People v. Brown

APP 279 MICH PEOPLE v BROWN 16, 2007, Docket No. 271164. Submitted November at Detroit. Decided 22, 2008, May at 9:00 a.m. Craig by jury G. Brown was convicted in the Oakland Circuit Court delivering manufacturing of and a controlled substance classified 333.7401(2) 1, 2, 3, (b)(¿£), possession in schedule or MCL of a 1, 2, controlled substance classified in schedule or MCL 333.7403(2)(b)(¿¿). court, McDonald, J., The John J. sentenced the year probation, days defendant to one of with the first 90 to be jail, pay $4,200 served in him and ordered in costs. The appealed, Code, alleging, part, that Mich Admin R 338.3122(2), expressly which states that an anabolic steroid that is through implants intended for administration to cattle or other species approved by nonhuman and which has been the United Drug States Enforcement Administration for such administration specifically excepted unconstitutionally is from schedule is vague person ordinary intelligence because a of cannot read the illegal possess rule and conclude that it can be in a form consumption intended for nonhuman an anabolic steroid listed in schedule 3. Appeals

The Court of held: 338.3122(2) intent, possessor’s 1. Rule focuses on the not on physical possessed. form of the anabolic steroid at the time it is possession While of an anabolic steroid that is intended for through implants illegal, possession administration to cattle is not consumption illegal. of an anabolic steroid intended for human overwhelming circumstantial evidence indicates that defendant had not intended to use the anabolic steroids on cattle species or some other nonhuman but had intended its use for consumption. human The anabolic steroids involved in this case were a controlled substance. estoppel relitigation 2. Collateral bars the of the issues raised regarding the defendant all but one of the search warrants validity involved in this matter because of those warrants was upheld appeal in an from a conviction in a different circuit court that arose from some of the defendant’s conduct the instant reasonably concluded, person given case. A cautious could have People v Brown steroids, steroids, likely knowledge of of use steroids, possession there was a substantial basis for a probable finding cause that anabolic steroids would be found support urine to the issuance the search the defendant’s sample defendant. for a urine from the warrant poliсe, when the Fourth Amendment violation occurred 3. No software, password-protected using the EnCase forensic searched by computer contained on a owned files of the defendant that were landlord, computer use the who had allowed the defendant to his computer. gave police her consent to search the and who the prosecutorial are defendant’s claims of misconduct 4. The without merit. properly the defendant’s motion for a 5. The trial court denied directed verdict. imposing costs on the defen- 6. The trial court did not err in expenses prosecution’s reimburse the dant under MCR 771.3 to respect expert to an witness at trial.

with the claims of ineffective assistance 7. None of has merit. counsel Although may merit to the defendant’s 8. there be some during argument an interview that statements that he made employment procured discharge the threat of from his as under improperly police used to secure a search warrant for officer were records, that the state- his medical the defendant failed to show statements were used ments or information derived from the against him. claim, Contrary the defendant’s the trial court did state 9. denying mistrial. reasons for the defendant’s motion for its Affirmed. J., concurring dissenting part, disagreed part and White, 338.3122(2) unambigu- plainly and the conclusion that Rule

with ously possession provides of an anabolic steroid in a form that the through implants expressly administration that is intended for by approved species has been nonhuman and which cattle or other Drug Administration for such the United States Enforcement illegal possessor anabolic if the intends the administration is consumption. The “intended” is directed for human word steroid approved, drug expressly the is made at the use for which by possessor. the not the use intended — Steroids. Substances Anabolic Controlled Pharmacy identifies the anabolic steroids rule that The Board and that prohibited substances are schedule 3 controlled that 279 Mich Opinion op the Court exempts expressly from schedule 3 anabolic steroid that through implants intended for administration to cattle or other species approved by nonhuman and that has been the United Drug States Enforcement Administration for such administration unconstitutionally vague; gives adequate is not the rule notice that possession of an anabolic stеroid listed in schedule 3 with the by illegal intent it be consumed a human is while the possession of an anabolic steroid listed in schedule 3 with the through implants intent it be administered to cattle is not illegal; legality possession by of such is not determined physical possessed form of the anabolic steroid the time it is but (Mich possessor’s regarding Code, intent its use Admin R 338.3122). Cox, Michael A. Attorney General, Thomas L. Casey, General, Solicitor David G. Gorcyca, Prosecuting Attor- ney, Joyce Todd, Chief, F. Appellate Division, and Tho- Grden, mas R. Assistant Prosecuting Attorney, for the people.

Robert J. Dunn and Craig G. Brown in propria persona. RJ.,

Before: and WHITE and JJ. ZAHRA, O’CONNELL, EJ. Defendant appeals right as of jury his trial ZAHRA, conviction in the Oakland Circuit Court of violating 333.7401(2)(b)(ii) MCL (delivery and manufacture of a 3) controlled substance classified in 1, 2, schedule or 333.7403(2)(b)(ii) and MCL (possession of a controlled 3).1 substance 1, 2, classified in schedule The trial alleged Some of defendant’s conduct in the instant case led to a previous jury Lapeer There, trial in jury conviction Circuit Court. neglect duty, convicted 750.478, defendant of willful acquit MCL but delivery ted him of substance, three counts of of a controlled MCL 333.7401(2)(b). days jail. He was affirmed, sentenced to 180 in This Court Brown, unpublished opinion per Appeals, curiam of the Court of (Docket 7, April 254476), 31, issued May 2005, No. and on our Supreme application Court denied appeal. People for leave to Brown, 472 Mich 922 People v Brown the first year probation, sentenced him to one court $4,200 in costs. The jail, to be served days on is whether significant presented appeal most issue 338.3122(2) Code, unconstitutionally is Mich Admin R 338.3122(2) focuses on the vague. We hold it is not. Rule an steroid intent. Possession of anabolic possessor’s implants through is “intended for administration of an illegal. Conversely, possession to cattle” is not Id. consumption anabolic steroid intended for human illegal. We affirm.

I. BASIC FACTS AND PROCEEDINGS Defendant was a officer with the Almont Police police City Department. and the Brown Police Department Timothy County Lieutenant Donnellon of the St. Clair February Sheriffs testified that Department he investigating City was Brown Police Officer Albert Geoit for anabolic-steroid use. Donnellon testified that investigation investigate the Geoit led him to defen- The dant. search warrants issued this case indicate told the him police supplied Geoit that defendant anabolic steroids. Winters,

Donnellon asked Michael with inspector Service, any the Postal Inspеction intercept suspi- 364, Lakeville, cious addressed to parcels PO. Box Michigan, County. post which is within Oakland defendant, office was registered only box defen- post February dant had access to the office box. On 2003, a for defendant’s office parcel post arrived box. Winters a federal search warrant requested inspect warrant, After Winters ex- parcel. obtaining parcel ecuted the search himself. The contained 10 Michigan which the State Po- packages Finaplix-H, laboratory lice contained Trenbolone. The confirmed injec- animal applicator did not contain an for package trial, tion. At Winters admitted that defendant did not pick up parcel. arrive to the Winters also admitted that previously that, he had in regard testified to Tren- bolone, use, “[i]f it’s for veterinary legal.” its 1, 2003,

On March Donnellon executed a warrant search defendant’s residence. The owner of the build- ing, Gladys Graves, lived on the second story and defendant rented the first floor. The police found evi- dence linking floor, the first including a filled-out employment application and credit cards. In only first-floor bedroom appeared in, tо be lived police found a magazine, 2000,” “Anabolics laying on kitchen, the bed. In the first-floor the police found a topical steroid, anabolic Testosterone Androgel, which available prescription. police The discovered addi- tional anabolic-steroid-related magazines. police also found defendant’s credit-card statements reflecting purchases Co., from Websa the source of Finaplix-H in the parcel, Finafarm, a company that sells a kit that makes possible the human consumption of ana- (kit). bolic steroids Lapeer County Sheriff Detective Nancy Stimson recovered such a kit in a garbage bag from defendant’s house. Donnellon ordered a kit from Finafarm, and Stimson testified regarding the similari- ties between the kit found at defendant’s residence and the kit ordered by Donnellon. Donnellon also testified that the kit he received was very similar to the kit found in defendant’s residence. trial,

At Stimson also testified that Graves had a computer upstairs that Graves allowed police search. Stimson brought the computer to Robert Gottschalk, expert retrieval, electronic-data investigation. Gottschalk removed the hard drive used EnCase forensic software to make a copy of the hard drive. Gottschalk testified that EnCase software v Brown

Opinion of the Court allows of all files that have not been reproduction overwritten, In including particular, Internet files. he testified — — image, is refer

it created it created which a to as image, copy everything mirror is an exact that’s on the a drive; only everything hard not the data but else that’s Maybe copies there. file that was deleted at one time. It a all of the data off of it. copied searched the hard drive for anabolic-

Gottschalk terms, and found numerous e-mails re- steroid-related purchases to defendant’s of anabolic steroids. lating a defen- Donnellon also obtained search warrant dant’s urine for anabolic steroids. Defendant refused to times, he provide sample eventually a urine several but did so. The was sent to American Institute of sample (AIT). Toxicology sample Defendant’s urine first was steroids, generally specifically tested for but not for Evans, Trenbolone. The test was but Michael negative, AIT, and director of later retested defendant’s founder Trenbolone, specifically positive. urine for and it was Evans, expert toxicology, testified that Tren- veterinary practices bolone is used in to increase muscle A special syringe injects pencil-like mass cattle. cattle He pellet slowly Trenbolone into to be released. can extracted testified that Trenbolone be from kit; kit like that pellets specifically, with a conversion Donnellon, is similar to the one found received which each at defendant’s residence. Evans testified that in defendant’s office box con- Finaplix-H package post 20,000 Trenbolone, is milligrams tained which be- He testified that dosages. tween 200 and Evans require. is more than one human would amount for use inappropriate testified that Trenbolone animals, and dogs. such as cats smaller friend, Henry, Michael testified for the asked Henry defense. testified that he Henry’s dog. jury order Finaplix-H convicted defendant, appeals right. and he as of 338.3122(2)

II. CONSTITUTIONALITY OP MICH ADMIN R CODE, Pharmacy Defendant Board of argues Michigan 338.3122(2) Rule is unconstitutional. 333.7401(1),

MCL provides: article, Except by person a as authorized this shall not manufacture, create, deliver, possess with or intent to manu- facture, create, substance, deliver a prescrip- or controlled a form, prescription practitioner tion or a counterfeit form. A by licensed this the administrator under article shall not dispense, prescribe, or administer a controlled substance for legitimate recognized professionally other than therapeu- purposes scope tic or practice scientific or outside the of licensee, practitioner, applicant. or 333.7401(2)(b)(ii) MCL further that provides per- “[a] to[,] son who [a]ny violates section as other con- trolled 1, 2, 3, substance classified in schedule or except marihuana[,] guilty felony is of a punishable by impris- onment years for not more than 7 or a fine of not more than $10,000.00, or both.

Similarly, 333.7403(1), provides MCL that person knowingly intentionally [a] not possess shall or a substance, controlled analogue, a controlled substance or a prescription substance, unless form the controlled con- analogue, prescription trolled substance or form was ob- from, directly pursuant to, tained or prescription valid or practitioner order acting of a while course of the practitioner’s professional practice, except or as otherwise by authorized this article. 333.7403(2)(b)(ii)

MCL further provides per- “[a] son who violates this section as to” v Brown Opinion the Court 1, 2, or classified schedule substance [a] controlled pre- penalty is which a except controlled substance (c), (d), (a), (b)(i), or a controlled or in subdivision scribed felony punishable analogue guilty is of a substance years a fine of not or not more than imprisonment for $2,000.00, or both. than more Trenbolone, a is whether Here, question the central sub- is a controlled Finaplix-H, in the drug contained 338.3122(1), 1, 2, Rule or 3. in schedule stance classified steroids; exemptions,” 3; anabolic entitled, “Schedule that, states in another excepted unless listed specifically or [u]nless mixture, material, preparation

schedule, compound, any steroid, including any quantity of an anabolic contains isomers, if the existence salts, salts of isomers its specific possible chemical within such salts of isomers rule, in this 3. As used designation, is included schedule following any means steroid” the term “anabolic chemically and which are drugs or hormonal substances testosterone, es- other than related to pharmacologically corticosteroids, рro- and which trogens, progestins, and growth[.] mote muscle 338.3122(1)(w) identifies “Tren expressly then

Rule bolone.” 338.3122(2) anabolic steroid “[a]n provides

Rule through administration intended for expressly which is and which species other nonhuman to cattle or implants enforce- drug States by the United approved has been specifi- administration is for such administration ment Trenbolone is schedule 3.” from cally excepted the United approved that has been anabolic steroid for and Human Services Secretary of Health States cattle or other through implants administration 1308. 21 CFR species. nonhuman unconstitu- 338.3122 is that Rule argues Defendant to provide it fails because vagueness void for tionally prohibited fair notice of conduct. Specifically, defendant claims that because the Michigan Board of Pharmacy exempted 338.3122(2), Trenbolone in Rule the posses- sion or intent to deliver it became lawful.

“ ‘To determine whether a statute is void for vague- ness, a court examines the entire text of the statute ‍​​‌​‌​‌‌​​​​‌‌​​​‌‌‌‌‌‌‌​​​‌‌‌‌‌‌‌​‌​‌​​‌​‌​‌​​​‍” gives the statute’s ordinary words their meanings.’ Pierce, People 394, 398; 272 Mich App 725 NW2d 691 (2006), quoting People v Piper, 642, 646; 223 Mich App 567 NW2d 483 A statute is unconstitutionally if vague persons of ordinary intelligence must necessar- ily guess at meaning. Pierce, its 398-399, supra citing Munn, 198 Mich App 499 NW2d 459

Here, thе plain and unambiguous language of Rule 338.3122(1)(w) expressly identifies “Trenbolone” as a prohibited schedule 3 controlled substance. Rule 338.3122(2) exempts “Trenbolone” as a schedule 3 controlled substance if only “expressly intended for administration through implants to cattle or other nonhuman species ....” There guesswork is no in ap plying Rule 338.3122 plainly because it and unambigu ously identifies Trenbolone as a controlled substance. Trenbolone is excluded from being a controlled sub stance if only it is expressly intended to be used or administered “through implants to cattle or other non human . . species Thus, ..” defendant’s argument Rule 338.3122 facially unconstitutional vagueness is without merit. 338.3122(2)

The dissent concludes that Rule is void for vagueness, reasoning that a person of ordinary intelligence cannot read pertinent statutory and regulatory provisions and conclude that when Tren- bolone is in a form not intended for human consump- tion, its possession can be illegal. dissent, in our v Brown form of the view, physical focuses on the erroneously possessing intent not the when drug, possessor’s such a reading do not conclude that drug. We statu- pertinent is None of the regulation reasonable. the conclusion regulatory provisions supports or tory on its Trenbolone turns legality possessing that the Rather, it Rule possessed. form at the time is physical 338.3122(2) Posses- possessor’s on the intent. focuses “intended admin- steroid that is for sion of anabolic not Id. illegal. cattle” is through implants istration of an steroid intended Conversely, possession anabolic is consumption illegal.2 for human Moreover, vagueness is as Rule 338.3122 not void case. The trial court here specifically this applied that “the at issue jury instructed the substance Trenbolone, is which is a controlled substance case for administration ‘expressly it intended unless implant[s] spe- to cattle other non-human through ” 338.3122, Rule These instructions accord with cies.’ must and, therefore, challenge rejected. defendant’s be III. SEARCHWARRANTS subjected he to six Defendant next claims that was Fourth Amendment search warrants violation of the and Const art of the United States Constitution (1) a The six warrants access to provided § 11. search (3) (2) records, de- sample, defendant’s medical urine (4) (5) box, residence, post fendant’s office (6) Co., from Finafarm. from records records Websa intent, regardless possessor’s prosecution establish the must Here, overwhelming drug. physical circumstantial form of the using on cattle in this is that defendant not Trenbolone evidence case was species. Rather, supports the the evidence or some other nonhuman Finaplix-H ordering Trenbolone was extract conclusion consumption. for human Opinion op the Court Here, already several courts have all reviewed but urine, the search warrant for defendant’s which was previous not raised in appeal. case, the In the instant the trial that pre- court concluded collateral estoppel challenging vented defendant from further the validity remaining of the search We agree warrants. with the trial court. Brown,

In People v unpublished opinion per curiam (Docket 7, of the Court Appeals, issued April 2005 254476), rejected No. this Court expressly defendant’s warrants, claims that the instant search the except one for sample, defendant’s urine Our were invalid. Su- preme subsequently Court denied applica- Brown, tion for leave appeal. People Mich 472 (2005).

The doctrine of applies collateral estoppel to criminal Swenson, cases. Ashe v US 436, 443; Ct 1189; 90 S L Ed 2d 469 Collateral estoppel bars reliti- of an in gation issue a subsequent, litigation different the parties between same prior where the proceeding valid, culminated in a final judgment and the issue was actually litigated both necessarily and determined. Gates, 154; 452 NW2d 627 only Collateral if estoppel applies the issue was necessarily determined the judgment prior the proceeding. Id. 158. “An necessarily issue is deter- only mined if it is ‘essential’ to the judgment.” Id. “Collateral estoppel applies only the where basis of the can prior judgment be clearly, ascertained definitely, unequivocally.” Id. Here, there is no that dispute validity the of the warrants, instant search except the for warrant the sample, urine previously litigated were and necessarily Further, determined. defendant was afforded the oppor- tunity indeed participated litigating the search People v Brown

Opinion the Court addition, In Circuit Court. Ingham warrants Ingham indicates that precedent Court Supreme County Prosecutor and the Oakland County Prosecutor estoppel, of collateral party purposes the same are and “creatures they functionally equivalent are because state[,] be to be the аnd thus should considered Gates, at 156. See party.” supra same of his urine claims that search Defendant also was stale and because warrant was unconstitutional “ i.e., facts, “bare bones.” ‘A inadequate contained if a substantial basis upheld search should be warrant probability is a fair to conclude there exists ” place.’ in the stated sought the items will be found Mich NW2d 61 Whitfield, 461 People v v memo- (2000), People Whitfield, unpublished quoting Septem- of the Court of issued opinion Appeals, randum “ (Docket 207229). ‘The reviewing 1998 No. ber reasonably person a cautious court should ask whether there a substantial basis could have concluded that was “ ” underly- ‘The finding probable for of cause.’ Id. the be in a common sense and ing affidavit must read reviewing In decision to realistic manner....’” Id. findings reviews the trial court’s of suppress, Court uphold findings fact clear error and will those unless left a definite and firm conviction that a mistake with App v 253 Mich 655 Taylor, was made. People (2002). This de novo the trial NW2d 291 Court reviews motion to ruling ultimate on the defendant’s court’s Id. suppress. seized, unconstitutionally it

Generally, if evidence is of improperly from excluded trial. Exclusion must be to police as a deterrеnt mis obtained evidence serves conduct, right privacy, preserves the protects 1, 12-13; S Ohio, 392 88 Ct Terry US judicial integrity. law that L 2d 889 “It is settled 1868; 20 Ed 128 [May- 279 Mich op Opinion the Court probable cause search must exist at the time the is issued that probable search warrant cause exists person justified when reasonable caution would be of criminal is in concluding evidence conduct the place Russo, stated to be People searched.” (citations (1992) omitted). 584, 606-607; 487 NW2d 698 passage The of time is a consideration in deciding valid probable whether cause exists. measure support staleness of information in aof search warrant circumstances, on totality rests including the criminal, thing seized, to be to be place searched, and the 605-606; character the crime. Id. at v Sobczak-Obetts, 108; App 97, Mich NW2d

Defendant claims that there is no evidence he recently had used Trenbolone. The affiant averred that on February 2003, Donnellon indicated that Geoit admitted purchasing steroids on three occasions from defendant. Donnellon informed the affiant that defen- dant instructed Geoit on how to administer anabolic Further, steroids. Donnellon indicated to the affiant thаt Geoit’s home had been searched and that anabolic steroids were found. The affiant also averred that Almont Police Chief Eugene Bruns indicated that he had known years, defendant for three and that during year the first injected himself with insulin to treat However, diabetes. Bruns indicated that defen- dant later required an internally installed insulin pump regulate sugar, his blood and that defendant had increased his muscle bulk and experienced mood swings. The affiant learned from Dr. Russell Bush that anabolic-steroid use aby diabetic causes unstable blood sugar could cause the need for insulin pump. The affiant averred that she had obtained information indicating that steroids remain in body the human two weeks after that, use. affiant last averred in her v Brown drug she has observed that of years police experience, drugs they use the that sell. also tend to traffickers to conclude that Here, basis existed a substantial anabolic steroids would a fair that probability there was knowledge Defendant’s in defendant’s urine. be found of steroids, steroids, promotion and his his of of sale that basis to conclude provided use substantial steroid in- with steroids. Defendant’s was involved defendant his swings, along and moоd with creased muscle mass to could be related regulator, an insulin which need of use, the conclusion that supported steroid police for time. That the using been steroids some had de- indicates that steroids Geoit’s home discovered possession had of steroids. Given may fendant have also steroids, and steroids, of use of knowledge defendant’s steroids, reasonably of cautious likely possession concluded that there was a substan- person could have cause. finding probable for the tial basis Moreover, is not because defendant required reversal his urine positive to how evidence of has failed show with affected the outcome the trial. Consistent test instruction, used prosecution jury the trial court’s challenging the limited purpose the evidence for he for steroids purchased defendant’s assertion However, the give dog. prosecution to his Henry ste- that defendant presented purchased evidence Specifically, use. personal prosecution for roids in defen- of used steroid kits found presented evidence his ste- suggesting numerous e-mails garbage, dant’s was Finaplix-H use, upon his statement arrest roid indepen- Tаken his of steroids to Geoit. sale legal, combination, provides over- this evidence dently or purchase did not whelming evidence that defendant Thus, give dog. his assum- Henry Trenbolone test result was positive steroid ing that App Mich 116 279 130 Opinion op the Court admitted at trial improperly impeach Henry, to reversal is required overwhelming nonetheless not because evidence credibility was to presented put Henry’s question. IV SEARCH OF COMPUTER argues police Defendant the violated his Fourth rights by searching Amendment his password-protected e-mail files of owner, with the consent the computer’s who had allowed defendant to use the computer. Const, Am IV, 1, 11, §

US and Const art guarantee right of people the the to be free from unreasonable searches and People seizures. v Borchard- (1999). Ruhland, 278, 293-294; 460 Mich 1 597 NW2d However, right personal may is not be invoked parties. Zahn, third v People 438, 446; 234 Mich App (1999). NW2d For individual assert search, standing to challenge the individual must have had a legitimate expectation of privacy place in the or searched, location expectation society recog which nizes Powell, as reasonable. v People Mich 560; 599 NW2d 499 The defendant hаs the of establishing standing, burden People Lombardo, 500, 505; 216 Mich App (1996), 549 NW2d 596 and in deciding issue, the the court should totality consider the of Smith, the circumstances. People “ 360 NW2d 841 ‘Factors relevant to the deter mination standing of include ownership, possession control of the area seized; searched or item and/or historical use the property item; ability or regulate access; totality surrounding of the circumstances search; the existence or subjective nonexistence of a anticipation privacy; and the objective reasonable ness of the expectation privacy considering the spe ” (citations Powell, cific facts of the supra case.’ at 563 omitted). v Brown Opinion op the Court did not own that defendant

Here, record reflects it located. was the residence which computer computer, there to the he was allowed access Although the computer use right he had a is no evidence that regulate he others’ could and there no evidence and Indeed, children Graves’s computer. to the access the computer. used grandchildren challenge standing had Further, even if defendant there is nо Fourth computer, search police’s expressly con- Graves Amendment violation because sented to the search. are a warrant and seizures conducted without

Searches se, subject specifically per to several established unreasonable Bustamonte, v Schneckloth exceptions. and well-delineated People v (1973); 218; 2041; L Ed 854 S Ct 36 2d 412 US 93 (1996). 92; 549 Champion, 452 Mich ‍​​‌​‌​‌‌​​​​‌‌​​​‌‌‌‌‌‌‌​​​‌‌‌‌‌‌‌​‌​‌​​‌​‌​‌​​​‍849 NW2d exception and general to the warrant established One pursu- probable requirements is a search conducted cause Schneckloth, supra [Borchard- 219. at ant to consent. Ruhland, supra 293-294.] from the person must come

Generally, that consent a being party searched or from third whose is property authority property. over the who common possesses 177, 181; 2793; 110 S Ct v 497 US Rodriguez, Illinois authority” 2d is based 111 L Ed 148 “Common by persons generally the property “on mutual use of ... .” purposes for most access control having joint 7;n 94 S Matlock, 415 US 171 Ct United States v (1974). Further, a 988; party L Ed 2d 242 third 39 may to a search actual to consent authority without if belief police officer’s render a search valid Rod- reasonable. objectively was authority consent LaBelle, App v 273 Mich riguez, supra; People (2006). However, the consent 221-222; 525 729 NW2d other a if the not render search valid a third does party App 279 Mich is party present expressly objects to the search. 1515; Georgia Randolph, 547 US 126 S Ct (2006); 164 L Ed 2d People Lapworth, 424, 427; 730 Although police NW2d 258 officer not may premises remove someone from the the purpose preventing objection, the officer not required person locate an absent to obtain the person’s consent. Id. at 427-428.

Here, dispute there is no the computer was separate located Graves’s residence. In his on brief brief, appeal Standard Administrative Order No. 2004-6, Standard 4, defendant indicates that he was handcuffed in his residence when Graves consented to computer. Thus, the search of the not was present in Graves’s to object, residence and Graves’s consent therefore remains valid.

Defendant also argues3 Graves’s consent was invalid because his e-mail account protected by was password. specifically argues He though that “even the files allegedly were using accessed the of Ms. computer police Graves the had no right password to enter those protected files without a making search warrant.” In argument, defendant claims the prosecution misled the trial court representing “anyone, that anyone — can use open up computer that and found the [sic] Defendant concludes that ruling “[t]his information.” only could have on been based false the information anyone that log could onto the computer and view the Defendants e-mail password protected files.”

Police Officer Gottschalk, Robert an expert the field retrieving data, of electronic testified he that after computer, received the he drive, removed the hard used EnCase forensic to copy software make a argument

3 Defendantfirst raised this after his conviction. v Brown allows that EnCase software drive. He testified hard overwritten, files have not been of all reproduction he testified that In including particular, Internet files. — — image, a refer to as created the which is it created it everything that’s on the image, copy a mirror exact everything else that’s drive; only the data but hard not copies at time. It file that deleted one Maybe there. a was the of it. all of data off hard he the drive copied

He testified that searched documents, found several terms and steroid-related ste- purchase that reference the including e-mails roids. the of EnCase propriety have discussed

Few cases (CA Andrus, 483 F3d 711 software. In United States v 10, 2007), father consented to the defendant’s defendant’s bedroom. Id. computer search of directly software to access police 713. The used EnCase determining the need for a the hard without first drive at 713-714. There was password. name or Id. user testimony equipment that someone without forensic password defendant’s user name and would need the defendant’s user profile. access files stored within the Id. at 714 n 1. issue in “[t]he indicated that critical our

The court whether, totality under the circum- analysis is could police], [the these officers stances known defendant’s had reasonably [the father] have believed computer. a search of the authority to consent we must ask ‘whether negative, Phrased in the conceivably could be such surrounding circumstances person [the would doubt reasonable further upon and not act it without consent] father’s ” (citations omitted). The then court Id. at 720 inquiry.’ “ reasonably indicated that, the circumstances [i]f noted of or mutual use control had father] [the Aрp 134 279 Mich 116 computer, over the were no obligation officers under Here, to ask clarifying Id. is questions.” there no control, dispute control, that Graves had if not exclusive computer. over the Accordingly, officers were under obligation no to ask whether defendant’s files were Thus, a protected by password. defendant’s claim that Amendment Fourth rights his were must violated be rejected.

V PROSECUTORIAL MISCONDUCT Generally, a claim of prosecutorial is misconduct a novo, constitutional issue that is a reviewed de but trial findings court’s factual are for reviewed clear error. Abraham, v People 272; 256 Mich App 265, 662 NW2d (2003). Here, however, 836 there was no contempora objection request neous for curative instruction in regard any alleged error, and thus review is limited to plain ascertaining whether error affected defendant’s rights. People Callon, substantial v 256 Mich App 329; NW2d prosecutorial test of misconduct whether the

defendant was denied a fair impartial People trial. v Dobek, 58, 63; 274 Mich App (2007); 732 NW2d 546 Erb, 48 Mich App 631; 211 NW2d 51 (1973). The defendant bears the burden of demonstrat- ing such an error resulted a miscarriage of (On justice. Remand), People Brownridge NW2d Defendant first claims that the prosecutor committed miscоnduct introducing evidence that defendant’s urine positive tested However, Trenbolone. defen- dant fails argument to make clear in the section of his brief on appeal that it was a different prosecutor previous agreed trial who had not to introduce this Although evidence. the lower-court record indicates People v Brown prosecutor agreement, knew that that the current the cur- record does not indicate that lower-court the previous prosecutor’s accepted prosecutor the rent provided agreement defendant. Defendant has not with require prosecutor legal the current basis that would agreement separate trial reached in a to to an adhere previous prosecutor Fur- and defendant. the between support on defendant ther, all the cases which relies previous he his detriment on the his claim that prosecutor’s agreement relied to prosecution the of one involve independent subsequent prosecution. and case, not a rejected regard. Thus, defendant’s claim is prosecutor improp- argues next that the Defendant Specifically, еrly expert witness Evans. vouched prosecutor implied that claims that the reputable. had called Defense counsel Evans was credibility closing argu- question during into Evans’s positive by suggesting ments that Evans concocted “fancy in his after first test was steroid test lab” the may fairly negative. prosecutor respond issue A to an Fields, the defendant. 450 Mich raised 110-111; Here, 538 NW2d 356 the lower-court merely responded prosecutor indicates that the record by arguing counsel’s claim that Evans was defense reputable. qualified Further, Evans as because was supports expert witness, the the lower-court record argument reputable. prosecutor’s Ac- that Evans was cordingly, merit. defendant’s claim without argues prosecutor also the twice

Defendant guilty improperly jury told the that defendant could be possession he had of ability of anabolic steroids because comments it. must be

to access Prosecutorial light defense read as a whole and evaluated they relationship arguments to the evi- bear App People Brown, 267 Mich admitted trial. dence [May- Opinion Court prosecu- 703 NW2d 230 Viewing whole, tor’s statements in context as a it is clear proseсutor argued that the properly pre- that evidence sented at trial jury allowed draw an inference of possession. Defendant’s claim this re- gard is without merit.

VI. DIRECTED VERDICT argues Defendant that the trial court in deny- erred ing motion his for a directed charge verdict on the of possession with intent to deliver controlled substances. He specifically claims that there was insufficient evi- possession dence of to submit the the charge jury. to reviewing “When trial court’s on a decision motion verdict, for a directed this Court the reviews record de novo to determine whether the evidence presented by the prosecutor, viewed the most light favorable to the prosecutor, could persuade a rational trier of fact that the essential elements of the crime charged proved were beyond a Aldrich, reasonable doubt.” v People (2001). 101, 122; 631 NW2d 67

The element of knowing possession with intent to deliver has two ‍​​‌​‌​‌‌​​​​‌‌​​​‌‌‌‌‌‌‌​​​‌‌‌‌‌‌‌​‌​‌​​‌​‌​‌​​​‍components: possession and intent. People Wolfe, 519; Mich 508, 489 NW2d 748 (1992). Actual physical possession is required not possession meet the element. Id. at Instead, 519-520. possession may be or either actual People constructive. v Nunez, 242 Mich Apр 615; 619 NW2d 550 possession Constructive illegal of an signifies substance of knowledge its presence, knowledge of character, its right the to control it. Id. Because it is difficult to prove an actor’s mind, state of only minimal circum- required. stantial evidence People McRunels, Mich App 603 NW2d 95 Circumstan- tial evidence and the reasonable that inferences arise v Brown Opinion the of Court of satisfactory proof constitute can from the evidence evi- Nunez, Circumstantial at 615-616. supra possession. control had the exclusive a defendant dence that narcotics contraband on which property over dominion defendant to establish is sufficient are found Wolfe, supra narcotics. constructively possessed 521. denied defendant’s

Here, properly the trial court charge posses- of verdict on for a directed request Suffi- controlled substances. to deliver with intent sion trier a rational permit presented evidence was cient the Tren- knew of that defendant fact to conclude right character, and had the its bolone, knew of Tren- contained office box post it. Defendant’s control sent to Finaplix-H Donnellon testified bolonе. Co., from Websa shipped box was office post credit-card had made from which company could con- that defendant testified purchases. Winters pack- There were 10 his office box. post access to trol used to any device but no evidence ages Finaplix-H, hand, the the other Finaplix-H. On animals with inject used to garbage in defendant’s found materials police Further, consumption. human Finaplix-H convert defendant that he to explained testified that Donnellon it was criminal, and the reason hand was “the matter at these steroids had recovered because we criminal was defendant testified that Donnellon post from his box.” Defendant “Oh, Fin[a]plix.” the stating, responded had ordered this that “he to Donnellon then indicated legal.” that it was Internet and over the material had the that defendant indicates The evidence and had box post to the office delivered Finaplix-H indicates also Evidence Finaplix-H. control Finaplix-H, animals with inject to no device there was Finaplix-H convert materials to had that defendant but Mich Opinion of Court human There is sufficient for a consumption. evidence jury rational to conclude that hаd defendant constructive of a possession controlled substance. The trial prop- court erly denied defendant’s motion a for directed verdict.

VII. REIMBURSEMENT OF PROSECUTION COSTS argues Defendant that the trial court erred in impos- ing prosecu- costs under MCL 771.3 to reimburse the expense expert tion’s of an at witness trial. Statutory interpretation question is a of consid- law de Davis, ered novo on appeal. People 79; 658 NW2d 800 sentencing,

At the trial court stated that defendant pay fee, must criminal rights proba- victim’s “$60.00 tion supervision fees at the per rate of month for $40.00 $480.00, state $120.00; total costs court costs of The stated, trial court further going $3000.00.” “I’m to you to require case, make restitution but the $5,000.00.” restitution I’m going set at hearing, At a later challenged improper as $5,000 restitution the prosecution’s cost of the expert indicated, “Well, witness. The trial court I’m going to it under deny the restitution statute.” The trial court stated, then under “[B]ut the probationary statute I Now, think it’s however, allowed. I still right have a the, look request at the if and see it’s reasonable.” The trial court then reduced the to only fees expert’s include court time. trial court ordered that “defen- dant must pay $4,200.00 the amount of aas condition of 771.3(5) Probation pursuant MCL as representing the costs incurred hiring expert witness for Defendant’s trial.” 771.3(2)(c) provides that,

MCL a condition “[a]s probation, may court require probationer to . . . v Brown Opinion the Court 771.3(5) (5).” MCL to subsection pursuant costs [p]ay to that, requires probationer the court “[i]f states (2), the costs shall be limited costs under subsection pay in prosecuting incurred expenses specifically to to the defendant legal assistance providing Here, there is no probationer.” supervision “expenses were expert that witness costs dispute real the defendant. . ..” prosecuting incurred specifically Thus, properly the costs were awarded. challenges the amount of costs

Defendant also imposed. 771.3(6), provides:

MCL (2) part imposes under subsection as If the court costs following apply: probation, all of the a sentence (a) pay require probationer not costs The court shall (2) probationer unless the is or will be under subsection during probation. In deter- pay able to them the term of mining payment method of of costs under the amount and (2), proba- the court shall take into account the subsection the burden financial resources and the nature of tionеr’s impose, regard due to his or payment of costs will with obligations. her other that the trial court argues, regard,

Defendant MCL because it failed to comply did not with 771.3 the costs. pay determine if defendant could afford addressed de- However, previously the trial court had that MCL 771.3 argued concern. Defendant fendant’s must take into account states Court “specifically and fees the financial assessing person’s the fines when The trial court during. time and . ..” status at stated, me. And I also can take “Excuse intexjected your employment.” potential into consideration that defen- concluded Here, specifically the trial court go full-time but to to school decision not to work dant’s inability The trial court pay. resulted his full-time properly considered defendant’s ability pay to under the statute, and concluded defendant could pay if he chose Therefore, to do so. the trial court did not err in imposing costs under MCL 771.3 to reimburse the prosecution’s expense for an expert witness at trial.

VIII. ISSUES RAISED IN DEFENDANT’S STANDARD 4 BRIEF ON APPEAL A. EFFECTIVE ASSISTANCE OF COUNSEL Because defendant did not raise this issue in a motion for a new trial or request for an evidentiary hearing pursuant Ginther, v People 436, 390 Mich 443; 212 (1973), NW2d 922 our review is limited to mistakes apparent from the record. People Mack, v 265 (2005). Mich App 125; 695 NW2d 342 The denial of effective assistance of counsel is a mixed question of fact and law, constitutional which are reviewed, respectively, for clear error and de novo. LeBlanc, v People 465 575, 579; Mich 640 NW2d 246 (2002).

To establish a claim of counsel, ineffective assistance of a defendant must performance show that counsel’s fell objective below an that, standard of reasonableness and but for errors, defense counsel’s there was a reasonable probability that the result of proceeding the would have been People Stanaway, different. 643, 687-688; v 446 Mich 521 NW2d 557 A affirmatively defendant must performance demonstrate that counsel’s objectively was prejudicial unreasonable and so deprive as to him of a fair People Pickens, trial. 298, 303; v 446 Mich 521 NW2d 797 (1994). The defendant must also overcome presump- tion challenged that the might action be considered sound strategy. People trial Tommolino, v App (1991), 466 citing NW2d 315 Washington, Strickland v 668; 2052; US 104 S Ct L80 Ed 2d [People Knapp, (2001).] 385-386; Mich 624 NW2d 227 Brown defense argues 4 Brief in his Standard Defendant (1) reasons: following 10 for the was ineffective counsel “statutory regаrding stipulated counsel defense (2) counsel 338.3122(2); defense Rule interpretation” of the motion denial challenge the trial court’s failed to (3) records; defense computer suppress Graves’s in the evidence exculpatory to introduce counsel failed (4) defense investigator’s report; private of a form consent the issue of Graves’s challenge failed to counsel (5) challenge the search; failed to defense counsel (6) 6.431; MCR of MCR 6.419 and disregard trial court’s challenges to to file postjudgment failed defense counsel (7) fees; restitution, fines, and regarding rulings trial court’s challenge the counsel failed to defense investiga- presentence provide failure to (8) (PSIR) de- sentencing; day one before report tion sentencing to correct at the time of fense counsel failed PSIR defendant provide court’s failure to the trial (9) counsel failed to sentencing; defense day one before Finaplix-H concluded instruction that object jury to (10) substance; defense counsel controlled was a egregious object any prosecution’s failed conduct. merit for first claim of error is without

Defendant’s I Defendant’s part opinion. reasons stated of this for the reasons of error is without merit second claim third III of this Defendant’s part opinion. stated in is without merit because claim of error claim and does address the merits of this wholly fails to in the investigator’s report private not mention the A defendant brief on appeal. section of his argument perfor- counsel’s demonstrate that affirmatively must prejudicial and so objectively unreasonable mance was Pickens, supra a fair trial. the defendant of deprive as to fourth do so. Defendant’s Defendant here fails to at 303. Graves’s testi- merit because claim of error without Opinion op the Court mony preliminary expressly at the examination indi- computer cates that she consented to the search of the police. Nothing in the lower-court record indi- cates otherwise. It is well established that defense failing pursue counsel is not ineffective for a futile supra Mack, motion. at 130. Defendant’s fifth claim of part error is without merit for the reasons stated in X of opinion. Defendant’s sixth claim of error is without part merit opinion. for the reasons stated in VII of this eighth Defendant’s seventh and claims of error are without merit because defendant fails to address the claims, merits of the and further fails to articulate prejudice arising having day from him not a PSIR one sentencing. before Defendant’s ninth claim of error is part without merit for the reasons stated II of this opinion. Finally, defendant’s tenth claim of error is part without merit for the reasons V, stated of this opinion. short,

In defendant has failed to establish ineffective any regard. assistance of counsel in B. VIOLATION OF GARRITY rights Garrity Defendant next claims that his under Jersey, v New 493; US 616; S Ct 17 L Ed 2d 562 (1967), were violated. Garrity, supra

In Supreme the United States self-incriminatory Court held that statements from ‍​​‌​‌​‌‌​​​​‌‌​​​‌‌‌‌‌‌‌​​​‌‌‌‌‌‌‌​‌​‌​​‌​‌​‌​​​‍a procured law-enforcement officer under the threat of discharge subsequent could not be used criminal proceedingsagainst Essentially, Garrity the declarant. hearing questions allows “the interviewee to answer knowledge any with the that statements elicitedtherein against proceedings.” will not be used him in criminal Lenawee Co v Police Council, Labor Sheriff Officers App 111, Mich 2; 115 n 607 NW2d 742 v Brown procured dur- Here, defendant claims that evidence ing Garrity for the was used as the basis interview leading to seize defen- affidavit search warrant interview, defendant medical records. At the dаnt’s signed indicating “any that information discov- a form not be used ered as a result of the interview would any During against [defendant] criminal case.” physi- purportedly interview, identified his prescribed cian, Hartz, that Dr. Hartz Dr. and indicated Androgel. him The search warrant avers: Donnellon, affiant,

Your in contact with Lt. has learned family Craig Brown is Dr. Hartz that the doctor of Gordon Craig Group in Oxford. That at the Lakeside Medical 2-21-03 and Brown claims to have seen Dr. Hartz on Androgel which he prescription obtained a for the steroid Hypogondism. uses for a disorder of argues during Garrity Specifically,defendant that his employment, interview, under threat of termination of required divulge physician, Hartz, his Dr. he was prescribed him Defendant claims a testosterone steroid. that because this information was used as the basis for leading warrant to seize the affidavit to the search rights Garrity records, his were defendant’s medical violated. any

Defendant has failed to show that evidence against procured during Garrity his interview was used brief, admits, that his him. Defendant his Standard specifically Garrity not used “actual statements were against per-se, [him], at trial.” Defendant notes used Androgen prosecutor trial, but mentioned objection defendant does not claim there was no mentioning regard prosecutor’s error with to the Androgen. although argument primary his

Defendant’s is that against per-se, Garrity him, “statements were not used 279Mich Opinion of the Court at trial... the statements were used as the basis for the affidavit leading to the search warrant to seize [defen- dant’s] medical records for the purpose introducing evidence derived thereof against [defendant] at a ‘criminal ” proceeding.’ However, defendant identify any fails to presented evidence at trial that resulted from the search warrant to seize defendant’s medical records. In other words, defendant fails to identify record gleaned evidence from his medical file that was used as against evidence Thus, him. while argument that the use of his Garrity statements to secure a search warrant may have merit, defendant does not any show that Garrity his or, statements more claim, relevant to his that the fruit of Garrity statements, his were against used him in this prosecution.

C.POSTTRIALMOTIONS Whether to grant a new trial inis the trial court’s discretion, and its decision will not be reversed absent an abuse of that discretion. Cress, People 468 Mich 678, 691; 664 NW2d 174 An abuse of discretiоn occurs when the result is outside the range of principled outcomes. Barnett v Hidalgo, NW2d 472 6.419(E)

MCR states, “The court must state orally on the record or in a written ruling part made a of the record its reasons for granting or denying a motion for a directed verdict of acquittal and for conditionally granting or denying motion for a Likewise, new trial.” 6.431(B) MCR provides: motion,

On the defendant’s may the court order a new any ground trial on support appellate that would reversal of the conviction or because it believes that the verdict has miscarriage justice. resulted in a The court must state its v Brown orally denying trial on granting a new for reasons part record. ruling made record or in a written 4 brief that argues his Standard Defendant record its reasons stating on the erred not trial court mistrial. motion for denying defendant’s defendant, acting 17,2004, hearing, motion At May pre- argument the same se, essentially presented pro addressing the appeal brief on in defendant’s sented 338.3122(2), addressed which we constitutionality of Rule motion trial denied the II of this court part opinion. in comment; however, the record of the without further had previ- that the trial court hearing motion indicates argu- of defendant’s rejected all ously considered Further, the trial court’s related to this issue. ments can be inferred denying defendant’s motion reasons Trenbolone, instructions regard in which jury from its in at issue this in that the substance part state relevant Trenbolone, “un- is a controlled substance case is which through intended for administration expressly less it is Accord- species.” or other non-human implant to cattle in the record court stated its reasons on ingly, the trial Trenbolone, and reversal is not legality of regard to the required.

D. REMAINING ISSUES in his Standard brief Defendant next reiterates This his was unconstitutional. apartment the search of has, however, part addressed previously been issue I\£ is not entitled and we conclude defendant opinion relief. denied a fair argues that he was

Lastly, defendant review of cumulative errors. We through the effect trial alleged if the combination to determine this issue supra trial. Knapp, defendant a fair errors denied 387-388. App 279 Mich Opinion by White, J.

The cumulative effect of several errors can constitute prejudice sufficient any to warrant reversal even when one reversal, errors alone would not merit but cumulative effect of thе errors must undermine the confi reliability dence in the of the verdict before a new trial is granted. People LeBlanc, v 465 Mich 591: 640 NW2d errors, Absent the establishment of there can be no meriting cumulative effect of errors reversal. Mayhew, App 600 NW2d 370 [People 106; Dobek 274 Mich 732 NW2d 546 (2007).] Here, defendant has failed to any error, and, thus, show his claim of cumulative error rejected. must be

Affirmed.

O’Connell, J., concurred. (concurring part and WHITE, J. dissenting part). I respectfully dissent from the majority’s conclusion 338.3122(2) that Mich Code, Admin R plainly and unambiguously provides that possession of Trenbolone in a form that is “expressly intended for administration through implants to cattle or other species nonhuman and which has been approved by the United drug States enforcement administration for such administration” is illegal if the possessor intends the Trenbolone for human consumption.

Defendant was convicted possession of and delivery of Trenbolone a form that was expressly intended for through administration implants to nonhuman ani- mals. question The is whether the Trenbolone defen- dant possessed is a Admin controlled substance. Mich 338.3122(1) Code, R states: specifically Unless excepted or unless listed in another schedule, any material, compound, mixture, preparation any quantity contains steroid, of an including anabolic People v Brown Opinion by J. White, salts, isomers, of if the of its and salts isomers existence possible specific of within the such salts isomers chemical rule, designation, is included in schedule 3. As in this used any following the term “anabolic steroid” means of the chemically drugs or hormonal substances which are and testosterone, pharmacologically related to other than es- corticosteroids, trogens, progestins, pro- and and which growth!.] mote muscle 338.3122(1)(w) Code,

Mich Admin R identi expressly Thus, fies specifically excepted, “Trenbolone.” unless containing mixture Trenbolone is included schedule 3. 338.3122(2)

Rule states: expressly An anabolic steroid which is intended for through implants administration other cattle or nonhu- species by approved man and which has been the United drug States enforcement administration for such adminis- specifically excepted tration is from schedule 3.

Trenbolone is an anabolic steroid that has ap- been proved by the United States and Secretary Health for through implants Human Services administration to cattle or other nonhuman 21 CFR 1308. species. Defendant Trenbolone in possessed implant form. conjunction, Michigan

Read subsection Board Pharmacy Rule 338.3122 lists Trenbolone as a sched- substance, making any ule 3 mixture containing Tren- substance, but bolone schedule 3 subsection any rule then from schedule 3 steroid excepts anabolic “expressly ‍​​‌​‌​‌‌​​​​‌‌​​​‌‌‌‌‌‌‌​​​‌‌‌‌‌‌‌​‌​‌​​‌​‌​‌​​​‍which is intended for administration to cattle or other through implants species nonhuman the United approved drug which has been States enforcement administration such administra- ____” tion concludes that the rule majority clearly on the intent with

unambiguously possessor’s focuses 279 Mich Opinion by White, J. substance, to the rather than respect the intent of the majority manufacturer or the seller. The concludes that although expressly Trebolone at issue is intended cattle, for administration through implants would therefore not be a controlled substance hands of someone intended who to administer it to an animal, it is nevertheless a controlled substance in the hands of someone who does not intend to it use for this purpose.

I do not agree that no guesswork required 338.3122, applying Rule plainly that it and unam- biguously identifies Trenbolone as a controlled sub- only stance and exempts possession its if the possessor expressly intends the drug be administered through implants to cattle or other nonhuman species. Rule 338.3122 does not unambiguously so provide. Rather, it identifies Trenbolone as a schedule 3 con- trolled substance and then if states that it is expressly intended for through administration implants to ani- mals, it, Trebolone, use, rather than its is excepted from schedule 3. The focus is on the substance and whether it is a controlled 3 substance. clause “and which has been approved by the United States drug enforcement administration for such administration” supports this interpretation. The United Drug States Enforcement Administration does approve not the pos- session and drug by individuals, use of a rather it approves the manufacture and use of a drug specific purposes in specific phrase forms. The “which is ex- pressly intended for administration through implants to cattle or other species nonhuman and which has been approved by the United drug States enforcement ad- ministration for such strongly administration” implies the word “intended” is directed at the use for which the drug is made and expressly approved, and not the use intended A possessor. person ordinary v Brown Opinion White, J. that Trenbolone would not be on notice intelligence administration in form intended for expressly that is 3 substance. to cattle is a schedule through implants

Case Details

Case Name: People v. Brown

Court Name: Michigan Court of Appeals

Date Published: May 22, 2008

Citation: 755 N.W.2d 664

Docket Number: Docket 271164

Court Abbreviation: Mich. Ct. App.