STATE OF MICHIGAN COURT OF APPEALS

Transcription

1 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED January 4, 2011 v No Oakland Circuit Court MANJEET SINGH BHATTAL, LC No FC Defendant-Appellant. Before: GLEICHER, P.J., and ZAHRA and K. F. KELLY, JJ. PER CURIAM. Defendant appeals as of right his jury trial conviction of conspiring to deliver and/or possess with intent to deliver at least 1,000 or more grams of cocaine, MCL a; MCL Defendant was sentenced to 10½ to 30 years imprisonment. We affirm. I. SUFFICIENCY OF THE EVIDENCE Defendant maintains that there was insufficient evidence to support his conviction. We disagree. A challenge to the sufficiency of the evidence is reviewed de novo and in a light most favorable to the prosecution to determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Cline, 276 Mich App 634, 642; 741 NW2d 563 (2007) (citation and quotation marks omitted). All conflicts with regard to the evidence must be resolved in favor of the prosecution. Circumstantial evidence and reasonable inferences drawn from it may be sufficient to prove the elements of the crime. People v Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005) (internal citation omitted). To establish a conspiracy, the prosecution must show that there was an agreement, either express or implied, between two or more persons to commit an illegal act, or a legal act accomplished in an illegal manner. MCL a. An overt act by the defendant is not required to prove a conspiracy, because the essence of the offense is the agreement itself. People v Meredith (On Remand), 209 Mich App 403, 408; 531 NW2d 749 (1995). Further, [t]o be convicted of conspiracy to possess with intent to deliver a controlled substance, the prosecution was required to prove that (1) the defendant possessed the specific intent to deliver the statutory minimum as charged, (2) his coconspirators possessed the specific intent to deliver the statutory minimum as charged, and (3) the defendant and his coconspirators possessed the specific intent to combine to deliver the statutory minimum as charged to a third person. -1-

2 People v Justice (After Remand), 454 Mich 334, 349; 562 NW2d 652 (1997). A defendant s specific intent, like any other fact, may be proven indirectly by inference from the conduct of the accused and surrounding circumstances from which it logically and reasonably follows. People v Lawton, 196 Mich App 341, 349; 492 NW2d 810 (1992). Contrary to defendant s position, our review of the record reveals that the evidence was sufficient to support defendant s conviction. Hours after coconspirator David Trevino was arrested on March 23, 2007, coconspirator Andon Filipi told defendant, That has to be moved. In response to this, defendant took coconspirator Anthony Gonzalez to the taxi office, which was used by both defendant and Filipi and previously unknown to Gonzalez, and moved two heavy bags, which were hidden in the ceiling, to the trunk of a taxicab that defendant had backed up to the building. Testimony revealed that the bags were too heavy for their size to be holding marijuana. 1 Three days later, defendant rented a Ford SUV. Filipi and Gonzalez were driving this Ford SUV they were arrested for the cocaine in Michigan. Coconspirator Trevino s fingerprint was found on one of the packages of cocaine seized in Michigan. Defendant made a number of phone calls to both Filipi and Gonzalez around the same time that the officer stopped the Ford SUV. And, several hours later, around 7 p.m., defendant spoke with David Ruiz, who was Filipi s cocaine supplier. Half an hour later, defendant reported the Ford SUV stolen by his business partner, whose name he allegedly could not recall. The juxtaposition of these facts creates an inference that the black bags contained cocaine, which was the same cocaine seized in Michigan, and that defendant had worked in concert with his coconspirators to achieve the concealment and delivery of the cocaine. Given that one of Trevino s fingerprints was recovered from one of the brick s of cocaine, a jury could reasonably infer that the bags in question contained the same 12 kilograms of cocaine that were later seized in Michigan. Further, the fact that defendant knew what Filipi was referencing when Filipi stated, That has to be moved, demonstrates that defendant knew where the cocaine was concealed and tends to show that Filipi and defendant, knowing that Trevino had knowledge that the black bags contained cocaine, feared that Trevino might tell police about the bags whereabouts. Further, once defendant found out that police had apprehended Filipi and Gonzalez and he had spoken to Filipi s cocaine dealer, defendant made attempts conceal his involvement in the matter by lying to the police that his rental car had been stolen. A jury may infer consciousness of guilt from evidence of lying or deception. People v Unger, 278 Mich App 210, 227; 749 NW2d 272 (2008). Thus, when the evidence, as a whole, is viewed in a light most favorable to the prosecution, combining defendant s intimate knowledge of and involvement with the hidden bags, his active involvement with procuring the car used to transport the cocaine, his repeated contact with Filipi on the day of the cocaine arrest, his deceptive behavior with the police, and his contact with the cocaine supplier just prior to reporting the rented SUV stolen, a jury could reasonably have concluded that defendant was part of a conspiracy to deliver and/or possess with intent to deliver 12 kilograms of cocaine in Michigan. Accordingly, defendant s claim fails. 2 Because defendant s sufficiency of the 1 Gonzalez also testified that the bags weighted approximately ten pounds each, or 20 pounds total. We take judicial notice that 12 kilograms equates to approximately 26 pounds. 2 Defendant s contention that Gonzalez s testimony established that defendant never dealt with (continued ) -2-

3 evidence argument fails, his argument that his guilty verdict is against the great weight of the evidence similarly fails. II. 404(b) EVIDENCE Defendant next argues that the trial court improperly admitted impermissible character evidence of past marijuana dealings in violation of MRE 404(b). While defendant concedes that this evidence was offered for a proper purpose, he argues that it was not relevant and that its probative value was substantially outweighed by the danger of unfair prejudice. We disagree. We review a trial court s decision whether to admit evidence for an abuse of discretion. People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). Generally, all evidence that is relevant is admissible, while irrelevant evidence is not admissible. MRE 402. However, [w]here the relevance of the proposed evidence is to show the defendant s character or the defendant s propensity to commit crime, the evidence must be excluded. People v Knox, 469 Mich 502, 510; 674 NW2d 366 (2004); see also MRE 404(b) 3. Nonetheless, evidence that implicates MRE 404(b) may be admissible, if it is offered for a proper purpose. Knox, 469 Mich at 509. A proper purpose is one other than establishing a defendant s character to show propensity to commit the charged offense. People v Johnigan, 265 Mich App 463, 465; 696 NW2d 724 (2005). Further, the evidence must also be relevant and its probative value must not be outweighed by unfair prejudice. People v VanderVliet, 444 Mich 52, 74; 508 NW2d 114 (1993). At trial, the prosecution elicited testimony that described several marijuana transactions that Gonzalez, Filipi, and defendant conducted. The first involved a trip from the Chicago area to Indiana sometime in Defendant and Gonzalez drove to a casino, met two individuals, picked up between 150 and 200 pounds of marijuana, and returned to Illinois. After returning to Illinois, defendant and Gonzalez met with Filipi, and they agreed that Gonzalez would store the marijuana in his apartment. The second marijuana transaction, about a month later, also involved Gonzales, Filipi, and defendant. Defendant and Gonzalez drove separately from Illinois to Indiana to meet the same two individuals again. Once they arrived, Gonzalez s truck was loaded with another 150 to 200 pounds of marijuana. Gonzalez drove his loaded truck ( continued) cocaine is unavailing. Gonzalez indicated that he never dealt with defendant with regard to cocaine. However, each conspirator need not have full knowledge of the extent of the conspiracy and a conspirator need not know of all the other conspirators. People v Hunter, 466 Mich 1, 7; 643 NW2d 218 (2002). 3 MRE 404(b)(1) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identify, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case. -3-

4 back to Illinois and defendant followed. Gonzalez and defendant then met up with Filipi and they agreed on how to store the marijuana. Testimony was also elicited regarding how these dealings evolved into the alleged cocaine transaction, i.e., Filipi knew a cocaine dealer who sold cocaine that did not burn your nose. Given this testimony, defendant s contention that the prosecution failed to produce evidence in support of the purpose for which the MRE 404(b) evidence was offered is baseless. This evidence was not offered to show that defendant had a propensity to deliver narcotics, but instead was offered to show the relationship between defendnat, Gonzalez, and Filipi, to explain how the relationship evolved over time, and to refute any claims of innocent intent or lack of knowledge. 4 Consequently, as defendant concedes, the evidence was offered for a proper purpose and did not run afoul of MRE 404(b). Moreover, the probative value of this evidence was not substantially outweighed by the risk of unfair prejudice. MRE 403. This is not a case where marginally probative evidence will be given undue or preemptive weight by the jury. People v Ortiz, 249 Mich App 297, 306; 642 NW2d 417 (2001). Rather, the evidence tended to show that defendant had an extensive relationship with both Filipi and Gonzalez, and also that defendant had knowledge of, and an intent to participate in, drug trafficking. This knowledge and intent makes defendant s defense, that all of his actions in the instant matter were mere innocent acts, less likely to be true. Accordingly, the evidence had a very high probative value. Further, while it is clear that the evidence did possess some danger of unfair prejudice, i.e., because a jury could presume that because defendant was involved in marijuana transactions he was involved in a cocaine transactions, it cannot be said to substantially outweigh its probative value. In fact, we note that the trial court gave a limiting instruction, which forbade the jury from using the evidence in this improper manner. Since jurors are presumed to follow the court s instructions, People v Gayheart, 285 Mich App 202, 210; 776 NW2d 330 (2009), the actual danger of unfair prejudice is lessened, see People v Starr, 457 Mich 490, 503; 577 NW2d 673 (1998). Because the evidence of the marijuana dealings was relevant, was offered for a proper purpose, and was not substantially more unfairly prejudicial than probative, the evidence was properly admitted. The trial court did not abuse its discretion by admitting the evidence and defendant is not entitled to relief on this basis. III. PROSECUTORIAL MISCONDUCT Finally, defendant contends that the prosecution engaged in several instances of misconduct that denied him a fair trial. We will review defendant s misconduct claims de novo, unless otherwise noted. People v Ackerman, 257 Mich App 434, 448; 669 NW2d 818 (2003). The test is whether a defendant was denied a fair and impartial trial due to the actions of the prosecutor. People v Rodriguez, 251 Mich App 10, 29; 650 NW2d 96 (2002). A. FACTS NOT IN EVIDENCE 4 At trial, defendant repeatedly argued that his actions were simply innocent acts unrelated to any conspiracy. -4-

5 Defendant first argues that the prosecutor argued facts not in evidence during opening statement and closing argument. Specifically, defendant maintains that the prosecutor, in both arguments, indicated that the bags in the taxi office contained cocaine and that defendant had knowledge of their contents. We disagree. Because defendant failed to object below, our review is for plain error affecting defendant s substantial rights. Ackerman, 257 Mich App at 448. Defendant has failed to show any error. The evidence presented at trial showed that the bags were too heavy for their size to be carrying marijuana, that a police dog alerted to the presence of narcotics on the ceiling in the taxi office, that coconspirator Trevino s fingerprint was found on one of the packages of cocaine seized in Michigan, and that Filipi and defendant felt compelled to remove the hidden bags from the office within hours of Trevino s arrest. Prosecutors are permitted to argue from the evidence admitted and to make reasonable inferences in support of their case during closing argument, People v Christel, 449 Mich 578, ; 537 NW2d 194 (1995). That is exactly what the prosecutor was doing here. Moreover, the prosecution s reference during opening argument, that the bags hidden in the ceiling contained cocaine, also did not constitute misconduct. As long as a prosecutor does not offer her personal belief of a defendant s guilt, a prosecutor can summarize what she thinks the evidence will show. People v Ericksen, Mich App ; NW2d (2010). Nonetheless, the reasonable inferences from the evidence produced at trial supported the prosecutor s opening statement. Defendant was not denied a fair trial due to the prosecutor s remarks in opening and closing argument. B. TESTIMONY OF PROSECTUOR Defendant next argues that the prosecutor provided false testimony, when she asked Gonzalez, [H]ow long would you estimate that you were inside the building before you took the cocaine out? Defense counsel immediately objected to this question, presumably on the basis that that there was no direct evidence that the bags removed from the building contained cocaine. Before the trial court could respond, the prosecutor apologized, I m sorry, and rephrased the question, to state, [W]hen you took the bags out. It is true that in extreme cases, a prosecutor s probing into improper subject matter may be so prejudicial that it denies a defendant a fair trial. People v Griffin, 235 Mich App 27, 45; 597 NW2d 176 (1999), rev d on other grounds 477 Mich 146 (2007). However, that is not the case here. The prosecutor apologized and immediately posed a proper question to the witness. Thus, the question, while improper, did not deprive defendant of a fair trial. Defendants are guaranteed a fair trial, not a perfect trial. People v Mosko, 441 Mich 496, 503; 495 NW2d 534 (1992). Moreover, the trial court instructed the jurors that they were only to consider the evidence presented, which does not include the lawyers questions to the witnesses. Thus, any error was cured by the instruction. Unger, 278 Mich App at 235. C. IMPERMISSIBLE EXAMINATION Defendant also claims that the prosecutor improperly elicited testimony that rental cars are indicative of drug trafficking and improperly asked Gonzalez why he was afraid. Defendant, however, fails to explain why or how these statements denied him a fair trial. Instead, his allegations are conclusory. A defendant may not merely assert a claim of error and then leave it to this Court to search for factual or legal support for the claim. People v Martin, -5-

6 271 Mich App 280, 315; 721 NW2d 815 (2006). Consequently, any claim by defendant questioning the validity of the inventory search itself is abandoned. See id. In any case, we fail to see how these lines of questioning denied defendant a fair trial in light of the trial court s instructions to the jury that the lawyers questions are not evidence and that it was not to consider any excluded evidence. See Unger, 278 Mich App at 235. None of the incidents of alleged misconduct deprived defendant of a fair trial. Affirmed. /s/ Brian K. Zahra /s/ Kirsten Frank Kelly -6-

7 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED January 4, 2011 v No Oakland Circuit Court MANJEET SINGH BHATTAL, LC No FC Defendant-Appellant. Before: GLEICHER, P.J., and ZAHRA and K.F. KELLY, JJ. GLEICHER, J. (concurring). I concur in the majority s decision to affirm defendant s conviction, but write separately to explain the basis for my view that sufficient and admissible evidence supported the jury s verdict. On March 29, 2007, police in Troy discovered 12 kilograms of cocaine in a Ford Expedition licensed in Illinois, and occupied by Andon Filipi and Anthony Gonzalez. Subsequently, the Oakland County prosecutor charged that defendant Manjeet Bhattal (also known as Mani) and codefendants Filipi, Gonzalez, Tonin Prendi, and David Trevino had conspired to deliver the cocaine. Gonzalez testified for the prosecution in exchange for a plea agreement limiting his minimum sentence to two and a half years. Gonzalez commenced his trial testimony by describing the nature and history of his relationships with Bhattal, Filipi and Trevino. He explained that he grew up in the Chicago area with Filipi and Trevino, and that all of the alleged conspirators continued to reside there. Gonzalez related that for several years, he and the charged conspirators, including Bhattal, worked together in a marijuana enterprise. Gonzalez recounted that he began purchasing large quantities of marijuana from Filipi around two years before the Troy cocaine bust. During their marijuana business dealings, Gonzalez accompanied Filipi on a drive to an apartment complex in Waterford, Michigan. There, Filipi delivered $50,000 cash to an Albanian man who Filipi identified as his connection s brother-in-law. Gonzalez believed that Filipi s marijuana connection was from Canada. Over the vigorous objection of Bhattal s counsel, Gonzalez also detailed a series of marijuana transactions involving Bhattal. Gonzalez testified that between August 2006 and December 2006, he and Bhattal drove from Chicago to the Horseshoe Casino in Indiana, where they picked up 150 to 200 pounds of marijuana. When they arrived at the casino, Bhattal handed -1-

8 Gonzalez the key to a Dodge pickup truck, which Gonzalez used to transport the marijuana back to Illinois. When the marijuana had been sold, Gonzalez and Bhattal made a second trip to Indiana, picked up another 150 to 200 pounds of marijuana, and again transported the load to Illinois. At some point after the second marijuana road trip with Bhattal, Filipi introduced Gonzalez to David Ruiz. 1 Gonzalez recounted that Ruiz supplied cocaine to Filipi, and was a friend to both Filipi and Bhattal. Gonzalez encountered Ruiz a second time at an establishment he described as a bar slash club in Chicago, where Bhattal joined them. Trevino, a lower-level participant in the drug enterprise, lived in a Chicago-area apartment owned by Filipi, and watched over marijuana stored there. On March 23, 2007, Trevino s girlfriend called the police after an episode of domestic violence, and Trevino alerted Filipi that a police visit to the apartment was imminent. When Filipi received Trevino s call, he was in a car with Gonzalez, driving to Bhattal s house [t]o meet with Mani. They picked up Bhattal, drove to Trevino s apartment, and noted the presence of police vehicles. After Filipi went home, Gonzalez and Bhattal drove around together all night, using cocaine. Gonzalez remembered that as they drove, Filipi telephoned Bhattal, and Gonzalez heard Filipi declare, [T]hat has to be moved. The next morning, March 24, 2007, Gonzalez and Bhattal drove to a taxi dispatch office that Bhattal and Filipi had rented. Bhattal unlocked the taxi office and removed some ceiling tiles, revealing two black computer... laptop bags. Bhattal instructed Gonzalez to extract the bags from the ceiling and place them into the trunk of a taxi cab that Bhattal backed up to the building. Gonzalez described the bags as fairly heavy. In response to questioning by the prosecutor, Gonzalez elaborated as follows concerning the weight of the bags: Q. And did, were the bags that you carried, would they have fit say 10 pounds of marijuana in them each? A. No. Q. Okay. So the size of the bags that you carried would not fit 10 pounds of marijuana, right? A. Correct. Q. Okay. Were the bags heavier than 10 pounds? A. Apiece? Q. Yes. A. Uh, they were around 10 pounds. 1 The record also refers to Ruiz as David Roese. -2-

9 Q. Apiece? A. I believe. [2] After placing the bags in the taxi, Gonzalez and Bhattal picked up Ruiz, who already knew of Trevino s arrest. Eventually they dropped off Ruiz, and Gonzalez transported Bhattal home. Two days later, on March 26, 2007, Bhattal rented a Ford Expedition at O Hare Airport. On March 27, 2007, Filipi and Prendi purchased cell phones at a store in Waterford, Michigan. The store s owner recalled that the next day, Filipi and Prendi returned to the store, and Bhattal arrived in an Expedition bearing Illinois plates. Bhattal proceeded to purchase the same model cell phone as had Filipi and Prendi. Evidence supplied by an Illinois detective established that Bhattal had flown to Michigan that morning. Gonzalez testified that on the night of March 28, 2007, Bhattal and Filipi arrived at Filipi s Chicago-area apartment in an Expedition. Filipi, Bhattal and Gonzalez then drove the Expedition to O Hare airport, so that Bhattal could retrieve a truck Filipi had parked there. On March 29, 2007, Gonzalez and Filipi drove the Expedition to Michigan, where they met Prendi at a car wash. Filipi pulled a bag from Prendi s vehicle and placed it in the back of the Expedition. Gonzalez understood that the bag contained cocaine destined for delivery to Canada. At 5:00 p.m., the police stopped the Expedition, and shortly thereafter discovered the cocaine. Bhattal asserts that Gonzalez s testimony concerning the 2006 marijuana transactions constituted prior bad acts evidence inadmissible under MRE 404(b), and that no evidence supported Bhattal s knowledge that Gonzalez and Filipi were dealing in cocaine. According to Bhattal s brief on appeal, [T]here was no evidence of any specific intent on the part of Mr. Bhattal to either deliver, or conspire to deliver, cocaine. (Emphasis in original). Although I agree with the majority s resolution of both issues, I propose a somewhat different analysis. Bhattal submits that because Gonzalez repeatedly stated that Mr. Bhattal was not involved with the cocaine transactions involving Gonzalez, Filipi and Prendi, the prosecutor improperly widen[ed] the scope of the case by tying [Bhattal] to previous marijuana deals. Bhattal insists that the marijuana evidence qualified as inadmissible under MRE 404(b), and that its presentation prejudiced his defense. Bhattal acknowledges that background or res gestae evidence does not implicate MRE 404(b), but argues that no evidence tended to support that Bhattal s marijuana trafficking evolved into participation in the cocaine conspiracy. The majority adopts an analysis predicted on MRE 404(b), concluding that the marijuana evidence evidenced Bhattal s knowledge of, and intent to participate in, drug trafficking. Ante at 6. In my view, MRE 404(b) does not govern the admissibility of the evidence of Bhattal s participation in a marijuana drug enterprise because the prosecutor admitted it to give the jury an intelligible presentation of the full context in which disputed events took place. People v 2 As noted in the majority opinion, 12 kilograms of cocaine weigh approximately 26 pounds. Ante at 2 n

10 Sholl, 453 Mich 730, 741; 556 NW2d 851 (1996). Consequently, I disagree with the majority to the extent that it relies on Bhattal s intent and knowledge as proper bases for admitting the evidence. 3 In United States v Hardy, 228 F3d 745, 748 (CA 6, 2000), the United States Court of Appeals for the Sixth Circuit defined background or res gestae evidence as consisting of those other acts that are inextricably intertwined with the charged offense or those acts, the telling of which is necessary to complete the story of the charged offense. The Sixth Circuit further explained: Proper background evidence has a causal, temporal or spatial connection with the charged offense. Typically, such evidence is a prelude to the charged offense, is directly probative of the charged offense, arises from the same events as the charged offense, forms an integral part of a witness s testimony, or completes the story of the charged offense. [Id.] In United States v Barnes, 49 F3d 1144, 1149 (CA 6, 1995), a case cited in Hardy, 228 F3d at 748, the Sixth Circuit distinguished evidence implicating FRE 404(b) from evidence detailing a continuing pattern of illegal activity. The Sixth Circuit characterized evidence admitted under FRE 404(b) as extrinsic, because it describes other crimes, wrongs or acts that occur at different times and under different circumstances from the offense charged. Id. In contrast, conduct intrinsic to the charged crime falls outside the scope of FRE 404(b). Id. Here, Gonzalez s testimony depicting Bhattal s role in acquiring large quantities of marijuana established that Bhattal and his conspiracy codefendants regularly worked together in furtherance of a unitary drug enterprise. Bhattal s marijuana activities connected closely in time with the cocaine delivery and involved the same cast of characters. The circumstances surrounding Bhattal s marijuana-related links to Filipi and Gonzalez provided context to Bhattal s actions after the police visit to Trevino s apartment and fleshed out the structure of the conspiracy. In my view, the marijuana evidence tended to prove that Filipi, Gonzalez, Trevino and Bhattal engaged in a single conspiracy to violate drug laws, rather than two separate and distinct enterprises distinguished by differing product lines. Seemingly independent transactions may be revealed as parts of a single conspiracy by their place in a pattern of regularized activity involving a significant continuity of membership. United States v Grassi, 616 F2d 1295, 1303 (CA 5, 1980). In reaching this conclusion, I remain mindful that courts should use great care in characterizing evidence as inextricably intertwined with a charged offense, lest this avenue of admissibility circumvent MRE 404(b). See United States v Bowie, 232 F3d 923, 928 (CA DC, 2000): 3 The record reveals that the prosecutor never invoked MRE 404(b) in support of the admission of the challenged evidence. -4-

11 [T]reating evidence as inextricably intertwined not only bypasses Rule 404(b) and its attendant notice requirement, but also carries the implicit finding that the evidence is admissible for all purposes notwithstanding its bearing on character, thus eliminating the defense s entitlement, upon request, to a jury instruction. See Fed R Evid 105. There is, as well, a danger that finding evidence inextricably intertwined may too easily slip from analysis to mere conclusion. What does the inextricably intertwined concept entail? When is a defendant s crime or act so indistinguishable from the charged crime that an item of evidence is entirely removed from Rule 404(b)? Bearing in mind the cautions expressed in Bowie, I believe that the marijuana conspiracy evidence presented here seamlessly blended with Bhattal s actions in furtherance of the cocaine delivery. Instead of representing an entirely separate chapter of Bhattal s life, the marijuana evidence showed a continuing pattern of illegal activity that removed the evidence from the realm of MRE 404(b). But even excluding any consideration of Bhattal s participation in the marijuana transactions, sufficient evidence existed to convict Bhattal of conspiring to deliver the 12 kilograms of cocaine found inside the Expedition. Given Bhattal s friendship with Ruiz and Filipi, his close association with both of them on the night the police visited Trevino s apartment, and the movement of the ceiling contents the next morning, the prosecutor s circumstantial evidence reasonably tended to establish beyond a reasonable doubt Bhattal s awareness that Trevino s domestic problems had jeopardized the secrecy of a quantity of hidden cocaine. Furthermore, a jury could readily infer that Bhattal rented the Expedition to facilitate transportation of the cocaine from Illinois to Canada, and that he bought a matching cell phone to coordinate communications with his coconspirators. 4 Moreover, Gonzalez s description of the weight of the bags removed from the taxi office ceiling is consistent with the contents comprising 12 kilograms of cocaine, not marijuana. Because a reasonable probability exists that the laptop bags contained cocaine, the jury could have reasonably inferred that Bhattal s actions in removing the bags furthered the interests of the conspiracy. [T]he prosecution need not negate every reasonable theory consistent with the defendant s innocence, but merely introduce evidence sufficient to convince a reasonable jury in the face of whatever contradictory evidence the defendant may provide. People v Konrad, 449 Mich 263, 273 n 6; 536 NW2d 517 (1995). Although Bhattal argues that Gonzalez exculpated him by testifying that Bhattal lacked awareness of the cocaine conspiracy, a jury could have disbelieved Gonzalez s testimony on this point. The trier of fact is free to believe or disbelieve, in whole or in part, any of the evidence 4 The evidence shows that someone other than Bhattal drove the Expedition to Michigan, and Bhattal s awareness that the vehicle he rented at O Hare airport had been driven to Michigan. In light of this evidence, a jury could reasonably infer that Bhattal traveled to Michigan on March 28, 2007 in furtherance of the conspiracy s objectives. -5-

12 presented at trial. People v Eisenberg, 72 Mich App 106, 115; 249 NW2d 313 (1976). For these reasons, I agree with the majority that sufficient clear and convincing evidence supports Bhattal s conviction for conspiring to deliver more than 1,000 grams of cocaine. /s/ Elizabeth L. Gleicher -6-