            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     April 18, 2019
               Plaintiff-Appellee,

v                                                                    No. 342027
                                                                     Oakland Circuit Court
GARY TERRAIL MAHDI,                                                  LC No. 2014-252234-FH

               Defendant-Appellant.


Before: JANSEN, P.J., and METER and GLEICHER, JJ.

PER CURIAM.

       Defendant appeals by right from his convictions, entered after a retrial, 1 of two counts of
possession with intent to deliver less than 50 grams of cocaine and heroin, MCL
333.7401(2)(a)(iv), and one count of possession with intent to deliver less than 5 kilograms of
marijuana, MCL 333.7401(2)(d)(iii). We affirm.

                                       I. BACKGROUND

       Defendant’s convictions arise from a drug investigation by the Oakland County Sheriff’s
Department that culminated in the execution of a search warrant at an apartment located at 45
Lantern Lane. Defendant lived in a neighboring apartment, but was seen entering 45 Lantern
Lane on 10 to 15 occasions in the five weeks preceding the execution of the warrant. During the
search, officers found “baggies” of marijuana, cocaine, and heroin. Several “baggies” were
found in a larger Sam’s Club grocery bag which also contained defendant’s Auto Zone rewards


1
 After his first trial, defendant was similarly convicted of two counts of possession with intent to
deliver cocaine and heroin, MCL 333.7401(2)(a)(iv), and one count of possession with intent to
deliver less than 5 kilograms of marijuana, MCL 333.7401(2)(d)(iii). People v Mahdi, 317 Mich
App 446, 451; 894 NW2d 732 (2016). This Court held that the trial court erred by admitting
certain evidence and remanded the case to the trial court, which held a new trial. Id. at 462-474.
There is no concern that the trial court did not follow this Court’s previous rulings on remand.



                                                -1-
card, two recent hotel receipts containing defendant’s name, and a scale. The marijuana was
packaged in a bag of approximately 10 grams and a bag of approximately 6 grams; the heroin
was packaged into four “baggies” ranging in size from 0.1 to 1.2 grams; and the cocaine was in
the form of a “crack rock.” Other baggies of drugs were found throughout the apartment.
Officers also found several items indicative of drug trafficking in the apartment, including plastic
sandwich bags with the corners cut off and latex gloves. At trial, Detective Daniel Main testified
that the items found in the search of 45 Lantern Lane were consistent with a drug-trafficking
operation.

       As noted previously, the jury found defendant guilty of possessing with the intent to
deliver cocaine, heroin, and marijuana. The trial court departed upward from defendant’s
sentencing-guidelines range and sentenced defendant to concurrent prison terms of 76 months to
40 years for the cocaine and heroin convictions and 76 months to 15 years for the marijuana
conviction. This appeal followed.

                                           II. ANALYSIS

                             A. SUFFICIENCY OF THE EVIDENCE

        Defendant first argues that the evidence was insufficient to sustain his convictions.
Challenges to the sufficiency of the evidence are reviewed de novo. People v Solloway, 316
Mich App 174, 180; 891 NW2d 255 (2016). The reviewing Court must determine if, viewing
the evidence in the light most favorable to the prosecution, a rational trier of fact could find that
the prosecution proved each essential element of the crime beyond a reasonable doubt. People v
Reese, 491 Mich 127, 139; 815 NW2d 85 (2012). “[C]ircumstantial evidence and reasonable
inferences arising from that evidence can constitute satisfactory proof of the elements of a
crime.” People v James, ___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket No. 339504);
slip op at 4 (internal citation and quotation marks omitted). A trier of fact may consider
circumstantial evidence and all reasonable inferences the evidence creates. Solloway, 316 Mich
App at 180-181. “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 Flick, 487 Mich 1, 24-25; 790 NW2d 295 (2010) (internal citation and
quotation marks omitted).

        As an initial matter, defendant does not argue that the evidence at trial was insufficient to
prove an intent to deliver. Indeed, the “baggie” packaging of those substances, and the presence
of scales, latex gloves, and plastic bags with their corners cut off all indicate that the possessor of
the substances intended to sell them. See, e.g., People v Konrad, 449 Mich 263, 271 n 4; 536
NW2d 517 (1995); People v Wolfe, 440 Mich 508, 524; 489 NW2d 748 (1992). Defendant
argues, however, that the evidence was insufficient to prove that he possessed the substances, as
opposed to some other person. We disagree.

       “A person need not have actual physical possession of a controlled substance to be guilty
of possessing it. Possession may be either actual or constructive.” Wolfe, 440 Mich at 519-520.
Mere presence near a controlled substance is insufficient to prove constructive possession. Id. at
520. Constructive possession exists when the totality of the circumstances indicates a nexus


                                                 -2-
between the defendant and the substance sufficient to support an inference that the defendant
exercised dominion and control over it. Id. at 521.

        Viewed in the light most favorable to the prosecution, the totality of the evidence in this
case was sufficient for a rational factfinder to find, beyond a reasonable doubt, that defendant
possessed the controlled substances. Although the substances were not found in defendant’s
apartment, they were found in a neighboring apartment which defendant had frequently visited
over the course of five weeks. Moreover, the substances were found inside a bag that contained
several pieces of identifying information—each of which pointed to defendant. On the day of
the search, defendant was observed moving items around in the trunk of a Buick Regal parked
about 20 yards from 45 Lantern Lane. An Auto Zone rewards card issued in defendant’s name
was found in the bag containing the controlled substances. The records for this card indicate that
it was used primarily for the Regal. Inside the Regal, police also found a baggie of marijuana
which was packaged similarly to the drugs inside the Sam’s Club bag. Moreover, a Play Station
game console was found in the Regal and games for that console were found in the Sam’s Club
bag. None of the items in the Sam’s Club bag could be traced to any other person who had
frequented 45 Lantern Lane.

        Although circumstantial, this evidence was sufficient to form a rational connection
between defendant and the controlled substances found in 45 Lantern Lane—particularly those
found in the Sam’s Club bag—such that a reasonable jury could conclude beyond a reasonable
doubt that defendant exercised dominion and control over them. Accordingly, the evidence was
sufficient to prove that defendant possessed the substances.

                                   B. EXPERT TESTIMONY

       Defendant argues that the trial court erred by admitting Detective Main’s opinion
testimony. A trial court’s decision to admit evidence is reviewed for an abuse of discretion.
People v Muhammad, ___ Mich App ___, ___; ___ NW2d ___ (2018) (Docket No. 338300); slip
op at 1. “Preliminary questions of law, such as whether a rule of evidence or statute precludes
admission of particular evidence, are reviewed de novo.” Id. (internal citation and quotation
marks omitted). A trial court abuses its discretion when it admits evidence inadmissible as a
matter of law. Id.

        The prosecution offered Detective Main as “an expert in the area of street level drug
crimes.” Detective Main testified that he had been a police officer for almost 20 years and had
investigated over 5,000 drug-related crimes. Detective Main had received training related to
drug trafficking from several law-enforcement agencies and had testified as an expert in several
state and federal courts. Detective Main testified that he was well-versed in drug-terminology as
well as the packaging, distribution, and prices for illegal drug transactions. Based on this
testimony, the trial court admitted Detective Main as an expert in street-level drug crimes.

        Detective Main testified that he was the officer in charge of the investigation into the
drug activity at 45 Lantern Lane. Detective Main participated in the search of the apartment,
during which officers discovered numerous plastic bags with their corners cut off, latex gloves,
scales, cocaine, marijuana, and heroin. Detective Main noted that the drugs were packaged into
separate baggies, which was consistent with a street-level drug-sale operation. Detective Main

                                                -3-
testified that a syringe was found in a garbage bag in the apartment, but opined that the syringe
did not indicate heroin use because no other items consistent with drug use were found in the
apartment. Detective Main noted, however, that items consistent with marijuana use were found
in the apartment.

       The prosecution questioned Detective Main regarding the marijuana found in the Regal
and 45 Lantern Lane, asking “were you able to form an opinion whether that marijuana the way
it was found is more consistent with personal use or possession with intent to deliver?”
Detective Main responded that “based on all the factors that we found inside the apartment, it’s
more consistent with the intent to deliver.” Detective Main testified that his opinion was based
on “the presence of the latex gloves, the packaging material, the used baggies with the corners
missing, and then [drugs] broken down individually packaged for sale.”

        On appeal, defendant does not argue that the trial court erred by admitting Detective
Main as an expert witness. Rather, defendant argues that Detective Main’s testimony amounted
to an improper opinion on defendant’s ultimate guilt or innocence. An expert witness’s opinion
testimony “does not become objectionable merely because ‘it embraces an ultimate issue to be
decided by the trier of fact.’ ” People v McFarlane, ___ Mich App ___, ___; ___ NW2d ___
(2018) (Docket No. 336187); slip op at 4. An expert witness invades the province of the jury,
however, when he or she expresses “an opinion of the defendant’s guilt or whether the defendant
had a culpable state of mind.” Id. at ___; slip op at 6.

         Here, Detective Main did not give an opinion of defendant’s guilt or state of mind.
Rather, Detective Main testified that many items found in the apartment were indicative of drug
trafficking, although he acknowledged that other items were indicative of personnel use.
Detective Main did not opine that defendant had an intent to deliver controlled substances, but
testified that, as a whole, the items in the apartment would be consistent with such an intent.
Accordingly, detective Main’s testimony is best understood as an explanation of the significance
of the evidence, rather than any opinion of defendant’s guilt or state of mind. As such, the trial
court did not err by admitting Detective Main’s opinion testimony. 2

       Relatedly, contrary to defendant’s argument on appeal, the prosecution did not err by
referencing Detective Main’s testimony in its closing argument. Prosecutors are “free to argue


2
  We note that the prosecution’s and Detective Main’s use of the phrase “intent to deliver” was
ill-advised. An expert witness may not “phrase his opinion in terms of a legal conclusion.”
McFarlane, ___ Mich App at ___; slip op at 4, quoting People v Drossart, 99 Mich App 66, 75;
297 NW2d 863 (1980). Accordingly, we believe the “best practice” would be for experts to
avoid phrasing their opinion in statutory terms. See MCL 333.7401(1) (“[A] person shall not . . .
possess with intent to . . . deliver a controlled substance . . . .”) (emphasis added). Nonetheless,
we do not review an expert witness’s testimony for best practices. Despite the use of the
statutory phrase, we are unable to conclude that Detective Main’s testimony invaded the
province of the jury. As noted previously, when taken in context, Detective Main’s testimony is
best understood as an explanation of the significance of certain items found in the apartment at
45 Lantern Lane, not a comment on defendant’s guilt or innocence.


                                                -4-
the evidence and reasonable inferences from the evidence as they relate to their theory of the
case.” People v Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009).

                                C. REASONABLE SENTENCE

        Finally, defendant challenges his out-of-guidelines sentence. We review an out-of-
guidelines sentence for reasonableness. People v Lockridge, 498 Mich 358, 392; 870 NW2d 502
(2015). “[T]he standard of review to be applied by appellate courts reviewing a sentence for
reasonableness is abuse of discretion.” People v Steanhouse, 500 Mich 453, 471; 902 NW2d 327
(2017). A trial court abuses its discretion when it chooses an outcome falling outside the range
of principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).

         A sentence is reasonable when it is proportionate to the seriousness of the circumstances
surrounding the offense and the offender. Steanhouse, 500 Mich at 471. See also People v
Milbourn, 435 Mich 630, 651; 461 NW2d 1 (1990). When sentencing an individual defendant,
the trial court must first score the sentencing guidelines and take them into account. Lockridge,
498 Mich at 391. If the trial court chooses to depart from the sentencing guidelines, it must
justify the departure on the record by explaining “why the sentence imposed is more
proportionate to the offense and the offender than a different sentence would have been.” People
v Dixon-Bey, 321 Mich App 490, 525; 909 NW2d 458 (2017) (internal citation and quotation
marks omitted). Relevant factors for determining whether a departure sentence is more
proportionate than a sentence within the guidelines range “include (1) whether the guidelines
accurately reflect the seriousness of the crime; (2) factors not considered by the guidelines; and
(3) factors considered by the guidelines but given inadequate weight.” Id. (internal citations
omitted).

        Here, the trial court found that the guidelines range did not take into account defendant’s
extensive criminal history. Indeed, defendant had six prior felonies and 13 misdemeanor
convictions, which resulted in a prior record variable score of 125 points—50 points above the
maximum score of 75 points. The trial court considered defendant’s previous conviction for a
very similar offense and the fact that defendant was on probation for a drug conviction when he
committed the instant offenses. Defendant’s recidivism, according to the trial court,
demonstrated that defendant had not been rehabilitated by his previous sentences and that a
within-guidelines sentence would not deter defendant from committing future crimes. The trial
court found that a 30-month upward departure from the guideline’s range was appropriate. In
coming to this conclusion, the trial court found that defendant’s conduct was similarly egregious
to the conduct considered in the next-highest guidelines range. Accordingly, the trial court
issued a sentence falling within this next-highest range.

        Although the trial court’s 30-month departure was a substantial increase from the upper-
end of the guidelines range, it was not unjustified. We agree with the trial court that defendant’s
recidivism justified an increased sentence. The trial court’s well-reasoned justification for its
out-of-guidelines sentence adequately explained why the sentence imposed was more
proportionate than a within-guidelines sentence would have been.




                                                -5-
Affirmed.



                  /s/ Kathleen Jansen
                  /s/ Patrick M. Meter
                  /s/ Elizabeth L. Gleicher




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