Opinion
353477
10-28-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JAMES EARL MCCLENDON, III, Defendant-Appellant.
UNPUBLISHED
Kent Circuit Court LC No. 18-010529-FH.
Before: Amy Ronayne Krause, P.J., and Thomas C. Cameron and Michelle M. Rick, JJ.
Per Curiam.
Defendant James Earl McClendon, III, appeals his jury-trial conviction of possession with intent to deliver 50 or more but less than 450 grams of heroin, second or subsequent offense, MCL 333.7401(2)(a)(iii); MCL 333.7413(1). The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 25 to 50 years' imprisonment. We affirm.
I. BACKGROUND
This case arose from a drug-trafficking investigation. Between October 22, 2018, and November 7, 2018, a confidential informant participated in three controlled purchases from defendant in front of a home on Worden Street in Grand Rapids, Michigan. The confidential informant purchased the substances with prerecorded funds that were provided by law enforcement. The substances that the confidential informant obtained from defendant field tested positive for either marijuana or cocaine.
On November 12, 2018, law enforcement executed a search warrant on the Worden Street home. In the basement, law enforcement located heroin, cocaine, marijuana, "sandwich baggies," digital scales, and a gun. Law enforcement also located a substantial amount of cash in the basement, including a $100 bill that had been used by the confidential informant to purchase substances during the November 7th controlled buy. Defendant was present at the home when the search warrant was executed, and he was searched. Defendant had cash in his pocket, which included a $5 bill that had been used during the November 5th controlled buy.
The jury found defendant guilty of possession with intent to deliver 50 or more but less than 450 grams of heroin, and defendant was sentenced as described above. This appeal followed.
Defendant was acquitted of possession of a firearm by a felon, MCL 750.224f.
II. ADMISSION OF EVIDENCE
Defendant argues that the trial court improperly admitted certain evidence. We disagree. We review rulings regarding the admissibility of evidence for an abuse of discretion. People v Burger, 331 Mich.App. 504, 510; 953 N.W.2d 424 (2020). "An abuse of discretion occurs when a trial court's decision falls outside the range of reasonable and principled outcomes." Id. (quotation marks and citation omitted).
A. OTHER-ACTS EVIDENCE
The heroin found during the search of the Worden Street home—not the controlled purchases—formed the basis of defendant's intent to deliver heroin charge. Before trial, the prosecutor moved for the admission of evidence relating to the controlled purchases under MRE 404(b). Defendant objected to admission of the evidence, arguing that the evidence was being "offered to show propensity" and that defendant would be unduly prejudiced by admission of the evidence because the jury would "conclude that the Defendant has a habit of selling controlled substances." The trial court admitted the evidence over defendant's objections.
Evidence of other crimes, wrongs, or other acts is inadmissible to prove that a defendant acted in conformity with those acts. People v Crawford, 458 Mich. 376, 383; 582 N.W.2d 785 (1998), citing to MRE 404(b). Such evidence may, however, be admissible for another purpose. People v Sabin (After Remand), 463 Mich. 43, 56; 614 N.W.2d 888 (2000). A non-exhaustive list of permissible purposes for admitting other-acts evidence is set forth in MRE 404(b)(1):
Evidence of other crimes, wrongs, or acts . . . may . . . be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.MRE 404(b) is a rule of inclusion, not exclusion. People v VanderVliet, 444 Mich. 52, 64-65; 508 N.W.2d 114 (1993), amended 445 Mich. 1205 (1994). Thus, relevant evidence of other acts does not violate MRE 404(b) unless it is offered for the sole purpose of demonstrating the defendant's criminal propensity to establish that he acted in conformity therewith. Id. at 65.
In VanderVliet, the Michigan Supreme Court adopted the approach to assess relevance under MRE 404(b) enunciated by the United States Supreme Court in Huddleston v United States, 485 U.S. 681, 691-692; 108 S.Ct. 1496; 99 L.Ed.2d 771 (1988):
First, that the evidence be offered for a proper purpose under Rule 404(b); second, that it be relevant under Rule 402 as enforced through Rule 104(b); third,
that the probative value of the evidence is not substantially outweighed by unfair prejudice; fourth, that the trial court may, upon request, provide a limiting instruction to the jury. [VanderVliet, 444 Mich. at 55.]"[I]t is essential that prosecutors . . . be able to give the [fact-finder] an intelligible presentation of the full context in which disputed events took place." People v Sholl, 453 Mich. 730, 741; 556 N.W.2d 851 (1996).
It is the nature of things that an event often does not occur singly and independently, isolated from all others, but, instead, is connected with some antecedent event from which the fact or event in question follows as an effect from a cause. When such is the case and the antecedent event incidentally involves the commission of another crime, the principle that the jury is entitled to hear the "complete story" ordinarily supports the admission of such evidence. [People v Delgado, 404 Mich. 76, 83; 273 N.W.2d 395 (1978).]
Although a "context" purpose is not explicitly articulated in the rules of evidence, other-acts evidence may be admitted for that purpose if it otherwise satisfies the requirements for admission under MRE 404(b). See People v Jackson, 498 Mich. 246, 268-271; 869 N.W.2d 253 (2015) (rejecting a res gestae exception to MRE 404(b) but reasoning that Delgado and Sholl "provide firm support for the notion that evidence meeting their 'res gestae' definition is potentially relevant and admissible").
We conclude that the evidence concerning the controlled purchases was relevant for the purpose of providing context to the jury of the charged offense of possession with intent to deliver heroin. The evidence explained why law enforcement executed a search warrant on the Worden Street home and why law enforcement took interest in the wrapping materials and scales that they discovered in the residence. Moreover, the jury needed to learn how prerecorded currency was used in the controlled purchases to understand the significance of law enforcement seizing some of that currency from defendant's person and from the basement of the residence associated with defendant. Within this context, it was more probable than not that defendant was delivering heroin given the large supply of heroin and the packaging materials that were located in the residence associated with defendant. Thus, the evidence was relevant to a material fact at trial.
Furthermore, contrary to defendant's arguments on appeal, this evidence was not unfairly prejudicial. MRE 403 "does not prohibit prejudicial evidence; only evidence that is unfairly so." People v Bass, 317 Mich.App. 241, 259; 893 N.W.2d 140 (2016) (quotation marks and citation omitted). Also, the danger of unfair prejudice must substantially outweigh the probative value of the evidence to require exclusion. MRE 403; Bass, 317 Mich.App. at 259. In this case, the other-acts evidence was more than marginally probative, and it is improbable that the jury gave it undue or preemptive weight. Thus, we conclude that the trial court did not abuse its discretion when admitting the evidence under MRE 404(b).
Furthermore, even if we were to conclude that the trial court abused its discretion in admitting the evidence, defendant would not automatically be entitled to a new trial. Rather, "the effect of the error [must be] evaluated by assessing it in the context of the untainted evidence to determine whether it is more probable than not that a different outcome would have resulted without the error." People v Lukity, 460 Mich. 484, 495; 596 N.W.2d 607 (1999). In this case, the untainted evidence supports that a large amount of money and heroin was located in the basement of the residence where the controlled purchases took place. Additionally, packaging material and scales were located in the residence, and testimony at trial supported that this evidence was consistent with the intent to deliver narcotics. Also, at the time the search warrant was executed, defendant admitted that he sold heroin on a regular basis, that there were "several ounces" of heroin in the basement, and that he earned some of the cash seized from the basement through drug sales. Thus, the prosecutor presented overwhelming evidence indicative of possession with intent to deliver heroin. In light of this evidence, it is not more probable than not that the jury's verdict would have been different without the evidence of the controlled purchases. See id.
B. SUBSTANCES OBTAINED DURING THE CONTROLLED PURCHASES
Defendant next argues that the trial court abused its discretion by admitting evidence concerning the substances that the confidential informant obtained from defendant during the controlled purchases. According to defendant, the prosecutor failed to lay the proper foundation for admission of the evidence. We disagree.
Authentication of an exhibit requires only "a prima facie showing that a reasonable juror might conclude that the proffered evidence is what the proponent claims it to be." People v Smith, Mich. App, ; N.W.2d (2021) (Docket No. 346044); slip op at 13 (quotation marks and citation omitted). Upon such a showing, the evidence should be submitted to the jury to decide "whether the evidence is reliable and what weight to give the evidence, if any." Id. In this case, Detective Stephen Dumond testified that he field tested the substances that the confidential informant obtained from defendant and that each test was positive for either marijuana or cocaine. The detective also testified that some of the evidence at issue looked like marijuana. Consequently, the trial court did not abuse its discretion by admitting the evidence. See id. Moreover, any error would be harmless for the reasons already discussed and because testimony supported that defendant informed Detective Dumond that he sold marijuana, heroin, and cocaine. See Lukity, 460 Mich. at 495.
III. PROPORTIONALITY OF DEFENDANT'S SENTENCE
Defendant next argues that the trial court violated the principle of proportionality when it sentenced him to serve 25 to 50 years' imprisonment. We disagree. "We review for an abuse of discretion whether a sentence is proportionate to the seriousness of the offense." People v Armisted, 295 Mich.App. 32, 51; 811 N.W.2d 47 (2011).
"[A] sentence is reasonable under [People v Lockridge, 498 Mich. 358; 870 N.W.2d 502 (2015)] if it adheres to the principle of proportionality set forth in [People v Milbourn, 435 Mich. 630; 461 N.W.2d 1 (1990)]." People v Walden, 319 Mich.App. 344, 351; 901 N.W.2d 142 (2017). Milbourn's "principle of proportionality . . . requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender." Id. at 351-352 (citation and quotation marks omitted). "[A] departure sentence may be imposed when the trial court determines that the recommended range under the guidelines is disproportionate, in either direction, to the seriousness of the crime." People v Steanhouse (On Remand), 322 Mich.App. 233, 238; 911 N.W.2d 253 (2017), vacated in part on other grounds 504 Mich. 969 (2019) (citation and quotation marks omitted).
In this case, defendant's 300-month minimum sentence is within the properly calculated sentencing guidelines range. "[A] sentence within the Legislature's guidelines range is presumptively proportionate," People v Odom, 327 Mich.App. 297, 315; 933 N.W.2d 719 (2019), and "this Court is required to review for reasonableness only those sentences that depart from the range recommended by the statutory guidelines," People v Anderson, 322 Mich.App. 622, 636; 912 N.W.2d 607 (2018). Importantly, "MCL 769.34(10) provides that a sentence within the guidelines range must be affirmed on appeal unless the trial court erred in scoring the guidelines or relied on inaccurate information[.]" People v Powell, 278 Mich.App. 318, 323; 750 N.W.2d 607 (2008). See also People v Schrauben, 314 Mich.App. 181, 196 n 1; 886 N.W.2d 173 (2016) (" . . . Lockridge did not alter or diminish MCL 769.34(10)[.]"). Because defendant was sentenced within the recommended minimum sentence range and does not claim that the trial court relied on inaccurate information or erred when scoring the guidelines, his sentence is not subject to appellate review. See id. at 196.
We acknowledge that in People v Steanhouse, 500 Mich. 453, 471 n 14; 902 N.W.2d 327 (2017), our Supreme Court did "not reach the question of whether MCL 769.34(10) . . . survives Lockridge." This was the case "[b]ecause both defendants received departure sentences[.]" Id.
Nonetheless, we have reviewed defendant's sentence for reasonableness and conclude that the trial court did not abuse its discretion. In imposing the sentence, the trial court cited the minimum sentence range of 99 to 320 months' imprisonment. The trial court explained that a sentence on the high end of that range was appropriate because of defendant's prior criminal record, which included nine felony convictions and four previous distribution cases. The trial court also found that defendant's intention was to make a living selling drugs, that he was "selling death" to individuals in the community, that defendant failed to heed warnings that he should stop selling drugs, and that defendant would continue to sell drugs if he was released from prison before he was "old[.]" Therefore, we conclude that trial court did not abuse its discretion when it imposed defendant's sentence.
Affirmed.