PEOPLE OF MI V IRA V WILSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 6, 1998
Plaintiff-Appellee,
v
No. 196806
Recorder’s Court
LC No. 96-001559
IRA V. WILSON,
Defendant-Appellant.
Before: Hoekstra, P.J., and Wahls and Gribbs, JJ.
PER CURIAM.
Following a bench trial, defendant was convicted of possession with intent to deliver less than
fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), and possession of
marijuana, MCL 333.7403(2)(d); MSA 14.15(7403)(2)(d). He was sentenced to two to twenty
years’ imprisonment as a second habitual offender, MCL 769.10; MSA 28.1082. Defendant now
appeals as of right. We affirm.
Defendant first argues that the trial court committed reversible error when it failed to make an
adequate and independent inquiry into his waiver of his constitutional right to a jury trial, and
compounded its error in failing to obtain an independent waiver for the habitual offender charge. We
disagree.
MCR 6.402 governs waiver of a jury trial, and provides, in part:
Before accepting a waiver, the court must advise the defendant in open court of
the constitutional right to trial by jury. The court must also ascertain, by addressing the
defendant personally, that the defendant understands the right and that the defendant
voluntarily chooses to give up that right and to be tried by the court. A verbatim record
must be made of the waiver proceeding.
MCR 6.402 supersedes MCL 763.3; MSA 28.856, so that a written waiver of the right to trial by jury
is no longer required. People v Reddick, 187 Mich App 547, 549; 468 NW2d 278 (1991).
Nonetheless, in the present case, defendant completed a written waiver of trial by jury.
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The transcript from the waiver hearing indicates that defendant: (1) knew that he had a right to
a jury trial; (2) knew that he was giving up that right; (3) admitted that no one had threatened or
promised him anything in return for giving up that right; and (4) freely and voluntarily gave up that right.
Furthermore, defendant signed a written waiver stating that he had had the opportunity to consult with
his attorney before waiving his rights. This last point is reinforced by defense counsel’s signature on the
same form, under a line that reads: “I have advised the above named defendant of his constitutional
right to a trial by jury.” Under these circumstances, we conclude that defendant understood that he had
a right to a trial by jury, and voluntarily waived that right. Reddick, supra at 550. Defendant’s
additional argument, that the court also erred in failing to obtain an independent waiver of trial by jury
for the habitual offender charge, is without merit. Defendant had no right to a jury trial on the habitual
offender charge. MCL 769.13; MSA 28.1085; People v Zinn, 217 Mich App 340, 345; 551 NW2d
704 (1996).
Defendant next argues that he was denied effective assistance of counsel because his attorney
failed to move for suppression of evidence seized at the time of his arrest. We disagree.
Because defendant failed to preserve this issue, our review is limited to the record. People v
Johnson, 144 Mich App 125, 129-130; 373 NW2d 263 (1985). There is no evidence in the record
that suggests any impropriety in the seizure of the evidence. Counsel is not ineffective in failing to
present a meritless motion. People v Gist, 188 Mich App 610, 613; 470 NW2d 475 (1991). Thus,
defendant cannot show that he was denied the effective assistance of counsel.
Defendant also argues that there was insufficient evidence to prove his guilt beyond a reasonable
doubt. We disagree.
[T]o support a conviction for possession with intent to deliver less than fifty
grams of cocaine, it is necessary for the prosecutor to prove four elements: (1)
that the recovered substance is cocaine, (2) that the cocaine is in a mixture
weighing less than fifty grams, (3) that defendant was not authorized to possess
the substance, and (4) that defendant knowingly possessed the cocaine with
intent to deliver. [People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992),
amended 441 Mich 1201 (1992).]
“[I]ntent to deliver may be proven by circumstantial evidence and also may be inferred from the amount
of controlled substance possessed.” People v Ray, 191 Mich App 706, 708; 479 NW2d 1 (1991).
Here, a police officer confiscated approximately thirty-three individually wrapped rocks of
cocaine from the floorboard of the front seat of the car in which defendant was sitting. Another officer
had already seen defendant take an item out of the same bag where the rocks were found. Under these
circumstances, the trial court could properly infer an intent to deliver based on defendant’s possession
of a bag containing a large quantity of individually wrapped rocks of cocaine. Ray, supra at 708-709.
The officers’ observations of defendant’s conduct immediately before his arrest provided additional
circumstantial evidence of an intent to deliver. Considering the evidence in the light most favorable to
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the prosecution, there was sufficient evidence to allow the trial court could to find defendant guilty of
possession with intent to deliver beyond a reasonable doubt.
We also conclude that there was sufficient evidence to sustain defendant’s conviction for
possession of marijuana. The offense of possession of a controlled substance requires proof that
defendant had actual or constructive possession of the substance. People v Hellenthal, 186 Mich App
484, 486; 465 NW2d 329 (1990). Constructive possession requires the right to control the narcotic
and knowledge of its presence. Wolfe, supra at 519-520. Because the marijuana was in the same bag
as the cocaine, and considering that the police had seen defendant take at least one item out of the bag,
it is reasonable to conclude that defendant had knowledge of the presence of marijuana in the bag.
Considering this evidence in the light most favorable to the prosecution, we conclude that sufficient
evidence was presented to sustain defendant’s conviction for possession of marijuana.1
Defendant finally argues that no evidence was presented regarding any prior felonies and that,
because the court sentenced him as a second offender, reversal is warranted. We decline to reverse on
this issue. We note that defendant has abandoned this issue on appeal because he has merely stated a
position without supporting authority; it is not up to this Court to discover and then to rationalize the
basis of a party’s claims. People v U S Currency, 158 Mich App 126, 130; 404 NW2d 634 (1986).
Furthermore, defendant failed to provide this Court with a copy of his presentence investigation report.
Thus, this issue is not properly before us.2 People v Oswald, 208 Mich App 444, 446; 528 NW2d
782 (1995); MCR 7.212(C)(7).
Affirmed.
/s/ Joel P. Hoekstra
/s/ Myron H. Wahls
/s/ Roman S. Gribbs
1
While defendant states that there was insufficient evidence to support his convictions, he also appears
to argue that the trial court erred in denying his motion for a directed verdict on the charge of possession
with intent to deliver marijuana, of which he was eventually acquitted. Even were this argument properly
presented, we would conclude that it is without merit. Taken in a light most favorable to the
prosecution, the evidence regarding defendant’s conduct before his arrest was sufficient to allow the trial
court to infer an intent to deliver both the cocaine and the marijuana.
2
We note that the record strongly suggests that there was information in the presentence investigation
report supporting defendant’s conviction as a second offender, and that defense counsel conceded this
point at a bench conference: “The Court has discussed this matter with counsel at bench side. This
information or this enhancement charges a third felony when in fact that appears to be in error. The
Court will find that the defendant, that this is a second felony conviction."
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