People v. Ford
| Decision Date | 19 January 2023 |
| Docket Number | 359829 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ALLEN ZAURIL FORD, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Berrien Circuit Court LC No. 2020-001888-FH
Before: GLEICHER, C.J., and MARKEY and RICK, JJ.
A jury convicted Allen Zauril Ford of possession with intent to deliver less than 50 grams of fentanyl, second offense, MCL 333.7401(2)(a)(iv); maintenance of a drug house second offense, MCL 333.7405(1)(d); felon in possession of a firearm (felon-in-possession), MCL 740.224(f); and three counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Although the trial was not perfect, Ford has presented no errors that prejudiced the outcome. We affirm.
In June 2020, the Michigan State Police Southwest Enforcement Team executed a search warrant at a Benton Harbor residence. Ford slept in the northwest bedroom of that home with his girlfriend, Ashley Walton. In that room, the searching officers found evidence of narcotics activity and a handgun. The officers found no evidence of criminal activity anywhere else in the house.
In the northwest bedroom, the officers also found a digital scale coated with white residue on top of a dresser. That residue later tested positive for methamphetamine, cocaine, and fentanyl. Detective Jeremiah Gauthier testified that drug users do not commonly use a scale and do not commonly mix meth, cocaine, and fentanyl together, but drug dealers do. Next to the scale was a credit card, rolled up coins, and two $20 bills. Detective Gauthier testified that a credit card is commonly used by dealers to measure an exact amount or by users to make lines. Detective Gauthier also testified that users commonly use paper bills to snort controlled substances, but that these $20 bills did not bear traces of controlled substances.
On top of a cabinet, the officers found an unopened black shoebox. Inside was a pair of shoes in Walton's size. A handgun rested on top of the shoes. Inside the cabinet, the officers found white powder stored in a piece of paper topped by tissue paper. Most of the powder was loose and had spilled onto the shelves. The powder later tested as fentanyl and weighed 0.058 grams.
Inside the bedroom closet, the officers found a safe and a pile of shoeboxes. The safe contained $4,020 and two baggies containing 0.633 grams of fentanyl. Detective Gauthier testified that the average dose a user purchases is a tenth or two tenths of a gram and that a user usually does not purchase more than two doses at a time. A clear plastic bag with a corner missing rested on top of the shoeboxes. Detective Gauthier surmised that this was leftover packaging material. The officers found no other paraphernalia associated with drug use and no other packaging materials in the bedroom.
As other officers searched the remainder of the residence, Detective Gauthier interviewed Ford and Walton. Ford waived his Miranda[1] rights and voluntarily spoke with the detective. Ford indicated that the controlled substances and related items inside the bedroom belonged to him. According to Detective Gauthier, Ford also stated that there was a stolen handgun in a shoebox inside the bedroom. At trial, Ford denied knowing that there was a handgun in his bedroom, let alone a stolen handgun in a shoebox. Detective Gauthier found $147 in Ford's front pants pocket. Detective Gauthier inquired, "I'm assuming that the money in your pocket is from selling dope." Ford responded with a "nonverbal head [nod]" and then stated that "the money in his safe was not from selling drugs, [because] it was from unemployment." When Detective Gauthier asked a second time whether "the money in [his] pocket is from selling dope," Ford again nodded and confirmed that "yes, that's dope money."
Detective Gauthier also interviewed Walton. He described that Walton admitted to witnessing Ford selling controlled substances from the residence. However, Walton denied making that statement at trial.
At trial, Detective Gauthier testified as an expert in the sale and distribution of controlled substances. He described that a dealer commonly keeps sale proceeds close to the product. He explained that the amount of fentanyl found during this search is an amount typically purchased for the purpose of sale and distribution. He then explained that dealers often keep a firearm in close proximity to their product and proceeds for protection. Placing the gun in a shoebox kept it adequately hidden while easily accessible. Detective Gauthier further testified that a gram of heroin sells for between $140 and $150, and a gram of either cocaine or meth sells for between $100 and $120. He therefore deduced that the $147 in Ford's pocket was from selling one gram to a customer.
Ford testified at trial and explained that he was a drug user, not a dealer. He claimed that earlier in the day, a dealer had brought a sample to the house and Ford did a line on the dresser next to the digital scale. That dealer was scheduled to return with a gram to sell and Ford kept the purchase money in his pocket. Ford admitted that he normally purchased a gram or two at a time and used his digital scale to confirm the weight. Even though he was still intoxicated when he spoke to Detective Gauthier, Ford testified that he did not physically nod his head in affirmation when asked whether the $147 was from selling controlled substances.
Ford then explained that he wanted to return the two baggies of fentanyl found in the safe to his dealer. He only used cocaine and marijuana, not meth or fentanyl. The COVID-19 pandemic created a scarcity of controlled substances that led dealers to sneak in other substances. He bought what he believed was cocaine, but he received cocaine cut with fentanyl. He stored the two baggies in his safe to return for a refund. Detective Gauthier testified that if a user wanted to return a purchase, the normal procedure is to call the dealer and complain right away.
Walton also testified for the defense. She claimed ownership of the handgun in the shoebox. She explained that she kept the handgun in her shoebox on top of the cabinet to keep it out of the reach of children in the home. Although Walton shared the bedroom with Ford, Ford kept most of his belongings in a different room. However, Walton admitted that the controlled substances and related items belonged to Ford.
At the close of trial, the jury convicted Ford of various charges against him, but acquitted him of possession of meth and cocaine. Ford now appeals.
Ford contends that the prosecution presented insufficient evidence to support his convictions for maintaining a drug house, felon-in-possession, and felony-firearm. We review de novo a challenge to the sufficiency of the evidence, reviewing the evidence and all reasonable inferences in the light most favorable to the prosecution to determine if a rational trier of fact could find the elements of the charged offense proven beyond a reasonable doubt. People v Miller, 326 Mich.App. 719, 735; 929 N.W.2d 821 (2019). Circumstantial evidence and reasonable inferences derived from the evidence may constitute sufficient proof of the elements of the crime. People v Carines, 460 Mich. 750, 757; 597 N.W.2d 130 (1999). But in conducting our review, we "will not interfere with the trier of fact's role of determining the weight of the evidence or the credibility of witnesses." People v Kanaan, 278 Mich.App. 594, 619; 751 N.W.2d 57 (2008).
MCL 333.7405(1)(d) makes it illegal to:
[k]nowingly keep or maintain a . . . dwelling . . . or other structure or place that is frequented by persons using controlled substances in violation of this article for the purpose of using controlled substances or that is used for keeping or selling controlled substances in violation of this article.
"The phrase 'keep or maintain' implies usage with some degree of continuity that can be deduced by actual observation of repeated acts or circumstantial evidence, such as perhaps a secret compartment or the like, that conduces to the same conclusion." People v Thompson, 477 Mich. 146, 155; 730 N.W.2d 708 (2007). Ford contends that there was no evidence of continuity of either the selling or use of controlled substances. He emphasizes that the prosecution presented no evidence that anyone had come to the home to purchase drugs, not even through a "controlled buy." However, the evidence presented does support a continuity of "keeping . . . controlled substances."
Ford testified that he had lived in the home with Walton for eight months before the search. He admitted ownership of the controlled substances in his safe and in and on the cabinet, as well as of the scale and the discarded packaging. The state of the cabinet suggested regular storage of a significant quantity of narcotics as fentanyl had been spilled onto the shelves. As Ford denied using fentanyl, the only reasonable explanation for the fentanyl in the cabinet was to cut into other substances that would be offered for sale. Ownership of the digital scale is also more reasonably explained as a tool for measuring drugs for sale, not purchase. From this evidence, the jury could infer that Ford kept or maintained a house "used for keeping . . . controlled substances."
Ford further contends that he cannot be convicted of maintaining a drug house because the primary purpose of the residence was habitation, not keeping or using controlled substances. In Thompson, 477 Mich. at 156-157, the Supreme Court adopted a test described by the Alaska Court of Appeals:" 'The state need not prove that the property was used for the exclusive purpose of keeping or distributing...
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