People v. Potter

• Decision Date: 11 June 1982
• Docket Number: Docket No. 53752
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Allan POTTER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 313

320 N.W.2d 313

115 Mich.App. 125

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Allan POTTER, Defendant-Appellant.

Docket No. 53752.

Court of Appeals of Michigan.

Submitted Jan. 6, 1982.

Decided April 7, 1982.

Released for Publication June 11, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Thomas J. Rasdale, Asst. Pros. Atty., for the People.

Zimostrad, Wenzloff, Allsop & Zimostrad, P.C., Bay City, for defendant-appellant on appeal.

Before CAVANAGH, P. J., and BRONSON, and BEASLEY, JJ.

PER CURIAM.

Defendant was charged with possession of a controlled substance with intent to deliver in violation of M.C.L. Sec. 333.7401; M.S.A. Sec. 14.15(7401) and as an habitual offender, by supplemental information pursuant to M.C.L. Sec. 769.13; M.S.A. Sec. 28.1085. A jury convicted defendant of both charges, and he was sentenced to a term of 10 to 15 years in prison. Defendant appeals by right.

Defendant first argues on appeal that the trial court erred by denying defendant's motions for a directed verdict and for a new trial. Although defendant admits he possessed a controlled substance, marijuana, he denies he had the specific intent to deliver it to anyone and claims the prosecutor offered no evidence to show the existence of such an intent.

In reviewing a motion for a directed verdict of acquittal, this Court must consider the evidence presented by the prosecution up to the time the motion was made, view that evidence in a light most favorable to the prosecution, and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. If sufficient evidence has not been introduced, a directed verdict or judgment of acquittal should be entered. People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979); People v. Riemersma, 104 Mich.App. 773, 780, 306 N.W.2d 340 (1981).

Both possession and intent to deliver may be proven by circumstantial evidence. People v. Ferguson, 94 Mich.App. 137, 151, 288 N.W.2d 587 (1979). In addition, the intent to deliver may be inferred from the amount of controlled substance possessed by the accused. People v. Abrego, 72 Mich.App. 176, 181, 249 N.W.2d 345 (1976); People v. Serra, 55 Mich.App. 514, 520, 223 N.W.2d 28 (1974). In this case, the evidence disclosed that defendant possessed 80 marijuana cigarettes at the time of his arrest. An experienced undercover police officer testified that marijuana is often sold by individual cigarettes. Defendant was arrested in a public park which was known to be a place to buy and sell narcotics. Police officers testified that they had observed defendant give people in the park a well-known signal indicating a willingness to sell marijuana, and individuals had been observed going up to defendant's vehicle and handing defendant money in exchange for long, white objects. We conclude that the evidence was sufficient to infer that the defendant had the intent to deliver a controlled substance, and therefore the trial court did not err in denying defendant's motion for a directed verdict.

The standard governing the grant or denial of a motion for a new trial was established by the Michigan Supreme Court in People v. Hampton, supra, as follows:

"* * * [A] new trial may be granted if the trial judge finds that the guilty verdict was not in accordance with the evidence introduced and that an injustice has been done. * * * The decision whether to grant or deny a motion for a new trial is entrusted to the discretion of the trial court and that decision will not be disturbed on appeal without a showing of an abuse of discretion." (Citations omitted.) 407 Mich. 354, 373, 285 N.W.2d 284.

Applying this standard to the instant case, we conclude that the verdict rendered was in accordance with the evidence introduced and that the trial court did not abuse its discretion in denying defendant's motion for a new trial.

Second, defendant argues that the examining magistrate erred in binding defendant over for trial. Defendant claims that the quantity of marijuana found in his possession was insufficient evidence to establish an intent to deliver a controlled substance. In light of the fact that this Court has stated on several occasions that an intent to deliver may be inferred from the amount of controlled substance found in the accused's possession, we find no merit to defendant's argument. See People v. Ferguson, supra; People v. Abrego, supra; People v. Serra, supra. Our review of a magistrate's decision is limited to whether the magistrate abused his or her discretion in rendering the decision. People v. King, 412 Mich. 145, 155, 312 N.W.2d 629 (1981). We conclude that the evidence of the quantity of marijuana defendant possessed at the time of his arrest together with defendant's conduct observed by the police officers was sufficient to support the magistrate's determination that there was probable cause to believe that the crime charged had been committed and probable cause to believe that defendant had committed the crime.

Defendant's third argument is that the trial court erred by ruling that certain expert testimony proffered by a defense witness was inadmissible. Defendant called a chemical dependency therapist at a drug and alcohol rehabilitation center to testify that it was not unusual for a marijuana user to carry 40 to 80 marijuana cigarettes for personal use. The purpose of this testimony was to rebut the testimony of prosecution witnesses, which was offered to show that defendant's intent to deliver a controlled substance could be inferred from the quantity of marijuana found in his possession.

The determination of whether an expert witness is qualified to testify rests within the sound discretion of the trial court, and this Court will not reverse the trial court's determination of a witness's status unless there has been an abuse of that discretion. People v. Kearney, 72 Mich.App. 28, 33, 248 N.W.2d 687 (1976); People v. Boyd, 65 Mich.App. 11, 13, 236 N.W.2d 744 (1975). Defendant's witness was a recovered alcoholic, and his training and expertise were in the area of therapy and counseling of chemically dependent persons. He had seen marijuana on only ten occasions, had never purchased or used the substance himself, and his knowledge concerning the number of marijuana cigarettes a user might carry was based upon information he had obtained from his clients. We conclude that the trial court did not abuse its discretion in ruling that defendant's witness was not qualified as an expert witness to give the proferred opinion.

Defendant's fourth argument on appeal is that improper remarks by the prosecutor caused error requiring reversal. Defendant claims that the prosecutor improperly sought to play upon the sympathy and fears of the jury by introducing evidence concerning the reputation of the park in which defendant was arrested by referring to unidentified individuals in the park as teenage school children and by telling the jury that other types of drugs were sold in that park. The prosecutor also allegedly implied that defendant may have committed other offenses or sold other types of drugs. This Court has held that a prosecutor must refrain from making arguments which divert the jury from its duty to decide a case on the evidence. People v. Farrar, 36 Mich.App. 294, 193 N.W.2d 363 (1971). However, in this case the prosecutor was merely commenting on the evidence admitted at trial and, as such, the comments were permissible. People v. Terry, 86 Mich.App. 64, 68, 272 N.W.2d 198 (1978).

What defendant is really objecting to is the admissibility of certain evidence. Defendant objects to the admission of evidence regarding his presence in the park at times other than when he was arrested, about the drug problem at the park, about the length of time the police had the park under surveillance, about the fact that one police officer had testified in another proceeding involving the defendant, and the evidence regarding defendant's companion. Defendant cites no authority in support of his position that the admission of such evidence caused reversible error. The testimony concerning defendant's companion was admissible because it was intertwined with the proofs at trial. The rest of the testimony was admissible, as it was relevant on the element of defendant's intent to deliver. See MRE 401. The determination of relevancy rests within the discretion of the trial court and will not be upset on appeal in the absence of a clear abuse of discretion. People v. Strickland, 78 Mich.App. 40, 259 N.W.2d 232 (1977). We conclude that the trial court did not abuse its discretion in admitting this evidence.

Defendant also argues that the trial court erred in denying defendant's motion to suppress the evidence seized at the time of defendant's arrest. Defendant contends that the evidence seized should not have been admitted because the police officers had no warrant and no probable cause existed for either the arrest or the search and seizure. We note that, in reviewing a trial court's ruling on a motion to suppress evidence, this Court has recently applied both the abuse of discretion and the clearly erroneous standards. People v. McIntosh, 110 Mich.App. 139, 146, 312 N.W.2d 415 (1981); People v. Miller, 110 Mich.App. 270, 275, 312 N.W.2d 225 (1981).

An officer may arrest a person without a warrant when he has probable cause to believe that a felony has been committed and probable cause to believe that such person has committed it. M.C.L. Sec. 764.15; M.S.A. Sec. 28.874. In reviewing a claim that a police officer lacked probable cause to arrest, the reviewing court must determine whether facts available to the officer at the moment of arrest would justify a fair-minded person of average intelligence in believing that the suspected person had committed a felony. Each case must be analyzed in...