PEOPLE OF MI V ROBERT R POE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 15, 2003
Plaintiff-Appellee,
v
No. 239713
Wayne Circuit Court
LC No. 01-006603
ROBERT R. POE,
Defendant-Appellant.
Before: Jansen, P.J., and Kelly and Fort Hood, JJ.
PER CURIAM.
Defendant appeals as of right from nonjury convictions of possession with intent to
deliver less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv), possession with intent to
deliver less than fifty grams of heroin, MCL 333.7401(2)(a)(iv), possession with intent to deliver
less than five kilograms of marijuana, MCL 333.7401(2)(d)(iii), and possession of a firearm
during the commission of a felony, MCL 750.227b. Defendant was sentenced to probation for
the controlled substance convictions, to be served consecutively to the mandatory two-year
prison term for felony-firearm. We affirm. This appeal is being decided without oral argument
pursuant to MCR 7.214(E).
Defendant first challenges the sufficiency of the evidence. A challenge to the sufficiency
of the evidence in a bench trial is reviewed de novo on appeal. People v Sherman-Huffman, 241
Mich App 264, 265; 615 NW2d 776 (2000), aff’d 466 Mich 39 (2002). This Court reviews the
evidence in a light most favorable to the prosecution to determine whether a rational trier of fact
could have found that each element of the crime was proved beyond a reasonable doubt. People
v Harmon, 248 Mich App 522, 524; 640 NW2d 314 (2001). The trial court’s factual findings are
reviewed for clear error. A finding of fact is considered “clearly erroneous if, after review of the
entire record, the appellate court is left with a definite and firm conviction that a mistake has
been made.” People v Gistover, 189 Mich App 44, 46; 472 NW2d 27 (1991). “An appellate
court will defer to the trial court’s resolution of factual issues, especially where it involves the
credibility of witnesses.” People v Cartwright, 454 Mich 550, 555; 563 NW2d 208 (1997).
The elements of possession with intent to deliver cocaine and heroin are (1) defendant
knowingly possessed a controlled substance, (2) defendant intended to deliver the substance to
someone else, (3) the substance possessed was cocaine or heroin, and (4) the substance was in a
mixture that weighed less than fifty grams. People v Crawford, 458 Mich 376, 389; 582 NW2d
785 (1998). The elements of possession with intent to deliver marijuana are similar: (1)
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defendant knowingly possessed a controlled substance, (2) defendant intended to deliver the
substance to someone else, (3) the substance possessed was marijuana, and (4) the substance was
in a mixture that weighed less than five kilograms. MCL 333.7401(2)(d)(iii).
“Possession is a term that ‘signifies dominion or right of control over the drug with
knowledge of its presence and character.’” People v Nunez, 242 Mich App 610, 615; 619 NW2d
550 (2000), quoting People v Maliskey, 77 Mich App 444, 453; 258 NW2d 512 (1977). The
defendant need not own or have actual physical possession of the substance to be found guilty of
possession; constructive possession is sufficient. People v Wolfe, 440 Mich 508, 519-520; 489
NW2d 748 (1992), amended 441 Mich 1201 (1992). Constructive possession, which may be
sole or joint, is the right to exercise control over the drug coupled with knowledge of its
presence. Wolf, supra, 440 Mich 520. Possession may be proved by circumstantial evidence and
any reasonable inferences drawn therefrom. Nunez, supra. Close proximity to contraband in
plain view is evidence of possession. See, e.g., People v Head, 211 Mich App 205, 210; 535
NW2d 563 (1995), People v Williams, 188 Mich App 54, 57-58; 469 NW2d 4 (1991); People v
Iaconis, 29 Mich App 443, 459; 185 NW2d 609 (1971).
Actual delivery of the controlled substance is not necessary to prove intent to deliver.
Wolfe, supra, 440 Mich 524. Intent to deliver may be inferred from all of the facts and
circumstances, including the amount of narcotics and the way in which they are packaged, and
minimal circumstantial evidence is sufficient. Id.; People v Fetterley, 229 Mich App 511, 517518; 583 NW2d 199 (1998).
The elements of felony-firearm are that the defendant possessed a firearm during the
commission or attempted commission of any felony other than those four enumerated in the
statute. MCL 750.227b(1); People v Mitchell, 456 Mich 693, 698; 575 NW2d 283 (1998);
People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999). Possession of a weapon may
be actual or constructive and may be proved by circumstantial evidence. People v Hill, 433
Mich 464, 469-470; 446 NW2d 140 (1989). “[A] defendant has constructive possession of a
firearm if the location of the weapon is known and it is reasonably accessible to the defendant.”
Hill, supra, 433 Mich 470-471.
The evidence showed that defendant lived at the house in question. Police observed
activity indicative of narcotics trafficking there. A confidential informant, acting under police
supervision, made a controlled buy of cocaine at the house and, apparently, identified defendant
as the seller because he was named in the search warrant. Defendant had a loaded handgun
underneath him and two rifles close by.1 Defendant had actual possession of heroin, which was
found in his pants pocket, and cocaine and marijuana were on the table beside him. Given that
defendant was alone in the house admitted that he lived there, and that the drugs and weapons
1
The trial court apparently misspoke when it referred at one point to twelve weapons because it
correctly noted that the evidence showed that only three guns were recovered. Contrary to
defendant’s argument, the trial court did not reject his testimony as incredible because there were
twelve weapons but because he claimed not to have seen any guns when they were out in plain
view.
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were in plain view, the evidence was sufficient to prove constructive possession beyond a
reasonable doubt.
The defendant had loose rocks of crack cocaine plus fourteen separate packets of heroin
and twenty-four separate packets of marijuana. There was no evidence that the police found any
drug paraphernalia associated with personal consumption of drugs. Given that, plus the evidence
of suspected narcotics activity and the controlled buy, the evidence was sufficient to prove intent
to deliver beyond a reasonable doubt.
Defendant also challenges the sufficiency of the trial court’s findings. “A judge who sits
without a jury in a criminal case must make specific findings of fact and state conclusions of
law.” People v Shields, 200 Mich App 554, 558; 504 NW2d 711 (1993). Those findings and
conclusions may be placed on the record or incorporated in a written opinion. MCR 6.403. The
purpose of this requirement is to facilitate appellate review. People v Johnson (On Rehearing),
208 Mich App 137, 141; 526 NW2d 617 (1994).
Although the trial court did not make a specific finding regarding intent to deliver, it was
not required to do so. People v Legg, 197 Mich App 131, 134; 494 NW2d 797 (1992). A review
of the record shows that the court was aware of the issues and correctly applied the law, and thus,
its findings were sufficient. Legg, supra.
Affirmed.
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
/s/ Karen M. Fort Hood
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