PEOPLE OF MI V DONNELL SHINHOLSTER EL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 18, 2003
Plaintiff-Appellee,
v
No. 242189
St. Clair Circuit Court
LC No. 01-002886-FH
DONNELL SHINHOLSTER EL,
Defendant-Appellant.
Before: Whitbeck, C.J., and Zahra and Donofrio, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial convictions for manufacture of forty-five
kilograms or more of marijuana, MCL 333.7401(2)(d)(i), conspiracy to manufacture forty-five
kilograms or more of marijuana, MCL 333.7401(2)(d)(i) and MCL 750.157a, felon in possession
of a firearm, MCL 750.224f, and possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b. The trial court sentenced defendant, as second-offender for a
controlled substance offense, MCL 333.7413(2), and as a second habitual offender, MCL 769.10,
to eighteen to thirty years’ imprisonment for his manufacture of forty-five kilograms or more of
marijuana, second offense, conviction, 36 to 270 months’ imprisonment for his conspiracy to
manufacture forty-five kilograms or more of marijuana conviction, and twenty-four to ninety
months’ imprisonment for his felon in possession of a firearm conviction, to run consecutively to
two years’ imprisonment for his felony-firearm conviction. We affirm in part, vacate in part, and
remand for restencing.
I. Facts
Based on a tip that there was a large marijuana growth operation at a house on
Ravenswood Road, police drove by the suspect house and saw defendant outside the house and
what looked like marijuana stalks growing on the property. Police parked their car and
approached the house, where they smelled marijuana and saw somebody in the house. When the
police announced their presence, the door opened, and police saw a large stack of marijuana in
the house. Defendant and two other people crawled out of the house. A total of four people
were arrested at the house. Inside the house, police found approximately 530 pounds (240
kilograms) of marijuana, a loaded shotgun, a variety of cutting instruments, packets containing
seeds, a triple-beam scale, and a book entitled Marijuana Grower’s Handbook. Later, while in
police custody, defendant admitted that all of the marijuana plants that were inside the house and
outside in the fields belonged to him.
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II. Defendant’s Prior Felony Conviction
First, defendant argues that the trial court erred in informing the jury that defendant had a
prior felony conviction for attempt to manufacture five to forty-five kilograms of marijuana.1
Because defendant failed to preserve this issue for appeal, our review is for plain error affecting
substantial rights. People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999). Before the jury
was selected in this case, the trial court informed the prospective jury that defendant was being
charged with felon in possession of a firearm because he had previously been convicted of
attempt to manufacture five to forty-five kilograms of marijuana. At the end of the trial, the
parties stipulated to the trial court’s instruction to the jury that defendant had previously been
convicted of an unspecified felony.2
In People v Green, 228 Mich App 684, 691-692; 580 NW2d 444 (1998), this Court set
forth the law governing the situation in the present case:
This Court has explained that “adequate safeguards” can be erected to
ensure that a defendant charged with both felon-in-possession and other charges
arising from the same incident suffers no unfair prejudice if a single trial is
conducted for all the charges. See [People v Mayfield, 221 Mich App 656, 659
660; 562 NW2d 272 (1997)]. Specifically, these “safeguards” are (1) the
introduction by stipulation of the fact of the defendant’s prior conviction, (2) a
limiting instruction emphasizing that the jury must give separate consideration to
each count of the indictment, and (3) a specific instruction to consider the prior
conviction only as it relates to the felon-in-possession charge. See id at 660,
citing United States v Mebust, 857 F Supp 609, 613 (ND Ill, 1994).
In this case, defendant’s prior felony conviction was introduced by stipulation, the specific
nature of defendant’s prior conviction was not mentioned apart from the initial remark to the
prospective jury panel, and the trial court instructed the prospective jury panel that the charges in
the information were not evidence of defendant’s guilt. Although the trial court did not instruct
the jury that defendant was entitled to a separate determination regarding each of the charges
against him or that defendant’s prior conviction was to be considered only as it related to
defendant’s felon in possession of a firearm charge, defendant never requested such instructions.
Despite the fact that the trial court did not give defendant all of the safeguards set forth in Green,
supra at 691-692, these safeguards were available, and defendant failed to avail himself of these
safeguards. Therefore, the trial court’s failure to follow all of the safeguards set forth in Green,
1
In support of his argument, defendant cites several cases and court rules governing the
admission of evidence. However, defendant alleges error with the reading of the information to
the jury and the trial court’s instructions to the jury—neither of which are evidence. Therefore,
because no evidence was ever admitted that defendant has a prior felony conviction, the
authorities cited by defendant are not applicable to this case.
2
Because defendant expressly agreed to this instruction, he waived any argument that this
instruction was erroneous. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).
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supra at 691-692, did not amount to a plain error that affected defendant’s substantial rights.
Green, supra at 692; People v Mayfield, 221 Mich App 656, 660-661; 562 NW2d 272 (1997).
III. Prosecutorial Misconduct
Next, defendant argues that he was denied a fair and impartial trial because the
prosecutor vouched for her own witnesses. We review de novo claims of prosecutorial
misconduct to determine whether the defendant was denied a fair and impartial trial. People v
Ackerman, 257 Mich App 434, 448; 669 NW2d 818 (2003). But because defendant failed to
object to the alleged prosecutorial misconduct, this issue is unpreserved, and our review is
limited to determining whether there was plain error that affected defendant’s substantial rights.
Carines, supra at 774; People v Leshaj, 249 Mich App 417, 419; 641 NW2d 872 (2002). In
cases involving unpreserved allegations of prosecutorial misconduct, “[n]o error requiring
reversal will be found if the prejudicial effect of the prosecutor’s comments could have been
cured by a timely instruction.” Id.
Defendant argues that the prosecutor vouched for her own witnesses when she stated
during voir dire that police officers had special training in different areas, and that certain police
officers might have certain areas of expertise based on this specialized training. A prosecutor
may not vouch for the credibility of a witness by suggesting that the government has some
special knowledge, not known to the jury, that the witness is testifying truthfully. People v
Bahoda, 448 Mich 261, 276; 531 NW2d 659 (1995); People v Rodriguez, 251 Mich App 10, 31;
650 NW2d 96 (2002). Here, however, a review of the prosecutor’s voir dire in context shows
that she was not vouching for the officers’ credibility or implying that she had some special
knowledge that they were testifying truthfully, but was instead was providing a reasonable
explanation for why some officers might have more expertise in the area of illegal drugs. It is
not improper for a prosecutor to comment on the training and expertise of law enforcement
officers. People v Ramsdell, 230 Mich App 386, 404; 585 NW2d 1 (1998).
IV. Sufficiency of the Evidence
Next, defendant argues that the evidence was insufficient to support his conviction for
conspiracy to manufacture forty-five kilograms or more of marijuana. “A trial court assesses the
merits of a directed verdict motion through consideration of the evidence presented by the
prosecution in a light most favorable to the prosecution, to determine whether a rational trier of
fact could find that the elements of a crime were proven beyond a reasonable doubt.” People v
Jolly, 442 Mich 458, 466; 502 NW2d 177 (1993) (emphasis deleted). We apply the same
standard in reviewing such a motion. People v Daniels, 192 Mich App 658, 665; 482 NW2d 176
(1991).
Defendant argues that the evidence was insufficient to support a conspiracy in this case.
In People v Justice (After Remand), 454 Mich 334, 345-346; 562 NW2d 652 (1997), our
Supreme Court explained the elements of conspiracy:
Conspiracy is defined by common law as “ ‘a partnership in criminal
purposes . . . .’ ” People v Atley, 392 Mich 298, 310; 220 NW2d 465 (1974),
quoting United States v Kissel, 218 US 601, 608; 31 S Ct 124; 54 L Ed 1168
(1910). Under such a partnership, two or more individuals must have voluntarily
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agreed to effectuate the commission of a criminal offense. Establishing that the
individuals specifically intended to combine to pursue the criminal objective of
their agreement is critical because “ ‘the gist of the offense of conspiracy lies in
the unlawful agreement’ . . . [meaning] . . . the crime is complete upon formation
of the agreement . . . .” People v Carter, 415 Mich 558, 568; 330 NW2d 314
(1982).
The specific intent to combine, including knowledge of that intent, must
be shared by two or more individuals because “there can be no conspiracy without
a combination of two or more.” People v Blume, 443 Mich 476, 485; 505 NW2d
843 (1993); Atley, supra at 310. This combination of two or more is essential
because “the rationale underlying . . . [the crime of] conspiracy . . . is based on the
increased [societal] dangers presented by the agreement between the plurality of
actors.” People v Davis, 408 Mich 255, 273 n 5, 279; 290 NW2d 366 (1980).
Accordingly, there must be proof demonstrating that the parties specifically
intended to further, promote, advance, or pursue an unlawful objective. Atley,
supra at 311.
Here, when police announced their presence at the Ravenswood house, defendant and
two others crawled out. Defendant admitted to police that he lived at the house and had grown
the marijuana. Inside the house, police found residency papers for Mustafa Muhammad-El and
an invoice for ten bulletproof vests ordered by Muhammed-El. A note found in the house
specifically asked for help protecting the house from police and other people. “[D]irect proof of
the conspiracy is not essential; instead, proof may be derived from the circumstances, acts, and
conduct of the parties.” Justice, supra at 347. Circumstantial evidence and reasonable
inferences drawn from it may be sufficient to prove the elements of the crime. Jolly, supra at
466. We conclude that, viewing this evidence in a light most favorable to the prosecution, a
rational trier of fact could have inferred from this circumstantial evidence that defendant had
agreed with another person to manufacture the marijuana found in the house.
V. Jury Instructions Regarding Conspiracy
Next, defendant argues that the trial court’s conspiracy jury instruction erroneously
omitted the element that the conspiracy must be between defendant and a specified person.
However, defendant failed to object at trial to the court’s conspiracy instruction. Furthermore,
defendant affirmatively approved the trial court’s instructions to the jury. By expressly
approving the jury instructions, defendant has waived this issue on appeal. People v Carter, 462
Mich 206, 215; 612 NW2d 144 (2000); People v Lueth, 253 Mich App 670, 688; 660 NW2d 322
(2002).
VI. Sentencing
Finally, defendant argues that his sentence for manufacture of forty-five kilograms or
more of marijuana, second offense, was disproportionate. Because defendant committed the
offenses after January 1, 1999, the legislative sentencing guidelines apply. MCL 769.34(2);
People v Reynolds, 240 Mich App 250, 253; 611 NW2d 316 (2000). However, the trial court in
this case did not apply the legislative guidelines to defendant’s conviction for manufacture of
forty-five kilograms or more of marijuana, second offense, because the prosecutor informed the
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court that no guidelines existed for sentencing a second-offense drug offender under MCL
333.7413(2). Defendant did not argue in the trial court or initially on appeal3 that the trial court
should have applied the legislative sentencing guidelines in sentencing defendant for
manufacture of forty-five kilograms or more of marijuana, second offense. Therefore, this issue
is not properly preserved or presented for appeal. However, this Court may address issues not
raised by the parties when “further or different relief” is required. MCR 7.216(A)(7). We
review this unpreserved sentencing issue to determine if the trial court committed plain error that
affected defendant’s substantial rights. People v Callon, 256 Mich App 312, 332; 662 NW2d
501 (2003).
Defendant was convicted as a second-offender for a controlled substance offense, MCL
333.7413(2), and as a second habitual offender, MCL 769.10.4 MCL 333.7413(2) provides:
Except as otherwise provided in subsections (1) and (3), an individual
convicted of a second or subsequent offense under this article may be imprisoned
for a term not more than twice the term otherwise authorized or fined an amount
not more than twice that otherwise authorized, or both.
MCL 777.18 specifically provides that the legislative sentencing guidelines apply to convictions
under MCL 333.7413(2). The provision in MCL 333.7413(2) that a defendant may be
imprisoned for a term not more than twice the sentence normally allowed does not affect the
applicability of the guidelines or the guidelines range for the minimum sentence. In imposing
defendant’s minimum sentence for manufacture of forty-five kilograms or more of marijuana,
second offense, the trial court should have determined the guidelines range for the underlying
offense. MCL 777.21(4). Under MCL 333.7413(2), the trial court has the authority to impose a
sentence up to twice the longest term otherwise authorized.
Because the trial court did not apply the legislative guidelines in sentencing defendant for
manufacture of forty-five kilograms or more of marijuana, second offense, and sentenced
defendant to a minimum sentence that was above any possible guidelines range without stating
substantial and compelling reasons for the departure, the trial court committed plain error that
affected defendant’s substantial rights. Therefore, we remand this case for resentencing of
defendant’s manufacture of forty-five kilograms or more of marijuana conviction under the
legislative guidelines.5 If the trial court chooses to depart from the guidelines, it must state
3
Defendant addressed this issue in a supplemental brief submitted pursuant to an order of this
Court.
4
A second habitual offender may be sentenced “to imprisonment for a maximum term that is not
more than 1-½ times the longest term prescribed for a first conviction of that offense or for a
lesser term.” MCL 769.10(1)(a). In People v Fetterley, 229 Mich App 511, 540; 583 NW2d 199
(1998), this Court held, “Where a defendant is subject to sentence enhancement under the
controlled substance provisions, the sentence may not be doubly enhanced under the habitual
offender provisions.”
5
Because we remand this case for resentencing, we need not address defendant’s argument that
his sentence was disproportionate. However, we note that defendant’s reliance on People v
(continued…)
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substantial and compelling reasons for doing so. MCL 769.34(3); People v Babcock, 469 Mich
247, 256; 666 NW2d 231 (2003).
Affirmed in part, vacated in part, and remanded. We do not retain jurisdiction.
/s/ William C. Whitbeck
/s/ Brian K. Zahra
/s/ Pat M. Donofrio
(…continued)
Moore, 432 Mich 311; 439 NW2d 684 (1989), for the proposition that resentencing is required
because he has no reasonable prospect of serving his minimum sentences in his lifetime
(defendant will be seventy-three years old on the date of his earliest possible release from prison)
is misplaced, as the holding in Moore has been overruled by People v Merriweather, 447 Mich
799; 527 NW2d 460 (1994). See People v Lemons, 454 Mich 234, 257; 562 NW2d 447 (1997);
People v Phillips (After Second Remand), 227 Mich App 28, 31 n 2; 575 NW2d 784 (1997);
People v Kelly, 213 Mich App 8, 15; 539 NW2d 538 (1995).
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