People v. Hahn

• Decision Date: 01 June 1990
• Docket Number: Docket No. 108888
• Citation: 183 Mich.App. 465,455 N.W.2d 310
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harvey Carl HAHN, Defendant-Appellant. 183 Mich.App. 465, 455 N.W.2d 310
• Court: Court of Appeal of Michigan — District of US

Page 310

455 N.W.2d 310

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harvey Carl HAHN, Defendant-Appellant.

Docket No. 108888.

183 Mich.App. 465, 455 N.W.2d 310

Court of Appeals of Michigan.

Submitted Oct. 9, 1989.

Decided Dec. 26, 1989.

Released for Publication June 1, 1990.

[183 MICHAPP 466] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Daniel J. Garber, Jr., Asst. Pros. Atty., for the People.

James C. Thomas, Detroit, for defendant-appellant.

[183 MICHAPP 467] Before HOLBROOK, P.J., and BRENNAN and REILLY, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of possession of 225 grams or more but less than 650 grams of

a controlled substance (cocaine),

M.C.L. Sec. 333.7403(2)(a)(ii); M.S.A. Sec. 14.15(7403)(2)(a)(ii). Thereafter, defendant was sentenced to a term of twenty to thirty years imprisonment. We affirm.

On September 24, 1987, Ferndale police obtained a search warrant for defendant's house and garage. The warrant was based, in part, on information gathered during a lengthy surveillance of defendant's house. After notifying defendant of the warrant, and obtaining his consent to enter, the police found cocaine in several places throughout the premises: one gram on defendant's person, 6.2 grams in a kitchen cupboard, 35.32 grams in a file cabinet in the garage bathroom, and 191.81 grams in a fireproof strongbox bolted inside the engine compartment of an automobile parked inside the garage. This automobile was later discovered to be registered to defendant. One of defendant's paycheck stubs was also found inside the strongbox. Inside the house, the police also found numerous items of paraphernalia related to the processing, packaging or smoking of cocaine, as well as over $4,000 in cash and $3,200 in travelers checks. At the time of the search, four other persons in addition to the defendant were found in the house, two of whom also resided there.

On appeal, defendant asserts that the evidence presented at his preliminary examination was insufficient to support the district court's decision to bind him over for trial. Specifically, defendant asserts that there was insufficient evidence to [183 MICHAPP 468] establish that he was in possession of the cocaine. We disagree.

"Possession may be established by evidence that defendant exercised control or had the right to exercise control of the substance and knew that it was present." People v. Richardson, 139 Mich.App. 622, 625, 362 N.W.2d 853 (1984). We note that defendant not only owned the house and car wherein the cocaine was discovered, but also that much of the paraphernalia and nearly all of the recovered money was found in defendant's bedroom. Further, defendant's paycheck stub was found inside the strongbox containing 191 grams of cocaine and defendant was in actual possession of one gram of cocaine, a fact particularly significant to establishing defendant's knowledge. Given that proof beyond a reasonable doubt is not required at the preliminary examination, we do not find that the district court's decision to bind defendant over for trial was an abuse of discretion. See People v. Gonzalez, 178 Mich.App. 526, 530, 444 N.W.2d 228 (1989).

We also reject defendant's contention that the district court erred at the preliminary examination by not permitting defendant's counsel to cross-examine a police officer as to the registration of the automobile found in defendant's garage. We note that the magistrate at a preliminary hearing has wide discretion concerning the admission of evidence. People v. Lawrence Johnson, 111 Mich.App. 383, 386, 314 N.W.2d 631 (1981), lv. den. 414 Mich. 949 (1982). Moreover, since it was subsequently determined that the automobile was registered to defendant, we would be hard pressed to find any resulting prejudice to defendant. See M.C.L. Sec. 769.26; M.S.A. Sec. 28.1096, MCR 2.613(A) (no reversal for errors not resulting in substantial injustice).

Defendant next asserts that the evidence of the [183 MICHAPP 469] cocaine found in the automobile should have been suppressed because the search warrant did not authorize the police to search cars found on defendant's premises. This same argument was raised by defendant in a prior motion to suppress evidence which was denied by the trial court. We must affirm that denial unless, after review of the record, we possess a definite and firm conviction that the trial court made a mistake. People v. Russell, 174 Mich.App. 357, 361, 435 N.W.2d 487 (1989). We are not convinced a mistake was made in this instance because the warrant specifically authorized the search of defendant's garage wherein the car was located. In United States v. Ross, 456 U.S. 798, 820-821, 102 S.Ct. 2157, 2170-2171, 72 L.Ed.2d 572 (1982), the Supreme Court stated:

A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search.

We conclude that the search warrant in this case was sufficient to authorize the search of defendant's automobile.

Defendant also maintains that the prosecutor improperly consolidated the separate quantities of cocaine, all discovered in different places, in order to charge defendant with the single count of possession of over 225 grams. We disagree. See People v. Cortez, 131 Mich.App. 316, 332, 346 N.W.2d 540 (1984). We also decline to accept defendant's analogy to those cases wherein other panels of this Court have disallowed the aggregation of separate instances of false pretenses under $100, in order to charge for false pretenses over $100. See People v. Harajli, 161 Mich.App. 399, 411 N.W.2d 765 (1987), [183 MICHAPP 470] lv. den. 429 Mich. 867 (1987); People v. Robinson, 97 Mich.App. 542, 296 N.W.2d 99 (1980). Unlike the statute involved in the false pretenses cases, M.C.L. Sec. 750.218; M.S.A. Sec. 28.415, which implies that a separate count arises for each misrepresentation, the statute in the instant case makes reference only to a defendant's possession of the specified amount. Since the record discloses sufficient evidence from which it can be determined that defendant possessed all the separate amounts, it logically follows that defendant also possessed the total amount.

Defendant next asserts that the trial court erred in not instructing the jury in accordance with CJI 4:2:02(6) which provides:

(6) circumstantial evidence alone may be used to prove an element of an offense but the prosecution has the burden of disproving any reasonable theory of innocence which is presented by the circumstances.

We disagree. We note initially that a comment accompanying this instruction makes its use "optional." Moreover, numerous recent decisions from this Court indicate that the prosecutor is no longer required to disprove reasonable theories of innocence. People v. Daniels, 163 Mich.App. 703, 707, 415 N.W.2d 282 (1987), lv. den. 430 Mich. 854 (1988); People v. Frank Johnson, 146 Mich.App. 429, 436, 381 N.W.2d 740 (1985), lv. den. 425 Mich. 855 (1986); People v. Doss, 122 Mich.App. 571, 574, 332 N.W.2d 541, lv. den. 417 Mich. 1100.16 (1983).

De...