                         STATE OF MICHIGAN

                          COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 May 10, 2018
              Plaintiff-Appellee,

v                                                                No. 336754
                                                                 St. Clair Circuit Court
RICHARD JOSEPH HODGE,                                            LC No. 16-001447-FH

              Defendant-Appellant.


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

PER CURIAM.

       Defendant appeals as of right from his convictions of operating or maintaining a
laboratory involving methamphetamine, MCL 333.7401c(2)(f), and maintaining a drug house,
MCL 333.7405(1)(d). He was sentenced as a fourth habitual offender, MCL 769.12, to serve 10
to 25 years in prison for operating and maintaining a methamphetamine lab and 2 to 15 years for
maintaining a drug house. We affirm.

                                     I. BACKGROUND

        Lieutenant Matthew King and other officers executed a search warrant at defendant’s
house in Port Huron. Two people, Heather Atkins and Matthew Powell, were found outside the
residence and were secured by another officer. Lieutenant King found defendant sleeping in his
bedroom and handcuffed him. Other law enforcement officers discovered what they determined
was a methamphetamine lab in the bathroom, so all officers evacuated the house, taking
defendant outside along with another man they found in the house, Justin Wakeham. Lieutenant
King noticed that defendant was barely awake and looked rough, unkempt, and dazed. As
Lieutenant King stood outside with defendant, Deputy Nathan Zuzga, the officer in charge of the
investigation, walked up.

        Deputy Zuzga testified that defendant was handcuffed and in custody and remained at the
house for approximately 20 to 30 minutes after the search warrant was executed. There was an
ambulance already on scene at the time he encountered defendant because Powell required
medical attention. Deputy Zuzga observed that defendant looked terrible; that he was pale and
his eyes were sunken in. The deputy testified that he asked defendant if he was okay, and
whether he had been up for a while. When defendant held out three fingers, Deputy Zuzga asked
if he had been up for three days, and defendant nodded yes. The deputy then asked defendant if

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he needed medical attention, and defendant shook his head no. Deputy Zuzga did not question
defendant any further until they arrived at the police station, and did not enter the information
about this conversation into his report.

        After the house had been cleared of people, evidence technician Deputy Andrew Young
arrived at the house wearing protective gear. In the bathroom he found everything needed to
manufacture methamphetamine. This included a bottle of muriatic acid, a cold-pack wrapper,
Zippo lighter fluid, needle-nosed pliers, end cutters, tin foil, mason jars with coffee filters, and a
gas-generator hose. It also included lithium strips, lithium battery casings, black electrical tape,
a container of lye, and a two-liter soda bottle with rubber tubing taped to the top. Deputy Young
field tested a substance found in the bathroom and it tested positive as methamphetamine.

         In garbage bags found on the front porch of the house, Deputy Young found additional
items commonly used in methamphetamine consumption and production, including straws, used
coffee filters without coffee grounds, cut up plastic bottles, tubing with black electrical tape
around the ends, batteries, and battery casings. Deputy Young determined that, unlike the
evidence found in the bathroom, these items had not been used recently. In the kitchen, Deputy
Young found an unused cold pack and, in the bedroom near the kitchen, there was a trash can
that held the empty box for the cold pack and a needle, a cardboard shipping container with a
digital scale, some packaging material, a pipe, a Michigan health card with defendant’s name on
it, a plastic baggie, a small utensil, a box of tin foil, a pair of pliers, a lithium battery, a butane
lighter, tweezers, a clear container with a white substance inside and a straw next to it, and a
syringe with a needle. Again, many of these items were consistent with methamphetamine
production and use. Deputy Young took multiple photographs before removing the evidence and
those photographs were eventually provided to the jury.

         Wakeham agreed to testify against defendant as part of his plea agreement on a charge of
operating a methamphetamine lab. Wakeham testified that he had only known defendant for
about a month before the raid. He went to defendant’s house that afternoon and a man
nicknamed “Doo Doo” arrived and provided Wakeham with some methamphetamine. Wakeham
and defendant then played video games and smoked the methamphetamine, before defendant
went into his bedroom to lie down. Atkins and Powell then arrived and drove Wakeham to the
store to pick up some items Wakeham needed to cook methamphetamine. Wakeham had
brought batteries, Zippo fluid, and tubing with him to defendant’s house. Because other items
needed to manufacture methamphetamine were already in the house—including jars, a funnel, tin
foil, acid, coffee filters, scissors, and needle-nosed pliers—Wakeham only purchased lye and a
few other items at the store. When Wakeham, Atkins, and Powell returned from the store,
Wakeham proceeded to cook methamphetamine in defendant’s bathroom. Wakeham testified
that he had never cooked methamphetamine at defendant’s house before, but did not feel he
needed defendant’s permission. Defendant slept through the cooking of the methamphetamine
and woke when the police arrived. Wakeham testified that, while some items in the bathroom
were his, nothing in the trash bags belonged to him.

       At trial, defense counsel moved to have evidence of the conversation between defendant
and Deputy Zuzga excluded as inadmissible under Miranda v Arizona, 384 US 436; 86 S Ct
1602; 16 L Ed 2d 694 (1966). The trial court denied defendant’s motion to exclude the
statement, reasoning that Deputy Zuzga had no reason to believe that defendant would be moved

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to make a potentially self-incriminating statement in response to his questions, and, therefore, no
custodial interrogation took place.

        At the conclusion of the trial, defense counsel requested that the jury be instructed in
accordance with M Crim JI 8.1, the mere-presence instruction. The trial court denied defense
counsel’s request, reasoning that the mere-presence instruction conflicted with the special
instruction for operating or maintaining a laboratory involving methamphetamine. The trial
court explained that, under the meth-lab instruction, the defendant’s presence would be sufficient
if he knew or had reason to know that the house was being used to manufacture
methamphetamine.

       The jury found defendant guilty of the above-mentioned crimes, and this appeal followed.

                                         II. ANALYSIS

        The Trial Court Did Not Violate Defendant’s Miranda Rights. On appeal, defendant first
argues that Deputy Zuzga’s question about how long defendant had been awake was a custodial
interrogation that the officer should have known would elicit an incriminating answer from
defendant. Accordingly, defendant argues that the admission of evidence regarding this
statement violated his Miranda rights.

        We review de novo a trial court’s ultimate decision on a motion to suppress evidence.
People v Akins, 259 Mich App 545, 563; 675 NW2d 863 (2003). The trial court’s findings of
fact, however, are reviewed for clear error. People v Beuschlein, 245 Mich App 744, 748; 630
NW2d 921 (2001).

       There is no issue that defendant was in custody at the time Deputy Zuzga asked him how
long he had been awake. The parties agree that, because defendant was handcuffed and not free
to leave the scene, he was in police custody. Therefore, the issues here are whether Deputy
Zuzga’s questions constituted interrogation and whether the answer elicited was incriminatory.

        “The term ‘interrogation’ under Miranda refers not only to express questioning, but also
to any words or actions on the part of the police (other than those normally attendant to arrest
and custody) that the police should know are reasonably likely to elicit an incriminating response
from the suspect.” People v White, 493 Mich 187, 195; 828 NW2d 329 (2013) (internal citation
and notation omitted). When determining whether an “interrogation” occurred, the operative
question is whether an objective observer who heard the questioning would infer that the
questions were designed to elicit an incriminating response. Id. at 196. Police conduct is to be
considered in light of the totality of the circumstances when making this assessment. Id. at 198.

        Under the circumstances existing at the time of the questioning, an objective observer
would infer that the questions were neither designed nor reasonably likely to elicit a self-
incriminating response. Deputy Zuzga observed that defendant looked ill and asked defendant if
he was okay and whether he had been up for a while. In response, defendant held out three
fingers. Deputy Zuzga asked defendant if his response meant that he had been awake for three
days, and defendant nodded his head yes. At that point, Deputy Zuzga was able to determine
that defendant’s appearance was likely due to sleep deprivation rather than an acute medical

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condition requiring assistance from the on-site ambulance. The deputy then provided defendant
with an opportunity to obtain medical attention if he wished, and defendant responded in the
negative. At this point, the questioning ceased until defendant was taken to the police station.

        Given defendant’s ill appearance and the availability of an on-site ambulance, an
objective observer would conclude that Deputy Zuzga’s on-scene questioning of defendant was
designed to determine if defendant required emergency medical assistance. This type of
exchange is “normally attendant to arrest and custody,” see White, 493 Mich at 193, and helps
ensure the safety of the suspect while in police custody. Indeed, the arresting officers would
likely have been negligent if defendant had been ill and they had not determined whether
defendant required medical assistance.

        Moreover, the answer elicited was only marginally incriminatory, if at all. A reasonable
juror might conclude that defendant had been up for three days because he had been consuming
methamphetamine. But defendant was not charged with using or possessing the drug. While
there might be some evidentiary relationship between someone who uses the drug and the
maintaining of a laboratory or drug house, any such relationship would be quite tenuous, at best.
Because the question asked was related to defendant’s medical needs and the answer had only a
tenuous relevance to the charged crimes, we conclude that Detective Zuzga’s testimony did not
violate Miranda.

        Defendant Was Not Entitled to Jury Instruction M Crim JI 8.1. Defendant next argues
that the trial court’s refusal to give jury instruction M Crim JI 8.1 denied defendant a fair trial
because, under the instructions given, the jury could conclude that defendant’s mere presence in
the house was enough to convict him. The “trial court’s determination that a jury instruction is
applicable to the facts of the case is reviewed for an abuse of discretion.” People v Dobek, 274
Mich App 58, 82; 732 NW2d 546 (2007). Questions of law concerning jury instructions are
reviewed de novo. People v McMullan, 284 Mich App 149, 152; 771 NW2d 810 (2009).

         We examine jury instructions in their entirety to determine if there was reversible error.
People v Chapo, 283 Mich App 360, 373; 770 NW2d 68 (2009). Reversal is required only when
the instruction requested is substantially correct, was not covered substantially in the given jury
instructions, and the trial court’s refusal to give the instruction seriously interfered with the
defendant’s ability to present a particular defense. People v Moldenhauer, 210 Mich App 158,
159-160; 533 NW2d 9 (1995). “To warrant reversal of a conviction, the defendant must show
that it is more probable than not that the failure to give the requested instruction undermined the
reliability of the verdict.” McMullan, 284 Mich App at 152.

       The jury instruction that defendant requested is entitled “Mere Presence Insufficient” and
provides:

               Even if the defendant knew that the alleged crime was planned or was
       being committed, the mere fact that [he / she] was present when it was committed
       is not enough to prove that [he / she] assisted in committing it. [M Crim JI 8.5.]

This jury instruction is intended to be used when a defendant is charged under an aider-and-
abettor theory. See M Crim JI 8.1, Reference Guide.

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        Defendant was not charged under an aider-or-abetter theory, but argues that he was
otherwise entitled to the instruction because his defense was that he did not know what
Wakeham was doing as he slept. The evidence suggested that defendant was not involved in the
manufacture of this particular batch of methamphetamine. The mere-presence instruction,
however, was not substantially correct in this case because the commission of the charged crimes
did not require defendant to manufacture methamphetamine personally, or even to be aware of
every single batch that was manufactured.

        Regarding defendant’s charge for operating or maintaining a methamphetamine
laboratory, the trial court correctly instructed the jury that the prosecutor’s burden was to prove
one of two theories beyond a reasonable doubt. The first theory required proving (1) that
defendant owned, possessed, or used the house; (2) that the property was used to manufacture
methamphetamine; (3) that defendant knew or had reason to know that the house was used to
manufacture methamphetamine; and (4) that the substance manufactured was methamphetamine.
The alternative theory required proving (1) that defendant owned or possessed any chemical or
laboratory equipment; (2) that defendant knew or had reason to know that the chemical or
laboratory equipment was to be used to manufacture methamphetamine; and (3) that the
controlled substance was methamphetamine. The trial court also explained that possession
meant that defendant had physical control or a right to control the property and that it “is not
enough if the Defendant merely knew about the chemicals or laboratory equipment.” With
regard to defendant’s charge for maintaining a drug house, the trial court instructed the jury that
the prosecutor had the burden to prove that defendant kept a dwelling that was frequented by
persons for the purpose of illegally using, storing, or selling controlled substances and that
defendant knew that the dwelling was frequented for one or more of those purposes.

        These instructions made clear that defendant’s presence in the house was insufficient to
convict defendant of the charged crimes. Rather, the jury was to convict defendant only on his
knowledge of the illegal activity and control over the instruments or locality of that activity.
Because the instructions sufficiently protected defendant’s right to put on his defense, the trial
court did not err by refusing to instruct the jury in accordance with M Crim JI 8.1.

       Affirmed.



                                                            /s/ Mark J. Cavanagh
                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Brock A. Swartzle




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