            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 PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                       April 23, 2020
                Plaintiff-Appellee,

 v                                                                     No. 345262
                                                                       Oakland Circuit Court
 ANDRE LEROY JAMISON,                                                  LC No. 2017-263911-FH

                Defendant-Appellant.


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

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of possession with intent to deliver
50 or more but less than 450 grams of heroin, MCL 333.7401(2)(a)(iii); possession with intent to
deliver 450 or more but less than 1,000 grams of cocaine, MCL 333.7401(2)(a)(ii); possession
with intent to deliver marijuana, MCL 333.7401(2)(d)(iii); felon in possession of a firearm, MCL
750.224f; felon in possession of ammunition, MCL 750.224f(6); and five counts of possession of
a firearm during the commission of a felony, second offense, MCL 750.227b. The trial court
sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to concurrent prison terms
of 15 to 60 years for the possession with intent to deliver heroin conviction, 20 to 60 years for the
possession with intent to deliver cocaine conviction, and 3 to 15 years each for the possession with
intent to deliver marijuana and the felon-in-possession convictions, to be served consecutive to
five concurrent five-year terms of imprisonment for the felony-firearm convictions. Defendant
appeals as of right. We affirm.

        Defendant’s convictions arise from the discovery of drugs, firearms, and ammunition
during the execution of a search warrant at a Pontiac residence on June 6, 2017. The prosecution
presented evidence that, after conducting surveillance, members of the Oakland County Narcotics
Enforcement Team (“NET”) obtained a search warrant for 105 Pinegrove. On the day of the raid,
defendant was seen leaving the residence in a Ford Taurus. The police coordinated a traffic stop,
took defendant into custody, and, during a search, recovered some keys. The officers then
executed the search warrant for the house. The keys that were recovered from defendant provided
access to both the side door of the house and to a car with no tires inside the garage. Inside the
car, detectives found heroin, cocaine, drug-packaging materials, and items bearing defendant’s


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name. In other areas of the garage, the officers found additional items used to package drugs,
heroin, marijuana, two firearms, and ammunition. Inside the house, the detectives found
photographs of defendant, several items bearing defendant’s name with the Pinegrove address,
additional firearms, and more ammunition. The detectives also seized several cell phones. While
in jail, defendant made phone calls that included references to the search of the premises. At trial,
the defense disputed that defendant possessed the contraband found at 105 Pinegrove or had
knowledge that drugs were stored there. The defense argued that the NET detectives “set
[defendant] up” and planted the contraband at the residence.

                    I. DEFENDANT’S RIGHT TO PRESENT A DEFENSE

         Defendant argues that the trial court’s refusal to allow him to introduce evidence that he
had previously filed a civil lawsuit against two of the investigating detectives denied him his right
to present a defense and to cross-examine witnesses. While we agree that defendant should have
been allowed to introduce evidence of the civil lawsuit while, we find that the trial court’s abuse
of its discretion in precluding this evidence was not outcome determinative.

        A trial court’s decision to admit or exclude evidence is generally reviewed for an abuse of
discretion. People v Thorpe, 504 Mich 230, 251-252; 934 NW2d 693 (2019). “The decision to
admit evidence is within the trial court’s discretion and will not be disturbed unless that decision
falls outside the range of principled outcomes.” Id. at 252 (quotation marks and citation omitted.)
“A decision on a close evidentiary question ordinarily cannot be an abuse of discretion.” Id. We
review claims of constitutional error de novo. People v Harris, 499 Mich 332, 342; 885 NW2d
832 (2016).

        Defendant’s claims related to this issue involve a civil lawsuit that defendant previously
brought against the two primary detectives in this matter. In that lawsuit, defendant alleged that
during an unrelated traffic stop in 2011, the detectives assaulted him, he later sued them, and the
case was dismissed by settlement. Defendant argues that this evidence was relevant to show that
the detectives were motivated to investigate him and plant the contraband at the residence.

        Although a defendant has a constitutional right to present a defense, US Const, Am VI;
Const 1963, art 1 § 20, he must still comply with procedural and evidentiary rules established to
assure fairness and reliability in the verdict. See People v Hayes, 421 Mich 271, 279; 364 NW2d
635 (1984); People v Arenda, 416 Mich 1, 8; 330 NW2d 814 (1982). Relevant here, the Michigan
Rules of Evidence prohibit the admission of evidence that is not relevant. MRE 402. Evidence is
relevant if it has “any tendency 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.”
MRE 401. Evidentiary rules excluding evidence from trial “do not abridge an accused’s right to
present a defense so long as they are not arbitrary or disproportionate to the purposes they are
designed to serve.” People v Unger, 278 Mich App 210, 250; 749 NW2d 272 (2008) (quotation
marks and citation omitted.)

        The fact that the detectives assaulted defendant some years previously, in an unrelated
incident, and that defendant brought a civil lawsuit against them, could make it more probable than
not that the detectives could be biased against defendant, at the very least to the extent that they
were motivated to more closely observe defendant thereafter and watch for potential drug-

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trafficking activities. Where the detectives had been named in an assault lawsuit concerning
defendant and settled the matter with him could lead to their predisposition against defendant and
make him the target of investigation and surveillance to which he might not otherwise have been
subjected. Allowing the defense to elicit testimony and otherwise introduce evidence concerning
the civil lawsuit would not, as the trial court stated, lead to a “trial within a trial.” Rather, the
defense would simply be able to question the detectives concerning any bias they may have had
against defendant.

        However, while the trial court abused its discretion by excluding any reference to or
examination concerning this prior civil lawsuit, we do not find that this error was outcome
determinative. “A preserved error in the admission of evidence does not warrant reversal unless
after an examination of the entire cause, it shall affirmatively appear that it is more probable than
not that the error was outcome determinative.” People v Burns, 494 Mich 104, 110; 832 NW2d
738 (2013)(internal quotation marks omitted).

        At trial in this matter, when the police took defendant into custody, he had keys on his
person that provided access to both the house and to an inoperable car in the garage. Inside the
car, and on the premises, officers found more than 900 grams of cocaine, more than 100 grams of
heroin, nearly 400 grams of marijuana, drug-packaging materials, firearms, ammunition, and
numerous items bearing defendant’s name and connecting him to the premises. Given the quantity
of narcotics and the packaging materials found, there was significant evidence indicating
defendant’s guilt of the charged crimes. Had evidence concerning the prior lawsuit been allowed,
that evidence did not negate the fact that defendant was found with keys to the car and home in
which a significant quantity of drugs and drug-trafficking materials were found. Consequently,
defendant is not entitled to appellate relief with respect to this issue.

                                 II. OTHER-ACTS EVIDENCE

        Next, defendant argues that the trial court abused its discretion by admitting a portion of a
recorded jail call in which defendant referenced having previously been “caught with 70 grams on
his bike.” Defendant argues that this evidence was inadmissible under MRE 404(b)(1).

        “At its essence, MRE 404(b) is a rule of inclusion, allowing relevant other acts evidence
as long as it is not being admitted solely to demonstrate criminal propensity.” People v Martzke,
251 Mich App 282, 289; 651 NW2d 490 (2002); see also People v Mardlin, 487 Mich 609, 615;
790 NW2d 607 (2010). Although MRE 404(b)(1) prohibits “evidence of other crimes, wrongs, or
acts” to prove a defendant’s character or propensity to commit the charged crime, it permits such
evidence for other purposes, “such as proof of motive, opportunity, intent, preparation, scheme,
plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the
same is material.” People v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004). Other-acts evidence
is admissible under MRE 404(b)(1) if it is (1) offered for a proper purpose, i.e., one other than to
prove the defendant’s character or propensity to commit the crime, (2) relevant to an issue or fact
of consequence at trial, MRE 401, and (3) sufficiently probative to outweigh the danger of unfair
prejudice, under MRE 403. People v Starr, 457 Mich 490, 496-497; 577 NW2d 673 (1998);
People v VanderVliet, 444 Mich 52, 55, 63-64, 74-75; 508 NW2d 114 (1993), amended 445 Mich
1205 (1994). Further, although MRE 404(b)(1) provides examples of permissible uses of other-
acts evidence, the list is not exhaustive. People v Watson, 245 Mich App 572, 576-577; 629 NW2d

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411 (2001). The rule permits the admission of evidence of a defendant’s prior acts for any relevant
purpose that “does not risk impermissible inferences of character to conduct.” Id. at 576 (citation
omitted).

        In this case, the fact that defendant previously possessed a significant quantity of a
controlled substance was relevant to the prosecution’s theory that defendant was the owner of the
drugs and drug-packaging materials found in his residence in June 2017, and was engaged in a
scheme or system of drug trafficking. It also tended to weaken defendant’s theory of the case that
the police planted the evidence at his residence in June 2017. The evidence could thus be deemed
relevant for a proper purpose under MRE 404(b)(1).

        Nevertheless, the trial court did not engage in balancing the probative value and prejudicial
effect of the evidence as required by MRE 403. Under the balancing test of MRE 403, a court
must first decide if the other-acts evidence is unfairly prejudicial, and then “ ‘weigh the
probativeness or relevance of the evidence’ against the unfair prejudice” to determine whether any
prejudicial effect substantially outweighed the probative value of the evidence. People v Cameron,
291 Mich App 599, 611; 806 NW2d 371 (2011) (citation omitted). Also, the trial court did not
take any other measures to limit the potential for unfair prejudice, such as by providing a limiting
instruction regarding the evidence. These were errors on the trial court’s part. As with the
evidence concerning the prior lawsuit, though, because significant independent evidence
overwhelmingly established defendant’s guilt of the charged offenses it is not more probable than
not that the error was outcome determinative. People v Lukity, 460 Mich 484, 495-496; 596 NW2d
607 (1999). Accordingly, defendant is not entitled to reversal of his convictions on this basis.

       Affirmed.



                                                              /s/ Cynthia Diane Stephens
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Deborah A. Servitto




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