            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 14, 2019
              Plaintiff-Appellee,

v                                                                  No. 342517
                                                                   Clinton Circuit Court
KEVIN MICHAEL BARBER,                                              LC No. 2017-009885-FH

              Defendant-Appellant.


Before: SWARTZLE, P.J., and CAVANAGH and CAMERON, JJ.

PER CURIAM.

        Defendant was convicted after a jury trial of operating or maintaining a
methamphetamine laboratory, MCL 333.7401c(2)(f), second or subsequent offense, MCL
333.7413(1), and of manufacturing methamphetamine, MCL 333.7401(2)(b)(i), second or
subsequent offense, MCL 333.7413(1). The trial court sentenced defendant to serve concurrent
prison terms of 5 to 40 years for each conviction. Defendant appeals by right. We affirm in part,
vacate in part, and remand for resentencing.

                                      I. BACKGROUND

        On August 3, 2017, at approximately 1:30 a.m., Officer Ethan Rennaker of the DeWitt
Township Police Department observed a lit and unattended charcoal grill at the Town and
Country Motel. Officer Rennaker knew this motel as an area where drugs were often used, sold,
and manufactured. The unattended charcoal grill was in front of one of the motel rooms, and
Officer Rennaker checked that room’s registration. A “Michelle Schooler” and a “Kevin Smith”
had rented the room. Officer Rennaker went to the room, and Schooler answered the door.
Officer Rennaker could see that defendant was inside the room. Schooler and defendant
exhibited signs of drug use and a strong chemical odor emanated from the room. Accordingly,
Officer Rennaker contacted Deputy Matt Dedyne of the county’s methamphetamine response
team.     Deputy Dedyne, who had received extensive training on the detection of
methamphetamine, arrived at the motel sometime later and met with Officer Rennaker. Deputy
Dedyne believed that the odor from the room was ammonia gas, a byproduct of manufacturing
methamphetamine. Deputy Dedyne checked the National Precursor Log Exchange, a national



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database that tracks pseudoephedrine purchases, and he found that both defendant and Schooler
had recently purchased pseudoephedrine. Each also had numerous prior federal “compliance
blocks,” meaning that they had purchased the maximum amount of pseudoephedrine that may be
purchased each month and were not permitted to purchase more.

         Deputy Dedyne subsequently obtained a search warrant, contacted the rest of the
county’s methamphetamine response team, and executed the warrant at approximately 4:30 a.m.
Defendant and Schooler were still inside the room. Deputy Dedyne found every piece of
equipment and every ingredient, except pseudoephedrine, necessary to manufacture
methamphetamine. This included four “one pots,” containers used to house the chemical
reaction process; glass jars, used in a later stage of the “cook” process; coffee grinders and
filters, used to break down pseudoephedrine pills; a gas generator; sulfuric acid; and lighter fluid.
Additionally, five mobile phones were discovered, one of which belonged to defendant. Police
arrested both defendant and Schooler.

        The prosecutor filed a felony complaint against defendant containing two charges: Count
I, operating or maintaining a methamphetamine laboratory, MCL 333.7401c(2)(f), and Count II,
manufacturing methamphetamine, MCL 333.7401(2)(b)(i). In the copy of the complaint in the
trial court file, however, a pen was used to cross out Count II. At defendant’s preliminary
examination, only Count I was addressed, and defendant was bound over to the circuit court on
that charge. On the same day as the preliminary examination, the prosecutor filed a felony
information containing both Count I and Count II. Defendant proceeded to trial and the jury
found him guilty of both offenses.

                                          II. ANALYSIS

                                         A. BINDOVER

       Defendant first argues that Count II, manufacturing methamphetamine, was improperly
included in the felony information because there was no preliminary examination on that charge
and, accordingly, defendant was never properly bound over to the circuit court on that charge.
The prosecutor has conceded error and requests that this Court vacate defendant’s conviction on
that count. We agree that plain error occurred when defendant was convicted of an offense on
which he was never bound over to the circuit court. MCL 767.42(1). Therefore, we vacate
defendant’s conviction and sentence for Count II, manufacturing methamphetamine.

                            B. SUFFICIENCY OF THE EVIDENCE

      Defendant next argues that the evidence at trial was insufficient to support his conviction
on Count I, operating or maintaining a methamphetamine laboratory. We disagree.

        “This Court reviews de novo a claim that evidence at trial was insufficient to support a
conviction.” People v Solmonson, 261 Mich App 657, 661; 683 NW2d 761 (2004). When an
appellate court reviews the evidence supporting a conviction, “factual conflicts are to be viewed
in a light favorable to the prosecution.” People v Wolfe, 440 Mich 508, 515; 489 NW2d 748
(1992), amended 441 Mich 1201 (1992). The appellate court must “view the evidence in a light

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most favorable to the prosecution and determine whether any rational trier of fact could have
found that the essential elements of the crime were proven beyond a reasonable doubt.” Id.
Evidence can be circumstantial or it may be drawn from reasonable inferences. Solmonson, 261
Mich App at 661. The inferences may not, however, be based on mere speculation. People v
Lane, 308 Mich App 38, 59; 862 NW2d 446 (2014).

         MCL 333.7401c states in pertinent part:

                (1) A person shall not do any of the following:

                 (a) Own, possess, or use a vehicle, building, structure, place, or area that
         he or she knows or has reason to know is to be used as a location to manufacture a
         controlled substance in violation of section 7401 or a counterfeit substance or a
         controlled substance analogue in violation of section 7402.

                 (b) Own or possess any chemical or any laboratory equipment that he or
         she knows or has reason to know is to be used for the purpose of manufacturing a
         controlled substance in violation of section 7401 or a counterfeit substance or a
         controlled substance analogue in violation of section 7402.

                (c) Provide any chemical or laboratory equipment to another person
         knowing or having reason to know that the other person intends to use that
         chemical or laboratory equipment for the purpose of manufacturing a controlled
         substance in violation of section 7401 or a counterfeit substance or a controlled
         substance analogue in violation of section 7402.

                (2) A person who violates this section is guilty of a felony punishable as
         follows:

                                               * * *

                (f) If the violation involves or is intended to involve the manufacture of a
         substance described in section 7214(c)(ii),[1] by imprisonment for not more than
         20 years or a fine of not more than $25,000.00, or both.

        Upon review of the record, we conclude that there was overwhelming direct and
circumstantial evidence to support defendant’s conviction of operating or maintaining a
methamphetamine laboratory. Deputy Dedyne, who had received specialized training in
detecting and identifying methamphetamine, testified extensively concerning the
methamphetamine manufacturing process, the ingredients needed, and the equipment typically
used. Deputy Dedyne testified that everything needed to manufacture methamphetamine was
present in the motel room where defendant was found. Deputy Dedyne gave his professional
opinion that the motel room was being used as a methamphetamine laboratory and that the


1
    Section 7214(c)(ii) describes methamphetamine.


                                                 -3-
substances found in the motel room were indeed methamphetamine. Furthermore, numerous
incriminating text messages were retrieved from defendant’s cell phone, and Deputy Michael
Leasher testified concerning the contents of those messages. Finally, another prosecution
witness, Leslie Ann Stripling, testified that the name “Kevin Smith” was an alias used by
defendant to rent the motel room because the motel had previously barred him. Deputy Dedyne
testified that those wishing to avoid law enforcement often use fake names when renting motel
rooms. Stripling also gave damaging rebuttal testimony concerning defendant’s only witness,
Schooler, who testified that defendant visited her to have sexual relations with her but not to
participate in creating methamphetamine. From this evidence, a rational trier of fact could have
found beyond a reasonable doubt that defendant operated or maintained a methamphetamine
laboratory in the motel room.

                           C. GREAT WEIGHT OF THE EVIDENCE

        Defendant next argues that, even if the evidence was sufficient to submit the case to the
jury, the guilty verdict on the charge of operating or maintaining a methamphetamine laboratory
was against the great weight of the evidence. We disagree.

        A defendant must move for a new trial to preserve the assertion that the jury’s verdict
was against the great weight of the evidence. People v Lopez, 305 Mich App 686, 695; 854
NW2d 205 (2014). Defendant failed to move for a new trial. Therefore, this issue is
unpreserved, and we review defendant’s challenge for plain error affecting his substantial rights.
See id. “The test to determine whether a verdict is against the great weight of the evidence is
whether the evidence preponderates so heavily against the verdict that it would be a miscarriage
of justice to allow the verdict to stand.” Id. at 696 (cleaned up). “Additionally, it is the province
of the jury to determine questions of fact and assess the credibility of witnesses.” People v
Anderson, 322 Mich App 622, 632; 912 NW2d 607 (2018) (cleaned up).

        As previously discussed, the prosecutor introduced sufficient direct and circumstantial
evidence to show that defendant operated or maintained a methamphetamine laboratory.
Although there was conflicting testimony at trial, such testimony “is an insufficient ground for
granting a new trial.” Id. Nothing in our review of the record convinces us that “the evidence
preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the
verdict to stand.” Lopez, 305 Mich App at 696.

                                      D. RESENTENCING

       Finally, defendant argues that the vacation of his conviction and sentence for Count II
requires vacation of his sentence for his conviction of Count I and remand to the trial court for
resentencing on Count I. We agree.

        Defendant was properly convicted of operating and maintaining a methamphetamine
laboratory, MCL 333.7401c(2)(f), second or subsequent offense, MCL 333.7413(1). The crime
is ordinarily a 20-year felony. MCL 333.7401c(2)(f). An individual convicted of a second or
subsequent offense, however, “may be imprisoned for a term not more than twice the term
otherwise authorized.” MCL 333.7413(1). Therefore, the crime was a 40-year felony. The trial
court sentenced defendant to a term of 5 to 40 years in prison for this conviction.

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        When it scored the sentencing guidelines, the trial court assessed 10 points for prior
record variable (PRV) 7, “subsequent or concurrent felony convictions.” Ten points are assessed
for PRV 7 if “[t]he offender has 1 subsequent or concurrent conviction.” MCL 777.57(1)(b).
Points are properly assessed under PRV 7 “if the offender was convicted of multiple felony
counts or was convicted of a felony after the sentencing offense was committed.” MCL
777.57(2)(a). The trial court based its scoring of PRV 7 on defendant’s conviction of both Count
I and Count II. Because defendant’s conviction for Count II was invalid, these 10 points were
improperly assessed for PRV 7. In total, the trial court assessed 30 points for the PRVs and 10
points for the offense variables. This placed defendant within the D-II grid for Class B felonies,
MCL 777.63, resulting in a recommended minimum-sentence range of 51 to 85 months in
prison. Without the 10 points improperly assessed for PRV 7, defendant’s PRV points would
total 20 instead of 30. This would place defendant within the C-II grid for Class B felonies, and
his recommended minimum-sentence range would be 30 to 50 months in prison. MCL 777.63.
When an error affects the applicable sentencing-guidelines range, a remand for resentencing is
required. People v Francisco, 474 Mich 82, 92; 711 NW2d 44 (2006). Therefore, although we
affirm defendant’s conviction of Count I, operating or maintaining a methamphetamine
laboratory, MCL 333.7401c(2)(f), second or subsequent offense, MCL 333.7413(1), we vacate
the sentence imposed by the trial court for that conviction and remand for resentencing.

        Affirmed in part, vacated in part, and remanded for resentencing. We do not retain
jurisdiction.




                                                            /s/ Brock A. Swartzle
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Thomas C. Cameron




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