                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  December 21, 2017
              Plaintiff-Appellee,

v                                                                 No. 333859
                                                                  Gratiot Circuit Court
JAMES ROBERT COWDREY,                                             LC No. 16-007414-FH

              Defendant-Appellant.


Before: MURPHY, P.J., and M. J. KELLY and SWARTZLE, JJ.

PER CURIAM.

         Defendant, James Cowdrey, appeals as of right from his jury trial convictions of
operating or maintaining a methamphetamine laboratory, MCL 333.7401c(2)(f), second offense,
MCL 333.7413(2), and possession of methamphetamine, MCL 333.7403(2)(b)(i), second
offense, MCL 333.7413(2). Cowdrey was sentenced to serve concurrent prison terms of 8 to 40
years for the operation or maintenance of a methamphetamine conviction and 18 months to 20
years for the possession of methamphetamine conviction. Because there are no errors warranting
relief, we affirm.

                                      I. BASIC FACTS

        On January 18, 2016, Drew Criner purchased Coleman camping fuel in order to
manufacture methamphetamine with Cowdrey. Criner, however, purchased the wrong kind of
fuel, so he and Cowdrey returned it and then headed toward a different store to purchase the
correct kind. Unbeknownst to them, they were being observed by the police, who suspected that
they were involved in manufacturing methamphetamine. The police pulled them over, and
arrested Criner for driving without a valid driver’s license. Criner gave them consent to search
his truck, and the police discovered what they believed to be methamphetamine in a green tube
in the center console, as well as two trash bags containing suspected components used to make
methamphetamine. Inside the trash bags, the police discovered several pieces of mail addressed
to Cowdrey, coffee filters with white residue, a gas generator1 and “charred pieces of aluminum


1
 The record reflects that a gas generator is typically a 20 ounce bottle that is used when
manufacturing methamphetamine.


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foil,” which an officer testified were “aluminum canoes” typically used for smoking
methamphetamine. Additionally, the police found 59 empty blister packs, which they suspected
had contained pseudoephedrine.

        The police obtained a search warrant for Cowdrey’s home, where they discovered several
items used for manufacturing methamphetamine. In the kitchen, they located lye, fertilizer,
coffee filters without a coffee maker, and Coleman camping fuel. In the living room, they
discovered lithium batteries, which were another essential component. In Cowdrey’s bedroom,
they discovered a resealable plastic bag containing 20 pseudoephedrine tablets, as well as a paper
bindle containing methamphetamine.

        Cowdrey waived his Miranda rights and gave a statement to the police. According to the
interviewing officer, Cowdrey stated “that he cooked about twice a month inside of a corn crib
on his property or in his kitchen, while it was being ventilated.” The officer also testified that
Cowdrey told him that the trash bags found in the bed of Criner’s truck came from Cowdrey’s
residence. Finally, the officer testified that Cowdrey stated that he used Coleman camping fuel
and fertilizer to manufacture methamphetamine.

                                II. INEFFECTIVE ASSISTANCE

                                  A. STANDARD OF REVIEW

        Cowdrey argues that he was denied the effective assistance of a lawyer because his trial
lawyer called the individual who performed a limited methamphetamine assessment on
Cowdrey’s house instead of the lab technician that analyzed the results of the assessment.
Cowdrey preserved this issue by moving in this Court for a remand for a Ginther2 hearing, which
we granted.3 Following the hearing, the trial court denied Cowdrey’s motion for new trial based
on ineffective assistance. The court found that Cowdrey had failed to establish that his lawyer’s
performance was deficient and that, even if he had, he had not established outcome determinative
error. Claims that a trial lawyer provided ineffective assistance present a mixed question of law
and fact. People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). We review for clear
error the court’s findings of fact, and we review de novo the constitutional issues arising from
the ineffective assistance claim. Id.

                                          B. ANALYSIS

        In order to establish error warranting relief, Cowdrey must show that his lawyer's
decision fell below an objective standard of reasonableness under prevailing professional norms
and that there is a reasonable probability that, but for the unprofessional error, the outcome of his
trial would have been different. People v Gioglio (On Remand), 296 Mich App 12, 21-22; 815
NW2d 589 (2012), remanded for resentencing 493 Mich 864. Cowdrey asserts that his lawyer’s


2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
3
 People v Cowdrey, unpublished order of the Michigan Court of Appeals, entered December 21,
2016 (Docket No. 333895).


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performance was deficient because she subpoenaed the individual who performed the assessment
at Cowdrey’s house rather than the lab technician that analyzed the samples that were collected.
Because the lab technician did not testify at trial, the lab results were inadmissible. See generally
People v McDaniel, 469 Mich 409, 410-414; 670 NW2d 659 (2003) (indicating that in order to
admit a laboratory report as evidence, the person who performs the analysis must testify).
Cowdrey contends that if the laboratory report had been admitted, it would have shown that an
undetectable amount of methamphetamine was found in the kitchen. On this record, it appears
that there was no strategic reason for calling the assessor rather than the laboratory technician.

        However, Cowdrey cannot establish the second prong of ineffective assistance because
he cannot show that the error was outcome determinative. Gioglio, 296 Mich App at 22. The
police located trash bags containing components necessary for methamphetamine production,
including a gas generator, empty pseudoephedrine blister packs, and coffee filters with white
residue. Cowdrey told the police that the bags came from his house, and there was mail
addressed to him inside the bags. Additionally, inside Cowdrey’s home the police found
components essential for manufacturing methamphetamine, including lye, fertilizer, lithium
batteries and Coleman fuel. Finally, Cowdrey confessed that he had cooked methamphetamine
in his kitchen as well as in the corn crib.            Cowdrey’s admission that he cooked
methamphetamine in the corn crib tends to lessen the impact of the laboratory report, because
samples were taken from the house, not the corn crib. Further, Cowdrey stated that he ventilated
the kitchen when he cooked methamphetamine, and there was testimony at trial that such
ventilation could have had an effect on the amount of methamphetamine found in the sample. In
sum, the jury was presented with a wealth of evidence showing that Cowdrey manufactured
methamphetamine. On this record, Cowdrey has not established that there was a reasonable
probability that the outcome of his trial would have been different but for his lawyer’s
unprofessional error. See id.

       Affirmed.

                                                              /s/ William B. Murphy
                                                              /s/ Michael J. Kelly
                                                              /s/ Brock A. Swartzle




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