PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v VICKI RENEE DICKINSON, Defendant-Appellant.
No. 332653
STATE OF MICHIGAN COURT OF APPEALS
August 15, 2017
FOR PUBLICATION. Branch Circuit Court. LC No. 14-101331-FH. 9:00 a.m.
Before: BOONSTRA, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.
Defendant appeals by right her convictions, following a jury trial, for delivery of a controlled substance less than 50 grams,
I. PERTINENT FACTS AND PROCEDURAL HISTORY
On September 22, 2014, defendant visited a prisoner, Bobby Cain, at the Lakeside Correctional Facility in Coldwater, Michigan. Before that visit, Lakeside Correctional Facility Sergeant Todd Riley was advised by another corrections officer that a contraband drop might occur that day between Cain and defendant. Riley arranged for Cain and defendant to sit in the prison visitor room directly in front of (and about five feet from) the room‘s observation window so that he could observe them. During defendant‘s visit, Riley observed defendant go to a vending machine, make a purchase, sit back down next to Cain, take a “brown paper towel,”1 crinkle it up, and place it on the TV tray that Cain and defendant were using. Cain picked up the paper towel and cupped it in his hand. Riley observed Cain transfer what was in the paper towel from one hand to the other, and then hold that hand cupped next to his leg. Cain placed the empty crinkled paper towel back onto the TV tray. Riley went to
Michigan State Police (MSP) Trooper Jeremy Miller testified that he was dispatched to the prison to test the contraband for narcotics. Miller removed the contents from the balloon and disposed of the balloon in the trash. He then took defendant into custody and searched her. With her consent, he also searched her vehicle, as well as her purse inside the vehicle, with the assistance of a drug-detecting dog. The dog had previously given an alert indicating the possible detection of narcotics in defendant‘s car. No drugs were found in defendant‘s car or purse. Miller sent the substance seized from the balloon to the MSP lab for further testing; the testing revealed the substance to be 5.68 grams of heroin.
Miller testified that he prepared two police reports related to his investigation, an investigating officer report and a separate report related to the drug-detecting dog‘s search. Although both the prosecution and defense counsel possessed the investigating officer report, and although it reported that a dog was used in the search, neither was aware that the second police report existed. After Miller‘s testimony, defense counsel moved for a mistrial on the ground that defendant was prejudiced by the prosecution‘s failure to produce the second report in response to the defendant‘s discovery request. The trial court considered the evidence in the record and the fact that both parties lacked knowledge of the second police report before Miller testified to its existence. The trial court observed that defense counsel had cross-examined Miller and had obtained testimony from him that was favorable to the defense. Specifically, Miller admitted on cross-examination that this drug-detecting dog would often give a false alert in order to obtain his reward from his handler. Consequently, the trial court concluded that defendant was not prejudiced and denied defendant‘s motion for a mistrial.
Defendant testified at trial. She stated that she had purchased an ice cream bar for Cain from the vending machine, that it had made her hand cold, and that she used a napkin to warm her hand. She set the napkin down on the TV tray but never noticed that Cain picked it up. She also explained that she took prescription pain medication that she believed the dog had detected in her purse. She stated that she never possessed the heroin that was taken from Cain and knew nothing about it.
After the parties gave their closing arguments and the jurors were instructed, defense counsel renewed defendant‘s motion for a mistrial on the same discovery violation ground. The trial court again denied the motion. The jurors returned their verdict finding defendant guilty as described.
At defendant‘s sentencing, the prosecution objected to the scoring for Prior Record Variable (PRV) 7, which required assessment of points for subsequent or concurrent felony convictions, and Offense Variable (OV) 14, which required assessment of points if the offender was a leader in a multiple offender situation. The prosecution argued that defendant should have been assessed
The trial court next addressed the prosecution‘s objection to scoring OV 14 at zero points. The prosecution argued that defendant‘s conduct in sourcing, acquiring, and delivering the heroin to Cain was indicative of her leadership role for which she should have been assessed points. The defense countered that Cain was the leader and that defendant was an unsuspecting dupe. The trial court was persuaded by the prosecution‘s argument and assessed defendant 10 points for OV 14.
The trial court sentenced defendant as described. This appeal followed.
While her appeal was pending, defendant filed three postconviction motions with the trial court, two of which are relevant to defendant‘s appeal. Defendant moved for the entry of a judgment of acquittal and also moved for resentencing. In her motion for acquittal, defendant argued that she could not be convicted and punished for both delivery and possession of heroin because that would violate the constitutional prohibition against double jeopardy. In her motion for resentencing, defendant argued that OV 19 was incorrectly scored at 25 points because defendant‘s conduct did not threaten the security of the penal institution. Defendant contended that OV 19 should be scored at zero points, which would result in a lower minimum sentence range of zero to nine months.
The trial court issued a written opinion denying defendant‘s motion for acquittal. The trial court relied upon People v Smith, 478 Mich 292, 315-316; 733 NW2d 351 (2007), in which the Michigan Supreme Court adopted the double jeopardy test articulated in Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932), under which a trial court must examine whether each offense required proof of an element that the other did not. The trial court applied the Blockburger test and concluded that possession of a controlled substance and delivery of a controlled substance were separate offenses. The trial court held that defendant could be convicted of both offenses and punished separately for each without violating defendant‘s rights against double jeopardy. The trial court also denied defendant‘s motion for resentencing because it found that defendant‘s smuggling of a controlled substance into the prison
II. DOUBLE JEOPARDY
On appeal, defendant argues that the trial court violated her constitutional right to be free from double jeopardy because she was separately convicted and punished for both possession and delivery of heroin. We disagree.
We review de novo a claim that a conviction violates a defendant‘s protection from double jeopardy. People v Herron, 464 Mich 593, 599; 628 NW2d 528 (2001). We also review de novo questions of statutory interpretation. People v Collings, 298 Mich App 458, 461; 828 NW2d 392 (2012).
The United States Constitution and the Michigan Constitution both prohibit placing a defendant twice in jeopardy for a single offense.
In determining “whether the Legislature intended to impose multiple punishments for violation of more than one statute during the same transaction or incident,” trial courts must apply the “same elements” test articulated in Blockburger. Ford, 262 Mich App at 448. Under the Blockburger test, the trial court must inquire whether each offense contains an element not contained in the other offense. If the two offenses do not each contain at least one element that the other does not, double jeopardy bars additional punishment. Where “two distinct statutes cover the same conduct but each requires proof of an element the other does not,” a presumption exists that the Legislature intended multiple punishments unless the Legislature expressed a contrary intent. Id. at 448-449.
In People v Ream, 481 Mich 223, 238; 750 NW2d 536 (2008), the Michigan Supreme Court clarified that the ”Blockburger test is a tool to be used to ascertain legislative intent.” “Because the statutory elements, not the particular facts of the case, are indicative of legislative intent, the focus must be on these statutory elements.” Id.
More recently, the Court has stated that
[W]hen considering whether two offenses are the “same offense” in the context of the multiple punishments strand of double jeopardy, we must first determine whether the statutory language evinces a legislative intent with regard to the permissibility of multiple punishments. If the legislative intent is clear, courts are required to abide by this intent. If, however, the legislative intent is not clear, courts must then apply the abstract legal elements test articulated in Ream to discern legislative intent. [People v Miller, 498 Mich 13, 19; 869 NW2d 204 (2015) (citations omitted).]
Defendant
(1) Except as authorized by this article, a person shall not . . . deliver a controlled substance . . . .
(2) A person who violates this section as to:
(a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)(iv) and:
* * *
(iv) Which is in an amount less than 50 grams, of any mixture containing that substance is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not more than $25,000.00, or both.
The elements of delivery of less than 50 grams of heroin are: (1) defendant‘s delivery, (2) of less than 50 grams, (3) of heroin or a mixture containing heroin, (4) with knowledge that she was delivering heroin. Collings, 298 Mich App at 462.
(1) A person shall not knowingly or intentionally possess a controlled substance, a controlled substance analogue, or a prescription form unless the controlled substance, controlled substance analogue, or prescription form was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner‘s professional practice, or except as otherwise authorized by this article.
(2) A person who violates this section as to:
(a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)(iv), and:
* * *
(v) That is in an amount less than 25 grams of any mixture containing that substance is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $25,000.00, or both.
Thus, the elements of possession of less than 25 grams of heroin are: (1) the defendant knowingly or intentionally possessed a controlled substance; (2) the substance was heroin; and (3) the substance was in a mixture that weighed less than 25 grams.
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. Likewise, possession may be found even when the defendant is not the owner of recovered narcotics. Moreover, possession may be joint, with more than one person actually or constructively possessing a controlled substance. [Citations omitted.]
In identifying the statutory elements for each of the two offenses for which defendant
In the context of considering whether possession of heroin is a lesser-included offense of delivery of heroin (i.e., whether the offense of possession of heroin contains elements that are not subsumed in the elements of the offense of delivery of heroin), this Court has noted that the distinction between possession and delivery has been made “consistently” in our caselaw. People v Binder (On Remand), 215 Mich App 30, 35; 544 NW2d 714, vacated in part on other grounds 453 Mich 915; 554 NW2d 906 (1996). The Binder panel addressed defendant‘s argument, which is that it is impossible to deliver heroin without possessing it, as follows:
One might argue that it is impossible for a party to manufacture, deliver or intend to manufacture or deliver a controlled substance without at least constructive possession of it. However, in our estimation, such an analysis unnecessarily adds the element of constructive possession to the crime. Requiring proof of constructive possession inappropriately creates a doorway through which drug traffickers, particularly those high in the distribution chain, can escape.
Earlier judicial decisions finding the crimes of possession and delivery to be cognate offenses must have been made in partial recognition of the problems any other interpretation would create. We adopt the reasoning of our predecessors and reiterate that possession of a controlled substance is not a lesser, necessarily included offense of delivery. [Id. at 35-36.]
The reasoning of Binder applies in this context, is binding on this Court,2 and comports with our Supreme Court‘s directive to examine the abstract legal elements of the two offenses, rather than the facts of the case, in determining whether the protection against double jeopardy has been violated. Ream, 481 Mich at 238. While this defendant may indeed have completed the crime of possession of heroin before delivering it, the prosecution was not required to prove possession to convict her of delivery, and vice versa. Consequently, defendant‘s convictions for each offense and the trial court‘s sentencing of defendant separately for each offense did not violate defendant‘s rights against double jeopardy.
III. PRESERVATION OF EVIDENCE
Defendant further argues that the MSP‘s failure to preserve the balloon in which the heroin was found deprived defendant of due process, because she was prevented from performing DNA testing on the balloon. We disagree. Defendant did not preserve this issue by raising it before
To warrant reversal on a claimed due process violation involving the failure to preserve evidence, a “defendant must prove that the missing evidence was exculpatory or that law enforcement personnel acted in bad faith.” People v Hanks, 276 Mich App 91, 95; 740 NW2d 530 (2007). When the evidence is only “potentially useful,” a failure to preserve the evidence does not amount to a due process violation unless a defendant establishes bad faith. Arizona v Youngblood, 488 US 51, 58; 109 S Ct 333; 102 L Ed 2d 281 (1988). A “[d]efendant bears the burden of showing that the evidence was exculpatory or that the police acted in bad faith.” People v Johnson, 197 Mich App 362, 365; 494 NW2d 873 (1992). A prosecutor is not required to “seek and find exculpatory evidence” or assist in building the defendant‘s case, and it is not required to “negate every theory consistent with defendant‘s innocence.” People v Coy, 258 Mich App 1, 21; 669 NW2d 831 (2003). Further, unless the defendant can show the suppression of evidence, intentional misconduct, or bad faith, the prosecutor and the police are not required to perform DNA testing to satisfy due process. Id.
Defendant argues that the balloon that held the heroin should have been preserved, because DNA testing may have provided a basis for the jury to doubt that she possessed and delivered the heroin. In her brief on appeal, however, defendant concedes that the balloon was only “potentially exculpatory.” Defendant has not established that the balloon was, in fact, exculpatory evidence that would have exonerated her. Defendant does not argue that the police destroyed the balloon in bad faith. Nor do we find any bad faith from our review of the record. The trial record established that Miller took the contraband from Riley, removed the contents from the balloon, field-tested the substance that had been inside it, and disposed of the balloon according to standard police protocol for processing such evidence.
Moreover, the overwhelming evidence at trial established that defendant possessed and passed the heroin to Cain. Consequently, even if the balloon had been DNA-tested and someone else‘s DNA (rather than defendant‘s) was found on it, the test results would have made no difference to the outcome of the case. Therefore, we conclude that preserving and testing the balloon would not have changed the outcome of defendant‘s trial or exonerated her. Accordingly, defendant‘s claim that she was deprived of due process because the balloon was not preserved lacks merit. Carines, 460 Mich at 763-764.
IV. DENIAL OF MOTION FOR MISTRIAL
Defendant also argues that the trial court abused its discretion by denying her motion for a mistrial based on the prosecution‘s failure to produce the second police report in response to her discovery request. We disagree.
Further, we review for an abuse of discretion the trial court‘s denial of a motion for a mistrial. People v Bauder, 269 Mich App 174, 194; 712 NW2d 506 (2005). An abuse of discretion occurs when the trial court chooses an outcome that is outside the range of principled outcomes. People v Schaw, 288 Mich App 231, 236; 791 NW2d 743 (2010). “A motion for a mistrial should be granted only for an irregularity that is prejudicial to the rights of the defendant and impairs the defendant‘s ability to get a fair trial.” People v Lugo, 214 Mich App 699, 704; 542 NW2d 921 (1995). “For a due process violation to result in reversal of a criminal conviction, a defendant must prove prejudice to his or her defense.” People v Odom, 276 Mich App 407, 421-422; 740 NW2d 557 (2007). Further, the moving party must establish that the “error complained of is so egregious that the prejudicial effect can be removed in no other way.” People v Gonzales, 193 Mich App 263, 266; 483 NW2d 458 (1992).
Defendant contends that the prosecution‘s discovery violation deprived her of due process and she was prejudiced because, if she had timely received the second police report, she might have consulted an expert to determine if the dog could mistake the presence of a prescribed drug for heroin. She contends that this may have lent additional support to her defense theory that she never possessed any heroin. Defendant‘s conjecture, however, does not establish that she was prejudiced and entitled to a mistrial.
” ‘There is no general constitutional right to discovery in a criminal case . . . .’ ” People v Jackson, 292 Mich App 583, 590; 808 NW2d 541 (2011), quoting Weatherford v Bursey, 429 US 545, 559; 97 S Ct 837; 51 L Ed 2d 30 (1977). The Michigan Court Rules govern the scope of discovery in a criminal case.
In this case, defense counsel requested the disclosure of police reports under
Contrary to defendant‘s argument, our review of the record leads us to conclude that even if defendant had obtained the second police report in advance of trial and prepared her defense in the manner she contends she may have done, it would have made no difference to the outcome of her trial. Her delivery of the heroin to Cain was captured on video. The jurors saw the video and heard Riley‘s testimony that he had personally observed defendant commit the charged offenses. Accordingly, we conclude that any discovery violation on the part of the prosecution did not prejudice defendant. The trial court did not abuse its discretion in denying defendant‘s motion for a mistrial. Gonzales, 193 Mich App at 266; Lugo, 214 Mich App at 704.
V. SENTENCING
Finally, defendant argues that she is entitled to resentencing because the trial court incorrectly scored OV 14 and OV 19, resulting in an incorrect minimum sentencing range under the statutory sentencing guidelines. We disagree.
We review for clear error the trial court‘s factual determinations used for sentencing under the sentencing guidelines, and such facts must be supported by a preponderance of the evidence. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). We review de novo the trial court‘s interpretation and application of the statutory sentencing guidelines. People v Jackson, 487 Mich 783, 789; 790 NW2d 340 (2010). We will hold the trial court‘s factual determinations clearly erroneous only if we are left with a definite and firm conviction that the trial court made a mistake. People v Armstrong, 305 Mich App 230, 242; 851 NW2d 856 (2014).
When calculating the sentencing guidelines scores, a trial court may consider all of the evidence in the trial court record. People v Johnson, 298 Mich App 128, 131; 826 NW2d 170 (2012). “A sentencing court has discretion in determining the number of points to be scored, provided that evidence of record adequately supports a particular score.” People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002).3
Under
(1) Offense variable 14 is the offender‘s role. Score offense variable 14 by
determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points: (a) The offender was a leader in a multiple offender situation ........................................................................................................................... 10 points
(b) The offender was not a leader in a multiple offender situation ............................................................................................................................. 0 points
(2) All of the following apply to scoring offense variable 14:
(a) The entire criminal transaction should be considered when scoring this variable.
(b) If 3 or more offenders were involved, more than 1 offender may be determined to have been a leader.
In People v Rhodes, 305 Mich App 85, 90; 849 NW2d 417 (2014), we noted that the Legislature did not define what constitutes a “leader” for the purposes of OV 14. We therefore reviewed dictionary definitions and noted that “[t]o ‘lead’ is defined in relevant part as, in general, guiding, preceding, showing the way, directing, or conducting.” Id. We concluded that, for purposes of an OV 14 analysis, a trial court should consider whether the defendant acted first or gave directions, “or was otherwise a primary causal or coordinating agent.” Id. In People v Jones, 299 Mich App 284, 286-288; 829 NW2d 350 (2013), we analyzed, for OV 14 scoring purposes, the undefined terms “multiple offender situation” in relation to the undefined term “leader.” We held that “the plain meaning of ‘multiple offender situation’ as used in OV 14 is a situation consisting of more than one person violating the law while part of a group.” Id. at 287. We applied the plain meaning of those terms to the facts of the case and determined that the trial court‘s assessment of 10 points for the defendant‘s OV 14 score was correct and supported by several facts in the trial record. Id. at 287-288. Notably, we concluded that the defendant was involved in a “multiple offender situation” even though he was accompanied by only one other person and even though the other person was not charged in connection with the crime for which the defendant was convicted. Id.
In this case, in scoring OV 14, the trial court considered the “entire criminal transaction” as required under
Regarding OV 19,
Defendant does not dispute the trial court‘s conclusion that smuggling drugs into a penal institution creates serious problems for inmates and prison guards, but rather argues that OV 19 applies only to offenders who smuggle weapons into a prison. That argument, however, is unavailing because
Affirmed.
/s/ Mark T. Boonstra
/s/ Amy Ronayne Krause
/s/ Brock A. Swartzle