People of Michigan v. Tevin Denzel Sutton ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 10, 2017
Plaintiff-Appellee,
v No. 328692
St. Clair Circuit Court
TEVIN DENZEL SUTTON, LC No. 15-000116-FC
Defendant-Appellant.
Before: BOONSTRA, P.J., and CAVANAGH and K. F. KELLY, JJ.
PER CURIAM.
Defendant appeals by right his convictions, following a jury trial, of assault with intent to
commit murder, MCL 750.83, assault with intent to do great bodily harm less than murder,1
MCL 750.84, possession with intent to deliver less than 50 grams of heroin (second offense),
MCL 333.7401(2)(a)(iv) and MCL 333.7413(2), third-degree fleeing or eluding a police officer,
MCL 257.602a(3), resisting or obstructing a police officer, MCL 750.81d(1), and two counts of
felonious assault, MCL 750.82. The trial court sentenced defendant as a fourth-offense habitual
offender, MCL 769.12, to concurrent prison terms of 20 to 45 years for the assault with intent to
commit murder conviction, 15 to 35 years for the assault with intent to do great bodily harm
conviction, 10 to 40 years for the possession with intent to deliver heroin conviction, 2 to 10
years for the third-degree fleeing or eluding conviction, and 5 to 15 years each for the resisting or
obstructing and felonious assault convictions. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
On December 16, 2014, undercover officers were conducting surveillance on defendant
for suspicion of selling narcotics. After Deputy Nicholas Singleton of the St. Clair Sheriff’s
Department, a member of the undercover team, observed defendant conduct brief meetings with
several persons and then drive or walk long distances before returning to the original location, he
concluded that defendant was selling narcotics and requested assistance from the Port Huron
Police Department in pulling over defendant’s car. Officer Ryan Sheedy of the Port Huron
1
Defendant was convicted of this offense as a lesser offense of assault with intent to commit
murder.
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Police Department, a uniformed officer, attempted to stop defendant’s car in his marked police
vehicle. After Sheedy activated his vehicle’s overhead lights, defendant did not stop and instead
continued to proceed slowly. Officer Matt Finnie of the Port Huron Police Department pulled
his undercover van in front of defendant’s car in order to force defendant to stop. Singleton
drove to the scene to render assistance.
Finnie, who was dressed in plain clothes and wearing a protective vest marked “police,”
stood at the driver’s window of defendant’s vehicle and ordered defendant to get out of the car or
roll down the window. Sheedy was positioned on the passenger side of defendant’s vehicle.
Defendant looked back and forth between Finnie and Sheedy. Defendant rolled down the
window a few inches, and Finnie stuck his arm through the window to unlock the door.
Defendant grabbed Finnie’s arm and accelerated his car. Finnie was dragged along with the car,
but eventually was able to extract his arm from the car. Singleton had positioned himself
approximately 10 feet in front of defendant’s car. When defendant accelerated the car forward,
Singleton was forced to jump onto the hood to avoid being struck. Singleton and Finnie each
fired a single shot into the car, striking defendant, after which defendant stopped accelerating the
vehicle.
Defendant testified at trial and acknowledged possessing heroin, but denied attempting to
elude the police, when they attempted to stop his vehicle. He stated that he wanted to get off the
main road before stopping. Defendant denied knowing that Finnie was a police officer, and
claimed that Finnie punched him when he rolled down his window. Defendant denied seeing
Singleton in front of his vehicle, and denied putting his car into drive during the police stop.
Defendant claimed that seconds after Finnie struck him, he felt an impact on his chest from being
shot. Defendant denied that he had intended to kill or harm anyone, and also denied that he
attempted to resist when the police were attempting to handcuff him.
The jury found defendant guilty of assault with intent to commit murder regarding
Singleton, guilty of assault with intent to do great bodily harm less than murder regarding Finnie,
guilty of possession with intent to deliver less than 50 grams of heroin, guilty of third-degree
fleeing or eluding a police officer, guilty of two counts of felonious assault, and guilty of
resisting or obstructing a police officer. The trial court sentenced defendant as a fourth habitual
offender as described above. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
In a brief filed by appointed appellate counsel, defendant argues that the evidence was
insufficient to support his convictions of assault with intent to commit murder and assault with
intent to do great bodily harm less than murder. In his Standard 42 brief, defendant again argues
that the evidence was insufficient to support these two assault convictions, and he further
2
A brief filed in propria persona by a criminal defendant pursuant to Supreme Court
Administrative Order No. 2004-6.
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challenges the sufficiency of the evidence in support of his convictions of felonious assault and
resisting or obstructing a police officer. We disagree with regard to all charges.
Due process in a criminal case requires a prosecutor to produce sufficient evidence to
warrant the trier of fact in finding that each element of the charged offense was proved beyond a
reasonable doubt. People v Nowak, 462 Mich. 392, 399; 614 NW2d 78 (2000). In reviewing a
sufficiency of the evidence question, we view the evidence de novo in a light most favorable to
the prosecution to determine whether a rational trier of fact could conclude that the elements of
the offense were proven beyond a reasonable doubt. People v Bulls, 262 Mich. App. 618, 623;
687 NW2d 159 (2004). This Court will not interfere with the jury’s role of determining the
weight of the evidence or the credibility of witnesses. Id.; People v Milstead, 250 Mich. App.
391, 404; 648 NW2d 648 (2002). A trier of fact may make reasonable inferences from direct or
circumstantial evidence in the record. People v Vaughn, 186 Mich. App. 376, 379-380; 465
NW2d 365 (1990).
The offenses of assault with intent to commit murder, assault with intent to do great
bodily harm less than murder, and felonious assault share the common element of an assault. An
assault is defined as “either an attempt to commit a battery or an unlawful act that places another
in reasonable apprehension of receiving an immediate battery.” People v Starks, 473 Mich. 227,
234; 701 NW2d 136 (2005). A battery is defined as the “intentional, unconsented and harmful or
offensive touching of the person of another[.]” People v Reeves, 458 Mich. 236, 240 n 4; 580
NW2d 433 (1998).
A. ASSAULT WITH INTENT TO COMMIT MURDER
The elements of assault with intent to commit murder are: (1) an assault; (2) with an
actual intent to kill; (3) which, if successful, would make the killing murder.3 People v Brown,
267 Mich. App. 141, 147-148; 703 NW2d 230 (2005). Assault with intent to commit murder is a
specific intent crime. Id. at 147.
Defendant was convicted of assault with intent to murder Singleton. Singleton described
the incident in which he was forced to leap onto the hood of defendant’s accelerating car in order
to avoid being run over by the car. Singleton stated that just before defendant’s car accelerated
toward him, defendant looked directly at him. Singleton was wearing a ballistic vest with the
word “sheriff” printed on it. Singleton stated that he jumped onto the car and heard and felt the
car continue to accelerate, and he thought he was doing to die. Singleton stated that defendant’s
car continued to move, but stopped accelerating only after he fired a shot through the windshield,
and that he was then able to jump off the hood.
Bystanders who witnessed the accident testified that defendant’s car moved forward, and
it appeared that defendant was attempting to drive away from the scene. A police detective who
3
This element indicates that the defendant must have intended to kill the victim under
circumstances that would not have justified, excused, or mitigated the crime. See People v
Hunter, 141 Mich. App. 225, 234; 367 NW2d 70 (1985).
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performed a series of tests on defendant’s vehicle testified that defendant’s car was in park when
Officer Finnie approached, but that the car was quickly shifted into drive. The detective stated
that his review of the police car video showed that defendant’s car made a slight change in
direction as it moved forward and struck Finnie’s van. It appeared to the detective that defendant
was steering the car in a deliberate manner.
Direct and circumstantial evidence supports defendant’s conviction of assault with intent
to commit murder. Singleton’s testimony that defendant looked directly at him before driving
the car forward, and that he feared that he would be hit and forced under the car, was sufficient
to establish the element of assault. Starks, 473 Mich. at 234. The evidence supported the
inference that defendant drove the car in a deliberate manner when it accelerated forward and
struck Finnie’s van.4 The testimony that the car changed directions supported an inference that
defendant intended to strike Singleton with the car, and intended to kill Singleton by pinning him
between the car and the van. Such a killing would have been murder because no evidence
showed that the killing would have been justified, excused, or mitigated. Accordingly, the
evidence was sufficient to establish the elements of assault with intent to commit murder.
Brown, 267 Mich. App. at 147-148.
B. ASSAULT WITH INTENT TO DO GREAT BODILY HARM LESS THAN MURDER
The elements of assault with intent to do great bodily harm less than murder are: “(1) an
attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an
intent to do great bodily harm less than murder.” People v Parcha, 227 Mich. App. 236, 239; 575
NW2d 316 (1997). Assault with intent to do great bodily harm less than murder is a specific
intent crime. Brown, 267 Mich. App. at 149. The intent to do great bodily harm less than murder
has been defined as “an intent to do serious injury of an aggravated nature.” People v Mitchell,
149 Mich. App. 36, 39; 385 NW2d 717 (1986).
Defendant was convicted of assault with intent to do great bodily harm to Finnie. Finnie
testified that defendant rolled down the driver’s window, and that he (Finnie) reached inside to
attempt to unlock the door. However, defendant knocked his hand away and grabbed his arm.
Finnie stated that defendant deliberately drove the car forward while holding onto Finnie’s arm,
and that he feared that he would be dragged along and seriously injured or killed. Finnie stated
that he yanked his arm back a second time and was able to free himself. The testimony from
Finnie, Singleton, and the bystanders supported a finding that defendant acted intentionally when
he drove the car forward. Further, the testimony that defendant held onto Finnie’s arm as
defendant accelerated his vehicle, thereby dragging Finnie alongside the moving vehicle,
supported an inference that defendant intended to cause Finnie great bodily harm. Parcha, 227
Mich. App. at 239.
4
Singleton had jumped off the car before it hit the van.
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C. FELONIOUS ASSAULT
The elements of felonious assault are: (1) an assault; (2) with a dangerous weapon; and
(3) with the intent to place the victim in reasonable apprehension of an immediate battery.
People v Davis, 216 Mich. App. 47, 53; 549 NW2d 1 (1996). A dangerous weapon can be “an
instrumentality which, although not designed to be a dangerous weapon, is used as a weapon
and, when so employed, is dangerous.” People v Barkley, 151 Mich. App. 234, 238; 390 NW2d
705 (1986). Felonious assault is a specific intent crime. People v Davis, 126 Mich. App. 66, 69;
337 NW2d 315 (1983).
Defendant was convicted of felonious assault with respect to Officers Finnie and
Singleton. Finnie’s testimony that defendant grabbed his arm, and deliberately drove the car
forward while holding onto his arm, established the elements of an assault and a dangerous
weapon, i.e., the car. A car is not designed to be a dangerous weapon, but it can qualify as such
when used in an attempt to drag a person. See Barkley, 151 Mich. App. at 238. Further, the
testimony from Finnie, Singleton, and the bystanders supported a finding that defendant acted
intentionally when he drove the car forward. Vaughn, 186 Mich. App. at 379-380.
Singleton testified that he was standing approximately 10 feet in front of defendant’s car
when defendant looked directly at him and then accelerated his car toward him. Singleton
testified that he jumped onto the hood of the car to avoid being struck by the car. Singleton’s
testimony established the elements of felonious assault. Moreover, the jury was entitled to infer
from Singleton’s testimony (that defendant looked directly at him before accelerating) that
defendant acted with the specific intent to commit an assault when he accelerated his vehicle
toward Singleton. Vaughn, 186 Mich. App. at 379-380.
Accordingly, defendant’s convictions of felonious assault with respect to Finnie and
Singleton are supported by sufficient evidence. Davis, 216 Mich. App. at 53.
D. RESISTING OR OBSTRUCTING A POLICE OFFICER
MCL 750.81d(1) provides:
Except as provided in subsections (2), (3), and (4), an individual who
assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who
the individual knows or has reason to know is performing his or her duties is
guilty of a felony punishable by imprisonment for not more than 2 years or a fine
of not more than $2,000.00, or both.
The elements of resisting and obstructing a police officer are: “(1) the defendant assaulted,
battered, wounded, resisted, obstructed, opposed, or endangered a police officer, and (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.” People v Corr, 287 Mich. App. 499, 503; 788 NW2d 860 (2010); MCL 750.81d(1). The
term “obstruct” is defined as “the use or threatened use of physical interference or force or a
knowing failure to comply with a lawful command.” MCL 750.81d(7)(a).
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Defendant argues that the phrase “knows or has reason to know” in MCL 750.81d(1) is
unconstitutionally vague because it allows the factfinder unfettered discretion in determining
whether an offense was committed. In addition, defendant contends that no evidence showed
that he resisted arrest knowing that the men surrounding him were police officers. We reject
these arguments.
Officer Sheedy testified that once defendant got out of the car and was lying on his
stomach on the ground, he held his arms stiffly underneath him, and resisted the officers’
attempts and commands to move his hands behind his back so that he could be handcuffed.
Deputy Singleton and Officer Finnie gave similar testimony. The jury was entitled to accept this
testimony as credible and to conclude that this testimony supported a finding that defendant
knowingly obstructed the officers’ attempts to handcuff him. Milstead, 250 Mich. App. at 404;
MCL 750.81d(7)(a).
Furthermore, there is no merit to defendant’s argument that MCL 750.81d(1) is
unconstitutionally vague because the phrase “knows or has reason to know” in MCL 750.81d(1)
gives the factfinder unfettered discretion to determine whether an offense occurred. A statute is
presumed to be constitutional, and the courts have a duty to construe a statute as constitutional
unless its unconstitutionality is clearly apparent. People v Deroche, 299 Mich. App. 301, 305;
829 NW2d 891 (2013). MCL 750.81d(1) clearly states that a statutory violation will be found
only if the trier of fact finds that the accused resisted or obstructed a person who the accused
“knows or has reason to know” is an officer performing his or her duties. This phrase thus
actually narrows the application of MCL 750.81d(1) and curtails the factfinder’s discretion in
determining whether this offense was committed. See People v Perez-DeLeon, 224 Mich. App.
43, 50; 568 NW2d 324 (1997) (holding that a statutory requirement of actual or constructive
notice was not unconstitutionally vague). This element, like the other elements of an offense,
may be supported by direct or circumstantial evidence. The evidence showed that Sheedy was
driving a marked police car when he attempted to stop defendant’s car, and that Finnie and
Singleton wore protective vests bearing the words “police” and “sheriff,” respectively. This
evidence was sufficient to allow the jury to infer that defendant had reason to know that the
persons whom he was resisting were officers performing their official duties.
III. REMAINING ISSUES IN DEFENDANT’S STANDARD 4 BRIEF
A. ADMISSIBILITY OF DEFENDANT’S STATEMENTS
Defendant argues that his statements to the police should have been suppressed because
they were not freely and voluntarily made. Because defendant failed to challenge the
admissibility of any statement in the trial court, this issue is unpreserved. Therefore, our review
is limited to plain error affecting defendant’s substantial rights. See People v Carines, 460 Mich.
750, 763-764; 597 NW2d 130 (1999).
Both the United States and the Michigan Constitutions guarantee the right against self-
incrimination. US Const, Am V; Const 1963, art 1, § 17. The right protects a person from being
compelled to testify against himself or to make an incriminating statement. People v White, 493
Mich. 187, 193-194; 828 NW2d 329 (2013). A statement made by an accused during a custodial
interrogation is inadmissible unless the accused knowingly, voluntarily, and intelligently waived
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his Fifth Amendment rights. Miranda v Arizona, 384 U.S. 436, 444; 86 S. Ct. 1602; 16 L. Ed. 2d
694 (1966).
Although defendant argues that he made statements that were coerced because he was
held in a cold jail cell for an extended period of time and was not allowed anything to eat or
given any pain medication for his gunshot wounds, the record does not contain any substantive
reference to a statement made by defendant that was offered at trial. In addition, the parties did
not refer to any statement made by defendant in either opening statement or closing argument,
and the trial court did not instruct the jury on the proper way to evaluate any statement made by
defendant. Further, although defendant testified and acknowledged that he spoke to Officer
Reece at the jail, he made no mention of the conditions under which he gave any statement and
did not assert that any statement was coerced.
An appellant must argue the merits of an issue, People v King, 297 Mich. App. 465, 474;
824 NW2d 258 (2012), and must support factual statements with specific references to the
record. People v Petri, 279 Mich. App. 407, 413; 760 NW2d 882 (2008). Defendant has not done
so. He asserts that he made a statement and contends that the statement was coerced, but
provides no context or factual support for his argument. Because defendant has not identified
any record support for his argument regarding either the admission of a statement or the
circumstances under which any statement was made, and because the record does not reveal that
any statement of defendant’s was admitted or referenced at trial, he has not met his burden of
demonstrating a plain error affecting his substantial rights. See Carines, 460 Mich. at 763-764.
B. HABITUAL-OFFENDER ENHANCEMENT
Next, defendant argues that he was erroneously sentenced as a habitual offender because
the prosecution did not timely file the notice of intent to seek an enhanced sentence. He also
argues that, even if the habitual-offender notice was timely filed, he was improperly sentenced as
a fourth-offense habitual offender because he had prior felony convictions arising from only two
prior criminal incidents. We disagree with both arguments.
Preliminarily, we note that defendant did not challenge the timeliness of the habitual
offender notice or his status as a fourth-offense habitual offender in the trial court. Therefore,
both of these issues are unpreserved, and our review is limited to plain error affecting
defendant’s substantial rights. See Carines, 460 Mich. at 763-764. This Court reviews de novo
an issue of statutory interpretation. See People v Buehler, 477 Mich. 18, 23; 727 NW2d 127
(2007).
A prosecutor seeking an enhanced sentence must file notice of that intent within 21 days
of the defendant’s arraignment or, if the arraignment is waived, within 21 days of the filing of
the underlying charge or charges. MCL 769.13(1); MCR 6.112(F). Defendant argues that the
prosecutor failed to timely file the notice of intent to seek an enhanced sentence because he was
arraigned on December 16, 2014, and the prosecutor did not file the notice of intent until
January 22, 2015, outside the 21-day period. The record does not support defendant’s argument.
Although the incident from which the charges arose took place on December 16, 2014, the
record discloses that defendant was not arraigned until December 26, 2014, presumably because
he was hospitalized for treatment of the gunshot wounds he sustained on December 16, 2014.
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Defendant’s preliminary examination took place on January 13, 2015, and the district court noted
that defendant had been charged as a fourth-offense habitual offender. Thus, the record discloses
that the notice of intent was timely filed within the requisite 21-day period.
Defendant also argues that the trial court erred by sentencing him as a fourth-offense
habitual offender. Defendant acknowledges that he was convicted of bank robbery in 2010, and
was convicted of delivery or manufacture of less than 50 grams of heroin and maintaining a drug
house in 2013. He argues, however, that he could not be sentenced as a fourth-offense habitual
offender because the prior convictions arose out of only two prior criminal incidents. We
disagree.
MCL 769.12(1) authorizes enhanced punishment “[i]f a person has been convicted of any
combination of 3 or more felonies or attempts to commit felonies, . . . and that person commits a
subsequent felony[.]” In People v Gardner, 482 Mich. 41; 753 NW2d 78 (2008), our Supreme
Court overruled prior cases, including People v Stoudemire, 429 Mich. 262; 414 NW2d 693
(1987), and People v Preuss, 436 Mich. 714; 461 NW2d 703 (1990), which had held that multiple
felonies arising from the same incident could count as only a single felony for purposes of
sentence enhancement. The Gardner Court considered MCL 769.11, the third-habitual offender
statute, and concluded that the plain language of the statute did not require that the prior felony
convictions must have resulted from separate criminal incidents. Gardner, 482 Mich. at 68. The
only material difference between the language of MCL 769.11(1) and the language of
MCL 769.12(1) is that the former applies where the defendant “has been convicted of any
combination of 2 or more felonies,” whereas the latter applies where the defendant “been
convicted of any combination of 3 or more felonies.” Accordingly, the rationale of Gardner
applies equally to MCL 769.12. Therefore, because defendant had three prior felony
convictions, the trial court did not err by sentencing him as a fourth-offense habitual offender.
C. DOUBLE JEOPARDY
Next, defendant argues that the double jeopardy protection against multiple punishments
for the same offense prohibit his multiple convictions of assault with intent to commit murder
and felonious assault with respect to Singleton, and his multiple convictions of assault with
intent to do great bodily harm less than murder and felonious assault with respect to Finnie.
Because defendant did not challenge his convictions on double jeopardy grounds in the trial
court, this issue is not preserved. Accordingly, our review of this issue is limited to plain error
affecting defendant’s substantial rights. See Carines, 460 Mich. at 763-764; People v McGee,
280 Mich. App. 680, 682; 761 NW2d 743 (2008).
The United States and Michigan Constitutions prohibit placing a defendant in jeopardy
twice for the same offense. US Const, Am V; Const 1963, art 1, §15. The prohibition against
double jeopardy protects against: (1) a second prosecution for the same offense after a defendant
has been acquitted of that offense; (2) a second prosecution for the same offense after a
defendant has been convicted of that offense; and (3) multiple punishments for the same offense.
Nutt, 469 Mich. at 574. The protection against multiple punishments for the same offense is not
violated if the Legislature has clearly expressed the intent to authorize cumulative punishments
under two statutes. People v Miller, 498 Mich. 13, 18; 869 NW2d 204 (2015). If the Legislature
has not clearly expressed an intent, then Michigan courts must apply the “abstract legal
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elements” test set out in People v Ream, 481 Mich. 223, 225-226; 750 NW2d 536 (2008). Under
this test, two offenses are considered to be the same only if it is “impossible to commit the
greater offense without also committing the lesser offense.” Miller, 498 Mich. at 19.
Defendant argues that the offenses of assault with intent to commit murder and felonious
assault, and assault with intent to do great bodily harm less than murder and felonious assault
must be considered the same offense because the charges resulted from a continuous sequence of
events. Defendant’s argument is without merit because it seeks to apply an incorrect test. The
language of the statutes prohibiting assault with intent to commit murder and felonious assault do
not reveal any legislative intent regarding multiple punishments. Similarly, the language of the
statutes prohibiting assault with intent to do great bodily harm less than murder and felonious
assault do not reveal any legislative intent regarding multiple punishments. Therefore, we must
determine whether felonious assault contains an element that is not present in either assault with
intent to commit murder and assault with intent to do great bodily harm less than murder, or vice
versa. Miller, 498 Mich. at 19.
Felonious assault contains an element, i.e., the use of a dangerous weapon, MCL 750.82,
that is not present in either assault with intent to commit murder or assault with intent to do great
bodily harm less than murder. Simply put, a dangerous weapon is not required to commit an
assault with intent to commit murder, MCL 750.83, or an assault with intent to do great bodily
harm less than murder, MCL 750.84. Further, both MCL 750.83 and MCL 750.84 both contain
intent requirements not present in MCL 750.82. Thus, for purposes of double jeopardy, assault
with intent to commit murder and felonious assault are not the same offense, and assault with
intent to do great bodily harm less than murder and felonious assault are not the same offense.
Miller, 498 Mich. at 19; see also People v Strawther, 480 Mich. 900, 739 NW2d 82 (2007)
(reversing this Court and stating that MCL 750.84 and MCL 750.82 have different elements and
“the defendant may be punished for each.”). Accordingly, defendant’s convictions do not violate
the prohibition against double jeopardy.
D. PROSECUTOR’S CONDUCT
Next, defendant argues that the prosecutor erred5 by making improper remarks, using
false testimony, and denigrating defense counsel. Because defendant did not object to the
prosecutor’s conduct at trial, this issue is unpreserved. Therefore, our review is limited to plain
error affecting defendant’s substantial rights. Carines, 460 Mich. at 763-764.
5
Defendant refers to these alleged errors as “prosecutorial misconduct.” This Court held in
People v Cooper, 309 Mich. App. 74, 87–88; 867 NW2d 452 (2015), that the term “prosecutorial
error” is preferred over the more commonly used phrase of “prosecutorial misconduct,” which
should be reserved for only the most extreme cases when a prosecutor's conduct violates the
rules of professional conduct or constitutes illegal conduct. See also People v Bosca, 310 Mich
App 1, 25–26; 871 NW2d 307 (2015) (applying the Cooper distinction). Accordingly, we will
adopt this same convention.
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The test of prosecutorial error is whether the defendant was denied a fair and impartial
trial. People v Watson, 245 Mich. App. 572, 586; 629 NW2d 411 (2001). Prosecutorial error
issues are decided on a case-by-case basis. The reviewing court must examine the pertinent
portion of the record, and evaluate a prosecutor’s remarks in context. People v Noble, 238 Mich
App 647, 660; 608 NW2d 123 (1999). Prosecutorial comments must be read as a whole and
evaluated in light of defense arguments and the relationship they bear to the evidence admitted at
trial. People v Schutte, 240 Mich. App. 713, 721; 613 NW2d 370 (2000).
Defendant cites general principles for review of an allegation of prosecutorial error, and
sets out 21 statements by the prosecutor that he asserts were improper. However, he does not
specify why the statements were improper or how the statements prejudiced him. An appellant
must argue the merits of an issue, King, 297 Mich. App. at 474, and must support factual
statements with specific references to the record. Petri, 279 Mich. App. at 413. Defendant
provides record citations for the statements to which he objects, but provides no context for his
argument that the statements were improper. A party cannot simply announce a position and
then leave it to this Court to discover and rationalize the basis for his claims. People v Payne,
285 Mich. App. 181, 195; 774 NW2d 714 (2009). Because these claims are unpreserved, and
because defendant has not supported his argument that the prosecutor committed error by
making the identified statements, he has not met his burden of demonstrating a plain error
affecting his substantial rights.
E. MOTION TO SUPPRESS EVIDENCE
Finally, defendant argues that the trial court erred by denying the motion to suppress the
heroin found in his car on the ground that the traffic stop was illegal. He contends that the
surveillance officers did not observe him engage in a hand-to-hand drug transaction with any
other person, and thus did not have an articulable and reasonable suspicion that he was violating
the law. We disagree.
“This Court will not reverse a trial court’s findings regarding a motion to suppress
evidence as illegally seized unless they are clearly erroneous.” People v Dillon, 296 Mich. App.
506, 508; 822 NW2d 611 (2012). We review de novo a question of law as to whether the search
“was supported by the constitutional standard of reasonable suspicion.” Id.
In Dillon, 296 Mich App at 508-509, this Court set out the applicable law regarding
evidence seized as a result of a traffic stop:
The right against unreasonable searches and seizures is guaranteed by both
the United States and Michigan Constitutions. US Const, Am IV; Const 1963,
art 1, § 11; People v Kazmierczak, 461 Mich. 411, 417; 605 NW2d 667 (2000).
Generally, if evidence is unconstitutionally seized, it must be excluded from trial.
People v Goldston, 470 Mich. 523, 528; 682 NW2d 479 (2004); Terry v Ohio, 392
U.S. 1, 12-13; 88 S. Ct. 1868; 20 L. Ed. 2d 889 (1968). But a police officer may stop
and detain a motor vehicle on the basis of an articulable and reasonable suspicion
that the vehicle or one of its occupants is violating the law, including a law
regulating equipment. People v Matthew Williams, 236 Mich. App. 610, 612; 601
NW2d 138 (1999). This Court’s determination of whether there was reasonable
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suspicion to justify a stop must be made on a case-by-case basis, evaluated under
the totality of the circumstances, and based on common sense. People v Jenkins,
472 Mich. 26, 32; 691 NW2d 759 (2005). The subjective intent of the police
officer is irrelevant to the validity of the stop. People v John Williams, 472 Mich.
308, 314 n 7; 696 NW2d 636 (2005).
A court is required to suppress evidence otherwise lawfully seized during
a traffic stop only if the officer did not have reasonable suspicion to justify the
stop. See People v Davis, 250 Mich. App. 357, 363-364; 649 NW2d 94 (2002);
Williams, 236 Mich. App. at 612.
The trial court correctly found that the stop of defendant’s car was based on an articulable
and reasonable suspicion that defendant was engaged in criminal activity. The trial court noted
that Singleton had worked with the Drug Task Force for more than 2-1/2 years, that prior to the
stop of defendant’s car he had been investigating defendant for the sale of heroin, and that he had
conducted a controlled buy from defendant within 72 hours of the stop. Singleton surveilled
defendant on December 16, 2014, and saw defendant meeting with various persons for short
periods of time, driving or walking long distances after doing so, and traveling to an area known
for narcotics activity.
Singleton relied on his training and experience as a narcotics officer, including similar
behavior he had observed from other persons who were engaged in narcotics trafficking, the
controlled buys he made from defendant, and his observations on December 16, 2014, to form a
reasonable suspicion that defendant was selling narcotics. Singleton was entitled to make
reasonable inferences regarding defendant’s behavior based on his experience. People v Jones,
260 Mich. App. 424, 429; 678 NW2d 627 (2004). The trial court did not clearly err in its findings
of fact, or in ruling that the search was supported by the requisite constitutional standard. Dillon,
296 Mich. App. at 508.
Affirmed.
/s/ Mark T. Boonstra
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
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