Opinion
No. 309316
2013-09-26
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DAPHNE MICHELLE ALLEN, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court
LC No. 11-009738-FH
Before: SERVITTO, P.J., and CAVANAGH and WILDER, JJ. PER CURIAM.
Defendant appeals as of right her jury convictions of possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv), possession with intent to deliver less than five kilograms of marijuana, MCL 333.7401(2)(d)(iii), possession with intent to deliver less than 50 grams of heroin, MCL 333.7401(2)(a)(iv), and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. We affirm.
On September 14, 2011, a search warrant was executed at a house in which defendant lived. When the officers entered the home, defendant was standing near the dining room table in the dining room. Scales, empty plastic bags, empty vials, and defendant's purse were sitting on the dining room table. Defendant's driver's license listed the home under search as her residence. In a front bedroom of the house, different sized bags of marijuana were found in plain view and the packaging was consistent with the street level sale of marijuana. A loaded nine millimeter handgun was also in plain view in that bedroom. The marijuana had a street value of $7,500. There was also a digital camera in that bedroom and on it was a picture of the person named in the search warrant and he was sitting at a table with rubber gloves on and appeared to be "cutting up narcotics." A clear container with a blue lid was also in the photo. In the back room, an M-1 carbine assault rifle and a locked safe were found. The safe was opened and a .38 caliber firearm was found inside. A container with a blue lid was inside the safe and it contained heroin and cocaine packaged in several bags with varying weights. There was also money in the safe. The police officers testified that defendant told them the money was hers, which she denied at trial. A loaded stainless steel .380 handgun and a Russian SKS assault rifle with a scope, i.e., a sniper-type weapon, were found in the basement. Throughout the house there were pictures of defendant with the person named in the search warrant, including several poster-sized pictures hanging on the walls. While the police were at the house, a man came to the house and admitted to being there to purchase narcotics. Defendant testified that she had rented the front part of the house, including the front bedroom, for seven to nine months. She lived alone in the house. Defendant denied seeing the marijuana or gun in the front bedroom, and testified that drugs were not sold from the house. She also admitted that she was dating the person named in the search warrant, that she rented the house from him, that he came to the house to visit whenever he wished, and that he had a key to the back room which he kept locked. Defendant denied ever being in the back room, and denied having any knowledge of the guns or drugs found in the house. This appeal followed defendant's jury trial convictions.
Defendant argues that the prosecution's evidence was insufficient to prove beyond a reasonable doubt that she possessed the drugs or any of the firearms that were found in the house. We disagree.
A challenge to the sufficiency of the evidence is reviewed de novo. People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). We review the evidence in the light most favorable to the prosecutor to determine whether a rational trier of fact could have found that all essential elements of the crime were proved beyond a reasonable doubt. Id. at 196.
With regard to defendant's controlled substance convictions, the prosecution had to prove beyond a reasonable doubt that (1) defendant knowingly possessed marijuana, heroin, and cocaine, (2) defendant intended to deliver these controlled substances to someone else, (3) the substances possessed were in fact marijuana, heroin, and cocaine and defendant knew they were, and (4) there was less than five kilograms of marijuana, less than 50 grams of heroin, and less than 50 grams of cocaine. See People v Williams, 268 Mich App 416, 419-420; 707 NW2d 624 (2005). The possession element has been explained as follows:
Actual physical possession is unnecessary for a conviction of possession with intent to deliver; constructive possession will suffice. Constructive possession exists when the totality of the circumstances indicates a sufficient nexus between defendant and the contraband. Possession is attributed not only to those who physically possess the drugs, but also to those who control its disposition. In addition, possession may be either joint or exclusive. [People v Jessie Johnson, 466 Mich 491, 500; 647 NW2d 480 (2002) (citations omitted).]
"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 Johnson, 293 Mich App 79, 82-83; 808 NW2d 815 (2011) (citation omitted). Possession of a firearm can be actual or constructive. Id. at 83. Constructive possession of a firearm can be established "if the location of the weapon is known and it is reasonably accessible to the defendant." Id. (citation omitted). "Possession can be proved by circumstantial or direct evidence and is a factual question for the trier of fact." Id.
After review of the record, considered in the light most favorable to the prosecution, we conclude that the evidence was sufficient for the jury to find beyond a reasonable doubt that defendant possessed the controlled substances and at least one of the firearms found during the search of the house. Defendant testified that she rented the house from the man she was dating and lived alone in the house. Her possessions were in the house and there were photographs of her throughout the house. When the officers entered the house, defendant was the only person in the house and she was standing near the dining room table where scales, empty plastic bags, empty vials, and her purse were sitting. The marijuana and a loaded nine millimeter handgun were found in the front bedroom where defendant kept her clothing and other items. They were in plain view and in close proximity to where defendant was standing. See People v Cohen, 294 Mich App 70, 77; 816 NW2d 474 (2011); Johnson, 293 Mich App at 83. There was also a digital camera in her room which had a picture of her boyfriend sitting at a table "cutting up narcotics" next to a clear container with a blue lid—the same type of container that was found in the safe holding heroin and cocaine packaged in several bags with varying weights. The safe where the cocaine and heroin were stored was in the back room of the house. Although defendant testified that she never entered that back room because it had a locked door, all of the police officers testified that the door to the back room was not locked when they entered the house. In a sufficiency challenge "[a]ll conflicts in the evidence must be resolved in favor of the prosecution and we will not interfere with the jury's determinations regarding the weight of the evidence and the credibility of the witnesses." People v Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008). Further, a police officer testified that defendant admitted that the money in the safe was her money. Although defendant denied that admission during her trial testimony, again, witness credibility is a question for the jury. Id.
In summary, the totality of the circumstances indicates a sufficient nexus between defendant and the marijuana, cocaine, and heroin; thus, the evidence was sufficient to establish beyond a reasonable doubt that defendant was in possession of these controlled substances. See Johnson, 466 Mich at 500. The evidence was also sufficient to establish beyond a reasonable doubt that defendant was in possession of at least one of the several firearms found in the house. Further, in light of the amount of controlled substances possessed, the way they were packaged, the narcotic sales paraphernalia, the several guns, and the money (small denominations) in the house, and the fact that a potential drug buyer appeared at the house—where defendant lived alone—during the police search, there was also sufficient evidence from which a jury could conclude that defendant intended to deliver the controlled substances to other people. See People v Wolfe, 440 Mich 508, 524; 489 NW2d 748, amended 441 Mich 1201 (1992); Williams, 268 Mich App at 422; People v Ray, 191 Mich App 706, 708; 479 NW2d 1 (1991).
Affirmed.
Deborah A. Servitto
Mark J. Cavanagh
Kurtis T. Wilder