People v. Williams, Docket No. 114790

• Decision Date: 18 March 1991
• Docket Number: Docket No. 114790
• Citation: 188 Mich.App. 54,469 N.W.2d 4
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald M. WILLIAMS, a/k/a Jacobie Lindsey, Defendant-Appellant. 188 Mich.App. 54, 469 N.W.2d 4
• Court: Court of Appeal of Michigan — District of US

Page 4

469 N.W.2d 4

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald M. WILLIAMS, a/k/a Jacobie Lindsey Defendant-Appellant.

Docket No. 114790.

188 Mich.App. 54, 469 N.W.2d 4

Court of Appeals of Michigan.

Submitted Dec. 4, 1990, at Grand Rapids.

Decided March 18, 1991, 9:40 a.m.

Released for Publication May 17, 1991.

[188 MICHAPP 55] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the People.

Susan F. Reed, Detroit, for defendant-appellant on appeal.

Before GRIBBS, P.J., and REILLY and NEFF, JJ.

NEFF, Judge.

Following a bench trial, defendant was convicted of possession of less than fifty grams of cocaine, M.C.L. Sec. 333.7403(2)(a)(iv); M.S.A. Sec. 14.15(7403)(2)(a)(iv), and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant was sentenced to the mandatory two-year consecutive term of imprisonment for the felony-firearm conviction and to two to four years' imprisonment for the possession of cocaine [188 MICHAPP 56] conviction. Defendant now appeals as of right, and we affirm.

I

Defendant's convictions arose out of events that occurred on August 26, 1987, in the City of Detroit. Two officers from the Detroit Police Department were on routine patrol when they noticed two men on the porch of an abandoned house.

The officers entered the house and went up a flight of stairs, shouting that they were police officers. Upon entering the upstairs living room, the officers encountered defendant and another man. Defendant was spraying lighter fluid into a small can on the floor. The other man, Xavier Fielder, was sitting on a milk crate, holding matches. When Fielder stood up, a plastic bag containing suspected cocaine dropped onto the floor from his lap. The officers confiscated this bag, as well as thirty-four similar packets from the can on the floor. One of these packets was later tested and found to contain cocaine.

When defendant was searched, the officer found a revolver in the rear pocket of defendant's pants and a plastic bag containing powder in another pocket. The officers also confiscated $263 from a small table located about two feet from defendant and Fielder.

II

Defendant first contends that the prosecution failed to prove beyond a reasonable doubt that he had possessed the cocaine. We disagree.

In reviewing the sufficiency of the evidence presented at a criminal bench trial, this Court must [188 MICHAPP 57] 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. People v. Petrella, 424 Mich. 221, 268-270, 380 N.W.2d 11 (1985). The trier of fact may draw reasonable inferences from the evidence, but may not indulge in inferences unsupported by direct or circumstantial evidence. Id., p. 275, 380 N.W.2d 11.

Defendant argues that the prosecution failed to prove that the packets in the can contained cocaine because the officer combined those packets with the one that had fallen from Fielder's lap. However, the laboratory analysis stipulated to by defendant states that the evidence envelope contained thirty-five packets, each containing a lumpy, off-white material. There is no indication that the one packet from Fielder's lap was anything but a part of this larger lot. Here, a sample of thirty-five indistinguishable packets was tested and found to contain cocaine. An inference that the entire lot contained cocaine was appropriate, regardless of whether the tested packet came from Fielder's lap or the can on the floor. See People v. Kirchoff, 74 Mich.App. 641, 647, 254 N.W.2d 793 (1977).

Defendant also argues that his presence in the room with the cocaine is not enough to prove possession. Something more than mere association must be shown to establish joint possession. The prosecution must show an additional independent factor linking the defendant with the drugs. People v. Davenport, 39 Mich.App. 252, 257, 197 N.W.2d 521 (1972). Here, defendant was discovered by police officers in an abandoned home, crouching over a can containing packets of cocaine in an apparent attempt to destroy them. There was sufficient evidence presented to allow the trial [188 MICHAPP 58] court to find that defendant had possessed the cocaine.

Defendant also suggests that the prosecution did not prove that he was not merely trying to destroy the contraband drugs. Defendant did not present this argument to the trial court, and it is therefore waived for appellate review. In any event, the issue is without merit. The possession of contraband for the mere purpose of destroying it is not unlawful. People v. Germaine, 234 Mich. 623, 626, 208 N.W. 705 (1926). Such destruction, however, must not be undertaken, "aroused by the presence of officers, to make away with evidence." Id. Had defendant presented this theory to the trial court, the court would have been justified in inferring that the attempt to burn the cocaine was an attempt to destroy evidence, not a civic-minded effort to destroy contraband.

III

Defendant next contends that the prosecutor's failure to provide defendant or his counsel with a witness list thirty days before trial, as required by M.C.L. Sec. 767.40a(3); M.S.A. Sec. 28.980(1)(3), requires dismissal of the charges against him. We disagree.

M.C.L. Sec. 767.40a(3); M.S.A. Sec. 28.980(1)(3) provides:

Not less than 30 days before the trial, the prosecuting attorney shall send to the defendant or his or her attorney a list of the witnesses the prosecuting attorney intends to produce at trial.

Defendant cites no authority for his argument that noncompliance with Sec. 40a(3) requires automatic dismissal, and we can find none.

A trial court must exercise discretion in fashioning a remedy for noncompliance with a discovery [188 MICHAPP 59] statute, rule, order, or agreement. People v. Clark, 164 Mich.App. 224, 229, 416 N.W.2d 390 (1987). If indeed there was noncompliance with the statute,...