PEOPLE OF MI V KARL KELVIN ROSS
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 15, 2009
Plaintiff-Appellee,
v
No. 280310
Berrien Circuit Court
LC No. 2007-402223-FH
KARL KELVIN ROSS,
Defendant-Appellant.
Before: Beckering, P.J., and Whitbeck and M. J. Kelly, JJ.
PER CURIAM.
Defendant appeals as of right his jury convictions for possession with intent to deliver
less than 50 grams of a mixture containing a controlled substance, MCL 333.7401(2)(a)(iv), and
maintaining a drug house, MCL 333.7405(1)(d). We affirm.
I. Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence for both convictions. When
reviewing a challenge to the sufficiency of the evidence, we review the evidence in a light most
favorable to the prosecution and determine whether a rational trier of fact could have found the
elements of the crime beyond a reasonable doubt. People v Petrella, 424 Mich 221, 268-269;
380 NW2d 11 (1985). On review, we will not interfere with the jury’s role of determining the
weight of the evidence or the credibility of witnesses. People v Avant, 235 Mich App 499, 506;
597 NW2d 864 (1999). “Circumstantial evidence and reasonable inferences arising from that
evidence can constitute satisfactory proof of the elements of a crime.” People v Lee, 243 Mich
App 163, 167-168; 622 NW2d 71 (2000).
To prove that defendant committed the crime of possession with intent to deliver less
than 50 grams of heroin, the prosecution was required to prove that (1) defendant knowingly
possessed heroin, (2) defendant intended to deliver the heroin to someone else, (3) the substance
possessed was heroin and defendant knew it was heroin, and, in this case, (4) the mixture
containing the heroin weighed less than 50 grams. People v Crawford, 458 Mich 376, 389; 582
NW2d 785 (1998). Defendant only challenges the element of possession.
Possession may be actual or constructive, and it may be joint. People v Hardiman, 466
Mich 417, 421; 646 NW2d 158 (2002). A defendant constructively possesses narcotics if he has
a right to control them and knows of their presence. Id. at 421 n 4, citing People v Wolfe, 440
-1-
Mich 508, 520; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). The defendant’s mere
presence at the location where the drugs are found is, however, insufficient to prove constructive
possession. An additional connection between the defendant and the contraband must be shown.
Hardiman, supra at 421, citing Wolfe, supra at 520.
We find that the prosecution proved more than defendant’s mere presence at 234 Lormar.
The evidence and reasonable inferences drawn from that evidence were sufficient to prove that
defendant constructively possessed the heroin. He had the right to control it and knew of its
presence. At the preliminary examination, Kristen Horne, defendant’s girlfriend, testified that
defendant sold heroin and that she only sold heroin when defendant told her to. She testified that
in the past, defendant had threatened her and struck her for refusing to sell it.1 Moreover, the
evidence at trial established that defendant lived at the home where the heroin was located and
came into contact with the heroin at issue. The plate of heroin upon which the possession charge
was based was found in defendant’s bedroom closet with his fingerprint on it. The lottery slips,
yellow seals and plastic baggies with heroin residue were found in the open area of the basement
where defendant sometimes slept. Documents belonging to defendant were found in defendant’s
bedroom and in the open area of the basement. These facts prove that defendant had use of and
control over the two areas of the house where the incriminating evidence was found. In addition,
before defendant’s arrest, Horne sold heroin to a police informant. Money from the controlled
purchase was found in defendant’s pants pocket at the time of his arrest. This fact corroborated
Horne’s testimony that she sometimes sold heroin when defendant told her to and that she would
then give the money to defendant. Viewing the evidence in a light most favorable to the
prosecution, it is reasonable to infer that defendant constructively possessed the heroin.
To prove that defendant committed the crime of maintaining a drug house, the
prosecution was required to prove that (1) defendant knowingly kept or maintained a dwelling,
(2) this dwelling was used for illegally keeping controlled substances or used for illegally selling
controlled substances, and (3) defendant knew that the dwelling was frequented or used for such
illegal purposes. The prosecution was also required to prove that defendant kept or sold drugs
out of the house on more than one isolated occasion. To “keep or maintain” requires “some
degree of continuity.” People v Thompson, 477 Mich 146, 154; 730 NW2d 708 (2007).
The first and second elements are undisputed. And, viewed in a light most favorable to
the prosecution, there is no question that defendant knew the dwelling was frequented or used for
illegal purposes. The plate of heroin was found in defendant’s bedroom with his fingerprint on
it. The lottery slips, yellow seals, and baggies with heroin residue were found in the open area of
the basement where Horne and defendant sometimes slept. Documents belonging to defendant
were found in the same area of the basement. The controlled purchase money was in defendant’s
pants pocket. Reasonable inferences from this evidence are that defendant had control over
those portions of the house where the heroin was located or packaged and knew that the heroin
was being kept in his house. Horne’s preliminary examination testimony additionally supports
these inferences.
1
At trial, pursuant to MRE 801(d)(1), most of the videotape of Horne’s testimony at the
preliminary examination was played for the jury and admitted as substantive evidence.
-2-
The prosecution also presented sufficient evidence to prove “some degree of continuity.”
Because the amount of heroin found would constitute about 20 to 25 doses and there were a large
quantity of lottery strips, a reasonable inference would be that defendant was packaging and
selling many individual doses. Further, Horne testified that defendant had been packaging and
selling heroin for about two weeks. And, a controlled buy had taken place, yet there was
additional quantities of heroin that could have been sold.
II. Offense Variable 14
Defendant next argues that the scoring of offense variable (OV) 14, MCL 777.44, was in
error as the prosecution failed to meet its burden of proof.2 We disagree. Where the sentence
imposed is within the sentencing guidelines, a trial court’s scoring of the OVs will be upheld if
there is any evidence to support the score. People v Endres, 269 Mich App 414, 417; 711 NW2d
398 (2006).
If the offender is a leader in a multiple offender situation, OV 14 can be scored at ten
points. MCL 777.44(1)(a). When scoring this variable, the entire criminal transaction should be
considered. MCL 777.44(2)(a).
We find that the record sufficiently supports the trial court’s scoring of OV 14. First, this
case was a multiple offender situation. Horne admitted selling the heroin to the confidential
informant and she pled guilty to possession of heroin. At the preliminary examination, she
testified that the heroin belonged to defendant, defendant packaged and sold the heroin, and she
occasionally sold the heroin for him because he told her to do so. The heroin was kept in
defendant’s bedroom closet and Horne often stayed with defendant at his house. In addition,
both of their fingerprints were found on the plate containing the heroin and defendant had the
controlled purchase money in his pants pocket. Thus, the trial court was within its authority,
based on the evidence presented, to find that a multiple offender situation existed.
The trial court was also within its authority to find that defendant was the leader. Horne
testified that defendant packaged and sold the heroin. The heroin was in his bedroom. Horne
also testified that she made sales at defendant’s request because he had threatened her and struck
her in the past. The controlled purchase money found in defendant’s pants pocket corroborated
Horne’s testimony that she only sold the heroin pursuant to defendant’s orders. In addition, at
the time of sentencing, Horne had pled guilty as charged to perjury for her false testimony given
at trial wherein she testified that the heroin belonged to her and she sold it. We find that the
2
Defendant also argues that even if there was enough evidence in the record to support the
scoring, he should be resentenced because the trial court failed to properly articulate those facts
upon which it based the scoring. However, because defendant’s sole support for this argument is
United States v Spears, 197 F3d 465 (CA 10, 1999), which is inapplicable because it involved
the federal sentencing guidelines and the case has no precedential value in this Court, we decline
to address this argument.
-3-
record contains adequate evidence to score OV 14 at ten points.
Affirmed.
/s/ Jane M. Beckering
/s/ William C. Whitbeck
/s/ Michael J. Kelly
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.