            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    February 27, 2020
               Plaintiff-Appellee,

v                                                                   No. 344527
                                                                    Shiawassee Circuit Court
DAVID MICHAEL MORENCE,                                              LC No. 2018-002420-FH

               Defendant-Appellant.


Before: BORRELLO, P.J., and METER and RIORDAN, JJ.

PER CURIAM.

      Defendant appeals by right his jury-trial conviction of possession with intent to deliver
methamphetamine, MCL 333.7401. We affirm.

                                       I. BACKGROUND

        Defendants’ conviction results from his intended drug trafficking. About January 2018,
defendant and his codefendant, Nancy Jo Spencer, came under suspicion of narcotics activity and
were being investigated by MAGNET, a narcotics task force. On the evening of January 30, 2018,
MAGNET officers were surveilling a home occupied by defendant and Spencer and observed the
codefendants leave the home and drive in the direction of Flint, returning approximately one hour
later. The trip was consistent with making a quick stop in Flint and then returning.

        During the return trip, Michigan State Trooper Dennis McGuckin pulled over defendant
and Spencer, indicating that his reason for doing so was a defective tail light. Trooper McGuckin
noticed that the codefendants made frequent, suspicious movements. When Trooper McGuckin
questioned the codefendants about their travel, they provided various, differing answers. At one
point, defendant indicated that he and Spencer were returning from a pawn shop “at the corner of
M-21 and Court Street.” The parties do not dispute that there exists no pawn shop at that location;
however, defendant argues that there is a pawn shop in that general vicinity. Eventually, several
MAGNET members arrived on the scene to search the vehicle. The search returned a bag
containing roughly an ounce of methamphetamine in the passenger door and a second bag
containing roughly half of a gram of methamphetamine in Spencer’s purse. MAGNET Detective



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Matthew Fray testified that the ounce of methamphetamine would typically sell for between
$2,500 and $3,000.

        The codefendants were each charged with possessing methamphetamine with the intent to
deliver. Per a plea deal, Spencer was convicted of one count of possession of methamphetamine.
Defendant entered a plea of not guilty. During trial, the prosecution sought to admit 258 pages of
text-message data extracted from Spencer’s cell phone which tended to implicate Spencer and
defendant in drug trafficking. The prosecution argued that these statements were admissible as
either nonhearsay statements or as party-opponent coconspirator statements under MRE
801(d)(2)(E). The trial court allowed the admission of the exhibit, finding that the statements
made by Spencer were admissible under MRE 801(d)(2)(E) and that the third-party statements
were otherwise not hearsay and were therefore admissible.

       The jury found defendant guilty of possessing methamphetamine with the intent to deliver.
At defendant’s sentencing hearing, the trial court assessed ten points under offense variable (OV)
19, indicating that defendant had interfered with the administration of justice by giving a false
statement to Trooper McGuckin. The trial court sentenced defendant as a fourth-offense habitual
offender, MCL 769.12, to 260 to 500 months of imprisonment, which represented the upper limit
of defendant’s sentencing-guidelines range. This appeal followed.

                                          II. ANALYSIS

                                 A. HEARSAY STATEMENTS

        Defendant first argues that the trial court erred by admitting the text messages extracted
from Spencer’s cell phone into evidence. According to defendant, the text messages were
inadmissible hearsay and were unduly prejudicial and their admission violated his constitutional
confrontation right. We disagree. “[W]e review a trial court’s decision to admit evidence for an
abuse of discretion, but review de novo preliminary questions of law, such as whether a rule of
evidence precludes admissibility.” People v Chelmicki, 305 Mich App 58, 62; 850 NW2d 612
(2014).

        Hearsay is “a statement, other than the one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).
Hearsay is generally inadmissible except as provided by the rules of evidence. MRE 802. A
statement against a party is not hearsay, however, despite conforming to the general definition
provided by MRE 801(c), if it is made “by a coconspirator of a party during the course and in
furtherance of the conspiracy on independent proof of the conspiracy.” MRE 801(d)(2)(E). To
qualify as nonhearsay under MRE 801(d)(2)(E), the proponent of the statement must show that it
satisfies three requirements:

       First, the proponent must establish by a preponderance of the evidence that a
       conspiracy existed through independent evidence. A conspiracy exists where two
       or more persons combine with the intent to accomplish an illegal objective. It is
       not necessary to offer direct proof of the conspiracy. Instead, it is sufficient if the
       circumstances, acts, and conduct of the parties establish an agreement in fact.
       Circumstantial evidence and inference may be used to establish the existence of the

                                                -2-
       conspiracy. Second, the proponent must establish that the statement was made
       during the course of the conspiracy. The conspiracy continues until the common
       enterprise has been fully completed, abandoned, or terminated. Third, the
       proponent must establish that the statement furthered the conspiracy. The
       requirement that the statement further the conspiracy has been construed broadly.
       Although idle chatter will not satisfy this requirement, statements that prompt the
       listener, who need not be one of the conspirators, to respond in a way that promotes
       or facilitates the accomplishment of the illegal objective will suffice. [People v
       Martin, 271 Mich App 280, 316-317; 721 NW2d 815 (2006) (internal citations and
       quotation marks omitted).]

        Regarding the first requirement, in making her plea, Spencer indicated that she and
defendant drove to Flint to purchase methamphetamine. The trip took only an hour, which would
be consistent with a prearranged pickup.        According to Spencer, she purchased the
methamphetamine for $625; yet, Trooper McGuckin testified that the ounce of methamphetamine
would sell for between $2,500 and $3,000. The disparity between purchase price and sale value
is evidence of a wholesale purchase made for the purpose of further packaging and distribution.
Accordingly, a preponderance of the evidence supported that defendant and Spencer engaged in a
conspiracy to purchase and sell methamphetamine.

        Concerning the second requirement, defendant argues that the text-message statements
were not made during the course of the conspiracy, particularly the statements Spencer made
before the alleged commission of the instant crime. We disagree. “To satisfy the ‘during the
course’ aspect of the exception, the conspiracy must be extant at the time the statement is made.
The phrase relates to the temporal dimension of the conspiracy, which continues until the common
enterprise has been fully completed, abandoned, or terminated.” People v Bushard, 444 Mich 384,
394; 508 NW2d 745 (1993). In making this argument, defendant appears to imply that any
conspiracy did not exist until the night of the instant offense. The messages, however, indicate
that the possession at issue was just one instance in defendant and Spencer’s ongoing scheme to
traffic methamphetamine. Spencer’s prior relationship with the apparent wholesaler of the
substance, MAGNETS’ involvement with defendant and Spencer, and the fact that defendant and
Spencer obtained a distributable quantity of methamphetamine in the apparent span of an hour also
imply a broader conspiracy. In short, given the evidence produced in this case, it is illogical to
conclude that the conspiracy to purchase and distribute methamphetamine started and ended on
the night of the arrest.

        Finally, defendant argues that the statements were too vague to further a conspiracy and
amounted to nothing more than idle chatter. Per our review of the messages, there is no doubt that
drug trafficking is being discussed. The messages refer to the sale of substances in grams, to the
cutting of substances, and to the quality of substances, among other similarly suspicious
references. Several statements use the term “we” in conjunction with apparent sales. There is
simply nothing in the record that would lead us to a finding that Spencer sent these messages for
anything other than to further the distribution conspiracy. Accordingly, the trial court did not err
by concluding that Spencer’s statements in the messages were not hearsay pursuant to MRE
801(d)(2)(E).



                                                -3-
        Turning to whether the text-message statements made by third parties were properly
admitted, we conclude that defendant has abandoned this argument because he has failed to
provide any particularized challenge to the statements. The entirely of the exhibit contains 258
pages of extracted cell phone data, and the specific excerpts provided to this Court contain 17
pages of text messages exchanged between Spencer and various third parties. Defendant’s brief
references only a few third-party statements and does so in the context of his argument under MRE
801(d)(2)(E). Defendant has failed to provide any particularized argument regarding how the trial
court erred in concluding that the third-party statements were not hearsay under the general hearsay
definition. A defendant may not simply “announce a position or assert an error and then leave it
up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for
him his arguments, and then search for authority either to sustain or reject his position.” People v
Kevorkian, 248 Mich App 373, 389; 639 NW2d 291 (2001) (internal citation and block notation
omitted). Accordingly, we decline to address this argument.

        Defendant also argues that admission of the text-message statements violated his
constitutional right to confront and cross-examine witnesses. We disagree. The Confrontation
Clause applies only to “testimonial” statements used as substantive evidence in a criminal
prosecution. People v Nunley, 491 Mich 686, 697-698; 821 NW2d 642 (2012) (quotation marks
and citation omitted). “While nontestimonial statements are subject to traditional rules limiting
the admissibility of hearsay, they do not implicate the Confrontation Clause.” People v Taylor,
482 Mich 368, 377; 759 NW2d 361 (2008). Statements are testimonial when they are intended
“to establish or prove past events potentially relevant to later criminal prosecution.” Id. at 377-
378 (internal citation and quotation marks omitted). There is nothing in the challenged exhibit
which would cause this Court to believe that the declarants made the statements intending to create
any record for a subsequent criminal prosecution; rather, the clear intent of the statements appears
to be the furtherance of drug transactions. The statements do not violate the Confrontation Clause.

        Next, defendant argues that the text messages should have been precluded as unduly
prejudicial under MRE 403. “Exclusion is required under MRE 403 when the danger of unfair
prejudice substantially outweighs the probative value of the evidence.” People v Brown, 326 Mich
App 185, 192; 926 NW2d 879 (2018) (internal citation and quotation marks omitted). In this case,
defendant was charged with possession with intent to deliver methamphetamine, MCL
333.7401(2)(b)(i). The messages tended to show that defendant and Spencer had an established
drug-trafficking operation and were admitted to show that defendant possessed the
methamphetamine with the intent to deliver it. These statements were highly probative on this
issue, particularly because several messages implicated defendant as a supplier of the drug to third
parties. Defendant has shown no relevant prejudicial concern in these messages which would
outweigh their probative value on the issue of intent. In short, because the messages were highly
probative on an element of the crime, MRE 403 did not require their exclusion.

        Because we reject defendant’s substantive arguments regarding the admission of the text
messages, we also reject defendant’s argument that his trial counsel provided ineffective assistance
by failing to raise adequate objections to the evidence. People v Sabin (On Second Remand), 242
Mich App 656, 660; 620 NW2d 19 (2000).




                                                -4-
                                              B. OV 19

        Defendant argues that the trial court improperly scored OV 19 at 10 points. The proper
interpretation and application of the sentencing guidelines is a legal question that this Court
reviews de novo. People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004). “Under the
sentencing guidelines, the circuit court’s factual determinations are reviewed for clear error and
must be supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835
NW2d 340 (2013). “Clear error exists when the reviewing court is left with a definite and firm
conviction that a mistake was made.” People v Lampe, 327 Mich App 104, 111; 933 NW2d 314
(2019) (internal citation and quotation marks omitted). “Whether the facts, as found, are adequate
to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law,
is a question of statutory interpretation which an appellate court reviews de novo.” Hardy, 494
Mich at 438.

        MCL 777.49(c) directs trial courts to assess 10 points under OV 19 if the defendant
“interfered with or attempted to interfere with the administration of justice.” “Attempting to
deceive the police during an investigation” constitutes interference with the administration of
justice. People v Hershey, 303 Mich App 330, 344; 844 NW2d 127 (2013). Defendant argues
that a preponderance of the evidence did not show that he attempted to deceive the police. We
disagree. When Trooper McGuckin asked defendant where he was traveling from, defendant
provided several inconsistent answers, including saying that he was at a pawn shop that did not
exist at the stated location. Defendant’s coconspirator also provided inconsistent statements.
When viewed in light of the other evidence, particularly the fact that defendant and Spencer made
a stop-and-return trip to Flint, had a distributable amount of methamphetamine in their possession,
and were actively engaged in drug trafficking, we cannot disagree with the trial court that it is
more likely than not that defendant offered Trooper McGuckin a false location to hide the fact that
he was in Flint to procure methamphetamine. The trial court properly scored OV 19 at ten points.

                                     C. PROPORTIONALITY

        Finally, defendant argues that his 260-month minimum sentence, which represents the top
of defendant’s sentencing-guidelines range of 78 to 260 months, violates the principle of
proportionality set forth People v Milbourn, 435 Mich 630, 651; 461 NW2d 1 (1990) and
reaffirmed in Lockridge, 498 Mich 358, 391-392; 870 NW2d 502 and People v Steanhouse, 500
Mich 453, 474; 902 NW2d 327 (2017). As already noted, however, defendant’s sentence falls
within the appropriate sentencing-guidelines range. Despite any inclination we may have to
review defendant’s sentence for reasonableness, our Supreme Court has directed—by way of
declining leave to appeal in People v Ames, unpublished opinion of the Court of Appeals issued
August 10, 2017 (Docket No. 333239), see People v Ames, 504 Mich 899; 929 NW2d 283
(2019)—that sentences falling within the sentencing-guidelines range must be affirmed on appeal
“unless there was an error in scoring or the trial court relied on inaccurate information.” People v
Schrauben, 314 Mich App 181, 196; 886 NW2d 173, 181 (2016); see also MCL 769.34(10).
Because defendant has failed to show that the trial court erred in scoring the sentencing guidelines
or relied on any inaccurate information when sentencing defendant, we must affirm his within-
guidelines sentence. Moreover, given Ames, 504 Mich 899, we reject defendant’s argument that


                                                 -5-
his trial counsel was ineffective for failing to raise the proportionality issue at sentencing. Sabin,
242 Mich App at 660.

       Affirmed.



                                                              /s/ Stephen L. Borrello
                                                              /s/ Patrick M. Meter
                                                              /s/ Michael J. Riordan




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