PEOPLE OF MI V DONNIE RAY WHITE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 20, 1996
Plaintiff-Appellee,
v
No. 185316
Oakland County
LC No. 94-134424
DONNIE RAY WHITE,
Defendant-Appellant.
Before: McDonald, P.J., and Murphy and J.D. Payant,* JJ.
PER CURIAM.
Following a bench trial, defendant was convicted of delivery of less than fifty grams of cocaine,
MCL 333.7401(2)(a)(iv); MSA 14.15(7401(2)(a)(iv), conspiracy to deliver less than fifty grams of
cocaine, MCL 750.157a; MSA 28.354(1), and habitual offender, fourth offense, MCL 769.12; MSA
28.1084. He was sentenced to two terms of two to twenty years in prison to be served consecutively.
Defendant now appeals as of right. We affirm.
The convictions arose out of a July 19, 1994, transaction between Andrew Wurm, an
undercover officer with the Oakland County Narcotics Enforcement Team, and Roseanne Loren.
Wurm had purchased cocaine from Loren on July 18, 1994, and then called her at 3:00 p.m. the next
day to arrange for another sale. He called again at 5:30 p.m. to confirm the sale, and spoke with
defendant. Defendant knew of Wurm’s order and assured him that the package would be there when
he arrived. When Wurm informed defendant that the cocaine he received from Loren the night before
was a gram short, defendant assured Wurm that he would make it right. The transaction between Loren
and Wurm took place later that evening at a residence on Stahalin Street in Southfield with defendant
present. After defendant stated that he had seen an unmarked police car, Loren panicked and ran into
the house. Wurm then told defendant that he only wanted to deal with him and not with Loren, and
defendant told Wurm to call him the next day.
* Circuit judge, sitting on the Court of Appeals by assignment.
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Defendant was acquitted of any involvement in the July 18 transaction but was convicted of one
count of delivery of cocaine and one count of conspiracy to deliver cocaine arising out of the July 19
transaction.
First, defendant argues that there was insufficient evidence of an agreement to support his
conspiracy conviction. We disagree.
In reviewing the sufficiency of the evidence from a bench trial, this Court must consider the
evidence in a light most favorable to the prosecution to determine whether a rational trier of fact could
have concluded that the elements of the crime were established beyond a reasonable doubt. People v
Jacques, 215 Mich App 699, 702-703; 547 NW2d 349 (1996). A trier of fact may make reasonable
inferences from the facts, if the inferences are supported by direct or circumstantial evidence. People v
Legg, 197 Mich App 131, 132; 494 NW2d 797 (1992).
Conspiracy is a mutual agreement, express or implied, between two or more persons, to
commit a criminal act or accomplish a legal act by unlawful means. People v Carter, 415 Mich 558,
567; 330 NW2d 314 (1982); People v Moscara, 140 Mich App 316, 319; 364 NW2d 318 (1985).
In order to establish a conspiracy to commit a crime, the prosecution must prove that the intent to
commit the crime was possessed by more than one individual. People v Atley, 392 Mich 298, 310;
220 NW2d 465 (1974). Direct proof of an agreement is not required, and conspiracy may be proven
by circumstantial evidence and based on inference. Id. at 311.
Viewed in a light most favorable to the prosecution, the evidence was sufficient from which a
rational trier of fact could reasonably have concluded beyond a reasonable doubt that an agreement to
deliver the cocaine to Officer Wurm existed between Loren and defendant. Defendant was present at
the house on July 19 when the transaction between Loren and Wurm occurred. In addition, the July 19
telephone call between defendant and Wurm demonstrated that defendant knew of the proposed order
made by Wurm to Loren. In that same telephone conversation, defendant assured Wurm that he would
make sure that the cocaine delivered was the proper weight. A trier of fact could reasonably infer from
this evidence that an agreement existed between Loren and defendant to deliver cocaine to Officer
Wurm. Therefore, defendant’s conspiracy conviction was supported by the evidence.
Defendant further claims that his conspiracy conviction must be overturned because there was
no evidence of an agreement that began on July 18 and continued until July 19 as alleged in the
information, as the trial court found that the evidence only supported defendant’s involvement on July
19. We disagree. Although the indictment or information must contain the time of the offense “no
variance as to time shall be fatal unless time is of the essence of the offense.” MCL 767.45(1)(b);
MSA 28.985. Because time is not an essential element of the crime of conspiracy, defendant’s
argument is without merit. See People v Taylor, 185 Mich App 1, 8; 460 NW2d 582 (1990).
Finally, defendant contends that the cocaine was improperly admitted at trial because the chain
of custody was not sufficiently established. However, defendant did not object below and, as the
cocaine in question was seized from the July 18 transaction of which defendant was acquitted,
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defendant has not demonstrated that a substantial right has been affected. Therefore, the issue is not
preserved. MRE 103(a)(1); People v Grant, 445 Mich 535, 545; 520 NW2d 123 (1994).
Affirmed.
/s/ Gary R. McDonald
/s/ William B. Murphy
/s/ John D. Payant
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