PEOPLE OF MI V PAUL ADAM TORRES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 22, 2011
Plaintiff-Appellee,
v
No. 296025
Lenawee Circuit Court
LC No. 09-014276-FH
PAUL ADAM TORRES,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 296026
Lenawee Circuit Court
LC No. 09-014277-FH
PAUL ADAM TORRES,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 296027
Lenawee Circuit Court
LC No. 09-014288-FH
PAUL ADAM TORRES,
Defendant-Appellant.
Before: K. F. KELLY, P.J., and BORRELLO and RONAYNE KRAUSE, JJ.
PER CURIAM.
Defendant was convicted in a jury trial of two counts of manufacture/delivery of a
controlled substance (cocaine), MCL 333.7401(2)(a)(iv) (less than 50 grams), possession with
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intent to deliver a controlled substance (cocaine), MCL 333.7401(2)(a)(iv) (less than 50 grams),
and maintaining a drug house, MCL 333.7405(d). Defendant was sentenced to 46 to 480
months’ imprisonment for each of his manufacture/delivery of a controlled substance
convictions, to 46 to 480 months’ imprisonment for his possession with intent to deliver a
controlled substance, and, as a second habitual offender, MCL 769.10, to 21 to 36 months’
imprisonment for his maintaining a drug house conviction. He appeals as of right. Because we
conclude that there were no errors requiring reversal, we affirm.
I. BASIC FACTS
This case concerns a number of drugs transactions between an informant and defendant
in May 2008. Randi Carr, the informant, was arrested on May 9, 2008, and was charged with
possession with intent to deliver Ecstasy, possession with intent to deliver cocaine, and
possession with intent to deliver marijuana. Carr made a deal with the OMNI unit, the state
police drug unit covering the city of Adrian and Lenawee County, to act as an informant in
exchange for pleading guilty to one charge of possession of cocaine. Carr arranged to purchase
cocaine from defendant, whom Carr previously had met through a friend and from whom Carr
had previously purchased drugs.
On May 12, 2008, Carr went to defendant’s house, located on Erie Street and obtained
defendant’s telephone number from defendant’s cousin. Carr spoke with Police Investigator
Gregory Walsh and then called defendant around 9:15 p.m. to see if she could buy drugs from
him. Defendant told Carr that he would be home in 15 minutes and she could stop by then. Carr
went to the state police department in Adrian where she was searched by the police and where
she received some prerecorded money totaling $120 from Walsh. Carr then drove her black
Durango directly to defendant’s house located at 811 Erie Street in Adrian. Walsh followed Carr
to the scene. Upon arriving at defendant’s house, Carr parked across the street. She got out of
her car and went to the front door of defendant’s house. Defendant let her in to his house, and
Carr stood in defendant’s living room until defendant gave Carr a baggie of drugs. In return,
Carr gave defendant the money she received from Walsh. Carr left defendant’s house, returned
to her car and drove to the state police department. Carr gave the drugs she obtained from
defendant to the police.
A couple days later, on May 14, 2008, Carr called defendant a second time to see if she
could purchase additional drugs. Carr again went to the state police department in Adrian where
she was searched and received prerecorded money, this time totaling $220, from Walsh. Carr
drove from the police department in her black Durango to defendant’s house on Erie Street. This
time, Carr parked directly in front of defendant’s house. Again, Carr exited her car and went to
defendant’s front door. Defendant opened the door and accompanied Carr to his kitchen.
Defendant handed Carr a baggie with cocaine in it in the kitchen, and Carr gave defendant the
money she received from Walsh. Carr left and returned to her vehicle. Carr drove back to the
state police department. After arriving at the police department, Carr gave the drugs she
obtained from defendant to Walsh.
Following the second transaction between defendant and Carr, Walsh obtained a search
warrant for defendant’s house. On May 15, 2008, at 10:15 p.m., Walsh and other police officers
searched defendant’s house, pursuant to the warrant. They approached defendant’s front door
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and yelled, “Police. Search Warrant.” No one answered the door. They used a ram to open the
door and entered defendant’s house. No one was in the house when the police entered and
searched it. In the kitchen, they found a digital scale and, in a trash bin by the refrigerator, a
bunch of baggies with the corners ripped off. According to Walsh, baggies with missing corners
are evidence of drug manufacture. They also located a receipt in the garbage with defendant’s
name on it, dated April 30, 2008. They further found an ounce of cocaine in baggies inside a
vitamin container on the kitchen counter. Walsh discovered mail with defendant’s name on it
and the address for his house, 811 Erie Street, on the dining room table. Walsh also found mail
addressed to other people.
On June 14, 2008, defendant signed “an official document” affirming that he resided at
811 Erie Street in Adrian and had been living there for approximately one year. Moreover,
Walsh verified that defendant’s address with the Secretary of State was 811 Erie Street in
Adrian. Defendant was not the owner of the house, and Walsh was unable to find a lease with
defendant’s name on it.
Walsh delivered the three packets of alleged cocaine obtained through the transactions
with defendant and from 811 Erie Street to Michigan state police controlled substance analyst,
Elaine Daugherty, who tested them. All three packets did contain cocaine. The first sample
from May 12, 2008 weighed 3.52 grams; the second amount from May 14, 2008 weighed 6.56
grams; and the third sample from May 15, 2008 weighed 7.12 grams.
After the prosecution completed its proofs, defendant moved for a directed verdict on all
four charges, which was denied. Defendant was convicted on all counts charged. Following his
jury trial, a hearing was held regarding whether defendant was subject to a sentence
enhancement. Defendant agreed that he had a prior conviction. Although recognizing that the
punishment was “harsh[,]” the trial court decided to double the guidelines range for his
controlled substances convictions and order defendant to serve the terms of imprisonment
consecutively. Defendant now appeals.
II. JURY INSTRUCTIONS
Defendant argues on appeal that, with regard to what occurred on May 15, 2008, the trial
court improperly instructed the jury on the elements of possession with intent to deliver a
controlled substance, a crime for which he was not charged. We disagree.
As this issue was not preserved at the trial court, we review the issue for plain error.
People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999). A defendant must establish that
the error was plain, and that the error affected the outcome of the proceedings. Id. at 763.
Reversal is warranted only when the plain, forfeited error resulted in the conviction of an
actually innocent defendant or when the error seriously affected the fairness, integrity or public
reputation of judicial proceedings independent of the defendant’s innocence. Id. at 774.
“A criminal defendant is entitled to have a properly instructed jury consider the evidence
against him.” People v Dupree, 486 Mich 693, 712; 788 NW2d 399 (2010) (internal quotation
marks omitted). “A trial judge must instruct the jury as to the applicable law, and fully and fairly
present the case to the jury in an understandable manner.” People v Waclawski, 286 Mich App
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634, 676; 780 NW2d 321 (2009). Jury instructions are reviewed “in their entirety to determine if
error requiring reversal occurred.” People v Chapo, 283 Mich App 360, 373; 770 NW2d 68
(2009) (internal quotation marks omitted). Even if imperfect, reversal is not required if jury
instructions “fairly present the issues to be tried and sufficiently protect the defendant’s rights.”
Id. However, the omission of an element of the crime in the jury instructions is a constitutional
error. People v Martin, 271 Mich App 280, 338; 721 NW2d 815 (2006).
In his felony information, defendant was charged with “delivery/manufacture” of a
controlled substance under MCL 333.7401(2)(a)(iv) for the events that occurred on May 15,
2008. With regard to May 15, 2008, the trial court instructed the jury as follows:
[D]efendant is charged with the crime of illegal possessing, with intent to deliver,
7.12 grams of a mixture containing controlled substance, cocaine. To prove this
charge, the prosecutor must prove each of the following elements:
First, that . . . defendant knowingly possessed a controlled substance.
Second, that . . . defendant intended to deliver this substance to someone else.
Third, that the substance possessed was cocaine, and . . . defendant knew it was.
Fourth, that the substance was in a mixture and weighed 7.12 grams.
Fifth, that . . . defendant was not legally authorized to possess this substance.
Defendant argues that the trial court improperly instructed the jury on possession with
intent to deliver a controlled substance, a crime for which he was not charged, instead of
manufacture/delivery of a controlled substance, which appeared in the felony information, for
what transpired on May 15, 2008. However, defendant does not allege that he was not aware of
the nature and character of the crime for which he was accused or that he was unable to prepare a
defense. MCL 767.45(1); People v Weathersby, 204 Mich App 98, 101; 514 NW2d 493 (1994)
quoting People v Adams, 389 Mich 222, 243; 205 NW2d 415(1973) (The indictment or
information must identify the charge sufficiently that the defendant's “acquittal or conviction
[would] bar a subsequent charge for the same offense” and must notify the defendant “of the
nature and character of the crime with which he is charged so as to enable him to prepare his
defense and permit the court to pronounce judgment[.]”) In fact, the statute under which
defendant was charged, MCL 333.7401, prohibits a defendant from “manufactur[ing], creat[ing],
deliver[ing], or possess[ing] with intent to manufacture, create or deliver a controlled
substance[.]” MCL 333.7401(1).1 In other words, MCL 333.7401 forbids both the act of
delivering a controlled substance and the act of possessing a controlled substance with the intent
1
Defendant was charged specifically under MCL 333.7401(2)(a)(iv). Section (2)(a)(iv) refers to
the amount of controlled substance at issue: in this case, less than 50 grams. However, the acts
prohibited with regard to that amount are delineated in MCL 333.7401(1).
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to deliver. As a result, defendant was apprised, based on the statutory citation in the felony
information, of the type of conduct that was proscribed.
Moreover, at trial, defendant was clearly aware that he was being tried for possession
with intent to deliver for what occurred on May 15, 2008. The prosecutor stated in his opening:
The possession with intent to deliver cocaine charge, which is the third of these
three incidents, occurring on May 15th of 2008, there is no sale, but the penalty—
excuse me, the crime that is being alleged here is very similar in that they’re
saying [defendant] had this cocaine, it was in his possession, it was under his
control, and he had it for purposes of selling it at a later point.
Defense counsel did not object to the prosecutor’s opening statement. Indeed, during his motion
for a directed verdict, defense counsel stated:
We move to the May 15th issues of the possession with intent to deliver and
maintaining the drug house. Again, no indication outside of a couple of – we
have testimony that, on official documents, [defendant] listed that as his residence
from a period of July [20]07 to September, roughly, . . . 2008. But, again, no one
putting him in the house roughly—the last time somebody put him in the house
was two weeks before May 12th and nothing after that. Two mailings, one March
10th, and then a bill of some sort for February of 2008 and nothing closer in time
to that except for a receipt, with no identification of an address, that was thrown
in the garbage, dated April 30th, 2008, which roughly puts within that two weeks
prior to May 12th. Nothing to indicate that [defendant] had knowledge of what
was going on in that house or had possession of any kind of narcotics in that
house. [Emphasis added.]
As a result, defendant was plainly aware that he was being tried for possession with intent to
deliver a controlled substance for the events of May 15, 2008. Accordingly, the trial court did
not err in instructing the jury on the elements of possession with intent to deliver.
In any event, any error in the information could have been cured through an amendment.
“The court may at any time before, during or after trial amend the indictment in respect to any
defect, imperfection or omission in for substance or of any variance with the evidence.” MCL
767.76 (emphasis added). As a result, defendant cannot show that the forfeited error affected the
outcome of the proceedings.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant next contends that his counsel was ineffective for failing to object to the
instructions given to the jury. Because we conclude that any objection would have been futile,
we disagree.
With regard to claims of ineffective assistance of counsel, we review the trial court’s
factual findings for clear error and its constitutional determinations are reviewed de novo.
People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). As defendant did not establish a
testimonial record regarding the ineffective assistance of counsel claim, our review is limited to
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mistakes apparent on the record. People v Wilson, 242 Mich App 350, 352; 619 NW2d 413
(2000).
Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise. People v LeBlanc, 465 Mich 575, 578; 640 NW2d 246 (2002). Generally, to
establish ineffective assistance of counsel, a defendant must show: (1) that counsel’s
performance was below an objective standard of reasonableness under prevailing professional
norms; and (2) that there is a reasonable probability that, but for counsel’s error, the result of the
proceedings would have been different. Strickland v Washington, 466 US 668, 688, 694; 104 S
Ct 2052; 80 L Ed 2d 674 (1984); People v Frazier, 478 Mich 231, 243; 733 NW2d 713 (2007).
A lawyer is not ineffective for failing to assert a futile objection. People v Unger, 278 Mich App
210, 256; 749 NW2d 272 (2008).
Defense counsel was not ineffective for failing to object to the jury instructions given by
the trial court because the objection would have been futile. As discussed above, concerning
May 15, 2008, defendant was charged under MCL 333.7401, which encompasses the act of
delivering a controlled substance and the deed of possessing a controlled substance with the
intent to deliver. Moreover, defendant was obviously informed during trial that he was charged
with possession with intent to deliver as evidenced by the prosecutor’s statement during his
opening and defense counsel’s argument during his motion for directed verdict regarding the
charge of possession with intent to deliver. As a result, the trial court’s instructions to the jury
were proper and any objection to them would have been groundless. Consequently, defense
counsel’s performance was not deficient for failing to object, and defendant was not denied the
effective assistance of counsel.
Even if defense counsel was deficient for failing to object to the jury instructions,
defendant cannot show he suffered prejudice. Since the trial court can amend the information at
any time, MCL 767.76, it could have amended the information to reflect a charge of possession
with intent to deliver. Moreover, because, based on the evidence in the record, defendant had
“not been misled or prejudiced by the defect or variance” in the information, since he was plainly
aware of the charge of possession with intent to deliver, defendant would not have been entitled
to a discharge of the jury. MCL 767.76.
IV. SUFFICIENCY OF THE EVIDENCE
Defendant asserts that the prosecution presented insufficient evidence to convict him of
manufacture/delivery of a controlled substance under MCL 333.7401 for the events occurring on
May 15, 2008. However, as discussed above, defendant was tried and convicted of possession
with intent to deliver a controlled substance for what occurred on May 15, 2008, and not
manufacture/delivery of a controlled substance. As a result, we need not address whether there
was sufficient evidence to convict defendant of manufacture/delivery of a controlled substance.
To the extent that defendant is arguing that there was insufficient evidence for his possession
with intent to deliver a controlled substance, we disagree.
When analyzing a claim based on insufficient evidence, we review the record de novo.
People v Cline, 276 Mich App 634, 642; 741 NW2d 563 (2007). We review the evidence in a
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light most favorable to the prosecutor and determine whether a rational trier of fact could find
that the essential elements of the crime were proven beyond a reasonable double. Id.
To prove that a defendant possessed a controlled substance with intent to deliver, a
prosecutor must show: (1) that the substance was a controlled substance, “(2) the weight of the
substance, (3) that the defendant was not authorized to possess the substance, and (4) that the
defendant knowingly possessed the substance with intent to deliver.” MCL 333.7401(1); People
v McGhee, 268 Mich App 600, 622; 709 NW2d 595 (2005). Possession may be demonstrated
through actual or constructive possession. People v Johnson, 466 Mich 491, 500; 647 NW2d
480 (2002). Constructive possession occurs “when the totally of the circumstances indicates a
sufficient nexus between the defendant and the contraband.” Id. “Intent to deliver may be
inferred from the quantity of drugs possessed by a defendant[,]” and from prior instances of
delivery. McGhee, 268 Mich App at 611.
There was sufficient evidence that defendant possessed with intent to deliver cocaine on
May 15, 2008. The prosecution demonstrated that the substance found in defendant’s house on
May 15, 2008, was cocaine and weighed 7.12 grams. Additionally, defendant was not
authorized to have the cocaine. Moreover, sufficient evidence was presented that defendant
constructively possessed the cocaine with intent to deliver. Defendant clearly lived at 811 Erie
Street. Mail was discovered there with defendant’s name on it and the address 811 Erie Street;
he used that address with the secretary of state; and he affirmed that he lived there on an official
document. Further, Carr testified that she purchased cocaine from defendant at 811 Erie Street
on May 12, 2008 and May 14, 2008. There was sufficient evidence that defendant had intent to
deliver based on the amount of drugs found, the scale and baggies discovered in the kitchen, and
the fact that Carr had previously purchased drugs from defendant. Viewing the evidence in the
light most favorable to the prosecution, sufficient evidence was admitted to convict defendant of
possession with intent to deliver cocaine for the events of May 15, 2008.
V. SENTENCING
Defendant’s final issue on appeal is that the trial court erred in enhancing defendant’s
sentence and ordering defendant to serve the sentences consecutively. We disagree.
“The imposition of a sentence is reviewed for an abuse of discretion.” People v
Underwood, 278 Mich App 334, 337; 750 NW2d 612 (2008). We review de novo issues of
statutory interpretation on appeal. People v Lowe, 484 Mich 718, 720; 773 NW2d 1 (2009).
A person convicted of a second or subsequent controlled substance offense under Article
7 of the Public Health Code, MCL 333.7401 et seq., “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 333.7413(2); People v Davenport, 205 Mich App 399, 401; 522
NW2d 339 (1994) (emphasis added). This sentence enhancement provision “allows a sentencing
court to punish repeat drug offenders by doubling the . . . sentence otherwise authorized.” Id.
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Enhancement of the sentence is discretionary with the sentencing court. People v Green, 205
Mich App 342, 347; 517 NW2d 782 (1994). This sentencing enhancement applies to the
minimum sentence as calculated under the legislative guidelines scheme. MCL 777.18; People v
Williams, 268 Mich App 416, 430; 707 NW2d 624 (2005).2
Additionally, a term of imprisonment for certain controlled substances offenses under
MCL 333.7401 may be imposed consecutively to any term inflicted for the commission of
another felony. MCL 333.7401(3); Davenport, 205 Mich App at 401. “Another felony” may
include an additional controlled substances violation. Id. at 402. A defendant who is sentenced
under the enhanced sentence provisions of the Public Health Code for controlled substances
violations may also be sentenced to consecutive terms for those enhanced sentences. MCL
333.7401(3); MCL 333.7413(2); Davenport, 205 Mich App at 402.
The trial court did not err in enhancing defendant’s sentences and in ordering defendant
to serve them consecutively. Defendant acknowledged that before this trial he had previously
been convicted of possession with intent to deliver cocaine. Defendant then was convicted of
three controlled substance offenses under MCL 333.7401(2)(a)(iv). As a result, each of those
convictions is subject to the enhancement under MCL 333.7413(2) at the discretion of the trial
court. Additionally, according to MCL 333.7401(3), each sentence may be served consecutively.
Consequently, we cannot conclude that the trial abused its discretion in doubling the guidelines
range for each of defendant’s controlled substance convictions and in ordering defendant to serve
those sentences consecutively.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
/s/ Amy Ronayne Krause
2
If the sentence enhancement under MCL 333.7413(2) is applied, the general habitual offender
statute does not apply. MCL 769.10(1)(c); People v Wyrick, 265 Mich App 483, 493; 695 NW2d
555 (2005), vacated in part on other grounds, 474 Mich 947 (2005).
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