                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED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

v                                                                  No. 319445
                                                                   Oakland Circuit Court
TALISHA MOORE,                                                     LC No. 2012-242828-FH

              Defendant-Appellant.


Before: BOONSTRA, P.J., and SAWYER and O’CONNELL, JJ.

PER CURIAM.

        Defendant, Talisha Moore, appeals as of right her convictions of manufacturing 200 or
more marijuana plants, MCL 333.7401(2)(d)(i), possession with intent to deliver 5 or more but
less than 45 kilograms of marijuana, MCL 333.7401(2)(d)(ii), and two counts of possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b, following a jury
trial. The trial court sentenced Moore to pay a $300 fine for each of her marijuana convictions
and to serve concurrent terms of two years’ imprisonment for her felony-firearm convictions.
We affirm.

                                           I. FACTS

       On July 26, 2012, utility theft investigator Michael Howe went to a home on Tamarron
Drive in Commerce Township to investigate a potential utility theft. According to Howe, the
home’s blinds were closed, large black plastic garbage bags partially covered the basement
windows, and the utility meter had been tampered with. Howe testified that he saw a silver Jeep
Wrangler in the home’s driveway and marijuana plants growing in the basement.

        Police obtained a warrant and searched the home on July 27, 2012. Officers found
Lionell Hicks in the home. They also found a digital scale, plastic bags, a blender, jars, drying
racks, food sealers, and garbage bags containing marijuana stems and leaves. Overall, officers
found 799 marijuana plants and about 14.5 kilograms of processed marijuana in the home.
Detective Kurt Bearer opined that it would have taken at least 60 days for the marijuana buds to
become mature enough to harvest. Officers found a loaded .45 caliber pistol inside a shoebox in
the master bedroom closet, as well as female clothing and mail addressed to Moore at both the
Tamarron address and a different address.



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       Dr. Jerry Zayid testified that he owned the house and had rented it to Moore and Hicks
since December 2009. Dr. Zayid testified that he received the rent in person from Moore each
month, and that Moore had paid the July 2012 rent.

                                    II. DOUBLE JEOPARDY

        Moore contends that her separate convictions of manufacturing marijuana and possession
with intent to deliver arising from the single drug operation in the house violated her right
against double jeopardy. We disagree.

          Both the Michigan and United States Constitutions prohibit the state from subjecting a
defendant to multiple punishments for the same offense. US Const, Am V; Const 1963, art 1, §
15; People v Smith, 478 Mich 292, 299; 733 NW2d 351 (2007). Generally, this Court reviews de
novo issues of constitutional law. People v Ream, 481 Mich 223, 226; 750 NW2d 536 (2008).
To preserve an issue, the appellant must challenge it before the trial court. People v Kimble, 470
Mich 305, 309; 684 NW2d 669 (2004). Moore’s double jeopardy issue is not preserved because
she failed to raise it before the trial court. This Court reviews unpreserved issues for plain error
affecting a defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130
(1999). An error is plain if it is clear or obvious, and it affects the defendant’s substantial rights
if it affected the outcome of the lower court proceedings. Id.

        MCL 333.7401(1)(d) prohibits, among other things, a person from manufacturing a
controlled substance or possessing a controlled substance with the intent to distribute it. It
further provides penalties for such conduct:

         (d) Marihuana or a mixture containing marihuana is guilty of a felony punishable
         as follows:

                (i) If the amount is 45 kilograms or more, or 200 plants or more, by
         imprisonment for not more than 15 years or a fine of not more than
         $10,000,000.00, or both.

                (ii) If the amount is 5 kilograms or more but less than 45 kilograms, or 20
         plants or more but fewer than 200 plants, by imprisonment for not more than 7
         years or a fine of not more than $500,000.00, or both.

                (iii) If the amount is less than 5 kilograms or fewer than 20 plants, by
         imprisonment for not more than 4 years or a fine of not more than $20,000.00, or
         both. [MCL 333.7401(d).]

         Moore contends that this Court should apply the Blockburger1 test to determine whether
her convictions violated her right against double jeopardy. We conclude that the Blockburger
test is not the appropriate test to apply in this case.



1
    Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932).


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        Courts apply the Blockberger test when a defendant’s conduct violates two different
statutes. People v Wakeford, 418 Mich 95, 106-107; 341 NW2d 68 (1983). But when the
dispositive question is whether the Legislature intended two convictions to result from a single
statute, it presents a “unit of prosecution” issue. Id. at 111. The question is whether the
Legislature intended a single criminal transaction to give rise to multiple convictions. Id. at 112.

        This Court considered a different provision of a similar statute in People v Green, 196
Mich App 593; 493 NW2d 478 (1992). In that case, a panel of this Court concluded that a
person could receive two different convictions for possessing two different controlled
substances. Id. at 595. We reasoned that the Legislature’s choice of language “turn[ed] on the
consideration of two separate factors[,]” the amount of the substance and the type of substance
possessed. Id. at 595-596. The Legislature intended that “possession of different types of
controlled substances warrants punishment for each particular controlled substance possessed.”
Id. at 596.

        This case is similar to Green. MCL 333.7401(d) explicitly refers to two different types:
kilograms and plants. It is clear from the statute that the Legislature contemplated that a
defendant could possess different types of marijuana. And the Legislature joined these types of
marijuana with the word “or”: a disjunctive word that prohibits either action. See People v
Kowalski, 489 Mich 488, 499 n 11; 803 NW2d 200 (2011). As in Green, we conclude that the
Legislature intended that possession of these different kinds of marijuana warranted punishment
for each type that a person possessed and allowed the prosecutor to charge a defendant separately
for actions involving different types of marijuana.

        In this case, the prosecutor charged Moore with the manufacture of more than 200
marijuana plants and possession with intent to distribute about 14.5 kilograms of processed
marijuana. The prosecutor’s charging decision did not double-count amounts of types of
marijuana, but it instead divided the types of marijuana as the statute expressly contemplates.
Further, the prosecutor charged Moore with distinct conduct related to the different types of
marijuana: it charged Moore with manufacturing the plants and possession with intent to
distribute the processed kilograms. We conclude that Moore’s conviction of two types of
marijuana crime did not violate double jeopardy principles.

                       III. INEFFECTIVE ASSISTANCE OF COUNSEL

       Moore contends that defense counsel provided her with ineffective assistance at trial
because counsel failed to present evidence that Moore was not living at the Tamarron home
when the officers raided it. We disagree.

        A criminal defendant has the fundamental right to effective assistance of counsel. US
Const, Am VI; Const 1963, art 1, § 20. Generally, this Court reviews for clear error the trial
court’s findings of fact and reviews de novo questions of law. People v LeBlanc, 465 Mich 575,
579; 640 NW2d 246 (2002). But a defendant must move the trial court for a new trial or
evidentiary hearing to preserve his or her claim that counsel was ineffective. People v Unger,
278 Mich App 210, 242; 749 NW2d 272 (2008). When the trial court has not conducted a
hearing, our review is limited to mistakes apparent from the record. People v Gioglio (On
Remand), 296 Mich App 12, 20; 815 NW2d 589 (2012).

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        To prove that his defense counsel was not effective, the defendant must show that (1)
defense counsel’s performance fell below an objective standard of reasonableness, and (2) there
is a reasonable probability that counsel’s deficient performance prejudiced the defendant.
Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v
Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). Defense counsel may be ineffective
for failing to reasonably investigate and pursue a defendant’s substantial defenses. See
Strickland, 466 US at 691. But the defendant must overcome the strong presumption that
defense counsel’s performance constituted sound trial strategy. Id. at 690; People v Odom, 276
Mich App 407, 415; 740 NW2d 557 (2007). Defense counsel’s decisions to call and investigate
witnesses are matters of trial strategy. People v Horn, 279 Mich App 31, 39; 755 NW2d 212
(2008). This Court will not substitute its judgment for that of defense counsel, or review this
issue with the benefit of hindsight. Odom, 276 Mich App at 415.

        In this case, defense counsel called Danielle Jones to testify at Moore’s preliminary
hearing. At the preliminary hearing, Jones testified that she leased Moore a different house in
Detroit in June 2012. Jones testified that she had observed Moore move boxes and personal
items into the Detroit house on June 1, 2012. Jones also testified that she observed that Moore
had changed her address on her driver’s license to the Detroit address on June 14, 2012. Counsel
did not call Jones to testify at trial.

         We conclude that counsel’s decision not to call Jones to testify at trial was not objectively
unreasonable. First, it is not clear that Jones’s testimony would have helped Moore. Jones
testified that Moore moved items into the Detroit house on June 1, 2012. Officers searched the
home on July 27, 2012. Detective Bearer testified that it takes 60 days for marijuana plants to
reach harvest. Various ages of marijuana plants were found in the house, and some had already
been harvested and processed. Accordingly, counsel may have determined that Jones’s
testimony was potentially incriminating. Second, there was other evidence presented at trial that
Moore resided at a second address, including that Moore’s vehicle was registered to another
address and mail was sent to Moore at another address. There was evidence from which counsel
could, and did, argue that Moore did not reside at the Tamarron address.

       Further, even were we to conclude that counsel’s performance was deficient, we are not
convinced that counsel’s failure to present Jones as a witness would have affected the outcome
of the trial. As discussed previously, Jones’s evidence that Moore no longer lived at the
Tamarron address would have been merely cumulative to evidence that Moore did not reside at
the Tamarron address when police raided it. Nor was Moore’s residence an actual element of the
offense. Rather, it was only one fact that tended to establish Moore’s identity. We conclude that
Moore has not demonstrated that it was reasonably probable that, had counsel presented Jones’s
testimony at trial, the result of the proceeding would have been different.

                            IV. SUFFICIENCY OF THE EVIDENCE

       In her pro-se supplemental brief filed pursuant to Michigan Supreme Court Order 2004-6,
Standard 4, Moore contends that the evidence was not sufficient to support her felony-firearm
convictions because she was not near the firearm when police raided the home. We disagree.



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        A claim that the evidence was insufficient to convict a defendant invokes that defendant’s
constitutional right to due process of law. People v Wolfe, 440 Mich 508, 514; 489 NW2d 748
(1992). Thus, this Court reviews de novo a defendant’s challenge to the sufficiency of the
evidence supporting his or her conviction. People v Meissner, 294 Mich App 438, 452; 812
NW2d 37 (2011). We review the evidence in a light most favorable to the prosecutor to
determine whether a rational trier of fact could find that the prosecutor proved the crime’s
elements beyond a reasonable doubt. Wolfe, 440 Mich at 514. Circumstantial evidence and
reasonable inferences arising from that evidence can prove the elements of a crime. People v
Kanaan, 278 Mich App 594, 622; 751 NW2d 57 (2008).

       “The elements of felony-firearm are that the defendant possessed a firearm during the
commission of, or the attempt to commit, a felony.” People v Avant, 235 Mich App 499, 505;
597 NW2d 864 (1999). The question is whether the defendant possessed the firearm at the time
he or she committed the felony. People v Burgenmeyer, 461 Mich 431, 439; 606 NW2d 645
(2000). A defendant need only constructively possess a firearm to establish the possession
element of the crime. People v Hill, 433 Mich 464, 470; 446 NW2d 140 (1989). A defendant
constructively possesses a firearm when the defendant knows the location of the firearm and it is
reasonably accessible to the defendant. People v Johnson, 293 Mich App 79, 82-83; 808 NW2d
815 (2011). A defendant possesses a firearm while committing a drug offense if “[t]he drugs and
the weapons were close enough that a jury reasonably could conclude that the defendant
possessed both at the same time[.]” See Burgenmeyer, 461 Mich at 440.

        In this case, Moore paid rent on the home for July 2012, and her vehicle was present at
the home the day before officers executed the search warrant. Officers found the gun inside a
bedroom closet that also contained documents addressed to Moore, women’s clothing, and a
purse with mail addressed to Moore. Inside a second closet in the same room, officers found a
bag of marijuana and an envelope of cash. The basement of the home contained 799 marijuana
plants. Viewing this evidence in the light most favorable to the prosecutor, we conclude that the
jury could reasonably infer that Moore constructively possessed the firearm while manufacturing
and possessing the marijuana.

       Affirmed.

                                                            /s/ Mark T. Boonstra
                                                            /s/ David H. Sawyer
                                                            /s/ Peter D. O’Connell




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