            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 25, 2020
               Plaintiff-Appellee,

v                                                                   No. 345832
                                                                    Cass Circuit Court
RYAN RAY DEWEERD,                                                   LC No. 18-010145-FH

               Defendant-Appellant.


Before: BORRELLO, P.J., and RONAYNE KRAUSE and RIORDAN, JJ.

PER CURIAM.

        A jury convicted defendant, Ryan Ray Deweerd, of possession of a controlled substance
(methamphetamines) contrary to MCL 333.7403(2)(b)(i). Defendant now appeals as of right, and
we affirm.

                                       I. BACKGROUND

        In 2016, defendant was sentenced, in relevant part, to probation after he was convicted by
plea of methamphetamine-related charges. Pursuant to the terms of his probation, he was not
permitted to “use or possess any controlled substances or drug paraphernalia” without a valid
prescription, “or be with anyone [he knew] to possess these items.” He was also required to “allow
the field agent into [his] residence at any time for probation supervision” and to permit searches
of his person or property without a warrant “if the field agent has reasonable cause to believe [he
had] items which violate[d] the conditions of [his] probation.” In 2018, probation agent Valerie
Lynn Tapia and two detectives performed a random compliance check of defendant’s home. The
only item of concern they found inside the home was a knife. However, in his driveway was an
unlocked vehicle with its windows down. Defendant stated that he had driven the vehicle that day,
but that it belonged to his mother. Defendant consented to a search of the vehicle.

        In the front seat cupholder of the vehicle, in plain view, the law enforcement team found a
clear, lidded container. Inside the container was a substance that the law enforcement team
believed to be methamphetamine. Also inside the vehicle were a butane lighter, clothing belonging
to defendant, and “tooters,” which are a kind of straw commonly used for snorting drugs, with



                                                -1-
“residue” at the end.1 A field test of the substance revealed it to be methamphetamine. Defendant
admitted that he was “currently a methamphetamine user,” but he denied that he knew about the
drugs or paraphernalia in the vehicle, and he was also adamant that they did not belong to his
mother. Defendant was arrested. The day after his arrest, defendant was given a urine drug test,
which showed him to be positive for methamphetamine and amphetamine. A laboratory test
confirmed the substance from the vehicle to be 2.540 grams of methamphetamine, with an
estimated street value of $250. One of the detectives explained that this was an unusually
significant quantity of methamphetamine “for someone that’s just a user.”

        At issue in this appeal is the trial court’s admission of defendant’s urine drug test, the
details of which we will discuss further below.

                                  II. PRESERVATION OF ISSUE

        The prosecution initially argued that defendant forfeited any challenge to the admission of
the drug test results. At oral argument, the prosecution withdrew that argument. However, this
Court generally draws its own conclusions about whether an issue was preserved for appeal. We
conclude that defendant properly preserved an objection to the admission of the drug test results.
However, as to the specific ground of a discovery violation, defendant acquiesced in the trial
court’s remedy that was less severe than preclusion of the evidence. Thus, we find defendant’s
challenge partially waived.

        It is undisputed that the drug test results were not properly disclosed to defendant in
discovery before trial pursuant to MCR 6.201. During Agent Tapia’s direct examination,
defendant objected to her testimony regarding defendant’s urine drug test as lacking foundation,
and the trial court sustained the objection on hearsay grounds. Tapia was then shown the drug test
results as “Proposed Exhibit 1,” and Tapia identified it as “our drug testing form” with defendant’s
name at the top and also bearing a handwritten note. Defendant then timely and appropriately
objected that he had never seen the document, whereupon the trial court excused the jury and gave
defense counsel an opportunity to review the report.

        Outside the jury’s presence, the trial court confirmed with defense counsel that he had an
opportunity to review the report. Defendant then further objected that the report did not indicate
what test was conducted, what standards it used, or how the test was conducted. He also pointed
out that the note suggested that a jail guard had performed the test, not Tapia, the testifying witness.
The trial court indicated that it shared some of defendant’s foundational concerns. Tapia explained
that the form was standard, and it was common to write notes on such forms. Some of the
handwriting was an enumeration of the specific drugs for which defendant was tested. Tapia
explained that the reference to the jail guard was because she personally could not go into the
bathroom with defendant to obtain the urine sample; rather, the guard went into the bathroom with
defendant. Tapia explained that she was present afterwards when defendant and the guard both
signed the form, and she personally filled out or wrote notes on the form otherwise.




1
    The “residue” was apparently never tested.


                                                  -2-
        Defendant then further objected that there was no foundation for the specific drug test used
or “the science behind that.” He also objected that Tapia appeared to lack any firsthand knowledge
of the chain of custody of defendant’s urine or of the actual testing of that urine, and she merely
filled out the form “based on a test performed by somebody else after seeing the cup.” The trial
court overruled defendant’s objection. The jury was brought back into the courtroom, and the
prosecution formally moved to admit the test result document. Defendant renewed his objections,
whereupon Tapia testified that the form was standard, the writing on the document was hers, she
had personally witnessed defendant and the guard sign the form, and she personally witnessed the
results of the drug testing because “they always bring it out to show us because we don’t rely on
the guards to read the test for us.” Her reading of the test was that defendant “was positive for
amphetamines and methamphetamine.” Defendant renewed his original objection. The trial court
ruled that it would treat defendant’s objection “as a continuing objection to the admission of the
document,” but it admitted the results into evidence.

        During cross-examination, Tapia explained that an officer was usually present when a urine
sample was obtained, but she was “not allowed to be” present for obtaining the urine sample
because she was female. Therefore, a male officer or county employee would obtain the sample.
She explained that defendant and the guard were in the bathroom for at most five minutes, she
observed them walk in and walk out, and there was no one else in the bathroom during that time
who could have been tested. She also explained that although she was trained in how to administer
a drug test and how to read the results, she did not know any of the science behind how the test
worked. The prosecutor specifically objected that Tapia was neither a scientist nor an expert
witness. Tapia explained that the results of drug tests were rarely sent out for confirmation because
doing so was expensive and most people would admit to being on drugs when they saw a positive
result.2 She could not recall any occasion on which a drug test was sent out for confirmation and
revealed to be wrong. She did not know how storage conditions might affect the drug tests, but
her office kept all drug supplies in a specific location and checked to ensure they were not expired.

        After Tapia finished testifying and was excused as a witness, defendant renewed his
objection that he had not been provided the drug test results before trial. He pointed out that he
also could not find anything in the police report or preliminary examination transcript discussing
a drug test in jail. Importantly, however, defendant did not seek to have the test results excluded
on that basis, but rather asked to be able to call a specific rebuttal witness who was not on his
witness list. Over the prosecutor’s objection, the trial court ruled that defendant would be
permitted to call the witness. Ultimately, defendant declined to do so.

         As the above summary shows, defendant timely raised an objection to the admission of the
drug test report on numerous grounds, including foundation and a discovery violation. Because
the trial court stated that it would treat the objection as continuing, we do not hold it against
defendant that some portions of his objection were not presented to the trial court until after the
document was admitted and after Tapia had finished testifying. Because the issue was presented
to the trial court and is pursued on appeal, it is preserved. Peterman v Dep’t of Natural Resources,
446 Mich 177, 183; 521 NW2d 499 (1994). However, defendant ultimately did not request that



2
    Defendant made no such admission, but did sign the form signifying that the test had been taken.


                                                 -3-
the report be stricken on the basis of the discovery violation. Rather, defendant requested the
opportunity to call a rebuttal witness, which the trial court granted over the prosecutor’s objection.
Defendant then thanked the trial court and stated that he had “[n]othing further.” Defendant’s
failure to seek any further relief constitutes acquiescence in the trial court’s remedy and thus
constitutes a waiver, precluding seeking alternative relief on appeal. 3 People v Pratton, 79 Mich
App 770, 771; 263 NW2d 15 (1977);4 People v Kowalski, 489 Mich 488, 503; 803 NW2d 200
(2011).

        However, context is critical. To the extent defendant acquiesced in the trial court’s ruling,
he clearly did so only in the context of his objection premised on the discovery violation. The trial
court had already made a ruling as to defendant’s objections on other grounds and stated that it
would treat those objections as continuing. The issue preservation requirements do not obligate
parties to engage in futile endeavors or to make disruptive nuisances of themselves to trial courts
by continuing to complain about matters already disposed of. People v Townsend, 25 Mich App
357, 361; 181 NW2d 630 (1970); Miller v Hensley, 244 Mich App 528, 532 n 2; 624 NW2d 582
(2001). Thus, we conclude defendant waived any argument on appeal that the drug test results
should have been excluded solely as a discovery violation sanction.5 However, we do not conclude
that defendant failed to preserve any other basis for seeking exclusion of the drug test results.




3
  We emphasize that recognizing and accepting a trial court’s adverse ruling, or accepting a trial
court’s partially-adverse ruling as better than nothing and deciding not to “push one’s luck,” is not
the kind of acquiescence that would constitute a waiver. The touchstone is that defendant did not
make the request at all on this particular ground and acquiesced in the trial court’s grant of
precisely what defendant did request.
4
  Published opinions of this court decided before November 1, 1990, are not binding under the
“first out rule,” MCR 7.215(J)(1), but they are nevertheless precedential under the rule of stare
decisis, MCR 7.215(C)(2), and they are therefore more than merely persuasive. See People v
Bensch, 328 Mich App 1, 7 n 6; 935 NW2d 382 (2019).
5
  In any event, preclusion of evidence is an “extreme” sanction for a discovery violation and should
not be imposed for mere negligence. People v Merritt, 396 Mich 67, 82; 238 NW2d 31 (1976);
People v Callon, 256 Mich App 312, 328; 662 NW2d 501 (2003). Even if we were to consider
this ground merely forfeited rather than waived, see People v McDonald, 293 Mich App 292, 295;
811 NW2d 507 (2011), defendant does not present any argument that the prosecutor’s discovery
violation was, for example, intentional, repeated or otherwise egregious. Furthermore, in crafting
a remedy for a discovery violation, trial courts must seek to balance the interests of the parties, the
courts, and the public under the circumstances of the case, and we review the court’s resolution
for an abuse of discretion. People v Davie, 225 Mich App 592, 597-598; 571 NW2d 229 (1997).
A lesser sanction than preclusion of evidence is preferable where doing so adequately protects the
parties’ interests. See People v Burwick, 450 Mich 281, 298; 537 NW2d 813 (1995). Defendant
does not provide any argument explaining why the trial court’s lesser sanction of granting him
time to review the evidence and an opportunity to call an unendorsed rebuttal witness was so
inadequate under the circumstances that it would constitute an abuse of discretion.


                                                 -4-
                               III. RELIABILITY OF DRUG TEST

        For the reasons discussed above, we therefore address defendant’s argument that the drug
test results should have been excluded, to the extent defendant premises that argument on his
assertion that the test was inadmissible because it lacked scientific reliability. Nevertheless, we
disagree with defendant.

        This Court reviews “for an abuse of discretion a trial court’s decision to admit or exclude
evidence.” People v Kowalski, 492 Mich 106, 119; 821 NW2d 14 (2012). “An abuse of discretion
occurs when a trial court’s decision falls outside the range of reasonable and principled outcomes.”
People v Johnson, 502 Mich 541, 564; 918 NW2d 676 (2018) (quotation marks and citation
omitted). A trial court’s interpretation of a rule of evidence is a question of law, and we review
such questions de novo. People v Jackson, 498 Mich 246, 257; 869 NW2d 253 (2015). Further,
a preserved trial error in the admission of evidence does not constitute grounds for reversal “unless,
after an examination of the entire cause, it affirmatively appears that it is more probable than not
that the error was outcome determinative.” People v King, 297 Mich App 465, 472; 824 NW2d
258 (2012).

        We note at the outset that Tapia was not presented as an expert witness, nor did her
testimony resemble expert testimony. The prosecution expressly disclaimed, in front of the jury,
that Tapia had any scientific expertise, which Tapia confirmed. Tapia explained that although she
knew how the drug test should be conducted and what the drug test did, she had no idea how the
drug test actually worked. She did not know how storage conditions might affect the tests, but she
did know that her office followed storage procedures. Thus, defendant’s argument premised on
MRE 702, which establishes prerequisites for the admission of expert witness testimony, is simply
inapposite. The trial court’s “gatekeeping” role under that evidentiary rule only applies to expert
testimony of scientific, technical, or other specialized knowledge introduced to assist the jury in
understanding the evidence. See MRE 702; see also Daubert v Merrell Dow Pharm, Inc, 509 US
579, 589-590; 113 S Ct 2786; 125 L Ed 2d 469 (1993); see also Gilbert v DaimlerChrysler Corp,
470 Mich 749, 779-780; 685 NW2d 391 (2004). The trial court was not required to ensure that
Tapia’s testimony was scientifically reliable.

      In contrast, this Court, in Gard v Mich Produce Haulers, 20 Mich App 402, 407-408; 174
NW2d 73 (1969), outlined the following foundational requirements that are necessary to admit
chemical test analyses under MCL 257.625a6:



6
  MCL 257.625a(6) now provides rules for admission of “blood, urine, or breath” tests under the
Motor Vehicle Code, but it only addressed blood when Gard was decided, among various other
amendments. Both parties seemingly agree that the statute is applicable by analogy despite being
part of the Motor Vehicle Code. Whether or not we agree with that proposition, we do agree with
the prosecution that this Court in Gard was not concerned with interpreting the statute, and its
focus on blood was only coincidental. Rather, Gard was truly concerned with setting forth general
standards for ensuring that biological samples were pure and any tests conducted on those samples
were reliable in any case. See Gard, 20 Mich App at 407. We therefore deem Gard applicable
irrespective of the statute.


                                                 -5-
              [T]he party seeking introduction must show (1) that the [chemical] was
       timely taken (2) from a particular identified body (3) by an authorized licensed
       physician, medical technologist, or registered nurse designated by a licensed
       physician, (4) that the instruments used were sterile, (5) that the blood taken was
       properly preserved or kept, (6) and labeled, and (7) if transported or sent, the
       method and procedures used therein, (8) the method and procedures used in
       conducting the test, and (9) that the identity of the person or persons under whose
       supervision the tests were conducted be established.

“[T]he accuracy of the methods used is a requisite element of establishing a sufficient foundation”
for the reliability of a drug test. People v Lucas, 188 Mich App 554, 580; 470 NW2d 460 (1991).
“However, the trial court is afforded considerable discretion in deciding whether a proper
foundation has been laid.” Id. (citation omitted). Thus, the Gard factors are broadly applicable to
this matter, but they need not be satisfied in a mechanistic or slavish manner.

        Most of the Gard factors are clearly satisfied by Tapia’s testimony as already summarized
above. To reiterate and expand on that summary, Tapia explained that defendant’s urine sample
was obtained from defendant within 24 hours of his arrest, defendant was directly supervised by a
person authorized to do so while giving the sample, and the cup into which defendant urinated was
kept in a sealed container until used. Tapia had been trained by her supervisor and staff in how to
administer the drug test, and the office followed storage procedures for the tests and checked
whether they were expired. Tapia explained that the test itself was a piece of paper placed into the
urine, and markings would either appear or not appear on the paper to indicate a positive or
negative result. Tapia personally observed the results of that test. It is unclear from Tapia’s
testimony how the paper came to be placed into defendant’s urine. Nevertheless, her testimony
strongly implies that she placed it into the urine personally or she personally observed the
placement.7 Tapia personally filled out the results form, which defendant and the guard also signed
to indicate that the test had been performed. Finally, Tapia explained that although such tests were
rarely sent to a laboratory for confirmation, she had been working at her job for more than seven
years and was unaware of any such test ever being found wrong.

        There is no evidence that defendant’s urine was labelled, but the evidence overwhelmingly
indicates that doing so was unnecessary. The evidence indicates that defendant’s urine was not
obtained by “an authorized licensed physician, medical technologist, or registered nurse designated
by a licensed physician,” but again we can conceive of no reason why doing so would have been
necessary under the circumstances. Thus, although not all of the Gard factors were specifically
satisfied, Tapia’s testimony was adequate for admission of the results under the trial court’s
“considerable discretion in deciding whether a proper foundation has been laid.” Lucas, 188 Mich
App at 580.

                             IV. ANY ERROR WAS HARMLESS




7
  Neither party was able to provide any clarification at oral argument, but neither party challenges
this presumption.


                                                -6-
        We finally observe that even if the admission of the urine drug test results had been
erroneous, any such error was extremely unlikely to have affected the outcome of the proceedings.
King, 297 Mich App at 472. Defendant was charged only with possession of methamphetamines.
The trial court properly instructed the jury that possession did not necessarily require ownership.
See M Crim JI 12.7. As noted above, a significant amount of methamphetamine was found in the
vehicle in defendant’s driveway. The methamphetamine was in plain view of the driver, along
with various paraphernalia. Defendant stated that he was the only possessor of the vehicle that
day and was “currently a methamphetamine user.” Defendant incongruously denied knowledge
of the methamphetamine while also insisting that the methamphetamine did not belong to his
mother. The methamphetamine found in the vehicle was both field-tested and independently
tested by a laboratory. Thus, the substance in the vehicle unambiguously was methamphetamine,
and defendant admitted that he was “currently a methamphetamine user,” and both facts
significantly bolstered the reliability of the urine drug test result. In any event, even if evidence
of the urine drug test results had been excluded, the evidence was overwhelming that defendant
was in possession of methamphetamine. The urine drug test result was, at the most, cumulative of
other evidence that was beyond serious challenge and more than a sufficient basis for convicting
defendant of the charged offense. See People v Matuszak, 263 Mich App 42, 52; 687 NW2d 342
(2004). The urine drug test was therefore of relatively little importance, and any error in its
admission was harmless.

       Affirmed.

                                                              /s/ Stephen L. Borrello
                                                              /s/ Amy Ronayne Krause
                                                              /s/ Michael J. Riordan




                                                -7-
