                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     November 10, 2015
               Plaintiff-Appellee,

v                                                                    No. 323514
                                                                     Oakland Circuit Court
DWAYNE BAILEY LEWIS,                                                 LC No. 2014-249480-FH

               Defendant-Appellant.


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

PER CURIAM.

        Defendant appeals as of right his jury trial conviction of possession with intent to deliver
less than 50 grams of heroin within 1,000 feet of school property, MCL 333.7410(3). Defendant
was sentenced, as a fourth habitual offender, MCL 769.12, to 2 to 40 years’ imprisonment. We
affirm.

                                            I. FACTS

        On January 10, 2014, approximately 10 members of the Oakland County Narcotics
Enforcement Team of the Oakland County Sheriff’s Department (NET) arrived at 18 Allison in
Pontiac, Michigan in order to execute a search warrant. The officers broke down the door of the
home after receiving no response to the knocking and announcing of their presence. Upon entry
into the home, the officers observed defendant lying on a couch in the living room of the
residence. The officers observed that defendant was not wearing any shoes and that a pair of
white Nike shoes was at the end of the couch near defendant’s feet. One of the members of the
search team, Detective Charles Janczarek, picked up the shoes and began searching them.
Janczarek’s search uncovered 39 separate pieces of lottery tickets. Within each piece of lottery
ticket was 1/10 of a gram of heroin. Janczarek also discovered approximately $770 located on the
coffee table of the living room and on defendant’s person, and also uncovered multiple letters
addressed to defendant at 18 Allison.

       After arresting defendant, the officers continued to search the residence. Detective Dan
Main, the officer-in-charge of the case, conducted a search of the kitchen. Upon opening a
kitchen drawer, Main found plastic sandwich bags, whole lottery tickets, and lottery tickets that
had been cut up in several smaller pieces. Main testified at trial that heroin is commonly
packaged and sold in pieces of lottery tickets. Main also searched the kitchen cabinets and
discovered a digital scale located in one of the lower cabinets.
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        Officers then brought defendant into the kitchen to be questioned by Main. After reading
defendant his Miranda1 warnings and receiving a waiver of his Fifth Amendment right against
self-incrimination from defendant, Main began questioning defendant about the heroin found in
the home. Defendant initially denied having any knowledge of any illegal activity within the
home. Main then questioned the truthfulness of defendant’s denial, at which point defendant
admitted that there were 30 to 40 packs of heroin in the home. This number matched the 39
packs of heroin that were found in the white Nike shoes. At trial, defendant denied waiving his
Fifth Amendment right and stated that he was simply telling Main what he wanted to hear in
order to receive better treatment. Defendant also testified that the white Nike shoes in which the
heroin was found did not belong to him, but during trial defendant admitted that he was wearing
the same pair of white Nike shoes that were the subject of the search.

                                         II. ANALYSIS

        Defendant first argues that there was insufficient evidence to prove beyond a reasonable
doubt that he constructively possessed the heroin found in the residence. When reviewing a
claim of insufficient evidence, this Court reviews the record de novo. People v Mayhew, 236
Mich App 112, 124; 600 NW2d 370 (1999). This Court reviews the evidence in the light most
favorable to the prosecutor and determines whether a rational trier of fact could find that the
essential elements of the crime were proven beyond a reasonable doubt. People v Johnson, 460
Mich 720, 723; 597 NW2d 73 (1999).

        MCL 333.7410(3) prohibits “possessing with intent to deliver to another person on or
within 1,000 feet of school property or a library a controlled substance.” “Proof of possession of
a controlled substance requires a showing of ‘dominion or right of control over the drug with
knowledge of its presence and character.’ ” People v Meshell, 265 Mich App 616, 621; 696
NW2d 754 (2005) (citation omitted). A defendant’s possession of a controlled substance must
be either actual or constructive. Id. at 622. “[T]he defendant’s mere presence where the
controlled substance was found is not sufficient to establish possession; rather, an additional
connection between the defendant and the controlled substance must be established.” Id.
“Constructive possession exists when the totality of the circumstances indicates a sufficient
nexus between the defendant and the controlled substance.” Id.

       There is sufficient evidence in the record for a rational jury to conclude beyond a
reasonable doubt that defendant had knowledge of the presence of the heroin and of its character.
The prosecution presented direct evidence of defendant’s knowledge of the heroin in the form of
Main’s testimony. Main testified that when he questioned defendant in the kitchen of the
residence, defendant initially denied having any knowledge of the presence of heroin. However,
upon further questioning, defendant admitted to Main that there were “30 or 40 packs” of heroin
located within the residence, similar to the number of heroin packs that were discovered in the
white Nike shoes found in the home.




1
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


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       Defendant argues against the credibility of Main’s testimony given the lack of a written
admission or any other corroborating evidence. However, it is well-settled that “it is the
province of the jury to determine questions of fact and assess the credibility of witnesses.”
People v Lemmon, 456 Mich 625, 637; 576 NW2d 129 (1998). There is also substantial
circumstantial evidence in the record to prove defendant’s knowledge of the heroin’s presence
and of its character. Janczarek testified that defendant was lying shoeless on the couch of the
residence while the white Nike shoes containing the heroin were next to his feet at the end of the
couch. While defendant claims that the shoes did not belong to him, the record indicates that
defendant wore those exact shoes while testifying at trial.

         There is also sufficient evidence in the record for a rational jury to conclude beyond a
reasonable doubt that defendant had the right to control the heroin. As stated above, Main
testified that defendant admitted to possessing the heroin with the intent to deliver it. This is
direct evidence of defendant’s right to control the heroin. While defendant argues against
Main’s credibility, “a reviewing court is required to draw all reasonable inferences and make
credibility choices in support of the jury verdict.” Meshell, 265 Mich App at 621.

        In addition to Main’s testimony, there is a significant amount of circumstantial evidence
indicating that defendant had the right to control the heroin found in the residence. While
defendant’s presence in the home is insufficient in and of itself to prove control, the requisite
“additional connection” between defendant and the heroin is present. Id. at 622. Testimony by
Janczarek and Main indicated that the heroin was located in a pair of white Nike shoes located
next to defendant’s feet as he lay on the couch, and these same shoes were worn by defendant
during trial. Janczarek also testified that defendant was the sole occupant of the home at the time
of the search and that $770 was found on defendant’s person and on the coffee table next to him.
Additionally, the presence of a digital scale, whole and cut up lottery tickets, and plastic
sandwich bags supports the inference that defendant constructively possessed the heroin for
purposes of distribution. Taken together, these facts create a “sufficient nexus between
defendant and the controlled substance.” Id.

         The letters addressed to defendant at the residence also demonstrate his ability to control
its contents. See People v Hardiman, 466 Mich 417; 646 NW2d 158 (2002). Like in Hardiman,
there were multiple letters found addressed to defendant at 18 Allison. Defendant argues that
these letters “fall short of showing that he [defendant] had exclusive possession of the house and
all its contents.” While defendant is correct that the letters standing alone do not demonstrate
exclusive possession of the home, there is no requirement that the prosecution prove exclusive
possession of the home in order to prove possession of the heroin. In sum, a rational jury could
find that there was sufficient evidence to prove beyond a reasonable doubt that defendant
possessed heroin within 1,000 feet of school property.

       Defendant next argues that there was insufficient evidence to prove beyond a reasonable
doubt that he intended to deliver the heroin found at the residence.

        The Michigan Supreme Court has held that in order to obtain a conviction for possession
with intent to deliver, the prosecution must prove the following beyond a reasonable doubt: (1)
that the recovered substance is a narcotic; (2) the weight of the substance; (3) the defendant was
not authorized to possess the substance; and (4) the defendant knowingly possessed the narcotic

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with the intent to deliver. People v Wolfe, 440 Mich 508, 516-517; 489 NW2d 748 (1992)
(quotation marks and citation omitted). “[A]ctual delivery of narcotics is not required to prove
intent to deliver. Intent to deliver has been inferred from the quantity of narcotics in a
defendant's possession, from the way in which those narcotics are packaged, and from other
circumstances surrounding the arrest.” Id. at 524. “[P]ossession with intent to distribute an
illegal substance requires the specific intent to distribute.” People v McGhee, 268 Mich App
600, 610; 709 NW2d 595 (2005).

        There was sufficient evidence in the record for a reasonable jury to conclude that
defendant possessed the heroin with the intent to deliver. Main testified that defendant admitted
to possessing the heroin with the specific intent to deliver it to others. While defendant disputed
this claim in his testimony, all credibility assessments are to be left to the jury. Lemmon, 456
Mich at 637.

        In any event, a defendant’s intent to deliver may be inferred from circumstantial
evidence. Wolfe, 440 Mich at 524. In defendant’s case, the jury was presented with evidence
that 39 separate 1/10 gram packets of heroin were found packaged in lottery tickets within white
Nike shoes found by defendant’s feet. Main testified that, based upon his extensive experience
as an undercover officer, this quantity and type of packaging was much more indicative of
distribution than personal use. In addition, the officers discovered a digital scale, whole and cut
up lottery tickets, and plastic sandwich bags in the kitchen of the residence in addition to the
large amount of cash found on and near defendant. Main testified that lottery tickets are
commonly used to package heroin for delivery to others. The existence of both whole and cut up
lottery tickets, a digital scale and plastic sandwich bags allowed an inference that the house was
being used by defendant as a place to prepare heroin for distribution.

        Defendant argues, citing People v Delongchamps, 103 Mich App 151; 302 NW2d 626
(1981), that the amount of heroin found at the residence was relatively small and therefore was
consistent with personal use. Defendant contrasts the 43 pounds of marijuana found in
Delongchamps with the approximately 3.9 grams of heroin found in this case. However, the
Court in Wolfe was clear that the quantity of narcotics found is not the only factor to consider.
The Court also held that the packaging of the narcotics as well as other surrounding
circumstances should be considered. Here, the heroin was packaged in 39 separate lottery
tickets, large amounts of cash were found on and near defendant, and there was a digital scale
and other packaging materials on the premises. In sum, there was sufficient evidence for a
rational jury to conclude beyond a reasonable doubt that defendant possessed the heroin found at
the residence with the requisite intent to deliver it.

       Affirmed.



                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Christopher M. Murray




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