PEOPLE OF MI V HUGO F OCHOA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 29, 1999
Plaintiff-Appellee,
v
No. 208796
Recorder’s Court
LC No. 97-002205
HUGO F. OCHOA,
Defendant-Appellant.
Before: White, P.J., and Hood and Jansen, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of conspiracy to deliver 225 grams or more, but
less than 650 grams of cocaine, MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii); MCL
750.157a; MSA 28.354(1), and delivery of 225 grams or more, but less than 650 grams of cocaine,
MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii). Defendant was sentenced to consecutive terms
of ten to twenty years’ imprisonment for each conviction. He appeals as of right and we affirm.
Defendant first argues that insufficient evidence was presented at trial to convict him of
conspiracy to deliver and delivery of cocaine. Specifically, defendant contends that the prosecutor did
not present sufficient evidence of jurisdiction and venue. When reviewing the sufficiency of the evidence
in a criminal case, the court must view the evidence in a light most favorable to the prosecution to
determine whether a rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. People v DeKorte, 233 Mich App 564, 567; 593 NW2d 203 (1999).
First, to properly convict defendant, the prosecutor needed to prove that the trial court had
jurisdiction over defendant. In People v Blume, 443 Mich 476, 480; 505 NW2d 843 (1993), our
Supreme Court extensively examined the issue of jurisdiction. The Court held the following regarding
jurisdiction over a criminal defendant whose crimes were committed outside of Michigan:
The general rule is that jurisdiction is proper only over “offenses as may be
committed within its jurisdiction.” People v Devine, 185 Mich 50, 52-53; 151 NW
646 (1915). The authority to exercise jurisdiction over acts that occur outside the
state’s physical borders developed as an exception to the rule against extraterritorial
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jurisdiction. That exception, however, is “limited to those acts that are intended to
have, and that actually do have, a detrimental effect within the state.” Strassheim v
Daily, 221 US 280, 285; 31 S Ct 558, 55 L Ed 735 (1911); Deur v Newaygo
Sheriff, 420 Mich 440, 446-447; 362 NW2d 698 (1984). [Blume, supra, p 480.]
The Court further stated that the elements necessary for finding that a defendant intended a detrimental
effect in Michigan are “specific intent to act and the intent that the harm occur in Michigan.” Id., pp
480-481.
The evidence presented in this case overwhelmingly demonstrated that defendant had the
specific intent to act as well as the intent that the harm would occur in Michigan. Id., p 476. The
evidence indicated that defendant was engaged in an ongoing drug operation with a person named Roy
Knowles, defendant traveled to Michigan several times in furtherance of the drug operation, defendant
had numerous prior contacts with Knowles, and defendant was aware that the drugs were being
distributed in Michigan. Therefore, the evidence presented at trial clearly demonstrated that the trial
court had jurisdiction over defendant because it showed that defendant had the “specific intent to act
and the intent that the harm occur in Michigan.” Id., pp 480-481.
Second, the prosecutor also had to prove that Wayne County was the proper venue for
defendant’s trial. “Venue is a part of every criminal case and must be proved by the prosecutor beyond
a reasonable doubt.” People v Fisher, 220 Mich App 133, 145; 559 NW2d 318 (1996). “Due
process requires that trial of criminal prosecutions should be by a jury of the county or city where the
offense was committed, except as otherwise provided by the Legislature.” Id.
Wayne County w the proper venue for this matter. In People v Meredith, 209 Mich App
as
403, 408; 531 NW2d 749 (1995), this Court noted that “a conspiracy case can be prosecuted in any
jurisdiction in which an overt act occurred in furtherance of the conspiracy.” In the present case, the
evidence clearly showed that defendant went to Wayne County in order to be paid for drugs he had
constructively delivered to Knowles through his couriers, thus completing the delivery transaction. This
was an overt act in furtherance of the conspiracy. Therefore, Wayne County was a proper venue for
defendant’s charges.
Defendant next argues that the trial court erred when it denied his motion for a mistrial.
Specifically, defendant contends that the trial court should have found that the prosecutor violated a
prior court order which limited the prior acts evidence which the prosecutor could introduce. We
review a trial court’s decision on a motion for a mistrial for an abuse of discretion. People v
Wolverton, 227 Mich App 72, 75; 574 NW2d 703 (1997). An abuse of discretion occurs when the
trial court’s decision has denied a defendant a fair and impartial trial. Id.
The trial court’s order stated that “other acts” evidence under MRE 404(b) was “restricted to
that introduced at the preliminary examination and/or known to the defense at the preliminary stages of
the prosecution.” After the prosecutor made his opening statement, defense counsel moved for a
mistrial, arguing that this order had been violated. Defense counsel then explained to the trial court that
he first became aware of the other acts evidence discussed by the prosecutor in his opening statement
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on September 29, 1997. Defense counsel explained that the trial was originally to have begun on
September 29, 1997. However, the trial did not actually begin until October 13, 1997. The trial court
asked defense counsel why he waited until trial began to raise this objection when he was aware of the
potential the evidence had for violating the order. Defense counsel responded that he assumed the
prosecutor would follow the order. The prosecutor told the trial court that defense counsel was aware
of everything in his opening statement as of September 29, 1997.
The trial court did not abuse its discretion in failing to grant defendant’s motion for a mistrial.
Defendant became aware of the evidence which the prosecutor was going to introduce on September
29, 1997, but did not object to the introduction of the evidence until after the prosecutor mentioned it
during his opening statement on October 14, 1997. Reviewing the transcripts, it is clear that the trial
court was concerned that defendant was aware of the potential violation of the order, but did nothing
about it until trial began in order to gain a tactical advantage. Therefore, the trial court denied
defendant’s motion for mistrial. The denial of the motion for mistrial did not deny defendant a fair and
impartial trial because defendant was aware of the evidence that the prosecutor sought to introduce over
two weeks before the start of trial. Therefore, the trial court did not abuse its discretion when it denied
defendant’s motion for a mistrial.
Defendant next argues that the trial court erred when it failed to grant defendant’s motion to
dismiss for lack of jurisdiction. We review a trial court’s ruling on a motion to dismiss for an abuse of
discretion. People v Adams, 232 Mich App 128, 132; 591 NW2d 44 (1998).
The evidence presented at the preliminary examination demonstrated that defendant intended a
detrimental effect in Michigan because the evidence showed that defendant had the “specific intent to
act and the intent that the harm occur in Michigan.” Blume, supra, pp 480-481. The evidence at the
preliminary examination demonstrated that defendant came to Michigan in order to be paid for the
cocaine. An inference can be drawn from this evidence that defendant knew the cocaine he gave to
Paul Bailey (a courier) was to be delivered in Michigan. Therefore, the evidence at the preliminary
examination showed that defendant had the “specific intent to act and the intent that the harm occur in
Michigan.” Id. Therefore, the trial court did not abuse its discretion in denying defendant’s motion to
dismiss for lack of jurisdiction.
In a supplemental brief filed in pro per, defendant lastly argues that the prosecutor improperly
elicited information about, and referenced in closing argument, plea bargain agreements made with two
prosecution witnesses and that this effectively vouched for the credibility of those witnesses. In
reviewing a claim of prosecutorial misconduct, this Court examines the remarks made in context to
determine whether they denied defendant a fair trial. People v Bahoda, 448 Mich 261, 266-267;
NW2d (1995).
This issue was addressed by the Supreme Court in Bahoda. A prosecutor cannot vouch for the
credibility of prosecution witnesses to the effect that the prosecutor has some special knowledge
concerning a witness’ truthfulness. Id., p 276. Reference to a plea agreement containing a promise of
truthfulness is not in itself grounds for reversal. Id. Although plea agreements should be admitted with
great caution, admissibility of such agreements is not necessarily error requiring reversal unless it is used
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by the prosecutor to suggest that the government had some special knowledge, not known to the jury,
that the witness was testifying truthfully. Id.
In the present case, there was no objection made to the prosecutor’s examination of the two
witnesses in this regard. Rather, on cross-examination, defense counsel extensively questioned the two
witnesses regarding the plea agreements (that is, that they would testify and not receive prison time).
Further, upon review of the two witnesses’ testimony, the prosecutor did not vouch for the credibility of
the witnesses to the effect that the prosecutor had some special knowledge concerning the witnesses’
truthfulness. Also, the trial court instructed the jury that the lawyers’ statements and arguments were not
evidence. See id., p 281. Accordingly, defendant was not denied a fair trial due to any asserted
prosecutorial misconduct.
Affirmed.
/s/ Helene N. White
/s/ Harold Hood
/s/ Kathleen Jansen
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