                         STATE OF MICHIGAN

                          COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  May 29, 2018
              Plaintiff-Appellee,

v                                                                 No. 338377
                                                                  Wexford Circuit Court
GARY EDWARD STORIE,                                               LC No. 2016-011798-FH

              Defendant-Appellant.


Before: METER, P.J., and GADOLA and TUKEL, JJ.

PER CURIAM.

       Defendant appeals by right his jury trial convictions of owning or possessing chemical or
laboratory equipment for the manufacture of methamphetamine, MCL 333.7401c(1)(b),
possessing methamphetamine, MCL 333.7403(2)(b)(i), and operating a motor vehicle with a
suspended license, MCL 257.904(1). Defendant was sentenced as a fourth-habitual offender,
MCL 769.12, to concurrent prison terms of 48 to 360 months for the methamphetamine-related
convictions and 365 days for the operating with a suspended license conviction. We affirm.

         On December 13, 2016, Michigan State Police Trooper Misty Long-Birgy performed a
traffic stop when defendant ran a stop sign while driving a Ford Explorer. During the stop,
defendant admitted that he was driving with a suspended license. After Long-Birgy discovered
that defendant had several prior operating-with-a-suspended-license offenses, she placed
defendant under arrest and searched him incident to arrest. During the search, Long-Birgy
discovered several unused coffee filters, two used coffee filters with a white substance inside,
and a hollowed out pen with white residue inside of it. Long-Birgy testified that she knew that
coffee filters were often utilized in making methamphetamine, and Trooper Olivia Garlick
testified that pens are commonly used to ingest narcotics. When Long-Birgy discovered those
items, defendant said, “You got me.” At that time, Long-Birgy told defendant that he was under
arrest for the possession of suspected methamphetamine.

        Long-Birgy also searched the vehicle’s passenger, Amber Smith, and found an unused
coffee filter on her person. When Long-Birgy asked Smith to step out of the car, she noticed a
pair of tin snips in the passenger door, which Long-Birgy testified are commonly used to strip
batteries to use the lithium to produce methamphetamine. When troopers searched the vehicle,
they found several other components commonly used to make methamphetamine, including a
“one pot” reactionary vessel. Samples from the white substance found in the coffee filter and

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from the suspected “one pot” were sent to a forensics lab and tested positive for
methamphetamine.

       Smith was also charged in connection with this incident, but the charges were dropped
and she was given immunity in exchange for her testimony. She testified that she drove
defendant around to gather various components required to make methamphetamine and that she
witnessed defendant making methamphetamine on December 13, 2016, the date of the car stop.
Janice Franks, who was also granted immunity, testified that she bought Sudafed for defendant
on December 13 knowing that he would use it to make methamphetamine.

       Defendant was convicted as noted above, and this appeal followed.

                                 I. OTHER-ACTS EVIDENCE

        On appeal, defendant argues that the trial court abused its discretion in admitting other-
acts evidence under MRE 404(b) because the probative value of the evidence was substantially
outweighed by the risk of unfair prejudice and should have been excluded. We agree that the
other-acts evidence should not have been admitted but find that the error in its admission was
harmless.

       The trial court admitted other-acts evidence related to physical evidence that was
discovered in an abandoned blue Chevy truck on December 3, 2016. The physical evidence
consisted of components that were used in the production of methamphetamine. Smith and
another woman, Kimberly Franks,1 testified that defendant arrived at Kimberly’s home in a blue
truck on that date. After defendant and Kimberly got into an argument, defendant left in the
truck. Defendant returned later that day with no truck and told Smith and Kimberly that his truck
had gotten stuck and he “ditched” it. Trooper Long-Birgy testified that she had searched an
abandoned blue Chevy truck located near Kimberly’s home on December 3, 2016, and
discovered components used in the production of methamphetamine, including a cutoff bottle, a
gas generator, and lithium batteries, as well as a hypodermic needle with fluid in it that later
tested positive for methamphetamine. Long-Birgy also found receipts and registrations with
various names on them. One receipt had defendant’s name and the truck’s license plate number
on it.

        After the prosecution filed a notice to admit other-acts evidence, defendant filed a motion
in limine to suppress that evidence. The trial court ruled that the physical evidence discovered
on December 3 and the testimony of Kimberly and Smith linking defendant to the blue truck
were admissible to establish knowledge and intent, which were required elements of the charges.

       We review for an abuse of discretion preserved objections to admission of other-acts
evidence. People v Orr, 275 Mich App 587, 588; 739 NW2d 385 (2007); People v McGhee, 268
Mich App 600, 609; 709 NW2d 595 (2005). “However, whether a rule or statute precludes


1
  Because Janice Franks and Kimberly Franks are related and share the same last name, we will
subsequently use their first names when we refer to them.


                                                -2-
admission of evidence is a preliminary question of law that this Court reviews de novo.” People
v Denson, 500 Mich 385, 396; 902 NW2d 306 (2017). A trial court abuses its discretion when it
selects an outcome that falls outside the range of reasonable and principled outcomes, Orr, 275
Mich App at 588-589, and it “necessarily abuses its discretion when it admits evidence that is
inadmissibile as a matter of law,” Denson, 500 Mich at 396, citing People v Lukity, 460 Mich
484, 488; 596 NW2d 607 (1999).

       Under MRE 404(b)(1), “[e]vidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity therewith.” However, such
evidence may be admissible for nonpropensity purposes, including “proof of motive,
opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or
absence of mistake or accident when the same is material.” MRE 404(b)(1). But “[b]efore
other-acts evidence may be introduced, the prosecution must satisfy a three-part test: (a) there
must be a reason for its admission other than to show character or propensity, (b) it must be
relevant, and (c) the danger of undue prejudice cannot substantially outweigh its probative value,
especially if there are other means of proof.” McGhee, 268 Mich App at 609; see also People v
VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994).

        “The first sentence of this rule represents the deeply rooted and unwavering principle that
other-acts evidence is inadmissible for propensity purposes.” Denson, 500 Mich at 397. “This
rule reflects the fear that a jury will convict a defendant on the basis of his or her allegedly bad
character rather than because he or she is guilty beyond a reasonable doubt of the crime
charged.” Id. The list of permissible purposes in MRE 404(b) is not exhaustive. People v Sabin
(After Remand), 463 Mich 43, 56; 614 NW2d 888 (2000). Indeed, a proper purpose simply is
one other than establishing a defendant’s character to show his propensity to commit the charged
offense. People v Johnigan, 265 Mich App 463, 465; 696 NW2d 724 (2005). Once the first two
prongs are satisfied, the third prong is merely a restatement of MRE 403. People v Starr, 457
Mich 490, 498; 577 NW2d 673 (1998). We give deference to the trial court’s MRE 403 analysis
because of its “contemporaneous assessment of the presentation, credibility, and effect of
testimony.” VanderVliet, 444 Mich at 81. The relevant portion of MRE 403 states that
“evidence may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice.” Evidence becomes unfairly prejudicial and should be excluded when “use of
the evidence would be inequitable or if there is a danger that the jury will give it undue or
preemptive weight.” People v Lane, 308 Mich App 38, 55; 862 NW2d 446 (2014). In a case
involving other-acts evidence under MRE 404(b), the court should also consider “[a]ny undue
prejudice that arises because the evidence also unavoidably reflects the defendant’s character”
when performing the balancing test under MRE 403. People v Jackson, 498 Mich 246, 259-260;
869 NW2d 253 (2015).

       Here, one of the charges against defendant was a violation of MCL 333.7401c,
possession of laboratory equipment found on December 13, and one element of which required
the prosecution to prove that at the time defendant possessed the equipment, he “knows or had
reason to know” that it was to be used for the purpose of manufacturing a controlled substance.
Thus, the trial court correctly found that the first prong of MRE 404(b) was satisfied because
evidence relating to defendant’s knowledge of methamphetamine manufacturing and intent to
engage in such manufacturing was relevant.


                                                -3-
        Once the first prong of MRE 404(b) is satisfied, however, “the prosecution must also
explain how the evidence is relevant to that purpose without relying on a propensity inference.”
Denson, 500 Mich at 402 (emphasis in original). Defendant was charged in a series of
interrelated offenses involving possession of methamphetamine and possession of laboratory
equipment for the purpose of manufacturing of methamphetamine. The physical evidence from
the blue truck should have been ruled inadmissible because if the evidence relating to December
13 was believed, there could have been no doubt that defendant knew how to manufacture
methamphetamine because that evidence showed that he had done so. Admitting evidence that
he possessed laboratory equipment on December 3 which he “had reason to know” was to be
used for producing methamphetamine stood on its head the normal cycle of how other-acts
evidence is supposed to work. Rather than the other-acts evidence from the blue truck being
used to illustrate defendant’s mens rea for the charged offenses, the opposite was true—
defendant’s mens rea for the charged offenses was used to prove why he had possessed the
laboratory equipment in the blue truck. Such an inversion of the use of other-acts evidence thus
was improper because it merely constituted propensity evidence that defendant manufactured or
intended to manufacture methamphetamine on another, uncharged occasion.

         Thus, for example, Amber Smith testified that she directly observed defendant cooking
methamphetamine on December 13, the date of the charged offenses. She also testified that she
saw defendant driving the blue pickup truck on December 3. Janice Franks also testified that she
saw defendant cook methamphetamine on December 13, when she purchased Sudafed for him
for that purpose. And Trooper Long-Birgy found several items related to manufacturing
methamphetamine on defendant’s person after she arrested him on December 13, such as coffee
filters. The mens rea required to convict requires that a defendant “knows or has reason to
know” that the laboratory equipment was to be used for manufacturing a controlled substance.
While the other-acts evidence certainly could show what defendant “had reason to know,” that is,
how the laboratory equipment could be used to manufacture methamphetamine, the evidence in
this case demonstrated that as of December 13 he actually knew how to manufacture. Under the
circumstances presented here, his actual knowledge made any evidence as to what he “had
reason to know” irrelevant and unduly prejudicial, in that the evidence necessarily related to
other uncharged drug crimes. See McGhee, 268 Mich App at 609 (emphasis added) (stating that
the third prong under MRE 404(b) requires a consideration of whether the danger of undue
prejudice substantially outweighs the probative value of evidence, “especially if there are other
means of proof”). Under these circumstances, defendant’s knowledge was not the issue for
establishing his mens rea, but rather the truthfulness of the witnesses’ testimony was the key. If
the witnesses were telling the truth then it was obvious that defendant was engaged in
manufacturing methamphetamine; and if defendant was engaged in manufacturing
methamphetamine it was obvious that he knew the equipment he possessed was to be used to
further that purpose. MCL 333.7401c(1)(b). In other words, if the jury believed that defendant
manufactured methamphetamine then it necessarily would have found that he knew what the
purpose of the equipment used for manufacturing it was.




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       Indeed, with the admission of testimony that defendant manufactured methamphetamine
on December 13,2 there was no need for any other-acts evidence relating to the uncharged date of
December 3, and the admission of other-acts evidence as to that date was unduly prejudicial.
MRE 403; see VanderVliet, 444 Mich at 55; McGhee, 268 Mich App at 609. The only reason for
anyone to possess singular tools of the trade on one’s person, such as multiple coffee filters and
lithium strips, is for the purpose of unlawfully manufacturing methamphetamine. In addition,
there was no claim or argument, nor was one possible on these facts, that defendant possessed
the materials for some other purpose, such as making coffee or some other lawful drink, which
would have genuinely put his knowledge and intent at issue. Consequently, admitting evidence
tying defendant to the truck on December 3 simply led to an inference of propensity, by linking
defendant to the manufacture of methamphetamine on another, uncharged occasion but where
such evidence did not otherwise help establish his mens rea.

        Moreover, the evidence regarding the December 3 incident involving the blue pickup
truck was simply that defendant (1) was in control of it by driving it that day; (2) he was
involved in cooking methamphetamine on December 13, using particular items; and (3) on
December 3, the truck was found to contain similar tools of the trade, such as coffee filters.
Rather than helping to establish the truth of the principal charges involving December 13, by
showing that defendant, as of that date knew how to manufacture methamphetamine because he
had been in possession of the tools to do so ten days earlier, the proofs were more that defendant
must have known as of December 3 how to manufacture the drug because he did so on the later
date. As noted, the proofs were simply that defendant manufactured methamphetamine using a
bottle and the filters on December 13, and that the truck on December 3 contained similar items
such as coffee filters. Thus, the inference which the other-acts evidence led to was that
defendant must have used those items in a similar manner on December 3, and thus had criminal
intent on that date, even though the admissibility of the other-acts evidence was premised on
proving defendant’s mens rea on December 13. As a result, the admission of evidence regarding
the events of December 3 was erroneous as it merely showed his propensity to commit drug
crimes on December 13.

       Therefore, the other-acts evidence was inadmissible based on the second prong of the
MRE404(b) test. Furthermore, as we have noted, even if such evidence were otherwise relevant,
it was unduly prejudicial to admit it under the circumstances presented here and should have




2
   We note that evidence of defendant manufacturing methamphetamine on December 13 was
itself other-acts evidence. Defendant was not charged with manufacturing methamphetamine,
and even the charge that he unlawfully possessed the drug on that date did not require proof that
he had manufactured it, only that he was in possession of it; thus, proof that he did manufacture
methamphetamine constituted proof of another, uncharged crime. Defendant did not object at
the trial court and does not challenge the admissibility of this evidence on appeal.


                                               -5-
been barred under the third prong of MRE 404(b). Consequently, the trial court erred in the
admission of the evidence relating to December 3.3

        Thus, we must consider the effect of the improper admission of the other-acts evidence.
Importantly, “[w]hen we find error in the admission of evidence, a preserved nonconstitutional
error ‘is presumed not to be a ground for reversal unless it affirmatively appears that, more
probably than not, it was outcome determinative—i.e., that it undermined the reliability of the
verdict.’ ” Denson, 500 Mich at 396, quoting People v Douglas, 496 Mich 557, 565-566; 852
NW2d 587 (2014). Such an analysis “ ‘focuses on the nature of the error and assesses its effect
in light of the weight and strength of the untainted evidence,’ ” in order “ ‘to determine whether
it is more probable than not that a different outcome would have resulted without the error.’ ” Id.
at 396-397, citing Lukity, 460 Mich at 495.

        Applying that standard here, we have little difficulty concluding that the admission of
evidence relating to the December 3 episode could not have led to a different outcome at trial
than would have occurred had such evidence been excluded. Defendant was arrested in
possession of items which had no legitimate uses in the combinations in which they were found
other than the manufacture of methamphetamine. Indeed, upon his arrest and the discovery of
those items, defendant stated to the arresting officer, “You got me.” Defendant’s guilt was
corroborated by the testimony of the two immunized accomplices, which included a description
of defendant’s cooking of methamphetamine and the involvement of one of the witnesses in
buying Sudafed, the basic ingredient in methamphetamine. Under these circumstances, it is clear
that even absent the admission of the other-acts evidence, a jury would have found defendant
guilty. He is unable to overcome the presumption that the admission of such evidence was not
outcome determinative. Denson, 500 Mich at 396.

                          II. SCORING OF OFFENSE VARIABLE 14

       Defendant also argues that the trial court erred in assigning 10 points for offense variable
(OV) 14. Specifically, defendant claims that there was insufficient evidence to show that this
was a multiple-offender situation, which makes the scoring of 10 points inapplicable. We
disagree.




3
  We note that many of the evidentiary difficulties relating to the December 3 and December 13
incidents involving defendant and the two immunized witnesses could have been avoided simply
by charging a conspiracy involving all three of them to manufacture, to deliver and to possess
with intent to deliver methamphetamine during that time period. See MCL 750.157a; People v
Mass, 464 Mich 615; 628 NW2d 540 (2001). If that had been the charge, the events of
December 3 would not have constituted other-acts evidence, but would have constituted
evidence of the charged conduct, the conspiracy. Nothing would have prevented the prosecution
from giving immunity to the two witnesses for a conspiracy in the same manner in which the
prosecution immunized them at trial.


                                                -6-
       A trial court’s factual findings pertaining to the scoring of guidelines variables 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). Under the clear error standard, this Court
will not displace a trial court’s factual findings unless this Court is left with a definite and firm
conviction that a mistake was made. People v Thompson (On Remand), 314 Mich App 703, 708;
887 NW2d 650 (2016). Whether the facts found by the trial court are adequate to trigger the
scoring of a particular guidelines variable is a question of statutory interpretation that is reviewed
de novo. Hardy, 494 Mich at 438.

        OV 14 relates to an “offender’s role . . . in a multiple offender situation,” and the trial
court must assess the maximum points applicable against a defendant considering the entire
criminal transaction. MCL 777.44(1) and (2); People v Gibbs, 299 Mich App 473, 493-494; 830
NW2d 821 (2013). A court properly scores 10 points for this OV if the defendant “was a leader
in a multiple offender situation.” MCL 777.44(1)(a). Generally, offense variables are scored on
an offense-specific approach, but because the statute for OV 14 provides that the “entire criminal
transaction should be considered,” OV 14 is scored differently—specifically, OV 14 “must be
assessed for conduct extending beyond the sentencing offense.” People v McGraw, 484 Mich
120, 127; 771 NW2d 655 (2009).

         Here, the trial court found that this was a multiple-offender situation because both Janice
and Smith “aided and abetted” defendant, who directed Janice’s and Smith’s involvement. This
finding is not clearly erroneous. “The phrase ‘aids or abets’ [in the aiding and abetting statute,
MCL 767.394] is used to describe any type of assistance given to the perpetrator of a crime by
words or deeds that are intended to encourage, support, or incite the commission of that crime.”
People v Moore, 470 Mich 56, 63; 679 NW2d 41 (2004). The record shows that Janice
purchased Sudafed to be used for methamphetamine production at defendant’s direction. Janice
testified that she was aware of defendant’s plans to make methamphetamine with the Sudafed
when she purchased the Sudafed, and she gave it to him so he could fulfil that purpose. Hence,
Janice knowingly provided assistance to defendant in the commission of the crime. The record
also shows that defendant directed Smith where to drive in order to obtain the components
needed to produce methamphetamine and that she willingly did so. Importantly, Smith described
the plan to make methamphetamine as a joint venture when she stated, “We were planning on
making meth.” Thus, we are not left with a definite and firm conviction that the trial court erred




4
  MCL 767.39 provides: “Every person concerned in the commission of an offense, whether he
directly commits the act constituting the offense or procures, counsels, aids, or abets in its
commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if
he had directly committed such offense.”


                                                 -7-
when it found that a preponderance of the evidence showed that Janice and Smith participated in
the criminal transaction along with defendant and that defendant was the leader. Therefore, the
trial court did not err when it scored OV 14 at 10 points.

       Affirmed.

                                                          /s/ Patrick M. Meter
                                                          /s/ Michael F. Gadola
                                                          /s/ Jonathan Tukel




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