PEOPLE OF MI V SCORPION REED
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 27, 2010
Plaintiff-Appellee,
v
No. 291830
St. Clair Circuit Court
LC No. 08-002861-FH
SCORPION REED,
Defendant-Appellant.
Before: MURRAY, P.J., and DONOFRIO and GLEICHER, JJ.
PER CURIAM.
Defendant, Scorpion Reed, appeals as of right his jury trial conviction of possession with
intent to deliver marijuana, MCL 333.7401(2)(d)(iii), and maintaining a drug house, MCL
333.7405(d). Because sufficient evidence supported defendant’s convictions, the trial court did
not err in admitting evidence, and defendant was not denied the effective assistance of counsel at
trial, we affirm.
This case arises from a police investigation, surveillance, and search of 1010 Pine Street,
Apartment 1 in Port Huron on September 4, 2008. After the St. Clair County Sheriff’s
Department Drug Task Force received a tip from a confidential informant, the task force
conducted surveillance of the address to corroborate the tip. Deputy George Maschke performed
surveillance of the address while the team awaited the search warrant for approximately two
hours. Maschke saw defendant return home. He then saw a male in a gold Taurus arrive and
enter the house. The male stayed inside for a minute or two and then left. Just as the Taurus was
leaving, a Tahoe arrived and Maschke watched another male get out of the Tahoe and knock on
the door. Defendant answered the door, the two men engaged in a hand-to-hand transaction, and
then the male returned to the Tahoe and drove away.
Officer Brian Kerrigan testified that once the team obtained the search warrant, the team
breached the door, and he found defendant in the bedroom of the apartment. Kerrigan stated that
he took custody of defendant, explained to him that the police were there pursuant to a narcotics
search warrant, and then read him his rights. Kerrigan testified that defendant waived his rights,
agreed to be interviewed, and was very cooperative with police. Kerrigan asked defendant if
there were any illegal controlled substances in the apartment. Defendant directed Kerrigan to a
cabinet in the living room that he said had about half an ounce of marijuana in it, that it was for
personal use, and that it was the only marijuana in the apartment. In the cabinet drawer, the team
located sandwich-style baggies typically used to package marijuana, a digital scale typically used
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to weigh marijuana for sale, and a bag of marijuana weighing 21.3 grams (approximately ¾ of an
ounce). The marijuana was sitting directly on top of the digital scale. Police also located a total
of five cell phones in the bedroom of the apartment and mail addressed to defendant scattered
around the apartment. Kerrigan testified at trial that during his interview of defendant, defendant
ultimately admitted to selling marijuana to close friends to support his own habit.
Defendant testified on his own behalf at trial. Defendant stated as a result of being shot
in the head in 2004 he suffers constant severe headaches, extreme head pain, and migraines.
Defendant stated that he self medicates with marijuana because it calms him down and deadens
the pain. Defendant denied telling Kerrigan that he would sometimes sell marijuana. Defendant
denied selling drugs and stated that the individuals that came over to his house on the date of the
search were friends that were visiting for reasons other than marijuana. He stated that he only
buys marijuana for personal use, that he buys at least half an ounce of marijuana so it lasts quite
a while, and he has a scale to measure it to be sure he got the amount he paid for.
The jury found defendant guilty of possession with intent to deliver marijuana, MCL
333.7401(2)(d)(iii), and maintaining a drug house, MCL 333.7405(d). Defendant now appeals as
of right.
Defendant argues on appeal that there was insufficient evidence to sustain his convictions
of possession with intent to deliver marijuana and maintaining a drug house. We review a
defendant’s allegations regarding sufficiency of the evidence de novo. People v Herndon, 246
Mich App 371, 415; 633 NW2d 376 (2001). We view the evidence in the light most favorable to
the prosecution to determine whether a rational trier of fact could have found that the essential
elements of the crime were proven beyond a reasonable doubt. Id. However, we will not
interfere with the role of the trier of fact to determine the weight of the evidence or the credibility
of the witnesses. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748, amended 441 Mich
1202 (1992). Satisfactory proof of the elements of the crime can be shown by circumstantial
evidence and the reasonable inferences arising therefrom. People v Carines, 460 Mich 750, 757;
597 NW2d 130 (1999). It is for the trier of fact to determine what inferences fairly can be drawn
from the evidence and the weight to be accorded to those inferences. People v Hardiman, 466
Mich 417, 428; 646 NW2d 158 (2002). All conflicts in the evidence must be resolved in favor of
the prosecution. People v Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997).
A conviction for possession with intent to deliver marijuana requires proof, among other
things, that the defendant knowingly possessed the marijuana and that he knew that the substance
was marijuana. MCL 333.7401(2)(d)(iii); People v Crawford, 458 Mich 376, 389; 582 NW2d
785 (1998). A defendant need not own a controlled substance or have actual physical possession
of it when it is discovered to have “possession” of it. Wolfe, 440 Mich 519-520. “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.” Id. at 524.
Here, viewing the evidence in the light most favorable to the prosecution, we hold that
sufficient evidence connected defendant to the marijuana and he had the intent to sell it. The
police were executing a search warrant that was issued as a result of a tip from a confidential
informant that the task force corroborated by further investigation and surveillance of the
address. Immediately prior to the search, Maschke witnessed an individual walk up to the door
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of defendant’s residence, enter and stay only a very short time, and a second individual engage in
a hand-to-hand transaction with defendant on the porch. At the time of the search, when the
officers arrived, defendant was in the bedroom of the apartment. As the officers were about to
start the search of the apartment, defendant told Kerrigan that there was marijuana in his
residence and exactly where it was in a cabinet in the living room. When the officers opened the
drawer defendant pointed out, they found a plastic bag containing marijuana sitting on top of a
digital scale, and several clear plastic sandwich baggies. Also inside the apartment officers
found various pieces of mail addressed to defendant and five prepaid cell phone, three of which
were dead.
Considering the circumstantial evidence, the reasonable inferences arising therefrom, and
the totality of the circumstances, and resolving all evidentiary conflicts in favor of the
prosecution, there was sufficient evidence to show that defendant possessed the marijuana with
the intent to sell it. There was no evidence presented that anyone else lived in the apartment.
The evidence was sufficient to support a finding that defendant knew that the substance was
marijuana since he identified it as such to police. Based on the packaging of the marijuana, its
proximity to the digital scale, the presence of clear plastic baggies commonly used to package
marijuana for resale, the presence of multiple prepaid cell phones commonly used in narcotics
trafficking, and ample eyewitness police testimony of brief visits to defendant’s residence where
hand-to-hand transactions occurred, it is reasonable to infer defendant possessed the marijuana
with the intent to sell it. In sum, viewed in a light most favorable to the prosecution, the
evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that
defendant possessed the marijuana in the apartment with the intent to sell it.
Likewise, the evidence was sufficient to enable a rational trier of fact to find that
defendant kept or maintained a drug house. “[T]o ‘keep or maintain’ [a drug house] requires
some degree of continuity and . . . the prosecution is required to prove . . . something more than a
single, isolated instance of the proscribed activity.” People v Thompson, 477 Mich 146, 155;
730 NW2d 708 (2007) (quotations and citation omitted). Police found a plastic bag containing
marijuana sitting on top of a digital scale in the same drawer with other clear plastic baggies that
appeared to be for packaging smaller quantities of marijuana. This evidence, along with the
other evidence indicating narcotic trafficking, including eyewitness police testimony of
individuals briefly visiting defendant’s residence and a hand-to-hand transaction occurring on
defendant’s porch was evidence of some degree of continuity. In sum, viewed in a light most
favorable to the prosecution, the evidence was sufficient to enable a rational trier of fact to find
beyond a reasonable doubt that defendant kept or maintained a drug house.
Next, defendant argues that the trial court erred when it allowed Kerrigan’s testimony
that defendant, during his police interview, admitted to him that he sold drugs sometimes to
support his marijuana habit into evidence at trial. We review a trial court’s decision to admit
evidence for an abuse of discretion. People v Ackerman, 257 Mich App 434, 442; 669 NW2d
818 (2003). A trial court abuses its discretion when its decision results in an outcome falling
outside the range of principled outcomes. People v Carnicom, 272 Mich App 614, 616-617; 727
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NW2d 399 (2006). Because defendant did not object at trial, we review this unpreserved error
for plain error affecting defendant’s substantial rights. Carines, 460 Mich at 763-764.
Kerrigan testified that he took custody of defendant, explained to him that the police were
there pursuant to a narcotics search warrant, and then read him his Miranda1 rights. Kerrigan
stated that defendant waived his rights and agreed to be interviewed. At trial, Kerrigan testified
that during the interview defendant insisted the marijuana was for personal consumption, but
after Kerrigan confronted defendant with the possibility that controlled buys were done at his
residence, defendant then admitted that sometimes he sells marijuana to friends to support his
own habit. At trial, defendant denied making that statement to Kerrigan and specifically stated
that he does not sell marijuana and only purchases it for personal use. Defendant’s statement to
Kerrigan after his lawful arrest and waiver of Miranda rights was properly admissible under
MRE 801(d)(2)(A) as that of a party-opponent. Under MRE 801(d)(2)(A), a statement is not
hearsay if it is offered against a party and is the party’s own statement. Defendant has failed to
demonstrate plain error affecting his substantial rights and, therefore, he is not entitled to relief
on this issue.
Even if the trial court had abused its discretion in admitting defendant’s statement, any
error was harmless. An unpreserved nonconstitutional error is presumed harmless and does not
warrant reversal unless it is more probable than not that the error was outcome determinative.
MCL 769.26; People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999). In light of the
substantial amount of evidence establishing defendant’s guilt, he cannot prove that the outcome
of the proceedings would have been different, but for the admission of this statement. Id.
Defendant argues that drug profile evidence was improperly used as substantive evidence
of his guilt at trial. We review this unpreserved claim of error for plain error affecting
defendant’s substantial rights. Carines, 460 Mich at 763-764.
“Drug profile evidence is essentially a compilation of otherwise innocuous characteristics
that many drug dealers exhibit . . . .” People v Murray, 234 Mich App 46, 52; 593 NW2d 690
(1999). Drug profile evidence is not admissible as substantive evidence of a defendant’s guilt.
People v Hubbard, 209 Mich App 234, 241; 530 NW2d 130 (1995). However, in controlled
substance cases, a prosecutor may elicit expert testimony from police officers to explain the
significance of items seized in order to aid the jury’s understanding of the evidence. Murray,
234 Mich App at 52; see also People v Ray, 191 Mich App 706, 708; 749 NW2d 1 (1991) (police
officer’s testimony that the quantity of cocaine in the defendant’s possession and the fact that
cocaine rocks were evenly cut indicated that the defendant intended to sell the cocaine was
admissible to aid the jury in determining the defendant’s intent).
Maschke testified that in drug trafficking, people coming to purchase drugs stay for only
a very short time because the individuals involved in the transaction already know what is
involved. Maschke testified that it is common to use multiple prepaid cell phones in narcotics
trafficking to manage the sales. Maschke testified a digital scale and clear plastic baggies are
1
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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used in narcotics to weigh the marijuana in order to sell it by weight in the clear plastic baggies.
Maschke testified that in Port Huron, the most common quantity of marijuana sold is a dime-bag
of marijuana which fluctuates between one and two grams of marijuana for $10.00. Maschke’s
testimony did not constitute impermissible drug profile evidence. He did not testify, and the
prosecutor did not argue during closing arguments, that because defendant exhibited certain
innocuous characteristics, defendant was trafficking marijuana. Rather, Maschke’s testimony
explained the significance of items seized, and such testimony was permissible. Murray, 234
Mich App at 52; Ray, 191 Mich App 708. Accordingly, there was no plain error in the trial
court’s admission of Maschke’s testimony.
Finally, because defendant has not established that Maschke’s testimony was
impermissible drug profile evidence, we reject his claim that counsel was ineffective for failing
to object to the admission of Maschke’s testimony. Counsel is not ineffective for failing to raise
a futile objection. People v Fike, 228 Mich App 178, 182; 577 NW2d 903 (1998).
Affirmed.
/s/ Christopher M. Murray
/s/ Pat M. Donofrio
/s/ Elizabeth L. Gleicher
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