                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 12, 2015
               Plaintiff-Appellee,

v                                                                    No. 318217
                                                                     Allegan Circuit Court
ALLEN LANE WALKER,                                                   LC No. 12-017578-FH

               Defendant-Appellant.


Before: M. J. KELLY, P.J., and MURPHY and HOEKSTRA, JJ.

PER CURIAM.

       Following a jury trial, defendant was convicted of possession with intent to deliver less
than 50 grams of cocaine, MCL 333.7401(2)(a)(iv). The trial court sentenced defendant as a
fourth-offense habitual offender, MCL 769.12, to 20 to 240 months’ imprisonment. Defendant
appeals as of right. Because the prosecutor presented sufficient evidence to support defendant’s
conviction, the trial court did not abuse its discretion in admitting other-acts evidence, and there
was no plain error in the admission of the investigating police officer’s testimony, we affirm.

       In the early morning hours of December 11, 2011, defendant was at the Gun Lake
Casino. Mark Henrickson, a security officer at the casino, was walking the casino floor. After
defendant walked past a certain area, Henrickson saw what he thought was a piece of trash on the
floor. He retrieved the object from the floor and discovered that it was a baggie, inside of which
were 7 other baggies, containing a total of approximately 8.42 grams of a white material. The
substance from one of the seven baggies was tested, and it tested positive for the presence of
cocaine. As noted, defendant was convicted of possession with intent to deliver less than 50
grams of cocaine in violation of MCL 333.7401(2)(a)(iv). Defendant now appeals as of right.

        On appeal, defendant first argues that his conviction was not supported by sufficient
evidence. In particular, defendant contends that, because the casino was open to the general
public and no one directly saw defendant with drugs, the evidence presented was insufficient to
establish that he possessed the cocaine discovered on the casino floor.

       We review a challenge to the sufficiency of the evidence de novo. People v Cline, 276
Mich App 634, 642; 741 NW2d 563 (2007). We review the evidence in the light most favorable
to the prosecution to determine whether a rational trier of fact could find that the evidence
proved the essential elements of the crime beyond a reasonable doubt. People v Harverson, 291
Mich App 171, 175; 804 NW2d 757 (2010). “All conflicts in the evidence must be resolved in
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favor of the prosecution and we will not interfere with the jury’s determinations regarding the
weight of the evidence and the credibility of the witnesses.” People v Unger, 278 Mich App
210, 222; 749 NW2d 272 (2008). Circumstantial evidence and reasonable inferences arising
therefrom can constitute satisfactory proof of the elements of the crime. People v Williams, 268
Mich App 416, 419; 707 NW2d 624 (2005).

       The elements of the charge of possession with intent to deliver less than 50 grams of
cocaine are as follows: (1) the defendant knowingly possessed a controlled substance; (2) the
defendant intended to deliver the substance to someone else; (3) the substance possessed was
cocaine and the defendant knew it was cocaine; and (4) the substance weighed less than 50
grams. See MCL 333.7401(2)(a)(iv); see also People v Crawford, 458 Mich 376, 389; 582
NW2d 785 (1998). The essential question relating to possession of narcotics is “whether the
defendant had dominion or control over the controlled substance.” People v Konrad, 449 Mich
263, 271; 536 NW2d 517 (1995). A person’s mere presence at a location where drugs are
discovered does not prove possession; rather, there must be “some additional connection
between the defendant and the contraband.” People v Wolfe, 440 Mich 508, 520; 489 NW2d
748, 754 (1992), amended 440 Mich 508 (1992). In other words, possession is attributed to
those who have actual physical possession of drugs as well as those who, under the totality of the
circumstances, have a “sufficient nexus” to the contraband to indicate constructive possession.
People v Johnson, 466 Mich 491, 500; 647 NW2d 480 (2002).

        In this case, although no one actually saw cocaine in defendant’s possession, the evidence
and reasonable inferences arising therefrom was sufficient to allow the jury to conclude beyond a
reasonable doubt that defendant possessed the cocaine found on the casino floor. Specifically,
Henrickson testified that he was walking in the opposite direction as defendant. Importantly, the
area of the casino floor in front of defendant was clear. But, immediately after defendant walked
past this area, the baggie was on the floor. Although Henrickson did not see anything fall from
defendant’s person, no one other than defendant had been in the area where he saw the baggie.
Aside from Henrickson’s testimony, the jury also viewed a recording of the surveillance footage
of the incident. In the recording, Henrickson can be seen picking up the baggie, which appears
as a white dot, from the casino floor. The recording also shows that the baggie was not on the
floor before defendant walked by the area and that no one else walked in that area between when
defendant walked by and when Henrickson picked up the baggie. Given that no one else had
passed through this area, a reasonable inference arising from the appearance of the baggie after
defendant walked by is that the baggie of cocaine fell, or was dropped, from defendant’s person,
and thus the jury could reasonably conclude that defendant had possession of the cocaine in
question. Accordingly, viewing Henrickson’s testimony and the surveillance footage in the light
most favorable to the prosecution, a rational trier of fact could find beyond a reasonable doubt
that defendant possessed the cocaine. See Harverson, 291 Mich App at 175.

       Next, defendant argues that the trial court erred in admitting evidence of his 2009 arrest
under MRE 404(b). In particular, defendant asserts that this evidence should not have been
admitted because the facts surrounding his 2009 arrest were insufficiently similar to the present
offense. Given the purportedly dissimilar facts, defendant maintains that there was no proper
purpose for the evidence’s admission and instead the prosecution impermissibly used the other-
acts evidence as propensity evidence. Further, defendant argues that the other-act’s probative
value was substantially outweighed by the possibility of unfair prejudice and jury confusion.

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       “The admissibility of other acts evidence is within the trial court’s discretion and will be
reversed on appeal only when there has been a clear abuse of discretion.” People v Waclawski,
286 Mich App 634, 669-670; 780 NW2d 321 (2009). A trial court abuses its discretion when it
chooses an outcome that is outside the range of reasonable and principled outcomes. People v
Orr, 275 Mich App 587, 588-589; 739 NW2d 385 (2007). A trial court’s decision on a close
evidentiary question ordinarily cannot be an abuse of discretion. People v Sabin (After Remand),
463 Mich 43, 67; 614 NW2d 888 (2000).

       MRE 404(b) prohibits the admission of evidence of “other crimes, wrongs, or acts to . . .
prove the character of a person in order to show action in conformity therewith.” MRE
404(b)(1). See also Crawford, 458 Mich at 383. Although other-acts evidence may not be used
to demonstrate a person’s character or propensity to commit a crime, it may be admissible for
other purposes, including, for example, proof of intent or knowledge. MRE 404(b)(1). To
introduce evidence under MRE 404(b):

       First, the prosecutor must offer the “prior bad acts” evidence under something
       other than a character or propensity theory. Second, “the evidence must be
       relevant under MRE 402 . . . .” Third, the probative value of the evidence must
       not be substantially outweighed by unfair prejudice under MRE 403. Finally, the
       trial court, upon request, may provide a limiting instruction under MRE 105.
       [People v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004) (citations omitted).]

        Under this framework, the first question to be addressed is whether the prosecutor has
articulated a proper non-character purpose for the admission of the evidence in question.
Crawford, 458 Mich at 385. A proper purpose for the admission of other-acts evidence is one
that seeks to accomplish something other than establishing the defendant’s character or
propensity to commit the offense. People v Magyar, 250 Mich App 408, 414; 648 NW2d 215
(2002). A mere “mechanical recitation” of a proper purpose does not, however, justify
admission of other-acts evidence. Crawford, 458 Mich at 387. Rather, the prosecutor also bears
the burden of showing that the evidence is logically relevant to a proper purpose. People v
Mardlin, 487 Mich 609, 615; 790 NW2d 607 (2010).

         To be relevant, evidence must be both material and probative. Crawford, 458 Mich at
388. To be material, the evidence must relate to “any fact that is of consequence to the action.”
Id. (citation omitted). Whether the evidence also has probative value depends on “whether the
proffered evidence tends ‘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.’” Id. at 389-390, quoting MRE 401. The relevance of the evidence depends to
varying degrees on the similarity between a defendant’s prior bad acts and current offense. See
Id. at 395-396 & n 13. “Different theories of relevance require different degrees of similarity
between past acts and the charged offense to warrant admission.” Mardlin, 487 Mich at 622.
For example, “[w]hen other acts are offered to show intent, logical relevance dictates only that
the charged crime and the proffered other acts ‘are of the same general category.’ ” People v
VanderVliet, 444 Mich 52, 79-80; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994). In
other words, “mere similarity” between the acts will suffice when the other-acts evidence is
offered to establish an actor’s intent. Sabin (After Remand), 463 Mich at 64 (citation omitted).


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        In this case, before trial, the prosecutor filed a written notice of intent seeking to
introduce into evidence numerous past drug-related offenses committed by defendant. The
prosecutor detailed a lengthy criminal history by defendant including more than 10 arrests for
drug-related offenses over a span of nearly 25 years, including the fact that defendant was
currently on parole for a drug-related offense. The prosecutor maintained that these charges
were relevant to demonstrate defendant’s “motive, opportunity, intent, preparation, scheme, plan
or system, knowledge, or absence of mistake or accident.”1 In response, defendant filed an
objection to the prosecutor’s proposed MRE 404(b) evidence and filed a motion in limine to
exclude other-acts evidence. Defendant asserted that the prosecutor had taken a “shotgun
approach” in his attempt to admit evidence of defendant’s criminal history by failing to
sufficiently distinguish between his various offenses or to establish relevant, individualized
grounds upon which to admit each piece of other-acts evidence.

        On the first day of trial, the trial court heard arguments on the prosecutor’s efforts to
introduce other-acts evidence under MRE 404(b). Most relevant to this appeal, the trial court
granted the prosecutor’s request to admit evidence relating to defendant’s arrest in 2009 for
possession with intent to deliver cocaine and operating a drug house. In arguing for the
admission of this evidence in particular, the prosecutor explained that in 2009 defendant was
found, at his residence, with cocaine packaged in small baggies in a quantity to indicate an intent
to distribute. In the home, police also found cash, a scale, additional baggies, and a razor with
cocaine residue on it. Compared to the present case, the prosecutor emphasized similarities
insofar as in both cases the substance was cocaine in a quantity and packaging to indicate an
intent to distribute. Given these similarities, the prosecutor argued that the 2009 incident was
relevant to establishing defendant’s intent, knowledge that the substance was cocaine, absence of
mistake, and plan or scheme. The prosecutor also attempted to offer evidence of a 2005 incident
in which defendant was found with five crack rocks and a crack pipe, as well as evidence that,
more generally, defendant had a lengthy history of drug arrests which the prosecutor asserted
were relevant to establishing defendant’s intent and knowledge.

       The trial court weeded through the prosecutor’s various pieces of proposed evidence and,
as noted, admitted only the other-acts evidence related to the 2009 incident. The trial court
forbade mention of defendant’s parole status, and the trial court excluded evidence of the 2005
incident based on the conclusion that the presence of the crack pipe indicated the possibility of
personal consumption rather than a plan for distribution and thus this evidence amounted to


1
  Defendant contends that this laundry list recitation of proper purposes does not establish the
admissibility of other-acts evidence. We agree that the prosecutor’s written notice of intent to
offer other-acts evidence contained a rather mechanical recitation of nearly every proper purpose
listed in MRE 404(b). Nonetheless, during oral argument before the trial court relating to the
admission of the evidence, the prosecutor plainly went beyond a mechanical recitation and
detailed specifically the reasons why the prosecutor believed the evidence to be relevant to
defendant’s knowledge, intent, absence of mistake, and plan or scheme. As discussed infra,
despite the rote repetition of proper purposes in the written notice, we are satisfied that the
prosecutor met his burden of establishing the evidence’s relevance to a proper purpose.


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impermissible propensity evidence. The trial court also prevented the prosecutor from
mentioning defendant’s various possession offenses in its case-in-chief. Ultimately, in admitting
evidence relating to the 2009 incident, the trial court analyzed the evidence within the MRE
404(b) framework and reasoned that the 2009 incident was relevant to show an intent to
distribute and that there was a plan or scheme for separately packaging cocaine.

        On appeal, considering the evidence in question and the trial court’s analysis of its
relevance, we conclude that the trial court did not abuse its discretion in permitting the
prosecutor’s use of other-acts evidence under MRE 404(b). First, the trial court appropriately
recognized that the prosecutor identified a proper purpose for the admission of the evidence,
specifically that defendant’s 2009 arrest was relevant to show that defendant knowingly
possessed the cocaine, that he intended to deliver it, and that he had a plan or scheme. Second,
the trial court did not abuse its discretion in concluding that the evidence was material because,
by pleading not guilty, defendant placed all elements of the offense “at issue,” including the
question of his intent to distribute and his knowledge of the substance. Crawford, 458 Mich at
389. See also MCL 333.7401(2)(A)(iv).

        Third, given the similarities between the current offense and defendant’s conduct relating
to his 2009 arrest, in particular his possession of numerous individual baggies containing small
portions of cocaine in a quantity suggestive of an intent to distribute, the two offenses were
within the same “general category.” That is, both offenses involved possession of cocaine and
circumstances indicative of an intent to distribute. See generally Wolfe, 440 Mich at 524-525
(recognizing intent may be inferred from the quantity of narcotics and the manner of packaging).
Because defendant’s conduct in both cases fell within the same “general category,” the trial court
did not abuse its discretion in concluding that the 2009 incident was sufficiently similar to be
logically relevant to the issue of defendant’s intent in the present case.2 VanderVliet, 444 Mich
at 79-80; Sabin (After Remand), 463 Mich at 64.

       Further, the trial court did not abuse its discretion under MRE 403 by concluding that the
probative value of the evidence relating to defendant’s 2009 arrest was not substantially
outweighed by the danger of unfair prejudice or confusion of the issues. All relevant evidence is



2
  We note that, in addition to the issue of intent, the trial court concluded that the other-acts
evidence was sufficiently similar to have relevance to whether defendant was engaged in a
common plan or scheme. Such a theory of relevance requires a higher degree of similarity,
specifically a “concurrence of common features” such that the acts “are naturally explained as
manifestations of a general plan.” People v Hine, 467 Mich 242, 251; 650 NW2d 659 (2002).
Even if the 2009 incident was not sufficiently similar to have relevance on this basis, the trial
court nonetheless did not abuse its discretion in concluding that the evidence had relevance to
prove something other than bad character because, as we have discussed, the trial court
reasonably concluded that the evidence had probative value relating to the issue of intent. See
People v Yost, 278 Mich App 341, 406; 749 NW2d 753 (2008). Thus, despite any arguable error
in finding relevance to the question of a common scheme or plan, the trial court did not abuse its
discretion in determining the evidence was relevant to a proper purpose.


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prejudicial to some extent, and the possibility of prejudice does not make the admission of
evidence unfair. People v Murphy (On Remand), 282 Mich App 571, 582-583; 766 NW2d 303
(2009). “Unfair prejudice exists when there is a tendency that evidence with little probative
value will be given too much weight by the jury.” People v McGhee, 268 Mich App 600, 613-
614; 709 NW2d 595 (2005). “This unfair prejudice refers to the tendency of the proposed
evidence to adversely affect the objecting party’s position by injecting considerations extraneous
to the merits of the lawsuit, e.g., the jury’s bias, sympathy, anger, or shock.” Id. (quotation
marks and citation omitted). In comparison, confusion of the issues generally occurs when “the
introduction of the evidence would have a tendency to divert the trier of fact’s attention from the
truly significant issues in the case.” 1 Robinson & Longhofer, Michigan Court Rules Practice,
Evidence (3d ed), § 403.4.

         In this case, where the trial court determined the evidence to be probative on the issue of
intent and where there is no indication that the evidence injected extraneous considerations into
trial, that it diverted the jury’s attention, or that it was given undue weight, we cannot see that the
trial court abused its discretion in determining that the evidence’s probative value was not
substantially outweighed by the risk of unfair prejudice or confusion. Moreover, any potential
for prejudice or confusion was mitigated by the trial court’s cautionary instruction to the jury:
that they could “not convict the defendant . . . because [they] think he’s guilty of other bad
conduct.” See Orr, 275 Mich App at 593. Ultimately, determinations under MRE 403 are best
left to the trial court, VanderVliet, 444 Mich at 81, and, contrary to defendant’s claims of unfair
prejudice and jury confusion, we find no basis for concluding that the trial court abused its
discretion in admitting the 2009 evidence.

         Finally, defendant also argues that Sergeant Mike Brown’s testimony, in which Brown
indicated that the surveillance footage showed the baggie falling from defendant’s person,
invaded the province of the jury. Alternatively, defendant asserts that defense counsel rendered
ineffective assistance by failing to object to Brown’s testimony in this regard.

        Because defendant did not object to Brown’s testimony at trial, the issue is unpreserved.
MRE 103(a)(1); People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). We review
unpreserved claims of evidentiary error for plain error affecting the defendant’s substantial
rights. People v Benton, 294 Mich App 191, 202; 817 NW2d 599 (2011).

        A witness who is not testifying as an expert may offer an opinion if the opinion is “(a)
rationally based on the perception of the witness and (b) helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue.” MRE 701. In a criminal case, a
witness may not, however, provide an opinion on the guilt or innocence of the defendant. People
v Heft, 299 Mich App 69, 81; 829 NW2d 266 (2012). Further, a witness may not give an opinion
on a matter when the jury is equally capable of reaching its own conclusion on the issue because
such an opinion invades the province of the jury. People v Drossart, 99 Mich App 66, 79-80;
297 NW2d 863 (1980). For example, typically, a lay witness who has viewed a video may not
identify a defendant as the individual depicted in the video or photograph when the jury is
equally capable of reaching its own conclusions regarding the images shown. See People v
Fomby, 300 Mich App 46, 52-53; 831 NW2d 887 (2013).



                                                 -6-
         In this case, Brown testified that, after he spoke with defendant, he viewed the
surveillance footage of the incident. In particular, based on the footage, Brown testified that the
floor in the area of the casino in question appeared “clear” and that as defendant “walked past it
 . . . appeared to [Brown] as though a bag dropped out from either his pocket or somewhere on
his person and hit the floor, and then was retrieved by the security personnel.” Defendant argues
on appeal that this testimony impermissibly invaded the province of the jury because the jury
was equally as capable as Brown of determining what the surveillance footage showed.

        While we generally agree that it would be improper for Brown to invade the province of
the jury by opining on the contents of the video, in context it is clear that Brown offered his
testimony, not to establish the contents of the video or as an opinion on defendant’s guilt, but to
describe the process of his investigation. That is, the fact that evidence may not be used for one
purpose does not render it inadmissible for other purposes, People v Petri, 279 Mich App 407,
415; 760 NW2d 882 (2008), and generally, police officers may explain the steps of their
investigation from their personal perceptions, Heft, 299 Mich App at 83. Taken in context, it
appears clear that Brown’s testimony was offered to explain the steps of his investigation,
including his efforts to obtain a copy of the surveillance footage and his interview with defendant
based on having viewed the footage. Specifically, Brown testified that, after he arrived at the
casino and talked with Henrickson, he spoke with defendant, who denied possession of the
cocaine. Brown testified that he then met with security guards in the surveillance room, at which
time he viewed the surveillance footage. In his testimony, Brown described what the footage
purportedly showed and he confirmed that the footage shown to him at the casino was
“essentially the same footage” shown to the jury at trial. Brown testified that, after viewing the
footage, he took steps to secure a copy of the footage by requesting that the casino have a copy
made. According to Brown’s testimony, after viewing the footage, he spoke with defendant a
second time to again confront defendant about the cocaine based on what the video depicted.
Accordingly, in context, Brown’s testimony regarding what he saw on the surveillance footage
was part of his explanation of the steps of his investigation, and not an improper commentary on
defendant’s guilt or innocence. Cf. id. Because such testimony was “helpful to a clear
understanding of” Brown’s testimony, the testimony was not improper lay opinion testimony, see
MRE 701, and defendant has not shown plain error affecting his substantial rights.

        Moreover, under a plain error standard, even assuming some error in the admission of
Brown’s testimony, reversal is not required because defendant has not made the requisite
showing of prejudice. The jury had ample opportunity to view the video and assess its contents,
and they were in fact told they could reject a witness’s testimony and that police officers should
be judged by the same standard as any other witness. Moreover, defendant does not dispute that
he was at the casino or walked by the area in question. Furthermore, Henrickson personally
observed defendant in the casino and he recounted at trial how he observed the baggie on the
floor after defendant walked past the area in question. In short, there is ample evidence that
defendant dropped the bag of cocaine and Brown’s testimony, even assuming it was improper,
did not affect the outcome of the proceedings. Consequently, defendant has not shown plain
error affecting his substantial rights and he is not entitled to relief on the basis of Brown’s
testimony. See People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

        We also reject defendant’s alternative argument that defense counsel was ineffective for
failing to object to Brown’s testimony. Any objection to Brown’s testimony regarding what he

                                                -7-
saw on the surveillance footage, which occurred while he was explaining the steps of his
investigation, would have been futile because, as noted, a police officer may explain the steps of
his investigation. Heft, 299 Mich App at 83. Defense counsel was not ineffective for failing to
make a futile objection. People v Fike, 228 Mich App 178, 182; 577 NW2d 903 (1998).
Moreover, as discussed, aside from Brown’s testimony, there was ample evidence, including the
video and Henrickson’s testimony, supporting the conclusion that defendant dropped the baggie
in question. In these circumstances, defendant has not shown that, but for counsel’s failure to
object, there was a reasonable probability of a different outcome and thus defendant has not
shown he was deprived of the effective assistance of counsel. See id. at 181.

       Affirmed.



                                                            /s/ Michael J. Kelly
                                                            /s/ William B. Murphy
                                                            /s/ Joel P. Hoekstra




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