PEOPLE OF MI V TYLER LYNN ROBINS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 3, 2010
Plaintiff-Appellee,
v
No. 290884
Eaton Circuit Court
LC No. 07-020305-FH
TYLER LYNN ROBINS,
Defendant-Appellant.
Before: BANDSTRA, P.J., and FORT HOOD and DAVIS, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of manufacturing
methamphetamine, MCL 333.7401(2)(b)(i), for which he was sentenced as a third habitual
offender, MCL 769.11, to five to 40 years in prison. We affirm.
The prosecution asserted that Daniel Cook, John Aspinall, and defendant were
manufacturing methamphetamine outside an abandoned farmhouse. Cook, who testified
pursuant to a plea agreement, stated that Aspinall called him for a ride, and he arrived to witness
Aspinall and defendant mixing chemicals in containers. Cook explained that he believed that
defendant and Aspinall were making methamphetamine because he could smell anhydrous
ammonia. After approximately 20 minutes, Aspinall and defendant packed up their containers
and left in two vehicles, a Cadillac and a Ford truck. Cook testified that defendant placed a filled
“Kool-Aid” pitcher, which he believed contained a liquid form of the methamphetamine mixture,
into the Cadillac. Cook and Aspinall left in the truck and defendant left in the Cadillac; the
vehicles drove in opposite directions away from the property.
While the three men were at the property, a neighbor called the police to report the
suspicious activity. As the men were leaving the property, a deputy sheriff pursued the truck into
a cornfield. At some point during the pursuit Cook and Aspinall hit a fence and abandoned the
truck to flee on foot. Cook testified that as he and Aspinall ran, Aspinall called defendant on a
cell phone; Cook was unable to hear the conversation. According to Cook, after Aspinall ended
the conversation, Aspinall explained that defendant allegedly told Aspinall that he had passed
one of the responding officers and that defendant “had his monster with him.” Cook clarified at
trial that this was a reference to the methamphetamine. Cook, Apsinall, and defendant were
arrested several days following this incident.
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On appeal, defendant argues that the trial court erred by admitting Cook’s testimony
regarding the alleged phone call between Aspinall and himself because it was inadmissible
hearsay, considering that Aspinall did not testify at their joint trial. Counsel for defendant did
not object to this testimony; thus, we review this issue for plain error. People v Grant, 445 Mich
535, 546; 520 NW2d 123 (1994); see also People v Carines, 460 Mich 750, 761-762; 597 NW2d
130 (1999). To prevail, “the defendant bears the burden of establishing that: (1) error occurred,
(2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights.”
People v Jones, 468 Mich 345, 355; 662 NW2d 376 (2003), citing Grant, 445 Mich at 548-549;
Carines, 460 Mich at 763.
Generally, hearsay is inadmissible. MRE 802; People v Stamper, 480 Mich 1, 3-4; 742
NW2d 607 (2007). However, a statement is not hearsay if it is offered against a party and it is
made “by a coconspirator of a party during the course and in furtherance of the conspiracy on
independent proof of the conspiracy.” MRE 801(d)(2)(E). To satisfy MRE 801(d)(2)(E), the
proponent of the statement must show: 1) that the statement was made “during the course” of
the conspiracy, 2) that the statement was “in furtherance” of the objective of the conspiracy, and
3) proof of the conspiracy independent of the statement itself. Id.; People v Martin, 271 Mich
App 280, 316-317; 721 NW2d 815 (2006). Defendant argues that MRE 801(d)(2)(E) does not
apply because the alleged manufacture of the methamphetamine was complete at the time the
statement was made, and therefore, that the statement was not in furtherance of the conspiracy.
We disagree.
A conspiracy “continues ‘until the common enterprise has been fully completed,
abandoned, or terminated.’” Martin, 271 Mich App at 317, quoting People v Bushard, 444 Mich
384, 394; 508 NW2d 745 (1993). The arrest of a coconspirator or the failure of the objectives
ends the conspiracy. See People v Trilck, 374 Mich 188, 124, 128; 132 NW2d 134 (1965); see
also Ayoub, 150 Mich App at 153-154. Here, the conspiracy was the manufacture of
methamphetamine. Before the statement was made, Cook, Aspinall, and defendant had already
loaded up the vehicles and left the property. Cook testified that defendant placed a container
filled with a liquid form of the methamphetamine mixture inside the Cadillac. Significantly, the
prosecution’s expert witness explained that separating the powdered end product from the
intermediate liquid form could be completed at a later time from the initial step in mixing the
starting ingredients with a catalyst. A reasonable inference could thus be made that the
manufacture was not yet completed when the police began pursuing Cook and Aspinall.
Therefore, we find that the statement was made during the course of the conspiracy because it
was made before the termination or abandonment of the conspiracy.
Additionally, the statement must have been made in furtherance of the conspiracy. MRE
801(d)(2)(E). “Although idle chatter will not satisfy this requirement, statements that prompt the
listener, who need not be one of the conspirators, to respond in a way that promotes or facilitates
the accomplishment of the illegal objective will suffice.” Martin, 271 Mich App at 317. The “in
furtherance” requirement includes statements made to coconspirators to keep them apprised of
the status of the conspiracy. Bushard, 444 Mich at 395 (Boyle, J.), citing United States v Gibbs,
739 F2d 838, 845 (CA 3, 1984). Here, the statement was made to inform both Aspinall and
Cook that defendant still had his methamphetamine with him and that the objective of the
conspiracy, the production of methamphetamine, had not yet been frustrated by the police
pursuit. Thus, we find that this statement was in furtherance of the conspiracy, because it
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apprised Aspinall and Cook about their collective stake in the success of the conspiracy. See
Martin, 271 Mich App at 319. Contrary to defendant’s assertion, then, the statement was made
during the course of the conspiracy, and in furtherance of it, and consequently, there was no error
in its admission.
Even were we to find the admission of the statement erroneous, however, we would
conclude that defendant has failed to show that his substantial rights were affected. Carines, 460
Mich at 763-764. The jury could still consider Cook’s testimony that defendant and Aspinall
were mixing what he believed was methamphetamine, and the neighbor’s testimony that he saw
an anhydrous ammonia cloud during the course of the suspicious activities of the three men at
the property. This evidence, coupled with the testimony concerning the ingredients and other
evidence found in Cook’s truck and at the farm, and the expert witness’ testimony regarding the
manufacturing of methamphetamine, provided the jury with ample evidence to convict defendant
notwithstanding the statement. Because the evidence against defendant was strong, any error in
the admission of statements made by defendant during his phone call with Aspinall was not
outcome determinative. Jones, 468 Mich at 355, citing Carines, 460 Mich at 763.
Further, because Cook’s testimony regarding the phone call was admissible under MRE
801(d)(2)(E) and not outcome determinative, defendant’s concurrent claim of ineffective
assistance of counsel based on counsel’s failure to object to the introduction of this evidence also
fails. See People v Rodriguez, 251 Mich App 10, 38; 650 NW2d 96 (2002).
We affirm.
/s/ Richard A. Bandstra
/s/ Karen M. Fort Hood
/s/ Alton T. Davis
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