People Of Mi V Bobbi Jo Godfrey ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 7, 2022
Plaintiff-Appellee,
v No. 355826
Delta Circuit Court
BOBBI JO GODFREY, LC No. 19-009876-FH
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and MURRAY and O’BRIEN, JJ.
PER CURIAM.
Following a bench trial, defendant was convicted of possession of methamphetamine, MCL
333.7403(2)(b)(i). The trial court sentenced defendant as a habitual third offender, MCL
769.11(1)(a), to serve 3 to 20 years’ imprisonment. Defendant appeals her conviction and sentence
by delayed leave granted.1 We affirm defendant’s conviction, but we vacate her sentence and
remand for resentencing.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
On March 3, 2019, defendant was pulled over by the police for a traffic stop. After
obtaining consent to search the vehicle, a police officer found an “Ice Breakers” brand mint
container in defendant’s purse. Inside the container were a few partially-smoked cigarettes, a
rolled marijuana joint, a short headphone-jack adapter cord, and a clear plastic baggie containing
crystals that were determined to be methamphetamine. The container is round and puck-shaped,
approximately 2½ inches across and perhaps an inch deep. The container has two flip-up openings
on the top, the largest of which opens slightly more than half of the top surface. The top is white,
and the bottom and sides are green and seemingly slightly translucent. The plastic baggie was
approximately one inch long and three-quarters of an inch wide. In a photograph taken of the
container, the baggie containing several crystals is visible underneath the other items in the
1
People v Godfrey, unpublished order of the Court of Appeals, entered April 7, 2021 (Docket No.
355826).
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container. Defendant denied any knowledge of the methamphetamine but admitted to placing the
other items in the container. Defendant was arrested and charged with possession of
methamphetamine.
At a bench trial, the two police officers who were present at the traffic stop testified that
the baggie with methamphetamine was visible upon opening the mint container, consistent with
the photograph described above. The officer who transported defendant to jail stated that
defendant told him that she had used methamphetamine five days before her arrest. Additionally,
a detective testified that he spoke with defendant while she was in jail, and defendant told him that
she had used methamphetamine a few days prior to her arrest and that she purchased
methamphetamine every other day. Defendant testified that she found the mint container while
doing laundry at a friend’s house, placed the other items inside, and never saw or noticed the bag
of methamphetamine. Defendant did not dispute the presence of methamphetamine, but rather
only her knowledge of its presence.
On October 23, 2019, the trial court found defendant guilty of possession of
methamphetamine. Specifically, the trial court found defendant’s claim that she was unaware of
the methamphetamine not credible and found that she was “either fully aware that the container
had a packet of methamphetamine in it, or that she was personally responsible for placing the
packet in the container in the first place.” The trial court sentenced defendant as a habitual third
offender to serve 3 to 20 years’ imprisonment. Defendant subsequently filed a motion for
resentencing, arguing that the trial court failed to sentence her pursuant to an agreement that the
prosecution would drop the habitual-offender enhancement if defendant waived her right to a
preliminary examination. The trial court denied defendant’s motion, and this appeal followed.
II. SENTENCING AGREEMENT
Defendant argues that she is entitled to resentencing because the trial court failed to
sentence her pursuant to a sentencing agreement with the prosecutor. Specifically, defendant
asserts that the prosecution agreed not to file a habitual-offender enhancement if she waived her
right to a preliminary examination. She contends that because she did in fact waive her preliminary
examination, she is entitled to resentencing within the terms of that agreement. Although we
disagree with defendant’s reasoning, we conclude that the record compels the conclusion that she
is entitled to resentencing.
We review a trial court’s decision on a motion for resentencing for an abuse of discretion.
People v Puckett, 178 Mich App 224, 227; 443 NW2d 470 (1989). “A trial court abuses its
discretion when it selects an outcome that falls outside the range of reasonable and principled
outcomes.” People v Odom, 327 Mich App 297, 303; 933 NW2d 719 (2019).
The record reflects that a plea agreement had been offered to defendant at one point,
although it was apparently never reduced to writing or made in open court. At a hearing on May
6, 2019, both the prosecutor and defendant’s counsel explained to the trial court that defendant had
been given an offer that would have involved dropping the habitual-offender enhancement if she
entered a plea of guilty before her preliminary examination. However, both attorneys agreed that
because defendant actually went to the preliminary examination, and the prosecutor had officers
there ready to testify, the offer was terminated. Defendant nevertheless waived her preliminary
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examination,2 and she later told the trial court that she did so because she believed the habitual-
offender notice would be dropped. The trial court immediately offered defendant the option of
going back to district court to have a preliminary examination with her presumption of innocence
still intact,3 but defendant declined the offer.
After defendant was convicted, she moved for resentencing, arguing that, as she
consistently maintained throughout the case, she had been offered the plea agreement to drop the
habitual offender notice with no conditions beyond waiving her preliminary examination.
Unfortunately, by that time, defendant’s original trial counsel was deceased. The prosecutor
pointed out that no such promise was ever placed on the record, and “our offers are always
conditioned on a plea, it is never conditioned simply on a waiver of a prelim.” The trial court
concluded that it could not “find on these facts that there was any proper basis upon which the
argument can be made that the habitual third was not going to be used in the sentencing process.”
Pursuant to MCR 2.507(G),4
An agreement or consent between the parties or their attorneys respecting the
proceedings in an action is not binding unless it was made in open court, or unless
evidence of the agreement is in writing, subscribed by the party against whom the
agreement is offered or by that party’s attorney.
The above court rule applies in criminal matters. People v Mooradian, 221 Mich App 316, 318-
320; 561 NW2d 495 (1997). The minimal available evidence suggests that an agreement of some
kind was offered, but that it was conditioned upon defendant waiving the preliminary examination
before the day of that examination. Furthermore, it is clear that, in light of the prosecutor’s
statements and the death of defendant’s trial counsel, it is impossible to verify what had specifically
been communicated to defendant. Ultimately, because no agreement was reduced to writing or
made in open court, the trial court did not abuse its discretion by declining to resentence defendant
strictly on the basis of defendant’s claimed recollections.
However, our review of the record reveals an anomaly: on September 25, 2020, a motion
and order of nolle prosequi was entered, dismissing the habitual offender notice without prejudice.
The order includes a motion, which states:
2
Defendant contends that “no waiver of arraignment was filed with the Court,” but the lower court
record does contain a preliminary examination waiver signed by defendant on April 4, 2019, and
entered on April 5, 2019.
3
A scheduling order entered on April 12, 2019, unambiguously stated that after 4:00 p.m. on May
3, 2019, only unconditional guilty pleas would be accepted. Defendant’s colloquy regarding her
waiver took place at a hearing on May 6, 2019.
4
Formerly MCR 2.507(H).
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[the trial prosecutor], prosecuting official, moves for a nolle prosequi in this case
for the following reason(s): The Judge found the defendant guilty of Count 1. The
prosecution will dismiss the Habitual Offender-Third Offense Notice.
The motion was signed by the trial prosecutor. The order then states that the motion is granted as
to the habitual offender notice, and it was signed by the same trial judge who presided over the
rest of the proceedings. The motion and order states on its face that it pertains to the same lower
court file number, 19-009876-FH, and it is reflected in the lower court register of actions.
Nevertheless, although the order was entered after sentencing, defendant had been sentenced as a
habitual offender, and we are aware of no indication that defendant’s sentence was modified.
Inexplicably, the order was entered before defendant moved for resentencing, yet at no time did
defendant, the prosecutor, or the trial court mention it.
In the absence of any other explanation for the order of nolle prosequi, we conclude that
either defendant is entitled to the benefit of the order of nolle prosequi and must be resentenced
accordingly, or the order of nolle prosequi constitutes evidence that defendant’s recollection of the
offered plea agreement was accurate and she likewise must be resentenced accordingly. At oral
argument, both parties agreed that the order of nolle prosequi was valid and that defendant was
entitled to resentencing. We therefore remand for resentencing.
III. SUFFICIENCY OF THE EVIDENCE
Defendant also argues that there was insufficient evidence for the trial court to find her
guilty of possession of methamphetamine. We disagree.
“We review claims of insufficient evidence de novo.” People v Kanaan, 278 Mich App
594, 618; 751 NW2d 57 (2008). “When ascertaining whether sufficient evidence was presented
in a bench trial to support a conviction, this Court must view the evidence in a light most favorable
to the prosecution and determine whether a rational trier of fact could find that the essential
elements of the crime were proven beyond a reasonable doubt.” Id. The reviewing court “must
defer to the fact-finder’s role in determining the weight of the evidence and the credibility of the
witnesses and must resolve conflicts in the evidence in favor of the prosecution.” People v Savage,
327 Mich App 604, 614-615; 935 NW2d 69 (2019) (quotation marks and citation omitted).
“Circumstantial evidence and reasonable inferences arising from that evidence can constitute
satisfactory proof of the elements of a crime.” People v Carines, 460 Mich 750, 757; 597 NW2d
130 (1999) (quotation omitted).
In this case, the trial court found defendant guilty of one count of possession of
methamphetamine pursuant to MCL 333.7402(2)(b)(i), which provides that “[a] person shall not
knowingly or intentionally possess a controlled substance.” Possession of a controlled substance
is proven by showing that the defendant had a “dominion or right of control over the drug with
knowledge of its presence and character.” People v Meshell, 265 Mich App 616, 621; 696 NW2d
754 (2005) (quotation marks and citations omitted). “[B]ecause it can be difficult to prove a
defendant’s state of mind on issues such as knowledge and intent, minimal circumstantial evidence
will suffice to establish the defendant’s state of mind, which can be inferred from all the evidence
presented.” Kanaan, 278 Mich App at 622; see also People v Fetterley, 229 Mich App 511, 517-
518; 583 NW2d 199 (1998).
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Defendant contends only that the evidence was insufficient to prove that she knew she had
methamphetamine and intended to possess it. We disagree. The police officer who pulled
defendant over testified that defendant appeared “pretty nervous” when he approached her car
because she was “[s]haking, not making much eye contact, [and] frantically digging through her
purse.” Police officers also testified that the baggie with methamphetamine was plainly visible
upon opening the mint container. Further, the trial court expressly found defendant’s claim that
she was unaware of the methamphetamine’s existence not credible. Not only does this Court give
great deference to the fact-finder’s credibility determination, see Savage, 327 Mich App at 613-
614, but the trial court ably explained why defendant’s claim was implausible:
Common sense dictates that [defendant’s] insertion of the other contents within the
container would have required a visual inspection of the open part of the container.
For her to be unaware of the methamphetamine baggie within the container at the
time is extraordinarily unlikely, especially given the fact that the baggie was located
amongst the items that she inserted and readily visible to the naked eye upon
opening the larger flap as revealed through the [police officers’] testimony.
We have reviewed the photographs of the container and, on that basis, we cannot find error in the
trial court’s reasoning or conclusion. Finally, defendant made several statements to police officers
about using and purchasing methamphetamine in the days prior to her arrest. Together, the
evidence strongly supported a reasonable inference that defendant had knowledge of the
methamphetamine in the container. Accordingly, the prosecution’s evidence was sufficient to find
beyond a reasonable doubt that defendant was guilty of possession of methamphetamine.5
Defendant’s conviction is affirmed. Defendant’s sentence is vacated, and the matter is
remanded for resentencing without the habitual offender enhancement. Defendant’s resentencing
shall take priority on remand and shall be completed within 21 days of the entry of this opinion.
We do not retain jurisdiction.
/s/ Amy Ronayne Krause
/s/ Christopher M. Murray
/s/ Colleen A. O’Brien
5
Defendant also claims that her conviction was “against the great weight of the evidence.” To the
extent that defendant is raising this as an alternative argument, it is abandoned. “An appellant’s
failure to properly address the merits of his assertion of error constitutes abandonment of the
issue.” People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004). Defendant’s assertion
regarding the great weight of the evidence is unsupported by facts or legal authority. Therefore,
defendant has abandoned the issue.
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