 minutes before the police
arrived and that Officer Rhone arrested him while he was in the bathroom on the first floor. He
stated that the police found money in his pocket but no drugs. He testified that there were no
drugs on the stove and that there could not have been because, since it was the only source of
heat for the house, the burners were on. He stated that the police were primarily interested in
searching the second floor of the house, and they showed him a bag they found there at the time
of his arrest, which he later learned contained pills. Rogers testified that the second floor of the
home was kept locked by his brother, who was the primary occupant. He also stated that he did
not have a key to that floor. Rogers previously owned the property, but was leasing it from its
new owner at the time of trial, and using it to sell cars from the back door. He made no sales on
the day of his arrest, but had sold a car the day before, which was why he possessed
approximately $1,900 at the time of his arrest. He allowed his brother, who had nowhere else to
stay, to live at the house.
After the prosecution rested its case, Rogers moved for a directed verdict on the charges
for possession of heroin and possession with intent to deliver cocaine. Rogers argued that one or
both of these charges should be dismissed because the charges related to a folded piece of paper
that only contained .03 grams of a powder made up of both cocaine and heroin, contending that
such a small amount was not enough to qualify as possession of one or the other. Rogers further
argued that the possession with intent to deliver cocaine charge should be dismissed because
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there had been no evidence of containers found that could be used in its sale and distribution.
The trial court denied the motion regarding the charge for possession of heroin, but granted it
regarding the charge for possession with intent to deliver cocaine, reducing that charge to
possession of less than 25 grams of cocaine.7
The trial court found that Rogers knowingly possessed the controlled substances found by
the police during his arrest. Rogers now appeals.
II. Sufficiency Of The Evidence
A. Standard Of Review
Rogers argues that there was insufficient evidence to convict him of possession of the
controlled substances. We review de novo a claim of insufficient evidence.8 We review the
evidence in the light most favorable to the prosecutor and determine whether a rational trier of
fact could find that the essential elements of the crime were proven beyond a reasonable doubt.9
B. Analysis
The elements of possession of a controlled substance are: (1) the substance is one of
those proscribed by statute, (2) the defendant was not authorized to possess it, and (3) the
defendant knowingly possessed it.10 Possession can be either actual or constructive, and
“[c]onstructive possession exists when the totality of the circumstances indicates a sufficient
nexus between defendant and the contraband.”11 Possession may also be joint or exclusive.12
Proof of possession can be satisfied by circumstantial evidence and the reasonable inferences
that arise from that evidence.13
Citing People v Davenport,14 Rogers argues that his convictions must be reversed
because all of the evidence linking him to the controlled substances was circumstantial. In
Davenport, the two defendants were arrested while attempting to dispose of marijuana in a
toilet.15 After recovering the marijuana before it could be flushed away, the police searched the
7
MCL 333.7403(2)(a)(v).
8
People v Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001).
9
Id.
10
See People v Gonzalez, 256 Mich App 212, 225-226; 663 NW2d 499 (2003).
11
People v Johnson, 466 Mich 491, 500; 647 NW2d 480 (2002).
12
People v Meshell, 265 Mich App 616, 622; 696 NW2d 754 (2005).
13
People v Nunez, 242 Mich App 610, 615; 619 NW2d 550 (2000).
14
People v Davenport, 39 Mich App 252; 197 NW2d 521 (1972).
15
Id. at 254.
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house and found a barrel in the basement that contained heroin and soiled clothes.16 The
defendants were charged with possession of both heroin and marijuana, and convicted on both
counts.17 This Court reversed the defendants’ heroin convictions, however, because “[t]he
evidence in this case regarding possession of the heroin is entirely circumstantial.”18
We first note that we are not bound by the pre-1991 Davenport decision.19 Second, we
note that more recent panels of this Court have declined to enforce this Davenport standard,
stating that “[t]he prosecutor is not required to present direct evidence linking the defendant to
the crime.”20 The prosecution’s theory can be satisfactorily proved beyond a reasonable doubt
by circumstantial evidence and the reasonable inferences that arise from that evidence.21 And
finally, we find the present case distinguishable from Davenport because, as this Court stated in
that case, “there [was] no evidence whatever tending to show that Davenport knew of the
presence of the heroin found in the barrel in the basement.” In so stating, the Davenport panel
distinguished the facts at issue from those of People v Cardenas, 21 Mich App 636; 176 NW2d
447 (1970), in which “there was evidence tending to show that the defendant knew precisely
where the marijuana was located[,]” and People v Davis, 29 Mich App 443; 185 NW2d 609
(1971), in which “the defendants were in close proximity to the heroin at the time the police
entered and were all aware of the presence of the narcotics.”22
Here, sufficient evidence was offered to prove that Rogers knew where the substances
were located because they were in plain view and he was in close proximity to them at the time
the police entered. Further, the arresting police officers’ testimony was sufficient to link Rogers
to the recovered substances. Officer White witnessed Rogers engaging in two transactions at the
back door of the house that fit the profile of narcotics sales and confiscated $1,922 in cash from
him. The back door of the house led directly to the kitchen. Shortly after witnessing the drug
transactions, Officers Sargent, Marshall, Bates, and Brown all saw Rogers in the kitchen and a
bag of narcotics on the stovetop when they entered the property. Officer Sargent, who was the
first to enter, found Rogers within two feet of the drugs on the stove. Officer Keith confiscated a
bottle of pills from Rogers during the arrest. From this evidence, albeit circumstantial, a rational
trier of fact could infer that Rogers had been engaged in the sale of the controlled substances
found on the stovetop and, therefore, possessed them.
16
Id. at 255.
17
Id.
18
Id. at 256.
19
MCR 7.215(J)(1).
20
People v Saunders, 189 Mich App 494, 495; 473 NW2d 755 (1991).
21
Id., citing People v Drayton, 168 Mich App 174, 176; 423 NW2d 606 (1988); People v
Daniels, 163 Mich App 703, 707; 415 NW2d 282 (1987); People v Richardson, 139 Mich App
622, 625; 362 NW2d 853 (1984). See also People v Greenwood, 209 Mich App 470, 472; 531
NW2d 771 (1995).
22
Id. at 256 n 4.
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Moreover, sufficient evidence was provided for a rational trier of fact to conclude that
Rogers had sufficient control of the property where the controlled substances were found. He
was the previous owner of the house and a current lessee. He allowed his brother and Alan
Williams to live at the house. And he conducted a business selling cars from the property.
Nevertheless, Rogers further argues that he was not arrested in the kitchen of the house
and that the controlled substances were not found on the stovetop, but rather, on the second floor
of the house, to which he did not have access. This argument is supported by his own testimony
at trial, and that of Williams, who lived in the house. Whether to believe the testimony of
Rogers and Williams, whose testimony contradicted each other and the police testimony,
regarding the events at the time of Rogers’s arrest is a question of credibility. Such questions are
properly left to the trier of fact to determine, and all matters involving conflicting evidence must
be resolved in favor of the prosecution.23 In this case, the trier of fact found the testimony of the
police officers to be credible and this Court defers to the trial court’s credibility determinations.
Affirmed.
/s/ William C. Whitbeck
/s/ Richard A. Bandstra
/s/ Pat M. Donofrio
23
People v Fletcher, 260 Mich App 531, 562; 679 NW2d 127 (2004).
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