People v. Fetterley, Docket No. 189936

• Decision Date: 08 May 1998
• Docket Number: Docket No. 189936
• Citation: 229 Mich.App. 511,583 N.W.2d 199
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stephen Rex FETTERLEY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 199

583 N.W.2d 199

229 Mich.App. 511

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stephen Rex FETTERLEY, Defendant-Appellant.

Docket No. 189936.

Court of Appeals of Michigan.

Submitted Oct. 7, 1998, at Grand Rapids.

Decided May 8, 1998, at 9:05 a.m.

Released for Publication Aug. 19, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Dale A. Crowley, Prosecuting Attorney, and Michael E. Moody, Assistant Attorney General, for the people.

State Appellate Defender (by Corrine B. Yates) and Stephen R. Fetterley, in pro. per.

Before WHITE, P.J., and MARK J. CAVANAGH and REILLY, JJ.

WHITE, Presiding Judge.

Defendant was convicted by a jury of one count of possession with intent to deliver methamphetamine, M.C.L. § 333.7401(2)(b); M.S.A. § 14.15(7401)(2)(b), one count of possession with intent to deliver marijuana, M.C.L. § 333.7401(2)(c); M.S.A. § 14.15(7401)(2)(c), and one count of possession of methamphetamine, M.C.L. § 333.7403(2)(b); M.S.A. § 14.15(7403)(2)(b). A separate jury found that defendant was a third-offense habitual offender, M.C.L. § 769.11; M.S.A. § 28.1083. He was sentenced to enhanced prison terms of twelve to twenty-eight years for possession with intent to deliver methamphetamine, five to sixteen years for possession with intent to deliver marijuana, and two to eight years for possession of methamphetamine. Defendant appeals as of right. We affirm his convictions but vacate his sentences and remand for resentencing.

I

Defendant first argues that the prosecutor presented insufficient evidence to support the convictions of possession with intent to deliver marijuana and possession of methamphetamine. We disagree.

In reviewing the sufficiency of the evidence, this Court must view the evidence in the light most favorable to the prosecutor and determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v. Wolfe, 440 Mich. 508, 515, 489 N.W.2d 748 (1992), amended 441 Mich. 1201 (1992). Here, defendant challenges the sufficiency of the evidence to establish his knowing possession of the controlled substances.

A person need not have physical possession of a controlled substance to be found guilty of possessing it. Wolfe, supra at 519-520, 489 N.W.2d 748. Possession may be either actual or constructive, and may be joint as well as exclusive. Id. The essential question is whether the defendant had dominion or control over the controlled substance. People v. Konrad, 449 Mich. 263, 271, 536 N.W.2d 517 (1995). A person's presence at the place where the drugs are found is not sufficient, by itself, to prove constructive possession; some additional link between the defendant and the contraband must be shown. Wolfe, supra at 520, 489 N.W.2d 748; People v. Vaughn, 200 Mich.App. 32, 36, 504 N.W.2d 2 (1993). However, circumstantial evidence and reasonable inferences arising from the evidence are sufficient to establish possession. People v. Sammons, 191 Mich.App. 351, 371, 478 N.W.2d 901 (1991), cert. den. 505 U.S. 1213, 112 S.Ct. 3015, 120 L.Ed.2d 888 (1992).

Here, the prosecutor presented sufficient circumstantial evidence linking defendant to the marijuana and methamphetamine found in a trailer. There was evidence that defendant resided in the trailer and used the master bedroom. Defendant was present at the trailer when the police executed the search warrant at 3:15 a.m. Defendant told police that he and his girlfriend used the back bedroom, ¹ but claimed that his girlfriend was not involved in trafficking drugs. A letter was found in the trailer addressed to defendant at that address. There were two bathrooms in the trailer, but the methamphetamine and marijuana were found in the bathroom connected to the master bedroom. The methamphetamine was found in the toilet, and the marijuana was found in a cabinet underneath the sink.

There were items in the master bedroom from which the jury could reasonably infer that the bedroom's occupant was the owner of the controlled substances. Eighty-five hundred dollars in cash was found underneath the bed, an electronic scale of the type commonly used to weigh controlled substances for resale was found on the dresser, and a notebook containing names followed by dollar amounts was found in the top dresser drawer. Additionally, Michael Waters testified that he sold marijuana and methamphetamine and that defendant was his source. Waters testified that the purchases usually took place in the back bedroom of the trailer, where defendant lived with his girlfriend and children, and that he purchased methamphetamine from defendant the day before defendant's trailer was raided by the police.

A checkbook at the trailer led the police to a self-storage facility. The owner of the facility, Kirk Pasche, produced a rental agreement showing that a storage unit was rented by defendant. Inside the storage unit, police discovered a file cabinet that contained five pounds of methamphetamine, as well as several glass vials commonly used to package the substance, and several small empty bags made of clear plastic. The cardboard box containing the methamphetamine had defendant's fingerprint on it. According to Officers Matyas and Edwards, defendant admitted that the methamphetamine at the storage unit was under his control, although he claimed that it belonged to Sonny McWilliams. The officers testified that defendant admitted that he and McWilliams were in a drug-trafficking organization in which McWilliams purchased large quantities of methamphetamine, which defendant was responsible for distributing.

Defendant claims that there was insufficient evidence to establish that he possessed the controlled substances found in the trailer because they could have belonged to any of the three other adults present at the time of the search. However, the prosecution need not negate every reasonable theory of innocence, but must only prove its own theory beyond a reasonable doubt in the face of whatever contradictory evidence is presented. People v. Carson, 189 Mich.App. 268, 269, 471 N.W.2d 655 (1991). Viewed in a light most favorable to the prosecution, the evidence discussed above was sufficient to support a finding beyond a reasonable doubt that defendant constructively possessed the drugs found in the trailer bathroom.

There was also sufficient evidence from which the jurors could conclude that defendant intended to deliver the marijuana. Actual delivery is not required to prove intent to deliver. Wolfe, supra at 524, 489 N.W.2d 748. An actor's intent may be inferred from all of the facts and circumstances, People v. Safiedine, 163 Mich.App. 25, 29, 414 N.W.2d 143 (1987), and because of the difficulty of proving an actor's state of mind, minimal circumstantial evidence is sufficient. People v. Bowers, 136 Mich.App. 284, 297, 356 N.W.2d 618 (1984). Intent to deliver can be inferred from the quantity of the controlled substance in the defendant's possession and from the way in which the controlled substance is packaged. Wolfe, supra at 524, 489 N.W.2d 748. Here, eight small clear plastic bags of marijuana were found together in a larger bag. An electronic scale, a large sum of cash, and tabulations with names and dollar amounts were also found in the master bedroom area. In addition, Waters testified that he had purchased marijuana from defendant several times in the past. Viewing the evidence in a light most favorable to the prosecution, there was sufficient evidence from which the jurors could conclude that the marijuana was not solely for defendant's personal use and that he intended to deliver it to others.

II

Defendant next argues that the trial court erred in refusing the jurors' request for a transcript of the testimony of the storage facility operator. We find no error requiring reversal.

During their deliberations, the jurors sent a note to the trial court asking, among other things, for a transcript of Pasche's testimony. The matter was resolved as follows:

The Court: Mr. Fetterley's now here with Mr. Barnett [defense counsel]. I received a note from the jury....

* * * * * *

The Court: "Transcript of testimony by Pasche," which we obviously don't have. I'm just gonna tell the jury that they'll have to remember the testimony of Mr. Pasche as best they can. Any objection to that?

Mr. McNeill [prosecutor]: No, your Honor.

The Court: Mr. Barnett?

Mr. Barnett: No, your Honor.

* * * * * *

The Court: Morning, ladies and gentleman. Please be seated.

We have all 12 of our jurors here this morning. We've received a note from you, and I wanna go through those items with you.

* * * * * *

The first item was the rental agreement contract. We're getting that around for you. The second item was Miss Moore's checkbook. And we're going to give that to you. Third item you've asked for is a transcript of the testimony of Mr. Pasche. We do not have that available and we can't--cannot make it available to you. We just don't have the technology in this courtroom to produce transcripts on a daily basis. So, you're going to have to remember the testimony of Mr. Pasche as best you can. That's the best I can do for you at this point.

Defendant argues that the trial court committed error warranting reversal by violating MCR 6.414(H), which states:

If, after beginning deliberation, the jury requests a review of certain testimony or evidence, the court must exercise its discretion to ensure fairness and to refuse unreasonable requests, but it may not refuse a reasonable request. The court may order the jury to deliberate further without the requested review, so long as the possibility of having the testimony or evidence reviewed at a later time is not foreclosed.

Defendant asserts that the jury's request was reasonable and could not properly be refused by the trial court despite defense counsel's failure to object. However, defense counsel expressly acquiesced...