PEOPLE OF MI V KIM S HENRY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 15, 2000
Plaintiff-Appellee,
v
No. 214107
Wayne Circuit Court
LC No.
97-009275
KIM S. HENRY,
Defendant-Appellant.
Before: Bandstra, C.J., and Gage and Wilder, JJ.
MEMORANDUM.
After a jury 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 a firearm during the commission
of a felony, MCL 750.227b; MSA 28.424(2). The trial court sentenced defendant to an eight month to 20 year term
of incarceration for the possession with intent to deliver conviction, and a consecutive two-year term for the felonyfirearm conviction. Defendant appeals as of right. We affirm.
Defendant first contends that the trial court erred by not instructing the jury on the issue of flight,
specifically that the jury should not consider defendant’s flight as substantive evidence of his guilt. In the absence of
defendant’s objection to the trial court’s instructions or request of a limiting instruction regarding flight evidence, we
find that the trial court in instructing the jury committed no error. People v Rice (On Remand), 235 Mich App 429,
444; 597 NW2d 843 (1999) (Absent a request or objection, “appellate courts have declined to impose a duty on trial
courts to give sua sponte limiting instructions such as the one now suggested by defendant.”).
Even were we to assume that the trial court plainly erred in failing to sua sponte instruct the jury regarding
the extent to which it should consider evidence of defendant’s flight from the police, this error would not warrant
reversal of defendant’s convictions because the error did not affect defendant’s substantial rights. People v Carines,
460 Mich 750, 763-764, 774; 597 NW2d 130 (1999). City of Detroit Police Officer Jeffrey Weiss testified that he
witnessed defendant apparently attempting to sell drugs in the middle of the street near 4093 Lovett Street, a
suspected area of drug activity. After approaching defendant, who fled, and following defendant into 4093 Lovett,
Weiss witnessed defendant throw behind a couch a baggie that contained several large, uncut rocks of crack cocaine.
Weiss further testified that a subsequent search of defendant revealed that defendant carried a revolver, nineteen
individually wrapped rocks of crack and $370 cash. In light of this overwhelming evidence of defendant’s guilt, we
cannot conclude that defendant “is actually innocent or the error seriously affected the fairness, integrity, or public
reputation of [the] judicial proceedings.” Id. at 774.
Defendant also argues that his trial counsel was ineffective because he failed to request a flight instruction.
In view of the available record, however, we conclude that defendant failed to show that any alleged ineffectiveness
of defense counsel affected the outcome of defendant’s trial. People v Poole, 218 Mich App 702, 717-718; 555
NW2d 485 (1996); People v Hedelsky, 162 Mich App 382, 387; 412 NW2d 746 (1987).
Affirmed.
-1-
/s/ Richard A. Bandstra
/s/ Hilda R. Gage
/s/ Kurtis T. Wilder
-2-
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