                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                       UNPUBLISHED
                                                                       November 24, 2015
               Plaintiff-Appellee,

v                                                                      No. 322850
                                                                       Eaton Circuit Court
THOMAS CLAUD KERN,                                                     LC No. 13-020378-FH

               Defendant-Appellant.


Before: METER, P.J., and BORRELLO and BECKERING, JJ.

PER CURIAM.

        Defendant, Thomas Kern, appeals as of right from his conviction following a jury trial of
operating or maintaining a laboratory involving methamphetamine, MCL 333.7401c(1) and
MCL 333.7401c(2)(f), and possession of methamphetamine, MCL 333.7403(2)(b)(i). The trial
court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 10 to 30 years’
imprisonment for each offense. We affirm.

        On July 3, 2013, police conducted a search of defendant’s house1 in response to a call
from his niece regarding items she found at the residence. Defendant was incarcerated at the
time the search was conducted, having been arrested on June 30, 2013 on an unrelated matter.
During the course of the search, police found a coffee bean grinder with white residue in it,
coffee filters, table salt, cold packs, a funnel with white residue on it, a lithium battery casing, an
empty box of decongestant, packaging for generic Sudafed, Coleman fuel, a hypodermic needle,
various plastic bottles, a bottle of lye, and two bottles of sulfuric acid—all items used in the
production of methamphetamine.




1
  The home belonged to one of defendant’s relatives, but several witnesses testified—and
defendant told police officers during an interview—that defendant was living at the house at the
time of the search.


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        Defendant’s brother testified at trial and recalled several instances in the past when
defendant confessed to using methamphetamine and to being “entertained by the process of
making” the drug. On or about July 6, 2013, Eaton County Sheriff’s Office Deputy Robert
Gillentine interviewed defendant and confronted him about the methamphetamine-related items
found in the house. Defendant denied that the products were his, blaming acquaintances to
whom he had given access to the house. He admitted, however, that he used three grams of
methamphetamine per day, a quantity which Gillentine described as “a lot.” Defendant told
Gillentine that he “had a pretty good idea” about how to make methamphetamine and that he
tried to make it on one occasion; however, he lacked the patience to make the drug. Defendant
told Gillentine that other people had manufactured methamphetamine in his house on several
occasions, the most recent of which was approximately three weeks before his arrest. He also
told Gillentine that he could obtain boxes of Sudafed and that he would trade the Sudafed for
methamphetamine. In the months leading up to the search of the house, defendant attempted to
purchase a quantity of Sudafed that would have put him beyond the limit a person can legally
purchase within a 30-day period; this purchase was denied by the retailer.

        Defendant argues that there was insufficient evidence to support his convictions. This
Court reviews de novo a claim of insufficiency of the evidence. People v Hawkins, 245 Mich
App 439, 457; 628 NW2d 105 (2001). “[W]hen determining whether sufficient evidence has
been presented to sustain a conviction, a court must view the evidence in a light most favorable
to the prosecution and determine whether any rational trier of fact could have found that the
essential elements of the crime were proven beyond a reasonable doubt.” People v Wolfe, 440
Mich 508, 515-516; 489 NW2d 748, amended on other grounds 441 Mich 1201 (1992). “The
question is whether the evidence presented at trial, together with all reasonable inferences arising
therefrom, was sufficient to allow a rational trier of fact to find each element of the crime proven
beyond a reasonable doubt.” People v DeLisle, 202 Mich App 658, 660; 509 NW2d 885 (1993).
“It is for the trier of fact, not the appellate court, to determine what inferences may be fairly
drawn from the evidence and to determine the weight to be accorded those inferences,” People v
Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002), as well as to make determinations
regarding issues of credibility, Wolfe, 440 Mich at 515. “ ‘Circumstantial evidence and
reasonable inferences arising from that evidence can constitute satisfactory proof of the elements
of a crime.’ ” People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999), quoting People v
Allen, 201 Mich App 98, 100; 505 NW2d 869 (1993).

       Defendant was convicted of operating or maintaining a laboratory involving
methamphetamine and possession of methamphetamine. MCL 333.7401c(1) provides as
follows:

               A person shall not do any of the following:

               (a) Own, possess, or use a vehicle, building, structure, place, or area that
       he or she knows or has reason to know is to be used as a location to manufacture a
       controlled substance in violation of section 7401 or a counterfeit substance or a
       controlled substance analogue in violation of section 7402.

              (b) Own or possess any chemical or any laboratory equipment that he or
       she knows or has reason to know is to be used for the purpose of manufacturing a

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       controlled substance in violation of section 7401 or a counterfeit substance or a
       controlled substance analogue in violation of section 7402.

Defendant’s jury was instructed consistent with both of these alternative subsections under the
statute.

         As to MCL 333.7401c(1)(a), defendant’s statements established that he possessed and
used the house in question as a residence. Furthermore, defendant’s niece and brother also
testified that the house was defendant’s residence, and police found mail addressed to defendant
in the house.

        Whether defendant knew or had reason to know that the house was being used as a
location for the manufacture of methamphetamine is also supported by the evidence. There was
evidence that methamphetamine was being manufactured in house, as police testified that they
found ingredients and materials used in the process of manufacturing methamphetamine, and
substances collected from the house tested positive for the presence of methamphetamine.
Defendant freely admitted to using methamphetamine and told Gillentine that someone had made
the drug in the house as recently as three weeks before the search. Defendant was also aware of
the manufacturing process and admitted to obtaining Sudafed, which he sometimes traded for
methamphetamine. Furthermore, he specifically identified that an acquaintance, a known
methamphetamine “cook,” had access to his home and had cooked methamphetamine there
before. This evidence supports conviction under MCL 333.7401c(a).

        Moreover, there was also sufficient evidence to support a conviction under MCL
333.7401c(1)(b), the alternative theory on which the jury was instructed. Regarding his
possession of the chemicals and laboratory equipment, defendant argues there is no evidence to
support a finding of possession because he could not have had possession or control over them
due to his incarceration. However, the evidence shows that he was in constructive possession of
the chemicals and equipment. Possession is established by showing “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) (citations and quotation marks omitted).
“[C]onstructive possession exists when the totality of the circumstances indicates a sufficient
nexus between the defendant and the contraband.” Wolfe, 440 Mich at 521. A jury may infer,
based on circumstantial evidence, that a defendant had knowledge of the presence of contraband.
People v Meshell, 265 Mich App 616, 622; 696 NW2d 754 (2005). “The ultimate question is
whether, viewing the evidence in a light most favorable to the government, the evidence
establishes a sufficient connection between the defendant and the contraband to support the
inference that the defendant exercised a dominion and control over the substance.” Wolfe, 440
Mich at 521 (citation and quotation marks omitted).




                                              -3-
        There was sufficient evidence for a rational jury to find that defendant constructively
possessed the manufacturing equipment.2 Defendant’s statements, the testimony of his brother
and niece, and the mail addressed to him found in the house establish a nexus between defendant
and the house. Police officers found all of the requisite chemicals for manufacturing
methamphetamine in the house, as well as two “one-pot” methamphetamine laboratories.
Defendant was well aware of the activity that went on inside the house, admitting he knew about
the methamphetamine manufacturing process, was acquainted with different “cooks,” knew that
methamphetamine had been produced in the house on different occasions, and that he had a
regular habit of using the drug. Defendant also admitted to obtaining Sudafed, one of the key
components in making the drug. Taken in its totality, and in a light most favorable to the
prosecution, this evidence was sufficient for a rational jury to find that defendant exercised
dominion and control over the laboratory equipment, even though he was arrested shortly before
the police found the equipment.

        In passing, defendant argues that the evidence was insufficient because the date listed on
the information alleged that the offenses occurred on or about July 3, 2013. Because he was
incarcerated on this date, defendant argues that he could not have committed the offenses as
charged and that the jury could not have found sufficient evidence of his guilt.

        We find no merit in defendant’s argument. “An information is required to contain the
‘time of the offense as near as may be’; however, ‘[n]o variance as to time shall be fatal unless
time is of the essence of the offense.’ ” People v Dobek, 274 Mich App 58, 82-83; 732 NW2d
546 (2007), quoting MCL 767.45(1)(b). In regard to the time of the alleged offense, MCL
767.51 provides:

       Except insofar as time is an element of the offense charged, any allegation of the
       time of the commission of the offense, whether stated absolutely or under a
       videlicet, shall be sufficient to sustain proof of the charge at any time before or
       after the date or dates alleged, prior to the finding of the indictment or the filing of
       the complaint and within the period of limitations provided by law: Provided,
       That the court may on motion require the prosecution to state the time or identify
       the occasion as nearly as the circumstances will permit, to enable the accused to
       meet the charge.

In addition, MCR 6.112(G) provides:

       Absent a timely objection and a showing of prejudice, a court may not dismiss an
       information or reverse a conviction because of . . . a variance between the
       information and proof regarding time, place, the manner in which the offense was
       committed, or other factual detail relating to the alleged offense.



2
  In addition, although defendant does not directly challenge his possession conviction, we find,
for many of the reasons stated above, that there was sufficient evidence for a rational jury to find
that he constructively possessed methamphetamine as well.


                                                 -4-
       There is nothing to indicate that time was of the essence to defendant’s convictions; thus,
the date listed on the information was not restrictive. Moreover, and contrary to defendant’s
contentions, the evidence was sufficient for a rational jury to find that he constructively
possessed the home and the methamphetamine laboratories even though he was incarcerated at
the time police searched the home. Indeed, as noted above, there was evidence that defendant
exercised dominion and control over both the premises and the contraband even though he was
detained at the time the contraband was discovered.

       Affirmed.



                                                            /s/ Patrick M. Meter
                                                            /s/ Stephen L. Borrello
                                                            /s/ Jane M. Beckering




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