PEOPLE OF MI V WINSTON MOORE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 19, 2002
Plaintiff-Appellee,
v
No. 225863
Wayne Circuit Court
Criminal Division
LC No. 99-001952
WINSTON MOORE,
Defendant-Appellant.
Before: O’Connell, P.J., and White and Cooper, JJ.
PER CURIAM.
Defendant was convicted by a jury of conspiracy to deliver 225 or more but less than 650
grams of cocaine, MCL 750.157a and MCL 333.7401(2)(a)(ii), and two counts of delivery of 50
or more but less than 225 grams of cocaine, MCL 333.7401(2)(a)(iii). He was sentenced to
prison terms of five to thirty years for the conspiracy conviction, and five to twenty years for
each of the delivery convictions, all sentences to be served consecutively. He appeals as of right,
and we affirm.
Defendant first argues that there was insufficient evidence of a conspiracy and that the
proofs showed only the involvement of a buyer and a seller. In reviewing a sufficiency claim,
this Court determines whether, when viewed in the light most favorable to the prosecutor, the
evidence was sufficient to allow a rational trier of fact to find that the essential elements of the
crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285
NW2d 284 (1979).
Defendant was charged with conspiracy to deliver 225 or more but less than 650 grams of
cocaine. The evidence at trial showed that there were two sales at issue.1 The first sale (June 27,
1998) involved 180.95 grams. The second sale (August 1998) involved 124.27 grams. Thus,
defendant was directly involved in sales amounting to 305.22 grams of cocaine even if he later
abandoned the conspiracy, as he argues on appeal.
1
The information covers the period from March 1998 through February 8, 1999. The informant
testified that the cocaine found in his residence in March 1998 was bought from defendant at codefendant Davis’ house. However, although this March transaction is included in the period
covered by the information, it was not presented as a predicate for the conspiracy count at trial or
on appeal.
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There was evidence from which the jury could reasonably conclude that Davis was
involved in both sales. There was evidence that the June sale was initially planned to take place
at Davis’ residence on Winthrop. Although the evidence was conflicting, there was testimony
that the informant, Morgan, and defendant traveled to Davis’ house, that a call was made, and
that defendant then took Morgan to the French Quarters Apartments where the purchase took
place. In the August sale, codefendant Davis delivered the drugs to defendant’s house. Further,
there was evidence that both defendant and Davis confronted Morgan with the fact that Yabo
claimed he owed $100 on the August sale. This was sufficient to support the inference that
Davis knew that the cocaine procured for Moore was going to Morgan. Thus, the evidence,
viewed most favorably to the prosecution, was sufficient to enable a rational factfinder to find
the elements of conspiracy to deliver 225 or more but less than 650 grams of cocaine beyond a
reasonable doubt.
Defendant next argues that he was entrapped by repeated telephone calls from Morgan.
After a post-trial entrapment hearing, the trial court ruled that defendant had not been entrapped.
We review the trial court’s findings for clear error. People v Connolly, 232 Mich App 425, 428429; 591 NW2d 340 (1998).
The trial court found that “[m]uch of what I heard from Mr. Moore today I do not find to
be believable,” and concluded that the police conduct through Morgan was not reprehensible,
and that the phone calls would not have induced a similarly situated, law-abiding person to
engage in the sales of cocaine. People v Fabiano, 192 Mich App 523; 482 NW2d 467 (1992).
We cannot conclude that the trial court’s findings are clearly erroneous. The trial court
appropriately noted that if defendant wanted to be excluded from any future deals, he should
have refrained from returning Morgan’s telephone calls.
Defendant next argues that defense counsel was ineffective because he did not obtain and
review all available discovery. Defendant speculates that if counsel had properly reviewed the
tapes and properly filed the entrapment motion prior to trial, and the motion had been granted,
the charge of conspiracy would have been dismissed.
To establish ineffective assistance of counsel, a defendant must show that counsel made
errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the
Sixth Amendment, and that counsel’s errors were so serious that there is a reasonable probability
that, but for the errors, the result would have been different. People v Pickens, 446 Mich 298;
521 NW2d 797 (1994). Counsel explained to the court what the tapes revealed, and there is no
reason to believe that the court would have ruled differently had the motion been made before
trial.
Defendant next argues that the trial court erred by permitting the prosecutor to amend the
information during trial to allege that codefendant Davis was also part of the conspiracy alleged
against defendant.
An information may be amended at any time before, during, or after trial
to cure any defect, imperfection, or omission in form or substance, including a
variance between the information and the proofs, as long as the accused is not
prejudiced by the amendment and the amendment does not charge a new crime.
MCL 767.76; MSA 28.1016; People v Stricklin, 162 Mich App 623, 633; 413
-2-
NW2d 457 (1987). [People v Higuera, 244 Mich App 429, 444; 625 NW2d 444
(2001).]
When trial started, the information alleged in Count I a conspiracy between defendant
and Harris. The location of the conspiracy was alleged to be the addresses on Brace Street (the
French Quarters Apartments), defendant’s home on Algonquin, and codefendant Davis’ home on
Winthrop, and it was alleged that the conspiracy occurred from March 1998 to February 8, 1999.
At the close of its proofs, the prosecution moved to amend the information to allege that Moore
acted with Harris “and others.” The trial court granted the motion. Defendant objected that he
was surprised by the amendment, which now added codefendant Davis to the allegation of
conspiracy.
We are not persuaded that defendant was “surprised” by allegations that he conspired
with Davis. Count I, as originally drafted, alleged a conspiracy taking place at Davis’ house.
The three defendants had a single arraignment on the information, and a single preliminary
examination, arraignment at circuit court, and trial. The officer in charge testified at the
preliminary examination that Davis was involved in the August 1998 sale at Moore’s house.
Although defendant argued that he had sought to show during trial that he did not even
know Harris, thus potentially negating the existence of a conspiracy as originally charged, the
trial court correctly observed that the law does not require that all the conspirators know each
other or know all the details of the crime. People v Garska, 303 Mich 313; 6 NW2d 527 (1942);
People v DeLano, 318 Mich 557, 567; 28 NW2d 909 (1947). We conclude that defendant has
not shown that he was prejudiced by the amendment of the information, and the court did not
abuse its discretion in allowing the amendment. People v Weathersby, 204 Mich App 98, 104;
514 NW2d 493 (1994).
Affirmed.
/s/ Peter D. O’Connell
/s/ Helene N. White
/s/ Jessica R. Cooper
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