                             STATE OF MICHIGAN

                               COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      October 20, 2016
                  Plaintiff-Appellee,

v                                                                     No. 328306
                                                                      Ontonagon Circuit Court
STEVEN PAUL THOMPSON,                                                 LC No. 2015-000012-FH

                  Defendant-Appellant.


Before: MARKEY, P.J., and MURPHY and RONAYNE KRAUSE, JJ.

PER CURIAM.

        Defendant appeals by right from his conviction following a jury trial of
delivery/manufacture of a schedule 1, 2, or 3 controlled substance (except marijuana or cocaine),
MCL 333.7401(2)(b)(ii). Defendant was sentenced to two-and-a-half to seven years in prison.
Defendant claims that he was denied his due process right to a fair trial because he did not have
adequate time to defend against the undisclosed evidence, to pursue a different approach at trial,
that his counsel was ineffective for failing to request an instruction on the failure to record the
statement pursuant to MCL 763.8(2), that the prosecutor improperly bolstered the credibility of
the informant, and the trial court’s refusal to give the addict-informer instruction to the jury
denied him of a fair trial. We affirm.

                              I. FACTS AND PROCEDURAL HISTORY

        On July 2, 2014, the Upper Peninsula Substance Enforcement Team (UPSET), working
with an informant, arranged to conduct a controlled buy of illegal narcotics at the residence of an
individual named Joseph Bittner. The informant, while under constant surveillance by the police
officers involved and equipped with a hidden voice recorder, bought hydrocodone and “bath
salts”1 from Bittner inside Bittner’s residence. When the informant returned from the buy, she
informed the police officers that defendant was in Bittner’s house and that he too had offered to
sell her two grams of “bath salts” for $200.00. The police officers searched the informant to
make sure that she did not have any narcotics or money on her person, and gave her money in



1
    “Bath salts” is a schedule 1 substance. See MCL 333.7212(1)(p).


                                                   -1-
order to perform another controlled buy. The informant, for a second time, proceeded to
Bittner’s house and subsequently returned with the bath salts and no money.

        Defendant was subsequently arrested on January 8, 2015, and transported to the county
jail, where he was interviewed by Deputy Brian Muladore and Deputy Emily Rady, two of the
officers involved in the July 2, 2014, controlled buy. Defendant was read his Miranda2 rights,
and he signed a Miranda card stating that he was waiving those rights. According to Deputy
Rady, defendant stated in pertinent part:

                  He stated that he has sold bath salts one time. He claimed to have bought
          them one time in the past. He stated that he purchases them from China, and at
          that time, he paid $40.00 for approximately twelve grams. He stated that he’s
          also traded sexual acts for bath salts on three separate occasions with three
          separate women. He’s also stated that he sold bath salts for money, but he did not
          state that he--he did not remember when that happened.

                                            II. ANALYSIS

                             A. VIOLATION OF DISCOVERY RULES

       On appeal, defendant argues that the prosecution violated the discovery rules because he
was not given the report, detailing his statement to the police, until the first day of the trial.

        “A trial court’s decision to admit or exclude evidence is reviewed for an abuse of
discretion.” People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). An abuse of discretion
occurs when the trial court chooses an outcome that is outside the range of principled outcomes.
People v Schaw, 288 Mich App 231, 236; 791 NW2d 743 (2010).

        “The purpose of broad discovery is to promote the fullest possible presentation of the
facts, minimize opportunities for falsification of evidence, and eliminate the vestiges of trial by
combat.” People v Johnson, 356 Mich 619, 621 n *; 97 NW2d 739 (1959) (quotation marks and
citations omitted). “Pursuant to MCR 6.201(B)(2), upon request, the prosecutor must disclose
‘any police report concerning the case’.” People v Banks, 249 Mich App 247, 252; 642 NW2d
351 (2002). Further, “[w]hen determining the appropriate remedy for discovery violations, the
trial court must balance the interests of the courts, the public, and the parties in light of all the
relevant circumstances, including the reasons for noncompliance.” Id. In People v Taylor, 159
Mich App 468, 470-471; 406 NW2d 859 (1987), the Court rejected the notion that a discovery
order violation equated to an “unconstitutional denial of due process,” disagreeing “that this
procedural problem should be elevated to constitutional rank and locked into an inflexible
remedy.” Rather, the Court stated:

          The question, . . . in any given case is first, whether the party’s interest in
          preparing his own case or his opportunity to test the authenticity of his opponent’s


2
    See Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


                                                  -2-
       evidence has been prejudiced by a noncompliance with a discovery order or
       agreement, and second, if that be the case, what remedy may be appropriate
       giving due regard to the competing interests of the opposing party, the court and
       the public. A remedy which would put the objecting party in a better position
       than he would have enjoyed had disclosure been timely made would seem of
       dubious value, particularly if it does violence to other legitimate interests in the
       case. It would be a contradiction in terms, for instance, to exclude a genuine and
       relevant document only because the objecting party had not had an opportunity to
       verify its authenticity.

               We need not discuss all of the possible circumstances under which it
       might be determined that some remedy for nondisclosure would be warranted, or
       what remedies should apply in particular circumstances. Suffice it to say that we
       concur with the cases cited herein that the trial courts have discretion to deal with
       questions of noncompliance with discovery orders or agreements; that in
       fashioning remedies in the exercise of that discretion, there must be a fair
       balancing of the interests of the courts, the public, and the parties; and that the
       exclusion of otherwise admissible evidence is a remedy which should follow only
       in the most egregious cases. [159 Mich App at 486-487.]

        MRE 801(d)(2) provides that an admission by a party-opponent is not hearsay.
Defendant’s statements contained in the report were not hearsay; therefore, the trial court did not
abuse its discretion when it allowed testimony regarding the statements as admissions by a party-
opponent. The trial court did not allow the report itself into evidence, and defendant has not
articulated any evidentiary basis for excluding his statements.

       Moreover, defendant did not seek a continuance in order to allow him to prepare for the
evidence outlined in the report which would have “alleviated any harm to defendant’s case.” See
People v Elston, 462 Mich 751, 764; 614 NW2d 595 (2000). The trial court asked defense
counsel if he needed more time to prepare for trial before questioning Rady on the contents of
the report. Defense counsel did not request a continuance, and the trial court indicated that Rady
would be subject to recall, by defense counsel, if he needed more time. Still, no continuance was
requested. “[I]n the absence of a request for a continuance, a trial court should assume that a
party does not desire a continuance.” Id.

        The gravamen of defendant’s arguments is that the statements should have been excluded
because defendant requested disclosure of statements, confessions, or admissions that might be
used against him, and by not providing the report, or a timely copy of the recording, his ability to
prepare a defense was impaired. Although MCR 6.201(B)(2) makes it mandatory, upon request,
for the prosecutor to disclose any police report concerning the case, the prosecutor could not
disclose a report that he was not aware existed. The record indicates that the prosecutor received
the report from Muladore on the day of trial and immediately produced it for defendant. There
was no evidence to show that the prosecutor intentionally suppressed the evidence or acted in
bad faith in withholding the evidence. In other words, this was not an egregious case.
Moreover, because defendant participated in the interview, he arguably should have known what
his statements were in the interview. Compare Taylor, 159 Mich App at 488 (finding “defendant
was entitled to no remedy for the prosecutor’s nondisclosure of the letter in question since the

                                                -3-
defendant, having written it himself, had knowledge of it independent of discovery.”). Given
these facts, there is no indication that the trial court abused its discretion in dealing with the
noncompliance. The court appropriately balanced the interests of the court, the public, and the
parties in determining that this otherwise admissible evidence should not be excluded as a
remedy for the unintentional discovery violation.

        Further, the fact that there was conflicting testimony as to the accuracy of defendant’s
statement does not render the report inadmissible. This is because the jury is tasked with the role
of determining credibility and the weight to give the evidence presented at trial. See People v
Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008). In his testimony, defendant denied that
he confessed to selling bath salts and alleged that the police took “bits and pieces” of his
statement and “concocted” the report. Defendant also denied confessing to having sex with three
women in exchange for bath salts. Defendant’s account contradicted Deputy Rady’s testimony.
“The jury is free to believe or disbelieve, in whole or in part, any of the evidence presented at
trial.” Id. at 228 (internal quotation marks omitted). In any event, a reviewing court will not
disturb the credibility findings of the fact finder. See People v Milstead, 250 Mich App 391,
404; 648 NW2d 648 (2002). “This Court does not weigh the competing evidence; that is the
jury’s function.” Unger, 278 Mich App at 228.

         To overcome the presumption that a preserved non-constitutional error is harmless, “a
defendant must persuade the reviewing court that it is more probable than not that the error in
question was outcome determinative.” Elston, 462 Mich at 766. An error is “outcome
determinative” if it undermined the reliability of the verdict. See People v Lukity, 460 Mich 484,
495-496; 596 NW2d 607 (1999). “In making this determination, the reviewing court should
focus on the nature of the error in light of the weight and strength of the untainted evidence.”
Elston, 462 Mich at 766. In this case, there was other evidence of defendant’s guilt apart from
the evidence in the report. The informant testified that she bought two grams of bath salts from
defendant in exchange for $200.00. When the audio recording was played in court, the
informant identified defendant’s voice as one of the voices on the audio recording. Defendant
also admitted that it was his voice on the recording. Moreover, the informant positively
identified defendant in court as the individual who sold her bath salts in exchange for $200.00.
Further, Deputy Rady testified that on the day of the controlled buy, she saw defendant and
Bittner standing outside Bittner’s house as the informant approached. Deputy Rady, who
claimed she was familiar with defendant’s voice, and identified defendant’s voice on the audio
recording. Given this evidence, it is not more probable that defendant would have been acquitted
if his statements had been excluded.

        Regarding counsel’s failure to seek an instruction on the failure of the police to record his
interview, to preserve a claim of ineffective assistance of counsel, the argument should be raised
by a motion for a new trial or an evidentiary hearing. People v Snider, 239 Mich App 393, 423;
608 NW2d 502 (2000). Because defendant did not move for a new trial or an evidentiary
hearing, this Court’s review is limited to mistakes apparent from the record. People v Heft, 299
Mich App 69, 80; 829 NW2d 266 (2012).

        MCL 763.8(2) requires that a police officer “interrogating an individual in custodial
detention regarding the individual’s involvement in the commission of a major felony [to] make
a time-stamped, audiovisual recording of the entire interrogation.” Failure to record such a

                                                -4-
statement entitles the defendant to a jury instruction that “it is the law of the state to record
statements of an individual in custodial detention who is under interrogation for a major felony
and that the jury may consider the absence of a recording in evaluating the evidence relating to
the individual’s statement.” MCL 763.9. A major felony is “a felony punishable by
imprisonment for life, for life or any term of years, or for a statutory maximum of 20 years or
more, or a violation of 520d of the Michigan penal code, 1931 PA 328, MCL 750.520d.” MCL
763.7(d).

        In this case, Deputy Rady testified that although defendant’s interview was not recorded,
Deputy Muladore took notes of the interview. She admitted that Deputy Muladore did not write
down defendant’s words verbatim, but paraphrased his statements. However, defendant’s
statements were not required to be recorded because he was charged with delivery/manufacture
of a schedule 1, 2, or 3 controlled substance (except marijuana or cocaine), which was
punishable by up to seven years in prison. See MCL 333.7401(2)(b)(ii). Therefore, defendant’s
offense does not qualify as a major offense under the statute. Counsel was not ineffective for his
failure to request the jury instruction because any request would have been futile. See People v
Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004).

                            B. PROSECUTORIAL MISCONDUCT

        Defendant argues that the prosecutor engaged in four instances of prosecutorial
misconduct. These unpreserved claims are reviewed for plain error affecting substantial rights.
People v Pfaffle, 246 Mich App 282, 288; 632 NW2d 162 (2001). Reversal is only warranted if
plain error resulted in the conviction of an actually innocent defendant or seriously affected the
fairness, integrity, or public reputation of the judicial proceedings, independent of defendant’s
innocence. People v Bennett, 290 Mich App 465, 475-476; 802 NW2d 627 (2010). This Court
will not find error requiring reversal where a curative instruction could have alleviated any
prejudicial effect. Id. at 476.

         The role and responsibility of a prosecutor is to seek justice, not merely to convict.
People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). A defendant’s opportunity for a
fair trial can be jeopardized when a prosecutor turns from this responsibility by interjecting
issues broader than the guilt or innocence of the accused. Id. at 63-64.

        The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial. Dobek, 274 Mich App at 63. A claim of prosecutorial misconduct based on the
violation of a specific, enumerated constitutional right requires a court to take special care to
assure that the prosecutor did not infringe upon that right. See People v Blackmon, 280 Mich
App 253, 261; 761 NW2d 172 (2008). Prosecutorial misconduct can be so flagrant that it is
deemed to have rendered the trial fundamentally unfair and thus deprived the defendant of due
process. See Id. at 267. Prosecutorial misconduct issues are decided on a case-by-case basis.
People v Mann, 288 Mich App 114, 119; 792 NW2d 53 (2010). Where a claim of prosecutorial
misconduct is based on the assertion that the prosecutor made an improper argument, the
reviewing court must read the remarks in context, evaluating them “in light of defense arguments
and the relationship they bear to the evidence admitted at trial to determine whether a defendant
was denied a fair and impartial trial.” People v Brown, 267 Mich App 141, 152; 703 NW2d 230
(2005).

                                               -5-
        First, defendant argues that the prosecutor, through questioning the witnesses, repeatedly
bolstered the informant’s credibility at trial and used their testimony to argue to the jury that the
informant was trustworthy and reliable. Specifically, defendant challenges Deputy Muladore’s
statements that he found the informant “trustworthy and believable,” and that she was “reliable,
credible, and trustworthy.” Defendant also challenges Deputy Rady’s statements that the
informant was “very trustworthy” and gave “good information,” and that her work with the
informant was “absolutely successful.” Generally, the prosecution has wide latitude in arguing
the facts and all reasonable inferences arising from it as they relate to [the prosecution’s] theory
of the case.” Dobek, 274 Mich App at 66. While “[i]ncluded in the list of improper
prosecutorial commentary or questioning is the maxim that the prosecutor cannot vouch for the
credibility of his witnesses to the effect that he has some special knowledge concerning a
witness’[s] truthfulness,” People v Bahoda, 448 Mich 261, 276; 531 NW2d 659 (1995), the
prosecutor did not rely on his knowledge, but on the officers’ experiences with the witness.
Moreover, during his opening statement, defense counsel told the jury that this case involved a
“single allegation” against defendant and questioned the credibility of the informant. Defense
counsel continued:

               You’ve heard briefly already that she has a record that has to do with truth
       and honesty . . . You’re going to have a person on here who we know that cannot
       be truthful. You will hear from a person that you know she has a plea agreement,
       a plea bargain to do what she did. She had a reason. She benefitted from this.
       That all goes to credibility, Ladies and Gentlemen, and if you have no credibility,
       you’re not going to be able to convict my client at all, because it all focuses on her
       and her only.

                                              * * *

               . . . [B]ut one thing I find puzzling in this, Ladies and Gentlemen, is this
       alleged controlled buy. It was not planned. Now apparently [the informant], the
       incredible--individual who lacks credibility . . .

                                              * * *

               After hearing this case, Ladies and Gentlemen, getting back to reasonable
       doubt, I believe you will have reasonable doubt. You will have a fair, honest
       doubt as to one thing, the credibility of the only witness in this case, and you’ll
       have a credibility--you’ll have doubt as to where those bath salts came from.
       After all, Ladies and Gentlemen, I think it’s difficult, if not impossible, to convict
       a person, convict my client based upon the testimony of a witness who lacks
       credibility . . .

When reviewed in context, the prosecutor’s questions and the witnesses’ answers were in
response to defendant’s opening statement where the informant’s credibility was repeatedly
attacked by defendant. When the questions are viewed in light of the defense arguments, which
put the informant’s credibility in issue, it cannot be said that defendant was denied a fair and
impartial trial by questions aimed at eliciting rebuttals to this claim. See Brown, 267 Mich App
at 152.

                                                -6-
        Further, defendant contends that the prosecutor improperly asked defendant to comment
on the credibility of the prosecution witnesses by asking him if the officers lied and whether they
made up the contents of his statements to the police. “It is not proper for a prosecutor to ask a
defendant to comment on the credibility of prosecution witnesses since a defendant’s opinion on
such a matter is not probative and credibility determinations are to be made by the trier of fact.”
People v Knapp, 244 Mich App 361, 384; 624 NW2d 227 (2001) (citations and quotation marks
omitted). However, during his testimony, defendant admitted that he made a statement to the
police but denied that the written statement was a representation of what he said to the police. In
fact, defendant contended that “in the course of conversation,” the police officers “took bits and
pieces [of his statements] and concocted this statement[sic] this big out of fifteen minute
conversation.” Given that defendant had already testified that the officers’ testimony was not
credible, the prosecutor’s questions were innocuous. Moreover, we note that defendant opened
the door to this line of questioning and once opened, “cross-examination on the subject was
proper.” See People v Bettistea, 173 Mich App 106, 116; 434 NW2d 138 (1988). Additionally,
a curative instruction would have remedied any issue.

        Furthermore, defendant argues that he was prejudiced when the prosecutor asked him
about his ability to sit in the courtroom during the testimony, which gave him the opportunity to
tailor his testimony. This was not in error. The prosecutor’s statement concerned defendant’s
credibility. See People v Buckey, 424 Mich 1, 14-15; 378 NW2d 432 (1985). “It is well
established that the prosecutor may comment upon the testimony and draw inferences from it and
may argue that a witness, including the defendant, is not worthy of belief.” Id.. “Opportunity
and motive to fabricate are permissible areas of inquiry of any witness” Id. at 15. The
prosecutor’s comment was proper in light of defendant’s testimony that he did not tell the police
officers that he sold bath salts. Rather, defendant alleged that during the interview with the
police officers, he was upset so he told the police officers that he would do anything to go home
to his daughter, including pleading guilty to selling bath salts.

         Next, defendant argues that in his closing statement, the prosecutor improperly bolstered
the informant by telling the jury that she was “credible, her work exemplary, she had no reason
to lie, and that the police did not have any concerns about her credibility, truthfulness, or
reliability.” When viewed as a whole, the prosecutor was merely summarizing the facts in
evidence and encouraging the jury to draw reasonable inferences from those facts. In his closing
and rebuttal statements, the prosecutor was arguing that the credibility of the witness should be
based on the evidence and reasonable inferences. This is proper. People v Howard, 226 Mich
App 528, 548; 575 NW2d 16 (1997). “A prosecutor need not confine argument to the blandest
of all possible terms, but has wide latitude and may argue the evidence and all reasonable
inferences from it.” People v Aldrich, 246 Mich App 101, 112; 631 NW2d 67 (2001).

        Defendant also argues that the prosecutor made a statement not supported by the
testimony at trial when he told the jury that the informant did not need the controlled-buy deal
with defendant to get the benefit of the plea bargain. However, this argument is supported by the
testimony at trial. Deputy Rady testified that she had a written agreement with the informant that
she would make three controlled buys from people that were selling illegal substances. Further,
the informant also testified that her plea deal required her to complete three separate deals with
three separate individual, but that she had completed “over twenty to twenty-two” deals.


                                                -7-
        Finally, defendant argues that the prosecutor denigrated the defense by telling the jury in
his rebuttal statement that defense counsel was making up his own facts. Because defendant did
not preserve this issue by a contemporaneous objection and request for a curative instruction, this
issue is reviewed for plain error affecting defendant’s substantial rights. See Bennett, 290 Mich
App at 475. “[A] prosecutor may not suggest that a defense counsel is intentionally attempting
to mislead the jury” or denigrate defense counsel. People v Fyda, 288 Mich App 446, 461; 793
NW2d 712 (2010). A prosecutor may not argue that defense counsel intentionally attempted to
mislead the jury because “he is in effect stating that defense counsel does not believe his own
client.” Id. Such argument undermines the defendant’s presumption of innocence and
impermissibly shifts the focus from the evidence itself to the defense counsel’s personality.
People v Wise, 134 Mich App 82, 102; 351 NW2d 255 (1984). However, when viewed as a
whole, the prosecutor’s statement was in response to defendant’s closing argument that the
evidence did not support the charge against him. Even if the prosecutor’s comments were
prejudicial, reversal is not warranted because it did not result in the conviction of an actually
innocent defendant, or “seriously affect the fairness, integrity, or public reputation of judicial
proceedings independent of defendant’s innocence.” Carines, 460 Mich at 763-764

        Moreover, any possible improper prejudice stemming from the prosecutor’s comments
was cured when the trial court specifically instructed the jury that “the lawyers’ statements and
arguments are not evidence,” but is meant to help the jury “understand the evidence and each
side’s legal theories.” This instruction was enough as juries are presumed to follow the
instructions of the court. People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998).

                                 C. OTHER ACTS EVIDENCE

        Defendant also argues that his statements concerning his prior involvement with bath
salts constituted evidence of other crimes or bad acts and should have only been offered with the
requisite warning to the defense. “A trial court’s decision to admit or exclude evidence is
reviewed for an abuse of discretion.” Burns, 494 Mich at 110. An abuse of discretion occurs
when the trial court chooses an outcome that is outside the range of principled outcomes. Schaw,
288 Mich App at 236.

        “[A] prior statement does not constitute a prior bad act coming under MRE 404(b)
because it is just that, a prior statement, and not a prior bad act.” People v Rushlow, 179 Mich
App 172, 176; 445 NW2d 222 (1989), citing People v Goddard, 429 Mich 505, 518; 418 NW2d
881 (1988). Rather, a defendant’s prior statements are admissible as statements of a party-
opponent under MRE 801(d)(2). The appropriate inquiry is whether the statement is relevant
and whether its probative value outweighed its possible prejudicial effect. Goddard, 429 Mich at
515. Evidence is relevant if it 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.” MRE 401. Defendant’s statements were relevant to show that he knew
where to purchase bath salts and that he had sold bath salts to the informant. He acknowledged
that he sold bath salts but claimed that he did not remember who he had sold bath salts to;
because he did not remember who the recipient was, the statement made it more likely that the
recipient was the informant.



                                                -8-
        In addition, defendant has failed to show that he was unfairly prejudiced by the evidence
by showing that the probative value is substantially outweighed by any prejudicial effect. MRE
403 is not intended to exclude “damaging” evidence, because any relevant evidence will be
damaging to some extent. See People v Mills, 450 Mich 61, 75; 537 NW2d 909 (1995), mod 450
Mich 1212 (1995). The evidence is only excluded when the probative value is substantially
outweighed by the danger of unfair prejudice. Id. Although defendant’s statements were
damaging, the evidence, as an admission by defendant, had a compelling tendency to establish
that he committed the crime.

                      D. ADDICT-INFORMANT JURY INSTRUCTION

        Defendant also contends that the trial court’s failure to give the addict-informant jury
instruction denied him a fair trial. A claim of instructional error involving a question of law is
reviewed de novo, but the trial court’s conclusion that an instruction applies to the facts of the
case is reviewed for an abuse of discretion. People v Dupree, 486 Mich 693, 702; 788 NW2d
399 (2010). “An abuse of discretion occurs when the trial court chooses an outcome falling
outside the range of principled outcomes.” People v Buie, 491 Mich 294, 320; 817 NW2d 33
(2012).

        When an addict-informant provides the only testimony against a defendant, the defendant
is entitled to a jury instruction cautioning that it should consider the addict-informant’s
information with special scrutiny. People v Jackson, 292 Mich App 583, 601; 808 NW2d 541
(2011). However, this instruction should only be given if the evidence clearly indicates that the
witness was an addict, and occasional drug use by an informant does not warrant the addict-
informer instruction. People v Griffin, 235 Mich App 27, 40; 597 NW2d 176 (1999) overruled
in part on other grounds in People v Thompson, 477 Mich 146, 148; 730 NW2d 708 (2007).

        At trial, the informant testified that although she was previously addicted to methadone,
five years earlier, she went through a treatment program for that addiction. She also admitted
that she had used cocaine, methamphetamine, marijuana, mushrooms, and acid, but denied ever
being addicted to any of the drugs. Although the informant admitted that she used drugs several
times during her undercover work, she testified that it was to maintain her credibility with the
individuals selling the drugs to her. There was no evidence to show that she was using drugs
during the controlled buy with defendant or that she was addicted to drugs at that time or at the
time of trial.

         Moreover, there was other testimony linking defendant to the crime. Deputy Rady
testified that on the day of the controlled buy, she saw defendant and Bittner standing outside
Bittner’s house as the informant approached. Deputy Rady also identified defendant’s voice on
the audio recording. She stated that she was able to recognize and identify defendant because he
had been incarcerated and she worked within the jail as a correctional officer. Further, during
cross-examination, defendant admitted that on July 2, 2014, he was “apparently” in Bittner’s
residence and that it was his voice on the audio recording. In any event, because there was




                                               -9-
insufficient evidence to show that the informant was an addict at the time of the controlled buy,
there was no error in the trial court’s decision.

       Affirmed.

                                                           /s/ Jane E. Markey
                                                           /s/ William B. Murphy
                                                           /s/ Amy Ronayne Krause




                                              -10-
