                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    August 17, 2017
               Plaintiff-Appellee,

v                                                                   No. 332391
                                                                    Oakland Circuit Court
RICHARD LEE HARTWICK,                                               LC No. 2012-240981-FH

               Defendant-Appellant.


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

PER CURIAM.

        Defendant appeals as of right his jury trial conviction of the delivery or manufacture of 5
to 45 kilograms of marijuana, MCL 333.7401(2)(d)(ii), and the possession with intent to deliver
marijuana, MCL 333.7401(2)(d)(iii). The trial court sentenced him, as a fourth habitual
offender, MCL 769.12, to 2 to 40 years in prison for the delivery or manufacture of 5 to 45
kilograms of marijuana conviction, and 2 to 15 years in prison for the possession with intent to
deliver marijuana conviction. We affirm.

       This case arises out of an incident on September 27, 2011, in which two police officers
went to defendant’s house in Pontiac to investigate a tip that someone was distributing marijuana
from that location. The officers met defendant outside of the house, and one of the officers,
Detective Ferguson, asked him if there was marijuana inside. Defendant replied that there was
and that he was growing marijuana in compliance with the Michigan Medical Marihuana Act
(MMMA), MCL 333.26421 et seq. Detective Ferguson asked if could see the marijuana, and
defendant let him enter the house. The detectives and defendant went into a back bedroom that
was a grow room for the marijuana. They found many marijuana plants in that room and
additional marijuana and drug paraphernalia in other parts of the house. The detectives counted
the marijuana plants, determined that defendant was over the amount allowed under the MMMA,
and seized the evidence. Defendant was later arrested and charged with the crimes of which he
is now convicted.

        This case has a lengthy procedural history. Before trial, defendant moved for dismissal
of the charges under § 4 of the MMMA, MCL 333.26424, as well as § 8 of the MMMA, MCL
333.26428, and, alternatively, sought to assert the § 8 affirmative defense. The trial court held
that defendant was not entitled to § 4 immunity. It also denied defendant’s request for dismissal



                                                -1-
under § 8 and ruled that he could not present the § 8 defense at trial because he had failed to
prove the elements for the affirmative defense.

        On October 11, 2012, we denied defendant’s delayed application for leave to appeal.
People v Hartwick, unpublished order of the Court of Appeals, entered October 11, 2012
(Docket No. 312308). On April 1, 2013, the Michigan Supreme Court, in lieu of granting leave
to appeal, remanded the case to this Court for consideration as on leave granted. People v
Hartwick, 493 Mich 950; 828 NW2d 48 (2013) (Hartwick I). On November 19, 2013, we
affirmed the trial court’s ruling in a published opinion, holding that defendant was precluded
from asserting immunity from prosecution under § 4 because he “failed to introduce evidence of
(1) some of his patients’ medical conditions, (2) the amount of marijuana they reasonably
required for treatment and how long the treatment should continue, and (3) the identity of their
physicians.” People v Hartwick, 303 Mich App 247, 250, 260; 842 NW2d 545 (2013) (Hartwick
II). We further held that defendant was not entitled to assert the § 8 defense because he did not
present evidence that his patients had bona fide physician-patient relationships with their
certifying physicians and that he knew the amount of marijuana needed to treat the conditions of
his patients. Id. at 266-268. We rejected defendant’s theory that the possession of a registry
identification card alone was sufficient to meet the standards in the statute for a complete
defense. Id. at 262, 269-270.

        On July 27, 2015, after granting leave to appeal, the Michigan Supreme Court affirmed in
part and reversed in part the judgment of this Court and remanded the case to the trial court for
an evidentiary hearing regarding defendant’s entitlement to immunity pursuant to MMMA § 4.
People v Hartwick, 498 Mich 192, 239, 244-245; 870 NW2d 37 (2015) (Hartwick III). The
Supreme Court held that the trial court erred in failing to make factual findings regarding the
number of marijuana plants in defendant’s possession and findings regarding the other elements
of defendant’s § 4 immunity claim. Id. at 239. Further, the Court found error in the trial court’s
analysis of the fourth element relating to the medical use of marijuana. Id. at 238. It noted that a
§ 4 analysis should focus on the defendant’s conduct. Id. Finally, the Supreme Court agreed
with our Court that defendant failed to present prima facie evidence of the elements of § 8(a) to
assert a defense under the MMMA. Id. at 239.

        On remand, the trial court conducted a § 4 hearing and concluded that defendant failed to
prove by a preponderance of the evidence at least two of the four elements necessary to assert an
immunity claim. It found that defendant did not show he was in possession of a patient registry
identification card at the time the police searched his house. It also found that defendant had
more than the statutorily allowable amount of marijuana plants in his possession at that time.

        The trial court also conducted a hearing on defendant’s motion to suppress the evidence
seized from his house as the fruit of an illegal search. He claimed that he believed the officers
had a warrant to search and that he never consented to the search of his residence. The trial court
found otherwise and denied the motion to suppress. It concluded that the prosecution proved by
a preponderance of the evidence that the search was conducted with defendant’s consent.

       At trial, there was again conflicting evidence regarding several issues concerned with the
search. There was evidence that the officers discovered 78 marijuana plants in an unlocked room
of the house. However, defense witnesses testified that defendant possessed either 70 or 72

                                                -2-
plants and that the room in which they were stored was kept shut and locked. Among the items
seized was defendant’s cell phone. Detective Robert Ludd was qualified as an expert in street
level narcotics trafficking and opined that the text messages from the phone indicated that
defendant possessed the marijuana with the intent to deliver it rather than use it for personal
consumption. At the conclusion of the trial, the jury found defendant guilty of the delivery or
manufacture of 5 to 45 kilograms of marijuana and possession with intent to deliver marijuana.
Following his sentencing, defendant filed the instant appeal.

                             I. IMMUNITY UNDER THE MMMA

        Defendant argues that the trial court erred in dismissing his claim of immunity under § 4
of the MMMA. We disagree.

        We review a trial court’s decision on a motion to dismiss criminal charges for an abuse of
discretion, which exists when a decision “falls outside the range of principled outcomes.”
People v Nicholson, 297 Mich App 191, 196; 822 NW2d 284 (2012). A trial court’s factual
findings regarding § 4 immunity under the MMMA are reviewed under the clearly erroneous
standard, and questions of law surrounding the § 4 immunity determination are reviewed de
novo. Hartwick III, 498 Mich at 201. “A ruling is clearly erroneous if the reviewing court is left
with a definite and firm conviction that the trial court made a mistake.” People v Bylsma, 493
Mich 17, 26; 825 NW2d 543 (2012) (citation and quotation marks omitted).

        While marijuana remains illegal in Michigan, the MMMA allows the medical use of
marijuana by a limited class of individuals. Section 4 of the MMMA grants broad immunity
from criminal prosecution and other penalties to qualified patients and caregivers. MCL
333.26424. Our Supreme Court recently addressed this case and set forth the appropriate test for
establishing immunity under the MMMA, stating that defendant must prove by a preponderance
of the evidence that he:

               (1) possessed a valid registry identification card for himself as a qualifying
       patient and for each of the five other connected registered qualifying patients,

              (2) possessed no more than 72 marijuana plants and 15 ounces of usable
       marijuana,

               (3) kept the marijuana plants in an enclosed, locked facility, and

              (4) was engaged in the medical use of marijuana. [Hartwick III, 498 Mich
       at 237-238.]

Further, the Court held that defendant was entitled to a presumption of the medical use of
marijuana if he demonstrated by a preponderance of the evidence that he possessed:

               (1) a valid registry identification card for himself as a patient and for each
       of the five other registered qualifying patients to whom he is connected under the
       MMMA, and



                                                -3-
                (2) no more than 72 marijuana plants and 15 ounces of usable marijuana.
       [Id. at 238.]

The prosecution could then rebut this presumption in accordance with § 4(d)(2). Id. The fact-
finding required to determine whether § 4 is applicable to the facts of a certain case is a question
for the trial court’s consideration and ultimate determination. People v Jones, 301 Mich App
566, 577; 837 NW2d 7 (2013).

        Following a three-day hearing, the trial court issued an opinion holding that defendant
was not entitled to immunity under § 4 of the MMMA. In its opinion, the trial court found that
defendant established by a preponderance of the evidence that he possessed five registry
identification cards as a caregiver for his five patients at the time of the search. However, the
trial court found that defendant failed to show that he was a qualified patient. The trial court
found that defendant’s application for the patient registry card was insufficient to establish that
he possessed a valid card. It stated that defendant failed to show that his application was actually
submitted or had been submitted by a particular date and that he had never made an effort to
obtain verification from the state of his valid registry status.

         According to the record, defendant possessed a valid registry identification card for
himself as a qualifying patient and for each of the five registered qualifying patients at the time
of the search. At the hearing on July 18, 2012, the prosecution stipulated that defendant held a
valid registry identification card as a patient for medical marijuana purposes. However, the
prosecution subsequently argued that its stipulation was for purposes of the § 8 defense alone.
The record indicates that the prosecution’s stipulation to the validity of defendant’s registry card
extended to the § 4 immunity issue. Both defense counsel and the prosecution presented
arguments relating to that issue at the hearing, and the trial court made a determination on
defendant’s request for immunity along with its ruling regarding the affirmative defense.
Accordingly, there was a clear stipulation that defendant possessed a valid card as a medical
marijuana patient. With such a stipulation, there was no requirement for defendant to secure a
certified copy of the registration documents or some other more official document as the trial
court indicated. Given these facts, the trial court erred in its finding that defendant did not meet
the first element of a § 4 immunity claim.

        Next, the trial court found that defendant failed to meet the second element of a § 4
immunity claim. Under the MMMA, defendant, as the caregiver, was allowed to have 12 plants
for each patient under his care and another 12 for himself as a patient. The trial court held that
the credible evidence showed “that there were at least seventy-six plants in the home.” The trial
court found that both Detective Doty and Detective Ferguson each counted a total of 78 plants.
It also found that Detective Doty’s testimony was credible and that defendant’s testimony was
inconsistent. It noted that the forensic lab report indicated that a total of 76 plants were
submitted for testing. Thus, the trial court concluded that at most defendant was allowed to
possess 72 marijuana plants, and defendant failed to establish that he was within the limit
imposed under the statute.

        Here, there was conflicting evidence regarding the number of marijuana plants found at
the house. Detective Doty testified that he and Detective Ferguson each counted the marijuana
plants, and there were 78 plants at the house. The plants were placed in a bag, and the detective

                                                -4-
wrote the number of plants on the bag. He stated that each of the plants had a root system.
Defendant testified that he was growing about 60 or 61 marijuana plants in the sunroom.
Another room had two marijuana plants. He also said there were no more than 64 plants in total.
Defendant was asked, however, about his previous testimony that there were 71 plants in
Styrofoam cups.

        The trial court is afforded deference in matters of credibility. People v Farrow, 461 Mich
202, 209; 600 NW2d 634 (1999). After hearing from the witnesses, the court found that
Detective Doty was a more credible witness. In addition, there was corroborating evidence that
the forensic lab report showed that more than 72 plants arrived for testing. In light of the
evidence and giving deference to the trial court’s determinations of credibility, it cannot be said
that the trial court erred in finding that defendant possessed more than the statutorily allotted
number of marijuana plants when the search was conducted. Because defendant failed to
establish this element of a § 4 immunity claim, it was not an abuse of discretion for the trial court
to deny defendant’s motion to dismiss the case on the basis of immunity under the MMMA.
Generally, the first three elements of immunity under the MMMA are all-or-nothing
propositions. Hartwick III, 498 Mich at 218. Therefore, further analysis of the other elements is
unnecessary.

                                   II. SEARCH AND SEIZURE

       Defendant argues that his Fourth Amendment rights were violated when the police
searched his house without a warrant or voluntary consent. We disagree.

        We review de novo a trial court’s ultimate decision on a motion to suppress. People v
Gingrich, 307 Mich App 656, 661; 862 NW2d 432 (2014). We review for clear error a trial
court’s findings of fact made during the suppression hearing. Id. “A finding of fact is clearly
erroneous if, after a review of the entire record, an appellate court is left with a definite and firm
conviction that a mistake has been made.” Id. (citation and quotation marks omitted).

        The United States and Michigan Constitutions both guarantee every person the right to be
free from unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11. A
warrantless search is unreasonable per se. People v Dagwan, 269 Mich App 338, 342; 711
NW2d 386 (2005). However, voluntary consent is an exception to the warrant requirement. Id.
The consent exception permits a search and seizure if the consent is unequivocal, specific, and
freely and intelligently given. Lavigne v Forshee, 307 Mich App 530, 538; 861 NW2d 635
(2014). “Whether consent to search is freely and voluntarily given presents a question of fact
that must be determined on the basis of the totality of the circumstances; the presence of coercion
or duress will militate against a finding of voluntariness.” Id.

        On the basis of the totality of the circumstances, the trial court did not clearly err in
finding that defendant voluntarily consented to the search of his house. Detective Doty testified
that he and Detective Ferguson responded to a complaint about marijuana at a house in Pontiac
on September 27, 2011. The officers had not obtained a warrant, believing it was more
appropriate to approach the homeowner since it was a possible medical marijuana situation.
Instead, they conducted a “knock and talk” at the house. Detective Doty heard Detective
Ferguson explain to defendant the reason for the police visit and ask defendant if he was a

                                                 -5-
medical marijuana cardholder. Defendant responded that he was a medical marijuana caregiver
and had marijuana plants inside the house. The officers asked defendant if they could inspect the
marijuana grow inside the house and he “welcomed [them] in.” Detective Doty testified that
Detective Ferguson did not tell defendant that they had a warrant or hand defendant a piece of
paper. The detectives and defendant entered the side door of the house. Detective Doty stated
that defendant was very cooperative with their investigation. Detective Doty recounted that he
could see the grow lights when he was standing by the front door. Defendant took the officers to
the grow room. Detective Doty saw marijuana plants in that room and branches of marijuana
drying in another room. Detective Doty testified that they counted the plants, realized defendant
was over the legal limit allowed under the MMMA, and seized the plants and other evidence.

         On cross-examination Detective Doty testified that there were no pictures taken at the
house and he had no notes on this case. However, he reviewed the police report that Detective
Ferguson wrote and had personal recollection of things concerning this case. He testified that
Detective Ferguson was no longer with the sheriff’s department and that he did not know the
reason for his absence. Detective Doty noted that he had originally stated they entered the front
door of the house but later recalled it was the side door. Detective Doty was questioned
regarding a case approximately two years ago where he was the affiant on the search warrant, a
mistake was found regarding the search, and the case was dismissed. Detective Doty testified
that this was the first time in his almost 20 years of police work that such a mistake had occurred.
There was a letter admitted as a defense exhibit from the prosecutor’s office indicating concern
over Detective Ferguson’s truthfulness and explaining that some of the cases on which he
worked or charges in those cases had been dismissed.

        Defendant testified that it was afternoon and he was standing in his yard when two
officers pulled up in a vehicle. Detective Ferguson approached him and started a discussion with
him. At some point, Detective Doty joined the conversation. Detective Ferguson asked
defendant if he was growing marijuana, and defendant said he was. Detective Ferguson then
asked for his identification cards. Defendant took out his wallet and showed the detective his
cards. Detective Ferguson told defendant that they were going in to search his house. The
officer handed defendant what defendant believed was a search warrant and went inside.
Defendant did not look at or read the paper the detective gave him because he immediately
followed the detective into the house. Defendant testified that Detective Ferguson did not ask if
he could go inside the house and that defendant never gave him consent to search the house.
However, in his motion to suppress defendant averred that the officer asked him if he could do a
search of the house, and defendant answered, “[N]o.” Defendant claimed that, once inside,
Detective Ferguson took the paper back and the items from defendant’s pockets and had
defendant sit down. Detective Ferguson returned to get defendant because the grow room was
locked. Defendant contended that the grow lights were not visible from outside of the room.

       On cross-examination, defendant admitted he had never denied that he was growing
marijuana. Rather, he thought that he was in compliance with the MMMA. It was noted that in
his motion to suppress, defendant claimed that Detective Ferguson said “he was going in the
fucking house” and that the officer would “break the fucking door down” if defendant did not let
him in the house. At the hearing, defendant testified that the officer did not use curse words
during their interactions. Defendant explained that he might have been under an adrenaline rush


                                                -6-
when he was recounting the incident to his counsel. Defendant denied that there were text
messages from his phone about drugs.

         At the conclusion of the hearing, the trial court ruled that defendant had consented to the
search and denied his motion to suppress the evidence. The trial court noted that it had been
nearly five years since the search and seizure occurred. It found that both Detective Doty and
defendant had some lapses in their memories of the events. However, the trial court found that
Detective Doty was a more credible witness than defendant, whose testimony was inconsistent.
It also found that defendant’s belief that he was in compliance with the law supported Detective
Doty’s account that defendant allowed the detectives to search his home. The trial court stated
that the timing of defendant’s motion just before trial “lends to its lack of credibility.” The trial
court noted that there was a basis for concern that the other detective who was part of the knock
and talk operation might have been untruthful in other cases. However, it found that Detective
Doty was present during the search and was “very credible.” Again, we give deference to the
trial court “where a factual issue involves the credibility of the witnesses whose testimony is in
conflict.” Farrow, 461 Mich at 209. There was no error in the trial court’s finding that
Detective Doty’s account of the interaction was more believable and that consent was obtained.
Additionally, defendant’s consistent assertion that he had marijuana and believed he was in
compliance with the law is a circumstance that also supports a finding of consent. Given the
evidence before it, there is no clear error in the trial court’s finding that defendant gave consent
to the search. Therefore, there was no violation of his Fourth Amendment right against an
unreasonable search and seizure.

                                   III. CHAIN OF CUSTODY

       Defendant contends that it was error for the trial court to admit Detective Doty’s
testimony regarding the number of marijuana plants found at defendant’s house when there was
no chain of custody established regarding the plants. We disagree.

        To preserve an evidentiary issue for review, the party must object to the admission of the
evidence at trial and specify the same ground for objection that it claims on appeal. People v
Douglas, 496 Mich 557, 574; 852 NW2d 587 (2014). Defense counsel objected to the chain of
custody of the marijuana in the mason jars, not the marijuana plants in the grow room.
Therefore, this issue is not preserved for appeal. We review unpreserved evidentiary issues for
plain error affecting the defendant’s substantial rights, which requires a showing of prejudice, in
other words that the error affected the outcome of the proceedings. People v Carines, 460 Mich
750, 763-764, 774; 597 NW2d 130 (1999).

        The authenticity of evidence must be established when admitting real evidence and does
not require a perfect chain of custody. People v White, 208 Mich App 126, 130; 527 NW2d 34
(1994). Rather, “any deficiency in the chain of custody goes to the weight of the evidence rather
than its admissibility once the proffered evidence is shown to a reasonable degree of certainty to
be what its proponent claims.” Id. at 130-131.

        The real marijuana plants were not introduced into evidence and, therefore, did not
require proof of a chain of custody. Nevertheless, a chain of custody was established regarding
the marijuana seized. Detective Doty testified that defendant told the police he was growing

                                                -7-
marijuana in the house and showed them the grow room. Detective Doty counted and re-counted
78 plants during the search. He also explained that the plants were placed into large yard bags,
and he labeled the bags with the number of plants inside. The plants were submitted to the crime
lab for testing. Rachel Norgart, an expert in forensic chemistry, testified that she tested 20 of the
plants that she received, and they all tested positive as marijuana. There was testimony that the
plants were later destroyed for health and safety reasons. This testimony established that the
plants found at defendant’s house and tested at the lab were the same plants and that they were
marijuana plants.

         Any issue regarding the number of plants went to the credibility of witnesses, which is a
matter for the jury to determine. People v Lemmon, 456 Mich 625, 637; 576 NW2d 129 (1998).
Detective Doty testified that there were 78 marijuana plants found. Defense witnesses testified
that there were 70 or 72 plants at the house on the day of the search. Defendant improperly
argues that the dispute over the number of plants indicated that he did not possess more than the
amount permitted under § 4 of the MMMA. The trial court previously determined that defendant
was not entitled to immunity under that statute. Thus, the only relevant inquiry relating to the
charges was whether defendant was manufacturing 5 to 45 kilograms of marijuana or between 20
and 200 marijuana plants. See MCL 333.7401(2)(d)(ii). Either the low number of 70 plants or
the high number of 78 plants was sufficient to establish that defendant was in possession of an
illegal amount of marijuana. It was the jury’s task to weigh the evidence and determine whether
defendant possessed the requisite amount of marijuana to meet the charged crimes. Accordingly,
there was no error in admitting Detective Doty’s testimony about the number of marijuana plants
recovered from defendant’s house. Defendant was not denied his constitutional right to due
process of law.

                      IV. QUALIFICATION OF AN EXPERT WITNESS

        Defendant challenges the admissibility of Detective Ludd’s testimony on the basis that
the expert witness was not qualified to testify regarding narcotics dealings pursuant to MRE 702.
Defendant has waived review of this issue. At trial, the prosecution moved to have Detective
Robert Ludd qualified as an expert in the field of street level narcotics trafficking. Defense
counsel stated he had “[n]o objection” to Detective Ludd’s qualification as an expert witness. A
party waives an issue if the party intentionally relinquishes or abandons a known right. People v
Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). Therefore, defense counsel’s approval of the
qualification extinguished any error and precludes appellate review of this issue. Id.

        Even if this issue had not been waived, there is no error requiring reversal. The
testimony involved how the evidence found in defendant’s house and on his cell phone was
generally indicative of weighing and selling marijuana. Detective Ludd was qualified to testify
because of his specific training and experience in the area of narcotics and his prior qualification
as an expert in street level narcotics trafficking.

                                 V. OTHER ACTS EVIDENCE

       Defendant asserts that the prosecution improperly introduced text messages from
defendant’s cell phone indicating that he was dealing in controlled substances other than


                                                -8-
marijuana. He claims that this evidence constituted inadmissible other acts evidence under MRE
404(b) and was unduly prejudicial. We disagree.

       Defense counsel did not preserve this issue by objecting to the admission of the evidence
regarding other controlled substances. Douglas, 496 Mich at 574. We review unpreserved
evidentiary issues for plain error affecting the defendant’s substantial rights, which requires a
showing of prejudice, in other words that the error affected the outcome of the proceedings.
Carines, 460 Mich at 763-764, 774. We also review de novo the question of whether a
defendant was deprived of a right without due process of law. People v Schumacher, 276 Mich
App 165, 176; 740 NW2d 534 (2007).

        Defendant argues that the trial court improperly allowed Detective Ludd to testify about
statements made by defendant in the three months prior to his arrest regarding his dealings in
controlled substances other than marijuana. The prosecution introduced as an exhibit the entire
record containing over 3,000 text messages from defendant’s cell phone from June 24, 2011, to
September 28, 2011. It then questioned the expert witness on certain incoming and outgoing
calls referring to drug transactions and payments. Some of those text messages referred to other
controlled substances such as Vicodin, Fentanyl, and Norco.

       According to defendant, this evidence was improperly admitted because it constituted
other acts evidence under MRE 404(b). Defendant’s argument lacks merit. MRE 404(b)
provides that, unless a delineated exception applies, “[e]vidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show action in conformity
therewith.” MRE 404(b) applies only to prior acts, not to prior statements. People v Rushlow,
179 Mich App 172, 176; 445 NW2d 222 (1989). A text message is considered a statement.1

        Here, the statements were admitted at trial as admissions by a party opponent under MRE
801(d)(2)(A). Such a statement is excluded from the definition of hearsay if it is “offered against
a party and is . . . his own statement . . . .” People v Goddard, 429 Mich 505, 523; 418 NW2d
881 (1988) (RILEY, J., concurring). The appropriate inquiry then is whether the admitted
statement is relevant. Rushlow, 179 Mich App at 176. 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.

       Defendant’s statements regarding controlled substances other than marijuana were
relevant. Specifically, they showed defendant’s intent to deliver drugs. Further, the statements
were not unfairly prejudicial. Evidence offered against a party is “by its very nature . . .
prejudicial, otherwise there would be no point in presenting it.” People v Fisher, 449 Mich 441,
451; 537 NW2d 577 (1995). “The pivotal consideration is whether the probative value of the


1
  See People v Shigwadja, unpublished opinion per curiam of the Court of Appeals, issued
January 19, 2017 (Docket No. 329471) (holding that the defendant’s threat “was a statement in a
text message, not an other act”). Although unpublished decisions are not precedentially binding
authority, MCR 7.215(C)(1), they may be persuasive. See People v Christopher Green, 260
Mich App 710, 720 n 5; 680 NW2d 477 (2004).


                                                -9-
testimony is substantially outweighed by unfair prejudice.” Id. The text messages were highly
probative of an element of the crime charged. The prosecution was required to prove that (1)
defendant knowingly possessed a controlled substance, (2) defendant intended to deliver the
controlled substance, (3) the substance in possession was marijuana and defendant knew that it
was, and (4) the marijuana was in a mixture that weighed less than five kilograms. MCL
333.7401(2)(d)(iii); see also People v Crawford, 458 Mich 376, 389; 582 NW2d 785 (1998).
The text messages at issue established defendant’s intent to deliver the controlled substances and
not to use them for personal consumption. They did not insert extraneous considerations such as
bias, anger, sympathy, or shock into the merits of the case. See Fisher, 449 Mich at 452-453,
citing People v Goree, 132 Mich App 693, 702-703; 349 NW2d 220 (1984). For these reasons,
there was no error requiring reversal in the admission of the challenged statements and defendant
was not deprived of his right to due process.

                       VI. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant claims that his trial counsel was ineffective for failing to object to the trial
court’s qualification of an expert witness and to the prosecution’s introduction of other acts
evidence. We disagree.

        Generally, “[a] claim of ineffective assistance of counsel presents a mixed question of
law and fact.” People v Brown, 294 Mich App 377, 387; 811 NW2d 531 (2011). “This Court
reviews a trial court’s findings of fact, if any, for clear error, and reviews de novo the ultimate
constitutional issue arising from an ineffective assistance of counsel claim.” Id. However,
because defendant failed to move for a new trial or an evidentiary hearing below, we review this
unpreserved claim of ineffective assistance of counsel for errors apparent on the record. People
v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008).

        To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate
“(1) that counsel’s representation fell below an objective standard of reasonableness, and (2) that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Douglas, 496 Mich at 592 (quotation marks and citation
omitted). “Effective assistance of counsel is presumed, and the defendant bears a heavy burden
of proving otherwise.” People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004).
Decisions regarding what evidence to present, how to question witnesses, and whether to raise
objections to procedures, evidence, or argument are presumed to be matters of trial strategy, and
this Court will not second-guess counsel’s strategic decisions nor will it analyze counsel’s
competence with the benefit of hindsight. People v Horn, 279 Mich App 31, 39; 755 NW2d 212
(2008); People v Unger, 278 Mich App 210, 242-243, 253; 749 NW2d 272 (2008).

        First, defense counsel’s failure to object to and actual affirmation of Detective Ludd as an
expert witness in street level narcotics trafficking does not constitute the ineffective assistance of
counsel. The record establishes that Detective Ludd’s training and experience were sufficient to
satisfy the requirements for an expert witness pursuant to MRE 702. In addition, his opinion
testimony was offered to assist the jury in understanding the evidence and determining a fact in
issue. Defense counsel is not required to make a meritless or futile objection. People v Putnam,
309 Mich App 240, 245; 870 NW2d 593 (2015). Therefore, defense counsel was not ineffective
by failing to challenge this decision.

                                                -10-
        Second, defense counsel’s failure to object to the introduction of defendant’s text
messages does not constitute the ineffective assistance of counsel. As previously determined, the
text messages were introduced as statements under MRE 801(d)(2)(A), not as other acts evidence
pursuant to MRE 404(b), and their introduction did not deprive defendant of a fair trial. An
objection to the admission of the statements as impermissible other acts evidence would have
been futile. Thus, defense counsel’s failure to raise a meritless objection to the introduction of
the text messages did not deny defendant the effective assistance of counsel. See id.

       Affirmed.



                                                            /s/ Henry William Saad
                                                            /s/ Deborah A. Servitto
                                                            /s/ Michael F. Gadola




                                              -11-
