                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    May 19, 2015
               Plaintiff-Appellee,

v                                                                   No. 320069
                                                                    Wayne Circuit Court
MICHAEL LANDERS,                                                    LC No. 13-005323-FC

               Defendant-Appellant.


Before: RIORDAN, P.J., and JANSEN and FORT HOOD, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of possession of 1,000 or more
grams of cocaine, MCL 333.7403(2)(a)(i), and possession with intent to deliver less than 5
kilograms of marijuana, MCL 333.7401(2)(d)(iii). Defendant was sentenced to 15 to 30 years
for possession of cocaine and four to eight years for possession with intent to deliver marijuana.
We affirm defendant’s convictions but remand to the trial court for a determination of the factual
basis for the court costs imposed.

                                I. FACTUAL BACKGROUND

        A Detroit Police Officer received a tip from a confidential informant that narcotics were
being sold at a residence on Waltham Street in Detroit, Michigan. The officer proceeded to the
location and observed the residence. He saw nine different men go into the house and leave only
10 to 15 seconds after initially entering. He also saw defendant come out of the house and walk
onto the front porch. A man approached defendant and exchanged money for a small, palm-
sized object. Believing this to be a narcotics transaction, the officer obtained a search warrant.

       Several days later, police officers arrived at the residence to execute the search warrant.
They entered the residence and discovered several people in the house. Three of the officers saw
defendant leave the bathroom and enter the hallway. They searched him and found $201 on him
and a key that fit the lock to the front door of the house. They also found an item of mail in the
kitchen that was addressed to defendant at the house that was being searched.

        During the search, the police officers also searched the bathroom and noticed that the lid
of the toilet tank was askew. An officer lifted up the lid and discovered cocaine in the tank. It
was separated into four large pieces in four plastic bags. The four plastic bags were all inside of
one larger plastic bag. The street value of the cocaine was approximately $40,000. The police

                                                -1-
also discovered marijuana in a cigar box on the kitchen table. The marijuana was packaged in
Ziploc bags and plastic vials.

        A friend of defendant’s testified that he had purchased marijuana from defendant, but that
he had never seen defendant sell or handle cocaine. Defendant testified that he did not live at the
Waltham house and only sold marijuana from the house.1 Defendant denied selling cocaine and
disavowed any knowledge of the cocaine the police recovered from the house. He also testified
that he let the police officers into the house, and that he did not come from the bathroom.

      Defendant was convicted of possession of 1,000 or more grams of cocaine, MCL
333.7403(2)(a)(i), and possession with intent to deliver less than 5 kilograms of marijuana, MCL
333.7401(2)(d)(iii). Defendant now appeals.

                            II. SUFFICIENCY OF THE EVIDENCE

                                 A. STANDARD OF REVIEW

       We review de novo a challenge to the sufficiency of the evidence. People v Ericksen,
288 Mich App 192, 195; 793 NW2d 120 (2010). “In determining whether the prosecutor has
presented sufficient evidence to sustain a conviction, an appellate court is required to take the
evidence in the light most favorable to the prosecutor” to ascertain “whether a rational trier of
fact could find the defendant guilty beyond a reasonable doubt.” People v Tennyson, 487 Mich
730, 735; 790 NW2d 354 (2010) (quotation marks and citations omitted). We resolve conflicts
of the evidence in favor of the prosecution, “and we will not interfere with the jury’s
determinations regarding the weight of the evidence and the credibility of the witnesses.” People
v Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008). Circumstantial evidence and
reasonable inferences arising therefrom can constitute sufficient proof of the elements of a crime.
People v Allen, 201 Mich App 98, 100; 505 NW2d 869 (1993).

                                         B. ANALYSIS

       Defendant challenges only the sufficiency of the evidence for the possession of cocaine
conviction. To prove that crime, the prosecution had to present sufficient evidence that
defendant knowingly or intentionally possessed cocaine in a mixture that weighed at least 1,000
grams. MCL 333.7403(2)(a)(i).

        “The element of possession in defendant’s charge[] requires a showing of dominion or
right of control over the drug with knowledge of its presence and character.” People v
McKinney, 258 Mich App 157, 165; 670 NW2d 254 (2003) (quotation marks and citation
omitted). Possession can be actual or constructive, as well as joint or exclusive. Id. at 166. The
central requirement is that the defendant exercised dominion or control over the substance. Id.


1
  Defendant testified that the mail found at the house was there because he was attempting to
receive food stamps and Medicaid, and since his wife receives food stamps at what he claimed
was his real residence, he was not able to use that address on his applications.


                                                -2-
“Constructive possession exists when the totality of the circumstances indicates a sufficient
nexus between the defendant and the controlled substance.” People v Cohen, 294 Mich App 70,
76-77; 816 NW2d 474 (2011) (quotation marks and citation omitted). While mere presence may
be insufficient to prove possession, “[c]lose proximity to contraband in plain view is evidence of
possession.” Id. at 77; People v Echavarria, 233 Mich App 356, 370; 592 NW2d 737 (1999).

        There is sufficient evidence that defendant possessed the cocaine. Three police officers
saw defendant exit the bathroom. They detained defendant when they entered the house and
searched the bathroom. The police then noticed that the lid to the tank of the toilet was askew
and they subsequently discovered a large amount of cocaine in the tank, separated into four
plastic bags. Given defendant’s exclusive presence in the bathroom with the cocaine when the
police entered, and the suspiciously askew toilet lid, there was sufficient circumstantial evidence
that defendant had knowledge of the drug’s presence.

       Further, there was sufficient evidence that defendant had the right to exercise dominion
or control over the cocaine. Although there were several people in the house at the time of the
search, they were in the kitchen. The cocaine was discovered in the tank of the toilet,
immediately after defendant exited the bathroom. Additionally, the police discovered a letter in
the house that was addressed to defendant at the residence.2 Defendant also had a key on his
person, which fit the lock of the front door of the house. Defendant’s friend verified that
defendant was at the house constantly, and defendant admitted that he sold marijuana out of the
residence. Thus, there was sufficient evidence that defendant had the right to exercise dominion
or control over the cocaine. Therefore, defendant’s conviction is supported with sufficient
evidence.

                                       III. COURT COSTS

                                 A. STANDARD OF REVIEW

       Defendant next contends that the trial court improperly imposed court costs. This Court
reviews de novo an issue of statutory interpretation. People v Konopka, __Mich App__;
__NW2d__ (Docket No. 319913, issued March 3, 2015); slip op at 6.

                                  B. LEGAL BACKGROUND

       Defendant contends that the trial court did not have the authority to impose costs in this
case and that the costs imposed were arbitrary. We agree, in part.

       At the time defendant committed the crimes and at his sentencing, MCL 769.1k provided
that the court may impose “[a]ny cost in addition to the minimum state cost set forth in
subdivision (a).” MCL 769.1k(1)(b)(ii). In interpreting this language, the Michigan Supreme


2
  Although defendant references other mail in the house, no other mail was entered into
evidence, and a police officer testified that she believed the letter addressed to defendant was the
only mail on the kitchen table.


                                                -3-
Court in People v Cunningham, 496 Mich 145, 154; 852 NW2d 118 (2014), held that the statute
“does not provide courts with the independent authority to impose ‘any cost.’ ” Id. Rather, the
Court found that trial courts are authorized “to impose only those costs that the Legislature has
separately authorized by statute.” Id.

        Nevertheless, the Legislature subsequently passed 2014 PA 352, which amended the
language of the statute. The amendment was given immediate effect as of October 17, 2014,
which occurred during the pendency of this appeal. The statute now provides that the court may
impose “any cost reasonably related to the actual costs incurred by the trial court without
separately calculating those costs involved in the particular case[.]” MCL 769.1k(1)(b)(iii).
Further, Enacting Section 1 of the amendment provides, “This amendatory act applies to all
fines, costs, and assessments ordered or assessed under section 1k of chapter IX of the code of
criminal procedure, 1927 PA 175, MCL 769.1k, before June 18, 2014, and after the effective
date of this amendatory act.” Enacting Section 2 provides, “This amendatory act is a curative
measure that addresses the authority of courts to impose costs under section 1k of chapter IX of
the code of criminal procedure, 1927 PA 175, MCL 769.1k, before the issuance of the supreme
court opinion in People v Cunningham, 496 Mich 145 (2014).”

        In Konopka, we addressed the impact of the amendments in the context of Cunningham,
and most notably the added language in MCL 769.1k(1)(b)(iii). We concluded that the amended
statute applies in cases pending on appeal when the amendment was adopted, and when the costs
and assessments were incurred before June 18, 2014. Konopka, __ Mich App at__; slip op at 6.
We also recognized that “[w]hen a new law makes clear that it is retroactive, an appellate court
must apply that law in reviewing judgments still on appeal that were rendered before the law was
enacted, and must alter the outcome accordingly.” Id.; slip op at 6 (quotation marks and citations
omitted).3

       Ultimately, we concluded that “[t]he amended version of MCL 769.1k(1)(b)(iii) provides
for an award of certain costs that are not independently authorized by the statute for the
sentencing offense[.]” Konopka, __ Mich App at __; slip op at 6 (emphasis in original). In other
words, we found that the MCL 769.1k(1)(b)(iii) authorizes trial courts to impose costs
independent of the statute for the sentencing offense. Id. at __; slip op at 7.

         However, we also found that the trial court in Konopka “did not establish a factual basis”
for the fee imposed in that case. Id. at __; slip op at 8. Thus, we were unable to “determine
whether the costs imposed were reasonably related to the actual costs, as required by MCL
769.1k(1)(b)(iii).” Id. at __; slip op at 7-8. We explained that even though the trial court need
not separately calculate the costs involved in a particular case, “defendant should be given the
opportunity to challenge the reasonableness of the costs below” and the trial court should
“establish a factual basis” for the costs imposed. Id. at __; slip op at 2, 8. Because the trial court
failed to do that, we remanded for the trial court to establish a factual basis for the costs imposed
in that case. Id. at __; slip op at 8.


3
 We also found that the amendments did not violate the separation of powers, equal protections,
substantive due process, or the ex post factor clauses. Id. at __; slip op at 8-16.


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                               C. APPLICATION IN THIS CASE

        In light of Konopka, supra, we find that the trial court had the authority to impose costs
in this case. However, defendant also contends that the court costs were arbitrary. The trial
court did not explain the factual basis for the court costs imposed and it is not clear from the
record whether the court costs were reasonably related to the actual costs of this case. See
Konopka, ___ Mich App at ___; slip op at 6-7.

        Thus, as in Konopka, this Court is unable to “determine whether the costs imposed were
reasonably related to the actual costs, as required by MCL 769.1k(b)(iii)” and defendant “should
be given the opportunity to challenge the reasonableness of the costs below.” __ Mich App at
___; slip op at 8, citing People v Sanders, 296 Mich App 710, 715; 825 NW2d 87 (2012).
Accordingly, we remand this case “to the trial court for further proceedings to establish a factual
basis for the . . . costs imposed, under MCL 769.1k(1)(b)(iii), or to alter [the amount imposed], if
appropriate.” Konopka, __ Mich App at ___; slip op at 8.

                               IV. CONFRONTATION CLAUSE

                                  A. STANDARD OF REVIEW

         In his Standard 4 brief, defendant contends that he was denied a fair trial and the right to
confront a witness against him when a police officer testified that he found out about the narcotic
sales from a confidential informant. Because defendant did not object to the officer’s testimony
at trial, these challenges are unpreserved. People v Henry (After Remand), 305 Mich App 127,
152; 854 NW2d 114 (2014). Our review is for plain error affecting substantial rights. People v
Carines, 460 Mich 750, 764-765; 597 NW2d 130 (1999).

                                          B. ANALYSIS

        The disputed evidence regarding the confidential informant was solicited during the
direct examination of a police officer, in the following exchange:

               Q. How did you know to go to that location?

              A. I received information from a confidential informant of narcotics being
       sold out of that location.

             Q. Do you recall about what time you got that information, was that the
       same day or a different day?

               A. That was a different day.

Then, during cross-examination, the officer testified as follows:

               Q. And with regard to your confidential informant which was the basis of
       -- other than your observations also the basis of your affidavit, correct?

               A. Yes.

                                                -5-
Lastly, during closing argument, the prosecution stated:

              Now let’s talk about the facts in this case. [The police officer] got
       information that drugs were -- that a drug location was going on at this address.
       He goes to the address on Waltham Street and within 45 minutes he sees seven, I
       believe he said seven narcotics transactions, seven or nine narcotics transactions.

              He’s an experienced officer and he knew what he was seeing there. He
       goes and he gets a search warrant. He gets a search warrant, they come back and
       they execute the search warrant. . . .

        “The Confrontation Clause of the United States Constitution provides that ‘[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted by the witnesses
against him[.]’ The Michigan Constitution also affords a defendant this right of confrontation.”
Henry (After Remand), 305 Mich App at 153 (internal quotation omitted). Generally, a
testimonial statement may not be introduced against the accused at trial unless the witness is
unavailable and the defendant had a prior opportunity to confront the witness. Id. A statement
from a confidential informant to the police generally is a testimonial statement. People v
Chambers, 277 Mich App 1, 10; 742 NW2d 610, 616 (2007). However, if the out-of-court
testimonial statement is offered for purposes other than establishing the truth of the matter
asserted, then the Confrontation Clause does not bar the use of that statement at trial. Id. at 10-
11. “Thus, a statement offered to show the effect of the out-of-court statement on the hearer
does not violate the Confrontation Clause. Specifically, a statement offered to show why police
officers acted as they did is not hearsay.” Id. at 11.

        Here, the evidence properly was confined to the officer’s explanation of why he
proceeded to the house that was the subject of the search warrant and the reason for conducting
his own surveillance of the residence. No further detail was solicited or offered regarding the
confidential informant. Moreover, the prosecution’s reference to the confidential informant
during closing argument only communicated that the informant provided the basis for the
surveillance of the residence. Thus, the evidence was appropriately “limited to show why [the
officer] proceeded in a certain direction with his investigation.” Henry (After Remand), 305
Mich App at 15. Defendant was not denied his right to be confronted with the witness against
him. Chambers, 277 Mich App at 10-11.4

        Furthermore, defendant has not shown that any error was outcome determinative.
Defendant admitted that he was a marijuana dealer, and marijuana packaged for sale was
confiscated from the house. The marijuana weighed 29.34 grams. Thus, there was
overwhelming evidence of defendant’s guilt with regard to possession with intent to deliver less
than 5 kilograms of marijuana.


4
  Although defendant claims that these “statements” were hearsay, it is not clear what statements
he is referring to, as the officer did not actually divulge any specific statements the confidential
informant may have given. Moreover, because any such statements were not offered for the
truth of the matter asserted, defendant’s argument is meritless.


                                                -6-
        In regard to the cocaine conviction, the officers saw defendant leave the bathroom
immediately upon their entry to this house. When they searched the bathroom, police discovered
that the lid to the toilet tank was askew, and a significant amount of cocaine was in the tank. The
cocaine weighed 1,335.28 grams. Defendant had a key to the house, and his mail was discovered
with the residence’s address. In addition, evidence from the confidential informant did not in
any way implicate defendant. In fact, the confidential informant merely informed the police that
someone was selling drugs at the house. In light of the significant evidence of defendant’s guilt,
and the relatively limited inculpatory evidence derived from the confidential informant, we
cannot say that any error in the admission of the latter was outcome determinative. Carines, 460
Mich at 763.

        We also find that any objection to this evidence would have been futile. Defense counsel
is not ineffective for failing to raise a futile objection or advance a meritless position. Ericksen,
288 Mich App at 201. Thus, defendant is not entitled to relief based on a claim of ineffective
assistance of counsel.

                                        V. CONCLUSION

        Defendant’s convictions were supported with sufficient evidence, and the admission of
evidence regarding the confidential informant did not violate his right to a fair trial or to confront
the witnesses against him. However, consistent with Konopka, supra, we remand this case for
further proceedings to establish the factual basis for the amount of court costs imposed. MCL
769.1k(1)(b)(iii). We do not retain jurisdiction.




                                                              /s/ Michael J. Riordan
                                                              /s/ Kathleen Jansen
                                                              /s/ Karen M. Fort Hood




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