People of Michigan v. Donald James Swank ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 17, 2019
Plaintiff-Appellee,
v No. 342905
Berrien Circuit Court
DONALD JAMES SWANK, LC No. 2017-015660-FH
Defendant-Appellant.
Before: MARKEY, P.J., and BORRELLO and BOONSTRA, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions for possessing a vehicle that he
knew or had reason to know was to be used to manufacture methamphetamine (obtaining or
maintaining a methamphetamine laboratory), MCL 333.7401c(2)(f); manufacturing
methamphetamine, MCL 333.7401(2)(b)(i); possession of methamphetamine, MCL
333.7403(2)(b)(i); and operation of a motor vehicle while under the influence of
methamphetamine, MCL 257.625. The trial court sentenced defendant as a fourth-offense
habitual offender, MCL 769.12, to 12 to 30 years’ imprisonment for the obtaining or maintaining
a methamphetamine laboratory conviction; 12 to 30 years’ imprisonment for the manufacturing
methamphetamine conviction; 1 to 20 years’ imprisonment for the possession of
methamphetamine conviction; and 93 days in jail for the operation of a vehicle while under the
influence of methamphetamine conviction. For the reasons set forth in this opinion, we affirm
the convictions and sentences of defendant.
I. BACKGROUND
This case arises out of a traffic stop that occurred on May 24, 2017 at 1:40 a.m. in Niles,
Michigan. At trial, testimony revealed that a Niles police officer noticed a suspicious white van
with Indiana plates driving on a short dirt road near a car dealership. The officer followed the
van until it pulled into a Walgreens parking lot. The officer observed that the driver of the van
had difficulty parking the vehicle even though the lot was mainly empty. The officer next
observed a female exit the van, proceed into Walgreens, and then return to the van. The officer
followed the van as it left the parking lot because his experience had taught him that individuals
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would come from Indiana to the 24-hour Niles Walgreens to buy Sudafed to make
methamphetamine. The van then embarked on what can best be described as a circuitous route
as the officer continued to follow. When the van entered onto a residential street, the officer
noted that it was traveling 32 miles per hour in a 25 miles per hour zone. The van next abruptly
pulled into a driveway of a home that no one in the van had any connection to, and the officer
pulled his patrol car behind the van and activated his patrol car’s lights.
The officer made contact with defendant, the driver and registrant of the van. When
asked why he was driving on a dirt road behind a car dealership, defendant offered several
explanations, none of which made any sense to the officer. Defendant went on to explain to the
officer that he drove his female passenger to Walgreens so that she could pick up a prescription.
At the time of the initial stop, the officer noted that defendant’s eyes were dilated, he was
increasingly alert, “fidgety,” and was becoming irritable. The officer, being Advanced Roadside
Impairment Detection (ARIDE) certified, recognized those symptoms as signs of
methamphetamine use. Additionally, the officer testified that he could smell alcohol on
defendant’s breath. During the initial stop, the officer asked defendant if had had been drinking
to which defendant responded that earlier in the evening he drank some Fireball whiskey.
The officer then ran a L.E.I.N. and discovered that there was an active warrant for
defendant in Berrien County for retail fraud, prompting the arrest of defendant. A sealed box of
Sudafed was discovered near the front passenger seat of the van. Defendant’s female passenger,
Dionne Splunge, admitted that she purchased the Sudafed at Walgreens for defendant. Staff at
the Niles Walgreens store confirmed that a woman had just purchased Sudafed.
Defendant’s brother, Erik Swank, was sitting on a toolbox in between the van’s two front
seats. After being asked to exit the van, and as he was walking toward the officer’s patrol
vehicle, a pink or orange “pipe” fell to the ground. The officer also discovered a bag of
methamphetamine in Erik’s pocket and an additional container of methamphetamine tucked into
the leg of his underwear.
Next, the officer began a search of the van. He discovered a metal pressure cooker
behind the seats in the van, opened it and recognized that it was a one-pot laboratory for making
methamphetamine. At that juncture the officer stopped the search of defendant’s van because he
was not certified to handle a methamphetamine laboratory.
Detective Jason Sweet from the Michigan State Police Southwest Enforcement Team
(SWET) was called to properly investigate and dispose of the items in defendant’s van. Sweet
discovered items used in the manufacture of methamphetamine in the pressure cooker including
an additional box of Sudafed in which all the tablets had been removed from the bubble
container. He handed a piece of tubing from the pressure cooker to the arresting officer which
field-tested positive for methamphetamine. According to the arresting officer, defendant
initially denied knowing anything about the pressure cooker; however, he eventually
acknowledged that Erik brought it into the van. Defendant eventually admitted that
methamphetamine would be in his system, but he did not feel that he was under the influence of
methamphetamine. Subsequent blood-test results showed that defendant was positive for
methamphetamine and benzoylecgonine, a metabolite of cocaine.
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At trial, Erik testified on defendant’s behalf. He explained that he was charged with
manufacturing methamphetamine, operating a methamphetamine laboratory, possession of
methamphetamine, and possession of other drugs (pills). Erik pleaded guilty to manufacturing
methamphetamine and the other charges were dismissed. He testified that he had brought the
pressure cooker into defendant’s van, but defendant did not know anything about it or its
contents. According to Erik, he did not make any methamphetamine in the van, nor did he plan
to make any methamphetamine in the van. Rather Erik was along for the ride because he was
going to be dropped off at a friend’s house. Erik explained that defendant never made
methamphetamine or helped Erik make methamphetamine. Further, Erik did not need the
Sudafed purchased by Splunge because he already had everything that he needed. Erik admitted
that he and defendant “snorted” methamphetamine in the van however; Erik did not think that
defendant knew it was methamphetamine because defendant usually used cocaine.
Following a two-day trial, the jury convicted defendant as stated supra. Following his
sentencing, this appeal ensued.
II. ANALYSIS
On appeal, defendant first argues that the trial court erred in denying his motion to quash
the bindover. “This Court reviews a trial court’s decision on a motion to quash the information
for an abuse of discretion. To the extent that a lower court’s decision on a motion to quash the
information is based on an interpretation of the law, appellate review of the interpretation is de
novo.” People v Miller, 288 Mich. App. 207, 209; 795 NW2d 156 (2010) (citation omitted). An
abuse of discretion occurs “when the court chooses an outcome that falls outside the range of
principled outcomes.” People v Douglas, 496 Mich. 557, 565; 852 NW2d 587 (2014) (quotation
marks and citation omitted).
The primary function of the preliminary examination is to determine
whether a crime has been committed and, if so, whether there is probable cause to
believe that the defendant committed it. Probable cause that the defendant has
committed a crime is established by evidence sufficient to cause a person of
ordinary prudence and caution to conscientiously entertain a reasonable belief of
the defendant’s guilt. To establish that a crime has been committed, a prosecutor
need not prove each element beyond a reasonable doubt, but must present some
evidence of each element. Circumstantial evidence and reasonable inferences
from the evidence can be sufficient. If the evidence conflicts or raises a
reasonable doubt, the defendant should be bound over for trial, where the
questions can be resolved by the trier of fact. [People v Henderson, 282 Mich
App 307, 312; 765 NW2d 619 (2009) (citations omitted).]
“The probable-cause standard of proof is, of course, less rigorous than the guilt-beyond-a-
reasonable-doubt standard of proof.” People v Yost, 468 Mich. 122, 126; 659 NW2d 604 (2003)
(quotation marks and citation omitted).
Defendant was convicted of all four charges as a result of a jury trial and he does not
argue on appeal that there was insufficient evidence to support his convictions. Defendant also
did not move for a directed verdict at trial. As a result, this Court will not consider whether the
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evidence presented at the preliminary examination was sufficient to warrant a bindover. See
People v Hall, 435 Mich. 599, 601-603; 460 NW2d 520 (1990) (an evidentiary deficiency at the
preliminary examination is not a ground for reversing a subsequent conviction when the
defendant was not prejudiced by the error). Here, defendant has not demonstrated the necessary
prejudice; accordingly, defendant is not entitled to relief on this issue.
Next, defendant argues that the trial court erred in denying his motion to suppress the
items found in the van and a statement he made to the police. This Court reviews “[a] trial
court’s findings of fact on a motion to suppress . . . for clear error.” People v Hrlic, 277 Mich
App 260, 262-263; 744 NW2d 221 (2007). “Clear error exists if the reviewing court is left with
a definite and firm conviction that a mistake has been made.” People v Johnson, 466 Mich. 491,
497-498; 647 NW2d 480 (2002). However, “the application of constitutional standards
regarding searches and seizures to essentially uncontested facts is entitled to less deference,” so
this Court reviews “de novo the trial court’s ultimate ruling on the motion to suppress.” People v
Williams, 472 Mich. 308, 313; 696 NW2d 636 (2005).
The Fourth Amendment of the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to
be seized. [US Const, Am IV.]
Typically, evidence that is unconstitutionally seized must be excluded from trial. People v
Dillon, 296 Mich. App. 506, 508; 822 NW2d 611 (2012). “[I]n order to show that a search was
legal, the police must show either that they had a warrant, or that their conduct fell under one of
the narrow, specific exceptions to the warrant requirement.” People v Davis, 442 Mich. 1, 10;
497 NW2d 910 (1993). “Examples of exceptions to the warrant requirement are: (1) searches
incident to arrest, (2) automobile searches and seizures, (3) plain view seizure, (4) consent, (5)
stop and frisk, and (6) exigent circumstances.” Id.
In regard to defendant’s argument relating to the suppression of the items discovered in
the van, it is undisputed that the officer did not have a warrant to search defendant’s van.
Therefore, for the search to be constitutionally permissible, it must fall under one of the
exceptions to the warrant requirement. Davis, 442 Mich. at 10. Examination of the record
presented in this case leads us to conclude that the automobile exception to the warrant
requirement applies to the actions undertaken by the police.
It is well-settled that the police may lawfully search an automobile without a warrant
where they have probable cause to believe that the vehicle contains contraband. People v Garvin,
235 Mich. App. 90, 102; 597 NW2d 194 (1999), citing People v Carter, 194 Mich. App. 58, 60-61;
486 NW2d 93 (1992). As this Court has stated, where the police have probable cause to search
an automobile, they may do so without a search warrant even if they would have had time and
opportunity to obtain a search warrant. “The basis for this rule is the lessened expectation of
privacy in an automobile.” People v Clark, 220 Mich. App. 240, 242; 559 NW2d 78 (1996).
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The issue then becomes whether police had probable cause to search defendant’s van. A
finding of probable cause requires a “substantial basis for . . . [concluding] that a search would
uncover evidence of wrongdoing . . . .” Illinois v Gates, 462 U.S. 213, 236; 103 S. Ct. 2317; 76 L
Ed 2d 527 (1983) (citation omitted); Garvin, 235 Mich. App. at 102. There must be “a fair
probability that contraband or evidence of a crime will be found in a particular place.” Id at 238;
People v Mayes (After Remand), 202 Mich. App. 181, 185-186; 508 NW2d 161 (1993). The
determination whether probable cause exists to support a search, including a search of an
automobile without a warrant, should be made in a commonsense manner in light of the totality
of the circumstances. Id.
Here, testimony revealed that the arresting officer observed defendant driving erratically
at 1:40 a.m. He also observed that defendant’s van had Indiana plates and one of his passengers
went to Walgreens. Based on the arresting officer’s experience and training, the officer knew
that Walgreens had been used by Indiana residents to purchase Sudafed for the purpose of
making methamphetamine. Once stopped, defendant’s explanations as to why he was driving on
the dirt road near the dealership did not make any sense to the officer. The officer smelled
alcohol on defendant, and defendant admitted to the consumption of alcohol. The officer
testified that defendant also exhibited signs of being under the influence of methamphetamine.
The officer observed a box of Sudafed near the female passenger’s feet when she exited the van.
She reported that she purchased the Sudafed for defendant. She also said that defendant and Erik
had been smoking methamphetamine while defendant was driving. Moreover, when Erik exited
the van, he dropped a pipe that the officer believed was used to inhale methamphetamine.
Methamphetamine was also discovered on Erik’s person. Finally, defendant had a warrant for
retail fraud. Given all the foregoing factors known to the officer and the time he began his
search of defendant’s van, there was a substantial basis under the totality of the circumstances,
and thus probable cause, to conclude that the officer would discover illicit drugs in defendant’s
van. Garvin, 235 Mich. App. at 104. Accordingly, we hold that police had probable cause to
search defendant’s van. As a consequence, and contrary to defendant’s assertions on appeal, no
violation of the Fourth Amendment occurred.1
As to defendant’s contention on appeal that his statements should have been suppressed,
it is somewhat difficult for us to ascertain exactly what statements defendant alleges were subject
to suppression. What follows is the entirety of defendant’s argument on this issue:
As seen on the patrol video, Mr. Swank exited his vehicle and was placed in
handcuffs. Defendant was detained for suspicion of operating under the influence.
He was given a preliminary PBT. Following these results, he was placed in the
1
The parties also submit arguments pertaining to the legality of the search pursuant to the search
incident to arrest exception and the inventory search exception. However, a search only needs to
be valid under one of the exceptions to the warrant requirement. See Davis, 442 Mich. at 10.
Therefore, because the search was valid under the automobile exception, this Court need not
address whether the search was valid under any other exception.
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back of a patrol car while handcuffed. Defendant was not free to leave and not
given his Miranda warnings. In Miranda v Arizona, 384 U.S. 436, 444-445 (1966),
the United States Supreme Court held that the prosecution must present evidence
that the defendant voluntarily, knowingly, and intelligently waived his privilege
against self-incrimination and rights to consult with counsel to have counsel
present during a custodial interrogation. Any statements that Mr. Swank made
such as advising the officer that he had something to drink, should have been
suppressed.
Though defendant argues that “[a]ny statements that Mr. Swank made . . . ” are subject to
suppression, defendant only cites to his statement to the arresting officer that he had been
drinking. Hence, we surmise that statement to be the only statement defendant alleges is subject
to suppression as a violation of his rights under Miranda.2
This Court has explained that “Miranda warnings are not required unless the accused is
subject to a custodial interrogation.” People v Steele, 292 Mich. App. 308, 316; 806 NW2d 753
(2011). Further, it is well-settled that “a motorist detained for a routine traffic stop or
investigative stop is ordinarily not in custody within the meaning of Miranda.” Id. at 317.
At trial, the arresting officer testified that defendant made the statement about drinking
whiskey while he was speaking to him through the driver’s side window as he was checking
defendant’s paperwork. Defendant did not object or challenge this testimony. On appeal,
defendant does not argue that the officer did not have reasonable suspicion to effectuate a stop or
that any of the officer’s actions leading up to defendant’s initial detention were constitutionally
infirm. Hence, we must conclude that at the time the officer solicited defendant’s statement that
he had been drinking, defendant was subjected to a permissible investigative stop pursuant to
Terry v Ohio, 392 U.S. 1, 21, 30-31; 88 S. Ct. 1868; 20 L Ed2d 889 (1968).
As previously stated, Miranda warnings are not required unless the accused is subject to
a custodial interrogation. Steele, 292 Mich. App. at 318. Here, defendant was temporarily
detained in order for the officer to make a reasonable inquiry into possible criminal activity. The
officer’s questions were asked immediately after the stop, and were done in an effort to confirm
or dispel the officer’s suspicions as to whether defendant was driving while under the influence
of alcohol. Accordingly, because defendant was questioned while subjected to a lawful Terry
stop, he was not “in custody” as required for a Miranda violation and accordingly is not entitled
to relief. Steele, 292 Mich. App. at 316. See also, Berkemer v McCarty, 468 U.S. 420, 437-440;
104 S. Ct. 3138; 82 L Ed2d 317 (1984); People v Burton, 252 Mich. App. 130, 138-139; 651
NW2d 143 (2002).
Defendant also asserts on appeal that the trial court erred in allowing the pharmacist from
Walgreens to testify because the prosecution did not add her to the witness list until 15 days
before trial. There is no dispute that the prosecution failed to comply with MCL 767.40a(3). The
2
Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966).
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pharmacist’s testimony concerned the female passenger’s purchase of Sudafed from the Niles
Walgreens and the law involving the National Precursor Log Exchange (NPLEx). 3
This Court reviews a trial court’s decision whether to allow the late endorsement of a
witness for an abuse of discretion. People v Callon, 256 Mich. App. 312, 325-326; 662 NW2d
501 (2003). In pertinent part, MCL 767.40a provides:
(3) Not less than 30 days before the trial, the prosecuting attorney shall
send to the defendant or his or her attorney a list of the witnesses the prosecuting
attorney intends to produce at trial.
(4) The prosecuting attorney may add or delete from the list of witnesses
he or she intends to call at trial at any time upon leave of the court and for good
cause shown or by stipulation of the parties.
MCR 6.201(A)(1) states that a party must provide
the names and addresses of all lay and expert witnesses whom the party may call
at trial; in the alternative, a party may provide the name of the witness and make
the witness available to the other party for interview; the witness list may be
amended without leave of the court no later than 28 days before trial.
This Court has held that “[m]ere negligence of the prosecutor is not the type of egregious
case for which the extreme sanction of precluding relevant evidence is reserved.” Callon, 256
Mich. App. at 328. “Moreover, to establish that the trial court abused its discretion, defendant
must demonstrate that the court’s ruling resulted in prejudice.” Id.
The record reveals that the prosecutor assigned to his case dealt with medical issues
before trial, which could constitute good cause pursuant to MCL 767.40a(4). Further, even if
this Court were to presume a lack of good cause, defendant has not demonstrated prejudice
resulting from the trial court’s ruling. See Callon, 256 Mich. App. at 328. The pharmacist did not
provide any novel testimony. She testified that she sold Sudafed to a woman on May 24, 2017,
at 1:30 a.m. She also explained that both defendant and Erik would have been blocked from
purchasing Sudafed. However, this information was already provided by other witnesses. The
arresting officer testified that he observed a woman exit defendant’s van in the Walgreens
parking lot and then reenter the van after leaving Walgreens. He discovered a box of Sudafed in
a Walgreens bag near where this passenger was sitting in the van. Dispatch also confirmed that a
3
The NPLEx is an electronic logging system that tracks sales of over-the-counter medications
containing pseudoephedrine (such as Sudafed), because those medications are used for the
manufacture of methamphetamine. The NPLEx system blocks an individual from purchasing a
product with pseudoephedrine if the individual attempts to purchase more than the 9-gram limit
in a 30-day period. The system showed that both defendant and Erik were blocked from
purchasing Sudafed on the night in question because they had both reached the 9-gram purchase
limit.
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woman had just purchased Sudafed at the Niles Walgreens. Moreover, a detective provided
extensive testimony regarding the NPLEx logs before the pharmacist was called to testify.
Additionally, defendant was aware of the pharmacist and her possible testimony almost
three months before trial. On appeal, defendant does not explain how he was unable to prepare
for her testimony or how receiving notice 30 days before trial would have made a difference in
his preparation. Defendant was also able to cross-examine the witness at trial. Under the
circumstances, the trial court did not abuse its discretion in allowing the witness to testify. See
id. at 326 (concluding “that the trial court did not abuse its discretion by allowing the late
endorsement of a critical prosecution witness where the witness was known to the defense, had
been subjected to cross-examination at the preliminary examination, and where no continuance
was requested and no unfair prejudice resulted to defendant”). Therefore, defendant has not
shown that the trial court abused its discretion in allowing the witness to testify or that he was
deprived of a fair trial. See id. at 328-329.
Next, defendant argues on appeal that the trial court erred in admitting improper character
evidence pursuant to MRE 404(b). Although we agree that the trial court erred in failing to
enforce the notice requirement of that rule, we conclude that the evidence was admissible and did
not affect the outcome of defendant’s trial.
MRE 401 states that “relevant evidence” is “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.” In addition, MRE 402 provides that “[a]ll
relevant evidence is admissible, except as otherwise provided by the Constitution of the United
States, the Constitution of the State of Michigan, these rules, or other rules adopted by the
Supreme Court. Evidence which is not relevant is not admissible.”
At the time of defendant’s trial, MRE 404(b) provided:4
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
4
MRE 404(b) was amended, effective January 1, 2018. The current version of MRE 404(b)(2)
states:
The prosecution in a criminal case shall provide written notice at least 14
days in advance of trial, or orally on the record later if the court excuses pretrial
notice on good cause shown, of the general nature of any such evidence it intends
to introduce at trial and the rationale, whether or not mentioned in subparagraph
(b)(1), for admitting the evidence. If necessary to a determination of the
admissibility of the evidence under this rule, the defendant shall be required to
state the theory or theories of defense, limited only by the defendant’s privilege
against self-incrimination.
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or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
(2) The prosecution in a criminal case shall provide reasonable notice in
advance of trial, or during trial if the court excuses pretrial notice on good cause
shown, of the general nature of any such evidence it intends to introduce at trial
and the rationale, whether or not mentioned in subparagraph (b)(1), for admitting
the evidence. If necessary to a determination of the determination of the
admissibility of the evidence under this rule, the defendant shall be required to
state the theory or theories of defense, limited only the defendant’s privilege
against self-incrimination.
Our Supreme Court has articulated the following test for the admission of other-acts evidence:
First, that the evidence be offered for a proper purpose under Rule 404(b);
second, that it be relevant under Rule 402 as enforced through Rule 104(b); third,
that the probative value of the evidence is not substantially outweighed by unfair
prejudice; fourth, that the trial court may, upon request, provide a limiting
instruction to the jury. [People v Denson, 500 Mich. 385, 398; 902 NW2d 306
(2017) (citation omitted).]
At trial, defendant objected to the detective’s testimony involving the NPLEx logs. He
testified that the logs showed that defendant successfully purchased Sudafed on May 23, 2017.
However, defendant had been blocked from purchasing on May 4, 5, and 7. Defendant would
have been unable to purchase Sudafed on May 24, because he had reached the nine-gram limit
for the 30-day period. The logs showed that Erik last purchased Sudafed on May 11, 2017. He
also would have been blocked on May 24. The logs also showed that defendant and Erik often
purchased or attempted to purchase Sudafed at the same place and time.
In regard to this testimony, defendant argued that the prosecution failed to provide proper
notice that it was admitting propensity evidence. Defendant also argued that such evidence was
irrelevant and that it was unfairly prejudicial. We agree with defendant that the evidence
pertaining to the NPLEx logs concerning defendant’s prior purchases of Sudafed constituted
“other acts” as contemplated by MRE 404(b). Here, the charged conduct essentially stemmed
from defendant’s alleged manufacture and use of methamphetamine. Although Sudafed is an
ingredient of methamphetamine, defendant was not charged with purchasing Sudafed or even
asking his passenger to purchase Sudafed for him. See People v Jackson, 498 Mich. 246, 265;
869 NW2d 253 (2015) (“The rule does not limit its reach to evidence of other criminal conduct,
rather it expressly contemplates evidence of ‘other crimes, wrong, or acts’ that may give rise to
an impermissible character-to-conduct inference.”). Instead, this evidence was provided as
support for the prosecution’s assertion that defendant was obtaining more Sudafed than what was
medically recommended in order to make methamphetamine, and that defendant asked his
passenger to purchase Sudafed on May 24 specifically for that purpose.
Such a holding is underscored by the testimony of the detective who told the jury that law
enforcement used the NPLEx system as an investigative tool to discover methamphetamine
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laboratories. He also explained that defendant’s NPLEx history showing two successful
purchases, but multiple blocks in 30 days “would be a huge indicator for [law enforcement]
investigating this.” He further stated that “[t]he only time we ever see records like this is when
they’re associated with meth labs or for smurfing . . . .” He explained that “smufing” was when
an individual used someone else to purchase pseudoephedrine because they were blocked from
making the purchase. He indicated that it was common with “meth cooks” because nine grams
in a 30-day period was not enough.
However, the prosecution did not present evidence relating to the amount of Sudafed
needed to produce the amount of methamphetamine discovered in defendant’s van.
Consequently, and contrary to the prosecutor’s arguments on appeal, this testimony was not
direct evidence of the charged offense. As a result, this evidence was subject to scrutiny
pursuant to MRE 404(b). See People v Engelman, 434 Mich. 204, 215-217; 453 NW2d 565
(1990) (explaining that, pursuant to MRE 404(b), the prosecution must “establish some
intermediate inference, other than the improper inference of character, which is in turn probative
of . . . the commission of the act”).
In this case, the record shows that the prosecution failed to provide pretrial notice of its
intent to introduce other-acts evidence at trial as required by MRE 404(b)(2). The prosecution
did provide the NPLEx logs to defendant two months before trial; however, MRE 404(b)(2) also
requires the prosecution to state the general nature of the evidence and its rationale for presenting
the evidence. See MRE 404(b)(2).
The error arises from the trial court’s failure to determine on the record whether the
prosecution showed good cause for failing to provide pretrial notice of this evidence. As a result,
the trial court erred in allowing the evidence relating to defendant’s prior purchases of Sudafed.
See Jackson, 498 Mich. at 261. See also MRE 404(b)(2). However, such a finding does not end
our analysis of this issue. We must next examine the record to determine whether defendant
suffered “outcome-determinative prejudice from the prosecution’s failure to follow, and the trial
court’s failure to apply, MRE 404(b)(2).” Jackson, 498 Mich. at 279.
Our examination of the record leads us to conclude that defendant did not suffer
outcome-determinative prejudice as a result of the failures by the prosecutor and trial court to
adhere to the dictates of MRE 404(b)(2). First, the evidence was relevant pursuant to MRE 401
because it had a tendency to make it more probable that defendant possessed the one-pot
methamphetamine laboratory in his van and did so with the knowledge and intent that it would
be used to manufacture methamphetamine. See MRE 401; MRE 402.
Second, this evidence was offered for a proper purpose. The fact that defendant had been
attempting to obtain illegal amounts of Sudafed showed that he had knowledge of the ingredients
required to make methamphetamine, that he possessed and was attempting to possess more items
necessary in the manufacture of methamphetamine, and that, with the other items found in his
van, he intended to make methamphetamine. Hence, the complained of evidence was not
“simply evidence of the defendant’s character or relevant to his propensity to act in conformance
with his character.” Jackson, 498 Mich. at 276 (quotation marks and citation omitted). Instead,
this evidence was offered to counter defendant’s theory that all the methamphetamine-
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manufacturing components belonged to Erik and that defendant had no knowledge of the one-pot
laboratory or methamphetamine discovered in his van.
Third, the evidence’s probative value was substantially outweighed by the danger of
unfair prejudice under MRE 403. The probative value was important to demonstrate defendant’s
knowledge and intent, and any resulting prejudice was not so unduly prejudicial as to require
exclusion. See id. at 277. Accordingly, the evidence involving defendant’s prior purchases of
Sudafed was substantively admissible under MRE 404(b).
Finally, we are guided by our Supreme Court’s observation in Jackson, 498 Mich. at 280,
where, similar to this case, the other evidence of defendant’s guilt at trial was overwhelming.
Even without the testimony involving defendant’s purchases of Sudafed in May 2017, the
prosecution provided testimony that a one-pot methamphetamine laboratory with
methamphetamine was discovered in defendant’s van. Moreover, defendant—a resident of
Indiana—drove to a 24-hour Walgreens in Niles, Michigan at 1:30 a.m. to obtain Sudafed, a
necessary component of methamphetamine. It appeared that defendant attempted to avoid police
by exiting the Walgreens parking lot using an inconvenient driveway at the back of the building
and by pulling into a random driveway before the officer could activate his patrol car’s lights.
The officer noticed that defendant appeared to be under the influence of methamphetamine.
Defendant’s blood test also tested positive for methamphetamine. Essentially, in considering the
evidence proffered at trial and the entire record, the trial court’s erroneous ruling concerning the
NPLEx testimony was ultimately harmless and did not “undermine[] the reliability of the
verdict . . . .” Id. Accordingly, although it was error for the prosecution not to provide
reasonable notice of the prior-acts evidence, defendant has not demonstrated that this error was
outcome-determinative. Id. at 278.
Defendant also contends on appeal that the trial court erred in denying his motion for a
mistrial because the trial court improperly admitted the NPLEx logs. The decision of a trial
court to grant or deny a motion for mistrial is reviewed for an abuse of discretion. People v
Gonzales, 193 Mich. App. 263, 265; 483 NW2d 458 (1992). The trial court should only grant a
mistrial for an irregularity that is prejudicial to the rights of the defendant and impairs his ability
to get a fair trial and when the prejudicial effect of the error cannot be removed in any other
way.” People v Lane, 308 Mich. App. 38, 60; 862 NW2d 446 (2014) (quotation marks and
citations omitted).
As discussed supra, the admission of the NPLEx logs and testimony regarding those logs
was relevant and admissible pursuant to MRE 404(b) regardless of the procedural error in
admitting that evidence. Accordingly, defendant has not shown that admission to this evidence
was unfairly prejudicial to him or impaired his ability to have a fair trial. See id. As a result, the
trial court did not abuse its discretion in denying defendant’s motion for a mistrial in this regard.
See Gonzales, 193 Mich. App. at 265.
Defendant further argues on appeal that the trial court erred in assessing offense variable
(OV 14) at 10 points. “Issues involving the proper interpretation and application of the
legislative sentencing guidelines . . . are legal questions that this Court reviews de novo.” People
v Ambrose, 317 Mich. App. 556, 560; 895 NW2d 198 (2016) (quotation marks and citation
omitted). The trial court’s “factual determinations are reviewed for clear error and must be
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supported by a preponderance of the evidence.” Id. (quotation marks and citation omitted).
“[T]he application of the facts to the law[] is a question of statutory interpretation, which” this
Court “reviews de novo.” Id. (quotation marks and citation omitted).
MCL 777.44(a) provides that OV 14 should be assessed 10 points if the trial court finds
that the defendant was a leader in a multiple offender situation. Otherwise, OV 14 should be
assessed at zero points. MCL 777.44(b). According to MCL 777.44(b)(2):
(2) All of the following apply to scoring offense variable 14:
(a) The entire criminal transaction should be considered when scoring this
variable.
(b) If 3 or more offenders were involved, more than 1 offender may be
determined to have been a leader.
This Court has explained “that for purposes of an OV 14 analysis, a trial court should
consider whether the defendant acted first or gave directions or was otherwise a primary causal
or coordinating agent.” People v Dickinson, 321 Mich. App. 1, 22; 909 NW2d 24 (2017)
(quotation marks and citation omitted). In this case, the evidence showed that defendant picked
up Erik and their female passenger in his van and drove them to the 24-hour Walgreens in Niles
at 1:30 a.m. The female passenger reported to police that she purchased the Sudafed for
defendant. Although defendant seemingly argued at trial that it was his brother Erik who was
manufacturing methamphetamine, Erik testified that he did not know the female passenger and
that she did not purchase the Sudafed for him because he already had everything that he needed
to make methamphetamine. Additionally, a pressure cooker containing a methamphetamine
laboratory and methamphetamine was also discovered in defendant’s van. Hence, evidence was
introduced at trial that defendant drove from Indiana to Michigan at 1:00 a.m. to have a third
party purchase Sudafed for him and, additionally, components used for making
methamphetamine and methamphetamine was discovered in his vehicle. On this record, the trial
court did not err in finding that “defendant gave direction or was otherwise a primary causal or
coordinating agent” in the crime. See id. Accordingly, defendant is not entitled to relief on this
issue.
Affirmed.
/s/ Jane E. Markey
/s/ Stephen L. Borrello
/s/ Mark T. Boonstra
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