                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  May 16, 2017
              Plaintiff-Appellee,

v                                                                 No. 332956
                                                                  Luce Circuit Court
KAY MARGARET OBERLE,                                              LC No. 15-001257-FH

              Defendant-Appellant.


Before: SAWYER, P.J., and MURRAY and GLEICHER, JJ.

PER CURIAM.

        Defendant was convicted following a jury trial of conspiracy to operate or maintain a
methamphetamine laboratory, MCL 333.7401c(2)(f), MCL 750.157a; operating or maintaining a
methamphetamine laboratory, MCL 333.7401c(2)(f); owning a building intended to be used as a
location to manufacture methamphetamine, MCL 333.7401c(1)(a); possession of
methamphetamines, MCL 333.7403(2)(b)(i); and delivery or possession of methamphetamines
near a park, MCL 333.7410a. The circuit court sentenced defendant as a second habitual
offender, MCL 333.7413, to serve 66 to 240 months for the conspiracy conviction, the operating
or maintaining a methamphetamine lab conviction, the owning a building used to operate or
maintain a methamphetamine lab conviction, and the possession of methamphetamine
conviction, and to 12 months for the delivery or possession of methamphetamine near a park
conviction. We affirm.

                            I. PROSECUTORIAL MISCONDUCT

        Defendant argues that she was denied a fair trial based on inadmissible, inflammatory
arguments made by the prosecutor during his opening statement. The prosecutor described
methamphetamine (meth) as a “terrible drug” that was “highly addictive,” “extremely
poisonous,” “very dangerous” to ingest and to make, and “very cheap” to make. According to
defendant, this was improper because the irrelevant statements were designed to appeal to the
jury’s sense of “civic duty,” and to their fears and prejudices about meth. They were, according
to defendant, designed to divert the jury from its duty to decide the case based on the evidence
by injecting issues broader than the guilt or innocence of the accused. See People v Farrar, 36
Mich App 294, 299; 193 NW2d 363 (1971). Given the evidence subsequently adduced at trial,
the prosecutor’s statements were permissible commentary. See People v Lane, 308 Mich App
38, 63; 862 NW2d 446 (2014) (“During opening statements, a prosecutor may state the facts that

                                              -1-
will be proved at trial. A prosecutor may not offer his or her personal belief about the
defendant’s guilt, but may summarize what he or she thinks the evidence will show.”) (citations
and quotation marks omitted); People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995)
(holding that prosecutors are free to argue the facts in evidence and the reasonable inferences
arising from those facts).

        Our Supreme Court has stated that “prosecutors should not resort to civic duty arguments
that appeal to the fears and prejudices of jury members or express their personal opinion of a
defendant’s guilt, and must refrain from denigrating a defendant with intemperate and prejudicial
remarks.” Bahoda, 448 Mich at 282-283. “Generally, [however,] [p]rosecutors are accorded
great latitude regarding their arguments and conduct” and are “free to argue the evidence and all
reasonable inferences from the evidence as it relates to [their] theory of the case.” Id. at 282
(citations and quotation marks omitted; second and third alterations in original). Similarly,
prosecutors may summarize anticipated evidence. Lane, 308 Mich App at 63. The prosecutor’s
statements foreshadowed the evidence presented, and thus were not improper.

         There was ample evidence presented at trial to support the comments about meth made
during the prosecutor’s opening statement. A Michigan State Police trooper testified about the
“ingredients” required to make meth, and the dangers inherent in that process. Other officers
experienced in narcotics law enforcement described meth as “very” or “highly” addictive, while
both Joseph and Pamela Pethers testified that they were addicted to meth. This testimony
established not only that the process of manufacturing meth was dangerous, but that the
ingredients used to make it were quite toxic, and that the finished product was highly addictive.
The prosecutor’s comments that meth was “highly addictive,” dangerous, and “terrible” presaged
the trial testimony, and was not improper. There was no plain error requiring reversal. Bahoda,
448 Mich at 282; Lane, 308 Mich App at 62-63.

         II. INEFFECTIVE ASSISTANCE AND PROSECUTORIAL MISCONDUCT

        Defendant argues that defense counsel provided ineffective assistance by introducing
evidence that defendant was previously in jail, and by failing to object to the prosecutor’s
questions on the topic of defendant’s previous arrest and consumption of alcohol. Although
defendant’s argument that the prosecutor improperly questioned a witness about her previous
arrest has merit, defendant was not denied a fair trial on this basis, and is not entitled to reversal.

                                               A. JAIL

        Defendant argues first that defense counsel was ineffective for introducing evidence
during her boyfriend’s direct examination that defendant was previously in jail. Specifically, in
response to defense counsel’s question, “How do you know [defendant]?”, the witness responded
that he had first called defendant after a friend had told him “that she . . . was in jail, . . . and she
needed somebody to talk to.” Defendant argues that this testimony demonstrates that defense
counsel did not adequately investigate the witness and should have known how his relationship
with defendant began.

        The accused has the right under the federal and state Constitutions to the effective
assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20; Strickland v Washington, 466

                                                  -2-
US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). A defendant bears a heavy burden to show that
counsel made errors so serious that she was not performing as the counsel guaranteed by the
Sixth Amendment, and the defendant must overcome a strong presumption that counsel’s
performance constituted sound trial strategy. People v Dixon, 263 Mich App 393, 396; 688
NW2d 308 (2004). To prevail on an ineffective assistance of counsel claim, a defendant must
meet two criteria: first, she must “show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland, 466 US at 687. Second, the
defendant must show the deficient performance was prejudicial. Id. Prejudice is established
where there is a reasonable probability that, but for counsel’s error, the result of the proceeding
would have been different. Id. at 694; People v LaVearn, 448 Mich 207, 216; 528 NW2d 721
(1995).

        Although defendant argues that trial counsel should have known that the witness first met
defendant when she was in jail, we note that the witness testified on cross-examination that he
met defendant “when she got out of jail,” which indicates that defendant was not incarcerated
when they met. Thus, although defense counsel may have known that the witness and defendant
first met close in time to when defendant was in jail, she could not have necessarily anticipated
that the boyfriend would respond to her question, “How do you know her?” by referencing
defendant’s time in jail, rather than by simply stating that they were in a dating relationship.

       We also note that the purpose in calling the witness was to show that the boyfriend saw
defendant on a regular basis, and that defendant had not appeared to have used meth on any of
the days they were together. Defense counsel also established through the witness that defendant
had purchased Sudafed for him as treatment for his allergies, suggesting the purchase was not for
use as an ingredient in meth. “Decisions regarding what evidence to present, whether to call
witnesses, and how to question witnesses are presumed to be matters of trial strategy,” People v
Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008), and “this Court will not substitute its
judgment for that of counsel regarding matters of trial strategy,” People v Davis, 250 Mich App
357, 368; 649 NW2d 94 (2002). Defense counsel was not ineffective on the basis of this
testimony.

       Similarly, we are not persuaded that the prosecutor acted improperly by mentioning
defendant’s time in jail during cross-examination of the witness. Issues of “prosecutorial
misconduct are considered on a case-by-case basis . . . in context” to determine whether the
“defendant was denied a fair and impartial trial.” People v Bennett, 290 Mich App 465, 475; 802
NW2d 627 (2010). Here, the prosecutor merely repeated the witness’s testimony from the direct
examination when he asked him to clarify that he had met defendant “after she got out of jail.”
The prosecutor did not ask why defendant had been in jail or comment further on this topic.
Based on this very limited exchange, no error resulting in a miscarriage of justice occurred. See
People v Brown, 279 Mich App 116, 134; 755 NW2d 664 (2008).

                                      B. PRIOR ARREST

       Defendant also argues that defense counsel was ineffective for failing to object to the
prosecutor’s questions concerning her previous arrest during cross-examination of defendant’s
boyfriend. We recognize that defense counsel may have intentionally chosen not to object so as

                                                -3-
not to call attention to an issue that may have negatively affected the jury’s view of defendant.
However, even if she should have objected or requested a curative instruction, defendant has not
shown that the error affected the outcome of her case. LaVearn, 448 Mich at 216. Other
evidence properly introduced at trial, including the incriminating testimony of the Pethers and
defendant’s daughter, provided sufficient evidence to show that defendant had possession of
meth and that she allowed it to be manufactured in her home. The unchallenged testimony about
defendant’s previous arrest did not likely affect the outcome of the case. Id.

        Nor has defendant shown that the prosecutor committed error requiring reversal by
introducing evidence of her prior arrest. The prosecutor initially confirmed the boyfriend’s prior
testimony that he had “met [defendant] after she got out of jail.” The prosecutor then asked him
if he was with defendant “when she was arrested,” presumably referring to her arrest for the
current offense, and the witness responded “not this time.” The prosecutor later asked whether
“there [had] been a time in the past when [defendant] was arrested in your residence.” Although
this Court has held that prosecutors have a special obligation to avoid areas of testimony that
may unfairly prejudice a defendant, People v McCarver (On Remand), 87 Mich App 12, 15; 273
NW2d 570 (1978), an isolated or inadvertent reference to a defendant’s prior criminal activities
will not warrant reversal, People v Wallen, 47 Mich App 612, 613; 209 NW2d 608 (1973).
However, we agree that the prosecutor should not have asked whether “there [had] been a time in
the past when [defendant] was arrested in your residence” because it potentially referenced prior
bad acts. See MRE 404(b). However, there is no indication that the error affected defendant’s
substantial rights. Sufficient evidence was presented at trial to establish that defendant had
possession of meth and allowed the Pethers to make it in her home. Defendant has not shown
that the prosecutor’s improper question affected the integrity of the proceedings or that she was
actually innocent and the prosecutor’s error caused her to be convicted. People v Thomas, 260
Mich App 450, 454; 678 NW2d 631 (2004).

        We likewise reject defendant’s argument that the court committed error requiring reversal
by allowing the witness to be cross-examined “about arrests not resulting in conviction or about
the length and detail of any sentence as a result of earlier convictions,” citing People v Rappuhn,
390 Mich 266; 212 NW2d 205 (1973). Defendant’s reliance on Rappuhn is misplaced. In
Rappuhn, our Supreme Court stated that “ ‘in the examination or cross-examination of any
witness, no inquiry may be made regarding prior arrests or charges against such witness which
did not result in conviction; neither may such witness be examined with reference to higher
original charges which have not resulted in conviction, whether by plea or trial.’ ” Id. at 270,
quoting People v Falkner, 389 Mich 682, 695; 209 NW2d 193 (1973) (emphasis in original) The
Rappuhn Court held that the defendant had been prejudiced by the reference to his arrest record,
stating that “Falkner clearly speaks to the impeachment of any witness by use of an arrest record.
Therefore, defendant is entitled to a new trial on the basis of Falkner.” Rappuhn, 390 Mich at
270-271. Rappuhn is not applicable to the instant case because the record does not indicate that
the prosecutor elicited testimony about defendant’s previous arrest to impeach her credibility or
that of the witness. Further, Rappuhn prohibits counsel from making any “inquiry . . . regarding
prior arrests or charges against such witness which did not result in conviction[.]” Id. at 270
(citation and quotation marks omitted). Defendant does not claim that her prior arrest did not
lead to charges resulting in conviction and thus, it is not clear that the comment would have been
prohibited under Rappuhn. But even if it did not result in conviction, again, the error did not


                                                -4-
affect the integrity of the proceedings or affect the fairness of the trial, and does not require
reversal. Thomas, 260 Mich App at 454.

                                        C. “DRINKING”

        Next, defendant argues that defense counsel should have objected during the prosecutor’s
cross-examination of her boyfriend when he was asked whether defendant was drinking at the
time of her arrest. Defendant does not explain why counsel should have objected to these
questions. However, we presume she believes that this line of questioning was potentially
prejudicial or portrayed her in a bad light. Such an argument is not persuasive evidence that
defense counsel was ineffective because defendant has not shown that the outcome of her case
would have been different if counsel had objected. Defendant has not asserted that it would have
been illegal for her to consume alcohol. In addition, no evidence that defendant drank alcohol
was actually admitted as a result of the witness’s testimony because he categorically denied that
defendant was drinking at any time in his presence or that they ever drank together. We do not
agree that defense counsel was ineffective for failing to object to the prosecutor’s questions, but
to the extent that there was any error, defendant has not shown that it affected the outcome of her
case. LaVearn, 448 Mich at 216.

        We agree with defendant, however, that the prosecutor improperly questioned the witness
regarding whether she was drinking at the time of her arrest. Defendant was not charged with
any alcohol-related offenses, and no evidence was offered to show that, for instance, she was
under the influence of alcohol during the commission of the offenses or that consumption of
alcohol otherwise figured in the commission of the offenses. Thus, the prosecutor delved into an
irrelevant area. See MRE 401 and 402. However, as discussed, defendant has not argued that it
would have been improper or illegal for her to consume alcohol for any reason, and the
prosecutor did not suggest that defendant would have been breaking the law by drinking.
Additionally, as noted, the witness testified that he did not see defendant drinking at any time.
Because defendant cannot show that she was denied a fair trial based on the prosecutor’s
questions, she is not entitled to a new trial on this basis.

                                           III. OV 14

        Defendant argues that the trial court improperly assessed 10 points for offense variable
(OV) 14, MCL 777.44, because the evidence did not support a finding that she was a leader in
the commission of the offenses. Ten points may be assessed for OV 14 where “[t]he offender
was a leader in a multiple offender situation.” MCL 777.44(1)(a). “The entire criminal
transaction should be considered when scoring this variable,” and where “3 or more offenders
were involved, more than 1 offender may be determined to have been a leader.” MCL
777.44(2)(a) and (b). The trial court assessed 10 points for OV 14, over defendant’s objection,
based on its finding that defendant “was certainly a willing participa[nt]” who provided money to
the Pethers to purchase Sudafed and other materials, allowed her house to be used to
manufacture meth, and who “solicited her daughter to purchase Sudafed.” The court
acknowledged that others may have played an even greater role in carrying out the offense, but
determined that it was still appropriate to assess 10 points based on defendant’s role. We agree.



                                                -5-
        The statute does not define the term “leader,” so we may determine the common meaning
of the term from the dictionary. Ter Beek v City of Wyoming, 495 Mich 1, 20; 846 NW2d 531
(2014). One common definition of a “leader” is “[o]ne that leads or guides.” The American
Heritage Dictionary of the English Language (2000). Under the statute, more than one offender
may be found to be a leader when the offense involves three or more offenders. Thus, as the
court noted, while Joseph Pethers may have played the greatest role in manufacturing the meth, it
was still appropriate to assess 10 points for defendant’s role in the offense because the evidence
supported a finding that she allowed her home to be used as a meth lab, she paid for the materials
for one of the meth “cooks,” and she solicited her daughter to obtain a necessary ingredient,
actions that could be construed as “leading” or “guiding” the creation of a meth lab. We are not
persuaded by defendant’s argument that the court’s score was not appropriate because she “did
not know much of anything about methamphetamine.” Although defendant may not have
possessed the technical knowledge used by Joseph Pethers to actually make the meth, the court’s
finding that she had a leadership role in the manufacturing process in other ways was supported
by a preponderance of the evidence.

         Defendant argues that the court should not have considered testimony that she solicited
her daughter to buy Sudafed to determine whether she played a leadership role, based on People
v Rhodes (On Remand), 305 Mich App 85; 849 NW2d 417 (2014). In Rhodes, this Court
concluded that the defendant, who had been convicted of assault with intent to commit great
bodily harm, was not a leader in the offense because “the evidence does not show that defendant
acted first, gave any directions or orders to” the other offender, “displayed any greater amount of
initiative beyond” his possession of a firearm, “played a precipitating role in [the other
offender’s] participation in the criminal transaction, or was otherwise a primary causal or
coordinating agent.” Rhodes, 305 Mich App at 87, 90. The Court also determined that the only
evidence of the defendant’s leadership role was that he had possessed a gun during the
commission of the offense and the other offender had not. Therefore, the Court concluded that
the record did not support the trial court’s finding that the defendant was a leader pursuant to OV
14. Id. at 90. By contrast, evidence that defendant asked her daughter to buy Sudafed, in
combination with other evidence, does support a finding that defendant was a leader. Based on
the definition of “leader,” it was not error for the trial court to find that defendant helped to lead
or guide by asking her daughter to purchase Sudafed, as well as by purchasing Sudafed herself,
paying for other materials, and allowing her home to be used as a meth lab. Defendant
“directed” her daughter to purchase Sudafed, and arguably displayed initiative by doing so. See
Rhodes, 305 Mich App at 90. The trial court did not err by concluding that the preponderance of
the evidence, including evidence that defendant directed her daughter to purchase Sudafed,
supported a finding that OV 14 should be scored at 10 points.

                                    IV. DOUBLE JEOPARDY

        Following trial, defendant filed a motion for judgment notwithstanding the verdict
(JNOV), in which she argued that she was being “punished more than once for the same act,” in
violation of her protection against double jeopardy, because “the factual basis for all of the
Counts is . . . the same.” Specifically, defendant contended that count III (owning a building
intended to be used as a location to manufacture methamphetamine, MCL 333.7401c(1)(a)) and
count V (delivery or possession of a controlled substance within 1000 feet of a park, MCL
333.7410a) should be dismissed because count III was a lesser included offense of count I

                                                 -6-
(conspiracy to operate or maintain a laboratory involving methamphetamine, MCL
333.7401c(2)(f); MCL 750.157a), and count II (operating or maintaining a laboratory involving
methamphetamine; MCL 333.7401c(2)(f)), and count IV (possession of a controlled substance,
MCL 333.7403(2)(b)(i)). Additionally, defendant argued that count V was a “cognate lesser
offense to count III,” and that both counts were “cognate lesser offenses to Counts 1, 2, and 3.”
According to defendant, count V violated double jeopardy with respect to her other convictions
“because the same factual basis underpins . . . all of the offenses.” The court denied defendant’s
motion without explanation.

       On appeal, defendant renews her assertion that she is entitled to dismissal of two of her
convictions, relying on her motion for JNOV rather than providing an argument in support of this
statement. Defendant has, thus, abandoned this argument. People v Kelly, 231 Mich App 627,
640-641; 588 NW2d 480 (1998); People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004).
We conclude, however, that the trial court did not err by denying defendant’s motion for JNOV
and that her constitutional rights against double jeopardy were not violated.

        “Both the United States and Michigan constitutions prohibit a person from twice being
placed in jeopardy for the same offense.” People v Ford, 262 Mich App 443, 447; 687 NW2d
119 (2004), citing US Const, Am V and Const 1963, art 1, § 15. In Ford, this Court explained
that “[b]oth federal and Michigan double jeopardy provisions afford three related protections: (1)
against a second prosecution for the same offense after acquittal, (2) against a second
prosecution for the same offense after conviction, and (3) against multiple punishments for the
same offense.” Ford, at 447. At issue in this case is the third category of double jeopardy
protection.

        “[T]he purpose of the double jeopardy protection against multiple punishments for the
same offense is to protect the defendant from having more punishment imposed than the
Legislature intended.” Id. at 447-448. However, “[t]he Double Jeopardy Clause acts as a
restraint on the prosecutor and the courts, not the Legislature.” Id. at 448, citing Brown v Ohio,
432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977) (citation omitted). Thus, “the Double
Jeopardy Clause does not limit the Legislature’s ability to define criminal offenses and establish
punishments . . . .” Id. (citations omitted).

        Whether the Legislature intended to impose multiple punishments for violations of more
than one statute during the same transaction or incident is generally determined by the
application of the Blockburger1 or “same-elements” test. See United States v Dixon, 509 US
688, 696; 113 S Ct 2849; 125 L Ed 2d 556 (1993); People v Denio, 454 Mich 691, 707; 564
NW2d 13 (1997). In general, the Blockburger test “inquires whether each offense contains an
element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars
additional punishment and successive prosecution.” Ford, 262 Mich App at 448 (citation and
quotation marks omitted). The offenses for which defendant was convicted do not contain
identical elements.



1
    Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932).


                                               -7-
        MCL 333.7401c(1)(a) prohibits a person from owning, possessing, or using a structure
that he or she knows is to be used to manufacture a controlled substance, while MCL
333.7401c(1)(b) prohibits a person from owning or possessing any chemical or laboratory
equipment that he or she knows is to be used to manufacture a controlled substance. Although
the language of the two provisions is similar, subdivision (a) required the prosecution to prove
that defendant owned the house in which the methamphetamine was manufactured, while
subdivision (b) required the prosecution to prove that she owned the chemicals and equipment
apparently found in the house. To establish that defendant violated MCL 333.7410a, the
prosecution had to show that defendant operated a meth lab within 1000 feet of a public park;
only the element of possession is shared with the offenses arising under MCL 333.7401c(1)(a)
and (b), which is itself one of three alternative elements listed in those subsections (i.e.,
“owning,” “possessing,” or “using”). In Ford, this Court held that “[e]ven where the same facts
in a single trial show the commission of each [offense,] the federal Double Jeopardy Clause is
not offended.” Ford, 262 Mich App at 458. Defendant’s convictions and sentences did not
violate the same-elements test because the offenses arising under each statutory provision
required the prosecution to prove an element that the other subdivision or statute did not.

       Affirmed.



                                                           /s/ David H. Sawyer
                                                           /s/ Christopher M. Murray
                                                           /s/ Elizabeth L. Gleicher




                                              -8-
