PEOPLE OF MI V ALAN EDWARD REBER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 15, 2009
Plaintiff-Appellee,
v
No. 280956
Wayne Circuit Court
LC No. 07-009642-01
ALAN EDWARD REBER,
Defendant-Appellant.
Before: Saad, C.J., and O’Connell, and Zahra, JJ.
PER CURIAM.
The jury convicted defendant of manufacture of marijuana, MCL 333.7401(2)(d)(iii),
possession with intent to deliver marijuana, MCL 333.7401(2)(d)(iii), and possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was
sentenced to 18 months’ probation for the manufacture of marijuana and possession with intent
to deliver convictions (concurrent), and two years in prison for the felony-firearm conviction.
He appeals as of right. We affirm.
Defendant argues that the trial court erred in not giving an instruction on the offense of
possession of marijuana because it is a necessarily included lesser offense of both manufacture of
marijuana and possession with intent to deliver marijuana, and furthermore, a rational view of
the evidence supported such an instruction for possession of marijuana.
This Court reviews de novo the determination whether an offense is a lesser-included
offense. People v Nickens, 470 Mich 622, 625; 685 NW2d 657 (2004). “[A] requested
instruction on a necessarily included lesser offense is proper if the charged greater offense
requires the jury to find a disputed factual element that is not part of the lesser included offense
and a rational view of the evidence would support it.” People v Smith, 478 Mich 64, 69; 731
NW2d 411 (2007). Generally, “all the elements of a necessarily considered lesser offense are
contained within those of the greater offense. Thus, it is impossible to commit the greater
without first having committed the lesser.” People v Bearss, 463 Mich 623, 627; 625 NW2d 10
(2001) (internal citations omitted). To warrant reversal of convictions on the basis of the failure
to instruct the jury on a lesser-included offense, a “defendant must show that it is more probable
than not that the failure to give the requested instruction undermined the reliability of the
verdict.” People v Lowery, 258 Mich App 167, 173; 673 NW2d 107 (2003).
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Even assuming that possession of marijuana is a necessarily included lesser offense of
both manufacture of marijuana and possession with intent to deliver marijuana, a rational view of
the evidence does not support an instruction for possession of marijuana. The evidence
presented at trial reflects no real dispute regarding whether defendant intended that the marijuana
be delivered to others. Defendant admitted that he was engaged in selling marijuana to friends.
Further, the police also recovered quantities of marijuana and other evidence consistent with
ongoing sales: (1) three marijuana plants growing in the yard and starter plants present inside, (2)
a digital scale found in close proximity to marijuana, which, as Detective David Juras explained,
is “generally used . . . to weigh drugs when they are packaged for delivery, distribution, or sale”;
(3) small plastic zipper bags, commonly used to package drugs, and (4) 13 guns, including a
loaded AK-47, which Detective Michael Kowalski described as the type of weapons that drug
dealers use “to protect their business.” Therefore, the trial court did not err in refusing to give an
instruction on possession of marijuana.1
Defendant next argues that, on two occasions, the prosecutor made arguments that were
prejudicial and without evidentiary support, thereby denying defendant a fair trial. We disagree.
This Court reviews de novo claims of prosecutorial misconduct “to determine whether
the defendant was denied a fair trial.” People v Wilson, 265 Mich App 386; 695 NW2d 351
(2005). This Court considers issues of prosecutorial misconduct “on a case-by-case basis by
examining the record and evaluating the remarks in context, and in light of defendant’s
arguments.” People v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004). This Court also
examines the relationship between the remarks and the evidence admitted at trial. People v
Brown, 279 Mich App 116, 135; 755 NW2d 664 (2008). “[T]he test for prosecutorial
misconduct is whether a defendant was denied a fair and impartial trial. A defendant’s
opportunity for a fair trial can be jeopardized when the prosecutor interjects issues broader than
the defendant’s guilt or innocence.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546
(2007). Curative instructions, however, “are sufficient to cure the prejudicial effect of most
inappropriate prosecutorial statements.” People v Unger, 278 Mich App 210, 235; 749 NW2d
272 (2008).
“A prosecutor may not make a statement of fact to the jury that is unsupported by
evidence, but . . . is free to argue the evidence and any reasonable inferences that may arise from
the evidence.” People v Ackerman, 257 Mich App 434, 450; 669 NW2d 818 (2003).
“[P]rosecutors may use ‘hard language’ when it is supported by evidence and are not required to
1
Although the trial court based its decision on the fact that possession of marijuana is a
misdemeanor, the correct rule is: “MCL 768.32(1) precludes cognate lesser misdemeanors and
only permits necessarily included lesser misdemeanors if supported by a rational view of the
evidence.” People v Cornell, 466 Mich 335, 359; 646 NW2d 127 (2002), overruled in part on
other grds People v Mendoza, 468 Mich 527, 533, 664 NW2d 685 (2003). Thus, refusal to give
the instruction was proper because, as discussed, a rational view of the evidence did not support
it. This Court, however, “will not reverse a trial court if it reached the right result for an
alternative reason.” Detroit International Bridge Co v Commodities Export Co, 279 Mich App
662, 668; 760 NW2d 565 (2008).
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phrase arguments in the blandest of all possible terms.” People v Ullah, 216 Mich App 669, 679;
550 NW2d 568 (1996).
During closing arguments, defendant first objected when the prosecutor stated, in
reference to the half-pound bag of marijuana that defendant admitted buying, “$650 is a lot of
marijuana money. Why does the defendant need to buy marijuana when he is also
manufacturing it and selling it? Because he has a thriving business. He can’t even produce
enough marijuana to sell to all of the people that he is selling to.” Defendant argues on appeal
that no witnesses testified to the size or success of defendant’s business, and the prosecutor did
not produce any direct evidence that defendant was actually selling any marijuana. We find that
the prosecutor’s description of defendant’s drug sales as a “thriving business,” however, is not an
unreasonable inference based on the facts.
Here, defendant admitted that he was engaged in selling marijuana to friends. Although
on appeal, defendant suggests his admission referred to something that happened in the past, the
question was phrased in the present tense: “Do you sell drugs?” and the answer was “a gram or
so to friends.” Further, as discussed above the police also recovered quantities of marijuana and
other evidence consistent with ongoing sales: (1) three marijuana plants growing in the yard and
starter plants present inside, (2) a digital scale found in close proximity to marijuana, which is
“generally used . . . to weigh drugs when they are packaged for delivery, distribution, or sale”;
(3) small plastic zipper bags, commonly used to package drugs, and (4) 13 guns, including a
loaded AK-47, the type of weapons that drug dealers use “to protect their business.” In
additional to evidence that defendant was growing and selling marijuana, defendant admitted that
he bought the half-pound bag of marijuana from a third party for $650, and had been buying
from this person for two months. Therefore, it was not an unreasonable inference, based on the
evidence, to argue that defendant had a thriving marijuana business.
Defendant also objected when, during rebuttal, the prosecutor argued, “[t]he defendant
has sold drugs in the past. How many marijuana plants do you have? Three . . . . Have you
grown them? Yes. Have you grown them before? Yes. He has sold these drugs in the past, and
that’s what he does. That’s how the person who was the CI knew about it. If you don’t sell
drugs to people, if you don’t have marijuana in your home, how do people even know about it?”
After defendant’s objection, the prosecutor reiterated, “[h]ow do you even know what is in
someone’s home unless you [sic] been there, and you saw it.” Defendant argues on appeal that
none of the witnesses testified that the informant bought marijuana from defendant or that the
informant had ever seen defendant sell marijuana, and therefore, this argument was not
supported by evidence presented at trial. We disagree.
Initially, we note the prosecutor did not explicitly say that the confidential informant saw
defendant sell drugs. Nonetheless, the prosecutor’s argument is not improper given the
following direct examination testimony of Detective Trooper Jon Bowerman:
Q. When did you get knowledge or information that the defendant in court may
be involved in selling drugs? About what time was that?
A. Within a week of the execution of the search warrant.
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Q. What did you do as far as follow up on the information that you got that the
defendant may be involved in drugs?
A. I conducted surveillance on more than one occasion, observing the residence,
and found that it was accurate to what my informant had advised me.
[Emphasis added.]
And although Detective Bowman’s testimony on cross-examination only indicated that
the confidential informant told him that defendant was growing and using marijuana, the jury
may have believed that the informant passed on evidence of drug sales.
Even if the prosecutor’s comments were improper, however, the judge instructed the jury
that “the lawyers’ statements and their arguments are not evidence. They are only meant to help
you understand the evidence, and each side’s legal theories.” As noted, curative instructions “are
sufficient to cure the prejudicial effect of most inappropriate prosecutorial statements.” Unger,
supra at 235. Therefore, defendant was not denied a fair trial.
Affirmed.
/s/ Henry William Saad
/s/ Peter D. O’Connell
/s/ Brian K. Zahra
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