                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 26, 2016
               Plaintiff-Appellee/Cross-Appellant,

v                                                                  No. 325290
                                                                   Kalamazoo Circuit Court
ANTHONY RAMON TRICE,                                               LC No. 2014-000243-FH

               Defendant-Appellant/Cross-
               Appellee.


Before: SAAD, P.J., and BORRELLO and GADOLA, JJ.

PER CURIAM.

        A jury convicted defendant of possession of less than 50 grams of cocaine with intent to
deliver, MCL 333.7401(2)(a)(iv), and possession of marijuana, MCL 333.7403(2)(d). Defendant
was sentenced as a fourth-offense habitual offender, MCL 769.12, to two days in jail for each
conviction, with credit for two days, and to 48 months’ probation in the Swift and Sure Sanctions
program. Defendant appeals, and the prosecution cross-appeals. We affirm defendant’s
convictions but remand for further sentencing proceedings consistent with this opinion.

         On appeal, defendant claims that there was insufficient evidence for the jury to find him
guilty of possession of less than 50 grams of cocaine with intent to deliver. An appeal based on
the sufficiency of the evidence is reviewed de novo. People v Henderson, 306 Mich App 1, 8;
854 NW2d 234 (2014). When considering the sufficiency of the evidence, this Court views the
evidence in the light most favorable to the prosecution and determines whether a rational trier of
fact could find that the essential elements of the crime were proved beyond a reasonable doubt.
Id. at 8-9.

        The elements of possession of less than 50 grams of cocaine with intent to deliver
include: (1) the substance is cocaine, (2) it weighs less than 50 grams, (3) defendant was not
authorized to possess the cocaine, and (4) defendant knowingly possessed the cocaine with the
intent to deliver. People v Wolfe, 440 Mich 508, 516-517; 489 NW2d 748 (1992), mod 441
Mich 1201 (1992); see also MCL 333.7401(2)(a)(iv). “The element of knowing possession with
intent to deliver has two components: possession and intent.” People v McGhee, 268 Mich App
600, 622; 709 NW2d 595 (2005). “Possession with intent to deliver can be established by
circumstantial evidence and reasonable inferences arising from that evidence.” Wolfe, 440 Mich
at 526.

                                               -1-
         On appeal, defendant only challenges the jury’s finding that he knowingly possessed the
cocaine. In this case, the police received a tip indicating that defendant would be selling cocaine
and that the cocaine might be hidden in his pants. The evidence supported that while defendant
was being transported to the police station, he was heard moving quite a bit and kicking in the
back seat of the police car. Defendant was captured on the police car’s video making a gesture
that was consistent with him putting something out of the window of the police car. Upon
reviewing videos from his police car, the officer who transported defendant to jail concluded that
defendant’s movement occurred at the same location where a baggie containing 28 grams of
cocaine was found approximately one-half hour later. Furthermore, the cocaine was not visible
in the road in the images captured by the dashboard camera of the car transporting defendant to
jail, but was visible in the road in the images captured by the dashboard camera of a police car
that followed approximately two minutes later. On the basis of this evidence, the jury could
reasonably find that defendant had the cocaine hidden on his person when he was placed in the
police car, and that he then tossed it out of the window of the police car on the way to the police
station. Thus, although circumstantial, the evidence was sufficient to support the jury’s
conclusion that defendant possessed the cocaine. See People v Hardiman, 466 Mich 417, 423-
424; 646 NW2d 158 (2002); People v Chandler, 201 Mich App 611, 613; 506 NW2d 882
(1993).

        On cross-appeal, the prosecution claims that the trial court erred when it failed to state on
the record substantial and compelling reasons for its departure from the sentencing guidelines.
Subsequent to defendant’s sentencing, however, our Supreme Court held that Michigan’s
sentencing guidelines were advisory only and struck down “the requirement in MCL 769.34(3)
that a sentencing court that departs from the applicable guidelines range must articulate a
substantial and compelling reason for that departure.” People v Lockridge, 498 Mich 358, 364-
365; 870 NW2d 502 (2015). Thus, the prosecution’s claim that the trial court erred by failing to
state substantial and compelling reasons for its downward departure is no longer viable under
Michigan law. Id.; see People v Steanhouse, ___ Mich App ___; ___ NW2d ___ (Docket No
318329, issued October 22, 2015); slip op, p 21 n 14 (“Because a trial court is no longer required
to provide a substantial and compelling reason for a departure from the sentencing guidelines
under Lockridge, we need not review defendant’s argument specifically concerning whether the
reasons articulated by the trial court were substantial and compelling.”)

        In Lockridge, 498 Mich at 392, the Court stated that “[a] sentence that departs from the
applicable guidelines range will be reviewed by an appellate court for reasonableness.”
However, in Steanhouse, this Court recognized that Lockridge did not set out the appropriate
procedure for reviewing the reasonableness of a departure sentence. Steanhouse, ___ Mich App
at ___ (slip op at 21). As a result, the Steanhouse Court adopted the “principle of
proportionality” test that was in place under People v Milbourn, 435 Mich 630; 461 NW2d 1
(1990), and held “that a sentence that fulfills the principle of proportionality under Milbourn and
its progeny constitutes a reasonable sentence under Lockridge.” Steanhouse, ___ Mich App at
___ (slip op at 24). This Court later explained that

       [i]n a nutshell, Milbourn’s “principle of proportionality” requires a sentence “to
       be proportionate to the seriousness of the circumstances surrounding the offense
       and the offender.” Milbourn, 435 Mich at 636. [People v Masroor, ___ Mich


                                                -2-
       App ___; ___ NW2d ___ (Docket No 322280, issued November 24, 2015), slip
       op, p 7.]1


       This Court in Steanhouse set forth the following procedure that should be followed when
reviewing a defendant’s departure sentence:

               Given that Lockridge overturned the substantial and compelling reason
       standard, Lockridge, ___ Mich at ___; slip op at 29, which was in place at the
       time of defendant’s sentencing, and given our conclusion that the principle of
       proportionality established under Milbourn and its progeny is now the appropriate
       standard by which a defendant’s sentence should be reviewed, we also find that
       the procedure articulated in Lockridge, and modeled on that adopted in United
       States v Crosby, 397 F3d 103 (CA 2, 2005), should apply here. Lockridge, ___
       Mich at ___; slip op at 33-36. As recently stated by this Court in People v Stokes,
       ___ Mich App ___, ___; ___NW2d ___ ([Docket No. 321303, issued September
       8, 2015]); slip op at 11, “the purpose of a Crosby remand is to determine what
       effect Lockridge would have on the defendant’s sentence, so that it may be
       determined whether any prejudice resulted from the error.” While the Lockridge
       Court did not explicitly hold that the Crosby procedure applies under the
       circumstances of this case, we conclude this is the proper remedy where, as here,
       the trial court was unaware of and not expressly bound by a reasonableness
       standard rooted in the Milbourn principle of proportionality at the time of
       sentencing.

               Under the Crosby procedure, which “offers a measure of protection to a
       defendant[,]” “a defendant is provided with an opportunity ‘to avoid resentencing
       by promptly notifying the trial judge that resentencing will not be sought.’ ”
       Stokes, ___ Mich App at ___; slip op at 11-12, quoting Lockridge, ___ Mich
       at___; slip op at 35. Given the possibility that defendant could receive a more
       severe sentence, defendant should be provided the opportunity to avoid
       resentencing if that is his desire. Stokes, ___ Mich App at ___; slip op at 12.
       Accordingly, we remand the matter to the trial court to follow the Crosby
       procedure outlined in Lockridge. Defendant “may elect to forego resentencing by
       providing the trial court with prompt notice of his intention to do so. If
       ‘notification is not received in a timely manner,’ the trial court shall continue with
       the Crosby remand procedure as explained in Lockridge.” Stokes, ___ Mich App
       at ___; slip op at 12, quoting Lockridge, ___ Mich at ___; slip op at 35-36.
       [Steanhouse, ___Mich App at ___ (slip op at 25).]


1
  It should be noted that this Court in Masroor stated that it followed the decision in Steanhouse
only because it was required to do so under MCR 7.215(J)(1). Masroor, ___ Mich App at ___
(slip op at 1). The Masroor Court, if it were not bound by Steanhouse, would have applied the
federal reasonableness standard described in Gall v United States, 552 US 38, 46; 128 S Ct 586;
169 L Ed 2d 445 (2007). Masroor, ___ Mich App at ___ (slip op at 1).


                                                -3-
         In this case, as in Steanhouse, when the trial court sentenced defendant, it “was unaware
of and not expressly bound by a reasonableness standard rooted in the Milbourn principle of
proportionality.” Id. (slip op at 25). Thus, as directed by Steanhouse, we remand this case to the
trial court for a Crosby hearing. Because the prosecution is the party challenging the trial court’s
departure from the sentencing guidelines, on remand the prosecution—not defendant—may
“elect to forego resentencing” by providing the trial court with prompt notice of its intention to
do so. See id. (slip op at 25). If such notice is not received by the trial court in a timely manner,
it shall continue with the Crosby remand. Id. (slip op at 25). If resentencing occurs, the trial
court must “specifically justify the extent of any departure sentence the court may elect to
impose,” and “explain why the sentence imposed is proportionate to the seriousness of the
convicted offenses, taking into account defendant’s background and any mitigating factors
brought forward by counsel.” Masroor, ___ Mich App at ___ (slip op at 11).

       We affirm defendant’s convictions but remand for further sentencing proceedings
consistent with this opinion. We do not retain jurisdiction.



                                                              /s/ Henry William Saad
                                                              /s/ Stephen L. Borrello
                                                              /s/ Michael F. Gadola




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