PEOPLE OF MI V CRAIG GORDON BROWNAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
May 22, 2008
Oakland Circuit Court
LC No. 2004-194664-FH
CRAIG GORDON BROWN,
Advance Sheets Version
Before: Zahra, P.J., and White and O’Connell, JJ.
Defendant appeals as of right his jury trial conviction in the Oakland Circuit Court of
violating MCL 333.7401(2)(b)(ii) (delivery and manufacture of a controlled substance classified
in schedule 1, 2, or 3) and MCL 333.7403(2)(b)(ii) (possession of a controlled substance
classified in schedule 1, 2, or 3).1 The trial court sentenced him to one year of probation, the first
90 days to be served in jail, and $4,200 in costs. The most significant issue presented on appeal
is whether Mich Admin Code, R 338.3122(2) is unconstitutionally vague. We hold it is not.
Rule 338.3122(2) focuses on the possessor’s intent. Possession of an anabolic steroid that is
“intended for administration through implants to cattle” is not illegal. Id. Conversely,
possession of an anabolic steroid intended for human consumption is illegal. We affirm.
I. Basic Facts and Proceedings
Defendant was a police officer with the Almont Police Department and the Brown City
Police Department. Lieutenant Timothy Donnellon of the St. Clair County Sheriff’s Department
testified that in February 2003, he was investigating Brown City Police Officer Albert Geoit for
Some of defendant’s alleged conduct in the instant case led to a previous jury trial conviction in
the Lapeer Circuit Court. There, a jury convicted defendant of willful neglect of duty, MCL
750.478, but acquitted him of three counts of delivery of a controlled substance, MCL
333.7401(2)(b). He was sentenced to 180 days in jail. This Court affirmed, People v Brown,
unpublished opinion per curiam of the Court of Appeals, issued April 7, 2005 (Docket No.
254476), and on May 31, 2005, our Supreme Court denied defendant’s application for leave to
appeal. People v Brown, 472 Mich 922 (2005).
anabolic-steroid use. Donnellon testified that the Geoit investigation led him to investigate
defendant. The search warrants issued in this case indicate that Geoit told the police that
defendant supplied him anabolic steroids.
Donnellon asked Michael Winters, an inspector with the Postal Inspection Service, to
intercept any suspicious parcels addressed to P.O. Box 364, Lakeville, Michigan, which is within
Oakland County. The post office box was registered to defendant, and only defendant had
access to the post office box. On February 28, 2003, a parcel arrived for defendant’s post office
box. Winters requested a federal search warrant to inspect the parcel. After obtaining the
warrant, Winters executed the search himself. The parcel contained ten packages of Finaplix-H,
which the Michigan State Police laboratory confirmed contained Trenbolone. The package did
not contain an applicator for animal injection. At trial, Winters admitted that defendant did not
arrive to pick up the parcel. Winters also admitted that he had previously testified that, in regard
to Trenbolone, “[i]f it’s for veterinary use, its legal.”
On March 1, 2003, Donnellon executed a warrant to search defendant’s residence. The
owner of the building, Gladys Graves, lived on the second story and defendant rented the first
floor. The police found evidence linking defendant to the first floor including a filled-out
employment application and credit cards. In the only first-floor bedroom that appeared to be
lived in, the police found a magazine, “Anabolics 2000,” lying on the bed. In the first-floor
kitchen, the police found a topical anabolic steroid, Testosterone Androgel, which is available by
prescription. The police discovered additional anabolic steroid-related magazines. The police
also found defendant’s credit-card statements reflecting purchases from Websa Co., the source of
the Finaplix-H in the parcel, and Finafarm, a company that sells a kit that makes possible the
human consumption of anabolic steroids (kit). Lapeer County Sheriff Detective Nancy Stimson
recovered such a kit in a garbage bag from defendant’s house. Donnellon ordered a kit from
Finafarm and Stimson testified regarding the similarities between the kit found at defendant’s
residence and the kit ordered by Donnellon. Donnellon also testified that the kit he received was
very similar to the kit found in defendant’s residence.
At trial, Stimson also testified that Graves had a computer upstairs that Graves allowed
the police to search. Stimson brought the computer to Robert Gottschalk, an expert in electronicdata retrieval, for investigation. Gottschalk removed the hard drive and used EnCase forensic
software to make a copy of the hard drive. Gottschalk testified that EnCase software allows
reproduction of all files that have not been overwritten, including Internet files. In particular, he
it created – it created the image, which is a – refer to as a mirror image, is an
exact copy of everything that’s on the hard drive; not only the data but everything
else that’s there. Maybe a file that was deleted at one time. It copies all of the
data off of it.
Gottschalk searched the copied hard drive for anabolic-steroid-related terms, and found
numerous e-mails relating to defendant’s purchases of anabolic steroids.
Donnellon also obtained a warrant to search defendant’s urine for anabolic steroids.
Defendant refused to provide a urine sample several times, but he eventually did so. The sample
was sent to American Institute of Toxicology (AIT). Defendant’s urine sample first was tested
generally for steroids, but not specifically for Trenbolone. The test was negative, but Michael
Evans, founder and director of AIT, later retested defendant’s urine specifically for Trenbolone,
and it was positive.
Evans, an expert in toxicology, testified that Trenbolone is used in veterinary practices to
increase muscle mass in cattle. A special syringe injects a pencil-like Trenbolone pellet into
cattle to be slowly released. He testified that Trenbolone can be extracted from the pellets with a
kit; specifically, a conversion kit like that received by Donnellon, which is similar to the one
found at defendant’s residence. Evans testified that each Finaplix-H package in defendant’s post
office box contained 20,000 milligrams of Trenbolone, which is between 200 and 400 dosages.
He testified that this amount is more than one human would require. Evans testified that
Trenbolone is inappropriate for use in smaller animals, such as cats and dogs.
Michael Henry, defendant’s friend, testified for the defense. Henry testified that he asked
defendant to order Finaplix-H for Henry’s dog. The jury convicted defendant, and he appeals as
II. Constitutionality of Mich Admin Code, R 338.3122(2)
MCL 333.7401(1), provides:
Except as authorized by this article, a person shall not manufacture, create,
deliver, or possess with intent to manufacture, create, or deliver a controlled
substance, a prescription form, or a counterfeit prescription form. A practitioner
licensed by the administrator under this article shall not dispense, prescribe, or
administer a controlled substance for other than legitimate and professionally
recognized therapeutic or scientific purposes or outside the scope of practice of
the practitioner, licensee, or applicant.
MCL 333.7401(2)(b)(ii) further provides that “[a] person who violates this section as to[,] [a]ny
other controlled substance classified in schedule 1, 2, or 3, except marihuana[,] is guilty of a
felony punishable by imprisonment for not more than 7 years or a fine of not more than
$10,000.00, or both.
Similarly, MCL 333.7403(1), provides that
[a] person shall not knowingly or intentionally possess a controlled substance, a
controlled substance analogue, or a prescription form unless the controlled
substance, controlled substance analogue, or prescription form was obtained
directly from, or pursuant to, a valid prescription or order of a practitioner while
acting in the course of the practitioner’s professional practice, or except as
otherwise authorized by this article.
MCL 333.7403(2)(b)(ii) further provides that “[a] person who violates this section as to”
[a] controlled substance classified in schedule 1, 2, 3, or 4, except a controlled
substance for which a penalty is prescribed in subdivision (a), (b)(i), (c), or (d), or
a controlled substance analogue is guilty of a felony punishable by imprisonment
for not more than 2 years or a fine of not more than $2,000.00, or both.
Here, the central question is whether Trenbolone, a drug contained in the Finaplix-H, is a
controlled substance classified in schedule 1, 2, or 3. Rule 338.3122(1), entitled, “Schedule 3;
anabolic steroids; exemptions,” states that,
[u]nless specifically excepted or unless listed in another schedule, any material,
compound, mixture, or preparation that contains any quantity of an anabolic
steroid, including its salts, isomers, and salts of isomers if the existence of such
salts of isomers is possible within the specific chemical designation, is included in
schedule 3. As used in this rule, the term “anabolic steroid” means any of the
following drugs or hormonal substances which are chemically and
pharmacologically related to testosterone, other than estrogens, progestins, and
corticosteroids, and which promote muscle growth[.]
Rule 338.3122(1)(w) then expressly identifies “Trenbolone.”
Rule 338.3122(2) provides that “[a]n anabolic steroid which is expressly intended for
administration through implants to cattle or other nonhuman species and which has been
approved by the United States drug enforcement administration for such administration is
specifically excepted from schedule 3.” Trenbolone is an anabolic steroid that has been
approved by the United States Secretary of Health and Human Services for administration
through implants to cattle or other nonhuman species. 21 CFR 1308.
Defendant argues that Rule 338.3122 is unconstitutionally void for vagueness because it
fails to provide fair notice of prohibited conduct. Specifically, defendant claims that because the
Michigan Board of Pharmacy exempted Trenbolone in Rule 338.3122(2), the possession or
intent to deliver it became lawful.
“‘To determine whether a statute is void for vagueness, a court examines the entire text of
the statute and gives the statute’s words their ordinary meanings.’” People v Pierce, 272 Mich
App 394, 398; 725 NW2d 691 (2006), quoting People v Piper, 223 Mich App 642, 646; 567
NW2d 483 (1997). A statute is unconstitutionally vague if persons of ordinary intelligence must
necessarily guess at its meaning. Pierce, supra at 398-399 citing People v Munn, 198 Mich App
726, 727; 499 NW2d 459 (1993).
Here, the plain and unambiguous language of Rule 338.3122(1)(w) expressly identifies,
“Trenbolone,” as a prohibited schedule 3 controlled substance. Rule 338.3122(2) exempts
“Trenbolone” as the schedule 3 controlled substance only if “expressly intended for
administration through implants to cattle or other nonhuman species . . . .” There is no
guesswork in applying Rule 338.3122 because it plainly and unambiguously identifies
Trenbolone as a controlled substance. Trenbolone is excluded from being a controlled substance
only if it is expressly intended to be used or administered “through implants to cattle or other
nonhuman species . . . .” Thus, defendant’s argument that Rule 338.3122 is facially
unconstitutional for vagueness is without merit.
The dissent concludes that Rule 338.3122(2) is void for vagueness, reasoning that a
person of ordinary intelligence cannot read the pertinent statutory and regulatory provisions and
conclude that when Trenbolone is in a form not intended for human consumption, its possession
can be illegal. The dissent, in our view, erroneously focuses on the physical form of the drug,
not the possessor’s intent when possessing the drug. We do not conclude that such a reading of
the regulation is reasonable. None of the pertinent statutory or regulatory provisions supports the
conclusion that the legality of possessing Trenbolone turns on its physical form at the time it is
possessed. Rather, Rule 338.3122(2) focuses on the possessor’s intent. Possession of an
anabolic steroid that is “intended for administration through implants to cattle” is not illegal. Id.
Conversely, possession of an anabolic steroid intended for human consumption is illegal.2
Moreover, Rule 338.3122 is not void for vagueness as applied to this case. The trial
court here specifically instructed the jury that, “the substance at issue in this case is Trenbolone,
which is a controlled substance unless it is ‘expressly intended for administration through
implant[s] to cattle or other non-human species.’” These instructions accord with Rule
338.3122, and, therefore, defendant’s challenge must be rejected.
III. Search Warrants
Defendant next claims that he was subjected to six search warrants in violation of the
Fourth Amendment of the United States Constitution and Const 1963, art 1, § 11. The six search
warrants provided access to: (1) a urine sample; (2) defendant’s medical records; (3) defendant’s
post office box; (4) defendant’s residence; (5) records from Websa Co.; and (6) records from
Here, several courts have already reviewed all but the search warrant for defendant’s
urine, which was not raised in the previous appeal. In the instant case, the trial court concluded
that collateral estoppel prevented defendant from further challenging the validity of the
remaining search warrants. We agree with the trial court.
In People v Brown, unpublished opinion per curiam of the Court of Appeals, issued April
7, 2005 (Docket No. 254476), this Court expressly rejected defendant’s claims that the instant
search warrants, except the one for defendant’s urine sample, were invalid. Our Supreme Court
subsequently denied defendant’s application for leave to appeal. People v Brown, 472 Mich 922,
The prosecution must establish the possessor’s intent, regardless of the physical form of the
drug. Here, the overwhelming circumstantial evidence in this case is that defendant was using
Trenbolone not on cattle or some other nonhuman species. Rather, the evidence supports the
conclusion that defendant was ordering Finaplix-H to extract Trenbolone for human
The doctrine of collateral estoppel applies to criminal cases. Ashe v Swenson, 397 US
436, 443; 90 S Ct 1189; 25 L Ed 2d 469 (1970). Collateral estoppel bars relitigation of an issue
in a subsequent, different litigation between the same parties where the prior proceeding
culminated in a valid, final judgment and the issue was both actually litigated and necessarily
determined. People v Gates, 434 Mich 146, 154; 452 NW2d 627 (1990). Collateral estoppel
only applies if the issue was necessarily determined by the judgment in the prior proceeding. Id.
at 158. “An issue is necessarily determined only if it is ‘essential’ to the judgment.” Id.
“Collateral estoppel applies only where the basis of the prior judgment can be ascertained
clearly, definitely, and unequivocally.” Id.
Here, there is no dispute that the validity of the instant search warrants, except the
warrant for the urine sample, were previously litigated and necessarily determined. Further,
defendant was afforded the opportunity and indeed participated in litigating the search warrants
in the Ingham Circuit Court. In addition, Supreme Court precedent indicates that the Ingham
County Prosecutor and the Oakland County Prosecutor are the same party for purposes of
collateral estoppel, because they are functionally equivalent and “creatures of the state[,] and
thus should be considered to be the same party.” See Gates, supra at 156.
Defendant also claims that the search of his urine was unconstitutional because the
warrant was stale and contained inadequate facts, i.e., “bare bones.” “‘A search warrant should
be upheld if a substantial basis exists to conclude that there is a fair probability that the items
sought will be found in the stated place.’” People v Whitfield, 461 Mich 441, 444; 607 NW2d 61
(2000), quoting People v Whitfield, unpublished memorandum opinion of the Court of Appeals,
issued September 25, 1998 (Docket No. 207229). “‘The reviewing court should ask whether a
reasonably cautious person could have concluded that there was a substantial basis for the
finding of probable cause.’” Id. “‘The underlying affidavit must be read in a common sense and
realistic manner . . . .’” Id. In reviewing a decision to suppress, this Court reviews the trial
court’s findings of fact for clear error and will uphold those findings unless left with a definite
and firm conviction that a mistake was made. People v Taylor, 253 Mich App 399, 403; 655
NW2d 291 (2002). This Court reviews de novo the trial court’s ultimate ruling on the
defendant’s motion to suppress. Id.
Generally, if evidence is unconstitutionally seized, it must be excluded from trial.
Exclusion of improperly obtained evidence serves as a deterrent to police misconduct, protects
the right to privacy, and preserves judicial integrity. Terry v Ohio, 392 US 1, 12-13; 88 S Ct
1868; 20 L Ed 2d 889 (1968). “It is settled law that probable cause to search must exist at the
time the search warrant is issued and that probable cause exists when a person of reasonable
caution would be justified in concluding that evidence of criminal conduct is in the stated place
to be searched.” People v Russo, 439 Mich 584, 606-607; 487 NW2d 698 (1992) (citations
omitted). The passage of time is a valid consideration in deciding whether probable cause exists.
The measure of the staleness of information in support of a search warrant rests on the totality of
the circumstances, including the criminal, the thing to be seized, the place to be searched, and the
character of the crime. Id. at 605-606; People v Sobczak-Obetts, 253 Mich App 97, 108; 654
NW2d 337 (2002).
Defendant claims that there is no evidence that he had recently used Trenbolone. The
affiant averred that on February 19, 2003, Donnellon indicated that Geoit admitted purchasing
steroids on three occasions from defendant. Donnellon informed the affiant that defendant
instructed Geoit on how to administer anabolic steroids. Further, Donnellon indicated to the
affiant that Geoit’s home had been searched and that anabolic steroids were found. The affiant
also averred that Almont Police Chief Eugene Bruns indicated that he had known defendant for
three years, and that during the first year defendant injected himself with insulin to treat diabetes.
However, Bruns indicated that defendant later required an internally installed insulin pump to
regulate his blood sugar, and that defendant had increased muscle his bulk and experienced
mood swings. The affiant learned from Dr. Russell Bush that anabolic-steroid use by a diabetic
causes unstable blood sugar and could cause the need for an insulin pump. The affiant averred
that she had obtained information indicating that steroids remain in the human body two weeks
after use. The affiant last averred that, in her 28 years of police experience, she has observed
that drug traffickers also tend to use the drugs that they sell.
Here, a substantial basis existed to conclude that there was a fair probability that anabolic
steroids would be found in defendant’s urine. Defendant’s knowledge of steroids, his sale of
steroids, and his promotion of steroid use provided a substantial basis to conclude that defendant
was involved with steroids. Defendant’s increased muscle mass and mood swings along with his
need of an insulin regulator, which could be related to steroid use, supported the conclusion that
defendant had been using steroids for some time. That the police discovered steroids in Geoit’s
home indicates that defendant may have also had possession of steroids. Given defendant’s
knowledge of steroids, use of steroids, and likely possession of steroids, a reasonably cautious
person could have concluded that there was a substantial basis for the finding of probable cause.
Moreover, reversal is not required because defendant has failed to show how evidence of
his positive urine test affected the outcome of the trial. Consistent with the trial court’s jury
instruction, the prosecution used the evidence for the limited purpose of challenging defendant’s
assertion that he purchased the steroids for Henry to give to his dog. However, the prosecution
presented evidence that defendant purchased the steroids for personal use. Specifically, the
prosecution presented evidence of used steroid kits found in defendant’s garbage, numerous emails suggesting his steroid use, his statement upon arrest that Finaplix-H was legal, and his sale
of steroids to Geoit. Taken independently or in combination, this evidence provides
overwhelming evidence that defendant did not purchase Trenbolone for Henry to give to his dog.
Thus, assuming that defendant’s positive steroid test result was improperly admitted at trial to
impeach Henry, reversal is nonetheless not required because overwhelming evidence was
presented to put Henry’s credibility in question.
IV. Search of Defendant’s Computer
Defendant argues that the police violated his Fourth Amendment rights by searching his
password-protected e-mail files with the consent of the computer’s owner, who had allowed
defendant to use the computer.
US Const, Am IV, and Const 1963, art 1, § 11 guarantee the right of the people to be free
from unreasonable searches and seizures. People v Borchard-Ruhland, 460 Mich 278, 293-294;
597 NW2d 1 (1999). However, this right is personal and may not be invoked by third parties.
People v Zahn, 234 Mich App 438, 446; 594 NW2d 120 (1999). For an individual to assert
standing to challenge a search, the individual must have had a legitimate expectation of privacy
in the place or location searched, which expectation society recognizes as reasonable. People v
Powell, 235 Mich App 557, 560; 599 NW2d 499 (1999). The defendant has the burden of
establishing standing, People v Lombardo, 216 Mich App 500, 505; 549 NW2d 596 (1996), and
in deciding the issue, the court should consider the totality of the circumstances. People v Smith,
420 Mich 1, 28; 360 NW2d 841 (1984). “‘Factors relevant to the determination of standing
include ownership, possession and/or control of the area searched or item seized; historical use
of the property or item; ability to regulate access; the totality of the circumstances surrounding
the search; the existence or nonexistence of a subjective anticipation of privacy; and the
objective reasonableness of the expectation of privacy considering the specific facts of the
case.’” Powell, supra at 563 (citations omitted).
Here, the record reflects that defendant did not own the computer or the residence in
which it was located. Although he was allowed access to the computer, there is no evidence that
he had a right to use the computer and there is no evidence that he could regulate others’ access
to the computer. Indeed, Graves’s children and grandchildren used the computer.
Further, even if defendant had standing to challenge the police’s search of the computer,
there is no Fourth Amendment violation because Graves expressly consented to the search.
Searches and seizures conducted without a warrant are unreasonable per
se, subject to several specifically established and well-delineated exceptions.
Schneckloth v Bustamonte, 412 US 218; 93 S Ct 2041; 36 L Ed 2d 854 (1973);
People v Champion, 452 Mich 92; 549 NW2d 849 (1996).
One established exception to the general warrant and probable cause
requirements is a search conducted pursuant to consent. Schneckloth, supra at
219. [Borchard-Ruhland, supra at 293-294.]
Generally, that consent must come from the person whose property is being searched or from a
third party who possesses common authority over the property. Illinois v Rodriguez, 497 US
177, 181; 110 S Ct 2793; 111 L Ed 2d 148 (1990). “Common authority” is based “on mutual use
of the property by persons generally having joint access or control for most purposes . . . .”
United States v Matlock, 415 US 164, 171 n 7; 94 S Ct 988; 39 L Ed 2d 242 (1974). Further, a
third party without actual authority to consent to a search may render a search valid if the police
officer’s belief in the authority to consent was objectively reasonable. Rodriguez, supra; People
v LaBelle, 273 Mich App 214, 221-222; 729 NW2d 525 (2006). However, the consent of a third
party does not render a search valid if the other party is present and expressly objects to the
search. Georgia v Randolph, 547 US 103, 106; 126 S Ct 1515; 164 L Ed 2d 208 (2006); People
v Lapworth, 273 Mich App 424, 427; 730 NW2d 258 (2006). Although a police officer may not
remove someone from the premises for the purpose of preventing an objection, the officer is not
required to locate an absent person to obtain the person’s consent. Id. at 427-428.
Here, there is no dispute that the computer was located in Graves’s separate residence. In
his brief on appeal and Standard 4 brief, Administrative Order No. 2004-6, Standard 4, defendant
indicates that he was handcuffed in his residence when Graves consented to the search of the
computer. Thus, defendant was not present in Graves’s residence to object, and Graves’s
consent therefore remains valid.
Defendant also argues3 that Graves’s consent was invalid because his e-mail account was
protected by a password. He specifically argues that “even though the files were allegedly
accessed using the computer of Ms. Graves the police had no right to enter those password
protected files without a search warrant.” In making this argument, defendant claims the
prosecution misled the trial court by representing that “anyone, anyone can use – open up that
computer and found the information.” Defendant concludes that “[t]his ruling could only have
been based on the false information that anyone could log onto the computer and view the
Defendants e-mail password protected files.”
Police Officer Robert Gottchalk, an expert in the field of retrieving electronic data,
testified that after he received the computer, he removed the hard drive, and used EnCase
forensic software to make a copy of the hard drive. He testified that EnCase software allows
reproduction of all files that have not been overwritten, including Internet files. In particular, he
it created – it created the image, which is a – refer to as a mirror image, is an
exact copy of everything that’s on the hard drive; not only the data but everything
else that’s there. Maybe a file that was deleted at one time. It copies all of the
data off of it.
He testified that he searched the copied hard drive for steroid-related terms and found several
documents, including e-mails that reference the purchase of steroids.
Few cases have yet discussed the propriety of EnCase software. In United States v
Andrus, 483 F3d 711 (CA 10, 2007), the defendant’s father consented to the search of a
computer in the defendant’s bedroom. Id. at 713. The police used EnCase software to directly
access the hard drive without first determining the need for a user name or password. Id. at 713714. There was testimony that someone without forensic equipment would need the defendant’s
user name and password to access files stored within the defendant’s user profile. Id. at 714 n 1.
The court indicated that “[t]he critical issue in our analysis is whether, under the totality
of the circumstances known to [the police], these officers could reasonably have believed [the
defendant’s father] had authority to consent to a search of the computer. Phrased in the negative,
we must ask ‘whether the surrounding circumstances could conceivably be such that a
reasonable person would doubt [the defendant’s father’s consent] and not act upon it without
further inquiry.’” Id. at 720 (citations omitted). The court then noted that, “[i]f the
circumstances reasonably indicated [the defendant’s father] had mutual use of or control over the
computer, the officers were under no obligation to ask clarifying questions.” Id. Here, there is
no dispute that Graves had control, if not exclusive control, over the computer. Accordingly, the
officers were under no obligation to ask whether defendant’s files were protected by a password.
Thus, defendant’s claim that his Fourth Amendment rights were violated must be rejected.
Defendant first raised this argument after his conviction.
V. Prosecutorial Misconduct
Generally, a claim of prosecutorial misconduct is a constitutional issue that is reviewed
de novo, but a trial court’s factual findings are reviewed for clear error. People v Abraham, 256
Mich App 265, 272; 662 NW2d 836 (2003). Here, however, there was no contemporaneous
objection or request for a curative instruction in regard to any alleged error, and thus review is
limited to ascertaining whether plain error affected defendant’s substantial rights. People v
Callon, 256 Mich App 312, 329; 662 NW2d 501 (2003).
The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial. People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007); People v Erb, 48
Mich App 622, 631; 211 NW2d 51 (1973). The defendant bears the burden of demonstrating
that such an error resulted in a miscarriage of justice. People v Brownridge (On Remand), 237
Mich App 210, 216; 602 NW2d 584 (1999).
Defendant first claims that the prosecutor committed misconduct by introducing evidence
that defendant’s urine tested positive for Trenbolone. However, defendant fails to make clear in
the argument section of his brief on appeal that it was a different prosecutor in a previous trial
who had agreed not to introduce this evidence. Although the lower-court record indicates that
the current prosecutor knew of that agreement, the lower-court record does not indicate that the
current prosecutor accepted the previous prosecutor’s agreement with defendant. Defendant has
not provided a legal basis that would require the current prosecutor to adhere to an agreement
reached in a separate trial between the previous prosecutor and defendant. Further, all the cases
on which defendant relies to support his claim that he relied to his detriment on the previous
prosecutor’s agreement involve the prosecution of one case, not a subsequent and independent
prosecution. Thus, defendant’s claim is rejected in this regard.
Defendant next argues that the prosecutor improperly vouched for expert witness Evans.
Specifically, defendant claims that the prosecutor implied that Evans was reputable. Defense
counsel had called Evans’s credibility into question during closing arguments by suggesting that
Evans concocted a positive steroid test in his “fancy lab” after the first test was negative. A
prosecutor may fairly respond to an issue raised by the defendant. People v Fields, 450 Mich 94,
110-111; 538 NW2d 356 (1995). Here, the lower-court record indicates that the prosecutor
merely responded to defense counsel’s claim by arguing that Evans was reputable. Further,
because Evans was qualified as an expert witness, the lower-court record supports the
prosecutor’s argument that Evans was reputable. Accordingly, defendant’s claim is without
Defendant also argues that the prosecutor twice improperly told the jury that defendant
could be guilty of possession of anabolic steroids because he had the ability to access it.
Prosecutorial comments must be read as a whole and evaluated in light of defense arguments and
the relationship they bear to the evidence admitted at trial. People v Brown, 267 Mich App 141,
152; 703 NW2d 230 (2005). Viewing the prosecutor’s statements in context and as a whole, it is
clear that the prosecutor properly argued that evidence presented at trial allowed the jury to draw
an inference of defendant’s possession. Defendant’s claim in this regard is without merit.
VI. Directed Verdict
Defendant argues that the trial court erred in denying his motion for a directed verdict on
the charge of possession with intent to deliver controlled substances. He specifically claims that
there was insufficient evidence of possession to submit the charge to the jury.
“When reviewing a trial court’s decision on a motion for a directed verdict, this Court
reviews the record de novo to determine whether the evidence presented by the prosecutor,
viewed in the light most favorable to the prosecutor, could persuade a rational trier of fact that
the essential elements of the crime charged were proved beyond a reasonable doubt.” People v
Aldrich, 246 Mich App 101, 122; 631 NW2d 67 (2001).
The element of knowing possession with intent to deliver has two components:
possession and intent. People v Wolfe, 440 Mich 508, 519; 489 NW2d 748 (1992). Actual
physical possession is not required to meet the possession element. Id. at 519-520. Instead,
possession may be either actual or constructive. People v Nunez, 242 Mich App 610, 615; 619
NW2d 550 (2000). Constructive possession of an illegal substance signifies knowledge of its
presence, knowledge of its character, and the right to control it. Id. Because it is difficult to
prove an actor’s state of mind, only minimal circumstantial evidence is required. People v
McRunels, 237 Mich App 168, 181; 603 NW2d 95 (1999). Circumstantial evidence and the
reasonable inferences that arise from the evidence can constitute satisfactory proof of possession.
Nunez, supra at 615-616. Circumstantial evidence that a defendant had the exclusive control or
dominion over property on which contraband narcotics are found is sufficient to establish that the
defendant constructively possessed the narcotics. Wolfe, supra at 521.
Here, the trial court properly denied defendant’s request for a directed verdict on the
charge of possession with intent to deliver controlled substances. Sufficient evidence was
presented to permit a rational trier of fact to conclude that defendant knew of the Trenbolone,
knew of its character, and had the right to control it. Defendant’s post office box contained
Trenbolone. Donnellon testified that the Finaplix-H sent to defendant’s post office box was
shipped from Websa Co., a company from which defendant had made credit-card purchases.
Winters testified that defendant could control access to his post office box. There were 10
packages of Finaplix-H, but no evidence of any device used to inject animals with Finaplix-H.
On the other hand, the police found materials in defendant’s garbage used to convert Finaplix-H
for human consumption. Further, Donnellon testified that he explained to defendant that “the
matter at hand was criminal, and the reason it was criminal was because we had recovered these
steroids from his post box.” Donnellon testified that defendant responded stating, “Oh, the
Fin[a]plix.” Defendant then indicated to Donnellon that “he had ordered this material over the
Internet and that it was legal.”
The evidence indicates that defendant had the Finaplix-H delivered to the post office box
and had control of the Finaplix-H. Evidence also indicates that there was no device to inject
animals with Finaplix-H, but that defendant had materials to convert Finaplix-H for human
consumption. There is sufficient evidence for a rational jury to conclude that defendant had
constructive possession of a controlled substance. The trial court properly denied defendant’s
motion for a directed verdict.
VII. Reimbursement of Prosecution Costs
Defendant argues that the trial court erred in imposing costs under MCL 771.3 to
reimburse the prosecution’s expense of an expert witness at trial.
Statutory interpretation is a question of law considered de novo on appeal. People v
Davis, 468 Mich 77, 79; 658 NW2d 800 (2003).
At sentencing, the trial court stated that defendant must pay a “$60.00 criminal victim’s
rights fee, probation supervision fees at the rate of $40.00 per month for a total of $480.00, state
costs of $120.00; court costs of $3000.00.” The trial court further stated, “I’m going to require
you to make restitution in this case, but the restitution I’m going to set at $5,000.00.”
At a later hearing, defendant challenged as improper restitution the $5,000 cost of the
prosecution’s expert witness. The trial court indicated that, “[w]ell, I’m going to deny it under
the restitution statute.” The trial court then stated, “[B]ut under the probationary statute I think
it’s allowed. Now, however, I still have a right to look at the, at the request and see if it’s
reasonable.” The trial court then reduced the expert’s fees to only include court time. The trial
court ordered that “defendant must pay the amount of $4,200.00 as a condition of Probation
pursuant to MCL 771.3(5) as representing the costs incurred by the People in hiring an expert
witness for Defendant’s trial.”
MCL 771.3(2)(c) provides that, “[a]s a condition of probation, the court may require the
probationer to . . . [p]ay costs pursuant to subsection (5).” MCL 771.3(5) states that, “[i]f the
court requires the probationer to pay costs under subsection (2), the costs shall be limited to
expenses specifically incurred in prosecuting the defendant or providing legal assistance to the
defendant and supervision of the probationer.” Here, there is no real dispute that expert witness
costs were “expenses specifically incurred in prosecuting the defendant . . . .” Thus, the costs
were properly awarded.
Defendant also challenges the amount of the costs imposed.
MCL 771.3(6), provides:
If the court imposes costs under subsection (2) as part of a sentence of
probation, all of the following apply:
(a) The court shall not require a probationer to pay costs under subsection
(2) unless the probationer is or will be able to pay them during the term of
probation. In determining the amount and method of payment of costs under
subsection (2), the court shall take into account the probationer’s financial
resources and the nature of the burden that payment of costs will impose, with due
regard to his or her other obligations.
Defendant argues, in this regard, that the trial court did not comply with MCL 771.3
because it failed to determine if defendant could afford to pay the costs. However, the trial court
had previously addressed defendant’s concern. Defendant argued that MCL 771.3 “specifically
states the Court must take into account when assessing the fines and fees the person’s financial
status at that time and during . . . .” The trial court interjected and stated that “Excuse me. And I
also can take into consideration your potential for employment.” Here, the trial court specifically
concluded that defendant’s decision not to work full-time but to go to school full-time resulted in
his inability to pay. The trial court properly considered defendant’s ability to pay under the
statute, and concluded defendant could pay if he chose to do so. Therefore, the trial court did not
err in imposing costs under MCL 771.3 to reimburse the prosecution’s expense of an expert
witness at trial.
VIII. Issues Raised in Defendant’s Standard 4 Brief on Appeal
A. Effective Assistance of Counsel
Because defendant did not raise this issue in a motion for a new trial or request for an
evidentiary hearing pursuant to People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973),
our review is limited to mistakes apparent from the record. People v Mack, 265 Mich App 122,
125; 695 NW2d 342 (2005).
The denial of effective assistance of counsel is a mixed question of fact and constitutional
law, which are reviewed, respectively, for clear error and de novo. People v LeBlanc, 465 Mich
575, 579; 640 NW2d 246 (2002).
To establish a claim of ineffective assistance of counsel, a defendant must
show that counsel’s performance fell below an objective standard of
reasonableness and that, but for defense counsel’s errors, there was a reasonable
probability that the result of the proceeding would have been different. People v
Stanaway, 446 Mich 643, 687-688; 521 NW2d 557 (1994). A defendant must
affirmatively demonstrate that counsel’s performance was objectively
unreasonable and so prejudicial as to deprive him of a fair trial. People v Pickens,
446 Mich 298, 303; 521 NW2d 797 (1994). The defendant must also overcome
the presumption that the challenged action might be considered sound trial
strategy. People v Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991),
citing Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674
(1984). [People v Knapp, 244 Mich App 361, 385-386; 624 NW2d 227 (2001).]
Defendant in his Standard 4 Brief argues defense counsel was ineffective for the
following 10 reasons: (1) defense counsel stipulated regarding the “statutory interpretation” of
Rule 338.3122(2); (2) defense counsel failed to challenge the trial court’s denial of the motion to
suppress Graves’s computer records; (3) defense counsel failed to introduce exculpatory
evidence in the form of a private investigator’s report; (4) defense counsel failed to challenge the
issue of Graves’s consent to search; (5) defense counsel failed to challenge the trial court’s
disregard of MCR 6.419 and MCR 6.431; (6) defense counsel failed to file postjudgment
challenges to the rulings regarding restitution, fines, and fees; (7) defense counsel failed to
challenge the trial court’s failure to provide defendant the presentence investigation report
(PSIR) one day before sentencing; (8) defense counsel failed at the time of sentencing to correct
the trial court’s failure to provide defendant the PSIR one day before sentencing; (9) defense
counsel failed to object to the jury instruction that concluded Finaplix-H was a controlled
substance; and (10) defense counsel failed to object to any of the prosecution’s egregious
Defendant’s first claim of error is without merit for the reasons stated in part I of this
opinion. Defendant’s second claim of error is without merit for the reasons stated in part III of
this opinion. Defendant’s third claim of error is without merit because defendant wholly fails to
address the merits of this claim and does not mention the private investigator’s report in the
argument section of his brief on appeal. A defendant must affirmatively demonstrate that
counsel’s performance was objectively unreasonable and so prejudicial as to deprive the
defendant of a fair trial. Pickens, supra at 303. Defendant here fails to do so. Defendant’s
fourth claim of error is without merit because Graves’s testimony at the preliminary examination
expressly indicates that she consented to the search of the computer by the police. Nothing in the
lower-court record indicates otherwise. It is well established that defense counsel is not
ineffective for failing to pursue a futile motion. Mack, supra at 130. Defendant’s fifth claim of
error is without merit for the reasons stated in part X of this opinion. Defendant’s sixth claim of
error is without merit for the reasons stated in part VII of this opinion. Defendant’s seventh and
eighth claims of error are without merit because defendant fails to address the merits of the
claims, and further fails to articulate prejudice arising from him not having a PSIR one day
before sentencing. Defendant’s ninth claim of error is without merit for the reasons stated in part
II of this opinion. Finally, defendant’s tenth claim of error is without merit for the reasons stated
in part V, of this opinion.
In short, defendant has failed to establish ineffective assistance of counsel in any regard.
B. Violation of Garrity
Defendant next claims that his rights under Garrity v New Jersey, 385 US 493; 87 S Ct
616; 17 L Ed 2d 562 (1967), were violated.
In Garrity, supra at 500, the United States Supreme Court held that self-incriminatory
statements from a law-enforcement officer procured under the threat of discharge could not be
used in subsequent criminal proceedings against the declarant. Essentially, a Garrity hearing
allows “the interviewee to answer questions with the knowledge that any statements elicited
therein will not be used against him in criminal proceedings.” Lenawee Co Sheriff v Police
Officers Labor Council, 239 Mich App 111, 115 n 2; 607 NW2d 742 (1999).
Here, defendant claims that evidence procured during a Garrity interview was used as the
basis for the affidavit leading to the search warrant to seize defendant’s medical records. At the
interview, defendant signed a form indicating that, “any information discovered as a result of the
interview would not be used against [defendant] in any criminal case.” During the interview,
defendant purportedly identified his physician, Dr. Hartz, and indicated that Dr. Hartz prescribed
him Androgel. The search warrant avers:
Your affiant, in contact with Lt. Donnellon, has learned that the family
doctor of Craig Gordon Brown is Dr. Hartz at the Lakeside Medical Group in
Oxford. That Craig Brown claims to have seen Dr. Hartz on 2-21-03 and
obtained a prescription for the steroid Androgel which he uses for a disorder of
Specifically, defendant argues that during his Garrity interview, under threat of termination of
employment, he was required to divulge that his physician, Dr. Hartz, prescribed him a
testosterone steroid. Defendant claims that because this information was used as the basis for the
affidavit leading to the search warrant to seize defendant’s medical records, his Garrity rights
Defendant has failed to show that any evidence procured during his Garrity interview
was used against him. Defendant admits, in his Standard 4 brief, that his “actual Garrity
statements were not specifically used against [him], per-se, used at trial.” Defendant notes that
the prosecutor mentioned Androgen at trial, but there was no objection and defendant does not
claim error with regard to the prosecutor’s mentioning of Androgen.
Defendant’s primary argument is that although his Garrity “statements were not used
against him, per-se, at trial . . . the statements were used as the basis for the affidavit leading to
the search warrant to seize [defendant’s] medical records for the purpose of introducing evidence
derived thereof against [defendant] at a ‘criminal proceeding.’” However, defendant fails to
identify any evidence presented at trial that resulted from the search warrant to seize defendant’s
medical records. In other words, defendant fails to identify record evidence gleaned from his
medical file that was used as evidence against him. Thus, while defendant’s argument that the
use of his Garrity statements to secure a search warrant may have merit, defendant does not
show that any of his Garrity statements or, more relevant to his claim, that the fruit of his Garrity
statements, were used against him in this prosecution.
C. Posttrial Motions
Whether to grant a new trial is in the trial court’s discretion, and its decision will not be
reversed absent an abuse of that discretion. People v Cress, 468 Mich 678, 691; 664 NW2d 174
(2003). An abuse of discretion occurs when the result is outside the range of principled
outcomes. Barnett v Hidalgo, 478 Mich 151, 158; 732 NW2d 472 (2007).
MCR 6.419(E) states that, “The court must state orally on the record or in a written ruling
made a part of the record its reasons for granting or denying a motion for a directed verdict of
acquittal and for conditionally granting or denying a motion for a new trial.” Likewise, MCR
On the defendant’s motion, the court may order a new trial on any ground
that would support appellate reversal of the conviction or because it believes that
the verdict has resulted in a miscarriage of justice. The court must state its
reasons for granting or denying a new trial orally on the record or in a written
ruling made a part of the record.
Defendant argues in his Standard 4 brief that the trial erred in not stating on the record its
reasons for denying defendant’s motion for mistrial.
At the May 17, 2004, motion hearing, defendant, acting pro se, essentially presented the
same argument presented in defendant’s brief on appeal addressing the constitutionality of Rule
338.3122(2), which we addressed in part II of this opinion. The trial court denied the motion
without further comment; however, the record of the motion hearing indicates that the trial court
had previously considered and rejected all of defendant’s arguments related to this issue.
Further, the trial court’s reasons for denying defendant’s motion can be inferred from its jury
instructions in regard to Trenbolone, which state in relevant part that the substance at issue in
this case is Trenbolone, which is a controlled substance “unless it is expressly intended for
administration through implant to cattle or other non-human species.” Accordingly, the trial
court stated its reasons on the record in regard to the legality of Trenbolone, and reversal is not
D. Remaining Issues
Defendant next reiterates in his Standard 4 brief that the search of his apartment was
unconstitutional. This issue has, however, previously been addressed in part IV, of this opinion
and we conclude defendant is not entitled to relief.
Lastly, defendant argues that he was denied a fair trial through the effect of cumulative
errors. We review this issue to determine if the combination of alleged errors denied defendant a
fair trial. Knapp, supra at 387-388.
The cumulative effect of several errors can constitute sufficient prejudice
to warrant reversal even when any one of the errors alone would not merit
reversal, but the cumulative effect of the errors must undermine the confidence in
the reliability of the verdict before a new trial is granted. People v LeBlanc, 465
Mich 575, 591: 640 NW2d 246 (2002). Absent a establishment of errors, there
can be no cumulative effect of errors meriting reversal. People v Mayhew, 236
Mich App 112, 128; 600 NW2d 370 (1999). [People v Dobek 274 Mich App 58,
106; 732 NW2d 546 (2007).]
Here, defendant has failed to show any error, and thus, his claim of cumulative error must be
O’Connell, J., concurred.
/s/ Brian K. Zahra
/s/ Peter D. O’Connell