20221215_C361783_28_361783.Opn.Pdf ( 2022 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 15, 2022
Plaintiff-Appellee,
v No. 361783
Wayne Circuit Court
DAWAUN MCQUEEN, LC No. 22-000111-02-FH
Defendant-Appellant.
Before: HOOD, P.J., and SWARTZLE and REDFORD, JJ.
PER CURIAM.
Defendant appeals by leave granted1 the order denying his motion to quash the information
charging him with possession or use of a cell phone in jail contrary to MCL 801.262a(2). On
appeal, defendant argues that the bindover should have been quashed because the prosecution
failed to identify him at the preliminary examination as the person who committed the alleged
offense and because no evidence established that he possessed the cell phone. We reverse.
I. FACTUAL BACKGROUND
A corporal for the Wayne County Sheriff’s Department Internal Affairs division found a
cell phone during a search of Ward 609, Cell 5, Bed 5. When the corporal asked to whom the cell
phone belonged, the station officers said Dawaun McQueen. That led to charging defendant with
violating MCL 801.262a(2) because he was not authorized to have a cell phone. At the time of
the search, all of the cells were open and vacant because the inmates were all in the bullpen. Before
the search, the cells had been open and accessible to all of the inmates in the ward. When the
corporal testified at the preliminary examination, he failed to identify defendant who was present
in the courtroom. The district court bound defendant over to the circuit court, finding probable
cause that he had violated MCL 801.262a(2).
1
People v McQueen, unpublished order of the Court of Appeals, entered August 5, 2022 (Docket
No. 361783).
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Defendant moved to quash the information on the ground that he was not identified as the
person who inhabited Cell 5, Bed 5, and that probable cause did not exist to believe that he
possessed the cell phone. The prosecution responded that probable cause existed to bind defendant
over because he had been identified as the inhabitant of Cell 5, Bed 5 by the station officers and
that the presence of the cell phone in that location provided enough evidence to establish probable
cause that defendant committed a felony. At the hearing on the motion, the circuit court agreed
that probable cause existed to bind defendant over because he inhabited the cell where the phone
was found and enough evidence had been presented to find that defendant constructively possessed
the cell phone. Defendant appealed.
II. STANDARD OF REVIEW
We review for an abuse of discretion a trial court’s decision regarding a motion to quash
the information. People v Burkman, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket Nos.
356600 and 356602); slip op at 7. An abuse of discretion occurs when the trial court’s “decision
falls outside the range of reasonable and principled outcomes.” Id. (citation omitted). “Absent an
abuse of discretion, a reviewing court should not disturb the district court’s bindover decision.”
People v Seewald, 499 Mich 111, 116; 879 NW2d 237 (2016). We review “de novo the bindover
decision to determine whether the district court abused its discretion, giving no deference to the
circuit court’s decision.” People v Norwood, 303 Mich App 466, 468; 843 NW2d 775 (2013)
(quotation marks and citation omitted).
III. ANALYSIS
Defendant argues that the district court abused its discretion by binding defendant over to
circuit court because insufficient evidence established that defendant was the person who
committed the alleged offense. Consequently, the circuit court erred in denying defendant’s
motion to quash the information. We agree.
“The purpose of a preliminary examination is to determine whether there is probable cause
to believe that a crime was committed and whether there is probable cause to believe that the
defendant committed it.” People v Perkins, 468 Mich 448, 452; 662 NW2d 727 (2003). “At a
preliminary examination, the prosecution must present evidence establishing that the defendant
committed the charged offense, and the district court must find that probable cause exists to bind
over a defendant for trial.” People v Fairey, 325 Mich App 645, 648-649; 928 NW2d 705 (2018)
(citation omitted). “To satisfy this burden, the prosecution must present evidence of each and
every element of the charged offense, or enough evidence from which an element may be inferred.”
Id. at 649 (citation omitted). “Identity is an essential element of every crime.” Id. (citation
omitted). “Probable cause is established if the evidence would persuade a careful and reasonable
person to believe in the defendant’s guilt.” Id. This evidence can be circumstantial, but must
provide reasonable grounds to suspect the defendant committed the crime. Id. “Mere suspicion is
not the same as probable cause . . . .” Id. at 651-652.
The only evidence on the record that defendant committed the alleged crime of possessing
a cell phone in jail is the corporal’s testimony that an inmate named Dawaun McQueen inhabited
the jail cell where the corporal found the cell phone. The prosecution, however, presented no
witness who identified defendant as the person who inhabited Cell 5. All of the prisoners were
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outside during the search, so the corporal did not see any inmate in the cell where he found the cell
phone. At the preliminary examination, the corporal admitted that he could not identify defendant.
The lack of evidence that defendant inhabited Cell 5 illustrates a lack of probable cause that
defendant committed the charged offense.
A reasonable and careful person would not find probable cause to believe defendant guilty
where the prosecution presented no identification evidence beyond matching defendant’s name to
the cell. See id. at 649 (holding that probable cause is present where a reasonable and careful
person would believe in the defendant’s guilt). But there is nothing here that would lead a
reasonable and careful person to believe that the inference creates more than a mere suspicion that
defendant committed the crime. See id. at 651-652 (holding that a mere suspicion is not probable
cause). Considering the essential nature of identifying the proper defendant, the district court’s
decision to bind defendant over without the foundational evidence necessary to identify defendant
as the person who allegedly committed this crime fell outside of the range of principled outcomes.
See id. at 649 (holding that “identity is an essential element of every crime”). Probable cause did
not exist to bind defendant over to circuit court. Therefore, the district court abused its discretion
in binding defendant over, and the circuit court improperly denied defendant’s motion to quash
the information.
Defendant also argues that the district court abused its discretion by binding defendant over
to circuit court because probable cause did not exist to believe that defendant possessed the cell
phone and that the circuit court erred in denying defendant’s motion to quash the information. We
agree.
Part of the purpose of a “preliminary examination is to determine whether there is probable
cause to believe that a crime was committed . . . .” Perkins, 468 Mich at 452. In order to do so,
the prosecution must present evidence for each element of the charged offense or evidence
supporting an inference that an element exists. Fairey, 325 Mich App at 649. “Probable cause is
established if the evidence would persuade a careful and reasonable person to believe in the
defendant’s guilt.” Id. This evidence can be circumstantial, but must provide reasonable grounds
to suspect that the defendant committed the crime, not just suspicion. Id. at 649, 651-652.
MCL 801.262a(2) provides: “A prisoner shall not possess or use a cellular telephone or
other wireless communication device in a jail or a building appurtenant to a jail or on grounds used
for jail purposes except as authorized by the person in charge of the jail.” Possession can be actual
or constructive. People v Burgenmeyer, 461 Mich 431, 438; 606 NW2d 645 (2000). “Michigan
courts also have recognized that the term ‘possession’ includes both actual and constructive
possession.” Id. (quotation marks and citation omitted). Constructive possession requires
proximity to the article and indicia of control. Id. Physical possession is not necessary to convict
a defendant of possessing contraband; constructive possession is enough. Id.Defendant was not authorized to use a cell phone. However, the corporal did not find
defendant in possession of or using the cell phone, nor did the prosecution present any evidence
that defendant used it at any time. The corporal found the cell phone in a box of crackers in the
cell without any person around. Assuming defendant inhabited Cell 5, Bed 5, the only evidence
presented that defendant constructively possessed the cell phone is that it was found in a box of
crackers in his cell, near or on his bed. Such evidence would permit an inference that defendant
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constructively possessed the cell phone if defendant had exclusive control of the space where the
cell phone was found. The record, however, indicates that that was not the situation here. Indicia
of control are needed to prove constructive possession. Id. Though exclusive control is not
necessary to establish that defendant had constructive possession of the cell phone, the greater the
access to the area that others have, the less one may infer that defendant had control or constructive
possession of the cell phone. The record indicates that prisoners could travel between cells on
Ward 609. No jail cell was subject to the exclusive control of its assigned inhabitant. Further,
considering the number of cells on Ward 609, many inmates could have accessed Cell 5. When
the corporal found the cell phone, all of the cell doors were open making Cell 5 accessible to all
of the inmates on Ward 609 before the search. Under the circumstances, an equally reasonable
inference could be drawn that another inmate placed the box of crackers containing the cell phone
into Cell 5. The prosecution presented no evidence that defendant had possession or even
knowledge of the presence of the cell phone in the cell.2
Notably, the prosecution does not need to prove the elements beyond a reasonable doubt
to bind over a defendant, but it must present some evidence from which each element of the crime
can be inferred. People v Hamblin, 224 Mich App 87, 92; 568 NW2d 339 (1997). The possibility
that the cell was shared by multiple inmates and, more directly, the fact that the cell was open and
accessible by all inmates does not support a reasonable inference that the inhabitant of the cell and
bed had possession of the cell phone. Without anything more than the location of the box
containing the cell phone to link defendant to the cell phone, we conclude that probable cause did
not exist to believe that defendant possessed the cell phone. Therefore, the district court abused
its discretion in this regard as well.
Reversed.
/s/ Noah P. Hood
/s/ Brock A. Swartzle
/s/ James Robert Redford
2
The record is unclear whether the jail cells housed one inmate or multiple inmates.
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