People of Michigan v. Deshawn Doral Griswold

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 26, 2021
Plaintiff-Appellee,
v No. 353118
Kalamazoo Circuit Court
DESHAWN DORAL GRISWOLD, LC No. 2019-001310-FH
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and BECKERING and BOONSTRA, JJ.
PER CURIAM.
Defendant appeals by right his jury-trial convictions of possession with intent to deliver
methamphetamines, MCL 333.7401(2)(b)(i); unlawfully driving away a motor vehicle (UDAA),
MCL 750.413; and possession of oxycodone, MCL 7403(2)(b)(ii). The trial court sentenced
defendant as a fourth-offense habitual offender, MCL 769.12, to concurrent prison terms of 9 to
40 years for the possession with intent to deliver methamphetamine conviction, 1 to 15 years for
the UDAA conviction, and 1 to 15 years for the possession of oxycodone conviction. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Defendant was arrested while driving a stolen vehicle that held multiple controlled
substances, including 16.06 grams of methamphetamine and a partial oxycodone pill. Several
Kalamazoo Department of Public Safety (KDPS) officers testified that, on the day of defendant’s
arrest, they were doing surveillance as part of the Kalamazoo Valley Enforcement Team (KVET)
and observed defendant alone in an SUV parked in a grocery store parking lot. Defendant then
drove across the street to park at a restaurant. KDPS Investigator Ben Ulman testified that he saw
defendant go inside the restaurant and return to the passenger side of the SUV approximately four
times. KDPS and KVET Investigator John Khillah testified that he had Kalamazoo Central
Dispatch run the SUV’s license plate through the Law Enforcement Information Network, which
showed that the SUV was a rental car that had been reported stolen. KDPS Officer John Resseguie
was told to detain the driver of the SUV; but when Officer Resseguie arrived at the restaurant, he
was uncertain which of the three people near the SUV was the driver. Officer Resseguie spoke
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with defendant, who was one of the three; he denied knowing anything about the SUV. As Officer
Resseguie began to search the SUV, defendant walked away.
In the center console of the SUV, Officer Resseguie found what was later identified as
16.06 grams of methamphetamine, a digital scale with methamphetamine and cocaine residue on
it, and lottery tickets (or betting slips). He also found cigars and lottery tickets in the center
cupholders; marijuana and a partial oxycodone pill in the driver’s side door; mail reflecting
defendant’s name in the back pocket of the driver’s seat; a broken iPhone in the passenger seat;
and two phone charging cables. Investigator Khillah testified that 16.06 grams of
methamphetamine was “definitely a distribution amount,” as it had a value of approximately
$3,200 and provided approximately 160 individual doses of methamphetamine. He added that one
of the baggies in the SUV contained a larger chunk of methamphetamine, which was “typically
how it comes off and if you’re getting it from the kilo or the pound.” Investigator Khillah opined
from the fact that the methamphetamine, scale (which is commonly used to weigh narcotics for
individual sale), and lottery tickets (which are commonly used to package narcotics for sale) were
found together in a spot easily accessible to the driver, that a dealer was operating a “one-stop
shop” to weigh the methamphetamine, package it, and hand it to a customer.
KDPS Officer Joe Dusenbery located and arrested defendant, and KDPS Investigator Scott
Bogard told defendant that he was being arrested because there were controlled substances in the
SUV. Although Investigator Bogard did not specify what type of substance was found, defendant
responded, “Look at me, does it look like I do meth[?]” Investigator Bogard searched defendant
and found $1,200 in cash and a cellular phone. The money was not in a wallet, and 50 of the bills
were $20 bills. Investigator Bogard testified that in his experience, $20 bills are commonly used
in narcotics sales. Defendant did not claim to have borrowed the SUV from another person.
Anthony Noyes (Noyes), an assistant branch manager at Hertz Rental, testified that he
received a call from KPDS officers telling him that the stolen SUV had been found. He looked up
the SUV and found that it had not been returned when it was due. The renter was not defendant,
and defendant was not listed as an authorized user. Noyes testified that Hertz had reached out to
the renter numerous times, but the renter did not return the SUV, so Hertz had reported the SUV
as stolen.
The jury convicted defendant as described. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
Defendant argues that there was insufficient evidence to convict him of possession with
intent to deliver methamphetamine. We disagree.
This Court reviews de novo a defendant’s challenge to the sufficiency of the evidence.
People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). We view the “evidence in the
light most favorable to the prosecution to determine whether a rational trier of fact could have
found the essential elements of the crime to have been proved beyond a reasonable doubt.” Id.We must “draw all reasonable inferences and make credibility choices in support of the jury
verdict.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). The elements of a crime
may be proven by circumstantial evidence and reasonable inferences from that evidence. Id. “All
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conflicts in the evidence must be resolved in favor of the prosecution.” People v Kanaan, 278
Mich App 594, 619; 715 NW2d 57 (2008). “This Court will not interfere with the trier of fact’s
role of determining the weight of the evidence or the credibility of witnesses.” Id. The prosecution
is not required to “negate every reasonable theory consistent with the defendant’s innocence,” so
long as the prosecution proves beyond a reasonable doubt its own theory “in the face of whatever
contradictory evidence the defendant may provide.” People v Carson, 189 Mich App 268, 269;
471 NW2d 655 (1991).
MCL 333.7401(2)(b)(i) provides that a “person shall not manufacture, create, deliver, or
possess with intent to manufacture, create, or deliver” methamphetamine. “Possession may be
either actual or constructive, and may be joint as well as exclusive.” People v Fetterley, 229 Mich
App 511, 515; 583 NW2d 199 (1998). A defendant need not have physical possession of the
controlled substance; rather, the question is “whether the defendant had dominion or control over
the controlled substance.” Id. “Possession may be found even when the defendant is not the owner
of recovered narcotics.” People v Wolfe, 440 Mich 508, 520; 441 Mich 1201 (1992). Mere
presence near the drugs is insufficient to prove constructive possession; instead, the prosecution
must show an additional connection between the defendant and contraband. Wolfe, 440 Mich
at 520. Although presence at a location is not alone sufficient to establish constructive possession,
circumstantial evidence and reasonable inferences may be used to establish possession. Fetterley,
229 Mich App at 515. A defendant does not need to have actually delivered a substance in order
for the jury to find that he or she had the intent to deliver. Id. at 517. The intent may be inferred
from the circumstances, including the quantity of the controlled substance and the way it was
packaged. Id. at 517-518. “Possession with intent to deliver can be established by circumstantial
evidence and reasonable inferences arising from that evidence, just as it can be established by
direct evidence.” Wolfe, 440 Mich at 526.
In this case, Investigator Khillah testified as an expert witness in drug distribution and user
paraphernalia. He explained that drug dealers will often carry a lot of cash, have multiple cell
phones, and use a vehicle that is not registered to them. He also explained that methamphetamine
dealers often use digital scales to measure the methamphetamine and will package it in receipts or
lottery tickets. He testified that people who used methamphetamine will generally only buy a daily
supply at a time until they can get more money, because they will “squander away every bit of
money,” and that it is rare for them possess more than 3.5 grams of methamphetamine at a time.
Additionally, the jury heard evidence that defendant was seen as the only occupant of the SUV,
that he was seen driving the SUV, and that mail reflecting defendant’s name was found in the
SUV. The methamphetamine found in the SUV was a large amount that was found near a digital
scale and lottery tickets.
Viewed in the light most favorable to the prosecution, the evidence was sufficient to
establish that defendant possessed the methamphetamine and had the intent to deliver it. See
Meissner, 294 Mich App at 452. Although defendant argues that the prosecution did not prove
beyond a reasonable doubt that defendant knew the methamphetamine was in the center console
of the SUV, the evidence at trial supports the jury’s finding that defendant had knowledge of the
methamphetamine. See Wolfe, 440 Mich at 520. Multiple officers testified that they saw
defendant as the only person inside the SUV. See id.; People v Nunez, 242 Mich App 610, 616-
617; 619 NW2d 550 (2000). Investigator Resseguie saw a large amount of drugs in the center
console of the SUV, and found mail in the SUV that had defendant’s name on it. The evidence
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supported the inference that defendant was aware of, and constructively possessed, the contents of
the SUV he occupied. See People v Hardiman, 466 Mich 417, 422-423; 646 NW2d 158 (2002).
Further, when Investigator Bogard told defendant that they had found a controlled
substance in the car, he did not specify what type of substance; nonetheless, defendant said, “Look
at me, does it look like I do meth.” Moreover, Investigator Resseguie testified that defendant gave
him a false name, would not provide his birthday, and denied any connection to the SUV, even
after multiple officers saw him driving it. Officer Dusenbery and Investigator Khillah testified
that they saw defendant walk away from the SUV when Investigator Resseguie started looking
inside the SUV. These actions support the inference that defendant was aware of the illegal
contents of the SUV. See Wolfe, 440 Mich at 522-524.
It was reasonable for the jury to find that defendant had “dominion and control” over the
methamphetamine in the SUV. See Fetterley, 229 Mich App at 515. Therefore, the prosecution
presented sufficient evidence from which the jury could find beyond a reasonable doubt that
defendant knew about and possessed the methamphetamine. See Meissner, 294 Mich App at 452.
Defendant also specifically argues that there was insufficient evidence to find that he had
the intent to distribute the methamphetamine. Again, we disagree. Investigator Ulman and
Investigator Khillah testified that they watched defendant go back and forth between the SUV and
the restaurant multiple times. Investigator Khillah testified to his expert opinion that defendant
had “multiple contacts indicative of drug transaction requests.” Investigator Bogard thought that
defendant was selling, rather than using, methamphetamine, because defendant did not physically
resemble a methamphetamine user and there was no drug paraphernalia in the car. Investigators
Bogard and Khillah each further testified that the amount of cash that defendant had and the
denominations of the cash were common for someone selling narcotics rather than using them.
And Investigator Khillah testified that it was common for dealers not to carry a wallet or
identification or to drive a vehicle not registered to them, and that dealers usually had multiple
phones; all were true of defendant.
Investigator Khillah further explained that methamphetamine dealers often package
methamphetamine into something like a receipt or lottery ticket when selling it, and that lottery
tickets were found in the SUV. The digital scale found in the SUV had the residue of two different
controlled substances on it; Investigator Khillah testified that it was unusual for a user to possess
other drugs than the one to which they were addicted, but that it was common for dealers to have
more than one type of controlled substance for sale. Investigator Khillah also testified that the
amount of methamphetamine found was a “distribution amount of crystal methamphetamine.” See
Hardiman, 466 Mich at 422; Fetterley, 229 Mich App at 518. In sum, the prosecution presented
sufficient evidence from which the jury could find beyond a reasonable doubt that defendant had
the intent to deliver methamphetamine.1 See Meissner, 294 Mich App at 452.
1
In his brief on appeal, defendant briefly states that he was “authorized by the renter” to use the
SUV and that no evidence was presented that defendant knew the SUV had been reported as stolen.
Defendant also states that there was no evidence that he “had any idea that he possessed ½ of a
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III. ADMISSION OF PHOTOGRAPHS
Defendant also argues that the trial court abused its discretion when it admitted
photographs showing the controlled substances seized from the SUV next to mail reflecting his
name. We disagree.
“This Court reviews de novo both constitutional claims and any preliminary questions of
law regarding admissibility of evidence.” People v Duenaz, 306 Mich App 85, 90; 854 NW2d 531
(2014). We review for an abuse of discretion a trial court’s decision to admit photographic
evidence. People v Anderson, 209 Mich App 527, 536; 531 NW2d 780 (1995). An abuse of
discretion occurs when the trial court’s decision falls outside the range of reasonable and principled
outcomes. People v Lewis, 302 Mich App 338, 341; 839 NW2d 37 (2013). Reversal is only
required when the defendant has shown that “it is more probable than not that the error was
outcome determinative.” People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999).
“The decision to admit or exclude photographs is within the sole discretion of the trial
court.” People v Mills, 450 Mich 61, 76; 537 NW2d 909 (1995). Photographs may be used to
corroborate witnesses’ testimonies and “are not excludable simply because a witness can orally
testify about the information contained in the photographs.” Id.Under MRE 401, relevant evidence is evidence that has “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.” Relevant evidence is generally admissible,
MRE 402, but the trial court may exclude even relevant evidence if its “probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
very small pill in the door of the vehicle.” To the extent that these statements are arguments
concerning the sufficiency of the evidence in support of his UDAA and possession of oxycodone
convictions, we note that defendant did not present these issues in his statement of issues presented.
See MCR 7.212(C)(5); People v Anderson, 284 Mich App 11, 16; 772 NW2d 792 (2009). Further,
defendant has not supported his factual statements with any citation to the record or his legal
arguments with any citation to authority, and has therefore abandoned them. People v Payne, 285
Mich App 181, 195; 774 NW2d 714 (2009); People v Petri, 279 Mich App 407, 413; 760 NW2d
882 (2008). In any event, the evidence presented at trial was sufficient for a reasonable jury to
conclude that he possessed the oxycodone found in the SUV, for the same reasons as supported
the conviction for possession with intent to deliver methamphetamine. And the evidence at trial
showed that: defendant was in possession of the SUV nearly two months after it was reported
stolen; the SUV contained rental documents showing that it had been rented to a person other than
defendant; the renter had reported the SUV stolen; defendant denied ownership of the SUV to
police officers and initially gave them a false name; and defendant provided no evidence that he
believed he had the permission of either the renter or the rental company to use the SUV. Although
defendant challenges the strength of this evidence, we do not interfere with the jury’s prerogative
to determine the weight of evidence or credibility of witnesses. Kanaan, 278 Mich App at 619.
Under these circumstances, a reasonable jury could conclude beyond a reasonable doubt that
defendant was guilty of UDAA. See People v Hendricks, 200 Mich App 68, 71; 503 NW2d 689
(2003); Meissner, 294 Mich App at 452.
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the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” MRE 403. See also People v Feezel, 486 Mich 184, 198; 783 NW2d 67 (2010). Unfair
prejudice exists when a jury will give minimally probative evidence undue weight, or when it
would be otherwise inequitable to admit the evidence. People v Blackston, 481 Mich 451, 462;
751 NW2d 408 (2008). However, prejudice requires more than that the evidence is merely
damaging to a party’s case; a party’s case “is always damaged by evidence that the facts are
contrary to his contentions, but that cannot be grounds for exclusion.” People v Vasher, 449 Mich
494, 501; 537 NW2d 168 (1995). “The determination of whether the probative value of evidence
is substantially outweighed by its prejudicial effect is best left to a contemporaneous assessment
of the presentation, credibility, and effect of the testimony.” People v Waclawski, 286 Mich App
634, 670; 780 NW2d 321 (2009). Photographs are properly excluded if they are solely used to
“ ‘arouse the sympathies or prejudices of the jury . . . particularly if they are not substantially
necessary or instructive to show material facts or conditions.’ ” People v Eddington, 387 Mich
551, 562; 198 NW2d 297, quoting 29 Am Jur 2d, Evidence, § 787, pp 860-861.
In this case, the trial court did not abuse its discretion when it admitted the challenged
photographs. See Anderson, 209 Mich App at 536. Defendant argues that “juxtaposition of the
drugs next to [defendant]’s mail was highly prejudicial, cumulative and should not have been
admitted” because it caused “subliminal confusion.” However, two of the photographs were
specifically relevant to the consideration of whether defendant had the intent to distribute the
methamphetamine, as they clearly showed the methamphetamine’s packaging. Moreover,
although the mail was visible in the background, defendant’s name was not visible. See People v
Gayheart, 285 Mich App 202, 227; 776 NW2d 330 (2009). Therefore, the probative value was
not substantially outweighed by the danger of unfair prejudice and the trial court did not abuse its
discretion by admitting them. See Anderson, 209 Mich App at 536.
The third photograph presents a closer question. The photograph again showed the
methamphetamine next to defendant’s mail, this time with his name clearly visible. Sergeant
Ferguson testified that the officers took a picture of the mail to identify the evidence, but he was
not sure why they put the mail next to the drugs for the photographs, and he specifically testified
that the exhibit did not show where the items were found. Other exhibits showed where the items
were located and one photograph showed the mail alone, serving the purpose of identifying it
without combining it with any other evidence. Therefore, the photograph of the methamphetamine
with the mail was cumulative of other exhibits that captured the scene and evidence; moreover,
the inclusion of this photograph could have suggested that the items were found in the same
location in the SUV, which they were not. See People v Collier, 168 Mich App 687, 692; 425
NW2d 118 (1988).
On balance, even if this photograph did present a risk of unfair prejudice, we find that the
probative value of the photograph was not substantially outweighed by that risk. Of all the
photographs admitted into evidence, this photograph most clearly shows that the
methamphetamine was packaged in a bag containing smaller, individual packages of
methamphetamine, which was an instructive illustration for jurors unfamiliar with the packaging
of controlled substances. See Anderson, 209 Mich App at 536. Therefore, this information was
probative of whether defendant had intent to deliver methamphetamine. See Gayheart, 285 Mich
App at 227. Further, Officer Resseguie’s testimony reduced the risk of unfair prejudice; he
testified that it was common to gather evidence together for purposes of a photograph, as well as
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to photograph the evidence where it was found, and he also clearly testified about where the
various items were originally found. The jurors also viewed photographs showing the mail and
substances in their original locations.
We conclude that the trial court did not abuse its discretion by admitting any of challenged
photographs. See Anderson, 209 Mich App at 536.
Affirmed.
/s/ Amy Ronayne Krause
/s/ Jane M. Beckering
/s/ Mark T. Boonstra
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