PEOPLE OF MI V MATTHEW M PARKER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 4, 2001
Plaintiff-Appellee,
v
No. 225051
Kent Circuit Court
LC No. 98-008589-FH
MATTHEW M. PARKER,
Defendant-Appellant.
Before: Holbrook, Jr., P.J., and Cavanagh and Meter, JJ.
PER CURIAM.
Defendant appeals by right from his convictions by a jury of possession with intent to
deliver more than 50 but less than 225 grams of cocaine, MCL 333.7401(2)(a)(iii), possession
with intent to deliver marijuana, MCL 333.7401(2)(d)(iii), and maintaining a drug house, MCL
333.7405(d). We affirm.
Defendant first argues that the trial court should have granted his motion for a directed
verdict on the cocaine charge because the prosecutor failed to prove that he knowingly possessed
over fifty grams of cocaine. Specifically, defendant contends that the prosecution failed to
adequately link him to the substantial quantity of cocaine found in a safe in the basement of the
house where defendant was residing with two other adults, Mattie Madison and Lionel Madison.
In analyzing a trial court’s denial of a motion for a directed verdict, we consider the
evidence presented up to the time the motion was made. People v Lemmon, 456 Mich 625, 634;
576 NW2d 129 (1998). “[W]e review the record de novo and consider the evidence presented by
the prosecution in the light most favorable to the prosecution to determine whether a rational trier
of fact could find that the essential elements of the crime charged were proved beyond a
reasonable doubt.” People v Mayhew, 236 Mich App 112, 124; 600 NW2d 370 (1999).
We initially note that “[a] person need not have actual physical possession of a controlled
substance to be guilty of possessing it,” and “[p]ossession may be actual or constructive.”
People v Wolfe, 440 Mich 508, 519-520; 489 NW2d 748, amended 441 Mich 1201 (1992).
Constructive possession entails having the right to exercise control over the cocaine and knowing
that it is present. Id. at 520. Furthermore, “[i]t is well established that a person’s presence, by
itself, at a location where drugs are found is insufficient to prove constructive possession,” and
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“some additional connection between the defendant and the contraband must be shown.” Id.
Moreover, “[a]ny one of various factors may be sufficient under given circumstances to establish
this connection.” Id. at 520-521.
Our review of the record leads us to conclude that the prosecutor established a sufficient
connection between defendant and the drugs in question. According to Michigan State Police
Officer Robin Lynde, defendant told her that he had lived at the house in question for about eight
months; he also told her that he was sitting in the basement when the officers knocked on the
door. When Lynde asked defendant about the small amount of cocaine found sitting on a coffee
table in plain view in the basement, defendant said that the cocaine was not his, but he also said
that his fingerprints would be found on both the cocaine packaging and on the cigarette pack in
which the packaged cocaine was located. Defendant’s driver’s license was found next to the
cigarette pack on this basement coffee table. When Lynde asked defendant whether his
fingerprints would be found on any other cocaine in the residence, defendant replied that his
recollection was not that good.
The prosecution presented evidence of two items found in the basement safe alongside
the substantial amount of cocaine that supported defendant’s conviction of possession with intent
to deliver more than 50 but less than 225 grams of cocaine: a pen with the name “Matt” on it,
and an electronic planner containing the name and telephone number of Lionel Madison. The
significance of the pen is obvious given that defendant’s name is Matthew.1 Regarding the
electronic planner, the prosecution introduced evidence suggesting that, through a process of
elimination, the jury should infer that the address book belonged to defendant, because (1) a
paper address book had been found in Mattie Madison’s room with her name in the front, but not
in the address section, and (2) yet another address book had been found containing Lionel
Madison’s name in the front, but not in the address section. The prosecution’s theory was that
this third address book found in the safe belonged to defendant because “one generally does not
list one’s own name in the address section of an address book” (meaning that it was unlikely that
the book belonged to Lionel, because it contained Lionel’s name and number). Further, the
prosecution pointed out that the electronic book did not contain any of the names found in
Lionel’s or Mattie’s address books, arguing in closing argument that it was unlikely that either of
them was transferring the contents of the paper book to the electronic one. Based on these
circumstances, the prosecution argued that the electronic planner belonged to defendant, along
with the “Matt” pen and the cocaine within the safe in the basement.2
We agree with the thrust of the prosecution’s argument. Taken together and viewed in
the light most favorable to the prosecutor, the above evidence supported a finding by reasonable
jurors that defendant had control over cocaine found in the basement safe. The trial court did not
err by denying defendant’s motion for a directed verdict on the cocaine charge.
1
We note that defendant does not even contend that “Matt” might have been a shortened version
of “Mattie” Madison.
2
Defendant admitted during his testimony that he slept in the basement the majority of the time.
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Next, defendant argues that defense counsel rendered ineffective assistance of counsel by
opposing a jury instruction on the lesser-included offense of possession with intent to deliver less
than fifty grams of cocaine. Defendant contends that counsel’s decision could not be justified as
reasonable trial strategy, given the large disparity of sentences between the two offenses.
To establish ineffective assistance of counsel, a defendant must show that his attorney’s
performance was deficient under an objective standard of reasonableness and that the deficiency
reasonably affected the outcome of the case. People v Stanaway, 446 Mich 643, 687; 521 NW2d
557 (1994); People v Snider, 239 Mich App 393, 423-424; 608 NW2d 502 (2000). An attorney
is presumed to provide effective assistance; therefore, a defendant bears a heavy burden of
proving otherwise. Stanaway, supra at 687. A defendant must overcome the presumption that
the challenged action or omission by counsel could conceivably be considered sound trial
strategy under the circumstances. People v Knapp, 244 Mich App 361, 385-386; 624 NW2d 227
(2001). This Court will not second-guess counsel’s trial tactics. Id. at 386 n 7.
Here, while we conclude that the prosecutor presented sufficient evidence to support the
cocaine conviction beyond a reasonable doubt, we also conclude that there were several cogent
defense arguments to be made and that were made regarding the cocaine in the basement safe
that supported the conviction of possession with intent to deliver more than 50 but less than 225
grams of cocaine. By contrast, defendant admitted that the small amount of cocaine found in a
different safe in the northwest bedroom was his. Moreover, defendant admitted to Lynde that his
fingerprints would be found on the cigarette pack located on the basement coffee table and
containing an additional small amount of cocaine. Therefore, we agree with defendant’s
assertion that “the prosecution could tie him to under 50.” A request for an instruction on the
lesser-included offense virtually would have guaranteed defendant a guilty verdict.
Furthermore, while defendant is correct that the refusal to give a requested instruction for
a necessarily included offense constitutes error requiring reversal, see People v Reese, 242 Mich
App 626, 629; 619 NW2d 708 (2000), “a court generally has no duty to instruct the jury sua
sponte regarding all lesser included offenses.” Id. at 629 n 2. As noted in People v Nickson, 120
Mich App 681, 687; 327 NW2d 333 (1982):
Defendant was not denied effective assistance of counsel because of trial
counsel’s decision not to request an instruction on additional lesser included
offenses. The decision to proceed with an all or nothing defense is a legitimate
trial strategy.
Defendant has failed to overcome the presumption that counsel’s decision to pursue the
chance of a complete acquittal on the cocaine charge, rather than to request a lesser-included
offense instruction that would almost certainly result in a conviction carrying a mandatory prison
term, constituted reasonable trial strategy. Accordingly, defendant has failed to establish that his
attorney rendered ineffective assistance of counsel.
Next, defendant argues that the trial court should have granted his motion for a directed
verdict with regard to the marijuana charge because the prosecutor failed to prove that defendant
possessed the marijuana found in a black bag in the bedroom defendant sometimes shared with
Mattie Madison’s grandson. We first note that defendant failed to provide any supporting
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authority for his argument. “An appellant may not merely announce his position and leave it to
this Court to discover and rationalize the basis for his claims, nor may he give only cursory
treatment [of an issue] with little or no citation of supporting authority.” People v Kelly, 231
Mich App 627, 640-641; 588 NW2d 480 (1998). Defendant’s failure to cite any supporting legal
authority constitutes an abandonment of this issue. Prince v MacDonald, 237 Mich App 186,
197; 602 NW2d 834 (1999).
Even if we were to review this issue, we would find no basis for reversal. Officer Lynde
testified that a black duffel bag was found in a closet in the bedroom and that it contained three
large Ziploc baggies that contained several smaller baggies of marijuana. The bag also contained
an electronic scale, a box of sandwich-size baggies, another large Ziploc bag, a brown bag, and a
receipt. Lynde further testified that defendant sometimes shared the bedroom with Mattie
Madison’s eight-year-old grandson and that the bedroom also contained a small safe holding
penny rolls, an expired driver’s license belonging to defendant, a pager, the title to a 1961
Oldsmobile, and a small quantify of cocaine.
The prosecution presented evidence that Lionel Madison had his own stash of drugs and
set of scales in his bedroom and that Mattie Madison kept her own set of drugs in her bedroom.
Thus, there was no reason for either of them to keep the drugs in the eight-year-old boy’s room,
rather than with the rest of their drugs; the evidence more logically suggested that defendant kept
the marijuana, scales, and baggies in the northwest bedroom that he shared and in which he kept
other items. Accordingly, there was sufficient evidence for the jury to conclude beyond a
reasonable doubt that the marijuana belonged to defendant. No error occurred.
Finally, defendant argues that the court erred by denying his motion for a directed verdict
on the drug house charge because the prosecutor failed to prove that defendant controlled the
premises.
MCL 333.7405(d) states:
A person ... [s]hall not knowingly keep or maintain a store, shop,
warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place,
which is resorted to by persons using controlled substances in violation of this
article for the purpose of using these substances, or which is used for keeping or
selling them in violation of this article.
Defendant argues that defendant did not “keep or maintain” the premises because “[t]he person
keeping or maintaining the property is clearly the landlord/owner within any reasonable
contemplation of those terms, and only that person.” Defendant disagrees with the decision in
People v Bartlett, 231 Mich App 139, 143-155; 585 NW2d 341 (1998), in which this Court
reasoned that a rent-paying tenant who knew that drugs were being sold on the premises could be
said to “keep or maintain” the premises. Specifically, defendant rejects the following reasoning
from Bartlett:
In light of defendant’s rental obligations to Mitchell, it is difficult to
comprehend how defendant could deny that he had any control over his own
bedroom. If we permit defendant to avoid responsibility for keeping and
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maintaining a drug house simply because the drug transactions allegedly took
place out of his sight and behind closed doors, yet in the house where he lived, we
would effectively gut the Legislature’s attempt to curb the sale of controlled
substances from homes within our neighborhoods. Defendant provides no
authority for this position, and we can find no rationale to support it. [Id. at 153.]
Bartlett, which is binding under MCR 7.215(I)(1), essentially resolves the issue defendant
presents on appeal. Under Bartlett, the “keep or maintain” language within the statute requires
only that a defendant have general control over the premises. Furthermore, the payment of rent
for the premises where the controlled substances are kept, sold, or used is indicative of control.
Bartlett, supra at 156.
Here, Lynde testified that defendant told her that he had lived at the house for
approximately eight months. Defendant’s expired driver’s license was found in the house in a
safe containing cocaine. Marijuana, Ziploc baggies, and a scale were found in a bedroom used
by defendant. Additionally, a large quantity of cocaine was found in a basement safe along with
items connected to defendant. According to Lynde, Mattie Madison told her that defendant paid
$200 a month in rent to live at the house. Under these circumstances, the prosecutor sufficiently
proved defendant’s guilt under MCL 333.7405(d). See Bartlett, supra at 143-155. No error
occurred.
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Mark J. Cavanagh
/s/ Patrick M. Meter
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