PEOPLE OF MI V JAYNE KIMBERLY SCHWERIN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 20, 2002
Plaintiff-Appellee,
v
No. 237826
Macomb Circuit Court
LC No. 00-002542
JAYNE KIMBERLY SCHWERIN,
Defendant-Appellant.
Before: Kelly, P.J., and Jansen and Donofrio, 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), possession of marijuana, MCL
333.7403(2)(d), and maintaining a drug house, MCL 333.7405(d). She now appeals as of right.
We affirm.
On appeal, defendant first claims that there was insufficient evidence to support her
conviction for possession with intent to deliver cocaine. When reviewing a challenge to the
sufficiency of the evidence, this Court views the evidence in a light most favorable to the
prosecution to determine whether the evidence presented at trial, together with all reasonable
inferences therefrom, 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 Wolfe, 440 Mich 508,
513-515; 489 NW2d 478, amended 441 Mich 1201 (1992).
To support a conviction for possession with intent to deliver less than fifty grams of
cocaine, the prosecution must 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
the intent to deliver.” Id., pp 516-517. Defendant does not dispute the first three elements, but
argues that the prosecution failed to present evidence sufficient to establish beyond a reasonable
doubt that she possessed the cocaine with the intent to deliver. We disagree.
The record in this case indicates that the police began to conduct surveillance of
defendant’s home after it was suspected of being the site of drug trafficking. Defendant lived in
the house with her son and three other individuals, Dwight Anderson, Anderson’s girlfriend, and
Jessie Oliver. While conducting the surveillance, the police saw Oliver and another man get into
a van registered to Anderson, which was parked in defendant’s driveway. The police followed
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the van to two residential locations, where the passenger got out of the van and conducted “quick
exchanges” with the residents. According to the police, these exchanges were typical of drug
sales. As a result, the police conducted a “trash pull” at defendant’s house, seizing four bags of
trash containing plastic baggies, which tested positive for cocaine residue, along with crack pipes
and other drug paraphernalia. Defendant admitted that she discarded this trash.
Thereafter, police executed a search of defendant’s home. In the utility closet, which was
Oliver’s bedroom, the police found a glass stem, which is commonly used to smoke crack
cocaine. In a hallway closet, the police found a razor blade and more drug paraphernalia. In one
of the bedrooms that had numerous items of women’s clothing, the police found what appeared
to be two aerosol spray cans whose bottoms had been screwed off. Inside these cans, the police
found cocaine and a bag of marijuana. On the bed, the police found a plate with a razor blade
that tested positive for cocaine residue. In the bedroom closet, the police also found more
cocaine.
“Possession with intent to deliver can be established by circumstantial evidence and
reasonable inferences arising from that evidence, just as it can be established by direct evidence.”
Wolfe, supra, 440 Mich 526. A person need not have physical possession of a controlled
substance to be found guilty of possessing it. Id. at 519-520. “Possession may be either actual
or constructive, and may be joint as well as exclusive.” People v Fetterley, 229 Mich App 511,
515; 583 NW2d 199 (1998). The essential question is whether the defendant had dominion or
control over the controlled substance. People v Konrad, 449 Mich 263, 271; 536 NW2d 517
(1995).
Viewing the evidence in a light most favorable to the prosecution, there was sufficient
evidence to establish that defendant possessed the cocaine with the intent to deliver. As the trial
court noted, defendant owned the home and had “the care and custody and control of the place.”
Further, drugs and drug paraphernalia were found throughout the house, including the common
areas, supporting the inference that defendant had access to and control over the drugs. In
addition, defendant admitted to throwing away the trash containing the drug paraphernalia. A
person’s power to dispose of a controlled substance has been held to establish a link between that
person and the substance. Wolfe, supra, 440 Mich 521.
In addition to showing that defendant possessed the cocaine, the prosecution also
presented sufficient evidence that defendant intended to deliver the cocaine. Actual delivery is
not required to prove a defendant’s intent to deliver. Id., p 524. “Intent to deliver can be
inferred from the quantity of the controlled substance in the defendant’s possession and from the
way in which the controlled substance is packaged.” Fetterley, supra, 229 Mich App 518. Here,
the police uncovered twenty baggies that tested positive for cocaine residue. The police also
found razor blades, often used by drug dealers to cut rocks of cocaine into smaller pieces for
sale, which tested positive for cocaine residue. In addition, the police observed Oliver leave
defendant’s home and perform “quick exchanges,” which are typical of drug sales. These facts
are sufficient to establish that defendant intended to deliver cocaine. Therefore, the prosecution
presented sufficient evidence to establish beyond a reasonable doubt that defendant possessed
with the intent to deliver less than fifty grams of cocaine.
Defendant next argues that her conviction for possession with the intent to deliver was
against the great weight of evidence. A new trial based on the weight of the evidence should be
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granted only where the evidence preponderates so heavily against the verdict that it would be a
miscarriage of justice to allow it to stand. People v. Lemmon, 456 Mich 625, 642; 576 NW2d
129 (1998); People v McCray, 245 Mich App 631, 637; 630 NW2d 633 (2001).
Defendant sought to show that she did not possess the cocaine by claiming that the drugs
belonged to Anderson and his girlfriend. Defendant testified that Mullet, the conservator of a
trust fund set up for her son, introduced her to Anderson. Defendant claimed that Anderson
occasionally stayed at her house while he did some home repairs for her. According to
defendant, Anderson’s girlfriend stayed with her because defendant was scared of sleeping in the
house with only her son. According to defendant, when she called Mullet and told him that she
thought Anderson and his girlfriend might be involved in drugs, Mullet told her to kick them out.
Defendant also claimed that the drugs were primarily located in Anderson and his girlfriend’s
bedroom and that she stayed in the bedroom where no drugs were found. However, Mullet, in
his testimony, denied that he introduced Anderson to defendant and claimed that he did not even
know Anderson. Mullet also denied that he had a conversation with defendant about evicting
Anderson and his girlfriend from the house.
In support of her claim that her conviction for possession with the intent to deliver was
against the great weight of evidence, defendant also offered the testimony of her son, Duane, and
his friend, Andre Anderson, Dwight Anderson’s grandson. Duane testified that defendant often
slept in his bedroom and not in the bedroom where most of the drugs were found. Andre
Anderson testified that when he stayed overnight at defendant’s house on the two occasions,
defendant slept in her son’s room or on the couch in the living room. On cross-examination,
however, Andre Anderson revealed that defendant promised him a sum of money if she was
acquitted.
Given the strength of the evidence against her in this case, defendant’s conviction for
possession with intent to deliver less than fifty grams of cocaine was not against the great weight
of the evidence. Lemmon, supra, 456 Mich 642.
Finally, defendant argues that she was denied the effective assistance of counsel because
her attorney failed to object to Mullet’s testimony. Defendant argues that Mullet’s testimony
violated the attorney-client privilege and that she was harmed because this testimony was very
damaging. We disagree.
Because defendant has not moved for a new trial or requested an evidentiary hearing on
this issue, our review is limited to mistakes apparent on the record. People v Ginther, 390 Mich
436, 443; 212 NW2d 922 (1973); People v Williams, 223 Mich App 409, 414; 566 NW2d 649
(1997). “Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.” People v Stanaway, 446 Mich 643, 687-688; 521 NW2d 557 (1994). To
establish ineffective assistance of counsel, a defendant must show that counsel’s performance
was objectively unreasonable and that counsel’s defective performance prejudiced the defendant.
People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). Prejudice sufficient to warrant
reversal of a defendant’s conviction has been defined as prejudice that “affect[s] the outcome of
the trial.” People v Pickens, 446 Mich 298, 332; 521 NW2d 797 (1994).
Here, defendant’s claim of ineffective assistance of counsel must fail because defendant
cannot establish that Mullet’s testimony violated the attorney-client privilege. First, Mullet was
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not acting as defendant’s attorney. Because defendant never communicated with Mullet to
secure legal advice, her communications with Mullet were not privileged. People v Compeau,
244 Mich App 595, 597; 625 NW2d 120 (2001). However, even assuming arguendo that
defendant’ communications with Mullet were privileged, defendant, by testifying about the
substance of these communications, waived any such privilege. McCarthy v Belcher, 128 Mich
App 344, 348; 340 NW2d 848 (1983). Because there was no privilege to assert, defense counsel
had no basis to object to Mullet’s testimony. A defendant’s claim of ineffective assistance of
counsel cannot be based on his counsel’s failure to make a meritless motion. People v Snider,
239 Mich App 393, 425; 608 NW2d 502 (2000). Therefore, defendant was not denied the
effective assistance of counsel.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Kathleen Jansen
/s/ Pat M. Donofrio
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