PEOPLE OF MI V KENNETH GAIL HAYES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 17, 2009
Plaintiff-Appellee,
v
No. 284924
Oakland Circuit Court
LC No. 2007-216615-FH
KENNETH GAIL HAYES,
Defendant-Appellant.
Before: Donofrio, P.J., and Wilder and Owens, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of possession of 3,4methylenedioxymethamphetamine (ecstasy), with intent to deliver, MCL 333.7401(2)(b)(i), and
possession of marijuana, MCL 333.7403(2)(d). Defendant was sentenced as an habitual
offender, third offense, MCL 769.11, to 51 months to 40 years’ imprisonment for possession of
ecstasy with intent to deliver; he was sentenced to 365 days’ imprisonment for possession of
marijuana.1 We affirm, but remand for the ministerial task of correction of clerical errors in the
judgment of sentence.
I. Sufficiency of the Evidence
Defendant first contends that there was insufficient evidence to support his convictions.
A challenge to the sufficiency of the evidence is reviewed de novo. People v Lueth, 253 Mich
App 670, 680; 660 NW2d 322 (2002). In determining whether the prosecution has presented
sufficient evidence to sustain a conviction, we must construe the evidence in a light most
favorable to the prosecution and consider whether there was sufficient evidence to justify a
rational trier of fact in finding all of the elements of the crime beyond a reasonable doubt.
People v Johnson, 460 Mich 720, 722-723; 597 NW2d 73 (1999).
The offense of possession of a controlled substance requires a showing of knowledge of
its presence and character and dominion or control over the substance. People v McKinney, 258
1
The judgment of sentence contains inaccurate statutory citations with regard to defendant’s
conviction for marijuana possession, and with regard to defendant’s sentence as an habitual
offender. These inaccuracies should be corrected on remand.
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Mich App 157, 165; 670 NW2d 254 (2003). Possession may be joint or exclusive and either
actual or constructive. Id. at 166. “[C]onstructive possession exists where the defendant has the
right to exercise control over the narcotics and has knowledge of their presence.” People v
Hardiman, 466 Mich 417, 421 n 4; 646 NW2d 158 (2002). However, mere presence at a
location where contraband is found is insufficient to establish constructive possession. People v
Wolfe, 440 Mich 508, 520; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). Instead,
there must be a “sufficient nexus” between the defendant and the contraband based on the
totality of the circumstances. Id. at 521. Circumstantial evidence and reasonable inferences
drawn from that evidence can constitute proof of possession. People v Nunez, 242 Mich App
610, 615; 619 NW2d 550 (2000).
In this case there was sufficient evidence to allow a rational jury to conclude beyond a
reasonable doubt that defendant knowingly possessed marijuana. MCL 333.7403(2)(d).
Defendant was the only adult at his girlfriend, Kenya Campbell’s, apartment when the police
conducted a search and found a bag of marijuana on the table in the kitchen. Campbell testified
that the marijuana belonged to defendant and that she and defendant smoked marijuana together.
While defendant testified that he did not own or have knowledge of the marijuana, it is the
province of the jury to determine the weight of the evidence and credibility of witnesses. Wolfe,
supra at 513-516.
Similarly, we find there was sufficient evidence to allow a rational trier of fact to
conclude beyond a reasonable doubt that defendant knowingly possessed ecstasy with intent to
deliver, MCL 333.7401(2)(b)(i). “The element of knowing possession with intent to deliver has
two components: possession and intent.” People v Brown, 279 Mich App 116, 136; 755 NW2d
664 (2008). Defendant does not contest that the pills found on the couch were ecstasy; the
requisite evidence needed to show constructive possession is set forth above. See Hardiman,
supra. To show intent to deliver, proof of actual delivery is not required. Wolfe, supra at 524.
“An actor’s intent may be inferred from all of the facts and circumstances … and because of the
difficulty of proving an actor’s state of mind, minimal circumstantial evidence is sufficient.”
People v Fetterley, 229 Mich App 511, 517-518; 583 NW2d 199 (1998). “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.” Wolfe,
supra at 524.
In this case, circumstantial evidence showed that defendant had constructive possession
of the ecstasy because he had knowledge of the contraband and the right to exercise control over
it. Hardiman, supra. Defendant was the only adult at the apartment when police executed the
search warrant, and police testified they found him sitting on a couch within “arm’s length” from
where the ecstasy was located. The ecstasy was in packaging covered only by a throw blanket,
and there was approximately $560 on a coffee table approximately one foot in front of the couch.
In addition, evidence showed that defendant either resided at the apartment or that he spent a
significant amount of time there. Campbell testified defendant was at the apartment “four times
per week” and that defendant was not inhibited in his use of the apartment. Police discovered a
bag containing men’s clothing that appeared to be defendant’s size and found mail and a receipt
with defendant’s name and the apartment’s address on it. A DTE Energy bill revealed that one
of the utilities for the apartment was in defendant’s name. Defendant’s probation report was
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found on the refrigerator, testimony showed that the marijuana in the apartment belonged to
defendant, and Campbell was driving a vehicle registered in part in defendant’s name.
Furthermore, the evidence would also allow a rational trier of fact to conclude beyond a
reasonable doubt that defendant had intent to distribute the ecstasy. Here, approximately 40
ecstasy pills were discovered on the couch in close proximity to defendant, $560 was on a coffee
table nearby, and a digital scale was found in a closet. Defendant was the only person present.
Two police officers testified that, in their experience with drug trafficking, the amount of drugs
was consistent with an intent to distribute. See Wolfe, supra at 524 (the quantity and packaging
of contraband can be indicative of intent). The evidence was sufficient to sustain the conviction.
II. Ineffective Assistance of Counsel
Next, defendant contends he was denied the effective assistance of counsel when defense
counsel cross-examined a police officer about whether defendant was involved in a previous
drug transaction that formed the basis for the search warrant on the apartment. Unexpectedly,
the officer affirmed that defendant was involved in a prearranged sale to a police informant.
Defendant failed to preserve this issue for review because he did not move for a new trial or a
Ginther2 hearing before the trial court; therefore our review is limited to mistakes apparent on
the record. People v Marji, 180 Mich App 525, 533; 447 NW2d 835 (1989).
In order to establish that he was denied the effective assistance of counsel, a defendant
must show: “(1) counsel’s performance was below an objective standard of reasonableness under
professional norms and (2) there is a reasonable probability that if not for counsel’s errors, the
result would have been different and the result that did occur was fundamentally unfair or
unreliable.” People v Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007).
Even if we were to assume ineffective assistance of counsel, defendant cannot show that
counsel’s alleged deficient performance affected the outcome of the lower court proceedings. Id.
Even without the evidence concerning the arranged purchase, there was significant evidence
showing defendant had constructive possession of both the marijuana and the ecstasy, and that he
had the intent to deliver the ecstasy. We cannot conclude that, but for the error, there is a
reasonable probability that the outcome of trial would have been different. Id.
III. Defendant’s In Propria Persona Issue
Defendant next raises an issue in propria persona. We have reviewed defendant’s
arguments and conclude that they are not based on relevant or binding law or are abandoned.
See People v Anderson, 209 Mich App 527, 538; 531 NW2d 780 (1995) (where an issue is not
discussed, explained or rationalized, it is abandoned).
2
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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Affirmed and remanded with instruction to correct the clerical errors found in the
judgment of sentence. We do not retain jurisdiction.
/s/ Pat M. Donofrio
/s/ Kurtis T. Wilder
/s/ Donald S. Owens
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