                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 15, 2017
               Plaintiff-Appellee,

v                                                                  No. 332955
                                                                   Branch Circuit Court
DOUGLAS EUGENE HUEY,                                               LC No. 15-091607-FH

               Defendant-Appellant.


Before: BOONSTRA, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.

PER CURIAM.

        Defendant appeals by right his conviction, following a jury trial, of maintaining or
operating a laboratory involving methamphetamine, MCL 333.7401c(2)(f). The trial court
sentenced defendant, as a fourth-offense habitual offender, MCL 769.12, to a prison term of 15
to 40 years with credit for 229 days served. We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        This case arises out of a traffic stop of defendant’s pickup truck and an attendant
consensual search of the vehicle. Defendant had driven Meghan Nelson1 to Walmart and waited
outside while she bought a box of cold medicine containing pseudoephedrine, a chemical
ingredient used to manufacture methamphetamine. Defendant then drove Nelson to Home
Depot. After entering the store with Nelson, defendant picked out a large bottle of drain cleaner
that also contained chemicals used to manufacture methamphetamine, and handed it to Nelson,
who paid for it. The purchases of the two items occurred within a time span of 12 minutes.

        After they left Home Depot, Michigan State Police Trooper Justin Reed pulled
defendant’s truck over for a faulty muffler. Sergeant David Crilly of the Coldwater Police
Department arrived to assist Reed. As he was pulling the vehicle over, defendant told Nelson to
hide the drain cleaner in her purse, and she did so. Defendant consented to a search of his truck,
whereupon Reed discovered the medicine containing pseudoephedrine sitting on or near


1
 Nelson was also charged in connection with this incident, but entered into a plea agreement
with the prosecution in return for her testimony at defendant’s trial.


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Nelson’s purse at a location inside the truck that had been accessible to both occupants. Crilly
discovered the drain cleaner inside of Nelson’s open purse. Defendant admitted to Reed that he
had driven Nelson to Walmart and Home Depot. He also admitted that he knew that
pseudoephedrine and drain cleaner were chemicals used to make methamphetamine and that he
knew how to make methamphetamine. Defendant further admitted that he had been in trouble
with methamphetamine in the past. However, defendant denied that the medicine and the drain
cleaner were his or that he was going to use them to make methamphetamine.

        Nelson initially told police that the medicine was for a cold and that the drain cleaner was
for a clogged drain at defendant’s house. She then changed her story and said that she knew that
the items were used to make methamphetamine and that she had bought them for defendant with
the intent of trading them for $50 worth of methamphetamine. She then reversed herself yet
again and told police that she was not buying the items for anyone. At trial, Nelson testified that
she had purchased the items to trade to defendant for methamphetamine, and that she frequently
engaged in similar transactions with defendant (in which she would buy ingredients for making
methamphetamine and then trade them to defendant for methamphetamine once he had
manufactured it). Nelson admitted at trial that she was testifying in accordance with a plea
agreement that she had reached with the prosecution.

       Defendant was convicted and sentenced as described. This appeal followed.

                            II. SUFFICIENCY OF THE EVIDENCE

        Defendant first argues that there was insufficient evidence to support his conviction.
Specifically, he argues that the evidence presented at trial was not sufficient to prove that he was
in possession of the pseudoephedrine or the drain cleaner, or that he knew that the chemicals
would be used to make methamphetamine. We disagree. We review de novo a challenge to the
sufficiency of the evidence. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002).
To the extent that defendant’s argument calls for statutory interpretation, it presents a question of
law that we also review de novo. People v Malone, 287 Mich App 648, 654; 792 NW2d 7
(2010).

        To sustain a conviction, due process requires that there be sufficient evidence to justify a
rational trier of fact in finding guilt beyond a reasonable doubt. People v Wolfe, 440 Mich 508,
513-514; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). We review challenges to the
sufficiency of the evidence by viewing the evidence in the light most favorable to the
prosecution to determine whether a rational trier of fact could find that the essential elements of
the crime were proven beyond a reasonable doubt. People v Bennett, 290 Mich App 465, 471-
472; 802 NW2d 627 (2010). In applying this standard, we “must draw all reasonable inferences
and make credibility choices in support of the jury verdict.” People v Cameron, 291 Mich App
599, 613; 806 NW2d 371 (2011) (quotation marks and citation omitted).

       MCL 333.7401c(1)(b) states in relevant part:

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


                                              * * *

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                 (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 . . . .[2]


        Possession may be actual or constructive, and it may also be joint or exclusive. People v
Johnson, 293 Mich App 79, 83; 808 NW2d 815 (2011). “A person has constructive possession if
he knowingly has the power and the intention at a given time to exercise dominion or control
over a thing, either directly or through another person or persons.” People v LaFountain, 495
Mich 968, 969; 844 NW2d 5 (2014). “Constructive possession exists when the totality of the
circumstances indicates a sufficient nexus between the defendant and the [contraband].” People
v Meshell, 265 Mich App 616, 622; 696 NW2d 754 (2005). Defendant’s “presence at the place
where the [contraband was] found is not sufficient, by itself, to prove constructive possession;
some additional link between the defendant and the contraband must be shown.” People v
Fetterley, 229 Mich App 511, 515; 583 NW2d 199 (1998). Possession is a question of fact, and
it can be proven by circumstantial evidence and reasonable inferences arising from the evidence.
People v Strickland, 293 Mich App 393, 400; 810 NW2d 660 (2011).

        We conclude that a rational jury could have concluded beyond a reasonable doubt that
defendant constructively possessed the pseudoephedrine and the drain cleaner. Nelson’s
testimony indicated that defendant exercised dominion or control over the pseudoephedrine and
the drain cleaner by having her purchase the chemicals for him and to be used by him. Nelson
also testified that defendant instructed her to place the drain cleaner in her purse as he was
stopping his vehicle. Reed testified that the pseudoephedrine was in or near the purse and was
accessible to both defendant and Nelson. The direct and circumstantial evidence in this case
demonstrates a sufficient nexus and link between defendant and the chemicals beyond mere
presence in the area where the contraband was found. Meshell, 265 Mich App at 622.
Therefore, the evidence was sufficient for the jury to conclude that defendant constructively
possessed the pseudoephedrine and the drain cleaner.

        Further, the evidence was sufficient for the jury to conclude that defendant knew that the
chemicals would be used to make methamphetamine. “[B]ecause it can be difficult to prove a
defendant’s state of mind on issues such as knowledge and intent, minimal circumstantial
evidence will suffice to establish the defendant’s state of mind, which can be inferred from all
the evidence presented.” People v Kanaan, 278 Mich App 594, 622; 751 NW2d 57 (2008).

         Nelson testified that she frequently purchased chemicals to make methamphetamine and
traded them to defendant for methamphetamine. She stated that whenever she purchased such
chemicals they “always” went to defendant with the knowledge and understanding that he would
use them to make methamphetamine. Nelson testified that she and defendant discussed going to
the store on the day of their arrest to get the ingredients to make methamphetamine. Nelson also
testified that her relationship with defendant almost exclusively revolved around
methamphetamine use. Defendant stated to Reed that he knew how to make methamphetamine


2
    Methamphetamine is a controlled substance. MCL 333.7214(c)(ii).


                                               -3-
and that pseudoephedrine and drain cleaner were ingredients used in making methamphetamine.
A reasonable juror could have inferred from the evidence presented that defendant knew or
should have known that the chemicals would be used to make methamphetamine.

       In viewing the evidence in a light most favorable to the prosecution and in drawing all
reasonable inferences in support of the jury’s verdict, we hold that the evidence was sufficient to
convict defendant of maintaining or operating a laboratory involving methamphetamine.
Bennett, 290 Mich App at 471-472.

                                    III. JURY INSTRUCTIONS

       Defendant next argues that the trial court erred by providing a jury instruction that did not
contain each element of the offense. We conclude that defendant waived the issue, and that even
if we were to examine it, we would find no error requiring reversal.

        Waiver means “the intentional relinquishment or abandonment of a known right.”
People v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011). “One who waives his rights
under a rule may not then seek appellate review of a claimed deprivation of those rights, for his
waiver has extinguished any error. When defense counsel clearly expresses satisfaction with a
trial court’s decision, counsel’s action will be deemed to constitute a waiver.” Id.

        In this case, before instructing the jury, the trial court noted that it went over the proposed
jury instructions with both parties present. The trial court then read the proposed jury
instructions into the record. When it was done, the trial court asked both parties if they agreed to
the instructions. Defense counsel stated, “We’re satisfied, Your Honor. No additions,
corrections, or deletions.” Then, after actually instructing the jury, the trial court asked defense
counsel, “[A]re you satisfied with the jury instructions?” Defense counsel responded, “Yes,
Your Honor.”

        Defense counsel clearly expressed satisfaction with the jury instructions, and therefore,
waived any issues regarding the jury instructions. Because defendant intentionally relinquished
or abandoned a known right, he cannot now seek appellate review of a claimed deprivation of
that right, as his waiver extinguished any error. See Kowalski, 489 Mich at 503-504.

       Even if we were to review the issue, however, we note that to the extent that defendant
argues that the jury should have been instructed that the prosecution must prove that
methamphetamine was actually manufactured, in order for the enhanced sentence provided in
MCL 333.7401c(2)(f) to apply, the argument is contrary to the plain language of the statute.

        The primary goal in construing a statute is to determine and give effect to the
Legislature’s intent. People v Gardner, 482 Mich 41, 50; 753 NW2d 78 (2008). The Legislature
is presumed to have intended the meaning it plainly expressed. Id. “The touchstone of
legislative intent is the statute’s language. If the statute’s language is clear and unambiguous, we
assume that the Legislature intended its plain meaning and we enforce the statute as written.” Id.
Statutory language should be construed reasonably and in context, keeping in mind the purpose
of the act. People v Droog, 282 Mich App 68, 70; 761 NW2d 822 (2009).



                                                 -4-
        Allegations under MCL 333.7401c(1)(b) require the prosecution to prove beyond a
reasonable doubt that the defendant owned or possessed a chemical and that he or she knew or
had reason to know that the chemical would be used to manufacture a controlled substance.
Under MCL 333.7401c(2)(f), a defendant’s sentence may be enhanced from 10 years to 20
years’ imprisonment if the violation of section (1)(b) involved or was intended to involve the
manufacture of methamphetamine. The Legislature’s use of the phrase “intended to involve”
demonstrates that manufacture of the drug need not be completed in order for the sentencing
enhancements to apply. That is, MCL 333.7401c(1)(b) and (2)(f) do not require proving that any
controlled substance was actually produced.

        Further, to the extent defendant argues that the jury instructions failed to properly instruct
the jury that they must find that defendant intended to produce methamphetamine, we disagree.
The jury was instructed that in order to convict defendant it must find, “First, that the Defendant
owned or possessed a chemical or laboratory equipment. Second, that the Defendant knew or
had reason to know that the chemical or laboratory equipment was going to be used to
manufacture methamphetamine.” We conclude that this instruction fairly presented the issues to
be tried and adequately protected defendant’s rights. Kowalski, 489 Mich at 501-502.

                                    IV. STANDARD 4 BRIEF

        Defendant filed a Standard 4 brief3 in this case. Defendant’s arguments regarding his
sentencing enhancement and the jury instructions are addressed in our response to the main
appeal. We further conclude that the prosecution did not commit misconduct in submitting the
jury instructions which were accepted by the trial court and defense counsel. People v Dobek,
274 Mich App 58, 63; 732 NW2d 546 (2007). And defendant’s trial counsel was not ineffective
in mounting a defense to the elements of the crime for which defendant was convicted, or in
approving the jury instructions submitted to the trial court. Strickland v Washington, 466 US
668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446 Mich 298, 311, 314; 521
NW2d 797 (1994).

       Affirmed.



                                                              /s/ Mark T. Boonstra
                                                              /s/ Amy Ronayne Krause
                                                              /s/ Brock A. Swartzle




3
 A brief filed in pro per by a criminal defendant on appeal pursuant to Michigan Supreme Court
Administrative Order 2004-6, Standard 4.


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