                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    May 26, 2016
               Plaintiff-Appellee,

v                                                                   No. 324710
                                                                    Macomb Circuit Court
ALBERT DWAYNE ALLEN,                                                LC No. 2014-001488-FH

               Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

v                                                                   No. 324711
                                                                    Macomb Circuit Court
ALBERT DWAYNE ALLEN,                                                LC No. 2014-001016-FH

               Defendant-Appellant.


Before: GADOLA, P.J., and SERVITTO and SHAPIRO, JJ.

PER CURIAM.

       In these consolidated cases, defendant was convicted of delivering hydrocodone, MCL
333.7401(2)(b)(ii), possession with intent to deliver hydrocodone, MCL 333.7401(2)(b)(ii),
possession of marijuana, MCL 333.7403(2)(d), and maintaining a drug house, MCL
333.7405(1)(d). For the reasons stated in this opinion, we affirm.

        On February 14, 2014, defendant sold 31 hydrocodone pills to an undercover police
officer. The sale occurred outside defendant’s home. Thereafter, undercover officers from the
special investigations division (SID) conducted surveillance of the home. According to their
testimony, on March 3, 2014, the surveillance officers observed what appeared to be three
separate drug transactions. In each instance, a suspected buyer stopped in front of defendant’s
house, and defendant emerged from the house and made a quick exchange with the suspected
buyer. Uniformed officers conducted a traffic stop on one of the suspected buyers and
discovered that she was in possession of several pills. The suspected buyer testified at trial that
she had just purchased 16 Vicodin (hydrocodone) pills from defendant. After the traffic stop, the


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police executed a search warrant at defendant’s home. The record reflects that, during the
search, the police found marijuana, numerous pills in a variety of different places, pill bottles,
and several unused zip-seal plastic baggies.

        Although defendant did not testify, his wife and stepdaughter testified on his behalf. His
wife testified that defendant was with her and several others on February 14, 2014, when the
alleged sale to the undercover officer occurred. His stepdaughter testified that defendant was not
at home between 7:00 p.m. and 11:00 p.m. that night. Additionally, defendant’s wife testified
that the pill bottles in the house belonged to her and that she had a prescription for them. She
also testified that some of the pills found belonged to a tenant living in their home.

       Defendant argues that his convictions were against the great weight of the evidence.1 We
disagree.

       In evaluating whether a verdict is against the great weight of the evidence, the question is
whether the evidence preponderates so heavily against the verdict that it would be a serious
miscarriage of justice to allow the verdict to stand. People v Lemmon, 456 Mich 625, 642, 647;
576 NW2d 129 (1998). Defendant essentially argues that the jury should have believed his wife
and his stepdaughter. However, conflicting testimony and questions regarding the credibility of
witnesses are not sufficient grounds for granting a new trial. Id. at 643.

        The jury heard the testimony that defendant was not home on February 14. They also
heard from defendant’s wife’s testimony that he did not sell drugs, that their tenant owned the
jackets where some pills were found, and that defendant’s wife owned the other pills. Defense
counsel questioned the police officers about their vantage points on the night of February 14,
emphasized that defendant’s wife’s name was on pill bottles found in the house, and questioned
the propriety of the police investigation. Further, although defendant presented an alibi defense
for the February 14 sale to an undercover officer, two SID police officers identified defendant as
the individual who sold the hydrocodone pills to the officer. They also testified that the drug
transaction occurred outside defendant’s house. “The credibility of identification testimony is a
question for the trier of fact that we do not resolve anew.” People v Davis, 241 Mich App 697,
700; 617 NW2d 381 (2000). We defer to the jury’s determination of credibility “unless it can be
said that directly contradictory testimony was so far impeached that it ‘was deprived of all
probative value or that the jury could not believe it,’ or contradicted indisputable physical facts
or defied physical realities[.]” Lemmon, 456 Mich at 644-646 (internal citation omitted).
Accordingly, the trial court did not abuse its discretion in denying defendant’s motion for a new
trial.




1
 We review the trial court’s decision denying defendant’s motion for a new trial for an abuse of
discretion. People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). A trial court abuses its
discretion “when its decision falls outside the range of principled outcomes.” People v
Nicholson, 297 Mich App 191, 196; 822 NW2d 284 (2012).




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       Defendant next argues that the prosecutor failed to present sufficient evidence to support
his convictions of possession with intent to deliver hydrocodone, possession of marijuana, and
maintaining a drug house because there was no credible evidence that he possessed any of the
drugs found in the house or that he intended to deliver the hydrocodone.2 We disagree.

       Proof of physical possession is unnecessary. People v Konrad, 449 Mich 263, 271; 536
NW2d 517 (1995). Possession may be either actual or constructive, and it may be joint or
exclusive. People v Wolfe, 440 Mich 508, 519-520; 489 NW2d 748 (1992). “Constructive
possession exists when the totality of the circumstances indicates a sufficient nexus between the
defendant and the contraband.” Id. at 521. “[A] person’s presence, by itself, at a location where
drugs are found is insufficient to prove constructive possession.” Id. at 520. “Instead, some
additional connection between the defendant and the contraband must be shown.” Id.

        Viewed in a light most favorable to the prosecution, the circumstantial evidence
established a sufficient nexus between defendant and the contraband discovered in his home.
Defendant does not dispute that he lived in the house where the contraband was found. There
was evidence that, approximately two weeks before the house was searched, defendant sold
hydrocodone to an undercover officer outside his residence. During the subsequent surveillance,
SID officers observed defendant emerge from his house and engage in what, based on their
experience and training, appeared to be three separate drug transactions. One suspected buyer
was stopped. She testified that she had purchased the hydrocodone pills found on her from
defendant. During the search of defendant’s house, which occurred within hours of that sale, the
police found numerous pills in a variety of places in the house, 11.5 grams of marijuana, pill
bottles, and unused zip-seal plastic baggies. Additional pills were found on defendant when he
was arrested. Taken together, the evidence was sufficient to enable the jury to find beyond a
reasonable doubt that defendant had possession of the contraband in his house. Although
defendant relies on his wife’s testimony, credibility decisions are for the jury to determine.
Lemmon, 456 Mich at 642. There was sufficient evidence to support the jury’s conclusion that
defendant possessed the drugs in his house.

         There is also sufficient evidence to show intent to deliver. Proof of actual delivery is not
required. Wolfe, 440 Mich at 524. “Intent to deliver has been inferred from the quantity of
narcotics in a defendant’s possession, from the way in which those narcotics are packaged, and
from other circumstances surrounding the arrest.” Id. Here, the police discovered numerous
pills, pill bottles, and unused zip-seal plastic baggies inside defendant’s house. Two SID officers


2
  When ascertaining whether sufficient evidence was presented at trial to support a conviction,
we view the evidence in a light most favorable to the prosecution to determine whether a rational
trier of fact could find that the essential elements of the crime were proven beyond a reasonable
doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992). Circumstantial evidence and
reasonable inferences arising from the evidence can constitute satisfactory proof of the elements
of the crime. People v Truong (After Remand), 218 Mich App 325, 337; 553 NW2d 692 (1996).
“[A] reviewing court is required to 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).




                                                -3-
testified that, based on their training and experience in narcotics trafficking, the zip-seal baggies
and pill bottles are used to hold the designated amount of pills, and those types of baggies are
indicative of narcotic sales. There was also evidence that defendant had sold 31 hydrocodone
pills to an undercover officer and 16 Vicodin (hydrocodone) pills to a different buyer shortly
before the search of his home. Viewed in a light most favorable to the prosecution, the
circumstantial evidence was sufficient to establish that the hydrocodone in defendant’s home was
intended for delivery.

       Defendant also argues that the prosecutor engaged in misconduct when he asked
defendant’s wife to comment on the credibility of a police officer, suggested that defense counsel
was seeking to mislead the jury, and improperly appealed to the jury’s sympathy during closing
argument.3 We disagree.

       During the prosecutor’s case-in-chief, a police officer testified that he had previously
observed defendant wearing one of the jackets in which pills were found. On direct examination,
defendant’s wife testified that the jackets belonged to their tenant. During cross-examination of
defendant’s wife, the prosecutor asked, “If an officer has testified that he has seen your husband
wearing that coat recently, in the last year and-a-half, are you saying that that officer is lying?”
Defendant’s wife answered, “yes.”

        Defendant correctly points out that it is improper for the prosecutor to ask a witness to
comment on the credibility of another witness because credibility is a determination for the trier
of fact. People v Buckey, 424 Mich 1, 17; 378 NW2d 432 (1985). In Buckey, our Supreme
Court noted that this type of error is harmless where the witness “dealt rather well with the
questions,” and it is not clear how the questioning harmed the defendant. Id. In this case, there
is nothing in the record that suggests defendant was harmed by the prosecutor’s isolated
question. Further, regardless of who supposedly owned the jackets, several pills were found in
other locations in the house, and defendant was observed engaging in drug transactions. It was
apparent throughout the trial that the defense witnesses and the prosecution witnesses gave
conflicting testimony. Thus, the jury was aware that the parties disagreed on crucial facts at
issue. Finally, the trial court instructed the jury that it was to assess the credibility of the
witnesses and determine who to believe. Accordingly, reversal is not warranted based on the
prosecutor’s questioning of defendant’s wife.

       Defendant also argues that the prosecutor’s use of the phrase “smoke and mirrors” during
closing argument suggested that his attorney was intentionally seeking to mislead the jury.
Although a prosecutor may not suggest that defense counsel is intentionally attempting to
mislead the jury, People v Dalessandro, 165 Mich App 569, 580; 419 NW2d 609 (1988), a
“prosecutor may fairly respond to an issue raised by the defendant.” People v Brown, 279 Mich


3
  This Court reviews de novo issues of prosecutorial misconduct to determine whether the
defendant was denied a fair and impartial trial. People v Bennett, 290 Mich App 465, 475; 802
NW2d 627 (2010).




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App 116, 135; 755 NW2d 664 (2008). Prosecutors may argue the evidence and all reasonable
inferences that arise from the evidence as they relate to their theory of the case. People v
Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). They need not state their inferences in “the
blandest possible terms.” People v Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007).

       The prosecutor argued:

               Specifically, as far as the smoke and mirrors that in this case was brought
       out, if you look at the testimony of Officer Roy, he came in and testified I found
       the mail in the back room. The defense attorney wanted to make a big deal that
       the evidence tech took the pictures of those resident’s papers in the other
       bedroom, but the officers told you, that wasn’t the case. So as far as an indication
       of the police trying to set something up, or make this out to be something more,
       the officer told you, Officer Roy said no, those, that’s not where those envelopes
       were. In addition, that’s not where the tin or the heroin was located, that’s not
       where that was either, it’s just where it was photographed. [Emphasis added.]

Viewed in context, the prosecutor’s comments did not suggest that counsel was trying to mislead
the jury. Defense counsel had elicited from an officer that mail addressed to defendant was
found in a room in the rear of the house, but was brought to a detective in another room for
tabulation. It was then photographed by the evidence technician on the floor of the northwest
bedroom, which was a room where drugs were discovered. Defense counsel asked the officer,
“So the mail was moved from the back room to try to connect these individuals to the drugs in
that room, was it not.” The prosecutor’s comments were responsive to that line of questioning,
and it was based on reasonable inferences from the evidence. The use of the phrase “smoke and
mirrors” did not in and of itself make the argument improper and does not mandate reversal in
this case.

        Defendant next argues that during rebuttal argument, the prosecutor improperly appealed
to the jury’s sympathy and “general fear of crime” when he made the following comments:

               [The police] did an investigation. They did, they set up a hand-to-hand.
       It’s not as though they came in and said, yeah, it looks like a drug trafficking
       house, it was very busy, you know, it appeared—we didn’t see the drugs, we
       didn’t seize any drugs, but it looked like it, and when we got the search warrant,
       based on just watching what appeared to be hand-to-hands, we, they looked like
       drugs. No. This was a thorough investigation.

                                             * * *

              As far as the testimony, you’ve seen it. You will have the opportunity to
       review all of the evidence, all the pills that we have given you that are sealed.
       You can look at them. You can think about the testimony of each of the
       individuals, share your opinion with one another. When you’re thinking about it,
       use your common sense.

              When you’re living next to somebody that has multiple hand-to-hands, and
       you call the police, and you do an anonymous tip, what do you expect the police


                                               -5-
       to do? Would you expect them to do an investigation just like this one if this was
       going on in the house next-door to you. I believe that after you think about this
       and after you weigh out the testimony and after you look at the evidence, you
       will, in fact, feel that, just like [a detective] said, this was a full, fair investigation.
       [Emphasis added.]

        Although prosecutors may not resort to arguments that ask jurors to sympathize with the
victim, People v Watson, 245 Mich App 572, 591; 629 NW2d 411 (2001), in this case the
prosecutor did not ask the jury to convict defendant based on emotions or sympathy. Viewed in
context, the prosecutor made a permissible argument responding to defendant’s argument that
the police did not give defendant “a fair, full and complete investigation.” The prosecutor’s
argument, which urged the jurors to use their common sense in evaluating how the police
handled its investigation, was not improper. Moreover, a timely objection to the challenged
remarks could have cured any perceived prejudice by obtaining an appropriate cautionary
instruction. See id. at 586. The prosecutor’s comments during rebuttal argument were not
grounds for reversal.

        Finally, defendant argues that defense counsel was ineffective for failing to move to
dismiss the possession of marijuana charge under the Michigan Medical Marihuana Act, MCL
333.26421 et seq., because defendant obtained a medical marijuana card. However, it is
undisputed that defendant did not obtain his medical marijuana card until after the charged
conduct occurred. Accordingly, any motion to dismiss the marijuana charge would have been
futile. Counsel is not ineffective for failing to advance a meritless position. People v Ericksen,
288 Mich App 192, 201; 793 NW2d 120 (2010). We also reject defendant’s suggestion that
defense counsel was ineffective for failing to use the medical marijuana registry card as part of
his defense strategy. Despite being aware of the card’s existence, defense counsel opted to argue
that the marijuana in the house did not belong to defendant. He also challenged the propriety of
the police investigation. Decisions about what evidence to present are matters of trial strategy,
People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999), and “this Court will not second-
guess defense counsel’s judgment on matters of trial strategy.” People v Benton, 294 Mich App
191, 203; 817 NW2d 599 (2011).

       Affirmed.



                                                                 /s/ Michael F. Gadola
                                                                 /s/ Deborah A. Servitto
                                                                 /s/ Douglas B. Shapiro




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