People of Michigan v. Paul Peter Gross ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 16, 2015
Plaintiff-Appellee,
v No. 318049
St. Clair Circuit Court
PAUL PETER GROSS, LC No. 13-000715-FH
Defendant-Appellant.
Before: HOEKSTRA, P.J., and MARKEY and DONOFRIO, JJ.
PER CURIAM.
A jury convicted defendant of operating or maintaining a methamphetamine laboratory,
MCL 333.7401c(2)(f), possession of methamphetamine, MCL 333.7403(2)(b)(i), resisting or
obstructing a police officer, MCL 750.81d(1), carrying a concealed weapon, MCL 750.227,
possession of a firearm during the commission of a felony, MCL 750.227b, and felon in
possession of a firearm, MCL 750.224f. The trial court sentenced defendant as an habitual
offender, fourth offense, MCL 769.12, to concurrent prison terms of 15 to 30 years each for the
operating or maintaining a methamphetamine laboratory and possession of methamphetamine
convictions, 3 years and 10 months to 15 years for the resisting or obstructing conviction, 4 years
and 10 months to 30 years each for the carrying a concealed weapon and felon-in-possession
convictions, and a consecutive two-year term of imprisonment for the felony-firearm conviction.
Defendant now appeals as of right. For the reasons explained in this opinion, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
While conducting surveillance, a police officer observed defendant with his girlfriend,
Teresa Monzo, at the home of Lucas Bartley. Defendant left the home carrying two bags, a
black bag and a blue and black backpack, and placed them in a Pontiac Sunfire, which had been
borrowed from defendant’s friend, Maria Wlodarczyk. Monzo carried a black drawstring bag
into the car and entered the driver’s seat, with defendant in the front passenger seat and Bartley
in the rear passenger seat. The police requested that a uniformed officer conduct a traffic stop of
the vehicle. After a police cruiser activated its lights to conduct a stop, the vehicle initially
slowed, but then sped up and attempted to flee, resulting in a 34-mile high speed police pursuit.
Monzo testified that defendant directed her not to stop, and directed her where to drive during
the chase. During the chase, items were thrown from the vehicle. In particular, Monzo testified
that defendant threw a gun from the vehicle. Monzo admitted purchasing the gun, but she
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testified that she bought it for defendant because he could not legally purchase a weapon. The
pursuit ended when Monzo lost control of the vehicle and struck a curb, damaging a tire in the
process. After the vehicle stopped, defendant ran from the vehicle, but was apprehended after a
struggle with the police. A gun was later recovered along the route of the police chase.
The police found equipment and ingredients necessary to make methamphetamine inside
the bags that defendant placed in the vehicle. One of those bags also contained mail addressed to
defendant and a prescription bottle with defendant’s name on it. Additionally, evidence of
methamphetamine manufacturing was found in Bartley’s bedroom. Wlodarczyk, Monzo, and
Bartley all testified that defendant produced methamphetamine for their consumption. Monzo
admitted that she assisted defendant in the methamphetamine production by purchasing
pseudoephedrine, crushing the pills, holding hoses, and cleaning the equipment. Monzo
acknowledged at trial that she pled guilty to reduced charges pursuant to a plea agreement that
required her to testify against defendant. Monzo admitted that she gave several prior police
statements that were inconsistent with her trial testimony, but she claimed at trial that those prior
statements were not truthful. Monzo also identified several letters purportedly written by
defendant to her in which he acknowledged his involvement in the charged crimes. A jury
convicted defendant as noted above, and defendant now appeals as of right.
II. ADMISSION OF LETTERS
Defendant first argues that the trial court abused its discretion by admitting the letters that
Monzo testified were written by defendant. Defendant argues that the letters were not timely
produced, that they were not authenticated as having been written by defendant, and that the trial
court unfairly allowed only selected portions of the letters to be introduced, in violation of the
rule of completeness.
A. DISCOVERY
Defendant first complains that the letters were not timely produced during discovery. A
trial court’s decision regarding discovery matters is reviewed for an abuse of discretion. People
v Davie (After Remand), 225 Mich. App. 592, 597-598; 571 NW2d 229 (1997). Under MCR
6.201, upon request, a prosecuting attorney is required to disclose any documents or other papers
that the prosecutor may introduce at trial, MCR 6.201(A)(6), as well as any written statements
made by a defendant, MCR 6.201(B)(3). Parties having a continuing duty to disclose, meaning
that “[i]f at any time a party discovers additional information or material subject to disclosure . . .
the party, without further request, must promptly notify the other party.” MCR 6.201(H). If a
party fails to comply with the discovery rules, the trial court has discretion regarding the
appropriate sanction to impose, which may include the exclusion of the evidence or testimony.
See MCR 6.201(J). When determining the appropriate remedy, “the trial court must balance the
interests of the courts, the public, and the parties in light of all the relevant circumstances,
including the reasons for noncompliance.” People v Banks, 249 Mich. App. 247, 252; 642 NW2d
351 (2002).
In this case, the record discloses that the letters were first given to the prosecutor by
Monzo’s defense attorney during defendant’s trial and that the prosecutor promptly provided
copies to defendant on the same day. Because the prosecutor did not possess the letters before
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trial, and promptly disclosed them when they were received, there was no discovery violation.
Further, although defendant complains that he was prejudiced by the untimely production
because he did not have notice of the letters before trial, defendant wrote the letters and as such
defendant cannot claim that he was unaware of or unfairly surprised by the evidence. See People
v Taylor, 159 Mich. App. 468, 487-488; 406 NW2d 859 (1987). Consequently, the trial court did
not abuse its discretion by failing to exclude the letters under MCR 6.201(J).
B. AUTHENTICATION
Defendant next argues that the letters were never properly authenticated. “While a trial
court's decision to admit or exclude evidence is reviewed for an abuse of discretion, a
preliminary or underlying issue of law regarding the admissibility of the evidence, such as
whether a rule of evidence bars admission, is reviewed de novo.” People v McDade, 301 Mich
App 343, 352; 836 NW2d 266 (2013). “The decision whether a letter has been properly
authenticated for admission into evidence is a matter within the sound discretion of the trial
court.” People v Ford, 262 Mich. App. 443, 460; 687 NW2d 119 (2004). An abuse of discretion
occurs when the trial court’s decision falls outside the range of reasonable and principled
outcomes. People v Yost, 278 Mich. App. 341, 353; 749 NW2d 753 (2008).
MRE 901 governs the requirement of authentication as a condition precedent to the
admission of evidence. In relevant part, MRE 901 states:
(a) General Provision. The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent
claims.
(b) Illustrations. By way of illustration only, and not by way of
limitation, the following are examples of authentication or identification
conforming with the requirements of this rule:
(1) Testimony of Witness With Knowledge. Testimony that a matter is
what it is claimed to be.
***
(4) Distinctive Characteristics and the Like. Appearance, contents,
substance, internal patterns, or other distinctive characteristics, taken in
conjunction with circumstances.
Regarding the application of MRE 901, in McDade, 301 Mich. App. at 352-353, this Court
explained:
An example of authentication or identification that conforms to the
requirements of MRE 901(a) is “[t]estimony that a matter is what it is claimed to
be.” MRE 901(b)(1). “It is axiomatic that proposed evidence need not tell the
whole story of a case, nor need it be free of weakness or doubt. It need only meet
the minimum requirements for admissibility.” People v Berkey, 437 Mich. 40, 52;
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467 NW2d 6 (1991). Further, “a trial court may consider any evidence regardless
of that evidence’s admissibility at trial, as long as the evidence is not privileged,
in determining whether the evidence proffered for admission at trial is
admissible.” People v Barrett, 480 Mich. 125, 134; 747 NW2d 797 (2008).
[Emphasis in original.]
In the present case, 87 pages worth of letters were sent to Monzo, defendant’s girlfriend,
through third parties. The letters were unsigned and Monzo admitted that she was not familiar
with defendant’s handwriting. But, Monzo testified that she identified defendant as the letters’
author based on the letters’ contents. For example, Monzo stated that the letters contained
information that was known only to defendant, including specific intimate details about their
relationship. Cf. Ford, 262 Mich. App. at 461. The letters also contained references to the
writer’s familiarity with details of the charged offenses, such as Monzo’s role as the getaway
driver and Bartley’s participation. Further, the letters contained references to circumstances that
applied to defendant’s situation, such as his status as an inmate and an upcoming preliminary
examination, and the letters identified defendant’s attorney by name, referring to him as “my”
attorney. The letters also acknowledged that the writer, as an inmate, could not pass letters to
other inmates such as Monzo, and therefore described passing letters through cellmates and
others. The contents of the letters, viewed in conjunction with the surrounding circumstances,
were sufficient to support a finding that the letters were authored by defendant, as the prosecutor
claimed. This was sufficient to satisfy the requirement of authentication under MRE 901 and,
contrary to defendant’s arguments on appeal, the prosecution was not required to subject the
letters to fingerprint testing, handwriting analysis, or DNA testing. Further, the fact that the
letters included some information that might have been known to third parties, and that Monzo
admitted that the letters contained some references that were unfamiliar to her, did not compel
exclusion of the letters because evidence need not be free from weakness or doubt to be
admissible. McDade, 301 Mich. App. at 352. The trial court did not abuse its discretion in
determining that the letters were properly authenticated under MRE 901 for admission into
evidence.
C. RULE OF COMPLETENESS
Defendant also argues that the trial court violated the doctrine of completeness by
introducing only selective portions of the letters, and not allowing him to introduce other
portions to provide proper context for the admitted portions. Relevant to defendant’s claim, the
“rule of completeness” is contained in MRE 106, which states:
When a writing or recorded statement or part thereof is introduced by a
party, an adverse party may require the introduction at that time of any other part
or any other writing or recorded statement which ought in fairness to be
considered contemporaneously with it.
MRE 106 allows a defendant to supplement the prosecution’s proofs with additional writings
which in fairness ought to be considered; but this rule does not have any bearing on the
admissibility of the evidence introduced by the prosecutor. People v McGuffey, 251 Mich. App.
155, 161; 649 NW2d 801 (2002). Thus, the rule is only pertinent “if defendant sought, but was
denied, permission to have a complete writing or recorded statement introduced.” Id.
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In this case, the record does not support defendant’s contention that he was denied an
opportunity to introduce additional portions of the letters beyond those portions relied on by the
prosecutor. On the contrary, the record discloses that the prosecutor initially offered
substantially redacted portions of the letters, limited to those portions “that were relevant to
prove our point.” Defense counsel complained that what was being offered was “17 pages of
basically – a 17 page confession.” Counsel requested that the entire letters be admitted under
MRE 106, so that the jury could see the statements in context. The prosecutor stated that she had
no objection to the introduction of the letters in their entirety. The trial court agreed to admit the
letters in their entirety, stating: “I’ll leave it up to the Defense. It will be your choice. Either the
redacted version or the whole version.” The prosecutor subsequently pointed out that several
letters contained references to penalty, defendant’s imprisonment, and defendant’s parole status,
matters that generally should not be disclosed to a jury. The trial court agreed that it was not
necessary or appropriate to present that information to the jury and stated, “we won’t let the jury
see them until both of you have had a chance to go over them together and redact anything of
that nature.” Defendant did not object to the prosecutor’s request to redact the letters to remove
information referring to penalty or to defendant’s criminal history. Ultimately, the prosecutor
introduced a redacted version without references to penalty or defendant’s past criminal history.
In sum, the record discloses that the trial court gave defendant the option of admitting the
letters in their entirety or going with a redacted version. The version introduced at trial was
redacted to exclude portions referring to penalty or to defendant’s prior imprisonment or
parole—information that defendant did not argue was necessary for the jury to hear in order to
properly consider the remaining portions in context. Indeed, these portions were omitted
because of their potential prejudicial effect on defendant and “the ‘doctrine of completeness’ is
inapposite where the omitted portions . . . would have been more harmful than helpful to the
defense.” People v Hoffman, 205 Mich. App. 1, 15; 518 NW2d 817 (1994). Thus, there is no
merit to defendant’s argument that the rule of completeness was violated. Further, given the
prejudicial information contained within the portions of the letters which were excluded, as well
as the other evidence of defendant’s guilt offered at trial, upon examination of the entire cause, it
does not appear more probable than not that any potential error was outcome determinative. See
People v Lukity, 460 Mich. 484, 496; 596 NW2d 607 (1999). Defendant is not entitled to relief
on this basis.
III. ADMISSION OF PRIOR RECORDED STATEMENT
Defendant next argues that the trial court erred by denying his request to play Monzo’s
March 3, 2013 recorded police interview to impeach her trial testimony. In particular, the police
interviewed Monzo several times, and it was not until her interview on June 6, 2013 that Monzo
gave police a statement consistent with her trial testimony. She admitted in her trial testimony
that she lied to police during her previous interviews, including on March 3, 2013, and defendant
now argues that he should have been able to play the entirety of the March 3, 2013 interview for
the jury.
Relevant to defendant’s appellate arguments, the record indicates that before Monzo
testified, defendant expressed an intent to introduce portions of Monzo’s prior recorded police
interviews, if necessary to impeach her trial testimony. Defense counsel expressly indicated that
he only wanted to introduce the portions that were inconsistent with Monzo’s trial testimony. At
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that time, defense counsel opposed the prosecutor’s request to admit the recorded interviews in
their entirety. The trial court ruled in favor of defendant, concluding that only excerpts of the
interviews, those portions that were inconsistent with Monzo’s trial testimony and any
surrounding statements necessary to demonstrate context, would be admitted. Despite this
ruling, defendant later sought to admit Monzo’s entire statement from March 3, 2013, but was
unable to articulate a cogent reason why it was necessary to admit the entire statement.
Consequently, the trial court denied the request, but allowed counsel to cross-examine Monzo
about her prior statement to determine the scope and necessity of any impeachment evidence.
Specifically, at trial, the issue of contention between the parties on this issue appeared to be that,
during redirect examination, Monzo testified that, during the March 3, 2013 interview, she “put
the gun in defendant’s hand.”1 During re-cross examination, however, defense counsel
successfully clarified this statement. That is, upon questioning by defense counsel, Monzo
acknowledged that, on March 3, 2013 she did not tell police that defendant was in possession of
the gun during the February 27, 2013 car chase, she denied that the gun was in her purse that
day, and she did not tell police the gun had been thrown from the car. Considering Monzo’s
testimony, we conclude that the trial court did not abuse its discretion by denying defendant’s
request to play Monzo’s police interview for the jury.
“Under MRE 613, subject to certain restrictions, a witness may be examined concerning
a prior inconsistent statement for impeachment purposes.” People v Rodriguez, 251 Mich. App.
10, 34; 650 NW2d 96 (2002). MRE 613 provides:
(a) Examining Witness Concerning Prior Statement. In examining a
witness concerning a prior statement made by the witness, whether written or not,
the statement need not be shown nor its contents disclosed to the witness at that
time, but on request it shall be shown or disclosed to opposing counsel and the
witness.
(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness.
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible
unless the witness is afforded an opportunity to explain or deny the same and the
opposite party is afforded an opportunity to interrogate the witness thereon, or the
interests of justice otherwise require. This provision does not apply to admissions
of a party-opponent as defined in Rule 801(d)(2).
To impeach a witness with prior inconsistent statements under MRE 613, a party must first lay a
proper foundation “by questioning the witness concerning the time and place of the statement
1
In particular, in reference to the March 3, 2013 interview, while attempting to rehabilitate
Monzo’s credibility, the prosecutor asked Monzo during redirect: “Isn’t it true that prior to June
6th of 2013, that you actually did put the gun in Defendant’s hand?” Monzo responded in the
affirmative. Out of the presence of the jury, the prosecutor later explained that, during an
incident unrelated to the car chase, defendant took the gun from Monzo’s purse and threatened to
kill himself. Monzo apparently referred to this incident when she “put the gun in defendant’s
hand” during the March 3, 2013 police interview.
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and the person to whom it was allegedly made.” Rodriguez, 251 Mich. App. at 34. “When a
witness claims not to remember making a prior inconsistent statement, he may be impeached by
extrinsic evidence of that statement.” People v Jenkins, 450 Mich. 249, 256; 537 NW2d 828
(1995); People v Claybon, 124 Mich. App. 385, 399; 335 NW2d 493 (1983).
In this case, defendant sought to admit Monzo’s entire March 3, 2013 recorded statement
without first laying the proper foundation by establishing that Monzo could not recall making a
prior inconsistent statement. Therefore, the trial court correctly instructed defense counsel to
first ask Monzo appropriate questions to determine whether impeachment through the
presentation of extrinsic evidence was necessary. After asking Monzo additional questions, and
eliciting Monzo’s admission that her police statement on March 3, 2013 was inconsistent with
her trial testimony, defense counsel did not further request or argue that admission of the entire
March 3 recorded interview was necessary. Indeed, given that Monzo admitted her prior
inconsistent statements, proof of these statements through extrinsic evidence under MRE 613(b)
was unnecessary, People v Graves, 15 Mich. App. 244, 246; 166 NW2d 480 (1968), and
accordingly, we find no error.2 Moreover, even assuming that defendant was entitled to admit
the prior recorded interview to demonstrate an inconsistency with Monzo’s trial testimony or to
provide context for her testimony, it is not more probable than not that the error affected the
outcome of the trial because defendant was able to elicit Monzo’s admission at trial that she gave
prior inconsistent statements in her prior interview. Therefore, any error was harmless. People v
Benton, 294 Mich. App. 191, 199, 201-202; 817 NW2d 599 (2011).
V. PROSECUTORIAL MISCONDUCT
Defendant next argues that the prosecutor engaged in misconduct by attempting to
introduce testimony that defendant accompanied Monzo when she attempted to purchase a gun,
and that Monzo appeared to be purchasing the gun on behalf of defendant. The store clerk who
sold the gun to Monzo testified that Monzo was with a male companion, but the clerk was unable
to identify the male companion. The clerk testified that he thought that Monzo was purchasing
the gun for the male companion because it seemed from the way the companion looked and acted
that he was not capable of purchasing a firearm. Defense counsel objected, and the trial court
sustained defendant’s objection to the clerk’s impressions as speculative, struck the testimony,
and instructed the jury not to consider it.
2
As a related matter, there is also no merit to defendant’s argument that the trial court’s refusal
to admit the prior recorded interviews violated his right of confrontation, his right to present a
defense, and his right to due process and a fair trial. The trial court did not deny defendant the
opportunity to confront Monzo and did not deny him the opportunity to impeach Monzo with her
prior inconsistent statements. Rather, the trial court’s exclusion of Monzo’s prior recorded
interview related to the manner of impeachment. The court permitted defense counsel to
question Monzo about her prior recorded statements, and counsel was successful in eliciting
Monzo’s admission that her prior statements were indeed inconsistent with her trial testimony.
In short, defendant was not denied the opportunity to present a defense, he had every opportunity
for confrontation, and he was not denied due process or a fair trial.
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Even though defendant was successful in having the testimony excluded and stricken
from the record, defendant now argues that the prosecutor engaged in misconduct by attempting
to introduce the testimony, which was determined to be inadmissible. Although defendant
successfully objected to the testimony at trial, he did not argue that the attempted introduction of
the testimony constituted prosecutorial misconduct. “[A]n objection on one ground is
insufficient to preserve an appellate argument based on a different ground.” People v Danto, 294
Mich. App. 596, 605; 822 NW2d 600 (2011). Therefore, defendant’s claim of prosecutorial
misconduct is not preserved, and we review this issue for plain error affecting substantial rights.
People v Roscoe, 303 Mich. App. 633, 648; 846 NW2d 402 (2014).
Claims of prosecutorial misconduct are examined on a case-by-case basis, and the
prosecutor’s conduct must be examined in context in light of the entire record. Id. A
prosecutor’s good-faith attempt to admit evidence does not constitute misconduct. People v
Dobek, 274 Mich. App. 58, 70; 732 NW2d 546 (2007). “The prosecutor is entitled to attempt to
introduce evidence that he legitimately believes will be accepted by the court, as long as that
attempt does not prejudice the defendant.” People v Noble, 238 Mich. App. 647, 660-661; 608
NW2d 123 (1999). Thus, a prosecutor does not act in bad faith if evidence is arguably
admissible. Dobek, 274 Mich. App. at 70.
In this case, the prosecutor’s theory at trial was that Monzo purchased the firearm for
defendant. The store clerk’s testimony indicated that another man was with Monzo when she
attempted to purchase the firearm. Although the clerk could not identify defendant as that man,
Monzo later testified that it was defendant who was with her at the store and, more significantly,
testified that she purchased the gun for defendant. In light of this record, the prosecutor had a
good-faith basis for attempting to elicit the store clerk’s testimony that, based on the clerk’s
personal observations of Monzo and the man in the store, Monzo appeared to be purchasing the
firearm for her male companion, defendant. See MRE 701. Although the trial court ultimately
excluded the testimony as speculative, the mere fact that the evidence was excluded does not
render the prosecutor’s conduct improper. Because the prosecutor had a good-faith basis for
attempting to introduce the evidence, there was no misconduct. Furthermore, because the trial
court ultimately excluded the testimony, struck it from the record, and instructed the jury not to
consider it, defendant was not prejudiced. Jurors are presumed to follow their instructions, and
instructions presumably cure most errors. People v Abraham, 256 Mich. App. 265, 279; 662
NW2d 836 (2003). The trial court’s exclusion of the evidence and order striking it from the
record and directing the jury not to consider it was sufficient to cure any prejudice, and protected
defendant’s right to a fair trial.
V. POLICE REPORT OF A WEAPON IN THE VEHICLE
Defendant next argues that the trial court erred in allowing Officer Jeremy Young to
testify that he notified other officers who attempted to stop defendant’s vehicle that he had
reason to believe that there was a gun inside the vehicle. Defendant argues that this testimony
violated a pretrial ruling, was irrelevant, involved inadmissible hearsay, and was unduly
prejudicial. We reject each of these arguments.
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Before trial, defendant brought a motion in limine to exclude evidence that defendant was
under investigation for an unrelated offense involving an assault with a firearm. Pursuant to the
parties’ stipulation, the trial court entered a pretrial order that provided:
IT IS FURTHER ORDERED THAT testimony concerning Defendant
threatening police officers, possibly possessing a firearm and/or being
investigated for another criminal complaint will not be admitted by Plaintiff[] in
its case in chief unless and until Defendant opens the door[.]
At trial, Monzo testified that there was a gun in the vehicle and that she purchased it for
defendant. Additionally, defense counsel questioned the manner in which defendant was
arrested. Police testimony indicated that defendant would not show his hands to officers, and
that hand strikes occurred to force defendant to open his hands for officer safety. Defense
counsel disputed that account of arrest by asking questions about the arresting officers’ size
which suggested that the police may have somehow overreacted or employed excessive force.
After this testimony, Officer Young testified that before the police pursuit began, he advised the
other officers that he had reason to believe there was a gun in the vehicle. He explained that he
conveyed that information for purposes of officer safety.
Initially, we reject defendant’s argument that Officer Young’s testimony was not relevant
or should have been excluded because it was unduly prejudicial. Generally, all relevant evidence
is admissible. Yost, 278 Mich. App. at 355. Irrelevant evidence is inadmissible. MRE 402.
Relevant evidence is defined as “evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” MRE 401. Evidence is admissible if it sheds light on any
material point in issue. People v Murphy (On Remand), 282 Mich. App. 571, 580; 766 NW2d 303
(2009). Even if relevant, evidence may be excluded if the probative value is substantially
outweighed by the “danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” MRE 403. See also Benton, 294 Mich. App. at 200.
Officer Young’s testimony was relevant to explain the manner in which the police pursuit
and arrest of defendant were handled. Defense counsel had questioned the manner in which
defendant was arrested and suggested that the police overreacted. Police testimony indicated that
defendant would not show his hands, and that hand strikes occurred to force defendant to open
his hands for officer safety. The testimony that the officers had been advised that there was
reason to believe that a gun was inside the vehicle was relevant to show that the officers had a
legitimate concern for officer safety. Further, the probative value of the testimony was not
substantially outweighed by the danger of unfair prejudice, particularly considering that Monzo
had already testified that a gun was inside the vehicle.
In addition, by questioning whether the officers acted appropriately when arresting
defendant, defendant opened the door to evidence explaining the officers’ conduct, including
evidence that the officers had been warned of the possible presence of a gun. Therefore, the
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testimony did not violate the trial court’s pretrial order, and the admission of this testimony did
not deprive defendant of due process or a fair trial.3 Lastly, the testimony was not hearsay
because it was not introduced for its truth (i.e., to prove that defendant possessed a gun), but
rather to show its effect on the other officers’ conduct. See People v Chambers, 277 Mich. App.
1, 11; 742 NW2d 610 (2007) (“[A] statement offered to show why police officers acted as they
did is not hearsay.”). For these reasons, the trial court did not abuse its discretion in allowing
Officer Young’s testimony.
VI. EVIDENCE OF MONZO’S METHAMPHETAMINE MANUFACTURE
Defendant next argues that the trial court abused its discretion and demonstrated its
partiality by allowing the prosecutor to introduce testimony of defendant’s involvement in
methamphetamine production, but not allowing him to present similar testimony from
Wlodarczyk to demonstrate that Monzo was also involved in manufacturing methamphetamine.
In particular, the trial court permitted Wlodarczyk to testify that she witnessed defendant’s
manufacture of methamphetamine, but sustained the prosecutor’s relevancy objection when
defense counsel attempted to question her about Monzo’s involvement in the manufacture of
methamphetamine.
When the trial court’s ruling excludes evidence, it is incumbent on the party seeking
admission to make an offer of proof, and error may not be predicated on the exclusion of
evidence unless a substantial right of the party is affected. MRE 103(a)(2); People v
Witherspoon, 257 Mich. App. 329, 331; 670 NW2d 434 (2003). The trial court excluded
Wlodarczyk’s testimony on relevancy grounds. Defendant failed to articulate the relevance of
Wlodarczyk’s testimony in the trial court and, on appeal, he similarly fails to explain the
relevance of this testimony. Instead, defendant suggests on appeal that the trial court’s exclusion
of this testimony was simply unfair, and reflected the trial court’s partiality, where the
prosecution was allowed to present evidence of defendant’s involvement in the manufacture of
methamphetamine. We disagree. The trial court permitted questions regarding defendant’s
production of methamphetamine because evidence of defendant’s involvement in manufacturing
methamphetamine was relevant to show defendant’s knowing possession of equipment or
chemicals used for manufacturing methamphetamine, a necessary element of the controlled
substance charges. See generally MRE 404(b). That purpose was not applicable to Monzo,
because she was not on trial. Because defendant failed to establish a relevant purpose for
Wlodarczyk’s testimony, the trial court did not abuse its discretion by excluding it. The trial
3
Insofar as defendant’s argument regarding Officer Young’s testimony involves a claim that the
prosecutor committed misconduct by unfairly attempting to taint the evidence, we can discern no
misconduct in the prosecutor’s good faith attempt to admit relevant evidence. See Noble, 238
Mich. App. at 660-661. Given that defendant opened the door to the appropriateness of the police
offices’ conduct, the prosecutor did not violate the trial court’s order by questioning Officer
Young regarding the presence of a gun and defendant cannot now complain that the prosecutor
pursued this line of questioning. See People v Horn, 279 Mich. App. 31, 35; 755 NW2d 212
(2008).
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court’s principled evidentiary ruling in this regard, grounded in the evidence and the law, does
not demonstrate partiality or bias by the trial court. See People v Jackson, 292 Mich. App. 583,
598-599; 808 NW2d 541 (2011).
Moreover, any error in excluding the testimony was clearly harmless because Monzo
testified at trial and admitted that she participated in the manufacture of methamphetamine by
crushing the pseudoephedrine pills, handling the hoses, and cleaning the hoses and utensils. The
prosecutor also elicited testimony that Monzo was familiar with the process because she testified
regarding the ingredients that created a horrible odor and how liquid was poured out of the two-
liter bottle into another vessel. In light of Monzo’s testimony and other evidence showing her
participation in manufacturing methamphetamine, it is not more probable than not that the
exclusion of Wlodarczyk’s cumulative testimony affected the outcome of the trial. See Lukity,
460 Mich. at 496.
VII. SUFFICIENCY OF THE EVIDENCE
Defendant next argues that the evidence was insufficient to support his convictions. In
particular, regarding his firearm convictions, defendant contends that, although a gun was thrown
from the vehicle, the police officers could not specifically tie the gun to defendant. Similarly,
regarding defendant’s drug related convictions, defendant maintains that, while materials for the
production of methamphetamine were discovered in the vehicle, there is no evidence linking
defendant to the items in question. Related to his conviction for resisting and obstructing a
police officer, defendant argues he in no way resisted the police, but rather he merely ran from
the vehicle and fell in the snow. More generally, defendant challenges Monzo’s credibility in
light of her inconsistent statements and the plea bargain she received, and he debates the
significance of the evidence presented at trial, including, for example, his letters to Monzo and
the testimony of Wlodarczyk and Bartley.
A challenge to the sufficiency of the evidence is reviewed de novo. People v Malone,
287 Mich. App. 648, 654; 792 NW2d 7 (2010). In examining a sufficiency challenge, the
evidence is reviewed in a light most favorable to the prosecution to determine whether a rational
trier of fact could have found that the essential elements of the crime were proved beyond a
reasonable doubt. People v Dunigan, 299 Mich. App. 579, 582; 831 NW2d 243 (2013).
Circumstantial evidence and reasonable inferences arising from that evidence may constitute
proof of the elements of the crime. People v Bennett, 290 Mich. App. 465, 472; 802 NW2d 627
(2010). It is for the trier of fact to determine what inferences may be fairly drawn from the
evidence and the weight to be accorded those inferences. Malone, 287 Mich. App. at 654.
Further, this Court will not interfere with the jury’s assessment of the weight of evidence or the
credibility of witnesses. Dunigan, 299 Mich. App. at 582.
Defendant argues that, regarding his drug related convictions, there was insufficient
evidence to establish his possession of the methamphetamine and methamphetamine chemicals
and equipment because there was no credible testimony or physical evidence, such as his
fingerprints, linking those items to him. Possession of methamphetamine requires a showing of
dominion or right to exercise control over the drug with knowledge of its presence and character.
People v Meshell, 265 Mich. App. 616, 621; 696 NW2d 754 (2005). For purposes of operating or
maintaining a methamphetamine laboratory, a person shall not own, possess, or use a vehicle,
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building, structure or area for use as a location to manufacture methamphetamine or,
alternatively, a person shall not own or possess any chemical or any laboratory equipment that he
or she knows or has reason to know is to be used for purposes of manufacturing
methamphetamine. See id. at 623-624; MCL 333.7401c(1)(a), (b). Regarding the element of
possession, in People v Wolfe, 440 Mich. 508, 519-520; 489 NW2d 748 (1992), mod 441 Mich.
1201 (1992), the Court explained:
A person need not have actual physical possession of a controlled
substance to be guilty of possessing it. Possession may be either actual or
constructive. Likewise, possession may be found even when the defendant is not
the owner of the recovered narcotics. Moreover, possession may be joint, with
more than one person actually or constructively possessing a controlled substance.
[Internal citations omitted.]
Actual possession occurs when an individual exercises direct physical control over a thing at a
given time. People v Flick, 487 Mich. 1, 15; 790 NW2d 295 (2010). Even if an individual does
not have actual possession, a person nonetheless constructively possesses a thing if he knowingly
has the power and intention at a given time to exercise dominion or control over it through direct
acts or through the acts of another. Id. at 14-15. “Constructive possession of an illegal substance
requires proof that the defendant knew of its character.” People v McGhee, 268 Mich. App. 600,
610; 709 NW2d 595 (2005). In contrast, “a person’s presence, by itself, at a location where
drugs are found is insufficient to prove constructive possession.” People v Bylsma, 493 Mich. 17,
31-32; 825 NW2d 543 (2012) (quotation marks and footnote omitted). “Rather, the essential
inquiry into possession is whether there is a sufficient nexus between the defendant and the
contraband including whether the defendant exercised a dominion and control over the
substance.” Id. (quotation marks and footnote omitted). The possession determination must be
examined in light of the totality of the circumstances. Wolfe, 440 Mich. at 521.
In the present case, Monzo, Bartley, and Wlodarczyk all testified regarding their use of
methamphetamine made by defendant and their roles in purchasing pseudoephedrine for
defendant to make the methamphetamine. For example, according to Monzo and Bartley, on the
day of the car chase, defendant cooked methamphetamine in Bartley’s bedroom. They then used
methamphetamine in the car during the police pursuit. Although defendant argues that these
witnesses were not credible, the credibility of their testimony was for the jury to resolve, and this
Court will not resolve it anew. Dunigan, 299 Mich. App. at 582. Moreover, in addition to their
testimony, defendant was observed carrying two bags from Bartley’s home to the Sunfire, and
those bags contained items used to manufacture methamphetamine. One bag also contained a
letter and prescription bottle bearing defendant’s name, thereby further linking defendant to the
contents of that bag. Defendant also fled from the police, from which the jury could infer a
consciousness of guilt. People v Unger, 278 Mich. App. 210, 226; 749 NW2d 272 (2008). In
addition, the prosecution introduced several letters written by defendant to Monzo, which
contained statements demonstrating defendant’s role in the crimes, including his possession and
manufacture of methamphetamine and the laboratory equipment. Accordingly, the evidence was
sufficient to support defendant’s convictions for the methamphetamine offenses.
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Both felon-in-possession of a firearm and felony-firearm require proof that the defendant
possessed a firearm.4 People v Peals, 476 Mich. 636, 640; 720 NW2d 196 (2006). The crime of
carrying a concealed weapon requires actual or constructive possession coupled with the
concealment requirement. People v Czerwinski, 99 Mich. App. 304, 306-307; 298 NW2d 16
(1980). Relevant to these firearm related offenses, Monzo testified that she purchased a firearm
for defendant, that defendant would carry the gun in his waistband or that, when they were
together, Monzo would carry it for him in her purse, and that defendant threw the firearm out the
window during the police chase. A police officer testified that he saw objects thrown from the
passenger side window during the police pursuit, and a firearm was later recovered along the
route of the police chase. The serial number on that gun matched the serial number on a gun box
recovered by police. Contrary to defendant’s appellate arguments, this evidence was sufficient
to enable the jury to find beyond a reasonable doubt that defendant possessed and carried a
firearm after Monzo purchased it, and that he possessed it during the commission of the
methamphetamine offenses. Again, the credibility of Monzo’s testimony was for the jury to
resolve.
To support a conviction for resisting or obstructing a police officer pursuant to MCL
750.81d(1), the prosecutor must demonstrate that (1) the defendant assaulted, battered, wounded,
resisted, obstructed, opposed, or endangered a police officer, (2) the defendant knew or had
reason to know that the person that the defendant assaulted, battered, wounded, resisted,
obstructed, opposed, or endangered was a police officer performing his or her duties, and (3) that
the officer’s actions were lawful. People v Quinn, 305 Mich. App. 484, 491; 853 NW2d 383
(2014); People v Vandenberg, 307 Mich. App. 57, 68; 859 NW2d 229 (2014). Physical
obstruction of an officer is unnecessary; hindering an officer in the process of a criminal
investigation is sufficient. People Pohl, 207 Mich. App. 332, 333; 523 NW2d 634 (1994). For
example, prearrest flight that actively interferes with an investigation is sufficient. Id. Further,
physical contact or violence with the police is unnecessary, and the failure to abide by police
warnings or orders is just as effective in resisting officers as if physical force was used. People v
King, 236 Mich. 405, 411-412; 210 N.W. 235 (1926).
Monzo testified that she advised defendant that the vehicle was being pulled over, but he
persuaded her to flee from the police, resulting in a high-speed, 34-mile chase. When the vehicle
eventually stopped, defendant then fled from the police on foot. Although Deputy Daman Duva
could not specifically recall if he identified himself as a police officer when defendant fled from
the Sunfire, he was dressed in a police uniform and he repeatedly ordered defendant to “stop.”
4
For purposes of felony-firearm, the prosecution also must show that the firearm was carried or
possessed during the commission or attempted commission of another felony. People v Duncan,
462 Mich. 47, 49 n 3; 610 NW2d 551 (2000). To prove felon in possession, the prosecutor was
required to show that defendant possessed or used a firearm, that defendant was a convicted
felon, and his right to possess a firearm had not yet been restored. MCL 750.224f. On appeal,
defendant argues only that he did not possess the gun recovered in this case. In any event, it is
clear that the possession of the gun in this case occurred during the commission of another
felony, and that, given defendant’s stipulation at trial, he was ineligible to possess a firearm.
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Further, the flight on foot was preceded by a lengthy police pursuit during which officers had
activated their lights and sirens. Moreover, Officer Ed Gerrow testified that he identified himself
as a police officer and ordered defendant to stop, but defendant did not stop. This evidence was
sufficient to establish that defendant resisted or obstructed a police officer in the lawful
performance of his duty.5
VIII. MOTION TO QUASH
Defendant also argues that no probable cause existed to support his bind over and that the
circuit court erred by denying his motion to quash. Given our conclusion that sufficient evidence
was presented to support defendant’s convictions, we need not consider whether there was any
error in the district court’s bind-over decision. People v Bosca, __ Mich App __, __; __ NW2d
__ (2015), slip op at 21. That is, even if a magistrate’s decision to bind over is erroneous, the
error is harmless when sufficient evidence is presented to convict at trial. Bennett, 290 Mich
App at 481. As discussed, having reviewed the record, we conclude that the prosecution
presented sufficient evidence at trial to convict defendant of the charged offenses. Accordingly,
any potential error with the bind over was harmless and this issue need not be considered further.
VIII. SENTENCING
Finally, defendant argues that resentencing is required because the trial court erred in
scoring prior record variables (PRV) 2 and 4, and offense variables (OV) 14 and 19.6 Defendant
preserved these scoring challenges by raising them in a motion for resentencing. MCL
769.34(10); People v Needham, 299 Mich. App. 251, 253; 829 NW2d 329 (2013). On appeal, the
trial court’s factual findings are reviewed for clear error and must be supported by a
preponderance of the evidence. People v Hardy, 494 Mich. 430, 438; 835 NW2d 340 (2013).
The trial court’s application of the facts to the statutory scoring conditions presents a question of
law, which we review de novo. Id. In this case, upon review, we conclude that the trial court
properly scored the variables in question and thus defendant is not entitled to resentencing.
PRV 2 addresses prior low severity felony convictions. The court is directed to score 30
points if the offender has four or more prior low severity felony convictions, whereas 20 points
5
Having determined that the evidence was sufficient to support defendants’ convictions, we also
reject defendant’s cursory assertion that the trial court erred in denying his motion for a directed
verdict. See People v Toodle, 155 Mich. App. 539, 551; 400 NW2d 670 (1986).
6
Aside from his specific challenges to the scoring of these variables, defendant requests remand
for correction of the PSIR and resentencing because he maintains that many of his misdemeanor
convictions may have been obtained without counsel. Contrary to defendant’s arguments, we
see no inaccuracy in the PSIR that needs correcting. Defendant’s convictions listed in the PSIR
either affirmatively report the presence of counsel, or they list the presence of counsel as
“unknown.” We fail to see how this can be construed as inaccurate. Further, defendant
concedes on appeal that these offenses did not affect the sentencing guidelines and,
consequently, resentencing is not required on this basis.
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are to be scored if the offender has three prior low severity felony convictions. MCL
777.52(1)(a) and (b). For purposes of PRV, a “prior low severity felony conviction” refers to a
conviction for any of the following, provided that the conviction was entered before the
sentencing offense was committed:
(a) A crime listed in offense class E, F, G, or H.
(b) A felony under a law of the United States or another state that corresponds to a
crime listed in offense class E, F, G, or H.
(c) A felony that is not listed in offense class M2, A, B, C, D, E, F, G, or H and
that is punishable by a maximum term of imprisonment of less than 10 years.
(d) A felony under a law of the United States or another state that does not
correspond to a crime listed in offense class M2, A, B, C, D, E, F, G, or H and
that is punishable by a maximum term of imprisonment of less than 10 years.
[MCL 777.52(2).]
Defendant argues that his prior convictions for resisting or obstructing a police officer, one
conviction dating from 1997 and several from 2000, should not have been considered in the
scoring of PRV 2 because the crimes were classified as misdemeanors at the time they were
committed. See MCL 750.479, as enacted by 1931 PA 328. Defendant asserts that if these
convictions are not scored, he is left with only three prior low severity felony convictions,
thereby warranting a score of only 20 points, rather than 30 points, for PRV 2. In making his
argument, defendant concedes, however, that, although these crimes were classified as a
“misdemeanor” in the Penal Code before 2002, they were nonetheless punishable by two years’
imprisonment. See MCL 750.479, as enacted by 1931 PA 328. For purposes of the Code of
Criminal Procedure, which includes the sentencing guidelines, the labels of “felony” or
“misdemeanor” in the Penal Code do not necessarily govern. See People v Smith, 423 Mich. 427,
439, 443-445; 378 NW2d 384 (1985). Rather, the Code of Criminal Procedure defines a
“felony” as “a violation of a penal law of this state for which the offender, upon conviction, may
be punished by death or by imprisonment for more than 1 year or an offense expressly
designated by law to be a felony.” MCL 761.1(g) (emphasis added). Given this definition of
“felony,” it follows that a two-year offense labeled as a “misdemeanor” under the Penal Code
nonetheless falls within the definition of “felony” for purposes of the Code of Criminal
Procedure. See Smith, 423 Mich. at 439, 443-445. Consequently, for purposes of PRV 2,
defendant’s convictions for resisting and obstructing a police officer were felonies punishable by
a maximum of less than 10 years.7 See MCL 777.52(2)(c). As such, the trial court properly
counted these offenses as prior low severity felony convictions and, because defendant had more
7
Alternatively, with regards to defendant’s convictions for resisting and obstructing in 2000,
with the enactment of 1998 PA 317, the Legislature specifically designated resisting and
obstructing a peace officer in violation of MCL 750.479 as a class G offense, meaning
defendant’s convictions in 2000 would constitute crimes listed in offense class G. See MCL
777.52(2)(a). In either case, these offenses were properly scored as prior low severity felonies.
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than four such felonies, the trial court properly scored 30 points under PRV 2. MCL
777.52(1)(a).
PRV 4 addresses prior low severity juvenile adjudications, and provides that five points
shall be scored for two prior low severity juvenile adjudications. MCL 777.54(1)(d).
Defendant’s presentence report lists two juvenile adjudications. Defendant does not dispute the
adjudications, but argues that they should not have been considered because the presentence
report indicates that it is unknown whether he was represented by counsel. As defendant
observes, convictions and juvenile adjudications obtained in violation of the right to counsel may
not be used to enhance a criminal sentence. People v Alexander (After Remand), 207 Mich. App.
227, 229-230; 523 NW2d 653 (1994). See also People v Carpentier, 446 Mich. 19; 521 NW2d
195 (1994). Once a defendant presents prima facie proof that a prior conviction was obtained
without the benefit of counsel, the burden shifts to the prosecution to establish the validity of the
prior conviction, e.g., affirmative record evidence of a waiver of counsel. Carpentier, 446 Mich.
at 31; People v Moore, 391 Mich. 426, 441; 216 NW2d 770 (1974).
In this case, in response to defendant’s motion for resentencing, the prosecutor submitted
orders of disposition from defendant’s juvenile cases that indicate that defendant appeared in
court with his parents and waived an attorney. We agree with the trial court that this evidence
established the waiver of counsel and the validity of defendant’s juvenile adjudications. Because
the prosecutor presented affirmative record evidence that defendant waived counsel, the trial
court did not err in upholding the five-point score for PRV 4.8
Defendant next challenges his 10-point score for OV 14, which addresses the offender’s
role in the crime. The court is directed to assess 10 points if the offender was a leader in a
multiple offender situation. MCL 777.44(1)(a). The court must examine the entire criminal
transaction to determine if the defendant was a leader. MCL 777.44(2)(a). In this case, Bartley
and Monzo both identified defendant as the primary manufacturer of the methamphetamine.
According to Monzo, she purchased the gun at defendant’s behest, and she intended to stop when
the police attempted to pull over their vehicle, but defendant commanded her not to stop and
thereafter directed her driving. Given the testimony presented, the trial court did not clearly err
in finding that a preponderance of the evidence established defendant’s role as the leader. Thus,
the trial court properly scored 10 points for OV 14.
8
Related to PRV 4, defendant also argues that his juvenile conviction for joyriding, i.e., unlawful
use of an automobile, should not have been counted as a low severity juvenile adjudication
because the offense was a misdemeanor. Defendant’s PSIR states, however, that the final charge
was a class E adjudication for unlawful use of an automobile, and a class E crime constitutes a
low severity adjudication for purposes of PRV 4. See MCL 777.54(2)(a). In any event, as
defendant acknowledges, joyriding is punishable by up to two years imprisonment, MCL
750.414, and as such it constitutes a “felony” for purposes of the Code of Criminal Procedure,
and was thus properly scored according to MCL 777.54(2)(c). See MCL 761.1(g); Smith, 423
Mich. at 439, 443-445.
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Lastly, OV 19 addresses interference with the administration of justice, and 10 points are
to be scored if the offender “interfered with or attempted to interfere with the administration of
justice.” MCL 777.49(c). “The phrase ‘interfered with or attempted to interfere with the
administration of justice’ is broad,” and it includes acts constituting obstruction of justice
although it is not limited to those acts. People v Steele, 283 Mich. App. 472, 492; 769 NW2d 256
(2009). Fleeing from the police contrary to an order to stop can constitute interference with the
administration of justice and is sufficient to support a 10-point score for OV 19. See People v
Hershey, 303 Mich. App. 330, 344; 844 NW2d 127 (2013); People v Ratcliff, 299 Mich. App. 625,
633; 831 NW2d 474 (2013), vacated on other grounds 495 Mich. 876 (2013). Because the
evidence in this case showed that defendant directed Monzo to keep driving, despite the police
sirens and lights, and that he then attempted to flee from the police after a 34-mile police pursuit
while ignoring police commands to stop, the trial court appropriately scored 10 points for OV 19.
Cf. Ratcliff, 299 Mich. App. at 633.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
/s/ Pat M. Donofrio
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