People v. Richardson, Docket No. 71883

• Citation: 139 Mich.App. 622,362 N.W.2d 853
• Decision Date: 22 February 1985
• Docket Number: Docket No. 71883
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Reginald RICHARDSON, Defendant-Appellant. 139 Mich.App. 622, 362 N.W.2d 853
• Court: Court of Appeal of Michigan (US)

Page 853

362 N.W.2d 853

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Reginald RICHARDSON, Defendant-Appellant.

Docket No. 71883.

139 Mich.App. 622, 362 N.W.2d 853

Court of Appeals of Michigan.

Submitted June 13, 1984.

Decided Dec. 17, 1984.

Released for Publication Feb. 22, 1985.

[139 MICHAPP 624] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Peter D. Houk, Pros. Atty., Robert B. Ebersole, Chief Appellate Atty., and Charles R. Toy, Asst. Pros. Atty., for the people.

James R. Neukard, State Appellate Defender by James Krogsrud, Detroit, for defendant-appellant on appeal.

Before V.J. BRENNAN, P.J., and CYNAR and OPPLIGER ^*, JJ.

OPPLIGER, Judge.

Defendant was charged with possession with intent to deliver cocaine, M.C.L. Sec. 333.7401(1), (2)(a)(iv); M.S.A. Sec. 14.15(7401)(1), (2)(a)(iv), and was convicted by a jury of the lesser included offense of possession of cocaine, M.C.L. Sec. 333.7403(1), (2)(a)(iv), M.S.A. Sec. 14.15(7403)(1), (2)(a)(iv). He was sentenced to one year in the county jail, and appeals as of right.

Defendant contends that there was insufficient [139 MICHAPP 625] evidence to support the conviction of possession of cocaine. We do not agree.

In reviewing the issue, this Court views the evidence in a light most favorable to the prosecution and determines whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979), cert. den. sub nom Michigan v. Hampton, 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110 (1980). Circumstantial evidence and reasonable inferences arising from the evidence may constitute satisfactory proof of the elements of the offense. People v. Hunten, 115 Mich.App. 167, 171, 320 N.W.2d 68 (1982); People v. Mumford, 60 Mich.App. 279, 283, 230 N.W.2d 395 (1975).

The offense of possession of a controlled substance requires proof that defendant had actual or constructive possession of the substance. 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. Hunten, supra; People v. Simpson, 104 Mich.App. 731, 733, 305 N.W.2d 249 (1980); People v. Mumford, supra.

The evidence of possession in this case was entirely circumstantial. The cocaine was found in a drawer of a water bed located in one of the bedrooms of the apartment. Also found in the drawer were several receipts and other personal papers with defendant's name on them. Some of the papers were dated as recently as one or two months before the search occurred, while others were several years old. Although there was evidence that several persons had access to the bedroom, we believe that the presence of defendant's papers in the drawer supports a reasonable inference that defendant exercised control over the [139 MICHAPP 626] contents of the drawer and knew that the cocaine was present. Viewing the evidence in a light most favorable to the prosecution, we find that there was sufficient evidence that defendant constructively possessed the cocaine.

We disagree with defendant's contention that the prosecution was bound to disprove all theories consistent with defendant's innocence. See People v. Davenport, 39 Mich.App. 252, 256, 197 N.W.2d 521 (1972). We agree with panels of this Court which have held it sufficient if the prosecution proves its own theory beyond a reasonable doubt. People v. Doss, 122 Mich.App. 571, 575, 332 N.W.2d 541 (1983), lv. den. 417 Mich. 1100.16 (1983); People v. Kramer, 108 Mich.App. 240, 250, 310 N.W.2d 347 (1981).

Defendant also contends that the trial court erred in denying his motion for a directed verdict of acquittal on the charged offense of possession with intent to deliver cocaine. Defendant's acquittal on the charged offense does not preclude appellate review of this issue. People v. Vail, 393 Mich. 460, 464, 227 N.W.2d 535 (1975).

Also found in the drawer with the cocaine was a list containing two columns of numbers. A police officer testified that based upon his experience, the paper was a list of standard prices for cocaine. The search also produced a triple-beam scale, a two-gram scale, a food grinder with white powder residue in it and an amount of lactose powder or milk sugar. There was testimony that these items were commonly used in preparing cocaine for sale. Furthermore, two of the three bundles of cocaine in the water bed drawer were marked with the numbers 50 and 75, respectively. A police officer testified that these numbers probably represented the dollar prices of the packaged cocaine. We find that this evidence, together with the evidence of [139 MICHAPP 627] possession discussed above, was sufficient to warrant instructing the jury on the charged offense of possession with intent to deliver.

Defendant also argues that the prosecutor improperly elicited testimony concerning defendant's initial failure to give his name and address to the police at the time of arrest. He argues that the references violated his right to remain silent under People v. Bobo, 390 Mich. 355, 212 N.W.2d 190 (1973); U.S. Const. Am. V, and Const. 1963, art. 1, Sec. 17. We do not agree.

Defendant argues that his rights were violated during the prosecutor's direct examination of two police officers and during the cross-examination of defendant. Officer Sargeant was asked by the prosecutor what individuals he identified at the apartment. The witness stated that he obtained identification from Evonne Richardson and from Michelle Blackwell, but did not obtain identification from the male (defendant). Officer Isaac similarly testified on direct examination that defendant "wouldn't identify himself to me for some time". Officer Isaac further testified that all three of the individuals stated that they did not live at the apartment and that they were just visiting a friend and happened to be there when the police arrived. No objection was raised to the above...