People of Michigan v. Deonta Damek Cole ( 2023 )


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  •             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    PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
    September 14, 2023
    Plaintiff-Appellant,
    v                                                                     No. 362592
    Wayne Circuit Court
    DEONTA DAMEK COLE,                                                    LC No. 21-004718-01-AR
    Defendant-Appellee.
    Before: LETICA, P.J., and MURRAY and PATEL, JJ.
    PER CURIAM.
    The prosecution appeals by leave granted1 the circuit court’s order that affirmed the
    district court’s order dismissing one count of possession of 50 or more, but less than 450 grams
    of cocaine, MCL 333.7403(2)(a)(iii), based on insufficient evidence. We reverse the circuit
    court’s affirmance order and the district court’s dismissal order and remand to the district court
    for further proceedings consistent with this opinion.
    During the evening hours of New Year’s Day 2021, two on-duty Detroit police officers
    conducted a traffic stop of a 2012 Dodge Durango for the civil infraction of operating a motor
    vehicle with tinted windows. See MCL 257.709(1)(a); MCL 257.683(6); Detroit Ordinances
    § 46-3-1. Defendant, the Durango’s driver, was its lone occupant. The Durango was not
    registered in defendant’s name, but defendant later told the police that the vehicle was
    registered to his godson.
    After the police asked for defendant’s driver’s license and the vehicle’s registration as
    well as proof of insurance, they discovered that the vehicle was not insured, potentially
    subjecting defendant to a misdemeanor charge. See MCL 500.3102(2).2 Because the Durango
    was not insured, Detroit Police Department policy required the Durango to be towed.
    1
    See People v Cole, unpublished order of the Court of Appeals, entered February 3, 2023
    (Docket No. 362592).
    2
    MCL 500.3102(2) provides:
    -1-
    As the police removed defendant from the Durango, an officer inquired whether he was
    in possession of narcotics or narcotics paraphernalia.3 Defendant denied such items were
    present.
    One of the officers then began an inventory search. The officer was aware from her
    experience that the window regulator area could be lifted with minimal pressure and that items
    like money, valuables, weapons, or contraband could be stored inside. Beneath the driver’s
    side window regulator panel, the officer saw a plastic bag holding two plastic bags that
    contained approximately 57.90 grams of cocaine. Although the regulator panel was “intact”
    before the officer moved it, she testified that it lifted up “with minimal pressure.”
    The impounding officer continued the inventory search, opening the closed console
    between the front seats. From the bottom portion of the console, the officer recovered a hand-
    held digital scale with a white residue. This scale was not in plain view, but inside the console
    with other items.4
    The officer also located an October 2020 receipt from an automobile collision shop that
    listed a “Mr. Cole” as the service recipient of an oil change. This receipt, however, did not
    reflect defendant’s first name and the officer acknowledged that on the videotape. She stated
    that she did not know whether the receipt belonged to defendant.
    The officer’s body camera footage showed that defendant had $2,000 in cash in his
    possession when he was searched. Moreover, defendant told the officer that his house key was
    attached to the Durango’s key fob.
    The officer testified that she did not know the address to which the vehicle was
    registered. She also did not know the name of the vehicle’s owner, did not know who put the
    cocaine in the vehicle, or how long it had been in the vehicle. The officer also did not know
    An owner or registrant of a motor vehicle . . . with respect to which security is
    required, who operates the motor vehicle . . . or permits it to be operated upon
    a public highway in this state, without having in full force and effect security
    complying with this section or [MCL 500.3101 or MCL 500.3103] is guilty of
    a misdemeanor. A person who operates a motor vehicle . . . upon a public
    highway in this state with the knowledge that the owner or registrant does not
    have security in full force and effect is guilty of a misdemeanor. A person
    convicted of a misdemeanor under this section shall be fined not less than
    $200.00 nor more than $500.00, imprisoned for not more than 1 year, or both.
    The police eventually ticketed defendant for the civil infraction and the no-insurance
    misdemeanor.
    3
    Although the officer’s body camera footage was admitted as an exhibit during the preliminary
    examination, the district court judge viewed only portions of it. The video footage shows that
    the officer specifically asked defendant about “weed,” “crack cocaine,” or like items.
    4
    Review of the video shows that the hand-held digital scale was beneath an open 100-count
    sandwich baggie box.
    -2-
    who else may have had access to the vehicle. Furthermore, she did not see defendant handling
    the narcotics and he had no drug paraphernalia on his person.
    After the close of proofs at the preliminary examination, the prosecution asked the
    district court to bind defendant over on possession of cocaine as charged. The district court
    denied the request, holding there was insufficient evidence to bind defendant over to the circuit
    court because the prosecution failed to demonstrate there was probable cause to believe that
    defendant knowingly possessed the contraband.5 The district court then dismissed the
    possession of cocaine charge.
    The prosecution filed a claim of appeal in the circuit court. After briefing and argument,
    the circuit court affirmed the district court’s decision, concluding that the district court had not
    abused its discretion in finding the prosecution failed to establish probable cause that defendant
    had constructive possession of the contraband recovered from the vehicle.6
    On appeal to this Court, the prosecution continues to argue that the district court abused
    its discretion when it denied the prosecution’s motion for a bindover and dismissed the
    possession of cocaine charge against defendant. We agree.
    A district court’s bindover decision regarding the sufficiency of the evidence is
    reviewed for an abuse of discretion. People v Flick, 
    487 Mich 1
    , 9; 
    790 NW2d 295
     (2010).
    See also People v Seewald, 
    499 Mich 111
    , 116; 
    879 NW2d 237
     (2016) (“Absent an abuse of
    discretion, a reviewing court should not disturb the district court’s bindover decision.”). An
    5
    The district court judge specifically stated that she did not want to hear a recitation of the
    facts because
    [t]he issue is whether or not [defendant] had knowledge that the drugs were in
    the car as they were found in the window regulator that was unbothered as your
    witness [the inventorying officer] explained. Explain to me how he had
    knowledge that those drugs were in that compartment of this vehicle that was
    not registered to him?
    After the prosecutor responded that defendant had constructive knowledge of the cocaine,
    pointing to the key fob and the service receipt, the district court queried:
    If your [sic] driving your mother’s vehicle – Your [sic] driving your aunt’s
    vehicle to the store and you get stopped because the windows are tinted and
    there is something in the door that you – in the door of the vehicle are you telling
    me that you should know that there’s something inside of a container in the door
    of the vehicle that your mother drives?
    When the prosecutor responded affirmatively, the court thanked her and dismissed the
    case.
    6
    The circuit court reasoned:
    the only thing [is] that . . . this gentleman was driving this vehicle that’s not
    register[ed] to him in a place where items would not typically be found. There’s
    nothing on this record that suggest[s] that the window regulator wasn’t working.
    That there was something that would’ve caused him to investigate further as a
    person that was driving the car.
    -3-
    abuse of discretion occurs when the district court’s decision falls outside the range of principled
    outcomes. People v Shami, 
    501 Mich 243
    , 251; 
    912 NW2d 526
     (2018). Furthermore, “[t]his
    Court reviews 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). If, however, the
    district court based its ruling on questions of law, its ruling is reviewed de novo. Shami, 
    501 Mich at 251
    . “Questions of statutory interpretation are similarly reviewed de novo.” 
    Id.
    To bindover a defendant for trial, the prosecutor must demonstrate that a felony was
    committed and there was probable cause defendant committed the felony, which “requires a
    quantum of evidence ‘sufficient to cause a person of ordinary prudence and caution to
    conscientiously entertain a reasonable belief’ of the accused’s guilt on each element of the
    crime charged.” People v Yamat, 
    475 Mich 49
    , 52; 
    714 NW2d 335
     (2006); People v Hudson,
    
    241 Mich App 268
    , 277; 
    615 NW2d 784
     (2000), citing MCL 766.13. The prosecution is not
    required to prove each element beyond a reasonable doubt, but it must present some evidence
    of each element. People v Yost, 
    468 Mich 122
    , 126; 
    659 NW2d 604
     (2003). The magistrate
    must review all the evidence presented, evaluating the competency and weight of the evidence,
    in addition to the credibility of the witnesses. People v Anderson, 
    501 Mich 175
    , 184; 
    912 NW2d 503
     (2018). “Circumstantial evidence and reasonable inferences arising from the
    evidence are sufficient to support a bindover.” People v Corr, 
    287 Mich App 499
    , 503; 
    788 NW2d 860
     (2010). If the evidence conflicts or raises a reasonable doubt, the defendant should
    be bound over for resolution of the questions by the trier of fact. People v Redden, 
    290 Mich App 65
    , 84; 
    799 NW2d 184
     (2010).
    MCL 333.7403(1) prohibits a person from “knowingly or intentionally possess[ing] a
    controlled substance” that is “classified in schedule 1 or 2 that is a narcotic drug or a drug
    described in [MCL 333.7214(a)(iv)].” MCL 333.7403(2)(a). Cocaine is classified as a
    Schedule 2 controlled substance and is described in MCL 333.7214(a)(iv). To establish the
    element of possession, the prosecution must prove that the defendant had “dominion or right
    of control over the drug with knowledge of its presence and character.” People v Baham, 
    321 Mich App 228
    , 247; 
    909 NW2d 836
     (2017) (quotation marks and citation omitted). “The
    defendant need not own or have actual physical possession of the substance to be found guilty
    of possession; constructive possession is sufficient.” People v Cohen, 
    294 Mich App 70
    , 76;
    
    816 NW2d 474
     (2011). “Constructive possession, which may be sole or joint, is the right to
    exercise control over the drug coupled with knowledge of its presence.” 
    Id.
     “Constructive
    possession exists when the totality of the circumstances indicates a sufficient nexus between
    the defendant and the controlled substance.” 
    Id. at 76-77
     (quotation marks and citation
    omitted). “Close proximity to contraband in plain view is evidence of possession.” 
    Id. at 77
    .
    Finally, and importantly, “because 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.” People v
    Kanaan, 
    278 Mich App 594
    , 622; 
    751 NW2d 57
     (2008).
    In this case, the prosecution presented evidence sufficient to establish probable cause
    that defendant knowingly possessed the cocaine because defendant had a connection to the
    contraband beyond his mere presence in the same location. It is undisputed that defendant was
    the sole occupant and driver of the vehicle. It is also undisputed that the plastic bags containing
    the cocaine were recovered from the area beneath the driver’s side window regulator panel,
    which was in close proximity to defendant. Although the bagged cocaine was not in plain
    view, the seizing officer testified, and the videotape confirmed, that the panel was easily
    -4-
    removed and held plastic bags containing over 57 grams or two ounces of cocaine. This amount
    is not insignificant and has value. See e.g., People v Watkins, 
    468 Mich 233
    , 236; 
    661 NW2d 553
     (2003) (quotation marks and citation omitted) (“10.98 grams of crack cocaine [had] an
    estimated value of $1,000”); People v Thomas, 
    260 Mich App 450
    , 451; 
    678 NW2d 631
     (2004)
    (“The cocaine weighed slightly over 201 grams and had an estimated street value of $20,000.”).
    The police also seized a digital scale with a white residue on it from the bottom of the
    vehicle’s center console. Again, although this scale was not in plain view, it was in close
    proximity to defendant and underneath an open box of 100 sandwich baggies. This box was
    plainly visible on the officer’s bodycam video7 upon opening the bottom center console. Given
    the proximity of the scale and the box of sandwich baggies, the baggies were certainly available
    to be used as packaging material for the cocaine that the police found in other plastic bags. See
    e.g., People v Whittaker, 
    465 Mich 422
    , 423; 
    635 NW2d 687
     (2001) (describing a plastic bag
    that held 32 “plastic baggies containing rock cocaine”); People v Mahdi, 
    317 Mich App 446
    ,
    453; 
    894 NW2d 732
     (2016) (describing the use of sandwich baggies to package drugs).
    Additionally, $2,000 in cash was found on defendant’s person at the time of the arrest.8
    Typically, one does not carry such a large amount of money. Indeed, our Supreme Court has
    recognized that “carrying a large sum of cash is strong evidence of some relationship with
    illegal drugs.” See In re Forfeiture of $180,975, 
    478 Mich 444
    , 464; 
    734 NW2d 489
     (2007);
    People v Garvin, 
    235 Mich App 90
    , 103; 
    597 NW2d 194
     (1999) (“Obviously, it is highly
    peculiar for someone to carry such a large amount of cash [thousands of dollars] on one’s
    person. . . . It is common knowledge that illicit drug transactions, being illegal, often involve
    cash payments.”).
    Acknowledging that the vehicle was not registered to defendant, reasonable inferences
    arising from the totality of the evidence presented indicate that defendant exercised dominion
    or right of control over the vehicle and its contents. See e.g., People v McGhee, 
    268 Mich App 600
    , 623; 
    709 NW2d 595
     (2005) (noting “[c]ircumstantial evidence that a defendant had the
    exclusive control or dominion over property on which contraband narcotics are found is
    sufficient to establish that the defendant constructively possessed the drug”). First, the
    placement of defendant’s house key on the vehicle’s key fob suggested that defendant had care,
    control, or management over the vehicle and the contraband therein for more than a brief
    moment in time, contrary to the scenario raised in the district court’s hypothetical. Second, the
    impounding officer discovered a receipt from an automobile collision shop dated October 2020,
    months before the January 2021 traffic stop, that listed “Mr. Cole” as the service recipient of
    an oil change. While the car’s registrant was identified as defendant’s godson during the
    preliminary examination, the godson’s surname was not provided. Rather, the officer identified
    7
    See footnote 3.
    8
    See footnote 3. We recognize that the prosecution did not specifically argue this fact below;
    however, it was repeatedly stated on the officer’s bodycam video, which was admitted as an
    exhibit during the preliminary examination. As already discussed, the examining “magistrate’s
    duty at a preliminary examination is to consider all the evidence presented” before making a
    bindover determination. Anderson, 
    501 Mich at 178
    . We further note that, during the booking
    process, which was also on the videotape, defendant told the police that he was a self-employed
    real estate agent.
    -5-
    defendant, who had that surname, even as she conceded that she could not definitely link the
    receipt to defendant given that it lacked his first name. To summarize, defendant Cole, who
    had $2,000 in cash, was the lone operator of the vehicle containing the cocaine, the hand-held
    scale with white residue, and the box of baggies.
    At this point, it bears repeating that “minimal circumstantial evidence will suffice to
    establish” a defendant’s knowledge or intent and that his “state of mind . . . can be inferred
    from all the evidence presented.” Kanaan, 
    278 Mich App at 622
    . Additionally, “the probable-
    cause standard at the preliminary examination ‘is not a very demanding threshold,’ ” People v
    Lewis, 
    509 Mich 1052
    , 1052; 
    975 NW2d 450
     (2022),9 quoting People v Harlan, 
    258 Mich App 137
    , 145; 
    669 NW2d 872
     (2003). In fact, probable cause to bind a defendant over on the
    charged crime may exist regardless of whether the evidence conflicts10 or whether there is
    reasonable doubt as to the defendant’s guilt. 
    Id.
     In this case, the totality of the circumstantial
    evidence presented at the preliminary examination established defendant’s knowledge of the
    cocaine as well as a legally sufficient connection between defendant, the vehicle, and the
    cocaine therein. Stated otherwise, the evidence presented at the preliminary examination was
    “sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a
    reasonable belief” that defendant constructively possessed the cocaine because he was the
    person who had secreted it. Yamat, 
    475 Mich at 52
    . Because the prosecution presented
    sufficient evidence to establish probable cause to believe that defendant had knowledge of and
    constructive possession over the cocaine in the vehicle, the district court abused its discretion
    when it denied the prosecution’s motion for bindover and dismissed the possession of cocaine
    charge.
    Reversed and remanded to the district court for further proceedings consistent with this
    opinion. We do not retain jurisdiction.
    /s/ Anica Letica
    /s/ Christopher M. Murray
    /s/ Sima G. Patel
    9
    “Supreme Court orders that include a decision with an understandable rationale establish
    binding precedent.” People v Giovannini, 
    271 Mich App 409
    , 414; 
    722 NW2d 237
     (2006).
    10
    In this regard, we recognize that defendant denied possession of any drug or drug
    paraphernalia; however, the circumstantial evidence presented by the prosecution painted
    another picture, creating a question of fact for a jury’s resolution.
    -6-
    

Document Info

Docket Number: 362592

Filed Date: 9/14/2023

Precedential Status: Non-Precedential

Modified Date: 9/15/2023